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 Library 
 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019379811 
 
THE LAW APPLIED TO 
 
 MOTOR VEHICLES 
 
 CITING 
 
 ALL THE REPORTED CASES 
 
 Decided During the First Fifteen Years of the Use of 
 Motor Vehicles upon the Public Thoroughfares 
 
 CHARLES J. BABBITT 
 
 Of the MASSAcflusETTs Bar, 
 Author of "Index-Digest of Massachusetts Motor Vehicle Lanu." 
 
 SECOND EDITION 
 
 By 
 
 ARTHUR W. BLAKEMORE 
 
 Of the Massachusetts Bar, 
 Author of "Blakemore and Bancroft on Inheritance Taxes,^" "Wills" in "Cyc," etc., etc. 
 
 JOHN BYRNE & CO. 
 
 Washington, D. C. 
 
 1917 
 
Copyright, 1911, 
 
 by 
 
 JOHN BYRNE & CO. 
 
 Copyright, 1917, 
 by 
 JOHN BYRNE & CO. 
 
SEP ^^ 
 1936 
 
 PREFACE TO SECOND EDITION. 
 
 The favor with which the first edition of this book was received by 
 the public and the number of cases respecting motor vehicles which 
 have been decided since the publication of the first edition made it 
 seem desirable, notwithstanding the untimely death of Mr. Babbitt, to 
 perpetuate his learned work. The editor of this edition has preserved 
 Mr. Babbitt's text substantially intact but the development of the law 
 has made necessary the introduction of entirely new topics like "Jitneys" 
 and the extension of other topics from mere sections to entire chapters 
 as in the case of "Pedestrians," "I^aw of the Road," "Street Railways," 
 etc. The material has been re-arranged in text-book form and a special 
 effort has been made by the use o^ appropriate section headings and a 
 full index to bring out the special features contained in the cases, espe- 
 cially of the last six years. 
 
 The bulk of the new decisions fall under the general classification of 
 accident cases and the editor has made a careful attempt to group these 
 cases and index them as far as possible under their pertinent facts. 
 Feeling that the law of negligence is so well settled as to require no 
 comment but that the bar and the laymen are only interested in the 
 application of these principles to the automobile, questions of all kinds 
 ranging from whether an automobile falling into a river is a collision, 
 to the care of the automobilist towards a farmer's wife engaged in the 
 necessary occupation of belaboring a cow on the road, will be found 
 in this book classified by their facts. The use of horns, brakes, lights 
 and windshields are only a few of the topics peculiar to automobiles 
 which have been judicially considered in the last few years, and are 
 treated in this work. Moreover, the very recent development of the 
 principles governing the liability of the manufacturer for defective 
 motor vehicles well merits the careful consideration of the bar in view 
 of the frequency of accidents due to defective vehicles. 
 
 The editor asks the friendly consideration of the bar for his work 
 which has not been easy as the problem of using Mr. Babbitt's excellent 
 text to the best advantage in combination with the new cases has at 
 times been most perplexing. Arthur W. Blakemore. 
 
 Augiist I, 1916. * 
 
 iii 
 
PREFACE TO FIRST EDITION. 
 
 In preparing this as a general work, not confined to any particular 
 locality, the controlling idea has been to rest in the fundamental prin- 
 ciples of jurisprudence, the propositions of law pertinent to motor 
 vehicles. Since the institution of this form of conveyance as a means 
 of travel, much has been heard concerning discriminations for or 
 against motorists, it having been sometimes asserted that new rules 
 of law have been constructed to meet the novel conditions. A dom- 
 inating purpose of this treatise is to demonstrate that no new prin- 
 ciple of law has been invoked nor an old one strained to encounter 
 the unaccustomed situation in any of its aspects. 
 
 The method followed, is to present the doctrines of law as they have 
 long existed, and to show their application to the topic in hand. To 
 accomplish this, resort is had to the decisions of appellate courts, 
 American and English, and to the expressions of eminent writers 
 upon the several subjects involved. In so far as the circumstances 
 permit, the phraseology of the entire book is in the exact language of 
 the writers cited, the author not venturing by version of his own, to 
 tinge interpretations of the law by the masters in jurisprudence upon 
 whom reliance is placed. 
 
 Motor vehicle operation is considered from two general points of 
 view: the first relates to duties imposed by law, in other words, to 
 what everyone ought to do; the second treats the matter on its 
 negative side of negligence, that is to say, from the standpoint of 
 failure in the performance of duty. This division involves in some 
 degree, reviewing the ground, but the opportunity is thus afforded 
 for a complete survey of the field in all its parts. 
 
 To make the book efficient as a work of reference, there has been 
 collected and condensed, all the motor vehicle decisions reported in 
 the courts of all the American States, to which is added a leading 
 Canadian case and such of those decided in England, as it is thought 
 will be of value. Throughout the volume, a motor vehicle case may 
 he recognized by the addition to the citation, of the numerals of the 
 
Preface 
 
 yea/r in which the case was decided. Referring to the Table of Cases, 
 the reader will be directed to the appropriate collection number, and 
 so to the case itself. 
 
 Because the Massachusetts statute is adopted as the viewpoint of 
 motor vehicle legislation, it is not to be understood that the scope of 
 the book is limited by the provisions of that act. Some one statute 
 was necessarji^as a basis for shaping the work. No state has, as yet, 
 constructed a more efifective system of motor vehicle enactments than 
 has Massachusetts, nor one more in general harmony, in its main fea- 
 tures, with the statutes of other states upon the same subject. Cer- 
 tainly nowhere have steps been taken along the line of the enforce- 
 ment of such legislation to the extent that they have in this Com- 
 monwealth. Furthermore, the reports of Massachusetts are pecu- 
 liarly rich in decisions upon common law points involved in the in- 
 vestigation. Under all these circumstances, the condition of juris- 
 prudence nowhere furnishes a better vantage ground from which to 
 present a comprehensive development of the whole subject in a way 
 which it is hoped, will prove useful everywhere. 
 
 The author desires to signify his acknowledgments to the Trustees 
 of the Social Law Library of Boston, for privileges permitted, and to 
 include therein all the members of the library staff. To the assistant 
 at the State Library, whose willing aid has helped on many occasions 
 of difficulty, cordial thanks are extended. In particular, gratitude 
 is expressed to Charles F. D. Belden, Esquire, State Librarian, also 
 to Edward B. Adams, Esquire, Librarian, and Mr. Edward H. Red- 
 stone, Assistant Librarian of the Social Law Library, for their un- 
 varying kindness and cooperation. 
 
 Boston, October, ipio. 
 
 VI 
 
TABLE OF CONTENTS 
 
 CHAPTER I 
 
 DSFINITIONS 
 
 SECTION 
 
 Automobile i 
 
 "Automobile" includes "Taxicab"— Motorcycle" and "Auto Truck" 2 
 
 Motor Vehicle — Includes Motorcycles 3 
 
 "Carriage" includes Automobile and Motorcycle 4 
 
 "Pleasure Carriage" S 
 
 Not a Tool or Implement of Trade 6 
 
 The Word "Vehicle" 7 
 
 Hackney or Stage Coach 8 
 
 "Carrying a load" 9 
 
 "Motor" defined 10 
 
 Statute definitions 11 
 
 Classification of motor vehicles in the Massachusetts statute 12 
 
 "Commercial motor vehicle" 13 
 
 Garage keeper a wheelwright 14 
 
 As to the Use of Words in General , IS 
 
 CHAPTER II 
 CoNSTiTunoNAi, Considerations 
 
 In General 16 
 
 Federal Constitution distinguished 17 
 
 Constitutional power of the legislature 18 
 
 In Massachusetts 19 
 
 Inherent or implied powers 20 
 
 "Unconstitutional law" 21 
 
 Presumption against unconstitutionality 22 
 
 Unconstitutionality how pleaded 23 
 
 Who may plead unconstitutionality 24 
 
 Raising question of constitutionality 25 
 
 CHAPTER III 
 
 The Police Power 
 
 The "police power" of the State 26 
 
 The police power and the motor vehicle 27 
 
TABI<E 0? CONTENTS 
 
 SECTION 
 
 Highway regulation— Use of number plates 28 
 
 Legislative duty and the police power 29 
 
 Power of the courts concerning police regulations 3f> 
 
 Skill and competency of operators • 3' 
 
 Driver to be "accompanied" by licensed operator 32 
 
 Steam engineers' and firemen's licenses 33 
 
 Personal character as a factor 34 
 
 Examination in case of owners 3S 
 
 CHAPTER IV 
 The Power of the Legislative to Delegate Authority 
 
 Power to delegate 36 
 
 Delegation to Park Commissioners and Municipalities in Massachusetts . . 37 
 
 Certiorari as Remedy '. 37A 
 
 Rule in other jurisdictions 38 
 
 Highway control in Massachusetts , 39 
 
 Exercise of delegated authority must be reasonable 40 
 
 Turnpike companies 41 
 
 CHAPTER V 
 
 "Class Legislation" 
 
 Special legislation 42 
 
 Special or "class" legislation 43 
 
 The rule applied to motorists 44 
 
 "Class legislation" regarding motor vehicles 45 
 
 Nature of motor vehicle laws ^ 46 
 
 Identification and restraint 47 
 
 Display of number plates is not void as an unreasonable search or testify- 
 ing against one's self 48 
 
 Where number plates not furnished 49 
 
 Requiring operator to disclose identity after accident 50 
 
 Venue where accident happened 51 
 
 Registration laws must be uniform 52 
 
 Speed limitations 53 
 
 Illegal speed prima proof of negligence 54 
 
 CHAPTER VI 
 
 Taxation 
 
 i. taxation op motor vehiaes in general 
 
 Scope of chapter __ 
 
 Definitions ,£ 
 
 SO 
 
 viii 
 
TABtt OP CONTENTS 
 
 SECTION 
 
 "Fee defined" 57 
 
 "Tax" S8 
 
 Taxes "direct" and "indirect" 59 
 
 "Ad valorem" and "specific taxes" 60 
 
 Hack line defined 61 
 
 Revenue powers of the legislature 62 
 
 Under the Federal Constitution 63 
 
 Taxes must be for public purposes 64 
 
 Taxes must not be arbitrary 65 
 
 Uniformity in taxation , . . . 66 
 
 "Class taxation" 67 
 
 Exemption of companies from taxes and licenses includes motor fee ... 68 
 
 Fee not void as double taxation , 69 
 
 Claim for return of excess fees 70 
 
 II. NATURE 
 
 "Occupation Tax," "Excise" and "License" ^ 71 
 
 "Occupation tax" 72 
 
 Purposes of an occupation tax (or 'license") y^ 
 
 Occupation tax for regulation 74 
 
 Occupation tax for revenue 75 
 
 Vehicular occupation tax (license) 76 
 
 Occupation tax in Massachusetts 77 
 
 "Excise" defined 78 
 
 "Commodities" defined 79 
 
 'Xicenses" 80 
 
 Licenses in general 81 
 
 A license defined 82 
 
 "Registration" is a license of the machine 83 
 
 License must be personal 84 
 
 Registration by dealers 85 
 
 Registration in proper name 86 
 
 Registration under trade or business name 87 
 
 "A license is not a tax" 88 
 
 Not a tax when proceeds must be used on the roads 89 
 
 III. VAIIDITY 
 
 In general go 
 
 What is meant by "reasonable" as applied to an excise tax 91 
 
 Double taxation P2 
 
 New license required under new law g. 
 
 License law not void as authorizing imprisonment for debt 94 
 
 Licenses by counties pe 
 
 ix 
 
tABlit OF CONTENTS 
 
 SECTION 
 
 Tax apportioned by State among cities and towns 96 
 
 Wheel tax 97 
 
 License tax for use on roads 9° 
 
 Delegation of authority to license 99 
 
 Jurisdiction of licensing officer 100 
 
 Power of legislature to fix duties of officers loi 
 
 Municipal authority to impose license fees 102 
 
 City license as regulation I03 
 
 IV. CLASSIFICATION OF SUBJECTS OF LICENSE 
 
 Uniformity 104 
 
 "Graded" license fees 105 
 
 Graduated fees void as a police regulation 106 
 
 License fees in excess of cost of registration — Graduated fees 107 
 
 Exemption from local taxation 108 
 
 Fees proportioned to horsepower 109 
 
 Graduation of vehicles according to number of horses no 
 
 Classification by seating capacity in 
 
 Exempting municipal vehicles 112 
 
 Classifying trucks, etc., in one class 113 
 
 Exempting pleasure vehicles and those of non-residents 114 
 
 Exempting motor vehicles and taxing horse-drawn vehicles 115 
 
 Higher rate on vehicles used for hire 116 
 
 Special rate to chaffeurs 117 
 
 Exempting traction engines 118 
 
 V. THE LAW OF LICENSE AS IT IS APPLIED TO INTOXICATING LIQUORS 
 
 Scope of treatment 119 
 
 Taxation by way of license 120 
 
 Taxation and license distinguished 121 
 
 License fees not taxation 122 
 
 Revenue not the primary object of license 123 
 
 "High license" 124 
 
 "Graded" license in this connection 125 
 
 CHAPTER Vn 
 
 Validity and Construction of Statutes and Ordinances 
 
 Object of interpretation j26 
 
 Strict contruction j26 
 
 Implied effect j2g 
 
 Language of the act to be unambiguous 120 
 
 X 
 
TABIvE of CONTENTS 
 
 SecTION 
 
 Construction of "police" regulations 130 
 
 Penal statute described 131 
 
 Construction of penal statutes 132 
 
 Construction of remedial statutes 133 
 
 Construction of revenue and tax laws 134 
 
 Construction in view of other legislation I3S 
 
 Presumption against implied repeal ^ 136 
 
 Title of the act 137 
 
 Acts relating to more than one subject 138 
 
 Construction of ordinances 139 
 
 Ignorance of the law 140 
 
 CHAPTER VIII 
 
 Suspension and RevocATiON of Licenses 
 
 General principle 141 
 
 Revocation of licenses 142 
 
 Suspension and revocation in Massachusetts 143 
 
 The rule in other states 144 
 
 License not a contract 145 
 
 Not a deprivation of property 146 
 
 Delegated authority to revoke 147 
 
 Right of licensee to rely on his license 148 
 
 Meaning of the word "conviction'" 149 
 
 What amounts to a "conviction" to work a forfeiture of license 150 
 
 Deprivation of license in addition to punishment 151 
 
 Duty of licensing officials on convictions 152 
 
 Licensee's claim that revocation is unconstitutional 153 
 
 CHAPTER IX 
 
 MuNiaPAi, Powers 
 
 Creation and control of municipal corporations 154 
 
 Constitutional limitations of legislative power 155 
 
 Municipal powers described igg 
 
 Police power of cities and towns 1157 
 
 Extent of municipal jurisdiction jeg 
 
 Suburban residents and non-residents igo 
 
 "One-way" streets jg^ 
 
 Power to delegate authority jgj 
 
 Municipal power to regulate by license 162 
 
 Traffic regulations jg. 
 
 Implied power of municipalities to control traffic 164 
 
 xi 
 
TABLS Olf CONTENTS 
 
 SECTION 
 
 Municipal regulation of speed and use in Massachusetts 165 
 
 Power of municipalities to regulate use 166 
 
 Power to prohibit use '°7 
 
 Power of municipalities to regulate speed 168 
 
 Power of municipalities to require use of number plates 169 
 
 Power of municipalities to regulate motor vehicles for hire 170 
 
 Regulating competency of operators ■ '71 
 
 Municipal taxation '72 
 
 Power to tax '73 
 
 Power to regulate does not imply power to license for revenue I74 
 
 Municipal power to license is usually conferred by the legislature I7S 
 
 License tax '7° 
 
 Double taxation in this connection "^-71 
 
 Ordinances ' '78 
 
 Requisites of a valid ordinance '79 
 
 What is meant by "reasonable" " 180 
 
 "By-law" defined 181 
 
 "Regulation" defined 182 
 
 Judicial notice of ordinances and how pleaded 183 
 
 Ordinances and regulations — how pleaded 184 
 
 Ordinances — ^how proved 185 
 
 Competency of an ordinance in a negligence case 186 
 
 Signs 187 
 
 Power of public officers to purchase or hire automobiles 188 
 
 CHAPTER X 
 
 iNTEESTAte TrAVSI, and FfiDERAI, RELATIONS 
 
 Traveling defined 189 
 
 Interstate travel 190 
 
 State statutes and the "police power" 191 
 
 "Non-resident" statutes 192 
 
 Taxing vehicles from another state 193 
 
 Taxing non-residents — reciprocal provisions 194 
 
 Registration of non-resident owners valid 195 
 
 Interstate pleasure travel beyond Federal control ig6 
 
 Interstate commerce 197 
 
 Police powers igg 
 
 Foreign diplomatic corps , . 199 
 
 The United States mail 200 
 
 Rules governing transportation on steam vessels 201 
 
 Customs duties , , 202 
 
 Customs duties under Tariff Act of 1909 203 
 
 xii 
 
TABLB OF CONTENTS 
 
 CHAPTER XI 
 
 Owners 
 
 SECTION 
 
 Scope of chapter 204 
 
 Responsibility of owners — generally 205 
 
 Definition of an owner absolute 206 
 
 Ownership imports the idea of control 207 
 
 Joint owners — Associations 208 
 
 Circumstances showing ownership 209 
 
 Registration as evidence of ownership 210 
 
 Admissions as evidence of ownership 211 
 
 Evidence of identification 212 
 
 Massachusetts statute 213 
 
 CHAPTER XII 
 
 Motor Vehiclb OPERAtaoN — ^De^ctive Machines 
 
 Scope of Chapter , 214 
 
 Meaning of the word "operation" 215 
 
 Who is the user of a motor vehicle ? 216 
 
 Principles controlling operation 217 
 
 The rule in the lUnited States 218 
 
 Canadian and English rule 219 
 
 Proper vehicle 220 
 
 The vehicle, its condition, and repairs 221 
 
 Requirements by statute 222 
 
 The general rule 223 
 
 Responsibility of motorist 224 
 
 Liability for driving defective machine 225 
 
 When steering gear breaks 226 
 
 Brakes failing 227 
 
 Iviability for furnishing defective machine to employe 228 
 
 Appliances — Brakes — Steering apparatus and clutch 229 
 
 Using engine as brake 230 
 
 Burden of proof 231 
 
 Doctrine of "Insurer" 232 
 
 The true rule of diligence 233 
 
 Pure accident 234 
 
 "Skidding" 235 
 
 Failure to steer when skidding 236 
 
 Skidding on wet car tracks 237 
 
 Evidence in skidding cases 238 
 
 Smoke laws 239 
 
 xiii 
 
TABLE 0? CONTENTS 
 
 SeCTlON 
 
 Collision with permanent structure 240 
 
 Driving in low seat 241 
 
 Forbidding passenger on handlebars of motorcycle 242 
 
 Motorcyclist bending over machine 243 
 
 CHAPTER XIII 
 
 "CHAUFPeURS" AND OPBRATOES 
 
 Scope of chapter 244 
 
 "Chauffeurs" 245 
 
 "Operator" 246 
 
 Distinction between "chauffeur" and "operator" , 247 
 
 The operator must be competent , . 248 
 
 Chauffeurs as mechanics ; 249 
 
 Relation between employer and chauffeur 250 
 
 Degree of care not less than that of motormen 251 
 
 Responsibility, generally 252 
 
 Responsibility to licensing authority 253 
 
 Excuse of "obedience to orders" 254 
 
 Conflict of orders and duty 255 
 
 Conflict of duties 256 
 
 Jumping from the vehicle 257 
 
 Responsibility of taxicab, etc., drivers 258 
 
 Contributory negligence of chauffeur 2S9 
 
 Demanding or accepting a commission or bonus 260 
 
 Ordering supplies and repairs 261 
 
 Placing car in storage 262 
 
 License obtained by concealing disability 263 
 
 Unlicensed operators 264 
 
 Driver "accompanied by" licensed operator 265 
 
 Age limit for operator 266 
 
 CHAPTER XIV 
 
 Highways 
 
 i. control by legislature 
 
 Highways defined s 267 
 
 Paved street includes "planked" street ^ 268 
 
 Causeway not a bridge 260 
 
 Control of highways an exercise of the "police power" 270 
 
 Extent of the legislative supervision 271 
 
 Power of control means power to regulate use 272 
 
 Legislative power to exclude 27, 
 
 Legislative control of highways includes streets, parks and public places 
 
 in cities and towns 274 
 
 xiv 
 
TABI<B OF CONTENTS 
 
 II. RIGHT OF MOTOR VBHICLES TO USB HIGHWAY 
 
 SECTION 
 
 Right of public to use highway 275 
 
 Purpose of the use 276 
 
 Right to use highways — A leading case 277 
 
 The right of motor vehicles to use the highways 278 
 
 Right to stand on highway 279 
 
 No superior right 280 
 
 Mutual rights of automobiles and bicycles 281 
 
 Prior use of highway no effect on rights of motor vehicles . . ^ 282 
 
 The effect of violation of law 283 
 
 Duty of owner in case of breakdown 284 
 
 in. LIABILITY OF MUNICIPALITIES 
 
 Duty of municipalities rests on statute 28s 
 
 Extent of duty 286 
 
 Duty respecting automobiles 287 
 
 What is a defect 288 
 
 Stump outside travelled way 289 
 
 Abandoned automobile 290 
 
 Rut 291 
 
 Large stones in road 292 
 
 Rope across street 293 
 
 Notice of defect necessary 294 
 
 Obstruction of highways incident to repairs, building operations, and traffic, 295 
 
 Railings and Barriers 296 
 
 Duty to light streets 297 
 
 Question of sufficiency of highway is for jury 298 
 
 Statutory liability for death and injuries 299 
 
 Proximate cause 300 
 
 rv. DUTY OF TRAVELERS 
 
 Rights and duties of travelers 301 
 
 Duty to follow the traveled path 302 
 
 Degree of care required of traveler 303 
 
 Rights of passengers 304 
 
 Negligence of driver 305 
 
 Driver failing to notice defect 306 
 
 CHAPTER XV 
 
 Nuisance 
 
 The common law ._ 30- 
 
 Classification of nuisance ,Qg 
 
 XV 
 
 ii 
 
TABI<^ Oi CONTENTS 
 
 secTioN 
 
 Remedies 309 
 
 Effect of statute 3io 
 
 Motor vehicle not a nuisance 3ii 
 
 Effect of violation of law 312 
 
 CHAPTER XVI 
 
 Dangerous Agbncibs 
 
 Changing point of view 313 
 
 At common law 314 
 
 Test is capacity to do harm 315 
 
 Duty dependent on knowledge of danger 316 
 
 Question one of fact 317 
 
 Danger as reason for legislation 318 
 
 Danger from gasoline 319 
 
 Motor vehicle cases emphasizing the danger of the automobile 320 
 
 Motor vehicle cases refusing to consider the automobile dangerous per se 321 
 
 The present doctrine 322 
 
 Reference to automobile as dangerous 323 
 
 CHAPTER XVn 
 
 Gasoline 
 
 Gasoline, peculiarities of 324 
 
 Degree of care required 325 
 
 Negligence in regard to gasoline 326 
 
 Gasoline as a nuisance 327 
 
 Gasoline not a nuisance per se 328 
 
 State statutes, local regulations, etc 329 
 
 Federal statutes 330 
 
 CHAPTER XVni 
 
 The Law o? the Road 
 
 i. in general 
 
 Origin 
 
 Nature and construction 
 
 Criminal and civil liability for breach . . , 
 
 General rights and duties 
 
 Equal rights of various classes of travelers 
 What is part of road , 
 
 331 
 
 332 
 
 333 
 
 -,- 334 
 
 ' 335 
 
 336 
 
 xvi 
 
TABI,B OF CONTENTS 
 
 secTioN 
 
 Private roads 337 
 
 Streets distinguished from highways 338 
 
 General rules as to the exercise of care 339 
 
 Duty to keep lookout ahead 34o 
 
 Speed • 341 
 
 Driving along the road when not meeting or not passing 342 
 
 Duty of drivers of privileged vehicles 343 
 
 Party driving a light vehicle is bound to give way to a heavy loaded one . . 344 
 
 In city streets 345 
 
 Street railway tracks 34^ 
 
 One way streets 347 
 
 Slow vehicles to keep near curb 34^ 
 
 A driver is not bound under all circumstances to look behind when cross- 
 ing from one side to the other 349 
 
 Traveling in procession 35° 
 
 Motorcyclist bound by rules of road 3Si 
 
 II. MEfiflNG ON ROAD 
 
 Duty to turn out 352 
 
 Duty when driving close to curb 353 
 
 Driving on wrong side of road as negligence 354 
 
 Greater care needed when driving on wrong side 355 
 
 Right to assume that other vehicles will keep to right 356 
 
 Driving on wrong side of road to avoid defects , . • 357 
 
 Driving on wrong side to avoid vehicles 358 
 
 Failure to turn back after passing obstruction 359 
 
 Liability for injuring one on wrong side of road 360 
 
 Driving on left — see-saw movements 361 
 
 III. OVERTAKING AND PASSING 
 
 In general 362 
 
 Rule does not apply to pedestrians 363 
 
 Rule as applied to street cars 364 
 
 Right to pass 365 
 
 Duty of car passing to signal 366 
 
 Signal by leading car 367 
 
 When vehicle passing does not turn aside 368 
 
 Negligence in turning to left in passing 369 
 
 Looking to one side while passing 370 
 
 Cutting in 371 
 
 Passing on right as negligence 372 
 
 No presumption of negligence from collision in passing 373 
 
 Duty of leading car to turn to right 374 
 
 Leading vehicle turning to left or stopping 375 
 
 When leading vehicle does not turn aside 376 
 
 xni 
 
TABLE OF CONTENTS 
 
 SeCTION 
 
 Leading vehicle wobbling • ■^'^7 
 
 Driver of leading vehicle need not keep lookout behind 37° 
 
 IV. MBETING AT CORNERS 
 
 General rules 379 
 
 Duties reciprocal 3oO 
 
 Ordinary care sufficient 3°i 
 
 One reaching crossing first has right of way 382 
 
 Crossings 383 
 
 "Intersecting" streets includes street ending at corner 384 
 
 Speed at crossing 38s 
 
 Speed where view obstructed 386 
 
 Looking straight ahead 387 
 
 Turning suddenly from center of street 388 
 
 Where driver's companion looks behind before turning 389 
 
 Signal before turning 39o 
 
 Signal when intersecting street closed 391 
 
 Violation of traffic laws - 392 
 
 Vehicle on left side of street 393 
 
 Duty to hug curb in turning to right 394 
 
 "Curb" applied to fence in street 395 
 
 Turning up one-way street 396 
 
 Cutting corner in turning to left 397 
 
 Right to assume that other car is traveling in proper course 398 
 
 Right to assume other car is moving at lawful speed 399 
 
 Duty to stop 400 
 
 When one may speed up to avoid accident 401 
 
 Running on bridge 402 
 
 Duty on backing across corner 403 
 
 V. VEHICLES STANDING IN STREET 
 
 Standing vehicle .q. 
 
 Standing carriage and cabs ^og 
 
 Leaving vehicle unattended >q6 
 
 Leaving incompetent person in charge 407 
 
 VI. TRAVELING AT NIGHT OR WHEN VISION OBSTRUCTED 
 
 Care while traveling at night og 
 
 Purpose of lights— Driver responsible ' _ " | ^ 
 
 Time of lighting lights 
 
 Lights on standing automobile 
 
 Dashboard is "front" of automobile ... 
 
 412 
 
 xviii 
 
TABLi; OF CONTENTS 
 
 SfiCTION 
 
 Driving without lights 4I3 
 
 Insufficient lights . . . i 414 
 
 Only one light 4IS 
 
 Hitting unlighted vehicle 416 
 
 Unlighted bicycle 417 
 
 Lights on curve 418 
 
 Blinded by approaching headlight 4i9 
 
 Traveling in a mist or fog 420 
 
 Driver blinded by sun 421 
 
 Windshield blurred by rain 422 
 
 CHAPTER XIX 
 
 Speed Limitations 
 
 In General 423 
 
 Speed at common law and under the statute 424 
 
 Motive or intent 424a 
 
 Safety of the public the test 425 
 
 Must prove that on public road 426 
 
 Need not prove individuals endangered 427 
 
 Must be reasonable speed 428 
 
 Speed mania 429 
 
 Speed "reasonable and proper" too vague 430 
 
 Other vague limitations 431 
 
 Purpose of specific speed limitations 432 
 
 Distance covered at prohibited speed 433 
 
 Average speed limit 434 
 
 Specific speed limitations subordinate to rule of reasonable rate 435 
 
 Speed may be unreasonable though within maximum limit 436 
 
 Defence of not exceeding speed limitations 437 
 
 Meaning of the expression "business part" of a city or town 438 
 
 Operation where view is obstructed 439 
 
 Operation at intersecting ways 440 
 
 Speed on passing 441 
 
 Concurring penalties 442 
 
 Liability of owners to penalty for overspeeding 443 
 
 Liability of passenger 444 
 
 Remedies 445 
 
 All are principals in misdemeanors 446 
 
 CHAPTER XX 
 
 Reckless Operation Under the Statute 
 I. in generai, 
 
 Scope of chapter 447 
 
 The statute 448 
 
 Statute inapplicable to one jumping on the car 449 
 
 xix 
 
TABLE OF CONTENTS 
 
 II. OPERATING "recklessly OR SO THAT THE LIVES OR SAFETY OF THE PUBUC MIGHT 
 
 BE endangered'* 
 
 SECTION 
 
 There are certain general propositions 4S0 
 
 "Dangerous" defined 4Si 
 
 "Reckless" defined 452 
 
 Recklessness distinguished from negligence ■. 453 
 
 In its wider scope 454 
 
 Where driving according to law 455 
 
 Care after seeing danger insufficient 4S6 
 
 Public safety 457 
 
 Joint liability 458 
 
 Questions for jury 459. 
 
 III. OPERATING "while under THE INFLUENCE OF INTOXICATING LIQUOr" 
 
 Scope of treatment 4^0 
 
 A. What Is an Intoxicating Liquor? 
 
 The Massachusetts statute 461 
 
 The words "spirituous" and "intoxicating" 462 
 
 Mixed liquors 463 
 
 Cider 464 
 
 Beer 46s 
 
 B. What Constitutes "Being Under the InAuence" of Intoxicating Liquor? 
 
 Definitions 466 
 
 "Intoxicate'' defined 467 
 
 On the meaning of "influence" 468 
 
 As to what constitutes manifestations 469 
 
 Medical authorities 470 
 
 Intent of law 471 
 
 Intoxication not an excuse 472 
 
 Evidence as to intoxication 473 
 
 Intoxication in negligence cases 474 
 
 lUnder influence of drugs 475 
 
 CHAPTER XXI 
 
 Crimes and Misdemeanors 
 
 In general 476 
 
 Definition and classification of crimes 477 
 
 Theft of automobile ._g 
 
 XX 
 
TABI,B OF CONTSNTS 
 
 SfiCTION 
 
 When theft of automobile is burglary 479 
 
 Special laws governing theft of automobile 480 
 
 Assault on toll-keeper 481 
 
 Warning against police traps 481a 
 
 Making duplicate number plates 481b 
 
 CHAPTER XXII 
 
 CriMINAI, PlSAMNG AND FeACTICS 
 
 Indictment or information 482 
 
 "Jurisdiction of the court" 483 
 
 Accused to be informed of the charge 484 
 
 Pleading "nolo contendere" 485 
 
 Conviction , 486 
 
 Offences that may be punished twice 487 
 
 Fines, penalties and forfeitures, in misdemeanors 488 
 
 A "fine" described 489 
 
 Penalties and forfeitures 490 
 
 Forfeitures by way of damages 491 
 
 Appeal '.. 492 
 
 Summary trial 493 
 
 CHAPTER XXIII 
 
 Enforcement of the Motor Vehicle Law 
 
 Scope of chapter 494 
 
 The Massachusetts Act 493 
 
 General laws 496 
 
 General features concerning inspectors and examiners 497 
 
 Officer must be distinguishable 498 
 
 Officer to state ground of arrest or exhibit warrant 499 
 
 When officer authorized to arrest "without warrant" 500 
 
 Powers of constables, watchmen and police officers, generally 501 
 
 Concerning constables 502 
 
 Concerning watchmen 503 
 
 Concerning police officers 504 
 
 Concerning "peace officers" generally 505 
 
 CHAPTER XXIV 
 
 Aksest 
 
 In general 506 
 
 Resisting an officer 507 
 
TABLB Olf CONTENTS 
 
 SBCTION 
 
 Summons in lieu of arrest ; • • 5** 
 
 Powers of inspectors and examiners to arrest— How limited S09 
 
 Custody of prisoner 51° 
 
 Recapture SH 
 
 Property taken from prisoner Si2 
 
 Bail 513 
 
 Fees of constables and police officers — Extortion Si4 
 
 Immunity of foreign diplomatic corps S^S 
 
 Arrest without warrant Si6 
 
 In cases of misdemeanor 5^7 
 
 In cases of misdemeanor and statutory offenses 5i8 
 
 Responsibility of officer S^P 
 
 In cases of felony 52° 
 
 In civil actions 52i 
 
 CHAPTER XXV 
 
 Garages and GaraGiB Keepers 
 
 i. in generai, 
 
 Definitions and scope 522 
 
 The business is lawful 523 
 
 Rule of respondeat superior as to garage keeper 524 
 
 Duty to one entering garage on business 525 
 
 Right of lessee to remove his garage 526 
 
 Evidence of ownership 527 
 
 II. THE storage and care of motor vehicles 
 
 Relation of garage keeper to his customer 528 
 
 Commencement and termination of liability 529 
 
 Termination of bailment 530 
 
 Title_ of garage keeper 531 
 
 Rights of action of garage keeper 532 
 
 Duty of garage keepers 533 
 
 Garage keeper not an insurer 534 
 
 Failure to redeliver to customer 535 
 
 Garage keepers' liability for damage to car taken out unauthorizedly ... 536 
 
 Liability for theft of articles left with him 537 
 
 Unauthorized use of vehicle by garage keeper 538 
 
 Where servants of garage keeper take car without authority : . . . 539 
 
 Authorized use of property — Deviations caq 
 
 Servant acting beyond his authority at the request of the owner 541 
 
 Permitting use of car by incompetent persons ■ ,542 
 
 xxii 
 
TABIvE 01? CONTENTS 
 
 SECTION 
 
 Safe building 543 
 
 Burden of proof of garage keeper's negligence 544 
 
 Prima facie case of negligence by a garage keeper 545 
 
 Criminal liability 54^ 
 
 Functions of the court and of the jury 547 
 
 III. RENTING 
 
 Hiring of vehicles ■ • . . . 548 
 
 Contract made on Sunday 549 
 
 Degree of diligence demanded 55° 
 
 Garage keepers not common carriers , S5i 
 
 Duty to provide a safe vehicle 55^ 
 
 Evidence of unsafe vehicle 553 
 
 Duty to get customer when car breaks down 554 
 
 Obligation to guests of hirer 555 
 
 Effect of statutes relating to unauthorized use 556 
 
 Liability of lessee for care of hired vehicle 557 
 
 Deviation from route by hirer 558 
 
 Renting car to incompetent person 559 
 
 Rule of respondeat superior 560 
 
 Duty to provide a competent driver 561 
 
 IV. THE REPAIR OF MOTOR VEHICLES 
 
 Practice of garages 562 
 
 The contractual relation of the parties 563 
 
 Contract vitiated by agreement to give secret commissions to chauffeur . . . 564 
 
 Work done without authority 565 
 
 Amount of compensation 566 
 
 Evidence of overcharging other customers 567 
 
 Claim for repairs as defense to replevin 568 
 
 Defense that repairs improperly made 569 
 
 Responsibility for competency and diligence 570 
 
 Unreasonable detention 571 
 
 Delegation of duty 572 
 
 Duty of the repairer ^^^ 
 
 Skilled labor ^74 
 
 Extraordinary skill 575 
 
 Burden of proof, etc 576 
 
 v. LIENS FOR STORAGE AND REPAIRS 
 
 Common law right to lien 577 
 
 Lien by agreement 578 
 
 xxiii 
 
TABIvE OF CONTeNTS 
 
 -,:.,«; |- T! ., j' I ■ SECTION 
 
 Circumstances under which a lien will attach 579 
 
 Liveryman has no lien at common law 58° 
 
 No lien where owner uses car at will Sol 
 
 Lien by statute • S^^ 
 
 Consent to repairs or storage as element of lien So3 
 
 Loss of lien by delivery of car So4 
 
 Retaking by force after loss of lien 5o,S 
 
 Priorities as against mortgages S°° 
 
 Garage keepers as warehousemen S87 
 
 Warehouseman's lien for storage charges 5^8 
 
 Interpleader to determine title S^P 
 
 VI. GARACeS AS NUISANCES 
 
 Livery stables as nuisances 59° 
 
 Garages as nuisances S9i 
 
 Police power over 592 
 
 Proceedings to restrain a nuisance 593 
 
 Restrictions on use of land as affecting garages 594 
 
 CHAPTER XXVI 
 
 Manufacturers 
 
 Scope of chapter 595 
 
 Duty of the manufacturer 596 
 
 Dangerous agencies ■ • 597 
 
 Duty to exercise reasonable care 598 
 
 Responsibility on the part of purchasers to the public 599 
 
 Customer's implied engagement with the public 6oo 
 
 The relation between manufacturer and customer 6oi 
 
 Remedies of the customer 602 
 
 Remedies of the manufacturer 603 
 
 No privity between manufacturer and third parties 604 
 
 Rule when defect is obvious or disclosed 605 
 
 Liability of manufacturer to third parties for selling defective appliances . . 606 
 
 Liability to passengers 607 
 
 Assembled car with defective parts 608 
 
 Criminal liability 609 
 
 Statutes , 6io 
 
 CHAPTER XXVII 
 
 Sales 
 
 I. IN generai, 
 
 Scope. of chapter gjj 
 
 Definition of "sale" 6j2 
 
 xxiv 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Elements of a sale "'3 
 
 Concurrence of assent "^4 
 
 Executed and executory sales °^5 
 
 Vendor must have title • • °i6 
 
 Who is the vendor when sale made through agent 617 
 
 Effect of partial payment on title 618 
 
 Title in case of conditional bill of sale » 619 
 
 Illegal use contemplated 620 
 
 Unfair competition 621 
 
 Statute of frauds 622 
 
 "Demonstration," meaning of, and how proved 623 
 
 Pleading 624 
 
 Parol evidence in connection with a written contract • • 625 
 
 Functions of jury as to construction of contract and passing of title 626 
 
 Intervention of equity 627 
 
 Specific performance 628 
 
 Readiness to perform — a condition precedent to enforcement 629 
 
 Consideration 630 
 
 Failure of consideration 631 
 
 Failure of consideration resulting from misrepresentation 632 
 
 Delivery 633 
 
 Delivery in executory contract of sale of specific chattels 634 
 
 When article is to be tnanufactured 635 
 
 Executory sale of articles to be specified at a future time 636 
 
 "Sale on trial" or "sale on approval" and "sale or return" 637 
 
 Misuse or injury to property while on trial 638 
 
 Acceptance 639 
 
 Right of inspection before acceptance 640 
 
 Caveat emptor 641 
 
 Fraud sets aside rule of caveat emptor 642 
 
 Mistake 643 
 
 Rescinding contract on the ground of mistake 644 
 
 Fraud and deceit 645 
 
 Defects Patent or Latent 646 
 
 Fraud not resulting in pecuniary loss 647 
 
 Falsely pretending to be a prospective customer 648 
 
 Sale through middleman 649 
 
 Acquiescence in fraud 650 
 
 Waiver of defects by the buyer 651 
 
 Knowledge of Defects based on failure of other cars 652 
 
 n. THE RIGHTS AND REMEDIES OE VENDOR 
 
 A. Where Possession Has Not Passed 
 
 Breach by the buyer 653 
 
 Time of breach 654 
 
 xxv 
 
TABI,E OP ('0^fTENTS 
 
 SECTION 
 
 Defaulting buyer forfeits advances 655 
 
 Remedies 656 
 
 Remedies against the goods — lien 057 
 
 Right of stoppage in transitu 658 
 
 B. Where Possession Has Passed 
 
 Personal action , 659 
 
 Conditional sale — Buyer in default 660 
 
 III. RIGHTS AND REMEDIES OF THE BUYER 
 
 In general 661 
 
 A. Before Obtaining Possession of the Goods Where the Contract is Executory 
 
 Damages 662 
 
 Market price 663 
 
 Duty of buyer where seller fails to deliver 664 
 
 General American rule as to damages 665 
 
 Nominal damages 666 
 
 Conversion 667 
 
 Demand and tender as condition precedent 668 
 
 C. Where the Property Has Passed to the Buyer 
 
 Right of action or possession 66g 
 
 Evidence to warrant rescission 670 
 
 Buyer's election to rescind or claim damages for fraud 671 
 
 Fraud as recoupment 672 
 
 Rejection and rescission — Misstatements of age of car 673 
 
 Minor's right to rescind 674 
 
 Car worthless for special purpose 675 
 
 Right to rescind purchase of accessories 676 
 
 Evidence of return of car 67; 
 
 Recovery of purchase price 678 
 
 Returning in damaged condition 679 
 
 Fraud not essential „.._.. 680 
 
 Commissions not deducted from damages 681 
 
 Laches by buyer 6g2 
 
 Waiver of right to rescind by authorizing sale 683 
 
 Duty to inspect promptly ggj^ 
 
 Time allowed for inspection and testing 685 
 
 Subsequently discovered imperfections 686 
 
 Rescission waived by user 687 
 
 xxvi 
 
TABLB OF CONTENTS 
 
 SECTION 
 
 User while trying to put car in condition 688 
 
 Allowing seller to work on car is not a waiver of right to rescind 689 
 
 Ratification — ^what amounts to a ratification 690 
 
 No rescission as against innocent purchasers for value 691 
 
 CHAPTER XXVIII 
 
 ' Seujng Agents and Agenciss 
 
 Scope of chapter 692 
 
 Rule of respondeat superior 693 
 
 Contract void for lack of mutuality 694 
 
 Contract construed a bailment • • 695 
 
 Not a conditional sale 696 
 
 Contract for automobiles includes taxicabs 697 
 
 Modification of contract 698 
 
 Waiver of contract 699 
 
 In what State business done 700 
 
 "Agent" defined 701 
 
 Distinction between an agent and a servant 702 
 
 "Broker" defined 703 
 
 "Salesman" defined 704 
 
 "Agenc}^" described 705 
 
 Personality of the agent is a factor 706 
 
 Automobik agency defined 707 
 
 The relation between the parties 708 
 
 Agreement to give all time to agency 709 
 
 "General agents" and "special agents" 710 
 
 Right to deposit 711 
 
 Appointment 712 
 
 Private instructions 713 
 
 Scope of agent's authority 714 
 
 Ratification or confirmation 715 
 
 Agency, how proven 716 
 
 Duty of agent 717 
 
 Degree of care 718 
 
 Negligence of agents 7ig 
 
 Usage 720 
 
 Responsibility of principal for misconduct of his agent 721 
 
 Collusive contract 722 
 
 Responsibility of agent 723 
 
 Liability of agent in case of torts 724 
 
 Power of agents to warrant 725 
 
 Circulars of manufacturer as authority to agent to warrant 726 
 
 Admissions of general agents 727 
 
 xxvii 
 
TABI<K OP CONTENTS 
 
 SECTION 
 
 Agent's statements 728 
 
 "Dealer's talk" or seller's talk 729 
 
 Agent's power to delegate authority 730 
 
 Payment to an agent 73i 
 
 Notice to an agent 732 
 
 Compensation of an agent 733 
 
 Right to commissions as between general and special agent where cars not 
 
 delivered 734 
 
 When commission earned 73S 
 
 Exclusive territory 736 
 
 Validity of agreement for exclusive territory 737 
 
 Revocation of authority 738 
 
 Partnership of agent 739 
 
 CHAPTER XXIX 
 Warranties 
 
 Scope of chapter 740 
 
 Generally 741 
 
 Representations, warranty and conditions 742 
 
 Condition precedent 743 
 
 Condition subsequent ' 744 
 
 Conditions precedent and subsequent 745 
 
 Waiver of condition precedent , 746 
 
 Modern tendency to treat condition as warranty 747 
 
 Kinds of warranty 748 
 
 Construction of one year warranty 749 
 
 "Usual Guaranty" 750 
 
 Statements in catalog as warranty 751 
 
 Damages for breach of two warranties 752 
 
 Warranty limited to mechanical parts 753 
 
 Failure of car to work 754 
 
 Written warranty governs parol 755 
 
 Implied warranty 7^5 
 
 Sales by "sample" «e7 
 
 Duty of the purchaser to inspect— Waiver of defects 758 
 
 Article ordered for a special purpose 750 
 
 Contract to manufacture to the "satisfaction" of purchaser 760 
 
 Failure to deliver on time ' _ -gj 
 
 Measure of damages in such cases -52 
 
 Representations »g 
 
 Price in connection with representations 764 
 
 Used cars , 
 
 Functions of the court and of the jury as to representations ............ 766 
 
 Representations must have been acted upon 767 
 
 xxviii 
 
TAB1,E Ot CONTENTS 
 
 SECTION 
 
 Opinions as representations 768 
 
 Rule of caveat emptor in sales by manufacturers 769 
 
 Fraud and deceit 770 
 
 Remedies of buyer on breach of warranty 771 
 
 Where customer had right to exchange 772 
 
 Rescission of contract 773 
 
 Remedying defects • • 774 
 
 Damages from defective oil 775 
 
 Measure of damages for breach of warranty 776 
 
 Measure of damages for breach as to price 777 
 
 CHAPTER XXX 
 
 Insurance 
 
 In general 778 
 
 Character of policy 779 
 
 Whether fire originates within the vehicle 780 
 
 Misrepresentation i , 781 
 
 Knowledge of agent binding on company 782 
 
 .Where company repairs damage 783 
 
 Condition that car be kept in certain building 784 
 
 Condition against renting 785 
 
 Accident while cranking 786 
 
 Skidding not a derailment 787 
 
 Collision 788 
 
 Theft , '...'..'..'.]'.'.'.'..'. 789 
 
 Validity of liability insurance 790 
 
 Power to insure against liability for negligence 791 
 
 Liability policy does not cover criminal prosecution 792 
 
 Character of relationship in liability policy 793 
 
 Notice to company where claim delayed 794 
 
 Recovery against officer of insured company 795 
 
 Disclosure of fact that defendant is insured is error 796 
 
 Effect of insurance on damages 797 
 
 When it may appear that defendant is insured 798 
 
 CHAPTER XXXI 
 
 Principai, and Agbnt 
 
 I. THB DOCTRINB OF RfiSPONDSAT SUPBRIORi IN GBNfiRAL 
 
 "Respondeat superior" 700 
 
 Unauthorized acts— English view 800 
 
 American view ggj 
 
 xxix 
 
TABLE 0:P CONTENTS 
 
 SBCTION 
 
 "Employer," or "master" defined ^ 
 
 "Employe" or "servant" defined •• ^3 
 
 The relation °°4 
 
 Relation of employer and chauffeur oOS 
 
 Tests of doctrine ^^ 
 
 Unnecessary acts of employe 807 
 
 When punitive damages recoverable against employers 808 
 
 Responsibility for an operator who is not hired 809 
 
 Implied authority of servant 810 
 
 Effect of statutes requiring registration, etc 811 
 
 Ratification of servant's acts 812 
 
 Duty of master to select competent servant 813 
 
 General reputation for competency of servants 814 
 
 General reputation for intemperance 815 
 
 Liability of operator 816 
 
 ir. WHEN AGENCY EXISTS 
 
 Guest as agent 817 
 
 Guest of driver cannot recover against owner 818 
 
 Guest of driver not liable 819 
 
 Defendant allowing guest to drive 820 
 
 Driving under direction of guest of owner 821 
 
 Borrowers — Permitting use of car and chauffeur 822 
 
 Municipal employe 823 
 
 Servant acting gratuitously 824 
 
 Taxicab drivers 825 
 
 Authority of officer of corporation to purchase, hire or operate automobile 826 
 
 III. EVIDENCE OE AGENCY 
 
 Relation, how proved 827 
 
 Presumption arising from master's presence 828 
 
 Ownership of car and employment of driver 829 
 
 Ownership and fact that car on owner's business enough 830 
 
 Evidence of registration 831 
 
 Possession and registration 832 
 
 Name inscribed on car or on chauffeur's uniform 833 
 
 Evidence that driver the servant of another 834 
 
 Owner's failure to deny agency g,e ■ 
 
 Functions of the jury g^g 
 
 IV. WHO IS PRINCIPAI,? 
 
 Statutes imposing liability on owner g-» 
 
 Application to master of statutes imposing duty of care g^g 
 
 XXX 
 
TABLE Oi CONTENTS 
 
 SECTION 
 
 Co-partnership and associations 839 
 
 Corporations • • 840 
 
 Infants as employers 841 
 
 Infants in negligence cases 842 
 
 Joint owners 843 
 
 Lunatic 844 
 
 Mortgagee in possession of business 84s 
 
 V. WHO IS AGENT? 
 
 Business agents and representatives 846 
 
 Volunteer starting car 847 
 
 Agent permitting another to drive 848 
 
 Car in hands of mechanic 849 
 
 One hired to remove car from ditch 850 
 
 When driver an independent contractor 851 
 
 VI. IN THE EMPtOYMENT OF ONE PERSON AND DOING WORK FOR ANOTHER 
 
 In general 852 
 
 Employe of corporation driving for one of its ofKcers 853 
 
 Contract with garage to care for car and furnish driver when called upon 854 
 
 Where chauffeur of another drives plaintiff home gratuitously 855 
 
 Letting customer crank car ' 856 
 
 Testing car for customer 857 
 
 Where salesman lets another drive the owner's car 858 
 
 Chauffeur acting as instructor 8S9 
 
 Driving car home for purchaser 860 
 
 Car delivered but not paid for 861 
 
 Liability of manufacturer for negligence in delivering to customer 862 
 
 Demonstrator g63 
 
 Demonstrator allowing customer to run car 864 
 
 Garage mechanic testing car 865 
 
 Hiring a vehicle and driver 866 
 
 Hirer selecting chauffeur paid by owner 867 
 
 Political committee hiring car and paying chauffeur 868 
 
 When bailee is liable to third parties ggg 
 
 Defective vehicle 870 
 
 Hirer allowing a friend to drive 871 
 
 VII. WITHIN THE SCOPE OP HIS EMPLOYMENT 
 
 Liability dependent on whether acts were within course of employment.. 872 
 
 Damage to automobile driven by chauffeur on his own business 873 
 
 Driving to get supplies 874 
 
 Authority of agent to borrow car 875 
 
 Agent delivering repaired goods 876 
 
 xxxi 
 
 iii 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Testing car on road ^n 
 
 When chaui5feur driving on own business with master's permission 878 
 
 Servant doing work for fellow-servant 879 
 
 Operator no duty to drive 880 
 
 Presumptions 881 
 
 Vlir. DfiVIATlONS 
 
 Going out of way— "detours" 882 
 
 Large deviation 883 
 
 Slight deviation 884 
 
 Unexcuted intention to deviate 885 
 
 Going to and from meals 886 
 
 Going for laundry 887 
 
 Separate trip 888 
 
 Running in opposite direction 889 
 
 While returning to diity 8go 
 
 When driver "on a frolic of his own" 891 
 
 Chauffeur earning money for himself 892 
 
 Servant leaving vehicle — Omissions of duty 893 
 
 Injurious acts of an employe done for amusement 894 
 
 Disobedience 895 
 
 Unauthorized use of car for servant's business 896 
 
 Unauthorized use of car on master's business 897 
 
 Trip in response to appeal for aid by friends of owner 898 
 
 Statutes on this subject 899 
 
 Responsibility of principal for wilful and wanton negligence of employe . . . 900 
 
 IX. EFFECT OF FAMILY RfiI,ATIONSHIP 
 
 Relationship of parent and child, etc 901 
 
 Family car used for family purposes 902 
 
 Where son drives with father's permission 903 
 
 Son driving parent 904 
 
 Father's car taken by son without permission 905 
 
 Where son learning to drive go6 
 
 Father has burden to prove son had no authority 907 
 
 Son following father's custom in leaving car unlighted 908 
 
 Father's liability for negligence of adult son pog 
 
 Liability of parent for allowing incompetent child to run car 910 
 
 Child allowing another to drive on 
 
 Whether automobile belongs to son 012 
 
 Whether driver was servant of absent parent or of child 013 
 
 Members of family in control in owner's absence 014 
 
 Driver acting under orders from one of family niq 
 
 Previous operation by member of family njg 
 
 xxxii 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Wife as agent of husband 9i7 
 
 Wife liable for act of son 9i8 
 
 When husband and wife both liable for act of child 9^9 
 
 X. master's uabiuty to servant 
 
 In general 920 
 
 Driver a fellow-servant 921 
 
 Liability to servant for employing driver who drank 922 
 
 Workmen's compensation law 923 
 
 When servant called upon to act in emergencies 924 
 
 Duty of master to supply safe vehicle and appliances 92S 
 
 The risks assumed by the employe 926 
 
 Chauffeur as passenger while intoxicated owner driving 927 
 
 Mechanician on racing car 928 
 
 Burden of proof — Functions of jury, etc .- 929 
 
 Contributory negligence of chauffeur 930 
 
 Right to discharge servant — Services "satisfactory to the master" 931 
 
 XI. CRIMINAI, UABIUTY 
 
 In general 932 
 
 Master as accessory before the fact 933 
 
 Criminal responsibility for acts mala prohibita 934 
 
 Criminal responsibility of chauffeur 935 
 
 Assault and battery committed by servant in the exercise of a general dis- 
 cretionary authority 936 
 
 CHAPTER XXXII 
 
 LiENs 
 
 Scope of chapter 937 
 
 Recording of mortgage 938 
 
 Priorities 939 
 
 Conversion 940 
 
 Right of action for conversion not shut off by foreclosure of mortgage . . 941 
 
 Liens by statute in damage cases 04ia 
 
 CHAPTER XXXIII 
 
 Negligence Generally, and Its Classieication 
 
 Scope of chapter 942 
 
 Negligence defined 943 
 
 Not insurers 944 
 
 xxxiii 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Duty to keep car under control 9A5 
 
 Ingredients of negligence 94o 
 
 Negligence described ^^^ 
 
 The motorist's true point of view 94o 
 
 The basis for the consideration • • 949 
 
 "Perfect vigilance" 9S0 
 
 Degrees of negligence 9SI 
 
 The motorist and "ordinary" negligence 952 
 
 Aspects of negligence 9S3 
 
 Criminal negligence 9S4 
 
 Negligence per se 955 
 
 Regarding acts or omissions, mala in se 95° 
 
 Summary 957 
 
 Division of subject 95° 
 
 CHAPTER XXXIV 
 
 ACTIONABIE NEGWGENCE 
 I. IN GENERAI, 
 
 Scope 959 
 
 Actionable negligence distinguished 960 
 
 Civil as well as criminal liability 961 
 
 Massachusetts statute on this subject .' 962 
 
 Intent in negligence 9^3 
 
 The relation of duty to negligence 964 
 
 Damage must follow negligence 965 
 
 Standards for measuring negligence 966 
 
 The question of negligence is one of law as well as of fact 967 
 
 Functions of the court and of the jury 968 
 
 Duty of the court 969 
 
 Dismissing the complaint 970 
 
 Burden of proving negligence 971 
 
 Burden of proof in case of acts of servant 972 
 
 Distinction between burden of proof and preponderance of evidence 973 
 
 Burden of proof — "shifting" 974 
 
 II. ORDINARY CARE 
 
 In general 575 
 
 Degrees of care 976 
 
 Degree of care varies with character of vehicle 977 
 
 Dangerous conditions or situations 978 
 
 Care of prudent man 979 
 
 Care of beginner 980 
 
 xxxiv 
 
TABI<5 OF CONTENTS 
 
 SECTION 
 
 Ordinary care does not generally involve anticipating another's negligence 981 
 
 Reliance on care on the part of others 982 
 
 "Ordinary care" applies to the safety of property as well as to that of 
 
 persons 983 
 
 Evidence of "custom" on the question of negligence 984 
 
 Evidence of habits of the driver 985 
 
 Observance of care for others while exercising lawful right — Noise .... 986 
 
 Speed as negligence 987 
 
 What is high speed 988 
 
 Pure accident, act of God, vis major, inevitable accident 989 
 
 in. CONTRIBUTORY NEGLIGBNCE 
 
 Contributory negligence described 990 
 
 Constituents of contributory negligence 991 
 
 Degree of care required of plaintiff 992 
 
 Where plaintiff is ignorant of the danger 993 
 
 Rule of due care applies to plaintiff's property 994 
 
 Functions of the court and of the jury concerning contributory negligence 995 
 
 Right of defendant to clear instructions 996 
 
 Contributory negligence in the Federal courts and in the states generally .997 
 Contributory negligence to be effective must have been a proximate cause 
 
 of the injury 998 
 
 When injury would have happened notwithstanding plaintiff's negligence 999 
 
 Power to avoid results of defendant's negligence 1000 
 
 Concurring negligence of both plaintiff and defendant looi 
 
 "Slight" contributory negligence barring recovery 1002 
 
 Comparative negligence 1003 
 
 Culpable negligence by either party 1004 
 
 Gross negligence by either party 1003 
 
 Contributory negligence no bar in an action for reckless, or wilful or wan- 
 ton negligence by defendant 1006 
 
 Where one voluntarily incurs danger 1007 
 
 Danger incurred in the discharge of duty— Street laborers 1008 
 
 Intoxication of driver 1008a 
 
 Sitting on floor of car 1008b 
 
 Not negligent to fail to anticipate another's negligence under all circum- 
 stances 1009 
 
 If defendant has thrown plaintiff off his guard loio 
 
 Application of the foregoing principles ion 
 
 Situations of inconvenience rather than of immediate danger 1012 
 
 Plaintiff's negligence enhancing injury 1013 
 
 Burden of proof J014 
 
 Point of agreement in all jurisdictions 1015 
 
 "Shifting" of the burden of proof loiC 
 
 XXXV 
 
'VABtt OF CONTENTS 
 
 SBCTION 
 Burden of proving contributory negligence in states following the "general" 
 
 rule '°^7 
 
 "Massachusetts rule" concerning burden of proof in the matter of con- 
 tributory negligence ^°^° 
 
 IV. IMPUTED NEGUGENCB 
 
 Statement of the American rule ioi9 
 
 Negligence of driver not imputed to occupant of vehicle 1020 
 
 Negligence of driver not imputed to his guests 1021 
 
 Passenger for hire i°22 
 
 Husband and wife 1023 
 
 Where engaged in common enterprise 1024 
 
 Validity of statute imputing negligence of driver to certain occupants . . . 1025 
 
 In actions for death 1026 
 
 Negligence of another the direct cause of accident 1027 
 
 Negligence of driver imputed when the sole cause of accident 1028 
 
 Negligence imputed to one suing in representative capacity 1029 
 
 Doctrine of "identification"— Parents 1030 
 
 In cases of "gross" negligence I03i 
 
 Application of the principle of imputed negligence in the different jurisdic- 
 tions, as to children 1032 
 
 Massachusetts rule concerning imputed negligence in cases of children . . 1033 
 
 When negligence not imputed in the case of children — General rule 1034 
 
 Negligence of chauffeur of public auto not imputed 1035 
 
 V. CONCURKBNTf NeCWGElsrCE 
 
 Definition 1036 
 
 Where there is apparently more than one cause 1037 
 
 Concurrent negligence of two persons injuring a third — ^Joint responsibility 1038 
 
 Act or omission of a third party 1039 
 
 When an accident and negligence combine to bring about an injury 1040 
 
 Defendants engaged in common enterprise 1041 
 
 Servant injured by joint neghgence of master and a third person 1042 
 
 Liabilities of master and chauffeur 1043 
 
 Passenger injured in collision 1044 
 
 Pedestrain injured as result of collision 1045 
 
 Defendants racing injuring pedestrian 1046 
 
 Horse frightened by various motor vehicles 1047 
 
 Defect in highway and negligent driving 1048 
 
 Practice limiting effect of evidence 1049 
 
 Effect of release 1050 
 
 xxxvi 
 
TABI,E OP CONTENTS 
 VI. proximaTb cause 
 
 SECTION 
 
 Distinction between causes and conditions lOSi 
 
 Proximate cause and remote cause in general 1052 
 
 Cases in illustration of the general doctrine lO^S 
 
 The difficulty not with the rule, but with its application 1054 
 
 Sequence of consequences lOSS 
 
 Consequences must be such as naturally to have been apprehended 1056 
 
 Intervention of independent responsible cause 1057 
 
 Negligent act injurious to a third party through an innocent intermediary 1058 
 
 Proof not necessarily positive or direct 1059 
 
 Functions of the court and of the jury on this subject 1060 
 
 Burden of proof of proximate cause 1061 
 
 Disease resulting from negligence 1062 
 
 Negligence aggravating disease or injury • • 1063 
 
 Liability, for mental suffering, fright, or nervous shock 1064 
 
 Fright of animals — ^Act of driver 1065 
 
 Where operator turns to avoid another and injures plaintiff 1066 
 
 Sudden starting of car steered by another 1067 
 
 Unlawful act of either party does not ipso facto bar a recovery for negli- 
 gence 1068 
 
 Illegal speed as cause of accident 1069 
 
 Traveling on wrong side of road 1070 
 
 Failure to sound horn 1071 
 
 Failure to carry numbers 1072 
 
 Failure to carry lights 1073 
 
 Pole near highway 1074 
 
 VII. VIOIATION OF tAW AS AFFECTING NEGLIGENCE 
 
 Violation of statute and ordinance distinguished 1075 
 
 When plaintiff violates the statute 1076 
 
 Violating right of way 1077 
 
 Violation of law of road 1078 
 
 Unlawful speed evidence of negligence 1079 
 
 Degree of care while violating law 1080 
 
 Using best judgment through violating statute 1081 
 
 The violation must be a proximate cause 1082 
 
 Prima facie case in this connection 1083 
 
 Coasting illegally 1084 
 
 Burden of proof to show lawful operation 1085 
 
 Unregistered vehicle on the highway 1086 
 
 The Massachusetts rule as to unregistered vehicles 1087 
 
 xxxvii 
 
TABI,^ OF CONTENTS 
 VIII. BMBRGBNCIES 
 
 SECTION 
 
 In general l°^ 
 
 Where the peril is the result of the plaintiff's own fault 1089 
 
 Where the situation of peril is caused by conditions arising through no 
 
 fault of plaintiff 1090 
 
 Where the peril originates in the negligence of the defendant 1091 
 
 Error of judgment 1092 
 
 Taking wrong course I093 
 
 If different course would have prevented accident 1094 
 
 Where either course might be careful 109S 
 
 Rash apprehension of non-existent danger 1096 
 
 Runnning in front of auto 1097 
 
 Hesitating in front of auto 1098 
 
 See-saw movements 1099 
 
 Party disturbed mentally at time of accident hoc 
 
 Duty of driver in emergency iioi 
 
 Duty of defendant to anticipate fear, of plaintiff 1102 
 
 Duty to hit animal rather than person 1103 
 
 Rescuers — Attempt to save life 1104 
 
 Question for jury • • iios 
 
 Jury should consider that had no time to decide 1106 
 
 IX. THE HUMANITARIAN DOCTRINE-^'LAST CI,EAR OPPORTUNITY" 
 
 "Last clear opportunity" 1107 
 
 Rule not applicable where defendant should have discovered plaintifif's 
 
 danger and did not 1108 
 
 Application of humanitarian doctrine 1109 
 
 Effect of statute mo 
 
 Will not relieve one of two joint tortfeasors mi 
 
 Plaintiff coasting illegally 1112 
 
 When plaintiff's negligence the more remote cause 11 13 
 
 When there is opportunity to avoid result of plaintiff's negligence 11 14 
 
 CHAPTER XXXV 
 
 Frightening Hor^s 
 
 I. NEGLIGENCE BY operator OP AUTOMOBILE 
 
 Duty of operators in general mg 
 
 Equal rights on highway mg 
 
 Where plaintiff a mere licensee .'. 1117 
 
 Fright alone is not basis for liability mS 
 
 Duty to keep watch for horses mg 
 
 xxxviii 
 
TABIDS Of CONTENTS 
 
 Failing to stop when sees that horse is frightened 
 
 Proceeding when horse shows no signs of fright 
 
 Duty to drive past 
 
 Turning off road to avoid horses 
 
 Approaching horse without warning 
 
 Where no signal to stop or signs of fright 
 
 Noise and appearance 
 
 Duty to stop engine 
 
 Blowing horn negligently 
 
 "Hollering" to driver of team which does not turn out 
 
 Driving too near to horses 
 
 Driving close to animal 
 
 Driving on wrong side of road 
 
 Splashing horse 
 
 Escaping steam ■ ■ 
 
 Smoke 
 
 Care in assisting driver of horse 
 
 Broken down machine left on road 
 
 Speed as cause of fright 
 
 When unlawful speed did not frighten horses 
 
 Keeping within maximum statutory speed may be insufficient 
 
 Runaway as proximate result 
 
 Causing horses to run into obstruction 
 
 Where injury which did occur could not be anticipated 
 
 Horse frightened later after being brought under control 
 
 I/Oss of value of horse by rendering him shy 
 
 When horse is "uncontrollable" 
 
 SECTION 
 . . II20 
 121 
 122 
 123 
 124 
 
 I2S 
 126 
 127 
 128 
 129 
 130 
 131 
 132 
 
 134 
 
 135 
 136 
 137 
 138 
 139 
 140 
 141 
 142 
 
 143 
 144 
 
 I4S 
 146 
 
 II. NEGWGfiNCE BY DRIVER Of HORSE 
 
 In general 1 147 
 
 Driving horse by automobile 1148 
 
 Where horse afraid of autos .* 1149 
 
 Prior negligence in using unruly horse no bar llSCf 
 
 Character of horse 1151 
 
 Leading horse 1152 
 
 Where led horse swings across road 1x53 
 
 Driver of horse lacking strength and skill 1 154 
 
 Driving while asleep 1155 
 
 Riding sideways on horse 1 156 
 
 Horses left unattended , 1157 
 
 Horses turning suddenly ngg 
 
 Remaining in carriage when horse frightened 1 159 
 
 Horse running into auto ngo 
 
 When automobile backing ugi 
 
TABLE OF CONTENTS 
 
 CHAPTER XXXVI 
 
 SIGNALS 
 
 I. HORN OR OTHER SIGNAI, BY DRIVER OE AUTOMOBILE 
 
 SECTION 
 
 Duty to sound horn 1162 
 
 Failure to sound horn 1163 
 
 When failure to sound horn is not negligence 1164 
 
 Blowing horn does not give right of way 1165 
 
 Passing standing team 1166 
 
 Statute requiring signal on approaching horses is for protection of persons 
 
 driving them 1167 
 
 When another does not hear horn 1168 
 
 Signal that about to start automobile 1169 
 
 Evidence as to sounding horn 1170 
 
 II. SIGNAI, BY DRIVER OP HORSE 
 
 What is sufficient signal 1171 
 
 What amounts to driving 1172 
 
 Signal by one not the driver '. 1173 
 
 Duty irrespective of signal 1174 
 
 Failure to heed signal to stop 1175 
 
 Stopping on signal insufKcient 1176 
 
 Negligent failure to signal 1177 
 
 III. SIGNAL BY TRAFFIC OFFICER 
 
 Proceeding on signal by traffic officer 1178 
 
 CHAPTER XXXVII 
 
 Animals on highway 
 
 Dog as cause of injury jl~n 
 
 Injury to dog 1180 
 
 Injury to cattle on road j igj 
 
 CHAPTER XXXVIII 
 
 Bicyclist 
 
 See-saw movements -.0. 
 
 Slipping and falling Ii8» 
 
 Turning across Toad • !!!!!;!.!! 1184 
 
 xl 
 
TABLE OP CONTENTS 
 
 SECTION 
 
 Brakes not working ii°5 
 
 Automobile overtaking bicycle 1186 
 
 Duty of automobilist to slow down iio7 
 
 Automobile on wrong side of street i'88 
 
 Bicyclist turning corner at high speed 1189 
 
 Failure to continue looking at automobile 1189a 
 
 CHAPTER XXXIX 
 
 Backing and Towing 
 
 Backing in general HQO 
 
 Meeting car backing on wrong side of street 1191 
 
 Backing out of garage running over street laborer 1 192 
 
 Towing "93 
 
 CHAPTER XL 
 
 Passengers 
 
 I. IMPUTED negwgence 
 
 Scope of chapter 1194 
 
 Doctrine of identification 119S 
 
 Driver's negligence no longer imputable to passenger iig6 
 
 The modern doctrine generally 1197 
 
 The rule does not apply in cases of master and servant, etc 1 198 
 
 II. care of passenger 
 
 Due care to be exercised by passenger 1199 
 
 Illustrations of what amounts to due care generally, on the part of the 
 
 passengers 1200 
 
 Motor vehicle cases 1201 
 
 Duty of motor vehicle passenger at railroad crossings 1202 
 
 What amounts to due care at railroad crossings on the part of passenger. . 1203 
 
 Motor vehicle cases 1204 
 
 Knowledge that driver careless 1205 
 
 Passenger remaining in car when driver intoxicated 1206 
 
 Passenger on rear seat 1207 
 
 Failure to jump 1208 
 
 Passenger remaining in unlighted car 1209 
 
 Duties of passengers in general 1210 
 
 xli 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Care on highways by passengers 1211 
 
 Passenger suggesting caution 1212 
 
 Passenger failing to protest at excessive speed 1213 
 
 Passenger urging high speed 1214 
 
 III. EIGHTS AND LIABILITIgS OF PASSENGERS 
 
 Unregistered vehicle — rights of passengers 1215 
 
 Liability of passenger to third persons for driver's negligence 1216 
 
 Remedies of the passenger 1217 
 
 Collusive suit 1218 
 
 Duty of operator to guest 1219 
 
 No presumption of control against passenger as such 1220 
 
 Suggestion by passenger of route, etc 1221 
 
 Burden of proof 1222 
 
 Functions of the court and of the jury 1223 
 
 Reckless driving as applied to passengers 1224 
 
 Fright and terror 1225 
 
 Criminal liability of passenger 1226 
 
 Misdemeanors 1227 
 
 CHAPTER XU 
 
 Common Carriers 
 
 i. in general 
 
 What is a common carrier 1228 
 
 Taxicabs 1229 
 
 Taxicabs as "carriages" or hacks 1230 
 
 Motor vehicles as carriers of passengers and merchandise — degree of care. . 1231 
 
 Distinction between carriers of goods and carriers of passengers 1232 
 
 The vehicle, its appliances and repairs — carrier not an insurer 1233 
 
 Presumption of negligence 1234 
 
 Gratuitous passengers , 1235 
 
 Sightseeing automobile 1236 
 
 Ultra vires acts of carrier corporations 1237 
 
 Liability of carrier carrying automobile 1238 
 
 Concerning passengers in public hacks 1239 
 
 "Hack line" defined J240 
 
 Rules and regulations 1241 
 
 Licensing acts 1242 
 
 Competency of driver— Condition of the hack, etc 1243 
 
 xlii 
 
TABLE OP CONTENTS 
 
 II. JiTNfiYS 
 
 SRCTION 
 
 Definition "44 
 
 Included under vehicle 1245 
 
 As common carriers "246 
 
 Validity of special regulations 1247 
 
 Experience of driver 1248 
 
 Classification by amount of fare 1249 
 
 Fees 1250 
 
 Bond 1251 
 
 Rules as to operation — Rates to be shown on machine 1252 
 
 Inspection 1253 
 
 Right of municipality to require license I2S4 
 
 Who may enforce regulations — Injunctions 1255 
 
 Right to refuse or cancel license 1256 
 
 CHAPTER XUI 
 
 PfiDfiSTRIANS 
 I. DUTIES 0? BOTH PARTIES IN GENERAL 
 
 Pedestrians have equal rights with autoists 1257 
 
 Degree of care imposed on autoists 1258 
 
 Forcing pedestrians to give way 1259 
 
 Presumption of negligence in driver of vehicle 1260 
 
 Duty to discover and avoid pedestrians 1261 
 
 Duty of driver in rear seat to keep lookout 1262 
 
 Driving in zigzag course looking behind 1263 
 
 See-saw motions 1264 
 
 Driving through crowd 1265 
 
 No right to assume pedestrian will keep his course 1266 
 
 Excessive speed as ground foi< recovery 1267 
 
 Automobile racing 1268 
 
 The duty of the motorist as prescribed by statute 1269 
 
 II. DUTY OF PEDESTRIANS IN GENERAI,! 
 
 Duty of watchfulness 1270 
 
 Contributory negligence only in exceptional case 1271 
 
 Knowledge of approach of car imposes duty of care 1272 
 
 Must know of approach of automobile in time to aVoid accident 1273 
 
 Right to assume automobilists will be careful 1274 
 
 Right to assume law of the road will be observed 1275 
 
 Not enough that pedestrian thought she could cross safely 1276 
 
 Failure to run ." 1277 
 
 xliii 
 
TABI,E OP CONTENTS 
 
 SECTION 
 
 Pedestrian jumping in front of car swinging around corner 1278 
 
 When motor vehicle is drixen in zigzag course 1279 
 
 Failure to see unlighted automobile 1280 
 
 III. pedestrian's duty To i,ook and usten 
 
 Failure to look and listen is not necessarily negligence 1281 
 
 Rules of railroad crossings do not prevail 1282 
 
 When street unsafe for pedestrians 1283 
 
 Looking in direction from which vehicles bound to come 1284 
 
 Looking on alighting from another vehicle 1285 
 
 Pedestrian need not continuously look 1286 
 
 Looking and seeing autorfiobile and not taking second look 1287 
 
 Failure to take second look when pedestrian has right of way 1288 
 
 Pedestrian watching one automobile hit by another 1289 
 
 Pedestrian looking and believing he has time to cross 1290 
 
 Pedestrian looking and seeing nothing 1291 
 
 Where pedestrian could have seen automobile 1292 
 
 Crossing street in a diagonal course 1293 
 
 At regular crossing 1294 
 
 When not at regular crossing 1295 
 
 Walking while looking behind 1296 
 
 No duty to look behind while walking in street 1297 
 
 When defendant had last clear chance to avoid accident 1298 
 
 Questions for jury 1299 
 
 Relying on each other 1300 
 
 IV. POSITION OF PEDESTRIAN 
 
 Crossing street not at regular crossing 1301 
 
 Traveler in dangerous position — Last clear chance ., 1302 
 
 Stepping from footpath to roadway 1303 
 
 Walking along street 1304 
 
 Pedestrian on right hand side of road 1305 
 
 Pedestrian in center of street i3og 
 
 Jumping in front of automobile J307 
 
 Running in front of automobile 1308 
 
 Stepping back 1309 
 
 Pedestrian dodging back and forth 1310 
 
 Where pedestrian lying on street ; ' jju 
 
 On sidewalk crossing passageway j,j2 
 
 Climbing or hanging on behind— "hitching on" 1313 
 
 Plaintiff leaning against team 1314 
 
 Sitting on fence beside road ' ] ' j,jq 
 
 Plaintiff leaving vehicle ! ! ! ! j'Jid 
 
 xliv 
 
TABLE Ot CONTENTS 
 V. PEDfiSTMAN BOARDING OR ALIGHTING FROM STREET CAR 
 
 SECTION 
 
 Duty to look on boarding street car 1317 
 
 Duty to look on alighting from street car 1318 
 
 Alighting and crossing diagonally to curb 1319 
 
 Jumping from moving street car 1320 
 
 Plaintiflf looking and not seeing automobile on alighting 1321 
 
 Duty on alighting from street car to avoid vehicle on wrong side of street 1322 
 
 One crossing behind street car 1323 
 
 Passenger turning back after leaving street car 1324 
 
 When law forbids automobiles to pass close to standing street cars 1325 
 
 When automobile swerves suddenly 1326 
 
 Standing waiting for street car 1327 
 
 When pedestrians move to avoid street car 1328 
 
 VI. PEDESTRIAN EVIDENTLY UNAWARE OP AUTOMOBILE 
 
 In general 1329 
 
 Pedestrian driving animals 1330 
 
 Standing in road conversing 1331 
 
 Pedestrian examining object in his hand 1332 
 
 Pedestrian with lantern looking for lost object 1333 
 
 Pedestrian holding umbrella 1334 
 
 Pedestrian with shawl over her head 1333 
 
 VIL PEDESTRIAN APPEARING FROM BEHIND ANOTHER VEHICLE 
 
 Pedestrian's view cut off by another vehicle 1336 
 
 When two vehicles passing 1337 
 
 Pedestrian appearing from behind street car 1338 
 
 Pedestrian crossing in front of team 1339 
 
 Pedestrian crossing behind team 1340 
 
 Alighting from team 1341 
 
 VIIL LABORERS AND SPECTATORS 
 
 Persons engaged at work in the roadway 1342 
 
 Automobile backing in circle — Hitting laborer 1343 
 
 Police oflScer 1344 
 
 Spectators and crowds I344a 
 
 CHAPTER XUU 
 
 Women and Children 
 
 Care required of women and towards women 1345 
 
 Degree of care towards children 1346 
 
 xlv 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Care of children that of children of that age I347 
 
 The age of discretion ^34° 
 
 Child running into danger 1349 
 
 Running from behind another vehicle 135° 
 
 Running without looking '351 
 
 Child looking and not seeing I3S2 
 
 Child playing in street ^353 
 
 Crowd of children ^354 
 
 Fright of children I3SS 
 
 Boy chased out of building I356 
 
 Last clear chance ^357 
 
 Driving on wrong side of street I3S8 
 
 Coasting illegally I3S9 
 
 Negligence of parent permitting child on street 1360 
 
 Excessive speed sufficient evidence of negligence 1361 
 
 Minor a reckless driver . . . -. 1362 
 
 Gross negligence 1362 
 
 Question for jury 1364 
 
 Minor must appear by guardian 136S 
 
 CHAPTER XLIV 
 
 PERSON Under DiSABii,mES 
 
 In general 1366 
 
 Negligence by and toward infirm persons 1367 
 
 Cripple driving 1368 
 
 Driver dizzy 1369 
 
 Deaf bicyclist 1370 
 
 Deaf pedestrian 1371 
 
 Deaf person riding horse 1372 
 
 Blind pedestrian 1373 
 
 Negligence by and towards intoxicated person 1374 
 
 Duty towards intoxicated pedestrian 1375 
 
 Intoxication not necessarily a bar to recovery 1376 
 
 CHAPTER XLV 
 
 At Railroad Crossings 
 
 i. in generai, 
 
 Care at railroad crossings J377 
 
 Equal rights 1373 
 
 Presumption of negligence against railroad company 1379 
 
 xlvi 
 
TABI,B Of CONTENTS 
 
 II. MANAGEMENT OP GRADE CliOSSING 
 
 SECTION 
 
 Absence of guards 1380 
 
 Leaving view obstructed at crossing 1381 
 
 Cars standing near crossing 1382 
 
 Grade crossing in country 1383 
 
 Lowering gates 1384 
 
 Acts of flagman '. 1385 
 
 Failure of crossing bell to ring 1386 
 
 Wheel of automobile catching in planking 1387 
 
 in. MANAGEMENT OE MOTOR VEHICLE 
 
 Duty of driver to look 1388 
 
 Automobiles as distinguished from other vehicles 1389 
 
 Duty to look and listen when flagman at crossing 1390 
 
 Passenger need not look 1391 
 
 Alighting from the vehicle to go and look 1392 
 
 Duty to stop 1393 
 
 The Pennsylvania rule 1394 
 
 Skidding across track 1395 
 
 Auto stalled on track 1396 
 
 Speed of motor vehicle 1397 
 
 Duty to leave machine in danger 1398 
 
 Not using public crossing 1399 
 
 Where another crossing is available 1400 
 
 Crossing ahead of train where view unobstructed 1401 
 
 Where automobile brakes do not work 1402 
 
 Automobile running into train at night 1403 
 
 IV. MANAGEMENT OE TRAIN 
 
 Speed of train j4q . 
 
 Duty of engineer to see headlights 1405 
 
 Blowing whistle and ringing bell 1406 
 
 Evidence of signals 1407 
 
 Train backing j^og 
 
 Switching — Flying switch 1405 
 
 Headlight of train not lighted i4io 
 
 Railroad rules as evidence 1411 
 
 CHAPTER XLVI 
 
 Street Railways 
 
 i. in general 
 
 Mutual rights of street cars and vehicles 1412 
 
 Motorman's presumption ' J4J2 
 
 xlvii 
 iv 
 
TABLE OF CONTENTS 
 
 SECTION 
 
 Right to assume tnotorman will be careful 1414 
 
 Rules of company as evidence 141S 
 
 Liability of street railway company to its own passengers for collision 
 
 with automobile 1416 
 
 Automobilist standing between auto and track 141 7 
 
 Automobile standing too near car track 1418 
 
 Duty to stop before passing standing street car 1419 
 
 Pulling automobile out of Excavation 1420 
 
 Subway excavation 1421 
 
 II. DRIVING ON TRACK 
 
 In general 1422 
 
 Looking behind 1423 
 
 Turning from one track to another 1424 
 
 Street car overtaking vehicle 1425 
 
 Negligence towards one turning out of car tracks 1426 
 
 Power of automobile failing on track 1427 
 
 Automobile skidding on track 1428 
 
 Crowding vehicle on to track 1429 
 
 Head-on collision, last clear chance 1430 
 
 III. Mie^TING AT CROSSINGS 
 
 In general 1431 
 
 The burden of proof 1432 
 
 Care of motorists at crossing 1433 
 
 Duty to look and listen 1434 
 
 Must look just before crossing 1435 
 
 Failure to look 1436 
 
 Looking and failing to see 1437 
 
 Where autoist had time to cross if car running at reasonable speed 1438 
 
 Duty to stop before crossing tracks 1439 
 
 Backing across street car track 1440 
 
 Driving out of garage on to street car track 1441 
 
 Crossing on invitation of motorman 1442 
 
 Stopping suddenly on signal by traffic officer 1443 
 
 Motor vehicle stopping suddenly on track 1444 
 
 IV. MANAGEMENT OP STREET CAR 
 
 Degree of care demanded of motorraen 1445 
 
 Street car speed j . .g 
 
 Speed where vision obstructed by frost 1447 
 
 Car increasing speed on slippery rails 1443 
 
 xlviii 
 
TABIvE OF CONTENTS 
 
 SECTION 
 
 Ordinances I449 
 
 Sounding the gong 1450 
 
 Autoist relying on statutory signal from street car 1451 
 
 Failure of defendant's servants not operating car to give warning 1452 
 
 Headlights on street car I4S3 
 
 Absence of conductor 1454 
 
 Motorman conversing 14SS 
 
 Street car backing 1456 
 
 End of street car swinging across road 1457 
 
 Street car conductors on street or running board 1458 
 
 Passenger standing on running board or bumper of street car 1459 
 
 CHAPTER XL VII 
 
 Criminai, Negi,igi;nce 
 
 i. in generai, 
 
 Scope and treatment 1460 
 
 Division of the subject 1461 
 
 The term "criminal negligence'' 1462 
 
 Rules of evidence in criminal cases 1463 
 
 Competency and skill of operators at common law 1464 
 
 II. INTENT, MALICE ANP MOTIVE 
 
 In general 1465 
 
 Intent presumed from acts 1466 
 
 Malicious mischief 1457 
 
 Implied malice 1468 
 
 Malice in mala prohibita 1460 
 
 Malice in mala in se J470 
 
 Where particular result improbable 1471 
 
 III. HOMICIDE 
 
 Involuntary manslaughter j ,72 
 
 Homicide through negligence in general j^73 
 
 Homicide through negligent operation of motor vehicles 1474 
 
 Causing illness resulting in death ^^75 
 
 Proximate cause 1^75 
 
 Illegal act 5^77 
 
 Illegal speed j ,78 
 
 Standard of care in manslaughter cases 1470 
 
 Complaint for homicide j^jjjo 
 
 xlix 
 
TABI,^ OP CONTENTS 
 
 SECTION 
 
 Precaution generally 14S1 
 
 Dangerous agencies 1482 
 
 The vehicle, its appliances and repairs 1483 
 
 IV. CRIMES LESS THAN HOMICIDE; 
 
 Crime measured by results 1484 
 
 Assault and battery '. 1485 
 
 Assault and battery by driving motor vehicle i486 
 
 When illegal speed not proximate cause of battery 1487 
 
 Trespass 1488 
 
 Nuisance from speeding 1489 
 
 Contributory negligence in these cases 1490 
 
 Parties 1491 
 
 Misadventure in negligence cases 1492 
 
 Remedies 1493 
 
 Questions of fact not reviewed on appeal 1494 
 
 v. DEFENCES 
 
 Contributory negligence no defence 1495 
 
 Misadventure 1406 
 
 Self-defence 1407 
 
 Excusable crimes 1408 
 
 When defendant tries to avoid collision I4g9 
 
 Intoxication — Common law view 1500 
 
 Responsibility when driver is overcome from exposure or, illness 1501 
 
 Mistake of judgment 1C02 
 
 Inevitable accident icqi 
 
 Inevitable accident in motor vehicle cases 1504 
 
 Subsequent negligence by person injured 1505 
 
 VI. INDIVIDUALS RESPONSIBEE 
 
 Driver primarily responsible j-og 
 
 Rule of joint responsibility ' j-q_ 
 
 Accomplices q 
 
 Rule of joint responsibility as applied to passengers '.[ 1500 
 
 Misdemeanors Jll^ 
 
 Accessories and conspiracy in general y. . . | iqi j 
 
 Accessories 
 
 Conspiracy 
 
 New York statutes relating to crimes of negligence "and" accessori"es' '. ". ". '. '. ". '1514 
 
 Culpable negligence in New York j-ie 
 
 Conspiracy under New York statutes ^^^^.y,... ...... 1516 
 
 1 
 
TABIvB OF CONTENTS 
 
 CHAPTER XLVIII 
 
 "WttFui, AND Wanton" and Gross Negwgence 
 
 SECTION 
 
 Described and distinguished ISI7 
 
 Characteristics of various forms 1518 
 
 Gross negligence 1519 
 
 Wanton and wilful negligence IS20 
 
 Functions of the court and of the jury 1521 
 
 Contributory negligence in such cases 1522 
 
 Measure of damages in these cases 1523 
 
 CHAPTER XUX 
 
 Racing 
 
 Racing prohibited 1524 
 
 Joint liability 1525 
 
 Rights of municipalities to allow 1526 
 
 Liability of state for accidents 1527 
 
 Spectators 1528 
 
 Rights of traveler 1529 
 
 Liability of manufacturer 1530 
 
 CHAPTER L 
 
 Actions Under the Statute Where Death Occurs From Negligence 
 
 1. practice under the statutes generally 
 
 Scope of chapter 1531 
 
 Lord Campbell's act 1532 
 
 New York statute 1533 
 
 Actions compensatory 1534 
 
 Defect in highway 153? 
 
 Parent as dependent upon minor son 1535 
 
 Driver under control of defendant 1537 
 
 Pleading and proof 1538 
 
 Evidence of death I53p 
 
 Proximate cause 1540 
 
 Contributory negligence 1541 
 
 Trial '..'....'.'.'.'.'.'. IS42 
 
 Burden of proof 1543 
 
 Measure of damages 1544 
 
 li 
 
TABI,e Olf CONTENTS 
 II. THg MASSACHUSETTS ACT 
 
 SECTION 
 
 Massachusetts statute ^545 
 
 History of legislation •^- • ^546 
 
 Railroad cases ^547 
 
 "Gross" negligence ^548 
 
 Damages ^549 
 
 In case of joint defendants ISSO 
 
 CHAPTER IvI 
 
 Pleadings 
 
 In general ISSI 
 
 General averment of negligence ISS2 
 
 General averment of wilfulness ISS3 
 
 Bill of particulars ISS4 
 
 Ordinances or special rules I5SS 
 
 ' Contributory negligence iS56 
 
 Variance ". I5S7 
 
 Speed as negligence ISS8 
 
 Negligent steering as well as speed ISS9 
 
 Allegation of defendant's duty iS6o 
 
 Absence of warning iS6i 
 
 Agency t 1562 
 
 Proximate cause 1563 
 
 Stating that defendant ran into plaintiff 1564 
 
 Personal injuries 1565 
 
 Allegation that automobile was on the public highway 1566 
 
 Parties 1567 
 
 Last clear chance 1 1568 
 
 Plea of not guilty 1569 
 
 CHAPTER LII 
 
 Practice in Negligence Cases 
 
 I. IN general 
 
 General conduct of the trial , 1570 
 
 Harmless error 1571 
 
 Failure to produce witnesses 1572 
 
 Forcing jury to agree 1573 
 
 Points as to evidence must be taken at once 1574 
 
 Points must be raised in lower court 1575 
 
 Power of appellate court to reverse 1576 
 
 lii 
 
TABI,E OF CONTENTS 
 
 SECTION 
 
 Misconduct of jurors IS77 
 
 Physical examination of plaintiff 1578 
 
 Cross-examination 1579 
 
 Argument 1580 
 
 Uniting action for purchase price with action for conversion 1581 
 
 Prejudice of jurors 1582 
 
 II. INSTRUCTIONS TO JtJRY 
 
 Charge not clear 1583 
 
 Refusal of immaterial request 1584 
 
 Right of party to instruction as to law 1585 
 
 Right to instruction as to contributory negligence pleaded 1586 
 
 Charge must not cover matters not in pleadings 1587 
 
 Defining unlawful speed 1588 
 
 Charge must be confined to evidence 1589 
 
 Need not charge in absence of evidence 1590 
 
 Assuming disputed questions 1591 
 
 Disputed facts must be left to jury 1592 
 
 Specific acts of negligence claimed to be submitted to jury 1593 
 
 Financial condition of parties 1594 
 
 CHAPTER LIII 
 
 EviDENce 
 
 I. IN GENEHAL 
 
 Scope of chapter 1595 
 
 The word "evidence" 1596 
 
 There are two kinds of evidence, "direct" and "circumstantial" 1597 
 
 "Conclusive" evidence , 1598 
 
 "Presumptive" evidence I5gg 
 
 Judicial notice 1600 
 
 I/aw of another state 1601 
 
 "Best evidence" 1602 
 
 Best and secondary evidence 1603 
 
 n. ADMISSIONS OR DECtARATIONS 
 
 Admissions, confessions and assertions 1604 
 
 Conversations igoe 
 
 Declarations by agent x6o6 
 
 Admission as to speed 1607 
 
 Exclamations of witnesses 1608 
 
 liii 
 
'tARlt OP CONTENTS 
 
 SECTION 
 
 Statement by a companion of a party 1609 
 
 Unidentified statement in writing 1610 
 
 Request of bystander to defendant 1611 
 
 Statements as to ownership and agency 1612 
 
 Declarations as evidence of ownership 1613 
 
 Acts and words after accident 1614 
 
 Admission of liability , 1615 
 
 Offer of compromise 1616 
 
 Offer to care for injured 1617 
 
 Statement of facts 1618 
 
 Inconsistencies in testimony 1619 
 
 Waiver of objection to evidence 1620 
 
 1 
 
 III. COMPBIENCY 
 
 "Competent evidence" 1621 
 
 "Relevant" evidence 1622 
 
 "Material" evidence or "pertinent" evidence 1623 
 
 "Satisfactory" or "sufficient" evidence : 1624. 
 
 "Cumulative evidence" 1625 
 
 Uncontradicted evidence may be disbelieved 1626 
 
 Prudence and skill of driver 1627 
 
 Previous conduct of driver 1628 
 
 Practice of others 1629 
 
 Previous convictions 1630 
 
 Testimony that he did his best and all that could be done 1631 
 
 Testimony of habits of an animal , 1632 
 
 Wealth of defendant or that he is a lawyer immaterial 1633 
 
 View of the place by the jury 1634 
 
 Experiments made out of court 1635 
 
 Calculations 1636 
 
 Sound or "noise" as indicating speed 1637 
 
 Time in estimating speed 1638 
 
 Distance as basis of speed estimate 1639 
 
 Point of view jg^o 
 
 Testimony of operator ig^j 
 
 Condition of highway in another place 1642 
 
 Stop-watch or mechanical device ig^o 
 
 Speedometer jg-, 
 
 IV. WEIGHT AND SUFFICIENCY 
 
 In general jg^g 
 
 "Prima facie evidence" jg-g 
 
 A "prima facie case" jg .- 
 
 Uv 
 
TABI,^ OF CONTENTS 
 
 SECTION 
 
 Prima facie case and proximate cause 1648 
 
 In criminal cases 1649 
 
 Connecting the defendant with the crime 1650 
 
 That street is public highway 1651 
 
 V. PRESUMPTIONS AND BURDEN OE PROOE 
 
 The "burden of proof" 1652 
 
 "Presumptions" 1653 
 
 In a criminal case i6S4 
 
 Presumption of unchanged speed i6SS 
 
 VI. DOCUMENTARY 
 
 Books of account 1656 
 
 Time cards 1657 
 
 Hospital records 1658 
 
 Mortality tables 1659 
 
 Models, maps and diagrams 1660 
 
 Photographs 1661 
 
 Proof of license or certificate of registration 1662 
 
 Existence of public report of breach of speed laws 1663 
 
 VII. SURROUNDING CIRCUMSTANCES 
 
 In general 1664 
 
 Motive for haste 1665 
 
 Time or distance within which vehicle stopped 1666 
 
 Evidence as to position of vehicle after accident 1667 
 
 Wheel tracks '. 1668 
 
 Marks on road i66g 
 
 Effects of collision 1670 
 
 Damaged parts of car 1671 
 
 Evidence of condition of automobile when shipped , 1672 
 
 Failure of driver to hear screams 1673 
 
 Conduct after accident 1674 
 
 That driver runs away 1675 
 
 Speed of automobile before accident 1676 
 
 Speed after accident 1677 
 
 Operator talking 1678 
 
 Power of the engine, etc 1680 
 
 Speed claimed impossible 1681 
 
 Appearance of persons 1682 
 
 VIII. EXPERT OPINION EVIDENCE 
 
 Expert evidence as to distance within which automobile could be stopped. 1683 
 
 Expert evidence of value 1684 
 
 Iv 
 
TABLB OF CONTENTS 
 
 SECTION 
 
 Expert evidence of speed '"°S 
 
 Experience; acting in official capacity 1686 
 
 Opinion as to safety of car i"°7 
 
 Form of experts' opinion 1688 
 
 Expert's qualifications decided by lower court 1689 
 
 IX. OPINIONS OF NON-EXPERTS 
 
 In general 1690 
 
 Experience of non-expert witness i6c)i 
 
 Conclusions inadmissible 1692 
 
 Non-expert witnesses cannot characterize the speed - .. t6q3 
 
 Plaintiff may give opinion 1604 
 
 Opinion incompetent if based on hearsay 169S 
 
 Opinion of speed based on comparison 1606 
 
 Opinion based on speed of exhaust \(*ltf 
 
 Opinion as to room to pass I'ioS 
 
 Speed trtin 
 
 Belief of witness as to facts 1700 
 
 Testimony of passengers 1701 
 
 Neighbors may testify 1702 
 
 Non-expert opinion whether operator careful 1703 
 
 Province of court 1704 
 
 X. WITNESSES 
 
 "Competent witness" 1705 
 
 Capacity to testify is a question for the court 1706 
 
 Children as witnesses 1707 
 
 Bias 1708 
 
 Physician 1709 
 
 Privilege of physicians 1710 
 
 Cross-examination 1711 
 
 CHAPTER LIV 
 
 Damages 
 
 i. in geneeai, 
 
 Scope of chapter 1712 
 
 Damages defined 1713 
 
 Intent and motive in actions of tort affecting damages 1714 
 
 Damages must be reasonable 1715 
 
 Classification of damages into "liquidated" and "unliquidated" 1716 
 
 Division of the subject 1717 
 
 Ivi 
 
TABLE 0:P CONTENTS 
 
 SECTION 
 
 Compensatory damages '71° 
 
 "Elements" of compensatory damages ^7^9 
 
 In suit by married woman ^720 
 
 II. DAMAGES FOR PERSONAI, INJURIES 
 
 In general '72i 
 
 Damages excessive ^722 
 
 Damages not excessive i723 
 
 Damages inadequate ._ ^724 
 
 Where verdict larger than claimed 172S 
 
 Instructions as to damages 1726 
 
 Control of appellate court over amount 1727 
 
 Disease 1728 
 
 Employment of a substitute 1729 
 
 Expense of maintaining suit 173° 
 
 Circumstances of the parties I73i 
 
 Mental suffering 1732 
 
 Fright and inconvenience I733 
 
 Avoiding damage 1734 
 
 Subsequent negligence enhancing damages I73S 
 
 In cases of wilful negligence 1736 
 
 Future damages — "single action" 1737 
 
 Permanent injuries 1738 
 
 III. DAMAGES FOR INJURIES TO PERSONAI, TROPERTY 
 
 The general rule 1739 
 
 Difference in value before and after damage 1740 
 
 Evidence of what was done to car after accident 1741 
 
 Expert evidence of value 1742 
 
 Storage or chauffeur's wages 1743 
 
 Cost of substitute car 1744 
 
 Value of use during repairs 174S 
 
 Expense of new parts '. . . . 1746 
 
 Price paid as evidence of value 1747 
 
 Expense of repairs 1748 
 
 Care of injured property 1749 
 
 Replevin 1750 
 
 Ownership in relation to replevin 1751 
 
 Injuries to animals 1752 
 
 IV. DAMAGES IN ACTIONS OP CONTRACT 
 
 Measure of damages in cases of sales with warranty of article 1753 
 
 Loss of future profits 1754 
 
 Ivii 
 
TABLE OF CONTENTS 
 
 V. MITIGATION OF DAMAGSS 
 
 SECTION 
 
 In general I7SS 
 
 Matter of evidence ^756 
 
 Wages I7S7 
 
 Insurance, pension or gift 175.8 
 
 Criminal conviction I759 
 
 VT. AGGRAVATION Of DAMAGES 
 
 In general 1760 
 
 Massachusetts rule 1761 
 
 VII. EXEMPLARY OR PUNITIVE DAMAGES 
 
 In general 1762 
 
 When recoverable 1763 
 
 Province of the jury and court 1764 
 
 Must be pleaded 176S 
 
 Responsibility of employers 1766 
 
 Joint defendants 1767 
 
 Amount recoverable 1768 
 
 Mitigation of punitive damages 1769 
 
 Enhancement of punitive damages 1770 
 
 Criminal proceedings 1771 
 
 Punitive statutes 1772 
 
 Massachusetts rule 1773 
 
 VIII. DAMAGES FOR "pecuniary INJURIES" UNDER THE STATUTES RELATING TO DEATH 
 
 OF THE INJURED PERSON 
 
 In general 1774 
 
 Assessment of "'pecuniary damages" 1775 
 
 Where persons interested will receive property as heirs on death 1776 
 
 Insurance 1777 
 
 Massachusetts rule 1778 
 
 IX. VERDICTS 
 
 In relation to negligence 1779 
 
 Setting aside verdicts 1780 
 
 Modifying verdicts 1781 
 
 Compromise verdict 1782 
 
 Special verdicts inconsistent with general verdict 1783 
 
 APPENDICES 
 
 A. Statutes defining law of the road 1127 
 
 B. Definitions 1134 
 
 C. Street traffic regulations 114^ 
 
 D. Headlight regulations 1156 
 
 E. Synopsis of motor vehicle laws 1158 
 
 IviJi 
 
TABLE OF CASES CITED 
 
 (References are to pages.) 
 
 Achenbach v. Kincaid, 25 Idaho 768, 140 Pac. 529 84, 98 
 
 Ackerman v. Stacy, 157 App. Div. 835, 143 N. Y. S. 227 IC46 
 
 Adair v. United States, 208 U. S. 161, 173, 28 S. C. 277 22, 138 
 
 Adams v. AveriU, 87 Vt. 230, 88 Atl. 738, 4 N. C. C. A. 9, 8 N. C. C. A. 583,-296, 842 
 
 Adams v. Boston & N. Ry., 191 Mass. 486, 78 N. E. ii7, 869 
 
 Adams v. Carlisle, 38 Mass. 146 271, 672 
 
 Adams v. Galveston Ry. Co., Tex. Civ. App. 164 S. W. 8S3, 8 N. C. C. A. 
 
 1042 879 
 
 Adams v. Howe, 14 Mass. 340, 344 17 
 
 Adams v. State, 6s Ind. 574 959 
 
 Adams v. Swift, 172 Mass. 521, 52 N. E. 1068, 278 
 
 Adler v. Godfrey, 153 Wis. 186, 140 N. W. 1115 4iS> 437 
 
 Adler v. Martin, 179 Ala. 97, 50 So. 597 120, 129, 541, 828 
 
 Aiken v. Holyoke St. Ry., 184 Mass. 269, 271, 68 N. E. 238 
 
 334, 624, 663, 68s, 693, 923, 925, 978 
 
 Aiken v. Hyde, 99 Mass. 183 505 
 
 Aiken v. Metcalf (Vt. 1916), 97 Atl. 669 825, 828, 831, 839 
 
 Ainsworth v. United States, i App. Cas. D. C. 525 954 
 
 Akers v. Fulkerson, 153 Ky. 228, 154 S. W. iioi, 4 N. C. C. A. 4 858 
 
 Akin v. Lee, 206 N. Y. 20; 99 N. E. 85 ; Ann. Cas. 1914 A 947; i N. C. C. 
 
 A. 694 525 
 
 Alabama & V. Ry. v. Davis, 69 Miss. 444, 11 So. 602 778 
 
 Alabama, Etc., R. Co. v. Hall, 105 Ala. 606, 17 So. 176 1060, 1063, 1064 
 
 Albany v. Cunliflf, 2 N. Y. 165 426 
 
 Alden v. Kaiser, 121 Minn. 11 ; 140 N. W. 343 442 
 
 Aldrich v. Boston & W. R., 100 Mass. 31, 32 415 
 
 Aldrich v. Howard, 8 R. I. 246 417 
 
 Aldrich v. Pelham, 67 Mass. 510 1028 
 
 Alger V. City of Lowell, 85 Mass. 402, 406 947 
 
 Allen V. Bland, Tex. Civ. App., 168 S. W. 35, 8 N. C. C. A. 299 
 
 246, 594, 86s, 1028, 1097 
 
 Allen V. Fulton Motor Car Co., 128 N. Y. S. 419 396 
 
 Allen V. Pearson, 89 Conn. 401, 94 Atl. 277, 9 N. C. C. A. 915 I7S, 872 
 
 Allen V. Sackrider, 37 N. Y. 341, 342 801 
 
 Allen V. Smith, 84 Ohio 283, 95 N. E. 829 48 
 
 Allen V. State, Tex. Crim. App. 169 S. W. 1151 315 
 
 Allison V. Chicago, M. & St. P. Ry. Co., 83 Wash. 591, I4S Pac. 608, 8 N. 
 
 C. C. A. 1044 887 
 
 Allyn V. Boston & A. R., 105 Mass. ^^ 635, 774, tjt, 784, 797 
 
 Alsever Y, MiJjn. & St. L, R., 115 la. 338, 88 N. W. 841 584 
 
 lix 
 
TABLE OF CASES CITED 
 
 American Automobile Ins. Co. v. Commission of Insurance, 173 Mich. 
 
 29s; 140 N. W. 557 524 
 
 American Express Co. v. Terry, 126 Md. 254, 94 Atl. 1026 305, 730 
 
 American Fidelity Co. v. Bleakley, 157 Iowa 442, 138 N. W. 508 524 
 
 American Motor Car Co. v. Robbins, 181 Ind. 417 ; 103 N. E. 641, 8 N. C. 
 
 C. A. 372 994, 1064, 1126 
 
 Amoskeag, Etc., v. The John Adams, i Fed. Cases No. 338, p. 795 309, 949 
 
 Anderson v. Kinnear, 80 Wash. 638, 141 Pac. 1151, 301, 712 
 
 Anderson v. Puget Sound Traction, Etc., Co., Wash. 1916, 154 Pac. 135 . . 910 
 
 Anderson v. Sparks, 142 Wis. 398, 125 N. W. 925 279, 706, 711 
 
 Anderson v. Sterritt, 95 Kan. 483, 148 Pac. 635, 9 N. C. C. A. 836 297 
 
 Anderson v. Van Riper, 128 N. Y. S. 66 ; 9 C. C. A. 59 602 
 
 Anderson v. White Co., 68 Wash. 568, 123 Pac. 1009 437 
 
 Andries v. Everitt, Metzger Flanders Co., 177 Mich, no, 142 N. W. 1067 
 
 294,296,1105 
 
 Angell V. Lewis, 20 R. I. 391 309, 710, 711 
 
 Anselraent v. Daniel, 23 N. Y. Supp. 875, 4 Misc. 144 666, 851 
 
 Anthony v. Kiefner, 96 Kan. 194, 150 Pac. 524 790, 797 
 
 Anthony v. Moore & Munger Co., 135 N. Y. App. Div. 203, 120 N. Y. S. 
 
 402 1079, IIOI 
 
 Apperson v. Lazro, 44 Ind. App. 186, 87 N. E. Repr. 97 I47i 273> 866, 870 
 
 Applewould V. Dosch, 239 Pa. 479, 86 Atl. 1070, Ann. Co. 1914D, 481 121 
 
 Archy, Bx parte, 9 Cal. 147 136 
 
 Arey v. City of Newton, 148 Mass. 598, 20 N. E. 327 711 
 
 Armann v. Caswell, 30 N. D. 406, 152 N. W. 813 7^7, 1042 
 
 Armstead v. Lounsberry, Minn. (1915) ; 151 N. W. 542 292, 297, 716 
 
 Armstrong v. Chicago, M. & St. P. Ry., 35 S. Dak. 398, 152 N. W. 696 . . 1 105 
 
 Armstrong v. Sellers, 182 Ala. 582, 62 So. 28, 9 N. C. C. A. 836 542, 716 
 
 Arnold v. State, 148 N. Y. S. 479, 163 App. Div. 253 982, 975 
 
 Aronson v. New York Taxicab Co., 125 N. Y. S. 756 (Sup. App. Term, 
 
 1911) 1014 
 
 Aronson v. Riker, 185 Mo. App. 528, 172 S. W. 641 . . .598, 735, 82'2, 836, 1046, 1089 
 
 Arrington v. Horner, 88 Kan. 817, 129 Pac. 1159 7S6 
 
 Arseneau v. Sweet 106 Minn. 257, 1908, 119 N. W. 46 649, 896 
 
 Atlantic & D. R. v. Ironmonger, 95 Va. 625, 29 S. E. 319 778 
 
 Atlantic Coast R. Co. v. Weir, 63 Fla. 69, 74; 58 So. 641, 41 L. R. A. N. 
 
 S. 307 ; Ann. Cas. 1914 A. 126 661, 715, 878 
 
 Atwood V. Boston, Etc., F. Co., 185 Mass. 557, 71 N. E. 72 1107 
 
 Augerson v. Seattle Electric Co., 73 Wash. 529, 132 Pac. 222 897 
 
 Aurora v. Hillman, 90 111. 61 687 
 
 Austin St. Ry. Co. v. Heflin, Tex. Civ. App. ; 158 S. W. 1040 662, 909 
 
 Automobile Service Co., 176 Fed. 792 (Ala. Dis. 1910) 514 
 
 Aycrigg v. New York & Erie Railroad, 30 N. J. Law 460 590 
 
 Ayers v. Ratshesky, 213 Mass. 589 ; loi N. E. 78, 7 N. C. C. A. 125 
 
 760, 861, 864, 1030 
 Ayres v. City of Chicago, 239 111. 237, 87 N. E. 1073 53, 71, 76, 124 
 
 Ix 
 
TABIvE OP CASES CITED 
 
 Bachelder v. Morgan, 179 Ala. 339, 60 So. 81S, Am. Cas. igisC, 888, S N. 
 
 C. C. A. 187, 7 N. C. C. A. S 847, 1014, 1046, 1089 
 
 Bagwell V. Southern Ry. Co., \6y N. C. 611 ; 83 S. E. 814. .681, 876, 885, 888, 889, 1012 
 
 Bailey v. Eastern Railroad, 125 Mass. 65 1034, 1035 
 
 Bailey v. Jourdan, 18 N. Y. App. Div. 387, 46 N. Y. S. 399 778 
 
 Bailey v. Mayer, 107 N. Y. Supp. 624, 56 Misc. 331 1000 
 
 Bailey v. New Haven & N. Co., 107 Mass. 497 1029 
 
 Bailey v. Northwestern O. N. G. Co., 4 Ohio Circuit., 471 427 
 
 Baillargeon v. Myers, 27 Cal. App. 187, 149 Pac. 378 298, 769 
 
 Baker v. Bolton, i Camp. 493 985 
 
 Baker v. Close, 137 N. Y. App. Div. 529, 121 N. Y. S. 1079 636, 656, 834, 849 
 
 Baker v. Fall River, 187 Mass. 53, 72 N. E, 336 4, 205, 314, 215, 217, 221, 222 
 
 Baldie v. Tacoma St. Ry., 52 Wash. 75, 100 Pac. 162 272, 840, 900, 901 
 
 Baldwin v. Locomotive Co. of America, 143 App. Div. 599, 128 N. Y. S. 
 
 429 976, 982 
 
 Baldwin v. Maggard, 162 Ky. 424, 172 S. W. 674 618, 844 
 
 Baldwin v. Western Railroad, 4 Gray 333 1095 
 
 Ballard v. Collins, 63 Wash. 493, 115 Pac. 1050 281, 282, 283, 1093, 1105 
 
 Ballard v. Durr, 165 Ky. 632, 177 S. W. 445 762, 1003, 1021 
 
 Baltimore v. Maryland, 166 Fed. Repr. 641 (Md) 
 
 214, 219, 220, 221, 222, 781, 790, 990, 1123 
 
 Balto. & Ohio R. v. State, 79 Md. 335, 344, 29 Atl. 518 ^T7 
 
 Bangs V. Farr, 209 Mass. 339; 95 N. E. 841, 2nd case 474, 487 
 
 Bank v. Pordyce, 9 Pa. 275 1075 
 
 Banker Brothers Co. v. Pennsylvania, 222 U. S. 210, 32 Sup. Ct. Rep. 38. . 471 
 
 Banks v. Braman 188 Mass. 367, 74 N. E. 594 250, 251 
 
 334, 348, 622, 624, 62s, 662, 663, 664, 923. 92s, 929, 930, 939, 940, 941, 942, 966, 978 
 
 Banks v. Railroad, 40 Mo. App. 464 700 
 
 Bannisfer v. Jevne Co., 28 Cal. App. 133 ; 151 Pac. 546 84s 
 
 Banta v. City of Chicago, 172 111. 204, 221, 50 N. E. 233 Tj 
 
 Barbier v. Connolly, 113 U. S. 27, 31 133, 136 
 
 Barbour v. Shebor, 177 Ala. 304, 58 So. 276, i N. C. C. A. 120 828, looi, 1005 
 
 Barden v. Pelch, 109 Mass. 154, 157 609 
 
 Bardshar v. Seattle Electric Co., 72 Wash. 200, 130 Pac. loi 906 
 
 Barfield v. Evans, 187 Ala. 579, 65 So. 928 148, igo 
 
 Barger v. Vissell, (Mich.) ; 154 N. W. 107, 1916, 618, 848 
 
 Barker v. Savage, 45 N. Y. 191 819 
 
 Barlow v. Foster, 149 Wis. 613, 136 N. W. 822 332 
 
 Barnard v. Bartlett, 64 Mass. soi 371 
 
 Barnard v. Poor, 38 Mass. 378, 382 -. . . .1092, 1118 
 
 Barnes v. Deliglise, 78 Wis. 628, 47 N. W. 1129 427 
 
 Barnes v. Rumford, 96 Me. 315, 52 Atl. 844 tj-j 
 
 Barnes v. Zettlemoyer, 62 S. W. Repr. iii 255 
 
 Barnett v. Anheuser Busch Agency, 140 N. Y. S. 1029 (1913) 301 
 
 Barren v. Uncapher, 117 Pa. St. 3S3, n Atl. 619; J. T. & K. W. R. v. P. 
 
 L. T. & M., 27 Fla. 1, 99, 9 So. 661 . . . .• 687 
 
 Ixi 
 
TABLE OF CASES CITED 
 
 Barrett v. New York, Cir. Ct. 1911, 189 Fed. 268 118 
 
 Barrett v. Pritchard, 19 Mass. 512, 515 455 
 
 Barrow v. Arnaud, 8 Q. B. Adol. & El. N. S. 595 454 
 
 Barry v. American Locomotive Auto Co., 113 N. Y. Supp. 826 406, 426 
 
 Bartlett v. Blanchard, 79 Mass. 429 : 458 
 
 Bartley v. Marino, Tex. Civ. App. ; 158 S. W. 1156 7i3, 851 
 
 Bartley v. Morris, Tex. Civ. App., is8 S. W. 1156 821 
 
 Barwick v. Eng. Joint S. B. L,. R. 2 Ex. 259, 265 543 
 
 Bastable v. Little, Law Reps. K. B., 1907, Vol. i, p. 59 349 
 
 Bates V. Reynolds, 195 Mass. 554, 81 N. E. 260 382 
 
 Batroot v. St. Paul City Ry. Co., 125 Minn. 308, 146 N. W. 1107 907 
 
 Bauchet v. Oregon Motor Car Co., Oregon, 152 Pac. 888, 1915 504 
 
 Baugher v. Harman, no Va. 316, 66 S. E. 86 721, 754 
 
 Bauhofer v. Crawford, Cal., 117 Pac. 931 303, 1042 
 
 Bayles v. Plumb, 126 N. Y. S. 425, 141 App. Div. 786 1051 
 
 Beach v. Seattle, 85 Wash. 379 ; 148 Pac. 39 678, 791 
 
 Beale v. Old Colony Street Railway, 196 Mass. 119 81 N. E. 867 993 
 
 Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319, 50 L. R. A. N. S. iioo 795 
 
 Beaucage v. Mercer, 206 Mass. 492 ; 92 N. E. 774 679 
 
 Beaumont S. L. & W. Ry. Co. v. Moy (Tex. Civ. App. 1915) 174 S. W. 697, 
 
 8 N. C. C. A. 1041 887 
 
 Beck V. Cox, W. Va. 1916, 87 S. E. 492 115 
 
 Beck V. East River Ferry Company (6 Robertson 82) 793 
 
 Beckley v. Alexander, "jj N. H. 255, 90 Atl. 878 1031, 1083 
 
 Beckwith v. Pirung, 134 N. Y. App. Div. 608, 119 N. Y. S. 444 421 
 
 Beecroft v. Van Shaick, 104 N. Y. Supp. 458 464, 467, 513 
 
 Beekley v. Alexander, 'i"; N. H. 255; 90 Atl. 878 726 
 
 Beem v. Tama Ry. Co., 104 Iowa 563, Ti N. W. 1045 895 
 
 Beer Co. v. Massachusetts, 97 U. S. 25, 33 22, 338 
 
 Beggs V. Clayton, 40 Utah 389, 121 Pac. 7 714 
 
 Beggs V. State, 23 N. E. 693, 122 Ind. 54 358 
 
 Belk V. People, 125 111. 584, 17 N. E. 744 663, 944, 954 
 
 Bell V. Great Nor. Ry., 26 L. R. (Ir.) 428 1096 
 
 Belleveau v. Lowe Supply Co., 200 Mass. 237, 86 N. E. 301 
 
 707, 714, 824, 83s, 1019, 1024 
 
 Bellingham v. Cissna, 44 Wash. 397, 87 Pac. 481 96, 117, 120, 124 
 
 Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232 135 
 
 Belton v. Baxter, 54 N. Y. 24S, 247 824 
 
 Benjamin v. Holyoke St. Ry. Co., 160 Mass. 4, 35 N. E. 95 740, 749, 867 
 
 Benn v. Forrest, 213 Fed. 763, 130 C. C. A. 277, 3d Cir., 8 N. C. C. A. 54 
 
 SSO, S62, 830, 83s 
 
 Benner Livery & U. Co. v. Busson, 58 III. App. 17, 20 405, 798 
 
 Bennett v. Boggs, i Baldw. (U. S.), 60, 74 " 53 
 
 Bennett v. Busch, 75 N. J. L. 240, 67 Atl. 188 147, 572, 635, 636, 1019, 1022 
 
 Bennett v. Dutton, 10 N. H. 481 goi 
 
 Ixii 
 
TABI,B O? CASSS CITED 
 
 Bennett v. Lovell, 12 R. I. 166 209 
 
 Benoit v. Miller, 67 Atl. Repr. 87 (R. I.) 636, 823, 830, 839, 1126 
 
 Bensel, in re, 123 N. Y. S. 217, 124 N. Y. S. 716, 130 N. Y. S. 689 130 
 
 Berg V. Rapid Motor Vehicle Co., 78 N. J. L. 724, 75 Atl. 933 
 
 446, 495, S02, 504, 507 
 
 Bergman v. St. Louis, I. M. & S. R., 88 Mo. 678, i S. W. 384 99 
 
 Bergold v. Nassau Elec. Co. R., 30 N. Y. App. Div. 438, 52 N. Y. S. 11 . . 784 
 
 Berman v. Schultz, 81 N. Y. Supp. 647, 1903 244, 305, S9i, 688, 699 
 
 Bernina, The, 12 P. D. 58 and 13 A. C. i 774, 779 
 
 Berry, Bx parte, 147 Cal. 523, 82 Pac. 44 95, 119, 128, 537, 644, 1017, 1041 
 
 Bertels v. Laurel Run Turnpike Co., 31 Pa. Co. Ct. Reps. 129 38 
 
 Bertrand v. Hunt, Wash., 1916, 134 Pac. 804 S64, 644 
 
 Bertrand v. Milwaukee Electric Ry. & Light Co., 156 Wis. 639, 146 N. W. 
 
 91S 899 
 
 Bertschy Motor Co. v. Brady (Iowa), 149 N. W. 42 409 
 
 Bevan v. Walters, 3 Car. & P. 520 412 
 
 Beverley v. Boston El. Ry., 194 Mass. 457, 80 N. E. So7 1069 
 
 Bidwell V. Los Angeles, Etc., Ry. Co., 169 Cal. 780, 148 Pac. 197 673, 8go, 905^ 
 
 Bigelow V. Randolph (Inhab.), 80 Mass. 541, Metcalf, J 213 
 
 Bigelow V. Inhab. of Rutland, 58 Mass. 247 636, 657 
 
 Bigler V. Plickinger, 55 Pa. St. 279 448 
 
 Bills V. City of Goshen, 117 Ind. 221, 226, 20 N. E. iiS 114 
 
 Bilz V. Powell, 50 Colo. 482; 117 Pac. 344; 38 L. R. A. N. S. 847 (note) 491 
 
 Biogini v. Steynen, 124 Md. 369, 92 Atl. 806 838 
 
 Birch V. Abercombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59 
 
 246, 350, 593, 869 
 
 Birch V. Athol & Orange St. Ry. Co., 198 Mass. 257, 84 N. E. 310 902, 908 
 
 Birmingham, Etc., Co. v. 2SXna. Accident, Etc., Co., 184 Ala. 601, 64 So. 44 903 
 
 Birmingham, Etc., Ry. Co. v. Carpenter, Ala. 1916; 69 So. 626 677, 680, 999 
 
 Birmingham Ry. & E. Co. v. Baker, 132 Ala. 507, 31 So. 618 777 
 
 Birmingham Ry. TAght & Power Co. v. .(Etna Accident, Etc., Co., 184 Ala. 
 
 601 ; 64 So. 44 716 
 
 Bishop V. Weber, 139 Mass. 411, 68 N. W. 95 43o 
 
 Bjornquist v. Boston & Albany R., 185 Mass. 130, 70 N. E. 53, 102 Am. St. 
 
 Rep. 332 334, 926, 975, 978 
 
 Black V. Burlington, Etc., R., 38 Iowa 518 1042 
 
 Black V. Seattle, Wash., 148 Pac. 39 219 
 
 Blackden v. Blaisdell, 113 Me. 567, 93 Atl. 540 747 
 
 Blackmer v. McCabe, 86 Vt. 303 ; 85 Atl. 113 6gi 
 
 Blackwell v. McGrew, Tex. Civ. App., 141 S. W. 1058 755 
 
 Blackwell v. Renwick, 21 Cal. App. 131, 131 Pac. 94 827, 835, 838 
 
 Blade V. Draper, 89 Neb. 787, 132 N. W. 410 288, 951, 1056 
 
 Blair v. Phelham, 118 Mass. 421 1044 
 
 Blalack v. Blacksher, 11 Ala. App. 545, 66 So. 863 525, 869, 1050 
 
 Blatchley v. Moser, 15 Wend. Reps (N. Y.) 215 357 
 
 bciii 
 
TABIDS OF CASES CITED 
 
 Blick V. Olds Motor Works, 175 Mich. 640, 141 N. W. 680, 49 L. R. A. 
 
 N. S. 88 603 
 
 Bliss V. Walcott, 40 Mont. 491 ; 107 Pac. 423 754, 7SS 
 
 Blouse V. Geesey, 35 Pa. Co. Ct. Reps. 181 SS6, 865 
 
 Blynn v. Pontiac (Mich. Ind. Ace. Bd.) 185 Mich. 33, igi N. W. 681, 5 N. 
 
 C. C. A. 910 546, 601 
 
 Blyth V. Birmingham, N. W. 11 Exchequer, 784 ■■ 617 
 
 Bodwell V. North Adams, no Mass. 511 214 
 
 Body V. N. Y. City Ry. Co., s6 N. Y. Misc. 602, 107 N. Y. S. 31 1104 
 
 Bogart V. New York, 200 N. Y. 379, 93 N. E. 937 972 , 976, 981, 982, 983 
 
 Bogle, Bx parte, Tex, Crim. App. 179 S. W. 1193 815, 816, 817 
 
 Bogue V. Bennett, 156 Ind. 478, 60 N. E. 143 38, in, iio, ng, 210 
 
 Bohan v. Met. Express Co., 122 N. Y. App. Div. 590, 592, 107 N. Y. Supp. 
 
 S30 SS2, 561, 567, 569, 570 
 
 Bohringer v. Campbell, 137 N. Y. S. 241, 154 App. Div. 879 762, 860 
 
 Boles V. Merrill, 173 Mass. 491, 53 N. E 466, 482 
 
 Bolton V. Baxter, 54 N. Y. 245 819 
 
 Bonds V. State, 16 Ga. App. 401, 85 S. E. 629 i, 2 
 
 Bondy v. N. Y. City R., 56 N. Y. Misc. 602, 107 N. Y. Supp. 31 6 
 
 Bongner v. Ziegenhein, 165 Mo. App. 328, 342, 14 S. W. 182, 186 825 
 
 Bonin V. Ballard, 196 Mass. 524, 527, 82 N. E. 702 561 
 
 Booth V. Dallas, Tex. Civ. App., 179 S. W. 301 7°, 124, 815, 816 
 
 Booth V. Meagher, 1 13 N. E. 367, 1916, Mass 838, 869 
 
 Booth V. Mister, 7 C. & P. 66 558 
 
 Booth V. R. W. & O. R. Co., 140 N. Y. 267 254 
 
 Borders v. Metropolitan St. Car Co., 168 Mo. App. 172, 153 S. W. 72, 5 
 
 N. C. C. A. 119 734 
 
 Borg V. Larson, (Ind. 1916), in N. E. 201 290 
 
 Borglum v. New York, N. H. & H. R. (Conn. 1916), 96 Atl. 174 877, 878 
 
 Borgner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 846 
 
 Boss v. Litton, 5 Car. & P. 408 (Eng.) 820, 866 
 
 Boston V. Schaffer, 26 Mass. 415 123 
 
 Boston & A. R. V. Shanly, 107 Mass. 568 686 
 
 Botts V. Chicago, B. & Q. R. Co., 180 Mo. App. 368, 167 S. W. nS4 885,890 
 
 Bouma v. Dubois, 169 Mich. 422, 13s N. W. 322 308, 761, 835 
 
 Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. N. S. 701 
 
 note, 2 N. C. C. A. 318, 6 N. C. C. A. 317. .29, 191, 192, 193, 2S0, 594, 706, 1015 
 
 Bowden v. Walla Walla Valley Ry. Co., 79 Wash. 184, 140 Pac. 549 906 
 
 Bowen v. State, 100 Ark. 232, 140 S. W. 28 ion, 1023, 1063 
 
 Bowes V. Hopkins, 84'Fed. Repr. 769 (111.) 1035 
 
 Bowler v. O'Connel, 162 Mass. 319, 38 N. E. 498 542 
 
 Bowles V. Lowery, 5 Ala. A. 555, 59 So. 696 713, 977, 11x5 
 
 BowUng V. Roberts, 235 Penn. 89, 893 Atl. 600 1039 
 
 Bowser v. Wellington, 126 Mass. 391 819 
 
 Boyce, Bx parte, 75 Pac. i, 27 Nev. 299 14 
 
 Boyd v. Boston Elevated Ry. Co., Mass. (1916), 112 N. E. 607 652 
 
 Ixiv 
 
TABLE OF CASES CITED 
 
 Bozeman, Ex parte, 7 Ala. App. iSi, 63 So. 201 73 
 
 Bradburn v. G. W. R. Co., L. R. 10 Ex. i S26 
 
 Bradford v. Manly, 13 Mass. 138, 144 502 
 
 Bradford Glycerine Co. v. St. Mary's Woolen Manufacturing Co., 60 Ohio 
 
 St. 560, 45 L. R. A. 658 254 
 
 Bradley v. Cleary Co., 86 N. J. L. 338 ; 90 Atl. 1015 526 
 
 Bradley v. Jaeckel, 65 Misc. 509, 119 N. Y. Supp. 1071 . 272, 280, 649, 834 
 
 Branch v. Libbbey, 78 Maine 322 1028 
 
 Brandt v. New York Rys. Co., 8s Misc. 40, 147 N. Y. S. 17 907, 912 
 
 Brannen v. Kokomo G. & J. G. R. Co., 115 Ind. 115 924 
 
 Braud v. Taxa Cab Co., 129 La. 781, 56 So. 885 839 
 
 Braun, Ex parte, 141 Cal. 204, 72 Pac. 780 no 
 
 Braverman v. Hart, 105 N. Y. Supp. 107, 1907 565, 570 
 
 Brazier v. Philadelphia, 215 Pa. St. 297, 64 Atl. 508 in, 118, 119. 121, 199 
 
 Breese v. Nassau Electric R. Co., 162 App. Div. 455, 147 N. Y. S. 416 895 
 
 Bremner v. Newcastle, 83 Maine 415 1028 
 
 Brennan v. Met. St. Ry., 60 N. Y. App. Div. 266, 69 N. Y. S. 1025 1051 
 
 Brenner v. Ford, 116 La. 550 ; 40 So. 894 581, 586 
 
 Bresee v. Los Angeles T. Co., 149 Cal. 131, 85 Pac. 152 777 
 
 Brewing v. Metropolitan St. Ry. Co., 180 Mo. App. 434, 168 S. W. 248. . 818 
 
 Brewster v. Baker, 129 N. Y. App. Div. 724, 113 N Y. S. 1026, 1909. . .830, 842, 902 
 
 Brichta v. Simon, 152 App. Div. 832, 137 N. Y. S. 751 1057 
 
 Brickell v. N. Y. C. & H. R. R., 120 N. Y. 290, 24 N. E. 449 778, 780, 785, 797 
 
 Brickell v. Williams, 180 Mo. App. 572, 167 S. W. 607 759, looi 
 
 Brickner v. Kopraier, 133 Wis. 582, 113 N. W. 414 1000, 1006 
 
 Bridge v. Grand Junction Ry., 3 Mees & Welsh 244 223 
 
 Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762, 764 
 
 iS6, 205, 319, 321, 649, 65s, 741, 745, 752, 753, 756 
 
 British Mut. Banking Co. v. Charnwood, Etc., R., 18 Q. B. D. 714 543 
 
 Britton v. Cunningham, 107 Mass. 349 303 
 
 Brock v. Stimson, 108 Mass. 521 346, 371, 378 
 
 Brock v. Travelers Ins. Co., 88 Conn. 308, 91 Atl. 279 193 
 
 Brodbine v. Revere, 182 Mass. 598, 66 N. E. 607 33, 35, 38 
 
 Brommer v. Penn. R. C. (C. C. A. 3d Cir.), 179 Fed. 577, 103 C. C. A. 
 
 135, 29 L. R. A. (N. S.) 924 786, 880, 881 
 
 Brooks V. Hart, 14 N. H. in 711 
 
 Brooks V. Saint Jeanne, 228 U. S. 688, 33 Sup. Ct. Rep. 700, 7 N. C, C. A. 
 
 592 j5oo 
 
 Brooks V. Schwerin, 54 N. Y. 343 819 
 
 Broom & Sons Co. v. Dale & Sons (Miss.), 67 So. 659 415 
 
 Broult V. Hanson, 158 Mass. 17, 18, 32 N. E. 900 638, 758 
 
 Brown v. Boston Ice Co., 178 Mass. 108, 59 N. E. 644 612 
 
 Brown v. Brashear, 22 Cal. App. 135, 133 Pac. 505, 8 N. C. C. A. 585 843 
 
 Brown v. Castles, 11 Cush. 348 5H 
 
 Brown v. Detroit United Ry., 179 Mich. 404, 146 N. W. 278, 7 N. C. C. A. 
 
 410 894, 916 
 
 Ixv 
 
TABLE OF CASieS CITED 
 
 Brown v. Edgington, 2 Man. & Gr. 279, Eng Soo, 504 
 
 Brown v. Foster, 113 Mass. 136 50S 
 
 Brown v. Freeman, 84 N. J. L. 360, 86 Atl. 384, 8 N. C. C. A. 231 251, 559 
 
 Brown v. Kendall, 60 Mass. 29S 651 
 
 Brown v. Mitts, 187 Mich. 469, 153 N. W. 714 301 
 
 Brown v. Moyer, 212 Mass. 382^, 99 N. E. 237 286 
 
 Brown v. Perkins, 83 Mass. 98 9S8 
 
 Brown v. Sayles, 27 Verm. 227 504 
 
 Brown v. State, 4 Ga. App. 505, 81 S. E. 590 348 
 
 Brown v. Thayer, 212 Mass. 392 ; 99 N. E. 237 643, 690, 823, 972, 980, g8l, 997 
 
 Brown v. Thorne, 61 Wash. 18, iii Pac. 1047, i N. C. C. A. 107, 8 N. C. C. 
 
 A. 1081 74S, 76s 
 
 Brown v. Wilmington, 4 Boyce (Del. 492), 90 Atl. 44 
 
 275, 637, 818, 871, 1082, 1083, HOC 
 Bruening v. Metropolitan St. Ry. Co., 180 Mo. App. 434, 168 S. W. 248 
 
 894, 900, go8 
 
 Buchanan v. Crawford, 112 N. Y. App. Div. 278, 98 N. Y. S. 378 iioi, 1108 
 
 Buck V. Commonwealth, 107 Pa. 486, 489 3S6 
 
 Buckley v. Dow Portable Electric Co., 209 Mass. 152; 95 N. E. 222 600 
 
 Buel V. New York Central Railroad, 31 N. Y. 314 72S 
 
 Buffalo (City) v. Lewis, 192 N. Y. 193, 84 N. E. 8og 95, 96, 11 S, 118, 124 
 
 Buford V. Hopewell, 140 Ky. 666, 131 S. W. 502 306, 1088, 1118 
 
 Buick Automobile Co. v. Weaver, Tex. Civ. App., 1914 ; 163 S. W. 594, 6 
 
 N. C. C. A. 366 564, 565, 791 
 
 Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W. 591 
 
 46s, 502, S03, 506, S07 
 
 Buick Motor Co. v. Thompson, 138 Ga. 282 ; 75 S. E. 354 496 
 
 Bunting v. Hogsett, 139 Pa. St. 363, 375, 21 Atl. 31 778 
 
 Burbank v. Robek, 157 Ky. 524, 163 S. W. 457 613 
 
 Burdick v. Worrall, 4 Barb. N. Y. 596 711 
 
 Burger v. Taxicab. Motor Co., 66 Wash. 676, 123 Pac. 519 297, S79, 851 
 
 Burkett v. Lanatta, 15 La. Ann. 337 1117 
 
 Burnham v. Central Auto Exch., 67 Atl. Repr. 429 (R. I.) 564 
 
 Burns, Ex parte, 68 Misc. 299, 125 N. Y. S. 86 358 
 
 Burns v Kendall, 96 S. C. 385, 80 S. E. 621 977, 1014, iiiS 
 
 Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245 632 
 
 Burton v. Monticello & Burnside Turnpike Co., Ky. 173 S. W. 144 8 
 
 Burvant v. Wolfe, 126 La. 787, 52 So. 1025 655, 733, 859, 861, 1123, 1126 
 
 Buscher v. N. Y. Transp. Co., 106 N. Y. App. Div. 493, 495 
 
 294, 324. 656, 760, 829, 833, 856, 857, 859, 862, 865 
 
 Bush v. Fourcher, 3 Ga. App. 43, 48, 59 S. E. 459 392, 410, 468, 1043, 1125 
 
 Bush V. Philadelphia & R. Ry. Co., 232 Pa. 327 ; 81 Atl. 409 877 
 
 Butler V. Butler, 40 S. E. 138, 62 S. C. 165, 177 360 
 
 Butler V. Cabe, Ark. 1915, 171 S. W. 1190, L- R. A. 1915, c. 702 755 
 
 Butolph V. Blust, 41 How. Pr. (N. Y.) 481 378 
 
 Butterfield v. Forrester, 11 East. 60, 61 223, 284, 676 
 
 Ixvi 
 
TABLU Of CASES CITED 
 
 Byerley v. Metropolitan St. Ry. Co., 172 Mo. App. 470, 158 S. W. 413 
 
 673, 679, 731, 784, 908 
 Byrd v. State, Tex. 129 S. W. 620, 59 Tex. Civ. App. 513 318, 323, 326 
 
 Cabanne v. St. Louis Car Co., 156 Mo. 580, 161 S. W. 597 iS9. 160 
 
 Cadillac Motor Car Co. v. Johnson (C. C. A.), 221 Fed. 801, 197 Fed. 485 431, 432 
 Csesar v. Fifth Ave. Stage Co., 45 N. Y. Misc. 331, 90 N. Y. S. 359 
 
 656, 666, 829, 842, 901, 916 
 
 Caffr«y v. Drugan, 144 Mass. 294, 11 N. E. 96 378, 382 
 
 Cahill V. Cincinnati Ry., 92 Ky. 345, 355, 18 S. W. 2 777 
 
 Cain V. Wintersteen, 144 Mo. App. i, 128 S. W. 274 755, looi, 1126 
 
 Calahan v. Moll, 160 Wis. 523, 162 N. W. 179, 152 N. W. 179 296, 768 
 
 Calder v. Kurby, 71 Mass. 597 103 
 
 Callahan v. Bean, 9 Allen (91 Mass.) 401 683, 1008 
 
 Camden & Amboy R. v. Burke, 13 Wend. N. Y. 626 804 
 
 Cameron v. Vandergriff, 53 Ark. 381, 386, 13 S. W. 1092 1098 
 
 Camoys v. Scurr, 9 C. & P. 383 (Eng.) 642 
 
 Campbell v. Arnold, 219 Mass. 160, 106 N. E. 599 542 
 
 Campbell v. Dreher, no S. W. 353 (Ky. 1908) 1030, 1031, 1050, 1051 
 
 Campbell v. St. Louis Transit Co., 121 Mo. App. 406, 99 S. W. 58 
 
 659, 660, 733, 736, 738, 859, 902, 904, gi2, 1032, 1048, 1057 
 
 Campbell v. Walker. 2 Boyce (Del.) 41, 78 Atl. 601 208, 289, 29a, 677, 762, 998 
 
 Canfield v. New York Transf. Co., 128 N. Y. App. Div. 450, 112 N. Y. 
 
 Supp. 854 772, 824, 829 
 
 Canning v. Williamstown, i Cush. 451 1095 
 
 Cannon v. Pittsburgh, Etc., 44 Atl. 1089, 194 Pa. 159 1047 
 
 Capell V. New York Transp. Co., 135 N. Y. S. 691, 150 App. Div. 723 1003 
 
 Card V. Turner Center Dairying Assn., 1916 Mass., 113 N. E. 187 602 
 
 Cardinal, Ex parte, 170 Cal. 219, 150 Pac. 348 812, 814, 815, 816 
 
 Cardozo V. Bloomingdale, 79 Misc. 605, 140 N. Y. S. 377 (N. Y. Sup.) . . 1104 
 
 Carey v. Hubbardston (Inhab.), 172 Mass. 106, 109, 51 N. E. 521 224, 268 
 
 Carey v. Kerkshire Railroad Co., I Cush. 475 (Mass.) 995 
 
 Garfield v. Peerless Motor Car Co., 189 Mass. 395, 75 N. E. 695 487 
 
 Carley v. New York, Etc., R., 16 St. Rep. 307, i N. Y. Supp. 63 647 
 
 Carlisle v. Brisbane, 113 Pa. St. 544, 6 Atl. 372 778 
 
 Carlisle v. Sheldon, 38 Vt. 440, 678, 778 
 
 Carlson v. New York, 134 N. Y. S. 661, 150 App. Div. 264 221 
 
 Carnochan v. Erie R. Co., 130 N. Y. S. 514, 73 Misc. 131, 144 N. Y. S. 
 
 iio8, 159 App. Div. 406, 7 N. C. C. A. 544 885 
 
 Carpenter v. Campbell Autotnobile Co., 159 Iowa 52; 140 N. W. 225; 4 
 
 N. C. C. A. I 689, 726, 727 
 
 Carr v. Easton, 142 Pa. St. 139, 21 Atl. 832 778 
 
 Carrier v. Donovan, 88 Conn. 37, 89 Atl. 894 578, S97 
 
 Carroll v. Minnesota V. R., 14 Minn. 57, 1869 730 
 
 Carsey v. Hawkins, Tex. Civ. App. ; 165 S. W. 64 748, 751, 752 
 
 Carstairs v. Taylor, 6 L. R. Exchq. 217, 222 1053 
 
 Ixvii 
 
TABIvE OF CASBS CiTfiD 
 
 Carter v. Caldwell, Ind. (1916), 109 N. E. 355 75i 
 
 Carter v. Potter, no Maine 545, 86 Atl. 671 763, 1012, 1082, 1083 
 
 Carter v. State, 12 Ga. App. 430, 78 S. E. 205 2, 120, 151, 316, 526, 999 
 
 Carter v. Walker, Tex. Civ. App.; 165 S. W. 483 723, 725 
 
 Cary v. Gruman, 4 Hill 625 514 
 
 Case V. Clark, 83 Conn. 183, 76 Atl. Repr. 518 666, 714, 851 
 
 Case V. Connecticut Co., 85 Conn. 711, 83 Atl. 1020 loio 
 
 Case Threshing Machine Co. v. Webb, Tex. Civ. App. 181 S. W. 853 452 
 
 Casey v. Smith, 152 Mass. 294, 25 N. E. 734 862 
 
 Cass v. Boston & L,. R., 96 Mass. 448, 450 647, 1029 
 
 Cass Farm Co. v. Detroit, 181 |U. S. 396, 21 S. Ct. 644 54 
 
 Cassedy v. Stockbridge, 21 Vt. 394 and 398 871 
 
 Cauf man's Case, 18 Pa. Dist. Reps. 25 318, 361 
 
 Cecchi v. Lindsay, 75 Atl. Repr. 376, i Boyce 185 (Del.) 
 
 187, 267, 268, 271, 623, 6s4> 711, 723, 733, 737, 856, 8S9, 1087 
 
 Cedar Creek Store Co. v. Steadham, 187 Ala. 622, 65 So. 984 857, 860, 1063 
 
 Cedar Rapids Auto Co. v. Jeffrey, 139 Iowa 7, 116 N. W. 1054 . . .454, 465, 466, 490 
 
 Central Bridge v. Butler, 2 Gray 130 638, 1040 
 
 Central Indiana Ry. Co. v. Wishard, Ind. 1914, 104 N. E. 593 129, 880, 890 
 
 Central of Georgia Rj'. Co. v. McKey, 13 Ga. App. z^^, yg S. E. 378 875, 886 
 
 Central R., Etc., v. Smith, 78 Ga. 694, 700 662 
 
 Cent. T. & N. Ry. v. Gibson, 35 Tex. App. 66, 79 S. W. 351 778 
 
 Chadbourne v. Springfield St. Ry., 199 Mass. 574, 85 N. E. 737 ■ -543, 775, 782, 797 
 
 Chamberlain v. Carter, 36 Mass. 190 1018 
 
 Chamberlain v. Southern California Edison Co., 167 Cal. 500; 140 Pac. 
 
 25 ; 6 N. C. C. A. 371 575 
 
 Champlin v. Pawcatuck Valley, Etc., Ry. Co., 33 R. I. 572, 82 Atl. 481, S 
 
 N. C. C. A. 787 903, 1090 
 
 Chandler v. Broughton, 2 h- J. N. S. 1833, Exch. (Pleas) 25 549 
 
 Chandler v. Matheson Co., 208 Mass. 569, 95 N. E. 103 281, 309 
 
 Chanter v. Hopkins, 5 Mees. & Wels. (Eng.) 399, 401 494 
 
 Chapin v. Bridges, 116 Mass. 105 487 
 
 Chapin v. Ocean Accident & Guarantee Co., 96 Neb. 213, 147 N. W. 465, 
 
 S2 L. R. A. N. S. 227 525 
 
 Chaplin v. Hawes, 3 Car. & P. 554 (Eng.) 186 
 
 Chapman v. Strong, 162 Mich. 623; 127 N. W. 741, 8 N. C. C. A. 1088 . . 76s 
 
 Chappell v. United Rys. Co., 174 Mo. App. 126, 156 S. W. 819 
 
 673, 905, 908, 913, 1057 
 
 Chaput V. Haverhill & G. Ry., 194 Mass. 220, 80 N. E. 597 899 
 
 Chase v. New York Central R., 208 Mass. 137, 94 N. E. 377 
 
 66, 717, 718, 876, 889, 1032 
 Chase V. Seattle Taxicab & Transfer Co., 78 Wash. 537, 139 Pac. 499 
 
 310, 832, 846, 1088 
 
 Chase v. Tingdale Bros., 127 Minn. 401, 149 N. W. 634 171 
 
 Cheney v. Barker, 198 Mass. 336, 362, 84 N. E. 492 199 
 
 Chicago V. Banker, 112 111. App. 94 30, in, 117, 118, 198, 205, 230 
 
 Ixviil 
 
TABI<e OP CASES CITED 
 
 Chicago, City of, v. Collins, 175 111. 445, 51 N. E. Repr. 107 31, 73. 75> 96 
 
 Chicago V. Francis, 262 111. 231, 104 N. E. 662 24, 121 
 
 Chicago V. Kluever, 257 111. 317, 100 N. E. 917 122 
 
 Chicago V. Shaw Livery Co., 258 111. 409, loi N. E. S88 118, 174 
 
 Chicago, Etc., V. Gunderson, 174 111. 495, 51 N. E. 708 1070 
 
 Chicago, Etc., R. v. Yorty, 158 111. 321, 325, 42 N. E. 64 630 
 
 Chicago & St. L. & P. R. v. Spilker, 134 Ind. 380, 33 N. E. 280 ' 777 
 
 Chicago, B. & Q. R. v. Clark, 26 Neb. 645, 42 N. W. 703 io6S 
 
 Chicago City Ry. v. O'Donnell, 207 111. 478, 69 N. E. 882 996 
 
 Chicago, R. I. & P. R. v. Sutton, 63 Fed. Repr. 394, 1895 687 
 
 Chittenden v. Columbus (City), 26 Ohio C. C. 531 43, 98, 99, ii9, 120, 127, 902 
 
 Christensen v. Christiansen, Tex. Civ. App., 155 S. W. 99S, 4 N. C. C. A. 
 
 32 SSO, 583 
 
 Christie v. Griggs, 2 Camp 79 (Eng.) 163 
 
 Christy v. Elliott, 216 111. 31, 48, 74 N. E. 1035, 108 Am. St. Rep. 196 
 
 24, 26, 93, 95, 98, 198, 205, 238, 633, 649, 686, 740, 744, 756, 764, 777, 783, loiS 
 
 103s, 1049, 1065, 1083, 1087, 1092, no 
 
 Cincinnati, etc., R. v. Long, 112 Ind. 166, 172, 13 N. E. 659 867 
 
 Cincinnati, Etc., Ry. Co. v. Sweeney, Ky. 1915, 179 S. W. 214 H02 
 
 Cincinnati St. Ry. v. Wright, 54 Ohio St. 181, 193, 43 N. E. 688 778 
 
 Citizens St. Ry. Co. v. Hamer, 20 Ind. App. 426, 436, 62 N. E. 658 867 
 
 Citizens St. Ry. v. Lowe, 12 Ind. App. 47, 54, 39 N. E. 165 749 
 
 City Iron Works v. Barber, 102 Pa. St. 156, 163 512 
 
 Claflin V. Meyer, 75 N. Y. 260, 262 396 
 
 Clark V. Blair, 217 Mass. 179; 104 N. E. 435, 8 N. C. C. A. 384 861 
 
 Clark V. Buckmobile Co., 107 N. Y. App. Div. 120, 94 N. Y. S. 771 582 
 
 Clark V. Commonwealth, 21 Mass. 125 269 
 
 Clark V. Connecticut St. Ry. Co., 83 Conn. 219; 76 Atl. 523 781, 783 
 
 Clark V. General Motor Car Co., 177 Mo. App. 623 ; 160 S. W. 576 . .760, 999, 1014 
 
 Clark V. May, 68 Mass. 410 371 
 
 Clark V. Public Service R. Co., 83 N. J. L 319 ; 83 Atl. 189 789, 912 
 
 Clark V. Van Fleck, 135 Iowa 194, 1907 
 
 274, 70s, 706, 710, 1019, IQ2I, 1043, 1047, 1099 
 Clarke v. Woop, 144 N. Y. S. 595 ; iS9 App. Div. 437 ; 6 N. C. C. A. 314 ; 
 
 8 N. C. C. A. 381 710 
 
 "Clark V. Wright, 167 N. C. 646, 83 S. E. 775 702 
 
 Clay V. Wood, 5 Esp. 44 284, 682, 977 
 
 Cleary v. Johnston, 74 N. J. L. 49. 74 Atl. 538 23, 61, 67, 88, 196, 206 
 
 Cleghorn v. N. Y. Central, Etc., R., 56 N. Y. 44 535, 1115 
 
 Clifton, District of, v. Cummins, 165 Ky. 526, 177 S. W. 432 124 
 
 Cloherty v. Griffiths, 82 Wash. 634, 144 Pac. 912 673, 999, 1089 
 
 Coates v. Canaan, 51 Vt. 131, 137 , . 331 
 
 Coby v. Quincy O & K. C. R. Co., 174 Mo. App. 648, 161 S. W. 290 886, 888 
 
 Codman v. Evans, 87 Mass. 310 1029 
 
 Cody v. New York, Etc., R., 151 Mass. 462, 24 N. E. 402 719 
 
 Ixix 
 
TABLE OF CASES CITED 
 
 Coffin V. l,askau, 89 Conn. 325, 94 Atl. 370, L. R. A. iQisE, 959 
 
 171. IPS. 70s, "02, 1103 
 
 Coggs V. Bernard, i Smith's Leading Cas. 11 ed., p. 173 806, 807 
 
 Cohen v. Borgenecht, 83 Misc. 28, 144 N. Y. S. 399 592 
 
 Colborne v. Detroit United Ry. Co., 177 Mich. 139, 143 N. W. 32, 4 N. C. 
 
 C. A. 383 248, 677, 906, 91S 
 
 Colburn Automobile Co. v. Soper, 56 Colo. 201,. 138 Pac. 34 149 
 
 Cole V. Tucker, 164 Mass. 486, 41 N. E. 681 41 
 
 Cole Motor Car Co. v. Ludorff (Ind. 1916), in N. E. 447 ■ • -20, 726, 826 
 
 Colebank v. Standard Garage Co., 75 W. Va. 389, 84 S. E. 1051 . . . 1039, 1061, 1084 
 
 Coleman v. Minneapolis St. Ry. Co., 113 Minn. 364, 129 N. W. 762 689 
 
 CoUard v. Beach, 81 N. Y. App. Div. 582, 81 N. Y. S. 619 5S8, S9i 
 
 CoUey V. Lewis, 7 Ala. App. 593, 61 So. 37 547, S82 
 
 Collins V. Alabama G. S. R. Co., 61 Am. & Eng. R. R. Cas. 229 (1894) . . 255 
 
 Collins V. Dorchester, 55 Mass. 398 1028 
 
 Collins V. Skillings (Mass. 1916) , 1 12 N. E. 938 464, 467 
 
 Collins V. So. Boston Ry. Co., 142 Mass. 312, 7 N. E. 856 856, 857 
 
 Collins V. Wise, 190 Mass. 206 612 
 
 Colorado M. Ry. v. Robbins, 30 Colo. 449, 71 Pac. 373 1034 
 
 Colorado & S. Ry. v. Thomas, 33 Col. 517, 81 Pac. 801 777 
 
 Colt V. A. F. Demarest & Co., 159 App. Div. 394, 144 N. Y. S. 557 499 
 
 Colwell V. vEtna Bottle & Stopper Co., 33 R. I. 531, 82 Atl. 388, 2 N. C. 
 
 C. A. 430 247, 5SI, 581, loio 
 
 Commercial Claim Assn. Co. v. Lyon (Ga.), 87 S. E. 761, 1916 Si9 
 
 Commercial Union Ins. Co. v. Hill, Tex. Civ. App., 167 S. W. 1095 519, 520 
 
 Com. V. Abbott, 130 Mass. 474 1025 
 
 Com. V. Adams, 114 Mass. 323 312, 347, 348, 925, 926, 927, 943 
 
 Com. V. Allen, 52 Mass. 404 266, 279 
 
 Com. V. Bacon, 24 Mont. Co. (Pa.) L. Reps. 197 1038 
 
 Com. V. Bagley, 24 Mass. 279 375 
 
 Com. V. Beck, 187 Mass. 15, 72 N. E. 357 105 
 
 Com. V. Bell, Penn. 1916, 94 Atl. 746 74 
 
 Com. V. Boston & L. R-, 126 Mass. 61 555 
 
 Com. V. Boston & L. R. R., 134 Mass. 211 991 
 
 Com. V. Boston & M. R., 129 Mass. 500 945 
 
 Com. V. Boyd, 188 Mass. 79, 74 N. E. 255 25, 26, 60, 65, 67, 95, 102, 198, 238 
 
 Com. V. Brelsford, 161 Mass. 63, 36 N. E. 677 338 
 
 Com. V. Brennan, 103 Mass. 70 103 
 
 Com. V. Brothers, 158 Mass. 200, 206, 33 N. E. 386 107, 340 
 
 Com. V. Buxton, 205 Mass. 49, 91 N. E. 128 1031, 1035, 1036, 1044 
 
 Com. V. Carey, 66 Mass. 253 381 
 
 Com. V. Cassidy, 209 Mass. 14, 95 N. E. 214 96, 1040 
 
 Com. V. Chappel, 116 Mass. 7 340 
 
 Com. V. Cheney, 6 Mass. 347 357, ;^yy^ 379^ 381 
 
 Com. V. Clark, 43 Mass. 24 940 
 
 Com. V. Conlin, 184 Mass. 196, 68 N. E. 270 33p 
 
 Ixx 
 
TABLE OF CASES CITED 
 
 Com. V. Cook, 8 Pa. Co. Ct. R. 486 937, 948, 953, 1028 
 
 Com. V. Coughlin, 123 Mass. 437 380 
 
 Com. V. Crowninshield, 187 Mass. 221, ^2, N. E. 963 . ..30,34,35,37, 127, 178, 1041 
 
 Com. V. Danziger, 176 Mass. 290, 57 N. E. 461 40, 41 
 
 Com. V. David, iS Penn. Dist. Reps. 793, 794 352 
 
 Com. V. Davis, 162 Mass. 510, 511, 39 N. E. 113, 26 L. R. A. 712, 44 Am. 
 
 St. Rep. 389 198 
 
 Com. V. Densmore, 29 Pa. Co. Ct. Reps. 217 48, 49, 94, 99, 198 
 
 Com. V. Doherty, 103 Mass. 443 369 
 
 Com., V. Field, 13 Mass. 321 367 
 
 Com. V. Gammons, 40 Mass. 201 268, 270, 271 
 
 Com. V. Gilbert, 165- Mass. 47, 42 N. E. 336 343, 947 
 
 Com. V. Gile, 217 Mass. 18, 104 N. E. 572 116 
 
 Com. V. Goldman, 205 Mass. 400, 91 N. E. 392 4, 803 
 
 Com. V. Gorham, 99 Mass. 420, 422 lo6, 356, 357 
 
 Com. V. Hackett, 84 Mass. 137 703> 952 
 
 Com. V. Hagenlock, 140 Mass. 125, 3 N. E. 36 34" 
 
 Com. V. Hanna, 195 Mass. 262, 264, 81 N. E. 149 20 
 
 Com. V. Hartwell, 128 Mass. 415 932, 973, 978 
 
 Com. V. Hastings, 50 Mass. 259 369, 380, 382 
 
 Com. V. Hawkins, 69 Mass. 466 (3 Gray, 1855) 343 
 
 Com. V. Hawkins, 157 Mass. 551, 32 N. E. 862 
 
 312, 334, 348, 62s, 711, 925, 926, 938, 965, 966, 978 
 
 Com. V. Hawkins, 14 Pa. Dist. Reps. 592 5, 54, 65, 78, 96, 117, 118, 127, 206 
 
 Com. V. Herrick, 60 Mass. 468 339 
 
 Com. V. Horsfall, 213 Mass. 232, 100 N. E. 362, Ann. Cas. 1914, A. 682. .47, 335, 643 
 
 Com. V. Horton, 26 Mass. 207 356 
 
 Com. V. Hughes, 183 Mass. 221, 66 N. E. 716 379 
 
 Com. V. Hunt, 45 Mass. 121 962, 967 
 
 Com. V. Hutchins, 10 Mass. 224 1072 
 
 Com. V. IngersoU, 145 Mass. 381, 14 N. E. 449 356 
 
 Com. V. Irwin, 83 Mass. 587 371 
 
 Com. V. Jenkins, Ky., 166 S. W. 794 437 
 
 Com. V. Juander, 18 Pa. Dist. R. 973 354 
 
 Com. V. Kiley, 150 Mass. 325, 23 N. E. SS 106 
 
 Com. V. King, 13 Met. 115 igp, 267 
 
 Com. V. Kingsbury, 199 Mass. 542, 546, 85 N. E. 848 
 
 26, 34, 37, 38, 49, 93, 196, 207, 2ZJ, 265 
 
 Com. V. Kingsbury, 5 Mass. 107 963 
 
 Com. V. Kingsley, 133 Mass. 578 , 104, 107 
 
 Com. V. Knapp, 26 Mass. 496 958, 1019 
 
 Com. V. Knapp, 27 Mass. 477 931 
 
 Com. V. Kuhn, i Pittsburgh (Pa.) 13 921, 937 
 
 Com. V. Ivivermore, 70 Mass. 20 339 
 
 Com. V. Lockwood, 109 Mass. 323, 325 106 
 
 Com. V. Macloon, loi Mass. 7 952 
 
 Ixxi 
 
TABI,B OF CASES CITED 
 
 Com. V. Maletsky, 203 Mass. 241, 89 N. E. 241 ii4 
 
 Com. V. Malone, 114 Mass. 298 343 
 
 Com. V. Marzynski, 140 Mass. 72, 21 N. E. 228 339 
 
 Com. V. McGahey, ^^ Mass. 194 371. 374 
 
 Com. V. McGrath, 185 Mass. i, 69 N. E. 340 338, 34° 
 
 Com. V. McKie, 67 Mass. 61 910, gi8, 1038 
 
 Com. V. McLaughlin, 66 Mass. 612, 615 379, 3^1, 383 
 
 Com. V. Metropolitan R. Co., 107 Mass. 236 SS5 
 
 Com. V. Mink, 123 Mass. 422 93i 
 
 Com. V. Monihan, 86 Mass. 587 373 
 
 Com. V. Morgan, 149 Mass. 314, 316, 20 N. E. 161 338, 339 
 
 Com. V. Morgan, 159 Mass. 375, 34 N. E. 458 1044 
 
 Com. V. Morris, 176 Mass. 19, 56 N. E. 896 41 
 
 Com. V. Mulhall, 162 Mass. 496, 39 N. E. 183 35 
 
 Com. V. Newhall, 205 Mass. 344, 91 N. E. 206 iiS, 116, 117, 277 
 
 Com. V. Nickerson, 87 Mass. 518 346 
 
 Com. V. Nickolson, 35 Pa. Co. Ct. R. 556 361. 363 
 
 Com. V. O'Connor, 89 Mass. 584 378, 379 
 
 Com. V. Parks, 155 Mass. 531, 30 N. E. 174 41 
 
 Com. V. Parsons, 195 Mass. 560, 81 N. E. 291 312, 334, 343, 348, 925, 929, 966 
 
 Com. V. Peckham, 68 Mass. 515 ; Com. v. Timothy, 74 Mass. 481 339 
 
 Com. V. Pfeiffer, 35 Pa. Co. Ct. Reps. 476 45, 318, 361 
 
 Com. V. Pierce, 138 Mass. 165 
 
 179, 236, 312, 333, 348, 633, 663, 920, 925, 928, 931, 932, 939, 966, 967, 973, 978 
 
 Com. V. Powell, 249 Pa. 144, 94 Atl. 746 100 
 
 Com. V. Presby, 80 Mass. 65, 68 340, 379 
 
 Com. V. Quander, 18 Pa. Dist. Reps. 973 361 
 
 Com. V. Rider, 29 Pa. Super. Ct. 621 349, 940 
 
 Com. V. Roberts, 155 Mass. 281, 29 N. E. 522 41 
 
 Com. V. Rumford Chemical Works, 82 Mass. 231 227 
 
 Com. V. Sherman, 191 Mass. 439, 78 N. E. 98 
 
 - 147, 184, 326, 327, 347, 536, 608, 609, 610, 799, 917, 942> 956, 1037 
 
 Com. V. Sisson, 189 Mass. 247, 75 N. E. 619 35 
 
 Com. V. Snow, 133 Mass. 575 338 
 
 Com. V. Stevens, 155 Mass. 291, 295, 29 N. E. 508 610 
 
 Com. V. Stodder, 2 Cush. (56 Mass.) 562 25, 35, 37, 112, 114, 123 
 
 Com. V. Strauss, igi Mass. 545, 550, 74 N. E. 308 22 
 
 Com. V. Sturtivant, 117 Mass. 122, 134 343, 1019, 1056, 1066, 1069 
 
 Com. V. Teevens, 143 Mass. 210, 9 N. E. 524 607 
 
 Com. V. Temple, 80 Mass. 14 Gray 69, 74 
 
 17, 33, 206, 209, 230, 268, 275, 290, 836, 862, 866, 869, 892, 922, 923, 965, 966 
 
 Com. V. Templeton 22 Mont. Co. (Pa.) Rep. 203 44, 49, 537 
 
 Com, V. Tobin, 108 Mass. 429 367, 368, 371, 380 
 
 Com. V. Tyler, 199 Mass. 490, 85 N. E. 569 34, 37, 38 
 
 Com. V. Walden, 57 Mass. 560 924 
 
 Com. V. Walton, 31 Ky. L. Reps. gi6, 104 S. W. 323 802, 810 
 
 bcxii 
 
TABLE OP CASi;S CITED 
 
 Com. V. Webster, 59 Mass. 320 918, 922, 93o 
 
 Com. V. Whelan, 134 Mass. 210 33^ 
 
 Com. V. Wilmington, 105 Mass. 601 220 
 
 Com. V. Woodhead, 18 Pa. Dist. R. 549 361, 363 
 
 Com. V. Worcester, 20 Mass (3 Pick) 461 127, 926 
 
 Com. V. Wright, 158 Mass. 149, 157, 33 N. E. 82, 35 Am. St. Rep. 475 .372, 378, 379 
 
 Com. V. York, 50 Mass. 103 922, 92S, 93i 
 
 Compton V. Revere, 179 Mass. 413, 60 N. E. 931 219 
 
 Conklin Lumber Co. v. City of Chicago, 127 111. App. 103, 105 6j 
 
 Connecticut Insurance Co. v. Commonwealth, 133 Mass. 161, 163 18, 69, 80 
 
 Conn. Ins. Co. v. Lathrop, iii U. S. 618 1059 
 
 ConoUy v. Crescent City R., 41 La. Ann. 5^, s So. 259, 6 So. 526 996 
 
 Conrad v. Green, N. J. ; 94 Atl. 390 849 
 
 Conrad v. State of Ohio, 75 Ohio St. 52, 78 N. E. 957 964 
 
 Conroy v. Mather, 217 Mass. 91, 104 N. E. 487, 52 L. R. A. N. S. 801, 9 N. 
 
 C. C. A. 837 192, 568 
 
 Consol. Gas Co. v. Getty, 96 Md. 683 ; 54 Atl. 660 777 
 
 Consol. Ice Mach. Co. v. Keifer, 134 111. 481, 492, 25 N. E. 799 777 
 
 Consol. Tr. Co. v. Hoimark, 31 Vroom. 456 (N. J.), 38 Atl. 684 778 
 
 Continental Imp. Co. v. Stead, 95 U. S. 161, 164, 165 874 
 
 Conway v. Town of Jefferson, 46 N. H. 521 5 
 
 Cook V. Ellis, 6 Hill (N. Y.) 466 1119 
 
 Cook V. Packard Motor Car Co., 88 Conn. 590, 92 Atl. 413, L. R. A. 1915 
 
 C. 319 1 104 
 
 Cook V. Story, Wash. 154 Pac. 147, 1916 464 
 
 Cool V. Peterson, 189 Mo. App. 717, 175 S. W. 244 281, 643, 846 
 
 Coombs V. New Bedford, 102 Mass. 596 607 
 
 Cooper V. Knight, Tex. Cir. App. ; 147 S. W. 349 572 
 
 Corcoran v. City of New York, 188 N. Y. 131, 80 N. E. 663 . .205, 214, 219, 221, 223 
 
 Corey v. Havener, 182 Mass. 250, 65 N. E. 69 686, 691, 740, 777, 869 
 
 Corley v. Atchison, T. & S. F. Ry., go Kan. 70, 133 Pac. 555, 4 N. C. C. A. 
 
 22, 381, 6 N. C. C. A. 306 678, 87s 
 
 Coryell v. State, 92 Neb. 482, 138 N. W. 572 154 
 
 Cosulich V. Standard Oil Co., 122 N. Y. 1 18 233 
 
 Cotterill v. Starkey, 8 Car. & P. (Eng.) 694 156, 820 
 
 Cotton V. Wood,8C. B. N. S. (Eng.) 568 167,632,638,829 
 
 Cottrill V. Chicago M. & St. P. R. Co., 47 Wis. 634 187, 730 
 
 Couder v. Griffith, (Ind. 1916), in N. E. 816 283 
 
 Coughtry v. Globe Woolen Co., 56 N. Y. 127, 15 Am. Rep. 387 428 
 
 Counts, Bx parte, Nev. 1915, 153 Pac. 93 812, 815, 816 
 
 Coupal v. Ward, 106 Mass. 289 371 
 
 Cowan v. Muskegon Ry., 84 Mich. 583, 48 N. W. 166 778 
 
 Cowell V. Saperston, 144 App. Div. 3, 134 N. Y. S. 284 283, 546 
 
 Coy V. Landers, 146 Mo. App. 413, 125 S. W. 789 1005 
 
 Craig V. Penn. Ry. Co., 243 Pa. 455 ; 90 Atl. 13S, 6 N. C. C. A. 294, 8 N. 
 
 C. C. A. 1037 883 
 
 bcxiii 
 
TABLit OP CASES CITED 
 
 Crampton v. Ivie Bros., 126 N. C. 894 778 
 
 Crandall v. State of Nevada, 6 Wall. (U. S.) 35 '34 
 
 Crawford v. McElhinney, 171 Iowa 606, 154 N. W. 310 598, 822 
 
 Cream City R. Co. v. Chicago, M. & St. P. Ry., 63 Wis. 93, 98 3 
 
 Creavin v. Newton St. Ry., 176 Mass. 529, 57 N. E. 994 777 
 
 Creeden v. Boston & M. R. R. Co., 79 N. E. 344, 193 Mass. 283 347 
 
 Cresswell v. Wainwright, 154 Iowa 167, 134 N. W. 594 742, 751, 761, loio, 1013 
 
 Crittenden v. Booneville, 45 So. 723, 92 Miss. 277 127 
 
 Croft V. Alison, 4 B. & Aid. 590 543, 570, 584, 590 
 
 Crofts V. Waterhouse, 3 Bing 319 (Eng.) 921 
 
 Crompton v. Williams, 216 Mass. 184, 103 N. E. 298, 9 N. C. C. A. 831 ... 67, 716 
 
 Cuddy V. Horn, 46 Mich. 596, 602, 10 N. W. 32 778 
 
 CuUen V. Thomas, 135 N. Y. S. 22, 150 App. Div. 475 550, 572 
 
 Cumberland Telephone and Telegraph Co. v. Yeiser, 141 Ky. 15, 131 S. 
 
 W. 1049, 31 ly. R. A. N. S. 1137 745 
 
 Cunep V. Freeman, 137 N. Y. S. 885 (N. Y. Sup.), App. Term ; 413 
 
 Cunningham v. Castle, 127 N. Y. App. Div. 580, iii N. Y. Supp. 1057 
 
 245, 423, 528, 545, 560, 567, 572, 574 
 
 Cunningham v. Hall, 86 Mass. 272 423, 424, 447, 500, 618 
 
 Cunningham v. Thief River Falls, 84 Minn. 21, 86 N. W. 763 778 
 
 Cunningham v. Wanamaker, 217 Pa. St. 497 465, 514 
 
 Curley v. Electric Vehicle Co., 68 N. Y. App. Div. 18, 74 N. Y. Supp. 35 
 
 552, 634, 636, 66s, 833, 858, 925 
 
 Curran v. Lorch, 247 Pa. 429, 93 Atl. 492 308, 525, 550, 573, 582 
 
 Curry v. Fleer, 157 N. C. 16; 72 S. E. 626 751.752 
 
 Curtis V. Mills, 5 Car. & P. 489 646 
 
 Cusick V. Kinney, 164 Mich. 25, 128 N. W. 1089 756 
 
 Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351 
 
 207, 247, 591, 592, 594, 596, 743. 761 
 
 Dale V. Denver City Tramway Co., 173 Fed. 787, 97 C. C. A. 511 128, 775, 783 
 
 Daly v. Case, N. J., 95 Atl. 973 297 
 
 Daly V. Curry, 128 Minn. 449, 151 N. W. 274 1064, 1089 
 
 Dalrymple v. Covey Motor Car Co., 55 Or. 533, I35 Pac. 91, 48 1,. R. A. 
 
 N. S. 424, 6 N. C. C. A. 365 565 
 
 Damon v. Boston, 149 Mass. 147, 21 N. E. 235 220 
 
 Damon v. Scituate, 1 19 Mass. 66 281, 288 
 
 Danforth v. Fisher, 75 N. H. in, 71 Atl. 535 245, 531, 539, 580 
 
 Daniels v. Clegg, 28 Mich. 46 711 
 
 Darragh v. EUiotte, C. C. A. 6th cir., 215 Fed. 340 388 
 
 Daugherty v. Metropolitan Motor Car Co., 85 Wash. 105, 147 Pac. 655 . .834, 1047 
 Daugherty v. Thomas, 174 Mich. 371, 140 N. W. 615, 45 L. R. A. N. S. 
 
 699, Ann. Cas. 1915 A. 1163 533, 554 
 
 Davies v. Ang[lo-American Auto Tire Co., 145 N. Y. S. 341, Sup. Ct. T. T. 574 
 Davis V. Bouton Motor Co., no N. Y. S. 359, 126 N. Y. App. Div. 340 . . 251,646 
 Davis V. Bruener Co., 167 Cal. 683, 140 Pac. 586 823, 830, 835 
 
 Izxiv 
 
TABLE OF CASES CITED 
 
 Davis V. Guarnieri, 45 Ohio St. 470, 489, 15 N. E. 350 653, 700 
 
 Davis V. Houghtelin, 33 Neb. 582, 50 N. W. 765, 14 I<. R. A. 737 543 
 
 Davis V. Littltfeld, 97 S. C. 171, 81 S. E. 487, 8 N. C. C. A. 303 593 
 
 Davis V. Maxwell, io8 N. Y. App. Div. 128, 131, 96 N. Y. S. 45 
 
 322, 74i> 747, 7S6, 764 
 
 Davis V. Petrinovich, 21 So. 344, 112 Ala. 654 7 
 
 Davis v. Thornburg, 149 N. C. 233, 62 S. E. 1088 205, 212, 230, 750, 755 
 
 Day V. Duluth St. Ry. Co., 121 Minn. 445, 141 N. W. 795 673, 711, 908, 912 
 
 Day V. Frank, 127 Mass. 497, 498 360 
 
 Day V. Kelly, 50 Mon. 306, 146 Pac. 930 748, looi 
 
 Day V. Woodworth, 13 How. 362 361 
 
 Dealey v. Muller, 149 Mass. 432, 21 N. E. 762 862 
 
 Dean v. Boston Elevated Ry. Co., 217 Mass. 495; 105 N. E. 616, 9 N. C. 
 
 C. A. 833 717, 718 
 
 Dean v. Penn. R., 129 Pa. St. 514, 520, 18 Atl. 718 778 
 
 Dean v. Sharon (Town) , 72 Conn. 667 217 
 
 Decou V. Dexheimer, 73 Atl. Repr. 49 (N. J.) 284, 308 
 
 Deisenrieter v. Kraus, 97 Wis. 279, 72 N. W. 735 694 
 
 Delano v. La Bounty, 62 Wash. 595, 114 Pac. 434 149 
 
 Delaware, Etc., R. v. Converse, 139 lU. S. 469, 472 635 
 
 Del. L. & W. R. v. Devore, 114 Fed. Repr. 155, N. Y 779 
 
 Delfs V. Dunshee, 143 Iowa 381, 122 N. W. Repr. 236 
 
 208, 268, 278, 280, 286, 303, 649, 654, 764 
 
 Delory v. Blodgett, 185 Mass. 126, 129, 69 N. E. 1078 561 
 
 Deming v. Johnson, 69 Atl! 347, 80 Conn. 553 399, 402, 404 
 
 Denker Transfer Co. v. Pugh, 162 Ky. 818, 173, S. W. 139, 8 N. C. C. A. 
 
 723 804 
 
 Denny v. Strauss, 109 N. Y. Supp. 26 302, 304, 706 
 
 Denton v. Missouri K. & T. Ry. Co., 4 N. C. C. A. 381, 133 Pac. 558, 90 
 
 Kan. si 679, 876 
 
 Denver City Tran. Co. v. Norton, 141 Fed. Repr. 599, 609, Col 779 
 
 Denver Tramway Co. v. Reid, 4 Col. App. 53, 63, 35 Pac. 269 iioo 
 
 Deputy V. Kimmel, 73 W. Va. 595, 80 S. E. 919, Si L. R. A. N. S. 989, 8 
 
 N. C. C. A. 369 206, 273, 296, 642, 831, 837, 847, 856, 1003, 1046 
 
 Desch V. Lehigh County, 231 Pa. 511, 80 Atl. 992 1009 
 
 Detroit R. Co. v. Van Steinburg, 17 Mich. 99 (1878) 1035, 1062, 1069 
 
 Devo V. N. Y. C. R., 34 N. Y. 10, II 646 
 
 Dexter v. Campbell, 137 Mass. 198 487 
 
 Dexter v. McCready, 54 Conn. 171, 174, 5 Atl. 855 657 
 
 Diamond v. Cowles, 174 Fed. Repr. 571 (Pa.), 98 C. C. A. 417 823, 867 
 
 Diamond v. Sternberg Motor Truck Co., 149 N. Y. S. 1000, 87 Misc. 305 569 
 
 Dickey, Bx parte, W. Va., 85 S. E. 781 812, 815, 816 
 
 Dickinson v. Erie R. Co., 81 N. J. h- 464; 81 Atl. 104 37 L. R. A. N. S. 
 
 ISO, 6 N. C. C. A. 293 883, 886 
 
 Dickinson v. Gay, 7 Allen 29 505 
 
 Dickson v. Mo. Pac. Ry., 104 Mo. 491, 504, 16 S. W. 381 778 
 
 Ixxv 
 
TABtE OF CASES CITED 
 
 Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S. W. 1 143, 33 L. R. 
 
 A. N. S. 216 V ion 
 
 Dillon V. Mundet, 14s N. Y. S. 975. I9i4 App. Term 1 103 
 
 District of Columbia v. Pickling, 33 D. C. App. 371 4, 802 
 
 District of Columbia v. Weston, 23 D. C App. 363 261 
 
 Dixon V. Tyree, 92 Kan. 127, 139 Pac. 1026 613 
 
 Dochterraann Van & Express Co. v. Fiss, Doerr & Carroll Horse Co., 1 55 
 
 App. Div. 162, 140 N. Y. S. 72 468 
 
 Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677 
 
 205, 200, 207, 211, 212, 214, 220, 230, 716, 718, 803, 1039, 1041 
 
 Doherty v. Waltham, 70 Mass. S97 219 
 
 Domke v. Gunning, 62 Wash. 629, 114 Pac. 43O 299, 819 
 
 Donahue v. Wabash St. L. & P. R., 83 Mo. 560 730 
 
 Donnelly v. Poliakoff, 79 Misc. 250, 139 N. Y. S. 999 (N. Y. Sup.) 1105 
 
 Donohoe v. Shedd, 49 Mass. 326 371 
 
 Donovan v. Laing, Etc., Syndicate, i Q. B. L. R. 629, 1893 560 
 
 Donovan v. Lambert, 139 111. App. 532 711, 753, 755 
 
 Donovan v. Lynn & B. Railroad, 185 Mass. 533, 535 904 
 
 Doody V. Collins, (Mass. 1916), in N. E. 897 413 
 
 Doran v. Thomsen, 74 N. J. h. 445, 66 Atl. Repr. 897 145, 536, 544, 590 
 
 Dorset v. Chambers, 187 Mo. App. 276, 173 S. W. 725 1091 
 
 Douglass V. Hewson, 142 App. D. 166; 127 N. Y. S. 220 579 
 
 Dow V. Bullfinch, 192 Mass. 285, 78 N. E. 416 1031 
 
 Dozier v. Farriar, 187 Ala. 181, 67, So. 283 835, 846 
 
 Dreier v. McDermott, 157 Iowa 726, 141 N. W. 315, 50 1,. R. A. N. S. 566, 
 
 8 N. C. C. A. 1082 766 
 
 Dresser v. Wichita, 96 Kan. 820, 153 Pac. 1194 812, 813 
 
 Drexel v. Hollander, 112 N. Y. App. Div. 25, 98 N. Y. S. 104 439, loii 
 
 Drinkwater v. Dinsmore, 80 N, Y. 390 nil 
 
 DriscoU V. Fall River, 163 Mass. 105, 107, 89 N. E. 1003 540 
 
 Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922 560 
 
 DriscoU V. West End St. Ry., 159 Mass. 146, 34 N. E. 171 271,293,869,904 
 
 Drummond v. Humphreys, 39 Me. 347 486 
 
 Du Cros V. Lambourne, 76 L. J. N. S. (K. B.) 50 326, 327, 536, 942, 956 
 
 Dudley v. Kingsbury, 199 Mass. 258, 8S N. E. 76 636, 666, 916 
 
 Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N. E. 25 . .136, 716, 717, 792 
 
 Dugan V. Arthurs, 230 Pa. St. 299, 79 Atl. 626, 34 L. R. A. N. S. 778 1063 
 
 Dugan V. Lyon, 41 Pa. Super. 52, 1909 834, 842 
 
 DuUberger v. Gimbel Bros., 76 Misc. 225, 134 N. Y. S. 574 1054 
 
 Dultz V. Fischlowitz, 104 N. Y. Supp. 357, App. Term .' 639, 862, 1037 
 
 Duluth V. Easterly, 115 Minn. 64, 131 N. W. 791 207 
 
 Dunbar v. Jones, 87 Conn. 253 ; 87 Atl. 787 655, 71T, 1036, 1091, 1115 
 
 Dunham v. Trustees of Rochester, 5 Cowen (N. Y.) 466 123 
 
 Dunn V. The People, 29 N. Y. 523, 527, Denio, C. J 955 
 
 Durham v. Strauss, 38 Pa. Super. Ct. 620 573 
 
 Ixxvi 
 
TABI,E OF CASES CITED 
 
 Dushane v. Benedict, 120 U. S. 630, 7 S. Ct. 696 497 
 
 Ehival V. Atlantic Coast Line R., 134 N. C. 331, 46 S. E. 750 778 
 
 Dyer v. Erie Ry., 71 N. Y. 228 778 
 
 E. M. F. Co. V. Davis, 146 Ky. 231, 142 S. W. 391 464. SiS, ioS7 
 
 Earheart v. Youngblood, 27 Pa. St. 332 646 
 
 Earing v. Lansingh (N. Y.), 7 Wend. 185, 187 269 
 
 Earle v. Pardington, 116 N. Y. Supp. 675, 1909 278 
 
 East V. Auburn, 47 Ind. A. 530; 94 N. E. 895 642, 1003, 1004, 1126 
 
 East Tennessee Telephone Co. v. Cook, 155 Ky. 649, 160 S. W. 166 751 
 
 Eastern Mfg. Co. v. Thomas, Sheriff, 82 S. C. 509, 64 S. E. Repr. 401 .. . 7 
 
 Eastman v. Clackamas, 32 Fed. Repr. 24, 35, Ore. Cir. 1887 mo 
 
 Eaton V. Boston & L. R-, 93 Mass. goo 700 
 
 Eberhardt v. Glasgow Telephone Co. Mut. Tel. Assn., 91 Kan. 763, 139 
 
 Pac. 416 752 
 
 Eckert V. Long Island Railroad, 43 N. Y. 502 728, 730 
 
 Edgar V. Breck, 172 Mass. 581, 52 N. E. 1083 497 
 
 Edgewood Highlands Land Co. v. McFerren, Ala. 63 So. 157, 159 463 
 
 Edwards v. Worcester, 172 Mass. IDS, 61 N. E. 447 343 
 
 Eichman v. Buchheit, 128 Wis. 385, 107 N. W. 325 
 
 117, 119, 29s, 638, 649, 694, 696, 70s, 748, 7S6, 1032 
 
 Eisenman v. Griffith, 181 Mo. App. 183, 167 S. W. 1142 272, 1023 
 
 Elder V. Federal Ins. Co., 213 Mass. 560 ; 100 N. E. 655 520 
 
 Elenz V. Conrad, 123 Iowa 522, 99 N. W. 138 290 
 
 Elgin Dairy Co. v. Shepherd, Ind. 191S, 108 N. E. 234 294, 300, 641, 654, 667 
 
 Elkin V. Buschner, 16 Atl. 102 (Pa. Sup. 1889) 339, 341 
 
 Elkins V. Boston & M. R., 23 N. H. 27S, 284 804 
 
 Elkins V. McKean, 79 Pa. St. 493 429 
 
 Elliott V. Hayden, 104 Mass. 180 686 
 
 Ellis V. Frazier, 38 Or. 462, 63 Pac. 642 59 
 
 Ellis V. Lynn & Boston R. Co., 160 Mass. 341, 35 N. E. 1127 741 
 
 Ellsworth V. Jarvis, 92 Kan. 895, 141 Pac. 1135 746, 748, 765 
 
 Elyton Land Co. v. Mingea, 89 Ala. 521, 528, 7 So. 666 ^^^ 
 
 Emens v. Lehigh Valley R. Co. (Dist. Ct. N. Y.), 223 Fed. 810 674, 883 
 
 Emerson, Etc., Co. v. Pearson, 74 N. H. 22, 64 Atl. 582 
 
 28, 49, 6s, 66, 86, 179, 207, 241, 424, 741, 742 
 
 Emmons v. Westfield Bank, 97 Mass. 243 1036 
 
 Engel V. Milwaukee, 158 Wis. 480, 149 S. W. 141 546 
 
 England v. Southwest Mo. R. Co., Mo. App. 1916, 180 S. W. 32 907, 911, looi 
 
 Englehart v. Farrant (1897), i Q. B. 240 558 
 
 Enstrom v. Neumoegen, 126 N. Y. S. 660 771 
 
 Erd V. St. Paul (City), 22 Minn. 443 223, 225, 618 
 
 Erjauschek v. Kramer, 141 App. Div. 545, 126 N. Y. S. 289 600 
 
 Erlick V. Heis, (Ala.) 1916 ; 69 So. 530 591 
 
 Erwin V. Shell, 119 Minn. 496, 138 N. W. 691 279 
 
 Buropa, 2 Eng. Law and Eq. 559 950 
 
 Ixxvii 
 
TABLE 0^ CASES CITED 
 
 "European, The," lO L- R. Prob. Div. (Eng.) 102 IS6, 402 
 
 Evans V. Dyk€ Automobile Co., 121 Mo. App. 266, loi S. W. 1132 .472, 47s, 476, 582 
 
 Evans V. Foss, 194 Mass. 513, 80 N. E. 587 • •• 42o 
 
 Evans V. Lake Erie & W. Ry., 78 Fed. Repr. 782, Ind 779 
 
 Evans V. St. Louis, i M. & S. R., 11 Mo. App. 463 996 
 
 Evansen v. Lexington & B. St. Ry., 187 Mass. 77, 72 N. E. 355 m 
 
 Evansville & C. R. v. Hiatt, 17 Ind. 102, 1861 730 
 
 Everart v. Fischer, 75 Oregon 3i6, 145 Pac. 33 117, 307. 658 
 
 Everett v. Los Angeles Ry., 1 15 Cal. 105, 43 Pac. 207, 46 Pac. 889 733 
 
 Ewing V. Arctic Ice Cream Co., Iowa, 147 N. W. 294 557 
 
 Ewing V. Pittsburg, Etc., Rj^ 147 Pa. St. 40, 23 Atl. 340 1096 
 
 Eyston V. Studd, 2 Plow. 465 (Eng.) 342 
 
 F. Bimel Co. v. Harter, 50 Ind. App. 347, 98 N. E. 360 831 
 
 Faber v. St. Paul M. & M. R. Co., 29 Minn. 465 130, looi 
 
 Fahrney v. O'Donnell, 107 111. App. 608 711 
 
 Fairchild v. Fleming, 125 Minn. 431, 147 N. W. 434 301, 324, 1004 
 
 Fales V. Dearborn, 18 Mass. 345 294 
 
 Farley v. Wilmington & N. E. R., 3 Pen. (Del.) 581, 52 Atl. 543 777 
 
 Farmer v. New York, N. H. & H. R., 217 Mass. 158; 104 N. E. 492 888, 1031 
 
 Pamsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233 246, 673, 894, 908 
 
 Feasel v. State of Ohio, 6 Ohio Nisi Prius, N. S. 321, 1908 18, 42, 48, 96 
 
 Featherstone v. The People, 62 N. E. 684, 104 111. 325, 334 358 
 
 Federal Rubber Co. v. King, 11 Ga. App. 769, 76 S. E. 104 440, 47i. 482, 499 
 
 Feehan v. Slater (Conn. 1916) ; 96 Atl. 159 707 
 
 Feeley v. City of Melrose, 205 Mass. 329, 91 N. E. 306 loi, 716, 718, 783, 792 
 
 Feeney v. Wabash R., 123 Mo. App. 427, 99 S. W. 477.321, 335, 622, 648, 697, 721, 74i 
 
 Fenn v. Clark, 11 Cal. App. 79, 103 Pac. 944 306, 694, 707, 711, 714 
 
 Fenneman v. Holden, 73 Md. i, 22 Atl. 1049 866 
 
 Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406 149, 150, 55i, 552, 1022 
 
 Fidelity & Deposit Co. v. Industrial Accident Commission, 171 Cal. 28, 154 
 
 Pac. 834 601 
 
 Field V. New York Central R., 32 N. Y. 344 163 
 
 Field V. People, 4 111. 79, 83 14, 18 
 
 Field V. Thompson, 119 Mass. 150 823 
 
 Fielder v. Davison, 139 Ga. 509, 77 S. E. 618 247, 552, 571, 574 
 
 Fields V. Sevier, 184 Mo. App. 685, 171 S. W. 610 744, 745, 747 
 
 Fifth Avenue Coach Co. v. New York, ^21 U. S. 467, 31 Sup. Ct. 709 . . . 807 
 
 Fifth Ave. Coach Co. v. State, 131 N. Y. S. 62 57 
 
 Finnick v. Boston & N. St. Ry., 190 Mass. 386, 77 N. E. 500 904 
 
 Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. 
 
 R. A. N. S. 314. Ann. Cas. 1913 E. 822 390, 392 
 
 Fish V. Chapman, 2 Ga. 356 949 
 
 Fisher v. McGrath, 112 Minn. 456, 128 N. W. S79 762 
 
 Fisher v. Union Ry. Co., 86 N. Y. App. Div. 366, 83 N. Y. S. 694 1070 
 
 Fisher Motor Car Co. v. Seymour, 9 Ga. App. 493, 71 S. E. 764 1063 
 
 Ixxviii 
 
TABLE OF CASES CITED 
 
 Fitzgerald v. Boston & Northern St. Ry. Co., 214 Mass. 438, loi N. E. 
 
 io8s S78, 709 
 
 Fitzgerald v. Russell, 140 N. Y. S. 519, ISS App. Div. 854 54^, 839 
 
 Fitzjarrel v. Boyd, 123 Md. 497, 91 Atl. 547 794. 795 
 
 Fitzpatrick v. Great West. Ry., 12 ,17. C. Q. B. 645 1096 
 
 Flack V. Metropolitan St. Ry. Co., 162 Mo. App. 650, 145 S. W. no 910, 9I3 
 
 Flagg V. Hudson, 142 Mass. 280, 8 N. E. 42 200, 220, 1049,1051 
 
 Flanders Motor Co. v. Reed (C. C. A. First Cir), 220 Fed. 642 47i 
 
 Flannery v. Interurban Ry. Co., Iowa 153 N. W. 1027, 171 Iowa 238 .... 907, 914 
 
 Flannigan v. Nash, 190 Mo. App. 578, 176 S. W. 248 1014 
 
 Fleiscliner v. Durgin, 207 Mass. 435, 93 N. E. 801, 33 L. R. A. N. S. 79 . . 577 
 
 Fletcher v. Dixon, 107 Md. 420, 68, Atl. 875 . .23, 164, 168, 196, 207, 208, 271, 617, 620 
 
 636, 649, 656, 741, 742, 743, 745. 748. 755. 757. 1030, 1032, 1044, 1059, io74, 1083 
 
 Fletcher v. Peck, 6 Cranch (U. S. S. C.) 87 i3 
 
 Fletcher v. Rylands, L. R. 3 H. L. 330, i Eng. Rul. Cas. 236 254 
 
 Flint V. Russell, 5 Dill (U. S.), 151 Fed. Cas. No. 4876 417, 4i8, 419 
 
 Florman v. School District, 6 Col. App. 319, 321, 40 Pac. 469 146 
 
 Flower v. Adam, 2 Young (Eng.) 315 179, 651 
 
 Flynn v. Butler, 75 N. E. Repr. 730 255 
 
 Fogg V. New York, N. H. & H. R., 223 Mass. 444, m N. E. 960 881, 882 
 
 Foley V. Forty-Second St. R. Co., 97 N. Y. Supp. 958, 49 Misc. 649 
 
 278, 637, 656, 899, 900, 902, 1 104 
 
 Foley V. Pette, 149 Mass. 294, 29 N. E. 304 607 
 
 Follmer v. Pennsylvania R. Co. (Pa.), 246 Pa. St. 367, 92 Atl. 340, 8 N. C. 
 
 C. A. 1036 882 
 
 Fonsler v. Atlantic City, 70 N. J. Law 125, 56 Atl. 119 iii, 122, 810 
 
 Forbes v. Reinraan, 112 Ark. 417, 166 S. W. 563, 51 L. R. A. N. S. 1164. 
 
 6 N. C. C. A. 367 399, 569 
 
 Ford V. Breen, 173 Mass. 52, 53 N. E. 136 339, 365, 37i 
 
 Ford Motor Co. v. Osburn, 140 111. App. 633, 1908 
 
 387, 390, 395, 396, 440. 499, 502, 503 
 
 Ford Motor Co. v. Wilson (Cir. Ct. R. 4), 223 Fed. 808 437 
 
 Forgy V. Rutledge, 167 Ky. 182, 180 S. W. 90 151, 194, 760, 1090 
 
 Fort Smith v. Scruggs, 70 Ark. 549, 553, 69 S. W. 679 197 
 
 Ft. Smith K. Co. v. Seran, 44 Okl. 169, 143 Pac. 1141 878, 887 
 
 Foster v. Curtis, 213 Mass. 79, 99 N. E. 961, 42 L,. R. N. S. 188 (note), 
 
 Ann. 7, Cas. 1913, E. 1116 286, 289, 826, 836 
 
 Foster V. Kansas, 112 U. S. 206 338 
 
 Fowkes V. Case Threshing Mach. Co. (Utah 1915), 151 Pac. 53 
 
 287, 288, 320, 566, 1061 
 
 Fox V. Barekman, 178 Ind. 572, gg N. E. 989 I59, 162, 713, 1047, 1071 
 
 Fox V. Clastonbury, 29 Conn. 204 855 
 
 Fox V. The State of Ohio, 5 How. Reps. (U. S. S. Ct.) 410, 420 .357, 822, 827, 836 
 
 Francis v. Atlantic City Gas Co., 83 N. J. L. 404, 85 Atl. 232 826 
 
 Francis v. Gaffey, 21 1 N. Y. 47, 105 N. E. 96 216, 226 
 
 Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890 851 
 
 Ixxix 
 vi 
 
TABLE 01? CASBS CITBD 
 
 Frankel v. Norris (Penn. 1916), 97 Atl. 104 701 
 
 Fredericksen v. Locomobile Co., iil N. W. Repr. 845 473, 488 
 
 Freibaura v. Brady, 128 N. Y. S. 121, 143 App. Div. 220 SSO, 571 
 
 French v. Bancroft, 42 Mass. 504 370 
 
 French v. Pullman Motor Car Co., 242 Pa. 136, 88 Atl. 876 471, 1109 
 
 French v. Vining, 102 Mass. 132, 135 500 
 
 Frey v. Rhode Island Co., 37 R. I. 96, 91 Atl. i 905, loio 
 
 Frisbie v. Columbus, 80 Ohio St. 686, 89 N. E. 92 125 
 
 Frost V. Josselyn, 180 Mass. 389, 62 N. E. 469 853 
 
 Frostburg v. Kitchens, 68 Md. 100 or 6 Am. St. Rep. 422 256 
 
 Fuller V. Inman, Ga. 74 S. E. 287 990, 999, 1002, 1003, 1004 
 
 Fulton Bank v. Mathers, 161 Iowa 634, 143 N. W. 400 467, 1021 
 
 Funeral Directors Assn. v. Box, 154 Ky. 457, 157 S. W. 922 ." 148 
 
 Furtado v. Bird, Cal. App. 1915, 146 Pac. 58 757, 761, 86g 
 
 Gadbois v. Bay State St. Ry. Co., 216 Mass. 188, 103 N. E. 294 894, 909 
 
 Gaffey v. St. Paul Fire and Marine Co., 164 App. Div. 381, 149 N. Y. S. 
 
 859 S19 
 
 Gage V. Atchison T. & S. F. Ry., 91 Kan. 253, 137 Pac. 938 884 
 
 Gage V. Boston & Maine R. R., ^^ N. H. 289, 90 Atl. 855, L. R. A. 1915, 
 
 A. 363, 8 N. C. C. A. 1043 887 
 
 Gage V. Callanan, 57 Misc. 479, 109 N. Y. Supp. 844 191, 406, 407, 412, 414 
 
 Gagnier v. City of Fargo, 1 1 N. Dak. 73, 88 N. W. 1030 S 
 
 Gahagan v. Boston & L. R., 83 Mass. 187 634 
 
 Gainey v. Parkman, 100 Mass. 318 371 
 
 Galbraith v. West End St. Ry., 165 Mass. 572, 43 N. E. 501 250, 971, 992 
 
 Galena, Etc., R. v. Yarwood, 17 111. 509 720 
 
 Galveston, Etc., R. v. Wesch, 21 S. W. 63 (Tex. Sup. 1893) 1060, 1064 
 
 Gal. H. & S. A. Ry. v. Kutac, 72 Tex. 643, 652, 11 S. W. 127 778, 786 
 
 Gambell v. Minneapolis, St. P. & S. S. M. Ry. Co., 129 Minn. 262, 152 N. 
 
 W. 408 886 
 
 Gangawer v. Phila., Etc., R. R., 168 Pa. St. 265, 32 Atl. 21 1062 
 
 Gannon v. N. Y., Etc., R., 173 Mass. 40, 52 N. E. 1075 720 
 
 Garfield v. Hartford, Etc., Ry., 80 Conn. 260 Atl. 890 
 
 31S, 321, 331, ^Z7, 647, 698, 699, 902, 912, 91S, 1026 
 Garfield v. Peerless Motor Car Co., 189 Mass. 395, 75 N. E. 695 
 
 440,479,482,488,489 
 
 Garman v. Bangor (Inhab.), 38 Me. 443 214, 221, 223 
 
 Garrett v. People's Ry. Co., 6 Pennew. 29 (Del.), 64 Atl. 254 
 
 180, 823, 894, 902, 904, 90s, 1087 
 
 Garrett v. Werner, 235 Pa. 383, 84 Atl. 354 , 48 
 
 Garrigan v. Berry, 94 Mass. 84 293 
 
 Garside v. N. Y. Transp. Co., 146 Fed. Repr. 588, C. C. 1906 
 
 654. 659, 719, 723. 724. 738, 823, 829, 842, 902, loss 
 
 Garver Adm'r. v. Hawkeye Ins. Co., 69 Iowa 202 14S 
 
 Garvey v. Long Island Railway Co., 159 N. Y. 323, 32 Law. Ed. 920 255 
 
 Ixxx 
 
TABLE OP CASES CITED 
 
 Gary v. Geisel, 58 Ind. App. 618, 108 N. E. 876 225, 790 
 
 Gaskins v. Hancock, 156 N. C. 56, 72 S. E. 80, i N. C. C. A. loi . .231, 744, 764, 1115 
 Gassenheimer v. Dist. of Columbia, 26 App. D. C. S57, 2d Case ; also 25 
 
 App. D. C. 179 8, 303, 811 
 
 Gassonade County v. Gordon, 241 Mo. 569, 145 S. W. 1160 96 
 
 Gavett V. Manchester & L. R., 82 Mass. 501 634 
 
 Gavigan v. Refining Co., 186 Pa. St. 604, 40 Atl. 834 260, 417 
 
 Gaynor v. Old Colony, Etc., R., 100 Mass. 211 67s, 1017, 1041 
 
 Gedroice v. New York, 109 N. Y. App. Div. 176, 95 N. Y. S. 645 221 
 
 Georgia Pac. R. v. Lee, 92 Ala. 262, 269, 9 So. 230 332 
 
 Geise V. Mercer Bottling Co., 87 N. J. L. 224, 94 Atl. 24 216, 226, 691 
 
 Geiss V. Twin City Taxicab Co., 120 Minn. 368, 139 N. W. 611, 45 L. R. A. 
 
 N. S. 382 575 
 
 General Repair Co. v. Price, 123 App. Div. 789, iiS N. Y. Supp. 171 .190, 406, 1019 
 
 George v. Haverhill, no Mass. 506 214 
 
 George v. McManus, 27 Cal. App. 414, 150 Pac. 73 706 
 
 Georgia Pacific R. v. Lee, 92 Ala. 262, 269 663, 664, 882, 976 
 
 Geren v. HoUenbeck, 66 Oregon 104, 132 Pac. 1164 390, 614 
 
 Gerhard v. Ford Motor Co., 155 Mich. 618, 119 N. W. 904, 20 L. R. A. N. 
 
 S. 232 t 836 
 
 Gerretson v. Rambler Garage Co., 149 Wis. 528, 136 N. W. 186, 40 L. R. A. 
 
 N. S. 457, 6 N. C. C. A. 368 399, 528, 568 
 
 Gershel v. White's Exp. Co., 113 N. Y. Supp. 919 S48 
 
 Gibbons v. Allen, 135 Mass. 333, 335 683 
 
 Gibbons v. Williams, 138 Mass. 335 857 
 
 Gibbs V. Dayton, 166 Mich. 263, 131 N. W. 544 674, 769, 1003 
 
 Gibson V. Dupree, 20 Colo. App. 324, 144 Pac. 1133 572, 577, 587 
 
 Gibson v. Georgia Life Ins. Co. (Ga.), 86 S. E. 33S 522 
 
 Gifford V. Jennings, 190 Mass. 55, 76 N. E. 233 285, 287, 649, 740, 742, 755, 761 
 
 Gile V. Interstate Motor Car Co., 27 N. D. 108, 145 N. W. 732, L. R. A. 
 
 1915 B 109 (note) 475 
 
 Giles V. Ternes, 93 Kans. 435, 143 Pac. 491 288, 306 
 
 Gill V. Rochester & P. R., z^ Hun. 107 (N. Y.) 996 
 
 Gillam V. Hogue, 39 Pa. Super. Ct. 547 753, 1097, noS 
 
 Gillet V Shaw, 117 Md. 508, 83 Atl. 394 557 
 
 Gillet V. Western R. Corp., 90 Mass. 560 1107 
 
 Gilman v. Deerfield, 81 Mass. 577 634 
 
 Gilman v. Eastern R. Co., 95 Mass. 433, 444 541 
 
 Gfngman v. Campbell, 80 Wash. 543, 141 Pac. 1031 598 
 
 Ginter v. O'Donoghue, Mo. App., 179 S. W. 732 830, 848 
 
 Giozza V. Tiernan, 148 U. S. 657, 662, 13 S. Ct. 721 41, 54, 80, 135 
 
 Gipe V. Lynch, 158 Iowa 627, 136 N. W. 714 307, 754 
 
 Gittings V. Schenuit, 122 Md. 282, 90 Atl. 51 297, 308, 766 
 
 Glassman v. Harry, 182 Mo. App. 304, 170 S. W. 403 550, 582 
 
 Click V. Cumberland & W. Elec. Ry. Co., 124 Md. 308, 92 Atl. 778, 8 N. 
 
 C. C. A. 1035 879 
 
 Ixxxi 
 
TABI,E Ot CASES CITBD 
 
 Gnecco v. Pedersen, 151 N. Y. S. 105, 154 N. Y. S. 12, 165 App. Div. 235- 767,83s 
 
 Goddard, petitioner, 16 Pick. 504 4i 
 
 Godman v Meixsel, 65 Ind. 32 486 
 
 Golding V. White, 63 Fla. 298, 58 So. 367 822 
 
 Goldsboro v. Central R. Co., 60 N. J. Law 49, 37 Atl. 433 1044 
 
 Goodes V. Lansing, Etc., Traction Co., 150 Mich. 494, 114 N. W. 338 1043, 1123 
 
 Goodman v. Bauer (Ind. 1916), iii N. E. 315 299, 734 
 
 Goodman v Wilson, 129 Tenn. 464, 166 S. W. 752, 51 L. R. A. N. S. Iii6, 
 
 6 N. C. C. A. 370 247, SS7 
 
 Goodrich v. Musgrave Fence & Auto. Co., 154 Iowa 637, 13S N. W. 58. . . 566 
 
 Goodwin V. Holmes, 87 Vt. 447, 89 Atl. 742 1023 
 
 Goodwin V. State, 63 Tex. Civ. App. 340, 138 S. W. 399 313. 337 
 
 Goosen v. Packard Motor Car Co., 174 Mich. 654, 140 N. W. 947 768 
 
 Gosselink v. Campbell, 4 Iowa 296, 300 3S9 
 
 Gouin V. Ryder (R. I. 1915) , 94 Atl. 670 1021 
 
 Gould V. Brock, 221 Pa. St. 38, 69 Atl. 1122 552 
 
 Gould V. Elder, 219 Mass. 396, 107 N. E. 59 SSi 
 
 Gould V. McKenna, 86 Pa. St. 297, 302 669 
 
 Gould V. Stein, 149 Mass. 570, 22 N. E. 47 497 
 
 Graham v. Hagmann, 270 111. 252, no N. E. 337 789, 826, 828 
 
 Graham v. Insurance Co., 220 Mass. 230 ; 107 N. E. 91S S20 
 
 Graham v. Sly, 177 Mo. App. 348 ; 164 S. W. 136 673, 750, looi, lOio 
 
 Grand Rapids, Etc., v. Huntley, 38 Mich. 540 lOSS, 1062, 1064 
 
 Grand Rapids (City) v. Braudy, 105 Mich. 670, 678 103 
 
 Grand Trunk R. v. Ives, 144 U. S. 408, 429, 12 S. Ct. 679 657, 873 
 
 Grand Trunk R. Co. v. Jennings, 13 App. Cas. 800 S26, 1124 
 
 Granger v. Farrant, 179 Mich. 19, 146 N. W. 218, 51 L. R. A. N. S. 453 
 
 288,677,1103 
 Grant v. Armstrong, et al., 55 Wash. 365, 104 Pac. Repr. 632 
 
 694, 696, 703, 749, 793 
 
 Grant Bros. Auto. Co. v. Cotter, Mich. 126 N. W. 839 416 
 
 Gray v. Batchelder, 208 Mass. 441, 94 N. E. 702 841 
 
 Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236, 66 S. E. 624 1022, 1053 
 
 Green v. Goddard, 50 Mass. 212 486 
 
 Green v. Trenton, 54 N. J. L- 92, 98, 23 Atl. 281 9 
 
 Greene v. Fankhauser, 137 App. Div. 124, 121 N. Y. Supp. 1004 414, 415 
 
 Greene v. San Antonio, Tex. Civ. App. 178 S. W. 6 816, 817 
 
 Greenwood v. Callahan, in Mass. 298 302 
 
 Greenwood v. State, Tex. Crim. App., 174 S. W. 1079 348 
 
 Gregory v. American Thread Co., 187 Mass. 239 163 
 
 Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 124 Am. St. Rep. 402, 
 
 8 L. R. A. N. S. 1228 
 
 294, 324, 337, 636, 66s, 830, 84s, 848, 849, 90s, ion, 1083, 1086, 1088, 1126 
 
 Gregory v. Stryker, 2 Denio, N. Y. 628 411 
 
 Grier v. Samuel, 4 Boyce (Del.), 74, 8s Atl. 7S9, 86 Atl. 209, 4 N. C. C. 
 
 A. 2 282, 297, 825 
 
 L Ixxxii 
 
TABI,E OF CASES CITED 
 
 Griffith V. Baltimore & O. R., 44 Fed. Repr. 574, Ohio 779 
 
 Griffin v. Russell, 144 Ga. 275 ; 87 S. E. 10 593 
 
 Griffin v. Taxi Service Co., 217 Mass. 52, 104 N. E. 838 832 
 
 Grigsby & Co. v. Bratton, 128 Tenn. 597, 163 S. W. 804, 5 N. C. C. A. 131, 
 
 8N. C. C. A233 2Si 
 
 Grinnell v Cook, 3 Hill, 491, 38 Am. Dec. 663 412 
 
 Grogitzki v. Detroit Ambulance Co., 186 Mich. 374, 152 N. W. 923 
 
 160, 290, 757, 1005 
 
 Gross V. Foster, 134 N. Y. App. Div. 243, 118 N. Y. S. 889 637, 856, 859, 1072 
 
 Grouch V. Heflfner, 184 Mo. App. 365, 171 S. W. 23, 8 N. C. C. A. 580 
 
 842, 897, 899 
 Grout Bros. v. Moulton, 79 Vt. 122, 136, 64 Atl. 453. .438, 448, 473, 484, 489, 501. 5o8 
 
 Grudberg v. Ehret, 140 N. Y. S. 379, 79 Misc. 627, 4 N. C. C. A. 8 77i 
 
 Gue V. Wilson, 87 S. C. 144; 69 S. E. 99 746 
 
 Guignon v. Campbell, 80 Wash. 543, 141 Pac. 1031 1087 
 
 Gulf Coast, Etc., R. v. Hayter, 93 Tex. 239, 54 S. W. 944 ^°97 
 
 Gurney v. Piel, 105 Maine 501, 74 Atl. 1131 279, 291, 1051 
 
 Guy V. New York O. & R., 30 Hun. 399 (N. Y.) 996 
 
 Gwillen v. Twist (1895) ), 2 Q. B. 84 5S8 
 
 Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450 618, 823, 853 
 
 Hackworth v. Ashby, 165 Ky. 796, 178 S. W. 1074 283, 680 
 
 Haden v. McCally, 166 Mo. App. 675, 150 S. W. 1132, 6 N. C. C. A. 316. . 280 
 
 Hadley v. Cross, 34 Vt. 586 394, 40° 
 
 Haff v. Minneapolis & St. L. Ry., 14 Fed. Repr. 558 (Minn.) 722, 1085 
 
 Haile v. Tex. & Pac. Ry., 60 Fed. Repr. S57, C. C. A., Sth Cir 1096 
 
 Hajsek v. C. B. & Q. R., 68 Neb. 539, 94 N. W. 609 778 
 
 Hales v. Dearborn, 18 Mass. 345 289 
 
 Halff Co. V. Jones, Tex. Civ. App. 169 S. W. go6 443, 463, 465, 482 
 
 Hall V. Compton, 130 Mo. App. 67s, 108 S. W. 1122 
 
 23, 169, 20s, 208, 636, 649, 743, 746, 757 
 
 Hall V. Corcoran, 107 Mass. 251 709 
 
 Hall V. Renfro, 3 Met. (Ky.) 54 169 
 
 Hall V. Ripley, 119 Mass. 135 637, 71 1 
 
 Hall V. West End St. Ry, 168 Mass. 461, 47 N. E. 124 868, 904 
 
 Hall V. Winsor, 118 Mass. 255 651 
 
 Hall Furniture Co. v. Crane Breed Mfg. Co., 169 N. C. 41, 85 S. E. 35. . . 519 
 
 Halloran v. Worcester Con. R., 192 Mass. 104, 106, 78 N. E. 381 271, 777, 904 
 
 Hallowway v. Dumas (La.), 70 So. 321, 1916 770 
 
 Halparin v. Bulling, 150 Can. Sup. 471 ; 38 Ann. Cas. 474 S8t) 
 
 Hamann v. Leahy, 124 N. Y. S. 1018, 140 App. Div. 153 407 
 
 Hamblin v. N. Y., N. H. & H. R., 195 Mass. 558, 81 N. E.-258 874 
 
 Hamel v. Peabody (N. H. 1916), 97 Atl. 220 820, 870 
 
 Hamilton, H. & Co. v. Larrimer (Ind. 1914), 105 N. E. 43, 5 N. C. C. A. 
 
 783, 1090 
 
 Hammond v. Pickett, Tex. Civ. App., 158 S. W. 174 4, 7 
 
 Ixxxiii 
 
TABLE Olf CASES CITED 
 
 Hammons v. Setzer, 72 Wash. 550, 130 Pac. 1 141 566 
 
 Hampel v. D. G. R. & W. R., 138 Mich, i, 100 N. W. 1002 778 
 
 Hannan v. St. Clair, 44 Colo. 134, 96 Pac. Repr. 822 293, 709, 750 
 
 Hannigan v. Wright 5 Pennew. (Del.) 537, 540, 63 Atl. 234 147, 154, 183 
 
 208, 233, 322, 533, 639, 644, 649. 651, 654, 736, 796, 818, 829, 833, 836, 848, 1036, 1086 
 
 Hannon v. St. Clair; 44 Colo. 134, 96 Pac. Repr. 822 282 
 
 Hannon v. Van Dycke Co., 154 Wis. 454, 143 N. W. 150 S68 
 
 Hanvey v. Georgia Life Ins. Co., 141 Ga. 389, 81 S. E. 206 521 
 
 Hardenburgh v. Employers' Liability Assn. Co., 138 N. Y. S. 662, 78 Misc. 
 
 los 521 
 
 Harder v. Matthews, 67 Wash. 487, 121 Pac. 983 836, 848 
 
 Harder's Storage, Etc., Co. v. Chicago, 23s 111. 58, 68, 85 N. E. 25s 
 
 8, 15, 31, 36, S3, 70, 73, 75, 77, 81, 82, 96, 124 
 
 Haring c. Connell, 244 Pa. 439, 90 Atl. 910 SSi, 841 
 
 Harker v. Gruhl (Ind. 1916), in N. E. 457 818, 831 
 
 Harlan, City of, v. Kraschel, Iowa, 146 N. W. 463 307 
 
 Harlow v. Hummiston, 6 Cowen. 191 676 
 
 Harmel Co. v. Minneapolis St. Ry. Co., 130 Minn. 469, 153 N. W. 867 913 
 
 Hamau v. Haight (Mich. 1916), 155 N. W. 563 770, 1051, 1057, 1061 
 
 Harrington v. King, 121 Mass. 269 389 
 
 Harrington v. Stillman, 120 App. Div. 659, lOS N. Y. Supp. 75 122, 1000 
 
 Harris v. American Casualty Co. of Reading, 83 N. J. L. 641, 85 Atl. 194, 
 
 44 L. R. A., N. S. 70, 32 Ann. Cas. 846 521 
 
 Harris v. Burns, 133 N. Y. S. 418 303 
 
 Harris v. Fiat Motors, 22 Times L. Rep. SS6 5S8, S7o 
 
 Harris v. Mobbs, 3 L. R. Exch. Div. (41 Vict.), 273 302 
 
 Harris v. St. Paul Fire & Marine Ins.. Co., 126 N. Y. S. 118 518 
 
 Hart V. Hopwood, 89 Misc. 414, 151 N. Y. S. 871 348 
 
 Hart V. Hudson R. Bridge Co., 80 N. Y. 622 701 
 
 Hartfield v. Roper, 21 Wend. (N. Y.), 615, 622 664, 681, 682 
 
 Hartford Fire Ins. Co. v. Wimbish, 12 Ga. App. 712, 78 S. E 265, S22 
 
 Hartje v. Moxley, 23s 111. 164, 85 N. E. 216 
 
 SO, 319, 321, 345, 636, 676, 702, 70s, 1027, 1037, 1038 
 Hartley v. Miller, 165 Mich, iis, 130 N. W. 336, 33 L. R. A. N. S. 81, i 
 
 N. C. C. A. 126 544, 546 
 
 Hartnett v. Gryzmish, 218 Mass. 258 ; 105 N. E. 988 55°, 579 
 
 Harvey v. Dunlap, Lalor's (N. Y.) Reps. 193 651 
 
 Hassenyer v. Michigan Central R., 48 Mich. 205, 209, 12 N. W. 155 854 
 
 Hastings v. Lovering, 19 Mass. 214 497 
 
 Hathaway v. Rice, 19 Vermont 102, 107 1112 
 
 Hathaway v. Vaughan, 162 Mich. 269, 127 N. W. 337 440 
 
 Hauff V. S. D. Cent. Ry. Co., 34 S. D. 183, 147 N. W. 986, 8 N. C. C. A. 
 
 1041 890 
 
 Haug V. Great N. Ry., 8 No. Dak. 23, 77 N. W. 97 996 
 
 Hause v. Lehigh Valley Transit Co., 38 Pa. Super. Ct. Reps. 614. .187, 724, 895, 949 
 Havermale v. Houck, 122 Md. 82, 89 Atl. 314 859 
 
 Ixxxiv 
 
TABI,E OF CASES CITED 
 
 Hawes v. Knowles, 114 Mass. 518 S88, 632, 1078, 1120 
 
 Hawes V. Milton, 213 Mass. 446, 100 N. E. 665 546 
 
 I Hawk P. C. 324 924 
 
 Hawkins v. Pemberton, 51 N. Y. 198, 202 , 498 
 
 Hawks V. Locke, 139 Mass. 205, i N. E. 543 729 
 
 Hayden v. Fair Haven Ry. Co., 76 Conn. 355, 56 Atl. 613 895 
 
 Hayes v. Pitts-Kimball Co., 183 Mass. 262, 264, 67 N. E. 249 992 
 
 Hayes v. State, 11 Ga. App. 371, 75 S. E. 523 295, 316, 325, 332, 932 
 
 Hayes v. Wilkins, 194 Mass. 223, 227, 80 N. E. 449 576, 583 
 
 Haynes Automobile Co. v. Sinnett, 46 Ind. App. no, 91 N. E. 171 199, 268, 320 
 
 Hays V. Hogan, 180 Mo. App. 237, 165 S. W. 1125 592, 595 
 
 Hays V. Miller, 77 Pa. St. 238 t 529 
 
 Hays V. United Rys. Co., 183 Mo. App. 608, 167 S. W. 656, 6 N. C. C. A. 68 
 
 1089, HOC 
 
 Hazzard v. Carstairs, 244 Pa. 122, 90 Atl. 556 282, 597, 951 
 
 Heath v. Cook, 68 Atl. Repr. 427 (R. I.) 733. 769 
 
 Heath v. Seattle Taxicab Co., 73 Wash. 177, 131 Pac. 843, 5 N. C. C. A. 189 
 
 I9S> 325, 852, 1009, 1087 
 
 Hebard v. Mabie, 98 111. App. 543 , 840 
 
 Hederick v. Lanze, Iowa 1915, 152 N. W. 610 92, 118 
 
 Hedlund v. Minneapolis St. Ry. Co., 120 Minn. 319, 139 N. W. 630 914, 1020 
 
 Heeg V. Ucht, 80 N. Y. 579 239,255 
 
 Hegeman v. Western R., 13 N. Y. 9, 24 186, 425, 647, 803, 805 
 
 Heizer v. Kingsland, no Mo. 605, 19 S. W. 630, 33 Am. St. Rep. 482 428, 429 
 
 Helber v. Schaible, 183 Mich. 379, 150 N. W. 145 407 
 
 Helena v. Dunlap, 102 Ark. 131, 143 S. W. 138 97) 124 
 
 Helm V. Phelps, 157 Ky. 795, 164 S. W. 92 316 
 
 Hemming v. New Haven, 82 Conn. 661 ; 74 Atl. 892 715, 792 
 
 Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199 8, 77 
 
 Hendrick v. Maryland, 225 U. S. 610, 35 Sup. Ct. Rep. 140 137 
 
 Hennessey v. Taylor, 189 Mass. 583, 585, 76 N. E. 224 
 
 20s, 268, 331, 337, 649, 756, 823, 829, 830, 831, 842, 854 
 
 Henry v. Stewart, 85 111. App. 170, affirmed 185 111. 448 488 
 
 Henson, Bx parte, 49 Tex. Cr. 177, 90 S. W. Repr. 875 99 
 
 Herdman v. Zwart, 167 Iowa 500, 149 N. W. 631 289, 752, 758 
 
 Herlihy v. Smith, 116 Mass. 265 536, 544, 545 
 
 Hermann v. Rhode Island Co., 36 R. I. 447, 90 Atl. 813 678, 784, 790, 912 
 
 Hewitt v. Seattle, 62 Wash. 377, 1 13 Pac. 1084 546 
 
 Hicks v. Newport R. Co., 4 B. & S. 403n 526, 1124 
 
 Hicks V. Romaine, 116 Va. 401 991 
 
 Hicks V. Serano, 74 Misc. 274, 133 N. Y. S. 1102 (N. Y. Co. Ct.) 999 
 
 Higgins V. Dewey, 107 Mass. 494 646 
 
 Hight V. Bacon, 126 Mass. 10, 12 500 
 
 Hill V. Condon, Ala. App. 1916, 70 So. 208 129, 526, 754, 1106 
 
 Hill V. Seekonk (Inhab.), 119 Mass. 85, 88 223 
 
 Hill V. Winsor, 118 Mass. 251, 258 696, 697, 731, looS, 1029 
 
 Ixxxv 
 
TABI,E Olf CASES CITSD 
 
 Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892, 4 N. C. C. A. 10 833, 1031 
 
 Hillhouse v. United States, 152 Fed. Repr. 163, 81 C. C. A. 415 142 
 
 Himmelwright v. Baker, 82 Kans. 569, 109 Pac. 178 654, 731, 733 
 
 Hinds V. Steere, 209 Mass. 422, 95 N. E. 844, 35 h. R. A. N. S. 658, i 
 
 N. C. C. A. 134 807 
 
 Hiroux V. Baum, 137 Wis. 197, 118 N. W. 533, 19 1,. R. A. N. S. 332 
 
 564.591,595,851, 1088,1100 
 
 Hirsch v. Interurban St. Ry. Co., 94 N. Y. Supp. 330 '. 659, 902, 910 
 
 Hiscock V. Phinney, 8i Wash. 117, 142" Pac. 461, 8 N .C. C. A. 382 172,277, 300 
 
 Hoadley v. House, 32 Vt. 179 460 
 
 Hoag V. Railroad, 85 Pa. St. 292 686 
 
 Hobbs V. Hill, 157 Mass. 556, 32 N. E. 862 371 
 
 Hobbs V. London, Etc., W. Ry. L. R. 10 Q. B , 1096 
 
 Hoblit V. Gorman, 8 Ohio Nisi Prius, N. S. 270 48 
 
 Hocum V. Wietherick, 22 Minn. 152, 155 673 
 
 Hodges V. Chambers, 171 Mo. App. 563, 154 S. W. 429 295, 725, 838, 1089 
 
 Hodkins v. Rockport, 116 Mass. 573 221 
 
 Hoe V. Sanborn, 21 N. Y. Rep. 552 501 
 
 Hoffert, Bx parte, 34 S. D. 271, 148 N. W. 20, 52 L. R. A. N. 949 67, 68, 85 
 
 Holcomb Co. v. Clark, 86 Conn. 319, 85 Atl. 376 408 
 
 Holden v. Hadley, 180 Mich. 568, 147 N. W. 482 299 
 
 Holden v. McGillicuddy, 215 Mass. 563, 102 N. E. 923, 4 N. C. C. A. 25. . 716 
 
 Holden v. Mo. R., 177 Mo. 456, 76 S. W. 973 778 
 
 Holderman v Witmer, 166 Iowa 406, 147 N. W. 926 821, 831 
 
 Holland v. Bartch, 120 Ind. 46, 51, 22 N. E. 83 5 
 
 Holland v. Boston, 213 Mass. 560, 100 N. E. 1009 66, 67, 191, 718 
 
 Holland v. State, 11 Ga. App. 769, 76 S. E. 104 317, 353, 761 
 
 Holliday v. Athens, 10 Ga. App. 709, 74 S. E. 67 217, 659 
 
 HoUis V. Weissinger, 142 Ky. 129, 134 S. W. 176 130 
 
 HoUister v. Nowlen, 19 Wend. (N. Y.) 236 '. . 804 
 
 Holly V. Boston Gas Light Co., 8 Gray (74 Mass.) 123 683, 1008 
 
 Holman v. Townsend, 13 Met. 297 224 
 
 Holmboe v. Morgan, 69 Oregon 395, 138 Pac. 1064 566, 689 
 
 Holmes v. Carley, 31 N. Y. 290 342 
 
 Holmes v. Oregon, Etc., R., 5 Fed. Repr. 523, 538 871 
 
 Holmes v. Sandpoint & I. R. Co., 25 Idaho 345, 137 Pac. 532 908 
 
 Holt V. Cutler, 185 Mass. 24, 69 N. E. 33 288 
 
 Home Insurance Co. v. New York, 134 U. S. 594 135 
 
 Homer v. Thwing, 20 Mass. 492 555 
 
 Hony V. C. B. & Q. Ry., 59 Fed. Repr. 422, Iowa 779 
 
 Hoope V. Chicago, Etc., R., 61 Wis. 364, 21 N. W. 227 1055 
 
 Hopkins V. Commonwealth, 44 Mass. 460, 462 354 
 
 Hoppe V. Chicago, Etc., Ry., 61 Wis. 365, 21 N. W. 227 1032, 1057 
 
 Horak v. Dougherty, Iowa 1908, 114 N. W. 883, 8 N. C. C. A. 1079 
 
 634, 741, 762, 765 
 Horandt v. Central R. of Co., 81 N. J. L. 474, 83 Atl. 511 879, 889 
 
 Ixxxvi 
 
TABLE OP CASES CITED 
 
 Hornstein v. Southern Boulevard Ry. Co., 138 N. Y. S. 1080, 79 Misc. 34. . SS^ 
 
 Horrigan v. Inhab. Clarksburg, 150 Mass. 218, 220, 22 N. E. 897 637 
 
 Horton v. Ipswich, 12 Cush. (66 Mass.) 488 214, 224, 1008 
 
 Hot Springs St. Ry. v. Hildreth, 72 Ark. 572, 82 S. W. 245 117 
 
 Houfe V. Fulton, 29 Wis. 296, 9 Am. Rep. 568 779 
 
 Hough V. St. lyouis Car Co., 146 Mo. App. 58, 123 S. W. 83 272, 733, 1070 
 
 House V. Cramer, 134 Iowa 374, 112 N. W. 3 
 
 154, 164, 20s, 644, 647, 649, 741, 746, 748, 756, 1032 
 Houston Belt & Terminal Co. y. Rucker, Tex. Civ. A. 1914, 167 S. W. 
 
 301 160, 713 
 
 Howard, In re, 26 Vt. 208 34C> 
 
 Howe V. Leighton, 75 N. H. 601, 75 Atl. 102 582 
 
 Howe V. Lowell, loi Mass. 98 221 
 
 Howe V. Newmarch, 12 Allen (94 Mass.) 49 S78, 589, 627 
 
 Howes V. Knowles, 114 Mass. 518 1113 
 
 Hoyt V. N. Y. L. E. & W. R., 118 N. Y. 399, 23 N. E. 565 724, 948 
 
 Hubbard v. Bartholomew, 163 Iowa 58, 144 W. 13, 49 L. R. A. N. S. 443 
 
 279,281,678,791 
 
 Hubbard v. Boston & A. R., 159 Mass. 320, 323, 34 N. E. 459 992 
 
 Hubert v. Granzon (Minn.), 155 N. W. 204 275 
 
 Hudson V. Lynn & B. R., 185 Mass. 510, 512 99i, 995, 996, 1124 
 
 Huff V. Ford, 126 Mass. 24 567 
 
 Hufft V. Dougherty, 184 Mo. App. 374, 171 S. W. 17 149, 594 
 
 Huggon V. Whipple Co., 214 Mass. 64, 100 N. E. 1087 835 
 
 Hughes V. Bergen & W., Auto Co., 75 N. J. L. 355, 67 Atl. 1018 537, 545, 572 
 
 Hughes V. Connable, 5 Pen. (Del.) 523, 64 Atl. 72 639 
 
 Hughes V. New Haven Taxicab Co., 87 Conn. 416, 87 Atl. 721 29 
 
 Hull V. Seattle, R. & S. I?. Co., 60 Wash. 162, no Pac. 804, 7 N. C. A. 
 
 542 437, 885 
 
 Hunt V. North Carolina R. Co., N. C. 1916, 87 S. E. 210 677 
 
 Hunter v. Ricke, 127 la. 108, 102 N. W. 826 389^396 
 
 Huntress v. Railroad, (A N. H. 185, 34 Atl. 154 874, 1033, 1034, 1060 
 
 Huntress v. Railroads, 66 Atl. Repr. 875 (Md.) 271 
 
 Huyler v. New York City, 150 App. Div. 206, 145 N. Y. S. 650, 5 N. C. C. 
 
 A. 444 216 
 
 Hyatt v. Adams, 16 Mich, 180 985 
 
 Hyde v. Hubinger, 87 Conn. 704, 87 Atl. 790, 8 N. C. C. A. 372 858 
 
 Hyde v. Mc. Creery, 130 N. Y. S. 269, 145 App. Div. 729 715 
 
 Hyde Park v. Gay, 120 Mass. 589 , 631 
 
 Hydes Ferry T. Co. v. Yates, 108 Tenn. 428, 67 S. W. 69 778 
 
 111. C. R. R. Co. V. Ashline, 171 111. 313, 315, 49 N. E. 52 129, 1060 
 
 111. Cent. R. V. McLeod, 78 Miss. 334, 29 So. 76 778 
 
 Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, i L. R. A. N. S. 
 238, 6 Ann. Cas. 656 
 
 156, 20s, 206, 207, 209, 210, 230, 233, 633, 644, 649, 740, 744, 756 
 
 Ixxxvii 
 
TABIvE OF CASES CITED 
 
 Indiana Union Traction Co. v. tove, i8o Ind. 442; 99 N. E. 1005 677, 789,912 
 
 Indianapolis St. Ry. v. Bordenchecker, 23 Ind. App. 138, 70 N. E. 996 1047 
 
 Indianapolis St. Ry. v. Johnson, 163 Ind. 518, 72 N. E. 571 ^^^J 
 
 Ingalls V. Bills, 50 Mass. i 156, 167, 181, 401, 425, 602, 719, 804, 805 
 
 Ingraham v. Stockamore, 63 Misc. 114, 118 N. Y. Supp. 399 241, 538, 552, 921 
 
 Insurance Co. v. Boon, 95 U. S. 117, 130 694 
 
 International Harvester Co. v. Bean, 159 Ky. 842, 169 S. W. 549 467, 499, 500 
 
 International Harvester Co. v. Porter, 160 Ky. 509, 169 S. W. 993 436, 499, 504 
 
 Intoxicating l,iquor Cases, 25 Kans. 7S1 87, 339, 342 
 
 Irwin V. Judge, 81 Conn. 492, 71 Atl. 572 IS4, 274, 299, 319, 562, 570 
 
 Isaacs V. Wannamaker, 189 N. Y. 122, 8i N. E. 763 S14, 1109 
 
 Isbell V. Pittsfield, Etc., Ry. Co., 196 Mass. 300, 82 N. E. 3 167 
 
 Ishkosh V. Campbell, 151 Wis. 567, 139 N. W. 316 u6 
 
 J. F. Darmondy Co. v, Reed (Ind. 1916, in N. E. 317 681, 857, 1088 
 
 J. T. & K. W. R. V. P. L. T. & M. Co., 27 Fla. i, 92, 9 So. 661 622 
 
 Jackson v. Neff, 64 Fla. 326, 60 So. 350 72, 73, 86, 98 
 
 Jacobs, In re, 98 N. Y. 108 28 
 
 Jacobs V. Atchison T. & S. F. Ry., Kans. 1916, 154 Pac. 1023 878 
 
 Jacobs V H. J. Koehler Sporting Goods Co., 208 N. Y. 416, 102 N. E. Si9> 
 
 8 N. C. C. A. 370 8s6 
 
 Jacobson v. Poindexter, 42 Ark. 97 1092 
 
 Jaehnig v. Ferguson, 197 Mass. 364, 83 N. E. 868 862 
 
 James v. Morton, 139 N. Y. S. 941, 79 Misc. 255 758 
 
 James Everard's Breweries v. New York Rys. Co., 151 N. Y. S. 90s 660 
 
 Janes v. Groves, 58 Ohio Law Bui. 55 72 
 
 Janik v. Ford Motor Co., 180 Mich. 557, 147 N. W. 510, 52 L. R. A. N. S. 
 
 294, 6 N. C. C. A. 364 ISO, 56s 
 
 Jacquith v. Richardson, 49 Mass. 217 264, 268, 269 
 
 Jaquith v. Worden, -ji Wash. 349, 132 Pac. 33, 48 L. R. A. N. S. 827 
 
 130, 307, 309, 526, 595, 690 
 Jefferson, 'Ex parte, 61 Tex. Civ. App. 237, 134 S. W. 685, z^ L. R. A. N. 
 
 S. 303 122 
 
 Jennings v. Rundall (7 T. R. 335) 556 
 
 Jepson v. Crosstown St. Ry., 72 Misc. 103, 129 N. Y. S. 233 222, 791 
 
 Jerome v. Hawley, 131 N. Y. S. 897, 147 App. Div. 475 544, 772 
 
 Jetter v. N. Y. & H. R. Co., 41 N. Y., 2 Keyes. 154 646 
 
 Jewison v. Di«udonne, 127 Minn. 163, 149 N. W. 20, 7 N. C. C. A. 436 386 
 
 Joel v. Morrison, 6 Car. & P. 501 529, 535, 581 
 
 Johnson v. Cadillac Motor Car Co. (Cir. Ct. N. Y.), 194 Fed. 497 432 
 
 Johnson v. Chicago, 258 111. 494, loi N. E. 960, 45 L. R. A. N. S. 1167, 4 
 
 N. C. C. A. 40 546 
 
 Johnson v. Coey, 237 111. 88, 86 N. E. 678 156, 157, 400, 402, 811 
 
 Johnson v. Heitman, 88 Wash. 595, 153 Pac. 331 298, 710 
 
 Johnson v. Hudson River R., 6 Duer 642 (affirmed 20 N. Y. 65) 
 
 164, 621, 644, 654, 671, 936 
 
 Ixxxviii 
 
TABL,t OP CASSS CiTfiD 
 
 Johnson v. Irvin, 130 Minn. 134, 153 N. W. 267 307 
 
 Johnson v. Irwin, 130 Minn. 134, 153 N. W. 267 1056 
 
 Johnson v. Johnson, 85 Wash. 18, 147 Pac. 649 832 
 
 Johnson v. Kansas City Home Telephone Co., 87 Kan. 441, 124 Pac. 528. .850, 1005 
 Johnson v. N-ew York, 186 N. Y. 139, 78 N. E. 715, reversing 109 App. Div. 
 
 821, 96 N. Y. S. 754 101,230,852,972,975,976,981,982 
 
 Johnson v. Oakland St. Ry., 127 Cal. 611, 60 Pac. 170 1060, 1064 
 
 Johnson v. Quincy, 198 Mass. 411, 84 N. E. 606 97 
 
 Johnson v. Reliance Automobile Co., 23 Cal. App. 222, 137 Pac. 603. . .976, 982, 983 
 
 Johnson v. St. Joseph, 96 Mo. App. 663, 71 S. W. 106 778 
 
 Johnson v. Scott, 119 Minn. 470, 138 N. W. 694 837 
 
 Johnson v. Sergeant, 168 Mich. 444, 134 N. W. 568, 2 N. C. C. A. 334 23, 98, 554 
 
 Johnson v. Shaw, 204 Mass. 165, 90 N. E. 518 293, 294, 637, 769 
 
 Johnson v. Small, 5 Mon. (Ky.) 26 156 
 
 Johnson v. State, 17 Tex. 517 939 
 
 Johnson v. Studebaker Corporation, 160 Ky. 509, 169 S. W. 992 499 
 
 Johnson v. Young, 127 Minn. 462, 148 N. W. 940, 8 N. C. C. A. 580 844 
 
 Johnston v. Macon, 62 Pa. 645, 652 , 125 
 
 Johnston v. Tuttle, 196 Mass. 113, 81 N. E. 886 755, 1030 
 
 Jolly V. Terre Haute Bridge Co., 6 McLean, 237, 242 203 
 
 Jones V. Andover, 10 Allen (Mass.) 18 281, 288, 712 
 
 Jones V. Barkley, 2 Doug. 684 507 
 
 Jones V. Belle Isle, 13 Ga. App. 437, 79 S. E. 357 398 
 
 Jones V. Belt, 8 Houst. (Del), 562, 32 Atl. Repr. 723 758 
 
 Jones V. Boyce, i Starkie, 493 721 
 
 Jones V. Burks, iii Ark. 51, 161 S. W. 177 149 
 
 Jones V. Collins, 177 Mass. 444, 59 N. E. 64 219 
 
 Jones V. Hoge, 47 Wash. 663, 92 Pac. 433, 125 Am. St. R. 915, 14 L. R. A. 
 
 N. S. 216 242, 423, 582 
 
 Jones V. Just, L. R. 3 Q. B. 197 500 
 
 Jones V. Keefe, 159 Wis. 584, 150 N. W. 954 498, 514 
 
 Jones V. Morgan, 90 N. Y. 4 391 
 
 Jones V. Orient Ins. Co., 184 Mo. App. 402, 171 S. W. 28 1105 
 
 Jones V. Robbins, 74 Mass. 329, 341 363 
 
 Jones V. ScuUard, 14 Times L. Reps. 580 560, 567, 570 
 
 Jones V. Shattuck, 175 Mass. 415, 56 N. E. 736 848 
 
 Jones V. Von Bever, 164 Ky. 80, 174 S. W. 795 582 
 
 Jones V. United States, 96 U. S. 24 506 
 
 Jordan v. Am. Sight-Seeing Coach Co., 129 N. Y. App. Div. 313, 113 N. 
 
 Y. S. 786 651,732,860,951 
 
 Joslyn V. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. 77 
 
 452, 453, 482, 495, 503, 509, 514 
 
 Joyce V. Parkhurst, 150 Mass. 243, 22 N. E. 899 378, 382 
 
 Joyner v. Interurban Ry. Co., Iowa 154 N. W. 936, 1916 911 
 
 Judge V. Wallen, 98 Nebr. 154, 152 N. W. 318 689 
 
 Judson V. Great Northern Railway, 63 Minn. 248, 255 974 
 
 Ixxxix 
 
TABLE OF CASES CITED 
 
 June V. Falkinburg, 89 Mo. App. 563, 571 461, 498 
 
 Kahn v. Home Telephone Co., Oregon, 1916, 152 Pac. 240 SS". S5I 
 
 Kalb V. Redwood, 147 App. Div. 77, 131 N. Y. S. 789 844 
 
 Kalich V. Knapp, -jz Ore. 558, 142 Pac. 594, 145 Pac. 22 1 18 
 
 Kane v. Boston El. Ry., 192 Mass. 386, 78 N. E. 485 ^^^ 
 
 Kane v. Titus, 81 N. J. 1,. 594, 80 Atl. 453, Ann. Cas. 1912D, 237 137 
 
 Kansas City, Etc., R. Co. v. Crocker, 95 Ala. 423, 11 So. 262 1060, 1070 
 
 Kansas City Auto Co. v. Old Colony Ins. Co., 187 Mo. App. 514, 174 S. 
 
 W. IS3 522 
 
 Kathmeyer v. Mehl, 60 Atl. Repr. (N. J.) 40 829, 847, 1087, iioo 
 
 Kauffman v. Nelson, 225 Pa. St. 174, 73 Atl. 1105 272, 654, 824, 946 
 
 Kavanau v. Hubbard, Tex. Cir. App. 160 S. W. 304 452 
 
 Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 I^ R. A. N. S., 
 
 970 544, 592. 596 
 
 Kearnes v. Sowden, 104 Mass. 63 304 
 
 Keaveny v. Moran, 208 Mass. 277, 94 N. E. 274 832 
 
 Keber v. Central Brewing Co. of New York, 150 N. Y. S. 986 305 
 
 Keevil v. Ponsford (Tex. Civ. App.), 173 S. W. 518, 9 N. C. C. A. 665. . 275 
 
 Keith V. Worcester, Etc., St. Ry., 196 Mass. 478, 82 N. E. 680 836, 866, 869 
 
 Kellaher v. Portland, 57 Oregon 575, 1 12 Pac. 1076 2, 86 
 
 Keller v. State, 11 Md. 525 69 
 
 Kelly V. So. Minnesota Ry., 28 Minn. loi 224, 647, 905, 1052 
 
 Kelsey v. Barney, et al., 2 Kern. 425, N. Y 621 
 
 Kelsey V. New York, Etc., R., 181 Mass. 64, 67, 63 N. E. S. . . . , 992 
 
 Kelton V. Fif er, 26 Pa. Super. Ct. 603 549 
 
 Kemmler, In re, 136 U. S. 436 135 
 
 Kendall v. Rossi, 35 R. I. 451, 87 Atl. 186, 45 L,. R. A. N. S. 985 408 
 
 Kendall v. West, 196 111. 221, 63 N. E. 683 505. 607 
 
 Kennedy v. Favor, 80 Mass. 200 382, 383 
 
 Kennedy v. Panama Mail Co., L. R. 2 Q. J3. 580, 587 44i 
 
 Kennedy v. R. & L. Co., 224 Mass. 207, 112 N. E. 872 S43 
 
 Kennedy v. Way, Brightley's Rep. (Pa.), 186 1055 
 
 Kenney v. Ipswich (Inhab.), 178 Mass. 368 224 
 
 Kent V. Treworgy, 22 Colo. App. 447, 125 Pac. 128 770 
 
 Kersey v. City of Terre Haute, 161 Ind. 471, 68 N. E. 1027 53, 54, 123, 135 
 
 Kessler, Ux parte, 26 Idaho 764, 146 Pac. 113 3, 83 
 
 Ketchum v. Fillingham, 162 Mich. 704, 127 N. W. 702 619, 1005- 
 
 Kidder v. Dunstable (Inhab.), 77 Mass. 342 211, 631, 1028 
 
 Kilkenny v. Bockius (Cir. Ct. D. R. I.), 187 Fed. 382 690 
 
 Kincaid v. Dunn, 26 Cal. App. 686, 148 Pac. 235 1102, 1106 
 
 King V. Brenham Automobile Co., Tex. Civ. App., 145 S. W. 278 547, 735 
 
 King V. Consol. Traction Co., 33 Pittsb. L. J. N. S. 138 733, goi, 902, 1078, 1125 
 
 King V. Green, 7 Cal. App. 473, 94 Pac. ^^^ 324, 636, 656, 666, 701, 833, 851, 1060 
 
 King V. Ham, 88 Mass. 298 374 
 
 King V. Justices, 2 Irish Reps. K. B. 698 3, 336 
 
 xc 
 
TABLE 0^ CASUS CITUD 
 
 King V. Plummer (Holt, C. J.). 12 Mod. p. 628, Case 1031 (Eng.) 93i, 946, 959 
 
 Kingman, petitioner, 153 Mass. 566, 576, 27 N. E. 779 34 
 
 Kinmore v. Cresse, 53 Ind. App. 693, 102 N. E. 403 841, 999 
 
 Kinney v. Koopmah, 37 L. R. A. 497 255 
 
 Kinsman v. Kershaw, 119 Mass. 140 485 
 
 Klaus V. Thompson Auto Co., 131 Minn. 10 154 N. W. 508 463 
 
 Kleebaur v. Western Fuse & Explosive Co., 60 L. R. A. 377 255 
 
 Kleibaz v. Middletown P. Co., i8o Mass. 363, 366, 62 N. E. 371 163 
 
 Klein V. Burleson, 138 App. Div. 405, 122 N. Y. Suppl. 752 672, 1002, 1051, 1087 
 
 Kline v. Central P. R., 37 Cal. 400 996 
 
 Kling V. Thompson-McDonald Lumber Co., 127 Minn. 468, 149 N. W. 947, 
 
 8 N. C. C. A. 586 897, 1124 
 
 Klock V. Newbury, 63 Wash. 153, 114 Pac. 1032 4S2, 464, 466, 467 
 
 Kneedler, Bx parte, 243 Mo. App. 632, 147 S. W. 983, 40 L. R. A. N. S. 
 
 622, Ann. Cas. 1913, c. 923 46, 47 
 
 Kneeshaw v. Detroit United Ry., 169 Mich. 697, 135 N. W. 903 iS9, 678 
 
 Kneff V. Sanford, 63 Wash. 503, 115 Pac. 1040, 2 N. C. C. A. 422 587 
 
 Knight V. Lanier, 74 N. Y. Supp. 999, 65 App. Div. 282, 69 N. Y. App. Div. 
 
 459 179. 207, 632, 636, 740, 742 
 
 Knight V. Willard, 26 N. D. 140, 143 N. W. 346 S14 
 
 Knight's Case, i Lewin C. C. 168, East P. C. 231, 263 937 
 
 Knightstown v. Musgrove, 116 Ind. 121, 123, 18 N. E. 452 777 
 
 Knoxville Ry., Etc., Co. v. Vangilder, 132 Tenn. 487, 178 S. W. 1117 309, 67Q 
 
 Knuppie v. Knickerbocker Ice So., 84 N. Y. 488 71 1 
 
 Koenig v. Sproesser, 161 Wis. 8, 152 N. W. 473 647, 742, 951 
 
 Koplitz V. St. P., 86 Minn. 373, 90 N. W. 794 778 
 
 Kurtz V. Tourison, 241 Pa. 425, 88 Atl. 656 597, 850 
 
 L. S. & M. S. R. V. Mcintosh, 140 Ind. 261, 272, 38 N. E. 476 777 
 
 Lackey v. The State, 53 Tex. Cr. 459, no S. W. 903 1002 
 
 Ladd V. Foster, 31 Fed. Rep. 827 (Oregon) 720 
 
 Ladhman v. Young (App. Term 1914), 145 N. Y. S. 1089 1049 
 
 Laing V. Fidgeon, 6 Taunt. 108 504 
 
 Lake Erie & W. Ry. Co. v. Reed, 57 Ind. App. 65, 103 N. E. 127, 4 N. C. 
 
 C. A. 22 681 
 
 Lake Shore & M. S. R. v. Miller, 25 Mich. 274 777 
 
 Lamanna v. Stevens, Del. Super. Ct., 1915, 93 Atl. 962 549 
 
 Lames v. Armstrong, 162 Iowa 327, 144 N. W. i, 49 L. R. A. N. S. 69 7 
 
 Lampe v. Jacobsen, 46 Wash. 536, 90 Pac. 654 
 
 242, 243, 271, 276, 324, 636, 649, 823, 830, 833 
 
 Lamson v. American Axe & T. Co., 177 Mass. 144, 58 N. E. 585 186 
 
 Lancaster v. Richardson, 4 Lans. (N. Y.) 136, 140 359 
 
 Lane v. Atlantic Works, iii Mass. 136, 139 687, 697, 862 
 
 Lane v. Boston & A. Ry., 112 Mass. 455 1029 
 
 Lane v. Bryant, 75 Mass. 245 302 
 
 Lane v. Crombie, 29 Mass. 177 167, 271, 672,676 
 
 xd 
 
TABI,5 OF CASES CITBD 
 
 Lane v. Roth, 195 Fed. 255, 1 15 C C. A. 227, 3d Cir 566 
 
 Lane v. Sargent, 217 Fed. 237, 133 C. C. A. 231 818 
 
 Lannon v. Albany Gas Co., 46 Barb. 264, 270, affirmed 44 N. Y. 459 684 
 
 Lantz V. Highstown, 46 N. J. Law Reps. (17 Vroom) 102 104, 105 
 
 Latimer v. Anderson County, 95 S. C- 187, 78 S. E. 879, 4 C. C. A. 23, 387 
 
 214, 217, 678, 680, 781 
 Laughlin v. Seattle Taxicab & Transfer Co., 84 Wash. 342, 146 Pac. 847, 734, loio 
 
 Laurisch v. Minneapolis, St. P., Etc., R., Minn. 1916, 155 N, W. 1074 886 
 
 Lauson v. Fond Du Lac (Town), 141 Wis. 57, 123 N. W. 629 306, 309, 774 
 
 Lauterbach v. State, 132 Tenn. 603, 179 S. W. 130 934> 943 
 
 Lawrence v. Fitchburg, Etc., Ry., 201 Mass. 489, 87 N. E. 898 
 
 187, 654, 656, 662, 665, 724, 782, 783, 895, 911, 949 
 
 Lawrence v. Middleton, 103 Miss. 173, 60 So. 130 385 
 
 Lawrence v. Sioux City, Iowa (1916), 154 N. W. 494 689, 788, 911, 1031 
 
 Lawson v. Wells Fargo, 113 N. Y. Supp. 647 552, 706, 711, 1079, 1126 
 
 Lawton V. Steele, 152 U. S. 133 136 
 
 Leach v. Asman, 130 Tenin. 510, 172 S. W. 303 247, 843 
 
 Learock v. Putnam, 1 11 Mass. 499 632 
 
 Leavenworth v. Hach, 57 Kans. 57, 45 Pac. 65 711 
 
 Le Blanc v. Lowell L. & H. St. Ry., 170 Mass. 564, 49 N. E. 927 "Jiy 
 
 Le Blanc v. New Orleans, 138 La. 243, 70 So. 212 817 
 
 Lee V. Burlington, 113 Iowa 356, 85 N. W. 618 1108 
 
 Leeper v. Texas, 139 U. S. 462 I3S 
 
 Lefkowitz V. Sherwood, Tex. Civ. App. 1911, 136 S. W. 850 315,691 
 
 Lehman v. N. Y. City Ry. Co., 107 N. Y. Suppl 561, App. Terra 1907 7", 900 
 
 Lemon v. Chandler, 68 Mo. 340 801 
 
 Lera v. Fairchild Gilmore Co. (Cal. Ind. Ace. Bd.), 5 N. C. C. A. 987. ■ • ■ 852 
 
 Levine v. Ferlisi, 192 Ala. 362, 68 So. 269 598, 1022 
 
 Levis v. ^ope Motor Co., 202 N. Y. 402, 95 N. E. 815 481 
 
 Levyn v. Koppin, 183 Mich. 232, 149 N. W. 993 SS4, 1060 
 
 Lewis v. Amorous, 3 Ga. App. 50, 1907, 59 S. E. Repr. 340 181, 184, 230, 
 
 244.305,334,394,423,536,544,569,595,631,665,930, 932, 953, 1000,1004,1111 
 Lewis v. National Cash Register Co., 84 N. J. L. 598, 87 Atl. 345,- 4 N. C. 
 
 C. A. 6 548, 865 
 
 Lewis V. Pope Motor Car Co., 202 N. Y. 402, 95 N. E. 815 513 
 
 Lewis V. Seattle Taxicab Co., 72 Wash. 320, 130 Pac. 341, 4 N. C. C. A. 10 
 
 II 833 
 
 Lewis V. Smith, 107 Mass. 338 1029 
 
 Lewis V. Terry, in Cal. 39, 44, 43 Pac. 398, 52 Am. St. R. 146 428, 429 
 
 Lewis V. Wood, 247 Pa. 545, 93 Atl. 605 842, 844, 869 
 
 L'Hote V. New Orleans, 177 U. S. 587 136 
 
 License Tax Cases, S Wall. 472 69 
 
 Liebrecht v. Crandall, no Minn. 454, 126 N. W. 69 842, 896 
 
 Lightfoot V. Winnebago T. Co., 123 Wis. 479, 102 N. W. 30 779 
 
 Lilienthal, Etc., v. United States, 97 U. S. 268 2036 
 
 LJmpus V. London Gen. Om. Co., i H., Etc., 526 543 
 
 xcii 
 
TABLB OF CASES CITBD 
 
 Lincoln v. Dehner, 268 111. 17s, 108 N. E. 991 125 
 
 Lincoln v. Saratoga, Etc., R., 23 Wend. 425, 435 1092, 11 18 
 
 Lincoln v. Schenectady, Etc., Railroad, 24 Wend. 434 1096 
 
 Lincoln v. Shaw, 17 Mass. 410 375 
 
 Lincoln Taxicab Co. v. Smith, 88 Misc. 9, 150 N. Y. S. 86 345 
 
 Lindenbaum v. New York, Etc., R., 197 Mass. 323, 84 N. E. 129 1027 
 
 Lindley v. Fries Mfg. & Power Co., 153 N. C. 394, 69 S. E. 274 905 
 
 Lindsay v. Cecchi, 24 Del. (i Boyce) 185, 80 Atl. 523, i N. C. C. A. 88, 75 
 
 Atl. 376 192 
 
 Lininger v. San Fancisco, Etc., R. C, 18 Cal. App. 411, 123 Pac. 235 678,913 
 
 Linnehan v. Sampson, 126 Mass. 511 720, 728, 730 
 
 Linville v. Nissen, 162 N. C. 95, ^^ S. E. 1096, 4 N. C. C. A. 11 
 
 246, 539, 553, 595, 596 
 
 Little V. Cent. Dist. P. T. Co., 213 Pa. St. 229, 62 Atl. 848 778 
 
 Little V. Hackett, 1 16 lU. S. 366, 6 S. Ct. 391 774, 111, 792, 806 
 
 Littlefield v. The State, 42 Neb. 223, 228, 60 N. W. 724 115 
 
 Littlewood V. Detroit United Ry. Co., Mich. 1916, 155 N. W. 698 889, 911 
 
 Livingston, Etc., v. City of Paducah, 80 Ky. 656 123 
 
 Lizotte V. New York Cent., Etc., R., 196 Mass. 523, 83 N. E. 362 1027 
 
 Lloyd V. Calhoun, 78 Wash. 438, 139 Pac. 232 285 
 
 Lloyd V. Kilpatrick, 71 Misc. 19, 127 N. Y. S. 1096 414 
 
 Lochhead v. Jensen, 42 Utah 99, 129 Pac. 347 226 
 
 Lochlibo, The, 3 W. Rob. Adm. 318 9So 
 
 Lochner v. New York, ig8 U. S. 45, 53 23 
 
 Locke V. Royal Ins. Co., 220 Mass. 202, 107 N. E. 911 519 
 
 Lockhart v. Lichtenthaler, 46 Pa. St. 151 698, 778 
 
 Loehr V. Abell, 174 Mich. 590, 140 N. W. 926 553 
 
 Loftus V. North Adams, 160 Mass. 161, 35 N. E. 674 871 
 
 Loftus V. Pacific Electric Ry. Co., 166 Cal. 464, 137 Pac. 34 ^ 880 
 
 Loftus V. Pelletier (Mass. 1916), iii N. E. 712 171,680 
 
 Long V. Morrison, 14 Ind. 595 985 
 
 Long V. Nute, 123 Mo. App, 204, 100 S. W. 511 S5o,.577, 646 
 
 Long V. Warlick, 148 N. C. 32, 61 S. E. 617 741, 746, 748 
 
 Long Island R. Co. v. Darnell, C. C. A. 2d Cir., 221 F€d. 191 678 
 
 Longmeid v. Holliday, 6 Ex. 765 429 
 
 Loop V. Litchfield, 42 N. Y. 351 427, 428 
 
 Loose V. Deerfield Twp. (Mich. 1915), 153 N. W. 913 221, 225 
 
 Lorah v. Rinehart, 243 Pa. 241, 89 Atl. 967 650, 829, 1047 
 
 Lorenz v. Tisdale, 127 N. Y. App. Div. 433, iii N. Y. S. 173 
 
 207, 27s, 290, 308, 632, 636, 654, 667 
 
 Losee V. Clute, 51 N. Y. 494 423, 426, 427 
 
 Lotharius v. Milwaukee Electric Ry. & Lighting Co., 157 Wis. 184, 146 N. 
 
 W. 1122 895 
 
 Lotz V. Harden, 217 Pa. 339, (& Atl. 525, 10 L. R. A. N. S. 202, 118 Am. St. 
 
 Rep. 922, 10 Am. Cas. 731 55°, 582 
 
 Louisville v. Zoeller, 155 Ky. 192, 160 S. W. 500, 5 N. C. C. A. 443 221, 679 
 
 xciii 
 
TABLB OF CASES CITED 
 
 Louisville, Etc., R. v. Jones, 108 Ind. 566, 9 N. E. 476 1042, 1070 
 
 Louisville & N. R. R. v. Eckman, 137 Ky. 331, 125 S. W. Repr. 729 
 
 699, 700, 874, 876, 889 
 
 Louisville & N. R. v. Ellis, 97 Ky. 330, 30 S. W. 979 996 
 
 Louisville & Nashville R. v. Johnson, 108 Ala. 62, 19 So. 51 996 
 
 Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677, 701 23 
 
 Louisville & N. R. v. Nethery, 160 Ky. 369, 169 S. W. 883, 8 N. C. C. A. 
 
 1047 876, 877, 1089 
 
 Louisville Lozier Co. v. Louisville, 159 Ky. 178, 166 S. W. 767 387 
 
 Louisville Lozier Co. v. Sallee, Ky., 180 S. W. 841 544, 559, 1050, 1090 
 
 Louisville N. A. & C. Ry. v. Creek, 130 Ind. 139, 29 N. E. 481 777 
 
 Louisville Ry. v. Anderson, 76 S. W. 153, 25 Ky. L. R. 666 777 
 
 Louisville Ry. Co. v. Wehner, 153 Ky. 190^ 154 S. W. 1087 600, 910 
 
 Love V. Sargent, C. C. A. i St. Cir., 217 Fed. 237 823 
 
 Love V. Worcester Consol. St. Ry. Co., 213 Mass. 137, 99 N. E. 969, 9 N. 
 
 C. C. A. 830 717 
 
 Lovejoy v. Dolan, 64 Mass. 496 273, 279,289, 294 
 
 Lowell (City) v. Archambault, 189 Mass. 70, 75 N. E. 65 103, 104, 105 
 
 Lowell V. Boston & L. R., 40 Mass. 24, 33 599 
 
 Lucas V. New Bedford & T. R., 72 Mass. 64 634 
 
 Luckett V. Reighard, 248 Pa. 24, 93 Atl. 773 55°, 563, s8o, 1009 
 
 Ludberg v. Barghoorn, 73 Wash. 476, 131 Pac. 1165 550, 574 
 
 Ludwigs V. Dumas, 72 Wash. 68, 129 Pac. 903 769 
 
 Lund V. Tyngsboro, 65 Mass. 563 720, 1019 
 
 Luther V. State, 177 Ind. 619, 98 N. E. 640 208, 209, 940, 941 
 
 Lyman v. Amherst, 107 Mass. 339, 346 221 
 
 Lyman v. James, 87 Vt. 486, 89 Atl. 932 1103, iioj 
 
 Lynch v. Boston Elevated Ry. Co. (Mass. 1916), 112 N. E. 488 275 
 
 Lynch v. Fiske Rubber Co., 209 Mass. 16, 95 N. E. 400, 2 N. C. C. A. 298. .834, 1053 
 
 Lynn V. Goodwin, 170 Cal. 112, 148 Pac. 927, 9 C. C. A. 915 648, 789 
 
 Lynch v. Kineth, 36 Wash. 368, 78 Pac. 923 755, 1030 
 
 Lynch V. Murphy Hotel Co., 130 App. Div. 691, 115 N. Y. S. 465, reversing 
 
 112 N. Y. S. 915 802 
 
 Lynch v. Robert P. Murphy Hotel Co., 115 N. Y. 465, 1909 304 
 
 Lynch V. Shearer, 83 Conn. 73, 75 Atl. Repr. 88 636, 858, 859, 861, 1049 
 
 Lynch v. Smith, 104 Mass. 57 855, 862 
 
 Lyons v. Erie Railway, 57 N. Y. 489 703, 1098 
 
 Mack V. Shawangunk, 98 App. Div. 577, 90 N. Y. Supp. 760 778 
 
 Macomber v. Nichols, 34 Mich. 217, 22 Ann. Rep. 522 
 
 168, 200, 206, 207, 208, 209, 210, 237, 744 
 
 Macomber v. Taunton, 100 Mass. 257 220 
 
 MacPherson v. Buick Motor Co., 145 N. Y. Supp. 462, 160 N. Y. App. 
 
 Div. 55, 138 N. Y. Supp. 224 431, 432 
 
 Madding v. State, 118 Ark. 506, 177 S. W. 410 248, 618, 932, 934, 1021 
 
 Magee v. Vaughan (D. Ct. Pa.), 212 Fed. 278, 134 C. C. A. 388 150, 1089 
 
 xciv 
 
TABI,E O^ CASES CITED 
 
 Maguire v. Middlesex R., 115 Mass. 239 1027, 1028 
 
 Mahegan v. Faber, 158 Wis. 645, 149 N. W. 397 704 
 
 Maher v. Benedict, 123 N. Y. App. Div. 579, 108 N. Y. S. 228 59i, 59S 
 
 Mahoney v. Maxfield, 102 Minn. 377, 113 N. W. 904, 14 L,. R. A. N. S. 251 
 
 632, 741, 748 
 
 Mahoney v. Met. Railroad Co., 104 Mass. 75 283 
 
 Maitland v. Martin, 86 Pa. 120 486 
 
 Majestic, The, 166 lU. S. 375, 17 S. Ct. 597 949 
 
 Malcolm v. Sims-Thompson Motor Car Co., Tex. Civ. App., 164 S. W. 
 
 924 79S 
 
 Mallory v. Saratoga L. Bridge Co., 104 N. Y. Supp. 1025 38 
 
 Manlon v. Loomis, Sanatorium, 162 App. Div. 421, 147 N. Y. S. 761 303, 389 
 
 Manly v. Abernathy, N. C, 83 S. E. 343 295 
 
 Manning v. Albee, 93 Mass. 520 510 
 
 Manning v. Conway, 192 Mass. 122, 125, 78 N. E. 401 993 
 
 Marble v. Rose, 124 Mass. 47 660, 755 
 
 Marius v. Motor Delivery Co., 146 App. Div. 608, 131 N. Y. S. 357 821, 857, 860 
 
 Mark v. District of Columbia, 37 D. C. App. 563, 37 l,- R. A. N. S. 440. . . 72, 85 
 Mark v. Fritsch, 195 N. Y. 282, 88 N. C. 380, 22 L. R. A. N. S. 632, 126 N. 
 
 Y. App. Div. 920 286, 290, 291 
 
 Mark Admr. v. St. Paul, Etc., R., 30 Minn. 493, 495 722 
 
 Markowitz v. Lindeman, 161 App. Div. 679, 150 N. Y. S. 345 851 
 
 Marks v. Stoltz, 165 App. Div. 462, 150 N. Y. S. 952, 9 N. C. C. A. 53 160 
 
 Marmet v. The State, 45 Ohio St. 63, 12 N. E. 463 125 
 
 Marsh v. Boyden, R. I. , 82 Atl. 393, 40 L. R. A. N. S. 582, 2 N. C. 
 
 C. A. 410 287, 309, 843 
 
 Marshall v. Ipswich, no Mass. 526 220, 221 
 
 Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527 
 
 288, 292, 293, 594, 596, 1023, 1061 
 
 Marsland v. Murray, 148 Mass. 91, 18 N. E. 680 758, 862, 863 
 
 Martin v. Garlock, 82 Kan. 266, 108 Pac. 92 1115, 1118 
 
 Martin v. Maxwell-Briscoe Motor Vehicle Co., 158 Mo. App. 188, 138 S. 
 
 W. 65 563, 564 
 
 Martin v. Wood, 23 N. Y. St. Repr. 457 663 
 
 Mason v. Lothrop, 73 Mass. 354 382 
 
 Mason v. Wait, 5 111. 127, 184 14 
 
 Mason v. West, 61 N, Y. App. Div. 40, 70 N. Y. S. 478, reversing 65 N. Y. 
 
 Suppl. 651, 31 Misc. 583 20s, 748, 756 
 
 Mason, Etc., R., v. Davis, 18 Ga. 679, 686 661 
 
 Mason-Staman Transp. Co. v. Wineburgh, 72 Misc. 398, 130 N. Y. S. 178. . 282 
 
 Massie v. Barker (Mass. 1916), 113 N. E. 99 728 
 
 Masterson v. N. Y. C. & H. R. R., 84 N. Y. 247 778 
 
 Mather v. Rillston, 156 U. S. 39i, i5 S. Cf. 464 162, 6cy7, 640 
 
 Mathieson v. Omaha St. Ry., 3 Neb. (unofficial) 747, 92 N. W. 639 
 
 1032, 1055, 1063 
 Matla V. Rapid Vehicle Co., 160 Mich. 639, 125 N. W. 708 1002, 1063 
 
 xcv 
 vii 
 
TABLE OF CASES CITED 
 
 Matlack v. Sea., 144 Ky. 749, 139 S. W. 93°. 2 N. C. C. A. 305 287, 292, 690 
 
 Matson v. Railway Co., 95 Minn. 477, 104 N. W. 443 244 
 
 Mattei v. Gillies, 16 Ont. Law. Rep. 558, 11 Ont. Weekly Rep. 1083 
 
 92, 95, ISS, 266, 322, 537, 551, 577, 615 
 
 Matterson v. Southern Pac. Ry., 6 Cal. App. 318, 326, 92 Pac. loi 733 
 
 Mattey v. Whittier Mach. Co., 140 Mass. 337, 4 N. E. 575 862 
 
 May V. Allison, 30 Pa. Super. Ct. 50, 1905 • • 829, 838 
 
 Mayhew v. Sutton, 71 L. J. K. B. N. S. 46, 1901 316, 336 
 
 Majmard v. Buck, 100 Mass. 40, 42 647 
 
 Maynard v. Westfield, 87 Vt. 532, 90 Atl. 504 219, 220, 754, 756 
 
 Mayo V. Boston & M. R., 104 Mass. 140 271, 729, 874 
 
 McAndrews v. CoUered, 42 N. J. Law. (13 Vr.), 189 254 
 
 McArthur v. Sears, 21 Wend. (N. Y.) 197 949 
 
 McBeth V. Attchison T. & S. F. Ry. Co., 95 Kan. 364, 148 Pac. 621 884 
 
 McCann v. Muldoon, 91 S. C. 523, 74 S. E. 386 Ann. Cas. 1914 A. 139 663 
 
 McCanna v. Silke, 75 Wash. 383, 134 Pac. 1063 148 
 
 McCarragher v. Proal, 114 N. Y. App. Div. 470, 100 N. Y. S. 208 
 
 654, 70s, 710, 71 1, 712, 862, 103s, 1050, I0S5 
 
 McCarren v. McNulty, 7 Gray 139 505 
 
 McCarter v. Ludlum, Etc., Co., 71 N. J. Eq. 330, 340, 71 Atl. 1134 85, 205, 209 
 
 McCarthy v. Nisken, 22 Minn. 90, 92 1 126 
 
 McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038 53i, 576, 583 
 
 McClung V. Penn. Taximeter Cab Co. (Penn. 1916), 97 Atl. 694 294, 667 
 
 McComas v. Strasburger Dry Goods Co., 96 Kan. 467, 152 Pac. 615 768 
 
 McConn v. Mouldoon, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914, A. 139. . 818 
 
 McConnell v. Atlantic Ave. R., ii Misc. 177, 32 N. Y. Supp. 114 901 
 
 McConnor v. Henkel, 226 U. S. 520, 33 Sup. Ct. Rep. 146 348 , 
 
 McCormick v. Hesser, ^y N. J. L. I73, 71 Atl. 55 824, 829 
 
 McCormick v. New York City, 162 App. Div. 539, 147 N. Y. S. 917 1040 
 
 McCown V. Muldrow, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914, A. 139 
 
 837, 1014, 1045, 1053, I0S7, 1058, 1075 
 
 McCray v. Sharpe, 188 Ala. 375, 66 So. 441 74i 
 
 McCreery v. United Rys. Co., 221 Mo. 18, 120 S. W. 24 9i4, I049, 1063 
 
 McCrohan v. Davidson, 187 Mass. 466, yz N. E. 553 833, 869 
 
 McCummings v. State, 132 Wis. 236, 112 N. W. 25 649, 741, 747, 765 
 
 McDonald v. Snelling, 96 Mass. 290 699 
 
 McDonald v. Yoder, 80 Kans. 25, loi Pac. 468 264, 272, 314, 696, 741, 745 
 
 McDonnell v. Columbia Taxicab Co., 168 Mo. App. 351, 151 S. W. 767. . .323, 1014 
 
 McEnroe y. Taylor, 56 Misc. 680, 107 N. Y. S. 565 552 
 
 McEvoy V. Wright, 137 Mass. 207 686 
 
 McFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 652, 143 S. W. 884 
 
 678, 690, 807, 894, 915, 1073 
 
 McFarland v. Wheeler, 26 Wend. 474 413 
 
 McFern v. Gardner, 121 Mo. App. i, 97 S. W. 972 169, 183, 187, 233, 240, 272, 
 
 309, 345, 636, 639, 649, 651, 656, 694, 709, 723, 724, 871, 1034, 1037, 1048, 1063, 1070 
 McFeters v. Pierson, 15 Col. 201, 203, 24 Pac. 1076 146 
 
 xcvi 
 
TABI,E OF CASES CITED 
 
 McGee v. Young, 132 Ga. 606, 64 S. E. 689 636, 6S4, 6s6, 659, 661, 733, 1097 
 
 McGinnis v. Studebaker Co., 75 Oregon 519, 146 Pac. 825, 147 Pac. 525 1109 
 
 McGourty v. De Marco, 200 Mass. 57, 8s N. E. 891 7ii. 842 
 
 McGraw Tire & Rubber Co. v. Griffith, 198 Fed. 566 437 
 
 McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318 399, 400, 40S> 801 
 
 McGuire v. Autocar Sales Co., 150 App. Div. 278, 134 N. Y. S. 702, 6 N. 
 
 C. C. A. 367 S66 
 
 McHarg v. Adt, 163 App. Div. 782, 149 N. Y. S. 244 597 
 
 Mcllhinney v. Philadelphia, 214 Pa. St. 44, 63 Atl. 368 824, 829, 836 
 
 Mclntire v. Hartfelder-Garbutt Co., 9 Ga. A. 324, 71 S. E. 492 579 
 
 Mcintosh V. Johnston, 145 N. Y. S. 763, 160 App. Div. 563 418 
 
 Mclntyre v. Orner, 166 Ind. 57, 62, 76 N. E. 750 
 
 181, 233, 633, 644, 649, 654, 723, 724, 738, 741, 745, 747, 756, 949, I037 
 
 McKarren v. Boston, Etc., Ry., 194 Mass. 179, 80 N. E. 477 1044 
 
 McKee v. Nelson, 4 Cowen 355 1067 
 
 McKeever v. Ratcliffe, 218 Mass. 17, 105 N. E. 552 578 
 
 McKernan v. Detroit C. St. Ry., 138 Mich. 519, loi N. W. 812 778 
 
 McKiernan v. Lehmaier, 85 Conn, in, 81 Atl. 969 581, 847, 992 
 
 McKillop V. Reich, 76 N. Y. App. Div. 334, 78 N. Y. S. 458 39i 
 
 McKinney v. Neil, i McLean, 540 Fed. Cas. 8865 186 
 
 McKinzie v. Fisher-Gibson Co. (Ind. App.), 108 N. E. 867 387 
 
 McLain v. W. Va. Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. 
 
 A. N. S. 561, Ann. Cas. 1915 O. 956 39° 
 
 McLaughlin v. Griffin, 155 Iowa 302, 135 N. W. 1 107 870 
 
 McLaughlin v. Pittsburgh Rys. Co. (Penn. 1916), 97 Atl. 107 679,772 
 
 McManus v. Wolverton, 19 N. Y. Supp. 546 309 
 
 McNeal v. McKain, 33 Okla. 449, 126 Pac. 742, 41 L. R. A. N. S. 775 246, 593 
 
 McNeil v. Boston Ice Co., 173 Mass. 570 862 
 
 McPhee v. Scully, 163 Mass. 219, 39 N. E. 1007, 40 L. R. A. 143 345 
 
 Meaney v. Kehoe, 181 Mass. 424, 6 N. E. 925 148 
 
 Medlin v. Spazier, 23 Cal. 242, 137 Pac. 1078, 8 N. C. C. A. 581 844 
 
 Meenagh v. Buckmaster, 26 App. Div. 451, 50 N. Y. Supp. 85, Am. Dig. 
 
 1898, Sec. 47 780 
 
 Meier v. Wagner, 27 Cal. App. 579, 150 Pac. 797 308, 840, 1050, 1057 
 
 Meister & Sons Co. v. Wood Co., 26 Cal. App. 584, 147 Pac. 981 547 
 
 Mellhenney v. Philadelphia, 214 Pa. St. 44 223 
 
 Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 202, 62 N. E. 379 163 
 
 Memphis v. State, Tenn. 179 S. W. 631 814, 815 
 
 Memphis St. Ry.| Co. v. Rapid Transit Co., Tenn. 179 S. W. 635 816, 817 
 
 Memphis St. Ry. Co. v. Stratton, 131 Tenn. 620, 176 S. W. 105 L. R. A. N. 
 
 S. 1915 E. 724 891 
 
 Mendleson v. Van Rensselaer, 118 N. Y. App. Div. 516, 103 N. Y. S. 578 
 
 636, iioi, 1107, 1108 
 
 Mendon v. Worcester, 2 Allen 463 (Mass.) 35 
 
 M-enefee v. Whisler, 169 Iowa 19, 150 N. W. 1034 284 
 
 Menges v. Edwards Motor Car Co., 165 App. Div. 73, 150 N. Y. S. 989. . 602 
 
 xcvii 
 
TABI,i; OF CASES CITED 
 
 Merklinger v. Lambert, •;(> N. J. Law 806, 72 Atl. 119 
 
 6S9, 660, 736, 991, 1002, 1003, 1049 
 
 Merrell v. Dawson, 88 Conn. 710, 92 Atl. 663, 8 N. C. C. A. 582 555 
 
 Merrill v. Caro Ins. Co., 70 Wash. 482, 127 Pac. 122 547 
 
 Mertz V. Conn. Co., 112 N. Y. 166 N. E. 166 896 
 
 Mertz V. Detroit El. Ry., 125 Mich. 1 11, 83 N. W. 1036 1070 
 
 Meservey v. Lockett, 161 Mass. 333, 37 N. E. 310 288 
 
 Messenger v. Dennis, 137 Mass. 197 862 
 
 Messer v. Bruening, 25 N. D. 599, 142 N. W. 158, 48 L. R- A. N. S. 945. 
 
 8 N. C. C. A. 1086 l(>^l(>i 
 
 Metallic C. C. Co. v. Fitchburg R., 109 Mass. 2^7, 282 6g6 
 
 Met. St. R. R. V. Powell, 89 Ga. 601, 611,. 16 S. E. 118 m 
 
 Mexico, The, 78 Fed. Repr. 655 N. Y 345 
 
 Meyer v. Creighton, 83 N. J. L. 749, 85 Atl. 344 312, 7I3 
 
 Meyer v. Houck, 85 la. 319, 52 N. W. 362 635 
 
 Meyers v. Tri-State Automobile Co., 121 Minn. 68, 140 N. W. 184, 44 L. 
 
 R. A. N. S. 113, 14 N. C. C. A. 30, 6 N. C. C. A. 369 568, 869 
 
 Michigan City v. Boeckling, 122 Ind. 39, 23 N. E. 518 777 
 
 Michigan Commercial Ins. Co. v. Wills, 57 Ind. App. 256, 106 N. E. 725 . . 522 
 
 Mickelson v. Fischer, 81 Wash. 423, 142 Pac. 1160 708, 844, 1087 
 
 Middlesex Turnpike Co. v. Wentworth, 9 Conn. 371 6 
 
 Miller v. B. & N. St. Ry., 197 Mass. 535, 83 N. E. 99o 775, 797 
 
 Miller v. Jenness, 84 Kan. 608, 114 Pac. 1052, 34 L- R. A. N. S. 782 1063 
 
 Miller v. New York Taxicab Co. (App. Term 1910), 120 N. Y. Supp. 899 
 
 656, 1036, 1037, 1 125 
 
 Miller v. Pendleton, 74 Mass. 548 1029 
 
 Miller v. Tidemann, 249 Pa. St. 234, 94 Atl. 835 837, 850 
 
 Miller v. Widemann, 249 Pa. St. 234, 94 Atl. 835 I7S 
 
 Mills V. Armstrong, L. R. 13 App. Cas. i 779 
 
 Millsaps V. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. N. S. ii77 
 
 673, 819, 821, 828 
 
 Milne V. Kane, 64 Wash. 254, 116 Pac. 659, 36 L. R. A. N. S. 88 S56 
 
 Milwaukee, Etc., R. v. Arms, 91 U. S. 489 334, 361, 617, 972 
 
 Milwaukee, Etc., R. v. Kellog, 94 U. S. 469, 474 663, 694, 696, 701, I059, 1069 
 
 Minckowski v. Dodge, Mich., 149 N. W. 1061 292 
 
 Minneapolis v. Beckwith, 120 U. S. 26, 9 S. Ct. 207 136 
 
 Minneapolis Ry. Co. v. Odegaard (C. C. A. 8th Cir.), 182 Fed. 56, 104 
 
 C. C. A. 496' 894, 895 
 
 Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214 S98, 847. 850 
 
 Minor v. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. N. S. 1178, 2 
 
 N. C. C. A. 309 820, 847, 1052 
 
 Missell V. Hayes, 86 N. J. L. 348, 91 Atl. 322 593 
 
 Miss. & Mo. R. R. Co. v. Ward, 2 Black. 485 203 
 
 Mo. K. & T. Ry. v. Rogers, 91 Tex. 52, 58, 43 N. E. 688 778 
 
 Mo. Pac. Ry. Co. v. Hildebrand, 52 Kas. 289, 34 Pac. 738 1033 
 
 xcviii 
 
TABI,]; OP CASeS CITBD 
 
 Missouri Pac. Ry. v. Humes, 115 U. S. S12, 521, 6 Sup. Ct. no, 29 L,. Ed. 
 
 463 361. 1113, 1119 
 
 Mitchell V. Charleston, L. & P. Co., 45 S. C. 146, 151, 160, 22 S. E. 767. . . 723, 798 
 
 Mitchell V. Crassweller, 13 C. B. 237 543 
 
 Mitchell V. Rochester Ry., 151 N. Y. 107, 45 N. E. 54 1096, 1097 
 
 Mitchell V. The State, 44 Tex. Critn. R. 228, 70 S. W. 208 954 
 
 Mitchell V. Wall, iii Mass. 281 383 
 
 Mobile V. Gentry, 170 Ala. 234, 54 So. 488 122, 124 
 
 Mobile Light & R. Co., v. Hartwell, go South. 883, 163 Ala. ^^ 904 
 
 Mobin V. Mark, 113 Minn. 190, 129 N. W. 383, 41 L. R. A. N. S. 346 298 
 
 Mody V. Greyson, 4 L. R. Ex. 49 495 
 
 Moebus V. Herrman, 108 N. Y. 349, 15 N. E. 415 842 
 
 Molin V. Mark, 113 Minn. igO; 129 N. W. 383 298 
 
 Molway v. Chicago, 239 111. 486, 88 N. E. 484 205, 208, 215 
 
 Monahan v. Worcester (City) 150 Mass. 439, 23 N. E. 228 540 
 
 Monroe v. Hartford St. Ry., 76 Conn. 201, 206, 56 Atl. 498 304 
 
 Monroe v. Leach, 48 Mass. 274 , . 685 
 
 Moody V. Louisville Ry. Co., 153 Ky. 14, 154 S. W. 384 702 
 
 Moody V. Osgood, 60 Barb. 644 (N. Y.) 1055 
 
 Moody V. Rowell, 34 Mass. 408 1072 
 
 Mooers v. Larry, 81 Mass. 451 404 
 
 Moon V. Matthews, 227 Pa. St. 488, ^(> Atl. 219 591, 597, 1019 
 
 Mooney v. Connecticut R. L. Co., 154 Mass. 407, 409, 28 N. E. 352 163 
 
 Mooney v. Miller, 102 Mass. 217, 220 511 
 
 Moore v. The State of Illinois, 14 How. Reps. (U. S. S. Ct.) 13, 20 357 
 
 Morbrose & Linn Co. v. Flick, 187 Mo. App. 528, 174 S. W. 189 462, 510, 512 
 
 Morena v. Winston, 194 Mass. 379, 80 N. E. 473 156 
 
 Morey v. Town of Newfane, 8 Barb, 645, 648, Selden, J 213 
 
 Morier v. St. Paul, Etc., 31 Minn. 351, 17 N. W. 952 534, 543 
 
 Morley v. Consol. Mfg. Co., 196 Mass. 257, 81 N. E. 993 484, 509, 510 
 
 Morony v. Chase, 100 Mass. 85 371 
 
 Morrell v. Skene, 64 Misc. 185, 119 N. Y. Supp. 28 975, 982 
 
 Morris v. Fisk Rubber Co., 150 Ala. 150, 43 So. 483 406, 426 
 
 Morris v. Interurban St. Ry. Co., 100 N. Y. App. Div. 295, 91 N. Y. S. 479 
 
 199, 654, 898, 902, 993 
 
 Morrison v. Lawrence, 186 Mass. 456, 462, 72 N. E. 91 632,1077 
 
 Morris v. Met. St. Ry., 63 N. Y. App. Div. 78, 71 N. Y. S. 321 778 
 
 Morris v. The State, 35 Tex. Crim. Reps. 313, ZZ S. W. 539. .793, 794, 937, 966, 1019 
 
 Morristown Auto Bus Co. v. Madison, 85 N. J. L. 59, 88 Atl. 829 121, 122 
 
 Morton v. Moore, 81 Mass. 573 199, 267 
 
 Moses V. P., F. W. & C. R. R. Co., 21 111. 516, 523 204 
 
 Moss V. More, 18 Johns. N. Y. 128, 129 6 
 
 Mosso V. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941 831, 837, 839, 1087 
 
 Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 Pac. gg 
 
 713, 734. 525, 527, 1012, 1089 
 
 Moynihan v. Hills, 146 Mass, 586, 16 N. E. 574 607 
 
 xcix 
 
TABLE Ot CASES CittD 
 
 MuUally v. Greenwood, 127 Mo. 138, 146, 29 S. W. looi 607 
 
 Mullen V. Owosso, 100 Mich. 103, 58 N. W. 663 778 
 
 MuUer v. Erd, 14 N. Y. 597 S14 
 
 Mulligan v. Curtis, 100 Mass. 512 862 
 
 Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413 105, 107, 356, 357 
 
 Munroe v. Carlisle, 176 Mass. 199 686 
 
 Munroe v. Merrill, 72 Mass. 236 371 
 
 Munson v. De Tamble Motors Co., 88 Conn. 415, 91 Atl. 531, L. R. A. 1915 
 
 " A.881 (note) : 468 
 
 Murdock v. Warwick, 70 Mass. 180 156 
 
 Murley v. Roche, 130 Mass. 330 856 
 
 Murphy v. Armstrong & Co., 167 Mass. 199, 45 N. E. 93 819, 833 
 
 Murphy v. Meachara, i Ga. App. 15s, 57 S. E. 1046 
 
 636, 656, 696, 700, 704, 723, 725, 856 
 Murphy V. N. Y. City Ry. Co., 58 Misc. 237, 108 N. Y. S. 1021 
 
 1049, 105a, 1102, 1104, 1105, 1106 
 Murphy v. Wait, 102 N. Y. App. Div. 121, 92 N. Y. S. 253 
 
 205, 211, 636, 654, 656, 740, 745, 756, 764 
 
 Murphy v. Worcester, 159 Mass. 546, 34 N. E. 1080 271 
 
 Murray v. Boston Ice Co., 180 Mass. i6s, 61 N. E. lOOi . .' 777 
 
 Murray v. Buel, 74 Wis. 14 1126 
 
 Muster v. Chicago, Etc., R. 61 Wis. 325, 21 N. W. 223 1034, 1055 
 
 Muth V. St. Louis, Etc., Ry., 87 Mo. App. 434 1063 
 
 Myers v. Springfield, 112 Mass. 489 221 
 
 Myers v. Winona Interurban Ry. Co., 58 Ind. App. 516, 106 N. E. 377 . . . 1006 
 
 Nadeau v. Sawyer, 73 N. H. 70, 59 Atl. 369 290, 64s, 649, 654, 667, 709, 756 
 
 Nason v. West, 6i N. Y. App. Div. 40, reversing 65 N. Y. Suppl. 651, 31 
 
 Misc. 583 230, 750 
 
 National Cash Register Co. v. Williams, 161 Ky. 550, 171 S. W. 162, 164 S. 
 
 W. 112 573. 1089 
 
 National Casket Co. v. Power, 137 Ky. 156, 125 S. W. 279 295, 1115, 1042 
 
 National Docks Railway Co. v. Pennsylvania R. Co., 54 N. J. Eq. (9 Dick) 
 
 10 258 
 
 National Motor Vehicle Co. v. Kellum (Ind.), 109 N. E. 196, 9 N. C. C. A. 
 
 53, 1916 606 
 
 Navailles v. Dielman, 124 La. 421, 50 So. 449 720, 723, 724, 181 
 
 Nave V. Flack, 90 Ind. 205 651 
 
 Naylor v. Haviland, 88 Conn. 256, 91 Atl. 186, 8 N. C. C. A. 584 844 
 
 Neal V. Rendall, 98 Me. 69, 56 Atl. 209 777 
 
 Needy v. Littlejohn, 137 Iowa 704, 115 N. W. 483 
 
 267, 268, 274, 279, 280, 649, 693, 706, 709, 750, 756, 1034, 1049 
 
 Neel V. Smith (Iowa 1914), 147 N. W. 183 1051, 1102 
 
 Neff V. Brandeis, 9 Neb. 11, 135 N. W. 232, 39 L. R. A. (N. S.) 933 545, 563 
 
 Neff V. Wellesley, 148 Mass. 487, 20 N. E. in 337, 866, 869 
 
 Neil V. Detroit United Ry., 180 Mich. 593, 152 N. W. 959 907 
 
TABLE OF CASES CITED 
 
 Nelson v. Halland, 127 Minn. 188, 149 N. W. 194 76S, I108 
 
 Nelson v. State Board of Health, 186 Mass. 330, 71 N. E. 313 3S 
 
 Nemzer v. Newkirk Ave. Automobile Co., 91 Misc. 13, 154 N. Y. S. 117 . iSi 
 
 Nesbit V. Crosby, 74 Conn. 554, 565, 51 Atl. 550 1049 
 
 Nesbit V. Garner,-7S Iowa 314, 39 N. W. 516 ^^^, 780, 796, 1044 
 
 Neubrand v. Kraft. 169 Iowa 444, 151 N. W. 455 400, 404 
 
 New London v. Miller, 60 Conn. 112, 116, 22 Atl. 499 S2 
 
 N. Y. Transp. Co. v. Garside, 157 Fed. Repr. 521, 85 C. C. A. 285 724 
 
 Newark Public Schools v. Wright, Del. Super., 88 Atl. 462 7 
 
 Newcomb v. Albertson, 8s N. J. L- 435, 89 Atl. 928, 4 N. C. C. A. 783 ... 601 
 
 Newcomb v. Boston Prot. Dept., 146 Mass. 596, 600, 16 N. E. SSS 
 
 loi, 302, 361, 6q2, 637, 654, 692, 70s, 708, 711, 974 
 
 Newell V. Smith, 58 N. Y. Supp. 1025, 28 Misc. 182 1102 
 
 New Haven Taxicab Co. v. Connecticut Co., 87 Conn. 709, 89 Atl. 92 6s6 
 
 New Orleans, Etc., R. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785 1 117 
 
 New York Central R. R. v. Maidraent, 168 Fed. Repr. 21, 93 C. C. A. 413, 
 
 21 L.R. A. N. S. 794 189, 874, 880, 88r, 882, 889 
 
 N. Y. L. E. & W. R. V. N. J. Elec. Ry., 60 N. J. L. 338. 343, 38 Atl. 828 
 
 388, 404, 544, 778 
 
 N. Y. L,. E. & W. R. v. Steinbrenner, 18 Vroora 161 (N. J.) 778 
 
 New York Motor Car Co. v. Greenfield, 145 N. Y. S. ZZ ( 1913) 1043 
 
 New York Transp. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285 
 
 282, 634, 710, 842, 1033, 1056, 1059, 1070, 1084, 1097 
 
 Newport v. Merkel Bros. Co., 156 Ky. 580, 161 S. W. 549 124, 137 
 
 Newton v. Joyce, 166 Mass. 83, 44 N. E. 116 41 
 
 Nicholas v. Kelley, 159 Mo. App. 20, 139 S. W. 248 95, 554 
 
 Nichols V. Great W. Ry., 27 U. C. (Q. B.) 382 779 
 
 Nichols V. Munsel, 115 Mass. 567 638, 1040 
 
 Nicholson v. Stillwater, 208 N. Y. 203, loi N. E. 858 219 
 
 Nickels v. Prewitt Auto Co., Tex. Civ. App., 149 S. W. 1094 490, 491 
 
 Nicol V. Oregon-Washington R. & Navigation Co., 71 Wash. 409, 128 
 
 Pac. 628, 43 L. R. A. N. S. 174 884 
 
 Nims v. Mt./Hermon School, 160 Mass. 177, 182, 35 N. E. 776 S38, 555 
 
 Nitroglycerine Case, The, 15 Wall. 524, 536 617, 645, 651 
 
 Noakes v. N. Y. Central R., 121 N. Y. App. Div. 716, 106 N. Y. Supp. 522 
 
 189, 787, 889, 1088 
 
 Nolen V. Riechman, Dist. Ct. Tenn. 225 Fed. 812 814, 815 
 
 Noltmier v. Rosenberger, 131 Minn. 369, 155 N. W. 618 1039 
 
 Noonan v. Consol. Tr. Co., 35 Vroom 579 (N. J.), 46 Atl. 770 778 
 
 Norris v. Saxton, 158 Mass. 46, 32 N. E. 954 293, 294 
 
 Norris v. Wolseley Tool and Motor Car Co., 52 Solicitors' Journal 116 . . 562 
 
 Northern Central Ry. v. Geis, 31 Md. 357 645, 736 
 
 Northern Pacific Ry. Co. v. Tripp., 220 Fed. 286, 8 N. C. C. A. -1041 887 
 
 Northern Securities Co. v. United States, 193 U. S. 197 138 
 
 Northumberland Telephone & Telegraph Co. v. Yeiser, 141 Ky. 15, 131 
 
 S. W. 1049, 31 L. R. A. N. S. 1137 754 
 
TABLE OF CASBS CITED 
 
 Northup V. Robinson, 33 R. I. 496, 82 Atl. 392, 2 N. C. C. A. 439 582 
 
 Norton v. Sewall, 106 Mass. 143 430, 700 , 
 
 Noyes v. Boscawen, 64 N. H. 361, 368, 369, 10 Atl. 690 778 
 
 Nun«s V. Perry, 113 Mass. 276 1066 
 
 O'Beirne v. Stafford, 87 Conn. 354, 87 Atl. 743, 46 L. R. A. N. S. 1183, 7 
 
 N. C. C. A. 858 310, 600 
 
 O'Brien v. Blue Hill St. Ry., 186 Mass. 447, 71 N. E. 9Si 268, 740, 894 
 
 O'Brien v. Hudner, 182 Mass. 381, 65 N. E."788 331, 337, 862 
 
 O'Brien v. McGlinchy, 68 Maine 55 733 
 
 O'Brien v. Washington Water Power Co., 71 Wash. 688, 129 Pac. 391, 6 
 
 N. C. C. A. 31S 277 
 
 O'Connor v. De Marco, 200 Mass. 57, 85 N. E. Repr. 891 711 
 
 ODonnell v. Johnson, Vol. 36, R. I. 308, 90 Atl. 165 288, 290 
 
 O'Donnell v. O'Neil, 130 Mo. App. 360, 109 S. W. 815 
 
 168, 169, 649, 743, 748, 757, 1032 
 
 O'Donoghue v. Moon, go L. Times R., N. S. K. B. Div. 843 6 
 
 O'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36 
 
 207, 636, 658, 661, 712, 760, 818, 820, 82s, 826, 828, 84s, lOOI 
 
 O'Hara v. Gould, 84 N. J. I,- 583, 87 Atl. 117 767 
 
 O'Hara v. Nelson, 71 N. J. Eq. 161, 63 Atl. 836 239, 249, 251, 418, 646 
 
 O'Hare v. Gloag, 221 Mass. 24, 108 N. E. 566 191, 1065 
 
 Ohio & M. R. V. Hecht, 115 Ind. 443, 449, 17 N. E. 297 659, 1091 
 
 Ohio Electric Ry. Co. v. Weingertner, 93 Ohio St. 124, 112 N. E. 203 880 
 
 Oldfield V. N. Y. & H. R., 3 E. D. Smith 103, affirmed 14 N. Y. 310 
 
 683, 684, 857, 862, 864, 9S7, 994, 1 122 
 Olds Motor Works v. Churchill (Tex. Civ. App. 1915), 175 S. W. 785 . .440, 1022 
 Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. 
 
 N. S. 560, Ann. Cas. 1913, B. 689, 3 N. C. C. A. 79 431, 432 
 
 Oleson V. Brown, 41 Wis. 413 1108 
 
 Oliver v. Washington Mills, 93 Mass. 268 52, 62 
 
 Olmstead v. Greenfield, 155 Wis. 452, 144 N. W. 987 224 
 
 Olsen v. Luck, 103 Wis. 33, 79 N. W. 29 779 
 
 Olson V. Holway, 152 Wis. i, 139 N. W. 422 295 
 
 Omaha St. R. v. Larson, 70 Neb. 591, 596, 97 N. W. 824 
 
 130, 698, 701, 737, 902, 904, looi, 1031, 1062, 1063, 1070 
 
 Omaha & R. V. R. v. Cholette, 33 Neb. 146, 49 N. W. 1114 918 
 
 Omaha & R. V. R. v. Talbot, 48 Neb. 627, 67 N. W. 599 778 
 
 O'Neil V. Potts, Minn., 130 Minn. 353, 153 N. W. 856 297, 1045 
 
 O'Neil V. Redfield, 158 Iowa 246, 139 N. W. SSS 712, 1003, 1024 
 
 Opinion of Att. Gen., 35 Pa. Co. Ct. Rep. 512 74 
 
 Opinion of the Justices, 163 Mass. 589 41 
 
 Opinion of the Justices to the General Court, 196 Mass. 603, 622 61, 63 
 
 Opinion of the Justices to the Senate, 195 Mass. 607, 608 61, 69 
 
 O'Reilly v. Davis, 136 App. Div. 386, 120 N. Y. Supp. 883 1049, lOSS 
 
 Osgood V. Maxwell, N. H. 1916, 95 Atl. 954 862 
 
 cii 
 
TABI,e OF CASUS CITfiD 
 
 Oshkosh V. Campbell, 151 Wis. 567, 139 N. W. 316 298 
 
 Ostermeier v. Kingman Co., 255 Mo. 128, 164 S. W. 218 771, 852 
 
 Oswald V. Utah Light &JRy. Co., 39 Utah 245, 117 Pac. 46 90S, 907, 91S 
 
 Otis V. JanesviUe, 47 Wis. 422, 2 N. W. 783 779 
 
 Ottomeier v. Hornburg, 50 Wash. 316, 97 Pac. 235 552 
 
 Ouellette v. Superior Motor & Machine Works, 157 Wis. 531, 147 N. W. 
 
 1014, 52 L. R. A. N. S. 299, 6N. C. C. A. 357 563,839,845 
 
 Oulighan v. Butler, 189 Mass. 287, 75 N. E. .726 250, 560, 686, ^^^, 990, 991 
 
 Ouverson v. Grafton, 5 No. Dak. 281, 293, 65 N. W. 676 778 
 
 Overland Sales Co. of New York v. Kaufman, 76 Misc. 230, 134 N. Y. S. 
 
 599 407 
 
 Overton v. Bush, 2 Ala. App. 623, 56 So. 852 291, 998 
 
 P. H. Gill Forge & Machine Works v. Detroit-Cadillac Motor Car Co., 
 
 139 App. Div. 205, 123 N. Y. Supp. 621 408, 410 
 
 Pabst v. Rapid Safety Filter Co., 56 Misc. 445, 107 N. Y. Suppl. 163 ..1103, 1107 
 
 Pacific Express Co. v. Seibert, 142 U. S. 339 135 
 
 Pacific Gas & Electric Co. v. Roberts, 168 Cal. 420, 143 Pac. 700 57 
 
 Packard v. New York, O. & W. Ry. Co., 160 App. Div. 856, 146 N. Y. S. 
 
 878, 7 N. C. C. A. 543 884 
 
 Page y. Bent, 2 Met. 371 513 
 
 Page V. Bucksport, 64 Maine 51, 53 693 
 
 Painter v. Davis, 113 Minn. 217, 129 N, W. 368 150 
 
 Palmer v. Andover, 56 Mass. 600 219, 650 
 
 Palmer v. Chicago, St. L,. & P. R., 112 Ind. 250 924 
 
 Palmer v. Dearing, 93 N. Y. 7, 10 945 
 
 Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369 398 
 
 Panama, City of, loi U. S. 453, 465 1077 
 
 Pandle v. Barden (Tex. Civ. App.), 164 S. W. 1063 407, 408 
 
 Pangburn v. Buick Motor Co., 151 App. Div. 756, 137 N. Y. S. 37 1005 
 
 Pankey v. Little Rock Ry. & Electric Co., Arkansas 1915, 174 S. W. 1170 . 913 
 
 Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625 703, 1097 
 
 Pannell v. Allen, 160 Mo. App. 514, 142 S. W. 482 325, 1020, 1107, 1108 
 
 Pantages v. Seattle Electric Co., 55 Wash. 453, 104 Pac. 629 894, 903, IQ27 
 
 Papic V. Preund, Mo. App. 1916, 181 S. W. 1161 851 
 
 Papineau v. Bacon, no Mass. 320 371 
 
 Park Springs Distilling Co. v. Employer's Indemnity Co., 159 Ky. 460, 
 
 169 S. W. 730 525 
 
 Parke County v. Sappenfield, 6 Ind. App. 577, 582, 33 N. E. 1012 688 
 
 Parker v. Adams, 53 Mass. 415, 167, 218, 266, 284, 289,, 1008 
 
 Parker v. Barnard, 135 Mass. 116, 120 631 
 
 Parker v. Cohoes, 74 N. Y. 610 221 
 
 Parker v. Porter Pub. Co., 69 Maine 174 1028 
 
 Parker v. Sloan, 42 Utah 526, 131 Pac. 1171 614 
 
 Parker v. Sweet, Tex. Civ. App., 127 S. W. 881 4 
 
TABLB 03? CASES CITED 
 
 Parker v. Wilson, 179 Ala. 339, 60 So. 150, 43 L. R- A. N. S. 87, 8 N. 
 
 C. C. A. 300 247, 538, 542, 591, 594, 596 
 
 Parkes v. Lindenmann, 161 Wis. loi, 151 N. W. 787 839 
 
 Parks V. Hall, 19 Mass. 206, 21 1 4SS 
 
 Parmelee v. Lowitz, 74 111. 116 802 
 
 Parmelee v. McNulty, 19 111. 556 802 
 
 Parrott v. Barney, 18 Fed. Cas. No. 10773, at p. 1247 645 
 
 Parry v. Squair, 79 Hit App. 324 396 
 
 Parsons v. The State, 21 Ala. 301 , 945 
 
 Parsons v. Wisner, 1 13 N. Y. Supp. 922, 52 Misc. 612 545 
 
 Pascagoula St. Ry. Co. v. McEachern, Miss. 1916, 69 So. 185 301 
 
 Paterson v. Chicago M. & St. P. Ry. Co., 95 Minn. 57, 103 N. W. 621 
 
 80s, 1066, 1071, iioi, 1 102 
 
 Patten v. Sturgeon, 214 Fed. 65, 130 C. C. A. 505, 8th Cir 4 
 
 Patterson v. Adam Casualty Co., 119 Minn. 308, 138 N. W. 281, 48 L. R. 
 
 A. N. S. 184 S24 
 
 Patterson v. Adams, 119 Minn. 283, 137 N. W. 1112 606 
 
 Patterson v. Chicago, M. & St. P. Ry. Co., 95 Minn. 57, 103 N. W. 621 . . 808 
 
 Patterson v. Detroit United Ry., Mich. 1916, 153 N. W. 670 915 
 
 Patterson v. Kates, 152 Fed. Repr. 481 S77i 579 
 
 Patterson v. Millican, 12 Ala. App. 324, 66 So. 914 i49,- i50, 552, 638 
 
 Patterson v. Standard Accident Co., 178 Mich. 288, 144 N. W. 491, Ann. 
 
 Cas. 1915 A. 491 524 
 
 Paul V. Clark, 146 N. Y. S. 1104, 161 N. Y. App. Div. 957, 8 N. C. C.A. ^yi 857,858 
 Payne v. Great Northern Ry. Co., 148 N. W. 889, 8 N. C. C. A. 1045 .... 890 
 
 Payne v. Halsted, 44 111. App. 97 399, 400, 405 
 
 Peach V. Bruno (1916 Mass.), 113 N. E. 279 567 
 
 Pease v. Gardner, 113 Maine 264, 93 Atl. 550 544, S69, 77i 
 
 Pease v. Montgomery, iii Maine 582, 88 Atl. 973 553 
 
 Peckham v. Ashhurst, 18 R. I. 376, 378, 28 Atl. 337 488 
 
 Peevehouse v. Smith, Tex. Civ. App., 152 S. W. 1196 4 
 
 Pegg V. City of Columbus, 80 Ohio St. 367, 89 N. E. 14 71, 76, 113, 127 
 
 Pekarck V. Myers, is^Iowa 206, 140 N. W. 409 750 
 
 Pendroy v. Great Northern Ry., 17 N. D. 433, 117 N. W. Repr. 531 
 
 657, 702, 788, 882, 889 
 
 Pennewill v. CuUen, 5 Har. 238, 241 (Del.) 801 
 
 Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 28 N. E. 172 729 
 
 Penn. Co. v. Roney, 89 Ind. 453 188, 730 
 
 Pennsylvania R. v. Righter, 42 N. J. L. 180 658, 659 
 
 People v. Barnes, 182 Mich. 179, 148 N. W. 400 151, 934, 935, 977, IQ42 
 
 People v. Bell, 148 N. Y. S. 753 (N. Y. Co. Ct.) 1914 120 
 
 People V. Buddensieck, 103 N. Y. 487, 9 N. E. 44, 57 Am. Rep. 766 432, 969 
 
 People V. Busse, 231 111. 251, 25s, 83 N. E. 175 £^ 
 
 People v. Cahill, 11 Cal. App. 685, 106 Pac. 115 348, 1030 
 
 People V. Chapman, 88 Misc. 469, 152 N. Y. S. 204 120 
 
 People V. Colon, 148 N. Y. S. 321, 85 Misc. 229 609 
 
TABL15 OF CASUS CITED 
 
 People V. Darragh, 126 N. Y. S. 522, 141 App. Div. 408 934> 942 
 
 People V. DeGraff, 107 N. Y. Supp. 1038 3SS 
 
 People V. Diller, 24 Cal. App. 799, 142 Pac. ^<yJ 46 
 
 People V. Dow, 155 Mich. 115, 118 N. W. 745 92, 322 
 
 People V. Draper, 15 N. Y. 532, 543 14 
 
 People, ex rel., Kemmler v. Durston, 119 N. Y. 569, 24 N. E. 6, 7 L. R. 
 
 A. 715, 16 Am. St. Rep. 859 127 
 
 People V. Eastwood, 14 N. Y. 4 Kernan 562 343, 344, 1067, 1069 
 
 People V. Ellis, 88 N. Y. App. Div. 471, 85 N. Y. S. 120 112, 355, 367 
 
 People V. Ericsson, 263 111. 368, 105 N. E. 315, 191S C. 183 418 
 
 People V. Finley, 27 Cal. App. 291, 149 Pac. 779 97 
 
 People V. Foren, 25 Cal. 364 625, 938 
 
 People V. French, 138 N. Y. Supp. 337 345 
 
 People V. Hammond, 177 Mich. 416, 143 N. W. 244 348 
 
 People V. Hanna, 136 N. Y. S. 162 66 
 
 People V. Hayes, 66 N. Y. Misc. Reps. 606 45, 95, 120, 318 
 
 People V. Kipley, 18 Nat. Corp. Repr. (111.) 874 36 
 
 People V. MacWilliams, 91 N. Y. App. Div. 176, 86 N. Y. S. 357 
 
 20, 26, 44, 48, 238, 537 
 
 People V. Mather, 4 Wend. 259 970 
 
 People V. McGram, 184 Mich. 233, 150 N. W. 836 118 
 
 People V. Melius, i N. Y. Crim. Reps. 39 184, 611, 953 
 
 People V. Oak Park, 266 111. 365, 107 N. E. 636 419 
 
 People V. Olsen, 80 Cal. 122, 22 Pac. 125 946 
 
 People V. Payne, 129 N. Y. S. 1007 (Co. Ct.) 353 
 
 People V. Pearne, 118 Cal. 154, 50 Pac. 376 343, 929, 947, 966 
 
 People V. Pennsylvania R. Co., 96 Atl. 652, 251 Pa. St. 275 883 
 
 People V. Powell, 63 N. Y. 92 926, 965 
 
 People, ex rel., Hainer v. Prison Keeper, 190 N. Y. 315, 322, 83 N. E. 44. 
 
 95, 111,112,199,326 
 
 People V. Reppin, Spec. Sess., 126 N. Y. S. 169 358 
 
 People V. Reutiraan, 85 Misc. 233, 148 N. Y. S. 612 (N. Y. Gen. Sess.) 182 361 
 People V. Rosenheimer, 209 N. Y. 115, 102 N. E. 530, 46 L. R. A. N. S. 
 
 977i Ann. Cas. 1915, A. 161, reversing 128 N. Y. S. 1093 45, 46 
 
 People V. Scanlon, 132 N. Y. App. Div. 528, 117 N. Y. Supp. 57 
 
 279, 334, 586, 609, 696, 933, 954, IQ49, 1051 
 People v. Schneider, 139 Mich. 673, 679, 103 N. W. 172, 69 L. R. A. 345, 5 
 
 Ann. Cas. 790 26, 43, 45, 117, 118, 179, 238, 537, 1041 
 
 People ex rel. Kane v. Sloane, 98 N. Y. App. Div. 450 360 
 
 People V. Smith, 156 Mich. 173, 120 N. W. 581 3, 8 
 
 People, ex rel., Corn Hill Realty Co. v. Stroebel, 156 App. Div. 457, 141 
 
 N. Y. S. 1014 418 
 
 People V. Treadwell, 69 Cal. 226, 236 472 
 
 People V. Untermeyer, 153 App. Div. 176, 138 N. Y. S. 334 120 
 
 People ex rel. Cavanagh v. Waldo, 72 Misc. 416, 131 N. Y. S. 307 (Sup.) 119 
 
 People v. Walsh, 96 111. 232 195 
 
 cv 
 
TABLE Of CASUS CITED 
 
 People V. Winston, 155 App. Div. 907, 139 N. Y. S. 1072 353 
 
 People V. Zmudzinski, 141 N. Y. S. |42 355 
 
 Peoria Bridge, Etc., v. Loomis, 20 111. 235 179, 1113 
 
 Perkins v. Boardman, 80 Mass. 481, 483 414 
 
 Perkins v. Galloway, Ala. 1916, 69 So. 875 677, 795 
 
 Perkins v. Stead, 23 Times I,. Reps. (Eng. K. B.) 433 S3i, S6s 
 
 Perkins v. Stickney, 132 Mass. 218 1071 
 
 Perley v. Balch, 40 Mass. 283 461 
 
 Perez v. New Orleans, Etc., R., 47 La. Ann. 1391, 17 So. 869 40S 
 
 Perlstein v. Am. Exp. Co., 177 Mass. 530, S9 N. E. 194 . .2891 529, 548, 550, 581, 710 
 
 Peters v. Cuneo, 123 N. Y. App. Div. 740, 108 N. Y. S. 264 849 
 
 Peters v. Streep, 138 N. Y. S. 146, App. Term 1913 1104 
 
 Pfeiffer v. Radke, 142 Wis. 512, 125 N. W. 934 279, 703, 711, 750, 1044 
 
 Philadelphia, Etc., R. R. v. Derby, 14 How. 468 236, 585, 778, 806, 848 
 
 Phillips V. Chanslor-Canfield Midway Oil Co., Cal. Ind. Ace. Com., 9 N. 
 
 C. C. A. 258 601 
 
 Phillips V. De Wald, 79 Ga. 732, 7 S. E. ISI • ■ • 7S8 
 
 Phillips V. Denver City Tramway Co., 53 Colo. 458, 128 Pac. 460, Ann. 
 
 Cas. 191B. B. 13, 29, 7 N. C. C. A. 487 680, 900, 914 
 
 Phillips V. Fadden, 125 Mass. 202 346, 378, 379, 381, 382 
 
 Phillips V. N. Y. C. & H. R. R., 127 N. Y. 657, 660, 27 N. E. 978 778 
 
 Phillips V. Taxi Service Co. (Cir. Ct. Dist. Mass.), 183 Fed. 869, affirmed 
 
 (C. C. A. ist Ct.), 187 Fed. 734, 109 C. C. A. 482 849, 1090 
 
 Philpot v. Fifth Ave. Coach Co., 142 App. Div. 811, 128 N. Y. S. 35 170 
 
 Picken v. Miller (Ind. App. 1915), 108 N. E. 968 295, 1002, 1006, 1009 
 
 Pickett v. Wilmington, Etc., R., 1 17 N. C. 616, 635 733 
 
 Pierson v. Crooks, 115 N. Y. 539, 549, 22 N. E. 349, 12 Am. St. Rep. 831 . 446 
 
 Pietsch v. McCarthy, 159 Wis. 251, 150 N. W. i 309 
 
 Pilgrim v. Brown, 168 Iowa 177, 150 N. W. i 130, 300, 301 
 
 Pitcher v. Webber, 103 Me. loi, 68 Atl. 593 462, 464, 467 
 
 Pittsburgh C. C. & St. L. R. v. Dove (Ind. 1916), in N. E. 609 886 
 
 Pittsburgh Rys. Co. v. Givens, 211 Fed. 885, 128 C. C. A. 263, 3d. Cir ... 895 
 
 Pittsburgh C. C, Etc., Ry. Co. v. Kephart, Ind., 112 N. E. 251 667, 678 
 
 Pittsburg R. R. Co. v. Taylor, 104 Pa. 314 283 
 
 Plancq v. Marks, 94 Law Times Reps., N. S. 577 io3S 
 
 Ploetz V. Holtz 124 Minn. 269, 144 N. W. 745 596, 1087 
 
 Pluckwell V. Wilson, 5 Car & P. 375 (Eng.) 709, 710 
 
 PoUett V. Long, 56 N. Y. 200, 206, 68 S. E. 238 685 
 
 Polsky V. N. Y. Transportation Co., 96 N. Y. App. Div. 613, 614, 88 N. Y. 
 
 S. 1024 1047, 1125 
 
 Pope V. Allis, IIS U. S. 363, 6 S. Ct. 69 446, 460 
 
 Popplewell V. Pierce, 64 Mass. 509 75S 
 
 Porter v. Buckley, 147 Fed. Repr. 140, 142, 78 C. C. A. 138 
 
 1033, 1044, I0S7, 1063, 1069 
 Porter v. Fletcher, 153 App. Div. 470, 138 N. Y. S. 557 130 
 
 cvi 
 
TABLB OP CASES CITED 
 
 Porter y. Jacksonville Eke. Co., 64 Fla. 409, 59 So. 400, 4 N. C. C. A. 379 
 
 191, 677, 71S, 1006 
 
 Porter v. Hetherington, 172 Mo. App. 502, 158 S. W. 469 IS8 
 
 Portland Bank v. Apthorp, 12 Mass. 252, 256 16, 63, 73 
 
 Posener v. Harvey, Tex. Civ. App., 125 S. W. Repr. 356 158, 702, 831, 1084 
 
 Potter V. N. Y., Etc., R., 48 N. Y. Supp. 446, 22 Misc. 10, Henry v. 
 
 Klopfer, 147 Pa. St. 178, 23 Atl. 337 7S8 
 
 Potter V. CDonnell, 199 111. 119, 64 N. E. 1026 1070 
 
 Powell V. Deveney, 57 Mass. 300 585, 698 
 
 Power V. Arnold Engineering Co., 142 App. D. 401, 126 N. Y. S. 839 582 
 
 Powers V. Russell, 13 Pick. (30 Mass.) 69 638, 639, 1048 
 
 Powers V. Williamson (Ala.), 66 So. 585, 1915 542 
 
 Preferred Accident Ins. Co. v. Patterson, 213 Fed. S9S, 130 C. C. A. 17^, 
 
 3d Cir 520 
 
 Premier Motor Mfg. Co. v. Tilford (Ind. 1916), iii N. C. 645 550, 557 
 
 Presser v. Dougherty, 239 Pa. St. 312, 86 Atl. 854 282, 1061 
 
 Preston v. .lEtna Ins. Co., 193 N .Y. 142, 145, 85 N. E. 1006 238, 250, 261, 516 
 
 Prideux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558 779 
 
 Primrose v. Casualty Co., 232 Pa. St. 210, 81 Atl. 212, 37 L. R. A. N. S. 618 803 
 
 Prince v. Crocker, 166 Mass. 347, 359, 44 N. E. 446 18 
 
 Prince v. Taylor, Tex. Civ. App., 1915, 171 S. W. 826 SS8, 845 
 
 Provincial Motor Cab v. Dunning, 2 L. R. K. B. 599 45, 3I3, 555, 9S5, 956 
 
 Provo V. Conrad, 130 Miss. 412, 153 N. W. 753 580 
 
 Puffer V. Muskegon Traction & Lighting Co., 173 Mich. 193, 139 N. W. 19 906 
 
 Puffer V. Orange, 122 Mass. 391 22a 
 
 Purcell V. St. Paul City Ry., 48 Minn. 134, 50 N. W. 1034 1096 
 
 Purdy V. Sherman, 74 Wash. 309, 133 Pac. 440 549 
 
 Purtell V. Jordan, 156 Mass. 577, 31 N. E. 652 267, 286, 848 
 
 Pyle V. Clark, 75 Fed. Repr. 644, Utah, C. C, 79 Fed. Repr. 744 779 
 
 Quarman v. Burnett, 6 Mees & W. 499 570 
 
 Queen v. Ledger, 2 Post. & F. 857 (Eng.) 954 
 
 Quigley v. Del., Etc., Canal Co., 142 Pa. St. 388, 396, 21 Atl. 827 698, 721, 889 
 
 Quigley v. Thompson, 211 Pa. St. 107, 109, 60 Atl. 506 1074 
 
 Quinn v. Ross Motor Car Co., 157 Wis. 543, 147 N. W. 1000, 8 N. C. C. 
 
 A. 370 856, 86s 
 
 Quirk v. Holt, 99 Mass. 164 851 
 
 Raber v. Hinds, 133 Iowa 340, no N. W. 597 649, 745, 756, 764 
 
 Radnor Township v. Bell, 27 Pa. Super. Ct. i, 6 
 
 23, 28, 36, 93, 116, 119, 179, 196, 197, 200, 206, 230 
 
 Railroad v. Beckwith, 129 U. S. 29, 9 S. Ct. 207 28, 182, 238 
 
 Railroad Co. v. Hunter, 6 App. Cas. 308 (D. C.) 1070 
 
 Ramsden v. Boston & A. R., 104 Mass. 117 585, 589 
 
 Rand v. Syms, 162 Mass. 163, 38 N. E. 196 278, 284 
 
 Randall v. Eastern R. Co., 106 Mass. 276 220 
 
 cvii 
 
TABLE OP CASES CITED 
 
 Randle v. Barden (Tex. Civ. App. 1914), 164 S. W. 1063 1043 
 
 Randolph v. O'Riordan, 155 Mass. 331, 338, 29 N. E. 583 -281, 289, 7ii, 774, m, 810 
 
 Ransom v. New York & Erie Railroad, 15 N. Y. 415 1096 
 
 Ransom v. Wikcstrom Co., 84 Wash. 419, 146 Pac. 1041 471 
 
 Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. S92 320, 761, 856, 865, 990 
 
 Ratcliffe v. Speith, 95 Kan. 823, 149 Pac. 740 859, 860 
 
 Ray V. State, 142 Ga. 655, 83 S. E. S18 1003, 1099 
 
 Ray V. Thompson, 66 Mass. 281 443 
 
 Ray V. Young, 160 Iowa 613, 142 N. W. 393, 38 Ann. Cas. 258 386 
 
 Rayburn v. Phillips, 160 Mo. App. 534, 140 S. W. 977 1013, 1015 
 
 Raymond v. Hill, 168 Cal. 473, 143 Pac. 743 264, 277, 725, 831, 836, 1013 
 
 Raymond v. Lowell, 60 Mass. 530 836 
 
 Rayner v. Mitchell, L. R. 2 Com. Pleas Div. 357 234, 530 
 
 Read v. N. Y. Cent., Etc., R., 123 N. Y. App. Div. 228, 107 N. Y. S. 1068 . 787, 889 
 
 Reaves v. Maybank, 1916 Ala. Sup., 69 So. 137 644, 860 
 
 RebiUard v. Minneapolis, St. P. & S. S. M. Ry., C. C. A. 8th Cir., 216 Fed. 
 
 S03, L. R. A. 1915, B. 953 789 
 
 Record v. Penn. Ry. Co., 75 N. J. L. 3H, 67 Atl. 1040 874, 877, 889 
 
 Reed v. Martin, 160 Mich. 253, 125 N. W. 61 295, 636, 770 
 
 Reed v. Northfield (Inhab), 30 Mass. 94, 98 217 
 
 Reed v. Snyder, 38 Pa. Super. 421 268, 271, 750 
 
 Reed V. St. Paul Fire & Marine Ins. Co., 165 App. Div. 660, 151 N. Y. 
 
 S. 274 518 
 
 Reg. V. Benge, 4 Fost. & F. 504 (Eng.) 9S4 
 
 Reg. V. Elliott, 16 Cox. C. C. 714 (Eng.) 611, 953 
 
 Reg. V. Haines, 2 Car. & K. 368 (Eng.) 9S4 
 
 Reg. V. Jones, 11 Cox Crim. Cas. S4S (Eng.) 343, 793, 794, 944, 947, 966 
 
 Reg. V. Lowe, 4 Cox C. C. 449 (Eng.) 305, 931 
 
 Reg. V. Mastin, 6 Car. & P. 396 (Eng.) 644, 937, 966 
 
 Reg. V. Murray, 5 Cox C. C. 510 (Eng.) 644, 936, 966 
 
 Reg. V. Swindall, 2 Car. & K. 230, 2 Cox C. C. 141 (Eng.) . .644, 937, 954, 966, 992 
 
 Reg. V. Taylor, 9 Car. & P. 672 953 
 
 Regina v. Longbottom, 3 Cox. C. C. 439 992 
 
 Reid Auto Co. v. Gorseyza, Tex. Civ. App., 144 S. W. 688 S73 
 
 Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853 579, 582 
 
 Reimers v. Proctor Pub. Co., 85 N. J. L- 441, 89 Atl. 931, 4 N. C. C. A. 738 600 
 
 Reitz V. Hodgkins (Ind. 1916), 112 N. E. 386 268,298,299,1088 
 
 Renault Taxi Service v. Park Carriage Co., 125 N. Y. S. S18 ISI 
 
 Reuter v. Hickman, Lauson & Co., 160 Wis. 284, 151 N. W. 795 1090 
 
 Revault v. Simpson Crawford Co., App. Term 1908, 108 N. Y. Suppl. 
 
 700 1104, iios 
 
 Rex V. Grout, 6 Car. & P. 629 (Eng.) 821, 937 
 
 Rex V. Walker, i Car. & P. 320 (Eng.) 644, 937, 945, 966 
 
 Rex V. Wells, 91 L. T. 98 (K. B.) 314,329,334 
 
 Reynolds v. Buck, 127 Iowa 601, 103 N. W. 946 591, 595 
 
 Reynolds v. Denholm, 213 Mass. 576, 100 N. E. 1006 579 
 
TABIvB Ot CASES CITED 
 
 Reynolds v. Garber-Buick Co., 183 Mich. 157, 149 N. W. 98s, L. R. A. 
 
 191S, C. 362 463 
 
 Reynolds v. Pacific Car Co., 75 Wash. 1, 134 Pac. 512 294, 298 
 
 Rhodes v. Dunbar, 57 Pa. St. 274, 98 Am. Dec. 221 239, 256 
 
 Ribas V. Revere Rubber Co., 37 R. I. 189, 91 Atl. 58 287, 770, 1012, 1099, 1043 
 
 Richardson v. Danvers, 176 Mass. 413, 57 N. E. 688, 50 L. R. A. 127, 79 
 
 Am. St. Rep. 320 S, 11, 206, 215 
 
 Richardson v. Haverhill & D. St. Ry. Co., 218 Mass. 52, 105 N. E. 221 . . 899, 913 
 
 Richardson v. Flower, 248 Pa. St. 35, 93 Atl. 777, g N. C. C. A. 61 606 
 
 Rideout v. Knox, 148 Mass. 368, 372 632 
 
 Ridge V. Pennsylvania R. Co., 58 N. J. Eq. 172, 43 Atl. 277 1033, 103S, 1073 
 
 Rieck V. Chicago & Milwaukee Electric Ry. Co., 152 Wis. 232, 151 N. W. 
 
 243 899 
 
 Riley V. Fisher, Tex. Civ. App. 1912, 146 S. W. 581 207, 748, 1028, 1075 
 
 Riley V. Roach, 168 Mich. 294, 134 N. W. 14, 37 L- R. A. N. S. 834 . . . . . .587, 1020 
 
 Ring V. City of Cohoes, 77 N. Y. 83 698, 700, 753 
 
 Ring V. Lawless, 190 111. 520, 60 N. E. 881 465 
 
 Ritchie V. Walker, 63 Conn. 155, 28 Atl. 29 552, 576 
 
 Riverbank Impr. Co. v. Bancroft, 209 Mass. 217, 95 N. E. 216, 34 L. R. A. 
 
 N. S. 730 421 
 
 Roach V. Hinchcliff, 214 Mass. 267, loi N. E. 383, 4 N. C. C. A. 29 . .172, 564, 1008 
 
 Roach V. Wright, Ala. 1916, 70 So. 271 752 
 
 Robb V. Connellsville Boro., 137 Pa. 42, 20 Atl. 564 829 
 
 Robbins v. Dartmouth Street Ry., 203 Mass. 546, 89 N. E. 1039 907, 912 
 
 Robbins v. Fitchburg R., 161 Mass. 145, 36 N. E. 752 777 
 
 Robbins v. Springfield Street Railway, 165 Mass. 30 868, 904 
 
 Roberts v. Kinley, 8g Kan. 885, 132 Pac. 1180, 45 L. R. A. N. S. 938 
 
 384, 390, 393 
 
 Roberts v. Mason, 10 Ohio St. 277 1 1 19 
 
 Roberts v. Schanz, 83 Misc. 129, 144 N. Y. S. 824 S9i 
 
 Robichaud v. Spence, 112 Maine 13, 430, 90 Atl. 430 309 
 
 Robinson v. Fitchburg, Etc., R., 73 Mass. 92 1028 
 
 Robinson v. Huber, 63 Atl. Repr. 873 (Del.) 1906 637, 1085 
 
 Robinson v. Louisville R. Co., 112 Fed. Repr. (Ky.) 487 894, 1032, 1070 
 
 Robinson v. McNeill, 18 Wash. 163, 51 Pac. 355 243, 543, 587 
 
 Robinson v. Met. St. Ry., 91 N. Y. App. Div. 158, 86 N. Y. S. 442, af- 
 firmed 179 N. Y. 593, 72 N. E. 1150 778 
 
 Robinson v. N. Y. C. & H. R. R., 66 N. Y. 11 778, 785, 793 
 
 Robinson v. Simpson, 8 Houst. 398 (Del.), 32 Atl. 287 624, 966 
 
 Robinson v. Springfield St. Ry. Co., 211 Mass. 483, 98 N. E. 576 299, 914 
 
 Robinson v. Van Auken, 190 Mass. 161, 76 N. E. 601 383 
 
 Roby V. Kansas City S. R. Co., 130 La. 880, 58 So. 701, 41 L. R. A. N. S. 
 
 355, 4 N. C. C. A. 325 684, 877 
 
 Rochester v. Bull, 78 S. C. 249, 58 S. E. 766 57i, 632, 634, 636, 639, 649, 748 
 
 Rockwood V. Allen, 7 Mass. 254, 256 io77 
 
 Rodenburg v. Clinton Auto. & Garage Co., 84 N. J. L- 545, 87 Atl. 71 .402, 568, 758 
 
TABI,fi Olf CASBS CITBD 
 
 Rogers v. Mann, 70 Atl. 1057 (R. I.), 1908 303, 3o8, iioo, 1049, 1126 
 
 Rogers v. Phillips, 206 Mass. 308, cf. 217 Mass. 52, 104 N. E. 466, 92 N. 
 
 E. 327, 28 L. R. A. N. S. 499 272, 288, 292, 654, 656, 768, 830, 834, 992 
 
 Rogers v. Portland Ry. Light & Power Co., 66 Oregon 244, 134 Pac. 9 . . 678 
 
 Rohan v. Sawin, S9 Mass. 281 368, 369, 371, 381, 383 
 
 Rohr V. Gray, 80 Md. 274, 276, 30 Atl. 632 52, 68 
 
 Ross V. Leggett, 61 Mich. 445, 28 N. W. 695 1080 
 
 Rothwell V. New York, N. H. & H. R., 223 Mass. sso, 112 N. E. 231 1013 
 
 Rouse V. Blair, 185 Mich. 632, 152 N. W. 204, 8 N. C. C. A. 1033 883, 890 
 
 Routh V. Weakley, Kan. 1916, 154 Pac. 218 859 
 
 Routledge v. Rambler, Etc., Co., Tex. Civ. App. 1906, 95 S. W. 749 
 
 183, 532, 783, 790, 796, 956, 1023, 1074 
 
 Rowand v. Germantown Trust Co., 248 Pa. 341, 93 Atl. 1070 558 
 
 Rowe V. Hammond, 172 Mo. App. 203, 157 S. W. 880, 4 N. C. C. A. 14, IS, 
 
 5 N. C. C. A. 142 296, 715, 735, 1050 
 
 Rowley v. Bigelow, 29 Mass. 307, 312 4S6 
 
 Royal Indemnity Co. v. Schwartz, Tex. Civ. App. 191 5, 172 S. W. 581 . . 123 
 
 Rubinovitch v. Boston El. Ry., 192 Mass. 119, ^^ N. E. 895 912 
 
 Rudder v. Koopman, 37 L. R. A. 489 239, 255 
 
 Ruggles v. State, 120 Md. 553, 87 Atl. 1080 72, 85, 86, 99, 353, 355 
 
 Rump v. Bresnan, 160 Wis. 179, 151 N. W. 251, 8 N. C. C. A. 721 754 
 
 Rump V. Woods, 50 Ind. App. 347, 98 N. E. 369 
 
 618, 825, 826, 830, 831, 1009, 1012, 1064 
 
 Runyon v. Central Railroad, Etc., 25 N. J. L. 5S6, 558 658 
 
 Rush V. Metropolitan St. Ry. Co., 157 Mo. App. 504, 137 S. W. 1029 
 
 735, 775, 807, 1090 
 Rushmoore v. Manhattan Screw, Etc., Works, 163 Fed. 939, 19 L. R. A. 
 
 N. S. 269 437 
 
 Russell V. Electric Garage Co., 90 Neb. 719, 134 N. W. 253 171, 310, 1065 
 
 Rust V. Eckler, 41 N. Y. 488 514 
 
 Rust V. Essex, 182 Mass. 313, 65 N. E. 397 215 
 
 St. James Church v. Arrington, 2^ Ala. 546 418 
 
 St. Louis V. Grafeman D. Co., 190 Mo. 492, 89 S. W. 617 73 
 
 ' St. Louis V. Green, 7 Mo. App. 468, 475 198 
 
 St. Louis, City of, v. Grone, 46 Mo. 574 123 
 
 St. Louis V. Kaime, 189 Mo. 309, 322, 79 S. W. 140 ill 
 
 St. Louis V. Williams, 235 Mo. 503, 139 S. W. 340 121 
 
 St. Louis, Etc., R. V. Keokuk, Etc., 31 Fed. Repr. 756, 1887 623 
 
 St. Louis & S. F. R. Co. V. Model Laundry, 42 Okl. 501, 141 Pac. 970 .902, 908, 914 
 
 Salisbury v. Erie R. R. Co., 66 N. J. L. 233, 234, 50 Atl. 117 574 
 
 Salisbury v. Herchenroder, 106 Mass. 458 631 
 
 Salminen v. Ross (Cir. Ct. D. Mass.), 185 Fed. 997, 112 C. C. A. 148 290, 1022 
 
 Saltonstall v. Stockton, Taney's Cir. Ct. Dec. i, 16 (affirmed, 13 Peters, 
 
 181) 567, 634, 720, 726, 731, 805, 948 
 
 Sampson v. Wilson, Conn. 1916, 96 Alt. 163 678 
 
TABIvB O? CASBS CITED 
 
 Sanders v. Pennsylvania R. R., 225 Pa. St. 105, 73 Atl. loio 656, 874, 876, 889 
 
 Sandresky v. Erie R. Co., 91 Misc. 67, 153 N. Y. S. 612 882 
 
 Sandruck v. Wilson, 117 Md. 624, 84 Atl. S4 47i 
 
 Sanf ord v. Eighth Ave. Railroad, 23 N. Y. 343, 346 973 
 
 Sapp V. Hunter, 134 Mo. App. 685, 115 S. W. Repr. 463 
 
 168, 186, 741, 743, 745, 746, 748, 764 
 
 Sapp V. State, 116 Ga. 182, 42 S. E. 410 34i 
 
 Sarver v. Mitchell, 35 Pa. Superior Ct. 69 SSo 
 
 Sasso v. Carlson, 96 Kan. 153, 150 Pac. 576 823 
 
 Sauter v. N. Y. C. & H. R. R., 66 N. Y. 50, 53 703. 1098 
 
 Savoy v. McLeod, lii Maine 234, 88 Atl. 721, 48 L- R. A. N. S. 97i • -316, 12T, 749 
 
 Sawyer v. Dooley, 2i Nev. 390, 32 Pac. Repr. 437 41 
 
 Sayre Borough v. Phillips, 148 Pa. 482, 24 Atl. 76 36 
 
 Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642 853 
 
 Scannell v. Boston Elevated Ry., 176 Mass. 173, 57 N. E. 341 271, 904 
 
 Schaar v. Conforth, 128 Minn. 460, 151 N. W. 275, 8 N. C. C. A. 1079 .50, 7Si, I^Z 
 
 Schafer v. Gilmer, 13 Nev. 330 948, 1085, 1091 
 
 Schall V. Northland Motor Car Co., 123 Minn. 214, 143 N. W. 357 1057, 1105 
 
 Scheel V. Shaw (Pa. 1916), 97 Atl. 685 574, 1020, 1023 
 
 Schienfeldt v. Norris, 115 Mass. 17, 19 685, 823 
 
 Schindler v. M. L. & W. R., 87 Mich. 400, 43 N. W. 911 778 
 
 Schlemmer v. Buffalo, Etc., Ry., 205 U. S. i, 220 U. S. 59°, 31 S. Ct. 561 . 641, 964 
 
 Schmidt V. Blood, 9 Wend. 268 397 
 
 Schmidt V. Harkness, 3 Mo. App. 585 167 
 
 Schmidt v. North Jersey Ry., 49 Atl. 440 (N. J. 1903) 1062 
 
 Schneider v. Locomobile Co., 83 Misc. 3, 144 N. Y. Suppl. 311, 4 N. C. C. 
 
 A. 8 849 
 
 Schneider v. State, 181 Ind. 218, 104 N. E. 69 940, 943 
 
 Schock V. Cooling, 175 Mich. 313, 141 N. W. 675 821, 840 
 
 Schoening v. Young, 55 Wash. 90, 104 Pac. 132 293, 298, 654 
 
 Scholl V. Grayson, 147 Mo. App. 652, 127 S. W. Repr. 415 1098, 1099 
 
 Schollenberger v. Pennsylvania, 171 U. S. i, 18 Sup. Ct. 757 127 
 
 Schoonmaker v. Wilbraham, no Mass. 134 1028 
 
 Schreiber v. Matlack, 154 N. Y. S. 109, 90 Misc. 667 549 
 
 Schreiver v. Grinnell (N. J. 1916), 97 Atl. 781 837 
 
 Schubert v. Clark, 49 Minn. 331, 51 N. W. I03 429, 430 
 
 Schuler, Ex parte, 167 Cal. 282, 139 Pac. 685, Ann. Cas. 1915, B. 706 .72, 83, 84, 100 
 
 Schultz V. Morrison, 154 N. Y. S. 257, 91 Misc. 248 572, 591, 596 
 
 Schultz V. New Orleans St. Ry., 44 La. Ann. 509, 10 So. R. 811 271, 867, 904 
 
 Schultz V. State, 89 Neb. 34, 13(1 N. W. 972, zz L. R. A. N. S. 403 
 
 301, 317, 823, 935, 943, 1013, losi 
 
 Schumacher v. Meinrath, 177 111. App. 530, 8 N. C. C. A. 371 848 
 
 Schumaker v. St. Paul, Etc., R., 46 Minn. 39, 42, 48 N. W. 559 697 
 
 Schumer v. Register, 12 Ga. App. 743, 78 S. E. 731, 8 N. C. C. A. 300 
 
 571, 592, 594, 596, 1006 
 Schweppe v. Uhl, 97 Neb. 328, 149 N. W. 789 691 
 
 cxi 
 viii 
 
TABIvB Ot CASES CiTfiD 
 
 Scofield V. Poughkeepsie (Town), 122 App. Div. 868, 107 N. Y. Supp. 767 
 
 213, 219, 707 
 
 Scott V. Dow, 162 Mich. 636, 127 N. W. 712 278, 299, 713, 715, 1024 
 
 Scott V. O'Leary, 157 Iowa 222, 138 N. W. 512 318, 650, 757, 1050 
 
 Scott V. Riddle, Tex. Civ. App. 1913, 153 S. W. 408 160 
 
 Scott V. Shepherd, 2 W. Black 892 (Eng.) 695 
 
 Scragg V. Salke, 24 Cal. App. 133, 144 Pac. 706 296, 712, looi, 1021, 1059, 1088 
 
 Scranton v. Hawley, 9 Lack. Co. (Pa.) Reps. 65 149 
 
 Scranton v. Laurel Run Turnpike Co., 225 Pa. St. 82, 73 Atl. 1063 4 
 
 Seaboard Air Line Ry. v. Standifer, igo Ala. 260, 67 So. 391 702 
 
 Seaboard Air Line Ry. Co. v. Tomberlin, Fla. 1916, 70 So. 437 879 
 
 Seaman v. Mott, 127 N. Y. App. Div. 18, 110 N. Y. S. 1040 824, 829, 1074 
 
 Searing v. Butler, 69 111. 575 486 
 
 Searles v. Manhattan Ry., loi N. Y. loi 698 
 
 Sears v. Dennis, 105 Mass. 312 719 
 
 Sears v. Seattle, Etc., Ry., 6 Wash. 227, 33 Pac. 389 1063 
 
 Seattle v. Franey Taxicab Co., 80 Wash. 396, 141 Pac. 8go 821 
 
 See V. Wormser, 129 N. Y. App. Div. 596, 113 N. Y. S. 1093 347, 1028, 1029 
 
 Seeley v. Welles, 120 Pa. St. 69, 13 Atl. 736 505 
 
 Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876 282, 1022, 1029, 1088 
 
 Segler v. Callister, 167 Cal. 377, 139 Pac. 819. Si L. R- A. N. S. 772 SS9 
 
 Sego V. Southern Pacific Co., 137 Cal. 405, 70 Pac. 279 733 
 
 Senft V. Western Md. Co., 246 Pa. 446, 92 Atl. SS3 788 
 
 Setterstrom v. Brainerd, Etc., R., 89 Minn. 262, 94 N. W. 884 1062 
 
 Shadewald v. Phillips, 72 Minn. 520, 75 N. W. 717 5 
 
 Shafifer v. Coleman, 35 Pa. Super. Ct. 386 633, 696, 707. 733, 753, 1063, 1070 
 
 Shamp V. Lambert, 142 Mo. App. 567, 121 S. W. 770 302, 771 
 
 Shannon v. Boston & A. R., 78 Me. 52, 2 Atl. 678 731 
 
 Sharkey v. Skilton, 83 Conn. 503, 77 Atl. 950 92, 1000 
 
 Sharpnack v. Des Moines City Ry.,_ 115 N. W. 457 (Iowa) . .271, 823, 895, 902, 904 
 
 Shattuck V. Woods, 18 Mass. 171 375 
 
 Shaw V. Boston & W. R., 74 Mass. 67 874 
 
 Shaw V. Conn. Co., 86 Conn. 409, 8s Atl. 536 66 
 
 Shaw V. Kaler, 106 Mass. 448 389 
 
 Shaw V. Nudd, 25 Mass. 9 S07 
 
 Shawnee v. Landon, 25 Okl. 263, 106 Pac. 652 92, 93, 95, loi, 317 
 
 Shay v.- Horr, 78 Wash. 667, 139 Pac. 604 S2S 
 
 Shearer v. Buckley, 31 Wash. 370, 72 Pac. 76 778 
 
 Sheehan v. Edgar, 58 N. Y. 631 -. 685 
 
 Sheffield v. Cent. Union Tel. Co., 36 Fed. Repr. 164, Ohio 779 
 
 Sheffield v. Union Oil Co., 82 Wash. 386, 144 Pac. 529 292, 725 
 
 Shelton V. Hunter, 162 Ky. 531, 172 S. W. 950 746, 749 
 
 Shelton v. Little Rock Auto Co., 103 Ark. 142, 146 S. W. 129 10, 413 
 
 Shepard v. Jacobs, 204 Mass. no, 90 N. E. 392 567, 568 
 
 Shepard v. Norfolk & S. R. Co., 169 N. C. 239, 85 S. E. 277 658, 706, 883 
 
 Shepard v. Wood, 116 N. Y. App. Div. 861, 102 N. Y. S. 306 1000 
 
 cxii 
 
TABLE OF CASUS CITED 
 
 Sheperd v. Pybus, 3 Man. & Gr. 868 504 
 
 Sheppard v. Johnson, 11 Ga. App. 280, 75 S. E. 348, 4 N. C. C. A. 21 
 
 307, 710, 712, 871 
 
 Sherman v. Livingston, 128 N. Y. Suppl. 581, Sup. Ct. S. T 418, 420 
 
 Sherwood v. N. Y. Cent. R., 120 App. Div. 639, 105 N. Y. Supp. 547 
 
 326, 719, 723, 787. 889, 9SS 
 Shield V. F. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L. R. A. N. S. 
 
 1080 735 
 
 Shields V. Fairchild, 130 La. 648, 58 So. 497 822 
 
 Shimoda v. Bundy, 24 Cat. App. 67S, 142 Pac. 109, 9 N. C. C. A. 834 
 
 29s, 71S, 1061, 1064 
 Shinkle v. McCuUough, 116 Ky. 960, 965, 11 S. W. 196 
 
 20s, 649, 740, 744, 745, 1019, 1088 
 
 Shipelis V. Cody, 214 Mass. 452, loi N. E. 1071, 4 N. C. C. A. 5 644, 860, 865 
 
 Shirk V. Neible, 156 Ind. 66, 75, 59 N. E. 281 44i 
 
 Shoemaker, V. Central R. of New Jersey, N. J. Sup. 1914, 89 Atl. 517 879 
 
 Shore v. EHinham (Mo. App. 1915), 178 S. W. 900 897, 1020 
 
 Shore v. Ferguson, 142 Ga. 657, 83 S. E. S18 268 
 
 Shore V. Ogden, 55 Ind. App. 394, 103 N. E. 852 407 
 
 Short V. Metz Co., 165 Ky. 319, 176 S. W. 1144 474 
 
 Shreveport v. Stringfellow, 137 La. 552, 68 So. 951 124 
 
 Shultz V. Old Colony St. Ry., 193 Mass. 309, 79 N. E. 873 .774, 775, 780, 782, 792, 1(^1 
 
 Shuraacher v. St. L. & S. P. R., 39 Fed. Repr. 174 924 
 
 Siegrist v. Arnot, 86 Mo. 200, 205, 56 Am. Rep. 424 399 
 
 Siegel V. White Co., 142 N. Y. S. 318, 81 Misc. 171 582 
 
 Sikes V. Johnson, 16 Mass. 389 961 
 
 Silberman v. Huyette, 22 Mont. Co. Pa. L. Repr. 39 754, 756, 1054, 1055 
 
 Simeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 778 146, 170, 179, 199, 205, 207 
 
 209, 233, 268, 271, 288, 319, 321, 326, 331, 536, 638, 639, 644, 649, 651, 654, 672, 
 696, 702, 719, 723, 724 818, 823, 830, 838, 949, 955, 1016, 1019, 1026, 1039, 1086 
 
 Simon V. Henry, 62 N. J. Law (33 Vr.) 486 (Supreme Court, 1896) 254 
 
 Simmons v. Lewis,i46 Iowa 316, 125 N. W. 194 206, 747, 748 
 
 Simmonson v. Stellenmerf, i Edmond's Sel. Cas. 194 710 
 
 Sims V. Williamsburg Twp., 92 Kans. 636, 141 Pac. 581 220 
 
 Singer & T. S. Co. v. Hutchinson, 83 111. App. 668, affirmed 184 111. 169, 
 
 56 N. E. 353 488 
 
 Singleton v. Com., 164 Ky. 243, 175 S. W. 372 348, 349 
 
 Sisson V. Philadelphia, 248 Pa. 140, 93 Atl. 936 218, 225 
 
 Skene v. Graham, Maine (1916), 95 Atl. 950 285, 725 
 
 Slade V. City of Chicago, i III. Cir. Ct. Reps. 520 112, 116, 121 
 
 Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133 145, 244, 571, 582 
 
 Slattery v. O'Connell, 153 Mass. 94, 26 N. E. 430 862 
 
 Slaughter-house Cases, 16 Wall. 36 27, 136 
 
 Slayton v. Barry, 175 Mass. 513, 56 N. E. 574 463 
 
 Sleeper v. Worcester, Etc., R., 58 N. H. 520 685 
 
 Sloan V. Pasche, Tex. Civ. App. 153 S. W. 67? 317, 542 
 
 odii 
 
TABI<E OF CASDS CITED 
 
 Slothower v. Clark, 191 Mo. App. 105, 1 79 S. W. SS SS8, S8i, 586 
 
 Smead v. Stearns, Iowa 1916, 155 N. W. 307 1103 
 
 Smiley v. East St. Louis & S. Ry. Co., 256 111. 482, 100 N. E. 157 207 
 
 Smith, Bx parte, 26 Cal. App. 116, 146 Pac. 82 120 
 
 Smith V. American Automobile Co., 188 Mo. App. 297, 175 S. W. 113 S18 
 
 Smith V. Associated Omnibus Co., Law Reps. K. B., vol. i, p. gi6, 1907 . . 182 
 
 Smith V. Boon, 84 L. T. N. S. 593 3iS, 336 
 
 Smith V. Bruce (Minn. 1915) , 154 N. W. 659 840 
 
 Smith V. Burns, 71 Oregon 133, 142 Pac. ^52, L. R. A. 1915 A. 1130 595 
 
 Smith V. Conway, 121 Mass. 216, 219 - 289 
 
 Smith V. Coon, 89 Neb. 776, 132 N. W. 535 725, 821 
 
 Smith V. Gardner, 77 Mass. 418 280, 288, 289, 293 
 
 Smith V. Heibel, 157 Mo. App. 177, 137 S. W. 70, S N. C. C. A. 107 916, 1088 
 
 Smith V. Holcomb, 99 Mass. 552 589 
 
 Smith V. Illinois Central R. Co., Wis. 1916, 155 N. W. 933 878 
 
 Smith V. Jackson (Twp.), 26 Pa. Super. Ct. 234 223 
 
 Smith V. Jordan, 211 Mass. 269, 97 N. E. 761, 8 N. C. C. A. 301 S9i, 593 
 
 Smith V. McDowell, 148 111. 51, 62, 35, N. E. 141 iii, 116 
 
 Smith V. N. Y. C. & H. R., 38 N. Y. Supp. 666, 670, 4 Am. and Eng. Enc. 
 
 Law, Sec. 38 681 
 
 Smith V. O'Brien, 46 Misc. 325, 94 N. Y. Supp. 673, 103 N. Y. App. Div. 
 
 596 384 411, 412, 413, 416, 808 
 
 Smith V. Postal Co., 174 Mass. 576, 55 N. E. 380 1097 
 
 Smith V. Smith, 2 Pick. (19 Mass.) 621 271, 676 
 
 Smith V. State, 103 Miss. 356, 65 So. 564 130 
 
 Smith V. State, Tex. Crim. App. 146 S. W. 547 348 
 
 Smith V. Texas, 233 U. S. 630, 34 U. S. Sup. Ct. 681 814 
 
 Smith V. Vose Piano Co., 194 Mass. 193, 199, 80 N. E. 527 439 
 
 Smith V. Wildes, 143 Mass. 556, 10 N. E. 446 337, 868 
 
 Sraoot V. Ryan, 187, Ala. 396, 65 So. 828 462 
 
 Snowden, Bx parte, 12 Cal. App. 521, 107 Pac. 724 9, 119, 128, 312 
 
 Snyder v. Hannibal & St. J. R., 60 Mo. 413 543 
 
 Snyder v. N. Lawrence, 8 Kans.. 82 94 
 
 Solan & Billings v. Pasche, Tex. Civ. App., 153 S. W. 672 554, 1013 
 
 Southern D. Co. v. Silva, 125 U. S. 247 510 
 
 Southern Exp. Co, v. Walker, 92 Va. 59, 63 358 
 
 Southern Garage Co. v. Brown, 187 Ala. 484, 6s So. 400 393, 397 
 
 Southern Pacific Co. v. Walker, Tex. 1915, 171 S. W. 264, 8 N. C. C. A. 
 
 1048 877 
 
 Southern Ry. Co. v. O'Bryan, 119 Ga. 147, 45 S. E. 1000 1112 
 
 Southern Ry. v. Webb, 116 Ga. 152, 42 S. E. 395 996 
 
 Southern Traction Co. v. Kirksey, Tex. Civ. App. 1916, 181 S. W. S4S 886 
 
 Southwestern R. v. Paulk, 24 Ga. 336 720 
 
 Southwick v. Estes, 61 Mass. 385 585 
 
 Southworth v. R. R., 105 Mass. 342 304 
 
 cxiv i 
 
TABLE OF CASES CITED 
 
 Spade V. Lynn & Boston Ry., i68 Mass. 285, 172 Mass. 488, 47 N. E. 88 
 
 186, 720, 1096, 1097 
 Spangler v. Markley, 39 Pa. Super. Ct. 351; 8 N. C. C. A. 1083 
 
 268, 271, 272, 6SS, 742, 745, 7S4, 765 
 
 Sparhawk v. Salem, 83 Mass. 30 219, 220 
 
 Sparks V. Reliable Dayton Motor Car Co., 85 Kan. 29, 116 Pac. 363 490 
 
 Sparks V. State, Tex. Crim. App., 174 S. W. 351 349 
 
 Speare v. Halstead, 74 N. C. 620 S07 
 
 Spencer v. N. Y. Central R., 123 N. Y. App. Div. 789, 108 N. Y. S. 24S, 189, 879, 889 
 
 Spina V. New York Transp. Co., 48 Misc. 524, 96 N. Y. Suppl. 270 636, 827, 829 
 
 Spofford V. Harlow, 85 Mass. 176 267, 284, 288 
 
 Spooner v. McConnell, i McLean, 337, 379 203 
 
 Spring V. Williamstown, 186 Mass. 479, 71 N. E. 949 215 
 
 Springer v. Chicago, Etc., R., 95 Kan. 408, 148 Pac. 611, 8 N. C. C. A. 1050, 885 , 
 
 Springfield v. Springfield St. Ry., 182 Mass. 41, 48, 64 N. E. 577 I04 
 
 Springfield Engine, Etc., Co. v. Sharp, 184 Mass. 266, 68 N. E. 224 443 
 
 Squire v. Tellier, 185 Mass. 18, 21 41 
 
 Staacke v. Routledge, Tex. Civ. App. 175 S. W. 444 555 
 
 Staba V. State (i Tex. Crim. App.), 151 S. W. 543 389 
 
 Stackpole v. Healy, 16 Mass. 33 267 
 
 Stahl V. Sollenberger, 246 Pa. 525, 92 Atl. 720, 8 N. C. C. A. 376 838 
 
 Staley v. Forest, 157 Iowa 534, 138 N. W. 441 747 
 
 Standard Oil Co. v. Bowker, N. E. 128, 130, 14.1 Ind. 12 1098 
 
 Standard Oil Co. v. Hartman, 102 Md. 563, 62 Atl. 80S 275, 306 
 
 Standard Oil v. Tierney, 14 L. R. A. dyy (at p. 682) 239, 249, 255 
 
 Stanley v. Steele, ^^ Conn. 688, 690, 60 Atl. 640 402 
 
 Starr v. C. & A. Railroad Co., 4 Zab. 597, 24 N. J. L. 592 202 
 
 Starr v. Schenck, 25 Mont. Co. R., 18 (Pa.) 1907 824, 842, 896, 902 
 
 Star Omnibus Co. v. Tagg, 23 Times L. R., K. B. 488, Vol. I 173 
 
 State V. Aaron ( Vt. 1916) , 97 Atl. 659 354 
 
 State V. Biewen, 159 Iowa 256, 151 N. W. 102 loii, 1052 
 
 State V. Block, 87 Conn. 573, 89 Atl. 167, 49 L. R. A. N. S. 913 933 
 
 State V. Born, 85 Ohio 430, 98 N. E. 108 323 
 
 State V. Boston & M. R., 80 Me. 430, 446, 13 Atl. 36 ^^^ 
 
 State V. Bussion, iii Minn. 488, 127 N. W. 495 98, 277 
 
 State V. Campbell, 82 Conn. 671, 74 Atl. 927 
 
 184, 334, 633, 644, 662, 665, 933, 934, 943, 947, 1030 
 
 State V. Cobb, 113 Mo. App. 156, 87 S. W. 551 20, 72, 75 
 
 State V. Cowan, 29 Mo. 33 357 
 
 State V. Davis, 88 S. C. 229, 70 S. E. 811, 34 L. R. A. N. S. 295 337, 353, 354 
 
 State V. Dunklee, 76 N. H. 439, 84 Atl. 40, Ann. Cas. 1913B, 754 121, 803 
 
 State V. Foster, 22 R. I. 163, 170, 46 Atl. 833 59 
 
 State V. Gish, 168 Iowa 70, 150 N. W. 37 25, 46, 207 
 
 State V. Goetz, 83 Conn. 437, 76 Atl. 1000 184, 266, 312, 334, 631, 633, 933, 1027 
 
 State V. Goodwin, 169 Ind. 265, 82 N. E. 459 94, 265, 342, 741, 756, 763 
 
 State V. Hamley, iig N. W. 114, 137 Wis. 458 360 
 
TABI,B OF CASeS CITED 
 
 State V. Horner, Mo. App. 1916, 180 S. W. 873 934 
 
 State V. Howell, 82 Wash. 356, 147 Pac. 1159 813, 815 
 
 State V. Ingalls, 18 New Mexico 211, 135 Pac. 1177 107, 138 
 
 State V. Jarvis ( Vt. 1916), 95 Atl. S4i 8, 72 
 
 State V. Kelly, 47 Vermont 294 342, 345 
 
 State V. Kirbley, 29 Md. 85, 103 100 
 
 State V. Larrabee, 104 Minn. 37, 115 N. W. 948 US, 117, 276, 711 
 
 State V. Lawrence, 105 Miss. 58, 66 So. 74s 73. 83, 134 
 
 State V. Lewis, 107 N. C. 967, 12 S. E. 460 950 
 
 State V. Mayo, 106 Me. 62, 75 Atl. 295 23, 71, 76, 118, 127, 206 
 
 State V. McAden, 162 N. C. 575, 77 S. E. 298 355 
 
 State, ex rel., Crandall v. Mcintosh, 205 Mo. 589, 610 20 
 
 State V. Missouri Pacific Railway, 71 Mo. App. 385, 393 10 
 
 State V. Moore, 129 Iowa 514, 106 N. W. 16 711, 931 
 
 State V. Myette, 30 R. I. 556, 78 Atl. 664 91, 92, IS4, 178, 306 
 
 State V. O'Brien, 32 N. J. 32 .' 937 
 
 State V. Overton, 24 N. J. Law 435 128 
 
 State V. Partlow, 91 N. C. 550, 552 92 
 
 State V. Petteys, 33 Wash. 444, 450, 74 Pac. 588 931, 937 
 
 State V. Pfeifer, Kan., 153 Pac. 552 325 
 
 State V. Philips, 107 Maine 249, 78 Atl. 283 197 
 
 State V. Pierce, 65 Iowa 85 341 
 
 State V. Read, 162 Iowa 572, 144 N. W. 310 307 
 
 State V. Schutte, 87 N. J. L. (2 Gum.) 15, 93 Atl. 112, 96 Atl. 659 940 
 
 State V. Shellady, 8 Iowa 505 9S4 
 
 State V. Slutz, 106 La. 182, 30 South 299 961 
 
 State V. Smith, 10 Nev. 123 945, 952 
 
 State V. Smith, 28 R. I. 513 47 
 
 State V. Smith, 35 R. I. 282, 69 Atl. 1061 93, 317, 323 
 
 State V. Swagerty, 203 Ma. 517, 102 S. W. 483 26, 28, 41. 49, 78, 80, 182, 205, 238 
 
 State V. Thurston, 28 R. I. 265, 66 Atl. 580 49,92, iii, ii2, 120 
 
 State V. Turner, 210 Mo. TJ, 85, 107 S. W. 1064 108 
 
 State V. Wagner, R. I. 1915, 86 Atl. 147 867, 933 
 
 State V. Waterman, 1 12 Minn. 157, 127 N. W. 473 50 
 
 State V. Watson, 216 Mo. 420, 115 S. W. lOii 
 
 184, 233, 241, 334, 353, 536, 930, 933, 9S3. 1048, 1063, 1070 
 
 State V. Welford, 28 R. I. 450, 72 Atl. 396 328, 332, 10S3 
 
 State V. Wilson, 265 Mo. i, 174 S. W. 163 764 
 
 Steamboat Clipper v. Logan, 18 Ohio 37S 1067 
 
 Steamboat New World v. King, i6 How. U. S. 469 179, 234, 619, 622 
 
 Steele v. Burkhardt, 104 Mass. 59, 62 281, 302, 304, 711, 712, 1007 
 
 Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016 240, 578 
 
 Stein V. Lyon, 91 N. Y. App. Div. 593, 87 N. Y. S. 125 261, 385, 418, 420 
 
 Stell, Bx parte, 4 Hughes, 157 (Fed. Cas. I33S8) 651 
 
 Stern v. International Ry. Co., 167 App. Div. 503, 153 N. Y. S. 520, 9 N. C. 
 
 C. A. 949 S66, 712 
 
 cxvi 
 
TABLE OF CASES CITED 
 
 Sterner v. Issitt, 89 Kans. 357, 131 Pac. 551 762 
 
 Stetson V. Faxon, 36 Mass. 160 228 
 
 Stevens v. Boston El. Ry., 184 Mass. 476, 69 N. E. 338 704. 7ii 
 
 Stevens v. Stewart-Warner Co., Mass. 1916, 11 1 N. E. 771 390,391 
 
 Stevenson v. Detroit United Ry., 167 Mich. 45, 132 N. W. 451 906 
 
 Stewart v. Baruch, 103 App. Div. S77, 93 N. Y. S. 161 SSO, S5i. S&7, 823, 1125 
 
 Stewart v. Harvard College, 94 Mass. 67 666, 851 
 
 Stilwell V. Buflfalo Riding Academy, 4 N. Y. Supp. 414, Supp. A. S. 7 418 
 
 Stinson v. Kenney, 176 Mass. 429 289 
 
 Stix V. Travellers' Indemnity Co., 175 Mo. App. 171, 157 S. W. 870 S21 
 
 Stock v. Wood, 136 Mass. 353 862 
 
 Stockton Automobile Co. v. Confer, 154 Cal. 402, 97 Pac. 881, 8 N. C. C. 
 
 A. 142 21S 
 
 Stodgel v. Elder, Iowa 1915, 154 N. W. 877 1009 
 
 Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319 281, 308 
 
 Stokes V. People, 53 N. Y. 179 96S 
 
 Stokes V. Saltonstall, 13 Peters (U. S. S. C.) 191 167 
 
 Stone V. Southern Pacific Ry. Co., 29 N. D. 480, 151 N. W. 36, 8 N. C. C. 
 
 A. 1039 876 
 
 Storey v. Ashton, L. R. 4 Q. B. 476 543 
 
 Stork, Ex parte, 167 Cal. 294, 139 Pac. 684 86 
 
 Story V. Green, 164 Cal. 768, 130 Pac. 870 1030 
 
 Stovall V. Corey Highlands Land Co., 189 Ala. 576, 66 So. 577, 9 N. C. C. 
 
 A. 833 548,716 
 
 Stowe V. Heywood, 7 Allen (89 Mass.) 118 589 
 
 Stowe V. Morris, 147 Ky. 386, 144 S. W. 52 592 
 
 Strand v. Grinnell Automobile Co., 136 Iowa 68, 113 N. W. 488 
 
 215, 649, 654, 738, 741, 745, 756, 1035, 1082, 1086 
 Strauss V. Newburg Elec. Ry., 6 N. Y. App. Div. 264, 39 N. Y. S. 998. . . 778 
 
 Stretton v. N. Y. H. & H. R. Co., 198 Mass. 573, 84 N. E. 799 662, 889 
 
 Strever v. Woodward, 160 Iowa 332, 141 N. W. 931, 6 N. C. C. A. 73 286, 1090 
 
 Strickland v. Whatley, 142 Ga. 802, 83 S. E. 856 316, 325 
 
 Stroud V. Hartford (Conn. 1916), 97 Atl. 336 153, 715 
 
 Studebaker Bros. v. Carter, iii S. W. Repr. (Tex.), 1086 304 
 
 Studebaker Bros. Co. v. Kitts, Tex. Civ. App. 1913, 152 S. W. 464, 6 N. 
 
 C. C. A. 63 " 550, 574, loii, 1088, 1091 
 
 Studer V. Plumlee, 130 Tenn. 517, 172 S. W. 305 296 
 
 Stulit V. United States, Etc., Co., Wash., 154 Pac. 137 520 
 
 Suell V. Jones, 49 Wash. 582, 96 Pac. 4 
 
 93, 96, 97, 282, 286, 666, 707, 851, 1043, 1087, 1099, iioo 
 
 Sullivan, Ex. parte, Tex. Crim. App. 178 S. W. 537 65, 815 
 
 Sullivan v. Adams, 69 Mass. 476, 477 363 
 
 Sullivan v. Boston E. Ry., 185 Mass. 602, 606, 71 N. E. 90 J77 
 
 Sullivan V. Boston El. Ry., 192 Mass. 37, 42, 75 N. E. 382 857 
 
 Sullivan V. Scripture, 85 Mass. 564 622, 1019 
 
 cxvii 
 
TABLE OF CASES CITED 
 
 Sullivan v. Smith, 123 Md. 546, 91 Atl. 456, 8 N. C. C. A. 378 
 
 637, 761, 822, 839, 8S9, 951 
 
 Super V. Model Twp., 88 Kan. 698, 129 Pac. 1162 221 
 
 Sutton V. Louisville (City) s Dana (Ky.), 23, 31 .• • • 55 
 
 Swagert/s Case, 195 Mass. 607, 608 80 
 
 Sweet V. Salt Lake City, 43 Utah 306, 134 Pac. 1167 214, 220, 226 
 
 Sweetman v. Green Bay, 147 Wis. 586, 132 N. W. Ilil 2I5, 225 
 
 Sweetman v. Snow, Mich. 1915, 153 N. W. 770 S63 
 
 Swenson v. Wells, 140 Wis. 316, 122 N. W. 724 1107 
 
 Switzer v. Sherwood, 80 Wash. 19, 141 Pac. 181, 9 N. C. C. A. 834 
 
 294, 599, 716. 999 
 Symington v. Sipes, 121 Md. 313, 88 Atl. 134, 4 N. C. C. A. 28, 47 L. R. A. 
 
 N. S. 662 582 
 
 Tanzer v. Read, 160 App. Div. 584, 145 N. Y. S. 708 598 
 
 Tasker v. Arey (Maine 1916), 96 Atl. ^z^ 767 
 
 Taxicab Co. of Baltimore City v. Emanuel, 125 Md. 246, 93 Atl. 807. .825, 827, 1084 
 
 Taxicab Co. v. Grant, 3 Ala. App. 393, 57 So. 141 402 
 
 Taxicab & Touring Co. v. Cabiness, 9 Ala. App. 549, 63 So. 774 706, 977 
 
 Taylor v. Carew, 140 Mass. 150, 3 N. E. 21 607 
 
 Taylor v. Glens' Falls Automobile Co., 161 N. Y. App. Div. 442, 146 
 
 N. Y. S. 699 841 
 
 Taylor v. Philadelphia Rapid Transit Co., 245 Pa. 189, 91 Atl. 631 887 
 
 Taylor v. Railway, 46 N. H. 313 169 
 
 Teal V. St. P. Ry., 96 Minn. 379, 104 N, W. 945 778 
 
 Templeton v. Williams, 24 Mont. Co. L. Reps. (Pa.) 194 375 
 
 Tenney v. Tuttle, 83 Mass. 185 1027 
 
 Tepper v. Boston El. Ry., 192 Mass. 46, 78 N. E. 384 274 
 
 Temes v. Giles, 93 Kan. 135, 144 Pac. 1014 306 
 
 Terra Haute v. Kersey, 159 Ind. 300, 302, 64 N. E. 469 38, 53, 84, 123, 126, 197 
 
 Terrill v. Walker, 5 Ala. App. 535, 59 So. 775 825, 828, 830 
 
 Terwilliger v. Long Island R. Co., 136 N. Y. S. 733, 152 App. D. 168 678 
 
 Tewkesbury v. Bennett, 31 Iowa 83 498 
 
 "The Texas," 134 Fed. Repr. 909 (N. Y.) 1905 141, 262 
 
 Texas & P. Ry. Co. v. Curlin, 13 Tex. Civ. App. 505, 36 S. W. 1003 786 
 
 Texas & P. Ry. Co. v. Eddleman, Tex. Civ. App. 1915, 175 S, W. 775, 875,877, 1102 
 Texas & P. Ry. Co. v. Hilgartner, Tex. Civ. App. 149 S. W. 1091, 7 N. C. 
 
 C. A. 454 70s, 881, 890 
 
 Texas Cent. R. v. Dumas (Tex. Civ. App. 1912), 149 S. W. 543 884, 885, loio 
 
 Texas Co. v. Veloz, Tex. Civ. App. 1913, 162 S. W. 377 158 
 
 Texas Traction Co. v. Wiley (Tex. Civ. App.), 164 S. W. 1028 
 
 170, 656, 673, 734, 913, 915, 1014 
 Thieike v. Albee, Oreg., 153 Pac. 793, Ore. 1915, 76 Or. 449, 150 Pac. 854 
 
 811,813,814,816 
 Thies V. Thomas, 77 N. Y. Suppl. 276, 1902 268, 273, 320, 331, 636, 638, 
 
 639, 649, 651 694, 723, 738,807,859,861,862,864865,867,986,1038,1039,1123 
 
TABI,E Olf CASES CITBD 
 
 Thomas v. Armitage, in Minn. 238, 126 N. W. 735 S7i. 572, 660, 696, 736 
 
 Thomas v. Chicago & G. T. Railway Co., 36 Mich. 494 1057 
 
 Thomas v. Hackney, 192 Ala. 27, 68 So. 296 408, 638 
 
 Thomas v. Illinois Cent. R. Co., 169 Iowa 337, 151 N. W. 387, 8 N. C. C. A. 
 
 1038 88] 
 
 Thomas v. Railroad Co., loi U. S. 71, 82 ill 
 
 Thomas v. Western Union, 100 Mass. 158 283 
 
 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 429 
 
 Thompkins v. Barnes, 145 App. Div. 637, 130 N. Y. S. 320, 4 N. C. C. A. 
 
 IS 279 
 
 Thompson v. Aultman & Taylor Machine Co., 94 Kan. 453, 146 Pac. 1188, 
 
 9 N. C. C. A. 309 IOCS 
 
 Thompson v. Bridgewater (Inhab.), 24 Mass. 187 223, 271 
 
 Thompson v. Los Angeles & S. D. B. Ry. Co., 169 Cal. 748, 134 Pac. 709, 
 
 4 N. C. C. A. 379 678, 734 
 
 Thompson v. The State, 131 Ala. 18, 31 So. 725 , . 97i, 980 
 
 Thorogood v. Bryan, 8 C. B. 114, 115 (Disapproved), (M. G. & S.) 
 
 m, 774. 779, 808 
 
 Thorpe v. Rutland & B. R. Co., 27 Vt. 140, 142 IS 
 
 Thourot V. Delahaye Import Co., 69 Misc. 351, 125 N. Y. S. 827 414 
 
 Tiffany & Co. v. Drummond, 168 Fed. Repr. 47 (N. Y.), 1909, 93 C. C. 
 
 A. 469 649, 654, 824, 834, 946 
 
 Tiley V. Detroit United Ry. Co., Mich, 1916, 155 N. W. 728 91 5 
 
 Tilley v. Hudson River Railroad, 24 N. Y. 471 1096 
 
 Tilton V. Boston & A. R., 169 Mass. 253, 47 N. E. 998 777 
 
 Timm v. Harrison, 109 111. 593, 601, 1885 79, 89 
 
 Timmins v. Fireman's Fund Ins. Co., N. C, 83 S. E. 688, 1915 519 
 
 Tincknell v. Ketchman, 78 Misc. 419, 139 N. Y. S. 620 525 
 
 Titus v. Inhab. of Northbridge, 97 Mass. 258 219, 651, 753 
 
 Titus V. Tangeman, 116 N. Y. App. Div. 977, loi N. Y. S. 1000. .591,587,633,772 
 
 Titusville v. Gahan, 34 Pa. Super. Ct. Reps. 613, 623 124 
 
 Tobin V. Murison, 5 Moore, P. C. no 415 
 
 Todd V. Old Colony, Etc., R., 85 Masi. 21 634 
 
 Todd V. Rowley, 90 Mass. 58 775, 1030 
 
 Tognazzini v. Freeman, 18 Cal. App. 468, 123 Pac. 540 977 
 
 Toledo V. Clopeck, 17 Ohio C. C. R. 585 1077 
 
 Toledo Ry. & Light Co. v. Mayers (Ohio 1916), 112 N. E. 1014 678, 782 
 
 Tooker v. Fowler & Sellars Co., 147 App Div. 164, 132 N. Y. S. 213 291, 759 
 
 Tooker v. Perkins, 86 Wash. 567, 150 Paa 1138 308, 724, 1056 
 
 Torgeson v. Tanf ord, 79 Wash, 56, 139 Pac. 648 1061, 1082 
 
 Tourtellot v. Rosebrook, 52 Mass. 460, 462 539 
 
 Tousley v. Pacific Electric Ry. Co., 166 Cal. 457, 137 Pac. 31, 8 N. C. C. A. 
 
 1033 678,875 
 
 Towers v. Errington, 78 Misc. 297, 138 N. Y. S. 119, 6 N. C. C. A. 369 556, 571 
 
 Towle v. Morse, 103 Me. 250, 68 Atl. 1044 
 
 205, 630, 638, 639, 64s, 649, 694, 702, 745, 747, 748, 764 
 
 cxix 
 
TABLE OF CASES CITED 
 
 Townsend v. Butterfield, i68 Cal. 564, 143 Pac. 760 734, 7S6, 1000 
 
 Tozier v. Haverhill, Etc., Ry., 187 Mass. 179, 180, 72 N. E. 953 732 
 
 Transfer Co. v. Kelly, 36 Ohio St. 86 778 
 
 Trask v. Boston & Maine R. R., 219 Mass. 410, 106 N. E. 1022, 8 N. C. C. 
 
 A. 1044 888, 1031 
 
 Travelers Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N. W. 703, 45 I,. 
 
 R. A. N. S. 331 392 
 
 Travers v. Hartman, Del. Super. Ct. 191S, 92 Atl. 85s 268, 710, 856 
 
 Tremaine v. Joline, 145 N. Y. S. 46, App. Term 900 
 
 Trenton, Diocese of, v. Toman, 74 N. J. Eq. 702, 70 Atl. 606 S, 261, 418, 808 
 
 Trimble v. Philadelphia, Etc., R. Co., 4 Boyce (Del.) 519, 89 Atl. 370 
 
 889,1083,1101 
 Tripp V. Taft, 219 Mass. 81, 106 N. E. 578, 7 N. C. C. A. 488, 8 N. C. C. A. 
 
 373 858, 861, 864 
 
 Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764, 2 N. C. C. 
 
 A. 860, 8 N. C. C. A. 1087 149, 550, 551, 749, 766 
 
 Troughton v. Manning, 92 1,. T. (K. B.) 855 (69 J. P. 207) . . 155, 314, 322, 336, 797 
 Trout Auto tivery Co. v. Peoples G. I,. & C. Co., 168 111. App. 56, 4 N. C. 
 
 C. A. II 282 
 
 Trout Brook Co. v. Hartford Elec. Light Co., 77 Conn. 338, 59 Atl. 405 
 
 1002, 1025 
 
 Trowbridge v. Danville St. Car Co., 19 S. E. 780 721 
 
 Tschirley v. Lambert, 72 Wash. 70, 126 Pac. 80 727, 770 
 
 Tubbs v. Turkey, 57 Mass. 440 371 
 
 Tucker v. White, 125 Mass. 344 , 512 
 
 Tudor V. Bowen, 152 N. C. 441, 67 S. E. 1015 .617, 649, 654, 741, 748 
 
 TuUer y. Talbot, 23 111. 357, 2d Wait's Act & Def en., pp. 63 40S, 543 
 
 Turck V. N. Y. Cent.. Etc., R., 108 App. Div. 142, 95 N. Y. Supp. iioo. .787, 879, 889 
 
 Turner v. Bennett, 161 Iowa 379, 142 S. W. 999 307, 3o8r7SO 
 
 Turner v. Hall, 74 N. J. L. 214, 64 Atl. 1060 656, 860, 859, 862 
 
 Turner v. Nye, 154 Mass. 579, 582, 28 N. E. 1048 18 
 
 Turney v. United Rys. Co. of St. Louis, 155 Mo. App. 513, 135 S. W. 93 678, 79o 
 
 Tutein V. Hurley, 98 Mass. 21 1 687 
 
 Tuttle V. Briscoe Mfg. Co. Mich. (1916), 155 N. W. 724 643, 839, 840 
 
 Tuttle V. Lawrence, 119 Mass. 276 10S4 
 
 Twombly v. C. P. N., Etc., R., 69 N. Y. 158 720 
 
 Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128 247, 595, 742, 743, 757 
 
 Tyler v. Stephan, 173 Ky. 770, 174 S. W. 790 246 
 
 Ude V. Fuller (Mich.), 153 N. W. 769 832 
 
 (Underwood v. Oskaloosa Traction & Light Co., 157 Iowa 352, 137 N. W. 
 
 933 894, 907 
 
 Union v. Michigan, 179 Mich. 157, 146 N. W. 338, 38 Ann. Cas. 128 61 
 
 Union v. State, 73 N. J. L. 529, 75 N. J. L. 500, 64 Atl. 163, 68 Atl. no. . . 57 
 
 Union Marine Ins. Co. v. Charles' Transfer Co., 186 Ala. 443, 65 So. 78. . 516 
 
 Union Pac. Ry. v. Lapsley, 51 Fed. Repr. 174, Iowa 779 
 
 cxx 
 
TABLE OF CASBS CITED 
 
 Union Pac. R. v. Ruzicka, 65 Neb. 621, 91 N. W. 543 1063 
 
 Union Traction Co. v. Howard, 173 Ind. 335, 90 N. E. 764 312, 638, 914, 1125 
 
 Union Transfer & Storage Co. v. Westcott Express Co., 140 N. Y. S. 98, 
 
 79 Misc. 408 765 
 
 United Rys. v. Biedler, 98 Md. 564, 56 Atl. 813 m 
 
 United Rys. & Electric Co. v. Grain, 123 Md. 332, 91 Atl. 405 788, 890 
 
 United Rys. Etc., Co. v. State (Md. 1915), 96 Atl. 261 904 
 
 United States v. Auto Import Co., 168 Fed. Repr. 242, 1909, 93 C. C. A. 
 
 4S6 144 
 
 U. S. V. Bonner, Fed. Cas. No. 14568 375 
 
 United States v. Boyd, 45 Fed. Repr. 851, 860 965 
 
 United States v. Dewitt, 9 Wall (U. S. S. C.) 41 i39 
 
 United States v. W. R. Grace & Co., 166 Fed. Repr. 748, 92 C. C. A. 596. . 142 
 
 United States v. Hart, i Peters Cir. Ct. Reps. 390, 392, Fed. Cas. 15316. . 140, 320 
 
 United States v. Hartwell, 26 Fed. Gas. No. 15318, p. 196 356 
 
 United States v. Kirby, 74 U. S. (7 Wall.) 482 141 
 
 United States v. Lee Huen, 118 Fed. Repr. 445 346 
 
 United Slates v. Norton, 91 U. S. 566, 568 Si 
 
 U. S. V. Orteaga, Fed. Cas. No. 15971 375 
 
 United States v. Reisinger, 128 U. S. 398, 32 L. Ed., 480 358 
 
 U. S. Restaurant & Realty Co. v. Schulte, 67 Misc. 660, 124 N. Y. S. 835. . 807 
 
 University Garage v. Heiser, 142 N. Y. S. 315 39i 
 
 Unwen v. State, yz N. J. Law 529, 64 Atl. 163 44, 54. 60, 65, 71, 136, 199 
 
 Upton V. Windham Township, 75 Conn. 288, 53 Atl. 660, 96 Am. St. R. 197 
 
 205, 213, 220 
 
 Valley Mercantile Co. v. St. Paul Fire Ins., 49 Minn. 430, 143 Pac. 559. . . 522 
 
 Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540 678, 761 
 
 Van Horn v. B. C. R. & N. Ry. Co., 59 Iowa 33, 12 N. W. 752 1032 
 
 Van Horn v. Simpson, 35 S. D. 640, 153 N. W. 883 689 
 
 Van Vranken v. Clifton Springs, 85 Hun. 67 (N. Y.) 778 
 
 Vaughn v. Menlove, 3 Bing. N. C_468, S. C. 4 Scott 244 634 
 
 Velie Motor Car Go. v. Kopmeier Motor Gar Co., 194 Fed. 324, 114 G. C. 
 
 A. 284, 7th Cir. 470 
 
 Verdon v. Crescent Automobile Co., 80 N. J. L. I99, 76 Atl. 346 859, 860 
 
 Vernor v. Michigan, 179 Mich. 157, 146 N. W. 338, 38 Ann. Cas. 128 83 
 
 Vesper v. Lavender, Tex. Civ. App. 1912, 149 S. W. 377 652, 818, 825, 837, loog 
 
 -Vicksburg, Etc., R. Co. v. Putman, 118 U. S. 545 (7 Sup. Ct., i L. Ed. 
 
 257) • 1043 
 
 Victorian Ry., Etc., v. Goultas, 13 App. Cas. 222 1096 
 
 Vincent v. Grandall, 131 N. Y. App. Div. 200, 115 N. Y. S. 600 240 
 
 Vincent v. Norton & T. St. Ry., 180 Mass. 104, 61 N. E. 822 278, 900 
 
 Vincent v. Stinehour, 7 Vt. 62 651 
 
 Vogler V. Central, Etc., R. 83 N. Y. App. Div. 103, 82 N. Y. S. 485 1047 
 
 Voorhees v. Earl, 2 Hill, 288 514 
 
 Vormus v. Tenn. Coal, Iron, Etc., Co., 97 Ala. 320, 331, 12 Co. 11 1 777 
 
 cxxi 
 
TABI,E OF CASBS CITED 
 
 W. S. Conrad Co. v. St. Paul City Ry., 130 Minn. 128, 153 N. W. 256 1104, 1106 
 
 Wabash v. Prast, 101 111. App. 167 345 
 
 Wabash & St. L. & P. R. v. Shacklett, 105 111. 364 m 
 
 Wachsmith v. Baltimore & Ohio R. Co., 233 Penn. 465, 82 Atl. 755, Ann. 
 
 Cas. 1913 B. 679, 4 N. C. C. A. 386 677 
 
 Wade V. Brents, 161 Ky. 607, 171 S. W. 188 296, 758, 1032 
 
 Wade V. Leroy, 20 How. 43 I09S 
 
 Wadley v. Dooly, 138 Ga. 275, 75 S. E. iS3 S4i, 656, 658, 706, 734, 1040, 1090 
 
 Wadsworth v. lUnion Pac. Ry., 18 Col. 600, 612, 33 Pac. Repr. 515 20 
 
 Waite V. North-Eastern Ry. El. B. & El. 719, 725 682 
 
 Waldeman v. Picker Bros., 140 N. Y. S. 1059 (N. Y. Mun. Ct.) 568 
 
 Wales V. Stetson, 2 Mass. 142 96 
 
 Walker v. Commonwealth, 40 Pa. Super. 638. 43, Ii9, I97. I99, 266 
 
 Walker v. Fuller, 223 Mass. 566, 112 N. E. 230 600 
 
 Walker v. Grout Bros. Auto Co., 124 Mo. App. 628, 102 S. W. 25 179, SOS, 607 
 
 Walkup V. Beebe, 139 Iowa 39s, n6 N. W. Repr. 321 
 
 322, 636, 649, 741, 756, 764, 1019, 1022, 1065, 1080, 1087, 1100, HIS, 1125 
 Wallace v. Keystone Automobile Co., 239 Pa. no, 86 Atl. 699, 4 N. C. C. 
 
 A. 32 4013, 568, 704,999 
 
 Wallace v. Waterhouse, 86 Conn. 546, 86 Atl. lO, Ann. Cas. 1914, B. 82 767 
 
 Walleigh v. Bean, 248 Pa. 339, 93 Atl. 1069 770, 993 
 
 Waller v. Missouri, K. & T. R. 59 Mo. App. 410, 426 700 
 
 Wallower v. Webb City, 171 Mo. App. 214, 156 S. W. 48 217 
 
 Walls V. Windsor, Del. Super. Ct. 92 Atl. 989 744 
 
 Walsh V. Boston & M. R., 171 Mass. 52, 50 N. E. 453 874 
 
 Walsh V. I<oorem, 180 Mass. 18, 61 N. E. 222 862, 993 
 
 Walters v. Chicago, M. & P. S. R. Co., 47 Mont. 501, 133 Pac. 357, 46 L. 
 
 R. A. (N. S.) 702 874, 880, 882 
 
 Walton V. Vanguard Motorbus Co., 25 Times L. Reps. (K. B.) 13, 51 1,. R. 
 
 A. N. S. 1006 note 170, 174, 698 
 
 Wanamaker v. Gresh, 237 Penn. 13, 84 Atl. 1108 393 
 
 Ward V. Brooklyn Heights R., 119 N. Y. App. Div. 487, 104 N. Y. S. 95. . 787 
 
 Ward V. Cfiicago, Etc., R., 85 Wis. 601 1063 
 
 Ward V. International Ry. Co., 206 N. Y. 83, 99 N. E. 262 Ann. Cas. 1914 
 
 A. 1170 679,916 
 
 Ward V. Meredith, 220 111. 66, 77 N. E. 118 638, 741, 744, 745, 756, 764, 1037 
 
 Ward V. Teller Reservoir and Irrigation Co., Colo. 1916, 153 Pac. 219 
 
 527, 550, 552, 587 
 
 Ware v. Lamar, 16 Ga. App. 560, 85 S. E. 824 271, 1004 
 
 Warington v. Bird, 167 Mo. App. 468, 151 S. W. 754 _ 552 
 
 Warner v. Holyoke, 112 Mass. 365 220 
 
 Warren v. Finn, 84 N. J. L. 206, 86 Atl. 530 389 
 
 Warren v. Walter Auto. Co., 50 Misc. 605, 99 N. Y. Supp. 396 484, 508, 511 
 
 Washburn v. Rainier Co., 130 N. Y. App. Div. 42, 114 N. Y. S. 424 
 
 452, 481, 483, 509 
 Washington Elec. V. T. Co. v. Dist. of Columbia, 19 D. C. App. 462. . .4, 8, 95, 810 
 
TABLE OF CASES CITED 
 
 Washington, Etc., Ry v. Gladmon, 15 Wall. 401 '. 823 
 
 Washington, Etc., R. v. Harmon's Admr., 147 U. S. S7i, 582, 13 S. Ct. 557 
 
 645. 671, 736 
 Wasser v. Northampton County, 249 Pa. 25, 94 Atl. 444, 9 N. C. C. A. 
 
 1022 7. 220 
 
 Waterhouse v. Waterloo, 164 la. 324, 145 N. W. 890, s N. C. C. A. 441 215 
 
 Watertown v. Mayo, 109 Mass. 315, 318 41 
 
 Watkins v. Brown, 14 Ga. App. 99, 80 S. E. 212 549 
 
 Watkins v. Curry, 103 Ark. 414, 147 S. W. 43, 402 R. A. N. S. 967 437 
 
 Watts V. Montgomery Traction Co., 175 Ala. 102, 57 So. 471 277, 709, 710 
 
 Watts V. Stroudsburg Passenger Ry., 34 Pa. Co. Ct. 373 660, 900, 901, 902 
 
 Weaver v. Carter, 28 Cal. App. 24, 152 Pac. 323 289, 290, 291, 869, 1015 
 
 Webb V. Moore, 136 Ky. 708, 12s S. W. 152 271, 273, 741, 746 
 
 Weber v. Swallow, 136 Wis. 46, 116 N. W. 844 834, 1046, 1055 
 
 Weber Implement Co. v. St. Louis A. M. & D. Assn. Mo. App. 1916, 181 
 
 S. W. 1025 148 
 
 Week V. Reno Traction Co., Nev. 1915, 149 Pac. 65 902 
 
 Weed V. Draper, 104 Mass. 28 '. S'S 
 
 Weeks v. Henrich, 40 D. C. App. 46, Ann. Cas. 1914, A. 972 419 
 
 Weil V. Hagen, 166 Ky. 750, 179 S. W. 83S 690, 1003 
 
 Weil V. Kreutzer, 134 Ky. 563, 121 S. W. 471, 24 L. R. A. N. S. 557 
 
 181, 183, 241, 720, 726, 738, 921, 937 
 
 Weiner v. Linton, 120 Md. 276, 87 Atl. 674, 4 N. C. C. A. 4 846 
 
 Weirich v. State, 140 Wis. 98, 126 N. W. 652 45, 95, 266, 312 
 
 Weiskopf V. Ritter (Ky. 1907), 97 S. W. 1 120 662, 977, 1087, 1115 
 
 Wellington, et al, v. Petitioners, 33 Mass. 16 Pick. 87, 95 17 
 
 Wellington v. Dower, Etc., Oil Co., 104 Mass. 64 429, 430 
 
 Wellington v. Rejmolds, 177 Ind. 49, 97 N. E. i55, 2 N. C. C. A. 300 
 
 637, 674, 1004, 1005, 1009,1010 
 Wells Fargo & Co. Express v. Keeler, Tex. Civ. App., 173 S. W. 926 
 
 758,1102,1103,1104 
 
 Welsh V. Lawrence, 2 Chitty (Eng.) 262 156 
 
 Welton V. Missouri, 91 U. S. 278 69 
 
 Wendt V. Bowman, 126 Minn. 509, 148 N. W. 568 702 
 
 Wennell v. Dawson, 88 Conn. 710, 92 Atl. 663, 8 N. C. C. A. 582 842 
 
 Wentworth v. Waterbury, Vt. 1916, 96 Atl. 334 309, 669, 678, 679, 791 
 
 Wescoat v. Decker, 85 N. J. L. 716, 90 Atl. 290 726, 1124 
 
 West V. New York Transp. Co., 47 Misc. 603, 94 N. Y. Supp. 426 631, 829, 832 
 
 West Chicago St. Ry. v. Dougherty, 209 111. 241, 70 N. E. 586 ^^^ 
 
 Westcott V. Waterloo C. E. & N. Ry. So. (Iowa 1916), 155 N. W. 255 906, 1023 
 
 West Const. Co. v. White, 130 Tenn. 520, 172 S. W. 301 226 
 
 Western v. Grand Rapids Ry. Co., 180 Mich. 373, 147 N. W. 630 708 
 
 Western Investment & Land Co. v. First Nat. Bank, 23 Colo. 143, 128 
 
 Pac. 476 547 
 
 Westminster Inv. Co. v. McCurtain, 39 Utah 544, 118 Pac. 564 414 
 
 Weston V. Dist. of Columbia, 23 D. C. App. 367 • 261 
 
 cxxiii 
 
TABI,E Ot CASES CITED 
 
 W€stover v. Grand Rapids Ry. Co., i8o Mich. 373, 147 N. W. 630 894, 905 
 
 Wettengel v. United States "Lloyds," 157 Wis. 433, 147 N. W. 360, Ann. 
 
 Cas. 1915 A. 626 520 
 
 Weymire v. Wolfe, 52 Iowa 533, 3 N. W. 541 996 
 
 Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186 624 
 
 Wheaton v. Cadillac Auto Co., 143 Mich. 21, 106 N. W. 399 442, 473, 492 
 
 Wheeler v. Flatonia (Tex. Civ. App.), 155 S. W. 951 215, 307 
 
 Wheeler v. Hall, 1S7 Mo. App. 38, 137 S. W. 63 271, 277, 299 
 
 Wheeler v. Wason Mfg. Co., 135 Mass. 294, 297 409 
 
 Wherry v. Duluth, Etc., R., 64 Minn. 415, 418, 67 N. W. 223 647 
 
 Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236 I5I,S7S. S8o, 581, 1021 
 
 White V. Creemer, 175 Mass. 567, 568, 56 N. E. 832 356 
 
 White V. Duggan, 140 Mass. 18 .• 923 
 
 White V. Sander, 168 Mass. 296, 47 N. E. 90 1097 
 
 White, Etc., Co. v. Phenix, Etc., Co., 188 Mass. 407, 74 N. E. 600 iioi 
 
 White Automobile Co. v. Dorsey, 119 Md. 251, 86 Atl. 617. . .453, 467, 5^3, SIS, I0S7 
 White Oak Coal Co. v. Rivoux, 88 Ohio St. 18, 102 N. E. 302, 46 L. R. A. 
 
 N. S. 1091, Ann. Cas. 1914 C. 1082 S49, SSO, 573 
 
 Whitehead v. Keyes, 85 Mass. 501 370, 371 
 
 Whitneyv. Leominster, 136 Mass. 25 1054 
 
 Whitney v. Sioux City (Iowa 1915), 154 N. W. 497 IQ21, 1089 
 
 Whittaker v. Helena, 14 Mont. 124, 35 Pac. 904 778 
 
 Whitwell V. Wolf, 127 Minn. 529, 149 N. W. 299 171, 758 
 
 Wiar V. Wabash R. Co., 162 Iowa 702, 144 N. W. 703 876, 1028 
 
 Wickham v. Conklin, 8 John. N. Y. 220 524 
 
 Wickham v. Traders' State Bank, 95 Kan. 657, 149 Pac. 433 7 
 
 Wickstrum, In re, 92 Neb. 523, 138 N. W. 733 I7S 
 
 Wiedeman v. St. Louis Taxicab Co., 182 Mo. App. 530, 165 S. W. 1105. . . 151, 292 
 
 Wier V. American Locomotive Co., 215 Mass. 303, 102 N. E. 481 2, 471 
 
 Wight V. Long, 160 Ky. 636, 170 S. W. 25 1009 
 
 Wilder, In re, (Dist. Ct. Cal.), 221 Fed. 476 803 
 
 Wilds V. Hudson, Etc., R., 24 N. Y. 430, 432 661 
 
 Wilkins V. N. Y. Transp. Co., 52 Misc. 167, loi N. Y. Supp. 650 
 
 268,829,830,833,869 
 
 Wilkins v. Ry. & Bridge Co., 96 Iowa 668, 65 N. W. 987 895 
 
 Wilkinson v. Myatt Dicks Motor Co., 136 La. 977, 68 So. 96 563 
 
 Willard v. The People, s 111. 461, 475 131 
 
 Williams v. Baldrey, Oklahoma 1915, 152 Pac. 814 279, 1115 
 
 Williams v. Benson, 87 Kan. 421, 124 Pac. 531 826, 832, 1047, 1115 
 
 Williams v. Brennan, 213 Mass. 54, 99 N. E. 516 767 
 
 Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633, 8 N. C. C. A. 380 172 
 
 Williams v. Kansas City, Mo. App., 177 S. W. 783 ;302, 546, 771, 1123 
 
 Williams v. Ludwig Floral Co. (Pa. 1916), 97 Atl. 206 549 
 
 Williams v. Raper, 139 Ga. 811, 78 S. E. 253 247 
 
 Williams v. Richards, 3 Car. L. K (Eng.), 81 847 
 
 Williams v. Withington, 88 Kan. 809, 129 Pac. 1148, N. C. C. A. 382 781 
 
 cxxiv 
 
TABIvE OF CASES CITED 
 
 Williams Mfg. Co. v. Standard Brass Co., 173 Mass. 356, 53 N. E. 862 443 
 
 Willis V. Harby, 159 App. Div. 94, 144 N. Y. S. IS4 838 
 
 Wills V. Powers, Mass. 1914, 102 N. E. 912, 4 N. C. C. A. S 851 
 
 Wilmott V. Southwell, 25 Law Times Reps., No. 2, p. 22 162 
 
 Wilson V. Brett, 11 M. & W. iig (Eng.) 642 
 
 Wilson V. Lawrence, 139 Mass. 318, i N. E. 278 497, S09 
 
 Wilson V. Puget Sound Electric Ry. Co., 52 Wash. 522, loi Pac. 50. .774, 775, 783 
 
 Wilson V. Wyckoflf, 133 N. Y. App. Div. 92, 117 N. Y. Supp. 783 39o 
 
 "Wimpfheimer v. A. T. Demarest & Co., 78 Misc. 171, 137 N. Y. S. 908. . . 390 
 
 Winckler v. Great W. Ry., 18 U. C. (C. P.) 250 779 
 
 Winckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061 848, 858, 861 
 
 Wind V. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. N. S. 1178 552 
 
 Winfrey v. Lazarus, 148 Mo. App. 388, 128 S. W. 276 535, 59i, 597 
 
 Winkfield, The, 1902 P. D. 42 642 
 
 Winn V. Haliday (Miss.), 1916, 69 So. 685 594 
 
 Winner v. Linton, 120 Md. 276, 87 Atl. 674, 4 N. C. C. A. 4 549 
 
 Winter v. Van Blarcom, 258 Mo. 418, 167 S. W. 498 849, 858, 1023 
 
 Winterbottom v. HoUiday, 6 Exch. 761 427 
 
 Winterbottom v. Wright, 10 Mees & W. 109 428 
 
 Winton Motor Carriage Co. v. Blomberg, 84 Wash. 451, 147 Pac. 21 456 
 
 Wiswell v. Doyle, l6o Mass. 42, 35 N. E. 107 856 
 
 Witherell v. Murphy, 147 Mass. 417 487 
 
 Withey v. Fowler Co., 164 Iowa Z17t I45 N. W. 923 
 
 98, 297, 678, 679, 680, 781, 1056, 1083 
 
 Witmer v. Bessemer & L. E. R. Co., 241 Pa. 112, 88 Atl. 314 906 
 
 Witmore v. South Boston Iron Co., 2 Allen 52 504 
 
 Witte V. Mitchell-Lewis Motor Co., 244 Pa. 172, 90 Atl. 528 578 
 
 Wolcott V. Mount, 36 N. J. L. 262, 266 497 
 
 Wolfe v. Ives, 83 Conn. 174, 76 Atl. Repr. 526 705, 711, 715, 1070, 1083 
 
 Wood v. Boston El. Ry., 1^8 Mass. 161, 74 N. E. 298 289 
 
 Wood Transfer Co. v. Shelton, 180 Ind. 273, loi N. E. 718 999, 1008, loio, 1105 
 
 Woodson v. Milwaukee, Etc., R., 21 Minn. 60, 65 647 
 
 Works V. Junction R. R., 5 McLean, 425, 438 203 
 
 Worley v. Metropolitkn Motor Car Co., 72 Wash. 243, 130 Pac. 107 613 
 
 Worthington, B,x parte, 21 Cal. App. 497, 132 Pac. 82 1006 
 
 Wright V. Crane, 142 Mich. 508, 106 N. W. 71 207, dzz, 636, 1034, 1063, 1064 
 
 Wright V. Fleischman, 41 Misc. 534, 85 N. Y. Supp. 62 264 
 
 Wright V. Maiden & M. R. Co., 4 Allen (86 Mass.) 283 634, 862, 912, 1008 
 
 Wright V. Mitchell (Penn. 1916), 97 Atl. 478 289, 719, 769 
 
 Wright V. United States, 108 Fed. Repr. 809 960 
 
 Wright V. Young, 160 Ky. 636, 170 S. W. 25 171 
 
 Wrinn v. Jones, iii Mass. 360 274, 275, 289, 675 
 
 Wrinn v. City of Lowell, 83 Mass. 177 868 
 
 Wynegar v. The State, 157 Ind. 577, 579, 62 N. E. 38 472 
 
 Wynehamer v. People, 13 N. Y. 378, 391 15 
 
 CXXV 
 
TABLB OF CASES CITED 
 
 Yarbrough v. Carter, 179 Ala. 356, 60 So. 833 .130, 999 
 
 Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799 in 
 
 Yingst V. Lebanon R., 167 Pa. St. 438, 31 Atl. 687 1062 
 
 Young V. Herrraan, 119 N. Y. App. Div. 44S, 192 N. Y. 554 772 
 
 ' Yttregard v. Young, tj Wash. 523, 137 Pac. 1043 741 
 
 Zabinsko v. Bedford Garage, 134 App. Div. 318, 118 N. Y. Supp. 959 
 
 1078, 1 104, 1 109 
 Zabriskie v. Erie R. Co., 1914 N. J., 88 Atl. 824, 4 N. C. C. A. 778 ...... . 601 
 
 Zalotuchin v. Metr. St. Ry., 127 Mo. App. 577, 106 S. W. 548 1055 
 
 Zellmer v. McTaigue, 170 Iowa 534, 153 N. W. 77 287, 1064, 1106 
 
 Zimmerman v. Union Ry. Co., 28 N. Y. App. Div. 445, 51 N. Y. S. i 796 
 
 Zoltovski V. Gzella, 159 Mich. 620, 124 N. W. 527 859, 860, 1047 
 
 Zolpher v. Camden, Etc., R., 69 N. J. Law (40 Vroom) 417, 55 249 1055, 1062 
 
 Zorger v. Greensburgh, 60 Ind. i, 5 100 
 
 Zorn V. New York, 85 Misc. 4S, 147 N. Y. S. 70 216, 222 
 
THE LAW APPLIED TO 
 
 MOTOR VEHICLES 
 
 CHAPTER I 
 
 DEFINITIONS 
 § I. Automobile. 
 
 2. "Automobile" includes "Taxicab," "Motorcycle" and "Auto Truck." 
 
 3. Motor Vehicle includes Motorcycles. 
 
 4. "Carriage" includes Automobile and Motorcycle. 
 
 5. "Pleasure Carriage." 
 
 6. Not a Tool or Implement of Trade. 
 
 7. The word "vehicle." 
 
 8. Hackney or Stage Coach. 
 
 9. "Carrying a load." 
 ID. "Motor" defined. 
 
 11. Statute definitions. 
 
 12. Classification of motor vehicles in the Massachusetts statute. 
 
 13. "Commercial motor vehicle.'' 
 
 14. Garage keeper a Wheelwright. 
 
 15. As to the Use of Words in General. 
 
 § I. Automobile. — Upon the threshold of our subject we are met 
 by many new words which in an incredibly short space of time have at- 
 tained currency. With the birth and growth of the motor vehicle, not 
 only have names been coined in astonishing numbers, but languages 
 ancient and modern have been drawn from to meet the real or imaginary 
 needs. The word "automobile" is a conspicuous example of this gath- 
 ering together. "Auto" is taken from the Greek ain-is meaning self. 
 "Mobile^' ori^nates in the Latin mohilis, movable, and comes to us 
 bodily from the French. The two joined coin the new word, resulting 
 in an expression of something that is self movable, to which we attach 
 by implication, the idea of a vehicle, and the mintage is complete.^ 
 
 To attempt to define all the expressions that have been invented in 
 this very modern industry and its ramifications, belongs rather to a 
 
 iSee Webster's Int. Diet. 1910; Bonds v. State, 16 Ga. App. 401, 85 S. E. 629. 
 
§ 2 DEFINITIONS 
 
 lexicographer of technical terms than to the present undertaking. 
 Whenever in the following pages, it is necessary to a proper under- 
 standing of the topic then under consideration, to inquire into the 
 meaning of words, definitions will be supplied. At this time our con- 
 cern is with those expressions that are fundamental to the subject. 
 
 An indictment is not defective because it does not state the motive 
 power of an automobile. The word "automobile" has a well-fixed 
 significance in the popular understanding and does not include a vehicle 
 propelled by "muscular power."^ 
 
 § 2. "Automobile" includes "Taxicab," "Motorcycle" and 
 "Auto Truck." — The word "automobile" commonly includes a taxi- 
 cab^ and is sufficiently comprehensive to include auto trucks, whether 
 or not used for hire.* 
 
 A motor vehicle law having for its object the protection of travellers 
 on the highway and applying to automobiles, locomobiles and vehicles 
 "of like character" does apply to motorcycles. 
 
 "It is a matter of common knowledge that a motorcycle propelled 
 by gasoline is capable of as high or a higher rate of speed than may 
 be attained by a four-wheeled automobile ; and it is equally well known 
 that a motorcycle is even more noisy and is a more alarming object to 
 country-bred domestic animals than is a larger type of automobile."' 
 
 § 3. Motor Vehicle includes Motorcycles. — Combining the 
 words which have been considered, we have as a result the comprehen- 
 sive expression descriptive of this new method of transporting per- 
 sons and goods, to wit, a mechanically self-propelled vehicle, which, 
 in its aspect as a conveyer of persons, is generically a "horse-less car- 
 riage." In the Encyclopedia Americana, 1905, is to be found the fol- 
 lowing : 
 
 "Motor vehicle." "Denoting a vehicle moved by inanimate 
 power of any description, generated or stored within it, and in- 
 tended for the transportation of either goods or persons on 
 common highways. As an adjective the word denotes broadly 
 some relation to mechanically driven vehicles." 
 
 ^Carter v. State, 12 Ga. App. 430, 78 S. E 205. 
 
 'Wier V. American Locomotive Co., 21s Mass. 303, 102 N. E. 481. 
 
 *KeUaher v. Portland, 57 Oregon 573, 112 Pac. 1076. 
 
 "Bonds V. State, 16 Ga. App. 401, 85 S. E. 629. 
 
DEMNITIONS § 4 
 
 It is settled both in England^ and in this country that a motorcycle is 
 a motor vehicle. The court in the latter case remarks : "It seems 
 clear to us that a motorcycle is a motor vehicle. * * * It is argued that 
 from its size and conformation the legislature could not have intended 
 that lamps and large numbers should be placed upon it. This motor 
 vehicle although not a large machine, can easily run at the rate of forty 
 miles an hour and the danger of injury from it to pedestrians and others 
 differs only in degree from that presented by the larger motor vehicles. 
 All of the reasons which would induce and require the legislature to 
 regulate automobiles apply to the regulation of motorcycles. The court 
 is satisfied that they are motor vehicles within the contemplation of this 
 act, and subject to its provisions."' 
 
 § 4. "Carriage" includes Automobile and Motorcycle. — All de- 
 scriptions of the word "vehicle" employ the term "carriage," which is 
 an expression of wide application, the generally accepted definition be- 
 ing: 
 
 "The act of carrying, transporting or conveying. That which 
 carries or conveys, as a wheeled vehicle."* 
 In the American and English Bnc. of Law, a "carriage" is described 
 as : "That which carries, especially on wheels ; a vehicle." Probably 
 the most complete judicial review of the meaning of the word is con- 
 tained in the opinion of Mr. Justice Taylor, in a recent case.' 
 
 There seems to be a common assent among the authorities, to confine 
 the meaning of "carriage" to the transportation of persons distinguished 
 from that of goods and property. In England this distinction is made 
 a matter of statute, the words "cart, wagon or other such vehicle," being 
 used to indicate the means of transporting "goods or burden."^" 
 
 There has been considerable discussion as to whether an automobile 
 falls within the classification "carriage," using that term in the same 
 sense as that in which it is applied to a horse-drawn vehicle. When 
 bicycles appeared as a means of ordinary travel, the same question was 
 argued in America and in England, the conclusion being general that 
 they were "carriages" within the common meaning of the expression. 
 
 'King V. Justices, 2 Irish Reps. K. B. 698. 
 'People V. Smith, 156 Mich. 173, 120 N. Wi 581. 
 ^Webster's Diet., Century Diet. 
 
 »Cream City R. Co. v. Chicago, M. & St. P. Ry., 63 Wis. 93, 98. 
 loCustoms and Inland Revenue Act, 51 & 52 Vict., c. 8, s. 4, 1888; Pratt & 
 Mack. Law of Highways, 15 Ed. 709, 713. 
 
§ 4 DEFINITIONS 
 
 But even as to bicycles the assent was not without the reservation that 
 as contrasted with vehicles of an earlier generation they are not ejusdem 
 generis}^ 
 
 In the application of the term to automobiles the cases show that 
 whenever the question has been raised, it related to the scope or mean- 
 ing of the word "carriage" as used in a statute or under circumstances 
 where the expression is to be taken in an exact interpretation, as dis- 
 tinguished from the broad colloquial sense. Thus in a case involving 
 the construction of the terms of a deed,^^ Vice Chancellor Walker 
 says: 
 
 "An automobile is a 'carriage' within the meaning of a cove- 
 nant in a deed reserving a strip of land for a carriageway for- 
 ever." 
 
 In a Pennsylvania case Presiding Judge Frazer said : 
 
 "While automobiles are not specifically named in the Act of 
 assembly, they are certainly carriages," (citing Webster's Diet.). 
 "They may undoubtedly be considered as carriages within the 
 meaning of the Act of 1868" (which provided that "every de- 
 scription of carriages" should be subject to license) . Conway v. 
 Town of Jefferson, 46 N. H. 521, cited. 
 
 Discussing the question with reference to a long standing Massa- 
 chusetts statute requiring towns to keep highways in repair,^* Mr. 
 Chief Justice Knowlton remarks concerning an automobile : 
 
 "It is a vehicle that is used in carrying one or more persons. 
 But * * * 'it is more properly a machine than a carriage.' * * * 
 
 It is a carriage in a broad sense of the word. But its features 
 as a piece of machinery are far more striking than those which 
 it possesses as a carriage. It is commonly spoken of as a ma- 
 chine. * * * Horses, teams and carriages are grouped together in 
 the statute, and the carriages referred to are those drawn by 
 
 "Richardson v. Danvers, 176 Mass. 413, 414. 57 N. E. 688; Holland v. Bartch, 
 120 Ind. 46, SI, 22 N. E. 83; Shadewald v. Phillips, 72 Minn. 520, 75 N. W. 7i7; 
 Gagnier v. City of Fargo, 11 N. Dak. 73, 88 N. W. 1030; Taylor v. Goodwin, 4 
 L. R. Q. B. D. 228 (Mellor, J.). 
 
 i^Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606. 
 
 isCom. V. Hawkins, 14 Pa. Dist. Reps. 592. 
 
 i*Doherty v. Inhab. of Ayer, 197 Mass. 241, 245, 83 N. E. 677. 
 
DEFINITIONS § 4 
 
 animal power. * * * An automobile is not a carriage within the 
 meaning of that word in the R. L,., c. 51, s. i." 
 
 In another case, moreover,^° the same court, in a public prosecution 
 for refusing to pay the lawful "hack or carriage fare" in violation of 
 statute, speaking again by the Chief Justice, observe that the statute, 
 being of a criminal nature, falls within the rule of strict construction, 
 and that it is certain that when the statute was enacted, the legislature : 
 
 "Had no thought of a vehicle * * * whose operation is similar 
 to a locomotive engine on railroads. * * * We are of opinion 
 that automobiles are not included in this statute." 
 
 A recent decision in Texas^* grew out of an effort to prevent the 
 sheriff from selling an automobile at the instance of an execution credi- 
 tor, and was based upon the ground that the statute exempts from levy 
 and sale "one carriage or buggy." In an interesting opinion holding 
 that the vehicle is a carriage within the meaning of that act, Mr. Justice 
 Speer says : 
 
 "So that it appears an automobile may or may not be a car- 
 riage according as the term is used in its broad or narrow sense, 
 and the well recognized rule for statutory construction might 
 well call for an afifirmative answer in one case and a negative 
 answer in another. For instance, if the statute is a penal one, 
 a strict construction is the rule, and the use of the term 'carriage' 
 would perhaps not include an automobile, while if the statute is 
 one to be liberally construed, the broader interpretation would be 
 adopted, and 'carriage' would include automobile."^' 
 
 This decision has been followed in recent cases.^* 
 A motorcycle may also be classed as a "carriage" as used in the 
 statutes as remarked by Lord Alverstone in an English case : 
 
 isCommonwealth v. Goldman, 205 Mass. 4CX), pi N. E. 392. 
 
 "Parker v. Sweet, Tex. Civ. App., 127 S. W. 881. 
 
 I'See also Washington Elec. V. T. Co. v. Dist. of Columbia, 19 D. C. App. 462, 
 Baker v. Pall River, 187 Mass. 53, 72 N. E. 336; District of Columbia v. Pickling, 
 33 D. C. App. 371 ; Scranton v. Laurel Run Turnpike Co., 225 Pa. St. 82, 73 Atl. 
 1063. 
 
 J^sPeevehouse v. Smith, Tex. Civ. App., 152 S. W. 1 196; Hammond v. Pickett, 
 Tex. Civ. App., 158 S. W. 174; Patten v. Sturgeon, 214 Ped. 65, 130 C. C. A. gos, 
 8th Cir. as to the Oklahoma exemption statute. 
 
§ 5 DEFINITIONS 
 
 "I do not think that there is anything which could give rise to 
 a reasonable doubt that a bicycle propelled by some mechanical 
 means or other, and carrying a person would be a carriage 
 within the meaning of this act. * * * Having regard to the 
 gradual extension of this act and common knowledge of what is 
 going on, it seems to me that a machine which carries a person 
 along a road is none the less a 'carriage' because it is a very un- 
 comfortable thing and because the person on it is shaken very 
 much when he is going along."^" 
 
 § s. "Pleasure carriage.'""' — Carriages have been classified as those 
 for pleasure, 'and those not for pleasure ; the broad distinction being 
 between vehicles used for the transportation of goods and those used 
 for the conveyance of passengers. But whether in the United States, 
 the expression excludes hired vehicles and hacks, is by no means clear. 
 In England by statute" "hackney carriages" are separately classified. 
 In Middlesex Turnpike Co. v. Wentworth^^ the following definition is 
 given of the type under consideration : — 
 
 "A pleasure carriage is one for the more easy, convenient and 
 comfortable transportation of persons." 
 
 No special form, or shape, or style of vehicle is necessary to meet 
 the requirement of the definition. In Moss v. More,^^ the vehicle was a 
 wagon "made with a spring seat and paneled sides, and which was not 
 used for farming purposes, or for carrying goods." The court held 
 that it was a pleasure carriage. In Bondy v. New York City Ry. Co.^* 
 the Court seem to distinguish a pleasure automobile from similar ve- 
 hicles of other character, by the remark, that the machine in question 
 was not shown "to have been used for the purposes of business, or as a 
 source of profit." 
 
 § 6. Not a Tool or Implement of Trade. — Many local statutes ex- 
 empt from civil process or from taxation tools or implements of trade 
 and such statutes are generally held not to include automobiles. 
 
 An automobile must be claimed to be exempt from execution under 
 
 i»0'Donoghue v. Moon, 90 L. Times R., N. S. K. B. Div. 843. 
 
 ""See § 1745, Value of use. 
 
 2i"Customs and Inland Revenue Act," 51 and 52 Vict., c. 8, s. 4, 1888. 
 
 229 Conn. 371, 373- 
 
 2818 Johns. N. Y. 128, 129. 
 
 2*56 N. Y. Misc. 602, 107 N. Y. Supp. 31. 
 
 6 
 
DEI^INITIONS § 7 
 
 state law as "tools or apparatus belonging to a trade or profession" 
 although used and necessary by a real estate man in his business.^' 
 
 An automobile owned and located in a taxing district is taxable there 
 as such and it is not exempt as being "farming utensils, stock on hand 
 of a manufacturer or tradesman or goods, wares and merchandise im- 
 'ported.29 
 
 As motor vehicles however become more and more recognized as 
 necessities under the conditions of modern business there seems no 
 reason why a motor vehicle used and considered necessary for trade 
 should not be considered as a proper implement of trade. Thus it has 
 been held that an automobile may be exempt from execution as a neces- 
 sary implement used for the purpose of carrying on a grain business.^^ 
 
 § 7. The word "vehicle". — In the outset it is of consequence to 
 know the scope of the word "vehicle." The term is generic and, ac- 
 cording to the dictionaries all of which are in harmony, denotes : 
 
 "Any carriage moving on land, either on wheels or on run- 
 ners; a conveyance. That which is used as an instrument of 
 conveyance, transmission or communication."^' 
 
 In law the meaning is not substantially different from that of com- 
 mon acceptation. In the United States Compiled Statutes, 1901, section 
 4, page 4, it is said : 
 
 "The word 'vehicle' includes every description of carriage or 
 other artificial contrivance used or capable of being used, as a 
 means of transportation on land." 
 
 The popular and statute use of the word has the sanction of the 
 courts.^^ 
 
 An automobile is a "vehicle" under the highway act,^" or within the 
 exemption laws,^^ and an ordinance imposing a license tax on vehicles 
 
 25Hammond v. Pickett, Tex. Civ. App., 158 S. W. 174. To the same effect see 
 Eastern Mfg. Co. v. Thomas, Sheriff, 82 S. C. 509, 64 S. E. Repn 401. 
 
 2«Newark Public Schools v. Wright, Del. Super., 88 Atl. 462. 
 
 2'Wickham v. Traders' State Bank, 95 Kan. 657, 149 Pac. 433. See also § 826. 
 
 28The Century Dictionary. 
 
 2»Davis V. Petrinovich, 21 So. 344, 112 Ala. 654, Bouvier's Diet. (Rawles). 
 
 soposter v. Curtis, 213 Mass. 79, 99 N. E. 961, 42 L. R. N. S. 188 (note), Ann. 
 Cas. 1913, E. 1116. 
 
 8il<anjes v. Armstrong, 162 Iowa 327, 144 N. W. I, 49 L. R. A. N. S. 69. 
 
 7 
 
§ 8 DEFINITIONS 
 
 enacted before automobiles came into use is applicable to automobiles.'^ 
 
 So under regulations that every licensed vehicle for the conveyance 
 of passengers shall be considered a hack, an automobile used for hire is 
 a vehicle.^' 
 
 So the word "vehicle" also includes a motorcycle.'* 
 
 § 8. Hackney or Stage Coach. — An automobile used for hire may 
 be a "hackney coach"'^ and a "hackman" may be a driver of an auto- 
 mobile used for hire although the term was used in an ordinance enacted 
 before automobiles were used.'* 
 
 Furthermore a city charter giving authority to the city to regulate 
 and license the use of a hackney coach, cab or carriage includes auto- 
 mobiles used for renting although both the statute and the ordinance 
 were passed before automobiles were used.'' 
 
 The fact that rented automobiles had no stands on the street but 
 were kept in the garage and sent out when called for did not prevent 
 their being classed as "hackney coaches" and their drivers as hackmen." 
 
 An automobile used as a stage coach for the carriage of the mails, 
 freight and passengers is a stage coach within the meaning of the 
 statute imposing tolls on stage coaches.'' 
 
 § 9. Carrying a Load. — The expression "carrying a load," seems 
 to be indiscriminately applicable to vehicles of all character. In an 
 Illinois case,*" the Supreme Court say : 
 
 "We think it clear a buggy, carriage or automobile, when in 
 use upon the public streets of the city, whether used for pleasure 
 or for hire, if persons are carried therein, within the meaning of 
 the statute and ordinance, is in use carrying a load." 
 
 22Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199. 
 
 s^Gassenheimer v. Dist. of Columbia, 26 App. D. C. 557, 1906, 2d case; also 
 25 App. D. C. 179. But see Washington Electric Co. v. District of Columbia, 19 
 D. C. 462, holding that an electric carriage or automobile is not a hack, cab, omni- 
 bus or other vehicle for hire under the Act of 1871. 
 
 8*People V. Smith, 156 Mich. 173, 120 N. W. 581. 
 
 ssState V. Jarvis, Vt 95 Atl. 541. 
 
 seState v. Jarvis, Vt. 95 Atl. 541. 
 
 s'State v. Jarvis, Vt. 95 Atl. 541. 
 
 ssState V. Jarvis, Vt. 95 Atl. 541. Hack line defined see post § 61. 
 
 »»Burton v. Monticello & Burnside Turnpike Co., Ky. 173 S. W. 144. 
 
 ioHarder v. City of Chicago, 235 111. 294, 85 N. E. 255. 
 
 8 
 
DEFINITIONS § lO 
 
 § lo. "Motor" defined. — The Century Dictionary thus describes the 
 word: 
 
 Motor. "That which imparts motion ; a source or originator 
 of mechanical power; a moving power, as water, steam, etc." 
 In mechanics, a prime mover ; a contrivance for developing and 
 applying mechanically some natural force, as heat, pressure, 
 weight, the tide, or the wind; a machine which transforms the 
 energy of water, steam, or electricity into mechanical energy; 
 as an electric motor." 
 
 In Green v. Trenton*^ Mr. Justice Reed, referring to this subject 
 says: 
 
 "■The views of the experts also make it entirely clear that 
 while, as one witness says, 'motor' was sometimes loosely used 
 to designate a whole car, it was never employed to designate 
 anything not a part of the car. * * * j think it clear that the 
 word 'motor' meant the motion-producing contrivance in the 
 car." 
 
 § II. Statute definitions. — Motor vehicles are defined in most of 
 the states in their automobile laws, as having a somewhat technical 
 meaning. The statute of Massachusetts, Act of 1909, Chapter 534, Sec. 
 I, is fairly illustrative of the definition contained in similar statutes in 
 other states : 
 
 " 'Motor vehicles' shall include automobiles, motorcycles and 
 all other vehicles propelled by power other than muscular power, 
 except railroad and railway cars and motor vehicles running 
 only upon rails or tracks, ambulances, fire engines and apparatus, 
 police patrol wagons and other vehicles used by the police de- 
 partment of any city or town or park board solely for the official 
 business of such department or board, road rollers, and street 
 sprinklers." 
 
 The fact that the statute excepts from its application certain varieties 
 of vehicles of the same general physical character, does not render it 
 invalid.*^ 
 
 § 12. Classification of motor vehicles in the Massachusetts stat- 
 ute.*' — In the Massachusetts Act of 1909, Chapter 534, § 29, for the 
 
 «S4 N. J. h. 92, 98, 23 Atl. 281. 
 
 *2Ex parte Snowden, 12 Cal. App. 521, 107 Pac. 724. 
 
 *'See § lOS, Graded License Fees. 
 
§ 13 DEMNITIONS 
 
 purpose of the collection of license fees, motor vehicles are separated 
 into three general classes namely, (a) "commercial motor vehicles," 
 (b), "automobiles," and (c), "motorcycles." There are other classi- 
 fications, but it is with the first mentioned that we are now concerned. 
 § 13. "Commercial motor vehicles." — In a previous section, (§ 4) 
 the distinction was considered between a "carriage" and vehicles for the 
 transportation of goods. Inasmuch as "commerce" imports "inter- 
 change of goods, merchandise or property of any kind," and "com- 
 mercial" means, "pertaining to commerce or trade," we are enabled to 
 arrive with a reasonable degree of certainty, at the intention of the legis- 
 lature in using the phrase in question. The precise language of section 
 29,** in this respect, is as follows : 
 
 "The commission or its authorized agents shall collect fees as 
 follows : * * * For the registration of every commercial motor 
 vehicle, used solely as such, and every motor truck, regardless 
 of the horsepower thereof, five dollars." 
 
 In the light of the definitions contained in the earlier sections, it 
 seems that a "commercial motor vehicle" is a conveyance for the trans- 
 portation of goods, merchandise or property for purposes of trade, 
 traffic, and commercial intercourse. The addition in the statute of the 
 phrase "used solely as such" is to be taken as a qualifying clause strictly 
 limiting the classification to vehicles used only for the defined purposes. 
 This definition excludes all vehicles transporting persons whether used 
 wholly or in part for such purpose and whether gratuitously or for 
 hire, and falls clearly outside the limitations of the word "carriage" con- 
 tained in the English "Customs and Inland Revenue Act," previously 
 referred to,*° which in respect of this sort of vehicles, is as follows : 
 
 " 'Carriage' for revenue purposes * * * shall not include a 
 wagon, cart, or other such vehicle, which is constructed or 
 adapted for use, and is used solely for the conveyance of any 
 goods or burden in the course of trade or husbandry, and 
 whereon the christian name and surname and place of abode, or 
 place of business of the person, or the name or style and prin- 
 cipal or only place of business of the company or firm, keeping 
 the same, shall be visibly and legibly painted in letters of not 
 less than one inch in length." 
 
 <*Mass. St. ipog, c. 534. 
 
 Ǥ 3, Act SI and 52 Vict., c. 8, 
 
 s. 4, i888. 
 10 
 
DEFINITIONS § 14 
 
 § 14. Garage Keeper a Wheelwright, — A garage keeper is a 
 "wheelwright" as he stores and repairs wheeled vehicles.** 
 
 § 15. As to the Use of Words in General. — In dealing with new 
 words and applying old words to new subjects, it is well to have in 
 mind the caution uttered by Mr. Justice Lathrop, in Richardson v. 
 Danvers.*^ 
 
 "As was said in State v. Missouri Pacific Railway, 71 Mo. 
 App. 385, 393, 'while the terms in question are flexible and may 
 include the new uses, falling within the legitimate scope of their 
 meaning, which arise in the growth of society, we are not war- 
 ranted in giving them a new meaning so as to cover different 
 subjects not within the principles upon which they are founded. 
 To do this would bea judicial legislation.' " 
 
 *6Shelton V. Little Rock Auto Co., 103 Ark. 142, 146 S. W. 129. 
 "176 Mass. 413, 414, 57 N. E. 688. 
 
 II 
 
CHAPTER II 
 
 CONSTITUTIONAL CONSIDERATIONS 
 
 § i6. In General. 
 
 17. Federal Constitution distinguished. 
 
 18. Constitutional power of the legislature. 
 
 19. In Massachusetts. 
 
 20. Inherent or implied powers. 
 
 21. "Unconstitutional law." 
 
 22. Presumption against unconstitutionality. 
 2Z. Unconstitutionality how pleaded. 
 
 24. Who may plead unconstitutionality. 
 
 25. Raising question of constitutionality. 
 
 § 16. In General. — Motor vehicle cases involving constitutional 
 points, have in most instances raised questions concerning the legisla- 
 tive power. In this chapter, therefore, attention will be required only 
 to that department of our poUtical system, and need not extend far 
 away from certain fundamental propositions. 
 
 As distinguished from the idea of government by Divine right, in 
 the American conception of sovereignty all civil power is vested abso- 
 lutely in the people. When the administration of that power is com- 
 mitted by the people to their "government," in the absence of reserva- 
 tion or limitation, the whole power is granted and vests as absolutely 
 as it originally existed in the people. Therefore, if the instrument or 
 grant itself, commonly called a constitution, contains reservations or 
 qualifications, they constitute limitations upon the exercise of the power 
 to the extent of the reservations or qualifications. It follows from this, 
 that any exercise of governmental authority that is not restricted by the 
 terms of the instrument of creation, or not violative of the limitations 
 prescribed therein, and not an encroachment upon the powers reserved 
 to the people, is lawful, or as the expression commonly runs, "con- 
 stitutional." 
 
 Judge Cooley (Const. Lim., 7th ed., p. 3), says: 
 
 "Sovereignty as applied to states, imports the supreme, abso- 
 lute, uncontrollable power by which any state is governed. A 
 
 12 
 
CONSTITUTIONAL CONSIDERATIONS § 17 
 
 State iscalled a sovereign state when this supreme power resides 
 within itself, whether resting in a single individual, or in a num- 
 ber of individuals, or in the whole body of the people." 
 
 The same author (p. 4), thus describes a constitution : 
 
 "A constitution is sometimes defined as the fundamental law 
 of a state, containing the principles upon which the government 
 is founded, regulating the division of the sovereign powers, and 
 directing to what persons each of these powers is to be confided, 
 and the manner in which it is to be exercised. Perhaps an 
 equally complete and accurate definition would be that body of 
 rules and maxims in accordance with which the powers of sov- 
 ereignty are habitually exercised."^ 
 
 § 17. Federal Constitution distinguished. — Judge Cooley^ notes 
 the distinction between the National Constitution and those of the dif- 
 ferent states as follows : 
 
 "The government of the United States is one of enumerated 
 powers the national constitution being the instrument which 
 specifies them, and in which authority should be found for the 
 exercise of any power which the national government assumes 
 to possess. In this respect it differs from the constitutions of the 
 several states, which are not grants of powers to the states, but 
 which apportion and impose restrictions upon the powers which 
 the states inherently possess." 
 
 § 18. Constitutional power of the legislature. — In Fletcher v. 
 Peck,' Chief Justice Marshall, considering a question arising under the 
 Constitution of Georgia, says: 
 
 "To the legislature all legislative power is granted. * * * 
 It is the peculiar province of the legislature to prescribe gen- 
 eral rules for the government of society; the application of 
 those rules to individuals in society would seem to be the duty 
 of other departments. How far the power of giving the law 
 may involve every other power, in cases where the constitution 
 is silent, never has been, and perhaps never can be, definitely 
 stated." 
 
 ^Italics by the author of this book. 
 
 ^Const. I/im., 7th ed., p. 11. 
 
 =6 Cranch (U. S. S. C), 87, 136. ' 
 
 13 
 
§ l8 CONSTITUTIONAL CONSIDERATIONS 
 
 In Cooley,* the power of the legislature is thus described: 
 
 "In creating a legislative department and conferring upon 
 it the legislative power, the people must be understood to have 
 conferred the full and complete power as it rests in, and may 
 be exercised by, the sovereign power of any country, subject 
 only to such restrictions as they may have seen fit to impose, 
 and to the limitations which are contained in the Constitution 
 of the United States. The legislative department is not made 
 a special agency for the exercise of specifically defined legisla- 
 tive powers, but is intrusted with the general authority to make 
 laws at discretion." 
 
 In People v. Draper,' Chief Justice Denio says : 
 
 "The people, in framing the constitution, committed to the 
 legislature the whole law-making power of the State, which 
 they did not expressly or impliedly withhold. Plenary power 
 in the legislature for all purposes of civil government is the 
 rule. A prohibition to exercise a particular power is an ex- 
 ception."* 
 
 In the case of Field v. People,' Chief Justice Wilson, referring to 
 the Constitution of Illinois, remarks : 
 
 "The constitution is a limitation upon the powers of the 
 legislative department of the government; but it is to be re- 
 garded as a grant of powers to the other departments." 
 
 And in Mason v. Wait,' the same court says : 
 
 "A different rule obtains in interpreting the powers in the 
 Constitutions of the United States and the States. In ascer- 
 taining the powers of the former, we examine to see what 
 powers are expressly granted, or are necessarily implied for 
 their exercise. In the latter, we only examine to see what are 
 denied by the Federal and State Constitutions. And my view 
 of the law-making power of these State governments is, that 
 they can do any legislative act not prohibited by the constitu- 
 
 *Const. Lim., 7th ed., p. 126. 
 
 »IS N. Y. S32, 543. Quoted in Cooky's Const. Lim., 7th ed., p. 127. 
 
 'See also Ex parte Boyce, 27 Nev. 299, 75 Pac. i. 
 
 M 111. 79. 83. 
 
 85 111. 127, 134- 
 
 14 
 
CONSTITUTIONAI, CONSIDERATIONS § l8 
 
 tions; arid without and beyond these limitations and restric- 
 tions, they are as absolute, omnipotent, and uncontrollable as 
 Parliament." 
 
 The following, tajcen from Cooley" is a forcible expression of the 
 constitutional aspect of legislative power: 
 
 "It has never been questioned, so far as I know," says 
 Chief Justice Redfield, in Thorpe v. Rutland & B. R. Co., 27 Vt. 
 140, 142, "that the American legislatures have the same unlim- 
 ited power in regard to legislation which resides in the British 
 Parliament, except where they are restrained by written con- 
 stitutions. That must be conceded, I think, to be a funda- 
 mental principle in the political organizations of the American 
 states. We cannot well comprehend how, upon principle, it 
 should be otherwise. The people must, of course, possess all 
 legislative power originally. They have committed this in the 
 most general and unlimited manner to the several State legis- 
 latures, saving only such restrictions as are imposed by the 
 Constitution of the United States, or of the particular State 
 in question." 
 
 To the same effect is Wynehamer v. People.^" 
 
 After quoting and citing a number of cases in various states to the 
 same effect, Judge Cooley^^ says : 
 
 "Other judicial opinions in great number might be cited in 
 support of the same general doctrine." 
 
 In Harder's Storage etc. Co. v. Chicago (City)^^ ^^g ^f ^^^ questions 
 at issue was the constitutionality of an act of the legislature affecting 
 motor vehicles. The court, by Mr. Justice Hand, say : 
 
 "It must be borne in mind that the Constitution of this State 
 is a limitation upon and not a grant of power to the legisla- 
 ture, and that the legislature has the right to exercise any 
 power not prohibited by the State or Federal Constitutions. 
 * * * The supreme or sovereign power of legislation, which, 
 
 'Const. Liin., 7th ed., p. 128. Quoted in Cooky's Const. Um., 7th ed., p. 129. 
 1013 N. y. 378, 391. Quoted in Cooky's Const. Lim., 7th ed., p. 129. 
 i^Const. Lira., 7th ed., p. 129. 
 "235 111. S8, 68, 8s N. E. 255. 
 
 15 
 
§ 19 CONSTITUTIONAL CONSIDERATIONS 
 
 under our form of government resides in the people, by the 
 adoption of said section one of article four of the Constitution 
 of 1870, was vested in the General Assembly, subject only to 
 the limitations and restrictions found in other portions of the 
 organic instrument or in the Constitution of the United States." 
 
 § 19. In Massachusetts. — Upon the subject of present considera- 
 tion, the Constitution of Massachusetts is peculiarly ample. After 
 providing (Part 2d, Chap. I, Sees, i, 2, 3) that the general court should 
 possess the legislative authority usually granted in such instruments, 
 including the powers to override the executive veto and to establish 
 and maintain courts of justice, the Constitution continues: 
 
 "Section IV. And further, full power and authority are 
 hereby given and granted to the said general court, from time 
 to time to make, ordain, and establish, all manner of whole- 
 some and reasonable orders, laws, statutes, and ordinances, di- 
 rections and instructions, either with penalties or without; so 
 as the same be not repugnant or contrary to this constitution, 
 as they shall judge to be for the good and welfare of this Com- 
 monwealth and for the government and ordering thereof, and 
 of the subjects of the same." 
 
 And thereupon the same section goes on to provide specific powers 
 as follows: 
 
 (i) "For the necessary support and defence of the gov- 
 ernment"; (2) for the "naming and settling of all civil of- 
 ficers"; (3) to prescribe "the duties, powers and limits" of 
 all "civil and military officers"; (4) "to impose and levy pro- 
 portional and reasonable assessments, rates, and taxes, upon all 
 the inhabitants," residents and estates; (5) to "impose and 
 levy reasonable duties and excises" upon any produce, goods, 
 wares, merchandise, and commodities,^^ whatsoever, brought 
 into, produced, manufactured, or being within this Common- 
 wealth. 
 
 The only expressed limitations to these powers are that the exercise 
 of "the same be not repugnant or contrary to this Constitution," that 
 legislative acts 'shall be "for the good and welfare of this Common- 
 
 ^■For the scope of meaning of the word "commodities" used in this connec- 
 tion, see Portland Bank v. Apthorp, 12 Mass. 252, 256, quoted in § 79. 
 
 16 
 
CONSTITUTIONAI, CONSIDERATIONS § 19 
 
 wealth and for the government and ordering thereof," and that "as- 
 sessments, rates, and taxes" be "proportional and reawnable * * * 
 upon all the inhabitants." (See also Declaration of Rights, Consti- 
 tution, Part 1st Art. X.) 
 
 In Wellington et al. v. Petitioners," Chief Justice Shaw, speaking of 
 the question of constitutionality of legislation, says : 
 
 "The delicacy and importance of the subject may render it 
 not improper to repeat what has been so often suggested by 
 courts of justice, that when called upon to pronounce the in- 
 validity of an act of legislation passed with all the forms and 
 solemnities requisite to give it the force of law, courts will ap- 
 proach the question with great caution, examine it in every 
 possible aspect, and ponder upon it as long as deliberation and 
 patient attention can throw any new light on the subject, and 
 never declare a statute void, unless the nullity and invalidity 
 of the act are placed, in their judgment beyond reasonable 
 doubt." 
 
 In Com. V. Temple,^" Chief Justice Shaw, also said: 
 
 "All accommodations intended for the common and general 
 benefit, whatever may be their nature and character, are under 
 the control and regulation of the legislature, exercising the sov- 
 ereign power of the State either by general law or special en- 
 actment." 
 
 Adams v. Howe," was a case involving a question of taxation. 
 Chief Justice Parker, speaking for the court, says : 
 
 "The true and only question, then, arising in this case is, 
 whether the statute before cited is contrary or repugnant to 
 the principles of the Constitution, and so of no binding force 
 upon the court. And after a careful examination of the Decla- 
 ration of Rights prefixed to the Constitution, where alone the 
 subject is treated of, we do not find that the legislature is 
 restricted in the manner contended for by the counsel for the 
 defendants in error." 
 
 ^^33 Mass. i6 Pick. 87, 95. 
 i58o Mass. 14 Gray 69, 74. 
 1614 Mass. 340, 344. 
 
 17 
 
§ 20 CONSTITUTIONAI, CONSIDERATIONS 
 
 In Turner v. Nye," Mr. Justice Morton, says : 
 
 "Of necessity cases will arise where there will or may be 
 a conflict of interests in the use and disposition of property, and 
 questions may and will come up aflfecting the public welfare in 
 regard to the use which shall or shall not be permitted of cer- 
 tain property. It is for the legislature in such instances, under 
 the power thus conferred upon it, and with due regard to pri- 
 vate rights, to enact the necessary laws." 
 
 In Connecticut Insurance Co. v. Commonwealth,^' Mr. Justice Mor- 
 ton, speaking for the court, says : 
 
 "The record and the arguments of counsel present details of 
 the operation of this statute, which is claimed to work hard- 
 ships upon the insurers, but we do not discuss them, because 
 we have nothing to do with the policy or expediency of the 
 law, or with the question whether it is satisfactory to insurers 
 or insured. These are matters for legislative judgment and 
 discretion." 
 
 In Prince v. Crocker,'^' the court, by Mr. Justice Allen, say : 
 
 "As to roads of all kinds, and bridges and sewers, the doc- 
 trine is well established, in this Commonwealth and elsewhere, 
 that the legislature may prescribe what shall be done." 
 
 Many other expressions of similar character may be found in cases 
 decided in the Supreme Judicial Court. Some of them will be re- 
 ferred to in connection with topics hereafter discussed. 
 
 § 20. Inherent or implied powers. — ^The implied powers of gov- 
 ernment, conducted under a written constitution, are sometimes exceed- 
 ingly important. Particularly is this true in matters pertaining to the 
 Federal government under its peculiar constitution. In regard to the 
 states, the implied powers have much influence. Judge Cooley,^" on 
 thiis point quotes Chief Justice Wilson, in Field v. People,^^ as follows : 
 
 "154 Mass. S79, S82, 28 N. E. 1048. 
 18133 Mass. 161, 163. 
 i»i66 Mass. 347, 3S9, 44 N. E. 446. 
 zoConst. Lim., 7th ed., p. 98. 
 "4 111. 79, 83. 
 
 18 
 
CONSTITUTIONAL CONSIDERATIONS § 21 
 
 "That Other powers than those expressly granted may be, 
 and often are, conferred by implication, is too well settled to 
 be doubted. Under every constitution the doctrine of implica- 
 tion must be resorted to in order to carry out the general grants 
 of power. A constitution cannot from its very nature enter 
 into a minute specification of all the minor powers naturally 
 and obviously included in it and flowing from the great and 
 important ones which are expressly granted. It is therefore 
 established as a general rule, that when a constitution gives a 
 general power, or enjoins a duty, it also gives, by implication, 
 every particular power necessary for the exercise of the one or 
 the performance of the other. The implication under this rule, 
 however, must be a necessary, not a conjectural or argumenta- 
 tive one. And it is further modified by another rule, that 
 where the means for the exercise of a granted power are given 
 no other or different means can be implied as being more ef- 
 fectual or convenient." 
 
 It is hardly necessary to lengthen the consideration of this point by 
 resorting to judicial decisions to fortify the statement last quoted. 
 The two inherent or implied powers which principally concern our 
 inquiry are the "police power" and the power to tax. In an inves- 
 tigation involving the Federal Constitution, the subject of implied 
 powers assume a greater importance, for, as already seen, the na- 
 tional Constitution is one of enumerated powers, whereas the State 
 constitutions rest upon a different basis. 
 
 § 21. "Unconstitutional law." — No perfectly satisfactory defini- 
 tion of an "unconstitutional law" can be framed. The term is a mis- 
 nomer, for the thing is not a law at all. It is void, a nullity. Never- 
 theless, the expression has come into use and has acquired a popular 
 significance generally understood as meaning "being opposed to the 
 fundamental law."^^ 
 
 "A statute can be declared unconstitutional," says Black.^' 
 
 "Only where specific restrictions upon the power of the leg- 
 islature can be pointed out, and the case shown to come within 
 them, and not upon any general theory that the statute is un- 
 just or oppressive or impolitic, or that it conflicts with a spirit 
 
 22Cooley Const. Uta., 7th ed., p. S. See also Feasel v. State of Ohio, 6 Ohio 
 Nisi Prius, N. S. 321, 1908. 
 2'Int. of Laws, p. 93, note. 
 
 19 
 
§ 22 CONSTITUTIONAI, CONSIDERATIONS 
 
 supposed to pervade the Constitution, but not expressed in 
 words." 
 
 See remarks of Mr. Justice Elliott, to same effect, in Wadsworth v. 
 Union Pac. Ry.^* 
 
 § 22. Presumption against unconstitutionality. — "Every act of 
 the legislature is presumed to be valid and constitutional until the con- 
 trary is shown. All doubts are resolved in favor of the validity of the 
 act. If it is fairly and reasonably open to more than one construc- 
 tion, that construction will be adopted which will reconcile the statute 
 with the constitution and avoid the consequences of unconstitution- 
 ality."^' 
 
 § 23. Unconstitutionality how pleaded. — When the constitution- 
 ality of an act is to be called in question, the section of the Constitution 
 under which the unconstitutionality is claimed, must be clearly pointed 
 out." 
 
 § 24. Who may plead unconstitutionality. — Only persons whose 
 rights are affected by a so-called "unconstitutional law," may raise 
 the objection of unconstitutionality. In Cooley's Lint., 232 it is said : 
 
 "Nor will a court listen to an objection made to the con- 
 stitutionality of an act by a party whose rights it does not 
 affect, and who has therefore no interest in defeating it."^^ 
 
 § 25. Raising question of constitutionality. — "When a case in- 
 volves the punishment of the defendant for a crime, the constitution- 
 ality of the statute authorizing the prosecution may be questioned at 
 any stage of the proceedings." (See opinion by Chief Justice Knowl- 
 ton, in Com. v. Hanna.^* Thus in the case referred to, the question 
 of constitutionality does not appear to have been raised until it 
 reached the Supreme Court on appeal. 
 
 The constitutionality of one part of a statute will not be considered 
 by the court when it is not in issue and it appears that the defendant 
 was violating another portion of the statute.''* 
 
 2*18 Col. 600, 612, 33 Pac. Repr. 515. 
 
 2BBlack Int. of I/Ews, p. 93; People v. Mac Williams, 91 N. Y. App. Div. 176, 
 86 N. Y. S. 359. 
 2«State V. Cobb, 113 Mo. App. 156, 87 S. W. SSi. 
 "'See State ex rel. Crandall v. Mcintosh, 205 Mo. 589, 610. 
 28i9S Mass. 262, 264, 8i N. E. 149. 
 2»Cole Motor Car Co. v. Ludorff (Ind. 1916), iii N. E. 447. 
 
 20 
 
CHAPTER III. 
 
 THE POLICE POWER 
 
 § 26. The "police power" of the State. 
 
 27. The police power and the motor vehicle. 
 
 28. Highway Regulation — Use of number plates. 
 
 29. Legislative duty and the police power. 
 
 30. Power of the courts concerning police regulations. 
 
 31. Skill and competency of operators. 
 
 32. Driver to be "accompanied" by licensed operator. 
 
 33. Steam engineers' and firemen's licenses. 
 .^4, Personal character as a factor. 
 
 35. Examination in case of owners. 
 
 § 26. The "police power" of the State.^ — In the division of gov- 
 ernmental powers, "the most comprehensive, and therefore necessarily, 
 the vaguest," is that denominated the "police power. "^ "The term 
 police," says the author quoted (sees. 2, 3), "has never been clearly 
 circumscribed. It means at the same time a power and a function of 
 government, a system of rules, and an administrative organization and 
 force. * * * In t^g decisions of the courts we find the term police 
 coupled with internal commerce and domestic trade ; health and safety 
 measures are commonly ascribed to it ; but it is also made to include 
 the establishment of courts of justice and the punishment of offences, 
 and the general tendency is to identify it with the whole of internal 
 government and sovereignty, and to regard it as an undefined mass of 
 legislation. * * * it has been inferred from this vagueness of the 
 term police, that the idea of the police power must be equally un- 
 defined. * * * The inference is, however, unwarranted. * * * 
 From the mass of decisions * * * it is possible to evolve at least 
 two main attributes or characteristics which differentiate the police 
 power: it aims directly to secure and promote the public welfare, and 
 it does so by restraint and compulsion." An examination of the 
 statutes and decisions, "will reveal the police power not as a fixed 
 
 ^See chapter X, Interstate Travel, as affected by state police power. 
 ^Freund, Police Power, Sec. i. 
 
 21 
 
§ 26 *Hg fOLlCE POWER 
 
 quantity, but as the expression of social, economic, and political con- 
 ditions. As long as these conditions vary, the police power must 
 continue to be elastic, i. e., capable of development."* 
 In Black's Constitutional Law, p. 290, it is said : 
 
 "There is in every sovereignty an inherent and plenary power 
 to make all such laws as may be necessary and proper to 
 preserve the public security, order, health, morality, and justice. 
 This power is called the 'police power.' It is a fundamental 
 power and essential to government, and is based upon the law 
 of overruling necessity. It cannot be surrendered by the legi- 
 slature or irrevocably alienated in favor of individuals." 
 
 The Supreme Court of the United States, speaking in a case,* 
 wherein the constitutionality of a Massachusetts statute was questioned, 
 say: 
 
 "Whatsoever differences of opinion may exist as to the ex- 
 tent and boundaries of the police power, and however dif- 
 ficult it may be to render a satisfactory definition of it, there 
 seems to be no doubt that it does extend to the protection of 
 the lives, health, and property of the citizens, and to the pres- 
 ervation of good order and the public morals. The legislature 
 cannot, by any contract, divest itself of the power to provide 
 for these objects. They belong emphatically to that class of 
 objects which demand the application of the maxim, salus populi 
 suprema lex; and they are to be attained and provided for 
 by such appropriate means as the legislative discretion may 
 devise. That discretion can no more be bargained away than 
 the power itself." 
 
 In Com. V. Strauss,^ Chief Justice Knowlton, says: 
 
 "The nature of the police power and its extent, as applied to 
 conceivable cases, cannot easily be stated with exactness. It 
 includes the right to legislate in the interest of the public health 
 the public safety and the public morals. If the power is to be 
 held within the limits of the field thus defined, the words should 
 be interpreted broadly and liberally. If we are to include in 
 the definition, as many judges have done, the right to legislate 
 
 "See also Mr. Justice Harlan in Adair v. United States, 208 U. S. 161, 173, 28 
 S. C. 277, quoted § 156, chapter Interstate Travel. 
 *Beer Co. v. Massachusetts, 97 U. S. 25, 33. 
 Bjpi Mass. 545, sso, 74 N. E. 308. 
 
 22 
 
THE POLICE POWER § 2/ 
 
 for the public welfare, this term should be defined with some 
 strictness, so as not to include everything that might be enacted 
 on grounds of mere expediency. In the very late case of Loch- 
 ner v. New York, 198 U. S. 45, 53, the majority of the court said : 
 'Those powers, broadly stated and without, at present, any 
 attempt at a more specific limitation, relate to the safety, health, 
 morals and general welfare of the public' In the opinion in 
 Louisville & Nashville Railroad v. Kentucky,' we find this 
 language: 'The general rule holds good that whatever is con- 
 trary to public policy or inimical to the public interests is sub- 
 jected to the police power of the State, and within legislative 
 control, and in the exertion of such power the legislature is 
 vested with a large discretion, which, if exercised bona fide for 
 the protection of the public, is beyond the reach of judicial 
 inquiry.' " 
 
 In Radnor Township v. Bell,^ the court say : 
 
 "The police power of the state is nothing more than the 
 authority to compel all owners of property so to use it as not to 
 injure others." (Citing authority) " 'This power is inherent 
 in all forms of government and corresponds to the right of self- 
 preservation in the individual; upon it depends the security 
 of social order, the life and health of the citizens, the com- 
 fort of an existence in a thickly populated community, the en- 
 joyment of private and social life and the beneficial use of 
 property, and it has been said by eminent writers to be the 
 very foundation upon which our social system rests.' '" 
 
 § 27. The police power and the motor vehicle — generally.* — 
 On account of the dangerous character of automobiles tiie state may 
 by statute pass laws in the exercise of its police power in relation to 
 the ownership of automobiles and the running thereof.^" 
 
 The police power, in its application to motor vehicles, is exercised, in 
 general, by way of legislative regulation of the use and operation of 
 such vehicles upon the streets and highways of the Commonwealth. 
 
 «i6i U. S. 677, 701. 
 
 ^27 Pa. Super. Ct. i, 6. 
 
 sSee also Cfcary v. Johnston, 74 N. J. L. 49, 74 Atl. 538; State v. Mayo, 106 
 Me. 62; 75 Atl. 295. 
 
 *See §§ 47, 48, 270 for further consideration of this subject. 
 
 lojohnson v. Sergeant, 168 Mich. 444, 134 N. W. 468, 2 N. C. C. A. 334; 
 Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875 ; Hall v. Compton, 130 Mo. App. 675, 
 108 S. W. 1 122. 
 
 23 
 
§ 27 THE POUCE POWER 
 
 No better expression of the general doctrine can be found on this fea- 
 ture of the subject, than that of Mr. Justice Magruder, in Christy v. 
 Elliott.^^ In that case it was argued that the motor vehicle act of 
 Illinois was unconstitutional as an infringement of the fundamental 
 rights of liberty and property. In regard to this contention it is said : 
 
 "The first section of the statute is challenged as being un- 
 constitutional, upon the alleged ground that it is class legisla- 
 tion, because, as is insisted, it unjustly discriminates against 
 automobiles, and other horseless conveyances, and, therefore, 
 against manufacturers of the same. In other words, appellant 
 contends that the owners of automobiles or horseless convey- 
 ances and drivers of the same are entitled to the same rights 
 and privileges under the law, as the owner, or driver of any 
 other vehicles, and that any law which deprives them of such 
 rights, or that restricts and limits such rights, is unconstitu- 
 tional as being in conflict with section two of article two of 
 the State Constitution, which provides as follows: 'No person 
 shall be deprived of life, liberty or property without due proc- 
 ess of law. We are of the opinion that the act is not uncon- 
 stitutional for the reason thus stated. 
 
 "The passage of the act was clearly within the power of the 
 legislature, because it is a police regulation. The legislature is 
 entitled to exercise the police power whenever the public health 
 or comfort or the safety or welfare of society requires it to do 
 so. We have said: "The State inherently possesses, and the 
 general assembly may lawfully exercise, such power of re- 
 straint upon private rights as may be found to be necessary 
 and appropriate to promote the health, comfort, safety and 
 welfare of society. This power is known as the police power of 
 the State. In the exercise of this power the general assembly 
 may, by valid enactment — ^i. e., due process of law — ^prohibit 
 all things hurtful to the comfort, safety and welfare of society, 
 even though the prohibition invade the right of liberty or prop- 
 erty of an individual.' (Bailey v. People, 190 111. 28, 61 N. E. 
 98; Booth V. People, 186 id. 43, 57 N. E. 798; Ruhstrat v. Peo- 
 ple, 185 id. 133, 57 N. E. 4I-) 
 
 "The act in question was designed to secure the safety of 
 travelers upon the public highway. It is a matter of common 
 knowledge that an automobile is likely to frighten horses. It 
 is propelled by a power within itself, is of unusual shape and 
 
 11216 111. 31, 39, 74 N. E. 103s. Forbidding passenger on handlebars of motor- 
 cycle see post, § 242. The court details the history of motor vehicle legislation 
 in Illinois in Chicago v. Francis, 262 111. 231, 104 N. E. 662. 
 
 24 
 
THE POUCE POWER § 28 
 
 form, is capable of a high rate of speed, and produces a puff- 
 ing noise when in motion. All this makes such a horseless 
 vehicle a source of danger to persons traveling upon the high- 
 way in vehicles drawn by horses." 
 
 A reasonable fee may be imposed as an incident to the police power 
 of regulating the use of automobiles." 
 
 § 28. Highway regulation — Use of number plates. — There can 
 be no doubt that the regulation of travel on thoroughfares falls within 
 the scope of the police power, to be administered by the legis- 
 lature. In regard to its exercise concerning motor vehicle operation, 
 the doctrine .is equally settled in the cases. Commonwealth v. Boyd,'* 
 was a case wherein the defendant was prosecuted for operating an 
 automobile without displaying number plates, in violation of the motor 
 vehicle Act of 1903 (Chap. 473). The defendant contended that the 
 act referred to was unconstitutional. The court, by Mr. Justice Loring, 
 say: 
 
 "There can be no question of the right of the legislature in 
 the exercise of the police power to regulate the driving of auto- 
 mobiles and motor cycles on the public ways of the Common- 
 wealth. They are capable of being driven and are apt to be 
 driven at such high rate of speed, and when not properly 
 driven are so dangerous, as to make some regulation necessary 
 for the safety of other persons on the public ways. In this 
 connection, see Commonwealth v. Stodder, 2 Cush. (56 Mass.), 
 562, 570." 
 
 There is no such difference between the Act of 1903 referred to by 
 Judge Ivoring, and the motor vehicle law of 1909 (Mass. Chap. 534), 
 as would place a case arising under the present law outside the ef- 
 fect of the decision of the court concerning the former act. The 
 constitutions of the states generally, in the matter of the police power, 
 being in harmony with that of Massachusetts, the decision in Com- 
 monwealth V. Boyd, will be found to be expressive of the prevailing 
 judicial opinion throughout the country. 
 
 § 29. Legislative duty and the police power.— Possession of the 
 power carries with it the duty to exercise the same for the public 
 
 "State V. Gish, 168 Iowa 70; 150 N. W. 37. As to license fees see further 
 infra, § 104. 
 "188 Mass. 79, 74 N. E. 255. 
 
 25 
 
§ 30 THE POLICE POWER 
 
 welfare. Commonwealth v. Kingsbury/* was a prosecution wherein 
 the defendant was charged with operating an automobile on a high- 
 way from which vehicles were excluded by local regulation. Mr. Chief 
 Justice Knowlton, in writing the opinion for the Supreme Court, con- 
 siders generally the subject of the power of the legislature to control 
 motor vehicle operation on the highways and the exclusion therefrom 
 in certain cases. In part he says : 
 
 "Statutory regulation of their speed while running on the 
 highway is reasonable and proper for the promotion of the 
 safety of the public. It is the duty of the legislature, in^the 
 exercise of the police power, to consider the risks that arise 
 from the use of new inventions applying the forces of nature 
 in previously unknown ways. The general principle is too 
 familiar to need discussion. It has been applied to automobiles 
 in different states with the approval of the courts. Common- 
 wealth V. Boyd, i88 Mass. 79, 74 N. E. 255 ; Christy v. Elliott, 
 216 111. 31, 74 N. E. 1035; People V. Schneider, 139 Mich. 673, 
 103 N. W. 172 ; People v. Mc Williams, 86 N. Y. Supp. 357. 
 
 It seems too plain for discussion that, with a view to the 
 safety of the public, the legislature may pass laws regulating 
 the speed of such machines when running upon highways. 
 The same principle is applicable to a determination by the leg- 
 islature that there are some streets and ways on which such 
 machines should not be allowed at all." 
 
 § 30. Power of the courts concerning police regulation. — In 
 State V. Swagerty,^^ Mr. Justice Burgess, in sustaining the constitution- 
 ality of the automobile law of that State says, concerning the provisions 
 of the act: 
 
 "With the reasonableness or unreasonableness of the act this 
 court has nothing to do. That was for the determination of 
 the legislature, whose power as a law-making body is pre- 
 scribed and limited only by the State and Federal Constitu- 
 tions. * * * <Xhe province of the court is to interpret and 
 obey the mandates of the supreme power of the State, however 
 absurd and unreasonable they may appear.' " 
 
 Of course the foregoing expression of Judge Burgess is not to be 
 understood as meaning that the courts are not empowered to inter- 
 
 1*199 Mass. 542, 8s N. E. 848, 127 Am. St. Rep. 513. 
 "203 Mo. Si7i.S27, 102 S. W. 483. 
 
 26 
 
THE POLICE POWER § 3^^ 
 
 fere when constitutional rights are invaded. As the context shows, 
 the merits of legislation are reviewable only when they transcend the 
 "State and Federal Constitutions." 
 
 § 31. Skill and competency of operators.^' — It is both a Federal 
 and a State constitutional guarantee that no person shall be deprived 
 of life, liberty or property without due process of law. Any action, 
 therefore, on the part of a legislature which is violative of this funda- 
 mental principle, is obnoxious to the restriction imposed by the Federal 
 Constitution and that of the particular State. It is also a right en- 
 joyed by everyone, to exercise a free choice in selecting his proper occu- 
 pation and to follow the same untrammeled. This liberty is qualified 
 only by a just regard for the general welfare, in order to subserve 
 which, our laws are presumably made. As has been seen, it is the 
 police power that affords justification for enactments affecting indi- 
 vidual rights. Mr. Justice Field observes in the Slaughter House 
 Cases:" 
 
 "All sorts of restrictions and burdens are imposed under 
 it (the police power), and when these are not in conflict with 
 any constitutional prohibition, or fundamental principles, they 
 cannot be successfully assailed in a judicial tribunal. * * * 
 But under the pretense of prescribing a police regulation the 
 State cannot be permitted to encroach upon any of the just 
 rights of the citizen, which' the Constitution intended to se- 
 cure against abridgment." 
 
 It occassionally becomes a question of extreme judicial nicety where 
 the proper limits of the exercise of this power cease and the just 
 rights of the citizen become assailed. Such a case is presented when 
 the pursuit of a lawful trade or profession is made to depend upon the 
 permission of a public official or board. 
 
 In the motor vehicle acts of a number of the states, provision is 
 made which in substance accords with section 8, chapter 534 of the 
 Massachusetts Act of 1909, relating to "licenses to operate and oper- 
 ation of motor vehicles," as follows : 
 
 "Before such a license is granted the applicant shall pass 
 such examination as to his qualifications as the commission 
 
 "See § 248, Chap. XIII, Chauffeurs. 
 "16 Wall. 36, 87. 
 
 27 
 
§ 32 THE POLICE POWER 
 
 shall require, and no license shall be issued until the commis- 
 sion or its authorized agent is satisfied that the applicant is a 
 proper person to receive it." 
 
 The uniformity of legislation throughout the country with reference 
 to operators of motor vehicles, and the unanimity of sentiment on 
 the part of the courts as to the dangerous character of their calling 
 and profession both as to the occupants of the vehicle and as regards 
 the public at large, render it undoubted that this profession is such 
 an one as calls for a high degree of skill and competency, to be as- 
 certained by the public's representatives as a prerequisite to its ex- 
 ercise.^* 
 
 In State v. Swagerty,^^ the court quote Railroad v. Beckwith,^" as 
 applying to operators of motor vehicles : 
 
 " 'When the calling or profession or business is attended 
 with danger, or requires a certain degree of scientific knowl- 
 edge upon which others must reply, then legislation properly 
 steps in to impose conditions upon its exercise.' It is certainly 
 true that the business of the man who operates and propels an 
 automobile along the public streets is such a business as is above 
 alluded to.'^ 
 
 The case of chauffers is similar in the respect of special knowledge, 
 to that of some other occupations in the successful prosecution of 
 which the public is vitally interested. In many states laws exist re- 
 lating to examination of physicians, surgeons, dentists, .plumbers, 
 engine men, and the like, having for their reason the welfare of the 
 community which ought not to be imperilled by untrained or unskilful 
 persons. To what lines of occupation the principle of examination 
 can properly be carried, is a judicial question involving closest discrimi- 
 nation between the rights of the individual on the one hand, and the 
 security of society on the other. 
 
 § 32. Driver to be "accompanied" by Licensed Operator. — 
 Where a statute requires the unlicensed operator to be "accompanied" by 
 
 i8See In re Jacobs, 98 N. Y. 108, no; Emerson, etc., Co., v. Pearson, 74 N. H. 
 22, 64 Atl. S82. 
 1B203 Mo. S17, 526, 102 S. W. 483. 
 20129 U. S. 29, 9 S. Ct. 207. 
 2iSee also Radnor Township v. Bell, 27 Pa. Super. Ct. i, 6. 
 
 28 
 
THE POLICE POWER § 33 
 
 a licensed operator the word means in such proximity as to furnish 
 with reasonable promptness such advice and assistance as may be 
 necessary for the safe operation of the car. This is a question of fact 
 to be determined by the jury in each case. Some cars might require 
 closer proximity than others. The court cannot say as a matter of law 
 that because the licensed operator was on the rear seat he was not 
 accompanying the operator. The jury might find that the licensed 
 operator by standing up and leaning over the front seat might more 
 effectively manipulate the emergency brake and the steering wheel than 
 if upon the front seat.^'' 
 
 The words "riding with or accompanied by," mean proximity suf- 
 ficient to enable the licensed operator to maintain such supervision as 
 might be necessary for safety and to render assistance with reasonable 
 promptness. Where the unlicensed operator is a driver of experience 
 the proximity need not be as close as otherwise but the law contem- 
 plates knowledge on the part of both persons of the existence of a 
 relation like that of operator unlicensed and licensed operator in a 
 position to advise or assist promptly. The unlicensed operator need not 
 be under the control of the licensed chauffeur.^^* 
 
 § 33. Steam engineers' and firemen's licenses. — The profession 
 of a chauffeur is not altogether unlike that of an engineer or fireman, 
 concerning the licensing of whom there has for a long time, been statu- 
 tory provision. By Mass. Revised Laws, Chapter 102, sections 81 et. 
 seq., as amended by chapter 373 of the Acts of 1907, steam engineers 
 and firemen are required in much the same way as chauffers, to submit 
 to examination regarding competency, as a condition precedent to 
 securing licenses. Concerning the reason for such statute and for the 
 examination, Mr. Attorney General Knowlton,^' uses expressions very 
 applicable to the subject in hand. He says : 
 
 "The statute is intended for the security of the public and 
 those employed or having business in the vicinity of steam 
 boilers, by providing that those who have charge of such boil- 
 ers, shall possess the skill necessary for their safe operation. 
 The word 'operate,' as used in the statute quoted is to be 
 taken as meaning the directing or superintending of the work- 
 ing of the boiler." 
 
 22Hughes V. New Haven Taxicab Co., 87 Conn. 416, 87 Atl. 721. 
 22aBourne v. Whitman, 209 Mass. ISS, 165, 95 N. E. 404, 35 h. R. A. (N. S.) 701. 
 highway; also chapter IX on Municipal Powers. 
 23i Op. Atty. Gen'l, 485. 
 
 29 
 
§ 34 '■^HE POLICE POWER 
 
 To bring the case of the chauffeur even closer to that of the engi- 
 neer, there may be noted the meaning of 'operate' when applied to 
 automobiles. In Commonwealth v. Crowninshield/* Mr. Justice La- 
 throp says : 
 
 "We are of opinion that a person may be said to be driving 
 an automobile if he is controlling the motive power." 
 
 § 34. Personal character as a factor. — The question of personal 
 character and habits of the applicant, is also made an element enter- 
 ing into the requirements upon which the State insists. Section 8, 
 chapter 534, Act of 1909, provides that the person seeking an oper- 
 ator's license, shall satisfy the highway commission that he "is a proper 
 person to receive it", as a prerequisite to issuance. Upon this point. 
 Judge Cooley^^ significantly observes : 
 
 "Some employments in which integrity is of vital importance 
 it may be proper to treat as privileges merely, and to refuse 
 the license to follow them to any who are not reputable."^' 
 
 § 35. Examination in case of owners. — ^Views to the contrary of 
 the State's authority to require examination of owners of pleasure 
 automobiles as distinguished from employees, are sometimes expressed 
 based upon the ground that it is a limitation of the fundamental right 
 of every one to use and enjoy his property. It is difficult to follow 
 the distinction in principle, between a qualification of the liberty of 
 choosing an occupation and that of using property as a means of en- 
 joyment. There seems to be no reason why demonstration of quali- 
 fication to operate should not be insisted upon in one case as well as 
 in the other, without any undue invasion of individual right. The 
 case mentioned in the next section is usually cited as authority for the 
 contention mentioned. 
 
 The case of Chicago v. Banker,^^ turned upon the question whether 
 the city of Chicago had the power by ordinance, and in the absence of 
 statute, to require an automobile owner "to submit to an examination 
 
 2*187 Mass. 221, 72 N. E. 963. 
 
 z^Const. him., 7th ed., p. 890. 
 
 26See also Freund, Police Power, Sec. 651. 
 
 =^112 111. App. 94. 
 
 28I7S 111. 445, .51 N. E. 907. 
 
 30 
 
THE POLICE POWER § 35 
 
 and to take out a license" before he should be permitted to operate his 
 vehicle for his private and personal pleasure. The court, in declaring 
 the ordinance void, held that inasmuch as there was no statutory pro- 
 vision on the subject, the charter of the corporation "is the measure of its 
 powers, and the enumeration of those powers implies the exclusion of 
 all others." The remarks of Mr. Justice Ball, who wrote the opinion, 
 seem to indicate that it was doubtful whether even the legislature had 
 power to limit the right of a citizen to pursue such lawful avocation 
 as he may choose, by insisting that he shall submit himself to a public 
 examination and to the pleasure of a licensing board, unless such re- 
 quirement was demanded by "the public health, comfort, safety or 
 welfare." It should be noted that this case was decided largely upon 
 the doctrine of Chicago v. Collins,'" which was distinguished by the 
 same court in the case of Harder's Storage, etc., Co. v. Chicago 
 (City).^« 
 
 Attention should also be directed to the reporter's note appended to 
 the decision, to the effect that the case arose prior to the enactment 
 of the automobile law of Illinois, of 1903. The conclusion seems in- 
 evitable that the great weight of authority, both upon principle and for 
 reasons of sound public policy, leaves unquestioned the legislature's 
 authority to establish reasonable methods of ascertaining fitness for 
 managing the vehicle in both classes of operators. 
 
 29235 111- .58, 8S N. E. 24s. See § 90, 91, 92. 
 
 31 
 
CHAPTER IV. 
 
 THE POWER OF THE LEGISLATURE TO DELEGATE AUTHORITY 
 
 § 36. Power to delegate. 
 
 ZT. Delegation to park commissioners and municipalities in Massachusetts. 
 
 37a. Certiorari as remedy. 
 
 38. Rule in other jurisdictions. 
 
 39. Highway control in Massachusetts. 
 
 40. Exercise of delegated authority must be reasonable. 
 
 41. Turnpike companies. 
 
 § 36. Power to delegate.^ — "It is a general principle of constitu- 
 tional law that the power conferred upon the legislature by the con- 
 stitution to make laws cannot be delegated by that body to any other 
 person or authority, in any such manner as to preclude the resump- 
 tion of the power, or of its exercise, whenever the public interest re- 
 quires it."" The doctrine does not, however, prevent delegation of 
 authority by the legislature to city, county and town jiuthorities, public 
 bodies, commissions, and the like. The principle upon which such 
 delegation of authority generally is permitted, is the same as that stated 
 by Mr. Black,' with regard to municipal corporations : 
 
 "Municipal corporations are regarded as subordinate agen- 
 cies of government, created with a view to the more judicious 
 and effective administration of local governmental affairs. The 
 legislature has power to erect such corporations, and to invest 
 them with such powers and prerogatives as are necessary to 
 enable them to make rules for the government of their own af- 
 fairs, particularly in matters of taxation and police, provided 
 that their bylaws and ordinances shall not be inconsistent with 
 the general laws of the State. This is not to be regarded as an 
 unlawful delegation of legislative power. For the legislature 
 retains control over such corporations, to the extent that it 
 may, in its discretion, resume or recall the powers granted out." 
 
 ^See § 99, Delegation of authority to license ; also § 267 et seq., Power over the 
 highway; also chapter IX on Municipal Powers. 
 ^Black's Const. Law, p. 279. 
 sConst. Law, p. 280. 
 
 32 
 
LEGISLATIVE POWER TO DELEGATE AUTHORITY § 37 
 
 § 37. Delegation to Park Commissioners and Municipalities 
 in Massachusetts. — In Commonwealth v. Temple,* Chief Justice 
 Shaw, speaking of the authority of the legislature to exercise "the 
 sovereign power of the state," says that it may be done: 
 
 "Either by general law or special enactment. It may be done 
 by a charter or special act of incorporation. * * * or where 
 the necessity for its exercise is of frequent recurrence, it may 
 be by the delegation of power to special tribunals, or municipal 
 governments, by general laws." 
 
 Brodbine v. Revere^ was a case involving regulations of the Metro- 
 politan Park Commissioners. It was contended that the act under 
 which the regulations weie made was unconstitutional as a delegation 
 of legislative power. Chief Justice Knowlton, in writing the opinion, 
 observes : 
 
 "It is well established in this Commonwealth and elsewhere, 
 that the legislature cannot delegate the general power to make 
 laws, conferred upon it by a constitution like that of Massa- 
 chusetts." 
 
 The Chief Justice then proceeds to state the limits within which 
 authority may be delegated, thus: (i) The legislature may commit 
 to cities and towns the power to make local police regulations and 
 ordinances affecting peculiarly the interests of their own inhabitants, 
 commonly called local self-government, involving municipal legislation 
 affecting the health, safety and convenience of its people; (2) "Ap- 
 parently on grounds of expediency amounting almost to necessity," 
 it has often delegated the making of rules and regulations for the 
 preservation of the public health, to boards of health; (3) It has en- 
 trusted to boards of police and to police commissioners authority to 
 make police rules and regulations ; (4) It has authorized harbor com- 
 missioners, land commissioners and railroad commissioners to make 
 penal "rules and regulations." Continuing the Chief Justice says : 
 
 "There is also strong ground for the contention that the 
 quoted language of the statute simply leaves to the board the 
 administration of details which the legislature cannot well 
 
 *8o Mass. 69, 74, 14 Gray. 
 «i82 Mass. 598, 66 N. E. 607. 
 
 33 
 
§ 37 I<EGISI,ATIVE POWER TO DELEGATE AUTHORITY 
 
 determine for itself, and which it may therefore leave to the 
 determination of a subordinate tribunal, and that the substance 
 of the legislation is found in that part of the statute which 
 prescribes punishment for disregard of the regulations so de- 
 termined. For a kindred exercise of legislative power, see 
 Kingman, petitioner, 153 Mass. 566, 576, 27 N. E. 778. This 
 principle is analogous to that which marks a distinction between 
 matters that are substantive and those that are incidental and 
 subsidiary. * * * We are of opinion that the authority given to 
 the board of metropolitan park commissioners to make rules 
 and regulations in regard to parks and wa;ys, with a provision 
 that breaches of these rules shall be punishable like breaches of 
 the peace, is not a delegation of legislative power which is un- 
 constitutional." 
 
 In Commonwealth v. Crowninshield,^ wherein a regulation of a park 
 commission, involving automobile operation, was questioned as being 
 unconstitutional, Mr. Justice Lathrop says. 
 
 "No question has been raised as to the power of the legisla- 
 ture to authorize the board of park commissioners to make the 
 rule relied upon, and it is evident that such contention, if made, 
 could not prevail. Brodbine v. Revere, 182 Mass. 598, 602, 66 
 N. E. 607." 
 
 In Commonwealth v. Tyler,^ the Supreme Judicial Court held that 
 the legislature had conferred the power upon the park commissioners 
 to make rules and regulations governing motor vehicle speeds and 
 operation upon the boulevards and parkways, and that there had been 
 no subsequent enactment which divested them of their power, and 
 hence their regulations were of binding effect. 
 
 Commonwealth v. Kingsbury* was a prosecution charging the de- 
 fendant with operating an automobile upon a highway from which 
 automobiles had been excluded "by vote of the selectmen of the town 
 of Ashfield," acting under chapter 203, Mass. Act of 1903, which corre- 
 sponds with sections 15 and 17, chapter 534, Act of 1909. Mr. Chief 
 Justice Knowlton says, in upholding the power of the legislature to 
 
 6187 Mass. 221, 22s, 72 N. E. 963- As to delegation of authority to license see 
 further, infra, § 99 notes. 
 ^199 Mass. 490, 85 N. E. 569. 
 8199 Mass. 542, 546. 
 
 34 
 
LEGISLATIVE POWER TO DELEGATE AUTHORITY § 37A 
 
 "prescribe that automobiles shall not pass over certain streets" in any- 
 particular locality: 
 
 "It is contended that this power cannot be delegated to a 
 board of aldermen or selectmen, or to the Massachusetts high- 
 way commission. The question involved in this contention was 
 fully considered and was decided in Brodbine v. Revere, 182 
 Mass. 598. It also arose in Commonwealth v. Crowninshield, 
 187 Mass. 221, 1905, 66 N. E. 607. It was decided in favor of 
 the Commonwealth's contention in Nelson v. State Board of 
 Health, 186 Mass. 330, 71 N. E. 313, and was discussed and 
 similarly decided in Commonwealth v. Sisson, 189 Mass. 247, 
 75 N. E. 619. In Commonwealth v. Stodder, 56 Mass. 563, and 
 in Commonwealth v. Mulhall, 162 Mass. 496, 39 N. E. 183, the 
 prohibition was by an ordinance passed by a local board. These 
 cases make further discussion unnecessary." 
 
 § 37A. Certiorari as Remedy. When a motorist is dissatisfied 
 with the determination of the licensing authority, it is usual for him to 
 attempt to secure in the courts a review of the proceedings and different 
 determination of the matter. The effort commonly takes the form of 
 an application for a writ of certiorari, and hence is appropriate for 
 consideration. 
 
 A careful search of the reports of decided cases, fails to disclose 
 any instance wherein the State Highway Commission has been 
 brought into court for a review of its proceedings. There is, however, 
 the unreported case of Sullivan v. Parker, et al., "as the Highway 
 Commission," No. 11053 Law, filed Sept. 8th, 1908, which was an 
 automobile case wherein the petitioner applied to the Supreme Judicial 
 Court for a writ of certiorari, the purpose being to secure a review 
 of the proceedings of the Highway Commission in revoking petitioner's 
 certificates of registration and license to operate automobiles. The 
 application was heard by Mr. Justice Hammond and the writ was 
 denied, no memorandum being filed. The petitioner's brief asserts 
 that certiorari is the appropriate remedy, citing Mendon v. Worcester, 
 2 Allen 463, wherein it was held by the Supreme Court, in an opinion 
 written by Chief Justice Bigelow, that when county commissioners do : 
 
 "not proceed according to the course of the common law, and 
 there is no mode provided by law for correcting the alleged 
 error by means of an appeal, exceptions or otherwise, a writ of 
 certiorari is the appropriate remedy to bring their proceedings 
 before us." 
 
 35 
 
§ 38 LEGISLATIVE POWER TO DELEGATE AUTHORITY 
 
 The Attorney General, in behalf of the Highway Commission, raised 
 no objection to petitioner's contention as to the form of the remedy 
 and the case went off apparetly on another point. 
 
 § 38. Rules in other jurisdictions. — In respect of the principles 
 stated in the decisions quoted, the doctrine in Massachusetts is that of 
 the country generally. In Radnor Township v. Bell,* the court held 
 that: 
 
 "The State legislature has, beyond question, the power to pro- 
 vide for the construction and maintenance of the public high- 
 ways, whether streets in cities and boroughs, or roads in town- 
 ships, and it has as full and clear power to provide regulations 
 for their use. It must also be conceded that this power may be 
 delegated without diminution to a local municipality, by which 
 the State imparts to its creature the municipality, the powers 
 necessary to the performance of its functions and to the pro- 
 tection of its citizens in their persons and property. Sayre 
 Borough V. Phillips, 148 Pa. 482, 24 Atl. 76." 
 
 In Harder's Storage, etc., Co. v. Chicago (City)),^" the Supreme 
 Court, by Mr. Justice Hand, say : 
 
 "It has repeatedly been held that the control of the public 
 streets is vested in the legislature, and that such power of con- 
 trol may be delegated, by the legislature to the municipalities 
 of the State." 
 
 A case sometimes cited as authority for the expression of views dif- 
 fering from those presented in the preceding sections, is that of Peo- 
 ple V. Kipley,^^ wherein the defendant was prosecuted for running 
 an automobile on a Chicago boulevard in violation of a rule of the 
 park commissioners, excluding automobiles from parks and boulevards. 
 Mr. Justice Gibbon, in deciding the case, held, that while the park com- 
 missioners had "almost plenary power over parks," they had no au- 
 thority to exclude vehicles which did not endanger public safety. He 
 also held that the commissioners had no power to prohibit automobiles 
 by name any more than any other vehicle from using any boulevard, 
 particularly, when there is but one boulevard. In this opinion the 
 
 »27 Pa. Super. Ct. i, 4. 
 10235 111. S8, 77, SS N. E. 245. 
 "18 Nat. Corp. Repr. (III.) 874. 
 
 36 " , 
 
IvEGIStATlVlJ POWER TO DELEGATE AUTHORITY § 39 
 
 justice dwells upon the general statutes from which the park com- 
 missioners derive their power, showing that the legislature had con- 
 ferred no such authority upon them. In considering this opinion, it 
 should be borne in mind that the case arose prior to the time the motor 
 vehicle had become common on the highway and before any legisla- 
 tion concerning it had been enacted.^^ 
 
 § 39. Highway control in Massachusetts.^' — By the Act of 1909, 
 chapter 534, supervision of the highways and power to regulate the 
 use thereof by motor vehicles, is committed to the Massachusetts high- 
 way commission. By other statutes similar control is given to the 
 metropolitan park commission and other park officials over the park- 
 ways in their respective jurisdictions. In each instance the authority 
 exercised is that delegated by the legislature acting within its power 
 to delegate — ^not substantive legislative jurisdiction, but subordinate 
 functions covering details of management which may be altered, 
 amended or withdrawn at the will of the paramount authority. Upon 
 the principles of law presented in the preceding sections, the delegated 
 authority exercised by the officials mentioned, is unassailable upon 
 constitutional grounds.^* 
 
 § 40. Exercise of delegated authority must be reasonable. — In all 
 cases where powers are conferred, the exercise thereof must be within 
 the power committed, the action must be reasonable in itself and be a 
 reasonable exercise of the delegated authority.^^ 
 
 Commonwealth v. Crowninshield^" was a motor vehicle case wherein 
 the defendant was charged with overspeeding his automobile in viola- 
 tion of a rule of the park commissioners of the city of Boston. The 
 court, by Mr. Justice Lathrop, says : 
 
 "The general question which arises where a by-law or ordi- 
 nance of a city, or a rule of a board of park commissioners is 
 concerned is whether it is authorized by a statute and whether 
 it is reasonable. See Commonwealth v. Stodder, 2 Cush. (56 
 
 i2§ 267-274, Chapter XIX, on Legislative Control over Highway. 
 
 1' See chapter IX on Municipal Powers, for control of streets within the limits 
 of cities and towns. 
 
 i*Coni. V. Crowninshield, 187 Mass. 221, 224, 72 N. E. 963 ; Com. v. Tyler 199 
 Mass. 490, 1908; Com. v. Kingsbury, 199 Mass. 542, 546, 85 N. E. 848. 
 
 i^See also on this point the cases cited in preceding sections of this chapter. 
 
 18187 Mass. 221, 224, 72 N. E. 963. 
 
 37 
 
§ 41 LEGISLATIVE POWER TO DELEGATE AUTHORITY 
 
 Mass.), 562, 570. The rule in question was authorized by stat- 
 ute and was reasonable. 
 
 "No question has been raised as to the power of the legisla- 
 ture to authorize the board of park commissioners to make the 
 rule relied upon, and it is evident that such contention, if made, 
 could not prevail. Brodbine v. Revere, 182 Mass. wS, 602, 66 
 N. E. 607."" 
 
 § 41. Turnpike companies.— The right of the legislature to dele- 
 gate to commissioners and officials authority to regulate the use of 
 vehicles on the highway, is akin to the principle by which toll roads 
 are established and turnpike companies empowered to collect toll from 
 persons traveling in vehicles thereon.^* Such companies derive their 
 authority from the legislature, and in its exercise, have an undoubted 
 right to prevent such use of the turnpike under their control as will 
 make it dangerous to the general public.^' Their powers, however, 
 must be strictly construed, because they are in derogation of general 
 public rights. Such powers as are not specified must be presumed to 
 have been reserved. Authority beyond that which is necessary for the 
 proper conduct of their turnpike, is not to be implied." For example, 
 in the case last referred to, the turnpike company demanded toll on 
 an automobile. The owner of the car refused to pay the toll and the 
 court held that automobiles not having been specified in the act con- 
 ferring the franchise, the right to collect toll from such a vehicle could 
 not be presumed, and the fact that automobiles were not known at 
 the time when the franchise was granted could make no difference. 
 
 A turnpike company cannot prohibit the passage of automobiles 
 where its roads are public highways and where it is bound to allow 
 passage of any sulky, chaise or "any-other carriage of burden or pleas- 
 
 iTCotn. V. Tyler, 199 Mass. 490, 85 N. E. 569; Com. v. Kingsbury, 199 Mass. 
 542, 546, 8s N. E. 848. 
 
 isCity of Terre Haute v. Kersey, IS9 Ind. 300, 302, 64 N. E. 469- 
 
 i»Bertels v. Laurel Run Turnpike Co., 31 Pa. Co. Ct. Reps. 129. 
 
 zoBogue V. Bennett, 156 Ind. 478, 60 N. E. i43 ; Bertels v. Laurel Run Turn- 
 pike Co., 31 Pa. Co. Ct. Reps. 129 ; Mallory v. Saratoga L. Bridge Co., 104 N. Y. 
 Supp. I02S- 
 
 2iScranton v. Laurel Run Turnpike Co., 225 Pa. St. 82, 73 Atl. 1063. See 
 Bertels v. Laurel Run Turnpike Co., 31 Pa. Co Ct. 129, 31 Pa. Dist. Ct. Rep. 94. 
 
 38 
 
CHAPTER V 
 
 "CLASS LEGISLATION" 
 
 § 43. Special legislation. 
 
 43. Special or "class'' legislation. 
 
 44. The rule applied to motorists. 
 
 45. "Class legislation" regarding motor vehicles. 
 
 46. Nature of motor vehicle laws. 
 
 47. Identification and restraint. 
 
 48. Display of number plates is not void as an unreasonable search of tes- 
 
 tifying against one's self. 
 
 49. Where number plates not furnished. 
 
 so. Requiring operator to disclose identity after accident. 
 
 51. Venue where accident happened. 
 
 52. Registration laws must be uniform. 
 
 53. Speed limitations. 
 
 54- Illegal speed prima facie proof of negligence. 
 
 § 42. Special legislation.^ — "Special legislation" consists in the 
 passing of statutes which are private, local, or special in their character 
 or effect. A "private law," is "one which operates only upon particu- 
 lar persons or private concerns." A law is "local" which "is limited 
 in its operation to certain districts." A "special law" is one "limited 
 in the objects to which it applies." A constitutional prohibition is 
 needed to withdraw from the legislature the power to enact such laws. 
 "Where there is no constitutional restriction against the passage of 
 private or local laws, they are within the legislative competency and the 
 courts cannot hold them unconstitutional."^ 
 
 § 43. Special or "class" legislation.^ — ^Legislation of the character 
 referred to is commonly called "class legislation," and in some states 
 there is constitutional prohibition against the exercise of the power 
 by the legislature. More technically it is called "unequal or partial 
 legislation," and under this title. Judge Cooley' discusses the subject. 
 
 ^Black's Const. Law, 275, 276. 
 
 2For class legislation in the matter of taxation, see Taxation, § 67, "Class 
 taxation"; also §§ 104-118. 
 *Const. Lim., 7th ed., p. 554. 
 
 39 
 
§ 43 "a:<Ass li;gisi,ation" 
 
 By reference to the footnote on the page last referred to, it will be ob- 
 served that even where there is constitutional prohibition of legislation 
 of this character, such inhibition does not prevent legislation concern- 
 ibg matters which affect particular classes in the community. Judge 
 Cooley says : 
 
 "These discriminations are made constantly, and the fact that 
 the laws are of local or special operation only, is not supposed 
 to render these obnoxious in principle. The legislature may also 
 deem it desirable to prescribe peculiar rules for the several 
 occupations, and to establish distinctions in the rights, obliga- 
 tions, duties, and capacities of citizens. * * * if the laws be 
 otherwise objectionable, all that can be required in these cases 
 is, that they be general in their application to the class or lo- 
 cality to which they apply; and they are then public in char- 
 acter, and of their propriety and policy the legislature must 
 judge. But a statute would not be constitutional which should 
 proscribe a class or a party for opinion's sake, or which should 
 select particular individuals from a class or locality, and subject 
 them to peculiar rules, or impose upon them special obli^^ations 
 or burdens from which others in the same locality or class are 
 exempt." 
 
 In illustration of the principles spoken of, is cited the business of 
 common carriers, which needs special statutory regulations for the 
 general benefit, and also special statutes which give laborers in one 
 business a specific lien for their wages, when it might be impolitic to 
 do the same for persons engaged in some other employments. Many 
 other illustrations might be given involving trades and professions. 
 In every case such legislation proceeds upon the principle that where- 
 ever the public welfare is involved, the police power as exercised by 
 the legislature, should be exerted to conserve it. It would be imprac- 
 ticable as well as absurd to require that every statute should apply uni- 
 formly to every person in the jurisdiction. What is expected is that 
 the enactment shall relate to an appropriate class in the community and 
 shall apply equally to every one found within the particular class. 
 
 Commonwealth v. Danziger* was a case wherein the constitutionality 
 
 *i;6 Mass. 290, 57 N. E. 461- 
 
 40 
 
"CI,ASS i,egisi<ation" § 44 
 
 of a statute was called in question. Mr. Justice Morton, who wrote 
 the opinion of the Supreme Court, says : 
 
 "The offense was created by statute. * * * The statute was 
 enacted under and by virtue of what is termed the police power, 
 that is, the power to make and establish all manner of whole- 
 some and reasonable laws and statutes for the good and welfare 
 of the Commonwealth. It is not necessary that statutes passed 
 in the exercise of that power should apply equally and uniformly 
 to all citizens of the Commonwealth in order to be constitutional. 
 It is sufficient if they apply equally and uniformly to all who are 
 similarly circumstanced and are not otherwise objectionable. 
 Such statutes have been upheld as constitutional in numerous 
 instances. Goddard, petitioner, i6 Pick. 504; Watertown v. 
 Mayo, 109 Mass. 315, 318, and cases cited; Commonwealth v. 
 Roberts, 155 Mass. 281, 29 N. E. 522 ; Commonwealth v. Parks, 
 155 Mass. 531, 30 N. E. 174; Opinion of the Justices, 163 Mass. 
 589; Cole V. Tucker, 164 Mass. 486, 41 N. E. 681 ; Newton y. 
 Joyce, 166 Mass. 83, 44 N. E. 116; Commonwealth v. Morris, 
 "176 Mass. 19, 56 N. E. 896." 
 
 In Squire v. Tellier" the case turned upon the validity of a statute 
 directed to a particular class in the community. The defendant con- 
 tended that the statute was unconstitutional. The court, by Chief Jus- 
 tice Knowlton, say : 
 
 "The statute is not objectionable as applying only to a par- 
 ticular class. It applies to all who come within the reason for 
 its enactment: Commonwealth v. Danziger, 176 Mass. 290, 57 
 N. E. 461, and cases cited : Rideout v. Knox, 148 Mass. 368, 19 
 N. E. 390."° 
 
 § 44. The rule applied to motorists. — In State v. Swagerty^ a 
 motor vehicle case, Mr. Justice Burgess says : 
 
 "There can be no question but that an act which relates to 
 persons or things as a class is a general law, while an act which 
 refers to particular persons or things of a class is a special law. 
 It is well settled, however, in this State that, when the condi- 
 
 "185 Mass. 18, 21. 
 
 'To the same effect see Sawyer v. Dooley, 21 Nev. 390, 32 Pac. Repr. 437, and 
 Giozza V. Tiernan, 148 U. S. 657, 662, 13 S. Ct. 721, quoted in chapter X on Inter- 
 state Travel, section 194, post. 
 
 '203 Mo. 517, 523. 
 
 41 
 
§ 45 
 
 CLASS LEGISLATION 
 
 tions reasonably justify the distinguishing of a class, and the 
 law affects equally all who come within that class, such law is 
 not within the constitutional inhibition." 
 
 In Feasel v. State of Ohio* the Court of Common Pleas had before it 
 a case wherein the Ohio motor vehicle law of 1906,^ was held to be un- 
 constitutional. Mr. Justice Rathmell, after quoting the act, says : 
 
 "It will be observed that while this section prohibits the use 
 or operation of motor vehicles except in compliance in all respects 
 with this section, nothing is required by the section. And there- 
 fore, there is no prohibition of the use of such vehicles when un- 
 licensed. Thus, of the class, the owners of motor vehicles, one 
 may be required to obtain a license and another not so required. 
 And we have an imposition of restrictions and burdens upon 
 certain citizens, from which others of the same class are exempt, 
 and the operation of the statute is not uniform, beings in viola- 
 tion * * * of (.jjg Constitution." 
 
 § 45. "Class legislation" regarding motor vehicles. — It is some- 
 times argued that motor vehicle legislation is "class legislation" and 
 therefore not constitutional. The argument proceeds upon the basis 
 that such legislation unjustly discriminates against motor vehicles and 
 consequently bears injuriously upon the manufacture, ownership and 
 enjoyment of this class of property, as distinguished from other classes 
 of property, such as the horse drawn vehicle and street cars. The ob- 
 jection has been raised in many jurisdictions and has been uniformly 
 overruled upon grounds of public safety and welfare, the duty of 
 guarding which, as has been seen, is lodged with the legislature in the 
 exercise of the police power. It can hardly be claimed at this time, 
 that motorists are not sufficiently numerous to form a class. Upon the 
 principle noted in the decisions therefore, there is nothing constitu- 
 tionally offensive in such legislation so long as it does not discriminate 
 between members of the same class. In the few cases wherein such 
 statutes have been annulled, it has been for inherent defects not involv- 
 ing the main principle. As an illustration, see Feasel v. State of Ohio, 
 quoted in the preceding section. 
 
 86 Ohio Nisi Prius, N. S. 321, 324- 
 
 ^The Ohio Motor Vehicle Law of 1906 was declared unconstitutional by the 
 State's Attorney-General, for reasons similar to those given by Judge Rathmel. 
 
 42 
 
"ci<ASs i<e;gisi,ation" § 46 
 
 Concerning the alleged discrimination between automobiles and street 
 cars, it was urged in Chittenden v. Columbus (City)" that the city 
 ordinance was unreasonable, because the speed permitted to street cars 
 was greater than that allowed for automobiles. Mr. Justice Dustin, 
 speaking for the court, held that the municipal authorities are the better 
 judges of rates of speed in their own localities and that the rate fixed 
 in this case was not so unreasonable as to demand invalidation by the 
 court. Concerning the alleged discrimination as to the speed of street 
 cars, the court held that it was proper, because they are confined to 
 tracks and can easily be avoided, "whereas automobiles have no certain 
 course and are much more dangerous to pedestrians." 
 
 § 46. Nature of motor vehicle laws. — Presiding Judge Frazer, in 
 the course of an opinion in a criminal proceeding, says of the Pennsyl- 
 vania general automobile law of 1905, that it is "throughout a regulat- 
 ing statute."^^ 
 
 § 47. Identification and restraint. — As has appeared in some of the 
 cases elsewhere quoted, one of the principle purposes of motor vehicle 
 legislation is identification of the vehicle and of the operator in case of 
 accident, and another is that the knowledge that means of detection are 
 always available, may act as a deterrent from lax observance of the law 
 and of the rules of conservative and safe operation. Whatever purpose 
 of revenue there may be in these statutes, is subordinate at the last to 
 the primary purpose of rendering it certain that the violator of the law 
 or of the rules of safety, shall not escape because of lack of means to 
 discover him.'^^' 
 
 In People v. Schneider^' the defendant having been convicted of 
 operating an automobile without registering it, and failing to display 
 a registration number, contended that there was no authority to require 
 him to do so. Mr. Justice Carpenter, in considering the reasonability 
 of the requirement, says : 
 
 "It is not difficult to see that the registration and numering 
 of automobiles is intimately connected with their safe operation 
 in the streets. In a city like Detroit many automobiles are pre- 
 
 "26 Ohio C. C. S3 1. 
 
 i^Walker v. Commonwealth, 40 Pa. Super. 638, 1909. 
 
 i^King V. Brenham Automobile Co., Tex. Civ. App. 145 S. W. 278, quoting text ; 
 Stroud V. Hartford (Conn. 1916), 97 Atl. 336. 
 18139 Mich. 673, 676, 103 N. W. 172. 
 
 43 
 
§ 47 "civAss legislation" 
 
 cisely alike in external appearance. They are sometimes oper- 
 ated by persons whose faces are partially concealed and whose 
 identity is uncertain. Those operators who are most reckless 
 and indifferent — and those are the ones who endanger the safety 
 of others— may violate this ordinance with impunity unless some 
 method is adopted by which they or their automobiles may be 
 identified. The provision in the ordinance for registration and 
 numbering is such a method. It is reasonable to believe that 
 when he knows that the number displayed at the rear identifies 
 his automobile, fear of discovery and punishment will lead the 
 automobile's driver to observe the requirements of the ordinance. 
 Indeed, we cannot say that the common council did not decide — 
 and did not jusly decide — that the provision for identification 
 by registering and numbering was necessary to prevent injury 
 to pedestrians and other travelers from the careless management 
 of automobiles." 
 
 In Unwen v. State^* Mr. Justice Reed, speaking of the constitution- 
 ality of the New Jersey motor vehicle law, held that for the purpose of 
 protecting users of the road against the dangers of high speed, and to 
 enable the public to identify violaters of the law, the legislature required 
 registration with the secretary of state, and the license fee of one 
 dollar paid. This fee he held not to be a tax upon property nor upon 
 occupation, but merely a license. 
 
 In People v. MacWilliams^^ sustaining the constitutionality of the 
 automobile law (1903) of New York, Mr. Justice Laughlin says; 
 
 "The legislature deemed that the best method of identification, 
 both as to the vehicle and the owner or operator, would be by a 
 number on a tag conspicuously attached to the vehicle. In case 
 of any violation of law this affords means of identification, for, 
 from the number, the name of the owner may be readily ascer- 
 tained and through him the operator."" 
 
 Ex parte Berry" was a proceeding wherein the court "assume ju- 
 dicial knowledge of an automobile and its characteristics, and the con- 
 sequences of its use." The opinion considers the noise and speed of an 
 automobile and its tendency to frighten animals. Mr. Justice McFar- 
 
 "73 N. J. Law, 529. 64 Atl. 163. 
 1B91 N. Y. App. Div. 176, 179- 
 
 16T0 the same effect are Unwen v. State, 73 N. J. Law, 529, 64 Atl. 163, and 
 Cora. V. Templeton, 22 Mont. Co. Reps. 203 (Pa.). 
 "147 Cal. 523, 82 Pac. 44. 
 
 44 
 
CLASS legislation" § 48 
 
 land says, "Beyond doubt it is highly dangerous when used on country 
 roads, putting to great hazard the safety and lives of the mass of the 
 people who travel on such roads in vehicles drawn by horses." Atten- 
 tion is called to the difficulty experienced by officers in stopping such 
 vehicles, particularly in the night time, in all of which particulars the 
 court declare that the ordinance is a reasonable one for conserving the 
 welfare of the people.^' 
 
 Concerning lights provided for in the English statute, I^ord Alver- 
 stone, C. J., remarks that the rear light is very important as affording 
 means of identification.^' 
 
 § 48. Display of Number Plates is not void as an Unreasonable 
 Search or Testifying against one's self-^^-r-Another class of objections 
 raised to the constitutionality of legislation in motor vehicle cases, is 
 that the carrying of number plates on the machine and the requirement 
 that the operator shall produce his license upon official demand, is vio- 
 lative of constitutional guarantees in the particulai^s noted in the cap- 
 tion. In People v. Schneider^^ defendant was convicted of operating 
 an automobile without registering the machine or displaying number 
 plates as required by the city ordinance. He contended that the ordi- 
 nance violated the State Constitution which forbade "unreasonable 
 searches," and also the section of the same instrument which the court 
 quotes : 
 
 " 'No person shall be compelled, in any criminal case, to be 
 a witness against himself, nor be deprived of life, liberty, or 
 property without due process of law.' 
 
 "We deem it sufficient to say that the provision requiring one 
 operating an automobile on the street to display thereon a num- 
 ber furnished by the municipality is not an unreasonable search. 
 * * * We think it equally clear that the ordinance does not com- 
 pel an automobile owner or operator to testify against himself, 
 or deprive him of any property rights. It is merely a justifiable 
 exercise of the police power in the interest of the safety of the 
 traveling public." 
 
 "See also Commonwealth v. Pfeiffer, 35 Pa. Co. Ct. Reps. 476; Weirich v. 
 State, 140 Wis. 98, 126 N. W. 652 ; People v. Hayes, 66 N. Y. Misc. Reps. 606. 
 
 i»Provincial Motor Cab v. Dunning, 2 L. R. K. B. 599. 
 
 =»See further, ante § 28. 
 
 "139 Mich. 673, 679, 103 N. W. 172, 69 L. R. A. 345, s Ann. Cas. 790; see 
 People V. Rosenheimer, 209 N. Y. 115, 102 N. E. S30, 46 L. R. A. (N. S.) 977, 
 Ann. Cas. 1915, A. 161, quoting above case with approval. 
 
 45 
 
§ 49 "CI<ASS LEGISIvATION" 
 
 § 49. Where Number Plates not Furnished."^ — Under the Iowa 
 statute requiring the secretary of state to issue number plates on proper 
 application the defendant is not guilty of driving without the proper 
 plates where the secretary of state failed to furnish them. The legisla- 
 ture cannot prohibit the use of motor vehicles on the highways. This 
 statute is a regulation of their use and not an attempted prohibition. 
 Here the owner is not himself in default and he must be found so be- 
 fore he can be constitutionally precluded from the use of his vehicle.^' 
 
 § 50. Requiring Operator to Disclose Identity after Accident." 
 — Provisions requiring the operator after an accident to divulge his 
 name and address are common in recent legislation and have been at- 
 tacked as violating the constitutional guarantees against self-incrimina- 
 tion but have been universally sustained as a police regulation.^^ 
 
 Such requirement is sustained on the theory that the driver exercises 
 a privilege and not a right, to which the legislature may annex condi- 
 tions.^^ 
 
 One important case recently decided is that of People v. Rosen- 
 heimer^' in which the court sustains the constitutionality of the New 
 York statute requiring the operator after the accident to divulge his 
 name and address and to report it to the nearest police station if no 
 officer is found at the place of the accident. It was claimed that this 
 was forcing the defendant to incriminate himself. The court remarks 
 that the validity of laws requiring the display of identifying numbers 
 on motor vehicles has never been questioned. 
 
 The court upholds the validity of the law on the ground that the 
 legislature might prohibit altogether the use of motor vehicles upon the 
 highways. The motor vehicle on account of its weight and speed and 
 the fatalities caused may be ruled off the road. Its operation is a 
 privilege and not a right. 
 
 The court points out that the statute does not require the operator 
 to appear and be examined as a witness in a criminal prosecution and 
 that there is a long distance between criminal culpability and civil 
 
 22As to use of number plates, see further, ante § 28, post § 169. 
 23 State V. Gish, Iowa, 168 Iowa 70, 150 N. W. 37. 
 2*See further, ante §§ 28, 48. 
 
 25Ex parte Kneedler, 243 Mo. 632, 147 S. W. 983, 40 L. R. A. (N. S.) 623 
 See 4 N. C. C. A. 26, note, 
 "epeople v. Diller, 24 Cal. App. 799, 142 Pac. 797. 
 2^209 N. Y. IIS, 102 N. E. 530, reversing 128 N Y. S. 1093. 
 
 46 
 
"class legislation" § so 
 
 culpability and that he need not report the circumstances of the accident. 
 
 The court notes that the primary object of the statute is to subject 
 the operator to civil liability, not to convict him of a crime. 
 
 Such a clause is not void as forcing the driver to incriminate himself. 
 The mere fact that the driver discloses his identity is evidence of in- 
 nocence not of guilt. In most accident cases there is no criminal re- 
 sponsibility. The mere fact that such information might lead to a 
 charge of crime is not important. The court does not decide whether 
 in this particular case the constitutional privilege justified a refusal to 
 give the information.^* 
 
 Where a statute makes it a crime to "knowingly go away without 
 stopping and making himself known" after causing the injury this im- 
 poses on the driver a positive duty to disclose his identity to those in- 
 jured if possible or if not to some one in their interest or to some public 
 officer or other person at or near the time and place of the injury. But 
 where the automobilist sends another hack to the place of the accident 
 with instructions to disclose his identity who however fails to do so the 
 automobilist cannot be said to have "knowingly" gone away without 
 making himself known. ^° 
 
 After an accident has happened the Rhode Island statute makes it 
 imperative thiat the motorist shall stop or return. The Rhode Island 
 Supreme Court on this point, say in State v. Smith i^" 
 
 "The important duty is to return to the scene, * * * not out 
 of motives of humanity for the purpose of rendering first aid 
 to the injured, but to give information if desired." * * * The 
 legislative intention seems to be that the driver shall either get 
 out and go back or that he shall at once return with his machine 
 to the place of collision. In whichever way the driver should 
 attempt to obey the law, it is hardly likely that fault would be 
 found with the manner of his obedience. * * * jf^ upon his 
 return, no one demands the particulars covered by the statute of 
 him, he would not be "obliged to volunteer such information. 
 It is only after demand that the statute requires him to make 
 answer." 
 
 28Ex parte Kneedler, 243 Mo. App. 632, 147 S. W. 983, 40 L. R. A. N. S. 622, 
 Ann. Cas. 1913, c. 923. 
 29Comm. V. Horsfall, 213 Mass. 232, 100 N. E. 362, Ann. Cas. 1914, A. 682. 
 3028 R. I. 513. 
 
 47 
 
§51 
 
 CLASS LEGISLATION 
 
 §51. Venue where Accident Happened.— A statute providing that 
 actions for automobile accidents may be brought in the county where 
 the injured person resides is not void although in other cases actions 
 must be brought where the defendant resides.^^ 
 
 Such legislation is upheld on the ground that the people who own, 
 use or operate automobiles may very properly be classed together and 
 made subject to legislation which though distinctive, is appropriate to 
 them provided the legislation applies to all within the class and affects 
 them all alike.'^ 
 
 § 52. Registration Laws must be Uniform.^'— Laws requiring 
 registration should apply to all motor vehicles and otherwise are void'* 
 as where manufacturers and dealers are excluded.'^ But there is no 
 objection to exempting vehicles held in stock for sale.'^ 
 
 The purpose and object of legislation enacted under the police au- 
 thority, should usually be taken into consideration in determining ques- 
 tions of unconstitutionality relating thereto. An illustration of the 
 principle occurs in the case of People v. MacWilliams." In that case 
 the automobile law of New York (1903), was under consideration, and 
 its constitutionality questioned. It expressly excepted from its opera- 
 tion "a person manufacturing or dealing in automobiles or motor ve- 
 hicles, except those for his own private use, and except those hired 
 out." The basis of the contention was that the section quoted dis- 
 criminated between persons of the same class, to wit: the owner and 
 the manufacturer, and was, therefore violative of the fourteenth amend- 
 ment of the Federal Constitution. The court held that the purpose and 
 object of the legislature was manifest. Mr. Justice Laughlin, who 
 wrote the opinion, says : 
 
 "The legislature appreciated the danger to pedestrians and 
 to people lawfully using the highway with vehicles drawn by 
 animals from automobiles and motor vehicles. * * * It was 
 
 'lAlIen V. Smith, 84 Ohio 283, 95 N. E. 829; contra Hoblit v. Gorman, 8 Ohio 
 Nisi Prius, N. S. 270. 
 
 32Garrett v. Werner, 235 Pa. 383, 84 Atl. 354. 
 
 83 As to registration laws, see further, § 83 et seq. 
 
 8*Feasel v. Ohio, 6 Ohio Nisi Prius, N. S. 321. 
 
 sBPeople V. MacWilliams, 91 N. Y. App. Div. 176, 86 N. Y. Suppl. 357, semble. 
 
 sePeople v. MacWilliams, 91 N. Y. App. Div. 176, 86 N. Y. Suppl. 357; Coram. 
 V. Densmore, 29 Pa. Co. Ct. 217, i L. R. A. N. S. 218. 
 
 8791 N. Y. App. Div. 176, 86 N. Y. Suppl. 357. 
 
 48 
 
"class legislation" § S3 
 
 essential to the safety of the traveling public that the speed 
 of such vehicles should be regulated and limited. It is neces- 
 sary that the vehicle may be readily identified to deter the 
 operator from violating the law and the rights of others, and 
 to enforce the laws regulating the speed and to hold the oper- 
 ator responsible in cases of accident. The legislature deemed 
 that the best method of identification, both as to the vehicle 
 and the owner or operator, would be by a number on a tag 
 conspicuously attached to the vehicle. * * * It was evidently 
 deemed unnecessary to require the registration of such vehicles 
 as were held in stock for sale or for repair or on storage in 
 automobile barns and stables. * * * jf ^^Jie manufacturer or 
 dealer wishes to take a vehicle which he has in stock for sale 
 or for repair or on storage out upon the public streets and 
 operate it by its own power, he may secure that right by regis- 
 tering it as provided. * * * If he operates an automobile or 
 motor vehicle upon the streets for the purpose of exhibiting for 
 sale this would, strictly speaking, be operating it. * * * These 
 sections are susceptible of this construction, and since if they 
 should be construed as permitting a manufacturer or dealer to 
 operate the vehicles of this class which he holds in stock, upon 
 the highways without a numbered tag, their constitutionality 
 might well be doubted."^' 
 
 While considering it in much the same light as Judge Laughlin, Pre- 
 siding Judge Walling says : 
 
 "Who would contend that an act or ordinance for the licensing 
 of hacks was void because it did not apply to hacks kept in stock 
 for sale and not for private use or for hire ? The time to license 
 such vehicle is when it is sold or put to its intended use." 
 
 § 53- Speed Limitations.*' — Special speed rules applicable to motor 
 vehicles only have been universally upheld as being a proper exercise of 
 the police power applying equally to all members of the class affected.*" 
 
 The Minnesota Act of 1909 fixing a maximum speed of twenty-five 
 
 s^To the same effect is Commonwealth v. Densmore, 29 Pa. Co. Ct. Reps. 217, 
 1904 where the same point was made. See also Emerson, etc., Co. v. Pearson, 
 74 N. H. 22, 64 Atl. 582; State v. Thurston, 28 R. I. 265. 
 
 '°As to speed limitations, see further, Chapter XIX. 
 
 ^oComm. V. Kingsbury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. S13; 
 State V. Swagerty, 203 Mo. 517, 102 S. W. 483 ; Comm. v. Templeton, 22 Mont. 
 Co. (Pa.) Rep. 203. 
 
 49 
 
§ 54 "class legislation" 
 
 miles an hour and a maximum speed of eight miles an hour in crossing 
 an intersecting highway is constitutional.*^ 
 
 A statute prohibiting an automobile from passing a vehicle at more 
 than four miles an hour is not unconstitutional as class legislation.*" 
 
 § 54. Illegal Speed Prima Facie Proof of Negligence.*' — Provid- 
 ing that proof that an automobile was driven at an illegal speed is 
 prima facie evidence of negligence is not special or class legislation.** 
 
 *i^State V. Waterman, 112 Minn. 157, 127 N. W. 473. 
 
 *2Schaar v. Conforth, 128 Minn. 460, 151 N. W. 275, 8 N. C. C. A. 1079. 
 
 *'See further infra, § 1079. 
 
 **Hartje v. Moxley, 235 111. 164, 85 N. E. 216. 
 
 SO 
 
CHAPTER VI 
 
 TAXATION 
 
 I. TAXATION OF MOTOR VEHICLES IN GENERAL 
 
 § 55. Scope of Chapter. 
 
 56. Definitions. 
 
 57. "Fee defined." 
 
 58. "Tax." 
 
 59. Taxes "direct" and "indirect." 
 
 60. "Ad valorem" and "specific taxes." 
 
 61. Hack Line Defined. 
 
 62. Revenue powers of the legislature. 
 
 63. Under the Federal Constitution. 
 
 64. Taxes must be for public purposes. 
 
 65. Taxes must not be arbitrary. 
 
 66. Uniformity in taxation. 
 
 67. "Class taxation." 
 
 68. Exemption of Companies from Taxes and Licenses includes Motor Fee. 
 
 69. Fee not Void as Double Taxation. 
 
 70. Claim for return of excess Fees. 
 
 § 55. Scope of Chapter. — In presenting the subject of taxation, 
 the view point will be confined in so far as possible, to the principles of 
 law applying to taxation for use and occupation as distinguished from 
 taxation upon property as such. In the latter aspect motor vehicles are 
 personal property like any other goods, and are subject to taxation as a 
 part of the estate of the owner under the taxing laws of the locality in 
 which he is assessed, and upon the same basis as his other property.^ 
 
 § 56. Definitions. — "Revenue" is a generic word of extended mean- 
 ing. It is defined in the Century Dictionary as follows : 
 
 "The annual income of a state, derived from the taxation, cus- 
 toms, excise, or other sources, and appropriated to the payment 
 of the national expenses." 
 
 In United States v. Norton,^ Mr. Justice Swayne speaks of the word 
 as follows: 
 
 "The lexical definition of the term revenue is very compre- 
 hensive. It is thus given by Webster : 'The income of a nation, 
 
 ^Concerning the power of the state to exact revenue from persons within its 
 jurisdiction who are residents of other states, see Chapter X on Interstate Travel, 
 sees. 193, 194. On the subject of motor vehicle taxation and license see also 
 Municipal Powers, § 172 et seq. 
 
 291 U. S. 566, 568. 
 
 SI 
 
§ 57 TAXATION 
 
 ^trived from its taxes, duties, or other sources, for the payment 
 - of the national expenses.' " 
 
 § 57. "Fee defined."— The word "fee" has a variety of meanings, 
 dependent upon the sense in which it is used. The legal significance in 
 this connection, is defined by Chancellor Edwards, in Commonwealth 
 V. Bailey,^ as follows : 
 
 _ "Fees are the rewards or compensation to be paid by indi- 
 viduals to public officers for their own or for the use of the 
 public for official service rendered." 
 
 § 58. "Tax." — A tax distinguished from all other forms of revenue, 
 is described in the Century Dictionary as : 
 
 "An enforced proportional contribution levied on persons, 
 property, or income, either (a) by the authority of the State for 
 the support of the government, and for all its public or govern- 
 mental needs, or (b) by local authority for general municipal 
 purposes." 
 
 In the City of New London v. Miller,* Chief Justice Andrews, dis- 
 tinguishing between an assessment and a tax, defines the word "taxes" 
 as follows : 
 
 "Taxes are the regular, uniform and equal contributions which 
 all citizens are required to make for the support of the govern- 
 ment."" 
 
 § 59. Taxes "direct" and "indirect." — "Taxes may be either direct 
 or indirect." Direct taxes "include those assessed upon the property, 
 person, business, income, etc., of those who are to pay them; while 
 indirect taxes are levied upon commodities before they reach the con- 
 sumer." A license tax is not a direct tax upon property, but falls within 
 the limitation of an indirect tax.'' 
 
 § 60. "Ad valorem" and "specific" taxes. — ^Taxes appear under 
 two other names, that is to say, as "ad valorem" and as "specific" taxes. 
 Literally "ad valorem" means according to value, concerning which Mr. 
 Henry Campbell Black, in his Dictionary of Law, says : 
 
 "The term ad valorem tax is as well defined and fixed as any 
 other used in political economy or legislation, and simply means 
 
 83 Ky. L. Reps, no, 114. 
 
 *6o Conn. 112, 116, 22 Atl. 499, distinguishing an "excise" from a "tax." 
 
 "See also Oliver'v. Washington Mills, 93 Mass. 268, 272, quoted Sec. 80. 
 
 •Cooley on Taxation, 3d ed., p. 10. 
 
 ^Rohr v. Gray, 80 Md. 274, 276, 30 Atl. 632 ; Cooley on Taxation, 3d ed., p. 12. 
 
 52 
 
IN GENESAI^ § 6l 
 
 a tax or duty upon the value of the article or thing subject to 
 taxation." 
 
 Concerning specific taxes Judge Cooley* says : 
 
 "Under this head may be classed those which impose a specific 
 sum, by the head or number, or by some standard of weight or 
 measurement, and which require no assessment beyond a listing 
 and classification of the subjects to be taxed. License taxes and 
 other taxes on business or occupation, stamp taxes, taxes on 
 franchises, and privileges, are usually specific, as are also other 
 excise and customs taxes." 
 
 § 6i. Hack Line Defined. — A defendant is not subject to a license 
 fee as maintaining a hack line simply because his hacks regularly meet 
 the railroad trains and transport passengers wherever they want to go. 
 The court remarks, "The question is whether this business constitutes 
 the operation of a hack line within the meaning of the statute." It 
 seems to us that it does not. "The statute is not aimed at the operation 
 of hacks, stages or automobiles within a municipality. To go to the 
 depot in search of customers is no more operating a hack line than to 
 go to a regular hack stand and there wait customers. * * * 
 '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 different points, or between different cities, and 
 do not include hacks, stages or automobiles which merely operate from 
 point to point in one city, for the transportation of the public. We 
 have been cited to no authority upholding the contention of the Com- 
 monwealth in this case."' 
 
 § 62. Revenue powers of the legislature." — Mr. Black states the 
 constitutional powers of the legislature, in matters of taxation, as 
 follows : 
 
 "The power of taxation is an essential and inherent attribute 
 of sovereignty and belongs as a matter of right to every inde- 
 
 sQn Taxation, 3d ed., p. 412. 
 
 sCom. V. Walton, 31 Ky. L. Reps. 916, 104 S. W. 323, see ante § 8. 
 
 "•See also Cooley Const. Law, 3d Ed., p. 56, etc. ; Cooley on Taxation, 3d Ed., 
 p. 9; Cooley on Const. Lim., 7th Ed., p. 678; Bennett v. Boggs, i Baldw. (U. S.), 
 60, 74; Terre Haute v. Kersey, 159 Ind. 300, 1902; Kersey v. Terre Haute, 161 
 Ind. 471, 1903; Harder's Storage, etc. Co. v. Chicago (City), 23s 111. 58, 85 N. E. 
 24s; Ayres v. City of Chicago, 239 111. 237, 87 N. E. 1073. 
 
 53 
 
§ $3 TAXATION 
 
 pendent state or government, and it is as extensive as the range 
 of subjects over which the povsrer of that government extends. 
 Taxes are ratable burdens or charges imposed by the legislative 
 power upon persons or property to raise money for public pur- 
 poses. * * * In respect to the kind of tax which shall be 
 laid, and also in regard to the objects which shall be placed under 
 its burdens, the legislature, as the representative of the sovereign 
 people, must exercise its judgment and discretion, having in view 
 the needs and conditions of the country. But the power to tax 
 is of the broadest extent. 'It is a power of unlimited force and 
 most searching extent. It embraces every person and every ob- 
 ject of property within the confines of the nation. It extends to 
 every trade, profession and employment. It covers eyery estate, 
 interest and evidence of debt.' * * * The people of a state 
 therefore give to their government a right of taxing themselves 
 and their property, and as the exegencies of the government 
 cannot be limited, they prescribe no limits to the exercise of this 
 right, resting confidently on the interest of the legislator, and on 
 the influence of the constituents over their representative, to 
 guard them against its abuse." 
 
 § 63. Under the Federal Constitution. — The fourteenth amend- 
 ment to the Federal Constitution was not intended "to subvert the sys- 
 tems of the states pertaining to general or special taxation."^^ 
 
 § 64. Taxes must be for public purposes. — ^"One invariable limita- 
 tion upon the power of taxation is that it must always be exercised for 
 the benefit of the public. * * * Whether or not a particular pur- 
 pose of taxation is a 'public' purpose, is a question which must be de- 
 termined, in the first instance, by the legislature. But its determination 
 is not conclusive. And if the courts can see that the purpose of the tax 
 is plainly and indubitably a private purpose, they will not allow its col- 
 lection."^^ Among the purposes "unquestionably 'public' in every proper 
 sense of the term" the author last quoted (p. 340), mentions "the con- 
 struction, repair, and improvement of public roads including highways, 
 
 iiConstitutional Law, p. 327- 
 
 "Giozza V. Tiernan, 148 U. S. 657, 13 S. Ct. 721 ; Cass Farm Co. v. Detroit, 181 
 U. S. 396, 21 S. Ct. 644; Kersey v. City of Terre Haute, 161 Ind. 471, 68 N. E. 
 1027; Com. V. Hawkins, 14 Pa. Dist. Ct. Reps. 592, 594, I90S; Unwen v. State, 
 73 N. J. Law, 529, 64 Atl. 163. 
 
 "Black, Const. Law, p. 336. 
 
 54 
 
IN GENERAI, § 65 
 
 turnpikes, and paved streets in cities.** Lowell v. City of Boston/^ was 
 a case involving a question of taxation, Mr. Justice Wells, says : 
 
 "The power of the government, thus constituted to affect the 
 individual in his private rights of property, whether by exacting 
 contributions to the general means, or by sequestration of specific 
 property, is confined, by obvious implication as well as by express 
 terms, to purposes and objects alone which the government was 
 established to promote, to wit, public uses and the public service. 
 * * * So far as it concerns the question what constitutes 
 public use or service that will justify the exercise of these sover- 
 eign powers over private rights of property, which is the main 
 question now to be solved, this identity renders it unnecessary to 
 distinguish between the two forms of exercise, as the same tests 
 must apply to and control in each." 
 
 § 65. Taxes muist not be arbitrary. — While it is conceded that in 
 all matters pertaining to the raising of revenue "the legislative discre- 
 tion is conclusive, and it belongs to no other branch of the government 
 to question it or set it aside"** still : 
 
 "It is not consonant with the constitutional idea of a tax that 
 it should be exacted from individuals in an arbitrary or dis- 
 criminating manner. The idea of taxation implies equality of 
 burdens, and a regular distribution of the expenses of govern- 
 ment among those persons, or those classes, of property, which 
 are rightly subject to the burden of them."*' 
 
 In Sutton V. Louisville (City),*^ Chief Justice Robertson says : 
 
 "The State Constitution contains no express restriction on 
 the taxing power. But, nevertheless, this power cannot be, in 
 all respects, arbitrary and unlimited." 
 
 f 66. Uniformity in taxation. — ^While "uniformity" is the maxim, 
 as a standard it is never fully attained in matters of taxation. Judge 
 Cooley*' says of it : 
 
 "There is no imperative requirement that taxation shall be 
 equal. If there were, the operations of government must come 
 
 "See also Cooley on Taxation, 3d ed., p. 182. 
 
 *'ii Mass. 454, 462. 
 
 **Black's Const. Law, p. 343. 
 
 I'Black's Const. Law, p. 328. 
 
 " 5 Dana (Ky.), 23, 31. 
 
 *»0n Taxation, 3d ed., p. 254. 
 
 55 
 
§ 67 TAXATION 
 
 to a stop, from the absolute impossibility of fulfilling it. The 
 most casual attention to the nature and operation of taxes will 
 put this beyond question. No single tax can be apportioned so 
 as to be exactly just, and any combination of taxes is likely in 
 individual cases to increase instead of diminish the inequality. 
 Theoretically tax laws should be framed with a view to appor- 
 tioning the burden of government so that each person enjoying 
 government protection shall be required to contribute so much 
 as is his reasonable proportion, and no more." 
 
 "This rule," says Black'"' : 
 
 "Is intended as a guide and standard for the action of the 
 legislature, but cannot be made a test of the validity of a tax law 
 in the courts, unless in cases of very gross and palpable violation 
 of its injunctions." 
 
 As a practical matter the utmost that can be expected is that the bur- 
 den shall be reasonable and fairly proportioned among the people. 
 
 In White v. Gove" there was involved the constitutionality of a statute 
 with reference to sewer assessment. Mr. Justice Knowlton says : 
 
 "Questions in regard to the constitutionality of laws relating 
 to taxes have frequently arisen in this Commonwealth and the 
 test has always been whether the tax was proportional and rea- 
 sonable. 
 
 § 67. "Class taxation." — Imposts cannot in the nature of things 
 affect all kinds of property, rights, and privileges, exactly in the same 
 way and to the same extent.^^ 
 
 " 'Uniformity' in taxation means that all taxable articles, or 
 kinds of property, of the same class, shall be taxed at the same 
 rate." It does not mean that property, occupation, and privi- 
 leges "shall be assessed at the same rate. * * * Different 
 articles may be taxed at different amounts, provided the rate is 
 uniform on the same class everywhere, with all people, and at 
 all times. Hence this constitutional requirement does not pre- 
 vent the legislature from arranging the different subjects of 
 taxation in distinct classes and making discriminations in the 
 rate of tax imposed upon the several classes, if it, be done in 
 
 zoConst. Law, p. 343- 
 
 21183 Mass. 333, 33S, 67 N. E. 359- 
 
 22See Chap. V, class legislation under the police power. 
 
 S6 
 
NATURE § 68 
 
 pursuance of a fair and reasonable system. * * * And when 
 a principle of classification is thus adopted, the interference of 
 the judicial department will not be justified, unless the classifi- 
 cation adopted should be based upon an invidious and unreason- 
 able distinction or difference with reference to similar kinds of 
 property, or unless there should be discovered a lack of uni- 
 formity within the hmits of the same class."^* 
 
 § 68. Exemption of companies from taxes and licenses includes 
 motor fee. — ^A law imposing a gross earnings tax on certain companies 
 and exempting them from paying all other taxes and licenses, exempts 
 them from paying a fee on their motor vehicles.^* 
 
 § 69. Fee not void as double taxation. — A license fee on motor 
 vehicles is not a tax and therefore cannot be double taxation. ^^ 
 
 § 70. Claim for return of excess fees. — A claim for return of excess 
 fees is not one founded on contract.^" 
 
 II. NATURE 
 
 § 71. "Occupation Tax,'' "Excise," and "License." 
 
 72. "Occupation Tax." 
 
 ^Z. Purposes of an occupation tax (or "license"). 
 
 74. Occupation tax for regulation. 
 
 75. Occupation tax for revenue. 
 
 76. Vehicular occupation tax (license). 
 
 77. Occupation tax in Massachusetts. 
 
 78. "Excise" defined. 
 
 79. "Commodities" defined. 
 
 80. "Licenses." 
 
 81. Licenses, in general. 
 
 82. A license defined. 
 
 83. "Registration" is a license of the machine. 
 
 84. License must be personal. 
 
 85. Registration by dealers. 
 
 ■ 86. Registration in proper name. 
 
 87. Registration under trade or business name. 
 
 88. "A license is not a tax." 
 
 89. Not a tax when proceeds must be used on the roads. 
 
 23 Black's Const. Law, p. 344. 
 
 2*Pacific Gas & Electric Co. v. Roberts, 168 Cal. 420, 143 Pac. 700. 
 26Union v. State; 73 N. J. L. 529, 75 N. J. L. 500, 64 Atl. 163, 68 Atl. no. 
 28Fifth Ave. Coach Co. v. State, 131 N. Y. S. 62, holding such a claim to be 
 within the jurisdiction of the court of claims. 
 
 57 
 
§ 71 TAXATION 
 
 § 71. "Occupation tax," "Excise" and "License."— All three of 
 these forms of revenue fall within the classification of indirect taxes. It 
 is impossible to separate the subjects represented by the expressions 
 mentioned in the caption, so as to bring them independently to the 
 reader's attention. In the decisions the words are often indifferently 
 employed in substitution for each other, frequently being used as com- 
 pletely synonymous. At best the distinctions between them cannot be 
 clearly defined, and the underlying principles are much the same. In 
 the succeeding sections the effort will be made to treat them with as 
 much independence of each other as the nature of the several subjects 
 will permit. 
 
 § 72. "Occupation tax." — "It has been seen that the sovereignty 
 may, in discretion of its legislature, levy a tax on every species of prop- 
 erty within its jurisdiction, or, on the other hand, that it may select any 
 particular species of property and tax that only, if in the opinion of the 
 legislature that course will be wise. And what is true of property is 
 true of privileges and occupations also ; the State may tax all, or it may 
 select for taxation certain classes and leave the others untaxed. Con- 
 siderations of general policy determine what the selection shall be in 
 such cases, and there is no restriction on the power of choice unless one 
 is imposed by the Constitution.""' 
 
 "When employments are expressly permitted to be taxed as priv- 
 ileges, the burden is usually restricted to those which in some particular 
 are exceptional, either * * * because they require special regu- 
 lations * * * or because they supply a general demand." 
 
 "When the tax takes the form of a tax on the privilege of 
 following an employment, convenience in collection will com- 
 monly dictate the requirement of a license, and the person taxed 
 will be compelled to pay the tax as a condition to the rightto 
 carry on the business at all. In such case the business carried 
 on without a license will be illegal."^* 
 
 § 73. Purposes of an occupation tax (or "license"). =» — "License 
 fees," says Judge Cooley,'" "may be imposed (i) For regulation. (2) 
 
 2'Cooley on Taxation, 3d ed. p. 1094. 
 
 ssCooley on Taxation, 3d ed., pp. 1906, 1097. 
 
 sspor further consideration of the subject of License see also § 104 et seq. 
 
 «»0n Taxation, 3d ed., pp. 1133, 1139. 
 
 58 
 
NATURB § 74 
 
 For revenue. (3) Togivemonoplies. (4) For prohibition." With the 
 two first of these purposes alone does our subject have to deal. 
 
 "■The terms" upon which a license is granted "will be expected to 
 indicate with sufficient precision whether the grant is conferred for the 
 purposes of revenue, or whether, on the other hand, it is given for 
 regulation merely. It is perhaps impossible to lay down any rule for the 
 construction of such grants that shall be general and at the same time 
 safe ; but as all delegated powers to tax are to be closely scanned and 
 strictly construed, it would seem that when a power to license is given, 
 the intendment must be that regulation is the object, unless there is 
 something in the language of the grant, or in the circumstances under 
 which it is made, indicating with sufficient certainty that the raising of 
 revenue by means thereof was contemplated." In State v. Foster ,^^ the 
 defendant was convicted of selling merchandise as an "itinerant ven- 
 dor" without first obtaining a license therefor as provided by the law of 
 that State. He contended that the statute requiring a license for that 
 purpose was unconstitutional. The Supreme Court, by Mr. Justice 
 Tillinghast, consider the whole subject of license, and say: 
 
 "That the general assembly as representing the sovereign 
 power of the state, has the right to impose reasonable condi- 
 tions upon the right to carry on business or to follow any given 
 trade, profession, or calling is beyond question. And one of the 
 most common of the conditions which is imposed under this 
 power is that of the payment of a license fee or license tax for 
 the privilege of carrying on the particular business or engaging 
 in the particular trade or calling. If the imposition of such 
 a condition has for its primary object the regulation of the busi- 
 ness, trade, or calling to which it applies, its exercise is properly 
 referable to the police power; but if the main object is the ob- 
 taining of revenue, it is properly referable to the taxing power. 
 When, therefore, the purpose is evident in any particular in- 
 stance, there can be no difficulty in classifying the case and re- 
 ferring it to the proper power."'^ 
 
 § 74. Occupation tax for regulation.^' — The fees for licenses that 
 are purely for the purpose of regulation "where no element of personal 
 
 "23 R. 1. 163, 170, 46 Atl. 833. 
 32See also Ellis v. Frazier, 38 Or. 462, 63 Pac. 642. 
 
 ''See § 31 et seq., Police power, right to examine for license, and § 47, "Iden- 
 tification and restraint." 
 
 59 
 
§ 75 TAXATION 
 
 discrimination enters * * •*, and the license is issued as a matter 
 of course upon performance of the prescribed steps," are usually suf- 
 ficient only to cover the necessary administrative expenses. "If the 
 regulations involve considerations of personal qualification," then other 
 considerations come into play.^* 
 
 In Unwen v. State^° the automobile law of that state is referred to 
 requiring the registration of every machine and the payment of a fee of 
 one dollar. Mr. Justice Reed, who wrote the opinion, says : 
 
 "It is obvious that the fee mentioned is imposed as a license fee 
 and not an impost on either property or occupation * * * . 
 It is entirely settled that under the police power a license fee 
 can be imposed within the limits of the expense necessarily or 
 probably incurred in issuing the license and of inspecting and 
 regulating the business the license covers. * * * The con- 
 clusion that this imposition is a license fee to be paid for the priv- 
 ilege of having a machine run upon a highway is not a tax, 
 seems to dispose of all the constitutional objections resting upon 
 assumed double or special taxation." 
 
 § 75. Occupation tax for revenue.^"— On this subject Mr. Freurld^' 
 says: 
 
 "Often, however, the license bears no relation to regulation 
 or supervision, and is imposed as a source of revenue, being in 
 reality a tax called license or occupation tax. For the purpose 
 of determining whether certain constitutional provisions regard- 
 ing taxation are applicable, or whether a municipal corporation 
 under its charter may impose license fees, it becomes in many 
 cases important to distinguish the license as a police measure 
 from the license as a revenue measure. That a revenue is pro- 
 ■ duced above the expenses of supervision, and that this result 
 was contemplated, or even that it is called a license tax, does 
 not make it necessarily a tax if in reality its primary purpose is 
 to restrain and control a dangerous business. The revenue may 
 be a means of meeting governmental charges created or increased 
 by the business which is placed under license. On the other 
 hand, it has been held that there may be a tax, although the pay- 
 
 s^Freund Police Power, sec. 36 ; Com. v. Boyd, 188 Mass. 79, 74 N. E. 255. See 
 § 83, where the case is quoted. 
 *=73 N. J. Law, 529, 64 Atl. 163. 
 sepor doctrine in Massachusetts see § 77. 
 s'Police Power, sec. 37. 
 
 60 
 
NATURE § 76 
 
 ment is a condition precedent to the right to carry on a business, 
 whereas this feature is normally characteristic of a police li- 
 cense." 
 
 The mere fact that the license fee is productive of incidental revenue 
 does not make it a tax.^* 
 
 An amendment to an auto license law which imposes license fees all 
 out of proportion to the cost of issuing them and exempts automobiles 
 from taxation is a taxation law.*' 
 
 § ^6. Vehicular occupation tax (license). — ^The principle upon 
 which a license for profit is imposed on vehicles, is stated by Mr. 
 Freund," as follows : 
 
 "The validity of such requirement is generally accepted, and 
 it may be justified on the ground that these occupations subject 
 the street to special wear and tear.** 
 
 § ']'j. Occupation tax in Massachusetts.*^ — ^The name under which 
 this form of taxation appears in discussions of the topic in this State, 
 is as an "excise tax." The subject has been considered by the Supreme 
 Judicial Court in a number of cases. In "The Opinion of the Justices," 
 to the General Court, *' it is said : 
 
 "The power to levy excise taxes has been much restricted by 
 our Constitution." 
 
 And in "The Opinion of the Justices" to the Senate,** it is said : 
 
 "The excise taxes authorized by the constitution must be 
 reasonable, but need not be proportional. This method of tax- 
 ation has been applied to most corporations in this Common- 
 wealth, and the constitutionality of the legislation has been es- 
 tablished." 
 
 I'Cleary v. Johnston, 79 N. J. L. 49, 74 Atl. 538. 
 
 ssUnion v. Michigan, 179 Mich. 1^7, 146 N. W. 338, 38 Ann. Cas. 128, citing 
 text, § 105. 
 *"Police Power, sec. 173. 
 *iSee § 89. 
 
 *2S'ee § 71, Excise; § 79, "Commodity," and § 80, "License." 
 *3i96 Mass. 603, 622, 8s N. E. 545- 
 **I9S Mass. 607, 610, 84 N, E. 499. 
 
 61 
 
§ 7^ TAXATION 
 
 The reasoning upon which the argument of the justices proceeds, in 
 both the opinions cited, is fully stated by Chief Justice Bigelow, in 
 OUver V. Washington Mills, " and has been followed in a long line of 
 cases. This case is quoted,*' and the law of the subject as it exists in 
 Massachusetts and in most of the other states is stated in the succeeding 
 sections. 
 
 § 78. "Excise" defined."— The Standard Dictionary defines an ex- 
 cise to be : 
 
 "A charge levied upon commodities of domestic production; 
 an internal revenue tax." 
 
 In Oliver v. Washington Mills,*' Chief Justice Bigelow, considering 
 the character of an "excise," says : 
 
 "The words 'tax' and 'excise,' although often used as synony- 
 mous, are to be considered as having entirely distinct and sepa- 
 rate significations under the constitution of Massachusetts, c. i, 
 sec. I, art. I. The former is a charge apportioned either among 
 the whole people of the State, or those residing within certain 
 districts, municipalities or sections. * * * An excise, on 
 the other hand, is of a different character. It is based on no rule 
 of apportionment or equality whatever. It is a fixed, absolute 
 and direct charge laid on merchandise, products or commodities, 
 without any regard to the amount of property belonging to 
 those on whom it may fall, or to any supposed relation between 
 money expended for a public object and a special benefit oc- 
 casioned to those by whom the charge is to be paid." 
 
 § 79. "Commodities" defined. — All standard lexicographers are in 
 substantial agreement concerning the meaning of the word "com- 
 modity." Beside according it the popular significance of an article of 
 merchandise, Webster gives to it the meaning of "convenience ; accomo- 
 dation, profit, benefit, advantage, interest, commodiousness. That which 
 affords convenience, advantage or profit." The word has acquired un- 
 usual prominence in Massachusetts from the sense in which it is used in 
 the State constitution.*" 
 
 *^g3 Mass. 268. 
 
 *Ǥ 78. 
 
 «See § 71, Occupation tax, and § 80, Licenses. 
 
 *893 Mass. 268, 272. 
 
 *9See Mass. Const., Part 2, Chap. I, § 4. 
 
 62 
 
NATURE § 80 
 
 In Portland Bank v. Apthorp,"" Chief Justice Parker discusses the 
 meaning of the two words "excise" and "commodity" as follows : 
 
 "The term excise is of very general signification, meaning 
 tribute, custom, tax, tollage, or assessment. It is limited, in our 
 constitution as to its operation, to produce, goods, wares, mer- 
 chandise, and commodities. This last word will perhaps em- 
 brace everything, which may be a subject of taxation, and has 
 been applied by our legislature from the earliest practice under 
 the constitution, to the privilege of using particular branches of 
 business or employment, as the business of an auctioneer, of an 
 attorney, of a tavern-keeper, of a retailer of spirituous liquors, 
 etc. 
 
 It must have been under this general term, commodity, which 
 signifies convenience, privilege, profit, and gains, as well as goods 
 and wares, which are only its vulgar signification, that the legis- 
 lature assumed the right which has been uniformly and without 
 complaint, exercised for thirty years, of exacting a sum of money 
 from attorneys and barristers at law, vendue masters, tavern- 
 keepers, and retailers. For every man has a natural right to 
 exercise either of these employments free of tribute, as much as 
 a husbandman or mechanic has to use his peculiar calling. The 
 money required of them is not a proportional tax ; nor is it an 
 excise or duty upon produce, goods, wares or merchandise. It is 
 a commodity, convenience, or privilege, which the legislature has 
 by contemporaneous construction of the constitution, assumed a 
 right to sell at a reasonable price, and, by parity of reason, it may 
 impose the same conditions upon every other employment or 
 handicraft."'^ 
 
 § 80. "Licenses." — From what has already appeared, the similarity 
 in use of the expressions "occupation tax" and "excise" is apparent, and 
 this similarity between them and the word "license" is found to become 
 almost an identity of employment when they are considered in connec- 
 tion with the last mentioned and more popular word. 
 
 § 81. Licenses, in general. — "Beside the general power of taxation, 
 the State has power to impose burdens in the nature of taxation, upon 
 special occupations or special kinds of property, with a view rather to 
 
 ""iz Mass. 252, 256. 
 
 BiS'ee also "The Opinion of the Justices," 196 Mass. 603, 662. 
 
 63 
 
§ 82 TAXATION 
 
 regulate than to revenue, under the power of police.'^ The same author, 
 at the same place, describes the exercise of this power as follows : 
 
 " 'There are some cases in which levies are made and collected 
 under the general designation of taxes, or under some term em- 
 ployed in revenue laws to indicate a particular class of taxes, 
 where the imposition of the burden may fairly be referred to 
 some other authority than to that branch of the sovereign power 
 of the state under which the public revenues are apportioned and 
 collected. The reason is, that the imposition has not for its ob- 
 ject the raising of revenue, but looks rather to the regulation of 
 relative rights, privileges, and duties as between individuals, to 
 the conservation of order in the political society * * * . 
 Legislation for these purposes it would seem proper to look upon 
 as being made in the exercise of that authority which is inherent 
 in every sovereignty, to make all such rules and regulations as are 
 needful to secure and preserve the public order and to protect 
 each indivdual in the enjoyment of his own rights and privileges 
 by requiring the observance of rules of order, fairness, and good 
 neighborhood, by all around him. This manifestation of the 
 sovereign authority is usually spoken of as the police power.' 
 Examples of this kind of assessments are to be seen in the usual 
 license fees."°* 
 
 § 82. A license defined. — In Webster's Dictionary we find a "li- 
 cense" defined as : 
 
 "Authority or liberty given to do or forbear any act ; especi- 
 ally a formal permission from the proper authorities to perform 
 certain acts or to carry on a certain business, which without such 
 permission would be illegal."'* 
 
 Judge Cooley^' defines and describes a license as follows : 
 
 "A license is a privilege granted by the state, usually on pay- 
 ment of a valuable consideration, though this is not essential. 
 To constitute a privilege the grant must confer authority to do 
 something which without the grant would be illegal; for if 
 what is to be done under the license is open to every one with- 
 
 B^Black's Const. Law, p. 348. 
 "'See § 71, Occupation tax, and § 78, Excise. 
 
 s*For previous consideration of this subject, see § 71, "Occupation tax," and 
 § 78, "Excise." 
 6B0n Taxation, 3d ed., vol. 2, p. 1137. 
 
 64 
 
NATURE § 83 
 
 out it, the grant would be merely idle and nugatory, conferring 
 no privilege whatever. But the thing to be done may be some- 
 thing lawful in itself, and only prohibited for the purposes of 
 the license, that is to say, prohibited in order to compel the tak- 
 ing out of a license. This is always the case where that which 
 is licensed was not unlawful at the common law." 
 
 § 83. "Registration" is a license of the machine.— The law of li- 
 cense applies to a motor vehicle in two aspects, (a) as respecting the 
 registration, which is a license of the vehicle, and, (b), as a privilege 
 to the owner enabling him to operate the vehicle. In Com. v. Boyd,°° 
 the question arose concerning the character of the fee to be paid for the 
 registration of an automobile, under chapter 473, of the motor vehicle 
 Act of 1903, which was the same in this respect as the provision of chap- 
 ter 534, °' Act of 1909. The Supreme Court held "that the registration 
 fee of two dollars, required to be paid by section one, is plainly a license 
 fee and not a tax."°* 
 
 In the case last cited,^' the court say that in the contemplation of 
 motor vehicle laws, a license to operate as distinguished from registra- 
 tion, "is personal to the particular person who operates the vehicle.'' In 
 Com. V. Hawkins,*" defendant was convicted of operating an automobile 
 without having registered the same, in violation of a city ordinance. He 
 urged that the ordinance was indefinite in not specifying "whether the 
 license is imposed upon the owner or the vehicle." The court, by 
 Presiding Justice Frazer, say the objection : 
 
 "Is not well founded. The ordinance requires the car to be 
 equipped with brakes, lamps and signal, and on the rear thereof 
 must be displayed the license number in a prominent and con- 
 spicuous place. These, with other provisions undoubtedly indi- 
 cate the licensing of the carriage and not the owner."'^ 
 
 A license fee for jitneys of $10 to $30, is a license fee and not an oc- 
 cupation tax.®^* 
 
 6«i88 Mass. 79, 74 N. E. 255. 
 
 8'Mass. St. 1909 s. 534 s. 9, 10. 
 
 ^^See to same effect, Unwen v. State, yz N. J. Law 529, 64 Atl. 163. See § 74, 
 where the case is quoted, and Emerson v. Pearson, 74 N. H. 22. 
 
 ^^Emerson Co. v. Pearson, 74 N. H. 22. 
 
 «"i4 Pa. Dist. Ct. Reps. 592, 594. 
 
 *iSee also for general considerations City of Buffalo v. Lewis, 192 N. Y. 193, 
 84 N. E. 8og, and People v. Schneider, 139 Mich. 673, 675, 103 N. W. 172. 
 
 "laEx parte Sullivan, Tex. Crim. App., 178 S. W. 537. 
 
 65 
 
 s 
 
§ 84 TAXATION 
 
 § 84. License must be personal. — There is one great distinction 
 between the registration of a motor vehicle and a license to operate it, 
 that the latter must be personal while the former may issue to a partner- 
 ship or corporation. 
 
 A partnership or corporation is not entitled to a motor vehicle license 
 as such. They may register the machine "in the corporate or partner- 
 ship name, but the license must be issued to the person who operates 
 
 § 85. Registration by dealers. — Motor vehicle statutes commonly 
 provide for a separate class of registration for manufacturers or dealers 
 for use in their business. 
 
 Under such a statute a dealer who uses a vehicle for private purposes 
 without a separate number aside from his manufacturer's number is 
 guilty of violating the statute."' 
 
 A car is properly registered where it is in good faith placed with a 
 dealer for sale and registered with the dealer's number and is then 
 loaned by the dealer to the owner for a day when the accident happens, 
 although others under the cover of the dealer's number cannot operate 
 their own cars. The statute does however imply that the dealer may at 
 times loan cars to others."* 
 
 § 86. Registration in Proper Name.— Where there is evidence that 
 a garage run in the name of the son is really the property of the father 
 the jury may find that an automobile used in the garage business and 
 registered in the name of the son was illegally registered."^ 
 
 Where a corporation sells its plant to another its automobiles should 
 be reregistered in the name of the purchaser under the Massachusetts 
 statute,"^* 
 
 Although an automobile is not registered in the name of the general 
 owner still where there is evidence that it is controlled by his employer 
 and carries his numbers and is used as a shop the question whether it is 
 really under the control of the employer and carried his numbers is a 
 question for the jury.''^'" 
 
 62Emerson etc. Co. v. Pearson, 74 N. H. 22, 64 Atl. 582. 
 
 BsPeople V. Hanna, 136 N. Y. S. 162. 
 
 o^Shaw V. Conn. Co., 86 Conn. 409, 85 Atl. 536. 
 
 esGould V. Elder, 219 Mass. 396, 107 N. E. 59- 
 
 esaChase v. New York Central R., 208 Mass. 137, 94 N. E. 377- 
 
 ssbHolland v. Boston, 213 Mass. 560, 100 N. E. 1009. 
 
 66 
 
NATURE § 87 
 
 The fact that the plaintiff was the owner of an automobile and had 
 had it registered in his own name which registration had expired and 
 that he still retained to a degree its custody and possession, is evidence 
 that it should be registered in his name."^" 
 
 § 87. Registration under Trade or Business Name. — An automo- 
 bile is properly registered under the trade name under which the owner 
 does business where this trade name is well known even though the 
 owner had not filed a certificate of his trade name as required by law."" 
 
 § 88. "A license is not a tax." — Reiterating what has been said on 
 the subject of occupation tax and excise, it is at this time, almost un- 
 necessary to do more than to mention the phrase used in the caption. 
 It is found frequently in the decisions, as a terse expression of the idea 
 of a license distinguished from a tax. In Com. v. Boyd,"^ Mr. Justice 
 Loring, speaking of the registration of an automobile, says it is : "Plain- 
 ly a license fee and not a tax." In Conklin Lumber Co. v. City of Chi- 
 cago,"' Presiding Justice Adams, speaking of a license to conduct a lum- 
 ber business, says : 
 
 "The license fee is not a tax within the meaning of the Con- 
 stitution. But~even though it may be denominated a tax in the 
 nature of an exaction, this is immaterial.""' 
 
 A license fee imposed on motor vehicles is not a property tax and 
 void as double taxation where it is only levied on vehicles operated on 
 the public highways of the State. From this it is plain that it 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 the public highway. Under this law a man may own 
 one or any number of motor vehicles, 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."^" 
 
 § 89. Not a tax when proceeds must be used on the roads. — A 
 motor vehicle tax is not void as a general revenue measure where the 
 
 asoHolland v. Boston, 213 Mass. 560, 100 N. E. 1009. 
 
 seCrompton v. Williams, 216 Mass. 184, 103 N. E. 298, 9 N. C. C. A. 831. 
 
 8''i88 Mass. 79, 74 N. E. 255. 
 
 S8127 III. App. 103, IDS. 
 
 *'So also held in Cleary v. Johnston, 79 N. J. L. 49, 74 Atl. Repr. 538. 
 
 '»Ex parte Hoffert, 34 S. D. 271, 148 N. W. 20, 52 L. R. A. N. S. 949- 
 
 • 67 
 
§ 90 TAXATION 
 
 proceeds can only be used on the roads. This renders it in the nature 
 of a license or toll for the use of the highways as motor vehicles are 
 far more destructive of roads than others. The State could exclude 
 them altogether from the highways and so it may call upon the users 
 of such vehicles to contribute to the expense caqsed to the public by their 
 use.'^ 
 
 Ill 
 
 VALIDITY 
 
 § 90. In general. 
 
 91. What is meant by "'reasonable" as applied to an excise tax. 
 
 92. Double taxation. 
 
 93. New license required under new law. 
 
 94. License law not void as authorizing imprisonment for debt. 
 
 95. Licenses by counties. 
 
 96. Tax apportioned by State among cities and towns. 
 
 97. Wheel tax. 
 
 98. License tax for use on roads. 
 
 99. Delegation of authority to license. 
 100. Jurisdiction of licensing officer. 
 
 loi. Power of legislature to fix duties of officers. 
 
 102. Municipal authority to impose license fees. 
 
 103. City license as regulation. 
 
 § 90. In general." — In the case of Rohr v. Bray," Mr. Justice Bris- 
 coe, speaking for the court, says : 
 
 "While it is true that every person in the State, or person 
 holding property therein should contribute his proportion of 
 public taxes for the support of the government according to 
 his actual worth in real or personal property, and that all_ taxes 
 levied upon property should be equal and uniform according to 
 its actual value, yet the framers of the Constitution also declared 
 that in addition to taxes on property other taxes might be levied 
 'for the good government and benefit of the community.' A 
 license tax as laid or imposed here, is not a direct tax on prop- 
 erty within the meaning of the first clause of the fifteenth article 
 of the bill of rights, but is a tax on tlie business or occupation 
 
 "Ex parte Hoffert, 34 S. D. 271, 148 N. W. 20, 52 L. R. A. N. S. 949. 
 "See § 78, "Excise," and § 80, "License." 
 788o Md. 274, 276, 30 Atl. 632. 
 
 68 - - ■ 
 
VAUDITY § 91 
 
 of the trade or licensee, under the last clause of that article. The 
 power of a state, says the Supreme Court, to impose a tax, in 
 the way of license upon pursuits and occupations within its 
 limits, has never been seriously questioned. License Tax Cases, 
 5 Wall. 472 ; Welton v. Missouri, 91 U. S. 278." 
 
 § 91. What is meant by "reasonable" as applied to an excess tax, 
 — Connecticut Insurance Co. v. Commonwealth'* was a case involving 
 the power of the legislature to impose an excise. The opinion of the 
 court was written by Chief Justice Morton, who says : 
 
 "It has been uniformly held, since the formation of our govern- 
 ment, that under this provision of the constitution, the legis- 
 lature has the power to impose an excise upon any business or 
 calling exercised in the Commonwealth, and upon any franchise 
 or privilege conferred by or exercised within the Commonwealth. 
 The power to impose an excise * * * cannot now be doubted. 
 The only limitation of the power is that contained in the con- 
 stitutional provision that the duty or excise shall be 'reasonable.' 
 
 "The power to determine what callings, franchises or privi- 
 leges, or, to use the language of the constitution, 'commodities,' 
 shall be subjected to an excise and the amount of such excise, 
 belongs exclusively to the legislature. The provision that it must 
 be 'reasonable' was not designed to give to the judicial depart- 
 ment the right to revise the decisions of the legislature as to the 
 policy and expediency of an excise. Great latitude of discretion 
 is given to the legislature in determining, not only what 'com- 
 modity' shall he subjected to excise but also the amount of the 
 excise and the standard or measure to be adopted as the foun- 
 dation of the proposed excise.''^ The court cannot declare a tax 
 or excise illegal and void, as being unreasonable, unless it is 
 unequal, or plainly and grossly oppressive, and contrary to com- 
 mon right." 
 
 In "The Opinion of the Justices" to the Senate, of March 23, 1908,'^*' 
 the court, referring to chapter I, section i, of article IV of the constitu- 
 tion of Massachusetts, say, "these are the only provisions of this con- 
 stitution directly affecting the subject of taxation.'' On the subject of 
 an excise tax, the court say : 
 
 "The excise taxes authorized by the constitution must be 
 reasonable, but need not be proportional. This method of tax- 
 
 '*i33 Mass. 161, 163. 
 
 '^Italics by the author of this book. 
 
 '619s Mass. 607, 608. 
 
 69 
 
§ 92 TAXATION 
 
 ation has been applied to most corporations in this Common- 
 wealth, and the constitutionality of the legislation has been es- 
 tablished." 
 
 Where the evidence tends to show that the cost of regulation is in 
 excess of the fee charged it will be sustained although the operators of 
 the motor busses involved claimed that they could not pay the tax and 
 profitably operate under it." 
 
 § 92. Double taxation. — On the subject of double taxation, Mr. 
 Justice Cooley,'' quoting a line of cases, says : 
 
 " 'The power to tax twice,' it is said in another case, 'is as 
 ample as to tax once.' We make out therefore, no conclusive 
 case against a tax, when we show that it reaches twice the same 
 property for the same purpose." 
 
 The manner in which all forms of taxes other than a direct tax affect 
 the present consideration, is as a tax "on the privilege of carrying on the 
 business," that is to say, of using and operating the vehicle. "It has 
 been seen that it is no conclusive objection to any such tax that it dupli- 
 cates the burden to the person who pays it. To tax a merchant upon his 
 stock as property and also upon his gross sales, may seem burdensome, 
 but it is not unconstitutional when the people have not seen fit expressly 
 to forbid it. The two taxes are not identical, and though it may operate 
 unjustly in individual cases, to impose both, such will not be a necessary 
 result ; and it is always to be presumed that all the burdens of taxation 
 have been distributed by the legislature with due regard to equality in 
 the final results of collection. A tax, therefore, which at first blush ap- 
 pears to be invidious and partial may nevertheless in its ultimate results 
 prove to be as just and equal as any."" 
 
 The subject is discussed at length, by Mr. Justice Hand, in Harder's 
 Storage, Etc., Co. v. Chicago (City),'" where, speaking for the Supreme 
 Court, he answers the contention often raised, that motor vehicle license 
 laws are in reality double taxation. The judge says : 
 
 "The law is well settled that the owner of vehicles used upon 
 the public streets and highways may be required to pay an ad 
 
 ■"Booth V. Dallas, Tex. Civ. App., 179 S. W. 301. 
 7S0n Taxation, 3d ed, p. 392. 
 fsCooley on Taxation, 3d ed., p. 1095. 
 8O235 111. s8, 85 N. E. 24s. 
 
 70 
 
VAUDITY § 92 
 
 valorem tax upon such vehicles as property, and also may be 
 required to pay a tax upon the right or privilege of using such 
 vehicles in his business — that is, an occupation tax. The sub- 
 ject of the ad valorem taxation is property. The subject of the 
 other taxation is a right or privilege — an entirely distinct and 
 different thing. Because these two things are distinct and dif- 
 ferent the two taxes do not constitute double taxation. The 
 question which is now to be considered is whether or not, in ad- 
 dition to the ad valorem tax on vehicles, as property, and a license 
 tax on the right to pursue an occupation in which vehicles may 
 be used, there may be imposed also a license tax upon the right 
 or privilege of using vehicles upon the public streets and high- 
 ways. Precisely the question is, whether or not a license tax upon 
 an occupation in which an owner of vehicles is engaged and in the 
 pursuit of which he uses such vehicles, and a license tax upon 
 the right to use such vehicles upon the public streets and high- 
 ways, are taxes upon the same thing, and hence double taxation. 
 "No matter what the subject of taxation, some person must 
 pay the tax. When one person pays a tax for the privilege 
 of pursuing his occupation and for the privilege of using ve- 
 hicles on the public streets, he is paying taxes on distinct and 
 different things, and the fact that he may use vehicles in his 
 occupation can make no difference. For example, two men each 
 carry on a laundry. One uses vehicles, the other does not. Can 
 the man who has the vehicles justly claim exemption from the 
 tax on the privilege of using vehicles on the street because he 
 has paid his occupation tax ? This occupation tax was paid for 
 the privilege of carrying on a laundry, and he may or may not 
 make use of the further privilege of using vehicles on the streets. 
 The taxes which complainant in the case at bar must pay are 
 levied upon three separate and distinct subjects: (i) An ad 
 valorem tax on its vehicles, as property ; (2) an occupation tax 
 or license on the privilege of carrying on business as a carter or 
 public teamster; and (3) a license tax on the privilege of using 
 its vehicles on the public streets. Taxation upon each of these 
 three different subjects is not double or triple taxation simply be- 
 cause one person may have to pay two or all of the three taxes, 
 since it is not the person who is taxed, but his property and his 
 privileges. One person may avail himself of a half dozen or 
 more different privileges, for each of which he may be required 
 to pay a tax or license f ee."*^ 
 
 s^See also Unwen v. State, 73 N. J. Law, 529, 533, 64 Atl. 163; Ayres v. 
 City of Chicago, 239 111. 237, 1909, 87 N. E. io73 ; State v. Mayo, 75 Atl. Repr. 
 29s (Maine), 1909; Pegg v. City of Columbus, 80 Ohio St. 367, 89 N. E. I4- 
 
 7X 
 
§ 93 TAXATION 
 
 The levy of an ad valorem tax on property and also a license or occu- 
 pation tax on the same property is not double taxation. A license fee 
 is not a tax within the meaning of the organic law requiring uniformity 
 of rates and just valuations of property for purposes of taxation.*^ 
 
 So a license tax on hackney carriages is not unreasonable when ap- 
 plied to automobiles which have already paid a State registration fee. 
 The fee is reasonable for the purpose of regulation and is not therefore 
 a tax in the constitutional sense.*^ 
 
 But a statute imposing license fees far in excess of the cost of issuing 
 the license and containing no other exemption from taxation violates a 
 state constitution requiring uniformity.** 
 
 § 93. New license required under new law.— Although a defend- 
 ant has taken out a perpetual license to operate under a law permitting 
 such a license still he may be required under a later statute to take out a 
 new license. Such a law is not unconstitutional as impairing the obli- 
 gation of a contract.*' 
 
 § 94. License law not void as authorizing imprisonment for 
 debt. — A statute requiring an operator's fee is not void as authorizing 
 imprisonment for debt because it provides as a penalty for operating 
 without a license imprisonment in jail upon default in payment of the 
 fine authorized.*" 
 
 § 95. Licenses by counties. — The law may provide for the issue of 
 licenses by counties in which case the operator of a motor vehicle must 
 take out a license in each county in which he operates.*' 
 
 § 96. Tax apportioned by state among cities and towns. — ^Where 
 the State constitution prohibits the imposition of a tax payable to the 
 State and relieving the taxpayer of paying taxes to the cities and 
 counties, a motor vehicle law is valid providing for the payment of taxes 
 to the State in lieu of all other taxes on the motor vehicles but also pro- 
 
 82 Jackson v. Neflf, 64 Fla. 326, 60 So. 350; Ex parte Schuler, 167 Cal. 282, 139 
 Pac. 68s, Ann. Cas. 1915, 13, 706; Mark v. District of Columbia, 37 D. C. App. 
 g63, 37 I<. R. A- N. S. 440. 
 " 8sState V. Jarvis, (Vt. 1915), ps Atl. 541. 
 
 sijanes v. Groves, 58 Ohio Law Bui. SS- 
 
 86Ruggles V. State, 120 Md. 553, 87 Atl. 1080. 
 
 8»Ruggles V. State, 120 Md. 553, 87 Atl. 1080. 
 
 sTState V. Cobb, 113 Mo. App. 136, 87 S. W. 551. 
 
 72 
 
VALIDITY § 97 
 
 viding that the taxes collected shall be apportioned among the counties 
 and municipalities.'' 
 
 § 97. Wheel tax. — This subject is referred to more particularly in 
 considering the case commonly known as "The Wheel Tax" Case.'° 
 At this time it is only necessary to quote Judge Hand in Harder's 
 Storage, Etc., Co. v. Chicago (City) :»" 
 
 "When a statute substantially like the statute under consid- 
 eration in the case at bar came before' this court in the Gartside 
 Case" (Gartside v. City of East St. Louis, 43 111. 47), "the 
 court held that the right or privilege of using vehicles on the 
 streets was a proper subject of license taxation. * * * 
 There are a great many things which had been done or enjoyed 
 as a matter of right, and which later, by legislative act, were 
 properly made the subject of license taxation."'^ 
 
 § 98. License tax for use on roads. — The legislature has the right 
 to impose a privilege tax on motor vehicles to be spent on the high- 
 ways. They have become a class of vehicles of their own peculiar kind 
 and this is a reasonable and proper classification. By reason of the 
 weight and speed of motor vehicles there would be a greater wear and 
 tear from their use and this justified their classification to bear the 
 burden of a special tax.°^ 
 
 It is clearly within the power of the legislature to require those who 
 use motor vehicles upon the public roads to pay a license tax therefor 
 to be used in keeping the roads in proper condition for convenient use. 
 A license tax may be imposed for the use of motor vehicles in the pub- 
 lic roads even though an ad valorem tax is paid on such motor vehicles 
 and they are not used for hire or charge and even though a license tax 
 is not imposed for the use of vehicles of other kinds used upon the 
 roads.'^ 
 
 s^Ex parte Bozeman, 7 Ala. App. 151, 63 So. 201. 
 
 s'City of Chicago v. Collins, 175 111. 445, 51 N. E. 907. See post § 102. 
 
 90235 111. S8, 8s, 8s N. E. 255. ^ 
 
 '^See also St. Louis v. Grafeman D. Co., 190 Mo. 492, 89 S. W. 617, and par- 
 ticularly the remarks of Chief Justice Parker, in Portland Bank v. Apthorp, 12 
 Mass. 253, 256, quoted § 79. 
 
 '^State V. Lawrence, 105 Miss. 58, 66 So. 745. 
 
 "sjackson v. Neff, 64 Fla. 326, 60 So. 350. 
 
 73 
 
§ 99 TAXATION 
 
 § 99. Delegation of authority to license. — We have seen in another 
 connection,'* that the legislature may delegate the exercise of its 
 authority in a limited degree, to pubUc commissions, boards, and the 
 like. The following remarks, though directed to cities and towns, ap- 
 ply as well to officials of the kinds mentioned. Judge Cooley,*^ says : 
 
 "The grant of a license may be made by the State directly, or 
 it may be made indirectly through one of the municipal corpo- 
 rations of the State. Of the indirect grant it is to be observed 
 that a municipal corporation as such has no inherent power to 
 grant licenses or exact license fees; it must derive all its authori- 
 ty in this respect from the State, and the power must come by 
 direct grant and cannot be taken by implication." 
 
 In Levin v. Goodwin,'" the principal question was whether a license 
 granted to the defendant by municipal authority or by a board of pubUc 
 officials, under a statute permitting him to keep a billiard or pool room, 
 was a full protection to him. The Supreme Court, by Mr. Justice La- 
 throp, say: 
 
 "The legislature has seen fit to delegate to municipal author- 
 ities, except in Boston, and in Boston to the board of police, the 
 power to grant a license * * * upon such terms or condi- 
 tions as they deem proper, and to revoke it at their pleasure. 
 There can be no doubt that the law is constitutional." 
 
 The officer to whom the licensing power is delegated cannot in his 
 turn delegate his authority to another. So the licensing officer cannot 
 issue blank Ucenses to automobile associations who desire to pay for 
 them and issue them from time to time filling in the names of the per- 
 sons to whom they are issued.'^ 
 
 § 100. Power of legislature to fix duties of officers.— The legisla- 
 ture may add to the duties of officers created by the constitution by 
 placing upon them additional duties to receive and disburse motor 
 vehicle fees where their duties are fixed by the legislature.'* 
 
 § loi. Jurisdiction of licensing officer. — Where the power to issue 
 Hcenses is granted to an officer by a State law, such power can only be 
 
 »*See § 36 et seq., Legislative power to delegate authority. 
 
 »60n Taxation, 3d ed., vol. 2, p. 1138. 
 
 90191 Mass. 341, 77 N- E. 718. 
 
 B^Opinion of Att. Gen., 33 Pa. Co. Ct. Rep. 512. 
 
 »8Cora. V. Powell, 249 Penn. 144, 94 Atl. 746. 
 
 74 
 
VALIDITY § 102 
 
 exercised within the territorial limits of the jurisdiction of the officer. 
 Thus, if the State law empowers a county officer to issue motor vehicle 
 licenses, such licenses would be ineffectual (in the absence of express 
 statutory provisions to that effect) beyond the boundaries of the county 
 in which the officer is located. And if there were no general state 
 official empowered to issue licenses, a motor vehicle owner would be 
 "required to take out a license in each county over whose roads he de- 
 sires to run his automobile.""' 
 
 § 1 02. Municipal authority to impose license fees — the "Wheel 
 Tax" cases. At this point it is not inappropriate to call attention to the 
 case of City of Chicago v. Collins,^ and to consider it in connection 
 with, that of Harder's Storage, Etc., Co. v. Chicago (City).^ The 
 Collins Case, is commonly referred to as the "Wheel Tax" case, and as 
 such is founded frequently cited. At first glance it appears that the two 
 decisions are not in harmony, but a closer examination of both will dis- 
 close the reasons why the court in Harder's Case took a different view 
 of the city ordinance in force in 1908, from the view taken by the same 
 court in the Collins Case, of the ordinance in force in 1898. 
 
 The Collins Case was directed against the constitutionality of an ordi- 
 nance providing that "all vehicles used upon the streets of the city, in- 
 cluding those for private use," should pay an annual license fee, and be 
 "properly tagged," and that all moneys received, under the provisions of 
 the ordinance "should constitute a separate fund to be known as the 
 "Wheel Tax Fund," to be used "for repairing and keeping in good 
 condition the streets of the city." The opinion was written by Mr. Justice 
 Phillips, covering two points, of which only one is of present interest, 
 namely : "Has the city, under the express or implied powers conferred 
 on it by the legislature, authority to adopt this ordinance ?" It was held 
 (i) That the city controlled the streets in the interest of the public for 
 the purposes of travel, and such use by the public being a matter of 
 right, in the absence of legislative authority, the city could not exact 
 a Ucense fee for such use; (2) That the Ucense fee imposed, created 
 "a double tax, which rendered it invalid, the same vehicles being taxed 
 
 9»State V. Cobb, 113 Mo. App. 156, 1905, 87 S. W. 551. 
 117s 111- 44S> 51 N. E. Repr. 107.' 
 2235 111- S8. 85 N. E. 255. 
 
 75 
 
§ 102 TAXATION 
 
 for general purposes at their value as personal property." And the 
 opinion concludes : 
 
 "The authority to impose a tax or to exact a license must clear- 
 ly appear and must be strictly construed. If there is a doubt as 
 to the right, it must be resolved adversely to it. In this case there 
 IS no express power given the city council to impose this license 
 tee, and no implied power arises which gives the right. It has 
 no power to levy a tax in this manner. In any view of the case, 
 the city had no power to adopt this ordinance." 
 
 In Harder's Case, Mr. Justice Hand , reviews the opinion of Judge 
 Phillips, quoting from it liberally.^ 
 
 He says that the contention of the city was that it had implied power 
 to impose a license tax under its power to "regulate" the useofthestreets. 
 As to this, he observes that Judge Phillips held, that in the absence of 
 legislative authority, the city had no implied power to impose a tax upon 
 property which should not be uniform or should be in its nature double 
 taxation. And further that, in the absence of statutory authority, the 
 city could not tax as a privilege the use of the streets, such use belong- 
 ing to citizens as a right. Judge Hand, in dwelling upon this point, 
 particularly calls attention to the fact, that at the time of the passage 
 of the ordinance referred to in the Collins Case, there was no legisla- 
 tive authority enabling the city "to impose a license tax upon the use 
 of the streets — that, the right to use the streets had not been made a sub- 
 ject of license taxation by act of the legislature" ; that subsequently, by 
 virtue of a later act, that which theretofore was a common right became 
 a privilege and liable to a license tax at the discretion of the municipal 
 authorities, and that it was under this later condition of legislation that 
 Harder's Case was to be decided. Upon this branch of the matter, the 
 opinion closes with the remark : 
 
 "Clearly, therefore, the court, in the Collins Case, did not mean 
 to say that nothing can be subjected to license if it be lawful 
 to do the thing without legal authority. There are a great many 
 things which had been done or enjoyed as a matter of right, 
 and which later, by legislative act, were properly made the sub- 
 ject of license taxation."* 
 
 3See § 92 for Judge Hand's views upon the contention of double taxation. 
 
 *See in addition Ayres v. City of Chicago, 230 111. 237, igog, 87 N. E. 1073; 
 State V. Mayo, 75 Atl. Repr. 295, 106 Me. 62 ; Pegg v. City of Columbus, 80 Ohio 
 St. 367, 89 N. E. 14- 
 
 76 
 
UCBNSE § 103 
 
 § 103. City license as regulation. — ^A city ordinance imposing a fee 
 on vehicles is not authorized as an occupation tax when it includes those 
 not leased for hire but it may be sustained as an exercise of the police 
 power as a regulation of the use of the streets when the fee is only so 
 large as to cover the expense of issuing the license.^ 
 
 IV 
 
 CLASSIFICATION OF SUBJECTS OF LICENSE 
 
 § 104. Uniformity. 
 
 105. "Graded" license fees. 
 
 106. Graduated fees void as a police regulation. 
 
 107. License fees in excess of cost of registration — Graduated fees. 
 
 108. Exemption from local taxation. 
 
 109. Fees proportioned to horse power. 
 
 no. Graduation of vehicles according to number of horses. 
 
 111. Classification by seating capacity. 
 
 112. Exempting municipal vehicles. 
 
 -1 13. Classifying trucks, etc., in one class. 
 
 114. Exempting pleasure vehicles and those of non-residents. 
 
 115. Exempting motor vehicles and taxing horse-drawn vehicles. 
 
 116. Higher rate on vehicles used for hire. 
 
 117. Special rate to chauflfeurs. 
 
 118. Exempting traction engines. 
 
 § 104. Uniformity." — While uniformity in matters of license is not 
 essential to validity, "it is generally held that occupation taxes must be 
 uniform upon the same class of subjects."^ In Banta v. City of Cl^icago,' 
 the court consider a municipal ordinance "for the purpose of raising 
 revenue through the medium of license fees." The contenton was that 
 the ordinance was not uniform in respect to both persons and property 
 and was therefore invalid. The court, by Mr. Justice Boggs, say : 
 
 "When revenue is sought to be raised by the imposition of 
 license fees, the authority exercised is that given by the pro- 
 visions of section one of article nine of the constitution of 1870, 
 and it is only necessary, in order to comply with the provisions 
 
 »Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199. See post Chapter IX. 
 *See § 26 et seq., Class legislation under the police power. 
 'Cooley on Taxation, 3d ed., p. iioo. 
 
 8172 111. 204 221, 50 N. E. 233, quoted by Mr. Justice Hand in Harder's Storage 
 etc. Co. V. Chicago (City), 235 111. 58, 81, 8s N. E. 255. 
 
 77 
 
§ lOS TAXATION 
 
 of that section, that the ordinance shall be 'uniform as to the 
 class upon which it operates/^ 
 
 "The ordinance under consideration excuses no one of the 
 class upon which it operates from the payment of the license fee, 
 but exacts a uniform fee from each person in said class. It is 
 uniform in respect to the persons affected, and more is not re- 
 quired by the constitution." 
 
 Judge Hand (in Harder's Case, supra, § 102), supplements the re- 
 marks of Mr. Justice Boggs, as follows : 
 
 "It is therefore apparent that the only constitutional limitation 
 controlling in any way the right of the legislature to confer upon 
 municipalities in the State the right to exact a license fee for the 
 use of their streets is, that the same must be by 'general law, 
 uniform as to the class upon which it operates.' " 
 
 In Com. V. Hawkins,^" Presiding Judge Frazer says : 
 
 "In view of the fact that appellate courts generally through- 
 out the country have upheld the right of municipalities to collect 
 license fees upon street cars, wagons and other vehicles, we 
 deem it unnecessary to discuss appellant's contention that the 
 ordinance violates, 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 pro- 
 tection of the law.' "" 
 
 § 105. "Graded" license fees. — The subject of "graded" license 
 fees applied to automobiles, has aroused general interest, and in some 
 states has been adopted as the method of computing the fee to be 
 paid for the privilege of operation. It is therefore necessary to inquire 
 upon what principles of law it depends and what hmitations surround 
 their application. In the outset it should appear, that this form of excise 
 is primarily for revenue, regulation being incidental. It is usual for the 
 act creating the system to provide that the revenue derived shall be used 
 for the benefit of the highways, after paying the expenses of its col- 
 lection and the cost of the incidental regulation of the use of motor 
 vehicles. 
 
 ^Italics by the author of this book. 
 i»i4 Pa. Dist. Ct. Reps. 592. 
 
 "See also Giozza v. Tiernan, 148 U. S. 657, 662, 13 S. Ct. 721, quoted in chap- 
 ter on Interstate Travel, sec. 194. 
 "State V. Swagerty, 203 Mo. 517, 102 S. W. 483- 
 
 78 
 
LICENSE § 105 
 
 It has been seen that the paramount authority of the legislature is 
 such that any scheme of revenue will be sustained by the courts which 
 is not obnoxious to constitutional limitation. It is also a general propo- 
 sition of the law of licenses, that the fees to be paid shall bear uniformly 
 upon persons similarly situated, that is to say, who are in the same class. 
 What number shall be sufficient to form a class is necessarily indefinite 
 and variable. It is for the legislature to determine "when the conditions 
 reasonably justify the distinguishing of a class." It follows, therefore, 
 that when, in the judgment of the legislature, a "class" is to be sub- 
 divided into groups and each group classified by itself, there is nothing 
 repugnant to constitutional principles, unless the refining process be 
 carried too far and discriminate in favor of or against particular indi- 
 viduals.^' 
 
 For many years and with judicial sanction, horse-drawn vehicles have 
 been distinguished from vehicles propelled by the power of steam, and 
 each has been separately classed. Again, horse-drawn vehicles have 
 been divided into those confined to rails, and those moving freely in all 
 parts of the highway, different standards of license being applied to 
 each. Still again, subdivision of the last mentioned class has occurred, 
 vehicles on four wheels perhaps, being placed in one group, and those 
 on two wheels in another; or perhaps, vehicles drawn by two horses 
 have been made to pay one rate of license fee, and vehicles drawn by 
 one horse, another. Where, then, in principle, is there any distinction 
 when it comes to grading or grouping automobiles into sub-classes ac- 
 cording to their horse-power, or the number of passengers they carry? 
 It may be said of either kind, that the large or heavy vehicle pays a 
 license fee rated on some arbitrary basis, a commercial vehicle pays on 
 a standard established for the class within which it falls, and the pleas- 
 ure vehicle owner pays his license according to the vehicle which he 
 operates. Anybody can join any one or several of the classes as he 
 chooses. In no sense does the charge bear differently upon similarly 
 situated individuals. But, it is argued, "it is not proportionate or law- 
 ful to place motor vehicles in one class and horse-drawn vehicles in 
 another, charging upon the former a heavy occupation tax or excise, 
 and letting the latter go free of license, or at most exacting from them 
 
 i^See Timm v. Harrison, 109 111. S93> 601, .quoted in § 125, I^iquor license ; see 
 ante § 13, Chap. I, "Commercial motor vehicle." 
 i*Dillon on Mun. Corp, 4fh ed., sec. 682. 
 
 7^ 
 
§ I05 
 
 TAXATION 
 
 a small operation fee." The reply to this is to repeat the language of 
 Judge Burgess, in Swagerty's Case,'' that it is for the legislature to 
 determine "when the conditions justify the distinguishing of a class," 
 and to quote the language of the justices in their Opinion to the Senate." 
 "Excise taxes authorized by the constitution must be reasonable, but 
 need not be proportional." As to the effect of the word "reasonable" 
 used by the justices in this connection, it cannot be better expressed 
 than as stated by Chief Justice Morton in Connecticut Ins. Co. v. Com- 
 monwealth," where, speaking of an excise tax, he says : 
 
 "The provision that it must be 'reasonable' was not designed 
 to give to the judicial department the right to revise the deci- 
 sions of the legislature as to the policy and expediency of an 
 excise. Great latitude of discretion is given to the legislature in 
 determining not only what 'commodity'" shall be subjected to 
 excise but also the amount of the excise and the standard or 
 measure to be adopted as the foundation of the proposed excise. 
 The court cannot declare a tax or excise illegal and void as being 
 unreasonable, unless it is unequal, or plainly and grossly oppres- 
 sive, and contrary to common right."'' 
 
 Finally it may be assumed that, as matter of fact, no one will in this 
 day, assert that motorists are not sufficiently numerous to constitute a 
 class capable of subdivision in almost any state of the Union. 
 
 In justifying a license fee based on this or any other standard of 
 computation, it should be always borne in mind that the law must be so 
 designed as not to discriminate between similarly situated in different 
 localities of the same jurisdiction. For example, if a license were re- 
 quired of a hack owner on one street and not from hack owners of the 
 same class on another street, both being in the same town, there would 
 be such a discrimination as would render the law or ordinance a nullity. 
 Thus a tax on each and every person keeping a dairy in certain limits 
 on each cow is not uniform, because the tax is not upon all cows within 
 
 Instate V. Swagerty, 203 Mo. 517, 102 S. W. 483. 
 
 10195 Mass. 607, 608, 84 N. E. 499- 
 
 1^133 Mass. 161, 163, quoted more fully at § 91. 
 
 i^See § 79, for meaning of word "commodity"' as used in the Massachusetts 
 constitution. 
 
 I'See also Giozza v. Tiernan, 148 U. S. 657, 662, 13 S. Ct. 721, quoted in § 194, 
 Interstate travel. 
 
 80 
 
WCENSE § 105 
 
 the jurisdiction.^" Professor Freund,^^ speaking upon the general sub- 
 ject, says: 
 
 "The method of discrimination most in accordance with the 
 spirit of constitutional equality, is that of abstract determination, 
 where it can be applied. This would mean that the condition is 
 defined by reference to the public interest which it affects and 
 the degree of danger which it imports, so that all other dangers 
 of the same kind and degree would be covered by the definition." 
 
 Mr. McQuillin^^ observes: 
 
 "An ordinance dividing vehicles and teams into different 
 classes, and imposing an occupation tax on the separate classes 
 has been sustained." Citing Terre Haute v. Kersey, infra, § i lo. 
 
 The subject of graded motor vehicle license is not an entirely new 
 one. It has been established under municipal control, by legislative au- 
 thority in Chicago, whose ordinance may be quoted in a comparison 
 with the Massachusetts statute. The ordinance referred to relates to 
 both horse-drawn and motor vehicles, classifying them and providing 
 for fees as follows :^* 
 
 "One-horse wagon or vehicle, $5; two-horse wagon or ve- 
 hicle, $10; three-horse wagon or vehicle, $15 ; four-horse wagon 
 or vehicle, $25 ; six or more horse wagon or vehicle, $35 ; auto- 
 mobiles with seats for two persons, $12 ; automobiles with seats 
 for more than two persons, exclusive of trunks, coaches and 
 busses, $20; automobile trucks, coaches and busses, $30." 
 
 The ordinance further provides 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 or alley improvement or repair." 
 
 ^"Burroughs on Taxation, sec. 54. 
 ^iPolice Power, sec. 724. 
 22Mun. Ord., sec. 424. 
 
 2sThe excerpts from the Chicago ordinance are taken from Harder's Storage 
 etc. Co. V. Chicago (City), 235 HI. S8, 85 N. E. 245. 
 
 81 
 6 
 
§ Io6 TAXATION 
 
 Turning to the Massachusetts Act of 1909, chapter 534, section 29, 
 it is provided that the following fees shall be paid : 
 
 "S'or the registration of every automobile of twenty horse 
 power and above, but less than thirty horse power, fen dollars. 
 For the registration of every automobile of thirty-horse power 
 and above, but less than forty- horse power, fifteen dollars. For 
 the registration of every automobile of forty-horse power and 
 above, but less than fifty-horse power, twenty dollars. For the 
 registration of every automobile of fifty-horse power and above, 
 twenty-five dollars." 
 
 And by section 30, the revenue derived is disposed of as follows : 
 
 "The fees and fines received under the provisions of this act 
 * * * shall be paid * * * into the treasury of the 
 Commonwealth, and shall be used" (after defraying the expenses 
 of collection and of administering the regulative provisions of 
 the act) "for the maintenance of state highways." 
 
 The constitutionality of the Chicago ordinance was tested and sus- 
 tained in the case of Harder's Storage, Etc., Co. v. Chicago (City).* 
 It appears from the reported points of counsel, that the following ques- 
 tions were discussed, and decided favorably to the act: (i) Constitu- 
 tional power of the legislature as to taxation and control of the high- 
 ways; (2) Double taxation; (3,) Occupation tax; (4) Discrimina- 
 tion ("class" legislation) ; (5) Taxation by way of license for revenue 
 purposes; (6) Taxing as a "privilege" the use of the streets which 
 latter exists as a right.^* 
 
 A case under a similar title went subsequently to the same court, 
 where it was reported in the same volume.f The contention in the 
 latter case was based upon the distinction between a vehicle carrying a 
 load, and one that was used for passenger purposes only. 
 
 § 106. Graduated fees void as a police regulation. — A motor 
 vehicle law is void where it is not claimed to be a revenue measure and 
 imposes graduated fees from five to twenty-five dollars on automo- 
 
 *23S III. 58, 8s N. E. 24s. 
 t23S 111- 294, 8s N. E. 2SS. 
 
 2^In the opinion in this case, the court review and distinguish City of Chicago 
 V. Collins, 17s III. 445, commonly known as the "Wheel Tax" case. See § 102. 
 
 82 
 
LICENSE § 107 
 
 biles where the expense of registration is not over one dollar as this is 
 an unreasonable scale of fees for a police regulation.^" 
 
 § 107. License fees in excess of cost of registration — Graduated 
 fees. — A license fee in excess of an amount which will defray the 
 necessary expense of issue cannot be imposed under the police power 
 because it then becomes a revenue measure. The fact that the fee is 
 graduated according to horse power shows this to be true.^* 
 
 The California Mqtor Vehicle Act of 1913 is valid although it exacts 
 fees far in excess of the requirements of a police measure and for the 
 purpose Of maintaining State highways." It is a proper license or 
 privilege tax charged in the nature of compensation for the damage 
 done to the roads by the driving of automobiles over them. The fact 
 that an ad valorem tax is levied by local authorities upon all automobiles 
 as property does not make this double taxation.?* . 
 
 The motor vehicle law of 1912 is not void as a revenue measure be- 
 cause it exacts fees above the necessary cost of registration. The legis- 
 lature has a right to exact a license fee to cover the expense of regis- 
 tration and also to charge a license tax for the damage done to the 
 roads by the driving of automobiles over them.^' 
 
 Fees for registration of $15 for a motor vehicle of 30-horse power 
 or less and $20 for a motor vehicle of 30-40 horse power, $25 for a 
 motor vehicle of 45-50 horse power and $40 for a motor vehicle of over 
 50 horse power are not void because they exceed fees necessary for 
 policing the roads.^" The fee is exacted not upon the ownership of the 
 motor vehicle but upon the right to use it upon the public highways. 
 Therefore it is not void as in conflict with the requirement of uniformity 
 in the State constitution which applies only to property taxes. Motor 
 vehicles, especially those of high power, are exceedingly destructive of 
 the roads and this statute was a proper exercise of the discretion of the 
 legislature.'^ 
 
 § 108. Exemption from local taxation. — The act exempting motor 
 
 ^^State V. Lawrence, 105 Miss. 58, 66 So. 745. 
 
 28Vernor v. Michigan, 179 Mich. 157, 146 N. W. 338, 38 Ann. Cas. 128. 
 
 2^67 Cal. 282, 139 Pac. 685, Ann. Cas. 1915B, 706. 
 
 28Ex parte Schuler, 167 Cal. 282, 139 Pac. 685, Ann. Cas. 191SB, 706. 
 
 2»State V. Ingalls, 18 N. M. 211, 135 Pac. 1177. 
 
 ^"26 Idaho 74, 146 Pac. 113. 
 
 ''^Ex parte Kessler, 26 Idaho 74, 146 Pac. 113. 
 
 83 
 
§ 109 TAXATION 
 
 vehicles from local taxation is void under a constitution giving the 
 legislature full power in the subjects of taxation.^'' 
 
 § 109. Fees proportioned to horse power.^' — ^The California 
 Motor Vehicle Act of 1913 is not void because it refuses registration 
 fees proportioned to horse power.^* An automobile of higher horse 
 power is generally heavier than one of lower horse power. The fact 
 . that the duty of determining the horse power is committed to the State 
 department of engineering does not take the owner's property without 
 a hearing as he has a right to a hearing before this board and if they 
 act erroneously he has recourse to the courts.'^ 
 
 § no. Graduation of vehicles according to number of horses. — 
 The case of the City of Terre Haute v. Kersey^* went twice to the Su- 
 preme Court. It arose out of a city ordinance providing for a license 
 on every vehicle, graduated according to the number of horses required 
 to draw it. All revenue derived from the license was to be applied 
 "only to the maintenance and repair of the streets and alleys of the city." 
 There is no provision reported indicating that the ordinance contained 
 any reference to motor vehicles. The opinion of Mr. Justice Jordan 
 very fully considers the" principle points, and generally, the whole sub- 
 ject of legislative and municipal power in matters of taxation. On this 
 subject, it is said (p. 3,10) : 
 
 "There is nothing unjust or wrong in a city, when so em- 
 powered by the legislature, requiring the payment of a properly 
 or reasonably graduated tax as in the case at bar, which must be 
 considered in the nature of a toll imposed for the exercise of the 
 privilege of using the streets by means of vehicles. In fact, the 
 right of exacting the payment of such a license tax is akin to the 
 principle by which the establishment of toll roads over public 
 highways by virtue of legislative authority, and the rightto col- 
 lect toll from persons traveling in vehicles thereon, is sus- 
 taincd jk * * 
 
 "The ordinance in question seems to grade the tax imposed 
 that the owners of vehicles whose use of the streets, in the course 
 of time would subject them to the most wear are required to pay 
 the greater tax. The tax being imposed, as disclosed by section 
 
 szAchenbach v. Kincaid, 25 Idaho 768, 140 Pac 529- 
 
 ssSee further cases cited under §§ 105-107. 
 
 84i67 Cal. 282, 139 Pac. 685. ,„ . r, -15 ,oA 
 
 85Ex parte Schuler, 167 Cal. 282, 139 Pac 685, Ann. Cas. ipisB, 706. 
 
 86159 Ind. 300, 64 N. E. 469- 
 
 84 
 
LICENSE § III 
 
 five of the ordinance, for the purpose of raising revenue to be 
 applied to the maintenance and repair of the streets, it would be 
 inconsistent and unreasonable to graduate the amount to be paid 
 according to the value of the vehicle. Their value under the cir- 
 cumstances, can not be considered as a factor in regard to the 
 wear or injury to the streets resulting from their use thereon, for 
 it is manifest that a wagon or carriage worth not to exceed $50 
 might, in its use upon the streets, serve to wear them as much or 
 more than one of the value of $500."" 
 
 On the second appeal'* the constitutionality of the ordinance was at- 
 tacked on the ground that it "invidiously discriminates against the 
 property of appellant," in that it "excludes from its scheme of taxation 
 electric street cars and automobiles." The court, by Chief Gillett, say : 
 
 "We think it too plain to need elaboration that in the exercise 
 of the power of classification the council was authorized to ex- 
 clude from its scheme of taxation electric street cars and auto- 
 mobiles." 
 
 § III. Classification by seating capacity. — Automobiles under an 
 excise tax may be classified according to seating capacity.^® 
 
 § 1X2. Exempting municipal vehicles. — ^A law is constitutional 
 which exempts from registration fees vehicles used for municipal pur- 
 poses. *° 
 
 § 113. Classifying trucks, etc., in one class. — A privilege tax on 
 motor vehicles is not void for classifying motor trucks, motor drays, 
 motor delivery wagons, traction engines, motor rollers, fire engines, 
 police patrol wagons, automobiles and vehicles running upon rails in one 
 class and all other motor vehicles in another class. The court notes that 
 the first class is confined in its use almost entirely to city streets while 
 the second class is used on the country roads. This classification is 
 valid." 
 
 ^^As to physical effects of motor vehicles on roadbed compared with horse- 
 drawn vehicles, see McCarter v. I,udlum, 71 N. J. Eq. 330, 63 N. E. 504. 
 38Reported 161 Ind. 471, 475, 68 N. E. 1027. 
 
 =9Mark v. District of Columbia, 37 D. C; App. 563, 37 L. R. A. N. S. 440. 
 "Ruggles V. State, 120 Md. 553, 87 Atl. 1080. 
 *iEx parte Hoffert, 34 South Dakota 271, 148 N. W. 20, 52 L. R. A. N. S. 949. 
 
 85 
 
§114 TAXATION 
 
 § 114. Exempting pleasure vehicles and those of non-residents.*" 
 
 A certain city ordinance taxing automobiles is valid although it exempts 
 pleasure vehicles, and out-of-town vehicles used by their owners. The 
 classification is for the legislative body.*^ 
 
 § 115. Exempting motor vehicles and taxing horse-drawn ve- 
 hicles. — ^An ordinance is void which exempts from taxation automobiles 
 used in connection with the owner's business where horse-drawn ve- 
 hicles of that nature are taxed. This is an arbitrary classification.*' 
 
 § 116. Higher rate on vehicles used for hire. — ^A discrimination 
 shown in the revised license tax imposed upon motor vehicles when used 
 for hire is based upon real and substantial differences in conditions and 
 is amply justified.** 
 
 § 117. Special rate to chauffeurs. — ^A special license fee charged to 
 professional chauffeurs is valid although other operators of motor 
 vehicles are not charged a license fee. Chauffeurs offer their services 
 to the public and are frequently carriers of the general public and the 
 chauffeur is more apt to be careless as he is not driving his own car.*" 
 
 A law is constitutional which places a higher fee on professional 
 chauffeurs as this requirement is manifestly directed to the promotion 
 of public safety and as such is within the police power of the State and 
 also is valid as a license tax upon occupations.** 
 
 § 118. Exempting traction engines.— The exemption from regis- 
 tration fees of traction engines used in hauling agricultural machinery 
 is valid in view of the design of the statute to regulate motor vehicles 
 capable of being operated at high speed.*' 
 
 Such a traction engine unless specially exempted will come within 
 the provisions of a motor vehicle law.*' 
 
 *iaAs to fees charged to non-residents see further § i94- 
 *2Kellaher v. Portland, 57 Oregon 575, "2 Pac. 1076. ffi 
 *3Kellaher v. Portland, 57 Oregon 575, "2 Pac. 1076. 
 **Jackson v. Neff, 64 Fla. 326, 60 So. 350. 
 *sEx parte Stork, 167 Cal. 294, i39 Pac. 684. 
 *6Ruggles V. State, 120 Md. 553, 87 Atl. 1080. 
 *TRuggles V State, 120 Md. 553, 87 Atl. 1080. 
 "Emerson Co. v. Pearson, 74 N. H. 22, 64 Atl. 582. 
 
 86 
 
INTOXICATING LIQUORS § "9 
 
 V. 
 
 THE LAW OF LICENSE AS IT IS APPLIED TO INTOXICATING 
 
 LIQUORS 
 
 § 119. Scope of treatment. 
 
 120. Taxation by way of license. 
 
 121. Taxation and license distinguished. 
 
 122. License fees not taxation. 
 
 123. Revenue not the primary object of license. 
 
 124. "High license." 
 
 123. "Graded" license in this connection. 
 
 § 119. Scope of treatment. — The law of license as applied to the 
 sale of intoxicating liquor, bears a sufficiently close analogy to some of 
 the features of the general subject to warrant a brief statement of 
 its principles, taken from Mr. Henry Campbell Black's treatise on the 
 "Law of Intoxicating Liquors." The works of that author on "Con- 
 stitutional Law," on the "Interpretation of Laws," and as a law lexi- 
 cographer ("Black's Lam Dictionary") , have made him an authority 
 whose utterances command respect upon every subject regarding which 
 he has written. 
 
 § 120. Taxation by way of license. — In Black^' it is said : 
 
 "It is entirely customary, under our system to impose excep- 
 tional taxation upon certain pursuits and callings, upon the 
 theory that, from their relation to the public interest * * * 
 they should be classed as special privileges or franchises 
 * * * . Where the legislature has power to tax an occu- 
 pation, it has the further power to rnake it a penal ofifense for 
 any person to engage in that occupation without first paying the 
 tax imposed * * *. Such provisions cannot be said to de- 
 prive the citizen of his rights or property without due process of 
 law."'" 
 
 At section 109, the same author observes : 
 
 "It is a general principle of constitutional law' that taxes shall 
 be equal and uniform in their operation. This, however, does 
 not prevent the classification of occupations and their unequal 
 taxation, if the dififerential process does not discriminate be- 
 
 *'0n Intox. Liq., sec. 107. 
 
 ""See also Intoxicating Liquor Cases, 25 Kans. 751, 761. 
 
 87 
 
§ 121 TAXATION 
 
 tween persons properly belonging to the same class. For in- 
 stance, where the legislature is empowered to tax occupations, 
 with a proviso that such taxes shall be 'equal and uniform upon 
 the same class of subjects,' this does not necessitate equality and 
 uniformity as between different classes of occupations, nor the 
 imposition of the same conditions upon every class. * * * 
 And while it is requisite that all persons pursuing the same occu- 
 pation in the same way, should be taxed alike, there is no ob- 
 jection to making a distinction between different branches or 
 different forms of the same business, according to the degree of 
 public importance attaching to their due regulation, or to other 
 inherent distinguishing circumstances." 
 
 § 121. Taxation and license distinguished. — It has been already ' 
 observed that the distinction between a "tax" and a "license" is well 
 settled. "Taxation," says Black,^^ 
 
 "assumes the legality of the business for any who niay choose to 
 pursue it, but imposes a burden for the public benefit upon those 
 engaged in it. The case is not altered by the fact that payment 
 of the tax is made a condition precedent to the right to engage in 
 the business." "A license law, assumes the illegality of the busi- 
 ness and denounces penalties upon those who pursue it without 
 previously protecting themselves by procuring a license. Also it 
 restricts the right to obtain a license to certain classes of persons, 
 and considers their moral qualifications in making the selection 
 
 * * *. Hence it follows that any law which requires certain 
 acts other than the mere payment of the tax, to be done by the 
 party as a prerequisite to his right to enter upon the pursuit 
 
 * * * and makes it a penal offence to engage in the busmess 
 without such formalities, is in reality a license law, no matter 
 whether it be called a tax or by any other name."^^ 
 
 § 122. License fees not taxation.— "The exaction of a fee for privi- 
 lege of a license * * * is essentially distinguishable from the im- 
 position of a tax upon the business. * * * A fee received for a li- 
 cense * * * granted by the state or a municipal corporation, is not 
 a tax, within the meaning of the constitutional provisions requiring 
 equality and uniformity in taxation.""' 
 
 § 123. Revenue not the primary object of license.— "Revenue is 
 not the chief object of license laws ; it is not even their primary purpose. 
 
 silntox. Liq., sec. 108. 
 
 62See Cleary v. Johnston, 79 N. J. L. 49, 74 Atl. Repr. 538. 
 
 lisBlack on Intox. Liq., sec. 179. 
 
 88 
 
INTOXICATING LIQUORS § 124 
 
 The principal aim of such statute is to restrict the number of persons 
 engaged in the * * * trafiSc, to regulate the conduct of their busi- 
 ness, and, by such restriction and regulation, to promote the welfare 
 
 * * * of society. They are therefore enacted in the exercise of the 
 police power. * * * No question as to the adequacy or excessive- 
 ness of the amount charged can properly be propounded to the courts. 
 
 * * * It cannot be questioned, that it is legitimate and proper to 
 take into account all the probable consequences, or that the payment 
 to be exact should be sufficient to cover all the incidental expenses to 
 which the public are likely to be put by means of the business being 
 carried on. And all reasonable intendments must favor the fairness and 
 justice of a fee thus fixed; it will not be held excessive unless it is 
 manifestly something more than a fee or regulation."" 
 
 §124. "jHigh license." — Coming under the head of license for re- 
 striction in addition to regulation, even extending to limits of prohi- 
 bition, is the idea of "high license" as applied to the sale of intoxicating 
 hquors. No purely regulative feature is involved, nor does the subject 
 of taxation for revenue play a primary part. Vindication of this form 
 of license lies "on the plainest grounds of public policy."°^ As an illus- 
 tration of the extent of legislative authority in the exercise of the police 
 power, high license serves as a rharked example. Even in states where 
 constitutional limitations exist relative to the extent of taxation in any 
 of its forms, this method has been sustained.'" 
 
 § 125. "Graded" license in this connection,^'' — In this connection 
 Mr. Black'* says: 
 
 "And, while it is requisite that all persons pursuing the same 
 occupation in the same way should be taxed alike, there is no 
 objection to making a distinction between different branches or 
 different forms of the same business according to the degree of 
 public importance attaching to their due regulation or to other 
 inherent distinguishing circumstances." 
 
 "^Black on Intox. Liq., sec. i8r. 
 ssKellor v. State, 11 Md. 525. 
 
 seBlack on Intox. I/iq., sec. 181; Freund Police Power, sec. 39; Cooley on 
 Taxation, 3d ed., p. 1145. 
 °^See § 105, for discussion of this topic. 
 '^Int. L,iq., sec. 109. 
 
 89 
 
§ 125 TAXATION 
 
 In a liquor case involving the constitutionality of a graded license 
 fee, Chief Justice Sheldon, speaking for the Supreme Court of Illinois, 
 says : 
 
 "Conceding for the purpose of the argument, that the license 
 fee exacted by the act in question is a tax, within the meaning 
 of the constitution, we are of opinion that the act is not in con- 
 flict with the rule of uniformity as to the class upon which it 
 operates. The term 'liquor dealer' used in * * * the Con- 
 stitution, is, as we regard it, used in a generic sense. There may 
 be different classes and varieties of liquor dealers included under 
 the general description, 'liquor dealers,' and we think it is compe- 
 tent for the general assembly to classify the different kinds of 
 liquor dealers included in the general description as used in the 
 constitution, and impose differential taxes upon such classes — 
 that the rule of uniformity in taxation would not be violated so 
 long as the tax imposed is the same upon all the members of the 
 particular class.""' 
 
 •»Timm v. Harrison, 109 111. 593, 601. 
 
 90 
 
CHAPTER VII. 
 
 VALIDITY AND CONSTRUCTION OF STATUTES AND ORDINANCES 
 
 § 126. Object of interpretation. 
 
 127. Strict construction. 
 
 128. Implied effect. 
 
 129. Language of the act to be unambiguous. 
 
 130. Construction of "police" regulations. 
 
 131. Penal statute described. 
 
 132. Construction of penal statutes. 
 
 133. Construction of remedial statutes. 
 
 134. Construction of revenue and tax laws. 
 
 135. Construction in view of other legislation. 
 
 136. Presumption against implied repeal. 
 
 137. Title of the act. 
 
 138. Acts relating to more than one subject. 
 
 139. Construction of ordinances. 
 
 140. Ignorance of the law. 
 
 § 126. Object of interpretation. — Nowhere does the object of all 
 interpretation and construction of statutes find more complete expres- 
 sion than in the remarks of Chief Justice Du Bois in a recent case.^ 
 The statement is the more valuable because it has reference to a general 
 motor vehicle law. 
 
 The court holds that the object of all intCTpretation and con- 
 struction of statutes is to ascertain the intent in order to carry 
 the same into effect. Herein courts are aided by the doctrine of 
 implications. This doctrine does not warrant the court to go to 
 the length of supplying things intentionally omitted from the act, 
 but it authorizes the drawing of inferences from the general 
 meaning and purpose of the legislature, and from the necessity 
 of making the act operative and effectual, as to those minor or 
 specific things included in the broad and general terms of the 
 law, or as its consequences, which the legislature must be under- 
 stood to have foreseen and intended. 
 
 § 127. "Strict construction of a statute is that which refuses to ex- 
 pand the law by implications or equitable considerations, but confines 
 
 ^State V. Myette, ^(i Atl. Repr. 664, 30 R. I. 556. 
 
 Ql 
 
§ 128 STATUTES AND ORDINANCES 
 
 its operation to cases which are clearly within the letter of the statute 
 as well as within its spirit or reason, not so as to defeat the manifest 
 purpose of the legislature, but so as to resolve all reasonable doubts 
 againt the applicability of the statute to the particular case. Liberal 
 construction, on the other hand, expands the meaning of the statute to 
 embrace cases which are clearly within the spirit or reason of the law, 
 or within the evil which it was designed to remedy, provided such an 
 interpretation is not inconsistent with the language used; it resolves 
 all reasonable doubts in favor of the applicability of the statute to the 
 particular case."^ 
 
 § 128. Implied Effect. — The language of a statute must be given 
 the effect implied by its terms. 
 
 So a statute requiring traction engines run across bridges to have 
 planks under the wheels until November first implies that after that 
 date no planks are necessary.' 
 
 A statute of limitations covering damages "for injuries to the per- 
 son" includes an action by a husband for injury to his wife's person.* 
 
 § 129. Language of the act to be unambiguous.— The language of 
 a statute must be so clear as not to contain ambiguities which cannot be 
 cleared up. 
 
 "A statute must be capable of construction and interpretation, 
 otherwise it will be inoperative and void. The court must use 
 every authorized means to ascertain and give it an mtelhgible 
 meaning; but if, after such effort, it is found to be impossible 
 to solve the doubt and dispel the obscurity, if no judicial cer- 
 tainty can be settled upon as to the meaning, the court is not at 
 liberty to supply or make one. The court may iiot allow con- 
 jectural interpretation to usurp the place of judicial exposition. 
 There must be a competent and efficient expression of the legis- 
 lative will."" 
 In People v Dow' the state law provided for a different rate of 
 speed inside the "business portion" from that permitted in "other por- 
 .Black on Interpretation of Laws, sec. 113; Mattel v. GilUes ^6 Ont Law 
 Reps SS8 (Can.), 1908; State v. My^tte, 76 Atl. Repr. 664, 30 R. I- 556, Uty 01 
 Shawnee v. Landon, 3 Okl. Cr. 440, 106 Pac. 652. 
 sTown of Hedrick v. Lane, 170 Iowa 437, 152 N. W. 610. 
 *Sharkey v. Skilton, 83 Conn. 503, 11 Atl. 950. 
 
 sBlacks Interpretation of Laws, sec. 36; State v. Partlow. 91 N. C. S50, 552 > 
 State v. Thurston, 28 R. I. 265. 66 Atl. 580. 
 nw Mich. IIS, "8 N. W. 745- 
 
 92 
 
STATUTES AND ORDINANCES § 13° 
 
 tions" of cities and towns. Defendants argued that the statute was 
 indefinite in failing to define what is the "business portion" of a city 
 or town, and what constituted its "other portions." The court over- 
 ruled the contention on the ground that it was a matter of common 
 knowledge as to what is the "business portion" and what is known as 
 the residence or "other portion," and said that, while it might be in- 
 convenient for the driver to arrange his speed accordingly, it was "not 
 a good reason for saying that the requirement is unreasonable." 
 
 In State v. Smith^ the Supreme Court of Rhode Island had before 
 it a similar contention. In that state, by an old act, riding was pro- 
 hibited at a rate faster than "a common traveling pace," in specified lo- 
 calities. It was argued that the act was vague in not defining a "com- 
 mon traveling pace." The court held that the expression criticized had 
 always had a clear and well understood meaning and that a complaint 
 charging a violation was sufficiently clear.* 
 
 In Suell V. Jones' the court held that there was no conflict between 
 the provisions contained in the ordinance which required the driver of 
 a vehicle to pass another vehicle in a certain manner, and also required 
 that he shall keep to a certain side of the street while going in a given 
 direction. 
 
 § 130. Construction of "police" regulations. — "Statutes enacted 
 by the legislature in the exercise of the police power, for the promotion 
 or preservation of the public safety, health, or morals, may sometimes 
 impinge upon the liberty of individuals, by restricting their use of 
 their property, or abridging their freedom in the conduct of their busi- 
 ness. When this is the case, such statutes ought always to receive such 
 a construction as will carry out the purpose and intention of the leg- 
 islature with the least possible interference with the rights and lib- 
 erties of private persons ;" such enactments being "designed to further 
 the general welfare by derogating from the liberty of a few."^" 
 
 '35 R. I. 282, 69 Atl. 1061. 
 
 8But see City of Shawnee v. Landon, 3 Okl. Cr. 440, 106 Pac. Repr. 652 (Okla.), 
 where the court held that the expression always having had reference to convey- 
 ances drawn by animals, the statute being penal, could not be extended to include 
 motor vehicles. 
 
 »49 Wash. 582, 96 Pac. 4. 
 
 loBlack's Interpretation of Laws, sec. 115; Radnor Township v. Bell, 27 Pa. 
 Super. Ct. I, 1904; Christy v. Elliott, 216 111. 31, 74 N. E. 1033; Cora. v. Kings- 
 bury, 199 Mass. 542, 8s N. E. 848. 
 
 93 
 
§ ^31 STATUTES AND ORDINANCES 
 
 § 131. Penal statute described."— "The words 'penal' and 'pen- 
 alty,' in their strict and primary significance, denote a punishment, 
 whether corporal or pecuniary, imposed and enforced by the state 
 for a crime or ofifense against its laws; and 'penal laws,' strictly and 
 primarily, are those imposing.a punishment for an offense against the 
 state, which the executive of the state has the power to pardon, and 
 the expression does not include statutes which give a primary action 
 against the wrong-doer or provide for the numerous forfeitures or 
 penalties growing out of breaches of duty that partake of the nature 
 of a civil grievance or a merely local wrong, and which do not come 
 within the category of criminal conduct.''^^ 
 
 § 132. Construction of penal statutes.— "Penal statutes are to be 
 construed strictly, but not so strictly as to defeat the manifest purpose 
 and intention of the legislature."'^ 
 
 In State v. Goodwin" Chief Justice Hadley, in construing the motor 
 vehicle law of that state, takes the view that defendant's contention 
 would require a "highly unreasonable, if not absurd" construction of the 
 statute, and continues : 
 
 "While the rule of strict construction applies generally to the 
 interpretation of criminal statutes, the excessively strict construc- 
 tion that formerly prevailed has in recent years been so modified 
 as to look, within the bounds of reason and common sense, to 
 the legislative intent when plainly manifested or expressed in 
 the enactment, Courts, on the one hand, refusing to hold those 
 not clearly brought within the scope of the statute, and, on the 
 other hand, equally refusing, by radical refinement, or unrea- 
 sonable or incongruous construction, to discharge those plainly 
 within its scope." 
 
 The modern tendency to mitigate the severity of the old rule of 
 strict construction, is exemplified by the language of the Canadian Act, 
 7 Edw. VII, ch. 2, sec. 7, sub-div. 41 (Ontario) : 
 
 "Every act and every provision or enactment thereof shall 
 be deemed remedial whether its immediate purport be to direct 
 
 iiSee § 488, Penalties, fines and forfeitures. 
 
 i2Black's Interpretation of Laws, sec. 114. See opinion by Mr. Justice Gray in 
 Huntington v. Attrill, 146 U. S. 657, 667. 
 
 isBlack's Interpretation of Laws, sec. 114; Snyder v. N. Lawrence, 8 Kans. 
 82 ; Com. V. Dfensmore, 29 Pa. Co. Ct. Reps. 217, 1904- 
 
 "169 Ind. 26s, 267, 82 N. E. 459. 
 
 94 
 
STATUTES AND ORDINANCfiS § I33 
 
 tlie doing of anything which the legislature deems to be for the 
 public good, or to prevent or punish the doing of anything which 
 it deems to be contrary to the public good ; and shall accordingly 
 receive such fair, large and liberal construction and interpreta- 
 tion as will best insure the attainment of the object of the act, 
 and of the provision or enactment, according to the true intent, 
 meaning and spirit thereof." 
 
 But while every proper effort should be made to carry out the inten- 
 tion of the legislature, still, as already observed, a penal statute cannot 
 be expanded by implication.^^ 
 
 A reference in a statute authorizing recovery of damages for careless 
 driving, to a statute covering liability for death does not incorporate 
 the penalty provided by the latter statute. A court will not create a 
 penalty by construction if it may be avoided.^* 
 
 § 133. Construction of remedial statutes. — "Remedial statutes are 
 to be liberally construed with a view to effectuate the purposes of the 
 legislature ; and if there be any doubt or ambiguity, that construction 
 should be adopted which will best advance the remedy provided and 
 help to suppress the mischief against which it was aimed."^' 
 
 § 134. Construction of revenue and tax laws. — "Statutes imposing 
 taxes and providing means for the collection of the same should be 
 construed strictly in so far as they may operate to deprive the citizen 
 of his property by summary proceedings or to impose penalties or 
 forfeitures upon him; but otherwise tax laws ought to be construed 
 with fairness, if not liberality, in order to carry out the intention of 
 the legislature and further the important public interests which such 
 statutes subserve."^* 
 
 i^See Weirich v. State, 140 Wis. 98, 121 N. W. 652 ; People v. Hayes, 66 N. Y. 
 Misc. Reps. 606, 124 N. Y. S. 417; City of Shawnee v. Landon, 106 Pac. Repr. 652, 
 3 Okl. Cr. 440. 
 
 i^Nicholas v. Kelley, 159 Mo. App. 20, 1391 S. W. 248. 
 
 I'Black's Interpretation of Laws, sec. 117; Com. v. Boyd, 188 Mass. 79, 74 N. 
 E. 255; Ex parte Berry, 147 Cal. 523, 82 Pac. Repr. 44; Christy v. Elliot, 216 111. 
 31, 74 N. E. I03S ; People «x rel. Hainer v. Prison Keeper, 190 N. Y. 315, 322, 83 
 N. E. 44; Mattel v. Gillies, 16 Ont. (Can.) Law Reps. 558, 1908. 
 
 isBlack's Interpretation of Laws, sec. 121 ; Washington Elec. Vehicle Co. v. 
 Dist. of Col, 19 App. D. C. 462; Buffalo (City) v. Lewis, 192 N. Y. 193, 84 N. 
 E. 809. 
 
 95 
 
§ 135 STATUTES AND ORDINANCES 
 
 In Wales v. Stetson'^" Chief Justice Parsons said : 
 
 "In the consideration of the provisions of any statute they 
 ought to receive such a reasonable construction, if the words and 
 subject-matter will admit of it, as that the existing rights of the 
 public, or of individuals, be not infringed." 
 
 In Harder's Storage, Etc., Co. v. City of Chicago^" the court quote 
 Chicago v. CoUins^^ as follows : 
 
 " 'The authority to impose a tax or to exact a license must 
 clearly appear and must be strictly construed. If there is a doubt 
 as to the right, it must be resolved adversely to it." 
 
 § 135. Construction in View of other Legislation. — One aid to 
 the interpretation of statutes is a consideration of the state of the law on 
 the subject, of other statutes or other parts of the same statute. Such 
 treatment is proper that the whole law may have a harmonious interpre- 
 tation. For example the Missouri motor vehicle law should be con- 
 strued with other legislation at the same session of the legislature pro- 
 viding for a road fund for the maintenance of the public roads.^^ 
 
 A general definition of the term "intersecting way" in a statute ap- 
 plies to a section which it is provided goes into effect in July although 
 the section containing the definition does not go into effect till the fol- 
 lowing December."' 
 
 § 136. Presumption against implied repeal. — "Repeals by implica- 
 tion are not favored. A statute will not be construed as repealing 
 prior acts on the same subject (in the absence of express words to 
 •that effect)' unless there is an irreconcilable repugnancy between them, 
 or unless the new law is evidently intended to supercede all prior acts 
 on the matter in hand and to comprise in itself the sole and complete 
 system of legislation on that subject."" 
 
 192 Mass. 142. 
 
 2023s 111- S8, 86, 8s N. E. 2SS. 
 
 2117s 111. 445. SI N. E. 907- 
 
 22Gassonade County v. Gordon, 241 Mo. 569, 145 S. W. 1160. 
 
 28Cpmmonwealth v. Cassidy, 209 Mass. 14, 95 N. E. 214. 
 
 2iBlack's Interpretation of Laws, sec. S3; Com. v. Hawkins, 14 Pa. Dist. Ct. 
 Reps. 592, 594; Bellingham v. Cissna, 44 Wash. 397, 87 Pac. 481 ; Buffalo (City) 
 V. Lewis, 192 N. Y. 193, 84 N. E. 809; Feasel v. State of Ohio, 6 Ohio Nisi Prius, 
 N. S. 321, 323; Suell V. Jones, 49 Wash. S82, 96 Pac. 4. 
 
 96 
 
STATUTES AND ORDINANCES § 137 
 
 In Johnson v. Mayor of Quincy^' Chief Justice Knowlton says : 
 
 "The law does not recognize repeals by implication, unless the 
 new legislation is inconsistent with the old." 
 
 An illustration of the foregoing principles is to be found in the re- 
 pealing paragraph of the Massachusetts motor vehicle Act of 1909 1^" 
 
 "The provisions of this act, so far as they are the same as 
 those of existing statutes, shall be construed as a continuation 
 thereof, and not as new enactments ; and a reference in a statute 
 which has not been repealed to provisions of law which have been 
 revised and re-enacted herein shall be construed as applying to 
 such provisions as so incorporated in this act." 
 
 The motor vehicle act defining the duties of the driver of an automo- 
 bile in case of collision to stop and give certain information does not 
 repeal that portion of the penal code requiring him also to render as- 
 sistance to an injured person.^'' 
 
 A provision requiring a driver to pass another in a given manner, is 
 not in conflict with an additional requirement that he shall keep on a 
 certain side of the street while going in a given direction.^* 
 
 The Arkansas motor vehicle law of 191 1 which is complete in itself 
 by implication repeals a prior act giving municipalities the right to im- 
 pose a tax for the privilege of keeping and using wheeled vehicles.^" 
 
 § 137. Title of the act. — In states where there is no constitutional 
 provision on this subject, the title of a statute cannot control or vary 
 the meaning of the enacting part if the law is plain and unambiguous. 
 But where the Constitution provides that "each act of the legislature 
 shall relate to but one subject which shall be expressed in the title, the 
 effect is to make the title a part of the enactment so that any provisions 
 of the act which lie outside the title will be rejected by the courts as 
 unconstitutional, if that can be done without destroying the entire 
 law.''^" And this goes even to the extent of rendering the entire law 
 
 26198 Mass. 411, 84 N. E. 606. 
 
 ^'Chapter 534, section 32. 
 
 27People V. Finley, 27 Cal. App. 291, 149 Pac. 779. 
 
 28Suell V. Jones, 49 Wash. 582, 96 Pac. 4. 
 
 2«Helena v. Dunlap, 102 Ark. 131, 143 S. W. 138. 
 
 ^oBlack's Interpretation of Laws, sec. ^(>. 
 
 97 
 
§ 137 STATUTES AND ORDINANCES 
 
 unconstitutional when the whole enacting part relates to matter differ- 
 ent from that expressed in the title.'^ 
 
 Thus in the case of People v. Busse^^ it was contended that the title 
 of the act under consideration, being to "regulate," and the body of the 
 act having the effect of prohibiting the sale of cigarettes, the act itself 
 was therefore unconstitutional. Chief Justice Hand, in delivering the 
 opinion of the court, says : 
 
 "It is clear we think, under a proper title, the legislature has 
 the right, under the exercise of its police power, to pass an act 
 prohibiting the sale of cigarettes. It is, however, apparent that 
 it has not the power to prohibit the sale of cigarettes under the 
 title of an act which only provides for the regulation of the sale 
 of cigarettes, and if it were clear that section one of said act 
 was intended to absolutely prohibit the sale of cigarettes we 
 should have no hesitation in holding that the act, in so far as it 
 attempted to absolutely prohibit the sale of cigarettes, was 
 broader than its title and the act was unconstitutional and void." 
 
 A title of a statute "An act providing for the registration, identifica- 
 tion and regulation of motor vehicles" is broad enough to impose civil 
 liability. The word "regulate" is broad enough to imply a penalty .^^ 
 
 The title of an act "to license motor vehicles" is sufficient to cover a 
 license tax,^* and the title of an act covering "motor vehicles and other 
 vehicles" will include horse-drawn vehicles.^^ 
 
 "An ordinance governing and regulating traffic on the streets" is a 
 proper title for an ordinance regulating motor vehicles. The word 
 traffic is not confined to merchandise.'* 
 
 The Highway Commission Act of 1913 is not void as containing 
 matter not expressed in its title where it includes on exemption from 
 taxation of motor vehicles where the title of the act describes the duty 
 of the commission.^' 
 
 '^Chittenden v. Columbus (City), 26 Ohio C. C. 531, 1904; Christy v. Elliott, 
 216 III. 31, 74 N. E. 1035. 
 32231 111. 251, 255, 83 N. E. 175- 
 
 ssjohnson v. Sergeant, 168 Mich. 444, 134 N. W. 468, 2 N. C. C. A. 334. 
 s^Jackson v. Neff, 64 Fla. 326, 60 So. 350. 
 ==State V. Russian, in Minn. 488, 127 N. W. 495. 
 s'Withey v. Fowler Co., 164 Iowa 377, 145 N. W. 923. 
 '^Achenbach v. Kincaid, 25 Idaho 768, 140 Pac. 529. 
 
 98 
 
STATUTES AND ORDINANCES §138 
 
 The requirement of a special and annual license to professional 
 chauffeurs is properly inserted under a title Licenses, sub-title Motor 
 Vehicles.'* 
 
 § 138. Acts relating to more than one subject. — In some states 
 there is constitutional prohibition of a legislative act embracing more 
 than one subject, and that subject is required to be stated in its title. 
 The purpose of such a provision is to prevent the union in the same 
 act of incongrous matters, and "to prevent surprise in legislation by 
 having matter of one nature embraced in a bill whose title expressed 
 another."^' In such case if a statute attempts to accomplish two or 
 more objects and is void as to one, it may still be in every respect valid 
 as to the other.*" "But if the title to the act indicates, and the act 
 itself actually embraces, two distinct objects, when the constitution says 
 it shall embrace but one, the whole act must be treated as void, from 
 the manifest impossibility in the court choosing between the two, and 
 holding the act valid as to the one and void as to the other."*^ In Com- 
 monwealth V. Densmore*^ the title of the act under consideration pro- 
 vided for licensing "operators" of automobiles, but the body of the act 
 directed its provisions to "owners." The court, by Presiding Justice 
 Walling, say : 
 
 "As to that the title is misleading, for the act provides 
 neither for licensing the operator or the machine. The owner 
 may be one person and the operator another. The legislature 
 may have intended to license the machine or the operator, but 
 this is a penal statute and must be taken as it is written. There 
 is nothing in the act as to what such license shall contain, and 
 that branch of the statute is so uncertain that we will not sen- 
 tence the defendant on the first count of the indictment." 
 
 In Chittenden v. Columbus (City)*' the objection was raised that the 
 ordinance was invalid on the ground that it contained more than one 
 subject that was not expressed in its title, in that the title declared the 
 ordinance to be one to regulate the speed of vehicles, and the body of 
 
 88Ruggles V. State, 120 Md. SS3, 87 Atl. 1080. 
 
 s'Cooley's Const. Litn., 7th ed., p. 205; Bergman v. St. Louis, I. M. & S. R., 
 88 Mo. 678, I S. W. 384. 
 "Ex parte Henson, 49 Tex. Cr. R. 177, 90 S. W. Repr. 875. 
 *iCooIey's Const, lira., 7th ed., p. 211. 
 *229 Pa. Co. Ct. Reps. 217, 319. 
 «»26 Ohio C. C. 531. 
 
 99 
 
§ J39 
 
 STATUTES AND ORDINANCES 
 
 the ordinance provided for lamps, whistles and other equipment which 
 were new subjects. The court held in this respect, that the subject of 
 lamps and warning signals "is germane to the general object and pur- 
 pose of the ordinance as indicated in its title." 
 
 A motor vehicle statute does not contain more than one subject where 
 It prohibits chauffeurs from accepting gratuities or commissions in the 
 purchase of supplies and also contains certain laws of the road to be 
 observed and regulates speed and fees of motor vehicles. All of these 
 provisions are relevant to the regulation of automobiles." 
 
 Provisions in a motor vehicle act for granting licenses and for dis- 
 posing of the money received are germane to each other and do not 
 render the statute void as containing two subjects. Registration and 
 the payment and disposal of fees are essential elements of a motor ve- 
 hicle act.*° 
 
 A clause in a constitution that appropriations should be made by 
 separate bills applies only to the biennial appropriations made by the 
 legislature out of the general revenues and does not apply to a fund 
 created by the motor vehicle law for a special purpose and dedicated 
 by the act creating it to a particular use.*' 
 
 Where an act is entitled "An act to provide for state license on auto- 
 mobiles" it is not void because it provides also for a fee to cover road 
 maintenance.*^ 
 
 § 139. Construction of Ordinance. — In an inquiry concerning the 
 scope, force and effect of a statute, resort must be had to definitions 
 and appropriate rules of construction. It should be remarked that "the 
 rules for the construction of state statutes usually apply to the construc- 
 tion of ordinances."*' In State v. Kirkley*! Mr. Justice Miller, speaking 
 of the rules of construction in regard to municipal ordinances, says : 
 
 "Resort must be had to the same general rules of construction 
 which govern the interpretation of acts of the legislature ; such 
 rules are equally applicable to the legislative acts of a municipal 
 corporation, passed within the scope of its delegated powers."^" 
 
 <*Ex parte Schuler, 167 Cal. 282, 139 Pac. 685, Ann. Cas. 191 sB, 706. 
 
 *5Coffl. V. Powell, 249 Pa. 144, 94 Atl. 746. 
 
 *8Com. V. Powell, 249 Pa. 144, 94 Atl. 746. ' 
 
 *^State V. Ingalls, 18 New Mexico 211, 135 Pac. 1177. 
 
 *8McQuillin, Mun. Ord., sec. 289. 
 
 *929 Md. 8S, 103. 
 
 BOSee also Zorger v. Greensburgh, 60 Ind. i, 5. ' 
 
 100 
 
1936 
 
 STATUTES AND ORDINANCEs\ <jV,^__^__^^§yf40 
 
 A city ordinance prohibiting reckless driving of animals affdlimiting 
 speed to an ordinary traveling gait does not apply to motor vehicles." 
 
 § 140. Ignorance of the lavs?. — It is a maxim that ignorance of the 
 law excuses no one. (ignorantia legis neminem excusat.) The effect 
 of this maxim, as bearing on the question of negligence, is stated in 
 Nevifcomb v. Boston Prot. Dept.'*^ which was a negligence case growing 
 out of a collision between vehicles on a street in the city of Boston. 
 In the course of his opinion, Mr. Justice Knowlton remarked : 
 
 "In recent times a large number of penal statutes have been 
 enacted, in which the legislature has seen fit to punish acts 
 which are not mala in se, and sometimes when in a given case 
 there is no actual criminal intent. On grounds of public policy, 
 laws have been passed under which a person is bound to know 
 the facts in regard to the subject with which he is dealing, when 
 under possible circumstances ignorance would not be consistent 
 with proper care, * * * ^jj^j if j^ a possible case he trespassed 
 in innocent ignorance, the law gives him no relief. He can 
 only appeal to the sense of justice and the discretion of the 
 public authorities to save him from the punishment which the 
 law would inflict. It is obvious that in suits for negligence, if 
 the contributing conduct of the plaintiff is to be considered as a 
 whole, it may sometimes be found that he has not been guilty 
 of actual negligence or fault, although he has violated the law. 
 One element of his action may be neglect of a duty prescribed 
 by a statute when there are other concurring elements which 
 show that his course was entirely justifiable."'* 
 
 siShawnee v. Landon, 3 Ok. Cr. 440, 106 Pac. 652. 
 52146 Mass. 596, 600, 16 N. E. SSS. 
 
 s^See also Johnson v. City of New York, 186 N. Y. 139, 78 N. E. 715 ; Feeley 
 V. City of Melrose, 205 Mass. 329, 91 N. E. 306. 
 
 lOI 
 
141 
 
 142. 
 
 143 
 144. 
 145 
 146. 
 147 
 148. 
 149. 
 ISO. 
 151 
 152. 
 153. 
 
 CHAPTER VIII. 
 
 SUSPENSION AND REVOCATION OF LICENSES 
 
 General principle. 
 
 Revocation of licenses. 
 
 Suspension and revocation in Massachusetts. 
 
 The rule in other states. 
 
 License not a contract. 
 
 Not a deprivation of property. 
 
 Delegated authority to revoke. 
 
 Right of licensee to rely on his license. 
 
 Meaning of the word "conviction." 
 
 What amounts to a "conviction" to work a forfeiture of license. 
 
 Deprivation of license in addition to punishment. 
 
 Duty of licensing oflScials on convictions. 
 
 Licensee's claim that revocation is unconstitutional. 
 
 § 141. General Principle.— The principle upon which the right to 
 suspend or revoke a license depends is that such a permit is not prop- 
 erty. It is a mere privilege allowed by the state, the exercise of which 
 is determinable at the pleasure of its giver.^ 
 
 Irrespective of statute, the power to revoke carries with it authority 
 to suspend or to attach conditions to the exercise of the privilege, or 
 to make and enforce regulations in regard to the subject-matter of the 
 license. 
 
 As has been pointed out,^ the registration of a motor vehicle is a 
 license f and the certificate is nothing more than a public evidence of 
 the fact of registration. The certificate and registration are to be 
 treated together, because they cannot, for any practical purpose be dis- 
 associated, and both are within the operation of the same principles of 
 law. 
 
 § 142. Revocation of licenses. — A license being "neither a contract 
 nor a right of property within the legal and constitutional meaning 
 
 iSee § 71 et seq.. License. Requiring holder of perpetual license to take out 
 new license, see ante % 93. 
 ^See § 83, Registration is a license. 
 »Com. V. Boyd, 188 Mass. 79, 74 N. E. 255. 
 
 ro2 
 
SUSPENSION AND REVOCATION OF I,ICENSES § I43 
 
 of those terms," is no more than "a temporary permit to do that which 
 would otherwise be unlawful, * * * hence, the authority which 
 granted a license always retains the power to revoke it, either for due 
 cause of forfeiture, or upon a change of policy and legislation" in re- 
 gard to the subject. And such revocation cannot be pronounced un- 
 constitutional, either as an impairment of contract obligations, or as 
 unlawfully divesting persons of their property rights. * * * As a 
 general rule, the jurisdiction for the revocation of a license is vested 
 in the same board, court, or officer who possesses the power to grant 
 licenses."* 
 
 § 143. Suspension and revocation in Massachusetts. — Section 20, 
 chapter 534, Mass. Act of 1909, gives the highway commission power 
 to "suspend or revoke" licenses with or without a hearing, in its dis- 
 cretion "for any cause which it may deem sufficient." The purpose 
 of the legislature in committing this authority to these officials, un- 
 doubtedly grows out of the many possibilities of "operating improperly 
 or so as to endanger the public," often of a character not easily suscepti- 
 ble of legal proof, and frequently impossible to substantiate beyond 
 reasonable doubt in a criminal prosecution. 
 
 § 144. The rule in other states. — The statute provisions in Mass- 
 achusetts are in harmony with the law as applied in other states, and 
 for the same reason. The case of Grand Rapids (City) v. Braudy" 
 was one which involved a licensed business, the nature of which was 
 such as to render it easy to violate the law and difficult to prove the 
 violation. The licensing authority expressly reserved the right to re- 
 voke the license without cause shown. In this case no express power 
 to revoke was conferred by the legislature as in the Massachusetts 
 motor vehicle act. The court say : 
 
 "The necessity of a rigid control over this business in our 
 large cities is clear. Convictions are difficult, though the public 
 authorities may be well convinced" that improprieties are oc- 
 curring. "The business is not necessary to the welfare of so- 
 ciety or the public. * * * While the exercise of any arbitrary 
 power may seem harsh, still we are of the opinion that this re- 
 
 *BIack v. Intox. Liquor, sees. 189, 191 ; Galder v. Kurby, 71 Mass. 597 ; Com. 
 V. Brennan, 103 Mass. 70. 
 
 Bios Mich. 670, 678 (cited with approval in Lowell (City) v. Archambault, 
 189 Mass. 708, 75 N. E. 65). 
 
 103 
 
§ 145 SUSPENSION AND REVOCATION OF LICENSES 
 
 quirement is not so unreasonable as to require the courts to de- 
 clare it void." 
 
 § 145. License not a contract." — In Lantz v. Hightstown^ Mr. 
 Justice Reed says : 
 
 "I am aware that a license is in no sense a contract and con- 
 fers upon the licensee no right which is protected by the organic 
 law. The legislature can pass laws which abrogate the privi- 
 lege so granted or abridge the term for which it is granted. 
 Nevertheless, the license is a privilege for which either a fee or 
 a tax is paid, not in the way of consideration, possibly, but as a 
 condition precedent to the issuance of the evidence of the grant- 
 ing of such license." 
 
 § 146. Not a deprivation of property. — The revocation of a li- 
 cense or of registration is not a deprivation of property. In Common- 
 wealth V. Kingsley* Mr. Justice Field says : 
 
 "A licensee takes his license subject to such conditions as the 
 legislature sees fit to impose, and one of the statutory conditions 
 of this license was that it might be revoked by the selectmen at 
 their pleasure. Such a license is not a contract, and a revoca- 
 tion of it does not deprive the defendant of any property, im- 
 munity or privilege within the meaning of these words in the 
 Declaration of Rights, Art. 12."' 
 
 § 147. Delegated authority to revoke. — In a previous chapter it 
 was seen that the legislature had the power to delegate authority to 
 issue licenses. It follows that it has an equal authority to delegate 
 power to suspend or revoke them, and in fact, to entrust to a represen- 
 tative the authority generally to regulate the conduct of licensees under 
 their licenses.^" 
 
 In Lowell (City) v. Archambault" the point arose under a license 
 granted by the board of health. The court, by Mr. Justice Braley, say : 
 
 "The license granted under the police power of the Common- 
 wealth, as administered through the agency of the board of 
 
 sSee § 142, Revocation of licenses. 
 
 M6 N. J. Law Reps. 102, 107. 
 
 8133 Mass. 578. 
 
 »SpringfieId v. Springfield St. Ry., 182 Mass. 41, 48, 64 N. E. 577- 
 
 loSee § 36 et seq., power to delegate authority. 
 
 "189 Mass. 70, 7S N. E. 65. 
 
 104 
 
SUSPENSION AND REVOCATION OF IvICENSES § I48 
 
 health, did not constitute a contract between him and the city, 
 or confer any vested right of property. Neither did its abroga- 
 tion, if lawful, deprive him of any immunity, or privilege con- 
 ferred by our constitution. * * * Generally under statutes 
 regulating the conduct of certain kinds of employment, or of 
 business, which require the protection of a license before they 
 can be lawfully prosecuted, the penalty of forfeiture is dealt 
 with either by conferring express authority to revoke for viola- 
 tions, upon the Hcensing board or some other tribunal, or else a 
 general power is delegated under which such a clause may be in- 
 serted in the license itself." 
 
 § 148. Right of licensee to rely on his license. — Having properly 
 secured a license, the licensee has a right to presume that he will be 
 protected in the enjoyment of it so long as he complies with the re- 
 quirements of law as to his conduct under that license. In the case of 
 Lowell (City) v. Archambault^^ Mr. Justice Braley says: 
 
 "When this" (the license) "has been obtained he" (the li- 
 censee) "has a right to infer that he can act ^safely with the as- 
 surance that, so long as he complies with the requirements under 
 which it is proposed to grant the privilege, he has a constitu- 
 tional claim to protection until the legislature further restricts 
 or entirely abolishes the right bestowed. * * * It is the leg- 
 islature alone that primarily can impose or give authority to im- 
 pose conditions and exact forfeitures. And the authority of the 
 board as a governmental agent is commensurate with the provi- 
 sions of the statute clothing it with this power.^^ 
 
 In Lantz v. Hightstown" Mr. Justice Reed, speaking of compliance 
 with conditions precedent to the issuance of a license, says : 
 
 "When this act is done and the license is granted to carry on 
 a trade or occupation for a period of time within the power of 
 the appointing body to name, it should not be subjected to the 
 fluctuation of sentiment caused by changing membership in the 
 licensing body, or shifting views upon the questions which have 
 been, or should have been, examined and passed upon." 
 
 § 149. Meaning of the "conviction."" — In Munkley v. Hoyt" the 
 Supreme Court, in defining the word "conviction," quote Mr. Justice 
 
 12189 Mass. 70, 75 N. E. 65. 
 
 ^'Commonwealth v. Beck, 187 Mass. 15, 72 N. E. 357. 
 
 1*46 N. J. Law Reps. (17 Vroom) 102, 107. 
 
 "See also § 486. 
 
 i«i79 Mass. 108, 60 N. E. 413. 
 
 103 
 
§ ISO SUSPENSION AND REVOCATION OE I,ICENSES 
 
 Gray, in Commonwealth v. Lockwood," and say that the word "is used 
 in at least two different senses in our statutes." The case was in the 
 form of an application for a writ of certiorari to correct the proceed- 
 ings of the pharmacy board in revoking petitioner's license after con- 
 viction in the Superior Court on a plea of guilty to a charge of viola- 
 ting of the liquor law. Mr. Justice Hammond says : 
 
 "The_ ordinary legal meaning of 'conviction' * * * jg the 
 confession by the accused in open court, or the verdict returned 
 against him by the jury which ascertains and publishes the fact 
 of his guilt: while 'judgment' or 'sentence' is the appropriate 
 word to denote the action of the court before which the trial is 
 had, declaring the consequences to the convict of the fact thus 
 ascertained. * * * When, however, it 'is used to describe the 
 effect of the guilt of the accused as judicially proved in one case, 
 when pleaded or given in evidence in another, it is sometimes 
 used in a more comprehensive sense, including the judgment of 
 the court upon the verdict or confession of guilt." 
 
 § 150. What amounts to a "conviction" to work a forfeiture of 
 license.^' — The Massachusetts motor vehicle Act of 1909, chapter 534, 
 in a number of its sections, prescribes that "a conviction of a violation" 
 of the particular provision shall be followed by the suspension or revo- 
 cation of the certificate of registration of the owner, or of the license 
 of the operator. The use of the word "conviction" is not new in this 
 relation. What amounts to a "conviction" to work a forfeiture of li- 
 cense has been considered in connection with analogous statutes relat- 
 ing to licenses for the sale of liquor. In the case of Commonwealth v. 
 Kiley" the question was directly before the court. In the opinion, by 
 Mr. Justice Knowlton, it is said : 
 
 "In Commonwealth v. Gorham, 99 Mass. 420, 422, it was said 
 that the term 'conviction' is used in at least two different senses 
 in our statutes. In its most common use it signifi,es the finding 
 of the jury that the prisoner is guilty ; but it is very frequently 
 used as implying a judgment and sentence of the court upon a 
 verdict or confession of guilt. The statutes referred to in that 
 case fully sustain the statement in the opinion." 
 
 I'lop Mass. 323, 325. 
 
 ispor the efSfect of punishment after a plea nolo contendere, see that subject, 
 
 §485. 
 "ISO Mass. 325, 23 N. E. SS- 
 
 106 
 
SUSPENSION AND REVOCATION OF UCENSBS § I5I 
 
 § 151- Deprivation of license in addition to punishment. — Pun- 
 ishment for an offense committed by a licensee is entirely independent 
 of the license. Punishment follows upon the wrong by due process of 
 law. The deprivation of the license proceeds from a violation of the 
 terms upon which it was issued and held. Commonwealth v. Brothers^" 
 was a case involving a liquor license. The question arose whether the 
 forfeiture of the license in addition to other punishment for unlawful 
 sales, was constitutional. The court, by Mr. Justice Allen, say : 
 
 "If a druggist sells intoxicating liquors in violation of his li- 
 cense, it is not unconstitutional to impose upon him a penalty or 
 punishment, in addition to providing by statute that his license 
 shall be void. Commonwealth v. Kingsley, 133 Mass. 578; 
 Commonwealth v. Kiley, 150 Mass. 325." 
 
 § 152. Duty of licensing officials on convictions. — ^When by stat- 
 ute, suspension or revocation of license is made to follow conviction of 
 crime, the record of the conviction is in effect, conclusive evidence of 
 conduct in violation of the terms of the license, behind which, to in- 
 quire into the facts of the misconduct, the licensing official is forbidden 
 to go. In such cases the duty of the officer is declared. His action is 
 wholly ministerial. 
 
 In Munkley v. Hoyt^^ Mr. Justice Hammond, speaking upon the 
 effect of a criminal conviction as distinguished from the effect of evi- 
 dence produced before the license board upon an investigation of their 
 own, remarks: 
 
 "If the board find the accused guilty, the only penalty they 
 can impose is the suspension or revocation of the license or 
 certificate. If the offense is a crime, they must see whether he 
 has been convicted by a court of competent jurisdiction. * * * 
 It is the intention of the statute to give a pharmacist charged 
 with a crime the right to a trial in the court having jurisdiction 
 of his offense, but if his guilt be there established so that the 
 court may impose sentence according to its powers, then it is 
 sufficiently established for the board of pharmacy to act upon 
 their finding, and to impose the penalty according to their powers. 
 The question whether the convicted pharmacist shall suffer the 
 penalty which it is within the province of the trial court to im- 
 
 2»is8 Mass. 200, 206, 33 N. E. 386. 
 21179 Mass. 108, III, 60 N. E. 413. 
 
 107 
 
§ 153 SUSPENSION AND EIJVOCATION 01^ LICENSES 
 
 pose is an entirely different question from that before the board 
 of pharmacy." 
 
 "The Massachusetts Statute of 1887, c. 392, provides that 'the 
 conviction by a court of competent jurisdiction of a person li- 
 censed under the provision of chapter one hundred of the Public 
 Statutes, for the violation of any of the provisions of said chap- 
 ter, and the several acts in amendment thereof, shall of itself 
 make the license of said person void.' Under this provision, the 
 effect of a conviction of the kind named is to deprive the defend- 
 ant of a valuable right, without an opportunity for further trial 
 or investigation. We are of opinion that nothing less than a 
 final judgment, conclusively establishing guilt, will satisfy the 
 meaning of the word 'conviction' as here used. At any time 
 before a final judgment of the court, a motion in arrest of judg- 
 ment may be made, or the verdict be set aside upon a motion for 
 a new trial, on the ground of newly discovered evidence, or for 
 other good cause, and upon further proceedings, it may turn out 
 that the defendant is not guilty." 
 
 § 153. Licensee's claim that revocation is unconstitutional. — 
 Where it is sought to revoke a license, and the licensee claims that the 
 provision of the statute authorizing the revocation is unconstitutional, 
 and at the same time contends that the act is constitutional as to the 
 issuance of the license, he will not be heard upon the question of con- 
 stitutionality, for the reason that if the act under which the licensee 
 "procured his license was unconstitutional and void, then Ke in fact, 
 never held a valid license nor any vested right thereto ;" and when the 
 commissioner revoked the license, the licensee was deprived of no 
 vested right by that act of the commissioner. Mr. Justice Woodson 
 remarks, in State v. Turner,^^ referring to the licensee: 
 
 "He will not be heard to claim that the act was valid and suffi- 
 cient to vest in him the license and the right to conduct a dram- 
 shop, and in the same breath contend that the act is invalid when 
 it is sought to deprive him of that license and those rights which 
 he has forfeited by violating the provision of the same act. ne 
 cannot thus affirm and disaffirm the validity of the same act. 
 
 22210 Mo. 77, 8S, 107 S. W. 1064. 
 
 108 
 
CHAPTER IX. 
 
 MUNICIPAL POWERS* 
 
 154. Creation and control of municipal corporations. 
 
 155. Constitutional limitations of legislative power. 
 
 156. Municipal powers described. 
 
 157. Police power of cities and towns. 
 
 158. Extent of municipal jurisdiction. 
 
 159. Suburban residents and non-residents. 
 
 160. "One-way" streets. 
 
 161. Power to delegate authority. 
 
 162. Municipal power to regulate by license. 
 
 163. Traffic regulations. 
 
 164. Implied power of municipalities to control traffic. 
 
 165. Municipal regulation of speed and use in Massachusetts. 
 
 166. Power of municipalities to regulate use. 
 
 167. Power to prohibit use. 
 
 168. Power of municipalities to regulate speed. 
 
 169. Power of municipalities to require use of number plates. 
 
 170. Power of municipalities to regulate motor vehicles for hire. 
 
 171. Regulating competency of operators. 
 
 172. Municipal taxation. 
 
 173. Power to tax. 
 
 174. Power to regulate does not imply power to license for revenue. 
 
 175. Municipal power to license is usually conferred by the legislature. 
 
 176. License tax. 
 
 177. Double taxation in this connection. 
 
 178. Ordinances. 
 
 179. Requisites of a valid ordinance. 
 
 180. What is meant by "reasonable.'' 
 
 181. "By-law" defined. 
 
 182. "Regulation" defined. 
 
 183. Judicial notice of ordinances and how pleaded. 
 
 184. Ordinances and regulations — how pleaded. 
 
 185. Ordinances — how proved. 
 
 186. Competency of an ordinance in a negligence case. 
 
 187. Signs. 
 
 188. Power of public officers to purchase or hire automobiles. 
 
 ♦Power to pass anti-smoke rules, see post § 239. 
 
 109 
 
§ 154 MUNICIPAI, POWERS 
 
 § 154- Creation and control of municipal corporations. — "The 
 proposition which lies at the foundation of the law of corporations of 
 this country," says Judge Dillion^ "is that here all corporations, public 
 and private, exist and can exist only by virtue of express legislative 
 enactment, creating or authorizing the creation or existence of the cor- 
 porate body. Legislative sanction is with us absolutely essential to 
 lawful corporate existence. The public welfare is the ground of this 
 doctrine." And the same author, at sec. 54, has this to say concerning 
 "public corporations," to which class belong cities and towns : 
 
 "They are called into being at the pleasure of the State. 
 * * * The charter or incorporating act is in no sense a con- 
 tract between the State and the corporation. * * * Subject to 
 constitutional limitations * * * the power of the legislature 
 over such corporations is supreme and transcendent: it may, 
 where there is no constitutional inhibition, erect, change, divide, 
 and even abolish them, at pleasure, as it deems the public good 
 to require." 
 
 § 155. Constitutional limitations of legislative power. — In some 
 states constitutional provisions concerning municipalities control the 
 legislative power. In such states the powers exercised by corporations 
 of this character, are to be traced to the instrument from which they 
 directly emanate. The constitution of California^ is an illustration. 
 It provides that ail cities, towns and charters thereof, framed or adopted 
 by authority of the constitution, are subject to and controlled by general 
 laws, "except in municipal affairs." In such a case the power exer- 
 cised by the city for such "affairs" cannot be withdrawn or abrogated 
 or impaired by any action of the legislature.* 
 
 § 156. Municipal powers described. — In 1 Dillon's Mun. Corp.* it 
 is said : 
 
 "It is a general and undisputed proposition of law that a 
 municipal corporation possesses and can exercise the following 
 powers, and no others: First, those granted in express words;^ 
 
 iQn Municipal Corporations, 4th ed., sec. Z7- 
 
 2Sec. 6, Art. XL 
 
 8Ex parte Braun, 141 Cal. 204, 72 Pac. 780. 
 
 *4th ed., sec. 89. 
 
 "Italics by Judge Dillon. 
 
 I to 
 
MUNICIPAL POWERS § 157 
 
 second, those necessarily or fairly implied in or incident to the 
 powers expressly granted; third, those essential to the declared 
 objects -and purposes of the corporation — not simply convenient, 
 but indispensible. Any fair reasonable doubt concerning the 
 existence of power is resolved by the courts against the corpora- 
 tion, and the power is denied."" 
 
 In Smith v. McDowell' the court say : 
 
 "These rnunicipal corporations are instrumentalities of the 
 State, exercising such powers as are conferred upon them in the 
 government of the municipality. Their power is measured by 
 the legislative grant, and they can exercise such powers, only, as 
 are expressly granted or are necessarily implied from the powers 
 expressly conferred. The legislature, representing the great 
 body of the people of the State, when no private right is invaded 
 or trust violated (City of Jacksonville v. Jacksonville Railway 
 Co., 67 111. 540), may repeal the law creating them, or exercise 
 such control in respect of the streets, alleys and public grounds 
 within the municipalities of the State as it shall deem for the in- 
 terest of the people of the State." 
 
 In Thomas v. Railroad Co.* Mr. Justice Miller, speaking for the Su- 
 preme Court of the United States, says : 
 
 "We take the general doctrine to be in this country, though 
 there may be exceptional cases and some authorities to the con- 
 trary, that the powers of corporations organized under legisla- 
 tive statutes are such and such only as those statutes confer. 
 Conceding the rule applicable to all statutes, that what is fairly 
 implied is as much granted as what is expressed, it remains that 
 the charter of a corporation is the measure of its powers, and 
 that the enumeration of these powers implies the exclusion of all 
 others." 
 
 § 157. Police power of cities and towns.® — ^The police power ex- 
 tends in municipalities to the limit conferred upon them by charter or 
 
 *St. Louis V. Kaime, 189 Mo. 309, 322, 79 S. W. 140; Bogue v. Bennett, 156 Ind. 
 478, 60 N. E. 143; Fonsler v. Atlantic City, 70 N. J. Law 125, $6 Atl. 119; 
 Chicago V. Banker, 112 111. App. 94; Brazier v. Philadelphia, 215 Pa. St. 297, 64 
 Atl. S08; People ex rel. Hainer v. Keeper of Prison, 190 N. Y. 315, 83 N. E. 44; 
 State V. Thurston, 28 R. L 265, 66 Atl. 580. 
 
 ■^148 III. SI, 62, 35 N. E. 141. 
 
 8101 U. S. 71, 82. 
 
 'See police power, chapters III and IV. 
 
 Ill 
 
§ IS8 MUNICIPAL, POWERS 
 
 legislative acts, and the general policy of the state with respect thereto." 
 Thus a resolution of the aldermen of the city of New York was held 
 invalid because it operated, among other things, as a special speed 
 regulation, and the state law conferred power on municipal authorities 
 to adopt general ordinances only." In People,.ex rel., Hainer v. Prison 
 Keeper" the court construed the city ordinance relating to the speed of 
 motor vehicles in its effect under the state statute fixing a different 
 speed, and hold that upon principles of law, the ordinance, in the 
 absence of express statute, cannot become a substitute for the general 
 state law. In State v. Thurston^* a city ordinance was held invalid 
 on the ground that it conflicted with the state statute. The facts were 
 that municipal governments in the state had authority to make regula- 
 tions concerning riding or driving in the streets of their respective 
 locaUties. This power was limited by a general law prohibiting them 
 from passing ordinances imposing a penalty for the commission of an 
 act punishable by "the statute law of the state," which latter made it 
 penal to drive "in the compact part of any town or village" at a rate of 
 speed greater than in the act prescribed. The city had established by 
 the ordinance in question, a different rate of speed from that specified 
 in the statute and had prescribed penalties for its violation. Under the 
 circumstances, the court held that the statute and the ordinance were in 
 conflict. 
 
 § 158. Extent of municipal jurisdiction. — ^Within its borders a mu- 
 nicipality may control the use of its streets and ways, subject to the 
 limitations of its charter and the provisions of general laws. Com. v. 
 Stodder^* was a prosecution brought in 1848, wherein it was charged 
 that the defendant drove an omnibus in the city of Boston without a 
 license from the mayor or aldermen so to do. The defendant con- 
 tended that the municipal authorities had no power to require a license. 
 The opinion is long and covers a number of questions of interest in this 
 
 lOMcQuillin Mun. Ord., sees. 432, 433 ; Slade v. City of Chicago, i III. Cir. Ct. 
 Reps. 520. 
 
 "Johnson v. City of New York, 186 N. Y. 139, 78 N. E. 715 ; People v. Ellis, 
 88 N. Y. App. Div. 471, 85 N. Y. S. 120; State v. Thurston, 28 R. I. 265, 66 Atl. 580. 
 
 "190 N. Y. 31S, 83 N. E. 44- 
 
 «28 R. I. 26s, 66 Atl. 580. 
 
 1*56 Mass. 563, 570. 
 
 112 
 
MUNICIPAI, POWERS § 159 
 
 connection. The following observations of Mr. Justice Dewey, are 
 perhaps the most germane : 
 
 "Regulations of this nature are regulations as to the use of 
 omnibuses and stage coaches, while passing over the public 
 streets of the city, and are within the legitimate powers of the 
 mayor and aldermen. The public safety and convenience of 
 travelers may require regulations of this character. If new 
 and unusual modes of transporting persons over the public 
 streets are introduced, which, from the methods made use of 
 ■ for propelling the carriage, or the size of the vehicle, or the 
 number of horses attached thereto, will obviously endanger the 
 public safety, or so engross the whole width of the street as 
 virtually to exclude all other vehicles, or greatly to obstruct 
 them in their passage thereon, it would certainly be reasonable 
 and proper and within the legitimate powers of the mayor and 
 aldermen, under the statute already cited, and the powers con- 
 ferred by the city charter, to regulate the route of the streets 
 over which such carriages were to run, and the rate of speed, 
 and to interdict the stopping in the public streets unnecessarily, 
 to the great hinderance and delay of those in the rear traveling 
 on the same route. * * * 
 
 "We cannot doubt that a by-law, reasonably regulating the 
 use of the public streets of the city as to carriages of an un- 
 usually large size, or as to those which from the mode of using 
 them would greatly incommode, if not endanger, those having 
 occasion to use such public streets, would be valid and legal; 
 and that such regulations might prescribe certain streets as the 
 route of travel for such vehicles,and provide for their exclusion 
 from certain other streets." 
 
 § 159. Suburban residents and non-residents. — In the case just 
 quoted the defendant was a suburban resident. As to such persons 
 in the absence of statutory authority, the court held that the city had 
 no power to exact a license fee. A similar case has been similarly de- 
 cided in Ohio.^^ 
 
 Non-residents cannot be compelled to pay for a license to use the 
 streets for business or pleasure. Such a limitation has been found un- 
 reasonable and void.^' 
 
 "Pegg V. City of Columbus, 80 Ohio St. 367, 89 N. E. 14. 
 "Pegg V. Columbus, 80 Ohio St., 367, 89 N. E. 14. As to powei over non- 
 residents see further post § 189 et seq. 
 
 8 "' 
 
§ l6o MUNICIPAI< POWERS 
 
 § i6o. "One-way" streets. — The observation of Judge Dewey, in 
 the closing sentences of the excerpt from the opinion in Com. v. Stod- 
 der" points to the principle upon which authority is derived to direct 
 the course of traffic in certain streets where, by reason of width or 
 some other circumstance, it is needful for special regulations to exist 
 to facilitate the movement of traffic. Thus in the traffic regulations of 
 the city of Boston it is provided : 
 
 "Article 8, Sec. i. Between the hours of seven o'clock A. M. 
 and six o'clock P. M., vehicles shall pass in but one direction in 
 the following-named streets," etc. 
 
 Upon the same principle rests the regulation concerning standing ve- 
 hicles, and in fact, all other city traffic rules.^* 
 
 § i6i. Power to delegate authority. — "Under most charters, the 
 power must be exercised exclusively by the legislative authority" of 
 the municipality "and cannot be delegated, in whole or in part, to any 
 other person or authority whatever. The ordinance should provide all 
 of the terms under which the license is to be issued and prescribe a uni- 
 form rule applicable to all of the class to which it is intended to apply, 
 without discrimination or delegation of power to the officer or board 
 empowered to receive and pass upon the application which will permit 
 unreasonable discrimination."^" 
 
 In a recent case the Supreme Court of Massachusetts has passed 
 upon this point. In Commonwealth v. Maletsky-" the city authorities 
 of Chelsea had, by ordinance unreservedly delegated to the chief of the 
 fire department discretionary authority to issue permits for picking, 
 sorting and storing rags. In rejecting the ordinance the court, by Mr. 
 Justice Sheldon, say : 
 
 "The effect of this requirement is to leave it wholly to the 
 will of that officer whether or not any person shall be permitted 
 to engage in this business. No rules are provided for the exer- 
 cise of iais judgment ; there is no appeal from his determination 
 to the city council or the board of control, — ^the department of 
 
 1756 Mass. 563, 570- 
 "See §§ 270-274. 
 
 i^McQuillin Muii. Ord., sec. 414. See the opinion of Mr. Justice Olds, in Bills 
 V. City of Goshen, 117 Ind. 221, 226, 20 N. E. 115. 
 20203 Mass. 241, 89 N. E. 241. 
 
 114 
 
MUNICIPAI, POWERS § 162 
 
 the city government which was entrusted by the legislature with 
 the exercise of this power. * * * There is nothing to guide 
 him in passing upon the applications that may be made to him. 
 
 * * * It is left entirely to his untrammelled discretion whether 
 the business * * * shall be carried on at all in Chelsea. 
 
 * * * It has been held that when such unlimited power has 
 been granted by the legislature to certain designated municipal 
 boards or officers, an ordinance by which they undertake to dele- 
 gate this power absolutely to a subordinate officer will be merely 
 void."" 
 
 § 162. Municipal power to regulate by license. — ^Where, by act of 
 the legislature, power is conferred upon a city or town to regulate a 
 business or occupation, and not as a means of producing a revenue, 
 such measure will be upheld by the courts, when plainly intended as 
 a police regulation, and the revenue derived therefrom is not dispro- 
 portioned to the cost of issuing the license and the regulation of the 
 business to which it applies. And where such regulation is within the 
 power of the city authorities, it will be presumed to be reasonable unless 
 "from the inherent character thereof or from proof adduced, it is shown 
 to be in fact unreasonable."^* 
 
 § 163. Traffic Regulations. — The dangers and needs of traffic are 
 often so peculiar in our large cities that the courts have generally sus- 
 tained local traffic regulations, although there is a state "law of the 
 road."^* 
 
 In such class are regulations as to driving to the right of the centre 
 of the street and as to passing obstructions.^* 
 
 An ordinance excluding vehicles from the left hand side of a street 
 and requiring one leaving a vehicle standing to place it on the right 
 hand side thereof is not inconsistent with a general motor vehicle law 
 regulating the speed and use of the street by motor vehicles although 
 the ordinance applies to motor vehicles.^^ 
 
 2iSee also "Automobile Licenses/' 35 Pa. Co. Ct. Reps. 512, 1908 (No. SiagA). 
 
 22Uttlefield V. The State, 42 Neb. 223, 228, 60 N. W. 724; Buffalo (City) v. 
 Lewis, 192 N. Y. 193, 84 N. E. 809. 
 
 23Com. V. Newhall, 205 Mass. 344, 91 N. E. 206, vehicle standing over 20 min- 
 utes. 
 
 2*State V. Larrabee, 104 Minn. 37, 115 N. W. 948. 
 
 25Beck V. Cox, (W. Va. 1915), 87 S. E. 492. 
 
 "5 
 
§ l64 MUNICIPAI, POWERS 
 
 So a city ordinance requiring a vehicle in passing another to keep to 
 the left and to pass only when there is a clear way of at least one hun- 
 dred feet in advance to the left is not repealed by the Massachusetts 
 Motor Vehicle Law.^" 
 
 A city may make reasonable regulations not inconsistent with state 
 law and may prescribe how vehicles shall turn down a cross street." 
 
 § 164. Implied power of municipalities to control traffic. — No in- 
 cidental powers can be implied in favor of municipal corporations, "ex- 
 cept such as are essential to the accomplishment of the purposes of 
 their creation, and for their continued existence." Thus, a statute 
 giving to a city power to regulate motor vehicle operation, and no- 
 where conferring the power to prohibit the running of such vehicles 
 on streets and alleys, does not fairly imply the power to exclude, be- 
 cause the latter power is not "essential to the accomplishment of the 
 purpose" for which such municipal corporation was created, nor for its 
 "continued existence." A general grant of authority over the streets, 
 does not give power to prohibit any new method of locomotion, merely 
 because such method may tend to the inconvenience or even injury of 
 those using former methods. The power in this respect lies with the 
 legislature, and while municipalities have such authority as the legisla- 
 ture confers upon them, to regulate traffic, the exercise of authority 
 beyond that delegated to prohibit vehicles "not propelled by animals 
 power, from using the streets, is beyond the scope of municipal au- 
 thority." The power of cities in cases of street railways depends upon 
 another principle.^* 
 
 A "municipality, in respect of its streets, is a trustee for the general 
 public, and holds them for the use to which they are dedicated. The 
 fundamental idea of a street is not only that it is public, but that it is 
 public in all its parts for free and unobstructed passage thereon by all 
 persons desiring to use it."^^ In Radnor Township v. Bell'" it is said: 
 
 "The municipality is in a sense a trustee for the general public, 
 and holds the highways for the use to which they have been 
 dedicated." 
 
 zsCoin. V. Gile, 217 Mass. 18, 104 N. E. 572, affirming Com. v. Newhall, 205 
 Mass. 344. 91 N. E. 206. 
 
 is^Ishkosh V. Campbell, 151 Wis. 567, 139 N. W. 316. 
 
 28Bogue V. Bennett, 156 Ind. 478, 60 N. E. 143 ; Slade v. City of Chicago, i 111. 
 Cir. Ct. Reps. 520. 
 
 29Smith V. McDowell, 148 111. Si. 63, 35 N. E. 141. 
 
 8027 Pa. Super. Ct. Reps, i, S- 
 
 116 
 
MUNICIPAL POWERS § 165 
 
 § 165. Municipal regulation of speed and use in Massachusetts. — 
 
 In Massachusetts the general statute provides that cities, by ordi- 
 nance,''' and towns, by by-laws,^^ may regulate the speed of vehicles 
 upon the streets therein, consistently "with public safety or conve- 
 nience," and may impose a penalty for the violation of such ordinance 
 or by-law.^' 
 
 By the Act of 1909, chapter 534, section 17, relative to motor ve- 
 hicles, cities and towns, and boards of park commissioners generally, 
 are authorized to make special regulations with regard to the speed 
 and use of such vehicles upon particular ways, and may exclude them 
 altogether from certain ways, provided that prescribed formalities are 
 complied with, and the highway commission have certified that the spe- 
 cial regulations in question, are "consistent with the public interests." 
 
 While the act (sec. 31), does not in express terms repeal the sections 
 of the revised laws above referred to, yet it does in general, repeal all 
 acts inconsistent therewith. Besides, "the new law is evidently intended 
 to supersede all prior acts on the matter in hand and to comprise in it- 
 self the sole and complete system of legislation on that subject," and 
 therefore, as we have seen, would work a repeal by implication.^* 
 
 Of course, the Act of 1909 has no influence or effect upon the Re- 
 vised Laws, except in so far as the latter might relate to motor vehicle 
 use and operation if the Act of 1909 did not exist. Nor has it any effect 
 upon city traffic regulations not inconsistent with that law.^^ 
 
 § 166. Power of Municipalities to regulate use. — Municipalities 
 may generally regulate the use of their streets.^" 
 
 In addition to the foregoing, the motor vehicle cases cited will 
 throw light on features connected with this subject,'^ unless the power 
 is withdrawn by the legislature.^* 
 
 ^^See § 178, for definition of "ordinance." 
 
 82See § 181, for definition of "by-law." 
 
 2'Rev. Laws, chap. 52, sees. 6, 7, 8. 
 
 2*See § 136, Implied repeal, chapter on Construction of Laws. 
 
 35Black Int. of Laws, sec. 53, Com. v. Newhall, 20s Mass. 344, 91 N. E. 206. 
 See Appendix C. 
 
 ^"Everart v. Fischer, 75 Oregon 316, 145 Pac. 33. 
 
 s^Chicago v. Banker, 112 111. App. 94; People v. Schneider, 139 Mich. 673, 677, 
 103 N. W. 172; Com. V. Hawkins, 14 Pa. Dist. Ct. R'eps. 592; Bellingham (City) 
 V. Cissna, 44 Wash. 397, 87 Pac. 481 ; Eichman v. Buchheit, 128 Wis. 385, 107 
 N. W. 32s; State v. Larrabee, 104 Minn. 37, 115 N. W. 948. 
 
 ^'Newport v. Merkel Bros. Co., 156 Ky. 580, i6t S. W. 549. 
 
 "7 
 
§ 167 MUNICIPAl, POWERS 
 
 The right of regulation may be preserved to the cities and towns by 
 the state constitution in which case a statute purporting to withdraw it 
 is of no effect.^" So under a constitution denying the power to the leg- 
 islature to alter or amend a city charter a general motor vehicle law can- 
 not alter or affect municipal ordinances passed under authority of a 
 city charter.*" 
 
 City ordinances may require city licenses as a protection to the pub- 
 lic,*^ but not where the city is given no authority to license vehicles*" 
 or where by law the power is vested in state authority and local licenses 
 are forbidden,*^ but a state law requiring state licenses may not of 
 itself prohibit local licenses.** Cities may when empowered to regulate 
 and license "every description of carriage" require a license for the 
 operation of motor vehicles.*" 
 
 Where state law allows traction engines to cross bridges without 
 using planks under the wheels this prevents a city by ordinance from 
 requiring it although the city has full power over its streets as this is 
 opposed to the state law.*' 
 
 The Illinois Motor Vehicle act vesting in the state full authority over 
 the use and speed of motor vehicles does not prevent a municipality 
 from forbidding the escape of noxious smoke or gas or other offensive 
 odors or to discharge any embers oil or residue or to have any exhaust 
 pipe not parallel with the ground.*' 
 
 § 167. Power to Prohibit Use. — An ordinance prohibiting abso- 
 lutely the use of automobiles in Bar Harbor, Maine, where the roads 
 are narrow and dangerous, has been sustained,** but it is the better 
 view that the municipal power to regulate streets does not confer the 
 power to prohibit new methods of locomotion as by traction engines.*^ 
 
 39People V. McGram, 184 Mich. 233, iSo N. W. 836. 
 «Kalich V. Knapp, n Ore. SS8, 142 Pac. .594, I4S Pac. 22. 
 ^iPeople v. Schneider, 139 Mich. 673, 103 N. W. 172. 
 *2Chicago V. Banker, 112 111. App. 94- 
 
 43Buffalo V. Lewis, 192 N. Y. 193, 84 N. E. 809; Barrett v. New York, 
 Cir. Ct. 191 1, 189 Fed. 268. 
 "Brazier v. Philadelphia, 215 Pa. St. 297, 64 Atl. 508. 
 «Com. V. Hawkins, 14 Pa. Dist. Rep. S92. 
 48Hendrick v. Lane Iowa 191S, 152 N. W. 610. 
 4'Chicago V. Shaw Livery Co., 258 111. 409, loi N. E s88. 
 estate V. Mayo, 106 Me. 62, 7S Atl. 29S. 
 *9See fost § 273, Bogue v. Bennett, 156 Ind. 478, 60 N. E. I43- 
 
 118 
 
MUNICIPAI, POWERS § 1 68 
 
 So where the state law provides a state Hcense for use of automobiles 
 on all the roads of the state cities have no right to prohibit such use.^" 
 
 But cities may prohibit the use of motor vehicles on their streets at 
 reasonable times and an ordinance forbidding their use between sunset 
 and sunrise has been sustained as being reasonable.'^ This decision was 
 however rendered when automobiles first came into general use and 
 would hardly be followed to-day. 
 
 A statute authorizing a city to prohibit the use of motor vehicles in 
 certain streets is valid."^ 
 
 § i68. Power of Municipalities to Regulate Speed. — Municipali- 
 ties have in general authority to regulate the speed of vehicles within 
 their limits by reasonable regulations.'^ 
 
 They may still retain this right over motor vehicles notwithstanding 
 the existence of state legislation on the subject where the local regula- 
 tions are not inconsistent with the state law.'* 
 
 In a recent Pennsylvania case the court remarks : 
 
 "In the absence of any prohibition against local legislation, 
 it would rather seem to us that the legislature intended that the 
 local authorities having jurisdiction over such a class of sub- 
 jects, and having special knowledge of the conditions of their 
 own localities, might, by ordinance, determine what should be 
 a reasonable rate of speed. This we believe to be a permissible 
 construction of the statute before us ,and we believe that such 
 a construction will best promote the interests of the various 
 communities of the Commonwealth composed of people living 
 in closely built towns and cities, and that no unreasonable re- 
 strictions are thereby placed upon people who desire to make use 
 of the modern horseless vehicles, with due regard to the rights 
 of others."" 
 
 A municipal ordinance limiting automobile speed to ten miles an 
 hour is not in conflict with a state statute limiting them to eight miles 
 
 soWalker v. Com., 40 Pa. Super. Ct. 638. 
 
 siEx parte Berry, 147 Cal. 523, 82 Pac. 44. 
 
 ^^People ex rel. Cavanagh v. Waldo, 131 N. Y. S. 307, 72 Misc. 416. 
 
 e^Chittenden v. Columbus, 26 Ohio C. C. 531 ; Eichman v. Buchheit, 128 Wis. 
 38s, 107 N. W. 325. 
 
 °*Ex parte Snowden, 12 Cal. App. 521, 107 Pac. 724; Radnor Township v. Bell, 
 27 Pa. Super. Ct. i, 7. 
 
 ssBrazier v. Philadelphia, 215 Pa. St. 297, 303, 64 Atl. 508. 
 
 119 
 
§ 169 • MUNICIPAI, POWERS 
 
 an hour. This merely lays down the city's policy towards prosecu- 
 tion.^" But where the state law permitted municipalities to pass ordi- 
 nances regulating the speed of automobiles not conflicting with the state 
 law an ordinance allowing a higher rate of speed than permitted by 
 state law is void and the state law will govern." 
 
 A special provision of state law may permit local regulations.^' But 
 generally a uniform state law regulating speed supersedes local regu- 
 lations.'^ The California Motor Vehicle Act of 1913 supersedes all city 
 ordinances inconsistent with it. So an ordinance imposing a uniform 
 minimum speed through the city of twelve miles an hour is superseded 
 by the state law which allows diflferent speeds in different circum- 
 stances."" 
 
 In Chittenden v. Columbus (City)" it was contended that the ordi- 
 nance was void for uncertainty, because different rates of speed were 
 fixed for different parts of the city. The court held that it was within 
 the province of the city authorities to fix different rates of speed in 
 different districts "according to the width of the streets, their use and 
 the density of population." In the same case it was also contended that 
 the ordinance in question was void on the ground of uncertainty, be- 
 cause the boundaries therein fixed did not actually meet, and among 
 other things, because it purported "to include territory which was not 
 within the city limits." The court held that the inclusion of territory 
 outside the city limits did not invalidate the operation of the ordinance 
 within those limits, and the fact that the boundaries did not meet would 
 not of necessity render it void. 
 
 § 169. Power of Municipalities to require use of Number Plates. 
 — Where cities have the power to regulate the manner in which their 
 highways shall be used this may authorize them to require the display 
 
 B6Adler v. Martin, 179 Ala. 97, §9 So. 597- 
 
 B^Carter v. State, 12 Ga. App. 430, 78 S. E. 205. 
 
 ssPeople V. Bell, 148 N. Y. S. 7S3; People v. Untermyer, 153 App. Div. 176, 
 138 N. Y. S. 334; Bellingham v. Cissna, 44 Wash. 397, 87 Pac. 481. 
 
 soPeople V. Hayes, 66 Misc. 606, 124 N. Y. S. 417; People v. Chapman, 88 
 Misc. 469, 152 N. Y. S. 204; State v. Thurston, 28 R. I. 265, 66 Atl. 580. 
 
 eoEx parte Smith, 26 Cal. 116, 146 Pac. 82. 
 
 6I26 Ohio C. C. 531- 
 
 120 
 
MUNICIPAI, POWERS § 170 
 
 of a city license tag,'^ and a state law requiring only one license number 
 has been held not to prohibit cities from requiring a license tag."^ 
 
 The better view however seems to be expressed in a recent Missouri 
 case, that where a state law requires the display by motor vehicles of 
 identification numbers a city ordinance requiring further numbers is 
 void. One of the chief purposes of the state law was to render easy 
 the identification of swiftly moving vehicles and the addition of other 
 city numbers would tend to confuse the eye and hinder the purpose of 
 the state law. The fact that municipalities are authorized to exact a li- 
 cense tax does not alter the situation. The city authorities can use the 
 state numbers in enforcing such a license tax with little additional in- 
 convenience.'* 
 
 The Illinois Motor Vehicle Law of 191 1 provides that the automobile 
 owner shall not be required to display any other number than that is- 
 sued by the Secretary of State, and this renders void a city ordinance 
 requiring a city number. The court does not pass on the question 
 whether the use of city numbers could not be enforced as a means of 
 collecting a revenue tax."' 
 
 § 170. Povyer of Municipalities to Regulate Motor Vehicles for 
 Hire.* — Public motor vehicles used for hire are generally held to be in 
 a class by themselves and a general state motor vehicle law will not pre- 
 vent the imposition of local regulations regarding them. Even a state 
 law forbidding municipalities from requiring any license for the opera- 
 tion of motor vehicles does not prevent them from requiring a license 
 for the operation of such vehicles for hire."" So cities can impose a li- 
 cense tax on cars operated on streets carrying passengers for hire al- 
 though the state law forbids a license tax or permit to operate motor 
 vehicles on public highways."^ An automobile law providing for reg- 
 istration and operation of motor vehicles does not repeal a city ordi- 
 nance regulating "vehicles" carrying persons for hire.*'" A statute 
 
 62People V. Schneider, 139 Mich. 673, 675, 103 N. W. 172; Slade v. Chicago, i 
 111. Cir. Ct. Rep. 520. 
 esBrazier v. Philadelphia, 215 Pa. St. 297, 64 Atl. 508. 
 8*St. Louis V. Williams, 235 Mo. 503, 139 S. W. 340. 
 o'Chicagro V. Francis, 262 111. 331, 104 N. E. 662. 
 *As to jitneys see post § 1244 et seq. 
 
 esMorristown-Madison Auto Bus Co. v. Madison, 85 N. J. L. 59, 88 Atl. 829. 
 "Applewold V. Dosch, 239 Pa. 479, 86 Atl. 1070, Ann. Co. 1914D, 481. 
 sTaState V. Dunklee, 76 N. H. 439, 84 Atl. 40, Ann. Cas. 1913B, 754. 
 
 121 
 
§ 171 MUNICIPAL POWERS 
 
 giving cities authority to regulate and license the use of the streets by 
 persons who use vehicles or solicit or transact business thereon author- 
 izes the imposition of a license on the use of automobiles whether for 
 hire or not."' 
 
 The power of a municipality to regulate the use of motor vehicles in 
 its jurisdiction for hire is limited to vehicles operating within the city 
 limits, and does not cover a line of vehicles from one city to another."' 
 
 In Fonsler v. Atlantic City'" the court held that it was a reasonable 
 exercise of municipal authority to require the driver of an omnibus in a 
 public street, to carry all persons who should apply to him for passage 
 and who tendered the legal fare. Nor was it unreasonable to require, 
 for the general convenience, that such driver, when engaged, should 
 display a sign containing the words "engaged" or something to that 
 effect. 
 
 § 171. Regulating Competency of Operators. — State laws now 
 commonly vest sole authority over the competency of operators in state 
 authorities but in the absence of direct prohibition it has been held that 
 cities may require a municipal operator's license although the state law 
 requires a state license. The soundness of this desicion may well be 
 questioned. Power granted to a city to regulate the use of its streets 
 and to pass and enforce necessary police ordinances empowers it to 
 pass an ordinance requiring all drivers of motor vehicles to obtain a 
 license from the city after examination as to his competency although 
 the driver already has a license from the state.'^^ 
 
 The fact that a city has a right to regulate the use of automobiles 
 gives it no right to prohibit the issue of licenses to drive to those under 
 sixteen years of age. The power is one of regulation, not of prohi- 
 bition.'^ 
 
 Although a city had the right to pass reasonable regulations a prohi- 
 bition on the driving of automobiles by persons under 18 years of age 
 
 «8Mobile V. Gentry, 170 Ala. 2134, S4 So. 488. 
 
 B»Morristown-Madison Auto Bus Co. v. Madison, 85 N. J. h. ^9, 88 Atl. 829. 
 
 "70 N. J. Law, 125, s6 Atl. 119. 
 
 '^Chicago V. Kluever, 257 111. 317, 100 N. E. 917- 
 
 "Ex parte Jefferson, 61 Tex. Civ. App. 237, 134 S. W. 685, 37 h. R- A. N. & 
 
 303. 
 
 122 
 
MUNICIPAL POWERS § 172 
 
 anywhere within the city limits is void as applying to private property 
 as well as to streets and highways." 
 
 § 172. Municipal taxation. — In all cases of municipal taxation the 
 authority of the corporation "is limited to taxation for municipal or 
 corporate purposes." "Without authority conferred by law, a municipal 
 corporation possesses no power to levy taxes for any purpose." "The 
 method of levying taxes is controlled by the municipal charter and local 
 laws applicable. The levy of taxes is usually discretionary with the 
 municipal authorities, and ordinarily the courts will not interfere if the 
 provisions of law have been, in substance, observed."^* 
 
 Com. v. Sodder^^ was a case wherein the question arose as to the right 
 and power of the City of Boston to "demand the payment of a tax or 
 duty on each carriage licensed, varying from one to twenty dollars, ac- 
 cording to the different kinds of carriages." The court, by Mr. Justice 
 Dewey, say: 
 
 "As to the requisition of a payment of money, operating as it 
 does as a direct tax upon the vehicle to be used, we can find no 
 authority for this provision of the ordinances. Taxes are to be 
 levied under the provisions of general laws enacted by the legis- 
 lature. We look in vain for authority for it either in the city 
 charter, or the statutes of the Commomvealth.'"^ The power 
 here conferred was not a tax levying power."^^ 
 
 § 173. Power to tax. — ^A city may, when empowered by the legis- 
 lature impose a reasonably graduated tax in the nature of a toll for the 
 privilege of using the streets, thereby reimbursing the city for the ex- 
 pense of keeping its streets in repair," and the right to regulate the 
 
 "Royal Indemnity Co. v. Schwartz, Tex. Civ, App. 191S, 172 S. W. 581. 
 
 '*McQuillin Mun. Ord., sees. 400, 401, 402; City of Terra Haute v. Kersey, 
 IS9 Ind. 300, 64 N. E. 469; Kersey v. Terre Haute, i6i Ind. 471, 68 N. E. IQ27. 
 See also Livingston etc. v. City of Paducah, 80 Ky. 656; City of St. Louis v. 
 Grone, 46 Mo. 574. 
 
 "S6 Mass. 563, 571- 
 
 '^Italics by the author of this book. 
 
 ^^See also Boston v. Schaffer, 26 Mass. 415 ; Dunham v. Trustees of Rochester, 
 S Cowen (N. Y. 466). As to taxation of motor vehicles see ante, Chap. VL 
 
 ^'Terre Haute v. Kersey, 159 Ind. 300, 64 N. E. 469; Kersey v. Terre Haute, 
 161 Ind. 47r, 68 N. E. 1027. 
 
 123 
 
§ 174 MUNICIPAL POWERS 
 
 use of the city's streets is broad enough to authorize the imposition of a 
 license iee.'"' 
 
 However a general motor vehicle law supersedes prior legislation 
 giving such authority,'" and a provision of a constitution providing for 
 the registration of automobiles and providing a State license tax leaves 
 the municipalities no power to impose a similar tax where they are 
 given no such power by law.*^ 
 
 The power to impose a "wheel tax" in motor vehicles has been the 
 occasion of much bitter litigation. Cities and towns have no such 
 power in the absence of express authority,'^ and where the right to im- 
 pose a license tax is not granted it cannot be inferred and an ordinance 
 imposing such tax is void.'^ Such a wheel tax has been sustained how- 
 ever as a revenue measure as distinguished from a measure of regula- 
 tion.** 
 
 § 174. Power to regulate does not imply power to license for 
 revenue, — "Ordinarily the power to tax for revenue will not be implied 
 from a general grant of authority, as power 'to regulate,' or to license 
 and regulate. * * * Where the license is intended to serve as a 
 means of raising revenue it is usually construed as a tax on the business 
 or occupation itself, but where it is intended to serve as a regulation 
 merely it will be usually construed as a police regulation and if the 
 amount required to be paid is reasonable and does not exceed the sum 
 necessary to pay for the granting of the license it will be sustained.'"' 
 In Buffalo (City) v. L,ewis,'* the city ordinance was annulled on the 
 ground that it was "a plain attempt to avoid the provisions of the State 
 motor vehicle law," in that it attempted under the guise of a tax, to 
 subvert the plain provisions of the statute with regard to general state 
 licenses for such vehicles. 
 
 ''Booth V. Dallas, Tex. Civ. App. 1916, 179 S. W. 301. 
 
 soHelena v. Dunlap, 102 Ark. 131, 143 S. W. 138; Newport v. Merkel Bros. Co., 
 156 Ky. 580, 161 S. W. S49. 
 siShreveport v. Stringfellow, 137 La. 552, 68 So. 951. 
 82Mobile V. Gentry, 170 Ala. 234, 54 So. 488. As to wheel tax see further ante 
 
 §97- 
 
 ssDistrict of Clifton v. Cummins, 165 Ky. 526, 177 S. W. 432. 
 
 s*Harder's Storage Co. v. Chicago, 235 111. 58, 8s N. E. 24s ; Harder v. Chicago, 
 23S 111. 294, 8s N. E. 2SS; Ayres v. Chicago, 239 HI- 237, 87 N. E. 1073. 
 
 ssMcQuillin Mun. Ord., sec. 406 ; Titusville v. Gahan, 34 Pa. Super. Ct. Reps. 
 613, 623; Bellingham (City) v. Cissna, 44 Wash. 397, 87 Pac. 481. 
 
 8»i92 N. y. 193,, 84 N. E. 809. 
 
 124 
 
MUNICIPAI. POWERS § 175 
 
 § 175. Municipal power to license is usually conferred by the 
 legislature. — "It is usual to confer upon municipal corporations the 
 power to levy and collect a license tax upon certain trades, occupations, 
 etc., carried on within the corporate limits. Unless the State constitution 
 forbids, the state may, through its legislature, provide for imposing a 
 charge upon any and all trades, occupations, avocations, professions, 
 etc., and such power may be delegated to its municipal corporations, to 
 be exercised either as a police regulation or for the purpose of raising 
 revenue. And while the state may so delegate such authority the power 
 may be withdrawn at any time unless the right to do so is prohibited by 
 the constitution."*' 
 
 § 176. License tax.*' — "A license tax is not a tax upon property, 
 but is a burden imposed for the right to exercise a franchise or priv- 
 ilege, which could be withheld or forbidden altogether, and the sum to 
 be charged is merely used as a mode of computing the amount to be . 
 paid for the exercise of the privilege."*' An attempted city license tax 
 is commonly void where the object is covered by State law."" 
 
 If a city ordinance requiring a license and fixing a fee is considered as 
 a tax it is void as inconsistent with the Illinois Motor Vehicle Law of 
 191 1 as it covers all vehicles operated on the streets and as automobiles 
 are so generally used in travelling long distances that the imposition 
 of such taxes by the various cities and towns in the state would render 
 it impossible for any one to use or operate a motor car for the purposes 
 for which it was intended and ordinarily used. It was the intention of 
 the Motor Vehicle Law of 191 1 to abrogate all local ordinances regu- 
 lating the use of motor vehicles and this ordinance is directly against 
 both the spirit and letter of the law.'^ 
 
 § 177. Double taxation in this connection.'^ — "Charter power to 
 license vehicles is usually expressly conferred, but unless the power 
 
 *'McQuilIin Mun. Ord., sec. 403. For forceful judicial expressions of the law 
 on this subject, see opinion of Mr. Justice James Jackson, in Johnston v. City 
 of Macon, 62 Pa. 645, 652 ; also Marraet v. The State, 45 Ohio St. 63, 12 N. E. 
 463. 
 
 s'See § 71 et seq., "License." 
 
 s'McQuillin Mun. Ord., sec. 409. 
 
 '"Frisbie v. Columbus, 80 Ohio St. 686, 89 N. E. 92, although the state law was 
 held to be unconstitutional. 
 
 '^Lincoln v. Dehner, 268 111. 175, 108 N. E. 991. 
 
 '^See § 92, Double taxation. 
 
 125 
 
§ 178 MUNICIPAL POWURS 
 
 exists the tax cannot be imposed. A license is authorized by most 
 charters on the occupation or use to which the vehicle is put, as hacks, 
 cabs, etc., carrying passengers for hire, and drays, etc., carrying goods, 
 merchandise, etc., as a business. But discriminations are not permitted 
 in the imposition and collection of such license tax. An ordinance 
 dividing vehicles and teams into different classes and imposing an occu- 
 pation tax on the separate classes has been sustained. The exaction is 
 not a personal tax on property, and, though imposed for revenue, is in 
 the nature of a license, being a privilege connected with property and is 
 not in violation of the constitution providing that all property shall be 
 taxed in proportion to its value. Charters are construed ordinarily as 
 confering power to impose a tax for the use of streets by vehicles, even 
 though not used thereon for hire."'' 
 
 § 178. Odinances. — A municipality usually acts by ordinance, or 
 by-law, or by regulation or a body of rules, the nature and scope of 
 which is not always clearly distinguished. 
 
 Established laws of a municipality are described as follows : 
 
 "Local laws of a municipal corporation, duly enacted by the 
 proper authorities, prescribing general, uniform and permanent 
 rules of conduct, relating to the corporate affairs of the munici- 
 pality, are, in this country, generally designated as ordinances. 
 
 § 179. Requisites of a valid ordinance.— "The general requisites of 
 a valid municipal ordinance— one legally binding upon all whom it is 
 designed to operate— may be thus briefly summarized: (i) It must be 
 promulgated by a public, or municipal corporation, duly created and 
 legally existing: (2) It must emanate by virtue of power inherent in 
 the corporation, or power either expressly or impliedly delegated to it by 
 the State; (3) It must relate to a subject within the scope of the cor- 
 poration ; (4) It must be in harmony with the constitution of the United 
 States and the state, the laws of the United States and the state, the 
 municipal charter and general principles of the common law in force 
 in the state; (5) Unless it originates by virtue of express delegated 
 power by the state, it must be reasonable in its terms; (6) It must be 
 adopted by the authorized tribunal, legally convened ; (7) It must be in 
 
 93McQuillin Mun. Ord.. sec. 424: City of Terre Haute v. Kersey, 159 Ind. 3«). 
 
 64 N. E. 469- 
 o*McQuillin Mun. Ord., sec. i. 
 
 126 
 
MUNICIPAL POWERS § 1 80 
 
 form as provided; (8) It must be precise, definite and certain in ex- 
 pression; (9)' It must be passed in the manner prescribed; (10) It 
 must be enacted in good faith, in the pubHc interest alone, and designed 
 to enable the corporation to perform its true functions as a local govern- 
 mental organ."'^ 
 
 Of the foregoing requisites, perhaps the most conspicuous are : ( i ) 
 That which requires the passage of an ordinance by virtue of power con- 
 ferred by the legislature, either express or naturally to be implied : (2) 
 That an ordinance shall be the reasonable exercise of the power con- 
 ferred; (3) That the povisions of the ordinance shall be reasonable in 
 their nature, and definite in their terms, and that the penalty for vio- 
 lation be not so excessive "as to be out of harmony with the laws of 
 the state."" 
 
 When an ordinance is attacked on the graund that it is unreasonable, 
 the burden is on the person attacking it. The ordinance must be very 
 clearly obnoxious before the court will declare it invalid ; every intend- 
 ment is to be indulged in favor of its validity, and all doubts resolved in 
 a way to uphold the law-making power.^' 
 
 § 180. What is meant by "reasonable." — " 'Reasonable' as applied 
 to a law is manifestly not what extremists upon the one side or the other 
 would deem, in the light of the principles referred to and the situation 
 to be dealt with, fit or fair. It is what 'from the calm sea level' so to 
 speak, of common sense, applied to the whole situation, is not illegiti- 
 mate in view of the end to be attained. In determining that, the court 
 must look to the language of the statute and to all the facts bearing on 
 the situation of which it may properly be said to judicially know be- 
 cause of their common nature or otherwise. °° 
 
 »5McQuiUin Mun. Ord., sec. 14; Crittenderf v. Booneville, 45 So. 723, 92 Miss. 
 ^7; Chittenden v. Columbus (City), 26 Ohio C. C. S31, 1904; Com. v. Hawkins, 
 14 Pa. Dist. Ct. Reps. 592 ; State v. Mayo, 106 Me. 62, 75 Atl. Repr. 295. 
 
 9«McQuiIHn Mun. Ord., sec. 181 ; Com. v. Worcester, 20 Mass. 461, 473 ; Com. 
 V. Crowninshield, 187 Mass. 221, 222, 224, 72 N. E. 963; Pegg v. City of Colum- 
 bus, 80 Ohio St. 367, 89 N. E. 14. 
 
 s'Ex parte Snowden, 12 Cal. App. 52, 107 Pac. Repr. 724. 
 
 98Ex parte Berry, 147 Cal. 523 ; 82 Pac. 44. 
 
 sspeople ex rel. Kemmler v. Durston, iig N. Y. 569, 24 N. E. 6, 7 L. R. A. 715, 
 16 Am. St. Rep. 859 ; SchoUenberger v. Pennsylvania, 171 U. S. i, 8, 18 Sup. Ct. 
 757. 43 L. Ed. 49; Bonnett v. Vallier, 136 Wis. 193; 116 N. W. 885, 888; Chit- 
 tenden v. Columbus (City), 26 Ohio C. C. 531. 
 
 127 
 
§ l8l MUNICIPAL POWERS 
 
 § i8i. "By-law" defined.^ — ^^This word was the original designation 
 for ordiance in England, and is sometimes used in that sense in this 
 country . More generally the term is "applied to standing rules, adopted 
 by public or private corporations, societies, or associations, relating to 
 their own internal organization and the conduct of their officers and 
 members." The term applies generally to local laws, and in England 
 designates "bye" laws, signifying the place of habitation or local com- 
 munity.^ The validity of a by-law of a corporation is purely a question 
 of law. Whether the by-law be in conflict with the law or with the 
 charter or be in a legal sense unreasonable and therefore unlawful, is a 
 question for the court and not for the jury.' 
 
 § 182. "Regulation" defined.* — A regulation means "a rule of 
 order prescribed by a superior or competent authority, relating to the 
 action of those under its control ; a governing direction ; precept ; law 
 (as police regulation) ; any rule for the ordering of affairs, public or 
 private."^ Regulations differ from by-laws in this — that the by-laws 
 properly relate to the rights and property of the company as between the 
 company and its members only; whereas, regulations generally affect 
 third parties ; for example, in the case of a railroad company, the regu- 
 lations affect the comfort and convenience of travekrs and prescribe 
 rules for their conduct. "The reasonableness and unreasonableness 
 of a regulation is properly for the consideration, not of the court, but 
 of the jury."» 
 
 § 183. Judicial notice of ordinances and how pleaded. — "Courts 
 will judicially notice the charter or incorporating act of a municipal 
 corporation without being specially pleaded, not only when it is declared 
 to be a public statute, but when it is public or general in its nature or 
 purpose, though there be no express provision to that effect. But the 
 acts, votes and ordinances of the corporation are not public matters, and 
 must, unless otherwise provided by statute, be pleaded and proved."^ 
 
 iSee § 182, regulation defined. 
 2 McQuillin Mun. Ord., sees, i and 6. 
 sState V. Overton, 24 N. J. Law, 435, 440- 
 *See § 181, by-law defined. 
 "McQuillin Mun. Otd., sec. 6. 
 estate v. Overton, 24 N. J. Law 43S, 44i, 442. 
 
 7 1 Dillon Mun. Corp., 4th ed., sec. 83; McQuillin Mun. Ord., sec. 373; Dale 
 V. Denver City Tramway Co., i73 Fed. Repr. 787. lEW- 
 
 128 
 
MUNICIPAI< POWERS § 184 
 
 § 184. Ordinances and regulations — ^how pleaded. — In pleading, 
 one should set out as much of the substance of the ordinance or regula- 
 tion as is pertinent to the issue. "All of the ordinance that is legally 
 necessary must appear." That is to say, it should be so stated that the 
 court can judge from the pleading as to the provision of the ordinance 
 itself.' In 111. C. R. R. Co. v. Ashline," the court, by Mr. Justice Craig, 
 after remarking that courts do not take judicial notice of an ordinance, 
 and hence they must be "specially pleaded," say : 
 
 "The pleader was not required to set out the ordinance in hcec 
 verba, but he was required at least to set out the substance of 
 the ordinance. That part of the ordinance relied upon, or all the 
 substantial parts of the ordinance, should be set out, so that the 
 requirements of the ordinance may be seen and known.""^" 
 
 In actions for negligence in violating an ordinance the complaint must 
 set out the ordinance or its substance.^^ 
 
 § 185. Ordinances how proved. — An ordinance is proved by show- 
 ing that it existed and was in force at the time in question. In some 
 jurisdictions it is necessary to show the authority to enact the ordinance. 
 Where municipal corporation courts and police courts "are bound to 
 take judicial notice of ordinances, it is not necessary to plead or prove 
 the authority to enact them." The process of proving an ordinance 
 where no statutory method prevails, is that usually adopted in proving 
 public documents.^^ 
 
 The offer in evidence of municipal ordinances is not sufficient without 
 evidence that they were in force at the date of the accident, and this 
 omission is not waived by failure to call it to the attention of the court 
 at the trial.^' But a municipal ordinance passed some years before the 
 trial will be presumed to continue in effect.^* 
 
 An offer of the ordinance alone without any offer to follow up such 
 ordinance with any proof of its violation is insufficient.^^ 
 
 sMcQuillin Mun. Ord., sec. 374. 
 
 9i7i 111. 313, 31S. 49 N. E. 52. 
 
 ^"See also Harrington v. Stillman, 120 App. Div. 659, 105 N. Y. Supp. 75. 
 
 i^Central Indiana Ry. Co. v. Wishard, Ind. App. 1914, 104 N. E. 593- 
 
 i^McQuillin Mun. Ord., sees. 340, 390. 
 
 I'Adler v. Martin, 179 Ala. 97, 59 So. 597. 
 
 ^^Hill V. Condon, Ala. App. 1916, 70 So. 208. 
 
 i^Central Indiana Ry. Co. v. Wishard, Ind. App. 1914, 104 N. E. 593. 
 
 129 
 
§ l86 MUNICIPAI, POWERS 
 
 § 1 86. Competency of an ordiance in a negligence case. — Upon 
 this point, in Omaha St. Ry. Co. v. Larson, it is said : 
 
 "We think that evidence of an ordinance, and its violation, is 
 admissible under a general averment of negligence, where this 
 question is material in a case. The reason is stated in Faber v. 
 St. Paul M. & M. R. Co., 29 Minn. 465. 'The fact that the rate 
 of speed at which the train was run was prohibited by the munici- 
 pal law, was competent evidence going to prove negligence, and, 
 being evidence of the fact pleaded, it might be proved, although 
 the existence of the ordinance had not been alleged in the com- 
 plaint.' " 
 
 An ordinance though not pleaded may be admitted in evidence to show 
 negligence where the action is not founded directly on the ordinance.^' 
 
 A city ordinance is admissible although there was no count claiming 
 damages as for a violation of this ordinance, as the ordinance as to 
 speed may show that the act complained of was wanton in view of the 
 ordinance.^' 
 
 § 187. Signs. — A city ordinance is valid requiring the city to erect 
 signs at the entrance to the city although one of the signs is placed five 
 hundred feet inside the city limits. This did not mislead any person in 
 this case, and the ordinance was therefore effective.^' 
 
 § 188. Power of public officers to purchase or hire automobiles. 
 — The fact that a county court is given power to "provide for the good 
 condition of the highways" does not give it the power to purchase an 
 automobile for inspecting the roads."" 
 
 Appraisers in condemnation proceedings have been allowed to include 
 automobile hire as a "necessary expense," in condemnation proceedings 
 in New York after a bitter struggle," and a board of supervisors have 
 authority to buy an automobile for the superintendent of highways 
 under the New York Highway Law.^" 
 
 A state officer may be prosecuted for fraud in paying an exorbitant 
 price for an automobile.^* 
 
 isQmaha St. R. v. Larson, 70 Neb. 591, 596, 97 N. W. 824. 
 
 "Jaquith v. Worden, 73 Wash. 349, 132 Pac. 33, 48 L. R. A. (N. S.) 827. 
 
 isYarbrough v. Carter, 179 Ala. 336, 60 Co. 833. 
 
 wPilgrim v. Brown, 168 Iowa 177, 150 N. W. I. 
 
 2<>Hollis V. Weissinger, 142 Ky. 129, 134 S. W. 176. 
 
 "In re Bensel. 123 N. Y. S. 217, 124 N. Y. S. 716, 130 N. Y. S. 689. 
 
 22Porter v. Fletcher, 138 N. Y. S. 557- 
 
 2»Smith v. State, 103 Miss. 3S6, 65 So. 564. 
 
 130 
 
CHAPTER X. 
 
 INTERSTATE TRAVEL AND FEDERAL RELATIONS 
 
 § 189. Traveling defined. 
 
 190. Interstate travel, 
 
 ipi. State statutes and the "police power." 
 
 192. "Non-resident" statutes. 
 
 193. Taxing vehicles from another state. 
 
 194. Taxing non-residents. Reciprocal provisions. 
 19s. Registration of non-resident owners valid. 
 
 196. Interstate pleasure travel beyond federal control. 
 
 197. Interstate commerce. 
 
 198. Police powers. 
 
 199. Foreign diplomatic corps. 
 
 200. The United States mail. 
 
 201. Rules governing transportation on steam vessels. 
 
 202. Customs duties. 
 
 203. Customs duties under Tariff Acts of 1909 and 1913. 
 
 § 189. Traveling defined. — "Traveling" is defined in the Century 
 Dictionary as follows : "To pass or make a journey from place to place, 
 whether on foot, on horseback, or in any conveyance." 
 
 § 190. Interstate travel. — With motor vehicles state lines for the 
 purpose of travel, have become of negligible consequence, distance a 
 matter regarded. Tours involving any length of time, extend through 
 many states, and to the thoughtful traveler it is more than ever apparent 
 that we are citizens not only of separate states, but also of one nation. 
 Politically, the states, each within its own territory, is sovereign except 
 for the powers delegated to the general government through the Federal 
 Constitution. As a citizen^ of the nation, every one is entitled to free 
 passage in and across every state, and by constitutional guaranty and 
 interstate comity, each is assured the immunities in each state granted 
 by that state to its own people. That to which we are entitled in regard 
 to our persons extends as well to our property. In Willard v. The 
 People,^ speaking of the relations between the states and comparing 
 
 ^United States Const., Article IV, sec. 2 ; Ex parte Archy, 9 Cal. 147. 
 =5 111. 461, 475. 
 
 131 
 
§ igi INTERSTATE TEAVEI, AND FEDERAL REIvATlONS 
 
 them to those existing between countries foreign to each other, Mr. 
 Justice Ivockwood says : 
 
 "By the law of nations, it would be considered just cause of 
 complaint if we should arbitrarily refuse to the citizens of foreign 
 nations at peace with us permission to pass through our terri- 
 tories with their property. If this be so, as regards the citizens 
 of foreign nations, how much greater propriety does there exist 
 that we should extend this booii, if boon it be, to our fellow citi- 
 zens, who are also our friends, our neighbors, and our relations." 
 
 From the time of the foundation of the government our peculiar dis- 
 tribution of sovereignty has been productive of perplexing questions. 
 J That discussion should arise in connection with the new method of 
 I travel is to be expected, but it is equally to be anticipated that contro- 
 versy will be ultimately quieted by uniformity of legislation concerted in 
 the spirit of Judge Lockwood's remark. 
 
 § 191. State statutes and the "police power."— In most of the 
 states there are statutes regulating the use and operation of motor 
 vehicles upon their highways. These statutes and this control over the 
 use and occupation of roads, exist by virtue of what is known as the 
 "police power" which belongs to every state and extends everywhere 
 within its borders.* 
 
 Such power was not surrendered or delegated by the states to national 
 administration with the granting of the constitution, and is therefore 
 "reserved to the states respectively, or to the people."* Professor Fred- 
 eric Jesup Stimson quotes the following language of the constitution of 
 West Virginia, as expressive in striking manner of the sentiment pre- 
 vailing generally in the states : 
 
 "The government of the United States is a government of 
 enumerated powers, and all powers not delegated to it, nor in- 
 hibited to the states are reserved to the states or to the people 
 thereof. Among the powers so reserved by the states, is the ex- 
 clusive regulation of their own internal government and police ; 
 and it is the high and solemn duty of the several departments of 
 government, created by this constitution, to guard and protect 
 
 'See chapter III. 
 
 *U. S. Const. Amendments, Art. X; The Federalist No. 32, quoted by the 
 Supreme Court of the United States, as stating the "true doctrine" in Fox v. 
 State of Ohio, S How. U. S. S. C. 41Q, 418. 
 
 eFed. and State Constitutions, Book 1, chap. X, p. 67. 
 
 132 ,: 
 
INTERSTATE TRAVEL AND EEDERAL RElvATlONS § I92 
 
 the people of the state from all encroachments upon the rights 
 so reserved." 
 
 In Adair v. United States,' Mr. Justice Harlan, speaking of the Four- 
 teenth Amendment to the Federal Constitution, says : 
 
 "There are, however, certain powers existing in the sover- 
 eignty of each state in the Union, somewhat vaguely termed 
 police powers, the exact description and limitation of which have 
 not been attempted by the courts. Those powers, broadly stated 
 and without at present, any attempt at a more specific limitation, 
 relate to the safety, health, morals and general welfare of the 
 public. Both property and liberty are held on such reasonable 
 conditions as may be imposed by the governing power of the 
 state in the exercise of those powers, and with such conditions 
 the Fourteenth Amendment was not designed to interfere. In 
 every case that comes before the court, therefore, where legis- 
 lation of this character is concerned and where the protection of 
 the Federal Constitution is sought the question necessarily arises : 
 Is this a fair, reasonable and appropriate exercise of the police 
 power of the state, or is it an unreasonable, unnecessary and 
 arbitrary interference with the right of the individual to his per- 
 sonal liberty ? * * * As already suggested, the rights of lib- 
 erty and property guaranteed by the constitution against depriv- 
 ation without due process of law, is subject to such reasonable 
 restraints as the common good or the general welfare may re- 
 quire."' 
 
 § 192. "Non-resident" statutes. — In a majority of the states that 
 have motor vehicle laws, provisions exist which have for their object 
 the extension of privileges to citizens from other states visiting with 
 their machines. The statute of Massachusetts' upon this point is as 
 follows : 
 
 "A motor vehicle owned by a non-resident of this State, who 
 has complied with the laws relative to motor vehicles and the 
 operation thereof of the State in which he resides, may be oper- 
 ated on the ways of this State for a period not exceeding ten 
 days without registration." 
 
 ^Article I, par. 2. 
 '208 U. S. 161, 173, 28 S. Ct. 277- 
 
 sSee description of police power, § 26 et seq.. Chapter III on power of the Legis- 
 lature. 
 *Act of 1909, c. 534, sees. 3 and 10. 
 
 133 
 
§ 193 INTERSTATE TRAVEL AND FEDERAI, REEATIONS 
 
 The same act (sec. i) contains a definition of the class referred to in 
 the section quoted : 
 
 " 'Non-resident' shall apply to residents of states or countries 
 who have no regular place of abode or business in this Common- 
 wealth for a period of more than three months in the calendar 
 year." 
 
 Permission to non-residents to drive in the state for limited periods 
 does not render the statute void.^" 
 
 § 193. Taxing vehicles from another state.— This topic has created 
 annoyance and excited some degree of irritation which is doubtless 
 inevitable while the public and the motorist are adjusting themselves 
 to the attitude they occupy towards one another in respect to this very 
 modern method of travel. The legal aspect of the general question of 
 taxation is discussed in another chapter.^^ 
 
 From the standpoint of the non-resident motorist the position of the 
 matter in brief is that each state has the same power to tax and assess 
 the citizens of other states sojourning within its borders that it has to 
 tax and assess its own citizens, but no more. 
 
 § 194. Taxing non-residents,^^ Reciprocal Provisions. — By Ar- 
 ticle 4, section 2, of the constitution of the United States, it is provided 
 that citizens of each state shall be entitled to all the privileges and im- 
 munities of citizens of the several states. A state statute, therefore, 
 imposing a license tax : 
 
 "Must not make any discrimination against citizens of other 
 states, either by placing a heavier burden of taxation upon them 
 than is borne by the citizens of that state, or by giving to its 
 own citizens privileges which are not accorded to non-residents 
 in the same line of business. If it does, it is obnoxious to the 
 clause under consideration."" 
 
 By the Fourteenth Amendment to the federal constitution, the states 
 are prohibited from making or enforcing : 
 
 "Any law which shall abridge the privileges or immunities of 
 citizens of the United States; nor shall any state deprive any 
 
 loState V. Lawrence, 105 Miss. 58, 66 So. 745- 
 "See chapter VI on Taxation. 
 i^See § 159, chapter on Municipal Powers. 
 
 "Black's Const. Law, p. 229, sec. 88; Crandall v. State of Nevada, 6 Wall. 
 (U. S.) 35. 
 
 134 
 
INTERSTATE TRAVEL AND FEDERAI, RELATIONS § 194 
 
 person of life, liberty, or property, without due process of law, 
 nor deny to any person within its jurisdiction the equal protec- 
 tion of the laws." 
 
 Concerning the effect of the provisions of the national constitution 
 on state powers. Chief Justice Fuller remarks in Giozza v. Tiernan •}* 
 
 "The amendment does not take from the States those powers 
 of police that were reserved at the time the original constitu- 
 tion was adopted. Undoubtedly it forbids any arbitrary de- 
 privation of life, liberty or property, and secures equal protec- 
 tion to all under like circumstances in the enjoyment of their 
 rights ; but it was not designed to interfere with the power of 
 the State to protect the lives, liberty and property of its citizens, 
 and to promote their health, morals, education and good order. 
 Barbier v. Connolly, 113 U. S. 27, 31 ; In re Kemmler, 136 U. S. 
 436. 
 
 Nor in respect of taxation was the amendment intended to 
 compel the State to adopt an iron rule of equality; to prevent 
 the classification of property for taxation at different rates ; or 
 to prohibit legislation in that regard, special either in the extent 
 to which it operates or the objects sought to be obtained by it. 
 It is enough that there is no discrimination in favor of one as 
 against another of the same class. Bell's Gap Railroad v. Penn- 
 sylvania, 134 U. S. 232; Home Insurance Co. v. New York, 134 
 U. S. 594; Pacific Express Co. v. Seibert, 142 U. S. 339. And 
 due process of law within the meaning of the amendment is se- 
 cured if the laws operate on all alike, and do not subject the in- 
 dividual to an arbitrary exercise of the powers of government. 
 Leeper v. Texas, 139 U. S. 462."" 
 
 As has been seen, the motor vehicle statutes of most of the states 
 in their application to non-residents, extend privileges to those who 
 come as visitors. When the visit extends beyond a time which the 
 legislature considers a mere temporary sojourn, for example ten days, 
 then the exemption from a license tax ceases. 
 
 Where the law requires the registration of automobiles when owned 
 by non-residents and operated in the state "for ten days continuously" 
 
 "148 U. S. 657, 662, 13 S. Ct. 721. 
 
 I'See also Kersey v. City of Terre Haute, 161 Ind. 471, 68 N. E. 1027. 
 
§ 194 INTERSTATE TRAVEI- AND EEDiERAL REI<ATlONS 
 
 this does not apply to such an automobile operated in the state for ten 
 days in the aggregate at different times in the year.^® 
 
 "The privileges extended to visitors cannot be extended to those who 
 come for both business and pleasure. A mere visitor is one who comes 
 only for pleasure or health, and who engages in no business and re- 
 mains only for a reasonable time. If the party engage in any business 
 * * * then the character of visitor is lost."^' 
 
 Unwen v. State^' was a case in which the defendant was a resident 
 of New York, where he had complied with the law requiring registra- 
 tion of automobiles. He was prosecuted and convicted in New Jersey 
 for operating an automobile without registering the same in the latter 
 state, as required by its motor vehicle law. He contended on appeal, 
 that the. provision of the New Jersey law was in contravention of Ar- 
 ticle IV, Section 2, of the federal constitution, and also of the Four- 
 teenth Amendment to that instrument. He further objected that the 
 statute was repugnant to the state constitution of New Jersey. The 
 court in affirming the judgment, by Mr. Justice Reed, say : 
 
 "Regarded as a license fee, it certainly infringes no provision 
 of our constitution, nor any section of the Federal Constitution. 
 It applies to all who drive machines in this state, whether resident 
 or non-resident owners. There is no infringement upon the 
 privileges or immunities of any citizen of another state. 
 
 Nor does the Fourteenth Amendment to the Federal constitu- 
 tion touch these provisions at all. If, as we have concluded, this 
 legislation is a legitimate exercise of the poUce power, it isun- 
 affected by that amendment. The only question which the Fed- 
 eral courts will consider in dealing with state legislation of this 
 character is whether it is within the police power with which 
 each state is invested. Slaughter-house Cases, 16 Wall. 36; 
 Barbier v. Connolly, 113 U. S. 27; Minneapolis v. Beckwith, 129 
 Id. 26; Lawton v. Steele, 152 Id. 133; L'Hote v. New Orleans, 
 177 Id. 587. If it is, then it is no infringement of that amend- 
 ment." 
 A motor vehicle law is valid which imposes a tax on residents and 
 not on non-residents using the roads. The provision is upheld on the 
 
 "Burns v. Bay State Ry. Co., 11 N. H. 112, 88 Atl. 710. See Dudley v. Nor- 
 thampton St. Ry. Co., 202 Mass. 443, 89 N. E. 25, where a similar question was 
 raised but not decided. 
 
 I'Ex parte Archy, 9 Cal. 147, syllabus. ^^^ , v 
 y;*P73 N. J. Law, 529, 1 3 N.-W t .??. (.ifA-r: I "'^ 
 
 ^ 136 
 
INTERSTATE TRAVEI< AND EEDERAI< EEI,ATI0NS § 195 
 
 ground of comity especially as the act only exempted non-residents 
 who had paid a similar tax in their own state.^° 
 
 § 195. Registration of Non-resident Owners Valid.^° — "In the ab- 
 sence 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 inter-state 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 reasonable fees graduated according to the 
 horse-power of the engines, a practical measure of size, speed and diffi- 
 culty of control." This is an exercise of the police power and does not 
 constitute a direct burden on inter-state commerce when a license fee is 
 laid on a non-resident using the roads of a state. Automobiles are 
 known to be enormously destructive of the roads and a system of fees 
 by those who use them is a practical necessity. "Where a state at its 
 own expense furnishes special facilities for the use of those engaged 
 in commerce, interstate as well as intrastate, it may exact compensa- 
 tion therefor so long as its provisions are reasonable. There is no 
 foundation for the claim that this is an interference with the rights of 
 citizens to pass through the state. This at most attempts to regulate 
 the operation of dangerous machines on the highways and to charge 
 for the use of valuable facilities.^^ 
 
 The New Jersey Act of 1908 is valid although imposing a fee ac- 
 cording to horse-power on the non-residents engaged in journeys 
 through the state from one state to another. The state has power to 
 impose such fees even as a revenue measure. This is not void as a 
 regulation of interstate commerce as the state has spent large sums of 
 money in improving these roads which are worn very much by auto- 
 mobile traffic and the fees charged are reasonable tolls for their use. 
 There is no discrimination against non-residents as the fees charged 
 are the same for all.^^ 
 
 § 196. Interstate Pleasure Travel Beyond Federal Control. — 
 Much has been published upon the subject of Federal control and the 
 enactment by congress of a statute which shall apply throughout the 
 
 i»Newport v. Merkel Bros. Co., 156 Ky. s8o, 161 S. W. S49- 
 ^"Non-residents cannot be forced to pay a municipal license fee, see ante § 159. 
 "'Hendrick v. Maryland, 225 U. S. 610, 35 Sup. Ct. Rep. 140. 
 22Kane v. Titus, 81 N. J. L. 594, 80 Atl. 453, Ann. Cas. 1912D, 237. 
 
§ 197 INTERSTATE TRAVEI, AND FtDtRAl, RELATIONS 
 
 land to the regulation of motor vehicle operation. While, without 
 doubt, it is highly desirable to have uniformity of legislation, under our 
 political system such a scheme appears impracticable by direct means. 
 To bring to pass the same Federal control of interstate pleasure motor- 
 ing that exists over interstate commerce, would require in some respects 
 a reconstruction of our institutions. 
 
 § 197. Interstate commerce. — Whenever a motor vehicle is en- 
 gaged in business between one state and another state, then the national 
 control in matters of interstate commerce applies in the same degree 
 as such control would apply to any other class of vehicles engaged in 
 the same occupation. ^^ As to what constitutes "commerce" of an 
 interstate character, the United vStates Supreme Court has within a 
 short time, given a definition, in which can be found no place to include 
 the pleasure vehicle engaged in interstate travel. In Adair v. United 
 States^* Mr. Justice Harlan says : 
 
 "Let us inquire what is commerce, the power to regulate which 
 is given to Congress. 
 
 "This question has been frequently propounded in this court, 
 and the answer has been — and no more specific answer could 
 well have been given — that commerce among the several states 
 comprehends traffic, intercourse, trade, navigation, communi- 
 cation, the transit of persons and the transmission of messages 
 by telegraph — indeed, every species of commercial intercourse 
 among the several states, but not to that commerce 'completely 
 internal, which is carried on between man and man, in a state, 
 or between different parts of the same state, and which does hot 
 extend to or affect other states.' The power to regulate inter- 
 state commerce is the power to prescribe rules by which such 
 commerce must be governed. Of course, as has been often said. 
 Congress has a large discretion in the selection or choice of the 
 means to be employed in the regulation of interstate commerce, 
 and such discretion is hot to be interfered with except where 
 that which is done is in plain violation of the constitution. 
 Northern Securities Co. v. United States, 193 U. S. 197, and au- 
 thorities there cited." 
 
 § 198. Police powers. — Concerning police regulations within state 
 limits, the United States government, under ordinary circumstances, 
 
 23U. S. Const. Article I, sec. 8. 
 2*208 U. S. 161, 176, 28 S. Ct. 277. 
 
 138 
 
INTERSTATE TRAVEI, AND FEDERAL RELATIONS § 199 
 
 has no constitutional authority .^^ "That Congress," says Chief Justice 
 Chase, in the case cited : 
 
 "Has power to regulate commerce with foreign nations and 
 among the several states, and with the Indian tribes, the con- 
 stitution expressly declares. But this express grant of power 
 to regulate commerce among the states has always been under- 
 stood as limited by its terms; and as a virtual denial of any 
 power to interfere with the internal trade and business of the 
 several states."^^ 
 
 § 199. Foreign diplomatic corps. — There is a class of persons with 
 whom state laws have nothing to do, nor can any state enactment be 
 other than void in respect to the operation of their vehicles. Refer- 
 ence is here made to the members of the diplomatic corps accredited 
 by foreign governments to the nation and recognized as such by the 
 President of the United States. This topic is more particularly pre- 
 sented in the chapter on the enforcement of motor vehicle legislation.^^ 
 § 200. The United States mail. — It is a matter of common knowl- 
 edge that the Federal government has control of the carrying and pas- 
 sage of the United States mail. It is also a matter of ordinary in- 
 formation that any person who "knowingly and wilfully'' obstructs or 
 retards the passage of the same, is criminally liable.^* Nevertheless 
 it is within the daily experience of every one, that both railroad trains 
 and vehicles transporting mail matter are subject to state laws and 
 municipal regulation concerning speed limitations and the movement 
 of street traffic, made in the interest of public security and to facilitate 
 passage. 
 
 In the early days of the nation, the question arose as to possible 
 conflict of authority between state and Federal administration in this 
 respect. All contention on this subject has long since been settled. 
 Reference to the following cases will disclose the views which have 
 been accepted as the basis upon which any controversy that may have 
 existed was determined. In 1817, the point was raised in the case of 
 United States v. Hart.^" The accused, being one of the high constables 
 
 25United States v. Dewitt, 9 Wall. (U. S. S. C.) 41. 
 
 ^^Italics by the author of this book. 
 
 "§ 494. 
 
 2sSee Appendix A, for copy Sec. 3995 U. S. Rev. Stats. 
 
 29i Peters, Cir. Ct. Reps. 390, 392, Fed. Cas. 15316. 
 
 139 
 
§ 200 INTERSTATE TRAVEl, AND FEDBRAL REI,ATI0NS 
 
 of the city of Philadelphia, stopped a mail stage carrying the mail in 
 its passage through a principal street, "upon the ground that the stage 
 was going at an immoderate rate so as to endanger the lives and safety 
 of the citizens." The sheriff justified his conduct under an ordinance 
 of the city which subjected every person to a fine who should drive at 
 an immoderate rate therein or so as to endanger the citizens thereof. 
 It was contended that the act of the constable was in violation of the 
 sction of the Federal law, prohibiting "knowingly and wilfully" ob- 
 structing or retarding the passage of the mail. Mr. Justice Bushrod 
 Washington of the Supreme Court, who heard the case at circuit, in 
 deciding it said : 
 
 "But there is in truth no collision between this ordinance and 
 the Act of Congress on which this indictment is founded. If 
 the mail carrier should violate the ordinance, the act of Con- 
 gress does not shelter him from the penalty imposed by the ordi- 
 nance." 
 
 In 1852, Mr. Attorney-General Crittenden prepared an opinion for 
 the Postmaster GeneraP" upon the following question : 
 
 " 'Whether those municipal corporations have, when expressly 
 authorized by their state legislatures to make ordinances regu- 
 lating the speed of railroad trains within their corporate limits, 
 the right to impede the progress of trains carrying the United 
 States mail, or to make the running of such trains, at a speed 
 greater than that prescribed by the corporation, subject the rail- 
 road company or its officers to a pecuniary penalty.' " 
 
 The Attorney-General quotes the decision of Judge Washington, in 
 United States v. Hart,^^ and says : 
 
 "Concurring in the principles of this decision, my answer to 
 your question is, that these municipal corporations have a right 
 to make ordinances for regulating the speed of railroad cars 
 and their trains within the corporate limits, as well of those 
 carrying the mail of the United States, as of those which do not ; 
 the fact of conveying the mail does not exempt the officers of the 
 railroad company from the fine for a breaph of such regulations ; 
 they do not conflict with the act of Congress. 
 
 »»5 Op. Atty. Gen'l, 554. 
 
 'ij Peters Cir. Ct. Reps. 390, 392, Fed. Cas. 15316. 
 
 140 
 
INTERSTATi; TRAVEL AND ^EDERAI, RELATIONS § 20I 
 
 "When such regulations are fairly and discreetly made with in- 
 tent to preserve the peace, safety, and well being of the inhabi- 
 tants of the city, they may be said to flow from powers necessary 
 and proper in themselves, which the act of Congress of the 
 United States does not intend to take away nor impugn." 
 
 In 1868, the Supreme Court of the United States, in the case of 
 United States v. Kirby^^ had the same question before it. Mr. Justice 
 Field, speaking for the court, says : 
 
 "There can be but one answer, in our judgment, to the ques- 
 tions certified to us. The statute of Congress by its terms ap- 
 plies only to persons who 'knowingly and wilfully' obstruct or 
 retard the passage of the mail, or of its carrier ; that is, to those 
 who know that the acts performed will have that effect, and 
 perform them with the intention that such shall be their opera- 
 tion. When the acts zvhich create the obstruction are in them- 
 selves unlawful, the intention to obstruct will be imputed to their 
 author,^^ although the attainment of other ends may have been 
 his primary object. The statute has no reference to acts lawful 
 in themselves, from the execution of which a temporary delay 
 to the mail unavoidably follows." 
 
 § 201. Rules governing transportation on steam vessels.'* — In 
 the matter of transportation of motor vehicles on steam vessels, the 
 Federal government has jurisdiction by virtue of its power to regulate 
 commerce. The law upon this subject is presented in another chapter 
 (Chapter XVII). The Act of 1905,'^ amending previous acts on the 
 subject,'" is confined to the "transporting by steam vessels of gasoline or 
 of any of the products of petroleum when carried by motor vehicles 
 (commonly known as automobiles), using the same as a source of motor 
 power." In addition to regulating such transportation, it gives author- 
 ity to those in control of passenger vessels to refuse to transport auto- 
 mobile vehicles, containing "gasoline, naptha, or other dangerous burn- 
 ing fluids."" 
 
 S274 U. S. (7 Wall.) 482. 
 
 ''Italics by the author of this book. 
 
 "See chapter XVII, on "Gasoline." 
 
 '"Chap. 586, 33 U. S. Stats, at L. 720. The present law may be found in U. S. 
 Compiled Statutes of 1913, § 8242. 
 
 '«See ruling in "The Texas," 134 Fed. Repr. 909 (N. Y.), as affected by the 
 Amendment, see § 330. 
 
 "See § 330. 
 
 MI 
 
§ 202 INTERSTATE TRAVEL AND FEDERAL RELATIONS 
 
 § 202. Customs duties. — Concerning customs duties on vehicles im- 
 ported from foreign countries, the matter is one wholly within the 
 jurisdiction of Congress, and has been the subject of both Federal 
 legislative enactment and judicial decision. The power of congress 
 in this regard, flows from the provision of the constitution, Article I, 
 Sec. 8, empowering it to "regulate commerce with foreign nations," 
 and the power to raise revenue granted by the same instrument. The 
 Tariff Act of 1897, commonly known- as the "Dingley Act," until re- 
 cently has been in force practically since motor vehicles became an 
 industry. This acV provided for the free entry of "books, libraries, 
 usual and reasonable furniture and similar household effects of per- 
 sons and families," if the same had been "actually used abroad by 
 them not less than one year," and were not intended for sale. In 
 the case of Hillhouse v. United States^' the United States Circuit Court, 
 on the strength of Arthur v. Morgan, 112 U. S. 495 (which held that 
 carriages were property classified as household effects), decided that 
 automobiles should be similarly disposed of and were therefore entitled 
 to entry into the country free of duty. The court in this case also held 
 that an automobile as a whole is dividable (i) into such parts as have 
 been used abroad during the term mentioned, and (2) into those parts 
 which have been purchased abroad and used in foreign countries for 
 less than the statutory period, such parts being dutiable. 
 
 Until January, 1909, the rule established in the Hillhouse case was 
 considered as settling the question. At the time mentioned the same 
 court that decided that case, handed down a decision in the case of 
 United States v. W. R. Grace & Co.'° wherein the case of Hillhouse 
 V. United States was distinguished, the court holding : ' 
 
 "That automobiles cannot be said to be similar to books, li- 
 braries, or to usual and reasonable household furniture, or either 
 of them." 
 
 § 203. Customs duties under Tariff Acts of 1909 and 1913. — The 
 Tariff Act, approved August 5, 1909, makes special provision concern- 
 ing motor vehicles as follows : 
 
 "On and after the day following the passage of this act 
 * * * there shall be levied, collected, and paid upon all articles 
 
 88152 Fed. Repr. 163, 81 C. C. A. 415. 
 3»i66 Fed. Repr. 748, 92 C. C. A. sgS. 
 
 142 
 
INTERSTATE TRAVEL AND FEDERAL RELATIONS § 203 
 
 when imported from any foreign country into the United States, 
 or into any of its possessions (except the Philippine Islands and 
 the islands of Guam and Tutuila) the rates of duty which are 
 by the schedules and paragraphs of the dutiable list of this sec- 
 tion prescribed, namely, * * * 
 
 "Schedule C, Par. 141. Automobiles, bicycles, and motor- 
 cycles, and finished parts of any of the foregoing, not including 
 tires, forty-five per centum ad valorem." 
 
 By virtue of section two of the same Act, under what is known as 
 the "maximum and minimum" clause, it is provided that there shall be 
 collected and paid : 
 
 "The rates of duty prescribed by the schedules and paragraphs 
 of the dutiable list of section one of this act, and in addition 
 thereto twenty-five per centum ad valorem; which rates shall 
 constitute the maximum tariff of the United States."*" 
 
 In paragraph 500, relating to the free list, it is provided that there 
 shall be admitted free of duty : 
 
 "Articles the growth, produce, or manufacture of the United 
 States, not including animals, when returned after having been 
 exported, without having been advanced in value or improved in 
 condition by any process of manufacture or other means." 
 
 By paragraph 520, of the same section, it is provided that the follow- 
 ing shall also be admitted free of duty : 
 
 "Books, libraries, usual and reasonable furniture, and similar 
 household effects of persons or families from foreign countries, 
 all the foregoing if actually used abroad by them not less than 
 one year, and not intended for any other person or persons, nor 
 for sale." 
 
 It will be observed that in the new act, the provision concerning 
 household effects, is substantially the same as that in the Dingley Act. 
 Hence the doctrine of United States v. Brace (supra), is equally ap- 
 plicable to the new act as to the old. In addition it must be borne in 
 mind that the Act of 1909, paragraph 141 (supra), carries a. special 
 duty on motor vehicles. It should in this connection also be noted that 
 
 *°The ''minimum" tariff requires the action of the President to render ef- 
 fective. By "minimum" tariff is meant the rate fixed in section one of the act. 
 
 143 
 
§ 203 INTERSTATE TRAVEL AND FEDERAL RELATIONS 
 
 under the act the car is to be dutiable "as an entirety," even though parts 
 like the tires are detached.*^ 
 
 The Tariif Act of 1913,*^ provides duties as follows : 
 
 S. 119. Automobiles, valued at $2,000 or more, and automo- 
 bile bodies, 45 per centum ad valorem; automobiles valued at 
 less than $2,000, 30 per centum ad valorem ; automobile chassis, 
 and finished parts of automobiles, not including tires, 30 per 
 centum ad valorem. 
 
 S. 120. Bicycles, motorcycles, and finished parts thereof, not 
 including tires, 25 per centum ad valorem. 
 
 S. 4, subd. 4. Automobiles, motorcycles, bicycles, areoplanes, 
 airships, ballons, motorboats, racing shells, teams, and saddle 
 horses, and similar vehicles and craft brought temporarily into 
 the United States by non-residents for touring purposes or for 
 the purpose of taking part in races or other specific contests, 
 may be admitted without the payment of duty under bond for 
 their exportation within six months from the date of importa- 
 tion for their exportation within six months from the date of im- 
 portation and under such regulations and subject to such condi- 
 tions as the Secretary of the Treasury may prescribe : Provided, 
 That no article shall be intended for sale or which is imported 
 for sale on approval.*' 
 
 "United States v. Auto Import Co., 168 Fed. Repr. 242, 1909, 93 C. C. A. 456. 
 
 «38 U. S. St. § 16. 
 
 4338 Stats, at Large, 196, chap. 16, sec. 4, sub. 4. 
 
 144 
 
CHAPTER XI. 
 
 OWNERS 
 
 § 204. Scope of chapter. 
 
 205. Responsibility of owners — Generally. 
 
 206. Definition of an owner absolute. 
 
 207. Ownership imports the idea of control. 
 
 208. Joint owners. Associations. 
 
 209. Circumstances showing ownership. 
 
 210. Registration as evidence of ownership. 
 
 211. Admissions as evidence of ownership. 
 
 212. Evidence of identification. 
 
 213. Massachusetts statute. 
 
 § 204. Scope of Chapter. — In other chapters^ the rights, duties and 
 responsibilities of owners are presented more in detail. The present 
 purpose is to define the relation to the vehicle of the person described 
 by the word "owner." 
 
 § 205. Responsibility of owners — Generally. — In the chapter on 
 Principal and Agent' is discussed the responsibility of owners for the 
 acts of servants and agents, and the responsibility of owners for the 
 acts of friends to whom they have intrusted the operation of their 
 cars. In this connection, it is sufficient to say that in general an 
 owner is responsible for the act of his chauffeur only when sucn act 
 is performed "in the course of his employment."^ He is not responsible 
 for the act of a borrower, but is responsible for the act of a friend who 
 may be driving for him, where the accident is caused by carelessness, 
 negligence or the incompetency of such friend.' 
 
 § 206. Definition of an owner absolute. — In Garver Adm'r. v. 
 Hawkeye Ins. Co.* Mr. Justice Seevers says : 
 
 "In Bouvier's Law Dictionary the owner of property is said 
 to be one 'who has dominion of a thing, real or personal, cor- 
 
 ^See particularly chapters on Principal and Agent, and Criminal, and Civil 
 Negligence. 
 
 ^Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133; ^Doran v. 
 Thomsen, 74 N. J. L. 44s, 66 Atl. 897 See Chap. XXXI. 
 
 *69 Iowa 202. 
 
 I4S 
 10 
 
§ 207 OWNERS 
 
 poreal or incorporeal, which he has the right to enjoy, and to 
 do with as he pleases, even to spoil or destroy it as fat as the 
 law permits, unless he be prevented by some agreement or cove- 
 nant which restrains his right.' " 
 
 In Florman v. School District, Etc.,= Mr. Justice Thomson gives the 
 following definition : 
 
 "An owner is one who has dominion over that which is the 
 subject of the ownership. He has the right to make such use 
 of it, consistent with the rights of others, as he may see fit. 
 The ownership may extend to the entire thing, or may be limited 
 to an interest in it ; but whatever is the subject of the ownership, 
 it is held by the owner for his own individual benefit." 
 
 And in McFeters v. Pierson' the Supreme Court, by Mr. Justice El- 
 liott, say: 
 
 "The term 'owner,' when used alone, imports an absolute 
 owner or one who has complete dominion of the propertv owned, 
 as the owner in fee of real property ; but the meaning of a word 
 is often varied according to the connection in which it is used, 
 and is to be understood according to the subject-matter to which 
 it relates." 
 
 § 207. Ownership imports the idea of control. — At the last analy- 
 sis, ownership is the right of control. In motor vehicle cases we fre- 
 quently find the expression "owner of the vehicle or person in control 
 thereof," in matters concerning responsibility to third persons for in- 
 jurious acts, or to the State for the commission of misdemeanors. In 
 Simeone v. Lindsay' Mr. Justice Pennewell in this connection charged 
 the jury as follows: 
 
 "It is not, however, necessary that the defendant should have 
 been the owner of the automobile, because if you believe that he 
 had, at the time of the accident, control of the machine, so as to 
 be able to govern its management or operation, any negligence in 
 operating the machine would be the negligence of tlie defend- 
 ant." 
 
 56 Col. App. 319, 321, 40 Pac. 469- 
 6iS Col. 201, 203, 24 Pac. 1076. 
 76 Pen. 224, 6s Atl. 778 (Del.). 
 
 146 
 
OWNERS § 208 
 
 Commonwealth v. Sherman' was a case wherein the defendant was 
 prosecuted in the district court for driving an automobile at a rate of 
 speed exceeding twelve miles an hour. The automobile "was regis- 
 tered at the time with the Massachusetts highway commission by the 
 defendant and in his name." The court, by Mr. Justice Loring, say : 
 
 "In the opinion of the majority of the court these exceptions 
 must be overruled. The fact that the automobile was registered 
 with the Massachusetts highway commission by the defendant, 
 and in his own name, warranted a finding that he was the gen- 
 eral owner of it, or that he had a special property therein which 
 gave him control thereof. Section i of St. 1903, c. 473, amended 
 by St. 1905, c. 311, Sec. 2, requires that automobiles shall be 
 registered by the owner or person in control thereof."* 
 
 In Bennett v. Busch^" defendant claimed that he was not the owner 
 of the automobile at the time the accident occurred. But the court held 
 that: 
 
 While the actual ownership of the machine may not have been 
 in the defendant, still his evidence showed that the machine and 
 driver were under his general control. 
 
 § 208. Joint owners — Associations. — In Apperson v. Lazro^^ there 
 were two defendants, one of whom was driving the car, and the other 
 was riding as a passenger. It was shown that they were joint owners of 
 the machine. The defendant who was riding as a passenger, contended 
 that judgment should not be rendered against him because he was not 
 operating the vehicle, but merely "occupying a seat therein." The court 
 held that: 
 
 "The complaint alleged defendants were in possession and 
 control of the automobile, and in possession of it at the time, 
 which fact not being contradicted ,wouId render both * * * 
 liable." Citing Hannigan v. Wright, 5 Penn. 537, 63 Atl. 234 
 (Del.). 
 
 8 191 Mass. 439, 78 N. E. 98. 
 
 9See A. 1909, c. 534 § 2, requiring that the "registration of motor vehicles 
 may be made by the owner thereof." 
 "75 N. J. L. 240. 67 Atl. 188. 
 "44 Ind. App. 186, 87 N. E. Repr. 97. 
 
 H7 
 
§ 209 OWNERS 
 
 In Meaney v. Kehoe" the defendant contended that the plaintiff 
 could not recover for injuries to the horse and vehicle, in an action 
 growing out of a collision where negligence was alleged, unless the 
 plaintiff showed that "he (plaintiff) was the sole owner of the horse 
 and carriage described in the declaration." Mr. Justice Holmes, speak- 
 ing for the court, remarks: 
 
 "The failure to prove * * * plaintiff's sole ownership was 
 not a fatal variance under a general allegation of injury to the 
 plaintiff's property. Without going into the learning of the dis- 
 cussions concerning the 'suc^ in the early writs, it is accurate 
 enough for practical purposes to say that nowadays and here the 
 words 'the plaintiff's carriage' and the 'plaintiff's horse' are 
 satisfied by proof of any interest sufficient to support an action. 
 I Chitty R. (7th ed.) 394; see Pub. Stats, v. 214, sec. 14; R. L. 
 c. 219, sec. 9." 
 
 Certain by-laws of an automobile show association giving preference 
 to members in return for money advanced for floor space were up- 
 held."a 
 
 The court considers, without deciding, whether a resolution of a fu- 
 neral directors association prohibiting its members from using auto- 
 mobiles at funerals, is valid but holds that the question does not arise 
 as to transportation of bodies of paupers to medical institutions or 
 places of burial, as these are not funerals.^"** 
 
 § 209. Circumstances showing Ownership. — ^There must be defi- 
 nite evidence of the Uability of the defendant and his connection with 
 the driving of the automobile. This does not appear simply from the 
 fact that the defendant occupied the machine and after the accident 
 assisted the plaintiff into the automobile and drove it to her home.^' 
 Where the defendant denies ownership in an automobile run for hire 
 the jury may find for the plaintiff on evidence that the defendant 
 owned and controlled the machine and enjoyed the benefit of its earn- 
 ings." 
 
 "181 Mass. 424, 63 N. E. 925. 
 
 laaWeber Implement Co. v. St. Louis A. M. & D. Assn., Mo. App. 1916, 181 
 S. W. 1025. 
 labpuneral Directors Assn. v. Box, 154 Ky. 457, 157 S. W. 92a 
 I'McCanna v. Silke, 75 Wash., 383, 134 Pac. 1063. 
 "Barfield v. Evans, 187 Ala. S79, 65 So. 928. 
 
 148 
 
OWNERS § 210 
 
 Ownership of an automobile cannot be shown by an entry in the book 
 of one who sold the car to the wife of the person claimed to be owner 
 as against direct testimony that the car was purchased by the wife with 
 her money.^° 
 
 An automobile may be found to belong to the husband and not to the 
 wife although both husband and wife testified it belonged to her where 
 the bill of sale to her showed unexplained erasures and it was licensed 
 in his name/^ 
 
 It is a question for the jury whether an automobile dealer is estopped 
 from claiming an automobile as his own from the fact that he has per- 
 mitted it to be advertised as belonging to a newspaper and to be given 
 as the prize in a newspaper contest.^^ 
 
 § 210. Registration as Evidence of Ownership. — ^^The license num- 
 ber of an automobile coupled with evidence that the defendant held the 
 license is prima facie proof that the defendant was the owner/* and 
 that it was still his property, the records showing no transfer.^' 
 
 The certificate of ownership in which the defendant's name appeared 
 under a number corresponding with the number of the car is competent 
 as tending to establish by the identity of the numbers either the de- 
 fendant's ownership or the defendant's absolute right to its exclusive 
 possession and management."" So an application for a license for a 
 dififerent car may be shown where it appears that defendant never ap- 
 plied for but one license and that number was on the car which caused 
 the accident."^ 
 
 The fact that the seller's license number is still on a car after a sale 
 raises no presumption against the ownership and control of the buyer 
 
 ^'Colburn Automobik Co. v. Soper, 56 Colo. 201, 138 Pac. 34. 
 
 leDelano v. L,a Bounty, 62 Wash. 595, 114 Pac. 434. 
 
 •^Jones V. Burks, ill Ark. 51, 161 S. W. 177. 
 
 isperris v. Sterling, 214 N. Y. 249, 108 N. E. 406. See Scranton v. Hawley, 9 
 Lack. Co. (Pa.) Reps. 65. This case is cited as holding that there cannot be a 
 conviction where the only evidence to convict independent of the violation, is 
 that there is a machine registered in defendant's name which bears the same 
 number as that appearing on the automobile involved. 
 
 ^'Patterson v. Millican, 12 Ala. App. 324, 66 So. 914. 
 
 2»Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764, 2 N. C C A. 
 806, 8 N. C. C. A. 1087. 
 
 "iHufIt V. Dougherty, 184 Mo. App. 374, 171 S. W. 17. 
 
 149 
 
§ 211 5WNBRS 
 
 where it appears it was customary to do this as an accommodation to 
 the purchaser.^^ 
 
 Evidence of two witnesses that the car which caused the accident had 
 upon it a certain number which was the number in which defendant's 
 car was registered and that it was a red touring car as defendant's was 
 is sufficient to identify it as belonging to the defendant. Where the de- 
 fendant claims he did not put the number on the car till after the date 
 of the accident and that the car was not at this street at the time, the 
 whole question is a question of fact for the jury.^^ 
 
 The fact that the automobile which causes the injury bears defend- 
 ant's license number may be explained by evidence that another chauf- 
 feur borrowed defendant's tag as he had none of his own and that the 
 car in question had a "for hire" sign upon it, while the defendant's car 
 was a private machine never used in the livery business and was new 
 while the car in the accident was not new.^* Evidence that registration 
 in the name of the defendant was taken out by mistake raises a question 
 for the jury.^° 
 
 § 211. Admissions as Evidence of Ownership.^" — Ownership may 
 be shown by admissions by the defendant. 
 
 Evidence that defendant refused to sign a statement because he did 
 not know what effect it might have on his relations with the insurance 
 company may be admissible as showing ownership." And evidence 
 that the defendant had said he would pay for the plaintiff's carriage in- 
 jured if the insurance company did not is competent as an admission 
 that he owned the automobile which did the damage where he denies 
 this.'' 
 
 So statements by the defendant that she did not own the machine 
 which caused the injury made before she had any interest to deny it 
 may be put in evidence.^' 
 
 § 212. Evidence of Identification. — It is often difficult to identify 
 
 »ajanik v. Ford Motor Co., i8o Mich. S57, I47 N. W. Sio. S2 L- R- A- N. S. 294- 
 
 "Painter v. Davis, 113 Minn. 217, 129 N. W. 368. 
 
 2*Patterson v. Millican, 12 Ala. App. 324, 66 So. 914. 
 
 26Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406. 
 
 2* As to admissions see further post, § 1604 et seq. 
 
 27Magee v. Vaughan (D. Ct. Pa.), 212 Fed. 278, 134 C. C. A. 388. 
 
 28Magee v. Vaughan (D. Ct. Pa.), 212 Fed. 278, 134 C. C. A. 38& 
 
 29Barfield v. Evans, 187 Ala: S79, 65 So. 928. 
 
 150 
 
OWNERS § 213 
 
 the automobile which does the damage in an accident case. Evidence 
 that the machine bore defendant's number is always competent. 
 
 A car may be identified as the defendant's on evidence that it was 
 in the vicinity of the accident at the time and that several persons took 
 the number which was defendant's,'" or that the witness, a chauffeur, 
 recognized the car as one he had driven.'^ So it may be sufiScient to 
 identify a car that one witness says it was a big gray car driven by a 
 negro and another says the same and further that he recognized the 
 negro driving and the number.'^ 
 
 The identity of the car is shown as a prima facie matter on evidence 
 that the taxicab which was in colUsion belonged to the defendant and 
 had its name upon it and that the plaintiff knew the driver although 
 there was evidence on behalf of the defendant that none of its drivers 
 reported the accident and that an inspection of all its cars that evening 
 revealed no evidence that any of them had been in collision and although 
 the plaintiff had been unable to identify the driver, when however not 
 all the drivers were present.^' 
 
 Where at least one witness identifies one defendant and another wit- 
 ness saw both riding together shortly before the accident the plaintiff 
 is entitled to go to the jury.'* But evidence of the speed of an automo- 
 bile on a city street a mile and a half before the accident is too remote 
 and vague to identify the automobile itself and was immaterial when 
 the witness simply says it was a red car with a black top with two per- 
 sons in it as there are so many cars of this description.'' 
 
 § 213. Massachusetts statute. — In Revised Laws, Chapter 219, is 
 to be found the following, concerning "proof of ownership of prop- 
 erty" : 
 
 Section 9. "In the prosecution of crimes which relate to or 
 affect real or personal estate, it shall be sufficient, and shall not 
 be a variance, if it is proved on the trial that, at the time when 
 the crime was committed, either the actual or constructual pos- 
 session or the general or special property in the whole or any 
 part of such real or personal estate was in the person or com- 
 munity alleged to be the owner thereof." 
 
 '"Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236. 
 
 '^Renault Taxi Service v. Park Carriage Co., 125 N. Y. S. 518. 
 
 '^Carter v. Walker (Tex. Civ. App.), 1914, 165 S. W. 483- 
 
 "Wiedeman v. St. Louis Taxicab Co., 182 Mo. App. 530, 165 S. W. 1105. 
 
 '*Forgy V. Rutledge, 167 Ky. 182, 180 S. W. 90. 
 
 ^'People V. Barnes, 183 Mich. 179, 148 N. W. 400. See also Nemzer v. New- 
 kirk Ave. Automobile Co., 91 Misc. 13, 154 N. Y. S. 117, where evidence of 
 identification was insufficient. 
 
CHAPTER XII. 
 
 MOTOR VEHICLE OPERATION— DEFECTIVE MACHINES 
 
 § 214. Scope of chapter. 
 
 215. Meaning of the word "operation." 
 
 216. Who is the user of a motor vehicle? 
 
 217. Principles controlling operation. 
 
 218. The rule in the United States. 
 2ig. Canadian and English rule. 
 
 220. Proper vehicle. 
 
 221. The vehicle, its condition, and repairs. 
 
 222. Requirements by statute. 
 
 223. The general rule. 
 
 224. Responsibility of motorist. 
 
 225. Liability for driving defective machine. 
 
 226. When steering gear breaks. 
 
 227. Brakes failing. 
 
 228. Liability for furnishing defective machine to employee. 
 
 229. Appliances — Brakes — Steering apparatus and clutch. 
 
 230. Using engine as brake. 
 
 231. Burden of proof. 
 
 232. Doctrine of "insurer." 
 
 233. The true rule of diligence. 
 
 234. Pure accident. 
 
 235. "Skidding." 
 
 236. Failure to steer when skidding. 
 
 237. Skidding on wet car tracks. 
 
 238. Evidence in skidding cases. 
 
 239. Smoke laws. 
 
 240. Collision with permanent structure. 
 
 241. Driving in low seat. 
 
 242. Forbidding passenger on handlebars of motorcycle. 
 
 243. Motorcyclist bending over machine. 
 
 § 214. Scope of Chapter. — In no feature of the subject is there 
 so general an interest as in that relating to the operation of the vehicle. 
 Not only does it appeal keenly to the motorist, but also in special 
 degree to the public at large. So important is the subject that in 
 succeeding chapters the various features of "operation" are particular- 
 ly examined. At this time it is the purpose to call attention only to 
 
 152 
 
OPERATION § 215 
 
 a few considerations of a general nature,^ reserving for the next chap- 
 ter a presentation of the personal duties and responsibilities of the 
 operator or chauffeur.'' 
 
 § 215. Meaning of the word "operation." — Probably no expres- 
 sion in our language possesses a more extended range of usefulness 
 than the word "operation." In its general sense it means "action, 
 work, agency, exercise of power or influence."' In psychics and 
 physics, in physiology and surgery, in mathematics, in philosophy, and 
 in the various arts, sciences and industries, it finds pertinent appli- 
 cation. In the reported motor vehicle cases the term is in constant use. 
 Its meaning in this relation seems to be well understood, but an au- 
 thoritative statement of what is covered by the expression "motor 
 vehicle operation" has not yet appeared. It is a matter of doubt 
 whether a complete and exact definition of the limitations of the word 
 in this connection is practicable or even desirable. Circumstances 
 make possible a wide variety of situations to which it may apply, and 
 every case ought to stand upon its own facts. An injury received to an 
 automobile while standing in the highway is one by reason of its "oper- 
 ation." Operation must include such stops as motor vehicles usually 
 make.^^ 
 
 As employed in the cases, the word appears to include, and as used 
 in this volume, it is intended to comprise, every situation of a motor 
 vehicle upon any street or way when an "operator" or chaufifeur" 
 should be present, and to extend to such occasions as those to which 
 the law applies concerning vehicles left unattended upon the high- 
 way.* The provision referred to is as follows : 
 
 "No person having control or charge of a motor vehicle shall 
 allow such vehicle to stand in any public street or way and 
 remain unattended without first locking or making it fast or 
 effectively setting the brakes thereon, and stopping the motor 
 of said vehicles." 
 
 iSee Chap. XVIII, Law of the Road; Chap. XIX, Chap. XX, and Chapters 
 XXXIII and XXXIV, on Negligence. 
 ^See § 246 for definition of "operator." 
 'Century Dictionary. 
 
 saStroud V. Hartford (Conn. 1916), 97 Atl. 336. 
 *Mass. St. 1909, chap. 534, § 13. 
 
 IS3 
 
§ 2l6 OPERATION 
 
 § 2i6. Who is the user of a motor vehicle? — The question has 
 reference to the meaning of the word as it appears in motor vehicle 
 laws, in fixing upon some one individual the responsibility for vio- 
 lations of the statute while the car is in use. In a Rhode Island case 
 it was held that the "user" is "the person in control of the motor 
 vehicle at the time of the commission of the offence" and the one to be 
 held responsible for violation of the provisions of the act." 
 
 Where the defendant's infant son under i6 years of age is at the 
 wheel and the defendant is controlUng the machine by holding a pin 
 which controlled the throttle and his left foot was on the pedal he 
 cannot be found guilty of violation of a statute for permitting his son 
 to operate the automobile as he himself had control of it.* 
 
 § 217. Principles controlling operation. — The principles con- 
 trolling operation are summed up in Hannigan v. Wright/ referring 
 to which the court say in House v. Cramer :' 
 
 "Though comparatively new in use, there is nothing novel 
 in the principles of law to be applied with respect to travel 
 with them on the highways. AH that is exacted is reasonable 
 care and caution for the safety of others. The decisions thus 
 far have proceeded on this principle." 
 
 And "reasonable care," as elsewhere appears in this volume, is "care 
 according to the circumstances."® 
 
 § 218. The rule in the United States. — In Irwin v. Judge,^° the 
 Supreme Court of Connecticut, by Mr. Justice Hall, say, on the general 
 subject of automobile operation : 
 
 "To persons riding along or crossing our public roads, and 
 especially our city streets, the rapidly moving automobile is a 
 constant source of danger. Their great weight and speed, 
 power and resulting momentum render the consequences of a 
 collision with them much more serious than with ordinary car- 
 riages, even moving at a higher rate of speed, and it is much 
 more difficult to avoid, and much more confusing to attempt 
 
 =State V. Myette, 30 R. I. 556, 76 Atl. Repr. 664. 
 ■Coryell v. State, 32 Neb. 482, 138 N. W. 572. 
 75 Pennew. 537, 63 Atl. 234. 
 8134 Iowa 374, 112 N. W. 3. 
 »See § 942 et seg., Negligence. 
 I'Si Conn. 492, 71 Atl. 572. 
 
 154 
 
DEFECTIVE MACHINES § 219 
 
 to avoid, the rapidly moving automobiles than the street rail- 
 way car, which has a fixed and known direction and course 
 upon its tracks. While owners of automobiles have the right 
 to drive them upon public streets, yet the proper protection of 
 the equal rights of all to use the highways necessarily requires 
 the adoption of different regulations for the different methods 
 of such use; and what may be a safe rate of speed at which to 
 ride a bicycle or drive a horse may be an unreasonably rapid 
 rate at which to drive an automobile in the same place. For 
 the reasons stated, and others which might be given, the driv- 
 ing of an automobile at a high rate of speed through city 
 streets, at times when and places where other vehicles are con- 
 stantly passing, and men, women and children are liable to 
 be crossing or around corners at the intersection of streets, 
 or in passing by street cars from which passengers have just 
 alighted or may be about to alight, or in other similar places 
 and situations where people are liable to fail to observe an ap- 
 proaching automobile, is in itself actionable negligence. One 
 operating an automobile under such circumstances is bound to 
 take notice of the peculiar danger of collisions in such places. 
 He cannot secure immunity from liability by merely sounding 
 his automobile horn. He must run his car only at such speed as 
 will enable him to timely stop it to avoid collisions. If he 
 fails to do so, he is responsible for the damage he thereby 
 causes." 
 
 § 219. Canadian and English rule.— The Canadian rule follows 
 the English doctrine, and both are identical with that just stated. In 
 Mattel V. Gillies," Chancellor Boyd, quoting Lord Alverstone in 
 Troughton v. Manning,^^ says: 
 
 " 'It has been more than once noticed that the idea prevails 
 among some motor drivers that when once they have sounded 
 their horn, they are justified in going at any rate of speed, 
 and that people are bound to get out of their way.' whereas the 
 most salutary rule would be as recommended by the Considerate 
 Driver's League, 'assume that it is your business, and not the 
 other man's, to avoid danger.' Pettit, Motor Cars, p. 81." 
 
 § 220. Proper Vehicle.— The law is elementary and mandatory 
 that the traveler shall not only provide a proper vehicle, but also that 
 
 "16 Ont. I^ Reps. SS8, 562. 
 
 "92 I,. T. (K. B.) 85s (69 J. P. 207). 
 
 15s 
 
§ 221 DEFBCTIVB MACHINES 
 
 it be in such good order and condition as to offer no menace to the 
 safety of others on the road.^^ 
 
 It is also true that if the motorist fails in any of these respects and 
 himself suffers injury in consequence of such neglect, he is guilty 
 of contributory negligence and cannot recover. In Brinkman v. Pa- 
 cholke,"* the court, speaking of the care required of the plaintiff, say it 
 
 "Applies to the buggy and harness and the horse as well as 
 to his conduct in driving, and if in any of these matters he 
 fails to exercise due care, and the want of such care contributed 
 in any degree to the injury, then plaintiff cannot recover." 
 
 § 221. The vehicle, its condition, and repairs. — In order to 
 effect harmless operation, it is essential that the vehicle shall be supplied 
 with all proper safety appliances, and be kept in such good order and 
 repair as will, on all occasions, confer instant and complete control 
 upon the operator. Default in any of these particulars the consequence 
 of which is injury inflicted, render the motorist liable in the same 
 degree as for negligent driving.^* 
 
 § 222. Requirements by statute. — In almost all the states, for the 
 public protection, statutes exist relating to this matter. In Massa- 
 chusetts the highway commission is authorized to refuse or revoke reg- 
 istration in cases of vehicles which are in its judgment "unsafe or im- 
 properly equipped or otherwise unfit to be operated."^' By the same 
 Act, brakes are required which shall be "powerful in action" and 
 sufficient to serve the intended purpose (s. 7), and, under its general 
 powers (sees. 25, 26), the commission has authority to enforce the 
 observance of these requirements. 
 
 § 223. The general rule.^* — The general rule is stated in Morena 
 V. Winston,^^ which was a case wherein a chain had broken killing 
 
 i^Ingalls V. Bills, 50 Mass. l, IS, and cases cited; Murdock v. Warwick, 70 
 Mass. 180; Johnson v. Small, S B. Mon. (Ky.) 26; Cotterill v. Starkey, 8 Car. 
 & P. (Eng.) 694; Welsh v. Lawrence, 2 Chitty (Eng.) 262; "The European," 
 ID L. R. Prob. Div. (Eng.) 102; Mear's Law of the Motor Car (Eng.) 47; 
 Ray's Negligence of Imposed Duties, "Carriers," sec. 6, p. 27; Indiana Springs 
 Co. V. Brown, 165 Ind. 465, 74 N. E. 616, 1905. 
 
 i^a^i Ind. App. 662, 84 N. E. 762. 
 
 lijohnson v. Coey, 237 lU. 88, 86 N. E. 678. 
 
 ISA. 1909, chap. S34, § 2. 
 
 i8See also §§ 606 et seq. 
 
 1^194 Mass. 379, 80 N. E. 473- 
 
 156 
 
DEI^ECTIVIO MACHINES § 224 
 
 an employe. It was claimed that the break was due to defective com- 
 struction of the chain. The court, by Mr. Justice Sheldon, speaking 
 of the defendants, say: 
 
 "They furnished this chain to be used as a permanent instru- 
 mentality for the very purpose and in the very manner in 
 which it was being used. Haskell v. Cape Ann Anchor Works, 
 178 Mass. 485. They are not excused by the fact that they 
 bought their chains from reputable makers ; for the jury might 
 have found (if indeed this question was in dispute) that not 
 only was the link which broke weak and unfit for use, but that 
 this weakness was due to a fault of the defendant's servant. 
 * * * It was their" (the defendants') "duty to provide rea- 
 sonably safe and proper appliances and machinery for the 
 conduct of their business so far as this could be secured by the 
 exercise of proper care; and if they chose to delegate the per- 
 formance of this duty to one of their servants they became re- 
 sponsible for his negligence both under the statute and at com- 
 mon law." * * * "There was evidence on which the jury 
 could find that the defect in the link might have been discov- 
 ered by inspection, but that no inspection was made. Indeed 
 the defendants do not assert that any inspection was made, they 
 contend that there were no practicable methods of inspection, 
 and that thie methods suggested by the plaintiff in the testi- 
 mony put in, would offer no protection to their servants. But 
 this was plainly a question for the jury." 
 
 § 224. Responsibility o£ motorist. — Of course, between the 
 owner and the manufacturer who supplied the defective vehicle, or the 
 repair man who made improper repairs, there is a right of action, but as 
 to the public, the motorist is responsible for such misconducts.^* 
 
 In Johnson v. Coey,^° Mr. Justice Freeman, in speaking of the de- 
 fective brake of an automobile, applies the foregoing principles to 
 motor vehicle operation: 
 
 "It is undoubtedly true that the defendant could not be 
 held to answer for a latent defect in materials employed in the 
 construction of the machinery of his automobile, which the 
 usual and well recognized tests afforded by science and art for 
 the purpose failed to detect, nor for accidents by which injury 
 is caused when skill and experience are not able to foresee and 
 
 I'See Chapter XXVI, on Manufacturers. 
 "237 111. 88, 86 N. E. 678. 
 
 157 
 
§ 225 DEFECTIVE MACHINES 
 
 avoid them; but the jury have found against the defendant's 
 contention and we are of opinion their finding is warranted by 
 the evidence." 
 
 The burden of proofs" in such cases is upon the defendant, the de- 
 fence being in the nature of a plea in confession and avoidance pre- 
 senting new matter, and to prevail he must show that the defect or 
 derangement suddenly manifested itself.^^ 
 
 § 225. Liability for driving Defective Machine. — An auto- 
 mobile out of repair is not necessarily a dangerous instrument,^^ but 
 an automobile out of repair through a broken rod regulating the flow 
 of gasoline to the carbureter so that it runs at full speed all the time is 
 a dangerous instrumentality and the owner who permits it to be driven 
 on the highway is liable.^^ 
 
 Where an automobile is being driven lacking one rubber tire so 
 that the rim cuts into the asphalt rendering it unmanageable and is 
 proceeding at a speed of five miles an hour the driver is bound to stop 
 rather than to run into pedestrians if it suddenly swerves in its course. 
 It is negligence for him to attempt to pass first on the right, then on 
 the left without once trying the expedient of stopping. There was 
 also here some evidence that the driver "lost his head."^* 
 
 § 226. When Steering Gear Breaks. — Trouble with the steering 
 gear is a difficulty feared by every automobilist as it leaves him help- 
 less and even though the car is traveling at moderate speed is likely to 
 mean death or serious injury to himself and his passengers to say 
 nothing of others on the road. To clear himself of liability in such 
 case he must show that the steering gear has been properly inspected, 
 oiled and adjusted within a reasonable time, that he was driving the 
 car at a moderate pace at the time and that he stopped as soon as 
 possible. It would further seem that liability might be predicated on 
 evidence that the driver had through careless or reckless driving sub- 
 jected the car to undue strain previous to the accident and thus 
 weakened the steering apparatus although he may at the time have 
 been driving carefully. We have however found no' direct authority 
 
 soSee § 1652. 
 
 2iPosener v. Harvey, 125 S. W. Repr. 356 (Tex. Civ. App.), 1910. 
 22Texas Co. v. Veioz, Tex. Civ. App. 1913, 162 S. W. ^^^. 
 23Texas Co. v. Veloz, Tex. Civ. App. 1913, 162 S. W. 377. 
 2*Porter v. Hetherington, 172 Mo. App. 502, 158 S. W. 469. 
 
 158 
 
DEFECTIVE MACHINES § 226 
 
 for this proposition but believe it follows from the language of the 
 cases cited in this chapter. 
 
 The operator may be negligent in not applying the emergency brake 
 on discovering that the steering gear would not work where there is 
 evidence that the application of this brake would have stopped the 
 car before reaching the plaintiff.^'' 
 
 Where a driver discovers that his steering gear is jammed and he 
 makes two circles at a slow speed in a crowded street before stopping 
 he is guilty of contributory negligence. He cannot be excused on the 
 ground of confusion in sudden peril as he had plenty of time to shut 
 off his power.^" A motorman of an electric car is not negligent in not 
 realizing in time that an automobile is traveling with the steering gear 
 jammed where it turns and crosses the track to a place of safety. He is 
 not bound to suppose that it will continue in a circular course across the 
 track again.^' 
 
 Whether an accident was caused by a defective steering gear or 
 by an exploding tire where both give way simultaneously is a question 
 for the jury.^* 
 
 When the steering gear breaks the defendant may be found negligent 
 if he was driving at an excessive or illegal rate at the time.^^ But the 
 mere fact that the plaintiff at the time of his injury was running his 
 car at a rate of speed in excess of that allowed by statute is not enough 
 of itself to bar him from recovery. It must further appear that his 
 violation of law was the proximate cause of the accident. So where 
 the steering gear broke while the plaintiff was driving at a speed of 
 between fifteen and twenty miles an hour it is a question for the jury 
 whether the rate of speed caused the accident although fifteen miles 
 an hour was the legal maximum?" So where the accident was caused 
 by the steering wheel of the automobile becoming suddenly choked 
 and the defendant did not know of the condition of the wheel in time 
 to avoid a colhsion and could not have known of it by the exercise of 
 reasonable care and when he discovered its condition he did everything 
 
 2bFox v. Barekman, 178 Ind. 572, 99 N. E. 989. 
 
 ^^Kneeshaw v. Detroit United Ry., 169 Mich. 697, 135 N. W. 903. 
 
 2'Kneeshaw v. Detroit United Ry., 169 Mich. 697, 135 N. W. 903. 
 
 28Cabanne v. St. Louis Car Co., 156 Mo. 580, 161 S. W. 597. 
 
 2»Pox V. Barekman, 178 Ind. 572, 99 N. E. 989. 
 
 30Cabanne v. St. Louis Car Co., 156 Mo. 580, 161 S. W. 597. 
 
§ 227 DEFECTIVE MACHINES 
 
 possible to avoid the accident and immediately before was operating 
 the car with due care then the defendant is not liable.** 
 
 § 227. Brakes Failing. — It may be a good defence to running into 
 a team from behind that the team stopped suddenly and the defendant's 
 brake broke when he attempted to stop.*" 
 
 If the brakes are not in first class condition the driver should not 
 approach a railroad crossing at a rate of .15 to 30 miles an hour.** 
 
 § 228. Liability for furnishing Defective Machine to Em- 
 ploye.** — There is liability where an automobile dealer furnishes his 
 demonstrator with an automobile with a defective steering gear caus- 
 ing injuries to him. The demonstrator need not prove that the em- 
 ployer might have known of the defect by exercising ordinary care to 
 that end and it is enough that the employer negligently furnished the 
 automobile.*' But if an experienced chauffeur voluntarily operates a 
 car the brakes of which he knows are defective he cannot recover 
 from his employer for injuries resulting from this defect.*" 
 
 § 229. Appliances — Brakes, steering apparatus and clutch. — 
 Safety appliances for motor vehicles are required by the statutes of 
 practically all the states. Such appliances include among other things, 
 a suitable bell, horn or other device for signaling, proper lamps and 
 brakes.*' Apart from any statute the law requires care in all things 
 
 "Scott V. Riddle, Tex. Civ. App., 153 S. W. 408. 
 s^Grogitzkl V. Detroit Ambulance Co., 186 Mich. 374, 152 N. W. 923. 
 33Houston Belt & Terminal Co. v. Rucker, Tex., 167 S. W. 301. 
 s^See further post § 925. 
 3=Cabanne v. St. Louis Car Co., 161 S. W. 597. 
 seMarks v. Stolts, 150 N. Y. S. 952, 9 N. C. C. A. 53. 
 
 '^Massachusetts Motor Vehicle Law, Act igop, chap. 534, sees. S, 6 and 7. The 
 motor vehicle laws of the following states require brakes for safe operation : 
 Alabama — "To bring such vehicle to a quick stop." 
 California — "Good and efficient brakes." 
 Delaware — "A good and efficient brake or brakes." 
 Indiana — "A good and efficient brake." 
 Iowa — "Good and efficient brakes." 
 Kansas — "Good and efficient brakes." 
 Kentucky — "Good and efficient brakes." 
 Maryland — "Good and efficient brakes." 
 Massachusetts — Two brakes and special provisions. 
 Nebraska — "A good and sufficient brake." 
 New Hampshire — "An adequate brake." 
 
 160 
 
DEFECTIVE MACHINES § 229 
 
 pertaining to the efficiency of the engine and equipment and the readi- 
 ness with which both may be controlled. 
 
 As automobiles are commonly constructed, "the lives and safety of 
 the public," as well as of the passengers, primarily depend upon the 
 sufficiency of the brake at all times and under all circumstances to 
 stop the vehicle and to hold it stationary, and upon the steering ap- 
 paratus effectively to direct its motion. A third appliance of im- 
 portance, usually called "the clutch," enables the operator at will, to 
 control the influence of the engine upon the driving wheels of the 
 car. Without belittling any of the other appliances and the necessity 
 of keeping them in serviceable condition, the three particularly men- 
 tioned seem especially to demand a high degree of care. What would 
 the law say to the engine driver charged with homicide who took his 
 locomotive on the road knowing that his brakes were not in working 
 order, or an important mechanical part in such indifferent condition 
 as to render him unable to avert the otherwise avoidable catastrophe 
 in the moment of peril? How far will the law hold the motorist ex- 
 cusable, who drives his car in a crowded street with so much "lost 
 motion" in his steering apparatus, that he cannot command its direc- 
 tion promptly and so avoid calamity? While these precise questions 
 do not seem yet to have made their appearance in any reported motor 
 vehicle case, the answer is found in the law in analogous instances, 
 written in no uncertain terms. The language of the trial judge in 
 charging the jury in the case of Commonwealth v. Pierce,** is very 
 much to the point : 
 
 New Jersey— Brakes each of which "must suffice alone to stop" the car "within 
 a proper time" (Par. s. Part III). 
 New York — "Good and efficient brakes." 
 Ohio — "Good and efficient brakes." 
 Oregon — "Good and efficient brakes." 
 Pennsylvania— ^"Good and efficient brakes." 
 Rhode Island^"Adequate." 
 South Carolina— "Good and efficient." 
 South Dakota— "Good and efficient." 
 Vermont — "Adequate." 
 Virginia— "Good and efficient." 
 Washington— "Good and efficient." 
 Wisconsin — "Brakes." 
 28138 Mass. 165. 
 
 161 
 II 
 
§ 230 DBFECTIVB MACHINES 
 
 "If persons who are engaged in operating steam engines are 
 guilty of gross carelessness or foolhardy presumption, and in- 
 juries result, they are criminally liable. * * * Whenever men 
 are called upon to act with dangerous agencies, the law holds 
 them to some degree of criminal responsibility. * * * If by 
 gross and reckless negligence he caused the death he is guilty 
 of culpable homicide." 
 
 In Mather v. Rillston,*' the Federal Supreme Court, speaking by 
 Mr. Justice Field say : 
 
 "We think it may be laid down as a legal principle that in 
 all occupations which are attended with great and unusual 
 danger, there must be used all appliances readily attainable 
 known to science for the prevention of accidents and that neg- 
 lect to provide such readily attainable appliances will be re- 
 garded as proof of culpable negligence." 
 
 Where the statute requires that an automobile be equipped with an 
 "efficient" brake an instruction that failure to have a "good and 
 efficient" brake is negligence is not error as "sufficient" is practically 
 synonymous with "efficient."*" 
 
 § 230. Using engine as a brake. — ^The motor vehicle law of 
 Massachusetts,*'^ as well as similar laws in some other states and in 
 England, requires that "every motor vehicle of more than ten horse 
 power * * * shall be provided with at least two brakes, powerful 
 in action and separated from each other." Vehicles of less than the 
 horse power mentioned are required to possess but one brake. The 
 act provides how one of the brakes shall be attached to the car, being 
 silent concerning the second brake. Under these circumstances it has 
 been argued that the mechanical possibility of using the engine as a 
 means of stopping the car might be made available as a second brake 
 in lieu of a special device directed solely to that end. The point was 
 made in Wilmott v. Southwell,*^ at the close of which Lord Alverstone, 
 Chief Justice, in deciding against the proposition, said that it : 
 
 "Was too clear for argument. * * * The intention in 
 framing this regulation was that if one of the brakes failed, the 
 other independent brake should be used in its stead." 
 
 S9is6 U. S. 391, 399, IS S. Ct. 464. 
 
 ^opox V. Barekman, 178 Ind. 572, gg N. E. 989. 
 
 *iA. 1909, chap. 534 § 7. 
 
 *225 Law Times Reps., No. 2, p. 22. 
 
 162 
 
dS^SCtive machines § 231 
 
 § 231. Burden of proof:"— In cases where the condition of the 
 vehicle is called in question as the cause of an accident, the burden is 
 not upon the plaintiff to show the particulars of the defect. In 
 Gregory v. American Thread Co.," the court by Mr. Justice Lathrop, 
 say, concerning the burden of proving mechanical defects : 
 
 "While the plaintiff was bound to introduce evidence from 
 which the jury properly might infer that the accident was 
 caused by the defendant's negligence, she was not required to 
 point out the particular act or omission which caused the acci- 
 dent."« 
 
 In Field v. New York Central R.," Mr. Justice Wright says : 
 
 "If I understand their" (the railroad's) "position correctly, 
 it is that in this class of cases, it is incumbent upon the 
 party injured, if he would make out a prima facie case, to 
 show affirmatively that there was something improper in the 
 construction of the defendant's engines, or that they were not 
 in order, or were insufficiently or improperly managed. This 
 is not the rule. Undoubtedly the burden of proving that the 
 injury complained of was caused by the defendant's negligence 
 was upon the plaintiff. To show negligence it was not neces- 
 sary that he should have proved affirmatively that there was 
 something unsuitable or improper in the construction or con- 
 dition or management of the engine. * * * jt often occurs, as 
 in this case, that the same evidence which proves the injury 
 shows such attending circumstances as to raise a presumption of 
 the offending party's negligence, so as to cast on him the burden 
 of disproving it." 
 
 In Christie v. Griggs,*' the axletree of a stage coach broke in conse- 
 quence of which the plaintiff was injured. The defendant was a com- 
 mon carrier. Sir James Mansfield, Chief Justice, said: 
 
 "It now lies on the other side to show that the coach was as 
 good a coach as could be made, and that the driver was as skil- 
 
 *3See § 1652. 
 
 **i87 Mass. 239. 
 
 *5The opinion cites the followin_g in support of this point : Mooney v. Connec- 
 ticut R. L. Co., IS4 Mass. 407, 409, 28 N. E. 352; Melvin v. Pennsylvania Steel 
 Co., 180 Mass. 196, 202, 62 N. E. 379; Kleibaz v. Middletown P. Co., 180 Mass. 
 363, 366, 62 N. E. 371. 
 
 *«32 N. Y. 344. 
 
 "2 Camp 79 (Eng.). 
 
 163 
 
§ 232 OnJUATlON 
 
 f ul a driver as could anywhere be found. * * * But when the 
 breaking down or overturning of a coach is proved, negligence 
 on the part of the owner is implied. He has always the means 
 to rebut this presumption, if it be unfounded." 
 
 § 232. Doctrine of "insurer." — Basing what is to be said on the 
 assumptions that the operator is in possession of a proper vehicle, and 
 of a sufficient degree of knowledge of its mechanism, and skill and 
 sound judgment in manoeuvring it, the question of operation becomes 
 simply one of diligence or negligence on the part of the person in con- 
 trol. So much more is heard in daily affairs and in the law, of negli- 
 gence than of diligence, that sight is apt to be lost of the fact that the 
 former is but the negative expression of the latter. "Negligence" is 
 the "omitting to do things either from carelessness or design; a vio- 
 lation of the obligation to exercise care and caution in what one 
 does ;"*^ while "diligence" means assiduous application to one's business 
 or duty."*' 
 
 In no fewer than a dozen States,"*" there are statutes relating to 
 motor vehicles, the effect of which is to hold the operator to the 
 very highest point of care and diligence attainable by human power 
 and training. Section 7, of Chapter 473, of the Massachusetts Act 
 of 1903, is a fair sample of them all. This provision was repealed by 
 the motor vehicle law of 1909 (Chap. 534), but it is quoted here be- 
 cause it has been closely followed and even copied, in a number of 
 States : 
 
 "Every person having control or charge of an automobile 
 or motor cycle shall, whenever upon any public street or way 
 and approaching any vehicle drawn by a horse or horses, or 
 approaching any horse upon which any person is riding, oper- 
 ate, manage and control such automobile or motor cycle in such 
 manner as to exercise every reasonable precaution to prevent 
 the frightening of such horse or horses and to insure the safety 
 and protection of any person riding or driving the same." 
 
 <8See Chapter XXXIII, Negligence Generally. 
 
 4»Standard and Webster's Diets.; House v. Cramer, 134 Ind. 374, 112 N. W. 3; 
 Fletcher v. Dixon, 107 Md. App. 420, 68 Atl. Repr. 875. See also Johnson v. 
 Hudson River R., 6 Duer 642 (affirmed 20 N. Y. 65). 
 
 BoCalifornia, Florida, Kansas, Kentucky, Michigan, Montana, New Hampshire, 
 New York, Ohio, Oregon, Vermont, Washington. 
 
 164 
 
"insurer" § 232 
 
 In some of the States where the statute does not actually use the 
 word "insure," the effect of the language is much the same. In 
 Maryland, it is made the motorist's duty when he meets a vehicle 
 driven by a woman or child, not only to observe all ordinary caution, 
 but upon signal or request : 
 
 "To stop such motor vehicle, alight therefrom, and lead 
 such horse or other animal by such motor vehicle, and take 
 such other precaution as may be necessary."'^ 
 
 In regard to the "lives or safety of the public,"'^ the statutes of all 
 the states are very solicitous. In Connecticut: 
 
 "No person shall operate a motor vehicle * * * so as to en- 
 danger property or the life or limb of any person."'*^ 
 
 In California, in addition to other cautionary requirements the act 
 provides : 
 
 "Upon approaching a person walking in the roadway of a 
 public highway, * * * ^ person operating a motor vehicle 
 shall give reasonable warning of its approach, and use every 
 reasonable precaution to insure the safety of such person," etc. 
 
 The word "insure" is defined, "to make secure, assure, guarantee""* 
 "To make sure or secure * * * as to insure safety to any one."°° 
 Taken literally and in and unlimited sense, the word would have the 
 effect of importing that whenever a motorist put his vehicle on the 
 street, he gave the public and every individual on the highway, an 
 assurance of perfect safety and complete immunity from injury, by 
 reason of any cause or thing whatsoever wherein his vehicle was 
 directly concerned, whether occasioned by the "act of God" or by 
 the injured person's own heedless or grossly unwarranted act or omis- 
 sion. This is the liability under an insurance absolute. To support 
 such a covenant or attain such a standard of guarantee, would mani- 
 festly be beyond the power of any man operating a motor vehicle on 
 
 s^Sec. 13s, Act of 1906. 
 
 '^Mass. Act of 1909, chap. 534, sec. 22. 
 
 s^Sec. 10, Act of 1905. 
 
 "Standard Diet. 
 
 '"Webster and Century Diets. 
 
 i6s 
 
§ 232 OPBRATION 
 
 the highway. No case anywhere appears involving the automobile, 
 wherein the exact scope or interpretation of the word "insure" has 
 been the subject of consideration. We are therefore relegated to cases 
 of analogous character to furnish a guide. 
 
 No higher standard of diligence has been demanded in the care of 
 human life and safety than that required of railroad proprietors in 
 relation to passengers. Reference to text writers and the decisions 
 discloses that they are held liable for everything that results in harm 
 to their patrons, growing out of their own least lapse from the high- 
 est attainable standard of diligence consistent with the operation of 
 a railroad. This rule is not, however, wholly without qualification, 
 for the "act of God," vis major, the "pubHc enemy," and the passen- 
 ger's own carelessness or viciousness, are excluded from the respon- 
 sibility, and so also is "pure accident." But even in regard to the 
 exceptions mentioned, the railroad would be held responsible if by 
 the exercise of due care and proper skill, prudence, and forethought, 
 measures could have been taken to ward off that which, occurring in 
 their absence, was bound to be inevitable accident. It is because of 
 these qualifying features that the rule is universal and the law well 
 settled, that railroad companies even as to passengers, are not in- 
 surers.^' 
 
 In Ingalls v. Bills,^' Mr. Justice Hubbard, in an extended review of 
 the English authorities, says on this point : 
 
 "The same question has arisen in this country, and the de- 
 cisions exhibit a uniformity of opinion that coach proprietors 
 are not liable as common carriers, but are made responsible by 
 reason of negligence. * * * In the case of HoUister v. Nowl- 
 en, 19 Wend. 236, they say, that 'stage coach proprietors, and 
 other carriers by land and water, incur very different respon- 
 sibility in relation to the passenger and his baggage. For an 
 injury to the passenger, they are answerable only where there 
 has been a want of proper care, diligence or skill; but in rela- 
 tion to baggage, they are regarded as insurers, and must an- 
 swer for any loss not occasioned by inevitable accident or the 
 public enemies."^* 
 
 "eEUiott on Railroads, sec. 1587; Lawson on Carriers, sec. 3; so also as to 
 the proprietors of public stage lines. Ingalls v. Bills, 50 Mass. I, 6; also as to 
 carriers of passengers generally. See also § 1231. 
 
 B^so Mass. I, 13- 
 
 166 
 
"insurer" § 232 
 
 In Isbell V. Pittsfield etc. Ry. Co./^ the justice in the trial court 
 charged the jury that the duty of the defendant involved "the exercise 
 by the company, of the utmost diligence consistent with the trans- 
 mission of the business." On appeal the defendant raised the point 
 that this expression v^^ent too far and held the company to be in effect 
 an insurer. The Supreme Court sustain the position of the lower court, 
 and say: 
 
 "The presiding judge had previously instructed the jury 
 * * * that the defendant was bound to exercise the highest 
 degree of care consistent with the nature of its business. This 
 distinctly negatived the idea that its liability was that of an 
 insurer." 
 
 From the foregoing, the conclusion seems inevitable that in pro- 
 ceedings by way of indictment for the enforcement of a penalty under 
 the statute, the literal eifect of the word "insure" is to hold the oper- 
 ator to the highest degree of diligence compatible with the operation 
 of a motor vehicle, and to punish him for any lapse therefrom. In 
 an action in tort on the civil side of the tribunal, the matter might 
 assume more of the aspect of a rule of evidence and a shifting from 
 one side to the other of the burden of introducing evidence. But in 
 no case is it conceived that the language of the act will hold the motor- 
 ist to the unqualified doctrine of res ipsa loquitur, applied to the vehicle 
 or its driver ."' 
 
 The learned author last mentioned in the section cited, speaking of 
 the degree of care required of travelers, says : 
 
 "There is no presumption of law in these cases that the de- 
 fendant has been negligent, arising from the mere fact of the 
 happening of the accident. The maxim res ipsa loquitur has 
 no a,pplication here. The burden is on the plaintiff and he must 
 make out his case."°^ 
 
 =8See also Stokes v. Saltonstall, 13 Peters (U. S. S. C.) 191. 
 
 "'igd Mass. 300, 82 N. E. 3. 
 
 8»i Shearman & Redf., Law of Negligence, sth ed., sees. 57, .^9; Thompson, 
 Com. on Negligence; 2d ed., sec. 1283. 
 
 "^Citing Lane v. Crombie, 29 Mass. 177; Parker v. Adams, 53 Mass. 415; 
 Cotton V. Wood, 8 C. B. N. S. (Eng.) 568; also Schmidt v. Harkness, 3 Mo. 
 App. 585. 
 
 16^ 
 
§ 232 OPERATION 
 
 This doctrine taken literally as meaning that the thing speaks' for 
 itself, and applied without any limitation to the motor vehicle, would 
 import that in an occurrence of any kind in which a motor vehicle 
 was involved, the mere presence of the vehicle on the scene would 
 create a presumption and establish a prima facie case without further 
 proof against the vehicle and its driver.*^ If the word "insure" as 
 used in the statute, is to be taken in its extreme meaning, res ipsa 
 loquitur without qualification" would be the logical result. Against 
 such a position, runs the whole trend of present day judicial decision."^ 
 Dr. Wharton,"* has this to say : 
 
 "Where an accident happens through some chance which a 
 driver using reasonable care and diligence cannot see and avoid, 
 however, he cannot be held criminally liable for a death result- 
 ing therefrom." 
 
 In Fletcher v. Dixon,°° Chief Justice Boyd says : 
 
 "The mere fact that the plaintiff's horse was frightened and 
 that the automobile caused it to run away, would not make the 
 defendant liable." 
 
 In Sapp V. Hunter,"" the trial judge charged the jury that "regard- 
 less of the degree of care defendant might have been exercising at 
 the time, the bare fact that the approach of his machine did frighten 
 the horses and cause them to run away and kill the mother of plaintiff, 
 is proof of negligence on the part of defendant which will support the 
 cause of action asserted." The Appellate Court declaring this propo- 
 sition to be unsound, by Mr. Justice Johnson, say : 
 
 "Should we adopt this construction of the language under 
 consideration, we should feel compelled to pronounce the in- 
 struction erroneous. A person driving a motor car on a public 
 thoroughfare is not an insurer^''' of the safety of the occupants 
 
 62i Dresser, Employer's Liability, sec. 50, and vol. 2, p. 244; 7 Words & 
 Phrases Jud. Def., 6136. 
 
 BsMacomber v. Nichols, 34 Mich. 212; Cooley on Torts, 3d ed., p. 1424; 
 O'Donnell v. O'Neil, 130 Mo. App. 360, 109 S. W. 815. 
 
 «*0n Homicide, 3d ed., sec. 464. 
 
 85107 Md. 420, 68 Atl. Repr. 875, 878. 
 
 88134 Mo. App. 68s, 115 S. W. Repr. 463. 
 
 8'Italics by the author of this book. 
 
 168 
 
DII^IGENCB § 233 
 
 of vehicles drawn by horses. In meeting or passing such ve- 
 hicles, he must employ care in keeping with the demands of 
 the circumstances of the situation, which means that he must 
 not run at an excessive rate of speed, must keep a vigilant 
 watch, and at the first indication of danger must stop his ve- 
 hicle and, if necessary and practicable, must stop his motor. 
 If, despite his observance of such reasonable caution and re- 
 gard for the rights of others, horses suddenly become so fright- 
 ened and unruly that they injure an occupant of the con- 
 veyance to which they are hitched, the autoist cannot be held 
 liable to respond in damages for such injurious consequences. 
 Under the principles and rules of the common law, automobiles 
 should be recognized as lawful vehicles, and there is nothing in 
 the statutes enacted in 1903 (sections i, 2, pp. 162, 163, Laws 
 of 1903; Ann. St. 1906, sees. 5028-1, 5028-2) to alter their 
 character. To entitle her to recover it devolved on plaintiff 
 to plead and prove that some act or acts of negligence on the 
 part of defendant, in the operation of the machine, were the 
 proximate cause of the injury. Hall v. Compton, 130 Mo. App. 
 67s, 108, S. W. 1 122; O'Donnell v. O'Neil, 130 Mo. App. 360, 
 109 S. W. 815." 
 
 § 233. The true rule of diligence. — From the foregoing exami- 
 nation of the authorities it appears that the following propositions on 
 the point of diligence by the motorist in respect of the public, are 
 abundantly sustained, (i) That safe and proper vehicles with en- 
 gines in good running order and condition, subject to easy control 
 and management, must be provided. (2) That knowledge, skill and 
 discretion must be employed; and (3) That the whole must be direct- 
 ed by a wise forethought to avert possible evil growing out of sound 
 judgment, good sense, proper regard for the rights and welfare of 
 others, and an apprehension of the possibilities for the working of 
 harm by the thing operated."* 
 
 It has been held, after considering the weight, speed and power of 
 an automobile that "the chauffeur should be held to the same degree 
 of care in respect to other vehicles upon the street as is a motorman 
 in charge of a street car running on a public street," but this is not the 
 usual rule." 
 
 88See Ray's Negligence of Imposed Duties "Carriers," sees. 8 and 14; Lawson 
 on Carriers, sec. 15 ; 2 Shearman & Redf., on Negligence, sth ed., sees. 494, 495, 
 496, 497; 4 Elliott on Railroads, sees. 1583, 1587; Hall v. Renfro, 3 Met. (Ky.) 
 54; Taylor v. Railway, 46 N. H. 313. 
 
 "^McFern v. Gardner, 121 Mo. App. i, 97 S. W. 972. 
 
 169 
 
§ 234 OPERATION 
 
 § 234. Pure Accident. — Where the evidence is such that the jury 
 may find that the injuries were accidental purely, the defendant is en- 
 titled to a charge to that effect/" and in that case the plaintiff cannot 
 recover.''^ 
 
 § 235. Skidding. — It is a well-known fact that under certain con- 
 ditions, as when the road is greasy, motor vehicles are liable to "skid" 
 and that while in the act they are not under the perfect control of the 
 operator. But this does not relieve the situation from the question of 
 negligence. It is a matter for the jury to determine whether the driver 
 was so operating his car as to minimize the danger and took proper 
 precautions to prevent its occurrence.''^ 
 
 Skidding is not, as sometimes claimed, a mysterious happening, a 
 sort of "act of God" beyond the control of the operator. It is a 
 perfectly definite result of certain physical forces, such as the speed 
 of the car, its weight and distribution of weight, and the friction 
 between the rear wheels and the road. Some cars skid more easily 
 than others. The tendency to skid may depend on the number of 
 passengers and whether they are sitting in the front or rear seats. 
 Wet, icy, or greasy roads and especially wet car tracks are potent and 
 well known dangers which may be diminished by the use of non-skid 
 tires and tire chains and by reduction of speed. It is known that a sud- 
 den application of the brakes on a slippery pavement will almost inev- 
 itably cause the car to skid and swerve from its course and clever racing 
 drivers are accustomed to make use of this phenomenon in turning 
 corners. 
 
 The courts have generally recognized these conditions and hold that 
 the mere fact that the car skidded is no defence to the motorist, that 
 his negligence is a question for the jury." 
 
 So there may be liability where an ommibus skids on to the side- 
 walk^* but not where it skids into a lamp-post set illegally in the high- 
 way.''' Where a driver of an automobile is driving between fifteen and 
 
 '"Texas Traction Co. v. Wiley (Tex. Civ. App.), 1914, 164 S. W. 1028. 
 
 TiSimeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 778. 
 
 '^Walton V. Vanguard Motorbus Co., 25 Tiroes L. Reps. (K. B.) 13, 51 L. R. 
 A. N. S. 1006 note. 
 
 '^Pedestrians injured by skidding of automobiles. See 2 N. C. C. A. 303-308 
 note. 
 
 '*Philpot V. Fifth Ave. Coach Co., 142 N. Y. App. Div. 811, 128 N. Y. S. 35- 
 
 ">Walton V. Vanguard Motorbus Co., 25 Law Times (K. B.) 13. 
 
 170 
 
SKIDDING § 236 
 
 twenty miles an hour on a wet pavement and attempts to turn up a side 
 street and skids and nearly overturns and to prevent overturning he 
 straightens out his car and runs into a buggy it is apparent that the 
 accident was due to his negligence.''" The mere fact that a car skids is 
 not evidence of negligence. But the jury may find the driver negligent 
 in driving more than thirty miles an hour round a turn when the 
 crowned surface of the road was loose and wet.''"^ 
 
 A verdict for the plaintiff is affirmed on evidence that the defendant's 
 truck was coming down a hill at a speed of twenty-five miles an hour 
 and swung to the left to avoid an automobile standing at the foot of the 
 hill and skidded and collided head on with the plaintiff's car coming 
 in the opposite direction.'^ 
 
 A finding for the plaintiff is sustained on evidence that the de- 
 fendant while driving 10 or 12 miles an hour passing plaintiff's horse 
 standing by the curb suddenly turned to avoid a bicyclist and his ma- 
 chine skidded into the horse.'^ 
 
 A jury's verdict for the defendant was sustained on evidence that de- 
 fendant driving at a lawful rate of speed put on his brakes suddenly on 
 a wet pavement when confronted by a car coming out of a driveway 
 across the street and caused his car to skid into the plaintiff.''' 
 
 Where putting on the brakes causes the car to skid across the centre 
 of the street this does not show a violation of the statute in driving 
 on the wrong side of the street.^" 
 
 § 236. Failure to steer when skidding. — The driver is negligent 
 who when he sees a vehicle ahead of him on a rainy night applies his 
 brakes and skids and does not try to turn to one side to avoid the 
 vehicle, although he testifies he was helpless.'^ It might be thought that 
 the judges who decided this case were not very familiar with auto- 
 mobiles as it is a matter of common knowledge that when a car skids 
 the operation of the front wheel has little or no effect on its course — 
 certainly not enough to turn it to one side of a buggy in the road. 
 
 'sWright V. Young, 160 Ky. 636, 170 S. W. 25. 
 
 "aLoftus V. Pelletier (Mass. 1916), in N. E. 712. 
 
 ^'Coffin V. Laskau, 89 Conn. 325, 94 Atl. 370, L. R. A. igisE, 959. 
 
 'sWhitwell V. Wolf, 127 Minn. 529, 149 N. 'W. 299. 
 
 ^'Chase v. Tingdale Bros., 127 Minn. 401, 149 N. W. 654. 
 
 80Chase v. Tingdale Bros., 127 Minn. 401, 149 N. W. 654. 
 
 siRussell V. Electric Garage Co., 90 Neb. 719, 134 N. W. 253. 
 
 171 
 
§ 237 OPERATION 
 
 § 237. Skidding on wet car tracks. — The jury have a right to find 
 that the operator of the automobile was negligent in driving in the 
 groove of wet tracks and in applying increased power when trying 
 to turn out, where this resulted in the automobile skidding across the 
 street on to the sidewalk.^^ 
 
 § 238. Evidence in skidding cases. — Proof that other auto- 
 mobiles had skidded at the same place was immaterial unless the con- 
 ditions and management of these cars was also shown.^^ 
 
 An expert may testify that in his opinion after skidding begins it 
 cannot be stopped. It is then discretionary with the trial judge whether 
 to allow him in cross-examination to answer whether he has seen other 
 light machines skid at the place where the accident occurred.** 
 
 Where the plaintiff claimed that marks on the street showed that 
 the defendant's automobile had skidded ninety feet the defendant 
 showed that he had on the rear wheels non-skid tires which showed 
 no marks as they must if they had skidded ninety feet.*' 
 
 Where the tires burst causing the automobile to skid and run upon 
 the sidewalk the defendant may be found to be negligent in running at 
 an excessive speed and in not applying the brakes properly where there 
 was evidence that the car ran a distance of 30 or 40 feet without 
 diminution of speed after the explosion of the tires and was before 
 that running from 18 to 25 miles an hour.'" 
 
 § 239. Smoke laws. — In England the subject of smoke emission 
 has received more attention than in the United States, although in some 
 communities there are regulations concerning it. There does not, 
 however, appear to be any reported American motor vehicle case on 
 this point. By the English Highways and Locomotives, etc., Act of 
 1878, 41 and 42, Vict., Chap, yy. Sec. 30, it was provided that: 
 
 "Every locomotive used on any turnpike road or highway 
 shall be constructed on the principle of consuming its own 
 smoke ; and any person using any locomotive not so constructed, 
 or not consuming so far as practicable, its own smoke, shall be 
 liable to a fine not exceeding five pounds for every day during 
 
 szWilliams v. Holbrook, 216 Mass. 239, 103 N. E. 633, 8 N. C. C. A. 380. 
 83WilHams v. Holbrook, 216 Mass. 239, 103 N. E. 633, 8 N. C. C. A. 380. 
 8*Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633, 8 N. C. C. A. 380. 
 SBHiscock V. Phinney, 81 Wash. 117, 142 Pac. 461, 8 N. C. C. A. 382. 
 8°Roach V. Hinchcliff, 214 Mass. 267, loi N. E. 383, 4 N. C. C. A. 29. 
 
 172 
 
SMOKE § 239 
 
 which such locomotive is used on any turnpike road or high- 
 way." 
 
 In 1896, by Section I, Chapters 36, 59 and 60, Vict., the Act of 
 1878, was amended by excepting from the provisions of the Act of 
 1878: 
 
 "Any vehicle propelled by mechanical power if it is under 
 three tons in weight unladen, * * * and is so constructed 
 that no smoke or visible vapor is emitted therefrom except from 
 any temporary or accidental cause." 
 
 In 1903 the English Motor Car Act came into being (3 Edw. 7, 
 Chap. 36, Sec. 12), and therein it was provided that the weight of 
 "light locomotives" covered by the exception of the Act of 1896, 
 might be increased by the local government board by regulation, which 
 was done in article 3 of the "Heavy Motor Car Order" of 1904, 
 whereby the weight of such vehicles of the excepted class was in- 
 creased from three to five tons, but subject nevertheless, to the pro- 
 vision of the Act of 1896 relative to smokeless construction. The case 
 of the Star Omnibus Co. v. Tagg,*' was a public prosecution under the 
 Act of 1878. A motor-omnibus weighing less than five tons "emitted 
 quantities of blue colored smoke while being drawn on a highway." 
 The engine was constructed of the "smokeless type." It was alleged 
 that the smoke was due to the negligence of the driver in supplying an 
 excessive quantity of lubricating oil to the engine. Defendant alleged 
 that the omnibus was so constructed as to "consume, so far as practic- 
 able, its own smoke," and that therefore it complied with the Act of 
 1896, and did not violate the Act of 1878. In his decision. Lord 
 Alverstone, Chief Justice, reviews the legislation referred to, and says 
 that the act does not contemplate as an "offence" under the statute, the 
 feeding of too much lubricant to a properly designed smokeless engine, 
 and that as: 
 
 "This omnibus was so constructed that no smoke or visible 
 vapor could be emitted therefrom except by reason of the 
 driver's negligence; it therefore did not come within the class 
 to which the section of the act applied under which the sum- 
 mons 'was taken out.' " 
 
 S'33 Times I,. R., K- B. 488, vol. I. 
 
§ 240 OPERATION 
 
 In Massachusetts, the subject of smoke nuisance is embraced in Re- 
 vised Laws, Chapter 102, Sec. 122, as amended by Chapter 187, Laws 
 of 1908, Sec. I, which section is as follows : 
 
 "The emission, except by locomotive engines * * * into 
 the open air of dark smoke or dense gray smoke for more than 
 five minutes continuously, or the emission except as aforesaid, 
 of such smoke during ninety minutes of any continuous period 
 of twelve hours, within a quarter of a mile of a dwelling house, 
 is hereby declared a nuisance, unless such emission is under a 
 permit which may be granted annually by the mayor and alder- 
 men of cities or the selectmen of towns." 
 
 The Act of 1914, chapter 190 applies particularly to motor vehicles, 
 providing "that no operator of any motor vehicle shall at any time 
 permit any unreasonable amount of smoke to escape from such motor 
 vehicle." 
 
 A general motor vehicle act may not divest a city or town of au- 
 thority to forbid the emission of excessive smoke.*' 
 
 "Smoke alone was not a nuisance at common law. It, however, be- 
 comes a nuisance where it is of such a character as to cause substantial 
 discomfort or inconvenience to another, or to materially diminish the 
 value of adjoining property.'' Not being a nuisance per se at common 
 law, the evil must be "such as to render it specially uncomfortable. * * * 
 The inconvenience must not be merely fanciful or one of mere delicacy 
 or fastidiousness, but must be one which materially interferes with 
 the ordinary comfort, physically, of human existence," and it is within 
 the scope of legislative authority, in the exercise of the police power, 
 "to declare that a nuisance which is not one per se or was not one at 
 common law, which power may be delegated to a municipality."'® 
 
 § 240. Collision with Permanent Structure. — Whenever a mo- 
 tor vehicle comes in contact with a lamp post or telegraph or trolley 
 pole, or a hydrant or any other structure of a permanent character in 
 or alongside the roadway or on a sidewalk, the inference is that the 
 driver was negligent. The presumption, however, is not conclusive. 
 In Walton v. Vanguard Motorbus Co.,°° the defendant's omnibus had 
 
 ssChicago v. Shaw Livery Co., 258 111. 409, loi N. E. 588. 
 
 8»See also Chapter XV, Nuisance. 
 
 9025 Times Law Reps. (K. B.) 13. Skidding into lamp-post, see ante, § 235. 
 
POSITION OF OPBRATOR § 243 
 
 collided with "a standard lamp erected on the foot-path in front of the 
 plaintifl's premises." Lord Alverstone, C. J., observed that where a 
 vehicle which in ordinary circumstances confines itself to the roadway, 
 knocked down a permanent structure on the pavement, the fact itself 
 furnished evidence from which the jury might come to a conclusion 
 that there was negligence on the part of the driver of the vehicle."^ 
 
 § 241. Driving in low seat. — It may be evidence of defendant's 
 negligence that he was driving in a seat so low that he could not see 
 over a team he was passing.'^ 
 
 § 242. Forbidding Passengers on Handlebars of Motorcycle. — 
 It is a valid exercise of the police power to forbid operation of motor- 
 cycles with a passenger on the handlebars in front of the driver 
 although there is no restraint on one driving an automobile with a 
 passenger in front of the driver. There was evidence that motor- 
 cycles are more apt to skid than automobiles and catch fire and the 
 court finds there is good reason for the distinction."' 
 
 § 243. Motorcyclist Bending over machine. — It is not neces- 
 sarily negligence for a motorcyclist while riding on the right hand side 
 of the street to bend forward temporarily to examine his machine."* 
 
 »iSee also Garfield v. Hartford etc. St. Ry. Co., 79 Conn. 458, 65 Atl. 598. 
 
 »2Miller v. Widemann, 249 Pa. St. 234, 94 Atl. 835. 
 
 "^In re Wickstrum, 9a Neb. 523, 138 N. W. 733. 
 
 »*Allen V. Pearson, 89 Conn. 401, 94 Atl. 277, 9 N. C. C. A. 915. 
 
 175 
 
CHAPTER XIII. 
 
 "CHAUFFEURS" AND OPERATORS 
 
 § 244. Scope of chapter. 
 
 245. "Chauffeurs." 
 
 246. "Operator." 
 
 247. Distinction between "chauffeur" and "operator." 
 
 248. The operator must be competent. 
 
 249. Chauffeurs as mechanics. 
 
 250. Relation between employer and chauffeur. 
 
 251. Degree of care not kss than that of motormen. 
 
 252. Responsibility, generally. 
 
 253. Responsibility to licensing authority. 
 
 254. Excuse of "obedience to orders." 
 
 255. Conflict of orders and duty. 
 
 256. Conflict of duties. 
 
 257. Jumping from the vehicle. 
 
 258- Responsibility of taxicab, etc., drivers. 
 
 259. Contributory negilgence of chauffeur. 
 
 260. Demanding or accepting a commission or bonus. 
 
 261. Ordering supplies and repairs. 
 
 262. Placing car in storage. 
 
 263. License obtained by concealing disability. 
 
 264. Unlicensed operators. 
 
 265. Driver "accompanied by" licensed operator. 
 
 266. Age limit for operator. 
 
 § 244. Scope of Chapter. — ^At this time it is the purpose to con- 
 sider the subject only in its general features, excluding in so far as 
 possible the topics particularly pertinent growing out of statutory pro- 
 visions, the law of negligence, and the common law requirement of care 
 in operation.^ 
 
 iSee Chapter XVIII, Law of the Road; Chapter XIX, Speed Limitations; 
 Chapter XX, Reckless Driving, and chapters on Negligence in its various aspects, 
 civil and criminal. Competency of operators, see ante, §§ 31, 171, and post, § 1464- 
 
 For unauthorized use of car, "joy riding" and the like, see § 882 et seq. 
 
 176 
 
CHAUFFEURS AND OPERATORS § 245 
 
 § 245. "Chauffeurs."^ — In Webster's International Dictionary, 
 supplement of 1904, the word "chauffeur" makes, perhaps, its earliest 
 authoritative appearance in our language. The definition given is as 
 follows: "Chauffeur, literally, a stoker; one who manages the run- 
 ning of an automobile." The word is of French origin where its mean- 
 ing is generally, "a warmer; heater, stoker, fireman." In the Stand- 
 ard Dictionary Addenda, a chauffeur is defined as being: "One who 
 drives or operates an automobile." 
 
 § 246. "Operator." It is in the sense of one who operates, that the 
 word "operator" and "chauffeur"' have become generally interchange- 
 able expressions in American motoring. The definition of "operator" 
 is said to be : 
 
 "One who operates ; specifically, one who works with or con- 
 trols some machine or scientific apparatus, any skilled worker."* 
 
 The word "operator" is, therefore, the larger expression fairly in- 
 cluding within its purport the word "chauffeur." In England the name 
 "chauffeur" does not seem to have become popular. The Motor Car 
 Act of 1903,^ uses the word "driver," and in the reported English 
 cases that word is universally employed as synonymous with operator. 
 In some of the states the same designation finds place in the same 
 connection. Thus, by section 2038 of the General Statutes of Con- 
 necticut, 1902, regulating the use of vehicles on the highway, the term 
 "driver" is "construed to include any person riding or propelling a 
 bicycle or tricycle or directing a motor vehicle." 
 
 ^Historically— In the Encyclopedia Americana, 1905, the following appears: 
 "Chauffeurs or Garrotteurs, an organization of brigands during the Reign of 
 Terror in France. Their headquarters were first in the forest of Orgeres, near 
 the city of Chartres, and afterward they infested other parts of the country in 
 bands organized under the leadership of Johan Buckler, surnamed Schinder- 
 hannes, until 1803, when the measures adopted under the consulate put a stop to 
 their depredations. They garroted their victims, and tortured and burned 
 (chauffe) their feet to make them disgorge their treasures. While engaged in 
 burglaries they put a black veil over their faces or painted them with soot." See 
 Webster's Int. Diet., 1910. 
 
 'Case's French and English Dictionary; also Spiers & Surenne's Fr Pron 
 Diet. 
 ^Standard Diet. 
 63 Edw. VII, chap. 36. 
 
 177 
 
 12 
 
§ 247 CHAUFlfBURS AND OPERATORS 
 
 In Massachusetts, in one of the park rules of the city of Boston it 
 is said: "No person shall ride or drive in Commonwealth Avenue at 
 a rate of speed exceeding eight miles an hour." In Commonwealth 
 V. Crowninshield," the defendant was prosecuted for violating this regu- 
 lation. In defence he contended that the words "ride or drive" in the 
 regulations were too indefinite to support a criminal proceeding. The 
 court, by Mr. Justice Lathrop, say: 
 
 "We are of opinion that a person may be said to be driving 
 an automobile if he is controlling the motive power."' 
 
 § 247. Distinction between "chauffeur" and "operator."— Re- 
 cently there has appeared a distinction in the meaning of the expres- 
 sions "operator" and "chauffeur." This discrimination, however, is 
 rather of classification than of substance. In the Encyclopedia Ameri- 
 cana, 1905, a chauffeur is spoken of as follows : 
 
 "Chauffeur" (Fr. a stoker). "This term has recently come 
 into use in the English language to designate at first the engi- 
 neer or motorman of a steam driven road carriage ; but by ex- 
 tension it is now applied to any professional machinist who 
 operates an automobile electrically or otherwise propelled." 
 
 In line with the description last given, we find the Massachusetts 
 motor vehicle law of 1909, chapter 534, carefully distinguishing between 
 the two classes of persons : 
 
 Sec. I. * * * " 'Chauffeur' shall mean any person who op- 
 erates a motor vehicle other than his own and who directly or 
 indirectly receives pay or any compensation whatsoever for any 
 work or service in connection with motor vehicles. * * * 
 'Operator' shall mean any person who operates a motor vehicle, 
 other than a chauffeur." 
 
 There being no distinction between the degree of responsibility for 
 care and management by the two classes of persons, in all cases where 
 the operation of motor vehicles is concerned, the expressions "oper- 
 ator" and "chauffeur" or "driver," are used in this volume in their 
 generally accepted and indiscriminate application to the person in actual 
 control of the mechanism of the vehicle while it is in use. 
 
 6187 Mass. 221, 226, 72 N. E. 963- 
 
 'See also State v. Myette, 38 R. I. 556, 76 Atl. Repr. 664. 
 
 178 
 
CHAUFFEURS AND OPERATORS § 248 
 
 § 248. The operator must be competent. — It is soundly settled in 
 the common law, that the driver of a vehicle must be skilful/ espe- 
 cially where dangerous mechanisms or agencies are employed." "The 
 law presumes, apart from any regulation, that a man is competent to 
 execute the work he takes in hand, and this duty is construed strictly 
 when the consequences of lack of skill will be such that in all probability 
 injury will be inflicted on the person and property of others."'" 
 
 The more complicated and more powerful the character of the ve- 
 hicle, and the greater its liability to do injury to others, the higher is 
 the degree of skill, care and caution required in its use and operation.^' 
 
 It is entirely within the limits of conservative expression to describe 
 the automobile as a powerful and complicated mechanism that cannot 
 safely be run by an inexperienced person. Competency, prudence and 
 sound judgment are required to avoid injury to travelers.'^ 
 
 In People v. Schneider^^ the court say : 
 
 "We may take judicial notice that * * * these automobiles 
 
 * * * driven by indifferent, careless, or incompetent operators 
 
 * * * may be a menace to the safety of the traveling public." 
 
 An English writer sums up a review on this subject, in these words : 
 
 "A grave duty attaches in every case where a person is using 
 a highly dangerous thing which, unless managed with the great- 
 est care, is likely to cause accident."'* 
 
 Dr. Wharton'' vigorously remarks : 
 
 "You are bound to know the character of the instruments you 
 employ, and your neglect to acquaint yourself with their char- 
 
 ^See § 1464, Criminal negligence; also Flower v. Adam, 2 Young (Eng.) 315; 
 Peoria Co. v. Loomis, 20 111. 251. 
 
 'Steamboat New World v. King, 16 How. (U. S. S. C.) 475. 
 
 '"Mear's Law of the Motor Car (Eng.), 45- See Com. v. Pierce, 138 Mass. 
 16s, for the general expression of this doctrine. 
 
 "Emerson etc. v. Pearson, 64 Atl. Repr. 583, 74 N. H. 22 ; Simeone v. Lindsay, 
 6 Pen (Del.) 224, 65 Atl. Repr. 778. 
 
 '^Knight V. Lanier, 64 App. Div. 619, 74 N. Y. Supp. looi ; Radnor Township 
 V. Bell, 27 Pa. Super. Ct. i, 6; Emerson etc. Co. v. Pearson, 74 N. H. 22, 64 Atl, 
 Repr. 582 ; Walker v. Grout Auto. Co., 124 Mo. 628. 
 
 '2i39 Mich. 67s, 103 N. W. 172. 
 
 i^Mear's Law of the Motor Car, p. 47. 
 
 '"On Negligence, 2d ed., sec. 923. 
 
 179 
 
§ 248 CHAUFlfEURS AND OPERATORS 
 
 acter is itself a negligence for whose consequence the law holds 
 you liable." 
 
 In Garrett v. People's Ry. Co." Mr. Justice Boyce charged the jury 
 that the operator should have had his machine under control, and "if 
 . he was unfamiliar with the safety appliances and by reason thereof was 
 unable to use them, he was guilty of negligence." 
 
 In expressing the sentiment of the community, the legislatures of 
 a considerable number of the states have required that before a person 
 shall be permitted to drive an automobile, he shall show special training 
 and qualification, and be licensed by public authority. In New England 
 we find such laws in nearly all the states.^' 
 
 There is everywhere a tendency manifest to elevate the standard of 
 skill and qualification demanded of operators. In one state the provi- 
 sion of law on this subject is as follows : 
 
 "No person under the age of sixteen years shall be licensed 
 to drive automobiles, nor shall any person be licensed to drive 
 automobiles until said person shall have passed a satisfactory 
 examination as to his ability as an operator, which examination 
 shall include a test of the knowledge on the part of said person 
 of such portions of the mechanism of automobiles as is necessary 
 in order to insure the safe operation of a vehicle."^' 
 
 Massachusetts requires that applicants for chauffeur's license shall be 
 examined : 
 
 "As to their knowledge of the rules of the road, the automo- 
 bile laws, and the operation and control of motor vehicles, and 
 are required to give a demonstration on the pubUc roads of their 
 ability to operate."^' 
 
 In Rhode Island, all such persons are required on applying for a 
 license : 
 
 "To show such knowledge of the mechanism of motor vehicles, 
 the rules of the road, and the motor vehicle law, as will * * * 
 
 186 Pennew. 29 (Del.), 64 Atl. 254. 
 
 I'Por power of the legislature in this regard, see ante, § 31. 
 
 Mass. Act of 1909, chap. 534. sec. 8; New Hampshire Auto. Law, sec. 4; Ver- 
 mont Act of 1904 sec. 4; Rhode Island Act of 1908, chap. 1592, sec. 7; Mame 
 Auto. Law, sec. ig. 
 
 "New Jersey Auto. Law, Part IV, sec. 17. 
 
 "Mass. Auto. Dept., Book, sec. 7, p. 3. 
 
 180 
 
CHAUFFEURS AND OPERATORS § 249 
 
 render said applicant a proper and safe person to operate said 
 vehicle upon the public highway.""" 
 
 In addition to special training and preparation, the "personal equa- 
 tion" cuts a figure. In Mclntyre v. Omer^^ it is said : 
 
 "There is nothing dangerous in the use of an automobile 
 when managed by an intelligent and prudent driver. Its guid- 
 ance, its speed and its noise are all subject to quick and easy 
 regulation, and under the control of a competent and considerate 
 manage'T, it is as harmless * * * on the road, as other ve- 
 hicles in common use." See also Lewis v. Amorous."" 
 
 Whenever an insurance corporation enters into a contract of insur- 
 ance, one of the elements of the transaction is what is called "the moral 
 hazard," by which is meant the personal character, history, habits and 
 reputation for morality, honesty, and probity, as well as intelligence, 
 of the party to be insured. So in the matter of licensing a chauffeur. 
 In Massachusetts he must in addition to demonstrating his knowledge 
 and abiUty, give satisfactory proof that he is a "proper person,""' and 
 be endorsed by at least three reputable citizens. If at any time the 
 contrary appears, the license may summarily be withdrawn. In sub- 
 stance and effect the same is the requirement of the law concerning 
 knowledge, mental ability, and moral attributes, as well as skill and 
 knowledge, required of operators of motor vehicles in most states of 
 the Union."* i 
 
 § 249. Chauffeurs as Mechanics."^ — The "chauffeur" is not a la- 
 borer in the sense of "one who performs work which requires little 
 skill or special training, as distinguished from the skilled workman.""" 
 In England, where distinctions of this kind are more closely observed 
 
 ""Chap. 1592, Act of 1908, sec. 7. See also New York Motor Vehicle Act, 1910 
 chap. 374, § 289. 
 
 "1166 Ind. 57, 62, 76 N. E. 750. 
 
 ""3 Ga. App. so, 59 S. E. 340. 
 
 ""3 Ga. App. 50, 59 S. E. 340. 
 
 "*See Ingalls v. Bills, 50 Mass. i, 15, and cases cited, for statement of the 
 general principle; also Navailles v. Dielman, 124 La. 421, 50 So. 449; Weil v. 
 Kreutzer, 134 Ky. 563, 121 S. W. 471. 
 
 "^See § 31 et seq., as to State's authority under the "police power'' to examine 
 as to fitness as a prerequisite to licensing operators. 
 
 "8Cent. Diet. 
 
 181 
 
§ 249 CHAUSS'BURS AND OPERATORS 
 
 than in America, the question appeared before the courts in Smith v. 
 Associated Omnibus Co.^' The plaintiff was employed by the defend- 
 ant "as a driver of a motor omnibus." The action was brought under 
 the England Employers' Liability Act, which excludes from its benefits 
 "a domestic or menial servant." The case turned upon the question as 
 to the class within which the plaintiff should come. Mr. Justice Dar- 
 ling observed that drivers of motor omnibuses were often : 
 
 "Artificers, that is to say they are trained for the mechanician's 
 work which they have to do." They have an engine to start, 
 they are supplied with tools as a part of their working apparatus 
 and "if anything goes wrong with the mechanism of the car 
 when on the road the driver has to do such necessary repairs as 
 he is able." 
 
 Mr. Justice Ivawrence said : 
 
 "In my opinion the evidence in this case shows that the work 
 done by the plaintiff, is ejusdem generis with the work done by 
 the artificer or a handicraftsman * * * and he has also to do 
 repairs when the machinery breaks down." 
 
 The American idea of the profession of motor vehicle operation, — 
 its dignity and requirements, is well expressed by Mr. Justice Burgess 
 in State v. Swagerty,^^ 102 S. W. 483, where he says : 
 
 " 'When the calling or profession or business is attended with 
 danger, or requires a certain degree of scientific knowledge upon 
 which others must rely, then legislation properly steps in to im- 
 pose conditions upon its exercise.' It is certainly true that the 
 business of the man who operates and propels an automobile 
 along the public highway, called a chauffeur, is such a business 
 as is above alluded to. It is attended with danger and requires 
 a degree of scientific knowledge upon which others must rely. 
 These horseless vehicles are certainly capable of being propelled 
 at a greater rate of speed than any ordinary vehicles known to 
 the traveling public prior to their invention; and if they may 
 travel at any rate of speed of which they are capable, persons 
 injured would have no remedy, except such negligence as the 
 common law gives a remedy for." 
 
 27Law Reps. K. B., vol. i, p. 916. 
 
 28203 Mo. SI 7, 526, 102 S. W. 483 (quoting the Supreme Court of the United 
 States in Railroad v. Beckwith, 129 U. S. 29). 
 
 182 
 
CHAUFFEURS AND OPERATORS § 250 
 
 § 250. Relation between employer and chauffeur.^' — In Hannigan 
 V. Wright'" Mr. Justice Pennewill charged the jury: 
 
 "The acts of the chauffeur, in operating an automobile, within 
 the authority of his employment, are the acts of a servant. The 
 relation of master and servant exists between the chauffeur and 
 his employer, and the rules of law applicable to that relation 
 apply." 
 
 The word "servant" is used here in the large sense of an employe, 
 not as indicating menial service. It includes within the scope of the 
 employment, the relation of agency. The basis of the relation is that 
 of control by the principal, thus, in Routledge v. Rambler, Etc., Co.,^^ 
 the chauffeur was asked whether he was at the time in question running 
 the car at an excessive speed under the orders of the passengers or of 
 the employer. The court held that the question was improper without 
 first showing that the passengers had authority to give orders. 
 
 § 251. Degree of care not less than that of motormen.'^ — In Mc- 
 Fern v. Gardner^'' Chief Justice Bland, after considering the weight, 
 speed and power of an automobile, says, concerning the degree of dili- 
 gence demanded of the operator : 
 
 "The chauffeur should be held to the same degree of care in 
 respect to other vehicles upon the street as is a motorman in 
 charge of a street car running on a public street." 
 
 Mr. Justice Barker, in Weil v. Kreutzer,'* declares "An automobile 
 * * * is much more dangerous than a street car," and hence to be 
 operated with a greater degree of care. 
 
 § 252. Responsibility, generally. — In all cases, civil and criminal, 
 where negligence or the violation of a duty in operating a motor ve- 
 hicle is concerned, it is never to be forgotten that, irrespective of who- 
 ever else may be liable to the injured person or to the state, the operator 
 is the one primarily responsible. In civil actions the person injured 
 may sue either the chauffeur or the owner, or both. In cases of mis- 
 
 2'See § 799, Respondeat superior. 
 
 *°S Pennew. (Del.) 537, 54°. 63 Atl. 234. 
 
 ^^95 S. W. Repr. 749 (Tex. Civ. App.), 1906. 
 
 s2See §§ 232, 944, ms. 
 
 2'i2i Mo. App. I, 97 S. W. 972. 
 
 3*134 Ky. 563, 121 S. W. 471. 
 
 183 
 
§ 253 CHAUFlfEURS AND OPSKATOES 
 
 demeanor, as in prosecutions for overspeeding and the like, the driver 
 is a principal even though others may be convicted as principals also.'" 
 
 In cases falling within the definition of crimes mala in se, like man- 
 slaughter, the chauffeur is the principal even though the employer or 
 occupant of the car may be punishable as an accomplice.'^ 
 
 In State v. Watson'^ which was a case wherein a motor vehicle 
 operator had been convicted of manslaughter, the Supreme Court of 
 Missouri say : 
 
 "Individuals as well as corporations in the use and operation 
 of dangerous machines, should have a due regard to the preser- 
 vation of the rights of the public in the use of the public streets, 
 as well as the protection of persons using such streets from in- 
 jury, and if they fail in this, and should in the operation of a 
 vehicle which is always attended with more or less danger negli- 
 gently, carelessly, and recklessly destroy human life, it is butin 
 keeping with the proper and impartial administration of justice 
 that the penalties should be suffered for the commission of such 
 acts."'« 
 
 § 253. Responsibility to licensing authority. — In addition to his 
 responsibility under the general law, the operator of a motor vehicle 
 is amenable under special statutes and regulations concerning his license 
 to operate and his methods of operating.'^ Under these provisions it is 
 immaterial whether the chauffeur's conduct is such as to render him 
 liable as matter of law, in a criminal prosecution or in a civil action, if 
 his conduct while operating should be regarded by the supervising and 
 licensing authority as improper or violative of the general policy of the 
 motor vehicle act which has for its prime object the "lives and safety 
 of the public." 
 
 § 254. Excuse of "obedience to orders."— It is no defense in a 
 criminal prosecution for the chauffeur to plead that his violation of law 
 or duty was in obedience to the command of his employer; In the ca,se 
 of People V. Melius" the defendant was a brakeman of a railroad train, 
 
 35Com. V. Sherman, 191 Mass. 439, 79 N. E. 98; Ramsden v. Boston & A. R., 
 104 Mass. 117, 121- 
 
 s^See § 1460, Criminal negligence. 
 
 372i6 Mo. 420, 115 S. W. Repr. ion, 1015. « „ ^ ^ 
 
 ssSee also Lewis v. Amorous, 3 Ga. App. 50, 57, 59 S. E. 338; State y. Camp- 
 bell, 74 Atl. Repr. 927, 82 Conn. 671 1 State v. Goetz, 83 Conn. 437, 74 Atl. lOOO. 
 
 s^Mass. St. 1909, chap. 534. 
 
 4»i N. Y. Crim. Reps. 39. 
 
 184 
 
CHAUFFEURS AND OPERATORS § 255 
 
 indicted for manslaughter in the negligent performance of his duties. 
 He pleaded in excuse that the acts complained of were done by him in 
 pursuance of the orders of his superior officer. Mr. Justice Noah 
 Davis, in charging the jury, said : 
 
 "The defendant's duty may be in some cases, as between him- 
 self and the company, controlled by written rules ; * * * but 
 when the question arises as to the obligation of performing a 
 duty towards the passengers and save their lives from exposure 
 or danger, then, if the written rules were of a character which 
 restrained him from doing something which ought to have been 
 done and is required by law to be done, the written rules would 
 scarcely be protection when the people charged him with cul- 
 pable negligence. * * * The law would say it was culpable 
 negligence not to do what was an apparent necessity to save the 
 lives of passengers. The law requires the exercise of that de- 
 gree of care and vigilence which the character of the impending 
 danger demands. A man's duty is always measured by that 
 standard. If there be neglect of duty under circumstances where 
 a jury can say such negligence was wrongful, * * * then it 
 becomes a crime, if in consequence of that wrongful negligence 
 some human being is killed." 
 
 In a civil action for an injury sustained where the chauffeur is plain- 
 tiff, and contributory negligence is averred against him, the rule is less 
 stringently applied than in a criminal prosecution. In such a case it 
 will be a question for the jury.*^ 
 
 § 255. Conflict of orders and duty. — ^^The chauffeur occasionally 
 finds himself between the horns of a dilemma. Such a situation arises 
 when he receives an order from his employer to do that which he 
 knows from his knowledge of the law, to be a violation thereof. The 
 persistency of the employer may be such as to threaten the loss of 
 position in case of disobedience. The dilemma presents itself to the 
 chauffeur in this wise: "If I disobey the order and obey the law, 
 I lose my position. If I obey the order disobeying the law, I risk a 
 chance of being caught in the latter, for the sake of a certainty of 
 saving my position." As a matter of duty the chauffeur's position is 
 perfectly clear, and it is extremely doubtful whether it is not equally 
 dear that, even upon the lower plane of sound policy, obedience to the 
 law should control him in any view of the matter, because, (a) if he 
 
 *iSee § 990 et seq.; Thompson, Com. on Negligence, 2 ed., sec. 442. 
 
 185 
 
§ 2S6 CHAUFFEURS AND OPeEATORS 
 
 loses his position by disobedience to orders, he still has his license and 
 may be employed again, (b) but if he loses his license not only does 
 he lose his position but he also loses the chance of being employed by 
 some one else.*^ In any event, if he disobeys the law he runs an 
 obvious risk and it does not lie with him to complain if the law finds 
 him out.*' 
 
 § 256. Conflict of duties.**— Now and then there occurs in the 
 operator's experience, a moment of peril, when the duties which he owes 
 to the public conflict with those which he owes to his passenger. Such 
 instances are usually sudden in arising, requiring instant decision and 
 the exercise of the soundest judgment. The principle of the common 
 law was expressed by Chief Justice Best in Chaplin v. Hawes :*' 
 
 "But, on the sudden, a man may not be sufficiently self- 
 possessed to know in what way to decide ; and in such a case I 
 think the wrong-doer is the party who is to be answerable for 
 the mischief, though it might have been prevented by the other 
 party's acting differently." 
 
 In Sapp V. Hunter** Mr. Justice Johnson says, concerning such an 
 occasion : 
 
 "Where a person is compelled to choose between protecting 
 himself and those in his charge against possible injury, or pro- 
 tecting others who are in peril, he is justified in obeying the in- 
 stinct of self preservation." 
 
 But in such event it must be shown that the alternative grew out 
 of circumstances in no way involving negligence on the part of the 
 operator, and that the situation, so far as he is concerned, was un- 
 avoidable. As between the public and the occupants of the vehicle, 
 there might, indeed, arise a question as to whether the passengers hav- 
 ing accepted that mode of conveyance, did not assume the risk of just 
 such possible contingency,*' and hence their rights and protection were 
 
 *2Mass. St. 1909, chap. 534, § i2- 
 
 *3Lamson v. American Axe & T. Co., 177 Mass. 144, S8 N. E. So.S- 
 **See § 1088 et seq. 
 «3 Car. & P. SS4 (Eng.). 
 *8iis S. W. 463, 467. 134 Mo. App. 685. 
 
 47McKinney v. Neil, i McLean, 540. Fed. Cas. 8865; Hegeman v. Western 
 R., 13 N. Y. 9, 24; Spade v. Lynn etc. R., 172 Mass. 488, 52 N. E. 747- 
 
 186 
 
CHAUFFEURS AND OPERATORS § 257 
 
 subordinate to the right of immunity from harm belonging to the gen- 
 eral travelers on the highway who have voluntarily assumed no risk. 
 In the absence of culpable circumstances, the law is lenient concern- 
 ing an error of judgment when a driver is surprised by a sudden peril 
 or emergency. In McFern v. Gardner*^ Presiding Judge Bland says 
 of the driver (of a horse) who was killed in an automobile accident: 
 
 "He was confronted with a sudden danger and his failure, if 
 he did fail, to exercise what might seem to others the best judg- 
 ment, was not necessarily negligent."*' 
 
 § 257. Jumping from the vehicle. — The duty of the operator at 
 times of supreme emergency and peril, is 'like that of a locomotive 
 engineer similarly situated. If the engineer deserts his station need- 
 lessly, he is clearly guilty of negligence in a degree to be measured by 
 the results of his act, and if he abandons his post when danger threatens 
 whereby the lives of others are sacrificed which he might have saved 
 by remaining, he is culpable. The same may be said of the motor ve- 
 hicle operator. In the case of Cottrill v. Chicago M. & St. P. R. Co.^" 
 the engineer had stood at his post to protect his passengers and in so 
 doing met his death. Action was brought by his representatives against 
 the railroad company to recover for pecuniary injuries, and the com- 
 pany set up that because the engineer did not "jump" he lost his life, 
 and that therefore he was guilty of contributory negligence. Mr. Jus- 
 tice Orton vigorously states the proper rule, and what he says concern- 
 ing locomotive engineers ought always to be applied to the operators 
 of motor vehicles : 
 
 "According to the common appreciation of human conduct 
 and character, this evidence presents an example of heroic 
 bravery and fidelity to duty at the post of danger, most praise- 
 worthy and commendable, and an occurrence worthy of last- 
 ing record in the book of heroic deeds. The very employment 
 of the locomotive engineer, with its manifold and sudden and 
 unexpected dangers, requires the highest type and best qual- 
 ities of true manhood, invincible bravery and great integrity; 
 
 ^8121 Mo. App. I, 13, 97 S. W. 972. 
 
 ^'See also Hause v. Lehigh Valley Transit Co., 38 Pa. Super. Ct. Reps. 614; 
 
 Lawrence v. Fitchburg etc. Ry., 201 Mass. 489, 87 N. E. 898; Cecchi v. Lindsay, 
 
 75 Atl. Repr. 376, i Boyce 185 (Del.). As to emergencies, see post, § 1088 et seq. 
 6O47 Wis 634_ 
 
 187 
 
§ 258 CHAUFFEURS AND OPERATORS 
 
 and it is but just to say that, as a rule, those who are selected 
 for and engaged in this responsible employment, possess the full 
 measure of these qualities, and the exceptions are very rare. 
 
 "They are not men likely to jump off from their locomotive 
 and run away to escape uncertain danger, or to omit any duty 
 in sudden emergencies ; and it is well that they are not. They 
 are placed in charge of one of the mighty forces of nature, held 
 in servitude by the most dangerous and intricate machinery, and 
 great skill, unremitting attention, sleepless vigilence and fear- 
 lessness of danger are required to keep them in constant control. 
 Their standard of ordinary care and prudence must be fixed 
 and measured by the dangers and responsibilities of such an em- 
 ployment, and not by the common accidents of less responsible 
 service. The question which should determine their reasonable 
 care, or want of common care, is how careful and prudent loco- 
 motive engineers would ordinarily and commonly act at such a 
 time." 
 
 And in Pennsylvania Co. v. Roney" Mr. Justice Elliott says in a 
 similar case : 
 
 "If he believes his duty requires him to do what he can to 
 save those under his charge, and he braves death in the discharge 
 of that duty, the law has for him no censure,but has, on the con- 
 trary, high commendation and respect." 
 
 The doctrine of the cases quoted should not be limited to the passen- 
 gers within the car, but should be applied for the benefit of other 
 travelers upon the highway. 
 
 § 258. Responsibilty of taxicab, etc., drivers.^"— Writers some- 
 times remark that there is a greater degree of care required of the 
 driver of a vehicle of public or quasi public character, than is demanda- 
 ble of the person in similar position with regard to a private convey- 
 
 The use of the expression "degree of care" in this connection is un- 
 warranted. There may be expected a shade greater skill and compe- 
 tency on the part of the former than on that of the latter, but this can 
 hardly rise to the dignity of a "degree" of care. Both classes of 
 drivers are held to reasonable prudence and skill accordmg to the 
 
 eigp Ind. 453, 4S6- 
 
 oaSee §§ 248, 1229, 1243. 
 
 630Uphant, on Horses, 6 Ed. 317; Nellis, on Surface Railroads, 399- 
 
 188 
 
CHAUPFUUKS AND OPERATORS § 259 
 
 exigencies of their surroundings, but the professional may be required 
 to exercise a higher quality of discretion and judgment than the non- 
 professional. Thus the chauffeur of a taxicab or of a sight-seeing 
 motor omnibus, will naturally be held to the exercise of more abun- 
 dant caution and to the exhibition of a finer skill, than perhaps would 
 be required of the operator of a private vehicle. And this upon the 
 theory that by reason of his greater experience, constant practice and 
 semi-public character, he is expected to exhibit the highest attainable 
 dexterity. This view seems to be in line with the distinction drawn 
 by the Massachusetts motor vehicle act between operators generally 
 and chauffeurs (A. 1909, c. 534), giving to the latter a semi-public 
 character, special licenses being given to them, special attainment and 
 experience demanded of them, and the minimum licensing age being 
 two years greater than that of "operators." 
 
 § 259. Contributory negligence of chauffeur. — By reason of the 
 experience and knowledge of possible dangers which he is presumed 
 to have, and the responsibility with which he is charged, the doctrine 
 of contributory negligence will be more severely applied to the operator 
 than to his passengers, on the occurrence of accident. In the case of 
 Spencer v. New York Central, Etc., Ry." the plaintiff was a chauffeur 
 driving a touring car containing several passengers, among them a 
 man (Read) and a girl sixteen years of age (Noakes). On approach- 
 ing a railroad track and while one hundred and seventy-five feet away, 
 the road commanded a good view. Plaintiff looked but saw no train. 
 He did not look again until close to the track where, for the first time 
 he observed its proximity, and thereupon increased his speed in an at- 
 tempt to cross ahead of the train, in which he failed. The passenger, 
 Read, was killed, and the passenger, Noakes, and plaintiff were in- 
 jured. 
 
 Noakes obtained judgment against the railroad company.^^ In 
 Spencer's case, the court held that being the chauffeur, forty years of 
 age, in full possession of his faculties, he was guilty of contributory 
 negligence and this though his passenger, Noakes, was not.^" 
 
 "123 N. Y. App. Div. 789, 108 N. Y. S. 245. 
 
 BSNoakes v. N. Y. Central R., 121 N. Y. App. Div. 716, 106 N. Y. Supp. 522.. 
 See post, § 990 et seq. 
 
 5«See also New York Central R. R. v. Maidment, 168 Fed. Repr. 21, 93 C. C. A. 
 413, 21 I,. R. A. N. S. 794- 
 
 189 
 
§ 26o CHAUFFEURS AND OPERATORS 
 
 § 260. Demanding or accepting a commission or bonus. — "Good 
 faith" says Mr. Tiffany,^** "demands that an agent shall not with- 
 out the knowledge and consent of the principal, make any profit out 
 of the agency, beyond his stipulated compensation. * * * All 
 profits belong to the principal, and must be accounted for." In Story 
 on Agency" it is said: "Where the profits are made by a violation 
 of duty, it would be obviously unjust to allow the agent to reap the 
 fruits of his own misconduct." If, therefore, the chauffeur, under 
 general or special instructions to purchase supplies or order repairs, 
 demands or accepts a "commission" or bonus or other fee or reward, 
 from the person to whom the order is given or from whom the purchase 
 is made, he is guilty of a reprehensible violation of his duty to his em- 
 ployer. In some states, by statute, such practice is made a misde- 
 meanor. The New York Penal Code on this point is quoted in the note 
 below.^' 
 
 In General Tire Repair Co. v. Price'' the plaintiffs had, unbeknown 
 to defendant, given the defendant's chauffeur a commission of five per 
 cent, upon bills for supplies and repairs furnished by them to the de- 
 fendant. In deciding the case, the court call attention to the section 
 of the New York Penal Code prohibiting such acts and declaring them 
 to be a misdemeanor. It was held that the contract between the plain- 
 tiff and the defendant was void upon the ground of public policy, being 
 tainted by criminal act, which left the matter in the position that both 
 plaintiff and chauffeur were indictable for the commission of a crime, 
 and the General Tire Repair Company in addition, was unable to collect 
 its bill. 
 
 68aOn Agency, p. 422. 
 
 s'pth ed., sec. 207. , 
 
 58N0TE— New York Penal Code, § 384r: "An agent, employe or servant, who, 
 being authorized to procure materials, supplies or other articles, either by pur- 
 chase or contract, for his principal, employer or master, or to employ service or 
 labor for his principal, employer or master, receives directly or indirectly, for 
 himself or for another, a commission, discount or bonus from the person who 
 makes such sale or contract, or furnishes such materials, supplies or other 
 articles or from a person who renders such service or labor; and any person 
 who gives or offers such an agent, employe or servant such commission, discoun 
 or bonus shall be guilty of a misdemeanor, and shall b^ punished by a fine of not 
 less than ten dollars nor more than five hundred dollars, or by such fine and by 
 imprisonment for not more than one year." 
 
 59IIS N. Y. Supp. 171- 
 
 190 
 
CHAUFFEURS AND OPERATORS § 261 
 
 § 261. Ordering supplies and repairs. — A chauffeur, by virtue of 
 his position has no authority to contract for general repairs. In cases 
 of sudden or unexpected breakdown, or "road trouble," he may bind 
 his employer in ordering such repairs of a temporary character, or 
 necessary supplies, as will enable him to continue his journey, but he has 
 at no time, implied authority to make contracts for repairs of a general 
 or permanent nature."" 
 
 § 262. Placing car in storage. — It is the chauffeur's duty, in case 
 of a breakdown upon the road, to put his employer's car for safe keep- 
 ing in some proper place, and the employer will be responsible for the 
 proper expense of storage."^ 
 
 § 263. License obtained by Concealing Disability. — The failure 
 of an applicant for a license to disclose his physical incapacity as^ re- 
 quired by law does not of itself render the hcense void nor render the li- 
 censee a trespasser upon the highway. While the failure of an ap- 
 plicant to make such disclosure might be ground for revoking his li- 
 cense still, having been regularly issued it is valid unless and until 
 revoked by proper authority."^ 
 
 § 264. Unlicensed Operators. — The failure of an operator of a 
 motor vehicle to procure a license as required by law is not of itself 
 negligence but is evidence of negligence of the operator."^ 
 It is no defense that the plaintiff's driver was not licensed.'* 
 The falure of an operator to have a license does not of itself render 
 him a trespasser on the highway and thus prevent his recovery for the 
 negligence of another. If the failure to have a license were a cause 
 contributing directly to the injury as in case of an inexperienced per- 
 son this would preclude recovery but if the illegal quality of the act 
 had no tendency to cause the accident, as where the license of an ex- 
 perienced driver had expired this does not prevent recovery for the. 
 negligence of another,'^ and also of his employer. Where a chauffeur 
 had an operator's license but had not written his name upon it as re- 
 quired by law and had no special chauffeur's license as required by law 
 
 ""Gage V. Callanan, 109 N. Y. Supp. 844, 57 Misc. 479. 
 «iGage V. Callanan, 109 N. Y. Supp. 844, 57 Misc. 479. 
 620'Hare v. Gloag, 221 Mass. 24, 108 N. E. 566. 
 s^Holland v. Boston, 213 Mass. 560, 100 N. E. 1009. 
 6*Porter v. Jacksonville Electric Co., 64 Fla. 409, 60 So. 188. 
 65Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. N. S. 701 note, 
 2 N. C. C. A. 318, 6 N. C. C. A. 317- 
 
 191 
 
§ 26s CHAUFFEURS AND OPERATORS 
 
 he was acting unlawfully in driving an automobile and this is evidence 
 not only of his negligence but of negligence of those who employ him.°° 
 
 One who employs an unlicensed driver is not in a worse position 
 than the driver himself but the fact that the driver is not licensed is 
 merely evidence of negligence."'' 
 
 This is the rule even in Massachusetts which has gone farther than 
 other states by holding that failure to register an automobile renders it 
 a trespasser on the highway .^^^ 
 
 "The fact that the number of punishable misdemeanors has multiplied 
 many times in recent years as the relations of men in business and so- 
 ciety have grown complex with the increase of population is a reason 
 why the violation of a criminal statute of slight importance should 
 not affect one's civil rights except when this violation viewed in refer- 
 ence to the criminality intended to be punished has had a direct effect on 
 his cause of action." Per Knowlton, C. J.°° 
 
 The failure of an operator to procure a license must have contributed 
 to the accident and where it appears that possession of a license did not 
 insure or even tend to show skill on the part of the operator therefore 
 the absence of a license does not show the contrary."' 
 
 § 265. Driver "accompanied by" licensed operator. — A statute al- 
 lowing an unlicensed operator to drive an automobile "if riding with or 
 accompanied by" a licensed person does not necessarily mean that the 
 unUcensed operator shall be under the legal control of the licensed per- 
 son, but the statute contemplated proximity suificient to enable the 
 licensed operator to maintain such supervision as might be necessary for 
 safety and to render assistance, if need be, with reasonable promptness. 
 Where the unlicensed operator is a person of great skill and experience 
 
 «8Conroy v. Mather, 217 Mass. 91, 104 N. E. 487. 52 L- R- A. N. S. 801, 9 N. 
 C. C. A. 837- 
 
 67Conroy v. Mather, 217 Mass. 91, 104 N. E. 487, S2 L. R. A. N. S. 801 note, 
 9 N. C. C. A. 837- 
 
 87aAs to unregistered automobiles on the highway see §§ 1086, 1087. 
 
 ssBourne v. Whitman, 209 Mass. 15S, 95 N. E. 404, 35 L- R- A. N. S. 701 note, 
 2 N. C. C. A. 318, 6 N. C. C. A. 317. 
 
 e9Lindsay v. Cecchi, 24 Del. (i Boyce) 185, 80 Atl. 523, i N. C. C. A. 88, 75 
 
 Atl. 376- 
 
 192 
 
CHAUFFEUES AND OPERATORS § 266 
 
 the supervision and proximity required need not be as close as in ordi- 
 nary cases.'" 
 
 § 266. Age limit for operator. — Where a statute provides that no 
 person shall have a license to operate unless he is over eighteen years 
 of age but that any person sixteen years of age or more may operate 
 if accompanied by a licensed operator, the age of sixteen is the age 
 fixed by law within the terms of a liability policy that the policy shall 
 not apply while the automobile is driven under the age fixed by law. 
 This is so although the car was actually being driven at the time of the 
 accident by a boy of sixteen when not accompanied by a licensed 
 operator.''^ 
 
 '"Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. N. S. 701 note, 
 2 N. C. C. A. 318, 6 N. C. C. A. 317. 
 
 Meaning of requirement that operator is to be accompanied by licensed oper- 
 ator. See supra, § 32. 
 
 "Brock V. Travelers Ins. Co., 88 Conn. 308, 91 Atl. 279 
 
 13 
 
CHAPTER XIV. 
 
 HIGHWAYS 
 
 I. CoNTKOI, BY LEGIStATUKE 
 
 § 267. Highways defined. 
 
 268. Paved street includes "planked" street. 
 
 269. Causeway not a bridge. 
 
 270. Control of highways an exercise of the "police power." 
 
 271. Extent of the legislative supervision. 
 
 272. Power of control means power to regulate use. 
 
 273. Legislative power to exclude. 
 
 274. Legislative control of highways includes street?, parks and public places 
 
 in cities and towns. 
 
 § 267. Highways defined.^— An old definition of highways, was : 
 "any thoroughfare which is open to all the King's subjects."^ In Ameri- 
 ca the idea is thus expressed: "Highways are public roads, which 
 every citizen has a right to use."^ At sec. 76, it is said by the author 
 last referred to : 
 
 "It has ever been the persuasion of mankind, that one of the 
 principal powers, and one of the imperative duties of the sover- 
 eign power of a state is to provide for the wants of the com- 
 munity as well as for its own immediate emergiencies, means ol 
 facilitating communication between distinct localities, both rural 
 and urban." 
 
 The words "any public highway" as used in an automobile statute 
 indicate any kind of a highway lawfully dedicated to public use whether 
 it be a state road, county road, street or alley.* 
 
 § 268. Paved street includes "planked" street. — ^An ordinance 
 fixing a maximum speed on a paved street includes a "planked" street. 
 Paving is a general term and may include paving of any kind whether 
 
 ipor definitions of ways set apart for travel, see Appendix B. 
 sWellbeloved, on Highways, p. i ; Pratt & Mack., on Highways, 15th ed., p. 1. 
 ^Angell, on Highways, 3d ed., sees. 2, 327. 
 *Forgy V. Rutledge, 167 Ky. 182, r8o S. W. go. 
 
 194 
 
CONTROI< BY I,I;gISIvATURB § 269 
 
 of brick, stone, asphalt, wood or planking. It includes any artificial 
 substance placed on a street to form an artificial roadway.' 
 
 § 269. Causeway not a bridge. — A causeway or fill across a low 
 place three hundred feet long with a culvert in it for a brook to pass 
 under is not a "bridge" within the meaning of a highway statute re- 
 quiring a speed of not over ten miles an hour." 
 
 § 270. Control of highways an exercise of the "police power."^ — 
 The legislature's control over the highways grows out of its duty to ad- 
 minister the "police power," which has for its primary object, the public 
 safety, order and welfare : 
 
 "And it exercises its compulsory powers for the prevention and 
 anticipation of wrong by narrowing common law rights through 
 conventional restraints and positive regulations which are not 
 confined to the prohibition of wrongful acts. It is this latter kind 
 of state control which constitutes the essence of the police power. 
 The maxim of this power is that every individual must submit 
 to such restraints in the exercise of his liberty or of his rights 
 of property as may be required to remove or reduce the danger 
 of the absence of these rights on the part of those who are 
 unskilful, careless or unscrupulous."' 
 
 One potent reason for laws regulating the use of highways by motor 
 vehicles is the damage done to the roadbed by heavy vehicles driven 
 at high speed." 
 
 § 271. Extent of the legislative supervision. — In People v. 
 Walsh,^" the court say: 
 
 "The legislature represents the public. So far as concerns the 
 public, it may authorize one use to-day and another and different 
 use to-morrow. If the new use affects private rights, proceed- 
 
 "Heath v. Seattle Taxicabi Co., 73 Wash. 177, 131 Pac. 843, s N. C. C. A. 189. 
 
 «Coffin V. Laskan, 89 Conn. 325, 94 Atl. 370, L. R. A. igisE, 959. 
 
 ^See §§ 26 et seq., consideration of the police power. 
 
 Bpreund, Police Power, sec. 8. See also Missouri Pac. Ry. v. Humes, 115 U. 
 S. 512, S22. 
 
 'Injuries to road-bed by motor vehicles. In McCarter v. Ludlum, 71 N. J. Eq. 
 330, 63 Atl. 761, the court considers and compares with horse-drawn vehicles, the 
 effect of a traction engine upon the road-bed. The remarks of the Vice Chan- 
 cellor are instructive as bearing upon the controversy concerning the degree of 
 injury to which motor vehicles subject the highways. 
 
 "96 111. 232. 
 
§ 272 HIGHWAYS 
 
 ings for condemnation may have to be invoked ; but so far as it 
 affects the public alone, its representative in the absence of con- 
 stitutional restraint, may do as it pleases." 
 
 The most familiar illustration of the exercise of legislative control 
 of highway use is supplied by those statutes expressing the "Law of the 
 Road."" 
 
 Such enactments exist in most of the states, and while in general 
 they express nothing different from what is sanctioned by custom, they, 
 at the same time, evidence the supremacy of the legislature. 
 
 The right to use the highway is not an absolute right but is one 
 subject to legislative regulation.^^ 
 
 § 272. Power of control means power to regulate use. — In 
 Fletcher v. Dixon," Chief Justice Boyd, speaking of the operation of an 
 automobile in the highway, says : 
 
 "The legislature has the undoubted right to regulate the speed 
 and provide other reasonable regulations as to its use." 
 
 In Radnor Township v. Bell," Mr. Justice Orlady says : 
 
 "The legislature, in order to preserve the rights of the public 
 in the highways and, through the powers delegated to them, the 
 municipalities, have prescribed rules the validity of which have 
 been confirmed by numberless decisions, requiring the number- 
 ing of machines, licensing the driver, regulating the speed of 
 vehicles, restricting the time of having parades-and processions, 
 setting aside certain parts for particular uses, signaling by bells 
 and lights, regulating the weight and character of load, and many 
 similar limitations ; each restriction having in view the welfare 
 of the public, so that all may safely and sanely use the highways 
 in the enjoyment of equal rights thereon." 
 
 § 273. Legislative power to exclude.— The power to regulate im- 
 plies power to prohibit, that is to say, to exclude certain uses from 
 particular ways, or to limit the character of travel thereon. In Com- 
 monwealth V. Kingsbury," speaking of the power of the legislature 
 
 iiRevised Laws of Massachusetts, chap. 54- See Chapter XVIII, on Law of 
 the Road, and Appendix A. 
 isCIeary v. Johnston, 74 N. J. 49, 74 Atl. 538. 
 13107 Md. 420, 426, 68 Atl. 87s. 
 1*27 Pa. Super. Ct. i, 6. 
 1B199 Mass. 542, 8s N. E. 848, 127 Am. St. Rep. siS- ...' 
 
 196 
 
CONTROL BY L^GISI/ATURE § 274 
 
 to exclude motor vehicles from the highway, Mr. Chief Justice Knowl- 
 ton, in writing the opinion of the Supreme Court, says : 
 
 "The right of the legislature, acting under the police power, to 
 prescribe that automobiles shall not pass over certain streets or 
 public ways in a city or town, seems to us well established both 
 upon principle and authority."^* 
 
 This power was well tested and sustained in a recent Maine case 
 where it was held that a statute is constitutional which provides that 
 automobiles shall not be used on the highways in certain towns if the 
 towns so voted even though towns so voted through which the inhabi- 
 tants of certain other towns which did not accept the act must pass to 
 reach other parts of the state. The legislature has here determined that 
 the statute is in the interest of public safety and its judgment cannot 
 be reviewed by the court. In this case the legislation applied to Mt. 
 Desert Island with steep, narrow, winding roads where the legislature 
 might well think automobiles to be dangerous to travel. The town 
 which did not accept the act could be reached by a line of steamboats.^' 
 § 274. Legislative control of highways includes streets, parks 
 and public places in cities and towns. — "The legislature of the State 
 represents the public at large, and has, in the absence of special con- 
 stitutional restraint, and subject (according to the weight of more 
 recent judicial opinion) to the property rights and essentials of the 
 abutting owner, full and paramount authority over all public ways and 
 public places. 'To the Commonwealth here,' says Chief Justice Gibson, 
 "as to the king of England, belongs the franchise of every highway as 
 a trustee for the public; and streets regulated and repaired by the 
 authority of a municipal corporation are as much highways as are 
 rivers, railroads, canals, or public roads, laid out by the authority of the 
 quarter sessions.' "^* 
 
 I'See also Walker v. Commonwealth, 40 Pa. Super. Ct. 638, 1909, and ante, 
 § 167. 
 
 Instate V. Phillips, 107 Maine 249, 78 Atl. 283. 
 
 isDillon's Mun. Corp., 4th ed., sec. 656; Elliott on Roads and Streets, 2d ed., 
 sees. 22, 421 ; Fort Smith v. Scruggs, 70 Ark. 549, 553, 69 S. W. 679 ; City of 
 Terre Haute v. Kersey, 159 Ind. 300, 64 N. E. 469 ; Radnor Township v. Bell, 27 
 Pa. Super. Ct. i, 1904. 
 
 197 
 
§ 275 HIGHWAYS 
 
 In City of St. Louis v. Green/' the court says : 
 
 "That the streets of the city are highways of the State, and 
 therefore public roads which every citizen has a right to use, is 
 a vaHd argument against stopping or unreasonably hindering 
 travel over the streets, but it is no argument at all against sub- 
 jecting travel over those streets to rule and regulations." 
 
 Commonwealth v. Davis, ^" was a case involving the right of a citizen 
 to make use of "Boston Common" without a permit from the city 
 authorities. The court, by Mr. Justice Holmes, say : 
 
 "There is no evidence before us to show that the power of the 
 legislature over the Common is less than its power over any other 
 park dedicated to the use of the public, or over public streets the 
 legal title of which is in a city or town. Lincoln v. Boston, 148 
 Mass. 578, 580. As representative of the public it may and does 
 exercise control over the use which the public may make of 
 such places, and it may, and does, delegate more or less of such 
 control to the city or town immediately concerned. For the 
 legislature absolutely or conditionally to forbid public speaking 
 in a highway or public park is no more an infringement of the 
 rights of a member of the public than for the owner of a private 
 house to forbid it in his house. When no proprietary right inter- 
 feres, the legislature may end the right of the public to enter 
 upon the pubUc place by putting an end to the dedication to pub- 
 lic uses. So it may take the lesser step of limiting the public use 
 to certain purposes. See Dillon, Mun. Corp. (4th Ed.), Sees. 
 393, 407, 651, 656, 666; Brooklyn Park Commissioners v. Arm- 
 strong, 45 N. Y. 234, 243, 244." 
 
 The principles stated in the preceding sections are sustained in 
 numberless decisions. The cases cited in addition to those quoted, are 
 referred to because they are motor vehicle cases, and have therefore, 
 a peculiar value:" 
 
 II. Right of Motor Vehici,es to Use Highway 
 
 § 27s. Right of public to use highway. 
 
 276. Purpose of the use. 
 
 277. Right to use highways— A leading case. 
 
 19; Mo. App. 468, 475- 
 
 2»i62 Mass. Sio, SIX, 39 N. E. 113, 26 L. R. A. 712-, 44 Am. St. Rep. 389- 
 2iChicago V. Banker, 112 111. App. 94; Com. v. Densmore, 29 Pa. Co. Ct. Reps. 
 217; Christy V. Elliott, 216 111. 31. 74 N. E. 103S; Com. v. Boyd. 188 Mass. 79. 
 
 198 
 
USE OF HIGHWAY § 275 
 
 278. The right of motor vehicles to use the highways. 
 
 279. Right to stand on highway. 
 
 280. No superior right. 
 
 281. Mutual rights of automobiles and bicycles. 
 
 282. Prior use of highway no effect on rights of motor vehicles. 
 
 283. The effect of violation of law. 
 
 284. Duty of owner in case of breakdown. 
 
 § 275. Right of public to use highway.^^ — In Morton v. Moore,^^ 
 the Supreme Court of Massachusetts, by Mr. Justice Morton, says : 
 
 "The right of the pubHc in a common highway is paramount 
 and controlHng. This right extends to the entire territory 
 within its limits ; and an obstruction placed upon any part of it 
 constitutes a public nuisance. Commonwealth v. King, 13 
 Met. 115." 
 
 "A public highway," said Mr. Justice Pennewill, in charging the 
 jury in Simeone v. Lindsay,^.* "is open in all its length and breadth to 
 the reasonable, common, and equal use of the people, on foot or in 
 vehicles." In Cheney v. Barker,-^ Mr. Justice Sheldon remarks : 
 
 "Our roads or public ways are established for the common 
 good and for the use and benefit of all the inhabitants of the 
 Commonwealth. Hodgdon v. Haverhill, 193 Mass. 406, 410, 79 
 N. E. 830; Prince v. Croker, 166 Mass. 347, 44 N. E. 446."^° 
 
 § 276. Purpose of the use. — ^^The title of the public in the high- 
 way is that of an easement for "passage and re-passage," that is to 
 say, it is a right to use for purposes of travel. The right of no one 
 is exclusive, but is to be exercised with regard to the equal right of 
 every one else. It is a right which each enjoys in common with all 
 
 74 N. E. 2SS; Morris v. Interurban St. Ry., 100 N. Y. App. Div. 295, 300, 91 
 N. Y. S. 479 ; Unwen v. State, 73 N. J. Law 529, 64 Atl. 163 ; Brazier v. Phila- 
 delphia, 21S Pa. St. 297, 64 Atl. S08; State v. Swagerty, 203 Mo. 517, 102 S. W. 
 483; People ex rel. Hainer v. Prison Keeper, 190 N. Y. 315, 83 N. E. 44; Com. 
 V. Kingsbury, icg Mass. 542, 85 N. E. 848; Hall v. Compton, 130 Mo. App. 67s, 
 108 S. W. 1 122; Walker v. Commonwealth, 40 Pa. Super. 638. 
 
 ''^See § 331 et seq. 
 
 2»8i Mass. 573, 576. 
 
 "6 Pen. 244, 6s Atl. Repr. 778 (Del.). 
 
 2=ig8 Mass. 356, 362, 84 N. E. 492. 
 
 28To the same effect are Walker v. Commonwealth, 40 Pa. Super. 638, 1909, 
 and Haynes Automobile Co. v. Sinnett, 91 N. E. Repr. 171, 46 Ind. App. no. 
 
 199 
 
§ 277 HIGHWAYS 
 
 his fellow citizens. The subject is clearly summarized in the Pennsyl- 
 vania motor vehicle case of Radnor Township v. Bell," where the 
 court say: 
 
 "The right in the public to use the highways is the right to use 
 them for the purposes of travel and commerce by any method 
 not of itself calculated to prevent a reasonably safe use of the 
 highway by others. The rights of all travelers on the highway 
 are reciprocal. The law of the road requires that every man 
 restrain the speed of his vehicle within such bounds as will not 
 endanger others, considering the place and circumstances. The 
 roads are open and free to all on equal terms — that is to all com- 
 plying with the reasonable regulations of the duly constituted 
 authorities. 
 
 "The fundamental idea of a highway is not only that it is pub- 
 lic, but that it is public for free and unmolested passage thereon 
 by all persons desiring to use it — all the inhabitants of the said 
 township, and of all other good citizens of the Commonwealth 
 going, returning, passing and repassing, in, along, and through 
 the highway. The use of a highway is not a privilege, but a 
 right, limited by the rights of others and to be exercised in a 
 reasonable manner." 
 
 § 277. Right to use highways — a leading case. — The following 
 opinion is presented in full because of the eminence of its author and, 
 though written many years before the motor vehicle of to-day was 
 thought of, because it so fully presents the law of the subject; Ma- 
 comber V. Nichols^^ : 
 
 Opinion by Cooley, Ch. J. 
 
 "This is an action on the case, in which Nichols sought to re- 
 cover for an injury occasioned by his horse taking fright as he 
 was driving along a public highway near Battle Creek about nine 
 o'clock in the evening of September 9, 1874. The fright was 
 caused by an engine mounted on wheels, which the defendant 
 was moving along the same highway by means of the steam 
 power by which it was operated. The engine was used mainly 
 for threshing and was moved from place to place for that pur- 
 pose. The traveled part of the highway at the place of the acci- 
 dent was about 30 feet in width, and Macomber gave evidence 
 tending to show that he was moving on the extreme right of this 
 
 2727 Pa. Super. Ct. i, 5. 
 2S34 Mich. 212. 
 
 200 
 
USE OF HIGHWAY § 277 
 
 traveled way, and that he shut off steam and stopped the engine 
 when the horse was seen approaching. Each party claimed to 
 be free from negligence himself and charged negligence upon 
 the other. * * * 
 
 "It is hardly probable that when the circuit judge told the jury 
 that no person has a right to impede or render dangerous the 
 travel of the highway by any other person, he intended them to 
 understand this language literally and without qualification. Al- 
 most any proper use of a highway may under some circum- 
 stances impede the use by another, and possibly render it danger- 
 ous. The appearance of any unusual object in the streets may 
 have some tendency to add to the dangers of travel by means of 
 horses or other animals, and there is always more or less danger 
 that a high-spirited horse or indeed any other horse, may become 
 unmanageable, and people who are using the highway be ex- 
 posed to risk in consequence. But it does not follow that the 
 driver of such a horse is responsible for the consequences because 
 of his bringing him into the street impeding or rendering danger- 
 ous the travel by others. The question is one of reasonable use 
 and reasonable care, and if these are observed he is not charge- 
 able. Probably the circuit judge did not intend to be understood 
 as going beyond the requirement of reasonable care and caution 
 on the part of all persons making use of the public ways ; and 
 this instruction, if it stood alone, would not have been likely to 
 mislead. 
 
 "But the instruction that any one placing upon the highway a 
 vehicle unusual, and calculated from its appearance and mode 
 of locomotion to frighten horses of ordinary gentleness, is liable 
 for all danmages resulting therefrom, is not only erroneous, but 
 it could not fail to mislead. It was an instruction in substance, 
 that the placing of such a vehicle in the highway is always, and 
 under all circumstances, an illegal act, a wrong in itself, for 
 which an action will lie on behalf of any one who may chance to 
 be injured in consequence. 
 
 "Injury alone will never support an action on the case ; there 
 must be a concurrence of injury and wrong. If a man does an 
 act that is not lawful in itself he cannot be held responsible for 
 any resulting injury unless he does it at a time or in a manner or 
 under circumstances which render him chargeable with a want 
 of proper regard for the rights of others. In such a case the 
 negligence imputable to him constitutes the wrong, and he is ac- 
 countable to persons injured, not because damage has resulted 
 from his doing the act, but because its being done negligently 
 or without due care has resulted in injury. If the act was not 
 wrongful in itself, the wrong must necessarily be sought for in 
 
 201 
 
§ 277 HIGHWAYS 
 
 the time or manner or circumstances under which it was per- 
 formed; and injury does not prove the wrong, but only makes 
 out the case for redress after the wrong is estabHshed. 
 
 "Persons making use of horses as the means of travel or traffic 
 by the highways have no rights therein superior to those who 
 make use of the ways in other modes. It is true that locomotion 
 upon the public roads has hitherto been chiefly by means of 
 horses and similar animals, but persons using them have no 
 prescriptive rights, and are entitled only to the same reasonable 
 use of the ways which they must accord to all others. Improved 
 methods of locomotion are perfectly admissible, if any shall be 
 discovered, and they cannot be excluded from the existing public 
 roads, provided their use is consistent with the present methods. 
 
 "A highway is a public way for the use of the public in general, 
 for passage and traffic, without distinction — Starr v. C. & A. 
 Railroad Co., 4Zab. 597, 24 N.J.L. 592. The restrictions upon its 
 use are only such, as are calculated to secure to the general public 
 the largest practicable , benefit from the enjoyment of the ease- 
 ment, and the inconveniences must be submitted to when they are 
 only such as are incident to a reasonable use under impartial reg- 
 ulations. When the highway is not restricted in its dedication to 
 some particular mode of use, it is open to all suitable methods; 
 and it cannot be assumed that these will be the same from age to 
 age, or that new means of making the way useful must be ex- 
 cluded merely because their introduction may tend to the incon- 
 venience or even to the injury of those who continue to use the 
 road after the same manner as formerly. A highway established 
 for the general benefit of passage and traffic must admit of new 
 methods of use whenever it is- found that the general benefit re- 
 quires them, and if the law should preclude the adaptation of the 
 use to the new methods, it would defeat, in greater or less degree, 
 the purpose for which highways are established. 
 
 "It is not long since the great highways by water were sup- 
 posed to be of such transcendental importance as to entitle those 
 who made use of them to superior rights over those making use 
 of other highways which might intersect them. Accordingly 
 bridges over navigable waters, when permitted at all, were re- 
 quired to be so constructed as to secure to vessels an uninter- 
 rupted passage, and the travel and traffic by land was compelled 
 to await the convenience of travel and traffic by water. But this 
 rule was never inflexible ; it was a rule that must yield to cir- 
 cumstances ; and it was never a matter of course that the master 
 of a vessel was entitled to a remedy as for a legal injury when 
 the convenience of one making use of a bridge was preferred 
 to his. The case was one in which rights must be harmonized, 
 the unavoidable inconveniences to one party or the other must 
 
 202 
 
USE OF HIGHWAY § 277 
 
 be submitted to as something inseparable from any employment 
 of the powers of government to provide or regulate the channels 
 for travel and commerce. 
 
 "There may be, in any case in which a highway by land inter- 
 sects a highway by water, questions of difficulty as to whether, 
 in view of all the circumstances, the one or the other is of the 
 greater importance and whether the general public would be 
 better accommodated by compelling those making use of the 
 one to submit to temporary inconvenience for the accommodation 
 of those passing or moving property by the other; or, on the 
 other hand, by recognizing in the former such paramount rights 
 as are not to be narrowed or encroached upon by any rights 
 possessed by the latter. Over unimportant streams a bridge 
 may do far more to accommodate the public than the navigable 
 privilege ; and the unreasonableness of a refusal to recognize the 
 fact when legal rights are found to depend upon it, is very mani- 
 fest. The paramount rights which have been asserted on behalf 
 of vessel owners as against railroad companies have been very 
 distinctly denied, the court holding that they must submit to any 
 incidental inconvenience that may be inseparable from allowing 
 to the public the benefit of improved locomotion by land. Works 
 V. Junction R. R., 5 McLean, 425, 438 ; Spooner v. McConnell, 
 I McLean, 337, 379; Jolly v. Terre Haute Bridge Co., 6 Mc- 
 Lean, 237, 242 ; Miss. & Mo. R. R. Co. v. Ward, 2 Black. 485. 
 It follows that a bridge over a navigable stream is not of neces- 
 sity a nuisance; it may or may not be such, according to the 
 circumstances ; and the vessel owner who brings his suit for an 
 injury occasioned by it must show the circumstances which make 
 the injury fairly chargeable to some one as a wrong. 
 
 "But the bringing of an unsightly object into the common 
 highway is no more of a wrong because of its tendency to fright- 
 en horses of ordinary gentleness, than is the construction of a 
 bridge over a river a wrong because of its tendency to delay 
 vessels. 
 
 "The one may be a wrong under some circumstances, and so 
 may the other, but it is equally true that both may be proper and 
 lawful under other circumstances. It would be difficult to pass 
 through the streets of our large towns without encountering 
 objects moving along them which are well calculated to frighten 
 horses of ordinary gentleness until they become accustomed to 
 them, and which nevertheless, are used and moved about for 
 proper and lawful purposes. The steam engine for protection 
 against fire may be mentioned as one of these ; and though this 
 is usually owned and moved about by public authority, there 
 can be no doubt of the right of a private individual to keep 
 
 203 
 
§ ^17 
 
 HIGHWAYS 
 
 and use one for his own purposes, and to take it through the 
 streets when necessary. But other things which are sometimes 
 moved about on wheels along the streets are equally alarmino- 
 to horses when first used. Wild animals collected and moved 
 about the country for exhibition are always more or less likely to 
 frighten domestic animals, but they may nevertheless be lawfully 
 taken on the public highways under proper precautions. 
 
 "It has just been remarked by the Supreme Court of Illinois 
 in a case involving the right to make use of steam as a means of 
 locomotion in the public streets, that 'a street is made for the 
 passage of persons and property, and the law cannot define what 
 exclusive means of transportation and passage shall be used.' 
 'To say that a new mode of passage shall be banished from the 
 streets, no matter how much the general ^ood may require it, 
 simply because the streets were not so used in the days of Black- 
 stone, would hardly comport with the advancement and enlight- 
 enment of the present age.' Moses v. P., F. W. & C. R. R. Co., 
 21 111. 516, 523. In some of the large cities of the country suf- 
 ficient means of transit by the old methods have become practi- 
 cally out of the question, and steam power is permitted as a mat- 
 ter of necessity, not only as a means of moving vehicles by the 
 side of teams in the street, but also over their heads, where the 
 liability to cause fright would perhaps be still greater. Horses 
 of ordinary gentleness would at first be liable to take fright, but 
 after a time they become accustomed to the objects that at first 
 are fearful to them just as in the country they become accustomed 
 to see trains of cars passing near them along the ordinary rail- 
 ways, which sometimes for a considerable distance run in im- 
 mediate proximity to the common roads. 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 nui- 
 sance from his tendency to shy and be frightened by unaccus- 
 tomed objects, as to regard the locomotive as a public nuisance 
 from its tendency to frighten horses. The use of the one may 
 impose upon the manager of the other the obligation of additional 
 care and vigilence beyond what would otherwise be essential, 
 but only the paramount authority of the legislature can give to 
 either the owner of the horse, or the owner of the locomotive ex- 
 clusive privileges. If one in making use of his own means of 
 locomotion is injured by the act or omission of the other, the 
 question is not one of superior privilege, but it is a question 
 whether, under all the circumstances, there is negligence im- 
 putable to some one, and if so, who should be accountable for it. 
 
 "In the circuit court instructions were given on the subject of 
 mutual negligence, which are probably unexceptionable; but 
 
 204 
 
USB OF HIGHWAY § 278 
 
 which seem to have been entirely unimportant because other in- 
 structions, which treated the use of the engine in the public 
 highway as unlawful, necessarily disposed of the case. 
 
 "We think the instructions last mentioned were erroneous. 
 The engine as a means of locomotion in the highway was not 
 necessarily a nuisance. It might possibly be a nuisance at some 
 times, and under some circumstances, and even where it might 
 be proper to make use of it the manager or owner might be liable 
 to da:mages for negligence in management to the injury of others. 
 But the question in any such case must be one of fact ; a ques- 
 tion of reasonable conduct and management on the part of both 
 parties; and should be submitted to the jury as such."^° 
 
 § 278. The right of motor vehicles to use the highways. — When 
 the automobile first made its appearance, its character as a vehicle was 
 doubted and its right to use the highway assailed. All such questions 
 have now been settled by legislative enactment and judicial determin- 
 ation. It has come to be recognized and admitted that any method of 
 locomotion may be used, if not, of itself, calculated to prevent a reason- 
 ably safe use of the highway by others.'" 
 
 29Quoted § 282. 
 
 '"Connecticut— Upton v. Windham Township, 75 Conn. 288, S3 Atl. 660, 96 
 Am. St. R. 197- 
 
 Delaware — Simeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 778. 
 
 Illinois— Christy v. Elliott, 216 111. 31, 74 N. E. 1035; Chicago v. Banker, 112 
 111. App. 94; Molway V. Chicago, 239 111. 486, 88 N. E. 484. 
 
 Indiana— Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 N. E. 615; Brink- 
 man V. Pacholke, 41 Ind. App. 662, 84 N. E. 762, 764. 
 
 Iowa — House v. Cramer, 134 Iowa 374, 112 N. W. 3. 
 
 Kentucky— Shinkle v. McCuUough, 116 Ky. 960, 965, 77 S. W. 196. 
 
 Maine— Towle v. Morse, 103 Me. 250, 68 Atl. 1044. 
 
 Mai-yland- Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. 
 
 Massachusetts— Baker v. Fall River, 187 Mass. 53, 56, 72 N. E. 336; Hen- 
 nessey V. Taylor, 189 Mass. 583, 585, 76 N. E. 224; Doherty v. Ayer, 197 Mass. 
 241, 83 N. E. 677; Com. v. Kingsbury, 199 Mass. 542, 544, 127 Am. St. 513, 85 
 N. E. 848. 
 
 Missouri— State v. Swagerty, 203 Mo. 517, 102 S. W. 483; Hall v. Compton, 130 
 Mo. App. 67s, io8 S. W. 1122. 
 
 New Jersey— McCarter v. Ludlum etc. Co., 71 N. J. Eq. 330, 71 Atl. 1134. 
 
 New York- Corcoran v. City of New York, 188 N. Y. 131, 80 N. E. 663; 
 Mason v. West, 61 N. Y. App. Div. 40, 70 N. Y. S. 478; Murphy v. Wait, 102 
 N. Y. App. Div. 121, 92 N. Y. S. 253. 
 
 North Carolina— Davis v. Thomburg, 149 N. C. 233, 62 S. E. 1088. 
 
 205 
 
§ 278 
 
 HIGHWAY 
 
 A distinction is drawn in Doherty v. Ayer/^ between automobiles as 
 carriages, and other vehicles. But this discrimination concerns merely 
 the effect and scope of the word "carriage" as used in chapter 51, section 
 I, Revised Laws, requiring cities and towns to keep highways in safe 
 and convenient condition at all seasons of the year. On the point now 
 under consideration, the court say that "it is a carriage in a broad sense 
 of the word," and add: 
 
 "Persons may lawfully ride in automobiles as they may law- 
 fully ride on bicycles."^^ 
 
 In Indiana Springs Co. v. Brown^' the court, in reviewing this 
 matter, remark that : 
 
 "The law does not denounce motor carriages, as such, on the 
 public ways. For so long as they are constructed and propelled 
 in a manner consistent with the use of the highway, and are 
 calculated to subserve the public as a beneficial means of trans- 
 portation, with reasonable safety to travelers by ordinary modes, 
 they have an equal right with other vehicles in common use to 
 occupy the streets and roads. In all human activities the law 
 keeps up with improvement and progress brought about by dis- 
 covery and invention, and, in respect to highways, if the intro- 
 duction of a new contrivance for transportation purposes, con- 
 ducted with due care, is met with inconvenience and even inci- 
 dental injury to those using ordinary modes, there can be no re- 
 covery, provided the contrivance is compatible with the general 
 use and safety of the road." 
 
 The use of automobiles on the highways for business or recreation 
 is lawful,^' and an automobile is recognized as a lawful vehicle and its 
 
 Pennsylvania — Radnor Twp. v. Bell, 27 Pa. Super. Ct. i ; Com. v. Hawkins, 
 14 Pa. Dist. Ct. Reps. 592. 
 
 See also Com. v. Temple, 80 Mass. 69, 74 ; Macomber v. Nichols, 34 Mich. 212, 
 and the following recent cases : Cleary v. Johnston, 74 N. J. L. 49> 74 Atl. 538 
 State V. Mayo, ic6 Me. 62, 75 Atl. 295; Simmons v. Lewis, 125 N. W. 194, 146 
 Iowa 316. 
 
 31 197 Mass. 241, 246, 183 N. E. 677. 
 
 32T0 same effect is Richardson v. Danvers, 176 Mass. 413, 57 N. E. 688, 50 L. 
 R. A. 127, 79 Am. St. Rep. 320 (a bicycle case). 
 
 83i6s Ind. 46s, 468, 74 N. E. 615. 
 
 ssDeputy v. Kimmel, 73 W. Va. 595, 80 S. E. 919, Si L. R. A. N. S. 989. 8 N. 
 C. C. A. 369. 
 
 206 
 
use O^ HIGHWAY § 279 
 
 driver stands on an equal footing with other vehicles on the highway.'" 
 Hence the use of a street by an automobile when operated with due 
 care and caution according to the police regulations of the state, must 
 be regarded as both a lawful and customary use of such street.*^ 
 
 The right of automobiles to use the highways has been accorded 
 ever since the decision in Indiana Springs Co. v. Brown** on the au- 
 thority of the dictum of Cooley, C. J., in Macomber v. Nichols,*' and 
 it is now well settled that automobiles are lawful modern modes of 
 travel and that they have the same right upon the public highway as 
 any other means of conveyance and liability for injury must be shown 
 and does not attach because of the character of the machine per se as 
 being a dangerous device of locomotion.*" 
 
 It follows therefore as a general rule that the legislature cannot pro- 
 hibit the use of motor vehicles on the highways.*^ 
 
 § 279. Right to Stand on Highway. — Under a city ordinance for- 
 bidding any person from obstructing a street with vehicles, the stopping 
 temporarily of a vehicle for a reasonable time for the convenience of 
 the owner is not an obstruction but he cannot lawfully use the street 
 as a garage or for a taxicab stand. So leaving a public automobile 
 on a street for an hour and a half is an obstruction.*^ 
 
 § 280. No superior right. — Motor vehicles, however, or their pas- 
 sengers have no higher or greater or different rights in the highways 
 than other travelers, and are subject to all the common law and statu- 
 tory obligations of such travelers.** 
 
 ssDaily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351. 
 
 s^Smiley v. East St. Louis & S. Ry. Co., 256 III. 482, lod N. E. 157. 
 
 8816s Ind. 46s, 74 N. E. 61S, I L. R. A. N. S. 238, 6 Ann. Cas. 656. 
 
 *9Mich. 217, 22 Ann. Rep. 522, quoted in full in § 277; O'Dowd v. Newnham, 
 13 Ga. App. 220, 80 S. E. 36. 
 
 "Riley v. Fisher, Tex. Civ. App. 1912, 146 S. W. 581. 
 
 *iState V. Gish, 168 Iowa 70, 150 N. W. zt. See however, §§ 167, 273. 
 
 *2Duluth V. Easterly, 115 Minn. 64, 131 N. W. 791. As to vehicles standing on 
 highway, see further, § 404 et se-q. 
 
 **Com. V. Kingsbury, 199 Mass. 542, 85 N. E. 848; Doherty v. Ayer, 197 Mass. 
 241, 246, 183 N. E. 677; Simeone v. Lindsay, 6 Pen. (Del.) 224 65 Atl. 778, 
 1907; Knight V. Lanier, 74 N. Y. Supp. looi, 65 App. Div. 282; Wright v. Crane, 
 142 Mich. 508, 106 N. W. 71 ; Emerson etc. Co. v. Pearson, 74 N. H. 22, 64 Atl. 
 S83; Fletcher v. Dixon, 107 Md. 420, 68 Atl. 87s; Lorenz v. Tisdale, 127 N. Y. 
 App. Div. 433. Ill N. Y. S. 173. 
 
 207 
 
§ 28l 
 
 HIGHWAYS 
 
 A traveler has an equal right to employ an automobile with other 
 vehicles in common use and the operator has the right to assume and 
 to act on the assumption that every other person on the highway will 
 use ordinary care under the circumstances.** 
 
 In Hall V. Compton*^ Mr. justice Johnson says that although the 
 motorist has an equal right with others to use the highways, he must 
 operate his automobile with a proper degree of care "in view of the 
 fact that it is heavy, powerful, fast and noisy," and that it is for the 
 jury to say whether the operator is negligent. In Fletcher v. Dixon" 
 Chief Justice Boyd says: 
 
 "While the owner of an automobile has the same right to use 
 the highways as owners of other vehicles have, the statute re- 
 quires certain things to be done by him in case a horse becomes 
 frightened. He must not only exercise reasonable care and cau- 
 tion for the safety of others, but he must do what the statute re- 
 quires when the conditions therein referred to arise."*'' 
 
 Likewise : 
 
 "Persons using horses have no superior rights in the high- 
 way."*' 
 
 The whole doctrine of the rights and obligations in the use of the 
 highways on the part of persons in possession of new forms of ve- 
 hicle, is set out by Chief Justice Cooley, in Macomber v. Nichols,** a 
 date long anterior to the introduction of the automobile. The opinion 
 is set forth in full, supra, § 277. 
 
 § 281. Mutual Rights of Automobiles and Bicycles. — ^Automo- 
 biles and bicycles have equal rights on the streets and equal rights in 
 the use thereof with other vehicles.^" "However while the duty of us- 
 ing ordinary care falls alike on the driver of an automobile and the 
 rider or driver of a bicycle, for reasons growing out of inherent dif- 
 
 **CampbeU v. Walker, 2 Boyce (Del.) 41, 78 Atl. 601. 
 *'i30 Mo. App. 67s, 108 S'. W. 1122. 
 *668 Atl. Repr. 875, 107 Md. 420. 
 
 *'Citing Hannigan v. Wright, s Pennew. 537 (Del.), 63 Atl. 234. 
 *8Molway v. City of Chicago, 239 111. 486, 88 N. E. 48s; Delfs v. Dunshee, 143 
 Iowa 381, 122 N. W. Repr. 236. 
 *''34 Mich. 212. 
 ""Luther v. State, 177 Ind. 619, 98 N. E. 640, citing text. 
 
 208 
 
USE OP HIGHWAY § 282 
 
 ferences 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 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."^^ 
 
 § 282. Prior Use of Highway no Effect on Rights of Motor Ve- 
 hicles. — It is not infrequently contended that the right of motor ve- 
 hicles to use the highways is subject to the right of the public to use 
 them as they had previously done. Reflection will convince one of the 
 error of the proposition. Highways had their origin in forest foot- 
 paths. Since then they have been subjected to many new methods of 
 travel, to each one of which the objection now before us might have 
 been raised, and, had it been successful, the highways would have been 
 footpaths still. Instead, the use by the fathers has never been re- 
 garded as a bar to new uses by succeeding generations. Through all 
 the changes, however, the controlling principle of the law has remained 
 unchanged, — that each shall so exercise his right as not to encroach 
 upon or impair the equal right of his fellow traveler.^^ 
 
 In Commonwealth v. Temple^^ Chief Justice Shaw, in commenting 
 upon this point in 1859, when made against street railways, said : 
 
 "This position we think manifestly unsound. The legislature 
 having granted a new and peculiar use of the highways, the 
 right of the public to use them as they had done is thereby quali- 
 fied, and must be adapted to such new one. Suppose the legis- 
 lature should authorize a canal to cross a highway, with a draw, 
 to be raised whilst boats are passing ; the public cannot use the 
 highway as they had previously done, at all times, but must 
 use it in subordination to the new right granted. So here, the 
 law having authorized a horse railroad * * * other vehicles 
 
 s'Luther v. State, 177 Ind. 619, 98 N. E. 640. 
 
 62Com. V. Temple, 80 Mass. 69, opinion by Shaw, C. J. ; Macomber v. Nichols, 
 34 Mich. 212, opinion by Cooley, C. J. ; Bennett v. Lovell, 12 R. I. 166, opinion by 
 Potter, J. ; Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 N. E. 615, opinion 
 by Hadley, J.; McCarter v. Ludlum etc. Co., 71 N. J. Eq. 330, 340, 71 Atl. 1134, 
 opinion by Pitney, V. C; Simeone v. Lindsay, 65 Atl. Repr. 778 (Del.), opinion 
 by Pennewill, J. 
 
 5^80 Mass. 69, 80. 
 
 209 
 14 
 
§ 282 HIGHWAYS 
 
 must conform their use of the way to such new and authorized 
 use, although it prevents them, to some extent, from using it as 
 they had previously done." 
 
 In Bogue v. Bennett" when the automobile was comparatively new, 
 and certainly uncommon, Mr. Justice Monks observed : 
 
 "Highways and streets are not for the exclusive use of ve- 
 hicles propelled by animal power, nor are travelers confined to 
 the use of such power and ordinary carriages upon highways. 
 The use of any new and improved means of locomotion must 
 be deemed to have been contemplated when the highways and 
 streets were laid out or dedicated, whenever it is found that the 
 general benefit requires it, and such new means of locomotion 
 cannot be excluded therefrom merely because their use may 
 tend to the inconvenience or even to the injury of those who 
 continue to use the highways and streets by former methods." 
 
 In Indiana Springs Co. v. Brown== the language of the court is so 
 apt in this connection, that although it has been quoted in another 
 place, it may be, in part, repeated : 
 
 "In all human activities the law keeps up with improvement 
 and progress brought about by discovery and invention, and in 
 respect to highways, if the introduction of a new contrivance 
 for transportation purposes, conducted with due care, is met 
 with inconvenience and even incidental injury to those using 
 ordinary modes, there can be no recovery, provided the con- 
 trivance is compatible with the general use and safety of the 
 public." 
 
 In Macomber v. Nichols'^ Chief Justice Cooley said, concerning the 
 presence on the highway of an "engine mounted on wheels," operated 
 by steam power : 
 
 "When the highway is not restricted in its dedication to some 
 particular mode of use, it is open to all suitable methods ; and it 
 cannot be assumed that these will be the same from age to age, 
 or that new means of making the way useful must be excKided 
 merely because their introduction may tend to the mconvenience 
 
 BiiS6 Ind. 478, 482, 60 N. E. i43- 
 BB165 Ind. 46s, 468, 74 N. E. 61S. 
 B634 Mich. 212, 217. 
 
 2TO 
 
USB 01? HIGHWAY § 283 
 
 or even to the injury of those who continue to use the road after 
 the same manner as formerly. A highway established for the 
 general benefit of passage and traffic, must admit of new 
 methods of use whenever it is found that the general benefit 
 requires them ; and if the law should preclude the adaptation of 
 the use to the new methods, it would defeat, in greater or less 
 degree the purpose for which highways are established."" 
 
 But as noted elsewhere,^* motor vehicles have no higher or better 
 rights on the highway than other users.'^ In Murphy v. Wait,"" an ac- 
 cident case, it is said : 
 
 "Since the automobile has come into use upon our streets and 
 highways, these accidents have been common, and actions to 
 recover damages resulting therefrom have been frequent. These 
 may be used on the public highways, but horses will also con- 
 tinue to be used for a time at least. Both may be legally used 
 as a motive power in public travel. Some horses are frightened 
 when they meet these machines, and it is the duty of persons 
 running the machines to exercise reasonable care to avoid acci- 
 dent when horses become frightened. It is not pleasant to be 
 obliged to slow down these rapid running machines to accom- 
 modate persons driving or riding slow country horses that do 
 not readily become accustomed to the innovation. It is more 
 agreeable to send the machine along, and let the horse get on 
 as best he may, but it is well to understand, if this course is 
 adopted, and accident and injury result, that the automobile 
 owner may be called upon to respond in damages for such in- 
 juries." 
 
 § 283. The Effect of Violation of Lavs^.^'^— The mere fact that 
 the plaintiff, at the time the injury occurred, was violating a statute law 
 of the road or a regulation of travel such as driving on the "wrong" 
 side of the street, will not preclude a recovery, unless the violation con- 
 tributed in some degree to the accident."^ 
 
 ""Opinion quoted in full, supra, § 277. 
 
 •'Doherty v. Ayer, 197 Mass. 241, 246, 183 N. E. 677. 
 "OI02 N. Y. App. Div. 121, 124, 92 N. Y. S. 253. 
 
 ""aUnregistered machine on highway, see § 1086; unlicensed operator, see § 
 264; illegality, see further, § 107s et seq. 
 '^Kidder v. Dunstable (Inhab.), 77 Mass. 342. 
 
 211 
 
§ 284 HIGHWAYS 
 
 If he was however driving an unregistered automobile and was un- 
 licensed he cannot recover under the Massachusetts rule.°^ 
 
 § 284. Duty of owner in case of break down. — If a motor vehicle 
 breaks down while upon the highway, it becomes the duty of the 
 owner to remove it, but he is allowed a reasonable time within which 
 to do so. What would be a reasonable time depends upon the circum- 
 stances and is not exclusively a question of law. Thus, an engine 
 broke down late Saturday afternoon. The defendant removed it the 
 following Tuesday morning. In the meantime plaintiff's horse, in 
 passing, took fright and the accident occurred. The court held that 
 Saturday being far spent when the break-down happened, Sunday in- 
 tervening, and only one work day (Monday) being used for repairs, 
 as matter of law the delay was not prima facie unreasonable. The jury 
 found for the defendant.'* 
 
 III. Liability of Municipalities 
 
 § 285. Duty of municipalities rests on statute. 
 
 286. Extent of duty. 
 
 287. Duty respecting automobiles. 
 388. What is a defect. 
 
 ^9. Stump outade travelled way. 
 
 .^90. Abandoned automobile. 
 
 291. Rut. 
 
 292. Large stones in road. 
 
 293. Rope across street. 
 
 294. Notice of defect necessary. 
 
 295. Obstruction of highways incident to repairs, building operations, and 
 
 traffic. 
 
 296. Railings and barriers. 
 
 297. Duty to light streets. 
 
 298. Question of sufficiency of highway is for jury. 
 
 299. Statutory liability for death and injuries. 
 
 300. Proximate cause. 
 
 § 285. Duty of Municipalities Rests on Statute.— In the United 
 States, there is no common law obligation upon the public authorities 
 to maintain and repair highways and bridges, but in most of the states 
 
 62Doherty v. Ayer, 197 Mass. 241, 247. 183 N. E. 677. For the general rule on 
 this subject, see further, §§ 1086, 1087. 
 
 esDavis v. Thornburg, 62 S. E. 1088, 149 N. C. 233; Duty of town to remove 
 car abandoned, see post, § 290. 
 
 212 
 
LIABILITY OF MUNICIPALITIES § 285 
 
 the duty is imposed by statute. In England the rule is just the re- 
 verse."* 
 In Angell on Highways, 3d ed., sec. 259, it is said : 
 
 "But though the towns in this country are amenable to no 
 other rule, and only to the precise measure of obligation pre- 
 scribed by statute, yet, in kind and degree, that obligation is 
 very much the same as at common law, or differs only by its 
 severer stringency." 
 
 At sec. 260, the same author remarks : 
 
 "This obligation * * * extends not only to the ordinary 
 traveled part of the highway, but also to the gutters and mar- 
 gins, and in cities to the sidewalks." 
 
 And, in sees. 265 and 266, it is pointed out, that the common duty 
 also exists to keep the highways free from obstructions of all kinds. 
 On the general principles of law in this regard, Mr. Justice Hammer- 
 si ey says in substance : 
 
 "The state undertakes to make the highway reasonably safe 
 for travelers, against such events as may naturally be expected 
 to arise as incident to its proper use. It does not undertake to 
 make it safe against culpable negligence of the traveler, "nor 
 to make it safe in view of every event that may possibly hap- 
 pen." The passing of an automobile properly driven, "and the 
 fright and shying of a gentle horse, constitute one of those 
 events in the proper use of a highway calling for its mainte- 
 nance in a safe condition." Mrs. Upton's hurt was "the direct 
 result of the defective highway, and the fright of her horse 
 was not an independent cause of her hurt, but was one of those 
 events incident to the proper use of the way." The safety of 
 travel demanded a sufficient fence, and the want of a "legally 
 sufficient fence," is a conclusion of fact, which the appellate 
 court cannot reverse, unless shown to be "plainly unreasona- 
 ble."°^ 
 
 «*Bigelow V. Randolph (Inhab.), 80 Mass. 541, Metcalf, J.; Morey v. Town 
 of Newfane, 8 Barb. 645, 648, Selden, J. 
 
 BBUpton V. Windham (Township), 75 Conn. 288, 53 Atl. 660. See also Scofield 
 V. Poughkeepsie (Town), 122 App. Div. 868, 107 N. Y. Supp. 767. 
 
 213 
 
§ 286 HIGHWAYS 
 
 In Massachusetts for example it is provided that : 
 
 "Highways, townways, causeways and bridges, shall, unless 
 otherwise provided, be kept in repair at the expense of the city 
 or town in which they are situated, so that they may be reasona- 
 bly safe and convenient for travelers, with their horses, teams 
 and carriages at all times."*" 
 
 Under such a statute it is the duty of cities and towns to keep the 
 highways safe and convenient for travelers at all times. The statute 
 fixes this standard and no other test is given."' 
 
 § 286. Extent of Duty. — The degree of diligence required of a 
 town or city is that of ordinary care, that is to say, a sufficient degree 
 of care to keep the highways "reasonably safe and convenient.""* 
 
 The duty of a county to keep a street in repair means to keep it in 
 such physical condition that it will be reasonably safe for street pur- 
 poses."^ 
 
 Under no circumstances is a city or town held to be an insurer of the 
 safety of its streets for travel.'" 
 
 § 287. Duty respecting Automobiles. — Whether the municipal ob- 
 ligation extends to keeping its streets in a safe condition for motor 
 vehicle passage depends on the statute. In some states the duty ex- 
 tends to motor vehicles," while in others it is sufficient if the road is 
 safe for horse-drawn vehicles. In Massachusetts for example in 
 Doherty v. Ayer" the supreme Court, considering the statute just 
 quoted in its relation to automobiles, point out that it can hardly be 
 contended that this form of vehicle was within the contemplation of the 
 
 ««Mass. Rev. L., chap. 51, § i. 
 
 67Rev. Laws, chap. 51, sec. i; George v. Haverhill, no Mass. 506; Bodwell v. 
 North Adams, no Mass. 511; Corcoran v. City of New York, 188 N. Y. 131, 
 80 N. E. 660. 
 
 «8Horton v. Ipswich (Inhab.), 66 Mass. 488. 4S9; Baker v. Fall River (City), 
 187 Mass. S3, 1904; Doherty v. Ayer (Inhab.), 197 Mass. 241, 246, 183 N. E. 677; 
 Garman v. Bangor (Inhab.), 38 Me. 443; Angell on Highways, 3d ed., sec. 268; 
 Baltimore v. Maryland, 166 Fed. Repr. 641 (Md.), 1908. 
 
 ss^atimer v. Anderson County, 95 S. C. 187, 78 S. E. 879, 4 C. C. C. A. 23, 387. 
 
 "Angell on Highways, 3d ed., sec. 297; Corcoran v. New York City, 188 N. 
 Y. 131, 80. N. E. 660. 
 
 "Sweet v. Salt Lake City, 43 Utah 306, 134 Pac. n67. 
 
 "197 Mass. 241, 246, 183 N. E. 677. 
 
 214 
 
I,IABII,ITY OP MUNICIPALlTIiiS § 288 
 
 legislature in 1786 when the act was passed, and hold that if the "ways 
 are reasonably safe and convenient for travel generally," towns and 
 cities "are not liable for a failure to ma,ke special provision required 
 only for the safety and convenience of persons using automobiles and 
 bicycles." The court notes that the expense of keeping country and 
 mountain roads in condition to make them passable for motor vehicles 
 especially in the winter and early spring would be prohibitive and that 
 no such duty was ever intended to be placed on cities and towns." 
 
 § 288. What is a Defect. — A defect in a highway may consist of 
 anything dangerous to travel, as an iron pipe projecting two and one- 
 half inches above the surface of the road," or a pile of minerals left in 
 the road at night.'^ 
 
 Conditions outside of but immediately adjacent to the highway may 
 render it defective. So a ditch sixteen inches deep and two feet wide, 
 eighteen inches from the travelled track was a menace to travellers 
 rendering a highway defective although its travelled portion is suffi- 
 ciently wide.'" 
 
 Testimony of the condition of the highway three hundred feet away 
 from the place where the accident occurred, is objectionable as being 
 too remote.'^ 
 
 § 289. Stump outside Travelled Way. — A stump in a street in a 
 small town outside of the travelled part of the road is not a defect 
 rendering the town liable as the town performed its duty by furnishing 
 a sufficient travelled way.'^ 
 
 § 290. Abandoned Automobile.'^'' — The failure of a city to remove 
 an automobile partially burned and abandoned for three hours and a 
 
 ''The court cite with approval the following cases : Richardson v. Danvers, 
 176 Mass. 413, 57 N. E. 688; Rust v. Essex, 182 Mass. 313, 65 N. E. 397; Spring 
 V. Williamstown, 186 Mass. 479, 71 N. E. 949 ; Baker v. Fall River, 187 Mass. 53, 
 72 N. E. 336. See also Molway v. City of Chicago, 239 111. 486, 88 N. E. 485. 
 
 '*Waterhouse v. Waterloo, 164 la. 324, 145 N. W. 890, s N. C. C. A. 441. 
 
 '^Stockton Automobile Co. v. Confer, 154 Cal. 402, 97 Pac. 881, 8 N. C. C. A. 
 142, where city had notice. 
 
 '^Sweetraan v. Green Bay, 147 Wis. 586, 132 N. W. 11 11. 
 
 '^Strand v. Grinnell Automobile Co., 136 Iowa 68, 113 N. W. 488. 
 
 'sWheeler v. Flatonia (Tex. Civ. App.), 155 S. W. 951. 
 
 '»Duty of automobilist to remove car abandoned, see ante, § 284. 
 
 215 
 
§ 291 HIGHWAYS 
 
 half is not negligence where it was abandoned at ten o'clock at night 
 in the presence of a policeman.'" 
 
 § 291. Rut. — ^A traction company may be found negligent in al- 
 lowing a rut to remain on each side of its switch which had been there 
 about two years caused by the wearing away of the asphalt from the 
 continuous traffic, where the rail at this point was a grooved rail likely 
 to catch wheels. In this case the rut threw the wheel of a truck so 
 that the driver lost control of it, and his employer and the traction com- 
 pany are jointly liable to a pedestrian injured.*^ 
 
 § 292. Large Stones in Road. — Stones in a road placed there to 
 block the wheels of a cart do not constitute a nuisance. A failure to 
 remove them when the cart moves merely makes the defendant negli- 
 gent.*^ 
 
 A stone in a road as big as a man's head is not "an illegal obstruc- 
 tion" on a country road constituting a nuisance as matter of law merely 
 because it interferes with the free progress of a motorcycle moving at 
 the rate of 25 miles an hour. A readily removable object of this char- 
 acter 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 because it may become dangerous to reckless drivers 
 of motorcycles driving their machines at a speed which is perilous in 
 itself."*' 
 
 Where the negUgence claimed was in leaving a large stone in the 
 road where there were many stones there, evidence is insufficient that 
 the defendant placed two stones in the road at that place earlier in the 
 day. This does not identify the stone which the plaintiff ran over as 
 one of those left by the defendant.** 
 
 soHuyler v. New York City, 150 App. Div. 206, 14S N. Y. S. 650, 5 N. C. C. A. 
 
 444- 
 siGeise v. Mercer Bottling Co., 87 N. J. L. 224, 94 Atl. 24. 
 
 82Francis v. Gaffey, 211 N. Y. 47, loS N. E. 96. 
 
 For a case where running over a small stone in the highway caused the plain- 
 tiff to lose control of his machine, see Zorn v. New York, 85 Misc. 45. W N. Y. 
 
 S. 70. 
 ssprancis v. Gaffey, 211 N. Y. 47, lOS N. E. 96. 
 siprancis v. Gaffey, 211 N. Y. 47, 105 N. E. 96. 
 
 216 
 
I,IAB1I,ITY OF MUNICIPAI,ITIES § 293 
 
 § 293. Rope across Street. — Whether it is negligent to bar a street 
 by a rope alone and whether a driver is negligent in failing to see it is a 
 question of fact for the jury under all the circumstances.^^ 
 
 A city has a right to close a street for repairs and it is bound ck 
 doing so to give warning such as ordinary prudence would dictate. 
 Just wAat these precautions should have been is a question of fact for 
 the jury. Whether a rope stretched across the street is sufficient is 
 for the jury.*' 
 
 A driver of an automobile cannot recover if he runs against a rope 
 stretched across a street negligently and unlawfully if by the exericse 
 of ordinary care he could have seen the obstruction. In this case the 
 rope was a large one and the day was clear and there was evidence 
 that the plaintiff was looking to one side when he hit it.*' 
 
 An instruction to the jury telling them to ask themselves whether a 
 person of ordinary prudence would have placed a rope across the high- 
 way is not a charge on the facts.** 
 
 § 294. Notice of Defect Necessary. — The statutes of most of the 
 states provide for "reasonable notice" to the authorities of the exist- 
 ence of a defect in order to render them liable for an injury occasioned 
 thereby.*' 
 
 As to the interpretation of the meaning of the expression "reason- 
 able notice" to the city or town, Chief Justice Shaw, in Reed v. 
 Northfield (Inhab),'" says: 
 
 "We are also of opinion that the evidence of notice to the 
 town * * * was rightly left to the jury. It has often been 
 held, in giving a construction to this act, that notice to the town 
 of the defect of a highway, may be inferred from its notoriety, 
 and from its continuance for such length of time as to lead to 
 the presumption that the proper officers of the town did in 
 fact know, or, with proper viligance and care, might have 
 known the fact. This latter is sufficient, because this degree of 
 care and vigilance they are bound to exercise, and therefore, if 
 
 ssBaker v. Fall River, 187 Mass. 53, 72 N. E. 336. 
 
 seHoUiday v. Athens, 10 Ga. App. 709, 74 S. E. 67; Latimer v. Anderson 
 County, 95 S. C. 189, 78 S. E. 879. 4 N. C. C. A. 23, 387, in dark place. 
 8'Wallower v. Webb City, 171 Mo. App. 214, 156 S. W. 48. 
 **Latimer v. Anderson County, 95 S. C. 189, 78 S. E. 879, 4 N. C. C. A. 23, 387. 
 ssAngell on Highways, 3d ed., sec. 289; Mass. Rev. Laws, chap. 51, sees. 17, 18. 
 ^"30 Mass 94, 98. See also Dean v. Sharon (Town), 7a Conn. 667. 
 
 217 
 
§ 295 HIGHWAYS 
 
 in point of fact they do not know of such defect, when by ordi- 
 nary and due vigilance and care they would have known it, 
 they must be responsible, as if they had actual notice." 
 
 A passenger in an automobile has a right to go to the jury where 
 there is evidence that the street is defective and has been known to be 
 so for weeks.'^ 
 
 § 295. Obstruction of highways incident to repairs, building 
 operations, and traffic. — Messrs. Shearman and RedfieW^ state the 
 general rules controlling this subject, in substance as follows: 
 
 The mere fact that a street is obstructed is not conclusive evidence 
 of negligence, although reasonable diligence must be exercised to re- 
 lieve the highway of its presence ;^^ nor is the temporary obstruction 
 of a highway unlawful when reasonably necessary for the conduct 
 of business, but here again the person causing the hindrance must not 
 unreasonably prolong it. The general rule is that "no one can legally 
 carry on any part of his business in a public street to the annoyance 
 of the public."'* In large cities usually this is a matter of municipal 
 regulation. "The rule is universal that whoever without lawful au- 
 thority obstructs a highway so as to render its use hazardous, is liable 
 to one who sustains a special damage thereby. It is immaterial whether 
 negligence caused the nuisance."^ 
 
 * * * Doing anything which renders the highway less com- 
 modious or safe for the traveler is a nuisance, the author of which 
 is liable for the consequences."'" 
 
 As before stated, the presence of an obstruction does not create 
 more than a prima facie presumption of negligence. In Parker v. 
 Adams," Mr. Justice Dewey, speaking for the court, says : 
 
 "To entitle the plaintiff to recover of the defendant dam- 
 ages for the injury he thus sustained, he must show the injury 
 to have been attributable to the misconduct of the defendant, 
 and under such circumstances as to exonerate -himself from all 
 neglect of duty on his part." 
 
 siSisson V. Philadelphia, 248 Pa. 140, 93 Atl. 936. 
 
 »20n Negligence, Sth ed. 
 
 »sSec. 361. 
 
 »*Sec. 362. 
 
 e^See Chapter XV, Nuisance. 
 
 soSec. 36s. 
 
 "'Sa Mass. 41S, 417- 
 
 218 
 
LIABILITY OP MUNICIPALITIES § 296 
 
 A telephone pole erected adjacent to the travelled way is not ordi- 
 narily evidence of negUgence. In a recent case where the question 
 arose whether the highway commissioners should have anticipated 
 an accident and should have compelled the company to place their 
 poles elsewhere, the court say, "all that they were required to do was 
 to use reasonable care to see that the highways were reasonably safe 
 for travel." "They were not bound to anticipate that plaintiff or 
 others might meet a wreckless automobilist on a dark stormy night, 
 and that they would be crowded out of the beaten path" ;°* 
 
 § 296. Railings and Barriers. — A city or town is usually bound 
 by statute to place railings, barriers, or other safe-guards around de- 
 fects and dangerous places or obstructions in the highway of which 
 it has notice, such as will render passing in the highway safe and 
 convenient for persons using ordinary care.'' It is a question for the 
 jury whether a town is negligent in not erecting a barrier on a much 
 travelled thoroughfare at a point where it suddenly narrowed to a 
 width of twelve feet and eight inches where one side was on the edge 
 , of an embankment concealed by weeds. ^ 
 
 The town is still bound to maintain railings at proper places 
 under Vermont law even on a state highway.^ 
 
 Where an accident occurs by reason of the absence of a barrier at a 
 dangerous gulch it is competent to show that eight months later an 
 auto truck went off the road at the same place where the conditions 
 are the same. The fact that it is raining when the truck goes through 
 is not material.' 
 
 But when the condition of a street is such as in itself to give notice 
 that the way is not open to public travel, it is not necessary to place 
 barriers there to warn the public that it is unsafe to proceed.* And 
 towns are not obliged to erect barriers to prevent or warn travelers 
 
 ''Scofield V. Poughkeepsie, 122 App. Div. ^8, 107 N. Y. Supp. 767. 
 
 9»Palmer v. Andover, 56 Mass. 600; Doherty v. Waltham, 70 Mass. 597; Spar- 
 hawk V. Salem, 83 Mass. 30; Titus v. Northbridge, 97 Mass. 258; Corcoran v. 
 New York City, 188 N. Y. 131, 80 N. E. 660; Baltimore v. Maryland, 166 Fed. 
 Repr. 641 (Md.). 
 
 ^Nicholson v. Stillwater, 208 N. Y. 203, loi N. E. 858. 
 
 ^Maynard v. Westfield, 87 Vt. 532, go Atl. 504. 
 
 'Beach v. Seattle, 85 Wash. 379, 148 Pac. 39. 
 
 *Jones V. Collins, 177 Mass. 444, 59 N. E. 64; Compton v, Revere, 179 Mass. 
 413. 60 N. E. 931- 
 
 219 
 
§ 297 HIGHWAYS 
 
 from straying from the highway,* although there is a dangerous place at 
 some distance from the highway which they may reach by so straying." 
 
 Liability is often based on the failure of the city or town to maintain 
 a barrier at a dangerous place sufficient to stop a horse whicli becomes 
 frightened at an automobile. The passing of an automobile properly 
 driven, "and the fright and shying of a gentle horse, constitute one of 
 those events in the proper use of a highway calling for its maintainance 
 in a safe condition."' Where a horse frightened at an automobile, and 
 jumps off the road into a culvert, it is a question for the jury whether a 
 railing was required there.* 
 
 Where a horse is frightened at an approaching automobile and 
 backs over a defective barrier beside the road the barrier is the proxi- 
 mate cause of the injury.' But a county is not bound to erect a guard 
 rail strong enough to stop an automobile running twenty-five miles an 
 hour." 
 
 § 297. Duty to Light Streets. — Cities and towns are generally 
 under no legal obligation to light thfe streets or highways.^"^ 
 
 In case, however, the public authorities do undertake to light the 
 thoroughfares or place lights in warning of obstructions, they are 
 held to reasonable care in so placing them as not to mislead the trav- 
 eler to his injury. ^^ 
 
 Cities and towns are furthermore generally liable for failure to light 
 a danger not readily discernable at night. So a city is Uable for failure 
 to light or properly guard an open ditch in the street," or an em- 
 
 BSparhawk V. Salem, 83 Mass. 30; Com. v. Wilmington, 105 Mass. 601; War- 
 ner V. Holyoke, 112 Mass. 365- 
 
 ePuffer v. Orange, 122 Mass. 391 ; Flagg v. Hudson, 142 Mass. 280. 8 N. E. 42; 
 Damon v. Boston, 149 Mass. 147, 21 N. E. 235; Doherty v. Ayer, 197 Mass. 247, 
 183 N. E. 677. 
 
 TUpton V. Windham, 75 Conn. 288, 53 Atl. 660. 
 
 sMaynard v. Westfield, 87 Vt. 532, 90 Atl. 504. 
 
 sSims V. Williamsburg Twp., 92 Kans. 636, 141 Pac. s8i. To the same eflect 
 see Upton v. Windham, 75 Conn. 288, 53 Atl. 660. 
 
 loWasser v. Northampton County, 249 Pa. 25, 94 Atl. 444. 9 N. C. C. A. 1022. 
 
 iiSparhawk v. Salem, 83 Mass. 30 (i Allen) ; Macomber v. Taunton, loo Mass. 
 257; Randall v. Eastern R. Co., 106 Mass. 276; Marshall v. Ipswich, no Mass. 
 526 ; Flagg V. Hudson, 142 Mass. 286, 8 N. E 42. 
 
 i^Baltimore v. Maryland, 166 Fed. Repr. 641 (Md.), 1908. 
 
 iBSweet V. Salt Lake City, 43 Utah 306, 134 Pac. 1167. 
 
 220 
 
UABILITY Olf MUNICIPAI,ITIES § 298 
 
 bankment,^* or a pile of stones.^" Therefore the town may be liable if 
 it fails to light a cul-de-sac where the road has been blocked up en- 
 tirely.^' 
 
 The driver of an automobile was permitted to recover on evidence 
 that he was driving at night and slowed up on approaching a river, 
 that there was an upgrade at that point so that his lights did not 
 show that the bridge had been carried away, that there was no barrier 
 at that point but there was a new path for vehicles to a temporary 
 bridge at one side which he did not see. A traveller has the right to 
 proceed on the assumption that highway bridges are as safe as other 
 parts of the highway.^^ 
 
 But where the city places a light over a defect which is taken away 
 by some unknown person the plaintiff must show that the city had 
 actual knowledge of the absence of the light.^' 
 
 § 298. Question of Sufficiency o£ Highway is for Jury. — ^The 
 question as to whether a highway is defective is one of fact to be de- 
 termined by the jury.^° Whether for example the city's methods of in- 
 spection to discover loose boards are sufficient is a question for the 
 jury.^" 
 
 Expert testimony is not needed as to the construction and condition 
 of a country highway and whether it was reasonably safe for auto- 
 mobiles.^^ 
 
 § 299. Statutory Liability for death and injuries. — ^The Massa- 
 chusetts statute provides that if the life of a person is lost by reason 
 
 i^Baltimore v. Maryland, 166 Fed. 641. 
 
 i^Carlson v. New York, 134 N. Y. S. 661, 150 App. Div. 264. 
 
 "•Corcoran v. New York, 188 N. Y. 131, 80 N. E. 660. It is hard to reconcile 
 this case with the line of cases holding that if the motorist cannot see he must 
 stop, and that he is negligent in running into an unlighted obstruction. See §§ 
 306, 408 et seq. 
 
 i^Super V. Model Twp., 88 Kan. 698, 129 Pac. 1162. 
 
 isGedroice v. New York, 109 N. Y. App. Div. 176, 95 N. Y. S. 645, citing Parker 
 V. Cohoes, 74 N. Y. 610. 
 
 "Baker v. Fall River (City), 187 Mass. 53, 72 N. E. 336; Garmon v. Bangor 
 (Inhab.), 38 Me. 443; Baltimore v. Maryland, 166 Fed. Repr. 641 (Md.) ; Howe 
 V. Lowell, loi Mass. 98; Lyman v. Amherst, 107 Mass. 339, 346; Marshall v. 
 Ipswich, no Mass. 525; Myers v. Springfield, 112 Mass. 489; Hodkins v. Rock- 
 port, 116 Mass. 573. 
 20Loutsville V. Zoeller, 155 Ky. 192, 160 S. W. 500, 5 N. C. C. A. 443. 
 2iLoose V. Deerfield Twp. (Mich.), 153 N. W. 913, 1915. 
 
 221 
 
§ 300 HIGHWAYS 
 
 of a defective condition of the highway, or a want of repair thereof, 
 his personal representatives may recover damages from the municipal- 
 ity responsible for such defect, not exceeding a specified amount, to 
 be "assessed with reference to the degree of culpability of the de- 
 fendant/' This statute while not identical in terms with, is similar 
 to that providing for cases of death resulting from the negligent act 
 of individuals.^^ 
 
 The statute also provides for cases where "a person sustains bodily 
 injury or damage in his property," by reason of a defect in the high- 
 way or want of repair thereof, but makes no explicit provision con- 
 cerning the method of assessing damages. Both sections cover cases 
 of "a defect or a want of repair of, or a want of a sufficient railing in 
 or upon a way, causeway, or bridge," of which the proper authorities 
 shall have had "previous reasonable notice."^^ 
 
 § 300. Proximate cause. — Where the automobile runs over a 
 small stone in the road which deflects it, causing it to crash into piles of 
 stone left beside the road by the defendant in repairing the highway, 
 negligence in placing the piles there was not the proximate cause of 
 the accident." 
 
 So the proximate cause of an accident may be the negligent speed 
 of an automobile deflected from its course by bundles of papers left 
 in the street and not the negligence in leaving the papers.^" 
 
 IV. DtJTY ot Teavewrs 
 
 301. Rights and duties of travelers. 
 
 302. Duty to follow the traveled path. 
 
 303. Degree of care required of travelers. 
 
 304. Rights of passengers. 
 
 305. Negligence of driver. 
 
 306. Driver failing to notice defect. 
 
 § 301. Rights and duties of travelers.^' — In a New York motor 
 vehicle case, Mr. Justice Werner, speaking for the court of appeals, 
 says that it is a principle of law that the user of a city street has the 
 
 22Mass. Rev. L., chap. 51, § 17; Rev. Laws, chap. 171, sec. 2, post, sec. 1545- 
 
 28See Baltimore v. Maryland, 166 Fed. Repr. 641 (Md.), 1908. 
 
 2*Zorn v. New York, 147 N. Y. S. 70, 85 Misc. 45. 
 
 ziijepson V. Crosstown St. Ry., 72 Misc. 103, 129 N. Y. S. 233. 
 
 2«See § 331 et seq., Law of the Road, 1257 et seq., Pedestrians. 
 
 222 
 
DUTY 01? TRAVEI<ERS § 3°! 
 
 .right to assume that all parts of the street intended for travel are 
 safe, and he is not open to the imputation of negligence if he fails to 
 discern an unknown and concealed danger at the very instant neces- 
 sary to prevent an impending disaster.^^ 
 
 But this principle does not relieve the traveler of the duty to exer- 
 cise due care in avoiding dangers, defects and obstructions. Lord 
 EUenborough remarked, in the case of Butterfield v. Forrester.^' 
 
 "A party is not to cast himself upon an obstruction which 
 has been made by the fault of another, and avail himself of it, 
 if he do not himself use common and ordinary caution to be in 
 the right. * * * Two things must concur to support this 
 action — an obstruction in the road by the fault of the defendant, 
 and no want of ordinary care to avoid it on the part of the 
 plaintiff.''^" 
 
 On the other hand the traveler is not bound as matter of law, to go 
 around every obstruction, but if he had previous knowledge of it, the 
 fact should go to the jury.'" 
 
 And it is his duty to look ahead in such a manner as persons of 
 ordinary prudence usually do in riding upon a highway.'^ 
 Dr. Thompson thus states the rule : 
 
 "Going upon a street with knowledge of the existence of con- 
 ditions rendering it dangerous, or attempting to pass a known 
 or visible defect, is not per se contributory negligence; but 
 such negligence is a question of fact for the jury, unless the 
 danger is so glaring that fair-minded men could not but agree 
 that the attempt was foolhardy.'"^ 
 
 In Thompson v. Bridgewater (Inhab.),'' Chief Justice Parker, 
 declared that a traveler in order to be entitled to recover damages of 
 
 "Corcoran v. City of New York, i88 N. Y. 131, 80 N. E. 660. 
 
 28ii East. 60, 61. 
 
 2»See also Bridge v. Grand Junction Ry., 3 Mees & Welsb, 244; Mellhenney v. 
 Philadelphia, 214 Pa. St. 44; Garmon v. Bangor, 38 Maine, 443 ; Angel! on High- 
 ways, 3d ed., sec. 290. 
 
 '»Erd V. St. Paul (City), 22 Minn. 443. 
 
 "Hill V. Seekonk (Inhab.), 119 Mass. 85, 88; Smith v. Jackson (Twp.), 26 
 Pa. Super. Ct. 334. 
 '^Com. on Negligence, 2d ed., sec. 447. 
 "24 Mass. 187. 
 
 223 
 
§ 302 HIGHWAYS 
 
 a town for loss sustained by reason of deficiency in the highway, is 
 not bound to look far ahead in order to guard against obstructions. 
 He adds : 
 
 "It was rightly left to the jury that if there was gross care- 
 lessness and rashness in going to the causeway, then, although 
 there might be no mismanagement afterwards, the plaintiff 
 could not recover; but if on the contrary, there was no such 
 rashness in approaching the place of danger, then, as there 
 was no mismanagement there, he ought to recover." 
 
 In Horton v. Inhab, of Ipswich,'* the court say: 
 
 "The real point is, not whether the plaintiff was chargeable 
 with any negligence in making his way over the road after he 
 had entered upon it, but whether he knew, or had reason to be- 
 lieve that the road was dangerous when he entered on it, or 
 before he had reached any dangerous place. If so, he could not, 
 in the exercise of ordinary prudence proceed and take his 
 chance, and if he should actually sustain damage, look to the 
 town for indemnity. Holman v. Townsend, 13 Met. 297."^^ 
 
 § 302. Duty to follow the travelled path. — The Supreme Court on 
 this point say : 
 
 "If the plaintiff, without any reasonable cause therefor, know- 
 ingly drove out of the way prepared for travel, or if she care- 
 lessly allowed the horse to get out of it, and in that way was in- 
 jured by contact with the stone, she could not recover."^' 
 
 In Kenney v. Ipswich (Inhab.)" plaintiff was riding a bicycle out- 
 side the travelled part of the road, at night, and without a lamp. The 
 court held it to be for the jury to say whether he was in the exercise 
 of due care. Hence the driver may be found guilty of contributory 
 negligence where he leaves the main travelled track and takes a side 
 track and hits a stump projecting in the path.'' 
 
 § 303. The degree of care required of travelers to avoid obstruc- 
 tions, defects, or dangerous places, depends upon the peculiar facts and 
 
 3466 Mass. 4^, 492. , • •. 
 
 35See also Kelly v. So. Minnesota Ry., 28 Minn. loi, where the rule in its 
 general bearing as to travelers is discussed. 
 aoCarey v. Hubbardston (Inhab.). 172 Mass. 106, 109, 51 N. E. S21. 
 37178 Mass. 368. 
 3801mstead v. Greenfield, 155 Wis. 4S2, i44 N. W. 987. 
 
 224 
 
DUTY Olf TRAVELERS § 304 
 
 circumstances of the case. "A greater degree of care would be re- 
 quired in avoiding an apparently imminent and reasonably certain dan- 
 ger than one of a less certain and doubtful character." Previous 
 knowledge of the existence of the defect is also an element proper to 
 be shown. It has been held no error for the court to charge the jury 
 that "a party traveling along a highway was not bound to go around 
 for every obstruction." The whole question is for the jury.^° 
 
 § 304. Rights of Passengers. — ^Where a driver sees a deep hole in 
 the street and attempts to drive over it his contributory negligence is 
 not to be imputed to a passenger unless she controls him or joins him 
 in testing the danger.*" So a guest recovered against the city for a de- 
 fect where the automobile in which he was riding was driven against a 
 pile of bricks and a hole in the street well lighted at night.*^ 
 
 The jury's finding that the accident occurred because of the high 
 speed and reckless driving of an automobile in which the plaintiff was 
 a passenger is not inconsistent with a general verdict for the plaintiff 
 against a city for a defect in the highway against which the automobile 
 ran. The special finding does not show that the accident was due solely 
 tc the reckless driving of the automobile and where one is injured by 
 the concurrent negligence of two or more he may sue either.*^ 
 
 § 305. Negligence of Driver. — ^The fact that the driver at night 
 noticed a slight raise in the roadbed where there were no lights or 
 barriers is not warning of a cut and he is justified in proceeding.*^ 
 
 A driver of an automobile is not guilty of contributory negligence 
 in driving on a muddy road with his right wheels in the grass outside 
 the traveled part and failing to see a ditch or pit there,** but a driver 
 may be negligent in attempting to drive over a deep hole in the street 
 which he sees.*^ 
 
 § 306. Driver failing to Notice Defect. — A driver of a truck may 
 be found negligent in failing to notice a defect in a highway consisting 
 of a rut on each side of a switch in a street car line four feet long and 
 
 39Erd V. St. Paul (City), 22 Minn. 443. 
 
 *''Sisson V. Philadelphia, 248 Pa. 140, 93 Atl. 936. See also post, §§ 1019, 1190. 
 
 *iGary v. Geisel, 58 Ind. App. 618, 108 N. E. 876. 
 
 *2Gary v. Geisel, 58 Ind. 618, 108 N. E. 876. 
 
 *'Loose V. Deerfield Twp., 187 Mich. 201, 153 N. W. 913. 
 
 **Sweetnian v. Green Bay, 147 Wis. 586, 132 N. W. nil. 
 
 *5Sisson V. Philadelphia, 248 Pa. 140, 93 Atl. 936. 
 
 225 
 
 IS 
 
§ 306 HIGHWAYS 
 
 six inches deep when the steering wheel is wrenched out of his hand 
 and the truck runs on to the sidewalk. The driver is bound to see 
 an obvious defect in a roadway. The fact that he lost control of the 
 truck which ran wild for a hundred feet or so, turned a corner and ran 
 on to the sidewalk is also evidence of negligence.** 
 
 A motorcyclist may be found negligent who drives at a speed of 
 over twenty-five miles an hour and strikes a large stone left in the road 
 where he admits that if he had looked he could have seen the stone.*' 
 
 The jury cannot predicate negligence in driving an automobile at 
 fifteen to eighteen miles an hour on a country road where it left the 
 road and turned over especially where the plaintiff, a passenger,, 
 claimed the road was smooth, although the defendant strangely claimed 
 the road was rough but failed to show the road was rough enough to 
 show himself negligent.*'* Whether the plaintiff is negligent in driv- 
 ing on a dark and rainy night without lights sufficent to light up a 
 ditch across the road is for the jury.** 
 
 An automobilist cannot recover where he runs into a concrete mixer 
 on the street at night although the obstruction is not lighted. It was 
 negligence to drive the machine faster than enabled him to stop or 
 avoid an obstruction within the radius of his light.*' 
 
 *«Geise v. Mercer Bottling Co., 87 N. J. L. 224, 94 Atl. 24. 
 *7Francis v. Gaffey, 211 N. Y. 47, 105 N. E. 96- 
 «aLochhead v. Jensen, 42 Utah 99, 129 Pac. 347. 
 *8Sweet v. Salt Lake City, 45 Utah 306, i34 Pac. 1167. 
 *»West Const Co. v. White, 130 Tenn. 520, 172 S. W. 301. 
 
 226 
 
CHAPTER XV 
 
 NUISANCE 
 
 § 307. The common law. 
 
 308. Classification of nuisance. 
 
 309. Remedies. 
 
 310. Effect of statute. 
 
 311. Motor vehicle not a nuisance. 
 
 312. Effect of violation of law. 
 
 § 307. The Common Law. — It is elsewhere stated^ that the statute 
 requiring road operation of motor vehicles, to be reasonable and proper, 
 is but an expression of the common law. That law in this respect, is to 
 be found in the law of nuisance, in considering which, at this time, the 
 sole purpose is to present it in its relation to overspeeding on the high- 
 way. 
 
 In England, where motor vehicle laws are not so precise in details 
 regulating operation, the law of nuisance is generally relied on. In 
 America, the tendency is to put everything into the form of statute, 
 then stand on the statute, and point to the common law as the pillar 
 on which the statute rests. In Com. v. Rumford Chemical Works^ it 
 was held that the various statutes neither repealed nor abridged the 
 common law of nuisance, citing the remarks of Chancellor Kent to the 
 same effect. 
 
 At common law any unauthorized or unreasonable obstruction or 
 use of the highway "which impedes the use thereof or renders it more 
 difficult or increases the danger of injury to persons or property, or 
 generally interferes with the public rights, constitutes a public nui- 
 sance."^ 
 
 § 308. Classification of Nuisances. — Nuisances are of two kinds 
 "Public" and "Private," the former often being called "Common nui- 
 sances." A nuisance is public when it affects the rights enjoyed by 
 
 i§ 424, Speed limitations; also § 239, Smoke laws. 
 282 Mass. 231. 
 
 'Joyce "Law of Nuisances," sees. 112, 214; Wood on Nuisances, sees. 249, 
 2S7, 26c. 
 
 227 
 
§ 309 NUISANCE 
 
 citizens as a part of the public, illustratively, the right of travelling 
 on a public highway which is one to which everybody is entitled.* A 
 "private nuisance" is one which affects a private right not common to 
 the public, or which causes special injury to the person or property 
 of an individual or of a determinate number of individuals.' 
 
 There is another class of nuisances which Wood' denominates 
 "mixed, being both public and private in their effects : Public, in that 
 they produce injury to many persons or all the public; and private, 
 because at the same time they produce a special and particular injury 
 to private rights." Nuisances affecting the highway, are of this class.' 
 
 Nuisances are classified again ; ( i ) those which are nuisances per se, 
 that is to say, wrongs in themselves {mala in se), and (2) that class of 
 nuisances commonly falling within the line of things not wrong in 
 themselves, but which are declared to be nuisances by statute.' 
 
 § 309- Remedies for the abatement of nuisances are also public 
 and private. The former is by indictment by the public authorities, 
 the latter is by a suit in equity brought by the aggrieved party. With 
 this latter aspect of the matter we are not concerned. It is to be 
 noted, however, that irrespective of the public remedy mentioned in 
 the case of public and "mixed" nuisances, there is also a private right 
 of action in tort for damages sustained, by any injured individual. 
 In short the offender may be prosecuted criminally and at the same 
 time be sued in the civil tribunals, for money damages for private in- 
 juries inflicted.' 
 
 There is a further remedy in cases of nuisance, to wit: the abate- 
 ment thereof by "taking the law into one's own hands, and putting 
 straight the act or omission of the party causing the nuisance." "This," 
 says Mears,^° "is at best a dangerous remedy, and should only be re- 
 sorted to with, great caution."^^ 
 
 *Joyce "Law of Nuisances," sec. 5. 
 ^Ibid. sec. 8. 
 
 8"On Nuisances," p. 35. 
 
 'Wood on Nuisances, sec. 16; Joyce, Law of Nuisances, sec. 14. 
 sWood on Nuisances, sec. 23; Joyce, Law of Nuisances, sec. 15. 
 ojoyce, "Law of Nuisance," sees. 14, 365, et seq.; Stetson v. Faxon, 36 Mass. 
 160; Wood on Nuisances, sec. 16; Mass. Rev. Laws, chap. 54, sec. 4 (Mass.). 
 i"Law of the Motor Car, p. 76. 
 iiThorapson, Com. on Negligence, 2d ed., sees. 254, 274. 
 
 228 
 
NUISANCE § 310 
 
 In Angell on Highways^^ the doctrine is expressed as follows : 
 
 "A nuisance in the common highway may be abated — that 
 is, removed or destroyed — by any individual who wants to use 
 it in a lawful way. * * * The reason why the law allows this 
 private summary method of doing one's self justice is because 
 injuries of this kind, which obstruct or annoy such things as 
 are of daily convenience and use, require an immediate remedy 
 and cannot wait for the slow progress of the ordinary forms of 
 justice. But although any one may abate a common nuisance 
 obstructing a highway and remove the materials, yet he cannot 
 convert them to his own use. And the right also seems to be 
 qualified by the exception that it cannot be exerted if its exer- 
 cise involve a breach of the peace. * * * Neither does this 
 right of abatement, as has been held, go to the extent of justify- 
 ing the removal of every encroachment upon the highway, un- 
 less such encroachment at the same time annoys and obstructs 
 its lawful use." 
 
 The general caution to be observed by the motorist in abating a 
 nuisance obstructing his proper use of the highway, is to remove the 
 object creating the nuisance in such a manner as to work the least pos- 
 sible harm to the obstruction itself, remembering that his act, if any 
 breach of the peace is involved, may subject him to indictment and,. if 
 undue injury is sustained by the obstruction, to a suit for negligence 
 involving damages. 
 
 "Although a person places his property in the public highway * * * 
 yet this does not warrant its destruction by one to whom the nuisance 
 occasions no special damage."^' 
 
 § 310. Effect of statute. — Another feature of which sight must 
 not be lost, is the effect of statute. The legislature may not only de- 
 clare a particular act or thing a nuisance, but by statute, a common law 
 nuisance may cease to be such.^* 
 
 § 311. Motor Vehicle not a Nuisance. — Whatever, therefore, may 
 have been said concerning it when it first appeared, the motor vehicle 
 as such, is not now a nuisance per se on the highway. By statute and 
 
 i^4th ed., sec. 274. 
 
 ^'Thompson, Cora, on Negligence, 2d ed., sec. 254. 
 
 i*Angell on Highways, sec. 237. 
 
 aag 
 
S 3" 
 
 NUISANCE 
 
 judicial decision everywhere, it has come to be a legitimate mode of 
 locomotion." 
 
 Any relation, therefore, which the law of nuisance may have to our 
 subject, concerns the manner of motor vehicle use on the streets and 
 highways of the Commonwealth, not the vehicle per se. On this point, 
 in Com. v. Temple," Chief Justice Shaw says, in considering the case 
 of one who obstructed a street car by travelling on the railway track: 
 
 "It is a nuisance, if, for his own benefit, he violates the rights 
 of others ; and if this consists in the violation of a public right, 
 indictment is the appropriate remedy for its vindicaton and 
 redress. Nor is express malice, a disposition or desire to cause 
 damage to another, as in the case of malicious mischief, neces- 
 sary to the completion of the oflfense. It is a nuisance if one 
 wilfully seeks and pursues his own private advantage, regard- 
 less of the rights of others, and in plain violation of them; it 
 is a wrong done. ,And as every man must be presumed to in- 
 tend all the necessary, natural and ordinary consequences of 
 his own acts, it is a wilful and intended wrong; it is malice — 
 a thing done malo aniino — in the sense of the law ; and no other 
 malice need be proved, to show the act to be a nuisance." 
 
 In New York, the Court of Appeals has declared a race or speed con- 
 test of automobiles which works an obstruction to the highway "per se 
 a nuisance."^^ 
 
 Judicial decisions, everywhere, show the application by the courts, 
 of the doctrine of nuisance to the unrestricted operation of motor ve- 
 hicles in the streets. The whole subject is forcefully summed up in 
 Radnor Township v. Bel V where it is said : 
 
 "It is common law and common sense that a man must use 
 the highway in a reasonable manner, and not interfere with its 
 reasonable use by other citizens. If the continuous use of one 
 vehicle may be a nuisance it is at least equally dangerous to the 
 
 isDoherty v. Ayer, 197 Mass. 241, 183 N. E. 677 ; Nason v. West, 31 Misc. 583, 
 65 N. Y. Supp. 651; Chicago v. Banker, 112 111. App. 94, 1904; Indiana Springs 
 Co. V. Brown, 165 Ind. 465, 468, 74 N. E. 615; Lewis v. Amorous, 3 Ga. App. so, 
 59 S. E. 338 ; Davis v. Thornburg, 149 N. C. 233, 62 S. E. Repr. 1088. 
 
 "80 Mass. 69, 78. 
 
 "Johnson v. City of New York, 186 N. Y. 139, 146, 78 N. E. 7iS- 
 
 1827 Pa. Super. Ct. i, 7- 
 
 230 
 
NUISANCE § 312 
 
 public safety to permit a number of automobiles, varying in 
 size and design, to use the highways at an unrestricted speed." 
 
 The opinion goes on to justify the town ordinance and state statute 
 under which the ordinance was adopted fixing specific speed limita- 
 tions, and concludes by calling attention to the general provision : 
 
 "that nothing in this section shall permit any person or per- 
 sons to drive an automobile at a greater speed than is reason- 
 able, regarding traffic, danger, or injury to property, at any 
 time or at any place." 
 
 An automobile is not a nuisance in itself and it is not negligence per 
 se for a person to use one in travelling along public highways and 
 across public bridges.^' 
 
 § 312. Effect of Violation of Law. — These authorities warrant the 
 proposition that any use or operation of a motor vehicle in violation of 
 1 easonable or statutory speed limitations, brings the offender within the 
 common law of nuisance, and so likewise does any operation not having 
 regard to the use of the way, the condition of traffic, or the lives and 
 safety of the public.^" 
 
 isGaskins v. Hancock, 156 N. C. 56, 72 S. E. 80, i N. C. C. A. loi. 
 20See for example Mass. St. 1909, chap. 534, §§ 14, 16, 22. As to effect of 
 various illegal acts, see § 1075 et seq. 
 
 231 
 
CHAPTER XVI 
 
 DANGEROUS AGENCIES 
 § 313. Changing point of view. 
 
 314- At common law. 
 
 315- Test is capacity to do harm. 
 
 316. Duty dependent on knowledge of danger. 
 
 317. Question one of fact. 
 
 318. Danger as reason for legislation. 
 
 319. Danger from gasoline. 
 
 320. Motor vehicle cases emphasizing the danger of the automobile. 
 
 321. Motor vehicle cases refusing to consider the automobile dangerous 
 
 per se. 
 
 322. The present doctrine. 
 
 323. Reference to automobile as dangerous. 
 
 § 313. Changing Point of View.— The subject of "Dangerous 
 Agency," or, as it is sometimes expressed, "dangerous instrumentality," 
 when applied to motor vehicles, is one concerning which there has been 
 some controversy, and, at times a seeming diversity of opinion. Ju- 
 dicial differences, however, are generally more apparent than real, 
 when there is kept in mind the distinction between the agency itself, 
 .;tnd the manner of using it. It is also to be remembered that with the 
 rapid development of scientific knowledge and progress in mechanical 
 invention, things which awhile ago, were viewed as instruments of 
 terror and of almost certain destruction, are now esteemed among the 
 beneficial influences of modern civilization. With this change there 
 has come about a modification of the limits and rules within which the 
 law once held this subject. The point of view to-day is less the thing 
 itself, and more its use, the hedges of the law being planted so as to 
 guard against abuse. The proper and safe employment of all natural 
 products and forces is commended by the law. Their improper, and un- 
 safe exercise is denounced, and the test is the degree of care required 
 "according to the circumstances," to prevent them becoming dangerous 
 instrumentalities. 
 
 1232 
 
DANGEROUS AGENCIi;S § 3^4 
 
 § 314. At common law, a dangerous agency or instrumentality, is 
 "a thing dangerous unless particularly guarded,"^ and if cared for im- 
 properly, it is a nuisance per se, rendering the owner liable as an in- 
 surer. Some authorities go so far as to apply the doctrine res ipsa 
 loquitur, though, as to this, it has been held differently by the New 
 York Court of Appeals in Cosulich v. Standard Oil Co.' 
 
 In many respects there is so close an analogy between the locomo- 
 tive and the automobile, that it seems reasonable that some of the prin- 
 ciples of law applying to the one apply in a number of features to the 
 other. The powerful engine, its weight and speed, all contribute to 
 the similarity. In addition there is present in most motor cars an 
 agent of one kind or another, which, unless kept under careful guard, is 
 capable of causing injury and even death.* 
 
 Gasoline vapor mixed with air is a powerful explosive, and in liquid 
 form, gasoline is peculiarly apt in taking fire. Every one knows the 
 destructive power of steam. These agencies are used under high pres- 
 sures and, negligently cared for, are potent in possibilities for harm. 
 When vigilently guarded and guided, however, they furnish "a bene- 
 ficial means of transportation,"' and bring the vehicle within the court's 
 assertion," that "there is nothing dangerous in the use of an automo- 
 bile when managed by a safe and prudent driver."' 
 
 In the category of dangerous instrumentalities, both Dr. Wharton 
 and Df. Thompson cast explosives, and of this class, give prominent 
 place to steam. As marking the change which progress has wrought. 
 Dr. Thompson' says : 
 
 "But steam has come into such general use as a motive power, 
 not only in the operations of commerce and manufactures, but 
 even in those of agriculture, that a rule of law making those 
 who employ it insurers of the safety of others against damages 
 arising from its use, would not only be contrary to the analogies 
 
 ^Wharton on Negligence, 2d ed., sec. 851. 
 
 8122 N. Y. 118 (i Thompson Com. on Negligence, 2d ed., sees. 758, 760). 
 
 *&ee Chapter XVII, on Gasoline. 
 
 "Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 94 N. E. 615. 
 
 *McIntyre v. Orner, 166 Ind. 57, 62, 76 N. E. 750. 
 
 'See also Hannigan v. Wright, S Pennew. 537, 541, 63 Atl. 234, 1905 ; McFern v. 
 Gardner, 121 Mo. App. i, 1906; Simeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 
 Repr. 778, 779; State v. Watson,2i6 Mo. 420, 115 S. W. Repr. ion (Mo.), 1909. 
 
 ^Com. on Negligence, 2d ed., sec. 762. 
 
 233 
 
§ 3^4 DANGEROUS AGENCI^ 
 
 of the law, but would impose serious restraints upon the most 
 necessary and beneficial industries." 
 
 Dr. Wharton* says : 
 
 "No doubt a steam engine is a powerful agent" * * * 
 (quoting Steamboat New World v. King, i6 How. U. S 46g 
 quoted elsewhere herein). "At the same time it must also be 
 kept m mind that steam engines are now among the necessary 
 agents of business life, and that while diligence in their man- 
 agement IS required in proportion to their danger, yet in no 
 case IS the user to be treated as an insurer of the instrument 
 used." 
 
 The motor vehicle has come to be a lawful means of travel, recog- 
 nized everywhere by legislation and judicial decision. As it is law- 
 ful, it cannot be a nuisance per se, from which it would seem to follow 
 that per se it is not a dangerous instrumentality in the common law 
 sense, but may become so actually, through a relaxation of the rules 
 governing its care and use. L,ord Coleridge, C. J., in Rayner v. 
 Mitchell,^" speaking of the doctrine of respondeat superior, states the 
 matter in precisely the light in which the subject should be viewed from 
 the present day standpoint of the motor vehicle. He says : 
 
 "It was laid down in Lord Holt's time, and repeatedly since, 
 that, wherever the master intrusts a horse or carriage, or any- 
 thing which may readily he made an implement of mischief, to 
 his servant," etc. 
 
 This language is far from calling a "horse or carriage" a dangerous 
 agency but it clearly recognizes that it may become an "implement of 
 mischief." 
 
 The doctrine of respondeat superior has be^ invoked in such cases, 
 as it applies when a person intrusts to another the use and management 
 of dangerous instrumentalities which he employes in the prosecution 
 of his business or affairs. Dr. Thompson" presents the general rule 
 on the subject of dangerous instrumentalities, as follows : 
 
 "Every person who employs highly dangerous agencies upon 
 his premises or about his business stands under the obligation 
 
 »0n Negligence, 2d ed., sec. 857. 
 "L. R. 2 Com. Pleas Div. 357. 
 "Com. on Negligence, 2d ed., sec. 523. 
 
 234 
 
DANGBROUS AGBNCIES § 3^5 
 
 of exercising, to the end that third persons shall not be injured 
 through those ageticies, a degree of care proportionate to the 
 danger of such injury. This has been characterized as a very 
 high degree of care, and in some cases, according to one view, 
 the person employing the agency is liable as an insurer. If a 
 person employing such an agency commits the custody of it to 
 his servant, he thereby commits to the servant the obligation 
 to discharge his own duty of caring for it so that it will not 
 injure third persons.. If, while so charged with this duty ,the 
 servant negligently abandons the custody of it, so that a third 
 person is injured in consequence of this negligence, the master 
 will be liable; and it will make no difference at all with his 
 liability, whether, in so abandoning the duty, the servant did 
 so for the purpose of effecting some purpose of his own, or in 
 furtherance of the business of his master. In either case the 
 master has committed to the servant the discharge of a duty 
 which the law has imposed upon the master for the safety of 
 third persons, and the servant has abandoned that duty; and 
 this is enough to render the master liable, without any regard to 
 the motive of the servant." 
 
 § 315. Test is Capacity to do Harm. — The matter really and at 
 the last, in any view, comes to this that the true test is the capacity of 
 the instrument or means employed, for doing harm to others, thus a 
 person walking along the street is capable of doing but little harm to 
 his fellow travellers, hence a less degree of care is required of him, 
 than is demanded of a person driving a horse and carriage or a team 
 of horses, the latter having under his control an instrumentality which 
 unless carefully managed is capable of inflicting no little injury. The 
 operator of a motor vehicle has in his custody an instrument of great 
 power and many possibilities of danger, hence of him is required a very 
 high quality of skill, care and caution. Barrows^^ thus speaks of rail- 
 road trains : 
 
 "The speed and weight of a railroad train constitute a dan- 
 gerous agency, raising the degree of actual care commensurate 
 with its safe operation vastly higher than that required in driv- 
 ing a delivery wagon or a coach." 
 
 i^On Negligence, sec. 132. 
 
 235 
 
§ 3^6 DANGEROUS AGENCIES 
 
 All of which might be as well said of an automobile. 
 In Philadelphia, Etc., R. R. v. Derby" the United States Supreme 
 Court say : 
 
 "When carriers undertake to convey persons by the powerful 
 but dangerous agency of steam, pubUc policy and safety require 
 that they may be held to the greatest possible diligence." 
 
 No lower degree of diligence on the highways on the part of the 
 motorist, will satisfy the requirements of public safety. 
 
 § 316. Duty dependent on Knowledge of Danger. — Mr. Justice 
 Holmes, in Com. v. Pierce,^* in an opinion widely quoted in this coun- 
 try and in England, places the modern doctrine of dangerous instru- 
 mentality upon a sure foundation. He says : 
 
 "But knowledge of the dangerous character of a thing is 
 only the equivalent of the way it will act. We admit that, if 
 the thing is generally supposed to be universally harmless, and 
 only a specialist would foresee that in a given case it would 
 do damage, a person who did not foresee it, and who had no 
 warning, would not be held liable for the harm. If men were 
 held answerable for everything they did which was dangerous 
 in fact, they would be held for all their acts from which harm 
 in fact ensued. The use of the thing must be dangerous ac- 
 cording to common experience, at least to the extent that there 
 is a manifest and appreciable chance of harm from what is 
 done, in view either of the actor's knowledge or of his con- 
 scious ignorance. And therefore, again, if the danger is due 
 to the specific tendencies of the individual thing, and is not 
 characteristic of the class to which it belongs, which seems to 
 have been the view of the common law with regard to bulls for 
 instance, a person to be made liable must have notice of some 
 past experience, or, as is commonly said 'of the quality of his 
 beast.' I Hale P. C. 430. But if the dangers are character- 
 istic of the class according to common experience, then he who 
 uses an article of the class upon another, cannot escape on the 
 ground that he had less than the common experience. Com- 
 mon experience is necessary to the man of ordinary prudence, 
 and a man who assumes to act as the defendant did, must have 
 it at his peril. When the jury are asked whether a stick of 
 a certain size was a deadly weapon, they are not asked further 
 
 i3i4 How. 468. 
 1*138 Mass. 16s, 179. 
 
 236 
 
DANGEROUS AGENCIES § 3^7 
 
 whether the defendant knew that it was bo. It is enough that 
 he used and saw it such as it was." 
 
 In this case the agency employed was kerosene oil, and it was upon 
 the views just quoted, that the court affirmed the remark of the judge 
 in charging the jury, at the trial : 
 
 "Whenever men are called upon to act with dangerous agen- 
 cies, the law holds them to some degree of criminal responsi- 
 bility. If they are grossly careless, or reckless and presumptu- 
 ous they are guilty." 
 
 § 317. Question one of fact. — The matter is therefore one of fact 
 concerning the exercise of diligence proportional to the danger, and, 
 as such, under proper instructions from the court, belongs to the jury. 
 Judge Cooley, in 1876, in Macomber v. Nichols,^^ speaking of a steam 
 traction engine on the highways, says : 
 
 "The engine as a means of locomotion in the highway was 
 not necessarily a nuisance. It might possibly be a nuisance at 
 some times and under some circumstances, and even where it 
 might be proper to make use of it the manager or owner might 
 be liable to damages for negligence in management to the in- 
 jury of others. But the question in any such case must be one 
 of fact; a question of reasonable conduct and management on 
 the part of both parties, and should be submitted to the jury 
 as such." 
 
 § 318. Danger as Reason for Legislation. — ^Whenever the ques- 
 tion has arisen the courts have relied on the known danger from the 
 speed and power of motor vehicles as a reason for legislation control- 
 ing their use. 
 
 In Com. v. Kingsbury^" Chief Justice Knowlton says : 
 
 "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 travellers on the highways as well as to those rid- 
 ing in the automobile. In order to protect the public great 
 care should be exercised in the use of them. Statutory regu- 
 
 i°34 Mich. 212, 220. 
 
 "199 Mass. 542, S44, 85 N. E. 848, 127 Am. St. Rep. 513. 
 
 237 
 
§ 3^9 DANGEROUS AGENCXHS 
 
 lation of their speed while running on the highway is reason- 
 able and proper for the promotion. of the safety of the pnWic, 
 It is the duty of the legislature, in the exercise of the police 
 power, to consider the risks that arise from the use of new in- 
 ventions applying the forces of nature in previously unknown 
 ways. The principle is too familiar to need discussion. It has 
 been applied to automobiles in different states with the approval 
 of the courts."^^ 
 
 In State v. Swagerty^' the constitutionality of motor vehicle legisla- 
 tion was called in question. Mr. Justice Burgess, speaking for the 
 court, quoting the Supreme Court of the United States in Railroad v. 
 Beckwith,^' says : 
 
 " 'When the calling or profession or business is attended 
 with danger, or requires a certain degree of scientific knowl- 
 edge upon which others must rely, then legislation properly 
 steps in to impose conditions upon its exercise.' It is certainly 
 true that the business of the man who operates and propels an 
 automobile along the public highway, called a chauffeur, is such 
 a business as is above alluded to. It is attended with danger 
 and requires a degree of scientific knowledge upon which others 
 must rely. These horseless vehicles are certainly capable of 
 being propelled at a greater rate of speed than any of the ordi- 
 nary vehicles known to the travelling pubhc prior to their in- 
 vention, and if they may travel at any rate of speed of which 
 they are capable, persons injured would have no remedy, ex- 
 cept such negligence as the common law gives a remedy for." 
 
 § 319. Danger from Gasoline.— The dangerous character of the 
 motive power of gasoline automobiles has also been the subject of 
 special consideration. In Preston v. ^tna Ins. Co.=» Chief Judge Cul- 
 len, uses the following language : 
 
 'The motive power used in the auotmobile, volatile and in- 
 flammable in the highest degree, was a constant source of danger 
 by fire. Fire might happen from many circumstances, some ot 
 
 "Citing Com. V. Boyd, 188 Mass. 79, 74 N. E. 255; Christy v. Elliott 216 111. 
 31, 74 N. E. 1035; People v. Schneider, 139 Mich. 673. 103 N. W. 172; People v. 
 MacWilliams, 91 App. 176, 86 N. Y. Supp. 357- 
 
 "203 Mo. 517, 526, 102 S. W. 483. 
 
 i»i29 U. S. 29, 9 S. Ct. 207. 
 
 20193 N. Y. 142, 145. 8S N. E. 1006. 
 
 238 
 
DANGEROUS AGENCIES § 3^9 
 
 which it was possible to foresee, others which it was not possi- 
 ble to foresee. It might be caused from some defect in the 
 electric apparatus or in the valves controlling the flow from the 
 tank into the motor setting fire to the whole store of gasoline. 
 If tile vehicle was run at a high speed the. machinery might be- 
 come so heated as to cause fire and, as already suggested, the 
 fire might be caused in many other ways which could not be 
 anticipated." 
 
 In O'Hara v. Nelson^^ Vice Chancellor Garrison presents a luminous 
 consideration of the subject of gasohne as an explosive, and explosives 
 of a kindred nature which are recognized "dangerous agencies." 
 Among other things he says : 
 
 "But if the gasoline is confined, and has been vaporized by 
 coming in contact with the air, a gas or vapor is formed, which, 
 when ignited, explodes with all the incidents connected with 
 the most disastrous character of explosiion. * * * Gasoline 
 vaporizes almost immediately upon coming in contact with oxy- 
 gen." * * * " 'The keeping or manufacturing of gunpowder 
 or of fireworks does not necessarily constitute a nuisance per se. 
 That depends upon the locality, the quantity and the surround- 
 ing circumstances, and not entirely upon the degree of care 
 used.' " (Heeg v. Licht, 80 N. Y. 579.) "If this be the rule 
 with respect to gunpowder a fortiori, should it be applied to 
 gasoline? 'As an explosive' it is said 'the danger is ten times 
 greater than that of gunpowder.' " Standard Oil v. Tierney, 
 14 L. R. A. 677 (at p. 682). It was well said by Chief Justice 
 Thompson of the Pennsylvania Supreme Court in Rhodes v. 
 Dunbar, 57 Pa. St. 274, 98 Am. Dec. 221, cited with approval 
 in Rudder v. Koopman, 37 L. R. A. 489, 'It is not on the ground 
 alone of their liability to fire primarily or even secondarily, that 
 they may be possibly dealt with as nuiances, but on account of 
 their liability to explosion by contact with the smallest spafk 
 of fire and the utter impossibility to guard against the conse- 
 quences, or set bounds to the injury which being instantaneous 
 extends alike to property and persons within its reach. The de- 
 structiveness of these agents results from the irrepressible gases, 
 once set in motion, infinitely more than from the fires which 
 might ensue as a consequence. Persons and property in the 
 neighborhood of a burning building, let it burn ever so fiercely, 
 in most cases, have a chance of escaping injury. Not so when 
 explosive forces instantly prostrate everything near them, as in 
 
 2i;i N. J. Eq. 161, 63 Atl. 836. 
 
 239 
 
§ 320 DANGEROUS AGENCIES 
 
 the instances of powder, nitrogylcerine and other chemicals of 
 an explosive or intensely inflammable nature."^^ 
 
 § 320. Motor Vehicle Cases Emphasizing the Danger of the Au- 
 tomobile.— Although we believe there has been little or no real con- 
 flict among the cases on the subject when we read them in the light of 
 the principles laid down above still some courts have in the past ac- 
 cented the danger from automobiles more than others. Among deci- 
 sions of the first class are the following: 
 
 In McFern v. Gardner^' one of the occupants of a buggy had been 
 killed in consequence of a collision with defendant's automobile. The 
 presiding judge, Mr. Justice Bland, speaking for the court, said : 
 
 "But defendant contends the chauffeur was under no legal 
 obligation to keep a watch ahead for other vehicles, and on the 
 first appearance of danger to use ordinary care to avoid the col- 
 lision. * * * 
 
 "The automobile is a modern invention, propelled by steam, 
 electricity or gasoline, and attains a very high rate of speed. 
 It is of great weight, made very strong and in a collision with 
 an ordinary vehicle is capable of smashing it without serious 
 damage to the machine itself, and while it has equal rights on 
 the road with the ordinary vehicle, it is a sort of menace to the 
 travelling public and on account of the danger to others inci- 
 dent to its operation upon public highways, the chauffeur in 
 charge is bound to exercise care commensurate with the risk of 
 injury to other vehicles and pedestrians on the road; and this 
 risk of injury, it seems to us, is as great if not greater than is 
 the risk of injury to vehicles and pedestrians traveling on and 
 across streets upqn which street cars are operated by electric 
 power,^* and we can see no reason why the chauffeur in charge 
 of an automobile, travelling on a public highway in a populous 
 city should not be held to the same degree of care in respect 
 to pedestrians and other vehicles upon the street as is a motor- 
 man in charge of a street car running on^a public street; if so, 
 then it was the duty of defendant's chauffeur to keep a vigilant 
 watch and on the first appearance of danger to take proper steps 
 to avert it." 
 
 "See upon the general subject: Vincent v. Crandall, 131 N. Y. App. Div. 
 200, 115 N. Y. S. 600; Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016. 
 M121 Mo. App. I, 10- 
 2*Italics by the author of this book. 
 
 240 
 
DANGEROUS AGENCIES . § 3^0 
 
 Automobiles were also held to be more dangerous than a street car 
 or even a railroad train as the latter are propelled along fixed rails 
 while the automobile may be anywhere in the street.^" 
 
 See also in Emerson Co. v. Pearson^* wherein Mr. Justice Chase 
 observes, in considering the statute of that state with regard to motor 
 vehicles : 
 
 "The vehicles referred to in this chapter have recently come 
 into use, and have introduced a new and serious peril to trav- 
 ellers upon highways. They are propelled by great power de- 
 veloped by steam, electricity, or the explosion of gasoline vapor, 
 and may be driven with great speed. * * * Skill and care are 
 required in operating them to avoid injury to other travellers." 
 
 In State v. Watson^^ the same court, in affirming a conviction of 
 manslaughter in a motor vehicle accident case, speak of automobiles as 
 "dangerous machines," the operation of which "is always attended 
 with more or less danger." 
 
 In one of the late expressions on the subject the court vigorously 
 applies the doctrine of dangerous agency to the automobile. What is 
 there said, however, confines the subject to such times and occasions 
 as the vehicle is under the controlling operation and guidance of the 
 hand of man. The court does not dwell upon the distinguishing fea- 
 ture of ordinary common law dangerous agencies as being instru- 
 mentalities which are inherently affected by independent natural forces 
 or separate volition. As relating, however, to the responsibility of an 
 owner for acts of incompetency or negligence by persons using his ma- 
 chine mth his consent, it presents a forcible argument for judicial con- 
 sideration.^" 
 
 While it has been generally held in judicial decisions that a motor 
 vehicle, as such, does not fall within the technical description of a dan- 
 gerous instrumentality per se, so as to render the master liable for the 
 acts of the servant merely because the servant is in possession of the in- 
 strument of danger, still the courts have uniformly held both the mas- 
 
 25Weil V. Kreutzer, 134 Ky. 563, 121 S. W. 471, 24 L. R. A. N. S. SS7. 
 2674 N. H. 22, 23, 64 Atl. 582. 
 "216 Mo. 420, IIS S. W. Repr. loii. 
 
 28Ingraham v. Stockatnore, 63 Misc. 114, 118 N. Y. Supp. 399. See also Weil 
 V. Kreutzer, 134 Ky. 563, 121 S. W. 471, 24 L. R. A. N. S. SS7- 
 
 241 
 16 
 
§ 321 , DANGEROUS AGENCIES 
 
 ter and the servant to a very high degree of care in the use and opera- 
 tion of the vehicle.''' 
 
 In Jones v. Hoge°° it was held that "An automobile is not such a 
 dangerous agency as to render the owner liable to travelers in the 
 highway for injuries inflicted therewith by a servant irrespective of 
 the scope of the employment, and merely because the owner has made 
 it possible for the servant to take out the machine at his pleasure." It 
 therefore comes to this, that the owner of a motor vehicle in this par- 
 ticular, is no more and no less responsible for the acts of his chauffeur, 
 than is the owner of a horse and carriage for the acts of his coachman 
 or driver, and the rules of law under the doctrine of respondent su- 
 perior which apply to the one, apply with equal force to the other. 
 
 § 321. Motor Vehicle Cases refusing to Consider the Automo- 
 bile Dangerous per se. — The courts early and with consistency, while 
 recognizing the danger from the automobile when improperly used, 
 have refused to apply to it the old common law doctrine that he who 
 owns it must prevent it from doing harm at his peril. 
 
 Jones V. Hoge'' was a case wherein the plaintiff sought to attach to 
 the automobile the common law character of dangerous agency, and 
 thereby render the owner liable for negUgent acts of the chauffeur, out- 
 side the scope of his employment. The court, by Mr. Justice Root, 
 say : 
 
 "It is contended by respondent that an automobile is a ma- 
 chine of such danger as to render the owner thereof liable for 
 injuries caused thereby, while operated by his chauffeur, and 
 even though not engaged directly in his line of employment, if 
 the master has made it possible for the chauffeur to take out 
 and operate such machine at pleasure ; that the master is holden 
 to employ only such chauffeurs as are competent and careful, 
 and must be holden for damages occasioned by their incompe- 
 tencv or recklessness when making use of the machine, even 
 though out of the line of employment ; and also that m this case, 
 Barnes" (the chauffeur) "was within the apparent scope of his 
 authority. 
 
 "We do not think the contentions can be upheld. Barnes was 
 not using the machine to carry out any purpose for which he 
 
 "Lampe v. Jacobsen, 46 Wash. 536, 90 Pac. 6S4. 
 
 8O47 Wash. 663, 92 Pac. 433- 
 
 3147 Wash. 663, 92 Pac. 433- 
 
 242 
 
DANGEROUS AGENCIES § S^I 
 
 was employed. We do not think that an automobile can be 
 placed in the same category as locomotives, gunpowder ,_ dyna- 
 mite, and similar dangerous machines or agencies. It is true 
 that the operation of this machine is attended with some dan- 
 gers not common to the use of the ordinary vehicle, and we 
 believe and have already held that those who operate these ma- 
 chines must he held to that degree of care which is commen- 
 surate with the dangers naturally incident to their use.^^ But 
 we do not believe that the law would charge the owner of an 
 automobile with a liability for damages caused by the operator 
 thereof under the circumstances found here. In, the case of 
 Robinson v. McNeill'* this court held that, where a section 
 foreman who had charge of a hand-car which he used to travel 
 over the road, loaned the same to some boys, one of whom was 
 thereby injured, the railroad company was not liable as the 
 foreman was not authorized to permit the hand-car to be used 
 for such a purpose." 
 
 It is to be noted that in the State of Washington, the motor vehicle 
 law of 1905, under which this case was decided, makes no provision 
 for licensing operators, or for examination of their qualifications or of 
 ability to operate. In so far as it appears from the statute referred 
 to, anyone may drive an automobile on the streets and highways in 
 that state, as freely as he might drive a horse. 
 
 In Lampe v. Jacobson,'* cited in Jones v. Hoge (supra), decided 
 only six months earlier than that case, the same court speaking through 
 the same justice, say : 
 
 "The operation of an automobile upon the crowded streets 
 of a city necessitates exceeding carefulness on the part of the 
 driver. Moving quietly as it does, without the noise which ac- 
 companies the movements of a street car, or other ordinary 
 heavy vehicle, it is necessary that caution should be continu- 
 ously exercised to avoid collisions with pedestrians unaware of 
 its approach. The speed should be limited, warnings of ap- 
 proach given, and skill and care in its management so exercised 
 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." 
 
 '^Italics by the author of this book. 
 53i8 Wash. 163, SI Pac. 355. 
 3*46 Wash. 536, 90 Pac. 684. 
 
 243 
 
^ 321 DANGEROUS AGENCIES 
 
 In Slater v. Advance Thresher Co.- Mr. Justice Brown, in a motor 
 
 whienotTnTnT''"'^ by a .servant, thougnc?a's?oned 
 wniie not in the performance of h s duty, the master is ),M^ 
 
 th?fi?eTS °" "?"' ^'^"^"^^^ '^ fouirsuch' as is 
 
 Lewis V. Amorous^' was a case where a child had been run over and 
 killed in a city street, by one Pybus, while operating defendant's auto- 
 mobile. Mr. Justice Powell, says on this subject : 
 
 "It is insisted in the argument, that automobiles are to be 
 classed with ferocious animals, and that the law relating to the 
 duty of the owners of such animals is to be applied. 
 
 "It is not the ferocity of automobiles that is to be feared, 
 but the fer^odty of those who drive them.^^ Until human 
 agency intervenes they are usually harmless. * * * There are 
 times when these machines not only lack ferocity, but assume 
 such an indisposition to go that it taxes the limits of human 
 ingenuity to make them move at all. They are not to be classed 
 with bad dogs, vicious bulls, evil disposed mules and the like. 
 In the case of Berman v. Schultz, 81 N. Y. Supp. 647, 1903, 
 quoted in Huddy on the Law of Automobiles, 64, it is said, as 
 to the duty of an owner who leaves his automobile unguarded 
 at the street curb: 'When, however, the person in charge of 
 a motor car leaves it upon the street, it is his duty to take all 
 reasonable care that no injury will result during the time the 
 machine is there, especially if the car be left standing alone 
 with no person in charge of it. It is not his duty, before leav- 
 ing the car, to chain it to a post, or in some manner to fasten it 
 so that it would be impossible for it to be started by a third 
 
 »sp7 Minn. 305, 107 N. W. 133. 
 
 "Citing Matson v. Railway Co., 95 Minn. 477, 104 N. W. 443. 
 
 «T3 Geo. App. SO. 59 S. E. 338. 
 
 '^Italics by the author of this book. 
 
 244 
 
DANGEROUS AGENCIES § 321 
 
 person. If, during the absence of the person in charge of the 
 car, and, after he has turned off the power and appHed the 
 brake, the car be started by the wilful act of two small boys, 
 and collide with a wagon, the unauthorized act of the boys is 
 the proximate cayse of the injury, and the owner of the car is 
 not liable.' Without approving that decision, so far as it places 
 the act of small boys upon the same footing with those of 
 conscious agents sui juris, we cite the case upon the general 
 principle included. * * * (p. 57). In running automobiles 
 are dangerous machines. This state has not, as many states 
 have done, enacted those regulations which the introduction of 
 this new mode of conveyance would seem to make salutary. 
 Until some change is made, the responsibility of persons own- 
 ing, keeping, and operating motor cars will be determined ac- 
 cording to the precedents of the "common law and the general 
 law upon cognate subjects. Reckless driving of these machines 
 brings upon the person responsible not only civil liabilities, but 
 sometimes the penalties of the criminal law. Indeed, as we 
 learn outside the record, Pybus, for the reckless taking of the 
 life of the child whose homicide is the basis of this action, has 
 been convicted and sentenced for involuntary manslaughter. 
 The persons immediately responsible will be held to full lia- 
 bility ; but persons only so remotely connected with the injury 
 as these defendants are, cannot be so held." 
 
 In Danforth v. Fisher*" the Supreme Court of New Hampshire say 
 that there is no force in : 
 
 "Plaintiff's contention that the owner of an automobile is lia- 
 ble to strangers in the same way and to the same extent he would 
 be if it were a wild animal. * * * There is nothing inher- 
 ently dangerous about an automobile any more than about an 
 axe. Both are harmless so long as no one attempts to use them, 
 and both are likely to injure those who come in contact with 
 them when they are used for the purpose for which they were in- 
 tended." 
 
 In Cunningham v. Castle*^ Mr. Justice Clark, in considering the re- 
 sponsibility of the employer for the chauffeur's acts, and speaking for 
 the majority of the court, says : 
 
 "It is urged that the automobile was a dangerous instrumen- 
 tality, and that, having been entrusted to the chauffeur, the lia- 
 
 ^'Italics by the author of this book. 
 
 "7S N. H. Ill, 71 Atl. S3S (N. H.). 
 
 «i27 N. Y. App. Div. s8o. Ill N. Y. Supp. 1057. 
 
 <245 
 
§ 322 
 
 DANGEROUS AGfiNCIES 
 
 bility of the master still attached because of its dangerous char- 
 acter. The automobile is not necessarily a dangerous devic 
 It IS an ordinary vehicle of pleasure and business. It is no rJore 
 dangerous per se than a team of horses and a carriage ^ a 
 
 the%h'.nff.'f °''' '' " "''"'' ^^'^'^- '^''' *« "° evidence tha' 
 chfnf * * ^'^tI "°* '^TP'*""* ^"'^ 1"^"fi^d to run the ma- 
 3 ^ A X ^ gfinekeeper had borrowed his master's gun, 
 
 nwn otf'^A T *^^, "l^*^ °" ^ ^""t'°& expedition of his 
 own, and had neghgently shot a man, would the master be re- 
 sponsible because he was using that instrumentality which mieht 
 be dangerous if carelessly used— a gunf"*" 
 
 _ In the same case, Mr. Justice Houghton, speaking for the dissenting 
 judges, says: 
 
 "While a powerful automobile may not, strictly speaking, be 
 deemed a dangerous instrument, it may become so if recklessly 
 driven. They are so dangerous that the legislature has pre- 
 scribed that their ownership must be registered and the driver 
 licensed, and that speed in different localities must be regulated. 
 Motor Vehicle Law, Laws 1904, p. 1311, c. 538. The defendant 
 recognized this when he instructed his servant to be careful on 
 the trip, which, he permitted him to make. If a railroad official 
 should loan a locomotive to one of the company's engineers for 
 the purpose of hurriedly visiting a distant locality, it could 
 hardly be said that the engineer alone would be liable for in- 
 juries inflicted upon third persons." 
 
 § 322. The Present Doctrine. — An examination of the cases of the 
 last five years discloses that the increasing popularity of motor ve- 
 hicles has had its effect on the courts with the result that all the deci- 
 sions of that period are unanimous that a motor vehicle is not in the 
 class of dangerous agencies.*' 
 
 The courts hold with practical if not absolute uniformity that an 
 automobile is not to be classified with what are called dangerous in- 
 strumentalities such as ferocious animals, dynamite, gunpowder and 
 other inherently dangerous contrivances or agencies. Liability for 
 
 *2Italics by th« author of this book. 
 
 I'Farnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233; Tyler v. Stephan, 
 173 Ky. 770, 174 S. W. 790; Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096, 4 N. 
 C C A. 11; McNeal v. McKain, 33 Okla. 449, 126 Pac 742, 41 h. R. A. N. S. 
 775; Allen V. Bland ,Tex. Civ. App.), 168 S. W. 35, 8 N. C. C. A. 299; Birch 
 v. Abercrorabie, 74 Wash. 486, I33 Pac. 1020, 50 L. R. A. (N. S.) 59. 
 
 246 
 
DANGEROUS AGENCIES § 3^3 
 
 injuries arising from operating automobiles is based on negligence or 
 wilful tort in the use or operation and not on the theory of classifying 
 such machines as inherently dangerous agencies.** 
 
 Prudently driven, they are safer than the horse-drawn vehicle.*^ 
 
 The driver of an automobile is not bound to a high degree of care 
 on the ground that he is using a dangerous instrument but he is bound 
 only to a reasonable degree of care.*® 
 
 An automobile is not a dangerous instrument and the liability of 
 the owner depends upon whether at the time of the act complained of 
 the chauffeur was acting within the scope of his employment.*^ 
 
 "The automobile furnishes an improved means of travel. It is to 
 be welcomed as a saver of time and a protection to man's favorite do- 
 mestic animal the horse, against long drives. It is said to be in use 
 in all civiHzed countries and it has come to stay. We are told that there 
 are 750,000 automobiles in use in the United States alone. The law 
 therefore does not denounce the use of an automobile on a public high- 
 way," and one is not guilty of negligence because he used it on the 
 streets of a city.*' 
 
 § 323. Reference to Automobile as Dangerous. — An automobile is 
 not dangerous per se. Hence an instruction is erroneous that "an au- 
 tomobile when run upon the public highway is considered a dangerous 
 apphance as matter of law."*' 
 
 But it is not error for the court to refer to an automobile as a "dan- 
 gerous machine," where the legislature has made special rules for its 
 guidance."" 
 
 And it is still proper to refer to and rely on the dangerous possibili- 
 ties of the automobile in the hands of reckless drivers. So a charge is 
 proper that when a man uses a dangerous machine he must guard the 
 
 **FieIder v. Davison, 139 Ga. 509, yj S. E. 618. 
 
 *=Parker v. Wilson, 179 Ala. 339, 60 So. 150, 43 I,. R, A. (N. S.) 87, 8 N. C. 
 C. A. 300. 
 
 "Leach V. Asman, 130 Tenn. 510, 172 S. W. 303. 
 
 ^Goodman v. Wilson, 129 Tenn. 464, 166 S. W. 752, 51 L. R. A. N. S. 1116, 6 
 N. C. C. A. 370; Colwell v. .;Etna Bottle & Stopper Co., 33 R. I. 531 82 Atl 
 388, 2 N. C. C. A. 430. - ' 
 
 *»Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128. 
 
 *9Daily v. Maxwell, 152 Mo. App. 41s, 133 S. W. 351 
 
 "Williams v. Raper, 139 Ga. 811, 78 S. E. 253. 
 
 247 
 
§ 323 DANGEROUS AGENCIES 
 
 exercise of that right with proper care and due regard for the lives and 
 safety of others on the street when applied to a racing car stripped." 
 
 "In the light of common knowledge courts can well take judicial 
 notice of the automobile, not only as a most useful and pleasing means 
 of transporting persons and property for pleasure or business when 
 properly and cautiously driven, but as 'a vehicle in its possibilities so 
 destructive in the hands of careless and reckless drivers as to spread 
 over the land the maimed and dead until it has belittled the cruelties 
 of the car of juggernaut.^^ 
 
 51 Madding v. State, ii8 Ark. 506, I77 S. W. 410. 
 
 "^Colborne v. Detroit United Ry. Co., I77 Mich. 139, 143 N. W. 32, 4 N. C. C. 
 A. 383. 
 
 248 
 
CHAPTER XVII. 
 
 GASOLINE 
 
 § 324. Gasoline, peculiarities of. 
 
 325. Degree of care required. 
 
 326. Negligence in regard to gasoline. 
 
 327. Gasoline as a nuisance. 
 
 328. Gasoline not a nuisance per se. 
 
 329. State statutes, local regulations, etc. 
 
 330. Federal statutes. 
 
 § 324. Gasoline, peculiarities of. — Gasoline is a volatile distillation 
 from crude petroleum and becomes explosive when its vapor is mixed 
 with the oxygen of the air. For the purpose of fire insurance "the 
 term 'gasoline' is held to include naphtha, benzine, or any light pro- 
 duct of petroleum,"^ all of which in their liquid form are highly in- 
 flammable. The New England Fire Insurance Exchange declares that 
 "vapor from one pint of gasoline will make two hundred cubic feet of 
 air explosive. It depends upon the proportion of air and vapor whether 
 it becomes a burning gas or destructive explosive." 
 
 O'Hara v. Nelson,^ is a case wherein Vice Chancellor Garrison ex- 
 tensively considered the whole subject of gasoline with reference to 
 garages. His opinion is so exhaustive on the subject, that it is quoted 
 in full.* Concerning the dangerous quaUties of gasoline when its 
 vapor is mixed with air, the Vice Chancellor remarks : 
 
 P. 170 " 'As an explosive,' it is said 'the danger is ten times 
 greater than that of gunpowder. It ignites as soon as the blaze 
 is applied to it and becomes explosive when the vapor froni 
 it mingles with the atmosphere, in which there happens to be a 
 burning lamp or other light.' " Staridard Oil Co. v. Tierney, 
 14 Iv. R. A. 61^7. 
 
 ^Quoted from "Permit" of the Boston Board of Fire Underwriters for storage 
 of gasoline, 
 i^es Atl. 836, 71 N. J. Eq. 161. 
 ^See post section 327. 
 
 249 
 
§ 325 GASOLINE 
 
 § 325. Degree of care required. — Elsewhere it is pointed out that 
 the degree of diligence required in any avocation or under any circum- 
 stances, is that of care according to the risks and dangers of the situ- 
 ation, which an ordinarily prudent man would exercise. The New 
 York Court of Appeals, speaking of the dangers of gasoline in an auto- 
 mobile, by Chief Judge Cullen, in Preston v. .^tna Ins. Co.,* say : 
 
 "The motive power used in the automobile, volatile and in- 
 flammable in the highest degree, was a constant source of danger 
 by fire. Fire might happen from many circumstances, some of 
 which it was possible to forsee, others which it was not possible 
 to forsee. It might be caused from some defect in the electric 
 apparatus or in the valves controlling the flow from the tank 
 into the motor setting fire to the whole store of gasoline. If 
 the vehicle was run at a high speed, the machinery might become 
 so heated as to cause fire and, as already suggested, the fire 
 might be caused in many other ways which could not be an- 
 ticipated." 
 
 § 326. Negligence in regard to gasoline.^ — Negligence being the 
 absence of care according to the circumstances, and the dangers inci- 
 dental to the use of gasoline being manifold in an unusual degree, 
 slight omissions of care, will weigh heavily against the oifender. 
 
 Oulighan v. Butler' was a case wherein the deceased had lost his life 
 by reason of an explosion in a powder mill. The remarks of Mr. 
 Justice Braley, concerning the care to be exercised by persons dealing 
 with powder, are apt in their application to gasoline, and particularly 
 are they pertinent in this instance, because as a supporting authority, 
 Judge Braley cites Banks v. Braman,' an automobile case : 
 
 "Owing to the inflammable nature of the substance with 
 which he was called upon to deal, and where unless the greatest 
 care was exercised ignition might take place, followed probably 
 by destruction of life and property, the jury well might find 
 that his conduct was not only lacking in ordinary care, but rose 
 to that degree of reckless indifference to consequences sufiicient 
 to constitute gross negligence. Galbraith v. West End Street 
 
 *i93 N. Y. 142, 14s, 8s N. E. 1006. 
 ^See § 942 et seq.. Negligence generally. 
 «i89 Mass. 287, 75 N. E. 726. 
 '188 Mass. 367, 74 N. E. 594. 
 
 250 
 
GASOLINE § 327 
 
 Railway, 165 Mass. 572, 581 ; Banks v. Braman, 188 Mass. 
 367" 
 
 Davis V. Bouton Motor Co.* was a case wherein the defendant's 
 chauifeur started to repair a break in his automobile gasoline tank, at 
 night, in a shed connected with buildings. To aid him in his work, he 
 used a lighted lamp, which he detached from the machine. Fire oc- 
 curred wtih serious consequences. The Appellate Court held that the 
 facts : 
 
 "Presented the question for the jury's consideration, whether 
 or not a reasonably prudent man, under those or similar circum- 
 stances, would have undertaken to repair a leak of so volatile 
 and inflammable a substance as gasoline, by the assistance of a 
 flame lamp, in a wooden shed, where the result of ignition of 
 the gasoline would evidently be disastrous to the building." 
 
 In a recent case an automobile was driven to a garage after dark 
 to fill its gasoline tank. The tank was at the rear and below it was a 
 kerosene lamp lighted. The son of the plaintiff, the owner of the car, 
 turned down the lamp low and removed the cap on the gasoline tank 
 and when the defendant's agent attempted to fill it the gasoline ran over 
 and caught fire from the lamp. The court holds that the defendant 
 may have been negligent but that even if he were the plaintiff was 
 guilty of contributory negligence in leaving the Hght as he did.' 
 
 Where one who had hired an automobile ran it into a ditch and 
 employed another to remove it, it is a question for the jury whether 
 due care is used by the defendant's employee in approaching the car 
 where there was a strong odor of gasoline with a lighted lantern 
 when the gasoline caught fire.^" 
 
 § 327. Gasoline as a nuisance." — The dangers from the use of 
 gasoline were fully considered by the New Jersey court in a case decided 
 during the early days of the automobile which seems to be in most part 
 law to-day.^^ 
 
 "no N. Y. S. 3S9, 126 N. Y. App. Div. 340. 
 
 9Grigsby & Co. v. Bratton, 128 Tenn. 597, 163 S. W. 804, 5 N. C. C. A. 131 8 
 N. C. C. A. 233. 
 "Brown v. Freeman, 84 N. J. h. 360, 86 Atl. 384, 8 N. C. C. A. 231. 
 i^See Garages, § 522, et seq. 
 i^O'Hara v. Nelson, 71 N. J. Eq. 161, 629, 63 Atl. 836. 
 
 251 
 
§ 327 GASOWNE 
 
 The use of electric lights in garages is now usually required as is a 
 prohibition against smoking and fire-proof construction but it is 
 doubtful whether the fears of the learned justice regarding gasoline in 
 the tanks of automobiles would have much weight to-day. 
 
 Upon the subject of Gasoline the following is a copy of the 
 opinion : 
 
 Opinion on hearing for preliminary injunction: 
 
 "This leaves for consideration that which I consider to be the 
 serious question in the case. Briefly stated, that is whether, in a 
 thickly built-up portion of a large city — particularly where 
 there are numerous frame buildings — parties may store and use 
 so dangerous a substance as gasoline in such large quantities 
 that an explosion thereof would cause serious injury to the ad- 
 jacent property and be a serious menace to the lives of those in 
 that vicinity. 
 
 "The expert testimony adduced is fortunately not conflicting, 
 and may, in fact, be said to be accordant. This testimony shows 
 what is commonly termed 'gasoline' is the fourth distillate of 
 crude petroleum. This fourth distillate consists of what is 
 termed 'naptha,' which, in turn is subdivided into 'naphtha A. 
 B. C.,' and gasoline is the common term applied to 'naptha C 
 It is so readily inflammable, that it can scarcely be said to have 
 any 'flash point.' Flame coming in contact with it will almost 
 inevitably and invariably ignite it without any appreciable 
 period of previous heat. 
 
 "If gasoline is brought in contact with flame, when the gaso- 
 line is unconfined within narrow rooms, it will ignite without 
 exploding. But if the gasoline is confined, and has been va- 
 porized by coming in contact with air, a gas or vapor is formed, 
 which when ignited explodes with all of the incidents connected 
 with the most disastrous character of explosion. One of the 
 witnesses gave an instance of the explosion of a barrel of gaso- 
 line on the basement floor of a five-story building, which com- 
 pletely wrecked the building, blowing off its roof, and killing 
 five persons. 
 
 "Gasoline vaporizes almost instantly upon coming in contact 
 with oxygen. So that in common use, as soon as gasoline is ex- 
 posed to the air some of it, at least, always goes off in the form 
 of vapor, which vapor being heavier than the air tends to sink. 
 The gravest source of danger with respect to the handUng of 
 gasoHne is that since this vapor sinks it is not readily perceptible 
 to one standing upright in a room, because it is along the lower 
 levels and close to the floor, and if it is not agitated by the 
 atmosphere so as to dissipate and blow away out of the room, 
 
 252 
 
GASOLINE § 327 
 
 is likely to be ignited by coming in contact with flame, the 
 ignition causing an explosion, which as before stated, is of suf- 
 ficient force to cause great damage. 
 
 "This vapor, unless dispelled by a current of air and dissi- 
 pated, is likely to travel a considerable distance through the 
 building, and will almost inevitably ignite and explode upon 
 coming in contact with any flame. 
 
 "It will be seen, therefore, that by burying in the earth the 
 receptical containing the gasoline but little progress has been 
 made toward safety in the use of gasoline in any building. So 
 soon as the gasoline is introduced inside of a building and is un- 
 covered to the air vaporization immediately takes place, and 
 this vapor is the ever-present source of danger - 
 
 "When gasoline has been placed in the tank of an automobile, 
 and the automobile is stored in a building, a slight leak from 
 the tank would immediately cause vapor to form, having the 
 characteristics just dealt with. It will thus be perceived, in 
 the case in hand, that the source of danger is that gasoline is 
 constantly being handled and stored in this building, and that 
 inevitably some of it will become vapor and this will be an ever- 
 present menace. 
 
 "It cannot, of course, be said that gasoline cannot be handled 
 so as not to cause an explosion, because it is shown to be a 
 scientific fact that if the vapor is blown out of the building by a 
 current of air, then there would be nothing present to explode ; 
 and it is also, of course, true that if no flame is ever brought in 
 contract with the vapor its presence would be harmless. But 
 this is too narrow a margin of safety upon which to predicate 
 a finding that the danger is not actually imminent. It seems 
 certain that the presence of some flame in this building at some 
 time must be presupposed, and it also seems certain that in the 
 habitual handling of this fluid, which immediately gives off 
 vapor when brought in contact with air, there will gather from 
 time to time in this building this dangerous vapor, which will 
 not always be promptly ejected by currents of air. 
 
 "It will be borne in mind that, even with the seven machines 
 now being stored in the building, an explosive which set fire to 
 the building would inevitably cause an explosion of those 
 seven tanks, provided they contained gasoline, which they al- 
 most inevitably would ; and it is to be supposed that this garage 
 will at some time in the future, if not in the very near future, 
 secure more automobiles on storage, probably up to its limit of 
 20 or 25. 
 
 "The real question, therefore, seems to be whether the storage 
 and use of so dangerous a substance in the midst of such sur- 
 
 253 
 
§ 327 GASOUNE 
 
 roundings is a nuisance. The initial inquiry, of course, is what 
 one may do upon his own land without restraint at the instance 
 of his neighbors. The house of lords in the case of Fletcher v. 
 Rylands, L. R. 3 H. L. 330, i Eng. Rul. Cas. 236, laid down the 
 rule that one who brought anything upon his own land which 
 would be harmful to his neighbors if it escaped, would be liable 
 in the event of escape even though no negligence were proven. 
 This doctrine, in that case, was appUed to the bursting of a 
 reservoir holding water. * * * 
 
 "With respect to the employment of such agencies as steam 
 and the like, the courts hold that they are absolutely necessary 
 to the progress of the community, and each member must suffer 
 the incidental damage and liability to danger which arises from 
 their non-negligent use. They are not nuisances if properly 
 maintained and operated. 
 
 "It will be readily perceived that there is a class of things to 
 which this reasoning does not apply — things inherently danger- 
 ous, liable to explosion without negligence of the owner, and so 
 subject thereto that the greatest care is but slight assurance of 
 safety. Bradford Glycerine Co. v. St. Mary's Woolen Manu- 
 facturing Co., 60 Ohio St. 560, 45 L. R. A. 658 (p. 661). 
 
 "Gunpowder and nitroglycerine are examples of this class, and 
 to a much greater extent are products of petroleum, the vapors 
 from which are insidious, treacherous and almost incontrollable 
 as respects danger of explosion. 
 
 "The earlier cases dealing with gunpowder and nitroglycerine 
 held that they were nuisances per se. See cases cited in note, 
 38 L. R. A. 308; Bradford Glycerine Company v. St. Mary's 
 Woolen Manufacturing Co., supra. 
 
 "The court of errors and appeals, in the case of McAndrews 
 v. Collered, 42 N. J. Law. (13 Vr.) 189 (1880) (p. 192), said: 
 'The keeping of gunpowder, nitroglycerine or other 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.' 
 
 "But in Simon v. Henry, 62 N. J. Law (33 Vr.) 486 (Supreme 
 Court, 1896), the Supreme Court refused to apply this doctrine 
 to a case where damage was done in the course of blasting in 
 the construction of a public sewer through a highway. This 
 latter case follows the decision of Booth v. R. W. & O. R. Co., 
 140 N. Y. 267. In that case the court held that the temporary 
 use of explosives in order to adapt one's own premises to a law- 
 ful use, where the mode adopted was the only practicable one, 
 and the work was prosecuted with due care and without negli- 
 gence, was not a nuisance. But it was very careful to point out 
 
 254 
 
GASOWNB § 327 
 
 that there was a manifest distinction between acts and uses 
 which are permanent and continuous, and temporary acts which 
 are resorted to in the course of adapting premises to some law- 
 ful use. And it cites those cases theretofore decided in the 
 courts of New York, holding that the keeping of gunpowder 
 in large (quantities near inhabited dwellings is a nuisance. 
 
 "The distinction between a permanent and a temporary use is 
 again alluded to in Garvey v. Long Island Railway Co., 159 N. 
 Y. 323, 32 Law. Ed. 920. 
 
 "I am of opinion that the same tendency heretofore alluded to 
 has caused the courts to modify the arbitrary rule which re- 
 garded these things as nuisances per se, and that the present rule 
 is that whether they are or are not nuisances depends upon the 
 locality, the quantity and the surrounding circumstances, and 
 the method and manner of keeping and use. Heeg v. Licht, 80 
 N. Y. 579; Rudder v. Koopman, 37 L.R. A.489 ; Kinney v. Koop- 
 man, 37 L. R. A. 497 ; Kleebauer v. Western Fuse & Explosive 
 Co., 60 L. R. A. 377 ; Collins v. Alabama G. S. R. Co., 61 Am. 
 & Eng. R. R. Cas. 229 (1894) ; High Inj. (3d Ed.) 593, Sec. 
 776 et seq., 1 Pom. Rem. (5 Pom. Eq. Jur., 3d Ed.) 869, Sec. 
 515 et seq.; Barnes v. Zettlemoyer, 62 S. W. Repr. iii; 
 Flynn v. Butler, 75 N. E. Repr. 73,0. In the case of Heeg v. 
 Licht, supra, it is said: 'In a city, with buildings immediately 
 contiguous and persons constantly passing, there can be no 
 question that such an erection (a powder magazine) would be 
 unlawful and unauthorized. * * * That the defendant's 
 establishment was outside of the territorial limits of a city does 
 not relieve the owner from responsibility or alter the case if the 
 dangerous erection was in close contiguity with dwelling houses 
 or buildings which might be injured or destroyed in case of an 
 explosion. 
 
 " The fact that the magazine was liable to such a contingency 
 which could not be guarded against or averted by the greatest 
 degree of care and vigilance, evidences its dangerous character, 
 and might in some localities render it a private nuisance. 
 * * * The keeping or manufacturing of gunpowder or fire- 
 works does not necessarily constitute a nuisance per se. That 
 depends upon the locality, the quantity and the surrounding cir- 
 cumstances, and not entirely upon the degree of care used.' 
 
 "If this be the rule with respect to gunpowder a fortiori, 
 should it be applied to gasoline? 'As an explosive,' it is said', 
 'the danger is ten times greater than that of gunpowder. It 
 ignites as soon as a blaze is applied to it and becomes explosive 
 when the vapor from it mingles with the atmosphere, in which 
 there happens to be a burning lamp or other light.' Standard 
 Oil Co. v. Tierney, 14 L. R. A. 677 (p. 682). 
 
 25s 
 
§ 327 GASOLINE 
 
 "It must, of course, be understood that I am not resting this 
 decision upon the dangers to surrounding property arising 
 from fire. I am aware of the decisions which held that increased 
 danger of fire is not a sufficient reason to restrain that which 
 causes the increase of danger. It was well said by Chief Justice 
 Thompson of the Pennsylvania Supreme Court, in Rhodes v. 
 Dunbar, 57 Pa. St. 274, 98 Am. Dec. 221, cited with- approval 
 in Rudder y. Koopman, supra, 'It is not on the ground alone 
 of their liability to fire primarily or even secondarily, that they 
 may be possibly dealt with as nuisances, but on account of their 
 liability to explosion by contact with the smallest spark of fire, 
 and the utter impossibility to .guard against the consequences, 
 or set bounds to the injury which, being instantaneous, extends 
 alike to property and persons within its reach. The destructive- 
 ness of these agents results from irresistible gases, once set in 
 motion, infinitely more than from the fires which might ensue 
 as a consequence. Persons and property in the neighborhood 
 of a burning building, let it burn ever so fiercely, in most cases, 
 have a chance of escaping injury. Not so when explosive forces 
 instantly prostrate everything near them, as in the instances 
 of powder, nitroglycerine and other chemicals of an explosive 
 or intensely inflammable nature.' 
 
 "If the case were at common law, it would be left to the jury 
 to determine whether this inherently dangerous thing was a 
 nuisance, in view of the locality, the circumstances, the amount 
 kept, and the care shown. 
 
 "It has been held that whether a given state of facts, if found 
 to exist by a jury, constitute a nuisance, is ordinarily one of law 
 for the court, or at least, a mixed question, of law and fact. 
 Mayor of Frostburg v. Kitchens, 68 Md. 100 or 6 Am. St. 
 Rep. 422. 
 
 "In equity, upon an application for an injunction to abate a 
 nuisance, I am of opinion that if the facts are clear it is the duty 
 of the court to determine the question, and there is no occasion 
 to send it to law. 
 
 "In the case in hand, the facts are practically undisputed. 
 Vehicles propelled by power within themselves now exist in great 
 numbers, and must undoubtedly be considered as among the 
 useful things at the disposal of mankind. Legislation respecting 
 their presence and conduct upon the highway is constantly beitjg 
 enacted. 
 
 "They are licensed by the state. The court would not be 
 justified, therefore, in applying obsolete rules to this situation, 
 but must adapt the princples of law to the existing conditions. 
 In a proper locality, amid proper surroundings, it is not unlaw- 
 for the dangerous fluid used in these vehicles to be stored and 
 
 256 
 
GASOIvINB § 327 
 
 used to fill the tanks of the vehicles, or for the vehicles with the 
 fluid within them to be stored. But there is no occasion to re- 
 lax the general principle so as to hold that this dangerous fluid 
 may, because it is usable by these vehicles, be stored or used in a 
 locality utterly unsuited and amidst surroundings not fitted, and 
 to an amount giving rise to great danger, or that the filled vehicles 
 may be so stored. 
 
 "The defendants have procured from the city a permit. This 
 paper was not put in evidence, but it was stated by counsel, and 
 is therefore an admission in the case to be dealt with, that it per- 
 mitted the storage, outside of the building, but upon the prem- 
 ises, of one barrel of gasoline. 
 
 "The facts are that in this frame building there are already 
 stored automobiles, and it is the intention to store others, which 
 contain tanks capable of holding 10 gallons each of gasoline; 
 that the gasoline from the underground tank is pumped into 
 the building and there exposed to the air, and is placed in the 
 tanks of the automobiles. 
 
 "It is apparent, therefore, that in the usual course of business 
 in this establishment there will always be within it tanks con- 
 taining gasoline to a very large amount. 
 
 "If the garage were filled to its capacity there would be 20 
 machines, containing 10 gallons each, or 200 gallons of gasoline. 
 The permit is only for one barrel, or 55 gallons, and that must 
 be kept outside of the building. 
 
 "The danger arising from this fluid is graded entirely by its 
 use within a building or confined place, and leaking tanks of 
 automobiles would be a very grave source of danger, since, as 
 has been before explained, the vapor would sink to the floor, 
 where it would be in close proximity to the lamps of the auto- 
 mobiles, which will undoubtedly be lighted when they come into 
 the building at night, or when they are being prepared to go 
 out. 
 
 "The drivers of automobiles and the users thereof, coming in 
 and out qf the building will undoubtedly at times be careless in 
 the use of matches. 
 
 "All this takes place in a frame building in a residential 
 neighborhood, in close proximity to other frame buildings, and 
 to dwelling-houses in which a number of people abide. The 
 building is almost directly upon the street, where those passing 
 may well, by careless throwing of matches and the like, cause 
 the apprehended explosion. 
 
 "I am clearly of opinion that it is the duty of the court to re- 
 strain the defendants with respect to the storage and use of this 
 dangerous material upon their own premises, to such an extent 
 as will have due regard for the interests of the complainant. 
 
 257 
 17 
 
§ 327 
 
 GASOLINB 
 
 "Courts of equity constantly, in cases of nuisances, prohibit 
 such parts of what is being done as are found to constitute the 
 nuisance. 
 
 "The court, upon a preliminary hearing, where the facts are 
 practically undisputed, and where a final hearing would be but 
 a repetition of the preliminary hearing, grants relief, even in 
 cases requiring a mandatory injunction. National Docks Rail- 
 7^1 ^°-,/- Pennsylvania k. Co., 54 N. J. Eq. (9 Dick) 10 
 (Chanceillor McGill, 1895). -- 1 v^ > 
 
 "I find that the defendant should be restrained from intro- 
 ducing gasoline into the tanks of the automobiles inside the 
 building and from storing automobiles with gasoline in their 
 tanks inside the building. By filling the tanks of the automobiles 
 outside of the building, and by emptying the tanks before the 
 automobiles are taken into the buildings, the danger is minim- 
 ized to the point where under the necessities of the case, the 
 complainants and others must endure the remaining risk. 
 
 "The injunction, therefore, will restrain the storage or use 
 of gasoline within the building." 
 
 Second hearing, p. 629, same volume. 
 
 Garrison, V. C. Opinion on hearing for permanent injunc- 
 tion: 
 
 "This is the final hearing of a case heretofore heard upon an 
 application for a preliminary injunction, the result of which is 
 reported in 71 N.' J. Eq. (1 Buch) 161 * * *. 
 
 "The additional testimony shows that within the last two 
 months the defendants have abandoned the use of electric 
 lights within this building and are now using illuminating gas. 
 It also shows that the defendants permit people inside of this 
 building to smoke, and that, whether they have knowledge of 
 the facts or not, people have drawn gasoline from the pump 
 which is now situated outside of the building and carried it in 
 open vessels into the building. 
 
 "1 remain of the same opinion as expressed in my previous 
 conclusions concerning the necessity of restraining the defend- 
 ants from storing or using gasoline within this frame building. 
 The only question that seems to me debatable is whether or not 
 there is sufficient danger from the gasoline allowed to remain 
 in the tanks of the automobiles within the building to enjoin 
 the defendants from permitting automobiles haying gasoline in 
 their tanks to be stored within the building. 
 
 "If there is any case in which such injunction should be 
 granted, the case at bar is that one. 
 
 "These defendants have shown an utter disregard of the com- 
 monest measures of safety. It is shown that they have, while 
 
 258 
 
GASOLINE § 327 
 
 this case has been pending in court, permitted people to smoke 
 within this building, wi^ the inevitable result that matches 
 are lighted therein, and, much more serious than that, have in- 
 vited disaster by abolishing electric lights and introducing the 
 use of gas. 
 
 "The testimony is absolutely in accord, from all those having 
 any knowledge of the subject matter, that the vapors from gaso- 
 line are migratory, and mixed with air and brought in contact 
 with flame, cause explosion. 
 
 "The question, therefore, is whether there is sufficient likeli- 
 hood of leakage from the tanks of automobiles stored in this 
 building to cause the court to enjoin such storage. 
 
 "The testimony of the inspector of combustibles of the New 
 York Fire Department, who for 12 years has occupied that 
 position, has had large experience, is that the danger from this 
 source is great. He specifies the danger arising from leaky 
 tanks as one of the things that is constantly present, and in- 
 stances an explosion caused by such leaky tanks in a garage in 
 New York City, in which over $200,000 worth of damage was 
 done, that being the last experience that they had had in New 
 York City with this form of explosion. 
 
 "The principle of law is, I think, settled, and all that is re- 
 quired is to apply it. The court will not entertain fanciful fears, 
 nor provide against all conceivable possibilities of danger. It 
 will, however, take into account human carelessness and the 
 likelihood of danger arising from the conduct of people under 
 ordinary or customary circumstances. Since as there is proven 
 to be absolute danger from the leaking tanks, and those whose 
 personal knowledge, founded upon personal experience, agree 
 concerning this danger, I do not feel justified in finding that it 
 is fanciful or imaginary, but I do find that it is real and sub- 
 stantial. 
 
 "It will be observed that the rules and regulations adopted by 
 the Jersey City authorities concerning the storage of combus- 
 tibles, although they were adopted at a time before automobiles 
 were used, specifically provide places in which combustibles may 
 be stored, requiring detached and properly ventilated ware- 
 houses, the outer walls of which must be of stone, brick or iron, 
 specially adapted for the purpose, and further provide that if 
 such place of storage is less than 50 feet from an adjacent 
 dwelling the same must be separated by a brick or stone wall at 
 least 10 feet in height and 12 inches thick, constructed in such 
 manner as the Board of Fire Commissioners shall prescribe; 
 and further they provide that no such combustible as gasoline 
 shall be contained in any metalic vessel or tanks excepting such 
 as are approved by the committee of the Bureau of Combustibles. 
 
 259 
 
§ 328 GASOUNE- 
 
 "It is only necessary to refer to the previous opinion for a 
 description of this building which is entirely of frame, and its 
 adjacency on three sides to other frame buildings, one of which 
 is the dwelling of the complainant. 
 
 "With respect to the vessels in which the gasoline is contained 
 in the automobiles, the case is barren of proof that they are such 
 as are approved by the city authorities, as aforesaid, and the 
 testimony of the inspector of combustibles of the City of New 
 York Fire Department before mentioned, shows that there are 
 many different kinds of tanks used in automobiles, some of 
 which are, in his view, sure to leak. If those whose duty it is to 
 regulate this matter, at a time when automobiles were not known, 
 thought it necessary to prohibit the storage of gasoline in any 
 vessel except one approved by them, it certainly seems unreason- 
 able to hold that this storage in any kind of a tank that may be 
 placed in any kind of an automobile, is safe."^^* 
 
 § 328. Gasoline not a nuisance per se.^' — Explosives are cast by 
 the common law, within that class of substances known as dangerous 
 agencies or dangerous instrumentalities, and that law declared them to 
 be nuisances per se. Recent judicial decisions, however, have shown an 
 inclination to modify the strict rule of the common law. It has been 
 held in a number of cases, that notwithstanding its dangers, gasoline 
 is not a nuisance per se, as used in and about motor vehicles and gar- 
 ages. A distinction seems to have been drawn between the permanent 
 and temporary use of gasoline accompanied by proper precautions. 
 In O'Hara v. Nelson, supra, the Vice Chancellor referring to this dis- 
 tinction, in speaking of gasoline stored in a garage, says : 
 
 "I am of opinion that the same tendency heretofore alluded 
 to has caused the courts to modify the arbitrary rule which 
 regarded these things as nuisances per se, and that the present 
 rule is that whether they are or are not nuisances depends upon 
 the locality, the quantity and the surrounding circumstances, 
 and the method and manner of keeping and use." 
 
 In Gavigan v. Refining Co.," it was held that gasoline in tanks, 
 located within the limits of a city, where adjoining lots were closely- 
 built upon, was not a nuisance per se, but the owners of the tanks were 
 
 i2aQuoted §§ 324. 328. 
 
 I'See §§ 313, et seq., Dangerous agency ; also § 533, Garages, 
 
 "186 Pa, St. 604, 40 Atl. 834. 
 
 260 
 
GASOLINE § 329 
 
 held to diligence in protecting the public from injury or discomfort 
 therefrom. And it was a question for the jury when the evidence was 
 conflicting.^^ 
 
 Some cynical automobilists will doubtless remark that the motor 
 gasoline of the grade furnished to-day is far less volatile than that in 
 use ten years ago. It is now not much removed from kerosene and 
 will not vaporize at all in very cold weather. It is also a peculiarity of 
 gasoline that it will not ignite from a mere glow but a flame is neces- 
 sary. A lighted cigar or cigarette may for example be dropped into 
 gasoline without result. It may be poured over a hot engine without 
 ignition as frequently happens in filling a motorcycle tank. Instances 
 have even been known where it has been ignited on an oil soaked 
 garage floor and has burned out without doing damage. 
 
 § 329. State statutes, local regulations, etc.' — In some of the 
 states there are statutes having reference to the handling and storage 
 of gasoline, also providing for licensing dealers therein.^" In many 
 communities there are local ordinances and regulations directed to the 
 same end.^^ In addition, the fire insurance companies have regulations 
 of their own. It may be said concerning these statutes, ordinances and 
 regulations, that in so far as they emanate from public authorities, 
 they are police regulations for the safety of life and property, and in 
 so far as they are insurance regulations, they are matters of contract 
 between the assurer and the insured.^* 
 
 Keeping automobiles on the premises with gasoline in the tank is 
 not "storing gasoline' 'within the meaning of such a statute.^* 
 
 § 330. Federal statutes. — Federal regulations concerning gasoline, 
 relate to its transportation on steam vessels. By section 4472 U. S. 
 Rev. Statutes, the carriage as freight on steam vessels of "naphtha, 
 benzine, benzole, coal-oil, crude or refined petroleum, or other like ex- 
 plosive burning fluids, or like dangerous articles," was prohibited. 
 
 i=See also Stein v. Lyon, 87 N. Y. Supp. 125, 91 N. Y. App. Div. 593, 1904; 
 Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606. 
 
 loMass. Rev. Laws, chap. 102, sees. 106-112, chap. 370, Acts of 1904 as amended 
 by chap. 280, Acts of 1905, and chap. 502, Acts of 1908. 
 
 i^Weston V. Dist. of Columbia, 23 D. C. App. 367; Dist. of Columbia v. Wes- 
 ton, 23 D. C. 363. 
 
 ispreston v. .s;tna Ins. Co., 193 N. Y. 142, 85 N. E. 1006. 
 
 ^'District of Columbia v. Weston, 23 D. C. App. 363. 
 
 261 
 
§ 330 
 
 GASOLINi; 
 
 By the amendment of 1901, Chap. 586, 31 U. S. Statutes at L. 799, the 
 following provision was added to Section 4472 : 
 
 "Nothing in the foregoing or following sections of this act 
 shall prohibit the transportation by steam vessels of gasoline or 
 any of the products of petroleum when carried by motor vehicles 
 (commonly known as automobiles) using the same as a source 
 of motive power; Provided, however. That all fire, if any, in 
 such vehicles or automobiles be extinguished before entering 
 the said vessel, and that the same be not relighted until after 
 said vehicle shall have left the same : Provided, further. That 
 any owner, master, agent or other person having charge of 
 passenger steam vessels shall have the right to refuse to trans- 
 port automobile vehicles, the tanks of which contain gasoline, 
 naphtha, or other dangerous burning fluids. ' 
 
 While the law was in this condition, the case of "The Texas,"^" was 
 decided holding that under the statute motor vehicles must not enter 
 or leave vessels under their own power. 
 
 At the ensuing session of Congress, the Act of February 18, 1905, 
 Chapter 586, 33 U. S. Stats, at 1,. 720, was adopted, amending the 
 amendment of 1901, and this is the Federal law as it stands to-day : 
 
 "Nothing in the foregoing or following sections of this act 
 shall prohibit the transportation by steam vessels of gasoline 
 or any of the products of pertoleum when carried by motor 
 vehicles (commonly known as automobiles) using the same as 
 a source of motor power: Provided, however. That all fire, if 
 any, in such vehicles or automobiles be extinguished immediately 
 after entering the said vessel, and that the same be not relighted 
 until immediately before said vehicle shall leave the vessel: 
 Provided further. That any owner, master, agent, or other per- 
 son having charge of passenger steam vessels shall have the 
 right to refuse to transport automobile vehicles the tanks of 
 which contain gasoline, naphtha or other dangerous burning 
 fluids." 
 
 This act may be found in the U. S. Comp. St. of 1913, s. 8242. 
 
 2<'i34 Fed. Repr. 909 (N. Y.). 
 
 262 
 
CHAPTER XVIII. 
 
 THE LAW OF THE ROADi 
 I. In GfiNERAi,. 
 
 § 331- Origin. 
 
 332. Nature and construction. 
 
 333. Criminal and civil liability for breach. 
 
 334. General rights and duties. 
 
 335. Equal rights of various classes of travelers. 
 
 336. What is part of road. 
 
 337. Private roads. 
 
 338. Streets distinguished from highways. 
 
 339. General rules as to the exercise of care. 
 
 340. Duty to keep lookout ahead. 
 
 341. Speed. 
 
 342. Driving along the road when not meeting or not passing. 
 
 343. Duty of drivers of privileged vehicles. 
 
 344. Party driving a light vehick is bound to give way to a heavy loaded one. 
 
 345. In city streets. 
 
 346. Street railviray tracks. 
 
 347. One way streets. 
 
 348. Slow vehicles to keep near curb. 
 
 349. A driver is not bound under all circumstances to look behind when cross- 
 
 ing from one side to the other. 
 
 350. Traveling in procession. 
 
 351. Motorcyclist bound by rules of road. 
 
 § 331. Origin. — ^The "law of the road" as it stands to-day, is found 
 (i) in statutory enactments; (2) in regulations and ordinances pre- 
 scribed by various boards and commissions; and (3) in judicial de- 
 cisions extending through a wide field of varying fact and circumstance. 
 But at the last analysis, the whole subject is found embodied in the com- 
 mon law, and that law is a reflection of custom. In this connection, the 
 description of our subject given by the Century Dictionary is not inapt. 
 Under the word "road" the following appears : 
 
 "Rule of the Road — The custom of a country with regard to 
 the passing of those who meet on the highway. In the United 
 
 iRight of pedestrians to assume law of road will be observed, see § 1275. 
 
 263 
 
§ 331 THB LAW 01? THE ROAD 
 
 States and generally in continental Europe, teams or riders ap- 
 proaching each other on the highway are expected to keep to the 
 right of the centre of the travelled part of the highway. In 
 Great Britain the reverse obtains."^ 
 
 The origin of the law of the road in local custom is traced in a 
 recent California case where the court remarked that so long continued 
 and universal is the custom in California for approaching vehicles or 
 pedestrians to pass to the right and to pass to the left where the ap- 
 proach is made from behind that it may be said to be a part of our 
 common law. It has been crystallized into statute law.^ 
 
 The purpose and object of the road law, is the safety and convenience 
 of the public. In Jacquith v. Richardson,* the court say, referring to 
 the statute covering the law of the road : 
 
 "We are now called upon to apply the law, which is a most 
 beneficial one, and conducive to the safety and convenience of 
 all the inhabitants of the Commonwealth ; * * * the intent 
 of the law being to extend protection to all travellers in passing 
 over ways, whether public or private." 
 
 The law under consideration being ages older than the "horseless 
 carriage," its principles are to be sought and found in cases decided 
 and statutes enacted, long before that vehicle was thought of as a 
 practicable possibility. So flexible is the underlying law of Anglo- 
 Saxon institutions, that no difficulty and seldom even temporary in- 
 convenience, is experienced in adjusting it to the progress of modern 
 invention. The bearing of the decisions and thg analogy of the situ- 
 ations described in the cases to be cited, will, it is hoped, be apparent as 
 pertinent to the modern development of the motor vehicle. 
 
 The "lyaw of the Road" is to be viewed in two aspects : ( i ) As de- 
 claring duties which every man travelling on the highway owes to 
 society for the violation of which the state exacts a penalty; (2) As 
 providing a set of rules for general guidance, whereby travel on the 
 highway may be facilitated and made safe and convenient. 
 
 ^See remarks of Mr. Justice Gaynor, in Wright v. Fleischman, 41 Misc. S34i 
 8s N. Y. Supp. 62, and those of Judge Smith in McDonald v. Yoder, 80 Kans. 
 25, Id Pac. 468. 
 
 sRayraond v. Hill, 168 Cal. 473, 143 Pac. 743. 
 
 *49 Mass. 216, 217. 
 
 264 
 
IN GENERAL § 332 
 
 § 332. Nature and construction, — Laws prescribing rules of driv- 
 ing, of personal behavior in public places and the like, fall within that 
 division of criminal conduct known as mala prohibita, for, while not 
 wrong in themselves when apart from all other considerations, yet be- 
 cause they may, and probably will, work injury to society, the law takes 
 notice of and inhibits them. Such laws usually declare the public duty 
 affirmatively or negatively, which every one owes, and prescribe penal- 
 ties for their transgression to be inflicted in proceedings following an in- 
 dictment or criminal information. Where private injury to an individual 
 has resulted in consequence of a violation, the sufferer usually has a 
 right to civil action to recover money satisfaction in his own behalf, 
 and such proceedings are commonly called "actions in tort" for dam- 
 ages, while the other are public prosecutions for the commission of a 
 crime.^ 
 
 While the rule of strict construction applies generally to penal 
 statutes, courts have so far modified it as to look to the legislative 
 intent when plainly manifested, refusing by radical refinement or un- 
 reasonable construction to discharge offenders whose acts are clearly 
 within its scope. This doctrine was laid down in a criminal prosecution 
 for a violation of the road law wherein the defendant operating an 
 automobile, failed to stop on signal given in behalf of the driver of a 
 horse and buggy, by a passenger in the last mentioned vehicle. The 
 chief justice in the opinion refers to numerous authorities, and after 
 reciting the facts, says : 
 
 "It is obvious that the legislative purpose in enacting the law 
 under consideration was to provide protection to travellers on 
 the highway by vehicle, from the dangers incident to the animal 
 attached to such vehicle becoming frightened at the approach 
 of an automobile."" 
 
 There seems to be no reason in principle, why such a liberal con- 
 struction of scope, should not be given to all other of the provisions of 
 statutory road law, designed for public and individual safety in any par- 
 
 "Addison on Torts, 8 ed., p. i. 
 
 «State V. Goodwin, 169 Ind. 265, 82 N. E. 460 (Ind.), 1907; see also Com. v. 
 Kingsbury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513. 
 
 265 
 
§ 333 THB LAW OP THS ROAD 
 
 ticular. The Canadian Act/ exactly expresses in statute form, the idea 
 of Chief Justice Hadley in the case last quoted : 
 
 "Every act and every provision or enactment thereof shall 
 be deemed remedial whether its immediate purport be to direct 
 the doing of anything which the legislature deems to be for the 
 public good or to prevent or punish the doing of anything which 
 it deems to be contrary to the public good ; and shall accordingly 
 receive such fair, large and liberal construction and intrepretation 
 as will best insure the attainment of the object of the act, and of 
 the provision or enactment, according to the true intent, mean- 
 ing and spirit thereof." 
 
 This section is referred to by the Canadian chancellor, sitting in the 
 Divisional Court, in an automobile accident case, Mattel v. Gillies,' 
 as applying the rule to be followed in the construction of its motor 
 vehicle law, which in cardinal features does not differ materially from 
 that of Massachusetts and other states.^ 
 
 § 333- Criminal and civil liability for breach. — From these ob- 
 servations it follows that under the penal character of the road law, 
 one may be indicted for a criminal offense and punished for trying to 
 pass on the wrong side of the road, but in a civil action between the 
 parties for damages for injuries sustained, it is a case where the law 
 of negligence will apply. Parker v. Adams,^" was a civil action in tort 
 for money damages between individuals, growing out of nonobserv- 
 ance of the road law. The court, in passing on this point, say that 
 such parties : 
 
 "Are liable to be prosecuted criminally therefor, but a respon- 
 sibility to a private person does not necessarily result there- 
 from."" 
 
 Commonwealth v. Allen," was a case wherein the defendant was in- 
 dicted for a violation of the statute in not properly turning out in the 
 
 T7 Edw. VII, chap. 2, sec. 7, sub-div. 41 (Ontario). 
 
 816 Ont. Law R«ps. (Can.), 558, 561. 
 
 »See also Weirich v. State, 140 Wis. 98, 126 N. W. 652, 1909, and Walker y. 
 Commonwealth, 40 Pa. Super. 638, 1909, where the general automobile law is 
 described as "throughout a regulating statute." 
 
 1053 Mass. 419. 
 
 "See also State v. Goetz, 83 Conn. 437, 76 Atl. 1000. 
 
 1252 Mass. 404- 
 
 266 
 
IN GENERAi, § 334 
 
 highway. It was a criminal prosecution presenting none of the aspects 
 of a civil action. The Supreme Court in the opinion, remarked : 
 
 "The statute has it seems to us, in direct terms r.equired the 
 duty of persons meeting upon the road, to turn to the right of 
 the travelled part of the road, and imposed a penalty for a 
 neglect of this duty. As a public offense, it can make no differ- 
 ence whether sufficient room was left for the other party to 
 pass. * * * It is the negligence or wrongful act of the de- 
 fendant that constitutes^ the public offense irrespective of the 
 want of ordinary care of the other party."^^ 
 
 § 334. General rights and duties. — As a general proposition it 
 may be said that the right of the public in a common highway is para- 
 mount and controlling. This right extends to the entire territory in- 
 cluded in the limits of such highway." 
 
 The law looks with disfavor upon all abridgment of the right and 
 only countenances it in such cases as the public welfare clearly requires. 
 By the common law and well settled authority, this right is for passage 
 and repassage only.^' 
 
 The passing and repassing in the highway is productive of so many 
 diverse situations, that no set of rules could be formulated which would 
 be exactly adapted to every occasion. In Purtell v. Jordan,i° Mr. Jus- 
 tice Knowlton says: 
 
 "The circumstances of different cases so vary, and the natural 
 and usual met^iods of crossing our crowded streets are so af- 
 fected by facts and influences which are difficult of statement, 
 and which are seldom found twice in the same combination, 
 that there are few rules of law which can be arbitrarily laid 
 down in reference to the effect of particular acts." 
 
 Hence the law does not go beyond the point of prescribing general 
 regulations concerning conduct, leaving each case to be tested by the 
 
 "See also Spofford v. Harlow, 85 Mass. 176; Needy v. Little! ohn, 137 Iowa 
 704, IIS N. W. 483. 
 
 ^*See § 336; Com. v. King, 54 Mass. 118; Morton v. Moor.e, 81 Mass. 573; 
 Cecchi V. Lindsay, i Boyce 185, 75 Atl. 376 (Del.). 
 
 i^Stackpole v. Healy, 16 Mass. 33. 
 
 "156 Mass. S77, 31 N. E. 652. 
 
 267 
 
§ 335 THB LAW 01? THE ROAD 
 
 Standard of those regulations, and by the merit or lack of merit, of its 
 own particular facts, and these facts usually are for the jury." ' 
 
 § 335- Equal rights of various classes of travellers.— The obli- 
 gations of travellers on a highway on foot and in vehicles are reciprocal, 
 and though each has a right to pass and repass, neither may so negli- 
 gently exercise such right as to injure the other, the duty being the 
 practice of due care, and this duty is irrespective of any statute pro- 
 vision or regulation.^^a 
 
 An automobile has an equal right of passage on a public highway 
 with a buggy or other conveyance. The driver of each must observe 
 towards the other proper caution." 
 
 So an operator of an automobile and a traveler on a bicycle have 
 equal right to lawfully use the public streets and each has a right to 
 assume the other will exercise ordinary caution.^' 
 
 i 336. What is part of road,— The law of the road extends to all 
 places appropriated either de jure or de facto to the purpose of pass- 
 ing with vehicles, whether they are so appropriated by public authority 
 or by the general license of the owners thereof, express or implied, and 
 such owners them'selves while using their land as a road, must conform 
 to this law.^o 
 
 The language of the Massachusetts Revised Laws,^^ "When persons 
 meet on a bridge or way," means the "travelled" or "wrought" part of 
 the road.^^ 
 
 i^Com. V. Temple, 80 Mass. 69, 75; Reitz v. Hodgkins (Ind. 1916), ii2 N. E. 
 386. 
 
 i^aCCBrien v. Blue H. St. Ry., 186 Mass. 447, 7i N. E. ; 9S Thies v. Thomas, 77 
 N. Y. Supp. 276; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224; Wilkins v. 
 N. Y. Transp. Co., loi N. Y. Supp. 650 ; Simeon v. Lindsay, 65 Atl. 778, 6 Pen. 
 (Del.) 224; Reed v. Snyder, 38 Pa. Super. 421; Delfs v. Dunshee, 143 Iowa 381, 
 122 N. W. 236; Spangler v. Markley, 39 Pa. Super. 351; Cecchi v. Lindsay, i 
 Boyce (Del.) 185, 75 Atl. Repr. 376; Haynes Automobile Co. v. Sinnett, 46 Ind. 
 App. no, 91 N. E. Repr. 171 (Ind.). 
 
 isShore v. Ferguson, 142 Ga. 657, 83 S. E. 518. 
 
 i^Travers v. Hartman, (Del. Super. Ct.), 92 Atl. 855. 
 
 zoCom. V. Gammons, 40 Mass. 201 ; Jacquith v. Richardson, 49 Mass. 217. 
 
 2iChap. S4. sec. i. 
 
 22Carey v. Hubbardstown, 172 Mass. 108, 51 N. E. 521; Needy v. Littlejohn, 
 137 Iowa 704, IIS N. W. 483. (See Definitions, Appendix B.). 
 
 268 
 
IN GENERAL § 337 
 
 In Clark v. Commonwealth,^' the court say : 
 
 "By 'travelled part' of the road, is intended that part which 
 is usually wrought for travelling. A traveller is not obliged, 
 because a track happens to have been made on one side of the 
 part so wrought, to turn to the right of the center of this track. 
 If he turns to the right of the centre of the wrought part, so 
 that there is room on the wrought part for the other traveller to 
 pass, it is sufficient, and the penalty is not incurred."^* 
 
 When the wrought or ordinarily travelled part is covered with snow 
 and obscured from the eye, and the snow travelled or snow broken or 
 beaten path is on one side of it, then the actually travelled or beaten 
 path is to be temporarily followed. 
 
 In Jacquith v. Richardson,^^ the court say : 
 
 "From the season of the year and the quantity of snow on the 
 ground, the wrought path was obscured from the eye, and the 
 travelled or beaten path was on the right of the centre of the 
 wrought path. And here we cannot doubt but that the path then 
 beaten and travelled by those passing and repassing on the 
 way, with their sleds and sleighs, was one of those roads contem- 
 plated by the framers of the statute and within its spirit and 
 purview, and that the wrought part is not, for the time being, 
 the travelled path to which the law of the road is restricted; 
 but that the law is as well applicable to the path, as actually 
 travelled upon the snow, as it is to the wrought part in different 
 seasons of the year." 
 
 § 337- Private roads. — ^The law of the road is in effect generally 
 on private as well as public roads. For example in Massachusetts 
 the Revised Laws (chap. 54), provide for meeting and passing "on a 
 bridge or way." Subsequent legislation enlarged its application, to 
 "any bridge or way public or private."^" In the automobile law," 
 private roads are included with all other ways "laid out under the 
 authority of statute." Reference to Appendix B, of definitions, under 
 the heads of "Private Way," "Road," "Street," and "Way," will dis- 
 close a special statutory definition sometimes applied to private ways. 
 
 2^21 Mass. 125. 
 
 2*See also Earing v. Lansingh (N. Y.), 7 Wend. 185, 187. 
 
 2B49 Mass. 216. 
 
 2«Act of 1908, chap. S12. 
 
 269 
 
§ 337 f Hfi LAW OF THE ROAD 
 
 Where question has been raised as to the scope of the 'language used 
 in the Revised Laws, the courts have given it the widest interpretation 
 concerning paths for travel. 
 
 Com. V. Gammons,^' was a case which turned upon the definition of 
 the meaning of the word "Road," and whether the statute entitled the 
 "Law of the Road," applied to places where private persons by license 
 or express permission, allowed vehicles to pass over their property, 
 commonly known as private roads, as distinguished from those which 
 have been accepted or constructed by public authority. It was con- 
 tended that such a construction would trench upon the rights of private 
 property, and that the legislature has no power to prescribe rules by 
 which individuals shall be governed in the use of such roads. 
 
 On this subject the court say: 
 
 "But we think this rule does not impair the rights of private 
 property; it confers no right of way in the lands of private 
 owners. They may exclude all persons if they think fit. But 
 when those owners by grant or permission or general license, 
 express or implied, do allow their land to be used for a road, 
 the legislature, having a superintending power over the persons 
 and conduct of all the citizens, may prescribe a rule by which 
 they shall use this privilege, whether permanent or temporary, 
 for their mutual safety and convenience." 
 
 In another place in the same opinion, the court say : 
 
 "All of the reasons which render a rule of the road useful, 
 salutary and mutually beneficial in public ways, apply with equal 
 force to such an avenue." 
 
 The opinion refers also to "Courts" and "Places" in cities, also to 
 "Wharves," and continues: 
 
 "The owners may close them if they think fit, but when in fact, 
 they are open and all persons are permitted by a general license 
 to use them, they are roads, and the reason applicable to other 
 roads applies to them." 
 
 27 Act of 1909. chap. S34, sec. i. 
 
 2840 Mass. 204. 
 
 270 
 
IN GENERAL § 338 
 
 The question in doubtful cases whether a "private way" is a road 
 appropriated and used for the purpose of traveUing with trucks and 
 wagons, by those having occasion to use it, is for the jury.°° 
 
 § 338. Streets distinguished from highways. — The motor vehicle 
 law regulating speed at "intersecting highways," applies to the crossing 
 of intersecting streets, where a street is by the terms of the act in- 
 cluded as one of the "highways" of the State.'" 
 
 § 339- General rules as to the exercise of care. — Travellers must 
 always exercise at least ordinary care and skill, being guilty of no want 
 of proper diligence, nor of rashness, inattention or indifference. This 
 is too well settled to require discussion.'^ 
 
 In motor vehicle cases the burden usually rests heavily on the motor- 
 ist by reason of the character of his vehicle. Nevertheless, the prose- 
 cution, or plaintiff, must always make out a prima facie case of lapse 
 from the exercise of proper diligence on the part of the defendant.'^ 
 
 The meaning of the word "care" and what constitutes "due care" 
 are relative. They may mean one thing on a country road and another 
 thing in a crowded street of a city. The circumstances are facts for the 
 jury to consider.'' 
 
 In Simeone v. Lindsay,'* it is said : 
 
 "A public highway * * * jg opgji j^ all its length and 
 breadth to the reasonable, common, and equal use of the people, 
 
 ^'Com. V. Gammons, 40 Mass. 205. See for example Wheeler v. Hall, 157 Mo. 
 App. 38, 137 S. W. 63, reported, post § 347- 
 
 3»Ware v. Lamar, 16 Ga. App. 560, 85 S. E. 824. 
 
 siMayo V. Boston & M. R., 104 Mass. 140 ; Schulte v. New Orleans St. Ry., 44 
 La. Ann. 509, 10 So. R. 811; Huntress v. Railroads, 66 Atl. Repr. 875 (Md.) ; 
 Reed v. Snyder, 38 Pa. Super. 421; Spangler v. Markley, 39 Pa. Super. 351; 
 Webb V. Moore, 125 S. W. 152, 136 S. W. 708 (Ky.). 
 
 ^^See § 1652, et seq.; Smith v. Smith, 19 Mass. 621 ; Thompson v. Bridgewater, 
 24 Mass. 188; Lane v. Crombie, 29 Mass. 177; Adams v. Carlisle, 38 Mass. 146; 
 DriscoU V. West End Ry., 159 Mass. 146, 34 N. E. 171 ; Murphy v. Worcester, 159 
 Mass. 546, 34 N. E. 1080; Halloran v. Worcester Con. R., 192 Mass. 104, 106, 78 N. 
 E. 381; Simeone v. Lindsay, 6 Pen. (Del.), 224, 65 Atl. 778; Sharpnack v. Des 
 Moines City Ry., 115 N. W. R. 475 (la.), 1908; Cecchi v. Lindsay, i Boyce 185 
 (Del), 75 Atl. 376. 
 
 ssScannell v. Boston El. Ry., 176 Mass. 172, 57 N. E. 341 ; Lampe v. Jacobsen, 
 46 Wash. 536, 90 Pac. Repr. 654 (Wash.), 1907; Webb v. Moore, 136 Ky. 708, 125 
 S. W. 152. 
 
 3*6 Pen. (Del.) 224, 65 Atl. 778. See also Fletcher v. Dixon, 107 Md. 420, 68 
 Atl. Repr. 875 (Md.). 
 
 271 
 
340 THU I<AW 03? THE ROAD 
 
 on foot or in vehicles. The owner of an automobile has the same 
 right as the owner of other vehicles to use the highway, and like 
 them he must exercise reasonable care and caution for the 
 safety of others. A traveller on foot has the same right to the 
 use of the public highway as an automobile or any other ve- 
 hicle. In using such highway all persons are bound to the exer- 
 cise of reasonable care to prevent accidents. Such care must 
 be in proportion to the danger in each case. * * * There is 
 a like duty of exercising reasonable care on the part of tiie per- 
 son travelling on foot. The person having the management of 
 the automobile and the traveller on foot are both required to 
 use such reasonable care, circumspection, prudence, and dis- 
 cretion as the circumstances require; an increase of care being 
 required where there is an increase of danger; and both are 
 bound to the reasonable use of all their senses for the prevention 
 of accident, and the exercise of all such reasonable caution as 
 ordinarily careful and prudent persons would exercise under 
 the circumstances. The more dangerous the character of the 
 vehicle or machine, and the greater its liability to do injury to 
 others the greater the degree of care and caution required in 
 its use and operation. And a person travelling by foot on a 
 public road is required to use reasonable care to avoid collision 
 with a vehicle, and if he saw the vehicle before it struck him, or 
 by the reasonable use of his senses could have seen it in time to 
 avoid the injury, it is his duty to do so." 
 
 It is the duty of the motorist to keep a vigilant watch ahead for other 
 vehicles, and on the first appearance of danger to take proper steps to 
 avert it.'' 
 
 If the operator fails to see that which is in plain view, "in legal con- 
 templation he will be held to have seen" it.^» 
 
 § 340. Duty to keep lookout ahead."— It is the duty of the driver 
 of an automobile to keep a lookout in the direction in which he is going 
 and turning,'* and the fact that the defendant was immediately before 
 
 ssMcFern v. Gardner, 121 Mo. App. i, 97 S. W. 972; Hough v. St. Louis Car 
 Co., 146 Mo. App. 58, 123 S. W. 83; Bradley v. Jaeckel, 6s Misc. 509. "9 N. Y. 
 Supp. 1071; Kauffman v. Nelson, 225 Pa. St. 174, 73 Atl. 1105; Baldie v. Ta- 
 coma St. Ry., 32 Wash. 75, 100 Pac. 162 ; Rogers v. Phillips, 206 Mass. 308, 92 
 
 Atl '^27- 
 
 38McDonald v. Yoder, 80 Kas. 25, loi Pac. 468, 1909; Spangler v. Markley, 39 
 Pa. Super. Ct. Reps. 3S1, 1909. As to negligent driving see further § 942. 
 
 sTSee further, § 387. 
 
 ssEisenman v. GrifBth, 181 Mo. App. 183, \(,1 S. W. 1142. 
 
 272 
 
IN GBNKRAI, § 341 
 
 the accident looking to one side, at property lie was passing is evidence 
 of negligence.^^ 
 
 § 341. Speed must be always reasonable and proper, having regard 
 to the conditions prevailing at the time. No blowing of a horn, or of 
 a whistle, nor the ringing of a bell or gong, is suiEcient, if unaccam- 
 panied by an attempt to slow the speed, when the circumstances are 
 such as to demand a lower rate.*" 
 
 § 342. Driving along the road when not noeeting or not passing. 
 — The following taken from the cases make it apparent that common 
 law rules on this point prevail : 
 
 In Love joy v. Dolan,*^ the court say: 
 
 "A person travelling upon a highway or street may well use 
 any portion of the travelled part, except in the case of meeting 
 another traveller, when the statute requires that he should turn 
 to the right. He is not obliged to keep on the right rather than 
 on the left side, unless he is about to meet and pass another 
 vehicle. * * * The statute itself, by requiring persons to 
 turn to the right in this contingency, recognizes the right to 
 travel upon any part of the road at other times. Until a person 
 sees a traveller approaching, he is, therefore in the exercise of a 
 legal right in travelling on the left side of the road. It is only 
 when the prescribed contingency arises that he is obliged 'seas- 
 onably to drive to the right.' " 
 
 In Apperson v. Lazro*^ the defendant while operating his auto- 
 mobile approached an old man walking in the road, whom he saw in 
 sufficient time to avoid, but continued to run toward him, until he was 
 so close that inswerving to avoid him he struck the man. Question 
 was raised as to whether the motorist was on the "right" or "wrong" 
 side of the road. The court held that it was immaterial on which side 
 of the road defendant was driving his automobile. Mr. Justice Wat- 
 son, who wrote the opinion, remarked that defendant : 
 
 "Had a perfect right to use any part of it," but "running an 
 automobile at a high rate of speed, directly towairds a person 
 
 80Deputy v. Kimmel, 73 W. Va. 595, 80 S. E. 919, Si L. R. A. N. S. 989, 8 
 N. C. C. A. 369. 
 
 ^'See § 423, "Speed limitations" ; Thies v. Thomas, 77 N. Y. Suppl. 276, 1902 ; 
 Mass. Act of 1909, chap. S34, sec. 16; Rev. Laws, chap. 521, sec. 8; Webb v. 
 Moore, 136 Ky. 708, 125 S. W. Repr. 152. 
 
 *i64 Mass. 496. 
 
 «44 Ind. A. 186, 87 N. E. 97. 
 
 273 
 
 18 .■'-■; 
 
§ 343 THE i<Aw OS rnt road 
 
 and so close to him that he is compelled or excited to flee from 
 his path to keep from being run over is an unreasonable abridge- 
 ment of that person's right to the use of the highway." 
 
 In Clark v. Van Vleck« Mr. Justice Deemer says : 
 
 "The jury were not told unequivocally that if defendant was 
 on the wrong side of the street when he struck the boy, he would 
 be liable; but only that if he were negligently there he would 
 be, and that he had the right to be there for certain purposes."" 
 
 The word "wrong" as applied to one side or the other of a road or 
 street is more of colloquial import than possessing legal significance. 
 We have seen that the law of the road permits the wayfarer to travel 
 upon any part of it, but custom and usage have prescribed a practice 
 which in America, involves keeping upon the individual's right hand 
 side of the way.*° 
 
 This finds utterance in the expression "Rule of the road, keep to the 
 right." It is obvious how from one's not being on his right side of 
 the road, he is on the "wrong" side of it. The term is convenient and 
 its meaning well understood. 
 
 § 343. Duty of drivers of privileged vehicles. — ^While various laws 
 give certain classes of vehicles such as those carrying the mail, fire 
 apparatus, etc., "right of way" over fellow-travellers, it does not ab- 
 solve the drivers of such vehicles from the exercise of due care on their 
 part, for the safety of others lawfully using the highway.*" 
 
 Such statutes merely impose the duty on individuals to give way in 
 the exercise of their lawful rights in the interest of the general wel- 
 fare, but it must be affirmatively shown that notice of the privileged 
 character of the vehicle asserting it was brought home to the traveller.*' 
 
 Where the general motor vehicle statute excepts fire apparatus this 
 applies to an automobile of the fire chief although on his way to a 
 
 <3i3S Iowa 194, "7 N. W. 648. 
 
 "See also Wrinn v. Jones, in Mass. 360, 362; Needy v. Little) ohn, 137 Iowa 
 704, IIS N. W. 483; Irwin v. Judge, 81 Conn. 492, 71 Atl. Repr. S72. 
 
 *^See § 352. 
 
 *'See § 335. 
 
 «S'ee Appendix A, for vehicles, etc., having "right of way" by statute. In 
 other cases the expression is to be understood in its colloquial or popular sense; 
 Tepper v. Boston El. Ry., 192 Mass. 46, 78 N. E. 384. 
 
 274 
 
IN GENERAi, § 344 
 
 fire outside the city limits. The fact that he was not obliged to attend 
 the fire does not render him liable to speed restrictions.** 
 
 It is negligence per se for a police oificer on a motorcycle to pursue 
 an automobile at high speed through city streets. Peace officers are 
 not excepted from the operation of the laws limiting the speed of ve- 
 hicles upon public highways unless expressly excepted by statute. But 
 his negligence to bar recovery for a defect in the street must be the 
 proximate cause of the accident and whether it is so is a question for 
 the jury.*' 
 
 Although a police patrol is exempt from the speed limits of automo- 
 biles generally the city may be liable if it is operated at a high and 
 dangerous rate of speed under the circumstances and without giving 
 timely warning."" 
 
 A fireman engaged in demonstrating a new fire truck is guilty of 
 negligence in not looking before crossing a street railway track. The 
 fact that fire apparatus has the right of way by ordinance is imma- 
 teriaL=°a 
 
 § 344. Party driving a light vehicle is bound to give way to a 
 heavy loaded one. — In Wrinn v. Jones" it is said : 
 
 "The party driving a light team is bound to give way or get 
 out of the way of Sie party who is driving a heavily loaded 
 team."==' 
 
 In Com. V. Temple"' it is said : 
 
 "So in the actual use of the highway, each may use it to his 
 own best advantage, but with a just regard to the like right of 
 others. Persons in light carriages for the conveyance of per- 
 sons only, have occasion and of course a right when not ex- 
 pressly limited by law, to travel at a high rate of speed, so that 
 they do not endanger others." * * * "So in regard to the 
 
 **Hubert v. Granzon, (Minn.), 155 N. W. 204. 
 
 "Keevil V. Ponsford, (Tex. Civ. App.), 173 S. W. 518, 9 N. C. C. A. 665. 
 
 ""Brown v. Wilmington, 4 Boyce (Del. 492), 90 Atl. 44. 
 
 ""ai^ynch v. Boston Elevated Ry. Co., (Mass. 1916), 112 N. E. 488. 
 
 "^iii Mass. 360, 362. 
 
 "^See also Com. v. Temple, 80 Mass. 69, 75 ; Standard Oil Co. v. Hartman, 102 
 Md. 563, 62 Atl. Repr. 805; Lorenz v. Tisdale, 127 App. Div. 433, in N. Y. Supp. 
 173- 
 
 "'So Mass. 69, 75. 
 
 275 
 
§ 345 f HU LAW OP thB road 
 
 drivers of fast and slow carriages, each must respect the rights 
 of the other. Take a single illustration : if a heavily loaded ox- 
 team be passing along a street wide enough only for one car- 
 riage, say fourteen feet, and other fast carriages follow, these last 
 must for the time being, be restrained in their speed because 
 this necessarily results from these circumstances — the narrow- 
 ness of the way and the ordinary slowness of the ox-team ahead. 
 If parties thus traveling in the same direction should come to 
 a portion of the way wide enough for carriages to pass each 
 other, say twenty feet wide, it is obvious that if the driver of 
 the heavy team would turn to either side it would give the fast 
 team room to pass, whereas, if he should keep the middle, the 
 five or six feet on either side would not permit any carriage to 
 pass. Now supposing no impediment should intervene and no 
 circumstances should render it dangerous for the driver of the 
 slow team to bear off, in our opinion it would be his duty to 
 do so although it might suit his convenience better to keep in 
 the middle ; and his refusal thus to bear off would be aii abuse 
 of his own equal and common right for which, if injurious to 
 another, an action would lie; and if it was a public highway the 
 party would subject himself to a public prosecution." 
 
 § 345. In city streets.— The duty of a motorist in a city street is 
 well stated in Lampe v. Jacobsen." In a case in Minnesota^' the Su- 
 preme Court by Justice Jaggard, regard the matter from another point 
 of view as applied to "streams of traffic" in city streets, distinguishing 
 regulations for control in such localities from the general law of the 
 road governing upon country highways. Judge Jaggard remarks : 
 
 "It is the universal custom for cities to prescribe the course 
 which streams of traffic shall take. * * * The necessity for 
 such particular provisions has been emphasized, as the use of 
 automobiles in large numbers has become more general. Mo- 
 tomeers of street cars, chauffeurs, drivers of ordmary vehicles 
 and of emergency vehicles, like ambulances, fire-engines, and the 
 like and pedestrians, depend not only for the certainty of their 
 movements, but for their safety, upon the enforcement of such 
 ordinances."^' 
 
 6*46 Wash. 536, 90 Pac. Repr. 6S4- 
 seState v. Larrabee, 104 Minn. 37, ii5 N. W. S48. 
 BBSee traffic regulations collated in Appendix C; also § 267. 
 
 276 
 
IN GENERAI. § 346 
 
 In Massachusetts the Supreme Court has held that local traffic regu- 
 lations are valid as long as they are not inconsistent with state law.°^ 
 
 § 346. Street Railway Tracks. — Where the ordinance does not 
 require the drivers of vehicles to keep oflf of the street railway tracks 
 but only requires them to keep, on the side of the street to the right 
 the ordinance does not require them to keep off of the street railway 
 tracks.^' 
 
 Where defendant enters upon a highway where there are electric 
 car tracks and he cannot cross these to use the right-hand roadway he 
 may use the left-hand roadway and no negligence could be predicated 
 merely upon such use it appearing that such roadway was of ample 
 width."' 
 
 § 347. One way Streets. — Where a road in a country club is di- 
 vided and it is a rule and custom that vehicles shall use only the right 
 hand roadway it may be negligence to use the left-hand roadway.*" 
 
 § 348. Slow Vehicles to keep near Curb. — Where the motor ve- 
 hicle law requires slow moving vehicles to keep close to the right curb 
 it is no defense that there were not other vehicles on the road or that 
 it was more convenient to drive where he did. If the evidence showed 
 it was not possible to drive where the law commanded that would raise 
 a different question as to which the court expresses no opinion.*^ 
 
 The ordinance requiring slow moving vehicles to keep close to the 
 curb and the motor vehicle law requiring automobiles to turn to the 
 right in passing vehicles and persons going in the same direction do 
 not apply to the relations between street cars and horse-drawn ve- 
 hicles."^ 
 
 Under an ordinance requiring the driver of an automobile to keep 
 as near the curb as possible if he does not do this he has an inferior 
 right to another traveller obeying the ordinance.®^ 
 
 "'Com. V. Newhall, 205 Mass. 344, 91 N. E. 206. 
 
 "Watts V. Montgomery Traction Co., 175 Ala. 102, 57 So. 471. 
 
 6»Raymond v. Hill, 168 Cal. 473, 143 Pac. 743. 
 
 «"Wheeler v. Hall, 157 Mo. App. 38, 137 S. W. 63. 
 
 "^State V. Bussian, in Minn. 488, 127 N. W. 495. 
 
 820'Brien v. Washington Water Power Co., 71 Wash. 688, 129 Pac. 391, 6 N 
 C. C. A. 31 S. 
 
 «3Hiscock V. Phinney, 81 Wash. 117, 142 Pac. 461, 8 N. C. C. A. 382. 
 
 277 
 
§ 349 ""^^^ ^AW OF THB ROAD 
 
 §, 349. A driver is not bound under all circumstances to look 
 behind when crossing from one side to the other. — In Rand v. Syms" 
 the trial judge in his charge to the jury (affirmed by the court above) 
 on this point, said: 
 
 "I simply repeat to you the general duty of a man to look on 
 either side of him, or behind him, under some circumstances. 
 * * * I imagine that if a person were driving through a 
 crowded way, like Washington Street in Boston, where there is 
 a row or two of cars or carriages on either side or behind, he 
 might have to look almost everywhere ; and there might be cases 
 where you are driving along a country road, or across a bridge, 
 where your whole duty would be accomplished if you looked 
 ahead."«= 
 
 § 350. Traveling in procession. — The rule requiring due care is 
 the same where vehicles are travelling one behind the other and the 
 front one unexpectedly slows up."" 
 
 The case of Adams v. Swift (supra), turned rather on another point 
 but the element of due care or the want of it, was the basis of the 
 opinion."' 
 
 § 351. Motorcyclist Bound by Rules of Road. — It is proper to 
 charge that a motorcyclist is bound by the same rules of the road as a 
 driver of an automobile."* 
 
 II. Mbkting on Road 
 
 § 352. Duty to turn out. 
 
 353. Duty when driving close to curb. 
 
 354. Driving on wrong side of road as negligence. 
 
 «*i62 Mass. 163, 38 N. E. 196. 
 
 s^See also Foley v. Forty-Second St. R. Co., 97 N. Y. Supp. 958, 49 Misc. 649; 
 Vincent v. Norton & T. St. Ry., 180 Mass. 104, 61 N. E. 822; Delfs v. Dunshee, 
 143 Iowa 381, 122 N. W. 236. 
 
 »«Adams v. Swift, 172 Mass. 521, 52 N. E. 1068; Vincent v. Norton & T. St. 
 Ry., 180 Mass. 104, 62 N. E. 822 ; Foley v. Forty-Second St. R. Co., 49 Misc: 649, 
 97 N. Y. Supp. 958, 1906; Earle y. Pardington, 116 N. Y. Supp. 675, 1909. 
 
 «'In Earle v. Pardington, 116 N. Y. Supp. 67s, the leading machine unex- 
 pectedly stopped without warning and the plaintiff claimed that by the custom 
 of the road the defendant should have given a warning signal before stopping, 
 and the court held that the question was for the jury. Negligence of automobile 
 drivers traveling in procession and frightening horses, see post § 1047. 
 
 ^^Scott V. Down, 162 Mich. 636, 127 N. W. 712. 
 
 278 
 
MEETING § 352 
 
 355. Greater care needed when driving on wrong side. 
 
 356. Right to assume that other vehicles will keep to right. 
 
 357. Driving on wrong side of road to avoid defects. 
 
 358. Driving on wrong side to avoid vehicles. 
 
 359. Failure to turn hack after passing obstruction. 
 
 360. Liability for injuring one on wrong side of road. 
 
 361. Driving on left — See-saw movements. 
 
 § 352. Duty to Turn Out. — ^When meeting to pass going in oppo- 
 site directions, each should "seasonably" turn to the right of the mid- 
 dle of the travelled part of the way, so as to afford a clear passage,^ 
 and one is negligent who fails to turn to the right on meeting another 
 automobile.^ 
 
 Where the defendant's automobile collides with the plaintiff's team 
 on a dark misty night and there is evidence that the plaintiff's team 
 turned out to avoid the automobile approaching, the plaintff is entitled 
 to go to the jury.^ "The fact that one does not give another the full 
 half of the road to which he is entitled is not conclusive evidence of 
 negligence," and it must be shown that the failure in this respect was 
 the proximate cause of the accident.* 
 
 It is always evidence of negligence when one person travelling in a 
 direction opposite to that of another, runs into such vehicle, the latter 
 being upon its own side of the road.° And seeking to make a "close 
 pass" is a form of driving that "cannot be too severely condemned."" 
 A verdict for the plaintiff was sustained on evidence that the de- 
 fendant was driving his automobile thirty miles an hour towards the 
 plaintiff in a buggy who turned with all except one wheel over on his 
 right side of the road.'' 
 
 ^Com. V. Allen, 52 Mass. 403 ; Lovejoy v. Dolan, 64 Mass. 496. See also cases 
 on the preceding point. Thompkins v. Barnes, 145 App. Div. 637, 130 N. Y. S. 
 320, Collision with Horse- Vehicle. Injuries received in collision between auto- 
 mobiles and horses and horse-drawn vehicles, 4 N. C. C. A. 15, 16 note. 
 
 ^Hubbard v. Bartholomew, 163 Iowa 58, 144 N. W. 13, 49 L. R. A. N. S. 443. 
 
 *Erwin V. Shell, up Minn. 496, 138 N. W. 691. 
 
 *Needy v. Littlejohn, 137 Iowa 704, 115 N. W. 483. 
 
 "Anderson v. Sparks, 142 Wis. 398, 125 N. W. 925; Pfeiffer v. Radke, 142 Wis. 
 512, 125 N. W. 934. 
 
 'People V. Scanlon, 132 N. Y. App. Div. 528, 117 N. Y. Supp. 57; Gurney v. 
 Piel, 105 Maine 501, 74 Atl. 1131. 
 
 'Williams v. Baldrey, (Oklahoma, 1916), 152 Pac. 814. 
 
 '279 
 
§ 353 THE LAW OF THE ROAD 
 
 Evidence that the defendant was at the time of the accident driving 
 on the right of the middle of the travelled part of the way is evidence 
 of the exercise of due care on his part and if the plaintiff was driving 
 in the opposite direction and collided with the defendant this is evi- 
 dence that the plaintiff was acting in violation of a statute requiring 
 him to drive to the right of the middle of the road and was negligent.* 
 
 A duty to give up to one approaching one-half the road means one- 
 half the travelled track but the autoist is under no duty to swerve at all 
 from the travelled track if the approaching vehicle is outside of it and 
 there is room to pass." 
 
 So one driving in the centre of the street may recover where another 
 suddenly turns toward him and a head on collision results.^" 
 
 § 353. Duty when driving Close to Curb. — When travelUng close 
 to the curb, a driver "must be observant not only of what is directly 
 in front of him, but of pedestrians who are travelling on the sidewalk 
 and who may step into the street directly in front of the car," and 
 especially is this so, when the operator is on the wrong side of the 
 road and near the curb because the foot passenger is less likely to look 
 in that direction for an approaching vehicle.^^ 
 
 In Smith v. Gardner^^ the court say : The laws of the road 
 
 "Oiily require persons meeting each other on the road with 
 carriages, to turn to the right, and do not prohibit their using 
 any part of the street that may be convenient at other times." 
 
 When the plaintiff is driving on the extreme right hand side of the 
 road he need not fear being charged with contributory negligence in 
 most cases. So where a collision occurred at night between an automo- 
 bile and a horse and buggy and the plaintiff testified that he turned out 
 so that his left rear wheel was almost in the rut on the right hand side of 
 the road and he was blinded by the lights of the automobile and the de- 
 
 sBourne v. Whitman, 209 Mass. 155, 95 N. E. 4«M, 35 I/- R. A. N. S. 701 (note), 
 2 N. C. C. A. 318, 6 N. C. C. A. 317- 
 
 »Needy v. Littlejohn, 137 Iowa 704, iis N. W. 483. 
 
 "Haden v. McCally, 166 Mo. App. 675, 150 S. W. 1132, 6 N. C .C .A. 316. 
 
 "Bradley v. Jaeckel, 65 Misc. 509, 119 N. Y. Supp. 1071 ; Delfs v. Dunshee, 143 
 Iowa 381, 122 N. W. 236. 
 
 ^^TJ Mass. 419- 
 
 280 
 
MEETING § 354 
 
 fendant did not turn out at all the questions of negligence are for the 
 jury.^' 
 
 § 354. Driving on Wrong Side of Road as Negligence. — Driving 
 on the left side of the street contrary to statute is not an act of negli- 
 gence in itself in all cases although it is prima facie evidence of negli- 
 gence," but it has been held that the driver of an automobile is guilty 
 of gross negligence in driving on the wrong side of the street in de- 
 fiance of statute and ordinance.^' It is proper to refuse to charge that 
 the mere driving of an automobile on the left of a street is negli- 
 gence where there was no claim that this was in itself negligence as this 
 would have been misleading.^^ 
 
 In Randolph v. O'Riordan," speaking of the defendant's "team 
 being on the left of the middle of the travelled part of the road" as 
 evidence of negligence, the court by Mr. Justice Morton held that : 
 
 "The fact that he was upon the wrong side of the way was 
 evidence tending to show that he was at fault, but was not con- 
 clusive; and that it was a question upon all the evidence 
 whether or not the party upon the wrong side of the way was 
 negligent, that being a circumstance. These instructions con- 
 formed to the law as heretofore laid down by this court, and 
 were correct."^* 
 
 The defendant driving towards plaintiff on the left may be negligent 
 and his negligence may be the proximate cause of an accident where 
 the plaintiff in trying to pass the defendant turned off the road.^* The 
 act of the defendant in driving on the left side of the street is the 
 proximate cause of his collision with a horse and buggy driven on its 
 right side towards the automobile.^" 
 
 A bicyclist who is riding on the wrong side of the street cannot re- 
 cover when hit by an automobile in the absence of evidence that the 
 
 I'Chandler v. Matheson Co., 208 Mass. S69, 95 N. E. 103. 
 "Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319. 
 ^^Ballard v. Gsllins, 63 Wash. 493, 115 Pac. 1050. 
 18C00I V. Peterson, 189 Mo. App. 717, 175 S. W. 244. 
 "IS5 Mass. 331. 338, 29 N. E. 583- 
 
 isjones V. Andover, 10 Allen 18; Steele v. Burkhardt, 104 Mass. 59; Damon 
 V. Scituate, 119 Mass. 66. 
 "Hubbard v. Bartholomew, 163 Iowa 58, 144 N. W. 13, 49 1,. R. A. N. S. 443. 
 2«Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319. 
 
 281 
 
§ 355 THS LAW OP THE ROAD 
 
 latter was being run at unsafe or dangerous speed.^^ But a verdict was 
 rendered in favor of a motorcyclist where an automobile suddenly 
 turned to its left side of the street and ran him down.^^ 
 
 Where it is alleged in the declaration that the defendant was on the 
 wrong side of the street at the time of the accident the declaration need 
 not also allege that his presence there was not consistent with due care 
 on his part as the burden is on the defendant to prove this." 
 
 § 355- Greater Care needed when Driving on Wrong Side. — If 
 the driver is on the "wrong" side of the road he is bound to exercise 
 greater diligence to avoid other travellers than if he was on the right 
 side.^* 
 
 § 356. Right to Assume that other Vehicles will keep to Right, 
 — A driver on the right hand side of the road has a right to assume 
 that vehicles coming in the opposite direction will not violate the law 
 of the road.2= 
 
 § 357. Driving on Wrong Side of Road to avoid Defects. — There 
 are even occasions when the operator should drive on the wrong side 
 of the road, and a verdict against him will be sustained because he did 
 not do so. Such cases arise when obstructions are encountered, repairs 
 to the highway are being made, or it is necessary for the prevention of 
 injury to one's self or others."* 
 
 A traveller having full knowledge of the existence of an obstruc- 
 tion or defect in the highway, cannot wilfully or recklessly keep on 
 and involve himself in danger which he has no reasonable cause to 
 think he could successfully encounter. But it does not follow that it 
 is not consistent with reasonable care to attempt to proceed. The ques- 
 tion in such cases is whether the traveller had reasonable cause to 
 
 2iPresser v. Dougherty, 239 Pa. St. 312, 86 Atl. 854. 
 
 22Hazzard v. Carstairs, 244 Pa. 122, 90 Atl. 556. 
 
 28Grier v. Samuel, 4 Boyce, Del. 74, 83 Atl. 759- 
 
 2*See § 1080. Mason-Seaman Transp. Co. v. Wineburgh, 72 Misc. 398, 130 N. Y. 
 S. 178; Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876; New York Transp. 
 Co. V. Garside, 157 Fed. Repr. 521, 525; Hannon v. St. Clair, 44 Colo. 134 96 
 Pac. 822. See also Pluckwell v. Wilson (supra, Sec. 249). 
 
 26Trout Auto Ivivery Co. v. Peoples G. L. & C. Co., 168 111. App. 56, 4 N. 
 C. C. A. II ; Mason-Seaman Transp. Co. v. Wineburgh, 72 Misc. 398, 130 N. 
 Y. S. 178; Ballard v. Collins, 63 Wash. 493, "5 Pac. 1050. 
 
 2«Baker v. Fall River, 187 Mass. 57, 72 N. E. 336; Suell v. Jones, 49 Wash. 
 582, 96 Pac. 4. 
 
 282 
 
MEETING § 358 
 
 think that he might escape the danger by the means which he adopted 
 and used reasonable care in making the attempt, and the answer is for 
 the jury." 
 
 A person who knows of a defect on a highway and voluntarily un- 
 dertakes to test it when it could be avoided, cannot recover against 
 municipal authorities for losses incurred through such defect.^' 
 
 § 358. Driving on Wrong Side to avoid Vehicles. — Where a 
 driver instead of waiting as required by law for the passengers on a 
 street car to alight crosses behind the car onto the left track and from 
 there to avoid another street car drives over to the left roadway where 
 the collision occurred, he is negligent and cannot claim that he was 
 forced by the approaching emergency caused by the approaching car 
 to move to the left roadway as he was acting illegally in cold blood in 
 going there in the first place. He did not claim he was pressed for 
 time.'" 
 
 Where an automobile veered to the left side of the street to avoid 
 another vehicle and hit a pedestrian the questions of due care are for 
 the jury.^^ 
 
 Where the road on the right side is obstructed by a team standing 
 opposite a standing street car it is error to charge that it is negligence 
 per se for a motorist to pass on the left side in violation of law. There 
 may be facts which will excuse a technical violation of the law and not 
 render it actionable negligence, when these facts are beyond the con- 
 trol of the person charged with the violation. The questions should be 
 left to the jury whether (i) the defendant had a reasonable excuse for 
 violating the law, (2) he used reasonable care in doing so.^^* 
 
 The driver of a horse is not necessarily negligent in turning to the 
 left in passing a standing automobile at night when the defendant's 
 automobile coming in the other direction has only one kerosene light.^^ 
 
 "Thomas v. Western Union, 100 Mass. 158; Mahoney v. Met. Railroad Co., 
 104 Mass. 75. 
 
 2»Wharton on Negligence, 26. ed., sec. 440; Pittsburg R. R. Co. v. Taylor, 
 104 Pa. 314. 
 
 3»Ballard v. Collins, 63 Wash. 493, 115 Pac. 1050. 
 
 ^^Cowell V. Saperston, 144 App. Div. 3, 134 N. Y. S. 284. 
 
 "aConder v. Griffith, (Ind. 1916), in N. E. 816. 
 
 ^^Menefee v. Whisler, 169 Iowa 19, 150 N. W. 1034. 
 
 283 
 
§ 359 THE LAW OF THE ROAD 
 
 § 359- Failure to turn back after passing obstruction —A 
 verdict for the plaintiff a passenger in a head-on collision with 
 the defendant, driving another car was sustained. The defendant 
 turned to his left side of the road to avoid a pile of stones, ^nd the 
 plaintiff claimed he did not turn back as he should.* 
 
 § 360. Liability for injuring One on Wrong Side of Road,— It 
 will not, however, excuse a person who is on his own side of the road 
 for running "carelessly and recklessly" into the man who is on the 
 wrong side of the road and injuring him.^' 
 
 In Butterfield v. Forrester^* Lord Ellenborough said : 
 
 ."In cases of persons riding on the wrong side of the road, 
 that would not authorize another purposely to ride up against 
 them." 
 
 And in Clay v. Wood^= the same high authority said : 
 
 "For though a person might be on his wrong side of the 
 road, if the road was of sufficient breadth, so that there was 
 full and ample room for the party to pass, he was of opinion 
 he was bound to take that course which should carry him clear 
 of the person who was on his wrong side; and that if any in- 
 jury happened, by running against such person, he would be an- 
 swerable."^* 
 
 In this connection in Parker v. Adams" the court say : 
 
 "The traveller on the public highway is not, with foolhardi- 
 ness, * * * to rush into danger because his fellow traveller 
 * * * has wrongfully given him the opportunity to receive 
 an injury. On the contrary, he must use ordinary care and 
 prudence to avoid an injury that might otherwise result from the 
 defaults of others." 
 
 In Rand v. Syms^* the court in charging the jury, said: 
 
 "It is only when he is about to meet somebody that the law 
 obliges him to go to the right, and * * * i ^iU add in that 
 
 ♦Hackworth v. Ashby, Ky., 178 S. W. 1074. 
 8'Spofford V. Harlow, 85 Mass. 179. 
 s*ii East 60. 
 865 Esp. 44. 
 
 88See also Thompson Co. on Negligence, 2d ed., sec. 1287; Decou v. Dex- 
 heimer, 73 Atl. Repr. 49 (N. J.). 
 8^53 Mass. 419. 
 S8162 Mass. 163, 38 N. E. 196. 
 
 284 
 
OVERTAKING AND PASSING § 361 
 
 other case, when a party is behind trying to pass him, and he 
 has some notice or knowledge that such person is trying to pass 
 him."^» 
 
 § 361. Driving on Left — See-Saw Movements. — A verdict for the 
 plaintiff was reversed on appeal where it appeared that the plaintiff 
 was driving on the left side of the road and the defendant swerved 
 at the last moment to his left to avoid him just as the plaintiff turned 
 to avoid the defendant. If the plaintiff's story was true the accident 
 would not have happened.*" 
 
 The defendant may be found negligent and the plaintiff free from 
 negligence where the defendant turns towards his left side of the road 
 running at high speed and the plaintiff to avoid him turns to his left 
 just as the defendant turns again to his right causing a collision. The 
 question is whether plaintiff's act was that of a reasonably prudent 
 
 III. Overtaking and Passing 
 
 § 362. In general. 
 
 363. Rule does not apply to pedestrains. 
 
 364. Rule as applied to street cars. 
 
 365. Right to pass. 
 
 366. Duty of car passing to signal. 
 
 367. Signal by leading car. 
 
 368. When vehicle passing does not turn aside. 
 
 369. Negligence in turning to left in passing. 
 
 370. Looking to one side while passing. 
 
 371. Cutting in. 
 
 Z72. Passing on right as negligence. 
 
 373. No presumption of negligence from collision in passing. 
 
 374. Duty of leading car to turn to right. 
 
 375. Leading vehicle turning to left or stopping. 
 
 376. When leading vehicle does not turn aside. 
 
 377. Leading vehicle wobbling. 
 
 378. Driver of leading vehicle need not keep lookout behind. 
 
 § 362. In GeneraL — When two cars are travelling in the same di- 
 rection "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 
 
 soSee also Gififord v. Jennings, 190 Mass. 55, 76 N. E. 233. 
 *»Skene v. Graham, Maine igi6, 95 Atl. 950. See § 1264. 
 *iLloyd v. Calhoun, 78 Wash. 438, 139 Pac. 232. 
 
 285 
 
§ 363 THE IvAW OF THB ROAD 
 
 left" for the rear car to pass safely. If there is not such room, then 
 the front car on request or notice must turn aside to make room for a 
 safe passage. If at the moment, the highway is not wide enough for 
 the front car to turn aside, "it is the duty of the rear car to wait until 
 a place is reached where this may be done."^ Under such circum- 
 stances the passing vehicle should not unduly crowd the vehicle being 
 passed. The question of negligence in all these cases, is for the jury.* 
 In Suell V. Jones* the court held that there was no conflict between 
 the provisions contained in the ordinance which required the driver of 
 a vehicle to pass another vehicle in a certain manner, and also required 
 that he shall keep to a certain side of the street while going in a given 
 direction. 
 
 § 363. Rule does not apply to Pedestrians.* — The law of the road 
 requiring the driver of a carriage to pass the carriage ahead by driving 
 to the left of the travelled part of the way does not apply to pedes- 
 trians.° 
 
 § 364. Rule as applied to Street Cars. — An electric street car is 
 a vehicle within the terms of the law of the road requiring one vehicle 
 passing another going in the same direction to pass to the left and 
 therefore an automobile must pass to the left of a street car going in 
 the same direction. The operator is therefore disobeying the law of 
 the road in turning to the right of a street car and is liable for injury 
 to one alighting from the car.' 
 
 The statute requiring an automobile passing a street car going in the 
 same direction to pass it on the left is for the protection of the street 
 car and persons therein, and has no application to one who has alighted 
 from it and ceased to be a passenger. The automobile operator is 
 bound to take notice of the fact that the car had stopped to allow pas- 
 sengers to alight and to so conduct his vehicle as not to run down per- 
 sons who had alighted, but that is not a duty imposed by the statute, 
 
 iMark v. Fritsch, 19S N. Y. 282, 88 N. E. 380. 
 
 ^Purtell V. Jordan, 156 Mass. 573, 31 N. E. 652, and cases cited above and 
 below ; also Delfs v. Dunshee, 144 Iowa 105, 122 N. W. 236, 1909 ; Strever v. 
 Woodward, 160 la. 332, 141 N. W. 931, 4 N. C. C. A. 323. 
 
 24Q Wash. 582, 96 Pac. 4. 
 
 *The law of the road as affecting pedestrians, see 51 L,. R. A. N. S. 1007. 
 
 BBrown v. Moyer, 212 Mass. 382, 99 N. E. 237. 
 
 BFoster v. Curtis, 213 Mass. 79, 99 N. E. 961, 42 L. R. A. N. S. 1188 (note). 
 The effect of this decision was reversed by statute (St. 1913, § 223). 
 
 286 
 
OVERTAKING AND PASSING § 3^5 
 
 but is the duty of using due care. An instruction that the defendant in 
 attempting to pass the car on the right must use greater care than if 
 he passed on the other side is also erroneous. In either case he must 
 use care proportionate to the conditions.** 
 
 § 365. Right to Pass. — An operator has a right to pass a team in 
 front of him and to turn to the left side of the road in doing so and 
 is not liable if he uses due care in doing so.'^ 
 
 § 366. Duty of Car Passing to Signal. — ^The operator of an auto- 
 mobile on approaching from behind a vehicle going in the same direc- 
 tion and intending to pass it on the proper side, should seasonably 
 sound his horn not only to warn the driver of the vehicle ahead of 
 such intention, but also to keep to his own side of the road.* 
 
 § 367. Signal by Leading Car. — It is commonly made by statute 
 the duty of the driver of a motor vehicle to signal by extending the 
 arm to one side when about to stop or turn and even in the absence 
 of statute such failure to signal may be evidence of negligence.® 
 
 But where an accident is caused by the collision of two automobiles 
 passing while going in the same direction a signal by the leading ma- 
 chine of the approach to a crossing is immaterial as it could have no 
 effect on the resulting accident.^" 
 
 § 368. When Vehicle Passing does not Turn aside. — Where it 
 appears that the plaintiff in a team turned entirely out of the road to 
 let an automobile pass from behind it is error to instruct the jury as 
 to the duties of a driver overtaking another as to turning out and turn- 
 ing back where there is no evidence that the defendant turned out of 
 the road at all.^^ 
 
 § 369. Negligence in turning to Left in Passing. — ^The driver 
 may be found negligent in turning to the left to pass a buggy although 
 
 saMarsh v. Boyden, 33 R. I. SiP; 82 Atl. 393, 40 L. R. A. N. S. 582, 2 N. C. 
 C. A. 410. 
 
 TRibas V. Revere Rubber Co., 37 R. I. 189, 91 Atl. 58. 
 
 sGifford V. Jennings, 190 Mass. 54, 55, 76 N. E. 233 ; Matlack v. Sea, 144 Ky. 
 749, 139 S. W. 930, 2 N. C. C. A. 30s ; Fowkes v. Case Threshing Mach. Co., 
 Utah 191S, 151 Pac. 53. 
 
 9See post, § 37S. 
 
 "Matlack v. Sea, 144 Ky. 749, 139 S. W. 930, 2 N. C. C. A. 305. 
 
 iiZellmer v. McTaigue, 153 N. W. yy. 
 
 287 
 
§ 37° THE I,AW OF THE ROAD 
 
 he is not necessarily negligent in turning to the left except when he 
 is about to pass another vehicle.^'' 
 
 § 370. Looking to one Side while Passing.— The defendant may 
 be found negligent in failing to see a bicycle rider whom he is over- 
 taking while defendant is looking in another direction.!^ 
 
 § 371. Cutting in.— It is negligence for the driver in overtaking 
 and passing another team to turn in close although he does so to avoid 
 an obstruction in the road. This obstruction is no excuse. There 
 was nothing to prevent him from stopping his car.>* A driver of an 
 automobile overtaking and passing a carriage may be found negligent 
 if he turns in short against the carriage. The defendant claimed that 
 he turned in to avoid hitting a bicyclist but the verdict of the jury 
 found against him on this point.^' 
 
 Where one car at high speed passes another going in the same di- 
 rection a passenger in the latter car may recover if the car passing 
 turns across against and in front of the slower moving car causing it 
 to go over an embankment, even though it did not hit it with force 
 suflScient to force it over the embankment." 
 
 If the plaintiff's acts clearly indicated that he did not intend to turn 
 to the right, and he did not turn to the left or accelerate his speed as 
 the defendant was passing him in the same direction the latter must 
 not either wilfully or negligently turn to the right against the plain- 
 tiff's machine and he cannot escape liability on the ground that the 
 plaintiff was guilty of contributory negligence in having his machine 
 too far to the left of the road.^^ 
 
 § 372. Passing on Right as Negligence.— It is evidence of negli- 
 gent operation to attempt to pass a vehicle going in the same direction 
 on the right of the vehicle to be passed." Whether a traveller is negli- 
 
 i^Giles V. Temes, 93 Kans. 435, 143 Pac 491- 
 
 "Rogers v. Phillips, 217 Mass. 52, 104 N. E. 466. See § 340- 
 
 "MarshaH v. Taylor, 168 Mo. App. 240, 153 S. W. 527. 
 
 "Blado V. Draper, ^ Neb. 787, 132 N. W. 410. 
 
 i«Granger v. Farrant, 179 Mich. 19, 146 N. W. 218, 51 L- R. A. N. S. 453- 
 
 I'O'Donnell v. Johnson, Vol. 36, R. I. 308, 90 Atl. 165. 
 
 isSmith V. Gardner, ^^ Mass. 418; Spoflford v. Harlow, 85 Mass. 178; Jones 
 V. Andover, 92 Mass. 20; Damon v. Scituate, 119 Mass. 66; Meservey v. Lockett, 
 161 Mass. 333, 37 N. E. 310; Holt v. Cutler, 185 Mass. 24, 69 N. E. 33; Simeone 
 V. Lindsay, 65 Atl. 778, 6 Penn. 224 (Del.) ; Fowkes v. Case Threshing Mach. 
 Co., Utah , 151 Pac. iZ, passing load of hay. 
 
 288 
 
OVERTAKING AND PASSING § 372 
 
 gent in passing on the wrong side of the road, is not whether it is rea- 
 sonably impracticable to pass on the proper side, but whether it is rea- 
 sonably safe and prudent to pass on the other side.^° 
 
 If an automobilist passes a buggy going in the same direction on the 
 right side this is not conclusive evidence of negligence but the test is 
 that of due care under the circumstances. The effect of the statute 
 is to lay the burden of justification on the man who was on the wrong 
 side of the street.^" 
 
 One overtaking another may pass to either side according to the cir- 
 cumstances using due caution and keeping a safe distance behind when 
 not passing. Hence if the leading vehicle should use the left side of the 
 street the rear vehicle may pass to the right.^°* 
 
 The statutory requirement that the passing vehicle shall "drive to 
 the left of the middle of the travelled part of the way" does not always 
 require an automobile to pass to the left of another vehicle going in the 
 same direction. Where the jury find the circumstances to be such 
 that in the exercise of reasonable care the statute could not be literally 
 obeyed no inference of negligence can be drawn.^^ 
 
 Where the statute provides that an automobile passing another ve- 
 hicle going in the same direction must turn to the left it is negligence 
 per se to attempt to pass by turning to the right. The operator is not 
 liable however unless the violation of the statute caused the accident 
 nor if the negligence of the plaintiff contributed. If the plaintiff was 
 driving on the left side of the road and failed to go to the right side 
 after he knew or should have known of the approach of the automo- 
 bile such conduct is negligence.^^ 
 
 One overtaking a bicycle may pass it on the right unless the bicycle 
 rider seasonably turns to the right on signal.^^ But it is the duty of the 
 
 i^Smith V. Conway, 121 Mass. 216, 219; Hales v. Dearborn, 18 Mass. 345; 
 Parker v. Adams 53 Mass. 415; Lovejoy v. Dolan, 64 Mass. 497; Smith v. 
 Gardner, 77 Mass. 418; Wrinn v. Jones, in Mass. 360; Randolph v. O'Riordan, 
 iSS Mass. 331, 29 N. E. 583 ; Stinson v. Kenney, 176 Mass. 429, Perlstein v. Am. 
 Exp. Co., 177 Mass. 530, 59 N. E. 194; Wood v. Boston El. Ry., 188 Mass. 161, 
 74 N. E. 298. 
 
 ^oH^rdman v. Zwart, Iowa 1915, 149 N. W. 631. 
 
 20aWright v. Mitchell, (Penn. 1916), 97 Atl. 478. 
 
 ^iPoster V. Curtis, 213 Mass. 79, 99 N. E. 961, 42 1,. R. A. N. S. 1188, Ann. 
 Cas. 1913, E. 1116. 
 
 z^Campbell v. Walker, Del. Super. Ct. 7 Pen. 2, 78 Atl. 601. 
 
 ^'Weaver v. Carter, 28 Cal. App. 241, 152 Pac. 323. 
 
 289 
 19 
 
§ 373 '■'^^ ^^W Olf THfi ROAD 
 
 plaintiff riding a bicycle when an automobile is approaching from the 
 rear to turn to the right and if the defendant attempts to pass him on 
 the right this is the proximate cause of the injury and being an unlaw- 
 ful act renders him liable.^* 
 
 A motorcyclist cannot recover where he in overtaking a wagon at- 
 tempts to pass it on the right in violation of law as the driver of the 
 v/agon being unaware of his presence turns to the right.^*=- 
 
 § 373- Presumption of Negligence from Collision in Passing. — 
 There is no presumption that the defendant was negligent simply be- 
 cause he comes up from behind and runs into horse and wagon. The 
 burden remains still on the plaintiff to prove negligence.^' 
 
 But evidence that while the defendant was driving a farm wagon 
 on the right hand side of a wide road it was hit by an automobile com- 
 ing from behind justifies a verdict for the plaintiff.^" 
 
 § 374. Duty of Leading Car to Turn to Right. — If no impedi- 
 ment intervenes the driver ahead is bound to give way to the vehicle 
 behind to pass him. If he wilfully obstructs such passage he is liable 
 to public prosecution and for damages in a civil action if any sus- 
 tained.^' 
 
 It is the rule of the common law that a traveller on the highway is 
 not obliged to turn his vehicle aside for another travelling in the same 
 direction, if there be convenient room for the other to pass upon either 
 side and a traveller may pass a vehicle ahead of him upon either side, 
 provided he can do so with safety.^* The failure of a plaintiff, driving 
 an automobile to turn to the right to allow the defendant to pass in an- 
 other automobile going in the same direction is not necessarily negligent 
 conduct, contributing to the accident.^^ 
 
 =*Weaver v. Carter, 28 Cal. App. 241, 152 Pac. 323. 
 
 2*aBorg V. Larson (Ind. App. 1916), in N. E. 201. 
 
 2BGrogitzki v. Detroit Ambulance Co., 186 Mich. 374, 152 N. W. 923. 
 
 2sSalminen v. Ross (Cir. Ct. D. Mass.), 185 Fed. 997, 112 C. C. A. 148. 
 
 27Mass. Rev. Laws, chap. 51, sees. 2 and 4; Com. v. Temple, 80 Mass. 69, 76; 
 Nadeau v. Sawyer, 73 N. H. 70, 59 Atl. 369 ; Mark v. Fritsch, 19S N. Y. 282, 22 L. 
 R. A. N. S. 632, 126 N. Y. App. Div. 920. But see Elenz v. Conrad, 123 Iowa 
 522, 99 N. W. 138; Lorenz v. Tisdale, 11 1 N. Y. Supp. 173, 127 App. Div. 423; 
 Weaver v. Carter, 1916, Cal. App. 152 Pac. 323 ; Campbell v. Walker, Del. Super. 
 Ct. 2 Boyce 41, 78 Atl. 601 ; Nadeau v. Sawyer, 73 N. H. 70, S9 Atl. 369. 
 
 280'Donnell v. Johnson, 36 R. L 308, 90 Atl. 165. 
 
 2»0'Donnell v. Johnson, 36 R. L 308, 90 Atl. 165. 
 
 290 
 
OVERTAKING AND PASSING § 375 
 
 Under the New York statute requiring a vehicle being passed to turn 
 to the right it need not turn to the extreme right hand side of the 
 highway.^" 
 
 When two cars are travelling 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" for the rear car to 
 pass safely. If there is not such room, then the front car on request or 
 notice must turn aside to make room for a safe passage. If at the 
 moment, the highway is not wide enough for the front car to turn 
 aside, "it is the duty of the rear car to wait until a place is reached 
 where this may be done."'^ 
 
 Where a bicycle rider turns to the right to avoid an automobile ap- 
 proaching him from the front on a narrow road and is hit by an auto- 
 mobile approaching from the rear at an illegal speed attempting to pass 
 him on the right a verdict for the plaintiff will be sustained.'^ 
 
 § 375. Leading Vehicle Turning to Left or Stopping. — Very 
 close questions arise when the leading vehicle stops or turns to the 
 left as another is attempting to pass. The leading vehicle may be 
 liable if it stops or turns suddenly. A complaint averring that the de- 
 fendant turned with unnecessary suddenness and without warning 
 across the course of the plaintiff travelling behind in the same direction 
 on a motorcycle is sufficient. While the driver of a vehicle has the 
 right to turn to either direction yet this right must be exercised in such 
 a reasonable manner as not unduly to interfere with the use of the 
 highway by others. Plainly an abrupt stopping or turning aside of a 
 vehicle may involve danger to a traveller in the rear who is going in the 
 same direction.'^ 
 
 On the other hand the vehicle passing may be liable if driven care- 
 lessly and thus striking the other especially when the leading car is 
 forced to turn to the left to avoid some obstruction.^* 
 
 3«Tooker v. Fowler & Sellars Co., 132 N. Y. S. 213. 
 
 "Mark v. Pritsch, 195 N. Y. 282, 22 h. R. A. N. S. 632, affirming 126 N. Y. 
 App. Div. 920. 
 
 s^Weaver v. Carter, 28 Cal. App. 241, 152 Pac. 323. 
 
 '^Overton v. Bush, 2 Ala. App. 623, § 6 So. 852. 
 
 '*See Gurney v. Piel, 105 Maine 501, 74 Atl. 1131, where the defendant claimed 
 that the plaintiff's horse swerved to the left as he was passing, and the question 
 was left to the jury. 
 
 291 
 
§ 376 THB 1,AW OP THB ROAD 
 
 The driver of a team is not negligent in turning out to pass a stand- 
 ing team although in doing so he is run into by a taxicab coming from 
 the rear. On the contrary this raises an inference of negligence of 
 the driver of the taxicab.'' 
 
 The question of the plaintiflE's due care is properly left to the jury 
 where he swings to the left across the road and is hit by an automobile 
 coming from behind where the operator of the automobile gave no 
 warning and was looking in another direction and did not see the 
 plaintiff."" 
 
 That the defendant swung over to the left side of the street to avoid 
 a team turning is evidence of negligence."' So the following vehicle 
 may be liable if the leading car is trying to turn around when the col- 
 lision occurs. Where a driver sees another ahead of him starting to 
 turn around and speeds up to pass ahead of him and fails, this is evidence 
 of negligence."' A bicycUst is not negligent as matter of law when rid- 
 ing on the right hand side of the road and turning to the left to retrace 
 his course without looking behind to see if an automobile is coming."' 
 
 § 376. When Leading Vehicle does not Turn aside. — Negligence 
 may be found where a chauffeur overtakes a wagon travelUng in a 
 beaten path in the snow and attempts to pass it though the wagon does 
 not turn aside.*" 
 
 § 377. Leading Vehicle Wobbling. — A bicyclist may be found 
 free from negligence where he turns to the left on leaving a motor 
 truck behind him and when it gets close to him he attempts to turn 
 again to the right and his bicycle skids on the car track and he falls.*^ 
 
 A driver may be found negUgent if he suddenly turns first to the 
 right and then to tlie left colliding with another car coming up from 
 behind.*^ 
 
 § 378. Driver of leading Vehicle need not keep Lookout behind. 
 A city ordinance which requires the driver of a team, on being over- 
 
 sBWiedeman v. St. Louis Taxicab Co., 182 Mo. App. S30, 165 S. W. 1 105. 
 88Rogers v. Phillips, 217 Mass. 52, 104 N. E. 466. 
 s'Winckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061. 
 ssArmstead v. Lounsberry, Minn., 151 N. W. S42. 
 
 ssRogers v. Phillips, 206 Mass. 308, cf. 217 Mass. 52, 104 N. E. 466, 92 N. E. 
 327, 28 L. R. A- N. S. 499 note. 
 *»Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527. 
 *iSheffield v. Union Oil Co., 82 Wash. 386, 144 Pac 529- 
 «Matlack V. Sea, 14I. Ky. 749, I39 S. W. 930, 2 N. C. C. A. 30S. 
 
 292 
 
MEETING AT CORNERS § 379 
 
 taken from the rear, to turn out of the way does not require him to 
 keep looking back in anticipation of being overtaken. If he does not 
 know of the team behind as due to the noise of his own cart he does not 
 hear it he is not guilty of negligence in not turning out although the 
 horn of the automobile is blown.^^ 
 
 IV. MeUTiNG AT Corners 
 
 § 379- General rules. 
 
 380. Duties reciprocal. 
 
 381. Ordinary care sufficient. 
 
 382. One reaching crossing first has right of way. 
 
 383. Crossings. 
 
 384. "Intersecting" streets includes street ending at corner. 
 
 385. Speed at crossing. 
 
 386. Speed where view obstructed. 
 
 387. Looking straight ahead. 
 
 388. Turning suddenly from centre of street. 
 
 389. Where driver's companion looks behind before turning. 
 
 390. Signal before turning. 
 
 391. Signal where intersecting street closed. 
 
 392. Violation of traffic rules. 
 
 393. Vehicle on left side of street. 
 
 394. Duty to hug curb in turning to right. 
 
 395. "Curb" applied to fence in street. 
 
 396. Turning up one way street. 
 
 397. Cutting comer in turning to left. 
 
 398. Right to assume that other car is traveling in proper course. 
 
 399. Right to assume other car is moving at lawful speed. 
 
 400. Duty to stop. 
 
 401. When one may speed up to avoid accident. 
 
 402. Running on bridge. 
 
 403. Duty on backing across corner. 
 
 § 379. General Rules. — In the absence of a statute regulating the 
 manner in which persons should drive when they meet at the junction 
 of two streets, the rule of the common law applies, and each person is 
 to use due and reasonable care to prevent accident, adapted to the cir- 
 cumstances and place.^ 
 
 ^'Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527. 
 
 ^Smith v. Gardner, yy Mass. 418; Garrigan v. Berry, 94 Mass. 84; Norris v. 
 Saxton, 158 Mass. 46, 32 N. E. 9S4; DriscoU v. West End Ry., 159 Mass. 146, 34 
 N. E. 71 ; Thompson's Com. on Negligence, sees. 1289, 1301 ; Hannan v. St. Clair, 
 96 Pac. 822, 44 Col. 134; Schoening v. Young, (Wash.), 104 Pac. 132; Johnson v. 
 Shaw, 204 Mass. 165, 90 N. E. 518. 
 
 293 
 
§ 380 THB LAW OF THE ROAD 
 
 In Norris v. Saxton^ the court say : 
 
 "The law of the road does not regulate the manner in which 
 persons shall drive when they meet at the junction of two 
 streets."^ 
 
 A person driving a vehicle across a street is bound to see that he does 
 not interfere with others in the proper exercise of their rights of pas- 
 sage. The situation is the same in cases where one vehicle is passing 
 along one street, and another is turning into it from a cross or inter- 
 secting street. In all such cases there is no fixed regulation, and the 
 rule of the common law prevails, requiring due care on the part of 
 both.* 
 
 § 380. Duties Reciprocal. — Where cars collide at a corner meet- 
 ing at right angles it cannot be said that it was the duty of either to 
 turn to the right. The duties of the drivers were equal.^ 
 
 § 381. Ordinary Care Sufficient. — Drivers approaching an inter- 
 secting street are bound to use not the highest degree of care but 
 ordinary care.® 
 
 § 382. One reaching Crossing first has Right of Way. — In the 
 absence of some special rule to the contrary the general rule is that 
 the one reaching a street intersection first has the right of way.' 
 It is the duty of one approaching the crossing of a street intersection 
 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.'* This is 
 a rough rule the application of which depends on the circumstances 
 of each case but an examination of the cases shows that the party 
 who runs into another at a corner is commonly held liable. For ex- 
 ample a verdict for the plaintiff is sustained where an automobile 
 runs into a motorcycle at the junction of two streets.' 
 
 2158 Mass. 48, 32 N. E. 954- 
 
 ^See also Buscher I. N. Transp. Co., 106 N. Y. App. Div. 493, 49S; Gregory 
 V. Slaughter, 99 S. W. Repr. 248 (Ky.). 
 
 *Fales V. Dearborn, 18 Mass. 345; Lovejoy v. Dolan, 64 Mass. 495, 497; John- 
 son V. Shaw, 204 Mass. 165, 90 N. E. 518. 
 
 sReynolds v. Pacific Car Co., 75 Wash, i, 134 Pac. 512. 
 
 «Andries v. Everitt, Metzger Flanders Co., 177 Mich, no, 142 N. W. 1067. 
 
 'Elgin Dairy Co. v. Shepherd, Ind. 1915, 108 N. E. 234. 
 
 'aMcClung V. Penn. Taximeter Cab Co., (Penn. 1916), 97 Atl. 694. 
 
 ^Switzer v. Sherwood, 80 Wash. 19, 141 Pac. 181, 9 N. C. C. A. 834. 
 
 294 
 
MEliTING AT CORNERS § 3^3 
 
 So a bicyclist may recover where he is hit from behind by an auto- 
 mobile just after he has turned from a side street." 
 
 § 383. "Crossings." — Where the word "crossings" occurs, it will 
 be understood to mean street crossings and intersections.^" 
 
 § 384. "Intersecting" Streets includes Street ending at Corner." 
 — ^The term "intersecting highway" in the automobile act includes a 
 street which enters but does not cross another.^^ 
 
 Where one of two streets ends at the point where it touches the 
 other this is a "crossing or intersecting of highways" within the mean- 
 ing of the statute. The two streets did intersect each other within 
 the meaning of the law.^^ 
 
 § 385. Speed at Crossing. — Evidence of speed at a crossing is al- 
 ways cogent evidence of negligence and will usually suffice to fix lia- 
 bility. It is a fundamental rule of law and common sense that motor 
 vehicles must be driven slowly on approaching a crossing. The test 
 seems to be whether the driver has control of the situation, whether 
 he is so driving that he can stop if necessary soon enough to avoid an 
 accident. For example if he is driving in the open country where his 
 view is unobstructed he may drive faster than at a corner where he 
 cannot see down the cross street, but he must in either event be pre- 
 pared to avoid any vehicle on the cross street.'^* 
 
 Evidence that an automobile "whirled" into a driveway at a lively 
 rate of speed and forcibly struck the plaintiff before he could get out 
 of the way is sufficient to justify the jury in finding in his favor.^' 
 So where the plaintiff riding a motorcycle is pedaling it at a slow 
 pace and as he passes a wagon standing beside the road is struck by 
 an automobile coming fast out of an alley he is entitled to go to the 
 jury and directing a verdict for the defendant is error.^° 
 
 'Olson V. Hoi way, 152 Wis. i, 139 N. W. 422. 
 
 "Eichman v. Buchheit, 128 Wis. 385, 387, 107 N. W. 325 ; National Casket Co. 
 V. Powar, I2S S. W. Repr. 279 (Ky.) ; Reed v. Martin, 125 N. W. 61 (Mich.). 
 
 i^As to meaning of intersecting way, see further post Appendix B. 
 
 "Manly v. Abernathy, N. C, 83 S. E. 343. 
 
 i^Hayes v. State, 11 Ga. App. 371, 755 E. 523- 
 
 i*A motorcyclist recovered against an automobilist for an accident at an inter- 
 section of two streets when the automobilist was coming at an excessive speed 
 in Picken v. Miller, Ind. 1915, 108 N. E. 968. As to speed limitations at corners, 
 see post § 440. 
 
 I'Hodges V. Chambers, 171 Mo. App. 563, 154 S. W. 429. 
 
 I'Shimoda v. Bundy, 24 Cal. App. 67s, 142, Pac. 109, 9 N. C. C. A. 834. 
 
 295 
 
§ 386 THE I,AW OP THE ROAD 
 
 A verdict for the plaintiff is justified on evidence that he was driv- 
 ing his horse and team when the defendant coming in from a side street 
 at a high speed without blowing his horn ran into him.^' Where the 
 only evidence of negligence related to the speed of the automobile an 
 instruction that the driver in approaching a curve shall have his ma- 
 chine under control and shall not exceed eight miles an hour is not error 
 where the evidence raises no other question of negligence. This is not 
 objectionable as declaring defendant not liable if his speed was less than 
 eight miles an hour.^^ 
 
 It cannot be said that a speed of eight miles an hour was within the 
 exercise of due care when the automobile was approaching a crowded 
 crossing where an electric car was stopping/'' 
 
 § 386. Speed where View Obstructed. — Turning close at a corner 
 at a high rate of speed where the view is obstructed is negligence, 
 especially where the turning is on the wrong side of the street.^" 
 
 The evidence raises a question for the jury where the plaintiff testi- 
 fies that as he passed a corner where his view was obstructed he was 
 hit by defendant's automobile coming up a cross street at thirty to 
 'thirty-five miles an hour.^^ 
 
 Where a wagon obscures the view of an automobilist at a street 
 crossing he is bound to use extraordinary care.^^ 
 
 § 387. Looking Straight Ahead. — A driver may be found liable 
 on evidence that he looked straight ahead as he approached an inter- 
 secting street where boys were coasting at night, did not heed their 
 warning cries and made no effort to reduce speed until the instant of 
 collision with the coasters.^^ But one riding a horse down a street is not 
 bound as matter of law to look up or down a side street before crossing. 
 This is a question for the jury.^* 
 
 So a chauffeur at a crowded corner is not negligent in looking ahead 
 nor in failing to see the plaintiff's car coming in from a side street, 
 
 I'Scragg V. Sallee, 24 Cal. App. 133, 144 Pac. 706. 
 isWade v. Brents, 161 Ky. 607, 171 S. W. 188. 
 
 isAdaras v. Averill, 87 Vt. 230, 88 Atl. 738, 4 N. C. C. A. 9, 8 N. C. C. A. 583- 
 soCalahan v. Moll, 160 Wis. 523, 162 N. W. 179, 152 N. W. 179. 
 2iAndries v. Everitt, Metzger Flanders Co., 177 Mich, no, 142 N. W. 1067. 
 22Deputy V. Kimmel, 73 W. Va. 595, 80 S. E. 919, Si L,. R. A. N. S. 989, 8 N. 
 C. C. A. 369. 
 2sRowe V. Hammond, 172 Mo. App. 203, 157 S. W. 880, 5 N. C. C. A. 127. 
 24Studer V. Plumlee, 130 Tenn. 517, 172 S. W. 305. See ante § 340. 
 
 296 
 
MEETING AT CORNERS § S^S 
 
 poorly lighted.^^ Where the plaintiff, riding a bicycle, is hit by an 
 automobile turning in from his right with lights lit on the inside of the 
 corner he is not negligent necessarily. The lights were not in front of 
 him but were only turned on him as the automobile turned around and 
 the plaintiff's attention was properly directed down the street.^" 
 
 § 388. Turning suddenly from Centre of Street. — It is negligent 
 for one driving near the centre of the street suddenly to turn to the 
 right down an alley on account of the danger of "pocketing" some 
 vehicle following. A breach of an ordinance requiring vehicles to 
 keep close to the right hand curb is plainly negligence.^' 
 
 § 389. Where Driver's Companion Looks before Turning. — Un- 
 der a city ordinance requiring a driver before turning round to look 
 behind him this is complied with where one sitting with the driver 
 looks behind and then directs the driver to turn.^^ 
 
 § 390. Signal before Turning. — The plaintiff driving a team is not 
 negligent as a matter of law in turning to his right up a private road 
 without looking behind when he extends his whip to one side before 
 doing so and is struck by an automobile coming from behind. He 
 must give some attention to his horse.^° Evidence may be admitted of 
 a custom among drivers to give a warning signal if they desired to stop 
 or turn. This may bear on the defendant's want of care.'" Traffic 
 rules often require such signal to be given. 
 
 § 391. Signal where Intersecting Street Closed. — An ordinance 
 requiring drivers of automobiles to sound a signal on approaching an 
 intersecting street does not apply where the intersecting street is closed 
 to travel.'^ 
 
 § 392. Violation of Traffic Rules. — ^Where the defendant in turn- 
 ing a corner violated the law if that violation had a causal relation to 
 the injury inflicted on a pedestrian then the plaintiff has a prima facie 
 case. The burden is on the defendant to show that he was not guilty 
 of negligence.^^ 
 
 ''^Gittings V. Schenuit, 122 Md. 282, 90 Atl. 51. 
 
 26Anderson v. Sterritt, 95 Kan. 483, 148 Pac. 63s, 9 N. C. C. A. 836. 
 2'Withey v. Fowler Co., 164 Iowa 377, 14S N. W. 923. 
 ^^Armstrong v. Lounsberry, Minn., 1915, 151 N. W. 542. 
 29Daly V. Case, N. J., 95 Atl. 973- 
 soO'Neil V. Potts, 130 Minn. 353, 153 N. W. 856. 
 ^ifiurger v. Taxicab Motor Co., 66 Wash. 676, 123 Pac. 319. 
 32Grier v. Samuel, Del. Super. Ct., 85 Atl. 759, violation of law, see post, § 
 107s, et seq. 
 
 297 
 
§ 393 THE I<AW OF THE ROAD 
 
 In a recent case a motorcyclist recovered against an automobilist 
 wliere the automobile was claimed to have swung across the wrong 
 side of the street in turning in from an intersecting street.'^ 
 
 §. 393- Vehicle on Left Side of Street.— It is negligence for the 
 defendant to drive on the left hand side of a street when the plaintiff 
 turns a corner and runs into him and the accident would not have 
 happened if he had driven in the right hand side and this negUgence 
 continued down to the time of the accident and was its proximate 
 cause.'* 
 
 An instruction is erroneous that driving on the left hand side of the 
 street is not necessarily negligent where two vehicles meet at the inter- 
 section of two streets, as the law applies to corners as elsewhere.'" 
 
 But where a collision occurs at intersecting streets the fact that the 
 plaintiff was to the left of the center of the street is not a bar to re- 
 covery as the proximate cause of the collision is a mixed question of 
 law and fact. The violation of the ordinance may not be the proximate 
 cause of the accident."^ 
 
 § 394. Duty to Hug Curb in Turning to Right. — Where an ordi- 
 nance requires drivers to hug the curb in turning to the right it is no 
 defense to a failure to do so that this space is temporarily occupied by 
 street cars and pedestrians. The purpose of the ordinance was to 
 compel drivers to follow certain paths and minimize the danger of acci- 
 dents." 
 
 If an automobile driver in turning to the right runs his machine up 
 on to the left side of the intersecting street when the statute requires 
 him to hug the curb he is liable.'* 
 
 § 395- "Curb" applied to Fence in Street. — Where a city ordi- 
 nance requires motor vehicles on turning a corner to keep a certain 
 distance from the curb and there is at the corner a pile of building 
 materials surrounded by a fence jutting out into the street, the fence 
 
 s^Mobin V. Mark, 113 Minn. 190, 129 N W. 383, 41 L. R. A. N. S. 346. 
 siBaillargeon v. Myers, 27 Cal. App. 187, 149 Pac. 378 ; Schoening v. Young, 55 
 Wash. 90, 104 Pac. 132. 
 36johnson v. Heitman, 88 Wash. 595, 153 Pac. 331. 
 ''Reynolds v. Pacific Car Co., 75 Wash, i, 134 Pac. 512. 
 '^Oshkosh V. Campbell, 151 Wis. 567, 139 N. W. 316. 
 
 At a street intersection the driver is bound- to keep to the right in turning. 
 Reitz V. Hodgkins (Ind. 1916), 112 N. E. 386. 
 »8MoHn V. Mark, 113 Minn. 190, 129 N. W. 383. 
 
 298 
 
MEETING AT CORNERS § 39^ 
 
 is the curb. The word "curb" was used to make one of the boundaries 
 of the path taken by foot passengers and not in a technical sense.'' 
 
 § 396. Turning up One Way Street. — A plaintiff is guilty of con- 
 tributory negligence in travelling round a corner in a private road at 
 a speed of twenty to twenty-five miles an hour where his view was 
 obstructed although there was a rule and custom that vehicles should 
 not use this roadway in the opposite direction where he knew that the 
 rule was frequently violated.*" 
 
 § 397. Cutting Corner in Turning to Left. — Where an automobile 
 coming out of one street, turns "sharply to the left hand," in other lan- 
 guage "cuts" the corner, the motorist fails in his duty and is therefore 
 guilty of negligence.*^ So a motorcyclist turning to the left of an inter- 
 secting street and cutting the corner cannot recover where a collision 
 occurs as a consequence.*^ 
 
 Recovery was affirmed on evidence that the defendant was driving 
 his automobile unlawfully at a high rate of speed behind the other ma- 
 chines on the wrong side of the street and turning into a side street 
 as close as possible to the left hand side of said street and could not 
 be seen by plaintiff until after the other machines had turned too late 
 to avoid a collision with the plaintiff on his bicycle.*' 
 
 A motorcyclist may recover where an automobilist coming in the op- 
 posite direction turns suddenly across his path up an intersecting 
 street.** 
 
 The plaintiff's due care is a question for the jury when proceeding 
 at a slow pace from a side street when he turned the corner and the car 
 was seen it was too near to admit of his going in front of it and the 
 jury may find he acted prudently in attempting to turn between the 
 car and the sidewalk.*' 
 
 It is negligence for the driver of a large automobile to turn to his 
 left on an intersecting street close to the curb, hitting a motorcyclist 
 riding in the opposite direction.*' 
 
 88Domk« V. Gunning, 62 Wash. 629, 114 Pac. 436. 
 
 *oWheeler v. Hallj 157 Mo. App. 38, 137 S. W. 63. 
 
 *ilrwin V. Judge, 81 Conn. 492, 498, igo8. 
 
 *2Scott V. Dow, 162 Mich. 636, 127 N. W. 712. 
 
 *3Holden v. Hadley, 180 Mich 568, 147 N. W. 482. 
 
 **Goodman v. Bauer, (Ind. 1916), iii N. E. 31S. 
 
 *=Robinson v. Springfield St. Ry. Co., 211 Mass. 483; 98 N. E. 576. 
 
 *8Reitz V. Hodgkins, (Ind. 1916), 112 N. E. 386. 
 
 299 
 
§ 39^ THE I.AW OF THB ROAD 
 
 § 398. Right to assume that other Car is travelling in Proper 
 Course. — A boy on a bicycle turning in from a side street where the 
 view is obstructed has a right to presume that the defendant's automo- 
 bile will observe the law and keep near the right hand curb.*' A 
 motorcyclist who sees a truck approaching on its right hand side at 
 an intersecting street is entitled to assume that the truck will continue 
 in obedience to traffic rules on its right hand side of the street and is 
 not required to be alert and watch for violation of them.*^ 
 
 § 399. Right to Assume other Car is moving at Lawful Speed. — 
 
 Where the plaintiff approaches a crossing at a legal rate of speed and 
 sees the defendant approaching at right angles on the intersecting 
 street at such distance that if both drivers were observing the law 
 there would be no collision then the plaintiff is justified in going on. 
 He has a right to presume that the defendant is observing the law 
 unless he sees or ought to see that the defendant is approaching so 
 fast that a collision is inevitable unless he himself stops.*® 
 
 Under an ordinance giving the driver who approaches an intersecting 
 corner from the right the right of way a driver who on approaching 
 a corner at a lawful speed observes another approaching on the inter- 
 secting street but two or three times as far away is not bound to stop 
 as he has the right to assume that the other driver is travelling at a 
 lawful speed and that the two vehicles are not travelling at speeds 
 which will bring them "simultaneously to the intersection." The ordi- 
 nance does not excuse the driver on the right from using reasonable 
 care to avoid injuring others. °" 
 
 § 400. Duty to Stop. — Where an automobile and a street car are 
 approaching each other at a crossing at right angles and will reach 
 the crossing at the same time so that one must slow down or stop, if 
 either of them saw or could have seen by the use of reasonable care that 
 the other intended to cross first and that by reason thereof a collision 
 was imminent it was his duty to stop if necessary in order to avoid a 
 collision and not so to do is negligence notwithstanding that the other 
 
 *7Hiscock V. Phinney, 81 Wash. 117, 142 Pac. 461, 8 N. C. C. A. 382. 
 *8Elgin Dairy Co. v. Shepherd, Ind. 1915, ic^ N. E. 234. 
 *!'Pilgrim V. Brown, 168 Iowa 177, 150 N. W. I. 
 eopilgrim v. Brown, 168 Iowa 177, 150 N. W. i. 
 
 300 
 
MEETING AT CORNERS § 4OI 
 
 in attempting to cross in front of him may also have been guilty of 
 negligence.^^ 
 
 But it is not the duty of one to stop his car when he sees another 
 car approaching rapidly on an intersecting street where the other car 
 has ample room to pass in the rear or elsewhere. °^ 
 
 A motorcyclist was allowed to recover when hit by an automobile 
 coming down an intersecting street at over twenty miles an hour when 
 the plaintiff had stopped to avoid an accident." But evidence that the 
 defendant erred in estimating that he could cross in front of the plain- 
 tiff's horses is insufficient where the plaintiff continues on his course 
 without slowing down.°* 
 
 § 401. When One may Speed up to avoid Accident. — Where a 
 collision seems imminent between two cars coming at right angles it 
 is proper for one to turn to the left to pass in the rear of the other and 
 for the other to put on additional power is an effort to get out of the 
 way." 
 
 Where plaintiff, while driving across an intersecting street discovers 
 another car approaching rapidly from this street he is compelled to 
 decide instantly whether he should stop or try to pass ahead of the 
 other car and he is not bound to anticipate that if he did go ahead the 
 other car will turn to the right across his path.^° 
 
 § 402. Running on Bridge. — Negligence was found in running an 
 automobile from a turn on to a bridge being repaired where the floor 
 was loose and hitting the side of the bridge injuring the plaintiff, a 
 passenger."^ 
 
 § 403. Duty on Backing across Corner. — The plaintiff on a motor- 
 cycle was allowed to go to the jury where the defendant has his hat 
 blown off at a corner and continues across the intersection and then 
 reverses and backs diagonally across the intersection looking behind him 
 to the left side of his machine and hits the plaintiff coming round the 
 
 BiPascagoula St. Ry. Co. v. McEachern, Miss. 1916, 69 So. 183. 
 
 s^Brown v. Mitts, 187 Mich. 469, 1S3 N. W. 714. 
 
 s^Anderson v. Kinnear, 80 Wash. 638, 141 Pac. 1151. 
 
 s^Barnett v. Anheuser Bvisch Agency, 140 N. Y. S. 1029 (1913). 
 
 s^Schultz V. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. N. S. 403- 
 
 ^Tilgrim v. Brown, 168 Iowa 177, 150 N. W. I. 
 
 s^Fairchild v. Fleming, 125 Minn. 431, 147 N. W. 434. 
 
 301 
 
§ 404 THE IvAW OF THE ROAD 
 
 corner on his motorcycle. When the defendant reversed he was then 
 moving on the wrong side of the street.^' 
 
 V. VeHici,Es Standing in Stebbt 
 
 § 404. Standing vehicle. 
 
 405. Standing carriages and cabs. 
 
 406. Leaving vehicle unattended. 
 
 407. Leaving incompetent person in charge. 
 
 § 404. Standing vehicle. — ^^The common law provision concerning 
 due care also prevails where a vehicle is standing, and a moving ve- 
 hicle runs into it.^ The presumption is that it is the fault of the ve- 
 hicle in motion if the standing vehicle is in a proper place, i. e., where 
 it has a right to be.^ 
 
 In Odom v. Schmidt^ Mr. Justice Blanchard says : 
 
 "It was negligence to drive into the surrey standing still on 
 the side of the roadway when there was ample room to pass. 
 If there were not room to pass, it was the duty of the driver 
 of the float to stop and call out to the driver of the surrey to 
 move up out of the way. We do not find it was contributory 
 negligence on part of plaintiff to sit. in the surrey stationed 
 close to the side of the roadway, when sufficient room was left 
 for the safe and easy passage of other vehicles." 
 
 To start up suddenly an automobile which has been standing by the 
 curb, and particularly to move it backward, without giving warning, 
 is negligence which might be gross.* 
 
 Obstructing the street with a vehicle standing crosswise thereto, 
 backed up, or head on, to the curbstone, in violation of a city ordi- 
 nance, or standing by the side of the road in such position as to obstruct 
 traffic, is evidence of negligence to be taken into consideration by the 
 jury with other attendant facts, but it is not of itself conclusive evi- 
 dence against the offender." 
 
 eswilliams v. Kansas City, Mo. App., 177 S. W. 783. 
 
 iLane v. Bryant, 75 Mass. 245. 
 
 ''Amoskeag, etc., v. The John Adams, i Fed. Cases No. 338, p. 795. 
 
 '52 La. Ann. 2131. 
 
 *Shamp V. Lambert, 121 S. W. Repr. 770 (Mo.). 
 
 ^Steele v. Burkhardt, 104 Mass. 59, 62; Greenwood v. Callahan, iii Mass. 
 298; Newcomb v. Boston Prot. Dept., 146 Mass. S99. 16 N. E. SSS; Harris v. 
 Mobbs, 3 L. R. Exch. Div. (41 Vict.), 273; Denny v. Strauss, 109 N. Y. Supp. 26. 
 
 302 
 
VBHICI^ES STANDING IN STREET § 405 
 
 Nor is there any doubt that a traveller on the highway may stop, 
 alight from his vehicle and employ himself w^hile out of his vehicle, in 
 acts which have no connection with his journey or its purpose, but he 
 must use due care that no injury happen to others in consequence." 
 
 On the other hand, anyone who permits his vehicle to stand on the 
 highway for such a length of time as to obstruct traffic unnecessarily, 
 is the author of a nuisance. To allow it to stand for a reasonable 
 length of time is not unlawful, but it may nevertheless, be left stand- 
 ing in a place or under circumstances which will afford evidence of 
 negligence.' 
 
 The defendant is negligent in running his automobile into a horse 
 and team standing lighted on the right hand side of the street facing 
 him. The doctrine of res ipsa loquitur applies as the defendant has 
 full control of the automobile.' Where the defendant's team is negli- 
 gently left standing diagonally across the street, forcing the plaintiff to 
 run over a hole in the road to pass, the questions of the defendant's neg- 
 ligence and the plaintiff's due care are for the jury.' 
 
 § 405. Standing carriages and cabs. — ^Vehicles used for the car- 
 riage of persons either for pleasure or business, whether private or 
 open to the public for hire, while awaiting their passengers or for pat- 
 ronage, frequently offer inconvenience to traffic often amounting to 
 actual obstruction. In most municipalities the matter is subject to city 
 ordinance or police regulation, particularly in regard to provision 
 for public cabstands. Not infrequently it applies also to the standing 
 of private carriages, while waiting for the owner or his guests. The 
 question in all such cases is whether the particular use of the street by 
 the vehicles at the time is a reasonable use, and the question is one of 
 fact dependent upon all the circumstances of the case. What would 
 be a reasonable use in such cases in a country town would be entirely 
 unreasonable in a busy city thoroughfare. In Gassenheimer v. Dist. of 
 Columbia^" an automobile licensed as a public vehicle, and used for 
 hire for the benefit of guests of a hotel, was allowed to stand in front 
 
 *Britton v. Cunningham, 107 Mass. 349; Rogers v. Mann, 70 Atl. ioS7°'(R. I.) ; 
 Delfs V. Dunshee, 122 N. W. 236 (Iowa), 143 Iowa 381. 
 
 'Thompson, Com. on Negligence, 2d ed., sec. 1296. 
 
 'Bauhofer v. Crawford, Cal., 117 Pac. 931. See Harris v. Burns, 133 N. Y. S. 
 418 (N. Y. Sup.). 
 
 ^Manion v. Loomis Sanatorium, 162 App. Div. 421, 147 N. Y. S. 761. 
 
 1025 App. D. C. 179. 
 
 303 
 
§ 4o6 THE LAW 01? THE ROAD 
 
 of the hotel for passengers during a period of two hours. The ques- 
 tion was whether under the circumstances there was an obstruction of 
 traffic contrary to the city ordinance. Mr. Justice Duell remarked that 
 the courts had repeatedly recognized the rights of owners of land 
 abutting on a public highway to encroach thereon to a limited extent 
 and for a temporary purpose, and in conclusion said : 
 
 "We are of the opinion that proof that an automobile stood 
 in front of a hotel for two hours is not sufficient to sustain a 
 conviction that the free passageway of a street has been unnec- 
 essarily obstructed and traffic thereon hindered and delayed."^^ 
 
 § 406. Leaving vehicle unattended. — While no doubt there is an 
 absence of exact parallel between the circumstances of leaving a horse 
 unhitched and a motor vehicle unattended on the highway, still there 
 is a sufficient analogy to render the decisions in the former class of 
 cases indicative of the responsibilities which are fastened on operators 
 of the latter class of vehicles. The Massachusetts statute^^ provides 
 that: 
 
 "No person having control or charge of a motor vehicle shall 
 allow such vehicle to stand in any public street or way and re- 
 main unattended without first locking or making it fast or ef- 
 fectively setting the brakes thereon, and stopping the motor of 
 said vehicle." 
 
 The general penalties provided by section 18 of the same act are 
 applicable to violations of the provision just recited." In civil actions, 
 however, in a case where a vehicle is left unattended in a street in vio- 
 lation of a city ordinance or regulation, like other violations of similar 
 character, it is not of itself conclusive evidence of negligence, but is a 
 fact to be taken into consideration by the jury.^* 
 
 "See also Denney v. Strauss, 109 N. Y. Supp. 26, 1908; Lynch v. Robert P. 
 Murphy Hotel Co., ns N. Y. 465, 1909. In the latter case the court remarks 
 that a cab stand is a mere license or privilege and is not exclusive. 
 
 i2Act of 1909, chap. ,534, sec. 13. 
 
 I'See Southworth v. R. R., 105 Mass. 342. 
 
 "Kearnes v. Sowden, 104 Mass. 63; Steele v. Burkhardt, 104 Mass 59, 62; 
 Monroe v. Hartford St. Ry., 76 Conn. 201, 206, 56 Atl. 498 ; Studebaker Bros. v. 
 Carter, in S. W. Repr. (Tex.), 1086. 
 
 304 
 
vshici,es standing in street § 407 
 
 upon general principles of law, when a person in charge of a motor 
 vehicle leaves it unattended upon the street, it is his duty to take every 
 reasonable precaution to prevent its starting, or being started, during 
 his absence. In Herman v. Schultz" Mr. Justice Gildersleeve says : 
 
 "It was not the duty of the defendant to chain the machine 
 to a post, or in some way fasten it so that it was impossible for 
 it to be started by the act of a third party. The law did not im- 
 pose upon the defendant a degree of care that made the start- 
 ing of the machine impossible."^* 
 
 And the driver on leaving it is not bound to take precautions against 
 inteference by third persons,^'' and the rule of res ipsa loquitur cannot 
 be invoked to hold the driver liable where no negligence is shown 
 against him by direct evidence.^' 
 
 It is not per se negligent to leave a motor truck unattended in a 
 public street but it is the duty of one who leaves it there to use such 
 care as a person of ordinary prudence would exercise under the cir- 
 cumstances. The fact that a truck starts after being left unattended 
 without the intervening act of a third party is evidence of negligence.^' 
 
 § 407. Leaving incompetent person in charge. — The operator is 
 also responsible for any accident which may occur "if he leave the en- 
 gine in charge of an incompetent person."^" 
 
 VI. Travewng at Night or When Vision Obscured. 
 
 § 408. Care while traveling at night. 
 
 409. Purpose of lights. Driver responsible. 
 
 410. Time of lighting lights. 
 
 411. Lights on standing automobile. 
 
 412. Dashboard is front of automobile. 
 
 413. Driving without lights. 
 
 414. Insufficient lights. 
 4x5. Only one light. 
 
 "84 N. Y. Supp. 292, Vol. 118. 
 
 I'The principles involved in Berman v. Schultz, are quoted by the Court of 
 Appeals of Georgia in Lewis v. Amorous, 3 Ga. App. 50, 56, 1907, 59 S. W. 338. 
 
 "Keber v. Central Brewing Co. of New York, 150 N. Y. S. 986 (N. Y. Sup.). 
 
 "Keber v. Central Brewing Co. of New York, 150 N. Y. S. 986 (N. Y. Sup.). 
 
 ^'American Express Co. v. Terry, 126 Md. 254, 94 Atl. 1026. 
 
 2°Wharton on Homicide, 3d ed., sec. 466; Reg. v. towe, 4 Cox C. C. 449 
 (Eng.) . See Mass. Revised Laws, chap. 207, sec. 31. 
 
 305 
 20 
 
§ 408 THE LAW off THE ROAD 
 
 416. Hitting unlighted vehicle. 
 
 417. Unlighted bicycle. 
 
 418. Lights on curve. 
 
 419. Blinded by approaching headlight. 
 
 420. Traveling in a tnist or fog. 
 
 421. Driver blinded by sun. 
 
 422. Windshield blurred by rain. 
 
 § 408. Care while traveling at night. — "It is not as matter of law, 
 negligence for one to travel, even in a dark night, over a road with 
 which he is wholly unacquainted, and which is without light or guard. 
 In walking or driving at night, however, the exercise of ordinary care 
 requires greater vigilance than in the day, particularly in a strange 
 locality; and the question of care in such case is for the jury."^ 
 
 It is negligent "to run an automobile without lights sufficient to en- 
 able the driver to see objects ahead of him, lights not being required 
 alone to protect others."^ A driver is guilty of gross negligence justi- 
 fying punitive damages when he drives fast at night without lights.' 
 
 § 409. Purpose of lights — driver responsible. — ^The purpose of 
 lights on an automobile is not only to enable a person approaching to 
 see it but also to enable the driver to see a reasonable distance ahead. 
 This is so although the statute does not provide the degree of strength 
 of the lights but simply requires them to be visible for a reasonable 
 distance.* 
 
 Under a statute requiring lights the legislative intent is clearly to 
 prohibit the use of unlighted motor vehicles. That which is prohibited 
 is the use and therefore the user or driver is liable for the penalty.' 
 
 § 410. Time of lighting lights. — State laws commonly require the 
 lighting of lights from one hour after sunset to one hour before sun- 
 rise. See Appendices A, D, 1^. 
 
 ^Shearman & Redf. on Negligence, Sth ed., sec. 377; Standard Oil Co. v. 
 Hartman, 102 Md. 563, 572, 62 Atl. 80s; State v. Myette, 76 Atl. 664 (R. I.), 30 
 R. I. SS6. 
 
 ^Lauson v. Fond Du Lac (Town), 141 Wis. 57, 123 N. W. 629; Fenn v. Clark, 
 II Cal. App. 79, 103 Pac. 944. 
 
 »Buford V. Hopewell, 140 Ky. 666, 131 S. W. 502. 
 
 *Giles V. Ternes, 93 Kan. 435, 143 Pac. 491; Giles v. Ternes, 93 Kan. 140. 
 
 143 Pa. 491. is followed in an action by the wife. Ternes v. Giles, 93 Kan. 43S, 
 
 144 Pac. 1014. 
 
 "State v. Myette, 30 R. I. 556, 78 Atl. 664. 
 
 306 
 
TEAVEUNG AT NIGHT §4" 
 
 The court will take judicial notice of the time of sunset and will 
 instruct as to the use of lights.' Where it is claimed that the defendant 
 carried no lights he is entitled to an instruction as to the time when he 
 was bound to light them/ Where there is no evidence that when the 
 plaintiff ran against a stump it was so dark he could not' see it it is 
 error to charge that the fact that he had no lights bars him of recovery.' 
 
 § 411. Lights on standing automobile. — Whether lights need be 
 shown on a standing automobile depends on the language of the statute. 
 For example: an ordinance requiring the display of lights on a 
 car "operated or driven" in the streets and requiring a rear light to 
 illuminate the number plate "in the direction from which the motor 
 vehicle is proceeding" does not apply to a car standing." 
 
 But on the other hand a statute requiring lights on an automobile 
 while "driven" after dark on the streets requires lights while it is 
 standing. An automobile does not cease to be "driven" when left 
 standing. The driver does not cease to be a driver when he stops his 
 machine.^" 
 
 § 412. Dashboard is "front" of automobile. — ^A statute requiring 
 the display of lights at the front is satisfied by fastening them to the 
 dashboard.^^ 
 
 § 413. Driving without lights. — Driving at night without lights as 
 required by statute is negligence per se}'' It is negligence for one to 
 drive an automobile at night without lights or sounding a horn in a city 
 street at fifteen miles an hour," or to drive at night without lights a 
 machine which makes loud and explosive noises.^* 
 
 Evidence that the defendant was driving at night looking to one side 
 without any front lights and ran over the plaintiff a pedestrian and 
 felt something dragging when he stopped is sufficient evidence of his 
 
 'Everart v. Fischer, 75 Oregon 316, 14S Pac. 33. 
 
 'Turner v. Bennett, 161 Iowa 379, 142 S. W. 999. 
 
 ^Wheeler v. Flatonia, Tex. Civ. App., 155 S. W. 951. 
 
 'Harlan, City of, v. Kraschel, Iowa , 146 N. W. 463. 
 
 i"Joquith V. Worden, 73 Wash. 349, 132 Pac. 33, 48 L. R. A. (N. S.) 827. 
 
 I'^State V. Read, 162 Iowa 572, 144 N. W. 310. 
 
 i^Sheppard v. Johnson, 11 Ga. App. 280, 75 S. E. 348; injuries caused by 
 operating automobiles without lights in violation of statute, 4 N. C. C. A. 21 
 note. 
 
 isjohnson v. Irvin, 130 Minn. 134, 153 N. W. 267. 
 
 i*Gipe V. Lynch, 155 Iowa 627, 136 N. W. 714. 
 
 307 
 
§ 4^4 THS I,AW OF THE KOAD 
 
 negligence.^" The fact that it is so dark that it is possible to see a ve- 
 hicle unequipped with lights only a short distance ahead calls for more 
 than the ordinary care in driving.^* 
 
 The absence of lights on an automobile may have no causal connec- 
 tion wtih the accident where the plaintiff's horses were frightened at 
 the sight of the automobile and no collision occurred. In such case the 
 absence of lights as provided by law would not render the detendant 
 negligent.^' 
 
 § 414. Insufficient lights. — Evidence that defendant's lights were 
 dim is competent as bearing on his negligence where the lights were 
 not what is required by law.^^ 
 
 Pedestrians are not as matter of law negligent in looking at night and 
 not seeing an automobile approaching where there is evidence that the 
 automobile only carried dirty kerosene side lights which were not 
 noticeable.^^ Where the statute only requires the use of two side lights 
 at night an instruction is correct that it is the duty of one driving an 
 automobile at night to have lights in order that he may be seen by others 
 on the road and that he can see the road ahead and avoid collision with 
 others. This is only ordinary care.^" 
 
 § 415. Only one light. — The fact that the plaintiff's automobile 
 carried only one light while the statute requires two is not decisive 
 against his right to recover for an accident at night but is some evidence 
 that the defendant was not negligent."^ 
 
 § 416. Hitting unlighted vehicle. — An automobile driver may be 
 negligent in running at night into an unlighted horse and team driven 
 on the proper side of the road," or stopping temporarily just beyond a 
 bright arc light^' or on a curve.^* 
 
 § 417. Unlighted bicycle. — Where the defendant is driving in the 
 opposite direction from the plaintiff on his bicycle and turns to his left 
 
 isMeier v. Wagner, 1915, Cal. App. 797, 150 Pac. 197. 
 
 I'Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319. 
 
 I'Turner v. Bennett, 161 Iowa 379, 142 N. W. 999. 
 
 isBoumg V. Dubois, 169 Mich. 422, 135 N. W. 322. 
 
 I'Tooker v. Perkins, 86 Wash. 567, 150 Pac. 1138. 
 
 zoCurran v. Lorch, 247 Pa. 429, 93 Atl. 492. 
 
 "iQittings v. Schenuit, 122 Md. 282, 90 Atl. 51. 
 
 22Decou v. Dexheimer, 73 Atl. 49 (N. J. ), N. J. Sup. 
 
 28Rogers v. Mann, 70 Atl. Repr. 1057 (R. I.). 
 
 s^Lorenz v. Tisdale, 127 N. Y. App. Div. 433, in N. Y. Supp. 173. 
 
 308 
 
TRAVELING AT NIGHT § 418 
 
 to pass down a side street the verdict should be for the defendant 
 where it appears that the plaintiff might without danger have gone to 
 the rear of the automobile instead of in front of it, especially where the 
 accident occurs at night and the plaintiff carried no light.^° 
 
 § 418. Lights on curve. — Drivers of motor vehicles must allow for 
 the fact that their headlights will not illuminate the road around a curve 
 and they must therefore use particular caution at curves.^' 
 
 It is contributory negligence for one to drive at night so fast that he 
 does not see obstructions on the road. The fact that the obstructions 
 were on the inside of a curve where his own light did not shine in the 
 way he was going is no excuse but is a greater reason why he should 
 have slowed up or stopped.^'' 
 
 The fact that headlights are shining not on to the road but into 
 bushes beside the road is notice of a curve in the road.^^^ 
 
 § 419. Blinded by approaching headlight. — It is negligence to 
 drive on when one's eyes are blinded by the headlight of an approaching 
 vehicle/* and he is negligent in proceeding even at a speed of ten to 
 thirteen miles an hour/' but the driver in that case should stop.'" 
 
 § 420. Traveling in a mist or fog. — The same principle applies in 
 cases where rain, mist or fog prevail, to obscure the outlook,'^ where the 
 driver of an automobile is bound to exercise proper care and may be 
 found liable for the results of a collision.'^ 
 
 25Robichaud v. Spence, 112 Maine 13, 430, 90 Atl. 430. 
 
 2* As the automobile was lighted, the light should have enabled the driver to 
 see the plaintiff in the road in season to stop before hitting him unless the auto- 
 mobile was then rounding a curve, in which case the lights would have been of 
 little assistance. Marsh v. Boyden, 33 R. I. 519, 82 Atl. 393, 40 L. R. A. N. S. 582. 
 
 ^^Knoxville Ry., etc., Co. v. Vangilder, 132 Tenn. 487, 178 S. W. 1117. 
 
 2'aWentworth v. Waterbury, Vt. 1916, 96 Atl. 334. 
 
 2*Jaquith v. Worden, 73 Wash. 349, 132 Pac. 33, 48 L. R. A. (N. S.) 837. 
 For a case where the driver of a horse is blinded by headlights and he is not 
 found negligent where he turns to one side and waits for the automobile to pass, 
 see Chandler v. Matheson Co., 208 Mass. 95, 569 N. E. 103. Rules forbidding 
 glaring headlights see Appendix D. 
 
 ^sPietsch V. McCarthy, 159 Wis. 251, 150 N. W. I. 
 
 '"Knoxville Ry. Co. v. Vangilder, 132 Tenn. 487, 178 S. W. 1117. 
 
 '^McManus v. Wolverton, 19 N. Y. Supp. 546; Angell v. I^ewis, 20 R. I. 391; 
 Lauson V. Fond Du Lac (Town), 141 Wis. 57, 78 Atl. 123 N. W. 629. 
 
 s^McFern v. Gardner, 121 Mo. App. i, 97 S. W. 972. 
 
 309 
 
§ 421 tHE LAW OTP THE EOAb 
 
 § 421. Driver blinded by sun. — A driver is negligent who while 
 driving at thirty miles an hour has his eyes blinded by the glare of the 
 sun and takes his hand from the wheel to adjust his cap and runs off 
 the road. He should have stopped his car first.^^ 
 
 § 422. Windshield blurred by rain. — It may be an element of 
 negligence to drive at night in the rain behind a windshield blurred by 
 rain.'* 
 
 The driver is negligent when driving in the rain he cannot see through 
 his windshield and looks around it and sees a pedestrian thirty feet 
 away and sounds his horn and does not stop and the pedestrian stops 
 and the driver does not see him again till he is upon him.'' 
 
 330'Beirne v. Stafford, 87 Conn. 354, 87 Atl. 743, 46 L. R. A. N. S. 1183, 7 N. 
 C. C. A. 858. 
 3*Russell V. Electric Garage Co., go Neb. 719, 134 N. W. 253. 
 35Chase V. Seattle Taxicab & Transfer Co., 78 Wash. 537, 139 Pac. 499. 
 
 3TO 
 
CHAPTER XIX 
 
 SPEED LIMITATIONS 
 
 S 423. In general. 
 
 424. Speed at common law and under the statute. 
 424A. Motive or Intent. 
 
 425. Safety of the public the test. 
 
 426. Must prove that on public road. 
 
 427. Need not prove individuals endangered. 
 
 428. Must be reasonable speed. 
 
 429. Speed mania. 
 
 430. Speed "reasonable and proper" too vague. 
 
 431. Other vague limitations. 
 
 432. Purpose of specific speed limitations. 
 
 433. Distance covered at prohibited speed. 
 
 434. Average speed limit. 
 
 435. Specific speed limitations subordinate to rule of reasonable rate. 
 
 436. Speed may be unreasonable though within maximum limit. 
 
 437. Defence of not exceeding speed limitations. 
 
 438. Meaning of the expression "business part" of a city or town. 
 
 439. Operation where view is obstructed. 
 
 440. Operation at intersecting ways. 
 
 441. Speed on passing. 
 
 442. Concurring penalties. 
 
 443. Liability of owners to penalty for overspeeding. 
 
 444. Liability of passenger. 
 443. Remedies. 
 
 446. All are principals in misdemeanors. 
 
 § 423 — In generaL — ^An examination of the statutes of the states 
 having general motor vehicle laws, discloses that in almost all of them, 
 provision is made limiting the speed at which such vehicles shall be 
 operated on the highways. In the very few states where no specific 
 statutory enactments appear, the power of regulation is vested in the 
 county or municipal authorities in the several localities. No attempt 
 will be made to consider such ordinances, by-laws or regulations, nor, 
 at this time, the power of local authorities to make them. Judicial deci- 
 sions having reference thereto, will, however, be treated as in point. 
 
 3" 
 
§ 424 SPBED I^IMITATIONS 
 
 § 424. Speed at common law and under the statute. — At common 
 law, there is no limit to the speed at which one may travel on the pub- 
 lic ways, the only qualification to the rapidity or manner of driving 
 being that the traveler shall not so use his right in these respects as to 
 deprive some one else of the exercise of his equal and similar right, or 
 so as to inflict injury upon him.^ Hence from the single standpoint 
 of negligence stripped of all attendant circumstances of danger to 
 others and of statutory prohibition, a high rate of speed is not negli- 
 gence per se? 
 
 Independently of any statute the driving of any vehicle on a public 
 highway at a rate of speed that is inconsistent with such control of 
 the vehicle as is necessary to avoid running down other vehicles going 
 in the same direction is some proof of negligence.' 
 
 While in the past there has been regulation concerning fast driving, 
 it was not deemed essential to define rates of speed in travel with the 
 particularity that has been found necessary since motor vehicles be- 
 came common, hence in addition, to the general provision already noted, 
 and for the better protection of all, the statute has set special bounds 
 which the traveler cannot transcend without incurring prescribed pen- 
 alties. Apart from other considerations, the mere violation of a "speed 
 limit" is not wrong in itself. It is wrong to violate it because the 
 sovereign has prohibited the act and made it a misdemeanor to do so 
 {malum prohibitum). But when it comes to driving in such a manner 
 as to endanger the "safety of the public," or, as the statute puts it in 
 another place,* "the lives or safety of the public," then we have an 
 offence wrong in itself (malum in se) and one to which the law gives 
 the names of recklessness or gross negligence, both of which are de- 
 scribed as a wanton disregard of duty, subjecting the oflFender to pen- 
 alties measured by the degree of injury inflicted, even to that of man- 
 slaughter." 
 
 iSee § 27s ef seq. 
 
 "See § 987. Union Traction Co. v. Howard, Ind. 90 N. E. § 764. 
 
 «Meyer v. Creighton, 83 N. J. L. 749 ; 8s Atl. 344- 
 
 *Mass. Act of 1909. chap. 534, sec. 22. 
 
 "Com. V. Adams, 114 Mass. 323; Com. v. Pierce, 138 Mass. 165; Com. v. Haw- 
 kins, 157 Mass. SSI, 32 N. E. 862; Com. v. Parsons, 195 Mass. 560, 81 N. E. 
 291 ; Weirich v. State, 140 Wis. 98, 126 N. W. 652 ; ex parte Snowden, 107 Pac. 
 724,' 12 Cal. App. 521; State v. Goetz, 83 Conn. 437, 76 Atl. 1000. 
 
 312 
 
SPEED LIMITATIONS § 425 
 
 Elsewhere this distinction has some notice and in other chapters is 
 more fully reviewed.^ 
 
 The purpose at this time is to present the subject of over speeding in 
 its aspect of a prohibited act, wrong only because it is prohibited, and 
 therefore within the class of crimes known as misdemeanors. 
 
 § 424A. Motive or intent. — ^The element of motive or intent does 
 not enter into mere violations of speed regulations unaccompanied by 
 recklessness or criminal negligence."^ In Com. v. Adams*'' Mr. Justice 
 Endicott says, concerning the violation of a speed ordinance : 
 
 "Besides to prove the violation of such an ordinance, it is not 
 necessary to show that it was done wilfully or corruptly. The 
 ordinance declares a certain thing to be illegal, it therefore be- 
 comes illegal to do it, without a wrong motive charged or neces- 
 sary to be proved ; and the court is bound to administer the pen- 
 alty although there is an entire want of design. * * * It is there- 
 fore immaterial whether the party violates the ordinance wilfully 
 or not. The offense consists not in the intent with which the act 
 is done, but in the doing of the act prohibited but not otherwise 
 wrong." 
 
 Both are, however, of importance in relation to crimes like homicide 
 resulting from reckless driving and the like, such offenses being mala in 
 se and felonies. Our present concern is with that aspect of the matter 
 known as malum prohibitum^ which regards an act as wrong only be- 
 cause the law makes it so. Such acts possess no innate vice and lacking 
 this element, are usually misdemeanors.""' 
 
 § 425. Safety of the public the test. — Very generally, a higher 
 speed is permitted in the open country than is allowed in towns and 
 cities. In Massachusetts the law distinguishes the one from the other 
 by the words "inside" or "outside" "the thickly settled or business 
 part of a city or town." But after all, it is of subordinate consequence 
 that the statute fixes a particular number of miles as a limit in this 
 
 eSee Chapter XLVII. 
 
 saGoodwin v. State, 63 Tex. Civ. App. 340, 138 S. W. 399, as to intent see 
 6b, 114 Mass. 323, further, post, § 1465. 
 
 8oNoT$. — For a review of the subejcts mala in se and mala prohibita, and 
 their distinctions, together with the consequences following upon acts of the 
 former class, see chapter XLVII on "Criminal Negligence." Provincial Motor 
 Cab Co. V. Dunning, 2 L. R. K. B. 599, June, 1909. 
 
 313 
 
§ 425 SPEED LIMITATIONS 
 
 place or that place, the reason and object of speed regulations being 
 the lives and safety of the public/ 
 
 The controlling influence of this proposition is manifest everywhere 
 by the courts and generally by legislatures.* In a very large majority 
 of the states the dominating feature of the statute is in effect the same 
 as the fundamental provision in Massachusetts, which may be called 
 the— 
 
 Cardinal Rule of Operation: 
 
 "Every person operating a motor vehicle shall run it at a 
 rate of speed at no time greater than is reasonable and proper, 
 having regard to traffic and the use of the way and the safety 
 of the public."* 
 
 This statute provision is really nothing more than an expression of 
 the common law," and is so comprehensive that if observed in all 
 cases, no other regulations defining special speed limitations would be 
 required. The specific rates of maximum permitted speed are in 
 reality, therefore, only supplementary expressions of the judgment of 
 the legislature regarding the extreme bounds of which the public safety 
 will admit, irrespective of the condition of traffic in, or the nature and 
 use of any particular thoroughfare at any given time or place. 
 
 The English Motor Vehicle Law (1903). is to the same effect as the 
 American statute just quoted: 
 
 "Sec I If any person drives a motor car on a public high- 
 way recklessly or negligently, or at a speed or in a manner 
 which is dangerous to the public, having regard to all the cir- 
 cumstances of the case, including the nature, condition and 
 use of the highway, and to the amount of traffic which actually 
 is at the time, or which might reasonably be expected to be on 
 the highway, that person shall be guilty of an offence under this 
 act."" 
 
 'Mass. Act of 1909. chap. S34, sec. 22). 
 'See Appendix E. 
 
 9Mass. Act of 1909, chap. 534, sec. 16. 
 loMcDonald v. Yoder, 80 Kas. 25, loi Pac. 468. 
 uRex. V. Wells, 91 L. T. 98; Troughton v. Mlanning, 92 L. T. 855. 
 
 314 
 
SPEED UMITATIONS § 42b 
 
 The legislature of Massachusetts has evidently taken the English 
 view of the point. In the Act of 1906," the penalty was provided in the 
 event of operation "so as to endanger the lives or safety of the pubHc," 
 and in the Act of 1909 (c. 534, s. 22), the phrasing was changed to 
 apply to operating "so that the lives or safety of the public might be 
 endangered." 
 
 American decisions generally have held to the same principles of 
 safe operation irrespective of precise speed limitations. In Garfield v. 
 Hartford, Etc., St. Ry. Co.,^^ Chief Justice Baldwin says that the rate 
 of speed of a vehicle may be "dangerous and excessive under all the 
 attending circumstances, though it would not be a great, unusual, or 
 excessive rate under ordinary conditions." 
 
 § 426. Must prove that on public road. — No conviction for reck- 
 less driving can be had where the evidence does not establish that the 
 road where the automobile was run was a public road." 
 
 Where the statute limits the speed on a highway unless it is a race 
 course or speedway the fact that it is a race course or speedway is de- 
 fensive matter to be proved.^*^ 
 
 § 427. Need not prove individuals endangered. — Under the Eng- 
 lish statute the English courts have held it unnecessary in order to make 
 out a prima facie case, that any particular vehicle was incommoded, or 
 any individual actually endangered or even inconvenienced. In Smith 
 V. Boon,^' Lord Alverstone, C. J., in speaking of the language of the 
 EngHsh Motor Vehicle Law, "having regard to the traffic on the high- 
 way," remarked: 
 
 "Now the appellant contends that in order to support a con- 
 viction, it was necessary that there should be some direct evi- 
 dence that the traffic was being interrupted, interfered with, 
 incommoded, or affected. It is said that there must be direct 
 evidence that some vehicle was nearly run into or incommoded, 
 or that some old woman must have had to step back on the foot- 
 path when crossing the road. In fact, it is said that there must 
 be something amounting to a risk of accident, if not actual ac- 
 cident, before there can be a conviction. I think that the words 
 
 12c. 412, s. 4. 
 
 i'8o Conn. 260. 
 
 "Allen V. State, Tex. Crim. App. 169 s. w. 1151. 
 
 "aLefkowitz V. Sherwood, Tex. Civ. App. 191 1 ; 136 S. W. 830. 
 
 "84 L. T. N. S. 593. 
 
 315 
 
§ 428 SPBED LIMITATIONS 
 
 'having regard to the traffic on the highway/ mean having re- 
 gard to traffic on the road, and not having, regard to traffic in 
 the immediate vicinity of the light locomotive."" 
 
 § 428. Must be reasonable speed.— An instruction directing a ver- 
 dict for the defendant if the plaintiff ran his bicycle into defendant's 
 automobile at a time when the driver could not by the exercise of 
 ordinary care, have stopped the automobile should have imposed on 
 the driver the further requirement of running the automobile at a 
 reasonable speed.^' 
 
 § 429. Speed mania. — The court comments on the speed mania of 
 motorists and the prevelance of accidents as a result in a recent Maine 
 case.^* 
 
 § 430. Speed "reasonable and proper" too vague. — Although 
 statutes forbidding a speed greater than is "reasonable and proper" 
 are common and are universally acted on still in some states such lan- 
 guage has been held too vague for a penal statute though still sufficient 
 as a guide in a civil case. For example it has been held that a statute 
 making it a penal offence to operate an automobile "at a rate of speed 
 greater than is reasonable and proper having reguard to the traffic and 
 use of the highway or so as to endanger the Uf e or limb of any person 
 or the safety of any property," is too uncertain in its terms to be 
 capable of enforcement. It does not appear what rate of speed is rea- 
 sonable and proper. The legislature cannot set a dragnet and leave the 
 courts to determine who shall be held by it.^' 
 
 The automobile act of 1910 prohibiting their operation at a rate of 
 speed greater than is reasonable and proper is void as too indefinite 
 but the measure of care there laid down is not too indefinite to furnish 
 a rule of civil conduct.^" This case seems inconsistent with an earlier 
 case holding that where the declaration charges that the automobile was 
 operated at a rate of speed greater than was reasonable and proper this 
 
 isSee also Mayhew v. Sutton, 71 L. J. K. B. N. S. 46, iQOi. 
 "Helm V. Phelps, iS7 Ky. 795, 164 S. W. 92. 
 
 isSavoy V. McLeod. in Maine 234; 88 Atl. 721, 48 L. R. A. N. S. 97i- 
 "Hayes v. State, 11 Ga. App. 371, 755 E. 523; Carter v. State, 12 Ga. App. 
 430, 78 S. E. 20s. 
 2»Strickland v. Whatley. 142 Ga. 802, 83 S. E. 856. 
 
 316 
 
SPE^ IvIMlTATlONS § 431 
 
 is too uncertain to be valid under the Georgia decisions but may be re- 
 garded as surplusage.^^ 
 
 A statute forbidding the driving of an automobile at a rate of speed 
 greater than is reasonable and proper may be too vague to be enforced 
 as a penal statute and still sufficient as a remedial statute imposing a 
 civil duty.^^ 
 
 What is we believe the more usual view is contained in a recen* 
 Nebraska case as follows: 
 
 The Nebraska statute limiting the speed of motor vehicles to what is 
 reasonable and proper having regard to the safety of the public is not 
 void as being unreasonable. The legislature no doubt recognized the 
 dangers from the use of motor vehicles and deemed it necessary to 
 regulate their use.^^ 
 
 § 431. Other vague limitations. — In State v. Smith,^* the supreme 
 court of Rhode Island had before it a similar contention. In that 
 state, by an old act, riding was prohibited at a rate faster than "a com- 
 mon traveling pace," in specified localities. It was argued that the act 
 was vague in not defining a "common traveling pace." The court held 
 that the expression criticized had always had a clear and well under- 
 stood meaning and that a complaint charging a violation was suf- 
 ficiently clear.^^ 
 
 § 432. Purpose of specific speed limitations. — Experience having 
 demonstrated the futility of relying upon the individual idea or even 
 the official municipal judgment, of what constituted "reasonable and 
 proper" operation in different districts and under various circum- 
 stances, the legislatures of most of the states have undertaken to ex- 
 press in figures of distance and time the extreme limits of speed within 
 which reasonable operation may extend. These restrictions are com- 
 monly described as statute speed limitations and generally supplant 
 and sometimes in terms abrogate, local regulations on the subject, the 
 
 2iHolland v. State, 11 Ga. App. 769, 76 S. E. 104. 
 
 22Sloan V. Pasch«, Tex. Civ. App. 153 S. W. 672. 
 
 23Schultz V. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. (N. S.) 403. 
 
 2*35 R. I. 282, 69 Atl. 1061. 
 
 2BBut see City of Shawnee v. Landon, 25 Okl. 263, 106 Pac. Repr. 652, where the 
 court held that the expression always having had reference to conveyances drawn 
 by animals, the statute being penal, could not be extended to include motor ve- 
 hicles. 
 
 317 
 
§ 433 SPBfiD LIMITATIONS 
 
 end sought being "to make certain uniform speed regulations appli- 
 cable to the entire state."''' 
 
 § 433. Distance covered at prohibited speed.— What is pertinent 
 to this point cannot be better expressed than by quoting the remarks of 
 Mr. Justice Wanner in Commonwealth v. Pf eiffer.^' 
 
 We cannot sustain "defendant's contention that the record 
 must show that the defendant drove his automobile at a pro- 
 hibited rate of speed for the space of a full mile. Such a con- 
 struction of the law would be against the letter and spirit of the 
 act. * * * It is the excessive rate of speed which is pro- 
 hibited and not its continuance for any specified distance. The 
 act would fail of its purpose to protect the lives and property of 
 citizens on the public streets and highways if it could not punish 
 a reckless driver merely because he had checked his unlawful 
 speed within a few feet of the mile limit." 
 
 In Caufman's Case,^' the court was inclined to a different view but 
 did not decisively pass upon the point. 
 
 § 434- Average speed limit.— A statute forbidding an average 
 speed greater than twenty miles an hour does not prohibit a speed 
 higher than that anywhere but allows an average for a trip of that 
 rate. Under this statute the court may instruct that it is negligence to 
 drive at an average speed of over twenty miles an hour although it 
 may be dif5ficult to ascertain what is the "average" speed without know- 
 ing the distance traveled and time occupied.^' 
 
 § 435. Specific speed limitations subordinate to rule of reason- 
 able rate. — In most of the states*" the provision as to reasonable speed 
 upon all occasions is the dominating feature of the statute and the 
 specific limitations subordinate thereto.'^ In some of the states, as in 
 Massachusetts, a violation of the specific limitations is expressly de- 
 clared by the act itself, to be no more than prima facie evidence of a 
 rate of travel greater than is reasonable and proper.'^ 
 
 2«PeopIe V. Hayes, 66 N. Y. Misc. Reps. 606, 124 N. Y. S. 417. 
 
 2^35 Pa. Co. Ct. Reps. 476. 
 
 28i8 Pa. Dist. Reps. 25. 
 
 2=Scott V. O'Leary, 157 Iowa 222, 138 N. W. 512. 
 
 '"See Appendix E. 
 
 aiByrd v. State, 129 S. W. 620 (Tex.). 
 
 s^See §§ 372, 37S- 
 
 318 
 
SPEED IvIMlTATIONS § 436 
 
 It follows, therefore, in the last-mentioned class of states, that there 
 has been no violation of law if a speed greater than the maximum 
 specifically mentioned in the act, can be shown to have been reasonable 
 and proper under the circumstances. As to the efifect of the paramount 
 rule in the former class of states there is much that is suggestive in the 
 remarks of Chief Justice Deemer of Iowa, in which state the statute 
 declares specific rates of speed and provides for reasonable operation 
 at all times, but goes no farther. In the recent case of Neidy v. Little- 
 john,^^ Judge Deemer says: 
 
 "It is assumed that defendant, in so far as the statute is con- 
 cerned, could not run his machine at a greater rate of speed than 
 twenty miles per hour. The statute does not so declare. It 
 says that tio person shall drive an automobile * * * at a 
 greater average rate of speed than twenty miles an hour. 
 
 * * * It is not true that an automobile cannot be driven at 
 a greater rate of speed than twenty miles per hour upon the 
 country roads." 
 
 § 436. Speed may be unreasonable though within maximum 
 limit. — In Irwin v. Judge,'* the court define "a high rate of speed" of 
 an automobile, by saying: 
 
 "That it was an unreasonable one considering the time and 
 place, and one which prevented the defendant from controlling 
 his machine so as to avoid the collision, even though it was less 
 than the maximum statutory rate within the limits of the city. 
 
 * * * In fixing the maximum rate within the city at twelve 
 miles an hour, the statute does not purport to establish a rate 
 of speed which will be lawful under all circumstances * * * 
 provided that rate was greater than was 'reasonable and proper, 
 having regard to the width, traffic and use of the highway,' or 
 was such "as to endanger property or the life or limb of any 
 person.' " 
 
 In Brinkman v. Pacholke,'° the court held that notwithstanding the 
 statute permitting a speed not exceeding twenty miles an hour, the 
 motorist was not relieved from the duty to run at a lower rate when 
 prudence or safety requires.'" In Hartje v. Moxley,'' the court held, 
 
 3S146 Iowa 355, 25 N. W. 198. 
 
 3*81 Conn. 492, 71 Atl. 572. 
 
 8=41 Ind. App. 662, 667, 84 N. E. 1(^2. 
 
 '^See Simeone v. Lindsay (Del.), 6 Pen. 65 Atl. 778, 224. 
 
 »T23S 111. 164, 167, 85 N. E. 216. 
 
§ 437 SPEED LIMITATIONS 
 
 in determining the highest lawful rate of speed at which an auto- 
 mobile may ,be driven in a particular locality, that the proviso of the act 
 limiting such speed in any case to a reasonable speed, having regard to 
 the traffic and use of the highways, etc., "must always be given 
 effect."^^ In the United States courts, as early as i8i7,'» Mr. Justice 
 Washington said : 
 
 "The court is of opinion that driving a carriage through a 
 crowded or populous street, at such a rate or in such a manner 
 as to endanger the safety of the inhabitants, is an indictable 
 offence at common law, and amounts to a breach of the peace." 
 
 This principle has been ennunciated again in two important recent 
 cases, the first holding that under state law making it lawful to operate 
 an automobile at twenty miles an hour it may be negligent to operate at 
 a less speed.*" So the Massachusetts statute does not give the driver a 
 right to drive at even eight miles an hour in a crowded thoroughfare.*^ 
 
 § 437. Defence of not exceeding speed limitations. — It is some- 
 times claimed by the defendant motorist that at the time of the occur- 
 rence of an accident, he was not traveling in excess of the rate of speed 
 limited by law, and that, therefore, he is without fault. Mr. Justice 
 Freedman in Thies v. Thomas,*^ in the New York Supreme Court (in 
 which state the general provision concerning reasonable and proper 
 operation is similar to that in Massachusetts), in charging the jury, 
 thus sums up the general proposition : 
 
 "Now the deceased was killed by an automobile in charge of 
 the defendant at the time. It is claimed by the plaintiff that the 
 automobile at the time was run at an excessive rate of speed. 
 But that is not the important point. The mere rate of speed, 
 whether high or low, lawful or unlawful, is immaterial unless it 
 entered into the cause of the accident. * * * Aii automo- 
 bile is a vehicle of quite recent times, carrying its motive power 
 within itself, but as such it has the same duties to perform when 
 meeting pedestrians or other vehicles, in the streets of this city, 
 
 88See also Haynes Automobile Co. v. Sinnett,'46 Ind. App. 672, 91 N. E. I7i- 
 89United States v. Hart, i Peters Cir. Ct. Reps. 390, 392. 
 lopowkes V. Case Threshing Machine Co., Utah, 1915, 151 Pac. 53. 
 4iRasmussen v. Whipple, 211 Mass. 546; 98 N. E. 593- 
 *'i^^ N. Y. Supp. 276, 279- 
 
 320 
 
SPEED LIMITATIONS § 437 
 
 which other vehicles are subjected to. There are vehicles drawn 
 by horses, and there are trolley cars moved by electricity 
 
 * *_ * and each is permitted to go at a certain rate of speed ; 
 but it never has been the law and it never will be the law, 
 that the driver of a horse and wagon or the motorman of a 
 trolley car may escape responsibility for a collision hy simply 
 showing that at the time of the collision he did not exceed the 
 
 limit of speed fixed by law or the ordinances of the city.*^ 
 
 * * * On the contrary, the law has always been, and yet is, 
 that every driver of a horse and wagon and every motorman of 
 a trolley car is bound to anticipate that persons on foot or in other 
 vehicles may be met at any point in a public street, and there- 
 fore bound to look out for them, and to keep his horse and 
 wagon or his trolley car constantly under such control as will 
 enable him to avoid a collision with another vehicle if possible. 
 
 * * * No owner or operator of an automobile is, therefore, 
 exempt front liability for a collision in a public street by simply 
 showing that at the time of the accident he did not run at a rate 
 of speed exceeding the limit allowed by law or the ordinances. 
 On the contrary, no matter how great the rate of speed may be 
 which the law and the ordinances permit, * * * he still 
 remains bound to anticipate that he may meet persons at any 
 point in a public street, and he must keep a proper lookout for 
 them, and keep his machine under such control as will enable 
 him to avoid a collision with another person also using proper 
 care and caution. If necessary, he must slow up and even stop. 
 No blowing of horn or of a whistle, nor the ringing of a bell or 
 gong, without an attempt to slow the speed, is sufficient if the 
 circumstances at a given point demand that the speed should 
 be slackened or the machine be stopped, and such a course is 
 practicable, or in the exercise of ordinary care and caution pro- 
 portionate to the circumstances, should have been practicable. 
 The true test is that he must use all the care and caution which a 
 
 ' careful and prudent driver would have exercised under the same 
 circumstances." 
 
 The doctrine of Thies v. Thomas, breathes the spirit that runs 
 through the decisions on this subject in all the states.** 
 
 *3The italics are the author's. 
 
 "Feeny v. Wabash R., 123 Mo. App. 427, 99 S. W. 477; Hannigan v. Wright, 
 5 Pen. Del., 63 Atl. 237 ; Davis v. Maxwell, 108 N. Y. App. Div. 128, 131, 96 N. Y. 
 S. 4S; Garfield v. Hartford, Etc., Ry., 80 Conn. 260, 67 Atl. 890; Simeone v. 
 Lindsay, 65 Atl. 778, 5 Pen. Del. ; Hartje v. Moxley, 235 111. 164 85 N. E. 216 ; 
 Brinkman v. Pacholke, 84 N. E. 762, 41 Ind. App. 662, 85 N. E. 762; Walkup v. 
 Beebe, 139 Iowa 39S, 116 N. W. 321, 322. 
 
 321 
 
 21 
 
§ 438 SPSED LIMITATIONS 
 
 The English courts interpret in the same way, the English statute, 
 which on this point has been seen to be similar to that of many Ameri- 
 can states. In Troughton v. Manning," Lord Alverstone, C. J. at 
 King's Bench, said : " 
 
 "I think it quite impossible to consider the question of negli- 
 gent or reckless driving, without having regard to the circum- 
 stances. It is said those words only related to the words 'at a 
 speed or in a manner which is dangerous to the public,' but I 
 do not think so, because one must consider all the circumstances 
 of the case before one can say whether there had been negligent 
 or reckless driving. * * * i think the idea does prevail 
 among some motor drivers, that if they blow their horn they are 
 justified in going on at any rate of speed, and that people are 
 bound to get out of their way. This practice is not universal 
 but it does to a large extent prevail." 
 
 The Canadian courts take the same view. In Mattei.v. Gillies," 
 Chancellor Boyd says upon this point : 
 
 "It has been more than once noticed that the idea prevails . 
 among some motor drivers that when once they have sounded 
 the horn they are justified in going at any rate of speed, and 
 that people are bound to get out of their way ; see Lord Alver- 
 stone in Troughton v. Manning, 69 J. P. 207 ; whereas the more 
 salutary rule would be as recommended by the 'Considerate 
 Drivers' League,' 'Assume that it is your business and not the 
 other man's to avoid danger.' Pettit on Motor Cars, p. 81." 
 
 § 438. Meaning of the expression "business part" of a city or 
 town. — In connection with particular speed limitations, the statute uses 
 the expression "thickly settled" or "business part" of a city or town,*' 
 and in some states, "business portion" of a community. In Michigan 
 the meaning of this language was the subject of judicial consider- 
 ation. In People v. Dow,*' the defendant contended that the expression 
 was vague because it did not define the meaning of the term nor dis- 
 tinguish other parts of a city or town from the "thickly settled" or 
 "business portion." The court, in deciding the point, say that the dis- 
 
 «92 L. T. 855. 
 
 «6i6 Ont. L. Reps. SS8 (Can.) 
 ^i^Mass. c. 534, s. 16, A. 1909. 
 <8iSS Mich. IIS, 118 N. W. 745. 
 
 322 
 
spSSd imitations § 439 
 
 tinction between the business and the residence portion of any com- 
 munity is well understood by everyone and determinable by the char- 
 acter of the buildings. There may be several "business portions" 
 widely separated from each other in the same city, but they are always 
 ascertainable as a matter of fact.*' 
 
 Where an automobilist is tried for manslaughter for running his 
 automobile at an unlawful rate of speed in a "business and closely 
 built up" portion of the city, the character of the locality is a material 
 fact to be determined by the jury upon evidence submitted and not 
 by the declaration of the city through a city ordinance.*" 
 
 It seems that an instruction that the defendant is guilty of negligence 
 as matter of law if he was driving faster than eight miles an hour is 
 erroneous without also finding that the place was in the "business por- 
 tion" of the city as the statute contemplates or that that rate of speed 
 was negligent under the circumstances.'^ 
 
 Where the statute fixes i8 miles an hour upon any road as the maxi- 
 mum speed and limits it to 8 miles an hour in the built up portions driv- 
 ing in excess of i8 miles an hour in the built up portions constitutes 
 two offences — one against each speed provision.'^ 
 
 § 439. Operation where view is obstructed. — Besides the special 
 speed limitations "inside" and "outside" the "thickly settled" or "busi- 
 ness" parts of a city or town, there is in Massachusetts the prohibition 
 of speed which "exceeds eight miles an hour," "upon approaching an 
 intersecting way, or in traversing a crossing or intersection of ways, 
 or in going around a corner or a curve in a street or way, where the 
 operator's or chauffeur's view of the road traffic is obstructed.""' 
 
 As in all other cases, so again, dominating this provision are the 
 general requirements (i) that the lives and safety of the public shall 
 never be jeopardized by any sort of operation, particularly that of speed 
 in excess of "reasonable and proper" at all times and under all prevail- 
 ing conditions, and (2) that the operator shall use every reasonable 
 precaution to prevent frightening animals. Everywhere in the statute 
 is found solicitude for the public safety embodying its spirit and point- 
 
 *»See also State v. Smith, 35 R. I. 282, 69 Atl. 1061. 
 
 BoState V. Born, 85 Ohio 430; 98 N. E. 108. 
 
 5iMcDonneIl v. Columbia Taxicab Co., 168 Mo. App. 351, 151 S. W. 767. 
 
 »2Byrd v. State, Tex. 129 S. W. 620, 59 Tex. Civ. App. 513. 
 
 "Mass. A. 1909, c. 534, s. 16. 
 
 323 
 
§ 439 SPttD IMITATIONS 
 
 ing its intent, so here the controlling idea of limited speed at the places 
 indicated, is the probability of meeting pedestrians or vehicles, and ina- 
 bility to see them in time to prevent the occurrence of accident. With- 
 out, therefore, doing any violence to the section which seems to limit 
 the phrase "where the operator's or chauffeur's view of the road traffic 
 is obstructed," to corners or curves in the highway, and because of the 
 general provisions referred to, it may safely be assumed that wherever 
 and whenever the operator's view is impaired from any cause, at a 
 place where he is liable to meet people or vehicles, it is his duty to 
 slow down the machine and drive with caution, or even to stop alto- 
 gether, until he can obtain a clear view.°' 
 
 In Lampe v. Jacobsen," the Supreme court of the State of Washing- 
 ton, say with regard to the movement of an automobile in crowded 
 streets : 
 
 "Moving quietly as it does, without the noise which accom- 
 panies the movement of a street car or other ordinary heavy 
 vehicle, it is necessary that caution should be continuously ex- 
 ercised to avoid collisions. * * * The speed should be lim- 
 ited, warnings of approach given, and skill and care in its man- 
 agement so exercised 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."'" 
 
 An operator's view may be said to be obstructed where he is making 
 a turn on to a bridge and his view towards the bridge is to some extent 
 obstructed by large beams and braces in the truss or span of the 
 bridge." 
 
 A passenger in an automobile in a suit against the driver can take 
 advantage of a statute forbidding a certain speed on approaching a 
 turn where the view is obstructed.^' 
 
 s*Buscher v. N. Y. Transp. Co., io6 N. Y. App. Div. 493, 49S; Gregory v. 
 Slaughter, 99 S. W. 247. 248 (Ky.), 29 Ky. L. Reps.; King v. Green, 94 Pac 
 777, 77^, 7 Cal. App. 473- 
 
 B546 Wash. 436, go Pac. 6S4- 
 
 esSee also Hannigan v. Wright, s Pennew, Del. 537, 63 Atl. 234, The Massa- 
 chusetts Act of 1909, c. 534, ss. I, 4, and 16 is particularly insistent on these points. 
 
 s'Pairchild v. Fleming, 125 Minn. 431, 147 N. W. 434. 
 
 Bspairchild v. Fleming, 125 Minn. 431, 147 N. W. 434- 
 
 324 . \ .. '" 
 
SPEED I,IMITATI0NS § 440 
 
 The court may quote to the jury the automobile act that, upon ap- 
 proaching a high embankment the rate of speed shall not exceed six 
 miles an hour, although the evidence differed as to whether the fill was 
 three feet high or only one or two feet high.^' 
 
 § 440. Operation at intersecting ways.*" — Under Missouri stat- 
 ute a requirement that an automobile shall not approach a corner at a 
 greater speed than six miles an hour applies only where the view is ob- 
 structed. The language is "When turning a corner of intersecting 
 roads or streets, or when traversing a curve or turn in the road or street 
 where the view is obstructed" and it was claimed that the provision 
 concerning obstruction of view only applied to curves or turns."^ 
 
 A requirement of a certain maximum speed at a crossing applies to 
 one standing three or four feet from the crossing when hit.°^ 
 
 A limitation of speed when approaching "a crossing of intersecting 
 highways and railroad crossings" is not confined to a railroad cross- 
 ing.*' 
 
 § 441. Speed on passing.** — A statute providing that a motor 
 vehicle shall reduce its speed to a rate not exceeding eight miles an 
 hour on approaching another vehicle cannot be applied to a horse- 
 drawn vehicle going in the same direction as the operator of the motor 
 vehicle has a right to pass and it is a matter of common knowledge 
 that horaes frequeiitly travel faster than eight miles an hour and a 
 strict application of the statute would mean that the automobilist could 
 not pass such a vehicle.*^ 
 
 § 442. Concurring penalties.** — Where the general State motor 
 vehicle law fixes a maximum rate of speed and a local ordinance fixes 
 a lower rate of speed, "any person driving a motor vehicle at a speed 
 in excess of such lower rate but not in excess of the speed limitation 
 prescribed by the general law, is liable to prosecution and punishment 
 under the ordinance only ; but any person who violates the speed limi- 
 tations prescribed in the general law itself, even though such violation 
 
 "Strickland v. Whatley, 14 Ga. App., 83 S. E. 856. 
 
 '"As to meaning of term intersecting way see further § 384. 
 
 BiPannell v. Allen, 160 Mo. App. 514, 142 S. W. 482. 
 
 •2Heath v. Seattle Taxicab Co.. 73 Wash. 177, 131 Pac. 843; g N. C. C. A. i8g. 
 
 «3Hayes v. State, 11 Ga. App. 371, 755 E. 523. 
 
 6*0vertaking and passing, see further § 362 et seq. 
 
 o^State V. Pfeifer, Kan., 153 Pac. 552. 
 
 68See also § 487. 
 
 325 
 
§ 443 SP^ED I<IMITATI0NS 
 
 occurs within the limits of the municipality, remains liable to prosecu- 
 tion and punishment under the provisions of the general law."" 
 
 § 443- Liability of owners'^ to penalty for over speeding.— 
 Where the owner is in the car though not actually operating it, he will 
 be held liable in a proceeding for violation of the motor vehicle laws 
 prohibiting overspeeding, on the ground that having the right to control 
 it, he will be presumed to have known and allowed the vehicle to 
 illegally run.«» In the case cited the court say, concerning the presump- 
 tion : 
 
 "The case so made out is a prima facie case only. It may 
 be contradicted or explained. But uncontradicted and unex- 
 plained it does, in our opinion, warrant that inference, and so 
 makes out a prima facie case."'"' 
 
 § 444. Liability of passenger." — If a person not the owner is 
 aboard the car and in control thereof so as to be able to govern its 
 management or operation, though not actually acting as chauffeur, he 
 will be held responsible for any negligence in the operation of the ve- 
 hicle.''^ But where the passenger is not in control of the machine either 
 directly or indirectly, particularly if ignorant of its management, he 
 will not be held accountable." 
 
 § 445. Remedies. — In addition to the civil and criminal remedies 
 against the party in general control of the vehicle, the driver (chauf- 
 feur) can also be held criminally for the reason stated in the chapter 
 on Criminal Negligence,'* and in the next section. 
 
 87People ex rel. Hainer v. Prison Keeper, 190 N. Y. 315, 320, 83 N. E. 44; 
 Byrd v. State, 129 S. W. 620 (Tex.). 
 
 88See § 1460 et seq., Criminal negligence, § 799; Respondeat superior, § 204; 
 Owners, Chapter XI. 
 
 sPCom. V. Sherman, 191 Mass. 439, 44i. 78 N. E. 98- 
 
 '"See also Wharton's Criminal Law, Sec. 223, loth Ed.; Du Cros v. Lam- 
 bourne, 76 L. J. N. S. (K. B.), so. 
 
 T^See § 1 194, et seq.. Passengers. 
 
 '^Simeone v. Lindsay, 65 Atl. Repr. 778, 780, 6 Pen. (Del.) 244. 
 
 78Sherwood v. N. Y. Cent. R., 105 N. Y. Supp. S47, Vol. 139; Apperson v. 
 Lazro, 87 N. E. 97 (Ind.) ; 44 Ind. A. 186; Lawrence v. Pitchburg Ry., 201 Mass. 
 489, 87 N. E. 898. 
 
 74§ 1460, et seq. 
 
 326 
 
SPEED I,IMITATI0NS § 446 
 
 Irrespective of any judicial proceedings, both the operator and owner 
 may be held liable by the licensing authority in proceedings for the 
 revocation or suspension of license or of the certificate of registration, 
 or both." 
 
 § 446. All are principals in misdemeanors.^" — Cases of overspeed- 
 ing unaccompanied by misadventure, not being punishable by imprison- 
 ment in the state prison, are, under the Massachusetts statute, punish- 
 able as misdemeanors, and it is settled law that: "in misdemeanors 
 there are no degrees, but that all who participate in the commission of 
 the offence are principals and may be charged as such." This is the 
 common law rule.''^ 
 
 "See §§ 142, 253. 
 '8See § 932, et seq. 
 
 '^Com. V. Sherman, 191 Mass. 439, 440, 78 N. E. 98, and cases cited ; Du Cros 
 V. L,ambourne, 76 L. J. N. S. (K. B.) 50; Wharton's Crim. Law, 10 Ed., Sec. 223. 
 
 327 
 
CHAPTER XX 
 
 RECKLESS OPERATION UNDER THE STATUTE 
 I. In Generai,. 
 § 447. Scope of chapter. 
 
 448. The statute. 
 
 449. Statute inapplicable to one jumping on the car. 
 
 § 447. Scope of chapter. — The following considerations are de- 
 voted to reckless operation as the word "recklessly" is used in the 
 statute.^ The same is true with reference to the observations concern- 
 ing operation "while under the influence of intoxicating liquor." Neith- 
 er is here considered in the common law aspect as an offence malum in 
 se, or as negligence per se. Necessarily the border line of distinction 
 between the common law crime and the statutory inhibition is indistinct, 
 and some of the cases run the two together. To arrive at a clear con- 
 ception of the force and effect of the language quoted, other parts of 
 this work should be examined. 
 
 § 448. The statute. — "Whoever upon any way operates an auto- 
 mobile or motorcycle recklessly or while under the influence of intoxi- 
 cating liquor, or so that the lives or safety of the public might be en- 
 dangered," etc? 
 
 This language when taken as a whole, is very comprehensive. Pri- 
 marily it negatives any inference of the occurrence of an innocent ac- 
 cident while the statute conditions exist,' and upon its face conveys the 
 impression that it is intended to cover any personal condition or method, 
 or lack of method, in motor vehicle operation which shall have for its 
 effect an impairment of public or individual safety in travel. 
 
 The English act of 1903 provided as follows : 
 
 "Sec. I. (i) If any person drives a motor car on a public 
 highway recklessly or negligently, or at a speed or in a manner 
 which is dangerous to the public, having regard to all the cir- 
 cumstances of the case, including the nature, condition and use 
 
 iMass. Act. 1909, chapter 534, section 22. 
 zMass. Act 1909, chap. S34> sec. 22. 
 sState v. Welford, 28 R. I. 4So, 72 Atl. 396. 
 
 328 
 
rh;cki,essn-ess undur the statute § 449 
 
 of the highway, and to the amount of traffic which actually is at 
 the time, or which might reasonably be expected to be, on the 
 highway, that person shall be guilty of an offence under this 
 act." 
 
 The following comments have been made on the English statute.* 
 
 "It seems to me it is quite impossible to say that the only 
 offence here is 'driving at such a speed as is dangerous,' because 
 it is obvious that there is the offence of driving at a speed which 
 is dangerous to the public, or the offence of driving in a manner 
 dangerous to the public. I do not think you can treat the words 
 'at a speed' as surplusage, any more than the words 'or in a 
 manner.' I also desire to point out that a person may be going 
 at quite a moderate speed and yet be driving in a manner that 
 is dangerous to the public — that is, swaying from side to side 
 or not having proper control of the machine." 
 
 § 449. Statute inapplicable to one jumping on the car. — In hold- 
 ing the statute inapplicable to a tollgate keeper who jumped on a car 
 and fell off during an altercation with the driver the court remarks per 
 Alverstone, C. J.° : 
 
 "I think it is quite impossible to consider the question of 
 negligence or reckless driving, without having regard to the 
 circiunstances. It is said those words only related to the words 
 'at a speed or in a manner which is dangerous to the public,' 
 but I do not think so, because one must consider all the cir- 
 cumstances of the case before one can say whether there had 
 been negligence or reckless driving. I have, however, come to 
 the conclusion that this conviction cannot be supported, but 
 nothing that I say must be supposed to support the view that the 
 driver of a motor car need not regard hie obligations under the 
 statute where there is only one person in the road, whether he 
 is lawfully there or not, or whether he could or could not get 
 out of the way. I think the idea does prevail among some motor 
 drivers that if they blow their horn they are justified in going 
 on at any rate of speed, and that people are bound to get out of 
 the way. This practice was not universal, but it does to a large 
 extent prevail." 
 
 "In this case there was no evidence of any breach of the 
 section * * * but a personal grievance as between the toll 
 
 *Per Alverstone, C. J., in Rex v. Wells, 91 L. T. 98. 
 "Troughton v. Manning, 92 I,. T. 8SS. 
 
§ 45° RECKLESSNESS UNDER THE STATUTE 
 
 keeper and the 'driver of the car.' We ought not to strain the 
 statute and turn into a criminal offence a personal grievance of 
 the complainant independent of what would be regarded as reck- 
 less or negligent driving within the statute." 
 
 Kennedy, J., said : "I do not think that this was within the 
 section, properly and fairly read, for my view of the intention 
 of the section is to prevent misconduct in the management of a 
 motor car towards the public who were outside it on the high- 
 way. The section was not meant for the protection of perosns 
 on the car itself, but was for the protection of persons using 
 the highway. I do not think that the intention was to punish 
 anyone who was reckless as regards passengers on the car." 
 
 II. Operating "Recklessly * * * or so that the Lives or Safety of the 
 Public Might be Endangered" 
 
 450. There are certain general propositions. 
 
 451. "Dangerous" defined. 
 
 452. "Reckless" defined. 
 
 453. Recklessness distinguished from negligence. 
 
 454. In its wider scope. 
 
 455. Where driving according to law. 
 
 456. Care after seeing danger insuflScient. 
 
 457. Public safety. 
 
 458. Joint liability. 
 
 459- Questions for jury. 
 
 § 450. There are certain general propositions which are taken to 
 be well settled and applicable to the subject in hand. These proposi- 
 tions may be summarized as follows: The automobile, though a ve- 
 hicle of recent times, has the same duties to perform to which other 
 vehicles are subjected. Every driver is bound to anticipate that per- 
 sons on foot and in other vehicles may be met at any point in a public 
 street, and is therefore bound to look out for them, and keep his vehicle 
 under such control as will enable him to avoid a collision if possible. 
 Defenses of not exceeding speed limitations, blowing of horns, etc., are 
 not sufficient if the circumstances at the time demand that the speed 
 be slackened or the machine stopped, and such course is practicable.* 
 
 On the other hand, every operator of a motor vehicle has the right to 
 assume and to act upon the assumption, that every person whom he 
 meets will also exercise ordinary care and caution according to the cir- 
 
 «See § 437- 
 
 330 
 
RECKI<KSSNESS UNDER THE STATUTE § 45^ 
 
 cumstances, and will not negligently or recklessly expose himself to 
 danger, but rather make an attempt to avoid it.'' 
 
 § 451. "Dangerous" defined.— The word "dangerous" is defined by 
 Webster as "attended or beset with danger; full of risk; perilous; 
 hazardous; unsafe." It is the antithesis of the word "safe." When 
 a given place or thing or act ceases to be safe, it becomes dangerous if 
 in its nature it is capable of working injury.' The word is relative to 
 the circumstance. What would be dangerous in regard to one state of 
 facts might be wholly safe under others. 
 
 Reckless driving is not necessarily fast driving, it may present itself 
 in a variety of other forms and have relation to place. Chief Justice 
 Baldwin says' that the rate of speed of a vehicle may be : 
 
 "Dangerous and excessive under all the attending circum- 
 stances, though it would not be a great, unusual or excessive 
 rate under ordinary conditions." 
 
 "The more dangerous the character of the vehicle or machine and 
 the greater its liability to do injury to others, the greater the degree of 
 care and caution required in its use and operation."^" 
 
 § 452. "Reckless" defined.-r-The dictionaries define "reckless" and 
 "recklessly" as : "Destitute of heed or concern for consequences ; rash ; 
 not caring or noting; neglectful; indifference." (Standard Diet.); 
 "Heedlessly, carelessly." (Worcester Diet.); "Inattentive to duty; 
 rashly negligent." (Webster Diet.). Recklessly, recklessness and 
 reckless are "synonymous with heedlessness and indifference," e. g., an 
 engineer who drives his locomotive across the streets of a large city, 
 with indifference as to whether a party may be injured or not. (7 
 Words & Phrases Jud. Defined, p. 5999). 
 
 The phrase "rashly, recklessly or wantonly" means something more 
 than mere inattentiveness or want of ordinary care, and must show such 
 
 ^O'Brien v. Hudner, 182 Mass. 381, 65 N. E. 788, 25 Cent. Dig. 1922, sees. 459, 
 460; Thies V. Thomas, ^^ N. Y. Supp. 276, 279; Hennessey v. Taylor, 189 Mass. 
 583, 584, 76 N. E. 224. 
 
 "Coates V. Canaan, 51 Vt. 131, 137, 1879. 
 
 »Garfield v. Hartford, etc., St. Ry. Co., 80 Conn. 260, 67 Atl. 890. 
 
 i^Simeone v. Lindsay, 65 Atl. Repr. 787, 6 Pen. (Del.) 224. 
 
§ 453 Ri;CKI.ESSNESS UNDER THE STATUTE 
 
 a disregard of consequences as to evince little short of actual intent to 
 coiTimit injury.^^ 
 
 Predicating his remark upon the duty of drivers to obey the laws 
 regulating the use of motor vehicles, Chief Justice Du Bois says : 
 
 "Disregard of or inattention to such duty constitutes unlaw- 
 fulness and recklessness."^^ 
 
 Although laws against "reckless" driving are common and are usually 
 upheld still a city ordinance prohibiting the operation of an automobile 
 in a careless and reckless manner was held void as too indefinite under 
 the peculiar Georgia rule.^^ 
 
 § 453. Recklessness distinguished from negligence. — From the 
 foregoing, and after an extended review of the authorities, the follow- 
 ing is offered as distinguishing reckless conduct from other forms of 
 so-called negligence. Recklessness groups with negligent acts because 
 there is an absence of any distinct intention to produce the precise dam- 
 age which actually follows as the result of the act or omission, but it 
 differs from negligence narrowly defined, in that the latter is a mere 
 omission of duty through inadvertance, while "recklessness" implies 
 that the person thinks of the probable consequences of his act, but as- 
 sumes that the mischief will not ensue in the particular instance. He 
 intentionally runs a risk of which he is conscious, or ought to be con- 
 scious, but thinks the evil will probably be averted in some way. In 
 Georgia Pacific R. v. Lee," the court say in describing this subject: 
 
 "It is that recklessness, or wantonness, or worse, which im- 
 plies a willingness to inflict the impending_ injury, or a willful- 
 ness in pursuing a course of conduct which will naturally or 
 probably result in disaster, or an intent to perpertate a wrong." 
 
 Frequently the word is used as importing the idea of a wilful pur- 
 suit of a course of wrong conduct accompanied by a wanton disregard 
 of consequences. Such conduct is malum in se, and "accidents" re- 
 sulting are crimes.^^ 
 
 "Barlow v. Foster, 149 Wis. 613, 136 N. W. 822. 
 "State V. Welford, 28 R. I. 4So. 72 Atl. 396. 
 isHayes v. State, 11 Ga. App. 371, 755. E. 523. 
 1*92 Ala. 262, 269, 9 So. 230. 
 "See §§ 474. 837 et seq. 
 
 332 
 
RECKIvESSNESS UNDER THE STATUTE § 453 
 
 In Com. V. Pierce," the Supreme Court by Mr. Justice Holmes, in an 
 opinion reviewing and citing a large number of cases, say concerning 
 recklessness : 
 
 "But recklessness in a moral sense means a certain state of 
 consciousness with reference to the consequence of one's act. 
 No matter whether defined as indifferent to what those conse- 
 quences may be, or as a failure to consider their nature or prob- 
 ability, as fully as the party might and ought to have done, 
 it is understood to depend on the actual condition of the indi- 
 vidual's mind with regard to the consequences, as distinguished 
 from mere knowledge of present or past facts or circumstances 
 from which some one or everybody else might be led to antici- 
 pate or apprehend them if the supposed act were done. * * * 
 The law deliberately leaves his idiosyncrasies out of account, and 
 peremptorily assumes that he has as much capacity to judge 
 and forsee consequences as a man of ordinary prudence would 
 have in the same situation." * * * 
 
 Later in the opinion the court say, referring to the above when ap- 
 plied to civil cases : 
 
 "There would seem to be at least equal reason for adopting it 
 in the criminal law, which has for its immediate object and task 
 to establish a general standard, or at least general negative 
 limits of conduct for the community in the interest of the safety 
 of all. * * * ju dealing with a man who has no special 
 training, the question whether his act would be reckless in a man 
 of ordinary prudence is evidently equivalent to an inquiry into 
 the degree of danger which common experience shows to attend 
 the act under the circumstances known to the actor. * * * 
 But it is familiar law that an act causing death may be murder, 
 manslaughter or misadventure according to the degrees of 
 danger attending it. * * * The very meaning of the fiction 
 of implied malice in such cases at common law was.that a man 
 might have to answer with his life for consequences which he 
 neither intended nor forsaw. * * * fjjg truth was that his 
 failure or inability to predict them was immaterial, if, under the 
 circumstances known to him the court or jury as the case might 
 be, thought them obvious. 
 
 "As implied malice signifies the highest degree of danger and 
 makes the act murder, so if the d_anger is less, but still not so 
 remote that it can be disregarded, the act will be called reckless, 
 
 1*138 Mass. i6s, 175. 
 
 333 
 
§ 454 RBCKI.ESSNESS UNDER THE STATUTE 
 
 and will be manslaughter, as in the case of an ordinary assault 
 * * * or careless driving."^'' 
 
 § 454- In its wider scope the section appears to include careless, 
 ignorant and fast driving, violations of road regulations, and in brief, 
 anything which menaces the common or individual safety of life or 
 limb. In another case the same court say : 
 
 "It is now as fully recognized that a man may commit murder 
 or manslaughter by doing otherwise lawful acts recklessly, as 
 that he may by doing acts unlawful for independent reasons from 
 which death independently ensues."^* 
 
 In Rex v. Wells,^* Lord Alverstone, C. J., said on this point in a motor 
 vehicle case: 
 
 "It seems to me it is quite impossible to say that the only 
 offence here is 'driving at such speed as is dangerous,' because 
 it is obvious that there is the offence of driving at a speed which 
 is dangerous to the public, or the offence of driving in a manner 
 dangerous to the public. I do not think you can treat the 
 words, 'at a speed' as surplusage, any more than the words, 'or 
 in a manner.' I also desire to point out that a person may be 
 going at quite a moderate speed and yet be driving in a manner 
 that is dangerous to the public — that is, swaying from side to 
 side or not having proper control of the machine." 
 
 § 455- Where driving according to law. — The fact that the auto- 
 mobile is in a place in the street where it has a right to be and that its 
 speed does not exceed the legal rate, does not relieve the driver of the 
 
 "See also Milwaukee, etc., R. v. Arms, 91 U. S'. 489; Corn. v. Hawkins, IS7 
 Mass. SSI, 32 N. E. 862; Aiken v. Holyoke St. Ry., 184 Mass. 269, 271, 68 N. 
 E. 238; Bjornquist v. Boston & A. R., i8s Mass. 130, 134, 7o N. E. S3; Banks 
 v. Braman, 188 Mass. 367, 74 N. E. S94; State v. Watson, 216 Mo. 420, nS S. 
 W. ion; People v. Scanlon, 132 N. Y. App. Div. S28, 117 N. Y. S. S7; State 
 V. Campbell, 74 Atl. 927 (Conn.) ; State v. Goetz, 83 Conn. 437, 76 Atl. 1000. 
 
 isCom. V. Parsons, 19S Mass. s6g, 81 N. E. 291. See Lewis v. Amorous, 3 Ga. 
 App. SO, 57, S9 S. W. 338. 
 
 "91 L. T. 98 (K. B.). 
 
 334 
 
RECKLESSNESS UNDER THE STATUTE § 4S6 
 
 duty of exercising care. In Feeny v. Wabash R. R.,^° Mr. Justice John- 
 son says: 
 
 "One of the elementary rules by which conduct is to be 
 measured imposes the duty on every one of observing reasonable 
 care and prudence while in the exercise of lawful right. What 
 is reasonable care largely depends on the peculiar circumstances 
 of the given situation, but in every case where we find that the 
 actor had at his command the means and reasonable opportunity 
 of avoiding the infliction of an injury to one imperilled by his 
 act, but wilfully, recklessly or even negligently refused to 
 acknowledge any obligation to the endangered person, we hold 
 him culpable in law, notwithstanding his plea that he was doing 
 what he had a lawful right to do or that the injured person had 
 negligently placed himself in the pathway of a force lawfully 
 employed." 
 
 § 456. Care after seeing danger insufficient. — An operator of an 
 automobile may be found guilty of reckless driving, in running into a 
 woman standing near a stationary automobile although after it was 
 possible to see her he does everything possible to avert the accident. 
 "Antecedent conduct may be found to be reckless even though all 
 possible care may be exercised after the specific danger is actually dis- 
 covered. Indeed a person might be guilty of reckless driving although 
 no one was upon the street."^^ 
 
 § 457. Public safety. — The expressions "safety of the public" and 
 "public safety" are taken to be synonymous. Their meaning in this 
 connection is well understood as expressing in general, the security 
 not only of the community at large, but also that of every member.^^ 
 The words "the lives or" being in the plural number appear to render 
 this conclusion free from doubt. Indeed, it has been held that the pro- 
 vision against reckless driving is equally violated even though ther-e be 
 no one actually endangered or even threatened. The English motor 
 vehicle law in this feature is not unlike our own, and the courts of that 
 cauntry have very clearly placed such a construction upon its language. 
 
 2'>i23 Mo. App. 427, 99 S. W. 477. 
 
 2iComm. V. Horsfall, 213 Mass. 232, 100 N. E. 362, Ann. Cas. A. 682. 
 
 "4 Words & Phrases Jud. Def., 3291, and cases cited. 
 
 335 
 
§ 457 RECKI^BSSNBSS UNDER THE STATUTE 
 
 In Troughton v. Manning, ^^ Lord Alverstone speaking for the King's 
 Bench, in a motor vehicle case, says : 
 
 "Nothing that I say must be supposed to support the view 
 that the driver of a motor car need not regard his obligations 
 under the statute where there is only one person in the road, 
 whether he is lawfully there or not, or whether he could or 
 could not get out of the way. I think the idea does prevail 
 among some motor drivers, that if they blow their horn they are 
 justified in going on at any rate of speed, and that people are 
 bound to get out of the way." 
 
 In Smith v. Boon,^* Lord Alverstone, C. J., also held that it was not 
 necessary that anyone should be in the immediate vicinity of the 
 dangerous driving, or endangered or even incommoded. And in May- 
 hew V. Sutton,^^ referring to Smith v. Boon, the same court held as 
 follows : 
 
 "To drive a motor car at the speed at which this one was 
 driven, may be, in my opinion, to drive it to the common danger 
 of passengers on the highway although no passenger was in im- 
 mediate danger. * * * j think it is clear that it is not neces- 
 sary to prove that there were passengers on the highway." 
 
 The same is as true of a motor cycle as of an automobile.^" 
 The legislature of Massachusetts seems to have had this point in 
 mind when it changed the phrasing of the motor vehicle law from 
 operation "so as to endanger the lives or safety of the public,"^' to 
 operation "so that the lives or safety of the public might be endan- 
 gered."^« 
 
 Attention is also directed to Sees 7 and 8, Chap. 52, Mass. Rev .Laws, 
 relating to riding or driving, where danger to the public "convenience" 
 is added to menace of the "public safety." Safety, meaning freedom 
 and immunity from harm and danger, guarantees to the traveler in 
 
 2892 L. T. 8ss. 
 
 2*84 L. T. N. S. 593- 
 
 2'!7iL. J. K. B. N. S. 46. 
 
 26King (Cahill) v. Divisional Justices, 2 Irish Reps. (K. B.) 698. 
 
 2'Act 1906, c. 412, sec. 4. 
 
 28Act 1909, c. 534, sec. 22. 
 
 336 
 
RECKI,fiSSNESS UNDER THE STATUTE § 45^ 
 
 pursuing his way either on foot or in any vehicle, and observing due 
 care for himself and the rights of others — 
 
 "a right to presume * * * that those who may lawfully be 
 using it" (the highway) "with himself will exercise a proper 
 degree of care."^' 
 
 § 458. Joint liability. — ^Where two or more persons agree to use 
 an automobile without permission and they ride together at a reckless 
 speed it is immaterial which one is driving. All are guilty of reckless 
 driving.'" 
 
 So it is no defense for one driving at unlawful speed that the car was 
 under the control of another unless the defendant can show he was 
 acting under duress.'"* 
 
 § 459. Questions for jury. — Each case must stand upon its own 
 particular facts, and those facts are for the jury or the trial judge, in the 
 absence of a jury. This is well settled law.'^ 
 
 It is also settled that the absence of due care in travel amounts to 
 negligence, and negligence may exist in varying degrees up to the point 
 of recklessness.'^ 
 
 III. Operating "Whilb Under the Influence of Intoxicating Liquor"" 
 460. Scope of treatment. 
 
 § 460. Scope of treatment. — No precise construction of the meaning 
 and effect of this sentence as a whole, is to be found among the authori- 
 ties. Its consideration will therefore involve a somewhat wider range 
 of examination than is necessary to that of subjects capable of more 
 exact definition in their application to the motor vehicle law. The pro- 
 vision naturally divides into two parts — the first as to what is intox- 
 
 29Hennessey v. Taylor, 189 Mass. 583, 586, 190S, 76 N. E. 224. 
 
 30State V. Davis, 88 S. C. 229, 70 S. E. 811, 34 L. R. A. N. S. 293. 
 
 soaGoodwin v. State, 63 Tex. Crim. App. 340, 138 S. W. 399. 
 
 'iSmith V. Wildes, 143 Mass. 556, 10 N. E. 446; Neff v. Wellesley, 148 Mass. 
 487, 20 N. E. hi; O'Brien v. Hudner, 182 Mass. 381, 65 N. E. 788; Hennessey 
 V. Taylor, 189 Mass. 583, 584, 76 N. E. 224; Gregory v. Slaughter, 124 Ky. 345, 
 99 S. W. 247. 
 
 «2See Chapter XXXIII. 
 
 ^'See this subject in Chapter XLVII, on Criminal Negligence. 
 
 337 
 22 
 
§ 461 EECKI^ESSNESS UNDER THE STATUTE 
 
 icating liquor, and the second, what constitutes being "under the in- 
 fluence" thereof. 
 
 A. WHAT IS AN INTOXICATING UQUOR? 
 
 461. The Massachusetts statute. 
 
 462. The words "spirituous" and "intoxicating." 
 
 463. Mixed liquors. 
 
 464. Cider. 
 
 465. Beer. 
 
 § 461. The Massachusetts statute and authorities are precise on 
 this feature. Revised L,aws,^* provides as follows : 
 
 "Ale, porter, strong beer, lager beer, cider, all wines, any 
 beverage which contains more than one per cent : of alcohol, by 
 volume, at 60 degrees Fahrenheit, and distilled spirits, shall be 
 deemed to be intoxicating liquor, within the meaning of this 
 chapter."^" 
 
 The statute is constitutional.'' No proof is necessary that any of the 
 kinds of liquor enumerated in the statute, is intoxicating. The fact 
 that a liquor falls within the included classes is enough." 
 
 s*Chap. 100, sec. 2. 
 
 ssThe course of legislation on this subject is reviewed in Com. v. McGrath, 
 18s Mass. I, 69 N. E. 340- 
 
 »»Com. V. Brelsford, 161 Mass. 63, 36 N. E. 677; Beer Co. v. Mass., 97 U. S. 
 25, 33; Foster v. Kansas, 112 U. S. 206. 
 
 s^Com. V. Snow, 133 Mass. 575; Cora. v. Whelan, 134 Mass. 210; Com. v. 
 Morgan, 149 Mass. 314, 317; Com. v. Brelsford, 161 Mass. 63, 36 N. E. 677; Com. 
 V. McGrath, 185 Mass. l, 69 N. E. 240. The question occurs whether the con- 
 cluding sentence of sec. 2, limits its application only to cases arising under 
 chap. 100, Rev. Laws. Chapter 100 is entitled generally "Of intoxicating liquors," 
 and though largely devoted to matters of license, yet contains general pro- 
 visions and expressions concerning intoxication and intoxicating liquor. Chap- 
 ter 212, entitled ""Crimes against chastity, morality, decency and good order," 
 provides in sees. 36 and 39 (Rev. Laws), for the punishment of persons found 
 in or convicted of intoxication by the voluntary use of "intoxicating liquor," 
 and appears to use those words as having no limited significance. Wherever 
 elsewhere in the statutes and public laws these words are employed, no abridge- 
 ment of the classification expressed in sec. 2 (chap. 100), is expressed or im- 
 plied. 
 
 The point does not seem to have appeared in the Massachusetts courts, but 
 in the large number and widely varying cases involving intoxicating liquor, which 
 
 338 
 
UNDER mthVtNCt OP LIQUOR § 462 
 
 § 462. "The words 'spiritous' and 'intoxicating' are not synony- 
 mous. There are intoxicating hquors which are not spirituous."^* The 
 word 'intoxicating' includes a larger class of cases than 'spirituous.' 
 The two bear the relation to each other of genus and species. All 
 spirituous liquors are intoxicating, but all intoxicating liquors are not 
 spirituous."'" Ordinarily, whether a substance or article comes within 
 a given description is a question of fact, but some facts are so obvious 
 and familiar that the law takes notice of them and receives them into 
 its own domain."*" 
 
 § 463. Mixed liquors. — "It is a matter of common knowledge that 
 alcohol is the intoxicating element in intoxicating liquor, that pure 
 alcohol is not used as a beverage, and that all intoxicating liquors that 
 are so used contain alcohol mingled with other things, particularly with 
 water. * * * The general words 'intoxicating liquor' * * * 
 would be satisfied by any of the well-known forms of distilled spirits 
 which are used as a beverage, and which contain alcohol mingled with 
 water and other substances."*^ 
 
 § 464. Cider. — ^Where the word "cider" is used in the statutes it 
 will be held to include all kinds of cider, whether fermented or unfer- 
 
 have been the subject of judicial consideration, no question of the general appli- 
 cation of sec. 2 appears to have been raised. After all, it is not the kind of 
 liquor any more than it is the place where the intoxication occurs, that is im- 
 portant. The point is the being under the influence of something which intoxi- 
 cates. The particular kind of liquor is significant. 
 
 Com. V. Conlin, 184 Mass. 196, 68 N. E. 270; Ford v. Breen, 173 Mass. 52, 53 
 N. E. 136. 
 
 It does not seem reasonable to suppose that the legislature in providing that 
 certain liquors shall be regarded as intoxicating, should have meant to describe 
 them as intoxicating only for the limited purpose of license and place of sale, 
 and as innocent in their influence, use and effect on the people of the Common- 
 wealth. As no other definition, or distinction or limitation exists concerning 
 the character of the liquors classed as intoxicating, the conclusion seems inevi- 
 table, that the section applies to the motor vehicle laws of the state. 
 
 *'Com. V. Livermore, 70 Mass. 20. 
 
 '»Com. V. Herrick, 60 Mass. 468. 
 
 ♦"Com. V. Marzynski, 149 Mass. 72, 21 N. E. 228; Com. v. Peckham, 68 Mass. 
 515; Com. V. Timothy, 74 Mass. 481. 
 
 *iCom. V. Morgan, 149 Mass. 314, 316, 20 N. E. 161; Intox. Liquor Cases, 
 2$ Kansas, 751, 767. 
 
 339 
 
§ 465 eecklsssness undue the statute 
 
 mented, or whether possessing intoxicating properties or is not intox- 
 icating.*" 
 
 § 465. Beer. — While the courts outside Massachusetts are not al- 
 ways in harmony concerning the meaning of the word "beer," still the 
 weight of authority seems to be to the effect that the word "beer" 
 without qualification and in its ordinary sense, imports a malt and in- 
 toxicating liquor and that in the absence of evidence to the contrary 
 it will always be so presumed.** 
 
 B. WHAT CONSTITUTES "BEING UNDER THE INFLUENCE" OF INTOXICATING LIQUOR^* 
 
 466. De^nitions. 
 
 467. "Intoxicate" defined. 
 
 4^. On the meaning of "influence." 
 
 469. As to what constitutes manifestations. 
 
 470. Medical authorities. 
 
 471. Intent of law. 
 
 472. Intoxication not an excuse. 
 
 473. Evidence as to intoxication. 
 474 Intoxication in negligence cases. 
 475. Under influence of drugs. 
 
 § 466. Definitions. — The answer to the question cannot be precisec 
 nor from the nature of the subject can it be altogether relieved of diffi- 
 culty. Uncertainty and vagueness are apparent in the decisions of the 
 courts as to the lines of distinction between "slight intoxication," "intox- 
 ication," "drunk," "very drunk," "totally inebriated," "under the influ- 
 ence of liquor," and the like. These distinctions and many finer ones 
 are drawn by every man, from standards which he has set for himself.*" 
 The degree of intoxication is a fact for the jury to determine.*' In 
 Commonwealth v. Presby,*^ Mr. Justice Hoar remarks: 
 
 "The fact of intoxication, though usually easy to ascertain, 
 is not a fact capable of demonstration or of ascertainment with 
 absolute certainty in most cases." 
 
 *2i7 Am. & Eng. Enc. of Law, 203, and cases cited in note 3 ; Com. v. Brothers, 
 158 Mass. 200, 206, 33 N. E. 386; Com. v. McGrath, 185 Mass. i, 69 N. E. 240. 
 See Com. v. Chappell, 116 Mass. 7, decided before cider was included in the 
 provision of the present law. 
 
 *«I7 Am. & Eng. Enc. of Law, 201, and cases cited. 
 
 **See § SCO- 
 
 ^^Elkin V. Buschner, 16 Atl. 102 (Pa.), 121 Pa. St. 
 *«Com. V. Hagenlock, 140 Mass. 125, 3 N. E. 36. 
 «'8o Mass. 65, 68. 
 
 340 
 
UNDER INFI<UENCE OF LIQUOR § 467 
 
 The weight of opinion and the inherent evidence appearing in the 
 sweeping character of the language of the section as a whole, lead to 
 the presumption that the expression "under the influence of intoxi- 
 cating liquor" as used in the motor vehicle act, is to be taken not only 
 to cover all tlie well known and easily recognized conditions and de- 
 grees of intoxication, but to reach back of even slight intoxication, and 
 include any abnormal mental or physical condition which may arise in 
 the operator of a motor vehicle, as the result of indulging in any degree, 
 or at all, in any. of those things described as intoxicating Uquors, as 
 tending to deprive him of that clearness of intellect and control of him- 
 self which he would otherwise possess. 
 
 § 467. "Intoxicate" defined. — Dictionaries are in substantial har- 
 mony on the definition of "intoxicate," in the respect of its being any 
 condition of undue or excessive excitement or stupefaction following 
 the use of strong drink.*' 
 
 It is conceived that a condition occasionally arises where a person 
 may be affected as the result of the use of an intoxicant, though he give 
 no outward and visible signs to the casual observer that he is drunk 
 or intoxicated in any degree. His condition is that of mental aberration, 
 and is an effect resulting from the agency or cause covered by the 
 statute.*" The courts seem to have followed the same general lines of 
 definition in these respects.^" 
 
 § 468. On the meaning of "influence" there is also a substantial 
 agreement of definition. The word is perhaps most aptly defined in 
 this connection in the Century Dictionary, as the "outgoing energy or 
 potency that produces effects (primarily internal) or affects, modifies 
 or sways by insensible or invisible means, that to which it is directed or 
 on which it operates." 
 
 § 469. As to what constitutes manifestations of the influence of 
 intoxicating liquor in its earlier stages, the general authorities include 
 increased activity or depression in the nervous and mental processes ; 
 removal of the habitual self-restraint that regulates one's actions ; re- 
 laxation of judgment which leads to want of mental control; blunts 
 
 ♦^Standard, Century and Webster's Dictionaries; Bouvier's Law Diet. 510. 
 **See Words & Phrases Jud. Def., 2209. 
 
 ^oSapp V. State, 116 Ga. 182, 42 S. E. 410; State v. Pierce, 65 Iowa 85; Elkins 
 V. Buschner, 16 Atl. 102 (Pa.), 121. 
 
§ 470 RfiCKLHlSSN^SS UNUER f&t SfAtUtfi 
 
 the powers of perception; impairs the judgment; begets a loss of pru- 
 dence, indiscretion, folly, readiness to run risks, to incur danger and 
 to be reckless, advancing generally to exhiliration or moroseness, bois- 
 terous mirth or the reverse, loquacity or unusual taciturnity, indistinct- 
 ness and confusion of ideas and an incapacity to grasp situations with 
 the discretion and conservatism usual to a man in his sober senses." 
 
 § 470. Medical authorities take much the same view. In a critical 
 examination of the influence of intoxicants. Dr. John J. Abel, concludes 
 as follows: 
 
 "We have seen that alcohol from the very first has a depress- 
 ant action for higher mental functions. Hence it is that in all 
 those avocations of life where keen senses, sharp attention, the 
 ready and immediate action of a clear judgment, or great con- 
 centration of mind are called for, alcohol in any form or amount 
 is injurious when taken during the performance of the duty in 
 hand."«=' 
 
 This quotation seems fairly to present the dominant thought and in- 
 tent of the legislature in using the language under consideration. 
 
 § 471. Intent of law. — It is well settled that the intent of a law be- 
 ing ascertained, the meaning follows."^ 
 
 The rule of construction has not been improved since Blackstone 
 said anno 1756°*: 
 
 'The fairest and most rational method to interpret the will 
 of the legislator is by exploring his intentions at the time when 
 the law was made, by signs the most natural and probable. And 
 these signs are either the words, the context, the subject matter, 
 the effects and consequences, or the spirit and reason of the 
 law."" 
 
 Bilnternational Encyclopedia; Chamber's Encyclopedia; Nelson's Cyclopedia; 
 People's Encyclopedia; Words & Phrases Judicially Defined. 
 
 ^^Physiological Aspects of the Liquor Problem, p. 165. 
 
 ^'Bacon's Abr. Statute i; Holmes v. Carley, 31 N. Y. 290; Eyston v. Studd, 
 2 Plow. 46s (Eng.) ; Intox. Liquor Cases, 25 Kansas, §24, State v. Kelly, 
 47 Vermont 294. 
 
 e*i Comm. 59. 
 
 "i'See State v. Goodwin, 169 Ind. 265, 82 N. E. 4S9. 
 
 342 
 
UNDER INPtUENCE OP LIQUOR. § 472 
 
 § 472. Intoxication not an excuse."" — A condition of intoxication 
 cannot be pleaded in excuse or exculpation. In one case the Massa- 
 chusetts Supreme Court say : 
 
 "Although the use of intoxicating liquor does to some extent 
 blind the reason and exasperate the passions, yet as a man vol- 
 untarily brings it upon himself, he cannot use it as an excuse or 
 justification or extenuation of crime. A man because he is in- 
 toxicated is not deprived of any legal advantage or protection, 
 but he cannot avail himself of his intoxication to exempt him 
 from any legal responsibility which would attach to him if 
 sober."' 
 
 Following the doctrine in the case cited, in a case where momentary 
 insanity produced by intoxication was contended in excuse for acts com- 
 mitted, it is said : 
 
 "It is too well settled to be questioned, that intoxication is not 
 an excuse or justification or extenuation of a crime.""* 
 
 In Com. V. Parsons," the court by Mr. Justice Sheldon say : 
 
 "While drunkenness is no excuse or mitigation of a crime com- 
 mitted under its influence, it may yet be true that if one who 
 has committed a homicide which otherwise would be murder in 
 the first degree was so far overcome by intoxicating liquors as 
 to be mentally incapable of deliberate premeditation, he cannot 
 have acted with deliberately premeditated malice aforethought 
 and so cannot be convicted of murder in the first degree upon the 
 ground of such malice.""" 
 
 § 473. Evidence as to intoxication. — A witness may give his judg- 
 ment whether a person was intoxicated at a given time."^ 
 
 66See § 1500. 
 
 BTCora. V. Hawkins, 69 Mass. 466 (3 Gray, 1855) ; Reg. v. Jones, 11 Cox Crim. 
 Cas. 54S (Eng.). 
 
 "sConi. V. Malone, 114 Mass. 298. See also Cora. v. Gilbert, 165 Mass. 47, 
 42 N. E. 336; Com. V. Parsons, 195 Mass. 560, 567, S7i, 81 _N. E. 291. See 
 Rutherford's Inst. B. 1. c. XVIII, s. 11. 
 
 »»I9S Mass. 560, S7I, 81 N. E. 291, 567. 
 
 «»See also People v. Pearne, 118 Cal. 154, 50 Pac. 376. 
 
 8iPeople V. Eastwood, 4 Kernan 562; Com. v. Sturtivant, 117 Mass. 122, 134; 
 Edwards v. Worcester, 172 Mass. 105, 61 N. E. 447; Abbott's Trial Brief, 441. 
 
 343 
 
§ 473 KeCKI,^SSNESS UNDER THE STATUTE 
 
 In Com. V. Sturtivant,"^ it is said concerning the competency of wit- 
 nesses to state their conclusions regarding matters open to common 
 observation : 
 
 "In this connection may be noticed a large class of cases, 
 where from certain appearances more or less difficult to de- 
 scribe in words, witnesses have been permitted to state their con- 
 clusions in relation to indications of disease or health, and the 
 condition or qualities of animals or persons. * * * a wit- 
 ness may also give his judgment whether a person was intoxi- 
 cated at a given time."'^ 
 
 In People v. Eastwood,'* cited in the opinion last quoted, the New 
 York Court of Appeals say ; 
 
 "A witness was accordingly asked whether from the prisoner's 
 conduct and deportment, and other facts connected with them, 
 he was (in the judgment of the witness) to any considerable 
 extent under the influence of intoxicating liquors. Objection 
 was taken that it was not competent for the witness to state his 
 opinion; the question was on this account excluded, and the 
 defendant excepted. * * * The objection was accordingly 
 to the form of the question, as if it sought the witness's opinon. 
 If the opinion of the witness had been asked as to facts not within 
 his own observation, the objection would have been good. 
 
 * * * The inquiry was not intended to bring out an opinion, 
 but to lead the witness to answer to a fact which he saw. If 
 the question had been (as it might have been) direct, 'what was 
 the condition of the prisoner as to sobriety at that time?' it 
 probably would have been answered * * * without objec- 
 tion. It did not become incompetent by adding the words, "in 
 your judgment" while the judgment was restricted to what the 
 witness saw. A child six years old may answer whether a man 
 (whom it has seen) was drunk or sober; it does not require 
 science or opinion to answer the question, but observation merely. 
 
 * * * Whether a person is drunk or sober, or how far he 
 was affected by intoxication,'^^ is better determined by the direct 
 answer of those who have seen him than by their description of 
 his conduct. Many persons cannot describe particulars, if their 
 
 82II7 Mass. 122, 133- 
 
 «>Citing People v. Eastwood, 4 Kernan 562. 
 
 M4 Kernan (N. Y.) 562. 
 
 BsThe italics are by the author of this book. 
 
 344 
 
UNDER INFLUENCE OF LIQUOR § 474 
 
 testimony were excluded, great injustice would frequently en- 
 sue." * * * 
 
 As grounds for the belief that a person was intoxicated at a particular 
 time, the witness is permitted to testify to the odor of the person's 
 breath, his appearance, actions, and to such other circumstances as oc- 
 cured at the time that aided in the formation of his conclusion/" 
 
 Evidence that just prior to an accident the defendant's party had 
 stopped at public resorts where they partook of intoxicating liquors may 
 be sufficient to show that the defendant was intoxicated at the time of 
 the accident."^ 
 
 § 474. Intoxication in negligence cases. — In civil actions for dam- 
 age and the like, intoxication at the time of the occurrence of the act 
 complained of, authorizes the jury in connection with other circum- 
 stances in finding a verdict for negligence, incompetency or reckless- 
 ness."* 
 
 § 475. Under influence of drugs. — Qiicere, whether the Act would 
 apply at all to one laboring under the influence of such drugs as opium, 
 morphine, chloral, cocaine, absinthe, and the like, if the effects produced 
 were similar to those of intoxicating liquor."" 
 
 sopeople V. French, 138 N. Y. Supp. 337; The Mexico, 78 Fed. Repr. 655 N. 
 Y.; Wabash v. Prast, loi 111. App. 167; Moore on Facts, 388; McFern v. Gard- 
 ner, 121 Mo. App. II, 97 S. W. 972. 
 
 "'See Hartj'e v. Moxley, 235 111. 164, 8s N. E. 216. 
 
 "^McPhee v. Scully, 163 Mass. 219, 39 N. E. 1007 ; 40 I<. R. A. 143, and cases 
 cited. Lincoln Taxicab Co. v. Smith, 88 Misc. 9, 150 N. Y. S. 86; McFern v. 
 Gardner, 121 Mo. App. i, 97 S. W. 972. 
 
 "»State V. Kelly, 47 Vt. 296. 
 
 345 
 
CHAPTER XXI 
 
 CRIMES AND MISDEMEANORS 
 
 § 476. In general. 
 
 477. Definition and classification of crimes. 
 
 478. Theft of automobile. 
 
 479. When theft of automobile is burglary. 
 
 480. Special laws governing theft of automobile. 
 
 481. Assault on toll-keeper. 
 
 481A. Warning against police traps. 
 481B. Making Duplicate Number Plates. 
 
 § 476. In General. — ^A brief review of the general law concerning 
 crimes and misdemeanors will serve to throw light upon the legal 
 effect of the provisions for the enforcement of motor vehicle laws. 
 The Massachusetts statutes are used as an example of general laws. 
 
 The Constitution of Massachusetts, like that of the nation, secures 
 freedom from interference with personal liberty and property, ex- 
 cept by due process of law.^ Every restraint of the liberty of a 
 person is in derogation of right, and if not justified by the law is in 
 the eye of the law, a false imprisonment.^ 
 
 The law zealously guarding freedom from arrest as a principal foun- 
 dation of liberty, it follows that the power to impose restraint on 
 others must be exercised in strict accordance with its due processes, 
 or, as has been already pointed out, it becomes false imprisonment and 
 subjects the arresting officer himself to punishment.* 
 
 § 477. Definition and Classification of Crimes. — ^A crime is a 
 wrong which the government notices as injurious.* In the broadest 
 sense, any infringement or violation of law is criminal and the offense 
 is "a crime."" Technically it is defined as an act committed or omitted 
 in violation of a public law either forbidding or commanding it." 
 
 iConst. Part I, sees. X, XII, XIV. 
 
 2Com. V. Nickerson, 87 Mass. 518; Brock v. Stimson, 108 Mass. S21. 
 
 sPhillips V. Fadden, 125 Mass. 202. 
 
 ♦United States v. Lee Huen, 118 Fed. Repr. 445. 
 
 »In re Howard, 26 Vt. 208. 
 
 «Words & Phrases Jud. Def., 1736. 
 
 346 
 
CRIMES AND MISDEMEANORS § 477 
 
 In Creeden v. Boston & M. R. R. Co.,'* the court say: 
 
 " 'Criminals' is a word of broad significance, and includes 
 those who may have committed the most trifling infractions of 
 a penal statute, as well as those guilty of the most heinous of- 
 ,fences. It obviously describes a large number of persons, whom 
 a constable would have no right to arrest without a warrant." 
 
 The distinction between the degrees of wrong, is commonly described 
 by the words "felony" and "misdemeanor." The Massachusetts statute 
 draws the line as follows: 
 
 "A crime which is punishable by death or imprisonment in 
 the State prison is a felony. All other crimes are misde- 
 meanors."^ 
 
 Offences against the motor vehicle law ordinarily are within the 
 class of misdemeanors.' 
 
 For the purpose of classification, crimes are grouped under two 
 general heads (i) mala in se, things wrong in themselves, and (2) 
 mala prohibita, things prohibited but not otherwise wrong. 
 
 In Com. v. Adams,' Mr. Justice Endicott remarks : 
 
 "Acts mala in se include in addition to felonies, all breaches 
 of public order, injuries to person or property, outrages upon 
 public decency or good morals, and breaches of official duty, 
 when done wilfully or corruptly. Acts mala prohibita in- 
 clude any matter forbidden or commanded by statute but not 
 otherwise wrong. * * * It is within the last class that the 
 city ordinance of Boston falls, prohibiting driving more than six 
 miles an hour in the streets."" 
 
 Acts mala prohibita, such as violations of speed limitations and local 
 ordinances, do not imply any moral turpitude.^^ Wherefore it becomes 
 evident that motor vehicle offences of the classes ordinarily experienced, 
 fall within mala prohibita, and as such are often called "statutory 
 
 *ai93 Mass 283, 79 N. E. 344. 
 
 ^Chap. 215 Rev. L,aws, sec. i. 
 
 'Com. V. Sherman, 191 Mass. 439, 440, 78 N. E. 98. 
 
 *ii4 Mass. 323. 
 
 '■"See also Wharton on Homicide, 3d ed., sec. 213. 
 
 ^^See V. Wormser, 129 N. Y. App. Div. 596, 113 N. Y. S. 1(^3. 
 
 347 
 
§ 47^ CRIMES AND MISDEMBANORS 
 
 crimes," though according to the character of the offence and the 
 degree of injury inflicted they may become mala in se and felonies.^^ 
 
 § 478. Theft of Automobile. — The theft of an automobile is in 
 some states simply a misdemeanor.^^ 
 
 Although declaring the wonderful taking of property to be grand 
 larceny is improper as the crime is not grand larceny, still these words 
 may be stricken out as surplusage and the statute sustained as simply 
 describing an offense.^* 
 
 One cannot be convicted of larceny with intent to "appropriate" an 
 automobile on evidence that the accused broke into a barn where it was 
 stored at night, drove it fifty or sixty miles, and brought it back after 
 the ride the same night to within plain view of the owners premises 
 and left it there." 
 
 § 479. When Theft of Automobile is Burglary. — ^A conviction 
 of larceny from the house may be obtained where the defendant took 
 automobile tires from the top of a showcase in a public garage.^" 
 
 Evidence that the accused was seen trying to crank a car which 
 had been taken out of a garage is evidence of burglary and not merely 
 of larceny.^' 
 
 § 480. Special Lavtrs Governing Theft of Automobile. — Where 
 there is a special statute covering theft of an automobile a conviction 
 cannot be obtained under a general statute applying to personal prop- 
 
 i^Banks v. Braman, 188 Mass. 367, 369, 74 N. E. S94 ; Com. v. Pierce, 138 Mass. 
 i6s; Com. V. Hawkins, 157 Mass. 551, 553; Com. v. Parsons, 32 N. E. 862, 19s 
 Mass. 569. See § 1470, Criminal Negligence, for the consideration of the bearing 
 of these cases on Com. v. Adams, 114 Mass. 323. 
 
 i^The theft of an automobile may be a misdemeanor, not triable in the dis- 
 trict court. Greenwood v. State, Tex. Crim. App., 174 S. W. 1079. Evidence 
 considered in a prosecution for theft of an automobile. People v. Hammond, 
 177 Mich. 416, 143 N. W. 244. It may be proper to permit the jury to 
 take a view of the stolen machine. People v. Cahill, 11 Cal. App. 685, 106 
 Pac. 115. For a case where the plaintiff refused to accept the reward offered 
 for recovery of a stolen automobile as too small and could not thereafter re- 
 cover the amount offered, see Hart v. Hopwood, 163 App. Div. 151 N. Y. S. 871. 
 
 i*Singleton v. Com., 164 Ky. 243, 173 S. W. 372. Pleading in civil cases, see 
 post, § II. 
 
 i^Smith V. State, 62, 1912, Tex. Crim. App. 146 S. W. 547. 
 
 '«Brown v. State, 13 Ga. App. 81 S. E. SPO- 
 
 ^'McConnor v. Henkel, 226 U. S. S20, 33 Sup. Ct. Rep. 146. 
 
 348 
 
CRIMES AND MISDEMEANORS ' § 481 
 
 erty over a certain amount where an automobile is stolen.^' A statute 
 declaring it to be larceny to take an automobile without permission is 
 not void as local or special legislation." 
 
 A statute providing for imprisonment from two to five years for 
 taking a motor vehicle and running it without the owner's permission 
 is not void as imposing a cruel and unusual punishment. Such persons 
 are known to endanger the public.^" 
 
 § 481. Assault on Toll keeper. — ^^The mere fact that a toll keeper 
 tries to stop an automobilist and demands an illegal fee does not 
 warrant automobilists in committing a breach of the peace in order 
 to force a passage.^^ 
 
 § 481A. Warning against Police Traps. — So-called "Police 
 Traps," maintained for the purpose of detecting violations of motor 
 vehicle laws and regulations, have become known everywhere and with 
 their increase have come about a variety of methods of warning the un- 
 wary driver of the existence of such devices. Question has been raised 
 as to whether such warnings do not amount to an obstruction of officers 
 in the discharge of their duty. It is perfectly conceivable that condi- 
 tions might exist where such is the case, or where the person, giving the 
 warning might himself through collusion with ofifenders, be particeps 
 criminis in the offense, — thus, if several persons united to conduct a 
 motor vehicle race upon a highway and sent out men, also in the con- 
 spiracy, to entice away or mislead the officers of the law. The question 
 appears not to have been raised in the American courts. It was, how- 
 ever, rather fully discussed in England, in the case of Bastable v. Little, 
 Law Reps. K. B., 1907, Vol. i, p. 59, quoted somewhat at length because 
 of its importance. The conclusion seems to be that warnings of so- 
 called police traps are lawful when not collusive or given as part of an 
 unlawful conspiracy.^^ 
 
 In this case there was an information against the defendant for 
 wilfully obstructing the police. 
 
 Facts — The police were operating a "trap" for the purpose of 
 "observing and timing the speed of motor cars * * * that such 
 
 ^'Sparks v. State, Tex. Crim. App.,- 174 S. W. 351. 
 i^Singleton v. Com., 164 Ky. 243, 175 S. W. 372 
 '^"Singleton v. Com., 164 Ky. 243, 175 S. W. 372. 
 "^Com. V. Rider, 29 Pa. Super. Ct. 621. 
 ^'As to the use at police traps of stop watches, see § 1643. 
 
 349 
 
§ 481A CRIMES AND MISDEMEANORS 
 
 cars should not be driven at an unlawful rate of speed or other- 
 wise in contravention" of the English motor car acts. The de- 
 fendant "by means of signals made with his hand, and with a 
 sheet of newspaper, and in one instance by calling out the words 
 'police trap,' warned the drivers of motor cars which he saw ap- 
 proaching the said measured distance, that the police were on 
 the watch." During the space of 40 minutes the defendant 
 warned upwards of a dozen vehicles, and this was the gravamen 
 of the charge. 
 
 The magistrates held "that the acts of the respondent did not 
 in law constitute an obstruction of the police constables in the 
 execution of their duty * * * and dismissed the information," 
 but stated the case for the opinion of the appellate court. 
 
 The case was heard by Lord Alverstone, C. J., and Judges 
 Ridley and Darling, each of whom delivered opinions, which are 
 reproduced in full as follows : 
 
 Lord Alverstone, C. J., "In my opinion this case is not free 
 from difficulty, and I am, for my own part, by no means satis- 
 fied that no offense was committed by the respondent. If the 
 case had contained allegations that a breach of the law had been 
 committed by any of these motor cars, and that there was a 
 proximity of detection, the case would be different, but I think 
 that the magistrates were right in holding that on the facts be- 
 fore them no offense was disclosed against sec. 2 of the Preven- 
 tion of Crimes Amendment Act, 1885. That section provides 
 that the provisions of sec. 12 of the Prevention of Crimes Act, 
 1871, which deals with assaults on constables when in the exe- 
 cution of their duty, shall apply to all cases of resisting or 
 wilfully obstructing any constable when in the execution of his 
 duty. I think that the section points to something done in re- 
 gard to the duty which the constable is performing, and does 
 not apply to what is done or said to third parties. To take an 
 instance which was put during the argument; suppose a party 
 of men are engaged in the offense of night poaching, and a 
 person passing near warns them that the police are coming, I 
 think it is clear that that could not be held to be an offense 
 within this section. We must not allow ourselves to be warped 
 by any prejudice against motor cars, and so to strain the law 
 against them. We are asked to infer from the fact that all the 
 motor cars, on receiving the warning, slackened their speed, that 
 all or most of them were then exceeding the speed limit and 
 breaking the law. I do not think that we can draw any such in- 
 ference. The magistrates only say that in consequence of the 
 warning the drivers may have been enabled to avoid traveling at 
 an illegal speed past the policemen. They do not say that as a 
 fact they were at the time they received the warning traveling at 
 
 350 
 
CRIMES AKD MISDEMEANORS § 481A 
 
 an illegal rate of speed. I cannot draw the inference that the 
 cars were breaking the law when they received the warning. I 
 also attach importance to the fact that there was a complete ab- 
 sence of any evidence of conspiracy or agency on the part of the 
 respondent and the drivers of the cars. Under the circumstances, 
 therefore, I think that the magistrates came to a right conclusion, 
 and that this appeal must be dismissed." 
 
 Ridley, J. "I am of the same opinion. I think that in order 
 to constitute an oflfense under the section there must be some 
 interference with the constable himself by physical force or 
 threats. He must be either physically obstructed in doing his 
 duty or at least threats must be used to prevent him from doing 
 it." 
 
 Darling, J. "I do not differ from the judgments that have 
 been pronounced, but I do not feel inclined to say much more 
 than that. If the case had stated definitely that any of these 
 cars when approaching the measured mile was going at an il- 
 legal rate of speed, and that the warning prevented the police 
 constables from taking the real pace of the car as it passed, 
 and so securing the conviction of the driver, I should desire to 
 reserve my opinion whether the respondent had committed an 
 offense under the section, although no physical obstruction of 
 the police constables in the execution of their duty had taken 
 place. In my opinion it is quite easy to distinguish the cases 
 where a warning is given with the object of preventing the 
 commission of a crime, from the cases in which the crime is 
 being committed and the warning is given in order that the 
 commission of the crime may be suspended while there is dan- 
 ger of detection, with the intention that the commission of the 
 crime should be re-commenced as soon as the danger of detec- 
 tion is past. 
 
 "I do not wish to be understood to say that in order that there 
 should be an offense under this section there must be some 
 physical obstruction of the constable. In my opinion a police- 
 man who is seeking information which might lead to the con- 
 viction of the perpetrators of a crime who was wilfully misled 
 by false information would be obstructed in the execution of 
 his duty, and I should not like to say that the person who so 
 wilfully misled him was not committing an offense within the 
 meaning of the section." 
 
 Lord Alverstone, C. J. "I also would wish to guard myself 
 from saying that the only obstruction contemplated by this sec- 
 tion is a physical obstruction." 
 
 351 
 
§' 4^1 B CRIMES AND MISDEMEANORS 
 
 § 481 B. Making Duplicate Number Plates. — In the case of Com- 
 monwealth V. David,^' the state law relating to automobiles provided 
 that no such vehicle should be operated "until the operator thereof 
 should have procured a license," and that while his car is running, "tags" 
 be displayed which are issued to operators with the license. The de- 
 fendant was arrested for operating without displaying the "tags." He 
 showed that he had had made a "duplicate set of tags," and had loaned 
 them to a friend who was running the car at the time of the commission 
 of the offense. Mr. Justice Beitler says : 
 
 "After a careful study of the case, I am; with reluctance, 
 forced to the conclusion that the Commonwealth has made out 
 no case. * * * I can find nothing in the Act of 1905 which in- 
 flicts any penalty upon a licensee who makes or has made a 
 duplicate set of tags, nor any penalty for loaning either the 
 original or the duplicate set." 
 
 23is Penn. Dist. Reps. 793, 794. 
 
 352 
 
CHAPTER XXII 
 
 CRIMINAL PLEADING AND PRACTICE 
 
 §482. Indictment or information. 
 
 483. "Jurisdiction of the court." 
 
 484. Accused to be informed of the charge. 
 
 485. Pleading "nolo contendere." 
 
 486. Conviction. 
 
 487. Offences that may be punished twice. 
 
 488. Fines, Penalties and forfeitures, in misdemeanors. 
 
 489. A "fine" described. 
 
 490. Penalties and forfeitures. 
 
 491. Forfeitures by way of damages. 
 
 492. Appeal. 
 
 493. Summary trial. 
 
 § 482. Indictment or Information. — The usual rules of criminal 
 practice govern indictments for crimes connected with motor vehicles. 
 An information for speeding in violation of the statute must include 
 the elements set forth in the statute, as excessive speed "for a distance 
 of one fourth of a mile," where this is specified in the statute.^ 
 
 An indictment is not defective in not alleging that the automobile 
 was not included in certain classes of motor vehicles which are specially 
 exempted by the terms of the statute requiring registration as such 
 exemption should be interposed as a matter of defense.^ 
 
 An indictment alleging malicious mischief in the injury of an auto- 
 mobile substantially in the language of the statute is sufificient.^ 
 
 In an indictment for failing to signal and frightening animals it is 
 not necessary to allege how the animals became frightened nor the 
 manner in which the driver was injured.* An indictment charging that 
 the defendant was guilty of careless, reckless and culpably negligent 
 conduct, resulting in the death of a child is sufficient to charge man- 
 slaughter." 
 
 iPeople V. Winston, 151 App. Div., 139 N. Y. S. 1072; People v. Payne, 129 
 N. Y. S. 1007 (Co. Ct.). 
 2Ruggles V. State, 119 Md. 1913, 87 Atl. 1080. 
 sState V. Davis, 88 S. C. 229, 70 S. E. 811, 34 L. R. A. N. S. 295. 
 ^Holland v. State, 11 Ga. App. 769, 76 S. E. 104. 
 "State V. Watson, 216 Mo. 120, 115 S. W. loii. 
 
 353 
 
 23 
 
§ 483 CRIMINAL, PLEADING AND PRACTICE 
 
 An indictment will lie for conspiracy to use the automobile of another 
 without his permission as such use constitutes an unlawful act although 
 not an injury to the public or forbidden by statute.' 
 
 Although a penalty is payable to a town where the clear intent is to 
 protect the public the information should be brought in the name of 
 the state.' 
 
 A complaint in the words of the statute for negligent operation of 
 an automobile must set out the particular act of negligence relied on, 
 and must allege the name of the street where the act took place where 
 the act is a crime only when committed on a public highway.'* 
 
 § 483. "Jurisdiction of the court."-^In the trial of all causes 
 ranging from a minor infraction of the law to a capital offence, and in 
 civil actions of all kinds, the question of the jurisdiction of the court 
 is one of prime consequence. In Hopkins v. Commonwealth,' Chief 
 Justice Shaw says upon this point: 
 
 "The word 'jurisdiction' (jus dicere) is a term of large and 
 comprehensive import, and embraces every kind of judical 
 action upon the subject matter, from finding the indictment to 
 pronouncing the sentence. * * * To have jurisdiction is to 
 have power to inquire into the fact, to apply the law, and to de- 
 clare the punishment, in a regular course of judicial proceed- 
 ings." 
 
 To this description may be added, the possession of power to enforce 
 the execution of what has been decreed.® 
 
 At section 108, it is said by the author of Murfree's Justice's 
 Practice : 
 
 "It is a well-known distinction between courts of general 
 and those of limited jurisdiction, that the former is presumed to 
 be acting within the jurisdiction until the contrary appears. 
 * * * In the case of a court of limited jurisdiction there is no 
 such presumption." 
 
 «State V. Davis, 88 S. C. 229, 70 S. E. 811, 34 L. R. A. N. S. 295. 
 
 'Com. V. Juander, 18 Pa. Dist. R. 973. 
 
 '"State V. Aaron (Vt. 1916), 97 Atl. 659. 
 
 844 Mass. 460, 462. 
 
 »Matter of Weigel, 17 La. Ann. 70, 71; Murfree's Justice's Practice, sec. 106. 
 
 354 
 
CRIMINAL PI<]JADING AND PEACTICB § 484 
 
 "As justice's courts are courts of limited jurisdiction, the facts 
 which give them jurisdiction must appear upon the record, no pre- 
 sumptions are made in favor of it" (lb. 107). "Any act of a court 
 which is beyond its jurisdiction, is null and void of no effect what- 
 ever." (lb. no). And "it is a rule without an exception that sum- 
 mary jurisdiction must be strictly followed and all presumptions are 
 against such jurisdiction." (lb. 113). 
 
 In People v. DeGrafif,^" the case turned upon a question of jurisdic- 
 tion, and the defendant motorist was discharged, the justice's judg- 
 ment being declared null and void as the fine imposed was beyond the 
 jurisdiction of the court. 
 
 Where the automobile laws give a justice of the peace power to 
 fine or imprison "or both" and such authority exceeds the consti- 
 tutional power of the justice the latter has no authority whatever.^"^ 
 A juvenile court will not ordinarily have jurisdiction of a complaint 
 charging an adult with running over a child.^^ Where a justice of the 
 peace had no authority to try an offense under the automobile law on 
 appeal from his decision an indictment must be found before he can be 
 tried in the superior court.^' 
 
 A special law governing jurisdiction over criminal complaints against 
 motorists is repealed by a later general law inconsistent with it.^* 
 
 § 484. Accused to be informed o£ the charge.^^ — In People v. 
 Ellis,^° the defendant was arrested under the automobile act of 1903, 
 and the conviction was sought to be upheld under another law. Mr. 
 Justice McLaughlin, in reversing the judgment, says: 
 
 "Before a person can be legally convicted of a crime, he is 
 entitled to be informed of precisely the charge which is made 
 against him, to the end that he may properly defend himself. 
 (People V. Dumar, 106 N. Y. 502 ; People v. Stark, 136 id. 538). 
 Defendant was charged, tried and sentenced for violating the 
 Act of 1903. His defence was directed to showing that he was 
 not guilty of such violation. Had he been charged with the 
 
 i»io7 N. Y. Supp. 1038, (Co. Ct.). 
 "State V. McAdden, N. C, 77 S. E. 298. 
 '^People V. Zmudzinski, 141 N. Y. S. S42. 
 Instate V. McAdden, 162 N. C. 575, 77 S. E. 298. 
 "Ruggles V. State, 119 Md., 87 Atl. 1080. 
 ^^See § 494 et seq, Enforcement. 
 i«N. Y. App. Div. 471. 
 
 35S 
 
§ 4^5 CRIMINAI, PLEADING AND PRACTlCIi 
 
 commission of another crime, viz., violating section 666 of the 
 Penal Code, we are unable to say what defence he would have 
 made. He would have had the right to prove that an ordin- 
 ance had been passed by the city permitting him to run an 
 automobile at the rate of speed at which he was running his 
 at the time he was arrested, or to question the constitutionality 
 of this section. But it is useless to speculate what defences he 
 might have made, inasmuch as he was not afforded an oppor- 
 tunity to make any defence under this section, and manifestly 
 cannot now be convicted of the crime specified therein." 
 
 § 485. Pleading "nolo contendere." — ^The plea nolo contendere — 
 "I do not care to dispute it,"^^ may perhaps be here appropriately 
 referred to. In Buck v. Commonwealth,^' it is spoken of by Mr. 
 Justice Paxon as "a mild form of pleading guilty." In United States 
 V. Hartwell," Mr. Justice Clifford held that there is no difference be- 
 tween this plea and the plea of guilty, with regard to all the pro- 
 ceedings in the indictment. In Commonwealth v. Horton,^" the court, 
 by Mr. Justice Putman, said : 
 
 "The plea of nolo contendere is an implied confession of the 
 offence charged. It is discretionary with the court to re- 
 ceive it or not. * * * gyt ^q far as the Commonwealth is 
 concerned, the judgment of conviction follows. * * * And it 
 is not necessary that the court should adjudge that the party was 
 guilty, for that follows by necessary legal inference from the 
 implied confession. But the court thereupon proceeds to pass 
 the sentence of the law affixed to the crime."^^ 
 
 It has been for many years the practice in many of the lower courts 
 in Massachusetts not to receive a plea of "nolo in automobile cases. 
 
 § 486. Conviction. — In motor vehicle cases a conviction has a 
 two-fold significance. Primarily, of course, it fastens upon the culprit 
 the character of a breaker of the law in that instance, and subjects 
 him to the penalty of such breach in the discretion of the court acting 
 
 !'■ Anderson's Diet, of Law. 
 
 18107 Pa. 486, 489. 
 
 i»26 Fed. Cas. No. 15318, p. 196. 
 
 2026 Mass. 207. 
 
 2iCom. V. IngersoU, 145 Mass. 381, 14 N. E. 449; White v. Creemer, 175 Mass. 
 567, 568, 56 N. E. 832; Com. V. Gorham, pg Mass. 420, 422; Munkley v. Hoyt, 
 179 Mass. 108, 60 N. E. 413- 
 
 356 
 
CRIMINAI, PI,^ADING AND PRACTICE § 4^7 
 
 within the limitations prescribed by the statute. In addition, in these 
 cases, it may, and in some instances must, subject the offender to the 
 loss of his license or certificate of registration or both. As to what 
 amounts to a "conviction" and the duty of the licensing authority in 
 regard thereto, they will be found elsewhere considered.-^* 
 
 § 487. Offences that may be punished twice.** — The constitution 
 of the United States declares that : 
 
 " No person shall be subject for the same offence to be twice 
 put in jeopardy of life or limb." (Amendment, Article V.) 
 
 There is a class of cases, however, that, in the absence of statute to 
 the contrary, may be made both state and municipal offences, such as 
 fast and careless driving. State v. Cowan,** "The same act may 
 constitute several crimes or misdemeanors and the trial and punishment 
 of one will be no bar to the prosecution of another growing out of 
 the same act." After making the remark just quoted, Mr. McQuil- 
 lin,''°says : 
 
 "The doctrine generally supported may be thus stated: 
 That the single act being made punishable both by the state law 
 and by the municipal ordinance of the place wherein it was 
 committed constitutes two distinct and several offences ; an of- 
 fence against the state and an offence against the municipal- 
 ity. The purpose of the ordinance is to provide a mere police 
 regulation for the enforcement of good order and quiet within 
 the limits of the corporation; the state law has a more en- 
 larged object in view, namely the maintenance of the peace and 
 dignity of the state. The offences, although growing out of 
 the same act, are distinguishable and wholly disconnected, and 
 the prosecution at the suit of each proceeds upon a different 
 hypothesis."** 
 
 **See § 141 et seq., revocation of license; Com. v. Gorham, 99 Mass. 420, 
 422; Munkley v. Hoyt, 179 Mass. 108, 60 N. E. 413. 
 
 *'See § 1737, Damages; and § 1762, Punitive; also § 442, Speeds, concurring 
 penalties. 
 
 **2g Mo. 33. 
 
 ^''Municipal Ordinances, sec. Sio. 
 
 *»See also Fox v. The State of Ohio, 5 How. Reps. (U. S. S. Ct.) 410, 420; 
 Moore v. The State of Illinois, 14 How. Reps. (U. S. S. Ct.) 13, 20. To the 
 same effect is Blathley v. Moser, 15 Wend. Reps. (N. Y.) 215, wherein Mr. Chief 
 Justice Savage distinguishes the case of Commonwealth v. Cheney, 6 Mass. 347, 
 decided in 1836, pointing out that the Massachusetts statute then existing con- 
 cerning the sale of liquors, particularly provided that if the offence is prose- 
 
 357 
 
§ 488 CRIMINAL PLEADING AND PRACTICB 
 
 Where one has been convicted for excessive speeding he may there- 
 after be arraigned for the same act charged as a second offense,^' but 
 if he waives examination on a charge of violating the motor vehicle 
 speed law he may not be informed against on the same charge as a 
 second ofifence.^* 
 
 § 488. Fines, penalties and forfeitures, in misdemeanors.^^ 
 — ^A distinction is to be noted between a "fine," a "penalty" and a "for- 
 feiture." They result from different forms of proceeding. In i Mc- 
 Lain,^° it is said : 
 
 "Where the statute provides that upon conviction of an act 
 specified the person guilty thereof shall be fined, etc., the pro- 
 ceeding to enforce the penalty is criminal; and in general an 
 offence against the public good which may be penal is punish- 
 able as a crime. The fact that the act or omission renders a 
 party liable to a pecuniary forfeiture which when collected goes 
 into the public treasury does not necessarily render the act a 
 crime ; but a prosecution by indictment in which a fine is to be 
 imposed is a criminal prosecution. Where a city is given auth- 
 ority to enact ordinances and punish violations thereof, by im- 
 prisonment or by fine enforcible by imprisonment, a prosecu- 
 tion under such an ordinance, although in the name of the city, 
 is generally held to be a criminal proceeding." 
 
 § 489. A "fine" described— In Southern Exp. Co. v. Walker," 
 Mr. justice Riely says: 
 
 " 'A fine is a pecuniary punishment imposed by a lawful 
 tribunal upon a person convicted of crime or misdemeanor.' 
 I Bouvier's Law Diet. 662. In chapter 31 of the Code, the 
 
 cuted by the grand jury, such prosecution should be a bar to any other prose- 
 cution for a forfeiture growing out of the same offence. See further i McLain, 
 Crim. Law, sec. 8; Freund, Police Power, sec. 157. 
 
 z'Ex parte Burns, 68 Misc. 299, 125 N. Y. S. 86. 
 
 28People V. Reppin, 139 App. Div., 160 Spec. Sess., 126 N. Y. S. 169- 
 
 29In crimes of higher character the terms are used in a sense different from 
 their employment in cases of misdemeanor. In Featherstone v. The People, 
 62 N. E. 684, 104 111. 32s, 334, it is said (Ricks, J.), "Punishment is synonymous 
 with penalty (Beggs v. State, 23 N. E. 693, 122 Ind. 54) 'Penalty,' 'liability' and 
 'forfeiture' are synonymous with 'punishment' in connection with crimes of the 
 highest grade. (United States v. Reisinger, 128 U. S. 398),. 32 L. Ed., 480." 
 
 s»Criminal Law, sees. S and 6. 
 
 SI92 Va. 59, 63. 
 
 358 
 
CRIMINAL PLEADING AND PRACTICE § 490 
 
 word 'fine' includes a pecuniary forfeiture, penalty, and 
 amercement; but that is by virtue of the special enactment 
 (Sec. 745), and it could not affect the proper construction of 
 the term 'fines' as used in the Constitution." 
 
 In Village of Lancaster v. Richardson,^^ Presiding Justice MuUin 
 observes : 
 
 "A fine is a sum of money exacted of a person guilty of a 
 misdemeanor or a crime, the amount of which may be fixed by 
 law or left in the discretion of the court." 
 
 § 490. Penalties and forfeitures. — The words "penalty" and "for- 
 feiture" present difficulties of discrimination not experienced in dis- 
 tinguishing the word "fine." Resort to the several standard dic- 
 tionaries discloses a substantial agreement among which the follow- 
 ing are taken from "The Century" : 
 
 "Penalty: Suffering, in person or property, as a punish- 
 ment annexed by law or judicial decision to a violation of law." 
 
 "Forfeit: (verb) To lose the legal or moral right to, by one's 
 own act or omission to act, usually by a breach of conditions 
 or by a wrong act, offence, fault, crime or neglect; become by 
 one's own act liable to be deprived of." 
 
 "Forfeiture: The act of forfeiting; the losing of some moral 
 or legal right or privilege, as estate, office, effects, honor or 
 credit, through one's own fault." 
 
 The distinction between the words is stated by Mr. Justice Wood- 
 ward, in Gosselink v. Campbell.^' 
 
 "The terms fine, forfeiture and penalty are often used loose- 
 ly, and even confusedly. But when a discrimination is made, 
 the word 'penalty' is found to be generic in its character, in- 
 cluding both fine and forfeiture. A fine is a pecuniary penalty. 
 * * * A 'forfeiture' is a penalty by which one loses his rights 
 and interest in his property." 
 
 Concerning a "forfeiture," it is said in McL,ain's Criminal Law:^* 
 
 "Statutes sometimes provide for forfeiture enforcible by the 
 state, or by a private informer on his own behalf, or by a pri- 
 
 *='4 Ivans. N. Y. 136, 140. 
 '»4 Iowa 296, 300. 
 »*Sec. 6. 
 
 359 
 
§ 49° CRIMINAL PLEADING AND PRACTICE 
 
 vate informer who is allowed to prosecute an action for the 
 penalty a portion of which is to go to him individually," (an 
 action qui tarn). * * * "These penal actions, however, 
 whether in the name of the state or of an individual informer, 
 are civil and not criminal." 
 
 In Butler v. Butler,^^ Mr. Chief Justice Mclver, quoting i6 Ency. 
 of PI. and Prac. 231-2, says : 
 
 " 'A statute properly designed as penal is one which inflicts 
 a forfeiture of money or goods by way of penalty for breach of 
 its provisions, and not by way of fine for a statutory crime or 
 misdemeanor.' And at page 234 of the same valuable work, it 
 is said: 'With reference to penal actions, the word penalty 
 means the forfeiture inflicted by a penal statute.' " 
 
 In Day v. Frank,'" the defendant was prosecuted under a statute 
 providing a penalty under a bond. Mr. Justice Morton, discussing 
 the nature of the punishment, says; 
 
 "The one hundred dollars, which, under the fifteenth sec- 
 tion, may be recovered for each offence, is not strictly a for- 
 feiture, but is rather in the nature of fixed or liquidated dam- 
 ages, which may be recovered in an action of tort by the 
 party injured."'^ 
 
 State V. Hamley,'* was a civil action brought by the State of Wis- 
 consin to recover a fine provided by the state law, for failing to ob- 
 serve the signal of the driver of a horse-drawn vehicle, and to adopt 
 all reasonable precautions for safety. The court below sustained de- 
 fendant's contention that a civil action for the recovery of a fine would 
 not lie, the proper action being a criminal prosecution, and dismissed 
 the case. The Appellate Court, by Mr. Justice Kerwin, quote section 4 
 of the automobile law of Wisconsin, of 1905, providing that any person 
 who shall violate the provisions of the section referred to "shall be 
 punished by a fine," etc., and hold : 
 
 "A criminal action is one prosecuted by the state against a 
 person charged with a public offence committed in violation of 
 
 8840 S. E. 138, 62 S. C. i6s, 177. 
 
 88127 Mass. 497, 498. 
 
 s^See also People ex rel. Kane v. Sloane, 98 N. Y. App. Div. 450. 
 
 S8119 N W., I3| Wis. 114. 
 
 360 
 
CRIMINAI, PI,EADING AND PRACTICE § 49^ 
 
 a public law. * * * The word 'fine' * * * does not in- 
 clude the forfeiture sometimes called 'fines' imposed by muni- 
 cipal corporations for violating their ordinances. * * * While 
 the words 'forfeiture,' 'fine,' and 'penalty' are often used inter- 
 changeably, yet a fine imposed as a punishment for the viola- 
 tion of a public statute of the State cannot be recovered in a 
 civil action, * * * but the remedy is by a criminal prosecu- 
 tion in the name of the State."^° 
 
 § 491. Forfeitures by way of damages.*" — In Missouri Pac. Ry. 
 Co. v. Humes,*^ Mr. Justice Field quotes from Mr. Justice Grier in 
 Day v. Woodworth,*^ as follows : 
 
 "By the common as well as by statute law, men are often 
 punished for aggravated misconduct or lawless acts by means 
 of a civil action, and the damages inflicted by way of penalty 
 or punishment given to the party injured," (Citing Milwaukee 
 & St. P. Ry. Co. V. Arms, 91 U. S. 489)-" 
 
 § 492. Appeal. — The rights of the defendant on appeal depend on 
 local practice. It seems that in Pennsylvania no appeal will be allowed 
 except on claim of oppression, fraud or disregard of law by the lower 
 court.** A conviction will not be reversed simply because the justice in 
 the lower court believed the police ofl&cer instead of the defendant.*^ 
 The payment of the fine imposed, though under protest, ends the case 
 and prevents an appeal.** 
 
 § 493. Summary trial. — Under the Federal Constitution (amend- 
 ment art. v.), no person can be deprived of "life, liberty or property 
 without due process of law." And in article VI, it is provided that: 
 
 "In all criminal prosecutions, the accused shall enjoy the 
 right to a speedy and public trial, by an impartial jury of the 
 state and district wherein the crime shall be committed." 
 
 3»See Com. v. Pfeiffer, 35 Pa. Co. Ct. Reps. 476; Cauf man's Case, 18 Pa. 
 Dist. Reps. 25; Com. v. Quander, 18 Pa. Dist. Reps. 973. 
 *''For further consideration of this topic, see § 1762. 
 *iiiS U. S. S12, S2I, 29 L. Ed. 463, 
 *2ii3 How. 363; 14 h. Ed. 181. 
 *'See also Newcomb v. Boston Prot. Dept., 146 Mass. 596,, 600, 16 N. E. 
 
 555. 
 "Com. V. Woodhead, 18 Pa. Dist. R. 549. 
 
 *=People V. Reutiman, 85 Misc. 233, 148 N. Y. S. 612 (N. Y. Gen. Sess.) 182, 
 ««Com. V. Nickolson, 35 Pa. Co. Ct. R. 556. 
 
 361 
 
§ 493 CRIMINAL PLEADING AND PRACTICE 
 
 In the Massachusetts Constitution, part first, art. XII ("Declara- 
 tion of Rights"), is found the provision which exists in the constitu- 
 tions of the states generally, namely, that no person shall be: 
 
 "Deprived of his life, liberty or estate but by the judgment 
 of his peers, or the law of the land." 
 
 The same article further provides as follows: 
 
 "And the legislature shall not make any law that shall sub- 
 ject any person to a capital or infamous punishment, excepting 
 for the government of the army and navy, without trial by 
 jury." 
 
 These expressions of the organic law have come down from the 
 earliest times and seem to imply that in no criminal prosecution can 
 the accused be tried except by a jury. Nevertheless, in England for 
 centuries, and in America since the foundation of our institutions, 
 it has been the practice to confer power upon local magistrates having 
 jurisdiction of minor public offences, to summarily try and convict 
 without a jury. In McQuillin,*^ it is said: 
 
 "It is thus apparent that infractions of such local police 
 regulations have ever been looked upon as trivial offences, not 
 in their essence crimes or misdemeanors, as those terms are em- 
 ployed in our criminal jurisprudence. In all such cases, there- 
 fore, it is entirely competent, unless the constitution forbids, to 
 provide for summary trial without a jury, either in the munici- 
 pal charter or by act of the legislature of the State. The neces- 
 sity of summary trial of such offences is obvious. To insure 
 the prompt and efficient exercise of the police authority, with 
 which municipal corporations are ordinarily clothed, the trial 
 of offenders must be speedy and the punishment summary, 
 which are impossible of attainment, under the slow and formal 
 methods of prosecuting by indictment or information and trial 
 by jury. In the large cities, especially because of the vast 
 number of such hearings daily, jury trials would be utterly im- 
 practicable." 
 
 The principle underlying the practice stated by the author just 
 quoted, is announced by Mr. Chief Justice Shaw in the Massachusetts 
 
 "Municipal Ordinances, sec. 328. 
 
 362 
 
CRIMINAL PLEADING AND PRACTICH; § 493 
 
 case of Sullivan v. Adams,** where he considers the constitutional 
 provisions above quoted, and applies them to justices of the peace and 
 police courts, which "do not furnish a jury by whom a trial can be 
 had." In this connection. Judge Shaw remarks: 
 
 "But it has always been held, that if there is an unobstructed 
 and unclogged right of appeal to a court in which such trial 
 can be obtained, that article of the Declaration of Rights is not 
 infringed upon."*' 
 
 <869 Mass. 476, 477. 
 
 *9See Jones v. Robbins, 74 Mass. 329, 341 ; Rev. Laws, chap. 219, sec. 22 ; Com. 
 V. Nickolson, 35 Pa. Co. Ct. Reps. 556, 1907; Com. v. Woodhead, 18 Pa. Dist. 
 Reps. 549, I909- 
 
 363 
 
CHAPTER XXIII 
 
 ENFORCEMENT OF THE MOTOR VEHICLE LAW 
 
 § 494. Scope of chapter. 
 
 495. The Massachusetts Act. 
 
 496. General laws. 
 
 497. General features concerning inspectors and examiners. 
 
 498. Officer must be distinguishable. 
 
 499. Officer to state ground of arrest or exhibit warrant. 
 
 500. When officer authorized to arrest' "without warrant." 
 
 501. Powers of constables, watchmen and police offiicers, generally. 
 
 502. Concerning constables. 
 
 503. Concerning watchmen. 
 
 504. Concerning police officers. 
 
 505. Concerning "peace officers" generally. 
 
 § 494. Scope of Chapter. — ^The laws for enforcement of the motor 
 vehicle statutes are similar in the various states. As an example of 
 such provisions the Massachusetts act will be found quoted in the 
 following sections: 
 
 § 495. The Massachusetts Act. — The provisions of the Motor 
 Vehicle Act of 1909, to which attention is particularly directed, are 
 contained in §§ 19 and 26: 
 
 Section 26, chapter 534, Laws of 1909, providing for the appoint- 
 ment of certain officials to act as "investigators and examiners," and 
 defining their powers and duties under the direction of the Highway 
 Commission, is in the following terms: 
 
 "Said inspectors and examiners, with respect to the enforce- 
 ment of all provisions of law relative to motor vehicles and to 
 the ownership and operation thereof, shall have and exercise 
 throughout the Commonwealth all the powers of constables, ex- 
 cept the service of civil process, and of police officers and 
 watchmen, including the power to arrest any person who vio- 
 lates any provision of this Act, and they may serve all pro- 
 cesses lawfully issued by the courts or the commission." 
 
 364 
 
fiNFOECEMElNT OP MOTOR VEHICI^B LAW § 496 
 
 Section 19 of the same Act, provides for arrest "without warrant" 
 and is as follows : 
 
 "Any officer authorized to make arrests may arrest without 
 warrant and keep in custody for not more than twenty-four 
 hours, unless Sunday intervenes, any person operating a motor 
 vehicle on any street or way who does not have in his possession 
 a license to operate motor vehicles granted to him by the com- 
 mission, and who violates any statute, by-law, ordinance or 
 regulation relating to the operation or control of motor vehicles ; 
 and at or before the expiration of said period of time such 
 person shall be brought before a proper magistrate and pro- 
 ceeded against according to law." 
 
 § 496. General laws.^ — The general laws whose language is similar 
 to the provisions of the automobile law, considered in this chapter 
 are : Mass. Revised Laws, chapter 52, section 8, relating to fast driving, 
 as follows: 
 
 Sec. 8. "Whoever violates an ordinance or by-law prohibit- 
 ing persons from riding or driving at a rate of speed incon- 
 sistent with public safety or convenience may be arrested with- 
 out a warrant by an officer authorized to make arrests and 
 kept in custody not more than twenty-four hours, Sunday ex- 
 cepted; at or before the expiration of which time he shall be 
 brought before a proper magistrate and proceeded against ac- 
 cording to law." 
 
 Mass. Revised Laws, chapter 212, section 36 and 37, relating to in- 
 toxication, which provides that: 
 
 (Sec. 36) "Whoever is found in a state of intoxication in 
 a public place or is found in any place in a state of intoxica- 
 tion committing a breach of the peace or disturbing others by 
 noise, may be arrested without a warrant by a sherifif, deputy 
 sherifif, constable, watchman or police officer, and kept in cus- 
 tody in a suitable place until he has recovered from his intoxi- 
 cation."^ 
 
 ^See Appendix A. 
 
 ^Regarding the language "or in any place committing a breach of the peace," 
 the court in Ford v. Breen, 173 Mass. 53 N. E. 136, 52, says: "The plaintiff 
 contendsi that the words 'any place' were not intended to include a dwelling 
 house; but there is no good foundation for this contention. No expression 
 could be found that would be broader in its inclusiveness." 
 
 36s 
 
§ 497 ENFORCEMENT OE MOTOR VEHICLE LAW 
 
 (Sec. 37) "Whoever arrests a person for drunkenness shall make 
 a complaint against him therefor." * * * 
 
 Mass. Revised Laws, chapter 212, section 53, as amended by chapter 
 403 of the laws of 1906, in these terms : 
 
 "Whoever remains in a street or elsewhere in a city or town 
 in wilful violation of an ordinance or by-law of such city or 
 town * * * ffig^y jjg arrested by an ofificer authorized to serve 
 criminal process in the place where the offence is committed, 
 and kept in custody until he can be taken before a court which 
 has jurisdiction of such offence, and if his name is unknown to 
 the officer who makes the arrest he may be arrested without a 
 warrant." 
 
 The word "remains" means to continue or to stay subsequently to 
 the occurrence or happening of some event or condition.^ 
 
 § 497. General features concerning inspectors and examiners. 
 —Regarding section 26 of chapter 534, Laws of 1909, at first glance 
 two propositions are apparent, namely : ( i ) That the powers of the of- 
 ficials described therein are limited to the enforcement of the provi- 
 sions of the automobile law; and (2) That in the exercise thereof, 
 their authority to act is co-extensive with the territorial limits of the 
 state, thus relieving the subject of the need of any considerations con- 
 cerning the exercise of power by local officials beyond the limits of 
 their localities. 
 
 It is not conceived that the legislature intended to give exclusive 
 power to the inspectors and examiners to enforce the motor vehicle 
 laws and regulations, nor in any sense to abridge general police au- 
 thority, but rather to give to such inspectors and examiners powers 
 concurrent with those of the other officials therein mentioned, in re- 
 spect of the matters covered by its provisions. It is also understood 
 that the language "vvith respect to the enforcement of all provisions 
 of law relative to motor vehicles," taken in connection with "through- 
 out the commonwealth," includes not only the exercise of authority 
 on the public thoroughfares, but also extends to the enforcement of 
 the motor vehicle law in public parks and reservations in common 
 with police and other park officials, and under park regulations. There 
 
 'Webster, Century, Standard Diets. 
 
 366 
 
eNFORCSMH^NT OF MOTOR VEHICLE LAW § 498 
 
 seems to be nothing in the laws concerning public parks and reser- 
 vations, inconsistent with this view. 
 
 § 498. Officer must be distinguishable. — The statute, section 23, 
 chapter 534, Laws of 1909, provides that an officer capable of acting 
 under its provisions, shall be one — 
 
 "who is in uniform or who displays his badge conspicuously on 
 the outside of his outer coat or garment." 
 
 The general rule in this respect is that any one who assumes to 
 act under authority of law, particularly if not generally known or 
 made evident by some distinctive uniform or garb, must show his 
 authority if demanded.* 
 
 § 499. Officer to state ground of arrest or exhibit warrant. — 
 The officer making an arrest must on the request of the person arrested, 
 truly state the grounds thereof. The statute is mandatory on this 
 subject and is as follows: 
 
 Rev. Laws, chapter 205, sec. i : 
 
 "Whoever is arrested by virtue of process, or whoever is 
 taken into custody by an officer has a right to know from the 
 officer who arrests or claims to detain him, the true ground on 
 which the arrest is made, and an officer who refuses to answer 
 a question relative to the reason of such arrest, or answers such 
 question untruly, or assigns to the person arrested an untrue 
 reason for the arrest, or neglects upon request to exhibit to 
 the person arrested, or to any other person acting in his be- 
 half, the precept by virtue of which such arrest has been made, 
 shall be punishable by a fine of not more than one thousand 
 dollars or by imprisonment for not more than one year."^ 
 
 § 500. When officer authorized to arrest "without warrant." — 
 The Act of 1909, sec. 19, in express terms confers the power to arrest 
 "without warrant" any person "who violates any statute, by-law, 
 ordinance or regulation relating to the operation or control of motor 
 vehicles subject to the qualification noted below, and the power is 
 confined to "an officer authorized to make arrests." It is to be espe- 
 
 *Com. V. Field, 13 Mass. 321; Com. v. Tobin, 108 Mass. 429; Voorhees on 
 Arrest, sec. 78. 
 
 "See also People v. Ellis, 88 N. A. App. Div. 471, 1903. See further post §§ 
 506 et seq. 
 
 367 
 
§ 50I KNfORCBMfiN'r OF MOTOR VBHICLB LAW 
 
 dally observed, however, that by the terms of the act, the authority to 
 exercise the power therein conferred, is predicated upon the fact that 
 the offender is a person "who does not have in his possession a license 
 to operate motor vehicles and who violates," etc' 
 
 § 501. Powers of constables, watchmen and police officers, 
 generally. — With respect to the enforcement of all the provisions of 
 law relative to motor vehicles, their operation and ownership, the in- 
 spectors and examiners are clothed with all the powers of constables, 
 police officers and watchmen, except that of serving civil process. To 
 attain a clear conception of this part of the Act of 1909, some con- 
 sideration must be given to the functions and nature of the offices 
 mentioned. 
 
 § 502. Concerning constables. — The office is of great antiquity' 
 and the officer is ex officio a peace officer.* 
 
 In Com. v. Tobin,** the court declare that a constable by virtue of his 
 office is a peace officer and has power to arrest disturbers of the peace. 
 By statute such officers possess the power to apprehend persons accused 
 of crime, and may under proper circumstances, exercise certain of the 
 powers of sheriffs.^ 
 
 § 503. Concerning watchmen. — Like that of constable, the office 
 of watchman is one known to the common law and its occupant is in the 
 class known as peace officers. Under the name of "the watch," the 
 "night watch," etc., it goes back to the earliest times.^° 
 
 The statute making special provision concerning watchmen, is as 
 follows. Revised Laws, chapter 31 : 
 
 Sec. 2. "The watch shall suppress and prevent all disturb- 
 ances and disorders. During the night time they may examine 
 all persons abroad whom they have reason to suspect of an un- 
 lawful design, and may demand of them their business abroad 
 and whither they are going. * * * Persons so suspected who 
 do not give a satisfactory account of themselves * * * f^ay 
 be arrested by the watch, and shall thereupon be safely kept, by 
 
 eSee further post §§ 506 et seq. 
 ^Bacon's Abr. "C." 
 
 *Hale's Pleas of the Crown, 587; Rohan v. Sawin, 59 Mass. 281; i Chitty, 
 Crim. Law, 2d ed., p. 20. 
 8' 108 Mass. 429. 
 
 »See "Peace officers," § 505. Rev. Laws, c. 25, s. 91 and 93. 
 "S Dane's Abr. SpS. 
 
 368 
 
Kn^orc^ment of motor vehicle i,aw § 504 
 
 imprisonment or otherwise, until the next morning, and then 
 taken before a police, district or municipal court or trial justice 
 to be examined and prosecuted."^"^ 
 
 § 504. Concerning police officers. — The name is modem and the 
 office is created by statute. The common law powers of watchman 
 and constable are attached to it (except that of serving and executing 
 civil process) by express provision.^^ 
 
 In Com. V. Hasting,^' in regard to a policeman, the court say : 
 
 "His powers are designated and limited by the statute and 
 include all the powers of constables as conservators of the 
 peace." 
 
 Police officers may make arrests without warrant under the same 
 circumstances as watchmen.^* 
 
 They are usually appointed by virtue of provisions contained in 
 municipal charters, and the acts creating the charters commonly pro- 
 vide that they shall have the above-mentioned powers. 
 
 § 505. Concerning "peace officers" generally. — At common law 
 they include justices of the peace, sheriffs, coroners, constables and 
 watchmen and their assistants called to their aid.^° 
 
 As every offense against public order and tranquility is a "breach 
 of the peace" either actual, apprehended or constructive, the duties 
 of the officers render the name particularly appropriate.^' 
 
 "See "Peace officers," § 505. 
 
 i^Rev. Laws, chap. 25, sec. 94. 
 
 I'SO Mass. 261. 
 
 ^*Rev. Laws, chap. 212, sec. 47; Com. v. Doherty, 103 Mass. 443. 
 
 '^S Dane's Abr. 589, cited with approval in Rohan v. Sawin, 59 Mass. 284; 
 I Chitty, Crim. Law, 2d ed., p. 16. 
 
 I'Rapalje & Lawrence Law Diet., 149; Words & Phrases Jud. Def., 861. 
 
 With regard to the powers, duties and responsibilities of peace officers under 
 general provisions of law having a bearing on the subject see § 519. 
 
 369 
 24 
 
CHAPTER XXIV 
 
 ARRESTi 
 
 § 506. In General. 
 
 507. Resisting an oflScer. 
 
 508. Summons in lieu of arrest. 
 
 509. Powers of inspectors and examiners to arrest — How limited. 
 
 510. Custody of prisoner. 
 Sli. Recapture. 
 
 512. Property taken from prisoner. 
 
 513- Bail. 
 
 514. Fees of constables and police officers — Extortion. 
 
 515. Immunity of foreign diplomatic corps. 
 
 516. Arrest without warrant. 
 
 517. In cases of misdemeanor. 
 
 518. In cases of misdemeanor and statutory offenses. 
 'S19. Responsibility of officer. 
 
 520. In cases of felony. 
 
 521. In civil actions. 
 
 § 506. In General. — By "arrest" is to be understood, the taking 
 of the party into custody. An arrest is the beginning of imprison- 
 ment, — when a man is first taken and restrained of his liberty by 
 the lawful exercise of power under the sanction or color of law.^ 
 
 An officer in making an arrest should use no unnecessary force or 
 violence. It being his duty to make an arrest, the law clothes him with 
 the power to employ such force in degree and kind as the circum- 
 stances render reasonable. The exercise of unnecessary force or vio- 
 lence constitutes an assault and battery on the officer's part.' An of- 
 ficer effects arrest by laying his hand upon a person whom he has 
 authority to arrest for the purpose of arresting him, although he may 
 not succeed in stopping or holding him.* 
 
 ^As to arrest see further ante § 499, 500. 
 
 ^French v. Bancroft, 42 Mass. 504. 
 
 sState V. Fuller, 96 Mo. 165, 9 S. W. 583; i Bishop's Crim. Proc. (4th Ed.), 
 Sec. 159; Wharton on Homicide (3d Ed.), Sec. 487, et seq. ; Wharton's Criminal 
 Law (loth Ed.), Sees. 617, 630a; Voorhees on Arrest, Sec. 104. 
 
 ^Whitehead v. Keyes, 85 Mass. 501. 
 
ARREST § 507 
 
 No manual touching of the body, or actual force is necessary to con- 
 stitute an arrest. It is sufficient if the party be within the power of 
 the officer and submit to the arrest." In order to effect an arrest in a 
 proper case, without a warrant, an officer may enter a building through 
 an open door, without an invitation express or implied.* He has the 
 right under similar circumstances, to enter through an unfastened 
 door.^ And when holding a warrant, hie may even break and enter a 
 dwelling to arrest, on suspicion that the party is within, provided he 
 first request an entrance, and be guilty of no damage or violence.' 
 
 In general "due process of law," in matters of arrest, means the 
 exercise of that power under the authority of a proper warrant issued 
 by a magistrate having jurisdiction of the subject matter, ordinarily on 
 a complaint made. In making an arrest under such circumstances, the 
 officer will be fully protected, even though the warrant be irregularly 
 issued.^ Even in cases where he acts under a warrant, he must make a 
 full and true return thereto before he is entirely'discharged.^" 
 
 The complaint may be in writing or oral by the arresting officer, and 
 reduced to writing by the magistrate or court.^^ 
 
 Substantial compliance with the statute by the officer is sufficient, 
 even though he procures another person to make the complaint, but 
 is himself present to testify at the trial." 
 
 § 507. Resisting an officer. — Resisting an officer in making, or 
 aiding in preventing an arrest, is a crime amounting in most cases to the 
 degree of felony." It amounts to an obstruction of the officer in the dis- 
 charge of his duty and is an assault on the officer. 
 
 "Morony v. Chase, 100 Mass. 85. 
 
 'Ford V. Breen, 173 Mass, 52, 53 N. E. 136. 
 
 ^Com. V. Tobin, 108 Mass. 426. 
 
 sBarnard v. Bartlett, 64 Mass. 501; Com. v. McGahey, 77 Mass. 194; Com. v. 
 Irwin, 83 Mass. 587. 
 
 'Donohoe v. Shedd, 49 Mass. 326; Rohan v. Sawin, 59 Mass. 285; Clark v. 
 May, 68 Mass. 410; Coupal v. Ward, 106 Mass. 289; Voorhees on Arrest, Sec. 12. 
 
 lOTubbs V. Turkey, 57 Mass. 440; Munroe v. Merrill, 72 Mass. 236; Whitehead 
 V. Keyes, 85 Mass. 498; Brock v. Stimson, 108 Mass. 521. 
 
 iiHobbs V. Hill, 157 Mass. 556, 32 N. E. 862. 
 
 i^Gainey v. Parkman, 100 Mass. 318; Papineau v. Bacon ,110 Mass. 320. 
 
 "Mass. Rev. Laws, Chap. 215, sec. 4; 5 Dane's Abr. 589; Wharton on Homi- 
 cide, 3d d., sec. 390 et seq., also sec. 398. 
 
 371 
 
§ So8 ARREST 
 
 But it is otherwise, if the officer has no authority to make the 
 arrest. In Com. v. Wright,^* the court, by Mr. Chief Justice Field, 
 say: 
 
 "If Proctor was an officer, and the defendants knew it, and 
 if he had the right to arrest them without a warrant, they 
 could lawfully make no resistance to the arrest. If Proctor was 
 not an officer, or if, being an ofificer, he had no right to arrest 
 the defendants without a warrant, they could use reasonable 
 force in preventing an arrest." 
 
 § 508. Summons in lieu of arrest. — The usual practice in Massa- 
 chusetts in case of motor vehicle offences, not amounting to felonv, 
 is for the officer to take the name and address of the offender under 
 the provisions of section 23, chapter 534, Laws of 1909, and then pro- 
 cure a summons from a magistrate, requiring such person to appear 
 before the court to answer to the complaint against him. This pro- 
 cedure is by virtue of Revised Laws, chap. 217, sec. 24, as follows: 
 
 "Upon a complaint for a crime within the jurisdiction of 
 trial justices, a summons shall be issued instead of a warrant for 
 arrest, unless, in the judgment of the court or magistrate re- 
 ceiving the complaint, there is reason to believe that the de- 
 fendant will not appear upon a summons." 
 
 The adoption of this practice obviates all the complications possibly 
 involved by an arrest. Failure, without reasonable cause, to appear 
 as directed in the summons is contempt of court punishable by fine, 
 and subjects the defendant to liability to arrest upon a warrant which 
 may be issued at any time.'° 
 
 § 509. Powers of inspectors and examiners to arrest — How 
 limited. — The language of Section 26," confers upon inspectors 
 and examiners the powers of peace officers generally in matters of 
 arrest under that statute. It follows, therefore, that these officials 
 may exercise that function in the same manner and to the same ex- 
 tent as officers generally, but no farther than the power is expressly 
 conferred by statute, especially in cases of arrest without a warrant. 
 
 "158 Mass. 149, IS7, 33 N. E. 82, 35 Am. St. Rep. 475. 
 I'Rev. Laws, chap. 217, sec. 26. 
 "c. S34, A. 1909. 
 
 372 
 
ARREST § 510 
 
 It also appears on the face of section 19, that the power to arrest 
 "without warrant" exists only when the offender "does not have in 
 his possession a license to operate" and violates a provision of the 
 motor vehicle law or regulations. Section 26 of the act, giving in- 
 spectors and examiners the authority of the officers mentioned, ex- 
 pressly includes "the power to arrest any person who violates any 
 provision of this act." But it is to be noted that the power is not 
 coupled with authority to arrest without a warrant for "any" such 
 violations. The statute being in this respect, of a character to be 
 strictly construed and the exercise of power rigorously limited to its 
 express provisions, it follows that these officers cannot arrest "without 
 warrant" except in such cases as any other officer could so arrest under 
 section 19, and that the exercise of the further power to arrest gen- 
 erally conferred by section 26, is limited to arrest by "due proc- 
 ess of law," which, as has been pointed out, means upon a warrant 
 duly issued by a proper magistrate. The only cases, therefore, wherein 
 these officials can take an offender into custody without a warrant, 
 are those arising during the actual operation of motor vehicles, be- 
 cause the statute (sec. 10), requires that the license be carried only 
 while "operating." 
 
 § 510. Custody of Prisoner. — ^Aiding or Assisting the prisoner 
 to escape from custody, is prohibited.^' 
 
 "Whoever aids or assists a prisoner in escaping or attempt- 
 ing to escape from an officer or person who has the lawful cus- 
 tody of such prisoner, shall be punished by imprisonment for 
 not more than two years or by a fine of not more than two 
 hundred dollars." 
 
 The officer's right to require assistance in the performance of his 
 duties is covered by the provisions of the Mass. Revised Laws, chap- 
 ter 216, section 31 : 
 
 "Whoever being required in the name of the Commonwealth 
 by a sheriff, deputy sheriff, constable, police officer or watch- 
 man, neglects or refuses to assist him in the execution of his 
 office in a criminal case, in the preservation of the peace or in 
 
 ^'Revised Laws, chapter 210, section 21. 
 I'Cotn. V. Monihan, 86 Mass. 587. 
 
 373 
 
§ sit AR&ESf 
 
 the apprehension or securing of a person for breach of the 
 peace, or in a case of escape or rescue of persons arrested upon 
 civil process, shall be punished by imprisonment for not more 
 than one month or by a fine of not more than fifty dollars." 
 
 An officer's custody of the prisoner does not cease until the prisoner 
 has been discharged, or a warrant of commitment made out.^* 
 
 § 511. Recapture. — An escape by a prisoner lawfully arrested, 
 warrants the retaking of him on fresh pursuit, and the breaking of 
 doors for that purpose, after demand and refusal of admittance.^' 
 
 § 512. Property taken from a prisoner which is not in any way 
 connected with the offense charged, should be surrendered on demand, 
 after recognizance has been given.^" 
 
 § 513. Bail. — It is the right of every man to demand reasonable 
 bail, and in cases not involving crimes of a capital or felonious nature, 
 it is generally the duty of magistrates to admit the accused to bail. 
 The amount of bail required and the form of the recognizance, and 
 the number of sureties is, in a degree within the discretion of the 
 magistrate.^^ Judge Hitchcock^^ says, concerning the duty of the 
 arresting officer in this regard : 
 
 "An officer who has arrested any person for an offence which 
 is bailable must allow such person a reasonable opportunity to 
 procure such bail. It would be his duty to send for such sure- 
 ties as the prisoner might request, and then take the prisoner 
 and the sureties before some person authorized to take bail." 
 
 Under the motor vehicle law, the person arrested must be pro- 
 duced before a magistrate within twenty-four hours after his arrest, 
 Sunday excepted.^^ 
 
 In some states, under motor vehicle laws, the defendant may leave 
 his machine as security for his appearance, in others he may deposit 
 cash as bail. Massachusetts is in the latter class. In all cases where 
 tlie person has been arrested "solely'' for a violation of the "speed lim- 
 its" or of the "special speed regulations," he "shall be admitted to bail 
 
 loCom. V. McGahey, ^^ Mass. ig6. 
 2oKing V. Ham, 88 Mass. 298. 
 2iMass. Rev. Laws, c. 217, sees. 2!j et seq. 
 22Sheriffs and Constables, Sec. 170. 
 23Chap. 534, A. 1909, sec. 19. 
 
 374 
 
ARREST § 514 
 
 for his appearance in court upon the deposit of one hundred dollars in 
 cash in lieu of a bail bond, with any person authorized to take bail."^* 
 
 § 514. Fees of constables and police ofBcers — extortion. — For 
 a public officer to demand or receive unlawful fees is "extortion."'*^ 
 
 § 515. Immunity of foreign diplomatic corps. — Under rules of 
 international law and by express statute, ambassadors and ministers 
 from foreign countries to this country, and their servants are not 
 subject to arrest on criminal process or in any criminal proceeding of 
 any kind.^' 
 
 The immunity extends to Charge d' Affaires, Secretaries of Lega- 
 tion, and Attaches. Domestic servants are also immune, as also are 
 the property, effects and dwellings of the diplomat and his household. 
 It is no defense to the officer to plead ignorance of the diplomatic or 
 public character of the accused.^^ The privilege and immunity cannot 
 be waived. Even a submission and consent is no justification for the 
 officer.^' Recognition by the President is conclusive evidence of diplo- 
 matic status.^* Any grievance against such officials is a matter for the 
 President of the United States, acting through the Federal Secretary of 
 State.^» 
 
 The curious effect of this rule was shown some years ago when the 
 Governor of Massachusetts delivered a written apology to a young 
 foreigner attached to the foreign diplomatic corps, the cause of the 
 apology being that the young man hadTjroken the state laws against 
 reckless driving and been arrested therefor. 
 
 To consuls and consular officials of foreign countries resident in 
 this country, immunity such as that which attaches to diplomatic 
 representatives of other nations, does not appear to extend. Mr. 
 
 2*Act 1909, c. 534, sees. 16, 17, 20. 
 
 2*aLincoln v. Shaw, 17 Mass. 410; Shattuck v. Woods, 18 Mass. 171; Com. 
 V. Bagley, 24 Mass. 279. See also Templeton v. Williams, 24 Mont. Co. L. 
 Reps, (Pa.) 194. 
 
 "'U. S. Rev. Stats., sees. 4062, 4063 ; 4 Moore's Dig. Int. Law, sees. 657-660 et 
 seq. 
 
 "^3 Abb. Nat'l Dig., 214, 215 ; i Opp. Att'y. Gen., 27. 
 
 "U. S. V. Bonner, Fed. Cas. No. 14568. 
 
 28U. S. V. Ortega, Fed. Cas. No. 15971. 
 
 294 Moore's Dig. Int. Law, Sec. 660. 
 
 375 
 
§ Sl6 ARREST 
 
 Jefferson Secretary of State of the United States in 1791, wrote 
 as follows on this subject concerning foreign consular officers: 
 
 "They are subject to the laws of the land indeed precisely 
 as other foreigners are, * * * but if at any time their con- 
 duct should render it necessary to assert the authority of the 
 laws over them, the rigor of those laws should be tempered by 
 our respect for their sovereign, as the case will admit. This 
 moderate and respectful treatment towards foreign consuls it is 
 my duty to recommend and press on our citizens because I 
 ask it for their good, towards our own consuls, from the people 
 with whom they reside."'" 
 
 Mr. Gushing, U. S. Attorney General, 1855, in an opinion said: 
 
 "Foreign consuls are subject to criminal process for the 
 violation of municipal laws. In addition to the ordinary means 
 of redress, the President may, in his discretion, withdraw the 
 exequater."^^ 
 
 The principles laid down in these citations, seem to have been ad- 
 hered to. See correspondence in the case of lasigi, by Mr. Olney, 
 Secretary of State in 1897.'^ 
 
 § 516. Arrest without v^arrant. — It is manifest that there are 
 occasions when instant action without waiting for the operation of the 
 regular process of law, is necessary to meet the requirements of 
 justice. In all such cases the officer should look to it that he is 
 within the law before exercising his authority. Wherever practicable, 
 a warrant for his action should be duly obtained as thereby he is re- 
 lieved of such responsibility.'* 
 
 Arrest without warrant is in its nature summary. In cases of mis- 
 demeanor it can only be exercised in accordance with statute provi- 
 sions explicitly granting authority so to act. It is a recognized rule 
 that such statutes are to be strictly construed. Mr. Black,'* thus states 
 
 ""S Moore's Dig. Int. Law, Sec. 702. 
 '15 Moore's Dig. Int. I,aw, Sec. 712. 
 
 8*5 Moore's Dig. Int. I,aw, Sec. 712; also Stowell's (1909) Consular Cases 
 and Opinions, 465, 423, 432. 
 881 Chitty's Criminal Law, 2d Ed., 15; Voorhees on Arrest, Sees. 20, 131. 
 8*Interpretation of Laws, p. 305. 
 
 376 
 
ARREST § 516 
 
 the settled principle concerning legislative enactments authorizing 
 summary proceedings : 
 
 "Statutes authorizing summary proceedings must be con- 
 strued with strictness, and must be exactly followed by those 
 who act under or in pursuance of them." 
 
 By general legislative acts, watchmen, constables, and police ofHcers 
 are given power to enforce laws, regulations and ordinances relating 
 to intoxication, violations of road rules, interference with traffic, dis- 
 turbance of the peace and the like, even to the extent of arresting with- 
 out a warrant in some cases. In so far as the provisions of these 
 laws are analogous to the law "relative to motor vehicles and to the 
 operation thereof, "^^ they are to be considered and the judicial deci- 
 sions thereunder treated as being authority. 
 
 While the Act of 1909, chapter 534, confers the power of arrest 
 upon the officer, the exercise of the power is not mandatory. It is 
 rather permissive than obligatory. The offender "may" be arrested, 
 and it is left to the discretion of the officer to exercise the authority. 
 
 Referring to the words "may be," in section 36, chapter 212. Re- 
 vised Laws, the Supreme Court say : 
 
 "The language of the statute is permissive. It gives auth- 
 ority to the officers named to use their discretion as to arrest- 
 ing an intoxicated person found in a public place. It does 
 not compel them at all hazards to arrest such person, but leaves 
 it to their sound judgment to decide whether under all the cir- 
 cumstances of the particular case, they should arrest the of- 
 fender."«« 
 
 Having used his discretion and exercised his authority to arrest, 
 the officer "shall" bring the party before a proper magistrate, and 
 proceed against him according to law. (chap. 534, A. 1909, sec. 19.) 
 All the acts quoted are mandatory in this respect. Their wording 
 
 '°Mass. St. 1909, c. 534- 
 
 ''Com. V. Cheney, 141 Mass. 103, 6 N. E. 744. 
 
 377 
 
§ 5^7 ARREST 
 
 in this feature is almost the same. Referring to the provision of 
 Revised Laws, Sees. 36 and 37, Chap. 212, the court say: 
 
 "The custody is to be temporary only, to continue until the 
 party arrested is in a condition proper for his appearance."^^ 
 
 § 517. In cases of misdemeanor. — "At common law, an arrest 
 could not be maide by a person charged with misdemeanor, except on 
 the warrant of a magistrate, unless it involved a breach of the peace.'* 
 
 In Phillips V. Fadden,'' Mr. Justice Ames remarks: 
 
 "One who arrests the person of another by legal process or 
 authority conferred upon him by law, can only justify himself 
 by a strict compliance with the requirements of such process or 
 authority." 
 
 In Brock v. Stimson,** Mr. Justice Gray says : 
 
 "Every man has the right to the enjoyment of his liberty 
 and the use of his property, except so far as restrained by law ; 
 and whoever unlawfully interferes with the enjoyment of the 
 one or the use of the other is a trespasser. 
 
 In Com. V. O'Connor,*^ Chief Justice Bigelow observes : 
 
 "The crime of drunkenness is a purely statute offense, and 
 no authority exists to arrest a person who may be guilty of it 
 without a warrant except that which is expressly conferred by 
 statute." 
 
 In Com. V. Wright,*'' the defendant was indicted for assault and 
 battery upon one Proctor, a police officer, while attempting to arrest 
 him without a warrant for violation of the law relating to "short lob- 
 sters." Defendant's principal contention was that Proctor had no 
 right to arrest without a warrant, even though he possessed the usual 
 
 ^^Phillips V. Fadden, 125 Mass. 198, 201; Brock v. Stimson, 108 Mass. 520; 
 Caffry v. Drugan, 144 Mass. 294, 11 N. E. 96; Joyce v. Parkhurst, 150 Mass. 
 243, 22 N. E. 899. 
 
 ssButolph V. Blust, 41 How. Pr. (N. Y.) 481, 489; i Chitty Critn. Law, 2d Ed., 
 
 IS. 
 88125 Mass. 198, 202. 
 ^oioS Mass. 520. 
 *i89 Mass. 584. 
 "158 Mass. 149, 158, 33 N. E. 82. 
 
 378 
 
ARREST § 518 
 
 power to arrest generally. Chief Justice Field, speaking for the court, 
 says : 
 
 "There is no statute authorizing such an arrest. * * * It 
 is suggested that the statutory misdemeanor of having in one's 
 possession short lobsters, with intent to sell them, is a continu- 
 ing offense, which is continuing while such possession continues, 
 and that therefore an officer who sees any person in possession 
 of such lobsters with intent to sell them, can arrest such person 
 ' without a warrant as for a misdemeanor committed in his 
 presence. We are of opinion, however, that for statutory mis- 
 demeanors of this kind, not amounting to a breach of the peace, 
 there is no authority in an officer to arrest without a warrant, 
 unless it is given by statute. The Legislature has often em- 
 powered officers to arrest without a warrant for similar offences, 
 which perhaps tends to show that in its opinion no such right 
 exists at common law." 
 
 § 518. In cases of misdemeanor and statutory offenses. — As has 
 already been observed, it is within this class of cases that offenses 
 against the motor vehicle laws usually fall. Attention has also been 
 directed to the similarity in expression of the several acts against fast 
 driving, loitering, intoxication, etc., with the wording of Act of 1909,*' 
 hence a review of the adjudged cases in this connection will be of value. 
 
 It has appeared in previous sections that in the absence of express 
 statutory authority therefor, without a warrant, an officer cannot ar- 
 rest for the commission of a misdemeanor; and where the offense is 
 one of the class known as "statutory" the power to arrest will be 
 strictly limited to the statute, and not enlarged by implication.** 
 
 Com. V. Cheney*® was founded upon an indictment for assault by 
 the defendant, a police officer (one of the night watch), in arresting 
 one Hayes for drunkenness in a public place. It appears that Hayes 
 contended on the trial that he was not drunk, and the question turned 
 upon whether the officer was justified in making the arrest without a 
 warrant, if he had reasonable cause to believe to that effect, regardless 
 of the fact whether Hayes was actually drunk or not. In the opinion 
 
 *8Mass. St. 1909, c. 534. 
 
 **Com. V. Wright, 158 Mass. 159, 33 N. E. 82, and cases cited; Cora. v. Mc- 
 Laughlin, 66 Mass. 612, 615; Com. v. Presby. 80 Mass. 65; Com. v. O'Connor, 8g 
 Mass. 584; Phillips v. Fadden, 125 Mass. 198, 202; Com. v. Hughes, 183 Mass. 
 221, 66 Ni E. 716. 
 
 *=^i4i Mass. 103, 6 N. E. 724- 
 
 379 
 
§ 5^9 ARREST 
 
 the court review the authorities and draw the line of distinction be- 
 tween cases of felony and statutory offenses where arrest without war- 
 rant is resorted to, and say : 
 
 "It is true, that the officer should be required to use all rea- 
 sonable means to inform himself before making an arrest. 
 * * * ; and that no encouragement should be given to careless 
 and wilful acts of violence, under circumstances where there is 
 no necessity for any arrest or interference with the personal 
 rights of another. * * * But this rests with the officer. It is 
 for him to determine, and if he acts in good faith in relation to 
 it, his decision is final and conclusive, even if the facts on which 
 he bases his action are without sufficient foundation or in point 
 of fact untrue." 
 
 In Com. V. Coughlin,** the court say: 
 
 "The mere fact, therefore, that one arrested by an officer 
 without a warrant, for drunkenness, was acquitted at the trial 
 of the complaint, is not conclusive evidence that he was not 
 drunk when arrested, nor that the officer was not in the dis- 
 charge of his duty in making the arrest and in keeping him in 
 custody afterward as a preliminary to making a complaint 
 against him." 
 
 As has already been observed, the rule is less exacting where the of- 
 fense is committed m the officer's view. Generally in such cases the 
 arrest without a warrant will be more readily sustained, but even under 
 such circumstances there must be sound statutory authority for the 
 arrest itself, and the detention must be no longer than that limited by 
 the statute, or less if the prisoner can be brought before a magistrate 
 at an earlier time.*'' 
 
 It is manifest in all cases where the arrest without a warrant has 
 been made for an offense not committed in the officer's presence, that 
 the question of probable cause for the officer's belief in the fact of a 
 committed offense, and that the person arrested is the guilty party, 
 forms a large factor in his justification in making the arrest. 
 
 § 519. Responsibility of officer. — The controlling principle in all 
 cases of arrest without warrant is that the arresting officer is held to 
 strict accountability for his act. Where the offense has been committed 
 
 *Bi23 Mass. 437- 
 
 ^'Com. V. Hastings, 50 Mass. 259; Com. v. Tobin, 108 Mass. 426. 
 
 380 
 
ARREST § 520 
 
 in the officer's view, some features of the subject are eliminated, but 
 where he is called upon to act on evidence furnished by others, the 
 question is presented in a different aspect, and it is to this feature that 
 attention will principally be given. The rule is that an officer cannot 
 without a warrant, arrest a person guilty of a past offense, unless such 
 offense amounts to a felony.*' 
 
 There are certain distinctions which should be clearly understood 
 and carefully borne in mind, whenever arrest is made without a war- 
 want. The principles of law and the regulations of official conduct in 
 such cases in matters of felony are quite apart from those controlling 
 in misdemeanors and offenses purely statutory. These in turn, differ 
 from the rules applying in civil actions for damages brought against 
 the officer by the party aggrieved, for assault and false imprisonment. 
 Though the officer would be entirely justified in his action where fel- 
 ony is involved, he might be wholly beyond his power in one of mis- 
 demeanor, and where the law would sustain him in a criminal prose- 
 cution brought against him for false imprisonment or assault and bat- 
 tery, it would not sustain him in a civil action for damages. 
 
 § 520. In cases of felony. — Where felony has been actually com- 
 mitted or is suspected, greater latitude is allowed the peace officer in 
 the exercise of his power of arrest without a warrant." 
 
 In Rohan v. Sawin,^" the court say : 
 
 "The constable having reasonable cause to suspect that a 
 felony has been actually committed, is justified in arresting the 
 party suspected, although it afterward appear that no felony has 
 been committed." * * * The question in "deciding whether 
 he will arrest without a warrant * * * jg q^j^ ^l^^^. ^jjg q£_ 
 ficer must act upon under his official responsibility and not a 
 question to be reviewed elsewhere." 
 
 In Com, V. Carey,'^ the court say: 
 
 "A constable or other peace officer could not arrest one with- 
 out a warrant, for a crime proved or suspected, if such crime 
 were not an offense amounting in law to felony. This is the 
 
 *8Com. V. Carey, 66 Mass. 253. 
 
 *»Com. V. McLaughlin, 66 Mass. 615; Phillips v. Fadden, 125 Mass. 198, 202; 
 Com. V. Cheney, 141 Mass. 103, 6 N. E. 724. 
 8"S9 Mass. 284. 
 "^66 Mass. 252. 
 
 381 
 
§ 521 ARRSST 
 
 old established rule of the common law adopted and acted upon 
 in this Commonwealth, by which courts of justice are bound 
 to be governed until altered by the legislature." 
 
 § 521. In civil actions. — In civil actions the rule is most strictly 
 applied against the officer, particularly if the offense under which the 
 arrest without a warrant occurred, was a statutory crime. Civil actions 
 are usually in tort to recover money damages, and are brought by the 
 party arrested against the officer, for assault or false imprisonment. 
 In such cases, to sustain his action in arresting without a warrant, the 
 officer must show two things: (i) that the offense was one where the 
 statute gave him the power to make the arrest without a warrant, and 
 (2) that the charge was in point of fact true.'* 
 
 Phillips V. Fadden'' was a civil action in tort for assault and battery 
 and false imprisonment, growing out of an arrest by the defendant (a 
 constable) of the plaintiff, without a warrant, on the ground of intoxi- 
 cation in a public place. The court say: 
 
 "If the person arrested was not in fact intoxicated, the statute 
 gave the officer no right to arrest, even though in so doing, he 
 acted in good faith and upon reasonable ground of beUef. The 
 case of Rohan v. Sawin, 5 Cush. 281, was a case in which the 
 arrest was for a supposed felony, and the rule of the common 
 law which governed that case does not apply to this, which 
 depends upon the words of the statute." 
 
 Even though the officer at the prisoner's request, refrained from 
 making a charge against him before the magistrate, and released him 
 from arrest, such officer does not clear himself of liability to his pris- 
 oner in a civil action, unless he can satisfy the jury that the release 
 was made with the full understanding on both sides that no further 
 proceedings were to be taken.^* The fact of intoxication is one for the 
 jury, and it is permissible for the officer to prove that subsequently to 
 the arrest, a warrant was actually obtained charging the offense.^' 
 
 "^Mason v. Lothrop, 73 Mass. 356; Kennedy v. Favor, 80 Mass. 202. 
 
 "8125 Mass. 198. 
 
 6*Coni. V. Hastings, so Mass. 259; Phillips v. Fadden, 125 Mass. 198, 202; 
 Caffrey v. Drugan, 144 Mass. 294 11 N. E. 96; Joyce v. Parkhurst, 150 Mass. 
 243, 22 N. E. 899; Bates v. Reynolds, 195 Mass. 554, 81 N. E. 260. 
 
 fi" Mason v. Lothrop, 73 Mass. 354; Kennedy v. Favor, 80 Mass. 200. 
 
 382 
 
ARREST § 521 
 
 "Probable cause" is a phrase much used in this connection, and has 
 been defined by the court as followrs: 
 
 "Probable cause is a reasonable ground of suspicion, sup- 
 ported by circumstances sufficiently strong in themselves to 
 warrant a cautious and prudent man in entertaining an honest 
 belief of guilt. Mere belief occasioned by negligence or want of 
 proper investigation or reflection is no justification. Although 
 there was not probable cause, the defendant would not be lia- 
 ble unless he acted maliciously. An act done wrongfully and 
 without probable cause in wanton disregard of the rights of 
 another, is malicious."^* 
 
 Probable cause is a question of fact for the jury.®' 
 
 56Mitchell V. Wall, iii Mass. 281; Rohan v. Sawin, 59 Mass. 281; Com. v. 
 McLaughlin, 66 Mass. 615; Kennedy v. Favor, 80 Mass. 202. 
 ''Robinson v. Van Auken, 190 Mass. 161, 76 N. E. 601. 
 
 383 
 
CHAPTER XXV. 
 
 GARAGES AND GARAGE KEEPERS 
 I. In Gbnsrai, 
 
 § 522. Definitions and scope. 
 
 523. The business is lawful. 
 
 524. Rule of respondeat superior as to garage keeper. 
 
 525. Duty to one entering garage on business. 
 
 526. Right of lessee to remove his garage. 
 
 527. Evidence of ownership. 
 
 § 522. Definitions^ and Scope. — Among the modern occupations, 
 none has been more rapid and widespread in development than the 
 growth of the garage. It speaks well for those engaged in the busi- 
 ness and for the character of their patrons, that not many reported 
 cases have appeared in the courts. In applying the law to this new 
 avocation, resort is had to principles relating to livery-stable keepers, 
 to warehousemen, and to the rules which apply to repairmen in general 
 lines of employment.* 
 
 A garage has been likened to a livery stable for which it has become 
 a substitute to a great extent and the rules of law governing livery 
 stable keepers apply to garage keepers.' 
 
 A "garage" is defined in the Technological & Scientific Dictionary, 
 by Goodchild & Tweeney (1906), as a "depot for the storage or 
 
 ^See Webster's Int. Diet, 1910. 
 
 ^Gasoline. Concerning the storage and use of gasoline by garagemen and in 
 garages, see Chapter XVII, Gasoline. 
 
 sRoberts v. Kinley, 89 Kan. 885, 132 Pac. 1180, 45 L. R. A. (N. S.) 938. In 
 Smith v. O'Brien, 94 N. Y. Supp. 673, 46 Misc. 325, Mr. Justice Clarke, speaking 
 for the court, says : "The garage is the modern substitute of the ancient livery 
 stable." And later in the same opinion, he remarks, "The garage keeper is like 
 unto the livery stable keeper." In Diocese of Trenton v. Toman, 74 N. J. Eq. 
 702, 70 Atl. 606, 611, Vice Chancellor Walker says: "These garages occupy with 
 relation to automobiles, the same place that stables do with regard to horses." 
 On the subject of law applying to livery stables and keepers thereof, see Oliphant 
 on Horses, p. 239, Chap. XI, 6th Ed. 
 
 384 
 
IN GENURAL § 523 
 
 Storage and repair of motor cars." It is also defined in the Addenda 
 to the Standard Dictionary to be "a building, as a stable or shed, for 
 the storage of automobiles and other horseless vehicles." The word 
 is of French origin and in that language has quite an extensive range 
 of meaning.* To the purposes of garages, mentioned in the forego- 
 ing, may be added a now common feature, namely, that they are 
 often places where motor vehicles are kept for hire, and also for sale. 
 Under the Massachusetts Motor Vehicle Act of 1909, the word is given 
 a definition of narrower scope. It is there (sec. i) said to "mean 
 every place where five or more motor vehicles are stored or housed at 
 any one time for pay, except only such places in which motor vehicles 
 are kept by the owners thereof without payment for storage." In this 
 chapter the word will be used in its larger significance, and generally 
 as relating to the so-called "public garage." 
 
 One who is engaged in the business of running a garage in which 
 automobiles are stored for repair is subject to a fee as a public garage 
 although no fee is charged for storage where charges are made for re- 
 pairs and vehicles are stored for repair.^ 
 
 In the chapter on Principal and Agent^ is considered the subject 
 of the responsibility of the garage keeper as an employer, for the acts 
 of his employee or driver. In the chapter on Passengers'' is in some 
 degree considered, the responsibility of the garage keeper to passengers, 
 from the standpoint of such passengers or lessees. In this chapter we 
 consider the rights, duties, and responsibilities from the standpoint of 
 the garage keeper, referring to the chapters mentioned as occasion re- 
 quires. 
 
 § 523. The business is lawful. — Mr. Justice Woodward, speaking 
 of a garage in a New York case, says : "The business of the defend- 
 ant appears perfectly lawful and legitimate." In some states these 
 institutions are the subject of legislation and license and the business 
 is subordinate to statutory control in some of its features.^ 
 
 *See Dictionaire de la Langue Francais, E. Littre. 
 ^Lawrence v. Middleton, 103 Miss. 173, 60 So. 130, citing text. 
 'Chapter XXXI. 
 'Chapter XL. 
 
 ^Stein V. Lyon, 91 N. Y. App. Div. 593, 87 N. Y. S. 125 ; Mass. Motor Vehicle 
 Act of igog, Chap. 534, sees, i, 28. 
 
 38s 
 
 25 
 
§ 524 GARAGES AND GARAGE KfigPERS 
 
 § 524. Rule of respondeat superior as to garage keeper,*— "The 
 general rule making the master liable for the acts of servants while act- 
 ing within the scope of their employment, obtains here, and for the 
 same reason."^" 
 
 Dr. Thompson," speaking of the law of master and servant in its ap- 
 plication to stable keepers, says : 
 
 "If a livery stable keeper or job-master, furnishes a horse 
 and driver to B., a customer, to be used in driving B. about in 
 his own carriage, the driver, while so employed, will be deemed 
 the servant of A., and not of B. ; and it makes no difference that 
 the arrangement is a continuing one; that the same driver is 
 always sent; that he wears a livery furnished by B., designed 
 to make the public think he is B.'s coachman, and that he receives 
 gratuities from B. A livery stable keeper is, accordingly, liable 
 for the negligence of his driver while temporarily engaged in 
 the services of an undertaker. If A. and B. exchange labor 
 with their teams, and A.'s teamster, while hauling materials 
 for B., injuries a third person, B. will not be liable for the rea- 
 son that the teamster continues to be the servant of A., and does 
 not become the servant of B." 
 
 § 525. Duty to one entering Garage on Business. — One entering 
 a garage on business is not a bare licensee simply because he goes in 
 the back door.^^ 
 
 § 526. Right of Lessee to Remove his Garage. — The lessee of 
 land may remove a garage which he plants upon it even though such 
 right is not expressly stated in the lease and even though his term has 
 expired provided he can remove it without substantial damage to the 
 land.i' 
 
 § 527. Evidence of Ownership. — ^The question of the title to a 
 garage often arises and is governed by various circumstances showing 
 control. 
 
 A garage may be found to be owned by the defendant on evidence 
 that the property was in her name and that she was in and about the 
 
 9See Chap. XXXI, also § 1230, et seq., Hacks ; also § 1239. 
 
 loVan Zile on Bailments, etc., 2d ed., sec. 206. 
 
 "Com. on Negligence, zd ed., sec. 582. 
 
 i2Jcwison V. Dieudonne, 127 Minn. 163, 149 N. W. 20, 7 N. C. C. A. 436. 
 
 I'Ray V. Young, 160 Iowa 613; 142 N. W. 393; 38 Ann. Cas. 258. 
 
 386 
 
STORAGE AND CARE OF VEHICLES § 528 
 
 garage during the time it was claimed to be managed and operated by 
 her husband.^* 
 
 A license tax on a public garage in which automobiles are kept in 
 storage or for sale is properly imposed on one keeping a building fully 
 equipped as a garage and trying to sell cars by showing customers 
 demonstrating cars, although all the cars sold were four demonstrating 
 cars sold on termination of the agencies."* 
 
 II. The Storage and Care of Motor Vehicles 
 
 528. Relation of garage keeper to his customer. 
 
 529. Commencement and termination of liability. 
 
 530. Termination of bailment. 
 
 531. Title of garage keeper. 
 
 532. Rights of action of garage keeper. 
 S33- Duty of garage keepers. 
 
 534. Garage keeper not an insurer. 
 
 535. Failure to redeliver to customer. 
 
 536. Garage keeper's liability for damage to car taken out unauthorizedly. 
 
 537. Liability for theft of articles left with him. 
 
 538. Unauthorized use of vehicle by garage keeper. 
 
 539- Where servants of garage keeper take car vifithout authority. 
 
 540. Authorized use of property — Deviations. 
 
 541. Servant acting beyond his authority at the request of the owner. 
 
 542. Permitting use of car by incompetent persons. 
 
 543. Safe building. 
 
 544 Burden of proof of garage keeper's negligence. 
 
 545. Prima facie case of negligence by a garage keeper. 
 
 546. Criminal liability. 
 
 547- Functions of the court and of the jury. 
 
 § 528. Relation of garage keeper to his customer. — The storage 
 of motor vehicles in a garage is that form of bailment, known tech- 
 nically as locatio custodiae, which involves the letting of the care and 
 custody of a thing for hire. This is one of the mutual benefit bail- 
 ments, that is to say, it is for the benefit of both parties, the garage 
 keeper being what is commonly called a "bailee for hire."^° The rela- 
 tion of the parties to the bailment is one of contract express or im- 
 plied." 
 
 "McKinzie v. Fisher-Gibson Co., (Ind. App.), 108 N. E. 867. 
 "s-I^uisville Lozier Co. v. Louisville, 159 Ky. 178, 166 S. W. 767. 
 ^'Van Zile on Bailments, etc., 2d ed., sec. 132; Ford Motor Co. v. Osburn, 
 140 111. App. 633, 1908. 
 ^'Wharton on Negligence, 2d ed., sec. 435. 
 
 387 
 
§ 5^9 GARAGES AND GARAGE KEEPERS 
 
 Keeping of a car in. a garage by a pledgee is merely a bailment and 
 does not invalidate the pledge.^' 
 
 § 529. Commencement and termination of liability.— "The lia- 
 bility of the bailee in this class of bailments, is for the care and custody 
 of the property placed in his possession and control ; it therefore fol- 
 lows that his liability does not begin until he has the possession and 
 control of the property, and continues until the possession and control 
 is surrendered to the bailor, or his order or assigns, or to the rightful 
 owner."^* 
 
 § 530. Termination of Bailment. — "The relation can be termi- 
 nated at the will of the bailor, and by paying for the custody. So the 
 bailee must at all times upon reasonable demand and notice be ready 
 to deliver the property, for the purpose of the bailment has then been 
 accomplished."^' 
 
 The bailment may also "be terminated by the total or partial de- 
 struction of the subject-matter of the bailment, as where a chattel 
 is lost or is destroyed. It may also be terminated where the bailee 
 disposes of it contrary to the terms of the bailment." Misuse by the 
 bailee may also have the same effect.^" 
 
 § 531. Title of garage-keeper. — The garage-keeper "holds the 
 property for no other purpose than to care for it during the continu- 
 ance of the relation in accordance with the contract, and redeliver it to 
 the bailor upon the termination of the relation. He has no title to the 
 property except that possessory interest given him as bailee, and his 
 right to the possession ceases whenever he is guilty of fraud or bad 
 faith, or any misuse of the property."^^ 
 
 While the garage keeper's title is only possessory, that title is par- 
 amount to any claim except as to the title of the owner, "and during 
 the legal existence of the bailment, even the owner cannot disturb 
 the bailee in his possession, custody and use to the extent of the con- 
 
 "Darragh v. EUiotte, C. C. A. 6th dr., 21s Fed. 340. 
 
 isVan Zile on Bailments, etc., 2d ed., sec. 199; N. Y. L. E. & W. R. v. N. J. 
 Elec. Ry., 60 N. J. Law, 338, 341, 38 Atl. 828. 
 
 I'Van Zile on Bailments, etc., 2d ed., sec. 76, et seq., and 211. 
 
 20N. Y. L. E. & W. R. V. N. J. Elec. Ry., 60 N. J. L. 338, 343, 38 Atl. 828. 
 
 2iVan Zile on Bailments, etc., 2d ed., sec. 210. 
 
 388 
 
storage; and care op vehicles § 532 
 
 tract," or where the use is necessary to protect the property from in- 
 jury or loss.^^ 
 
 § 532. Rights of Action of Garage-Keeper.— A bailee having pos- 
 session in trust can maintain trover against every one except the bailor 
 on the theory that as against every one but the owner his possessory 
 interest is equivalent to actual ownership.^' So he can bring suit for 
 damages to a car stored with him.^* 
 
 But the custody of a garage keeper who is taking care of an auto- 
 mobile for the owner does not render him the owner for the purpose 
 of an allegation of ownership in a criminal complaint for larceny of 
 the automobile.^" 
 
 § 533- Duty of garage-keepers. — The duty imposed upon the ga- 
 rage-keeper in respect to the care of motor vehicles intrusted to him, is 
 similar in kind and degree to that in which liverymen are bound, and 
 the rules that control the one apply equally to the other. 
 
 Garage keepers are bailees for hire and bound to take the same care 
 of automobiles entrusted to them that men do of their own property.^" 
 LiabiUty may be predicated on failure to protect the upholstery in a 
 car from moths.^' 
 
 § 534. Garage keeper not an Insurer. — The liability of a garage 
 keeper is the same as the keeper of an ordinary stable for a horse and 
 carriage and he is in no sense an insurer.^' 
 
 In Hunter v. Ricke^' the defendants were stable-keepers who had 
 in their custody plaintiff's horses. The stable was destroyed by fire 
 and plaintiff sued, alleging negligence on the part of the stable-keepers. 
 The court by Mr. Justice Bishop, say : 
 
 "As the bailment was for hire, and therefore for the mutual 
 benefit of both parties, ordinary care was all that was required 
 at the hands of defendants. * * * Such a bailee cannot be 
 regarded as in any sense an insurer."^" 
 
 §, 535. Failure to redeliver to customer. — "Not only is the bailee 
 required to deliver the goods he has had in his custody to the bailor 
 
 "^Van Zile on Bailments, etc., 2d ed., sec. 47. See also Shaw v. Kaler, 106 
 Mass. 448; Harrington v. King, 121 Mass. 269, 271. 
 23Warren v. Finn, 84 N. J. L. 206; 86 Atl. 530. 
 
 2*Manlon v. lyoomis. Sanatorium, 162 App. Div. 421 ; 147 N. Y. S. 761. 
 "Staba V. State, (Tex. Crim. App.), 151 S. W. 543. 
 
 389 
 
§ 53^ GARAGES AND GARAGi; KEEPERS 
 
 at the termination of the bailment, but for a misdelivery, whether by- 
 mistake or negligence, he will be liable in trover ; for mistake or neg- 
 ligence in the performance of this duty which renders it impossible 
 for him to deliver the property, he will be held accountable the same 
 as though he had converted the property to his own use. He will be 
 held to know who his bailor is, and can have no legal reason for mak- 
 ing a mistake in delivery."'^ 
 
 § 536. Garage keeper's liability for damage to car taken out un- 
 authorizedly. — ^^The degree of care imposed on the garageman is that 
 which prudent men in the same business are accustomed to exercise. 
 Within such limits the bailee is clearly liable for lapse from diligence. 
 But when by reason of extraordinary circumstances or not ordinarily 
 to be expected occurrence, a car is taken out of his garage and injured 
 he will be excused. These cases usually depend upon their facts, and 
 are ordinarily resolvable by the jury. 
 
 Hence the question of the garage-keeper's liability is properly sub- 
 mitted to the jury where the owner's chauffeur darts out of the garage 
 with it before he could be stopped.^^ 
 
 A custom of garage keepers to let chauffeurs of the owners have 
 cars is not competent as it is a direct violation of the implied contract 
 which calls for reasonable care in its safe-keeping. The fact that the 
 owner had previously instructed the person who took the car how to 
 run it is not sufficient evidence of authority to take it.°^ 
 
 Where one to whom is intrusted the keeping of an automobile lets 
 another have it who wrecks it, the former is guilty of conversion." 
 
 28Roberts v. Kinky, 89 Kan. 885, 132 Pac. 1180, 45 L- R. A. (N. S.) 938. 
 
 Stevens v. Stewart- Warner Co., Mass. 1916. m N. E. 77i, upholding rule of 
 reasonable care under the circumstances. 
 
 2'Wimpfheimer v. A. T. Demarest & Co., 78 Misc. 171, I37 N. Y. S. 908. 
 
 28Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42; 135 N. W. 507; 45 t. R. 
 A. N. S. 314. Ann. Cas. 1913 E. 822. 
 
 2»i27 Iowa, 108, III. 
 
 s'See also Ford Motor Co. v. Osburn, 140 111. App. 633, 1908. 
 
 siVan Zile on Bailments, etc., 2d ed., sec. 208. 
 
 s^Wilson V. Wyckoff, 133 N. Y. App. Div. 92, 117 N. Y. Suppl. 783. 
 
 38McLain v. W. Va. Automobile Co., 72 W. Va. 738; 79 S. E. 73i ; 48 L- R- A- 
 N. S. S6i; Ann. Cas. 1915 O. 956. 
 
 8*Geren v. Hollenbeck, 66 Oregon 104, 132 Pac. 1164. 
 
 390 
 
STORAGE AND CARE OF VEHICLH^ § 537 
 
 § 537- Liability for theft of articles left with him.— The essence 
 and nature of the relation imposes upon the garage-keeper the duty 
 to exercise ordinary care and prudence according to the circumstances, 
 in guarding goods intrusted to him.'^ 
 
 This liability extends not only to the storage of the motor vehicle 
 iself, but also to the goods or property of the owner left in connection 
 with the machine, even though responsibility as to such goods is not 
 covered by the express terms of the bailment.'"' But it seems that in 
 the case of such articles, the attention of the garage keeper should be 
 especially called to them. 
 
 In McKillop V. Reich,'^ one Bergman, arranged with one Reich, who 
 kept a livery stable, to take care of such carriages as should be sent 
 from a distance in connection with a wedding entertainment. Pur- 
 suant to this arrangement, McKillop left two carriages in Reich's 
 stable and certain articles of personal property, especially calling 
 Reich's attention to the latter. When McKillop returned to the stable 
 the property had disappeared, and Reich failed to give any explana- 
 tion or reason for the disappearance. Mr. Justice Woodward, who 
 wrote the opinion, says : 
 
 "Under these circumstances, the rule is well established that 
 even a gratuitous bailee is liable for the value of the goods. 
 In Coykendall v. Eaton, 55 Barb. i88, 193, the rule is stated to 
 be that a bailee for hire, or a gratuitous bailee, who delivers the 
 ■ goods he has as such bailee, to a wrong party, or who after they 
 are demanded of him, does not in any way account for their 
 loss, is liable to the true owner for their value." 
 
 A garage or repair man may be found negligent where the owner 
 leaves a car for repairs in the alley back of the repair shop and it is 
 stolen during the day as the repairman left his shop closed and went off 
 on business of his own. The knowledge of the owner of the place 
 where the car was kept does not affect the liability of the defendant as 
 a bailee for hire.''* 
 
 '"Jones V. Morgan, 90 N. Y. 4. 
 
 88University Garage v. Reiser, 142 N. Y. S. 315 (N, Y. Sup. App. Term), 
 liability for gas tank stolen from car. 
 a'76 N. Y. App. Div. 334, 78 N. Y. S. 48s. 
 s'a-Stevens v. Stewart Warner Speedometer Co., Mass., iii N. E. 771. 
 
 391 
 
§ 53^ GARAGES AND GARAGE KEEPERS 
 
 § 538. Unauthorized use of vehicle by garage-keeper. — "The 
 bailee has no right to use the property that is placed in his care and 
 custody for keeping, or to use it in any way not consistent with the bail- 
 ment relation ; and should he at any time be guilty of using the chat- 
 tels for his own benefit, and in violation of the bailment relation, it 
 would terminate the bailment."^^ 
 
 Under the terms of the Massachusetts Act of 1909 (Ch. 534, sec. 
 22), and similar statutes in other states relating to motor vehicles, 
 there would arise also a criminal liability subjecting the unauthorized 
 user to heavy penalties, and in addition to the loss of his license and 
 probably, revocation of his certificate of registration on all his ve- 
 hicles.^^ 
 
 § 539- Where Servants of Garage-keeper take Car without Au- 
 thority. — Where the servants of the garage keeper take a car out 
 without authority his liability will depend on his negligence under the 
 general principles of agency. So a garage owner is liable for the act of 
 his foreman in taking off a customer's car on a joy ride where he knows 
 or should have known with proper supervision of the foreman's pro- 
 clivity to do that very thing.*" 
 
 But where a night attendant at a garage goes out to get lunch and 
 then comes back to get his coat and then takes out a machine stored 
 there on a pleasure ride with a friend the garage owner is not liable.*' 
 § 540. Authorized use of property — Deviations. — ^The general 
 rule is as set forth in the preceding section, but should it become the 
 garage-keeper's duty to test or "try out" the machine for the purpose 
 of ascertaining its condition or repair with reference to its fitness for 
 travel, such use would be consistent with his duty and with the terms 
 of the contract of bailment. If, however, the bailee employ the prop- 
 erty to an unwarranted extent, or for his personal convenience, then he 
 would become liable to the bailor either for damages or under certain 
 circumstances, for the conversion of tlie property.*^ 
 
 ssVan Zile on Bailments, etc., 2d ed., sec. 207; Bush v. Fourcher, 3 Ga. App. 
 
 43, 48, 59 S. E. 459- 
 
 2^See § SS6, where the act is quoted. 
 
 4oTravelers Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N. W. 703, 45 L. R- 
 A. N. S. 331- 
 
 *iFireman's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. S07. 45 I<- ^^ 
 A. N. S. 314, Ann. Cas. 1913 E. 822. 
 
 <2Van Zile on Bailments, etc., 2d ed. sees. 45, 46. As to deviations by servants 
 see further post §§ 882-900. 
 
 392 
 
STORAGE AND CARU OP VEHICLES § S4I 
 
 A garage keeper is liable for the negligent wrecking of an automo- 
 bile left with him for r€pair when the wrecking occurs while the car 
 was being tested by an employee after repairs, although the testing 
 trip was unnecessarily extended to accommodate a friend of the em- 
 ployee.*^ 
 
 So the defendant is liable although the servant drove the machine 
 cut of the straight course while taking it from the plaintiff's house to 
 the garage on an errand of his own as the servant's possession was 
 that of the master.** 
 
 § 541. Servant acting beyond his Authority at the request of 
 the Owner. — Where the garage keeper's servant has no authority to 
 drive a car the fact that the owner requests him to do so does not 
 render the garage-keeper liable for his negligence in so doing. So 
 where a department store maintains an automobile repair depart- 
 ment and a customer's car breaks down on the road and she tele- 
 phones for a man to fix the car and run it back to the city with her as 
 a passenger, and the store does send a man who fixes the car and then 
 while driving it back has an accident in which the plaintiff is injured 
 the department store company is not liable. It does not undertake 
 to carry persons as passengers. There was no authority in its agents 
 to agree to do so.*^ 
 
 § 542. Permitting use of car by incompetent persons. — There are 
 occasions when the garage-keeper is placed in a position of embarrass- 
 ment. Such occasion may arise when a person, of whose competency 
 as a driver the garageman is ignorant, applies with authority from 
 the owner, express or implied, to take an automobile belonging to a 
 customer out of the garage. In some such cases, where accidents have 
 occurred by reason of the incompetency of such a person, the question 
 of the custody of a dangerous agency has been raised and the unfor- 
 tunate garage-keeper has found himself in the position of a defendant, 
 sued for damages for negligently permitting an incompetent person 
 to secure control of a dangerous instrumentality intrusted to his care. 
 While the courts, generally, have held that the automobile is not a 
 dangerous instrumentality as such, they have nevertheless, allowed the 
 question of negligence in this regard to be raised. 
 
 ^'Roberts v. Kinley, 89 Kan. 885, 132 Pac. 1180, 45 L. R. A. (N. S.) 938. 
 **Southern Garage Co. v. Brown, 187 Ala. 484, 65 So. 400. 
 *5Wanamaker v. Gresh, 237 Penn. 13; 84 Atl. 1108. 
 
 393 
 
§ 543 GARAGES AND GARAGE KEEPERS 
 
 In Lewis v. Amorous*" the defendant, Amorous, owned an auto- 
 mobile, which he kept at a garage operated by the co-defendants, In- 
 man and Toole, which was "run for the purpose of selling, handling, 
 renting and repairing automobiles." It was alleged that the garage 
 proprietors negligently permitted the automobile to be taken out of the 
 garage by an incompetent person — the son of the owner of the car. 
 The plaintiff invoked the doctrine of custody of a dangerous agency. 
 Mr. Justice Powell remarked that it could not for a moment be con- 
 ceded that it would be negUgence for a person to leave "an automobile 
 in a shop or garage without chaining it down or locking it in." The 
 court held that while the automobile is not a dangerous agency as 
 such, nevertheless, "in running, automobiles are dangerous machines," 
 and that in the absence of statute, the responsibility of persons keep- 
 ing "motor cars, will be determined according to the precedents of 
 common law." The court absolved the garage-keepers in this case 
 from the charge of negligence in permitting the son to take the car, 
 on the ground that the young man was not "an irresponsible child, but 
 was a conscious agent who had long since arrived at the age of discre- 
 tion." 
 
 In some of the states there are statutes which relate to "permitting" 
 the use of cars by incompetent or unauthorized persons. While there 
 seems to be no case bearing directly upon the point, still without 
 doubt, there attaches to the garage-keeper some degree of responsi- 
 bility concerning the letting out of the car to a person of whose in- 
 competency to operate, he is ignorant. Chief Justice Poland, in Had- 
 ley V. Cross,*^ forcefully expresses concerning livery stable keepers, 
 what the law will hold to be a true rule on this subject He says : 
 
 "In any business involving the personal safety and lives of 
 others, what is due care, reasonable diligence? Clearly noth- 
 ing less than the most watchful care and the most active dili- 
 gence; anything short of this is negligence and carelessness, 
 and would furnish clear ground of liabiUty if any injury was 
 thereby sustained." 
 
 § 543. Safe building.— A garage proprietor, like a livery stable 
 keeper, is required "to exert in his calling the diligence which good 
 business men in this specialty are accustomed to exert. This obliga- 
 
 «3 Ga. App. 50, 59 S. E. 338. 
 *^34 Vt. S86. 
 
 394 
 
STORAGE AND CARH) 01? VEHICLES § 543 
 
 tion involves, among other things, a duty to taice reasonable care that 
 any building used for the purpose is in a proper state, so that the thing 
 deposited may be reasonably safe in it ; but no warranty or obligation 
 is to be implied by law on his part that the building is absolutely 
 safe."" 
 
 "The reasonable diligence required of the custodian applies to the 
 place in which he stores the property, and the kind of care and cus- 
 tody he gives to the property while in storage." It is essential in 
 determining these questions, to consider "(i) the nature and value of 
 the article; (2) the customs of the place or trade; (3) the condition 
 of the country or climate, and (4) the condition of the times." What 
 would be a suitable building for the storage of carriages, might be 
 totally unsuitable for the storage of motor vehicles, and the customs 
 adopted by livery stable keepers in connection with the care of car- 
 riages, would be wholly impossible with reference to the care of the 
 complicated mechanism of automobiles. Again, with the constant 
 progress in the appliances connected with automobiles, what would 
 have been considered proper conditions a few years ago, might be 
 improper at the present time. "The diligence of yesterday may be 
 the negligence of to-day. The custodian for hire is bound to keep pace 
 with the advanced requirements and practice of his class. If he does 
 this he escapes liability when loss or injury comes to the property in- 
 trusted to him; if he fails, he has failed to be ordinarily diligent and 
 is liable for the damages that result because of this failure. Not that 
 it is necessary in order to escape liability, to adopt and use the very 
 best and newest of these appliances and inventions for the purpose of 
 securing safety and protection to their customers, but that they are 
 bound to use such as the ordinarily prudent custodians of their class 
 are using ; such as are ordinarily used and demanded at the place and 
 the time, and by those engaged in like pursuits."*' 
 
 *'Wharton on Negligence, 2d ed., sec. 693. 
 
 *'Van Zile on Bailments, etc., 2d ed., sees. 200, 201. In Ford Motor Co. v. 
 Osburn, 140 111. App. 633, 1908, an automobile case, the court held that "upon 
 receiving an automobile for repairs to be made for the mutual benefit of the 
 owner and the repairer, the repairer becomes a bailee for hire, responsible 
 for a failure to exercise ordinary care," and that in the absence of a showing of 
 failure to exercise ordinary care, a bailee for hire is not liable for the destruction 
 by fire of the thing bailed." 
 
 395 
 
§ 544 GARAGES AND GARAGU KEEPERS 
 
 § 544. Burden of proof of garage-keeper's negligence. — As a 
 general rule the burden of proof is upon the bailor to prove that the 
 bailee was guilty of negligence. "He is not liable for loss or injury 
 that is caused, (i) by the act of God, for example, lightning, earth- 
 quake, tornadoes, storms and the like; or (2) by the act of the public 
 enemy; * * * or (3) by inevitable accident as by fire, burglary, 
 etc., unless by exercising ordinary diligence, loss by reason of these 
 causes could have been averted." When due diligence in these par- 
 ticulars is made apparent, the burden of showing that by exercising 
 reasonable care and diligence the loss or injury could have been averted, 
 is upon the bailor.^" 
 
 And "the burden of proving negligence never shifts from the plain- 
 tiff."" 
 
 In Ford Motor Co. v. Osburn'^ the court say : 
 
 "We are of opinion that the automobile was not unreasona- 
 bly detained by the defendant, and that the defendant was a 
 bailee of it, at the time of the fire, and that it was in its pos- 
 session at plaintiff's risk. Proof of the destruction of the auto- 
 mobile by fire having been made, it was incumbent on the plain- 
 tiff to prove want of ordinary care, or negligence, on the part 
 of the defendant." 
 
 50 where a car is destroyed by fire while in a building near the 
 garage the burden of proving the negligence of the garage keeper in 
 whose custody the car was remains on the owner.^^ 
 
 § 545- Prima facie case of negligence by a garage-keeper.— When 
 there is proof that the property was delivered to the garage-keeper in 
 good condition, and that he failed to produce it in condition similar 
 to that in which he received it, a prima facie case of negligence is 
 made out." 
 
 In Claflin v. Meyer^^ Mr. Justice Hand, says : 
 
 "The cases agree that where a bailee of goods, although lia- 
 ble to their owner for their loss only in case of negligence, fails, 
 
 ooVan Zik on pailments, etc., 2d ed., sec. 202; Hunter v. Ricke, 127 la. 108, 
 102 N. W. 826. 
 
 51 See § 1652- 
 
 52140 111. App. 633, 643- 
 
 ssAllen v. Fulton Motor Car Co., 128 N. Y. S. 4I9- 
 
 BiParry v. Squair, 79 111. App. 324. 
 
 B675 N. Y. 260, 262. 
 
 396 
 
storage; anu card of vamcLEs § 546 
 
 nevertheless, upon their being demanded, to deliver them or ac- 
 count for such non-delivery, or, to use the language of Suther- 
 land, J., in Schmidt v. Blood, where 'there is a total default in 
 delivering or accounting for the goods' (9 Wend. 268), this is 
 to be treated as prima facie evidence of negligence. * * * 
 This rule proceeds either from the assumed necessity of the case, 
 it being presumed that the bailee has exclusive knowledge of 
 the facts and that he is able to give the reason for his non- 
 delivery, if any exist, other than his own act or fault, or from a 
 presumption that he actually retains the goods and by his re- 
 fusal converts them." 
 
 "But when the loss or injury is accounted for as having been occa- 
 sioned by some of the causes which excuse the bailee, then the defense 
 is complete unless the plaintiff further shows that the bailee by exer- 
 cising ordinary diligence might have avoided the loss or injury."^^ 
 
 So in an action against a garage company for injury to an automo- 
 bile the burden is on the defendant to show that the machine was not 
 damaged by want of due care while in the possession of its servant.^' 
 .§ 546. Criminal liability. — "Should the bailee with intent to de- 
 prive the bailor of his property, and without his consent, convert the 
 same to his own use, he would be guilty of embezzlment. Embezzle- 
 ment is said to be a species of larceny, and the term is applicable to 
 cases of stealing by agents, clerks, or carriers, of property coming into 
 their possession by virtue of their employment."^^ 
 
 § 547. Functions of the court and of the jury. — In negligence 
 cases involving garage-keepers, like all others involving due care, the 
 questions of diligence or negligence are generally mixed questions of 
 law and fact. The standard of diligence required in a given case to 
 be exercised by the bailee, or the degree of negligence that will render 
 him liable, are matters of law for the court. Whether it has been 
 proven in the particular case that the bailee has in fact exercised the 
 diligence required or has failed therein through negligence, are ques- 
 tions for the jury. The principles of law as defined by the court, 
 determine the character of diligence and negligence, and the facts de- 
 termine whether the bailee has exercised that diligence or failed therein 
 through negligence."' 
 
 ^^Van Zile on Bailments, etc., 2d ed., sec. 204. 
 ^'Southern Garage Co. v. Brown, 187 Ala. 484, 65 So. 400. 
 58Van Zile on Bailments, etc., 2d. ed., sec. 210. 
 5° Van Zile on Bailments, etc., 2d ed., sec. 41. 
 
 397 
 
§ 548 GARAGES AND GARAGE KEEPERS 
 
 III. Rbnting 
 
 548. Hiring of vehicles. 
 
 549. Contract made on Sunday. 
 
 550. Degree of diligence demanded. 
 
 551. Garage keepers not common carriers. 
 
 552. Duty to provide a safe vehicle. 
 
 553- Evidence of unsafe vehicle. 
 
 554- Duty to get customer when car breaks down. 
 
 555- Obligation to guests of hirer. 
 
 SS6. Effect of statutes relating to unauthorized use. 
 
 SS7- Liability of lessee for care of hired vehicle. 
 
 558. Deviation from route by hirer. 
 
 SS9- Renting car to incompetent person. 
 
 560. Rule of respondeat superior. 
 
 561. Duty to provide a competent driver. 
 
 § 548. Hiring of vehicles.*" — ^The hiring of a motor vehicle is al- 
 ways a matter of contract involving the law of bailments. The rights 
 and responsibilities of the respective parties are to be determined by 
 the terms of the contract. When one person hires something of an- 
 other, he becomes "entitled to the thing and its use for the purposes of 
 the bailment."'^ Thus, if one hires a vehicle to go to a definite place, 
 he is not limited to any particular route to reach that place, but if he 
 pursues a course which so far departs from the direct route, as to un- 
 duly extend the terms of the contract, he violates the same.'" Gen- 
 erally it may be said, that the breaking of the terms of a contract for 
 hiring, amounts to a conversion of the bailor's property to the use of 
 the bailee.*' 
 
 § 549. Contract made on Sunday. — A contract made on Sunday 
 for hire of an automobile for pleasure riding is not enforceable as it 
 is void. A new promise to pay made on a week-day was founded on 
 no new consideration and was also void. The original promise was 
 made in furtherance of a crime.®* 
 
 But the fact that the contract is void as made on Sunday does not 
 
 '"See § S22, et seq., Garages. 
 siVan Zile on Bailments, etc., 2d ed., sec. 122. 
 '^Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369. 
 
 »»Van Zile on Bailments, etc., 2d ed., sees. 63, 123, 124, 125 ; Palmer v. Mayo, 
 80 Conn. 353. 3SS. 68 Atl. 369. 
 8* Jones V. Belle Isle, 13 Ga. App. 437, 79 S. E. 357- 
 
 398 
 
rh;nting § 550 
 
 alter the liability of the garage keeper for the negligence of his 
 driver.'^ 
 
 § 550. Degree of diligence demanded.— "One who keeps horses 
 and carriages for hire is not a common carrier, but, in the discharge of 
 the duties which he has assumed he is held to that degree of care 
 which a prudent man, having due regard to his social obligations would 
 bestow in the discharge of the same undertaking : he is bound to exert 
 a measure of care and skill appropriate to the particular employment."'" 
 
 § 551. Garage-keepers not common carriers." — A "common car- 
 rier" of passengers is one who undertakes for hire, to carry all persons 
 indifferently who may apply for passage. To constitute one a com- 
 mon carrier, it is necessary that he should hold himself out to the com- 
 munity as such.'* 
 
 A livery stable keeper not being a common carrier, is under no 
 obligation to carry anyone, or to let his vehicle to every person who 
 may apply. The relation being wholly one of contract between the 
 lessor and the lessee, neither party can be forced into the making of 
 the contract. But if the contract be entered into, then it becomes the 
 duty of the liveryman to exercise that degree of care and skill which 
 a prudent man, having regard to the circumstances or the occasion, 
 would bestow in such a matter.'* 
 
 One who rents cars occasionally is however a private carrier and is 
 bound to exercise ordinary diligence to carry his passengers safely.^" 
 
 § 552. Duty to provide a safe vehicle.'^ — Whenever the garage- 
 keeper lets a vehicle for hire to a customer, it becomes his duty to 
 exercise that degree of care and skill in the selection of the vehicle he 
 
 85Gerretson v. Rambler Garage Co., 149 Wis. 528, 136 N. W. 186, 40 L. R. A. 
 N. S. 457, 6 N. C. C. A. 368. 
 
 «*Thompson, Com. on Negligence, 2d ed., sec. 2537; Van Zile on Bailments, 
 etc., 2d ed., sees. 164, 198. See also McGregor v. Gill, 114 Tenn. 521, 523; Dem- 
 ing V. Johnson, 80 Conn. 553, 69 Atl. 347. 
 
 "See § 1 194, et seq., Passengers. 
 
 '^McGregor v. Gill, 114 Tenn. 521; Story on Bailments, sec. 495. 
 
 ''McGregor v. Gill, 114 Tenn. 521; Payne v. Halsted, 44 111. App. 97, 102; 
 Story on Bailments, sec. 495; Thompson, Com. on Negligence, 2d ed., sees. 
 25. 37- See also Siegrist v. Arnot, 86 Mo. 200, 20S, 56 Am. Rep. 424. 
 
 "Forbes v. Reinman, 112 Ark. 417, 166 S. W. 563, 51 h- R. A. N. S. 1164, 
 6 N. C. C. A. 367. 
 
 ^^See § 220, et seq. 
 
 399 
 
§ 552 GARAGES AND GARAGE KEEPERS 
 
 sends, which a prudent man having regard to the circumstances or the 
 occasion, would bestow in such a matter/" 
 
 The garage-keeper is not liable for a latent defect as where a brake 
 rod breaks,'' but he is responsible where he rents a car known to be 
 defective.'* 
 
 In Van Zile on Bailments and Carries, 2 Ed., sec. 123, it is said : 
 
 "It cannot be said that there is an implied warranty on the 
 part of the bailor that the thing is fit for the purposes of the 
 bailment, or that its use would not result in danger to the 
 bailee; and yet the obligation of the bailor is very nearly that. 
 So far as he knows, his obligation is a warranty that the thing 
 is fit for the use for which it was hired and that its use is not 
 dangerous if in its use the bailee exercises ordinary care. And 
 the bailor is bound to know the full facts, if by exercising at 
 least ordinary care he could ascertain them. And if the thing 
 hired for use might in its use be dangerous, and results in death 
 or great bodily harm, then the bailor will be held to have 
 known that its use was dangerous and would so result, if by 
 exercising a high degree of diligence he might have known. If 
 the bailor gave notice of the defect, and, disregarding it, the 
 bailee hired the thing, and by its use was damaged because of 
 its unfitness, in such case the bailor would be relieved of liabil- 
 ity; and so if the defect was a latent defect, and by careful 
 examination could not have been discovered by the bailor, and 
 was not known to him at the time of the hiring of the thing, 
 And so it has been held that the plaintiff bailee could recover 
 in an action for personal injuries caused by the sudden collapse, 
 while in ordinary use, of a bicycle leased by defendant to plain- 
 tiff ; the complainant alleging defects in construction, and that 
 the machine was not strong enough for ordinary use, which 
 allegations were not denied." 
 
 The case of Hadley v. Cross" was one in which the plaintiff hired 
 from the defendant, a livery stable keeper, a horse, wagon and harness, 
 to go on a journey. While on such journey the wagon was found to 
 be unsafe and insufficient for the purpose, resulting in injury. The 
 
 ' '^McGregor v. Gill, 114 Tenn. 521, S23, 86 S. W. 318, by Beard, C. J.; Payne v. 
 Halstead, 44 111. App. 97, 102; Wharton on Negligence, 2d ed., sec. 693. 
 
 TSJohnson v. Coey, 237 III. 88, 86 N. E. 678, 21 L. R. A. N. S. 81. 
 
 r^Neubrand v. Kraft, 169 Iowa 444, 151 N. W, 4SS. 
 
 ^"34 Vt. 586. 
 
 400 
 
RENTING § 552 
 
 court, affirming the charge of the court below, quote Ingalls v. Bills'" 
 with approval. The judge, at the trial, instructed the jury : 
 
 "That it was the duty of the defendant, by law, to furnish 
 the plaintiff with a carriage and harness reasonably strong, 
 safe, and secure for the journey for which they were hired 
 (with one qualification named below) ; that it was not a suffi- 
 cient compliance on the part of the defendant with his duty in 
 this respect, merely to provide himself with safe and secure 
 carriages and harnesses, and continue to let them from time to 
 time without examination, till they should break or give way, 
 and then repair and supply them ; that it was his duty, by pru- 
 dent examination and careful and particular inspection from 
 time to time, to keep them reasonably safe and secure, so that 
 they should be so when let ; that it was not sufficient that they 
 were apparently so to a casual observer on a general view with- 
 out a particular examination; if they were suffered to go out 
 to a customer with a defect that could be discovered by a pru- 
 dent, careful, particular and critical examination by a man 
 reasonably skilled in such matters, which would render them 
 unsafe, the defendant would be responsible for the conse- 
 quences ; that if he should suffer them to go out without such 
 inspection, it would be at his peril as to such defects, if there 
 should happen to be such at the time he delivered them; that 
 if there was any secret which he neither knew of nor sup- 
 posed to exist, and which could not be observed or discovered 
 by such prudent, careful, particular and critical examination, 
 for such defects, he would not be responsible; that it was not 
 sufficient that the defendant, when he let the horse and car- 
 riage, believed it was safe; but the question was how it was 
 in fact ; that it was no excuse for the defendant that he did not 
 know of any defect if he could have known it by such examina- 
 tion and inspection as above described; and if so, it was the 
 same as if he did know it, so far as related to the plaintiff's 
 right to recover." 
 
 Chief Justice Poland, in writing the opinion of the Supreme Court, 
 supplements the foregoing as follows : 
 
 "In any business involving the personal safety and lives of 
 others, what is due care, reasonable diligence? Clearly noth- 
 ing less than the most watchful care and the most active dili- 
 gence; anything short of this is negligence and carelessness, 
 
 '"SO Mass. I. 
 
 401 
 26 
 
§ 553 GARAGES AND GARAGE KEEPERS 
 
 and would furnish clear ground of liability if an injury was 
 thereby sustained."''' 
 
 Where the plaintiff hires a car with a driver, and the driver stops 
 the car and leaves it when it starts of itself and injures the plaintiff the 
 defendant is liable as the accident was caused either by the car being 
 out of repair or by the negligence of the driver." 
 
 § 553- Evidence of unsafe vehicle.— It is competent to prove as 
 evidence of negligence in the letting of a vehicle, that on a previous 
 occasion, not long antecedent to the time in question, the machinery 
 acted improperly, or that it was defective in construction, or unable to 
 do its proper work through use or because of defect in design." 
 
 § 554. Duty to get Customer when Car Breaks Down.— Where 
 the defendant contracts to carry the plaintiff in an automobile, which 
 breaks down, the defendant is bound to send another machine to take 
 the plaintiff. Where the plaintiff waits a reasonable time and the de- 
 fendant fails to send after him he is entitled to recover for his pain 
 and inconvenience in walking back to town.'" 
 
 § 555. Obligation to Guests of Hirer. — The duty of care imposed 
 on the garage-keeper in renting cars extends to guests of the hirer 
 where it is to be expected he will take guests. So where a man hires a 
 five passenger car with a chauffeur it is to be expected that he will take 
 his friends with him and the owner of the car owes the passengers the 
 duty of reasonable care for their saf ety.^^ 
 
 § 556. Effect of statute relating to unauthorized use.'^ — Deter- 
 mination of responsibility is not free from difficulty when it comes 
 to applying statutes declaring criminal the unauthorized use of motor 
 vehicles, to hirers who intentionally violate the terms of their bail- 
 ment. Such persons have lawfully come into possession of the ve- 
 hicle and their use of the car is an authorized use under the contract 
 
 ''The foregoing remarks of the Chief Justice are quoted and adopted by 
 the Supreme Court of Connecticut in Stanley v. Steele, ']^ Conn. 688, 690, 60 
 Atl. 640. See also Iteming v. Johnson, 80 Conn. 553, 69 Atl. 347; Johnson v. 
 Coey, 237 111. 88, 86 N. E. 678. 
 
 '^Wallace v. Keystone Automobile Co., 239 Pa. no; 86 Atl. 699. 
 
 ''The European, 10 L. R. Prob. Div. 99. 
 
 soTaxicab Co. v. Grant, 3 Ala. App. 393, 57 So. 141. 
 
 siRodenburg v. Clinton Auto. & Garage Co., 84 N. J. L. S45. 87 Atl. 71. 
 
 s^See § 899. 
 
 402 
 
RENTING § 557 
 
 of hiring. If they misuse the machine by taking it elsewhere than 
 contemplated or the like, they violate the contract. But it is not so 
 clear that such a misuse becomes an unauthorized use in the criminal 
 sense contemplated by the statute. It is always to be remembered that 
 criminal statutes are to be strictly construed, and that they cannot be 
 extended to include matters and persons not clearly within their scope. 
 On the other hand, it is easy to conceive such a flagrant and gross 
 violation as to be an abuse of the contract and render the use of the 
 machine unauthorized. The provision of the Massachusetts statute 
 is sweeping. It does not discriminate between possible relations which 
 the user may occupy to the owner. The language is : "Whoever upon 
 any way operates an automobile or motorcycle recklessly * * * or 
 who uses a motor vehicle without authority, shall be punished,"'^ which 
 leaves the matter in this particular resting upon the point that anybody 
 who uses such a vehicle without having the right to use it, shall incur 
 the penalty. No reported case has been found decided under a statute 
 similar to that quoted wherein a hirer was involved. No doubt when 
 such a case does arise it will present circumstances peculiar to itself 
 which will render its solution easier than any to be discovered in an 
 abstract consideration of the proposition. It seems probable that the 
 line between civil liability under the contract and criminal liability un- 
 der the statute, will be found to lie in the extent or degree of the mis- 
 use by the hirer taking the case wholly out from under the contract 
 and planting it in the statute. 
 
 § 557. Liability of lessee for care of hired vehicle. — The hirer of 
 a vehicle is liable to the garage-keeper from whom he hired the ma- 
 chine, for the want of reasonable care and skill in driving, and for 
 failure to exercise such prudence and caution as the circumstances 
 require. In a previous section in this chapter''* there has been dis- 
 cussed the duty of the garage-keeper to inquire into the competency 
 of a driver before permitting the vehicle to go upon the highway, 
 but such discussion was with reference to the safety of the public 
 in general. The point now rests upon the question as between the 
 garageman and the hirer in case of injury to the vehicle by reason of 
 the incompetency of such hirer, and as to questions of negligence aris- 
 ing exclusively between the parties to the contract of hiring. Mooers 
 
 ''A. 1909, c. 534, s. 22. 
 
 403 
 
§ .5S8 GARAGES AND GARAGE KEEPERS 
 
 V. Larry'* was a case in which Mooers, a livery stable keeper, sued the 
 hirer for injury to a horse which had been hired from him by the de- 
 fendant, and which the defendant drove so unskilfully that the animal 
 was injured. Plaintiff testified that he supposed, at the time of the 
 letting, "that the defendant could drive a horse as well as the rest of 
 such young men who hire horses." 
 
 "By the court. By the contract of hiring, the defendant 
 agreed to use reasonable care and skill ; and unless there was a 
 manifest incapacity of the defendant to use such care and skill, 
 * * * it was immaterial whether the plaintiff expected or had 
 reason to expect that the defendant would be careless or un- 
 skilful or not."^' 
 
 § 558. Deviation from route by hirer. — In Deming v. Johnson" 
 the court held that wilful and substantial deviation from the route 
 or destination for which a horse and carriage are hired of a livery 
 stable keeper, will bar a recovery by the hirer for injuries sustained 
 while so deviating. The question in such case is not one of con- 
 tributory negligence, but whether the wrongful act in driving upon a 
 different route, in violation of the contract of hiring, contributed to the 
 injury. 
 
 § 559. Renting Car to Incompetent Person. — ^A garage owner is 
 not liable where he rents his car to one who drives it himself unless the 
 hirer is manifestly unfit, as in case of an intoxicated person or a child, 
 to drive and control it. No liability is shown where the hirer is a man 
 accustomed to the use of automobiles and, although he had never driven 
 this particular make, received instruction in handling it.'^ 
 
 § 560. Rule of respondeat superior. — The bailee is responsible to 
 the bailor as well as to third parties for the acts of his servants on 
 the principle of respondeat superior, but, in addition, "the servants 
 of the bailee are responsible to the bailor for their malfeasances, not 
 because they are servants of the bailee, but because they are active 
 wrong-doers to the bailment."** 
 
 8*81 Mass. 45 1. 
 
 ssSee also N. Y. L. E. & W. R. v. N. J. Elec. Ry., 60 N. J. Law, 338, 344 
 38 Atl. 828. 
 8880 Conn. SS3. As to deviations by agent, see post, § 882, et seq. 
 s^Neubrand v. Kraft, 169 Iowa 444, 151 N. W. 455. 
 88N. Y. L. E. & W. Ry. v. N. J. Elec. Ry., 60 N. J. Uw, 338, 34S, 38 Atl. 828. 
 
 404 
 
REPAIR 0^ VEHICLES § 561 
 
 § 561. Duty to provide a competent driver.*' — In letting motor 
 vehicles for hire, the duty of the garage-keeper is to exercise reasona- 
 ble care, and prudence demands that he shall select and send in charge 
 of the vehicle, only competent drivers, having regard to the circum- 
 stances of the particular occasions.^" 
 
 Benner Livery & U. Co. v. Busson°^ was a case in which the plaintiff 
 hired from the defendant, who was an ordinary livery stable keeper, 
 horses, carriage and driver, to take his sick wife from one town to 
 another. It was claimed that the "defendant furnished a very old, 
 unskilful and negligent driver and horseman," by reason of which the 
 accident occurred causing the injury complained of. The court by 
 Mr. Justice Green, say : 
 
 "It was the duty of appellant, as a carrier of passengers, to 
 furnish a driver competent, skilful and careful ; Tuller v. Tal- 
 bot, 23 111. 357, 2d Wait's Act & Defen., pp. 63, 64, 65, 68, 69; 
 and to use that care, vigilance and foresight under the circum- 
 stances, and in view of the service undertaken and the mode of 
 conveyance adopted, as would reasonably guard against and 
 prevent accidents and consequent injury to passengers; and 
 slight neglect or want of care in this regard, created liability 
 to respond in damages for the injuries thereby occasioned." 
 
 IV. The Repair of Motor Vehici.es 
 
 562. Practice of garages. 
 
 563. The contractual relation of the parties. 
 
 564. Contract vitiated by agreement to give secret commissions to chauffeur. 
 
 565. Work done without authority. 
 
 566. Amount of compensation. 
 
 567. Evidence of overcharging other customers. 
 
 568. Claim for repairs as defense to replevin. 
 
 569. Defence that repairs improperly made. 
 
 570. Responsibility for competency and diligence. 
 
 571. Unreasonable detention. 
 
 572. Delegation of duty. 
 
 573. Duty of the repairer. 
 
 574. Skilled labor. 
 
 575. Extraordinary skill. 
 
 576. Burden of proof, etc. 
 
 s'See § 542. 
 
 ^"McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318; Payne v. Halsted, 44 111. App. 
 97, 103; Perez v. New Orleans, etc., R., 47 La. Ann. 1391, 17 So. 869; Story on 
 Bailments, sec. 495; Thompson Com. on Negligence, 2d ed., sees. 25, 37. 
 
 0158 111. App. 17, 20. 
 
 405 
 
§ 5^2 GARAGUS AND GARAGB KEEPERS 
 
 § 562. Practice of Garages. — The practice is daily becoming more 
 common for the garage-keeper to be the general repairman for the 
 owner of the machine intrusted to his care. More frequently than not, 
 in conjunction with the garage, there is a general repair shop for motor 
 vehicles where not only common repairs are made, but extraodinary 
 work is performed. It is not unusual for the garage-keeper in per- 
 forming his duties as repairman, to take down a car or an engine and 
 reassemble it, repairing or altering such parts as the contract may re- 
 quire. He is even called upon at times to rebuild the machine, supply- 
 ing new parts, attachments and appliances, in the doing of which skilled 
 labor is required. 
 
 § 563. The contractual relation of the parties. — In the matter of 
 repairs, the relation between the repairman and his employer is one of 
 contract. To be binding on both parties the contract should be made 
 between the repairer or his duly authorized agent and the owner of 
 the automobile or the person responsible for the payment of the bill. 
 A chauffeur, by virtue of his position, does not possess implied au- 
 thority to contract for general repairs. While in travel he may bind 
 his employer in ordering such repairs of a temporary character as will 
 enable him to continue his journey, he has no authority to contract for 
 repairs of a permanent character.^^ It is entirely immaterial whether 
 the work contracted for was necessary or not.°^ 
 
 An agreement to furnish necessary new parts up to a certain date 
 imposes no liability after that date..'* 
 
 § 564. Contract vitiated by agreement to give secret Commis- 
 sions to Chauffeur. — Where the garage-keeper makes an agreement 
 prohibited by law to give the chauffeur a commission on repairs and 
 supplies he cannot recover for repairs and supplies furnished. The 
 transaction is so tainted with illegality that on grounds of pubUc policy 
 no action can be maintained.*' 
 
 § 565. Work done without Authority. — The garage-keeper can- 
 not generally recover for repairs made where he has no express order 
 
 92Gage V. Callanan, 57 Misc. 479, 109 N. Y. Supp. 844. See § 261. 
 '^Morris v. Fisk Rubber Co., 150 Ala. 150, 43 So. 483, reshoeing old tires. 
 9*Barry v. American Locomotive Auto Co., 113 N. Y. Supp. 826, App. Term. 
 '^General Repair Co. v. Price, 123 App. Div. 789, rig N. Y. Supp. 171. 
 
 406 
 
REPAIR OF VEHICLES § 566 
 
 from the defendant,^" although he may recover on an implied promise 
 where he permitted the repairs to be made.*^ 
 
 Where an automobile is in a garage for repairs when a fire occurs 
 there if the garage owners have the fire damage to the car repaired 
 without any agreement on the owner's part to pay for it they cannot 
 recover for it.°* 
 
 Where a car breaks down on the road and the garage man takes it 
 in to his garage and repairs it he may recover storage charges as the 
 chauffeur had authority to place the broken-down car in the garage 
 for safe keeping but he has no claim for the repairs made without 
 order from the owner.'* 
 
 § 566. Amount of Compensation. — Where an owner takes his car 
 to a garage to be repaired and no agreement is made as to the com- 
 pensation, the law implies a promise to pay what the repairs were rea- 
 sonably worth.^"" 
 
 § 567. Evidence of Overcharging other Customers. — On an issue 
 whether a garage owner has repaired a car improperly and overcharged 
 for it the customer cannot put in evidence that the garage owner has 
 done inefficient work and overcharged other customers. Such evidence 
 only shows individual cases similar to those complained of and does 
 not show such a relevant course of conduct as to show that such con- 
 duct was general and continuing at the time work was done on the car 
 in question.^ 
 
 § 568. Claim for Repairs as Defense to Replevin. — Where the 
 plaintiff leaves an automobile with the defendant for repairs and sub- 
 sequently brings replevin for it the cost of making the repairs is so 
 connected with the possession of the property as to constitute it a 
 proper subject of counter-claim.^ 
 
 § 569. Defense that Repairs improperly Made. — It is always a 
 defense to a claim for repairs that they were improperly made. In an 
 
 98Hamann v. Leahy, 124 N. Y. S. 1018, 140 App. Div. iS3. 
 '^Overland Sales Co. of New York v. Kaufman, 76 Misc. 230, 134 N. Y. S. 599 
 (N. Y. Sup.). 
 ssHelber v. Schaible, 183 Mich. 379, 150 N. W. 14S. See § 261. 
 9'Gage V. Callanan, 57 Misc. 479, 109 N. Y. Suppl. 844. 
 looHelber v. Schaible, 183 Mich. 379, 150 N. W. 145. 
 iPandle v. Barden, (Tex. Civ. App.), 164 S. W. 1063. 
 ^Shore v. Ogden, 55 Ind. App. 394; 103 N. E. 852. 
 
 407 
 
§ 570 GARAGES AND GARAGE KEEPERS 
 
 action for repairs to an automobile the defendant may show that certain 
 repairs made by the plaintiff were improperly done and had to be done 
 over and may show by an expert the cost of repainting and other work 
 necessary by reason of the plaintiff's negligent treatment of it.^ But the 
 fact that the repairman cracked a crank shaft in endeavoring to 
 straighten it does not prove that he was negligent.* 
 
 Where the defendant gives a note to a garage-keeper to obtain his 
 car on which the latter is claiming a lien he cannot subsequently refuse 
 to pay the note on the ground that the repairs were not properly done 
 as the note was a compromise of this question.^ 
 
 § 570. Responsibility for Competency and Diligence. — The gen- 
 eral rule is that the repairer must "perform the work well, using the skill 
 and judgment required and which the workman claimed would be used 
 upon the subject-matter" covered by the contract." 
 
 The bailee "is answerable for all defects, whether due to his own 
 want of skill or to that of his workmen." "In this species of bail- 
 ments every man is presumed to possess the ordinary skill requisite to 
 the due exercise of the art or trade which he assumes."^ He is ex- 
 pected to apply that skill with diligence, and is liable if he fails to do 
 so.* The burden of showing the negligence rests with the plaintiff.' 
 
 Where the defendant takes an automobile to repair it gratuitously 
 and injures it while testing it he is still a gratuitous bailee And is liable 
 only for gratuitous neglect or bad faith.^" 
 
 § 571. Unreasonable Detention. — It seems that if a garage owner 
 detains a car an unreasonable length of time while repairing it the 
 owner of the car may recover damages for so doing." So in an action 
 
 sHolcomb Co. v. Clark, 86 Conn. 319; 8s Atl. 376. 
 
 *Gill & Sons V. Detroit-Cadillac Motor Car Co., 139 App. Div. 205, 123 N. 
 Y. Suppl. 621. 
 
 "Kendall v. Rossi, 35 R. 1- 4Si; 87 Atl. 186; 45 L- R- A. N. S. 985- (note.) 
 
 eVan Zile on Bailments, etc., 2d ed., sec. 135. 
 
 '2 Beven on Negligence, 805, 808. 
 
 sp. H. Gill Forge & Machine Works v. Detroit-Cadillac Motor Car Co., I39 
 App. Div. 205, 123 N. Y. Supp. 621. 
 
 8 See § 576. 
 
 loThomas v. Hackney, Ala., 68 So. 296. 
 
 iiPandle v. Barden, Tex. Civ. App. 164 S. W. 1063. 
 
 408 
 
REPAIR OF VEHICLES § 572 
 
 by a repairman for work on a machine a set-off may be allowed for 
 damages for the plaintiff's unreasonable delay in doing the work." 
 
 § 572. Delegation of duty.— The duty imposed upon the garage- 
 keeper concerning the making of repairs or the performance of serv- 
 ice, cannot be delegated by him to another so as to escape liability for 
 any negligent act or omission, for then the duty would become that of 
 the servant and not that of the master.^^ 
 
 Mr. Justice Allen, in the case cited, considers whether a "positive 
 duty resting upon the master, for the non-performance of which he 
 will be liable * * * can be delegated to a proper substitute and he" 
 (the master) "be thereby relieved from responsibility." And con- 
 cludes "that the duty resting upon the master * * * jg jjq^- jjg. 
 charged by delegating the performance of it to a third person."^* 
 
 § 573- Duty of the repairer. — "It is incumbent upon the work- 
 man to do the work in accordance with the contract by which it is 
 undertaken. If the contract is not written, there are certain implied 
 obUgations that apply to every undertaking, and so it may be said that 
 in every case the workman is bound to do the work reasonably well, 
 that is, in a workman-like manner, using such skill and judgment as 
 the undertaking requires, and such as the workman claims to possess ; 
 producing the result of the undertaking within the time stipulated 
 without waste or damage to the employer; using the material fur- 
 nished in a proper manner, and withal exercising good faith in the per- 
 formance of the work. If, therefore, the work has not been so per- 
 formed, if the contract has not been kept, but by reason of the per- 
 formance thereof on the part of the bailee a defense is afforded to the 
 employer against a demand for the payment of the price, that the work 
 was defectively or improperly done, that same defense will be equally 
 available to the employer after the loss. Judge Story says, 'this seems 
 to be the doctrine of the Roman law,' and it is also the doctrine of the 
 common law."^' 
 
 § 574. Skilled labor, — ^The rule applicable to all skilled laborers is 
 that "a person holding himself out to do a certain work, impliedly war- 
 
 i^Bertschy Motor Co. v. Brady, (Iowa), 149 N. W. 42. 
 isvvheeler v. Wason Mfg. Co., 135 Mass. 294, 297. 
 i*See 2 Thomas, Negligence, etc., p. 1488. 
 "Van Zile on Bailments, etc., 2d ed., sec. 143. 
 
 409 
 
§ 575 GARAGES AND GARAGE KEEPERS 
 
 rants his possession of skill reasonably competent for its performance. 
 If he have not that skill he is liable as for negligence."^* 
 The author quoted, on page 1128, says also: 
 
 "And when an injury has been sustained that could not have 
 arisen unless from the absence of reasonable skill or diligence, 
 then there is liability." 
 
 §, 575. Extraordinary skill. — ^The ordinary standard of attainment 
 is that which is usually required in the ordinary run of instances 
 wherein such services are employed, but there are cases of a "skilled 
 performer" being employed on the ground of his possession of unusual 
 and special skill in works of difficulty and delicacy. An extraordinary 
 compensation is generally given for a special degree of skill and ex- 
 perience. "The recipient thereupon is undoubtedly bound to bring to 
 bear a greater degree of skill than the ordinary expert. He becomes 
 bound to a performance measured by the consummate skill attributed 
 to him which secures the unusual fee."^^ 
 
 § 576. Burden of proof, etc. — "The plaintiff here, as always, must 
 prove his case and show not mere lack of judgment on the part of the 
 defendant, but ignorance of that common knowledge of his profession 
 "in kind and degree,'' that all practitioners of his class are assumed to 
 have, or that carelessness or recklessness which is incompatible with 
 the common standard of practice" in such class. "The determination 
 of whether the conduct impugned reaches this is for the jury, on the 
 direction of the judge that the circumstances admit of the probability 
 that it has not been attained."" 
 
 Where the evidence is conflicting the questions involved are for the 
 
 jury." 
 
 V. lylENS FOR StorAOB AND REPAIRS 
 
 577. Common law right to lien. 
 
 578. Lien by agreement. 
 
 579. Circumstances under which a lien will attach. 
 
 580. Liveryman has no lien at common law. 
 
 182 Beven on Negligence, p. 1127. 
 
 "2 Bevan on Negligence, p. 1130; Wharton on Negligence, 2d ed., sec. Si- 
 "2 Bevan on Negligence, p. 1 128; P. H. Gill Sons Forge & Machine Works v. 
 Detroit-Cadillac Motor Car Co., 123 N. Y. Supp. 621, 139 App. Div. 205, 1910. 
 i»Bush v. Fourcher, 3 Ga. App. 43, 59 S. E. 459. 
 
 410 
 
WENS FOR STORAGE AND REPAIRS § 577 
 
 S8i. No lien where owner uses car at will. 
 
 582. Lien by statute. 
 
 583. Consent to repairs or storage as element of lien. 
 
 584. Loss of lien by delivery of car. 
 
 585. Retaking by force after loss of lien. 
 
 586. Priorities as against mortgages. 
 
 587. Garage keepers as warehousemen. 
 
 588. Warehouseman's lien for storage charges. 
 
 589. Interpleader to determine title. 
 
 § 577- Common law right to lien. — ^^The subject of lien presents 
 itself in the case of garage-keepers in more than one aspect. A lien is 
 defined in Anderson's Dictionary of Law, as "a hold or claim which 
 one person has upon the property of another, as a security for some 
 debt or charge; a right to possess and retain property, until some 
 charge attached to it is paid or discharged."^" 
 
 § 578. Lien by agreement. — Of course a lien may arise by an ex- 
 press agreement between the parties irrespective of the common law 
 or of any statute.^^ 
 
 § 579- Circumstances under which a lien will attach. — At com- 
 mon law the bailee has a specific lien which attaches to the particular 
 piece of "property upon which, in carrying out the bailment contract, 
 the bailee has performed services which have bettered the property. 
 This lien attaches to specific articles in the possession of the bailee."^^ 
 
 The case which perhaps is most frequently cited on this subject, is 
 that of Gregory v. Stryker,^' the opinion in which was written by Mr. 
 Justice Beardsley. The whole opinion is valuable to the investigator. 
 The following points are taken from the syllabus for the sake of 
 brevity : 
 
 ( 1 ) "Where a manufacturer or mechanic agrees to construct 
 a particular article out of his own materials, the property in 
 the article until its completion and delivery, is in the maker, 
 and not in him for whom it is made." 
 
 (2) "The law is the same where the principal part of the ma- 
 terials are furnished by the manufacturer or mechanic. But if 
 the employer furnish the whole or the principal part of the ma- 
 
 ^oSee Kent's Comm., 14th ed., sec. 634. 
 "Smith V. O'Brien, 46 Misc. 325, 94 N. Y. Supp. 673. 
 ""Van Zile on Bailments, etc., 2d ed., sees. 66, 67. 
 232 Denio, N. Y. 628. 
 
 411 
 
§ S8o GARAGES AND GARAGE KEEPERS 
 
 terials, he retains the property in them during the progress of the 
 work." 
 
 (3) "Where a damaged or worn out article is delivered to 
 another to be repaired and renewed by the labor and materials 
 of the latter, the property in the article together with the ac- 
 cessorial additions remains in the former owner during the per- 
 formance of the work, and it is his when completed. And the 
 rule of law is the same although the labor and materials used 
 in the repairs greatly exceed the value of the article when left 
 to be repaired." 
 
 (4) "The mechanic, however, has a lien for his labor and 
 materials, and may retain possession until he is paid." 
 
 § 580. Liveryman has no lien at common law. — Smith v. 
 O'Brien''* was a motor vehicle case wherein the plaintiffs, who were 
 garage-keepers, claimed a lien under the New York lien law, on the 
 defendant's automobile for labor, materials and repairs furnished 
 therefor. Mr. Justice Clarke, after declaring that "the garage is a 
 modern substitute of the ancient livery stable," and saying that "a 
 garage-keeper is like unto a livery stable keeper" holds that : 
 
 "It was always the common law that the livery stable keeper 
 had no lien, because the owner had and exercised the right of 
 use of the horse kept, and so the continuous possession was de- 
 stroyed. * * * As the livery stable keeper did not come 
 within the common law, neither does the garage keeper, and he 
 is not to be put under a statute providing for the keep of ani- 
 mals, but must have a statute of his own if he is to have a lien."^^ 
 
 The following cases are cited and the decisions therein quoted, in 
 Smith V. Oi'Brien, supra : 
 
 In Bevan v. Waters, 3 Car. & P. 520, Chief Justice Best says : 
 
 "There is no lien, because the horse is subject to the control 
 of his owner, and may be taken out by him ; and the first time 
 it goes away there is an end to the lien." 
 
 In Grinnell v. Cook, 3 Hill, 491, 38 Am. Dec. 663, the court say : 
 
 "If the owner gets the property into his hands without fraud, 
 the lien is at an end, and it will not be revived by the return of 
 the goods." 
 
 2*94 N. Y. Supp. 672. 
 
 25See Gage v. Callanan, 113 N. Y. Supp. 227, 57 Misc. 479, 1908. 
 
 412 
 
LIENS FOR STORAGi; AND REPAIRS § S^I 
 
 In McFarland v. Wheeler, 26 Wend. 474, it was held : 
 
 "The right and exercises of occasional control and possession 
 by the owner must terminate any lien." 
 
 § 581. No Lien where Owner uses Car at Will. — Whenever a 
 garage-keeper deals with his customer as a livery stable keeper deals 
 with a patron who boards his horse in such livery stable, the latter 
 using the animal at will, no lien, at common law, will attach, and this 
 upon the principle that there is no continuity of possession in the stable 
 keeper, thus indicating that the credit was in fact extended as a per- 
 sonal credit and not by looking to the property itself for the purpose 
 of securing payment.^' 
 
 § 582. Lien by statute. — In most of the states liens are by statute 
 given to the liveryman for the care and keep of animals intrusted to 
 him." But as stated by Mr. Justice Clarke, in Smith v. O'Brien,^^ ^^g 
 statute in favor of liverymen will not be extended to a garage-keeper. 
 He "must have a statute of his own if he is to have a lien." Garage- 
 keepers are now commonly given a lien by statute.^' 
 
 A garage keeper is entitled to a lien as a "wheelwright" under a 
 statute giving such a lien to wheelwrights. A wheelwright is a man 
 who makes and repairs wheels and wheeled vehicles.^" 
 
 The question whether the garage lien covers back charges against the 
 former owner arose but was not decided directly in a recent case in 
 Massachusetts, but the lien for storage was sustained under Mass. St. 
 191 3, c. 300.'°* 
 
 § 583. Consent to Repairs or Storage as Element of Lien — 
 Chauffeur's Authority. — Consent by the owner to the making of the 
 repairs is a necessary element to a claim for a lien, and the fact that 
 
 2'Van Zile on Bailments, etc., 2d ed., sec. 161. Smith v. O'Brien, 92 N. Y. 
 Suppl. 1 146, 103 N. Y. App. Div. 596. 
 
 2'Van Zile on Bailments, 2d ed., sec. 162. 
 
 2846 Misc. 32s, 94 N. Y. Suppl. 673. 
 
 29See for example, Mass. St. 1913. c. 300. See Cuneo v. Freeman, 137 N. Y. 
 S. 88s (N. Y. Sup.), App. Term. 
 
 ^oShelton v. Little Rock Auto Co., 103 Ark. 142, 146 S. W. 129. 
 
 3»aDoody V. Collins, (Mass. 1916), iii N. E. 897. 
 
 413 
 
§ 5^4 GARAGSS AND GARAGE KEEPERS 
 
 the owner's employee saw the work being done is not enough to show 
 consent.^^ 
 
 A chauffeur has implied authority to place his employer's car in 
 storage temporarily for safe keeping if it breaks down upon the road, 
 whereby he is unable to proceed with his journey. But this impli- 
 cation of authority does not extend to storage of a more or less per- 
 manent character. A garage-keeper in order to protect himself, should 
 give prompt notice to the owner of the presence of the car in the 
 garage.'^ 
 
 The garage owner has a lien for the repairs under statute although 
 when the owner's agent took the car to be repaired he supposed that 
 another man and not the defendant would make the repairs, an implied 
 promise to pay being sufficient.^* 
 
 § 584. Loss of lien by delivery of car. — At common law the test 
 whether or not the security for a debt was the property itself or rested 
 in the personal responsibility of the owner, depended upon the continu- 
 ance in possession by the creditor of the property of the debtor until 
 the debt was paid. If such was the case in fact or in the contemplation 
 of law, a lien would attach, otherwise there could be no lien. 
 
 In Perkins v. Boardman,'* the court, by Mr. Justice Merrick, say : 
 
 "To complete the right of lien, it is essential that the posses- 
 sion and right of possession of the goods pledged should be con- 
 tinued and uninterrupted. A relinquishment of the possession 
 of property, by the party in whose favor a Hen or pledge exists 
 to the general owner is an abandonment, and operates as an im- 
 mediate release of it. * * * A lien may perhaps be renewed 
 by the return and restitution of the property ; but in such case 
 it will be subordinate to any intervening incumbrance to which 
 the property in the meantime has become subject." 
 
 A statutory lien for repairs of an automobile will be lost where the 
 repair man delivers the car to the owner,*' and if the owner subsequent- 
 ly brings in the car for more repairs the lien does not revive." 
 
 "Lloyd V. Kilpatrick, 71 Misc. 19, 127 N. Y. S. 1096. 
 
 82Gage V. Callanan, 128 App. Div. 752, 109 N. Y. Supp. 844. See ante, § 262. 
 
 S3 Westminster Inv. Co. v. McCurtain, 39 Utah 544, 118 Pac. 564- 
 
 8*80 Mass. 481, 483. 
 
 seGage v. Callanan, 57 Misc. 479, "3 N. Y. Suppl. 227; Greene v. Fankhauser, 
 137 App. Div. 124 121 N. Y. Supp. 1004; Thourot v. Delahaye Import Co., 69 
 Misc. 351, I2S N. Y. S. 827 (Sup.). 
 
 sopord Motor Co. v. Freeman, Tex. Civ. App., 168 S. W. 80. 
 
 414 
 
MENS SOE STORAGE AND REPAIRS § 585 
 
 § 585- Retaking by force after loss of lien. — If the garage-keeper 
 has a lien, acquired either by statute provision or by agreement, and 
 the lien is broken by the surrender of possession, he cannot repossess 
 himself of the property by force or otherwise. If he does in fact so 
 repossess the property, he may render himself guilty of larceny.*' 
 
 § 586. Priorities as against Mortgages. — A garage keeper has a 
 lien for repairs of an automobile superior to that of a prior mortgagee 
 where the repairs are necessary for the proper running of the automo- 
 bile and the machine is being used by the mortgagor with the knowl- 
 edge and consent of the mortgagee.** 
 
 This is the general American rule*^ but there is much conflict in the 
 decisions and it has been held recently that a seller of an automobile 
 who has received part payment does not by paying a garage bill 
 against the machine become entitled to it as against one who had a 
 mortgage from the buyer. The garage keeper's lien is inferior to a 
 prior mortgage.*" 
 
 § 587. Garage-keepers as warehousemen. — Where garage-keep- 
 ers take a motor vehicle exclusively in storage they present some of the 
 aspects of a warehouseman. The duties and obligation of warehouse- 
 men, are described as follows, in Aldrich v. Boston & W. R.,*^ by Mr. 
 Justice Hoar : 
 
 "The legal obligation of the defendants as warehousemen is 
 well settled by the authorities, and there is no substantial dif- 
 ference between the parties respecting its nature and extent. 
 They are responsible for due care in storing the goods in a 
 place of reasonable safety, and are to be charged only upon 
 proof of their own negligence, or that of their servants in the 
 course of their employment. They are not insurers against loss 
 by an accidental fire. 
 
 "As the defendants furnished a suitable warehouse, properly 
 secured, in which the goods were reposited, they had done their 
 whole duty, until the time came when, upon reasonable notice 
 of danger, an obligation should arise to remove them. Tobin 
 V. Murison, 5 Moore, P. C. no. They were not chargeable with 
 
 a'Greene v. Fankhauser, 137 App. Div. 124, 121 N. Y. Supp. 1004. 
 ssBroom & Sons Co. v. Dale & Sons (Miss.), 67 So. 659. 
 *»See Ruling Case Law, Chattel Mortgages. 
 «Adler v. Godfrey, 153 Wis. 186, 140 N. W. 1115. 
 *iioo Mass. 31, 32. 
 
 415 
 
§ 588 GARAGliS AND GARAGE KEEPERS 
 
 the negligence of one of their servants, unless it was negligence 
 within the scope of the servant's employment. And a true test 
 of this liability may be found in the question, whether any one 
 of the defendants' servants, who were present at the fire would 
 be answerable to his employers for a neglect of his duty." 
 
 § 588. Warehouseman's lien for storage charges. — The subject 
 of the right of warehousemen to a lien upon the property stored to 
 cover charges for storage, is governed by the same principles as those 
 which control in the case of a liveryman. 
 
 In Smith v. O'Brien,** plaintififs, in addition to claiming a liveryman's 
 lien as garage-keepers, claimed also that they had "a lien for storage as 
 warehousemen." Mr. Justice Clarke, after holding that a garage- 
 keeper had no lien as a liveryman, for the reason above set forth, con- 
 tinues : 
 
 "But again the same course of reasoning prevents, because 
 while they may have kept a storage place, this automobile was 
 not stored within the meaning of the lien law, being continu- 
 ously or occasionally upon the road at the owner's pleasure; 
 and the right so to use it destroyed the possession, and dem- 
 onstrated that the credit was given to the owner and not to the 
 goods." 
 
 § 589. Interpleader to determine title. — A bill of interpleader will 
 not lie where the plaintififs have no fund or property in possession, 
 the subject-matter of the suit and where the plaintiffs have an adequate 
 remedy at law by defending a replevin suit. In this case the plaintiff 
 claimed a lien and the automobile was taken from it in replevin when 
 a third party sued the present plaintifif claiming ownership of the 
 
 590. 
 591 
 S92 
 S93 
 594 
 
 VI. Garages as Nuisances.** 
 
 Livery stables as nuisances. 
 
 Garages as nuisances. 
 
 Police power over. 
 
 Proceedings to restrain a nuisance. 
 
 Restrictions on use of land as affecting garages. 
 
 *=46 Misc. 32s, 94 N. Y. Supp. 673, 
 *3Grant Bros. Auto. Co. v. Cotter, Mich. 126 N. W. 839. 
 **As to storage and handling of gasoline the reader's attention is drawn to 
 chapter XVII on "Gasoline." 
 
 416 
 
AS NUiSANCUS § 590 
 
 § 590. Livery stables as nuisances. — Mr. Justice Dillon, in Flint 
 V. Russell,*' says that to be a "nuisance" in the legal sense of that word, 
 the livery stable 
 
 "Must be something which unreasonably and sensibly inter- 
 feres with the comfort and enjoyment of life or property — 
 which may be by noises, noxious and offensive smells, injurious 
 gases, the collection of flies and insects, and the like." 
 
 The general features of this topic are discussed by Mr. Justice Dean, 
 in Gavigan v. Refining Co.,*' and in the cases there cited. 
 
 "Though a livery stable is not a nuisance per se, it may become one 
 by reason of the manner in which it is constructed or conducted. And 
 one using property for such a purpose must exercise care to prevent 
 it from becoming a nuisance. So where the odors and noises from a 
 livery stable occasion substantial annoyance or discomfort to the oc- 
 cupants of adjoining premises or impair their value for their reasonable 
 and natural use, an actionable nuisance is created. It is not necessary 
 to enable one to maintain an action for such a nuisance that his dwelUng 
 house should be rendered useless thereby, it being sufficient if the injury 
 is such as to render the enjoyment of life uncomfortable."*' 
 
 Under some circumstances, however, a livery stable may be a nui- 
 sance, even though properly built, properly kept and in a convenient 
 locality. In Aldrich v. Howard,*' the court say : 
 
 "It has been held in other cases, that a stable in a town is not 
 necessarily and per se a nuisance; yet, if it is so built or so 
 used as that it destroys the comfort of persons owning and oc- 
 cupying adjoining premises, creating such an annoyance as to 
 render life uncomfortable, then it is none the less a nuisance 
 that it is well kept, carefully built, and as favorably located as 
 the town will admit." 
 
 "s Dill. (U. S.), 151 Fed. Cas. No. 4876. 
 *'i86 Pa. St. 604, 40 Atl. Repr. 834. 
 *8joyce Law of Nuisances, sec. 201. 
 *98 R. I. 246. 
 
 417 
 27 
 
§ 591 GARAGES AND GARAGE KEEPERS 
 
 In Joyce on the Law of Nuisances,"" it is said : 
 
 "The fact that a livery stable is properly built or is carefully 
 conducted and maintained is no defense where a nuisance actual- 
 ly exists. * * * So where the odors from a livery stable 
 cause substantial inconvenience and annoyance to residents in 
 the neighborhood, it is no defense of an action therefor that in 
 the construction of the stable it was equipped with all modern 
 improvements for drainage and ventilation.""^ 
 
 § 591. Garages as Nuisances. — The law of nuisance as applied to 
 garages, has been the subject of some interesting discussion in the 
 courts. In general the principles controlling as to livery stables have 
 been applied. "A private stable or barn, like a livery stable, is not a 
 nuisance per se, but may become one from the manner in which it is 
 built or kept."«2 
 
 A garage is not a nuisance per se in a proper place,"' even in a 
 residential district,"* but may be one in a frame building in a thickly- 
 built up district,"" or when improperly conducted,"" as where lighting 
 matches and smoking are perrnitted and gas lighting is used."' 
 
 § 592. Police power over. — Regulation of the location of garages 
 is a proper exercise of the police power if reasonable and such regu- 
 lation is reasonable prohibiting their use in a block where two-thirds of 
 the buildings are residences or within two hundred feet of a church, 
 hospital or public or parochial schools."' 
 
 It is also a valid exercise of the police power to prohibit a public 
 garage within fifty feet of a school house,"' or in a residence district,'" 
 
 ""Sec. 202. 
 
 "See also Flint v. Russell (U. S.), 151 Fed. Cas. No. 4876; St. James Church 
 V. Arrington, 36 Ala. 546; Stilwell v. Buflfalo Riding Academy, 4 N. Y. Supp. 
 414, Sup. A.-S. 7- 
 
 ^^Joyce Law of Nuisances, sec. 204. 
 
 s^Stein V. Lyon, 91 N. Y. App. Div. S93, 87 N. Y. S. 123. Diocese of Trenton 
 v. Toman, 74 N. J. Eq. 702, 70 Atl. 606. 
 
 5*Sherman v. Livingston, 128 N. Y. Suppl. 581, Sup. Ct. S. T. 
 
 BSQ'Hara v. Nelson, 71. N. J. Eq. 161, 629, 63 Atl. 842. Quoted in full § 327. 
 
 5»Trenton v. Toman, 74 N. J. Eq. 702, N. J. 70 Atl. 606. 
 
 BTQ'Hara v. Nelson, 71 N. J. Eq. 161, 629, 63 Atl. 842. Quoted in full § 327- 
 
 "'People V. Ericsson, 263 111. 368 ; 105 N. E. 315 ; 191S C. 183. 
 
 5»McIntosh V. Johnston, 14s N. Y. S. 763, 160 App. Div. 563. (N. Y. Sup.). 
 
 ooPeople ex rel., Corn Hill Realty Co. v. Stroebel, 156 App. Div. 457, 141 N. Y. 
 S. 1014. (N. Y. Sup.) 
 
 418 
 
AS NUISANCES § 593 
 
 and such a prohibition may apply although the entrance is on an 
 alley and not on the street."^ 
 
 A statute empowering a city to direct the location and regulate the 
 use of garages does not confer power to prohibit the location of a 
 garage at any place in the city limits, but does give it the right to pro- 
 hibit its location in a strictly residential district and permitting its 
 location in a residential district only on consent of the majority of the 
 property owners within a radius of 500 feet is not unreasonable on 
 account of the area in which the property owner's" consent must be 
 obtained."^ 
 
 A city ordinance as to garages is not void on the ground that it dis- 
 criminates in favor of those engaged in the garage business at the time 
 it became effective where the ordinance clearly states it shall apply to 
 all persons who shall "locate, build, construct or maintain" as this 
 makes it apply to those then in operation. Any failure of the local 
 authorities to enforce it against garages then in operation does not 
 make it discriminatory." 
 
 § 593. Proceedings to restrain a nuisance. — "The use of a build- 
 ing for the purpose of a livery stable not being in itself a nuisance, a 
 court will not restrain the proposed use of a building for such a pur- 
 pose in the absence of evidence showing that such use will actually re- 
 sult in a nuisance."'* 
 
 The court will not enjoin the construction of a building to be used 
 as a livery stable on the ground that it will be a nuisance, because such 
 a building is not necessarily a nuisance, and a court of equity will not 
 ordinarily intervene unless the matter has been tried generally by an 
 action at law. 
 
 Mr. Justice Dillon says, in Flint v. Russell,'" 
 
 "The books abound in cases where nuisances of this kind are 
 held actionable at law, and where, when the fact is ascertained, 
 either by a verdict or by admission in the pleadings, or from 
 the essential and unavoidable character of the trade or occu- 
 
 «iWeeks v. Henrich, 40 D. C. App. 46; Ann. Cas. 1914. A. 972. 
 e^People v. Oak Park, 266 111. 365 ; 107 N. E. 636. 
 eaPeople v. Oak Park, 266 111. 36s, 107 N. E. 636. 
 '*Joyce Law of Nuisances, sec. 206. 
 »'S Dill. (U. S.) isi, Fed. Cas. No. 4876. 
 
 419 
 
§ 594 GARAGES AND GARAGlS KlJEPBRS 
 
 pation, that the thing or matter complained of is a nuisance, 
 courts of equity have interfered by injunction." 
 
 Where injury is problematical the erection of a garage will not be 
 restrained.*" An application for an injunction against the building of a 
 garage is premature when made before it is actually operated as a 
 garage and is not a nuisance per se. A garage may be so conducted that 
 its objectionable features may be eliminated.*' 
 
 The lessor of premises in possession of the lessee cannot restrain the 
 building of a garage in the neighborhood where the only injury com- 
 plained of is of a temporary nature like noise and odor and there is no 
 damage to the reversion."' 
 
 Where business is pushing into a residential community the court 
 will not enjoin the erection of a garage."^ 
 
 § 594. Restrictions on use of land as affecting garages. — ^While 
 garages as such have been successful in avoiding adverse decisions 
 under the common law of nuisance, they have been held to fall within 
 the bounds of restrictions on real estate, against business enterprises 
 which would be "offensive to the neighborhood for dwelling houses." 
 
 In Evans v. Foss," the plaintiff sought by a bill in equity to obtain 
 an injunction to prevent the erection of a garage by the defendant in a 
 residence street in the City of Boston. It appeared that a restriction 
 was contained in the deeds of the respective parties under which they 
 held title, providing that no building erected on said premises "shall 
 be used for, or occupied for a stable either livery, or public or private, 
 for carpenter shops, white or blacksmith shops, or for any foundry, 
 mechanical or manufacturing purposes, or for any other business that 
 shall be offensive to the neighborhood for dwelling houses." Defend- 
 ant's garage was designed to accommodate about one hundred and 
 
 oflSherman v. Livingston, 128 N. Y. S. 581, Sup. Ct. S. T. 
 
 s'Sherman v. Livingston, 128 N. Y. S. 581, Sup. Ct. S. T. 
 
 ssSherman v Livingston, 128 N. Y. S. s8i, Sup. Ct. S. T. 
 
 "'Sherman v. Livingston, 128 N. Y. S. 581, Sup. Ct. S. T. The court remarks 
 that with the vast increase in the use of motor cars public garages have become 
 a necessity. 
 
 T'ti94 Mass. 513, 80 N. E. 587. 
 
 The case of Stein v. Lyon, 91 N. Y. App. Div. 593, 87 N. Y. S. 125, was an 
 action to restrain defendant from violating certain building restrictions. It is of 
 no value in this connection, because the garage in question was adjudged not 
 located upon the restricted land. 
 
 420 
 
AS NUISANCES § 594 
 
 twenty-five automobiles, to contain a large gasoline tank, the second 
 floor to be used partly for the storage of automobiles, and part of the 
 third floor to be used as a repair shop, containing a portable forge. 
 The building was also designed to be used as a salesroom and reposi- 
 tory for automobiles with demonstration cars, and cars belonging to 
 customers, which would pass in and out at will. The court, by Chief 
 Justice Knowlton, held that: 
 
 'There was much evidence tending to show that the business 
 proposed to be carried on at the building would be 'offensive to 
 the neighborhood for dwelling houses.' " 
 
 But a private garage may not violate a restriction against use other 
 than for residence purposes.'^ 
 
 The court uses the following language : "We think that this 
 structure is incidental to the reasonable use of property for 
 residential purposes. If one having a fondness for flowers 
 should attach to his residence a small extension for the purpose 
 of a conservatory or greenhouse, 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 construct 
 a building to be used as an art gallery, we think it could hardly 
 be claimed that this was a violation of the covenant. * * * 
 If one has a fondness for automobiles, and desires to build an 
 addition to his dwelling house for the storing of his own auto- 
 mobiles, it can hardly be claimed that he is destroying the char- 
 acter of the property as residential property, or devoting any 
 portion of it to a use which is not fairly incidental thereto" ; 
 
 Also held— That "if after its erection an attempt should be 
 made to * * * carry on the business of storing automobiles 
 for hire, a different question would be presented." 
 
 . But where a restriction is imposed on property in 1899 that no build- 
 ings other than dwelling houses "with the usual outbuildings appurte- 
 nant thereto" shall be built, this forbids a private garage as this was not 
 such an outbuilding as was usually appurtenant in 1899. Riverbank 
 Impr. Co. V. Bancroft, 209 Mass. 217, 95 N. E. 216, 34 L. R. A. N. S. 
 730. 
 
 ''J-Beckwith v. Pirung, 134 N. Y. App. Div. 608, 119 N. Y. S. 444. 
 
 421 
 
CHAPTER XXVI. 
 
 MANUFACTURERS. 
 
 § 595- Scope of Chapter. 
 
 596. Duty of the manufacturer. 
 
 597. Dangerous agencies. 
 
 598. Duty to exercise resonable care. 
 
 599. Responsibility on the part of purchasers to the public. 
 
 600. Customer's implied engagement with the public. 
 
 601. The relation between manufacturer and customer. 
 
 602. Remedies of the customer. 
 
 603. Remedies of the Manufacturer. 
 
 604. No privity between manufacturer and third parties. 
 
 605. Rule when defect is obvious or disclosed. 
 
 606. Liability of Manufacturer to Third Parties for Selling Defective 
 Appliance. 
 
 607. Liability to Passengers. 
 
 608. Assembled Car with Defective Parts. 
 
 609. Criminal Liability. 
 
 610. Statutes. 
 
 § 595- Scope of chapter. — The effort of this chapter is to give 
 prominence to those features of the law which apply particularly to 
 manufacturers of motor vehicles and the appliances thereof, as dis- 
 tinguished from the principles applying to the middleman and his 
 market. The law as it relates to the latter class is considered in the suc- 
 ceeding chapter on "Sales." In respect of warranties, representations 
 and conditions, this chapter should be read in connection with that, and 
 also in respect of the remedies between the parties. 
 
 When it is considered how rapid has been the increase in number of 
 motor vehicles in the last decade, it speaks much for the credit of the 
 manufacturer that there should appear in tlie law books so few re- 
 ported cases in which he has been involved. It is no reflection upon 
 the genius and attainment of the engineer and designer, to say that at 
 the last analysis, it is the manufacturer to whom the wonderful 
 progress of motoring has been due and upon whom its future depends. 
 As the manufacturer has progressed in constructing a reliable vehicle, 
 capable of easy control, of bearing heavy burdens, of withstanding 
 
 422 
 
MANUFACTURERS § $96 
 
 varying strains, and able to make satisfactory speed without discom- 
 fort or danger to occupants and to the public, so he has created the de- 
 mand which has resulted in the myriads of machines which travel the 
 roads to-day. The facts justify the assertion that the manufacturer 
 has been progressive and farseeing, and his freedom from litigation 
 demonstrates that he has been actuated by a wholesome purpose and 
 motive to achieve safety, not only for the user of the vehicle but also 
 security for the public. Of course it is his first interest in the long 
 run, to construct a strong, reliable and satisfactory product, to mingle 
 a wise conservatism with progressiveness, and so command the confi- 
 dence as well as the partonage of the community. 
 
 It goes almost without remark, that what has been said applies 
 equally to the manufacturer of appliances, indeed it is difficult to draw 
 a line between the one and the other. Especially does it concern those 
 who construct such appliances as brakes, steering apparatus, road 
 wheels, etc., for upon such parts of the machine in a peculiar degree, 
 depends the security of everyone, whether it be the person within the 
 vehicle, or the public outside it on the highway. 
 
 § 596. Duty of the manufacturer. — Generally in manufacturing an 
 article, it is the duty of the manufacturer to use the kind of materials 
 suitable for the purposes for which the article is being constructed, 
 and to do the work in a workmanlike manner. By "suitable materials" 
 is meant such materials as are reasonobly fit and proper, containing 
 "no defects, which could be discovered by the exercise of reasonable 
 care and skill." To this extent there is an implied manufacturers' war- 
 ranty. But this does not extend to such defects as are hidden "and 
 which cannot be discovered by the exercise of skill and care."^ 
 
 § 597. Dangerous agencies. — On several occasions in connection 
 with other subjects there has been considered the law as it applies to 
 dangerous agencies and instrumentalities f and it has been seen that the 
 automobile per se is not a dangerous instrumentahty in the class with 
 dynamite, a loaded gun, a ferocious bull, or poisonous drugs.^ 
 
 But as said by Mr. Justice Powell in Lewis v. Amorous, supra,* "in 
 running, automobiles are dangerous machines." 
 
 iCunninghara v. Hall, 86 Mass. 272; Losee v. Clute, 51 N. Y. 494. 
 2See Chap. XVI. 
 
 sLewis v: Amorous, 3 Ga. App. 50, 59 S. E. 338; Jones v. Hoge, 47 Wash. 
 663, 92 Pac. 433; Cunningham v. Castle, 127, N. Y. App. Div. 580, 1908. 
 *3 Ga. App. 50. 
 
 423 
 
§ 598 MANUIfACTURERS 
 
 Mr. Justice Chase, in Emerson, Etc., Co. v. Pearson,'' remarks con- 
 cerning automobiles, that: 
 
 "They are propelled by great power, developed by steam, 
 electricity, or the explosion of gasoline vapor, and may be driven 
 with great speed." 
 
 Hence there is devolving upon the manufacturer a higher degree of 
 care in the quality and manner of construction than would be cast upon 
 him in the case of a vehicle fraught with fewer possibilities of danger; 
 but it cannot be said that he falls within the strict rule regarding the 
 construction and disposition of dangerous agencies. 
 
 § 598. Duty to exercise reasonable care. — Reasonable care is care 
 commensurate with the possibilities of danger, demanding the exercise 
 of wise foresight and precaution. 
 
 In Cunningham v. Hall,^ Mr. Justice Merrick says : 
 
 "It has been suggested for the plaintiffs that in a matter of so 
 much importance as the building of a ship, the builder is bound 
 to exercise more than reasonable care and skill; that he is re- 
 quired to use the utmost possible skill in detecting and guarding 
 against defects which endanger human life. But in reality there 
 is no difference in the degree of care or skill which would be 
 required of a ship-builder by the use of the one or the other of 
 these expressions. 
 
 "Reasonable care or skill is a relative phrase, and what this 
 requires is always to be determined by consideration of the sub- 
 ject matter to which it is applied. * * * In its application 
 as a rule of measure of duty to which a builder is subject in the 
 building of a ship, and especially where it is constructed in parts 
 of materials known to be subject to defects which may essen- 
 tially impair its strength or endanger its safety it calls for the 
 most vigilant inspection of every article used, and the employ- 
 ment of every known test or means by which they may be de- 
 tected." 
 
 § 599. Responsibility on the part of purchasers to the public. — 
 
 Upon the purchaser as well as upon the seller devolves the duty of ex- 
 ercising care regarding the quality of the machine. Aside from the 
 question of his personal interest in the matter, there is an obligation 
 
 674 N. H. 22, 23, 64 Atl. 582. 
 "86 Mass. 268, 276. 
 
 424 
 
MANUIfACTURERS § 6oO 
 
 resting upon him to others, not to buy blindly or carelessly but to select 
 a machifie adapted to his needs, and suited to the purposes and the en- 
 vironment of its use. 
 
 In Hegeman v. Western R. Corp.,'^ Chief Justice Gardiner, citing 
 Ingalls V. Bills,' says: 
 
 "The foresight and preparation that would suffice to satisfy 
 the rule in one species of navigation or conveyance, would not 
 answer in another ; and the external examination which in con- 
 nection with the reputation of the builder of a stage coach, 
 would and ought to satisfy the scruples of the most cautious 
 person as to the safety and security of a vehicle designed to 
 run from six to eight miles the hour, would not satisfy any rea- 
 sonable man as to the sufficiency of another intended to sustain 
 a far greater weight and to be propelled by steam thirty, forty 
 or fifty miles in the same time." 
 
 § 600. Customer's implied engagement with the public. — There 
 is an implied engagement between the owner of a vehicle and the pub- 
 lic, that the vehicle is safe and so constructed as not to endanger the 
 lives and safety of others. To that extent the proprietor assumes a 
 responsibility to third parties. Ingalls v. Bills," was a case in which the 
 defendants were coach proprietors. One of their coaches broke down 
 in transit, plaintiff being injured. Among other things it was alleged 
 that the proximate cause of the accident was the unsoundness and de- 
 fective construction of the coach. After an extended review of the 
 authorities, Mr. Justice Hubbard, speaking for the court, sums up as 
 follows : 
 
 "Unless, therefore, * * * every workman shall be held 
 as the warrantor in all events, of the strength, sufficiency and 
 adaptation of his own manufactures to the uses designed — 
 which in a community like ours, could not be practically en- 
 forced — the warranty would really rest on the persons purchas- 
 ing the article for use, and not upon the makers." 
 
 Chief Justice Gardiner, in Hegeman v. Western R. Corp.,^" speaking 
 of the sufficiency of the manufactured article as the result of the exer- 
 
 1^13 N. Y. I, 24. 
 'so Mass. I. 
 »S0 Mass. I, 14. 
 1013 N. Y. I, 26. 
 
 425 
 
§ 6oi MANUfACTURfiRS 
 
 cise of "the utmost care and skill in its preparation" says that the cus- 
 tomer engages with the public that the manufacturer has done': 
 
 "All that well directed skill can do * * * for the accom- 
 plishment of this object. A good reputation upon the part of the 
 builder is very well in itself, but ought not to be accepted by 
 the public or the law, as a substitute for a good vehicle. What 
 is demanded, and what is undertaken by the corporation, is not 
 merely that the manufacturer had the requisite capacity, but 
 that it was skillfully exercised in the particular instance. If to 
 this extent they" (the purchasers) "are not reasonable, there is 
 no security for individuals or the public."" 
 
 § 6oi. The relation between manufacturer and customer. — The 
 
 relation between the manufacturer and his patron is one of contract. 
 The "buyer has a right to expect a merchantable article answering the 
 description in the contract." If the manufacturer gives him something 
 different from that which he orders, it is a violation of the contract. 
 A contract being made the court will enforce it. In Morris v. Fisk 
 Rubber Co.,^^ issue was joined on a "promise" to reshoe automobile 
 tires. On the trial a witness was asked whether the tires "needed re- 
 shoeing," The court held that : 
 
 "If there was a contract by the plaintiff with the defendant 
 to reshoe the tires, and a breach of this contract, it is wholly 
 immaterial whether the tires needed reshoeing or not." 
 
 In Barry v. Am. Locomotive Auto Co.,^^ the contract existed be- 
 tween a manufacturer and his customer to the effect that during a time 
 limited, the manufacturer would repair or replace such parts of the car 
 as might break in normal service. Independent of this contract there 
 was a second agreement that the manufacturer would overhaul the 
 car if the same was sent to his factory. Plaintiff sought to have the 
 car overhauled under the terms of the limited contract after the time 
 had expired. The court held that there was no liability on the defend- 
 ant to furnish new parts after the expiration of the time, and that to 
 avail himself of the second agreement, the plaintiff must make a proper 
 tender of the car. 
 
 "See also Mayor of Albany v. Cunliff, 2 N. Y. 165 ; Losee v. Clute, Si N. Y. 
 
 494. 
 12150 Ala. ISO, 43 So. 483. 
 i«ii3 N. Y. Supp. 826. 
 
 426 
 
MANUFACTURERS § 602 
 
 § 602. Remedies of the customer.^* — If the contract is not ful- 
 filled the patron is not bound to accept the goods. He may either re- 
 ject them altogether, rescinding the contract, or he may recoup by way 
 of deduction from the purchase price, or he may maintain an action 
 against the manufacturer.^^ 
 
 § 603. Remedies of the manufacturer." — The remedies of the 
 manufacturer for breach of contract by the buyer, are discussed more 
 fully in the chapter on sales. At this time they may be briefly re- 
 ferred to as follows: (i) Where the contract is executory and the 
 possession has not passed, the manufacturer may maintain an action at 
 law by way of damages, the measure of which, in general, "is the 
 difference between the contract price and the market price of such 
 goods, at the time when the .contract was broken;" (2) He may re- 
 tain the property, or maintain a lien thereon, or he may sell the same 
 for the account of the vendee, recovering any difference in price; (3) 
 After shipment, and before actual delivery by the carrier to the buyer, 
 the manufacturer has the right of stoppage in transitu; (4) Where 
 possession has actually passed to the buyer, the manufacturer's sole 
 remedy is by personal action to recover the purchase price.^^ 
 
 § 604. No privity between manufacturer and third parties. — Be- 
 tween the manufacturer and the public in most cases, stands the per- 
 son in whose possession the manufactured article is when the mischief 
 occurs. The injured party under ordinary circumstances has no cause 
 of action for the negligence of the manufacturer.^' 
 
 Shearman & Redfield on Negligence,^' say, negligence "which con- 
 sists merely in the breach of a contract will not afford ground for an 
 action by anyone, except the party to the contract, or the person for 
 whose benefit the contract was avowedly made." The principle on 
 
 "For a more complete consideration of the subject of Remedies, see § 653 
 et seq. 
 
 I'Wald's Pollock on Contracts, 3d ed., 652; i ■\yharton on Contracts, sec. 
 21?; I Parsons on Contracts, Book III, Chap. 5, 9th ed., 573. 
 
 I'See for further consideration of this subject — Remedies of vendor, § 653 
 et seq. 
 
 i^Benjamin on Sales, 7th ed., sec. 758 et seq.; i Parsons on Contracts, 9th 
 ed., p. 631. 
 
 isLoop v. Litchfield, 42 N. Y. 351; Losee v. Clute, 51 N. Y. 494; Bailey v. 
 Northwestern O. N. G. Co., 4 Ohio Circuit Ct., 471; Barnes v. Deliglise, 78 
 Wis. 628, 47 N. W. 1 129; Winterbottom v. HoUiday, 6 Exch. 761. 
 
 I'Sth ed., sec. 116. 
 
 427 
 
§ 6oS MANUPACTUR^RS 
 
 which this doctrine rests, is that there is no privity between the third 
 party and the manufacturer : ( i ) Because he is a stranger to the con- 
 tract by which the manufacturer sold the machine to the customer, and 
 (2) because there was no duty imposed by law upon the manufacturer 
 to third persons independent of the contract duty between himself and 
 his purchaser. 
 
 In Lewis v. Terry, ^" Mr. Justice Britt, says : 
 
 "If a tradesman sells or furnishes for use an article actually 
 unsound and dangerous, but which he believes to he safe and 
 warrants accordingly, he is not liable for injuries resulting 
 from its defective or unsafe condition, to a person who was 
 neither a party to the contract with him, nor one for whose 
 benefit the contract was made. Coughtry v. Globe Woolen Co., 
 56 N. Y. 127, 15 Am. Rep. 387; Heizer v. Kingsland Mfg. Co., 
 no Mo. 60s, 33 Am. Rep. 482; Winterbottom v. Wright, 10 
 Mees & W. 109, the leading case; Shearman and Redfield on 
 Negligence, sec. 116; i Beven on Negligence, 60 et seq." 
 
 § 605. Rule vi^hen defect is obvious or disclosed. — If the manu- 
 facturer on selling a defective machine, points out the defect to the pur- 
 chaser, or if it is obvious and the purchaser buys the machine with 
 knowledge of the defect, and subsequently, in his turn, sells it to a 
 customer of his own, and the last mentioned person using the machine, 
 suffers injury by reason of the original defect, then the manufacturer 
 is not liable.^^ 
 
 § 606. Liability of manufacturer to third parties for selling de- 
 fective appliance.^^ — There is a class of cases forming an exception 
 to the general rule, namely, where a manufacturer sells an article 
 not usually dangerous in itself, which he knows or ought to know is de- 
 fective and unsound and likely to work harm to the person who 
 actually uses it.^^ 
 
 In this class of cases "the true question is, has the defendant com- 
 mitted a breach of duty apart from the contract? If he has only com- 
 mitted a breach of contract he is liable to those only with whom he has 
 contracted; but if he has committed a breach of duty he is not pro- 
 ton i Cal. 39, 44, 43 Pac. 398, 52 Am. St. R. 146. 
 
 21L00P V. Litchfield, 42 N. Y. 351. 
 
 22See §§ 220-229, Safe vehicle and appliances. 
 
 23Heizer v. Kingsland, no Mo. 605, 19 S. W. 630, 33 Am. St. Rep. 482. 
 
 428 
 
MANUFACTURERS § 6o6 
 
 tected by setting up a contract in respect of the matter with another 
 person."^* 
 
 Lewis V. Terry ,^' was a case in which the defendant was a dealer in 
 folding beds which were represented to customers and to the public to 
 be safe for use. The defendant sold one of the beds to one Apperson, 
 and "expressly represented and warranted to him that such bed was so 
 constructed * * * ^-^at it was perfectly safe." It appeared that 
 the defendant had knowledge of a defect in the construction, and that 
 such defect rendered the bed dangerous, notwithstanding which knowl- 
 edge he sold it to Apperson without warning him of the danger. The 
 plaintiff, a woman, rented a room from Apperson, and was injured in 
 consequence of the defect referred to. The court by Mr. Justice Britt, 
 consider the absence of a privity of contract between the plaintiff and 
 defendant, and say : 
 
 "But when the seller, as in the case made by the complaint 
 before us, represents the article to be safe for the uses it was 
 designed to serve, when he knows it to be dangerous because 
 of concealed defects, he commits a wrong independent of his 
 contract, and brings himself within the operation of the law of 
 torts, 'It is well settled that a man who delivers an article 
 which he knows to be dangerous or noxious, to another person, 
 without notice of its nature and qualities, is liable for any in- 
 jury which may be reasonably contemplated as likely to result, 
 and which does in fact result, therefrom, to that person or any 
 other who is not himself in fault. Wellington v. Dower, Etc., 
 Oil Co., 104 Mass. 64, per Gray, J.; Schubert v. J. R. Clark 
 Co., 49 Minn. 335 ; Elkins v. McKean, 79 Pa. St. 493 ; Shear- 
 man and Redfield on Negligence, Sec. 117; see Civil Code, 
 Sees. 43, 1708. The liability of the wilful wrongdoer in like in- 
 stances is recognized in several cases cited in support of the 
 judgment; Longmeid v. HoUiday, 6 Ex. 765; Heizer v. Kings- 
 land Mfg. Co., no Mo. 605. 
 
 "The fact insisted upon by respondent that a bed is not ordi- 
 narily a dangerous instrumentality is of no moment in this case, 
 if mere nonfeasance or perhaps misfeasance were the extent of 
 the wrong charged against defendants that consideration would 
 be important,^' but the fact that such articles are in general not 
 
 2*Sherman & Redf. on Negligence, Sth ed., sec. 116; Smith on Negligence, 
 Am. ed., 10; Benjamin on Sales, 7th ed., sec. 431. 
 25iii Cal. 39, 44, 43 Pac. 398, S2 Am. St. R. 146. 
 '^Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. 
 
 429 
 
§ 6o6 MANUFACTURERS 
 
 dangerous would seem to enhance the wrong of representing one 
 safe for use when known to be really unsafe, for the danger is 
 thus rendered more insidious." 
 
 In Schubert v. Clark,"^ the defendant was a manufacturer of step- 
 ladders. In this instance the ladder was made of poor lumber. "The 
 defendant knew or ought to have known, that it was not made of good, 
 sound and sufficient lumber, and was not of sufficient strength to sus- 
 tain the plaintiff's weight, and was dangerous to one using it." The 
 ladder was painted and varnished so that a person could not discover 
 the defective material of which it was made. It was sold by the manu- 
 facturer to a retail dealer, who in turn sold it to the plaintiff. The lad- 
 der broke and plaintiff fell, resulting in permanent injuries. Defend- 
 ant contended that there was no privity between himself as manu- 
 facturer, and the plaintiff, and that step-ladders were not dangerous 
 instrumentalities. Mr. Justice Dickinson, speaking for the court, fays : 
 
 "When defendant manufactured and put the dangerously 
 faulty article in its stock for sale, he is to be deemed to have 
 anticipated that, in the ordinary course of events, it would 
 come to the hands of a purchaser, either directly from the de- 
 fendant or from some intermediate dealer, for actual use, and 
 with the consequences which actually were suffered. It must 
 have been deemed probable that any intervening dealer would 
 not discover the defect, and that nothing would be likely to 
 occur to avert the danger to which the person who might use 
 the ladder would be subjected by the defendant's negligence. 
 Hence it would be difficult to distinguish such a case in prin- 
 ciple from one where the transaction is directly between the 
 wrongdoer, then knowing the danger, and the party who is 
 injured. If any distinction is to be made it must rest upon the 
 grounds of expediency, the arbitrary fixing of a limit to the 
 liability of the wrongdoer. But we consider that in principle 
 the defendant should be held to responsibility for an injury 
 resulting proximately, and without any intervening wrongful 
 agency, from its confessedly negligent act, which was such as 
 to expose another to great bodily harm ; and that no reason of 
 policy forbids this. The authorities which have been cited we 
 deem to, be sufficient to justify this conclusion, although it is^to 
 be admitted that there are others tending to an opposite result. ^ 
 
 2^49 Minn. 331, Si N. W. 103. 
 
 z'See also Wellington v. Dower, 104 Mass. 64; Norton v. Sewall, 106 Mass. 
 143; Bishop V. Weber. 139 Mass. 411, 68 N. W. 95- 
 
 430 
 
MANUFACTURERS § 607 
 
 § 607. Liability to passengers. — A passenger in an automobile 
 brought suit against the manufacturer on the ground that the rear seat 
 was defectively fastened and that the owner did not know of this defect. 
 The court holds that there was no privity of contract between the 
 plaintiff and the manufacturer but the manufacturer may be liable in 
 tort, not in contract, if he sells an automobile which he knows to be 
 imminently dangerous and unsafe and conceals from the purchaser 
 defects from which injury might reasonably be expected to happen 
 to those using it. Notice to the maker may be assumed where the de- 
 fect is so potent that no person engaged in its construction could have 
 failed to observe it. Concealment of the defect need not be a physical 
 concealment as by the use of paint or otherwise. Concealment may ap- 
 pear from a representation that it is safe and sound. An automobile 
 is not in itself "imminently dangerous" but on account of its ordinary 
 use if it is defectively constructed there can be no doubt that it is an 
 imminently dangerous thing to life and limb. If the purchaser knew of 
 the defective condition the passenger cannot recover against the manu- 
 facturer as the case against him is based on fraud. The fact that the 
 purchasers might by careful examination have discovered the defect is 
 not conclusive as they had a right to rely on the assurance of the maker 
 that the machine was safe and very slight evidence of care on their 
 part is necessary in view of that assurance.^^ 
 
 §608. Assembled car with defective parts. — ^These questions were 
 bitterly contested in two recent cases where injuries to passengers in an 
 automobile occurred from defective wheels purchased and assembled 
 in the car by the manufacturer, the defendant, with no inspection save 
 a road test. The Federal court adopted in the case decided by it a rule 
 more favorable to the manufacturer than that followed in the state 
 court, at the same time carefully reviewing the authorities on the sub- 
 ject. The court in effect holds that one who manufactures articles 
 dangerous only if defectively made like automobiles is not liable to third 
 parties for injuries caused by them except in case of wilful injury or 
 fraud.'" A statement in a catalogue that the wheels are the best obtain- 
 able is not a representation that it manufactures them and cannot be 
 
 2901ds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. 
 N. S. 560, Ann Cas. 191 3 B. 68g, 3 N. C. C. A. 79. 
 
 soCadillac Motor Car Co. v. Johnson (C. C. A.), 221 Fed. 801, reversing 
 s. c. 197 Fed. 48s, refusing to follow MacPherspn v. Buick Motor Co., 145 N. Y. 
 Supp. 462, 160 App. Div. ss. 
 
 431 
 
§ 6o9 MANUIfACTURERS 
 
 availed of by third parties in no contractual relation with the manufac- 
 turer in the absence of wilful injury or fraud.^^ 
 
 A verdict for the plaintiff cannot be sustained where the accident 
 occurred through defective spokes in the wheel, where the defects could 
 not have been discovered except through the unproved test of scraping 
 the paint from the wheels where the defendant, a manufacturer which 
 bought the wheels for its cars, did not know of the defects. It is not 
 negligent in failing to have a representative present in the factory of the 
 maker of the wheels when they are made.^^ 
 
 Where an automobile manufacturer assembles into a car from differ- 
 ent makes the parts of a car known to be defective or which in the 
 execise of ordinary care ought to be known to be defective it is re- 
 sponsible to the third person who purchases in ignorance from the 
 dealer.^^ 
 
 On the other hand the. state court holds that a manufacturer v/ho 
 purchases wheels from a reputable dealer and puts them on its cars 
 without inspection except a road test may be liable where it was called 
 upon by the known dangers which would result from weak wheels to 
 make some reasonable inspection.'* 
 
 The Court of Appeals in a learned and extended opinion sustains the 
 lower court and holds that an automobile is in the class of things like 
 poisons, explosives, etc., the nature of which gives warning of probable 
 danger if its construction was defective and that the manufacturer was 
 liable to one who bought from the retailer and was injured through a 
 defective wheel. The defendant was not absolved from the duty of in- 
 spection because it bought the wheel from a reputable manuf acturer.'^ 
 
 § 609. Criminal liability.^' — One who by culpably negligent acts 
 and omissions in the selection and use of materials for construction, oc- 
 casions the death of another, is guilty of manslaughter.^' 
 
 siCadillac Motor Car Co. v. Johnson. (C. C. A.), 221 Fed. 801. 
 
 32Johnson v. Cadillac Motor Car Co. (Cir. Ct. N. Y.), 194 Fed. 497. 
 
 ss Johnson v. Cadillac Motor Car Co. (Cir. Ct. N. Y.), 194 Fed. 497. 
 
 3*MacPherson v. Buick Motor Co., 14S N. Y. Supp. 462, 160 N. Y. App. 
 Div. SS, 138 N. Y. Supp. 224. 
 
 sBMac Pherson v. Buick Motor Co., (N. Y. 1916), in N. E. 1050. The court 
 declines to follow Cadillac Co. v. Johnson, 221 Fed. 801, 737 C. C. A. 279, L. 
 R. A. 191S, S. E. 287, but cites with approval Olds Motor Works v. Shaffer, 14S 
 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.), 560. Ann. Cas. ipisB. 689. 
 
 ^^Wharton on Homicide, 3d ed. sec. 463. See also People v. Buddensieck, 
 103 N. Y. 487, 9 N. E. 44, 57 Am. Rep. 766. 
 
 s'A. 1909, c. 534, s. 2. 
 
 432 
 
MANUFACTURERS § 6lO 
 
 § 6io. Statutes. — In a number of states, statutes have been en- 
 acted affecting the manufacturer of motor vehicles or the applianc.js 
 thereof. It would be impracticable to present statutory provisions of 
 all the states on this subject. Attention is therefore called only to 
 those in Massachusetts and New York. In Massachusetts the Highway 
 Commission is required to refuse or revoke registration in the cases ri 
 vehicles which are, in its judgment, "unsafe or improperly equipped 
 or otherwise unfit to be operated."^^ In addition, the commission is 
 given general power (sees. 25, 26) to enforce the requirement with re- 
 gard to sufficient brakes and the other equipment required by law (Ibid, 
 sec. 7) . In New York the act '' applies to "good and efficient brakes." 
 In both states manufacturers who sell their products in the state, are 
 required to register their vehicles with the licensing authority, and to 
 comply with the regulations provided. In respect of appliances and 
 registration, the statutes of the two states are fairly representative of 
 those everywhere. 
 
 s8igo4, c. 534. s. 4. 
 
 433 
 28 
 
CHAPTER XXVII. 
 
 SAI,ES. 
 
 I. In General 
 
 § 6ii. Scope of chapter. 
 
 612. Definition of "sale." 
 
 613. Elements of a sale. 
 
 614. Concurrence of assent. 
 
 615. Executed and executory sales. 
 
 616. Vendor must have title. 
 
 617. Who is the Vendor when sale made through agent. 
 
 618. Effect of partial payment on title. 
 
 619. Title in case of conditional bill of sale. 
 
 620. Illegal use contemplated. 
 
 621. Unfair competition. 
 
 622. Statute of frauds. 
 
 623. "Demonstration" meaning of, and how proved. 
 
 624. Pleading. 
 
 625. Parol evidence in connection with a written contract. 
 
 626. Functions of Jury as to construction and passing of title. 
 
 627. Intervention of equity. 
 
 628. Specific performance. 
 
 629. Readiness to perform — a condition precedent to enforcement. 
 
 630. Consideration. 
 
 631. Failure of consideration. 
 
 632. Failure of consideration resulting from misrepresentation. 
 
 633. Delivery. 
 
 634. Delivery in executory contract of sale of specific chattels. 
 
 635. When article is to be manufactured. 
 
 636. Executory sale of articles to be specified at a future time. 
 
 637. "Sale on trial" or "sale on approval" and "sale or return." 
 
 638. Misuse or injury to property while on trial. 
 
 639. Acceptance. 
 
 640. Right of inspection before acceptance. 
 
 641. Caveat emptor. 
 
 642. Fraud sets aside rule of caveat emptor. 
 
 643. Mistake. 
 
 644. Rescinding contract on the ground of mistake. 
 64s. Fraud and deceit. 
 
 646. Defects, patent or latent. 
 
 647. Fraud not resulting in pecuniary loss. 
 
 434 
 
SALES § 6ll 
 
 648. Falsely pretending to be a prospective customer. 
 
 649. Sale through Middleman. 
 650 Acquiescence in fraud. 
 
 651. Waiver of defects by the buyer. 
 
 652. Knowledge of defects based on failure of other cars. 
 
 § 611. Scope of chapter. — The intention of this chapter is to con- 
 sider the law as it applies particularly to sales, as distinguished form 
 the law presented in the last chapter upon the subject of manufac- 
 turers. So closely are the two topics allied that it is difficult to follow 
 a distinct line of demarcation between the one and the other. Particti- 
 larly is this true in the matter of "warranties," "conditions" and "rep- 
 resentations." It is therefore suggested that as occasion arises, the 
 reader refer to the several sections in the chapter preceding, and that 
 the two chapters be read as a while. 
 
 The law of sales is well settled, and concerning its rules there is no 
 controversy. In presenting it so much in the langiiage of Mr. Ben- 
 jamin and other standard writers, the purpose is to give the reader the 
 best expressions of its principles by its most eminent exponents. 
 
 § 612. Definition of "sale." — A sale of personal property, as de- 
 fined by Blackstone, "is a transmutation of property from one man to 
 another in consideration of some price or recompense in value, for 
 there is no sale without a recompense ; there must be quid pro quo."^ 
 
 The seller is technically called the "vendor" and the purchaser is de- 
 scribed as the "vendee." 
 
 § 613. Elements of a sale. — Mr. Benjamin^ says : 
 
 "By the common law a sale of personal property is usually 
 termed a 'bargain and sale of goods.' It may be defined to be a 
 transfer of the absolute or general property in a thing for a 
 price in money. Hence it follows that to constitute a valid sale, 
 there must be a concurrence of the following elements, viz: 
 (i) Parties competent to contract; (2) Mutual assent; (3) 
 A thing, the absolute or general property in which is transferred 
 from the seller to the buyer; and (4) A price in money paid 
 or promised. That it requires (i) parties competent to con- 
 tract, and (2) mutual assent, in order to affect a sale, is mani- 
 fest from the general principles which govern all contracts. 
 The third essential is that there should be a transfer of the 
 absolute or general property in the thing sold; for in law a 
 
 'I Cooky's Black., 4th ed., Book II, 446; Story on Sales, 4th ed., sec. i. 
 ("On Sales, 7th ed., sec. i.) 
 
 435 
 
§ 6i4 SALES 
 
 thing may in some cases be said to have in a certain sense two 
 owners, one of whom has the general and the other a special 
 property in it, and a transfer of the special property is not a 
 sale of the thing."* 
 
 § 614. Concurrence of assent. — "The assent of the parties to a sale 
 need not be express. It may be implied from their language or from 
 their conduct. It may be signified by a nod or a gesture, or may even 
 be inferred from silence in certain cases. * * * g^ ^he assent 
 must, in order to constitute a valid contract, be muttial, and intended to 
 bind both sides * * * and the acceptance must be unconditional."* 
 
 § 615. Executed and executory sales. — As the definitions of both 
 Blackstone and Benjamin imply, the fundamental idea of a "sale" is 
 that of contract which must be the result of the meeting of minds on 
 the part of the seller and the purchaser, in other words, an agreement 
 concerning the consideration and terms followed by the delivery of the 
 thing itself. There is a distinction between a "contract of sale" and a 
 "contract to sell." The term, a "contract of sale," means that the sale 
 is complete by the transfer or delivery of the goods and is usually 
 spoken of as an "executed" sale, whereas a "contract to sell" means that 
 the delivery is to occur in the future. Such an agreement is termed an 
 "executory" contract of sale." 
 
 § 616. Vendor must have title. — It follows from the foregoing 
 that, "in general, no man can sell goods and convey a valid title to 
 them, unless he be the owner, or lawfully represent the owner. * * * 
 But a man may make a valid agreement to sell a thing not yet his, and 
 even a thing not yet in existence."* 
 
 § 617. Who is the vendor when sale made through agent. — 
 Where the agents of a company have negotiations concerning the pur- 
 chase of an automobile with the plaintiff and he finally buys one the 
 sale is made by the company to him although the notes for the purchase 
 price were made to a third person.'' 
 
 'See I Parsons on Contracts, gth ed., p. 562. 
 
 .^Benjamin on Sales, 7th ed., sec. 38; Story on Sales, 4th ed., sec 125 et seq. 
 139- 
 
 "Benjamin on Sales, 7th ed., sees. 3, 308 ef. seq.; Tiffing on Sales, 2d ed., sec. 
 I ; Story on Sales, 4th ed., sec, 231. 
 
 "Benjamin on Sales, 7th ed., sec. 6; Story on Sales, 4th ed., sec. 188. 
 
 ■'International Harvester Co. v. Porter, 160 Ky. 509; 169 S. W. 993. 
 
 436 
 
SALES § 6i8 
 
 Where the manufacturer has a selling agent, a purchaser who buys 
 a car and signs a memorandum naming the selUng agent as the seller 
 contracts solely with the agent although he was ordered to purchase 
 through an agent of the manufacturer who signed the memorandum in 
 the name of the selling agent.^ 
 
 § 6i8. Effect of partial payment on title. — A memorandum 
 showing that one had received part payment for an automobile the 
 balance to be paid vests the purchaser with the equitable ownership 
 so he can mortgage it.* 
 
 § 619. Title in case of conditional bill of sale. — Where an auto- 
 mobile is sold on conditional bill of sale the buyer and seller should 
 join in an action for its recovery and their relationship to the proprety 
 may be shown without producing the bill of sale as it is a collateral 
 matter.^" 
 
 § 620. Illegal use contemplated. — The sale of an automobile in- 
 tended to use it in a lottery with which the seller had nothing to do does 
 not estop the seller from enforcing the terms of the conditional sale 
 contract under which it was sold.^^ 
 
 § 621. Unfair competition. — The usual rules of unfair competition 
 apply to sales of motor vehicles and accessories. No dealer can in gen- 
 eral oflfer his goods to the public in a form or under a name likely to 
 deceive the public into thinking it is purchasing the goods of a rival.^^ 
 
 The use of the name "Imperial" on tires as a trade name was pro- 
 tected in a recent case.^^ 
 
 A dealer may be restrained from manufacturing and selling parts 
 under the name of the automobile for which they are adapted.^* 
 
 § 622. Statute of frauds. — Under the "Statute of Frauds," in force 
 in England and generally in America, where the amount involved is 
 
 ^Anderson v. White Co., 68 Wash. 568, 123 Pac. 1009. 
 
 »Adler v. Godfrey, 153 Wis. 186, 140 N. W. 1115. 
 
 i»Hull V. Seattle R. & S. Co., no Pac. 804, 60 Wash. 162. 
 
 iiWatkins v. Curry, 103 Ark. 414, 147 S. W. 43; 402 R. A. N. S. 967. For a 
 case where an automobile was offered as a prize in a newspaper "popularity" 
 contest held not to be a lottery see Comm. v. Jenkins, Ky., 166 S. W. 794. 
 
 i^Rushmoore v. Manhattan Screw, etc., Works, 163 Fed. 939, 19 L,. R. A. H. S. 
 269, where automobile lamps were similar in shape to another unpatented design. 
 
 isMcGraw Tire & Rubber Co. v. Griffith, 198 Fed. 566. 
 
 i*Ford Motor Co. v. Wilson (Cir. Ct. R. 4), 223 Fed. 808. 
 
 437 
 
§ 623 SaUS 
 
 "fifty dollars or more," an executory contract of sale should be in 
 writing "and signed by the parties to be charged by such contract or 
 their agents thereunto lawfully authorized." If such a memorandum 
 is not signed the agreement may be made valid by the payment of a 
 part of the purchase-price. If neither occurs then the agreement of 
 sale is invalid under the statute above referred to.^° 
 
 § 623. "Demonstration" — meaning of, and how proved. — In the 
 sale of automobiles it is a practice for the vendor to give the prospec- 
 tive customer a "demonstration" on the car itself, or on one of a similar 
 character. The usage has become so general that the word has ac- 
 quired a meaning in the trade. Grout Bros .v. Moulton^* was a case 
 based on a written contract of sale providing for a "satisfactory demon- 
 stration." The defendant purchaser was taken by some one to ride in 
 one of the cars, and upon return, plaintiff (the seller) "asked the 
 defendant how he liked the appearance of their cars." The plain- 
 tiff was permitted to prove in the lower court "what 'demonstration' 
 means as used in the trade" and the defendant was allowed to show 
 "what the parties unerstood it to mean as used in the contract." The 
 court, by Chief Justice Rowell, say : 
 
 "Direct oral statements of intention in respect to the subject 
 of a written contract are admissible only when the language 
 used is equivocal. * * * Here the words 'satisfactory demon- 
 stration,' though their trade meaning may be uncertain on their 
 face, are not shown by extrinsic evidence to be equivocal, and 
 therefore the case is not within the exception to the rule that 
 you cannot enlarge a written contract by oral evidence." 
 
 In conclusion the court held that while it was not error to permit 
 the plaintiff to prove the trade meaning of the word, it was error to 
 allow the defendant to show what the parties understood it to mean as 
 used in the contract, and to show such an understanding by direct oral 
 statements made by one of the plaintiffs at the time the contract was 
 executed. 
 
 § 624. Pleading. — The rules of pleading in cases growing out of 
 sales of motor vehicles, are similar to those in other cases. In Drexel 
 
 ''-^Benjamin on Sales, 7th ed., sec. 90 ; Story on Sales, 4th ed., sec. 256 ; Mass. 
 Rev. Laws, chap. 74, sec. 5. 
 1079 Vt. 122, 136, 64 Atl. 453- 
 
 438 
 
SALBS § 625 
 
 V. Hollander,^^ plaintiff bought an automobile and paid part cash for it 
 and in part by turning over an old automobile. Defendant was unable 
 to deliver the new car. By mutual consent the contract was rescinded 
 and the defendant returned the cash but failed to return the old car. 
 Plaintiff sued for the recovery not only of the cash, but for the con- 
 version of the old automobile, joining both counts in the same pleading. 
 The court divided on the defendant's demurrer upon the ground of 
 the improper joinder of causes of action. A majority of the judges 
 held that the two causes of action were inconsistent, one being pre- 
 dicated upon the theory that the title of the defendant to the old car 
 was good, while the second cause of action assumed the title to the 
 old car to remain in the plaintiff. In the minority opinion, the pre- 
 siding judge held that both causes of action proceeded on the theory 
 of rescission and the only inconsistency lay in the relief demanded, 
 which, upon the trial, might be awarded in consonance with the facts 
 proved. 
 
 § 625. Parol evidence in connection with a written contract. — 
 The general rule on this subject is "unless fraud or mistake are shown, 
 where the parties put their contract in writing, there is a conclusive 
 legal presumption that it contains the entire agreement in which all 
 previous verbal negotiations concerning the subject-matter have been 
 merged." In the case of Smith v. Vose Piano Co.^^ Mr. Justice Braley 
 uses the language just quoted, and continues as follows : 
 
 "But if any of the essential terms of the contract when ap- 
 plied to the transaction concerning which the parties dealt be- 
 came ambiguous, oral evidence is relevant and admissible, not 
 to construct a new agreement, but to ascertain what they un- 
 derstood by the one already made." Under such circumstances, 
 "the expression and general tenor of speech used in the pre- 
 vious negotiations, even if coming, as they usually must from 
 one or the other of the parties themselves, are admissible to 
 show the conditions existing at the time the transaction was 
 under consideration. * * * Their definition when thus ascer- 
 tained furnishes the last interpretation of their contract, the 
 construction of which remains as a question of law for the 
 court." 
 
 "112 N. Y. App. Div. 25, g8 N. Y. S. 104. 
 18194 Mass. 193, 199, 80 N. E. 527. 
 
 439 
 
§ 626 SALBS 
 
 In Ford Motor Co. v. Osborn^* Mr. Justice Adams says : 
 
 "It is fundamental that, when a contract is reduced to writ- 
 ing, it is conclusively presumed that the written instrument ex- 
 presses the entire contract between the parties, and that all prior 
 and contemporaneous negotiations, in respect to the subject- 
 matter of the contract, are excluded." 
 
 In Garfield v. Peerless Motor Car Co.^° the court held that testimony 
 as to usage is admissible when necessary to explain a matter left "un- 
 covered" by the contract, but not to contradict what is provided therein. 
 
 § 626. Functions of jury as to construction of contract and pass- 
 ing of title. — Although the court should not submit to the jury the 
 construction of a contract in most cases, still if there is any ambiguity 
 in the contract the matter should have been referred to the juiy.^^ 
 
 Where the question is whether title had passed where the sales agent 
 and customer had agreed on terms of purchase of an automobile and 
 were to go the next morning to get the money to pay for it it is the 
 duty of the court to instruct the jury fully as to what would in law 
 constitute a passing of title. A charge which omits one important ele- 
 ment, the intentions of the parties, is erroneous." 
 
 § 627. Intervention of equity.^^ — There are cases which arise on 
 the equity side of the court wherein relief may be granted against 
 mistakes, "the ground for the relief being that in the particular facts 
 of the case, it is inequitable that the one party should profit by the 
 mistake of the other ."^* 
 
 But whether the mistake be of law or of fact, "the question in all 
 cases is this, — will damages at law afford an adequate compensation 
 for breach of the agreement? If they will, there is no occasion for 
 the interference of equity, the remedy at law is complete ; if they will 
 not, specific performance of the agreement will be enforced."^' 
 
 19140 111. 633, 643. 
 
 2»i8p Mass. 395, 75 N. E. 695. 
 
 2iFederal Rubber Co. v. King, 11 Ga. App. 769, 76 S. E. 104. 
 
 2201ds Motor Works v. Churchhill, (Tex. Civ. App.), 175 S. W. 785. 
 
 28See § 628, "Specific performance." 
 
 2*Benjamin on Sales, 7th ed., sees. 414-419. 
 
 2=Benjamin on Sales, 7th ed., sees. 883, 884. 
 
 440 
 
SALES § 628 
 
 § 628. Specific performance.^® — In this connection it is appropriate 
 to draw brief attention to the subject of actions for specific perform- 
 ance. "The general rule is that the purchaser of personal property 
 cannot maintain a bill in equity for specific performance, for the rea- 
 son that the remedy at law for damages is ordinarily full and ade- 
 quate. * * * But wherever it is clear that the purchaser of personal 
 property has not a plain, adequate, and complete remedy at law, it 
 seems there is no reason why a bill for specific performance will not 
 lie in case of personal property as well as real."^' 
 
 § 629. Readiness to perform — a condition precedent to enforce- 
 ment. — "'The general rule in executory agreements for the sale of 
 goods is that the obligation of the vendor to deliver and that of the 
 buyer to pay, are concurrent conditions in the nature of mutual condi- 
 tions precedent, and that neither can enforce the contract against the 
 other without showing performance, or offer to perform, or averring 
 readiness and willingness to perform his own promise.."^* 
 
 § 630. Consideration. — The "consideration" is the purchase-price. 
 Where that has been expressly agreed upon there can arise no ques- 
 tion. If nothing has been said as to price, the law implies an under- 
 standing that the article is to be paid for at what it is reasonably worth, 
 which is to be determined by competent evidence.^' 
 
 In Shirk v. Neible^" Mr. Justice Hadley says : 
 
 "Courts will not enforce a contract between the parties thereto 
 that is not supported by a good or valuable consideration, that 
 is, by something of value moving between the parties which they 
 have mutually agreed to exchange. This upon the principle 
 that the law will not assist one who has not been damaged. 
 Adequacy of consideration is not required. The law is satisfied 
 if the parties freely agree to it. An answer of no consideration, 
 therefore, advises the court that the contract sued on is not en- 
 forceable because it has no foundation to rest upon, and it has 
 been repeatedly held that under such a plea, the defence will 
 fail if it is shown there was any consideration whatever for the 
 contract.. The amount of it is immaterial. * * * While, 
 
 2«See § 627, Intervention by equity. 
 
 ^^Dean's American Note to Benjamin on Sales, 7th ed., p. 957. 
 
 ^^Benjamin on Sales, 7th ed., sec. 592. 
 
 '''Benjamin on Sales, 7th ed., sec. 85; Story on Sales, 4th ed., sec. 216 et seq. 
 
 3»i56 Ind. 66, 75, S9 N. E.'aSi. 
 
 441 
 
§ 631 SALES 
 
 Upon the other hand, an answer of fraud or failure of considera- 
 tion, travels upon an entirely different theory. An answer of 
 failure of consideration implies that there was a consideration 
 sufificient to support the contract, but that it has subsequently 
 failed in whole or in part without fault of the defendant." 
 
 Where the consideration was to be paid in part out of dividends 
 when declared on stock the buyer held in the selling company and the 
 company goes into bankruptcy and pays no dividends no recovery can 
 be had for the balance.^^ 
 
 § 631. Failure of consideration. — The circumstances under which 
 a failure of consideration may occur which will permit the recission of 
 the contract, involve too many intricacies and discriminations for a full 
 consideration in a work of this scope and character. In Dean's Ameri- 
 can note to Benjamin on Sales,'^ it is said generally: 
 
 "If the buyer gets the exact thing he ordered and paid for, 
 its worthlessness is, of itself, no failure of consideration. * * * 
 In an entire sale, a failure of consideration as to part only, the 
 rest being received and enjoyed, does not authorize a partial 
 rescission and the recovery back of what has been paid. * * * 
 Though the vendee might not be bound to accept a part only. 
 * * * But the purchase of several different articles at the 
 same time with a fixed price for each does not necessarily con- 
 stitute one entire sale, and a right of recission may exist as to 
 each article."^^ 
 
 § 632. Failure of consideration resulting from misrepresenta- 
 tion. — "Mistake" and "failure of consideration" are in many respects 
 convertible terms. The latter generally arises out of the former. We 
 have seen that mistake is apt to arise out of a misrepresentation, either 
 innocent or culpable.'* 
 
 "An innocent misrepresentation of fact or law may give rise to a con- 
 tract, and thus involve the question whether the party deceived by such 
 innocent misrepresentation is entitled on that ground to avoid the con- 
 tract."" 
 
 siHathaway v. Vaughan, 162 Mich. 269, 127 N. W. 337. 
 
 »27th ed., p. 397- 
 
 s'See also Story on Sales, 4th ed., sec. 425. 
 
 '*§ 60s, et seq. 
 
 s'Benjamin on Sales, 7th ed., sec. 420. 
 
 442 
 
SALES § 633 
 
 In Kennedy v. Panama Mail Co.'° Mr. Justice Blackburn says : 
 
 "There is, however, a very important difference between cases 
 where a contract may be rescinded on account of fraud, and 
 those in which it may be rescinded on the ground that there is 
 a difference in substance between the thing bargained for and 
 that obtained. It is enough to show that there was a fraudulent 
 representation as to any part of that which induced the party 
 to enter into the contract which he seeks to rescind ; but where 
 there has been an innocent misrepresentation or misapprehen- 
 sion, it does not authorize a rescission, unless it is such as 
 to show that there is a complete difference in, substance between 
 what was supposed to be and what was taken, so as to consti- 
 tute a failure of consideration. For example, where a horse 
 is bought under a belief that it is sound, if the purchaser was 
 induced to buy by a fraudulent representation as to the horse's 
 soundness, the contract may be rescinded. If it was induced 
 by an honest misrepresentation as to its soundness, though it may 
 be clear that both vendor and purchaser thought that they were 
 dealing about a sound horse and were in error, yet the pur- 
 chaser must pay the whole price, unless there was a warranty, 
 and even if there was a warranty, he cannot return the horse and 
 claim back the whole price, unless there was a condition to that 
 effect in the contract." 
 
 § 633. Delivery. — As applied to motor vehicles the law relating to 
 delivery in the matter of sale is, under ordinary circumstances, much 
 simplified, that is to say, the word is here used to indicate passing of 
 the possession to the machine from the vendor to the vendee. Of 
 course where there is an executory contract of sale the word "delivery" 
 has application as well to the passing of the contract as to the final 
 act in performing of the contract, namely, the delivery of the vehicle 
 itself." 
 
 § 634. Delivery in executory contract of sale of specific chattels. 
 — Two rules on this subject are stated by Mr. Benjamin:** 
 
 "First — ^Where, by the agreement the vendor is to do any- 
 thing to the goods for the purpose of putting them into that 
 state in which the purchaser is to be bound to accept them, or 
 
 8«L. R. 2 Q. B. 580, 587. 
 
 ^^Benjamin on Sales, 7th ed., sec. 647 et seq.; Parsons on Contracts, 9th ed., 
 Book III, chap. V, p. 575; Story on Sales, 4th ed., sec. 300. 
 s*(on Sales 7th ed., sec. 318.) 
 
 443 
 
§ 635 SAi,Bs 
 
 as it is sometimes worded, into a deliverable state, the perform- 
 ance of those things shall in the absence of circumstances in- 
 dicating a contrary intention, be taken to be a condition prece- 
 dent to the vesting of the property. 
 
 "Second — ^Where anything remains to be done to the goods 
 for the purpose of ascertaining the price, as by weighing, meas- 
 uring or testing the goods, where the price is to depend on the 
 quantity or quality of the goods, the performance of these things 
 also shall be a condition precedent to the transfer of the prop- 
 erty, although the individual goods be ascertained, and they are 
 in the state in which they ought to be accepted."^' 
 
 § 635. When article is to be manufactured. — When an agreement 
 of sale covers an article "to be manufactured" the contract is an ex- 
 ecutory contract, and no property passes until the terms and specifica- 
 tions of the contract have been performed by the vendor.*" 
 
 § 636. Executory sale of articles to be specified at a future time, 
 — There are occasions where executory contracts of sale are made leav- 
 ing it in the future as to the specific articles to which the contract shall 
 apply. Such a contract is "converted into a complete bargain and sale 
 by specifying the goods to which the contract is to attach. * * * 
 The contract has been made in two successive stages instead of being 
 completed at one time ; but it is none the less one contract, namely, a 
 bargain and sale of goods."*^ 
 
 Wheaton v. Cadillac Auto Co.*^ illustrates this feature of the law 
 of contracts of sale. Plaintiff sued on a contract for the sale and de- 
 livery of fifty automobiles. Defendant proved that by the terms of 
 the contract the cars were to be delivered "as specified," and that plain- 
 tiff had failed to specify the cars as provided in the contract. The 
 court held that in view of the terms of the agreement it should be read 
 as a simple contract for fifty automobiles, and that as such it "was too 
 indefinite for enforcement," as no styles or forms of machines had 
 been specified nor could the cars be delivered except as ordered. 
 
 A contract by an agent "to purchase five cars optional * * * to 
 be shipped * * * as ordered" means that he is bound to purchase 
 five cars although he may select them.*' 
 
 s^See also Story on Sales, 4th ed., sec. 298 et seq. 
 
 ^"Benjamin on Sales, 7th ed., sec. 352 ; Story on Sales, 4th ed., sec. 233. 
 
 *iBenjamin on Sales, 7th ed., sec. 358. 
 
 *2i43 Mich. 21. 
 
 «Alden v. Kaiser, 121 Minn, ii; 140 N. W. 343- 
 
 444 
 
SAI,ES § 637 
 
 § 637. "Sale on trial" or "sale on approval" and "sales or re- 
 turn."** — (i) In a case of "sale on approval" "there is no sale till the 
 approval is given either expressly or by implication resulting from 
 keeping the goods beyond the time allowed for trial." (2) In case of 
 "sale or return" "the sale becomes absolute and the property passes 
 only after a reasonable time has elapsed without the return of the 
 goods." (3) In "sale on trial" "the mere failure to return the goods 
 within the time specified for trial makes the sale absolute, but the 
 buyer is entitled to the full time agreed on for trial as he is at liberty 
 to change his mind during the whole term."*' 
 
 Where a sale is made on approval the purchaser's determination that 
 the car is unsatisfactory is conclusive as to whether or not the guaranty 
 had been complied with.*° 
 
 § 638. Misuse or injury to property while on trial. — But if the 
 vendee in such case, substantially injure the property or abuse it to 
 such an extent as to disable it, then the sale becomes absolute and the 
 obligation to pay the price becomes unconditional. In Ray y. Thomp- 
 son*' a horse was sold with the right to return him within a specified 
 time if not satisfactory to the defendant. On the trial of the action it 
 was shown that while the animal was in defendant's possession, he 
 misused and abused it, whereby it was materially injured and lessened 
 in value, on account of which the plaintiflE refused to accept the animal 
 in return. The court say : 
 
 "The sale was on a condition subsequent, that is, on condi- 
 tion he did not elect to keep the horse, to return him within the 
 time limited. Being on a condition subsequent, the property 
 vested presently in the vendee, defeasible only on the perform- 
 ance of the condition. If the defendant, in the meantime dis- 
 abled himself from performing ^he condition, and if the horse 
 was substantially injured by the defendant by such abuse, he 
 would be so disabled — then the sale became absolute, the obli- 
 gation to pay the price became unconditional." 
 
 **See § 744, Condition subsequent. 
 
 *5Benjamin on Sales, 7th ed., sec. 595 ; Story on Sales, 4th ed., sec. 313; 
 Williams Mfg. Co. v. Standard Brass Co., 173 Mass. 356, 53 N. E. 862; Spring- 
 field Engine, etc. Co. v. Sharp, 184 Mass. 266, 68 N. E. 224. 
 
 *8Halff Co. V. Jones, Tex. Civ. App. 169 S. W. 906. 
 
 *'66 Mass. 281. 
 
 445 
 
§ 639 SALSS 
 
 § 639. Acceptance.^When the vendor has completed all that his 
 contract requires of him, and tenders the vehicle it devolves upon the 
 buyer, in his turn, to comply with the obligations which he assumed, 
 which may be summed up by saying that, in the absence of express 
 stipulations, the buyer's duties are performed when he accepts the 
 goods and pays the price. The acceptance of the goods should be 
 within a reasonable time after proffer of delivery by the seller. "The 
 question of what is a reasonable time is one of fact for the jury under 
 all the circumstances of the case."** 
 
 § 640. Right of inspection before acceptance.*' — The buyer is en- 
 titled before acceptance to a fair opportunity of inspecting the goods 
 so as to see if they correspond with the contract." He is not bound 
 to accept goods which are closed up and which the vendor refuses to 
 open, or to comply with the contract at all, but may rescind it if the 
 seller refuses to let him compare it with the sample by which it was 
 sold, "when the demand is made at a proper and convenient time.""" 
 
 In Pierson v. Crooks°^ the New Work Court of Appeals extensively 
 review the authorities, English and American, on this subject, and fol- 
 low the case of Pope v. AUis.**^ Mr. Justice Andrews, in speaking of 
 the vendee's right of inspection, says that in case of — 
 
 "Mere delivery of goods under an executory contract * * * 
 on arrival, the purchaser has the right of inspection and rejec- 
 tion if they do not conform to the contract." 
 
 § 641. Caveat em.ptor.^* — Mr. Benjamin" says the rule of caveat 
 emptor applies : 
 
 "In general, where an article is offered for sale, and is open 
 to the inspection of the purchaser, the common law does not 
 
 *8Benjamin on Sales, 7th ed., sees. 699, 700; Story on Sales, 4th ed., sec. 
 301 ; Berg v. Rapid Motor Vehicle Co., 78 N. J. L. 724, 75 Atl. 933- 
 
 *9See § 682, Laches. 
 
 ^'Benjamin on Sales, 7th ed., sees. 701, 879, and Dean's Am. note to sees. 699, 
 705- 
 
 ^iiiS N. Y. 539, S49, 22 N. E. 349, 12 Am. St. Rep. 831. 
 
 52IIS U. S. 363, 6 S. Ct. 69. 
 
 "^See § 606, Manufacturers— Implied warranty. 
 
 (S'lOn Sales, 7th ed., sec. 430.) 
 
 446 
 
SAtES § 642 
 
 permit the latter to complain that the defects, if any, of the 
 article are not pointed out to him."'^ 
 
 Dr. Wharton,^' in speaking of the purchaser buying on his own judg- 
 ment, says: 
 
 "In such cases the maxim caveat emptor applies. The pur- 
 chaser, such is the understanding of both parties, relies on his 
 own inspection, and not upon any assurance of the vendor. 
 Thus, where a purchaser inspects personally a specific article 
 sold, and the seller who is not the manufacturer, makes no war- 
 ranty, and is guilty of no fraud, and the intended use of the 
 article is not communicated at the time to the vendor, there is 
 no implied warranty by the vendor that the article is fitted for 
 the use to which the purchaser intended to apply it, although 
 the vendor might have supposed what was the intended use." 
 
 In I Parsons on Contracts^^ it is said, concerning contracts : 
 
 "If there be no express warranty, the common law in general 
 implies none. Its rule is unquestionably, both in England and 
 in this country, caveat emptor — let the purchaser take care of 
 his own interests. This rule is apparently severe, and it some- 
 times works wrong and hardship. * * * It is always in the 
 power of a purchaser to demand a warranty, and it is a most 
 reasonable principle, and is now established as a rule of law, that 
 a purchaser who is put upon inquiry, is chargeable with notice 
 or knowledge of all those facts which he would have learned by 
 reasonable inquiry and such investigation as a man of common 
 prudence would have made."'* 
 
 § 642. Fraud sets aside rule of caveat emptor. — (i) "One im- 
 portant and universal exception is this: the rule never applies to 
 cases of fraud, never proposes to protect a seller against his own fraud, 
 nor to disarm a purchaser from a defense or remedy against a seller's 
 fraud. * * * If the seller knows of a defect in his goods which the 
 buyer does not know * * * and the seller is silent, and only silent," 
 
 ^^See Story on Sales, 4th ed., sees. 349, 378, 416; Morley v. Consol. Mfg. 
 Co., 196 Mass. 257, 8 N. E. 993, 1907. 
 
 (ssQn Contracts, sec. 907.) 
 
 "^gth ed., p. 613. 
 
 '^See Cunningham v. Hall, 86 Mass. 268, quoted sec. 598, chapter on Manu- 
 facturers. 
 
 447 
 
§ 643 SALits 
 
 such silence does not ordinarily amount to a legal fraud. But "if the 
 seller be not silent but produces the sale by means of false representa- 
 tions, then the rule of caveat emptor does not apply and the seller is 
 answerable for his fraud. But the weight of authority requires * * * 
 active fraud. The common law does not oblige a seller to disclose all 
 that he knows which lessens the value of the property he would sell 
 * * * leaving the purchaser to inquire and examine for himself, or 
 to require a warranty. * * * But if he be more than silent, if by 
 acts, and certainly if by words he leads the buyer astray, * * * q^ 
 otherwise preventing his examination or inquiry, this becomes a fraud 
 of which the law will take cognizance." The distinction seems to be 
 that "the seller may let the buyer cheat himself ad libitum, but must 
 not actively assist him in cheating himself."^' 
 
 (2) Another exception occurs "if the parties to a sale are not in a 
 condition of perfect equality as to their abiUty to judge accurately of 
 the thing sold." False representations of the seller in such cases will 
 avoid the contract.*"' 
 
 In this connection it is said (Parsons, ibid, p. 619) : 
 
 "If, therefore, the seller alone possesses the requisite knowl- 
 edge, or the means of knowledge, and offers his goods for sale 
 under circumstances which compel the purchaser to rely upon 
 the judgment and honesty of the seller, without any examina- 
 tion on his part as to the quality of the thing offered, it has been 
 held, that the rule of caveat emptor does not apply, because it 
 cannot apply, and that the seller warrants that the goods he of- 
 fers for sale are, in respect to their qualities, what the purchaser 
 may fairly understand them to be ; in other words, that they are 
 of merchantable value, and proper subjects of trade."'^ 
 
 § 643. Mistake. — "A party who has given apparent assent to a 
 contract of sale may refuse to execute it if the assent was founded on 
 a mistake of a material fact, such as the subject-matter of the sale, 
 the price, and, in some instances, the identification of the other con- 
 tracting party. The contract in such case has never come into ex- 
 istence for want of a valid assent." Such a mistake "alleged as a rea- 
 son for avoiding a contract, may be that of both parties, or of one 
 
 Bfli Parsons on Contracts, pth ed., p. 614. 
 
 BoBigler v. Flickinger, SS Pa. St. 279 ; i Parsons on Contracts, pth ed., p. 6i7- 
 
 »iSee also Grout Bros. etc. v. Moulton, 79 Vt. ip2, 64 Atl. 453. 
 
 448 
 
SALES § 643 
 
 alone; it may be a mistake of law or of fact; and when the misatke 
 is that of one party alone, that fact may be known or unknown to 
 the other contracting party. When there has been a common mistake 
 as to some essential fact forming an inducement to the sale, that is, 
 when the circumstances justify the inference that no contract would 
 have been made if the whole truth had been known to the parties, the 
 sale is voidable." In such case "if either party has performed his 
 part during the continuance of the mistake, he may set aside the sale 
 on discovering the truth, unless he has done something to render im- 
 possible" a restoration of the other party "to the condition in which 
 he was before the contract was made." If that be not possible, the 
 mistaken party "must be content with a compensation in damages." 
 
 "Where the mistake is that of one party only to the contract, and is 
 not made known to the other, the party laboring under the mistake 
 must bear the consequences, in the absence of any fraud or warranty." 
 Thus: 
 
 "If A. and B. contract. for the sale of the cargo per ship 
 Peerless, and there be two ships of that name, and A. means 
 one ship and B. intend the other ship, there is no contract. But 
 if there be but one ship Peerless, and A. sells the cargo of that 
 ship to B., the latter would not be permitted to excuse himself 
 on the ground that he had in his mind the ship Peerless, and in- 
 tended to contract for a cargo by this last-named ship. Men 
 can only bargain by mutual communication ; and if A.'s pro- 
 posal were unmistakable, as if it were made in writing, and B.'s 
 answer was an unequivocal and unconditional acceptance, B. 
 would be bound, however clearly he might afterwards make it 
 appear that he was thinking of a different vessel." 
 
 "The rule of law is general that whatever a man's real intention may 
 be, if he manifests an intention to another party so as to induce that 
 other party to act upon it, he will be estopped from denying that the 
 intention as manifested was his real intention. When the mistake of 
 one party "is known to the other, then the question resolves itself 
 generally into one of fraud," and if such person "not only knew of the 
 buyer's mistake, but caused it, his conduct would be fraudulent. * * * 
 The exception to this rule exists only in cases where from the relations 
 between the parties, some special duty is incumbent on the one to make 
 full and candid disclosure of all he knows on the subject to the other. 
 
 449 
 29 
 
§ 644 SAi,ES 
 
 * * * The mistake which will justify a party in seeking to avoid his 
 contract must be one of fact, not of law. The universal rule is ig- 
 norantia juris neminem excusat."^^ 
 
 § 644. Rescinding contract on the ground of mistake. — In Dean's 
 American Note to the 7th ed. of Benjamin on Sales, p. 396, the subject 
 of mistake and failure of consideration which will warrant the rescis- 
 sion of a sale, is generally summed up as follows : 
 
 "It seems that the same mistake which excuses a party from 
 performance of his executory contract will enable him to re- 
 scind it after execution, if he then first discovers the mistake, 
 and can and does place the other party in statu quo. If he has 
 paid for an article under a material mistake of fact, and re- 
 stores or offers to restore it, he may recover back what he has 
 paid. And the rule is positive that, if the article is or may be 
 of any value to the opposite patty, it must be returned, before 
 the amount paid can be recovered back, the same as in cases of 
 fraud or warranty. Kimball v. Cunningham, 4 Mass. 502, a 
 leading case; Conner v. Henderson, 15 lb. 319." Citing many 
 other cases in different states.*^ 
 
 § 645. Fraud and deceit. — Mr. Benjamin"* announces that which 
 has come to be a maxim of the law, namely : 
 
 "Fraud renders all contracts voidable ab initio both at law 
 and in equity. No man is bound by a bargain into which he 
 has been deceived by a fraud, because assent is necessary to a 
 valid contract, and there is no real assent where fraud and de- 
 ception have been used as instruments to control the will and in- 
 fluence the assent. 
 
 Although fraud has been said to be 'every kind of artifice 
 employed by one person for the purpose of deceiving another,' 
 courts and lawgivers have alike wisely refrained from any at- 
 tempts to define with exactness what constitutes a fraud, it being 
 so subtile in its nature, and so Protean in its disguises, as to 
 render it almost impossible to give a definition which fraud 
 would not find means to evade." 
 
 '^Benjamin on Sales, 7th ed., sec. 414 et seq. 
 83See Story on Sales, 4th ed., sees. I42-IS7- 
 (8*0n Sales, 7th ed., sec. 428.) 
 
 450 
 
SALES § 64s 
 
 Without attempting to enter upon a review of the general subject 
 of fraud in matters of sale, attention is drawn to the following prin- 
 cipal features which enter into it in its jurisdical aspect : 
 
 (i) "It is essential that the means used should be successful 
 in deceiving." , However false and dishonest the artifices or con- 
 trivances may be, they do not otherwise constitute a fraud in 
 law. 
 
 (2) "It is now well settled that there can be no fraud with- 
 out dishonest intention. * * * Therefore, however false may 
 be the representation of one party to another to induce him to 
 make a contract, there is no ground for avoiding it as obtained 
 by fraud, if the party making the representation honestly and 
 on reasonable grounds, believed it to be true; although other 
 remedies are sometimes available to the deceived party" as is 
 elsewhere pointed out.°° 
 
 (3)- "There must be damage to the party deceived, even 
 when there is knowingly false representation, before a right of 
 action can arise. 'Fraud without damage, or damage without 
 fraud, gives no cause of action.' " "The injury must be im- 
 mediate, and not the remote consequences of the representation." 
 
 "Mistaken belief as to facts may be created by active means, as 
 by fraudulent concealment ,or knowingly false representation ; or pas- 
 sively, by mere silence, when it is a duty to speak. But it is only 
 where a party is under some pledge or obligation to reveal facts to 
 another that mere silence will be considered as a means of deception." 
 "In general where an article is offered for sale and is open to the in- 
 spection of the purchaser, the common law does not permit the latter 
 to complain that the defects, if any, of the articles are not pointed out 
 to him." If the buyer is unwilling to rely upon his own judgment and 
 experience "he can protect himself against his own want of care or skill 
 by requiring from the vendor a warranty of any matters, the risk of 
 which he is unwilling to take on himself. But the use of any device 
 by the vendor to induce the buyer to omit inquiry or examination into 
 the defects of the thing sold, is as much a fraud as any active conceal- 
 ment by the vendor himself." Fraud on the part of the vendee gives 
 the vendor the right "to repudiate the contract" and conversely, fraud 
 on the part of the vendor gives the right to the vendee "to disaffirm 
 the sale when he has been defrauded." 
 
 ("Sees. 764-768, et seq., also General Index.) 
 
§ 646 SAL,tS 
 
 "The buyer under such circumstances may refuse to accept 
 the goods if he discovers the fraud before delivering; or re- 
 turn them if the discovery be not made until after delivery; 
 and if he has paid the price he may recover it back on offering 
 to return the goods in the same state in which he received 
 them."«8 
 
 § 646. Defects patent or latent. — Where the defects are patent the 
 seller may not be liable for false representations but where they are so 
 far latent as to require a dismantling of the car to ascertain them the 
 seller is liable.^^ So a misrepresentation of the power developed by the 
 car may be a ground for annuling the sale.** 
 
 § 647. Fraud not resulting in pecuniary loss. — ^Where the plain- 
 tiffs, selling agents, induced the defendant to purchase an automobile 
 by telling him that his wife wanted it, which was not true, he can 
 rescind the sale and refuse to pay checks he has given for the purchase- 
 price. The fact that he has suffered no pecuniary loss through the mis- 
 statement is immaterial.*' 
 
 § 648. Falsely pretending to be a prospective customer. — A 
 dealer in automobiles can rescind a purchase of an automobile he 
 made induced by the false representations of a representative of the 
 seller who went to the buyer disguising his real name and pretending 
 he desired to purchase an automobile of that model.'" 
 
 § 649. Sale through middleman. — A county agent for an auto- 
 mobile is liable in deceit where it represents to a purchaser that a cer- 
 tain car is able to do certain things and is suitable for its purpose when 
 it is not. The defendant cannot evade responsibility by evidence that 
 it sold the car to a dealer who delivered it to the plaintiff as this is 
 simply a step in the sale to the plaintiff.'^ 
 
 § 650. Acquiescence in fraud. — Fraud does not render the contract 
 void ipso facto, it is only voidable. "If after discovery of the fraud," 
 the party "acquiesces in the sale by express words or by any unequivo- 
 
 ""Benjamin on Sales, 7th ed., sees. 428, 452; Story on Sales, 4tli ed., sees. 
 379, 420; Washburn v. Rainier Co., 130 N. Y. App. Div. 42, 114 N. Y. S'. 424; 
 Joslyn V. Cadillac Co., 177 Fed. Repr. 863,. 1910. 
 
 o'Kloek V. Newbury, 63 Wash. 153, 114 Pae. 1032. 
 
 «8joslyn V. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. 77. 
 
 ooCase, Tresburg Wamchine Co. v. Webb, Tex. Cir. App. 181 S. W. 853. 
 
 ToKavanau v. Hubbard, Tex. Cir. App. 160 S. W. 304. 
 
 "Halff Co. V. Jones, Tex. Civ. App., 169 S. W. 906. 
 
RIGHTS AND RIjMIvDiES OP VUNDOR § 65 1 
 
 cal act, such as treating the property as his own, * * * he cannot 
 afterwards reject the property. Mere delay also may have the same 
 effect."^^ 
 
 § 651. Waiver of defects by the buyer. — It goes almost without 
 saying that the buyer may expressly or by implication from circum- 
 stances waive his rights to rescind or to bring an action for damages. 
 The rule is thus stated in i Parsons on Contracts f ^ 
 
 "In general, when a buyer asserts that the goods he pur- 
 chased are not what they were warranted to be, or are so dif- 
 ferent from what he ordered or from the seller's representation 
 of them, or from the quality and value such articles should 
 possess, as to give him a right to rescind and avoid the sale, he 
 must forthwith return the goods if he would exercise this right. 
 Delay in doing so, or any act equivalent to acceptance, employ- 
 ment, or disposition of the goods, after he knows or should know 
 their deficiency, if it exists, would be construed either into an 
 admission that there was no such deficiency, or into a waiver of 
 his right to rescind the sale because of such deficiency."^* 
 
 § 652. Knowledge of defects based on failure of other cars. — 
 
 A salesman cannot be permitted to state that the president of an auto- 
 mobile company knew of the defective condition of the car in question 
 prior to its sale because other cars of the same model had gone wrong.''" 
 
 II. THE RIGHTS AND REMEDIES OF VENDOR 
 
 A. Where possession has not passed 
 
 653. Breach by the buyer. 
 
 654. Time of breach. 
 
 655. Defaulting buyer forfeits advances. 
 
 656. Remedies. 
 
 657. Remedies against the goods — lien. 
 
 658. Right of stoppage in transit. 
 
 § 653. Breach by the buyer. — ^Until the time that the delivery 
 occurs under an executory contract of sale, breach by the buyer of 
 
 ^^Benjamin on Sales, 7th ed., sec. 452; Story on Sales, 4th ed., sec. 159; 
 Joslyn V. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. 77. 
 ^^pth ed., sec. 631. 
 
 ^*See Joslyn v. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. 77. 
 '=White Automobile Co. v. Dorsey, Md., 119 Md. 251, 86 Atl. 617. 
 ■''See § 603, Manufacturers — Remedies of manufacturer. 
 
 453 
 
§ 6S4 SAi<Es 
 
 his promise to accept and pay for the property can only afifect the 
 vendor by way of damages. The goods are still his. He can resell 
 them or not at his pleasure, but his only action against the buyer is 
 for damages for non-acceptance. He can, in general, only recover the 
 damage that he has sustained less than the full price of the goods." 
 
 The lawr with the reason for it, was thus stated by Tindal, C. J., in 
 Ihe case of Barrow v. Amaud :" 
 
 "When a contract to deliver goods at a certain price is 
 broken, the proper measure of damages in general, is the dif- 
 ference between the contract price and the market price of such 
 goods at the time when the contract is broken, because the pur- 
 chaser, having the money in his hands, may go into the market 
 and buy. So, if a contract to accept and pay for goods is broken, 
 the same rule may be properly applied, for the seller may take 
 his goods into the market and obtain the current price for 
 them." 
 
 See Story on Sales,^' 4th ed., sees. 436-445. 
 
 § 654. Time of breach. — "The date at which the contract is con- 
 sidered to have been broken is that at which the goods were to have 
 been delivered, not that at which the buyer may give notice that he 
 intends to break the contract and to refuse to accept the goods."'" 
 
 § 655. Defaulting buyer forfeits advances. — Cedar Rapids Auto 
 Co. V. Jeffrey'^ was a case where an automobile selling agency had 
 been created on certain representations which plaintiff alleged were un- 
 fulfilled. The plaintiff, as agent, was required by its contract, on each 
 car shipped to make an advance payment or deposit of $25, and to pay 
 for all repairs and supplies which the defendant should make or de- 
 liver. Plaintiff gave an order for twenty-five automobiles and ad- 
 vanced the $25 on each car ; subsequently plaintifif sued for the return 
 of the advanced payments, claiming a rescission of the contract on its 
 part for misrepresentation by defendant. The court held that plaintiff 
 having failed to give prompt notice to rescind, and having refused to 
 
 '^Benjamin on Sales, 7th ed., sec. 758. 
 788 Q. B. Adol. & El. N. S. 595- 
 794th ed., sees. 436-445- 
 ^oBenjamin on Sales, 7th ed., sec. 759. 
 81 139 Iowa 7, 116 N. W. 1054. 
 
 454 
 
RIGHT$ AND REMEDIES OP VENDOR § 656 
 
 comply with the other terms of the contract could not recover back the 
 advanced sum. Mr. Justice Weaver, who wrote the opinion, remarks : 
 
 "As to these cars, plaintiff stands in the relation of a buyer, 
 who has paid a part of the purchase-price in advance of de- 
 hvery, and it is an elementary proposition of law that it cannot, 
 without good cause, refuse to consummate the deal and demand 
 a return of the payment." 
 
 § 656. Remedies. — In pursuing his remedy the vendor has open to 
 him one of three courses. In Dunstan v. McAndrew*^ it is said : 
 
 "The vendor of personal property, in a suit against the ven- 
 dee for not taking and paying for the property, has the choice 
 ordinarily of one of three remedies : ist, He may store or re- 
 tain the property for the vendee and sue him for the entire 
 price ; 2d, He may sell the property, acting as the agent for this 
 purpose, of the vendee, and recover the difference between the 
 contract price and the price of resale ; or 3d, He may keep the 
 property as^his own, and recover the difference between the 
 market price at the time and place of delviery and the contract 
 price."*^ 
 
 § 657. Remedies against the goods — lien. — "A lien in general 
 may be defined to be a right of retaining property until a debt due to 
 the person retaining it has been satisfied; and as the rule of law is 
 that in a sale of goods, where nothing is specified as to delivery or pay- 
 ment, the vendor has the right to retain the goods until payment of 
 the price, he has in all cases at least a lien, unless he has waived it. 
 * * * But this lien extends only to the price. If by reason of the 
 vendee's default the goods are kept in a warehouse, or other charges 
 are incurred in detaining them, the lien does not extend to such claim, 
 and the vendor's remedy, if any, is personal against the buyer."** 
 
 "The vendor's lien may of course be waived expressly. It may also 
 be waived by implication, * * * and it may be abandoned * * * 
 by the vendor's actually parting with the goods before payment. * * * 
 
 8244 N. Y. 72. 
 
 ''See Benjamin on Sales, 7th ed., sec. 788, in the note to which it is said 
 that the law Jaid down in the case just quoted "has been since frequently affirmed 
 and re-stated." 
 
 **Benjamin on Sales, 7th ed., sec. 796; Parks v. Hall, 19 Mass. 206, 211; 
 Barrett v. Pritchard, 19 Mass. 512, 515. 
 
 455 
 
§ 6s8 SAi<Bs 
 
 The vendor also waives his lien by taking from the buyer a bill of ex- 
 change or other security payable at a distinct day. * * * A delivery 
 cf the goods to a common carrier for conveyance to the buyer is such a 
 delivery of actual possession to the buyer through Jiis agent, the car- 
 rier, as suffices to put an end to the vendor's lien."'^ 
 
 § 658. The right of stoppage in transitu is the last remedy which 
 the unpaid vendor has against the goods. This right continues to vest 
 in the creditor until actual delivery by the carrier to the vendee.^" 
 
 The right of stoppage in transitu is not in law a rescission of the 
 contract on the part of the vendor, it "does not more than continue 
 the vendor's lien after the property has passed from his possession" 
 into the hands of a carrier for delivery to the buyer, until the time 
 when it shall have reached the actual custody or possession of the 
 vendee.*' ' ' 
 
 B. Where possession has passed 
 
 659. Personal action. 
 
 660. Conditional sale — buyer in default. 
 
 § 659. Personal action. — "Whenever the goods have reached the 
 actual possession of the buyer, the vendor's sole remedy is by a personal 
 action. He stands in the position of any other creditor to whom the 
 buyer may owe a debt. * * * 'j^jjg principle at common law is that 
 the goods have become the property of the buyer, and that the vendor 
 has agreed to take for them the buyer's promise to pay the price." 
 The vendor's damages in such case are limited to the amount of the 
 price promised, to which interest may be added.'* 
 
 § 660. Conditional sale — buyer in default. — Various questions as 
 to sale of automobiles under conditional sale where the buyer was 
 claimed in default and the seller replevied the cars were considered in 
 a recent Washington decision.'" 
 
 8'^Benjamin on Sales, 7th ed., sees. 797-804. 
 
 si'Benjamin on Sales, 7th ed., sec. 828 et seq., 1 Parsons on Contracts, gth ed., 
 Book III, chap. 6, p. 633 et seq. 
 
 s^Wald's Pollock on Contracts, 3d ed., p. 335; Rowley v. Bigelow, 29 Mass. 
 307, 312- 
 
 s^Benjamin on Sales, 7th ed., sec. 764. 
 
 s^Winton Motor Carriage Co. v. Blomberg, Wash. 84 Wash. 451, 147 Pac. 21. 
 
 456 
 
RIGHTS AND REMEDIES OF BUYER § 66l 
 
 III. RIGHTS AND REMEDIES OF THE BUYER 
 66l. In general. 
 
 § 66i. In General. — "The breach of contract of which the buyer 
 complains may arise (i) from the vendor's default in delivering the 
 goods; or (2) from some defect in the goods delivered; (3,) there 
 may be a breach of the principal contract for the transfer of the prop- 
 erty and delivery of possession, or, (4) of the collateral contract of 
 warranty, either of quality or title." (5) The buyer may "avoid the 
 contract for mistake, failure of consideration, fraud or illegality." 
 This last feature has been to some extent, discussed in the preceding 
 sections under the appropriate topics."* 
 
 A. Before Obtaining Possession of the Goods Where the Contract is Executory 
 
 662. Damages. 
 
 663. Market price. 
 
 664. Duty of buyer where seller fails to deliver. 
 
 665. General American rule as to damages. 
 
 666. Nominal damages. 
 
 667. Conversion. 
 
 668. Demand and tender as condition precedent. 
 
 § 662. Damages.'^ — Where the property has not passed to the 
 buyer, he may recover damages for the breach of the contract. Such 
 damages "are in general, the difference between the contract price 
 and the market value of the goods at the time when the contract is 
 broken." The damages allowed are "not only general damages, that 
 is, such as are the necessary and immediate result of the breach, but 
 special damages, which are such as are a natural and proximate conse- 
 quence of the breach, although not in general following as its imme- 
 diate effect. * * * Damages of the latter class, are not recoverable 
 unless alleged" (in the plaintiff's pleading) "with sufficient particular- 
 ity to enable the defendant to prepare himself with evidence to meet 
 the demand at the trial while those of the former class are sufficiently 
 particularized by the very statement of the breach.""^ 
 
 soBenjamin on Sales, 7th ed., sec, 869; i Parsons on Contracts, 9th ed., 
 p. 629; Story on Sales, 4th ed., sees. 448, 458. 
 «See §§ 1753-1754. 
 '^Benjamin on Sales, 7th ed., sec. 870. 
 
 457 
 
§ 663 SAMS 
 
 In Isaacs v. Wanamaker®^ action was brought to recover damages 
 for breach of an express warranty on an automobile, for the full amount 
 of the purchase-price, with freight charges and interest. The court 
 held that "where an article is delivered to the purchaser with an express 
 warranty, the measure of the purchaser's damages on the breach 
 thereof, is the difference between the value of the article if it had been 
 as warranted, and the actual value." 
 
 § 663. Market price.'* — ^^The general rule is well established that 
 the words "the market price," mean the market price of the goods "at 
 the time when, and at the place where they should have been delivered. 
 And where there is no market at the place of delivery, then at the near- 
 est available market, with the addition of the increased expense of 
 transportation and hauling."'" 
 
 § 664. Duty of buyer v^^here seller fails to deliver. — In case of 
 default in delivery by the vendor, the buyer generally is not justified 
 in idly doing nothing. It is his duty "to use all reasonable efforts to 
 supply himself elsewhere." If he fails to do' this, the vendor may set 
 up such failure in mitigation of damages.'" 
 
 § 665. General American rule as to damages.'^ — ^The general rule 
 is that the damages must be such as "flow directly and naturally from 
 the breach of contract * * * and that they must be, not the remote, 
 but the proximate consequence of such breach and must not be specula- 
 tive or contingent."'* 
 
 § 666. Nominal damages. — "If the buyer is unable to prove the 
 existence of any actual damages resulting from the non-delivery, he 
 will, nevertheless, be entitled to recovery of the nominal damages, on 
 the general principle that every breach of contract imports some dam- 
 age in law."" 
 
 § 667. Conversion. — If the purchaser be not in default and the 
 vendor refuses to deliver, the buyer may "maintain an action in trover 
 for damages" for the vendor's conversion, "as well as an action on the 
 
 »si89 N. Y. 122, 81 N. E. 763. 
 
 »*See §§ I7S3-I7S4> on Measures of damages. 
 
 »5Benianiin on Sales, 7th ed., sec. 882a; Bartlett v. Blanchard, 79 Mass. 429- 
 
 '"Dean's American Note to Benjamin on Sales, 7th ed., p. 953. 
 
 "See § loiS, Measure of damages. 
 
 '^Benjamin on Sales, 7th ed., sec. 882. 
 
 "Benjamin on Sales, 7th ed., sec. 879. 
 
 458 
 
RIGHTS AND REMEDIES OF BUYER § 668 
 
 contract." The buyer in such case "cannot recover greater damages by 
 thus suing in tort than by suing on the contract."^"" 
 
 § 668. Demand and tender as condition precedent. — "If the con- 
 tract which has been broken provided for the delivery of the goods to 
 the buyer on request, it is a condition precedent to the buyer's right 
 of action that he should make this request either personally or by letter, 
 unless there has been a waiver of compliance with this condition."^ 
 
 "Under ordinary circumstances he should tender the whole price 
 to the vendor in order to entitle himself to any portion of the goods, 
 but he cannot, by tendering a part of the price, claim to take a cor- 
 responding portion of the goods. But if credit be given expressly or 
 impliedly, as if a bill of exchange or promissory note be taken in pay- 
 ment by the vendor, he is bound to deliver up the goods immediately 
 upon application by the vendee."" 
 
 B. Where the Property has Passed to the Buyer 
 
 669. Right of action or rescission. 
 
 670. Evidence to warrant rescission. 
 
 671. Buyer's election to rescind or claim damages for fraud. 
 
 672. Fraud as recoupment. 
 
 673. Rejection and rescission — misstatements of age of car. 
 
 674. Minor's right to rescind. 
 
 675. Car worthless for special purpose. 
 
 676. Right to rescind purchase of accessories. 
 
 677. Evidence of return of car. 
 
 678. Recovery of purchase price. 
 
 679. Returning in damaged condition. 
 
 680. Fraud not essential. 
 
 681. Commissions not deducted from damages. 
 
 682. Laches by buyer. 
 
 683. Waiver of right to rescind by authorizing sale. 
 
 684. Duty to inspect promptly. 
 
 685. Time allowed for inspection and testing. 
 
 686. Subsequently discovered imperfections. 
 
 687. Rescission waived by user. 
 
 688. User while trying to put car in condition. 
 
 689. Allowing seller to work on car is not a waiver of right to rescind. 
 6go. Ratification — what amounts to a ratification. 
 
 691. No rescission as against innocent purchasers for value. 
 
 ""Benjamin on Sales, 7th ed., sec. 886; Story on Sales, 4th ed., sees. 430, 
 434 440, 449- 
 ^Benjamin on Sales, 7th ed., sec. 878. 
 "Story on Sales, 4th ed., sec, 225. 
 
 459 
 
§ 669 SALES 
 
 § 669. Right of action or rescission. — This subject was considered 
 in the chapter on Manufacturers.^ Supplementing what was then said, 
 may be noted further observations by Mr. Benjamin* on the same sub- 
 ject, as follows : 
 
 "After the property in the specific chattel has passed to the 
 buyer, it may happen that he discovers the goods bought to 
 be different in kind or quality from that which he had a right 
 to expect according to the agreement. In such case it is neces- 
 sary to distinguish whether the defect be one in the perform- 
 ance of a condition or of a warranty. In the former case he 
 may refuse to accept the goods and reject the contract, but not 
 in the latter. 
 
 "The reason for this difference is, that in the one case the con- 
 tract depends on the performance of the condition precedent 
 incumbent on the vendor, while in the other the principal con- 
 tract has been performed, and the breach is only of the collateral 
 understanding of warranty. 
 
 "If the goods sold are not of the description which the buyer 
 agreed to purchase, he may reject them. * * * And it is nec- 
 essary again to point out that the term 'Warranty' in English 
 law is frequently misleading, and that when used in relation 
 to executory contracts it imports a condition precedent, a non- 
 compliance with which entitles the buyer to reject the goods."^ 
 
 The American view seems to be that whether it be a "condition" or 
 an "implied warranty," 
 
 "the right of return is well established, if exercised in a rea- 
 sonable time and the other party can be placed in statu quo. 
 Hoadley v. House, 32 Vt. 179." The reader "will remember 
 the difference as to a right of return for defective quality, be- 
 tween sales of some existing, known and identified chattel, and 
 sales of some non-existing or not ascertained goods, which by 
 the contract, the vendor is to furnish of a certain specified qual- 
 ity. Since it is only in the latter case that the buyer has the 
 right to return for defects in quality. See Pope v. AUis, 115 
 U. S. 363, and in this case, if the vendor will not receive the 
 goods back, the buyer may resell them at auction on the ven- 
 dor's account and is responsible only for the proceeds of such 
 sale."« 
 
 ^See § 602, Manufacturers. 
 
 *0n Sales, 7th ed., sees. 887, 888. 
 
 ^Benjamin on Sales, 7th ed., sees. 887, 888. 
 
 ^Dean's American Note to Benjamin on Sales, 7th ed., p. 958, and cases cited. 
 
 460 
 
EIGHTS AND REMEDIES OF BUYER § 6/0 
 
 "If the breach be of warranty of title — 
 
 "The buyer may either bring his action for the return of the 
 price on the ground of failure of the consideration for which 
 the price was paid, or he may sue in damages for breach of the 
 vendor's promise, as in all other cases of breach of contract."'' 
 
 Where the goods delivered to the buyer are inferior in quality to 
 that which was warranted by the vendor, the buyer has the choice of 
 four remedies:' (i) "He may refuse to accept the goods and return 
 them." It is sufficient in this respect "for the buyer without returning 
 the goods, to give notice to the seller that he rejects them, and that they 
 remain at the seller's risk." (2) He may accept the goods and "bring 
 a cross-action for the breach of the warranty" ; (3) "If he has not paid 
 the price, he may plead the breach of warranty in reduction of the dam- 
 ages in an action brought by the vendor for the price." (4) By virtue 
 of statutes in the various states, the buyer "may set up by way of 
 counter-claim, a claim for damages in the vendor's action for the pur- 
 chase-price."' 
 
 In Perley v. Balch" it was held that a breach of warranty may be 
 relied upon by the purchaser to reduce the damages when sued for the 
 price of the goods, and this is true, even though the suit be brought 
 upon a promissory note given by the purchaser. In June v. Falkin- 
 burg^^ Presiding Judge Bland said : 
 
 "When an article is sold on an expressed or implied warranty 
 the purchaser may, after discovering the defect, retain the article 
 and defeat a recovery of the purchase-price to the extent of the 
 difference between the value as represented and its real value." 
 
 § 670. Evidence to warrant rescission. — A contract assented to 
 by one party on the faith of material representations by the other 
 party, which turn out to be misrepresentations, "will be rescinded at 
 the option of the party injured, although the misrepresentations were 
 made neither fraudulently nor negligently. But the evidence under 
 
 'Benjamin on Sales, 7th ed., sees. 887, 888, 893. 
 
 sibid, sec. 884. 
 
 'Ibid, sec. 894. 
 
 i''40 Mass. 283. 
 
 "89 Mo. App. 563, 571. 
 
 461 
 
§ 671 SALES 
 
 such circumstances, to sustain a decree for rescission should be strong 
 and plain. A concurrence of minds as to one particular thing being 
 essential to a contract, it is admissible, therefore, for a party to show 
 that he was misled when he gave his assent by the misrepresentations 
 of the other party, and that what he assented to was, therefore, some- 
 thing different from that which the proposition on its face indicates. 
 It is true that the terms of a contract cannot be varied by parol. But 
 it is competent for a party to show by parol that no contract was made. 
 It is a petifio principii to say that a contract which parol cannot vary, 
 exists between the parties when, whether a contract exists is the very 
 question at issue."^^ 
 
 § 671. Buyer's election to rescind or claim damages for fraud. — 
 Where the buyer of an automobile discovers fraud in the representa- 
 tions made to him as to its condition he has his election either to rescind 
 the contract or to stand on the contract and recover damages for the 
 tort." 
 
 § 672. Fraud as recoupment.^-A buyer of a car who is sued on 
 a note given for the purchase-price may claim damages for misrepre- 
 sentation as a matter of recoupment and not of counterclaim.^* 
 
 § 673. Rejection and rescission — ^misstatements of age of car. 
 — In Pitcher v. Webber^" the facts were that defendant bought an au- 
 tomobile on the representation that it was a 1904 model in good con- 
 dition. It turned out to be a 1903 model in bad order. Defendant 
 offered to run the car, but plaintiff refused to accept it, so defendant 
 put it in storage. The court held (i) That the jury were justified in 
 finding that defendant had a right to rescind for misrepresentation; 
 (2) When a vendee offers to return and plaintiff refuses to accept the 
 return, plaintiff waives his right to have the return made at the place 
 of the original delivery. 
 
 § 674. Minor's right to rescind. — An infant may rescind a pur- 
 chase of an automobile and may through an attorney notify the seller 
 of the rescission and offer to return the automobile.*' 
 
 1^1 Wharton on Contracts, sec. 214. 
 
 isMorbrose Ins. Co. v. Flick, 187 Mo. App. 528, 174 S. W. 189. 
 
 i*Morbrose Ins. Co. v. Flick, 187 Mo. App. 528, 174 S. W. 189. 
 
 iisiD.i Me. loi, 68 Atl. 593. 
 
 i»Smoot V. Ryan, 187 Ala. 396, 6s So. 828. 
 
 462 
 
RIGHTS AND REMEDIES OP BUYER § 675 
 
 Where a minor buys an automobile on the instalment plan he may 
 on reaching his majority disaffirm his contract and recover what he has 
 paid on returning the car and depreciation in value of the property re- 
 turned cannot be shown to defeat or reduce recovery and even though 
 the value of the use may exceed the payment made upon it.^^ 
 
 A minor, a grocery clerk, who pays his whole fortune, $200 in part 
 payment for a $1,000 automobile which he returns after a few days, has 
 made an improvident contract and can have it cancelled and his money 
 returned.^* 
 
 One very troublesome question is whether the infant is chargeable 
 with the loss in value through wear and tear of the car while in his 
 possession. This question does not seem to have arisen in motor ve- 
 hicle cases except as in the cases cited above. In a very humane opin- 
 ion the Supreme Court of Alabama has recently refused to allow an 
 infant on coming of age to recover instalments he had paid under a 
 "lease" contract. The opposite rule would lead to the gravest injus- 
 tice and fraud.^" 
 
 The Massachusetts court has however gone very far in protecting 
 the minor in breaches of contract and deceit as to his age.^" 
 
 The question is of vital importance especially to motorcycle dealers 
 selling to young men on the instalment plan. The only safe course to 
 pursue is to take no contract or make no sale to a minor, but to have all 
 dealings with his parent or guardian. Where there is any question as 
 to the age of a custorrier he should be required to make affidavit. This 
 is some protection as subjecting the minor to a charge of perjury if 
 he then makes a false statement. 
 
 § 675. Car virorthless for special purpose. — If an automobile is 
 worthless for the purposes for which it was known by the seller to 
 have been intended and the buyer as soon as he discovers this fact 
 promptly notifies the seller and tenders back the machine he is entitled 
 to rescind the contract and recover the purchase-money paid for it.^^ 
 
 ^'Reynolds v. Garber-Buick Co., 183 Mich. 157, 149 N. W. 983. L. R. A. 191S 
 C. 362. 
 i^Klaus V. Thompson Auto Co., 131 Minn. 10, 154 N. W. 508. 
 I'Edgewood Highlands Land Co. v. McFerren, Ala. 63 So. 157, 159. 
 2»SIayton v. Barry, 17S Mass. 513, 56 N. E. 574. 
 2iHalff Co. V. Jones, Tex. Civ. App. 169 S. W. 906. 
 
 463 
 
§ 676 SAI,ES 
 
 § 676. Right to rescind purchase of accessories. — ^Where one 
 orders accessories on the faith of a contract which the seller repudiates 
 the buyer is under no obligation to accept them.^^ 
 
 § 677. Evidence of return of car. — A return of a machine may 
 be shown where the buyer takes it to the seller's garage and he promises 
 he will fix the machine and the buyer tells him in a day or two that he 
 had surrendered it and would have nothing more to do with it.^' 
 
 It is a sufficient tender for rescission to return the car to a garage 
 and give the seller a written order for it even though it is then dis- 
 mantled where the dismantling is done with the sanction of the seller.^* 
 
 Rescission may be ordered where the buyer offers to return the car 
 and the seller refuses to take it and it lies in the buyer's bacn unused 
 and uncalled for.^' 
 
 A mere statement in a letter that the buyer will not accept a car in his 
 possession is insufficient as ground for a rescission but there must be a 
 tender or offer to tender the car.^°* 
 
 § 678. Recovery of purchase-price. — Beecroft v. Van Shaick^° 
 was a suit to recover the purchase-price. Plaintiff made repeated 
 unsuccessful efforts to remedy the defects, and then sent the automo- 
 bile to a garage, "and wrote the defendant that he returned it under the 
 terms of the agreement." The court held that under the circum- 
 stances, the buyer could recover the price paid. 
 
 § 679. Returning in damaged condition. — Under some circum- 
 stances a party can rescind a sale, even though returning the automo- 
 bile in a damaged condition. The court held that the case cited was 
 one of that character.^^ 
 
 § 680. Fraud not essential. — A purchaser need not prove fraud 
 in the seller before rescinding a sale of an automobile.^' 
 
 The fact that representations made by an automobile salesman were 
 made in good faith and with every reasonable ground to believe that 
 
 22Cook V. Story. Wash. 154 Pac. 147, 1916. 
 
 23E. M. F. Co. V. Davis, 146 Ky. 231, 142 S. W. 39i- 
 
 2*Klock V. Newbury, 63 Wash., 153, 114 Pac, 1032. 
 
 25Pitcher V. Webber, 103 Me. loi, 68 Atl. 593. 
 
 26aCollins v. Skillings (Mass. 1916), 112 N. E. 938. 
 
 28104 N. Y. Supp. 458. 
 
 27Pitcher v. Webber, 103 Me., loi. 
 
 28Klock V. Newbury, 63 Wash. 153, 114 Pac. 1032. 
 
 464 
 
RIGHTS AND REMEDIES O? BUYER § 68l 
 
 they were true when made is no defense in an action for rescission 
 when they were in fact false and were relied on by the purchaser.''' 
 
 § 68i. Commissions not deducted from damages. — Where a sale 
 is made through a dealer whether the defendant actually received any 
 of the proceeds is immaterial. The buyer on rescission is entitled to 
 recover the whole amount paid though the defendant had to pay part 
 of this sum in commissions.^" 
 
 § 682. Laches by buyer. — Failure to return the goods or rescind 
 the contract within a reasonable time, is technically called "laches," 
 and laches is briefly defined as "negligence or omission to assert a 
 right."'^ 
 
 Such failure in a case where the vendee would have the right to 
 rescind amounts to a waiver of the right. In Cunningham v. Wana- 
 maker'^ the court held that it was incumbent upon plaintiff to exercise 
 the right of rescission promptly. In Buick Motor Co. v. Reid Mfg. 
 under an implied warranty, to inspect it within a reasonable time after 
 Co.^^ the court held that failure to inspect, or acceptance after inspec- 
 tion, waives such defects as were discovered or discoverable by rea- 
 sonable inspection, though it does not waive latent defects.'* 
 
 § 683. Waiver of right to rescind by authorizing sale. — A direc- 
 tion by the buyer to the seller to sell the car he has refused to take 
 for his account may be regarded as an assumption of ownership and a 
 waiver of his right of rescission.'' 
 
 § 684. Duty to inspect promptly. — In Buick Motor Co. v. Reid 
 Mfg. Co.'" the court held that "it is the duty of the buyer of machinery 
 under an implied warranty, to inspect it within a reasonable time after 
 its receipt, and if defects are found constituting a breach of the implied 
 warranty, to refuse to accept it." 
 
 29Halff Co. V. Jones, Tex. Civ. App. 169 S. W. go6. 
 '"Halff Co. V. Jones, Tex. Civ. App. 169 S. W. 906. 
 siRing V. Lawless, 190 III. 520, 60 N. E. 881. 
 S2217 Pa. St. 497, 66 N. E. 748. 
 »=iSo Mich. 118. 
 
 '*To the same effect see Cedar Rapids Auto Co. v. Jeflfrey, Iowa, 139 Iowa 
 7, 116 N. W. 1054. 
 '^Cunningham v. Wanamaker, 217 Pa. St. 497. 
 S81S0 Mich. 118, 113 N. W. S9I. 
 
 465 
 30 
 
§ 685 SALES 
 
 In Cedar Rapids Auto. Co. v. Jeffrey'' plaintiff and defendant en- 
 tered into a contract of agency whereby defendant was to ship 1906 
 models of Rambler automobiles. Plaintiff contended that defendant 
 shipped cars of other styles. The court say : 
 
 "But assuming that plaintiff might on such grounds repu- 
 diate the contract, it was certainly its duty to make its objec- 
 tion and purpose to rescind, known promptly, upon receiving 
 notice that the representation or promise would not be fulfilled. 
 'This it did not do, but for sometime thereafter continued its 
 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 putting an end to the con- 
 tract until after this action was begun. Under such circum- 
 stances, it must be said as a matter of law, that the objection 
 was waived." 
 
 Where there is an express warranty that a car sold is in good con- 
 dition it is enough for the plaintiff to show that he had no actual 
 knowledge of the defective condition of the car and it is no defense to 
 show that he had an opportunity to examine it and failed to exercise 
 it.=« 
 
 § 685. Time allowed for inspection and testing. — While the ven- 
 dee is not permitted to delay the exercise of the right of rescission, he is 
 allowed a reasonable time for inspection and testing. In Boles v. 
 MerrilP' the court, by Mr. Justice Lathrop, speaking of the purchaser, 
 say he discovered the fraud at some time during the first week after 
 he took possession of the property. At the end of the week he notified 
 Kenerson, and demanded back the money paid and the note given by 
 him, and offered to return all the property. The latter refused to con- 
 sent to any rescinding of the contract. The plaintiff then tested fur- 
 ther, and carried on the business for two months, when he made an 
 absolute rescission and placed the property at the disposal of Merrill. 
 It does not appear that the property was not in as good condition at 
 this time as when the sale was made. Under the facts of the case, the 
 court were of opinion that there was no unwarrantable delay in rescind- 
 ing the sale. 
 
 8^139 Iowa 7, 116 N. W. 1054. 
 
 ssKlock V. Newbury, 63 Wash. 153, 114 Pac. 1033. 
 
 B»i73 Mass. 491, 494, S3 N. E. 894. Not a motor vehicle case. 
 
 466 
 
RIGHTS AND RI^MEDIDS OP BUYER § 686 
 
 In Pitcher v. Webber*" the court held that a vendor is not bound to 
 rescind upon the discovery of one imperfection or misrepresentation. 
 He is entitled to time for inquiries, inspection and tests. 
 
 § 686. Subsequenty discovered imperfections. — In Pitcher v. 
 Webber*^ the court held that a person may waive imperfections or mis- 
 representations when they are first discovered, and will be afterwards 
 entitled to rescind upon the discovery of others. The suggestion from 
 the vendor or his agent to make further trial, would also extend the 
 time of rescission. 
 
 Failure to tender an automobile for over thirty days after discovering 
 its defects is a waiver of the right of rescission.*^* 
 
 § 687. Rescission waived by user. — Where the plaintiff purchases 
 an automobile on a warranty and uses it for six months after he dis- 
 covers its defects he has abandoned his right to rescind his contract 
 and his only remedy is by suit for damages for breach of warranty.*^ 
 
 § 688. User while trying to put car in condition. — Where the 
 buyer relies on the seller to pick him out an automobile suitable for the 
 purpose and they deliver him one which fails to do the work required 
 he may rescind although he uses it two months during which time he 
 twice had experts from the company examine it and try to make it 
 work. He was simply giving it a fair trial.*' 
 
 A purchaser is not barred from rescinding a sale of a car by the fact 
 that he has made repairs to it in an effort to make it run where the re- 
 pairs did not make a material change in its condition so that it could 
 not be returned in the condition in which it was received.** 
 
 § 689. Allowing seller to work on car is not a waiver of right to 
 rescind. — There is no waiver of the buyer's right to rescind simply be- 
 cause he allows the seller to take the car and try to put it in condition to 
 operate properly.*" 
 
 *»I03 Me. loi, 68 Atl. 593. 
 
 *ii03 Me. loi, 68 Atl. 593. 
 
 *iaColIins V. Skillings (Mass. 1916), 112 N. E. 938. 
 
 *2White Automobile Co. v. Dorsey, 119 M<3. 251; 86 Atl. 617. 
 
 ^^International Harvester Co. v. Bean, 159 Ky. 842, 169 S. W. 549. 
 
 **Klock V. Newbury, 63 Wash. 153, 114 ac. 1032. To the same effect see Bee- 
 croft V. Van Shaick, 104 N. Y. Supp. 458, App. Term. 
 
 *°Pulton Bank v. Mathers, 161 Iowa 634, 143 N. W. 400; Klock v. Newberry, 
 63 Wash. 153, 114 Pac. 1032. 
 
 467 
 
§ 690 SAI^BS 
 
 Making the final payment after the car proved unsatisfactory and 
 while attempts were being made to make it run is not a waiver of the 
 right of rescission.*' 
 
 § 690. Ratification — ^what amounts to a ratification. — In Bush v. 
 Fourcher*' plaintiff sued on an open account which had run for several 
 years, including repairs not only to defendant's automobile, but to his 
 bicycle, which repairs were done with defendant's knowledge and con- 
 sent. Defendant alleged a counter-claim of $600 "for hire and dam- 
 ages to the automobile." The court held that a principal may ratify 
 even unauthorized acts, by acceptance as well as by "word or writing," 
 and this although "he expressly declares that he will not sanction the 
 unauthorized act." "Slight circumstances and small matters will some- 
 times suffice to raise the presumption of ratification," and "a ratifica- 
 tion once made cannot he revoked." 
 
 § 691. No rescission as against innocent purchasers for value. — 
 It is elementary that the contract cannot be rescinded after third per- 
 sons have acquired rights under it for value, even though the contract 
 were originally induced by fraud or misrepresentation, and this upon the 
 principle that such contract is not void ab initio, but only voidable. 
 "The result is. that when third persons have acquired rights in a trans- 
 action in good faith and for value, those rights are indefeasible. The 
 rule is also stated to be the application of the principle of evidence 'that 
 where one of the innocent parties must suffer from the fraud of a third, 
 the loss should fall on the one who enabled the third party to commit 
 the fraud.' "" 
 
 But where a purchaser pays a draft for an automobile before he has 
 an opportunity to inspect it and find it does not comply with specifica- 
 tions he can recover the amount paid from a bank which has taken an 
 assignment of the contract of purchase.*^ 
 
 Where an automobile salesman receives an order for a car and 
 transmits to the manufacturer his own order in his own name the cus- 
 tomer can sue not only the manufacturer but the dealer for an over- 
 payment.'"' 
 
 *6Dochtermann Van & Express Co. v. Fiss, Doerr & Carroll Horse Co., ISS 
 App. Div. 162. 140 N. Y. S. 72 (N. Y. Sup.). 
 
 "3 Ga. App. 43, 59 S- E. 459- 
 
 *8Wald's Pollock on Contracts, 3d ed., p. 716. 
 
 *'Munson v. De Tamble Motors Co., 88 Conn. 415; 91 Atl. 531; L. R. A. 
 191S A. 881 (note). 
 
 ""Sandruck v. Wilson, 117 Md. 624; 84 Atl. 54. 
 
 468 
 
CHAFER XXVIII. 
 
 SEIvUNG AGENTS AND AGENCIES. 
 
 § 692. Scope of chapter. 
 
 693. Rule of respondeat superior. 
 
 694. Contract void for lack of mutuality. 
 69s. Contract construed a bailment. 
 
 696. Not a conditional sale. 
 
 697. Contract for automobiles includes taxicabs, 
 
 698. Modification of contract. 
 
 699. Waiver of Contract. 
 
 700. In what state business done. 
 
 701. "Agent" defined. 
 
 702. Distinction between an agent and a servant. 
 
 703. "Broker" defined. 
 
 704. "Salesman" defined. 
 
 705. Agency described. 
 
 706. Personality of the agent is a factor. 
 
 707. Automobile agency defined. 
 
 708. The relation between the parties. 
 
 709. Agreement to give all time to agency.. 
 
 710. "General agents" and "'special agents,'' 
 
 711. Right to deposit. 
 
 712. Appointment. 
 
 713. Private instructions. 
 
 714. Scope of agent's authority. 
 
 715. Ratification or confirmation. 
 
 716. Agency how proven. 
 
 717. Duty of agent. 
 
 718. Degree of care. 
 
 719. Negligence of agents. 
 
 720. Usage. 
 
 721. Responsibility of principal for misconduct of his agent. 
 
 722. Collusive contract. 
 
 723. Responsibility of agent. 
 
 724. Liability of agent in case of torts. 
 
 725. Power of agents to warrant. 
 
 726. Circulars of manufacturer as authority to agent to warrant. 
 
 727. Admissions of general agents. 
 
 728. Agent's statements. 
 
 729. "Dealer's talk" or seller's talk. 
 
 730. Agent's power to delegate authority. 
 
 469 
 
§ 692 SELLING AGENTS AND AGENCIES 
 
 731. Payment to an agent. 
 
 732. Notice to an agent. 
 
 733. Compensation of an agent. 
 
 734. Right to commissions as between general and special agent where cars 
 
 not delivered. 
 735- When commission earned. 
 
 736. Exclusive territory. 
 
 737. Validity of agreement for exclusive territory. 
 
 738. Revocation of authority. 
 
 739. Partnership of agent. 
 
 § 692. Scope of chapter. — It is not within the scope of this work 
 to enter in any considerable degree, into the general subject of the law 
 of agency. The effort is to present only an outline of those features 
 which are apt to appear in cases wherein motor vehicles are involved. 
 In so far as are concerned representations, warranty and conditions in 
 statements by agents and brokers, the reader's attention is drawn to 
 the consideration of this subject presented in the chapter on "Sales" 
 and that on "Manufacturers." For the purpose of presenting the law 
 on the subject of agency in the briefest and clearest form, recourse is 
 had to the text of standard authors whose writings are universally 
 accepted as sound expositions of its principles. 
 
 § 693. Rule of respondeat superior. — This doctrine of the law 
 applies in connection with the class of agents the subject of this 
 chapter, as in other cases where the relation is that of employer and 
 employe.^ 
 
 § 694. Contract void for lack of mutuality. — A selling contract 
 which required the agent to order at least fifty machines a year but did 
 not oblige the manufacturer to sell any machines and left him the 
 right to cancel the contract at any time is unenforcable for lack of 
 mutuality.^ 
 
 § 695. — Contract construed a bailment.— A contract between the 
 manufacturer of tires and a retail dealer was construed as one of 
 bailment and agency where the retailer is bound to furnish daily reports 
 of tires sold, that the manufacturer must approve all adjustments 
 
 iSee Chap. XXXI. 
 
 2Velie Motor Car Co. v. Kopmeier Motor Car Co., 194 Fed. 324, 114 C. C. 
 A. 284, 7th Cir. 
 
 470 
 
SELLING AGBNTS AND AGENCIES § 696 
 
 made on defective tires notwithstanding a clause that the retailer is 
 to pay for all goods sold monthly.' 
 
 A mere provision in a selling contract with an agent that the title 
 to all parts shall remain with the manufacturer until paid for is not 
 sufficient to protect the manufacturer where the agent keeps the parts 
 not paid for and their proceeds mingled with other parts to the knowl- 
 edge of and without objection by the manufacturer.* 
 
 § 696. Not a conditional sale. — A contract creating an agency 
 for repair and sale of an automobile vesting title in the agent for sale 
 is not a contract of conditional sale which must be recorded.' 
 
 § 697. Contract for automobiles includes taxicabs. — A con- 
 tract between a manufacturer and an agent for the sale of automobiles 
 includes taxicabs where the manufacturer was at the date of the con- 
 tract experimenting with taxicabs although it was not then selling 
 them." 
 
 § 698. Modification of contract. — In a sales agreement the one 
 party will not be obliged to carry out the terms of a modification of 
 the original contract which the other refuses to accede to.' 
 
 § 699. Waiver of contract. — Whether a contract of sale has been 
 waived by both parties is a question for the jury.* 
 
 In an action for breach of a contract constituting the plaintiff the 
 agent of the defendant for sale of automobiles, the plaintiff's failure to 
 pay for them is no defense where the question was whether the con- 
 tract had been waived." 
 
 § 700. In what state business done. — Where selling agents make 
 sales to customers in their own names under a selling contract with the 
 manufacturers under which the agent is given a cerain restricted terri- 
 tory the business is taxable as intrastate business in the state where 
 the agent and the customer both are. It is not interstate business. The 
 manufacturer in another state is not the undisclosed principal of the 
 selling agent. The customer would have no remedy against it.^" 
 
 'Federal Rubber Co. v. King, 12 Ga. App. 261, 76 S. E. 1083. 
 
 *Flanders Motor Co. v. Reed, (C. C. A. First. Cir.), 220 Fed. 642. 
 
 'Ransom v. Wickstrom Co., 84 Wash. 419, 146 Pac. 1041. 
 
 *Wier V. American Locomotive Co., 215 Mass. 303; 102 N. E. 481. 
 
 ^Sandruck v. Wilson, 117 Md. 624; 84 Atl. 54. 
 
 sFrench v. Pullman Motor Car Co., 242 Pa. 136; 88 Atl. 876. 
 
 sFrench v. Pullman Motor Car Co., 242 Pa. 136; 88 Atl. 876. 
 
 ^"Banker Brothers Co. v, Pennsylvania, 222 U. S. 210, 32 Sup. Ct. Rep. 38. 
 
§ 701 SELlvING AGENTS AND AGENCIES 
 
 § 701. "Agent" defined. — Mr. Justice Hadley, in Wynegar v. 
 The State/^ thus defines the word "agent" : 
 
 "The term agent is one of wide significance. It is defined 
 to be 'one who acts for another by authority from him.' Web- 
 ster's Int. Diet., 'one who undertakes to transact some busi- 
 ness, or manage some affair for another, by authority and on 
 account of the latter and to render an account of it; i Am. & 
 Bng. Bncy. of Law (2d ed.), 938. The term agency may, 
 therefore, be said to apply to any one who by authority per- 
 forms an act for another." 
 
 § 702. Distinction between an agent and a servant. — In a 
 broad sense any person who works in a representative capacity, recog- 
 nizing some other person as a principal, is an "agent" or a "servant" 
 of the latter. But the law admits a distinction between the exact mean- 
 ing of the two expressions. This distinction in no sense impairs the 
 application of the doctrine respondeat superior to both classes of indi- 
 viduals. The principal is as much responsible for the acts or omis- 
 sions of his "agent" within the scope of his employment, as he is 
 for those of the "servant," which occur in his service. Mr. Justice 
 McKee, in People v. Treadwell,^^ thus distinguishes between the two 
 classes of employes: 
 
 "The words 'agent and servant' are not wholly synonymal; 
 both, however, reljite to voluntary action under employment, 
 and each expresses the idea of service. The service per form- 
 able by a servant for his employer may be inferior in degree 
 to work done by an agent for his principal. A servant is a 
 worker for another under an express or implied employment; 
 so also is an agent, only he works not only for, but in the place 
 of, his principal. In the sense of service,, an agent is the serv- 
 ant of his principal."" 
 
 § 703. "Broker" defined. — Story on Agency,^* defines "broker" 
 as follows: "The true definition of a broker seems to be, that he is 
 an agent employed to make bargains and contracts between other 
 persons in matters of trade, commerce or navigation, for a compen- 
 
 "IS7 Ind. 577, 579, 62 N. E. 38. 
 
 1269 Cal. 226, 236. 
 
 i^See Evans v. Dyke Automobile Co., 121 Mo. App. 266, roi S. W. 1 132. 
 
 i*9th ed., sec. 28. 
 
 472 
 
SELI-ING AGENTS AND AGENCIES § 7^4 
 
 sation commonly called brokerage. Or to use the brief but expressive 
 language of an eminent judge" (Lord Chief Justice Tindall) " 'a 
 broker is one who makes a bargain for another and receives a com- 
 mission for so doing.' Properly speaking, a broker is a mere negotiator 
 between other parties, and he never acts in his own name, but in the 
 name of those who employ him. Where he is employed to buy of 
 to sell goods, he is not intrusted with the custody or possession of them, 
 and is not authorized to buy or to sell them in his own name. He is 
 strictly, therefore, a middleman or intermediate negotiator between 
 the parties." 
 
 § 704. "Salesman" defined. — "One who sells anything — one whose 
 occupation is to sell goods or merchandise."^' 
 
 § 705. "Agency" described. — "Agency is a contract by which one 
 person, with greater or less discretionary powers undertakes to rep- 
 resent another in certain business relations."^" 
 
 § 706. Personality of the agent is a factor. — It follows from the 
 foregoing that the discretion is committed by the principal because 
 of some peculiar aptitude or special attribute on the part of the e^gent, 
 and that, therefore, the personal element enters largely into the rela- 
 tion." 
 
 § 707. Automobile agency defined. — In Fredericksen v. Loco- 
 mobile Co.,^* the court describe an automobile agency as follows : 
 
 "An agency, within the meaning of the automobile trade, 
 consists in giving to the agent the exclusive right to purchase" 
 (automobiles) "for cash from the manufacturers at a discount 
 from the liet price, and to retail them to consumers within spe- 
 cified territory at the full list price. In other words, no com- 
 mission, as such, is paid to an agent on the sale of a machine, 
 but he has the exclusive right to certain territory to purchase 
 on his own account for cash at a discount of 20 per cent, from 
 the retail or list price."^^ 
 
 ^'Webster Diet., Century Diet. 
 
 i^Wharton on Agency, sec. i. 
 
 ^'Wharton on Agency, sec. 28; Story on Agency, 9th ed., sec. 13; i Parsons 
 on Contracts, pth ed., pp. 88, 93; Wheaton v. Cadillac Auto Co., 143 Mich. 21, 
 to6 N. W. 399. 
 
 18111 N. W. Repr. 84s. 
 ^^9See Grout v. Moulton, 79 Vt. 122. 
 
 473 
 
§ 708 SEI.WNG AGENTS AND AGENCIES 
 
 § 708. The relation between the parties. — ^The relation between 
 the principal and his agent is one of contract, whereby the agent be- 
 comes "the instrument of the principal who acts by him," and the 
 principal "acquires the rights and incurs the obligations which are 
 the proper results" of the agent's acts, as much as though the acts 
 had been done by himself. The law identifies the agent with the prin- 
 cipal "although for some purposes and in some respects, the agent 
 incurs his own share of responsibility, or acquires his own rights by 
 the act which he performs as the act of another."^" 
 
 There is nothing inconsistent in a finding that a general agent had 
 a contract directly with customers and that a written contract between 
 a general and a local agent was in its effect an agreement to purchase 
 the same automobiles.'^ 
 
 A manufacturer is not liable on a contract signed by one who with- 
 out authority claimed to be its selling agent. Here the evidence showed 
 no ratification." 
 
 § 709. Agreement to give all time to agency. — Where a general 
 agent sued a local agent for failure to devote all his time to sale of 
 automobiles a finding for the plaintiff will be reversed where the 
 record shows it to have been based on mere conjecture. Evidence 
 that the defendant sold twenty-three machines before a certain date and 
 none afterwards is insufficient when explained by the fact that the 
 plaintiff failed to make prompt deUveries to customers.^' 
 
 § 710. "General agents" and "special agents." — "A general 
 agent"''* "is one authorized to transact all his principal's business or 
 all his business of some particular kind." A particular agent, some- 
 times called a special agent, is "one authorized to do one or two special 
 things. But it it not always easy to find a precise rule which determines 
 with certainty, between these two kinds of agency."^" "The importance 
 of the distinction between a general agent and a special or particular 
 agent, lies in the rule that if a particular agent exceed his authority the 
 principal is not bound, but if a general agent exceed his authority the 
 
 201 Parsons on Contracts, 9th ed., p. 38. 
 2iBangs V. Farr, 209 Mass. 339; 9s N. E. 841. 
 22Short V. Metz Co., 165 Ky. 319, 176 S. W. 1144. 
 2SBangs v. Farr, 209 Mass. 339; 95 N. E. 841. 
 2*1 Parsons on Contracts, 9th ed., p. 39. 
 25Ibid. p. 40. 
 
 474 
 
SELUNG AGENTS AND AGENCIES § 7^^ 
 
 principal is bound, provided the agent acted within the ordinary and 
 usual scope of the business he was authorized to transact, and the party 
 dealing with the agent did not know that he exceeded his authority."^' 
 "The rule is, as to the public, that the authority of a general agent may 
 be regarded by them as measured by the usual extent of his general 
 employment. * * * By such authority, the principal does, as it were, 
 proclaim and publicly declare him to be his agent and must abide the 
 responsibility of so doing."^^ "But in the case of a special agent the 
 principal may well say to one who deals with an agent for a particular 
 purpose, 'it was your business first to ascertain for yourself the char- 
 acter and extent of his agency.'^' An illustration of this proposition 
 occurs in the case of Evans v. Dyke Auto Co.,^° where an automobile 
 was oflfered for delivery and was retained by the plaintiff at the request 
 of defendant's clerk. Subsequently, the clerk took the car from the 
 plaintiff's place and used it for his own purposes. The court held 
 that the clerk was acting outside of the scope of his authority and 
 therefore the principal was not liable. 
 
 § 711. Right to deposit. — Where a selling agent under a contract 
 agrees to purchase certain cars at specified times and makes a deposit 
 for that purpose and fails to sell any cars whatever during the period 
 of the contract he cannot recover his deposit.^" 
 
 § 712. Appointment. — Agents may be appointed by parol or by a 
 written instrument. An authority is sometimes presumed or in- 
 ferred by implication of law, on the ground that the principal has 
 justified the belief that he has given such authority. So the accept- 
 ance of the agency by the agent may be inferred from his acting 
 under it. Where the belief in the authority of an agent on the part 
 of third parties^ arises only "from previous action on his part as an 
 agent, the persons so treating with him must on their own responsi- 
 bility, ascertain the nature and extent of his previous employment." 
 
 "•Ibid. p. 41. 
 "Ibid. p. 42. 
 
 ^'See Story on Agency, 9th ed., sees. 17-19, 126. 
 2»2i Mcty App. 266. 
 
 '"Gile V. Interstate Motor Car Co., 27 N. D. 108; 145 N. W. 732; L. R. A. 
 191S B 109 (noie). 
 
 475 
 
§ 713 SELLING AGENTS AND AGENCIES 
 
 "The facts being undisputed, the question whether the alleged agent 
 had sufficient authority, is a question of law."'^ 
 
 § 713. Private instructions. — In all cases care must be exercised 
 "to distinguish between the authority given to the agent, and the 
 private instructions given to him as to his mode of executing that au^ 
 thority. For although where a written authority is known to exist, 
 or is, by the very nature of the transaction, presupposed, it is the 
 duty of persons dealing with the agent to make inquiries as to the 
 nature and extent of such authority and to examine it ; yet no such 
 duty exists to make inquiries as to any private letter of instructions 
 from the principal to the agent; for such instructions may well be 
 presumed to be of a secret and confidential nature, and not intended 
 to be divulged to third persons."^^ 
 
 § 714. Scope o£ agent's authority. — "In order to judge correctly 
 of the extent of an agent's authority, the distinction must be noticed 
 between those acts which are within his authority and those which 
 are only within an appearance of authority from which the principal 
 is not responsible. * * * An agent's authority is that which is given 
 by the declared terms of his appointment, * * * qt that with which 
 he is clothed by the character in which he has been held out to the 
 world, although not within the words of his commission. Whatever is 
 done under an authority thus manifested, is actually within the au- 
 thority, and the principal is bound for that reason."^' 
 
 § 715. Ratification or confirmation. — "As agency may be pre- 
 sumed from repeated acts of the agent, adopted and confirmed by 
 the principal, previously to the contract in which the question is raised, 
 so agency may be confirmed and estabhshed by a subsequent ratifica- 
 tion," and the principal "will be estopped from denying an original 
 authority or a ratification. And if a party does not disavow the 
 acts of his agent as soon as he can after they come to his knowledge, 
 he makes these acts his own. * * * The adoption of the agency in 
 part, adopts it in the whole. * * * i(- j^^y be stated as a general rule, 
 that no act operates a ratification unless, with a full knowledge of 
 
 SI I Parsons on Contracts, pth ed., p. 46, et seq. ; Story on Agency, 9th ed., 
 sec. 45. 
 
 '^Story on Agency, 9th ed., sec. 73. 
 
 33 1 Parsons on Contracts, 9th ed., p. 42, et seq. Evans v. Dyke Automobile 
 Co., 121 Mo. App. 266, loi S. W. 1 132. 
 
 476 
 
SELUNG AGENTS AND AGUNCIES § 7l6 
 
 the circumstances, it was intended so to operate, or unless it was such 
 an act as justifies third parties who are interested in the question, in 
 believing that it was a ratification. * * * The evidence of ratification 
 should be as clear as that required for an original authority. The 
 ratification of the tort of an agent does not in general relieve the 
 agent from liability; although by such ratification in tort as well 
 as in contract the liability is incurred by the principal. * * * ^^ 
 agent who has the power to appoint a sub-agent may ratify his" act 
 and thereby make it binding on the agent's principal."^* 
 
 § 716. Agency how proven. — At common law, agency may be 
 proven by parol or it may be shown by subsequent ratification, as well 
 as by antecedent delegation of authority.^' 
 
 When the relation of agency arises by implication, the extent of 
 the authority of the agent is to be ascertained "from numerous acts 
 done by the agent with the tacit consent or acquiescence of the prin- 
 cipal."^' 
 
 "Agency cannot be established by the agent's own declarations. 
 There must be proof aliunde of the agency, in order to make the 
 agent's declarations admissible."^' 
 
 § 717. Duty of Agent. — An agent is bound to regard the instruc- 
 tions of his principal "in every point, nor can he depart from them 
 without making himself responsible for the consequences. If he 
 has no instructions, or indistinct or partial instructions, his duty 
 will depend upon the intention and understanding of the parties. 
 This may be gathered from the circumstances of the case, and espe- 
 cially from the general custom and usage in relation to that kind of 
 business. But he cannot defend himself by showing a conformity 
 to usage if he has disobeyed positive instructions. * * * A principal 
 discharges his agent from responsibility for deviation from his in- 
 structions when he accepts the benefit of his act. He may reject the 
 transaction altogether" but he must do this "at once and decisively 
 
 8*1 Parsons on Contracts, 9th ed., p. 48, et seq. ; Story on Agency, 9th ed., 
 sees. 249, 252, et seq. 
 ^^Benjamin on Sales, 7th ed., sec. 265. 
 ^^Story on Agency, 9th ed., sec. 87. 
 "Wharton on Contracts, sec. 278; Story on Agency, gth ed., sec. 136 note. 
 
 477 
 
§ 7l8 SEI.UNG AGENTS AND AGENCIES 
 
 as soon as fully acquainted with it, for if he delays doing this, * * * 
 he accepts it and confirms the doings of the agent." " 
 
 § 718. Degree of care. — "An agent is bound to great diligence and 
 care for his principal, not the utmost possible, but all that a reason- 
 able man under similar circumstances would take of his affairs. And 
 where the instructions are not specific * * * he is to conform to es- 
 tablished usage. * * * f his usage may be generally proved by ordi- 
 nary means. * * *- An agent is bound to possess and exert the skill 
 and knowledge necessary for the proper performance of the duties 
 which he undertakes." "The responsibility of an agent, whether for 
 positive misconduct or for deviation from instructions, is not measured 
 by the extent of his commission or compensation, but by the loss 
 or injury which he may cause to his principal." "It is a general 
 rule that all profits or advantages made by an agent in the business 
 of his agency, beyond his due compensation, belong to his principal."" 
 
 § 719. Negligence of agents. — ^An agent is liable for his negli- 
 gence, "for example, if an agent, intrusted with the sale of goods, 
 should negligently allow them to remain in an improper place of 
 deposit, contrary to the usual habits of the business, and the goods 
 should be destroyed by fire, he would be responsible for the loss, 
 although the fire arose from an accidental cause ; for the loss, although 
 not in a strict sense immediately caused by his negligence, may fairly be 
 attributed to it."*" 
 
 On the other hand, "if the goods of the principal are deposited for 
 safety in a proper place, according to the usage of trade, and they 
 are there destroyed by fire or other casualty, the agent is discharged,"*^ 
 
 § 720. Usage. — "The usages of a particular trade or business, or 
 of a particular class of agents, are properly admissible," in evidence, 
 "not, indeed, for the purpose of enlarging the powers of the agents 
 employed therein, but for the purpose of interpreting those powers 
 which are actually given ; for the means ordinarily used to execute the 
 
 881 Parsons on Contracts, gth ed., p. 85, et seq. 
 
 ^'i Parsons on Contracts, pth ed., p. 90-96; Story on Agency, gth ed., sees. 
 144-216, also 182, et seq. 
 ^oStory on Agency, 9th ed., sec. 200. 
 *iStory on Agency, 9th ed., sec. 202. 
 
 478 
 
SEI^UNG AGENTS AND AGENCIES § 7^1 
 
 authority are included in the power, and may be resorted to by all 
 agents, and especially by commercial agents."*^ 
 
 In Garfield v. Peerless Motor Car Co.,*' the court held that testi- 
 mony as to usage is admissible not "to contradict what is provided for 
 by the contract, but to cover a point left uncovered by it." 
 
 § 721. Responsibility of principal for misconduct of his 
 agent.** — ^A principal is liable for the fraud or misconduct of his agent 
 to the extent that "on the one hand he cannot take any benefit from any 
 misrepresentation fraudulently made by his agent, * * * ^nd on 
 the other hand, if the party dealing with the agent suffer from such 
 fraud, the principal is bound to make him compensation for the in- 
 jury so sustained; and this although the principal be innocent, pro- 
 vided the agent acted in the matter as his agent, and distinctly within 
 tlie line of business intrusted to him."*° 
 
 § 722. Collusive contract. — "A principal is not liable for collusive 
 contracts fraudulently concocted by his agent with third parties."*' 
 
 § 723. Responsibility of agent. — "An agent is not personally Ua- 
 ble unless he transcends his agency or departs from ifs provisions, or 
 unless he expressly pledges his own liability, in which case he is lia- 
 ble although he describes himself as agent, or unless he conceals his 
 character of agent, or unless he so conducts himself as to render his 
 principal inaccessible or irresponsible, or unless he acts in bad faith." 
 "If one describes himself as agent for some unnamed principal, he is, 
 of course, liable if proved to be the real principal. So he is if he 
 signs as agent to a company which has no existence, or has no power 
 to make the contract. And one acting as agent is liable personally 
 if it be shown that he acts without authority. But it seems to be 
 law that an agent is not responsible to third parties for mere neglect 
 or omission in the discharge of his duty, for they must look to the 
 principal." "An agent who exceeds his authority, renders himself 
 liable to the whole extent of the contract although a part of it was 
 within his authority. It may, however, be said that where an agent 
 
 *2Story on Agency, 9th ed., sees. IT, i8s. 
 
 *889 Mass. 395. 
 
 **See Chap. XXXI, Principal and Agent. 
 
 *5i Parsons on Contracts, 9th ed., p. 76; Story on Agency, 9th ed., sec. 308. 
 
 *»i Wharton on Contracts, sec. 279. 
 
 479 
 
§ 724 SEXUNG AGENTS AND AGIINCISS 
 
 exceeds his authority, what he does within it is valid if that part be 
 distinctly severable from the remainder."*'' 
 
 § 724. Liability of agent in case of torts. — An agent is also 
 personally liable to third persons for his own misfeasances and positive 
 wrongs. In Story on Agency,** it is said : 
 
 "But he is not, in general (for there are exceptions), lia- 
 ble to third persons for his own nonfeasances or omission of 
 duty in the course of his employment. His liability, in these 
 latter cases, is solely to his principal, there being no privity 
 between him and such third persons, but the privity exists only 
 between him and his principal. And hence, the general maxim 
 as to all such negligences and omissions of duty is, in case of 
 private agency, respondeat superior. Whether the agent has 
 been guilty of negligence or not, is not ordinarily a question 
 of law, but of fact under all the circumstances." 
 
 § 725. Power of agents to warrant.*' — "The general rule is, as to 
 all contracts including sales, that the agent is authorized to do 
 whatever is usual to carry out the object of his agency, and it is a 
 question for the jury to determine what is usual. If, in the sale 
 of the goods confided to him, it is usual in the market to give a war- 
 ranty, the agent may give that warranty in order to effect a sale."^" 
 
 If a general agent in the course of business within the general 
 scope of his authority, and notwithstanding that he may have dis- 
 obeyed his instructions in so doing, shall warrant an article, the prin- 
 cipal would be bound by the warranty. While this rule applies in 
 cases of general agency it does not apply in cases of special agency. 
 The principle is that in the one instance the employer has held the 
 agent out to the public as having general authority, while in the 
 other instance no such public notice has been given. In such cases 
 the doctrine is that the buyer "must act at his own peril and is 
 
 «'i Parsons on Contracts, 9th ed., p. 67, et seq. ; Story on Agency, 9th ed., 
 sees. 261, 263, et seq. 
 *«gth ed., sec. 308. 
 
 *'See § S9S, et seq., Manufacturers, representations, warranty, etc 
 ""Benjamin on Sales, 7th ed., sec. 624. 
 
 480 
 
sh;i,i<ing agunts and agi!ncii;s § 726 
 
 bound to inquire into the nature and extent of the authority actually- 
 conferred" upon the special agent. Thus : 
 
 "If a person keeping a livery-stable, and having a horse to 
 sell, intrusts a servant with power to sell a horse, and directs 
 him not to warrant the horse; and the servant, nevertheless, 
 upon the sale, should warrant him, the master would be bound 
 by the warranty, because the servant was acting within the 
 general scope of his authority, and the public cannot be sup- 
 posed to be cognizant of any private conversation between the 
 master and the servant. But if the owner of a horse should 
 send the horse to a fair by a stranger, with express directions 
 not to warrant him, and the latter should, on the sale, contrary 
 to his orders, warrant him, the owner would not be bound by 
 the warranty."^^ 
 
 Mr. Parsons states it as his impression, that the better rule is, 
 "That an agent employed to sell without express power to warrant, 
 cannot give a warranty which shall bind the principal, unless the 
 sale is one which is usually attended with warranty, in which case 
 he may. * * * But even where usage would permit a warranty, if 
 the principal gives his agent express instructions not to warrant, and 
 the agent does warrant, * * * the better opinion is that the principal 
 is bound by such warranty, where the buyer was justified by the nature 
 of the case in believing that this authority was given, and had no 
 means of knowing the limitation of the authority of the agent." "The 
 usage of the trade or business is of great importance in determining 
 all these questions."'^ 
 
 The fact that the agent had authority to make the sale may render 
 his master liable for the statements made by him which were the 
 inducing cause of the sale.^* 
 
 § 726. Circulars o£ manufacturer as authority to agent to 
 warrant. — ^An agent for sale of automobiles may be found to have 
 authority to make warranties binding on his principal from the fact 
 that the circulars issued by the principal contained statements which 
 were the equivalents of the warranty .°* 
 
 ^^Story on Agency, pth ed, sees. 131, 132, 133, and 443, note ; Story on Sales, 
 4th ed., sec. 351. 
 "21 Parsons on Contracts, pth ed., p. 61, et seq. 
 8'Washburn v. Ranier Co., 130 N. Y. App. Div. 42, 114 N. Y. S. 424. 
 s^Levis V. Pope Motor Co., 202 N. Y. 402 ; 95 N. E. 815. 
 
 481 
 31 
 
§ 727 SELLING AGENTS AND AGENCIES 
 
 Under certain evidence the agent was held entitled to give a 
 warranty of tires binding on the manufacturer, relying on advertising 
 matter issued by the manufacturer/' 
 
 § 727. Admissions of general agents. — "A party who commits 
 the management of his whole business, or of a particular line of his 
 business, to an agent, is bound by the admissions of his agent as to 
 the entire business committed to him; and, when the agent is the 
 principal's general and continuous representative, it is not necessary for 
 the admission of such declarations that they should either have been 
 part of the res gestae, or should have been specially authorized.""' 
 
 In Garfield v. Peerless Motor Co.,°^ the court held that the fact 
 that one Kirkpatrick "was held out by the defendant to be its sales- 
 manager, was sufficient to make his admission as to the defendant's 
 liability to pay a commission, evidence against the defendant without 
 further evidence as to his duties as salesmanager." 
 
 In Joslyn v. Cadillac Automobile Co.,°' the court held that a state- 
 ment made by the salesmanager against the interest of the principal, 
 was competent but not conclusive evidence of the fact stated. 
 
 § 728. Agent's statements. — As to statements made by the agent, 
 Dr. Wharton says '^^ "An agent's statements during a negotiation bind a 
 principal as much as would his own statements. They are primary 
 evidence which it is not necessary to call the agent to verify. Nor is 
 it necessary that the representations should have been specifically au- 
 thorized by the principal. They may have been made contrary to his 
 directions, yet he will be bound by them if they were made within the 
 apparent range of the authority with which the agent was intrusted. 
 As to parties without knowledge of such restrictions, the agent binds 
 the principal." "An agent's false statement made within the range of 
 his duties, is imputable to his principal, though the statement was not 
 authorized by the principal, and though the agent may not have been 
 aware of the falsity. * * * ju ^ny view, a principal who adopts the 
 benefits of an agent's bargain, adopts the misrepresentation by which 
 
 «5Federal Rubber Co. v. King, 12 Ga. App. 261, 76 S. E. 104 . 
 681 Wharton on Contracts, sec. 274. 
 «Ti89 Mass. 395, 7S N. E. 695. 
 B8II7 Fed. 863, loi C. C. A. 77. 
 "sVol. I, on Contracts, sec. 269. 
 
 482 
 
SELLING AGENTS AND AGENCIES § 7^9 
 
 the bargain was produced.""" "A statement by an agent may be either 
 non-contractual or contractual. It is non-contractual when it is made 
 by the agent casually and not as a part of a negotiation, but as narrat- 
 ing an incident, or as explaining an alleged right. In such cases it is 
 put in evidence, not as part of a contract, but as explanatory of the 
 transaction to which it relates, in the same way and under the same 
 limitations as are admissions of the party himself as to the nature of 
 the transaction in question.""^ And in torts an agent's declarations 
 co-incident with the act charged as tortuous are imputable to the 
 principal as defining the principal's liability. But such statements, to 
 be admissible against the alleged principal, must be made by a general 
 agent, or, if by a special agent, must be shown to have been within the 
 range of such agent's authority, or as part of the res gestae, or to have 
 been ratified by the principal.""^ Nor * * * is a principal liable 
 in deceit for his agent's unauthorized independent fraudulent state- 
 ments in effecting a sale.""^ 
 
 § 729. "Dealers' talk," or "sellers' talk.""— Mr. Benjamin de- 
 scribes as follows, the limits within which the salesman must keep in 
 "talking up" the property he has for sale, an expression for which is 
 given by Mr. Justice Lathrop, in Boles v. Merrill,"^ as "dealers' talk" 
 of which the judge remarks "the law cannot take notice." 
 
 "The buyer is always anxious to buy as cheaply as he can, 
 and is sufficiently prone to find imaginary fault in order to 
 get a good bargain; and the vendor is equally at liberty to 
 praise his merchandise in order to enhance its value, if he 
 abstain from a fraudulent representation of facts, provided the 
 buyer have a full and fair opportunity of inspection, and no 
 means are used for hiding the defects. * * * But the use of 
 any device, by the vendor, to induce the buyer to omit inquiry 
 or examination of and into the defects of the thing sold, is as 
 much a fraud as an active concealment by the vendor himself .""^ 
 
 «»Ib. s. 270. 
 
 »^Ib. s. 271. 
 
 8=Ib. s. 272. 
 
 *'Ib. s. 279. Story on Agency, gth ed., sec. 134; Washburn v. Ranier Co., 130 
 N. Y. App. Div. 42, 114 N. Y. S. 424- 
 
 **See § 768, Opinions as representations. 
 
 65173 Mass. 491, 494, 53 N. E. 894- 
 
 66Benjamin on Sales, 7th Ed., Sec. 430; Boles v. Merrill, 173 Mass. 491, 494, 
 S3 N. E. 894. 
 
 483 
 
§ 73° SELLING AGENTS AND AGSNCIfiS 
 
 In Warren v. Walter Auto. Co.,°^ the court held the statement of 
 defendant's saleman, that the tires were as "good as new" to be merely 
 an expression of an opinion, and not a statement of the present exist- 
 ing fact.*' 
 
 Grout Bros. v. Moulton,^' was an action brought by the vendor 
 against the defendant to recover the purchase price of an automobile. 
 Defendant claimed that he bought the car on the representation that it 
 was a 1903 model, equipped with a certain kind of fusible plug, and 
 that the car he received was a 1902 model, not so equipped. Various 
 questions concerning representations by the agent were argued. The 
 court held that statements concerning the res need not be simultaneous 
 with the conclusion of the contract, but only that they should have 
 been made during the negotiations which led up thereto, have in- 
 fluenced the defendant in making the purchase, and entered into the 
 purchase as a part thereof, and as such would have binding effect 
 upon the parties, not falling within the scope of the phrase "dealers' 
 talk." 
 
 § 730. Agent's power to delegate authority. — The general 
 principle is based on the maxim "that a deputy cannot deputize" his 
 authority, from which it follows that an "agent has not thereby, a 
 right to make another person the representative of his principal. The 
 employment and trust are personal; they may rest on some ground 
 of personal preference and confidence and on the knowledge which 
 the principal has of his agent's ability and the belief he has of his 
 integrity ;" but the principal may confer upon the agent, if he chooses, 
 the power to delegate his authority or even to appoint a substitute. 
 This may be done by a written instrument signed by the principal, 
 expressly conferring the authority, or it may be done by implication, 
 for example : 
 
 "If a principal constitutes an agent to do a business, which 
 obviously and from its very nature, cannot be done by the 
 agent otherwise than through a substitute, or if there exists 
 in relation to that business, a known and established usage of 
 substitution, in either case the principal would be held to 
 have expected and have authorized such substitution. So, too, 
 
 e'99 N. Y. Supp. 396. 
 
 ssSee also Morley v. Consolidated Mfg. Co., 196 Mass. 257, 89 N. E. 993. 
 
 6879 Vt. 122, 64 Atl. 4S3. 
 
 484 
 
sh;i,i<ing agsnts and agencies § 731 
 
 where an agent without authority appoints a substitute, the 
 principal may either by words or acts so confirm or ratify 
 such substitution, as to give to it the same force and effect as 
 if it had been originally authorized." 
 
 A substitute, .appointed by an agent who has this power of sub- 
 stitution "becomes the agent of the original principal and may. bind 
 him by his acts, and is responsible to him as his agent, and may 
 look to him for compensation." "A substitute of an agent who had 
 no authority to appoint him, cannot be held as the agent of the 
 original principal, but is only the agent of the agent who employs 
 him, and who is according to law, his principal; and the person so 
 employed is bound only to his immediate employer, and can look only 
 to him for compensation."'" 
 
 § 731. Payment to an agent. — Payment properly made to an 
 agent, is of course, the same as if made to the vendor himself, but 
 it must be shown that the agent was duly authorized to receive the 
 payment.'^ 
 
 "Agents intrusted with the possession of bills to collect, are thereby 
 prima facie authorized to receive payment and give a valid dis- 
 charge even though they did not make the sale."'^ "Also payments to 
 agents are good where sanctioned by the usage of the business, or the 
 previous dealings between the parties, or where the principal, in any 
 way, holds it out that the agent is authorized to receive payment."'^ 
 
 § 732. Notice to an agent. — "A principal is affected by notice to 
 his agent respecting any matter distinctly within the scope of his 
 agency * * * f}^Q notice to the agent may be implied as well as 
 expressed." These statements concerning knowledge and notice, are 
 subject to the qualification that notice to the servant or an agent 
 "affects the principal only when given about the very thing that serv- 
 ant is employed to do. * * * On the other hand, knowledge 
 
 '"I Parsons on Contracts, pth ed., p. 88, et seq. ; Story on Agency, 9th ed., 
 sec. IS ; Wharton on Agency, sec. 28. 
 
 ^^Benjamin on Sales, 7th ed., 741. 
 
 '^See Kinsman v. Kershaw, 119 Mass. 140. 
 
 '^Dean's American Note to Benjamin on Sales, 7th ed., p. 777. 
 
 '*i Parsons on Contracts, 9th ed., p. 78, et seq.; Story on Agency, 9th ed., 
 sec. 140. 
 
 '=1 Parsons on Contracts, 9th ed., p. 97; Story on Agency, 9th ed., 323, 
 et seq. 
 
 485 
 
§ 733 SE]:,i:<iNG agents and agencies 
 
 possessed by a prinfipal affects a transaction, although the transaction 
 took place through an agent to whom the knowledge was not communi- 
 cated."^* 
 
 § 733- Compensation o£ an agent. — "If an agent employed for 
 any special purpose discharges his duty and does all he is required to 
 do, he is entitled to full compensation, although the principal declines 
 or refuses to take advantage of the agent's act, or even to adopt it. 
 Thus, if an agent employed to sell land, succeeds in finding for his 
 principal a buyer on the stipulated terms, but the principal refuses 
 to make the sale and rescinds the authority, the agent may have an 
 action for his services; and the measure of damages (which would 
 be a matter of law) would generally be his regular commission on the 
 sale."" 
 
 The agent under such- circumstances, may claim reimbursement 
 from the principal for the expenses previously incurred by him dur- 
 ing the course of his agency.'* But this does not extend beyond nec- 
 essary expenses. '^ An agent is also entitled to be idemnified from 
 claims of third persons arising from the execution of the agency.'^' 
 
 In Story on Sales,'® it is said, concerning the agent: 
 
 " He is entitled to receive a compensation for his services, 
 which is usually by a commission, determined in the absence 
 of any particular agreement, by the general usage in the par- 
 ticular business, in respect to which the agency is created; or 
 is, in the absence of such usage, determined by the worth of the 
 services performed. Extraordinary commissions are also al- 
 lowed in cases where the agent assumes the risk of sales made 
 by him, by guaranteeing payment which are called commissions 
 del credere, but before he can claim compensation he must 
 have performed all his duties without fraud, misconduct, or 
 gross negligence. He has also a right to be reimbursed for all 
 advances and expenses and losses legitimately incurred in the 
 course of the agency, and for damages immediately occasioned 
 by any wrongful act done by him, innocently, at the instance 
 of the principal, or in course of the agency. An agent has 
 also a particular lien on the property of his principal in his 
 
 781 Parsons on Contracts, pth ed., p. 97 note; Searing v. Butler, 69 111. S7S; 
 Maitland v. Martin, 86 Pa. 120. 
 T^Godman v. Meixsel, 65 Ind. 32. 
 
 TsGreen v. Goddard, 50 Mass. 212; Drummond v. Humphreys, 39 Me. 347. 
 '94th ed., sec. 72. 
 
 486 
 
SELLING AGENTS AND AGENCIE? § 734 
 
 hands, but he has not a general lien, unless by usage, or special 
 agreement." 
 
 § 734. Right to commissions as between general and special 
 agent where cars not delivered. — Where a local agent was to 
 receive a commission for sales of automobiles from a general agent 
 and the local agent received deposits for sales which were not con- 
 sumated owing to the failure of the manufacturer to deliver cars as 
 agreed and the customers recover their deposits from the general 
 agent the general agent can then recover from the local agent the 
 commissions he has received and kept. The failure of the manu- 
 facturer was not the fault of either and was something which both 
 may be found to have contemplated.*" 
 
 § 735- When commission earned. — An agent or a salesman on 
 commission, thereunto authorized, is entitled to his compensation when 
 he has found a purchaser who agrees to the terms of the sale, and who 
 is willing to perform his part thereof and this, even though the seller 
 at the last, refuses to make the sale.'^ 
 
 Many close questions arise between the commission agent and his 
 principal, growing out of the efforts of the agent to effect a sale, 
 where the sale is ultimately completed either by the principal him- 
 self, or through another agent. These questions are more apt to be 
 of fact than of law. In such cases, however, it must be shown that 
 the agent acted with the authority of the principal, and that his nego- 
 tiations in the procurement of the customer were within the scope of 
 the authority conferred upon him. That being shown, then an agent 
 who exerted himself to effect a sale is entitled to his commission, the 
 sale being afterwards completed, either by the principal himself, or 
 through another broker, of which sale the original agent was the 
 originating cause. 
 
 In Chapin v. Bridges,*^ Chief Justice Gray says on this subject: 
 
 "The evidence introduced at the trial tended to show that 
 the plaintiff (a broker) advertised a farm for sale, and * * * 
 took several persons to see the farm with a view to purchase, 
 
 sofiangs V. Farr, 209 Mass. 339, 95 N. E. 841. 
 
 siDexter v. Campbell, 137 Mass. 198; Witherell v. Murphy, 147 Mass. 417; 
 Garfield v. Peerless Motor Car Co., 189 Mass. 395, 75 N. E. 69s. 
 «2ii6 Mass. 105. 
 
 487 
 
§ 735 SEI<I<ING AGENTS AND AGENCIBS 
 
 and * * * talked upon the subject with others, and among 
 them with" (the individual who) "purchased the farm from the 
 defendant in person * * * The whole evidence was clearly 
 sufEcient to warrant the jury in finding that the plaintiff had 
 faithfully endeavored to sell the farm, and that the defendant 
 had made an agreement binding upon him." Judgment for 
 plaintiff affirmed. 
 
 Peckham v. Ashhurst,** was a case where a broker produced a 
 purchaser, able and willing to purchase on terms satisfactory to the 
 seller, although the sale was finally consummated through the instru- 
 mentality of another agent. The court say: 
 
 "The fact that the defendant concluded the negotiations 
 with the purchaser through another person, to whom he has 
 paid a commission, instead of making the sale himself, does 
 not take away the plaintiff's right to his commissions. The 
 minds of the seller and the purchaser met in the agreement for 
 the sale of the land for the latter sum as a result of a renewal 
 of the negotiations. As already stated, it is the production 
 of a purchaser, able and willing to purchase, and the consum- 
 mation of the agreement for the sale, on terms satisfactory to 
 the seller, which gives the right to the commission on the price 
 obtained."'* 
 
 In Fredericksen v. Locomobile Co.,*' plaintiff claimed that he 
 interested one Bradford in defendant's machine as a prospective pur- 
 chaser, and that defendants told him that they would "protect" him 
 in the event of that or any other sale which he might secure. Subse- 
 quently defendants established a regular agency in plaintiff's city. 
 Thereafter Bradford bought a car from defendants direct, and de- 
 fendants delivered it through their, then, local agent. Defendants 
 denied agency on the part of the plaintiff, asserting that he was in 
 the same position as any merchant, but admitted the agreement to 
 "protect" plaintiff'. The court held that "the question of agency and 
 
 83i8 R. I. 376> 378, 28 Atl. 337. 
 
 8«Singer & T. S. Co. v. Hutchinson, 83 111. App. 668, affirmed 184 111. 169, 56 
 N. E. 3S3; Henry v. Stewart, 85 111. App. 170, affirmed i8s 111. 448; Garfield 
 V. Peerless Motor Car Co., 118 Mass. 396, 75 N. E. 6gs; Fredericksen v. Loco- 
 mobile Co., Ill N. W. 84s, 84s Neb. 775. 
 
 8578 Neb. 775, iii N. W. 845. 
 
 488 
 
sb;i<i<ing agbnts and agencies § 736 
 
 the amount of the commission were facts for the jury. And there is 
 sufficient evidence to sustain the verdict." 
 
 § 736. Exclusive territory. — It is not unusual for manufacturers 
 to contract with agents, giving them the exclusive privilege of sale 
 of motor vehicles within specified territory. In such cases the prin- 
 cipal binds himself as well as his other agents, not to make sales within 
 the described territory, except by and through, or to the advantage of 
 the exclusive agency which has been created. In Garfield v. Peerless 
 Motor Car Co.,^" the facts were that the defendant had created an 
 exclusive agency for the city of Worcester and vicinity, and that, 
 during the continuance of the contract, it sold directly to one Orndorfif, 
 within that territory, an automobile without accounting to the exclu- 
 sive agent for the commission. On suit therefore, the defendant con- 
 tended that because the sale was made by "itself and not by the agent" 
 such act was in no derogation of the agent's rights. The court, by 
 Mr. Justice L,oring, say: 
 
 "In our opinion, a case where one is made an exclusive 
 agent for the sale of his principal's goods in a specified terri- 
 tory (unless there is something to control the phrase) is the 
 same as the case where the agent is given the sale, and ex- 
 clusive sale of the goods of the principal, as was the agreement 
 in Wiggin v. ConsoHdated Adjustible Shoe Co., 161 Mass. 597. 
 The right given here is exclusive of the principal as well as of 
 other agents. When it is said that the right is exclusive of the 
 principal it is not meant that the principal cannot sell. Of 
 course, he can sell, but if he does he violates the rights of his 
 agent under the contract. The defendant cites to the contrary. 
 Golden Gate Packing Co. v. Farmers' Union, 55 Cal. 606. But 
 after a full and careful consideration of that decision, we are 
 of opinion that, so far as it rests on this ground it should not 
 be followed." 
 
 Grout Bros. v. Moulton,'^ was an action brought by the plaintiff to 
 recover the purchase price of an automobile. Defendant contended 
 that as part of the consideration of the purchase he agreed to become 
 plaintiff's agent for a certain territory, plaintiff agreeing not to sell 
 any cars in the territory named except through defendant. Defendant 
 
 "189 Mass. 395, 403, 75 N. E. 695- 
 •^79 Vt. 122, 64 Atl. 453. 
 
 489 
 
§ 737 SEUvING AGBNTS AND AGENCIES 
 
 further claimed that plaintiff had sold one or more cars in his (plain- 
 tiff's) territory, and had not accounted to him for the commission. 
 The court held that the subsequent act of plaintiffs concerning the 
 sale of cars by them in this territory was a breach of the contract 
 with defendant, "and he is entitled to recover such damages as he 
 can prove." 
 
 In Cedar Rapids Auto. Co. v. Jeffrey,'* plaintiff and defendant 
 entered into a contract whereby defendant granted the plaintiff a 
 right to sell Rambler automobiles, in Cedar Rapids and other terri- 
 tory, defendant agreeing to refer to plaintiff "all inquiries received 
 from said territory for automobiles of its manufacture." Plaintiff 
 alleged that defendant sold automobiles within such territory and 
 refused to pay or account to plaintiff therefor. The court held that: 
 
 "The agreement does not purport, either by express terms 
 or by implication, to make the plaintiff the agent of the de- 
 fendant or to grant the plaintiff exclusive right to sell its cars 
 in the described territory. The extent of this undertaking was 
 to grant the plaintiff the right to sell cars in the company's 
 name, and to refer to plaintiff, all inquires from prospective 
 purchasers within that territory. It did in substance agree 
 that it was not to compete with the plaintiff therein, but it 
 did not agree to protect plaintiff against sales by other dealers 
 without its knowledge or authority. So far as appears, the 
 defendant did not make any sales in plaintiff's territory, and 
 did not fail to refer to it any inquiries received for Rambler 
 motors therein." 
 
 A contract giving a dealer the exclusive and sole right to sell 
 M. automobiles in a certain territory prohibits the automobile com- 
 pany from making any sales to persons residing in that territory who 
 go to it direct.'^ 
 
 The measure of damages for invasion of the plaintiff's exclusive 
 territory is the amount of commission the defendant made there and 
 the defendant is estopped by its wrongful conduct to say that the 
 plaintiff would not have made the sales."" 
 
 § 737- Validity of agreement for exclusive territory. — ^An agree- 
 ment giving one the exclusive right to sell automobiles of a certain 
 
 88139 Iowa 7, 116 N. W. 1054. 
 
 s'Nickels v. Prewritt Auto Co., Tex. Civ. App., 149 S. W. 1094. 
 soSparks v. Reliable Dayton Motor Car Co., 85 Kan. 29, 116 Pac. 363. 
 
 490 
 
SEI,I<ING AGENTS AND AGENCIES § 738 
 
 kind in a certain territory is not in conflict with the antitrust statute 
 in Texas. The agreement not to sell automobiles did not constitute 
 such a combination of capital skill or acts as is necessary to constitute a 
 trust as defined by the statute. This is not a conspiracy against trade 
 as it does not appear that either of the parties were engaged in buying 
 or selling automobiles or any other article of merchandise under the 
 statute and that they were corporations.*^ Such a contract is not 
 unilateral.*^ 
 
 § 738. Revocation of authority. — "It is a general principle that 
 an authority is always revocable ; the principal may at any time put an 
 end to the relation between himself and his agent by withdrawing the 
 authority unless the authority is coupled with an interest, or given 
 for a valuable consideration. Notice of revocation is not necessary 
 where the agent had only a special authority to do a special act, and 
 this authority is exhausted. But where third parties have dealt with 
 an agent clothed with general powers, and his acts have theretofore 
 bound his principal, * * * gm-h principal will continue to be bound 
 by the further acts of his agent, unless the third parties have knowl- 
 edge of the revocation, or unless he does what he can to make the 
 revocation as notorious and generally known to the world as was the 
 fact of the agency. * * * Usage will have great effect in determi- 
 ning whether such principal did all that was incumbent on him to make 
 his revocation notorious. * * * ^ revocation of authority may be 
 made either expressly or by any action in relation to the subject matter 
 which is manifestly irreconcilable with a continuance of the authority. 
 * * * The death of the principal operates per se, as a revocation 
 of the agency, but not if the agency is coupled with an interest vested 
 in the agency. * * * The authority is revoked by the death of the 
 agent."'^ 
 
 The manufacturer may also discharge a sales agent if he starts a 
 rival business."* 
 
 § 739- Partnership of agent. — If the agent is a member of a part- 
 nership, and the firm is dissolved by the retirement or death of the 
 
 siNickels v. Prewritt Auto Co., Tex. Civ. App., 149 S. W. 1094. 
 »2Meade v. Poffenberg, 153 N. Y. S. 182. 
 
 ''I Parsons on Contracts, 9th ed., p. 71, et seq. ; Story on Agency, 9th ed., 
 sec. 462, et seq., and 490 et seq. 
 9*Bilz V. Powell, so Colo. 482; 117 Pac. 344; 38 L. R. A. N. S. 847 (note). 
 
 491 
 
§ 739 SEI,LING AGENTS AND AGENCIES 
 
 agent, the surviving members do not possess any of the rights of 
 agency. In Wheaton v. Cadillac Auto. Co.,'^ plaintiff, as co-partner 
 with one Stewart, was doing business as the New Jersey Automobile 
 Company in the purchase and sale of automobiles. Negotiations were 
 opened to make the firm a selling agency for defendant. Before the 
 negotiations were completed, Stewart retird from the firm. The 
 court held that the main purpose being to establish a selling agency 
 the loss of the personal services of Stewart, worked a failur^ of the 
 consideration which entitled defendant to abandon the contract. 
 
 »=I43 Mich. 21, io6 N. W. 399- 
 
 492 
 
CHAPTER XXIX. 
 
 WARRANTIES. 
 
 § 740. Scope of chapter. 
 
 741. Generally. 
 
 742. Representations, warranty and conditions. 
 
 743. Condition precedent. 
 
 744. Condition subsequent. 
 
 745. Condition precedent and subsequent. 
 
 746. Waiver of condition precedent. 
 
 747. Modern tendency to treat, condition as warranty. 
 
 748. Kinds of warranty. 
 
 749. Construction of one year warranty. 
 
 750. "Usual guaranty." 
 
 751. Statements in catalog as warranty. 
 732. Damages for breach of two warranties. 
 
 753. Warranty limited to mechanical parts. 
 
 754. Failure of car to work. 
 
 755. Written warranty governs parol. 
 
 756. Implied warranty. 
 
 757. Sales by "sample." 
 
 758. Duty of the purchaser to inspect — waiver of defects. 
 
 759. Article ordered for a special purpose. 
 
 760. Contract to manufacture to the "satisfaction" of purchaser. 
 
 761. Failure to deliver on time. 
 
 762. Measure of damages in such cases. 
 
 763. Representations. 
 
 764. Price in connection with representations. 
 
 765. Used cars. 
 
 "jfA. Functions of the court and of the jury as to representations. 
 
 767- Representations must have been acted upon. 
 
 768. Opinions as representations. 
 
 769. Rule of caveat emptor in sales by manufacturers. 
 
 770. Fraud and deceit. 
 
 771. Remedies of buyer on breach of warranty. 
 
 772. Where customer had right to exchange. 
 
 773. Rescission of contract. 
 
 774. Remedying defects. 
 
 775. Damages from defective oil. 
 
 776. Measure of damages for breach of warranty. 
 ^^^. Measure of damages for breach as to price. 
 
 493 
 
§ 740 WARRANTIES 
 
 § 740. Scope of chapter. — ^This topic might with equal propriety 
 be discussed in the chapter on Sales. It is presented at this time 
 because warranties generally apply to the construction and fitness of an 
 article, and it is the manufacturer who, in the first instance disposes 
 of the vehicle and who has the best knowledge of its materials and 
 quality. The manufacturer speaks with certainty, and the middleman 
 relies upon assurances received from the manufacturer, in making 
 his representations to the public. 
 
 § 741. Generally. — The term "warranty" and the term "condi- 
 tion" are frequently confounded. They both involve representations. 
 It is not within the purpose of this work to enter into any extended 
 consideration of the distinctions drawn, nor are they always clearly 
 defined in the cases or in the text books. It may be said, in general, 
 that technically "warranty" goes to the quality of the article and 
 fitness for the purpose for which it was constructed, and "condition" 
 goes to the specifications concerning the particulars of the contract of 
 sale.^ 
 
 Technically, the distinction is of importance, because, broadly speak- 
 ing, in the event of a breach of warranty the buyer has the right to 
 rescind the contract; while in the case of a breach of condition the 
 purchaser may only have a counter-claim against the buyer for dim- 
 inution of the purchase price, or, if he has actually paid the same in 
 full, may maintain a suit for damages.^ 
 
 In Chanter v. Hopkins,' Lord Abinger, C. B., says : 
 
 "A good deal of confusion has arisen in many of the cases 
 on this subject, from the unfortunate use made of the word 
 'warranty.' Two things have been confounded together. A 
 warranty is an express or implied statement of something 
 which the party undertakes shall be part of a contract; and 
 though part of the contract yet collateral to the express ob- 
 ject of it. But in many of the cases, some of which have been 
 referred to, the circumstances of a party selling a particular 
 thing by its proper description, has been called a warranty ; and 
 the breach of such contract, a breach of warranty ; but it would 
 be better to distinguish such cases as a non-compUance with a 
 
 iSee Benjamin on Sales, 7* ed., Book IV, Parts I and II; Wald's Pollock on 
 Contracts, 3d ed., p. 652. 
 ^Benjamin on Sales, 7th ed., sec. 560. 
 84 Mees & Wels. 399, 404- 
 
 494 
 
WARRANTIES § 742 
 
 contract which a party has engaged to fulfill ; as, if a man offers 
 to buy peas of another, and he sends him beans, he does not 
 perform his contract; but that is not a warranty; there is no 
 warranty that he should sell him peas; the contract is to sell 
 peas, and if he sends him anything else in their stead, it is a 
 non-performance of it." 
 
 In some cases the discrimination is even more close, for example, in 
 the case of Mody v. Greyson,* it is said that there is a warranty that 
 the goods shall be merchantable besides the condition that they shall 
 answer the description. The general distinction may for present pur- 
 poses, be illustrated as follows: A. orders from B., a manufacturer, 
 an automobile which shall be adapted especially to hill-climbing. The 
 contract specifies incidentally that the machine is to be delivered within 
 a certain time or at a certain place.° The warranty would go to the 
 quality of the construction of the machine, and its ability to climb hills. ° 
 The condition would be as to the time or place of delivery. In 
 other words, B. warrants that the machine is well constructed, of 
 good material, and of sufficient power to successfully climb hills. The 
 failure to deliver at the specified time or place would be a breach of 
 a condition of the contract.'' 
 
 § 742. Representations, warranty and conditions. — At this point 
 it is appropriate to note the remarks of Mr. Benjamin' that represen- 
 tation, warranty, conditions and fraud, all "run so closely together 
 and are so frequently intertwined, that it is very difficult to treat each 
 seperately. * * * in applying the rules of construction, the circum- 
 stances under which the contract was made and the purpose for which 
 it was made, are to be taken into consideration. The same statement 
 may under certain circumstances be merely a description or represen- 
 tation, and under others, the most substantial stipulation in the con- 
 tract."^ 
 
 *4 L. R. Ex. 49- 
 
 ^See § 761, Failure to deliver on time. 
 *See § 759, "Article ordered for a special purpose." 
 
 Uoslyn V. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. yy; Berg v. 
 Rapid Motor Vehicle Co., 75 Atl. Repr. 933. 
 ^Benjamin on Sales, 7th ed., sec. 561. 
 'See § 761, Failure to deliver on time. 
 
 495 
 
§ 743 WARRANTlBS 
 
 § 743. Condition precedent. — A "condition precedent" is said to 
 occur r when the condition "is to happen, or may happen before the 
 promise by the other party is to be performed."" 
 
 § 744. Condition subsequent.^^ — ^A "condition subsequent" occurs 
 when the condition is to happen or may happen, after the act of the 
 other party has been performed.^^ 
 
 When "it is determined that a statement is really a substantial part 
 of the contract, then comes the nice and difficult question: — is it a 
 condition precedent, or is it an independent agreement ?" The question 
 can only be answered by looking into the circumstances of the agree- 
 ment with a view of ascertaining the intention of the parties.^' 
 
 § 745. Conditions precedent and subsequent. — ^An agreement to 
 supply automobiles, "conditions permitting" is not a condition precedent 
 but is a condition subsequent and the buyer is not obliged to prove that 
 the conditions did permit the seller to obtain them.^* 
 
 § 746. Waiver of condition precedent. — The necessity for per- 
 forming a condition precedent to the contract may be waived by the 
 party in whose favor it is stipulated, either expressly or by the impli- 
 cation resulting from his acts or conduct. 
 
 "This waiver is implied in all cases in which the party enti- 
 tled to exact performance, either hinders or impedes the other 
 party in fulfilling the condition, or incapacitates himself from 
 performing his own promise, or absolutely refuses performance, 
 so as to render it idle and useless for the other to fulfil the con- 
 dition. 
 
 No authority is needed, of course, for the proposition that the 
 party in whose favor the conditon has been imposed may ex- 
 pressly waive it. 
 
 The cases, however, are numerous to establish the proposi- 
 tion above stated in relation to the implied waiver."^' 
 
 § 747. Modern tendency, to treat condition as warranty. — 
 The tendency of the modern cases seems to be to increase the scope 
 
 lOBenjamin on Sales, 7th ed., sees. 562, 878. 
 
 "See § 637, Sales on trial. 
 
 i^Bouvier's Law Diet. (Rawles). 
 
 isBenjamin on Sales, 7th ed., sees. 561, 562, 563. 
 
 "Buick Motor Co. v. Thompson, 138 Ga. 282 ; 75 S. E. 354. 
 
 isBenjamin on Sales, 7th ed., sec. 566. 
 
 496 
 
WARRANTIES § 748 
 
 of meaning of the word "warranty," and to treat many breaches of 
 "condition" as breaches of warranty. The evident purpose of this 
 is to enlarge the purchaser's right of redress. In Dushane v. Benedict/' 
 the Supreme Court, by Mr. Justice Gray, in a very full consideration 
 of this subject, assert that it is now generally held that the sale of 
 goods by particular description may also be treated as a warranty that 
 they answer the description." 
 
 In Wolcott V. Mount, ^° Mr. Justice Depue says : 
 
 "The right to repudiate the purchase for the non-conformity 
 of the article delivered, to the description under which it was 
 sold, is universally conceded. That right is founded on the 
 engagement of the vendor, by such description, that the article 
 delivered shall correspond with the description. The obliga- 
 tion rests upon the contract. Substantially, the description is 
 warranted. It will comport with sound legal principles to treat 
 such engagements as conditions in order to afiford the purchaser 
 a more enlarged remedy, by rescission, than he would have on 
 a simple warranty; but when his situation has been changed 
 and the remedy, by repudition, has become impossible no rea- 
 son supported by principle can be adduced, why he should 
 not have upon his contract such redress as is practicable under 
 the circumstances. In that situation of affairs, the only avail- 
 able means of redress is by an action for damages. Whether 
 the action shall be technically considered an action on a war- 
 ranty, or an action for the non-performance of a contract, is 
 entirely immaterial." 
 
 § 748. Kinds of warranty. — Warranties are of two kinds, "express" 
 or "implied," and they may be either verbal or written. To create a 
 warranty no special words are necessary, the intention of the parties will 
 govern, and even where the alleged warranty is not written, it may be 
 left to the jury to say whether or not a warranty was intended; but a 
 warranty cannot be added by parol evidence to a written agreement, 
 although implied warranties are not inconsistent with a written con- 
 tract of sale. Express warranties are never extended by implication. 
 When the contract is reduced to writing and contains no warranty, the 
 
 "120 U. S. 630, 7 S. Ct, 696. 
 
 "See also Hastings v. Levering, 19 Mass. 214; Wilson v. lyawrence, 139 
 Mass. 318, I N. E. 278; Gould v. Stein, 149 Mass. 570, 22 N. E. 47; Edgar v. 
 Breck, 172 Mass. 581, 52 N. E. 1083. 
 "36 N. J. h. 262, 266. 
 
 497 
 32 
 
§ 749 WAKRANTIES 
 
 presumption is that none exists. A warranty will be implied only when 
 necessary to give efficacy to a transaction and to preveht such a failure 
 of consideration as could not have been within the party's contem- 
 plation. 
 
 Warranties are also divided into "general" warranties and "special" 
 warranties. A general warranty is said not to cover defects plain and 
 obvious to the purchaser, or of which he has had cognizance ; thus, if 
 an automobile is warranted perfect and should lack a driving-wheel. 
 A special warranty relates to some particular feature, and as to this the 
 manufacturer is responsible.^' 
 
 In Hawkins v. Pemberton,^" Mr. Justice Earl says : 
 
 "If the contract be in writing and it contains a clear warranty, 
 the vendor will not be permitted to say that he did not intend 
 what his language clearly and explicitly declares ; and so if it 
 be by parol, and the representation as to the character or quality 
 of the article sold be positive, not mere matter of opinion or judg- 
 ment, and the vendee understands it as a warranty, and he relies 
 upon it and is induced by it, the vendor is bound by the warranty, 
 no matter whether he intended it to be a warranty or not. He 
 is responsible for the language he uses, and cannot escape lia- 
 bility by claiming that he did not intend to convey the impression 
 that his language was calculated to produce upon the mind of 
 the vendee." 
 
 § 749. Construction of one year warranty. — ^A written guaranty 
 warranting an automobile for one year is interpreted by the court as 
 warranting the car when sold to be in a condition fit for use and that 
 it would run a year when used by the buyer in his business as contem- 
 plated by the parties with proper care and use if the plaintiffs made 
 the necessary repairs incident to such use.^^ 
 
 § 750. "Usual Guaranty." — Where an automobile is sold on the 
 "usual guaranty" the plaintiff must show what this usual guaranty is by 
 explicit evidence.^^ 
 
 i9i Parsons on Contracts, Book III, Chap. S. 9th ed., and cases cited. See 
 also Tewkesbury v. Bennett, 31 Iowa 83; June v. Falkinburg, 89 Mo. App. 563; 
 Hawkins v. Pemberton, 51 N. Y. 198. 
 
 2051 N. Y. 198, 202. 
 
 21 Jones V. Keefe, 159 Wis. 584, 150 N. W. 954. 
 
 498 
 
WARRANTIES § 751 
 
 § 751- Statements in catalog as warranty. — ^There is breach of 
 contract where the buyer bought an automobile to be "well made of 
 good material" where the contract calls for one as shown on a certain 
 page of the seller's catalogue which recommends the car for the par- 
 ticular purpose for which it was bought and which it failed to per- 
 form.^* 
 
 § 752. Damages for breach of two warranties. — Where suit is 
 brought for breach of two warranties damages may be recovered for 
 breach of either and the evidence need not prove loss on both.^* 
 
 § 753. Warranty limited to mechanical parts. — Ford Motor Co. 
 V. Osburn,^^ was an action brought to recover the purchase-price of an 
 automobile sold by plaintiff to the defendant, under an express contract 
 warranting goods furnished by the plaintiff, and providing that the 
 warranty is "limited to the replacement in our factory, of all parts 
 giving out under normal service, in consequence of defect of material or 
 of workmanship." Raintiff alleged that the express warranty was not 
 general, but related to mechanical parts only, and in such case, plaintiff 
 having purchased after inspection, there was no implied warranty. Mr. 
 Justice Adams says that the warranty contained in the contract was 
 not a general warranty, but one as to mechanical parts only. In such 
 case plaintiff having purchased after inspection, there was no implied 
 warranty. 
 
 § 754. Failure of car to work. — Evidence that the car sold never 
 made a satisfactory trip that on numerous occasions the company sent 
 men to examine it and try to make it work and that they failed to do so 
 is evidence of a breach of warranty.^" 
 
 § 755- Written warranty governs parol. — A written contract de- 
 scribing an automobile as of a certain horse power is conclusive and 
 renders inadmissible evidence of a parol warranty that it would de- 
 velop more.^^ 
 
 But where the buyer bought an automobile for a particular known 
 purpose and it proved inadequate, failing to climb the hills and carry 
 
 ''^Johnson v. Studebaker Corporation, 160 Ky. 509, 169 S. W. 992. 
 ^^International Harvester Co. v. Bean, 159 Ky. 842 ; 169 S. W. 549. 
 2*Federal Rubber Co. v. King, 12 Ga. App. 261 ; -j^ S. E. 104. 
 2'>i40 111. App. 633. 
 
 ^einternational Harvester Co. v. Porter, 161 Ky. 509, 169 S. W. 993. 
 "Colt V. A. F. Demarest & Co., 144 N. Y. S. 557- 
 
 499 
 
§ 75^ WARRANTIES 
 
 the loads as contemplated the buyer may return the machine and recover 
 the purchase-price although his contract contained a limited warranty 
 and the clause "This express warranty excludes all implied warranties." 
 The court remarks that this language, inserted in the middle of the 
 contract, could not have been understood by the buyer and refuses to 
 enforce it.°' 
 
 § 756. Implied warranty.^' — A general statement of the doctrine 
 of implied warranty between the manufacturer and his customer, is 
 that when he contracts to manufacture an article to be applied to a 
 particular purpose, so that the buyer necessarily trusts to the judgment 
 or skill of the manufacturer, "there is in that case, an implied warranty 
 that the article is reasonably fit for the purpose to which it is to be ap- 
 plied."'" 
 
 The whole doctrine is stated in Cunningham v. Hall,'^ which was a 
 case between the purchaser of a ship and the shipbuilder, to recover 
 damages for a breach of contract in constructing the vessel in such a 
 manner as to be "essentially defective, both in the manner and in the 
 materials of which she was constructed, to such an extent as to unfit her 
 for the purpose for which she was constructed." The contract called 
 for a vessel which was up to a certain standard. The customer, in giv- 
 ing the order, wrote the builder as follows : "As I know nothing about 
 ships and have no captain in view to superintend her, I have to depend 
 upon you to see that she is just right in all respects." The defendant, 
 in writing, accepted the order "agreeably to the specifications therein 
 named." Upon the question of implied warranties, Mr. Justice Mer- 
 rick, speaking for the court, says : 
 
 "The whole doctrine as to implied warranties in matters of 
 this kind, and the reason and limitations of it, are very briefly 
 but accurately stated by Tindal, C. J., in the case of Brown v. 
 Edgington, 2 Man. & Gr. 279, Eng. 'if a party purchases an 
 article upon his own judgment, he cannot afterwards hold the 
 vendor responsible, on the ground that the artide turnedout 
 to be unfit for the purpose for which it was required ; but if he 
 
 28International Harvester Co. v. Bean, 159 Ky. 842, 169 S. W. 549- Car for 
 special purpose, see § 7S8. 
 
 2sSee § 641, Sales — Caveat emptor. 
 
 soprench v. Vining, 102 Mass. 132, 135; Hight v. Bacon, 126 Mass. 10, 12; 
 Jones V. Just, L. R. 3 Q- B. 197. 
 
 3186 Mass. 268. 
 
 500 
 
WARRANTIES § 7S6 
 
 relies upon the judgment of the seller, and informs him of the 
 use to which the article is to be applied, it seems to me the trans- 
 action carries with it an implied warranty that the thing furnished 
 shall be fit and proper for the purpose for which it was designed ; 
 but if the vendee relies upon his own judgment" he cannot hold 
 the vendor responsible.' and thus where a person desires to 
 obtain an article for a particular purpose and, not being skilled 
 in respect to such article, applies to one professing to be ac- 
 quainted with the subject, or who by his occupation holds him- 
 self out to the world as understanding it, and the latter furnishes 
 what he alleges to be suitable for it, it is plainly to be inferred 
 that both parties understood the purchase to be made on the 
 judgment and. responsibility of the seller. Hoe v. Sanborn, 21 
 N. Y. Rep. 552. But if a purchaser, or a person who orders an 
 article of a manufacturer, judges solely for himself, and elects 
 in what manner or of what materials it shall be made, there can 
 be no such implication. If the thing ordered is afterward to be 
 manufactured, and he directs or assents that it shall be made in 
 a certain form, shape or style, or upon a designated pattern, and 
 it is made in conformity to such direction or assent, the manu- 
 facturer will not be responsible for any injurious consequences, 
 , if it wholly fails to subserve the purpose for which it was de- 
 signed, for his judgment and skill where not in such case relied 
 upon by the other party. But if an article or fabric in the partic- 
 ular line of his profession or business is ordered of, or contracted 
 for with a manufacturer, for a special and designated purpose, 
 and the parties agree that it shall be constructed of a certain 
 kind of materials, but the selection of the particular articles to 
 be used and the way and manner of using and adapting them to 
 the fabric, in the completion of the work, are left to the choice 
 and judgment of the latter, without any special stipulations 
 relative thereto, he will not in that case be liable for any loss or 
 damage which may result from the imperfection of, or natural 
 defects in, that kind of material ; but he will be held to have im- 
 pliedly warranted that he possesses the knowledge and skill re- 
 quisite to use them properly and in the most advantageous man- 
 ner, and that, in answering the order or in fulfilling his contract, 
 he will use all reasonable care and skill in the selection and use 
 of them. And if, through his failure in either of these respects, 
 the article of fabric furnished is unsuitable or insufficient for 
 the purpose for which it was supplied, he will be responsible in 
 damages therefor."^^ 
 
 »2See Grout Bros. v. Moulton, 79 Vt. 122, 64 Atl. 453- Italics by the author of 
 this book. 
 
 SOI 
 
I 757 WARRANTIES 
 
 In Buick Motor Co. v. Reid Mfg. Co.,^' the court held that "in the 
 absence of an express warranty, there is an implied warranty that the 
 machinery is of merchantable quality and reasonably fit for the use for 
 which it is intended."'* 
 
 Where there is an express warranty there can be no implied warranty 
 as well.*° 
 
 § 757. Sales by "sample." — "If the goods are sold by sample there 
 can be no examination of the goods, but there may be of the sample. 
 There is, therefore, in this country an implied warranty that the goods 
 correspond to the sample. * * * If they do correspond, and the 
 sample itself has a defect, even if this defect be unknown and not dis- 
 coverable by examination, there is no implied warranty against this de- 
 fect, and the seller is not responsible. If there be an express warranty, 
 an examination of samples is no waiver of the warranty ; nor is an in- 
 quiry or examination into the character or quality of the thing sold ; for 
 a man has a right to protect himself by such inquiry, and also by a war- 
 ranty. But if the purchaser is told that the sale must be on examination 
 of the goods, there is no warranty, although he chooses to make no 
 examination, and trusts to the sample."'" 
 
 In Bradford v. Manly ,'^ Chief Justice Parker, says : 
 
 "We are all decidedly of the opinion, that a sale by sample is 
 tantamount to an express warranty, that the sample is a true 
 representation of the kind." 
 
 In Buick Motor Co. v. Reid Mfg. Co.,'« plantiff was a manufacturer 
 of automobiles. Defendant gave orders for motors, similar to the 
 sample furnished by plaintiff on a preceding sample order. Defendant 
 claimed that the motors were not made according to the specifications 
 and representations of the plaintiff. Plaintiff claimed defendant did 
 
 33iso Mich. 118, 113 N. W. 591- 
 
 3*See also Joslyn v. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. IT, 
 Berg V. Rapid Motor Vehicle Co., 78 N. J. L. 724, 75 Atl. 933. 
 asFord Motor Co. v. Osburn, 140 111. App. 633. 
 
 36i Parsons on Contract, 9th ed., p. 621; i Wharton on Contracts, Sec. 225. 
 8713 Mass. 138, 144. 
 S8150 Mich. 118. 
 
 502 
 
WARRANTIES § 758 
 
 not make complaint within reasonable time. Mr. Justice Grant, who 
 wrote the opinion of the court, says : 
 
 "These oral statements the judge instructed the jury were con- 
 ditions precedent, and that while there was no express warranty, 
 there was an implied one that the engines and transmissions 
 should be merchantable in quality and reasonably fit for the use 
 for which they were intended. The court explained this prin- 
 ciple at great length to the jury, and left it to them as a question 
 of fact, to determine whether the motors and transmissions 
 furnished were in accordance with the contract as contained in 
 the order and the oral representations." 
 
 § 758. Duty of the purchaser to inspect — waiver of defects. — It is 
 
 the duty of the buyer of the machinery under an implied warranty, to 
 inspect it within a reasonable time after its receipt, and if defects are 
 found constituting a breach of the implied warranty, to refuse to accept 
 it; failure to inspect, or acceptance of the machinery after inspection, 
 waives such defects as were discovered or were discoverable by reason- 
 able inspection, though it does not waive latent defects.'' 
 
 § 759. Article ordered for a special purpose. — Mr. Parsons, on 
 this subject,*" says, "If a thing be ordered of a manufacturer for a 
 special purpose, and it be supplied and sold for that purpose, there is an 
 implied warranty that it is fit for that purpose." Continuing, the 
 learned author says: 
 
 "This principle has been carried very far. It must, however, 
 be limited to cases where a thing is ordered for a special pur- 
 pose, and not applied to those where a special thing is ordered, 
 although this be intended for a special purpose. For if the thing 
 is itself specifically selected and ordered, there the purchaser 
 takes upon himself the risk of its effecting its purpose. Nor 
 can he rely upon statements and assertions made by the maker in 
 circulars and advertisements concerning the article, as a warranty 
 that it will do what is stated. But where he orders a thing for a 
 special purpose, or to do a specific work, then he puts this risk 
 upon the person who is to supply the thing. If the thing were 
 not ordered and sold for a special purpose, evidence is admissible 
 
 s'Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W. SPi ; Joslyn v. 
 Cadillac Automobile Co., 177 Fed. Repr. 863; Ford Motor Co. v. Osburn, 140 
 111. App. 633. 
 
 *0Vol. I, 9th ed., p. 624. 
 
 503 
 
§ 7^0 WARRANTIES 
 
 to show that the buyer in fact bought it intending to apply it to 
 a special purpose, and found it unfit." 
 
 In Cunningham v. Hall,*^ quoted supra, Mr. Justice Merrick says : 
 
 "It is undoubtedly now a well settled rule, that if an article be 
 ordered of a manufacturer for an especial purpose or a particular 
 use, and he agrees to furnish it, and nothing is said by the parties 
 as to the materials of, or the manner in, which it shall be made, 
 there is an implied warranty on his part that it shall be fit for 
 that use. i Parsons on Con. 468 ; Witmore v. South Boston Iron 
 Co., 2 Allen 52. And such warranty will extend to latent as well 
 as to open defects. Thus it has been determined that in a con- 
 tract to build, sell and deliver a buggy wagon, at a fixed price and 
 in payment of a pre-existing debt, there was an implied war- 
 ranty against all secret and latent defects in the materials of 
 which it was constructed, although they could not be discovered 
 upon the most careful examination. Brown v. Sayles, 27 Verm. 
 227. So where there was a written contract for the sale of 'this 
 new barge now lying at the wharf,' it was adjudged that a war- 
 ranty might be implied that the barge was reasonably fit for all 
 such service as vessels of that class were usually and commonly 
 employed in. Shepherd v. Pybus, 3 Man. & Gr. 868. To the 
 same effect are the decisions in the cases of L,aing v. Fidgeon, 6 
 Taunt. 108, upon an order for 'goods for North America, J 
 dozen single flap saddles,' and of Brown v. Edgington, 2 Man. 
 & Gr. 279, upon the sale of a 'crane rope.' "*^ 
 
 Where a second-hand automobile was sold as fit for a special purpose 
 known to the defendant as a delivery wagon that is implied warranty 
 Ihat it was fit for the purpose for which it was sold.*' 
 
 Where a buyer tells the seller's agents the character of country and 
 the uses for which he wants the automobile, that he knows nothing 
 about automobiles and relies on them to pick him out a car best adapted 
 for the purpose the law implies a warranty of fitness for the particular 
 use." 
 
 § 760. Contract to manufacture to the "satisfaction" of purchas- 
 er.*° — Where a contract is made to manufacture an article or to render 
 
 *i86 Mass. 268, 273. 
 
 *2See to this effect Berg v. Rapid Motor Vehicle Co., 78 N. J. L. 724, 75 Atl. 933- 
 «Bauchet v. Oregon Motor Car Co., Oregon, 152 Pac. 888, ipiS- 
 ^^International Harvester Co, v. Porter, 160 Ky. 509, 169 S. W. 993- See 
 further § 759- 
 *6See § 637, Sales on trial. 
 
 504 ! 
 
WARRANTIES § 760 
 
 services which shall be satisfactory to the other party, the latter is the 
 sole judge as to the performance of the contract.*" 
 
 In Brown v. Foster," Mr. Justice Devens, speaking of the contract 
 between the parties, says : 
 
 "By the terms of it the plaintiff agreed to make and deliver to 
 the defendant upon a day certain, a suit of clothes, which were 
 to be made to the satisfaction of the defendant. The clothes 
 were made and dehvered upon the day specified, but were not 
 to the satisfaction of the defendant, who declined to accept and 
 promptly returned the same. If the plaintiff saw fit to do work 
 upon articles for the defendant and to furnish materials therefor, 
 contracting that the articles when manufactured should be satis- 
 factory to the defendant, he can recover only upon the contract 
 as it was made ; and even if the articles furnished by him were 
 such that the other party ought to have been satisfied with them, 
 it was yet in the power of the other to reject them as unsatis- 
 factory. It is not for anyone else to decide whether a refusal to 
 accept is or is not reasonable, when the contract permits the de- 
 fendant to decide himself whether the articles furnished are to 
 his satisfaction. Although the compensation of the plaintiff for 
 valuable service and materials may thus be dependent upon the 
 caprice of another who unreasonably refuses to accept the articles 
 manufactured, yet he cannot be relieved from the contract into 
 which he has voluntarily entered. McCarren v. McNulty, 7 
 Gray 139. 
 
 "When an express contract like that shown in the present 
 case was proved to have been made between parties, it was not 
 competent to control it by evidence of a usage. It may be that 
 the very object of the express contract was to avoid the effects of 
 such usage, and no evidence of usage can be admitted to con- 
 tradict the terms of a contract, or control its legal interpretation 
 and effect. Dickinson v. Gay, 7 Allen 29, 31." 
 
 Walker v. Grout Bros. Auto Co.,** was an action to recover the pur- 
 chase-price of a steam automobile bought by plaintiff, a woman, from 
 defendants, who were manufacturers. Raintiff claimed that the de- 
 fendant by its president, one Grout, represented to her that the car was 
 "simple in construction, easily run and operated by a lady, no manual 
 
 *« Aiken v. Hyde, 99 Mass. 183; Brown v. Foster, 113 Mass. 136; Kendall v. 
 West, 196 111. 221, 224, 63 N. E. 683; Seeley v. Welles, 120 Pa. St. 69, 13 Atl. 736. 
 *^ii3 Mass. 136. 
 48124 Mo. App. 628, IQ2 S. W. 25. 
 
 505 
 
§ 76 1 WARRANTIES 
 
 labor" and further that he said, "I will guarantee that the machine will 
 do all this, that it will be satisfactory," and again, "I will make that 
 machine satisfactory to you." Plaintiff found that the car was not as 
 represented and was unsatisfactory. She returned the machine to the 
 defendant and demanded back the purchase-price, which being refused, 
 she brought suit. The court, by Presiding Judge Bland, say : 
 
 "Contracts * * * ^o furnish an article satisfactory to the 
 vendee, or perform services satisfactory to an employer, have 
 often been interpreted to mean what they say, that is, that the 
 article furnished must be satisfactory to the vendee, or the ser- 
 ices rendered satisfactory to the employer, in order to show per- 
 formance" * * * (p. 642). "It sems to us the case comes 
 within the class where the right of decision as to whether or not 
 the article furnished is satisfactory, was reserved for the plain- 
 tiif," and that the trial court erred in charging the jury, "that the 
 plaintiff was not the sole judge of the satisfactory character of 
 the car; * * * and if they believe from the evidence that 
 the car was or would have been satisfactory to a reasonable 
 person for the purpose for which it was sold, they will find a 
 verdict for defendant." 
 
 § 761. Failure to deliver on time. — Time in a contract, that is to 
 say, that the goods shall be delivered on a specified date, or hour, may 
 be a mere condition or it may go to the essence of the contract, de- 
 pendent upon the terms of the instrument itself or upon the circum- 
 stances of the case. If it be merely incidental, in connection with the 
 conditions and warranty, then a breach of contract in tliis fespect, would 
 not give a right to rescind, but would permit the vendee to sue the 
 vendor for any damages which might have been sustained in conse- 
 quence of the failure to deliver. If, however, time was the essence of 
 the contract, that is to say, went to its very substance, and was a con- 
 dition precedent to the fulfilment of the contract, then the failure of the 
 vendor would give a right to the vendee to rescind the contract, and, in 
 addition to bring his action against the vendor, for any damages which 
 he might sustain in consequence of the vendor's failure to so deliver 
 within the required time.*" 
 
 The buyer, however, may insist upon the delivery of the goods not- 
 withstanding the delay, and accept them without waiving his right to 
 
 "Jones V. United States, 96 U. S. 24; Buick Motor Co. v. Reid Mfg. Co., 
 ISO Mich. 118, 113 N. W. 591. 
 
 506 
 
WARRANTIES § 762 
 
 whatever damages he suffered by the delay, unless an intention to waive 
 is manifested.'" 
 
 In Buick Motor Co. v. Reid Mfg. Co.,=^ the Supreme Court, in affirm- 
 ing the judgment of the court below, say : 
 
 "The court further instructed the jury that the machines were 
 not delivered within the time provided for in the contract, and 
 that the plaintiff was liable in damages for such delay, unless 
 the delay had been waived by the defendant, and added, 'the 
 mere acceptance of the motors and transmissions, after the time 
 specified, would not of itself, waive the claim for damages for 
 delay by the defendant. 
 
 " 'The Reid Company had the right to require the Buick Co. 
 to deliver the motors and transmissions ordered after the time 
 had passed, and by exercising its rights and insisting on the 
 delivery of motors and transmissions after such time, the Reid 
 Co. did not waive its right to whatever damages it suffered by 
 the delay.' " 
 
 § 762. Measure of damages in such cases. — In an action for fail- 
 ure to deliver a specific article at a particular time and place, the value 
 of the article at the time and at the place of delivery, furnishes the 
 measure of damages.'^ 
 
 § 763. Representations. — In Benjamin on Sales,'^ the meaning in 
 law of the word representations is defined as follows : "A representation 
 is a statement or assertion made by one party to the other before or at 
 the time of the contract, of some matter or circumstances relating to it. 
 A representation, even though contained in a written instrument, is not 
 an integral part of the contract. Hence it follows that, even if it be 
 untrue, the contract in general is not broken, nor is the untruth any 
 cause of action unless made fraudulently." But this statement, as will 
 be seen by reference to the cases, is not to be taken too literally because 
 a representation may amount to a mere incident of the contract, or it 
 may rise to the dignity of an independent agrement. Whether it is the 
 one or the other, is to be determined, as Lord Mansfield says, in Jones 
 v. Barkley,=* "from the evident sense and meaning of the parties." 
 
 soSpeare v. Halstead, 74 N. C. 620. 
 "150 Mich. 118, 123, 113 N. W. 591. 
 
 s^Shaw V. Nudd, 25 Mass. 9; Berg v. Rapid Motor Vehicle Co., 78 N. J. l^. 
 724, 75 Atl. 933- 
 ''S7th ed., sec. 561. 
 "2 Doug. 684, 691. 
 
 507 
 
§ 763 WARRANTIES 
 
 As already said all warrants involve representations. Dr. Whar- 
 ton, on Contracts,^' speaking of representations, observes; 
 
 "A representation is therefore, distinguishable from a condi- 
 tion in this, that while all conditions are representations, yet 
 there may be representations which are not conditions, in 
 which cases the untruth of the representation does not prevent 
 the contract from taking effect, the validity of the contract not 
 being dependent on the truth of the representation. And while 
 all warranties involve representations, yet no representation 
 is a warranty unless it includes an agreement that a particu- 
 lar thing possesses a certain material quality."^" 
 
 In Warren v. Walter Auto. Co.,^^ the court held that the statements 
 asserted to have been made, did not constitute a warranty, in view of 
 the facts that the defendant knew that the car had been run two hun- 
 dred and fifty miles, and had ample time for examination. Grout 
 Bros. V. Moulton.'* was a case, where plaintiffs were manufacturers 
 and dealers in steam automobiles. The defendant entered into a con- 
 tract with them to purchase an automobile of 'the "model of the year 
 1903." The plaintiffs delivered to him a car that was of the "model 
 of 1902." Defendant told Grout at the time of the agreement that "he 
 knew nothing of automobiles except what he had been told." De- 
 fendant testified that he inquired of Grout concerning the truth of the 
 statements contained in plaintiff's catalogue. Grout replied that "he 
 would guarantee every statement in said catalogue" except one, which 
 had nothing to do with the case. Defendant refused to pay for the 
 automobile and Grout Brothers sued for the purchase price. Plaintiff 
 contended that defendant before purchasing the car, examined it and 
 had a "demonstration," and that they delivered the car to him just 
 as he saw it originally. The court, by Mr. Chief Justice Rowell, con- 
 cerning the representations as to the "model" of the car, say that they : 
 
 "Were a part of the res, as they related to the very contract 
 here in question. It is not necessary that they should have 
 been simultaneous with the conclusion of the contract, but only 
 
 55Sec. 212. 
 
 "'See also Ibid., sec. 214. 
 
 6'SO Misc. 60s, 99 N. Y. Supp. 356. 
 
 6864 Atl. 453, 79 Vt. 122. 
 
 508 
 
WARRANTIES § 7^4 
 
 that they should have been made during the negotiations that 
 led to the contract, have influenced the defendant in making 
 it, and entered into it as part thereof, all of which the testi- 
 mony tended to show.^° 
 
 § 764. Price in connection with representations.'" — Where the 
 price of a vehicle is below the usual cost, such circumstance must be 
 taken in consideration with representations concerning the same, in 
 determining the question of warranty. 
 
 In Morley v. Consol. Mfg. Co.,°^ the vehicle in question was a 
 second-hand automobile. Plaintiff's testimony went to show that the 
 defendant represented that the automobile "was in good condition — 
 first-class condition." Plaintiff made examination and had several 
 subsequent trials of the car. The court, by Mr. Justice Hammond, 
 say that the plaintiff bought the car: 
 
 "At what he knew was a sum below the usual price for a 
 new machine of the same kind. * * * Every part essential 
 to the running of the machine was there at the time of the pur- 
 chase * * * and after the purchase, was actually used by 
 the plaintiff nearly, if not quite two months before the shaft 
 broke. * * * There is no claim of fraud. Under these 
 circumstances we think that there was no implied warranty 
 as to the length of time the shaft would last, but that as to 
 that the doctrine of caveat emptor is applicable. See Wilson v. 
 Lawrence, 139 Mass. 318." 
 
 The converse to the foregoing rule is not to be taken as true in all 
 cases, namely, that a "sound price" creates a warranty by implica- 
 tion. Such a rule would annul that of caveat emptor. As far as the 
 rule can be carried it is, that an executorv contract to sell carries an 
 obligation that the thing sold shall be merchantable. In i Parsons on 
 Contracts/"' it is noted that there are but two states in the Union — 
 South Carolina and Louisiana — in which the rule prevails that "a sound 
 
 5'See Washburn v. Ranier Co., 130 N, Y. App. Div. 42, 114 N. Y. S. 424; Joslyn 
 V. Cadillac Automobile Co., 177 Fed. 863, loi C. C. A. 77. 
 See also ante, § 742. 
 '"See § 641, Sales — Caveat emptor. 
 6I196 Mass. 257, 81 N. E. 993- 
 *^9th ed., page 620. 
 
 509 
 
§ 765 WARRANTIES 
 
 price implies a sound article." An unsound price should put the pur- 
 chaser on his guard against defects, either obvious or latent. 
 
 § 765. Used cars. — Where a used car has been freshly repainted 
 and apparently was all right the buyer is justified in relying on the 
 seller's statement that it has been thoroughly rebuilt.** 
 
 § 766. Functions o£ the court and of the jury as to represen- 
 tations. — "As mere silence implies no warranty neither do remarks 
 which should be construed as simple praise or condemnation, but any 
 distinct assertion or affirmation of quality made by the owner during a 
 negotiation for the sale of a chattel, which it may be supposed was 
 intended to cause the sale and was operative in causing it, will be re- 
 garded either as implying or as constituting a warranty. If such af- 
 firmation were made in good faith, it is still a warranty and if made 
 with a knowledge of its falsity it is a warranty and it is also a fraud. 
 Whether such affirmation was intended to be and was received as a 
 warranty, seems to be a question for the jury, but whether the state- 
 ments were in law mere expressions of opinion or affirmations equiva- 
 lent to warrantly is a question of law."°* 
 
 § 767. Representations must have been acted upon. — In South- 
 ern D. Co. V. Silva,*' the Supreme Court, by Mr. Justice Lamar, say: 
 
 "It is essential that the defendant's representations should 
 have been acted on by complainant, to his injury. Where the 
 purchaser undertakes to make investigations of his own, and 
 the vendor does nothing to prevent his investigation from be- 
 ing, as full as he chooses to make it, the purchaser cannot aft- 
 erwards allege that the vendor made misrepresentations." 
 
 § 768. Opinions as representations.*' — ^The general rule is that 
 statements which are merely matters of opinion, cannot bind the person 
 making them as if he had warranted their correctness." 
 
 e'Morbrose Inc. Co. v. Flick, 187 Mo. App. 528; 174 S. W. 189. 
 
 6*1 Parsons on Contracts, gth ed., p. 615. 
 
 o'lzs U. S. 247, 259. 
 
 "^See § 729, "Dealers' talk." 
 
 8'Wald's Pollock on Contracts, 3d ed., 691; Manning v. Albee, 93 Mass. 52°. 
 I Parsons on Contracts, 9th ed., p. 615; Morley v. Consol. Mfg. Co., 196 Mass. 
 2S7, 81 N. E. 993. 
 
WARRANTIES § 7^9 
 
 But this rule is not without its exceptions, as appears in the follow- 
 ing cases: 
 
 In Mooney v. Miller,"' Mr. Chief Justice Chapman says: 
 
 "This is an action of tort, founded on certain - fraudulent 
 representation, alleged to have been made by the defendant to 
 the plaintiff, by which she was induced to purchase a lot of 
 land. Some false representations of this character are ac- 
 tionable, others are not. If they relate to material facts not 
 within the observation of the opposite party, and are made 
 with intent to deceive, they are actionable; but if the truth 
 can be ascertained by ordinary viligence, they are not action- 
 able. Brown v. Castles, ii Cush. 348." 
 
 In Warren v. Walter Auto Co.,®* plaintiff alleged that when he 
 bought the car defendant represented "that the machine was in first- 
 class and perfect order and ready to run, that it was a new machine 
 and had not been run over two hundred and fifty miles, and that the 
 tires thereon were new and had not been run over two hundred and 
 fifty miles." The court held that the statements asserted to have been 
 made by defendant do not constitute a warranty in face of the fact 
 that the defendant knew that the car had been run and had ample 
 opportunity for examination, having taken long journeys in the car 
 before accepting it. And if the statement to the buyer "was merely 
 an expression of opinion" and not a statement of "present existing 
 fact made to induce the purchase," it could not be construed as a 
 warranty. 
 
 § 769. Rule of caveat emptor in sales by manufacturers.'" — 
 The rule of caveat emptor, finds a modification in the case of the sale 
 of an article by the manufacturer thereof. Dr. Parsons,'^ thus states 
 it: 
 
 "If one contracts to manufacture, for a buyer an article of 
 a certain quality, and when the article is delivered it is so 
 deficient as to justify a refusal to accept, it is held that the 
 
 «*i02 Mass. 217, 220. 
 «»S0 Misc. 605, 99 N. Y. Supp. 396. 
 
 '"See § 611 et seq., Chapter on Sales for further consideration of this topic. 
 See § 595 et seq. 
 "On Contracts, 9th ed., vol. i, p. 621. 
 
 5" 
 
§ TJQ WARRANTIES 
 
 buyer may tender the article to the seller, and if he refuses to 
 receive it may sell it for the best price he can obtain without 
 giving notice to the seller of the time and place. And the rule 
 requiring that the deficient article must be returned when the 
 deficiency is discovered, has no application where the deficiency 
 was discovered only by the destruction of the article in using 
 
 In this connection, note Dr. Wharton's" exception to the same rule 
 in the following language : 
 
 "Thus where a purchaser inspects personally a specific ar- 
 ticle sold, and the seller who is not the manufacturer, makes 
 no warranty, and is guilty of no fraud, etc." the rule of caveat 
 emptor will apply. 
 
 The rule of caveat emptor imposes on the buyer the duty of making 
 a reasonable examination and as to those defects which he would have 
 discovered with reasonable care he cannot complain of the false repre- 
 sentations of soundness but he can recover for hidden defects.^' 
 
 § 770. Fraud and deceit.'* — Wherever fraud or deceit occur, or 
 wilful misrepresentation, or a reckless misstatement of fact, there is 
 a breach which will warrant the rescission of the contract, whether it 
 be on the ground of warranty or of fraud. Honest misstatements, that 
 the party making them believed to be true, which amounted to a ma- 
 terial misrepresentation, will also avoid the contract to which they led, 
 but will not expose the maker to an action for fraud or deceit, "but 
 the evidence under such circumstances to sustain a decree for recission, 
 should be strong and plain."^^ 
 
 In Tucker v. White,''" Mr. Justice Morton says : 
 
 "The gist of an action of deceit is fraud and deceit of the 
 defendant causing damage to the plaintiff. Ordinarily it is 
 necessary to prove, not only that the defendant made state- 
 ments of facts which were false, but that he knew them to be 
 
 '^On Contracts, sec. 907. 
 
 7'Morbrose & Linn Co. v. Flick, 187 Mo. App. 528, 174 S. W. 189. 
 '*See chapter on Sales, §§ 646, 680. 
 
 '"I Wharton on Contracts, sec. 214. See also City Iron Works v. Barber, 
 102 Pa. St. 156, 163. 
 f8i2S Mass. 344. 347- 
 
 SI2 
 
WAERANTlBS % 77'^ 
 
 false. It has been held that if a man makes statements of facts, 
 as of his own knowledge, which are false, he is liable to an action 
 for deceit, though he belived them to be true. The falsehood 
 consists in stating that he knew the facts when he did not 
 know them. * * * g^^ ^j^jg j.yjg jg confined to cases where a 
 man states as to his own knowledge facts which are susceptible 
 of personal knowledge. As stated by Chief Justice Shaw, in 
 Page V. Bent, 2 Met. 371, in a matter of opinion, judgment 
 and estimate, if one states a thing as of his own knowledge, if 
 he in fact believes it, and it is not intended to deceive, it is not 
 a fraud, although the matter thus stated is not in fact true. 
 The reason is, that it is apparent from the subject matter, that 
 what is thus stated as knowledge must be considered and un- 
 derstood, by the party to whom it is addressed, as an expres- 
 sion of strong belief only, because it is a subject of which 
 knowledge, in its strict sense, cannot be had." 
 
 § 771. Remedies of buyer on breach of warranty. — Upon a 
 breach of warranty two remedies are open to the buyer ; first he may 
 return the chattel if delivered within a reasonable time after dis- 
 covering the breach and recover back in assumpsit on the common 
 courts the amount paid or, secondly he may retain the chattel and sue 
 upon the contract for damages resulting from the breach of the 
 warranty." 
 
 § 772. Where customer had right to exchange. — Action for breach 
 of warranty of quality in a sale of an automobile may be maintained 
 although part of the contract of sale was that thi customer might 
 exchange the car if it did not fulfil the warranties. This did not 
 render the sale less complete.''* 
 
 § 773. Recission of contract.'^ — In Beecroft v. Van Schaick,'" 
 the plaintiff sought to recover the purchase price of an automobile, 
 which he bought from the defendant. 
 
 "The plaintiff claimed, and the jury found, that the auto- 
 mobile was sold under a warranty for a period of one year, 
 and that soon after its delivery it got out of order. After 
 repeated attempts to remedy the defects, all of which were un- 
 successful, the plaintiff sent the automobile to a garage in 
 
 ''White Automobile Co. v. Dorsey, 119 Md. 251, 86 Atl. 617. 
 ''Lewis V. Pope Motor Car Co., 202 N. Y. 402 ; 95 N. E. 815. 
 "See § 669, et seq.. Sales, for further consideration of this subject. 
 8O104 N. Y. Supp. 458, App. Term. 
 
 33 
 
§ 774 WARRANTIES 
 
 New York city and wrote the defendant that he returned it 
 under the terms of the agreement." 
 
 The jury found for the plaintiff and the appellate court, on the 
 facts stated, affirmed the judgment. In all such cases the right to 
 rescind must be exercised without unreasonable delay .*^ 
 
 § 774. Remedying defects. — ^There is no breach of a warranty 
 of a car for a year where it appears the buyer used the car for that 
 period and the seller made necessary repairs and when the want of 
 power was called to his attention he remedied it.'" 
 
 § 775. Damages from defective oil. — In an action for damages 
 to an automobile due to defective oil furnished by the defendant the 
 mere presence of excessive carbon in the cylinders is no evidence of 
 the defective character of the oil as the cylinders may have been so 
 loose that the oil worked up past the piston rings, thus causing the 
 damage.'^ 
 
 The defendants who sold cylinder oil to the plaintiflE cannot be 
 held liable for a breakdown of the engine which occurred some time 
 after the defendant's oil was all cleaned out. If the defendants were 
 liable for any damages they must be measured by the condition of 
 the car at that time.'* 
 
 § 776. Measure of damages for breach of warranty.'^ — In Isaacs 
 V. Wannamaker,'" the court find that there was a breach of warranty 
 of which the defendant was guilty. Mr. Justice Bartlett says : 
 
 "It has long been the settled law of this state that where 
 an article is delivered to the purchaser with an express war- 
 ranty, the measure of the purchaser's damages on the breach 
 thereof is the difference between the value of the article if it 
 had been as warranted and the .actual value. (Voorhees v. 
 Earl, 2 Hill, 288 ; Gary v. Gruman, 4 Hill, 625 ; MuUer v. Erd, 
 14 N. Y. 597; Rust V. Eckler, 41 N. Y. 488)." 
 
 siCunningham v. Wanamaker, 217 Pa. St. 497, 66 N. E. 748; Joslyn v. Cadillac 
 Automobile Co., 177 Fed. 863, loi C. C. A. 17. 
 szjones v. Keefe, iS9 Wis. 584, 150 N. W. 954- 
 s'Knight V. Willard, 26 N. D. 140, 143 N. W. 346. 
 8*Knight V. Willard, 26 N. D. 140, 143 N. W. 346. 
 85See § 681, et seq., § 671, et seq. ; also Chapter LV. 
 88189 N. Y. 122, 81 N. E. 763. 
 
WARRANTIES § ^^^ 
 
 In an action for breach of warranty the measure of damages is the 
 difference between the value of the article with the defect warranted 
 against and the value it would have borne without that defect and the 
 price paid is strong evidence of its value if it had corresponded with 
 the warranty.*' 
 
 If a seller represents to the buyer that an automobile is free from 
 defects and suitable to run over the roads when it is not the buyer 
 can recover the purchase price and the cost of repairs he incurred 
 trying to make it run.'* 
 
 § "JTJ. Measure of damages for breach as to price. — Where 
 defendant contracts with plaintiff to build a machine or a number of 
 machines, at a stipulated price, and fails to perform his contract, plain- 
 tiff is entitled to recover as damages, the difference between what de- 
 fendant was to build the machines for, and what would be required 
 by others to build them.*^ 
 
 '^White Automobile Co. v. Dorsey, 119 MA 251; 86 Atl. 617. 
 88E. M. F. Co. V. Davis, 146 Ky. 231, 142 S. W. 391. 
 89Weed V. Draper, 104 Mass. 28. 
 
 515 
 
CHAPTER XXX. 
 
 INSURANCE. 
 
 § 778. In general. 
 
 779. Character of policy. 
 
 780. Whether fire originates within the vehicle. 
 
 781. Misrepresentation. 
 
 782. Knowledge of agent binding on company. 
 
 783. Where company repairs damage. 
 
 784. Condition that car be kept in certain building. 
 
 785. Condition against renting. 
 
 786. Accident while cranking. 
 
 787. Skidding not a derailment. 
 
 788. Collision. 
 
 789. Theft. 
 
 790. Validity of liability insurance. 
 
 791. Power to insure against liability for negligence. ^ 
 
 792. Liability policy does not cover criminal prosecution. 
 
 793. Character of relationship in liability policy. 
 
 794. Notice to company where claim delayed. 
 
 795. Recovery against officer of insured company. 
 
 796. Disclosure of fact that defendant is insured is error. 
 
 797. Effect of insurance on damages. 
 
 798. When it may appear that defendant is insured. 
 
 § 778. In general. — ^Two forms of insurance have become common 
 in the motor world, one against Hre and the other against accident. 
 Both proceed upon the same general lines as insurance of similar char- 
 acter in the usual business of insurance and are controlled by the same 
 principles of law. The following motor vehicle cases are quoted at 
 considerable length because they cover the ground in each of the two 
 classes, and because they are the only cases found reported on this 
 topic. 
 
 § 779. Character of policy. — An insurance policy which insured an 
 automobile against destruction or damage by fire, theft and perils of 
 transportation is still a fire policy and should be declared on as such.^ 
 
 § 780. Whether fire originates within the vehicle. — An interest- 
 ing difference of opinion arose in the case of Preston v. JEtna Insur- 
 
 lUnion Marine Ins. Co. v. Charles' Transfer Co., 186 Ala. 443, 63 So. 78. 
 
 S16 
 
INSURANCE § 780 
 
 ance Co.,^ wherein the Court of Appeals reverse the Supreme Court, 
 Appellate Division.^ The facts were that the plaintiff was the owner 
 of an automobile which was insured by the defendant, under a policy 
 insuring "against all direct loss from damage by fire, except as 
 hereinafter provided, to an amount not exceeding $6,500," which 
 qualifying provision was as follows: "It is understood and agreed 
 that the policy does not cover loss or damage caused by fire orginating 
 within the vehicle." In the night the automobile ran off the road 
 into a ditch, turning on its side. It took fire and was destroyed. The 
 machine carried, attached to it by brackets on the outside two kerosene 
 lamps which were lighted at the time of the accident, and a gasoline 
 tank under the forward seat within the vehicle. It was shown that 
 there were no matches or other combustible substance in the vicinity of 
 the car. The chauffeur was killed and none of the surviving passen- 
 gers was able to assert how the fire originated. It was shown that 
 gasoline escaped from the tank, making its way to the surface of the 
 water in the ditch, from whence its vapor might have penetrated to the 
 lighted lamps originating the fire in that way. 
 
 The appellate division, in an opinion by Mr. Justice Ingraham, to 
 which one of the judges dissented, consider the origin of the fire as 
 having probably occurred from the flame of the lamps coming in con- 
 tact with the gasoline or gasoline vapor emanating from the tank, or 
 possibly from the vapor arising from the surface of the water. The 
 majority opinion concludes that — 
 
 "While it might be said that the lamps and other appliances 
 on the outside of the vehicle, and which are affixed to it, would 
 be a part of the vehicle, certainly none of them are inside the 
 vehicle, and not, therefore, within the vehicle." 
 
 And the court decide that hence the fire orginated outside the vehicle 
 and was covered by the policy. 
 
 In the court of appeals the opinion was written by Presiding Judge 
 Cullen, Mr. Justice Vann dissenting. The majority of the court say : 
 
 "We cannot accept this view entertained by the majority of 
 the appellee division. Doubtless the general rule is, as often 
 
 H93 N. Y. 142, 8s N. E. 1006. 
 
 3ii8 N. Y. App. Div. 784, 103 N. Y. S. 638. 
 
 S17 
 
§ 7^1 INSURANCE 
 
 stated, that where an insurance policy is so drawn as to be 
 ambiguous or require interpretation, that interpretation will be 
 adopted which is most favorable to the insured. * * * g^. 
 the rule is equally well settled that contracts of insurance, like 
 other contracts, are to be construed according to the sense and 
 meaning of the terms which the parties have used, and if they 
 are clear and unambiguous the terms are to be taken and un- 
 derstood in their plain, ordinary and proper sense. * * * 
 That the lamps were part of the automobile so that the policy 
 would have covered their loss had the fire been caused by other 
 than the excepted risk seems reasonably clear. That the gasoline 
 vapor must have penetrated within the lamp to have ignited 
 is also clear. Therefore, within the letter of the policy the fire 
 in this case originated within the vehicle itself and was an ex- 
 cepted risk. We do not care, however, to stand on the prop- 
 osition that, construing the policy literally, this fire fell within 
 the exception, but on the broader ground that by a fair in- 
 terpretation of this policy it was intended to exclude risks of this 
 character. * * * The fair and natural import of the policy 
 was to exclude loss by fire, danger of which was inherent in 
 the use or operation of the automobile itself without the inter- 
 vention of any extrinsic cause or agency. * * * It is true that 
 by reason of the presence of the gasoline an automobile would 
 possibly, at all times, be more inflammable and subject to greater 
 injury by fire than other vehicles. Such risk, was doubtless 
 paid for by the premium exacted and was 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. In other words 'within' in 
 this policy is used as the antithesis of 'extrinsic' or 'without,' 
 not as the synonym of 'interior.' The question is one that does 
 not admit of extended elaboration. We can only say that in our 
 judgment the policy did not cover the loss in this case." 
 
 § 781. Misrepresentation. — A misstatement in an application for a 
 policy of the year of the car is a material misrepresentation avoiding 
 the policy in most cases.* 
 
 Where an owner of an automobile applies for fire insurance it is 
 immaterial whether he states that it is a 19 10 model or that he bought 
 it for a 1910 model when he expected the insurance agent to rely on 
 the statement and the car is in fact a 1907 model.^ 
 
 ^Harris v. St. Paul Fire & Marine Ins. Go., 126 N. Y. S. 118, App. Term. Reed 
 V. St. Paul Fire & Marine Ins. Co., 165 App. Div. 660, 151 N. Y. S. 274 (N. Y. 
 Sup.). 
 
 "Smith V. American Automobile Co., 188 Mo. App. 297, 175 S. W. 113. 
 
 S18 
 
INSURANCE § 782 
 
 But the fact that the plaintiff in applying for fire insurance on an auto ■ 
 mobile states incorrectly the year of the car is not fatal to his case 
 where the car was otherwise minutely described even by the maker's 
 number and it appeared that the differences between the model of the 
 car and that described was inconsiderable and that the misstatement 
 did not increase the risk of loss.* 
 
 § 782. Knowledge of agent binding on company. — An insurance 
 company is bound by knowledge of its agent that a certain automobile 
 insured had been sold before the policy issued.'' 
 
 § 783. Where company repairs damage. — Suit may be maintained 
 on a fire insurance policy although the company has repaired the car 
 with the consent of the owner as the burden is on the company to 
 prove this.* 
 
 § 784. Condition that car be kept in certain building. — Where an 
 insurance policy is conditioned upon the automobile being kept in a 
 certain private garage, and the owner removed it from this garage 
 permanently some five or six months before the accident and then sent 
 it to a machine shop to be painted where it was burned, this removal 
 from the private garage is a material breach which precludes recovery 
 although the placing it in the machine shop was not a violation.*" 
 
 A waiver of a clause in an automobile insurance policy that it shall 
 be kept in a certain private garage is shown where the owner tells the 
 agent he is going to take the car away for a two weeks trip and the 
 agent says all right.^" 
 
 § 785. Condition against renting. — An insurance policy providing 
 that cars insured shall not be rented or used for passengeir service of 
 any kind for hire, is not made void by one act of renting by the owner's 
 chauffeur without his knowledge or consent.^^ 
 
 A provision in an automobile fire insurance policy that it shall not 
 be used for carrying passengers for compensation means that it shall 
 
 «I<ocke V. Royal Ins. Co., 220 Mass. 202; 107 N. E. pu- 
 'Commercial Claim Assn. Co.. v. Lyon, (Ga.), 87 S. E. 761, 1916 
 sQaflfey v. St. Paul Fire and Marine Co., 164 App. Div. 381, 149 N. Y. S. 859 
 (N.Y. Sup.). 
 sTimmins v. Fireman's Fund Ins. Co., N. C, 83 S. E. 688, 191S. 
 loComraercial Union Ins. Co. v. Hill, Tex. Civ. App., 167 S. W. 1095- 
 "Hall Furniture Co. v. Crane Breed Mfg. Co., 169 N. C. 41. 85 S. E. 35- 
 
 S19 
 
§ 786 INSURANCE 
 
 not be continuously used for that purpose for any length of time but 
 a casual use for that purpose will not avoid the policy." 
 
 Where a fire insurance policy provides that an automobile shall not 
 be used for carrying persons for hire it is broken where the owner's 
 son with the owner's knowledge and consent for compensation makes 
 trips with passengers whether or not the fire risk is increased. The 
 policy was therefore not in force when the loss occurred and the plain- 
 tiff cannot recover. Nor is he entitled to a return of any part of the 
 premium.^^ 
 
 § 786. Accident while cranking. — It is an accident where one 
 slips and falls while cranking an automobile within the terms of an 
 accident insurance policy." 
 
 § 787. Skidding not a derailment. — The skidding of the hind 
 wheels of an auto truck into the gutter, causing it to capsize when it 
 was being operated upon a public highway cannot be found to be a 
 derailment within the terms of a policy insuring against loss from de- 
 railment. Derailment is used only in connection with transportation 
 by rail." 
 
 § 788. Collision. — The first question arising in collision cases is as 
 to the meaning of the word "collision" and it has been commonly held 
 to include striking stationary objects Uke trees, or even a portion of the 
 ground itself. 
 
 Policies insuring against collision commonly except collision with 
 any part of the roadbed and this has lead to wide differences of opinion 
 as to what is a part of the roadbed. It has been held for example that 
 "collision with any other automobile vehicle or object, excluding dam- 
 age caused by striking any portion of the roadbed" does not include a 
 case where the automobile runs off the road into the river.^° 
 
 So a policy insuring against "collision" does not cover a case where 
 the automobile slips over the side of the road before striking anything 
 and then upsets." 
 
 i^Commercial Union Ins. Co. v. Hill, Tex. Civ. App. ; 167 S. W. 1095. 
 
 i^Elder v. Federal Ins. Co., 213 Mass. 560; 100 N. E. 655. 
 
 i*Preferred Accident Ins. Co. v. Patterson, 213 Fed. 595, 130 C. C. A. 175, 
 3d Cir. 
 
 iBGraham v. Insurance Co., 220 Mass. 230; 107 N. E. 915. 
 
 leWettengel v. United States "I,loyds," 157 Wis. 433; 147 N. W. 360; Ann. 
 Cad. 191S A 626. 
 
 I'Stulhit V. United States, etc., Co., 89 Wash. 93; 154 Pac. 137. 
 
 S2Q 
 
INSURANCE § 788 
 
 However under an insurance policy including loss or damage to any 
 automobile "resulting solely from collision with any moving or sta- 
 tionary object excluding however damage resulting from collision due 
 wholly or in part to upsets" there is liability where an automobile 
 runs through a guard rail of a bridge and falls into the stream beneath. 
 Hitting the ground is a collision with a stationary object and hitting 
 the water is collision with a moving object. The court remarks that 
 to show a collision both bodies need not be in motion. Water is an 
 object, and it moves. Words used in an insurance policy should be 
 interpreted most strongly against the insurer. The collision with the 
 water and ground cannot be said to be caused by an upset. The upset 
 may have been the result of the collision. The policy does not 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.^' 
 
 Where the plaintiff was insured against loss caused by collision with 
 any object either moving or stationary excluding however any loss 
 caused by striking any portion of the roadbed a petition alleging that 
 the machine left the roadbed and collided with an embankment is not 
 subject to demurrer.^* 
 
 Where an automobile leaves the roadbed to pass another vehicle and 
 in turning back drops in a ditch and is overturned there is a sufficient 
 "collision" with the shoulder of the roadbed and the wheel to justify 
 a verdict for the plaintiff as this is not a part of the roadbed. The 
 roadbed is the travelled part of the road.^° 
 
 Whether a gutter or curbstone is a part of the roadbed within the 
 meaning of these policies seems still an open question. An insurance 
 policy insuring against collision except within the roadbed, insures 
 against collision with a granitoid gutter three inches deep as the gutter 
 is not part of the roadbed.'^ 
 
 * But the curbstone has been held a portion of the roadbed within the 
 meaning of an automobile insurance policy excluding loss or damage 
 caused by striking any portion of the roadbed. It is at any rate an 
 
 ^sHarris v. American Casualty Co. of Reading, 83 N. J. L. 641; 85 Atl. 
 194, 44 L. R. A., N. S. 70, 32 Ann. Cas. 846. 
 
 I'Hanvey v. Georgia Life Ins. Co., 141 Ga. 389; 81 S. E. 206. 
 
 ^"Hardenburgh v. Employers' Liability Ass. Co., 138 N. Y. S. 662, 78 Miss, 
 los. 
 
 "Stix V. Travellers' Indemnity Co., 175 Mo. App. 171, 157 S. W. 870. 
 
 521 
 
§ 789 INSURANCE 
 
 "impediment consequent upon the condition thereof" within the terms 
 of the policy.^^ 
 
 § 789. Theft. — The courts have held uniformly that to^ recover on 
 a policy insuring against theft criminal intent must be shown. 
 
 It is not larceny within the terms of an insurance policy where em- 
 ployees of a paint shop after hours without permission take out a car 
 left there for painting although the front door of the shop is locked 
 where they return it and intend to do so.^^ 
 
 An insurance company is not liable on a policy covering "theft, rob- 
 bery or pilfering" on evidence that an employee of the plaintiff took 
 the machine without permission and damaged it unless it also appears 
 that he intended to steal it. The word "theft" in the contract has the 
 same meaning as at criminal law.^* 
 
 An insurance policy against theft is not broken on evidence that 
 some boys took the car without authority for a joy ride and injured 
 it as this situation omits the element of intent to steal. ^^ ^ 
 
 In an action on an insurance policy for theft of a car the plaintiff 
 sustains the burden of showing that the car was stolen when taken out 
 by a drunken and impecunious salesman on his statement that it was 
 stolen from him but this is not enough to show that it was stolen by 
 one not in his employ.^" 
 
 § 790. Validity of liability insurance. — The principles upon which 
 motorists may insure themselves against damages arising from per- 
 sonal injuries occurring in motor vehicle accidents, and against the ex- 
 pense of defending such actions in the courts, are stated in Gould v. 
 Brock.^^ This was a case wherein the owner of an automobile held 
 a policy insuring him against damages arising from accidents occuring 
 through the operation of his automobile on the highway. He had met 
 with an accident and been sued by the injured person for damages. 
 The Travelers' Insurance Company, who issued the policy, intervened 
 in the damage suit under the terms of its policy, asserting its right to 
 
 22Gibson V Georgia Life Ins. Co., (Ga.), 86 S. E. 335. 
 
 23 Valley Mercantile Co. v. St. Paul Fire Ins., 49 Minn. 430; 143 Pac. 559; 
 L,. R. A. 1915 B, 327. 
 
 2*Kartford Fire Ins. Co. v. Wimbish, 12 Ga. App. 712, 78 S. E. 265. 
 "^Michigan Commercial Ins. Co. v. Wills, 57 Ind. App. 256 ; 106 N. E. 725. 
 2«Kansas City Auto Co. v. Old Colony Ins. Co., 187 Mo. App. 514; I74 S. W. 
 
 153. 
 2^221 Pa. St. 38, 69 Atl. 1 122. 
 
 522 
 
I<IABII,ITY § 790 
 
 "maintain and conduct the defense against the said action, as its own 
 cost, and according to its sole discretion and without any expense for 
 cost or reference whatsoever, to the said Brock." The plaintiff brought 
 his bill in equity to restrain the insurance company "from intermeddling 
 in the action at law aforesaid" and charging it with "interference" and 
 "maintenance." The defendant demurred to the bill and the cause was 
 heard on the demurrer which was overruled. On appeal, affirming the 
 judgment below, the court say : 
 
 "No cause of action is alleged in the bill which in any view 
 of it can sustain the interference of a court of equity. If there 
 are any available merits in complianant's case they are main- 
 tainable at law. But there is no ground either at law or in 
 equity. The right of a party sued to avail himself of all proper 
 means of defense, not only by the professional assistance of 
 counsel, but also by expert and other testimony, the experience 
 of persons familiar with the business, etc., and the further 
 right to protect himself by insurance from an adverse result 
 of uncertain litigation, are beyond question. There was a time 
 when all insurance, and especially of life, was looked upon with 
 suspicion and disfavor, but it was only because it was regarded 
 as a species of wagering contract. That time has long gone 
 by. And with the intelligent study of political economy bring- 
 ing the riecognition 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 protection 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. 
 
 There is nothing in this case that even remotely discloses the 
 taint of maintenance even at common law, much less of the 
 principle of maintenance as administered at the present day with 
 a clearly defined limitation to cases of actually malicious, dan- 
 gerous or illegal intermeddling with other parties' litigation."^' 
 
 ^^Maintenance. — "Maintenance" is defined generally by Bouvier in his Law 
 Dictionary (Rawles), as follows: 
 
 "A malicious, or at least, officious interference in a suit in which the 
 offender has no interest, to assist one of the parties to it against the other 
 with money or advice to prosecute or defend the action, without any au- 
 thority of law.'' 
 Strictly speaking, in its civil aspect, "maintenance'' is assisting another per- 
 son in a lawsuit without having any privity or concern in the subject. A per- 
 
 523 
 
§ 79 1 INSURANCE 
 
 § 791. Power to insure against liability for negligence. — Insur- 
 ance companies must be given express authority to issue liability insur- 
 ance which is not found in general expressions authorizing insurance. 
 So legislation authorizing "insurance on automobiles" does not author- 
 ize liability insurance.''' 
 
 And an insurance company authorized to insure against personal in- 
 juries resulting from traveling or accidents is not authorized to in- 
 sure against legal liability for negligence.^" 
 
 § 792. Liability policy does not cover criminal prosecution. — 
 Under an accident policy requiring the insurer to defend the insured 
 against suits brought against him on account of automobile accidents, 
 the insurer is not obliged to defend him against a criminal prosecution 
 for manslaughter. The word "suit" does not cover or imply a criminal 
 proceeding.^^ 
 
 § 793- Character of relationship in liability policy. — A provision 
 in a liability policy that no action shall lie against the company to re- 
 cover for loss or expense under the policy unless brought by the assured 
 for loss or expenses actually incurred applies only where the company 
 refuses to defend. Where the company defends and judgment is ob- 
 tained the liability becomes unconditional and may be garnished.'* 
 
 § 794. Notice to company where claim delayed. — Motorists 
 should always take pains to report to the company any accident no mat- 
 ter how trifling it may seem at the time. The courts may however 
 protect them in certain cases where they fail to do this. For example 
 one insured against liability had a collision with a bicyclist who was 
 thrown to the ground but apparently not injured. The bicycUst stated 
 he was not injured and kept about his usual employment and made 
 no claim till a year later when he became paralyzed. The insured did 
 
 son is not guilty of maintenance in carrying on a suit in the name of another, 
 or assisting in its prosecution, where he has any legal or equitable interest in the 
 subject of the controversy. 
 
 Wickham v. Conklin, 8 John. N. Y. 220, 228. 
 
 ^'American Automobile Ins. Co. v. Commission of Insurance, I73 Mich. 29s; 
 140 N. W. 557. 
 
 aoAmerican Fidelity Co. v. Bleakley, 157 Iowa 442, 138 N. W. 508. 
 
 siPatterson v. Standard Accident Co., 178 Mich. 288, 144 N. W. 491; Ann. 
 Cas. 191S A. 491. 
 
 ssPatterson v. Adam Casualty Co., 119 Minn. 308; 138 N. W. 281, 48 L. R. 
 A. N. S. 184. 
 
 524 
 
LIABILITY § 795 
 
 not notify the company of the accident till claim was made, relying on 
 the bicyclist's statement that he was not injured. The policy requires 
 the insured to give "immediate written notice" of any accident to the 
 company. The court holds that this provision is reasonable and should 
 be enforced but rules that if no apparent injury occurred from the mis- 
 hap and there was no reasonable ground for believing at the time that 
 bodily injury would result from the accident there was no duty upon 
 the insured to notify the insurer. The provision should be construed 
 reasonably and is satisfied if when the insured first receives notice that 
 the bicyclist was injured and that a claim for damages was liable to be 
 made he immediately notified the insurance company.^' 
 
 § 795. Recovery against officer of insured company. — ^An in- 
 demnity company is not liable when a judgment is obtained against 
 the president and largest stockholder of the company it has insured al- 
 though the company defends the suit.^* 
 
 § 796. Disclosure of fact that defendant is insured is error. — 
 The intrusion into a suit of the fact that the defendant is covered by 
 liability insurance is clear error and a ground for a new trial,^° and is 
 not even admissible to prove the ownership of the car.^' 
 
 It is prejudicial error if the plaintiff directly or indirectly lets the 
 jury know that the defendant is protected by a liability policy although 
 the jury is properly instructed to disregard it. The only exception is 
 where it clearly appears that the defendant was not prejudiced by the 
 evidence but this does not appear where the verdict in a personal injury 
 case is for the whole amount claimed.^' 
 
 It is a ground for reversal where the plaintiff makes a deliberate at- 
 tempt to introduce the fact that the defendant is protected by liability 
 insurance, but not where a witness inadvertently mentions insurance 
 
 33Chapin v. Ocean Accident & Guarantee Co., 96 Neb. 213, I47 N. W. 465; 
 S2 L. R. A. N. 8:227. 
 8*Park Springs Distilling Co. v. Employer's Indemnity Co., IS9 Ky. 460, 169 
 
 S. W. 730. 
 
 "Moy Quon v. M. Furuya, 81 Wash. 526, 143 Pac. 99; Blalack v. Blacksher, 
 II Ala. App. 545, 66 So. 863; Akin v. Lee (N. Y.), 206 N. Y. 20; 99 N. E. 
 8s, I N. C. C. A. 694; Tincknell v. Ketchman, 78 Misc. 419, 139 N. Y. S. 620 (N. 
 Y.' Sup.) ; Curran v. Lorch, 243 Pa. St. 247, 90 Atl. 62. 
 
 38Akin V. Lee, 206 N. Y. 20; 99 N. E. 85 ; Ann. Cas. 1914 A 947. 
 
 3'Shay V. Horr, 78 Wash. 667, I39 Pac- 604. 
 
§ 797 INSURANCE 
 
 where the question asked did not suggest anything of that nature. But 
 a party has no more right to inject such a matter into a case than his 
 attorney and if he does so his ignorance is no defense, and the judg- 
 ment should be reversed. The defendant's attorney need not at once 
 move to take the case from the jury but he saved his rights when he 
 objected to the evidence and took an exception. The matter is not 
 cured by admonition to the jury by the plaintiff's counsel or the court 
 to disregard the testimony as such admonition could not remove from 
 them the knowledge that the suit was not one between citizens, but 
 was one between citizens and a corporation.'* 
 
 § 797. Effect of insurance on damages.^' — The fact that the de- 
 fendant carried insurance or had been paid in part or even in full for 
 damage to his automobile is not admissible in evidence for the purpose 
 of reducing the damages.*" 
 
 In Smith's Leading Cases*^ it is said : 
 
 "It has been held that in an action for personal injuries sus- 
 tained through the defendant's negligence, a sum received by 
 the plaintiff upon an accidental insurance policy cannot be taken 
 into account in reduction of damages. Bradburn v. G. W. R. 
 Co., L. R. 10 Ex. I ; see Jebsen v. E. & W. India Dock Co., L. 
 R. 10 C. P. 300. 
 
 But where the claim for damages is made under Lord Camp- 
 bell's Act, as the claim is restricted to the actual pecuniary loss 
 sustained by the claimant, the acceleration of the receipt of in- 
 surance money may be taken into account in estimating the dam- 
 ages, though the amount received cannot. Hicks v. Newport R. 
 Co., 4 B. & S. 403n ; Grand Trunk R. Co. v. Jennings, 13 App. 
 Cas. 800." 
 
 § 798. When it may appear that defendant is insured. — A wit- 
 ness may answer that the only person to whom he refused permission 
 to examine his father was an insurance adjuster and this is not of it- 
 self a ground for a new trial.*^ 
 
 88Carter v. Walker, (Tex. Civ. App.), 165 S. W. 483. 
 
 ssReceipt of insurance as aflFecting damages for death, see post § 1778. In- 
 surance cannot be shown in mitigation of damages, see post § 1758. 
 *oHill V. Condon, (Ala. App.), 70 So. 208. 
 
 «Vol. 2, nth ed., p. 293. See § 1739. et seq., Measure of damages. 
 *2Bradley v. Cleary Co., 86 N. J. L. 338; 90 Atl. loig. 
 
 526 
 
LIABILITY § 798 
 
 Where a claim agent for an insurance company which has insured 
 the defendant against liability testifies it is proper to show on cross- 
 examination that he was the claim agent for the company as affecting 
 his credibility.*' 
 
 The defendant cannot claim as error his own testimony that the in- 
 surance companies were defending the suit.** 
 
 ■*'Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 Pac. 99. 
 
 "Ward V. Teller Reservoir and Irrigation Co., 60 Colo. 47, 153 Pac. 219. 
 
 527 
 
CHAPTER XXXI. 
 
 PRINCIPAL AND AGENT. 
 I. — The Doctrine of Respondeat Supeeior In General. 
 
 § 799. "Respondeat Superior.'' 
 
 800. Unauthorized Acts — English view. 
 
 801. American view. 
 
 802. "Employer," or "master" defined. 
 
 803. "Employe" or "servant" defined. 
 
 804. The relation. 
 
 80s. Relation of employer and chauffeur. 
 
 806. Tests of doctrine. 
 
 807. Unnecessary acts of employe. 
 
 808. When punitive damages recoverable against employers. 
 8og. Responsibility for an operator who is not hired. ■' 
 
 810. Implied authority of servant. 
 
 811. Effect of statutes requiring registration, etc. 
 
 812. Ratification of servant's acts. 
 
 813. Duty of master to seleqt competent servant. 
 
 814. General reputation for competency of servants. 
 
 815. General reputation for intemperance. 
 
 816. Liability of operator. 
 
 § 799. "Respondeat superior," is "a phrase often used to indicate 
 the responsibility of a principal for the acts of his servant or agent." 
 In general it includes both the expressions "Master and Servant" and 
 "Principal and Agent."^ 
 
 The doctrine of respondeat superior is peculiarly suited to the opera- 
 tion of an automobile.^ 
 
 This subject in its large sense, runs closely with the doctrine of im- 
 puted negligence to which attention has elsewhere been given.* Cer- 
 tain distinctions indeed, are noted by some of the text writers, and in 
 
 12 Bouvier's Law Diet. (Rawles), 906; Sweet's Law Diet. 712 (Eng.) ; Thomp- 
 son's Com. on Negligence, 2d ed., sees. 518, 519; Wharton on Negligence, 2d 
 ed., sec. 156; Shearman & Redf. on Negligence, Sth Ed., sec. 142; Cunningham 
 V. Castle, 127 N. Y. App. Div. 580, in N. Y. S. 1057. 
 
 ^Gerretson v. Rambler Garage Co., 149 Wis. 528; 136 N. W. 186; 40 L. R- A. 
 N. S. 457; 6 N. C. C. A. 368. 
 
 3§ 1019 et seq. 
 
 528 
 
RESPONDEAT SUPERIOR § 8oO 
 
 some of the decisions, but they are unimportant to the present purpose. 
 Judge Cooley* opening his consideration of the subject says : 
 
 "Attention is now directed to a class of cases in which the 
 law holds one party responsible for the wrongs done or suffered 
 by another, often with no regard to his personal fault, and in 
 many cases refusing to permit his actual fault to be disproved. 
 The cases embraced in this class are those in which one person 
 occupies towards another the relation of master to servant." 
 
 Commenting on this rule, Mr. Justice Sharswood, in Hays v. Miller,^ 
 remarks : 
 
 "It is very important that the principle of respondeat superior 
 should be upheld and maintained for the general security of 
 society, yet it is often attended with much seeming hardship. 
 To visit a man with heavy damages for the negligence of a serv- 
 ant, when he is able to show that he exercised all possible care 
 and precaution in the selection of him, is apt to strike the com- 
 mon mind as unjust." 
 
 § 800. Unauthorized acts — English view. — The observations of 
 Baron Parke, in 1834, in Joel v. Morrison," are expressive of the Eng- 
 lish view of many of the points to be considered. This case was 
 quoted in part by Mr. Justice Knowlton, in Perlstein v. American, Ex- 
 press Co.' The facts were that the defendant's driver accompanied 
 by a fellow servant, had negligently driven his employer's cart against 
 the plaintiff, the employer being absent. 
 
 Park B. "He" (the defendant) "is not liable if * * * 
 young men took the cart without leave; he is liable if they 
 were going extra viam in going from Burton Crescent Mews 
 to Finchly" (those being the places to which the master's busi- 
 ness called them) ; "but if they chose to go of their own accord 
 to see a friend when they were not on their master's business, he 
 is not liable. * * * There is no doubt that the plaintiff has 
 suffered the injury, and there is no doubt that the driver of the 
 cart was guilty of negligence, and there is no doubt also that 
 
 *0n Torts, 3d Ed., p. 1006. 
 
 '^77 Pa. St. 238, 241. 
 
 66 Car. & P. SOI. 
 
 '177 Mass. 530, 532, 59 N. E. 194 
 
 ^Italics by the author of this book. 
 
 34 ' ■'^'^:) 
 
§ 800 AGENCY 
 
 the master, if that person was drivingf the cart on his master's 
 business, is responsible. If the servants, being on their master's 
 business, took a detour to call upon a friend, the master mil 
 be responsible. If you think the servants lent the cart to a per- 
 son who was driving without the defendant's knowledge, he 
 will not be responsible. Or, if you think that the young man 
 who was driving took the cart surreptitiously, and was not at 
 the time employed on his master's business, the defendant will 
 not be liable. The master is only liable where the servant is 
 acting in the course of his employment. If he was going out of 
 his way, against his master's implied commands, when driving 
 on his master's business, he will make his master liable; but if 
 he was going on a frolic of his own, without being at all on his 
 master's business, the master will not be liable. As to damages, 
 the master is not guilty of any defense, he is only responsible in 
 law, therefore the amount should be reasonable." Verdict for 
 the plaintiff." 
 
 Lord Coleridge, C. J., in Rayner v. Mitchell, L. R.,^" says in a case 
 where the servant who had been employed to drive a cart, had gone 
 with it outside the scope of his employment for purposes of his own. 
 
 "The cases which have arisen upon this subject have from 
 the earlier time, been productive of much astute and interesting 
 discussion in courts of law, and eminent judges have differed 
 widely in their decisions. It has always been a matter of ex- 
 treme difficulty to apply the law to the ever-varying facts and 
 circumstances which present themselves. There is, however, 
 no doubt as to the true principle which ought to guide us. It 
 was laid down in Lord Holt's time, and repeatedly since, that, 
 wherever "the master intrusts a horse or carriage, or anything 
 which may readily be made an implement of mischief, to his 
 servant, to be used by him in furtherance of his master's busi- 
 ness, or for the execution of his orders, the master will be re- 
 sponsible for the negligent management of the thing intrusted 
 to the servant, so long as the latter is using it or dealing with it 
 in the ordinary course of his employment. That is undoubtedly 
 a correct statement of the law." 
 
 'See § 1766, Damages, employers' liability. 
 i°2 Com. Pleas, Div. 3S7. 3S9- 
 
RESPONDEAT SUPERIOR § 8oi 
 
 In Perkins v. Stead" Mr. Justice Ridley, speaking on this subject, re- 
 marked : 
 
 "It must be remembered that cases of that kind differed very 
 materially in the particular facts on which they arose. It was 
 not very easy to reconcile all the cases and he was not going to 
 endeavor to do it." 
 
 § 8oi. American view. — ^The American view coincides with that 
 expressed in the English cases quoted. It is generally stated, in Mc- 
 Carthy V. Timmins,^^ where Mr. Justice Hammond speaking for the 
 Supreme Court says : 
 
 "The well-established rule as to the extent of the liability of 
 the master for the act of his servant, so far as is material to this 
 case, is that if the act is done without the authority of the mas- 
 ter and not for the purpose of executing his orders or doing his 
 work, then he is not responsible, but if it is done in the execution 
 of the authority given by the master and for the purpose of per- 
 forming what he has directed, then he is responsible, whether 
 the act be negligent or wilful. The only trouble is in the appli- 
 cation of the rule, and it is not easy to reconcile the cases." 
 
 In Danforth v. Fisher^' the Supreme Court of New Hampshire, by 
 Mr. Justice Young, say : 
 
 "The test to determine whether a master is liable to a stran- 
 ger for the consequences of his servant's misconduct, is to in- 
 quire whether the latter was doing what he was employed to do 
 at the time he caused the injury complained of. If he was, the 
 fact that he was not doing it in the way expected is imma- 
 terial." (citing cases) "But, if at the time he did the act which 
 caused the injury, he was not acting within the scope of his em- 
 ployment, the master is not liable." 
 
 § 802. "Employer," or "master" defined. — Shearman & Redf. on 
 Negligence^* define the position of master as follows : 
 
 "He is to be deemed the master who has the supreme choice, 
 control and direction of the servant, and whose will the servant 
 
 "23 Times h. Reps. (Eng. K. B.) 433. 
 12178 Mass. 378, 59 N. E. 1038. 
 187s N. H. Ill, 71 Atl. Repr. 535 (N. H.). 
 i*Sth ed., sec. 160. 
 
 S3I 
 
§ 803 AGENCY 
 
 represents, not merely in the ultimate result of his work, but 
 in all its details."" 
 
 § 803. "Employee" or "servant" defined.— Judge Cooley" defines 
 servant and describes the relationship of master and servant, as fol- 
 low^s: 
 
 "In strictness, a servant is one who for a valuable considera- 
 tion, engages in the service of another, and undertakes to ob- 
 serve his directions in some lawful business. The relation^'' is 
 purely one of control, and the contract may contemplate or stipu- 
 late for any service and any conditions of service not absolutely 
 unlawful."!* 
 
 § 804. The relation. — Smith, in the Law of Master and Servant" 
 calls especial attention to the fact that the relation of master and serv- 
 ant is contractual in its nature. Speaking of the "complicated inter- 
 course of modern society" the learned author says : 
 
 "It seems to follow inevitably, not only that the relationship 
 of master and servant must exist, but also wherever it does 
 exist in this country, it must be by virtue of some agreement 
 either express or implied, between the parties." 
 
 Dr. Wharton,^" citing English authority, illustrates the relation, as 
 follows : 
 
 "Thus, 'if the master is himself driving his carriage, and 
 from want of skill causes injury to a passer-by, he is of course 
 responsible for that want of skill. If, instead of driving the 
 carriage with his own hands, he employes his servant to drive 
 it, the servant is but an instrument set in motion by the master. 
 It was the master's will that the servant should drive, and what- 
 ever the servant does, in order to give effect to his master'swill, 
 may be treated by others as the act of the master : Qui facit per 
 alium facit per se." 
 
 iBFor distinction between "servants" and "agents" see § 702. 
 leOn Torts, 3d ed., p. 1007. 
 I'ltalics by the author of this book. 
 
 isSee also i Parsons on Contracts (gth ed.), 112; Routledge v. Rambler, 
 95 S. W. Repr. 749 (Tex. Civ. App.), 1906. 
 i^Sth ed., introduction, also chapters I and II. 
 aoQn Negligence, 2d ed., sec. 158. 
 
 532 
 
RESPONDEAT SUPERIOR § 805 
 
 § 805. Relation of employer and chauffeur.^^ — In Hannigan v. 
 Wright^^ Mr. Justice Pennewill charged the jury: 
 
 "The acts of the chauffeur, in operating an automobile, with- 
 in the authority of his employment, are the acts of a servant. 
 The relation of master and servant exists between the chauffeur 
 and his employer, and the rules of law applicable to that rela- 
 tion apply." 
 
 Elsewhere, in the same charge, the court remarked : 
 
 "If you believe from a preponderance of the evidence that 
 the defendant at the time of the accident, was the owner of the 
 automobile that caused the injury to the plaintiff, and that the 
 machine or the person operating it was under the direction and 
 control of the defendant; and shall also believe that the in- 
 juries to the plaintiff were caused by the negligent running and 
 operation of the machine, and that the plaintiff herself was free 
 from any negligence that contributed to the accident, your ver- 
 dict should be in favor of the plaintiff." 
 
 § 806. Tests of doctrine. — It seems to follow from the foregoing 
 that the two principal questions for determination in all cases of 
 respondeat superior, are: (i) the existence of the contractual relation, 
 and (2) whether the act or omission which is the basis of the par- 
 ticular proceeding, was one performed within the scope of that rela- 
 tion. Shearman & Redfield^^ state the matter in this language : 
 
 "In determining whether a particular act is done in the course 
 of the servant's employment, it is proper, first, to inquire whether 
 the servant was at the time engaged in serving his master. 
 
 "If the act is done while the servant is at liberty from serv- 
 ice and pursuing his own ends exclusively, there can be no 
 question of the master's freedom from all responsibility, even 
 though the injury complained of could not have been committed 
 without the facilities afforded to the servant by his relation to 
 his master. On the other hand, where a servant is allowed by 
 his master to combine his own business with that of the master, 
 or even to attend to both at substantially the same time, no 
 
 2iSee § 247, for definition of the word "chauffeur'' in the Massachusetts 
 motor vehicle law, chap. S34, Act of 1909, sec. i. 
 225 Pennew. Del. 537, S40, 63 Atl. 234. 
 280n Negligence, 5th ed., sec. 147. 
 
 533 
 
§ 8o6 AGENCY 
 
 nice inquiry will be made as to which business the servant was 
 actually engaged in when a third person was injured by his 
 negligence, but the master will be held responsible unless it 
 clearly appears that the servant could not have been directly 
 or indirectly serving his master in the act, the negligent per- 
 formance of which caused the injury. And slight deviations 
 from the strict path of service will not suffice to relieve the mas- 
 ter." 
 
 Conversely, where the master is under a duty growing out of a con- 
 tract or "the master stands under a particular duty toward any person 
 by operation of law, if the master commits the performance of that 
 duty to a servant, then the master will be liable to the person concerned 
 with its performance, for its non-performance, although its non-per- 
 formance arises from the act of the servant in abandoning his master's 
 duty to effect some purpose of his own."^* 
 
 The whole doctrine is stated in all its general bearings by Mr. Jus- 
 tice Mitchell, in the frequently quoted case of Morier v. St. Paul, Etc., 
 R.,^^ where the court say : 
 
 "The doctrine of the liability of the master for the wrong- 
 ful act of his servant is predicated upon the maxims respon- 
 deat superior and qui facit per alium facit per se. In fact it 
 rests upon the doctrine of agency. Therefore the universal test 
 of the master's liability is whether there was authority, ex- 
 press or implied, for doing the act; that is, was it one done in 
 the course and within the scope of the servant's employment? 
 If it be done in the course and within the scope of the employ- 
 ment, the master will be liable for the act, whether negligent, 
 fraudulent, deceitful, or an act of positive malfeasance. Smith 
 on Master & Servant, 151. But a master is not Uable for every 
 wrong which the servant may commit during the continuance 
 of the employment. The liability can only occur when that 
 which is done is within the real or apparent scope of the mas- 
 ter's business. It does not arise when the servant steps out- 
 side of his employment to do an act for himself, not connected 
 with his master's business. Beyond the scope of his employ- 
 ment the servant is as much a stranger to his master as any 
 third person. The master is only responsible so long as the 
 servant can be said to be doing the act in the doing of which 
 he is guilty of negligence in the course of his employment. A 
 
 2*Thompson Com. on Negligence, 2d ed, sec. 522. 
 2531 Minn. 351. 
 
 534 
 
RESPONDEAT SUPERIOR § 807 
 
 master is not responsible for any act or omission of his servant 
 which is not connected with the business in which he serves 
 hirj^, and does not happen in the course of his employment. And 
 in determining whether a particular act is done in the course of 
 the servant's employment, it is proper first to inquire whether 
 the servant was at the time engaged in serving his master. If 
 the act be done while the servant is at liberty from the service, 
 and pursuing his own ends exclusively, the master is not re- 
 sponsible. If the servant was, at the time when the injury was 
 inflicted, acting for himself, and as his own master pro tempore, 
 the master is not liable. If the servant step aside from his mas- 
 ter's business for however short a time, to do an act not con- 
 nected with such business, the relation of master and servant is 
 for the time suspended. Such, variously expressed, is the uni- 
 form doctrine laid down by all authorities." 
 
 In Cleghorn v. N. Y. Central, Etc., R.=° Chief Judge Church, says : 
 
 "For injuries by the negligence of a servant while engaged 
 in the business of his master, within the scope of his employ- 
 ment, the latter is liable for compensatory damages; but for 
 such negligence however gross or culpable, he is not liable to 
 be punished in punitive damages unless he is also chargeable 
 with gross misconduct. Such misconduct may be established 
 by showing that the act of the servant was authorized or ratified, 
 or that the master employed or retained the servant, knowing 
 that he was incompetent, or, from bad habits, unfit for the posi- 
 tion he occupied." 
 
 § 807. Unnecessary acts of employee. — It is clearly within the 
 principle of the cases that the employer is liable for an injury done 
 while the employee is acting within the scope of his employment 
 "though the act was not necessary to the performance of the employee's 
 duties, and it was not expressly authorized by the employer or known 
 to him."^^ 
 
 § 808. When punitive damages recoverable against employers.^' 
 — Ks pointed out in another place, ordinarily employers are liable only 
 for compensatory damages, and this on the ground that "the master is 
 not guilty of any offense."^' 
 
 2656 N. Y. 44- 
 
 27Winfrey v. Lazarus, 128 S. W. Repr. 276 (Mo. App.). 
 
 28See § 1766, Damages. 
 
 2!>Joel V. Morrison, 6 Car. & P. 501. 
 
 535 
 
§ 809 AGENCV 
 
 But in cases where the master expressly authorized or approved the 
 servant's act, or stood by and did not prevent it, or was grossly negli- 
 gent in hiring the servant, exemplary damages are permissible.'" 
 
 § 809. Responsibility for an operator who is not hired. — It often 
 happens that a vehicle is operated by a person between whom and 
 the owner there is no actual contract relation of employment, for ex- 
 ample, when the car is being driven by a friend upon invitation or by 
 permission. In such case if the owner is present, the principle of con- 
 trol would govern and the law would imply an agency upon the part 
 of the operator which would render the owner liable for his acts upon 
 the doctrine of respondeat superior.^^ 
 
 And it appears that this liability, upon the same principle, would 
 also extend to occasions where the acts in question were committed 
 or omitted in the owner's absence, if the gratuitous operator was using 
 the car at the time with the owner's sanction in or about the affairs of 
 the owner.'^ 
 
 But if the operator at such time and under such circumstances, was 
 using the machine for his own business or pleasure, he would fall 
 within the class of borrowers and the owner would not be liable.'* 
 
 Even in such cases, however, there might be responsibility on the 
 part of the owner. For example, if the friend was incompetent to 
 handle the vehicle on the highway for any known or obvious reason, 
 or for a reason which in the exercise of proper care, the owner ought 
 to have discovered. Responsibility in this case would attach not on the 
 ground of respondeat superior, but upon that of a duty imposed by 
 law.'^ 
 
 aoSedgwick, Damages, 8th ed., sec. 378; Shearman & Redf. on Negligence, 
 Sth ed., sec. 749. 
 
 siCom. V. Sherman, 191 Mass. 439, 78 N. E. 98; Simeone v. Lindsay, 6 Pen. 
 (Del.) 224, 6s Atl. 778; DuCros v. Lambourne, 76 L. J. N. S. K. B. 50. 
 
 s^Herlihy v. Smith, 116 Mass. 265. 
 
 »«See § 822, Borrowers. Lewis v. Amorous, 3 Ga. App. 50; Doran v. Thomsen, 
 74 N. J. L. 44S, 66 Atl. 897. 
 
 8*Lewis V. Amorous, 3 Ga. App. so, 59 S. E. 338; Doran v. Thomsen, 74 N. J. 
 L. 44S, 66 Atl. 897; State v. Watson, 216 Mo. 420, 115 S. W. ion. 
 
 536 
 
RESPONDEAT SUPERIOR § 8lO 
 
 § 8io. Implied authority of servant."— Dr. Thompson.^" after 
 speaking of the general principles of respondeat superior, says : 
 
 "^The act or omission must have been something done or omit- 
 ted within the scope of the agency or employment of the agent 
 or servant, under an authority actually conferred or one that a 
 stranger might imply from surrounding circumstances."^'' 
 
 § 8ii. Effect of statutes requiring registration, etc.'* — The motor 
 vehicle acts of most of the states, as well as of England and Canada, 
 like Massachusetts,^^ require every automobile vehicle to be registered 
 and numbered, and, while operating, to carry one or more "number 
 plates" conspicuously displaying such register number. The evident 
 purpose of these requirements is that identification of the owner may 
 readily be had in the event of violation of law or the occurrence of ac- 
 cident.*" 
 
 It has been argued from this that by a fair interpretation of the 
 statute, the owner of the machine is intended to be .held responsible in 
 any event when the machine itself is involved, qualified only by the 
 fact that the car at the time was being used with his assent or per- 
 mission. As appears in other sections of this chapter, this view has 
 not been generally accepted. The courts seem to prefer to adhere 
 to the rule of respondeat superior as generally understood. The most 
 advanced expression of the doctrine in the reported cases, is found to 
 be in Mattel v. Gillies,*^ wherein a chauffeur having "general charge" 
 and care of his employer's car, gave a ride to his friends. While so 
 engaged the accident happened owing to negligence. Chancellor Boyd, 
 in deciding the case,, says : 
 
 "Besides this, I am inclined to hold that — having regard to 
 the provisions of the act, as to registration of the owner, the 
 
 85 See § 244, et seq., "chauffeurs." 
 
 aoCom. on Negligence, 2d ed., sec. SiQ- 
 
 sTltalics by the author of this book. Hughes v. Bergen & W., Auto Co., 75 
 N. J. L. 3SS, 67 Atl. 1018. 
 
 88See §§ 83, 1086. 
 
 »9A. 1909, c. 534, s. s. 
 
 *oPeople V. MacWilliams, 91 N. Y. App. Div. 176, 86 N. Y. S. 357, 1904; Ex 
 parte Berry, 147 Cal. 523, 82 Pac. 44; People v. Schneider, 139 Mich. 673, 103 N. 
 W. 172; Com. V. Templeton, 22 Mont. Co. Reps. 203 (Pa.), 1906. See §§ 28, 47. 
 
 *ii6 Ont. L. Reps. 558 (Can.). 
 
 537 
 
§ 8l2 AGENCY 
 
 carrying of a number plate on the machine for the purpose of 
 identification, and the permit granted on these conditions — as 
 between the owner and the public, the chauifeur or driver is 
 to be regarded as the alter ego of the proprietor, and that the 
 owner is liable for the driver's negligence in all cases where the 
 use of the vehicle is with the sanction or permission of the 
 proprietor. In driving the motor he is within the ostensible 
 scope of his employment, and the liability will remain by virtiie 
 of the statute, and this even though the driver may be out on an 
 errand of his own." 
 
 The chancellor, referring to the provision requiring a horn to be 
 sounded "whenever it shall be reasonably necessary to notify pedes- 
 trians or others of the approach," and also to the provision that the 
 vehicle is to be so handled as not to be dangerous to the public "hav- 
 ing regard to all the circumstances of the case, the crowds, etc.," con- 
 tinuing says : 
 
 "As to such and other violations, the owner of a motor for 
 which a permit is issued should be held responsible. That 
 would cover responsibility in regard to fines and penalties im- 
 posed by the act, and may it not also civil responsibility for 
 damages ?*' 
 
 § 812. Ratification of servant's acts. — "One may make himself 
 liable for the unauthorized unlawful act of another by ratification or 
 adoption. Although it has been said in one case that slight acts of 
 ratification will be sufificient, yet the better opinion is that there must 
 be some affirmative act, and that a mere omission to act will not have 
 this effect, especially where to act might prejudice the legal rights of 
 the party. Accordingly, a mere failure to discharge the servant after 
 the happening of the accident complained of, will not have this ef- 
 fect."" 
 
 The fact that the defendant, a physician, attended the plaintiff when 
 run over by the defendant's son is only an act of humanity and falls 
 short of a ratification of the son's acts.** 
 
 *2See also the remarks of Spencer, J., in Ingraham v. Stockmore, 68 Misc. 114 
 118 N. Y. Supp. 399. 
 
 *»Thoinpson Com. on Negligence, 2d ed., sec. 539; Cooley on Torts, 3d ed., 
 pp. 214-217; Nims V. Mt. Hermon School, 160 Mass. 177, 182, 35 N. E. 77^- 
 
 "Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.), 87. 
 
 538 
 
RESPONDEAT SUPERIOR §813 
 
 § 813. Duty of master to select competent servant. — In actions 
 against the master for the injuries growing out of misconduct of the 
 servant, it is relevant to show that the master was negligent in the 
 selection of his servant for the purpose of increasing damages.*' 
 
 As has been elsewhere shown, in most of the states operators of 
 motor vehicles are required to secure hcenses from the public au- 
 thorities, which licenses generally are obtained only after satisfactory 
 examination or demonstration of their competency to operate such 
 vehicles. To a certain extent this, no doubt, relieves the employer 
 from responsibility, but the principle remains that it is for the em- 
 ployer to exercise care and discretion in selecting his chauffeur. The 
 proceedings in which this subject usually arises, are those wherein 
 fellow-servants are involved. Nevertheless, it certainly would be com- 
 petent in any proper case to show that the employer had notice that 
 his chauffeur was a notoriously reckless driver, or addicted to intem- 
 perance, or, through a physical defect such as deafness or near-sighted- 
 ness, incapable of performing his duties in a safe and proper manner. 
 Dr. Thompson*" states the proposition as follows : 
 
 "It is obvious on principle, that if the master owes a duty 
 to any one, whether he has assumed it by contract or whether 
 it has been imposed upon him by operation of law, and if he 
 chooses to undertake the discharge of that duty through the 
 agency of another, he is bound to exercise reasonable care in 
 the selection of a competent and proper agent through whom 
 to discharge it and is answerable if, through negligence, he has 
 failed in making a proper selection whereby there has been a 
 failure of the duty to the injury of such other person. Although 
 this proposition has been doubted, there cannot be any doubt 
 about it on principle."*^ 
 
 Evidence that a minor had been in two previous accidents and that he 
 had paid the damages is admissible to show that he was a reckless 
 driver and that his father knew it.** 
 
 § 814. General reputation for competency of servants. — Evidence 
 of general reputation for competency or incompetency, "is admissible 
 
 ^^Wharton on Negligence, 2d ed., sec. 170. 
 
 **Com. on Negligence, 2d ed., sec. 529. 
 
 *'See Danforth v. Fisher, 75 N. H. iii, 71 Atl. S3S- 
 
 "Linville v. Nissen, 162 N. C. 95 ; 77 S. E. 1096, 4 N. C. C. A. 11. 
 
 539 
 
§ 8l4 AGENCY 
 
 as tending to show notice, as is also the previous record, when ob- 
 tainable by the master. The decided weight of authority supports the 
 proposition that the ultimate fact of unfitness cannot be established 
 by proof of general reputation for incompetency. Reputation is but 
 a suggestion of what actual investigation will disclose. If the dis- 
 closed fact does not accord with the reputation, the latter cannot be 
 proof of a fact which exists only as a rumor."*^ 
 
 In Monahan v. Worcester (City)°° Mr. Justice Field remarks: 
 
 "The offer of the plaintiff to show that McL,oughlin "was 
 generally reputed to be infirm in the sense of sight and hearing 
 and in physical strength,'^^ was made for the purpose of prov- 
 ing that the defendant either knew of these infirmities, or by 
 the exercise of reasonable care would have known of them, if 
 the jury found from other evidence that McLoughlin was infirm 
 in these respects, for this purpose, in our opinion, the evidence 
 was competent. The master is bound to use reasonable care in 
 selecting his servants, and if a person is incompetent for the 
 work he is employed to do, the fact that he is generally reputed 
 in the community to want those qualities which are necessaiy 
 for the proper performance of the work certainly has some 
 tendency to show that the master would have found out that the 
 servant was incompetent, if proper means had been taken to 
 ascertain the qualifications of the servant. We cannot say that 
 it may not be a matter of common repute in a community that a 
 man is physically weak, and is partially blind and deaf." 
 
 In Driscoll v. Fall River,^^ by Mr. Justice Morton, the court say : 
 
 "A general reputation regarding the incompetency of a serv- 
 ant is admissible on the ground that it furnishes some reason 
 to believe that, if the master had exercised due care, he might 
 have learned or heard of the incompetency. But tiie reputa- 
 tion of a foreman amongst a few workmen employed under him 
 is not a general reputation. It is merely the opinion of a small 
 number of men, of which there is no sufficient reason to suppose 
 the master may be cognizant, or which he may be bound to 
 heed." 
 
 *sBarrows on Negligence, Sec. 38. 
 BOiso Mass. 439, 23 N. E. 228. 
 siltalics by the author of this book. 
 "52163 Mass. 105, 107, 89 N. E. 1003. 
 
 S40 
 
WHEN EXISTS § 815 
 
 An oiifer to show that defendant's chauffeur was a competent and 
 careful driver is properly rejected even on the question of punitive 
 damages where not in issue under the pleadings. The master is equally 
 liable whether the servant is skilful or unskilful unless he was so in- 
 competent that it was negligent to let him drive at all.=^ 
 
 § 815. General reputation for intemperance. — In Oilman v. East- 
 ern R. Co. :"— 
 
 "The jury were instructed that the plaintiff could not recover 
 without proving, ist, that Shulte" (the employee) "was in- 
 competent by reason of his habits of intoxication; 2d, that his 
 habits were so well known that the officers of the defendants 
 knew or in the exercise of due care would have known them." 
 Objection was made "that the admission of evidence that Shute 
 had the general reputation of being intemperate was erroneous. 
 But such evidence was admitted, * * * ^ot for the purpose 
 of showing that he was intemperate, but for the purpose of 
 proving that his habitual intemperance, which there was other 
 evidence tending to prove, was well known in the community. 
 This fact was competent to show that the defendants, if they 
 used due care, must have known that he was habitually intem- 
 perate, and therefore an unsuitable servant to be employed by 
 them." 
 
 § 816. Liability of operator. — The agent is personally liable for 
 tortious acts committed in the scope of his employment." 
 
 A declaration against the owner and his chauffeur may be properly 
 amended by entering a non-suit as against the owner and charging 
 that the acts were done by the chauffeur in his individual capacity."" 
 
 II. When Agency Exists. 
 
 § 817. Guest as agent. 
 
 818. Guest of driver cannot recover against owner. 
 
 819. Guest of driver not liable. 
 
 820. Defendant allowing guest to drive. 
 
 821. Driving under direction of guest of owner. 
 
 822. Borrowers — ^permitting use of car and chauffeur. 
 
 823. Municipal employee. 
 
 "sAdler v. Martin, 179 Ala. 97, 59 So. 597. 
 ''*9S Mass. 433, 444. 
 
 "Wadley v. Dooly, 138 Ga. 275 ; 75 S. E. 153- 
 ssWadley v. Dooly, 138 Ga. 27S ; 75 S. E. 153- 
 
 S4I 
 
§ 8l7 AGSNCY 
 
 824. Servant acting gratuitously. 
 
 825. Taxicab drivers. 
 
 826. Authority of officer of corporation to purchase, hire or operate auto- 
 mobile. 
 
 § 817. Guest as Agent. — One driving an automobile may be the 
 agent of the owner although he is a guest where he is requested to 
 drive the car by one partner with the acquiescence of another for 
 them.'' Where the defendant's car was being driven on a pleasure 
 trip without his knowledge by a guest of the family with the defend- 
 ant's wife, neither the defendant nor his wife are liable.^' 
 
 The driver may be found the agent of the owner where the latter 
 had invited guests to his cottage and they urged him to take them for 
 a ride. He at first refused but finally gave them the key to the auto- 
 mobile and told them they could go but he wished they would not and 
 suggested they not be gone long. The defendant knew that one of his 
 guests who was a licensed chauffeur would drive the car and they 
 drove away in his presence. The court remarks that the case is a 
 close one."' 
 
 § 818. Guest of driver cannot recover against owner. — ^Where a 
 father gives permission to his son to take his automobile on a pleasure 
 drive with friends provided he has one S a neighbor drive the car and 
 he does so the father is not liable to a guest invited by S and injured 
 by the negligence of S in driving the car.'" 
 
 In Bowler v. O'Connel" the facts were that while leading a colt from 
 its stall to the water trough, which seems to have been in the line of his 
 duty, and within the scope of his employment, the employee, Frank, 
 of his own accord, invited the plaintiff, a child, to ride upon the horse. 
 Plaintiff accepted the invitation and was injured. The invitation was 
 
 s'Sloan V. Pasche, Tex. Civ. App. 153 S. W. 672. 
 
 ssArmstrong v. Sellers, 182 Ala. 582, 62 So. 28, 9 N. C. C. A. 836, following 
 Parker v. Wilson, 179 Ala. 361, 60 So. 150. 
 ssCampbell v. Arnold, 219 Mass. 160 ; 106 N. E. 599- 
 ■oPowers v. Williamson, (Ala. 191S). 66 So. 585. 
 81 162 Mass. 319, 38 N. E. 498. 
 
 542 
 
WHEN EXISTS § 8l8 
 
 given "without the knowledge or authority of or direction from the de- 
 fendants." The court, by Mr. Justice Allen, say :*^ 
 
 "Under this state of things, we are unable to see how the in- 
 vitation by Frank to the plaintiff to ride upon the colt, although 
 given while Frank was engaged in his employment, can be an 
 act done in the course of such employment, or for the purpose 
 of doing the business of his masters. The true test of the lia- 
 bility on the part of the defendants is this : was the invitation 
 given in the course of doing their work, or for the purpose of 
 accomplishing it? Was the act done for the purpose, or as a 
 means of doing what Frank was employed to do? If not, then 
 in respect to that act he was not in the course of the defendants' 
 business. 
 
 An act done by a servant while engaged in his master's work, 
 but not as a means of or. for the purpose of performing that 
 work, is not deemed to be the act of the master. And, under 
 this rule, in view of the testimony, the defendants were not re- 
 sponsible for the consequences of Frank's invitation to the plain- 
 tiff to ride upon the colt. There may be cases where injuries 
 result from accepting unauthorized invitations to ride which do 
 not fall within the above rule, and are to be distinguished. 
 Such cases may be found in the books and need not be con- 
 sidered here, the circumstances being different. 
 
 Under the circumstances disclosed in the present case, it was 
 not competent for the jury to find that the invitation given to the 
 plaintiff to ride was within the scope of Frank's employment, 
 and for this reason there must be a new trial." 
 
 Where an automobile selling company loans its automobile and driver 
 to one of its employees for a certain definite trip it is not liable to a 
 guest of the employee riding without its knowledge."' 
 
 B^The court cite a long line of Massachusetts decisions, and the following 
 cases in other jurisdictions : 
 
 Mitchell V. Crassweller, 13 C. B. 237; Croft v. Alison, 4 B. & Aid. 590; 
 Limpus V. London Gen. Om. Co., i H. etc., 526; Barwick v. Eng. Joint S. B. 
 L. R. 2 Ex. 259, 26s; Storey v. Ashton, L. R. 4 Q. B. 476; British Mut. Banking 
 Co. V. Charnwood, etc., R., 18 Q. B. D. 714; Snyder v. Hannibal & St. J. R. 
 60 Mo. 413, 419; Morier v. St. Paul, M. & M. R., 31 Minn. 351; Davis v. 
 Houghtelin, 33 Neb. 582, 50 N. W. 765, 14 L. R. A. 737. See also Tuller v. 
 Talbot, 23 111. 3S7; Robinson v. McNeill, 18 Wash. 163, 51 Pac. 355; Chadbourne 
 V. Springfield St. Ry., 199 Mass. 574, 85 N. E. 737- 
 
 ^'Kennedy v. R. & L. Co., 224 Mass. 207, 112 N. E. 872. 
 
 543 
 
8l9 AGENCY 
 
 § 819. Guest of driver not liable. — A guest of the driver is not 
 liable for the driver's negligence."* 
 
 § 820. Defendant allowing guest to drive. — The defendant is 
 liable where he is taking friends on a pleasure ride and allows one of 
 them to drive his car as the car was here clearly being used in further- 
 ance of the undertakings of the defendant.®' 
 
 § 821. Driving under direction of guest of owner. — If the owner 
 of a car invites a friend to ride without the owner accompanying him 
 and instructs the chauffeur to go wherever the friend directs the 
 chauffeur remains the servant of the owner and not of the passenger."" 
 
 § 822. Borrowers — permitting use of car and chauffeur."' — In 
 the absence o,f statute, when the owner or person in possession of a 
 motor vehicle, merely permits another to use it, the latter does not 
 thereby become the agent or servant of the former, so as to charge the 
 owner with the borrower's negligence."® 
 
 In Doran v. Thomsen'" Mr. Justice Trenchard says : 
 
 "The first and third counts plainly disclose no cause of ac- 
 tion. They are apparently based upon the erroneous assump- 
 tion that, because the defendant loaned his motor vehicle to 
 some one over whom he had no direction or control at the time 
 of the accident, he shall be held liable, for the mere loaning. 
 But no such liability rests upon him. An owner of a vehicle is 
 not liable for an injury caused by the negligent driving of a 
 borrower, if it was not used at the time in the owner's busi- 
 ness. Herlihy v. Smith, 116 Mass. 265; New York, Etc., R. 
 Co. V. New Jersey Electric R. Co., 60 N. J. Law 338, 41 Atl. 
 1 1 16, 43 L. R. A. 849. These counts contain no allegation that 
 the vehicle was used at the time in the owner's business ; nor is 
 
 '*Jerome v. Hawley, 131 N. Y. S. 897, 147 App. Div. 47s. 
 
 8»Louisville Lozier Co. v. Sallee, Ky., 180 S. W. 841, distinguishing 
 Hartley v. Miller, 165 Mich. 115, 130 N. W. 336, 33 L- R- A. N. S. 81, and 
 Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L,. R. A. (N. S.), 970- 
 
 8"Pease v. Gardner, 113 Maine 264; 93 Atl. 550. 
 
 s'See § 809. For discussion of the doctrine of "Dangerous Agency" in this 
 connection, see Chapter XVI. 
 
 BSLiability of owner of automobile for negligence of borrower note, i 
 N. C. C. A. 126-132 note. 
 
 89Ivewis V. Amorous, 3 Ga. App. 50, 59 S. E. 338. 
 
 7074 N. J. I,. 445, 66 Atl. 897, 898; 192 L. R. A. N. S. 335, 131 Am. St. Rep. 
 677. 
 
 544 
 
WH^N EXISTS § 822 
 
 there any allegation therein that the vehicle was under the con- 
 trol or management of the defendant, or that the person driving 
 it was under the control of the defendant, or that the relation- 
 ship of master and servant existed between the defendant and 
 the driver."" 
 
 In Herlihy v. Smith" quoted in Doran v. Thomsen, supra, Smith 
 had loaned his team to one Phillips, who negligently injured the plain- 
 tiff. Plaintiff sued Smith as owner, alleging Phillips to be his agent. 
 The presiding judge ruled "that if the defendants merely allowed the 
 said Phillips, for the performance of his own business in which they 
 had no interest, to use the horse and carriage temporarily, whether for 
 hire or gratuitously, they would not thereby become responsible for the 
 injury done to another by negligent in the use of such horse and ve- 
 hicle." The Supreme Court say "the ruling at the trial was correct. 
 The case is too plain for discussion." In Parsons v. Wisner'* the de- 
 fendant had loaned his automobile to his brother several months prior 
 to the occurrence of the accident, and himself was absent from the 
 state. The brother was operating the machine at the time of the ac- 
 cident, by his own chauffeur. Plaintiff sought to fasten responsibility 
 upon the absent owner, claiming the chauffeur to have been the latter's 
 agent. The court held that from the evidence it appeared that the 
 chauffeur : 
 
 "Was not in the employ of the defendant and never had been 
 in his employ, and that he was not engaged in the business of 
 the defendant, or under his direction and control at that time. 
 The case comes within the rule laid down in Cunningham v. 
 Castle, 127 N. Y. App. Div. 580." 
 
 Where an owner of a car loans it together with a driver furnished 
 by a garage to his brother, the driver is not the agent of the owner in 
 returning the car to the garage.'* 
 
 Even when one borrows an automobile from the owner and takes 
 the owner with him as an invited guest the owner is not liable where 
 
 ^iSee also Hughes v. Bergen & W. Auto Co., 73 N. J. L. 3S5, 67 Atl. 1018; 
 Cunningham v. Castle, 127 N. Y. App. Div. 580, iii N. Y. S. 1057. 
 ^2ii6 Mass. 265. 
 
 '^113 N. Y. Supp. 922, 52 Misc. 612. 
 
 7*Neff V. Brandeis, 91 Neb. 11, 135 N. W. 232, 39 L. R. A. N. S. 933- 
 
 545 
 35 
 
§ 823 AGENCY 
 
 he had nothing to do with the control of the car and did not in fact 
 know how to run it J° 
 
 But where the owner loans to a friend both the car and his chauffeur 
 a different question arises and the question of his liability is for the 
 jury/' and a finding that the chauffeur was the agent of the owner at 
 the time may be justified.''' 
 
 § 823. Municipal employee. — Whether a city is liable for the neg- 
 ligence of city employees in driving its automobiles depends on whether 
 they are at the time acting as public officers or for the city in its private 
 capacity as a corporation.''' 
 
 For example a city is not liable for the negligence of a driver of a 
 fire engine while driving to a fire as this is a public or governmental 
 duty.'' 
 
 But the city is liable for the negligence of an employee in its water 
 department running an automobile in its business as the water system 
 is a corporate enterprise.'" So a city is liable where its automobile 
 driven by its superintendent of streets on his way to repair a defect 
 injures the plaintiff.'^ 
 
 Where a city voluntarily organizes a public library the conveyance 
 of books from one library building to another by means of an automo- 
 bile along the public highways by employees of the city is plainly a 
 ministerial duty and the city is liable for negligence in its perform- 
 ance.'^ This liability is as between the city and the library on the city.'' 
 
 Automobilists cannot sue a municipality for injuries caused by the 
 negilgence of a draw tender in handling a town draw-bridge as in do- 
 ing so the draw tender was a public officer.'* 
 
 TBHartley v. Miller, 165 Mich. 115, 130 N. W. 336, 33 L. R. A. N. S. 81; i 
 N. C. C. A. 126. 
 
 Tspitzgerald v. Russell, 140 N. Y. S. SiP, ISS App. Div. 854. 
 
 "■Cowell V. Saperston, 134 N. Y. S. 284, 149 App. Div. 373. 
 
 ''^A police officer was held to be a city employee entitling him to compen- 
 sation as such in Blynn v. Pontiac (Mich. Ind. Ace. Bd.), 151 N. 'W. 681, 5 N. C. 
 C. A. 910. 
 
 T'Engel V. Milwaukee, 138 Wis. 480, 149 S- W. 141. 
 
 '"Williams v. Kansas City, Mo. App., 177 S. W. 783, 1915. 
 
 BiHewitt V. Seattle, 62 Wash. 377, 113 Pac. 1084. 
 
 82 Johnston v. Chicago, 258 111. 494, loi N. E. 960; 45 L. R. A. N. S. 1167, 4 
 N. C. C. A. 40. 
 
 "Johnston v. Chicago, 258 111. 494, loi N. E. 960; 4S h. R. A. N. S. 1167, 4 N. 
 C. C. A. 90. 
 
 8*Hawes v. Milton, 213 Mass. 446; 100 N. E. 665. 
 
 546 
 
WHEN EXISTS § 824 
 
 § 824. Servant acting gratuitously.— If the defendant asks one of 
 his servants who has no duties in regard to the automobile to fix it for 
 him the fact that the servant does so gratuitously does not free the de- 
 fendant from liability if the servant injures the plaintiff while testing 
 the car.^' 
 
 § 825. Taxicab drivers. — A certain taxicab company had taxicabs 
 driven by boys who were getting 20 per cent, of what the automobiles 
 earned for their pay for driving. All the cars were kept in the 
 garage owned by the company which furnished lights and gasoline and 
 which claimed that the drivers were independent contractors for whose 
 negligence they were not responsible. The court holds that a corpora- 
 tion chartered for certain definite purposes cannot evade its responsi- 
 bihties by delegating its authority to others. The object of the licenses 
 and numbers required by the motor vehicle law is for the identification 
 of the owner and to fix the liability in case of accidents or violations of 
 law and if a person or corporation could escape liability by leasing or 
 renting cars to drivers on a percentage basis the law fails.'" 
 
 § 826. Authority of officer of corporation to purchase, hire, or 
 operate automobile. — Corporate officers in dealing with automobiles 
 will in general be held to bind the corporations they represent by any 
 acts necessary or proper for the corporation business. 
 
 A secretary of a corporation engaged in the real estate business has 
 ostensible authority to buy an automobile as automobiles are almost 
 indispensable to that business.*' The general manager of a corporation 
 engaged in buying and selling irrigation farm lands has implied au- 
 thority to purchase automobiles necessary or useful in its business.'* 
 
 One suing for hire of an automobile can prove the agency of the 
 president of the defendant corporation by showing that it owned certain 
 lots of land which it was selling and used the automobiles he hired to 
 show the lots to prospective purchasers.** 
 
 ssColIey V. Lewis, 7 Ala. App. 593, 61 So. 37. 
 
 86King V. Brenham Automobile Co., Tex. Civ. Ap'p., 14S S. W. 278 (citing text 
 s. 47). The same result has been reached in England, See Rex v. Solomon, 2 K. 
 B. (1909), 980. 
 
 87Meister & Sons Co. v. Wood Co., 26 Cal. App. 584, 147 Pac. 981. 
 
 ssWestern Investment & Land Co. v. First Nat. Bank, 23 Colo. 143, 128 Pac. 
 
 476. 
 8'Merrill v. Caro Inc. Co., 70 Wash. 482, 127 Pac. 122. 
 
 547 
 
§ 827 AGENCY 
 
 Where a contract with a sales agent to sell cash registers necessarily 
 implies that the agent shall use some sort of a conveyance to transport 
 customers to inspect the registers and to transport the registers the 
 company is responsible for his negligence in doing so.^" 
 
 A real estate company may be liable for the act of its driver while 
 driving its automobile taking a real estate agent and a prospective cus- 
 tomer to inspect the lands of the company .'^ 
 
 III. Evidence of Agency. 
 
 § 827. Relation how proved. 
 
 828. Presumption arising from master's presence. 
 
 829. Ownership of car and employment of driver. 
 
 830. Ownership and fact that car on owner's business enough. 
 
 831. Evidence of registration. 
 
 832. Possession and registration. 
 
 833. Name inscribed on car or on chauffeur's uniform. 
 
 834. Evidence that driver the servant of another. 
 
 835. Owner's failure to deny agency. 
 
 836. Functions of the jury. 
 
 § 827. Relation hovi^ proved. — "The fact of agency as well as the 
 powers of an agent, may be proved by facts and circumstances just 
 as any other fact may be proved. So it is not necessary to prove an 
 express contract of employment in order to establish the relation of 
 master and servant, but the relation may be implied from circum- 
 stances, as where the person committing the wrong, was at the time 
 in the actual conduct of the business of another with his seeming 
 consent, in which case that other will be responsible for the wrong 
 done by the former within the scope of the apparent employment, on 
 the ground that he has induced the belief that such person is his serv- 
 ant and has led another to act upon that belief to his injury.""^ 
 
 Evidence that defendant's store was open for business on Sunday, 
 the day of the accident and that his wagon was coming from the di- 
 
 soLewis v. National Cash Register Co., 84 N. J. L. S98; 87 Atl. 34S; 4 N. C. 
 C. A. 6. 
 siStovall V. Corey Highlands Land Co., 189 Ala. 576, 66 So. 577, 9 N. C. C. A. 
 
 833- 
 
 o^Thompson Com. on Negligence, 2d ed., sec. 580; Shearman & Redf. on 
 Negligence, sth ed., sec. 158; Diehl v. Roberts, 134 Cal. 164, 66 P. 202; Perlstein 
 v. American Exp. Co., 177 Mass. 530, 59 N. E. I94; Gershel v. White's Exp. Co., 
 113 N. Y. Supp. 919, App. Term. 
 
EVIDENCE OE § 828 
 
 rection of the street on which the store was located raises a fair infer- 
 ence that the wagon was being operated on defendant's business at that 
 tirne.'^ 
 
 § 828. Presumption arising from, master's presence. — If the mas- 
 ter is being driven by his servant there is a strong "prima facie pre- 
 sumption," and it may be inferred without other proof, that the servant 
 is engaged in the master's business and is subject to his control.** 
 
 In the case cited. Presiding Judge Rice, quotes Bayley, B., in Chand- 
 ler V. Broughton,'^ as follows : 
 
 "There is no case militating against the position that where 
 the owner of a carriage is sitting by the side of his servant, the 
 act of the servant in driving is the act of the master, and the 
 trespass oi the servant is the trespass of the master. The rea- 
 son is, that the master has the immediate control over the serv- 
 ant." 
 
 Difficulty in fastening responsibility does not often arise in cases 
 where the employer is present at the occurrence of the injury. It is 
 found in instances which arise in his absence — when the influence of 
 personal direction and management is relaxed. 
 
 § 829. Ownership of car and employment of driver. — There is 
 much confusion in the courts as to what evidence suffices to raise a 
 prima facie case. 
 
 Whether evidence of ownership of the automobile by the defendant 
 is sufficient is doubtful. It is we believe the better rule that evidence 
 that the defendant was the owner of the automobile and that a third 
 person was driving, it is not enough to prove that the defendant is 
 liable. There must be some affirmative evidence of the relation of 
 master and servant and that the servant was acting within the scope 
 of his employment at the time of the accident.^" 
 
 93 Williams v. Ludwig Floral Co. (Pa. 1916), 97 Atl. 206. 
 
 »«Kelton V. Fifer, 26 Pa. Super. Ct. 603. 
 
 '^2 L. J. N. S. 1833, Exch. (Pleas) 25. To the same effect see Watkins v. 
 Brown, 14 Ga. App. 99, 80 S. E. 212. Winner v. Linton, 120 Md. 276; 87 Atl. 674, 
 4 N. C. C. A. 4. 
 
 °8The doctrine in Maryland and Missouri is not approved. Lamanna v. 
 Stevens, Del. Super. Ct., 1915, 93 Atl. 962. White Oak Coal Co. v. Rivoux, 88 
 Ohio St. 18, 102 N. E. 302, 46 L. R. A. N. S. 1091; Ann. Cas. 1914 C. 1082; see 
 contra, Schreiber v. Matlack, 154 N. Y. S. 109, go Misc. 667; Purdy v. Sherman, 
 
 549 
 
§ 829 AGENCY 
 
 In Perlstein v. American Express Co.°^ the court, by Mr. Justice 
 Knowlton, say : 
 
 According to the great weight of authority however the fact the 
 automobile is admitted to belong to the defendant and that the driver 
 is in the employ of the defendant is sufficient to put the defendant 
 upon proof that the automobile was not used in his business or for his 
 employment.*' If he is not so operating it this is a fact peculiarly 
 within the knowledge of his employer and the burden is on him to over- 
 throw the presumption.'' 
 
 74 Wash. 309, 133 Pac. 440; Birch v. Abercombie, 74 Wash. 486, 133 Pac. 1020, 
 SO L. R. A. (N. S.) S9> and Long v. Nute, 123 Mo. App. 204, 100 S. W. 511. See 
 Freibaum v. Brady, 128 N. Y. S. 121, 143 App. Div. 220. There is no presumption 
 from the mere physical possession of a registered automobile that the operator 
 was the servant or agent, of the owner. Trombley v. Stevens-Duryea Co., 206 
 Mass. S16; 92 N. E. 764; 2 N. C. C. A. 806; 8 N. C. C. A. 1087. See Cullen 
 V. Thomas, i^s N. Y. S. 22, 150 App. Div. 475. Some Pennsylvania cases have 
 held that evidence of ownership of an automobile raises a prima facie case against 
 the owner, but the presumption is very slight. See Lotz v. Harden, 217 Pa. 339, 
 66 Atl. 52s, 10 L. L. K. A. N. S. 202, 118 Am. St. Rep. 922, 10 Am. Cas. 731, 
 where presumption said to be very slight. 
 
 9^177 Mass. S30, 59 N. E. I94- 
 
 981/Udberg v. Barghoorn, 73 Wash. 476, 131 Pac. 1165; Ward v. Teller Reser- 
 voir and Irrigation Co., Colo, 1916, 153 Pac. 219; Classman v. Harry, 182 Mo. 
 App. 304 ; 170 S. W. 403 ; Stewart v. Baruch, 103 App. Div. 577, 93 N. Y. S. 
 161 ; Studebaker Bros. Co. v. Kitts, Tex. Civ. App., 152 S. W. 464, 6 N. 
 C. C. A. 63; Christensen v. Christiansen, Tex. Civ. App., 155 S. W. ggS, 
 4 N. C. C. A. 32; Benn v. Forrest, 213 Fed. 763,. 130 C. C. A. 277, 3d Cir., 8 
 N. C. C. A. 54; The contrary view has been set forth as follows that even 
 proof of the additional fact that the operator was an employe of the 
 owner does not raise a presumption of negligence against him unless it appears 
 that the duties of the employe are in connection with the automobile or that 
 he was operating the same with the authority— express or implied— of the 
 owner White Oak Coal Co. v. Rivoux, 88 Ohio St. 18; 102 N. E. 302, 46 L. R- 
 A. N. S. 1091, Ann. Cas. 1914 C. 1082; Premier Motor Mfg. Co. v. Tilford, 
 Ind., 1916, III N. E. 64s; Curran v. Lorch, 243 Pa. 247, .9° Atl. 62; 
 Sarver v. Mitchell, 35 Pa. Superior Ct. 69; Luckett v. Reighard, 24S 
 Pa. 24, 93 Atl. "JT^. It is not the rule in Massachusetts 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 when the chauffeur is driving unaccompanied by the defendant he was 
 acting within the scope of his employment. Hartnett v. Gryzmish, 218 Mass. 
 258; 105 N. E. 988, otherwise in N. Y. See Stewart v. Baruch, 103 App. Div. 
 577, 93 N. Y. Suppl. 161. 
 
 °'Kahn v. Home Telephone Co., Oregon, 1916, 152 Pac. 240. 
 
fiVIDENCB OP § 830 
 
 Where the sole evidence for the plaintiff that the defendant's servant 
 was at the time of the accident driving on the defendant's business is 
 the legal presumption to that effect and this is contradicted by the de- 
 fendant's employees, this question of fact remains for the jury.'°° 
 
 § 830. Ownership and fact that car on owner's business enough. 
 — ^Where the defendant's automobile while on defendant's business 
 causes the accident it is immaterial who the chauffeur was.^ 
 
 § 831. Evidence of Registration. — Where an automobile which 
 causes injury carries a special license conditioned that the car should 
 be used for demonstrating purposes only this raises a presumption that 
 the car was operated by the defendant in an accident case.^ 
 
 Where an automobile belonging to the father is illegally registered in 
 the name of tlie son the fact that it is operated by the son with the 
 father's permission is sufficient to charge him with liability. It is not 
 necessary to show that it was being operated within the scope of the 
 son's employment.^ 
 
 The license number of the car coupled with the evidence that the de- 
 fendant held the license was prima facie proof that the defendant was 
 the owner and that the custodian of the car was then engaged in his 
 business.* 
 
 § 832. Possession and Registration. — There is a direct conflict of 
 authority on the question whether a presumption arises from the pos- 
 session and registration of an automobile. 
 
 One line of cases holds that there is in general no presumption from 
 the mere physical possession and registration of an automobile that the 
 operator was the servant of the owner.^ 
 
 looKahn v. Home Telephone & Telegraph Co., Oregon, 152 Pac. 240; Stewart 
 V. Baruch, 103 N. Y. App. Div. 577, 93 N. Y. S. 161. 
 
 iBowling V. Roberts, 235 Pa. 89; 83 Atl. 600. 
 
 2Haring v. Connell, 244 Pa. 439, 90 Atl. 910. 
 
 sGouId V. Elder, 219 Mass. 396; 107 N. E. 59- 
 
 *Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406. 
 
 sTrombley v. Stevens Duryea Co., 206 Mass. 516, 519; 92 N. E. 764, 76S. 
 contra Ingraham v. Stockamore, 63 Misc. 114, 118 N. Y. Suppl. 399. See Mat- 
 tel V. Gillies, 16 Int. L. R. SS8, resting upon the peculiar terms of a local 
 statute. Colwell v. Aetna Bottle & Stopper Co., 33 R- I- S3i, 82 Atl. 388; 
 2 N. C. C. A. 430. Where the only evidence as to the ownership or control 
 of an automobile is that it was registered in the name of the defendant an 
 instruction is erroneous which assumes that it was operated by the defendant 
 
 551 
 
§ 833 AGENCY 
 
 The contrary view is also held by leading courts that the license 
 number is prima facie proof that the custodian of the car was engaged 
 in his master's service." 
 
 § 833. Name inscribed on car or on chauffeur's uniform.— It 
 may be sufficient that the defendant's name appeared on the chauffeur's 
 hat and on the car/ or on his uniform/ or that it appeared on the car 
 and there was evidence that the chauffeur was in the defendant's em- 
 ployment/ 
 
 § 834. Evidence that driver the servant of another. — Evidence 
 that the driver was the servant of the lessee of the car may exonerate 
 the owner/" 
 
 § 835. Owner's failure to deny agency.. — The fact that the de- 
 fendant does not deny the agency of the driver is sufficient proof that 
 he had authority.^^ 
 
 § 836. Functions of the jury. — Where the evidence of ownership 
 and the relation of master and servant is conflicting, and where the 
 servant is acting within the scope of his employment, the case is prop- 
 erly to be submitted to the jury.^^ Whether the chauffeur was a serv- 
 ant or a lessee is a question for the jury,^^ as where the question is 
 whose servant the chauffeur was.^* 
 
 The question whether the chauffeur is acting within the scope of his 
 authority is generally one of fact for the jury and not a question of 
 law for the court/^ The court has no right to direct a verdict where 
 there is conflicting evidence as to material issues as for example on the 
 question whether the chauffeur is acting within the scope of his em- 
 ployment.'" 
 
 or his agent for him in the course of his employment. Warrington v. Bird, 
 167 Mo. App. 468, 151 S. W. 754. 
 
 ^Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406; Ingraham v. Stockamore, 63 
 Misc. 114, 118 N. Y. Suppl. 399; Patterson v. Millican, 12 Ala. App. 324, 66 So. 
 914. 
 
 ''Curley v. Electric Vehicle Co., 68 N. Y. App. Div. 18, 74 N. Y. Supp. 35. 
 
 ^Bohan v. Met. Express Co., 122 N. Y. App. Div. 590, 592, 107 N. Y. Supp. 530. 
 
 »Lawson v. Wells Fargo, App. Term, 113 N. Y. Supp. 647. 
 
 loHornstein v. Southern Boulevard Ry. Co., 138 N. Y. S. 1080, 79 Misc. 34. 
 
 iiMcEnroe v. Taylor, 56 Misc. 680, 107 N. Y. S. s6S- 
 
 isRitchie v. Walker, 63 Conn. 155, 28 Atl. 29. Quoted at § 882. 
 
 iswind V. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. N. S. 1178. 
 
 i*Ottomeier v. Hornburg, 50 Wash. 316, 97 Pac. 235. 
 
 i^Ward v. Teller Reservoir & Irrigation Co., Colo., igi6, 153 Pac. 219. 
 
 iBFielder v. Davison, 139 Ga. 509, 77 S. E. 618. 
 
 552 
 
WHO IS PRINCIPAI, § 837 
 
 But the court might well direct a verdict for the defendant where 
 the evidence is undisputed that the driver at the time of the injury was 
 not engaged in any business for the owner but was about his own 
 business or pleasure.^^ Where a verdict was manifestly wrong and it 
 appears clear that the defendant, although the owner of an automobile, 
 was not in possession or management of it, and that the chauflEeur was 
 not acting as his servant at the time of the accident, the verdict for the 
 plaintiff will be set aside on appeal.^* 
 
 IV. Who Is Principai,. 
 
 § 837. Statutes imposing liability on owner. 
 
 838. Application to master of statutes impsing duty of care. 
 
 839. Co-partnership and associations. 
 
 840. Corporations. 
 
 841. Infants as employers. 
 
 842. Infants in negligence cases. 
 
 843. Joint owners. 
 
 844. Lunatic. 
 
 84s. Mortgagee in possession of business. 
 
 § 837. Statutes imposing liability on owner. — A statute render- 
 ing on "owner" of a motor vehicle liable for injury done while it is 
 driven by anyone unless it has been stolen is unconstitutional when ap- 
 plied to a case where the machine is taken without authority and with- 
 out negligence on the part of the owner. Holding one liable for the 
 negligence of a mere stranger or trespasser is a taking of property 
 without due process of law." So a father is not liable where his minor 
 son takes his automobile without permission, a statute imposing liability 
 being void when applied to such a case.^° 
 
 Where a statute provides that the "owner" of a motor vehicle shall 
 be Uable for any injury occasioned by its negligent operation by any 
 person unless it has been stolen the word "owner" means proprietor 
 
 "Linville v. Nissen, 162 N. C. 95, ^^ S. E. 1096, 4 N. C. C. A. 11. 
 
 "Pease v. Montgomery, in Maine 582; 88 Atl. 973. 
 
 i^Daugherty v. Thomas, 174 Mich. 371, 140 N. W. 615, 45 L. R. A. N. S. 699; 
 
 Ann. Cas. 191S A. 1163. 
 2»Ivoehr V. Abell, 174 Mich. 590, 140 N. W. 926. 
 
 553 
 
§ 838 AGENCY 
 
 and does not include one taking the machine without authority with no 
 intent to steal.''^ 
 
 The word "stolen" means taken with intent to steal and does not 
 cover merely a taking without authority.''^ 
 
 In an earlier case the court sustains without discussion the validity 
 of a statute rendering the owner liable for the negligent operation of 
 an automobile unless it has been stolen.^^ 
 
 Under a statute rendering the owner of an automobile liable unless 
 it has been stolen there is no need of suing the driver and obtaining 
 judgment before suing the owner.^* 
 
 § 838. Application to master of statutes imposing duty of care. 
 — ^A statute providing that "all persons owning, operating or controlling 
 an automobile * * * shall use the highest degree of care." and 
 shall be liable for failure to do so makes the owner liable for the breach 
 of his agent driving within the scope of his employment. The statute 
 is in derogation of the common law and as such should be strictly con- 
 strued but its obvious intent was to include the employer.^' 
 
 § 839. Negligence by partners and associations. — In the case of 
 partnerships, joint agents, and associations not incorporated, the indi- 
 viduals, composing them, in contemplation of law, are as between them- 
 selves "agents for. each other within the scope of their articles of or- 
 ganization, "and generally as towards the public; consequently, the 
 negligence of one * * * is the negligence of the other."^° 
 
 Where a charge to the jury bases the liability of co-partners on the 
 question whether the driver was acting as their agent, it is not error 
 to refuse a special charge requested to the effect that if he was not 
 their agent the partners were not liable.^' 
 
 § 840. Corporations.^' — Corporations cannot escape liability for 
 the acts of their servants and agents causing injury to others on the 
 
 "iDaugherty v. Thomas, 174 Mich. 371, 140 N. W. 615, 45 L. R. A. N. S. 699; 
 Ann. Cas. 1915 A. li63;Levyn v. Koppin, 183 Mich 232, 149 N. W. 993, citing 
 Daugherty v. Thonias, 174 Mich. 371, 140 N. W. 615. 
 
 22Daugherty v. Thomas, 174 Mich. 371, 140 N. W. 615, 45 h. R. A. N. S. 
 699, Ann. Cas. 191S A. 1163. 
 
 23Johnson v Sergeant, 168 Mich. 444, 134 N. W. 468, 2 N. C. C. A. 334. 
 
 2*Johnson v. Sergeant, 168 Mich. 444, 134 N. W. 468, 2 N. C. C. A. 334. 
 
 25Nicholas v. Kelley, 159 Mo. App. 20, 139 S. W. 248. 
 
 28Thompson, Com. on Negligence, 2d ed., sec. 39. 
 
 2'Solan & Billings v. Pasche, Tex. Civ. App., 153 S. W. 672. 
 
 554 
 
WHO IS PRINCIPAI, § 841 
 
 ground of utlra vires, and they are liable as employers, for the acts of 
 their servants in the same manner that an individual would be.^' 
 
 And under statutes which exist in most of the states, they may be 
 indicted for criminal negligences on the part of their employees.^" 
 
 Where the defendant is vice-president of a motor car company and 
 at the request of the president of the company sends out his own 
 private car driven by an employee of the company in a gratuitous public 
 service the chauffeur may be found to be the agent of the defendant.'^ 
 
 Where by law corporations may be authorized for maintaining a line 
 of stages, for the transportation of merchandise, or the purchase and 
 sale of goods, wares and merchandise this does not authorize the crea- 
 tion of a corporation for the purchase, sale and renting of automobiles 
 and accessories, and the stockholders in such a corporation are person- 
 ally liable for the negligence of its servants.'^ 
 
 § 841. Infants as employers. — "As the doctrine respondeat su- 
 perior rests upon the relation of master and servant which depends 
 upon contract, actual or implied, it is obvious that it can have no ap- 
 plication in the case of an infant employer, and he, therefore, is not 
 responsible for torts of negligence by those in his service."*^ 
 
 § 842. Infants in negligence cases.^* — "The common law seems to 
 be in such a state that children and insane persons are liable out of 
 their estates for damages caused by their negligence, as well as for 
 their active or malicious torts. "^^ 
 
 Homer v. Thwing^" was a case in which the defendant was sued in 
 trover for unlawful conversion of a horse. Mr. Justice Morton, who 
 delivered the opinion of the court, says : 
 
 "Infants are liable in actions arising ex delicto, but not in 
 those arising ex contractu. The defendant, however, contends, 
 
 28See § 918. 
 
 ^'Thompson Com. on Negligence, 2d ed. sec. 38; Nims v. Mt. Hermon School, 
 160 Mass. 177, 35 N. E. 776. 
 
 ""Com. V. Metropolitan R. Co., 107 Mass. 236; Com. v. Boston & L. R., 126 
 Mass. 61 ; Provincial Motor Cab Co., v. Dunning, 2 L. R. K. B. 599. 
 
 "Merrell v. Dawson, 88 Conn. 710, 92 Atl. 663, 8 N. C. C. A. 582. 
 
 s^Staacke v. Routledge, Tex. Civ. App. 175 S. W. 444. 
 
 ^'Cooley on Torts, 2d ed., p. 128. 
 
 ^*For contributory negligence by minors, see Children, §§ 1346 et seq., Law of 
 the Road, Chap. XVIII. 
 
 ''Thomp. Com. on Negligence, 2d ed., sec. 36. 
 
 S820 Mass. 492. 
 
 SSS 
 
§ 843 AG13NCY 
 
 that there is a qualification of this rule, and that infants are 
 liable for positive wrongs only, and not for constructive torts. 
 But we know of no such distinction, and in the case of Jennings 
 V. Rundall (7 T. R. 335), so much relied upon by the defend- 
 ant's counsel, it is expressly rejected. It is true, that an infant 
 cannot become a trespasser by any prior or subsequent consent. 
 But he may be guilty_of torts, as well by omissions of duty, as 
 by the commission of positive wrongs, i Chit. PI. 65 ; Co. Wt. 
 i8ob, Butler's note 56. He is also liable for frauds, as well as 
 for torts. And his liability is to be determined by the real na- 
 ture of the transaction, and not by the form of the action, i 
 Dane's Abr. 143 ; i Esp. Rep. 172." 
 
 In Blouse v. Geesey^' the defendant, a minor, was sued for personal 
 injuries alleged to have been caused by his negligence in operating his 
 automobile. Defendant appeared by attorney only, no guardian having 
 been joined. Objection was not raised until after verdict when, upon 
 a motion for new trial, Mr. Justice Wanner held that it was not too 
 late to raise the question, and so set the verdict aside. 
 
 § 843. Joint owners. — Whether two joint owners are together 
 liable for the act of the driver depends on whether he was at the time 
 on the business of both of them. If only one of the owners is in the 
 car at the time and he is on a trip of his own the other joint owner is 
 not liable for the driver's negligence.^' 
 
 But the community of both husband and wife is responsible for the 
 tort of the husband in driving an automobile for the benefit of the 
 community. Suit was by a passenger for hire in the defendant's auto- 
 mobile.^' 
 
 And where an automobile is owned jointly by a brother and sister 
 who jointly hire a chauffeur both are liable when he is negligent while 
 on his way alone from the residence of the sister to bring the brother 
 home from business. By agreement between them he had simply a 
 right of preference in the use of the car at the hours of going to busi- 
 ness and returning from business. The court remark that the case 
 might have been different if the understanding had been that each 
 
 8^35 Pa. Co. Ct. Reps. 181. 
 
 ssTowers v. Errington, 138 N. Y. S. 119, 6 N. C. C. A. 369. 
 89Milne v. Kane, 64 Wash. 254; 116 Pac. 659; 36 L. R. A. N. S. 88 (note). 
 Wife as agent of husband, see post, § 917. 
 
 556 
 
, WHO IS AGENT § 844 
 
 should have the exclusive use of the machine and the driver at certain 
 hours.*" 
 
 § 844. Lunatic— Suit cannot be maintained against an adjudi- 
 cated lunatic for the negligence of a chauffeur employed by his guard- 
 ian where the negligence was not committed by the lunatic or under his 
 immediate view or by his direction or authority. These considerations 
 however do not appear to be controlling as the chauffeur was the agent 
 of the guardian and his negligence can bind neither the estate or prop- 
 erty of the lunatic.*^ 
 
 § 845. Mortgagee in possession of business. — The mortgagee 
 who has taken possession of a business may be found the master of a 
 chauffeur running an auto used in the business. The test is not who 
 was the owner of the property but who was managing and controlling 
 it. The fact that the defendant paid the wages is evidence of his con- 
 trol.*^ 
 
 V. Who Is Agsnt. 
 
 § 846. Business agents and representatives. 
 
 847. Volunteer starting car. 
 
 848. Agent permitting another to drive. 
 
 849. Car in hands of mechanic. 
 
 850. One hired to remove car from ditch. 
 
 851. When driver an independent contractor. 
 
 § 846. Business agents and representatives.*' — The fundamental 
 principles of respondeat superior apply not only to drivers and chauf- 
 feurs, but also to agents, salesmen, clerks and all other persons who 
 repr.esent the principal in a business capacity, by virtue of contract, ex- 
 press or implied. 
 
 But one selling automobiles on commission is not the agent of the 
 owner.** 
 
 § 847. Volunteer starting car. — The defendant had been arrested 
 for reckless driving and while in custody of an officer another person 
 came along and told the officer that he knew the defendant and could 
 
 ^oGoodman v. Wilson, 129 Tenn. 464, 166 S. W. 752, 51 L. R. N. S. 1116, 
 6 N. C. C. A. 370 
 «iGillet v. Shaw, 117 Md. 508, 83 Atl. 394. 
 *^Ewing V, Arctic Ice Cream Co., Iowa, 147 N. W. 294. 
 *3S«e chapter on Selling Agents, Chapter XXVIII. 
 "Premier Motor Mfg. Co. v. Tilford (Ind. 1916), in N. C. 645. 
 
 557 ^ 
 
§ 848 AGENCY 
 
 handle the car and would take it to the garage. The defendant as- 
 sented to this and this man then started to crank the car when it 
 started violently in jurying the plaintiff. It is a question for the jury 
 whether the man who cranked the car is an interloper or had been put 
 in charge of the car by the defendant.*^ 
 
 § 848. Agent permitting another to drive.*" — The cases seem to 
 be in hopeless conflict as to the liability where the chauffeur without 
 authority permits another to drive for him. It seems to be the general 
 American rule that the employer is liable in such case. 
 
 So the defendant is liable where the chauffeur permits a guest of the 
 chauffeur to drive, the chauffeur sitting in the seat beside him.*^ 
 
 Where a chauffeur had authority to operate a family car on a pleas- 
 ure drive for the family the owner is liable where the chauffeur allows 
 the owner's minor son to drive under his direction although the chauf- 
 feur has been expressly forbidden to do this.*' 
 
 It is not a defense that a chauffeur in allowing another to drive a car 
 for him used due care in selecting this person. The only question is 
 whether this person was in fact competent.*^ 
 
 A stricter rule is applied in England : 
 
 In an English case the motor car had been repaired at defend- 
 ant's shop. One of defendant's employees was directed to take 
 it from the shop to the owner, and was instructed "not to give 
 up the driving to anyone." On the road the driver's attention 
 was attracted by a noise at the rear of the car. Without stop- 
 ping the machine he entrusted the steering wheel to a man who 
 accompanied him, while he investigated the cause of the noise. 
 The last named "negligently drove the car against the plaintiff's 
 van. 
 
 Held — "That as there was no necessity for keeping the car 
 going while the driver examined the machinery, and therefore 
 for entrusting the driving to the driver's companion, the de- 
 fendants were not liable for the negligence of the latter."^" 
 
 «Rowand v. Germantown Trust Co., 248 Pa. 341, 93 Atl. 1070. 
 
 *8Driver allowing another to drive in a demonstrating trip see post s. 858. 
 
 *'Slothower v. Clark, 191 Mo. App. IDS, 179 S. W. SS- 
 
 *sprince v. Taylor, Tex. Civ. App., 1915, 171 S. W. 826. To the same effect see 
 Collard v. Beach, 81 N. Y. App. Div. 582, 81 N. Y. S. 619, where the chauffeur 
 negligently permitted the defendant's son to drive. 
 
 *9Prince v. Taylor, Tex. Civ. App., 191S, I7i S. W. 826. 
 
 soCiting Gwillen v. Twist (1895), 2 Q. B. 84, and Englehart v. Farrant (1897), 
 I Q. B. 240, followed, and Booth v. Mister, 7 C. & P. 66, not followed. Harris 
 V. Fiat Motors, 22 Times L. Rep. SS6. 
 
 558 
 
WORKING IfOR ANOTHER § 849 
 
 For example an automobile selling company is not liable where its 
 president is a guest at a private house and is taking its members home 
 from church and allows the daughter of his host to drive although he 
 says he had some idea of selling his host a car.°^ 
 
 And it may be more difficult to fix liability on corporations in such a 
 case. 
 
 § 849. Car in hands of mechanic. — Wlaere an owner has placed a 
 car in the hands of a mechanic to "tune it up" for sale the mechanic 
 is not the servant of the owner but an independent contractor while 
 testing it on the road.^^ 
 
 § 850. One hired to remove car from ditch. — Where a motorist 
 hires a man to remove a car from a ditch the jury may find him to be 
 the servant or agent of the automobilist rather than an independent 
 contractor.°^ 
 
 § 851. Where driver an independent contractor. — For a case 
 where the defense was that the driver was an independent contractor 
 operating defendant's machine on an independent percentage basis but 
 where the jury found for the plaintiif.''* 
 
 VI. In the Employment op One Person and Doing Work for Another.^^ 
 
 § 852. In general. 
 
 853. Employee of corporation driving for one of its officers. 
 
 854. Contract with garage to care for car and furnish driver when called 
 
 upon. 
 
 855. Where chauffer of another drives plaintiff home gratuitously. 
 
 856. lyCtting customer crank car. 
 
 857. Testing car for customer. 
 
 858. Where salesman lets another drive the owner's car. 
 
 859. Chauffeur acting as instructor. 
 
 860. Driving car home for purchaser. 
 
 861. Car delivered but not paid for. 
 
 862. Liability of manufacturer for negligence in delivering to customer. 
 
 863. Demonstrator. 
 
 864. Demonstrator allowing customer to run car. 
 
 "Louisville Lozier Co. v. Salle, 167 Ky 499, 180 S. W. 841. 
 52Segler v. Callister, 167 Cal. 377, 139 Pac. 819, 51 L. R. A. N. S. 772. 
 s^Brown v. Freeman, 84 N. J. L- 360, 86 Atl. 384. 
 ''*74 Wash. 309, 133 Pac. 440. 
 sBBorrowing car and chauffeur. See ante § 822. 
 
 Pedestrian struck by. Liability of master for negligence of chauffeur tem- 
 porarily in the service of another. 6 N. C. C. A. 362, 371 note. 
 
 559 
 
§ 852 AGENCY 
 
 865. Garage mechanic testing car. 
 
 866. Hiring a vehicle and driver. 
 
 867. Hirer selecting chauffeur paid by owner. 
 
 868. Political committee hiring car and paying chauffeur. 
 86g. When bailee is liable to third parties. 
 
 870. Defective vehicle. 
 
 871. Hirer allowing a friend to drive. 
 
 § 852. In general. — One of the most perplexing questions in the 
 law of agency arises where an agent or servant, as a chauffeur in the 
 employ of one person is temporarily working under the direction of 
 another. We will proceed to quote some judicial expressions on this 
 topic. 
 
 In Oulighan v. Butler^' Mr. Justice Braley says : 
 
 "A servant sent to perform work for another person, with 
 whom a contract for its performance has been made by his mas- 
 ter, does not by that fact alone, at common law, * * * be- 
 come a servant of the latter."^' 
 
 In Jones v. Scullard'* Lord Russell, Chief Justice, said : 
 
 "It is clear upon the authorities that it is not at all impossible 
 for a man to be in the practical relation of servant to two differ- 
 ent employers. It is clear that although the driver * * * 
 was in the general employment of * * * the livery stable 
 keeper, he may at the time have been in the particular employ- 
 ment of the defendant, and the servant of the defendant in rela- 
 tion to the particular matter of driving the defendant's carriage." 
 Cited in Cunningham v. Castle, 127 N. Y. App. Div. 580, 1908.^' 
 
 In DriscoU v. Towle'" Chief Justice Holmes, says : 
 
 "It is true, of course, that a person admitted to be in the 
 general employment of one may be lent to another * * * in 
 such a way as to become the servant of that other for the occa- 
 sion or for the time. Many cases have been decided on this 
 ground. 'They generally depend upon the nature of the con- 
 so 189 Mass. 287, 289, 75 N. E. 726. 
 
 5'Driscoll V. Towle, 181 Mass. 416, 63 N. E. 922; Thompson, Com. on Negli- 
 gence, 2d ed., sec. 582. 
 6814 Times L. Reps. 580. 
 
 69See also Donovan v. Laing, etc. Syndicate, i Q. B. L,. R. 629, 1893. 
 60181 Mass. 416, 63 N. E. 922. 
 
 560 
 
WORKING FOR ANOTHSE § 852 
 
 tract or arrangement express or implied, between the general 
 master and the third person. * * * But the mere fact that a 
 servant is sent to do work pointed out to him by a person who 
 has made a bargain with his master, does not make him that 
 person's servant. More than that is necessary to take him out 
 of the relation established by the only contract which he has 
 made and to make him a voluntary subject of a new sovereign 
 — as the master was sometimes called in the old books." 
 
 From which it follows that before the general master can escape 
 liability, there must be evidence to show that control over the servant 
 had passed for the time to the hirer or borrower."^ 
 
 In Delory v. Blodgett'^ Chief Justice Knowlton says : 
 
 "The question in every case is whether the proprietor for 
 whom the work is being done has given up his proprietorship 
 * * * and has divested himself of the right of control. * * * 
 If he has done nothing to limit his rights in regard to the busi- 
 ness which is being done for his benefit but retains his pro- 
 prietorship of it, each man who works in it is legally subject to 
 his control while so engaged, and in reference to the rights of 
 third persons who are affected by the work, is his servant. 
 
 "The rule applied when one furnishes for hire or lends to 
 another a team of horses with a driver, is simply an applica- 
 tion of this principle. The circumstances are often such that 
 while the driver is the servant of the person to whom the team 
 is furnished in reference to the question what he shall do or 
 where he shall go, there is an implication that, as to the par- 
 ticulars of the management of the horses, he is the servant of 
 his general employer in whose interest and as whose representa- 
 tive he will manage and direct, within reasonable limits, such 
 matters as pertain to the health and safety of the horses and the 
 safety of the vehicle. In these particulars, for the preservation 
 of his property, it will be presumed that the owner of the team 
 retains in his driver a right of control." 
 
 In Bohan v. Met. Exp. Co.,*^ a motor vehicle case, Mr. Justice Mc- 
 Laughlin says : 
 
 "The question presented depends primarily for its deter- 
 mination upon whether at the time of the accident the chauf- 
 
 'iBonin v. Ballard, 196 Mass. 524, 527, 82 N. E. 702. 
 
 82i8s Mass. 126, 129, 69 N. E. 1078. 
 
 8^122 N. Y. App. Div. 590, 592, 107 N. Y. S. 530. 
 
 561 
 36 
 
§ 853 AGENCY 
 
 feur was a servant of the express company or of the transporta- 
 tion company. If a servant of the latter, obviously there can be 
 no recovery against the defendant. * * * The doctrine of 
 respondeat superior, whereby the negligence of the servant may 
 be imputed to the master, is based upon his right to select and 
 discharge his servants and control and direct them while in 
 his employ. This doctrine, however, has recently been extended 
 in certain instances to apply to cases where servants employed 
 and paid by one person are engaged in the business of and 
 under the direction and control of another, though he have no 
 right of selection or power to discharge. It has been held in 
 several cases that servants thus employed may become ad hoc 
 the servants of the latter, and this even though he does not em- 
 ploy and cannot discharge them." 
 
 The court held that as the accident did not occur while the chauffeur 
 was engaged in the hirer's business, but at a time when he was return- 
 ing to the general employer's garage for the purpose of repairs to the 
 machine, the express company (the hirer) was not liable. 
 
 So where the chauffeur in the employ and pay of a third person had 
 been intrusted by the defendant with the running and management of 
 his car for some weeks the defendant is liable for his negligence."* 
 
 § 853. Employee of corporation driving for one of its officers. — 
 Where the defendant, the president and largest stockholder in a cor- 
 poration buys an automobile for use in his business under an arrange- 
 ment that it should be driven by an employee of the corporation and 
 used for his own private business or pleasure when not used in the 
 company business the driver may be found in his employ when he is 
 driving alone in the car." 
 
 § 854. Contract with garage to care for car and furnish driver 
 when called upon. — It seems to be well settled that where an owner 
 leaves his car at a garage under an arrangement that the garage 
 keeper will supply a chauffeur when called upon, the chauffeur provided 
 is the servant of the garage keeper and not of the owner.°° 
 
 Where the owner of an automobile has a contract with a garage 
 keeper under which the latter was to take care of the car and furnish 
 
 o^Irwin V. Judge, 81 Conn. 492, 71 Atl. 572. 
 
 eBBenn v. Forrest, 213 Fed. 763, 130 C. C. A. 277, 3d Cir. 
 
 «6See Norris v. Wolseley Tool and Motor Car Co., 52 Solicitors' Journal 116. 
 
 562 
 
WORKING FOR ANOTHER § 85S 
 
 a driver when called upon, a driver he furnishes is not the servant of 
 the owner while taking it back to the garage."^ 
 
 Where the owner of a car leaves it at a garage under an arrange- 
 ment whereby he is to wash and clean it and furnish a certain driver 
 whenever the owner desires, the driver to be kept busy by the garage- 
 keeper at other times, he is not the servant of the owner in returning 
 it to the garage after a trip.'* Where an automobile owner pays a 
 garage keeper for storing his car and bringing it up to his house and 
 taking it back for him the garage keeper is liable for the negligence of 
 his employee in taking the car back to the garage."' 
 
 The owner of the car left it at a garage with an arrangement that 
 whenever he called for the car it should be sent with a driver and the 
 court holds that the garage owner and not the owner of the car is the 
 master of the driver. Here the owner of the car made no stipulation 
 that any particular employee should do the work and assumed no con- 
 trol over the driver except to designate the streets over which he de- 
 sired to pass. Here the owner was obliged to rely on the knowledge 
 and skill of the garage owner to procure a safe and competent driver.''" 
 
 § 855. Where chauffeur of another drives plaintiff home gratui- 
 tously. — ^The defendant, a company in the automobile business, is not 
 liable where it receives a call from the plaintiffs that they are having 
 trouble with a tire and where one R. an employee of another company 
 takes a tire from the defendant and drives in the car of his employer 
 to the scene of the trouble and finding he cannot fix the tire drives the 
 plaintiffs back to town gratuitously when the accident happens.''^ 
 
 § 856. Letting customer crank car. — Where an agent is demon- 
 strating a car to a prospective customer and lets him try to crank it 
 the customer is invited to do so either expressly or impliedly and the 
 salesman owed him a duty to warn him of the danger or instruct him.''^ 
 
 '^Sweetnam v. Snow, Mich., 191S, 153 N. W. 770. 
 
 osNeff v.- Brandeis, 9 Neb. 11, 135 N. W. 232, 39 L. R. A. (N. S.), 933- 
 
 8»lvuckett V. Reighard, 248 Pa. 24; 93 Atl. 773. 
 
 '"Ouellette v. Superior Motor & Machine Works, 157 Wis. 531, 147 N. W. 
 1014, 52 L. R. A. N. S. 299, 6 N. C. C. A. 357. 
 
 "Wilkinson v. Myatt Dicks Motor Co., 136 La. 977, 68 So. 96. 
 
 '"Martin v. Maxwell-Briscoe Motor Vehicle Co., 158 Mo. App. 188, 138 S. 
 W. 65. 
 
 563 
 
§ 857 AGENCY 
 
 It is within the apparent authority of a demonstrator to either ex- 
 pressly or impliedly invite a customer to crank a car." 
 
 § 857. Testing car for customer. — The local manager of an auto- 
 bile company (the defendant) is acting in the scope of his employment 
 in operating a customer's car to ascertain what is the trouble with it 
 at the request of the owner.'* 
 
 § 858. Where salesman lets another drive the owner's car. — 
 Where an automobile salesman takes plaintiff's car driving a prospec- 
 tive customer, hoping to be able to sell the plaintiff a new car if the 
 customer bought the plaintiff's car he is the plaintiff's agent and re- 
 sponsible if he allows the customer, an inexperienced woman drive it.'' 
 
 § 859. Chauffeur acting as instructor. — In Hiroux v. Baum'° the 
 defendant had purchased a machine and the seller had agreed to sup- 
 ply a chauffeur to instruct defendant's son in its operation. The son 
 was driving the car under the instruction of the seller's chauffeur at 
 the time the accident occurred. The defendant contended that the 
 chauffeur, as the agent of the seller was an "independent contractor" 
 for whose acts he, the defendant, was not responsible. The Supreme 
 Court of Wisconsin says concerning this point : 
 
 "While we regard the question close, we have arrived at the 
 conclusion that the jury was warranted upon the evidence, and 
 the legitimate inference to be drawn therefrom, in finding that 
 Cecil" (the son) "was the agent and servant of the appellant" 
 (his father) "in the operation of the car."" 
 
 Where an instructor is detailed to teach a customer how to run a car 
 the legal presumption is that such instructions should continue a rea- 
 sonable time having in view the difiSculty or ease with which a person 
 of ordinary intelligence could learn to operate an automobile." In such 
 
 ''Martin v. Maxwell-Briscoe Motor Vehicle Co., 158 Mo. App. 188 138 S. 
 W. 65. 
 
 7*Roach V. Hinchcliff, 214 Mass. 267 ; loi N. E. 383, 4 N. C. C. A. 29. 
 
 76137 Wis. 197; Bertrand v. Hunt, Wash., 1916, 154 Pac. 804. 
 
 78ii8 N. W. Repr. 533. 
 
 "See also Burnham v. Central Auto Exch., 67 Atl. Repr. 429 (R. I.), where 
 the issues were held to present questions of fact for the jury. 
 
 'sBuick Automobile Co. v. Weaver, Tex. Civ. App., 1914; 163 S. W. S94i 
 6 N. C. C. A. 366. 
 
 .■564 
 
WORKING IfOR ANOTHER § 86o 
 
 case the defendant is liable for the acts of the instructor in running the 
 car although he is running at speed to show off the car to his friends.'^" 
 
 § 860. Driving car home for purchaser. — Where a customer has 
 just purchased a car of the defendant company whose agent has given 
 the purchaser some instruction in its use when the defendant's servant 
 is ordered to drive the car with the purchaser through the populous 
 part of the city and at the request of the purchaser stops at various 
 places to get articles the purchaser has bought, the driver remains the 
 agent of the defendant. The driver was acting in pursuance of an 
 arrangement made as a part of the contract of sale. The test is not 
 whose car he was driving or under whose instrucitons he was acting 
 but was he at the time doing any act in furtherance of the company's 
 business. This is a question of law for the court if the facts are not 
 disputed. The question of who had the right to control the driver is 
 of more importance than who did control him. If the customer had 
 ordered the driver to drive at a reckless speed he would have been 
 bound to refuse. Here the vendor undertook to see that the car was 
 properly run for a time.'" 
 
 But where a purchaser has bought and paid for a car and requests 
 the seller to let him have a man to drive the car to the city limits this 
 man is the buyer's agent. The purchaser was an experienced driver 
 from a small town who did not like to drive in the city and had the 
 right to control the man or to discharge him at any time. The seller 
 on the contrary had no control over him. The buyer was not helpless 
 as in the case of an inexperienced purchaser.*^ 
 
 § 861. Car delivered but not paid for. — Where the seller has de- 
 livered a car to a customer who is to use it for hire and out of its 
 earnings pay the defendant the purchase-price he is not liable for the 
 negligence of the purchaser.'^ 
 
 "Buick Automobile Co. v. Weaver, Tex. Civ. App., 1914; 163 S. W. 594, 
 6 N. C. C. A. 366. 
 
 soDalrymple v. Covey Motor Car Co., SS Or. 533. i35 Pac gi, 48 h. R. A. N. S. 
 424, 6 N. C. C. A. 365. 
 
 "Janik V. Ford Motor Co., 180 Mich. 557, U7 N. W. 51°, 52 L. R. A. N. vS. 
 294, 6 N. C. C. A. 364. 
 
 To the same effect see Perkins v. Stead, 23 Times L. Rep. 433- 
 
 82Braverman v. Hart, 105 N. Y. Supp. 107, 1907. 
 
 565 . . 
 
§ 862 AGENCY 
 
 § 862. Liability of manufacturer for negligence in delivering to 
 customer. — Where a selling agent purchases an automobile from the 
 manufacturer and the agent sells the machine and agrees to deliver it 
 to the customer, the seller's driver in delivering the machine is not the 
 servant of the manufacturer.'^ 
 
 § 863. Demonstrator. — The seller is responsible for the negligence 
 of its agent in demonstrating a car to a prospective purchaser.'* 
 
 Where the driver of a car had it previously for the purpose of selling 
 it for the defendant and returned from a trip to another tovsrn where 
 defendant told him he could take it to show to a prospective customer, 
 he is not the agent of the defendant in driving it out for pleasure two 
 days later without authority although he hoped to make a sale to one of 
 his party.'° 
 
 § 864. Demonstrator allowing customer to run car. — The demon- 
 strator of a car renders his employer, the seller, liable where he lets a 
 buyer nm the car who knows nothing about how to run it while he is 
 giving a demonstration lesson.'^ 
 
 The owner of a store is liable where an automobile agent is attempt- 
 ing to sell him an automobile truck and the defendant tells his employee 
 to go out on a demonstration trip and tells the agent to show his em- 
 ployee all about running the machine and the agent after some pre- 
 liminary instruction lets the employee run it when the accident hap- 
 pens. It cannot be said that a direction to the agent to show his man 
 how to run it does not include authority to let him run it.'^ 
 
 § 865. Garage mechanic testing car. — ^Where the defendant's 
 chauffeur goes to get his car from the repair shop and the car breaks 
 down when the garage man drives with him back to the shop and is 
 trying to discover what is the matter with it, it is a question for the 
 jury whether he was acting for his master or the garage owner in doing 
 
 ssFowkes V. Case Threshing Machine Co., Utah, 1915, 151 Pac. 53. 
 
 8*Stern v. International Ry. Co., 167 App. Div. 503, 153 N. Y. S. 520, 9 N. C. 
 C. A. 949 ; McGuire v. Autocar Sales Co., iSo App. Div. 278, 134 N. Y. S. 702, 
 6 N. C. C. A. 367. 
 
 sBGoodrich v. Musgrave Fence & Auto. Co., 154 Iowa 637. I3S N. W. 58. 
 
 86Holmboe v. Morgan, 69 Oregon 395, 138 Pac. 1084. 
 
 8'Hammons v. Setzer, 72 Wash. 550, 130 Pac. 1141. 
 
 ssLane v. Roth, 19S Fed. 255, iiS C. C. A. 227, 3d Cir. 
 
 566 
 
WORKING FOE ANOTHER § 866 
 
 § 866. Hiring a vehicle and driver.*^— Dr. Thompson^" states the 
 doctrine as follows : "If A. hires his team and driver to B., to work 
 for B., and, during the bailment, a third person is injured through 
 negligence of the driver, A. will be Uable to make good the damages, 
 and not B. ; and it is immaterial that the person hiring the team and 
 driver has expressly stipulated for the service of the particular driver. 
 But if the driver so furnished by the owner of the team becomes sick, 
 and the hirer substitutes his own servant in his place then the hirer will 
 be answerable to the owner for any injury to the team through the 
 negligence of the servant so substituted." This doctrine is supported 
 in the decision of Saltonstall v. Stockton.'^ 
 
 "Where (as in the case at bar), the defendant hires of another per- 
 son a horse, wagon and driver to carry merchandise from place to place 
 as directed by the defendant's servant, who accompanies the driver for 
 that purpose alone and nothing more appears, as matter of law the 
 driver is the servant of the owner of the horse and wagon and not of 
 the defendant. Nothing is better settled. The cases are collected in 
 Shepard v. Jacobs, 204 Mass. 110."°^ 
 
 Huff V. Ford*"^ was a case where the city had hired a team and driver 
 from the defendant. While so engaged they were "under the exclusive 
 direction and control of the city as to what to do in the performance of 
 the work." While so engaged, injury occurred to the plaintiff through 
 the negligence of the driver : 
 
 By the court. "The driver, employed and paid by the de- 
 fendant, and who had the entire management of the horses as 
 to the manner of driving them, * * * ^^s the servant of the 
 defendant in so driving the horses, * * * and for injuries to 
 third persons by his negligence in these respects the defendant 
 is responsible." 
 
 ssConcerning the remedies of the bailee, when he is merely a passenger, for 
 injuries received either through the negligence of the driver, or of third parties, 
 see chapter XL on "Passengers." 
 
 »"Com. on Negligence, 2d ed., sec. 581. 
 
 9iTaney Cir. Ct., Dec. i, 16. Jones v. ScuUard, 14 Times L. Reps. 580, 1898; 
 Bohan v. Met. Ex. Co., 122 N. Y. App. Div. 590, 1907, 107 N. Y. S. 530 ; Cunning- 
 ham V. Castle, 127 N. Y. App. Div. 580, 583, 1908, in N. Y. S. 1057; Shepard v. 
 Jacobs, 204 Mass. no, 90 N. E. 392. 
 
 s^Per Loring, J., in Peach v. Bruno, 224 Mass. 447, 113 N. E. 279. 
 
 '^126 Mass. 24. 
 
§ 866 AGENCY 
 
 In Shepard v. Jacobs,'* upon a somewhat similar state of facts in an 
 automobile case, the court held that the analogy between the contract 
 of letting a horse, carriage and driver, and that of letting an automo- 
 bile and chauffeur, was very close. Attention is drawn to a distinction 
 between this class of so-called driving cases, and the letting of railroad 
 trains and large machines. In the case cited, the control and manage- 
 ment of the automobile not having been given up to the hirer, responsi- 
 bility would lodge with the bailor. 
 
 So it may be laid down as a general rule that where a motor vehicle 
 and driver are hired the driver is the servant of the owner and not of 
 the hirer where the latter exercises no control except to tell him where 
 to drive."' 
 
 Where a real estate dealer hires an automobile and driver to take a 
 prospective purchaser to examine a farm he is not liable for the negli- 
 gence of the driver. The mere fact that he said once to the driver "Be 
 careful" does not justify a finding that he participated in any way in the 
 driver's acts.'" 
 
 So cautions not to drive too fast and not to drive near the edge of 
 the road cannot be construed an exercise of control.'^ 
 
 But where members of a party make a trade with a garage owner 
 for hire of an automobile and chauffeur and agree to divide the ex- 
 pense of the trip among themselves the jury may find that the chauf- 
 feur is in the employ of the members of the party.'' 
 
 One who rents cars, accompanied by drivers, occasionally is a 
 private carrier and is bound to exercise ordinary care and diligence to 
 
 9*204 Mass. no, 90 N. E. 392. 
 
 ssRodenburg v. Clinton Auto. & Garage Co., 84 N. J. h. S4S; 87 Atl. 71; 
 Waldman v. Picker Bros., 140 N. Y. S. 1059 (N. Y. Mun. Ct.) ; Gerretson v. 
 Rambler Garage Co., 149 Wis. 528, 136 N. W. 186, 40 L. R. A. N. S. 4S7. 6 
 N C. C A. 368. The owner of a garage is responsible to a person who hires a 
 car and chauffeur if the chauffeur is negligent. Wallace v. Keystone Automo- 
 bile Co., 239 Pa. no; 86 Atl. 699; and his liability is not limited to the exer- 
 cise of care in the selection of the driver. Meyers v. Tri-State Automobile Co., 
 121 Minn. 68, 140 N. W. 184, 44 L. R. A. N. S. 113, H N. C. C. A. 30, 6 N. C. 
 C. A. 369- 
 
 »6Hannon v. Van Dycke Co., 154 Wis. 454, 143 N. W. 150. 
 
 s^Meyers v. Tri-State Automobile Co., 121 Minn. 68, 140 N. W. 184, 44 L. 
 R. A. N. S. 113, 4 N. C. C. A. 30, 6 N. C. C. A. 369. 
 
 ssConroy v. Mather, 217 Mass. 91 ; 104 N. E. 487, 52 L. R. A. N. S. 801, 9 N. 
 C. C. A. 837. 
 
 568 
 
WORKING FOR ANOTHER § 867 
 
 carry his passengers safely. If he delegates this duty to a driver who 
 drives negligently he is liable especially where the occupants of the 
 car exercised no authority over the driver except to direct him where 
 to go, and its operation and management was exclusively in his con- 
 trol."' 
 
 § 867. Hirer selecting chauffeur paid by owner. — But where one 
 hires a car and selects the chauffeur who is paid by the owner the 
 hirer is responsible for his negligence.^"" 
 
 § 868. Political committee hiring car and paying chauffeur. — 
 Where two members of a political committee obtain a car from the 
 owner for a political trip without compensation but agreeing to pay 
 for the chauflfeur and the gasoline they and not the owner are responsi- 
 ble for his negligence during the trip. The candidate in whose behalf 
 the trip is made is not liable.^ 
 
 § 869. When bailee is liable to third parties. — ^When the contract 
 of hiring is of such a character that the bailor parts with the posses- 
 sion and control of the vehicle and they are assumed by the hirer, then 
 the bailor's responsibility ceases. And the same is true when the ve- 
 hicle is being used by a mere licensee even though the negligence be wil- 
 ful and wanton.^ 
 
 Mr. Van Zile in his work on Bailments, etc.,' thus states the general 
 doctrine that the negligence of the bailee is not imputable to the bailor 
 in such cases : 
 
 "The bailee having absolute and entire control of the posses- 
 sion and use of the property bailed, necessarily becomes liable 
 to third parties who may be injured by reason of the negligent 
 use of the property ; not only does this liability attach because 
 of the negligent use of the property by the bailee in person, but 
 the bailee is also liable for the negligence of his servants in 
 respect to the bailment ; but in no case can it be said that the 
 
 »9Forbes v. Reinman, 112 Ark. 417, 166 S. W. 563, Si L- R- A. N. S. 1164, 
 6 N. C. C. A. 367. 
 
 ""Diamond v. Sternberg Motor Truck Co., 149 N. Y. S. 1000, 87 Misc. 305- 
 
 iPease v. Gardner, 113 Maine 264; 93 Atl. 550. 
 
 2I.ewis V. Amorous, 3 Ga. App. 50, 59 S. E. 338; Bohan v. Met. Exp. Co., 122 
 N. Y. App. Div. 590, 107 N. Y. S. S30- 
 
 »Sec. 128, 
 
 569 
 
§ 870 AGENCY 
 
 servants of the bailee in a bailment for hire, are the servants as 
 well of the bailor." 
 
 The English rule on this subject is stated in Crofts v. Alison* where 
 the court say: "It has never been supposed that a mere passenger in a 
 carriage can be considered as the owner and proprietor. * * * The 
 plaintiffs, however, are something more, for they have not only hired 
 the chariot for the day, but have appointed the coachman and furnished 
 the horses. ' They may, therefore, be considered, for the purpose of 
 this declaration, as the owners and proprietors of the chariot." 
 
 "And so it follows that the bailor is not responsible to third parties 
 for the negligent use of the property by the servants of the bailee 
 himself. The bailee does not stand in the place of the bailor; he 
 does not represent him in such a relation as would render the bailor 
 liable for his negligent acts, or for the negligent act of his servants or 
 agents."" 
 
 § 870. Defective vehicle. — But the bailee will not be liable where 
 the injury results from a defect in the vehicle which was unknown to 
 him.* 
 
 § 871. Hirer allowing a friend to drive. — Dr. Thompson^ says, 
 "if the hirer of a carriage allows one of his friends to drive, the hirer 
 is responsible for the negligence of the friend from which an accident 
 results, the reason being that the hirer thereby constitutes the friend 
 his agent for the particular purpose." And, similarly, it is true where 
 the servant without authority, invites a friend of his own to ride or to 
 
 drive.* 
 
 VII. Within the Scope op His Employment. 
 
 § 872. Liability dependant on whether acts were vvithin course of employment. 
 
 873. Damage to automobile driven by chauffeur on his own business. 
 
 874. Driving to get supplies. 
 
 *See Jones v. Scullard, 14 Times L. Reps. 580. See also Quarman v. Burnett, 
 6 Mees & W., 499- 
 
 sBraverman v. Hart, 105 N. Y. Supp. 107, 1907 ; Irwin v. Judge, 81 Conn. 492, 
 71 Atl. Repr. 572, 1909. 
 
 sBohan v. Met. Ex. Co., 122 N. Y. App. Div. 590, 1907, 107 N. Y. S. S30, 28 
 Am. & Eng. Ency. Law & Proc. 40. 
 
 ^Com. on Negligence, 2d ed., sec. 5x3. 
 
 sBowler v. CConnell, 162 Mass. 319. See § 584, where case is quoted. Harris 
 V. Fiat Motors, 22 Times L. Reps. 556, 1906. 
 
 570 
 
WITHIN THE SCOPU § 872 
 
 875. Authority of agent to "borrow" car. 
 
 876. Agent delivering repaired goods. 
 
 877. Testing car on road. 
 
 878. When chauffeur driving on own business with master's permission. 
 
 879. Servant doing work for fellow servant. 
 
 880. Operator no duty to drive. 
 
 881. Presumptions. 
 
 § 872. Liability dependant on whether acts were within course 
 of employment. — Probably no subject in connection with the law ap- 
 plying to motor vehicles, has excited greater interest than the responsi- 
 bility of the owner for the acts of his chauffeur and agents.* 
 
 Many cases have appeared in the courts, and, while the decisions do 
 not seem to be entirely in harmony, they all proceed upon one general 
 principle, namely, that the act or omission of the chauffeur or agent in 
 order to render his employer liable, must have occurred while the 
 chauffeur or other representative was engaged in his employer's serv- 
 ice, and within the scope of his employment. The doctrine is briefly 
 set forth in the statement of Mr. Justice Brown, in Slater -v. Advance 
 Thresher Co.,^° where it is said : 
 
 "The master is not Uable for injuries occasioned to a third per- 
 son by the negligence of his servant while the latter is engaged in 
 some act beyond the scope of his employment, for his own or the 
 purposes of another, although he may be using the instrumental- 
 ities furnished by the master with which to perform his duties as 
 servant. * * * The expression 'in the course of his employ- 
 ment' means, in contemplation of law, 'while engaged in the serv- 
 ice of the master' and nothing more. It is not synonymous with 
 'during the period covered by his employment.' " 
 
 For negligence of the chauffeur within the course of his employment 
 the master is universally held liable." "Beyond the scope of his em- 
 
 9See Chapter XIII, Chauffeurs and Operators. 
 
 1097 Minn. 305, 107 N. W. I33- 
 
 "Fielder v. Davison, 139 Ga. 509, ^^ S. E. 618; Schumer v. Register, 12 Ga. 
 App. 743, 78 S. E. 731, 8 N. C. C. A. 300; Thomas v. Armitage, in Minn. 238, 
 126 N. W. 735; Towers v. Errington, 78 Misc. 297, 138 N. Y. S. 119; Rochester 
 V. Bull, 78 S. C. 249, 58 S. E. 766- See Freibaum v. Brady, 143 App. Div. 220, 
 128 N. Y. S. 121, holding that the owner is not liable unless the chauffeur was 
 engaged in his business. Liability of owner for negligence of employee operating 
 his automobile. 41 N. C. C. A. 27-35 note. 
 
§ 873 AGENCY 
 
 ployment the servant is as much a stranger to his master as any third 
 person."^^ 
 
 It is not enough that the chauffeur was driving with the owner's 
 permission unless he was also driving on his business.^^ 
 
 While the rule is plain and its expression simple, the absence of 
 harmony in the decisions grows out of its application to the differing 
 circumstances presented by the cases. A slight variance between the 
 facts of one case and those of another, may change the whole aspect 
 of the matter, and as the subject is one which, at the last, is for the 
 jury, so are developed the apparent inconsistencies in the decisions. 
 Because of its importance, the principles upon which the responsibility 
 rests are somewhat fully presented in this chapter, as they apply to 
 appropriate aspects of the subject. 
 
 § 873. Damage to automobile driven by chauffeur on his own 
 business. — The owner can recover for damage to his car driven by his 
 chauffeur in the exercise of due care although not on the owner's busi- 
 ness.^* 
 
 § 874. Driving to get supplies. — ^An employe of a garage owner 
 is acting in the scope of his employment where he goes to another 
 place to get a battery charged and uses against orders a customer's car 
 in doing so.^^ 
 
 A driver is acting for his employer where he takes out an automobile 
 of theirs to get some chains to clean which was a part of his duties 
 although he usually used the street cars for such errands and had no 
 authority to use the automobile in question.^" 
 
 So where the chauffeur is told to get oil in the hotel where the car 
 was and instead he drives to a garage some distance off to get the oil 
 the owner is liable for the driver's negligence in doing so.'^^ 
 
 § 875. Authority of agent to "borrow" car. — The manager of a 
 garage may be found to have authority to "borrow" a customer's car to 
 go after a machine which had broken down on the road.^' 
 
 i^Cunningham v. Castle, 127 N. Y. App. Div. 580, 1 11 N. Y. S. 1057; CuUen v. 
 Thomas, 135 N. Y. S. 22 (N. Y. Sup.), 150 App. Div. 475- 
 i^Schultz V. Morrison, 154 N. Y. S. 257, 91 Misc. 248. 
 i*Thomas v. Armitage, iii Minn. 238; 126 N. W. 73S- 
 i^Gibson V. Dupree, 20 Colo. App. 324, 144 Pac. 1133. 
 leCooper v. Knight, Tex. Civ. App. ; 147 S. W. 349. 
 i^Bennett v. Busch, 75 N. J. 240 ; 67 Atl. 188. 
 isHughes Co. V. Bergen & W. Auto Co., 75 N. J. l,- 35S> 67 Atl. 1018. 
 
 572 
 
WITHIN THE SCOPE § 876 
 
 § 876. Agent delivering repaired goods.— Whether a general 
 agent of a cash register company was delivering a register he had re- 
 paired as he was bound to do under his contract with the company or 
 was doing it in his individual capacity as a repairman is the proper 
 test on the question whether the company is liable for the negligence 
 of the agent's chauffeur.^^ 
 
 § 877. Testing car on road. — The owner may be liable for the neg- 
 ligence of his employees in testing the car on the road if such a test 
 was expressly authorized or was necessary. 
 
 If the chauffeur, after cleaning and putting the car in order was 
 testing it for use on the following day this was within the scope of his 
 employment and when evidence to this effect is denied, it is for the 
 jury to say whether he was acting within the scope of his employ- 
 ment.^" 
 
 A mechanic in a garage ordered to repair a car may be found to be 
 acting within the scope of his employment in testing it on the road if 
 such a road test is necessary for the repair work.^^ 
 
 A master may be liable for the negligence of his mechanic testing a 
 car on the road although he had given the man express orders not to 
 drive on the road if the testing was in furtherance of the repair work 
 he was ordered to do.^^ 
 
 But where the owner has expressly forbidden the chauffeur to take 
 the car out he will not be liable for the chauffeur's negligence in doing 
 
 S0.2' 
 
 The employer is not liable where a bookkeeper or cashier takes an 
 automobile for his personal business. The fact that when the accident 
 happened he was taking the car to see if it needed repairs and that 
 such an inspection might benefit the employer is immaterial where he 
 had no authority to inspect it or take it for inspection.^* 
 
 "National Cash Register Co. v. Williams, 161 Ky. S50, 171 S. W. 162, 164 
 S. W. 112. 
 
 2»Curran v. Lorch, 243 Pa. 247; 90 Atl. 62. 
 
 "Reid Auto Co. v. Gorsczya, Tex. Civ. App.; 144 S. W. 688 (repair of dif- 
 ferential). 
 
 22Reid Auto Co. v. Gorscyza, Tex. Civ. App.; 144 S. W. 688. 
 
 23Durham v. Strauss, 38 Pa. Super. Ct. 620. 
 
 "^White Oak Coal Co. v. Rivoux, 88 Ohio St. 18; 102 N. E. 302; Ann. Cas. 
 1914 C. 1082. 
 
 573 
 
§ 878 AGENCY 
 
 § 878. When chauffeur driving on own business with master's 
 permission.^*^ — Where a master permits his chauffeur to use his car, 
 the chauffer occupies, during the period of the loan, the position of a 
 borrower, for whose negligent acts the lender is not responsible. In 
 Salisbury v. Erie R. R. Co.^" Mr. Justice Van Syckel says : 
 
 "If a master lends his wagon to his servant to carry the serv- 
 ant's property over an ordinary public highway, no one would 
 seriously contend that while the servant was engaged in his own 
 business, the master would be liable for any injury which resulted 
 from the negligence of the servant. It would not be an injury 
 done in the service of the master, and the master would be under 
 no duty to the public to maintain the safety of the highway."^' 
 
 The owner of a car is not liable where his wife allows the chauffeur 
 to use it in getting a doctor for the chauffeur's sister, and the accident 
 happens on the way home after taking the doctor to his office. The 
 chauffeur was not driving on his master's errand.^'' 
 
 The owner is not liable for the negligence of his chauffeur either 
 where the latter takes the car without the knowledge or consent of 
 the owner or where he is using it on his own business with the ap- 
 proval of the owner.^* 
 
 But a corporation may be liable for negligence of its employee in 
 handling its truck although it was being used at that time in the busi- 
 ness of the foreman in hauling his goods where the use of the truck 
 by employee's for their own business was contemplated and ratified 
 by the employer.^" 
 
 § 879. Servant doing work for fellow servant. — So where a truck 
 driver is under orders towing a car of a fellow employee he is acting 
 
 2*aLiabiIity for acts of borrower, see ante, 822. 
 
 2566 N. J. L. 233, 234, SO Atl. 117. 
 
 2»See Cunningham v. Castle, 127 N. Y. App. Div. 580, in N. Y. Suppl. 1058; 
 Davies v. Anglo-American Auto Tire Co., 145 N. Y. S. 341, Sup. Ct. T. T. (N. 
 Y. Sup.). 
 
 2'Ludberg v. Barghoorn, 73 Wash. 476, 131 Pac. 1165. 
 
 28Fielder v. Davison, 139 Ga. 509; 77 S. E. 618. Chauffeur going for his own 
 family not engaged in master's business. Scheel v. Shaw (Pa. 1916), 97 Atl. 
 68s. 
 
 ssStudebakef Bros. Co. v. Kitts, Tex. Civ. App.; 152 S. W. 464; 6 N. C. C. 
 A. 63. 
 
 574 
 
DEVIATIONS § 880 
 
 within the scope of his employment although the defendant's charges 
 for repairs of employee's cars is limited to the cost of making them.'" 
 
 § 880. Operator no duty to drive. — Where two mechanics are out 
 testing a car which has been repaired for their employer the defend- 
 ant, and allow another employee with them to drive while testing, the 
 defendant is liable although it was not the duty of the latter employee 
 to drive repaired cars but he was a taxicab driver.'^ 
 
 § 881. Presumptions. — No presumption as to whether a chauffeur 
 is in the scope of his employment can arise where all the facts are in 
 evidence.^^ 
 
 VIII. DEVIATI0NS.S3 
 
 882. 
 883 
 884 
 88s 
 886, 
 887. 
 
 890. 
 891 
 892. 
 893 
 894. 
 89s 
 896, 
 897 
 898, 
 899. 
 900, 
 
 Going out of way — "detours." 
 Large deviation. 
 Slight deviation. 
 Unexecuted intention to deviate. 
 Going to and from meals. 
 Going for laundry. 
 Separate trip. 
 
 Running in opposite direction. 
 While returning to duty. 
 When driver "on a frolic of his own." 
 Chauffeur earning money for himself. 
 Servant leaving vehicle — omissions of duty. 
 Injurious acts of an employe done for amusement. 
 Disobedience. 
 
 Unauthorized use of car on servants' business. 
 Unauthorized use of car on master's business. 
 Trip in response to appeal for aid by friends of owner. 
 Statutes on this subject. 
 
 Responsibility of principal for wilful and wanton negligence of em- 
 ployee. 
 
 § 882. Going out of way — "detours." — As a number of motor ve- 
 hicle cases turn upon the question whether the chauffeur was proceed- 
 ing about his employer's business by a direct route, or was going extra 
 
 '"Chamberlain v. Southern California Edison Co., 167 Cal. 500; 140 Pac. 
 25 ; 6 N. C. C. A. 37i- 
 
 'iQeiss v. Twin City Taxicab Co., 120 Minn. 368; 139 N. W. 611; 45 I,. R. A. 
 N. S. 382 (note). 
 
 32Whimster v. Holmes, 177 Mo. App. 230, 164 S. W. 236. 
 
 ^'Deviation by Hirer, see § 558. Deviations, see ante, § 540. 
 
 575 
 
§ 882 AGENCY 
 
 vnam, or, to use the popular expression, was making a "detour," it is of 
 consequence to examine some of the distinctions on this point. In 
 McCarthy v. Timmins'* the defendant's driver, Scott, was directed to 
 take his team to the stable, in doing which he made a detour for the 
 purpose of getting a drink. While he was in the saloon the horses ^an 
 away and the plaintiff's injury occurred. Mr. Justice Hammond, writ- 
 ing the opinion of the court, says : 
 
 "Scott had been employed to drive the team * * * and the 
 work was ended for the day. He was then directed to go to the 
 stables, and there can be no doubt that so long as he drove the 
 team with that end in view, and for that purpose and for no pur- 
 pose of his own, he was engaged in his master's business, even if 
 he made a detour contrary to the direction of his master. * * * 
 It is plain that his only purpose" * * * -y^as "a purpose of 
 his own, namely, to get a drink. He was upon no errand of his 
 master, and the journey was not for the purpose of getting to the 
 stables even by a circuitous route, or, to use the language of Hoar, 
 J., in Howe v. Newmarch, 12 Allen 49, 57, he was doing an act 
 wholly for a purpose of his own, disregarding the object for 
 which he was employed and not intending by his act to execute it, 
 and not within the scope of his employment. In such cases the 
 defendant should not be held answerable. Whatever may be the 
 view entertained elsewhere as to the application of the principle 
 to facts like these (See Ritchie v. Waller, 63 Conn. 155) we do 
 not feel it necessary to review the numerous cases in our state 
 and elsewhere bearing upon the question." 
 
 Ritchie v. Waller^' was a case where the servant drove the defend- 
 ant's team out of the direct route to attend to a personal matter ; while 
 so doing the team got away and did the damage. The servant was 
 engaged about the master's business in charge of the team, but, in 
 making the detour, he went outside the scope of his employment, and 
 for a purpose purely his own. The court, by Mr. Justice Torrance, 
 extensively review cases on this subject and lay down a general rule. 
 Speaking of the "conditions" under which the rule will apply, the court 
 say: 
 
 "In reality, however, the difficulty here spoken of arises in as- 
 certaining whether the act was done in the execution of the mas- 
 
 S4178 Mass. 378, 59 N. E. 1038. See Hayes v. Wilkins, 194 Mass. 223, 227; 80 
 N. E. 449, where McCarthy v. Timmins, supra, is distinguished. See § 893. 
 SB63 Conn. ISS. 28 Atl. 29. 
 
DEVIATIONS § 883 
 
 • ter's business within the scope of his employment, which * * * 
 is ordinarily a question of fact, and not in applying the rule when 
 the fact has been ascertained. * * * Sometimes, however, 
 this question is determined by the court as a matter of law. But 
 in by far the greater number of cases where the question of the 
 master's responsibility turns as in the present case, principally 
 upon the mere extent of deviation by the servant from the strict 
 course of his employment or duty, it has been generally held to 
 be one of fact and not of law. 
 
 In such cases it is, and must usually remain, a question depend- 
 ing upon the degree of deviation and all the attendant circum- 
 stances?^ 
 
 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 devia- 
 tion is very marked and unusual, the court in like manner may de- 
 termine that the servant was not on the master's business at all, 
 but on his own. Cases falling between these extremes will be re- 
 garded as involving merely a question of fact, to be left to the 
 jury or other trier of such questions." 
 
 The facts of the motor vehicle cases below cited and the decisions of 
 the courts thereon, are stated in the collection of cases appended, to 
 which the reader is referred.^' 
 
 § 883. Large deviation. — Where a servant is told to take an auto- 
 mobile to a garage for repair less than a mile away and instead drives 
 it six miles away on an errand of his own this is not a mere deviation 
 but is the principal journey and the employer is not liable for his negli- 
 gence in so going.'' 
 
 § 884. Slight deviation. — A slight deviation while on an errand for 
 the master will not render the chauffeur any the less the agent of the 
 master.^' Where a servant is returning from an errand in his master's 
 business and deviates on the way back on an errand of his own he is 
 still acting for his master.*" 
 
 '^Italics by the author of this book. 
 
 ''Long V. Nute, 123 Mo. App. 204; 100 S. W. 511; Patterson v. Kates, 152 
 Fed. Repr. 481, Pa.; Mattel v. Gillies, 16 Ont. L. Reps. 558 (Can.). 
 
 ''Fleischner v. Durgin, 207 Mass. 435 ; 93 N. E. 801 ; 33 L. R. A. N. S. 79 
 (note) . 
 
 '^Mattel V. Gillies, 16 Ont. Law Rep. 558, 11 Ont. Weekly Rep. 1083. 
 
 *°Gibson v. Dupree, 25 Colo. App. 324, 144 Pac. 1133. 
 
 577 
 37 
 
§ 885 AGENCY 
 
 Where the defendant's chauifeur with other employees has driven 
 to the bank on defendant's business a verdict for the plaintiff will be 
 sustained although it was suggested that on the way home when the 
 accident happened the chauffeur was deviating from the direct route. 
 If this were true it is doubtful whether it would be a defense but here 
 there was no direct evidence of it.*^ 
 
 § 885. Unexecuted intention to deviate. — An automobile of the 
 city is being used in city business when it is being returned to the 
 garage after being used on city business. The fact that the chauffeur 
 has an unexecuted intention to deviate from his direct route beyond the 
 place of the accident is immaterial.*^ 
 
 § 886. Going to and from meals. — In a Wisconsin case the chauf- 
 feur was using the car going to dinner without the knowledge or per- 
 mission of the owner. The court held that while en route the "em- 
 ployment and the relation of master and servant were suspended for 
 the time being," the facts failing to show that the "chauffeur was per- 
 forming an act in obedience to an order or direction of the employer, 
 or that he was doing something with the master's implied consent."*' 
 
 Whether the chauffeur is in the employ of his master while on his 
 way to his supper depends on whether he is driving to supper under 
 the direction, express or implied, of his master.** 
 
 Where a chauffeur is permitted by the defendant to use an automo- 
 bile in going to his dinner and returning and on the way home takes a 
 longer route for the purpose of carrying a friend home this is strong 
 evidence that he is not on his master's business. But where the chauf- 
 feur states that he was at liberty to go home by any route he chose 
 and that after the accident his employer told him he had a right to be 
 where he was this is evidence that he was properly driving in the per- 
 formance of his duty to the defendant.*^ 
 
 A chauffeur is not shown to be on his master's business where he is 
 using his master's car to come from his dinner as he had done this once 
 
 *iWitte V. Mitchell-Lewis Motor Co., 244 Pa. 172; 9° Atl. 528. 
 *2Fitzgerald v. Boston & Northern St. Ry. Co., 214 Mass. 438 ; loi N. E. 1085. 
 I'Steffen v. McNaughton, 143 Wis. 49; 124 N. W. Repr. 1016. 
 **Carrier v. Donovan, 88 Conn. 37; 89 Atl. 894- 
 <5McKeever v. Ratcliffe, 218 Mass. 17; 105 N. E. SS2. 
 
 578 
 
DEVIATIONS § 887 
 
 before, although he had never been forbidden to do so where the de- 
 fendant did not know? of his using it for that purpose.*' 
 
 Evidence that the chauffeur of the defendant was driving the car 
 when the accident happened alone from his house where he had been 
 having his dinner, to take the defendant's mother to ride is not suffi- 
 cient to show that he was acting as the defendant's agent.*' 
 
 A taxicab company is liable for the negligence of its drivers in going 
 to lunch although it was contrary to the rules to use the taxicab for 
 this purpose without permission where there is evidence that no ob- 
 jection to such use had ever been made.*' 
 
 Where an employee is instructed to take his employer's automobile 
 to the garage and instead uses it for the purpose of going to dinner 
 the employer is not liable if he runs into someone on the way.*' 
 
 § 887. Going for laundry. — Mere evidence that a chaufifeur was 
 using his master's car in going for his laundry is not of itself sufficient 
 to show that he is on his master's business.'"' 
 
 It is a question for the jury whether a chauffeur is on his master's 
 business where he is going for his own laundry in his master's car as 
 he had always done before with the knowledge of his master. His 
 master paid for his meals and laundry as part of his wages and he Was 
 accustomed to use the automobile in going to his meals and to get his 
 laundry."^ 
 
 § 888. Separate trip. — Where the defendant told the chauffeur that 
 he would not need him till nine o'clock that evening and the chauffeur 
 goes home in the car whereupon his wife sends him out to get some 
 meat for dinner and on the way the accident happens the defendant is 
 not liable. The permission or acquiesance of the employer does not 
 make him liable."" 
 
 "oMcIntire v. Hartfelder-Garbutt Co., 9 Ga. A. 324; 71 S. E. 492- 
 
 *''Hartnett v. Gryzmish, 218 Mass. 258; 105 N. E. 988. 
 
 *8Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. siQ- 
 
 *»McIntire v. Hartf elter Garbutt Co., 9 Ga. App. 327 ; 71 S. E. 492. 
 
 soDouglass V. Hewson, 142 App. D. 166; 127 N. Y. S. 220. 
 
 ^iReynolds v. Denholm, 213 Mass. 576 ; 100 N. E. 1006. 
 
 "Reilly V. Connable, 214 N. Y. 586, 108 N. E. 853. See Patterson v. Kates, 
 i.';2 Fed. 481, where the chauffeur left the straight road for a side trip wi+h 
 friends and on the way back the accident happened and the court regards this 
 as a separate expedition of his own. 
 
 579 
 
§ 889 AGENCY 
 
 § 889. Running in opposite direction. — The fact that the chauf- 
 feur's trip is not a detour but is ah excursion in the opposite direction 
 from the line of his duty is a reason for holding that it is not made on 
 the master's business.^* 
 
 Where a chauffeur is instructed to go to his home for dinner and 
 then to come back and instead he goes eight or ten blocks beyond to 
 do an errand of his own the master is not liable.'* 
 
 The plaintiff cannot recover where the defendant ordered his chauf- 
 feur after leaving his car at the theatre to take it to a garage and re- 
 turn for him after the performance and the chauifeur after taking it 
 to the garage takes it out again about two hours before the time neces- 
 sary to return to the theatre and goes in the opposite direction on an 
 errand of his own and on the return runs into the plaintiff."" 
 
 But the mere fact that a chauffeur takes over an hour in a trip 
 which should require fifteen minutes and that when the machine ar- 
 rived it was coming from the opposite direction from the direct route 
 is not sufficient to show that the chauffeur at the time was acting out- 
 side of the scope of his employment. He might have been detained 
 by an accident to his car or by stopping to assist another in trouble or 
 the direct route might be obstructed."' 
 
 § 890. While returning to duty. — In some close cases tlie fact that 
 the chauffeur was on his way back to duty after an unauthorized 
 deviation has been a determining factor."^ 
 
 Hence it has been said that although a chauffeur abandons his serv- 
 ice when he takes another mechanic home his service is resumed when 
 he starts to get the car home after doing so."' 
 
 The chauffeur may be found to be acting in the scope of his em- 
 ployment where he drives his master in the master's car to the theatre 
 and the master then gives him money for a hair cut and on the way 
 back to the theatre the accident occurs. The court reUes on the con- 
 sideration that the chauffeur had completed his private business and 
 in going to get his master was attending to his master's business. If 
 
 ssSee Danforth v. Fisher, 7.5 N. H. in, 71 Atl. S3S, 21 L- R- A. N. S. 93- 
 
 5*Provo V. Conrad, 130 Miss. 412, 153 N. W. 753- 
 
 s^Halparin v. Bulling, 150 Can. Sup. 471 ; 38 Ann. Cas. 474. 
 
 ""Luckett V. Reighard, 248 Pa. 24; 93 Atl. 773. 
 
 67See Danforth v. Fisher, 75 N. H. in, 71 Atl. 535, 21 L. R. A. N. S. 93- 
 
 ssWhifflster v. Holmes, 177 Mo. App. 230, 164 S. W. 236. 
 
 .580 
 
DEVIATIONS § 891 
 
 the chauffeur had been going to the barber shop at the time of the acci- 
 dent the court remarks that the result might have been different.^' 
 
 The master is responsible where the chauffeur is ordered to go and 
 get the master's son and he starts in the opposite direction on an errand 
 of his own and after doing this on the way back has an accident. 'The 
 court says the test is whether the servant has "quit sight" of the mas- 
 ter's business or still "has it in view."'" 
 
 The chauffeur is acting within the scope of his employment when 
 the master orders him to take the car to a garage and arrange for its 
 repair when he does so, goes out with the expert from the garage then 
 goes with him to a saloon, goes to supper, takes the expert home and 
 after doing so and having various drinks on the way he found he had 
 lost the keys to the defendant's garage and went back to get them and 
 became so intoxicated that he could not remember the accident. The 
 court regards it as important that he was on his way to the defendant's 
 home with the car when he found he had lost the keys and holds that it 
 was his duty to go back after the keys. The fact that he became in- 
 toxicated when the defendant ordered him to keep sober is no defense."^ 
 
 But where the chauffeur was told to take the machine to the garage 
 and instead drove another employee home and then drove to a restaurant 
 and after supper on his way to the garage the accident happened the 
 defendant is not liable.'^ 
 
 § 891. When driver "on a frolic of his own." — In Perlstein v. 
 American Exp. Co.°^ Mr. Justice Knowlton, quoting from Joel v. Mor- 
 rison,°* says : 
 
 "If the servant was not then acting in the course of his employ- 
 ment, but was off 'on a frolic of his own,' the master would not 
 be liable." 
 
 "^McKiernan v. Lehmaier, 85 Conn, in; 81 Atl. 969. 
 
 BoSlothower v. Clark, 191 Mo. App. 105; 179 S. W. 55. 
 
 *iWhimster v. Holmes, 177 Mo. App. 130; 164 S. W. 236. 
 
 s^Colwell V. Aetna Bottle & Stopper Co., 33 R. I. S3i; 82 Atl. 388, 2 N. C. 
 C. A. 430. 
 
 »3i77 Mass. 530, 532, 59 N. E. 194. 
 
 "6 Car. & P. SOI, 503. Brenner v. Ford, 116 La. 550; 40 So. 894. See § 896 
 for facts. 
 
 581 
 
§ 892 AGfiNCY 
 
 This principle has been controlling as relieving the owner in numer- 
 ous cases."^ Where the chauffeur was at liberty for over two hours 
 and drives off without permission on his own business and on his re- 
 turn an accident occurs the employer is not liable.'" 
 
 Where the chauffeur at the time of the accident was engaged on an 
 errand for another employee of the owner without the latter's knowl- 
 edge and consent the master is not liable for an accident occurring on 
 that trip.*' 
 
 Where a chauffeur is told to take a car back to the garage and 
 reaches the city where he is to stop in the afternoon and spends the 
 rest of the day in driving round for his own pleasure visiting saloons 
 and road-houses in company with friends, he was not while thus en- 
 gaged in the service of his employer."* 
 
 § 892. Chauffeur earning money for himself. — The owner of a 
 car is not liable where the chauffeur without his knowledge takes it out 
 at night to tow a disabled car thinking he may earn some money for 
 himself."' 
 
 A mechanic is not the agent of the owner of a garage when he takes 
 an automobile after his hours of work are over and without permis- 
 sion from his employer drives out and gets passengers for hire and 
 drives them home. The fact that he had frequently acted as driver 
 in other cases and taken passengers for hire is immaterial. The court 
 
 65Colley V. Lewis, 7 Ala. App. 593. 61 So. 37 ; Slater v. Advance Thresher Co., 
 97 Minn. 305, 107 N. W. 133; Evans v. Dyke Automobile Co., 121 Mo. App. 266; 
 loi S. W. 1 132; Howe V. Leighton, 75 N. H. 601; 75 Atl. 102; Reilly v. Con- 
 nable, 214 N. Y. 586, 108 N. E. 853 ; Clark v. Buckmobile Co., 107 N. Y. App. 
 Div. 120, 94 N. Y. S. 771 ; Power v. Arnold Engineering Co., 142 App. D. 401, 
 126 N. Y. S. 839; Siegel v. White Co., 142 N. Y. S. 318, 81 Misc. 171; Lotz v. 
 Hanlon, 217 Pa. 339, 66 Atl. 525 ; Curran v. Lorch, 243 Pa. 247; 90 Atl. 62; Jones 
 V. Hoge, 47 Wash. 663, 92 Pac. 433, 125 Am. St. R. 91S, 14 L. R. A. N. S. 216. 
 Liability of employer for injury by chauffeur when using automobile on own ac- 
 count without former's consent 2 N. C. C. A. 422-429, note. 
 
 esjones v. Von Sever, 164 Ky. 80, 174 S. W. 795. 
 
 e^Northup v. Robinson, 33 R. L 496; 82 Atl. 392, 2 N. C. C. A. 439. 
 
 «8Symington v. Sipes, 121 Md. 313 ; 88 Atl. 134, 4 N. C. C. A. 28, 47 L,. R. A. 
 N. S. 662. 
 
 BsGlassman v. Harry, 182 Mo. App. 304, 170 S. W. 403. 
 
 582 
 
DEVIATIONS § 893 
 
 remark that the question of estoppel based on his apparent authority 
 is not raised by the pleadings.'" 
 
 § 893. Servant leaving vehicle— omissions of duty.— In Hayes v. 
 Wilkins" the defendant's driver en route to the home stable after the 
 day's work, did not follow the shortest route because it was blocked. 
 On the way he left his horse standing unhitched, while he went into a 
 pool room to secure some tobacco. The horse ran away and injured 
 plaintiff. Chief Justice Knowlton, for the court, says : 
 
 "While the route that he took was not the shortest, it was but 
 little longer than the other, and the jury might have found that he 
 chose it because the other was blocked by teams, and that there- 
 fore he was within the scope of his employment up to the time 
 when he left the horse. He went ino a pool room to get some to- 
 bacco, and this movement, treated as an independent act, was not 
 for the master's benefit, nor within the scope of his employment as 
 a servant. But his custody of the horse up to the time he left 
 him, was in the performance of the defendant's business, and any 
 negligence in maintaining that custody was negligence for the con- 
 sequences of which the defendant is liable. While he had the 
 horse in custody for his master, and was charged with the duty of 
 continuing this custody as a servant, he negligently omitted to 
 continue it, and as a consequence the horse ran away. His pur- 
 pose in going into the pool room is immaterial. His negligence oc- 
 curred while he was directly engaged in his master's business, by 
 the mere omission of that which he should have done in the busi- 
 ness. If the attempt were to charge the master for negligence in 
 the performance of the act of going to buy tobacco, the case would 
 be different. * * * But the omission and failure to continue 
 the proper custody of his horse when he had him in custody for 
 the master, was an omission to perform his duty as a servant 
 while he was acting for his master. This omission, quite apart 
 from the purpose which accompanied it, was a direct and proxi- 
 mate cause of the plaintiff's injury. 
 
 "The case is different from McCarthy v. Timmins," in which 
 the driver, for his own purposes had driven the team away from 
 the streets on which he should have driven it for his master, and 
 had ceased to act within the scope of his employment before the 
 negligent omission that caused the accident." 
 
 ">Christensen v. Christiansen, Tex. Civ. App. ; 155 S. W. 995 ; 4 N. C. C. A. 32. 
 'I194 Mass. 223, 80. N. E. 449. 
 '2178 Mass. 378, 59 N. E. 1038. 
 
 583 
 
§ 894 AGENCY 
 
 § 894. Injurious acts of an employee done for amusement. — 
 Where the employee while engaged in the service of his employer, does 
 or omits an act not contemplated by that service, even though it be 
 solely for his own entertainment and pastime, the employer will be 
 liable. Thus, a locomotive engineer blew off steam in order to frighten 
 children, in consequence of which a child broke its leg. The company 
 was held responsible.''^ 
 
 In this case Chief Justice Ladd observed (p. 346) ; 
 
 "The engineer was properly engaged in the use of the machinery 
 of the company, and it can make no difference whether the escape 
 of steam was negligently permitted or wilfully done by the engi- 
 neer, any more than if he had wilfully run his engine against ap- 
 pellee's wagon and team and this produced the injury." 
 
 § 895. Disobedience. — "Disobedience to his master's express or- 
 ders will not in every case, have the effect of making the act disobedi- 
 ently done by the servant, an act outside the scope of his employment 
 so as to relieve the master from liability. Much depends on the orders 
 of the master who has a right to limit the sphere of his servant's em- 
 ployment; but if the servant acting within that sphere, violates the 
 orders of his master, his master is responsible to third persons to whom 
 damage is thereby caused."'* 
 
 In connection with the rule as just stated, that author cites Croft 
 v. Alison,'^ wherein the court say, concerning the distinctions noted 
 above : 
 
 "The distinction is this, if a servant driving a carriage, in order 
 to effect some purpose of his own, wantonly strike the horse of 
 another person and produce the accident, the master will not be 
 liable. But if, in order to perform his master's orders, he strikes 
 but injudiciously, and in order to extricate himself from a diffi- 
 culty, that will be negligent and careless conduct for which the 
 master will be liable, being an act done in pursuance of the serv- 
 ant's employment. The case, therefore, has been properly left to 
 the jury." 
 
 "Alsever v. Minn. & St. L. R., ii§ la. 338, 88 N. W. 841. 
 '^Smith's Master and Servant, 5th Ed. 295. 
 "4 B. & Aid. sgo. 
 
 584 
 
DEVIATIONS § 895 
 
 Powell V. Devenny'''' was a case where the driver of a truck had left 
 it standing in a certain place contrary to his employer's orders. The 
 court, by Mr. Justice Fletcher, say : 
 
 "The servant was rightfully in possession of the truck, and 
 being thus rightfully in possession and about his master's business, 
 the master must be responsible for his neglect in improperly leav- 
 ing the truck in the street. 
 
 "The defendant can no more be exempted from liability, be- 
 cause his servant disobeyed his orders in not placing the truck 
 on the lot provided for it, than a master can be exempted from 
 liability for damage done by his servant in driving carelessly 
 against a carriage when he has been ordered to drive carefully and 
 to avoid coming in contact with any carriage. The servant being 
 about the business of his master, the master must be responsible 
 for his acts, and cannot exempt himself by any order he may give 
 the servant."'^ 
 
 In the frequently cited case, in the Supreme Court of the United 
 States, Philadelphia, Etc., R. R. Co. v. Derby," decided in 1852, the 
 facts were that the plaintiff was injured in a railroad collision, which 
 grew out of disobedience of orders by the engineer. The railroad 
 company contended that it was not liable because its servant, though in 
 the course of his employment, "acted contrary to the express command 
 of his master." Mr. Justice Grier, who wrote the opinion, says on this 
 point : 
 
 "The rule of respondeat superior, or that the master shall be 
 civilly liable for the tortious act of his servant, is of universal ap- 
 plication, whether the act be one of omission or commission, 
 whether negligent, fraudulent, or deceitful. If it be done in the 
 course of his employment, the master is liable; and it makes no 
 difference that the master did not authorize, or even know of the 
 servant's act or neglect, or even if he disapproved or forbade it, 
 he is equally liable if the act be done in the course of his servant's 
 employment. See Story on Agency, 9th ed., sec. 452 ; Smith on 
 Master and Servant, 5th ed. 152. 
 
 "There may be found in some of the numerous cases reported 
 on this subject, dicta which when severed from the context, might 
 seem to countenance the doctrine that the master is not liable if 
 
 "57 Mass. 300. 
 
 "See also Southwick v. Estes, 61 Mass. 385. 
 
 ''14 How. 468, 483. Cited in Ramsden v. Boston & A. R., 104 Mass. 117, § 936. 
 
 585 
 
§ 896 AGENCY 
 
 the act of his servant was in disobedience of his orders. But a 
 more careful examination will show that they depended on the 
 question whether the servant at the time he did the act com- 
 plained of, was acting in the course of his employment, or in other 
 words, whether he was or was not at the time in the relation of 
 servant to the defendant." 
 
 Orders by the master to the servant to run carefully will not absolve 
 the master.'^' 
 
 § 896. Unauthorized use of car on servant's business/" — ^The pre- 
 cise line between the authorized and the unauthorized use of an auto- 
 mobile on the part of the chauffeur, is somewhat indefinite. In some 
 states there are statutes which, in certain particulars define the distinc- 
 tion. The chauffeur's employment frequently involves the necessity of 
 making tests on the road of the working condition of his car. In such 
 cases there can be no question that he is acting within the scope of his 
 employment. Apart from all such considerations, however, in the ab- 
 sence of express authority from his employer, it cannot be success- 
 fully maintained that the chauffeur has any implied right to use his 
 employer's car to serve his own needs and purposes, whether of busi- 
 ness or pleasure. Such acts are wholly outside the contractual rela- 
 tion, and are certainly an "unauthorized use of the vehicle," in point 
 of law amounting to a conversion of the employer's property. In 
 such cases the master cannot be held for the tortious acts of the serv- 
 ant, for they are clearly outside the employment. As illustrations of 
 the doctrine the facts of the following cases are in point : 
 
 Brenner v. Ford*^ was a case in which a child was killed, being run 
 over by a horse and vehicle driven by defendant's employee. Plaintiff 
 charged that the act was committed while the employee was in the 
 exercise of the functions of his employment. The employee was not 
 engaged as a driver but as a groom or stable man, who, taking advan- 
 tage of the absence of his employer, and for his own pleasure, in dis- 
 obedience of positive prohibitory orders, hitched the horse to a buggy 
 and drove it, which was outside of the terms of his employment. The 
 court, by Mr. Justice Nicholls, held, that such use of the vehicle was 
 unauthorized, and that, therefore, the employer was not responsible. 
 
 '»Slothower v. Clark, 191 Mo. App. 105; 179 S.*W. SS; People v. Scanlon, I3i! 
 N. Y. App. Div. 528, 117 N. Y. Suppl. 57. 
 ^'See § 899, for statute on this subject. 
 81 1 16 La. SSO, 40 So. 894. 
 
 586 
 
DEVIATIONS § 897 
 
 In Stewart v. Baruch'^ the facts were (i) that the chauffeur was 
 expressly enjoined by his employer, never to drive the automobile 
 unless expressly authorized to do so, and, (2) that it was his duty, 
 when not excused, to remain in the garage subject to call. On the day 
 in question, knowing that his employer was absent from the city, he 
 took the car without authority, unbeknown to his employer, and, with 
 some companions of his own, visited automobile races in another city. 
 The accident occurred while he was returning from the races. The 
 court held that the employer was not responsible.'^ 
 
 § 897. Unauthorized use of car on master's business. — But where 
 the driver is using the car on the master's business though he had been 
 ordered not to use the car for that purpose, the master will ordinarily 
 be liable.** 
 
 So testimony by the owners of a garage that they had forbidden an 
 employee from taking a car to do errands in should be excluded as its 
 only effect would be to show that he used a forbidden means in per- 
 forming his master's business.*'^ Where a chauffeur had sole charge of 
 a certain car the fact that he had orders never to take it out without 
 permission does not absolve his employer where he took it out without 
 orders which he claimed was for the purpose of testing it after making 
 repairs. '° 
 
 § 898. Trip in response to appeal for aid by friends of owner. — 
 The defendant is not liable when he directs the chauffeur not to take 
 the car out without the express orders of himself or his wife and in the 
 absence of both and with no orders from them the chauffeur does take 
 the car out in response to a telephone message from friends of the de- 
 fendant that they were stranded on the road for want of gasoline.'-^ 
 
 § 899. Statutes on this subject. — Many cases have arisen wherein 
 accidents have occurred growing out of so-called "joy riding" on the 
 part of chauffeurs for which under the rules of respondeat superior, 
 no adequate remedy for the injured person is provided. The legisla- 
 tures of a number of states have in consequence enacted statutes of 
 
 82103 N. Y. App. Div. 577, 93 N. Y. S. 161. 
 
 s^See also Robinson v. McNeill, 18 Wash. 163, 51 P- 355- 
 
 84Kneff V. Sanford, 63 Wash. 503, iig Pac. 1040, 2 N. C. C. A. 422. 
 
 ssQibson v. Dupree, 25 Colo. App. 324, 144 Pac. 1133. 
 
 8«Ward V, Teller Reservoir & Irrigation Co., Colo. 1916; IS3 Pac 219. 
 
 "Riley V. Roach, 168 Mich. 294, 134 N. W. 14, 37 h. R. A. N. S. 834. 
 
 587 
 
§ 90O AGENCY 
 
 a more or less sweeping character, making the unauthorized use of a 
 motor vehicle by anyone, a crime in the large sense of that word, pun- 
 ishable by severe penalties. The recent enactment in Massachusetts 
 is a fair illustration of all such statutes. It is as follows : 
 
 "Whoever upon any way operates an automobile or motor cycle 
 recklessly, * * * qj- ^^o uses a motor vehicle without au- 
 thority, shall be punished by a fine of not more than two hundred 
 dollars or by imprisonment for a term not exceeding six months 
 or by both such fine and imprisonment. * * * A. conviction 
 of a violation of this section shall be reported forthwith by the 
 court or trial justice to the commission, which shall revoke imme- 
 diately the license of the person so convicted. If it appears * * * 
 that the person so convicted is the owner * * * qj. j^^s exclusive 
 control of any motor vehicles as a manufacturer or dealer the 
 commission may revoke the certificate of registration of all motor 
 vehicles so exclusively owned or controlled." 
 
 It is unnecessary to do more than mention that such statutes as the 
 foregoing, in no way derogate from the general law respecting the con- 
 version to one's own use of the property of another. 
 
 § 900. Responsibility of principal for wilful and wanton negli- 
 gence of employee. — This subject cannot better be reviewed than by 
 stating the case of Hawes v. Knowles,*' and quoting the opinion of the 
 court therein by Chief Justice Gray. The case was in tort for damages 
 caused by the defendant's servant, who, while driving defendant's 
 stage-coach, collided with plaintiff's wagon. Plaintiff sought to en- 
 hance the damages by showing that the driver's act was wanton, as well 
 as careless and negligent. On the trial the defendant contended, and 
 asked the court to charge the jury that "he was not liable for any 
 wanton conduct of his servant, but only for his negligence and want of 
 due care in his service, and that if the fact * * * was that the serv- 
 ant when he came in collision with the plaintiff's wagon, acted in such 
 a manner as to wound the feeHngs of the plaintiff, it would not enhance 
 the damages." The court refused so to rule. Judge Gray says : 
 
 "A master is responsible for a wrongful act done by his serv- 
 ant in the execution of the authority given by the master and for 
 the purpose of performing what the master has directed, whether 
 
 88Act of igog, Chap. 534, Sec. 22. 
 SS114 Mass. S18. 
 
 588 
 
DEVIATIONS § 900 
 
 the wrong done be occasioned by the mere negligence of the serv- 
 ant, or by a wanton and reckless purpose to accomplish the mas- 
 ter s busmess m an unlawful manner. Howe v. Newmarch 12 
 Allen (94 Mass.) 49; Ramsden v. Boston & Albany Railroad 
 Co., 104 Mass. 117. 
 
 "In an action of tort for a wilful injury to the person, the man- 
 ner and manifest motive of the wrongful act may be given in 
 evidence as affecting the question of damages, for when the 
 merely physical injury is the same, it may be more aggravated in 
 its effects upon the mind, if it is done in wanton disregard of the 
 rights and feelings of the plaintiff, than if it is the result of mere 
 carelessness. Stowe v. Heywood, 7 Allen (89 Mass.) 118; Smith 
 V. Holcomb, 99 Mass. 552. 
 
 "The evidence introduced at the trial * * * ^^s that the 
 defendant's servant, driving the defendant's coach, drove against 
 the wagon of the plaintiff wantonly, as well as carelessly and neg- 
 ligently. As applied to this evidence, the instruction requested 
 was rightly refused, and the instruction given, fairly construed, 
 was only that if in the act done by the servant in the performance 
 of his master's business by which the plaintiff was injured, there 
 was wantonness or mischief on the part of the wrong-doer which 
 caused additional injury to the plaintiff in body or mind, it would 
 tend to enhance the damages. Thus construed the instruction is 
 unexceptionable."'" 
 
 In Howe v. Newmarch"^ Mr. Justice Hoar extensively reviews au- 
 thorities on this point, and sums them up in rules, which, without 
 deviating from the text, may be expressed as follows : 
 
 first. "The master is not responsible as a trespasser, unless 
 by direct or implied authority to the servant he consents to the 
 wrongful act. But if the master give an order to the servant 
 which implies the use of force and violence to others, leaving to 
 the discretion of the servant to decide when the occasion arises to 
 which the order applies, and the extent and kind of force to be 
 used, he is liable, if the servant in executing the order makes use 
 of force in a manner or to a degree which is unjustifiable." 
 
 Second. "And in an action of tort in the nature of an action on 
 the case, the master is not responsible if the wrong done by the 
 servant is done without his authority, and not for the purpose of 
 executing his orders, or doing his work: So that if the servant, 
 wholly for a purpose of his own, disregarding the object for 
 
 o'See also McCarthy v. Timrains, 178 Mass. 378, 381, 59 N. E. 1038 (quoted 
 sec. 882, in this chapter). 
 "94 Mass. 49. 
 
 589 
 
§ 90I AGENCY 
 
 which he is employed, and not intending by his act to execute it, 
 does an injury to another not within the scope of his employment, 
 the master is not liable." 
 
 Third. "But if the act be done in the execution of the author- 
 ity given him by his master, and for the purpose of performing 
 what the master has directed, the master will be responsible, 
 whether the wrong done be occasioned by negligence or by a 
 wanton or reckless purpose to accomplish the master's business in 
 an unlawful manner.".^" 
 
 The English rule is thus stated by the court of King's Bench, in 
 Croft V. Alison f^ 
 
 "The distinction is this, if a servant driving a carriage, in order 
 to effect some purpose of his own, wantonly strike the horse of 
 another person and produce the accident, the master will not be 
 liable. But if, in order to perform his master's orders, he strikes 
 but injudiciously, and in order to extricate himself from a diffi- 
 culty, that will be negligent and careless conduct, for which the 
 master will be liable, being an act done in pursuance of the serv- 
 ant's employment. The case, therefore, has been properly left 
 to the jury." 
 
 In Doran v. Thomsen'* Mr. Justice Trenchard says on this point: 
 
 "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 tor- 
 tious act of his servant, if the act be done in the course of his em- 
 plo)Tnent in his master's service. Whether so done or not must 
 depend upon the facts of each particular case. Aycrigg v. New 
 York & Erie Railroad, 30 N. J. Law 460." 
 
 IX. Effect 01? Family Reiationship. 
 
 § 901. Relationship of parent and child, etc. 
 
 902. Family car used for family purposes. 
 
 903. Where son drives with father's permission. 
 
 904. Son driving parent. 
 
 905. Father's car taken by son without permission. 
 
 '^Italics by the author of this book. 
 
 9*4 B. & Aid. 590, 592. See Shearman & Redf. on Negligence, Sth ed., sees. 
 ISO, 153, 154, 155! Thompson Com. on Negligence, 2d ed., chap. 16, sec. 552; 
 Wharton on Negligence, 2d ed., sec. 169; Smith's Master & Servant, Sth ed., 
 p. 283 ; Sedgwick on Damages, Sth ed., sec. 378. 
 
 0*74 N. J. L. 445, 66 Atl. 897. 
 
 59° 
 
FAMILY EEI<ATI0NSHIP § 9OI 
 
 906. Where son learning to drive. 
 
 907. Father has burden to prove son had no authority. 
 
 908. Son following father's custom in leaving car unlighted. 
 
 909. Father's liability for negligence of adult son. 
 
 910. Liability of parent for allowing incompetent child to run car. 
 
 911. Child allowing another to drive. 
 
 912. Whether automobile belongs to son. 
 
 913. Whether driver was servant of absent parent or of child. 
 
 914. Members of family in control in owner's absence. 
 
 915. Driver acting under orders from one of family. 
 
 916. Previous operation by member of family. 
 
 917. Wife as agent of husband. 
 
 918. Wife liable for act of son. 
 
 919. When husband and wife both liable for act of child. 
 
 § 901. Relationship of parent and child, etc. — The essence of the 
 doctrine of respondeat superior is that of agency. The relation of 
 parent and child, or husband and wife, or other family connection, 
 unaccompanied by the contractual relation of employer and employee, 
 is not sufficient to create responsibihty on the part of the one for the 
 act or omission of the other."^ 
 
 Even a father is not responsible for the negligence of his minor son 
 in driving the father's car without further evidence of agency."" 
 
 There must exist an authority from the father to the son to do the 
 tortious act or a subsequent ratification of it before responsibility at- 
 taches. This authority may be express or may be found in the actual 
 presence of the father or in a precedent course of action."^ 
 
 '^Shearman & Redf. on Negligence, Sth ed., sec. 144; Thompson Com. on 
 Negligence, 2d ed, sees. 537-538; Collard v. Beach, 81 N. Y. App. Div. 582; 81 
 N. Y. S. 619; Herman v. Schultz, 84 N. Y. Supp. 292; Reynolds v. Buck, 127 Iowa 
 601, 103 N. W. 946; Titus V. Tangeman, 116 N. Y. App. Div. 977, loi N. Y. S. 
 1000; Maher v. Benedict, 123 N. Y. App. Div. 579, 108 N. Y. S. 228; Hiroux v. 
 Baum, 113 Wis. 197, 118 N. W. Repr. 533 (Wis.) ; Winfrey v. Lazarus, 148 Mo. 
 App. 388, 128 S. W. 276; Moon v. Matthews, 227 Pa. St. 488, 76 Atl. 219 (Pa.) ; 
 Schultz V. Morrison, 91 Misc. 248, 154 N. Y. S. 257 ; Roberts v. Schanz, 83 Misc. 
 129, 144 N. Y. S. 824 (N. Y. Sup.). 
 
 »«Parker v. Wilson, 179 Ala. 339, 60 So. 150, 43 L. R. A. (N. S.) 87; 8 N. 
 C. C. A. 300; Erlick V. Heis. (Ala.) 1916; 69 So. 530; Daily v. Maxwell, 152 
 Mo. App. 415, 133 S. W. 351 ; Maher v. Benedict, 123 N. Y. App. Div. 579, 108 
 N. Y. S. 228. 
 
 "Smith V. Jordan, 211 Mass. 269; 97 N. E. 761, 8 N. C. C. A. 301. 
 
 591 
 
§ 902 AGENCY 
 
 § 902. Family car used for family purposes. — There is a class of 
 cases where the head of a family buys an automobile for the use and 
 pleasure of his family and the courts incline to hold that when a car 
 bought for family use is used for that purpose the owner is liable for 
 negligence in its operation.'* 
 
 The doctrine has been enunciated in different cases as follows: — 
 
 It seems that if a parent owns an automobile used for the pleasure of 
 her family and at the time of the collision her minor daughter was 
 carrying out the general purpose for which the machine was kept by 
 driving it for the recreation of the family the parent is liable.®' 
 
 Where an automobile is kept by a father for family use and the 
 eighteen-year-old son takes his sister out riding as he was permitted 
 to do the father is liable although he knew nothing about this trip and 
 although the son was out on a pleasure trip, an independent enterprise 
 of his own. The court holds that the father had provided the car for 
 just this sort of use and that the son was carrying out the business of 
 his father."" 
 
 When an automobile is provided for family use and is being used 
 by another member of the family than the owner but with the owner's 
 consent, he should not be heard to say that such other is not his servant 
 or agent. So unless an adult son is living with his father and he takes 
 the family automobile for a pleasure trip as he had done before the fa- 
 ther is liable. It appeared the son had never been refused the use of 
 the car when he wanted it.^ 
 
 Where a father had bought an automobile for the general use of his 
 family which was registered in his name but the only member of the 
 family licensed to operate it was his minor son, who injured the plain- 
 tiff while driving the machine at the request of his mother the father 
 may be found liable. Although the father had no knowledge of the 
 particular journey in question it is enough if he knew of other similar 
 
 ssCohen v. Borgenecht, 83 Misc. 28, 144 N. Y. S. 399 (N. Y. Sup.) ; Kayser v. 
 Von Nest, 125 Minn. 277, 146 N. W. 1091, 51 L- R- A. N. S. 970. Liability of 
 owner of automobile for negligence of member of family in operating it. 4 N. 
 C. C. A. 33-37 note. Where an automobile is bought for the pleasure of the 
 family the owner is liable when used by a minor child for his pleasure. Daily 
 V. Maxwell, 152 Mo. App. 41S, i33 S. W. 3SI. 
 
 flsSchumer v. Register, 12 Ga. App. 743, 78 S. E. 73i. 8 N. C. C. A. 300. 
 
 i<">Stowe V. Morris, 147 Ky. 386, 144 S. W. 52. 
 
 iHays V. Hogan, 180 Mo. App. 237, 165 S. W. 1125. 
 
 592 
 
FAMILY RELATIONSHIP § 902 
 
 trips and if he expected his wife to order their son to drive the car for 
 her convenience.^ 
 
 A petition alleging that the defendant kept an automobile for the 
 comfort and pleasure of her family including her son who was her 
 agent in running said car for the comfort and pleasure of himself and 
 friends who were riding with him by and with the consent of the owner 
 is not subject to demurrer. The court considers at length various cases 
 and declines to follow the New Jersey rule.' 
 
 Where a non-resident of the state sends an automobile to his family 
 residing in the state for their pleasure and his son while driving the 
 machine alone on the way to take some friends of his to ride is negli- 
 gent the owner of the car is liable.* 
 
 Where a minor son is driving an automobile owned by his father 
 and kept for family use and is driving his sister and a guest of the 
 family on a pleasure trip he is the father's servant. 
 
 A father may be found liable where his daughter is driving his ma- 
 chine furnished for family use in the absence of both parents enter- 
 taining her own friends although both parents had urgently advised 
 and requested the daughter not to drive the machine again." 
 
 Where an automobile is being driven by the defendant's son the fact 
 that it was at the time occupied by his immediate family and invited 
 guests is affirmative evidence that it was being used in the father's 
 affairs. Where there is also evidence that the son had invited them 
 as his guest it is a question for the jury whether he was acting as his 
 father's agent. It was within the scope of the father's business to 
 furnish his wife and daughter, who were living with him with out- 
 door recreation and it was for the jury to say whether this was the 
 situation.'' 
 
 The statement of the defendant's son that he was using his auto- 
 mobile because he did not wish to walk simply raises an issue of fact as 
 to whether the car was then in the service of the defendant.' 
 
 The very strong Alabama court has however refused to follow this 
 doctrine and has held in a recent case that where a physician has two 
 
 ^Smith V. Jordan, 211 Mass. 269, 97 N. E. 761, 8 N. C. C. A. 301. 
 ^Griffin V. Russell, 144 Ga. 27s; 87 S. E. 10. 
 *Davis V. Ivittlefield, 97 S. C. 171. 81 S. E. 487, 8 N. C. C. A. 303. 
 'McNeal v. McKain, 33 Okla. 449, 126 Pac. 742, 41 L. R. A. N. S. 775- 
 «Birch V. Abercombie, 74 Wash. 486, 133 Pac. 1020, So L. R. A. (N .S.), 59- 
 TMissell V. Hayes, 86 N. J. h. 348, 91 Atl. 322. 
 
 593 
 38 
 
§ 903 AGENCY 
 
 machines for his business use and permits his minor son to use one 
 when not in use he is not liable where the son injures the plaintiff 
 while running it on his own pleasure with two of his own friends. The 
 court declines to follow. Daily v. Maxwell, 152 Mo. App. 415, 133 S. 
 W. 351, and other similar cases. The court remarks that these cases 
 extend the principle of liability beyond anything known before the ad- 
 vent of the automobile.' 
 
 § 903,. Where son drives with father's permission. — ^The weight 
 of authority seems now to incline to the view that where a father pro- 
 vides an automobile for the pleasure of his child, he is liable for the 
 child's negligence in running the car.^" If a father owns an automo- 
 bile and permits his son to run it, the son is as a matter of law his 
 agent.^^ 
 
 The father, the owner of an automobile, is liable for the act of his 
 son in driving the father's car where the son had been given control 
 of the car when purchased and was then engaged with the defendant's 
 knowledge and consent in driving it with his brother and some friends 
 to a ball game.^' 
 
 A boy eleven years of age who purchases an automobile by permis- 
 sion of his father who paid all bills for it, is the agent of the father 
 where the boy had unlimited authority to call for the car and use it 
 at any time. The car is used for the puropse of its ownership by the 
 boy who was intended to use it. The mere fact that he was using it 
 for his own pleasure is immaterial.^' 
 
 A son operating an automobile may do so as his father's servant, and 
 evidence that the father saw him start on a trip with guests and told 
 him he would better light his headlights is evidence that he was acting 
 as his father's agent.** 
 
 sMarshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527. 
 
 sParker v. Wilson, 179 Ala. 361, 60 So. 150. 
 
 loDailey v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, 8. N. C. C. A. 301; 
 contra Schumer v. Register, 12 Ga. App. 743; 78 S. E. 731, 8 N. C. C A. 
 300, apparently distinguishing the case of a car bought for family use. 
 
 iiHufft V. Dougherty, 184 Mo. App. 374, 171 S. W. 17. 
 
 i2Winn V. Haliday, (Miss.) 1916, 69 So. 685. 
 
 "Allen V. Bland, Tex. Civ.- App. ; 168 S. W. 3S ; 8 N. C. C. A. 299- 
 
 i*Bourne v. Whitman, 209 Mass. ISS ; 95 N. E. 404 ; 35 L- R- A. N. S. 701 ; 2 
 N. C. C. A. 318; 6 N. C. C. A. 317. 
 
 594 
 
IfAMII,Y RELATIONSHIP § 904 
 
 § 904. Son driving parent.— Where the plaintiff's son is driving 
 the plaintiff in her buggy on her journey he is her servant and his 
 negligence is hers.^" 
 
 § 905. Father's car taken by son without permission. — There can 
 be no liability where the car was taken by the son without the father's 
 knowledge or direction and for his own purpose.^" The owner is not 
 liable where his stepson, who is not living as a member of his family 
 takes the automobile without permission in the absence of the owner 
 and his wife.^' 
 
 There was found no evidence of liability by a father for the negli- 
 gence of his minor son where the son took the automobile against his 
 father's express orders although he had done this before and was 
 known as a reckless driver and the father had left the garage unlocked 
 where the car was kept.^' 
 
 § 906. Where son learning to drive. — The minor son may be 
 found the father's agent in taking lessons in running a car recently 
 purchased by his father.^' 
 
 § 907. Father has burden to prove son had no authority. — On 
 proof that the father of the driver of an automobile is its owner the 
 burden is upon him to prove that the son had not his consent in using 
 the car.^o 
 
 § 908. Son following father's custom in leaving car unlighted. — 
 If a son uses his father's car and leaves it unlighted standing on the 
 street as his father was accustomed to leave it he has the implied sanc- 
 tion of his father to do so and his father is liable for his act.^^ 
 
 § 909. Father's liability for negligence of adult son. — Where an 
 adult son living at home and working for his father drives his father's 
 automobile to a social gathering where his mother and sister is, the 
 
 isTyler v. Hoover, 92 Neb. 221, 138 N. W. 128. 
 
 "MaKer v. Benedict, 123 N. Y. App. Div. 579. 108 N. Y. S. 228; Lewis v. 
 Amorous, 3 Ga App. 5°. 59 S. E. 338; Reynolds v. Buck, 127 Iowa 601, 103 
 N. W. 946. 
 
 "Smith V. Burns, 71 Oregon 133, 142 Pac. 352, L. R. A. 191S A. 1130. 
 
 isLinville v. Nissen, 162 N. C. 951 77 S. E. 1096, 4 N. C. C. A. 11. 
 
 "Hiroux V. Baum, 137 Wis. 197; nS N. W. 533, i9 L. R. A. N. S. 332- 
 
 2«Hays V. Hogan, 180 Mo. App. 237, 165 S. W. 1125. 
 
 "Jaquith v. Worden, 73 Wash. 349, 132 Pac. 33, 48 L. R. A. (N. S.), 827- 
 
 595 
 
§ 9IO AGENCY 
 
 father may be held liable although it appears the son had never taken it 
 without permission before and he had no permission in this instance.^" 
 
 A father who owns a car and keeps it for the use of his family is 
 liable for the negligence of his son 21 years of age who lived with his 
 parents and acted as chauffeur. The fact that the son was alone in the 
 car is immaterial where his use was one of the purposes of the de- 
 fendant in keeping the car. 'The fact that the son was of age is not 
 decisive as frequently fathers continue not only to support their chil- 
 dren after they have become of age but to provide them as members of 
 the family with the means of recreation and pleasure.^" 
 
 § 910. Liability of parent for allowing incompetent child to run 
 car.; — The mere fact that the driver is the son of the owner will not 
 make the latter liable but he may be liable if he permits his car to be 
 run by his son 16 years old who may be found incompetent,^* or he 
 may be responsible for permitting his son to operate when under the 
 law he was too young to have a license.^' 
 
 § 911. Child allowing another to drive. — ^Where the defendant's 
 minor daughter is operating a car with his permission and she permits 
 another to run the car while she is sitting on the seat with him this does 
 not absolve the defendant from liability.^* 
 
 But a declaration alleging that the defendant owned an automobile, 
 that her minor daughter was riding in it and had control of it the driver 
 
 being one S when it negligently collided with the plaintiff, is bad 
 
 as it does not connect the defendant in any way witli the operation of 
 the machine.^' 
 
 § 912. Whether Automobile belongs to son.— The jury's verdict 
 is decisive on the question of the ownership of an automobile and 
 whether the driver was the servant of the defendant where the defend- 
 ant contended that he had given the auto to his son and had leased to 
 him the garage from which the car and driver came but where corrob- 
 
 22Ploetz V. Holt, 124 Minn. 269, 144 N. W. 745- 
 
 28Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527- 
 
 2*Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351. To the same effect see 
 Linville v. Nissan, 162 N. C. 95; 17 S. E. 1096, 4 N. C. C. A. 11; Parker v. 
 Wilson, 179 Ala. 339, 60 So. 150, 43 L. R. A. (N. S.), 87, 8 N. C. C. A. 300. 
 
 25Schultz V. Morrison, 91 Misc. 248, 154 N. Y. S. 257- 
 
 ssKayser v. Von Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. N. S. 170. 
 
 s'Schunier v. Register, 12 Ga. App. 743, 78 S. E. 73i, 8 N. C. C. A. 300. 
 
 596 
 
FAMILY EULATIONSHIP § 913 
 
 orative evidence by the production of business books and papers was 
 lacking and it appeared that there were various suspicious circum- 
 stances.^* 
 
 § 913. Whether driver was servant of absent parent or of child. 
 — Where an automobile was owned by the defendant and used both 
 by her and her eighteen year old daughter it is a question for the jury 
 whether the chauffeur paid for by the defendant is her servant while 
 acting under the direction of the daughter. The mother is not liable 
 simply because of the relationship. There must have existed an authori- 
 ty from the mother to the daughter to do the act or a subsequent rati- 
 fication of it, before responsibility attached to the parent. But the fact 
 that the mother was not present when the daughter directed the chauf- 
 feur to go to his supper and bring the car back afterwards is not de- 
 cisive. 
 
 The authority to the daughter may have been express or it may have 
 arisen by implication from all the atteftdant circumstances. The au- 
 thority may have been found in an express or implied direction or in a 
 prevalent course of conduct.^' 
 
 The daughter of the owner assisting the chauffeur cannot be held 
 liable for the chauffeur's neglect.^" 
 
 § 914. Members of family in control in owner's absence. — The 
 owner of an automobile may be liable for the negligence of his chauf- 
 feur acting under orders of a member of the family in the owner's 
 absence.*^ 
 
 § 915. Driver acting under orders from one of family. — Where 
 the defendant's chauffeur is operating it not upon any errand of his 
 own but in obedience to an order given by her daughter, who was on 
 the way to the defendant's home the burden was on the defendant to 
 show that at the time the chauffeur was not acting within the scope of 
 his employment.*^ 
 
 The owner of an automobile held liable for injuries to one carried 
 by his wife's orders by his chauffeur.** 
 
 28Kurtz V. Tourison, 241 Pa. 425, 88 Atl. 656. 
 29Carrier v. Donovan, 88 Conn. 37, 89 Atl. 894. 
 ^^Titus V. Tangeman, 116 N. Y. App. Div. 977, loi N. Y. S. 1000. 
 *iWinfrey v. Lazarus, 148 Mo. App. 388; 128 S. W. 276; Moon v. Matthews, 
 227 Pa. St. 488; 76 Atl. 219. 
 *2Hazzard v. Carstairs, 244 Pa. St. 122, go Atl. SS6. 
 a»McHarg v. Adt, 163 App. Div. 782, 149 N. Y. S. 244 (N. Y. Sup.). 
 
 597 
 
§ 9l6 AGENCY 
 
 § 916. Previous operation by member of family. — The plaintiff 
 may recover where the defendant's brother drove the defendant's ma- 
 chine and the brother had often been seen operating it before where 
 there is no evidence that the brotlier was on business of his own.^* 
 
 § 917. Wife as agent of husband.^*^ — The wife is the agent of the 
 husband in driving his car as she is accustomed to do.'* So the hus- 
 band may be Hable for the negligent driving of his wife in his absence 
 notwithstanding the married woman's property act authorizes a mar- 
 ried woman to transact business on her own account and to sue and be 
 sued without joining her husband.'^ 
 
 A husband is liable for the negligence of his wife where he bought a 
 machine and gave it to her and he is sitting on the front seat with her 
 while she is driving at the time of the accident. This is although he 
 gave no directions and knew nothing about driving. It is presumed 
 that where he is present but not governing her actions at common law 
 that both are liable. Furthermore the rule that negUgence cannot be 
 imputed to a passenger will not be extended to this case of a wife or 
 minor child driving. It will be presumed that he had control to prevent 
 a clear act of negligence.'^ 
 
 Under the New York Domestic Relations law it has been held how- 
 ever that the husband is not Hable for the wife's negligence in driving 
 for her own pleasure.'* 
 
 § 918. Wife liable for act of son. — ^Where an automobile is the 
 separate property of the wife and is used with her consent for family 
 business and in her absence is used by her son in driving a servant 
 away who had been hired for a luncheon the mother knew was to be 
 given by her daughters the mother is Uable for the negligence of the 
 son in so driving.'" 
 
 § 919. When husband and vfiie both liable for act of child.— 
 Where an automobile is owned by a husband and wife as a community 
 and used for the pleasure and business of the community and is care- 
 
 s^Levine v. Ferlisi, 192 Ala. 362, 68 So. 269. 
 
 s^Crawford v. McElhinney, 171 Iowa 606, 154 N. W. 310. 
 
 soAronson v. Riker, 185 Mo. App. 528, 172 S. W, 641. 
 
 sTMinor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214- 
 
 ssTanzer v. Read, 160 App. Div. 584, 145 N. Y. S. 708. 
 
 »»Gingman v. Campbell, 80 Wash. 543, 141 Pac. 1031. 
 
master's liability § 920 
 
 lessly driven by the daughter judgment is properly entered against both 
 husband and wife.*" 
 
 X. Master's Liability to Servant.*^ 
 
 § 920. In general. 
 
 921. Driver a fellow servant. 
 
 922. Liability to servant for employing driver who drank. 
 
 923. Workmen's compensation law. 
 
 924. When servant called upon to act in emergencies. 
 
 925. Duty of master to supply safe vehicle and appliances — ^backfiring. 
 
 926. The risks assumed by the employe. 
 
 927. Chauffeur as passenger while intoxicated owner driving. 
 
 928. Mechanician on racing car. 
 
 929. Burden of proof — functions of jury, etc. 
 
 930. Contributory negligence of chauffeur. 
 
 931. Right to discharge servant — services "satisfactory to the master." 
 
 § 920. In general. — In the consideration of this subject general 
 principles are presented without reference to employer's liability statutes* 
 
 In some cases where a servant "incurs loss or damage in the course 
 of his employment, he may recover from his master the amount of the 
 loss or damage upon a contract of indemnity, to be implied from the 
 contract of service. * * * Thus, if a servant, in obedience to the 
 command of his master, commit a trespass * * * he is entitled to 
 an action against his master for the damages he may suffer. * * * 
 In respect to offences in which is involved any moral delinquency or 
 turpitude, all parties are deemed equally guilty, and courts wll not in- 
 quire into their relative guilt. But where the offence is merely malum 
 prohibitum, and is in no respect immoral, it is not against the policy of 
 the law to inquire into the relative delinquency of the parties and to ad- 
 minister justice between them, although both parties are wrong- 
 doers."*^ The reason for the rule is that the parties are not in pari 
 delicto.*^ 
 
 ♦"Switzer v. Sherwood, 80 Wash. 19, 141 Pac. 181, 9 N. C. C. A. 834. 
 
 *iServant injured by joint negligence of master and a third person, see post 
 § 1042. 
 
 *2Smith's Law of Master & Servant, sth ed., 194; Cooley on Torts, 3d ed., 
 p. 255. 
 
 *3Lowell V. Boston & L. R., 40 Mass. 24, 33. 
 
 599 
 
§ 921 AGENCY 
 
 § 921. Driver a fellow servant. — ^Where an employee of the de- 
 fendant drives other employees from one factory to another he is a fel- 
 low servant and not a superintendent and the defendant is not re- 
 sponsible. The act of driving the truck is not an act of superintend- 
 ence but is manual labor.** 
 
 When a chauffeur of the defendant is driving one of his domestic 
 servants to church she is not his fellow servant at that time although 
 he was hired by his contract with her to convey her to church.*^ 
 
 An employee of a salvage company going to a fire sitting in the rear 
 seat of the automobile may recover for injuries caused by its reckless 
 driving.*' But an employee riding in his employer's automobile after 
 working hours contrary to rule is a trespasser and cannot recover 
 for the negligence of the driver a fellow servant.*' 
 
 § 922. Liability to servant for employing driver who drank. — 
 Evidence that it was the custom of the driver to drink while driving is 
 not sufficient to charge his employer wih liabiliy to a fellow servant for 
 employing an incompetent servant. This does not state or mean that 
 he was accustomed to drink to excess or so as to unfit him for his 
 work.*' 
 
 § 923. Workmen's Compensation Law. — Various questions are 
 beginning to arise in those states where a workmen's compensation law 
 has been enacted involving liability for accidents to chauffeurs. 
 
 An employee cannot recover under the Workmen's Compensation 
 Law for death in using an automobile which he had been forbidden to 
 use. Permission might be implied from continuous public use but 
 where he had been forbidden again on the day of the accident there 
 can be no recovery.** 
 
 An employee may recover under the Workmen's Compensation Law 
 where he overturns an automobile which he is driving after hours on 
 
 **Buckley v. Dow Portable Electric Co., 209 Mass. 152; 95 N. E. 222. 
 
 ^sO'Bierne v. Stafford, 87 Conn. 354; Bierne, 87 Atl. 743, 46 L. R. A. N. S. 
 1183; 7 N. C. C. A. 858, contra Erjauschck v. Kramer, 141 App. Div. 545, 126 
 N. Y. S. 289 (Sup.). 
 
 "Louisville Ry. Co. v. Wehner, 153 Ky. 190, 154 S. W. 1087. 
 
 *7 Walker v. Fuller, 223 Mass. 566, 112 N. E. 230. 
 
 *8Brooks V. Saint Jeanne, 228 U. S. 688, 33 Sup. Ct. Rep. 700, 7 N. C. C. 
 
 A. 592- 
 *9Reimers v. Proctor Pub. Co., 85 N. J. L. 44i, 89 Atl. 93i. 4 N. C. C. A. 738. 
 
 600 
 
master's I^IABILITY § 924 
 
 his master's business unless he is driving so fast as to be a case of 
 speed mania.*" 
 
 But one who is driving an automobile at an unlawful rate of speed 
 and is killed cannot recover utider the Workmen's Compensation Law 
 as he is barred by "wilful misconduct." It is immaterial that the rate 
 at which he was driving was not unusual or foolhardy.°^ 
 
 Injury to a chauffeur caused by the backfiring of the engine,"^ or to 
 a workman who had to cross the road to a toilet when he was struck 
 by an automobile are injuries arising out of and in the course of his 
 employment."^ 
 
 A police officer was allowed to recover as a city employee when hurt 
 in an automobile accident in a recent case.** 
 
 § 924. When servant called upon to act in emergencies. — In 
 Shearman & Redf, on Negligence,** it is said, "If the master calls 
 suddenly upon the servant under circumstances which give no time 
 for consideration, or if he asks the servant to extricate him from 
 danger, he is bound to indemnify the servant for injuries sustained 
 through obedience to such a call."*' 
 
 § 925. Duty of master to supply safe vehicle and appliances — 
 backfiring. — It is the duty of the master to exercise ordinary care, 
 to provide suitable and safe vehicles and appliances, and to keep them 
 in suitable and safe condition. Judge Cooley,*^ thus states the matter : 
 
 "The rule of law is that it is the duty of the master to exercise 
 ordinary care and prudence to provide reasonably safe machinery, 
 tools and appliances and to keep them so. The point here is, not 
 that the master warrants the strength or safety of his machinery 
 or appliances, but that he is personally negligent in not taking 
 proper precautions to see that they are reasonably strong and 
 
 ""Phillips V. Chanslor-Canfield Midway Oil Co., Cal. Ind. Ace. Com., 9 
 
 N. C. C. A. 258. 
 
 siFidelity & Deposit Co. v. Industrial Accident Commission, 171 Cal. 28; 
 IS4 Pac. 834. 
 
 52Newcorab v. Albertson, 85 N. J. L. 435, 89 All. 928, 4 N. C. C. A. 783. 
 
 BsZabriskie v. Erie R. Co., 85 N. J. L. iS7; 88 Atl. 824, 4 N. C. C. A. 778. 
 
 B*Blynn v. Pontiac, 131 N. W. 681 (Mich.) Ind. Ace. Bd., S N. C. C. A. 910. 
 
 ""Sth ed., sec. 186. 
 
 "'See also Thompson Com. on Negligence, 2d ed., sec. 7783. 
 
 "^On Torts, 3d ed., 1139. Liability for furnishing defective machine to em- 
 ployee, see ante, sec. 228. 
 
 601 
 
§ 9^5 AGENCY 
 
 safe. The law does not require him to guarantee the prudence, 
 skill or fidelity of those from whom he obtains his tools or 
 machinery, or the strength or fitness of the materials they make 
 use of. If he employs reasonable care and prudence in selecting 
 or ordering what he requires in his business, such as every pru- 
 dent man is expected to employ in providing himself with the 
 conveniences of his occupation, that is all that can be required of 
 him ; but this at his peril he must employ, and the duty is not one 
 he can delegate so as to relieve himself from the contingent lia- 
 bility in case of failure in performance." 
 
 "The master is not bound to provide the very best materials, imple- 
 ments or accommodations which can be procured, nor those which are 
 absolutely the most convenient or the most safe. His duty is sufficient- 
 ly discharged by providing those which are reasonably safe and fit. 
 Still less is he bound to furnish every new improvement or invention, 
 but he may wait even where a question of safety is involved, until an 
 alleged improvement has been tested and has come into somewhat gen- 
 eral use. Only such appliances, safeguards and tests as are usual can 
 be required."'' 
 
 A manufacturer is not negligent in maintaining a track for testing 
 purposes built for a speed of only thirty miles an hour although it 
 may be necessary to drive both faster and slower for testing when the 
 straight stretches of the track can be used for these other speeds.'*" 
 
 Where the chauffer is injured by backfiring in a car which he had 
 examined himself he cannot recover against his employer."" 
 
 In a very recent case°°^ an employe failed to recover for injuries due 
 to backfiring in cranking a truck engine. The court's statement of 
 the case is so instructive that we quote it as follows: 
 
 "The plaintiff advanced the gas lever approximately one-third 
 of the quarter circle through which it turned, and moved forward 
 about the same distance, the spark lever. He then attempted to 
 
 «8Shearman & Redf. on Negligence, sth ed., sec. 195. See Ingalls v. Bills, 
 SO Mass. I, 15. See Menges v. Edwards Motor Car Co., 165 App. Div. 73, 
 150 N. Y. S. 989, holding the question to be one for the jury. 
 
 "sBlick V. Olds Motor Works, 175 Mich. 640, 141 N. W. 680, 49 L. R. A. 
 N. S. 88. 
 
 «» Anderson v. Van Riper, 128 N. Y. S. 66; 9 C. C. A. S9. 
 
 See also Newcomb v. Albertson, 85 N. J. L. 43S; 89 Atl. 928, 4 N. C. C. A. 
 783, cited under § 923. 
 
 «oaCard V. Turner Center Dairying Assn., Mass. 1916, 112 N. E. 187. 
 
 602 
 
master's liability § 926 
 
 crank the engine ; it kicked back, and the crank handle struck him, 
 causing the injury. Immediately, without changing the levers, he 
 again turned the crank, and the engine started. 
 
 "The evidence shows that a "kick-back' is the result of an ex- 
 plosion coming before the piston has reached the head of the 
 cylinder. If the spark lever is advanced on the dial, it changes 
 the position of the contact points, so that the cam drives them 
 apart before the piston has gone over the center. On the other 
 hand, when the spark lever is retarded, the spark comes after the 
 piston has passed the center. Before cranking a car it is im- 
 portant to have the spark lever in a retarded position. With a 
 new car, this lever should be pushed back as far as it can go. If 
 the car is worn so there is lost motion, the spark should be ad- 
 vanced in order to correspond with this loss. 
 
 "The only evidence tending to show a defect or want of repair, 
 came from the plaintiff, who said he had noticed many times be- 
 fore he was hurt, that the engine would 'skip.' Assuming this to 
 be so, it does not show that the 'skipping' was in any way con- 
 nected with the backward motion of the engine. The plaintiff's 
 experts testified that the 'skipping' of an engine might indicate a 
 short circuit, the stripping of a gear, or a lost pin ; and it might 
 happen when 'there was no kicking back or any danger whatever.' 
 It did not directly appear what caused the 'skipping,' nor that any 
 conditions existed which were likely to cause it. 
 
 "It further appeared that the more force used in cranking, the 
 greater the momentum given to the fly-wheel, thus causing the 
 piston to go over the center. 
 
 "Considering the entire evidence, we do not discover anything 
 indicating a defect or want of repair, which caused the crank 
 handle to hit the plaintiff. If the engine was in proper condition, 
 advancing the spark lever would cause the backward motion ; and 
 if the machine was worn by use, a proper adjustment of the levers 
 would compensate for the lost motion. Under these circum- 
 stances we do not see how it can be successfully contended that the 
 defendant was negligent." 
 
 § 926. The risk assumed by the employe. — The nature of our 
 subject, fortunately, does not lead far into the field of controversy con- 
 cerning the employer's liability to his servant for injuries sustained 
 by the servant while in the prosecution of the master's work. The 
 following proposition taken from well-known text writers on this 
 subject, may be accepted as general rules applicable to the relation 
 
 603 
 
§ 926 AGBNCY 
 
 of employer and chauffer. In Shearman & Redf. on Negligence," it 
 is said: 
 
 First. "A servant is held to assume the ordinary risks of the 
 business upon which he enters, so far as those risks, at the time of 
 his entering upon the business, are known to him, or should be 
 readily discernible by a person of his age and capacity in the ex- 
 ercise of ordinary care, and whether the business is dangerous or 
 not. Notwithstanding the general rule that the master is bound to 
 use due care to furnish safe and sound materials, machinery, etc., 
 yet the servant assumes the risk of obvious defects in things which 
 he voluntarily uses, if his work consists in whole or in part, in 
 dealing with dangerous, unsafe or unsound things, known to him 
 to be so, or obviously so, and which, by the very nature of the 
 business, must be used while in that condition." 
 
 Second. "And where a business is obviously dangerous, and 
 is conducted in a manner which is fully known to the servant at 
 the outset, he assumes the risk of its conduct in that manner, al- 
 though a safer method could have been adopted." 
 
 Third. "The ordinary risks of a particular business are part 
 of the natural and ordinary method of conducting that business, 
 even although they might fairly be called extraordinary with ref- 
 erence to a different business, or a different department of the 
 same business." * * * 
 
 Fourth. "In the absence of other evidence of negligence, 
 where master and servant are equally acquainted with or equally 
 ignorant of the dangers the servant assumes, much less can the 
 master be held liable if the servant knows of the hazardous char- 
 acter of the work which he undertakes, and is injured by an acci- 
 dent which could not be foreseen by his employer." 
 
 In Wharton on Negligence,*^ the statement of a rule is found which 
 in a degree is corrolary to those stated. It is as follows : "And for 
 all acts of personal negligence to the servant, the master continues 
 liable. The servant undertakes the risks of the employment as far 
 as they spring from such defects as are incident to all machinery and 
 all service. But this does not include the negligence of the master 
 himself. If the master would be in such case liable to a stranger, he 
 
 BiSth ed., sec. 185. 
 «z2d ed., sec. 205. 
 
 604 
 
master's i,iabiIvITy § 926 
 
 will be liable to the servant." In Thompson's Com. on Negligence,"' 
 the following is stated : 
 
 "An employe cannot recover damages from his employer from 
 an injury proceeding from a defect in something for the safe con- 
 dition of which the employe himself was responsible. This rule 
 applies * * * where, under any circumstances, the injury 
 which the servant receives is properly ascribed either to the con- 
 tributory negligence of the servant, or — what is nearly the same 
 thing, to his acceptance of the risk, or taking the chances of in- 
 jury to himself from the particular act, omission or condition." 
 
 And at Sec. 4630, the same author declares that the servant is : 
 
 "Deemed to undertake the risk of a dangerous work, although 
 ordered thereto by his master, or by the representative of his 
 master, if the danger is so obvious and apparent that an ordinary 
 prudent man, under like circumstances, would refuse to obey." 
 
 At sec. 4632, Dr. Thompson states : 
 
 "That no recovery can be had by a servant from his master, of 
 damages for injuries visited upon the servant by what is variously 
 called casus, inevitable or unavoidable accident, inscrutible acci- 
 dent, or vis major. The reason for this conclusion is two-fold : 
 I. The master is not liable to the servant for injuries arising in 
 this way, seeing that he has been guilty of no negligence or other 
 wrong. 2. As the master is not liable for the injuries arising in 
 this way, the servant necessarily assumes the risk of them." 
 
 At sec. 4657 of the same author, it is said : 
 
 "The general trend of authority in cases where the question is 
 not influenced by statute, is that if the servant, after acquiring 
 knowledge of the danger or defect, remains in the employment 
 without notice or protest followed by the promise of the master to 
 remedy or repair it, he assumes the risks proceeding therefrom, 
 as much as though he had acquired such knowledge before enter- 
 ing the employment ; and he waives any claim for damages against 
 his master in case he receives injury therefrom." 
 
 And so also, the servant assumes the risk (sec. 4663) even when: 
 
 "Required, although after complaint, to continue to work with 
 a defective or dangerous machine or appliance, or in a dangerous 
 place, under a threat of being discharged." 
 
 «'2d ed., sec. 4616. 
 
 605 
 
§ 927 AGENCY 
 
 This proposition is subject, however, to the qualification (sec 4667) 
 that when complaint is made and a promise of repair: 
 
 "The servant will be excused by the law for remaining in the 
 service a reasonable time thereafter to await such reparation, and 
 will not be deemed to accept the risk, unless the danger is so ob- 
 vious, imminent, or glaring, that a reasonably prudent man would 
 not, even after such a promise, encounter it by continuing in the 
 service." In such a case it becomes a question for the jury, 
 whether the servant accepted the risk. 
 
 And, again, referring to Shearman & Redf. on Negligence,"* we 
 find that in no case is the master liable to the servant as an insurer.'" 
 
 Where the chauffer after complaining that the tire is in bad shape 
 and being told that it is all right is injured by it there is a question for 
 the jury as to the assumption of risk."' 
 
 § 927. Chauffeur as passenger while intoxicated owner 
 driving. — A chauffer sitting with his master who is driving does not 
 necessarily assume the risk of his master's negligence although he 
 knows that the master is intoxicated when he obeys the master's order 
 to get in the vehicle.^' 
 
 § 928. Mechanician on racing car. — The position of mechanic- 
 ian on a racing automobile in a race is highly dangerous but the court 
 cannot say that it is so dangerous that no prudent person would under- 
 take it.«« 
 
 A mechanician in a race does not assume the risk of defects in a 
 track of which he was not aware and may recover against his em- 
 ployer for injuries resulting from such defects.""' 
 
 § 929. Burden of proof — functions of jury, etc. — In this class 
 of cases the burden of proof of the master's negligence is on the plain- 
 tiff, and the usual rules of evidence, stated elsewhere, apply.'" The 
 
 «*Sth ed., sec. 184. 
 
 "5See also Ibid. sec. 203, and Wharton on Negligence, 2d ed., sec. 205. 
 
 66Richardson v. Flower, 248 Pa. St. 35; 93 Atl. 777, g N. C. C. A. 61. 
 
 8'Patterson v. Adam, 119 Minn. 283, 137 N. W. 1112. 
 
 esNational Motor Vehicle Co. v. Kellum, (Ind.) ; T09 N. E. 196, 9 N. C. C. A. 
 
 S3, 1916. 
 
 «9National Motor Vehicle Co. v. Kellum, (Ind. 191S) ," log N. E. 196, 9 N. 
 C. C. A. S3, 1916. 
 
 ToSee § 1652, et seq. 
 
 606 
 
master's liability § 930 
 
 same is true concerning the respective functions of the court and 
 jury. 
 
 § 930. Contributory negligence of chauffeur. — "Contributolry 
 negligence is not generally imputed to one who acts erroneously and 
 to his hurt in obeying the directions given by another who is clothed 
 with authority or apparent authority to make them, but it will be a 
 question for the jury."^^ 
 
 § 931. Right to discharge servant — services satisfactory to 
 the master." — Where a contract is made that the services rendered are 
 to be satisfactory to the employer, the master is vested with full power 
 to determine whether the work is satisfactory and "the reasonableness 
 of the grounds of dissatisfaction cannot be inqtiired into by the court 
 * * * in an action by the servant for damages for his discharge."'^ 
 
 Presiding Justice Bland, in Walker v. Grout Auto Co.,'' says : 
 
 "Contracts like the one under review, namely, * * * to per- 
 form services satisfactory to an employer, have often been inter- 
 preted to mean what they say, that is, that * * * the services 
 rendered" must be "satisfactory to the employer in order to show 
 performance." 
 
 In Kendall v. West,'^ Mr. Justice Hand, speaking for the court, 
 says: 
 
 "The contract of employment provided that appellant should 
 render 'satisfactory services,' for which he was to receive the sum 
 of $250 per week. It contained no provision in any manner lim- 
 iting the appellee in the exercise of his judgment as to what 
 should be deemed 'satisfactory services.' The appellant did not 
 
 '^Thompson Cora, on Negligence, 2d ed., sec. 442. On the general subject of 
 the liabilities and relations between employer and employe, see the following 
 authorities : 
 
 4 Thompson Com. on Negligence, 2d ed., sec. 4608, et seq., sec. 4644 et seq.; 
 Shearman & Redf. on Negligence, Sth Ed., 177, et seq.; Wharton on Negligence, 
 2d Ed., 199, et seq.; 2 Cooley on Torts, 3d ed., 1040; Mather v. Rillston, 156 U. S. 
 391, IS S. Ct. 464; Coombs v. New Bedford, 102 Mass. S96; Taylor v. Carew, 
 140 Mass. 150, 3 N. E. 21 ; Moynihan v. Hills, 146 Mass. 586, 16 N. E. 574 ; Com. 
 V. Teevens, 143 Mass. 210, 9 N. E. 524; Foley v. Pettee, 149 Mass. 294, 29 N. E. 
 304. 
 
 '^Mullally V. Greenwood, 127 Mo. 138, 146, 29 S. W. looi ; Walker v. Grout 
 Auto Co., 124 Mo. 628, 102 S. W. 25. 
 
 '3i24 Mo. App. 628, 102 S. W. 25. 
 
 7*196 111. 221, 22s, 63 N. E. 683. 
 
 607 
 
§ 932 AGENCY 
 
 undertake to render services which should satisfy a court or jury, 
 but undertook to satisfy the taste, fancy, interest and judgment 
 of appellee. It was the appellee who was to be satisfied, and if 
 dissatisfied he had the right to discharge the appellant at any 
 time for any reason of which he was the sole judge." 
 
 XI. CsiMiNAL Liability. 
 
 § 932. In general. 
 
 933. Master as accessory before the fact. 
 
 934. Criminal responsibility for acts mala prohibita. 
 
 935. Criminal responsibility of chauffeur — Plea of obedience to orders. 
 
 936. Assault and battery committed by servant in the exercise of a general 
 discretionary authority. 
 
 § 932. In general. — It elsewhere appears, that in case of misde- 
 meanor all parties concerned are principals.''^ 
 
 There remains the criminal responsibility of the master for the 
 criminal acts of his servant. The following statement of the doctrine 
 is found in Smith's Master and Servant.''^ 
 
 "A master is not, generally speaking, criminally responsible for 
 the acts of his servants, unless he expressly commands or person- 
 ally co-operates in them. In criminal cases they must each an- 
 swer for their own acts and stand or fall by their own behavior. 
 And where one employs another to do a-thing, and there are sev- 
 eral ways of doing it, one criminal and another innocent, and he 
 does it in a criminal manner, the employer is not responsible. 
 
 "But where one man expressly orders another to do an illegal 
 act, it is clear that the employer at least is accountable for that 
 act. Whether or not the person employed is also criminally re- 
 sponsible must depend upon circumstances. 
 
 "If, though the actual doer of the deed be a servant, the master 
 stands by and sees and assents to the committal of the offense by 
 the servant or chooses to refrain from exercising the authority 
 which he might have exercised to prevent the offense being com- 
 mitted, the master would be criminally liable."'' 
 
 TsSee §§ isio. 
 
 TSSth ed., 266. 
 
 77Com. V. Sherman, 191 Mass. 439, 440, 78 N. E. 98. See also Wharton's 
 Crim. Law, loth ed., sees. 246, 247, 341 ; Wharton on Homicide, 3d ed., sees. 
 449, 466, 480; Wood's Law of Master and Servant, 2d ed., 320. 
 
 608 
 
CRIMINAI, UABIUTY § 933 
 
 And this is true even if the master has previously instructed the 
 servant not to commit the offence.'* 
 
 But the circumstances must be strong for the courts to attach to the 
 employer responsibility for the felonious act of the employe/' 
 
 It is enough, however, to charge the master criminally that he was 
 riding in the car while his chauffeur is breaking the law with his 
 knowledge and without objection as in case of overspeeding'" or of 
 failing to carry lamps as required though the owner is a corporation. 
 
 See Provincial Motor Cab Co. v. Dunning, 2 h. R. K. B. 599, in 
 which case the court remarks : 
 
 (2) Because the defendant is a corporation is no reason why 
 under circumstances like these they should not be convicted of 
 aiding and abetting. "If a corporation have a large number of 
 cars and act, as they must act, by agents, and those agents send out 
 the cars in a way which does not comply with the regulations, in 
 my judgment the corporation is responsible for the penalties im- 
 posed thereby"; 
 
 (3) "The doctrine that there must be a criminal intent does 
 not apply to criminal offenses of this particular class, which arise 
 only from the breach of a statutory regulation" ; 
 
 (4) "The car was sent out by persons for whom the company 
 was responsible, in a condition which did not conform with the 
 statutory regulation; and that being so, there was evidence of the 
 company aiding and abetting the offense." 
 
 § 933. Master as accessory before the fact. — This point is gen- 
 erally considered in the chapter on Criminal Negligence.'^ 
 
 An accessory before the fact is one who procures, counsels, com- 
 mands or abets another to commit a crime. The meaning of the word 
 "command" is "where a person having control over another, as a 
 master over a servant, orders a thing to be done. To constitute the 
 master accessory it is necessary that he should have been absent at the 
 time when the felony was committed, if he was either actually or con- 
 structively present" he is a principal. "The accessory is liable for 
 all that ensues upon the execution of the unlawful act commanded."'^ 
 
 ifSBarden v. Felch, 109 Mass. 154, 157. 
 
 '"People V. Scanlon, 132 N. Y. App. Div. 528, 117 N. Y. S. 57. 
 soCotn. V. Sherman, 191 Mass. 439, 440, 78 N. E. 98; People v. Colon, 148 N. 
 Y. S. 321, 85 Misc. 229. 
 *iSee §§ 1511, et seq.. Criminal negligence. 
 s^Wharton on Homicide, 3d ed., sec. 58. 
 
 609 
 39 
 
§ 934 AGENCY 
 
 § 934. Criminal responsibility for acts mala prohibita. — In 
 
 Com. V. Stevens,*' the rule is thus stated by Mr. Justice Knowlton 
 for the court : 
 
 "The criminal liability of the master for the act of his servant 
 does not extend so far as his civil liability, inasmuch as he can- 
 not be held criminally for what the servant does contrary to his 
 orders, and without any authority express or implied, merely be- 
 cause he is in the course of his business and within the scope of 
 the servant's employment; but he would be liable civilly for a 
 tort of this kind. But if the act is the master's because done by 
 the servant within his authority, and especially if it is an act which 
 is made punishable even when done in ignorance of its punishable 
 quality, the statute applies to the master as well as to the servant." 
 
 In Com. v. Sherman,'* the defendant was charged with overspeeding 
 his automobile. He was the owner and was seated in the tonneau, 
 the car being driven by another person. The court, by Mr. Justice 
 L,oring, say: 
 
 "If the defendant is guilty here he is guilty not as owner but 
 because * * * ^g participated in the vehicle being run at an 
 illegal speed. * * * f jjg question, therefore, comes down to 
 this : Did the Commonwealth make out a prima facie case of par- 
 ticipation by the defendant in the vehicle in question being run at 
 an illegal speed, by showing that the vehicle was being run by the 
 operator at an illegal speed while the owner was in the tonneau 
 (being either the general owner of the vehicle or having such a 
 special property in it as gave him the right to control it) ? In our 
 opinion those facts warranted the inference that the owner knew 
 and allowed his vehicle to be illegally run. The case so made out 
 is a prima facie case only. It may be contradicted or explained. 
 But uncontradicted and unexplained it does, in our opinion war- 
 rant that inference, and so makes out a prima facie case."^^ 
 
 § 935- Criminal responsibility of chauffeur — plea of obedience 
 to orders. — ^Although referred to in another connection,*' it is appropri- 
 ate to mention here the fact that it is no excuse on the part of the 
 
 83iss Mass. 291, 29s, 29 N. E. S08. 
 8*191 Mass. 439, 78 N. E. 98. 
 
 smother portions of the opinion are quoted in the chapter on Criminal Negli- 
 gence, § 1510. 
 8»See § 254- 
 
 610 
 
CRIMINAL LIABILITY § 936 
 
 chaufifeur, under an indictment for manslaughter, that his negligence 
 arose from his obedience to the instruction of his superior. In People 
 V. Melius,'^ Mr. Justice Noah Davis charged the jury that "where an 
 employe (in this case of a railroad corporation) by culpable negligence 
 has caused death, it is no excuse that his negligence arose from his 
 obedience to the instructions of his official superior." * * * "Such 
 instructions cannot relieve him from the consequences of his non- 
 performance of his legal duty. The law requires the exercise of that 
 degree of care and viligance which the character of an impending 
 danger demands."*' 
 
 § 936. Assault and battery committed by servant in the exer- 
 cise of a general discretionary authority. — ^The following case is 
 quoted to show how far the courts go in holding the principal responsi- 
 ble for unwarranted acts of the employe, if such acts be done in the 
 discretionary authority vested in him by the scope of his employment. 
 Ramsden v. Boston & A. Railroad Co.,'^ was an action of "tort for an 
 assault and battery," growing out of physical force exercised by the 
 conductor of defendant's train to collect the railroad fare from plain- 
 tiff, a woman. Defendant contended that the conductor's acts com- 
 plained of, were not done "as the defendant's servant or agent) or 
 under such instructions that they are in any manner responsible for 
 his acts or omissions." The court, by Mr. Justice Gray, say (p. 120) : 
 
 "A railroad corporation is liable, to the same extent as an in- 
 dividual would be, for an injury done by its servant in the course 
 of his emplo)rment." If the act of the servant is within the gen- 
 eral scope of his employment, the master is equally liable, whether 
 the act is wilful or merely negligent; Howe v. Newmarch, 12 
 Allen (94 Mass.) 49 ; or even if it is contrary to an express order 
 of the masten- Philadelphia & R. R. v. Derby, 14 How. 468. 
 
 The conductor of a railroad train, from the necessity of the 
 case, represents the corporation in the control of the engine and 
 cars, the regulation of the conduct of the passengers," etc. "If, 
 in the exercise of his general discretionary authority,^" he wrong- 
 fully" does an act "or uses excessive and unjustifiable force * * * 
 in either case the corporation is liable." * * * "The use of un- 
 warranted violence in attempting to collect fare of the plaintiff 
 
 8^1 N. Y. Crim. Reps. 39. 
 
 88But see Reg. v. Elliott, 16 Cox. C. C. 714 (Eng.). 
 
 8»i04 Mass. 117. 
 
 '"Italics by the author of this book. 
 
 611 
 
§ 93^ AGENCY 
 
 was as much within the scope of the conductor's employment as 
 the exercise or threat of unjustifiable force in ejecting a passenger 
 from the cars. * * * Either is an unlawful assault; but if com- 
 mitted in the exercise of the general power vested by the corpora- 
 tion in the conductor, the corporation, as well as the conductor, 
 is liable to the party injured. In Monumental Nat'l Bank v. Globe 
 Works, loi Mass. 59, Mr. Justice Hoar said, 'No corporation is 
 empowered by its charter to commit an assault and battery ; yet it 
 has frequently been held accountable in this Commonwealth for 
 one committed by its servants.' "*^ 
 
 »iSee also Brown v. Boston Ice Co., 178 Mass. 108, S9 N. E. 644; Collins v. 
 Wise, 190 Mass. 206. 
 
 612 
 
CHAPTER XXXII. 
 
 LIENS. 
 
 § 937. Scope of chapter. 
 
 938. Recording of mortgage. 
 
 939. Priorities. 
 
 940. Conversion. 
 
 941. Right of action for conversion not shut off by foreclosure of mortgage. 
 g-l-iA. Liens by statute in damage cases. 
 
 § 937- Scope of chapter. — The purposes of this work do not 
 permit of a treatment of the law of chattel mortgages and other liens 
 on personal property but we have cited in the following sections a 
 few recent cases bearing on liens on automobiles. Such liens are 
 seldom of any Teal value as in the first place a fraudulent debtor can 
 so easily secret or sell the vehicle and in the second place it is so 
 expensive to have a sheriff take and store an automobile pending liti- 
 gation and the prices obtained at sheriff's sale are usually so low that 
 the net result to the creditor is apt to be very small. 
 
 It is for these reasons that dealers in motor vehicles commonly do 
 business only on a strictly cash basis. 
 
 § 938. Recording of mortgage. — ^A chattel mortgage on an auto- 
 mobile should be recorded where the mortgagor lives under the statute, 
 notwithstanding the mortgagor in the contract of purchase recited that 
 he lived in another county.^ 
 
 § 939. Priorities. — ^A subsequent mortgage on an automobile duly 
 recorded will take precedence of a prior conditional bill of sale not 
 recorded according to law.^ 
 
 A chattel mortgage on an automobile is void when not recorded 
 and when possession is not taken under it as against a subsequent 
 mortgagee in good faith, although the first mortgagee subsequently 
 records his mortgage before the recording of the second mortgage and 
 takes possession.^ 
 
 ^Burbank v. Robek, 157 Ky. 524, 163 S. W. 457. 
 
 ^Worley v. Metropolitan Motor Car Co., 72 Wash. 243, 130 Pac. 107. 
 
 *Dixon v. Tyree, 92 Kan. 127, 139 Pac. 1026. 
 
 613 
 
§ 940 UENS 
 
 Where automobiles are pledged to a bank for a loan to pay the 
 purchase price and the title is in the seller as security for the price 
 the bank on paying the seller is subrogated to his title as against the 
 buyer's trustee in bankruptcy.* 
 
 § 940. Conversion. — Where the plaintiff has made a bill of sale 
 of an automobile to the defendant for security for a loan there is no 
 conversion shown although the defendant sold it to a third party who 
 returned it and although the defendant has given a bill of sale of it 
 to his chauffeur to avoid liability for accidents where tfie plaintiff has 
 never demanded the machine and the defendant has been ready to 
 return it on payment of the amount due him.° 
 
 § 941. Right of action for conversion not shut off by fore- 
 closure of mortgage. — Where the owner of a car has a right of action 
 for conversion of it after it is wrecked the fact that a mortgagee fore- 
 closes his chattel mortgage on the wreck does not shut off his right of 
 action.* 
 
 § 941a. Liens by statute in damage cases. — In a few states motor 
 vehicle legislation exists which to the extent of the value of the ma- 
 chine resolves in favor of the plaintiff, many questions of responsibil- 
 ity on the part of the defendant. Such statutes give a lien on the 
 machine itself to the injured party who sues to recover damages for 
 his injury. The following is the Tennessee section on the topic ;^ 
 
 "Sec. 5. * * * Whenever any suit for damages is brought 
 * * * for injuries to person 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 satisfaction 
 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, employe, servant or any other person 
 using the same by loan, hire or otherwise." 
 
 In Kentucky the right to the lien arose whenever the injury or 
 damage grew out of a violation of the Act, and was in addition to the 
 
 <In re Automobile Service Co., 176 Fed. 792. 
 "Parker v. Sloan, 42 Utah 526, 131 Pac. 1171. 
 •Geren v. HoUenbeck, 66 Oregon 104, 132 Pac. 1164. 
 'Tenn. St., 1905, c. 173 s. S- 
 
 614 
 
IvlENS § 941A 
 
 penalty for such violation. It attached "upon the filing of the suit 
 for damages" in the civil court." In Virginia, the vehicle "may be 
 seized and impounded anywhere in the Commonwealth upon the order 
 of a justice * * * and may by the order of such justice, be sold 
 to pay such fines or damages."' These statutes are referred to in 
 Mattel V. Gillies,^" as in line with the view that registration and num- 
 bering are designed to fasten the responsibility upon the owner in all 
 cases where the machine is used with his sanction or permission. 
 
 sKy. St., 1904, now repealed. 
 9Va. St. Code 1904, § sSSPb. 
 i»i(i Ont. L. Reps. 558 (Can.). 
 
 615 
 
CHAPTER XXXIII. 
 
 NEGLIGENCE GENERALLY, AND ITS CLASSIFICATION. 
 
 § 942. Scope of chapter. 
 
 943. Negligence defined. 
 
 944. Not insurers. 
 
 945. Duty to keep car under control. 
 
 946. Ingredients of negligence. 
 
 947. Negligence described. 
 
 948. The motorist's true point of view. 
 
 949. The basis for the consideration. 
 
 950. "Perfect vigilance." 
 
 951. Degrees of negligence. 
 
 952. The motorist and "ordinar/' negligence. 
 
 953. Aspects of negligence. 
 
 954. Criminal negligence. 
 
 955. Negligence per se. 
 
 956. Regarding acts or omissions, mala in se. 
 
 957. Summary. 
 
 958. Division of subject. 
 
 § 942. Scope of chapter. — The subject of negligence is treated in 
 the following pages upon principles of general law, without reference 
 to particular statutory provisions. Hitherto attention has been di- 
 rected to the duty required of motorists, we now consider what amounts 
 to a failure of that duty, and the consequences following upon such 
 failure. No conception of negligence, in a legal sense, is possible, that 
 does not involve as its two essential elements, first a duty, and, second 
 a breach of that duty. If either ingredient is absent there is no 
 negligence in law.^ The duty imposed is that of care for the persons 
 and property of our fellowbeings.^ 
 
 § 943. Negligence defined. — Negligence is frequently referred 
 to by judges and text writers as the "absence of care according to the 
 
 ^Wharton on Negligence, 2d ed., sees. 82, 83. 
 ^See § 895. 
 
 616 
 
NEGLIGENCE § 943 
 
 circumstances."* Mr. Justice Field, speaking for the United States 
 Supreme Court, in "The Nitroglycerine Case,"* says: 
 
 " 'Negligence' has been defined to be 'the omission to do some- 
 thing which a reasonable man, guided by those considerations 
 which ordinarily regulate the conduct of human affairs, would do, 
 or doing something which a prudent and reasonable man would 
 not do. It must be determined in all cases by reference to the 
 situation and knowledge of the parties and all the attendant cir- 
 cumstances. What would be extreme care under one condition of 
 knowledge, and one state of circumstances, would be gross negli- 
 gence with different knowledge and in changed circumstances. 
 The law is reasonable in its judgment in these respects. It does 
 not charge culpable negligence upon any one who takes the usual 
 precautions against accident, which careful and prudent men are 
 accustomed to take under similar circumstances."' 
 
 "Negligence," says Mr. Justice Brown in Tudor v. Bowen,* "is 
 essentially relative and comparative; the legal duty owed to others 
 being the accepted standard, and being measured by the exigencies of 
 the occasion." 
 
 In Milwaukee etc. R. Co. v. Arms,^ the court, by Mr. Justice Davis, 
 in a case where gross negligence was alleged, say : 
 
 " 'Gross negligence' is a relative term. It is doubtless to be 
 understood as meaning a greater want of care than is implied by 
 the term 'ordinary negligence,' but after all, it means the absence 
 of the care that was necessary under the circumstances." 
 
 The Massachusetts Supreme Court in Fletcher v. Boston & M. R.,' 
 say: 
 
 "Care and diligence should vary according to the exigencies 
 which require vigilance and attention, conforming in amount and 
 
 'Beven on Negligence, 44. 
 *iS Wall. 524, 536- 
 
 ^Citing Blyth v. Birmingham, N. W. 11 Exchequer, 784, and Shearman & 
 Redf., Sec. 6. 
 «iS2 N. C. 441, 67 S. E. 1015. 
 '91 U. S. 4S9, 49S. 
 883 Mass. 15. 
 
 617 
 
§ 944 negi<igencs 
 
 degree to the particular circumstances under which they are to 
 be exerted."' 
 
 Messrs. Shearman & Redfield,"observe : 
 
 "Many definitions of negligence have been attempted, none of 
 which appears to us to be quite satisfactory, as no one of them 
 has proved to be satisfactory to the framer of any other." 
 
 A similar difficulty is encountered when it comes to classifying 
 and defining the so-called "degrees of negligence," regarding which 
 there is much controversy.^^ 
 
 § 944. Not insurers.^^ — Drivers upon highways are not insurers 
 against accidents.^* 
 
 Hence an instruction to the jury that it is the duty of the driver 
 of an automobile to avoid causing injury is prejudicial as imposing too 
 high a duty on him. This would make him an insurer. It is his 
 duty to use ordinary care to avoid causing injury.^* 
 
 Also an instruction is correct that "It is the duty of the defendant 
 in running his automobile through the streets of a populous city to so 
 regulate the speed of his automobile as not to injure anyone and 
 failure to use such care is negligence." This does not suggest that 
 defendant was an insurer of the plantifif.^° 
 
 § 945. Duty to keep car under control. — ^A driver is bound to 
 keep his machine under such control as to check the speed or stop it 
 absolutely if necessary to avoid injury to others where danger could 
 reasonably be expected or was apparent.^" 
 
 It is sufficient that a driver have his car under reasonable not under 
 absolute control.^' 
 
 »See also Cunningham v. Hall, 86 Mass. 268, 276; Erd v. St. Paul (City), 22 
 Minn. 446. 
 
 I'On the Law of Negligence, sth ed., sec. i. 
 
 i^Shearman & Redfield on Negligence, sth ed., chap. Ill; Wharton, Negli- 
 gence, 2d ed., ch^ps. i and II; Beven on Negligence (Eng.), 6, also chap. II. 
 
 i^Doctrine that the driver is an insurer considered, see ante, § 232. 
 
 I'Barger v. Bissell, (Mich.) ; 154 N. W. 107, 1916. 
 
 i*Runip V. Woods, 5° Ind. App. 347; 98 N. E. 369. 
 
 i^Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450. 
 
 "Madding v. State, 118 Ark. 506, 177 S. W. 410. 
 
 ^'Baldwin v. Maggard, 162 Ky. 424, 172 S. W. 674. 
 
 618 
 
NEGI,IGENCE § 946 
 
 When an automobile hits a carriage it is proper to charge the jury 
 that the automobile entails on the person who runs it the duty of keep- 
 ing it always under control and not to run it at a rate of speed which 
 would be dangerous. The charge is sufficiently specific when com- 
 bined with a statement that the plaintilif could only recover if she con- 
 vinced the jury that she was free from negligence and that the injury 
 resulted from the negligence of the defendant.^* 
 
 § 946. Ingredients of negligence. — For the present purpose, it 
 can serve no end to devote time to a presentation of the subject from 
 the particular standpoint of any of the writers, nor to dwell upon 
 subtleties of distinction. There are certain postulates entering into 
 the idea of negligence, having almost the force of axioms, with which 
 every one starts, and far away from which the nature of our subject 
 does not necessarily lead. These may be described as its ingredients. 
 
 § 947. Negligence described. — Negligence in its real meaning is 
 nothing more nor less than a failure of duty. It is in its nature a 
 negative expression of the idea of the fulfillment of duty. It is the 
 antithesis of diligence. Thus, if one is bound to the exercise of dili- 
 gence as a positive duty which he owes to others, and he omits or fails 
 therein, he negatives that duty and that negation is called negligence. 
 Diligence imports the presence of care. Negligence implies its ab- 
 sence. Both apply according to the circumstances of each particular 
 case. So, if the highest diligence is the duty, the least failure therein 
 will be negligence, and the negligence will increase in quality as the 
 lapse from diligence grows great. Again, if one is required to exert 
 only such diligence as the ordinary prudent person would ordinarily 
 exercise in and about his ordinary relations with his fellow-beings, 
 then small failures will not be counted against him. Diligence of 
 this kind is denominated "ordinary" diligence, and its opposite is 
 ordinary negligence. These variations are called "degrees" of dili- 
 gence and negligence. They are more often referred to in their rela- 
 tion to the latter than to the former. Thus has grown the confusion 
 often met, coming not only from the inherent difficulty of the subject 
 itself, but from a failure to discriminate between the positive and the 
 negative aspects of the subject.^" 
 
 i^Ketchura v. Fillingham, 162 Mich. 704, 127 N. W. 702. 
 i^Beven on Negligence, 17, 19. 
 
 See remarks of Mr. Justice Curtis in Steamboat New World v. King, 16 
 How. (U. S. S. C.) 469. 
 
 619 
 
§ 948 NEGIvlGENCE 
 
 § 948. The motorist's true point of view. — It is peculiarly apt in 
 the case of the motor vehicle operator, that diligence rather than 
 negligence, should be the view point. As has been seen elsewhere,^" 
 because of the character of his vehicle and the special statutes under 
 which he works, there is for the motorist only one standard of op- 
 eration, and that is the highest degree of vigilance of which the nature 
 of the case admits. The slightest failure means negligence rapidly 
 increasing in quality, so that what would be only ordinary negligence 
 in some other paths of life, in that of the motor vehicle operator might 
 amount to gross negligence, construed as a wanton disregard of the 
 rights of others, or even as recklessness menacing "the lives or safety 
 of the public."" 
 
 § 949. The basis for the consideration. — In Shearman & Redf .^^ 
 it is said : 
 
 "In determining what is the duty, the failure in which consti- 
 tutes negligence, regard is to be had to the growth of science and 
 the improvement in the arts, which take place from generation to 
 generation ; and many acts or omissions are now evidence of gross 
 carelessness, which a few years ago would not have been culpable 
 at all, as many acts are now consistent with great care and skill, 
 which in a few years will be considered the height of imprudence." 
 
 § 950. "Perfect vigilance," says Dr. Wharton,^' "is not required, 
 for perfect vigilence would result in perfect inaction." "But," he 
 continues, "prudence to be proportioned to the risk" is the standard 
 set by the law. 
 
 § 951. Degrees of negligence. — ^Avoiding the controversy con- 
 cerning the lines of distinction between the grades of negligence, for 
 present purposes, negligence and diligence may be classified in three 
 degrees: First, Slight negligence, which implies a small lapse from 
 the appropriate degree of care ; Second, Ordinary negligence, which is 
 the absence of such diligence as a prudent, careful man would com- 
 monly exercise in his ordinary affairs; Third, Gross negligence {lata 
 
 20See Chap. XII, Operation; Chap. XVIII, L,aw of Road; Chap. XIX, Speed, 
 etc.; Chap. XLVII, Criminal Negligence. 
 
 2iMass. Motor Vehicle Act, 1909, Ch. 534, Sec. 22; Fletcher v. Dixon, 107 
 Md. 420, 68 Atl. 875. 
 
 220n Negligence, Sth ed., sec. 12. 
 
 230n Negligence, 2d ed., sec. 798. 
 
 620 
 
N^GtlGENCE § 952 
 
 culpa), which imports almost an absence of diligence, sometimes ex- 
 tend to include wilful, wanton negligence and recklessness. 
 
 This classification, while not freeing the subject from danger of 
 confusion, will, it is hoped, be found generally convenient in consid- 
 ering the statutes and decisions to which there will be occasion here- 
 after to refer. 
 
 § 952. The motorist and "ordinary" negligence. — ^As has been 
 frequently pointed out in these pages, it is with the first of the above 
 mentioaed degrees, that the motorist is most concerned, and the oc- 
 currence of the third from which hfe has the most to dread. The op- 
 erator who grasps at ordinary diligence and holds to the easier doc- 
 trine of ordinary neghgence, as that term is commonly used, is apt 
 to find himself as one who clings to a rope of sand, which parts at 
 one extreme and falls all the way to the other. If, however, "ordi- 
 nary diligence" be construed as defined in Johnson v. Hudson River 
 R.,^* there can be no objection to its application to motor vehicle op- 
 eration. This was a case where cars of the defendant, while being 
 drawn by horses through a New York city street on a dark night, 
 ran over and killed a man. There were no lights on the cars, no bell 
 or other means of giving warning. Mr. Justice Slosson says, on the 
 point now under consideration :^^ 
 
 " 'The degre'e of vigilance which the law will exact, as implied 
 by the requirement of ordinary care, must vary with the prob- 
 able consequences of negligence, and also with the command of 
 means to avoid injuring others, possessed by the person on whom 
 the obligation is imposed. Under some circumstances a very high 
 degree of vigilance is demanded by the degree of ordinary care, 
 where the consequence of negligence will probably be serious in- 
 jury to others, and where the means of avoiding the infliction of 
 injury upon others are completely within the party's power. 
 
 "Ordinary care requires almost the utmost degree of human 
 vigilance and foresight."''^ * * * 
 
 "The good sense and soundness of this view of the question 
 cannot, I think, be doubted. If the vigilance and care are to be 
 proportioned to the danger to be avoided, it becomes immaterial 
 by what name the obligation is designated or defined. * * * I 
 
 2*6 Duer, 642 (affirmed 20 N. Y. 65). 
 
 26Quoting the case of Kelsey v. Barney, et al., 2 Kern. 425, N. Y. 
 
 ^'Italics by the author of this book. 
 
 621 
 
§ 953 NEGLIGENCE 
 
 think the rule laid down by the judge at the trial is the true one, 
 to wit : a degree of care proportioned to the danger of others — 
 whether this be called 'ordinary' care, or 'the utmost' or 'highest' 
 care, or 'diligence,' is immaterial, a mere question of words; so 
 long as the standard is right, its name is a matter of no conse- 
 quence. A great principle may easily be lost sight of in this ad- 
 herence to definitions. It seems to me that no other rule can be 
 safely adopted. It is one which is not dependent on contract or 
 the consideration of a compensation for service, but is founded on 
 the general principle of humanity towards others, and the obliga- 
 tion so to use one's own property and exercise ones own rights 
 as not to injure others."^' 
 
 The Massachusetts Supreme Court, in Sullivan v. Scripture,"' by 
 Mr. Justice Morton thus define ordinary care : 
 
 "The words 'ordinary care' have a well-known legal meaning, 
 namely, such care as men of common prudence usually exercise 
 in the management of their own concerns. Thus defined or ex- 
 plained — ^as the words always are, if any explanation is asked — 
 they mean reasonable care, or due care. And what is reasonable 
 or due care depends, in every case, on the subject matter to which 
 the care is to be applied, and the circumstances attending that sub- 
 ject matter at the time when care is required." 
 
 The same court in a motor vehicle case, decided in 1905, discussed 
 the distinction between "ordinary care," "gross negligence," and such 
 recklessness of conduct as amounts to wanton, wilful disregard of the 
 public safety."' 
 
 § 953. Aspects of negligence. — The general subject presents itself 
 in two aspects, namely: Pirst, Negligences that are of a criminal 
 character ;. 5'^coMd, Simple negligences, that is. to say, those that are 
 actionable only. Both are positive breaches of duty but are called 
 negligences, because there is an "absence of distinct intention to pro- 
 duce the precise damage, if any, which actually follows." Beven on 
 Negligence, 6. One is a wrong to the state because it affects or men- 
 
 27See also to same effect, Steamboat New World v. King, 16 How. U. S. S. C. 
 474; Feeney v. Wabash R., 123 Mo. App. 427, 99 S. W. 477; J. T. & K. W. 
 R. V. P. L. T. & M. Co., 27 Fla. i, 92, 9 So. 661. 
 
 iiSSs Mass. 564. 
 
 29Banks v. Braman, 188 Mass. 367, 368, 74 N. E. 594- See also sec. 1^17 et seq, 
 post. 
 
 622 
 
NEGLIGENCB § 954 
 
 aces the safety or the convenience of society at large, and according to 
 its nature may be malum prohibitum or malum in j^/" the other prin- 
 cipally affects the rights of individuals, and finds reparation in an ac- 
 tion in tort at the instance of the injured party. In so far as criminal 
 negligence is actionable in tort at the instance of the individual in- 
 jured, it partakes also of the nature of simple negligence, hence it 
 follows that, at the last analysis, there is no difference in essence 
 between them; it is rather a matter of remedies than of nature, and 
 the character is that of a degree in negligence.'^ 
 
 § 954. Criminal negligence is sometimes referred to as negligence 
 per se. Such negligence has been defined as "the omission to do what 
 the law requires or the failure to do anything in the manner required 
 by law."'= 
 
 But this definition does not absolve the matter from difficulty, nor 
 does a literal translation of the words "per se" give much help, be- 
 cause the omission or commission constituting any negligence, is by 
 itself, a breach of the duty which every man owes to his fellow- 
 citizen and to the state.'* Not all breaches of duty being immediately 
 followed by perceptible evil consequences to the commonwealth or to 
 the individual, some may, except by express provision of law, be neither 
 indictable nor actionable {damnum absque injuria). 
 
 § 955. Negligence per se. — As a somewhat arbitrary definition 
 therefore, a negligence per se, may be described as an act or omission 
 which the law has commanded or prohibited, the occurrence of which 
 is of itself and independent of its result, as matter of law, declared a 
 failure of duty, rendering the culprit liable to public punishment, 
 and this irrespective of all questions of the exercise of prudence, dili- 
 gence, care or skill in case a fellow-being is injured.'* 
 
 It was in this sense that Chief Justice Comegys appears to have 
 
 '"See Chap. XXII. 
 '^See Beven on Negligence, 7. 
 
 '^St. Louis, etc., R. v. Keokuk, etc., 31 Fed. Repr. 7s6, 1887. 
 "i Shearman & Redf. on Negligence, Sth ed., sec. 4. 
 
 '^Thompson, Com. on Negligence, 2d ed., sees. 10, 204; Cecchi v. Lindsay, 
 I Boyce (Del.) 185, 75 Atl. 376. 
 
 623 
 
§ 95^ NEGLIGENCE 
 
 used the following language concerning acts mala prohibita, in charg- 
 ing the jury in Robinson v. Simpson.^' 
 
 "With respect to the matter of negligence, I have to say to you 
 that certain things are or amount to negligence in law whether 
 any active or positive negligence be proved or not. The violation 
 of an ordinance of this city is of itself (per se, as we say) an act 
 of negligence which in a legal controversy like this, only requires 
 to be proved to render a wrong-doer liable for any injury result- 
 ing from such misconduct. Driving fast or racing upon a street 
 of the city is an act of negligence by reason of an ordinance 
 * * * as indeed it would be without any such ordinance. The 
 streets of a city are not to be used by drivers so as to endanger 
 the safety of persons or property."^' 
 
 Dr. Wharton,^' says that "driving at the rate of fifteen miles an 
 hour, or a mile in four minutes on a thronged highway, is wiljul rash- 
 ness per se" which takes the case out of malum prohibitum and places 
 it in the category of malum in se. 
 
 Violation of an ordinance regulating speed is negligence per se and 
 is conclusive evidence and not subject to rebuttal. The fact that there 
 is negligence per se does not show however that such negligence is 
 actionable. That question depends on the further question whether 
 such negligence was the direct and proximate cause of the injury.^* 
 
 § 956. Regarding acts or omissions, mala in se, such as gross 
 failure to respect the right of others on the highway, they are wrong 
 in their essence and are punishable as being crimes of a positive na- 
 ture. In other words, when the neglect assumes a criminal character 
 it commences to lose its negative aspect, and as it grows more and 
 more gross, the negative mien fades, approaching the line where it 
 disappears altogether, re-appearing as a positive, substantive crime.^° 
 
 358 Houst. 398 (Del.), 32 Atl. 287. 
 
 ssSee also S Words & Phrases Jud. Def. 4764. 
 
 370n Homicide, 3d ed., sec. 465. 
 
 BsWhaley v. Ostendorff, 90 S. C. 281 ; 73 S. E. 186. As to effect of violation 
 of law, see further, post, § 1075, et seq. 
 
 soAiken v. Holyoke St. Ry., 184 Mass. 269, 271; 68 N. E. 238; Banks v. 
 Braman, 188 Mass. 367, 74 N. E. 594- 
 
 624 
 
NEGtlGENCfi § 956 
 
 Dr. Wharton,*" writing of negligences that are criminal irrespective 
 of statute {mala in se), thus states it: 
 
 "When the imperfection in the discharge of duty is so great as 
 to make it improbable that it was the result of mere inadvertance, 
 then, in proportion to such improbability, does the probability of 
 negligent injury diminish, and that of malicious injury increase." 
 
 Such offences continue to be called "criminal negligences," be- 
 cause they lack the element of actual malice and distinct intent to 
 bring about the result which follows from the criminal act or omis- 
 sion. 
 
 In Com. V. Hawkins,*^ Mr. Justice Knowlton says: 
 
 "So in cases of homicide, the rule is well established, that one 
 who wantonly, or in a reckless or grossly negligent manner, does 
 that which results in the death of a human being, is guilty of 
 manslaughter, although he did not contemplate such a result. 
 His gross negligence in exposing another to a personal injury 
 by intentionally doing the act, makes his intention criminal."*^ 
 
 In People v. Foren,*' it is said : 
 
 "The common law measures an act which is malum in se sub- 
 stantially by the result produced, though not contemplated, hold- 
 ing the doer of the act guilty of the thing done in the same man- 
 ner as if it were specially intended, though not always guilty of 
 the crime committed in the same degree." 
 
 "Carelessness is criminal" says Bishop,** "and, within limits supplies 
 the place of direct criminal intent." 
 
 The case of Banks v. Braman,*" presented the foUowng facts : An 
 automobile driven by the defendant, after dark, on a city street, struck 
 and injured the plaintiff. The action was in tort, the allegation being 
 that the machine was "negligently run at an excessive rate of speed, 
 and negligently managed." Chief Justice Knowlton, in reviewing the 
 
 *"0n Negligence, 2d ed., sec. 22. 
 
 ^132 N. E. 862, IS7 Mass. 551, 553 (cited more at length, post). 
 *2See I Wharton Criminal' Law, loth ed., sec. 120; Banks v. Braman, 188 
 Mass. 367, 74 N. E. 594, infra. 
 *'2S Cal. 364. 
 **0n Criminal Law, 313. 
 *si88 Mass. 367, 74 N. E. 594. 
 
 625 
 40 
 
§ 9S6 negugence 
 
 charge of the trial judge, considering the distinction between "ordinary 
 care," and "gross negligence," says: 
 
 "The difference in culpability of the defendant which distin- 
 guishes .these different kinds of liability is something more than 
 a mere difference between the different kinds of inadvertance. 
 In one case there need be nothing more than a lack of ordinary 
 care, which causes an injury to another. In the other case there 
 is wilful, intentional conduct whose tendency to injure is known, 
 or ought to be known, accompanied by a wanton and reckless 
 disregard of the probable harmful consequences from which 
 others are likely to suffer, so that the whole conduct together, 
 is of the nature of a wilful, intentional wrong. The subject was 
 discussed at length in Aiken v. Holyoke Street Railway, 184 
 Mass. 269, 271, and a part of the language used in this opinion 
 is as follows: 'It is equally true that one who wilfully and 
 wantonly, in reckless disregard of the rights of others, by a posi- 
 tive act of careless omission exposes another to death or grave 
 bodily injury, is liable for the consequences, even if the other 
 was guilty of negligence or other fault in connection with the 
 causes which led to the injury. The difference in rules appli- 
 cable to the two classes of cases results from the difference in 
 the nature of the conduct of the wrong-doers in the two kinds of 
 cases. In the first case the wrong-doer is guilty of nothing 
 worse than carelessness. In the last he is guilty of a wilful, in- 
 tentional wrong. *^His conduct is criminal or quasi criminal. 
 If it results in the deaih of the injured person, he is guilty of 
 manslaughter. Commonwealth v. Pierce, 138 Mass. 165 ; Com- 
 monwealth V. Hartwell, 128 Mass. 415. 
 
 "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. It is no defense to a charge of manslaughter for the de- 
 fendant to show that, while grossly reckless, he did not actually 
 intend to cause the death of his victim. In these cases of per- 
 sonal injury there is a constructive intention as to the conse- 
 quences, which, entering into the wilful, intentional act, the law 
 imputes to the offender, and in this way a charge which would be 
 mere negligence, becomes, by reason of a reckless disregard of 
 probable consequences, a wilful wrong. That this constructive 
 intention to do an injury in such cases will be imputed in the 
 absence of an actual intent to harm a particular person, is rec- 
 ognized as an elementary principle in criminal law. It is rec- 
 ognized in civil actions for recklessly and wantonly injuring 
 others by carelessness.' In dealing with the same subject in 
 
 626 
 
NEGUGENCB § 957 
 
 Bjornquist v. Boston & Albany Railroad, 185 Mass. 130, 134, 
 the court said : 'The conduct which creates a liability to a tres- 
 passer in cases of this kind has been referred to in the books in 
 a variety of ways. Sometimes it has been called gross negli- 
 gence, and sometimes wilful negligence. Plainly it is something 
 more than is necessary to constitute the gross negligence re- 
 ferred to in our statutes and in decisions of this court. The 
 term 'wilful negligence' is not a strictly accurate description of 
 the wrong. But wanton and reckless negligence in this class of 
 cases includes something more than ordinary inadvertence. In 
 its essence it is like a wilful, intentional wrong. It is illustrated 
 by an act which otherwise might be unobjectionable, but which 
 is liable or likely to do great harm and which is done in a wanton 
 and reckless disregard of the probable injurious consequences.' " 
 
 § 957. Summary. — ^As summarizing the views presented, the fol- 
 lowing is offered as an aid in studying the different features of the 
 general subject of negligence : 
 
 ( 1 ) "Negligence" in its strictest sense, is the injurious omis- 
 sion of a duty, occurring through inadvertence ; 
 
 (2) "Heedlessness," which is generally synonymous with 
 "carelessness" differs from negligence in that the party who is 
 negligent omits an act and breaks a positive duty, while the 
 party who is heedless does an act and breaks a duty through in- 
 advertence. 
 
 Absence of thought as to consequences (which one's duty would 
 naturally suggest) is the characteristic and "main ingredient," in 
 each of the foregoing. 
 
 (3) "Rashness," which is a general synonym for reckless- 
 ness and temerity, imports that the offender thinks of the prob- 
 able mischief, but assumes that harm will not ensue in the given 
 instance. He intentionally runs a risk of which he is conscious 
 or ought to be conscious, but he thinks the evil will probably be 
 averted. 
 
 (4) "Wantonness" is rashness carried to extreme. The per- 
 son thinks of the probable injurious consequences, but is indif- 
 ferent to them, be they what they may." 
 
 I 
 
 ^'Italics by the author of this book. 
 
 ■•^See Austin's Lect. on Juris., 3d ed., i, p. 439; Wharton on Negligence, 2d 
 ed., sees. 2 to 12; also remarks of Mr. Justice Hoar in Howe v. Newmarch, 94 
 Mass. 49, 53. 
 
 627 
 
§ 958 NEGIvIGfiNCE 
 
 All are grouped as negligence in its broad sense, because there is 
 in each absence of any distinct intention to produce the precise damage 
 which actually follows as the result of the act or omission. 
 
 § 958. Division of subject. — For the purpose of proceeding 
 systematically, the general subject of negligence will be divided and 
 considered separately, in the two aspects already noted, namely: 
 
 (i) Simple or actionable, often called "civil" negligence, for which 
 satisfaction is sought through actions on the civil side of the tribunals, 
 in tort, for injuries sustained. 
 
 (2) Criminal, i. e. those forms of negligence of which the state takes 
 notice and punishes. 
 
 628 
 
CHAPTER XXXIV. 
 
 ACTIONABLE NEGLIGENCE. 
 
 I. In GenEkai,. 
 
 § 959. Scope. 
 
 960. Actionable negligence distinguished. 
 
 961. Civil as well as criminal liability. 
 
 962. Massachusetts statute on this subject. 
 
 963. Intent in negligence. 
 
 964. The relation of duty to negligence. 
 
 965. Damage must follow negligence. 
 
 966. Standards for measuring negligence. 
 
 967. The question of negligence is one of law as well as of fact. 
 
 968. Functions of the court and of the jury. 
 
 969. Duty of the court. 
 
 970. Dismissing the complaint 
 
 971. Burden of proving negligence. 
 
 972. Burden of proof in case of acts of servant. 
 
 973. Distinction between burden of proof and preponderance of evidence. 
 
 974. Burden of proof — "shifting." 
 
 § 959. Scope. — In previous chapters consideration has been given 
 to negligence generally, to criminal negligence, and to gross and wanton 
 negligence. There now remains for review, that branch of jurispru- 
 dence applying to careless conduct, sometimes called "simple," but 
 more frequently described as "actionable" negligence, considered in- 
 dependently of statutes controlling motor vehicle operation. Difficul- 
 ties of exact definition have developed in the features already dis- 
 cussed. If possible, the embarrassment increases when it comes to 
 a precise description of the varying phases of actionable negligence. 
 All attempts to bind them down by rigid restrictions and determinate 
 limitations, prove unsatisfactory. With the marvelous progress which, 
 in recent years, has been made in the application of natural agents and 
 forces to mechanical appliances, there has been a vast increase in the 
 number of casualties. It is said that more than half the labor now 
 cast upon the courts, is in the form of so-called "accident cases," in- 
 volving the law of actionable negligence. The contents of the books 
 
 629 
 
§ 9^0 ACTIONABLS NEGLIGBNCe 
 
 on the shelves in our law libraries are strong proof that the assertion is 
 no exaggeration. The scope of this book precludes the presentation in 
 this chapter, of anything more than a statement of such of the funda- 
 mental principles and general doctrines of actionable negligence as 
 apply to motor vehicles. Many features of the subject peculiarly 
 pertinent to the operation of such conveyances have been already dis- 
 cussed from the standpoint of diligence. The present undertaking is, 
 therefore, simplified, the reader being able to refer for precise appli- 
 cation of many of the rules, to appropriate sections in previous 
 chapters.^ 
 
 § 960. Actionable negligence distinguished. — In defining the 
 view point for present consideration, recourse should be had to the 
 description of negligence given in a preceding chapter,^ namely, that the 
 idea imports "absence of care according to the circumstances";' and 
 that, in its "actionable" form, it is carelessness or heedlessness, for the 
 punishment of which the state does not appear in a public prosecution, 
 but for which satisfaction is usually sought on the civil side of the tri- 
 bunal in an action of tort between the parties, for the injury sustained. 
 As a matter of fact, therefore, the distinction between criminal negli- 
 gence and actionable negligence is not so much one of nature, as it is 
 one of remedies. Dr. Thompson says, "actionable negligence is usually 
 the failure to exercise reasonable or ordinary care,"* which is synony- 
 mous with "due care," and that brings the inquiry back to Seven's 
 description of negligence, as the failure to exercise care according to the 
 circumstances." 
 
 An illustration of simple negligence occurs in a case where a per- 
 son having notice of a danger, allows the knowledge to escape his 
 mind, which forgetfulness results in injury. In Towle v. Morse,° Mr. 
 Justice Whitehouse, commenting upon the defendant's explanation 
 that plaintiff's approaching vehicle had passed from his mind, and re- 
 
 iSee Chapters XVIII, Law of the Road; XIX, Speed Limitations; XX, Reck- 
 less Operation, etc.; also Chapters XXIII and XXXI. 
 
 2Secs. 942, et seq. 
 
 =Beven on Negligence, 44. 
 
 *Cora. on Negligence, 2d ed., sec. 23. 
 
 eChicago, etc., R. v. Yorty, 158 111. 321, 32|1, 42 N. E. -64; I Shearman & 
 Redf. on Negligence, sth ed., sec. i, note; also sec. 3. 
 
 "103 Maine 250, 68 Atl. 1044. 
 
 630 
 
IN GENERAL § 961 
 
 marking upon thoughtless inattention says that: "Thoughtless inat- 
 tention has' been declared to be the essence of negligence." 
 
 § 961. Civil as well as criminal liability. — ^As stated in chapters 
 devoted to other features of the law of negligence, the criminal prose- 
 cution of a criminal remedy for negligent acts, is not a bar to the 
 maintenance of a civil suit for damages at the instance of the party 
 aggrieved, growing out of those acts. 
 
 In Parker v. Barnard,* Mr. Justice Devens says: 
 
 "As a general rule, where an act is enjoined or forbidden 
 under a statutory penalty, and the failure to do the act enjoined, 
 or the doing of the act forbidden, has contributed to an injury, 
 the party thus in default is liable therefor to the party injured, 
 notwithstanding he may also be subject to a penalty. Kidder v. 
 Dunstable, 11 Gray (^TJ Mass.) 342; Salisbury v. Herchenroder, 
 106 Mass. 458 ; Hyde Park v. Gay, 120 Mass. 589." 
 
 § 962. Massachusetts statute on this subject. — The following 
 is the statute in Massachusetts on this subject: 
 Revised Laws, chap. 218, sec. 66 : 
 
 "No proceedings against a person for a crime shall bar a civil 
 action which might otherwise be maintained by a person who is 
 aggrieved by the commission of the crime."' 
 
 § 963. Intent in negligence.^" — ^To repeat here what has been the 
 subject of consideration in other places, all that distinguishes negli- 
 gence from wilful injury "is the absence of any distinct intention to 
 produce the precise damage to the plaintiff, which actually follows as 
 a result of the negligence."^^ 
 
 'See also West v. New York Transp. Co., 47 Misc. 603, 94 N. Y. Supp. 426. 
 
 813s Mass. 116, 120. 
 
 'See Lewis v. Amorous, 3 Ga. App. 50, 57, 59 S. E. 338; State v. Goetz, 83 
 Conn. 437, 76 Atl. 1000. 
 
 ^"See §§ 1465, et seq, Criminal Negligence, etc. 
 
 i^Shearman & Redf. on Negligence, sth ed., sec. 19; Wharton on Negligence, 
 2d ed., sec. 11. 
 
 631 
 
§ 9^4 ACTI0NABI,E NEGLIGENCE 
 
 In Morrison v. Lawrence,^^ Mr. Justice Braley quoting the language 
 of Chief Justice Gray, in Hawes v. Knowles,^^ says : 
 
 "Generally in actions of tort at common law, intent or motive 
 is material only on the measure of damages. Hawes v. Knowles, 
 114 Mass. 518; Rideout v. Knox, 148 Mass. 368, 372; Burt v. 
 Advertiser Newspaper Co., 154 Mass. 238, 245. But, as in this 
 case, it may be an element on which liability for a statutory tort 
 finally rests, and when it is the subject of inquiry, the issue 
 raised is one of fact and not of law, and often must be ascer- 
 tained from results. See Learock v. Putnam, 1 1 1 Mass. 499." 
 
 § 964. The relation of duty to negligence.^* — Into every case of 
 actionable negligence there must enter as necessary requirements, a 
 duty, and a violation of that duty. If there is no duty there can be no 
 negligence. The duty must be a legal duty, not a moral one, and 
 must be reasonable. "The law makes no unreasonable demands nor 
 requires from any one superhuman wisdom or forsight." The duty 
 is to exercise care?^ 
 
 Chief Justice Erie, in Cotton v. Wood,^* says : 
 
 "The plaintiff is not entitled to succeed unless there be affirm- 
 ative proof of negligence on the part of the defendant or his 
 servant ; and there can be no such proof, unless it be shown that 
 there existed some duty owing from the defendant to the plain- 
 tiff, and that there has been a breach of that duty." 
 
 Speaking on the subject of automobile operation. Chief Justice Pope, 
 in Rochester v. BuU,^' says : 
 
 "The duty, therefore, devolves upon the drivers of such ma- 
 chines to exercise due care to prevent accidents." 
 
 "186 Mass. 4S6, 462, 72 N. E. 91- 
 
 i3ii4 Mass. S18. 
 
 i*See the following motor vehicle cases : Knight v. Lanier, 69 N. Y. App. Div. 
 459, 74 N. Y. S. looi; Mahoneyv. Maxfield, 102 Minn, zt^, 113 N. W. 904; 
 Lorenz v. Tisdale, 127 N. Y. App. Div. 433, 111 N. Y. S. 173. 
 
 isShearman & Redf. on Negligence, Sth ed., sees. 8, 9, 10, 11, 15; Wharton on 
 Negligence, 2d ed., sees. 82, 83. 
 
 168 Com. Bench. 568, 571, 
 
 "78 S. C. 249, 251. 
 
 632 
 
IN GENERAL § 966 
 
 § 965. Damage must follow negligence. — Two essential elements 
 must concur to make a case of actionable negligence, which Messrs. 
 Shearman & Redf ./' tersely state as follows : 
 
 "Neither negligence without damage, nor damage without 
 negligence, will constitute any cause of action. The concurrence 
 of the two elements is essential. Some damage must be infer- 
 able from the facts pleaded and proved or no action will lie. 
 But nominal damage is enough to sustain the action." 
 
 And to maintain the action, plaintiff must show that the damage 
 was special to himself — that he suffered injury." 
 
 § 966. Standards for measuring negligence.^" — In the chapter 
 on "Negligence Generally," this subject was especially considered. The 
 purpose in adverting to it again is not to renew the discussion, but 
 to bring out clearly the standards as then stated, by which negligence 
 is to be measured in its several degrees. 
 
 In Com. V. Pierce,^^ Mr. Justice Holmes, speaking to this point, 
 says: 
 
 "So far as civil liability is concerned, at least, it is very clear 
 that what we have called the external standard would be ap- 
 plied, and that if a man's conduct is such as would be reckless 
 in a man of ordinary prudence, it is reckless in him. Unless he 
 can bring himself within some broadly defined exception to the 
 general rules, the law deliberately leaves his idiosyncrasies out 
 of account, and peremptorily assumes that he has as much 
 capacity to judge and foresee consequences as a man of ordinary 
 prudence would have in the same situation. In the language of 
 Tindale, C. J., 'Instead, therefore, of saying that the liability 
 for negligence should be co-extensive with the judgment of each 
 individual, which would be as variable as the length of the foot 
 
 isNegligence, Sth ed., sec. 23. 
 
 191 bid. sec. 24. 
 
 2oSee the following motor vehicle cases: Christy v. Elliott, 216 111. 31, 74 
 N. E. 103s, 108 Am. St. Rep. 196 ; Indiana Springs Co. v. Brown, 165 Ind. 465, 
 74 N. E. 6is; Wright v. Crane, 142 Mich. 508, 106 N. W. Repr. 71 (Mich.) ; 
 Mclntyre v. Orner, 166 Ind. 57, 76 N. E. 750 ; Titus v. Tangeman, 116 N. Y. 
 App. Div. 977, loi N. Y. S. 1000; Sliaffer v. Coleman, 35 Pa. Super. Ct. 386; 
 State V. Campbell, 82 Conn. 671, 74 Atl. Repr. 927 (Conn.) ; State v. Goetz, 
 83 Conn. 437. 76 Atl. 1000. 
 
 21138 Mass. i6s, 176. 
 
 "78 S. C. 249, 58 S. E. 766. 
 
 633 
 
§ 9^7 ACTIONABLE NEGUGENCE 
 
 of each individual, we ought rather to adhere to the rule which 
 requires in all cases a r'eigard to caution such as a man of ordi- 
 nary prudence would observe.' Vaughn v. Menlove, 3 Bing. 
 N. C. 468, 475 S. C. 4 Scott 244." 
 
 In the case of Rochester v. Bull," a motor vehicle case, Chief Justice 
 Pope, speaking for the court, says : 
 
 "The amount of due care necessary varies with the various 
 circumstances. Acts which in a given case might be negligence, 
 in another might be due care." 
 
 §967. The question of negligence is one of law as well as of 
 fact.^^ — While there exists in Massachusetts a rule concerning the 
 burden of proving due care on the part of the plaintiff that does not 
 prevail in many jurisdictions, as will be noticed in the consideration of 
 contributory negligence, the following case is cited generally on the 
 point in review. 
 
 In Wright v. Maiden & M. R. Co.,^* Mr. Justice Hoar says (p. 289) : 
 
 "It has been decided by the Supreme Court of Vermont that 
 the question of negligence is a mixed question of law and fact; 
 and that it is the duty of the judge to instruct the jury what 
 will constitute negligence. Trow v. Vermont Central Railroad, 
 24 Vermont 487; Briggs v. Taylor, 28 Vermont 180. And in 
 several recent cases in this court it has been held, that where a 
 plaintiff seeks to recover compensation for an injury occasioned 
 by the carelessness of another, offers no evidence that he was 
 himself in the exercise of care, but, on the contrary, the whole 
 evidence on which his case rests shows that he was careless, the 
 court may rightfully instruct the jury as a matter of law, that the 
 action cannot be maintained."^" 
 
 § 968. Functions of the court and of the jury. — In the often 
 quoted case of Saltonstall, v. Stockton,^" the Chief Justice of the United 
 
 ^'See the following motor vehicle cases : Curley v. Elec. Vehicle Co., 68 N. Y. 
 App. Div. 18; New York Transp. Co. v Garside, 157 Fed. Repr. 521; Horak v. 
 Daugherty, 114 N. W. Repr. 883, Iowa. 
 
 2*86 Mass. 283. 
 
 26Lucas V. New Bedford & T. R., 72 Mass. 64; Oilman v. Deerfield, 81 Mass. 
 577 ; Gavett v. Manchester & L,. R., 82 Mass. 501 ; Gahagan v. Boston & L. R.. 
 83 Mass. 187; Todd v. Old Colony, etc. R., 85 Mass. 21. See also Shearman & 
 Redf. on Negligence, Sth ed., sec. 52. 
 
 26Taney's Cir. Ct., Dec. i, 16, affirmed 13 Peters, 181. 
 
 634 
 
IN GENERAL § 968 
 
 States, sitting at circuit, briefly stated the respective functions of the 
 court and jury in this class of cases, in his charge to that body. Judge 
 Taney said: 
 
 "Questions as to negligence and reasonable skill and care in 
 every description of business, are necessarily questions of fact, 
 and belong to the jury; and the court can do nothing more 
 than to give the rule by which they are to be tried." 
 
 Later, in the same charge, it was said: 
 
 "If there is the slightest evidence, conducing to prove the fact, 
 the question must be left to the jury, and even if there be some 
 doubt whether there is any competent and legal evidence of the 
 fact, the court would be unwilling to withdraw the question al- 
 together from the jury, because it is to that tribunal that the 
 law commits the decision upon controverted facts, and the court 
 has no right to suppose that the jury would find a verdict upon 
 slight and insufficient testimony, or without any testimony to 
 warrant it." 
 
 Citing a number of decisions in the Supreme Court of the United 
 States, Mr. Justice Harlan, in Delaware etc. R. v. Converse,^' says on 
 the same point : 
 
 "Undoubtedly, questions of negligence, in actions like the 
 present one," (a personal injury case) "are ordinarily for the 
 jury, under proper directions as to the principles of law by 
 which they should be controlled. But it is well settled law that 
 the court may withdraw a case from them altogether and direct 
 a verdict for the plaintiff or the defendant, as the one or the 
 other may be proper, where the evidence is undisputed or is of 
 such conclusive character that the court, in the exercise of a 
 sound judicial discretion, would be compelled to set aside a 
 verdict returned in opposition to it."^* 
 
 In Bennett v. Busch,^* the court say the rule is "that where fair 
 minded men might honestly differ as to the conclusion to be drawn 
 from facts, whether controverted or uncontroverted, the question at 
 issue should go to the jury." 
 
 "139 U. S. 469, 472. 
 
 =8See also Allyn v. Boston & A. R., los Mass. ^^•, Meyer v. Houck, 85 la., 
 319, 52 N. W. 362; Thompson, Com. on Negligence, 2d ed., sec. 424; Shearman 
 & Riedf. on Negligence, Sth ed., sec. 53. 
 
 2975 N. J. L,. 240, 67 Atl. Repr. 188. 
 
 63s 
 
§ 969 ACTlONABI^i; NEGLIGBNCE 
 
 It is for the jury to say whether the automobile should be stopped in 
 any given case.^" 
 
 § 969. — Duty o£ the court.^^— The practice in Massachusetts is 
 briefly and comprehensively stated in Bigelow v. Inhab. of Rutland,*^ 
 where the Supreme Court, by Mr. Justice Fletcher say: 
 
 "The court was, in effect, asked to determine the question of 
 ordinary care; but all the court could do, was to instruct the 
 jury to consider and determine that question, upon all the evi- 
 dence be'fore them." 
 
 In McFern v. Gardner,*^ the defendant "moved the court to pre- 
 emptorily instruct the jury that plaintiff could not recover." Presiding 
 Justice Bland, says concerning this request : 
 
 "Every litigant has a right under the constitution when he 
 has offered substantial evidence tending to prove his case, to 
 have it submitted to the jury; and for the purpose of determin- 
 ing whether or no there is substantial evidence to submit to the 
 jury, the testimony of plaintiff as offered should be accepted as 
 true and every reasonable inference in his favor should be 
 drawn therefrom." 
 
 s»0'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36. 
 
 siSee the following motor vehicle cases : (A) For the court — Murphy v. Wait, 
 102 N. Y. App. Div. 121, 92 N. Y. S. 253 ; Gregory v. Slaughter, 124 Ky. 34S. 
 99 S. W. 247; Rochester v. Bull, 78 S. C. 249, 58 S. E. 766; Fletcher v. Dixon, 
 107 Md. 420, 68 Atl. Repr. 87s; Lorenz v. Tisdale, 127 N. Y. App. Div. 433, 
 III N. Y. S. 173; (B For the jury— Curley v. Elec. Vehicle Co., 68 N. Y. App. 
 Div. 18, 74 N. Y. S. 35; Knight v. Lanier, 69 N. Y. App. Div. 454, 74 N. 
 Y. S. 999; Thies v. Thomas, "n N. Y. Supp. 276; Wright v. Crane, 142 
 Mich. 508, 106 N. W. Repr. 71; Spina v. N. Y. Transp. Co., 96 N. Y. Supp. 
 270, 48 Misc. 524; Murphy v. Meacham, i Ga. App. 155, 57 S. E. 1046; Ben- 
 nett V. Busch, 75 N. J. Eq. 240; 67 Atl. Repr. 188; Mendleson v. Van Rensselaer, 
 118 N. Y. App. Div. S16, 103 N. Y. S. 575 ; Benoit v. Miller,-67 Atl. Repr.87 (R. I.) ; 
 Rochester v. Bull. 78 S. C. 249, 58 S. E. 776; Lampe v. Jacobsen, 46 Wash. 536, 
 90 P. 654; Dudley v. Kingsbury, 199 Mass. 258, 85 N. E. 76; King v. .Green, 7 
 Cal. A. 473, 94 Pac. Repr. ^TJ•, Hartje v. Moxley, 235 111. 164, 85 N. E. 216; 
 Walkup v. Beebe, 139 Iowa 395, 116 N. W. Repr. 321; Hall v. Compton, 130 
 Mo. App. ()^s^ 108 S. W. 1 122; McGee v. Young, 132 Ga. 606, 64 S. E. 689; 
 Lynch v. Shearer, S3 Conn. 73, 75 Atl. Repr. 88 ; Reed v. Martin, 160 Mich. 253, 
 I2S N. W. Repr. 61; Baker v. Close, 137 N. Y. App. Div. 529, 121 N. Y. S. 
 1079. 
 
 8258 Mass. 247. 
 
 88121 Mo. App. I, S, 97 S. W. 972. 
 
 636 
 
IN GENERAL § 970 
 
 § 970. Dismissing the complaint. — On a motion to dismiss the 
 complaint "inferences most favorable to plaintiffs must be drawn."'* 
 
 The Supreme Court of Massachusetts have briefly but comprehen- 
 sively expressed their view upon this point. In Newcomb v. Boston 
 Protective Department,'^ Mr. Justice Knowlton remarks (p. 600) : 
 
 "As a general rule in deciding a question in relation to negli- 
 gence, each element which enters as a factor into one's act to 
 give it character is to be considered in connection with every 
 other, and the result is reached by considering all together."" 
 
 § 971. Burden of proving negligence.'^ — Negligence is not pre- 
 sumed. It must be proved to the satisfaction of the jury and the bur- 
 den of proving it is upon the party by whom it is alleged.'* 
 
 The burden is on the plaintiff to show negligence by a preponder- 
 ance of evidence and the court may instruct that the burden is on him 
 to "establish by a fair preponderance of affirmative evidence" that de- 
 fendant was negligent." 
 
 If there is no evidence of negligence on the part of the defendant 1 .• 
 if the evidence is equally balanced the jury should find for the defend- 
 ant.*" 
 
 Messrs. Shearman & Redfield*^ say: 
 
 "In an action founded upon negligence, the burden of proof of 
 course rests upon the plaintiff. He must make out his case by 
 a clear preponderance of evidence; but he is not bound to do 
 so beyond a reasonable doubt. The burden of proof as to de- 
 fendant's negligence remains upon plaintiff throughout the trial." 
 
 3*Foley v. Forty-second St., etc., Ry., 97 N. Y. Supp., 49 Misc. 649, 958; 
 Gross V. Foster, 134 N. Y. App. Div. 243, 118 N. Y. S. 889. 
 
 35146 Mass. 596; 16 N. E. 555- 
 
 38See Hall v. Ripley, 119 Mass. 13s ; Horrigan v. Inhab. Clarksburg, 150 
 Mass. 218, 220, 22 N. E. 897; Garfield v. Hartford St. Ry. Co., 80 Conn. 260, 
 67 Atl. 890; Johnson v. Shaw, 204 Mass. 165, 90 N. E. S18. 
 
 "See §§ 1632, et seq. 
 
 ssRobinson v. Huber, 63 Atl. Repr. 873 (Del.) ; Brown v. Wilmington, 4 Boyce 
 (Del.) 492, 90 Atl. 44. 
 
 'sSuUivan v. Smith, 123 Md. 546; 91 Atl. 4S6, 8 N. C. C. A. 378. 
 
 ^^Wellington v. Reynolds, 177 Ind, 49; 97 N. E. iSS, 2 N. C. C. A. 300. 
 
 *iOn Negligence, Sth ed., sec. 57. 
 
 637 
 
§ 972 ACTlONABIvH)) NEGLIGENCE 
 
 The following though based on the Massachusetts rule before re- 
 ferred to, is of general application. Broult v. Hanson,*^ was a case in 
 which two horse-drawn vehicles collided. Mr. Justice Knowlton says : 
 
 "It has often been decided that in a case of this kind, the 
 burden of proof remains on the plaintiff, as well after as before 
 the introduction of prima facie evidence of negligence. A 
 prima facie case calls for the introduction of evidence on the 
 other side to meet it. If evidence of equal weight is introduced, 
 so that the two sides are in even balance, the plaintiff fails. 
 Powers V. Russel, 13 Pick. 69; Central Bridge v. Butler, 2 
 Gray 130; Nichols v. Munsel, 115 Mass. 567."" 
 
 The burden is upon a gratuitous bailee of an automobile after evi- 
 dence that he was in collision while driving it, to show that degree of 
 care that the law required of him.** 
 
 § 972. Burden of proof in case of acts of servant. — The burden of 
 proof is on the plaintiff to show not only that his injury was the proxi- 
 mate result of the negligence of the driver but also that the driver was 
 the servant of the defendant and acting in the scope of his employ- 
 ment.*= 
 
 § 973. Distinction between burden of proof and preponderance 
 of evidence. — "Burden of proof" and "preponderance of evidence," it 
 must be borne in mind, are distinct propositions in every case. This is 
 very clearly stated by Mr. Justice Winslow in Eichman v. Buchheit,*' 
 a motor vehicle case, wherein it is said : 
 
 "Preponderance of evidence and burden of proof are not the 
 same thing, although they run into each other. By preponder- 
 ance of evidence is meant the evidence which possesses greater 
 weight or convincing power ; by burden of proof is meant the 
 duty resting on the party having the affirmative of the issue to 
 satisfy or convince the minds of the jury, by the preponderance 
 of the evidence, of the truth of his contention. It is not enough 
 
 <2iS8 Mass. 17, 18, 32 N. E. 900. 
 
 <3See Cotton v. Wood, 8 Com. Bench Reps. 568, 571 (Eng.) ; Thies v. 
 Thomas, 77 N. Y. Supp. 276, 1902; Ward v. Meredith, 220 111. 66, 1906; Towle 
 V. Morse, 103 Me. 250, 68 Atl. 1044; Simeone v. Lindsay, 6 Pen. (Del.) 224; 
 6s Atl. 778; Union Traction Co. v. Howard, 173 Ind. 335, 90 N. E. Repr. 764. 
 
 **Thomas v. Hacjjney, 192 Ala. 27; 68 So. 296. 
 
 *5Patterson v. Millican, 12 Ala. App. 324, 66 So. 914. 
 
 4'ii28 Wis. 38s, 388, 107 N. W. 325- 
 
 638 
 
IN GENERAI, § 974 
 
 that his evidence is of a slightly greater weight or convincing 
 power, it must go further, and satisfy or convince the minds of 
 the jury, before the burden of proof is discharged." 
 
 § 974. Burden of proof— "shifting."— The expression "shifting the 
 burden of proof," from the plaintiff to the defendant is often used, and 
 frequently misused *' 
 
 When the plaintiff has introduced proof enough to raise a fair pre- 
 sumption of defendant's negligence, commonly spoken of as making a 
 prima facie case, then it falls to the defendant to explain it away if he 
 can. It is not uncommon to see it stated, at this time, the "burden of 
 proof shifts." This expression is open to criticism on the ground that 
 the burden of proving defendant's negligence is at all times, on the 
 plaintiff, and actually never leaves him. Messrs. Shearman & Red- 
 field,** entitled a paragraph (Sec. 58), with this expression, but in view 
 of the language of their preceding section, quoted above (§ 900), the 
 two should be read together.*' 
 
 The Supreme Court in Tourtellot v. Rosebrook,'" by Mr. Justice 
 Wilde, say : 
 
 "It has been argued, that if the plaintiff had made out a prima 
 facie case of negligence, the burden of proof shifted, and that 
 the defendant was bound to prove affirmatively that he had used 
 due care and diligence. But there is no ground whatever for 
 this argument, unless the defendant had confessed and under- 
 taken to avoid all the material facts on which the prima facie 
 case depended. For where each of several concurring facts is 
 necessary to one entire cause of action, the denial of either of 
 them is necessarily a denial of the right of action. The burden 
 of proof, therefore, does not shift, unless the defense does not 
 involve a denial of any material allegation in the declaration. 
 The rule is correctly laid down in Powers v. Russell, 13 Pick. 
 
 *^See §§ 1652, et seq. 
 
 *80n Negligence, 5th ed. 
 
 *'See the following motor vehicle cases: Thies v. Thomas, 77 N. Y. Supp. 
 276; Hughes V. Connable, S Pen. (Del.) 523, 64 Atl. 72; Hannigan v. Wright, 5 
 Pennew. 537 (Del.), 63 Atl. 234; McFern v. Gardner, 121 Mo. App. i, 97 S. W. 
 972; Simeone v. Lindsay, 6 Pen. (Del.) 224, 6s Atl. 778; Towle v. Morse, 103 
 Maine, 250, 68 Atl. 1044; Dultz v. Fischlowitz, 104 N. Y. Supp. 357, App. Term; 
 Rochester v. Bull, 78 S. C. 249, 58 S. E. 766. 
 
 (Note — For later cases, see § 1652). 
 
 5°S2 Mass. 460, 462. 
 
 639 
 
§ 975 ACTIONABLE NBGLIGSNCE 
 
 (30 Mass.) 76, Tj. Where the proof on both sides applies to 
 one and the same issue or proposition of fact, the party, whose 
 case requires the establishment of such fact, has all along the 
 burden of proof, although the weight on either scale may at 
 times preponderate. But when prima facie evidence is given of 
 such fact, and the adverse party, instead of producing proof to 
 negative the same fact, proposes to show another and distinct 
 proposition, which avoids the effect of it, then the burden of 
 proof shifts and rests upon the party proposing to show the lat- 
 ter fact." 
 
 II. Ordinary Care. 
 
 § 97S. In general. 
 
 976. Degrees of care. 
 
 977. Degree of care varies with character of vehicle. 
 
 978. Dangerous conditions or situations. 
 
 979. Care of prudent man. 
 
 980. Care of beginner. 
 
 981. Ordinary care does not generally involve anticipating another's neg- 
 
 ligence. 
 
 982. Reliance on care on the part of others. 
 
 983. "Ordinary care" applies to the safety of property as well as to that of 
 
 persons. 
 
 984. Evidence of "custom" on the question of negligence. 
 
 985. Evidence of habits of the driver. 
 
 986. Observance of care for others while exercising lawful right — ^noise. 
 
 987. Speed as negligence. 
 
 988. What is high speed. 
 
 989. Pure accident, act of God, vis major, inevitable accident. 
 
 § 975. In general. — Dr. Thompson,'^. says, "actionable negligence 
 is usually the failure to exercise reasonable or ordinary care," and he 
 says of the latter : 
 
 "Ordinary care is a care proportioned to the risks of the busi- 
 ness, or of the particular situation."^^ 
 
 "It is such care as prudent men are accustomed to use under 
 the same circumstances-; and, if the danger is great, it may rise 
 to the grade of a very exact and unremitting attention."^^ 
 
 61 Com. on Negligence, 2d ed., sec. 23. 
 52Italics by Dr. Thompson. 
 
 s^Shearman & Redf. on Negligence, 5th ed., sec. 44s. 
 
 See remarks of Mr. Justice Field to same effect in Mather v. Rillston, 156 
 U. S. 391, 398, IS S. Ct. 464. 
 
 640 
 
ORDINARY CARS § 976 
 
 The court in charging the jury on this subject should disabuse the 
 jurors' minds of the idea that the ordinary care intended by the law, is 
 the care which men ordinarily exercise in similar situations, but instead 
 is the care usually exercised by prudent persons."* 
 
 § 976. Degrees of care. — ^The highest degree of care, or "great 
 care," as it is sometimes called, is defined by Messrs. Shearman & Red- 
 field,"" as : 
 
 "The care usually bestowed upon the matter in hand by the 
 most competent, conscientious, prudent and careful class of 
 persons engaged in the business to which such matters belong, 
 no matter how few such persons may be, if they are numerous 
 enough to have a recognized existence as a class." 
 
 And the test, in all the degrees of care, from "great" to "slight" is : 
 
 "The kind of care usually exercised by persons of the class 
 referred to, under circumstances * * * where their own interests 
 are to be protected from a similar injury, and when they hon- 
 estly intend to be careful. What they do, or omit to do, when in 
 a careless or reckless mood, is never any standard by which to 
 judge." 
 
 In Schlemmer v. Buffalo, Etc., Ry.,^' Mr. Justice Holmes, says : 
 
 "Negligence consists in conduct which common experience or 
 the special knowledge of the actor, shows to be so likely to pro- 
 duce the result complained of, under the circumstances known 
 to the actor, that he is held answerable for that result, although 
 it was not certain, intended or foreseen. He is held to assume 
 the risk on the same ground." 
 
 An instruction that reasonable care is that degree of care which an 
 ordinarily prudent person would or ought to have exercised is open to 
 the criticism that the words "ought to have" sets up a higher degree of 
 care than the law warrants. This is however a minor inaccuracy of 
 statement which is not reversible error."^ 
 
 s*Thompson, Cora, on Negligence, 2d ed., sec. 484. 
 
 "^Negligence, Sth ed., sec. 47. 
 
 '"220 U. S. 590, 31 S. Ct. 561. Negligence in Using^ Highways. Injuries due to 
 negligent operation of automobiles, and the duty and liability of owners and 
 operators thereof, i N. C. C. A. 1-39, note. 
 
 "'Elgin Dairy Co. v. Shepherd, 183 Ind. 463, 108 N. E. 234, 1915. 
 
 641 
 
 41 
 
§ 977 ACTIONABLE nbgugence 
 
 It is perhaps not inappropriate at this point, to refer again^' to the de- 
 gree of responsibility of the borrower to the lender, in the matter of the 
 exercise of care of the borrowed vehicle. In Smith's Leading Cases,^' 
 it is said : 
 
 "The responsibility of the bailee is much more strictly en- 
 forced in this class of bailments, and with justice, for the loan 
 to him is for his own advantage — not, as in the case of deposit, 
 for that of the bailor. Besides he may justly be considered as 
 representing himself to the bailor to be a person of competent 
 skill to take care of the thing lent ; see Wilson v. Brett, 1 1 M. 
 & W. IIS, per Parke, B. He is, therefore, bound to use great 
 diligence in the protection of the thing bailed, and will be respon- 
 sible even for slight negligence; nor must he on any account de- 
 viate from the conditions of the loan. Thus in Bringloe v. Mor- 
 rice, I Mod. 210, 3 Salk 271, the loan of a horse to the defendant 
 to ride was held not to warrant him in allowing his servant to 
 ride. But where a horse was for sale, and the vendor's agent 
 let A. have the horse for the purpose of trying it, A. was held 
 justified in putting a. competent person upon the horse to try it, 
 an authority to do so being implied ; Camoys v. Scurr, 9 C. & P. 
 383. If whilst the goods are in the custody of the bailee, they 
 are without any negligence on his part, injured by the negligence 
 of a stranger, the bailee is not liable to the bailor ; The Wink- 
 field (1902), P. D. 42."«'' 
 
 § 977. Degree of care varies with character of vehicle. — ^The de- 
 gree of care varies with the character of the vehicle. There is an 
 obvious difference between the use of a wagon and an automobile in 
 this respect."^ 
 
 The automobile has the same rights and duties as other vehicles on 
 the highway but it is the duty of its operator, the same as the driver of 
 any other vehicle, to use care proportionate to the dangers to which the 
 vehicle in which he travels exposes other travelers on the highway."^ 
 
 "§§ 809, 822. 
 "'ii ed., p. 196. 
 
 BoSee Oliphant on Horses, 6th ed., 274. 
 
 BiDeputy V. Kitnmel, 73 W. Va. 595; 80 S. E. 919. Si L- R- A. N. S. 989; 
 8 N. C. C. A. 369. 
 62East V. Auburn, 4,7 Ind. A. 530; 94 N. E. 895. 
 
 642 
 
ORDINARY CARE § 978 
 
 The jury in considering the due care of the automobilists should con- 
 sider the powerful agencies under their control and the disastrous conse- 
 quences to other travelers if there be mismanagement.'^ 
 
 What might be due care in the management of a horse and carriage 
 jogging along a country road affords no standard for the measure- 
 ment of the prudence of the driver of a motor car running over the same 
 road at high speed.'* 
 
 A driver of a powerful auto truck can without danger to himself con- 
 template with complacency the ordinary hazards of the street, even in- 
 cluding the common automobile. The serious responsibility and duty 
 rests on him according to the size, character and power of the truck 
 to operate it with commensurate vigilence and use every reasonable pre- 
 caution to avoid causing injury — not to simply take chances on what 
 others might do to avoid him.'" 
 
 "The care which the driver of an automobile must exercise is pro- 
 portionate to that instrumentality which he has in charge." Speaking 
 precisely every traveler is bound to exercise the care of the ordinarily 
 prudent and cautious person under all the circumstances. "But it 
 would sound too much of refinement to hold that there is any practical 
 inaccuracy in saying that one driving a high-powered automobile must 
 exercise greater care toward others on a state highway than one plod- 
 ding along a country road with an ox team."" 
 
 It is proper to instruct the jury that one operating an automobile is 
 bound to use the highest degree of care that a very careful person would 
 use under similar circumstances as although this is an abstract propo- 
 sition of law it correctly lays down the rules of law which obtain under 
 the circumstances of this case."' 
 
 § 978. Dangerous conditions or situations.'^ — "A greater degree 
 of care and a more exact and sustained attention are demanded in a 
 dangerous situation than in one not ordinarily attended with danger.""' 
 
 6'Brown v. Thayer, 212 Mass. 392; 99 N. E. 237. 
 
 »*Per Braley, J., in Brown v. Thayer, 212 Mass. 392, 99 N. E. 237. 
 
 »6Tuttle V. Briscoe Mfg. Co., (Mich.) ; iss N. W. 724, 1915. 
 
 "Com. V. Horsfall, 213 Mass. 232; 100 N. E. 362; Ann. Cas. 1914A. 682. 
 
 87Cool V. Peterson, 189 Mo. App. 717; 175 S. W. 244. 
 
 «8See Chap. XVI, "Dangerous Agencies." 
 
 ^'Thompson, Com, on Negligence, 2d ed., sees. 2, 446. 
 
 643 
 
§ 979 ACTIONABLE NEGUGENCE 
 
 Prudence implies precaution, and that implies the exercise of fore- 
 sight as to varying degrees of danger in situations as they are met.'" 
 In Sec. 354, Wharton Criminal Law, loth ed., it is also said : 
 
 "Any degree of rapidity on a thoroughfare, inconsistent with 
 the degree of check with which the horses may be held, may 
 make the owner responsible ; and this rule applies though it ap- 
 pears that prior caution by the person struck might have kept 
 him out of danger, unless such want of caution was the imme- 
 diate cause of the disaster.'"^ 
 
 The rules of law in this particular are equally applicable to cases 
 wherein motorists are involved.'^ 
 
 § 979. Care of prudent man. — ^^The driver of an automobile is re- 
 sponsible only for the care of a reasonably prudent man.''' 
 
 § 980. Care of beginner. — An inexperienced person who is learn- 
 ing to drive an automobile in the presence of and under the tuition of 
 an experienced man is not put to the hazard of answering in damages 
 unless there is proof of positive negligence. Evidence that a woman 
 learning to drive turned sharply to the left when told by her instructor 
 to turn to the right is insufficient.''* 
 
 But one learning to run an automobile may be found negligent in 
 driving swiftly with a demonstrator on the running board teaching him 
 how to operate the car when he did not see a child who crossed two- 
 thirds across the street before being hit." 
 
 ^"See the following motor vehicle cases : Ex parte Berry, 147 Cal. 523, 82 Pac. 
 44, 1905; Hannigan v. Wright, S Pennew. 537, 63 Atl. 234; Indiana Springs 
 Co. V. Brown, 165 Ind. 465, 74 N. E. 615; Mclntyre v. Orner, 166 Ind. S7. 76 
 N. E. 750; Simeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 778; House v. Cramer, 
 134 Iowa 374, 112 N. W. 3; Reg. v. Murray, S Cox. C. C. 510; Johnson v. Hud- 
 son R. R., 20 N. Y. 75. 
 
 "Rex. V. Walker, i Car. & P. 320 (Eng.) ; Reg. v. Swindall, 2 Car. & K. 229 
 (Eng.), 2 Cox C. C. 273; Reg. v. Mastin, 6 Car. & P. 396 (Eng.). 
 
 72State V. Campbell, 82 Conn. 671, 74 Atl. 927. 
 
 ''Reaves v. Maybank, (Ala.) ; 69 So. 137, 1916. 
 
 '^Bertrand v. Hunt, 89 Wash. 475, 154 Pac. 804. 
 
 '«Shipelis V. Cody, 214 Mass. 452 ; loi N. E. 1071, 4 N. C. C. A. 5. 
 
 644 
 
ORDINARY CARE § 981 
 
 § 981. Ordinary care does not generally involve anticipating an- 
 other's negligence.— The New York court of appeals, through Mr. 
 Justice Davis, say, in Jetter v. N. Y. & H. R. R.'° : 
 
 "In short in the exercise of his lawful rights, every man has 
 a right to act on the belief that every other person will perform 
 his duty and obey the law." 
 
 Dr. Thompson, Com. on Negligence,'' observes: 
 
 "Moreover, it is a sound view, that a person is not chargeable 
 with contributory negligence in not anticipating that other per- 
 sons will be negligent, or will violate the law, and in not pro- 
 viding against such possible violations of it." 
 
 In Northern Central Ry. v. Geis,'* Judge Alvey says of the parties in 
 an accident case: 
 
 "Neither could be required to anticipate the other's negli- 
 gence."" 
 
 § 982. Reliance on care on the part of others.'" — This proposition 
 follows close upon the rule just stated.*^ 
 
 In Parrott v. Barney,'^ affirmed in the United State Supreme Court,*^ 
 Mr. Justice Sawyer, Cir. J., says : 
 
 "In the exercise of his lawful rights, every man has a right to 
 act on the hypothesis that every other person will perform his 
 duty and obey the law; and in the absence of any reasonable 
 ground to think otherwise, it is not negligence to assume that he 
 is not exposed to a danger, which can only come to him through 
 
 T«2 Keyes, 154, i6r. 
 
 T'2d ed., sec. 1327. 
 
 '831 Md. 357. 
 
 "This expression was quoted with approval by Chief Justice Fuller, in 
 Washington R. v. Harmon's Admr., 147 U. S. S7i. S82, 13 S'. Ct. S57- See also 
 Nadeau v. Sawyer, ^z N. H. 70, 59 Atl. 369; Shearman & Redf. on Negligence, 
 5th ed., sec. 21. 
 
 soSee § 979, et seq. 
 
 siSee the following motor vehicle cases : Nadeau v. Sawyer, 73 N. H. 70, 59 
 Atl. 369, 1904; Towle V. Morse, 103 Maine 250, 68 Atl. 1044. 
 
 82i8 Fed. Cas. No. 10773, at p. 1247. 
 
 s^iS Wall. 524- 
 
 64s 
 
§ 9^3 ACTI0NABI,E NEGUGENCE 
 
 his disregard of law on the part of some other person." Citing 
 Jetter v. N. Y. & H. R. Co., 41 N. Y. 154; Earheart v. Young- 
 blood, 27 Pa. St. 332; Deyo v. N. Y. C. R., 34 N. Y. 10, 11; 
 Curtis V. Mills, 5 Car. & P. 489. 
 
 § 983. "Ordinary care" applies to the safety of property as well 
 as to that of persons. — The duty which every one owes his fellow- 
 man, is to exercise due care for the security and safety of his neighbor's 
 property as well as of his person. A violation of this duty is negligence 
 as much in the one case as in the other. When the infringement results 
 in mischief, the person whose property has been injured, has a right 
 of action for the recovery of damages which will repair such injury.'* 
 
 § 984. Evidence of "custom" on the question of negligence. — 
 "When it is considered that the rule of actionable negligence is not the 
 failure to exercise the care which men generally exercise, but the fail- 
 ure to exercise the care which reasonable and prudent men^^ usually 
 exercise in a given situation, — then it must be concluded that evidence 
 of a custom or habit of acting on the part of persons or corporations 
 similarly situated with the defendant, is inadmissible on the question of 
 negligence. * * * There is, however, judicial opinion to the effect 
 that, while it is competent" for the defendant to show that what he did 
 "was according to the custom" of others in the same line of business, 
 "yet this evidence is not conclusive," which is "tantamount to leaving 
 the question of the goodness of the custom to the decision of a jury."*" 
 
 A general custom may be allowed, but "no custom will be allowed to 
 affect the rights of parties which is either unlawful or unreasonable."'^ 
 "The question of the lawfulness or reasonableness of a custom is, in 
 every case, a question of law for the court," preUminary to its admission 
 to be passed upon by the jury as a good custom or a bad custom.*' 
 
 Where particular trades or occupations, or localities are involved, 
 the general custom or tlie local usage is competent. While not fur- 
 nishing an absolute standard of diligence or negligence, it is competent 
 
 8*See the following motor vehicle cases : Long v. Nute, 123 Mo. App. 204, 
 100 S. W. Sii ; O'Hara v. Nelson, 71 N. J. Eq. 161, 629, 63 Atl. 842; Davis v. Bouton 
 Motor Co., 126 N. Y. App. Div. 340, no N. Y. S. 359- See Thompson, Com. on 
 Negligence, 2d ed., sec. 3 ; Higgins v. Dewey, 107 Mass. 494, Gray, J. 
 
 s^Italics by the author of this book. 
 
 soThompson, Com. on Negligence, 2d ed., sec. 30. 
 
 sTIbid. 
 
 ssibid. 
 
 646 
 
ORDINARY CARE § 985 
 
 to be considered by the jury "in determining whether there has been a 
 failure to exercise ordinary care."°° 
 
 In Maynard v. Buck,"" Mr. Justice Wells, speaking of the evidence of 
 the degree of diligence involved in the expression "ordinary care," 
 says: 
 
 "The evidence as to the usual practice or mode of proceeding 
 ordinarily adopted by drovers was held * * * to be admissible 
 upon the question of ordinary care, because it tended to show 
 what had been found by the experience of others, to be most 
 judicious or expedient in like emergencies." 
 
 And elsewhere*^ he says of this rule in evidence : 
 
 "It is involved in the comparison indicated by the term 'ordi- 
 nary.' "°^ 
 
 But it must be shown that the customary manner of doing the act was 
 a careful one.°^ And tlie plaintiff may show that other persons adopted 
 better precautions for preventing injury, than the defendant used.°* 
 
 § 985. Evidence of habits of the driver,®" — Evidence of the habits 
 of the driver are frequently competent when in issue. 
 
 It is proper to show that it was the custom of the plaintiff's son the 
 driver, to turn into the yard without looking round. This shows him 
 to be a careless driver.'* 
 
 Evidence that plaintiff's driver had intemperate habits is not injurious 
 where he was intoxicated at the time of the accident and the plaintiff 
 must have known it.®^ 
 
 s^Ibid. sec. 32. See the following motor vehicle cases: Garfield v. Hartford, 
 etc., St. Ry. Co., 79 Conn. 458, 65 Atl. 598; House v. Cramer, 134 Iowa 374, "2 
 N. W. 3. 
 
 *°ioo Mass. 40, 42. 
 
 »^P. 43. 
 
 '^See also Cass v. Boston & 1,. R., 96 Mass. 448, 450; Kelly v. So. Minne- 
 sota R., 28 Minn. 98 ; Hegeman v. Western R., 13 N. Y. i, 9. 
 
 ^'Woodson V. Milwaukee, etc., R., 21 Minn. 60, 65; Wherry v. Duluth etc., 
 R., 64 Minn. 415, 418, 67 N. W. 223. 
 
 9*Hegeman v. Western R., 13 N. Y. i, 9 ; Carley v. New York, etc., R., 16 St. 
 Rep. 307, I N. Y. Supp. 63. 
 
 ^'Evidence of habit of driver of horse to drive while asleep, see § liSS- 
 
 »»Koenig v. Sproesser, 161 Wis. 8; 152 N. W. 473. 
 
 »'Lynn v. Goodwin, 170 Cal. 112; 148 Pac. 927, 9 N. C. C. A. 915. 
 
 K47 
 
§ 986 ACTlONABIvB NEGUGBNCE 
 
 § 986. Observance of care for others while exercising lawful 
 right®' — Noise. — Ordinary care involves the idea that it is the duty of 
 the operator to anticipate the natural, ordinary and usual conduct in 
 like circumstances, on the part of the other party." 
 
 References to the case of Feeny v. Wabash Railroad,"" will illustrate 
 the application of the principle in most of its bearings. The facts were 
 that the railroad track ran along side the wagon road. The locomotive 
 made a loud, irritating noise which frightened plaintiff's horses, and so 
 brought about the accident. Mr. Justice Johnson sums up the subject 
 now in hand. He says : 
 
 "One of the elementary rules by which conduct is to be meas- 
 ured imposes the duty upon every one of observing reasonable 
 care and prudence while in the exercise of lawful right. What 
 is reasonable care largely depends on the peculiar circumstances 
 of the given situation, but in every case where we find that the 
 actor had at his command the means and reasonable opportunity 
 of avoiding the infliction of an injury to one imperilled by his 
 act, but wilfully, recklessly or even negligently refused to ac- 
 knowledge any obligation to the endangered person, we hold 
 him culpable in law notwithstanding his plea that he was doing 
 what he had a lawful right to do, or that the injured person had 
 negligently placed himself in the pathway of a force lawfully 
 employed. 
 
 Did defendant owe plaintiff any duty to keep a lookout for 
 her approach and on discovering her peril to stop the noise that 
 was frightening the horses? * * * The observance of rea- 
 sonable care does impose a duty on the operators of trains" (and 
 pari passu on those of motor vehicles), "in situations of this 
 character. Knowing that people may be on the wagon road and 
 that their horses may be caused to become unmanageable by the 
 making of unusual, unnecessary and terrifying noises, they must 
 refrain from making such noises. Thus, in blowing the whistle 
 or emitting steam unnecessarily, they place themselves in the 
 attitude of being negligently indifferent to the rights of others 
 and thereby violate the fundamental rules with which we pre- 
 mised this discussion." 
 
 ssSee § 943 et seq., iiis ^* seq. 
 
 «9See § 986, et seq. 
 
 100 123 Mo. App. 420, 99 S. W. 477. 
 
 648 
 
ORDINARY CARE § 987 
 
 The Iowa Supreme Court has applied the same doctrine to motor 
 vehicles. In House v. Cramer/ Mr. Justice L,add says : 
 
 "Of course, noises incident to the operation of the machine 
 are not, of themselves, negligent. Such is the holding with ref- 
 erence to the use of engines on railroads * * *. But noises may 
 be emitted from a railway engine under such circumstances as 
 to render the company liable as for negligence. The same is 
 true with respect to automobiles. * * * The defendant's ve- 
 hicle was propelled by a gasoline engine, which * * * when in 
 motion, is attended by explosive noises, and even when standing 
 still, if the machinery is yet in motion, may make a whirring, 
 grinding sound, and it is a matter of common knowledge that 
 horses may be frightened thereat. The operator is charged with 
 notice of this fact * * * and with the duty of so handling 
 his own vehicle as not to unduly interfere with the use of the 
 highway by others."^ 
 
 § 987. Speed as negligence.^ — ^The common law does not limit the 
 rapidity at which a person may travel on the highway. Restraint in 
 this respect, extends no farther than to insist that the rate shall always 
 
 1134 Iowa 374 377, 112 N. W. 3- 
 
 ^See the following motor vehicle cases : Thies v. Thomas, Tj N. Y. Supp. 276, 
 1902 ; Shinkle v. McCuUough, 1 16 Ky. 960, '}^ S. W. 196, 1903 ; Nadeau v. Sawyer, 
 73 N. H. 70, 59 Atl. 369; Hemiessey v. Taylor, 189 Mass. 583, 76 N. E. 224; Han- 
 nigan v. Wright, S Pennew. 537 (Del.), 63 Atl. 234, 1905; Christy v. Elliott, 216 
 111. 31, 74 N. E. 103s; Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 
 190S ; Gifford v. Jennings, 190 Mass. 54, 76 N. E. 233 ; Mclntyre v. Orner, 166 
 Ind. 57, 76- N. E. 750; McFern v. Gardner, 121 Mo. App. i, 97 S. W. 972; Eich- 
 mann v. Buchheit, 128 Wis. 385, 107 N. W. 325 ; Simeone v. L,indsay, 65 Atl. Repr. 
 778 (Del.), 1907; Raber v. Hinds, no N. W. Repr. 597, 133 Iowa 312, 1907; 
 House v. Cramer, 134 Iowa 374, 112 N. W. 3; Strand v. Grinnell Auto. Co., 136 
 Iowa 68, 113 N. W. 488; Towle v. Morse, 103 Maine 250, 68 Atl. 1044; Rochester 
 V. Bull, 78 S. C. 249, 58 S. E. 766; Lampe v. Jacobsen, 46 Wash. 536, 90 P. 654; 
 McCummins v. State, 132 Wis. 236, 112 N. W. 25; Brinkman v. Pacholke, 41 
 Ind. App. 662, 84 N. E. 762; Walkup v. Beebe, 139 Iowa 395, 116 N. W. Repr. 
 321; Needy v. Littlejohn, 137 Iowa 704, 115 N. W. 483; Fletcher v. Dixon, 107 
 Md. 402, 68 Atl. Repr. 875, 1908 ; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 
 1122; O'Donnell v. O'Neil, 130 Mo. App. 360, 109 S. W. Repr. 815, 1908; 
 Arseneau v. Sweet, 106 Minn. 257, 1908, 119 N. W. 46; Tiffany etc. v. Drummond, 
 168 Fed. Repr. 47, 93 C. C. A. 469, 1909; Delfs v. Dunshee, 143 Iowa 381, 122 
 N. W. Repr. 236, 1909; Bradley v. Jaeckel, 65 Misc. 509, 119 N. Y. Supp. 1071, 
 1909; Tudor V. Bowen, 152 N. C. 441, 67 S. E. Repr. 1015, 1910. 
 
 'For further considerations on this subject, see Chapter XIX, "Speed Limita- 
 tions"; also Chapter XX. 
 
 649 
 
§ 9^8 ACTIONABLE negi,igi;nce 
 
 be reasonable under existing circumstances, and that every one shall 
 use due care not to injure his fellow-traveler, or to obstruct him in the 
 exercise of his equal right. Statutes, however, have been enacted in 
 many states, restricting the rate of travel, and providing penalties for 
 what has conle to be called "overspeeding" in motor vehicle operation.* 
 
 Excessive speed resulting in injury to another is a well-settled mat- 
 ter of negligence, and it usually presents a question of fact for the jury.^ 
 
 § 988. What is high speed. — ^^The jury may well find a speed of 
 twelve or fifteen miles an hour too great on a crowded city street.' 
 
 A speed of more than twenty miles an hour on a country highway is 
 prima facie evidence of negligence as the driver knows that he is likely 
 to meet livestock and travelers on foot and in vehicles.' 
 
 § 989. Pure accident, act of God, vis major, inevitable accident. 
 — In the chapter on criminal negligence, this subject is reviewed, and 
 the meaning of the terms expressing it, quite fully defined. The fol- 
 lowing may be considered in supplement of what is there said.' 
 
 Shearman & Redf. on Negligence,'' remarked that "an accident is 
 inevitable if the person by whom it occurs neither has, nor is legally 
 bound to have, sufficient power to avoid it or prevent its injuring an- 
 other."" 
 
 In Palmer v. Inhab. of Andover,^^ Mr. Justice Dewey, defines the 
 meaning of the term "pure accident," as 
 
 "A pure casualty happening without the last fault or negli- 
 gence on the part of the plaintiff." 
 
 In an earlier part of the opinion, speaking of a horse drawn vehicle, 
 the learned justice says: 
 
 "j£ * * * ^jjg injury was caused by * * * the want 
 of ordinary care, diligence or skill on the part of the plaintiff, in 
 
 *See Massachusetts Motor Vehicle law, Act of 1909, Chapter 534. 
 
 ^See Thompson, Com. on Negligence, 2d ed., sec. 1299. 
 
 "Lorah v. Rinehart, 243 Pa. 241 ; 8g Atl. 967. 
 
 'Scott V. O'Leary, IS7 Iowa 222, 138 N. W. 512. 
 
 sSee §§ 1503, 1504; also § 232, Insurer. 
 
 »Sth ed., sec. 16. 
 
 i02d ed., sec. 557. See Wharton on Negligence. 
 
 "56 Mass. 600, 608. 
 
 650 
 
ORDINARY CARE § 989 
 
 reference to his harness, his horses, or his carriage, or the use 
 of the road, it would be very clear that the plaintiff could not re- 
 cover. He must be without fault in this respect."^^ 
 
 In Nave v. Flack,^^ Mr. Justice Elliott says : 
 
 "A pure accident, where there is an absence of negligence, 
 will not supply a cause of action, but where the accident is at- 
 tributable to the negligence of the defendant, it is otherwise. 
 Shearman & Redf . Neg. sec. 5. The poverty of language compels 
 the use of words in diiferent meanings, and this is notably true 
 of the word 'accident.' Strictly speaking, an accident is an oc- 
 currence to which human fault does not contribute; but this is 
 a restricted meaning, for accidents are recognized as occurrences 
 / arising from the carelessness of men."^* 
 
 In "The Nitroglycerine case,"^° the United States Supreme Court, 
 speaking through Mr. Justice Field, say : 
 
 "No one is responsible for injuries resulting from unavoidable 
 accident, whilst engaged in a lawful business. A party charging 
 negligence as a ground of action must prove it. He must show 
 that the defendant by his act or by his omission, has violated 
 some duty incumbent upon him, which has caused the injury 
 complained of." Quoting Brown v. Kendall, 60 Mass. 295, and 
 Harvey v. Dunlap, L,alor's (N. Y.) Reps. 193.^° 
 
 Dr. Thompson, Com. on Negligence, 2d ed., sec. 28, says : 
 
 "The law does not impute negligence to an injury that could 
 not have foreseen or reasonably anticipated as the probable re- 
 sult of a given act or omission."^^ 
 
 i^See also Titus v. Inhab. of Northbridge, 97 Mass. 258; Hall v. Winsor, 
 118 Mass. 2SS; Vincent v. Stinehour, 7 Vt. 62; Flower v. Adams, 2 Taunton, 
 S14; Ex parte Stell, 4 Hughes, iS7 (Fed. Cas. I33S8). 
 
 I'po Ind. 205, 210. 
 
 i^See Shearman & Redf. on Negligence, Sth ed., sec. 18. 
 
 "IS Wall. 524, S37- 
 
 i^See Wharton on Negligence, 2d ed., sec. 116. 
 
 "See the following motor vehicle cases: Thies v. Thomas, 77 N. Y. Supp. 
 276, 1902; Hannigan v. Wright, S Pennew. S37 (Del-), 63 Atl. 234, 1905; McFern 
 V. Gardner, 121 Mo. App. i, 13. 97 S- W. 972; Simeone v. Lindsay, 65 Atl. Repr. 
 778 (Del.), 1907; Jordan v. Am. Sight-seeing Coach Co., 129 N. Y. App. Div. 
 313, 113 N. Y. S. 786. 
 
 651 
 
§ 99° ACTIONABI^E NgGIvIGENCE 
 
 A charge is correct which states that defendant is not Hable in case 
 of an accident and that an accident is such an unexpected catastrophe 
 as occurs without any one being to blame for it.^* 
 
 A jury's answer to questions that neither the plaintiff nor defendant 
 were negligent is not inconsistent and requires the entry of a verdict 
 for the defendant.^' 
 
 III. Contributory NecLiGENce.^" 
 
 § 990. Contributory negligence described. 
 
 991. Constituents of contributory negligence. 
 
 992. Degree of care required of plaintiff. 
 
 993. Where plaintiff is ignorant of the danger. 
 
 994. Rule of due care applies to plaintiff's property. 
 
 995. Functions of the court and of the jury concerning contributory negli- 
 
 gence. 
 
 996. Right of defendant to clear instruction. 
 
 997. Contributory negligence in the Federal courts and in the states generally. 
 
 998. Contributory negligence to be effective must have been a proximate 
 
 cause of the injury. 
 
 999. When injury would have happened notwithstanding plaintiff's negligence. 
 1000. Power to avoid results of defendant's negligence. 
 
 looi. Concurring negligence of both plaintiff and defendant 
 
 1002. "Slight" contributory negligence barring recovery. 
 
 1003. Comparative negligence. 
 
 1004. Culpable negligence by either party. 
 
 1005. Gross negligence by either party. 
 
 1006. Contributory negligence no bar in an action for reckless, or wilful or 
 
 wanton negligence by defendant. 
 
 1007. Where one voluntarily incurs danger. 
 
 1008. Danger incurred in the discharge of duty — street laborers. 
 1008A. Intoxication of driver. 
 
 lOoBB. Sitting on floor of car. 
 
 1009. Not negligent to fail to anticipate another's negligence undei all cir- 
 
 cumstances, 
 
 loio. If defendant has thrown plaintiff off his guard, 
 
 loil. Application of the foregoing principles. 
 
 1012. Situations of inconvenience rather than of immediate danger. 
 
 1013. Plaintiff's negligence enhancing injury. 
 
 1014. Burden of proof. 
 
 1015. Point of agreement in all jurisdictions. 
 
 1016. "Shifting" of the burden of proof. 
 
 isVesper v. Lavender, Tex. Civ. App. ; 149 S. W. 377. 
 
 "Boyd V. Boston Elevated Ry. Co., Mass. (1916), 112 N. E. 607. 
 
 652 
 
CONTRIBUTORY NEGLIGENCE § 990 
 
 1017. Burden of proving contributory negligence in states following the "gen- 
 
 eral" rule. 
 
 1018. "Massachusetts rule" concerning burden of proof in the matter of con- 
 
 tributory negligence. 
 
 § 990. Contributory negligence described.— Dr Thompson thus 
 distinguishes this form of negligence.^* 
 
 "Contributory negligence, in a sound judicial sense, is the 
 negligence of the plaintiff, or of the person on account of whose 
 death or injury the action is brought, amounting to a want of 
 ordinary care, and proximately contributing to bring about the 
 injury."^^ 
 
 § 991. Constituents of contributory negligence. — Dr. Thompson 
 in the section last quoted, says : 
 
 "The clear modem doctrine is that, in order to constitute such 
 negligence as will bar a recovery of damages, these two elements 
 must in every case occur : i. A want of ordinary care on the part 
 of the plaintiff, or where the action is for damages resulting in 
 death, a want of ordinary care on the part of the person killed ; 
 2. A proximate connection between this want of ordinary care, 
 and the injury complained of."^' 
 
 Chief Justice Owen, in Davis v. Guamieri,^* stating the underlying 
 principle and reason for the doctrine of contributory negligence, says : 
 
 "The doctrine of contributory negligence which is invoked by 
 the plaintiff in error, is founded upon considerations which 
 * * * are: (i) The mutual wrong and negligence of the 
 parties, and the reluctance of the law to attempt an apportion- 
 ment of the wrong between them ; (2) The principle which re- 
 quires every suitor who seeks to enforce his rights or redress his 
 wrongs, to go into court with clean hands, and which will not 
 
 ^'Contributory negligence in emergencies, see post, § 1088, et seq. Rescuers — 
 persons taking risk to save life, see post, § 1104. 
 
 ^iCom. on Negligence 2d ed., sec. 169. 
 
 22T0 the same effect is the deiinition of Shearman & Redf., on Negligence, 5th 
 ed., sec. 61, and that of Dr. Wharton on Negligence, 2d ed., sec. 130; Elgin 
 Dairy Co. v. Shepherd, Ind., 1914; 103 N. E. 433- 
 
 2^See also Shearman & Redf. on Negligence, sth ed., sees. 93, 94. 
 
 2*4S Ohio St. 470, 489, IS N. E. 3S0. 
 
 653 
 
§ 992 ACTIONABLE NgGLIG^NCB 
 
 permit him to recover for his own wrong; (3) 'The policy of 
 making the personal interests of parties dependent upon their 
 care and prudence. This is the settled doctrine of our state."^" 
 
 § 992. Degree of care required of plaintiff.^'— The modern rule is 
 "that the plaintiff cannot recover damages if the injury could have 
 been avoided by the exercise of ordinary or reasonable care on his part. 
 * * * This ordinary or reasonable care is simply a measure of care 
 and caution commensurate with the danger which is confronted. The 
 real rule requires no more than the exercise of ordinary care and pru- 
 dence in view of the circumstances. * * * T^e degree of care de- 
 manded by the rule varies with the degree of danger."^' 
 
 In Johnson v. Hudson River R.,^' in speaking of the care which "a 
 passenger in the street" is bound to exercise in avoiding vehicles, Mr. 
 Justice Slosson says : 
 
 "The prudence which he is to exert is one which is necessary 
 for his own protection, and must be of precisely that degree 
 which is commensurate with the danger to which he is exposed. 
 To attempt to pass in front of a carriage driven slowly, at a mod- 
 erate distance, might not violate any rule of prudence, while to 
 
 ^^This case was cited with approval in Newcomb v. Boston Prot. Dept., 146 
 Mass. 596, 602, 16 N. E. SSS- See the following motor vehicle cases : Hannigan 
 V. Wright, S Pennew. 537 (Del.), 63 Atl. 234; Morris v. Interurban St. Ry. Co., 
 100 N. Y. App. Div. 29s, 91 N. Y. S. 479 ; Murphy v. Wait, 102 N. Y. App. Div. 
 121, 92 N. Y. S. 253, 1905 ; Mclntyre v. Orner, 166 Ind. 57, 76 N. E. 7So; Garside 
 V. N. Y. Transp. Co., 146 Fed. Repr. 588, C. C. 1906; Siraeone v. Lindsay, 65 Atl. 
 Repr. 778 (Del.), 1907; Tiflfany & Co. v. Drummond, 168 Fed. Repr. 47, 93 C. C. 
 A. 469; McGee v. Young, 132 Ga. 606, 64 S. E. 689, 1909; Lawrence v. Fitchburg, 
 etc., Ry., 201 Mass. 489, 87 N. E. 898; Kauffman v. Nelson, 225 Pa. St. i74, 73 
 Atl. 1 105; Schoening V. Young, 55 Wash. 90, 104 Pac. Repr. 132, 1909; Himmel- 
 wright V. Baker, 82 Kans. s6g, 109 Pac. Repr. 178; Rogers v. Phillips, 206 Mass. 
 308, 92 N. E. 327- 
 
 2'See the following motor vehicle cases : Nadeau v. Sawyer, 73 N. H. 70, 59 
 Atl. 369; McCarragher v. Proal, 114 N. Y. App. Div. 470, 100 N. Y. S. 208; 
 Strand v. Grinnell Automobile Co., 136 Iowa 68, 113 N. W. 488; Lorenz v. Tis- 
 dale, 127 N. Y. App. Div. 433, iii N. Y. S. 173; Tiffany & Co. v. Drummond, 168 
 Fed. Repr. 47, 93 C. C. A. 469; Delfs v. Dunshee, 143 Iowa 381, 122 N. W. Repr. 
 236; Cecchi V. Lindsay, i Boyce (Del.) 185, 75 Atl. Repr. 376; Tudor v. Bowen, 
 152 N. C. 441, 67 S. E. Repr. 1015. 
 
 2'See § 970. Thompson, Com. on Negligence, 2d ed., sec. 171; Shearman & 
 Redf. on Negligence, 5th ed., sec. 87. 
 
 2820 N. Y. 75, 6 Duer. 646. 
 
 654 
 
CONTRIBUTORY NEGLIGENCE § 993 
 
 make the same attempt in front of a car approaching at the same 
 speed, and at the same distance, might be extremely hazardous. 
 There is no applying 'ordinary care' by a fixed measure to all 
 possible cases. It must vary in the degrees of its requirement 
 according to circumstances. 'Reasonable care' would have been 
 a much happier and more intelligible expression." 
 
 A charge sufficiently explains what constitutes contributory negli- 
 gence in stating that negligence is a breach of duty and a failure to 
 exercise that degree of care which a person of ordinary prudence 
 should exercise.^' 
 
 § 993. Where plaintiff is ignorant of the danger.'" — Irrespective 
 of the question of plaintiif's duty to be upon the lookout for his own 
 safety, there are occasions when he is in point of fact, ignorant of ap- 
 proaching danger. Under such circumstances, if the operator has had 
 time to realize, or if he had kept a proper lookouti should have realized, 
 that the other was in peril or at disadvantage, "he must exercise in- 
 creased exertion to avoid" an accident.^^ 
 
 § 994. Rule of due care applies to plaintiff's property. — ^And the 
 same rule of care that applies to the defendant, applies also to the plain- 
 tiff concerning the condition of his property. This feature permits of 
 but little addition to what already has been said. Bearing in mind the 
 true meaning of "ordinary care," the following expression of Dr. 
 Thompson,'^ is pertinent : 
 
 "The obvious rule here is, that if damages are inflicted by 
 reason of the breaking of a carriage or tackle of a traveler on the 
 highway, the traveler or owner of the tackle or vehicle is liable 
 only on the principle of want of ordinary care. It must be 
 shown by the plaintiff that he knew, or might with reasonable 
 diligence have known, of the defect, and was negligent in not re- 
 pairing it. The mere fact that a wheel runs off * * *is not 
 negligence per se."^^ 
 
 29Dunbar v. Jones, 87 Conn. 253; 87 Atl. 787. 
 soSee also §§ I329-I33S- 
 
 aiSpangler v. Markley, 39 Pa. Super. Ct. Reps. 351 ; Burvant v. Wolfe, 126 I^a. 
 787, 52 So. Repr. 1025. 
 '^Com. on Negligence, ad ed., sec. 1305. 
 S3 See Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762. See § 601, et seq. 
 
 655 
 
§ 995 actionable: negugence 
 
 § 995. Functions of the court and of the jury concerning con- 
 tributory negligence.'* — ^Dr. Thompson,^' asserts that "the true rule, 
 so far as there can be any rule, is that whether there has been contribu- 
 tory negligence on the part of the plaintiif is a question for the jury, 
 under the same circumstances and subject to the same limitations as 
 the question whether there has been negligence on the part of the de- 
 fendant." In any event it is for the jury when the evidence is con- 
 flicting.** But where the facts are undisputed or clearly show con- 
 tributory negligence, "the judge ought to direct a nonsuit or a verdict 
 for the defendant."*^ 
 
 Where on the evidence it could not be found that plaintiff's chauffeur 
 was free from negligence in a coUision with a street car, a verdict for 
 the defendant was properly directed.'* 
 
 A lengthy request to charge as to the duty of the plaintiff on seeing 
 the automobile is properly refused where there is no evidence that the 
 plaintiff saw the automobile before it struck her.'^ 
 
 § 996. Right of defendant to clear instruction. — The defendant 
 has the right to have the jury distinctly informed that contributory 
 negligence is a complete defence.*" 
 
 '*See the following motor vehicle cases: Caesar v. Fifth Ave. Stage Co., 45 
 N. Y. Misc. 331, 90 N. Y. S. 359; Murphy v. Wait, 102 N. Y. App. Div. 121, gz 
 N. Y. S. 253; Buscher v. N. Y. Transp. Co., 106 N. Y. App. Div. 493, 94 N. Y. 
 S. 798 ; McFern v. Gardner, 121 Mo. App., 97 S. W. 972 ; Turner v. Hall, 74 N. 
 J. 214, 64 Atl. Repr. 1060 ; Foley v. Forty-second St. Ry., 49 Misc. 649, 97 N. Y. 
 Supp. 958; Murphy v. Meacham, i Ga. App. 155, 57 S. E. 1046; Fletcher v. 
 Dixon, 107 Md. 402, 68 Atl. Repr. 875; King v. Green, 7 Cal. App. 473, 94 Pa. 
 Repr. 777; McGee v. Young, 132 Ga. 606, 64 S. E. 689; I^wrence v. Fitchburg, 
 etc., Ry., 201 ]\Iass. 489, 87 N. E. 898; Sanders v. Pennsylvania R. R., 225 Pa. 
 St. 105, 73 Atl. loio; Rogers v. Phillips, 206 Mass. 308, 92 N. E. 327; Miller v. 
 New York Taxicab Co., App. Tm., 120 N. Y. Supp. 899; Baker v. Close, 137 
 N. Y. App. Div. 529, 121 N. Y. S. 1079. 
 
 '^Com. on Negligence, 2d ed., sec. 425. 
 
 '^Ibid. sec. 427. 
 
 s'Ibid. sec. 428. 
 
 '*New Haven Taxicab Co. v. Connecticut Co., 87 Conn. 709; 89 Atl. 92. 
 
 ssWadley v. Dooly, 138 Ga. 275; 75 S. E. 153. 
 
 *" Austin St. Ry. Co. v. Heflin, Tex. Civ. App.; 158 S. W. 1040; Wadley v. 
 Dooly, 138 Ga. 27s ; 75 S. E. iS3 ; Texas Traction Co. v. Wiley, Tex. Civ. App. ; 
 164 S. W. 1028. 
 
 656 
 
CONTRIBUTORY NEGLIGENCE § 997 
 
 § 997- Contributory negligence in the Federal courts and in the 
 states generally.— In Grand Trunk R. v. Ives," Mr. Justice Lamar, 
 after remarking that there is no more an absolute standard of care and 
 diligence for the defendant than there is for the plaintiff, says : 
 
 "The generally accepted and most reasonable rule of law ap- 
 plicable to actions in which the defence is contributory negli- 
 gence may be thus stated : Although the defendant's negligence 
 may have been the primary cause of the injury complained of, 
 * yet an action for such injury cannot be maintained if the proxi- 
 mate arid immediate cause of the injury can be traced to the want 
 of ordinary care and caution in the person injured : subject to 
 this qualification, which has grown up in recent years, * * * 
 that the contributory negligence of the party injured will not 
 defeat the action if it be shown that the defendant might, by the 
 exercise of reasonable care and prudence, have avoided the con- 
 sequences of the injured party's negligence." Citing a number 
 of authorities. 
 
 In Bigelow v. Rutland, *^ referring to the charge to the jury in the 
 court below, it is said : 
 
 "The presiding judge left the question, whether the plaintiffs 
 were using ordinary care, to the jury, as one of the facts to be 
 determined by them, they having reference to all the circum- 
 stances connected with the transaction, and to find whether there 
 was a want of ordinary care. * * * 
 
 "The principles of law applicable to this case are well settled 
 and very familiar. The plaintiffs must show that there was no 
 want of ordinary care on their part." 
 
 In Dexter v. McCready,** Chief Justice Parke says. 
 
 "It is further contended that the court erred in giving to the 
 jury the same rule to ascertain negligence in the plaintiff, as the 
 court gave to ascertain negligence in the defendant. We know 
 of no rule that makes a distinction in this regard between the 
 parties in a cause. We think the claim is unfounded." 
 
 "144 U. S. 408, 429, 12 S. Ct. 679. 
 *2s8 Mass. 247, 248. 
 *3S4 Conn. 171, 174, 5 Atl. 855. 
 
 **Thonipson, Cora, on Negligence, 2d ed., sec. 216; Shearman & Redf. on 
 Negligence, Sth ed., sec. 93; Pendroy v. Great Northern Ry., 17 N. D. 433, 117 
 N. W. Repr. SSi- 
 
 657 
 42 
 
§ 998 ACTIONABLE NEGLIGENCE 
 
 § 998. Contributory negligence to be effective must have been a 
 proximate cause of the injury. — In order to prevent a recovery by rea- 
 son of contributory negligence, the plaintiflf's want of care "must have 
 been a proximate cause of the injury, and not a remote cause or mere 
 condition. If the negligence of the plaintiif was only remotely con- 
 nected with the injury, the plaintiff may recover damages, if, notwith- 
 standing such remote negligence of the plaintiff, the defendant might 
 have avoided the injury by the exercise of ordinary care. But if a 
 want of ordinary care on the part of the person injured, concurs as a 
 proximate cause in producing the injury, the defendant is not liable, 
 although in fault."** 
 
 Contributory negligence to stop recovery must be the proximate 
 cause of the injury.*' Unless the evidence affirmatively establishes 
 that the negligence of the injured party contributed to the injury the 
 defense of contributory negligence will not avail.*" 
 
 "Obviously," remarks Dr. Thompson,*' "it is not necessary that the 
 plaintiff's negligence shall have been the sole proximate cause of the 
 injury, for this would exclude all idea of negligence on the part of the 
 defendant." In Runyon v. Central Railroad, Etc.,*' the Supreme Court 
 say: 
 
 "It must be considered now the settled law, that in cases of this 
 kind, if, by the exercise of ordinary skill and care, the plaintiff 
 could have avoided the injury, or if his conduct contributed to 
 produce it, he is not entitled to recover, even though the defend- 
 ants were also guilty of negligence." 
 
 And in Pennsylvania R. v. Righter, *» the Court of Errors and Ap- 
 peals modified the foregoing, by importing into it the idea that plaintiff's 
 negligence must be a proximate cause as well as a contributing cause. 
 Mr. Justice Reed says : 
 
 "It is also settled that * * * if the plaintiff , in any degree 
 proximately contributed to the injury, he cannot recover." 
 
 «Everart v. Fischer, 70 Ore. 316; i4S Pac. 33; Wadley v. Dooly, 138 Ga. 27s; 
 7S S. E. 153; Shepard v. Norfolk & S. R. Co., 169 N. C. 239; 85 S. K- 277. 
 480'Dowd V. Newnham, 13 Ga. App. 220; 80 S. E. 36. 
 «'Sec. 217. 
 
 4825 N. J. L. 556, SS8. 
 *942 N. J. L. 180, 183. 
 
 658 
 
CONTRIBUTORY NEGUGENCE § 999 
 
 In Ohio & M. R. v. Hecht/" the court say : 
 
 "It is well settled that a plaintiff's negligence does not pre- 
 clude a recovery unless it contributed to his injury. It is not 
 mere negligence that bars a recovery, for the negligence must 
 also be contributory."'^ 
 
 § 999. When injury would have happened notwithstanding 
 plaintiff's negligence. — In such a case, "the negligence of the planitiff 
 is not deemed to be a proximate cause of the injury.''^" 
 
 Mr. Justice Reed, in the case of Pennsylvania R. v. Righter,''* says : 
 
 - "If, in spite of his negligent act, the injury would have oc- 
 curred by means of the negligent conduct of the defendant, or 
 if the injury is disconnected from his act by an independent 
 cause, then there is no legal contribution to his injury.""* 
 
 § 1000. Power to avoid results of defendant's Negligence. — If 
 the defendant was negligent, but plaintiff had a clear chance to avoid 
 defendant's negligence such conduct "is not merely contributory negli- 
 gence which will lessen the amount of his recovery, but is such a fail- 
 ure to avoid danger as will defeat his right to recover at all.""" 
 
 While an instruction that the plaintiff cannot recover if by taking 
 proper precautions he could have avoided the results of the defendant's 
 negligence is not accurate yet it is not subject to exception when taken 
 together it appears that the whole charge only holds the plaintiff to 
 ordinary diligence."' 
 
 § loor. Concurring negligences of both plaintiff and defendant.^' 
 — The general rule is that "where the catastrophe is the result of mutual 
 
 sons Ind. 443, 449, 17 N. E. 297. 
 
 5ii Shearman & Redf. Neg. (sth ed.), sec. 61; Wharton, Negligence, 2d ed., 
 sec. 303; Cooley on Torts, 3d ed., sec. 816; Beach Contributory Negligence, 
 sec. 3; Merklinger v. Lambert, 76 N. J. Law 806, 72 Atl. 119. 
 
 These references to text writers are by the court in the case of Ohio, etc., v. 
 Hecht, supra. 
 
 ^^Thompson, Com. on Negligence, 2d ed., sec. 220. 
 
 S342 N. J. L. 180, 183. 
 
 "See Garside v. N. Y. Transp. Co., 146 Fed. Repr. 588, N. Y. C. C. 
 
 B5McGee v. Young, 132 Ga. 606, 64 S. E. 689. 
 
 sBHolUday v. Athens, 10 Ga. App. 709, 74 S. E. 67. 
 
 "■See the following motor vehicle cases on the general subject: Hirsch v. 
 Interurban St. Ry. Co., 94 N. Y. Supp. 330, App, Term; Campbell v. St. Louis 
 
 659 
 
§ I002 ACTlONABtB NEGUGENCB 
 
 and concurring negligence of the plaintiff and defendant, the plaintiff 
 cannot recover damages. * * * The reason," in such cases, "why 
 * * * neither party can maintain an action against the other is not 
 that the wrong of the one is set off against the wrong of the other; 
 it is that the law cannot measure how much the damage suffered is 
 attributable to his own fault."°* 
 
 This rule is spoken of as a "general" rule because in a few juris- 
 dictions the doctrine of "comparative negligence" prevails towards a 
 more general acceptation of which there seems to be an increasing ten- 
 dency. 
 
 . § 1 002. "Slight" contributory negligence barring recovery."* — 
 Dr. Thompson remarks that "some of the cases say that if the negli- 
 gence of the plaintiff or person killed or injured, contributed in any 
 degree, however slight, to produce the result, there can be no recovery. 
 But this doctrine which visits upon the plaintiff or person injured all 
 the consequences of the defendant's negligence, although the plaintiff's 
 negligence may have been slight and trivial, and that of the defendant 
 gross and wanton, is cruel and wicked and shocks the ordinary sense 
 of justice of mankind. Such a rule finds no proper place in an enlight- 
 ened system of jurisprudence."'" 
 
 § 1003. Comparative negligence. — The doctrine of "Comparative 
 Negligence," obtains in only two or three states.®^ 
 
 It prevails in Georgia and Florida and at one time existed in lUi- 
 nois.°^ It is at present generally denied in other states. 
 
 In Marble v. Ross,"' Mr. Justice Morton, in 1878, pointing to the 
 error of the trial judge, remarked that he mistakenly — 
 
 "adopted the rule of comparative negligence, which prevails in 
 Illinois and Georgia, instead of the rule of contributory negli- 
 
 Transit Co., 121 Mo. App. 406, 99 S. W. 58; Watts v. Stroudsburg Pass. Ry., 34 
 Pa. Co. Ct. Repr. 373; Merklinger v. Lambert, 76 N. J. Law, 806, 72 Atl. 119; 
 Thomas v. Armitage, iii Minn. 238, 126 N. W. Repr. 735. 
 
 ssThompson, Com. on Negligence, 2d ed., sec. 176; James Everard's Brew- 
 eries V. New York Rys. Co., 151 N. Y. S. 90S (N. Y. Sup., App. Term). 
 
 ■s^See § 1018, Mass. Rule, contributory negligence. 
 
 BoCom. on Negligence, 2d ed., sec. 170. 
 
 See Campbell v. St. Louis Transit Co., 121 Mo. App. 406, 99 S. W. 58. 
 
 BiThompson, Com. on Negligence, 2d ed., sec. 259; Shearman & Redf. on 
 Negligence, 5th ed., sees. 102, 103. 
 
 fi^Thompson, Com. on Negligence, 2d ed., sec. 269; Wharton on Negligence, 
 2d ed., sec. 334. 
 
 68 124 Mass. 44, SO- 
 
 660 
 
CONTRIBUTORY NEGLIGENCE § IOO4 
 
 gence which prevails in this state and in most other jurisdic- 
 tions.""* 
 
 Briefly described as it exists in Georgia, Dr. Thompson/^ says : 
 
 "Where the negligence of both parties concurs in producing 
 the accident, the defendant must pay damages to the plaintiff, 
 provided he could have avoided the accident by the exercise of 
 ordinary care," but "the jury should look to the fault of the plain- 
 tiff in mitigation of damages.""" 
 
 All of which means that on this principle, the jury is to strike a bal- 
 ance between the concurring acts of negligence, and attach the responsi- 
 bility to him against whom the balance shall be found to lie in the as- 
 sessment of damages."' 
 
 Under this rule where both parties are negligent the damages should 
 be diminished in proportion to the plaintiff's negligence. Under the 
 Georgia code if the injury was primairly due to the negligence of the 
 defendant the right of the plaintiff is not defeated even though but for 
 the concurring negligence of the plaintiff the injury might not have 
 happened."* So in Florida contributory negligence diminishes the 
 damages rather than being an absolute bar to recovery."' 
 
 § 1004. Culpable negligence by either party.'" — "Where it can be 
 shown that an injury would not have happened but for the culpable 
 negligence of the person injured, concurring with that of the other 
 party, no recovery of damages for the injury can be had." But this 
 rule is subject to the qualification, that "a party may be negligent in 
 exposing himself or his property to danger, so that, but for such neg- 
 ligence an injury would not have happened, yet this will not excuse the 
 subsequent negligence of another party, in inflicting injury upon him 
 when so exposed." Again, "where the negligence of one person has 
 prepared a risk for another and that other, proceeding in the discharge 
 
 «*See also Wilds v. Hudson, etc., R., 24 N. Y. 430, 432. 
 'sCom. on Negligence, 2d ed., sec. 268. 
 ««See Mason, etc., R., v. Davis, 18 Ga. 679, 686. 
 8'See McGee v. Young, 132 Ga. 606, 64 S. E. 689. 
 «80'Dowd V. Newnham, 13 Ga. App. 220; 80 S. E. 36. 
 
 89 Atlantic Coast R. Co. v. Weir, 63 Fla. 69, 74; 58 So. 641, 41 h. R. A. N. S. 
 307; Ann. Cas. 1914 A. 126. 
 ToThis subject discussed Chaps. XXXII, XXXIII. 
 
 661 
 
§ I005 ACTIONABLE NEGLIGENCE 
 
 of his duty or in the course of his business, accepts the risk and is 
 hurt in consequence of so doing, the question whether he is guilty of 
 contributory negligence in so doing is almost always a question of fact 
 for the jury."" 
 
 § 1005. Gross negligence by either party. — In this regard, the 
 Supreme Court of Georgia, in Central R., Etc, v. Smith,''^ speaking 
 through Chief Justice Bleckly, say : 
 
 "A person while grossly negligent himself, has no legal right 
 to count on due diUgence by others, but is bound to anticipate 
 that others, like he has done, may fail in diligence, and must 
 guard not only against negligence on their part, which he might 
 discover in time to avoid the consequences, but also against the 
 ordinary danger of there being negligence which he might not 
 discover until too late." (Quoted by Thompson in section 
 190)." 
 
 The question of gross negligence is for the jury.''* 
 
 § 1006. Contributory negligence no bar in an action for reckless, 
 
 or wilful, or wanton negligence by defendant. — This feature will be 
 
 hereafter considered.'"' 
 Dr. Thompson says :" 
 
 "Contributory negligence is no defence to an action for 
 damages for an injury which was reckless, willful, or wanton, 
 however great such" (contributory) "negligence may have been. 
 * * * Even a trespasser may recover for a willful, unlawful, 
 wanton or malicious injury inflicted upon him. The reason is 
 thatWe fact that one person is trespassing" upon the property or 
 against the person of another, authorizes that other" (the suf- 
 
 'iThompson, Corn, on Negligence, 2d ed., sees. 178, 44s ; Lawrence v. Fitch- 
 burg, etc., Ry., 201 Mass. 489. 87 N. E. 898; State v. Campbell, 82 Conn. 671, 74 
 Atl. Repr. 927. 
 
 7278 Ga. 694, 700. 
 
 T'See also Shearman & Redf. on Negligence, Sth ed., sec. 92; Banks v. Bra- 
 man, 188 Mass. 367, 74 N. E. S94; Stretton v. N. Y. & H. R., 198 Mass. S73, 84 
 N. E. 799- 
 
 '*Weiskopf V. Ritter, 97 S. W. Repr. 1120 (Ky.). 
 
 TsSee § 1522. 
 
 7«Com. on Negligence, 2d ed., sec. 206. 
 
 '^See § 1488, on Trespass. 
 
 662 
 
CONTRIBUTORY N1SGI,1GENCE § IO06 
 
 ferer)^ "to use only so much force as is necessary to prevent the 
 trespa'ss."^' 
 
 Another way of stating the reason for the rule might be that the 
 offence, being malum in se is criminal," or quasi criminal,'" and being 
 of that nature, the rule of the criminal law obtains, namely, that the 
 doctrine of contributory negligence has no application to cases growing 
 out of crimes.'^ 
 
 At section 207 Dr. Thompson'^ says : 
 
 "The books justify the conclusion that mere carelessness or 
 heedlessness may be so gross and reckless as to rise to the grade 
 of wilfulness or wantonness, such as will exclude the defence of 
 contributory negligence." 
 
 For example, when the operator of a motor vehicle sees a person in 
 the road in front of him exposed to imminent danger, under circum- 
 stances where he could easily prevent injury to such person by the 
 usual precautions, and yet he utterly fails to exercise them, "such mis- 
 conduct, it has been well held, accruing after the" operator "becomes 
 aware of the danger to which the person is exposed, rises to the grade 
 of wanton or reckless conduct and renders immaterial the inquiry as to 
 the contributory negligence of the person in so exposing himself ."'' 
 
 In section 208, Dr. Thompson'* says : 
 
 "On this is formulated the doctrine that where the injury for 
 which the action is brought, is not mere inadvertence, but an 
 aggressive wrong — an unlawful invasion of the plaintiff's right 
 of personal liberty or security, the doctrine of contributory negli- 
 
 ^'See also Ibid., sees. 247, 448. 
 
 '•Com. V. Pierce, 138 Mass. 165, I7S- 
 
 80 Aiken v. Holyoke St. R., 184 Mass. 269, 68 N. E. 238. 
 
 '^Wharton on Homicide, sec. 482. 
 
 '^See § 1460 et seq., on Criminal negligence. 
 
 See to same effect. Shearman & Redf. on Negligence, Sth ed., sec. 64. 
 
 8^Com. on Negligence, 2d ed. 
 
 '^Milwaukee, etc., R. v. Kellogg, 94 U. S. 469, 474; Aiken v. Holyoke St. 
 Ry., 184 Mass. 269, 68 N. E. 238; Georgia Pacific R. v. L^ee, 92 Ala. 262, 269; Belk 
 V. People, 125 111. 584, 17 N. E. 744; Martin v. Wood, 23 N. Y. St. Repr. 457; 
 Banks v. Braman, 188 Mass. 367, 74 N. E. 594; McCann v. Muldoon, gi S. C. 
 523, 74 S. E. 386; Ann. Cas. 1914 A. 139. 
 
 '*Com. on Negligence, 2d ed. 
 
 663 
 
§ I006 ACTIONABLE NEGUGENCE 
 
 gence has no application." The reason being "that the act was 
 in the nature of a positive, aggressive wrong, a trespass or a 
 nuisance." 
 
 And in another place*" the same authority tersely declares : 
 
 "It should be added that the doctrine of contributory negli- 
 gence has no application to willful and malicious injuries. * * * 
 For example, contributory negligence is no defence to an action 
 for assault and battery."*^ 
 
 Nor will negligence ever be imputed, whether contributory or other- 
 wise, to a person non sui juris when the initial negligence was of a gross 
 or wanton and wilful character.*' 
 
 In Banks v. Braman,** Chief Justice Knowlton, speaking of wanton 
 negligence, says: 
 
 "The ground on which it is held that when an act of the de- 
 fendant shows an injury inflicted in this way, the plaintiff need 
 introduce no affirmative evidence of due care,^^ is that such a 
 wrong is a cause so independent of previous conduct of the 
 plaintiff, which, in a general sense, may fall short of due care, 
 that this previous conduct cannot be considered a directly con- 
 tributing cause of the injury, and, in reference to such injury, 
 the plaintiff, without introducing evidence, is assumed to be in 
 a position to claim his rights and to have compensation. So far 
 as the cause of his injury is concerned, he is in the position of 
 one who exercises due care." 
 
 In Georgia Pacific R. v. Lee,°° quoted in other places in this volume, 
 Mr. Justice McClelland says in this regard: 
 
 "The theory of contributory negligence as a defense, is that 
 conjointly with negligence on the part of defendant, it conduces 
 to the damnifying result, and defeats any action, the gravamen 
 of which is such negligence. If defendant's conduct is not 
 
 86Sec. 247. 
 ««Post sec. 1490. 
 
 8'Thompson, Com. on Negligence, 2d ed., sec. 299, citing Hartfield v. Roper, 
 21 Wend. (N. Y.), 615, 622. 
 88188 Mass. 367, 370, 74 >f. E. 594. 
 88Italics by the author of this book. 
 8092 Ala. 262, 270. 
 
 664 
 
CONTRIBUTORY NEGLIGENCE § IOO7 
 
 merely negligent, but worse, there is nothing for plaintiff's want 
 of care to contribute to— there is no lack of mere prudence and 
 diligence of like kind on the part of defendant to conjointly con- 
 stitute the efficient cause. Mere negligence on the one hand 
 cannot be said to aid willfulness on the other, and hence such 
 negligence of a plaintiff is no defense against the consequences 
 of the willfulness of the defendant.""^ 
 
 § 1007. Where one voluntarily incurs danger.— This subject usu- 
 ally finds expression in the maxim volenti non fit injuria, which serves 
 to announce the principle that where one either by his own deliberate 
 act, or recklessly and without adequate necessity, encounters a known 
 danger, and "takes his chance" of escaping injury therefrom and is in- 
 jured, he cannot recover damages from the person who caused the 
 injury.'^ 
 
 But the rule cannot be carried too far, for there is rarely an act of 
 even the most commonplace character that does not involve a risk of 
 some sort. Dr. Thompson summarizes the occasions upon which it may 
 apply as follows : 
 
 "The true meaning of the rule is, that in order to impute con- 
 tributory negligence to a person exposing himself to a danger, 
 he must (i)' knowingly or with negligent ignorance, '{2) volun- 
 tarily, and (3) unnecessarily, expose himself to it."°^ 
 
 "Contributory negligence will not in all cases be imputed to a per- 
 son who receives an injury from a danger which might have been seen 
 and avoided if seen, because the nature of his duties, or the surround- 
 ing circumstances may be such as to distract his attention to other ob- 
 jects."=* 
 
 Two important classes of individuals are to be exempted from the 
 operation of the general rule and placed within the sphere of the ex- 
 ceptions thereto, namely, (a) persons who incur danger in the streets 
 
 ^^See the following motor vehicle cases : Curley v. Elec. Vehicle Co., 68 N. Y. 
 App. Div. 18, 74 N. Y. S. .35; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 
 338 ; Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247 ; Lawrence v, Fitchburg, 
 etc., Ry., 201 Mass. 489, 87 N. E. 898; State v. Campbell, 82 Conn. 671, 74 Atl. 
 Repr. 927. 
 
 '^Thompson, Com. on Negligence, 2d ed., sees. 185, 186. 
 
 s^Ibid. sec. 188. 
 
 «*Ibid. sec. 189. 
 
 665 
 
§ I008 ACTI0NABI<B NSGUGBNCE 
 
 in discharge of duty; (b) Persons engaged in an effort to save life. 
 Both are mentioned elsewhere."' 
 
 The following cases, however, are in supplement of what has been al- 
 ready said. 
 
 § 1008. Danger incurred in the discharge of duty"" — Street La- 
 borers. — In Stewart v. Harvard College,"' Mr. Justice Chapman says : 
 
 "Any man who is in a place where he has a right to be, and 
 engaged in a lawful occupation, can maintain an action against 
 a stranger who does him an injury carelessly." 
 
 In Anselment v. Daniel,"* plaintiff was employed in paving a city 
 street when he was run over in "broad day light" by defendant's horse- 
 drawn vehicle. Mr. Justice Bischoff, writing the opinion of the Su- 
 preme Court at general term says, with regard to defendant's claim that 
 plaintiff was guilty of contributory negligence in not getting out of the 
 way: 
 
 "Plaintiff was lawfully and necessarily in the roadway en- 
 gaged in the performance of duty. He was absolutely safe from 
 all risk of injury by passing vehicles, excepting only such as 
 would arise from the negligence of the drivers of those vehicles 
 — a risk which was avoidable by the drivers with the exercise of 
 ordinary care. Upon their exercise of such care, plaintiff had a 
 right to rely. He was not obliged to anticipate their wanton and 
 reckless conduct. * * * Plaintiff's occupation imperatively 
 demanded his attention, and the use of his eyes. * * * 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 drivers of vehicles incessantly passing on a public 
 thoroughfare, means either that he must expose himself and his 
 fellow-workmen to the risk of injury from inattentive perform- 
 ance of his work, or that he must abandon his work altogether. 
 We are unable to see wherein plaintiff was at fault and, without 
 fault, he cannot be said to be guilty of contributory negligence." 
 
 »5See § 1342, 1 104. 
 
 «6See the following motor vehicle cases: Caesar v. Fifth Ave. Stage Co., 4S 
 N. Y. Misc. 331, 90 N. Y. S. 359; Dudley v. Kingsbury, 85 N. E. 76, I99 Mass. 
 258; Kingv, Green, 94 Pac. Repr. ^^^, 7 Cal. App. 473; Suell v. Jones, 49 Wash. 
 582, 96 P. 4; Case V. Clark, 83 Conn. 183, 76 Atl. Repr. 518. As to street laborers, 
 see further, post, § 1342. 
 
 9»94 Mass 58, 67. 
 
 8823 N. Y. Supp. 87s, 4 Misc. 144. 
 
 666 
 
CONTRIBUTORY NEGLIGENCE § IO08A 
 
 § 1008A. Intoxication of driver. — ^^The intoxication of the driver is 
 not contributory negligence unless it was contributing cause of the 
 accident." 
 
 § 1008B. Sitting on floor of car.— The fact that plaintiff was sit- 
 ting on the floor of his car at the time of the collision will not bar 
 recovery unless he thereby cooperated in causing the injury.^"" 
 
 § 1009. Not negligent to fail to anticipate another's negligence 
 under all circumstances. — Dr. Thompson^ makes this remark : "Both 
 reason and authority show that under many situations, a person will not 
 be chargeable with contributory negligence for not anticipating that 
 another person will violate the law in a given particular, and for not 
 providing against such possible violations of it."^*' 
 
 The plaintiff has a right to assume that the defendant will observe 
 a city ordinance requiring him to keep on the right side of the street 
 except that he cannot rely on this persumption where he has an oppor- 
 tunity to learn the contrary.^ 
 
 It is not true that either party to an accident has a right to assume 
 that the other party will perform whatever duty was required of him 
 and use whatever precautions are necessary to avoid an accident but 
 both parties are bound to use all reasonable precautions and the plain- 
 tiff must do what he can to avoid an accident whatever the plaintiff 
 may do.^ 
 
 § loio. If defendant has thrown plaintiff off his guard. — ^A re- 
 laxation of the stringency of the rule of constant caution, occurs in cases 
 where the act of the defendant has thrown the plaintiff off his guard, 
 and gave him reason to believe that vigilance was not needed. The 
 lack of usual alertness under such circumstances is no bar to the plain- 
 tiff's remedy for injuries sustained.* 
 
 ssPittsburgh C. C, etc., Ry. Co. v. Kephert, Ind., 112 N. E. 251. 
 
 looMcClurg V. Pennsylvania Taximeter Cab Co., (Penn. 1916), 97 Atl. 694. 
 
 iCom. on Negligence, 2d ed., sec. 191. 
 
 i»See §§ 422, 908. See also Ibid. sec. 1327; Nadeau v. Sawyer, 73 N. H. 70; 
 59 Atl. 369; Lorenz v. Tisdale, 127 N. Y. App. Div. 433, in N. Y. S. I73- 
 
 ^Elgin Dairy Co. v. Shepherd (Ind. 1915), 103 N. E. 433- 
 
 ^Elgin Dairy Co. v. Shepherd (Ind. 191S), 103 N. E. 433- 
 
 ^Thompson, Com. on Negligence, 2d ed., sec. 192; Shearman & Redf. on 
 Negligence, 5th ed., sec. 91. 
 
 667 
 
§ lOII ACTIONABLE N^GUGENCe 
 
 § loii. Application of the foregoing principles. — Summing up 
 the points presented in the preceding paragraphs, Dr. Thompson says :^ 
 
 "Foot passengers, it is well said, have equal rights in the use 
 of the highway with those who drive or ride ; and one is not 
 guilty of negligence who fails to anticipate and take proper pre- 
 cautions against injury by persons riding or driving at an un- 
 usual rate of speed. The question of the negligence of the per- 
 son for whose injury an action is brought, where the injury was 
 received in a collision or other accident while driving, not due 
 to an obstruction or defect in the highway, almost always pre- 
 sents a question for the jury, though where the act of the person 
 injured was plainly reckless and foolhardy, and this reckless- 
 ness plainly caused the injury, the court may so decide." 
 
 § IOI2. Situations of inconvenience rather than of immediate 
 danger. — Conditions presenting situations of inconvenience rather than 
 of danger, are apt to confront the motorist more often in the form of 
 defects or obstructions in the highway." 
 
 Dr. Thompson^ reviews this subject as follows: 
 
 "If an inconvenience is so great that it is reasonable to get 
 rid of it by an act not obviously dangerous, and executed with- 
 out carelessness, the person causing the inconvenience by his 
 negligence will be liable for any injury that may result from 
 an attempt to avoid such inconvenience. On the other hand, if 
 a person, without fault on his part, gets into a situation of peril, 
 created by the negligence of another, and thereafter, in endeav- 
 oring to extricate himself from such situation, acts rashly and 
 imprudently, where the apparent danger was not immediate, 
 and there was time for deliberation, his contributory negligence, 
 subsequent in point of time to the negligence of the other party, 
 and nearer the accident, will be the proximate cause of his hurt, 
 and he will not be allowed to recover damages. * * * But 
 whether in such a case the plaintiff exercised ordinary care, is 
 generally a question of fact for the jury." 
 
 § 1013. Plantiff's negligence enhancing injury.' — "An act or 
 omission which merely increases or adds to the extent of the loss will 
 
 "Com. on Negligence, 2d ed., sec. 448. 
 *See Highways, sec. 285, et seq. 
 ^Com. on Negligence, 2d ed., sec. 200. 
 
 sSee § 1760, Measure of damages, and § 1505, Criminal negligence, and § 
 1063, Actionable negligence (aggravating disease). 
 
 668 
 
CONTRIBUTORY NEGLIGBNCfi § IOI4 
 
 not have the effect of defeating the action, though it may have the effect 
 of diminishing the damages which can be recovered."' 
 
 In Gould V. McKenna," Chief Justice Agnew states the doctrine as 
 follows : 
 
 "The contributory negligence which prevents recovery for an 
 injury,^ is that which cooperates in causing the injury — some act 
 or omission concurring with the act or omission of the other 
 party to produce the injury (not the loss merely), and without 
 which the injury would not have happened. A negligence which 
 has no operation in causing the injury, but which merely, adds 
 to the damage resulting, is no bar to the action, though it will 
 detract from the damages as a whole." 
 
 In such a case, it is for the jury to apportion the damages between 
 the parties as best they can under the evidence.^^ 
 
 But it is no defence in an action for injuries sustained through a 
 negligent act, for defendant to show that the injured person was so 
 unskillfuUy treated as to augment the injury or hasten his death, or 
 that, by proper treatment, his life would have been saved, or his injury 
 diminished.^^ 
 
 § 1014. Burden of proof. — A general rule of evidence casts the 
 burden of proof upon the party who maintains the affirmative of the 
 issue ; in other words, "he who asserts a fact necessary to be shown to 
 sustain an action or bar a recovery, must prove its existence." The gen- 
 eral rule, as already shown, is that contributory negligence on the part of 
 the plaintiff will defeat his action. It would seem, therefore, that con- 
 tributory negligence was a matter of affirmative defence and that the 
 burden would be on the defendant to prove it. "Yet it is held in sev- 
 eral of the states that in order to make out a prime, facie case the plain- 
 tiff must not only prove negligence on the part of the defendant, but he 
 must also prove that he was in the exercise of due care in respect to 
 the occurrence from which the injury arose."^' 
 
 'Thompson, Com. on Negligence, 2d ed., sees. 201, 453; Shearman & Redf. 
 on Negligence, 5th ed., sec. 95. 
 
 i"86 Pa. St. 297, 302. 
 
 iiThompson, Com. on Negligence, 2d ed., sec. 241^ 
 
 i^Shearman & Redf. on Negligence, Sth ed., sec. 31. 
 
 i^Thompson, Com. on Negligence, 2d ed., sec. 364; Wentworth v. Waterbury 
 (Vt. 1916) ; 96 Atl. 334, holding that burden is on plaintiflF. 
 
 669 
 
§ IOI4 ACTIONABLE NBGUGSNCS 
 
 Probably no rule affecting the trial of causes has excited more dis- 
 cussion among text writers, or greater diversity of judicial decision, 
 than that now before us. It is not within the scope of this book to 
 ponder the question at much length, for in each jurisdiction the prac- 
 titioner is familiar with the attitude of his own courts on the subject. 
 
 In Shearman & Redfield, on Negligence," it is said : 
 
 "The question as to which party bears the burden of proof on 
 the issue of contributory negligence, has been the subject of 
 many conflicting decisions ; and the courts are still divided on it. 
 Practically all the courts agree that the fact of contributory 
 negligence is to be taken into account, no matter how it appears, 
 whether by affirmative evidence on the part of the defendant, or 
 by inference from the evidence on the part of the plaintiff. It 
 is quite immaterial who proves the fact, so long as it is proved. 
 This is a just rule, and may be considered universally settled. 
 And on the other hand, it is agreed that the plaintiff need not 
 produce direct evidence of his having used due care, if the fact 
 sufficiently appears upon the whole case." 
 
 The authors quoted, list the states in two general groups, as follows : 
 (sec. 107) Those states in which the burden is on the plaintiff to 
 prove that he was free from contributory negligence, are: "Maine, 
 Massachusetts, Connecticut, New York, Indiana, Michigan, Illinois, 
 Iowa, Mississippi, Vermont and Louisiana," which will hereafter be 
 spoken of as within the "Massachusetts Rule." 
 
 (sec. 108) Those jurisdictions wherein the burden of proof as to 
 plaintiff's contributory negligence rests upon the defendant and "must 
 therefore be established by a clear preponderance of proof," namely: 
 "In the Supreme Court of the United States, and in Alabama, Arizona, 
 Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, 
 Kansas, Kentucky, Maryland, Minnesota, Missouri, Montana, Ne- 
 braska, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, 
 Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, 
 Virginia, Washington, West Virginia, and Wisconsin," which will be 
 hereafter spoken of as within the "general rule." 
 Dr. Thompson^^ makes his classification on the same basis, but differs 
 
 i*Sth ed., sec. 106. 
 
 isCom. on Negligence, 2d ed., sees. 365, 366. 
 
 670 
 
CONTRIBUTORY NEGUG^NCB § IOI5 
 
 in some instances concerning the position of particular states. How- 
 ever, both authorities agree in placing the Federal courts in the one 
 group, and Massachusetts and New York in the other. An additional 
 fact to be noted is the considerable majority carried by the class falling 
 within the "general rule." 
 
 § 1015. Point of agreement in all jurisdictions. — ^As an illustra- 
 tion of the truth of the remark of Shearman & Redfield in the section 
 (106) quoted, that "practically, all the courts agree that the fact of 
 contributory negligence is to be taken into account no matter how it 
 appears," the subjoined from a Federal case and another from a New 
 York case, will serve as a demonstration. It will be borne in mind that 
 the former is in the majority class and the latter in the minority. 
 
 In Washington v. Harmon's Admr.,^^ Chief Justice Fuller, writing 
 the opinion of the Supreme Court, in commenting on the contention 
 that the contributory negligence must always be shown by the defend- 
 ant, says : 
 
 "The court did not say that if such negligence were estab- 
 lished by the plaintiff's evidence, the defendant could have no 
 benefit from it, nor that the fact could only be made effectual bv 
 a preponderance of evidence, coming exclusively from the party 
 on whom rested the burden of proof. It is is not improbable 
 that the charge was so given by the court from an apprehension 
 that the jury might without it, be misled to believe that it was 
 incumbent on the plaintiff to show affirmatively the absence of 
 such negligence on his part, and that if there was no proof, or 
 insufficient proof, on the subject, there was a fatal defect in his 
 case." 
 
 In Johnson v. Hudson River R.," Mr. Justice Denio, in writing the 
 opinion of the court of appeals, affirming the decision below, says : 
 
 "But I am of opinion that it is not a rule of law of universal 
 application that the plaintiff must prove affirmatively that his 
 own conduct on the occasion of the injury was cautious and 
 prudent. 'The omis prohandi in this, as in most other cases, de- 
 pends upon the position of the affair as it stands upon the un- 
 disputed facts. 'Thus if a carriage be driven furiously upon a 
 crowded thoroughfaire, and a person is run over, he would not 
 
 "147 U. S. 571, 13 S. Ct. 557- 
 
 "20 N. Y. 69, affirming 6 Duer. 646. 
 
 671 
 
§ I0l6 ACTIONABLE NEGUGENCfi 
 
 be obliged to prove that he was cautious and attentive, and he 
 might recover though there were no witnesses of his actual con- 
 duct. The natural instinct of self-preservation would stand in 
 the place of positive evidence, and the dangerous tendency of 
 the defendant's conduct would create so strong a probability 
 that the injury happened through his fault that no other evi- 
 dence would be required." 
 
 Judge Denio in this connection, discusses at length the doctrine of 
 the burden of proof in negligence cases and the subject of contributory 
 negligence, reviewing two Massachusetts cases which he speaks of as 
 being "apparently, if not really, in hostility to the conclusion" at which 
 he arrives." 
 
 § 1016. "Shifting" of the burden of proof.^^ — ^A confusing idea 
 which has found very general expression is that at a certain stage of 
 the trial, the burden of proof "shifts" from one side to the other. At 
 another stage there may be a shift back to where it was in the outset. 
 No stretch of the imagination is required to fancy it shuttle-cocking 
 from side to side, as the evidence preponderates one way or the other. 
 But who is to decide from lime to time as the trial progresses,whether 
 the evidence preponderates either way? The decision as to the pre- 
 ponderance in favor of either party, is for the jury by their verdict, at 
 the end of the trial. One litigant may have introduced evidence which 
 in the contemplation of law, is suificient to make a prima facie case. 
 That in no sense relives him of the onus of maintaining it. It does re- 
 quire of the other party the introduction of evidence to explain it away, 
 but the onus probandi as to the issue itself, that is to say, that the proof 
 shall preponderate in his favor, remains at all times with the party af- 
 firming that issue, whether he be in prosecution or defence. 
 
 "The true rule, says Thompson,^" "is that the budren of proof never 
 shifts so long as the evidence is directed to the same proposition of 
 fact." This leaves the parties at all times each with his own burden — 
 the plaintiff to maintain his prima facie case, and the defendant to main- 
 tain his affirmative defenses. As to whether the explanations or af- 
 
 isThe two cases mentioned are Lane v. Crombie, 29 Mass. 177, and Adams 
 V. Carlisle, 38 Mass. 146. See Simeone v. Lindsay, 65 Atl. Repr. 778 (Del.), 
 1907 (No. 5348) ; also Klein v. Burleson, 138 App. D. 405, 122 N. Y. Supp. 
 
 7S2- 
 i»See §§ 1543, 1652, i6ss, Negligence— burden of proof. 
 z»Com. on Negligence, 2d ed., sec. 307. 
 
 672 
 
CONTRIBUTORY NSGIvIGENCfi § IOI7 
 
 firmative propositions of the one preponderate over those of the other, 
 lies with the jury at the finish. 
 
 The rule is stated in Texas that the burden of proof to establish 
 contributory negligence is ordinarily upon the defendant, but where 
 the pleadings of the plaintiff or his evidence show him to be negligent 
 then the burden of proof is upon him to show facts from which his 
 due care may appear.^^ 
 
 § 1017. Burden of proving contributory negligence in states fol- 
 lowing the "general" rule.^^ — In the jurisdictions in which contribu- 
 tory negligence is an affirmative defense, "the rule prevails that the 
 negligence of a person killed or injured, contributing to the death or 
 injury, is a matter of defense which the defendant must aver and 
 prove."^* 
 
 The doctrine is clearly enunicated by the Supreme Court of Minne- 
 sota, in the case of Hocum v. Wietherick,^* in an opinion written by 
 Mr. Justice Cornell. The court say of the contention of the defend- 
 ant: 
 
 "It rests upon the legal proposition that the burden of proof 
 was upon the plaintiff to show affirmatively that he was free 
 from any contributory negligence on his part, and that hence 
 the benefit of any doubt on this question must be given to the 
 defendants. There is no little conflict of authority on thus sub- 
 ject in the opinions and decisions of the different courts. * * * 
 but the better and more logical rule, it seems to us, regards 
 matter of this character as strictly defensive, the onus of prov- 
 ing which rests upon the defendant; and, though it may be 
 proved under general denial in the answer, * * * and will 
 undoubtedly, if it appear from the plaintiff's evidence, defeat 
 
 2iTexas Traction Co. v. Wiley, Tex. Civ. App. ; 164 S. W. 1028. 
 
 22In some of the states the placing upon the defendant the burden of proving 
 contributory negligence is a matter of statute, and in others, ft is one of 
 judicial determination. 
 
 23Thompson, Com. on Negligence, 2d ed., sec. 366; Millsaps v. Brogdon, 97 
 Ark. 469, 134 S. W. 632, 32 L. R. A. N. S. 1177; Farnsworth v. Tampa Electric 
 Co., 62 Fla. 166, S7 So. 233 ; Bidwell v. Los Angeles, etc., Ry. Co., 169 Cal. 780, 
 148 Pac. 197 ; Day v. Duluth St. Ry. Co., 121 Minn. 445, 141 N. W. 795 1 Byerley 
 V. Metropolitan St. Ry. Co., 172 Mo. App. 470, 158 S. W. 413; Chappell v. United 
 Rys. Co., 174 Mo. App. 126, 156 S. W. 819; Graham v. Sly, i77 Mo. App. .348; 
 164 S. W. 136; Cloherty v. Griffiths, 82 Wash. 634. 
 
 ''*22 Minn. 152, 155. 
 
 43 
 
§ IOl8 ACTION-ABLS NEGUG^NCB 
 
 a recovery, yet it is because it negatives the affirmative fact 
 which plain'tiif must establish to make out his case, that the 
 sole proximate cause of the alleged injury is the culpable neg- 
 ligence of the defendant. But when the negligent act of the 
 defendant, and the injury, the sufficiency of the former to pro- 
 duce the latter, and their relation to each other as proximate 
 cause and effect, are the sole facts averred and admitted by the 
 pleadings, or proved on the trial, a prima facie case is estab- 
 lished. To require the plaintiff, in addition, to negative a pos- 
 sible defense by an averment in the complaint of his freedom 
 from negligence would be to disregard a well-settled, elemen- 
 tary rule of pleading. If not necessary to be pleaded, it log- 
 ically follows that it need not be proved." 
 
 The jury is properly instructed that if there is no evidence upon the 
 question of contributory negligence or if the evidence upon that sub- 
 ject is equally balanced they should find that the plaintiff was free 
 from contributory negligence.^' ' 
 
 The presumption is that one approaching a railroad crossing has 
 looked and listened and the burden of showing contributory negligence 
 is on the defendant.^' 
 
 § 1018. "Massachusetts rule" concerning burden of proof in the 
 matter of contributory negligence. — Dr. Thompson thus expresses the 
 doctrine as it is held in the minority of the states to which we have 
 alluded : 
 
 "In order to make it a prima facie case, the burden rests upon 
 the plaintiff of proving, and in some of them of alleging and 
 proving, that the plaintiff or the person killed or injured, or, in 
 some jurisdictions, in case the person killed or injured was a 
 young child, that its parent, guardian or custodian — was not 
 guilty of negligence contributing to the injury."^' 
 
 Probably in no jurisdiction has this view of the subject acquired a 
 firmer hold than in Massachusetts. It is to be remembered that in 
 this state, in actions under the statute where death occurs as the result 
 of a negligent act,^' it must appear as part of the basis of the action 
 
 26Wellington v. Reynolds, 177 Ind. 49 ; 97 N. E. ISS, 2 N. C. C. A. 300. 
 28Emens v. Lehigh Valley R. Co. (Dist. Ct. N. Y.), 223 Fed. 810. 
 s'Com. on Negligence, 2d ed., sec. 365. 
 28See § IS4S, where the statute is quoted. 
 Gibbs v. Dayten, 166 Mich. 263, 131 N. W. 544- 
 
 674 
 
CONTRIBUTORY N^GLIGHNCE § IOI8 
 
 that decedent was "in the exercise of due care" at the time the injury 
 was received. 
 
 The following references go to the application of the doctrine in 
 general. 
 
 The general principles lying at the foundation of the trial of actions 
 for the recovery of damages for personal injuries under the "Massa- 
 chusetts" doctrine, and the fundamental rules in regard thereto, are 
 thus set out by Mr. Justice Colt, in Gaynor v. Old Colony, Etc., R. :" 
 
 "It is for the plaintiff by affirmative evidence, to establish 
 to the satisfaction of the jury, in cases of this description, his 
 own freedom from negligence contributing to the injury of 
 which he complains. Courts must take notice of that which 
 is a matter of common knowledge and experience, and when the 
 plaintiff's case fails to disclose the exercise of ordinary care, as 
 judged of in the light of such knowledge and experience, he 
 shows no right of recovery. Ordinarily, however, it is to be 
 settled as a question of fact, in each case as it arises, upon a 
 consideration of all the circumstances disclosed, in connection 
 with the ordinary conduct and motives of men, applying as the 
 measure of ordinary care the rule that it must be such care as 
 men of common prudence usually exercise in positions of like 
 ■exposure and danger. When the circumstances under which 
 the plaintiff acts are complicated, and the general knowledge 
 and experience of men do not at once condemn his conduct as 
 careless, it is plainly to be submitted to the jury. What is or- 
 dinary care in such cases, even though the facts are undisputed, 
 is peculiarly a question of fact, to be determined by the jury 
 under proper instructions. It is the judgment and experience 
 of the jury, and not of the judge which is to be appealed to. 
 The refusal of the judge to withdraw the case from the jury 
 cannot in any case be construed as an indication that in his 
 opinion the jury ought to find in the plaintiff's favor upon this 
 question. On the contrary, it is his duty to submit it to the 
 jury, if there is any evidence to justify a finding, although in 
 his opinion its preponderance should be against the plaintiff." 
 
 In Wrinn v. Jones'" the court expressly approves the language of the 
 trial judge, in charging the jury, as follows : 
 
 "In order to maintain his action, the plaintiff must prove 
 that the collision was caused solely by the negligence of the de- 
 
 2»ioo Mass. 211. 
 soiii Mass. 360, 362. 
 
 675 
 
§ IOI9 ACTIONABI,!; NEGLIGENCE 
 
 fendant; if any negligence on his part contributed to the re- 
 sult, the plaintiff cannot recover. Whether it was the duty of 
 the plaintiff, under the circumstances in which the parties were 
 placed, to have turned to the left, or refrained from attempting 
 to pass on the right, whether he was driving at unreasonable 
 speed, or did not seasonably check his speed, are questions for 
 the jury to determine, and if the plaintiff was guilty of any 
 negligence in any of these respects, which contributed to the 
 accident, he cannot recover. The mere fact that the defendant 
 was on the left side of the bridge was no evidence of negli- 
 gence. He had a right to travel on all parts of the bridge, the 
 only obligation imposed upon travelers being seasonably to turn 
 to the right upon meeting. If the defendant was driving a 
 heavily loaded wagon and the plaintiff was driving a light team, 
 these were circumstances for the jury to consider as modifying 
 their respective duties." 
 
 Lane v. Crombie'^ was an accident case, wherein plaintiff, a pedes- 
 trian was run over by defendant's four-horse sleigh : 
 
 Per Curiam. "We consider the rule now to be well settled 
 that to enable the plaintiff to recover under such circumstances, 
 he must not only show some negligence, on the part of the de- 
 fendant, but ordinary care and diligence on his own part."^^ 
 
 IV. Imputed Negmgence. 
 
 § 1019. Statement of the American rule. 
 
 1020. Negligence of driver not imputed to occupant of vehicle. 
 
 1021. Negligence of driver not imputed to his guests. 
 
 1022. Passenger for hire. 
 
 1023. Husband and wife. 
 
 1024. Where engaged in common enterprise. 
 
 1025. Validity of statute imputing negligence of driver to certain occupants. 
 
 1026. In actions for death. 
 
 1027. Negligence of another the direct cause of accident. 
 
 1028. Negligence of driver imputed when the sole cause of accident. 
 i02p. Negligence imputed to one suing in representative capacity. 
 
 1030. Doctrine of "identification" — parents. 
 
 1031. In cases of "gross" negligence. 
 
 1032. Application of the principle of imputed negligence in the different juris- 
 
 dictions as to children. 
 
 3129 Mass. 177. 
 
 ^^Citing Smith v. Smith, 2 Pick. (19 Mass.), 621; Harlow v. Hummiston, 6 
 Cowen. 191; Butterfield v. Forrester, 11 East. .61. See also Hartje v. Moxley, 
 23s 111. 164, 85 N. E. 216. 
 
 676 
 
IMPUTED NEGIvIGENCE § IOI9 
 
 1033. Massachusetts rule concerning imputed negligence in cases of chil- 
 
 dren. 
 
 1034. When negligence not imputed in the case of children — general rule. 
 
 1035. Negligence of chauffeur of public auto not imputed. 
 
 I 1019. Statement of the American rule. — There is authority in 
 England and in some states in this country for the doctrine that where 
 injury is caused by the concurrent negligence of the driver of a vehicle 
 and a third person the negligence of the driver is imputed to the oc- 
 cupants and will prevent them from recovering from the third person. 
 
 The doctrine is however now discountenanced by the great weight of 
 American authority and it can now be safely said that the negligence 
 of the driver of a motor vehicle cannot be imputed to occupants of it 
 who have no control over him. 
 
 If they have control over him they may be barred but this is on the 
 theory of their own negligence.^^* 
 
 § 1020. Negligence of driver not imputed to occupant of vehicle. 
 — ^The concurring negligence of the driver of an automobile is not at- 
 tributed to a passenger'^ unless he is the owner or has some control 
 over him.^* 
 
 The passenger is not relieved from the duty of exercising due care. 
 He did not rashly join the driver in testing a danger however when 
 he looked and listened while the driver came almost to a full stop on 
 approaching a railroad crossing, especially where he had a lunatic under 
 his charge at the time.^" 
 
 32aNegligence imputed to passenger in cases of highway defects, see ante, § 304. 
 See further, post, § 1194, et seq. 
 
 ^^Indiana Union Traction Co. v. Love, 180 Ind. 442 ; gg N. E. 1005 ; Campbell 
 V. Walker, Del. Super. Ct. 2 Boyce 41 ; 78 Atl. 601 ; Porter v. Jacksonville Elec- 
 tric Co., 64 Fla. 409, 60 So. 188; Wachsraith v. Baltimore & Ohio R. Co., 233 
 Penn. St. 465, 82 Atl. 755, Ann. Cas. 1913 B. 679, 4 N. C. C. A. 386; contra. Col. 
 borne v. Detroit United Ry. Co., 177 Mich, isg, 143 N. W. 32, 4 N. C. A. 383; 
 Granger v. Farrant, i7g Mich, ig; 146 N. W. 218, 51 L. R. A. N. S. 453. 
 
 2*Hunt V. North Carolina R. Co., N. C. 1916; 87 S. E. 210; Birmingham, 
 etc., Ry. Co. v. Carpenter, Ala. 1916; 6g So. 626; Perkins v. Galloway, Ala. 
 igi6; 69 So. 875; Porter v. Jacksonville Elec. Co., 64 Fla. 409; 59 So. 400, 4 
 N. C. C. A. 379; Horandt v. Central R. Co., 81 N. J. L. 474; 83 Atl. 511. 
 
 36Wachsmith v. Baltimore & Ohio R. Co., 233 Penn. 465, 82 Atl. 755 ; Ann. Cas. 
 igi3 B. 679, 4 N. C. C. A. 386. 
 
 677 
 
§ I02I ACTIONABLE NfiGI,IGENCE 
 
 § 102 1. Negligence of driver not imputed to his guests. — The 
 negligence of a driver cannot be imputed to a guest who has no control 
 over him.^* 
 
 A woman guest in an automobile is not chargeable with contributory 
 negligence in relying on the driver. She is not charged with the duty 
 of looking out for possible dangers.^' 
 
 A young lady passenger in an automobile cannot be charged with 
 the negligence of the driver where her mother is with her as it was not 
 her province to direct the movements of the driver.*' 
 
 The intoxicated condition of the driver of an automobile cannot be 
 negligence imputed to a guest unless he knew of the condition.*' 
 
 § I022. Passenger for hire. — ^The negligence of a driver is not to 
 be imputed to a passenger for hire.*" 
 
 A passenger on a sight-seeing automobile injured in a collision be- 
 tween the automobile and -a street car can sue the street car company 
 and the negligence of the chauffeur of the automobile will not be im- 
 puted to him.*^ The contributory negligence of the chauffeur of a 
 taxicab cannot be imputed to a passenger.*^ 
 
 A passenger on a street car in collision with an automobile can re- 
 cover from the automobilist notwithstanding negligence of the mo- 
 
 ^^Lininger v. San Francisco, etc., R. Co., i8 Cal. App. 411, 123 Pac. 235; 
 Tousley v. Pacific Electric Ry. Co., 166 Cal. 457, i37 Pac. 31, 8 N. C. C. A. 1033 ; 
 Hubbard v. Bartholomew, 163 Iowa 58, 144 N. W. 13, 49 I,. R. A. N. S. 443; 
 Withey v. Fowler Co., 164 Iowa 377, 14s N. W. 923; Corky v. Atchison, T. & 
 S. F. Ry., 90 Kan. 70, 133 Pac. 555, 4 N. C. C. A. 22, 381, 6 N. C. C. A. 306; 
 Turney v. United Rys. Co. of St. Louis, 155 Mo. App. 513, 135 S W. 93; 
 Terwilliger v. Long Island R. Co., 136 N. Y. S. 733, 152 App. D. 168; Toledo Ry. 
 & Light Co. V. Mayers, (Ohio, 1916), 112 N. E. 1014; Hermann v. Rhode Is- 
 land Co., 36 R. I. 447; 90 Atl. 813, where driver is the owner. Wentworth v. 
 Waterbury (Vt. 1916), 96 Atl. 334, overruling Carlisle v. Sheldon, 38 Vt. 440; 
 Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540; Beach v. Seattle, 85, Wash. 
 379; 148 Pac. 39; contra, Kneeshaw v. Detroit United Ry., 169 Mich. 697, 13S 
 N. W. 903; Sampson v. Wilson, Conn. 1916; 96 Atl. 163. 
 
 s^Rogers v. Portland Ry. Light & Power Co., 66 Oregon, 244, 134 Pac. 9. 
 
 ssLatimer v. Anderson County, 95 S. C. 187 ; 78 S. E. 879, 4 N. C. C. A. 23, 
 
 387. 
 
 ^'Pittsburgh, etc., Ry. Co. v. Kephert, Ind.; 112 N. E. 251. 
 
 *oThompson v. Los Angeles & S. D. B. Ry. Co., 169 Cal. 748, 134 Pac. 709; 
 4 N. C. C. A. 379. 
 
 *iMcFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 652, 143 S. W. 884. 
 
 *2Long Island R. Co. v. Darnell, C. C. A. 2d Cir.; 321 Fed. 191. 
 
 678 
 
IMPUTED ni;gi:,igence § 1023 
 
 torman or conductor of the car participating in causing the collision.''^ 
 § 1023. Husband and wife. — ^The negligence of the husband driv- 
 ing a motor vehicle cannot be imputed to the wife riding with him un- 
 less he was her agent in driving.** 
 
 The mere fact that the wife owned the automobile is not sufficient 
 to render unnecessary the pleading of the husband's imputed negU- 
 gence.*° 
 
 § 1024. Where engaged in common enterprise. — ^The only situa- 
 tion where imputed negligence can now arise seems to be where per- 
 sons are together engaged in a common enterprise. Just what con- 
 stitutes a common enterprise, especially where persons seems to be 
 still a vague question on which the authorities are by no means clear 
 or consistent. 
 
 Where two plaintiffs are in an automobile together and they have 
 agreed to share the expenses of the trip the negligence of one is im- 
 puted to the other provided always the negligence was in a matter 
 within the scope of the joint agreement.*' 
 
 Where two men start together on a pleasure ride with two women 
 to show the women the scenery in an automobile belonging to the 
 father of one of them they are engaged in a common enterprise so 
 that the negligence of one is imputed to the others.*^ 
 
 Where a woman is driving with a doctor in his car to see her mother 
 who is ill they may be found engaged in a common enterprise.** 
 
 To impute a driver's negligence to another occupant the relation be- 
 tween them must be something more than host and guest and the mere 
 fact that both have engaged in the drive because of the mutual pleasure 
 to be derived does not alter the situation.*' 
 
 The fact that the plaintiff is riding in an automobile by appointment 
 with the driver to see the town together as his guest does not render 
 
 *3Ward V. International Ry, Co., 306 N. Y. 83 ; 99 N. E. 262, Ann. Cas. 1914 
 A. 1 1 70. 
 
 «Denton v. Missouri K. & T. Ry. Co., 4 N. C. C. A. 381, 133 Pac. 558, 90 Kan. 
 SI ; Louisville v. Zoeller, 155 Ky. 192 ; 4 N. C. C. A. 23 ; Knoxville Ry., etc., v. 
 Vangilder, 132 Tenn. 487; 178 S. W. 1117. 
 
 *'>Byerley v. Metropolitan St. Ry. Co., 172 Mo. App. 470, 158 S. W. 4I3- 
 
 48Beaucage v. Mercer, 206 Mass. 492 ; 92 N. E. 774- 
 
 «Wentworth v. Waterbury (Vt. 1916), 96 Atl. 334. 
 
 *8McLaughlin v. Pittsburgh Rys. Co., (Penn. 1916), 97 Atl. 107. 
 
 «Withey v. Fowler Co., 164 Iowa 377, 14S N. W. 923- 
 
 679 
 
§ 1025 actionable; negligenck 
 
 them so engaged in a common enterprise that his negligence can be 
 imputed to her.*" 
 
 The negUgence of a driver of an automobile cannot be imputed to a 
 passenger unless the driver was the agent of the passenger or they 
 were engaged in a common enterprise.^^ 
 
 A nurse accompanying a doctor to attend a patient was held carried 
 under her contract of employment and entitled to recover for his 
 negligence as they were not engaged in a common enterprise but she 
 was carried by the defendant for hire.^^* 
 
 § 1025. Validity of statute imputing negligence of driver to cer- 
 tain occupants. — A statute-^jroviding that contributory negligence of 
 the "driver of a motor vehicle shall be imputed to the occupants except 
 those paying fare and riding in a motor vehicle regularly used for 
 public hire is unconstitutional. The right of the legislature to impose 
 special duties on the drivers of motor vehicles does not authorize 
 penahzing of people who ride in them by depriving them of a legal 
 right enjoyed by persons riding in any other kind of vehicle. This 
 also discriminates between those paying fare in vehicles regularly used 
 for hire and those not regularly used for hire and denies the equal pro- 
 tection of the laws.°^ 
 
 § 1026. In actions for death. — Where actions for death of a child 
 are by statute brought by both father and mother in which each has 
 a separable half interest the negligence of the father cannot be imputed 
 to the mother when she is not negligent.^' 
 
 The contributory negligence' of the deceased is imputable to his 
 representatives by specific statutory provisions in Massachusetts. (See 
 Chapter L.) 
 
 § 1027. Negligence of another the direct cause of accident. — 
 The plaintiff is not barred by the negligence of the driver of the car 
 in which she was riding as a passenger where the defendant's negli- 
 gence driving another car was the direct cause of the accident." 
 
 soWithey v. Fowler Co., 164 Iowa 377, 145 N. W. 923. 
 
 siLatimer v. Anderson County, 95 S. C. 187; 78 S. E. 879, 4 N. C. C. A. 23, 
 387. 
 
 siaLoftus V. Pelletier, (Mass. 1916), in N. E. 712. 
 
 ^^Birmingham, etc., Ry. Co., v. Carpenter, Ala. 1916; 69 So. 626. 
 
 ssphillips V. Denver City Tramway Co., 53 Colo. 458, 128 Pac. 460; Ann. Cas. 
 191B. B. 13, 29, 7 N. C. C. A. 487. 
 
 5*Hackworth v. Ashby, 165 Ky. 796; 178 S. W. 1074. 
 
 680 
 
IMPUTED NEGUGENCE § 1028 
 
 § 1028. Negligence of driver imputed when the sole cause of 
 accident. — The negligence of the driver of an automobile with whom 
 the plaintiff was riding cannot be impiited to him unless the driver's 
 negligence was the sole cause of the accident.'^ If the negligence of 
 the driver of a car was the sole proximate cause of the accident, the 
 defendant will not be liable in an action by a passenger.^' 
 
 § 1029. Negligence imputed to one suing in representive ca- 
 pacity. — Dr. Thompson thus broadly describes this form of negli- 
 gence : 
 
 "In every action grounded upon an injury to any person, 
 the contributory negligence of the person injured is imputable 
 to the plaintiff so as to prevent a recovery." 
 
 And he cites as "familiar illustrations" the case of a widow, or an 
 administrator suing to recover damages for the death of a person 
 under a statute f and the case of a father suing to recover damages 
 for an injury to his minor child or to his wife. Concluding his de- 
 scription the same writer says: 
 
 "In other language, whenever the plaintiflf derives his cause 
 of action from an injury to a third person, the contributory 
 negligence of such third person is imputed to him, * * * jyg^ 
 as though such third person were suing for his own injury.""^ 
 
 The doctrine is also applied to cases of children, idiots, lunatics, or 
 other persons non sui juris, in visiting upon them the consequences of 
 negligence on the part of the parent or person having charge of them 
 or the lawful control of their movements.^' 
 
 The leading case applying the principle in this country, is Hartfield 
 V. Roper,"" which has given rise to much discussion and to differing 
 opinions. 
 
 "Lake Erie & W. Ry. Co. v. Reed, 57 Ind. App. 65 ; 103 N. E. 127, 4 N. C. C. 
 A. 22. 
 
 "Bagwell V. Southern Ry. Co., 167 N. C. 611; 83 S. E. 814. 
 
 »^See Chapter L, on Actions under the Statute. 
 
 ssThompson, Com. on Negligence, 2d ed., sec. 498 ; Smith v. N. Y. C. & H. R., 
 38 N. Y. Supp. 666, 670; 4 Am. and Eng. Enc. Law, Sec. 38. 
 
 ^"Thompson, Com. on Negligence, 2d ed., sec. 289. 
 
 «»2i Wend. fN. Y.) 615. 
 
 681 
 
§ 1030 ACTIONABLE NUGLIGENCi; 
 
 § 1030. Doctrine of "identification" — Parents. — ^A corollary of 
 the principle of imputed negligence is that of indentiiication. In the 
 English case of Waite v. North-Eastern Ry.'^ the circumstances were 
 that the grandmother who was in charge of the infant plaintiff had 
 been negligent, in consequence of which the child was injured and the 
 grandmother lost her life. Lord Campbell, speaking of the doctrine 
 of identification, says : 
 
 "Under such circumstances, had she survived, she could not 
 have maintained any action against the company ; and we think 
 the infant is so idenMed'^^ with her that the action in his name 
 cannot be mciintained." 
 
 This states the rule of imputed negligence in its extreme. But, as 
 hereafter observed, it has been so modified by "overwhelming" Ameri- 
 can authority, that Shearman & Redfield are led to declare the idea of 
 identification "now exploded."^' 
 
 The negligence of a foster parent in charge of a boy six years old 
 cannot be imputed to the boy.°* 
 
 § 1031. In cases of "gross" negligence. — Neither the doctrine of 
 imputed negligence nor that of identification, has any application to 
 cases of gross negligence, nor to injuries that are wilful or arise from 
 some positive act. "Such an injury," says Mr. Justice Cowen, "is 
 never tolerated, be the negligence on the side of the party injured what 
 it may."" 
 
 § 1032. Application of the principle of imputed negligence in the 
 different jurisdictions, as to children. — In i Shearman & Redf. on 
 Negligence, 5th ed., sec. 74, the doctrine of imputed negligence is 
 spoken of as a "legal fiction,"now obtaining in "New York, Maine, 
 Massachusetts, Delaware, Maryland, Indiana, Minnesota, Kansas and 
 California, although there is an increasing disposition in all these 
 
 ♦See §§ iips, et seq. 
 61EI. B. & El. 719, 725. 
 '^Italics by the author of this book. 
 68Secs. 66 and 77, Negligence, Sth ed.). 
 «*J. F. Darmody Co. v. Reed, (Ind. 1916), iii N. E. 317. 
 s^Hartfield v. Roper, 21 Wend. (N. Y.) 615, 622; Thompson, Com. on Negli- 
 gence, 2d ed., sec. 299. 
 Such is also the English rule stated by Lord Ellenborough. 
 Clay V. Wood, 5 Esp. 44. 
 
 682 
 
IMPUTED NfiGUGENCE § IO33 
 
 states to moderate the stringency of the rule," which these writers 
 denominate the "New York" rule."" 
 
 Continuing the subject (sec. 78), the last mentioned authors remark 
 that the "Vermont rule," so-called "from having been first clearly 
 adjudged," in that state, commends itself "and is abundantly justified 
 by the reasoning of the courts which have adopted it," among which 
 are the Federal courts. They continue : 
 
 "This rule, which has now been adopted in at least twenty 
 states, is that the contributory negligence of a parent, guard- 
 ian, or other person having control of a child is not to be im- 
 puted to the child itself, and is no defense to the child's action; 
 inasmuch as such guardian is not the agent of the child, and the 
 doctrine of identification is a pure fiction." 
 
 Dr. Thompson*^^ agrees with Messrs. Shearman and Redfield in 
 the main, differing only as to Kansas and California. California he 
 places in the latter class, and Kansas he does not classify at all, but 
 at section 296, says that state "is quite liberal in relegating cases of 
 this character to the jury." 
 
 § 1033. Massachusetts rule concernhg imputed negligence in 
 cases of children. — The doctrine as it prevails in Massachusetts, is ex- 
 pressed by Mr. Justice Allen in Gibbons v. AUen,"^ as follows : 
 
 "The child was herself incapable of either negligence or care, 
 and no act of her own could be proof of either. The care or 
 negligence by which she could be affected must have been that 
 of her mother, under whose protection and control she was, and 
 whose care or negligence would be imputed to her." Citing 
 Holly V. Boston Gas Light Co., 8 Gray (74 Mass.) 123; Calla- 
 han V. Bean, 9 Allen (91 Mass.) 401. 
 
 § 1034. When negligence not imputed in the case of children — 
 general rule. — "Where the child is of such tender years as to be in- 
 capable of discerning circumstances of danger, or of exercising any 
 sufficient care for its safety personally, the child cannot be said to be 
 guilty of contributory negligence. * * * If, however, the child is 
 
 BBSee Oldfield v. N. Y. & H. R., 3 E. D. Smith, 103, 106, affirmed 14 N. Y. 
 310. 
 ^°aCom. on Negligence, 2d ed., sees. 292, 293. 
 «'I3S Mass. 333, 335. 
 
 683 
 
§ I035 ACTIONABLB NEGLIGIjNCi; 
 
 old enough to have some perception of danger, and capable of exercis- 
 ing other faculties for its self-preservation, it is held bound to do so," 
 and the rule will apply."" 
 
 Modification of the rule as laid down in Hartfield v. Roper, supra, 
 is found in cases where a child has escaped from the custody of its 
 proper guardian and gotten upon the street, but is doing nothing 
 which would be negligent in an adult, and injury occurs. On this point 
 Dr. Thompson quotes Mr. Justice Hogeboom, in Lannon v. Albany 
 Gas. Co.,°^ as follows : 
 
 "I know of no just or legal principle which when the infant 
 himself is free from negligence, imputes to him the negligence 
 of the parent, when if he were an adult he would escape it. 
 This would be, I think, visiting the sins of the fathers upon the 
 children to an extent not contemplated in the Decalogue, Or in 
 the more imperfect digests of human law."'" 
 
 § 1035. Negligence of chauffeur of public auto not imputed. — 
 
 The negligence of a chauffeur of a public automobile is not imputed 
 to those who hire the machine and simply direct him where they wish 
 to go,'^ 
 
 V. Concurrent Nbgugence. 
 
 § 1036. Definition. 
 
 1037. Where there is apparently more than one cause. 
 
 1038. Concurrent negligence of two persons injuring a third — joint respon- 
 
 sibility. 
 
 1039. Act or omission of a third part)'. 
 
 1040. When an accident and negligence combine to bring about an injury. 
 
 1041. Defendants engaged in common enterprise. 
 
 1042. Servant injured by joint negligence of master and a third person. 
 
 1043. Liabilities of master and chauffeur. 
 
 1044. Passenger injured in collision. 
 
 1045. Pedestrian injured as result of collision. 
 
 1046. Defendants racing injuring pedestrian. 
 
 1047. Horse frightened by various motor vehicles. 
 
 BSThompson, Com. on Negligence, 2d ed., sec. 303; Oldfield v. N. Y. & Har- 
 lem R., 3 E. D. Smith 103, affirmed 14 N. Y. 310. 
 
 See § 1347, et seq., Children; also § 1541, Actions under the statute. 
 
 6946 Barb. 264, 270, affirmed 44 N. Y. 459. 
 
 '■"Thompson, Com. on Negligence, 2d ed., sec. 324. 
 
 fiRoby V. Kansas City So. Ry., 130 La. 880, 58 So. 696, 41 L. R. A. N. S. 
 355. 
 
 684 
 
CONCUERENT NEGLIGENCE § IO36 
 
 1048. Defect in highway and negligent driving. 
 
 1049. Practice limiting effect of evidence. 
 
 1050. Effect of release. 
 
 §, 1036. Definition. — No very close definition of this subject can 
 be satisfactorily framed. A number of well known authors content 
 themselves with illustrations. For immediate purposes the subject will 
 be regarded in the light presented when two or more causes, whether 
 by persons or things, apparently unite to produce the injury complained 
 of. Cases of collision on the highway almsot invariably involve ques- 
 tions of concurrent negligence raised by the pleadings or attempted to 
 be developed in the proof, and it is for the jury to determine them.'^ 
 
 In the case of Schienfeldt v. Norris,''' it is said : 
 
 "By the court. The questions of ordinary care on the part 
 of the plaintiff and negligence on the part of the defendant 
 were rightly submitted to the jury upon the evidence." 
 
 However, if there be no competent evidence poinitng to defendant's 
 negligence, or plaintiff's own case discloses a failure in the exercise of 
 diligence, the judge can decide the case as matter of law.'^* 
 
 § 1037. Where there is apparently more than one cause. — In 
 Aiken v. Holyoke St. Ry." the Supreme Court, by Chief Justice Knowl- 
 toUj^ say : 
 
 "In this commonwealth, as in most other jurisdictions, lia- 
 bility does not depend upon which of different causes contrib- 
 uting to an injury is latest in the time of its origin, but upon 
 which is the direct, active, efficient cause, as distinguished from 
 a remote cause in producing the result." 
 
 In Pollett V. L,ong'° Mr. Justice Grover, say : 
 
 "The rule determining the liability in this class of cases ap- 
 pears to be well settled. The difficulty, when any arises, is in 
 its application to the facts of the particular case. The party 
 
 '^Thompson, Com. on Negligence, 2d ed., sec. 1322. 
 ^'iiS Mass. 17, 19. 
 
 7*Monroe v. Leach, 48 Mass. 274; Sleeper v. Worcester, etc., R., 58 N. H. 
 520 ; Sheehan v. Edgar, 58 N. Y. 631. 
 "184 Mass. 269, 273. 
 7856 N. Y, ?oo, 206, 68 S. E. 238. 
 
 685 
 
§ 1038 ACTION AELB NEGLIGENCE 
 
 is liable for the natural and probable consequences of his wrong- 
 ful act or omission, but not for those which are remote and 
 speculative. The law will not enter upon inquiries as to the 
 latter for the reason that such a degree of certainty cannot be 
 arrived at in respect thereto as to constitute a safe ground for 
 judicial action. It is for this reason that judicial action is based 
 upon the proximate and not the remote cause of events."^' 
 
 § 1038. Concurrent negligence of two persons injuring a third — 
 joint responsibility.'' — "If the concurrent or successive negligence of 
 two persons, combined together, results in an injury to a third person, 
 he may recover damages of either or both, and neither can interpose the 
 defense that the prior or concurrent negligence of the other contributed 
 to the injury."'* 
 
 In Quligan v. Butler'" Mr. Justice Braley observes : 
 
 "In the practical furtherance of justice, it is a principle of 
 the law of torts, that where two or more wrong doers injure 
 another in person or in property by their several acts, all of 
 which are concurrent and contribute to one wrong, but which 
 might have been caused by each, then, if upon the evidence no 
 distinction can be drawn between their acts, they are all jointly 
 or severally liable. Boston & A. RTv. Shanly, 107 Mass. 568, 
 579 ; Munroe v. Carlisle, 176 Mass. 199 ; Corey v. Havener, 182 
 Mass. 250. For convenience joint tort feasors may be joined in 
 one suit, or sued separately, * * * though there could be 
 but one satisfaction of any judgment that might be obtained. 
 Elliott V. Hayden, 104 Mass. 180; McEvoy v. Wright, 137 Mass. 
 207."" 
 
 In Christy v. Elliott'^ the court by Mr. Justice Magruder, say: 
 
 "Where a defendant is guilty of negligence which causesan 
 injury, and the plaintiff is free from negligence contributing 
 thereto, the fact that the negligence of a third jjarty also con- 
 tributed, would not relieve the defendant from liability for his 
 negligence." 
 
 "See also Hoag v. Railroad, 85 Pa. St. 292. 
 
 '8See the following motor vehicle cases ; Corey v. Adams, 182 Mass. 250, 6s 
 N. E. 69 ; Corey v. Havener, 182 Mass. 250, 65 N. E. 6g. 
 '»Thompson, Com. on Negligence, 2d ed., sec 75. 
 80 189 Mass. 287, 289, 75 N. E. 726. 
 siSee § 1028. 
 82216 111. 31, 48, 74 N. E. 1035, 108 Am. St. Rep. 196. 
 
 686 
 
CONCURRENT NEGLIGENCE § IO39 
 
 § 1039. Act or omission of a third party. — This title presents a 
 case where there were two wrongdoers, one only being sued for the in- 
 jury. It is intimately associated with situations referred to under other 
 captions. In Chicago, R. I. & P. R. v. Sutton^^ Mr. Justice Sanborn, 
 who wrote the opinion for the circuit court of appeals, says : 
 
 "One is liable for an injury caused by the concurring neg- 
 ligence of himself and a third party to the same extent as for 
 one caused entirely by his own negligence. It is no defense 
 to a wrongdoer that a third party shared the guilt of the same 
 wrongful act, nor can he escape liability for the damages he 
 has caused on the ground that the wrongful act of a third party 
 contributed to the injury."'* 
 
 But if it be shown that the defendant's negligence would not of it- 
 self have caused the injury except for the independent act of a third 
 person intervening between the negligence and the injury, the plain- 
 tiff cannot recover, and this upon the ground that defendant's act or 
 omission was not the proximate but merely the remote cause of the 
 injury. Chief Justice Bigelow, in Tutein v. Hurley,'^ speaks as fol- 
 lows: 
 
 "The injury to the plaintiff's property was not caused by the 
 act of the defendants in any such sense as to render them liable 
 in this action. The most that can be said is that their act re- 
 motely contributed to the accident. But to support an action, 
 it must appear that the proximate cause of the injury was the 
 misfeasance of the defendants." 
 
 The principle upon which the doctrine rests is thus state by Mr. 
 Justice Colt, in I^ane v. Atlantic Works :*" 
 
 "In actions of this description, the defendant is liable for the 
 natural and probable consequences of his negligent act. The 
 injury must be the direct result of the misconduct charged ; but 
 it will not be considered too remote if, according to the usual 
 experience of mankind, the result ought to have been appre- 
 hended. 
 
 8363 Fed. Repr. 394, 189S. 
 
 **See also City of Aurora v. Hillman, 90 111. 61 ; Burrell v. Uncapher, 117 
 Pa. St. 353, II Atl. 619; J. T. & K. W. R. v. P. L. T. & M., 27 Fla. i, 99, 9 So. 
 661. 
 
 8898 Mass. 211. 
 
 *°iii Mass. 136, 139. 
 
 687 
 
§ I040 ACTIONABLE NUGLIGBNCB 
 
 "The act of a third person, intervening and contributing a 
 condition necessary to the injurious effect of the orginal negli- 
 gence, will not excuse the first wrongdoer, if such act ought to 
 have been foreseen. The original negligence still remains a 
 culpable and direct cause of the injury. The test is to be found 
 in the probable injurious consequences which were to be antic- 
 ipated, not in the number of subsequent events and agencies 
 which might arise. 
 
 "Whether in any given case the act charged was negligent, and 
 whether the injury suffered was, within the relation of cause 
 and effect, legally attributable to it, are questions for the jury. 
 They present oftentimes difficult questions of fact, requiring 
 practical knowledge and experience for their settlement, and 
 where there is evidence to justify the verdict, it cannot be set 
 aside as matter of law." 
 
 In Herman v. Schultz'^ the court say : 
 
 "The plaintiff failed to sustain the burden of showing that 
 the defendant was guilty of an act of negligence that was the 
 proximate cause of the injury. It was clearly an intervening 
 act of a third party, in no way connected with the defendant, 
 that set the machine in motion and caused the injury. The rule 
 is well settled that where the proximate cause of the injury com- 
 plained of is the intervening act of a third party, the defendant 
 is not liable." 
 
 § 1040. When an accident and negligence combine to bring 
 about an injury. — "Where an injury is the combined result of the 
 negligence of the defendant, and an accident for which neither the 
 plaintiff nor the defendant is responsible, the defendant must pay dam- 
 ages, unless the injury would have happened if he had not been negli- 
 gent."«' 
 
 Board of Commrs. of Parke County v. Sappenfield*' Mr. Justice 
 Gavin says : 
 
 "Where two proximate causes produce an injury, the one 
 cause being purely accidental, and arising without the fault of 
 any one, while the other cause is the result of the negligence of 
 the one party, he who is thus negligent must respond in dam- 
 ages to one himself without fault." 
 
 8'8i N. Y. Supp. 647, 40 Misc. 212. 
 ssThompson, Com. on Negligence, 2d ed., sec. 68. 
 896 Ind. App. 577, S82, 33 N. E. 1012. 
 
 688 
 
CONCURRENT NEGLIGENCE § I04I 
 
 § 1041. Defendants engaged in common enterprise. — Where two 
 salesmen are canvasing a territory together in an automobile, sharing 
 the expenses they may be jointly liable for the negligence of the owner 
 and driver in driving fast through a town with insufficient lights.'" 
 
 Where two defendants are partners in business and are using a car 
 in their partnership business both are jointly liable for the negligence 
 of the one driving.'^ 
 
 But where the driver invites two young ladies to ride home with him 
 from a meeting they are not so engaged in a joint enterprise as to 
 render his negligence imputable to them. The guest must be in a 
 situation to assume the control or control in some manner the automo- 
 bile.=2 
 
 Where one defendant without authority takes an automobile belong- 
 ing to the other defendant and finds it is not running right when he 
 meets the owner and they both get in and drive it in an effort to see 
 what the matter is they are both negligent as engaged in a common 
 enterprise.'* 
 
 Where the buyer and seller of an automobile are jointly liable for its 
 use while demonstrating the car to the purchaser a verdict dividing 
 part of the damage on one and part on another cannot be received.'* 
 
 § 1042. Servant injured by joint negligence of master and a third 
 person. — An employee being driven by a member of the firm on firm 
 business can recover jointly against both the employer and a street 
 car company where the accident was caused by a collision due to the 
 concurrent negligence of both." 
 
 § 1043. Liabilities of master and chauffeur. — The fact that a yer- 
 dict is entered in favor of a chaufiFeur sued as defendant is no defense 
 to a suit against the master for the same accident. The plaintiff is 
 aggrieved but not the defendant at the failure to render a verdict 
 
 '"Judge V. Wallen, 98 Nebr. 154; 152 N. W. 318. 
 91 Van Horn v. Simpson, 35 S. D. 640; 133 N. W. 883. 
 '^Lawrence v. Sioux City, Iowa (1916), 154 N. W. 494.' 
 "Carpenter v. Campbell Automobile Co., 159 Iowa 52 ; 140 N. W. 225 ; 4 N. 
 C. C. A. I. 
 '^Holmboe v. Morgan, 69 Oregon 395, 138 Pac. 1084. 
 '"Coleman v. Minneapolis St. Ry. Co., 113 Minn. 364, 129 N. W. 762. 
 
 689 
 44 
 
§ I044 ACTlONABI<B N^GIvIGENCB 
 
 against the chauffeur equally liable in damages. The court notes 
 conflict of authority in other jurisdictions.*' 
 
 § 1044. Passenger injured in collision. — ^Where a passenger in a 
 taxicab is injured in a collision through the joint negligence of the 
 drivers of both machines this is a joint tort for which the defendants 
 are jointly and severally liable.*^ 
 
 A passenger injured in a collision between a public automobile and 
 a street car may sue the owners of both. Where the negligence of each 
 concurred in the accident the cause of action was joint and several.*' 
 
 § 1045. Pedestrian injured as result of collision. — ^Where a col- 
 lision between two automobiles results in injury to a pedestrian the 
 driver of either or both may be liable if negligent.®* 
 
 Where one defendant negligently leaves his automobile unlighted at 
 night in the street and the other defendant carelessly runs into it and 
 his course is deflected towards the plaintiff so as to run over him both 
 are jointly liable, and the negligence of both is the proximate cause of 
 the accident.^"" 
 
 Where a pedestrian is injured as a result of a collision between two 
 automobiles and sues the drivers of both machines jointly one of the 
 defendants is not entitled to a peremptory instruction in his favor on 
 the conclusion of the plaintiff's case where any defect in the plaintiff's 
 proof is supplied by the testimony of the other defendant.^ 
 
 § 1046. Defendants racing injuring pedestrian. — ^Where two au- 
 tomobilists are racing negligently operating their cars on the highway 
 a person injured can sue them jointly or severally although he can 
 have but one satisfaction in damages.^ 
 
 § 1047. Horse frightened by various motor vehicles.^* — Where 
 a horse is frightened by two motorcycles driven by at the same time 
 
 96 Weil V. Hagan, 166 Ky. 750; 179 S. W. 833. 
 s'Kilkenny v. Bockius, (Cir. Ct. D. R. I.) ; 187 Fed. 382. 
 osMcFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 652, 143 S. W. 884. 
 9*Matlack v. Sea, 144 Ky. 749, 139 S. W. 930, 2 N. C. C. A. 305. 
 wjaquith v. Worden, 73 Wash. 349, 132 Pac. 33, 48 L. R. A. (N. S.), 827. 
 iMatlack v. Sea, 144 Ky. 749, 139 S. W. 930, 2 N. C. C. A. 30S. 
 ^Brown v. Thayer, 212 Mass. 392; 99 N. E. 237. 
 2aAs to frightening horses see further post Chapter XXXV. 
 
 690 
 
PROXIMATE CAUSE § 1048 
 
 the absence of concert between them is immaterial but as each con- 
 tributed to the injury they may be sued jointly or severally. 
 
 There is no injustice in the failure of the jury to discriminate 
 in fixing the blame and to assess full damages against each, but 
 "a satisfaction of one judgment is all that the plaintiff is entitled 
 to."" 
 
 The drivers of various cars may be jointly liable where they drive 
 about twenty-five yards apart in one party at high speed and pass the 
 plaintiff's horses, the combined noise and actions of all finally fright- 
 ening his horses.* 
 
 § 1048. Defect in highway and negligent driving. — Where a trac- 
 tion company negligently leaves a rut beside its track and a truck 
 driver negligently runs into it and loses control of his vehicle his em- 
 ployer and the traction company are jointly liable to a pedestrian in- 
 jured.' 
 
 § 1049. Practice — Limiting effect of evidence. — ^Where there is 
 evidence admissible against one defendant and not against the other 
 the proper practice is to limit its effect by a special charge to the one 
 who may be affected.' 
 
 § 1050. Effect of Release. — A release under seal of one of two 
 joint tort-feasors releases all but a release of one expressly reserving 
 rights against another does not.'' 
 
 VI. Proximate Cause. 
 
 § 1051. Distinction between causes and conditions. 
 
 1052. Proximate cause and remote cause in general. 
 
 1053. Cases in illustration of the general doctrine. 
 
 1054. The difficulty not with the rule, but with its application, 
 loss. Sequence of consequences. 
 
 ios6. Consequences must be such as naturally to have been apprehended. 
 
 1057. Intervention of independent responsible cause. 
 
 1058. Negligent act injurious to a third party through an innocent inter- 
 
 mediary. 
 
 'Corey v. Havener, 182 Mass. 250, 65 N. E. 69. 
 *Schweppe v. Uhl, 97 Neb. 328, 149 N. W. 789. 
 ^Geise v. Mercer Bottling Co., 87 N. J. L. 224, 94 Atl. 24. 
 *Lefkovitz v. Sherwood, Tex. Civ. App. ; 136 S. W. 8so. 
 'Blackmer v. McCabe, 86 Vt. 303; 85 Atl. 113. 
 
 691 
 
§ IO51 ACTlONABI,e NSGUGENCE 
 
 1059. Proof not necessarily positive or direct. 
 
 1060. Functions of the court and of the jury on this subject. 
 
 1061. Burden of proof of proximate cause. 
 
 1062. Disease resulting from negligence. 
 
 1063. Negligence aggravating disease or injury. 
 
 1064. L,iability for mental suffering, fright, or nervous shock. 
 
 1065. Fright of animals — Act of driver. 
 
 1066. Where operator turns to avoid another and injures plaintiff. 
 
 1067. Sudden starting of car steered by another. 
 
 1068. Unlawful act of either party does not ipso facto bar a recovery for 
 
 negligence. 
 
 1069. Illegal speed as cause of accident. 
 
 1070. Traveling on wrong side of road. 
 
 1071. Failure to sound horn. 
 
 1072. Failure to carry numbers. 
 
 1073. Failure to carry lights, 
 
 1074. Pole near highway. 
 
 § 105 1. Distinction between causes and conditions. — ^With con- 
 troversies existing between the different schools of thought on the 
 subject mentioned in the section caption, the law does not concern itself. 
 It looks for a ca-iise to a "responsible human will." That which fol- 
 lows after the exercise or wrongful failure to exercise such will, as 
 incidental thereto or resulting therefrom, the law regards as a condition. 
 "On the other hand, the fact that a party is shown to have been negli- 
 gent in a particular proceeding does not make him liable for an injury 
 produced by conditions to which his negligence did not contribute."^ 
 
 While the principle is plain the application of it is often involved in 
 difficulty.^ 
 
 In the case cited, Mr. Justice Knowlton remarks : 
 
 "The best minds often differ upon the question whether, in 
 a given case, illegal conduct of a planitiff was a direct proxi- 
 mate cause, contributing with others to his injury, or was a mere 
 condition to it." 
 
 § 1052. Proximate cause and remote cause in general. — Gen- 
 erally speaking, the proximate or direct cause, — often called the "effi- 
 cient cause," is the act or omission that is responsible for the result. 
 The remote cause is an occurrence from which the event might have 
 
 ^Wharton on Negligence, 2d ed., sec. 85. 
 
 »Newcofflb V. Boston, Prot. Dept, 146 Mass. 596, 602, 16 N. E. 555. 
 
 692 
 
PROXIMATE CAUSE § IO52 
 
 followed, but between which and such event, there transpired other 
 independent and intervening acts or omissions, from which the event 
 complained of naturally ensvied.^" 
 
 A concise expression of the idea is given by Dr. Thompson, that 
 "proximate cause is probable cause; remote cause is improbable 
 cause."" 
 
 The "'primary" cause may be the remote cause, or it may be the 
 proximate cause. It may be compared with the initial link in a chain 
 of events, which connected with the disaster. This explanation di- 
 vests the subject of the idea that the proximate cause is necessarily 
 the nearest in point of time or sequence to the result, and leaves it 
 so that any number of events may intervene, set in motion by, and 
 following from the original act of negligence, and yet the original act 
 or omission remain the proximate cause of the injury complained of.^^ 
 
 But, says Judge Peters, in Page v. Bucksport,^^ quoted by Dr. Thomp- 
 son: 
 
 "There can be no fixed and immutable rule upon the subject 
 that can be applied to all cases. Much must, therefore, as is 
 often said, depend on the circumstances of each particular case." 
 
 A sweeping statement of the doctrine in negative form, is that noth- 
 ing can be deemed the proximate cause of an injury unless, had it not 
 happened, the injury would not have occurred.^* 
 
 And there must always be borne in mind whether dealing with the 
 subject of proximate cause or contributory negligence, that the neg- 
 ligence or fault of the plaintiff or of the defendant, is one thing, and 
 causal connection between that negligence or fault, and the catastrophe 
 is another. Dr. Thompson^^ points it out particularly in the case of 
 contributory negligence, but the doctrine applies with equal force to the 
 defendant's negligent act. 
 
 loWharton on Negligence, 2d ed., sec. 85; Aiken v. Holyoke St R)',, 184 
 Mass. 269, 68 N. E. 238. 
 See § 1522, Wilful and wanton negligence, where case is quoted. 
 i^Com. on Negligence, 2d ed., sec. 50. 
 i^See Needy v. Littlejohn, 137 Iowa 704, 115 N. W. 483. 
 1364 Maine 51, 53. 
 
 i*Thompson, Com. on Negligence, 2d ed , sec. 56. 
 i^Com. on Negligence, 2d ed., sec. 229. 
 
 693 
 
§ 1053 ACTIONABLE NEGWGBNCE 
 
 In McFern v. Gardner,^^ a motor vehicle'case, Presiding Justice 
 Bland says : 
 
 "It was not enough to show an accident and injury. A causal 
 connection must be established between the accident and the 
 negligence charged, in order to make out a case for the jury." 
 
 The Supreme Court of Wisconsin, in Deisenrieter v. Kraus, Etc.," 
 give the following as a definition of proximate cause : 
 
 "The efficient cause; that which acts first and produces the 
 injury as a natural and probable result, under such circum- 
 stances that he who is responsible for such cause as a person of 
 ordinary intelligence and prudence, ought reasonably to forsee 
 that personal injury to another may probably follow from such 
 person's conduct." 
 
 § 1053. Cases in illustration of the general doctrine. — Mr. Justice 
 Strong, in Insurance Co. v. Boon,^' thus defines proximate cause : 
 
 "The proximate cause is the efficient cause, the one that nec- 
 essarily sets the other causes in operation. The causes that are 
 merely incidental or instruments of a superior or controlling 
 agency, are not the proximate causes and the responsible ones, 
 though they may be nearer in time to the result. It is only 
 when the causes are independent of each other that the nearest 
 is, of course, to he charged with the disaster. A careful con- 
 sideration of the authorities will vindicate this rule." 
 
 And in Milwaukee, Etc., R. v. Kellogg^' speaking on the same sub- 
 • ject the same justice also says : 
 
 "The primary cause may be the proximate cause of a disas- 
 ter, though it may operate through successive instruments, as 
 an article at the end of a chain may be moved by a force ap- 
 plied to the otljer end, that force being the proximate cause of 
 the movement, or as in the oft-cited case of the squib thrown in 
 
 i«i2i Mo. App. I, 6, 97 S. W. 972. 
 
 i'97 Wis. 279, 72 N. W. 735. Approved in Eichman v. Buchheit, 128 Wis. 385, 
 389, 107 N. W. 325. See also Thies v. Thomas, 77 N. Y. Supp. 276, 280, Towle 
 V. Morse, 103 Maine 250, Penn v. Clark, 11 Cal. App. 79, 103 P. 944; Grant v. 
 Armstrong et al., 55 Wash. 365, 104 Pac. Repr. 632. 
 
 "95 U. S. 117. 130. 
 
 i»94 U. S. 469, 474- 
 
 694 
 
PROXIMATE CAUSE § 1053 
 
 the market place, 2 Bl. Rep. 892. The question always is, was 
 there an unbroken connection between the wrongful act and 
 the injury, a continuous operation. Did the facts constitute a 
 continuous succession of events so linked together as to make 
 a natural whole, or was there some new and independent cause 
 intervening between the cause and the injury? It is admitted 
 that the rule is difficult of application. But it is generally held 
 that, in order to warrant a finding that neghgence, or an act not 
 amounting to wanton wrong, is the proximate cause of an in- 
 jury, it must appear that the injury was the natural and probable 
 consequence of the negligence or wrongful act, and that it ought 
 to have been foreseen in the light of the attending circum- 
 stances." 
 
 The "Squib case," referred to by Judge Strong, is generally cited 
 as the leading case on this subject. It is that of Scott v. Shepherd.^" 
 The facts were that in the public market place, the defendant threw a 
 lighted gunpowder squib, which fell upon the gingerbread stand of 
 one Yates, who precipitately threw it off his stand, from whence it fell 
 upon the stand of one Ryal, who hastily in his turn, threw it from him, 
 whereupon it struck the plaintiff Scott and, bursting, put out his eye. 
 The court held the act of Shepherd in originally throwing the squib 
 was the proximate cause of Scott's injury.^"* 
 
 Following the doctrine of the cases just referred to, and looking at 
 the matter from the opposite standpoint, namely that of the effect, the 
 proximate or immediate and direct damages,^^ Dr. Thompson says, 
 are, by a long series of judicial decisions, defined "to be the ordinary 
 and natural results of the negligence, such as are usual, and as there- 
 fore might have been expected ; and this includes in the category of 
 remote damages, such as are the result of an accidental or unusual com- 
 bination of circumstances which would not be reasonably anticipated, 
 and over which the negligent party has no control."^^ 
 
 From this, it follows that "where a number of causes and results 
 intervene between the first wrongful cause and the final injurious con- 
 sequence, which are such as might with reasonable diligence have been 
 
 "''2 W. Black, 892 (Eng.), and I Smith's Leading Cases, S49, 7th Am. ed., 7SS- 
 2oaSee Wharton on Negligence, 2d ed., sec. 95. 
 
 2iSee Chapter on Measure of Damages, Elements of direct and remote dam- 
 ages, § 1719. 
 22Thompson, Com. on Negligence, 2d ed., sec. 47. 
 
 695 
 
§ I054 ACTlONABlvE NEGI^IGENCU 
 
 forseen, the last as well as every intermediate result, is to be considered 
 as the proximate result of the first wrongful cause."^^ 
 
 § 1054. The difficulty not with the rule but with its application. 
 —In Metallic C. C. Co. v. Fitchburg R.,^* Chief Justice Chapman re- 
 marks : 
 
 "'The question of proximate cause is often involved in diffi- 
 culty, by reason of the endless variety of circumstances in which 
 injuries may occur, and the cases on the subject are very numer- 
 ous."^= 
 
 In Hill v. Winsor^* Mr. Justice Colt, to the same effect, says: 
 
 "The defendant's liability depends upon circumstances, which 
 as the cases arise, are of infinite variety and combination. If 
 there is any evidence upon which the jury may legally found a 
 verdict for the plaintiff, that verdict cannot be disturbed on ex- 
 ceptions as matter of law, unless there has been some error in 
 the conduct of the trial, or the judge has failed to state the true 
 test of liability in his instructions as applied to the facts dis- 
 closed." 
 
 § 1055. Sequence of consequences. — There must be, according to 
 the common observation of men, or shown by competent testimony, a 
 "natural and continuous sequence" between the original negligence 
 and the injury. So many differences of opinion and difficulties have 
 been met in the general application of the doctrine that bears this 
 name, that "some of the ablest judges have declined to state any fixed 
 rule, and have indicated a disposition to leave all doubtful cases to the 
 jury."" 
 
 § 1056. Consequences must be such as naturally to have been 
 apprehended.^' — As already observed, the consequences flowing from 
 
 23Thompson, Com. on Negligence, 2d ed., sec. 51 ; People v. Scanlon, 132 N. 
 Y. App. Div. 528, 117 N. Y. S. 57; Grant v. Armstrong, etc., 55 Wash. 365, 104 
 Pac. Repr. 632, 1909; Thomas v. Armitage, in Minn. 238, 126 N. W. Repr. 735. 
 
 2*109 Mass. 277, 282. 
 
 25See also Milwaukee, etc., R. v. Kellogg, 94 U. S. 469, 474. 
 
 28ii8 Mass. 251, 258. 
 
 ^^Shearman & Redf. on Negligence, Sth ed., sec. 28; Wharton on Negligence, 
 2d ed., see. 97. 
 
 z^See the following motor vehicle cases: Eichman v. Buchheit, 128 Wis. 385, 
 107 N. W. 32s; Simeone v. Lindsay, Del. 1907, 65 Atl. Repr. 778; Murphy v: 
 Meacham, i Ga. App. 155, 57 S. E. 1046; Shaffer v. Coleman, 35 Pa. Super. Ct. 
 386; McDonald v. Yoder, 80 Kas. 25, loi P. 468. 
 
 696 
 
PROXIMATH) CAUSE § IO57 
 
 the negligent act must, ordinarily, be natural consequences, such as 
 might with reasonable diligence, have been conceived. But it "is not 
 necessary that the injury in the precise form in which it in fact resulted, 
 should have been foreseen. It is enough that it appears to have been 
 a natural and probable consequence."^^ 
 
 "The damages cannot be considered too remote if, according to the 
 usual experience of mankind, injurious results ought to have been ap- 
 prehended."'" 
 
 In Feeny v. Wabash R.^^ unusual noises emitted by a locomotive, 
 were held to be the proximate cause of the fright of gentle horses ac- 
 customed to railro,ad trains. To the same effect is Lane v. Atlantic 
 Works,^^ which was a negligence case, wherein Mr. Justice Colt ob- 
 served : 
 
 "In actions of this description, the defendant is. liable for the 
 natural and probable consequences of his negligent act or omis- 
 sion. The injury must be the direct result of the misconduct 
 charged; but it will not be considered too remote if, according 
 to the usual experience of mankind, the result ought to have 
 been apprehended." 
 
 § 1057. "Intervention of independent responsible cause." — So 
 closely allied with conditions alluded to in the previous topic as to be 
 almost indistinguishable therefrom, are the mishaps suggested by this 
 phrase. It is an expression often found in the books and is difficult of 
 such exact description as will avoid confusion with other forms of con- 
 curring negligence. Under this title. Dr. Thompson^' presents and 
 treats the subject by means of illustrations. Dr. Wharton^* asks and 
 answers a question involving a supposititious case. Shearman & Red- 
 field^^ describe it as "a superseding cause, whether intelligent or not, 
 if it so entirely supersedes the operation of the defendant's negligence 
 that it alone without his negligence contributing thereto in the slightest 
 degree, produces the injury." 
 
 29HilI V. Winsor, 118 Mass. 251, 259; Schumaker v. St. Paul, etc., R., 46 
 Minn. 39, 42, 48 N. W. 559; Thompson, Com. on Negligence, ad ed., sec. 59. 
 ^"Schumacher v. St. Paul, etc., R., supra. 
 ^^123 Mo. App. 420, 430. 
 ^^m Mass. 136, 139. 
 3'Com. on Negligence, 2d ed., sec. 61. 
 2*0n Negligence, 2d ed., sec. 134. 
 ^'On Negligence, 5th ed., sec. 32. 
 
 697 
 
§ IOS7 ACTION ABI,5 NEGLIGENCE 
 
 The following case is quoted in illustration of the proposition, and 
 of the rule prevailing under circumstances to which it applies. In 
 Ring V. City of Cohoes^° the facts were that on the side of the street 
 was a heap of ashes about twenty feet long and three feet high, which 
 extended out into the roadway about eleven feet, thus narrowing the 
 street for free passage. On the opposite side of the street and a little 
 beyond the ash heap, was a hydrant. Plaintiff was driving a blind 
 horse hitched to a sleigh, and, while in the narrow place, met a loaded 
 wagon coming towards him. Plaintiff's horse became frightened and 
 unmanageable, running away, causing the sleigh to strike the nozzle of 
 the hydrant, whereby the injury occurred. The concurring act of neg- 
 ligence, were (i) permitting the pile of ashes to remain in the street, 
 (2) erecting and maintaining the hydrant, so that its nozzle projected 
 into the street. The court, by Mr. Justice Earl, say : 
 
 "Where several proximate causes contribute to an accident 
 and each is an efficient cause, without the operation of which 
 the accident would not have happened, it may be attributed to 
 all or any of the causes, but it cannot be attributed to a cause, 
 unless without its operation the accident would not have hap- 
 pened."'' 
 
 The facts of the case in Powell v. Deveney^^ apply in further illus- 
 tration of the rule. Defendant's teamster left his truck for the night 
 along the curbstone, with the shafts shored up on a board. Another 
 truck came along and stopped temporarily on the opposite side of the 
 street, but leaving room for passage between. The two trucks being 
 so placed, a third truck attempted to pass between, in doing which the 
 passing team struck defendant's truck in sucha way as to knock out the 
 shoring, whirling the shafts toward and across the sidewalk, striking the 
 plaintiff, a child, breaking her leg. The court held defendant responsi- 
 ble irrespective of any negligence which might have been found against 
 
 =877 N. Y. 83, 86. 
 
 s^See also Searles v. Manhattan Ry., loi N. Y. loi ; Quigley v. Del., etc., 
 Canal Co., 142 Pa. St. 388, 396, 21 A. 827; Lockhart v. Lichtenthaler, 46 Pa. St. 
 151; Omaha St. Ry. v. Larson, 70 Neb. 591, 97 N. W. 822. 
 
 8857 Mass. 300. See § 895. 
 
 See the following motor vehicle cases : Garfield v. Hartford, etc., St. Ry., 
 79 Colin. 458, 6s A. 598 ; Walton v. Van Guard Motorbus Co., 25 Times L. Reps. 
 K. B. 13, 1908. 
 
 69S 
 
PROXIMATE CAUSE § 105^ 
 
 the other two, basing the finding on grounds similar to those in cases 
 quoted.^' 
 
 § 1058. Negligent act injurious to a third party, through an in- 
 nocent intermediary. — Axi illustration of what is sometimes spoken of 
 as "circuity," and occasionally as "consequential" negligence, is con- 
 tained in the case of McDonald v. Snelling.*" The facts were that 
 plaintiff was driving a horse hitched to a sleigh, and was in the exer- 
 cise of due care. Defendant was also driving a horse attached to a 
 sleigh, and, through his negligence, caused the horse and sleigh of a 
 third person, one Baker, to collide with plaintiff's vehicle, breaking it 
 in pieces. Mr. Justice Foster, who delivered the opinion of the court, 
 says, the question is : 
 
 "Whether the injury received by the plaintiff was so remote 
 from the negligent act of the defendant that the action cannot 
 be sustained, although the plaintiff was injured without his own 
 fault, and would not have been injured but for the fault of the 
 defendant. How far at common law is one guilty of negligence 
 responsible in damages for the consequences resulting from his 
 negligence? * * * 
 
 "In actions at common law for damages caused by negligence, 
 * * * it is perfectly well settled that the contributory negli- 
 gence of a third party is no defense, where the defendant has 
 also been guilty of negligence without which the damage would 
 not have been sustained." 
 
 In Cooley on Torts*^ it is said : 
 
 "If the original act was wrongful, and would naturally, ac- 
 cording to the ordinary course of events, prove injurious to 
 some other person or persons, and does actually result in in- 
 jury through the intervention of other causes, which are not 
 wrongful, Sie injury shall be referred to the wrongful cause, 
 passing by those which were innocent. But if the original 
 wrong only becomes injurious in consequence of the interven- 
 
 '^Another case presenting an interesting state of facts is that of Louisville 
 & N. R. R. V. Eckman, 137 Ky. 331, 125 S. W. Repr. 729. 
 
 See the following motor vehicle cases: Garfield v. Hartford, etc., St. Ry. 
 Co., 79 Conn. 458, 65 A. S98; Garfield v. Hartford, etc., St. Ry. Co., 80 Conn. 
 260, 67 A. 890. The intervening act of a third party will break the casual con- 
 nection. Berman v. Schultz, 81 N. Y. Supp. 647, 84 N. Y. Suppl. 292, 40 Misc. 
 212. 
 
 *096 Mass. 290. 
 
 *i3d ed., pp. 76, 77. 
 
 699 
 
§ 1058 ACTIONABLE NEGIylGENCE 
 
 tion of some distinct wrongful act or omission by another, the 
 injury shall be imputed to the last wrong as the proximate cause, 
 and not to that which was remote." * * * (P- 83) "There 
 is a maxim that 'fraud is not purged by circuity,' and this is 
 true of any wrongful act. If its influence must naturally, and 
 without the interposition of any extraordinary event, produce 
 to some one an injurious result, it is immaterial what shall be 
 the circuit of events or the number of successive stages" * * * 
 (p. 88). "Just as a rolling stone put in motion down a hill, 
 injuring several persons in succession, inflicts the last injury 
 as a proximate result of the original force as directly as it does 
 the first ; though if it had been stopped on the ivay and started 
 anew by another^^ person, a new cause would thus have inter- 
 vened back of which any subsequent injury could not have been 
 traced. Proximity of cause has no necessary connection with 
 contiguity of space or nearness of time."*' 
 
 In Waller v. Missouri, K. & T. R." Mr. Justice Gill says : 
 
 "The case is grounded on two causes contributing to the in- 
 jury; and it has been well said, when several proximate causes 
 contribute to an accident, and each is an efficient cause, with- 
 out the operation of which the accident would not have hap- 
 pened, it may be attributed to all or any of these causes. Ring 
 V. City of Cohoes, yj N. Y. 83. There were here, according to 
 plaintiff's evidence, two efificient proximate causes, both con- 
 tributing to the injury inflicted. The party, therefore, who 
 by his or its negligent act brought about one or both of these, is 
 liable for the injurious consequences. As was said in Banks 
 v. Railroad, 40 Mo. App. 464 : 'It matters not that other con- 
 current causes (not arising from plaintiff's fault) may cooperate 
 in producing the damages, or in the aggravation thereof, the 
 party originally moving and guilty of the neghgent act which 
 sets in motion the concurrent condition of things, is liable for 
 the damages thus inflicted.' "*^ 
 
 ^^Italics by the author of this book. 
 
 *3See Eaton v. Boston & L. R., 93 Mass. 500; Norton v. Sewall, 106 Mass. 
 143; Davis V. Guarnieri, 45 Ohio St. 470, 491, 15 N. E. 3So; Thompson, Com. on 
 Negligence, 2d ed., sec. 1332. 
 
 **S9 Mo. App. 410, 426. 
 
 ♦"See Murphy v. Meacham, i Ga. App. 155, 57 S. E. 1046; L,ouisville & N. 
 R. R. V. Eckman, 137 Ky. 331, 125 S. W. Repr. 729. 
 
 700 
 
PROXIMATE CAUSE § IOS9 
 
 Where the' defendant is negligent in driving his automobile by a 
 standing street car this is the proximate cause of the injury to the 
 plaintiflE struck by a person hurled against him by the automobile.*" 
 
 § 1059. Proof not necessarily positive or direct. — The proofs of 
 the facts showing the negligence and its proximate causal connection 
 with the injury, are not necessarily required to be "positive and di- 
 rect"; they may be indirect, and by "showing circumstances from 
 which the inference is fairly to be drawn, that these principal and es- 
 sential facts existed. When from the circumstances shown, inferences 
 are to be drawn, which are not certain and incontrovertible, and may 
 be differently made by different minds, it is for the jury to make 
 them."*' 
 
 § 1060. Functions of the court and of the jury on this subject. — 
 Whether an act or omission was the proximate or remote cause, is 
 usually a question for the jury.** 
 
 "Before the judge can take the question away from the jury and 
 determine it himself, the facts must not only be undisputed, but the 
 inference to be drawn from those facts must be such that fairminded 
 men ought not to differ about them." * * * "Where, however, the 
 presence of an intervening responsible agency is an obvious inference 
 from undisputed facts, it is not error to withhold the case from the 
 jury."*« 
 
 Mr. Justice Strong in Milwaukee, Etc., R. v. Kellogg'" says : 
 
 "The true rule is, that what is the proximate cause of an in- 
 jury is ordinarily a question for the jury. It is not a question 
 of science or of legal knowledge. It is to be determined as a 
 fact, in view of the circumstances of fact attending it."'^ 
 
 Especially is this so where the evidence is fairly convincing as to 
 what is the direct and proximate cause.^^ 
 
 *6prankel v. Norris, (Penn. 1916), 97 Atl. 104. 
 <7Hart V. Hudson R. Bridge Co., 80 N. Y. 622. 
 *8Shearman & Redf. on Negligence, 5th ed., sec. 55. 
 
 ^'Thompson, Com. on Negligence, 2d ed., sees. 161, 162; Shearman & Redf. 
 on Negligence, Sth ed., sec. s6. 
 ""94 U. S. 469, 474- 
 
 =iSee King v. Green, 7 Cal. App. 473, 94 Pac. Repr. ^^^. 
 520maha St. Ry. Co. v. Larson, 70 Neb. 591, 97 N. W. 824. 
 
 701 
 
§ I06l ACTIONABLE NEGLIGENCE 
 
 § 1061. Burden of proof of proximate cause. — "The burden of 
 showing that the negligence or other wrong was the proximate cause 
 of the injury, is upon the plaintiff. The plaintifiE must not only prove 
 negligence, but he must also prove that the negligence was the proxi- 
 mate cause of the injury, and he must show this by sufficient evidence; 
 mere surmise and conjecture that the negligence was the proximate 
 cause of the injury are not sufficient.""' 
 
 Hence a charge is erroneous which directs that the defendant is 
 liable if the defendant was driving negligently at the time of the acci- 
 dent. The charge omits entirely the question of proximity of cause." 
 
 § 1062. Disease resulting from negligence. — Evidence of any dis- 
 ease directly resulting from the accident entitles the plaintiff to have 
 this introduced as a separate item of damage.*'' 
 
 So peritonitis and pneumonia may be found to result from an auto- 
 mobile accident."^ 
 
 A trip in an automobile cannot however, be claimed to be the cause 
 of an attack of typhoid fever where the conductor of a railroad train 
 forgot to stop his train at the proper station and sent a passenger home 
 by automobile."^ 
 
 § 1063. Negligence aggravating disease or injury."' — If the neg- 
 ligence of one person produces a hurt to another person which aggra- 
 vates a pre-existing disease, or tendency to a disease, the negligence 
 and not the disease is deemed in law, the proximate cause of the in- 
 jury."" 
 
 The unskilfulness of the physician or nurse whereby the hurt was 
 aggravatd or death hastened, is . no defense ; nor does it go to thte 
 mitigation of damages. The question is, did the plaintiff exercise due 
 
 "^See the following motor vehicle cases: Simeone v. Lindsay, (Del.) 65 Atl 
 Repr. 778; Towle v. Morse, 103 Maine, 250; Hartje v. Moxley, 235 111. 164, 85 
 N. E. 216 ; Thompson, Com. on Negligence, 2d ed., sec. 45. 
 
 Pendroy v. Great Northern Ry. Co., 17 N. D. 433; 117 N. W. 331. 
 
 "Clark V. Wright, 167 N. C. 646, 83 S. E. 775- 
 
 BSMoody V. Louisville Ry. Co., 153 Ky. 14, 154 S. W. 384. 
 
 BsWendt V. Bowman, 126 Minn. 509, 148 N. W. 568. 
 
 "'Seaboard Air Line Ry. v. Standifer, 190 Ala. 260; (f^ So. 391. 
 
 "'See §§ 1760,1761; also see Posener v. Harvey, Tex. Civ. App., 125 S. W. 
 Repr. 3S6. 
 
 "'Thompson, Com. on Negligence, 2d ed., sec. 151 ; Shearman &| Redf. on 
 Negligence, Sth ed., sec. 31. 
 
 702 
 
PROXIMATE CAUSB § I064 
 
 diligence to secure such attention, and follow the directions in good 
 faith. In Sauter v. N. Y. C. & H. R. R.«o Chief Judge Church says, 
 concerning an alleged error of the physician causing death, and refer- 
 ring to the rule of an intervening cause which will break the sequence : 
 
 "It is claimed that the injury was not the proximate cause 
 of the death. * * * The general rule is that the actual injury 
 must be occasioned by the intervention of some responsible 
 third party or power. * * * I do not think that the mistake 
 of the surgeon can, in any sense, be regarded as such. The em- 
 ployment of a surgeon was proper, and may be regarded as a 
 natural consequence of the act, and the mistake * * * may 
 be regarded of the same character. * * * if one who is in- 
 jured by the negligence of another, acts in good faith under the 
 advice of a competent physician, even if it is erroneous, he may 
 recover, and the error is no shield to the wrong doer." In sup- 
 port of this view the chief judge cites Commonwealth v. Hack- 
 ett, 84 Mass. 137. 
 
 And the rule is the same regarding the acts of the nurse or person 
 in charge of the patient.'^ 
 
 § 1064. Liability for mental suffering, fright, or nervous shock. 
 — "The general rule" says Dr. Thompson, "supported by the numerical 
 weight of authority, undoubtedly is, that the law does not take notice 
 of injuries * * * where there is no contemporaneous physical in- 
 jury; or in other words no impact upon or contact with the body of 
 the sufferer."''^ 
 
 This subject will be found more fully considered in the chapter on 
 Measure of Damages.®' 
 
 § 1065. Fright of animals — Act of driver."* — Either driving at too 
 high speed"^ or driving too close to a horse may be the proximate cause 
 of frightening him and of the injury which resulted,'" although the 
 
 ^"66 N. Y. so, 53, citing Lyons v. Erie Railway, 57 N. Y. 489. 
 "^Wharton & Stille Med. Jurisprudence, sec. 509. 
 "^Com. on Negligence, 2d ed., sec. 155. 
 
 "'See §§ 1004, 1005. The doctrine is considered at some length by Chief Jus- 
 tice Winslow, in Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625. 
 "^Frightening animals, see further, post, § 1115 et seq. 
 "^Grant v. Armstrong & Bell Fuel Co., 55 Wash. 365; 104 Fac. 632. 
 "sPfeiffer v. Radke 142 Wis. 512; 125 N. W. 934. 
 
 703 
 
§ I066 ACTIONABLE NEGLIGENCE 
 
 driver rushed to the animal's head to hold him and would not have 
 been hurt if he had not done so.'^ 
 
 § 1066. Where operator turns to avoid another and injures plain- 
 tiff. — Where a pedestrian negligently crosses the street so that the de- 
 fendant who is also driving carelessly in avoiding the pedestrian runs 
 on to the sidewalk and hits the plaintiff the defendant is liable. His 
 negligence was the proximate cause of the injury.'* 
 
 § 1067. Sudden starting of car steered by another. — ^^The sudden 
 starting of a car after the driver has left it is the proximate cause of 
 an accident although the driver ran back and got on the running board 
 and attempted to steer it after it had started."' 
 
 § 1068. Unlawful act of either party does not ipso facto bar a re- 
 covery for negligence.'"' — "The mere fact that the plaintiff on the one 
 hand, or the defendant on the other, was engaged in violating the 
 law in a given particular at the time of the happening of the accident, 
 will not bar the right of action of the former, nor make the latter liable 
 to pay damages, unless such violation of law was an efficient cause of 
 the injury."™^ 
 
 "But the plaintiff cannot recover where he derives his title to main- 
 tain his action from his own breach of the law. This rule has already 
 been illustrated in a class of decisions to the effect that if the vehicle 
 of A. comes into collision with that of B. in the highway, the fact 
 that A. is at the time driving on the wrong side of the road will not, 
 as matter of law, prevent him from recovering damages of B., but will 
 be a circumstance to go to the jury on that question. "'"i* 
 
 The rule is brieily stated in Stevens v. Boston Elev. Ry., 184 Mass. 
 476, 479, where Chief Justice Knowlton says, speaking of the evi- 
 dence in that case : 
 
 "The evidence is somewhat analogous to proof of the viola- 
 tion of an ordinance or statute by the defendant or his servant, 
 
 B'Murphy v. Meachara, i Ga. App. 155, 57 S. E. 1046, where driver was a boy- 
 eleven years old. 
 «8Mahegan v. Faber, 158 Wis. 645, i49 N. W. 397- 
 s^Wallace v. Keystone Automobile Co., 239 Pa. no; 86 Atl. 699. 
 '"The subject of negligence, per se, is considered in § 1075, et seq. 
 70aThompson, Com. on Negligence, 2d ed., sees. 82, 204. 
 TobThompson, Com. on Negligence, 2d ed., sec. 249. 
 
 704 
 
PROXIMATE CAUSE § I069 
 
 which is always received as evidence, although not conclusive, 
 of the defendant's negligence." 
 
 It is said by Mr. Justice Knowlton, in Newcomb v. Boston Prot. 
 Dept., 146 Mass. 596, 602 : 
 
 "While this principle is universally recognized, there is great 
 practical difficulty in applying it. The best minds often differ 
 upon the question whether in a given case, illegal conduct of 
 a plaintiff was a direct and proximate cause contributing with 
 others to his injury, or was a mere condition of it; or, to state 
 the question in another way appropriate to the reason of the 
 rule, whether or not his own illegal act is an essential element 
 of his case as disclosed upon all the evidence. Upon this point 
 it is not easy to reconcile the cases." 
 
 The application of the foregoing doctrine and the length to which 
 the courts will go in giving it weight, is not uniform in American 
 jursdictions. Some of these distinctons are observed in cases where 
 the violation was of a municipal ordinance, or of a highway regula- 
 tion, and not of a general statute; or where the plaintiff at the time 
 of the injury, was engaged in the prosecution of an affair that was 
 unlawful under general provisions of law, e. g., transporting stolen 
 goods, or driving on Sunday, or was doing a voluntary act which he 
 was under no obligation to perform.^""" 
 
 § 1069. Illegal speed as cause of accident.^^ — ^The mere fact that 
 the defendant was travelling at an illegal speed is not enough of itself 
 to justify a finding for the plaintiff but he must also prove that the 
 speed was the proximate cause of the injury.''^ 
 
 So the fact that at the time of the collision the plaintiff was running 
 his automobile at an unlawful speed does not bar recovery if the speed 
 did not contribute proximately to cause the collision.''^ 
 
 ^"cMcCarragher v. Proal, 114 N. Y. App. Div. 470, igo6; Clark v. Van Fleck, 
 13s Iowa 194, 1907. 
 
 7iSee further, post, §§ 1075 el se.-j. 
 
 '^Wolfe V. Ives, 83 Conn. 174 ; 76 Atl. 526 ; Hartje v. Moxley, 235 III. 164, 
 8s N. E. 216; Eichman v. Buchheit, 128 Wis. 385, 107 N. W. 323. 
 
 'sTexas v.. P. Ry. Co. v. Hilgartner, Tex. Civ. App.; 149 S. W. 1091 ; 7 
 N. C. C. A. 4S4; Coffin v. Laskau, Conn. (1916) ; 94 Atl. 370, L. R. A. 1915 E. 
 959- 
 
 4S 
 
§ I07O ACTI0NABI<E NEGWGENCe 
 
 The fact that the plaintiff in a collision was driving his automobile 
 faster than the law allowed is negligence but is not a bar to action 
 unless there is evidence that this negligence contributed in the slightest 
 degree to the injuries.''* 
 
 It is a question for the jury whether the operation of an automobile 
 at a speed of twenty-five miles an hour in the city limits in violation of 
 ordinance is the proximate cause of the injury.''^ 
 
 A verdict should not be ordered for the defendant, a railroad com- 
 pany merely because the plaintiff in his automobile was exceeding the 
 maximum legal speed at that point in approaching the crossing. Such 
 a ruling improperly withdraws the question of proximate cause from 
 the jury.''" 
 
 Plaintiff's negligence is not the proximate cause of the accident 
 where she steps off a street car without looking and starts for the 
 sidewalk and is hit by the defendant's automobile driven recklessly by 
 the electric car at a high rate of speed without slowing up or making 
 any signal.''^ 
 
 § 1070. Traveling on wrong side of road.'* — If the violation of 
 a statute requiring travellers to drive to the right of the middle of the 
 road is one of the direct and proximate causes of the collision plaintiff 
 cannot recover/' and that one party was driving on the wrong side of 
 the road is evidence of negligence.'" 
 
 It is proper to instruct the jury that the defendant is not liable 
 simply because he was on the wrong side of the street when he struck 
 the plaintiff but only that if he were negligently there he would be and 
 that he had a right to be there for certain purposes.'^ 
 
 Needy v. Little john'^ was an automobile case wherein the defendant 
 appears to have been traveling on the "wrong" side of the road, and 
 
 ^*Georgfe v. McManus, 27 Cal. App. 414; 150 Pac. 73. 
 
 'BTaxicab & Touring Co. v. Cabiness, 9 Ala. App. 549, 63 So. 774. 
 
 'BShepard v. Norfolk & S. R. Co., 169 N. C. 239; 84 S. E. 377. 
 
 T'Wadley v. Dooly, 138 Ga. 27s ; 75 S. E. iS3- 
 
 ''See further, ante, §§ 354 et seq. 
 
 ^'Bourne v. Whitman, 209 Mass. 155; 95 N. E. 404; 35 L. R. A. N. S. 701 
 (note) ; 2 N. C. C. A. 318, 6 N. C. C. A. 317. 
 
 soAnderson v. Sparks, 142 Wis. 398; 125 N. W. 925; Denny v. Strauss, 109 
 N. Y. Suppl. 26; App. Terra, igo8; Lawson v. Wells Fargo, 113 N. Y. Suppl. 
 647, App. Term. 1909. 
 
 siClark v. Van Vleck, 135 Iowa 194, 112 N. W. 648. 
 
 82137 Iowa 704, 
 
 706 
 
PROXIMATE CAUSE § IO7I 
 
 failed to turn out in the manner required by the law of the road. On 
 the strength of this the plaintiff asked judgment for injuries sustained 
 in consequence of the fright of his horse. Mr. Justice Deemer says : 
 
 "The defendant had the right to run his automobile in the 
 traveled track, provided there was room to pass, and the horse 
 had shown no signs of fright, and even though you find from 
 the evidence that defendant did not turn to the right and give 
 the plaintiff one-half of the traveled track, still if the accident 
 was not caused by his failure to do so, then the plaintiff could 
 not recover on that ground" ; such failure must be "the prox- 
 imate cause of the injury." 
 
 That one walking in the road turns to the left instead of to the right 
 as required by statute when overtaken by an automobile will not pre- 
 vent recovery where the automobile was traveling at a reckless speed 
 and his turning was not the proximate cause of the accident.'^ 
 
 The court may refuse to instruct the jury that the presence of ob- 
 structions in the street would warrant the defendant in turning over to 
 the wrong side of the street where the only question is whether the de- 
 fendant struck the plaintiff.** 
 
 § 1071. Failure to sound horn. — The defendant's failure to sound 
 his horn before rounding a corner may have contributed to the accident 
 and may be considered by the jury as one of the facts in evidence.*' 
 
 § 1072. Failure to carry numbers. — In Belleveau v. Lowe Sup- 
 ply Co.*° the court, by Mr. Justice Morton, held that traveling at night 
 with lamps which contained no numbers thereon, as required by law, 
 was in no sense a proximate cause of the accident in which the plain- 
 tiff was injured, and so excluded the testimony. 
 
 § 1073. Failure to carry lights. — A verdict for the plaintiff will be 
 affirmed where the defendant was traveling without lights in violation 
 of law where this violation appears to have contributed directly to the 
 injury.*' 
 
 *'Feehan v. Slater, (Conn. 1916) ; 96 Atl. 159. 
 
 8*Suell V. Jones, 49 Wash. 582, 96 P. 4. 
 
 s^Shaffer v. Coleman, 35 Pa. Super. Ct. 386. 
 
 86200 Mass. 237, 86 N. E. 301. 
 
 *'Fenn v. Clark, 11 Cal. App. 79, 103 Pac. 944. 
 
 Scofield V. Poughkeepsie, 107 N. Y. S. 767, 122 App. Div. 868. 
 
 707 
 
V 
 § 1074 ACTIONABLE NtGtlGtNCt 
 
 § 1074. Pole near highway. — ^Where the plaintiff turns out to avoid 
 an automobile at night and collides with a telephone pole placed too 
 near the traveled road the proximate cause of the accident was the au- 
 tomobile running the plaintiff out of his course and not the negligence 
 of the highway commissioners in not anticipating that this might occur. 
 
 VII. Violation of Law as Affecting Nbgugence.88 
 
 § 1075. Violation of statute and ordinance distinguished. 
 
 1076. When plaintiff violates the statute. 
 
 1077. Violating right of way. 
 
 1078. Violation of law of road. 
 
 1079. Unlawful speed evidence of negligence. 
 
 1080. Degree of care while violating law. 
 
 1081. Using best judgment though violating statute. 
 
 1082. The violation must be a proximate cause. 
 
 1083. Prima facie case in this conection. 
 
 1084. Coasting illegally. 
 
 1085. Burden of proof to show lawful operation. 
 
 1086. Unregistered vehicle on the highway. 
 
 1087. The Massachusetts rule as to unregistered vehicles. 
 
 § 1075. Violation of statute and ordinance distinguished. — ^Al- 
 though it is the general rule that the violation of an ordinance has the 
 same effect as evidence of negligence as the violation of a statute," 
 still it has been held that failure to operate an automobile in accordance 
 with the statutes is contributory negligence per se but a violation of an 
 ordinance is not.®" 
 
 § 1076. When plaintiff violates the statute. — It follows from the 
 foregoing, that a plaintiff who while in the act of violating a law, 
 sustains an injury, which violation contributed to the injury, can 
 maintain no successful action against a defendant whose active negli- 
 gence was the cause of such injury, and this, even though the plaintiff 
 was diligent in all other respects. In Newcomb v. Boston Prot. Dept.'^ 
 Mr. Justice Knowlton says on this point : 
 
 "No case has been brought to our attention, and upon care- 
 ful investigation we have found none, in which a plaintiff 
 
 s'Failure to take out operator's license, see ante, § 264. 
 
 ssMickelson v. Fischer, 81 Wash. 423; 142 Pac. 1160, and other cases cited 
 in this chapter. 
 s^Western v. Grand Rapids Ry. Co., 180 Mich. 373, 147 N. W. 630. 
 91146 Mass. S96, 602, 16 N. E. SSS- 
 
 708 
 
VIOLATION OF LAW § 1077 
 
 whose violation of law contributed directly and proximately to 
 cause him an injury has been permitted to recover for it; and 
 the decisions are numerous to the contrary." (citing many 
 cases.) "And it is quite immaterial whether or not a plaintiff's 
 unlawful act contributing to his injury is negligent or wrong 
 when considered in all its relations. He is precluded from re- 
 covering, on the ground that the court will not lend its aid to one 
 whose violation of law is the foundation of his claim. Hall v. 
 Corcoran, 107 Mass. 251." 
 
 A violation of a statute or ordinance may be pleaded as contributory 
 negligence where the statute was enacted for the benefit of the party 
 invoking its violation.'^ 
 
 "If the plaintiff is himself in the wrong or not in the exercise of a 
 legal nghtj he must use extraordinary care before he can complain of 
 the negligence of the defendant."^* But "the mere fact that a person 
 unlawfully exposes his person or property to a negligent injury does 
 not justify another person in subsequently injuring it, when he might 
 have avoided doing so by the exercise of ordinary care; and the rule 
 equally applies in the case where one unlawfully exposes his person to 
 an injury."'* 
 
 Shearman & Redfield call attention to the further fact that even 
 though the plaintiff is acting in violation of a statute or ordinance, to 
 amount to contributory negligence, the violation must have been a con- 
 tributing cause of the injury.*' The same proposition holds true in the 
 case of the defendant.^' 
 
 It may be that if a city automobile is being used not on city business 
 contrary to statute that neither the driver nor his guests can recover on 
 account of an accident."' 
 
 § 1077. Violating right of way. — Where vehicles in streets run- 
 ning north and south have by ordinance the right of way over those 
 traveling east and west, the fact that the plaintiff in one of the latter 
 
 "^Watts V. Montgomery Traction Co., 17s Ala. 102; 57 So. 471. 
 
 "^Citing Pluckwell v. Wilson, 5 Car. & P. 375. 
 
 '^Thompson, Com. on Negligence, 2d ed., sec. 420. 
 
 '''See the following motor vehicle cases : Nadeau v. Sawyer, 73 N. H. 70, 
 59 Atl. 369; Hannan v. St. Clair, 44 Colo. 134, 96 Pac. Repr. 822; Needy v. 
 Littlejohn, 137 Iowa 704, 115 N. W. 483; On Negligence, sth ed., sec. 104. 
 
 '"McFern v. Gardner, 121 Mo. App. i, 9; 97 S. W. 972. 
 
 '^Fitzgerald v. Boston & Northern St. Ry. Co., 214 Mass. 435; loi N. E. 
 1085. 
 
 709 
 
§ 1078 ACTlONABLi; NEGLIGENCE 
 
 Streets violated the ordinance by trying to pass in front of a vehicle on 
 the intersecting street is evidence for the jury of his negligence.*' 
 
 § 1078. Violation of law of road.®'* — The public highways belong 
 to the state. The state has a right to regulate the manner in which 
 they shall be used and when it prescribes rules if damage results in 
 consequence of a failure to observe such rules a prima facie case of 
 liability is made out. So if the defendant was driving .faster than the 
 law allows, or without lights as required or without giving the statu- 
 tory signal this is negligence per se.^^ 
 
 A failure to observe the law of the road resulting in injury is negli- 
 gence as matter of law in the absence of evidence rendering such a 
 course reasonably necessary as to avoid an obstruction or a part of 
 the roadway dangerously out of repair or a collision.^"" 
 
 The common law is stated in Pluckwell v. Wilson/ where it is said: 
 
 "A person was not bound to keep on the ordinary side of the 
 road ; but that if he did not do so, he was bound to use more 
 care and diligence, and keep a better lookout, that he might 
 avoid any concussion, than would be requisite if he were to 
 confine himself to the proper side of the road."^ 
 
 Particularly when an accident occurs after dark or in foggy weather, 
 and the party causing it was driving on the wrong side of the road.' 
 In Perlstein v. Am. Ex. Co.* it is said, where the driver was on the 
 "wrong" side of the road : 
 
 "This was evidence that he was acting in violation of the 
 statute which requires persons meeting each other as these perr 
 
 ssMcCarragher v. Proal, 114 N. Y. App. Div. 470, 100 N. Y. S. 208. 
 
 »8aSee further, ante, § 331 et seq. 
 
 s'Sheppard v. Johnson, 11 Ga. App. 280; 75 S. E. 34^. 
 
 loojohnson Heitman, 88 Wash. 595; 153 Pac. 331; Clarke v. Woop, 144 N. 
 Y. S. 595; IS9 App. Div. 437; 6 N. C. C. A. 314; 8 N. C. C. A. 381; Travers 
 V. Hartman, Del. Super. Ct. 1914; 92 Atl. 855; Watts v. Montgomery Trac- 
 tion Co., 175 Ala. 102; 57 So. 471, driving on wrong side of road. 
 
 15 Car & P. 375 (Eng.). 
 
 2See also Clark v. Van Vleck, 135 Iowa 194, i99, 112 N. W. 648; New York 
 Transp. Co. v. Garside, 157 Fed. Repr. 521, 525, 85 C. C. A. 285. 
 
 sSimmonson v. Stellenmerf, i Edmond's Sel. Cas. 194; Angell v. Lewis, 20 
 R. I. 391, 39 Atl. S2I. 
 
 *i77 Mass. 530, 59 N. E. I94- 
 
 710 
 
VIOLATION OF LAW § 10/8 
 
 sons were, to drive 'to the right of the middle of the travelled 
 part' of the road, and unexplained, it indicated negligence."" 
 
 An injury occurring contemporaneously with the violation of the 
 statute is evidence of negligence against the offender, but he is per- 
 mitted to introduce evidence to explain it away." 
 
 In Newcomb v. Boston Prot. Dept.^ the court say : 
 
 "It has often been held that a violation of law at the time of 
 an accident, by one connected with it, is evidence of his negli- 
 gence, but not conclusive." 
 
 An instruction that operation of an automobile contrary to statute is 
 negligence is not error for failure to state that the jury should have 
 regard to the width, traffic, and use of the highway.^ 
 
 In Com. V. Hawkins," it is said that "the fact that the act was done 
 in violation of a city ordinance was proper evidence for the consider- 
 ation of the jury on the question of negligence."^" 
 
 Steele v. Burkhardt,'^ was a case in which the plaintiff's horse was 
 standing at the side of the road in violation of a city ordinance. De- 
 
 5See also Arey v. City of Newton, 148 Mass. 598, 20 N. E. 327; Stevens v. 
 Boston Elv. Ry., 184 Mass. 476, 69 N. E. 338. 
 
 "For application of the doctrine of proximate cause, see §§ 1051 et seq., 1540. 
 
 Newcomb v. Boston Prot. Dept., 146 Mass. 600, 16 N. E. SS5; Randolph v. 
 O'Riordan, 155 Mass. 331, 29 N. E. 538; 338, quoted infra; Fahrney v. O'Donnell, 
 107 111. App. 608; Daniels v. Clegg, 28 Mich. 46; Brooks v. Hart, 14 N. H. iii ; Bur- 
 dick V. Worrall, 4 Barb. N: Y. 596 ; Knuppie v. Knickerbocker Ice Co., 84 N. Y. 
 488; Angell V. Lewis, 20 R. I. 39, 39 Atl. 521 ; Cooley on Torts, 3d ed., p. 1423; 
 Shearman & Redf. on Negligence, sth €d., sec. 104 ; State v. Larrabee, 104 Minn. 
 37, IIS N. W. 948; Donovan v. Lambert, 139 111. App. 532; Lawson v. Wells 
 Fargo, 113 N. Y. Supp. 647, App. Term. 1908; Fenn v. Clark, 11 Cal. App. 79, 
 103 P. 944; Wolfe V. Ives, 83 Conn. 174, 76 Atl. Repr. 526; Cecchi v. Lindsay, i 
 Boyce (Del.), 185, 75 Atl. Repr. 376; Anderson v. Sparks, 142 Wis. 398, 125 N. W. 
 Repr. 92s; Pfeiflfer v. Radke, 142 Wis. 512, 125 N. W. Repr. 934, 
 
 ^146 Mass. 600. 
 
 sDunbar v. Jones, 87 Conn. 253 ; 87 Atl. 787. 
 
 »iS7 Mass. SSI. 
 
 i°So also in Hall v. Ripley, 119 Mass. 135; McGourty v. DeMarco, 200 Mass. 
 Z7, 8s N. E. Repr. 891 ; O'Connor v. De Marco, 200 Mass. 57, 8s N. E. Repr. 
 891 ; State v. Moore, 129 Iowa Si4, 106 N. W. Repr. 16. 
 
 ^^^104 Mass. 59. 
 
 711 
 
§ 1079 ACTIONABLE NEGLIGENCe 
 
 fendant's team ran over the animal's foot. Chief Justice Chapman who 
 wrote the opinion says: 
 
 "The award * * * finds that the injury was occasioned 
 by negligence and want of due care in the defendant's servant; 
 * * * that there was no negligence on the part of the plain- 
 tiffs which contributed to the injury; * * * that, though 
 the plaintiff's team was standing there in violation of a city 
 ordinance, yet there was room for the defendant's team to pass 
 by, using due care ; and the only fault of the plaintiffs consisted 
 in the violation of the city ordinance. It is not found that this 
 violation contributed to the injury. It is said by Bigelow, C. J., 
 in Jones v. Andover, lo Allen 20, that 'in the case of a collision 
 of two vehicles on a highway, evidence that the plaintiif was 
 travelling on the left side of the road, in violation of the statute, 
 when he met the defendant, would be admissible to show negli- 
 gence." So the evidence that the plaintiffs' team was standing 
 in the street in violation of a city ordinance, was admissible to 
 show negligence on their part. It did show negligence in respect 
 to keeping the ordinance, but did not necessarily show negligence 
 that contributed to the injury, and notwithstanding this evidence, 
 it was competent to * * * find, as a fact, that towards the 
 defendant, the plaintiffs were guilty of no negligence, but were 
 careful to leave him ample room to pass." 
 
 In McCarragher v. Proal,^^ it was held that the plaintiff violated a 
 city ordinance in attempting to pass in front of defendant's brougham, 
 and the court should have charged the jury to take that fact into con- 
 sideration on the question of negligence. 
 
 The fact that the plaintiff when struck by a street car was violating 
 a city ordinance which forbade vehicles to turn to the left before passing 
 the centre of an intersecting street does not show negligence per se but 
 is evidence of negligence only.^^ 
 
 § 1079. Unlawful speed evidence of negligence.^* — There seems to 
 be some difference of opinion in the cases as to the exact effect of un- 
 lawful speed. In some jurisdictions it is said to be negligence per se^^ 
 
 12114 N. Y. App. Div. 470. 
 
 isDay V. Duluth St. Ry. Co., 121 Minn. 445, 141 N. W. 795; see Lehman v. 
 N. Y. City Ry. Co., 107 N. Y. Suppl. 561, App. Term 1907. 
 
 "Illegal act as proximate cause, see ante § 1069. 
 
 I'O'Dowd V. Newnham, 13 Ga. App. 220; 80 S. E. 36; Sheppard v. Johnson, 
 II Ga. App. 280, 7S S. E. 348; Anderson v. Kinnear, 80 Wash. 638, 141 Pac. 
 1151. 
 
 712 
 
VIOLATION OF LAW § 1079 
 
 or conclusive evidence of negligence/" Running in excess of the 
 statutory limit is per se negligent and it is error to instruct the jury that 
 in that event they are "authorized" to find for the plaintiff." 
 
 This rule seems too harsh and we believe the weight of authority 
 supports tlie proposition that unlawful speed is merely evidence of 
 negligence but that the question remains with the jury whether under 
 all the evidence the defendant was negligent.^' Evidence of an illegel 
 rate of speed by the defendant is evidence of negligence sufficient to 
 put him on his defence.^^ Breach of an ordinance regulating speed is 
 evidence of negligence, not negligence per se.'" 
 
 That an automobile is running from 15 to 25 miles an hour in direct 
 violation of statute is evidence of negligence per se and bars recovery 
 where the automobile to avoid a train at a crossing is turned off the 
 road and is injured.^^ 
 
 Such unlawful speed may be held prima facie evidence of negli- 
 gence,-^ but no hard and fast rule should be laid down. It is not rea- 
 sonable for example to hold the motorist conclusively guilty of negli- 
 gence just because he is driving sixteen miles an hour where the law 
 limits speed to fifteen. It is common experience that in many places 
 driving in excess of the legal rate may be the most careful conserva- 
 tism while in other places driving within the legal rate may be the 
 grossest carelessness. There is no reason why the courts should not 
 recognize these facts. However in any case the plaintiff cannot recover 
 where the injuries were received as the proximate result of driving at a 
 prohibited speed.^^ 
 
 So where a statute provides a fixed limit of speed of 20 miles an 
 hour a violation of this limit is negligence per se and if such violation 
 was the proximate cause of the injury the defendant is liable unless 
 the plaintiff was guilty of contributory negligence.^* 
 
 i«Scragg V. Sallee, 24 Cal. App. 133, 140 Pac. 706. 
 "O'Neil V. Redfield, 158 Iowa 246, 139 N. W. S5S- 
 
 i«Stern v. International Ry. Co., 167 App. Div. 503, 153 N. Y. S. 520. 9 N. 
 C. C. A. 949. 
 I'Meyer v. Creighton, 83 N. J. L. 749 ; 85 Atl. 344. 
 2»Scott V. Dow, 162 Mich. 636, 127 S. W. 712. 
 
 2iHouston Belt & Terminal Co. v. Rucker, Tex. Civ. A. 1914; 167 S. W. 301. 
 22Scott V. Dow, 162 Mich. 636, 127 N. W. 712. 
 23Bowles V. Lowery, 5 Ala. A. 555, 59 So. 696. 
 
§ I080 ACTIONABLE NH;GI,IGENCe 
 
 Where there is ample evidence to show that the defendant was run- 
 ning his car at an unlawful speed and that this was the direct cause 
 of the accident a jury cannot be instructed to find for the defendant.^'' 
 
 § 1080. Degree of care while violating law.^° — A driver who vio- 
 lates the law of the road or a city ordinance "must exercise a higher de- 
 gree of care than otherwise and if injury results from his failure that 
 failure will constitute negligence per seP 
 
 § 1081. Using best judgment though violating statute. — Where 
 the statute requires motorists to turn reasonably and to take other pre- 
 cautions if reasonably necessary, a driver may not be negligent if he 
 does not take all these precautions if he uses his best judgment and 
 adopts those which seem reasonable.^' 
 
 § 1082. The violation must be a proximate cause.^' — In any case 
 the violation whether by defendant or plaintiff, must as said by Chief 
 Justice Chapman (supra) have "contributed to the injury."^^^ In 
 Belleveau v. Lowe Supply Co.,^^*" defendant was driving his automobile 
 after dark, without numbers on his lamps as required by law. He ran 
 into a boy in front of him in the road. The trial judge excluded evi- 
 dence concerning the absence of numbers, on the ground that such vio- 
 lation was in no sense a proximate cause of the accident. The court, 
 by Mr. Justice Morton, in sustaining the trial judge on this point, say 
 that it cannot be contended : 
 
 "That the violation of law contributed, or could have been 
 found to contribute to the accident. * * * The judge well 
 may have thought that the connection between the absence of 
 numbers on the lamps and the accident was so remote as to render 
 the evidence of no value, and have excluded it on that ground." 
 
 § 1083. Prima facie case in this connection. — ^Where there has 
 been a failure to comply with the statute contemporaneously with the 
 
 2*Fox V. Barekman, 178 Ind. 572; 99 N. E. 989- 
 26Bartley v. Marino, Tex. Civ. App. ; 158 S. W. 1156. 
 28 See further ante, § 1069. 
 
 27Moy Quon v. Furuya Co., 81 Wash. 526, 143 Pac. 99. 
 28Beggs V. Clayton, 40 Utah 389, 121 Pac. 7. 
 29See § 1051 et seq., 1068-1073. 
 
 29apenn v. Clark, 11 Cal. App. 79, 103 P. 944; Case v. Clark, 83 Conn. 183, 
 76 Atl. Repr. 518. 
 2»b2oo Mass. 237, 86 N. E. 301. 
 
 714 
 
VIOLATION OF LAW § I084 
 
 occurrence of an injury, a prima facie case of negligence is made out, 
 providing that such failure was the proximate cause of such injury, and 
 the plaintiff's conduct did not contribute thereto.^"" 
 
 § 1084. Coasting illegally.'"— One coasting illegally on the high- 
 way cannot recover except on the humanitarian doctrine if the operator 
 of the automobile after seeing the danger could have avoided him.'^ 
 
 § 1085. Burden of proof to show lawful operation. — The burden 
 of proof is on a motorcyclist plaintiff in a collision to show that he was 
 lawfully operating his vehicle.'^ 
 
 § 1086. Unregistered vehicle on the highway. — The universal 
 rule in this country outside of a few states is that the mere fact 
 that a motor vehicle is not registered as required by law does not bar 
 a recovery for injury sustained in consequence of a defective high- 
 way, the operator not being a trespasser on the street,'^ neither will 
 the lack of registration have any effect on. other accident cases.'* 
 
 But under the Connecticut act of 191 1 no recovery can be had for in- 
 juries received by reason of the operation of an automobile not legally 
 registered and this covers a case where the automobile is falsely regis- 
 tered in a false name.'® 
 
 29cvVolfe V. Ives, 83 Conn. 174, 76 Atl. Repr. 526. 
 
 '"See further § 11 12. 
 
 'iRowe V, Hammond, 172 Mo. App. 203, 157 S. W. 880, 4 N. C. C. A. 14, 15, 
 S N. C. C. A. 142. 
 
 '^Scott V. Dow, 162 Mich. 636, 127 N. W. 712. 
 
 "Hemming v. New Haven, 82 Conn. 661 ; 74 Atl. 892. 
 
 '*Stroud V. Hartford, (Conn. igi6) ; 97 Atl. 336. 
 
 '^Shimoda v. Bundy, 24 Cal. App. 675, 142 Pac. 109, 9 N. C. C. A. 834 ; Atlantic 
 Coast Line R. Co. v. Weis, 63 Fla. 69, 74, 58 So. 641, 41 L. R. A. N. S. 307; Ann. 
 Cas. 1914 A. 126; Porter v. Jacksonville Electric Co., 64 Fla. 409, 60 So. 188, 
 4 N. C. C. A. 24; Hyde v. McCreery, 130 N. Y. S. 269, 145 App. Div. 729. 
 Unlicensed Automobile Colliding with Street Car. Use on street or highway 
 of automobile without license, see i N. C. C. A. 88-100, note. Unlicensed Au- 
 tomobile Rights and liabilities of operator of unlicensed or unregistered auto- 
 mobile where injuries received or inflicted. 4 N. C. C. A. 23-25, note. Absence 
 of vehicular license as affecting right of driver, owner or occupant, to recover 
 for injuries, and as affecting their liability for injuries inflicted upon others, note 
 9 N. C. C. A. 828-838, note. 
 
§ 1087 ACTlONABLi; NEGLIGENCE 
 
 The rule is based on the fact that the violation of law has no causal 
 connection with the accident/'^ or as stated in a recent Alabama 
 case, the failure to register is a mere condition and not a contributory 
 cause of the acident.^^ 
 
 A failure to register a car does not preclude recovery as this is a 
 breach of law of a collateral character having no effect on the negli- 
 gence of the parties. The court notes that the contrary rule obtains 
 only in Massachusetts and was there established by a divided court.^' 
 
 A statute requiring registration of motor vehicles by "owner or cus- 
 todian" and making it unlawful for any person to operate it unregis- 
 tered imposes no liability on the one not the owner running an unregis- 
 tered machine. The servant is not the custodian and neither is one 
 permitted to use the car temporarily.^' 
 
 § 1087. The Massachusetts rule as to unregistered vehicles. — 
 The Massachusetts court stands alone in holding an unregistered ma- 
 chine on the highway a trespasser for all purposes. The doctrine was 
 based on a strict construction of the statute requiring registration,*" 
 and is now too firmly established to be overturned except by the legis- 
 lature.*^ 
 
 The situation was somewhat improved by a recent statute*^ providing 
 that failure to register and properly equip a motor vehicle shall not 
 constitute a defence unless the person injured was the owner or oper- 
 ator or unless he knew or had reasonable cause to know that the law 
 was being violated. The court however refused to extend the doctrine 
 as logic required to the case of an unlicensed operator intimating dis- 
 satisfaction with the original decisions.*^ 
 
 ^'Birmingham Ry. Light & Power Co. v. .SItna Accident, etc., Co., 184 Ala. 
 601 ; 64 So. 44; Stovall V. Corey Highlands Land Co., 189 Ala. 576; 66 So. 577! 9 
 N. C. C. A. 833; Switzer v. Sherwood, 80 Wash. 19, 141 Pac. 181, 9 N. C. C. A. 
 
 834. 
 
 ^'Armstrong v. Sellers, 182 Ala. 582, 62 So. 28, 9 N. C. C. A. 836. 
 
 ssArmstead v. Lounsberry, Minn. (19:5); 151 N. W. 542. 
 
 89Armstrong v. Sellers, 182 Ala. 582, 62 So. 28, 9 N. C. C. A. 836. 
 
 *oDoherty v. Inhab. of Ayer, 197 Mass. 241, 83 N. E. 677; Dudley v. North- 
 ampton St. Ry., 202 Mass. 443, 89 N. E. 25 ; Feeley v. City of Melrose, 205 Mass. 
 329, 91 N. E. 306. 
 
 *iHolden v. McGillicuddy, 215 Mass. 563; 102 N. E. 923; 4 N. C. C. A. 23; 
 Crompton v. Williams, 216 Mass. 184; 103 N. E. 298, 9 N. C. C. A. 831. 
 
 *2St. 191S. s. 87. 
 
 *3See ante § 264. 
 
 716 
 
VIOLATION OF LAW § I087 
 
 One result of the rule is that in case of an accident the motorist can 
 recover only if he can prove the defendant guilty of wanton or reck- 
 less conduct/* but the mere fact that the motorman of an electric car 
 did not see the plaintiff's automobile as soon as he might have seen it and 
 did not stop his car as soon as it might have been stopped is not evi- 
 dence of wanton and wilful conduct to enable occupants of an unregis- 
 tered automobile to recover.*^ 
 
 The rule may be defended on the theory that it is of such supreme im- 
 portance that motor vehicles should be registered that the highest pen- 
 alty should be visited on those who fail but there is no more evidence 
 of any such legislative intent in the Massachusetts statute than in those 
 of other states. 
 
 The doctrine is of paramount importance to motorists, even to those 
 from out of the state who will find themselves remediless if they remain 
 in the state too long without registering their cars and become in- 
 volved in an accident.*^ A mere honest intention to comply with the 
 law is not enough as registration in the wrong name is equivalent to 
 no registration at all.*' 
 
 The court has extended the rule to cover innocent passengers in the 
 unregistered machine, which seems to be a reductio ad absurdem of the 
 original error,** which has however been corrected by the legislature*" 
 in this respect. Where an automobile is unregistered all its occupants 
 are trespassers on the highway and have no rights against other trav- 
 elers except to be protected from reckless or wanton injury."" 
 
 The rule covers statutory liabilities as well as actions at common law 
 and the court has held that a statute relating to liability of railroads for 
 injuries to travellers at railroad crossings does not apply to those not 
 lawfully on the road as travelers in an unregistered automobile,"^ as 
 
 **IyOve V. Worcester Consol. St. Ry. Co., 213 Mass. 137 ; 99 N. E. 969, 9 N. C. 
 C. A. 830; Dean v. Boston Elevated Ry. Co., 217 Mass. 49s, 105 N. E. 616; 
 9 N. C. C. A. 833. 
 
 *5Dean v. Boston Elevated Ry. Co., 217 Mass. 495; 105 N. E. 616; 9 N. C. C. A. 
 
 833 
 **Dudley v. Northampton Street Railway, 202 Mass, 443, 89 N. E. 25. 
 *TChase v. New York Cent. R. Co., 2o8TVIass. 137, 94 N. E. 377; See § 86. 
 *8Chase v. New York Central R. Co., 208 Mass. 137, 94 N. E. 377. 
 *»St. 191S, s. 87. 
 soDean v. Boston Elevated Ry. Co., 217 Mass. 495; 105 N. E. 616, 9 N. C. C. A. 
 
 833. 
 «iChase v. New York Central R. Co., 208 Mass. 137 ; 94 N. E. 377- 
 
 717 
 
§ I088 ACTIONABLE NEGLIGENCE 
 
 riding in an unregistered automobile is an unlawful act contributing 
 to the injury in case of collision with a railroad train at a crossing and 
 prohibits recovery under a statute designed for the protection of trav- 
 elers.=2 
 
 So the rule covers actions against cities and towns under the high- 
 way statutes for defective highways."' 
 
 The only concession to motorists is that where the owner or occupant 
 of the unregistered machine brings suit the burden remains on the de- 
 fendant to prove that it was unregistered.^* 
 
 A defendant sustains the burden of proving that an automobile was 
 unregistered on a certain date by summoning the clerk having charge 
 of the records of the highway commission which records show no regis- 
 tration at the date of the accident but registration at earlier and later 
 dates.=" 
 
 The highway commission now has authority to destroy its records"" 
 hence attorneys on taking a case should at once obtain certified copies 
 of all the data they may need for trial. 
 
 VIII. EMBRGENCIfiS. 
 
 § 1088. In general. 
 
 1089. Where the peril is the result of the plaintiff's own fault, 
 
 lopo. Where the situation of peril is caused by conditions arising through no 
 fault of plaintiff. 
 
 1091. Where the peril originates in the negligence of the defendant. 
 
 1092. Error of judgment. 
 
 1093. Taking wrong course. 
 
 1094. If different course would have prevented accident. 
 
 1095. Where either course might be careful. 
 
 1096. Rash apprehension of non-existent danger. 
 
 1097. Running in front of auto. 
 
 1098. Hesitating in front of auto. 
 
 1099. See-saw movements. 
 
 B^Chase v. New York Cent. R. Co., 208 Mass. 137; 94 N. E. 377. 
 
 s^Feeley v. Melrose, 205 Mass. 329, 91 N. E. 306 ; Doherty v. Ayer, 197 Mass. 
 241, 83 N. E. dlT, Holland v. Boston, 213 Mass. 560; 100 N. E. 1009. 
 
 5*Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677; Feeley v. Melrose, 205 Mass. 
 329, 91 N. E. 306; Dean v. Boston Elevated Ry. Co., 217 Mass. 495; 105 N. E. 
 616; 9 N. C. C. A. 833. 
 
 s^Dean v. Boston Elevated Ry. Co., 217 Mass. 495; 105 N. E. 616; 9 N. C. C. 
 
 A. 833. 
 68St. 191 1, s. 38. 
 
 718 
 
EMERGENCISS § 1088 
 
 1 100. Party disturbed mentally at time of accident, 
 
 lioi. Duty of driver in emergency. 
 
 1102. Duty of defendant to anticipate fear of plaintiff. 
 
 1103. Duty to hit animal rather than person. 
 
 1 104. Rescuers — Attempt to save life. 
 
 1105. Question for jury. 
 
 1106. Jury should consider that had no time to decide. 
 
 § 1088. In general. — It is a matter of common experience, that peo- 
 ple both in vehicles and on foot, more particularly the latter, become 
 frightened at an approaching machine, and in their panic do acts which 
 in calmer moments would not be considered."'' 
 
 Dr. Wharton says that, in such cases, "it is also a familiar rule that 
 a party cannot shield himself by setting up as a defence contributory 
 negligence, the result of fright or paralysis caused bv his own miscon- 
 duct."»« 
 
 In Ingalls v. Bills,"® the plaintiff, believing himself in peril jumped 
 from a coach and was injured. The defendants alleged contributory 
 negligence in jumping without necessity. The trial judge charged the 
 jury (affirmed in this particular, p. 15) : 
 
 "That if the plaintiff was placed in such a perilous situation, 
 in consequence of the defendants' failure to fulfil their obliga- 
 tions * * * that, as a prudent precaution, for the purpose of 
 self-preservation, he was induced to leap from the coach, the 
 owners were answerable for any injury he might have sustained 
 thereby, although it might now appear that he might, without 
 injury have retained his seat." 
 
 Nor does the rule differ when one person believing in the imminence 
 of the peril, does an act which results in injury to himself, and others 
 similarly situated do something else.'" 
 
 "^Garside v. N. Y. Transp. Co., 146 Fed. Repr. 588 C. C. 1906; Siraeone v. 
 Lindsey, 65 Atl. Repr. 778 (Del.), 1907; Shervirood v. New York C, etc., R., 105 
 N. Y. Supp. 547, 120 App. Div. 639. 
 
 Duty of operator in emergencies, see ante, § 256. 
 
 "^Wharton Crim. Law, loth ed., sec. 164; Sears v. Dennis, 105 Mass. 312; 
 Wright V. Mitchell (Penn. 1916), 97 Atl. 478, bicyclist in peril turning against 
 curb. 
 
 "^So Mass. I. 
 
 BoCody V. New York, etc., R., 151 Mass. 462, 24 N. E. 402. 
 
 719 
 
§ 1089 ACTIONABLE NEGI<IGBNCfi 
 
 In Gannon v. N. Y., Etc., R.," Mr. Justice Holmes says : 
 
 "We cannot say as matters of law, how frightened the plaintiff 
 was or ought to have been, or how great the peril of fire may 
 have seemed. There is no question before us of the degree of 
 firmness which the plaintiff was bound to exhibit, or, more ac- 
 curately, of the defendant's immunity from the consequences due 
 to unstable, nerves. Spade v. Lynn & Boston Railroad, 172 
 Mass. 488. If the peril seemed imminent, more hasty and violent 
 action was to be expected than would be natural at quieter mo- 
 ments, and such conduct is to be judiged with reference to the 
 stress of appearances at the time, and not the cool estimate of 
 the actual danger formed by outsiders after the event." (Citing 
 cases. )°^ 
 
 "In extremis" for the present purpose, may be taken in its literal 
 sense of in extremity, or more accurately, in the last extremity, and as 
 indicating a situation of peril when the motorist finds himself so circum- 
 stanced that imminent danger besets him of causing or receiving injury 
 from which he cannot escape, except by incurring great risks in some 
 other direction ; occasions when the situation is one of desperation, re- 
 quiring desperate measures on tlie fortunate outcome of which there 
 exists a chance of escape; times of sudden and unusual emergency 
 when upon the operator's decision depends the life of a fellow traveler 
 or the life of his passenger." 
 
 § 1089. Where the peril is the result of the plaintiff's own fault. 
 — An action for injury resulting in consequence of plaintiff's own act 
 will not be maintainable. Contributory negligence may be pleaded in 
 defence. Thus a man steps off the sidewalk into the roadway of a busy 
 city street, without making a fair use of his faculties and suddenly dis- 
 covers an automobile hard upon him. "In the terror and fright pro- 
 duced by the discovery, he acts erroneously and is killed" by the ma- 
 chine, whereas, if he had acted properly, he might have escaped injury. 
 
 6I173 Mass. 40, 52 N. E. 1075. 
 
 82See also Lund v. Tyngsboro, 65 Mass. 363 ; Linnehan v. Sampson, 126 Mass- 
 Si i; Southwestern R. v. Paulk, 24 Ga. 336; Galena, etc., R. v. Yarwood, 17 III. 
 S09; Twombly v. C. P. N., etc., R., 69 N. Y. 158; Ladd v. Foster, 31 Fed. Rep. 
 827 (Oregon); Saltonstall v. Stockton, Taney's Reps. (U. S. Cir.), 11, 22; 
 Weil V. Kreutzer, 134 Ky. 563, 121 S. W. 471; Navailles v. Dielman, 124 La. 
 421, So So. 449; Lawrence v. Fitchburg, etc., Ry., 201 Mass. 489, 87 N. E. 898. 
 See also cases cited, § 981c. 
 
 8'Pedestrians in emergencies, see 51 L. R. A. N. S. 1005, note 
 
 720 
 
EMERGENCIES § 1090 
 
 "Thus acting erroneously is contributory negligence because his own 
 negligence brought about the perilous situation.""* 
 
 § 1090. Where the situation of peril is caused by conditions aris- 
 ing through no fault of plaintiff.— "One who is placed in an apparent 
 situation of sudden or imminent danger without his own fault, is not, 
 as matter of law, guilty of contributory negligence, because he acts on 
 appearances of danger which does not in fact exist, or fails to make 
 the most judicious choice between the expedients which the situation 
 presents for seeking safety or because he might have escaped injury had 
 he acted differently.""^ 
 
 § 1091. Where the peril originates in the negligence of the de- 
 fendant. — ^Lord Ellenborough, in Jones v. Boyce,°° in charging the jury, 
 succinctly stated the whole law of this feature of the subject. He said : 
 
 "If I place a man in such a situation that he must adopt a 
 
 perilous alternative, I am responsible for the consequences." 
 * * * 
 
 Speaking of the plaintiff's act in jumping from the coach, he ob- 
 served : 
 
 "On the other hand, if the plaintiff's act resulted from a rash 
 apprehension of danger which did not exist, and the injury which 
 he sustained is to be attributed to rashness and imprudence, he 
 is not entitled to recover."^' 
 
 In Trowbridge v. Danville St. Car. Co.,°° Virginia Supreme Court of 
 Appeals, Mr. Justice Lacy, says : 
 
 "The sudden peril referred to in the authorities cited is such 
 as the defendant has caused.^^ If the defendant places a person 
 in sudden peril, etc., it is a very different matter than such sud- 
 den peril as was wholly unconnected with the defendant or any 
 
 "^Thompson, Com. on Negligence, 2d ed., sees. 195, 255 ; Shearman & Redf. 
 Va. 316, 66 S. E. Repr. 86. 
 
 ^'Thompson, Com. on Negligence, 2d ed., sees. 195, 255; Shearman & Redf. 
 on Negligence, Sth ed., sec. 89; Wharton on Negligence, 2d ed., sees. 94, 95. 
 
 «»! Starkie, 493. 
 
 "See Quigley v. Del., etc., C. Co., 142 Pa. St. 388, 21 Atl. 827; Feeny v. 
 Wabash R., 123 Mo, App. 420, 430, 99 S. W. 477; Thompson, Com. on Negli- 
 gence 2d ed., sec. 197. 
 
 8819 S. E. Repr. 780. 
 
 721 
 46 
 
§ lOgi ACTIONABI^U NEGLIGENCE 
 
 of his doings. If a person flies from a vehicle, and throws him- 
 self in a peril under- the wheels of a moving car so that he is 
 instantly injured, no cause of action lies against the defendant, 
 unless it has been guilty of negligence, and in such a case the 
 question of contributory negligence plays no important part in 
 the investigation, there being no foundation for the action until 
 the negligence of the defendant is established." 
 
 Chief Justice GilfiUan, in Mark Admr. v. St. Paul, Etc., R.,'" applies 
 the principle to the facts, which were that plaintiff's decedent, Hemberg, 
 was killed while he was crossing the railroad track. Judge Gilfillan 
 says: 
 
 "j£ * * * through defendant's negligence, the unex- 
 pected, sudden, and rapid approach of the car placed Hemberg, 
 without his fault, in a position of apparent peril, requiring in- 
 stant action to escape, and the peril and shouting * * * 
 frightened and bewildered him so that for the moment he was 
 incapable of deliberating and choosing the safest course to pur- 
 sue, the defendant cannot allege it as negligence in law on his 
 part so as to prevent his recovery, that lie adopted an unsafe 
 course if it were a natural result of the fright and bewilderment 
 so caused by defendant's negligence, such as might occur to one 
 acting with ordinary prudence. To allow defendant to do so 
 would be like permitting one to take advantage of his own 
 wrong." 
 
 In Haff V. Minneapolis & St. L. Ry.," District Judge Nelson, charg- 
 ing the jury, said: 
 
 "If the plaintiff was placed by want of care of the defendant 
 in such a position that at the moment, and in the face of a great 
 and threatening peril, he was obliged to choose between two 
 hazards, and he makes such choice as a person of ordinary pru- 
 dence and care, placed in the same situation, might make, and is 
 thereby injured the fact that if he had chosen the other hazard 
 he would have escaped injury does not relieve the defendant 
 from liability for its own negligence." 
 
 "When one is placed by the negligence of another in a situation of 
 peril, his attempt to escape danger, even by doing an act which is in 
 
 ^'Italics by the author of this book. 
 
 7030 Minn. 493, 495. 
 
 "14 Fed. Repr. SS8, S62. (Minn.). 
 
 722 
 
EMERGENCIES § 1092 
 
 itself dangerous, and from which injury resuhs, is not contributory 
 negligence, such as will prevent him from recovering."'^ 
 
 When a man driving a horse is placed in imminent peril by the 
 driver of an automobile the former is not bound to exercise the same 
 degree of care that a person of ordinary prudence would have exer- 
 cised. He may recover though he turns his horse in such a way as to 
 cause- injury though if he had done nothing he would not have been 
 injured. "When a man is borne down upon by a big seven passenger 
 automobile at the rate of 20 miles per hour "prudence" and "ordinary 
 care" are about the least of his assets." 
 
 § 1092. Error of judgment.'* — As commonly used, the expression 
 finds its aplication to instances of fright or terror, but it also applies to 
 that other and smaller class of cases where the error has occurred after 
 deliberation and in the exercise of care. In a large sense every con- 
 scious act is the result of an exercise of judgment. The alternative of 
 doing or not doing, is always presented, and the conclusion reached is 
 ordinarily justified or condemned according as the result is good or 
 evil. From a judicial standpoint, the expression is to be taken as hav- 
 ing restricted significance and as applying to a given situation. In such 
 case the exercise of judgment and the decision rest upon the doctrine of 
 due care. If one commits an honest error of judgment but overlooks 
 the dictates of common prduence, the rule of "mere error" will not 
 relieve him. Nor will ignorance avail as an excuse. One is "respon- 
 sible for what he ought to have known." What a man ought to know is 
 not less than those things which his environment ordinarily requires 
 for the preservation of his own safety and the prevention of injury to 
 others, and prudence demands the exercise of such knowledge. It is 
 rare that a situation presents itself where there has been an error of 
 judgment wholly free from the taint of negligence, when opportunity ex- 
 
 '^See the following motor vehicle cases: Thies v. Thomas, ^^ N. Y. Supp. 
 276 ; Mclntyre v. Orner, 166 Ind. 57, ^(> N. E. 7So ; McFern v. Gardner, 121 Mo. 
 App. I, 97 S. W. 972; Garside v. N. Y. Transp. Co., 146 Fed. Repr. 588, C. C. 
 1906; Simeone v. Lindsay, 65 Atl. Repr. 778 (Del.), 1907; Murphy v. Meacham, 
 1 Ga. App. iss, S7 S. E. 1046; Sherwood v. N. Y. C, etc., R., 120 N. Y. App. 
 Div. 639, IDS N. Y. S. S47 ; Navailles v. Dielman, 124 La. 421, 50 So. 449 ; Cecchi 
 V. Lindsay, 75 Atl. Repr. 376, i Boyce (Del.) 185. 
 
 See also cases cited in § 990 et seq; Mitchell v. Charleston L. & P. Co., 45 S. C. 
 146, 160. 
 
 "Carter v. Walker, Tex. Civ. App.; 165 S. W. 483. 
 
 "See § 1502. 
 
 723 
 
§ 1093 ACTIONABIvE NEGUGSNCE 
 
 isted for deliberation before the performance of the act. Such errors 
 usually ocur in moments of emergency and sudden alarm.'" 
 
 In Hoyt V. New York, L,. E. & W. R.," the court, by Mr. Justice 
 Potter say : 
 
 "The learned judge charged the jury: 'but mere error of 
 judgment * * * could not be called negligence.' This I 
 am disposed to think was erroneous. The judgment that is .re- 
 quired to be exercised is the judgment of a man of ordinary and 
 common prudence. The judgment of an imbecile or idiot will 
 not suffice unless such judgment accords with the standard above 
 indicated." 
 
 Honest mistake of judgment will not excuse, if it results from negli- 
 gence in observing and obeying any rule or precaution which it was the 
 party's duty to obey." 
 
 § 1093. Taking wrong course. — The mere fact that in peril the 
 person turned in the wrong direction does not convict him of negli- 
 gence,'" and that a pedestrian jumps the wrong way in an emergency 
 created by the defendant is not a defense." 
 
 So a person in a vehicle may be negligent in remaining in it while a 
 street car is bearing down on it,'" but not in jumping out in a moment 
 of peril,'^ but if he walks into danger, which in the observance of due 
 care he could avoid, he will be guilty of negligence.'^ 
 
 A pedestrian is not negligent in assuming that an automobile will 
 pass down a driveway in a direction contrary to the law of the road if 
 its motions are so rapid and sudden as to confuse him." 
 
 "See Shearman & Redf. on Negligence, Sth ed., sec. 87, for general observa- 
 tions on this subject. 
 
 TBiiS N. Y. 399, 406. 
 
 ^'See the following motor vehicle cases: Garside v. N. Y. Transp. Co., 146 
 Fed. Repr. 588, C. C. 1906; N. Y. Transp. Co. v. Garside, iS7 Fed. Repr. 521. 
 8s C. C. A. 285; Hause v. Lehigh Valley Transit Co., 38 Pa. Super. Ct. Reps. 
 614; Lawrence v. Fitchburg, etc., Ry., 201 Mass. 489, 87 N. E. 898; Com. v. 
 Cook, 8 Pa. Co. Ct. R., 486. 
 
 'SNarvailles v. Dielman, 124 La. 421, 50 So. 449 ; McFern v. Gardner, 121 Mo. 
 App. I, 97 S. W. 972. 
 
 T^Tobker v. Perkins, 86 Wash. 567; 150 Pac. 1138. 
 
 soLawrence v. Fitchburg, etc., Ry., 201 Mass. 489, 87 N. E. 898. 
 
 siMcIntyre v. Orner, 166 Ind. 57, 76 N. E. 750. 
 
 82Simeone v. Lindsay, Del. (1916) ; 65 Atl. 778. 
 
 8»Tooker v. Perkins, 86 Wash. 567; iSo Pac. 1138. 
 
 724 
 
EMSRGBNCIBS § 1094 
 
 § 1094. If different course would have prevented accident. — The 
 
 fact that even if the plaintiff might have escaped a peril in which he was 
 placed by acting in a different manner than he did does not bar him if 
 in seeking to avoid the peril he acted with ordinary care.** 
 
 § 1095. Where either course might be careful.— When two alter- 
 natives are presented to a traveler as modes of escape from collision 
 from an approaching vehicle either of which might be chosen by a 
 prudent person the law will not hold him guilty of negligence in tak- 
 ing either.'" 
 
 § 1069. Rash apprehension of non-existent danger. — But if the 
 
 act of the plaintiff resulted from rash apprehension of danger which 
 has no existence or from inordinate or unreasonable fear he cannot re- 
 cover where the defendant is not negligent. A man cannot recover for 
 damages inflicted by himself through wildly imagining that he was in 
 danger.** 
 
 § 1097. Running in front of auto. — The court may instruct the 
 jury that the plaintiff may recover if under the stress of sudden danger 
 she runs in front of the automobile although she claims she did not do 
 so where the defendant's evidence shows that she did.*^ 
 
 The court comments on the fact that pedestrians and especially wom- 
 en are liable to sudden panic upon the unexpected approach of an auto- 
 mobile. An automobile approaching pedestrians must be kept within 
 control so it may be promptly stopped. The sounding of a horn and 
 use of the cut out are well enough but do not embrace all the duties 
 of the driver.** 
 
 In a case of an emergency it is a question for the jury whether under 
 this emergency the plaintiff acted with prudence although he is then 
 acting in violation of law in riding in the centre of the street.*" 
 
 § 1098. Hesitating in front of auto. — ^A woman is not necessarily 
 guilty of contributory negligence when crossing the street when she sees 
 the defendant's car bearing down on her at such speed as to bewilder 
 
 s^Hodges V. Chambers, 171 Mo. App. 563, 154 S. W. 429. 
 s'Skene v. Graham, Maine (1916); 95 Atl. 950. 
 
 6'Carter v. Walker, Tex. Civ. App. ; 165 S. W. 483 ; Murphy v. Meacham, i 
 Ga. App. 15s, 57 S. E. 1046. 
 8'Raymond v. Hill, 168 Cal. 473, 143 Pac. 743. 
 ssRaymond v. Hill, 168 Cal. 473, 143 Pac. 743. 
 8»Sheffield v. Union Oil Co., 82 Wash. 386 ; 144 Pac. 529. 
 
§ 1099 ACTlONABte NSGtiGfiNCfi 
 
 and frighten her and hesitates as to which way she shall turn and while 
 hesitating is struck by the defendant.®" A woman who crouches or hesi- 
 tates as an automobile suddenly comes upon her round a corner may 
 recover.'^ 
 
 'X' § 1099- See-saw movements.'^ — Where a woman sees an auto- 
 ;ihobile coming towards her at high speed while she is crossing the 
 street and she steps first forward and then back this is not necessarily 
 contributory negligence although this is not the wisest thing she could 
 have done. Her action may have resulted from natural uncertainty in a 
 moment of extreme danger.** 
 
 § I lOO. Party disturbed mentally at time of accident. — ^Evidence 
 that just prior to the accident the defendant had refused to extend the 
 plaintiff's note is competent as showing that the plaintiff was disturbed 
 in his mind and therefore less careful than he otherwise would have 
 been.'* 
 
 § iioi. Duty of driver in emergency. — Emergencies like many 
 so-called "inevitable" or "unavoidable" accidents, are generally pre- 
 ventable ty the exercise of forethought, wisdom and caution. It is to 
 prevent the frequent occurrence of such perilous occasions, because of 
 lack in these qualiites, that states have set so high a standard of pre- 
 paredness for motor vehicle operators. It is manifest that such situ- 
 ations cannot be provided for with exactness and precision. They are 
 emergencies only because they are unusual and not anticipated. "Ques- 
 tions as to negligence and reasonable skill and care in every description 
 of business are necessarily questions of fact and belong to the jury, and 
 the court can do nothing more than give the rule by which they are to 
 be tried."»= 
 
 If a driver is justified by a sudden emergency in turning to the left 
 still after doing so he must have his car under control.'" 
 
 soSmith V. Coon, 89 Neb. 776, 132 N. W. 535. 
 
 wCok Motor Car Co. v. Ludorff, (Ind.) ; in N. E. 447. 
 
 s^See further, ante, § 361. 
 
 98Wescoat v. Decker, 85 N. J. L. 716; 90 Atl. 290; Weil v. Kreutzer, 134 Ky. 
 563; 121 S. W. 471, 24 L. R. A. N. S. 557- 
 
 9*Beekley v. Alexander, 77 N. H. 255 ; 90 Atl. 878. 
 
 oBChief Justice Taney in Saltonstall v. Stockton, Taney 16 (affirmed 13 
 Peters, 181). 
 
 98Carpenter v. Campbell Automobile Co., 159 Iowa 52, 140 N. W. 225; 4 N. 
 C. C. A. I. 
 
 726 
 
SMERGBNCIES § II02 
 
 The driver of an automobile may be found negligent when he "gets 
 rattled" and drives in a circuitous course off the traveled road and back 
 again hitting a boy on a bicycle." 
 
 Whether a driver of an automobile is negligent is for the jury where 
 he turned to the left off the street on to a sidewalk in a moment of ex- 
 citement to avoid hitting a reckless motorcyclist.'* 
 
 § 1 102. Duty of defendant to anticipate fear of plaintiff. — "It is 
 a matter of common knowledge that all adults of ordinary prudence do 
 not always immediately do the right thing or exercise the best judgment 
 in cases requiring quick thought and quick action. * * h= i^ yi^^ 
 of this habit * * * it is the opinion of the court that the driver 
 of an automobile in the public highways constantly traveled by pedes- 
 trians and teams and occupied by children of all ages should to estab- 
 lish due care exercise so high a degree of diligence in observing the 
 rights of a foot passenger or team when approaching them as to enable 
 him to control it or stop it if necessary to avoid a collision which cannot 
 be regarded as a pure acident or due to contributory negligence. 
 
 But it may be claimed that this rule of diligence renders the operation 
 of automobiles impracticable. If so, let the business stop."°° 
 
 § 1 103. Duty to hit animal rather than person.^"" — Where a large 
 dog suddenly darts out in front of a truck and the driver swerves in 
 avoiding the dog and hits pedestrians whom he had previously seen 
 the question of his due care is for the jury. The court in this case re- 
 marks : 
 
 "The law as to drivers of motor vehicles is not different from 
 that which governs oth^r persons. The standard required is 
 that of the reasonably prudent person under all the circum- 
 stances. If some unforseen emergency occurs, which naturally 
 would overpower the judgment of the ordinarily careful driver 
 of a motor vehicle, so that momentarily or for a time he is not 
 capable of intelligent action and as a result injury is inflicted 
 upon a third person, the driver is not negligent. The law does 
 not require supernatural poise or self control. But no one safely 
 
 s^Tschirley v. Lambert, 72 Wash. 70, 126 Pac. 80. 
 
 »8Carpenter v. Campbell Automobile Co., 159 Iowa 52, 140 N. W. 225, 4 N. 
 C. C. A. I. 
 'BSavoy V. McLeod, in Maine 234; 88 Atl. 721, 48 h. R. A. N. S. 971. 
 ^""Animals on highway, see post, § 1179 et seq. 
 
 727 
 
§ 1 1 04 ACTIONABLE neguge;ncs 
 
 can drive motor vehicles amid the distractions and dangers likely 
 to be encountered on the modern highway and street who is not 
 reasonably steady of nerve, quick in forming an opinion and 
 calm in executing a design. Whether the conduct of the defend- 
 ant's agent measured up to the standard of common caution for 
 the driver of a motor vehicle under all the circumstances, was 
 a question of fact. 
 
 "Manifestly due care cannot hesitate in preferring the safety 
 of human beings to that of dogs. It could not have been ruled 
 as a matter of law that the defendant's driver was in the exercise 
 of due care. The jury might have found that due care required 
 him to observe witii greater accuracy the direction of his car, to 
 determine not to deflect so much toward the right to avoid the 
 dog, and to hold his faculties under such control as not to-be dis- 
 concerted by the appearance of the dog. Whether the surprise 
 occasioned by the sally of the dog from the yard into the high- 
 way was such as reasonably to cause the driver of the truck to be 
 governed for the instant by impulse rather than by sound judg- 
 ment, whether it was a discomposing exigency or a usual peril 
 of the road, was a matter for the jury.^ 
 
 § 1 104. Rescuers — Attempt to save life. — Where a person in a 
 moment of emergency, actuated by motives of humanity, endea:vors to 
 save another from death or injury, the law does not require that he 
 "should have taken the wisest and most prudent course."^ 
 
 Even though injury results to himself he can maintain an action for 
 damages without being chargeable with contributory negligence or of 
 voluntarily encountering danger unnecessarily. In the case last cited 
 Mr. Justice Ames says : 
 
 "The emergency was sudden, allowing but little time for de- 
 liberation. Some allowance might well be made for the con- 
 fusion of the moment. Buel v. New York Central Railroad, 31 
 N. Y. 314. In Eckert v. Long Island Railroad, 43 N. Y. 502, a 
 case of the rescue of a child from being run over by an approach- 
 ing train, the court say that 'the law has so high a regard for 
 human life that it will not impute negligence to an effort to pre- 
 serve it, unless made under such circumstances as to constitute 
 rashness in the judgment of prudent persons.' The law does 
 not require cowardice or absolute inaction in such a state of 
 things. Neither does it require in such an emergency that the 
 
 iMassie v. Barker, (Mass. 1916), 113 N. E. 99. 
 sLinnehaii v. Sampson, 126 Mass. 511. 
 
 728 
 
EMERGENCIES § 1 104 
 
 plaintiff should have acted with entire self-possession, or that he 
 should have taken the wisest and most prudent course, with a 
 view to his own self-preservation, that could have been taken. 
 He certainly may take some risk upon himself, short of mere 
 rashness and recklessness. Mayo v. Boston & Maine Railroad, 
 104 Mass. 137."^ 
 
 "An attempt to save the life of one who is placed in peril, is deemed in 
 law an act of such merit that contributory negligence is not ascribed to 
 the actor injured or killed by such act," unless under circumstances of 
 great rashness, the question of his negligence being for the jury."* 
 And the doctrine similarly applies to cases of endangered property.' 
 In Pennsylvania Co. v. Langendorf,* L,angendorf jumped in front of 
 an approaching train and rescued a little girl four years old, who had 
 fallen upon the track, but was himself injured. The railroad company 
 was shown to be negligent, but contended "that it was negligence per se 
 for" L. "to throw himself in front of a moving train in his effort to 
 rescue the child from danger;" that he "voluntarily assumed the risk; 
 that the danger attending his act was apparent, and that however com- 
 mendable his conduct may have been when viewed from the standpoint 
 of humanity, the law will grant no relief for an injury thus brought 
 upon himself." Mr. Justice Bradbury, speaking for the Supreme Court, 
 says: 
 
 "It is apparent that" L "was under no legal obligation to 
 rescue the child; if he had chosen to stand by and permit the 
 approaching train to run over and kill the child, he would have 
 violated no rule of law, civil or criminal ; therefore what he did 
 was a voluntary act in the sense that he was under no obligation 
 to perform it. That, however, is not a conclusive test of the 
 question. * * * The act of" L "was not only lawful, but 
 it was highly commendable; nor was he in any legal sense re- 
 sponsible for the emergency that called for such prompt deci- 
 sion and rapid execution. * * * There was but the fraction 
 of a minute in which to resolve the act, or action would come too 
 late. Under these circumstances it would be unreasonable to 
 require a deliberate judgment from one in a position to afford 
 relief ; to require one so situated to stop and weigh the danger 
 
 ^See also Hawks v. Locke, 139 Mass. 205, i N. E. 543. 
 ^Thompson, Com. on Negligence, 2d ed., sees. 138, 198. 
 "Ibid. sec. 199. 
 •48 Ohio St. 316, 28 N. E. 172. 
 
§ II04 ACTIONABLE N]JGi:<lGeNCE 
 
 to himself of an attempt to rescue another and compare it with 
 that overhanging the person to be rescued, would be in effect 
 to deny the right of rescue altogether if the danger was immi- 
 nent. The attendant circumstances must be regarded, the alarm, 
 the excitement and confusion usually present on such occasions, 
 the uncertainty as to the proper move to be made, the prompt- 
 ness required, and the liability to mistake as to what is best to be 
 done, suggest that much latitude of judgment should be allowed 
 to those who are thus forced by the strongest dictates of hu- 
 manity to decide and act in sudden emergencies. And the doc- 
 trine that one who under those or similar circumstances springs 
 to the rescue of another, thereby encountering even great danger 
 to himself, is guilty of negligence per se is neither supported by 
 principle nor authority. * * * 
 
 "We think the court of common pleas did not err in leaving 
 it to the jury to determine, from all the circumstances surround- 
 ing the defendant in error at the time he sprang to the rescue, 
 whether the act was rash or not, and in saying to them that if 
 they found it was not rash, then it did not constitute contribu- 
 tory negligence. It is difficult, if not impossible, to lay down a 
 rule by which to determine the extent to which one may risk his 
 safety or his life in emergencies of this character and not be 
 charged with rashness, but the emergency may be such as to 
 warrant the assumption of a high degree of risk, and one so 
 situated may rightfully expect his acts to be construed in the 
 light afforded by all the circumstances that impelled him to 
 their commission, and that he would not be charged with con- 
 tributing to his own injury, so as to defeat a right of action, be- 
 cause the result showed that the risk he assumed was greater 
 than in the excitement oi the moment he had contemplated, or 
 in some other respect his judgment had been faulty."' 
 
 One is not guilty of contributory negligence who, seing a motor 
 truck running unattended towards some wagons with people in them 
 runs out to save their lives and is injured in attempting to guide the 
 truck so it will injure no one.' 
 
 ^The cases cited in the foregoing opinion are : Linnehan v. Sampson, 126 
 Mass. S06; Evansville & C. R. v. Hiatt, 17 Ind. 102, 1861; Penn. Co. v. Roney, 
 89 Ind. 453 ; Carroll v. Minnesota V. R., 14 Minn. 57, 1869 ; Donahue v. Wabash 
 St. L. & P. R., 83 Mo. 560; Eckert v. Long Island R., 43 N. Y. 502; Cottrill 
 V. Chicago M. & St. P. R., 47 Wis. 634; Beach on Contributory Negligence, 
 Sec. IS. p. 45 ; Pierce on Railroads, 329; Wharton on Negligence, 2d ed., sec. 
 314- 
 
 "American Express Co. v. Terry, 126 Md. 254, 94 Atl. 1026. 
 
EMERGENCIIiS § 1 105 
 
 § 1105. Question for jury. — Whether a person had or had not a 
 reasonable basis for his conclusion and act, is usually a question for the 
 jury. An extreme case may be determined by the court.' 
 
 The most that can be expected of the driver at such a time, and what 
 the public have a right to demand, is that he shall act promptly and as 
 reasonably as the circumstances will admit, upon the suggestions of a 
 cool and clear judgment, founded upon a sound knowledge of his care 
 and skill in managing it. 
 
 In Saltonstall v. Stockton,^" Chief Justice Taney, sitting in circuit, 
 says: 
 
 "In this case, the plaintiff does not allege that there was any 
 defect in the carriage, or harness, or horses ; he imputes the ac- 
 cident altogether to the misconduct of the driver. It is incum- 
 bent, therefore, upon the defendant to prove that the driver 
 possessed and exercised that degree of skill which competent 
 drivers, in like business, usually possess, and ought to possess, 
 in order to convey the passengers with safety and comfort ;^^ and 
 that he exercised at the time of the accident, the utmost prudence 
 and caution; for in performing a duty of this kind, where the lives 
 and health of so many citizens are entrusted to his care, the law 
 requires of him a high degree of caution and prudence, and 
 the least negligence on his part, which produces bodily injury 
 to the passenger will render the carrier liable."^^ 
 
 The question of what is best to be done in a moment of sudden 
 peril is a question for the jury and not for the court.^' 
 
 § iro6. Jury should consider that had no time to decide. — But 
 the jury should take into consideration the fact that the operator was 
 permitted no time in which to debate and decide the method of action. 
 In Hill V. Winslow,^* the judge on the trial, instructed the jury as fol- 
 lows: 
 
 "And we cannot ask of a man who is in extreme peril and 
 danger, whose life is at stake, that he shall stop and reflect as to 
 exactly every step that he shall take." 
 
 "Shannon v. Boston & A. R., 78 M'e. 52, 2 Atl. 6;8. 
 
 "Taney 16 (affirmed 13 Peters 181). 
 
 i^^The italics are by the author of this book. 
 
 ^^See Himmelwright v. Baker, 82 Kan. 569, 109 Pac. Repr. 178. 
 
 I'Byerly v. Metropolitan Etc. Ry. Co., 172 Mo. App. 470, 158 S. W. 413. 
 
 "118 Mass. 251. 
 
§ II07 ACTIONABI,!; NEGLIGENCE ^ 
 
 In Tozier v. Haverhill, Etc., Ry.," Chief Justice Knowlton says that 
 it is a — 
 
 "familiar principle that in determining whether one acts with 
 reasonable care in a sudden emergency, the fact that he is obliged 
 to act quickly and without opportunity for deliberation is to be 
 taken into account, and he is not to be deemed careless merely 
 because he failed to do that which would have been best as shown 
 by subsequent events." 
 
 In Ex-parte Stell,^" the United States Circuit Court, in excusing a 
 locomotive engineer in a case where a child was killed and finding that 
 he was guilty of no lack of prudence and foresight beforehand, say : 
 
 "True the engineer was bound to do all that was possible to 
 be done in immediate connection with the accident to prevent 
 injury. * * * it is not denied that the engineer, Robinson, 
 did every thing that was possible to save the child the moment 
 he saw it on the track."^' 
 
 IX. The Humanitarian Doctrine^' "Last Cwar Opportunity." 
 
 § 1 107. "Last clear opportunity.'' 
 
 1 108. Rule not applicable where defendant should have discovered plaintiff's 
 
 danger and did not. 
 
 1 109. Application of humanitarian doctrine. 
 
 1 1 10. Effect of statute. 
 
 mi. Will not relieve one of two joint tort feasors. 
 
 1 1 12. Plaintiff coasting illegally. 
 
 1 1 13. When plaintiff's negligence the more remote cause. 
 
 11 14. When there is opportunity to avoid result of plaintiff's negligence. 
 
 § 1 107. "Last clear opportunity." — This doctrine at first glance, 
 appears to run close to that of comparative negligence. Upon reflec- 
 tion it will be seen to fall within the rule that it is the duty of every 
 one to exercise due care to escape injury as well as to avoid inflict- 
 ing it. It has been thoroughly considered under this name and ap- 
 plied in California. The principle becomes pertinent in cases where 
 there is fault on the part of both parties, that is, when there has been 
 
 1B187 Mass. 179, 180, 72 N. E. 953. 
 i<'4 Hughes, 157 (Fed. Cases No. 13358). 
 
 "See also Jordan v. Am. Sight-Seeing Coach Co., 129 N. Y. App. Div. 313. 
 113 N. Y. S. 786. 
 i^This doctrine as applied to pedestrians, see post, § 1302. 
 
 732 
 
"last CI.BAR opportunity" § II07 
 
 a negligent act of one which might become the proximate cause of an 
 injury, but from the consequences of which both or either party 
 has a clear opportunity to escape by the exercise of proper dili- 
 gence subsequent to the original act of negligence, and before the 
 resulting injury occurs. Thus a person in the exercise of his right 
 to use the street, starts across a street railway track upon which a car 
 is approaching, perhaps at a carelessly rapid speed. The pedestrian 
 has a chance to avoid resulting injury by stepping back, or the motor- 
 man has a clear chance to stop his car. Under the doctrine stated, 
 whichever had the last clear opportunity but failed to avail himself 
 of it, would be responsible for the result. In Matterson v. Southern 
 Pac. Ry.,^' Presiding Justice Chipman says : 
 
 "The principle that he who has a clear opportunity of avoid- 
 ing an accident by the exercise of proper care to avoid injur- 
 ing another (or, we may add, avoid being injured), must do 
 so, is wise and humane. * * * 'This rule can never apply 
 to a case where * * * the negligence of the injured party 
 continued up to the very moment of injury,^" and was a con- 
 tributing and efficient cause thereof. For it is apparent by the 
 slightest care and effort of the deceased he could have put him- 
 self out of danger up to the last moment before he was struck.' " 
 
 "It is only when the negligence of one party is subsequent to 
 that of the other that the rule can be invoked," and not then 
 "where the plaintiff's negligence continued up to the very mo- 
 ment he was hurt, and where the exercise of reasonable dili- 
 gence before that time would have warned him of his danger 
 and enabled him to escape by his own effort."^^ 
 
 196 Cal. App. 318, 326, 92 P. loi. 
 
 ^oitalics by the author of this book. 
 
 See for the doctrine in general: Everett v. Los Angeles Ry., 115 Cal. 105, 43 
 P. 207, 46 P. 889 ; Sego V. Southern Pacific Co., 137 Cal. 405, 70 P. 279 ; O'Brien 
 V. McGlinchy, 68 Maine, 55; Pickett v. Wilmington, etc., R., 117 N. C. 616, 635, 
 Avery, J.; Thompson Com. on Negligence, 2d ed., sec. 240; Shearman & Redf. 
 on Negligence, 5th ed., sec. loi. See the following motor vehicle cases : King 
 V. Consol. Traction Co., 33 Pittsb. L. J. N. S. 138 ; Campbell v. St. Louis Transit 
 Co., 121 Mo. App. 406, 99 S. W. S8; Heath v. Cook, 68 Atl. Repr. 427 (R. I.) ; 
 Shaffer v. Coleman, 35 Pa. Superior Ct. 386; McGee v. Young, 132 Ga. 606, 64 
 S. E. 689; Hough V. St. Louis Car Co., 146 Mo. App. 58, 123 S. W. Repr. 83; 
 Cecchi V. Lindsay, i Boyce (Del.) 185, 75 Atl. Repr. 376; Himmelwright v. Baker, 
 82 Kans. 569, 109 Pac. Repr. 178 ; Burvant v. Wolfe, 126 La. 787, 52 So. Repr. 
 1025. 
 
 2iHimmelwright v. Baker, 82 Kans. 569; 109 Pac. 178. 
 
 733 
 
§ II08 ACTlONABIvE N^GLIGENCB 
 
 The last clear chance doctrine was properly invoked by a motor- 
 cyclist where an automobile operator coming in the opposite direction 
 turns suddenly across his path up an intersecting street.^^ 
 
 § 1108. Rule not applicable where defendant should have dis- 
 covered plaintiff's danger and did not. — 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,^^ and 
 an instruction on the last clear chance doctrine should differentiate 
 between a case where the defendant actually sees the plaintiff and 
 where he should have seen him.^* Hence it is error to rule that the 
 defendant is liable not only if their servants did in fact discover the 
 plaintiff's position before it was too late to stop the car but if they 
 by the exercise of ordinary care might have discovered the danger.^" 
 
 Where the driver of a taxicab did not see pedestrians at all there is 
 no opportunity for the application of the last clear chance doctrine.^" 
 
 The last clear chance rule only applies when the defendant is aware 
 of the fact that the plaintiff has put himself in a place of danger. 
 It is not enough that he should have known of the plaintiff's peril. A 
 motorman is not bound to know that an automobile approaching a 
 crossing is driven by persons who do not know of the approach of the 
 motor car. He has a right to assume that the automobile will stop 
 before coming on the track.^' 
 
 § 1 109. Application of humanitarian doctrine. — The driver of a 
 motor vehicle may invoke the "last clear chance" doctrine where he 
 drives slowly over a street car track, although he negligently fails to 
 lean out of the window to look before doing so.^' 
 
 An instruction that the party who has the last clear chance to avoid 
 the accident is solely responsible notwithstanding the previous negli- 
 gence of the other party is upheld when explained by other instruc- 
 tions.^' 
 
 ^^Goodman v. Bauer, (Ind. 1916), in N. E. 315. 
 23Wadley v. Dooly, 138 Ga. 275, 75 S. E. 153. 
 2*Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 Pac. gg. 
 2»Texas Traction Co. v. Wiley, Tex. Civ. App. ; 164 S. W. 1028. 
 28Laughlin v. Seattle Taxicab & Transfer Co., 84 Wash. 342 ; 146 Pac. 847. 
 27Thompson v. Los Angeles, etc., Ry. Co., 169 Cal. 748, 134 Pac. 709. 
 ^'Borders v. Metropolitan St. Car Co., 168 Mo. App. 172, 153 S. W. 72, S 
 N. C. C. A. 119. 
 2»Townsend v. Butterfield, 168 Cal. 564, 143 Pac. 760. 
 
 734 
 
"last clear opportunity" § mo 
 
 A motorman may be liable for running into a sight-seeing automobile 
 on the humanitarian doctrine."" 
 
 Even though a person may be guilty of negligence in placing himself 
 in a position of danger, still if his peril is discovered by the party from 
 whom he is in peril in time by the use of the means at his command, to 
 prevent the injury the latter will be liable in spite of the contributory 
 negligence of the injured person. Hence, an instruction that the plain- 
 tiff cannot recover if negligent though the driver might have avoided 
 the accident by ordinary care is erroneous."^ 
 
 § mo. Effect of statute. — ^A statute providing for Hability for 
 negUgence in running an automobile "unless the injury or death was 
 caused by the direct negligence of the injured party" does not annul 
 the humanitarian rule."^ 
 
 § I III. Will not relieve one of two joint tortfeasors. — The 
 doctrine of last clear chance cannot be applied as between two joint 
 tortfeasors to relieve one where the other is charged with having the 
 last right to avoid the accident, but the plaintiff may recover against 
 either or all."' 
 
 § 1 1 12. Plaintiff coasting illegally. — The fact that plaintiff is 
 coasting on the street in violation of a city ordinance is not 
 a reason why he cannot recover under the humanitarian doctrine that 
 the defendant driving an automobile had the last clear chance to avoid 
 the accident. The plaintiff was not a trespasser in the usual sense. 
 He was traveling on the highway where he had a right to be but 
 doing it in an unlawful manner. It was argued that the defendant 
 had no reason to anticipate the plaintiff's presence at that time and 
 place. But the court holds that the rights of plaintiff should be meas- 
 ured by the duty the chauffeur owed the public using the streets. For 
 him to run across an intersecting street at a speed of twenty miles an 
 hour without looking to right or left partakes of the nature of a 
 wanton and wilful act."* 
 
 2°Rush V. Metropolitan St. Ry. Co., 157 Mo. App. 504, 137 S. W. 1029. 
 '^King V. Brenham Automobile Co., Tex. Civ. App. ; 145 S. W. 278. 
 32Aronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641. 
 
 "'Shield V. F. Johnson & Son Co., 132 La. 773, 61 So. 787; 47 L. R. A. N. S. 
 1080 (note). 
 "^Rowe V. Hammond, 172 Mo. App. 203, 157 S. W. 880, 5 N. C. C. A. 127. 
 
 735 
 
§ 1 1 13 actionablB nbgugbnce 
 
 § 1 1 13. When plaintiff's negligence the more remote cause.'" — 
 
 Closely approaching the margin of comparative negligence, and to that 
 of "last clear opportunity," is the doctrine that the negligent plaintiff 
 may recover from the negligent defendant when the former's negli- 
 gence is the remote cause and the latter's is the proximate cause of the 
 injury sustained.^' 
 
 Chief Justice Fuller, in Washington, etc., R. v. Harmon's Admr.,°' 
 says: 
 
 "The rule applied to the instruction is that which obtains 
 where the plaintiff's negligence exposes him to the risk of in- 
 jury, and the defendant omits, after becoming aware of plain- 
 tiff's danger, to use ordinary care and diligence to avert the 
 consequences; and it is said whether a defendant is negligent 
 or not, in failing to adapt his conduct to a condition of things 
 caused by the negligence of the plaintiff, depends upon whether 
 the defendant had time and opportunity to ascertain and avoid 
 the injury." 
 
 The chief justice quotes the language of Mr. Justice Alvey in 
 Northern C. Ry. v. Geis,^' as follows : 
 
 "It must appear, either that the defendant might, by a 
 proper degree of caution, have avoided the consequences of the 
 injured party's neglect, or that the latter could not by ordinary 
 care have avoided the consequences of the defendant's negli- 
 gence. This, however, implies time for the one party to become 
 aware of the conduct and situation of the other, for neither 
 could be required to anticipate the other's negligence. But 
 where there is a concurrence of negligence of both in the pro- 
 duction of the injury to one of the parties, the causes are com- 
 mingled, and are regarded as equally' proximate to the effect 
 produced, and, therefore, not susceptible of apportionment." 
 
 '^See § 1052 et seq. 
 
 See the following motor vehicle cases: Hannigan v. Wright, S Pennew. 537 
 63 Atl. 234; Campbell v. St. Louis Transit Co., 121 Mo. App. 406, 99 S- W. 58; 
 Merklinger v. Lambert, 76 N. J. Law 806, 72 Atl. 119; Thomas v. Armitage, ili 
 Minn. 238, 126 N. W. 735. 
 
 S81 Thompson, Com. on Neg., 2d ed., sec. 85. 
 
 "147 U. S. S7I, 582, 13 S. Ct. 557- 
 
 8831 Md. 357. 
 
 736 
 
"last ci^ar opportunity" §1114 
 
 § 1 1 14. Where there is opportunity to avoid result o£ plain- 
 tiff's negligence.^* — Such a case involves the doctrine of the "last 
 clear opportunity" heretofore noted, and occurs when a person has 
 negligently exposed himself or his property to injury, and the de- 
 fendant saw, or the plaintiff saw, or either was under the duty of 
 seeing, or by the exercise of reasonable care ought to have seen, that 
 he or it was so exposed, and failed to exercise ordinary care to avoid 
 inflicting or receiving injury.*" 
 
 This rule applies with special vigor to cases where the defendant 
 was under the duty of exercising a high degree of care to discover the 
 dangerous situation of others. For example, the operator is driving 
 a heavy, powerful car, at a reasonable speed. He is the actor and the 
 person or animal in the roadway is passive, the operator is therefore 
 under a continuous duty of watchfulness. "The principles which 
 govern the conduct of men everywhere in the civilized social state de- 
 mand nothing less than this. To demand on his part the exercise of 
 what is called ordinary care" (according to the meaning of that term 
 as applied to motorists), "to the end that persons or animals who may 
 inadvertently get in front of him" shall "not be run over, is a prin- 
 ciple which is conservative of human life, and which every court of 
 justice ought consequently to acknowledge and apply. "*^ 
 
 The rule also covers cases where, by reasonable diligence, the de- 
 fendant ought to have seen plaintiff's perilous situation in season to 
 take measures to avert the disaster. Suppose a person is doing some- 
 thing of a nature that, "unless extreme caution is used is likely to 
 lead to mischief, in which case the law so far conforms to the dictates 
 of humanity and enforces the plain obligations of social and moral 
 duty, as to require the defendant to keep a constant lookout and to 
 exercise an unremitting diligence, which is no more than requiring him 
 to exercise a degree of care in proportion to the danger of others. And 
 this duty especially arises in favor of children, the aged and infirm, 
 
 '*See §1110, Last clear opportunity; also §§ 1329-1335, Ignorance of impending 
 danger. 
 
 *°Thompson, Com. on Negliegnce, 2d ed., sec. 222, et seq. ; Shearman & Redf. 
 on Negligence, sth ed., sees. 99, loi ; Omaha St. Ry. v. Larson, 70 Neb. 591, 97 
 N. W. 824. 
 
 *^Thompson, Com. on Negligence, 2d ed., sees. 232, 24s; Cecchi v. Lindsay, 
 75 Atl. 376, I Boyce (Del.) 185. 
 
 737 
 47 
 
§1114 ACTIONABLE NEGUGENCE 
 
 and, in general, in favor of those who, by reason of physical or mental 
 decrepitude, are incapable of caring for themselves."*^ 
 
 In Campbell v. St. Louis Transit Co.,*' Presiding Judge Bland says : 
 
 "If, as defendant's evidence tends to show, plaintiff was 
 guilty of some negligence in failing to stop his automobile be- 
 fore reaching the track, his negligence was prior in point of 
 time to that of defendant's motorman, and he is entitled to re- 
 cover, notwithstanding his prior negligence, if the motorman 
 saw, or by the exercise of ordinary care, could have seen plain- 
 tiff's position of peril in time to have stopped his car and avoided 
 the collision." 
 
 *2Thompson, Com. on Negligence, 2d ed., sec. 239. 
 
 *5i2i Mo. App. 406, 412. See the following motor vehicle cases : Mclntyre v. 
 Omer, 166 Ind. 57, 76 N. E. 750; Garside v. N. Y. Transp. Co., 146 Fed. Repr. 
 588, 1906; Strand v. Grinnell Automobile Co., 136 Iowa 68, 113 N. W. 488, 1907; 
 Weil V. Kreutzer, 134 Ky. 563, 121 S. W. 471. See also Thies v. Thomas, ^^ N. Y. 
 Supp. 276, 1902. 
 
 738 
 
CHAPTER XXXV. 
 
 FRIGHTENING HORSES.^ 
 I. Negligence by Operator of Automobile. 
 
 § liiS. Duty of operators in general. 
 
 1116. Equal rights on highway. 
 
 11 17. Where plaintiff a mere licensee. 
 
 11 18. Fright alone is not basis for liability. 
 
 1 1 19. Duty to keep watch for horses. 
 
 1120. Failing to stop when sees that horse is frightened. 
 H2I. Proceeding when horse shows no signs of fright. 
 
 1122. Duty to drive past. 
 
 1 123. Turning off road to avoid horses. 
 
 1 124. Approaching horse without warning. 
 
 1 125. Where no signal to stop or signs of fright. 
 
 1 126. Noise and appearance. 
 
 1 127. Duty to stop engine. 
 
 1128. Blowing horn negligently. 
 
 1 129. "Hollering" to driver of team which does not turn out. 
 
 1130. Driving too near to horses. 
 
 1131. Driving close to animal. 
 
 1 132. Driving on wrong side of road. 
 
 1 133. Splashing horse. 
 
 1 134. Escaping steam. 
 
 1135. Smoke. 
 
 1x36. Care in assisting driver of horse. 
 
 1 137. Broken down machine left on road. 
 
 1138. Speed as cause of fright. 
 
 1139. When unlawful speed did not frighten horses. 
 
 1 140. Keeping within maximum statutory speed may be insufficient. 
 
 1 141. Runaway as proximate result. 
 
 1 142. Causing horses to run into obstruction. 
 
 1 143. Where injury which did occur could not be anticipated. 
 
 1144. Horse frightened later- after being brought under control. 
 
 1145. Loss of value of horse by rendering him shy. 
 
 1146. When horse is "uncontrollable." 
 
 § 1 1 15. Duty of operators in general. — The motor vehicle laws 
 of substantially all the states provide for the equipment of automo- 
 
 iConcurrent negligence of drivers of various vehicles frightening horses, see 
 ante, § 1047 ; Proximate cause of frightening animals, see further, ante § 1065. 
 
§ 1 1 15 FRIGHTENING HORSBS 
 
 biles with a horn or bell for signaling, which, in a considerable number 
 of them, the motorist is required to sound in warning of his approach 
 and before overtaking or attempting to pass a fellow-traveler. Con- 
 cerning frightened animals, the language of all these statutes is similar 
 in effect to that of Massachusetts, which requires that : 
 
 "Every person operating a motor vehicle shall bring the 
 vehicle and the motor propelling it immediately to a stop when 
 approaching a horse or other draught animal being led, ridden 
 or driven, if such animal appears to be frightened, and if the 
 person in charge thereof shall signal so to do."^ 
 
 As applied to horse-drawn vehicles, seventeen of these states (see 
 list below)* declare the signal to be by raising the hand. New York 
 City traffic regulations, add raising the whip as alternative to that of 
 the hand. (Art. II, Sec. i.) 
 
 Notwithstanding there is a compliance with the statute and rules 
 of the road, if the conduct of the vehicle be such as is calculated to 
 terrify animals, the operator will be responsible for the ensuing in- 
 juries.^ 
 
 Because it is novel and of uncommon appearance and makes unusual 
 noises, the motorist owes a duty to other travelers carefully to control 
 and drive the machine along the road in such a way as to avoid caus- 
 ing needless injury. This duty requires him to take into account the 
 character of his vehicle, its general appearance, its tendency to frighten 
 horses, and all other pertinent considerations prompting the exercise 
 of unusual care and caution to prevent harm. The law of the road 
 does not tolerate any inconsiderate and reckless disregard of the rights 
 of other users of the highway.* 
 
 2Act of 1909, Chap. 534, sec. 14. 
 
 ♦Alabama, California, Delaware, Florida, Indiana, Iowa, Kentucky, Maine, 
 Maryland, Nebraska, New Hampshire, New Jersey, New York, Ohio, South 
 Carolina, South Dakota, Wisconsin. 
 
 ^Benjamin v. Holyoke St. Ry. Co., 160 Mass. 4, 35 N. E. 95; O'Brien v. Blue 
 Hill St. Ry., 186 Mass. 448, 71 N. E. 9Si ; Gifford v. Jennings, 190 Mass. 54, 76 
 N. E. 233. 
 
 *Ind. Springs Co. v. BroWn, 165 Ind. 465, 74 N. E. Repr. 6x6; Corey v. Havener, 
 182 Mass. 250, 6s N. E. 69 ; Knight v. Lanier, 69 N. Y. App. Div. 454, 74 N. Y. 
 S. 999; Shinkle v. McCullough, 116 Ky. 960, •J^ S. W. ig6; Christy v. Elliott, 216 
 111. 31, 74 N. E. 103s ; Murphy v. Wait, 102 N. Y. App. Div. 121, 92 N. Y. S. 253 ; 
 
 740 
 
NEGJvIGENCE BY OPERATOR § 1 1 IS 
 
 One using an automobile must use ordinary care to avoid fright- 
 ening horses.'' 
 
 Various acts of negligence claimed in frightening plaintifif's horse 
 were set forth and proper instructions given in Yttregard v. Young.* 
 
 What has been said concerning automobiles in this regard, applies 
 as well to motorcycles.' 
 
 In Ellis V. Lynn & Boston R. Co.,' the remarks of the court regard- 
 ing trolley cars and travelers generally, may be pertinently directed 
 to automobiles: 
 
 "Each may use the street, and each must use it with a rea- 
 sonable regard for the safety and convenience of the other. 
 The motorman is supposed to know that his car is likely to 
 frighten horses that are unaccustomed to the sight of such ve- 
 hicles, while most horses are easily taught after a time to pass 
 it without fear. It is his duty, if he sees a horse in the street 
 before him that is greatly frightened at the car, so as to en- 
 danger his driver or other persons in the street, to do what he 
 reasonably can in the management of his car to diminish the 
 fright of the horse, and it is also his duty in running the car to 
 look out and see whether, by frightening horses or otherwise, 
 he is putting in peril other persons lawfully using the street, 
 on foot or with teams. In this way the convenience and safety 
 of everybody can be promoted without serious detriment to any- 
 body. Of course, the owners and drivers of horses are required 
 at die same time, to use care in proportion to the danger to 
 which they are exposed." 
 
 Davis V. Maxwell, lo8 N. Y. App. Div. 128, 96 N. Y. S. 45 ; Mclntyre v. Orner, 
 4 L. R. A. N. S. 1130, 166 Ind. 57, 76 N. E. 750; Ward v. Meredith, 220 111. 66, "JT, N. 
 E. 118; Emerson v. Pearson, 74 N. H. 22, 64 Atl. 582; State v. Goodwin, 169 Ind. 
 265, 82 N. E. Repr. 459 ; Strand v. Grinnell, 1 36 Iowa 68, 1 13 N. W. Repr. 488 ; House 
 V. Cramer, 112 N. W. 3, 112 N. W. Repr. 374; Mahoney v. Maxfield, 102 Minit. 377, 
 14 L. R. A. N. S. 255, 1907 ; McCumrains v. State, 132 Wis. 236, 112 N. W. Repr. 25 ; 
 Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. Repr. 762 ; Horak v. Dougherty, 
 114 N. W. Repr. 883 (la.), 1908; Walkup v. Beebe, 139 Iowa 395, 116 N. W. Repr. 
 321 ; Fletcher v. Dixon, 107 Md. 402, 68 Atl. Repr. 875 ; Com. v. Kingsbury, 199 
 Mass. 542, 85 N. E. 848; Feeny v. Wabash R. R., 123 Mo. App. 427, 99 S. W. 477; 
 Hall V. Compton, 130 Mo. App. 67s, 108 S. W. 1122; McDonald v. Yoder, 80 
 Kas. 2S, loi P. 468; Sapp v. Hunter, 134 Mo. App. 685, 115 S. W. Repr. 463; 
 Webb V. Moore, 136 Ky. 708, 123 S. W. Repr. 152; Tudor v. Bowen, 152 N. C. 
 441, 67 S. E. Repr. lois (N. C). 
 
 ^McCray v. Sharpe, 188 Ala. 375, 66 So. 441. 
 
 ^Yttregard v. Young, ^^ Wash. 523, 137 Pac. 1043. 
 
 'Long V. Warlick, 148 N. C. 32, 61 S. E. 617. 
 
 8160 Mass. 341, 35 N. E. 1127. 
 
 741 
 
§ IIl6 FRIGHTENING HORSES 
 
 In Gifford v. Jennings,^ the court say, concerning an automobile : 
 
 "The jury might find that a horn should be sounded on over- 
 taking a horse * * * to give timely warning of the ap- 
 proach of this machine, vi^hich, in the kind of noise made by it, 
 as well as in other respects, is novel and therefore may be dan- 
 gerous, and that the defendant should have known this." 
 
 In Emerson, etc., Co. v. Pearson,^" it is said also of automobiles : 
 
 "The vehicles referred to, have recently come into use, and 
 have introduced a new and serious peril to travelers upon 
 highways. They are propelled by great power developed by 
 steam, electricity, or the explosion of gasoline vapor, and may 
 be driven with great speed. More or less noise attends their 
 operation, and when gasoline is used, a disagreeable odor re- 
 sults, both the noise and the odor have a tendency to frighten 
 horses." 
 
 § 1116. Equal rights on highway. — A driver of a horse has 
 not rights in the road superior to the rights of the driver of an auto- 
 mobile, as both have a right to go on the public highway and each is 
 restricted in the exercise of his rights by the corresponding rights of 
 the other.^^ 
 
 § 1 1 17. Where plaintiff a mere licensee. — Even though the plain- 
 tiff driving a horse on a private way is only a licensee the defendant 
 owes him a duty to refrain from carelessly or heedlessly in jurying 
 him.^^ 
 
 § II 18. Fright alone is not basis for liability.^' — The mere 
 fact that the plaintiff's horse was frightened and that the automobile 
 caused it to run away, unaccompanied by proof of negligent operation 
 by the motorist, does not render him liable.^* 
 
 The mere fact that the plaintiff's horse took fright at the machine 
 would not of itself give her a right of action. As long as an autoist 
 
 "igo Mass. 54, 76 N. E. 233. 
 
 "74 N. H. 22, 64 Atl. 583. 
 
 "Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128; Spangler v. Markley, 39 Pa. 
 Super. Ct. 351 ; Koenig v. Sproesser, 161 Wis. 8, 152 N. W. 473. Driver not an 
 insurer, see ante §§ 232, 944. 
 
 i^Knight V. Lanier, 69 N. Y. App. Div. 454, 74 N. Y. S. 999. 
 
 i»See further § 1733. Cresswell v. Wainwright, 154 Iowa 167, 134 N. W. 594. 
 
 i*Fletcher v. Dixon, 107 Md. 402, 68 Atl. 875. 
 
 742 
 
NEGLIGENCE BY OPERATOR § III8 
 
 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 horse.^° 
 
 The fact that a horse becomes frightened by a motor vehicle upon 
 the highway does not render the operator of such vehicle liable for 
 resulting injury as the horse has no paramount or exclusive right to 
 the road, and the fact that a horse takes fright at a vehicle run by a 
 new and improved method and smashes things does not of itself give 
 the injured party a cause of action.^" 
 
 In Sapp V. Hunter,^^ it is held a person driving a motor car on a 
 public thoroughfare is not an insurer of the safety of the occupants of 
 vehicles drawn by horses. In meeting or passing such vehicles, he 
 must employ care in keeping with the demands of the circumstances 
 of the situation, which means that he must not run at an excessive 
 rate of speed, must keep a vigilant watch, and at the first indication of 
 danger must stop his vehicle, and, if necessaiy and practicable, must 
 stop his motor. If, despite his observance of such reasonable caution 
 and regard for the rights of others, horses suddenly became so fright- 
 ened and unruly that they injure an occupant of the conveyance to 
 which they are hitched, the autoist cannot be held liable to respond in 
 damages for such injurious consequences. Under the principles and 
 rules of the common law, automobiles should be recognized as lawful 
 vehicles, and there is nothing in the statutes enacted in 1903 (sections 
 I, 2, pp. 162, 163, Laws 1903 (Ann. St. 1906, sees. 5028-1, 5028-2) 
 to alter their character. To entitle her to recover, it devolved on 
 plaintiff to plead and prove that some act or acts of negligence on the 
 part of defendant in the operation of the machine were the proximate 
 cause of the injury.^'^ 
 
 In Fletcher v. Dixon^* it is held, irrespective of the statute, one of 
 the primary duties which any one using the highways "owes others, 
 is to exercise reasonable care, and to bear in mind that he does not 
 have the exclusive right of user, whether he be a mere pedestrian, or 
 riding or driving a horse or using some modern vehicle, such as an auto- 
 
 "Daily v. Maxwell, 152 Mo. App. 415, i33 S. W. 351. 
 "Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128. 
 "134 Mo. App. 68s, 115 S. W. 463- 
 
 "aHall V. Compton, 130 Mo. App. 675, 108 S. W. 1122; O'Donnell v. O'Neil, 
 130 Mo. App. 360, 109 S. W. 815. 
 "107 Md. 420, 68 Atl. 87s. 
 
 743 
 
§ 1 119 FRIGHTENING HORSES 
 
 mobile." Citing Chief Justice Cooley in Macomber v. Nichols, 34 
 Mich. 277, 1876. 
 
 "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, the known tendency of any feature to frighten animals, etc." 
 Citing Indiana Springs Co. v. Brown, 165 Ind. 465, 1905, and Shinkle 
 v. McCullough, 116 Ky. 960, 1903 (both supra). 
 
 Drivers of horses assume the risk of their horses being frightened 
 at automobiles, so long as such vehicles are operated "in a reasonably 
 careful manner."^' 
 
 § 1119. Duty to keep viratch for horses. — The operator is re- 
 quired to take notice that automobiles are likely to scare horses along 
 the highway and he should keep a proper lookout not to cause any 
 injury to others which could be avoided by proper care in the use of 
 his machine.^" 
 
 It is the duty of the driver of an automobile to watch to see 
 whether a team of horses in front is becoming frightened. If so then 
 it would be defendant's duty to stop.^^ 
 
 The term "vigilant watch" in a statute enjoining on automobilists 
 the duty of keeping a "vigilant watch" for vehicles drawn by animals 
 includes not only the task of looking ahead for animal-drawn vehicles 
 but while approaching them to keep a sharp lookout for exhibitions 
 by such animals of fright or uneasiness.^^ 
 
 A driver who fails to keep "vigilant watch" for vehicles drawn by 
 animals is liable if the accident is the proximate result of such failure.^' 
 
 § 1 120. Failing to stop when sees that horse is frightened. — 
 
 The driver of an automobile should bring it to a full stop if he sees 
 or in the exercise of ordinary care should see that a horse he is ap- 
 proaching is frightened,^* and he must check his speed as soon as the 
 
 isDelfs V. Dunshee, 143 Iowa 381, 122 N. W. 236; Baugher v. Harman, no Va. 
 316, 66 S. E. 86. 
 
 ^oGaskins v. Hancock, 156 N. C. 56, 72 S. E. 80, i N. C. C. A. loi. 
 
 ^'Fields V. Sevier, 184 Mo. App. 685, 171 S. W. 610. 
 
 22Roberts v. Trunk, 179 Mo. App. 358, 166 S. W. 841. 
 
 23Roberts v. Trunk, 179 Mo. App. 358, 166 S. W. 841. 
 
 2*Walls V. Windsor, Del. Super. Ct. 92 Atl. 989; Christy v. Elliott, 216 111. 
 31, 74 N. E. 103s, I L. R. A. N. S. 215, 108 Am. St. Rep. 196; Ward v. Meredith, 
 
 744 
 
NBGLIGENCB BY OPERATOR § 1 121 
 
 appearance of the team indicates that it is dangerous to proceed,^" and 
 the claim that the motorist had no opportunity to look because it was 
 necessary for him to devote all his attention to his machine and the 
 road furnishes not a shadow of justification.^" 
 
 It is error to charge that the plaintiff could recover merely because 
 defendant failed to stop soon enough to prevent frightening the horses, 
 as if timely warning was given by horn then defendant's failure to 
 stop did not constitute negligence unless he saw or should have seen 
 that the horses were frightened.^' 
 
 Where the defendant fails to stop as the statute requires, it is not 
 proper to charge that this violation of statute is insufficient as the 
 horse might have become frightened at the automobile even if the 
 defendant had obeyed the law.^* 
 
 In Ward v. Meredith^' it was testified that the plaintiff's horse 
 showed fright when the automobile was within a dozen rods of it. 
 Defendant claimed tliat the statute did not require him to stop when 
 the horse actually became frightened, the language of the act being, 
 "about to become frightened." The court by Mr. Justice Wilkin, say 
 that "this criticism is, in our opinion entirely too refined." Such a 
 "construction would render it difficult, if not impossible, to give the 
 statute practical effect." 
 
 § 1 121. Proceeding when horse shows no signs of fright. — 
 Nor is it negligence to proceed in the absence of signs of fright on the 
 
 220 111. 66, ^^ N. E. ii8; Brinkman v.Pacholke, 41 Ind. App. 662, 84 N. E. 762; 
 Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 616, i L. R. A. N. S. 238 ; 
 Strand v. Grinnell Automobile Co., 136 Iowa 68, 13 N. W. 488; Raber v. Hinds, 
 133 Iowa 340, no N. W. 597; Shinkle v. McCulloch, 116 Ky. 960, 77 S. W. 196; 
 McDonald v. Yoder, 80 Kan. 25, loi Pac. 468 ; Cumberland Telephone and Tele- 
 graph Co. V. Yeiser, 141 Ky. 15, 131 S. W. 1049, 3i L- R- A. N. S. ii37; Towle 
 V. Morse, 103 Maine 250, 68 Atl. 1044; Murphy v. Wait, 102 N. Y. App. Div. 121, 
 92 N. Y. S. 252; Spangler v. Markley, 39 Pa. Super. Ct. 351. 
 
 25Sapp V. Hunter, 134 Mo. App. 685, 115 S. W. 463. 
 
 2«McIntyre v. Omer, 166 Ind. 57, 76 N. E. 75°. 
 
 "Fields V. Sevier, 184 Mo. App. 685, 171 S. W. 610. 
 
 28Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. 
 
 29220 111. 66, 69, n N. E. 118. 
 
 745 
 
§ 1 122 FRIGHTENING HORSES 
 
 part of an animal.^" It was held in an Iowa case that, if the defendant : 
 
 "Was stopping but briefly, it was not negligence per se not 
 to arrest the sparker * * * unless he saw that the horses 
 were frightened."^^ 
 
 If a horse shows no signs of fear on approach, the driver 
 of an automobile is justified in proceeding, and will not be 
 liable if the animal unexpectedly becomes unruly when it is 
 too late to avoid the injury, by stopping the machine.^^ 
 
 There is no evidence of negligence of the driver in scaring a mule 
 where the automobile approaches the mule without sounding its horn 
 at a speed of nine or ten miles an hour and passes within two or three 
 feet of the mule where the mule showed no signs of fright until the 
 automobile had passed him.^* 
 
 § II22. Duty to drive past. — ^The driver of an automobile must 
 use ordinary prudence when he discovers that a horse is frightened. 
 It is not necessarily his duty to stop, as the most prudent thing he can 
 do may be to get by with the automobile as quickly as possible to re- 
 move the cause of the fright.'* 
 
 "No fixed standard of care can be laid down as a matter of law, nor 
 can it be said what conduct will amount to negligence. * * * in 
 some cases this (reasonable) degree of care as to the operator might 
 require the machine to be stopped upon the first evidence of danger ; 
 in others, it might be necessary to slow down the speed; and yet 
 again, it might be more prudent to proceed at a high rate of speed, or 
 not lessen the speed at which the machine is running. Each case pre- 
 sents different conditions and situations. What would be ordinary 
 care in one case might be negligence in another. But whatever the 
 condition or situation, the driver of the automobile must at all times 
 and in all places observe ordinary care to avoid injury to persons or 
 travelers on the highway."^' 
 
 soLong V. Warlick, 148 N. C. 32, 61 S. E. 617; Sapp v. Hunter, iiS S. W. Repr. 
 463 (Mo.). 
 
 siHouse V. Cramer, 134 Iowa 374, 112 N. W. 3. 
 
 »2Hall V. Compton, 130 Mo. App. 675, 108 S. W. Repr. 1122. 
 
 ssShelton v. Hunter, 162 Ky. 531, 172 S. W. 950. 
 
 84Gue V. Wilson, 87 S. C. 144; 69 S. E. 99; Ellsworth v. Jarvis, 92 Kan. 89S, 
 141 Pac. 1135. 
 
 ssWebb V. Moore, 136 Ky. 708, 125 S. W. 152. 
 
 746 
 
NEGWGBNCE BY OPERATOR § 1 123 
 
 Under the language of the act, in some of the states the vehicle 
 is required to remain stationary "unless forward movement be neces- 
 sary to avoid accident or injury." In such cases it has been held that 
 it is for the chauffeur to determine whether such movement is neces- 
 sary. His conclusion is controlling, unless he acts unreasonably or in 
 bad faith, and will not be open to question afterward.^" 
 
 § 1 123. Turning off road to avoid horses. — It may not be due 
 care for the motorist when he sees that horses are frightened to keep 
 on with the intention of turning off on a widening of the road where 
 he turns back and stops with his engine going.'^ 
 
 § 1 124. Approaching horse without warning. — It may be neg- 
 ligence to run an automobile directly towards a horse at high speed 
 round a curve.^^ 
 
 So the defendant may be liable on evidence that he ran his auto- 
 mobile directly towards a horse which was frightened and caused him 
 to jump and upset the wagon.'' 
 
 If it was the automobile's sudden and close approach that caused 
 the fright of the team, then defendant could not escape liability because 
 the team did not manifest fright sooner. But in such case it would 
 be the close approach suddenly and without warning that would con- 
 stitute the negligence and not the failure to stop.*" 
 
 § 1 125. Where no signal to stop or signs of fright. — There can 
 be no liability when the automobile is operated carefully and the 
 operator is not induced to stop either by a signal or by signs of fright 
 in the horse.*^ 
 
 The jury may find that no negligence in the handling of an automo- 
 bile is shown where it did not before the accident approach nearer 
 than thirty-one steps to the plaintiff's team and on it becoming ap- 
 parent to the driver of the automobile that the plaintiff's mules were 
 frightened he stopped at once and then proceeded very slowly and 
 the plaintiff never signaled him to stop where the plaintiff's losing 
 
 s'McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. N. S. 1136; Mc- 
 Cummins v. State, 132 Wis. 236, 112 N. W. 25. 
 
 3'Towle V. Morse, 103 Maine, 250; 68 Atl. 1044. 
 
 ssStaley v. Forest, 157 Iowa 534, 138 N. W. 441. 
 
 ssBlackden v. Blaisdell, 113 Me. 567, 93 Atl. 540. 
 
 *<'39 Fields v. Sevier, 184 Mo. App. 685, 171 S. W. 610. 
 
 *iSimmons v. Lewis, (Iowa) ; 125 N. W. 194; Davis v. Maxwell, 108 N. Y. 
 App. Div. 128, 96 N. Y. Suppl. 45. 
 
 747 
 
§ 1 126 FRIGHTENING HORSES 
 
 control of his team and the overturning of the wagon were almost 
 simultaneous.*^ 
 
 § II 26. Noise and appearance. — Unnecessary noise is negli-' 
 gence,*^* and permitting or making unusual noises may amount 
 to negligence per se,*^ but there is no liability for injuries resulting 
 from the ordinary noises or appearance of the machine not caused by 
 excessive speed or the absence of due diligence.** 
 
 No negligence is shown where plaintiflf's horse is frightened by loud 
 and unusual noises by the defendant's automobile without evidence 
 that the noise was caused by any act of the defendant or that by the 
 exercise of care he might have prevented it.*° 
 
 § 1 127. Duty to stop engine. — It is a rule of law that the right 
 to operate an automobile carries with it the right to make the noises 
 incident to its operation. But the rule is subject to the limitation that 
 if the operator knows or ought to know that his machine has excited 
 a horse it is his duty to stop the engine,*" but if he is stopping at a 
 point but briefly and no horses appear to be frightened, it is not neg- 
 ligence to leave the engine running.*' 
 
 Where the defendant does stop his engine when the horse first indi- 
 cates fright he is not guilty of negligence.*^ 
 
 *2Riley v. Fisher, Tex. Civ. App.; 146 S. W. 581. 
 
 *2aSee ante § 986. 
 
 *3Tudor V. Bowen, 152 N. C. 441, 67 S. E. Repr. 1015 (N. C.) ; Fletcher v. 
 Dixon, 107 Md. 420, 68 Atl. 875 ; Mason v. West, 61 N. Y. App. Div. 40, 70 N. Y. 
 S. 478, reversing 65 N. Y. Suppl. 651, 31 Misc. 583; Carsey v. Hawkins, Tex. Civ. 
 App.; i6s S. W. 64; Noise Causing Runaway. Personal injuries caused by 
 horse taking fright at noise of automobile, i N. C. C. A. 107-118 note. 
 
 **Eichraan v. Buchheit, 128 Wis. 385, 391, 107 N. W. 325; House v. Cramer, 
 134 Iowa 374, 112 N. W. Repr. 3 (Iowa) ; Simmons v. Lewis, 125 N. W. Repr. 
 194 (Iowa) ; O'Donnell v. O'Neill, 130 Mo. App. 360, 109 S. W. 81S; Brown v. 
 Thorne, 61 Wash. 18, in Pac. 1047, 8 N. C. C. A. 1081. 
 
 *5Day V. Kelly, 50 Mon. 306, 146 Pac. 930. 
 
 "Brown v. Thorne, 61 Wash. 18; in Pac. 1047; 8 N. C. C. A. 1081; Ells- 
 worth V. Jarvis, 92 Kan. 895, 141 Pac. 1 135; Towle v. Morse, 103 Maine 250, 68 
 Atl. 1044; Mahoney v. Maxfield, 102 Minn. 377, 113 N. W. 904, 14 L,. R. A. N. S. 
 251; Sapp V. Hunter, 134 Mo. App. 685; 115 S. W. 463; Rochester v. Bull, 78 S- 
 C. 249, s8 S. E. 766- 
 
 *^House V. Cramer, 134 Iowa 374, 112 N. W. 3. 
 
 *8Long V. Warlick, 148 N. C. 32, 61 S. E. 617. 
 
 748 
 
NEGLIGENCE BY OPERATOR § 1 1 28 
 
 § 1 128. Blowing horn negligently. — Continuous sounding of 
 a gong or horn when it is obvious that an animal is frightened, "might 
 well be deemed to show carelessness."** 
 
 Blowing the horn must be considered in connection with speed. 
 Sounding it when going at twenty-five miles an hour might have a 
 different effect altogether from blowing it when traveling at ten miles 
 an hour.'"' 
 
 Negligence may be predicated on the operator's act in advancing 
 and blowing his horn which gave out a "loud, coarse, and alarming 
 noise."" 
 
 § 1129. "Hollering" to driver of team which does not turn 
 out. — ^The automobile driver is liable where he approaches a team 
 on a narrow road, and blows his horn and "hollers" to the driver of 
 the team to get out of the way and he pays no attention and the 
 defendant runs into him. It was the duty of the defendant to observe 
 the action of the team and even if it did not turn out at all or became 
 stationary, if he did not have room to pass he should have stopped his 
 car and requested the driver of the team to turn out rather than keep 
 on driving and come in collision with it.°^ 
 
 § 1 130. Driving too near to horses. — Where an automobile is 
 unnnecessarily driven within two feet of the horses, causing them to 
 run away, this is evidence from which a jury might find a violation 
 of the statute from which negligence could be inferred and also that 
 the automobile was carelesssly operated.'^ 
 
 § 1 131. Driving close to animal. — There is no negligence in 
 driving an automobile within three or four feet of a mule standing 
 in the street, unless done with intent to frighten the animal or unless 
 the driver discovers or should discover that running the machine close 
 to the animal will frighten it.^* 
 
 *»Benjamin v. Holyoke St. Ry., 160 Mass. 3, S, 3S N. E. 95 ; Citizens St. Ry. v. 
 Ivowe, 12 Ind. App. 47, 54. 39 N. E. 165. 
 
 ""Grant v. Armstrong and Bell Fuel Co., 55 Wash. 365, 104 Pac. 632. 
 
 "iBrinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762. 
 
 "^Savoy V. McLeod, in Maine 234; 88 Atl. 721 ; 48 L. R. A. N. S. 97i- 
 
 "^Trombley v. Stevens-Duryea Co., 206 Mass. 516; 92 N. E. 764, 2 N. C. C. A. 
 806, 8 N. C. C. A. 1087. 
 
 B^Shelton V. Hunter, 162 Ky. 531, 172 S. W. 950. 
 
 749 
 
§ 1 132 FRIGHTENING HORSBS 
 
 § 1 132. Driving on wrong side of road. — The defendant's act in 
 driving on the wrong side of the road may render him liable,^' but 
 not where it is not the cause of the accident.^* 
 
 It is not evidence of negligence that an automobile driver is driving 
 on the left side of the road where he does so to pass a horse on the 
 wrong side of the road and at once turns back in time to pass the 
 plaintiff's team on the right when the plaintiff's horses turn and run.'' 
 
 § 1 133. Splashing horse. — Evidence that a horse was frightened 
 by water splashing on him from an automobile is sufficient to au- 
 thorize recovery.^' 
 
 § 1 1 34. Escaping steam. — Evidence that the plaintiff was a pas- 
 senger in a buggy when a steam automobile approached at high speed 
 and stopped and escaping steam enveloped the horses and frightened 
 them, causing the accident, is sufficient to enable the plaintiff to re- 
 cover, although the defendant claimed that the steam could not have 
 escaped. There was evidence that the steam might have escaped 
 through defective packing or through the safety valve. The road was 
 narrow and wet and to approach and stop as the plaintiff claimed the 
 defendant did was evidence of negligence.^' 
 
 § 1135. Smoke. — Negligence may appear through the emission of 
 clouds of smoke frightening horses."" 
 
 § 1 136. Care in assisting driver of horse. — It is the duty of the 
 driver of an automobile on request of the driver of a team where the 
 horses are frightened to render him assistance and in doing so to use 
 reasonable care, and if he frightens the horse by slapping him or 
 otherwise this is negligence.'^ 
 
 § 1 137. Broken down machine left on road. — Where the de- 
 fendant's machine breaks down and is left by the side of the road and 
 frightens the plaintiff's horse, the defendant is not liable if it has 
 not been left there an unreasonable length of time."'' 
 
 s'Hannan v. St. Clair, 44 Col. 134; 96 Pac. 822. 
 "^Needy v. Littlejohn, 137 Iowa 704, llj N. W. 483. 
 s'Turner v. Bennett, 161 Iowa 379, 142 N. W. 999. 
 "spfeiffer v. Radke, 144 Wis. 430, 129 N. W. 413. 
 «i«Grahani v. Sly, 177 Mo. App. 348, 164 S. W. 136. 
 
 soNason v. West, 61 N. Y. App. Div. 40, reversing 6s N. Y. Suppl. 651, 31 
 Misc. 583; Reed v. Snyder, 38 Pa. Sup. Ct. 421. 
 siPekarck v. Myers, 159 Iowa 206; 140 N. W. 409. 
 62Davis V. Thornburg, 149 N. C. 233; 62 S. E. 1088. 
 
 750 
 
NEGI^IGENCE BY OPERATOR § 1 1 38 
 
 § 1 138. Speed as cause of fright. — Illegal or excessive speed may 
 be in itself the sufficient cause of frightening horses. 
 
 One driving past a horse and team faster than the statute permits 
 is liable for any injury as proximately results from the excessive 
 speed."' 
 
 A complaint showing that the horse became frightened by reason 
 of the carelessness and negligence of the driver in driving at a rate of 
 speed greater than six miles an hour shows the excessive speed was 
 the proximate cause of the accident."* 
 
 Under the Indiana statute it is negligence per se to drive an auto- 
 mobile past a horse at a rate of speed greater than six miles an hour."° 
 
 Instructions are correct which require the jury to find for the de- 
 fendant unless they believe that the automobile was being operated at a 
 rate of speed greater than was reasonably proper and by reason of 
 that fact the plaintiff's horse was frightened and injured."" 
 
 The defendant may be held liable on evidence that by reason in part 
 of exceeding the speed limit his machine came upon the plaintiff's team 
 without adequate warning, frightening his horses."^ 
 
 The driver of an automobile may be found guilty of negligence on 
 evidence that he saw the fright of mules on the road and did not stop 
 his machine but increased its speed and also its noise which frightened 
 the mules, causing the injuries complained of."* 
 
 § 1 139. When unlawful speed did not frighten horses. — In 
 this case the court holds that the defendant's unlawful speed could 
 not have had anything to do with frightening the plaintiff's horses, 
 which were standing facing a hitching post and only saw the automo- 
 bile as they backed round after they were frightened."' 
 
 § 1 140. Keeping within maximum statutory speed may be in- 
 sufficient. — A statute establishing a maximum rate of eight miles an 
 hour upon approaching a horse or other animals does not at all intend 
 that the maximum limit is always permissible. The operator is 
 
 «3Schaar v. Comforth, 128 Minn. 460, 151 N. W. 275, 8 N. C. C. A. 1079. 
 
 "*Carter v. Caldwell, Ind. (1916), 109 N. E. 355- 
 
 «5Carter v. Caldwell, Ind. 1916; 109 N. E. 3SS- 
 
 86East Tennessee Telephone Co. v. Cook, 155 Ky. 649, 160 S. W. 166. 
 
 "'Curry v. Fleer, 157 N. C. 16; 72 S. E. 626. 
 
 seCarsey v. Hawkins, Tex. 1914; 163 S. W. 586. 
 
 6'Cresswell v. Wainwright, IS4 Iowa 167, 134 N. W. 594. 
 
§ 1 141 IfRIGHTENING HORSES 
 
 charged with notice of things which he observes or could observe with 
 .proper care, having regard to the nature of the vehicle he is operating 
 and its tendency to frighten animals, and not infrequently it may be- 
 come his duty to move at a much slower speed and stop altogether if 
 conditions so require.'" 
 
 § 1 141. Runaway as proximate result. — A complaint charging 
 that defendant negligently ran an automobile along the street, causing 
 plaintiff's mule to run away, causing damage and as a proximate result 
 of the negligence plaintiff was damaged is good against demurrer.''^ 
 
 § 1 142. Causing horses to run into obstruction. — When an 
 automobile frightens a team causing them to run and they run into a 
 guy wire of a telephone company stretched four feet from the line of 
 the highway the guy wire is not the proximate cause of the injury 
 but it seems that the automobile is.'^ 
 
 § 1 143. Where injury which did occur could not be antici- 
 pated. — The driver of an automobile which frightens mules yoked to- 
 gether is liable although he could not anticipate the particular injury 
 which did occur where some injury might be anticipated under the 
 circumstances. '' 
 
 § 1 144. Horse frightened later after being brought under con- 
 trol. — Where an automobile frightens a horse which is brought under 
 control and ten or fifteen minutes later is again frightened and runs 
 away, the defendant is not the proximate cause of the accident. If the 
 horse had been held only in temporary control and by reason of his 
 fright had broken away from such control a different question would 
 be presented.''* 
 
 § 1 145. Loss of value of horse by rendering him shy. — ^The 
 damages for frightening horses may include loss of its value through 
 becoming so shy as to lose some of its commercial value. The rule 
 
 ^oCurry v. Fleer, 157 N. C. 16; 72 S. E. 626; Brinkman v. Pacholke, 41 Ind. 
 App. 662, 84 N. E. 762- 
 
 TiRoach V. Wright. Ala. 1916; 70 So. 271. 
 
 '^Eberhardt v. Glasgow Telephone Co. Mut. Tel. Assn., 91 Kan. 763, 139 Pac. 
 416. 
 
 ■^'Carsey v. Hawkins, Tex. 1914, 165 S. W. 64. 
 
 TiHerdman v. Zwart, 167 Iowa 500; 149 N. W. 631. 
 
negwgsnce by driver oe horses § 1146 
 
 that no damages can be recovered for fright alone does not apply to a 
 chattel." 
 
 § 1 146. Where horse is "uncontrollable." — Mr. Justice Chap- 
 man, in Titus V. Northbridge,'* says that the court are of opinion 
 that a horse "becomes actually uncontrollable" when : 
 
 "By reason of fright, disease, or viciousness the animal be- 
 comes so that his driver cannot stop him, or direct his course, 
 or exercise or regain control over his movements. * * * 
 But a horse is not to be considered uncontrollable that merely 
 shies or starts, or is momentarily not controlled by his driver."^' 
 
 II. NsGiiGENCB BY Drivsr of HoEses.'^' 
 
 § 1 147. In general. 
 
 1 148. Driving horse past automobile. 
 
 1 149. Where horse afraid of autos. 
 
 1150. Prior negligence in using unruly hor^e no bar. 
 
 1151. Character of horse. 
 
 1152. Leading horse. 
 
 1153. Where led horse swings across road. 
 
 1154. Driver of horse lacking strength and skill. 
 
 1155. Driving while asleep. 
 
 1156. Riding sideways on horse. 
 
 1 157. Horses left unattended. 
 
 1158. Horses turning suddenly. 
 
 1159. Remaining in carriage when horse frightened. 
 
 1 160. Horse running into auto. 
 
 1 161. When automobile backing. 
 
 § 1 147. In general. — It may be contributory negligence to drive 
 with a defective harness^' or to drive on the wrong side of the road,^" 
 but it is not negligent as a matter of law for a woman to drive in a 
 buggy with another woman and two children.*^ 
 
 The plaintiff may be negligent in driving his horse at high speed on 
 a dark night toward an automobile which he knows is just ahead of 
 
 '■sGillam v. Hogue, 39 Pa. Super. Ct. 547. 
 
 ^"97 Mass. 265. 
 
 "See also Ring v. City of Cohoes, 11 N. Y. 83, 86. 
 
 '^Negligent failure to signal, see post § 1176. 
 
 ^'Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762- 
 
 soDonovan v. Lambert, 139 111. App. 532, 1908. 
 
 siShaffer v. Coleman, 35 Pa. Super. Ct. 386. 
 
 7S3 
 48 
 
§ 1 148 BRIGHTENING HORSES 
 
 him, especially when he is holding a child in his lap so his view is 
 obstructed.*^ 
 
 An owner of an automobile may recover against an owner of a 
 horse who leaves the horse untied contrary to a city ordinance and 
 his running away may«be found the proximate result of the violation 
 of the ordinance.*^ 
 
 § 1 148. Driving horse past automobile. — One who is driving a 
 horse which becomes frightened at an automobile which has stopped 
 is guilty of negligence if he attempts to drive the horse by the auto- 
 mobile. The fact that the automobile driver is also negligent in not 
 stopping before he did is immaterial as not being the proximate cause 
 of the accident.** 
 
 A man driving a horse and leading another is not necessarily guilty 
 of contributory negligence in trying to take them by an automobile 
 standing in the road, although they are both frightened and there is an 
 unguarded culvert there. It is a question for the jury.*^ 
 
 § 1 149. Where horse afraid of auto. — If a horse is so easily 
 frightened that he cannot be controlled in passing automobiles the 
 owner drives him at his own risk. He should keep him off the high- 
 way or submit to the consequences,*" and cannot recover where the 
 horse is automobile shy and the automobilist does not know this;*' 
 but it is not contributory negligence to drive a horse on the highway 
 simply because he occasionally becomes frightened at an automobile.** 
 
 A livery stable keeper is not liable where he rents a horse where 
 he had no knowledge that it was automobile shy.*° 
 
 It is error to charge that one is guilty of negligence in driving a 
 mule on the highway where he would probably meet automobiles when 
 the plaintiff knew that the mule was afraid of one and would prob- 
 ably become unmanageable on meeting one. This instruction does not 
 
 s^Gipe V. Lynch, 155 Iowa 692, 136 N. W. 714. 
 
 ssHill V. Condon, (Ala. App.), 70 So. 208, 1916. 
 
 '^Northumberland Telephone & Telegraph Co. v. Yeiser, 141 Ky. 15, 131 S. W. 
 1049, 31 L. R. A. N. S. II37- 
 
 sBMaynard v. Westfield, 87 Vt. 532, 90 Atl. 504. 
 
 8»Bliss V. Walcott, 40 Mont. 491; 107 Pac. 423; Silberman v. Huyette, 22 
 Montg. Co. (Pa.) L. Reps. 39. 
 
 sTBaugher v. Harmon, no Va. 316, 66 S. E. 86. 
 
 **Spangler v. Markley, 39 Pa. Super. Ct. 351. 
 
 89Rump V. Bresnan, 160 Wis. 179, 151 N. W. 251, 8 N. C. C. A. 721. 
 
 754 
 
NEGLIGBNCi; BY DRIVUR OP HORSES § "SO 
 
 allow the jury to find for the plaintiff on the ground that the defendant 
 after discovering his perilous position failed to exercise ordinary care 
 to prevent injury. Furthermore, plaintiff had a right to drive on the 
 highway, although his mule was afraid of automobiles, as there was 
 no reason to think that he could or would not have time upon the 
 approach of an automobile to take measures to protect himself by 
 either leaving the road or by getting out of the buggy and holding 
 the animal until the danger was past.'" 
 
 § 1 1 50. Prior negligence in using unruly horse no bar. — If the 
 driver of an automobile discovers .the peril of one riding in a carriage 
 in time to have avoided injury to her, her previous negligence in going 
 upon the highway with an unruly horse will not bar her from recov- 
 ery."^ 
 
 § 1151. Character of horse. — Evidence of the character of the 
 horse is admissible on the issue as to the cause of the accident.®^ 
 
 In Maggi v. Curtis,"^ the court held that it was competent to prove 
 the misbehavior of a horse on occasions preceding that in issue, and 
 also subsequently thereto, the purpose being to show that such misbe- 
 havior was a habit or occasioned by viciousness, but the occurrence of 
 such similar acts must not be too remote. It largely depends upon the 
 discretion of the presiding judge as to whether the events showing 
 the habit of the animal are sufficiently proximate to have weight with 
 the jury.'* 
 
 It is also competent to show that a horse is a "reasonably gentle 
 animal.'''^ 
 
 Witnesses, whether experts or not, may give their knowledge of a 
 horse and its traits, but it is for the jury to judge as to whether the 
 horse is a "safe" horse, or wild or gentle. The opinions of witnesses 
 in this respect should not be admitted in evidence.'" 
 
 ""Butler V. Cabe, Ark. 1915, 171 S. W. 1190, L. R. A. 1915, c. 702. 
 
 siBlackwell v. McGrew, Tex. Civ. App., 141 S. W. 1058. 
 
 '^Donovan v. Lambert, 139 III. App. 532 ; Cain v. Wintersteen, Mo. App. 1910, 
 128 S. W. 274; Bliss V. Walcott, 40 Mont. 491, 117 Pac. 423. 
 
 "123 Mass. 535. 
 
 '*See also Popplewell v. Pierce, 64 Mass. 509 ; Todd v. Rowley, 90 Mass. 58 ; 
 Marble v. Rose, 124 Mass. 47; Johnstone v. Tuttle, 196 Mass. 112, 81 N. E. 886; 
 Lynch V. Kineth, 36 Wash. 368, 78 Pac. 923 ; Gifford v. Jennings, 190 Mass. 55, 76 
 N. E. 233 ; Donovan v. Lambert, 139 111. App. 532 ; Cain v. Wintersteen, 128 S. W. 
 274 (Mo. App. 1910) ; Bliss v. Walcott, 40 Mont. 491, 107 Pac. 423. 
 
 »5Davis V. Thornberg, 149 N. C. 233, 62 S. E. 1088. 
 
 ''See § 1683 et seq.j Evidence ; Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. 
 
 755 
 
§ 1 1 52 FRIGHTENING HORSES 
 
 § II 52. Leading horse. — Where plaintiff is leading a horse which 
 becomes frightened at an automobile and rears and strikes the plaintiff 
 and runs away, it is error to direct a verdict for the defendant for 
 contributory negligence on the ground that the plaintiff should have let 
 go of the horse.'' 
 
 One riding horseback and leading another unbroken horse ahead of 
 him is not negligent necessarily if the led horse becomes frightened 
 and runs to the left side of the road when the plaintiff rides over 
 after him instead of dropping the lariat by which he was holding him.'' 
 
 § 1 153. Where led horse swings across road. — The court af- 
 firms a finding for the defendant where the plaintiff was driving a 
 team of mules and was leading a saddle horse tied to the back band 
 of the right hand mule and the defendant coming from behind at- 
 tempted to drive his automobile by the right side of the mules when 
 the saddle horse suddenly, without having shown signs of fright, 
 swung round across the road and was injured.'' 
 
 § 1 1 54. Driver of horse lacking strength and skill. — Unskilful- 
 ness in driving and managing his horse, is. generally held to be admis- 
 sible in evidence on the question of contributory negligence. "The 
 driver of a horse not entirely gentle or manageable should use a degree 
 of caution commensurate with that circumstance, in passing an object 
 likely to frighten horses."^'" 
 
 9'Cusick V. Kinney, 164 Mich. 25, 128 N. W. 1089. 
 
 '^Townsend v. Butterfield, 168 Cal. 564, 143 Pac. 760; see Maynard v. West- 
 field, 87 Vt. 532, 90 Atl. S04. 
 
 »»Arrington v. Horner, 88 Kan. 817, 129 Pac. 1159. 
 
 loogee the following motor vehicle cases : Mason v. West, 31 Misc. 583, 65 N. 
 Y. Supp. 651; Mason v. West, 61 N. Y. App. Div. 40, 70 N. Y. S- 478; Knight 
 V. Lanier, 69 App. Div. 454, ^^ N. Y. S. looi; Shinkle v. McCuUough, 116 Ky. 960, 
 ^^ S. W. 196; Nadeau v. Sawyer, 73 N. H. 70, 59 Atl. 369; Silberman v. Huyette, 
 22 Mont. Co. Pa. L. Repr. 39; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 
 224; Indiana Springs v. Brown, 165 Ind. 465, 74 N. E. 615; Christy v. Elliott, 
 74 N. E. 103s, 108 Am. St. Rep. 196; Murphy v. Wait, 102 App. Div. 121, 92 N. 
 Y. S. 252 ; Davis v. Maxwell, 108 App. Div. 128, 96 N. Y. S. 45 ; Ward v. Mere- 
 dith, 220 111. 66, 'J^ N. E. 118; Mclntyre v. Orner, 166 Ind. 57, 76 N. E. 75°; 
 Eichman v. Buchheit, 128 Wis. 385, 108 N. W. 325 ; State v. Goodwin, 169 Ind. 
 26s, 82 N. E. 459; Raber v. Hinds, 133 Iowa 312, no N. W. 597; House v. 
 Cramer, 134 Iowa 374, 113 N. W. 488; Strand v. Grinnell Automobile Co., 136 
 Iowa 68, 115 N. W. 483; Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 
 762; Needy v. Littlejohn, 137 Iowa 704, 115 N. W. 483; Walkup v. Beebe, 139 
 
NEGLIGENCE BY DRIVER OF HORSES § 1 1 55 
 
 Where an automobile run slowly frightens a horse which becomes 
 unmanageable and due to lack of strength and skill of the driver runs 
 into the defendant's automobile which has stopped there is no liability 
 on the driver of the automobile.^ 
 
 § 1 155. Driving while asleep. — If a driver of a team was sleeping 
 or nodding he was guilty of contributory negligence and cannot recover 
 where his team stops suddenly and the defendant's automobile runs 
 into it from behind.^ 
 
 But a plaintifif who is. asleep while driving a horse may still recover 
 when hit by an automobile at night driven at high speed without lights.' 
 
 Evidence of the habits of deceased plaintiff as to sleeping while 
 driving upon the public highway and statements the deceased plaintiff 
 made during his lifetime in which he stated that he was in the habit 
 of going to sleep on the highway may be excluded where there are 
 eye witnesses of the accident.* 
 
 § 1 1 56. Riding sideways on horse. — ^The plaintiff cannot recover 
 if he is riding sideways on a horse and by reason thereof is unable 
 to control the horse unless the defendant realized his situation and 
 nevertheless drove recklessly upon him.° 
 
 § 1 157. Horses left unattended. — While the decisions are not 
 altogether harmonious in this matter, Dr. Thompson sums it up' by 
 saying : 
 
 "There is a general concurrence of judicial opinion to the 
 effect that leaving a horse untied and unattached in a public 
 street of a city, is at least prima facie evidence of negligence, 
 which takes the question of negligence to the jury, and casts 
 the burden of showing that the act was consistent with rea- 
 sonable care upon the owner or custodian of the animal." 
 
 In many localities the securing of animals left unattended is made 
 a matter of municipal ordinance or traffic regulation.'' 
 
 Iowa 395, 116 N. W. 321; Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875; Hall v. 
 Cotnpton, 130 Mo. App. 675, 126 S. W. 768; O'Donnell v. O'Neil, 130 Mo. App. 
 360, 109 S. W. 815; Shearman & Redf. on Negligence, Sth ed., sec. 379. 
 
 iTyler v. Hoover, 92 Neb. 221, 138 N. W. 128. 
 
 ^Grogitzki v. Detroit Ambulance Co., 186 Mich. 374, 152 N. W. 923. 
 
 'Scott V. O'Leary, 157 Iowa 222, 138 N. W. 512. 
 
 *Scott V. O'Leary, 157 Iowa 222, 138 N. W. 512. 
 
 'spurtado v. Bird, Cal. App. 1915, 146 Pac. 58. 
 
 "Com. on Negligence, 2d ed., sec. 1294. 
 
 'Boston Traffic Regulations; New York City Traffic Regulations. 
 
 757 
 
§ 1 1 58 FRIGHTENING HORSES 
 
 In such cases there is no room for speculation as to the prima facie 
 character of plaintiff's case, for the act being prohibited by express 
 law, falls within the class of negligence per se? 
 
 A verdict for the defendant will not be disturbed where it appears 
 that the plaintiff left his team standing unattended at night in the 
 middle of the road and the defendant driving an automobile slowly 
 round a curve did not see it as his lights did not shine on it till he was 
 upon it.® 
 
 Where a horse tied and left unattended is injured by an automobile 
 the burden of explaining the cause of the injury then rests on the de- 
 fendant." 
 
 § 1 1 58. Horses turning suddenly. — Where the driver tries to 
 crowd through a narrow space between the curb and a standing truck 
 and the horses of the latter turn it is a question for the jury whether 
 the accident resulted from the concurrent negligence of the truck 
 driver leaving his horses unattended and of the chauffeur in attempt- 
 ing to pass.^^ 
 
 § 1159. Remaining in carriage when horse frightened. — One 
 
 may be guilty of contributory negligence in electing to remain in a 
 carriage when the horse is frightened and trying to drive home.^- 
 
 § 1 160. Horse running into auto. — The owner of a horse and 
 wagon may be liable where it runs into a standing automobile, although 
 the injury was caused by the action of the horse alone, where the de- 
 fendant knew he was not suitable.^^ 
 
 The driver of a horse and team is not bound to anticipate that his 
 wagon will slew on the car tracks so that a ladder on the wagon will 
 
 ^The following cases are cited on the general subject: Marsland v. Murray, 
 148 Mass. 91, 18 N. E. 680; Broult v. Hanson, 158 Mass. 17, 32 N. E. 900; Phil- 
 lips V. De Wald, 79 Ga. 732, 7 S. E. 151 ; Potter v. N. Y. etc. R., 48 N. Y. Supp. 
 446, 22 Misc. 10; Henry v. Klopfer, 147 Pa. St. 178, 23 Atl. Z37\ Jones v. Belt, 
 8 Houst. (Del.), 562, 32 Atl. Repr. 723; Thompson, Com. on Negligence, 2d ed., 
 129s. 
 
 sWade V. Brents, 161 Ky. 1607, 171 S. W. 188. 
 
 ^"Whitwell V. Wolf 127 Minn. 529, 149 N. W. 299; James v. Morten, 139 
 N. Y. S. 941, 79 Misc. 255. 
 
 iiRodenburg v. Clinton Auto & Garage Co., 84 N. J. 545, 87 Atl. 71. 
 
 i^'Herdman v. Zwart, 167 Iowa 500, 149 N. W. 631. 
 
 I'Wells Fargo & Co. Express v. Keeler, Tex. Civ. App., 173 S. W. 926. 
 
 758 
 
NEGLIGENCE BY DRIVER OF HORSES § I161 
 
 swing out and hit the driver of a passing wagon, frightening the horse 
 which ran away and hit the plaintiff's automobile.^* 
 
 § 1 161. When automobile backing.^' — A driver of a team is not 
 as matter of law guilty of contributory negligence where he does not 
 discover that an automobile is backing towards him till it is within 
 ten feet of his horse when he yells.^* 
 
 i^Tooker v. Fowler & Sellars Co., 132 N. Y. S. 213, 147 App. Div. 164. 
 i^Negligence in backing automobile, see further, §§ 1190-1192. 
 I'Brickell v. Williams, 180 Mo. App. 572, 167 S. W. 607. 
 
 759 
 
CHAPTER XXXVI. 
 
 SIGNALS.i 
 I. Horn or Other S'ignai, by Deivsr op Automobii,e. 
 
 § 1 162. Duty to sound horn. 
 
 1 163. Failure to sound horn. 
 
 1 164. When failure to sound horn is not negligence. 
 Ii6s. Blowing horn does not give right of way. 
 
 1 166. Passing standing team. 
 
 1 167. Statute requiring signal on approaching horses is for protection of 
 persons driving them. 
 
 1 168. When another does not hear horn. 
 
 1169. Signal that about to start automobile. 
 
 1 170. Evidence as to sounding horn. 
 
 § 1162. Duty to sound horn. — It is for the jury to say whether the 
 use of a horn is necessary in the exercise of due diligence by a driver.^ 
 
 Where there is no statutory rule reqtiiring the driver of an automo- 
 bile to sound his horn on approaching the crossing of a public street 
 he has an obligation at common law to sound the horn after he saw or 
 might have seen the pedestrian in the street.^ 
 
 An operator of an automobile may be negligent in driving down a 
 narrow and obstructed street at dusk without blowing his horn running 
 over a little boy who is running across the street,* or in turning a corner 
 suddenly without warning.^ 
 
 A provision in a motor vehicle act requiring every motor vehicle to 
 be equipped with a suitable bell, horn or other signal device by implica- 
 tion requires the use of such signals on proper occasions.® 
 
 § 1 163. Failure to sound horn. — A driver is negligent in rounding 
 a corner at high speed where the view is obstructed and steering 
 
 ^Signals frightening animals, see further § 1128. 
 
 20'Dowd V. Newnham, 80 g. E. 36, 13 Ga. App. 220. 
 
 ^Clark V. General Motor Car Co., 177 Mo. App. 623 ; 160 S. W. 576. 
 
 *Ayers v. Ratshesky, 213 Mass. 589; loi N. E. 78, 7 N. C. C. A. 125. 
 
 sBuscher v. N. Y. Transf. Co., 106 N. Y. App., Div. 493, 94 N. Y. S. 798. 
 
 oporgy V. Rutledge, 167 Ky. 182. 
 
 760 
 
BY DRIVER 01? AUTOMOBILE § 1 1 64 
 
 straight for a horse without warning/ and coming up from behind 
 without warning may be negligent.* 
 
 Evidence that defendant in approaching gave no signals as required 
 by law is competent on the question of his negligence.^ 
 
 § 1164. When failure to sound horn is not negligence. — Failure to 
 sound horn is not an act of negligence towards one who sees the car 
 approaching,^" and the ommission to sound a horn in passing a team 
 does not show negligence where it is not contended that the plaintiff 
 was relying on such a signal and was misled by it not being given, and 
 it cannot be said that the omission to sound it was in any way the cause 
 of the accident.^^ 
 
 So the failure of the defendant to sound his horn cannot be the cause 
 of frightening the plaintiff's horses where the horses heads were turned 
 in another direction.^^ 
 
 § 1165. Blowing horn does not give right of way. — Even the loud 
 blowing of a horn will not give a motor vehicle any exclusive right of 
 way or relieve the driver from the duty of proceeding at a reasonable 
 rate of speed and of keeping his car in control in a busy thoroughfare.^^ 
 
 § 1166. Passing standing team. — The Maryland statute of 1912 
 does not require the sounding of a horn in passing a team standing in 
 the road." 
 
 § 1167. Statute requiring signal on approaching horses is for 
 protection of persons driving them. — A section requiring signal to be 
 given upon approaching a pedestrian or horses being ridden or driven 
 does not refer to pedestrians alone but is also intended for the protec- 
 tion of persons riding or driving horses.^' 
 
 § 1 168. When another does not hear horn. — The driver when he 
 sees that one ahead does not hear his horn is bound to slow down and 
 even stop if necessary.^" 
 
 'Daily v. Maxwell, 152 Mo. App. 41S, I33 S. W. 3Si- 
 
 sGifford v. Jennings, 190 Mass. 54. 76 N. E. 233. 
 
 'Bouma v. Dubois, 169 Mich. 422, 135 N. W. 322. 
 
 "Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540. 
 
 "Sullivan v. Smith, 123 Md. S46; 91 Atl. 4S6, 8 N. C. C. A. 378. 
 
 "Cresswell v. Wainwright, 154 Iowa 167, 134 N. W. 594- 
 
 isRasmussen v. Whipple, 211 Mass. 546; 98 N. E. 592- 
 
 "Sullivan v. Smith, 123 Md. 546, 9i Atl. 4S6, 8 N. C. C. A. 378. 
 
 "Holland v. State, 11 Ga. App. 769, 76 S. E. 104 
 
 "Furtado v. Bird, Cal., 146 Pac. 58, Cal. App. ipiS- 
 
 761 
 
§ 1 1 69 SIGNALS 
 
 § 1 169. Signal that about to start automobile. — ^The driver of an 
 automobile may be negligent in failing to warn one driving a horse by 
 the automobile that he is about to start it." 
 
 § 1 1 70. Evidence as to sounding horn. — It may be found that the 
 horn was not sounded on evidence of those who could have heard it,'' 
 but the testimony of witnesses who say they heard the automobile horn 
 is of much more weight than those who merely say they did not hear 
 it." 
 
 II. SiGNAi, BY Driver of Horss. 
 
 § 1 171. What is sufficient signal. 
 
 1 172. What amounts to driving. 
 
 1 173. Signal by one not the driver. 
 
 1 174. Duty irrespective of signal. 
 117s. Failure to heed signal to stop. 
 
 1 176. Stopping on signal insufficient. 
 
 1 177. Negligent failure to signal. 
 
 § 1 171. What is sufficient signal. — ^The statutory signal to stop 
 given by the driver of a horse may be by raising the hand.^" 
 
 It is competent in an action for running into the plaintiff's team to 
 show that the plaintiff and her husband signaled to the defendant to 
 stop by raising hands, and the husband by standing up and swinging his 
 hat. This bears on the negligence of the driver and is part of the res 
 gestae.^' 
 
 Where the statute requires the driver "if requested by signal or 
 otherwise by the driver of such horse" to stop, a call "lookout" is not 
 a signal or request to stop. Such expressions as "halt," "keep back," 
 "hold on," "stay there," "stand still," "pause," and "stop" might be 
 used.^^ 
 
 i^Fisher v. McGrath, 112 Minn. 436, 128 N. W. 579. 
 isBohririger v. Campbell, 137 N. Y. S. 241. iS4 App. Div. 879. 
 "Campbell v. Walker, 2 Boyce 41, Del. Super. Ct. 78 Atl. 601. 
 ■zoHorak v. Dougherty, Iowa 1908, 114 N. W. 883, 8 N. C. C. A. 1079. 
 "Ballard v. Durr, 165 Ky. 632, 177 S. W. 445- 
 "Sterner v. Issitt, 89 Kans. 357, 131 Pac. 551. 
 
 762 
 
BY DRIVER OP HORSE § 1 1 72 
 
 § 1 172. What amounts to driving.— In State v. Goodwin^s ^he 
 court consider at length what amounts to "driving" an animal. In this 
 connection, Chief Justice Hadley says : 
 
 " 'Driving' in its popular sense, means more than mere man- 
 aging or directing a horse. • It has, at least, a dual signifiation. 
 When it is said a party goes out 'driving' or 'boating,' it is not 
 usually understood that each member of the party performs the 
 physical act of driving the horse, or of rowing the boat. The 
 Standard Dictionary defines the word 'drive' thus : 'To ride in a 
 vehicle drawn by horses or other animals, or to direct or control 
 the animals that draw it.' A driving party may be referred to 
 collectively. * * * Here we have it in plain English that any 
 person operating an automobile on the highway, if he meets 
 persons driving a horse, shall stop the automobile upon receiv- 
 ing a signal, by putting up the hand, from any such person so 
 driving." 
 
 The word "driver" in the statute, is plainly used in an extended sense 
 to include "rider." In some states the statute uses both expressions 
 "driver or rider," and in the Massachusetts act of 1909 both words 
 have been dropped and there has been substituted the expression "the 
 person in charge" of the animal.^* The word may be taken generally 
 in its widest sense to include all that is implied by the expression of the 
 idea in the Massachusetts act.^" 
 
 § 1 173. Signal by one not the driver. — It is a sufficient compliance 
 with the statute providing for signal to the motorist by the driver of a 
 frightened horse, if such signal be giveii by any occupant of the ve- 
 hicle.^8 
 
 Under a statute requiring an automobilist to stop on signal from a 
 person "in charge of" an animal it is not essential that the one driving 
 gives the signal but it is enough if fair warning is given by the occu- 
 pants.^' 
 
 But if the statute makes it a criminal offense for an automobile to 
 approach horses when signaled to stop by a person "riding, leading or 
 
 23169 Ind. 26s, 268, 82 N. E. 459- 
 
 24c. S34, s. 14. 
 
 2^Pratt and Mack, Law of Highways, 15 ed., p. 263, note a. 
 
 ^^State V. Goodwin, 169 Ind. 265, 82 N. E. Repr. 460. 
 
 2'Schaar v. Comforth, 128 Minn. 460, 151 N. W. 275; 8 N. C. C. A. 1079. 
 
§ II 74 SIGNALS 
 
 driving" a horse it is not a crime to fail to stop on signal from a passen- 
 ger in the rear seat even though the driver was using both hands in 
 learning to drive and was unable to signal.^' 
 
 Under a statute requiring the driver of an automobile to stop on 
 signal by the driver of a horse it is not enough for some other occu- 
 pant of the team to signal. The driver of the horse is the responsible 
 party who knows whether it is necessary to signal or not. He may 
 signal by shouting. It may be still negligence for the driver of the au- 
 tomobile to proceed after signal by another occupant.^' 
 
 Whether a signal by one sitting in the back seat of the team is enough 
 under a statute requiring a signal by the driver may be a question for 
 the jury.^" 
 
 § 1 174. Duty irrespective of signal. — ^The statute requiring opera- 
 tors to stop when signaled by one driving a restive horse, does not re- 
 lieve them from the duty of stopping without such signal on seeing 
 that such person is being imperiled by the fright of the horse. This 
 obligation grows out of the general provisions to take every precau- 
 tion to prevent frightening animals and to operate so as to "insure 
 the safety of such person or animal,"^^ and so as to preserve the lives 
 and safety of the public.^^ 
 
 In Shinkle v. McCullough^' the court held that where one operating 
 an automobile on the highway knew or by the exercise of ordinary care, 
 could have known that the machine had so far excited a horse as to 
 render him unmanageable, it was his duty to stop and take such meas- 
 ures as prudence might suggest. 
 
 The driver is charged with the duty of using reasonable care to avoid 
 
 28State V. Wilson, 265 Mo. i, 174 S. W. 163. 
 
 29Messer v. Bruening, 25 N. D. 599, 142 N. W. 158, 48 L. R. A. N. S. 945- 
 
 soQaskins v. Hancock, 156 N. C. 56, 72 S. E. 80, 8 N. C. C. A. 1085. 
 
 s^New York Act of 1904, c. 538, s. 3, subd. 3. 
 
 s^See § 232, Insurer, list of states. Christy v. Elliott, 216 111. 31, 50, 74 N. E. 
 1035; Murphy v. Wait, 102 N. Y. App. Div. 121, 124 92 N. Y. S. 253; Davis v. 
 Maxwell, 108 N. Y. App. Div. 130, 96 N. Y. S. 45 ; Ward v. Meredith, 220 111. 
 66, ^^ N. E. 118; Raber v. Hinds, 133 Iowa 312, no N. W. Repr. 597; Towle v. 
 Morse, 103 Maine, 250, 68 Atl. 1044; Walkup v. Beebe, 139 Iowa 395. "6 N. 
 W. Repr. 32t; Sapp v. Hunter, 134 Mo. App. 685, lis S. W. Repr. 463; Delfs v. 
 Dunshee, 143 Iowa 381, 122 N. W. Repr. 236. 
 
 33ii6 Ky. 960, ^^ S. W. 196. 
 
 764 
 
BY DRIVi;R OF HORSB § 1 1 75 
 
 frightening horses and if necessary to slow down or stop, and this 
 must be done whether the driver of the team signals or not.'* 
 
 Where a statute requires a driver of an automobile to use "every 
 reasonable precaution to prevent the frightening of "animals on the 
 road this may require him to stop without a signal, to stop his engine, 
 or to go on and get out of the way. The jury may well find him 
 negligent in drawing up alongside the horse and standing there with 
 the engine running.*' 
 
 There is no duty imposed on the driver of an automobile to stop 
 until signaled to do so by the driver of an approaching horse and team 
 which does not appear unruly.'" 
 
 § 1 175. Failure to heed signal to stop. — Evidence that the auto- 
 mobilist continued to advance after the driver of the horse signals is 
 evidence of negligence in the absence of evidence that a forward 
 movement is necessary to avoid accident.'^ 
 
 Evidence that the plaintiff while driving a pair of horses on a nar- 
 row road signaled to the defendant, who was approaching in an auto- 
 bile to stop, but that the defendant continued on his way until the two 
 were about to meet at a point where the width was too narrow for 
 safe passing warrants the jury in finding that the defendant's failure 
 to heed the signal and stop his car was the proximate cause of the ac- 
 cident.'* 
 
 Where tlie automobile stops on signal by the driver of a team at 
 night and then comes on again the question of his negligence is for the 
 jury." 
 
 § 1 176. Stopping on signal insufficient. — The statute requiring 
 the operator to stop on signal to avoid frightening a horse "does not 
 
 '^Nelson v. Halland, 127 Minn. 188, 149 N. W. 194. 
 
 ''Ellsworth V. Jarvis, 92 Kan. 895, 141 Pac. 1135. 
 
 s6Messer v. Bruening, 25 N. D. 599, 142 N. W. is8, 48 L. R. A. N. S. 945, 
 8 N. C. C. A. 1086. 
 
 ""Horak v. Dougherty, Iowa, 1908, 114 N. W. 883. Chapman v. Strong, 
 162 Mich. 623; 127 N. W. 741, 8 N. C. C. A. 1088. Union Transfer & Storage 
 Co. V. Westcott Express Co., 140 N. Y. S. 98, 79 Misc. 408, although was 
 no evidence of unusual noise. Brown v. Thorne, 61 Wash. 18, iii Pac. 1047, i 
 N. C. C. A. 107, 8 N. C. C. A. 1081; McCummins v. State, 132 Wis. 236, 112 N. 
 W. 25. 
 
 "Carter v. Potter, no Maine 545; 86 Atl. 671, 8 N. C. C. A. 1085. 
 
 "Spangler v. Markley, 39 Pa. Super. Ct. 351, 8 N. C. C. A. 1083. 
 
 765 
 
§ 1 1 77 SIGNAI<S 
 
 relieve those in charge or control of the automobile or the driver of 
 the carriage from taking such further precautions as the dictates of 
 ordinary prudence may demand."*" 
 
 § 1 177. Negligent failure to signal. — One riding horseback on a 
 horse he knows to be unmanageable, quick, and afraid of automobiles 
 is guilty of contributory negligence in staying by the side of the road 
 when he sees an automobile approaching and giving no signal to its 
 driver that he is unable to control the animal even though the horse 
 gives no visible signs of fright until the automobile draws opposite.*^ 
 
 III. SiGNAi, BY Traffic Officbr.*^ 
 
 § 1 178. Proceeding on Signal by traffic officer. 
 
 § 1 1 78. Proceeding on signal by traffic officer.*^ — ^The defendant 
 was not negligent where on a crowded corner he received a signal 
 from the traffic policeman to go ahead and he does so at a moderate 
 pace blowing his horn.*^ 
 
 loTrombley v. Stevens-Duryea Co., 206 Mass. 516; 92 N. E. 764. 
 
 *iDreier v. McDermott, 157 Iowa 726, 141 N. W. 31S, 50 L. R. A. N. S. 566, 
 8 N. C. C. A. 1082. 
 
 *^Negligence of motorman of electric car in stopping suddenly on signal by 
 traffic officer, see post § 1443. 
 
 *3Gittings V. Schenuit, 122 Md. 2B2; 90 Atl. 51. 
 
 766 
 
CHAPTER XXXVII. 
 
 ANIMALS ON HIGHWAY.i 
 
 8 1179. Dog as cause of injury. 
 
 1 180. Injury to dog. 
 
 1 181. Injury to cattle on road. 
 
 § 1 179. Dog as cause of injury. — Where a large dog runs in front 
 of and against an automobile causing it to skid directly in front of a 
 horse which rears and descends on top of the automobile the owner of 
 the dog may be found liable for the injury to the automobile.^ 
 
 Where a light Ford car going slowly skids on hitting a dog and runs 
 into the plaintiff the driver of the Ford was held not guilty of actionable 
 negligence in a recent case.^ 
 
 Recovery may be had under a statute providing recovery for in- 
 juries caused by a dog where a dog jumps out in front of an automo- 
 bile causing it to swerve into a ditch.* 
 
 § 1 1 80. Injury to dog. — The mere fact that an automobile ran 
 over a dog is not enough to prove negligence.^ 
 
 In an action for death of a dog it is not enough for the plaintiff to 
 prove that the automobile was at the time of the accident traveling at 
 high speed. The high speed may have concurred with the dog's in- 
 jury without being the cause of it." 
 
 § 1 181. Injury to cattle on road. — ^Where cattle are trespassing on 
 the highway the driver of an automobile owes them no duty except to 
 use ordinary care to prevent their injury.'' 
 
 A driver of an automobile is not negligent as matter of law in speed- 
 ing up to pass a heifer in the road when the heifer jumps in front of 
 the car.* 
 
 Under statutes in most states it is unlawful to allow cattle to roam 
 at large on the highway. This is a question for the jury whether they 
 were at large together with the question of the defendant's negligence.' 
 
 iDuty to hit animal rather than person see ante §1103. 
 
 ^Williams v. Brennan, 213 Mass. 54, 99 N. E. 516. 
 
 sGnecco v. Pedersen, 151 N. Y. S. 105, l6s App. Div. 235. 
 
 *Tasker v. Arey, (Maine 1916) ; 96 Atl. 737. 
 
 'O'Hara v. Gould, 84 N. J. L. 583; 87 Atl. 117. 
 
 'Wallace v. Waterhouse, 86 Conn. 546 ; 86 Atl. 10, Ann. Cas. 1914, B 82. 
 
 'Armann v. Caswell, 30 N. D. 406, 152 N. W. 813. 
 
 ^Arrnann v. Caswell, 30 N. D. 406, 152 N. W. 813. 
 
 »Armann v. Caswell, 30 N. D. 406, 152 N. W. 813. 
 
 767 
 
CHAPTER XXXVIII. 
 
 BICYCUST.i 
 
 § 1 182. Seesaw movements. 
 
 1183. Slipping and falling. 
 
 1184. Turning across road. 
 
 1185. Brakes not working. 
 
 1 186. Automobile overtaking bicycle. 
 
 1187. Duty of automobilist to slow down. 
 
 1 188. Automobile on wrong side of street. 
 
 1 189. Bicyclist turning comer at high speed. 
 llSgA. Failure to continue looking at automobile. 
 
 § 1 182. Seesaw movements.^ — A bicyclist traveling at a reasona- 
 ble rate is not negligent when he sees defendant turning across his 
 course and both make a seesaw effort to avoid a collision.' 
 
 A verdict for the plaintiff is sustained on evidence that the defendant 
 hit the plaintiff riding a bicycle as the plaintiff was turning from his 
 left to the right side of the street and the defendant was coming* 
 towards him turning in the same direction.* 
 
 § 1 183,. Slipping and falling. — ^A boy on a bicycle who slips and 
 falls down on a slippery pavement one hundred feet ahead of a truck 
 may recover." 
 
 § 1 184. Turning across road. — A bicyclist is not negligent who 
 starts to turn across the road without looking behind.' 
 
 The questions involved are for the jury where the plaintiff on a 
 bicycle riding just ahead of the defendant in an automobile swings to 
 the left and doubles back on his course on a crosswalk over an inter- 
 secting street and is hit by the defendant who has also swung to the 
 
 iRights of deaf bicyclist, see post, § 1370; Collision with bicycle. Injuries 
 received in collision between automobile and bicycle, 4 N. C. C. A. 13, 14 note. 
 2See further § 361. 
 
 'Calahan v. Moll, 160 Wis. 523, 152 N. W. 179. 
 *McComas v. Strasburger Dry Goods Co., 96 Kan. 467, 152 Pac. 615. 
 ^Goosen v. Packard Motor Car Co., 174 Mich. 654, 140 N. W. 947. 
 'Rogers v. Phillips, 206 Mass. 308, 92 N. E. 327. 
 
 768 
 
BICYCWST § 1185 
 
 left intending to enter the intersecting street. It appeared that there 
 was an ordinance forbidding motor vehicles from crossing a cross walk 
 at more than four miles an hour and the court holds that the plaintiff 
 on his bicycle was entitled to assume that the defendant would not 
 violate this ordinance. The plaintiff testified he looked ahead and did 
 not see the defendant who was approaching from the side. Whether 
 either party should have seen the other was a question for the jury.' 
 
 Where the automobilist is turning round to go in the opposite direc- 
 tion the jury are properly charged that they should consider on all the 
 evidence whether the defendant was doing anything he ought not to 
 have done.* 
 
 A bicyclist who starts to turn across the street without looking is not 
 in the exercise of due care where there is nothing to abscure his vision 
 and he has only the automobile and another bicycle to avoid in a paved 
 street sixty-seven feet wide. If he had looked he must have seen the 
 automobile and if he did not look he is not in the exercise of common 
 prudence.' 
 
 A bicyclist who to avoid being run over by an automobile runs into 
 the curb may recover.^" 
 
 § 1185. Brakes not working. — A boy twelve years old on a bicycle 
 is not necessarily negligent in riding down hill when his coaster brake 
 fails to work although it had worked when he had tested it earlier in 
 the day where he swings round into a side street attempting to avoid 
 an automobile on the wrong side of the side street.^^ 
 
 § 1 186. Automobile overtaking bicycle. — The jury is warranted in 
 finding the automobilist negligent in coming up behind a bicyclist and 
 running into him.^'' 
 
 Where a bicycle rider is run down at night by an automobile coming 
 from behind it is immaterial whether he was driving near the center 
 of the street instead of near the curb as the ordinance provided as this 
 could not be the proximate cause of the accident. The defendant was 
 
 'Ludwigs V. Dumas, 72 Wash. 68, 129 Pac. 903. 
 ^Johnson v. Shaw, 204 Mass. 165, 90 N. E. 5 18. 
 9Gibbs V. Dayton, 166 Mich. 263, 131 N. W. 544. 
 loWright V. Mitchell (Penn. igi6), 97 Atl. 478. 
 "Baillargeon v. Myers, 27 Cal. App. 187, 149 Pac. 378. 
 i^Heath v. Cook, R. I. 68 Atl. 427. 
 
 769 
 49 
 
§ 1 1 87 BICYCLIST 
 
 bound not to run over him even if he did ride in the center 6i the 
 street.^^ 
 
 § 1 187. Duty of automobilist to slow down. — An instruction is 
 erroneous that holds the driver of an automobile bound to slow down 
 when he sees a bicyclist approaching regardless of whether he was in 
 a perilous position or not.'* 
 
 § 1 188. Automobile on wrong side of street. — ^Where the deceased 
 was struck while crossing the street on his bicycle and had only five 
 feet and three inches to go before reaching the right side where he 
 should be when the automobile was 160 feet away the plaintiff is not 
 necessarily negligent in not stopping and waiting till the automobile 
 passed coming up the wrong side of the road at high speed.^" 
 
 If the plaintiff is riding his bicycle on the right side of the street and 
 the defendant's driver suddenly turns in front of him to pass a team 
 and the plaintiff is unable to get out of the way owing to the sudden- 
 ness of the defendant's approach, the defendant is liable.^" 
 
 § 1189. Bicyclist turning corner at high speed. — A judgment for 
 the defendant is affirmed on evidence that the defendant was a careful 
 driver and the plaintiff on a bicycle came at high speed round a corner 
 and ran into the defendant's automobile who in an effort to avoid him 
 ran off the road where also the plaintiff was only slightly injured.'^ 
 
 § 1189A. Failure to continue looking at automobile. — A minor, 
 eighteen years old, on a bicycle is not negligent as a matter of law in 
 riding when he sees the automobile some distance away travelling so 
 as not to hit him and he does not look again at it till the collision takes 
 place but is watching a ball game.*' 
 
 isHarnan v. Haight, Mich. IJS N. W. 563, 1916. 
 i^Kent V. Treworgy, 22 Colo. App. 447, 12S Pac 128. 
 i^Walleigh v. Bean, 248 Pa. 339 ; 93 Atl. 1069. 
 
 i8Ribas V. Revere Rubber Co., 37 R. I. 189; 91 Atl. 58. See Reed v. Martin, 
 160 Mich. 2S3, 125 N. W. 61. 
 I'Halloway v. Dumas, La. 70, So. 321, 1916. 
 I'Tschirley v. Lambert, 72 Wash. 70, 126 Pac. 80. 
 
 770 
 
CHAPTER XXXIX. 
 
 BACKING AND TOWING. 
 
 § iigo. Baddng in general, 
 iigi. Meeting car backing on wrong side of street. 
 1192. Backing out of garage running over street laborer. 
 1 193. . Towing. 
 
 § 1 190. Backing in general.^ — It is negligent for a chauffeur to 
 back his automobile without ascertaining what is behind him and with- 
 out giving any signal, although the top was up so he could not see.^ 
 
 Where the automobile suddenly starts to back and runs over a pedes- 
 trian he should recover,^ even though he has been previously trespass- 
 ing on the automobile.* 
 
 § 1 191. Meeting car backing on wrong side of street. — The driver 
 of a motorcycle cannot be charged with contributory negligence in 
 turning on a side street and keeping on the right and he has a right to 
 expect that a vehicle on that side of the street will be moving ahead 
 and not backward.^ 
 
 § 1 192. Backing out of garage running over street laborer .° — A 
 driver is guilty of negUgence in backing out of a garage across the 
 sidewalk circling round in the middle of the street and running down 
 a street sweeper who is lawfully there at work, although the driver 
 sounded his horn as he crossed the sidewalk where he was not looking 
 in the direction in which he was going.' 
 
 ^Backing across corner see ante § 403. Backing across street car track, see 
 post § 1440. 
 
 ^Pease v. Gardner, 113 Maine, 264; 93 Atl. 550. 
 
 ^Shamp V. Lambert, Mo. App. 121 S. W. 77o. Enstrom v. Neumoegen, 126 
 N. Y. S. 660 (Sup. App. Term). 
 
 *Grudberg v. Ehret, 140 N. Y. S. 379, 79 Misc. 627, 4 N. C. C. A. 8. 
 
 ^Williams v. Kansas City, Mo. App. 177 S. W. 783- 
 
 «As to duty of pedestrians to look in crossing a passageway, see § 1312 
 
 'Ostermeier v. Kingman Co., 255 Mo. 128, 164 S. W. 218. 
 
 771 
 
§ 1 193 BACKING AND TOWING 
 
 § 1 193. Towing. — In towing a disabled automobile all parties are 
 bound to observe due care to warn other users of the street of the ob- 
 struction." 
 
 A pedestrian is negligent in stumbling over the rope when warned 
 by the chauffeur of the disabled machine.' 
 
 Where the chauffeur of the disabled machine tells a pedestrian to 
 step over the rope and the driver of the towing car suddenly starts, 
 both may be free of negligence and it has been held : 
 
 (i) That defendant, not knowing that the chauffeur ahead 
 was about to start, was not guilty of negligence, in not warning 
 such chauffeur that plaintiff was about to pass over the tow 
 line ; 
 
 (2) That the chauffeur ahead was not guilty of negligence, 
 being in ignorance of the fact that anyone was in a position to 
 be injured by his forward movement.^" 
 
 The negligence of the driver of the towing machine in procuring and 
 fastening the rope may not be the proximate cause of the accident 
 where the negligence of the driver of the disabled machine is an in- 
 tervening cause. ^^ 
 
 It is for the jury to decide whether a woman is negligent in riding in 
 a disabled automobile being towed by a motor truck.^^ 
 
 8 Young V. Herrtnan, 119 N. Y. App. Div. 44S, 192 N. Y. 554. 
 
 »Canfield v. New York Transf. Co., 128 N. Y. App. Div. 450, 112 N. Y. Supp. 
 
 8S4. 
 loTitus V. Tangeman, 116 N. Y. App. Div. 977, loi N. Y. S. 1000. 
 iijerome v. Hawley, 147 App. Div. 47s, 131 N. Y. S. 897. 
 i^McLaughlin v. Pittsburgh Kys. Co., (Penn. 1916) ; 97 Atl. 107. 
 
 11^- 
 
CHAPTER XL. 
 
 PASSENGERS. 
 I. iMPUTia) Negwgence. 
 
 § 1 194. Scope of chapter. 
 
 1195. Doctrine of identification. 
 
 iig6. Driver's negligence no longer imputable to passenger. 
 
 1197. The modern doctrine generally. 
 
 1 198. The rule does not apply in cases of master and servant, etc. 
 
 § 1 194. Scope of chapter. — ^This chapter has regard to all persons 
 occupying a vehicle who are without authority to direct or control the 
 operation thereof. It includes guests and friends invited to ride 
 gratuitously, and also persons who pay a toll or fare for the privilege 
 of riding. The word "passenger" has been selected as a general ex- 
 pression, covering all such classes of person. The relation between 
 the passenger and the driver, and the attitude of the former toward 
 third parties, has been a subject exciting much interest. In order to 
 arrive at a clear conception of the law as it stands to-day, some con- 
 sideration should be given to what is generally spoken of as the "doc- 
 trine of identification" in this connection,^ which topic has been already 
 more fully treated as imputed negligence.^ 
 
 § 1 195. Doctrine of identification. — ^^This rule, whereby the negli- 
 gence of the driver is imputed to the passenger, was first promulgated 
 in England and for a long time held sway in that country, from whence 
 it obtained a foothold in a few of the American states, but never se- 
 cured wide recognition though giving rise to much discussion. 
 
 Thorogood v. Bryan^ is the leading case. In that case the English 
 Common Pleas, by Maule, J., held that the passenger : 
 
 "having trusted the party by selecting the particular convey- 
 ance, has so far identified himself with the owner and her serv- 
 ants, that, if any injury results from their negligence, he must 
 
 ^For duty towards passenger, see § 865. 
 
 'See ante § 1019-1035. 
 
 '8 C. B. (M. G. & S.) IIS, 122. 
 
 773 
 
§ 1 196 PASSENGERS 
 
 be considered a party to it. In other words, the passenger is so 
 far identified with the carriage in which he is traveling, that 
 want of care on the part of the driver will be a defense of the 
 driver of the carriage which directly caused the injury." 
 
 The doctrine is no longer followed in England, having been rejected 
 in "The Bernina."^ In the Supreme Court of the United States, its 
 reasoning was considered in L,ittle v. Hackett,^ and declared by Mr. 
 Justice Field, to rest "on indefensible ground." The principle was 
 repudiated in Massachusetts, in Randolph v. O'Riordon." 
 
 Mears, in his work on "The Law of the Motor Car" (Eng.), page 
 61, considering Thorogood v. Bryan, supra, and the law of England 
 as it .is at present, remarks that the doctrine of that case "was decried 
 and discredited" and formally overruled in England in 1887. He 
 adds that the case of Little v. Hackett^ embodies what is, no doubt, 
 now the recognized rule of English law. 
 
 Shearman & Redf. on Negligence* speaks of Thorogood v. Bryan as 
 a "famous and now exploded decision." And Dr. Thompson remarks, 
 that it has been overruled in England and in most of the American 
 states." 
 
 § 1 196. Driver's negligence no longer imputable to passenger.— 
 The case of Thorogood v. Bryan^" having been overruled and repudi- 
 ated, the idea of imputed negligence no longer applies between the 
 driver and the passenger, being supplanted by a rule more consistent 
 with common sense and the principles of justice. The later rule is 
 not, however, without exception. In Lauson v. Fond Du Lac^^ it was 
 held that a person in a private automobile on a dark, rainy night; can- 
 not in Wisconsin, recover for injury from a defect in the road, the 
 driver's negligence contributing to the accident. 
 
 *I2 P. D. 58 and 13 A. c. i. 
 
 5ii6 U. S. 366, 6 S. Ct. 391- 
 
 81SS Mass. 331, 25 N. E. 583. See also Allyn v. B. & A. R., 105 Mass. 771 
 Shultz V. Old Colony St. Ry., 193 Mass. 309 {infra), '79 N. E. 873- 
 
 '116 U. S. 366, 6 S. Ct. 391. 
 
 ssth ed., sec. 74. 
 
 ^Thompson, Com. on Negligence, 2d ed., sees., Soo, 501; see also Wilson v. 
 Puget Sound Electric Ry. Co., 52 Wash. 522, loi Pac. 50. 
 
 108 C. B. (M. G. & S.) 115, 122. 
 
 11141 Wis. 57, 123 N. W, 629. 
 
 774 
 
IMPUTED NEGUGENCB § II97 
 
 And even where the negligence of the driver cannot be imputed the 
 burden still remains on the passenger to show actionable negligence on 
 the part of the defendant.'^ 
 
 § 1 197. The modern doctrine, generally. — Nearly all the American 
 courts are agreed that "where a person while riding on a private ve- 
 hicle by the invitation of the driver, or the owner, or the custodian of 
 the vehicle, and having no authority or control over the driver, and 
 being under no duty to control his conduct, and having no reason to 
 suspect any want of care, skill, or sobriety on his part, is injured by 
 the concurring negligence of the driver and a third person or cor- 
 poration, the negligence of the driver is not imputed to him so as to 
 prevent him from recovering damages from the other tort-feasor. 
 Where one uninvited, or without the knowledge of the driver of a 
 private vehicle, gets upon the same for the purpose of riding, and does 
 ride thereon, the relation of master and servant, or principal and 
 agent, is in no proper sense created thereby, and the negligence of the 
 driver will not be imputed to such passenger."^* 
 
 The whole subject received thorough consideration in the Massa- 
 chusetts Supreme Court, in the case of Shultz v. Old Colony St. Ry.,^* 
 wherein the decisions in other jurisdictions were elaborately reviewed. 
 As a summary of the present condition of the law everywhere, that 
 case will be found generally useful. It has been frequently cited in 
 other states, and in Massachusetts it has been most recently followed 
 in Miller v. Boston & N. St. Ry./° and Chadbourne v. Springfield St. 
 Ry.^° The facts of the case were that the "plaintiff was a passenger 
 being driven by a friend over whom she exercised no control, or with 
 whose driving she in no way interfered. Defendant's street car came 
 up behind and struck the carriage, causing the injury complained of. 
 
 Mr. Justice Rugg, who wrote the opinion, says in part : 
 
 (p. 312) "This case fairly raises the question as to whether 
 the negligence of the driver of a vehicle is to be imputed to a 
 
 "Dale V. Denver City Tramway Co., 173 Fed. 787, 97 C. C. A. S"- 
 
 i^Thompson Com. on Negligence, 2d ed., see 502. Rush v. Metropolitan 
 St. Ry. Co., IS7 Mo. App. S04, 137 S. W. 1029. Sight-seeing automobile. Wilson 
 V. Puget Sound Elec. Ry. Co., 52 Wash. 522, loi Pac. 50. See further ante § 1020; 
 
 1*193 Mass. 309, 79 N. E. 873. 
 
 1=197 Mass. 535, 83 N. E. 990. 
 
 i»i99 Mass. 574, 85 N. E. 737- 
 
 775 
 
§ 1 197 PASSENGERS 
 
 guest riding with him gratuitously and personally, in the exer- 
 cise of all the care, which ordinary caution requires." * * * 
 (P- 315) "The general rule is that where the injured per- 
 son and the driver do not occupy the position of master and 
 servant, passenger and carrier, parent and child, and where the 
 plaintiff is himself in the exercise of due care, having no reason 
 to suspect carelessness or incompetency on the part of the driver, 
 and is injured by the concurring negligence of the driver of the 
 vehicle and some third person, the guest is not precluded from 
 recovery against the third person by reason of the negligence of 
 the driver." * * * 
 
 (p. 320) "If the subject is considered apart from decided 
 cases and upon sound reason, the same conclusion is reached. 
 There is no abstract principle of law by which an innocent per- 
 son, in the full possession and exercise of his faculties and him- 
 self using due care, should be prohibited from recovery against 
 a wrong-doer whose tortious act contributes as a proximate 
 cause of his injury. It is familiar law that an injured person 
 may recover against one or both of two wrong-doers between, 
 whom there is no concert of action, whose concurring act pro- 
 duces the injury, even though the act of either alone might not 
 have caused any harm, when no distinction can be drawn be- 
 tween their acts." * * * Where the injury has resulted from 
 the neghgent act of another, the plaintiff may recover if such 
 negligence was the efficient cause. In other phrase, where the 
 defendant is the doer of a wrong, which causes an injury to a 
 plaintiff, who is free from any contributory negligence, the cir- 
 cumstance that the negligence of a third party also contributed 
 to the injury does not ordinarily bar recovery." * * * 
 
 (p. 323) "Applying this statement of the law to the present 
 case, the result is that the plaintiff would not be entitled to re- 
 cover if, in the exercise of common prudence, she ought to have 
 given some warning to the driver of carelessness on his part, 
 which she observed or might have observed in exercising due 
 care for her own safety, nor if she negligently abandoned the 
 exercise of her own faculties and trusted entirely to the vigi- 
 lance and care of the driver. She cannot hide behind the fact 
 that another is driving the vehicle in which she is riding, and 
 thus relieve herself of her own negligence. What degree of 
 care she should have exercised in accepting the invitation to 
 ride, or in observing and calling to the attention of the driver 
 perils unnoticed by him, depends upon the circumstances at the 
 time of the injury. On the other hand, she would be perrhitted 
 to recover if in entering and continuing in the conveyance, she 
 acted with reasonable caution, and had no ground to suspect 
 
 776 
 
IMPUTED NEGLIGENCE § 1 197 
 
 incompetency and no cause to anticipate negligence on the part 
 of the driver, and if the impending danger, although in part 
 produced by the driver, was so sudden or of such a character 
 as not to permit or require her to do any act for her own pro- 
 tection."" 
 
 I'NoTg. — The following cases are cited in Shultz v. Old Colony R. (supra) : 
 
 Little V. Hackett, ii6 U. S. 366, 375. 6 S. Ct. 391 ; Christy v. Elliott, 216 III. 31, 
 74 N. E. 103s, a motor vehicle case. 
 
 Alabama — Elyton Land Co. v. Mingea, 89 Ala. 521, 528, 7 So. 666; Vormus v. 
 
 Tenn. Coal, Iron, etc. . 97 Ala. 326, 331, 12 So. iii; Birmingham Ry. & E. 
 
 Co. V. Baker, 132 Ala. 507, 31 So. 618. 
 
 Arkansas— Hot Springs St. Ry. v. Hildreth, 72 Ark. 572, 82 S. W. 245. 
 
 California — Bresee v. Los Angeles T. Co., 149 Cal. 131, 85 Pac. 152. 
 
 Colorado — Colorado & S. Ry. v. Thomas, 33 Col. 517. 
 
 Delaware— Parley v. Wilmington & N. E. R., 3 Pen. (Del.) 581, 52 Atl., 543 
 Del. 
 
 Georgia— Met. St. R. R. y. Powell, 89 Ga. 601, 611, 16 S. E. 118. 
 
 Illinois— Wabash & St. L. & P. R. v. Shacklett, 105 111. 364; Consol. Ice Mach. 
 Co. v. Keifer, 134 111. 481, 492, 25 N. E. 799; West Chicago St. Ry. v. Dougherty, 
 209 111. 241, 70 N. E. 586. 
 
 Indiana — Knightstown v. Musgrove, 116 Ind. 121, 123, 18 N. E. 452; Michigan 
 City v Boeckling, 122 Ind. 39, 23 N. E. S18; Louisville N. A. & C. Ry. v. Creek, 
 130 Ind. 139, 29 N. E. 481 ; Chicago & St. L. & P. R. v. Spilker, 134 Ind. 380, 33 
 N. E. 280; L. S. & M. S. R. V. Mcintosh, 140 Ind. 261, 272, 38 N. E. 476; Ind. 
 St. Ry. V. Johnson, 163 Ind. 518, 72 N. E. 571. 
 
 Iowa — Nesbit v. Garner, 75 Iowa 314, 39 N. W. 516. 
 
 Kansas — Leavenworth v. Hatch, S7 Kans. 57, 45 Pac. 65. 
 
 Kentucky — Cahill v. Cincinnati Ry., 92 Ky. 345, 355, 18 S. W. 2; Louisville 
 Ry. V. Anderson, 76 S. W. Repr. 153, Ky., 25 Ky. L. R. 666. 
 
 Maine — State v. Boston & M. R., 80 Me. 430, 446, 13 Atl. 36; Barnes v. Rum- 
 ford, 96 Me. 31S, 52 Atl. 844; Neal v. Rendall, 98 Me. 69, s6 Atl. 209. 
 
 Maryland— Balto. & Ohio R. v. State, 79 Md. 335, 344, 29 Atl. 518; Consol. 
 Gas Co. V. Getty, 96 Md. 683; 54 Atl. 660; United Rys. v. Biedler, 98 Md. 564, 56 
 Atl. 813. 
 
 Massachusetts — AUyn v. Boston & A. R., 105 Mass. 77; Randolph v. O'Rior- 
 don, IS5 Mass. 331, 25 N. E. 583; Robbins v. Fitchburg R., 161 Mass. 145, 36 N. 
 E. 752; Tilton V. Boston & A. R., 169 Mass. 253, 47 N. E. 998; LeBlanc v. 
 Lowell L. & H. St. Ry., 170 Mass. 564; 49 N. E. 927 ; Creavin v. Newton St. Ry., 
 176 Mass. 529, 57 N. E. 994; Murray v. Boston Ice Co., 180 Mass. 165, 61 N. E. 
 looi; Corey v. Havener, 182 Mass. 250, 65 N. E. 69; Sullivan v. Boston El. Ry., 
 185 Mass. 602, 606, 71 N. E. 90 ; Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799 ; 
 Evansen v. Lexington & B. St. Ry., 187 Mass. 77, 72 N. E. 355; Oulighan v. 
 Butler, 189 Mass. 287, 293, 75 N. E. 726; Halloran v. Worcester Con. St. Ry., 
 192 Mass. 104, 78 N. E. 381 ; Kane v. Boston El. Ry., 192 Mass. 386, 78 N. E. 485. 
 
 Michigan— Lake Shore & M. S. R. v. Miller, 25 Mich. 274; Cuddy v. Horn, 
 
 777 
 
§ 1197 PASSENGERS 
 
 46 Mich. 596, 602, 10 N. W. 32 ; Cowan v. Muskegon Ry., 84 Mich. 583, 48 N. W. 
 166; Sehindler v. M. L. & W. R., 87 Mich. 400, 43 N. W. 911 ; Mullen v. Owosso, 
 100 Mich. 103, 58 N. W. 663; Hampel v. D. G. R. & W. R., 138 Mich, i, 100 N. 
 W. 1002 ; McKernan v. Detroit C. St. Ry., 138 Mich. 519, loi N. W. 812. 
 
 Minnesota — Cunningham v. Thief River Falls, 84 Minn. 21, 86 N. W. 763; 
 Koplitz V. St. P., 86 Minn. 373, 90 N. W. 794 ; Teal v. St. P. Ry., 96 Minn. 379, 
 104 N. W. 945. 
 
 Mississippi — Alabama & V. Ry. v. Davis, 69 Miss. 444, 11 So. 602; 111. Cent. 
 R. V. McLeod, 78 Miss. 334, 29 So. 76. 
 
 Missouri — Dickson v. Mo. Pac. Ry., 104 Mo. 491, 504, 16 S. W. 381 ; Holden v. 
 Mo. R., 177 Mo. 456, 76 S. W. 973; Johnson v. St. Joseph, 96 Mo. App. 663, 71 
 S. W. 106. 
 
 Montana — Whittaker v. Helena, 14 Mont. 124, 35 Pac. 904. 
 
 Nebl-aska— Omaha & R. V. R. v. Talbot, 48 Neb. 627, 67 N. W. 599; Hajsek 
 v. C. B. & Q. R., 68 Neb. 539, 94 N. W. 609. 
 
 New Hampshire — Noyes v. Boscawen, 64 N. H. 361, 368, 369, 10 Atl. 690. 
 
 New Jersey— N. Y. L. E. & W. R. v. Steinbrenner, 18 Vroom, i6i N. J. ; N. Y. 
 L. E. & W. R. V. N. J. Elec. R., 31 Vroom, 338, 348 N. J., 38 Atl. 828; Consol. 
 Tr. Co. V. Hoimark, 31 Vroom, 456, N. J., 38 Atl. 684; Noonan v. Consol. Tr. 
 Co., 35 Vroom, 579, N. J., 46 Atl. 770. 
 
 New York— Robinson v. N. Y. C. & H. R. R., 66 N. Y. 11; Dyer v. Erie Ry., 
 71 N. Y. 228; Masterson v. N. Y. C. & H. R. R., 84 N. Y. 247; Brickell v. N. Y. 
 C. & H. R. R., 120 N. Y. 290, 24 N. E. 449; Phillips v. N. Y. C. & H. R. R., 127 
 N. Y. 657, 660, 27 N. E. 978; Robinson v. Met. St. Ry., 91 N. Y. App. Div. 158, 
 86 N. Y. S. 442, affirmed 179 N. Y. 593, 72 N. E. 1150; Strauss v. Newburg Elec. 
 Ry., 6 N. Y. App. Div. 264, 39 N. Y. S. 998; Bailey v. Jourdan, 18 N. Y. App. 
 Div. 387, 46 N. Y. S. 399; Morris v. Met. St. Ry., 63 N. Y. App. Div. 78, 71 N. 
 Y. S. 321 ; Van Vranken v. Clifton Sprinjgs, 86 Hun. 67 ; Mack v. Shawangunk, 
 po N. Y. Supp. 760. 
 
 North Carolina — Crampton v. Ivie Bros., 126 N. C. 894; Duval v. Atlantic 
 Coast Line R., 134 N. C. 331, 46 S. E. 7S0- 
 
 North Dakota — Ouverson v. Grafton, 5 No. Dak. 281, 293, 65 N. W. 676. 
 
 Ohio— Transfer Co. v. Kelly, 36 Ohio St. 86; Cincinnati St. Ry. v. Wright, 
 54 Ohio St. 181, 193, 43 N. E. 688. 
 
 Pennsylvania — Lockhart v. Lichtenthaler, 46 Pa. St. 151 ; Phila. & R. R. v. 
 Boyer, 97 Pa. St. 91; Carlisle v. Brisbane, 113 Pa. St. 544, 6 Atl. 372; Dean v. 
 Penn. R., 129 Pa. St. 514, 520, 18 Atl. 718; Bunting v. Hogsett, 139 Pa. St. 363, 
 375, 21 Atl. 31 ; Carr v. Easton, 142 Pa. St., 139, 21 Atl. 832; Little v. Cent. Dist. 
 P. T. Co., 213 Pa. St. 229, 62 Atl. 848. 
 
 Tennessee— Hydes Ferry T. Co. v. Yates, 67 S. W. Repr. 69, 108 Tenn. 428. 
 
 Texas— Gal. H. & S. A. Ry. v. Kutac, 72 Tex. 643, 652, 11 S. W. 127; Mo. K. 
 & T. Ry. V. Rogers, 91 Tex. 52, 58, 43 N. E. 688; Cent. T. & N. Ry. v. Gibson, 
 35 Tex. App. 66. 
 
 Vermont — Carlisle v. Sheldon, 38 Vt. 440. 
 
 Virginia— Atlantic & D. R. v. Ironmonger, 95 Va. 625, 29 S. E. 319. 
 
 Washington— Shearer v. Buckley, 31 Wash. 370, 72 Pac. 76. 
 
 778 
 
CARE OF § 1 198 
 
 § 1 198. The rule does not apply in cases of master and servant, 
 
 etc. — "It is conceded that the rule that the driver's negligence may not 
 be imputed to the person injured 'is only applicable to cases where the 
 relation of master and servant, or principal and agent does not exist.' "^* 
 And this upon the principle respondeat superior. 
 
 II. Care of Passenger. 
 S 1 199. Due care to be exercised by passenger. 
 
 1200. Illustrations of what amounts to due care generally, on the part of the 
 passengers. 
 
 1201. Motor vehicle cases. 
 
 1202. Duty of motor vehicle passenger at railroad crossings. 
 
 1203. What amounts to due care at railroad crossings on the part of 
 passenger. 
 
 1204. Motor vehicle cases. 
 
 1205. Knowledge that driver careless. 
 
 1206. Passenger remaing in car when driver intoxicated. 
 
 1207. Passenger on rear seat. 
 
 1208. Failure to jump. 
 
 1209. Passenger remaining in unlighted car. 
 
 1210. Duties of passenger in general. 
 
 121 1. Care on highways by passengers. 
 
 1212. Passenger suggesting caution. 
 
 1213. Passenger failing to protest at excessive speed. 
 
 1214. Passenger urging high speed. 
 
 Wisconsin — Houfe v. Pulton, 29 Wis. 296, 9 Am. Rep. 568; Prideux v. Mineral 
 Point, 43 Wis. 513, 28 Am. Rep. SS8; Otis v. Janesville, 47 Wis. 422, 2 N. W. 783; 
 Olsen V. I<uck, 103 Wis. 33 ; 79 N. W. 29 ; Lightfoot v. Winnebago T. Co., 123 
 Wis. 479, 102 N. W. 30. 
 
 United States— Sheffield v. Cent. Union Tel. Co., 36 Fed. Repr. 164, Ohio; 
 Griffith v. Baltimore & O. R., 44 Fed. Repr. 574, Ohio; Union -Pac. Ry. v. 
 Lapsley, 51 Fed. Repr. 174, Iowa; Honey v. C. B. & Q. Ry„ 59 Fed. Repr. 422, 
 Iowa; Evans v. Lake Erie & W. Ry., 78 Fed. Repr. 782, Ind.; Pyle v. Clark, 
 75 Fed. Repr. 644, Utah, S. C, 79 Fed. Repr. 744; Del. L. & W. R. v. Devore, 
 114 Fed. Repr. 155, N. Y. ; Denver City Tran. Co. v. Norton, 141 Fed. Repr. 
 599, 609, Col. 
 
 English— Thorogood v. Bryan, 8 C. B. 114, 115 (Disapproved) ; Mills v. Arm- 
 strong, L. R. 13 App. Cas. I ; The Bernina, 12 P. D. 58. 
 
 Canada— Winckler v. Great W. Ry., 18 U. C. (C. P.) 250; Nichols v. Great 
 W. Ry., 27 U. C. (Q. B.), 382. 
 
 Text Writers Cited. 
 
 7 Am. & Eng. Encyc. of Law (2 ed.), 447. 
 
 I Thompson Negligence, sec. 502. ^ 
 
 I Shearman & Redf. Negligence (Sth ed.), sec. 66. 
 
 Beach Contrib. Negligence, sec. 115. 
 
 isThompson, Com. on Negligence, 2d ed., sec. 499- 
 
 779 
 
§ 1 1 99 PASSENGERS 
 
 § 1 199. Due care to be exercised by passenger. — As remarked in 
 Shultz V. Old Colony St. Ry.,^° the rule does not "under all circum- 
 stances, absolve the passenger in the private carriage from taking 
 such precautions for his own safety as under the circumstances, are 
 reasonable. If he is riding by the side of the driver in an open carriage, 
 and the driver on approaching a railway track, fails to make use of his 
 faculties to ascertain whether or not a train is approaching, then it is 
 reasonable that the passenger ought to call his attention to the situation 
 and remonstrate with him, or, if necessary to his own safety, leave the 
 vehicle. It has been ruled that a person so riding is bound to exercise 
 ordinary care for his own safety. * * * In another court it is rea- 
 soned that the rule. that the negligence of the driver of a wagon is not 
 imputable to one riding with him when the accident occurs at a rail- 
 road crossing, is applicable * * * where the passenger is seated 
 away from the driver, or is separated from him by an enclosure, and is 
 without opportunity to discover the danger and to inform the driver of 
 it. * * * The sound conclusion seems to be that where a person 
 who is sui juris — capable of caring for himself or herself — voluntarily 
 rides in the private carriage of another, at his invitation or with his 
 license or sanction, and is injured through the negligent driving of the 
 latter, his negligence will or will not be imputed to the guest or licensee 
 according to the circumstances, and it will therefore be to a large ex- 
 tent, a question of fact. In one such case, where the guest who was 
 injured was a woman who had reached the years of discretion, the 
 court said : 'In cases like the present the question becomes one of fact, 
 — the test of the passenger's responsibility for the negligence of the 
 driver depending upon the passenger's control, or right of control, of 
 the driver, so as to constitute the relation of master and servant between 
 them.' "20 
 
 In Brickell v. N. Y. C. & H. R. R. R. Co." Mr. Justice Potter, 
 speaking for the Court of Appeals, announces the general rule as to the 
 duty of the passenger to exercise due care, as follows : 
 
 "It is no less the duty of the passenger, ^"where he has the op- 
 portunity to do so, than of the driver, to learn of danger and 
 avoid it if practicable." 
 
 i»i93 Mass. 309, 79 N. E. 873. 
 
 soThompson Com. on Negligence, 2d ed., sees. 503, 499. See Nesbit v. Garner, 
 75 Iowa, 314, 39 N. W. 816; Meenagh v. Buckmaster, 26 App. Div. 451, 50 N. Y. 
 Supp., 85 Am. Dig. 1898, sec. 47. 
 
 21 120 N. Y. 290, 293, 24 N. E. 449- 
 
 780 
 
CARE OF - § 1199 
 
 The qualifications to the general rule noted in italics, open a door 
 to the admission of the ever varying circumstances of individual cases 
 which are for the jury. In Baltimore (City) v. Maryland (State),^" 
 the court sum up the matter as follows : 
 
 "The court properly instructed the jury, if they believed from 
 the evidence that the accident was in consequence of the failure 
 of the city to use ordinary and reasonable care to insure the 
 safety of ordinary travel in said highway, in its then condition, 
 that the chauffeur's 'negligence could not be imputed to' the de- 
 ceased passenger 'if the latter was himself not guilty of negli- 
 gence contributing to the happening of the accident which re- 
 sulted in his death.' " 
 
 Even if the passenger knows of the manner in which the auto- 
 mobile is being operated, it would not necessarily show that he 
 was negligent in remaining in the vehicle, or acquiesced in the 
 manner of driving, unless he knew or ought to have known, that 
 such manner of operating was negligent. In order to make the 
 passenger chargeable, the negligence of manner in operating 
 must have been so gross or apparent that he was bound to know 
 that it was negligent.^* 
 
 The court need not charge that the plaintiff, a passenger, cannot 
 recover if she attracted the driver's attention by talking to him where 
 there is no evidence that she was talking but was "having a good time." 
 The court remarks "surely a person may have a good time and not talk, 
 even though it is a lady."^' 
 
 A woman riding in a buggy which her husband is driving and hold- 
 ing a baby in her lap and another child by her side is not negligent 
 in looking round at things and in failing to warn her husband of the 
 approach of an automobile from his side of the buggy. She has a 
 right to rely on him to drive safely.^" 
 
 A passenger in an automobile is not negligent simply because she 
 puts out her hand as a truck approaches intending to signal to the 
 driver to stop and her hand is hit by the truck.*' 
 
 22Italics by the author of this book. 
 
 28i66 Fed. Repr. 641 (Md.), C. C. A. 
 
 2*CIark V. Conn. St. Ry., 83 Conn 219, 76 Atl. 523. 
 
 25Latimer v. Anderson County, 95 S. C. 187, 78 S. E. 879, 4 N. C. C. A. 23, 387. 
 
 28 Williams v. Withington, 88 Kan. 8og, 129 Pac. 1148, N. C. C. A. 382. 
 
 "Withey v. Fowler Co., 164 Iowa 377, 145 N. W. 923- 
 
 781 
 
§ 1200 PASSENGERS 
 
 In Lawrence v. Fitchburg, Etc., Ry.^' the couft held the passenger 
 could not recover because she did not use "due care nor any care," and 
 the motorman was not wantonly negligent nor reckless. 
 
 A guest riding beside the driver is required to use his faculties for 
 his own safety but an instruction that he is not exonerated from any 
 duty by reason of the fact that he was not driving is error as placing too 
 much of a burden upon him.^° 
 
 § 1200. Illustrations of what amounts to due care generally, on 
 the part of the passengers. — In Shultz v. Old Colony St. Ry.'" the 
 carriage was Being driven along the right side of the road parallel with 
 street car tracks. The driver was competent and the horse moving 
 slowly. The driver turned across suddenly, and the car coming up 
 struck the rear wheel. The plaintiff (a woman) was a passenger to 
 whom the driver was giving "a ride to her home." Held, Plaintiff not 
 guilty of contributory negligence. 
 
 In Miller v. Boston & N. St. Ry.'^ the plaintiff (a woman) occupied 
 the rear seat of a sleigh driven by a man who was competent to drive. 
 Held, That in the absence of any reason to suppose a want of care or 
 skill on the part of the driver, or of any circumstance which occasioned 
 a duty to caution him, she was in the exercise of due care. 
 
 § I20I. Motor vehicle cases. — In Chadbourne v. Springfield St. 
 Ry.'^ the plaintiff, a woman, was being driven as a guest in an auto- 
 mobile, when the machine was run into by a trolley car. The court 
 held, that plaintiff conducted herself as an invited guest of the driver, 
 trusted him as to running the machine and did not interfere with his 
 management. Because of her inexperience, and upon the assumption 
 of skill on the part of the driver, the jury was justified in finding that 
 she was in the exercise of due care. . . Further held, that it cannot be 
 said, as matter of law, that she ought to have warned the driver, in 
 view of the fact that he had turned when the accident happened in the 
 direction required by the law of the road, and in the only direction in 
 which the width of the bridge afforded room for the car to pass." 
 
 28201 Mass. 489, 87 N. E. 498. 
 
 2sToledo Rys. & Light Co. v. Mayers, Ohio 112 N. E. 1014. 
 3»i93 Mass. 309, 79 N. E. 873. 
 81 197 Mass. 535. 83 N. E. 990. 
 32199 Mass. 574. 575, 576, 85 N. E. 737- 
 
 ssCiting Shultz v. Old Colony St. Ry., 193 Mass. 309 ; 79 N. E. 873 ; Miller v. 
 Boston & N. St. Ry., 197 Mass. 535, 83 N. E. 990. 
 
 782 
 
CARE OF §1202 
 
 In Christy v. Elliott," Elliott was a passenger in a carriage driven 
 by one Parker. The mules became frightened at Christy's automobile, 
 the result of which was that Elliott was thrown out of the carriage 
 and sustained a broken arm. Objection was made to the court's in- 
 struction to the jury that the negligence of the driver would not amount 
 to negligence on the part of the passenger, unless the passenger was 
 himself at fault, or by his conduct contributed to such injury. Held, 
 That the instruction was correct. Mr. Justice Magruder, who de- 
 livered the opinion of the court, says (p. 48) : 
 
 "Where a defendant is guilty of negligence which causes an 
 injury, and the plaintiflf is free from negligence contributing 
 thereto, the fact that the negligence of a third party also con- 
 tributed would not relieve the defendant from liability for his 
 negligence." 
 
 Routledge v. Rambler Automobile Co.'° was a case in which the 
 plaintiff was a passenger with other passengers, in defendant's car 
 which was in charge of defendant's chauffeur. His fellow-passengers 
 induced the chauffeur to drive at an undue rate of speed. "The plain- 
 tiff sat in the same seat with, and next to the operator," but did not 
 join in the request of his co-passengers, remaining passive. Before 
 starting plaintiff asked the driver if the car was safe. Held, That 
 plaintiff could not be bound by the acts and language of his comrades 
 unless there was evidence that he acquiesced in them and made them 
 his own. He was a guest and not in a position to give orders.'" 
 
 § 1202. Duty of motor vehicle passenger at railroad crossings. — 
 At railroad crossings the rule of due care requires the passenger to be 
 more alert than when traveling upon the open highway. Where one 
 who is "riding by invitation in a vehicle in charge of another, remains 
 in it with knowledge that it is approaching at a fast trot a railway 
 crossing where a train is about due, without keeping any lookout him- 
 
 8*216 111. 31, 74 N. E. 1035, 108 Am. St. Rep. 196. 
 
 '^95 S. W. Repr. 749 (Tex. Civ. App.). 
 
 ''See also the following cases : 
 
 Dale V. Denver City Tramway Co., 173 Fed. Repr. 787, 97 C. C. A. 511 (Col.) ; 
 Lawrence v. Fitchburg etc. Ry., 201 Mass. 489, 87 N. E. 498; Wilson v. Puget 
 Sound Elec. Ry. Co., 52 Wash. 522, loi Pac. 50; Clark v. Connecticut St. Ry. Co., 
 83 Conn. 219; 76 Atl. Repr. 523; Feeley v. City of Melrose, 205 Mass. 329, 91 
 N. E. 306. 
 
 7«3 
 
§ I203 PASSENGERS 
 
 self and without requesting the driver to stop, he is guilty of contribu- 
 tory negligence."^' 
 
 A woman passenger is not guilty of contributory negligence because 
 she failed to jump from a moving automobile just before it ran upon 
 the track where an electric car was approaching as such a jump is espe- 
 cially for a woman a dangerous performance.'* 
 
 The plaintiff sat beside her husband on the front seat of an automo- 
 bile as it approached a street railway track, and looked and saw no 
 car coming from the south but did see a car which had just passed her 
 standing at the next street where there was a strong electric light. 
 Any claim that she was negligent ignores the fact that she did look 
 and did not see the car which struck her apptoaching from the south 
 and further ignores the rapid rate at which the car was running. 
 There was no evidence whether the plaintiff could have seen beyond 
 the arc light. If the car could have been seen the plaintiff had a right 
 to assume that it would be traveling at a reasonable or at least not an 
 unlawful speed.^' 
 
 § 1203. What amounts to due care at railroad crossings on the 
 part of the passenger.*" — ^The general rule on this subject is stated in 
 AUyn V. Boston & Albany R.,*^ wherein the plaintiff was being driven 
 by one Haskell : 
 
 "If the plaintiff failed to use the care which prudence re- 
 quired, relying upon the vigilance of his companion, he must 
 prove that Haskell was in the exercise of due care, not only in 
 the management of his horse, but in using the necessary pre- 
 cautions to guard against danger from passing trains." 
 
 In Bergold v. Nassau Elec. Co. R.,*^ a woman who was riding by 
 invitation of the driver, a competent and sober man, warned him of 
 danger just before reaching a railroad track. Held, That such warn- 
 ing did not constitute such an assumption of authority or control as to 
 
 s^Thompson Com. on Negligence, 2d ed., sec. 503. 
 
 ssHermann v. Rhode Island Co., 36 R. I. 447 ; 90 Atl. 813. 
 
 s^Byerley v. Metropolitan St. Ry. Co., 172 Mo. App. 470, 158 S. W. 4I3- 
 
 4»See also § I39i, Appendix A. 
 
 As to care at street railways, see §§ 1412 et seq. 
 
 *iios Mass. 77. 
 
 «30 N. Y. App. Div. 438, 52 N. Y. S. n. 
 
 784 
 
CARE OP § 1203 
 
 impute to her liability for the driver's negligence which contributed to 
 the accident resulting in an injury to her. 
 
 The facts of the following cases will illustrate the application of the 
 rule: 
 
 In Allyn v. Boston & Albany R.*^ plaintiff was being driven by a 
 friend in an open wagon in the day time, approaching a railroad track 
 at a grade crossing. It appeared that the track and sign over the high- 
 way became visible about five rods off. Plaintiff testified that he did 
 not know of the crossing and did jiot look up; that the driver was 
 careful and the horse safe. Plaintiff failed to show that the driver 
 looked to see if there was a train approaching. Heldj That there was 
 no evidence for the jury that the plaintiff was in the exercise of due 
 care. Also held : 
 
 "That a railroad crossing is a place of danger, and common 
 prudence requires that a traveler on the highway, as he ap- 
 proaches one, should use the precaution of looking to see if a 
 train is approaching. If he fails to do so, the general knowl- 
 edge and experience of men at once condemn his conduct as 
 careless." 
 
 In Robinson v. N. Y. C. & H. R. R.** the circumstances were that a 
 woman was being driven by a person fit and competent to manage a 
 horse. The accident occurred at a railroad crossing. She was not 
 directing his acts, and had no right or power to control them. Held, 
 That plaintiff was guilty of no contributory negligence. 
 
 In Brickell v. N. Y. C. & H. R. R.^^ the carriage in which plaintiff, a 
 man, was a passenger, was approaching a railroad crossnig. Mr. Jus- 
 tice Potter says :*° 
 
 "The rule that the driver's negligence may not be imputed to 
 the plaintiff should have no application to this case. Such rule 
 is only applicable to cases where the relation of master and serv- 
 ant or principal and agent does not exist, or where the passen- 
 ger is seated away from the driver or is separated from the driver 
 by an enclosure and is without opportunity to discover danger 
 and to inform the driver of it." 
 
 *3ios Mass. 77. 
 
 «66 N. Y. II. 
 
 ^^120 N. Y. 290, 24 N. E. 49. 
 
 "Citing Robinson v. N. Y. C. & H. R. R., 66 N. Y. 11. 
 
 78s 
 50 
 
§ I203 PASSENGERS 
 
 In Galveston, H. & S. R. v. Kutac" the circumstances were that a 
 party consisting of a man and his wife with others, were passengers 
 in a vehicle approaching a railroad crossing. A collision occurred, 
 the wife being killed. There was no controversy about the fact that 
 all the occupants of the wagon were well acquainted with the. crossing 
 and had frequently traveled the road. There was nothing to prevent 
 any of the party from seeing the engine coming for a distance of two 
 hundred yards before reaching the track. Held, That the deceased by 
 the exercise of due care, could have seen the approaching train in time 
 to have warned the driver and so prevented the injury resulting in her 
 death. Mr. Justice Hobby says : 
 
 "The law made it her duty to keep a proper lookout for ap- 
 proaching cars, and while the law does not hold her responsible 
 for the negligence of a third person, it does impute her own to 
 her." 
 
 Where one sitting on the seat with the driver is engaged in a com- 
 mon enterprise of a pleasure ride with him he is guilty of contributory 
 negligence if he does not call on the driver to stop on approaching s 
 railroad crossing.*' 
 
 There is however no evidence that a woman sitting on the rear seat 
 of an automobile is negligent where it does not appear that from her 
 seat she could have seen a train approaching if she had looked.*' 
 
 In Texas & P. Ry. Co. v. Curlin^" the facts were that a wedding 
 party being driven in a hack hired from a livery stable, the liveryman 
 furnishing the driver, approached a railroad crossing. A collision 
 occurred and a woman was injured. It appears that as the carriage 
 neared the track a railroad official told the driver that they might cross 
 over. It was not shown that the driver was incompetent. Held, That 
 the passenger was in the exercise of due care and that any negligence 
 on the part of the driver was not imputable to her. 
 
 \'";2 Texas, 643, 11 S. W. 127. 
 
 *8Brommer v. Penn. R. Co., (C. C. A. 3d Cir.) 179 Fed. 577, 103 C. C. A. 13S. 
 29 L. R. A. (N. S.) 924. 
 
 *9Brommer v. Penn. R. Co., (C. C. A. 3d Cir.) 179 Fed. 577, 103 C. C. A. 13S, 
 29 L. R. A. (N. S.) 924- 
 
 5°i3 Tex. Civ. App. 505, 36 S. W. 1003. 
 
 786 
 
CARS OP § 1204 
 
 § 1204. Motor vehicle cases.— In Ward v. Brooklyn Heights R." 
 the deceased (a man) was a passenger ignorant of the automobile and 
 its management, a guest of the owner, and had nothing to do with the 
 operation of the vehicle. It was shown that on approaching the rail- 
 road track the operator's view became obstructed, and he did not see 
 the car until too late to stop, so he put on more speed in an effort to 
 cross the tracks ahead of the train. A collision occurred and the 
 passenger was killed. Held, That the deceased being a mere passen- 
 ger, having nothing to do with the management of the machine, could 
 not be chargeable with contributory negligence even if the operator 
 could have been so chargeable. 
 
 So also in the case of Sherwood v. N. Y. C, Etc., R.'^ where the 
 plaintiff, a young man, was a passenger ignorant of the machine, and 
 "this, although in a prior action, the driver of the car was adjudged 
 to have been guilty of contributory negligence."^* 
 
 In Noakes v. N. Y. Central, Etc., R." the court hold among other 
 things : ( i ) In determining whether the failure of the passenger to 
 look and listen at a railroad crossing is contributory negligence as mat- 
 ter of law, the existing circumstances are to be considered, including 
 the age and sex of the passenger; (2) Where a girl sixteen years of 
 age is a passenger in a car, accompanied by her father, who was on the 
 seat beside the chauffeur, the latter being an experienced man, the girl 
 being in no sense responsible for the management of the vehicle or for 
 the orders in regard thereto, such passenger is not as matter of law, 
 chargeable with contributory negligence. 
 
 Read v. N. Y. Cent., Etc., R.''^ was a case growing out of the same 
 accident as that of Noakes against the same defendant {supra). In 
 this case the plaintiff was a man of full age, seated on the rear seat 
 of the automobile in a position where he could have seen the train and 
 warned the driver of the automobile to stop his machine, thereby 
 avoiding the accident. The court hold, that he was guilty of contribu- 
 tory negligence on the ground that the duty of a passenger in an auto- 
 
 "119 N. Y. App. Div. 487, 104 N. Y. S. 9S- 
 
 =2 120 N. Y. App. Div. 639, 105 N. Y. S. 547- 
 
 s^See also Turck v. N. Y. Cent. etc. R., 108 App. Div. 142, 95 N. Y. Supp. iioo. 
 
 =*i2i N. Y. App. Div. 716, 106 N. Y. S. 522. 
 
 "=123 N. Y. App. Div. 228, 107 N. Y. S. 1068. 
 
 787 
 
§ I205 PASSBNGEES 
 
 mobile to look and listen at a railroad crossing, is governed by age, sex 
 and position in the vehicle. 
 
 In Pendroy v. Great Northern Ry.=« plaintiff's daughter was acting 
 as chauffeur and he was seated in the tonneau. On approaching the 
 railroad crossing, the view of which was obstructed, they both looked 
 and listened. Defendant's switching engine was engaged in shifting 
 cars, one of which collided with the automobile. The court say : 
 
 ''That while it is true that on account of obstructions to 
 their view, plaintiff and his driver were in duty bound to exer- 
 cise a higher degree of care than otherwise would have been 
 required, 'we believe that under the weight of authority and 
 the better-considered cases they cannot be held guilty of con- 
 tributory negligence as a matter of law, merely because they 
 did not stop and listen. * * * Fair-minded men might hon- 
 estly differ under all the facts as disclosed by the evidence, 
 whether the exercise of such precaution was exacted of them. 
 * * * In other words, it cannot be said as a matter of law 
 that they or either of them were guilty of contributory negli- 
 gence.' " 
 
 A female guest may be guilty of contributory negligence where she 
 knows the party is watching for a dangerous railroad crossing and 
 she pays no attention while if she had looked she would have noticed 
 the track and poles for a long distance to the side of the road.°^ 
 
 A woman riding in an automobile with her husband is not negligent 
 where she tells him to look out for a train on approaching the track 
 and continues to look for a train and first sees it when within ten feet 
 of the track where her husband has meanwhile stood up and looked 
 and thrown out his clutch."' 
 
 § 1205. Knowledge that driver careless. — A statement by a guest 
 that she knew her host was a careless driver is admissible to show her 
 negligence in driving with him."*' 
 
 § 1206. Passenger remaining in car when driver intoxicated. — 
 While the negligence of the driver is not imputable to a passenger yet 
 the conduct of one riding and continuing to ride in an automobile 
 
 "817 N. Dak. 433, 117 N. W. Repr. 531. 
 
 "'United Rys. & Electric Co. v. Grain, 123 Md. 332; 91 Atl. 405. 
 
 s'Senft V. Western Md. Co., 246 Pa. 446. 
 
 "Lawrence v. Sioux City, Iowa 154 N. W. 494. 
 
 788 
 
CARE OP § 1207 
 
 when he must have known that the driver is intoxicated established in- 
 dependent negligence in the plaintiff."" 
 
 § 1207. Passenger on rear seat.— Where the plaintiff was a pas- 
 senger seated on the rear seat her contributory negligence was theo- 
 retically a question for the jury but where there is no evidence bearing 
 on her negligence the failure to leave the question to the jury is not 
 error."^ 
 
 § 1208. Failure to jump. — The failure of a passenger in an auto- 
 mobile to jump from it before an accident is not conclusive of her neg- 
 ligence. One in a position of peril not created by his own negligence 
 has a right to make a choice of means to be used to avoid peril and he 
 is not held to a strict accountability if he takes an unwise course.*^ 
 
 § 1209. Passenger remaining in unlighted car. — ^A passenger 
 guest is guilty of contributory negligence where he remains in the car 
 driven after dark without proper lights as he with knowledge of the 
 danger has remained in such dangerous position. The rule was ap- 
 plied to a case where the headlights gave out and the party stopped at 
 the next town to get a new gas tank but failed to find one and then 
 drove on over a very little frequented country path with one of the 
 passengers standing on the running board trying to look ahead."' 
 
 The fact that plaintiff was riding as passenger in a vehicle without 
 a light as required by law does not as matter of law render him guilty 
 of contributory negligence unless the omission of such light was in 
 some way the proximate cause of the accident. This is not the case 
 where it appears the defendant saw the wagon in ample time to avoid 
 the accident."* 
 
 § 121 0. Duties of passenger in general, — It is the duty of a pas- 
 senger or guest in an automobile to use reasonable care for his own 
 safety. It cannot be said that he is guilty of negligence because he 
 does nothing. In situations of great and sudden peril meddlesome 
 interference with the operator, either by physical act or by disturbing 
 
 »"I<ynn v. Goodwin, Cal. 170 Cal. 112, 148 Pac. 927, 9 N. C. C. A. 915. See § 927. 
 
 "•Clark V. Public Service R. Co., 83 N. J. L. 319; 85 Atl. 189. 
 
 "^Indiana Union Traction Co. v. Love, 180 Ind. 442, 99 N. E. 1005. See § 1088 
 et seq. 1225. 
 
 83Rebillard v. Minneapolis, St. P. & S. S. M. Ry., C. C. A. 8th Cir., 216 Fed. 
 S03, L. R. A. 191S, B. 9S3. 
 
 "*Grahara v. Hagmann, 270 111. 252, no N. E. 337- 
 
 i 789 
 
§ 121 1 PASSENGERS 
 
 suggestions and needless warnings may be exceedingly disastrous in its 
 result. 
 
 If there be threatened danger which is known to the passenger and 
 unobserved by the driver the passenger would be guilty of negligence 
 if he failed to warn the driver, also if the driver be careless or reckless 
 in his conduct and this be known to the passenger it would be his duty 
 to remonstrate with him if there be proper opportunity and if he per- 
 sisted to leave the vehicle. But where the peril comes suddenly these 
 considerations do not apply.'" 
 
 § 121 1. Care on highways by passengers. — A passenger "who 
 knows that a public highway is in a dangerous condition, and yet who 
 voluntarily and without overruling necessity, attempts to pass over it 
 and is injured in consequence of its defective condition, cannot re- 
 cover damages from the town, although he was being driven by an- 
 other not a common carrier; and this because of his own negHgence, 
 not because of the negligence of the person driving him."'* 
 
 § I2I2. Passenger suggesting caution. — A passenger sitting be- 
 side the driver as his guest is not guilty of contributory negligence 
 when she suggests to her companion who is operating the machine to 
 be careful on approaching a street car track and they both look and 
 listen for the approach of a car but are hit by one which carries no 
 head light." 
 
 § 1213. Passenger failing to protest at excessive speed. — A guest 
 is not liable for the negligence of the driver merely because she did not 
 protest against the unlawful speed."' 
 
 It is not contributory negligence for a guest in an automobile to fail 
 to remonstrate with the chauffeur, over whom he had no control, be- 
 cause he was driving in violation of law eighteen miles an hour after 
 dark, or for failing to ask permission to leave the car."" 
 
 The negligence of the driver cannot be imputed to a guest. A guest 
 is not negligent in riding with the driver at an excessive speed where 
 
 «5Hermann v. Rhode Island Co., 36 R. I. 447 ; 90 Atl. 813. 
 
 ^oThompson Com. on Negligence, 2d ed., sec. 503. See Baltimore v. Maryland, 
 166 Fed. 641, C. C. A. 
 - o'Turney v. United Rys. Co. of St. Louis, 155 Mo. App. 513, 135 S. W. 93- 
 
 'sAnthony v. Kiefner, 96 Kan. 194, 150 Pac. 524. Routledge v. Rambler Auto 
 Co., Tex. Civ. App., 9S S- W. 749. 
 
 69Gary v. Geisel, 58 Ind. App. 618, 108 N. E. 876. 
 
 790 
 
RIGHTS AND tIABIUTlBS OF § I2I4 
 
 she had never been in the city before and had no reason to beheve that 
 the driver was incompetent where there is nothing to warn her of the 
 dangerous situation.'"' 
 
 There may however be circumstances under which the failure of a 
 passenger to protest at careless speed may be negligence/^ 
 
 A passenger sitting beside the driver is guilty of negligence if he sits 
 quiet while the driver approaches a horse and wagon across the road 
 without slacking speed.'^ 
 
 So where a police officer in uniform rides in an automobile as a guest 
 and does not protest against the unlawful speed at which it is driven 
 he cannot recover as he is guilty of negligence." 
 
 § 1214. Passenger urging high speed. — It is contributory negli- 
 gence if a new buyer of an automobile urges his instructor furnished 
 by the seller to run the car at high speed to "show off" its qualities to 
 his friends.''* 
 
 IIL Rights and Liabiuties of Passbngbrs. 
 
 § 1215. Unregistered vehicle — rights of passengers. 
 
 1216. Liability of passenger to third persons for driver's negligence. 
 
 1217. Remedies of the passenger. 
 
 1218. Collusive suit. 
 
 1219. Duty of operator to guest. 
 
 1220. No presumption of control against passenger as such. 
 
 1221. Suggestion by passenger of route, etc. 
 
 1222. Burden of proof. 
 
 1223. Functions of the court and of the jury. 
 
 1224. Reckless driving as applied to passengers. 
 
 1225. Fright and Terror. 
 
 1226. Criminal Liability of passenger. 
 
 1227. Misdemeanors. 
 
 § 12 1 5. Unregistered vehicle — rights of passengers. — Where the 
 statute prohibits the use of the highway by unregistered motor ve- 
 hicles, as in Massachusetts, passengers cannot recover for injuries su- 
 
 ^'Beach v. Seattle, 85 Wash. 379, 148 Pac. 39. 
 
 ^ijepson v. Crosstown St. Ry., 72 Misc. 103, 129 N. Y. S. 233, where it was held 
 negligent to ride in an automobile for 1,500 feet without protest at high speed. 
 
 '^Wentworth v. Waterbury, (Vt. 1916), 96 Atl. 334. 
 
 '^Hubbard v. Bartholomew, 163 Iowa 58, 144 N. W. 13, 49 L. R. A. N. S. 443- 
 
 TiBuick Automobile Co. v. Weaver, Tex. Civ. App., 163 S. W. 594, 6 N. C. C. A. 
 366. 
 
 791 
 
§ I2l6 , PASSENGERS 
 
 tained, because independently of all questions of negligence, the vehicle 
 is unlawfully on the way, those who are using it are not travelers but 
 are trespassers on the highway, and are there against the rights of all 
 persons lawfully using the way. Even though the passenger is ig- 
 norant of the fact, his ignorance v^ill not avail for it is at his own peril 
 that he undertook to use a vehicle the use of which is prohibited by 
 law.'= In states where the statute does not go to the extent of prohibit- 
 ing the use of such vehicles, the passenger may recover under the usual 
 rules, provided the failure to register and display the number plates in 
 no way contributed to the cause of the injury J" 
 
 § 12 16. Liability of passenger to third persons for driver's negli- 
 gence. — Mr. Justice Reed, in Nesbit v. Gardner (Town)," says: 
 
 "If he is but the guest of the other, and neither has nor as- 
 sumes the right to direct or control the conduct of the driver, 
 * * * he would not be answerable to a third person for an in- 
 jury caused by the negligence of the driver." 
 
 This, however, is subject to the qualification of the exercise of due 
 care on the part of the passenger himself, in similar degree as pointed 
 out in situations previously considered. 
 
 § 12 1 7. Remedies of the passenger. — As has been stated in some 
 of the authorities already considered, the passenger has remedy for any 
 injuries sustained by him, against either the driver of the vehicle of 
 which he is the occupant, or against a third person causing the acci- 
 dent, or he may sue both.''* 
 
 Of course the doctrine of master and servant applies between the 
 passenger and the owner of the vehicle, in cases of negligence by the 
 driver or servant, rendering such master responsible for the act of his 
 negligent employee.'^' 
 
 Mears, in his "Law of the Motor Car" (Eng.), p. 61, quotes Little 
 V. Hackett,*" and states that the charge to the jury in that case (quoted 
 
 '^Feeley v. City of Melrose, 205 Mass. 329, 91 N. E. 306; Dudley v. Northamp- 
 ton Street Ry. Co., 202 Mass. 443, 89 N. E. 25. 
 
 '6Hemming v. New Haven (City), 82 Conn. 661, 74 Atl. Repr. 892 (Conn). 
 See for more particular discussions of this question, ante § 1086. 
 
 'T75 Iowa, 314, 39 N. W. Repr. 516. 
 
 'SLittle V. Hackett, 116 U. S. 366, 6 S. Ct. 391 (quoted sec. 1239) ; Shultz v. Old 
 Colony St. Ry., 193 Mass. 309, 79 N. E. 873 (quoted sec. Ii99)- 
 
 "See Chapter XXIV. 
 
 80116 U. S. 3=6, 6 S. Ct. 391. 
 
 792 
 
RIGHTS AND IvIABILlTlES 01? § I217 
 
 elsewhere in this chapter) "embodies what are no doubt now the recog- 
 nized rules of English law" namely, that the passenger 
 
 " 'may recover damages from any party by whose fault or neg- 
 Ugence the injury occurred, whether that of the driver of the 
 carriage in which he was driving, or of the driver of the other. 
 He may sue either. The negligence of the driver of the car- 
 riage in which he is riding will not prevent him from recovering 
 damages against the other driver if he was negligent at the same 
 time.' " 
 
 In Reg. V. Jones" Mr. Justice Lush charged the jury: 
 
 "I hold it to be a matter of law that a man who takes an- 
 other man into a trap with the intention of driving him, is bound 
 to exercise reasonable care, both in regard to the safety of the 
 man under his charge and also in regard to the safety of the 
 persons whom he may meet in the road." 
 
 In Robinson v. N. Y. C. & H. R.^^ the plaintiff was a guest of the 
 owner of the vehicle, one Conlon. The collision occurred at a railroad 
 crossing between the vehicle and a railroad train. Plaintiff sued the 
 railroad. Chief Judge Church, who wrote the opinion of the Court of 
 Appeals, remarks : 
 
 "Suppose Conlon had, by grossly negligent driving, turned 
 over the carriage and injured the plaintiff, is there a doubt but 
 he would be liable to an action for the injuries in her behalf? 
 These views proceed, of course, upon the assumption that there 
 was no relation of pricipal and agent, or master and servant. 
 Nor were they engaged in a joint enterprise in the sense of mu- 
 tual responsibihty for each other's acts, as in Beck v. East River 
 Ferry Company (6 Robertson 82)." 
 
 In Morris v. The State" the deceased was a passenger riding in 
 Morris' wagon. Morris drove in such a manner that deceased was 
 thrown out, or in terror jumped out of the wagon and was killed. 
 Morris was indicted for negligent homicide and convicted, and the con- 
 
 "iiCox Crim. S4S (Eng). 
 8266 N. Y. II, 13. 
 
 883s Tex. Crim. 313. See also Grant v. Armstrong and Bell Fuel Co., SS Wash. 
 36s, 104 Pac. Rep. 632, 33 S. W. 539. 
 
 793: 
 
§ I2l8 PASSeNGERS 
 
 viction was affirmed. The upper court held, That Morris "was charged 
 with notice that his acts endangered the life of the deceased." Mr. Jus- 
 tice Henderson says : 
 
 "The question in this case, we think, were fairly submitted 
 to the jury, and from the evidence they believed that the ap- 
 pellant was negligent under the circumstances, in driving his 
 team at a furious rate of speed while the deceased was riding 
 in his wagon, and that such rate of speed created an apparent 
 danger, causing the death of deceased, and that the same was 
 negligence on his part. The verdict (jf the jury, is, in our opin- 
 ion, supported by the evidence in this case, and the judgment 
 should be affirmed." 
 
 § 1218. Collusive suit.^ — It was claimed in a Maryland case that a 
 suit by a guest against the owner was collusive for the purpose of fix- 
 ing liability on the insurance company but the court rules that where 
 the real and primary object of the suit is to redress the plaintiff's 
 grievance and there is an actual controversy the suit should not be dis- 
 missed.** 
 
 § 1219. Duty of operator to guest. — ^AU that is said elsewhere con- 
 cerning the duty which the operator owes to the public, can with equal 
 force be said concerning the duty which he owes to his passengers, ex- 
 cept possibly in a case where there is a conflict of duties in which one 
 or the other has to give way. Situations of the latter class are specially 
 referred to in the chapter on chauffeurs. In Reg. v. Jones,*' (Eng.), 
 Mr. Justice Lush, charged the jury : 
 
 "I hold it to be a matter of law that a man who takes another 
 man into a trap with the intention of driving him is bound to 
 exercise reasonable care, both in regard to the safety of the man 
 under his charge and also in regard to the safety of the persons 
 whom he may meet in the road." 
 
 In Morris v. The State'* the accused was indicted and convicted of 
 "negligent homicide" in driving a horse and wagon at such a reckless 
 pace that the deceased was thrown out, or in terror, jumped out and 
 was killed. The evidence showed the driver to have been intoxicated 
 
 8*Fitzjarrel v. Boyd, 123 Md. 497; 91 Atl. 547. 
 "11 Cox Crim. Cas. 543. 
 *«3S Tex. Crim. Repr. 313. 
 
 794 
 
RIGHTS AND UABIUTIES OP § I219 
 
 and racing with another vehicle on the highway at the time. Mr. Jus- 
 tice Henderson, speaking for the court, says : 
 
 "The gist of the charge against appellant was rapid and negli- 
 gent driving. The charge in the indictment is, that he was 
 thrown from the wagon. Evidently he was hurled to the ground 
 with a great deal of force, and whether his being so thrown and 
 hurled from the wagon was without any volition on his part, 
 but simply on account of the speed of the driving, or whether 
 in an attempt to get out of said vehicle, he was violently thrown 
 therefrom, it occurs to us is immaterial. In either event appel- 
 lant was liable for his negligence in driving at such a furious 
 rate of speed. * * * 
 
 "It would appear to be immaterial whether he was thrown 
 from the wagon wholly without any volition on his part, or 
 thrown from it while exercising volition to save himself on ac- 
 count of the rapid and dangerous speed at which it was being 
 driven. * * * 'j^j^g questions in this case, we think, were 
 fairly submitted to the jury, and from the evidence they believed 
 that the appellant was negligent, under the circumstances, in 
 driving his team at a furious rate of speed while the deceased was 
 riding in his wagon, and that such rate of speed created an ap- 
 parent danger, causing the death of the deceased, and that the 
 same was negligence on his part." 
 
 The operator is liable to an invited guest to use ordinary care not to 
 increase his danger as by fast and reckless driving.'^ 
 
 One who accepts an invitation to ride in an automobile does not re- 
 linquish his claim to protection and the owner and driver is liable to 
 him for negligent operation.*' 
 
 Where an owner of an automobile invites another to ride with him 
 as a guest his duty is to use ordinary care not to increase the danger 
 or to create any new danger. He is not bound to furnish a safe auto- 
 mobile but if he fails to use ordinary care in driving he thereby creates 
 a new danger for which he is liable.*® 
 
 Both at common law and in equity garage keepers have a lien upon 
 a car to secure storage charges.'" 
 
 '^Fitzjarrel v. Boyd, 123 Md. 497; 91 Atl. 547. 
 
 "sPerkins v. Galloway, (Ala.) 69 So. 875. 
 
 «»Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319, So L. R. A. N. S. iioo. 
 
 '"Malcolm v. Sims-Thompson Motor Car Co., Tex. Civ. App., 164 S. W. 924. 
 
 795 
 
§ I220 PASSBNGBRS 
 
 § I220. No presumption of control against passenger as such. — 
 The mere fact standing by itself, that a person is an occupant of a ve- 
 hicle, raises no presumption that he is in control thereof, or possessed 
 of authority to direct its operation. In Nesbit v. Earner (Township)" 
 Mr. Justice Reed, considering the whole subject of the doctrine of 
 identification, and discrediting Thorogood v. Bryan, supra, sec. 1195, 
 says that to make the passenger liable : 
 
 "The relation of principal and agent must exist in fact. The 
 law will not create or presume the relation from the mere fact 
 that he accepted the invitation of another to ride in his car- 
 riage. If he is but the guest of the other and neither has nor 
 assumes the right to direct or control the conduct of the driver, 
 neither he nor the owner can be regarded as his servant." , 
 
 In Hannigan v. Wright,^^ a motor vehicle case, the defendant claimed 
 "that he was neither the owner of the automobile which struck the 
 plaintiff, nor did he in any manner have the direction and control of it 
 or of the person operating it at the time of the accident," in other 
 words, that he was a passenger. Mr. Justice Pennewill, in charging 
 the jury, said on this point : 
 
 "If the defendant was not the owner of said automobile, yet 
 if he had control of it so as to be able to govern its management, 
 negligence in operating the machine would be the negligence of 
 the defendant.^' 
 
 § 1 22 1. Suggestion by passenger of route, etc. — Mere suggestions 
 of the route of travel and the like, do not create a situation of control 
 so as to render the passenger liable. In Zimmerman v. Union Ry Co.°* 
 it was held that, a gratuitous passenger riding with the owner of a 
 vehicle, and taking no part in the management of the horse, is not 
 rendered chargeable with the driver's negligence merely because he 
 makes suggestions concerning the route to be taken."' 
 
 Where a son who owns a car takes his mother to ride with him as 
 his guest for pleasure to try out his new car the fact that at her request 
 
 9175 Iowa, 314, 319, 39 N. W. 516. 
 
 8263 Atl. Repr. 236. 
 
 »'See also Routledge v. Rambler etc. Co., 95 S. W. Repr. 749 (Tex. Civ. App). 
 
 9*28 N. Y. App. Div. 445, Si N. Y. S. i. 
 
 »5See Am. Dig. 1898, 4691, sec. 47. 
 
RIGHTS AND LIABILITIES OF § 1222 
 
 he drove round on a certain road so she could do an errand does not 
 make it a joint enterprise so she is liable for his negligence. 'This is 
 a mere incident of the ride.®* 
 
 § 1222. Burden of proof.®' — The rules concerning the burden of 
 proof of negligence on the part of the defendant, and freedom from con- 
 tributory negligence on the part of the plaintiff, are the same as in 
 cases of actionable negligence generally* In Massachusetts and New 
 York, and in a limited number of states, the plaintiff must prove as 
 a part of his case, freedom from contributory negligence. In a ma- 
 jority of the states the rule differs as is pointed out in the chapter on 
 "Actionable Negligence."" 
 
 § 1223. Functions of the court and of the jury. — The questions of 
 due care, proximate cause, negligence, and contributory negligence, 
 are to be resolved in cases of this description, as in cases of actionable 
 negligence generally. In Allyn v. Boston & A. R.®' Mr. Justice Mor- 
 ton says : 
 
 "The question of due care is generally for the jury to de- 
 termine; but where the uncontroverted facts in a case show 
 negligence on the part of the plaintiff, or where there is no evi- 
 dence to show that he used due care, it is the duty of the court to 
 instruct the jury to return a verdict for the defendants."^ 
 
 § 1224. Reckless driving as applied to passengers. — ^The provi- 
 sion of the motor vehicle law covering reckless driving, and driving so 
 as to endanger the lives and safety of the public, has been held in Eng- 
 land not to apply to the occupant of the vehicle.^ 
 
 In Troughton v. Manning* the circumstances were that the plaintiff 
 hung upon the side of defendant's automobile without defendant's in- 
 vitation. After being carried along for a distance he fell off. He sued 
 
 '"Anthony v. Kiefner, 96 Kan. 194, 150 Pac. S24- See further ante, § 1024. 
 
 9'See §§ 1652, et seq. 
 
 s'AIIyn V. Boston & A. R., los Mass. 77, 78; Shultz v. Old Colony St. Ry., 
 193 Mass. 309, 79 N. E. 873; Miller v. B. & N. St. Ry., 197 Mass. 535. 83 N. E. 
 990; Brickell v. N. Y. C. & H. R. R., 120 N. Y. 290, 24 N. E. 449- 
 
 99i05 Mass. 77, 78. 
 
 iSee also Chadbourne v. Springfield St. Ry., 199 Mass 574, 85 N. E. 737- 
 
 ^For copy of English Motor Vehicle Act in this particular, see ante § 448. 
 
 »92 L. T. (Eng. K. B.), 855. 
 
 797 
 
§ ^225 PASSENGERS 
 
 for injuries sustained on the ground of negligent and reckless driving 
 under the statute. Mr. Justice Kennedy says : 
 
 "I do not think that this was within the section, properly and 
 fairly read, for my view of the intention of the section is to pre- 
 vent misconduct in the management of a motor car towards the 
 public who were outside it on the highway. The section was not 
 meant for the protection of persons on the car itself, but was 
 tor the protection of persons using the highway. I do not think 
 that the intention was to punish anyone who was reckless as re- 
 gards passengers on the car." 
 
 § 1225. Fright and terror.— Elsewhere* has been considered the 
 subject of acts done or omitted by passengers in moments of emergency 
 or while laboring under conditions of fright or terror. The general 
 doctrine may at this time be briefly stated in the language of Mr. Jus- 
 tice Geary in his charge to the jury, in Mitchell v. Charleston, I^. & P 
 Co.:= 
 
 _ "When one is placed by the negligence of another in a situa- 
 tion of peril, his attempt to escape danger, even by doing an act 
 which is in itself dangerous and from which injury results, is 
 not contributory negligence such as will prevent him from re- 
 covering."" 
 
 § 1226. Criminal liability of passenger. — Responsibility in crimi- 
 nal cases, attaches only where the passenger joined or participated in 
 the commission of the offense. If he exercised no influence or control 
 over the operation of the car, it does not seem that under any circum- 
 stances criminal liability would attach to him. In a number of states, 
 there are statutes prohibiting the "use" of motor vehicles at prohib- 
 ited speeds and the like, the violation of which is misdemeanor. A 
 passenger may well be said to be a user, but this does not seem to effect 
 the principle above stated. If the contrary were true and the motor 
 vehicle was being run at an excessive speed, even though the passen- 
 ger protested against the violation of law, but remained seated therein 
 and did not jump out, he might be held to be a participant. No re- 
 ported case has ben found covering the exact state of facts, but it 
 
 *See §§ 1088, el seq. 
 
 "43 S. C. 146, 151, i6o- 
 
 'See also Benner Livery & U. Co. v. Busson, 58 111. App. 17. 
 
 798 
 
RIGHTS AND LIABIUTIES O? § 1227 
 
 seems clear that participation in the unlawful act at least by consent or 
 acquiescence, is necessary to constitute the liability/ 
 
 In the matter of responsibility where the offense amounts to a felony, 
 and the passenger is the instigating cause, the subject has received at- 
 tention in the chapter on Criminal Negligence.' 
 
 § 1227. Misdemeanors. — In Com. v. Sherman^ it was held that in 
 cases of misdemeanor, such as over-speeding and the like, "all who 
 participate in the commission of the offense are principals and may be 
 chargeable as such." Elsewhere, in the same opinion, Mr. Justice 
 Loring remarks: 
 
 "If the defendant is guilty here he is guilty not as owner but 
 because the evidence warranted the jury in finding as a fact that 
 he participated in the vehicle being run at an illegal speed." 
 
 'See § 121S. 
 
 sSee §§ 1460, et seq. 
 
 9191 Mass. 439, 78 N. E. 98. 
 
 799 
 
CHAPTER XLI. 
 
 COMMON CARRIERS. 
 I. In Generai,. 
 
 § 1228. What is a common carrier. 
 
 1229. Taxicabs. 
 
 1230. Taxicabs as "carriages" or hacks. 
 
 123 1. Motor vehicles as carriers of passengers and merchandise — degree 
 of care. 
 
 1232. Distinction between carriers of goods and carriers of passengers. 
 
 1233. The vehicle, its appliances and repairs — carrier not an insurer. 
 
 1234. Presumption of negligence. 
 
 1235. Gratuitous passengers. 
 
 1236. Sight seeing automobile. 
 
 1237. Ultra vires acts of carrier corporation. 
 
 1238. Liability of carrier carrying automobile. 
 
 1239. Concerning passengers in Public hacks. 
 
 1240. "Hack line" defined. 
 
 1241. Rules and regulations. 
 
 1242. Licensing acts. 
 
 1243. Competency of driver — condition of the hack, etc. 
 
 § 1228. What is a common carrier. — The motor vehicle is coming 
 into increasing use in a commercial capacity. It is already found in 
 nearly every line of business. Associations and corporations have been 
 organized with the motor car as a means of transporting both passen- 
 gers and property as common carriers. A brief consideration only, of 
 the outlines of the principles controlling common carriers and their re- 
 sponsibilities, will be undertaken. Without going into the distinction in 
 definition between the terms "common carrier" and "common carrier of 
 passengers,"^ it may be found sufficient to follow the statute definition 
 in California, which has been incorporated in the codes or statutes of a 
 tmmber of other states : 
 
 "Everyone who offers to the public to carry persons, prop- 
 erty, or messages, excepting only the graphic messages, is a com- 
 mon carrier of whatever he thus offers to carry." 
 
 iCiv. Code, sec, 2168. 
 
 800 
 
IN GENERAL § 1229 
 
 The distinction between such carriers and private carriers is that the 
 former holds himself out to all persons who choose to employ him, as 
 ready to carry for hire, while the latter agrees in some special case 
 witli some private individual to carry for hire. The common carrier's 
 employment is public, and he is bound to carry the goods and persons 
 of all who demand carriage and who comply with his reasonable terms.^ 
 
 The essence of the distinction between the two classes of carriers is 
 that in order to constitute one a common carrier, it is necessary that he 
 hold himself out to the public as such.^ 
 
 And "one may hold himself out as a common carrier not only by ad- 
 vertising, but by actually engaging in the business and pursuing the 
 occupation as an employment."* 
 
 What constitutes a common carrier in any particular case, is a ques- 
 tion of law, but whether a party comes within the class, is a question 
 of fact.= 
 
 § 1229. Taxicabs.' — A "taxicab" is to be classed with the public 
 horse-drawn hack, or, to use the English name, a "hackney carriage." 
 Such vehicles are usually operated for public service by individuals or 
 corporations, as were the older style omnibuses and hack lines. They 
 may be presumed in most cases, to fall within the classification of car- 
 riers x)f passengers as described in the preceding sections. The word 
 is new but it is in common use and no proprietary interest in it can be 
 acquired. Having in mind its origin the coinage of the word is obvious. 
 
 A "taximeter" is a device primarily for the purpose of recording the 
 distance traveled by a wheeled vehicle and mechanically registering the 
 fare to be paid by the passenger. It furnishes the best means for com- 
 putation because of the absence of human interposition and the conse- 
 quent chances of miscalcuation, provided the instrument is correct in 
 construction, in good order, and honestly mounted on the vehicle. In 
 England these contrivances are subject to inspection and test by public 
 officials,^ and in Massachusetts such powers are conferred upon the 
 
 ^AUen V. Sackrider, 37 N. Y. 341, 342. 
 
 ^McGregor v. Gill, 114 Tenn. 521, 86 S. W. 318. 
 
 *Thompson on Carriers of Pass., p. 26 n. i ; Lemon v. Chandler, 68 Mo. 340, 
 358; Bennett v. Button, 10 N. H. 481. 
 
 ^Pennewill v. CuUen, S Har. 238, 241 (Del.). 
 
 «See Webster Int. Diet. 1910. 
 
 ^See R. B. Whitman, in Scientific American of January 30, 1909, and J. F. 
 Gairns, in Cassier's Magazine for October, 1908. These articles are valuable 
 to the lawyer in preparing an appropriate case for trial. 
 
 801 
 
 51 
 
§ 1230 COMMON CARRIERS 
 
 state commissioner of weights and measures by chapter 541, Acts of 
 1909. Elsewhere the rapid increase in number of these vehicles, and 
 their popularity in large cities is referred to, also the responsibility of 
 their owners and operators." To fasten upon the proprietors the char- 
 acter of carriers of passengers, it is immaterial whether or not they 
 ply their vocation "within the limits of a town," or from one town to 
 another. (Thompson on Carriers of Passengers, p. 26, n. i.) The 
 character of the business will ordinarily give rise to a presumption that 
 they are public passenger carriers. 
 In Parmelee v. McNulty,'" Chief Justice Caton says : 
 
 "The court was authorized to take notice that the owner of an 
 omnibus line is a common carrier, just as much as the owner 
 of a railroad, or of a line of steamboats. The court will take 
 notice of the general meaning of words, and we know that an 
 omnibus line means a line of coaches for the carriage of pas- 
 sengers and their baggage. If this line was established for other 
 purposes, that should have been shown in defence."*'' 
 
 In Commonwealth v. Walton,'« the case turned upon the question 
 as to the meaning of the term "hack line" under a statute requiring 
 licenses. The point now under consideration does not appear in the 
 reported case. 
 
 § 1230. Taxicabs as "carriages" or "hacks."'— The only impor- 
 tance of the point lies in the question whether this class of vehicles falls 
 within the provisions of hack laws and ordinances which were in their 
 origin designed to apply to carriages drawn by animals.^" 
 
 This question will depend on the exact terms of the regulations and 
 the surrounding circumstances. In some cases taxicabs have been 
 held to be included within hack regulations." 
 
 8See § 258. 
 
 saip in. 556. 
 
 8bSee also Parmelee v. Lowitz, 74 111. 116. 
 
 8C31 Ky. Law Reps. 9i6, 104 S. W. 323. 
 
 »See §§ 2, 8. 
 
 loSee ante, § 8. 
 
 "District of Columbia v. Fickling, 33 D- C. App. 37^. See Lynch v. Murphy 
 Hotel Co., 130 App. Div. 691, 115 N. Y. S. 46s, reversing 112 N. Y. S. 9i5- con- 
 cerning a lease of a hackstand for taxicabs. 
 
 802 
 
IN GENgRAI, § 1 23 1 
 
 An ordinance governing the use of "vehicles" carrying passengers 
 for hire will apply to taxicabs although the ordinance was passed in 
 1894 before motor vehicles were used." 
 
 A taxicab is "a public conveyance provided for passenger service" 
 under the terms of an accident policy.^^ 
 
 In other cases the courts have found taxicabs not to be included in 
 hack regulations. A taxicab is not exempt as a "cart or wagon one dray 
 or truck, one coupe, one hack or carriage for one or two horses." It is 
 not within the literal terms of the statute.^* 
 
 In a recent Massachusetts case^" the court remarks : 
 
 "The only question in the case is whether the word 'carriage' 
 used in the statute includes automobiles. The same question 
 was fully considered in Doherty v. Ayer, 197 Mass. 241," 
 "in reference to the word 'carriage' as used in" another 
 statute. "Much of what was said in that case is equally appli- 
 cable to the case now before us." While the reasons for such 
 a statute are the same in reference to an automobile as for a 
 carriage, the statute, being of a criminal nature, must be strictly 
 construed in favor of defendant. It is certain that when the 
 statute was enacted the legislature "had no thought of a vehicle 
 * * * whose operation is similar to a locomotive engine on 
 railroads. While such vehicle may be called a carriage in the 
 broad sense that it is used to carry persons and property, it is 
 not commonly referred to as a carriage, but is distinguished from 
 carriages by another name to designate a vehicle of an entirely 
 different character. We are of opinion that automobiles are not 
 included in this statute." 
 
 § 1 23 1. Motor vehicles as carriers of passengers and merchan- 
 dise—degree of care.— Chief Justice Gardiner, in Hegeman v. The 
 Western R.," in 1855, speaking in a railroad case, says : 
 
 "It has been said that every wayfarer must take the risks in- 
 cident to the mode of travel he adopts ; but these risks are only 
 those which cannot be avoided by the carrier of passengers by 
 
 "State V. Dunklee, 76 N. H. 439; 84 Atl. 40 Am. Cas. 1913 B. 754. 
 "Primrose v. Casualty Co., 232 Pa. St. 210; 81 Atl. 212; 37 L. R. A. N. S. 
 618 (note). 
 "In re Wilder, (Dist. Ct. Cal.), 221 Fed. 476. 
 i^Comm. V. Goldman, 205 Mass. 400, 91 N. E. 392- 
 "13 'N. Y. I, 24. 
 
 803 
 
§ 1232 COMMON CARRIBRS 
 
 the utmost degree of care and skill in the preparation and man- 
 agement of the means of, conveyance. Angel on Com. Carr., sec. 
 523. The carrier, in the language of other judges, is bound to 
 use all precautions, as far as human care and foresight will go, 
 for the safety of his passengers. 2 Kent. 602, 7th Ed., and cases 
 cited. In the application of these principles, it is obvious that 
 the same precautions will not exonerate the carrier of passengers 
 from responsibility in every mode of travel. The foresight and 
 preparation that would suffice to satisfy the rule in one species 
 of navigation or conveyance, would not answer in another ; and 
 the external examination, which in connection with the repu- 
 tation of the builder of a stage coach, would and ought to satisfy 
 the scruples of the most cautious person, as to the safety and 
 security of a vehicle designed to run from six to eight miles the 
 hour, would not satisfy any reasonable man as to the sufficiency 
 of another intended to sustain a far greater weight, and to be 
 propelled by steam thirty, forty or fifty miles in the same time." 
 
 An automobile common carrier is liable to all the duties and obli- 
 gations of any common carrier. So an automobile company is liable 
 where a ticket agent sold its tickets to the plaintiff and then by mistake 
 put the plaintiff in the automobile of a rival company in which he was 
 injured.^'' 
 
 § 1232. Distinction between carriers of goods and carriers of 
 passengers. — Mr. Mears, in "The L,aw of the Motor Car" (Eng.)," 
 states the English and American law concerning common carriers, on 
 the subject of the distinction between the responsibility of carriers of 
 goods and carriers of passengers, as follows : 
 
 "^The difference between the liabilities of a common carrier 
 of goods and those incurred by a carrier under a duty, whether 
 contractual, statutory, or at common law, to carry passengers 
 has been well defined by Mansfield, C. J., in Christie v. Griggs, 
 2 Camp. 79 (Eng.). "There is a difference between a contract 
 to carry goods and a contract to carry passengers. For the 
 goods, the carrier is answerable at all events; but he does not 
 warrant the safety of his passengers. His undertaking to them 
 goes no farther than this — that, as far as human care and fore- 
 sight can go he will provide for their safe conveyance.' "'* 
 
 "Denker Transfer Co. v. Pugh, 162 Ky. 818, 173 S. W. 139, 8 N. C. C. A. 
 
 723- 
 isp. gp. 
 
 I'See Ingalls v. Bills, 50 Mass. i, 13; Camden & Amboy R. v. Burke, 13 
 
 Wend. N. Y. 626; Hollister v. Nowlen, 19 Wend. (N. Y.) 236, Hollister v. 
 
 Nowlen, 19 Wend. (N. Y.), 236; Elkins v. Boston & M. R., 23 N. H. 275, 284. 
 
 804 
 
IN GENEEAI, § 1233 
 
 In Paterson v. Chicago M. & St. P. Ry. Co., '" the defendant was a 
 common carrier and as such received for transportation plaintiff's auto- 
 mobile. The action was for damages to the machine, alleged to have 
 been sustained while in the possession of defendant. Defendant con- 
 tended that the automobile was received by it in "bad order" from the 
 railroad company who had theretofore carried it. Plaintiff showed 
 that the machine was in good condition when delivered to the initial 
 carrier, and in bad condition when delivered to him. Chief Justice 
 Start, speaking of this feature of the evidence, says : 
 
 "It was sufficient to establish a prima facie case that the 
 automobile was received by the defendant in good condition." 
 
 The testimony shows that when defendant received it, the machine 
 was marked in "bad order," but does not show that when the defendant 
 delivered it to plaintiff "it was in the same condition * * * as it 
 was when the defendant received it." 
 
 § 1233. The vehicle, its appliances and repairs — carrier not an 
 insurer. — Under this caption in another connection, is considered^^ the 
 duty of carriers to furnish well constructed vehicles, sufficiently sup- 
 plied with all proper safety appliances, and kept in such good order 
 and repair as will on all occasions, confer instant and complete control 
 upon the operator. Default in any of these particulars, the conse- 
 quence of which is injury or loss, renders the owner liable in the same 
 degree as for negligent operation. In the case of carriers of goods 
 and passengers, the duty demands the highest degree of care. Under 
 no circumstances, however, is the carrier of passengers an insurer,^' 
 but in the case of carriers of goods, they are generally liable for al\ 
 consequences which are not the result of an act of God, the public 
 enemy, or inherent defects in the goods themselves. Carriers may 
 make contracts, however, limiting the liability to a qualified extent.^' 
 
 § 1234. Presumption of negligence. — Saltonstall v. Stockton,^* was 
 a case wherein the defendants were proprietors of a stage line, in one 
 
 2»9S Minn. 57, 103 N. W. 621. 
 2iSee §§ 225, 552- 
 -2 See § 232, Insurer. 
 
 23Ingalls V. Bills, 50 Mass. i ; Hegeman v. Western R., 13 N. Y. i, 24 ; Elliott 
 on Railroads, sees. 1478, 1587, 1588. 
 ^^Tane/s Cir. Ct. Dec. i, 16 (affirmed, 13 Peters, 181). 
 
 80s 
 
§ 1235 COMMON CARRIERS 
 
 of whose coaches plaintiff was a passenger. The coach upset on the 
 road and plaintiff's wife was injured. Chief Justice Taney, in charg- 
 ing the jury at circuit, said, concerning carriers of passengers : 
 
 "Moreover, every one who undertakes the business of a car-, 
 rier of persons is bound to know all the hazards to which it is 
 exposed, and that by the exercise of reasonable skill and proper 
 care, the traveler can be carried in safety. When, therefore, *a 
 passenger is injured, the presumption is that it has been occa- 
 sioned by negligence. * * * The same rule of evidence as to 
 negligence must prevail in relation to every carrier of passen- 
 gers, whether by stage coaches conducted by horse-power, or 
 in steamboat, or railroad cars driven by steam. * * * The 
 burden of proof, therefore, being upon the defendant, the ques- 
 tion arises, what is the degree of skill and care which they are 
 bound to exercise? * * * It is incumbent, therefore, upon 
 the defendant to prove that the driver possessed and exercised 
 that degree of skill which competent drivers, in like business 
 usually possess, and ought to possess, in order to convey the 
 passengers with safety and comfort; and that he exercised, at 
 the time of the accident, the utmost prudence and caution ; for 
 in performing a duty of this kind, where the lives and health 
 of so many citizens are intrusted to his care, the law requires 
 of him a high degree of caution and prudence, and the least 
 negligence on his part, which produces bodily injury to the pas- 
 senger, will render the carrier liable." 
 
 § 1235. Gratuitous passengers. — In order to constitute the rela- 
 tion of carrier and passenger, no payment of a fare or toll is essential. 
 Philadelphia & Reading R. v. Derby, ^' was a case in which the railroad 
 company was carrying Derby gratuitously as an invited guest. Mr. 
 Justice Grier says in this respect concerning Derby, that he "was law- 
 fully on the road at the time of the collision" and that the duty of the 
 railroad was, — 
 
 "to carry him safely. This duty does not result alone from the 
 consideration paid for the service. It is imposed by the law, even 
 while the service is gratuitous."" 
 
 Some of the cases note a distinction between simple negligence and 
 great or gross negligence, and it has been said that "one who acts 
 
 2=14 How. U. S. S. C. 468. 
 
 2«See Coggs V. Bernard, i Smith's Leading Cas. 11 ed., p. 173 and cases 
 cited. 
 
 806 
 
IN GENfiRAi; § 1236 
 
 gratuitously is liable only for the latter" but as stated in Coggs v. 
 Bernard/' "the confidence induced by undertaking any service for an- 
 other, is a sufficient legal consideration to create a duty in the perform- 
 ance of it." 
 
 § 1236. Sight-seeing automobile. — One of the most common types 
 of motor vehicle common carriers is the sight-seeing automobile built 
 to carry large numbers of people to points of interest in our large 
 cities. 
 
 A sight-seeing automobile carrying twenty-four persons which made 
 regular trips over a certain route and for which tickets were on sale 
 at public places is a common carrier and the operator is bound to 
 exercise the highest degree of care consistent with the proper trans- 
 action of the business.^^ 
 
 The negligence of the chauffeur of a sight-seeing automobile cannot 
 be imputed to a passenger.^" 
 
 The use of a street in front of a store for a stand for sight-seeing 
 automobiles is not incidental to the use of the store and may be inter- 
 fered with by the lessor of the building by the maintenance of a taxi- 
 cab stand.^" 
 
 § 1237. Ultra vires acts of corporation. — ^Whether the display of 
 advertisements on automobile stage coaches is ultra vires of a domestic 
 corporation is a question for the state courts alone.'^ 
 
 § 1238. Liability of carrier carrying automobile. — ^A common 
 carrier taking an automobile as freight is liable to the owner for any 
 damages occurring to it in passage. It is often difficult to prove just 
 v/hen the damage occurred. In a recent case it is said, 
 
 "Plaintiff showed that the machine was in good condition 
 when delivered to the initial carrier and in bad condition when 
 delivered to him. 'This was sufficient to establish prima facie, 
 
 2'Smith's Leading Cases, n ed., p. 188. 
 
 28Hinds V. Steere, 209 Mass. 442; 95 N. E. 844; 35 L. R. A. N. S. 658 (note) 
 I N. C. C. A. 134; McFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 652, 
 143 S. W. 884; Sightseeing Automobile, Injured in — ; injury to passenger 
 caused by negligent operation of automobile, i N. C. C. A. 134-138 note. 
 
 29Rush V. Metropolitan St. Ry. Co., 157 Mo. App. 504, 137 S. W. 1029. 
 
 sou. S. Restaurant & Realty Co. v. Schulte, 67 Misc. 660, 124 N. Y. S. 835. 
 
 3'Fifth Avenue Coach Co. v. New York, 221 U. S. 467, 31 Sup. Ct. 709. 
 
 807 
 
§ 1239 COMMON CARRIERS 
 
 that the automobile was received by the defendant in good con- 
 dition.' The testimony shows that when defendant received 
 it the machine was marked in 'bad order,' but does not show 
 that when the defendant delivered it to plaintiff 'it was in the 
 same condition * * * as it was when the defendant re- 
 ceived it.' "'^ 
 
 § 1239. Concerning passengers in public hacks. — The renting of 
 motor vehicles with their drivers, has grown to be a business of such 
 large proportions, and so extensive has been the development of the 
 "taxicab" business, that consideration of the responsibility of the 
 lessors of such vehicles to their passengers, is of consequence to every- 
 one. In the chapter on Agency, and in the chapter on Garages, this 
 subject is presented from other standpoints. At this time it is consid- 
 ered only in respect to the liability which the owner of the vehicle or 
 garage sustains to the passenger for injuries suffered by such passenger. 
 The general principles of law applicable to livery stables and public 
 hacks, apply with equal force to the garage proprietor and to the hack 
 owner.'^ 
 
 In Little v. Hackett,^* the Circuit Court, in its instructions to the 
 jury, spoke as follows: 
 
 "Where a person hires a public hack or carriage which at the 
 time is in the care of the driver, for the purpose of temporary 
 conveyance, and gives directions to the driver as to the place or 
 places to which he desires to be conveyed and gives no special 
 directions as to his mode or manner of driving, he is not re- 
 sponsible for the acts or negligence of the driver ; and if he sus- 
 tains an injury by means of a collision between his carriage and 
 another he may recover damages from any party by whose fault 
 or negligence the injury occurred, whether that of the driver of 
 the carriage in which he is riding or of the driver of the other, 
 he may sue either. The negligence of the driver of the carriage 
 in which he is riding will not prevent him from recovering dam- 
 ages against the other driver if he was negligent at the same 
 time." 
 
 Mr. Justice Field, of the Supreme Court, who wrote the affirming 
 opinion, criticizes the doctrine of Thorogood v. Bryan,'° saying that it 
 
 a^Patterson v. Chicago, M. & St. P. Ry. Co., 95 Minn. 57, 103 N. W. 621. 
 s^See § 522, et seq., Garages. Smith v. O'Brien, 46 Misc. 325, 94 N. Y. Supp. 
 673; Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. Repr. 606, 611. 
 s*ii6 U. S. 366 6 S. Ct. 391. 
 8S8 C. B. IIS, 122 (M. G. & S.). 
 
 808 
 
IN GUNERAI^ § 1239 
 
 "rests upon indefensible grounds," and reviews a large number of cases 
 in American states. Continuing, the court say, in approving the charge 
 in the lower court : 
 
 "There is no distinction in principle whether the passengers 
 be on a public conveyance like a railroad train or an omnibus 
 or be on a hack hired from a public stand in the street for a 
 drive. Those in a hack do not become responsible for the negli- 
 gence of the driver, if they exercise no control over him further 
 than to indicate the route they wish to travel or the places to 
 which they wish to go. If he is their agent so that his negli- 
 gence can be imputed to them to prevent their recovery against 
 a third party, he must be their agent in all other respects so far 
 as the management of the carriage is concerned, and responsi- 
 bility to third parties would attach to them for injuries caused 
 by his negligence in the course of his employment. But as we 
 have already stated, responsibility cannot, within any recognized 
 rules of law, be fastened upon one who has in no way interfered 
 with and controlled in the matter causing the injury. From 
 the simple fact of hiring the carriage or riding in it no 'such 
 liability can arise. The party hiring or riding must in some way 
 have cooperated in producing the injury complained of before 
 he incurs any liability for it. 'If the law was otherwise,' as said 
 by Mr. Justice Depue in his elaborate opinion in the latest case 
 in New Jersey, 'not only the hirer of the coach but also all the 
 passengers in it would be under a constraint to mount the box 
 and superintend the conduct of the driver in the management 
 and control of his team, or be put for remedy exclusively to an 
 action against the irresponsible driver or equally irresponsible 
 owner of a coach taken, it may be from a coach stand, for the 
 consequences of an injury which was the product of the cooper- 
 ating wrongful acts of the driver and of a third person, and that 
 too, although the passengers were ignorant of the character of 
 the driver, and of the responsibility of the owner of the team, 
 and strangers to the route over which they were to be carried.' 
 18 Vroom 171. 
 
 "In this case it was left to the jury to say whether the plaintiff 
 had exercised any control over the conduct of the driver, further 
 than to indicate the places to which he wished him to drive. 
 The instruction of the court below that unless he did exercise 
 such control and required the driver to cross the track at the 
 time the collision occurred the negligence of the driver was not 
 imputed to him, so as to bar his right of action against the de- 
 
 3»See also "Mears Law of the Motor Car" (Eng.), p. 61. 
 
 809 
 
§ 1240 COMMON CARRIERS 
 
 fendant, was therefore correct, and the judgment must be af- 
 firmed."^* 
 
 Randolph v. O'Riordon,^^ was a case in which the plaintiff hired a 
 hack from one Bryant to attend a funeral, which hack while en route 
 came into collision with a heavy wagon belonging to O'Riordan, one of 
 the defendants, whereby the plaintiff was injured. The plaintiff sued 
 both O'Riordon and Bryant. Mr. Justice Morton, who wrote the 
 opinion of the Supreme Court, extensively reviews the authorities on 
 this subject, and says: 
 
 "The presiding judge intsructed the jury in substance, among 
 other things, that they might find one or both of the defendants 
 liable ; that in order to find either liable they must find that there 
 was carelessness on the part of his driver which was the natural, 
 probable, and proximate cause of the accident; and that if the 
 accident was due to the carelessness of both drivers, then both 
 defendants were liable." 
 
 § 1240. "Hack line" defined. — ^The following definition of a "hack 
 line," with reference to automobiles and other vehicles, is given by Mr. 
 Justice Barker, in Com. v. Walton:^' 
 
 "To go to the depot in search of customers is no more oper- 
 ating a hack line than to go to a regular hack stand and there 
 wait customers. * * * 'Stage line,' 'railroad line,' and 'au- 
 tomobile line' are expressions which are ordinarily understood 
 to mean a regular line of vehicles for public use, operated be- 
 tween different points, or between different cities, and do not 
 include hacks, stages or automobiles which merely operate from 
 point to point, in one city, for the transportation of the public." 
 
 § 1 24 1. Rules and regulations. — Rules and regulations prescribed 
 by public authority, concerning the business of driving hacks and fixing 
 the fares to be charged, apply with equal force to motor vehicles used 
 for like purposes.'* 
 
 § 1242. Licensing acts. — In Washington Elec. Vehicle T. Co. v. 
 Dist. of Columbia,*" the action was brought under a special "licensing 
 act" of 1871. The court held that an electric automobile was not a 
 
 37i5s Mass. 331, 29 N. E. 583- 
 
 8831 Ky. L. Reps. 916, 104 S. W. 323- 
 
 3»Fonsler v. Atlantic City, 70 N. J. L. 125, 36 Atl. 119. 
 
 «I9 App. D. C. 462- 
 
 810 
 
JITNEYS § 1243 
 
 hack in the sense of that act, because the act was a licensing act pro- 
 viding penalties, and as electric vehicles were not knoWn in 1871, there- 
 fore its scope could not be extended. But in Gassenheimer v. District 
 of Columbia,*^ a subsequent case decided in 1906, under regulations 
 then in force, the question arose whether an automobile was a public 
 hack under the regulations requiring public hack licenses where ve- 
 hicles were used for hire. Chief Justice Shepard held that they were 
 within the regulations, declaring that every vehicle for the conveyance 
 of passengers for hire shall be considered a hack.*^ 
 
 § 1243. Competency of driver — condition of the hack, etc.*^ — 
 These points have elsewhere been considered. The proprietor's fail- 
 ure to supply a competent and skilful driver, and a safe vehicle, fur- 
 nished with suitable appliances in good working condition, will be re- 
 garded as negligence." 
 
 II. Jitneys. 
 
 § 1244. Definition. 
 
 124s. Included under vehicle. 
 
 1246. As Common carriers. 
 
 1247. Validity of special regulations. 
 
 1248. Experience of Driver. 
 
 1249. Classification by amount of fare. 
 
 1250. Fees. 
 
 1251. Bond. 
 
 1252. Rules as to operation — rates to be shown on machine. 
 
 1253. Inspection. 
 
 1254. Right of municipality to require license. 
 
 1255. Who may enforce regulations — ^injunction. 
 
 1256. Right to refuse or cancel license. 
 
 § 1244. Definition. — A "jitney" is 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 announced.*" 
 
 "26 App. D. C. 557. 
 
 «See § 3. 
 
 «See §§ 248, 1233. 
 
 "Johnson v. Coey, 237 111. 88, 86 N. E. 678. 
 
 *=Thielke v. Albee, 76 Oreg. 449, 153 Pac. 793. 
 
 811 
 
§ 1 245 COMMON CARRIERS 
 
 § 1245. Included under "vehicle."— The words "all other vehicles 
 used for hire," include automobiles or "jitney busses" especially when 
 automobiles were in common use when the ordinance in question was 
 passed.*" 
 
 § 1246. As common carriers. — ^Jitneys are common carriers and 
 subject to regulation and control as other common carriers.*' 
 
 § 1247. Validity of special regulations. — The introduction of jit- 
 neys has made necessary some special regulations to provide for the 
 safety of the public. In view of the number of this class of vehicles 
 operated upon the public streets especially upon the principal streets 
 already crowded, the speed at which they would naturally be operated 
 in order to make them pay on such a low rate of fare and the probable 
 lack of financial responsibility on the part of many operators, special 
 regulations as to condition of the vehicle, competency and fitness of 
 the operator and the operation of the car as well as security to protect 
 against improper or negligent operation may be essential to the public 
 safety.*' 
 
 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 right to use public highways is common in all citizens who may 
 use them for the business of carrying passengers for hire in common 
 with all other persons engaged in it. It is clear, however that the legis- 
 lature has full and complete power for drastic regulations of such busi- 
 ness and to take away the right to pursue it upon such highways as it 
 may see fit to devote exclusively to ordinary public uses or may limit 
 the times when the jitney service shall be given and the rates of fare 
 charged.^" 
 
 There is no inherent right to devote one's automobile to the public 
 use of carrying passengers for hire on the public streets. The city may 
 not only require him to pay a license tax but may regulate the manner of 
 
 *'Bx parte Counts, (Nev. 1915). i53 Pac. 93. 
 <7Dresser v. Wichita, g6 Kan. 820, 153 Pac. 1194. 
 *^Bx parte Cardinal, 170 Cal. 219, 150 Pac. 348. 
 ^^Bx parte Dickey (W. Va. 1915), 85 S. E. 781. 
 ^"Bx parte, Dickey (W. Va. 191S), 85 S. E. 781. 
 
JITNEYS § 1247 
 
 carrying on his enterprise. It may impose a license fee which is and 
 was intended to be prohibitive for the use of certain streets. The fact 
 that such ordinances may be of benefit to street railways is immaterial 
 as the city is interested in keeping up an efficient street railway sys- 
 tem." 
 
 The Washington statute of 191 5 requiring those desiring to run 
 motor vehicles in the streets carrying passengers for hire to obtain a 
 permit and file a bond is a regulation of motor vehicles and the court 
 will not interfere with a legislative declaration that an emergency ex- 
 ists requiring it to go into effect at once. It is an exercise of the 
 police power.'^ 
 
 A jitney bus ordinance is not void for exempting railroad cars, 
 street cars, sight-seeing automobiles, hotel busses and taxicabs from 
 its operation. The jitney is a new class of common carriers distinct 
 from those specified and therefore the classification is not unreason- 
 able."* So a Tennessee statute requiring "jitneys" to pay a license fee 
 and give bond is valid although it does not include street cars. 
 
 The act declares jitneys to be common carriers. Here is a new class 
 of common carriers differing in material respects from others. The 
 legislature may well have had in mind that the operators used vehicles 
 susceptible of becoming dangerous to the public, that they had no fixed 
 track on which to run, that they had no schedule, so that pedestrians 
 had no means of knowing when and where to expect them, that many 
 of them own their own 'machines and are financially irresponsible and 
 in the hands of careless drivers might cause much damage. 
 
 A jitney is distinct from a taxicab as the former is designed to travel 
 along distinct routes and at a fare common to all but the other is in- 
 tended for persons whose destinations involve varying distances and 
 lines of travel. More jitneys would be required than taxicabs and so 
 their use involves a greater danger. 
 
 The provision for a bond must tend to induce care in the operation of 
 the jitney. This would be the natural result of the owner's knowledge 
 that his negligence would create liability on the bond and in that event 
 
 siDresser v. Witchita, 96 Kan. 820, 153 Pac. 1194. 
 ^^State V. Howell, 82 Wash. 356, 147 Pac. 1159. 
 s^Thielke v. Albee, 76 Oreg. 449, 153 Pac. 793. 
 
§ 1248 COMMON CARRIERS 
 
 render it difficult if not impossible for him to continue the business 
 through renewal of the bond."* 
 
 The jitney ordinance is upheld although it applies to jitneys and not 
 to taxicabs. It suffices if the classification is practical. The provision 
 for a bond is valid. The legislature may well have thought that the 
 small fare charged would necessitate investment in cheap machines, 
 that the streets would be congested, that the jitneys would move and 
 stop at will in any part of the street, that contests of operators for 
 points of vantage would take place, that the desire and necessity to 
 collect many small fares would tempt operators to indulge in swift and 
 careless running, that by reason of the small investment required many 
 who are financially irresponsible would engage in the business. 
 
 This business is clearly distinguishable from the privately owned 
 automobile as the latter ordinarily has a single destination at which it 
 comes to rest. Its use is not urged to the limit to the reaping of profits. 
 
 Jitneys are distinguishable from street cars as they run on tracks in 
 one place and so are less liable to cause injury and the permanence 
 and cost of its roadbed afford indemnity for liability. 
 
 Assuming that taxicabs are common carriers they are distinguish- 
 able from jitneys as in traveling they are not under the temptation or 
 necessity of choosing the most traveled streets. The larger invest- 
 ment required in case of taxicabs and greater fare charged renders 
 them less likely to cause congestion.^^ 
 
 § 1248. Experience of driver. — A jitney ordinance is not void for 
 requiring operators to obtain from a city officer a certificate before ap- 
 plying for a license especially where an appeal is provided from his 
 arbitrary action. This business of using the highways for private gain 
 is not a natural right of citizens but is one which may be wholly denied 
 or permitted to some and denied to others. It is different from the 
 right of a citizen to travel upon the highway and transport his property 
 thereon which is a right common to all." 
 
 An ordinance providing that the operators of jitneys shall have had 
 at least thirty days' experience in the operation of automobiles is rea- 
 sonable."^ 
 
 "^Nolen V. Riechman, Dist. Ct. Tenn. 225 Fed. 812. 
 ""Memphis v. State, Tenn., 179 S. W. 631. 
 "Thieike v. Albee, ^() Oreg. 449, 153 Pac. 793. 
 
 57£;ir parte Cardinal, 170 Cal. 519, 150 Pac. 348, distinguishing Smith v. Texas, 
 233 U. S. 630, 34 U. S. Sup. Ct. 681. 
 
 814 
 
JITNEYS § 1249 
 
 § 1249. Classification by amount of fare. — A jitney buss ordi- 
 nance is reasonable although applying only to those charging ten cents 
 or less as it may well be. that the special danger to the public sought to 
 be guarded against is confined to just the class of vehicles described, 
 viz : automobiles used on the public streets for the carriage of passen- 
 gers at a very small charge, the same charge or only a few cents in 
 excess of the same charge as that made on street cars.'* 
 
 But a classification applying to jitneys charging fifteen cents or less 
 different from others has ,been held unreasonable discrimination."" 
 
 § 1250. Fees. — The fact that the use of jitneys has required the 
 use of extra patrolmen shows that the fee of $50 was in truth a license 
 fee only and not a revenue tax and that this section of the act is valid.*" 
 
 A difference may well be made in the regulation of motor busses, 
 which travel on fixed routes, and "rent cars" so called which stand at 
 fixed stands until hired. A greater fee may be charged in the former 
 case. The motor bus is continually in motion soliciting business at 
 any place on the streets.®^ 
 
 Where a charter provides that license fees shall be graduated accord- 
 ing to the business done an ordinance regulating the tax according to 
 the seating capacity of the jitney bus is reasonable."^ 
 
 An ordinance requiring a fee of one dollar in changing the route of 
 jitney busses is valid where the clerical cost of doing this will equal 
 the fees collected."^ 
 
 § 1251. Bond. — ^An ordinance requiring a bond of jitney bus 
 owners is reasonable."* 
 
 The bond required of jitney owners is a valid regulation. It does 
 not prescribe or alter liability in any way. It is sustained as a pro- 
 tection to the public against a dangerous business. The number of ac- 
 cidents in proportion to number of passengers carried and injuries has 
 been greater in this line of business than in any other commonly used. 
 
 ^^Bx parte Cardinal, 170 Cal. 519, 150 Pac. 348. 
 
 ^»Bx parte Dickey, (W. Va. 191S), 85 S. E. 781. 
 
 «»£;r parte Bogle, Tex. Crim. App. 179 S. W. 1193. 
 
 eiBooth V. Dallas, Tex. Civ. App. 179 S. W. 301. 
 
 '^Bx parte Counts, (Nev. 1915), iS3 Pac. 93. 
 
 «8Booth V. Dallas, Tex. Civ. App. 179 S. W. 301. 
 
 "^Bx parte Counts (Nev. 1915), 153 Pac. 93; Memphis v. State, Tenn. 179 S. W. 
 631. Bx parte Sullivan, Tex. Crim. App. 178 S. W. 537 ; State v. Howell, 82 
 Wash. 356, 147 Pac. iiS9; Nolen v. Riechman, Dist. Ct. Tenn. 225 Fed. 812. 
 
 81S 
 
§ 1252 COMMON CARRIERS 
 
 It was urged that for that reason it would be hard to get sureties either 
 individual or corporate, on the bonds."' 
 
 Where a city had exclusive control of its streets it had a right to 
 require bonds of jitneys for the benefit of third persons injured. The 
 jitney operator has no vested right to use the streets but this is a proper 
 condition to protect the public from danger."" 
 
 The requirement of the owners of jitney busses of a bond with 
 surety to $10,000 for payment of loss or damage from negligent opera- 
 tion or defective construction of a jitney bus is valid although a duly 
 organized surety company is required."' 
 
 § 1252. Rules as to operation — rates to be shown on machine. — 
 An ordinance requiring jitneys to stop at the near crqssing of inter- 
 secting streets to take on or discharge passengers, and that the rates 
 charged shall be plainly painted on the wind shield is upheld."* 
 
 § 1253. Inspection. — An ordinance is valid requiring weekly in- 
 spection of jitneys or motor busses and providing for a skilled inspec- 
 tor to make the inspection and decide whether the vehicle is safe to 
 run."' 
 
 § 1254. Right of municipality to require license."' — The fact that 
 a jitney has a state license does not bar a municipality from imposing 
 another license on jitneys where the state law was evidently not intend- 
 ed to deal with automobiles for hire as distinct from automobiles gen- 
 erally.'^ 
 
 Where a statute forbids the operation of jitneys except under munici- 
 pal license and the city has taken no action to provide for the issue of 
 such licenses the jitneys cannot be run.'^ 
 
 A city ordinance regulating jitney busses on the streets of a city does 
 not conflict with a general motor vehicle law." 
 
 § 1255. Who may enforce regulations — Injunction.-^A street 
 railway company may by bill in equity restrain the operation of un- 
 
 «^Bx parte Bogle, Tex. Crim. App. 179 S. W. 1193. 
 
 eeGreene v. San Antonio, Tex. Civ. App. 178 S. W. 6. 
 
 ^''Ex parte Cardinal, 170 Cal. 319, 150 Pac. 348. 
 
 68Thielke v. Albee, 76 Oreg. 449, 153 Pac. 793. 
 
 "'Booth V. Dallas, Tex. Cir. App. 179 S. W. 301. 
 
 ^"See further other cases in this subdivision. 
 
 'i^jir parte Counts, (Nev. 191S), IS3 Pac. 93. 
 
 '^Memphis St. Ry. Co. v. Rapid Transit Co., Tenn. 179 S. W. 635. 
 
 ■i^Bx parte Dickey, (W. Va. 191S), 85 S. E. 781. 
 
 816 
 
JITNEYS § 1256 
 
 licensed jitneys:^* But the operators of jitneys have no standing to 
 come into a court of equity and have a city enjoined from enforcing the 
 provision of a jitney ordinance which they claim to be invalid. They 
 have no property rights in the streets which equity will protectJ° ~ 
 
 § 1256. Right to refuse or cancel license. — A jitney ordinance is 
 not void which reserves to the city the right to refuse any licenses and 
 also to cancel a license at any time. This is only a proper and reason- 
 able regulation of a ha2ardous business." 
 
 An ordinance regulating jitneys is not unconstitutional because it 
 provides for forfeiture of rights to run jitneys on violation of the 
 ordinance.'^ 
 
 7*Memphis St. Ry. Co. v. Rapid Transit Co., 133 Tenn. 99, 179 S. W. 635. 
 ^6Le Blanc v. New Orleans, 138 La. 243, 70 So. 212. 
 ''^Bx parte Bogle, Tex. Crim. App. 179 S. W. 1193- 
 '^Greene v. San Antonio, Tex. Civ. App. 178 S. W. 6. 
 
 817 
 
 52 
 
CHAPTER XLII. 
 
 PEDESTRIANS. 
 1. Duties of Both Parties in GENeRAi„ 
 
 § 1257. Pedestrians have equal rights with autoists. 
 
 1258. Degree of care imposed on autoists. 
 
 1259. Forcing pedestrians to give way. 
 
 1260. Presumption of negligence in driver of vehicle. 
 
 1261. Duty to discover and avoid pedestrians. 
 
 1262. Duty of driver in rear seat to keep lookout. 
 
 1263. Driving in zigzag course looking behind. 
 
 1264. Seesaw motions. 
 
 1265. Driving through crowd. 
 
 1266. No right to assume pedestrian will keep his course. 
 
 1267. Excessive speed as ground for recovery. 
 
 1268. Automobiles racing. 
 
 1269. The duty of the motorist as prescribed by statute. 
 
 § 1257. Pedestrians have equal rights with autoists. — Pedestrians 
 and automobiles have equal rights to the use of the streets.^ Each must 
 use reasonable care under the circumstances,^ and autoists have no 
 legal right of way over pedestrians,' except in South CaroUna where 
 the court upholds a charge that a pedestrian in stepping into the 
 street must remember that vehicles have the right of way and give due 
 attention thereto, and should act as a man of ordinary prudence would 
 act.* 
 
 A pedestrian and the user of an automobile have equal rights upon 
 public highways ,and each is to use them bearing in mind the right of 
 the other and in such a manner as not to injure the other.' 
 
 iLane v. Sargent, 217 Fed. 237, 133 C. C, A. 231; Simeone v. Lindsay, 6 
 Pen. (Del.) 224, 65 Atl. 778; Hannigan v. Wright, S Pennew. Del. 537,63 Atl. 
 234; Harker v. Gruhl (Ind. 1916), ill N. E. 457; Vesper v. Lavender (Tex. 
 Civ. App.), 149 S. W. zn, 1912. 
 
 ^Brown v. Wilmington, 4 Boyce (Del.) 492, 90 Atl. 44. 
 
 ^Brewing v. Metropolitan St. Ry. Co., 180 Mo. App. 434 168 S. W. 248. 
 
 *McConn v. Muldoon, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914, A. 139. 
 
 ^O'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36. 
 
 818 
 
DUTIES OF BOTH PARTIES § 1 258 
 
 The beggar on his crutches has the same right to use the streets as the 
 driver of an automobile. Each is bound to the use of ordinary care for 
 his own safety and the prevention of injury to others." 
 
 As a summary of what is there said, and the relative rights of foot 
 passengers and vehicles, Dr. Thompson's observations are very com- 
 plete.'' He says : 
 
 "Foot passengers and those driving vehicles have equal rights 
 in the public streets, and both are required to exercise that de- 
 gree of care and prudence which the case demands. A foot- 
 man or a horseman has the right of way, as well as the driver 
 of a vehicle. The former cannot compel the latter to leave the 
 smooth and beaten track of the road, if there is sufificient room 
 to pass on either side. Where a road is narrow and there is dif- 
 ficulty in passing, if the footman or horseman can turn out 
 without danger to himself or beast, and the vehicle cannot be 
 turned out without incurring danger,^ it is the duty of the foot- 
 man or horseman to give way. * * * a foot passenger, 
 though he may be infirm from disease, has a right to walk in the 
 carriage way if he pleases, and is entitled to the exercise of rea- 
 sonable care on the part of the drivers of vehicles." 
 
 But sight must not be lost of the duty of the pedestrian to take "all 
 the precautions which a prudent person would have employed under 
 like circumstances," and the question of negligence by the one or the 
 other party, is for the jury.® 
 
 § 1258. Degree of care imposed on autoists.^" — "The operation 
 of an automobile upon the busy streets of a city necessitates exceeding 
 carefulness on the part of the driver. Moving quietly as it does with- 
 out the noise which accompanies the movement of a street car or other 
 ordinary heavy vehicle it is necessary that caution should be continuous- 
 ly exercised to avoid collisions with pedestrians unaware of its ap- 
 proach."" 
 
 'Millsaps V. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. N. S. 1177- 
 
 'At sec. 1300 (Com. on Negligence, 2 ed.). 
 
 ^Italics by the author of this book. 
 
 •Bowser v. Wellington, 126 Mass. 391; Murphy v. Armstrong Transfer Co., 
 167 Mass. 199, 45 N. E. 93 ; Barker v. Savage, 45 N. Y. 191 ; Bolton v. Baxter, 
 34 N. Y. 24s; Brooks v. Schwerin, S4 N. Y. 343. 
 
 See also Thompson Com. on Negligence, 2 ed., sees. 1328, 1329. 
 
 '"As to degree of care imposed, see ante § 233. 
 
 i^Domke v. Gunning, 62 Wash. 629, 114 Pac. 436. 
 
 819 
 
§ 1259 PEDESTRIANS 
 
 Although a higher degree of care rests upon the driver of a vehicle 
 because of the dangerous instrumentality which he controls yet the 
 right to the street lies in both parties, and their duty to exercise due 
 care is reciprocal.^^ 
 
 It is negligence for the defendant to drive his automobile over a 
 crosswalk in a thickly settled village at fifteen miles an hour when he 
 saw the plaintiff's intestate more than lOO feet away waiting for him to 
 pass.^' 
 
 § 1259. Forcing pedestrians to give way.^* — One of the duties in- 
 cumbent on one who operates an automobile is that of anticipating the 
 presence on the highway of other persons having rights to be there 
 equal with his own. So the pedestrian is required to anticipate the 
 presence of vehicles and others on the highway but this duty is not as 
 urgent as that devolving upon the driver of an automobile as his ca- 
 pacity for inflicting injury is less. The automobilist has no right to 
 fake advantage of the force, weight and power of his machine to com- 
 pel pedestrians to yield to his machine superior rights upon the high- 
 way.^® 
 
 § 1260. Presumption of negligence in driver of vehicle. — It seems 
 to be the English rule that against the driver "a presumption of negli- 
 gence exists when a foot passenger receives injury from a vehicle."" 
 
 In Cotterill v. Starkey^' it was said : 
 
 "It is quite clear * * * that persons driving carriages along 
 the road, are Uable if they do not take care so as to avoid driv- 
 ing against the foot passengers who are crossing the road ; and 
 if a person driving along a road cannot pull up because his reins 
 break, that will be no ground of defense, as he is bound to have 
 proper tackle." 
 
 In Boss V. Litton^' the chief justice said : 
 
 "A man has a right to walk in the road if he pleases. It is a 
 way for foot passengers as well as carriages" * * * (p. 409). 
 
 i2Minor v. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. N. S. 1178, 2 N. C C 
 A. 309. 
 isHamel v. Peabody (N. H. 1916), 97 Atl. 220. 
 ^^Pedestrians failure to run, see ante § 1098, post § 1277. 
 isQ'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36- 
 I'Mear's "Law of the Motor Car," p. 50. 
 I'B Car. & P. 694 (Eng.). 
 "S Car. & P. 408 (Eng.). 
 
 820 
 
DUTIES OF BOTH PARTIES § 1 26 1 
 
 "All persons, paralytic as well as others, had a right to walk in 
 the road, and were entitled to the exercise of reasonable care on 
 the part of the persons driving carriages along it."^' 
 
 This doctrine does not seem to have been fojlowed in this country 
 but it has been expressly repudiated in at least two states,^" while other 
 decisions all leave with the pedestrian the burden of proving his case in 
 all particulars. - 
 
 However it is well settled that it is negligence for the driver of a 
 conveyance having ample space to pass a pedestrian on a highway to 
 so guide his vehicle as to strike him in passing.^^ 
 
 § 1261. Duty to discover and avoid pedestrians. — The courts have 
 uniformly upheld the duty of the driver of the automobile not only to 
 avoid pedestrians in the street whom he sees unless they dart in front 
 of the car or run against it, but also to be on the watch and see pedes- 
 trians on the road. If for any reason as through darkness he cannot 
 see distinctly he must stop. This duty is imposed whether the pedes- 
 trian is at a regular crossing or not.^^ 
 
 A driver of an automobile owes a duty to a pedestrian on a street 
 not at a crossing to exercise ordinary care not to run into him. To say 
 that the driver owed him no such duty until they actually discovered 
 him on the street would be treating him as an intruder having no right 
 to be there.^^* 
 
 It is not a defense for a driver in the city that he did not see the 
 pedestrian whom he ran over. In attempting to pass over a crossing 
 which was necessarily frequented by pedestrians he is bound to look. 
 The duty to look implies a duty to see what is in plain sight.^' 
 
 There is no excuse for a chauffeur not seeing a man and girl who 
 alight from a street car at night and walk across the whole width of the 
 
 "Sfee also Rex v. Grout, 6 Car. & P. 629 (Eng.). 
 
 ^oMillsaps V. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. N. S. 1177; 
 Marius v. Motor Delivery Co., 146 App. Div. 608, 131 N. Y. S. 357- 
 
 2iSchock v. Cooling, 175 Mich. 313, 141 N. W. 675. 
 
 22Smith V. Coon, 89 Neb. 776, 132 N. W. 535 ; Seattle v. Franey Taxicab Co., 
 80 Wash. 396, 141 Pac. 890. 
 
 22aBartley v. Morris, Tex. Civ. App., 158 S. W. 1156. 
 , 2sHolderman v. Witmer, 166 Iowa 406, 147 N. W. 926. 
 
 821 : i 
 
I 1262 PEDEStRIANS 
 
 neutral ground under a bright light before being hit by the automo- 
 bile.^* 
 
 Where a person who is not careless but is properly walking along or 
 across a street is injured by an automobile rapidly driven upon him be- 
 fore he has reasonable opportunity to escape the party so driving is 
 liable.^^ 
 
 But it does not follow that if the occupants of an automobile could 
 see a pedestrian the operator ought to have seen her as a driver has 
 to give attention to a number of things and he may have been properly 
 watching something else.^" 
 
 § 1262. Duty of driver in rear seat to keep lookout. — One driv- 
 ing on the rear seat whose view is obstructed by passengers sitting in 
 the front seat is under a duty to keep a lookout not only straight ahead 
 but laterally ahead for pedestrians.^^ 
 
 § 1263. Driving in zig zag course looking behind.^' — ^Where the 
 driver of a truck is driving it in a zig zag course with his head over 
 his shoulder arranging some bags behind him this negligence may well 
 appear the sole cause of his running over a pedestrian.^' 
 
 § 1264. See saw motions. — It is not negligence for an operator of 
 an automobile to change his course on seeing a pedestrian where the 
 latter also changes her course and is hit.^° 
 
 § 1265. Driving through crowd. — A driver may be found liable 
 where in going by a large crowd a little girl steps suddenly in front 
 of the car which slid from twenty to forty feet after the accident 
 where if the defendant had had the car under control it could have 
 been stopped in three feet. The crowd was watching a street show.'^ 
 
 It may be inferred that the automobile struck the plaintiff and 
 knocked her down from the fact that she was standing at the edge of 
 
 2*Shields v. Fairchild, 130 La. 648, 58 So. 497- 
 
 25Golding V. White, 63 Fla. 298, 58 So. 367. 
 
 26SuIlivan v. Smith, 123 Md. 546, gi Atl. 4S6, 8 N. C. C. A. 378. 
 
 2'Aronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641. 
 
 2»See post § 1279. 
 
 29pox V. Great Atlantic & Pacific Tea Co., 84 N. J. L. 726, 87 Atl. 339, 4 N. C. 
 C. A. 6. 
 
 aoSuUivan v. Smith, 123 Md. 546, gi Atl. 456, 8 N. C. C. A. 378. As to seesaw 
 motions see further ante § 361. 
 
 siCrawford v. McElhenney, Iowa (1916), 154 N. W. 310. 
 
 822 
 
DUTIES OF BOTH PARTIES § 1 266 
 
 a crowd as the plaintiff drove by, that she was seen to fall and from 
 the fact that the rear wheel ran over her.'^ 
 
 § 1266. No right to assume pedestrian will keep his course. — A 
 request to charge that the defendant in driving down a state highway 
 had a right to assume that the plaintiff, a pedestrian, would continue in 
 the direction he was going until he gave reasonable notice of an inten- 
 tion to change is properly refused as this assumes that the plaintiff 
 was not in the exercise of due care in crossing the street.^^ 
 
 On the other hand a driver has the right to suppose that a person 
 whether on foot or in a vehicle, when duly warned in sufficient season, 
 will not cross his path, or attempt to do so, but if he does make such 
 attempt, it is the duty of the driver to do everything in his power to 
 avert accident.^* 
 
 § 1267. Excessive speed as ground for recovery.^^ — Evidence of 
 excessive speed so the defendant could not control his car is sufficient 
 to warrant the jury in finding for a pedestrian.^" 
 
 But a pedestrian may be found guilty of contributory negligence al- 
 though the defendant is driving at an illegal speed. The plaintiff's 
 negligence may still be the proximate cause of the accident.*' 
 
 § 1268. Automobiles racing.*' — The duty of exercising ordinary 
 care to avoid injury to a group of travelers in plain sight at least four 
 hundred feet ahead rests upon the drivers of two automobiles racing.*' 
 
 s^Haake v. Davis, 166 Mo. App. 249, 148 S. W. 4S0. 
 
 s^Love V. Sargent, C. C. A. i St. Cir., 217 Fed. 237. 
 
 "See §§ 
 
 Washington etc. Ry. v. Gladmon, 15 Wall. 401 ; Schultz v. New Orleans etc. 
 Ry., 44 La. Ann. 809, 10 So. Repr. 811 (La.); Garrett v. People's Ry. Co., 6 
 Pennew. 29 (Del.), 64 Atl. 254; Lampe v. Jacobson, 46 Wash. 536, go Pac. 654; 
 Sharpnack v. Des Moines City Ry., 115 N. W. Repr. 457 (Iowa) ; Diamond v. 
 Cowles, 174 Fed. Repr. 571 (Pa.), 98 C. C. A. 417. 
 
 The circumstances of each case are usually facts for the jury. Schienfeldt v. 
 Norris, 115 Mass. 17; Field v. Thompson, 119 Mass. 150; Hennessey v. Taylor, 
 189 Mass. 583; Stewart v. Baruch, 103 N. Y. App. Div. 577, 93 N. Y. S. 151; 
 Garside v. N. Y. Transp. Co., 146 Fed. Repr. 588, N. Y., affirmed IS7 Fed. Repr. 
 521, 1907; Simeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 778; Benoit v. Miller, 
 67 Atl. Repr. 87, R. L 
 
 '^As to excessive speed see further, § 987. 
 
 s'Sasso V. Carlson 96 Kan. 153, 150 Pac. S76. 
 
 "Davis v. Bruener Co., 167 Cal. 683, 140 Pac. 586. 
 
 s'See further § 1524, et seq. 
 
 s'Brown v. Thayer, 212 Mass. 392, 99 N. E. 237- 
 
 823 
 
§ 1269 PEDESTRIANS 
 
 § 1269. The duty of the motorist as prescribed by statute. — The 
 
 Massachusetts motor vehicle law briefly expresses the duty which the 
 operator of a vehicle owes the foot traveler : 
 
 "Upon approaching a pedestrian who is upon the traveled part 
 of any way and not upon the sidewalk * * * every person 
 operating a motor vehicle shall slow down and give a timely 
 signal with his_ bell, horn or other device for signaling."*" 
 
 II. Duty of Pedestrians in Generai,. 
 
 § 1270. Duty of watchfulness. 
 
 1271. Contributory negligence only in exceptional case. 
 
 1272. Knowledge of approach of car imposes duty of care. 
 
 1273. Must know of approach of automobile in time to avoid accident. 
 
 1274. Right to assume automobilists will be careful. 
 
 1275. Right to assume law of the road will be observed. 
 
 1276. Not enough that pedestrian thought she could cross safely. 
 
 1277. Failure to run. 
 
 1278. Pedestrian jumping in front of car swinging round corner. 
 
 1279. When motor vehicle is driven in zigzag course. 
 
 1280. Failure to see unlighted autoraobile.*i 
 
 § 1270. Duty of watchfulness. — Pedestrians as well as all others, 
 are "bound to exercise care according to the circumstances, and espe- 
 cially bound to the alert and watchful performance of the duty of 
 all travelers on all highways to look where they are going."*^ 
 
 In Belton v. Baxter,*' (a case decided by the Commission of Ap- 
 peals), it was said that it is negligence : 
 
 "For a foot traveler to attempt to cross a public thoroughfare 
 ahead of vehicles of any kind, * * * upon nice calculations, 
 of the chances of injury. If such attempt be made and the 
 
 *oAct of 1909, chap. 534, sec. 14. 
 
 *iSee SI L. R. A. N. S. 990. As to the duty of and towards a pedestrian in an 
 emergency see 51 L. R. A. N. S. 1005 note. 
 
 *2McIlhenney v. Philadelphia, 214 Pa. St. 44 ; Starr v. Schenck, 25 Montg. Co. 
 R. 18, 1907; Belleveau v. Lowe Supply Co., 200 Mass. 237, 86 N. E. 301; Can- 
 field V. N. Y. Transp. Co., 128 N. Y. App. Div. 450, 112 N. Y. S. 854; Seaman v. 
 Mott, 127 N. Y. App. Div. 18, no N. Y. S. 1040; McCormick v. Hesser, ^^ N. 
 J. L. 173, 71 Atl. Repr. 55; Tiffany & Co. v. Drummond, 168 Fed. Repr. 47 
 (N. Y.), 1909; 93 C. C. A. 469; Kauffman v. Nelson, 225 Pa. St. 174, 73 Atl. 
 1 105, 1909- 
 
 "54 N. Y. 24s, 247. 
 
 824 
 
DUTY IN GENERAL § 1 27 1 
 
 calculations fail to the plaintiff's harm, he can have no redress for 
 injuries received in his mistaken effort. It is not the exercise 
 of common or ordinary care." 
 Ordinary diligence requires the operator to be constantly on the 
 lookout and to have his machine in such condition that it shall be under 
 his perfect control. The pedestrian also is required to be on the look- 
 out but he has the right to assume that the drivers of all automobiles 
 are on the lookout for him too.** 
 
 "The farmer on a back and infrequented highway is not held to the 
 same degree 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."*' 
 
 § 1271. Contributory negligence only in exceptional case. — "The 
 cause is indeed an exceptional one where plaintiff'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 convey- 
 ance which is not required to travel in a particular place, as street cars 
 on the tracks, which of course suggest danger as always present."*" 
 
 §, 1272. Knovirledge of approach of car imposes duty of care. — 
 If a pedestrian knows that a car or other vehicle is being operated upon 
 the street in a negligent, reckless or negligent manner then a special 
 duty arises to use such additional care as reasonable prudence would 
 dictate in view of the increased danger.*' 
 
 In a plea averring that the plaintiff attempted to cross the road when 
 she knew that she was "liable" to be hit the word "liable" means "pos- 
 sibly" and not "probably."** 
 
 § 1273. Must know^ of approach of automobile in time to avoid 
 accident. — It is proper to refuse an instruction that if the plaintiff 
 knew or should have known of the approach of the automobile he can- 
 not recover as it was not only necessary that he should have known of 
 its approach but that he should have known of it in time to have avoided 
 the accident.*' 
 
 **0'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36; Grier v. Samuel, 4 
 Boyce (Del.), 74, 85 Atl. 7S9, 86 All. 209, 4 N. C. C. A. 2. 
 
 *=Aiken v. Metcalf (Vt. 1916), 97 Atl. 669. 
 
 *8Bongner v. Ziegenhein 165 Mo. App. 328, 342, 14 S. W. 182, 186. See fur- 
 ther ante §§ 990-1018. 
 
 *'Rump V. Woods, 50 Ind. App. 347, 98 N. E. 369- 
 
 *8Terrill v. Walker, 5 Ala. App. S3S. 59 So. 775. 
 
 *»Taxicab Company v. Emanuel, 125 Md. 246, 93 Atl. 807. 
 
 825 
 
§ 1274 PEDESTRIANS 
 
 § 1274. Right to assume automobilists will be careful. — ^A pedes- 
 trian has a right to presume that automobiles will not be run at an un- 
 lawful or dangerous rate of speed but at such speed as prudence re- 
 quires in view of all the conditions and circumstances. °'' 
 
 A public street crossing is not a dangerous place and all persons en- 
 tering thereon have a right to assume that all others about to use it 
 will exercise due care and caution to prevent injury.^^ 
 
 § 1275. Right to assume law of the road will be observed. — A 
 pedestrian on the street has the right to presume that persons driving 
 on the street will not in so doing violate any ordinance or law.°^ 
 
 The law of the road requiring one vehicle passing another going in 
 the same direction to turn to the left was not merely for the protection 
 of the travelers in vehicles but pedestrians also are entitled to rely 
 upon the presumption that it will be observed.^^ 
 
 § 1276. Not enough that pedestrian thought she could cross 
 safely. — A charge to the jury that if a child thought she could cross 
 in front of a motorcycle she had a right to suppose that the motorcycle 
 would stop in time is erroneous as it would permit her to hold the 
 cyclist responsible even though she ran suddenly and carelessly in front 
 of his wheel, provided only she thought she could get across in front of 
 it." 
 
 § 1277. Failure to run.^° — A pedestrian cannot as matter of law 
 be held guilty of contributory negligence merely because he does not 
 run to escape injury by an automobile."* 
 
 § 1278. Pedestrian jumping in front of car swinging round 
 corner, — Where the plaintiff suddenly jumps in the path of an auto- 
 mobile where it comes round a corner at high speed from behind with- 
 out warning he is not necessarily guilty of contributory negligence sim- 
 
 "oRurap V. Woods, 50 Ind. App. 347, 98 N. E. 369 ; O'Dowd v. Newnham, 13 
 Ga. App. 220, 80 S. E. 36 ; Williams v. Benson, 87 Kan. 421, 124 Pac. 531. 
 
 siGraham v. Hagman, (111.) 1916, no N. E. 337- 
 
 52Cole Motor Car Co. v. Ludorff, Ind., in N. E. 447. 1916. 
 
 ssposter v. Curtis, 213' Mass. 79, 99 N. E. 961, 42 L. R. A. N. S. n88, Ann. Cas. 
 1913, E. ni6. , 
 
 "Francis v. Atlantic City Gas Co., 83 N. J. L. 404, 85 Atl. 232. 
 
 ''^The motorist has no right to force pedestrian to give way, see 
 
 660'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36. 
 
DUTY TO LOOK AND LISTEN § 1279 
 
 ply because he acts in a way a reasonably prudent man would not act 
 if he had time for deliberation.^^ 
 
 § 1279. When motor vehicle is driven in zig zag course.^' — ^A 
 pedestrian is not necessarily negligent who while crossing the street 
 is struck by a truck driven in a zig-zag direction by a driver who is 
 looking behind him. She is under no legal duty to anticipate any ac- 
 tion on the part of the driver to imperil her safety.^* 
 
 § 1280. Failure to see unlighted automobile. — The case should be 
 submitted to the jury where there is evidence that the plaintiff, while 
 crossing the street, was hit by an automobile at dusk where he says he 
 looked up the street and did not see it although his view was unob- 
 structed. There was evidence that the automobile was dark colored 
 and unlighted and going fast.'" 
 
 III. PsDfisTRiAN's Duty to Look and Listen. 
 
 § 1281. Failure to look and listen is not necessarily negligence. 
 
 1282. Rules of railroad crossings do not prevail. 
 
 1283. When street unsafe for pedestrians. 
 
 1284. Looking in direction from which vehicles bound to come. 
 
 1285. Looking on alighting from another vehicle. 
 
 1286. Pedestrian need not continuously look. 
 
 1287. Looking and seeing automobile and not taking second look. 
 
 1288. Failure to take second look when pedestrian has right of way. 
 
 1289. Pedestrian watching one automobile hit by another. 
 
 1290. Pedestrian looking and believing he has time to cross. 
 
 1291. Pedestrian looking and seeing nothing. 
 
 1292. Where pedestrian could have seen automobile. 
 
 1293. Crossing street in a diagonal course. 
 
 1294. At regular crossing. 
 
 129s. When not at regular crossing. 
 
 1296. Walking while looking behind. 
 
 1297. No duty to look behind while walking in street. 
 
 1298. When defendant had last clear chance to avoid accident. 
 
 1299. Questions for jury. 
 
 1300. Relying on each other.*^^ 
 
 5'Blackwell v. Renwick, 21 Cal. App. 131, 131 Pac. 94. See also Spina v. New 
 York Transp. Co., 48 Misc. 524, 96 N. Y. Suppl. 270. 
 
 =8See ante § 1263, 1264. 
 
 =9Fox v. Great Atlantic & Pacific Tea Co., 84 N. J., L. 726, 87 Atl. 339; N. 
 C. C. A. 6. 
 
 ""Taxicab Co. of Baltimore City v. Emanuel, 125 Md. 246, 93 Atl. 807. 
 
 «iSee SI L. R- A. 997 note. 
 
 827 
 
§ I28l PEDESTRIANS 
 
 § 1281. Failure to look and listen is not necessarily negligence. — 
 
 A beggar on his crutches has the same right to the use of the streets 
 of the city as has the driver of an automobile and the former is not 
 bound to look and listen before crossing the street."" 
 
 An automobile on the streets of a city must keep a constant lookout 
 in anticipation of pedestrians but a pedestrian is not bound to be con- 
 tinually looking and listening to ascertain if autos are approaching."^ 
 
 What is due care in this regard will depend upon the character of 
 the street, the extent of its use by vehicles, the kind of vehicles that fre- 
 quent it and whether the pedestrian is at a crossing or not."* 
 
 In an Alabama case the court draws the very fine distinction between 
 attempting to cross a street without looking for a particular car and a 
 failure to look up or down the street in the direction from which the 
 car might be approaching. The former is not a good defense while the 
 latter may be.°° 
 
 § 1282. Rules of railroad crossings do not prevail. — A pedestrian 
 in crossing a street is not held to the same care as one crossing a rail- 
 road to look out for the approach of trains."" 
 
 The rule requiring one to stop, look and listen before crossing a 
 railroad track has no applicability to a person crossing a street. A 
 pedestrian has a right without looking or listening to presume that the 
 drivers of automobiles are obeying the law. Of course if a person 
 sees in dangerous proximity, an approaching automobile and attempts 
 to pass in front of it he is guilty of contributory negligence."' 
 
 The Pennsylvania court however seems to have applied its rigid rule 
 that persons crossing a railroad must stop, look and listen to pedes- 
 trians on the street except that the pedestrian need not stop. This court 
 holds for example that a pedestrian starting to cross the street has no 
 duty to stop but he must look and listen to ascertain if vehicles are 
 
 s^Millsaps V. Brogdon, 97 Ark. 469, 134 S. W. 632, 33 L,- R. A. N. S. ii77; 
 Aiken v. Metcalf (Vt. 1916), 97 Atl. 669. 
 
 630'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36; Barbour v. Shebor, 
 177 Ala. 304, 58 So. 276, I N. C. C. A. 120; Graham v. Hagman (111.), 1916, iioN. 
 E. 337; Vesper v. Lavender, (Tex. Civ. App.), 149 S. W. 377, 1912. 
 
 8*Adler v. Martin, 179 Ala. 97, 59 So. 597. 
 
 '"Terrill v. Walker, S Ala. App. 535, 59 So. 775, relying on Adler v. Martin, 
 179 Ala. 97, S9 So. S97. 
 
 eoMillsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. N. S. ii77- 
 
 8''Terrill v. Walker, s Ala. App. 535, 59 So. 775. 
 
 828 
 
DUTY TO LOOK AND LISTEN § I282 
 
 coming. He must further be on his guard after he starts across the 
 street and must continue on the alert while crossing the entire road- 
 way."' 
 
 For the purpose of setting out the point of what will amount to 
 an absence of due care by a foot passenger, the case of Mcllhinney v. 
 Philadelphia"" is apt. The facts were that after dark, the plaintiff, a 
 woman, started to cross a city street diagonally, about fifteen feet 
 from the crossing at which there was a street light. In so doing she 
 tripped over the curbstone, sustaining injuries. She testified, "I sup- 
 pose I was loking ahead of me — I don't know how I was looking. I 
 guess I must have been looking ahead of me somewheres. * * * I 
 don't know where I was looking. As you go along or I go along, I go 
 right on." The court in affirming judgment on non-suit said : 
 
 "Pedestrians in going from one side of a street to the other 
 are not confined to the regular crossings at the intersections, 
 but may cross at any point according to their convenience. But 
 in so doing they are bound to exercise care according to the 
 circumstances, and especially bound to the alert and watchful 
 performance of the duty of all travelers on all highways to look 
 where they are going.'" 
 
 In Cotton V. Wood,'^ Erie, C. J., remarks, that 
 
 "It is as much the duty of foot passengers attempting to cross 
 a street or road to look out for passing vehicles as it is the duty 
 of drivers to see that they do not run over passengers."'^ 
 
 esLorah v. Rinehart, 243 Pa. St. 231, 89 Atl. 967. 
 
 68214 Pa. St. 44, 13 Atl. 368. 
 
 '"Robb V. Connellsville Boro., 137 Pa. 42, 20 Atl. 564; West v. N. Y. Transp. 
 Co., 47 Misc. 603, 94 N. Y. Supp. 426, 190s; Wilkins v. N. Y. Transp. Co., 52 
 Misc. 167, loi N. Y. Supp. 650; Canfield v. N. Y. Transp. Co., 128 N. Y. App. 
 Div. 4S0, 112 N. Y. S. 854; Seaman v. Mott, 127 N. Y. App. Div. 18, no N. Y. 
 S. 1040; McCormick v. Hesser, ^^ N. J. L. i73, 7i Atl. 55. 
 
 "8 C. B. N. S. S68. 
 
 '^See the following motor vehicle cases: Caesar v. Fifth Ave. Stage Co., 4S 
 N. Y. Misc. 331, 90 N. Y. S. 3S9; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 
 224; Hannigan v. Wright, S Pennew. 537, 63 Atl. 234; Kathmeyer v. Mehl, 
 60 Atl. Repr. (N. J.) 40, 1905; Buscher v. N. Y. Transp. Co., 106 N. Y. App. 
 Div. 493, 94 N. Y. S. 79 E ; West v. N. Y. Transp. Co., 47 Misc. 603 ; 94 N. Y. 
 Supp. 426; Spina V. N. Y. Transp. Co., 48 Misc. 524, 96 N. Y. Supp. 270; May v 
 Allison, 30 Pa. Super. Ct. 50, 1905; Garside v. N. Y. Transp. Co., 146 Fed. 
 Repr. 588, 1906; Wilkins v. N. Y. Transp. Co., .52 Misc. 607, loi N. Y. Supp. 
 
 829 
 
§ 1283 PEDESTRIANS 
 
 We believe however that the Massachusetts rule is the wiser and 
 it certainly has the weight of authority, viz. That there is no impera- 
 tive rule of law requiring a pedestrian before crossing the public high- 
 way to look or listen to ascertain if automobiles are approaching.''' 
 
 The court distinguishes railroad crossings as being known places of 
 danger.^* 
 
 § 1283. When street unsafe for pedestrians. — ^I'he street may be 
 in such a turmoil that no reasonably prudent person would attempt to 
 cross it.'"' 
 
 So it may be negligence for a pedestrian to cross a certain road at a 
 certain point without looking at one time of day and not at another.'" 
 
 An instruction to the jury that a person on foot while lawfully using 
 a public street is not required to be continuously looking or listening 
 to ascertain whether automobiles are approaching is not correct. It 
 depends on the circumstances and is a question for the jury. A street 
 might be so congested as to render it very hazardous for a person to 
 attempt to cross without constantly looking and listening.''' 
 
 So negligence has been predicated on failure to look in both direc- 
 tions before crossing a busy city street.'" 
 
 § 1284. Looking in direction from which vehicles should ap- 
 proach. — It is clear that there is less duty to look for an automobile 
 traveling on the wrong side of the highway. 
 
 So a pedestrian starting from the west side of a street is not neces- 
 sarily negligent in not looking north as he leaves the sidewalk when he 
 reaches the middle of the street in safety as he had a right to presume 
 that vehicles coming from the north will observe the law and keep 
 
 650; Simeone v. Lindsay, 6 Pen. (Del.), 224, 65 Atl. 778; Gregory v. Slaughter, 
 124 Ky. 345, SI Tex. Civ. App. 447; Benoit v. Miller, 67 Atl. Repr. 87 (R. 1.), 
 1907; Lampe v. Jacobsen, 46 Wash. 536, 90 Pac. 654; Brewster v. Barker, 129 
 N. Y. App. Div. 724, 113 N. Y. S. 1026, igog. 
 
 ^'Rogers v. Phillips, 206 Mass. 308, 92 Atl. 327. 
 
 '^Hennessey v. Taylor, 189 Mass. 583, 586, 76 N. E. 224. 
 
 TBQinter v. O'Donoghue, Mo. App., 179 S. W. 732. 
 
 "Terrill v. Walker, s Ala. App. 535, S9 So. 775- 
 
 T'Rump V. Woods, 50 Ind. App. 347, 98 N. E. 369. 
 
 TSDavis V. Bruener Co., 167 Cal. 683, 140 Pac. 586; Benn v. Forrest, 213 Fed. 
 763, 130 C. C. A. 277 (3d Cir.). 
 
 830 
 
DUTY TO LOOK AND I<ISTfiN § 1 285 
 
 near the curb and had a right to look in the other direction when he 
 was hitJ° 
 
 The fact that a pedestrian is halfway across a street before a colli- 
 sion with an automobile coming from his left is a circumstance against 
 the theory of his contributory negligence, as from that point on he 
 was presumably in more danger of vehicles coming from the other di- 
 rection.*" 
 
 Where an automobile using the left roadway comes up behind pedes- 
 trians it must be remembered that the pedestrians could not see the 
 automobile, and that they did not anticipate the approach of a vehicle 
 from that direction.'^ 
 
 So a pedestrian standing in the street looking for an approaching 
 street car is not guilty of negligence as a matter of law in not discover- 
 ing the approach of the defendant's automobile from behind on the 
 wrong side of the street.*^ 
 
 § 1285. Looking on alighting from another vehicle. — ^Where a 
 person just before alighting from a wagon looks behind for automo- 
 biles and sees none and fails to look when he alights although if he had 
 looked then he could have seen the defendant approaching at a rate of 
 thirty miles an hour the question of his contributory negligence is for 
 the jury.** 
 
 § 1286. Pedestrian need not continuously look. — "A pedestrian 
 is not bound as matter of law when using a public highway, to be con- 
 tinuously looking or listening to ascertain if automobiles or other ve- 
 hicles are approaching under penalty that upon his failure to do so 
 his own negligence must be conclusively presumed.'* 
 
 A pedestrian crossing a vacant street in a quiet country village is 
 - not as matter of law bound to look after starting across the road.*' 
 
 '»Mosso V. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941. 
 
 soHoldeman v. Witmer, 166 Iowa 406, 147 N. W. 926. 
 
 "Raymond v. Hill, 168 Cal. 473, H3 Pac. 743. 
 
 s^Posener v. Long, Tex. Civ. App., 156 S. W. SQi, 4 N. C. C. A. g. 
 
 s'Rump V. Woods, 50 Ind. App. 347, 98 N. E. 369- 
 
 8«Deputy V. Kiramel, 73 W. Va. S9S, 80 S. E. 919, Si L. R- A. N. S. 989, 8 
 N. C. C. A. 369; Harker v. Gruhl (Ind. 1916), iii N. E. 4S7; Hennessey v. 
 Taylor, 189 Mass. 583, 585, 586. A pedestrian may recover who looks on leaving 
 the sidewalk, but not again. Harker v. Gruhl (Ind. 1916), in N. E. 457- 
 
 85 Aiken v. Metcalf (Vt. 1916), 97 Atl. 669. 
 
§ 1287 PEDESTRIANS 
 
 § 1287. Looking and seeing automobile and not taking second 
 look. — Where the pedestrian sees an automobile coming some dis- 
 tance away and proceeds in a uniform course without taking a second 
 look his negligence is for the jury.** 
 
 A pedestrian crossing the street who looks and sees the defendant 
 approaching about 800 feet away and does not look again may be found 
 in the exercise of due care. She had the right to assume that the 
 car was not approaching at an excessive rate.*' 
 
 Where a pedestrian, on starting across the street, saw an automobile 
 approaching rapidly one hundred feet away and did not look at it again 
 until it was within ten feet of him he is negligent as a matter of law.*' 
 
 § 1288. Failure to take second look when pedestrian has right 
 of way. — The plaintiff is not guilty of contributory negligence when 
 she observes an automobile a block away in not continuously observ- 
 ing it as it approaches where by law the pedestrian has a right of way 
 at crossings. The term right of way must have some bearing on the 
 relative rights of the parties and on the relative care required of the 
 parties.** 
 
 § 1289. Pedestrian watching one automobile hit by another. — A 
 plaintiff is not necessarily negligent when he crosses a street at the 
 proper crossing and looks in each direction and on seeing an automo- 
 bile approaching stops to let it pass. He is not bound to anticipate 
 that another vehicle will come rapidly out of a side street as he does 
 so and run into him."" 
 
 § 1290. Pedestrian looking and believing he has time to cross.— 
 Where a pedestrian at a place of great congestoin of traffic sees a taxi- 
 cab approaching twenty or twenty-five feet away under circumstances 
 which led him to form an opinion that there was ample time to pass in 
 front of it and starts to cross from one side to another of the street 
 and is struck, the questions of the plaintiff's due care and the defend- 
 ant's negligence are for the jury.°^ 
 
 ssChase v. Seattle Taxicab etc Co., 78 Wash. 537, 139 Pac. 499. 
 s^Williams v. Benson, 87 Kan. 421, 124 Pac. 531. 
 
 ssude V. Fuller, (Mich.), 153 N. W. 769. See West v. New York Transp. 
 Co., 47 Misc. 603, 94 N. Y. Suppl. 426, 1915. 
 sojohnson v. Johnson, 85 Wash. 18, 147 Pac. 649. 
 '"Keaveny v. Moran, 208 Mass. 277, 94 N. E. 274. 
 oiGriffin V. Taxi Service Co., 217 Mass. 52, 104 N. E. 838. 
 
 832 
 
DUTY TO LOOK AND LISTEN § I29I 
 
 § 1 29 1. Pedestrian looking and seeing nothing.'^— Where the ped- 
 estrian claims that he started across the street after looking in both 
 directions and not seeing an approaching automobile the questions in- 
 volved are for the jury."* 
 
 Where the plaintiff says that he looked up and down the street for 
 the plaintiff's automobile and did not see it while if he had looked he 
 must have seen it as it was in plain sight his testimony must be dis- 
 believed.'* 
 
 § 1292. Where pedestrian could have seen automobile. — If the 
 pedestrian saw the automobile or by the reasonable use of her senses 
 could have seen it, in time to avoid the injury, then recovery cannot be 
 had.°' This harsh rule has to be sure been laid down in the cases cited 
 but is governed by the weight of authority as noted in the preceding 
 sections of this chapter. 
 
 § 1293. Crossing street in a diagonal course. — A pedestrian is 
 not as matter of law negligent instarting across the street diagonally 
 without looking behind where he did not step directly in front of an 
 automobile and there is evidence that no horn was sounded and there 
 was plenty of room for the automobile to pass.*" 
 
 The questions are for the jury where the plaintiff, a pedestrian, 
 stepped off the sidewalk into the street and started in a diagonal direc- 
 tion, without looking behind, to board a street car when he is hit by an 
 automobile coming from behind at twenty-five miles an hour with no 
 warning."^ 
 
 § 1294. At regular crossing. — Mere failure of a pedestrian to look 
 and listen for approaching vehicles as he passes over a crosswalk at 
 the junction of two streets, is not necessarily negligence on his part, if 
 he is run over.'* 
 
 «2See SI L. R. A. N. S. 999- 
 
 ''Lampe v. Jacobsen, 46 Wash. 536, 90 Pac. 6S4- 
 
 o^Curley v. Baldwin (R. 1. 1914)- 90 Atl. i, 8 N. C. C. A. 379- 
 
 'BHannigan v. Wright, 5 Pennew. (Del.) 527, 63 Atl. 234; Wilkins v. New 
 York Transp. Co., 52 Misc. 167, loi N. Y. Suppl. 650. 
 
 ''Lewis V. Seattle Taxicab Co., 72 Wash. 320, 130 Pac. 341, 4 N. C. C. A. 10, 11. 
 
 "Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892, 4 N. C. C. A. 10. 
 
 "sMurphy v. Armstrong & Co., 167 Mass. 199, 4S N. E. 931 McCrohan v. 
 Davison, 187 Mass. 466, 73 N. E. SS3 ; Buscher v. N. Y. Transp. Co., 106 App. 
 Div. 493, 94 N. Y. S. 798 (N. Y.) 1905; King v. Green, 73 N. E. SS3, 94 Pac. 
 
 833 
 
 53 
 
§ 1295 PEDBSTEIANS 
 
 Where a pedestrian crosses a street on a crosswalk and before start- 
 ing looks in each direction and everything looks clear he cannot be 
 said to be guilty of negligence. This is so even though he had not 
 taken the precaution of looking as the duties of automobilists and 
 pedestrians are reciprocal. ** 
 
 § 1295. When not at regular crossing. — Pedestrians have been 
 held to a somewhat higher degree of care when crossing a street away 
 from a regular crossing than when using one. 
 
 So a newsboy has been guilty of contributory negligence in running 
 across the street, not at a crossing, without looking.^"" 
 
 At crossings on city streets the right of passage is common to all and 
 both pedestrians and drivers of motor vehicles are bound to exercise 
 reasonable care for their own safety and the safety of others upon the 
 street. The footman is not required as matter of law to look both 
 ways and listen but only to exercise such reasonable care as the case 
 requires. Both pedestrians and drivers are required to exercise that 
 degree of care and prudence which the conditions demand. It is im- 
 possible to formulate any more precise definition of these relative 
 rights and duties. However a pedestrian who crosses a street at a place 
 where there is no regular crossing may be chargeable with some addi- 
 tional vigilance because it is not a place set aside for the crossing of 
 foot passengers, although even at such a place drivers are required to 
 be watchful and careful. 
 
 The application of these simple rules to drivers of automobiles is 
 obvious. It is a fact of common knowledge that automobiles traverse 
 our city streets at much greater speed than other vehicles and yet they 
 are more easily controlled. In crowded centers the danger is propor- 
 tionate to the speed and there seems to be no good reason why the care 
 should not be measured by the danger.^ 
 
 in, 778; Weber v. Swallow, 136 Wis. 46, 116 N. W. 844; Tiffany & Co. v. 
 Drummond, 168 Fed. Repr. 47 (N. Y.), 1909; Bradley v. Jaeckel, 65 Misc. 509, 
 119 N. Y. Supp. 1071,1909; Dugan v. Lyon, 41 Pa, Super. 52, 1909; Rogers v. 
 Phillips, 206 Mass. 308, 92 Atl. 327. 
 
 Pedestrian injured at crossing. Duty of pedestrians to watch for automobiles 
 in crossing street. 2 N. C. C. A. 289-297 note. 
 
 o'Lynch v. Fiske Rubber Co., 209 Mass. 16. 95 N. E. 400, 2 N. C. C. A. 298. 
 
 looDaugherty v. Metropolitan Motor Car Co., 85 Wash. 105, i47 Pac. 655. 
 
 iBaker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. N. S. 487. 2 N. C. C. 
 A. 289. 
 
 834 
 
DUTY TO LOOK AND LISTEN § 1 296 
 
 § 1296. Walking while looking behind. — A pedestrian may be 
 found negligent on evidence that when he steps off the sidewalk into 
 the street he has his head turned over his shoulder looking behind him 
 although he claimed he looked in both directions while on the sidewalk 
 and saw nothing.^ 
 
 § 1297. No duty to look behind while walking in street.' — There 
 is no imperative rule of law requiring a pedestrian, when lawfully using 
 a public way to be continuously looking or listening for automobiles.* 
 
 A pedestrian walking in the street is not bound to look behind him 
 repeatedly and constantly to observe the approach of possible vehicles 
 from the rear where the drivers of such vehicles could plainly observe 
 him in time to give warning or turn out and avoid a collision.' 
 
 A woman driving a cow and calf along a country highway owes the 
 driver of an automobile coming up behind no duty to look or listen for 
 the approach of his vehicle.' 
 
 § 1298. When defendant had last clear chance to avoid accident.^ 
 — The plaintiff is negligent in stepping into the street looking straight 
 ahead, but he may recover if the defendant had an opportunity in the 
 exercise of due care to avoid him and did not do so.* 
 
 § 1299. Questions for jury.^ — ^Where the plaintiff is injured by an 
 automobile while attempting to cross a street the questions of his due 
 care in his crossing and of the defendant's negligence are almost in- 
 variably questions of fact for the jury.^" 
 
 § 1300. Relying on each other. — Where pedestrians are walking 
 together a remark by one after looking back may be relied on by the 
 others and it is not negligence thus to rely on each other." 
 
 ^Davis V. Bruener Co., 167 Cal. 683, 140 Pac. 586. 
 'Walking along street, see § 1304. 
 *Bouma v. Dubois, 169 Mich. 422, 135 N. W. 322. 
 'Blackwell v. Renwick, 21 Cal. App. 131, 131 Pac. 94. 
 'Dozier v. Woods, 187 Ala. 181, 67 So. 283. 
 'As to the last clear chance rule see § 1107, et seq. 
 8Benn v. Forrest, 213 Fed. 763, 130 C. C. A. 277, 3d Cir. 
 'See further, § 1592. 
 
 ^"Haggon y. Whipple Co., 214 Mass. 64, 100 N. E. 1087; Gnecco v. Pedersen, 
 i6s App. Div. 23s, IS4 N. Y. S. 12. 
 "Belleveau v. Lowe Supply Co., 200 Mass. 237, 86 N. E. 301- 
 
 83s 
 
§ I30I PEDESTRIANS 
 
 IV. Position of Pedestrian. 
 
 § 1301. Crossing street not at regular crossing. 
 
 1302. Traveller in dangerous position. Last clear chance. 
 
 1303. Stepping from footpath to roadway. 
 
 1304. Walking along street. 
 
 1305. Pedestrian on right hand side of road. 
 
 1306. Pedestrian in centre of street. 
 
 1307. Jumping in front of automobile. 
 
 1308. Running in front of automobile. 
 
 1309. Stepping back. 
 
 1310. Pedestrian dodging back and forth. 
 
 1311. Where pedestrian lying on street. 
 
 1312. On sidewalk crpssing passageway. 
 
 1313. Climbing or hanging on behind — "hitching on.'' 
 
 1314. Plaintiff leaning against team. 
 
 1315. Sitting on fence beside road. 
 
 1316. Plaintiff leaving vehicle. 
 
 § 1 30 1. Crossing street not at regular crossing. — Pedestrians 
 have a right to travel anywhere upon a highway and are not confined 
 in their right to especially prepared crosswalks.^^ 
 
 In Raymond v. LowelP' it is said : 
 
 "There is no law or principal of law, or of reason which con- 
 fies foot-passengers to particular crossing. Such a restriction 
 would be very inconvenient and annoying."" 
 
 The driver of an automobile is bound to use the same degree of care 
 towards pedestrians not at a crossing as towards those at a crossing 
 where the statute makes no distinction.^" 
 
 It is proper for the court to refuse to charge that an operator of an 
 automobile is not bound to exercise the same care where a pedestrian 
 
 i^Keith V. Worcester, etc., St. Ry., ip6 Mass. 478, 82 N. E. 680; Cora. v. Tem- 
 ple, 80 Mass. 69, 7S ; Thompson, Com. on Negligence sees. 1300 1301 ; Hannigan 
 V. Wright s Pennew. 537 (Del.), 63 Atl. 234; Gerhard v. Ford Motor Co., IS5 
 Mich. 618, 119 N. W. 904, 20 L. R. A. N. S. 232; Raymond v. Hill, 168 Cal. 
 473, 143 Pac. 743 ; Foster v. Curtis, 213 Mass. 79, gg N. E. 961, 42 L. R. A. N. S. 
 1 188, Ann. Cas. 1913, E. 11 16; Fox v. Great Atlantic, etc., Tea Co., 84 N. J. L. 
 726, 87 Atl. 339, 4 N. C. C. A. 6; Mcllhinney v. Philadelphia, 214 Pa. St. 44, 63 
 Atl. 368. See Harder v. Matthews, 67 Wash. 487, 121 Pac. 983. 
 
 i36o Mass. 530. 
 
 i«S'ee Mcllhinney v. Philadelphia, 214 Pa. St. 44, 63 Atl. 368. 
 
 i^Aronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641. 
 
 836 , ; 
 
POSITION OF § 1302 
 
 steps from the sidewalk between crossings as at the crossing as this 
 is a charge on the facts and on intrivation to the jury where the plain- 
 tiff stepped from the sidewalk a few feet from the crossing." 
 
 It may be important that the plaintiff, though not crossing at the 
 end of a block, was doing so where there was a row of flagstones 
 which the defendant knew was a customary crossing place for pedes- 
 trians.^' 
 
 Where the statute^^ provides that anyone crossing a street at any 
 place other than a crossing does so at his own risk but that the drivers 
 of vehicles are not thereby relieved from constant vigilance the result 
 is that pedestrians are barred as against owners not driving but that 
 they have a right of action against drivers whether owners or not.^° 
 
 § 1302. Traveller in dangerous position — last clear change.^" — 
 If a traveller has placed himself in a dangerous situation on the high- 
 way then whenever the person in control of such agency sees the 
 traveller and should appreciate his danger the last chance rule applies 
 without regard to the continuing negligence of the traveller concurring 
 up to the very instant of the injury.^^ 
 
 Where the defendant sees the plaintiff on the street in a position of 
 danger it becomes her duty to stop the automobile in the shortest time 
 and space possible.^^ 
 
 Where the plaintiff crossing the street is in a place of peril and the 
 defendant sees this in time to have avoided him if he had thereafter 
 used ordinary care he may be liable.^^ 
 
 One may negligently place himself in a dangerous situation yet if 
 injury is avoidable by another through the exercise of reasonable care, 
 the carelessness of the person affected does not excuse the infliction of 
 injury. A pedestrian may rely on the exercise of reasonable care on 
 the part of drivers of vehicles and a failure to anticipate the omission 
 of such care does not render him negligent.^* 
 
 I'McCown V. Muldrow, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914, A. 139. 
 I'Milkr V. Tiedemann, 249 Pa. St. 234, 94 Atl. 835. 
 I'N. J. St. 1915, p. 297, § 12, repealed by N. J. St. 1916, p. 49. 
 "Schreiver v. Grinnell, (N. J. 1916), 97 Atl. 781. 
 2° As to last clear chance, see further, §§ 1107, et seq. 
 21M0SS0 V. Stanton Co., 75 Wash. 220, 134 Pac. 941. 
 22Vesper v. Lavender, Tex. Civ. App., 149 S. W. 377. 
 ^sjohnson v. Scott, 119 Minn. 470, 138 N. W. 694. 
 
 ='*Deputy v. Kimmel, 73 W. Va. 593, 80 S. E. 919, Si L. R. A. N. S. 989, 8 N. 
 C. C. A. 369. 
 
 837 
 
§ 1303 PEDESTRIANS 
 
 § 1303. Stepping from foot path to roadway. — ^That the automo- 
 bile hit the plaintiff while he was in the act of stepping off the curb 
 into the street shows negligence in the driver.^^ 
 
 But where a boy leaves a foot pathway and is hit by an automobile 
 on the roadway, he cannot recover without proving that he entered the 
 roadway at a sufficient distance from the automobile to permit of its 
 being stopped before the accident happened.^® 
 
 § 1304. Walking along street.^' — A pedestrian is not as matter of 
 law guilty of negligence in walking on the street even when there is a 
 sidewalk customarily used,^' but he may be guilty of negligence when 
 he might have seen the automobile approaching at night and took no 
 precautions for his own safety.^' 
 
 It is not the duty of a pedestrian to get off a driveway thirty feet 
 or more in width upon seeing defendant's automobile turn into it when 
 he might have chosen a safe way by using the sidewalk. The plain- 
 tiff had a right upon the driveway and the defendant owed the plain- 
 tiff the duty to exercise toward him that degree of care imposed by 
 statute.'" 
 
 § 1305. Pedestrian on right hand side of road. — A verdict cannot 
 be ordered for the defendant where the plaintiff's evidence tends to 
 show that he was walking on the extreme righthand side of the road 
 and was struck from behind by the defendant although all the occu- 
 pants of the defendant's car testify that the plaintiff jumped against 
 it.'^ 
 
 The plaintiff may recover on evidence that she was hit by an auto- 
 mobile at night while walking along the extreme right side of a road 
 which she had just crossed where she did not go on the sidewalk be- 
 cause it was muddy.'^ 
 
 2BMay V. Allison, 30 Pa. Super. Ct. 50, ipoS- 
 26Stahl V. SoUenberger, 246 Pa. 525, 92 Atl. 720, 8 N. C. C. A. 376. 
 2'Duty to look in walking on street, see § 1281 et seq. 
 
 28Blackwell v. Renwick, 21 Cal. App. 131, 131 Pac. 94. See Simeone v. Lind- 
 say, 6 Pen. Del. 244, 65 Atl. 778. 
 
 2i>Willis V. Harby, 159 App. Div. 94, 144 N. Y. S. 154- 
 a^Hodges v. Chambers, 171 Mo. App. 563, IS4 S. W. 429, 5 N. C. C. A. 181. 
 sifiiogini v. Steynen, 124 Md. 369, 92 Atl. 806. 
 32Booth V. Meagher, 113 N. E. 367, 1916, Mass. 
 
 838 
 
POSITION OF § 1306 
 
 Where the pedestrian was hit just before he reached the curb by a 
 car that swung towards him and increased its speed the question of 
 defendant's negHgence is for the jury.^* 
 
 § 1306. Pedestrian in centre of street. — The failure of a pedes- 
 trian to look before starting to cross the street will not preclude re- 
 covery where he has reached the centre of the street when struck and 
 the defendant was bound by ordinance to keep near the right curb.^* 
 
 § 1307- Jumping in Front of automobile. — ^The defendant is not 
 liable where the plaintiff sees the defendant's taxicab coming and with 
 two other companions stops to let it pass when becoming nervous she 
 breaks away from her companions and attempts to pass in front of 
 the machine when it is close to her.*= 
 
 And a driver cannot be found negligent who approaches a woman 
 at a speed of six miles an hour and attempts to pass her as she Js 
 standing in the street waiting for a street car and looking towards him 
 when she suddenly steps in front of the automobile and is hit.^° 
 
 It is a question for the jury whether the plaintiff stepped in front 
 of an automobile or whether the automobile ran into him.^' 
 
 § 1308. Running in front of automobile. — Where there is no evi- 
 dence that an automobile is running at an unlawful or negligent rate 
 of speed it is proper to instruct the jury that if the plaintiff ran in front 
 of the automobile when it could not be arrested in its course with ordi- 
 nary care of the driver the defendant is not liable.^' 
 
 § 1309. Stepping back. — If one walking on or near the sidewalk 
 suddenly steps back in front of an on-coming truck when it is so near 
 him that the driver, using ordinary vigilance is unable to stop or 
 turn aside in time to avoid injuring him he cannot recover.^' 
 
 ssPitzgerald v. Russell, 155 App. Div. 854, 140 N. Y. S. 519- 
 
 =*Mosso V. E. H. Stanton Co., 75 Wash. 220, 148 Pac. 594; Aiken v. Metcalf 
 (Vt. 1916), 97 Atl. 669. See Benoit v. Miller, R. I. 1908, 67 Atl. 87, holding that 
 when a pedestrian has reached the centre of the street he has a right to sup- 
 pose that the automobile would avoid him by turning to the right. 
 
 ssBraud v. Taxa Cab Co., 129 La. 781, S6 So. 885. 
 
 ^sParkes v. Lindenmann, 161 Wis. loi, 151 N. W. 787- 
 
 '^Ouellette v. Superior Motor & Machine Works, 157 Wis. |3i, 147 N. W. 
 1014, 52 L. R. A. N. S. 299, 6 N. C. C. A. 357. 
 
 ssSullivan v. Smith, 123 Md'. 546, 91 Atl. 4S6, 8 N. C. C. A. 378. 
 
 39Tuttle V. Briscoe Mfg. Co., Mich. (1916), iS5 N. W. 724. 
 
 839 
 
§ 13 10 ' PBDBSTRIANS 
 
 It is a question for the jury where the driver hits a pedestrian who 
 claims the automobile was coming rapidly past another team although 
 the defendant claimed he was driving only five or six miles an hour 
 and the plaintiff stepped back against the rear wheel.*" 
 
 § 1310. Pedestrian dodging back and forth. — Conflicting evidence 
 as to whether the plaintiff, a pedestrian, was walking across the street 
 when struck or was dodging back and then ahead in front of the de- 
 fendant's automobile and as to the speed of the automobile leave a ques- 
 tion of fact for the jury.*^ 
 
 § 131 1. Where pedestrian lying on street, — In a, recent case the 
 defendant claimed unsuccessfully that he saw the plaintiff lying on 
 the street and struck her and stopped as soon as possible.*^ 
 
 § 1312. On sidewalk crossing passageway.*^ — A pedestrian on or 
 near the sidewalk walking diagonally away from a building through 
 which a covered passageway leads to the street is not as matter of law 
 bound to look back to see whether he was in danger of being run over 
 by a conveyance from behind coming out of the passageway.** 
 
 § 1313. Climbing or hanging on behind — "hitching on." — It is 
 not the duty of the driver of a moving vehicle to keep a lookout behind 
 so as to see whether children or adults are riding on the rear end of his 
 vehicle. Instead, his duty is to look ahead to avoid collision with per- 
 sons or with other vehicles. Nor does he owe, even to children, any 
 duty to prevent them from climbing upon his vehicle.*^ 
 
 § 1314. Plaintiff leaning against team. — ^Where a portion of the 
 street was blocked off the plaintiff on foot went into the street as she 
 saw others doing to walk around the obstruction. There was a dray 
 in the street at this point and as she reached the dray she saw an auto- 
 mobile approaching and stopped against the front wheel of the dray 
 leaving as she thought enough room for the automobile to pass. As 
 the automobile passed however the rear swerved towards her and she 
 was hit by the rear mudguard. The defendant did not know any ac- 
 
 "Schock V. Cooling, 175 Mich. 313, 141 N. W. 675. 
 ^iSmith V. Bruce, Minn., 154 N. W. 659. 
 *2Meier v. Wagner, 27 Cal. App. 579, 150 Pac. 797. 
 *3 Automobile backing out of garage, see § 1192. 
 **Tuttle V. Briscoe Mfg. Co., 1916 Mich., 155 N. W. 724. 
 *5Hebard v. Mabie, 98 111. App. 543; Baldie v. Tacoma St. Ry., 52 Wash. 75, 
 100 Pac. 162. 
 
 840 
 
BOARDING OR AUGHTING FROM STRUUT CAR § I315 
 
 cident had happened. This fact justified a finding that the defendant 
 was neghgent and the plaintiff was not.*" 
 
 § 1315. Sitting on fence beside road.— A plaintiff is not guilty of 
 contributory negligence where he remains seated on a fence at a turn in 
 the road six and a half feet from the roadway while he sees an auto- 
 mobile approach at a rapid rate.^' 
 
 § 1316. Plaintiff leaving vehicle. — Where a sleigh broke down and 
 the plaintiff left it and went into an adjoining yard to avoid an auto- 
 mobile approaching at high speed which turned out to avoid the sleigh 
 and ran over the plaintiff the questions involved are for the jury.*' 
 
 A complaint that states that the plaintiff had left a buggy and had 
 crossed the road and was standing at the side of the road when she 
 was hit is not demurrable as raising an inference of contributory negli- 
 gence.** 
 
 V. Pedsstkian Boarding or Aughting from Street Car. 
 
 § 1317. Duty to look on boarding street car. 
 
 1318. Duty to look on alighting from street car. 
 
 1319. Alighting and crossing diagonally to curb. 
 
 1320. Jumping from moving street car. 
 
 1321. Plaintiff looking and not seeing automobile on alighting. 
 
 1322. Duty on alighting from street car to avoid vehicle on wrong side of 
 
 street 
 
 1323. Crossing behind street car. 
 
 1324. Passenger turning back after leaving street car. 
 
 1325. When law forbids automobiles to pass close to standing street cars. 
 
 1326. When automobile swerves suddenly. 
 
 1327. Standing waiting for street car. 
 
 1328. When pedestrians move to avoid street car. 
 1328A. Duty to anticipate and avoid passengers. 
 1328B. Passing street cars on wrong side.^" 
 
 § 13 1 7. Duty to look on boarding street car. — If a pedestrian 
 looked for vehicles in passing from a sidewalk to a street car but if 
 after getting to the track he devoted his attention to the street car he 
 
 *»Gray v. Batchelder, 208 Mass. 441, 94 N. E. 702. 
 "Haring v. Connell, 244 Pa. St. 239, 90 Atl. 910. 
 *8Taylor v. Glens' Falls Automobile Co., 146 N. Y. S. 699. 
 *9Kinmore v. Cresse, S3 Ind. App. 693, 102 N. E. 403- 
 
 50 Automobile following car. Passengers injured. Person going to or from 
 street car struck by automobile. 2 N. C. C. A. 410-420 note. 
 
 841 
 
§ 13 18 PEDESTRIANS 
 
 cannot be held guilty of contributory negligence as matter of law.°^ 
 
 Although the plaintiff may have been negligent in not looking before 
 crossing, the street to get on an electric car this negligence is not the 
 proximate cause of the accident where the defendant in avoiding an- 
 other hit her as she was boarding the car.°^ 
 
 § 13 18. Duty to look on alighting from street car. — When alight- 
 ing from a street car a person is not bound as a matter of law to look 
 both ways,^^ and may rely upon it that drivers of other vehicles will 
 exercise reasonable care to avoid injuring him.°* 
 
 A person stepping off a street car may rely upon the exercise of 
 reasonable care by drivers of vehicles to avoid injury and the failure 
 to anticipate the omission of such care does not render him negligent.^^ 
 
 Where the defendant hits the plaintiff while in the act of alighting 
 the plaintiff is not negligent although if she had looked she would have 
 seen the defendant's automobile approaching. She has a right to assume 
 that the car itself in coming to a stop at a customary stopping place will 
 warn an approaching vehicle not to pass close to the car and may as- 
 sume that if a vehicle does pass the car it will give him a wide enough 
 berth for standing room on the ground and to clear himself from the 
 car.°* 
 
 But the pedestrian must look where he is going, and not walk blindly 
 into danger.^' 
 
 In Hennessey v. Taylor^' it is said : 
 
 "There is no imperative rule of law * * * generally requir- 
 ing a pedestrian when lawfully using the public ways, to be con- 
 
 "Grouch V. Heffner, 184 Mo. App. 365, 171 S. W. 23. 8 N. C. C. A. 580. 
 
 =2Adams V. Averill, 87 Vt. 230, 88 Atl. 738, 4 N. C. C. A. 9, 8 N. C. C. A. 583- 
 
 °^See §§ 1412, et seq, street railways for further consideration of this subject 
 Garside v. New York Transp. Co., 146 Fed. 588, C. C. 1906, sub nomine New 
 York Transp. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285. Person going to 
 or from street car struck by automobile, 2 N. C. C. A. 410-420 note. Injury to 
 persons boarding or alighting from street cars, 8 N. C. C. A. 580-587 note. 
 
 s*Caesar v. Fifth Avenue Stage Co., 45 N. Y. Misc. 331, 90 N. Y. S. 359- 
 
 6=Lewis V. Wood, 247 Pa. 545, 93 Atl. 605. 
 
 "Wennell v. Dowson, 88 Conn. 710, 92 Atl. 663, 8 N. C. C. A. 582. 
 
 "^McGourty V. DeMarco, 200 Mass. 57, 85 N. E. Repr. 891 ; Starr v. Schenck, 
 25 Mont. Co. Rep. 18 (Pa.), 1907; Moebus v. Herrman, 108 N. Y. 349, 15 
 N. E. 415; N. Y. Transp. Co. v. Garside, 157 Fed. Repr. 521, 1907; Brewster v. 
 Barker, 129 N. Y. App. Div. 724, 113 N. Y. S. 1Q26; Dugan v. Lyon, 41 Pa. Super. 
 52, 1909; Liebrecht v. Crandall, no Minn. 454, 126 N. W. Repr. 69. 
 
 S8189 Mass. 583. S8S. 76 N. E. 224, 3 L. N. S. 345. 
 
 842 
 
BOARDING OR ALIGHTING ]?ROM STREET CAR § I319 
 
 tinuously looking or listening to ascertain if auto cars are ap- 
 proaching, under the penalty that upon failure to do so, if he 
 is injured, his negligence must be conclusively presumed. * * * 
 This requirement has not been applied to travellers in their 
 daily and common use of our highways. * * * The usual rule 
 of ordinary care does not impose upon them the burden of being 
 constantly on the lookout to see if their path is free from dan- 
 gerous defects, or in a state of apprehension of personal injury 
 from other travellers." 
 
 § 1 3 19. Alighting and crossing diagonally to curb. — A pedestrian 
 is not negligent in leaving a street car and crossing diagonally to the 
 curb instead of at right angles though then ordinary care on his part 
 may call for additional vigilance."' 
 
 § 1320. Jumping from moving street car. — Where the defend- 
 ant testifies that the plaintiff alighted from a street car while in motion 
 and ran directly behind it he is entitled to an instruction that" he is not 
 bound to drive his car to prevent injuring persons who jump from the 
 street car while in motion.^" 
 
 § 1312. Plaintiff looking and not seeing automobile on alighting. 
 — Where the plaintiff, a pedestrian, who has alighted from a street car 
 says he looked and did not see the approaching automobile he may be 
 found to be in the exercise of due care. But even if he had seen it 
 unless it was so close that it could not have been stopped by the exer- 
 cise of due care he had a right to assume that it would not run over 
 him. He might not have seen it as there was evidence that the auto- 
 mobile came from the left side of the street car in front of another 
 street car and crossed to the right side of the street before hitting the 
 plaintiff." 
 
 A verdict for the plaintiff is sustained where the plaintiff claims he 
 stepped off a street car standing still after looking behind and seeing 
 no lights at night and that he was immediately struck by the defend- 
 ant coming from behind. °^ 
 
 § 1322. Duty pn alighting from street car to avoid vehicle on 
 wrong side of street. — One alighting from a street car is not negligent 
 
 ssLeach v. Asman, 130 Tenn. 517, 172 S. W. 303. 
 «»Brown v. Brashear, 22 Cal. App. 135. i33 Pac. 505, 8 N. C. C. A. 585. 
 eiMarsh v. Hoyden, 33 R. I. 519, 82 Atl. 393, 4° h. R. A. N. S. 582. 
 62Brown v. Brashear, 22 Cal. App. 135, 133 Pac. 505, 8 N. C. C. A. 585. 
 
 843 
 
§ 1323 PEDESTRIANS 
 
 in not looking towards an automobile coming down the street the 
 wrong way.°^ 
 
 So one alighting from a street car and walking rapidly across in 
 front of it is not necessarily careless in not looking to the left as she 
 is not bound to anticipate a vehicle coming up on the left side of the 
 street.®* 
 
 § 1323. Crossing behind street car. — ^Where a traveler gets off an 
 electric car and passes in its rear when he is hit by an automobile, the 
 questions involved are for the jury.'* 
 
 § 1324. Passenger turning back after leaving street car. — Re- 
 covery was had where a passenger in a street car got off and then went 
 back to get a basket he had left in the car and on turning again to the 
 sidewalk was struck."* 
 
 § 1325. When law forbids automobiles to pass close to standing 
 street cars. — A statute requiring automobiles in passing street cars 
 which have stopped to slow down and stop ten feet away if necessary 
 takes the burden of lookout from the street car passengers and no 
 longer requires them to look before passing to the sidewalk."' 
 
 When a person steps from a street car and sees an automobile ap- 
 proaching at a distance of from 100 to 2CX) feet, he has a right to pre- 
 sume that the driver of the machine would obey the command of the 
 statute and not pass the street car while it was standing still. He is 
 not negligent in not continuing to watch the automobile. He had to 
 watch for other dangers.'* 
 
 The plaintiff is not negligent in failing to look in both directions 
 when she alights from a street car and is within four feet of the car 
 when she is struck by an automobile when there is a statute prohibiting 
 automobiles from running within four feet of the street cars. She has 
 a right to presume that automobiles will obey the law."' 
 
 The driver of a truck is negligent in attempting to pass a standing 
 street car stopped to allow passengers to alight when another automo- 
 
 83Naylor v. Haviland, 88 Conn. 256, 91 Atl. 186, 8 N. C. C. A. 584. 
 
 e*Mickelson v. Fisher, 81 Wash. 423, 142 Pac. 1160. 
 
 BSKalb V. Redwood, 147 App. Div. y7, 131 N. Y. S. 789- 
 
 "sBaldwin v. Maggard, 162 Ky. 424, 172 S. W. 674- 
 
 8'Johnson v. Young, 127 Minn. 462, 148 N. W. 940, 8 N. C. C. A. 580. 
 
 esLewis v. Wood, 247 Pa. 545, 93 Atl. 605. 
 
 69MedIin v. Spazier, 23 Cal. 242, 137 Pac. 1078, 8 N. C. C. A. 581. 
 
 844 
 
, BOARDING OR ALIGHTING PROM STREET CAR § I326 
 
 bile is standing in the road so that he cannot pass without going within 
 four feet of the street car.'"' 
 
 § 1326. When automobile swerves suddenly. — A pedestrian run- 
 ning diagonally across the street to catch a street car can recover where 
 an automobile coming towards him turns suddenly across the street and 
 runs him down though each party could see the other coming for some 
 distance.''^ 
 
 But a driver whose view on approaching a street car is obstructed by 
 it should stop and not try to go round it, thus suddenly coming upon 
 one boarding the car.''^ 
 
 § 1327. Standing waiting for street car. — It is a question for the 
 jury whether a pedestrian standing waiting for a street car who did 
 not look for automobiles and did not hear a horn sounded was in the 
 exercise of due care.''^ 
 
 § 1328. When Pedestrians move to avoid street car. — The de- 
 fendant's driver was approaching a standing street car and as the car 
 started persons standing by it stepped towards the sidewalk to avoid 
 its end swinging out and to avoid them the driver turned towards the 
 sidewalk hitting the plaintiff. An instruction to find for the defend- 
 ant was properly refused as the jury might well find it negligent to at- 
 tempt to drive at all under those circumstances.''* 
 
 § 1328A. Duty to anticipate and avoid passengers. — One driving 
 an automobile behind an electric car is bound as it approaches a stop to 
 anticipate that passengers would alight from the forward as well as the 
 rear end and he is bound to keep a diligent watch for persons stepping 
 off and to sound his horn as a warning. This duty does not begin as the 
 plaintiff stepped off the car but when the car commenced to slow down 
 he should anticipate that passengers would step off and should have 
 commenced giving the alarm for their protection. The fact that the 
 automobile was running slowly does not require a finding for the de- 
 fendant who hit a passenger alighting when the automobile ran fifteen 
 
 T»Bannister v. Jevne Co., 28 Cal. App. 133; iSi Pac. 546. 
 
 TiO'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36. 
 
 ^^Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 124 Am. St. Rep. 402, 8 
 L. R. A. N. S. 1228. 
 
 "Ouellette v. Superior Motor & Machine Works, 157 Wis. 531, 147 N. W. 
 1014, 52 L. R. A. N. S. 299, 6 N. C. C. A. 357- 
 
 7*Prince v. Taylor, Tex. Civ. App.; 171 S. W. 826. 
 
 845 
 
§ I328B PEDESTRIANS 
 
 feet after the collision before stopping and the horn was not sounded. 
 The driver is bound under the statute to exercise the highest degree of 
 care for the safety of others/' 
 
 Negligent driving appeared where the driver ran over a little girl 
 just after she alighted from a street car where he might have avoided 
 the accident by turning up a side street.'* 
 
 § 1328B. Passing street cars on wrong side.'' — Where an auto- 
 mobile on overtaking a street car is bound by law to turn to the right 
 and does instead turn to the left a passenger who leaves the car by the 
 front platform and walks across in front of the car is not required to 
 anticipate an automobile coming from that direction, but he is au- 
 thorized to presume in the absence of notice to the contrary that de- 
 fendant was neither violating the statute nor remiss in his common law 
 duty." 
 
 VI. Pedbstrian Evidently Unaware of Automobile. 
 
 § 1329. In general. 
 
 1330. Pedestrian driving animals. 
 
 1331. Standing in road conversing. 
 
 1332. Pedestrian examining object in his hand. 
 1333- Pedestrian with lantern looking for lost object. 
 1334. Pedestrian holding umbrella. 
 
 1335- Pedestrian with shawl over her head. 
 
 § 1329. In general. — If a pedestrian is crossing a street in a way 
 that would indicate to a reasonably prudent man that he is unconscious 
 of the approach of an automobile and the driver sees him or should 
 see him and observe his state of mind his negligence in not avoiding 
 him is the proximate cause of the injury and the pedestrian's negli- 
 gence is a remote cause.'" 
 
 § 1330. Pedestrian driving animals. — One driving an automobile 
 can be found wantonly negligent in driving his machine from behind 
 the plaintiff hitting her when she is oblivious of his approach and is 
 engaged in belaboring a cow she was driving.'" 
 
 'BBorgner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182. 
 ^sWeiner v. Linton, 120 Md. 276, 87 Atl. 674, 4 N. C. C. A. 4. 
 ''As to law of the road, see further, ante § 364. 
 'sCool v. Peterson, 189 Mo. App. 717, 175 S. W. 244. 
 '»Chase v. Seattle Taxicab, etc., Co., 78 Wash. S37, I39 Pac. 499. 
 soDazier-Woods, 187 Ala, 181, 67 So. 283. 
 
 846 
 
APPEARING FROM BEHIND ANOTHER VEHICLE § I33I 
 
 § 1 33 1. Standing in road conversing.— A person standing in the 
 roadway conversing with a friend in a wagon is not, because of such 
 fact, guilty of negligence.*^ 
 
 § 1332- Pedestrian examining object in his hand.— The fact that 
 the plaintiff, a boy ten years old, in stepping upon a crossing was ex- 
 amining pictures in his hand is not in itself such negligence as will bar 
 recovery.'* 
 
 § 1333- Pedestrian with lantern looking for lost object. — Where 
 the plaintiff is on the street at night with a lantern attempting to find 
 a knife that he had lost the question of his contributory negligence is 
 for the jury.*^ 
 
 § 1334. Pedestrian holding umbrella. — The plaintiff is negligent 
 as a matter of law where he crosses the street on a rainy day with his 
 umbrella down over his head and does not see or hear an automobile 
 approaching sounding its horn and with the muffler cut-out.'* 
 
 The pedestrian may however recover even though he was holding 
 an open umbrella at the time of the accident.'^ 
 
 It may be important to know how the plaintiff was holding his um- 
 brella at the time of the accident.'" 
 
 § 1335. Pedestrian with shawl over her head. — ^The pedestrian 
 may recover while walking with a shawl over her head when she is hit 
 by the defendant driving on the wrong side of the road.'^ 
 
 VII. Pedestrian Appearing From Behind Another Vehicle. 
 
 § 1336. Pedestrian's view cut off by another vehicle. 
 
 1337. When two vehicles passing. 
 
 1338. Pedestrian appearing from behind street car. 
 
 1339. Pedestrian crossing in front of team. 
 
 1340. Pedestrian crossing behind team. 
 
 1341. Alighting from team. 
 
 s^Kathmeyer v. Mehl, N. J. Sup., 1909, 60 Atl. 40 (N. J.). 
 
 s^Deputy v. Kimmel, ^^ W. Va. 595 ; 80 S. E. 919, Si I/- R- A. N. S. 989. 
 
 8'McKiernan v. Lehmaier, 85 Conn, ill; 81 Atl. 969. 
 
 '*Miser v. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. N. S. 1 178, 2 N. 
 C. C. A. 309. 
 
 ssMinor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214. 
 
 ssBachelder v. Morgan, 179 Ala. 339, 60 So. 81S, Ann. Cas. 191SC., 888, s N. 
 C. C. A. 187, 7 N. C. C. A. S- 
 
 ''Williams v. Richards, 3 Car. L. K. (Eng.), 81. 
 
 847 
 
§ 1336 PEDESTRIANS 
 
 § 1336. Pedestrian's view cut off by another vehicle. — It is gen- 
 erally held that the pedestrian is not as matter of law negligent who 
 crosses the street where his view is cut off by another vehicle.** 
 
 The plaintiff is not negligent as a matter of law when she looks as 
 she leaves the sidewalk and again as she passes beyond a vehicle stand- 
 ing by the curb and starts across the street diagonally and is struck by 
 the defendant's automobile coming from behind.*^ 
 
 But a pedestrian is negligent who attempts to cross a busy street not 
 at a crossing and in a diagonal direction looking behind her hurrying 
 to catch a car and steps from behind an express wagon piled high with 
 bundles even although the automobile which hits her was going twenty- 
 five miles an hour.'" 
 
 Where the defendant's chauffeur is driving between seven and nine 
 miles an hour on the right hand side of the street and the plaintiff, a 
 child seven years old, steps out quickly from behind a team there is no 
 negligence if he then puts on both brakes and throws out his clutch as 
 quickly as possible.'^ 
 
 § 1337- When two vehicles passing. — When two vehicles are 
 passing, it is the duty of each driver to look out for pedestrians sud- 
 denly appearing from behind the other vehicle."^ 
 
 In Purtell v. Jordan"' it is said : 
 
 "It is urged * * * that it is always negligent for a pedes- 
 trian in the street of Boston to attempt to cross behind a high 
 loaded team until the team has passed so far as to enable him 
 to see that no other team is coming from behind it on the other 
 side. We cannot lay this down as a legal proposition. * * * 
 One passing behind a loaded team which obstructs his view has 
 no such reason to apprehend danger from a team driven in the 
 opposite direction when he hears nothing. * * * Of course 
 he should take precautions, and endeavor to ascertain whether 
 he is exposing himself to danger.""* 
 
 ssSchumacher v. Meinrath (III.), 177 111. App. 530, 8 N. ,C. C. A. 371. 
 
 89Ginter v. O'Donoghue, (Mo. App.), 179 S. W. 732. 
 
 '"Harder v. Matthews, 67 Wash. 487, 121 Pac. 983. 
 
 BiBarger v. Bissell, (1916), Mich.; 154 N. W. 107. 
 
 92Jones V. Shattuck, 175 Mass. 415, S6 N. E. 736; Gregory v. Slaughter, 124 
 Ky. 345, 99 S. W. 247; Winckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061, 
 citing text. 
 
 93 156 Mass. S77, 3i N. E. 652. 
 
 MSee also Hatinigan v. Wright, 5 Pen. (Del.), 537, 63 Atl. Repr. 236 (Del.). 
 
 848 
 
APPEARING FROM BEHIND ANOTHER VEHICI,E § I338 
 
 In Gregory v. Slaughter'^ an automobile was approaching a crossing, 
 but the driver was not able to see it because of a passing street car. 
 Instead of stopping the machine, the chauffeur merely changed its 
 course so as to go round the street car. In doing so he suddenly came 
 upon and ran down a person in the roadway who had been hidden be- 
 hind the car. The operator was held to be guilty of gross negligence.'" 
 
 § 1338. Pedestrian appearing from behind street car.'^ — Very 
 diiiGcult questions often arise when the pedestrian steps out from be- 
 hind a street car and is struck. Frequently the pedestrian is found 
 guilty of negligence. For example the burden is on the plaintiff to 
 show defendant's negligence where the plaintiff runs from behind a 
 street car and is hit by defendant's automobile.'* 
 
 There is no liability where a boy suddenly runs from behind a mov- 
 ing street car to the curb where there is no evidence that the automo- 
 bile was run at an excessive speed.'' 
 
 Furthermore the plaintiff is as matter of law negligent in crossing 
 on foot close behind a standing street car and emerging on the other 
 side of it without looking in any way for an automobile coming from 
 the direction of the car.^"' 
 
 Usually however these questions are reserved for the jury.^ 
 
 Thus the plaintiff is entitled to go to the jury on evidence that he 
 started from the sidewalk after looking in both directions, and crossed 
 behind a street car standing and was immediately struck by a taxicab 
 coming from behind the street car.^ 
 
 A pedestrian who on signal from a motorman crosses in front of a 
 street car which had stopped is not necessarily negligent when he is hit 
 by an automobile coming up the other side of the street car which he 
 
 "124 Ky. 345, 99 S. W. Repr. 247. 
 
 '^See also Peters v. Cuneo, 123 N. Y. App. Div. 74°, 108 N. Y. S. 264. 
 
 Baker v. Close, 121 N. Y. S. 1079, 137 N. Y. App. Div. 529, 1910. 
 
 "Pedestrian stepping in front of and behind street car, see §§ 1322, 1323. 
 
 ssWinter v. Van Blarcora, 258 Mo. 418, 167 S. W. 498. 
 
 99Winter v. Van Blarcom, 258 Mo. 418, 167 S. W. 498. 
 
 """Conrad v. Green, (N. J. 1915) ; 94 Atl. 390. 
 
 ^See for example Schneider v. Locomobile Co., 83 Misc. 3, 144 N. Y. Suppl. 
 311, 4 N. C. C. A. 8. 
 
 ^Phillips V. Taxi Service Co., (Cir. Ct. Dist. Mass.), 183 Fed. 869, af- 
 firmed (C. C. A. ist Ct.), 187 Fed. 734, 109 C. C. A. 482. 
 
 849 
 
 54 
 
§ 1339 PEDESTRIANS 
 
 could not see. There is no presumption of negligence from his failure 
 to look.^ 
 
 The plaintiff is in the exercise of due care when he is walking round 
 the front of a standing street car and as soon as he gets in a position to 
 see an approaching motorcycle he is struck by it. This is so even 
 though the plaintiif is not then looking in that direction. A traveller 
 in a public street is not necessarily negligent as a matter of law if he 
 does not look in a given direction at a certain instant.* 
 
 The plaintiff may recover on evidence that before he crossed the 
 street he looked and saw nothing but a trolley car when he was hit by 
 the defendant coming from behind the trolley car. If the defendant 
 was negligent in not looking more carefully the defendant had he 
 been looking would have discovered the plaintiff when he had reached 
 a place of danger and would have been able to avoid him." 
 
 The automobile driver is liable where he runs his machine at a speed 
 of ten to twelve miles an hour and hits a pedestrian who has just 
 crossed in front of an electric car with his umbrella up. The automo- 
 bile was being operated unnecessarily close to the street car which had 
 stopped and it was negligence to do so.® 
 
 § 1339. Pedestrian crossing in front of team. — ^Where the defend- 
 ant in passing a team going in the same direction at a speed of twenty 
 to twenty-five miles an hour hits the plaintiff who walks across the 
 street at a cross walk customarily used and in front of the team the 
 plaintiff may be found in the exercise of due care. The defendant's 
 seat was so low that he could not see over the horses as he passed the 
 team and would not see the plaintiff till he was upon him.' 
 
 § 1340. Pedestrian crossing behind team. — ^^Whcre a pedestrian 
 crosses a street behind a wagon standing and another in motion and 
 looks in both directions after passing the outermost team and then 
 proceeds to cross the street the question of her negligence is for the 
 jury where the defendant's machine was going fast without signaling.' 
 
 sMinor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214. 
 
 *Johnson v. Kansas City Home Telephone Co., 87 Kan. 441, 124 Pac. 528. 
 
 BGouin V. Ryder, (R. I. 1915) ; 94 Atl. 670. 
 
 oMinor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214. 
 
 'Miller v. Tiedemann, 249 Pa. St. 234, 94 Atl. 835. 
 
 sKurtz V. Tourison, 241 Penn. 425 ; 88 Atl. 656. 
 
 850 
 
I,ABORERS AND SPECTATORS § I34I 
 
 § 1341- Alighting from team. — One may be found not negligent 
 who gets ofiE the rear of a wagon as it passes a crossing and starts 
 across the street on the crossing without looking and is hit by an auto- 
 mobile driven at excessive speed when six feet beyond the team. He 
 was on the crossing where he had a right to be and he had a right to 
 assume that the defendant would not violate the city ordinance in re- 
 gard to speed.' 
 
 So it is not in itself negligence for one to alight from a wagon in the 
 centre of the street and walk to the sidewalk though not at a crossing.^" 
 
 But one riding on the tailboard of a wagon jumping off and running 
 across the street is barred by his own negligence.^^ 
 
 VIII. Laborers and Spectators. 
 
 § 1342. Persons engaged at work in the roadway. 
 
 1343. Automobile backing in circle. Hitting laborer. 
 
 1344. Police officer. 
 
 1344A. Spectators and crowds. 
 
 § 1342. Persons engaged at work in the roadway.^" — A workman 
 on the street will generally be held free of negligence in proceeding 
 with his work. It is the duty of the automobilist to see and avoid 
 him. 
 
 One who carelessly injures a laborer or other person whose vocation 
 calls upon him to be in the highway, is liable for the injury inflicted.^' 
 
 So a member of a sewer gang may be found careful in walking at 
 night in a stooping position rolling up a hose without lantern.^* 
 
 And a workman kneeling in a well lighted subway with a barrier 
 behind him is not as matter of law guilty of contributory negligence. ^° 
 
 *Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890. 
 
 lOBartley v. Marino, Tex. Civ. App. 1913; 158 S. W. 1156. 
 
 iiWills V. Powers, Mass. 1914; 102 N. E. 912, 4 N. C. C. A. 5. 
 
 i^See also § 1008, Actionable negligence, danger in the line of duty. 
 
 ^'Stewart v. Harvard College, 94 Mass. 67; Quirk v. Holt, 99 Mass. 164; 
 Anselment v. Daniel, 4 Misc. 144, 23 N. Y. Supp. 875; King v. Green, 7 Cal. 
 App. 473, 94 Pac. Repr. 777, 778 ; Suell v. Jones, 49 Wash. 582, 96 Pac. 4 ; Hiroux 
 v. Baum, 113 Wis. 197, 118 N. W. 533; Case v. Clark, 83 Conn. 183, 76 Atl. Repr. 
 S18. 
 
 See also Thompson, Com. on Negligence, 2d ed., sec. 1302; Markowitz v. 
 Lindeman, 161 App. Div. 679 150 N. Y. S. 34S (N. Y. Sup.) 
 
 ^*Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. 519. 
 
 "Papic V. Freutid, Mo. App. 1916; 181 S. W. 1161. 
 
 851 
 
§ 1343 pi;di;strians 
 
 The risk of a laborer from being run down while working in the 
 streets is beyond the common risk of the occupation.^* 
 
 § 1343. Automobile backing in circle hitting laborer. — A 
 street sweeper is not negligent in not seeing an automobile which backs 
 in a circle out of a garage into the street, although its horn is blown 
 when it starts. The natural inference from the blowing of the horn 
 was that the car was passing on that side, not that it was backing in a 
 circle towards the plaintiff. He is not bound to keep a constant watch 
 for passing automobiles.^^ 
 
 § 1344. Police officer. — A police officer was allowed to recover 
 when he signalled a taxicab at night to stop instead of which the driver 
 drove on and deliberately ran into him. The officer had a right to stop 
 the taxicab for overspeeding.^' 
 
 § 1344A. Spectators and crowds. — The law on this subject was 
 reviewed by Mr. Chief Justice Cullen in Johnson v. City of New 
 York.^^ In that case the plaintiff, a woman, had left her home in Brook- 
 lyn, and gone to the borough of Richmond to visit, as a spectator, 
 an automobile race on the highway. During the course of the race 
 the accident occurred whereby she was injured. The chief judge said : 
 
 "But granting that the action of the defendants in the use 
 of the highway was illegal, the question remains, was it illegal 
 against the plaintiff so as to render the parties participating 
 therein liable to her solely by reason of the illegality of their 
 acts and regardless of any element of negligence or other mis- 
 conduct. If the plaintiff had been a traveler onthe highway 
 when she met with injury a very different question would be 
 presented. * * * But the plaintiff was in no such situation. 
 She was not even a casual spectator whose attention was drawn 
 to the race while she was traveling in the vicinity. She went 
 from her home * * * expressly to witness it and to enjoy 
 the pleasure that the contest offered. As to the elements which 
 made the contest illegal she was aware of their existence. She 
 knew it was to take place on a highway, and she knew it was to 
 be a contest for speed, and that therefore, the automobiles would 
 be driven at the greatest speed of which they were capable. 
 * * * The plaintiff was not a casual spectator, whose atten- 
 tion might naturally be drawn to any remarkable occurrence 
 
 I'Lera v. Fairchild Gilmore Co., (Cal. Ind. Ace. Bd.), 5 N. C. C. A. 987. 
 i^Ostermeier v. Kingman Co., 255 Mo. 128, 164 S. W. 218. 
 isHeath v. Seattle Taxicab Co., 73 Wash. 177, 131 Pac. 843, s N. C. C. A. 189. 
 "186 N. Y. 139, 78 N. E. 715. 
 
 852 
 
LABORERS AND SPECTATORS § 1 344 A 
 
 on the highway and thereby loiter for some short period with- 
 out losing her rights as a traveler, but one who went to the place 
 expressly to see the exhibition."^" 
 
 The driver of an automobile is guilty of gross negligence in driving 
 his car through a dense crowd which had collected to view a previous 
 wreck at a speed of five or six miles an hour although he tooted his 
 horn and the crowd had apparently parted to let him through. The 
 crowd was made up of adults and children, the children predominating. 
 A little girl was standing at the edge of the crowd and was struck by 
 the mud guard over the front wheel.^^ 
 
 ^'The New York court, as supporting these views, cite the following cases : 
 Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642; Frost v. Josselyn, 180 Mass. 
 389,- 62 N. E. 469. 
 
 ^iHaake v. Davis, 166 Mo. App. 249, 148 S. W. 450. 
 
 853 
 
CHAPTER XLIII. 
 
 WOMEN AND CHILDREN. 
 
 § I34S- Care required of women and towards women. 
 
 1346. Degree of care towards children. 
 
 1347. Care of children that of children of that age. 
 
 1348. The age of discretion. 
 
 1349. Child running into danger. 
 
 1350. Running from behind another vehicle. 
 
 1351. Running without looking. 
 
 1352. Child looking and not seeing. 
 
 1353. Child playing in street. 
 1354- Crowd of children. 
 
 1355. Fright of children. 
 
 1356. Boy chased out of building. 
 1357- Last clear chance. 
 
 1358. Driving on wrong side of street. 
 
 1359. Coasting illegally. 
 
 1360. Negligence of parent permitting child on street. 
 
 1361. Excessive speed sufficient evidence of negligence. 
 
 1362. Minor a reckless driver. 
 
 1363. Gross negligence. 
 1364- Question for jury. 
 
 1365. Minor must appear by guardian. 
 
 § 1345. Care required of women and towards women.^ — Speak- 
 ing apart from the canons of courtesy, there seems to be no rule of law 
 that excuses a woman from exercising a less degree of care for her 
 safety than is required of a man; or permits her to demand from 
 others a higher degree of vigilance towards herself, than is required of 
 men in their relations towards one another.^ 
 
 That eminent jurist, Judge Cooley, in Hassenyer v. Michigan Cen- 
 tral R.,^ writing of care exercised by women, says : 
 
 "But while the authorities permit all the circumstances to 
 be taken into account, age and sex, among the rest, in determin- 
 
 iSee the following motor vehicle cases: Hennessey v. Taylor, 189 Mass. 583, 
 76 N. E. 224, 3 L. N. S. 345; Shaffer v. Coleman, 35 Pa. Super. Ct. 386 . 
 ^Thompson, Com. on Negligence, 2d ed., sec. 339. 
 348 Mich. 205, 209, 12 N. W. 155. 
 
 8S4 
 
WOMEN AND CH1I<DREN § I346 
 
 ing the degree of care to be reasonably required or looked for, 
 no case, so far as we know, has ever laid it down as a rule of 
 law, that less care is required of a woman than of a man. Sex 
 is certainly no excuse for negligence; Fox v. Glastonbury, 29 
 Conn. 204; and if we judge of ordinary care by the standard of 
 what is commonly looked for and expected, we should probably 
 agree that a woman would be likely to be more prudent, care- 
 ful and particular in many positions and in the performance of 
 many duties than a man would. She would, for example, be 
 more vigilant and indefatigable in her care of a helpless child; 
 she would be more cautious to avoid unknown dangers; she 
 would be more particular to keep within the limits of absolute 
 safety when the dangers which threatened were such as only 
 great strength and courage could venture to encounter." 
 
 And the same authority, speaking from the other standpoint, name- 
 ly, the degree of care in law, to be exercised towards women, says: 
 
 "Women may enter upon and follow any of the occupations 
 of life; they may be surgeons if they will, but they cannot as 
 such claim any privilege of exemption from the care and cau- 
 tion required of men. A woman may be engineer of a locomo- 
 tive if she can obtain the employment, but the law will expect 
 and require of her the same diligence to avoid mischief to 
 others which men must observe. The rule of prudent regard 
 for the rights of others knows nothing of sex. Neither can sex 
 excuse one for the want of ordinary care when exposing one's 
 self to known and obvious perils." 
 
 § 1346. Degree o£ care towards children. — "Greater care," says 
 Dr. Thompson, "must undoubtedly be exercised with reference to 
 children than to adults, to avoid injuring them; and this care must 
 be increased in proportion to the known or apparent immaturity, in- 
 discretion, and helplessness of the child."* 
 
 In the cases of children who are of an age to go about unattended, 
 to school and the like, the rule requires of them the exercise of such 
 discretion as such children have, certainly not so much as in the case 
 of an adult but "in other words the ordinary care of school chil- 
 dren."° On the other hand, the operator of a "car in a street where 
 there are children may well be required to manage his car with refer- 
 ence to all the risks that may reasonably be expected, and among 
 
 *Com. on Negligence, 2d ed., sec. 345. 
 *Lynch v. Smith, 104 Mass. 57. 
 
 855 
 
§ 1347 WOMEN AND chii<dri;n 
 
 these may be reckoned the risks arising from the heedlessness and in- 
 discretion of children in the street."' 
 
 The care required varies in respect to persons of different ages or 
 physical conditions. The operator of an automobile must increase 
 his exertions to avert danger to children. Their lack of capacity to 
 apprehend and guard against danger makes such caution necessary.'' 
 
 § 1347. Care of children that of children of that age. — Ordi- 
 nary care by children is that degree of care which children of the 
 same age are accustomed to exercise under like circumstances.* 
 
 § 1348. The age of discretion. — In general, if it is shown that the 
 child, at the time of the injury, was capable of caring for its safety, 
 that is to say, in this respect, sui juris, it is then incumbent upon such 
 child to "exercise vigilance for its protection, but only such as can 
 reasonably be expected of a child of its maturity and capacity. * * * 
 In view of this doctrine two questions generally arise: i. At what age 
 or period of a child's development shall it be held to be sui juris for 
 the purposes of cases of this kind; 2. Whether this is a question of 
 law or a question of fact."' 
 
 In regard to the former of the two propositions, no precise age can 
 be fixed upon. Much depends upon the child itself, its development, 
 environment, and education. In many states minors are declared by 
 statute sui juris for particular purposes at certain ages, and the stat- 
 utes in the different states vary as to age in these respects. To leave 
 the matter to the jury in all cases would, as Dr. Thompson says, "fur- 
 nish us with no rule whatever. It would give a mere shifting stand- 
 ard, affected by the sympathies or prejudices of the jury in each par- 
 
 «Collins V. So. Boston Ry. Co., 142 Mass. 312, 7 N. E. 856; Murley v. Roche, 
 130 Mass. 330; Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107. 
 
 ^Deputy V. Kimmell, 73 W. Va. S9S; 80 S. E. 919, Si L- R- A. N. S. 989; 
 8 N. C. C. A. 369. 
 
 ^Cecchi V. Lindsay, I Boyce 185, Del.; 75 Atl. 376; Travers v. Hartman, Del. 
 Super. Ct. 191S; 92 Atl. 855; Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 
 592; Gross V. Foster, 134 N. Y. App. Div. 243, 118 N. Y. Suppl. 889; Jacobs 
 V. H. J. Koehler Sporting Goods Co., 208 N. Y. 416, 102 N. E. Sift 8 N. C. C. 
 A. 370; Deputy v. Kimmell, 73 W. Va. 595; 80 S. E. 919, Si L- R- A. N. S. 
 989; 8 N. C. C. A. 369; Quinn v. Ross Motor Car Co., 157 Wis. 543. H7 
 N. W. 1000, 8 N. C. C. A. 370. 
 
 'Thompson, Com. on Negligence, 2d ed., sec. 306, 303; Shearman & Redf. on 
 Negligence, sth ed., sec. 73 ; Murphy v. Meacham, i Ga. App. 155, 57 S. E. 1046. 
 403, 94 N. Y. S. 798. 
 
 85a 
 
WOMEN AND CHILDREN § I349 
 
 ticular case." The true solution of the matter is that "this is not a 
 question of fact for the jury ; it is a question of law for the court."^" 
 
 "Children of very tender years are conclusively presumed to be in- 
 capable of exercising care and judgment to avert injuries from them- 
 selves, and as matter of law, contributory negligence is not imputable 
 to them."" 
 
 But in the matter of contributory negligence if there be any doubt 
 as to whether the child was of an age to be sui juris, "it should be 
 submitted to the jury to say by their verdict whether he is so or not."^^ 
 
 The courts have not very accurately defined the age of sufficient 
 discretion in children to go about alone, and the age of entire absence 
 of discretion. Within certain limits such as extreme infancy, there is 
 a presumption of its non-existence, but much beyond that all the facts 
 have been left to the jury.^' 
 
 A child between seven and fourteen years is not presumed to possess 
 discretion hence his negligence which proximately contributes to the 
 injury is not a defence.^* 
 
 A child six years old gazing in a shop window is not negligent 
 where he is struck from behind, the jury finding him too young to be 
 sui juris}^ 
 
 § 1349. Child running into danger. — It is clear that there can be 
 no recovery where the plaintiff, a child, runs heedlessly into the side 
 of the automobile^' or runs directly in front of it so close that the 
 
 WThompson, Com. on Negligence, 2d ed., sec. 307; Shearman & Redf. on 
 Negligence, Sth ed., sec. 730. 
 
 iiThompson, Com. on Negligence, 2d ed., sees. 303, 310; Oldfield v. N. Y. & 
 H. R., 3 E. D. Smith, 103, 106, affirmed 14 N. Y. 310. 
 
 i^Thompson, Com. on Negligence, 2d ed., sees. 313, 443; Thies v. Thomas, 
 77 N. Y. Supp. 276, 1902; Buscher v. N. Y. Transp. Co., 106 N. Y. App. Div. 
 
 493, 1905- 
 
 i^Collins V. So. Boston Ry. Co., 142 Mass. 313, 7 N. E. 856; Sullivan v. Boston 
 El. Ry., 192 Mass. 37, 42, 75 N. E. 382; Gibbons v. Williams, 138 Mass. 335; 
 Oldfield V. N. Y. & H. R., 3 E. D. Smith 103, 106, affirmed 14 N. Y. 310; 
 Quoted § 920, Actionable negligence, children. Thompson, Com. on Negligence, 
 2d ed., sec. 306. 
 
 "Cedar Creek Store Co. v. Steadham, 187 Ala. 622, 65 So. 984. 
 
 "J. p. Darmody Co. v. Reed, (Ind. 1916), iii N. E. 317. 
 
 i«Marius v. Motor Delivery Co., 146 App. Div. 608, 131 N. Y. S. 357- Paul 
 V. Clark, 146 N. Y. S. 1104, 161 N. Y. App. Div. 957, 8 N. C. C. A. 377- 
 
 857 
 
§ 1350 WOMEN AND CHILDREN 
 
 driver cannot avoid hitting him^' unless the car is running at high 
 speed on the wrong side of the street.^* 
 
 The defendant is not negligent when driving at a moderate pace 
 through the city and the plaintiflf, a boy eight years old runs from the 
 sidewalk suddenly and is hit.^° 
 
 A non-suit is properly ordered where the only evidence is that the 
 plaintiff, a child four years old did not leave the sidewalk until the 
 defendant's car was so close to him that no reasonable efforts on his 
 part would have avoided the accident where the automobile was 
 proceeding slowly and under perfect control.^" 
 
 § 1350. Running from behind another vehicle. — ^A child may 
 recover who runs out suddenly from in behind a wagon in the street^' 
 although if the autoist can show that he was moving slowly and stopped 
 at once the court may rule that he is not entitled to recover.^^ 
 
 A boy of eight years old is not necessarily negligent in getting off 
 from behind a lumber wagon as it started to turn to the left, and in 
 not anticipating an automobile moving rapidly on the wrong side of 
 the street.^^ 
 
 A girl seven years old is not necessarily negligent in starting across 
 a travelled thoroughfare at a "jig trot" although her view of the 
 defendant's automobile is obscured by a passing automobile when a 
 boy waves to the defendant to stop and the defendant gave no warn- 
 ing of his approach.^* 
 
 § 1 35 1. Running without looking. — It may not be negligence for 
 a child to run into the street without looking in either direction. Where 
 a little girl eight years old runs across the street suddenly looking 
 
 iTPaul V. Clark, 161 App. Div. 456, 145 N. Y. S. 985. 
 
 "Lynch V. Shearer, 83 Conn. 73; 75 Atl. 88. 
 
 "Curley v. Baldwin, R. I. 1914; 90 Atl. I, 8 N. C. C. A. 379. 
 
 soHyde v. Hubinger, 87 Conn. 704; 87 Atl. 790, 8 N. C. C. A. 372. 
 
 siAkers v. Fulkerson, 153 Ky. 228, 154 S. W. iioi, 4 N. C. C. A. 4, where 
 auto did not signal and was travelling fast — twenty to twenty-five miles an hour. 
 
 22Winter v. Van Blarcom, 258 Mo. 418, 167 S. W. 498; 8 N. C. C. A. 374. 
 where auto stops in fifteen feet. 
 
 28Winckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061. 
 
 2*Tripp V. Taft, 219 Mass. 81 ; 106 N. E. 578, 7 N. C. C. A. 488, 8 N. C. C. 
 A. 373. 
 
 858 
 
WOMEN AND CHIIvDREN § I352 
 
 behind her at some other girls chasing her she is not necessarily guilty 
 of contributory negligence." 
 
 A child playing in the street is not necessarily negligent who while 
 playing in the street starts across the street without looking or listening 
 to ascertain whether an automobile is approaching where the auto- 
 mobile gives no signal.^" 
 
 The driver of an automobile is not liable when he is driving at a 
 lawful rate of speed and a boy running on the sidewalk suddenly runs 
 across the street in front of the automobile diagonally and with his 
 back to it and without looking where it also appears that the defendant 
 yelled at the boy who thereupon doubled on his tracks and started 
 back directly in front of the automobile.^' 
 
 § 1352. Child looking and not seeing. — Where a girl seven years 
 old says she looked and did not see an automobile approaching and 
 there was nothing to prevent her from seeing it if she did look it is 
 more likely that she is mistaken.^* 
 
 § 1353- Child playing in street. — "Being or playing upon a street 
 is not of itself contributory negligence in a child of the age of six 
 years. If the child is sui juris, that is if he has sufficient discretion 
 in the jury's opinion to be in the street alone, then an error of judg- 
 ment based on such experience and discretion as a child of that age 
 would naturally possess, is not negligence on the child's part, particu- 
 larly if the error in judgment was the result of circumstances calcu- 
 lated to inspire fright or terror, such as the unexpected or sudden 
 appearance of an automobile."^* 
 
 2BRouth V. Weakley, Kan. 1916; 154 Pac. 218, following Ratcliffe v. Speith, 
 95 Kan. 823, 149 Pac. 740. 
 
 2«Ratcliffe v. Speith, 95 Kan. 823 ; 149 Pac. 740. 
 
 2'Havermale v. Houck, 122 Md. 82; 89 Atl. 314. 
 
 28Sullivan v. Smith, 123 Md. 546, gi Atl. 4S6, 8 N. C. C. A. 378. 
 
 29Thies V. Thomas, 77 N. Y. Supp. 276, 1902; Buscher v. N. Y. Transp. Co., 
 106 N. Y. App. Div. 493, 94 N. Y. S. 798; Turner v. Hall, 74 N,. J. L. 214, 64 
 Atl. Repr. 1060 (N. J.) ; Campbell v. St. Louis, etc., R., 175 Mo. 175, 99 S. W. 
 58; Gross V. Foster, 134 N. Y. App. Div. 243, 118 N. Y. S. 889; Lynch v. Shearer, 
 83 Conn. loi, 75 Atl. 88; Cecchi v. Lindsay, i Boyce (Del), 185, 75 Atl. Repr. 
 376 (Del.); Burvant v. Wolfe, 52 So. Repr. 1025, 126 La. 787; Zoltovski v. 
 Gzella, 159 Mich. 620, 124 N. W. 527 ; Verdon v. Crescent Automobile Co., 80 N. 
 J. L. 199. 76 Atl. Repr. 346- 
 
 859 
 
§ 1354 WOMEN AND CHILDREN 
 
 The mere fact that a child is playing in the street is not itself evi- 
 dence of negligence especially where the automobile gives no warn- 
 ing'" but where a child of intelligence playing runs directly in front of 
 an automobile moving slowly he cannot recover^^ and so when he runs 
 in front of the automobile and then attempts to turn back across its 
 path.»^ 
 
 A child playing on the street is bound to exercise some care to avoid 
 the dangers incidental thereto.^^ 
 
 "The congested sections of a large city sometimes aflford children 
 no playground but the public streets yet in law this condition does not 
 relieve them from exercising reasonable care for their own safety in 
 such dangerous surroundings."'* 
 
 § 1354. Crowd o£ children. — ^The fact that the automobile is 
 driven towards or near a group of children in the road at some speed 
 is always evidence of negligence. 
 
 On the question of wanton driving the court may admit evidence 
 that the automobile was run near a number of children at high 
 speed.'^ 
 
 It is for the jury to decide whether the driver of an automobile is 
 negligent in running along a road towards a group of children who 
 divide, some going to each side of the road when one child runs 
 back across the road in front of the automobile.'^ 
 
 When the defendant approaches a crowd of children engrossed in 
 play it is his duty to sound his horn or give some other suitable 
 signal of his approach. The defendant's failure to give a signal is 
 sure evidence of negligence.'' 
 
 Ample evidence of the negligence of an automobile operator is 
 found from the fact that the defendant ran without diminishing speed 
 
 soTurner v. Hall, 74 N. J. L,. 214, 64 Atl. 1060. 
 
 siZoltovski V. Gzella, 159 Mich. 620, 124 N. W. 527; Jordan v. Am. Sight 
 Seeing Coach Co., 129 N. Y. App. Div. 313, 113 N. Y. S. 786; Bohringer v. 
 Campbell, 137 N. Y. S. 241, 154 App. Div. 879 (N. Y. Sup.). 
 
 '^Verdon v. Crescent Automobile Co., 80 N. J. L. 199, 76 Atl. 346. 
 
 "Marius v. Motor Delivery Co., 146 App. Div. 608, 131 N. Y. S. 357 (Sup.). 
 
 s*Per De Courcy, J., in Shipelis v. Cody, 214 Mass. 452; loi N. E. 1071, 4 N. 
 C. C. A. S. 
 
 soCedar Creek Store. Co. v. Steadham, 187 Ala. 622, 65 So. 984. 
 
 soReaves v. Maybank, 1916 Ala. Sup., 69 So. 137. 
 
 a^Ratcliffe v. Speith, 95 Kan. 823 ; 149 Pac. 740. 
 
 860 
 
WOMBN AND CHILDREN § I355 
 
 at a rate estimated as high as 25 miles an hour along a boulevard 
 within a foot or two of a group of boys.'* 
 
 Where a group of boys was skipping across a public parkway the 
 plaintiff is not negligent in running to the end of the line and stopping 
 a foot beyond his companions. The boulevard was not a race track 
 but a place where travellers had a right to be. A child has a right 
 to expect that no automobile would be driven through their midst at a 
 high rate of speed.'' 
 
 There is ample evidence of the negligence of the defendant in 
 driving at an estimated speed of 15 to 20 miles an hour in close proxi- 
 mity to a schoolhouse in view of the actual presence of some children 
 near by when one of them waves to him to stop and in view of the 
 natural expectation that the paths of others would be converging to 
 that point near school time.*" 
 
 § 1355- Fright of children. — If an automobile comes upon a boy 
 under circumstances calculated to produce fright, and in his fright he 
 commits an error of judgment resulting in his injury, he is not guilty 
 of contributory negligence.*^ 
 
 § 1356. Boy chased out of building. — ^A bright boy four years 
 and ten months old is not necessarily negligent in running across a 
 street on being chased out of a shop.*^ 
 
 § 1357. Last clear chance. — Even though the child is negligent 
 the driver of an automobile may be liable if he could have avoided 
 the accident by proper care on his part.*' 
 
 § 1358. Driving on wrong side of street. — The fact that the 
 automobile is moving on the, wrong side of the street is an element 
 always to be considered as showing negligence in the driver and due 
 care on the part of the child.** 
 
 ''Clark V. Blair, 217 Mass. 179; 104 N. E. 43S, 8 N. C. C. A. 381. 
 
 s'Clark v. Blair, 217 Mass. 179; 104 N. E. 435, 8 N. C. C. A. 384. 
 
 *oTripp V. Taft, 219 Mass. 81 ; 106 N. E. S78, 7 N. C. C. A. 488, 8 N. C. C. A. 
 373- ' 
 
 ^^Thies V. Thomas, ^^ N. Y. Suppl. 276, 1902. 
 
 *2Ayers v. Ratsvesky, 213 Mass. 589; loi N. E. 78, 7 N. C. C. A. 125. 
 
 *'Burvant v. Wolfe, 126 La. 787, 52 So. 1025. 
 
 **Lynch V. Shearer, 83 Conn. loi ; 75 Atl. 88; Winckowski v. Dodge, 183 
 Mich. 303, 149 N. W. 1061. 
 
 861 
 
§ 1359 WOMSN AND CHIlvDHBN 
 
 § 1359. Coasting illegally. — If a boy is sliding illegally on the 
 highway he cannot recover if run into by an automobile. It is not 
 necessary to charge the jury also that if the illegal sliding caused or 
 partly caused the accident he cannot recover. However if the de- 
 fendant after he knew of the dangerous situation could have prevented 
 the accident by due care then his negligent conduct would have been 
 the sole cause of the accident.*^ 
 
 § 1360. Negligence of parent in permitting child in street. — 
 The rule of law is that streets and highways are made for the use of 
 all travelers, children as well as others (Lynch v. Smith 104 Mass. 56), 
 but in the cases of children the rule of due care on both parts, presents 
 an additional aspect, particularly where very young children are con- 
 cerned. It then becomes largely a question "of due care on the part 
 of the person having charge of the child in allowing it to be in the 
 place where the injury was received."*" 
 
 As to the doctrine imputing the negligence of the parent or custo- 
 dian of the child to the child itself, the states are divided. The prac- 
 titioner in this regard will of course, be bound by the usage in the 
 jurisdiction in which his case is brought.*^ 
 
 *50sgood V. Maxwell, N. H. 1916, 95 Atl. 954. But see § 1084. 
 
 *6Marsland v. Murray, 148 Mass. 93, 18 N. E. 680; Oldfield v. N. Y. & Harlem 
 R., 3 E. D. Smith, 103 affirmed 14 N. Y. 310; I Thompson, Com. on Negligence, 
 2d ed., sees. 289, 497, 3067. 
 
 *^See Imputed Negligence, § 1019, et seq. In respect of children that subject 
 should be read in connection with this. 
 
 See also the following cases: 
 
 General cases in the Massachusetts Supreme Court : Com. v. Temple, 80 Mass. 
 69, 75 ; Wright V. Maiden, etc. R., 86 Mass. 283 ; Mulligan v. Curtis, 100 Mass. 
 512; Lane v. Atlantic Works, in Mass. 136; Stock v. Wood, 136 Mass. 353; 
 Messenger v. Dennis, 137 Mass. 197; Mattey v. Whittier Mach. Co., 140 Mass. 
 337, 4 N. E. 575; Dealey v. Muller, 149 Mass. 432, 21 N. E. 762; Casey v. 
 Smith, 152 Mass. 294, 25 N. E. 734; Slattery v. O'Connell, 153 Mass. 94, 26 
 N. E. 430; McNeil v. Boston Ice Co., 173 Mass. 570; Walsh v. Loorem, 180 
 Mass. 18, 61 N. E. 222; O'Brien v. Hudner, 182 Mass. 381, 66 N. E. 788; Jaehnig 
 V. Ferguson, 197 Mass. 364, 1912. 
 
 The following cases relating to the same subject wherein motor vehicles were 
 involved: Thies v. Thomas, 77 N. Y. Supp. 276; Buscher v. N. Y. Transp. 
 Co., 106 N. Y. App. Div. 493, 1902; Turner v. Hall, 74 N. J. L. 214, 64 Atl. 
 1060; McCarragher v. Proal, 114 N. Y. App. Div. 470, lOO N. Y. S. 208; Dultz 
 V. Fishlowitz, 104 N. Y. Supp. 357, (App. Term). 
 
 862 
 
WOMEN AND CHII,DREN § I360 
 
 "The rule is that parents, guardians, or custodians of children are 
 bound to exercise such degree of care and prudence * * * as is 
 reasonable under the circumstances; and this, in general, is a degree 
 of care proportionate to the known dangers, or to the dangers that 
 might be known by the exercise of ordinary diligence. As this will 
 necessarily vary with different ages and situations, it will generally 
 be a question of fact for the jury. Much depends upon the character 
 of the place where the child is permitted to be — whether a busy or an 
 unfrequented street, or whether other circumstances of danger are 
 ordinarily present." The age of the custodian of a child is wholly 
 unfixed, and will, in general, depend upon the circumstances of the 
 individual case.*^ 
 
 "Small children have a right to light, air and exercise, and the 
 children of the poor cannot be constantly watched by their parents. 
 * * * f jie mere fact that a child of tender years has been injured 
 while at large and unattended on a public street or highway, does not 
 necessarily impute contributory negligence to its parents or guardians 
 as matter of law, but is at most only prima facie evidence of negligence 
 on their part, subject to explanation. The question whether they 
 have been negligent in allowing the child to be at large, is generally 
 a question for the jury in view of the circumstances attending the 
 particular case."*' 
 
 A parent is chargeable for the negligent or wrongful act of the 
 custodian under whose care the child was placed. The negligence of 
 such custodian is imputed to the parent as contributory negligence 
 in a suit for injury to the child wherein the parent is plaintiff.^" 
 
 In Massachusetts the rule is thus stated by Mr. Justice Allen, in 
 Marsland v. Murray.^^ 
 
 "And in the case of an injury to a young child like the 
 plaintiff, the question becomes chiefly one of due care on the 
 part of the person having charge of the child, in allowing it 
 to be in the place where the injury was received. * * * The 
 
 <8Thompson, Com. on Negligence, 2d ed., sees. 321, 322. 
 
 ^'Thompson, Com. on Negligence, 2d ed., sec. 324. 
 
 ""Italics by the author of this book. Thompson, Com. on Negligence, 2d ed., 
 sec. 333. 
 
 ^51148 Mass. 91, 93, 18 N. E. 680. See § 1018, Burden of proof — Mass, rule, and 
 § 1270 et seq. 
 
 863 
 
§ I361 WOMEN AND CHII,DREN 
 
 fact that a very young child is allowed to be upon a much used 
 highway in a city, unattended, is prima facie but not conclusive 
 evidence of negligence on the part of the person in charge."^^ 
 
 There is no negligence in the parents of a healthy girl seven years 
 old in allowing her to go unattended to school."^ 
 
 The mother of a boy four years and ten months old of average 
 brightness is not necessarily negligent in allowing him to play in a 
 narrow street where there is an automobile repair shop when she 
 watches him from time to time.°* 
 
 That a child 6 years old was in, or played in a street, is not per se 
 negligence in his parents, but the question is for the jury.'" 
 
 In Oldfield v. New York & H. R.,'" Mr. Justice Ingraham, says 
 of a child of six years of age, killed in a street of New York city : 
 
 "In regard to the defendants" (the railroad company), 
 "there can be no doubt that the decision of the jury, as to the 
 negligence of the driver, is conclusive upon that point. In re- 
 gard to the child, also, I think the same rule must be recog- 
 nized. There are cases where permitting a very young child 
 to be in the streets, without an attendant, is of itself evidence 
 of negligence sufficient to defeat an action of this kind, but 
 those cases are of children much younger than this one; and 
 although there may be negligence in permitting such a child 
 to be alone in the streets of a city unattended, still at her 
 age, I am not prepared to say that, as matter of law, such neg- 
 ligence is to be presumed. On the contrary, / think it is prop- 
 erly to be left to the jury to say whether, under the peculiar 
 circumstances of each case,^'' a child, permitted to go through 
 the streets at such an age was or was not possessed of sufficient 
 judgment and discretion to avoid ordinary accidents to which 
 she might be exposed in crossing the streets of the city."^' 
 
 § 1361. Excessive speed sufficient evidence of negligence. — 
 
 Evidence that an automobile was driven at a high rate through a city 
 street and ran over a child seven years of age and dragged her a dis- 
 
 "^See Thies v. Thomas, 77 N. Y. Supp. 276, 1902. 
 
 5sTripp V. Taft, 219 Mass. 81, 106 N. E. 578, 7 N. C. C. A. 488, 8 N. C. C. A. 
 373- 
 B^Ayers v. Ratchesky, 213 Mass. 589; loi N. E. 78; 7 N. C. C. A. 125. 
 soThies v. Thomas, 77 N. Y. Supp. 276, 1902. 
 ■ =63 E. D. Smith, 103, 106, affirmed 14 N. Y. 310. 
 "^Italics by the author of this book. 
 "'Iviability where automobile backs and runs over boy. See ante § 1190. 
 
 864 
 
WOMEN AND CHILDREN § I362 
 
 tance of eight or ten feet is some evidence of negligence in the operation 
 of the automobile.^' 
 
 § 1362. Minor a reckless driver. — Evidence that a boy of eleven 
 years of age ran over two ladies and that he testifies that he became 
 excited and had only a faint recollection of the accident and other 
 evidence of his carelfcss handling of the car at the time is sufficient 
 to prove that he was a reckless driver.^" 
 
 Very little evidence is sufficient to show that a boy eleven years of 
 age is reckless and incompetent.'^ ^ 
 
 § 1363. Gross negligence. — A finding that a driver after seeing a 
 child 13 years old in the street, failed to use ordinary care does not 
 establish gross negligence in him."^ 
 
 § 1364. Question for jury. — In accidents in which children are in- 
 volved the questions of negligence are almost invariably for the jury. 
 The driver it seems must show without question that he was free of 
 negligence and that the child ran into or directly in front of his ma- 
 chine if he would have a verdict directed in his f avor.'^ 
 
 When a minor lawfully walking on the highway is run over by a 
 vehicle the question of his due care as well as the negligence of the 
 defendant is usually one of fact for the jury."* 
 
 The plaintiff's due care is for the jury where the plaintiff, a boy 
 eight years old says that he crossed the street without looking where 
 another witness says that the plaintiff was standing in a safe place 
 when the automobile turned suddenly and ran him down.*^ 
 
 § 1365. Minor must appear by guardian. — A minor must appear 
 in actions by his guardian and the point that he appeared by attorney 
 only may be first raised even after verdict. °* 
 
 s'Lewis V. National Cash Register Co., 84 N. J. L. 598, 87 Atl. 345, 4 N. C. 
 C. A. 6; See Thies v. Thomas, 77 N. Y. Suppl. 276, 1902; Buscher v. N. Y. 
 Transp. Co., 106 N. Y. App. Div. 493, 1902. 
 
 6» Allen V. Bland, Tex. Civ. App. ; 168 S. W. 3S ; 8 N. C. C. A. 299. 
 
 61 Allen V. Bland, Tex. Civ. App.; 168 S. W. 35; 8 N. C. C. A. 299. 
 
 62Quinn v. Ross Motor Car Co., 157 Wis. 543, 147 N. W. 1000, 8 N. C. C. A. 
 370. 
 
 s^Buscher v. N. Y. Transp. Co., 106 N. Y. App. Div. 493, 1902. 
 
 6*Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592- 
 
 s'Shipelis v. Cody, 214 Mass. 4S2 ; loi N. E. 107 ; 4 N. C. C. A. 5. 
 
 '^Blouse v. Geesey, 35 Pa. Co. Ct. Rep. 181. 
 
 86s 
 
 55 
 
CHAPTER XLIV. 
 
 PERSON UNDER DISABILITIES. 
 
 § 1366. In general. 
 
 1367. Negligence by and towards infirm persons. 
 
 1368. Cripple driving. 
 
 1369. Driver dizzy. 
 
 1370. Deaf bicyclist. 
 
 1371. Deaf pedestrian. 
 
 1372. Deaf person riding horse. 
 
 1373. Blind pedestrian. 
 
 1374. Negligence by and towards intoxicated person. 
 
 1375. Duty towards intoxicated pedestrian. 
 
 1376. Intoxication not necessarily a bar to recovery. 
 
 § 1366. The standard of care required of both the driver and the 
 person laboring under disabihties is well established as being that 
 which the ordinarily prudent and cautious person would do to pro- 
 tect himself under the given conditions. As a general proposition it 
 is thus stated : "There is no higher or different standard for one who 
 is aged, feeble, blind, halt, deaf or otherwise impaired in capacity, 
 than for one in perfect physical condition." Greater caution on the 
 part of the afflicted person, and increased circumspection may be re- 
 quired in view of these adverse conditions, to attain that standard of 
 care which the law has established for everybody, but this in no wise 
 qualifies the general rule.'^ 
 
 While the general doctrine is as just stated, it is not to be accepted 
 by the motorist as entirely without qualification, for on the part of 
 the operator "at times a greater degree of care is demanded. Thus, 
 if A., a person under obvious disability such as old age, infancy, 
 
 iCom. V. Temple, 80 Mass. 69, 75 ; Nefif v. Wellesley, 148 Mass. 487, 20 N. E. 
 hi; Keith v. Worcester, etc., St. Ry., 196 Mass. 482, 82 N. E. 680; Fenneman 
 V. Holden 75 Md. i, 22 Atl. 1049; Apperson v. Lazro, 44 Ind. App. 186, 87 
 N. E. Repr. 97. 
 
 That this is the principle of the common law is apparent from the remarks 
 of Chief Justice Denman, in Boss v. Little, (5 Car. & Payne, 408), supra, sec. 
 1260. 
 
 866 
 
PERSON UNDER DISABILITIES § I367 
 
 lameness, drunkenness or the like, is crossing the road, the duty of 
 avoiding him is greater than if he were a person of ordinary capacity. 
 But if A. were suffering from defect not easily noticeable, such as 
 blindness or deafness, no more than average care is requisite. All 
 that is requisite is that care and caution should be exercised in pro- 
 portion to the apparent risk."^ 
 
 But it is only when the operator has had time to realize, or by 
 the exercise of a proper lookout could have had time to realize, that 
 a person whom he meets is in a somewhat helpless condition, or 
 in a position of disadvantage and therefore seemingly unable to avoid 
 the approaching vehicle, that such operator is required to exercise 
 increased exertion to avoid a collision.^ 
 
 If the driver assumes that the pedestrian will get out of his way 
 after the horn is blown, and the pedestrian does not increase his speed, 
 but keeps on, then it is the driver's duty to slacken the speed of the 
 machine, and to take no risks of the pedestrian increasing his speed.* 
 
 Hence an instruction that a driver "must see that the person who 
 cannot see or hear is apprised of his approach. He must give him 
 warning by letting him hear and making him hear" is too strong a 
 statement.^ 
 
 § 1367. Negligence by and towards infirm persons. — At this 
 point it is apt to quote the remarks of Dr. Thompson,' as they apply 
 not only to children, but to aged persons, and to those who are infirm, 
 blind, deaf, near-sighted or suffering in any way under disability, 
 physical or mental : 
 
 "There is no rule more just than that the public are bound 
 to exercise a higher degree of care towards persons of this 
 class than towards people in general Hence, conduct which 
 as towards the general public might be fully up to the standard 
 
 ^Mear's "Law of the Motor Car" (Eng. p. 5°) ; Benjamin v. Holyoke St. 
 Ry., 160 Mass. 3, S. 35 N. E. 9S ; Citizens St. Ry. Co. v, Hamer, 20 Ind. App. 
 426, 436, 62 N. E. 658 ; Schulte v. New Orleans St. Ry., 44 La. Ann. 509, 10 So. 
 Repr. 811 (La.). 
 
 ^Thies V. Thomas, 77 N. Y. Suppl. 276, 1902; Cincinnati, etc., R. v. Long, 
 112 Ind. 166 172, 13 N. E. 659. 
 
 Duty of operator towards pedestrian under a disability, see 51 L. R. A. N. 
 S. 1008. 
 
 ♦Diamond v. Cowles, 174 Fed. 571 (feeble-minded mute boy), 1909. 
 
 "State V. Wagner, R. I. (1913), 86 Atl. 147. 
 
 ^Cora. on Negligence, 2d ed., sec. 299. 
 
 867 
 
§ 1367 PERSON UNDER DISABILITIES 
 
 of 'due care/ plainly may exhibit 'gross negligence,' or an in- 
 clination to do a wilful injury, when considered with reference" 
 to the classes of persons now under consideration.'' 
 
 But as the law casts the duty of special care for the safety tjf such 
 persons upon those who have the full use of all their senses, it places 
 a corresponding obligation on the unfortunate one, to himself exer- 
 cise a high degree of care for his own security.' 
 
 The case of Hall v. West End St. Ry.,° illustrates the principles 
 under immediate consideration. The plaintiff Hall, was of advanced 
 age and though very deaf, had good eyesight. While crossing a city 
 street, about mid-day, at a street-crossing, he was struck by a street 
 car. His testimony showed that before crossing, he looked straight 
 ahead across the street, but neither up nor down for approaching 
 vehicles. Mr. Justice Knowlton, speaking for the court says: 
 
 "There is no absolute rule of law that, to be in the exercise 
 of due care, one about to cross a public street must look and 
 listen for approaching vehicles. Robbins v. Springfield Street 
 Railway, 165 Mass. 30. He must do for his safety what ordi- 
 narily careful persons are a,ccustomed to do under like circum- 
 stances. * * * We are of opinion that all the evidence fails 
 to show that the plaintiff was in the exercise of due care. His 
 want of hearing made it incumbent upon him to be more alert 
 in the use of his other senses. For him to cross in such a place, 
 where he could not fail to know that passing vehicles were con- 
 stantly to be expected, in such a state of inattention that he 
 knew nothing of the approach of the car until after he was 
 struck, shows a want of ordinary care. It is not necessary to 
 decide that there was or was not evidence of negligence on the 
 part of the defendant. If there was any, it was very slight. 
 The motorman, while going at the rate of three or four miles 
 an hour, had no reason to expect that a man crossing on the 
 walk would step immediately before the car where it would run 
 over him. As he saw the plaintiff approaching he would nat- 
 urally expect that he would either hurry across before the car, 
 or stop before stepping on the track and let the car pass by."^" 
 
 ^See McCrohan v. Davidson, 187 Mass. 466, 73 N. E. 553 ; Shearman & Redf. 
 on Negligence, 5th ed., sec. 88. 
 
 "Thompson, Com. on Negligence, 2d ed., sec. 336. 
 
 »i68 Mass. 461, 47 N. E. 124. 
 
 loThe following are general cases decided in the Supreme Court of Massa- 
 chusetts : 
 
 Blind and Deaf— Wrinn v. City of Lowell, 83 Mass. 177; Smith v. Wildes, 
 
 868 
 
PERSON UNDER DISABIMTIES § 1 368 
 
 § 1368. Cripple driving. — Where the defendant's driver was a 
 cripple using a crutch and having but one foot, an expert witness 
 cannot testify that the defendant's car could be braked just as well 
 with the hands as with the feet as this is a question for the jury.^^ 
 
 § 1369. Driver dizzy. — The jury may find a driver negligent for 
 driving off the road although his defence is that he was overcome by 
 dizziness. ^^ 
 
 § 1370. Deaf bicyclist. — If a bicycle rider is deaf it is his duty to 
 be careful to keep himself informed as to what is approaching from 
 behind.^^ 
 
 § 1371. Deaf pedestrian. — Even a deaf person has a right to walk 
 on the street at night in preference to the sidewalk.^* 
 
 A pedestrian is not as matter of law negligent in looking down the 
 street before leaving the curb and not again until hit by the defendant's 
 automobile while crossing the street although she was slightly deaf.^' 
 
 Where the plaintiff, alighting from a street car, is deaf the fact that 
 others warn him by shouting to him does not prove him guilty of 
 negligence.^* 
 
 § 1372. Deaf person riding horse. — It is not the duty of one 
 who is "hard of hearing" to be constantly looking back while riding on 
 a horse. He has an equal right to the use of the road as an approach- 
 ing automobile. ^^ 
 
 143 Mass. 556, 10 N. E. 446; Neff v. Wellesley, 148 Mass. 487, 20 N. E. m; 
 Keith V. Worcester, etc., St. Ry., 196 Mass. 478, 82 N. E. 680. 
 
 Old Age and Infirm — Com. v. Temple, 80 Mass. 69, 75 ; Driscoll v. West End 
 Ry., IS9 Mass. 146, 34 N. E. 171 ; McCrohan v. Davidson, 187 Mass. 466, 73 
 N. E. SS3; Adams v. Boston & N. Ry., 191 Mass. 486, 78 N. E. 117. 
 
 See the following motor vehicle cases: Corey v. Havener, 182 Mass. 250, 65 
 N. E. 69 ; Wilkins v. N. Y. Transp. Co., lOi N. Y. Supp. 50, 1906. 
 
 iiBlalack v. Blacksher, 11 Ala. App. S4S, 66 So. 863. 
 
 i^Meyers v. Tri-State Automobile Co., 121 Minn. 68, 140 N. W. 184, 44 1,. R. A. 
 N. S. 113, 4 N. C. C. A. 30, 6 N. C. C. A. 369. 
 
 J^Weaver v. Carter, 28 Cal. App. 241 ; 152 Pac. 323. 
 
 As to bicyclists, see further ante, §§ 351, 1182, et seq. 
 
 '-^Booth v. Wagner, Mass. 1916. 
 
 i^Birch V. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L,. R. A. N. S. S9- 
 
 i^Lewis V. Wood, 247 Pa. S4S ; 93 Atl. 605. 
 
 i^Purtado v. Bird, Cal. App. 1915; 146 Pac. 58. 
 
 869 
 
§ 1373 PERSON undSr disabilities 
 
 § 1373. Blind pedestrian. — The fact that the plaintiff was almost 
 blind and was travelling on the highway unattended does not consti- 
 tute negligence/' 
 
 "A blind person has the same rights on the pubUc street as any other 
 person, and it is not ordinarily negligence for a blind person to go on 
 the streets unattended if he use ordinary care but the fact that he 
 was blind will not excuse him from his obligation to use due care." 
 In this case the plaintiff, a blind person knew the location thoroughly 
 and, before starting across the street, listened carefully and heard 
 nothing and was found in the exercise of due care.^^ 
 
 Where defendant approaches a blind man on the street and sees tliat 
 the blind man is disconcerted and can by the use of ordinary care 
 discover that the plaintiff is blind then it is the defendant's duty to 
 stop his machine.^" 
 
 A woman with defective eyesight but whose hearing is good may 
 be found careful in making use of such faculties as she possessed and 
 acting upon a reasonable belief that the road was clear, stepping in the 
 path of an automobile which gives no signal.^^ 
 
 § 1374. Negligence by and towards intoxicated person. — ^From 
 the single standpoint of simple negligence an intoxicated person is 
 one laboring under a voluntary disability. "Inability to exercise ordi- 
 nary care produced by intoxication stands upon a somewhat different 
 footing from inability growing out of infancy or insanity, since this 
 condition is not the misfortune, but is the fault of the party, produced 
 by his own misconduct. Nevertheless, the law does not justify a neglect 
 to use ordinary or reasonable care in preventing injury to a man 
 merely because he is drunk; though in determining whether or not 
 such care has been neglected, the fact of his drunkenness is generally 
 a circumstance to be considered by the jury ; but unless it is of such a 
 character as to render the party imbecile, the intoxication is neither 
 conclusive as to the fact of negligence, nor does it change the burden 
 of proof as to that fact."^^ 
 
 Whether the intoxication of the person killed or injured was such 
 
 isApperson v. Lazro, 44 Ind. App. 186, 87 N. E. 97. 
 isMcL,aughlin v. Griffin, 155 Iowa 302, 135 N. W. 1107. 
 ^"McLaughlin v. Griffin, 155 Iowa 302, 135 N. W. 1107. 
 2iHamel V. Peabody (N. H. 1916), 97 Atl. 220. 
 22Thompson, Com. on Negligence, 2d ed., sees. 37, 340, 408. 
 
 870 
 
PERSON UNDER DISABILITIES § 1375 
 
 as to prevent him from exercising proper care for his safety, will, in 
 doubtful cases, be a question of fact for the jury."" 
 
 In cases where the voluntary intoxication of the injured party is 
 material, "the defendant is entitled to have the jury instructed that 
 if the plaintiff was intoxicated, and if his intoxication placed him m 
 such a condition that he was unable to, and in fact failed, to exercise 
 the care and caution required of him, * * * he cannot recover."^* 
 
 The presumption will be against the intoxicated person.^' 
 
 Voluntary intoxication of the plaintiff, who was a pedestrian, may 
 be considered by the jury in determining whether he was at the time 
 of the accident in the exercise of due care.^" 
 
 In respect of the burden of proving intoxication, as material to the 
 establishment of contributory negligence, Mr. Justice Deady says, in 
 Holmes v. Oregon etc. R. :" 
 
 "Contributory negligence is a defence to this action. * * * 
 But the burden of proof is upon the defendant to establish it. 
 I admit that the authorities are in a hopeless conflict upon this 
 question, but in my judgment any other rule than this vio- 
 lates all the analogies of the law, and is practically illogical and 
 unjust."^* 
 
 The fact that the operator of an automobile is intoxicated is not in 
 and of itself such negligence as to authorize recovery although the 
 statute forbids the operation of an automobile while under the influence 
 of liquor. One driving properly is not liable though intoxicated.^' 
 
 § 1375. Duty towards intoxicated pedestrian. — If a pedestrian 
 is intoxicated the operator of an automobile is bound to consider his 
 lack of capacity when this was known or should have been known, 
 but if the drunken person falls against the automobile the case is 
 one of pure accident or of contributory negligence.^" 
 
 23Thompson, Com. on Negligence, 2d ed., sec. 452; McFern v. Gardner, 121 
 Mo. App. 1, 97 S. W. 972. 
 
 2*Thonipson, Com. on Negligence, 2d ed., sec. 494. 
 
 25Loftus V. North Adams, 160 Mass. 161, 35 N. E. 674. See cases in 40 L. 
 R. A. 143, VI ; Cassedy v. Stockbridge, 21 Vt. 394 and 398. 
 
 26Brown v. Wilmington, Del. Super. Ct. 1914; go Atl. 44. 
 
 "S Fed. Repr. 523, S38. 
 
 28See McPem v. Gardner, 121 Mo. App. i, g? S. W. 972. 
 
 2»Sheppard v. Johnson, 11 Ga. App. 280, 75 S. E. 348. 
 
 soBrown v. Wilmington, Del. Super. Ct. 1914; 90 Atl. 44. 
 
 871 
 
§ 1376 PERSON UNDER DISABILITIES 
 
 § 1376. Intoxication not necessarily a bar to recovery. — The 
 
 fact that the plaintiff was intoxicated at the time of the accident while 
 he was riding a motorcycle in violation of statute as to intoxication 
 does not bar recovery unless such violation of the statute was a proxi- 
 mate cause of his injuries.^^ 
 
 3iAllen V. Pearson, Conn. (1915), 94 Atl. 277, 9 N. C. C. A. 915. Intoxica- 
 tion of driver of motor vehicle as precluding recovery for personal injuries, 
 note. 9 N. C. C. A. 915-916. 
 
 872 
 
CHAPTER XLV. 
 
 AT RAILROAD CROSSINGS. ' 
 I. In Generai. 
 
 § 1377. Care at railroad crossings. 
 1378. Equal rights. 
 1379- Presumption of negligence against railroad company. 
 
 § 1377. Care at railroad crossings. — ^Among the anxieties which 
 beset the motorist, not the least is that of the railroad crossing, often 
 obscure and frequently affording only an obstructed view up and down 
 the track. To know his duty and the obligations required of him by 
 the law is a matter of much consequence. 
 
 In Grand Trunk Ry. v. Ives,^ the Supreme Court of the United 
 States, through Mr. Justice Lamar, use the following language con- 
 cerning the instructions of the judge in the court below, in his charge 
 to the jury : 
 
 "These instructions are so full and complete, and are in such 
 entire accord with the rules of law applicable to cases of this 
 character, that no fault whatever can be found with them." 
 
 The instructions referred to, are embodied in the opinion, and are as 
 follows : 
 
 "So if you find that he was familiar with the crossing and its 
 dangers, one and all of them; that he frequently used it and 
 knew how to act in using it to protect himself ; and that, under 
 the special circumstances which you And, he failed to act as a 
 prudent and cautious man should have acted from the beginning 
 to the end ; or that he omitted some precaution that a prudent 
 man ought to have taken, whereby he lost his life, the plaintiff 
 cannot recover. He should use all his faculties of seeing and 
 hearing; he should approach cautiously and carefully; should 
 look and listen and do everything that a reasonably prudent man 
 
 ^Crossings. — Liability for personal injuries in accidents at crossing. 4 N. C. 
 C. A. 718-730 note. 
 2144 U. S. 408, 431. This case is frequently cited in the books. 
 
 873 
 
§ 1378 AT RAII^ROAD CROSSINGS 
 
 would do before he attempted to make the crossing. Scrutinize 
 his actings and doings under the Ught of the situation; the 
 nature and character of the crossing; the fact of the difficulty 
 of observation; the time of day and the probabiUty of danger 
 from passing trains; the fact that there were other railroads 
 side by side ; that another train on one of these was actually ap- 
 proaching and passing; the noise and confusion; possibly the 
 noise and confusion of signals ; and every fact and circumstance 
 bearing on the case to influence his conduct then and there, under 
 those circumstances and not any other circumstances; and say 
 upon your fair and impartial judgment whether he acted as a 
 reasonable and prudent man should have acted and with the due 
 care and caution demanded by the exigencies of the occasion. 
 If he did so act, and the railroad company was negligent, his 
 administrator is entitled to your verdict. If he did not so act, 
 the railroad company is entitled to your verdict, whether it was 
 negligent or not."* 
 
 Due care at a grade railroad crossing imposes the duty on the traveler 
 to look and listen, and to have in ready control the ordinary implements 
 of driving.* 
 
 § 1378. Equal rights. — ^The traveler on a highway has an equal 
 right with a railroad company to use a railroad crossing." 
 
 § 1379. Presumption of negligence against railroad company.^ 
 Where a railroad train runs into an automobile a presumption of negli- 
 gence arises against the railroad company which may be met by showing 
 either that the plaintiff was at fault or could have avoided the conse- 
 quences of the defendant's negligence or that the injury was due to an 
 unavoidable accident. The railroad company is not bound to prove any 
 particular one of them and therefore the court erred in placing the 
 
 »See also Continental Imp. Co. v. Stead, 95 U. S. 161, 164, 165. The whole 
 subject is thoroughly considered and the authorities elaborately reviewed in 
 the much cited case of Huntress v. Railroad; 66 N. H. 185, 34 Atl. iS4- 
 
 *See Appendix A, for statutes on the subject. 
 
 Shaw V. Boston & W. R., 74 Mass. 67; Mayo v. Boston & M. R., 104 Mass. 
 140; Walsh V. Boston & M. R., 171 Mass. 52, 50 N. E. 453; Hamblin v. N. 
 Y., N. H. & H. R., 195 Mass. 558, 81 N. E. 258; Huntress v. Railroad, 60 N. H. 
 185 ; Record v. Pennsylvania R. Co., 75 N. J. L. 447, 67 Atl. 1040, New York 
 Central etc. R. v. Maidment, 168 Fed. Repr. 21, 1902; Sanders v. Pennsylvania 
 R., 22s Pa. St. iqs, 73 Atl. loio; Louisville & N. R. v. Eckraan, 127 Ky. 331, 
 125 S. W. Repr. 729. 
 
 eWalters v. Chicago, M. & P. S. R. Co., 47 Mont. 501, 133 Pac. 357 ; 46 L. R- 
 A. (N. S.) 702. 
 
 874 
 
MANAGEMENT OE GRADE CROSSINGS § 1380 
 
 burden on the defendant of showing that the plaintiff was guilty of 
 negligence." 
 
 II. Management of Grade Crossings. 
 
 § 1380. Absence of guards. 
 
 1381. Leaving view obstructed at crossing. 
 
 1382. Cars standing near crossing. 
 
 1383. Grade crossing in country. 
 
 1384. Lowering gates. 
 
 1385. Acts of Flagman. 
 
 1386. Failure of crossing bell to ring. 
 
 1387. Wheel of automobile catching in planking. 
 
 § 1380. Absence of Guards. — A railroad company may be held 
 negligent in running trains at a speed of thirty-five miles an hour over 
 a crossing where there was much passing without any guards to warn 
 the public of the proximity of trains where the view was somewhat 
 obstructed.^ 
 
 § 1381. Leaving view unobstructed at crossing. — It is negligence 
 for a railroad company to allow needless obstructions to the view at 
 railroad crossings,* and it is for the jury to decide whether a railroad 
 company was negligent in permitting a crossing to be unnecessarily 
 obstructed and whether this was the proximate cause of the accident.' 
 
 While the erection and maintenance of buildings and other obstruc- 
 tions on or near to a railroad company's track may not constitute an in- 
 dependent ground of negligence yet their presence is admissible in evi- 
 dence as a circumstance which may shed light upon whether or not 
 the plaintiff exercised due care and was free from contributory negli- 
 gence and as to whether or not under the circumstances the defendant 
 exercised due care in the manner in which it operated its trains in 
 the vicinity of such buildings or other obstructions.^" 
 
 ^Central of Georgia Ry. Co. v. McKey, 13 Ga. App. 377, 79 S. E. 378. 
 'Tousley v. Pacific Electric Ry. Co., 166 Cal. 457, 137 Pac. 31 ; 8 N. C. C. A. 
 
 1033- 
 
 sCorley v. Atchison T. & S. F. Ry. Co., 90 Kan. 70, 133 Pac. 555, 4 N. C. C. A. 
 22, 381, 6 N. C. C. A. 306. 
 
 'Corley v. Atchison T. & S. F. Ry. Co., 95 Kan. 70, 147 Pac. 842 Ann. Cas. 
 1915 A. 764. 
 
 "Texas & P. Ry. Co. v. Eddleman, Tex. Civ. App. 175 S. W. 775. 
 
 875 
 
§ 1382 AT RAILROAD CROSSINGS 
 
 The questions of negligence were left to the jury where the plaintiff 
 at night stopped on approaching a railroad crossing and looked but his 
 view was obstructed by weeds on the side of the track which he did not 
 know were there.^^ 
 
 It was alleged that a railroad crossing was carelessly constructed in 
 that trees, bushes and shrubbery were permitted to stand upon the 
 tracks and obstruct the view of approaching trains but no evidence was 
 given in support of this in a North Carolina case.^^ 
 
 § 1382. Cars standing near crossing. — ^A railroad company may be 
 found negligent in leaving cars standing near a crossing while it runs a 
 train at thirty miles an hour and the standing cars obstruct the driver's 
 view, and the driver of an automobile may be found free of contribu- 
 tory negligence.^^ 
 
 A statute forbidding railroad companies from allowing cars to stand 
 across the street at crossings more than ten minutes cannot be invoked 
 by one injured through cutting off of view by such a car. The statute's 
 purpose was to prevent obstacles to travel not to sight. The violation 
 of the statute might be competent evidence where negligence was 
 claimed but where the question was presented of obstruction of the view 
 in violation of statute as constituting negligence in and of itself this 
 statute is not enough.^* 
 
 § 1383. Grade crossing in country. — A railroad cannot be found 
 negligent in maintaining a grade crossing in a country district in a 
 level country as required by law and in running a train over it at a 
 speed of not more than twenty-five miles per hour.^' 
 
 § 1384. Lowering gates. — Leaving crossing gates up is an invita- 
 tion to travelers to cross," and where the further gate is lowered and 
 the nearer gate is not the questions involved.are for the jury." 
 
 "Wiar V. Wabash R. Co., 162 Iowa 702, 144 N. W. 703. 
 
 "Bagwell V. Southern Ry. Co., 167 N. C. 611, 83 S. E. 814, ipiS- 
 
 isStone V. Southern Pacific Ry. Co., 29 N. D. 480, 151 N. W. 36, 8 N. C. C. A. 
 1039. 
 
 "Denton v. Missouri K. & T. Ry., 90 Kan. 51, 133 Pac S58; 6 N. C. C. A. 301, 
 826. 
 
 "Chase v. New York Cent. R. Co., 208 Mass. 137; 94 N. E. 377- 
 
 loLouisville & N. R. v. Eckman, 127 Ky. 331, 125 S. W. 729; Sanders v. 
 Penn R., 225 Pa. St. 105, yj, Atl. loio. 
 
 "Louisville & N. R. v. Nethery, i6a Ky. 369, 169 S. W. 883; 8 N. C. C. A. 
 
 1047. 
 
 876 
 
MANAGEMENT OE GRADE CROSSINGS § I385 
 
 So the absence of lights on the gates may indicate negligence on the 
 part of the gateman.^' 
 
 Where an automobilist advances through open gates upon a railroad 
 crossing and stops, looks and listens and sees and hears nothing the 
 question of his contributory negligence is for the jury. There was evi- 
 dence that the railroad did not operate the gates after eight o'clock in 
 the evening but the plaintiff did not know of this rule and the fact that 
 the gates were open was an invitation to him to advance.^' 
 
 If a railroad company failed to lower the crossing gates in time to 
 give reasonable notice to the driver of the automobile of the approach 
 of the train it is liable. Here the gate descended on the top of the 
 automobile.^" 
 
 § 1385. Acts of flagman. — ^Where a railroad is bound to keep a 
 flagman at a crossing a driver of an automobile has a right to rely on 
 his absence as an indication that there is no danger,^^ and the failure 
 of the company to maintain a flagman at a dangerous crossing may be 
 negligence.^^ 
 
 Where the flagman does not signal till too late and then stops the 
 automobile on the track while if it had been allowed to go on it would 
 have been safe the company is liable.^^ 
 
 In an action against a railroad for collision at a crossing it is proper 
 to frame issues to the jury as to whether the flagman was at his post 
 and what he did and if not whether the collision would have occurred 
 if he had done so.^* 
 
 The fact that the flagman waves a white flag instead of the customary 
 red flag does not excuse the motorist for his carelessness.^^ 
 
 § 1386. Failure of crossing bell to ring. — ^The plaintiff is as matter 
 of law guilty of contributory negligence in attempting to drive over a 
 
 isRecord v. Penn. Ry. Co., 75 N. J. L. 3", 67 Atl. 1040. 
 
 I'Bush V. Philadelphia & R. Ry. Co., 232 Pa. 327; 81 Atl. 4og. 
 
 2»Louisville & N. R. Co. v. Nethery, 160 Ky. 369, 169 S. W. 883. 
 
 "Roby V. Kansas City So. Ry. Co., 130 La. 880, 58 So. 696, 41 L. R. A. N. S. 
 355. 
 
 22Southern Pacific Co. v. Walker, Tex. 1915, 171 S. W. 264, 8 N. C. C. A. 1048. 
 
 23Roby V. Kansas City S. R. Co., 130 La. 880, 58 So. 701, 41 L. R. A. N. S. 
 3SS, 4 N. C. C. A. 325- 
 
 2*Texas & P. Ry. Co. v. Eddleman, Tex. Civ. App. 175 S. W. 775. 
 
 ^sBorglum v. Nev\r York, N. H. & H. R. (Conn. 1916), 96 Atl. 174. 
 
 ^77 
 
§ 1387 AT RAILROAD CROSSINGS 
 
 railroad crossing without looking or listening although an electric bell 
 maintained there is silent. The silence of the bell is not an invitation to 
 cross as is a gate swung open.^" 
 
 § 1387. Wheel of automobile catching in planking. — ^A verdict 
 for the plaintiff was sustained on evidence that the wheel of the plain- 
 tiff's automobile was caught by the raised planking at a railroad cross- 
 ing where the railroad crossed the highway at an acute angle.^' 
 
 III. Managbment of Motor Vehicle. 
 
 § 1388. Duty of driver to look. 
 
 1389. Automobile as distinguished from other vehicles. 
 
 1390. Duty to look and listen when flagman at crossing. 
 
 1391. Passenger need not look. 
 
 1392. Alighting from the vehicle to go and look. 
 
 1393. Duty to stop. 
 
 1394. The Pennsylvania rule. 
 
 1395. Skidding across track. 
 
 1396. Auto stalled on track. 
 1397- Speed of motor vehicle. 
 
 1398. Duty to leave machine in danger. 
 
 1399. Not using public crossing. 
 
 1400. Where another crossing is available. 
 
 1401. Crossing ahead of train where view unobstructed. 
 
 1402. Where automobile brakes do not work. 
 
 1403. Automobile running into train at night. 
 
 § 1388. Duty of driver to look. — There is everywhere an obvious 
 duty imposed on the drivers of automobiles to look for trains before ap- 
 proaching a crossing, and where one with full knowledge of the danger- 
 ous character of a public railroad crossing drives upon it without look- 
 ing he assumes all risk.^* 
 
 The driver of an automobile canot recover full damages where he 
 approaches a railroad crossing at a speed of 20 miles an hour passing 
 some other teams and does not look and see the train until he is within 
 thirty feet from the crossing when it is too late to stop."" 
 
 2«Jacobs V. Atchison T. & S. F. Ry., Kans. 1916, 154 Pac. 1023. 
 
 z'Smith V. Illinois Central R. Co., Wis. 1916, 155 N. W. 933- 
 
 28Ft. Smith K. Co. v. Seran, 44 Okl. 169, 143 Pac. 1141, where the roadway 
 at the crossing was in bad shape. 
 
 See Borglum v. New York, N. H. & H. R. (Conn. 1916) ; 96 Atl. 174. 
 
 2» Atlantic Coast R. Co. v. Weir, 63 Fla. 69, 74, 58 So. 641, 41 L- R- A. N. S. 
 307 Ann. Cas. 1914 A. 126. 
 
 878 
 
MANAGEMENT OF MOTOR VEHICLE § I388 
 
 A driver is negligent in driving on a railroad crossing where he 
 
 could have discovered the approaching train had he looked where he is 
 
 chargeable with notice of the crossing.'" 
 This rule applies to an electric as well as a steam railroad." 
 Where the view is obstructed in approaching a crossing the driver of 
 
 an automobile is held negligent in all jurisdictions in approaching it 
 
 without looking. 
 
 Where the plaintiff riding a motorcycle negligently failed to look for 
 an approaching train as he might have before running on a railway 
 crossing he is negligent and cannot recover although the speed of the 
 train is excessive.'^ 
 
 A driver of an automobile may be as matter of law negligent when 
 he approaches a crossing where he can see down the track for a long 
 distance without looking to see if a train is approaching. But where 
 his attention is distracted by two teams both of which are frightened by 
 his automobile it is a question for the jury whether he is negligent 
 where he fails to hear the warning whistle from the train and does not 
 look.'' 
 
 He must look at the last possible opportunity just before going on 
 the crossing.^* 
 
 Where it appears that the plaintiff approaching a railroad crossing 
 could have seen the train approaching if he had looked when at least 
 forty-two feet from the track, and he did not look, he is as matter of law 
 negligent whether or not the statutory signals were given.'' 
 
 Where the view is obstructed till within a short distance of the 
 crossing the driver must look where he can see and have his machine 
 
 '"Horandt v. Central R. of Co., 81 N. J. L. 474; 83 Atl. S"- See Turck v. 
 New York Central R., 108 App. Div. 142, gs N. Y. Suppl. iioo, where the court 
 holds there is not enough evidence of the due care of a driver who is killed on a 
 crossing with which he is familiar. 
 
 'iQlick V. Cumberland & W. Elec. Ry. Co., 124 Md. 308, 92 Atl. 778, 8 N. C. C. A. 
 I03S- 
 
 '^Seaboard Air Line Ry. Co. v. Tomberlin, Fla. 1916, 70 So. 437- 
 
 "Adams v. Galveston Ry. Co., Tex. Civ. App. 164 S. W. 853, 8 N. C. C. A. 
 1042. 
 
 '*Spencer v. N. Y. Central R., 123 N. Y. App. Div. 789, 108 N. Y. S. 245 ; failure 
 to look during last thirty feet. 
 
 '^Shoemaker v. Central R. of New Jersey, N. J. Sup. 1914, 89 Atl. 517- 
 
 879 
 
§ 1389 AT RAILROAD CROSSINGS 
 
 under such control that he can stop if necessary before reaching the 
 track.^* 
 
 A driver of an automobile whose view is obstructed till he comes 
 within thirty or forty feet of a railroad track is negligent in not stop- 
 ping, looking and listening at that point before going on the track.'^ 
 
 The driver may be found free from contributory negligence in driv- 
 ing on a crossing slowly when his view is obstructed so that when he 
 sees a train approaching it is too late to avoid an accident although he 
 had already slowed down and looked and listened for a train and heard 
 and seen nothing.'* 
 
 The driver who stops, looks and listens fifteen feet from a railroad 
 crossing is not necessarily negligent in failing to look again when the 
 railroad speed at that point is limited to four miles an hour.'' 
 
 The driver may be held careful when he stops and listens at a point 
 within five or ten feet of a railroad crossing where his view is ob- 
 structed and then drives slowly on to the track.*" 
 
 Where a railroad is run through a cut on a curve so that a train ap- 
 proaching a highway crossing cannot be seen till the automobile has its 
 front wheel on the track the driver may be found careful where he 
 listens and looks at the only place where it would do any good where he 
 could see over the cut and drives slowly over the crossing immediately 
 after another machine. He is not bound to stop his machine, go for- 
 ward on foot on the track and look which operation would take from 
 two to five minutes as this would defeat its own object where the train 
 is approaching at over forty-five miles an hour.*^ 
 
 § 1389. Automobiles as distinguished from other vehicles. — 
 The same rule as to care at railroad crossings applies to drivers of 
 automobiles that is applied to drivers of other vehicles. The test is al- 
 ways whether plaintiff used the care of a prudent person. This is a 
 question for the jury.*^ 
 
 3»New York Central R. v. Maidment, 168 Fed. 21, 21 L. R. A. N. S. 794- 
 
 s^Brommer v. Penn. R. Co., (C. C. A. 3d Cir.) 179 Fed. 577, I03 C. C. A 
 13s, 29 L. R. A. (N. S.) 924. 
 
 'sLoftus V. Pacific Electric Ry Co., 166 Cal. 464, 137 Pac. 34. 
 
 ''Pittsburgh C. C. & St. L. R. v. Dove, (Ind. 1916) iii N. E. 609. 
 
 ^'Ohic Electric Ry. Co. v. Weingertner, 93 Ohio St. 124, 112 N. E. 203. 
 
 *iWalters v. Chicago, M. & P. S. R. Co., 47 Mont. 501, I33 Pac. 3S7, 4> L- R- 
 A. (N. S.) 702. 
 
 *2Central Indiana Ry. Co. v. Wishard, Ind. App. 1914, 104 N. E. 593- 
 
 880 
 
MANAGEMENT OP MOTOR VEHICLE § 139O 
 
 Where the rule is held that it is not the duty of one approaching a 
 railroad crossing to stop, look and listen, there is no reason why a dif- 
 ferent rule should be applied to an automobile approaching the cross- 
 ing.*' 
 
 It has even been said that a more rigid rule should be applied to motor 
 vehicles as with the coming into use of the automobile, new questions as 
 to reciprocal rights and duties arise. Hitherto the main consideration 
 at railroad crossings has been the danger to those crossing, but a pon- 
 derous structure such as an automobile "threatens not only the safety of 
 its own occupants, but also those on the colliding train." These ma- 
 chines are fast and easily controlled and offer temptation to the driver 
 to dash across. The chauffeur has better opportunity for precaution 
 than the driver of a horse for he can safely leave his machine while he 
 goes to look, and this the plaintiff or his friend should have done. The 
 rule in this respect should be more rigidly applied to the motorist than 
 to drivers of horses for the reason stated.** 
 
 § 1390. Duty to look and listen when flagman at crossing. — The 
 fact that there is a flagman at a railroad crossing and that he gave no 
 warning of a train does not relieve the occupants of an automobile from 
 the duty to stop, look and listen before driving on the track.*^ 
 
 Approaching a railroad crossing the operator cannot entirely rely 
 upon signals by the railroad employees but must actively safeguard his 
 own safety by using his faculties and failing to look when he could 
 see twenty feet from the crossing must be considered as negligence.*' 
 
 § 1391. Passenger need not look.*' — A passenger in an automobile 
 crossing a railroad track is not subjected to the same duty of looking 
 as the driver.*^ 
 
 *3Texas & P. Ry. Co. v. Hilgartner, Tex. Civ. App. 149 S. W. 1091, 7 N. C. 
 C. A. 4S4 
 
 **New York Central R. v. Maidment, 168 Fed. 21, 21 L. R. A. N. S. 794, 1902. 
 
 "Brommer v. Pennsylvania R. Co., (C. C. A. 3d Cir.) 179 Fed. 577; 103 C. 
 C. A. 13s; 29 L. R. A. (N. S.) 924. 
 
 *«Fogg V. New York, N. H. & H. R., 223 Mass. 444, in N. E. 960. 
 
 ^'Duties of passenger ; see ante § 1210. 
 
 "Thomas v. Illinois Cent. R. Co., 169 Iowa 337, ISI N. W. 387, 8 N. C. C. A. 
 1038. 
 
 881 
 
 S6 
 
§ 1392 AT RAII,ROAD CROSSINGS 
 
 But a wife who trusted to the care and caution of her husband who 
 was driving over a railroad crossing cannot recover if she was negli- 
 gent.*« 
 
 § 1392. Alighting from the vehicle to go and look, — In Georgia 
 Pacific R. Co. V. Lee/" the court say : 
 
 "We do not beheve that it is the custom of prudent men in ap- 
 proaching" railroad "crossings under ordinary circumstances 
 in a vehicle to do more than to stop and listen; and to look 
 only when that may be done without alighting from, and without 
 leaving their conveyances. We do not think that the exercise of 
 due care requires such travelers, under all circumstances, to 
 abandon their teams and go in advance sufficiently near the 
 track to see along its course, and then resume their vehicle, and 
 attempt a crossing which, perhaps, has become perilous hy rea- 
 son of their delay while taking this precaution against peril, or 
 which might become so in the interval while they are regaining 
 their conveyance after viewing the track * * * With per- 
 sons on foot the case is quite different. * * * The logic of 
 this position is eminently satisfactory, we think, and is not lack- 
 ing the support of adjudged cases though there are authorities 
 on both sides of it. * * * It was for the jury to determine 
 under all the circumstances, whether the driver was negligent in 
 not looking up and down the main track before attempting to 
 cross it."'^ 
 
 In Pennsylvania, however, the driver must look and listen even 
 though he cannot see from his seat but must get out and walk to where 
 he can see.^^ 
 
 § 1393- Duty to stop. — A driver of an automobile approaching 
 a railrway crossing is not charged with the absolute duty to stop, look 
 and listen except in Pennsylvania.^' 
 
 49pogg V. New York, N. H. & H. R., 223 Mass. 444, Mass. 11 1 N. E. 960. 
 
 ^<>Q2 Ala. 262, 268, 9 So. 230. 
 
 ^iln this connection it is of interest to note the remarks of Mr. Justice Buffing- 
 ton in New York Central etc. R. v. Maidraent, 168 Fed. Repr. 21, 1909. 
 
 s^^FoUmer v. Pennsylvania R. Co. (Pa.), 246 Pa. St. 367; 92 Atl. 34°, 8 N. C. 
 C. A. 1036. 
 
 s^Walters v. Chicago, M. & P. S. R. Co., 47 Mont, soi, 133 Pac. 357. 4^ L. R. 
 A. (N. S.) 702; Sandresky v. Erie R. Co., 91 Misc. 67, 153 N. Y. S. 612 (N. Y. 
 Sup.) ; Pendroy v. Great Northern Ry. Co., 17 N. D. 433, 117 N. W. S3i- 
 
 882 
 
MANAGEMENT OF MOTOR VEHICI,E § I394 
 
 A driver is not bound as matter of law to stop before coming to a 
 railroad crossing. The question is whether the plaintiff's conduct is 
 that of a reasonably prudent man. This may be found where he drives 
 at a speed of not more than four miles an hour past the end of box 
 cars standing on a track when he is hit by an unscheduled train which 
 gave no signal backing on the next track, at twenty-five miles an hour. 
 The regular scheduled train had just passed."* 
 
 A driver of an automobile is not necessarily negligent where he turns 
 off his power 200 feet from a railroad crossing where his view is ob- 
 structed and coasts noiselessly towards the crossing listening and hear- 
 ing nothing and on reaching the track suddenly sees a train approaching 
 at high speed. There was no positive duty on the driver to stop before 
 going on the track as he was listening and the automobile was noiseless. 
 The duty to stop before crossing does not arise except where there are 
 transient noises or temporary obstructions to the view."" 
 
 But where the circumstances as a driver approaches a crossing are 
 such as to impress him with a doubt as to whether it is safe to go for- 
 ward he is chargeable with contributory negligence if he does so.''' 
 
 The driver has a right to proceed without stopping where he relies on 
 the law requiring trains to be preceded by a man with a lighted lantern 
 at night." 
 
 § 1394. The Pennsylvania rule. — ^The Pennsylvania courts have 
 adopted and adhered rigidly to the rule that drivers of vehicles ap- 
 proaching a railroad crossing must stop, look and listen before going 
 on the track."* 
 
 Where a man driving an automobile stops about fifteen feet from the 
 nearest railroad track and looks but his view is obstructed and he 
 starts ahead and is struck by a freight train on the further track this is 
 contributory negligence as he should under the Pennsylvania rule, have 
 stopped where he could see.^° 
 
 "*Rouse V. Blair, 185 Mich. 632, 152 N. W. 204, 8 N. C. C. A. 1033. 
 
 "^Dickinson v. Erie R. Co., 81 N. J. L. 464; 81 Atl. 104, 6 N. C. C. A. 293. 
 
 58Emens v. Lehigh Valley R. Co., 223 Fed. 810, N. Y. Dis., 1915. 
 
 "Shepard v. Norfolk & S. R. Co., 116 N. C. 539, 82 S. E. 872, 8 N. C. C. A. 
 1049. 
 
 ssPeoples V. Pennsylvania R. Co., 96 Atl. 652, 251 Pa. St. 275. 
 
 fisCraig V. Penn. Ry. Co., 243 Pa. 455 ; 90 Atl. 13S. 6 N. C. C. A. 294, 8 N. C. 
 C. A. 1037. 
 
 883 
 
§ 1395 AT RAIIvROAD CROSSINGS 
 
 § 1395- Skidding across track. — One driving an automobile is 
 negligent in driving while it is snowing and raining when he hears a 
 locomotive whistle and when he sees a train applies his brakes and 
 skids on to the track. Prudence required 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, where his vision was so clouded by the 
 snow and rain."" 
 
 § 1396. Auto stalled on track. — ^The driver is negligent in backing 
 across a railway crossing and in doing so getting off the planking which 
 is sixteen feet wide and stalling his machine crosswise the track near 
 the cattle guards."^ 
 
 The court does not decide whether one is negligent who drives on a 
 railroad crossing and stops there and leaves his automobile while he 
 goes to quiet a frightened horse."^ 
 
 Where an automobile through the negligence of its driver becomes 
 stalled at a railroad crossing the railroad company owes its owner a 
 duty not to wilfully injure it after its servants should have discovered 
 the predicament of the automobile and not merely after they did do so. 
 So the railroad may be Uable when the plaintiff ran up the track 600-700 
 feet lighting matches and waving his arms where the engineer should 
 have seen him in ample time to stop if he had kept a proper look-out. 
 The defendant had the last clear chance to avoid the accident."^ 
 
 A railroad company is not liable where an automobile stalls on the 
 crossing and as soon as the engineer discovers it he applies his emer- 
 gency brakes. If the lives of the occupants of the automobile were in 
 danger the railroad might be bound to stop more summarily even at risk 
 of injuring their own property but they had no such duty to avoid hitting 
 the automobile.'* 
 
 The flagman may not be negligent in failing to go up the track and 
 stop trains which might hit an automobile stalled on the track and his 
 
 »<>Gage V. Atchison T. & S. F. Ry., 91 Kan. 253, i37 Pac. 938. 
 
 oiNicol V. Oregon-Washington R. & Navigation Co., 71 Wash. 409, 128 Pac. 
 628, 43 L. R. A. N. S. 174- 
 
 «2Tex. Cent. R. Co. v. Dumas, Tex. Civ. App. 1912, 149 S. W. 543- 
 
 o^Nicol V. Oregon- Washington R. & Navigation Co., 71 Wash. 409. 128 Pac. 
 628. See Packard v. New York, O. & W. Ry. Co., 160 App. Div. 856, 146 N. Y. S. 
 -878, 7 N. C. C. A. 543- 
 
 e^McBeth v. Atchison T. & S. F. Ry. Co., 95 Kan. 364, 148 Pac. 621. 
 
 884 
 
MANAGEMENT OE' MOTOR VEHICLE § 1397 
 
 statement to the occupants of the automobile as to when a train may be 
 expected was made without authority to bind the company and was not 
 the proximate cause of the accident."" 
 
 A statute requiring raih-oad ernployees to give timely signal of the 
 approach of a train does not render it the absolute duty of the trainmen 
 to stop the train on approaching an automobile and an instruction to 
 this effect is error."" 
 
 It is a question for the jury whether an engineer is negligent in fail- 
 ing to stop his train when he is sitting down when he discovers an auto- 
 mobile on the track,"' but the railroad will be liable where its train is 
 not stopped as the motorman is not at his post."* 
 
 It is the duty of the engineer of a locomotive to keep a careful look- 
 out and if he cannot, by reason of a curve in the track, see, the fireman 
 or some other person must do so. The question v^here an automobile 
 stops on the track is whether the plaintiff could or should in the exercise 
 of due care have been seen and whether the engine could have been 
 stopped in time to avoid an accident."" 
 
 Where an automobile is run carelessly on a railroad crossing and is 
 pushed along by a freight train backing but is not tipped over or any- 
 one injured till it is pushed off the planking on the crossing the rail- 
 road company is liable where the train could have been stopped before 
 tipping over the automobile if the brakeman had appUed the brake 
 promptly.'" 
 
 § 1397. Speed of motor vehicle. — The driver of an automobile is 
 not negligent as a matter of law in driving slowly towards a crossing 
 when he does not discover a train approaching until within six or eight 
 feet of the crossing.'^ 
 
 «5Carnochan v. Erie R. Co., 130 N. Y. S. SI4, 73 Misc. 131, I44 N. Y. S. 1108, 
 159 App. Div. 406, 7 N. C. C. A. 544. 
 
 e^Botts V. Chicago, B. & Q. R. Co., 180 Mo. App. 368, 167 S. W. 1154. 
 
 «'Tex. Cent. R. Co. v. Dumas, Tex. Civ. App. 149 S. W. 543- 
 
 osHuU V. Seattle, R. & S. R. Co., 60 Wash. 162; no Pac. 804, 7 N. C. C. A. 
 542 where the driver thought his disabled machine would coast across the 
 track. 
 
 «9Bagwell V. Southern R. Co., 167 N. C. 611, 83 S. E. 814. 
 
 "Springer v. Chicago etc. R., 95 Kan. 408, 148 Pac. 611, 8 N. C. C. A. 1050. 
 
 "I,aurisch v. Minneapolis, St. P. etc. R., Minn. 1916, 15S N. W. 1074. 
 
 88s 
 
§ 1398 AT RAILROAD CROSSINGS 
 
 The operator of an automobile is negligent as a matter of law who 
 runs without slackening speed towards a railroad crossing where he 
 could see the approaching train for a long distance/^ 
 
 § 1398. Duty to leave machine in danger. — ^A young man is guilty 
 of negligence in sitting in an automobile which has no door and is 
 driven at a speed of four to five miles an hour across a railroad cross- 
 ing when a train can be seen approaching rapidly and he although a 
 passenger had plenty of time to step out of the car on to the street/^ 
 
 A driver is not negligent necessarily in jumping from an automobile 
 instead of stopping it when suddenly placed in imminent peril at a 
 crossing although it would have been wiser to stop it as this is an honest 
 mistake in judgment which does not of itself constitute contributory 
 negligence J* 
 
 § 1399. Not using public crossing. — Where the driver of an auto- 
 mobile undertakes to cross a railroad elsewhere than at a public cross- 
 ing he cannot recover solely because the statutory signals were not 
 given by the railroad employees. The only duty which the railroad 
 company owes to a person in that situation is not to injure him or his 
 property wantonly or wilfully.''^ 
 
 It is proper to ask a plaintiff why in approaching a railroad track 
 he turned round a small house by the road as this question is ad- 
 missible on the issue of contributory negligence.''" 
 
 An automobilist is not negligent as matter of law when he finds a car 
 across a railroad crossing when the attempts to pass it by crossing the 
 tracks beyond the highway where there is no planking and stalls his 
 engine doing so. It was growing dark and the driver looked and 
 listened and saw and heard no train and when he attempted to crank 
 his engine he found it was still in gear and then attended to that and 
 cranked his engine when he discovered the car moving towards him and 
 attempted to back off. The questions of the due care of both parties 
 were for the jury.'' 
 
 72Southern Traction Co. v. Kirksey, Tex. Civ. App. 1916, 181 S. W. 545- 
 7sCoby V. Quincy O. & K. C. R. Co., 174 Mo. App. 648, 161 S. W. 290. 
 T^Dickinson v. Erie R. Co., 81 N. J. L. 464; 81 Atl. 104, 37 L- R- A. N. S. 
 
 ISO. 
 "Central of Georgia Ry. Co. v. McKey, 13 Ga. App. 477, 79 S. E. 378- 
 "Texas & P. Ry. Co. v. Eddelman, Tex. Civ. App. 17s S. W. 775- 
 "Gambell v. Minneapolis, St. P. & S. S. M. Ry. Co., 129 Minn. 262, 152 N. W. 
 
 408. 
 
 886 
 
MANAGEMENT OF MOTOR VEHICLE § I4OO 
 
 A railroad company is not liable to persons injured in an automobile 
 which goes upon its private right of way in the centre of the road pro- 
 tected by high curbing where there is no crossing as the defendant has 
 a right to assume that none will cross there.'* 
 
 § 1400. Where another crossing is available. — It is error where 
 the plaintiff's automobile is injured in crossing a defective railroad 
 .crossing to exclude evidence that the plaintiff might have safely used 
 another crossing a mile away.'° 
 
 § 1401. Crossing ahead of train v(^here view unobstructed. — 
 Where the view is unobstructed the driver of a motor vehicle is clearly 
 negligent in attempting to cross directly in front of an approaching 
 train.*" 
 
 § 1402. Where automobile brakes do not work. — ^Where the auto- 
 mobile does not respond to the brakes as readily as it would ordinarily 
 do according to the plaintiff's own estimates of speed and distance this 
 does not render the defendant liable in running an unlighted freight 
 train across a crossing at night.'^ 
 
 § 1403. Automobile running into train at night. — The defendant 
 railroad was not negligent in running a freight train of many cars slow- 
 ly across an unlighted crossing where there were lights only at each end 
 of the train. The defendant had no reason to suppose that an auto- 
 mobilist would not see the cars by the aid of his head-lights although 
 the night was somewhat foggy.*^ 
 
 The plaintiff is negligent when traveling at night in the rain towards 
 a crossing at fifteen miles an hour he fails to see and runs into a box 
 car being pushed over the crossing with two lights on it.*' 
 
 A verdict is properly ordered for the defendant where it appears that 
 the plaintiff was driving his automobile on a dark and stormy night 
 with the side curtains down and the windshield closed and drives with- 
 
 'sTaylor v. Philadelphia Rapid Transit Co., 245 Pa. 189; 91 Atl. 631. 
 
 "Ft. Smith & W. R. Co. v. Seran, 44 Okl. 169, 143 Pac. 1141. 
 
 '"Northern Pacific Ry. Co. v. Tripp., 220 Fed. 286, 8 N. C. C. A. 1041 ; Beau- 
 mont S. L. & W. Ry. Co. V. Moy (Tex. Civ. App. 1915) I74 S. W. 697, 8 N. C. C. 
 A. 1041. 
 
 "Gage V. Boston & Maine R. ^^ N. H. 289; 90 Atl. 855 L. R. A. 1915 A. 363. 
 
 s^Gage V. Boston & Maine R. R. 11 N. H. 289; 90 Atl. 855, L. R. A. 191 S, 
 A. 363, 8 N. C. C. A. 1043. 
 
 ssAUison v. Chicago, M. & St. P. Ry. Co., 83 Wash. 591, 145 Pac. 608, 8 
 N. C. C. A. 1044. 
 
 S87 
 
§ 1404 AT RAILROAD CROSSINGS 
 
 out slackening speed on to a railroad crossing ^which he knows is there 
 and runs into a freight car standing there.^* 
 
 A railroad company cannot be charged with negligence in leaving a 
 freight car at a crossing across a highway where it violates no statute 
 in doing so, without lights or other signal. The railroad employees in 
 the exercise of reasonable care had no reason to suppose that the driver 
 of an automobile proceeding at a proper rate of speed properly equipped 
 with lights and carefully operated would fail to see the freight car at 
 niglit.=° 
 
 IV. Management of Train. 
 
 § 1404. Speed of train. 
 
 1405. Duty of engineer to see head lights. 
 
 1406. Blowing whistle and ringing bell. 
 
 1407. Evidence of signals. 
 
 1408. Train backing. 
 
 1409. Switching — Flying switch. 
 
 1410. Headlight of train not lighted. 
 
 1411. Railroad rules as evidence. 
 
 § 1404. Speed of train. — It is not in itself evidence of negligence 
 that a train was moving at the rate of thirty miles an hour.'" 
 
 § 1405. Duty of engineer to see head lights. — One who drives 
 across a railroad crossing at night cannot well claim that the engineer 
 of an approaching freight train should have seen the head-lights of his 
 car and stopped the train where there are many other Ughts around the 
 crossing.*' 
 
 § 1406. Blowing whistle and ringing bell. — "The failure to ring 
 the bell or blow the whistle of an approaching train at a railroad cross- 
 ing, is not the proximate cause of the death of a person at the crossing 
 from being struck by such train, where he knew of its approach before 
 entering upon the track."** 
 
 But if, after diligently looking and listening, and seeing or hearing 
 nothing, the traveler attempts to cross the track and is struck by a train, 
 
 8*Farmer v. New York, N. H. & H. R., 217 Mass. 158; 104 N. E. 492. 
 ^^Trask v. Boston & Maine R. R., 219 Mass. 410 ; 106 N. E. 1022, 8 N. C. C. 
 A. 1044. 
 8'Bagwell v. Southern Railway Co., N. C. 191S, 83 S. E. 814. 
 «TCoby v. Quincy, O. & K. C. R. Co., 174 Mo. App. 648, 161 S. W. 290. 
 8'Thompson, Com. on Negligence, 2d. ed., sec. 119. 
 
MANAGEMENT OF TRAIN § I407 
 
 the failure of the engineer to have given proper and timely signals vi^ill 
 be counted as negligence the proximate cause of the injury.*' 
 
 • The liability of a railroad company to an automobilist caused by col- 
 lision at a crossing is dependent on the negligence of the railroad in fail- 
 ing to give the statutory signals by whistles required by law. Even 
 though the signals are not given the driver cannot recover if he is him- 
 self careless.'" 
 
 It must be left to the jury to decide what is proper warning or signal 
 by an engineer of a locomotive."^ 
 
 § 1407. Evidence of signals. — Evidence that witnesses did not hear 
 any warning whistle or signal may be submitted to the jury in the ab- 
 sence of affirmative evidence opposed to it.'^ 
 
 Where nine witnesses testified they heard neither bell or whistle 
 from an approaching train there is a question for the jury.'^ 
 
 The testimony of persons who were not giving attention that they 
 heard no bell or whistle by a train is no evidence that a signal was not 
 given. The testimony of one person who says he was giving attention 
 that no bell or whistle signal was given is only a mere scintilla of evi- 
 dence when opposed to that of twenty-four persons who say they heard 
 the signal.'* 
 
 But it is a question for the jury whether a whistle is blown on a rail- 
 road train where all the occupants of an automobile were listening for 
 
 *'See the following motor vehicle cases : Turck v. N. Y. C. etc. R., 108 App. 
 Div. 142, 95 N. Y. Supp. iioo; Noakes v. N. Y. C. etc. R., 121 N. Y. App. Div. 
 716, 106 N. Y. S. 522 ; Sherwood v. N. Y. C. etc. R., 120 N. Y. App. Div. 639, 105 
 N. Y. S. 547; Record v. Pennsylvania R. Co., 75 N. J. L. 311, 67 Atl. Repr. 1040; 
 Stretton v. N. Y. H. & H. R. Co., 198 Mass. 573, 84 N. E. 799; Read. v. N. Y. C. 
 etc. R., 123 N. Y. C. etc., Ry., 123 N. Y. App. Div. 228, 107 N. Y. S. 1068 ; Spencer 
 v. N. Y. C. etc. R., 123 N. Y. App. Div. 789, 108 N. Y. S. 245 ; Pendroy v. Great 
 Northern Ry., 117 N. W. Repr. 531, 17 N. Dak. 443; N. Y. Central etc. R. v. 
 Maidment, 168 Fed. Repr. 21, 1909; Sanders v. Pennsylvania R., 225 Pa. St. 105, 
 73 Atl. loio; Louisville & N. R. v. Eckman, 127 Ky. 331, 125 S. W. Repr. 729 
 (Ky.) ; Quigley v. Del. etc. C. Co., 142 Pa. St. 388, 396, 21 Atl. 827. 
 
 '"Trimble v. Philadelphia etc. R. Co., 4 Boyce (Del.) 519, 89 Atl. 370. 
 
 'iBagwell v. Southern Ry. Co., N. C. 83 S. E. 814. 
 
 '^Littlewood V. Detroit United Ry. Co., 1916 Mich., 155 N. W. 698. 
 
 »8Horandt v. Central R., 81 N. J. L. 474; 83 Atl. 511. 
 
 »*Chase v. New York Cent. R. Co., 208 Mass. 137 ; 94 N. E. 377- 
 
 889 
 
§ 1408 AT EAII^ROAD CROSSINGS 
 
 it and did not hear it although there is ample positive evidence that it 
 was blown.°° 
 
 § 1408. Train backing. — An automobilist may recover who, while 
 crossing the track is hit by an electric car run backward without lights,^' 
 or when hit by a box car backing across a crossing.'^ 
 
 Running a train backwards without signals and lookout at twenty- 
 five miles an hour is not such gross negligence as to authorize recovery 
 by a driver struck at a frequented crossing notwithstanding his con- 
 tributory negligence."^ 
 
 § 1409. Switching — "Flying switch." — It is error to omit the ele- 
 ment of negligence in switching cars as an element of liability."^ 
 
 Where a railroad is engaged in the operation of making a "flying 
 switch," and the plaintiff when thirty feet from the track stops and 
 looks and listens and sees an engine with a single car going west run 
 on to a siding although he can only see in one direction, west, his due 
 care is a question of fact for the jury. An ordinarily prudent man 
 might conclude there was no danger from either direction where there 
 was only one main track and he is struck by the string of cars coming 
 behind the engine and single car.^"" 
 
 § 1410. Headlight of train not lighted. — It is evidence of negli- 
 gence that a train is run at night without having its headlight Ut es- 
 pecially where the driver of the motor vehicle looked and did not see 
 the train.^ 
 
 § 141 1. Railroad rules as evidence. — The rules of the railroad are 
 admissible on the question of its negligence.^ 
 
 s'iUnited Rys. & Electric Co. v. Grain, 123 Md. 332; 91 Atl. 405. 
 '^Bidwell V. Los Angeles etc. R. Co., 169 Cal. 780, 148 Pac. 197. 
 "Hauff V. S. D. Cent. Ry. Co., 34 S. D. 183, 147 N. W. 986, 8 N. C. C. A. 1041. 
 »sRouse V. Blair, 185 Mich. 632, 152 N. W. 204, 8 N. C. C. A. 1033. 
 ssRotts V. Chicago, B. & Q. R., 180 Mo. App. 368, 167 S. W. iiS4- 
 looCentral Indiana Ry. Co. v. Wishard, Ind. App. 1914, 104 N. E. 593. 
 iPayne v. Great Northern Ry. Co., Minn. 148 N. W. 889, 8 N. C. C. A. I04S- 
 ^Texas & P. Ry. Co. v. Hilgartner, Tex. Civ. App. 149 S. W. 1091, 7 N. C. C. 
 A. 454- 
 
 8go 
 
CHAPTER XLVI. 
 
 STREET RAILWAYS. 
 
 I. In GfiNERAi,. 
 
 § 1412. Mutual rights of street cars and vehicles. 
 
 1413. Motorman's presumption. 
 
 1414. Right to assume motorman will be careful. 
 
 1415. Rules of company as evidence. 
 
 1416. Liability of street railway company to its own passengers for collision 
 with automobile. 
 
 1417. Automobilist standing between auto and track. 
 
 1418. Automobile standing too near car track. 
 
 1419. Duty to stop before passing standing street car. 
 
 1420. Pulling automobile out of excavation. 
 
 1421. Subway excavation.^ • 
 
 § 1412. Mutual rights o£ street cars and vehicles — In general. 
 
 — The respective rights on the highway, of street railway cars and those 
 of vehicles generally, and the duties which they reciprocally owe each 
 other thereon, have been the subject of much controversy and many 
 judicial decisions. Statutes have been enacted,^ but their provisions 
 hardly extend beyond the prohibition of a wilful obstruction of the 
 passage of cars. The exercise of the respective rights and duties of 
 each class of travelers is a matter which has been left to judicial con- 
 sideration and settlement. 
 
 The fundamental common law principle has been seen to be, that 
 every member of the community has an equal right to use the public 
 thoroughfares so long as he does not interfere with the exercise of 
 the equal right thereto of his fellow-citizens. Such rights are usually 
 called easements, and as they are common to all, they are spoken of 
 as public easements. It is also settled in the common law that all 
 
 '^See Appendix A for statutes on the subject. CoUison with street car. — 
 Injuries received in collision between automobile and street car. 4 N. C. C. A. 
 12, 13 note. 
 
 ^See Statutes Appendix A. See § 1666, for distances within which a trolley car 
 may be stopped. 
 
 891 
 
§ I4I2 STREBIT RAILWAYS 
 
 public easements are under legislative control and regulation. The 
 sovereign power may be exercised by public boards or municipal 
 bodies, or by corporations, as the legislature shall determine and 
 grant. 
 
 It is familiar law that every grant carries with it all incidental rights 
 and powers necessary to the full use and beneficial enjoyment of the 
 grant. Where such a grant has for its object the procurement of an 
 easement for the public, the incidental powers must be so construed as 
 most effectually to secure to the public the full enjoyment of such ease- 
 ment. 
 
 The leading object and public benefit of all street railway grants 
 is the accommodation of all travelers who have occasion to use the 
 cars. The profit to the proprietors is a subordinate consideration, in- 
 tended as a mere mode of compensating them for their outlay in 
 constructing and keeping up the public easement. 
 
 In the case just cited,' the opinion comprehensively reviews the prin- 
 ciples of law underlying and controlling the operation of street cars 
 on the highway, in their relation to other traffic. The proceeding was 
 . by an indictment for obstructing a street car by driving a heavily 
 loaded vehicle with one wheel on the railroad track when the car 
 came up behind. There was room outside the track for the team to 
 drive so that the car could pass. Upon request to move his team, the 
 driver refused and the passage of the car was obstructed. As the 
 case has been followed and cited with approval in many jurisdic- 
 tions, the following taken from the opinion of Chief Justice Shaw, 
 will throw light on the duty of motor vehicle operators in their rela- 
 tions with street railway cars: 
 
 "Where the entire public each according to his own exi- 
 gencies has a right to the use of the highway, in the absence 
 of any special regulation of law, the right of each is equal, but 
 as two or more cannot occupy the same place at the same time 
 * * * each is bound to a reasonable exercise of his absolute 
 right in subordination to a like reasonable use of all others, 
 and not to encumber it over a larger space or for a longer time 
 to the damage of any other, than is reasonably necessary to the 
 beneficial enjoyment of his own right. * * * 
 
 "Several things are to be here observed. The cars could only 
 pass on one precise line. The wagon could deviate to the right 
 
 sCotn. V. Temple, 80 Mass. 69, 74, 76. 
 
 892 
 
IN GENERAL § I4I2 
 
 or to the left within the limits of the traveled part of the 
 road. The public by the grant of the franchise, had granted 
 the right to move on that precise line, and had given to all 
 passengers the right to be carried on that line at the usual rate 
 of speed * * * subject only to occasional necessary im- 
 pediments. The cars cannot so move, and the passengers can- 
 not be so carried, whilst the wagon moves on the track. No im- 
 pediment is shown to prevent the wagon from turning out. 
 The wagon therefore was for the time being an unnecessary 
 obstruction of the public travel and therefore unlawful. * * 
 
 "Whilst the track was not required for the cars, perhaps the 
 teamster had a right to so use it, but when required for the 
 cars, which could pass in no other mode, he had no legal right 
 to consult his own convenience to the great inconvenience, the 
 actual injury, of the equal rights of another. * * * 
 
 "It is a nuisance if for his own benefit, he violates the rights 
 of others. * * * It is a nuisance if one wilfully seeks and 
 pursues his own private advantage, regardless of the rights of 
 others and in plain violation of them; it is a wrong done. 
 
 * * * 
 
 "If it be said that the obstruction * * * ^^g ygry slight, 
 that the cars were delayed but a very short time, the answer is 
 
 * * * the injury may be trifling in itself, but ***;(■ 
 tests a principle of very great importance. If the driver of a 
 heavily loaded * * * wagon may for his personal con- 
 venience, use one rail of the track wilfully for a few hundred 
 feet, others may use the other rail for the like purpose and for 
 any distance which suits their convenience. * * * Cars 
 
 * * * and passengers * * * may find their business 
 greatly deranged. * * * 
 
 "The corporation had a right and were bound to move at the 
 rate of speed usual for vehicles for the carriage of passengers, 
 
 * * * provided this right could be enjoyed without pre- 
 venting the loaded team from moving at its usual and proper 
 speed, and both could be done by the team ahead turning off 
 the track, which the car in the rear could not do. It was there- 
 fore the duty of the team, in the reasonable use of the public 
 right to do it." 
 
 Prom these observations, it is apparent that neither party has an 
 exclusive right of way, each is required to observe a due regard for 
 the rights of the others.* 
 
 *NoTE. — Where street cars, as is sometimes the fact, possess a right of way, 
 it is by virtue of local traffic rules. For example, § 2, Art. 3, Boston Street 
 Traffic Regulations provide that, subject to the rights of way given to the 
 
 893 
 
§ 1 41 3 STREET RAIIvWAYS 
 
 While the rights of a street railway company to that part of a 
 street on which its tracks are laid is not an exclusive one its rights 
 are superior to those of the general public except at crossings where 
 the rights of both are equal.' 
 
 A street car ordinarily has the right of way.* 
 
 § 1413. Motorman's presumption. — The motorman has the right 
 to presume that others will exercise ordinary care until the contrary 
 appears.' 
 
 So he has a right to presume that an automobile approaching up 
 an intersecting street will stop or turn before crossing the track di- 
 rectly in front of an electric car.* 
 
 § 1414. Right to assume motorman will be careful. — ^A driver 
 of an automobile may assume that a motorman will use reasonable care 
 to avoid running him down, but this does not excuse him from using 
 reasonable care to avoid getting in a dangerous place.' 
 
 § 1415. Rules of company as evidence. — On the question of the 
 speed with which a street car approached a switch, rules of the com- 
 pany are inadmissible to show its negligence.^" 
 
 § 141 6. Liability of street railway company to its own pas- 
 sengers for collision with automobile. — In a collision between a 
 street car and an automobile the street car company is responsible to 
 its passenger although the driver of the automobile was negligent if 
 
 vehicles of the police and fire departments, and to those transporting the mail, 
 and ambulances : "Street cars shall have the right of way between cross streets 
 over all other vehicles ; and the driver of any vehicle proceeding on the track in 
 front of a street car shall immediately turn out on a signal by the motorman or 
 conductor of the car." Statutes commonly require vehicles to turn seasonably 
 oflF of car tracks; O'Brien v. Blue Hill Ry., 186 Mass. 447, 71 N. E. 951 ; Robinson 
 V. Louisville Ry. Co., 112 Fed. Repr. (Ky.), 486. 
 
 Bparnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233. See McFadden 
 V. Metropolitan St. Ry. Co., 161 Mo. App. 652, 143 S. W. 884; Bruening v. 
 Metropolitan St. Ry. Co., 180 Mo. App. 434, 168 S. W. 248. 
 
 ^Westover v. Grand Rapids Ry. Co., 180 Mich 373, 147 N. W. 630. 
 
 ^Garrett v. People's Ry. Co., 6 Pennew. 29 (Del.), 64 Atl. 254; Pantages v. 
 Seattle Electric Co., 55 Wash. 453, 104 Pac. Repr. 629; Minneapolis Ry. Co. v. 
 Odegaard (C. C. A. 8th Cir.), 182 Fed. 56, 104 C. C. A. 496. 
 
 sUnderwood v. Oskaloosa Traction & Light Co., IS7 Iowa 352, 137 N. W. 933- 
 
 »Gadbois v. Bay State St. Ry. Co., 216 Mass. 188; 103 N. E. 294. 
 
 lOBrown v. Detroit United Ry., 179 Mich 404, 146 N. W. 278, 7 N. C. C. A. 
 410. 
 
 894 
 
IN GEN^RAt § I417 
 
 the motorman was also negligent.^^ But a passenger cannot recover 
 against a street railway company where the collision was caused by the 
 gross carelessness of the chauffeur of an automobile where the motor- 
 man of the street car had no reason to suppose that the chauffeur 
 would not turn his machine in time to avoid the accident.^^ 
 
 § 1417. Automobilist standing between auto and track. — An 
 autoist is guilty of contributory negligence where his machine be- 
 comes out of order and stops on the road near a street car track and 
 the owner gets out on that side so near the car track that he must 
 be hit by any car passing and he is struck and thrown.^^ 
 
 § 1418. Automobile standing too near car track. — It may be 
 such negligence as to bar recovery for an automobilist to have his ma- 
 chine standing in the road so near the car track as to be struck by a 
 street car passing where it is not so near that it must be evident to the 
 motorman that he must stop his car.^* 
 
 In one case the court remarks where the automobile was struck 
 by steps in the middle of the car, "The car was run with extreme care, 
 and it was at all times, at least until its front end had safely passed 
 the plaintiff, under the complete control of the motorman. The evi- 
 dence shows that he saw the plaintiff and that he was exercising care 
 to avoid a collision with him. While the plaintiff was in a better 
 position than the motorman to determine whether there was room to 
 pass, he gave no sign to the contrary, and the motorman had the right 
 to presume that there was no danger of a collision. Beem v. Tama 
 Ry. Co., 104 Iowa 563, 73 N. W. 1045 >' Wilkins v. Ry. & Bridge Co., 
 96 Iowa 668, 65 N. W. 987 ; Hayden v. Fair Haven Ry. Co., J^ Conn. 
 355, 56 Atl. 613."" 
 
 "Pittsburgh Rys. Co. v. Givens, 211 Fed. 885, 128 C. C. A. 263, 3d. Cir. 
 
 "Minneapolis St. Ry. Co. v. Odegaard, (C. C. A. 8th Cir.) 182 Fed. 56, 104 
 C. C. A. 496. 
 
 "Lotharius v. Milwaukee Electric Ry. & Lighting Co., 157 Wis. 184, 146 
 N. W. 1122. See Breese v. Nassau Electric R.Xo., 162 App. Div. 455, 147 N. Y. 
 S. 416 where the question of contributory negligence was left to the jury. 
 
 i*Hause v. Lehigh Valley Transit Co., 38 Pa. Super. Ct. 614, 1908. 
 
 isSharpnack v. Des Moines City Ry., Iowa 1908, 115 N. W. Repr. 475. See 
 Lawrence v. Fitchburg etc. Ry., 201 Mass. 489 ; 87 N .E. 898, where a passenger 
 was found negligent in remaining in a street car stalled near a car track. 
 
 895 
 
§ I4I9 STREET RAILWAYS 
 
 A motorman of a street car may be found negligent who sees an 
 automobile stalled close to the track and attempts to pass thinking he 
 has space to do so and does not notice the projecting top in the dusk.^* 
 
 § 1419. Duty to stop before passing standing street car.^' — 
 An automobile is not required to slow up as it passes a moving trolley- 
 car in the country. The duty is different where the trolley is standing 
 to receive and discharge passengers. Nor is a motor vehicle operator 
 called upon to assume that a passenger will leap from a trolley car 
 while it is in motion and step right in front of him.^' There is always 
 a duty devolving on the motorist concerning persons entering or leav- 
 ing street cars. 
 
 The Massachusetts motor vehicle law sums up the whole duty in this 
 respect 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 be 
 necessary for the safety of the public, he shall bring said ve- 
 hicle to a full stop."" 
 
 In Brewster v. Barker/" Presiding Judge McLennan says: 
 
 "It cannot be possible that the owner or driver of an auto- 
 mobile may pass a car from which he knows passengers are 
 alighting and others are being received, * * * going at the 
 rate of six or seven miles an hour without being guilty of negli- 
 gence. We think it is no answer to the proposition to say that 
 an automobile owner or driver has a right to rely upon the sup- 
 position that the passenger alighting from such a car will see to 
 it before he steps upon the ground or pavement, that such au- 
 tomobile is not in such proximity as to run him down." 
 
 Operators of motor cars are bound to take notice that passengers are 
 likely to leave or enter a street car at street crossings, and to approach 
 such a place at a considerable rate of speed, or in a heedless manner 
 may amount to an act of extreme recklessness.^^ 
 
 "Mertz V. Conn. Co., 112 N. Y. 166 N. E. 166. 
 I'See further ante § 364. 
 
 i^Starr v. Schenck, 25 Mont. Co. R., 18 (Pa.) 1907. 
 I'Act of 1909, chap. 534, sec. 14. 
 20129 N. Y. App. Div. 724, 113 N. Y. S. 1026. 
 
 2iLiebrecht v. Crandall, no Minn. 454, 126 N. W. Repr. 69; Arseneau v. Sweet, 
 106 Minn. 257, 119 N. W. 46. 
 
 896 
 
IN GfiNERAI, § 1420 
 
 It is a common requirement that vehicles shall stop and not pass a 
 street car standing to allow passengers to alight or embark. Under 
 such a statute a conductor on a street car may recover even if he falls 
 from the car into the street while the car is stopped and is run into by 
 a truck.^^ 
 
 The statute is intended for the protection of a conductor of the 
 street car as well as the passengers.^' 
 
 Here the defendant was charged with passing a street car standing 
 to allow passengers to alight or embark at a speed faster than six 
 miles an hour as the statute provided and the defense was that the 
 street car had already passed its usual stopping place and stopped only 
 to avoid a collision. It is a question for the jury.^* 
 
 Plaintiff is not as matter of law negligent when approaching a street 
 railway crossing he looks north about fifteen feet before crossing 
 the track and sees nothing in that direction and then looks south, 
 watching a car approaching from that direction where the crossing is 
 rough and he is driving very slowly when hit by a car from the north 
 when he knew that all cars from the north should stop at a safety stop 
 before reaching the crossing.^' 
 
 § 1420. Pulling automobile out of excavation. — Where the 
 plaintiff drove his car into an excavation so that it lay across the 
 street car tracks and the street railway employes in the plaintiff's pres- 
 ence and without objection by him attached a rope to it and pulled it 
 out, injuring it, the street railway company is not liable. It does not 
 appear that their conduct was improper. They owed the plaintiff no 
 more than the duty of ordinary care.^° 
 
 But where an automobilist is trying to extricate his machine from a 
 hole into which he has run and is struck by an employee of a street 
 railway company he can recover exemplary damages from the com- 
 pany." . - :<fr\WM^^ 
 
 ^^Kling V. Thompson-McDonald Lumber Co., 127 Minn. 468, 149 N. W. 947, 
 8 N. C. C. A. 586. 
 
 ^'Kling V. Thompson-McDonald Lumber Co., 127 Minn. 468, 149 N. W. 947, 
 8 N. C. C. A. 586. 
 
 2*Grouch V. Heffner, 184 Mo. App. 365, 171 S. W. 23 ; 8 N. C. C. A. 580. 
 
 ^'Shore V. Dunham, Mo. App. 1915, 178 S. W. 900. 
 
 2'Augerson v. Seattle Electric Co., 73 Wash. 529, 132 Pac. 222. 
 
 "Memphis St. Ry. Co. v. Stratton, 131 Tenn. 620, 176 S. W. 105 L. R. A. 
 N. S 191S E. 724. 
 
 897 
 
 57 
 
§ I42I STREET RAILWAYS 
 
 § 142 1. Subway Excavation. — In a New York case it appeared 
 that the street was excavated for the construction of an underground 
 railroad. A fence had been built to guard the excavation. This fence 
 stood quite near the double track surface railroad. At about the point 
 where the accident occurred was a "cross-over" track, connecting the 
 two lines of rail. Plaintiff alleged that there was between the tracks 
 a hole in the road about five or six inches deep, into which the wheel 
 of intestate's machine slipped, causing it to swerve into the fence and 
 plunge into the excavation. It was also shown that deceased was in 
 the act of crossing from one track to the other in an effort to run his 
 car in ahead of a surface car. Plaintiff alleged that the city and rail- 
 road company were each liable for the hole in the pavement, and the 
 city in particular, for maintaining an insufficient fence. There was 
 also some testimony indicating that intestate's wheel caught in the 
 switch of the "cross-over." 
 
 Held, ( I ) The railroad company built its tracks under legislative au- 
 thority ; the subway was being constructed under like authority. Over 
 neither corporation did the city have any control, hence it would be 
 "unreasonable" to hold the city responsible f^ 
 
 (2) It having been shown that the hole did not exist before the 
 subway construction commenced, it was that which caused the hole 
 in the street and not the neglect of the surface road ; 
 
 (3) Plaintiff's intestate was familiar with the locality and knew its 
 dangers. As he was trying to get ahead of a street car, his speed 
 was presumably too high for safe traveling in such a place, and it was 
 this that caused the accident ; 
 
 (4) The same would apply in case intestate's wheel caught in the 
 switch of the "cross-over." 
 
 § I422. 
 
 1423 
 1424. 
 
 142s 
 1426, 
 1427, 
 
 14 
 
 1429, 
 
 1430. 
 
 II. Driving on Track. 
 In general. 
 Looking behind. 
 
 Turning from one track to another. 
 Street car overtaking vehicle. 
 Negligence towards one turning out of car tracks. 
 Power of Automobile failing on track. 
 Automobile skidding on track. 
 Crowding vehicle on to track. 
 Head-on collision, last clear chance. 
 
 28Morris v. Interurban St. Ry. Co., 100 N. Y. App. Div. 295, 91 N. Y. S. 479- 
 
 898 
 
DRIVING ON TRACK § 1422 
 
 § 1422. In general. — It is not negligent as a matter of law to 
 drive on the rails, or between the rails of a street car track either 
 by day or at night. The driver of the vehicle that can leave the track 
 has the right to assume that the motorman will exercise at least a 
 sufficient degree of care not to run him down; and it is the duty of 
 the driver of the vehicle which cannot leave the track to avoid such 
 collision.^' 
 
 The driver of an automobile is not negligent in traveling on street 
 railway traclts within the limits of the highway where he could use no 
 other part of the road due to snowdrifts raised in part by the opera- 
 tion of the defendant's snowplows. A. stopped and endeavored to 
 attract the attention of the motorman by blowing his horn. This was 
 the act of a prudent man when he had not sufiScient time to back his 
 car to a safe place.^° 
 
 It cannot be held as matter of law that the plaintiff has no case 
 where it appears that he turned in from a side street, then turned 
 north on electric car tracks and was hit by an electric car coming 
 from behind although he testifies he looked as he turned and saw no 
 car coming as it is possible the car was out of sight behind a turn in 
 the road when he looked. ^^ 
 
 But a driver who drives on a street car track though he sees a car 
 approaching and continues on it some twenty-five feet before the 
 collision which he could have avoided by speeding up and going 
 straight across the track is guilty of contributory negligence although 
 the jury found otherwise.^^ 
 
 For a chauffeur to run up behind a buggy and turn across a street 
 car track in passing the buggy and then turn back and attempt to pass 
 the street car without reducing speed or giving warning is sufficient 
 evidence of negligence. ^^ 
 
 2«Chaput V. Haverhill & G. Ry., 194 Mass. 220, 80 N. E. 597; Foley v. Forty- 
 Second St. etc. Ry., 49 Misc. 649, 97 N. Y. Supp. 958. 
 
 soRichardson v. Haverhill & D. St. Ry. Co., 218 Mass. 52; 103 N. E. 221. 
 
 ^iRieck V. Chicago & Milwaukee Electric Ry. Co., 152 Wis. 232, 151 N. W. 
 243. 
 
 ^^Bertrand v. Milwaukee Electric Ry. & Light Co., 156 Wis. O39, 146 N. W. 
 915- 
 
 33Grouch y. Heffner, 184 Mo. App. 365, 171 S. W. 23 ; 8 N. C. C. A. 580. 
 
 899 
 
§ 1423 STREET RAILWAYS 
 
 § 1423. Looking behind. — ^The driver of an automobile need not 
 keep looking behind to guard against being overtaken and run down 
 by a street car.'* 
 
 In Watts V. Stroudsburg Pass. Ry.'" Presiding Judge Staples re- 
 marks: 
 
 "While a person has the right to use the tracks of an electric 
 railway company by running an automobile therein, he must 
 use care. and caution in so doing, and if he knows a car is 
 coming from the rear, he must use more than ordinary care and 
 caution, and he is guilty of contributory negligence if he fails 
 to do so." 
 
 But he is not required to keep such a lookout to the rear as will 
 impair his lookout ahead, the latter duty being paramount.'' 
 
 § 1424. Turning from one track to another. — A motorist driv- 
 ing on a street car track approaching a street car may be found negli- 
 gent where he turns suddenly on to the other track in front of a car 
 on that track.'' 
 
 Where an automobile at a street intersection turns to the left behind 
 a car going in the same direction and is hit by a car coming in the 
 opposite direction the negligence of the defendant may be based on the 
 failure of the car that struck the automobile to sound a gong, and on 
 the passing of the two cars within the street intersection contrary to 
 ordinance.'* 
 
 § 1425. Street car overtaking vehicle. — When a street car comes 
 up behind a vehicle driving on the tracks, it is the motorman's duty to 
 give warning, and if he runs into it, such act is negligence on his part, 
 even though the vehicle's duty is to get off the track." 
 
 But the operator of an automobile may be negligent in closing his 
 throttle and descending a hill by gravity when he opens the throttle 
 
 s*Bruening v. Metropolitan St. Ry. Co., 180 Mo. App. 434, 168 S. W. 248. 
 
 3534 Pa. Co. Ct. Reps. 373- 
 
 3«Baldie v. Tacoma Street Ry., 52 Wash. 75, 100 Pac. 162. 
 
 s^Tremaine v. JoHne, 145 N. Y. S. 46, App. Terra. 
 
 ssphillips V. Denver etc. Co., 53 Colo. 4S8, 128 Pac. 460, 7 N. C. C. A. 487- 
 
 »9 Vincent v. Norton etc. Ry., 180 Mass. 105, 61 N. E. 822; Foley v. Forty- 
 Second St. etc. Ry., 49 Misc. 649, 97 N. Y. Supp. 958; Lehman v. N. Y. City Ry. 
 Co., 107 N, Y. Supp. s6i, App. Term. 
 
 goo 
 
DRIVING ON TRACK § I426 
 
 again and the engine will not fire when he has had the same trouble 
 before.*" 
 
 The chauffeur is not bound when drivng on the car track to keep 
 looking behind.*^ 
 
 § 1426. Negligence towards one turning out of car tracks. — 
 There are often occasions where by reason of congested traffic, the 
 width or some other condition of the road, it appears to the operator 
 impracticable to "turn out." In such a case the law is stated in Mc- 
 Connell v. Atlantic Ave. R.,*^ where the driver of a vehicle, upon being 
 required to leave the track in order to permit the passage of a street 
 car approaching from behind, attempted to do so by turning to the 
 right but found the street obstructed on that side. He then turned 
 to the left where he saw a street car two hundred feet distant coming 
 towards him. He endeavored to clear both tracks, but was struck by 
 the second car. The court, by Judge Osborne, say : 
 
 "It is urged * * * that the motion to dismiss, at the end 
 of plaintiff's case should have been granted on the ground of a 
 failure to prove his freedom from contributory negligence. 
 * * * We are of opinion that the plaintiff made out a case 
 that it was proper to submit to the jury on the question of plain- 
 tiff's freedom from contributory negligence. * * * jje was 
 bound to get off the track to make room for the car approach- 
 ing behind him to pass. * * * jje could not turn to the 
 right * * * and the only course left him to pursue was to 
 turn to the left. He had looked just before and seen de- 
 fendant's car approaching, and at a distance of some two hun- 
 dred feet from him, and we think was justified in assuming that 
 he would be able to cross before the up-car could reach him. It 
 was the duty of the motorman of the up-car to be on the look- 
 out, and to have his car under control to avoid injury to ve- 
 hicles. It seems to us that it was a question for the jury to de- 
 termine whether, under all the circumstances, plaintiff's driver 
 was free from negligence, and whether the injuries sustained 
 were due to the negligence of the motorman."*' 
 
 ^oWatts V. Stroudsburg Passenger Ry., 34 Pa. Co. Ct. 373. 
 
 *iBaldie v. Tacoma St. Ry. Co., 52 Wash. 75, 100 Pac. 162. 
 
 ^232 N. Y. Supp. 114, II Misc., 177. 
 
 *'See the following motor vehicle cases : King v. Consol. Traction Co., 33 
 Pittsb. L. J. N. S. 138, I L. R. A. N. S. 215 (Pa.) ; Csesar v. Fifth Ave. Stage Co., 
 45 N. Y. Misc. 331, 90 N. Y. S. 359; Chittendon v. Columbus (City), 26 Ohio C. 
 
 901 
 
§ 1427 STREET EAI1,WAYS 
 
 The plaintiff was allowed to recover where he turned on to the 
 street car track to pass three standing teams and the rear wheel of his 
 automobile was hit as he drove off the track.** 
 
 The driver of an automobile may be found careful where on ap- 
 proaching a street railway track he looks in one direction and sees 
 nothing and then looks in the other direction where an engine was 
 threatening and while crossing very slowly as he had to on account of 
 the rough condition of the road between the rails he observes a train 
 bearing down on him and turns off the track but the rear of his ma- 
 chine is hit as the rear wheel caught in the track.*' 
 
 § 1427. Power of automobile failing on track. — Where the 
 driver of an automobile fails to get off the track due to a failure in his 
 power and signals an approaching street car whose motorman does 
 everything possible to stop his car a verdict for the plaintiff of one 
 dollar may be sustained.** 
 
 Where an automobile stalls on the tracks on a dark and foggy night 
 and the chauffeur goes back to stop a street car due the plaintiff is 
 negligent in sitting in the automobile.*' 
 
 § 1428. Automobile skidding on track. — Where an auto- 
 mobile is being driven on the tracks towards an approaching street 
 car and skids when the driver attempts to turn it out, the motorman 
 
 C. 531 ; Morris v. Interurban St. Ry. Co., 100 N. Y. App. Div. 295, 91 N. Y. S. 
 
 479 ; Hirsch v. Interurban St. Ry., 94 N. Y. Supp. 330, App. Term 1905 ; Garrett 
 
 V. People's Ry., 6 Pennew. 29 (Del.), 64 Atl. 254; Garside v. N. Y. Transp. 
 
 Co., 146 Fed. Repr. 588; Foley v. Forty-Second St. Ry., 97 N. Y. Supp. 958, 
 
 49 Misc. 649; Garfield v. Hartford etc. St. Ry. Co., 79 Conn. 458, 6S Atl. 598; 
 
 Garfield v. Hartford etc. St. Ry. Co., 80 Conn. 260, 67 Atl. 890; Campbell v. St. 
 
 Louis Transit Co., 121 Mo. App. 406, 99 S. W. 58; Watts v. Stroudsburg Pass. 
 
 Ry., 34 Pa. Co. Ct. Reps. 373; Starr v. Schenck, 25 Mont. Co. (Pa.) Rep. 18; 
 
 Birch V. Athol & Orange St. Ry. Co., 198 Mass. 257, 84 N. E. 310; Sharpnack 
 
 V. Des Moines City Ry., 115 N. W. Repr. 475 (la.) 1908; Hause v. Lehigh Valley 
 
 Transit Co., 38 Pa. Super. Ct. Repr. 614; Brewster v. Barker, 129 N. Y. App. 
 
 Div. 724, 113 N. Y. S. 1026. See also Omaha St. Ry. Co. v. Larson, 70 Neb. SPi, 
 
 g^ N. W. 824. 
 i^Weck V. Reno Traction Co., Nev. 1915, I49 Pac. 65. 
 «5St. Louis & S. F. R. Co. v. Model Laundry, 42 Okl. 501, 141 Pac. 970- 
 "King V. Consol. Traction Co., 33 Pittsb. L. J. N. S. 138, i L. R. A. N. S. 
 
 215. 
 4'Coleman v. Pittsburgh, H. B. & N. C. St. Ry. Co. (Penn. 1916) ; 96 Atl. 
 
 1051. 
 
 902 
 
MEETING AT CROSSINGS § 1429 
 
 may assume up to the time that danger becomes imminent that it will 
 be turned off the track in time.** 
 
 § 1429. Crowding vehicle on to track. — Where a cart is crowded 
 toward a car track by an automoblie and hit by a street car carelessly 
 operated, the street car company is liable.*" 
 
 § 1430. Head-on collision — Last clear chance. — The last clear 
 chance doctrine does not apply where the negligence of both parties 
 continued down to the time of the accident as where it appears that 
 the plaintiff after realizing that the defendant's car was approaching 
 and that he could not get off the track in time to avoid an accident kept 
 on down the track meeting the car.°° 
 
 III. Meeting at Crossings. 
 
 § 1431. In general. 
 
 1432. The burden of proof. 
 
 1433- Care of motorists at crossing. 
 
 1434. Duty to look and listen. 
 
 1435. Must look just before crossing, 
 
 1436. Failure to look. 
 
 1437. Looking and failing to see. 
 
 1438. Where autoist had time to cross if car running at reasonable speed. 
 
 1439. Duty to stop before crossing tracks. 
 
 1440. backing across street car track. 
 
 1441. Driving out of garage on to street car track. 
 
 1442. Crossing on invitation of motorman. 
 
 1443. Stopping suddenly on signal by traffic officer. 
 
 1444. Motor vehicle stopping suddenly on track. 
 
 § 1431. In general. — When a street car and a vehicle meet at the 
 junction of two streets, the rule of the common law applies, and each 
 is to use due and reasonable care adapted to the circumstances and the 
 place. So also when a collision may be reasonably anticipated if each 
 keeps on as it is going. There is no inflexible rule as to what specific 
 acts of precaution are proper and necessary to be done or omitted. 
 The motorist should have his machine under control, be on the lookout, 
 
 *8Pantags v. Seattle Electric Co., 55 Wash. 453, 104 Pac. 629. 
 «Champlin v. Pawcatuck Valley St. R. Co., 33 R. I. 572; 82 Atl. 481, 5 N. C. C. 
 A. 787. 
 soBirmingham etc. Co. v. .ffiltna Accident etc. Co., 184 Ala. 601, 64 So. 44. 
 
 903 
 
§ 1432 STREET RAII^WAYS 
 
 and prepared to stop with reasonable diligence. °^ All these matters 
 furnish practical questions for the jury.°^ 
 
 Whether a street car ran into a truck is for the jury on conflicting 
 testimony.^* 
 
 § 1432. The burden of proof in these cases is the usual burden to 
 show due care on plaintiff's part and negligence on the part of the 
 defendant."* 
 
 § 1433. Care of motorists af crossing. — In some of the states 
 the rule of due care requires the same caution in approaching street 
 railway crossings that applies to those of steam railroads."" In Massa- 
 chusetts and the states generally, the rule in this regard is not so 
 stringent. In Finnick v. Boston & N. St. Ry.,"" Mr. Justice Loring 
 says: 
 
 "A person in approaching a street railway track is not bound 
 by any strict rule of law, as when he approaches a steam 
 railroad crossing, to stop and look and listen, or to take special 
 precautions in order to determine whether there is danger to 
 him in going upon the tracks. The distinction between the two 
 is settled in this commonwealth." Robbins v. Springfield St. 
 Ry., 165 Mass. 30; Hall v. West End St. Ry., 168 Mass. 461, 
 462 ; Donavan v. iynn & B. Railroad, 185 Mass. 533, 535. 
 
 But it is usually negligence for one to attempt to cross street car 
 tracks upon which a car is approaching."' 
 
 Where it is impossible to avoid a colUsion by use of a brake a chauf- 
 feur may be found careful in swinging his truck round to clear the 
 track."' 
 
 § 1434. Duty to look and listen. — While there is no absolute rule 
 of law requiring a traveler to look and listen before crossing the 
 
 "iGarrett v. People's Ry. Co., 6 Pennew. 29 (Del.), 64 Atl. 254. 
 
 B^DriscoU V. West End St. Ry., 159 Mass. 146, 34 N. E. 171 ; Scannell v. Boston 
 Elevated Ry., 176 Mass. 173, 57 N. E. 34i ; Omaha St. Ry. Co. v. Larson, 70 Neb. 
 591, 97 N. W. 824; Sliarpnack v. Des Moines City Ry., 115 N. W. Repr. 47S (la.). 
 
 esUnited Rys. etc. Co. v. State (Md. 1915) ; 96 Atl. 261. 
 
 s*Halloran v. Worcester St. Ry., 192 Mass. 104, 106, 78 N. E. 381. 
 
 osCampbell v. St. Louis, etc., Ry., 175 Mo. 173, 75 S. W. 86; Schulte v. New 
 Orleans St. Ry., 44 La. Ann. 509, 10 So. 811. 
 
 68190 Mass. 386, n N. E. soo. 
 
 "Mobile Light & R. Co. v. Hartwell, 50 South. 883, 163 Ala. "JT. 
 
 ssUnited Rys. etc. Co. v. State, (Md. 1915) ; 96 Atl. 261. 
 
 904 
 
MBBTING AT CROSSINGS § 1435 
 
 tracks of a street railway, still due care requires that he should look 
 and listen, particularly where the view of the approach to the crossing 
 is obstructed.^® 
 
 In Gregory v. Slaughter'" it was held that when an automobile 
 approached a street crossing and the operator saw that his view was 
 obstructed by a street car, he should have stopped his machine instead 
 of trying to go around the car ; in doing which he was brought "face 
 to face" with the pedestrian, at a distance too short to prevent the 
 collision, at the rate of speed at which he was moving. This was in 
 itself gross negligence, to the verge of recklessness. 
 
 Where street car tracks are on an intersecting street they are a signal 
 of danger and the law imposes on the driver of an automobile the duty 
 of looking and listening before going upon them,"^ but the failure of 
 an automobilist to look and listen for an approaching street car before 
 crossing the track is not always an act of negligence."^ 
 
 There is no absolute requirement that travelers must look and listen 
 on approaching street railroad tracks."' 
 
 It is however in most cases the duty of the operator of an automo- 
 bile to slow down his machine when approaching the street railway 
 tracks and to have it under complete control and to look and listen 
 for an approaching car. If he does not observe the poles and trolley 
 wires directly in front of him it is his own fault."* 
 
 § 1435. Must look just before crossing. — The duty to look be- 
 fore crossing a car track implies looking at the last moment before 
 crossing when it is possible to stop."' 
 
 It is the duty of a driver about to cross the car tracks to continue 
 his observation sufficiently after he first saw an approaching car to 
 enable him to verify the safety of his decision to cross or to revise it if 
 necessary to avoid a collision."" 
 
 BoKelly V. Wakefield etc. St. Ry., 175 Mass. 331, 56 N. E. 255. 
 e»l24 Ky. 345, 94 S. W. 247. 
 
 »iChappell V. United Rys. Co., 174 Mo. App. 126, 156 S. W. 819. 
 o^Bidwell v. Los Angeles etc. R. Co., 169 Cal. 780, 148 Pac. 197. 
 "'Oswald V. Utah Light & Ry. Co., 39 Utah 245, 117 Pac. 46. See Garrett 
 V. People's Ry. Co., 6 Pennew. (Del.) 29, 64 Atl. 254. 
 oiLindley v. Fries Mfg. & Power Co., 153 N. C. 394; 69 S. E. 274. 
 «5Frey v. Rhode Island Co., 37 R. L 96 ; 91 Atl. i. 
 ""Westover v. Grand Rapids Ry. Co., 180 Mich 373, 147 N. W. 630. 
 
 905 
 
§ 1436 STREET RAILWAYS 
 
 Evidence that the plaintiff stopped, looked and listened before cross- 
 ing a railroad track is not decisive on his contributory negligence but it 
 is for the jury to say whether his conduct thereafter was negligent. He 
 need not thereafter have stopped again on the tracks as it might be 
 more dangerous to do so than to go ahead.*" 
 
 It is not enough for a driver of an automobile to take his "last look" 
 through a curtain on approaching a street car track at a point 150 to 
 175 feet away from the track.*' 
 
 One is negligent in driving eighty feet at a slow rate towards the 
 track after seeing a street car without assuring herself by looking again 
 that she could do so safely.*" 
 
 Where a driver sitting on the right hand side of his car looks back 
 sixty feet before he turns to the left across the street car track and 
 does not look again although if he had looked he must have seen the 
 defendant's car approaching he is negligent as a matter of law.'^" 
 
 A driver of an automobile is guilty of contributory negligence when 
 he crosses a street car track although he sees a car coming in plain 
 sight and is hit although there are no intervening vehicles in the way. 
 He could and should have made sure of the safety of proceeding, by 
 looking just before entering upon the track, and at such a point 
 that he could stop his machine if necessary to avoid a collision.''^ 
 
 § 1436. Failure to look. — Although it is not necessarily negli- 
 gence per se to approach a street railway track without looking still 
 an operator of an automobile is negligent if he drives upon a street 
 car track without taking any precaution to see if a car is coming where 
 if he had looked he must have seen a car coming." 
 
 Plaintiff is guilty of negligence as a matter of law in riding his 
 motorcycle in a crouching position at a rate of twelve to fifteen 
 miles an hour without slackening speed approaching a corner where 
 he knew there were street car tracks without looking until he reached 
 the corner.''^ 
 
 "Witmer v. Bessemer & L. E. R. Co., 241 Pa. 112; 88 Atl. 314. 
 'SBowden v. Walla Walla Valley Ry. Co., 79 Wash. 184, 140 Pac. 549. 
 ^'Stevenson v. Detroit United Ry., 167 Mich. 45, 132 N. W. 451. 
 'oPuffei- V. Muskegon Traction & Lighting Co., 173 Mich 193, 139 N. W. 19. 
 TiColborne v. Detroit United Ry., 177 Mich. 139, 143 N. W. 32, 4 N. C. C. A. 
 
 383. 
 '^Bardshar v. Seattle Electric Co., 72 Wash. 200, 130 Pac. loi. 
 "Westcott V. Waterloo C. F. & N. Ry. Iowa 15s N. W. 255. 
 
 906 
 
MEETING AT CROSSINGS § 1437 
 
 A driver is guilty of negligence where he could have looked after 
 passing an obstruction caused by a building while yet in a place of 
 safety but failed to do so and was struck by a street car.'* 
 
 Where the plaintiff driving an automobile is looking behind him 
 as he approaches a street car track, and must have seen the approach- 
 ing car if he had looked, this is a plain case of negligence although he 
 testifies he heard no signal from the street car.'^^ 
 
 § 1437. Looking and failing to see. — Where the view down a 
 street car track is unobstructed for a long stretch and the plaintiff 
 claims he looked at a point ninety-two feet from the crossing but 
 saw no car and again looked when fifteen feet from the track and 
 brought his automobile to a stop six inches from the track he is 
 negligent. The duty to look implies the duty to see what is in plain 
 sight and to look continuously up to the danger point.'" 
 
 The plaintiff is as matter of law negligent where he attempts to 
 cross a street car track and runs into a street car where if he had 
 looked as he said he did he must have seen the car and could have 
 stopped. The court reverses the verdict on this issue.'' 
 
 The plaintiff is guilty of negligence in attempting to drive across 
 a street car track in the face of an approaching train of flat cars 
 pushed by an electric engine in the daytime, although she says she did 
 not see the flat cars as they were low and did not realize the engine 
 was moving.'* 
 
 § 1438. Where autoist had time to cross if car running at 
 reasonable speed. — The plaintiff driving across the car track may not 
 be guilty of contributory negligence when he saw the car and had 
 plenty of time to cross the track if the car had been approaching at a 
 reasonable speed.'* 
 
 Where the driver of an automobile observes a street car so far 
 away when he turns on the track that it would not overtake him if 
 
 '*NeiI V. Detroit United Ry., 180 Mich. S93, 152 N. W. 959. 
 
 '^Underwood v. Oskaloosa Traction & Light Co., 157 Iowa 352, 137 N. W. 
 933- 
 
 '"England v. Southwest Mo. R. Ck)., Mo. App. 1916, 180 S. W. 32. 
 
 "Batroot v. St. Paul City Ry. Co., 125 Minn. 308, 146 N. W. 1107. 
 ' '^Oswald V. Utah Light & Ry. Co., 39 Utah 245, 117 Pac. 46. 
 
 "Flannery v. Interurban Ry. Co., Iowa 153 N. W. 1027, 171 Iowa 238 ; Robbins 
 V. Dartmouth Street Ry., 203 Mass. 546, 89 N. E. 1039 ; Brandt v. New York Rys. 
 Co., 147 N. Y. S. 17, 85 Misc. 40. 
 
 907 
 
§ 1439 STREET RAILWAYS 
 
 run at reasonable speed he has a right to proceed along the track until 
 warned by a signal that the motorman desired to pass him. An auto- 
 mobile is itself a speedy and, if negligently handled, a dangerous ve- 
 hicle and a rule that would require its driver to divide his attention 
 between the way in front and the way behind would be senseless and 
 dangerous in its consequences.'" 
 
 The plaintiff driving an automobile may be careful where he sees 
 the street car approaching a block away and his view is then obstructed 
 by another car where there is no evidence that he knew that the car 
 was approaching at an excessive rate of speed and where if it was 
 going at a moderate pace he would have had plenty of time to cross 
 the track.*"^ 
 
 § 1439. Duty to stop before crossing tracks. — It is not the duty 
 of an automobile driver to come to a full stop before attempting to 
 cross a street railway track where trains are passing,*? unless there is 
 some circumstance rendering that prudent,'^ but on the issue of con- 
 tributory negligence the jury may consider the failure of a driver of an 
 automobile to stop it before going upon street car tracks.'* 
 
 § 1440. Backing across street car track. — One backing an auto- 
 mobile out of a garage across a street car track is negligent if he does 
 not look to see if he has a clear track. The fact that the street car 
 line was there imposed on him the duty to look. It is no defence that 
 his attention was needed to manage the automobile.*'' 
 
 But it is not negligence to stop an automobile and attempt to back 
 it off a street car track when the approach of a street car at high speed 
 is discovered when it appears that to suddenly have 'attempted to in- 
 crease its speed and cross the track would have resulted in stalling the 
 engine and the automobile is stopped in its own length.*" 
 
 The case of Birch v. Athol & Orange St. Ry. Co.,*' was one where 
 the driver backed his automobile upon a street railway track and in 
 
 soBruening v. Metropolitan St. Ry. Co., Mo. 168 S. W. 248, i8o Mo. App. 434. 
 "Day V. Duluth St. Ry. Co., 121 Minn. 44s, 141 N. W. 795- 
 82St. Louis & S. F. R. Co. V. Model Laundry, 42 Okl. 501, 141 Pac. 970. 
 ssFarnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233. 
 s*Chappell V. United Rys. Co., 174 Mo. App. 126, 156 S. W. 819. 
 s^Holmes v. Sandpoint & I. R. Co., 25 Idaho 345, 137 Pac. 532. 
 soByerley v. Metropolitan St. Ry. Co., 172 Mo. App. 470, 158 S. W. 4I3- 
 "198 Mass. 257, 84 N. E. 310- 
 
 908 
 
MEETING AT CROSSINGS § I44I 
 
 SO doing collided with an electric car. The Supreme Court, by Mr. 
 Justice Sheldon, say : 
 
 "Even if it appeared that the plaintiff had looked carefully 
 and that the defendant's car had not then been in sight, but 
 had come up later, could it be said to have been proper care 
 for the plaintiff to run his automobile backward in the main 
 street and square of so large a town as Orange, upon an elec- 
 tric car track, without looking after he had started, especially 
 when he expected a car to come. This was certainly as negli- 
 gent as the conduct of a foot traveller, or of the driver of an 
 ordinary wagon; who, without carefully looking, goes in front 
 of an electric car upon a crowded street."^^ 
 
 § 144 1. Driving out of garage on to street car track. — A very 
 dangerous situation calling for the exercise of a high degree of care 
 arises where the driver of an automobile attempts to drive it out of a 
 garage across a street car track. Common prudence dictates that he 
 should make sure that the track is clear before doing so. 
 
 It is difficult to see why one is not guilty of contributory negligence 
 who drives a car out of a garage and on to a street car track although 
 his view is obstructed by another automobile when he might by turning 
 to one side have gone far enough to obtain a full view of the track 
 before undertaking to cross it.^" 
 
 Where the plaintiff's automobile is backing out of a garage and on 
 to a street railway track evidence that the plaintiff expected the motor- 
 man to stop his car and his opinion that he had reasonable cause to 
 entertain such an expectation is immaterial where the plaintiff did 
 and omitted to do nothing in reliance on the motorman's conduct.'" 
 
 § 1442. Crossing on invitation of motorman. — It appeared in a 
 New York. case that the railway was double tracked. On one of the 
 tracks the cars were stalled. On the other they were not. Plaintiff 
 passed between two of the stalled cars on the invitation of the motor- 
 man, and came in collision with a moving car on the other track. 
 Plaintiff's son, who was operating the automobile stood up in his ma- 
 chine before starting to cross, and saw the moving car 75 feet away, 
 nevertheless, he made the attempt. 
 
 ^'Italics by the author of this book. 
 
 «9Austin St. Ry. Co. v. Heflin, Tex. Civ. App. 158 S. W. 1040. 
 
 9»Gadbois v. Bay State Ry. Co., 216 Mass 188; 103 N. S. 294. 
 
 909 
 
§ 1443 STREBT RAII<WAYS 
 
 Held, (i) The act of the motorman of the stalled car in inviting 
 plaintiff to pass through, was not negligence. It went no farther than 
 to intimate that there was room between him and the car ahead and 
 that he would wait for plaintiff to go by him; 
 
 (2) The act of plaintiff's son, in starting after seeing the approach- 
 ing car on the other track, was certainly a higher degree of negligence 
 than could be imputed to the motorman of the stalled car."^ 
 
 § 1443. Car stopping suddenly on signal by traffic officer. — 
 Where a street car is crossing a street and the traffic policeman signals 
 it to stop it should stop although part way across the street although an 
 automobile then runs into it even if the accident would not have 
 happened if the car had gone on. The proximate cause of the accident 
 was the reckless running of the automobile and the railway company 
 was in no way responsible for it.'^ 
 
 § 1444. Motor vehicle stopping suddenly on track. — One com- 
 mon class of accidents occurs where a motor vehicle crossing the track 
 is suddenly stopped and an electric car collides with it because the 
 motorman has relied on its continued forward movement. In such 
 cases the motorman will usually be found negligent as he should have 
 his car under such control as to avoid such an accident. 
 
 The motorman of an electric car may be found negligent where an 
 auto truck is approaching the track at such speed that if both the 
 electric car and the truck kept at the same speed the truck would 
 cross in safety but where the truck was forced to stop on the track due 
 to another vehicle suddenly turning in front of it and the electric car 
 ran into it. It was the duty of the motorman to so drive that he would 
 be in control of his car in this new situation.*' 
 
 The jury may find the motorman of an electric car guilty of negli- 
 gence when he approaches an automobile crossing the track at a speed 
 of fifteen miles an hour and does not slow up when he sees the auto- 
 mobile on the track although he calculated the automobile would get 
 over safely when the automobile is forced to stop to avoid being hit 
 by another automobile passing in front of it. The motorman had no 
 right to assume that the plaintiff would get out of the way.'* 
 
 siHirsch v. Interurban St. Ry., 94 N. Y. Suppl. 330, App. Term, 1905. 
 s^Louisville Ry. Co. v. Wehner, 153 Ky. 190, 154 S. W. 1087. 
 »8Anderson v. Puget Sound Traction, Etc., Co. (Wash. 1916), iS4 Pac I3S- 
 »*Flack V. Metropolitan St. Ry. Co., 162 Mo. App. 650, 145 S. W. no. 
 
 910 
 
managi;ment of street car § 1445 
 
 The plaintiff driving a truck who stops suddenly on the car tracks 
 to allow a street car to pass on the further track may recover if struck 
 by another car on the nearer track on evidence that the motorman was 
 driving his car at a high rate of speed and did not have it under con- 
 trol.^'' 
 
 The plaintiff may recover on evidence that he stopped his automobile 
 on the car track on seeing the defendant's street car approaching rapidly 
 and attempted to back off when he killed his engine and the motorman 
 had so lost control of his car that he could not stop.'" 
 
 A verdict for the plaintiff was sustained where there was evidence 
 that he stopped on passing an obstruction to his view while crossing 
 a street railway track and saw no car, then drove on and finding a car 
 upon him stopped and attempted to back when the car went forward 
 instead of back and he was hit by an electric car travelling fifty miles 
 an hour.^' 
 
 But the motorman on a street car is not negligent where he sees 
 an automobile approaching a crossing at such speed that if it con- 
 tinues it will cross the track and be one hundred feet beyond before 
 the car will reach it where the automobile suddenly stops within six 
 inches of the track.*' 
 
 A passenger may be negligent in remaining in an automobile where 
 its engine is stalled while an electric car is bearing down upon it."" 
 
 IV. Managbment of Strbbt Car. 
 
 § 1445. Degree of care demanded of motormen. 
 
 1446. Street car speed. 
 
 1447. Speed where vision obstructed by frost. 
 
 1448. Car increasing speed on slippery rails. 
 
 1449. Ordinances. 
 
 1450. Sounding the gong. 
 
 1451. Autoist relying on Statutory signal from street car. 
 
 1452. Failure of defendant's servants not operating car to give warning. 
 
 1453. Headlights on street car. 
 
 1454. Absence of conductor. 
 
 1455. Motorman conversing. 
 
 ^^Lawrence v. Sioux City, Iowa 1916, 154 N. W. 494. 
 "'Joyner v. Interurban Ry. Co., Iowa 154 N. W. 936, 1916. 
 "'Ivittlewood v. Detroit United Ry. Co. (Mich. 1916), 155 N. W. 698. 
 "'England v. Southwest Missouri R. Co., Mo. App. 1916, 180 S. W. 32. 
 ""Lawrence v. Fitchburg etc. Ry. Co., 201 Mass. 489, 87 N. E. 898. 
 
 911 
 
§ 1445 STREET RAILWAYS 
 
 1456. Street car backing. 
 
 1457. End of street car swinging across road. 
 
 1458. Street car conductors on street or running board. 
 
 1459. Passenger standing on running board or bumper of street car. 
 
 § 1445. Degree of care demanded o£ motorman. — While a rail- 
 way company is held to the highest degree of care, this principle is 
 applicable only in its conduct towards its passengers. Towards other 
 travelers on the highway, it owes the reciprocal obligation of due 
 care.^°" And in this respect one of the essentials is to keep a proper 
 lookout ahead under all circumstances.^ 
 
 It is error to charge that the motorman of an electric car should 
 have used a high degree of care.^ 
 
 § 1446, Street car speed.' — Where there is an ordinance regu- 
 lating the speed of street cars, "all persons traveling in the street would 
 have a right to expect the ordinance to be observed, and to govern 
 themselves accordingly."* In any event, speed must be reasonable 
 according to the circumstances.^ 
 
 Evidence that a street car is going at a high rate of speed, that it 
 did not slow up and gave no signal as it approached an intersecting 
 street is evidence of negligence." 
 
 A street car may be negligently operated where it is moving at an 
 excessive rate of speed so that the motorman is unable to stop when 
 the plaintiff's automobile runs on the track.'' 
 
 Negligence in the motorman of a street railway company is suf- 
 ficiently shown by allegations that it was run at a speed of over thirty 
 miles an hour without sounding a gong over a crossing without keeping 
 the car under control.* 
 
 looRubinovitch v. Boston El. Ry., 192 Mass. 119, ^^ N. E. 895. 
 
 iGarfield v. Hartford etc. St. Ry. Co., 79 Conn. 458, 65 Atl. 5sfi; Campbell v. St. 
 Louis Transit Co., 121 Mo. App. 406, 99 S. W. 58. 
 
 2Clark V. Public Service R. Co., 83 N. J. L. 319; 85 Atl. 189. 
 
 ^See §§ 341, 423 et seq., and Appendix A. 
 
 *Wright V. Maiden etc. Ry., 86 Mass. 290. 
 
 sRobbins v. Dartmouth etc. St. Ry., 203 Mass. 546, 89 N. E. 1039; Campbell v. 
 St. Louis Transit Co., 121 Mo. App. 406, 99 S. W. 58. 
 
 "Day V. Duluth St. Ry. Co., 121 Minn. 445, 141 N. W. 795- 
 
 'Hermann v. Rhode Island Co., 36 R. I. 447 ; 9° Atl. 813. 
 
 ^Indiana Union Traction Co. v. Love, 180 Ind. 442; 99 N. E. 1005; Brandt 
 v. New York Rys. Co., 147 N. Y. S. 17, 85 Misc. 40, thirty miles an hour when au- 
 tomobile is in sight is excessive. See Flack v. Metropolitan St. Ry. Co., 162 Mo. 
 
 912 
 
MANAGEMENT OF STREET CAR § 1447 
 
 Furthermore the fact that a motorman of an electric car used every 
 efifort to stop his car after discovering the approach of plaintiff's auto- 
 mobile is no defence where he was guilty of prior negligence in run- 
 ning it at an unlawful speed and thereby disabled himself from stopping 
 it.« 
 
 So where a street railway company was operating its street car 
 at an excessive speed without signals it can be found responsible for 
 an injury to a guest in an automobile with which it collides although 
 the negligence of the driver may be found as precipitating the dis- 
 aster." 
 
 § 1447. Speed where vision obstructed by frost. — ^A motorman 
 of a street railway is negligent where he runs his car at 30 miles an 
 hour with his view obstructed by frost on the glass in front of him 
 where snowdrifts had compelled drivers of vehicles to travel on the 
 track at the place of the collision and they could not turn off on either 
 side.^^ 
 
 § 1448. Car increasing speed on slippery rails. — Plaintiff 
 driving a truck may be found not negligent on evidence that he saw the 
 electric car coming down a hill but there was no sand on the tracks 
 and it increased its speed on the slippery rails as the plaintiff had 
 never known a car to do at that point before.^^ 
 
 § 1449. Ordinances regulating speed and stopping of street 
 cars. — ^An ordinance regulating the speed of vehicles propeled by 
 electricity, gasolene or steam does not apply to an electric car running 
 on rails.^^ 
 
 So an ordinance requiring interurban cars to stop within a certain 
 number of blocks does not apply to a car carrying freight running to 
 unload it.^* 
 
 App. 650, 14s S. W. no, fifteen miles an hour excessive approaching an intersect- 
 ing street. 
 
 'Chappell V. United Rys Co., 174 Mo. App. 126, 156 S. W. 819. 
 
 i"Lininger v. San Francisco etc. R. Co., 18 Cal. App. 411, 123 Pac. 235. 
 
 iiRichardson v. Haverhill & A. St. Ry. Co., 218 Mass. 52 ; 105 N. E. 221. 
 
 i^Harmel Co. v. Minneapolis St. Ry. Co., 130 Minn. 469, 153 N. W. 867. 
 
 ispankey v. Little Rock Ry. & Electric Co., Arkansas 1915, 174 S. W. 1170. 
 
 "Texas Traction Co. v. Wiley, Tex. Civ. App. 164 S. W. 1028. 
 
 913 
 58 
 
§ 1450 STREET RAILWAYS 
 
 A speed of over six miles an hour for a train of cars on a street 
 may be found negligent when six miles an hour is the limit imposed 
 by ordinance.^^ 
 
 § 1450. Sounding the gong. — In using the gong, a motorman is 
 under the obligation of due care and precaution, but where no city 
 ordinance requiring a gong to be sounded is offered in evidence, fail- 
 ure to ring it is not negligence per se^^ and whether the gong or bell on 
 a street car was sounded is immaterial if the noise made by the car 
 sufficiently apprised plaintiff of its approach.^^ 
 
 Evidence that an approaching street car gave no warning is ad- 
 missible on the question of contributory negligence of the autoist^' or 
 to show negligence of the motorman.^' 
 
 The motorist may rely on the sounding of a gong at a street inter- 
 section as required by law.^" 
 
 § 145 1. Autoist relying on statutory signal from street car.— 
 Where the ordinance forbids street cars from passing at the inter- 
 section of two streets and requires them to sound a gong on approach- 
 ing the intersection of two streets a driver of an automobile has a right 
 to assume that these requirements will be followed and may be found 
 careful in turning behind a street' car at an intersection and turning to 
 his left when he is hit by a car coming in the opposite direction at high 
 speed without sounding a gong. He was on a congested street requir- 
 ing quick decision and his stopping might further congest traffic or 
 might result in another running into his automobile.^^ 
 
 § 1452. Failure of defendant's servants not operating car to 
 give warning. — The defendant is entitled to have the jury charged 
 that the failure of its servants or agents who were not operating its 
 
 i^St. Louis & S. F. R. Co., v. Model Laundry, 42 Okl. 501, 141 Pac. 970. 
 
 I'McCreery v. United Rys. Co., 221 Mo. 18, 120 S. W. 24. 
 
 I'Hedlund v. Minneapolis St. Ry. Co., 120 Minn. 319, 139 N. W. 630. 
 
 I'Flannery v. Interurban Ry. Co., Iowa 153 N. W. 1027, 171 Iowa 238. 
 
 "Phillips V. Denver etc. Co., 53 Colo. 458, 128 Pac. 460, 7 N. C. C. A. 487; 
 Union Traction Co. v. Howard, 173 Ind. 335, 90 N. E. 764, failure to sound gong 
 must be definitely proved ; .Indiana Union Traction Co. v. Love, 180 Ind. 442, 99 
 N. E. lOOS ; Robinson v. Springfield St. Ry. Co., 211 Mass. 483, 98 N. E. 576. 
 
 soPhillips V. Denver City Tramway Co., S3 Colo. 458, 128 Pac. 460, 7 N. C. C. 
 A. 487. 
 
 21 Phillips V. Denver City Tramway Co., 53 Colo. 458, 128 Pac. 460 ; 7 N. C. 
 C. A. 487. 
 
 914 
 
MANAGEMENT OF STREET CAR § 1453 
 
 car to warn those who were operating it of the peril is not chargeable 
 to the defendant.^" 
 
 § 1453. Headlights on street car. — It may be negligence for a 
 street car motorman to fail to turn off his searchlight where it dazzles 
 the driver of an automobile so that he runs into a trolley pole on a 
 narrow road.^^ 
 
 Where the plaintiff is hit by a Hghted street car it is immaterial 
 whether its head light is lighted or not.^* 
 
 § 1454. Absence of conductor. — An ordinance requiring street cars 
 at crossings to be in charge of a conductor was not intended solely for 
 the protection of passengers but also of travelers on the road and 
 therefore applied where the plaintiff's automobile is in collision with 
 freight cars.^' 
 
 § 1455. Motorman conversing. — A motorman of an electric car 
 who engages in a heated verbal controversy with a teamster and does 
 not look ahead when by so doing he would have seen that an automobile 
 is about to cross the track is negligent.^' 
 
 § 1456. Street car backing. — The plaintiff on a motorcycle was 
 not guilty of contributory negligence as a matter of law in riding at 
 a speed of eight miles an hour when he is suddenly confronted with a 
 street car backing over a crossover without the customary warning 
 signal where the car backs out from behind another standing car.^^ 
 
 The court distinguishes this case from Patterson v. Detroit United 
 R. Co./' as here the plaintiff could not turn aside without running into 
 the curb on one side or the other car on the other. He also relied on a 
 flagman here to give a signal.^' 
 
 § 1457. End of street car swinging across road. — A verdict was 
 directed for the defendant where a motorcyclist ran into the front 
 fender of an electric car as it started to swing to make a turn.'" 
 
 22Texas Traction Co. v. Wiley, Tex. Civ. App. 164 S. W. 1030. 
 
 2sGarfield v. Hartford etc. Ry. Co., 79 Conn. 458, 65 Atl. 598, 80 Conn. 260, 
 67 Atl. 890. 
 
 'i^Colbome v. Detroit United Ry. Co., 177 Mich. 139, 143 N. W. 32, 4 N. C. 
 C. A. 383. 
 
 250swald V. Utah Light & Ry. Co., 39 Utah 245, 117 Pac. 46. 
 
 ^^McFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 652, 143 S. W. 884. 
 
 "Tiley V. Detroit United Ry. Co., Mich 155 N. W. 728. 
 
 28iS3 N. W. 670. 
 
 2«Tiley v. Detroit United Ry. Co., Mich. 1916, 155 N. W. 728. 
 
 soPatterson v. Detroit United Ry., Mich. 1916, 153 N. W. 670. 
 
 91S 
 
§ I4S8 STREET EAII<WAYS 
 
 In this case the autoist recovered because the street car split a 
 switch and the rear end swung out into her automobile.^^ 
 
 § 1458. Street car conductors on street or running board. — 
 The conductor of a street car has a right if he chooses to alight at 
 the front end of his car and use the street as a means of reaching 
 the rear platform, and to rely, upon it that drivers of other vehicles 
 will exercise reasonable care to avoid injuring him.^^ 
 
 He also has a right to stand on the running board collecting fares.^' 
 
 § 1459. Passenger standing on running board or bumper of 
 street car. — In case of a collision between an automobile and a street 
 car a passenger who stands on the running board when there are seats 
 he can occupy is negligent.^* 
 
 The plaintiff is not guilty of negligence in riding on a bumper of 
 a street car at its rear when it is crowded when he is hit by the de- 
 fendant's automobile. The defendant had no right as against the plain- 
 tiff to claim that he should not have been allowed there.'' 
 
 An automobilist is bound to see and avoid hitting a passenger riding 
 on the rear buriiper of a street car although the car stops suddenly.^" 
 
 '^Brown v. Detroit United Ry., 179 Mich. 404, 146 N. W. 278, 7 N. C. C. A. 460. 
 s^Caesar v. Fifth Ave. Stage Co., 4S N. Y. Misc. 331, 90 N. Y. S. 359. 
 5*Dudley v. Kingsbury, 199 Mass. 258, 8s N. E. 76. 
 
 s*Ward V. International Ry. Co., 206 N. Y. 83, 99 N. E. 262. Ann. Cas. 1914 
 A. 1 170. 
 35Smith V. Heibel, iS7 Mo. App. 177, 137 S. W. 70, 5 N. C. C. A. 107. 
 s'Smith V. Heibel, 157 Mo. App. 177, 137 S. W. 70, 5 N. C. C. A. 107. 
 
 916 
 
XLVII. 
 
 CRIMINAL NEGLIGENCE. 
 I. In General. 
 
 § 1460. Scope and treatment. 
 
 1461. Division of the subject. 
 
 1462. The term "criminal negligence." 
 
 1463. Rules of evidence in criminal cases. 
 
 1464. Competency and skill of operators at common law. 
 
 § 1460. Scope and Treatment. — The particular branch of the law 
 of negligence to which this chapter is devoted is considered without 
 special regard to the statutes of any particular state, although occa- 
 sional reference is made to such statutes when found to be advantage- 
 ous. 
 
 In presenting the criminal law of negligence so much in the language 
 of Dr. Wharton, no apology is deemed necessary, only a word of 
 explanation. The eminence of Dr. Wharton as an authority is beyond 
 question and his books are generally accessible. He has written upon 
 every one of the topics the principles df which this chapter applies to 
 motor vehicles, and in drawing from him the reader is saved the in- 
 convenience of a wide range of reference among text writers, none of 
 whom differ in any essential matter from the views which he expresses. 
 Furthermore, the law of criminal negligence is nowhere presented more 
 cogently or concisely. 
 
 § 1461. Division o£ the subject. — As has been already observed 
 in the general review of negligence, those of a so-called "criminal" 
 character are resolved into two forms : ( i ) Acts or omissions not in 
 themselves wrongful, but which are commanded or prohibited by 
 statute for the public safety or convenience. Elsewhere^ these have 
 been noted as crimes mala prohibita.^ 
 
 ^See § 476 et seq. 
 
 2Com. V. Shearman, 191 Mass. 439, 44°, 78 N. E. 98. 
 
 917 
 
§ 1462 CSIMINAI N£GI,IGfiNCE 
 
 (2) Acts or omissions wrong in themselves (mala in se), which at 
 common law, and irrespective of any statute, may be the subject of 
 indictment and criminal prosecution. 
 
 § 1462. The term "criminal negligence" is often used as synony- 
 mous with "gross negligence." It has been described, as being such 
 negligence as would amount to a flagrant and reckless disregard of 
 one's own safety, and amount to a wilful indifference to the injury 
 liable to follow.' 
 
 Dr. Wharton adds to this description, the element of the violation 
 of a duty imposed by law.* 
 
 All the authorities offer many discriminations into which it can 
 serve no real purpose for us to enter, the object being to point out the 
 signboards on the motorist's road to safe operation, not to map the by- 
 paths that scatter through the brambles of carelessness.' 
 
 § 1463. Rules of evidence in criminal cases. — As appeared in 
 the rules of evidence set out in the chapter on "Speed Limitations,'" 
 the burden of proving the charge is upon, and always remains with 
 the side that holds the affirmative of the issue. In criminal cases the 
 state as prosecutor, must, in order to convict, make out its case be- 
 yond a "reasonable doubt" of the defendant's guilt.'' 
 
 It is familiar law that the accused is presumed innocent until his 
 guilt is established. In the chapter last referred to it appeared how 
 the defendant might by his own acts in a motor vehicle case, change 
 this presumption of innocence to a presumption of guilt ;^ and in the 
 chapter on the Law of the Road, it was shown that the violation of a 
 statute or ordinance contemporaneously with the occurrence of an 
 injury, raises a presumption against the offender, which though not con- 
 clusive, must be rebutted. It is fundamental law that until a prima 
 
 sOmaha & R. V. R. v. Cholette, 33 Neb. 146, 49 N. W. 11 14. 
 
 *i Wharton Criminal Law, loth ed., sec. 329. 
 
 sNoTS. — The special remedy for negligence provided by the Massachusetts Re- 
 vised Laws, is not included in this chapter, because it is, in terms, expressly de- 
 clared to be available "in an action of tort;," and, hence, falls within the scope 
 of the chapter on Actionable Negligence. 
 
 Revised Laws, chap. 207, sec. 30, as amended by chapter 375, Laws of 1907. 
 
 8§ 423 et seq. 
 
 'Com. V. McKie, 67 Mass. 61 ; Wharton's Criminal Evidence, 9th ed., sec. 330. 
 For a definition of "reasonable doubt," see Com. v. Webster, 59 Mass. 320. 
 
 8§ 381. 
 
 918 
 
IN GENERAL § 1464 
 
 facie case is made against him, the accused is called upon to do no 
 more than to interpose a plea of "not guilty." Thereafter it is incum- 
 bent on him to explain away the case so made, or to excuse his 
 offence.^ 
 
 Attention was also directed in Chapter XIX to certain provisions 
 of the motor vehicle laws, which relieve the State of much of its bur- 
 den, and cast it upon the defendant to introduce evidence in exculpa- 
 tion that would ordinarily devolve upon the prosecution. 
 
 § 1464. Competency and skill of operators at common law. — 
 In the chapter on "Chauffeurs"^" it was pointed out that the driver 
 must be competent and skilful. Attention was then called to the 
 precautions adopted by the legislatures of the different states that only 
 persons who, upon thorough examination have successfully demon- 
 strated their qualification, shall be permitted to operate motor vehicles. 
 The principle of the common law is the same as that involved in the 
 statute. In this regard the United States Supreme Court, in Steam- 
 boat New World v. King,^^ by Mr. Justice Curtis, say concerning 
 steamboat engineers : 
 
 "That the proper management of the boiler and machinery 
 of a steamboat requires skill must be admitted. Indeed by the 
 Act of Congress of August 30, 1852, great and unusual precau- 
 tions are taken to exclude from this employment all persons 
 who do not possess it. That an omission to exercise this skill 
 vigilantly and faithfully, endangers, to a frightful extent, the 
 lives and limbs of great numbers of human beings, the awful 
 destruction of life in our country by explosions of steam boilers 
 but too painfully proves. We do not hesitate therefore to 
 declare that negligence in the care or management of such 
 boilers, for which skill is necessary, the probable consequence 
 of which negligence is injury and loss of the most disastrous 
 kind, is to be deemed culpable negligence." 
 
 In Com. V. Pierce,^^ on the subject of competency, the trial judge 
 instructed the jury, as follows : 
 
 "A man is not to be convicted of manslaughter merely be- 
 cause of his ignorance. His ignorance is only important as 
 
 »Wharton's Criminal Evid'cnce, 9th ed., sec. 322; Com. v. McKie, 67 Mass. 61. 
 
 "Chapter XIII. 
 
 "16 How. 475, U. S. S. C. 
 
 12138 Mass. 165. 
 
 919 
 
§ I4t)4 CRIMINAI, NEGI,IGENCS 
 
 bearing upon the question whether his conduct * * * was 
 marked by foolhardy presumption or gross and reckless care- 
 lessness. The defendant * * * is to be tried by no other or 
 higher standard of skill or learning than that which he neces- 
 sarily assumed." 
 
 The foregoing was said in a case where the accused was charged 
 with improper medical treatment wherefrom the patient died. He 
 was convicted of manslaughter. In affirming the judgment, the Su- 
 preme Court, by Mr. Justice Holmes, say : 
 
 "But knowledge of the dangerous character of a thing is 
 only the equivalent of foresight of the way in which it will 
 act, * * * If the danger is due to the specific tendencies of 
 the individual thing, and is not characteristic of the class to 
 which it belongs, * * * a person to be made liable must have 
 notice of some past experience, * * *_ gut if t^g dangers 
 are characteristic of the class according to common experience, 
 then he who uses an article of the class * * * cannot escape 
 on the ground that he had less than common experience. Com- 
 mon experience is necessary to the man of ordinary prudence. 
 * * * The jury have found that" (the act of the accused) 
 "was applied as the result of foolhardy presumption or gross 
 negligence, and that is enough." 
 
 Wharton on Homicide,'^ says: 
 
 "Those conducting or driving a locomotive engine are bound 
 to show in their calling the diligence that good and prudent 
 officers in such departments are accustomed to show. If from 
 lack of such diligence, death ensues either to a passenger in 
 the train or a traveler on the road^^ the officer guilty of the 
 neglect is liable for manslaughter." * * * "Nor is it neces- 
 sary in this class of cases to make out that the negligent act 
 was wilful. * * * A person in charge of a railroad train or 
 cars, however, cannot be held guilty of manslaughter where he 
 exercised due care and caution, since his act in running or man- 
 aging the cars is not an unlawful one." 
 
 The analogy between locomotive engineers and chauffeurs, in many 
 respects, is very close and may be extended to motormen of street- 
 
 i'3d ed., sec. 466. 
 
 i*The italics are by the author of this book. 
 
 920 
 
INTENT, MALICE AND MOTIVE § I465 
 
 cars.^" All three have powerful mechanicisms in their charge, and 
 control the motive power, which they may start and stop at will. 
 Often each has the general care of his vehicle while in use and is 
 expected to make such ordinary repairs as will keep it in proper con- 
 dition. There is, however, this difference, the locomotive and street 
 car in operation, are confined to rails upon a specially prepared road 
 bed, whereas the driver of a motor vehicle has the entire highway for 
 his sphere of action, being liable at any moment and in any place to 
 meet travelers on foot or in other vehicles. The engine driver's at- 
 tention is concentrated on his train and track, while the chauffeur's 
 is distracted by constantly changing conditions. In a crowded thor- 
 oughfare the possibility of injury to his vehicle and passengers from 
 the vagaries of fellow-travelers, is ever present, complicating the mo- 
 torist's duty to avoid inflicting harm himself. It is only by being 
 .always alert, by the possession of sound judgment, and the ever ready 
 skill to do the right thing exactly at the right time, that calamity is 
 averted. For these reasons the law requires special preparation and 
 training for the chauffeur, as it does for the engineer, demanding the 
 same high degree of competency and prudence in each, and imposing 
 severe penalties for the absence of either when disaster results. 
 
 In Crofts v. Waterhouse," it was said by Best, C. J., concerning the 
 driver of a coach : 
 
 "The coachman must have competent skill and use that skill 
 with diligence."^' 
 
 II. Intent, Malice and Motivb. 
 
 § 1465. In general. 
 
 1466. Intent presumed from acts. 
 
 1467. Malicious mischief. 
 
 1468. Implied malice. 
 
 1469. Malice in mala prohibita. 
 
 1470. Malice in mala in se. 
 
 1471. Where particular result improbable. 
 
 "See § 251. 
 
 1B3 Bing 321 (Eng.), quoted in Ingalls v. Bills, 50 Mass. i, 15. 
 "See also Com. v. Kuhn, i Pittsburgh (Pa.) 13 1 Weil v. Kreutzer, 134 Ky. 
 563, 121 S. W. 471 ; Ingraham v. Stockamore, 68 Misc. 114, 118 N. Y. Supp. 399- 
 
 921 
 
§ 1465 CRIMINAI, NEGLIGENCE 
 
 § 1465. In general. — In the chapter on Speed Limitations,^' refer- 
 ence was made to intent, malice and motive as being conspicuous ele- 
 ments in crimes, or, as Dr. Wharton (on Homicide, 3d ed. sec. 447) 
 gays, "the essential ingredient." A brief consideration of them at this 
 time, will serve for a better understanding of the position they occupy in 
 motor vehicle cases. 
 
 Intent is defined in the law as "a state of mind" with which an act 
 is done. Whatever may be said of it in metaphysics, in jurisprudence 
 it denotes "as much an act as is a physical act performed. The one 
 is the exertion of the power of the mind, the other the exertion of 
 the power of the body.^® 
 
 The word "Motive" is frequently used as synonymous with intent, 
 and sometimes it is spoken of as "Malice," but this last is employed 
 rather to characterize the motive or intent. Motive and intent are not 
 identical expressions. The former is the impulse, the intent is the pur- 
 pose and "malice" describes both as wicked or wrongful. As ordi- 
 narily used, however, these distinctions are not very clearly observed. 
 Malice may be either "express" or "implied." Express malice is 
 malice in fact. Implied malice is malice in law, by which is meant 
 "an intent of the mind and heart." It is a fact to be ascertained by 
 the jury from all the facts of the case. It is seldom that malice in 
 fact appears, perhaps only when the accused pleads guilty.^" 
 
 § 1466. Intent presumed from acts. — It is fundamental, that a 
 person is presumed to intend the consequences of his wrongful acts.^^ 
 
 It is not to be overlooked that intent is presumed to be present in 
 cases of criminal negligence. In this regard it is said that "the dif- 
 ference between intent and negligence, in a legal sense, is ordinarily 
 nothing but the difference in the probability, under the circumstances 
 known to the actor and according to common experience, that a cer- 
 tain consequence or class of consequences will follow from a certain 
 act." 
 
 "See § 424A. 
 
 "4 Words & Phrases Jud. Def. 3686. 
 
 20For further consideration of "malice'' in criminal negligence see § 424A; S 
 Words & Phrases Jud. Def. 4299; Com. v. York, 50 Mass. 104. 
 
 213 Greenleaf on Evidence, sec. 13, 14, 25 ; Com. v. York, 50 Mass. 103 ; Com. 
 v. Webster, S9 Mass. 305; Com. v. Temple, 80 Mass. 69, 78. 
 
 922 
 
INTENT, MAUCE AND MOTIVE § I466 
 
 White V. Duggan, 140 Mass. 18; Aiken v. Holyoke St. Ry., 184 
 Mass. 269, 271 ; Banks v. Braman, 188 Mass. 367, 74 N. E. 594, quoted 
 elsewhere.^^ 
 
 In Com. V. Temple,^^ Chief Justice Shaw says : 
 
 "Nor is express malice, a disposition or desire to cause 
 damage to another, as in case of malicious mischief, necessary 
 to the completion of the offence. * * * /^^^^ ^s every man 
 must be presumed to intend all the necessary, natural and ordi- 
 nary consequences of his own acts, it is a wilful and intended 
 wrong; it is malice — a thing done animo intendi." 
 
 These observations were made in a case where the driver of a horse 
 drawn vehicle obstructed a street car. In this connection the Chief 
 Justice also says : 
 
 "If for his own benefit he violates the rights of others, and 
 if this consists in the violation of a public right, indictment is 
 the appropriate remedy for its vindication and redress." 
 
 And again it is said (p. 79) : 
 
 "If a wilful intent to follow his own convenience, in viola- 
 tion of the equal rights of others, exists, it is sufficient, and no 
 other malicious motive need be proved." 
 
 In Aiken v. Holyoke St. Ry.,^* Chief Justice Knowlton remarks 
 (p. 271): 
 
 "The law is regardful of human life and personal safety, 
 and if one is wantonly reckless in exposing others to danger, 
 it holds him to have intended the natural consequence of his 
 act, and treats him as guilty of a wilful and intentional wrong. 
 It is no defence 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. In these cases of personal in- 
 jury there is a constructive intention as to the consequences 
 which, entering into the wilful intentional act, the law imputes 
 to the offender, and in this way a charge which otherwise would 
 be mere neghgence, becomes by reason of a reckless disregard 
 
 «See §§ 9S6, 1S18. 
 238o Mass. 69, 78. 
 2*184 Mass. 269, 68 N. E. 238. 
 
 923 
 
§ 1467 CRIMINAI, Ni;GI<lGENCe 
 
 of probable consequences a wilful wrong. That this construc- 
 tive intention to do an injury in such cases will be imputed in 
 the absence of an actual intent to harm a particular person is 
 recognized as an elementary principle in criminal law. It is 
 also recognized in civil actions for recklessly and wantonly in- 
 juring others by carelessness." Citing Palmer v. Chicago St. 
 L. & P. R., 112 Ind. 250; Shumacher v. St. L. & S. F. R., 39 
 Fed. Repr. 174; Brannen v. Kokomo G. & J. G. R. Co., 115 
 Ind. 115. 
 
 One may be found guilty of homicide on evidence of reckless and 
 negligent indifference to the lives and safety of others without evidence 
 of criminal intent.^^ 
 
 § 1467. Malicious mischief. — From what has appeared, it follows 
 that if "criminal negligence," he supplied with a distinct and actual 
 malicious intent, the result will be malicious mischief, which Black- 
 stone describes,^" as damage done out of wanton cruelty arising from 
 a mischievous disposition, made penal in the highest degree. Dr. 
 Wharton,^' states it thus: "Absence of malice is essential to the idea 
 of negligence. Whenever there is malice negligence ceases, and the 
 offence becomes a malicious misdemeanor."^'^ 
 
 Again, irrespective of malice, if a motive is shown, the character of 
 negligence disappears, and there appears Blackstone's other element 
 in the crime of malicious mischief,^' "black, diabolical revenge." In 
 Com. V. Walden,^" Mr. Justice Wilde says, in a case bf prosecution for 
 malicious mischief: 
 
 "But an act may be unlawful, and may be done wilfully, 
 with or without malice, according to the evidence of the motive, 
 and of the circumstances attending the transaction."^^ 
 
 § 1468. Implied malice. — It has been seen that there can be no 
 element of direct malice in a negligence case. If such does appear, the 
 crime ceases to be one of negligence and assumes a more positive char- 
 
 26Schultz V. State, 89 Neb. 34, 130 N. W. 972; 33 L. R. A. N. S. 403. 
 
 2»4 Comm. 243. 
 
 2^2 Crim. Law, loth ed., sec. 1581. 
 
 28See also Ibid. sec. 1067 et seq. 
 
 294 Comm. 243. 
 
 S057 Mass. 560. 
 
 siSee I Hawk P. C. 324; also Mass. Revised Laws, chap. 208, sec. 116. 
 
 924 
 
INTENT, MALICE AND MOTIVE § 14^9 
 
 acter. But as "malice" is technically necessary to the existence of a 
 crime, the law applies the fiction of "implied malice" to these cases.'^ 
 This doctrine, however, is differently applied to wrongs mala prohibita 
 from the mode adopted concerning its application to those mala in se.^^ 
 
 § 1469. Malice in mala prohibita. — In the chapter on the En- 
 forcement of Motor Vehicle Laws.^* in calling attention to crimes mala 
 prohibita and to those mala in se, reference was made to certain Massa- 
 chusetts cases.^' As those cases point not only the distinction between 
 the classes of offences referred to, but set out the whole doctrine of 
 malice in its relation to crimes growing out of recklessness gross negli- 
 gence and the like, they will repay a somewhat extended review, 
 especially in the light of what was said by Chief Justice Knowlton, in 
 Banks v. Braman.^" 
 
 In Com. V. Adams,'' the defendant was accused of "assault and 
 battery," growing out of the following facts : While driving a sleigh 
 at a prohibited speed, the accused attempted to pass another vehicle, 
 and in so doing, knocked down a boy who was crossing the street. 
 The defendant pleaded guilty to violating the city ordinance against 
 fast driving, and was then indicted for assault and battery. No alle- 
 gation of intent to injure the boy was made, nor was there any charge 
 of wanton, or reckless or grossly negligent conduct, nor do the "Papers 
 and briefs" filed in the appellate court, anywhere refer to such conduct. 
 The Commonwealth stood solely on the violation of the city ordinance 
 and "asked for a verdict upon the ground that the intent to violate the 
 city ordinance supplied the intent necessary to sustain the charge of 
 assault and battery." The Supreme Court speaking through Mr. 
 Justice Endicott, say : 
 
 "It is true that one in the pursuit of an unlawful act may 
 sometimes be punished for another act done without design 
 and by mistake, if the act done was one for which he could 
 
 ^^CoJH. V. York, 50 Mass. 104. 
 
 8»CurIey v. Electric Vehicle Co., 68 N. Y. App. Div. 18. 
 "See Chapter XXIII. 
 
 s^Com. V. Adams, 114 Mass. 323; Com. v. Pierce, 138 Mass. 165; Com v. 
 Hawkins, 157 Mass. 551, S33, 32 N. E. 862, and Com. v. Parsons, 195 Mass. 560, 
 
 569. 
 
 "188 Mass. 367, quoted supra, § 956, 1518. See also Aiken v. Holyoke St. Ry., 
 184 Ma^s. 269, 81 N. E. 291 ; Bjornquist v. Boston & A. R., 185 Mass. 130, 70 
 N. E. 53. 
 
 »'ii4 Mass. 323. 
 
§ 1470 CRIMINAI, NEGUGBNCS 
 
 have been punished if done willfully. But the act to be unlaw- 
 ful in this sense must be an act bad in itself, and done with an 
 evil intent; and the law has always made this distinction: that 
 if the act the party was doing was merely malum prohibitum, 
 he shall not be punishable for the act arising from misfortune 
 or mistake ; but if malum in se, it is otherwise * * * Acts 
 mala prohdbita include any matter forbidden or commanded by 
 statute, but not otherwise wrong. It is within this last class 
 that the city ordinance of Boston falls, prohibiting driving 
 more than six miles an hour in the streets. 
 
 Besides to prove the violation of such an ordinance, it is not 
 necessary to show that it was done wilfully or corruptly. The 
 ordinance declares a certain thing to be illegal; it therefore 
 becomes illegal to do it, without a wrong motive charged 
 or necessary to be proved ; and the court is bound to administer 
 the penalty, although there is an entire want of design * * * 
 It was held in Commonwealth v. Worcester, 3 Pick. 462, that 
 proof only of the fact that the party was driving faster than 
 the ordinance allowed was sufficient for conviction * * *. it 
 is therefore immaterial whether the party violates the ordi- 
 nance wilfully or not. The offence consists, not in the intent 
 with which the act is done, but in doing the act prohibited, but 
 not otherwise wrong. It is obvious, therefore, that the viola- 
 tion of the ordinance does not in itself supply the intent to 
 do another act which requires a criminal intent to be proved."'* 
 
 § 1470. Malice in mala in se. — Com. v. Hawkins,'* cites Com. v. 
 Adams,*" in pointing the distinction now under consideration. The 
 defendant was charged with assault with a dangerous weapon. The 
 circumstances were that after dark, in the public street, he discharged 
 a pistol without intending to hit anyone, but the bullet struck and 
 wounded one Mary A. Powers who was standing some distance away. 
 On the trial the defendant requested tire judge to instruct the jury, 
 that the fact of firing the pistol in the street, being in violation of a city 
 ordinance (malum prohibitum) did not make it wrong in itself and 
 done with evil intent, hence did not render him criminally liable for 
 the result of the shooting. This instruction the court gave adding, 
 however, the following: 
 
 "But if they (the jury) "found that the defendant dis- 
 charged the revolver in a grossly careless and negligent man- 
 
 88See also People v. Powell, 63 N. Y. 92, infra. 
 
 S9IS7 Mass. 5SI, 553, 32 N. E. 862. 
 
 «>ii4 Mass. 323. 
 
 *iiThe italics are by the author of this book. 
 
 926 
 
INTfiNT, MALICE AND MOTIVE § 147° 
 
 ner, or in a wanton and reckless manner and by so doing 
 wounded Mary A. Powers, he was guilty of the charge in the 
 indictment ;" 
 
 the last feature of the instruction importing an offence malum in se. 
 The Supreme Court speaking through Mr. Justice Knowlton, de- 
 scribe the act of Hawkins as wanton, reckless and likely to do bodily 
 harm, also as one of gross negligence causing danger, all of which 
 acts are wrong in themselves, apart from any city ordinance. The 
 court observe that if the woman had died from the shot the defend- 
 ant would have been guilty of manslaughter, but as she did not, the 
 degree is that of assault and battery. It is also in the same opinion, 
 said: 
 
 "It is a general rule in criminal proceedings at common law 
 that the defendant cannot be convicted unless a criminal intent 
 be shown, but it is not necessary that he should have intended 
 the particular wrong that resulted from his act. If he in- 
 tends to do an unlawful and wrongful act, which is punish- 
 able because it is wrong in itself, and in doing it he inflicts an 
 unforseen injury, he is criminally liable for that injury. It is 
 a familiar rule that one who shoots intending to kill A., and 
 accidentally hits and injures B., is liable for an assault and 
 battery on B. So, in cases of homicide, the rule is well es- 
 tablished, that*^ one who wantonly, or in a reckless or grossly 
 negligent manner, does that which results in the death of a 
 human being, is guilty of manslaughter, although he did not 
 contemplate such a result. His gross negligence in exposing 
 another to a personal injury by intentionally doing the act 
 makes the intention criminal and supplies all the intent which 
 the law requires to make him responsible for the consequences." 
 
 In citing a number of cases maintaining this distinction, among 
 which is Com. v. Adams,^^ the judge says : 
 
 "There has been much discussion in the cases in regard to 
 the nature of the intent necessary to constitute this crime, but 
 the better opinion is that nothing more is required than an 
 intentional doing of an act which, by reason of its wanton or 
 grossly negligent character, exposes another to personal in- 
 jury, and causes such an injury" * * * 
 
 *2ii4 Mass. 323. 
 
 927 
 
§ 1470 CRIMINAI< NEGLIGENCE 
 
 "Inasmuch as recklessness or gross carelessness lies at the 
 foundation of the charge against the defendant, the fact that 
 the act was done in violation of a city ordinance was proper 
 evidence for the consideration of the jury on the question of 
 negligence." 
 
 Com. V. Pierce,*^ was a case of indictment for manslaughter, wherein 
 the defendant as attending physician, treated his patient by the use of 
 kerosene oil, from the effects of which treatment she died. There was 
 no charge of actual assault, or of actual malice, or of criminal intent ; 
 on the contrary the defendant's purpose was to effect a cure. He 
 was, nevertheless, convicted of the offence charged. The trial court 
 instructed the jury that: 
 
 "Injurious acts resulting from gross carelessness or fool- 
 hardy presumption in undertaking it. It is not necessary to 
 an assault. If persons who are engaged in operating steam 
 engines are guilty of gross carelessness or foolhardy presump- 
 tion, and injuries result, they are criminally liable. * * * 
 Whenever men are called upon to act with dangerous agencies, 
 the law holds them to some degree of criminal responsibility. 
 If they are grossly careless, or reckless and presumptuous, they 
 are guilty. * * * A man is not to be convicted of man- 
 slaughter merely because of his ignorance. His ignorance is 
 only important as bearing upon the question whether his conduct 
 * * * was marked by foolhardy presumption or gross and 
 reckless carelessness. The defendant in this case is to be 
 tried by no other or higher standard of skill or learning than 
 that which he necessarily assumed in treating her; that is, 
 that he was able to do so, without gross recklessness or fool- 
 hardy presumption in undertaking it. It is not necessary to 
 show an evil intent; if, by gross and reckless negligence, he 
 caused the death, he is guilty of culpable homicide." 
 
 Mr. Justice Holmes speaking for the Supreme Court, elaborately 
 reviews the authorities and sustains the ruling of the trial judge. In 
 the opinion the doctrine is thus stated (p. 175) : 
 
 "For a long time it has been * * * as fully * * * 
 recognized that a man may commit murder or manslaughter by 
 doing otherwise lawful acts recklessly, as that he may by doing 
 acts unlawful for independent reasons, from which death acci- 
 dentally ensues."** 
 
 *»138 Mass. 165. 
 
 **See the remarks of Mr. Justice Hall in State v. Campbell, 82 Conn. 671, 74 
 Atl. Repr. 927, and the cases referred to at the conclusion of the next section. 
 
 928 
 
INTBNT, MAWCE AND MOTIVE § I47I 
 
 And in another place it is said (p. 178) : 
 
 "As implied malice signifies the highest degree of danger 
 and makes the act murder; so, if the danger is less, but still 
 not so remote that it can be disregarded, the act will be called 
 reckless, and will be manslaughter, as in the case of an ordi- 
 nary assault with feet and hands, * * *, or firing a pistol 
 into the highway, when it does not amount to murder. * * * 
 or careless driving." * * * 
 
 Com. V. Parsons,*^ was a case wherein there had been a conviction 
 of murder in the second degree. The facts were that the defendant, 
 while intoxicated, discharged a loaded musket on the stairway inside 
 his house, the bullet from which killed one Gilmore. The accused 
 claimed that he had no motive for, or intent of shooting Gilmore, 
 but sought only to frighten burglars whom he imagined to be in the 
 house. Mr. Justice Sheldon, who wrote the opinion of the Supreme 
 Court affirming the conviction, quotes the language of Judge Holmes 
 in Com. v. Pierce {supra), on the point of intent, as follows (p. 569) : 
 
 "It is now as fully recognized 'that a man may commit 
 murder or manslaughter by doing otherwise lawful acts reck- 
 lessly as that he may by doing acts unlawful for independent 
 reasons, from which death accidentally ensues.' "*° 
 
 § 1471. Where particular result improbable. — In Wharton's 
 Criminal Law,*^ it is said : 
 
 "It is not necessary, to constitute negligence, that the spe- 
 cific damage should have been forseen as probable. If it were, 
 and if the ofifending party resorted to the inculpatory act to 
 produce the particular end, then the case is one of malice, not 
 of negligence. On the other hand, it is of the essence of negli- 
 gence that the injury caused by it should not have been forseen 
 as likely to arise in the immediate case.*^ The consequences 
 of negligence are almost invariably surprises. A man may be 
 negligent in a particular matter a thousand times without mis- 
 chief ; yet, though the chance of mischief is only one in a thou- 
 
 *si9S Mass. 560, 81 N. E. 291. 
 
 *«See also Banks v. Braman, 188 Mass. 367, 74 N. E. 594. quoted ante § 956, 
 post § 1518; People V. Peame, 118 Cal. 154, 50 Pac. 376. 
 *'ioth ed., sec. 168. 
 **Italics are by the author of this book. 
 
 929 
 59 
 
§ 1472 CRIMINAI, NEGLIGENCE 
 
 sand, we would rightly hold that the mischief, when it occurs, 
 is imputable to the negligence. Hence it has been properly held, 
 that it is no defence that a particular injurious consequence is 
 'improbable,' and 'not to be reasonably expected,' if it really 
 appear that it naturally followed from the negligence under 
 examination. The term 'reasonably to be expected' is to be 
 treated, therefore, as convertible with 'likely in the long run 
 to ensue.' "*» 
 
 III. Homicide. 
 
 § 1472. Involuntary manslaughter. 
 
 1473. Homicide through negligence in general. 
 
 1474. Homicide through negligent operation of motor vehicles. 
 
 1475. Causing illness resulting in death. 
 
 1476. Proximate cause. 
 
 1477. Illegal act. 
 
 1478. Illegal speed. 
 
 1479. Standard of care in manslaughter cases. 
 
 1480. Complaint for homicide. 
 
 1481. Precaution generally. 
 
 1482. Dangerous agencies. 
 
 1483. The vehicle, its appliances and repairs. 
 
 § 1472. Involuntary manslaughter is to be distinguished from 
 misadventure, the element of distinction being the unlawfulness of the 
 act of which the death is the unexpected result. It classes as a 
 felony.^^ 
 
 So it has been held that "carelessly and negligently running loco- 
 motives or cars, so as to effect death, is involuntary manslaughter 
 under statutes defining" that term.°^ 
 
 Irrespective of any statute, carelessness or negligence of conduct in 
 any responsible undertaking, where personal injury may result to 
 others, is a common law negligence per se and malum in se, therefore 
 an unlawful act, sufficient to be the basis of an indictment for invol- 
 untary manslaughter.^* 
 
 *9See Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338, infra § 1474. 
 
 BiWharton on Homicide, 3d ed., sees. 7, 210 et seq.; Com. v. Webster, S9 Mass. 
 
 304. 
 
 ozWharton on Homicide, 3d ed., sec. 466. 
 
 ^'Banks v. Braman, 188 Mass. 367, 74 N. E. 594, quoted supra; Lewis v. Amor- 
 ous, 3 Ga. App. 50. 58, S9 S. E. 338; State v. Watson, 216 Mo. 420, 115 S. W. 
 Repr. ion. 
 
 93t> 
 
HOMICIDE § 1473 
 
 Under the English rule, the responsibility lies with the man "actu- 
 ally in charge of the engine, and whose negligence caused the acci- 
 dent."" 
 
 The burden of proving the extenuating circumstances, and so re- 
 ducing the grade of the crime, is on the accused.^^ 
 
 § 1473. Homicide through negligence in general. — Dr. Whar- 
 ton,^' says negligent homicide occurs : 
 
 "When a death is caused by a person who is doing anything 
 or has charge of anything, dangerous in itself, and conducts 
 himself with regard to it, either by something which he does 
 or omits to do, in such a careless manner that he is guilty of 
 culpable negligence which ought to be punished." * * * 
 
 Continuing the same authority says, in sec. 446: 
 
 "The mere fact that an accident happened through an hon- 
 est misapprehension of the surrounding circumstances, or by 
 reason of a mistake in judgment, will not excuse the person 
 whose act caused it, where such misapprehension or omission 
 resulted from negligence in failing to observe and obey any 
 rule or precaution which it was his duty to obey and observe. 
 Nor is it an excuse that, after it was too late, the accused 
 sought to avoid the infliction of the injury, when it was caused 
 by his wanton and negligent act calculated to endanger life." 
 
 As to last point, see State v. Petteys." 
 
 And also, in sec. 448, the same author observes that : 
 
 "A criminal intent is not necessary, * * *' when the death 
 was the result of neglect of a known duty ; and ignorance of the 
 law forms no basis for an acquittal." 
 
 "^Wharton on Homicide, 3d ed., sec. 466; Com. v. Mink, 123 Mass. 422; 
 State V. Moore, 129 Iowa S14, 106 N. W. Repr. 16; Reg. v. Lowe, 4 Cox C. C. 449 
 (Eng.). 
 
 "Com. V. J. J. Knapp, 27 Mass. 477; Com. v. York, 50 Mass. in; The King 
 V. Plummer (Holt, C. J.)( 12 Mod. p. 628, Case 1031 (Eng.). 
 
 **0n Homicide, 3d ed., sec. 445, citing Com. v. Pierce, 138 Mass. 165, supra. 
 
 =^33 Wash. 444, 450, 74 Pac. 588. 
 
§ 1474 CRIMINAL NEGLIGBNCS 
 
 In Com. V. Pierce,^' the court in charging the jury remarked, con- 
 cerning an accusation of "culpable" homicide: 
 
 "It is not necessary to show an evil intent; if, by gross 
 and reckless negligence, he caused the death, he is guilty of 
 culpable homicide." 
 
 In Com. V. Hartwell,^' the defendant a railroad conductor, was in- 
 dicted for and convicted of manslaughter, in that, through negligence 
 and omission of duty, another train was thrown from the track and a 
 passenger thereon was killed. 
 
 Mr. Justice Endicott, in commenting on the indictment, says : 
 
 "The defendant is charged with the crime of manslaughter; 
 and the specific nature of the charge is that, by reason oi his 
 culpable negligence and omission to perform his duty, Patrick 
 Reagan was killed. His guilt therefore depends solely upon 
 the question whether he was negligent, and failed to perform 
 his duty upon a given occasion, and under such circumstances 
 that he may be held criminally responsible for the death." 
 
 § 1474. Homicide through negligent operation of motor ve- 
 hicles. — Manslaughter may be found from the reckless operation of 
 motor vehicles."" 
 
 A conviction for manslaughter was upheld where the defendant was 
 driving a racing car on a city street at a high rate of speed past a 
 street car standing to allow passengers to get off where instead of 
 stopping he swerves toward the street car to avoid a wagon and hits 
 a person stepping out from behind the car.°^ 
 
 In Lewis v. Amorous,"^ it appeared that the operator of the car, 
 one Pybus, had run over and killed a child. In an action against the 
 owner of the car for damages, Mr. Justice Powell says (p. 57) : 
 
 "Reckless driving of these machines brings upon the person 
 responsible, not only civil liabilities, but sometimes the penal- 
 ties of the criminal law. Indeed * * * Pybus, for the reck- 
 
 "8138 Mass. 165. 
 
 69128 Mass. 415. 
 
 BOHayes v. State, 11 Ga. App. 371, 755 E. 523. 
 
 8iMadding v. State, 118 Ark. 506, 177 S. W. 410. 
 
 823 Gg. App. so. 
 
 93a 
 
HOMICIDE § 1475 
 
 less taking of the life of the child whose homicide is the basis of 
 this section, has been convicted and sentenced for involuntary 
 manslaughter." 
 
 In State v. Watson,"' the defendant had been convicted of man- 
 slaughter in running his automobile over, and killing a little girl. 
 The court, by Mr. Justice Fox, say: 
 
 "Individuals as well as corporations in the use and opera- 
 tion of dangerous machines, should have a due regard to the 
 preservation of the rights of the public in the use of the pub- 
 lic streets, as well as the protection of persons using such 
 streets, from injury, and if they fail in this, and should, in 
 the operation of a vehicle, which is always attended with 
 more or less danger, negligently, carelessly and recklessly de- 
 stroy human life, it is but in keeping with the proper and 
 impartial administration of justice that the penalties should be 
 suffered for the commission of such acts.""* 
 
 The driver may be convicted of manslaughter on evidence that he 
 drove the automobile at a reckless speed without timely warning 
 between and in such close proximity to two tip carts as to endanger 
 the lives of the men in charge."^ 
 
 § 1475. Causing illness resulting in death. — A driver may be 
 found guilty of homicide if he hits a drunken man causing delirium 
 tremens which results in his death if the illness would not have ensued 
 had the wounds from the fall not been received."" 
 
 § 1476. Proximate cause."^ — In State v. Campbell,"^ it is said 
 that the "state must clearly show that the deceased's death was the 
 direct result of defendant's negligence." 
 
 "'216 Mo. 420, 115 S. W. Repr. (Mo.) loii. 
 
 «*See also People v. Scanlon, 132 N. Y. App. Div. 528, 117 N. Y. S. 57; State v. 
 Campbell, 82 Conn. 671, 74 Atl. 927 ; State v. Goetz, 83 Conn. 437, 76 Atl. Repr. 
 1000 (Conn.). 
 
 "'State V. Wagner, R. I. 1915, 86 Atl. 147. 
 
 68State V. Block, 87 Conn. 573, 89 Atl. 167, 49 L. R. A. N. S. gi3- 
 
 "^See § 1541 relating to contributory negligence by the deceased. Whether 
 illegal speed is proximate cause, see further § 1075 et seq. 
 
 "882 Conn. 671, 74 Atl. 927. 
 
 933 
 
§ 1477 CRIMINAI, NeGI,IGENCE 
 
 § 1477. Illegal act. — Where the defendant is violating some statute 
 and his manner is negligent he is guilty of manslaughter if the death 
 of some other person is the result."' 
 
 § 1478. Illegal speed. — One who kills a pedestrian by running 
 his automobile at an unlawful speed is guilty of homicide. The fact 
 that the person killed, a child, ran suddenly in front of the machine 
 is no defence. In driving at an illegal speed he must anticipate 
 that he might encounter not only grown people but children or even 
 blind or deaf persons. Even if the person killed were guilty of con- 
 .tributory negligence this is no defence since the rule of contributory 
 negligence does not apply in criminal cases.''" 
 
 But the mere fact that the defendant was driving slightly in excess 
 of the legal limit does not render him guilty of manslaughter if a 
 person threw himself in front of the car and thereby received injury.''^ 
 
 It is error to cliarge the jury that if the defendant was driving at a 
 speed faster than allowed by law when he ran over and killed a pedes- 
 trian this is manslaughter as this eliminated from the case all question 
 of the proximate, cause of the killing as the accident might have 
 happened if the defendant had been running at a legal speed. It further 
 eliminates all question whether the defendant in good faith believed 
 he was running at a legal speed as to convict him he must have been 
 aware that he was doing the unlawful act complained of.''^ 
 
 § 1479. Standard of care in manslaughter cases. — A statute 
 rendering the operator or owner of an automobile responsible for the 
 highest degree of care civilly does not apply to criminal prosecution 
 for manslaughter where he is liable only for culpable negligence, the 
 care of the ordinary prudent man.''' 
 
 §1480. Complaint for homicide. — ^An indictment charging murder 
 with an automobile managed by the defendant in an unlawful wanton 
 careless and negligent manner is sufiScient.''* 
 
 »»People V. Barnes, 182 Mich. 179, 148 N. W. 400; Luther v. State, 177 Ind. 
 619, 98 N. E. 640. 
 
 TOLauterbach v. State, 132 Tenn. 603, 179 S. W. 130; People v. Darragh, 141 
 App. Div. 408, 126 N. Y. S. 522. 
 
 ^1 People V. Barnes, 182 Mich. 179, 148 N. 'W. 400. 
 
 T^People V. Barnes, 182 Mich. 179, 148 N. W. 400. 
 
 '^State V. Horner, Mo. App. 1916, 180 S. W. 873. 
 
 7*Madding v. State, 118 Ark. 506, 177 S. 'W. 410. 
 
 934 
 
HOMICIDE § I48I 
 
 In a complaint for homicide a charge that the defendant did operate 
 his automobile at a rate of speed greater than was reasonable and 
 proper and so as to endanger the life and limb of others on the street 
 and while so negligently carelessly and unlawfully driving did make 
 an assault and killed one K. is sufficient to charge the defendant with 
 homicide." 
 
 §1481. Precaution, generally. — It is the duty of one who does any- 
 thing "which may be dangerous to human life to take proper pre- 
 cautions to prevent danger arising therefrom," and "if one does an 
 act from which danger to others may arise, without taking such pre- 
 cautions, and death results, it is negligent homicide in some degree."'® 
 
 The author just cited, says in this connection (Ibid. sec. 464) : 
 
 "And the necessity for the exercise of reasonable care upon 
 the part of a driver exists both with reference to the safety of 
 passengers and to persons whom he may meet in the road. 
 And the rule of criminal responsibility applies alike to death 
 caused by collision in a highway, and to death caused by run- 
 ning over the victim. And where the defence in a prosecution 
 for killing a person by driving over her in a public highway, is 
 that the driver used due and proper care, the burden of proof 
 of negligence does not lie with the crown, hut, the fact of the 
 killing being proved, the onus rests with the prisoner to show 
 that he used proper care."'''' 
 
 "Nor is racing in a public road lawful, and, if in doing so, 
 a passenger or traveler in the highway is killed the offence 
 is manslaughter. And where two persons drive together at a 
 dangerous pace and one of them runs over and kills a person, 
 both are guilty of manslaughter. Likewise a driver who runs 
 over and kills a person by reason of being in a place where 
 he could not see obstructions is guilty of negligence, and re- 
 sponsible as for negligent homicide. And this rule is particul- 
 larly applicable where he was near sighted ; and also where he 
 might have seen the danger, but did not look before him. And 
 where the streets are unusually crowded the driver of a con- 
 veyance is required to be particularly cautious, and is crim- 
 inally answerable for any accident resulting in death caused 
 by driving at a rate of speed not warranted by the surround- 
 
 "Schultz V. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. N. S. 403. See State 
 V. Campbell, 82 Conn. 671, 74 Atl. 927. 
 TBWharton on Homicide, 3d ed., sec. 463. 
 "The italics are by the author of this book. 
 
 935 
 
§ 1481 CRIMINAL NEGIvIGfiNCe 
 
 ings or without the precautions rendered necessary thereby. 
 Where an accident happens through some chance which a 
 driver using reasonable care and diligence cannot see and avoid, 
 however, he cannot he held criminally liable for a death result- 
 ing therefrom."'* 
 
 And in section 465 (Ibid), Dr. Wharton continues: 
 
 "To drive rapidly on an open country highway, where the 
 danger of collision is slight is not negligence. On the other 
 hand, rapid driving in a thronged street invokes a peculiar de- 
 gree of caution, and a fortiori, proof of driving in a public 
 street in a city, at a rate beyond that allowed by law, is suf- 
 ficient to charge the driver with the consequences that follow 
 from such driving. So also it is the duty of persons who are 
 driving over a crossing for foot-passengers to drive slowly, cau- 
 tiously, and carefully. Driving at the rate of fifteen miles an 
 hour or a mile in four minutes, on a thronged highway, is 
 wilful rashness per se; and if death ensued from a collision 
 thus produced, without fault of the injured party, the offence, 
 it seems, would be murder in the second degree, unless accom- 
 panied with such circumstances of passion as to reduce the 
 offence to manslaughter."'" 
 
 In Reg. v. Murray,*" Mr. Justice Perrin charged the jury : 
 
 "As to what has been urged by the counsel for the prisoner 
 as to the crowded state of the streets, rendering it difficult to 
 avoid an accident, I have to tell you that this unusual concourse 
 of persons, instead of offering any extenuation for the prisoner, 
 or diminishing the criminality of his careless driving * * * 
 would be but a circumstance to add to it, and that it was his 
 duty, as well as of all driving upon such occasions to take 
 more than ordinary precautions against accidents, and to use 
 more than ordinary diligence for the safety of the public." 
 
 In Johnson v. Hudson River R. R.,*^ Mr. Justice Denio says, pro- 
 prietors of railroad cars, particularly when operating at night in city 
 streets, are: 
 
 "bound to exercise the utmost care and diligence, and to use 
 all the means and measures of precaution which the highest 
 
 '*See State v. Watson, 216 Mo. 420, 115 S. W. Repr. loii. 
 '9&ee also Wharton Criminal Law, loth ed., sec. 355. 
 80s Cox C. C. Sio (Eng.). 
 8120 N. Y. 75, 6 Duer. 642. 
 
 936 
 
HOMICIDE § 1482 
 
 prudence could suggest. The degree of care required from 
 persons driving vehicles upon a thoroughfare varies according 
 to the circumstances of the case and is proportioned to the 
 danger to be apprehended of inflicting injury upon others. 
 The rule which would apply to ordinary carriages on common 
 roads would be quite inadequate as a test of that required from 
 managers of railroads ;" 
 
 and, by analogy — from operators of motor vehicles.*^ 
 
 § 1482. Dangerous agencies. — This topic is the subject of a 
 chapter*^ where the rules of law in this connection are applied to motor 
 vehicles, their custody and management. In a criminal aspect the ques- 
 tion is one of negligence measured by the degree of culpability and by 
 the character of the injury inflicted. 
 Wharton,** says on this point: 
 
 "Manslaughter may exist * * * where the killing results 
 from the negligent use of dangerous agencies. Whoever pos- 
 sesses a dangerous agent must take such care of it as good 
 business men, under such circumstances, are accustomed to 
 apply; and if, from his neglecting to exercise such care, death 
 ensues to another, he is liable for manslaughter."'^ 
 
 § 1483. The vehicle, its appliances and repairs. — In a preceding 
 chapter.'^ it was seen that the vehicle must be well constructed, sup- 
 plied with all proper safety appliances and be kept in such good 
 order and repair as will, on all occasions confer instant and complete 
 control upon the operator. Default in any of these particulars, the 
 consequences of which are the infliction of injury, render the motor- 
 ist liable criminally in the same degree as for negligent collision. 
 
 I 
 
 s^See the following cases showing the principles here applied : State v. O'Brien, 
 32 N. J. L. 32; Com. V. Kuhn, i Pittsburgh (Pa.) 13; Com. v. Cook, 8 Pa. Co. 
 Ct. Repr. 486; Morris v. The State, 35 Tex. Crim. Reps. 313, 33 S. W. S39; 
 State V. Stentz, 33 Wash. 444, 74 Pac. 588; Reg. v. Swindall, 2 Car. & K. 230; 
 Rex. V. Walker, i Car. & P. 320; Reg. v. Mastin, 6 Car. & P. 396; Rex. v. Grout, 
 6 Car. & P. 629; Knight's Case, i Lewin C. C. 168, East P. C. 231, 263. 
 
 ^'Chapter XVI, "Dangerous agencies.'' 
 
 8*0n Homicide, 3d ed., sec, 458. 
 
 s^See the observations of Mr. Justice Barker in Weil v. Kreutzer, 134 Ky. ^63, 
 121 S. W. 471, 24 L. R. A. N. S. 557- 
 
 8'Chapter XII on Operation. 
 
 937 
 
§ 1484 CRIMINAL NBGWGENCE 
 
 IV. Crimes Less Than Homicide. 
 
 § 1484. Crime measured by results. 
 
 1485. Assault and battery. 
 
 i486. Assault and battery by driving motor vehicle. 
 
 1487. When illegal speed not proximate cause of battery. 
 
 1488. Trespass. 
 
 1489. Nuisance from speeding. 
 
 1490. Contributory negligence in these cases. 
 
 1491. Parties. 
 
 1492. Misadventure in negligence cases. 
 
 1493. Remedies. 
 
 1494- Questions of fact not reviewed on appeal. 
 
 § 1484. Crime measured by results. — The various phases of 
 the law of criminal neligence have been considered in connection with 
 negligent homicide, because therein are included the principles that 
 apply generally to disasters from many sources, which may befall the 
 motorist in traveling the public ways. At the last it is usually a matter 
 of fortune, s(J far as human interposition is concerned, whether the 
 victim of a motor vehicle accident is slain or simply bruised in the 
 castastrophe. The law punishes in a degree measured by the result of 
 the offence, rather than by accurate tests of its moral aspect.** 
 
 In People v. Foren,*° it is said: 
 
 "The common law measures an act which is malum in se 
 substantially by the result produced, though not contemplated, 
 holding the doer of the act guilty of the thing done in the same 
 manner, as if it were specially intended, though not always 
 guilty of the crime committed in the same degree." 
 
 Hence, in all cases, where the injured party escapes with his life, 
 the same rules of law will control under an indictment for assault 
 and battery, as would have applied, in the event of his death in a 
 prosecution for manslaughter. For these reasons the reader espe- 
 cially interested in assault and battery, is referred, in supplement of 
 what appears hereafter, to the preceding sections of this chapter for 
 aid in his work. 
 
 8'Author's Note: Offenses of the character of misdemeanor mala prohibita, 
 are treated in respect of the specific violations out of which they grow, and also, 
 in the early part of this chapter. They will be found under appropriate heads. 
 
 esCom. V. Hawkins, 157 Mass. 551, 553, 32 N. E. 862. 
 
 8»2S Cal. 364 (quoted supra), citing Rutherforth's Institutes, B. I. C. 18, sec. 11. 
 
 938 
 
CRIMBS I<ESS THAN HOMICIDB § 1485 
 
 § 1485. Assault and battery. — "An assault is an apparent attempt 
 by violence to do corporal hurt to another."^" 
 
 "An intention to hurt is not necessary to constitute an assault." 
 * * * "A negligent attack, also, in which^there is no intent may be an 
 assault." "Reckless shooting" (or driving) "into a crowd is an as- 
 sault, and an assault on several indiscriminately is an assault on each 
 individual."'^ 
 
 In Com. V. Randall,'^ the indictment and conviction were of a 
 schoolmaster for assault and battery, in unduly exercising his lawful 
 authority to inflict corporal punishment upon a pupil. Mr. Justice , 
 Bigelow, for the court, says: 
 
 "It is undoubtedly true that in order to support an indict- 
 ment for assault and battery, it is necessary to show that it 
 was committed e.v intentione, and that if the criminal intent is 
 wanting, the offence is not made out. But this intent is always 
 inferred from the unlawful act." 
 
 In Com. v. Pierce,^' Mr. Justice Pitman charged the jury on this 
 point as follows: 
 
 "Injurious acts resulting from gross carelessness or fool- 
 hardy presumption, without intent to injure, may constitute 
 an assault.""* 
 
 "A battery is an assault in which force is applied by material agen- 
 cies to the person of another, either mediately or immediately."'" 
 
 An assault may occur without an accompanying battery, but "every 
 battery includes an assault.""" 
 
 The essence of the offence is that it was without the consent of the 
 person on whom it was inflicted."' 
 
 s"! Wharton's Criminal Law, loth ed., sec. 603. 
 
 "^Ibid. sec. 608, 608a, 367; Banks v. Braman, 188 Mass. 367, 368, 74 N. E. 594- 
 
 "270 Mass. 38. 
 
 «si38 Mass. i6s, 171. 
 
 »*See also Banks v. Braman, 188 Mass. 367, 368, 74 N. E. 594, quoted §§ 956, IS18. 
 
 '^Wharton's Criminal Law, loth ed., sec. 617. 
 
 96Johnson v. The State, 17 Tex. 517. 
 
 B'Wharton's Criminal Law, loth ed., sec. 6o3n. 
 
 939 
 
§ i486 CRIMINAL NEGUGBNCE 
 
 In Com. V. Clark,'* Chief Justice Shaw, described a battery as 
 follows : 
 
 "Every touching of another's person, wilfully or in anger, 
 without his consent, is technically a battery, unless justifiable. 
 But if justifiable it is not necessarily either a battery or an as- 
 sault.'"' 
 
 It is wholly immaterial with what sort of an agency an assault and 
 battery is committed. It may as well happen by driving recklessly 
 "amongst a crowd of people," whereby one is injured, as by a blow 
 of the fist directed at the individual himself.^"" 
 
 For, as has been pointed out, an assault indiscriminately directed 
 against several, is an assault upon each.^ 
 
 An assault and battery always involves a breach of the peace, and 
 as such is to be treated criminally, although on its civil side its na- 
 ture is that of a tort for which damages may be recovered by the in- 
 jured party. ^ 
 
 § i486. Assault and battery by driving motor vehicle. — ^An 
 assault and battery may be committed by hitting another with an auto- 
 mobile.^ In such case the fact of exceeding the speed limit is not the 
 controlling factor but that the rate of speed was obviously dangerous. 
 
 Assault and battery may be committed upon a bicycle rider by an 
 automobilist colliding with the bicycle. The force need not be direct.' 
 
 The running of an automobile at a high rate of speed is a wilful 
 act and there is therefore no legal reason why the crime of assault 
 and battery may not 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 injury.^ 
 
 '843 Mass. 24. 
 
 »»Citing 5 Dane's Abr. 584. See also Blackstone's Comm., Book III, p. 120. 
 
 loowharton's Crim. Law, loth ed., sec. 353, and Chap. VIII, sec. 603. 
 
 iBanks v. Braman, 188 Mass? 367, 368, 74 N. E. S94. 
 
 "Com. V. Rider, 29 Pa. Super. Ct. 621. 
 
 ^Schneider v. State, 181 Ind. 218, 104 N. E. 6g. ■ 
 
 State V. Schutte, 87 N. J. L,. (2 Gum.) 15, 93 Atl. 112, 96 Atl. 659. 
 
 4Luther v. State, 177 Ind. 619; 98 N. E. 640. 
 
 oState V. Schutte, 87 N. J. L. (2 Gum.) 15, 93 Atl. 112, 96 Atl. 659. 
 
 940 
 
CRIMES LESS THAN HOMICIDE § I487 
 
 § 1487. When illegal speed not proximate cause of battery. — 
 Where an automobile is passing a bicycle going in the same direction 
 and the bicycle suddenly swerves to the left and collides wih the auto- 
 mobile the driver of the automobile cannot be convicted of assault and 
 battery. It is immaterial that he was driving at an unlawful rate of 
 speed as his speed was not the cause of the collision. It might be said 
 that if the automobile had been operated at a slower rate it would not 
 have been opposite the bicycle when it swerved but on the other hand 
 if he had been moving faster he would have passed the bicycle rider 
 easily. There is here no evidence of direct intent to injure the bicycle 
 rider and no such reckless disregard of consequences indicating a 
 willingness to inflict injury.^ 
 
 § 1488. Trespass. — A crime of any kind, from the highest in qual- 
 ity to the meanest, involves what is known as a "trespass," either upon 
 the laws of society or upon the rights of the individual injured by the 
 wrongful act. In distinguishing crimes one from the other, as murder 
 is distinguished from manslaughter, and both from assault and bat- 
 tery, the law but discriminates between trespasses in their degree of 
 heinousness. One may trespass upon the person or upon the property 
 of another, by invading his rights as to either ; hence trespasses have been 
 given different names. We have for so long a time been accustomed to 
 think of these offences under their specific titles, that the generic name 
 which includes them all, is apt to be overlooked. Blackstone's Com- 
 mentaries,^ gives the following definition : 
 
 "Trespass in its largest and most extensive sense, signifies any 
 transgression or offence against the law of nature, of society, 
 or of the country in which we live ; whether it relates to a man's 
 person ,or his property. Therefore beating another is a trespass ; 
 for which (as we have formerly seen) an action of trespass vi et 
 armis in assault and battery will will lie. * * * And in gen- 
 eral, any misfeasance, or act of one man whereby another is in- 
 juriously treated or damnified, is a transgression or trespass in its 
 largest sense." 
 
 None of the technical limitations or qualifications which have gath- 
 ered around the word in certain kinds of proceedings in the law, have 
 limited or abridged this description.* 
 
 «Luth6r V. State, 177 Ind. 619; 98 N. E. 640. 
 
 ■^Book III, p. 208. 
 
 sSee Banks v. Bratnan, 188 Mass. 367, 74 N. E. 594, quoted §§ 956, 1518. 
 
 941 
 
§ 1489 CRIMINAL NEGLIGENCE 
 
 With assaults of an "aggravated" character, such as assault with in- 
 tent to murder, or to maime, or to injure property, this work has little to 
 do, for in all such cases, as Dr. Wharton" says, "the intent is the essence 
 of the offence," and the presence of direct intent or distinct design, is in- 
 compatable with the fundamental idea of negligence. The consider- 
 ation to be given, therefore, will be limited to what is often spoken of 
 as "common" assault and battery. 
 
 § 1489. Nuisance from speeding. — One speeding his automobile 
 may be guilty of a nuisance.^" 
 
 § 1490. Contributory negligence in these cases.—Dr. Thomp- 
 sons^ says : 
 
 "The doctrine of contributory negligence has no application 
 to wilful and malicious injuries, except that the person injured 
 cannot recover compensatory damages which he has enhanced 
 by his subsequent negligence. * * * pQj. example, contribu- 
 tory negligence is no defence to an action for assault and bat- 
 tery." 
 
 § 1491. Parties. — "An assault even when the object is a felony, is 
 at common law, a misdemeanor."^^ 
 
 "All concerned in any assault are principals. Hence, one who incites 
 others to commit an assault is guilty, and may be punisb"'' 
 pal if the offence be actually committed, although he did not otherwise 
 participate in it."*' 
 
 § 1492. Misadventure in negligence cases. — Misadventure grow- 
 ing out of negligence is no defence in a prosecution for assault and 
 battery." 
 
 § 1493, Remedies. — "A prosecutor in an indictment for an assault 
 and batttery who has commenced a civil suit for the injury, will not 
 be compelled to abandon either the civil suit or the prosecution. Both 
 may be sustained ; the first for damages to the injured individual, the 
 
 ^Criminal Law, loth ed., sec. 641. 
 
 loPeople V. Darragh, 126 N. Y. S. 522, 141 App. Div. 408. 
 
 "Com. on Negligence, 2d ed., sec. 247. 
 
 i^Wharton's Criminal Law, loth ed., sec. 603. 
 
 I'lbid. sec. 616, 638; Com. v. Sherman, 191 Mass. 439, 441, 78 N. E. 98; Du 
 Cros V. Lamboume, 76 L. J. N. S. K. B. 50, 1907. 
 
 i*Wharton's Criminal Law, loth ed., sees. 620, 608; Banks v. Braman, 188 
 Mass. 367, 368, 74 N. E. 594. quoted § 956, 15 18. 
 
 942 
 
DEFENCES § 1494 
 
 second to avenge the public wrong. The court, however, will not give 
 a severe judgment upon the criminal conviction, unless the prosecutor 
 will agree to relinquish his civil remedy."" 
 
 § 1494- Questions of fact not reviewred on appeal. — Where there 
 is some evidence sufficient to present an issue as to intent to commit as- 
 sault and battery and that issue has been decided by the trial court the 
 appellate court has no power to question that finding." 
 
 V. Defbnces. 
 
 § 1495- Contributory negligence no defence. 
 
 1496. Misadventure. 
 
 1497. Self-defence. 
 
 1498. Excusable crimes. 
 
 1499. When defendant tries to avoid collision. 
 
 1500. Intoxication — common law view. 
 
 1501. Responsibility when driver is overcome from exposure or illness. 
 
 1502. Mistake of judgment. 
 
 1503. Inevitable accident. 
 
 1504. Inevitable accident in motor vehicle cases. 
 
 1505. Subsequent negligence by person injured. 
 
 § 1495. Contributory negligence no defence.— Wharton" says, 
 concerning contributory negligence in criminal cases: 
 
 "The prevailing rule, however, is that there is no anology be- 
 tween a civil case of pecuniary compensation to the injured per- 
 son and a criminal case for the punishment of guilt, and that 
 there can be no balance of blame in charges of felony; and that, 
 therefore, a charge of negligent homicide will lie where death 
 ensues from injuries negligently inflicted, though the person 
 killed may have contributed to his own death by his own negli- 
 gence."^' 
 
 Especially is this rule applicable, continues Dr. Wharton (Ibid), 
 "where the negligent act of the accused produced, or was the cause of, 
 
 i^See chapter "Measure of Damages," Wharton's Criminal Law, loth ed., sec. 
 618. 
 
 See in this connection Com. v. Adams, 114 Mass. 323, quoted § 1469. 
 
 leSchneider v. State, 181 Ind. 218 ; 104 N. E. 69. 
 
 ^'On Homicide, 3d ed., sec. 482. 
 
 Instate V. Campbell, 82 Conn. 671; 74 Atl. 927; Schultz v. State, 89 Neb. 34, 
 130 N. W. 972, 33 L. R. A. N. S. 403; Lauterbach v. State, 132 Tenn. 603; 179 
 S. W. 130. 
 
 943 
 
§ 1495 CRIMINAI, NEGLIGENCE 
 
 the negligent act of the deceased."" The facts in the case cited were 
 that Belk, the accused, was driving a team of horses and ran into a 
 vehicle ahead of him, in which the deceased was seated, causing the 
 horses attached to the latter to run away, whereby she was thrown 
 out and killed. The court say on the point now under consideration : 
 
 "It can make no difference whether the driver of the team" 
 * * * in "which the deceased was riding, was guilty of negli- 
 gence in not controlling or failing to control his team after the 
 collision. * * * If the driver, instead of being negligent, as is 
 claimed, in controlling his team, had done some act contributing 
 to the running away of his horses, or driven upon a bank, where- 
 by the carriage had been overturned and the deceased thrown 
 out, or the like, it might justly be said that it was the act of the 
 driver, and not of the defendants, to which the death of the 
 deceased was legally attributable. * * * jf^ therefore, the 
 defendants * * * knowing the danger of the collision, and 
 the probable consequences following therefrom, recklessly and 
 negligently, or wantonly and wilfully, permitted the horses to 
 run down and collide with the vehicle of deceased, without using 
 such means as were reasonably at their command to prevent the 
 same, they should be held penally responsible for the result of 
 their negligence or wilful omission of duty." 
 
 The remarks of the court in this case give point to one of the dis- 
 tinctions drawn by Dr. Wharton,^" concerning contributory negligence 
 on the part of the injured in cases of criminal negligence, namely, 
 where the deceased actively participated in the occurrences which re- 
 sulted in his injury. Thus if he seized the reins, or otherwise inter- 
 posed in the management, even though the driver was unskilful or 
 negligent, the latter cannot be held guilty of manslaughter.''^ 
 
 But, as has already appeared, this rule does not ordinarily apply to 
 those who interpose to rescue a person from peril. To relieve the de- 
 fendant, there must^^ have been such a direct, positive interposition on 
 the part of the deceased or some third person, as to break the causal 
 connection between the act of the accused and the death of the de- 
 
 i^Citing the case of Belk v. People, 125 111. 584, 17 N. E. 744. 
 
 zoibid. sec. 482. 
 
 siReg. V. Jones, 11 Cox C. C, 544 (Eng.). 
 
 22Wharton's Criminal Law, loth ed., sec. 341. 
 
 944 
 
DEFENCES § 1495 
 
 ceased. It is also conceivable that there might also be the occurrence 
 of "some extraordinary natural phenomenon."^' 
 
 A common illustration of this principle is where a person "negli- 
 gently rushes into danger, such action not being incident to a lawful 
 business," that person cannot sue either criminally or civilly.^* "The 
 true line," says the author last cited,^^ 
 
 "is this, if the deceased, in full possession of his senses, caused 
 either deliberately or negligently his own death, then he and 
 not the person inflicting the wound is chargeable with the death. 
 * * * But where the deceased's negligence contributed to 
 his death, such negligence is no defence, when either ( i ) it was 
 one of the ordinary incidents of the conduct of a person in his 
 situation; or (2) when the wound would otherwise have been 
 fatal."^» 
 
 Dr. Wharton^^ gives the following illustration of the rule just stated : 
 
 "A carriage is driven recklessly along a road and kills a 
 drunken man, who if he were sober, could have got out of the 
 way. The deceased's drunkenness is in this case no defence, be- 
 cause the defendant had no right to drive recklessly along the 
 road. But if, though there may have been some negligence on 
 the defendant's part (e. g. in the equipment of his carriage), 
 the injury was primarily due to the deceased having flung him- 
 self recklessly in the defendant's path, such contributory negli- 
 gence is a defence."^' 
 
 The New York court of appeals, in Palmer v. Dearing,^* by Chief 
 Judge Ruger, say : 
 
 "While previous knowledge by a party injured, of a danger- 
 ous situation or an impending danger, from which a person of 
 ordinary intelligence and prudence might reasonably apprehend 
 
 23Wharton on Criminal Law, loth ed., sec. 341; Reg. v. Jones, 11 Cox Crim. 
 Cas. 545 (Eng.). 
 
 2*See Wharton's Criminal Law, sec. 147. 
 
 25Sec. 163. 
 
 2eSee also Com. v. Boston & M. R., 129 Mass. 500; Parsons v. The State, 21 
 Ala. 301 ; State v. Smith, 10 Nev. 123. 
 
 2'Criminal Law, loth ed., sec. 163. 
 
 28See also Rex. v. Walker, i Car. & P. 320 (Eng.). 
 
 2»93 N. Y. 7, 10. 
 
 945 
 60 
 
§ 1496 CRIMINAI, NEGIvIGENCE 
 
 injury, generally imposes upon him the duty of exercising 
 greater care and caution in approaching it, yet the degree of care 
 which should be required of such a person has uniformly been 
 held in this state to be a question of fact to be determined .by 
 the jury."'" 
 
 § 1496. Misadventure, as that word is used in the law, can never 
 be the result of an act of gross negligence or of recklessness, or of a 
 wilful or wanton disregard of the rights of others, however little in- 
 tended and unforseen the result may have been. Acts of the latter class 
 are unlawful ; to be "misadventure," the result must have followed 
 from a lawful act not negligently performed, and wholly unintended. 
 Dr. Wharton,^^ speaking of homicide per infortuniam or by misadven- 
 ture, says it occurs "where a man doing a lawful act without any in- 
 tention of hurt, non-negligently kills another."^^ 
 
 See also Wharton on Homicide,^' where misadventure is distin- 
 guished from "involuntary manslaughter." The former is accidental, 
 unintentional, unaccompanied by negligence or recklessness, "after 
 using proper precautions to avoid danger," and occurring while one 
 is engaged "in the performance of a lawful act"; the latter is homi- 
 cide which "happens in consequence of an unlazvful" act.'* 
 
 § 1497. Self-defence can never be confused with misadventure. 
 As just observed, the latter is wholly unintentional, while self-defense 
 is "an affirmative, positive and intentional act."'° 
 
 § 1498. Excusable crimes. — Misadventure and self-defence fall 
 within the category of "excusable" crimes, but the burden of proof is 
 on the defendant, because in nature they are affirmative defences.^' 
 
 § 1499. When defendant tries to avoid collision. — If the de- 
 fendant was running negligently when he first saw the deceased he 
 
 soSee also Tiflfany v. Drummond, 168 Fed. Repr. 47, 93 C. C. A. 469; Kauffraan 
 V. Nelson, 225 Pa. St. 174, 73 Atl. 1105. 
 
 siCriminal Law, loth ed., sec. 306. 
 
 82 1 East P. C. 260. 
 
 '83d ed.. sec. 353. 
 
 3*See also People v. Olsen, 80 Cal. 122, 22 Pac. 125. 
 
 ssWharton Homicide, 3d ed., sec. 353. 
 
 86Wharton on Homicide, 3d ed., sec. 354; Wharton's Criminal Law, loth ed., 
 sec. 306, and note 5 ; Wharton's Criminal Evidence, 9th ed., sec. 331 ; The King 
 V. Plummer, 12 Mod. 628, Case 1031 Eng. 
 
 946 
 
DEFENCES § 1500 
 
 may be guilty though he exerted his best efforts thereafter to avoid a 
 collision.'' 
 
 § 1500. Intoxication — common law view.'* — ^^The criminal respon- 
 sibility in cases less than deliberate murder, is not altered or affected 
 by the fact that the defendant was under the influence of intoxicating 
 liquor. This rule is "practically universal and is supported by a vast 
 number of cases." '• 
 
 In People v. Pearne,*" the defendant, while intoxicated, drove his 
 horses through the principal street of a town "in a reckless manner and 
 at a great and unusual rate of speed," fatally injuring a feeble old 
 woman. In the opinion, affirming a verdict of manslaughter, it is 
 said*^ : 
 
 "Certainly, if the deceased was run over and killed by the de- 
 fendant 'without due caution and circumspection' when not 
 under the influence of liquor, his crime at least would be equally 
 as apparent and heinous as if it had been committed by him when 
 drunk."« 
 
 Nor can the defendant successfully excuse himself on the ground 
 that the deceased was intoxicated.*' 
 
 In Alger v. City of Lowell," Mr. Justice Hoar said : 
 
 "Intoxicated persons are not removed from all protection of 
 the law. * * * fhe intoxication was an important circum- 
 stance to be considered by the jury, upon whether due care was 
 used. * * * But if the plaintiff was lawfully traveling upon 
 the street, and using due care, or due care was taken of him, he 
 had a right to compensation for an injury done to him by the 
 negligence of the city." 
 
 If it be shown that the driver was intoxicated or asleep at the time 
 of an accident, a presumption of negligence would properly arise, but 
 
 '^State V. Campbell, 82 Conn. 671, 74 Atl. 927. 
 
 '^See § 460 et seq. 
 
 ssWharton on Homicide, 3d ed., sec. 542, and cases cited in footnote thereto. 
 
 *<'ii8 Cal. 154, 50 Pac. 376. 
 
 *ip. 159. 
 
 *2See Reg. v. Jones, 11 Cox C. C. (Eng.) S44; Com. v. Gilbert, 163 Mass. 45. 
 
 42 N. E. 336. 
 ^'Wharton, Homicide, 3d ed., sec. 542. 
 «*8s Mass. 402, 406. 
 
 947 
 
§ I SOI CRIMINAL NBGIvIGENCB 
 
 the fact from which the inference is to be drawn must first be estab- 
 lished.*= 
 
 § 1 501. Responsibility when driver is overcome from exposure 
 or illness. — It occasionally happens that the driver is overtaken by 
 sudden illness or becomes benumbed with cold, so as to be unable 
 properly to direct his car, and accident results before there is oppor- 
 tunity to replace him. In Saltonstall v. Stockton** the plaintiff asserted 
 that the driver of the coach was intoxicated. This the driver denied, 
 explaining that he was overcome by the severity of the cold. Chief 
 Justice Taney, sitting at circuit, in his instructions to the jury, said : 
 
 "If the driver was a person of competent skill, of good habits, 
 and in every respect qualified and suitably prepared for the busi- 
 ness in which he was engaged, and the accident was occasioned 
 by no fault, or want of skill or care on his part or that of the 
 defendant's, but by physical disability in the driver, produced by 
 exposure to extreme and unusual cold, which rendered him for 
 the time incapable of doing his duty, then the defendants are not 
 liable to this action." 
 
 § 1502. Mistake of judgment.*'' — A mere mistake in judgment or 
 a mere miscalculation, without gross negligence, or recklessly negli- 
 gent conduct, is no crime. But the act would be criminal if the accused, 
 by wilful confidence in his own opinion, which was contrary to all rea- 
 son and experience, acted so as to cause the accident.*' 
 
 "The judgment that is required to be exercised is the judgment of a 
 man of ordinary and common prudence."*® 
 
 And the error therein must be free from the taint of negligence.^" 
 
 Dr. Thompson" states the doctrine as follows : 
 
 "Persons are not in general liable for mere errors of_ judg- 
 ment, unless in cases where they profess to exercise skill and 
 
 *BPhiladeIphia, etc., R. v. Henrice. 92 Pa. St. 431 ; Schafer v. Gilmer, 13 Nev. 
 330; Booth's Street Railway Law, sec. 323. 
 *6Taney 16 (affirmed 13 Peters, 181). 
 "Ste § 1088 et seq. 
 *8Wharton on Homicide, 3d ed., sec. 466; Com. v. Cook, 8 Pa. Co. Ct. Reps. 
 
 486. 
 *»Hoyt V. N. Y. L. E. & W. R., 118 N. Y. 399, 406, 23 N. E. 565. 
 soCom. V. Cook, 8 Pa. Co. Ct. Rep. 486. 
 BiCom. on Negligence, 2d ed., sec. 22. 
 
 948 
 
DEFENCES § 1503 
 
 judgment and fail to make good that profession. * * * The 
 rule in such cases is, that if the occupation or employment as- 
 sumed by the person charged with inflicting an injury, requires 
 a needful degree or standard of skill, the failure to exercise that 
 needed skill will be imputed to him as negligence, whether that 
 failure arises from inattention, or because the skill is not in fact 
 possessed by him." 
 
 In Lawrence v. Fitchburg, Etc., Ry.," Judge Sheldon says that an 
 error of judgment in a case calling for speedy action is not to be held 
 as negligence, but "even in an emergency, one must exercise reason- 
 able care under the circumstances."'^ 
 
 § 1503. Inevitable accident."* — "Responsibility (imputatio) ceases 
 where casus, or as it is often expressed, 'the act of God,' intervenes. 
 If in the act producing the damage there is nothing to be imputed to 
 the defendant, there is nothing with which he is chargeable.""" 
 
 "CasurS," as that word is often used, expresses "inevitable accident." 
 The full rendering casus fortuitis, is defined by Chief Justice Fuller as 
 "a loss happening in spite of all human effort and sagacity. "^'^ 
 
 The expression "act of God" as applied by the law, means such acci- 
 dents as are produced by physical causes which cannot be escaped by 
 any human effort, foresight or precaution, such as lightning, storms, 
 perils of the sea, earthquakes, sudden death or illness." 
 
 The words "inevitable accident" are not fairly identical with the "act 
 of God," the latter excluding all human agency."* 
 
 Such causes of accident are all embraced in the term vis major. 
 
 In Amoskeag v. The John Adams,"" a ferry boat in motion had col- 
 lided with a vessel made fast to a wharf. The defendant pleadeH "in- 
 
 52201 Mass. 489, 87 N. E. 898. 
 
 "^See in this connection Hause v. I^ehigh Valley Transit Co., 38 Pa. Super. 
 Ct. Reps. 514, 1908. 
 
 "*See §§ 
 
 soWharton Criminal Law, loth ed., sec. 169. 
 
 5«"The Majestic," 166 U. S. 375, I7 S. Ct. 597; Mclntyre v. Orner, 166 Ind. 57, 
 69, 76 N. E. 750; Simeone v. Lindsay, 6 Pen. (Del.) 224, 65 Atl. 778. 
 
 s^Fish V. Chapman, 2 Ga. 356. 
 
 58Mc Arthur v. Sears, 21 Wend. (N. Y.), 197. 
 
 59i Fed. Cas. No. 338. 
 
 949 
 
§ 1503 CRIMINAL NEGLlGH^NCfi 
 
 evitable accident." Mr. Justice Clifford, sitting in the circuit court 
 for the district of Massachusetts, says on this subject (page 795) : 
 
 "Inevitable accident, in the absolute and strict sense of the 
 terms, says Dr. Lushington in the case of the Europa, 2 Eng. 
 Law and Eq. 559, very seldom takes place. According to his 
 view, the word 'inevitable' must be considered a relative term, 
 and must be construed, not absolutely, but reasonably, with re- 
 gard to the circumstances of each particular case. * * *The 
 question, however, came up again in the case of The Lochlibo, 
 3 W. Rob. Adm. 318, before the same learned judge. On this 
 last occasion, after defining the term 'inevitable accident,' as 
 meaning a collision which occurs when both parties have en- 
 deavored by every means in their power, with due care and 
 caution and a proper display of nautical skill, to prevent the ac- 
 cident, he held it to be clear that prima facie, the onus probandi 
 was on the owners of the moving vessel, and that they were 
 bound to establish by credible evidence, that their vessel was not 
 to blame at all." 
 
 In State v. Lewis,"" the Supreme Court of North Carolina, discuss 
 the meaning of the word "accident" and the relations in which that 
 word is used. In the opinion, Mr. Justice Avery says : 
 
 "The word 'accident' in its legal sense has been defined to be 
 '(i) an event happening withotit the concurrence of the will of 
 the person by whose agency it was caused; (2) an event that 
 takes place without one's foresight or expectation.' * * * 
 The additional qualifying and intensifying word 'unavoidable' 
 would imply not simply the passive state of having no agency 
 in bringing about the event, but the active exertion of one's 
 powers to prevent it. * * * Webster says that the word 'ac- 
 cident' is often used in the sense of 'an undesigned and unfor- 
 tunate occurrence of an afflicted nature; a casuality; a mishap 
 as to die by accident.' The same author defines 'unavoidable as 
 meaning incapable of being shunned or prevented ; inevitable.' 
 * * * Anderson in his Law Dictionary (p. 12) says: 'An 
 accident is an event or occurrence which happens unexpectedly 
 from uncontrollable operations of nature alone, and without 
 human agency,' — and that unavoidable accidents are such as are 
 'inevitable' or absolutely unavoidable because affected or influ- 
 enced by the uncontrollable operations of nature. Id. p. 13. The 
 same author gives also another definition, as follows : 'An acci- 
 
 «oio7 N. C. 967, 12 S. E. 460. 
 
 950 
 
DEFENCES § 1504 
 
 dent not occasioned in any degree remotely or directly by want of 
 such care or skill as the law holds every man bound to exer- 
 cise.' " 
 
 § 1504. Inevitable accident in motor vehicle cases. — The court 
 may instruct the jury that if they find that the injuries resulted from 
 an unavoidable accident unmixed with negligence the verdict should be 
 for the defendant," and the jury may find that neither the plaintiff 
 or defendant was guilty of negligence."^ 
 
 A fair illustration is to be found in the case of Jordan v. American 
 Sight-Seeing Coach Co.*^ The facts were that a boy eleven years old 
 was standing on the sidewalk watching other children playing with a 
 ball in the street. A heavy sight-seeing automobile was approaching 
 at a "medium rate of speed," on its own side of the way and upon a 
 down grade. Suddenly, without any warning, the boy darted from the 
 sidewalk directly in front of the automobile. The chauffeur did every- 
 thing in his power to stop the car, but although the "wheels stood still," 
 the car slid, striking the boy and killing him. The court, in exonerating 
 the chauffeur, found that the machine was stopped "so that its hind 
 wheels were only five feet from the body" of the boy. In such cases 
 as this it may be well said that the circumstances rendered the accident 
 inevitable. 
 
 It may be an unavoidable accident if the driver turns suddenly 
 against a carriage he is passing to avoid a bicyclist.^* 
 
 The defendant is not liable if he turns his automobile suddenly to the 
 leftside of the street to avoid a team approaching at a rapid rate up a 
 side street making an accident with an approaching motorcycle unavoid- 
 able.«= 
 
 § 1505. Subsequent negligence by person injured."' — In Whar- 
 ton on Homicide,"^ it is said : 
 
 "If a wound or injury is inflicted which is adequate and cal- 
 culated to cause death, and death ensues as the result of the 
 
 siSuUivan v. Smith, 123 Md. 546; 91 Atl. 4S6, 8 N. C. C. A. 378 
 
 s^Koenig v. Sproesser, 161 Wis. 8; 152 N. W. 473- 
 
 «3i29 N. Y. App. Div. 313, 113 N. Y. S. 786. 
 
 ««Blado v. Draper, 89 Neb. 787, 132 N. W. 410. 
 
 «6Hazzard v. Carstairs, 244 Pa. St. 122 ; 90 Atl. 556. 
 
 eeSee §§ 950, 1007. 
 
 "3d ed., sec. 36. 
 
 951 
 
§ IS06 CRIMINAL NEGLIGENCE 
 
 wound, the person who inflicted it cannot exonerate himself 
 from criminal liability by showing that some conduct or negli- 
 gence of the wounded or injured man or his attendant lessened 
 the chances of his surviving his injuries, and thus caused the 
 death. And the rule is the same though it appears that the de- 
 ceased might have recovered if he had taken proper care of him- 
 self. It is no defence that the deceased or his companions ,by 
 their own negligence, contributed to the result, if the result 
 would not have happened without the misconduct of the ac- 
 ' cused.""' 
 
 In Com. V. Hackett,"" Chief Justice Bigelow says : 
 
 "We have looked with care into the authorities * * * 
 relating to the unskilful or improper treatment of the wounds al- 
 leged to have been inflicted by the prisoner upon the body of the 
 deceased. We find them to be clear and uniform from the 
 earliest to the latest decisions." 
 
 1506, 
 1S07. 
 1508. 
 1509. 
 
 IS 1 1 
 1512. 
 1513 
 1514. 
 1515. 
 1516. 
 
 VI. Individuals Responsible. 
 
 Driver primarily responsible. 
 
 Rule of joint responsibility. 
 
 Accomplices. 
 
 Rule of joint responsibility as applied to passengers. 
 
 Misdemeanors. 
 
 Accessories and conspiracy. 
 
 Accessories. 
 
 Conspiracy. 
 
 NewT York statutes relating to crimes of negligence and accessories. 
 
 Culpable negligence in New York. 
 
 Conspiracy under New York statutes. 
 
 § 1506. Driver primarily responsible. — Responsibility for accident 
 both by law and natural impulse, is attached in the first instance, to 
 the person who was in actual control of the motive power of the vehicle 
 at the time the misfortune occurred, in other words, to the chauffeur. 
 Whatever may, in law, be said concerning the liability of other occu- 
 pants of the car, the chauffeur is chargeable as the actor principal. The 
 general rule is that "to render a person guilty of homicide because of the 
 
 s^Com. V. Hackett, 84 Mass. 140; Com. v. Macloon, loi Mass. 7; State v. 
 Smith, 10 Nev. 123. 
 «984 Mass. 140- 
 
 952 
 
INDIVIDUALS RESPONSIBILE § I507 
 
 performance of a negligent act causing death, the negligent act must 
 have been his personal, individual act."'" 
 
 In the chapter on Agency, and in the chapter on the Chauffeur, atten- 
 tion was called to the fact that the operator cannot excuse himself on 
 the ground that the act of neglect arose from obedience to instructions 
 from an official superior.''^ 
 
 In this connection read Reg. v. Elliott," and Lewis v. Amorous," 
 where the court say that "the persons immediately responsible will be 
 held to full liability" criminal as well as civil. 
 
 In Com. V. Cook,^* Mr. Justice Dreher charged the jury: 
 
 "And here I may say to you that it is not necessary that the 
 collision and deadi should be the result exclusively of the 
 defendant's negligence. If his negligence concurring with the 
 negligence of any other employe of the company, contributed 
 in any measurable degree to the accident, he is, in the eye of 
 the law, as guilty as if his own negligence had solely caused the 
 collision. If the defendant be guilty of negligence, the negli- 
 gence of * * * the other engineer, * * * or the negli- 
 gence of any other employe of the company would not excuse or 
 exempt the defendant from responsibility ."'° 
 
 § 1507. Rule of joint responsibility. — "It is no defence to one 
 charged with manslaughter for contributing to the death of another 
 by his negligence, that the death was caused by the negligence of 
 others as well as himself, since if the death was caused partly by his 
 negligence and partly by the negligence of others, they are all guilty 
 of manslaughter. It is immaterial that others, by their negligence, 
 contributed to cause the death in question, where the act of the ac- 
 cused was one of the primary causes. * * * But * * * the death 
 in question * * * must have been the direct result, wholly or in 
 part, of his negligence, and his negligence must have been wholly or 
 in part, the proximate and efficient cause, where the negligence of 
 
 ™ Wharton on Homicide, 3d ed., sec. 480; Reg. v. Taylor, 9 Car. & P. 672. 
 '^See §§ 254-256. Wharton on Homicide, 3d ed., sec. 466 ; People v. Melius, i 
 N. Y. Crim. 39. 
 "16 Cox C. C. 714- 
 "3 Ga. App. so, 59 S. E. 340. 
 7*8 Pa. Co. Ct. R. 486, 488. 
 "See also State v. Watson, 216 Mo. 420, 115 S. W. Repr. loii. 
 
 953 
 
§ 1508 CRIMINAL NEGLIGENCE 
 
 some other party has intervened between his act or omission and the 
 fatal result."" 
 
 The rules just stated, however, by no means exclude all persons 
 other than the actual perpetrator from participating in the crime, 
 and being held responsible therefor. The common law describes such 
 persons in their relation to crimes of murder, burglary, arson, and 
 the like, as accomplices, or accessories, or conspirators." 
 But the law is not eager to fasten upon one man a criminal pen- 
 alty for the felonious act of another.'* 
 
 § 1508. Accomplices. — An "accomplice" according to Webster, is 
 "an associate in the commission of a crime; a participator in an of- 
 fence, whether a principal or an accessory." Soule, in his "Diction- 
 airy of English Synonyms," gives as equivalents of "accomplice," the 
 words "confederate, accessory, abbettor, associate (in a crime), par- 
 itceps criminis, socius criminis." In Bouvier's Law Dictionary 
 (Ramies), it is said that an accomplice, as the word is used in crim- 
 inal law, is: 
 
 "One who is concerned in the commission of a crime. The 
 term in its fullness, includes in its meaning, all persons who 
 have been concerned in the commission of a crime, all particeps 
 criminis whether they are considered in strict legal propriety 
 as principals in the first or second degree, or merely as ac- 
 cessaries before or after the fact." (Citing EngUsh authority.) 
 
 Mr. Justice Brooks in Mitchell v. The State," remarks: 
 
 "The distinction between accomplice and principal is a vex- 
 ing one to always maintain. The general rule, however, seems 
 to be that the act of the accomplice is a consummated act at 
 the time the crime is committed. The act of the principal is 
 somewhat in the nature of a continuous act." 
 
 T^Wharton on Homicide, 3d ed., sec. 481. 
 
 Ainsworth v. United States, i App. Cas. D. C. 525; Belk v. The People, 125 
 111. S90, 17 N. E. 744; State v. Shellady, 8 Iowa 505; Reg. v. Haines, 2 Car. &K. 
 368 (Eng.) ; Reg. v. Swindall, 2 Car. & K. 230, 2 Cox C. C. 141 (Eng.) ; Queen 
 V. Ledger, 2 Post. & F. 857 (Eng.) ; Reg. v. Benge, 4 Post. & F. 504 (Eng.). 
 
 7'See also Provincial Motor Cab Co. v. Dunning, 2 L. R. K. B. 599, June, 1909. 
 
 'sPeople V. Scanlon, 132 N. Y. App. Div. 528, 117 N. Y. S. 57. 
 
 '944 Tex. Crim. R. 228, 70 S. W. 208. 
 
 954 
 
INDIVIDUALS RESPONSIBILE § ISO9 
 
 A person is not an accomplice in law, who participates only in the 
 moral ofifence, for which he could not be indicted.'" 
 
 From the foregoing, it appears, that the word is generic in its sig- 
 nificance, comprising individuals whom the law divides into classes, 
 each class being amenable to a system of rules peculiarly its own.*^ 
 
 § 1509. Rule of joint responsibility as applied to passengers. — 
 It not infrequently happens that the person who actually commits a 
 crime, is but the mere instrument of a master mind or superior au- 
 thority, to whose dominating will he bows, or in whose suggestions 
 he acquiesces, or to whose influence he succumbs. It is important to 
 ascertain the relation borne by those who instigate them, to crimes 
 coming of so-called negligence. From the present review will be 
 omitted all question growing out of the relation of principal and 
 agent, master and servant, and other domestic relations, such being 
 the subject of another chapter.'^ 
 
 The matter is thus left clear to consider the degree of liability, if any, 
 which will attach to an occupant of the vehicle (a "passenger") for a 
 crime committed by the chauffeur in the course of operation. 
 
 It is apparent that there may be occasions when no criminal lia- 
 bility whatever will exist on the part of the passenger, as in the 
 case of a child or of a person, wholly ignorant of the vehicle and pas- 
 sive concerning its operation.** On the other hand, where the passenger 
 is in control of the operator or instigates, encourages or assents to the 
 illegal act which results in accident, justice seems to require that in 
 some degree responsibility shall fall upon such passenger as particeps 
 criminis.^* 
 
 § 1 5 10. Misdemeanors.'" — Where the offence committed does not 
 rise above misdemeanor there are no degrees of responsibility. "All 
 concerned, whether instigators or perpetrators" are principals, and 
 subject to indictment as such.'" 
 
 soDunn v. The People, 29 N. Y. 523, 527, Denio, C. J. 
 siProvincial Motor Cab Co. v. Dunning, 2 L. R. K. B. 599. 
 «2See Chapter XXXI. 
 
 '^Sherwood v. New York City Central R., 120 N. Y. App. Div. 639, 105 N. Y. 
 Supp. 547. 
 8*Simeone v. Lindsay, 65 Atl. Repr. 778, 780 (Del.) 1907. 
 s^See § 446. 
 86Wharton's Criminal Law, loth ed., sec. 223 ; New York Penal Code, sec. 31. 
 
 955 
 
§ 151 1 CRIMINAL NBGUGENCB 
 
 In Com. V. Sherman,^^ the defendant, the owner of an automobile 
 in which he was a passenger, was convicted of overspeeding. No 
 other allegations were made. The court, by Mr. Justice L,oring, say: 
 
 "If the defendant is guilty here he is guilty not as owner, 
 but because the evidence warranted the jury in finding as a fact 
 that he participated in the vehicle being run at an illegal speed. 
 The offence with which he stands charged is a misdemeanor and 
 not a felony. Not being punishable by imprisonment in the 
 state prison (St. 1905, c. 311, sec. 5, amending St. 1903, c. 473, 
 sec. 9), it is a misdemeanor (R. L. c. 215, sec. i). * * * it 
 is settled that in misdemeanors there are no degrees, but that all 
 who participate in the commission of the offence are principals 
 and may be charged as such." (citing authorities).** 
 
 § 151 1. Accessories and conspiracy in general. — In the light of 
 the preceding sections the inquiry concerning co-responsibility is 
 narrowed to cases where the crime committed amounts in degree to 
 felony. In order sharply to define the point to be investigated, suppose 
 a passenger, not occupying the relation of owner or employer, incites 
 and even urges the chauffeur (both being intelligent men) to drive in 
 a crowded thoroughfare, at a speed so much greater than is reasonable 
 as to amount to reckless operation {malum in se), in consequence of 
 which a pedestrian is struck and killed. The situation presents the 
 crime of involuntary manslaughter and a felony, with the actor driver 
 as principal and the passenger as the inciting and abetting cause.*' 
 
 At first glance, two questions suggest themselves, to wit: (i) Does 
 the passenger stand in the attitude of an accessory? Or (2) is his 
 attitude that of a party to a conspiracy to do an unlawful act, that 
 is to say, reckless overspeeding, resulting in an unexpected felony? 
 
 § 1512. Accessories.'" — At common law an accessory is a person 
 who in any way or by any means, aids, abets or encourages the commis- 
 sion of a crime, or, after its consummation, conceals it or shields the 
 
 8^191 Mass. 439> 44°, 78 N. E. 98. 
 
 88See DuCros v. Larabourne, 76 L. J. N. S. (K. B.) 50; Provincial Motor Cab 
 Co. V. Dunning, 2 L. R. K. B. 599. 
 
 ssPor somewhat analogous facts see Routledge v. Rambler, Tex. Civ. App., 95 
 S. W. Repr. 749- 
 
 ""See § 933 et seg. 
 
INDIVIDUALS EESPONSIBILE § ISI2 
 
 perpetrator from justice. Accessories are of two kinds, namely, "ac- 
 cessories before the fact," and "accessories after the fact."" 
 
 The common law recognizes a variety of refinements in applying 
 the law of principal and accessory, and to such an extent have they 
 been carried, as, occasionally, to work miscarriage of justice. Dr. 
 Wharton,'^ opens his chapter on "Accessaryship" by speaking of the 
 delicate discriminations of the common law in this regard as follows: 
 
 "The obstructions of justice caused by these subtleties have 
 long, been deplored, and while in several of the states of the 
 American Union it is already provided by statute that access- 
 ories before the fact are to be proceeded against as principals, 
 in other states and in England, the change will probably not 
 be long delayed." 
 
 On the subject of penal liability for crimes growing out of negli- 
 gence, and the degree of responsibility of each when two or more 
 persons are concerned therein, the states may be separated into two 
 groups. In one there remains a general adherence to the principles 
 of common law concerning such crimes and to its rules relating to 
 accessories and conspiracy; while in the other are to be found those 
 states wherein the whole subject is a matter of statute. Massachu- 
 setts is in the first mentioned class and New York in the other. Even 
 in those states which may be spoken of as the common law jurisdic- 
 tions, there has been some modification of the law relating to acces- 
 sories, but these changes are not very material to the present purpose. 
 
 The statutes in Massachusetts introducing some change in the com- 
 mon law, may be regarded as generally illustrative of the last men- 
 tioned group of states. Rev. Laws, Chap. 215, entitled "Of Felonies, 
 Accessories and Attempts to Commit Crime." 
 
 Sec. 2. "Whoever aids in the commission of a felony, or is 
 accessory thereto before the fact by counselling, hiring or other- 
 wise procuring such felony to be committed, shall be punished 
 in the manner provided for the punishment of the principal 
 felon." 
 
 Sec. 3 provides that an accessory before the fact may be "in- 
 dicted and convicted" as such "either with the principal felon 
 
 s^Wharton Criminal Law, loth ed, sec. 225, et seq. 
 92Criminal Law, loth ed., sec. 205. 
 
 957 
 
§ I512 CRIMINAI, NfiGUGENCE 
 
 or after his conviction, or may be indicted and convicted of a 
 substantive felony, whether the principal felon has or has not 
 been convicted, or is or is not amenable to justice." He "may 
 be indicted, tried and punished in the same county in which the 
 principal felon might be indicted and tried, although the coun- 
 selling, hiring or procuring the commission of such felony was 
 committed within or without this commonwealth or on the high 
 seas."'^ 
 
 In a number of the states other than Massachusetts where the stat- 
 utes are in effect similar to that quoted, the expression "accessory 
 before the fact" has been abolished and in its place has been substi- 
 tuted the expression "principals in the second degree." In cases 
 of wilful murder this is a distinction without much difference for the 
 punishment is the same in both degrees.^* 
 
 "A principal in the first degree, is one who is the actor or principal 
 perpetrator of the deed, either acting personally or through an inno- 
 cent agent."*' 
 
 "Principals in the second degree are those who are actually or 
 constructively present, aiding and abetting in the commission of the 
 criminal act in question, but not actively participating in it," — in 
 other words, accessories before the fact."* A close examination of the 
 statutes quoted, discloses that they go no farther in their modification 
 of the common law than to change the manner of its enforcement. 
 The real status of an accessory before the fact remains as at common 
 law, and as much unchanged as though these statutes had no existence. 
 
 The case of Brown v. Perkins,'^ was one of trespass and in tort. 
 A considerable number of persons was present though but few were 
 actively engaged. The defendant admitted being present but denied 
 actual participation. Chief Justice Bigelow, who wrote the opinion of 
 the Supreme Court, speaking of accessories, says : 
 
 "The true rule on that point is this: any person who is 
 present at the commission of a trespass, encouraging or excit- 
 ing the same by words, gestures, looks, or signs, or who in any 
 
 s'ln this connection see Com. v. Knapp, 26 Mass. 496. 
 
 9*Wliarton on Homicide, 3d ed., sec. 46; Wharton's Criminal Law, loth ed., 
 sec. 221. 
 9»Wharton on Homicide, 3d ed., sec. 42. 
 B8Ibid. sec. 45. 
 8783 Mass. gJS. 
 
 958 
 
INDIVIDUALS RESPONSIBILE § I5I2 
 
 way or by any means countenances or approves the same, is in 
 laviT deemed to be an aider and abettor, and liable as principal ; 
 and proof that a person is present at the commission of a tres- 
 pass without disapproving or opposing it, is evidence from 
 which in connection with other circumstances, it is competent 
 for the jury to infer that he assented thereto, lent to it his 
 countenance and approval, and was thereby aiding and abetting 
 the same." 
 
 Applying what has been said to the facts stated in the illustration 
 offered in the outset,'^ we find that our assumed case, apparently 
 presents the instigating passenger as an accessory before the fact, 
 otherwise a principal in the second degree." He is, however, in the 
 common law states as far away from that relation to the felony as 
 though the statutes quoted had no existence, because, under the com- 
 mon law, "there can be no aider or abettor in the commission of in- 
 voluntary manslaughter. A person will not be held responsible for 
 the act of another causing death, unless such act was designed either 
 directly or consequentially to hurt or injure some one."^^ 
 
 We have seen that involuntary manslaughter is the accidental, un- 
 designed and unexpected killing of another while the slayer is en- 
 gaged in the performance of an unlawful act. The situation thus pre- 
 sented leaves in a helpless position the argument to fasten criminal 
 responsibility for the felony upon the passenger as an accessory. 
 Neither the chauffeur nor the instigating and abetting passenger en- 
 tertained a design of doing hurt, yet the instrument of the latter 's 
 design to do the unlawful act of overspeeding, is guilty of a felony, 
 while he whose procurement brought the felony to pass, is guilty only 
 of participating in the violation of a speed law {malum prohibitum) . 
 
 The case of Adams v. The State,"" is a fair illustration of the defeat 
 of justice that happens because of this discrimination. Four de- 
 fendants were jointly indicted for the murder of a man upon whom 
 they had committed an assault in an effort to take from him a pistol. 
 During the brawl the pistol was accidentally discharged and its owner 
 
 »»Sec. 1511. 
 
 '^Wharton on Homicide, 3d ed., sec. 47. 
 
 *But see opinion of Lord Alverstone, C. J., in Provincial Motor Cab Co. v. 
 Dunning, 2 L. R. K. B. 599, June, 1909, Collection of Cases No. S246A. See The 
 King V. Plummer (Holt, C. J.), 12 Mod. 609, Case 1031 (Eng.). 
 
 "065 Ind. S74. 
 
 959 
 
§ 15 13 CRIMINAL NEGLIGENCE 
 
 killed. The jury acquitted three of the accused and returned a verdict 
 of guilty of manslaughter against the defendant Adams. Upon appeal, 
 the Supreme Court discharged the appellant of all connection with 
 the crime except in so far as being present, participating, aiding and 
 abetting in the assault, and then discharged him as to that under the 
 common law rule. The following is the language of the court on this 
 point : 
 
 "Can there be an aider and abettor in a case of involuntary 
 manslaughter? It seems clear to us that" (this question) 
 "must be answered in the negative. An aider and abettor is 
 one who assists another in the accomplishment of a common de- 
 sign or purpose ; he must be aware of, and consent to, such de- 
 sign or purpose. But as we have seen, in involuntary man- 
 slaughter, the killing is done without any design or purpose 
 of killing; and if the perpetrator of the crime had no design 
 or purpose of committing it, it is very certain, we think, that 
 there could be no aider or abettor." 
 
 It was such results as this that led Dr. Wharton to deplore the sub- 
 tleties in the common law of principal and accessory, and influenced 
 legislation in the states that have broken away from it on this subject. 
 
 § 1513. Conspiracy.^ — The common law of conspiracy, while not 
 free from doubt when applied to the case suggested in § 1511, pre- 
 sents no such insurmountable difificulty as has been found to exist in 
 the law of accessoryship. Webster^s Dictionary defines the word 
 "conspire" to mean "to make an agreement, especially a secret agree- 
 ment, to do some act, as to commit treason or a crime, or to do some 
 unlawful deed;" and the word "conspiracy" to mean "a combina- 
 tion of men for an evil purpose; an agreement between two or more 
 persons, to commit a crime in concert." The same authority declares 
 the definition in law, to be "an agreement manifesting itself in words 
 or deeds, by which two or more persons confederate to do an unlawful 
 act, or to use unlawful means to do an act which is lawftri." The 
 word "conspirator" is stated to apply to "one who engages in a 
 conspiracy."^ Mr. Justice Shelby, in Wright v. United States,' some- 
 what elaborately discusses the definition of the word "conspire" as used 
 
 ^See § 933. 
 
 2See also to same effect the Standard and Century Dictionaries. 
 
 S108 Fed. Repr. 809. 
 
 960 
 
INDIVIDUALS RESPONSIBILB § 1513 
 
 in the Federal Revised Statutes concerning conspiracy, citing tiie dic- 
 tionaries, and concludes that when Congress used the word, it em- 
 ployed it "as it is used by English writers and speakers."* 
 
 Wharton,^ informs us that of itself and irrespective of its outcome, 
 conspiracy "is a misdemeanor at common law." And in sec. 423 (on 
 Homicide), it is said: "It is immaterial, however, whether the con- 
 spiracy or concert was by pre-arrangement or entered into on the 
 emergency," or "an instantanceous compact."" 
 
 Applying the facts of the hypothetic case,^ to the definitions given, 
 we find (i) an agreement to do an unlawful and indictable act sug- 
 gested by the passenger and concurred in by the operator, to wit, 
 overspeeding to the point of recklessness; (2) that such agreement 
 was in effect secret, that is, known only to the occupants of the vehicle, 
 and unknown to those whom it most concerned, to wit, the traveling 
 public who were thus left unguarded from the effects of the combina- 
 tion; (3) the consummation of the confederacy by the overt act, name- 
 ly, the unlawful speeding, as an incident of which the homicide oc- 
 curred ; (4) the actual presence of both the conspirators from inception 
 to final consummation. There was, however, no actual design on the 
 part of either confederate to kill the deceased, or anyone else. Their 
 actual concert went no further than the unlawful act of overspeeding, 
 and on this only their minds actually met. As to all else it was alto- 
 gether fortuitous. Because of the absence of a previous design on the 
 part of the instigating confederate, is he upon common law principles 
 of conspiracy, left in a similar situation to that in which the same law 
 places him in its rules concerning accessories ? 
 
 There can be nothing in the relation of passenger and chauffeur 
 incompatible with the idea of conspiracy. Our definitions exclude no 
 one, and Dr. Wharton* informs us only of one exception, namely, 
 husband and wife, they "being in the law but one person," and there- 
 fore, incapable of forming a conspiracy.' 
 
 *See also State v. Slutz, 106 La. 182, 30 South Repr. 299 (La.) . 
 
 'Criminal Law, loth ed., sec. 1337. 
 
 *Ibid. sec. 424. 
 
 '§ iSn. 
 
 ^Criminal Law, loth ed., sec. 1392. 
 
 *But see the same author on Homicide, sec. 423, where it is said, that in the 
 absence of statute, a husband and wife may conspire together to do an unlawful 
 act ; also Sikes v. Johnson, 16 Mass. 389, as to married women and minors being 
 capable of conspiracy. 
 
 961 
 61 
 
§ 1 5 13 CRIMINAL NEGUGSNCE 
 
 In Com. V. Hunt/" Chief Justice Shaw says: 
 
 "We have no doubt, that by the operation of the constitu- 
 tion of this Commonwealth, the general rules of the common 
 law making conspiracy an indictable offence, are in force here." 
 * * * But the great difificulty is in framing any definition or 
 description, to be drawn from the decided cases, which shall spe- 
 cifically identify this offence — a description broad enough to 
 include all cases punishable under this description, without in- 
 cluding acts which are not punishable. Without attempting 
 to review and reconcile all the cases, we are of the opinion that 
 as a general description, though perhaps not a precise and ac- 
 curate definition, a conspiracy must be a combination of two 
 or more persons, by some concerted action, to accomplish some 
 criminal or unlawful purpose, or to accomplish some purpose, 
 not in itself criminal or unlawful, by criminal or unlawful 
 means. We use the terms criminal or unlawful because it is 
 manifest that many acts are unlawful which are not punish- 
 able by indictment or other public prosecution; and yet there 
 is no doubt, we think, that a combination by numbers to do 
 them would be an unlawful conspiracy and punishable by in- 
 dictment. * * * 
 
 "But yet it is clear that it is not every combination to do un- 
 lawful acts to the prejudice of another by a concerted ac- 
 tion, which is punishable as conspiracy * * * The con- 
 clusion to which Mr. Chitty comes in his elaborate work on 
 Criminal Law, Vol. Ill, p. 1140, after an enumeration of the 
 leading authorities is, that 'we can rest therefore only on the 
 individual cases decided, which depend in general, on particu- 
 lar circumstances, which are not to be extended.' * * * And 
 Chitty adds, 'the object of conspiracy is not confined to any im- 
 mediate wrong to individuals ; it may be to injure public trade, 
 to affect public health, to violate public police, to insult public 
 justice, or to do any act in itself illegal.' * * *^^ 
 
 "Several rules upon the subject seem to be well established, 
 to wit, that the unlawful agreement constitutes the gist of the 
 offence, and, therefore, that it is not necessary to charge the 
 execution of the unlawful agreement. Commonwealth v. Judd, 
 2 Mass. 337. And when such execution is charged, it is to be 
 regarded as proof of the intent, or as an aggravation of the 
 criminality of the unlawful combination}^ 
 
 i»4S Mass. 121. 
 
 "See § IS"- 
 
 i^The italics are by the author of this book. 
 
 962 
 
INDIVIDUALS RESPONSIBILE § 1513 
 
 "Another rule is a necessary consequence of the former, which 
 is, that the crime is consummate and complete by the fact of 
 the unlawful combination, and therefore, that if the execution 
 of the unlawful purpose is averred, it is by way of aggrava- 
 tion, and proof of it is not necessary to conviction; and there- 
 fore the jury may find the conspiracy and negative the execu- 
 tion, and it will be a good conviction." 
 
 Com. V. Kingsbury,^* was a case of conspiracy to commit a felony, 
 in which the jury found a verdict of guilty. The Attorney-General 
 "argued that the conspiracy was a complete ofifence by itself before it 
 was carried into effect, and therefore is not merged in the felony." 
 Chief Justice Parsons, speaking for the court, says: 
 
 "We have considered this case and are of opinion that the 
 misdemeanor is merged. Had the conspiracy not been effected 
 it might have been punished as a distinct offence, but a con- 
 trivance to commit a felony and executing the contrivance, can- 
 not be punished as an offence distinct from the felony, because 
 the contrivance is a part of the felony when committed pur- 
 suant to it. 
 
 The law is the same respecting misdeameanors. An intent to 
 commit a misdeameanor manifested by some overt act, is a mis- 
 demeanor, but if the intent be carried into execution, the of- 
 fender can be punished but for one offence."" 
 
 Wharton (on Homicide),'^ says of conspiracy: 
 
 "The subject of homicide resulting from conspiracy to do 
 an unlawful act, though closely allied to that of aiding and 
 abetting homicide, is distinguished from it in that an aider and 
 abettor must be present, either actually or constructively aid- 
 ing in the commission of the very act, and an accessory must 
 have advised or procured the very act itself ; while in the case 
 of conspiracy, the concert or conspiracy is usually to do some 
 other unlawful act not including the commission of homicide, 
 but from which homicide results ; and conspiracy involves pre- 
 vious arrangement to do an unlawful act,"^" while aiding and 
 abetting involves no previous arrangement." 
 
 18$ Mass. 107. 
 
 i*See Wharton's Criminal Law, loth ed., sec. 1344. 
 
 153d ed., see. 417. 
 
 iBThe italics are by the author of this book. 
 
 963 
 
§ 1513 CRIMINAL NEGUGENCB 
 
 In sec. 418," the following appears : 
 
 "The general rule is that, when several personis conspire or 
 combine together to commit an unlawful act, and a homicide 
 results, each is criminally responsible for the act of the asso- 
 ciates or confederates, if committed in furtherance or in prose- 
 cution of the common design for which they combined. And 
 the rule is the same in such case whether or not the person 
 sought to be held was present at the time of the homicide, and 
 whether he or a co-conspirator did the deed. Nor is his respon- 
 sibility affected by the fact that homicide was not the result 
 intended, or within the contemplation of the parties as a part 
 of the original design}^ And it is no defence that the co- 
 conspirator sought to be charged forbade his associates to kill 
 or that he disapproved of the killing, or regretted that any 
 person was slain. Where one person combines with another to 
 do an unlawful act, he impliedly consents to the use of such 
 means by his confederates as may be necessary or usual in the 
 successful accomplishment of such act, and if such means in^ 
 volve a homicide, he will be criminally responsible therefore. 
 In such case they are deemed in law to be parties to all acts 
 done by each in furtherance of the common design, before and 
 afterwards, as well as at the time it was formed."^' 
 
 In sec. 427, the author says: 
 
 "The rule of criminal responsibility for the acts of others 
 done in the prosecution of an unlawful project, is subject to the 
 limitation that the particular act of one of a party for which 
 the associates and confederates are to be held liable must have 
 been done for the furtherance, or in the prosecution, of the 
 common object and design for which they combined together. 
 There can be no criminal responsibility on the part of a co- 
 conspirator for a death resulting from something which is not 
 fairly within the common enterprise, and which might not be 
 expected to happen if occasion should arise for any one to 
 cause it.*" The true test as to the responsibility of one person 
 for a homicide committed by another is — ^^did the parties act 
 together, and was the act done in pursuance of a common de- 
 sign and purpose in which their minds had met and agreed?"^" 
 
 "Ibid. 
 
 i«The italics are by the author of this book. 
 
 i^See also Ibid. sec. 70, et seq., and sec. 215. 
 
 2oSee also Ibid. sec. 428, as to scope of a conspiracy, and Mr. Justice Holmes' 
 description of negligence in Schlemmer v. Buffalo, etc., Ry., 205 U. S. 12. See 
 Conrad v. State of Ohio, 75 Ohio St. 52, 78 N. E. 957. 
 
 964 
 
INDIVIDUALS Ri;SPONSIBII,B § I513 
 
 The "common enterprise," and the "common design," as shown by 
 the facts in the supposed case," were to drive recklessly. Each one 
 knew to the same extent as the other what "might be expected to 
 happen should occasion arise." Both contemplated the doing of a 
 wrong. On general juridical principals each was responsible for all 
 the natural and ordinary consequences of that wrong.^^ The act of the 
 chauffeur was merely the administrative function of prosecuting and 
 completing the common purpose. It was within the actual design of 
 neither to kill anybody, but each knew as well as the other, that such 
 a catastrophe might be the result of their joint enterprise, and was 
 fairly within its possibilities ; both were charged with knowledge that 
 the act which they concurred in doing, put the lives of other travelers 
 in jeopardy and risked the "safety of the public."^' 
 
 It is to be remembered that the case suggested in the outset,^* was 
 not one of simple overspeeding (malum prohibitum), it was a case 
 of gross and wanton negligence and recklessness (malum in se), not 
 innocent in itself, but culpable. Even if it is assumed that the act 
 was not criminal per se, and that the conspiracy between the passenger 
 and the driver was only to do an act innocent in itself though pro- 
 hibited still it would be a matter for the jury to determine whether 
 there was or was not any criminal intent. If that fact is found affirm- 
 atively, then a conviction for conspiracy may ordinarily be justified. 
 In People v. Powell,^' where the indictment was laid and the conviction 
 had for conspiracy to neglect an official duty in failing to advertise 
 for proposals for contracts, Mr. Justice Andrews says : 
 
 "The general rule is, that to constitute a crime there must 
 not only be the act, but also the criminal intention; and these 
 must concur, the latter being equally essential with the former 
 (Grover, J., in Stokes v. People, 53 N. Y. 179), and the intent 
 is to be found by the jury. But where a man is indicted for 
 doing a prohibited act, he will not be allowed to say that he 
 did not know of the existence of the law he had violated. The 
 
 "Sec. 15x1. 
 
 22Com. V. Temple, 80 Mass. 69, 78. 
 
 23See United States v. Boyd, 43 Fed. Repr. 851, 860; Ccim. v. Hawkins, 157 
 Mass. SSI, SS3, 32 N. E. 862. 
 2*Sec. 1511. 
 2S63 N. Y. 91. 
 
 965 
 
§ I513 CRIMINAI, NEGLIGENCE 
 
 offence in cases of mala prohibita, is complete when the act is 
 intentionally done,^^ irrespective of any actual intention to 
 violate the law. * * * 
 
 "But to make an agreement between two or more persons, to 
 do an act innocent in itself a criminal conspiracy, it is not 
 enough that it appears that the act which was the object of the 
 agreement was prohibited. The confederation must be corrupt. 
 * * * Mere concert is not conspiracy. Persons who agree to 
 do an act innocent in itself, in good faith and without the use of 
 criminal means, are not converted into conspirators, because 
 it turns out that the contemplated act was prohibited by statute. 
 
 "The actual criminal intention belongs to the definition of the 
 offence, and must be shown to justify a conviction for con- 
 spiracy. ***!(• ^as open for the jury to find, upon evi- 
 dence, that no criminal intention existed." 
 
 The act referred to in this decision was, as stated, "innocent in 
 itself," and therefore to be distinguished from an act of reckless 
 driving, which as has been already seen, is an act wrong in its very 
 nature, and criminal irrespective of any statute as being a gross and 
 wanton negligence.^^ 
 
 In sec. 431,^* we find the following, where the conspiracy is one to 
 commit a misdemeanor: 
 
 "And one who conspires with another to commit a mere mis- 
 demeanor, such as an assault and battery with hands and fists 
 not dangerous to life, is not liable for homicide, where the other 
 uses weapons dangerous to life and kills the party assaulted, 
 though the rule is different where the death was caused by a 
 blow of the fist, the killing in such case being the direct result 
 of the conspiracy. "^^ 
 
 2«The italics are by the author of this book. 
 
 2fSee also the following: Com. v. Pierce, 138 Mass. 175; Com. v. Hawkins, 
 157 Mass. S33, 32 N. E. 862; Com. v. Parsons, 195 Mass. 569, 81 N. E. 291; 
 People V. Pearne, ri8 Cal. 154, SS Pac. 376; Robinson v. Simpson, 32 Atl. 
 Repr. 287 (Del.) ; Morris v. The State, 35 Tex. Crim. 317, 33 S. W. S39; 
 Reg. V. Swindall, 2 Car. & K. 230; Reg. v. Mastin, 6 Car. & P. 396; Rex. 
 V. Walker, i Car. & P. 320; Reg. v. Murray, 5 Cox. C. C. 510; Reg. v. Jones, 
 II Cox. C. C. 544; Wharton's Crim. Law, loth ed., sees. 341, 354, 355; Wharton 
 on Homicide, 3d ed., sees. 464, 465; Banks v. Braman, 188 Mass. 367, 368; Com. 
 V. Temple, 80 Mass. 69, 74, 76. 
 
 28Wharton on Homicide, 3d ed. 
 
 29The italics are by the author of this book. See also Ibid, sec. 440, and 
 Wharton's Crim. Law, loth ed., chap. XXI, Book II, sec. 1337, et seq. 
 
 966 
 
rNDIVIDUAI,S EESPONSIBII,!; § I5I4 
 
 In this connection, the language of Mr. Justice Holmes, in Com. v. 
 Pierce,'" may be repeated: 
 
 "As implied malice signifies the highest degree of danger 
 and makes the act murder; so, if the danger is less, but still 
 not so remote that it can be disregarded, the act will be called 
 reckless, and will be manslaughter, as in the case of an ordi- 
 nary assault with feet and hands * * * qj- careless driving." 
 
 See also i East, 270 and 271. 
 
 An extended search among the reported cases, has failed to develop 
 any that cast more light on the subject than that thrown by the au- 
 thorities referred to. It cannot be pretended, and it is certainly not 
 to be understood, that the common law of conspiracy as presented, 
 is regarded as definitely determining the passenger's relation to the 
 felony. Such a settlement will have to come from the courts in a 
 proper case.^^ 
 
 As said by Wharton, in the section last quoted, the homicide, to 
 establish the felonious relation, must be a "necessary" or "usual" 
 incident of the confederacy, and at the last, the question will hinge 
 for its determination, upon whether human injury is as "usual" and 
 "direct" a result of reckless driving in crowded thoroughfares, as is 
 manslaughter an "usual" and "direct" result of a conspiracy to en- 
 gage in a fight with fists.'^ 
 
 § 15 14. New York statutes relating to crimes of negligence and 
 accessories. — In the states in which the common law of crimes result- 
 ing from negligence, has been supplanted by statutes, and where the 
 common law concerning the limitations surrounding accessoryship has 
 been abrogated, the difficulties disappear and the position of respon- 
 sibility of every one is easily determined. The following are the New 
 York statutes relative to crimes growing out of negligence and par- 
 ties thereto: 
 
 Penal Code, Title II, "of Parties to Crime." Sec. 28. "A 
 party to a crime is either — i. A principal; or 2. An accessory." 
 
 SOI38 Mass. 175. 
 
 s^See language of Chitty quoted by Shaw, C. J., in Cora. v. Hunt, 45 Mass. 
 121, supra; also Wharton on Homicide, 3d ed., sec. 441. 
 *2See Provincial Motor Cab Co. v. Dunning, 2 L. R. K. B. 599, June, 1909. 
 
 967 
 
§ 1 5 14 CRIMINAI, NUGUGl^NCB 
 
 Sec. 29. "Definition of Principal — "A person concerned in 
 the commission of a crime, whether he directly commits the act 
 constituting the offence or aids and abets in its commission, 
 and whether present or absent, and a person who directly or 
 indirectly counsels, commands, induces or procures another to 
 commit a crime, is a principal." 
 
 Sec. 30. "Definition of Accessory — A person who, after the 
 commission, harbors, conceals or aids the offender," etc., "is 
 an accessory to the felony." 
 
 Sec. 31. "All principals in misdemeanors — A person who 
 commits or participates in an act which would make him an 
 accessory if the crime committed were a felony, is a principal, 
 and may be indicted and punished as such if the crime be a 
 misdeameanor."^^ 
 
 The same Penal Code^* defines manslaughter in the second degree, 
 to be homicide committed "without a design to affect death." Sub- 
 division 3 of that section declares that such a manslaughter may be 
 brought about : 
 
 "By any act, procurement or culpable negligence of any 
 person, which, according to the provisions of this chapter, does 
 not constitute the crime of murder in the first or second degree, 
 nor manslaughter in the first degree." 
 
 Section 195 provides as follows : 
 
 "A person who by any act of negligence or misconduct in 
 a business or employment in which he is engaged, or in the 
 use or management of any machinery, animals or property of 
 any kind, intrusted to his care, or under his control, or by any 
 unlawful, negligent or reckless act, not specified by or coming 
 within the foregoing provisions of this chapter, or the provi- 
 sions of some other statute, occasions the death of a human 
 being, is guilty of manslaughter in the second degree." 
 
 Section 718 containing definitions, is as follows: 
 
 Sub-division i. "Each of the terms 'neglect,' 'negligence,' 
 'negligent,' and 'negligently,' imports a want of such atten- 
 tion to the nature or probable consequences of the act or omis- 
 sion as a prudent man ordinarily bestows in acting in his own 
 concerns." 
 
 ssSee also Wharton's Criminal Law, loth ed., sec. 223. 
 "^Sec. 193- 
 
 968 
 
INDIVIDUALS RgSPONSIBILE § I515 
 
 § 1515. Culpable negligence in New York. — The prosecution, in 
 the case of People v. Buddenseik,^^ was brought under the sections 
 quoted. The facts were that "the defendant was indicted with three 
 others, for the crime of manslaughter committed by culpable careless- 
 ness in the erection of a block of buildings in the city of New York, 
 which "fell and caused the death" of a man. The defendant was con- 
 victed. In affirming the judgment in the trial court, Mr. Justice 
 Daniels, speaking for the Supreme Court in general term, says : 
 
 "The charge against the defendant was that he had, by 
 means of culpable negligence and misconduct in the business 
 in which he was engaged, occasioned the death of the person 
 named in the indictment. And the case was submitted to the 
 jury in the charge of the court, elaborately discussing and ex- 
 plaining this charge" * * * it was finally held and stated that 
 'culpable negligence is the omission to do something which a 
 reasonable and prudent man would do, or the doing of some- 
 thing which such a man would not do, under the circumstances 
 surrounding each particular case.' Or it is the want of such 
 care as a man of ordinary prudence would use under similar 
 circumstances. * * * What the law designed to render 
 criminal was such a careless act or omission on the part of the 
 accused as will endanger the personal safety or life of another, 
 and which, by the exercise of reasonable attention and exertion, 
 would be avoided. As much as that is a duty which every per- 
 son owes to another. And it was upon the failure to observe 
 the requirements of this rule that his liability to conviction by 
 the jury was placed by the court." 
 
 § 1516. Conspiracy under New York statutes. — Penal Code, sec. 
 168 (in part) : 
 
 "If two or more persons conspire either — (i) To commit a 
 crime; or (2) * * *. (3) * * *; (4) * * *; (5) 
 * * * ; (6) to ommit any act injurious to the public morals, 
 or to trade or commerce, or for the perversion or obstruction of 
 justice or of the due administration of the laws ; each of them is 
 guilty of a misdemeanor."^^ 
 
 s5i N. Y. State Repr. 436, affirmed 103 N. Y. 487, 9 N. E. 44- 
 8«The parts not quoted do not apply to our subject. 
 
 969 
 
§ 1515 CRIMINAI, NfiGUGBNCB 
 
 In The People v. Mather,*' Mr. Justice Marcy says : 
 
 "I admit that it is the illegal agreement that constitutes the 
 crime; when that is concluded the crime is perfect, and the 
 conspirators may be convicted if the crime can be proved. No 
 overt act need be shown or even performed to authorize a con- 
 viction." 
 
 »'4 Wend. 259. 
 
 970 
 
CHAPTER XLVIII. 
 
 WILFUI, AND WANTON AND GROSS NEGLIGENCE^ 
 
 § 1517. Described and distinguished. 
 
 1518. Characteristics of various forms. 
 
 1519. Gross negligence. 
 
 1520. Wanton and wilful negligence. 
 
 1521. Functions of the court and of the jury. 
 
 1522. Contributory negligence in such cases. 
 
 1523. Measure of damages in these cases. 
 
 § 1 5 17. Described and distinguished. — Gross negligence and 
 wilful and wanton negligence are distinguished from ordinary negli- 
 gence. There is also a distinction between "wilful and wanton" negli- 
 gence and "gross negligence."^ 
 
 Both ordinary negligence and gross negligence are of a negative 
 quality, the former importing a careless inadvertence, the latter a de- 
 gree of thoughtlessness that runs to the border line of recklessness. 
 Wilful and wanton negligence, however, goes a step farther, and im- 
 plies a positive disregard of the rules of diligence and a reckless heed- 
 lessness of consequences, lacking only in criminal character the element 
 of dirct intent and premeditation, such as would be necessary to con- 
 vert manslaughter into murder. With reference to the distinction be- 
 tween ordinary negligence and gross negligence, Mr. Justice L,athrop, 
 in Galbraith v. West End St. Ry.,^ says : 
 
 "The plaintiff contends that the word "gross' has no more 
 eflfect than the word 'due' or 'ordinary.' But while this view 
 has been adopted in some jurisdictions, it has never been the 
 law here. The term 'gross negligence' means something more 
 than a want of ordinary care." Citing Massachusetts authori- 
 ties both of statute and decision. 
 
 ^As to punitive damages for gross negligence see post § 1762 et seq. Re- 
 sponsibility of employers, § 932 et seq. 
 ^See § 954- 
 8165 Mass. 572, 580, 43 N. E. SOI- 
 
§ I518 WII.PUL AND WANTON AND GROSS NEGLIGENCE 
 
 In Milwaukee, etc., R. v. Arms,* the Supreme Court of the United 
 States, by Mr. Justice Davis, say : 
 
 "Gross neghgence is a relative term. It is doubtless to be 
 understood as meaning a greater want of care than is implied 
 by the term 'ordinary negligence,' but, after all, it means the 
 absence of the care that was necessary under the circum- 
 stances." 
 
 There may be a distinction between "wilfully" and "wantonly."' 
 In the summary contained in the chapter on Negligence in General,' 
 it was attempted to discriminate between the different kinds of acts 
 grouped under "negligence" in the large sense in which jurisprudence 
 uses that word. In a strict conception of the word, it imports a mere 
 omission of duty through inadvertence, whereas "wanton" negligence 
 implies that the person thinks of the probable injurious consequences 
 of his rash act. He intentionally runs a risk of which he is conscious 
 or ought to be conscious, but is indifferent to the results be they what 
 they may. This conception makes it possible to shade "gross" negli- 
 gence out of negligence proper, according as the omission of duty is 
 great and the thoughtlessness culpable. We can also distinguish 
 "wilful" negligence as an expression, because it involves a direct, in- 
 tellectual process to determine upon the act or omission, and conscious 
 effort of the will to put aside the natural impulse to be cautious, con- 
 siderate and needful. AH- of these acts are classed as negligence be- 
 cause in each there is the absence of any distinct intention to produce 
 the precise damage which actually follows as the result of the act or 
 omission.'' 
 
 § 1 5 18. Characteristics of various forms. — The characteristics 
 of these forms of negligence and the distinctions marking them are 
 difficult of precise definition or of exact expression. While speaking 
 of the respective degrees of responsibility growing out of them. Chief 
 Justice Knowlton says, in Banks v. Braman :* "It is not easy to explain 
 
 *9i iU. S. 489, 495- 
 
 ^Adler v. Martin, 179 Ala. 97, 59 So. 597. 
 
 °§ 9S7. 958. See also State v. Campbell, 82 Conn. 671, 74 Atl. 927, and State v. 
 Goetz, 83 Conn. 437, 76 Atl. 1000. 
 
 'See remarks of Mr. Justice Hoar in Howe v. Newraarch, 94 Mass. 49, 535 
 also those of Mr. Justice Avery in McAdoo v. Railroad, 105 N. C. 140. 
 
 8188 Mass. 367, 74 N. E. S94. quoted also ante § 956. 
 
 972 
 
WIIvFUI, AND WANTON AND GROSS NEGUGENCS § 1518 
 
 to a jury the nature of this liability." When one of these forms of 
 negligence is alleged, something more than ordinary negligence or 
 mere carelessness must be shown to establish it. When established, 
 the ordinary rules applying to proximate cause and contributory negli- 
 gence undergo modification. Particularly is this true when the offense 
 was of a wilful and wanton character, for then the offender is, as it 
 were, put on defense for the commission of a crime, this form of 
 negligence being criminal or quasi criminal in its nature. 
 
 The case just cited was one in which a child had been injured by a 
 trolley car. Chief Justice Knowlton, who wrote the opinion of the 
 court, says : 
 
 "It is familiar law that in the absence of a statutory pro- 
 vision mere negligence, whatever its degree, if it does not in- 
 clude culpability different in kind from that of ordinary negli- 
 gence, does not create a liability in favor of one injured by 
 it, if his own negligence contributes to his injury. It is equally 
 true that one who wilfully and wantonly, in reckless disre- 
 gard of the rights of others, by a positive act or careless omis- 
 sion exposes another to death or grave bodily injury, is liable 
 for the consequences, even if the other was guilty of negligence 
 or other fault in connection with the causes which led to the 
 injury. The difference in rules applicable to the two classes of 
 cases results from the nature of the conduct of the wrong- 
 doers in the two classes of cases. In the first case the wrong- 
 doer is guilty of nothing worse than carelessness. In the last, 
 he is guilty of -a wilful, intentional wrong." * * * (Citing 
 Com. V. Pierce, 138 Mass. 165; Com. v. Hartwell, 128 Mass. 
 415). "In an action to recover damages for an assault and 
 battery, it would be illogical and absurd to allow as a defense, 
 proof that the plaintiff did not use ordinary care to avert the 
 blow. See Sanford v. Eighth Ave. Railroad, 23 N. Y. 343, 
 346. It would be hardly less so to allow a similar defense 
 where a different kind of injury was wantonly and recklessly 
 inflicted. A reason for the rule is the fact that if a wilful, 
 intentional wrong is shown to be the direct and proximate cause 
 of an injury, it is hardly conceivable that any lack of care on 
 the part of the injured person could so concur with the wrong 
 as also to be a direct and proximate contributing cause to the 
 injury. It might be a condition without which the injury could 
 not be inflicted. See Newcomb v. Boston Protective Depart- 
 ment, 146 Mass. 596. 
 
 "It might be a remote cause but it could hardly be a cause 
 acting directly and proximately with the intentional wrongful 
 
 973 
 
§ I518 WILFUL AND WANTON AND GROSS NEGLIGENCE 
 
 act of the offender. Judson v. Great Northern Railway, 63 
 Minn. 248, 255. The offense supposed is different in kind from 
 the plaintiff's lack of ordinary care. It is criminal or quasi 
 criminal. Not only is it difficult to conceive of a plaintiff's neg- 
 ligence as being another direct and proximate cause foreign to 
 the first, yet acting directly with it, but it would be unjust 
 to allow one to relieve himself from the direct consequences 
 of a wilful wrong by showing that a mere lack of due care in 
 another contributed to the result. The reasons for the rule 
 as to the plaintiff's care in actions of ordinary negligence are 
 wanting, and at the same time the facts make the rule impos- 
 sible of application. 
 
 "The general rule that the plaintff's failure to exercise ordi- 
 nary care for his safety, is not a good defense to an action for 
 wanton and wilful injury caused by a reckless omission of duty, 
 has been recognized in many decisions, as well as by writers of 
 textbooks." (Citing numerous authorities.) "We have been 
 referred to no case in which it is held that it makes any differ- 
 ence whether the plaintiff's lack of ordinary care is only pre- 
 vious to the defendant's wrong or continuing to the time of it, 
 or whether there is such a lack after the wrong begins to take 
 effect. It is difficult to see how there can be any difference in 
 principle between the two cases. In this Commonwealth as in 
 most other jurisdictions, liability does not depend upon which 
 of different causes contributing to an injury is latest in the time 
 of its origin, but upon which is the direct, active, efficient cause, 
 as distinguished from a remote cause, in producing the result. 
 
 "There are expressions in some of the cases which imply the 
 possibility of contributory negligence on the part of the plain- 
 tiff in a case of wanton and reckless injury by a defendant. If 
 there is a conceivable case in which a plaintiff's want of due 
 care may directly and proximately contribute as a cause of an 
 injury inflicted directly and proximately by the wilful wrong 
 of another, such a want of care must be something different, 
 from the mere want of ordinary care to avoid an injury coming 
 in a usual way. * * * Conduct of a plaintiff which would 
 be negligence precluding recovery if the injury were caused 
 by ordinary negligence of a defendant, will not commonly pre- 
 clude recovery if the injury is inflicted wilfully through wanton 
 carelessness." 
 
 974 
 
WILFUL AND WANTON AND GROSS NEGLIGENCE § I518 
 
 In Bjornquist v. Boston & Albany R.,^" the chief justice, speaking 
 again for the court on this subject, remarks (p. 134) : 
 
 "The conduct which creates a liabiHty to a trespasser in 
 cases of this kind has been referred to in the books in a va- 
 riety of ways. Sometimes it has been called gross negligence, 
 and sometimes wilful negligence. Plainly it is something more 
 than is necessary to constitute the gross negligence referred 
 to in our statutes and in decisions of this court. The term 
 'wilful negligence' is not a strictly accurate description of this 
 wrong. But wanton and reckless negligence in this class of 
 cases includes something more than ordianry inadvertence. 
 In its essence it is like a wilful, intentional wrong. It is illus- 
 trated by an act which otherwise might be unobjectionable, but 
 which is liable or likely to do great harm, and which is done 
 in a wanton and reckless disregard of the probable conse- 
 quences."^^ 
 
 Dr. Thompson^^ says there are "only two kinds of negligence, — 
 negligence and wilful negligence." Into the former class, he casts all 
 cases of carelessness however gross, and in the latter, all conduct 
 "consisting of a wilful and intentional failure or neglect to perform a 
 duty assumed by contract or imposed by operation of law, for the 
 promotion of the safety of the person or property of another." 
 
 The objection of those, who regard the use of the word "wilful" 
 as not strictly accurate, finds its foundation in the idea of intent car- 
 ried by the word "wilful," and "intent" is antipathetic to any nat- 
 ural conception of negligence. Still its use has found place and ac- 
 quired a technical meaning in jurisprudence as closely synonymizing 
 with wantonness of conduct. 
 
 In Georgia Pacific R. v. Lee,^' Mr. Justice McClellan writes for 
 the Supreme Court, in part, on the subject as follows : 
 
 "Such failure to act upon the dictates of prudence and dili- 
 gence * * * is, strictly speaking not negligence at all, 
 though the term 'gross negligence' has been so frequently used 
 in defining it that it is too late, if otherwise desirable, to eradi- 
 
 wi8s Mass. 130, 70 N. E. S3, 102 Am. St. Rep. 332. 
 
 i^See also Dolphin v. Worcester Cons. R., 189 Mass. 270, 75 N. E. 635. 
 
 i^Com. on Negligence, 2d Ed., sec. 21. 
 
 i'92 Ala. 262, 270, 9 So. 230. 
 
 975 
 
§ 1519 WILFUL AND WANTON AND GROSS NEGLIGENCE 
 
 cate what is said to be an unscientific definition if not, indeed, a 
 misnomer; but it is more than any degree of negligence, inat- 
 tention or inadvertence — which can never mean other than the 
 omission of action without intent, existing or imputed, to com- 
 mit wrong — it is that recklessness, or wantonness, or worse, 
 which implies a willingness to inflict the impending injury, or 
 a wilfulness in pursuing a course of conduct which will nat- 
 urally or probably result in disaster, or an intent to perpetrate 
 a wrong." 
 
 Dr. Thompson" speaks of negligence in this form as an "aggressive" 
 wrong, and as unlawful invasion of the right of others to personal 
 liberty and security. 
 
 § 1519. Gross negligence. — Gross negligence implies an aggra- 
 vated kind of negligence, a wanton disregard of consequences.^^ 
 
 If the injury occasioned by the collision result in death the culpable 
 driver may be justly convicted of manslaughter if the collision was 
 caused by such gross carelessness as to imply an indifference to conse- 
 quences.^® 
 
 § 1520. Wanton and wilful negligence. — ^A charge of "wilful 
 and wanton" negligence is not supported by evidence that the plaintifif 
 stepped off the sidewalk as the defendant was approaching and the 
 defendant ran over him where the defendant put on his brakes and 
 did his best to stop the car.^^ 
 
 Mere recklessness does not without more constitute wanton or wilful 
 injury. Exemplary damages are allowable only when the wrong 
 is maliciously perpetrated or where the act was done knowingly, wan- 
 tonly and recklessly, under such circumstances that the wrongdoer 
 knew that the act was fraught with probable injury to person or prop- 
 erty.'* 
 
 Where the pleadings show that plaintiff's claim is that defendant 
 lost control of his automobile and deliberately ran it into the plaintiff's 
 car to stop it, the gist of the action is not negligence but wilfulness 
 
 I "■■""•■■ 
 
 i*Com. on Negligence, 2d ed., sec. 208. 
 
 Instate V. Campbell, 82 Conn. 671, 74 Atl. 927; Banks v. Braman, 188 Mass. 
 
 367, 80 N. E. 799- 
 
 i»Luther v. State, 177 Ind. 619, 98 N. E. 640. 
 
 i^Adler v. Martin, 179 Ala. 97, 59 So. 597. 
 
 i8Bowles V. Lowery, 5 Ala. A. SS5, 59 So. 6g6. 
 
 976 
 
VfllitVl, AND WANTON AND GROSS NEGLIGENCE § 1 52 1 
 
 and evidence of negligence is inadmissible and the instructions should 
 be confined to wilfulness.^' 
 
 § 1 521. Functions o£ the court and o£ the jury. — The character 
 of the negligence, whether merely simple or gross, is usually a question 
 of fact for the jury upon proper instructions by the court.^" 
 
 The judge may leave to the jury to say if the acts causing injury 
 were wilful, wanton, or reckless.''^ 
 
 In a homicide case 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.^' 
 
 § 1522. Contributory negligence in such cases.^^. — "The doc- 
 trine of contributory negligence has no application to wilful and ma- 
 licious injuries."^* 
 
 Nor in cases where the doctrine of imputed negligence might other- 
 wise apply.'^ 
 
 Dr. Thompson^" says : 
 
 "Outside of statutes which exist in one or two states, de- 
 nouncing wilful negligence, some of the cases lay down the doc- 
 trine that an entire absence of care for the life, the person or 
 the property of others, such as exhibits a conscious indiffer- 
 ence to consequences, makes a case of constructive or legal mil- 
 fulness, such as charges the person whose duty it was to exer- 
 cise care, with the consequences of a wilful injury, which conse- 
 quences are generally visited in the form of exemplary dam- 
 ages." 
 
 I'Tognazzini v. Freeman, 18 Cal. App. 468, 123 Pac. 540. 
 
 2»Weiskopf V. Ritter, Wy. 1907, 97 S. W. 1120. 
 
 2iBurns v. Kendall, 96 S. C. 38s, 80 S. E. 621. 
 
 22People V. Barnes, 182 Mich. 179, 148 N. W. 400. 
 
 "^See § 990 et seq. Contributory negligence. 
 
 24Thompson, Com. on Negligence, 2d ed., sees. 247, 383; Clay v. Wood (Eng.), 
 5 Esp. 44, (Lord EUenborough) ; Taxicab & Touring Co. v. Cabiness, 9 Ala. App. 
 549, 63 So. 774 ; Tognazzini v. Freeman, 18 Cal. App. 468, 123 Pac. 54°- 
 
 25Thompson, Com. on Negligence, 2d ed. sec. 299. 
 
 2»Com. on Negligence, 2d ed., sec. 22. 
 
 977 
 62 
 
§ 1523 WILFUL AND WANTON AND GROSS NEGLIGENCE 
 
 Banks v. Braman^^ was a motor vehicle case in which the plaintiff 
 was struck by defendant's automobile in a city street. "Gross negli- 
 gence" was charged, whereby the defendant "wantonly and recklessly 
 injured the plaintiff." Chief Justice Knowlton, in writing the opinion, 
 says: 
 
 "The difference in culpability of the defendant, which dis- 
 tinguishes these different kinds of liability is something more 
 than a mere difference in the degree of inadvertence. In one 
 case there need be nothing more than a lack of ordinary care, 
 which causes an injury to another. In the other case there 
 is wilful, intentional conduct whose tendency to iqijure is 
 known, or ought to be known, accompanied by a wanton and 
 reckless disregard of the probable harmful consequences from 
 which others are likely to suffer, so that the whole conduct to- 
 gether is of the nature of a wilful, intentional wrong. * * * 
 The ground on which it is held that, when an act of the de- 
 fendant shows an injury inflicted in this way, the plaintiff need 
 introduce no affirmative evidence of due care, is that such a 
 wrong is a cause so independent of previous conduct of the 
 plaintiff which in a general sense, may fall short of due care, 
 that this previous conduct cannot be considered a directly con- 
 tributing cause of the injury, and in reference to such an injury, 
 the plaintiff without introducing evidence, is assumed to be in a 
 position to claim his rights and have compensation. So far as 
 the cause of his injury is concerned, he is in the position of one 
 who exercises due care."^* 
 
 § 1523. Measure o£ damages in these cases. — In Dr. Thompson's 
 Commentaries on Negligence^^ it is said: 
 
 "Liability for punitive damages rests primarily upon wrong 
 motive, and such damages are recoverable only where the in- 
 jury was wantonly and wilfully inflicted, or with a reckless in- 
 difference to the rights of others. Where the defendant's neg- 
 
 27i88 Mass. 367, 74 N. E. 594. 
 
 28 The cases cited in the foregoing opinion are : Com. v. Hartwell, 128 Mass. 
 41s; Com. V. Pierce, 138 Mass. 165; Aiken v. Holyoke St. Ry., 184 Mass. 269, 
 271, 68 N. E. 238; Bjornquist v. Boston & A. R., 185 Mass. 130, 134, 70 N. E. 53. 
 See also Com. v. Hawkins, 157 Mass. 551, 32 N. E. 862. 
 
 202(1 ed., sec. 7165. 
 
 978 
 
WII,IfUL AND WANTON AND GROSS NEGUGENCE § 1 523 
 
 ligence is simply a want of ordinary care, and where no wan- 
 tonness is exercised, only compensatory damages should be 
 award." 
 
 "In some jurisdictions, the doctrine of exemplary damages, 
 in form at least, is repudiated, and damages for aggravation are 
 looked upon as compensatory."^" 
 
 Massachusetts is found in this class of states.'^ 
 
 soibid, sec. 7164. 
 
 3iSee Chap. LV. Measure of Damages, 
 
 979 
 
CHAPTER XLIX 
 
 RACING 
 
 § 1524. Racing Prohibited. 
 
 1525. Joint Liability. 
 
 1526. Rights of Municipalities to Allow. 
 
 1527. Liability of State for Accidents. 
 
 1528. Spectators. 
 
 1529. Rights of Traveller. 
 
 1530. Liability of Manufacturer.^^ 
 
 § 1524. Racing prohibited. — In some states racing is in terms 
 prohibited. In Massachusetts the general motor vehicle law,^ is explicit 
 classing racing in any form with reckless driving. The language of 
 the act in this regard is as follows : 
 
 "Whoever upon any way operates an automobile or motor 
 cycle recklessly or while under the influence of intoxicating 
 liquor or so that the lives or safety of the public might be en- 
 dangered, or upon a bet, wager or race, or who operates a 
 motor vehicle for the purpose of making a record and thereby 
 violates any provision of sections sixteen and seventeen of this 
 act" (relating to speed limits and speed regulations) * * * 
 "shall be punished," etc. 
 
 Examination of the general laws all over the country, demonstrates 
 that promiscuous racing on the highway is condemned, and that all 
 such contests are, as in Massachusetts, in violation of the provisions 
 concerning public and individual safety, more than likely becommg 
 reckless driving, and amounting to common law nuisance.' 
 
 "Our public highways are not designed or maintained as thorough- 
 fares for racing automobiles and those who use them for this purpose 
 do so at their peril." per Braley, J.* 
 
 ^Liability of employer of mechanician for injuries caused by defective track. 
 See ante sec. 928. 
 2St. 1909 c. S34, s. 22. 
 
 'Thompson v. The State, 131 Ala. 18, 31 So. 725. 
 *Brown v. Thayer, 212 Mass. 392; 99 N. E. 237. 
 
 980 
 
RACING § 1525 
 
 § 1525- Joint liability. — Where a pedestrain jumps from in front 
 of one automobile and in doing so gets in the way of another which is 
 racing with it the drivers of both machines may be Uable.^ 
 
 § 1526. Rights of municipalities to allow. — Where there is a 
 general state motor vehicle law the city authorities cannot license a 
 race on the highway as this would be in effect a special speed regu- 
 lation.^ 
 
 A city council has no power to authorize the use of pubUc streets 
 for racing purposes and any such use is illegal.' 
 
 In this connection it seems appropriate to call attention to the fact 
 that in a few states power is given to local authorities to "set aside for 
 a given time a specified public highway for speed tests or races, to be 
 conducted under proper restrictions for the safety of the public" (New 
 York Motor Vehicle Law, sec. 3, Subd. 6, 1904), the effect of the 
 permissive language being similar in all this class of states.* While 
 the legislature, upon principles heretofore considered,' has the power 
 to grant such an use, and even to delegate^" the same to municipal 
 bodies, its exercise will not receive the most liberal judicial con- 
 sideration, being in derogation of public right. In all such cases strict 
 construction of the statute will be the rule of law, and close adherence 
 to itSi terms the requirement. In New York, the Court of Appeals, 
 
 ^Brown v. Thayer, 212 Mass. 392; 99 N. E. 237. 
 
 sjohnson v. New York, 186 N. Y. 139, 78 N. E. 71S, reversing 109 App. Div. 821. 
 
 ^Bogart V. New York, 200 N. Y. 379, 93 N. E. 937- 
 
 'See Massachusetts acts as follows: 
 
 Act of 1908, c. 263, authorizing hill climbing contests on highways, when per- 
 mitted by local authorities. 
 
 Act of 1908, c. 647, authorizing the City of Lowell and an adjoining town, to 
 "grant permits to persons to drive automobiles in speed tests or contests during 
 a specified time and upon specified parts of the public way or ways at any rate 
 of speed." Such permits to be issued only for the Fourth of July or Labor Day. 
 
 Act of 1909, c. 461, authorizing Lowell and certain adjoining towns, to permit 
 persons to "drive motorcycles and automobiles" on specified public ways, "in 
 speed tests or contests at any rate of speed" during a specified week or weeks in 
 September, 1909. 
 
 All three of these acts provide that the local authorities shall grant such per- 
 mits "subject to such regulations concerning the closing, use and control of the 
 highways as they deem necessary for public convenience and safety." 
 
 »See Chapter XIV, Highways, their use and control. 
 
 ^»See Chapter IV, Power to Delegate, etc. 
 
 981 
 
§. 1527 RACING 
 
 speaking through Chief Judge Cullen, held that where a state law 
 limits by general provisions the rates of speed for motor vehicles 
 on the highway, except in cases where greater rates are permitted by 
 local authorities, such an ordinance will be invalid if it applies only to 
 certain specified persons to use the highway as a race course for auto- 
 mobiles on a particular occasion. It amounts to a diversion of the 
 highway from public to private use. The occupation of the highway 
 for the time being exclusive in the parties to whom the permission is 
 granted, a race or speed contest held by such persons, is an unlawful 
 use and obstruction of the highway and therefore per se a nuisance.^^ 
 
 § 1527. Liability of state for accidents. — Even a state may be 
 liable for injuries to spectators at a state track which the state had 
 failed to guard although the races were run by an independent con- 
 tractor as the state in running the races was acting in a private ca- 
 pacity and not in a governmental capacity.^^ 
 
 § 1528. Spectators. — ^The court indicates but does not decide, that 
 a spectator at a road race cannot recover for an injury caused by a 
 racing car leaving the course when its steering gear breaks without 
 fault in the driver.^' 
 
 A spectator standing at a dangerous comer where an automobile 
 "skids" ofif the track may be found guilty of contributory negligence.^* 
 
 § 1529. Rights o£ traveller. — Where a city illegally grants a 
 license to hold automobile races on a public street one injured can 
 recover against the city if he was using the highway as a traveller but 
 not if he was injured while a spectator in attendance on the races.^' 
 
 "Johnson v. New York, 186 N. Y. 139, 78 N. E. 715. 
 
 See § 1528 for the subject of spectators. 
 
 Note. — The rights of abutting owners and their title to compensation for any 
 injury inflicted, and also similar rights of travelers generally to compensation 
 for injury and loss sustained in consequence of closing the highway, though ger- 
 mane to the subject are not within the purview of this inquiry. In New York a 
 public duty is cast upon the State Engineer in respect to injuries to the roadbed. 
 Morrell v. Skene, 64 Misc. 185, 119 N. Y. Supp. 28. 
 
 i^Arnold v. State, 148 N. Y. S. 479, 163 App. Div. 253. 
 
 isjohnson v. Reliance Automobile Co., 23 Cal. App. 222, 137 Pac. 603. 
 
 i*Baldwin v. Locomobile Co. of America, 143 App. Div. S99, 128 N. Y. S. 429. 
 
 i^Bogart V. New York, 200 N. Y. 379, 93 N. E. 937; Johnson v. New York, 
 186 N. Y. 139, 78 N. E. 71S, reversing 109 App. Div. 821, 96 N. Y. S. 754. 
 
 982 
 
RACING § 1530 
 
 On the issue whether the plaintiff's intestate was present at an 
 automobile race as a traveller or as a spectator his widow cannot testify 
 as to his intention although she may give evidence of the circumstances 
 from which the intention can be ascertained.^" 
 
 § 1530. Liability of manufacturer. — ^A manufacturing company 
 is not liable for the negligence of a driver in a race simply because its 
 secretary as an individual enters a car of that make in the race where 
 he had no authority to do so and where the automobile did not belong 
 to the defendant company." 
 
 lOBogart v. New York, 200 N. Y. 379, 93 N. E. 937- 
 
 "Johnson v. Reliance Automobile Co., 23 Cal. App. 222, 137 Pac. 603. 
 
 983 
 
CHAPTER L 
 
 ACTIONS UNDER THE STATUTE WHERE DEATH OCCURS FROM 
 
 NEGLIGENCE 
 
 I. Practice Undsr the Statutes Generauy 
 
 § 1531. Scope of chapter. 
 
 1532. Lord Campbell's Act. 
 
 IS33- New York statute. 
 
 1534. Actions compensatory. 
 
 i|35- Defect in highway. 
 
 1536. Parent as dependent upon minor son. 
 
 1537. Driver under control of defendant. 
 
 1538. Pleading and proof. 
 1539- Evidence of death. 
 
 1540. Proximate cause. 
 
 1541. Contributory negligence. 
 
 1542. Trial. 
 
 1543. Burden of proof. 
 
 1544. Measure of damages. 
 
 § 1 531. Scope of chapter. — The actions referred to in this chapter 
 are those growing out of accidents when death results to the victim. 
 Such actions can be maintained only by virtue of the provisions of 
 special statutes; and, being in derogation of the common law, they 
 depend upon the statute itself and upon the construction thereof by 
 the courts of the particular jurisdiction in which each action is brought. 
 "It was a maxim of the common law that a personal action for which 
 damages only could be recovered, did not survive on the death either 
 of the person who did, or the person who sustained, the wrong; 
 * * * that maxim applies to causes of action in tort which are 
 founded on the malfeasance or misfeasance to the person or property 
 of another, which latter are annexed to the person, and die with the 
 person except where the remedy is given to the personal representatives 
 by the statute law."^ 
 
 lAddison on Torts, 8th ed., 8s; Shearman & Redf. on Negligence, sth ed., 
 sec. 124. 
 
 984 
 
PRACTICE GENERALIvY § 1 532 
 
 In Baker v. Bolton,^ decided in 1808 (before the passage of Lord 
 Campbell's Act, infra), Lord Ellenborough said: 
 
 "In a civil court, the death of a human being could not be 
 complained of as an injury; and in this case the damages as to 
 the plaintiff's wife must stop with the period of her existence." 
 
 The concluding sentence calls attention to the distinction recognized 
 by the common law where death does not at once ensue, in which case 
 "a person entitled to the services of the person injured, may recover 
 for the loss accruing between the injury and the death, and this re- 
 covery will not be barred by the death."* 
 
 § 1532. Lord Campbell's Act. — ^The first departure from the com- 
 mon law was taken by the passage in Parliament, of what is generally 
 known as Lord Campbell's Act, which is as follows: 
 
 Chap. 93, 9 and 10 Vict. Aug. 26, 1846 (65 Stats, at Large), entitled, 
 "An act for compensating the families of persons killed by accidents." 
 
 "Whereas no action at law is now maintainable against a 
 person who by his wrongful act, neglect, or default may have 
 caused the death of another person and it is oftentimes right 
 and expedient that the wrong-doer in such case should be an- 
 swerable in damages for the injury so caused by him: Be it 
 therefore enacted," etc. * * * "That whensoever the death 
 of a person shall be caused by the wrongful act, neglect, or de- 
 fault, and the act, neglect, or default is such as would (if death 
 had not ensued) have entitled the party injured to maintain an 
 action and recover damages in respect thereof, then and in 
 every such case the person who would have been liable if death 
 had not ensued shall be liable to an action for damages, not- 
 withstanding the death of the person injured, and although the 
 death shall have been caused under such circumstances as 
 amount in law to felony. 
 
 "Sec. 2. And be it enacted that every such action shall be for 
 the benefit of the wife, husband, parent, and child of the person 
 whose death shall have been so caused, and shall be brought 
 by and in the name of the executor or administrator of the 
 person deceased; and in every such action, the jury may give 
 
 "i Camp. 493. 
 
 *0n the subject of recoverable damages under this and similar American stat- 
 utes, see chapter on Measure of Damages, § 1033 et seq.; 2 Cooley's Blackstone, 
 4th ed., 119 note; Long v. Morrison, 14 Ind. 595; Hyatt v. Adams, 16 Mich. i8a 
 
§ 1 533 WHERE DEATH OCCURS FROM NEGLIGENCE 
 
 such damages as they may think proportioned to the injury 
 resulting from such death, to the parties respectively for whom 
 and for whose benefit such action shall be brought and the 
 amount so recovered, after deducting the costs not recovered 
 from defendant, shall be divided amongst the before-mentioned 
 parties in such shares as the jury by their verdict shall find and 
 direct. 
 
 "Sec. 3 provides 'that not more than one action shall lie for 
 the same subject matter,' and that action shall be com- 
 menced within twelve months after the death. 
 
 "Sec. 4 provides that the plaintiff shall furnish with the decla- 
 ration, a full bill of particulars of the persons and nature of 
 the claim in respect of which the action is brought. 
 
 "Sec. 5 defines the meanings of the words and expressions 
 used in the Act, among which definitions it appears that 'the 
 word "person" shall apply to bodies politic and corporate.' " 
 
 In many of the American states stautes have been enacted follow- 
 ing the general lines of Lord Campbell's Act, of which that of New 
 York is an illustration. 
 
 § 1 533- New York statute. — i Rev. Stats., p. 934 (Code Civil 
 Proc. sec. 1902) : 
 
 Section i. "The executor or administrator of a decedent 
 who has left him or her surviving, a husband, wife, or next of 
 kin, may maintain an action to recover damages for a wrong- 
 ful act, neglect or default, by which the decedent's death was 
 caused, against a natural person who, or a corporation which 
 would have been liable to an action in favor of the decedent, 
 by reason thereof, if death had not ensued. Such an action 
 must be commenced within two years after decedent's death." 
 
 Section 2 provides that the damages when collected shall be 
 distributed "as if they were unbequeathed assets." 
 
 Section 3 provides that the damages may be such a sum as the 
 jury (or the court when the trial is without a jury) "deems to 
 be a fair and just compensation for the pecuniary injuries, re- 
 sulting from the decedent's death to the person or persons for 
 whose benefit the action is brought."* 
 
 § 1534. Actions compensatory.— Under Lord Campbell's Act in 
 most of the states, these actions are of a compensatory rather than of 
 
 <See Thies v. Thomas, ^^ N. Y. S. 276, 1902. On the subject of "pecuniary 
 injuri«s" see chapter on Measure of Damages, § 1595 et seq. 
 
 986 
 
PRACTICE GENERALLY § 1534 
 
 a punitive character. Dr. Thompson, citing a wide range of authority, 
 says of them : 
 
 "Plainly, the condition that the action can only be main- 
 tained where the deceased could have sued had he survived, 
 will defeat a recovery where the deceased directly contributed 
 to the infliction of the injury by which he lost his life, unless 
 the ^act of the defendant was wanton or wilful. The negligence 
 of a parent which contributed to the death of his child can be 
 set up as a defense in an action where the parent is a ben- 
 eficiary." 
 
 And in writing on the subject of imputed negligence, he thus sums 
 up that feature : 
 
 "In other language, whenever the plaintifif derives his cause 
 of action from an injury to a third person, the contributory 
 negligence of such third person is imputable to him, so as to 
 charge him with the consequences, just as though such third 
 person were suing for his own injury."^ 
 
 In Oldfield v. New York & Harlem R.,'' the history of legislation 
 in New York was reviewed, both in the upper and by the lower courts. 
 The purpose of the Act was defined, and the character of the damages 
 to be awarded thereunder declared, as also the basis on which they 
 are to be assessed. It is to be remembered, in this connection, that the^ 
 New York Act follows closely along the lines of Lord Campbell's 
 Act, and is a fair illustration of the similar statutes existing in most of 
 the states. In consequence, the case above cited being an early judicial 
 interpretation (1854, 1856), and also because of its eminence as au- 
 thority, is frequently cited by courts in all parts of the country. It is 
 quoted here as expressive of the general view. Mr. Justice Wright, for 
 the court of appeals, says (p. 317) : 
 
 "The action was brought under a special statute, passed in 
 1847, and amended in 1849. * * * The intention of the 
 legislature * * * manifestly was to impose on corporations 
 and others more care in regard to human life; and that they 
 
 ^The italics are by the author of this book. 
 
 *i Thompson, Com. on Negligence, 2d ed., sec. 498. 
 
 ^14 N. Y. 310, affirming 3 E. D. Smith, 103. 
 
 987 
 
§ 1534 whh;es dbath occurs from negligbncu 
 
 might not escape the consequences of their wrongful acts by 
 the death of the person injured to prevent the action dying with 
 such injured person. 
 
 "Had death not ensued in this case, and the action had been 
 brought by the child, it would not be pretended that to have 
 ' entitled her to recover it was necessary to prove an actual pe- 
 cuniary loss. A verdict for such damages as the jury might 
 award would be sustained by evidence of the injury and the 
 defendant's negligence. The principle of liability, * * * 
 is made the same by the statute as though the injured party had 
 survived and brought the action herself. It is not required 
 therefore, to sustain the action, that there should he proof of 
 actual pecuniary loss? Any difficulty or confusion on the ques- 
 tion of damages arises from a power conferred on the jury. 
 * * * 
 
 "The damages are to be 'assessed by the jury with reference 
 to the pecuniary injuries sustained by the next of kin in conse- 
 quence of such death. This is not the actual present loss which 
 the death produces, and which could be proven, but prospective 
 losses also. * * * i think the jury are not limited to the as- 
 sessment of damages for the actual present loss that may be 
 proved, but they may go further, and compensate for the rela- 
 tive injury with reference to the future. They may compen- 
 sate for 'pecuniary injuries' present and prospective. * * * A 
 construction which should exclude damages for prospective 
 losses and confine them to such actual pecuniary loss as was 
 proved, would render the law nugatory. * * * What I think 
 the legislature intended was, that the jury who had all the 
 circumstances of the causalty, and the precise condition and 
 relationship of the parties before them, should give such a 
 compensation as they should deem fair and just, keeping in view 
 that it was to be measured by the injury done to the next of kin. 
 They were not to compensate for the pain and suffering en- 
 dured by the deceased, or the anguish and mental distress of a 
 wife or children, incident to the loss of a husband or father, 
 but were to measure the compensation by the pecuniary injury 
 exclusively, the statute assuming that every person possesses 
 some relative value to others. * * * 
 
 "The judge instructed the jury * * * that in a case of 
 this kind, the plaintiff might recover whatever pecuniary loss 
 the mother may be supposed to have incurred in consequence of 
 the child's death. But this was not error. It was only another 
 way of instructing the jury that the damages were to be a sum 
 which, in their opinion, taking into view all the circumstances 
 
 ^Italics by the author of this book. 
 
 988 
 
PRACTICE GENERALLY § 1535 
 
 of the case, would be the pecuniary loss of the next of kin. This 
 was right unless the statute expressly limits the recovery to 
 the actual pecuniary loss proved on the trial. We think it does 
 not." All the judges concurred. 
 
 Mr. Justice Ingraham, writing the opinion for the lower court, dis- 
 cussed the statute very much as it is reviewed by Judge Wright. 
 He adds an observation, however, on another point, to appreciate the 
 full bearing of which it should be explained that the decedent was 
 a child about six years of age killed while crossing a city street, by 
 one of defendant's cars. On the competency of the child and the 
 question of parental negligence. Judge Ingraham's views are elsewhere 
 quoted.' 
 
 Upon the question of the damages assessed, the judge remarks 
 (p. 109) : 
 
 "But it is said the damages are excessive. The amount 
 awarded by the jury was $1,300. A slight excess in the amount, 
 under circumstances of the kind which give rise to such an ac- 
 tion, would not justify a reversal of the judgment, and where 
 the amount is resting mainly in the discretion of the jury, al- 
 though they have awarded a sum larger than the court might 
 have granted if the case had been tried without a jury, such 
 an excess does not warrant a new trial. The jury have in- 
 tended to afiford an ample compensation for the loss ; still, al- 
 though the amount of the verdict is large, it does not afford 
 evidence of prejudice, or partiality, or corruption; and if not, 
 there is no ground for granting a new trial because the damages 
 are large." 
 
 Mr. Justice Wright in reviewing the findings of the jury on the 
 questions of negligence, and as to the amount of the verdict, says 
 
 (P- 319) : 
 
 "It may be that under the whole proof, the question of neg- 
 ligence of the parties was incorrectly determined by the jury, 
 and their assessment of damages excessive. But these are mat- 
 ters not reviewable by this court on appeal." 
 
 § 1535- Defect in highviray. — As covering a larger field of dis- 
 cussion than some of the others, attention may be specially directed 
 
 9§ 282 et seq., Law of the Road, § 920, Children. 
 
 989 
 
§ 1536 WHERE DEATH OCCURS EROM NEGLIGENCE 
 
 to the case of Baltimore (City) v. Maryland (State)/" where the ac- 
 tion was brought to the use of the widow and children, under the 
 statute of Maryland, to recover for pecuniary injuries growing out of 
 the death of one Hutchinson. Deceased was a passenger in an auto- 
 mobile which ran into an excavation in the highway, made by the city 
 in connection with the construction of a public improvement. The 
 accident occurred after dark and the plaintiff claimed that the warn- 
 ing lights were so placed as to mislead the chauffeur, in consequence of 
 which the catastrophe happened. The case is very fully reported and 
 the opinion of Mr. Justice Wadill covers many points. The dissenting 
 opinion of Mr. Justice Boyd is also of interest. The court sustained 
 a verdict of $8,500 apportioned between the widow and children. 
 
 § 1536. Parent as defendant upon minor son. — The court con- 
 siders at length the statutes for recovery from death by wrongful act 
 and the Georgia statute under which the parent to recover must be 
 dependant upon the minor son.^^ 
 
 § 1537. Driver under control of defendant. — Where a statute 
 giving an action for death provides for liability in case of the negligence 
 of the defendant or the gross negligence of his employe where the de- 
 fendant was in the automobile at the time of the accident and the 
 driver acted immediately under his direction the gross negligence of 
 the employe is immaterial and the plaintiff need only show the negli- 
 gence of the defendant.^^ 
 
 § 1538. Pleading and proof. — In Ouligan v. Butler,^' brought un- 
 der R. L., c. 171, s. 2, in 1905, involving the death of several persons, 
 the court by Mr. Justice Braley, say : 
 
 "The remedy given being purely statutory, it becomes obliga- 
 tory to allege and prove that the several decedents left either a 
 widow, or children, or next of kin, to whom anv damages that 
 might be recovered were to be paid in the proportion specified 
 by the statute." 
 
 which follows directly in the line of sec. 4 of Lord Campbell's Act 
 (supra). 
 
 10166 Fed. Repr. 641 C. C. A. 
 "Fuller V. Inman, 10 Ga. App. 680, 74 S. E. 287. 
 i2Rasmussen v. Whipple, 211 Mass. 546; 98 N. E. 592. 
 18189 Mass. 287, 75 N. E. 726. 
 
 990 
 
PRACTICE GBNERAU.Y § 1539 
 
 § 1539- Evidence of death. — The evidence is not clear enough to 
 justify recovery for death where it appears only that the decedent was 
 found dead beside the road shortly after an automobile had passed with- 
 out headlights, where it further appeared that the decedent was drunk, 
 that his injuries appeared to have been caused by some sharp instru- 
 ment, that the neighborhood was a bad one and a gang of toughs had 
 been seen in the vicinity shortly before. This evidence is equally con- 
 sistent with the theory that deceased was killed by others in the vicinity 
 especially when the automobile which passed is not clearly identified." 
 
 § 1540. Proximate cause. — In Ouligan v. Butler," supra. Judge 
 Braley says : 
 
 "The defendant, however, urges that the rule as to proximate 
 cause, applicable to suits for damages arising out of injuries re- 
 ceived from defective highways, should be followed. But this 
 rule, that the accident must be caused solely by the defect, rests 
 on the construction of the statute, to which it should be con- 
 fined." 
 
 And, in another place, after reviewing the facts denoting the negli- 
 gence of the corporation involved in the case, it is said: 
 
 "Its negligence, therefore, could be found to have been the 
 efficient cause of the accident." 
 
 § 1 541. Contributory negligence. — Contributory negligence of the 
 deceased is commonly a good defense.^* 
 
 In Massachusetts and New York this doctrine is a part of their juris- 
 prudence, independent of legislation. 
 
 Before the amendment of 1907, the act in Massachusetts was limited 
 to cases of gross negligence, in which and in its punitive character. 
 Judge lyoring in Hudson v. Lynn" remarks, it was : 
 
 "Entirely different from the English system, which generally 
 has been followed in nearly all the states of the United States, 
 other than Maine and New Hampshire." Citing Com. v. Bos- 
 ton & L. R. R., 134 Mass. 211. 
 
 i^Hicks V. Romaine, 116 Va. 401. 
 
 15189 Mass. 287, 75 N. E. 726. 
 
 "Merklinger v. Lambert, 76 N. J. Law 806, 72 Atl. 119. 
 
 "i8s Mass. Sio, 515, 71 N. E. 66. 
 
 991 
 
§ 1542 WHgRE DEATH OCCURS FROM NeCUGBNCB 
 
 Because of the peculiar nature of the statute, the question of con- 
 tributory negligence would, except for the special provision in regard 
 thereto, present itself as in a case of criminal negligence, the reason 
 for which Judge Loring observes (p. 515) is summed up in the follow- 
 ing sentence : 
 
 " 'If the person whose negligence caused the death had been 
 indicted for manslaughter, the negligence of the deceased would 
 not have been a defense. Regina v. Longbottom, 3 Cox. C. C. 
 439; Regina v. Swindall, 2 Car. & K. 230.' " 
 
 The insertion in the Act of the clause regarding due care on the part 
 of decedent (see 1541b ante), has the effect of placing the question of 
 contributory negligence in these cases in this state, upon the same foot- 
 ing as in ordinary actions for negligent injury, concerning which the 
 court, in the same case, say (p. 521) : 
 
 "We have shown it to be settled by decision that these words 
 must be taken to have their ordinary acceptation, and to mean 
 that the person killed * * * must have been actively and 
 actually in the exercise of due diligence."^' 
 
 § 1542. Trial. — In the trial of cases of the character now the sub- 
 ject of consideration, the usual rules of practice and evidence in neg- 
 ligence cases, except on the points hereinbefore noted, are found gen- 
 erally to apply. 
 
 Remarks by counsel that the statutory limit for recovery for death is 
 too small are unfair and ground for a new trial when properly objected 
 to." 
 
 § 1543. Burden of proof. — The ordinary rule prevails that the bur- 
 den of proof is always upon the plaintiff to show that the defendant 
 was negligent, and also, in some states that the deceased was in the 
 exercise of due care.^" 
 
 As to the former proposition, see cases cited."^ 
 
 isSee also Galbraith v. West End St. Ry., 165 Mass. 572, 43 N. E. 501 ; Rogers 
 V. Phillips, 206 Mass. 308, 92 N. E. 327. 
 
 isMcKiernan v. Lehmaier, 85 Conn, iii; 81 Atl. 969. 
 
 2»See § 1652. 
 
 21 Hubbard v. Boston & A. R., 159 Mass. 320, 323, 34 N. E. 459; Kelsey v. New 
 York, Etc., R., 181 Mass. 64, 67, 63 N. E. 8 ; Hayes v. Pitts-Kimball Co., 183 Mass. 
 262, 264, 67 N. E. 249. 
 
 992 
 
PRACTICE GENEEAI,I,Y § 1544 
 
 As to the latter, the following cases are quoted : 
 
 Manning v. Conway," in which the court by Justice Lathrop, say: 
 
 "To entitle the plaintiff to recover under the R. L , c 171 
 sec. 2, the plaintifif must show that there was no contributory 
 negligence on the part of the intestate, or on the part of those 
 who had charge of him." 
 
 Beale v. Old Colony Street Railway^^ was a case involving the death 
 of a child, seven years of age, brought under the same statute. Mr. 
 Justice Rugg, speaking for the court, observed : 
 
 "The plaintiff is bound to prove that his intestate was, at the 
 time of the injury, in the exercise of such care as might rea- 
 sonably be expected of children of that age, or which ordinary 
 children pf his age, under similar conditions, would exercise."^* 
 
 In an action for death there is a presumption that the deceased had 
 used proper care in crossing the street."' 
 
 § 1544. Measure of damages."'— In Thompson's Com. on Negli- 
 gence,"^ it is said : 
 
 "It has been almost universally held that the principle under 
 which damages are to be assessed under these statutes is that 
 of pecuniary injury, and not as a solatium. No compensation 
 can be given for wounded feelings, or the loss of comfort and 
 companionship of a relative. * * * But the damages are not 
 confined to an immediate loss of money to those for whose ben- 
 efit the action is brought. Thus, the loss of the benefits of an 
 education and the comforts and conveniences of life, depending 
 upon the possession of pecuniary means to obtain them through 
 the death of a relative whose duty or habit it was to supply them, 
 is an injury in respect of which an action may be maintained. 
 So the injury of a widow through the loss of her husband's care, 
 protection, support and assistance may be considered in estimat- 
 ing damages." 
 
 22192 Mass. 122, 125, 78 N. E. 401. 
 
 23ig6 Mass. 119, 81 N. E. 867. 
 
 2*See sections as to Children § 1345 ef seq., see also Walsh v. Looretn, 180 Mass. 
 18, 61 N. E. 222 ; Morris v. Interurban St. Ry., 100 N. Y. App. Div. 295, 91 N. Y. 
 S. 479- 
 
 "sWalleigh v. Bean, 248 Pa. 339, 93 Atl. 1069. 
 
 28See chapter on Measure of Damages, § 1712 et seq. 
 
 "'2 ed., sec. 7082. 
 
 993 
 63 
 
§ I54S WHBRE D^ATH OCCURS FROM NEG]:,IG^NCE 
 
 Probable earnings may be considered,"' so also may nursing, medical 
 attendance, funeral expenses, etc.,^° and in brief,'" "the proper estimate 
 can usually be arrived at with tolerable certainty by taking the calling 
 of the deceased, and the income derived therefrom, in connection with 
 his expectation of life as shown by the tables of mortality. If the 
 amount of the verdict is greatly in excess of the sum thus arrived at, 
 the court will set it aside and order a new trial."^^ 
 
 So also'" "Courts may set aside verdicts as well when the damages 
 are manifestly too small as when they are too large, and it is the duty 
 of the court to exercise this power where the verdict is so small as to 
 shock the moral sense and is plainly rendered in palpable disregard of 
 the evidence and instructions of the court."'' 
 
 A verdict of $i,57S for death of a healthly boy, eight years old, was 
 found not to be excessive.'* 
 
 II. The Massachusetts Act 
 
 § 1545. Massachusetts statute. 
 
 1546. History of legislation. 
 
 1547. Railroad cases. 
 
 1548. "Gross" negligence. 
 
 1549. Damages. 
 
 1550. In case of joint defendants. 
 
 § 1545. Massachusetts statute. — ^Legislation in Massachusetts has 
 taken a course similar to that of other states, diverging, however, in 
 some particulars.'^ The following is the Massachusetts statute : 
 
 Rev. Laws, Chap. 171, sec. 2, as amended by Chap. 375, of the Laws 
 of 1907. 
 
 Sec. I. "If a person or corporation by his or its negligence, 
 or by the negligence of his or its agents or servants while en- 
 
 28ib., sec. 7092. 
 
 2»Ib., sec. 7093- 
 
 soib., sec. 7104. 
 
 «i"Pecuniary Injuries," in cases of children, § 1034. 
 
 82Ib., sec. 7105. 
 
 MSee § 1038. See also Oldfield v. N. Y. & H. R., 14 N. Y. 310, affirming 3 E. 
 
 D. Smith, 103. XT r< ri 
 
 s*American Motor Car Co. v. Robbins, 181 Ind. 417; 103 N. E. 641, 8 N. C. C. 
 
 A. 372- 
 s^See § 1712 et seq., chapter on Measure of Damages. 
 
 994 
 
fat MASSACHUSETTS ACT § 1546 
 
 gaged in his or its business, causes the death of a person who is 
 in the exercise of due care and not in his or its employment or 
 service, he or it shall be liable in damages in the sum of not less 
 than five hundred nor more than ten thousand dollars to be as- 
 sessed with reference to the degree of his or its culpability or of 
 that of his or its agents or servants, to be recovered in an action 
 of tort, commenced within two years after the injury which 
 caused the death, by the executor or administrator of the de- 
 ceased, one-half thereof to the use of the widow, and one-half 
 to the use of the children of the deceased ; or, if there are no 
 children, the whole to the use of the widow ; or, if there is no 
 widow, the whole to the use of the next of kin." 
 
 See somewhat similar statutes providing for damages to be assessed 
 in the same way against cities, towns, etc., in cases where death results 
 from defective highways. 
 
 Rev. Laws, Chap. 51, sec. 17. 
 
 No attempt will be made to present the right of action accruing to the 
 representatives of the deceased by reason of the provisions of Massa- 
 chusetts Rev. Laws, Chap. 106, sees. 72 and 73, those sections having 
 reference to negligences occurring during the existence of the relation 
 of employer and employee; nor will consideration be given to liability 
 growing out of Chap. 463, Acts of 1906, Part I, sec. 63, as amended 
 by Chap. 392, sec. i of the Acts of 1907, pertaining to railroads. 
 
 § 1546. History of legislation. — The history and course of legis- 
 lation and decision in Massachusetts, is contained in Hudson v. Lynn 
 & B. R., 185 Mass. 510, 512, where the Supreme Court by Mr. Justice 
 Loring, say : 
 
 "At common law, the death of a human being is not the sub- 
 ject of an action for damages. This was established in this 
 Commonwealth by the case of Carey v. Berkshire Railroad Co., 
 I Cush. 475. 
 
 "In that case which was decided in the year 1848, the differ- 
 ence is pointed out between the way in which the common law 
 has been changed and the wrongful death of a person has been 
 dealt with by Parliament in England and by the legislature of 
 this Commonwealth. It is first pointed out that in England, 
 by a then recent Act (St. 9 and 10 Vict. c. 93, passed in 1846. 
 and usually called Lord Campbell's Act), it was provided that 
 if a person was killed under such circumstances that if he had 
 been injured and not killed, the defendant would have been 
 liable, the executor or administrator of the person killed might 
 
 995 
 
§ 1547 WHERE DEATH OCCURS EROM NEGUGENCE 
 
 bring an action for the benefit of the wife, husband, parent or 
 child, in which the jury might give such damages as they should 
 think proportioned to the injury resulting from such death, to 
 the parties, respectively, for whose benefit the action was 
 brought." 
 
 Judge Loring calls attention to the fact that the earliest statute on this 
 subject in Massachusetts, limited the right of action to death resulting 
 from injuries sustained by travelers in consequence of defective high- 
 ways, and sketches the steps extending the scope of the legislation until 
 at present it covers cases of death resulting from the negligence of any 
 person or corporation, describing it as a 
 
 "System of imposing a punishment for wrongfully causing 
 death in place of giving to the family of the deceased an action 
 for compensation." 
 
 § 1547. Railroad cases. — In considering Hudson v. Lynn & B. R. 
 R.,'° and the authorities cited therein, the distinction in cases involving 
 railroads, is to be drawn between negligences as to passengers, and those 
 causing the death of persons not passengers. 
 
 § 1548. "Gross" negligence. — ^With regard to the use of the word 
 "gross," stricken out by the amendment of 1907, in Brennan v. Stand- 
 ard Oil Co.,'°* Chief Justice Knowlton says : 
 
 '^"This statute upon which the plaintiff relies, recognizes or 
 creates a distinction between ordinary negligence and gross neg- 
 ligence." 
 
 38The cases cited in Hudson v. Lynn & B. R. R., 185 Mass. 510, 517, 71 N. E. 66 
 isupra), other than Massachusetts, are: Louisville & Nashville R. v. Johnson, 
 108 Ala. 62, 19 So. SI ; Guy v. New York O. & R., 30 Hun. 399; Gill v. Rochester 
 & P. R., 37 Hun. 107; Louisville & N. R. v. Ellis, 97 Ky. 330, 30 S. W. 979; 
 Weymire v. Wolfe, 52 Iowa 533, 3 N. W. 541; Southern Ry. v. Webb, 116 Ga. 
 152, 42 S. E. 395; Haug v. Great N. Ry., 8 No. I>ak. 23, 77 N. W. 97; Chicago 
 City Ry. v. O'Donnell, 207 111. 478. 69 N. E. 882. 
 
 In all the states in which the above mentioned cases were decided, it is said by 
 Judge Loring, "there are acts like Lord Campbell's Act." 
 
 Other cases which have no bearing on the Massachusetts statute for the reason 
 that the plaintiff could have recovered under circumstances like those of Hudson 
 V. Lynn & B. R. R. (st^pra) 185 Mass. 510, Si7. 7i N. E. 395, for injury less than 
 death, are said to be: Evans v. St. Louis, i M. & S. R., 11 Mo. App. 463; Kline 
 V. Central P. R., 37 Cal. 400; ConoUy v. Crescent City R., 41 La. Ann. 57, 5 So. 
 2S9, 6 So. 526, 
 
 36ai87 Mass. 376, 378. 
 
 '■'See Chapter XXXIII, on Gross Negligence, etc. 
 
 . , , 996 ■ . ■ 
 
THK MASSACHUSETTS ACT § 1 549 
 
 In abolishing the limitation, the act has been brought more nearly in 
 Hne with L,ord Campbell's Act. 
 
 § 1549- Damages.*' — ^The distinctiort which remains concerns the 
 measure of damages in actions of this character. In Hudson v. Lynn 
 & Boston R.,*'* on this subject it is said : 
 
 "These acts gave a civil remedy for the recovery of a penalty 
 imposed by way of punishment, * * * where a defendant 
 is to be punished for a wrongful act done by him, the question 
 and the only question is how serious was the defendant's wrong- 
 doing, and the amount of the injury inflicted upon the deceased 
 (except so far as it gives character to the wrong-doing of the 
 defendant) is altogether immaterial." 
 
 § 1550. In case of joint defendants. — Recovery for death caused 
 by wrongful act was unknown to the common law. The damages un- 
 der the Massachusetts statute are grounded upon the defendant's mis- 
 conduct and are diminished or enhanced according to the degree of his 
 delinquency. For this reason where there are two separate defend- 
 ants who were racing their automobiles they were entitled to have their 
 damages assessed separately with separate verdicts and judgments in 
 separate suits.'* 
 
 s'See punitive damages, § 1762-1773. 
 
 38ai8s Mass. 510, 517. 
 
 ^'Brown v. Thayer, 212 Mass. 392, 99 N. E. 237. 
 
 Criminal pleading and practice, see ante, Chapter XXII. 
 
 997 
 
CHAPTER LI 
 
 PLEADINGS 
 
 § 1551. In general. 
 
 1552. General averment of negligence. 
 
 1553- General averment of virilfulness. 
 
 ISS4. Bill of particulars. 
 
 1555- Ordinances or special rules. 
 
 1556. Contributory negligence. 
 
 1557- Variance. 
 
 1558. Speed as negligence. 
 
 ISS9- Negligent steering as well as speed. 
 
 1560. Allegation of defendant's duty. 
 
 1561. Absence of warning. 
 
 1562. Agency. 
 
 1563. Proximate cause. 
 
 1564. Stating that defendant ran into plaintiff. 
 
 1565. Personal injuries. 
 
 1566. Allegation that automobile was on the public highway. 
 
 1567. Parties. 
 
 1568. Last clear chance. 
 
 1569. Plea of not guilty. 
 
 § 1551. In general. — The rules of pleading in motor vehicle cases 
 are those applicable to proceedings generally wherein similar causes of 
 action are involved. 
 
 § 1552. General averment of negligence. — The declaration will be 
 demurrable if it does not contain an affirmative allegation of negli- 
 gence.^ 
 
 But it is sufficient as a general rule for the complaint to aver the 
 facts out of which the duty to act springs and that the defendant was 
 negligent in the performance of that duty and it is not necessary to 
 specify the particular acts of diligence he should have employed in the 
 performance of that duty.^ Hence an allegation of the negligent oper- 
 
 iCampbell v. Walker, 2 Boyce (Del.) 41, 76 Atl. 475. 
 ^Overton v. Bush, 2 Ala. App. 623, 56 So. 852. 
 
 998 
 
PI.EADINGS § 1 553 
 
 ation of a motor vehicle causing injury to the plaintiff is in general 
 sufficient.* 
 
 A charge in a complaint that the defendant carelessly, negligently 
 and recklessly ran his automobile against the plaintiff is sufficient and 
 it is not error for the trial court to refuse a motion for particulars of 
 the defendant's negligence. "The plaintiff is required to charge his 
 cause of action in direct and certain terms, yet he is not bound to go 
 into an elaboration of details beyond what is reasonably necessary fully 
 and distinctly to inform the defendant of what he is called upon to 
 meet."* 
 
 But a general averment of negligence is of no avail when followed 
 by a particular statement of facts showing negligence.^ 
 
 But it has been held that a general allegation of negligence is a mere 
 conclusion and the particular facts relied on to prove negligence should 
 therefore be alleged.' 
 
 An indictment charging that the defendant operated an automobile 
 "so as to endanger the life and limb of persons and the safety of prop- 
 erty" is void although in the language of the statute as it does not 
 sufficiently identify the time, place and circumstances of the alleged 
 offense.'' 
 
 § 1553. General averment of v^ilfulness. — ^A general averment of 
 wilfulness or wantonness in servants is sufficient and imputes to serv- 
 ants consciousness of the fact that their act or omission will probably 
 produce injury.* 
 
 An allegation that the injury was caused by wantonly or wilfully 
 causing an automobile to run over or against the plaintiff isysufficient." 
 
 In a complaint charging that the defendant so drove that the automo- 
 bile was driven wantonly and recklessly, etc., the essence of the charge 
 
 *Wood Transfer Co. v. Shelton, 180 Ind. 273, loi N. E. 718; Hicks v. Serano, 
 74 Misc. 274, 133 N. Y. S. 1 102 (N. Y. Co. Ct.) ; Wallace v. Keystone Automobile 
 Co., 239 Pa. no, 86 Atl. 699, 4 N. C. C. A. 32; Switzer v. Sherwood, 80 Wash. 19, 
 141 Pac. 181, 9 N. C. C. A. 834 ; Cloherty v. Griffiths, 82 Wash. 634, 144 Pac. 912. 
 
 "Kinmore v. Cresse, 53 Ind. App. 693, 102 N. E. 403- 
 
 ''Clark V. General Motor Car Co., 177 Mo. App. 623, 160 S. W. 576. 
 
 spuller V. Inman, 10 Ga. App. 680, 74 S. E. 287. 
 
 'Carter v. State, 12 Ga. App. 430, 78 S. E. 205. 
 
 sBirmingham, Etc., R. v. Carpenter, Ala. 1916, 69 So. 626. 
 
 sYarbrough v. Carter, 179 Ala. 356, 60 So. 833. 
 
 999 
 
§ 1554 PlySADINGS 
 
 is negligence and wantonness need not be proved.^" So an action in 
 which the pleadings state that the defendant "wilfully and unlawfully" 
 continued on his way without reducing the speed of his machine and 
 so frightened the plaintiff's horse is an action of negligence. There 
 is no allegation of a design to injure the plaintiff. Negligence involves 
 a violation of a legal duty.^^ 
 
 § 1554. Bill of Particulars. — Frequently in connection with the 
 complaint a bill of particulars of the cause of action may be required 
 by the defendant. An application therefore must be made to the court 
 and it is a matter for the court to determine. Under the code practice 
 prevailing in New York, in the case of Bailey v. Mayer, ^^ Mr. Justice 
 Spencer says, "there can be no doubt that this court has unlimited 
 power to require the delivery of a bill of particulars as to pleadings at 
 any time and for any purpose." Citing Code Civ. Proc. Usually there 
 are rules of court on this subject, the practice in New York being gen- 
 erally, not to entertain application of this kind until after issue has been 
 joined. But a motion for particulars going into minute details may be 
 a gross abuse and imposition oh the court. ^^ 
 
 § 1555. Ordinances or special rules. — When an ordinance or spe- 
 cial rules or regulations are material to the issue, they ordinarily should 
 be pleaded as in other cases.^* 
 
 So a complaint is insufficient which alleges negligence in not "obey- 
 ing rules and regulations theretofore properly and duly made and 
 promulgated and then and there in force, by the proper authorities hav- 
 ing control of said highway and its use." 
 
 ^g.".:^- : . '; 
 
 "^ " "The complaint should state specifically the rules and regu- 
 lations therein referred to and the authorities by whom they were 
 made and promulgated."^' 
 
 loTownsend v. Butterfield, 168 Cal. 564, 143 Pac. 760. 
 
 "Sharkey v. Skilton, 83 Conn. 503; 77 Atl. PSO. 
 
 1Z107 N. Y. Supp. 624, s6 Misc. 331. 
 
 "Shepard v. Wood, 116 N. Y. App. Div. 861, 102 N. Y. S. 306. 
 
 "See § 151, Ordinances; Lewis v. Amorous, 3 Ga. App. 51, 59 S. E. 338; 
 Shepard v. Wood, 116 N. Y. App. Div. 85i, 102 N. Y. S. 306; Harrington v. 
 Stillman, 120 App. Div. 659, 105 N. Y. Supp. 75, 1907; Brickner v. Kopmier, 133 
 Wis. 582, 113 N. W. 414. 
 
 loHarrington v. Stillman, 201 App. Div. 659, 105 N. Y. Suppl. 75. 
 
 1000 
 
PI.EADINGS § 1556 
 
 The specific violation should be pointed out and a pleading alleging 
 that a team is being driven in violation of a certain ordinance without 
 alleging in what respect is nothing more than a conclusion of the 
 pleader." 
 
 But in some states the rule prevails that the existence and terms of a 
 municipal ordinance may be proved although not specially pleaded un- 
 der a general allegation of negligence." 
 
 In Omaha St. Ry. Co. v. Larson" the court held : 
 
 "The evidence of an ordinance and its violation, is admissible 
 under a general averment of negligence, where this question is 
 material in a case." 
 
 And in Faber v. St. P., Etc., Ry. Co.," the court by Mr. Justice Dick- 
 enson, say: 
 
 ■ The objection cannot be sustained. The fact that the rate of 
 speed at which the train was run was prohibited by the mu- 
 nicipal law was competent evidence going to prove negligence 
 * * * and, being evidence of the fact pleaded, it might be 
 proved, although the existence of the ordinance had not been 
 alleged in the complaint." 
 
 § 1556. Contributory negligence. — Where contributory negligence 
 is an affirmative defense it should be specially pleaded.^" But where 
 plaintiff's evidence shows that he was guilty of negligence as matter of 
 law the defendant may have the advantage of it even in the absence of 
 an affirmative plea of contributory negligence.^^ 
 
 An answer setting up contributory negligence does not thereby admit 
 negligence in the defendant.'^- 
 
 A plea that the plaintiff stepped "immediately in front of an auto- 
 mobile is a good plea as indicating close proximity.^^ 
 
 loBrickell v. Williams, 180 Mo. App. 572, 167 S. W. 607. 
 
 I'^Scragg V. Sallee, 24 Cal. App. 133, 140 Pac. 706. 
 
 ^870 Neb. 591. 
 
 i'29 Minn. 465, 467. 
 
 2»0'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36 ; Cain v. Wintersteen, 144 
 Mo. App. I, 128 S. W. 274; Graham v. Sly, i77 Mo. App. 348, 164 S. W. 136. 
 
 2iEngland v. Southwest Missouri R. Co., Mo. App. 1915, 180 S. W. 32; Cain 
 V. Wintersteen, 144 Mo. App. I, 128 S. W. 274. 
 
 22Day V. Kelley, 50 Men. 306, 146 Pac. 930. 
 
 23Barbour v. Shebor, 177 Ala. 304, 58 So. 276, i N. C. C. A. 120. 
 
 lOOl 
 
§ I 557 PLEADINGS 
 
 Even in those states where the burden as to contributory negligence 
 is on the plaintiff a special averment in the complaint that there was no 
 contributory negligence may not be necessary.^* 
 
 An averment that the plaintiff is free of fault and could not have 
 avoided the accident by the use of ordinary care is not a conclusion of 
 law but is an allegation of a substantive fact.^' 
 
 A complaint setting out that the plaintiff when within fifty feet of 
 the line of an intersecting street saw the defendant's automobile ap- 
 proaching 300 feet distant does not show that the plaintiff was negli- 
 gent as it does not show that the plaintiff at the time knew that it was 
 approaching at an excessive speed.^" 
 
 § 1557- Variance. — The proof offered to justify a judgment in a 
 civil action must substantially accord with the facts alleged in the com- 
 plaint; thus in a case where it was alleged that the defendant while 
 Operating his automobile at a high rate of speed, drove it against de- 
 fendant's horses. On the trial the court found that there was neither 
 fast driving nor an application of direct force. Held to be such a 
 variance as to bar recovery.^" 
 
 In criminal cases at common law, the rule under consideration is par- 
 ticularly insistent, but statutes in most of the states "have done much to 
 modify" it.^* The Massachusetts statute on this subject is found in 
 Revised Laws, Chap. 210, Sec. 35, which is in part, as follows : 
 
 "A defendant shall not be acquitted on the ground of variance 
 between the allegations and proof if the essential elements of the 
 crime are correctly stated, unless he is thereby prejudiced in his 
 defense," etc. 
 
 See Lackey v. The State,^° where a variance occurred concerning the 
 date of the commission of the offense. The court held it to be fatal. 
 
 2*Klein v. Burleson, 138 App. Div. 405, 122 N. Y. Suppl. 752. 
 
 2Bpuller V. Inman, 10 Ga. App. 680, 74 S. E. 287. 
 
 soPicken v. Miller, 59 Ind. App. 115, 108 N. E. 968. 
 
 2'Trout Brook Co. v. Hartford Elec. Light Co., ^^ Conn. 338, 59 Atl. 40S; 
 Merklinger v. Lambert, 76 N. J. Law 806 ; Matla v. Rapid Vehicle Co., 160 Mich. 
 639, I2S N. W. Repr. 708. 
 
 28Wharton's Crim. Ev., 9th ed.. Sec. go. 
 
 2853 Tex. Cr. 459, no S. W. Repr. 903. 
 
 1002 
 
PI,EADrNGS § 1558 
 
 It is a fundamental rule that the plaintiff must recover only on the 
 case presented in his complaint and the acts of negligence there set 
 out.'" 
 
 A declaration showing a head-on collision is not supported by evi- 
 dence that the plaintiff was attempting to cross the street when hit by 
 the defendant moving along the street.'^ 
 
 Where the sole claim of the plaintiff is that the defendant's automo- 
 bile was driven into his wagon it is error for the court to charge the 
 jury that recovery may be had for negligence in frightening plaintiff's 
 horses, as the plaintiff is bound by the claims in his complaint.'^ 
 
 But the jury need not find the defendant guilty in the very manner 
 set out in the declaration. It is sufficient if the plaintiff substantially 
 proves the negligence averred.'^ 
 
 If a plaintiff proves either allegation of negligence in his pleadings 
 he is entitled to recover.'* 
 
 It seems that it is not ground for new trial that the complaint states 
 that the automobile struck plaintiff's horse and caused him to run away 
 while the proof shows that the automobile ran so close to him as to 
 cause him to run away.** 
 
 § 1558. Speed as negligence. — It was objected that a complaint 
 showing that the automobile was running at a high and unlawful rate 
 of speed was defective in not charging actionable negligence, but this 
 is sufficient coupled with more specific allegations that the defendant 
 ran at the plaintiff negligently and carelessly.** 
 
 So allegations that an automobile came round a curve without warn- 
 ing at a great rate of speed and at a rate greater than was reasonable 
 and proper and greater than six miles an hour are sufficiently specific.*^ 
 
 soMerklinger v. Lambert, 76 N. J. L. 806, 72 Atl. 119; Capell v. New York 
 Transp. Co., 13s N. Y. S. 691, 150 App. Div. 723 ; Ray v. State, 142 Ga. 655, 83 
 S. E. S18. 
 
 *iGibbs V. Dayton, 166 Mich. 263, 131 N. W. 544. 
 
 82Ballard v. Durr, 165 Ky. 632, 177 S. W. 445. 
 
 »3Deputy V. Kimmell, 7Z W. Va. 595, 80 S. E. 919, 5i L. R. A. N. S. 989, 8 
 N. C. C. A. 369. 
 
 3*0'Neil V. Redfield, 158 Iowa 246, 139 N. W. SSS- 
 
 ssWeil V. Hagon, 166 Ky. 75°, i79 S. W. 83S. 
 
 seEast v. Amburn, 47 Ind. A. 530, 94 N. E. 895- 
 
 sTpuUer V. Inman, 74 S. E. 287, 10 Ga. App. 680. 
 
 1003 
 
§ 1559 PI<EADINGS 
 
 Statements in a complaint that the defendant was negligent in that 
 his automobile was being driven at a "high and negligent" rate of 
 speed at a public highway crossing and faster than the law allowed, and 
 was driven without signal and the chauffeur was negligent in not being 
 on the lookout for people in the street although the street was much 
 congested at the time, are sufficient statements of negligence.^^ 
 
 § 1559. Negligent steering as well as speed. — A charge of driv- 
 ing recklessly and carelessly and while driving at a speed of twenty-five 
 miles an hour causing said automobile to be thrown against said bridge 
 is an accusation of negligence not alone as to speed but also as to 
 manipulation or steering of the machine.'® 
 
 § 1560. Allegation of defendant's duty. — Although a complaint 
 for negligence must show a duty on the part of the defendant yet where 
 facts are alleged which disclose a duty then a general averment of neg- 
 ligence will make the complaint good.*" 
 
 A complaint showing that the plaintiff was in the street trying to 
 board a street car that the defendant came up behind him and saw him 
 and hit him is sufficient without alleging that it was the defendant's 
 duty to avoid hitting the plaintiff.*^ 
 
 § 1 56 1. Absence of warning. — ^A statement that the defendant 
 failed to give any warning of the approach of his car is sufficiently 
 specific.*^ 
 
 § 1562. Agency.— When it is sought to charge a person for the 
 acts of another as his agent, the petition should expressly or by nec- 
 essary implication, disclose not only the existence of the agency, but 
 the connection of the act with the employment." 
 
 But an averment that the defendant is chargeable with the conduct 
 of his chauffeur is surplusage and harmless.** 
 
 A complaint is good which sets out that the injuries were received as 
 the proximate result of the wanton act of the defendant's servant while 
 
 asWare v. Lamar, 85 S. E. 824, 16 Ga. App. 560. 
 ssFairchild v. Fleming, 125 Minn. 431, 147 N. W. 434- 
 
 "Wellington v. Reynolds, 177 Ind. 49, 97 N. E. i55, 2 N. C. C. A. 300; East v. 
 Amburn, 47 Ind. A. 530, 94 N. E. 895- 
 "Wellington v. Reynolds, 177 Ind. 49, 97 N. E. ISS. 2 N. C. C. A. 300. 
 *2Fuller V. Inman, 10 Ga. App. 680, 74 S. E. 287. 
 *8Lewis V. Amorous, 3 Ga. App. 50, 59 S. E. 338. 
 ♦^Fuller V. Inman, 74 S. E. 287, 10 Ga. App. 680. 
 
 1004 
 
PI,EADINGS § 1563 
 
 acting within the scope of his authority." It may even be sufficient to 
 allege the negligent acts of the defendant, its servants or agents." 
 
 Where the petition sets up agency of the driver for the defendant 
 and the defendant puts in merely an unverified general denial this raises 
 no issue and where the defendant tenders no evidence on the subject a 
 verdict for the plaintiff will not be set aside, especially where the driver 
 testifies that he had driven before for the defendant off and on for 
 some time although his regular duty was that of office work.*' 
 
 § 1563. Proximate cause. — Facts showing causal connection be- 
 tween the defendant's negligence and the injury should be pleaded. It 
 is not enough for example to allege that "on account of the horse be- 
 coming frightened at the automobile" the accident occurred.*' 
 
 § 1564. Stating that defendant ran into plaintiff. — ^A complaint 
 that the defendant carelessly ran into the plaintiff immediately after 
 the defendant's automobile had followed behind him is not open to the 
 objection that the plaintiff was run into in person instead of by the au- 
 tomobile.*' 
 
 § 1565. Personal injuries. — It is a general rule that recovery can- 
 not be had for injuries not pleaded,""" but a general allegation in a 
 declaration that the plaintiff was wounded and bruised about the head, 
 face, etc., that he became sick, sore, lame and disordered, is broad 
 enough to admit evidence that his hearing was affected."^ 
 
 So a complaint charging "severely injuring and bruising her in all 
 parts of her body" is sufficient to permit proof of permanent injury to 
 the ear."^ 
 
 § 1566. Allegation that automobile was on the public highway. 
 — An indictment for violation of the motor vehicle act is defective in 
 
 *5Barbour v. Shebor, 177 Ala. 304, 58 So. 276, i N. C. C. A. 120. 
 
 *8Pangburn v. Buick Motor Co., 151 App. Div. 756, 137 N. Y. S. 37- 
 
 *'Johnson v. Kansas City Home Tel. Co., 87 Kan, 441, 124 Pac. 528. 
 
 *8Coy V. Landers, 146 Mo. App. 413, 12S S. W. 789. 
 
 *9Wellington v. Reynolds, 177 Ind. 49, 97 N. E. iSS- 
 
 5»Ketchun v. Fillingham, 162 Mich. 704, 127 N. W. 702. 
 
 siGrogitzki v. Detroit Ambulance Co., 186 Mich. 374, 152 N. W. 923- 
 
 "^Thompson v. Aultman & Taylor Machine Co., 94 Kan. 453, 146 Pac. 1188, 
 
 9 N. C. C. A. 309. 
 
 1005 
 
§ 1567 PI.EADINGS 
 
 omitting the statement that the defendant operated or used his auto- 
 mobile on the public highway/^ 
 
 § 1567. Parties. — It is improper to join as parties plaintiff in one 
 action the claim of the wife for personal injuries and of the husband 
 for compensation for loss of the wife's services.^* 
 
 A petition cannot stand, setting out a cause of action in one count 
 against the chauffeur and in another count against the chauffeur and 
 owner together.^" 
 
 § 1568. Last clear chance. — A complaint showing that the motor- 
 man could have seen the plaintiff approaching in his automobile and 
 could have stopped his car in time to avoid the accident and knew that 
 an accident would occur if he did not apply his brakes and that he did 
 not do so clearly furnishes an application of the last clear chance 
 theory.^* 
 
 A complaint showing that the defendant carelessly drove his automo- 
 bile against the plaintiff is sufficient to invoke the doctrine of the last 
 clear chance.^^ 
 
 § 1569. Plea of not guilty. — In an action of negligence an averment 
 that the defendant did not discover the peril of the plaintiff in time to 
 avoid the accident is covered by a plea of not guilty.^' 
 
 53Ex parte Worthington, 21 Cal. App. 497, 132 Pac. 82. 
 
 6*Brickner v. Kopmeier, 133 Wis. 582, 113 N. W. 414- 
 
 ssgchumer v. Register, 12 Ga. App. 743, 78 S. E. 73i, 8 N. C. C. A. 300. 
 
 56Myers v. Winona Interurban Ry. Co., 58 Ind. App. 516, 106 N. E. 377- 
 
 67Picken V. Miller, 59 Ind. App. nS, 108 N. E. 968. 
 
 ssPorter v. Jacksonville Electric Co., 64 Fla. 409, 60 So. 188. 
 
 1006 
 
CHAPTER LII 
 
 PRACTICE IN NEGUGENCE CASES. 
 
 I. In Generai,. 
 
 § 1570. General conduct of the trial. 
 
 1571. Harmless error. 
 
 1572. Failure to produce witnesses. 
 
 1573. Forcing jury to agree. 
 
 1574. Points as to evidence must be taken at once. 
 
 1575. Points must be raised in lower court. 
 
 1576. Power of appellate court to reverse. 
 
 1577. Misconduct of jurors. 
 
 1578. Physical examination of plaintiff. 
 
 1579. Cross-examination. 
 
 1580. Argument. 
 
 1581. Uniting action for purchase-price with action for conversion. 
 
 1582. Prejudice of jurors. 
 
 § 1570. General conduct of the trial. — It is intended merely to call 
 attention to those broad lines of procedure along which all trials in 
 negligence cases are drawn, reserving for subsequent consideration, 
 special matters of practice or rules of evidence. In Steele v. Burk- 
 hardt,^ Chief Justice Chapman, in speaking of cases of the character 
 now the subject of consideration, says: 
 
 "Actions founded on negligence are governed by a plain 
 principle. The plaintiff's declaration alleges that the injury 
 happened in consequence of the negUgence of the defendant. 
 This is held to imply that there was no negligence on the part 
 of the plaintiff which contributed to the injury; and to throw 
 upon him the burden of proving the truth of the allegation. 
 It may depend upon care exercised by himself personally, or 
 by his coachman, if he is riding, or by his teamster, in his ab- 
 sence, or by the person in charge of him, if he is an invalid or 
 an infant of tender years, or in any way so situated as to need 
 the care of another person in respect to the matter. If there 
 was want of care, either on the part of himself or the person act- 
 ing for him, and the injury is partly attributable directly to that 
 
 1104 Mass. 59, 60. 
 
 1007 
 
§ 1 571 PRACTICE IN NUGUGENCB CASBS 
 
 cause he cannot recover, simply because he cannot prove what 
 he has alleged. Among the numerous cases sustaining this view 
 are Parker v. A.dams, 12 Met. (53 Mass.) 415; Horton v. Ip- 
 swich, 12 Cush. (66 Mass.) 488; Holly v. Boston Gas Light 
 Co., 8 Gray (74 Mass.) 131 ; Wright v. Maiden & M. R. Co., 
 4 Allen (86 Mass.) 283; Callahan v. Bean, 9 Allen (91 Mass.) 
 401." 
 
 Hill V. Winsor'' was an action for damages, growing out of alleged 
 negligence. Among other things, defendant claimed exemption on the 
 ground of "pure accident." The jury found for the plaintiff. In de- 
 termining the appeal, Mr. Justice Colt, speaking for the court, says : 
 
 "In actions of this description, the question whether the plain- 
 tiff was himself in the exercise of due care, and the defendant's 
 act negligent ; whether the injury suffered was due to that act, 
 as well as the amount of damage to the plaintiff, are, as a gen- 
 eral rule, practical questions of fact to be settled by the knowl- 
 edge and experience of the jury. The defendant's liability de- 
 pends upon circumstances which, as the cases arise, are of in- 
 finite variety and combination. If there is any evidence upon 
 which the jury may legally found a verdict for the plaintiff, that 
 verdict cannot be disturbed on exceptions as matter of law, un- 
 less there has been some error in the conduct of the trial, or the 
 judge has failed to state the true test of liability in his instruc- 
 tions as applied to the facts disclosed." * * * "They" (the 
 jury) "must have also found that the plaintiff was himself in the 
 exercise of due care in attempting to escape the peril to which 
 he was exposed by the defendant's conduct, and that his injury 
 was therefore due solely to the defendant's negligence." 
 
 § 1 57 1. Harmless error. — An error in allowing a motion to strike 
 out the defendant's cross-complaint is harmless where each issue set 
 up in the cross-complaint is found against the defendant.' 
 
 Reading a statute which did not apply to the jury is harmless error 
 where the provisions of the statute did not differ from the common 
 law.* 
 
 Where it is clear from the evidence that the defendant is negligent 
 and the plaintiff is not after a verdict for the plaintiff the failure of 
 
 2ii8 Mass. 251. 
 
 sWood Transfer Co. v. Shelton, 180 Ind. 273, loi N. E. 718. 
 
 *Roach V. Hinchcliff, 214 Mass. 267; 101 N. E. 383, 4 N. C. C. A. 29. 
 
 1008 
 
IN GENBRAI, § 1572 
 
 the court to give precise instructions as to the duties of the parties is 
 not reversible error." 
 
 Although instructions to the jury as to the right to use certain parts 
 of the street may be subject to criticism yet they are not harmful where 
 the plaintiff had a clear right to use the street for boarding a street car.' 
 
 The inadvertant use in a charge of the word "unusual" instead of 
 "usual" in instructing as to liability of a county for a bridge breaking 
 under a truck of "usual" weight is not ground for error where it is 
 evident from the balance of the charge that the jury could not have 
 been misled by it.' 
 
 An instruction that if the plaintiff entered a garage with a gasoline 
 can and funnel and did not exercise reasonable care he cannot recover 
 is not erroneous simply because it mentions the can and funnel which 
 was immaterial.* 
 
 An error in the judge's charge as to the maximum legal speed is im- 
 material when it is admitted that the defendant was driving faster than 
 the highest maximum speed.' 
 
 § 1572. Failure to produce witnesses. — A reference in argument 
 to the failure of a party to produce certain witnesses is not in itself in- 
 flammatory or a ground for reversal especially where the opposing 
 counsel has answered explaining why they were not summoned.^" 
 
 The fact that a plaintiff does not call a physician who attended him 
 at the hospital to testify as to his injuries should not be considered as 
 detrimental to the plaintiff's case.^^ 
 
 § 1573- Forcing jury to agree. — ^An instruction unduly emphasis- 
 ing the duty of the jury to agree upon a verdict which has the inevitable 
 tendency of causing the minority to give way is erroneous.^^ 
 
 § 1574. Points as to evidence must be taken at once. — A motion 
 to strike out evidence as being based on hearsay should be made im- 
 mediately.^* 
 
 =Wight V. Long, 160 Ky. 636, 170 S. W. 25. 
 
 eWellington v. Reynolds, 177 Ind. 49 ; 97 N. E. I5S, 2 N. C. C. A. 300. 
 
 ^Desch V. Leliigh County, 231 Pa. 511, 80 Atl. 992. 
 
 sStodgel V. Elder, Iowa 191S, IS4 N. W. 877. 
 
 BHeath v. Seattle Taxicab Co., 73 Wash. 177, 131 Pac. 843, 5 N. C. C. A. 189. 
 
 i»Vesper v. Lavender, Tex. Civ. App. 1912, 149 S. W. 377- 
 
 "Rump V. Woods, 50 Ind. App. 347 ; 98 N. E. 369. 
 
 isPicken v. Miller, 59 Ind. App. nS, 108 N. E. 968. 
 
 "Luckett V. Reighard, 248 Pa. 24, 93 Atl. ^^^^ 
 
 1009 
 64 
 
§ 1575 PRACTICE IN nbgligbnce cases 
 
 § 1575- Points must be raised in lower court. — If a litigant de- 
 sires to contest the validity of a municipal ordinance he must do so at 
 the trial and cannot raise the point first an appeal.^* The defendant 
 cannot complain of the submission to the jury of the question of con- 
 tributory negligence unless he requested a peremptory charge in his 
 favor on that issue." 
 
 § 1576. Power of appellate court to reverse. — The appellate court 
 cannot reverse a case upon the weight of the evidence.^' But in a clear 
 case the court on inspection of the record reversed the decision of the 
 lower court refusing to set aside a verdict for the plaintiff .^^ A verdict 
 on conflicting evidence will not be set aside on appeal.^' Where a judge 
 sitting without a jury decides a case on the facts his decision will not be 
 reversed unless clearly opposed to a preponderance of the evidence." 
 
 A verdict for the plaintiff may be set aside where there is a clear 
 failure to show the defendant's negligence and that the plaintiff's negli- 
 gence was not a cause of the accident.^" 
 
 § 1577. Misconduct of jurors. — Statements in the jury room by 
 jurors that the defendant was well able to pay any judgment and that 
 he had been seen at other times running at high speed are such miscon- 
 duct as form a basis for a new trial.^^ 
 
 § 1578. Physical examination of plaintiff. — The appellate court 
 will not overrule the exercise of the discretion of the lower court in 
 refusing to order a physical examination of the plaintiff after two trials 
 have been had without such examination.^^ 
 
 § 1579. Cross-examination.— Where the plaintiff examines the de- 
 fendant's chauffeur as to the accident the defendant may show by cross- 
 examination that he was not acting in the scope of his emplyoment.^^ 
 
 "Wood Transfer Co. v. Shelton, 180 Ind. 273, loi N. E. 718. 
 
 "Texas Cent. R. v. Dumas, Tex. Civ. App. 1912, 149 S. W. 543- 
 
 "Wellington v. Reynolds, 177 Ind. 49, 97 N. E. I5S. 2 N. C. C. A. 300. 
 
 "Prey v. Rhode Island Co., 37 R. I. 96, 91 Atl. i. 
 
 isWood Transfer Co. v. Shelton, 180 Ind. 273, lOl N. E. 718. 
 
 I'Laughlin v. Seattle Taxicab & Transfer Co., 84 Wash. 342, 146 Pac. 847. 
 
 20Case V. Connecticut Co., 85 Conn. 711, 83 Atl. 1020. 
 
 2iCresswell v. Wainwright, 154 Iowa 167, 134 N. W. 594. 
 
 22Graham v. Sly, i77 Mo. App. 348, 164 S. W. 136. 
 
 23Colwell V. ^tna Bottle & Stopper Co., 33 R. I. 531, 82 Atl. 388. 
 
 lOIO 
 
IN GENERAI< § 1580 
 
 § 1580. Argument.— A statement about a driver that he has killed 
 a little child "mangled little tots" is not libellous as it does not charge 
 felonious intent.^* 
 
 The argument of the plaintiff's attorney that the defence that the 
 driver was not acting in the scope of his employment is customary is 
 not "inflammatory'' and when the remark is withdrawn and the jury 
 are told to disregard it there is no evidenee that it injured the defend- 
 ant.'= 
 
 One prosecuting an automobilist for manslaughter may argue to the 
 jury "the automobiles of the town are attempting to control and mo- 
 nopolize the streets and if they are not stopped they will run you and 
 me who do not own them off the streets. * * *- poj- t^g protection 
 of your wives and little children I appeal to you to stop this reckless 
 driving of automobiles that you see from time to time on the streets by 
 making an example of this defendant, by giving him the limit at hard 
 labor in the penitentiary." This is an appeal to the jury to enforce the 
 law for the protection of the public.^" 
 
 An appeal to the jury by the prosecution to punish men who run over 
 little children and portraying the situation of the mother of the child is 
 not improper argument.^^ 
 
 § 1 58 1. Uniting action for purchase-price with action for con- 
 version. — Under New York practice it appears that an action to recover 
 the purchase-price cannot be joined to an action for conversion as one 
 cause is predicated on the idea that the title of defendant to the old car 
 is good and that he had promised to repay the value thereof, while the 
 second assumed the title to the old car to remain in the plaintiff.^' 
 
 § 1582. Prejudice of juries. — It is a well-known fact that in many 
 communities and in juries drawn from those sections there is a strong 
 prejudice against automobilists and the appellate court may consider 
 this tendency in considering jury verdicts.^* The court remarks that 
 
 2*r)iener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S. W. 1143, 33 L- R- A. 
 N. S. 216. 
 
 2sStudebaker Bros. Co. v. Kitts, Tex. Civ. App. 1912, 132 S. W. 464, 6 N. C. 
 C. A. 63. 
 
 28Bowen v. State, 100 Ark. 232, 140 S. W. 28. 
 
 27State V. Biewen, 159 Iowa 256, ISI N. W. 102. 
 
 28Drexel v. Hollander, 112 N. Y. App. Div. 25, 98 N. Y. S'. 104. 
 
 soGregory v. Slaughter, 124 Ky. 34S, 99 S. W. 247, 124 Ann. St. Rep. 402, 8 L. 
 R. A. N. S. 1228. 
 
 lOII 
 
§ 1583 PRACTICE IN NEGIvIGBNCE CASES 
 
 verdicts against motorists do not carry the compelling power as in other 
 cases owing to the prejudice which exists among the people especially in 
 rural communities, against automobiles.^" 
 
 However since automobiles have become so common and cars are 
 made so low in price as to be within the reach of persons of moderate 
 means this prejudice is now fast disappearing. 
 
 II. Instructions to Jury 
 
 § 1583. Charge not clear. 
 
 1584. Refusal of immaterial request. 
 
 1585. Right of party to instruction as to law. 
 
 1586. Right to instruction as to contributory negligence pleaded. 
 
 1587. Charge must not cover matters not in pleadings. 
 
 1588. Defining unlawful speed. 
 
 1589. Charge must be confined to evidence. 
 
 1590. Need not charge in absence of evidence. 
 
 1591. Assuming disputed questions. 
 
 1592. Disputed facts must be left to jury. 
 
 1593. Specific acts of negligence claimed to be submitted^ to jury. 
 
 1594. Financial condition of parties. 
 
 § 1583. Charge not clear. — A new trial cannot be ordered on a 
 charge that was more complex than was necessary and on the ground 
 that the jury did not understand it as it is presumed that jurors are in- 
 telligent and honest.*^ 
 
 Instructions will be upheld which do not in terms tell the jury that 
 they must find negligence to be the proximate cause of the injury if 
 that appears on the entire instruction to be implied.'" 
 
 An instruction to the jury which lays down two, standards of duty 
 by which to measure the conduct of the defendant is erroneous.'' 
 
 § 1584. Refusal of immaterial request. — The court may properly 
 refuse as being unimportant a request that the jury are to treat the 
 case as though it were brought against the chauffeur.'* 
 
 § 1585. Right of party to instruction as to law. — ^The driver of an 
 automobile is entitled to an instruction that he has a right to use the 
 
 soCarter v. Potter, no Maine 545, 86 Atl. 671. 
 siBagwell v. Southern R. Co., 167 N. C. 611, 83 S. E. 814. 
 s^Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 Pac. 99. 
 8»Rump V. Woods, 50 Ind. App. 347. 98 N. E. 369- 
 3*Ribas V. Revere Rubber Co., 37 R. T. 189; 91 Atl. 58. 
 
 1012 
 
INSTRUCTIONS TO JURY § 1586 
 
 left roadway where this is the law.^= The failure of the court to in- 
 struct specifically as to gross negligence at railroad crossings but instead 
 to read from a prior decision of the Supreme Court which did not de- 
 fine gross negligence is error .^'' 
 
 § 1586. Right to instruction as to contributory negligence plead- 
 ed.— Where contributory negligence is pleaded it is error not to in- 
 struct the jury as to it which error requires a reversal." 
 
 § 1587- Charge must not cover matters not in pleadings. — Where 
 the only negligence pleaded is unlawful speed it is error to charge that 
 the plaintiff may recover if the defendant failed to keep a vigilant 
 watch while approaching the plaintiff's team.^* It is error to submit to 
 the jury an issue as to brakes and horn and lights not raised by the 
 pleadings.*' 
 
 § 1588. Defining unlawful speed. — An unlawful rate of speed may 
 be defined by the court in the language of the statute in instructing 
 the jury.*" 
 
 § 1589. Charge must be confined to evidence. — Where the only 
 evidence is that the automobile was going at a rate of ten miles an hour 
 it is improper to charge on the theory that it was exceeding fifteen miles 
 an hour. The jury should have been left to find the speed and de- 
 termine whether that speed was greater than was reasonable.*^ 
 
 Where there is ho evidence that the defendant's automobile was mak' 
 ing any unusual noise it is error to charge on his negligence for allow- 
 ing it to do so.*^ 
 
 § 1590. Need not charge in absence of evidence. — Where plain- 
 tiff's evidence does not raise the issue of contributory negligence the 
 refusal of a special charge that the jury should consider all the evidence 
 on this issue and not confine themselves to that of the defendants alone, 
 is proper.*^ 
 
 3'Raymond v. Hill, 168 Cal. 473, 143 Pac. 743- 
 
 soRothwell V. New York, N. H. & H. R., 223 Mass. 550, 112 N. E. 231. 
 
 "Rayburn v. Phillips, 160 Mo. App. 534, 140 S. W. 977. 
 
 3«Rayburn v. Phillips, 160 Mo. App. S34, 140 S. W. 977- 
 
 sBRayburn v. Phillips, 160 Mo. App. 534, 140 S. W. 977- 
 
 "Shultz V. State, 89 Neb. 34, 130 N. W. 972, 33 L- R- A. (N. S.) 403- 
 
 *iRayburn v. Phillips, 160 Mo. App. 534, 14° S. W. 977- 
 
 *2Cresswell v. Wainwright, 154 Iowa 167, I34 N. W. 594- 
 
 *3Solan V. Pasche, (Tex. Civ. App.), IS3 S. W. 672. 
 
 IOI3 
 
§ 159 1 PRACTICE IN NEGLIGENCg CASES 
 
 § 1 59 1. Assuming disputed questions. — An instruction is erron- 
 eous which assumes that the defendant's automobile struck the plain- 
 tiff's wagon where this is disputed, and that the plaintiff was injured 
 where this was disputed.** 
 
 § 1592. Disputed facts must be left to jury. — Where the evidence 
 is clear that the plaintiff was injured by the defendant's machine and 
 throughout the court left to the jury the question whether the act was 
 actionable or whether the facts served to fix liability on the defendant 
 this is not a charge on the facts.*^ 
 
 It is for the jury to decide whether the automobile stopped before 
 hitting the plaintiff, a pedestrian, or hit him and ran on twelve feet 
 where there is conflicting evidence.*" In action for injuries in collision 
 with taxicab, when evidence as to collision was conflicting, question was 
 for jury.*' Where the complaint is based on two causes of action, one 
 negligence and the other wilfulness, a nonsuit cannot be ordered unless 
 there is no evidence to sustain either.** 
 
 § 1593. Specific acts of negligence claimed to be submitted to 
 jury. — When specific acts of negligence are relied upon the judge 
 should instruct the jury in regard to them and require the jury to find 
 whether the defendant was guilty in regard to them and not submit 
 the question in general terms.*' 
 
 Where a petition alleges particular acts of negligence the instructions 
 should submit such particular negligence only and not cover negligence 
 in general.^" 
 
 The defendants have a right to have the judge charge upon and call 
 the attention of the jury to evidence presented by them.^^ It is error 
 for the court to allow the jury to find for the plaintiff if they find the 
 accident was caused by the "negligent acts of the defendant" without 
 specifying what those negligent acts are as this leaves it to them "to 
 
 **Flannigan v. Nash, 190 Mo. App. S78, 176 S. W. 248. 
 *5Burns v. Kendall, 96 S. C. 385, 80 S. E. 621. 
 
 ^Bachelder v. Morgan, 179 Ala. 339. 60 So. 815 ; Ann. Cas. 1915, c. 888, S N. 
 C. C. A. 187, 7 N. C. C. A. s. 
 I'Aronson v. New York Taxicab Co., 125 N. Y. S. 7S6 (Sup. App. Term, 1911). 
 48McCown V. Muldrow, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914, A. 139. 
 *9McDonnell v. Columbia Taxicab Co., 168 Mo. App. 351, ISI S. W. 767. 
 eoClark V. General Motor Car Co., 177 Mo. App. 623, 160 S. W. 576- 
 5iTexas Traction Co. v. Wiley, (Tex. Civ. App. 1914), 164 S. W. 1028. 
 
 1014 ' 
 
INSTRUCTIONS TO JURY § 1 594 
 
 rove through the evidence or even outside of it and determine what was 
 actionable negligence."^'' 
 
 The court is bound to charge the jury as to the law in case the de- 
 fendant's claim as to the facts is correct, having previously charged 
 them as to the law in case the plaintiff's claim is correct.^^ 
 
 An instruction need not specifiy in every paragraph all the circum- 
 stances.^* 
 
 The judge is not bound to select evidential facts that might or might 
 not be found by the jury and separate them from other parts of the 
 testimony as subjects for a special instruction.^' 
 
 § 1594. Financial condition of parties. — The court must not 
 charge the jury in such a way as to lead them to take into account the 
 relative financial condition of the parties. However the language: 
 "that in determining the question as to whether the defendant was ex- 
 ercising reasonable care and diligence upon the occasion in question, 
 you have a right to take into consideration the situation and condition 
 of the parties," is not error, as implying that the jury may consider the 
 wealth of one party and the poverty of the other."" 
 
 52Rayburn v. Phillips, 160 Mo. App. 534, 140 S. W. 977. 
 
 "Harnau v. Haight, (Mich.) 1916, 155 N. W. 563. 
 
 o^Weaver v. Carter, 28 Cal. App. 241, 152 Pac. 323. 
 
 5=Bourn« v. Whitman, 209 Mass. 155, 95 N. E. 404. 35 L- R- A. N. S. 701 (note), 
 2 N. C. C. A. 317. 
 
 ""Christy v. Elliott, 216 111. 31, 74 N. E. 1035, i L. R. A. N. S. 215, 108 Am. St. 
 R. 196. 
 
 1015 
 
CHAPTER LIII 
 
 EVIDENCE. 
 
 I. In GeNBRAi, 
 
 § I59S- Scope of chapter. 
 
 1596. The word "evidence." 
 
 1597. There are two kinds of evidence, "Direct" and "Circumstantial." 
 
 1598. "Conclusive" evidence. 
 
 1599. "Presumptive" evidence. 
 
 1600. Judicial notice. 
 
 1 60 1. Law of another state. 
 
 1602. "Best evidence." 
 
 1603. Best and secondary evidence.^ 
 
 § 1595. Scope of chapter. — It is unusual to find a reported motor 
 vehicle case that does not carry with it charges of improper speed 
 operation, involving in the proof many of the rules of evidence. No 
 more simple or direct method presents itself of showing the effect of 
 these rules in such cases, and the influence thereon of the statutory pro- 
 visions under consideration, than by a summary of the general rules of 
 evidence usually applicable to trials of this kind. No refinements of 
 the law of evidence will be considered. The subject will be presented 
 on broad lines to obtain a clear conception of the force and effect of 
 common law and statute rules, in their relation to each other. 
 
 § 1596. The word "evidence" and the word "testimony" are fre- 
 quently used interchangeably. The latter is more often applied to the 
 oral statements of witnesses.'' 
 
 The true test and "the true question in trials of fact is not whether 
 it is possible that the testimony may be false, but whether there is suf- 
 ficient probability of its truth; that is, whether the facts are shown by 
 competent and satisfactory evidence." Things established by such evi- 
 dence are said to be proved.* 
 
 ^Evidence of identification of automobile, see ante, § 212. 
 ^Stephen's Dig. Law of Ev. (Chase, 2 ed.), 4. 
 
 81 Greenleaf on Evidence (igth ed.), Sec. i. See Simeone v. Lindsay, 6 Pen. 
 (Del.) 224, 6s Atl. 778. 
 
 IO16 
 
IN G^NERAI, § 1597 
 
 § 1597- There are two kinds of evidence, "direct" and "circum- 
 stantial." — Direct evidence is often spoken of as "positive testimony" 
 because the witness speaks of the fact from his "own actual and per- 
 sonal knowledge of its existence," such as a thing seen, heard, felt, 
 tasted or smelled. Cimimstantial evidence is that kind of proof which 
 results from the application of "direct" testimony to collateral facts 
 having connection with the fact to be proved, from which is to be in- 
 ferred the existence or non-existence of that fact.* 
 
 There are differing theories as to the origin of human knowledge, 
 and more or less controversy exists between physicists and psychists 
 on that subject. With such contentions we have nothing to do. It is 
 sufficient if we rest the point on the broad distinction of the evidence of 
 the senses as falling within the class of direct testimony, and conclu- 
 sions concerning the main issue, to be drawn from collateral facts satis- 
 factorily proved, as falling within the class of circumstantial evidence. 
 
 § 1598. "Conclusive" evidence is that which possesses such weight 
 and force that it cannot be contradicted, or that the law will not permit 
 to be questioned (like the great seal of the nation or state) ; evidence 
 that is incontrovertible— unanswerable. In a proper sense, it means 
 putting an end to debate, leading to a conclusion.^ 
 
 § 1599. "Presumptive" evidence is in its essence circumstantial evi- 
 dence. It consists in the proof of facts incidental to or connected with 
 the main fact sought to be proved, which when taken together and 
 with that fact, inferentially establish or prove the fact in question to a 
 reasonable degree of certainty." 
 
 § 1600. Judicial notice.'' — "Courts must take notice of that which 
 is a matter of common knowledge and experience."^ In Bx parte 
 Berry, ^ Mr. Justice Mcf arland remarks : 
 
 "In order to at all consider the question here involved, we 
 must assume judicial knowledge of an automobile and its char- 
 acteristics and the consequences of its use. * * * We may 
 
 *i Greenleaf on Evidence, Sec. 13 (15th ed.). 
 ^2 Words and Phrases Jud. Def., 1388. 
 
 86 Words and Phrases Jud. Def., S54i ; i Greenleaf on Evidence, Sec. 13 (iSth 
 ed.). 
 ■^See §§ 1652-1655, Presumptions. 
 sGaynor v. Old Colony, Etc., R., 100 Mass. 211. 
 9i47 Cal. 523, 82 Pac. 44- 
 
 I0T7 
 
§ l6oi EVIDENCfi 
 
 assume, therefore, to have what is common and current knowl- 
 edge about an automobile." 
 
 § 1 60 1. Law of another state. — It is the usual rule in the state 
 courts that the law of another state is a fact which must be proved like 
 any other fact and is usually shown by the evidence of experts.^" 
 
 But the rule of the federal courts is otherwise and where the acci- 
 dent occurred in another state than where suit is brought the federal 
 court will take judicial notice of what is the law of that state." 
 
 § 1602. "Best evidence." — An important rule "which governs in 
 the production of evidence is that which requires the best evidence of 
 which the case in its nature is susceptible. This rule does not demand 
 the greatest amount of evidence which can possibly be given of any 
 fact, but its design is to prevent the introduction of any which, from 
 the nature of the case, supposes that better evidence is in the possession 
 of the party."^^ The very best evidence of a fact is called "primary" 
 evidence. When it is shown that primary evidence is out of the party's 
 power, beyond reach and unattainable, then and not until then, is the 
 "next best" evidence admissible. All evidence falling short in its degree 
 of primary is termed "secondary" evidence.^^ 
 
 § 1603. Best and secondary evidence. — There are also "degrees" 
 in oral evidence. The words "best" and "secondary" evidence have 
 something of a technical meaning, but the degree of oral evidence goes 
 to its weight and sufficiency apart from it character as primary or sec- 
 ondary.^* 
 
 II. Admissions or Declarations 
 
 § 1604. Admissions, confessions and assertions. 
 
 1605. Conversations. 
 
 1606. Declarations by agent. 
 
 1607. Admission as to speed. 
 
 1608. Exclamations of witnesses. 
 
 1609. Statement by a companion of a party. 
 
 1610. Unidentified statement in writing. 
 
 161 1. Request of bystander to defendant. 
 
 "See Chase's Stephens on Evidence (2d ed.), p. 145. 
 
 "Lane v. Sargent, (C. C. A. First Cir.), 217 Fed. 237, 133 C. C. A. 231. 
 
 i^iGreenleaf on Evidence, sec. 82 (isth ed.). 
 
 "I Greenleaf on Evidence, sec. 84 (iSth ed.). 
 
 "Chamberlain v. Carter, 36 Mass. 190. 
 
 IO18 
 
ADMISSION OR DECLARATIONS § 1604 
 
 1612. Statements as to ownership and agency. 
 
 1613. Declarations as evidence of ownership. 
 
 1614. Acts and words after accident. 
 
 1615. Admission of liability. 
 
 1616. Offer of compromise. 
 
 1617. Offer to care for injured. 
 
 1618. Statement of facts. 
 
 1619. Inconsistencies in testimony. 
 
 1620. Waiver of objection to evidence. 
 
 § 1604. Admissions, confessions and assertions are admissible, 
 particularly when against the interest of the person making them, 
 whether made to an individual or to an officer, provided in the latter case 
 "no inducement or influence of any kind" is used to obtain the admis- 
 sion or confession. ^° 
 
 § 1605. Conversations between the parties themselves anterior to 
 the accident are admissible under certain circumstances as bearing upon 
 the question of due care. Thus, in the case of Sullivan v. Scripture,^' 
 a horse had been frightened while in the hands of plaintiff's servants. 
 Evidence of conversation between the servants just prior to the acci- 
 dent was offered under objection. The court, by Mr. Justice Metcalf, 
 say: 
 
 "What each servant directed or advised the other to do_ with 
 the horse immediately before the horse ran upon the plaintiff, 
 seems to us to have been competent evidence for the consider- 
 ation of the jury in deciding the question of the negligence of 
 either of the servants or of both." 
 
 In Belleveau v. Lowe Supply Co.," a motor vehicle case, the circum- 
 stances were that as the plaintiff and his companions were walking 
 along the highway, they frequently looked back to see if any cars were 
 
 "Com. V. Knapp, 26 Mass. 496, also 27 Mass. 477; Lund v. Tyngsboro (Inhab.), 
 63 Mass. 36, 42; Com. v. Sturtivant, 117 Mass. 122, 139; Morris v. The State, 
 35 Tex. Crim. Reps. 313, 316; Stephen's Dig. Law of Ev. (Chase, 2d ed.), 63; 
 Shinkle V McCullough, 116 Ky. 960, 1903, V N. W. 196; Simeone v. Lmdsay, 6 
 Pen (Del ) 224, 65 Atl. 778; Clark v. Van Vleck, 13S Iowa 194, "2 N. W. 648; 
 Bennett v. Busch, 75 N. J. L. 240, 67 Atl. 188 ; Walkup v. Beebe, 139 Iowa 39S, 1 16 
 N. W. 321; Gen. Tire Repair Co. v. Price, 123 N. Y. App. Div. 789, nS N. y. 
 Supp. 171, 1909; Moon v. Matthews, 227 Pa. St. 488, 76 Atl. 219. 
 
 i«8s Mass. 564. 
 
 "200 Mass. 237, 241, 86 N. E. 301. 
 
 IO19 
 
§ i6o6 EVIDENCE 
 
 coming up behind. In connection with this, testimony as to what was 
 said between them was offered on the question of plaintiff's due care. 
 On review in the Supreme Court, Mr. Justice Morton says : 
 
 "This evidence was excluded. We think that it should have 
 been admitted for the purpose for which it was offered. It 
 could not be ruled as matter of law that the plaintiff and his 
 companions had not the right to rely upon each other. Whether 
 in the exercise of due care they were justified in doing so was 
 for the jury to say. If they were justified in relying upon each 
 other, then what one said to the others as she turned and looked 
 back was clearly competent as tending to show in connection 
 with the other facts in the case, the circumstances under which 
 the plaintiff acted and with reference to which his conduct was 
 to be judged." 
 
 §; 1606. Declarations by agent. — It is a general rule that declara- 
 tions made by an agent are not evidence against his principal unless 
 directly authorized or made as part of the res gesta}* 
 
 Thus an exclamation of a motorman, immediately after a collision, 
 "Are you hurt? It's a wonder I didn't kill you. I was running full 
 head down that hill," is admissible as part of the "res gestce."^^ 
 
 Where a motorman of an electric car says to bystanders immediately 
 
 after the accident "that ran into me and I rang the gong for 
 
 him," this evidence is properly received as a spontaneous exclamation 
 as part of the "res gestce'' and also as contradicting his evidence on the 
 stand when he admitted running into the plaintiff. It also showed he 
 was excited.'"' 
 
 Statements made by the driver of an automobile, the servant of the 
 owner that she was willing to pay damages are not admissible as his 
 position as driver does not ipso facto render him the agent of the owner 
 to settle for damages.^^ The statements of the chauffeur are not com- 
 petent against the owner when made at the time of the accident when 
 the chauffeur was driving the automobile without authority.'^ 
 
 A statement by a chauffeur before the accident that his employer 
 was out of town and that he was going to use the automobile for his 
 
 "Scheel v. Shaw, (Pa. 1916) 97 Atl. 685. 
 
 i»Shore V. Dunham, Mo. App. 191S, 178 S. W. goo. 
 
 20Hedlund v. Minneapolis, Etc., Ry. Co., 120 Minn. 319, I39 N. W. 603. 
 
 aiPannell v. Allen, 160 Mo. App. 714, 142 S. W. 482. 
 
 "Riley v. Roach, 168 Mich. 294, i34 N, W. 14, 37 L. R. A. N. S. 834. 
 
 1020 
 
ADMISSIONS OR DECLARATIONS § 1607 
 
 own purposes is inadmissable as hearsay on the question whether he 
 was at the time of the accident in the employ of defendant.^' 
 
 Statements by defendant's chauffeur after the accident as to the 
 cause of the injury are not competent as against the defendant as sub- 
 stantive testimony but may be proven for the purpose of contradicting 
 him.2* 
 
 § 1607. Admission as to speed. — An admission of the defendant 
 as to the speed at which he was driving may be put in evidence.^" 
 
 § 1608. Exclamations of witnesses, — There is much conflict in the 
 application of rules as to what exclamations of bystanders are admis- 
 sible as part of the res gestce. 
 
 Testimony of the exclamations of witnesses as they saw the automo- 
 bile go by are competent, being indicitative of their opinion of its 
 speed.^* But an exclamation by one passenger on a street car to another 
 as an automobile passes it as to its speed is not admissible as part of the 
 res gestce." 
 
 § 1609. Statement by a companion of a party. — A statement of an 
 occupant of an automobile uttered immediately after the accident, 
 "We were going too fast and I told John so," is not admissible as a part 
 of the res gestce as against another occupant. It was a mere opinion or 
 conclusion of the deceased.^' So a statement by the father of the plain- 
 tiff immediately after the accident may be excluded as hearsay and not 
 a part of the res gestce.^^ 
 
 § 1610. Unidentified statement in writing. — An unsigned uni- 
 dentified statement as to defects in a car found in the car by a purchaser 
 is not evidence against the seller.'" 
 
 § 161 1. Request of bystander to defendant. — The fact that the de- 
 fendant was arrested immediately after the accident and that a by- 
 
 23Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236. 
 " Ballard v. Durr, 165 Ky. 632, 177 S. W. 445- 
 2= Scragg V. Sallee, 24 Cal. App. 133, 140 Pac. 706. 
 28Madding v. State, 118 Ark. 506, i77 S. W. 410. 
 27Gouin V. Ryder, R. I. 191S, 94 Atl. 670. 
 28Whitney v. Sioux City, 172 Iowa 336, 154 N. W. 497- 
 2»Clark V. Van Vleck, 13S Iowa 194, "2 N. W. 648. 
 aoFuIton Bank v. Mathers, 161 Iowa 634, 143 N. W. 400. 
 
 I02I 
 
§ l6l2 EVIDENCE 
 
 stander requested him to take the plaintiff home in his automobile is 
 properly shown as a part of the res gestcs.^^ 
 
 § 1612. Statements as to ownership and agency.''' — ^The defend- 
 ant's admission of ownership and agency is admissible against him.'' 
 
 An admission by the defendant that his automobile while being driven 
 in his absence was being driven on his business is not to be excluded as 
 based on mere hearsay. It may have been based on instructions given 
 by him.'* 
 
 It is competent to show that at the place of the accident, and im- 
 mediately thereafter the driver, the brother of the defendant, had 
 stated that the machine belonged to the defendant."' Where both de- 
 fendant and his son claim that the registration of an automobile in the 
 name of the defendant was a mistake letters written by the son with 
 the father's approval before the accident relating to the mistake may be 
 put in evidence to rebut the plaintiff's claim that the story of a mistake 
 was a recent fabrication." 
 
 § 1613. Declarations as evidence of ownership. — A remark of the 
 defendant to a sales agent after some negotiations for the purchase of 
 a car, that as long as he had purchased the car he would like to drive 
 it is admissible as part of the res gestce on the question of the owner- 
 ship of the car when made just before the accident.'^ 
 
 § 1 614. Acts and words after accident. — Evidence as to what the 
 defendant said and did immediately after the accident is admissible as 
 a part of the transaction." 
 
 So evidence that tent pegs and ropes obstructing a portion of the 
 street were moved back after the accident is inadmissible to show that 
 their original location was negligent but may be used to show that after 
 they were moved back the tent was securely held and therefore that it 
 was unnecessary to locate them so far in the street as they were in the 
 first instance." 
 
 'iSegerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876. 
 32Admissions as evidence of ownership, see ante, s. 211. 
 ssBennett v. Busch, 75 N. J. 24, 67 Atl. 188. 
 
 3*Salminen v. Ross, Cir. Ct. D. Mass., 185 Fed. 997, 112 C. C. A. 148. 
 sBLevine v. Ferlisi, 192 Ala. 362, 68 So. 269. 
 36Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406. 
 "Olds Motor Works v. Churchill, Tex. Civ. App. 191S, I7S S. W. 785- 
 ssWalkup V. Beebe, 139 Iowa 395, 116 N. W. 321. 
 '"Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236, 66 S. E. 624. 
 
 1022 
 
ADMISSIONS OR DECLARATIONS § 1615 
 
 The statement of the plaintiff, a boy, on recovering consciousness 
 at a hospital where he was taken after the acident is admissible against 
 him.*» But his statement some two hours after the accident on coming 
 out of the ether after an operation are not admissible in his favor as part 
 of the res gestcB.*^ 
 
 § 161 5. Admission of liability.— The admission of the defendant 
 made right after the accident that he was to blame and would settle is 
 admissible*^ but the evidence cannot be repeated after being given 
 once.*' 
 
 § 1616. Offer of compromise. — An offer of compromise by the 
 defendant cannot be put in evidence and it is error to allow it to be 
 stated in an offer of proof before the jury.** 
 
 It is misconduct for plaintiff's counsel to ask a witness if the defend- 
 ant had talked to him about compromising the case but this may not be 
 ground for reversing the judgment where it appears that the defense 
 has no merit. *^ Even evidence that the defendant had settled with a co- 
 passenger for injuries received in the same accident is incompetent.*" 
 
 § 1617. Offer to care for injured. — It is proper for a witness to 
 state that the defendant said after the accident when he went back 
 to where the child injured was lying, "Put her in and we will carry 
 her to a doctor." The witness cannot state however that he would not 
 have used "quite as careless a manner."*' 
 
 An admission of liability by the defendant may be competent but no 
 liability is admitted by an expression of sympathy, and an offer to be 
 responsible for all debts in the case. This is merely an offer to pay the 
 cost of treatment.*' 
 
 The efforts of an owner of a car to relieve the sufferings of one in- 
 jured thereby cannot be made the basis of legal liability for the acts of 
 a servant not engaged in his master's business at the time.*' 
 
 ^oWestcott V. Waterloo C. F. & N. Ry. Co., Iowa 1916, 155 N. W. 2SS- 
 "Westcott V. Waterloo C. F. & N. Ry. Co., Iowa 1916, 155 N. W. 255. 
 i^Shinkle v. McCullough, 116 Ky. 960, 77 S. W. 196. 
 *3Goodwin V. Holmes, 87 Vt. 447, 89 Atl. 742. 
 **Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527. 
 *5Eisenman v. Griffith, 181 Mo. App. 183, 167 S. W. 1142. 
 *eRoutIedge v. Rambler, Etc., Co., Tex. Civ. App. 1906, 95 S. W. 749- 
 ^^Bowen v. State, 100 Ark. 232, 140 S. W. 28. 
 *8Winter v. Van Blarcom, 258 Mo. 418, 167 S. W. 498. 
 "Scheel V. Shaw, (Pa. 1916), 97 Atl. 685. 
 
 1023 
 
§ i6i8 Evidence 
 
 § 1618. Statement of facts. — A letter written by the defendant to 
 the plaintiif expressing sympathy and speaking of the accident is ad- 
 missible in evidence as the party's statement of the facts.^" 
 
 So a conversation by a party with his companions showing that he 
 was hurrying for a street car and relied on them to look for him are 
 admissible in evidence. °^ 
 
 § 1619. Inconsistencies in testimony. — Discrepancies in the stories 
 of the plaintiflf at different times are proper subjects of comment to the 
 jury.^^ The plaintiff may still recover though the evidence does not sus- 
 tain his claim as to the manner in which the accident happened.^^ 
 
 § 1620. Waiver of objection to evidence. — The admission of evi- 
 dence cannot be objected to on appeal where similar evidence was ad- 
 mitted without objection at the trial." 
 
 III. Competency 
 
 § 1621. "Competent evidence." 
 
 1622. "Relevant" evidence. 
 
 1623. "Material" evidence or "Pertinent" evidence. 
 
 1624. "Satisfactory" or "sufficient" evidence. 
 
 1625. "Cumulative evidence." 
 
 1626. Uncontradicted evidence may be disbelieved. 
 
 1627. Prudence and skill of driver. 
 
 1628. Previous conduct of driver. 
 
 1629. Practice of others. 
 
 1630. Previous convictions. 
 
 1631. Testimony that he did his best and all that could be done. 
 
 1632. Testimony of habits of an animal. 
 
 1633. Wealth of defendant or that he is a lawyer immaterial. 
 
 1634. View of the place by the jury. 
 
 1635. Experiments made out of court. 
 
 1636. Calculations. 
 
 1637. Sound or "noise" as indicating speed. 
 
 1638. Time in estimating speed. 
 
 1639. Distance as basis of speed estimate. 
 
 1640. Point of view. 
 
 E»0'Neil V. Redfield, 158 Iowa 246, 139 N. W. SSS- 
 siBelleveau v. Lowe Supply Co., 200 Mass. 237, 86 N. E. 30i- 
 52Scott V. Dow, 162 Mich, 636, 127 N. W. 712. 
 
 s^Kling V. Thompson, McDonald Lumber Co., 127 Minn. 468, 149 N. W. 947. 8 
 N. C. C. A. 586. 
 5*McCown V. Muldrow, 91 S. C. 523, 74 S. E. 386 ; Ann. Cas. 1914 A, 139. 
 
 1024 
 
COMPETENCY § 1621 
 
 1641. Testimony of operator. 
 
 1642. Condition of highway in another place. 
 
 1643. Stop-watch or mechanical device. 
 
 1644. Speedometer. 
 
 § 1621. "Competent evidence" is that which possesses the charac- 
 teristics already described, and is "fit and appropriate in its nature as a 
 means of proof."^' Nothing in the trial of causes is more fruitful of 
 argument and contention than questions relating to the "competency" 
 of evidence proffered by the one party or the other, and no question is 
 more frequently presented for review in the appellate courts than that 
 concerning the admission or rejection of evidence in the trial court on 
 the ground of competency. In all cases the "competency" of evidence is 
 a question of law for the court. The same matter may be competent 
 for one purpose and wholly incompetent for another purpose. 
 
 § 1622. "Relevant" evidence. — Any proof to be of value must re- 
 late to or connect with the points averred or at issue. Carefully defined 
 the word means any two facts which are "so related to each other that, 
 according to the common course of events, one either taken by itself 
 or in connection with other facts, proves or renders probable the 
 * * * existence or non-existence of the other.""" But such evidence 
 "must be significant in character and sufficienctly near in point of time 
 to have a tendency to 'lead the guarded discretion of a reasonable and 
 just man' to a belief in the existence of this important element in the 
 fact to be proved. If too remote or insignificant, it will be rejected."" 
 The admission or rejection of evidence on the ground of relevancy, is 
 within the "discretion of the judge who tries the case.""' 
 
 § 1623. "Material" evidence or "pertinent" evidence. — These two 
 terms are sometimes used as synonymous with "relevant" evidence. 
 There is, however, this distinction, that a "material" fact is one of sub- 
 stantial importance which, generally speaking, relates to the cattse of 
 action and is capable of properly influencing the result of the trial, 
 while relevant or pertinent evidence generally is proof tending to prove 
 
 o^Stephen's Dig. Law of Ev. (Chase, 2d ed.), 4; I Greenleaf on Evidence, 
 sec. 2 (15th ed.). 
 
 seStephen's Dig. Law of Ev. (Chase, 2d ed.), 5; Trout Brook Co. v. Hartford 
 El. Light Co., 77 Conn. 338, 59 Atl. 405. 
 
 s^Com. V. Abbott, 130 Mass. 474. 
 
 68Com. V. Abbott, 130 Mass. 474. 
 
 1025 
 
 65 
 
§ 1624 EVIDENCE 
 
 or disprove the truth of the material facts out of which grows the cause 
 of action. Sometimes the "material" facts are only such facts as are 
 necessary to the pleadings, and are to be supported by relevant and com- 
 petent evidence in order to maintain the issue.'' 
 
 In Garfield v. Hartford, Etc., Ry. Co..^" Chief Justice Baldwin says : 
 
 "A fact may be material to support a cause of action and yet 
 its establishment may not be essential to a recovery." 
 
 § 1624. "Satisfactory" or "sufficient" evidence is that amount or 
 weight of evidence which is adapted to convince a reasonable man, 
 "and to so convince him that he would venture to act upon that con- 
 viction in matters of the highest concern and importance to his own in- 
 terest.""^ The question as to the sufficiency or "weight" of the evidence 
 is for the jury or the trial judge in the absence of a jury.°^ "When the 
 testimony is conflicting, the jury should endeavor to reconcile it so that 
 the whole may be harmonious. If this cannot be done, then it becomes 
 the duty of the jury to estimate and weigh in their minds the value of 
 the testimony on the respective sides, and give their verdict to that side 
 on which the testimony is of the greatest weight" * * * "and most 
 worthy of credit. In estimating such weight the jury are to consider 
 the witnesses' means of knowledge of the facts about which they speak, 
 their intelligence, apparent truthfulness and fairness, and any other facts 
 or circumstances shown by the evidence with respect to the witnesses 
 that show the reliability of their statements."" 
 
 All these elements enter into what is usually spoken of as the "credi- 
 bility" of the testimony or witness, that is, its or his worthiness of be- 
 lief."* 
 
 § 1625. "Cumulative evidence" is evidence of the same kind to the 
 same point. Illustratively : the testimony of two or more witnesses to 
 
 "isphipson's Evidence, 4th ed., p. 4°. i Wigmore on Evidence, sec. 2; Bour- 
 vier's Law Diect. (Rawles). 
 
 «»8o Conn. 260, 67 Atl. 890. 
 
 «ii Greenleaf on Evidence, sec. 2 (isth ed.) ; Stephen's Dig. Law of Ev. 
 (Chase, 2 ed.), p. 4- 
 
 B^Stephen's Dig. Law of Ev. (Chase, 2 ed.), p. 4. 
 
 s^Mr Justice Pennewill in Simeone v. Lindsay, 65 Atl. Repr. 778, 6 Pen. (Del.) 
 224. 
 
 e*2 Words & Phrases Jud. Del, 1709- 
 
 1026 
 
COMPETENCY § 1626 
 
 the same state of facts.«= It is sometimes used with the same meaning 
 as "corroborative evidence."'" 
 
 § 1626. Uncontradicted evidence may be disbelieved.— Although 
 there is no evidence directly contradicting the account of an accident 
 given by a witness, the jury or trial court have a right to disbelieve the 
 testimony in toto.^'' 
 
 § 1627. Prudence and skill of driver. — It is as a general rule irrele- 
 vant to show that the driver charged with a particular act of negligence 
 is in general a careful, prudent man. 
 
 Tenney v. Tuttle,*^ was a case where the issue turned on a single act 
 of negligence in leaving horses standing unhitched and no one in charge. 
 It was sought to show that the defendant was a careful and prudent 
 man. Mr. Justice Metcalf says : 
 
 "And the court are of the opinion that evidence of the defend- 
 ant's being a careful, prudent and cautious man was not admis- 
 sible for the purpose of showing that he used, in this instance, 
 such care of his horses as the law requires in order to exempt 
 him from responsibility. * * * When the precise act or 
 omission of a defendant is proved, the question whether it is 
 actionable negligence is to be decided by the character of the act 
 or omission, and not by the character for care and caution that 
 the defendant may sustain. If such evidence * * * jg gygr 
 admissible in a case like this, we incline to the opinion that it is 
 only when the plaintiff attempts to prove the defendant's negli- 
 gence by merely circumstantial evidence, or, perhaps, by wit- 
 nesses shown to be of doubtful veracity.""' 
 
 In State v. Goetz,™ the defendant sought to show his character and 
 reputation as a careful driver. The questions were excluded, but "the 
 general good character, reputation, and habits of the accused," were 
 permitted to be shown. Upon appeal the Supreme Court sustained both 
 
 *5i Greenleaf on Evidence, sec. 2, (15th ed.). 
 
 8«Stephen's Dig. Law of Ev., 4 note (Chase, 2 ed.). 
 
 6'Lindenbaum v. New York, Etc., R., 197 Mass. 323, 84 N. E. 129; Hartje v. 
 Moxley, 23S HI- 164, 85 N. E. 216. 
 
 »883 Mass. 18s. 
 
 s'See Lizotte v. New York Cent., Etc., R., 196 Mass. 523, 83 N. E. 362; Ma- 
 guire V. Middlesex R., 115 Mass. 239; Pantages v. Seattle Electric Co., SS Wash. 
 453, 104 Pac. Repr. 629. 
 
 7076 Atl. Repr. lopo, 83 Conn. 437- 
 
 1027 
 
§ 1628 BviDENce 
 
 rulings. In Commonwealth v. Cook/^ Mr. Justice Dreher charged the 
 jury as follows: 
 
 "The defendant has proven by a number of witnesses that his 
 reputation as a careful, competent, prudent engineer is good. 
 * * * His character is an item of evidence which you are to 
 consider with all the other evidence. It has been held, by the 
 supreme court, that good character may, of itself raise a' reason- 
 able doubt, but where the evidence clearly and satisfactorily 
 proves the defendant's guilt, his good character will not avail." 
 
 Where the defendant has put in evidence that the driver was a care- 
 ful and competent driver and that he had never been careless before it 
 is proper for the plaintiff in rebuttal to show that on two occasions he 
 had on meeting others failed and refused to give them any part of the 
 road.''^ 
 
 A witness may not ordinarily testify that the plaintiff is skilful in 
 handling an automobile.''^ There is no error shown in permitting a 
 witness who has ridden in an automobile fifty times to testify that a boy 
 charged with being a careless driver is careful and able to handle an 
 automobile although the witness is not himself an expert operator.'* 
 
 § 1628. Previous conduct of driver. — It is generally inadmissible 
 to show previous omissions of duty, in a case where an injury at a par- 
 ticular time and place from a particular act or omission, is charged.''^ 
 But where the plaintiff contends that the driver of an underslung 
 automobile sits so low that he cannot see the road ahead of him properly 
 it is proper to show that on two previous occasions he has failed to turn 
 out on meeting another.''* 
 
 T18 Pa. Co. Ct. Reps. 486, 490. 
 
 "Allen V. Bland, Tex. Civ. App. 1914, 168 S. 'W. 35, 8 N. C. C. A. 299. 
 
 TsWiar V. 'Wabash R. Co., 162 Iowa 702, 144 N. W. 703. 
 
 7*Rjley V. Fisher, Tex. Civ. App. 1912, 146 S. 'W. 581. 
 
 ^^Collins V. Dorchester, 55 Mass. 398; Aldrich v. Pelham, 67 Mass. Sio; 
 Robinson v. Fitchburg, Etc., R., 73 Mass. 92; Kidder v. Dunstable, 77 Mass. 
 344; Schoonmaker v. Wilbraham, no Mass. 134; Maguire v. Middlesex R., 
 IIS Mass. 239; Parker v. Porter Pub. Co., 69 Maine 174; Branch v. Libbey, 78 
 Maine 322; Bremner v. Newcastle, 83 Maine 41S; See v. 'Wormser, 129 N. Y. 
 App. Div. S96, 113 N. Y. S. 1093. 
 
 78Allen V. Bland, Tex. Civ. App. 1914, 168 S. W. 35, 8 N. C. C. A. 299. 
 
 1028 
 
COMPETENCY § 1629 
 
 § 1629. Practice of others.— In Hill v. Winsor," it is said con- 
 cerning an attempt made by the defendants to excuse themselves on the 
 ground that they did only that which was commonly done by others : 
 
 "It is enough to say that there is no rule of law which ex- 
 empts one from the consequences of his negligent conduct upon 
 proof that he proceeded in the usual manner and took the usual 
 course pursued by parties similarly situated, although he was 
 without notice that he could not safely do so. The defendants 
 cannot safely protect themselves by proving the careless prac- 
 tices of others.'"^ ■> f b f 
 
 § 1630. Previous convictions.— In See v. Wormser,'» the court 
 held that : 
 
 "To bring out previous convictions for overspeeding was not 
 competent to_ determine the question of defendant's negligence 
 on this occasion. It might have been competent if the question 
 of speed had been litigated on the trial as causing the collision, 
 but there was no evidence or claim that the defendant was going 
 at a faster rate of speed than was provided by law. Evidence 
 of previous convictions was not competent to prove defendant's 
 'bad character.' The commission of a crime is generally evidence 
 affecting one's moral character, although some crimes may be 
 too trivial for the purpose." 
 
 Where the defendant testifies that he has been acquitted of crime in 
 the police court he can be asked on cross-examination of what crime he 
 was there charged.'" 
 
 Where a record of conviction for running an automobile under the 
 influence of liquor is introduced in evidence against defendant's chauf- 
 feur bald identity of name is not enough to connect the chauffeur with 
 the record. But where the person convicted was described as of the 
 city where the chauffeur apparently resided and the offence was com- 
 mitted and the conviction was had near a garage where the automobile 
 was kept these circumstances together with identity of name were 
 
 ^^118 Mass. 259. 
 
 ^*See also Miller v. Pendleton, 74 Mass. 548; Codman v. Evans, 87 Mass. 310; 
 Cass V. Boston & L. R-, 96 Mass. 450; Lewis v. Smith, 107 Mass. 338; Bailey v. 
 New Haven & N. Co., 107 Mass. 497; Lane v. Boston & A. Ry., 112 Mass. 455. 
 
 T9i2g N. Y. App. Div. 596, 113 N. Y. S. 1093. 
 
 '"Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876. 
 
 1029 
 
§ 1631 EVIDENCE 
 
 enough to warrant an inference that the court record applied to the 
 defendant's servant.'^ 
 
 § 1631. Testimony that he did his best and all that could be done 
 to avoid the accident is properly excluded as being only an expression 
 of opinion concerning a matter within the province of the jury to de- 
 termine.*^ 
 
 § 1632. Testimony of habits of an animal.*^ — In Maggi v. Cutts,** 
 the court held that it was competent to prove the misbehavior of a 
 horse on occasions preceding that at issue, and also subsequently thereto ; 
 the purpose being to show that such misbehavior was a habit, or oc- 
 casioned by viciousness; but the occurrence of such similar acts must 
 not be too remote. It largely depends upon the discretion of the presid- 
 ing judge as to whether the events showing the habit of the animal, are 
 sufificiently proximate to have weight with the jury.*' 
 
 § 1633. Wealth of defendant or that he is a lawyer immaterial. — 
 It is error to allow the plaintiff to inquire as to the wealth of the de- 
 fendant as this is not in issue and this error is not cured by examination 
 by the defendant explaining his statements on the plaintiff's examin- 
 ation.*' 
 
 It is not proper to show that the defendant is a lawyer as he is no 
 more charged with knowledge of the law than anyone else.*^ 
 
 § 1634. View of the place by the jury. — ^The practice is common 
 of allowing a view by the jury of the place or thing involved in an ac- 
 cident. For obvious reasons the view "should be authorized by the 
 court and under its direction." Unauthorized views by jurors are im- 
 proper.** Views by the jury are authorized by statute in Massachu- 
 setts.*' So a view may be taken of the damaged automobile."" 
 
 "Ayers v. Ratshesky, 213 Mass. 589, loi N. E. 78, 7 N. C. C. A. 125. 
 s^State V. Campbell, 82 Conn. 671, 74 Atl. Rcpr. 927 (Conn.). 
 83See §§ 1150, iiSi. 
 
 8*123 Mass. 535. o i.t w 
 
 ssTodd V. Rowley, 90 Mass. 58; Johnstone v. Tuttle, 196 Mass. 113, 81 N. E. 
 
 886; Lynch v. Kineth, 36 Wash. 368, 78 Pac. 923; Fletcher v. Dixon, 107 Md. 
 
 420, 68 Atl. 87s, 881. 
 s'Story V. Green, 164 Cal. 768, 130 Pac. 870. As to financial situation of parties 
 
 see further post § 1731, 1768. 
 
 s^Story V. Green, 164 Cal. 768, 130 Pac. 870. 
 
 ssjones on Evidence, Sec. 407; People v. Cahill, 11 Cal. App. 685, 106 Pac. iig. 
 
 8i>Rev. Laws, Chap. 196, Sec. 35- See also Campbell v. Dreher, no S. W. 
 Repr. 353 (Ky. 1908). 
 
 ooCampbell v. Dreher, Ky. 1908, no S. W. 353. 
 
 1030 
 
COMPETENCY § 163s 
 
 § 1635. Experiments made out of court should not be admitted 
 "unless the testimony shows that they were made under such conditions 
 as to fairly illustrate the point in issue ; and from the nature of the case, 
 -the decision of this question must rest largely in the discretion of the 
 trial judge."»i 
 
 In an action to recover on account of a defect in the road — a gully — 
 evidence of another driver as to his difficulty in noticing the defect on 
 the previous night under similar conditions is competent, although the 
 witness had electric lights on his car and plaintiff used gas headlights 
 and it had snowed since witness went over the road."^ 
 
 The court may exclude evidence of experiments in the stopping of 
 an automobile at the place of the accident on account of difference in the 
 conditions and such exclusion is not subject to exception as it is within 
 the discretion of the court."^ 
 
 Where the street is wet and the automobile skids on application of 
 the brakes it may be shown by an expert driver as the result of experi- 
 ments that an automobile of that kind running at twenty-five miles an 
 hour at a similar place will skid 100 feet with the brakes set, where this 
 is the distance the defendant skidded.'* 
 
 A witness cannot be asked the effect from his experience of a large 
 arc light in the" highway in dazzling the eyes of the operator of an auto- 
 mobile unless it is also shown that the conditions when the witness ob- 
 served them were the same as those on the night of the accident, includ- 
 ing the degree of darkness, that the arc light was of the same power on 
 the different nights and that the lights on the automobile were substan- 
 tially the same as those on the plaintiff's automobile.'^ 
 
 Evidence that another automobilist going over the same road at night 
 did not see a stationary freight car at the crossing where the plaintiff 
 ran into one is no evidence to prove the plaintiff's due care.°° 
 
 'ijones on Evidence, 2 ed., Sec 410; Dow v. Bullfinch, 192 Mass. 285, 78 N. 
 E. 416; Omaha St. Ry. v. Larson, 70 Neb. 59s, 97 N. W. 824; Com. v. Buxton, 
 205 Mass. 49, 91 N. E. 128. 
 
 '^Lawrence v. Sioux City, Iowa 1916, 154 N. W. 494. 
 
 93Beckley v. Alexander, 77 N. H. 255, 90 Atl. 878. 
 
 9*Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892, 4 N. C. C. A. 10. 
 
 s^Trask v. Boston & Maine R. R., 219 Mass. 410, 106 N. E. 1022, 8 N. C. C. 
 A. 1044. 
 
 »6parmer v. New York, New Haven & Hartford R., 217 Mass. 158, 104 N. E. 
 
 49a. 
 
 103 1 
 
§ 1636 EVIDENCE 
 
 § 1636. A calculation made after the event as a matter of arithme- 
 tic or otherwise and not from any personal observations at the time, 
 concerning the speed of the vehicle, has been denied admission. The 
 ground of rejection was that the circumstances not caUing for the 
 opinion of an expert, the witness's conclusion was immaterial, the jury 
 being able to make the calculation as well as the witness and to draw 
 their own conclusion." Mathematical calculations as to the speed of a 
 train based on mere estimates by the engineer furnished only a scintilla 
 of evidence when opposed to other positive evidence of speed."* 
 
 Evidence of observations and measurements taken at the place of the 
 accident is not material where it is not denied that the occupants of the 
 automobile did not discover the standing team with which they collided 
 until they were almost upon it.°° 
 
 § 1637. Sound or "noise" as indicating speed.^"" — ^Training, study 
 and experience make men proficient in a remarkable degree to sounds 
 to which they are accustomed. In the absence of some such qualifica- 
 tions, the witness is hardly able to give more than a "vague guess." It 
 is for the court to pass upon the qualification of the witness preliminarily 
 to his testifying. If the witness cannot show something to lift his testi- 
 mony out of the realm of mere conjecture, the court may in its discre- 
 tion rule out the evidence as unworthy to sutsain a verdict.^ 
 
 But it is perhaps the safer rule to admit the evidence as competent, 
 and leave its weight and value to the jury.^ 
 
 In Van Horn v. B. C. R. & N. Ry. Co.,^ it is said, concerning the ad- 
 mission of certain testimony introduced to prove the rate of speed of a 
 moving railroad train : 
 
 "Small differences in the speed of moving trains cannot prob- 
 ably be determined by the sound, but we think that the difference 
 
 9'Mathieson v. Omaha St. R., 97 N. W. 243, 3 Neb. (unofficial) 747. 
 
 ssChase v. New York Central R. Co., 208 Mass. 137, 94 N. E. 377- 
 
 99Wade V. Brents, 161 Ky. 607, 171 S. W. 188. 
 
 """See § 1 126, 1699. 
 
 iCampbell v. St. Louis, Etc., Ry., i7S Mo. 177, 99 S. W. 58; Hoppe v. Chicago, 
 Etc., Ry., 61 Wis. 36s, 21 N. W. 227; Moore on Pacts, Sec. 190 et seq., Sec. 220; 
 Eichman v. Buchheit, 128 Wis. 383, 107 N. W. 325 ; House v. Cramer, 134 Iowa 
 374, 112 N. W. 3; Fletcher v. Dixon, 107 Md. 420, 68 Atl. 87s ; O'Donnell v. 
 O'Neil, 130 Mo. App. 360, 109 S. W. Repr. 81S (Mo.). 
 
 zRobinson v. Louisville R. Co., 112 Fed. Repr. (Ky.), 487. 
 
 »S9 Iowa 33, 12 N. W. 752- 
 
 1032 
 
COMPETENCY § 1638 
 
 between the speed of a slowly moving and of a rapidly moving 
 train, could be distinguished quite easily from the sound by a 
 person in the immediate vicinity. The evidence we think was 
 not inadmissible. Such evidence, we think could not, under all 
 the circumstances, be deemed wholly unreliable. What weight 
 the evidence in question was entitled to, under the circumstances 
 shown, it was for the jury to determine."* 
 
 The direction of the wind is a factor to be regarded, so also other 
 noises and as well, the effect of intervening objects.' 
 
 In the case of motor vehicles, an automobile particularly, the noise 
 made by the machinery in motion is of little value in determining speed. 
 Some automobiles are almost completely silent at high speeds and not 
 at all noisy at any time. From this as one extreme, they vary widely, 
 some being noisy at all speeds. Besides much depends on the condition 
 of the machinery whether it is in good or bad order, old or new. If 
 any rule were to be ventured, it would be that (on the general principles 
 of the usual construction of such vehicles), the more noise they make 
 under ordinary conditions on the roadway, the slower they are proceed- 
 ing. It is a matter of common observation that an automobile at a 
 standstill, with its engine going, will emit more apparent noise than 
 when in motion at any speed. 
 
 In Porter v. Buckley,^ the testimony of a witness as to the noise 
 made by a Winton car in comparison with that of other machines, as a 
 factor in determining speed, was excluded, because "there was no 
 proof of the condition of the machines with which the comparisons 
 were made." 
 
 In New York Transp. Co. v. Garside,' it is said : "But whether the 
 speed of the vehicle was too great as charged, might depend among 
 other things, upon whether it was proceeding noiselessly." 
 
 § 1638. Time in estimating speed.— "When a witness speaks of 
 minutes in recalling periods of time not actually measured by a time- 
 piece, it is necessarily uncertain. The seeming length of the interval de- 
 pends on the mood of the witness at the time."* 
 
 *See also Mo. Pac. Ry. Co. v.Hildebrand, 52 Kas. 289, 34 Pac. 738. 
 
 ^Huntress v. Railroad, 66 N. H. 187, 34 A. IS4. 
 
 «I47 Fed. Repr. 140, 142, 78 C. C. A. 138. 
 
 7157 Fed. Repr. 521, 524, 85 C. C. A. 285. 
 
 sRidge V. Pennsylvania R. Co., 58 N. J. Eq. 172, 43 Atl. Repr. 277. 
 
 1033 
 
§ 1639 EVIDENCE 
 
 In Bailey v. Eastern Railroad, » the witness was allowed to answer 
 that the railroad's gateman "had rather a short time" in which to close 
 the gates before the train passed. In overruling the objection, it is 
 said by Mr. Justice Soule: 
 
 "The purpose and effect were to get at the opinion of the 
 witness as to the time which elapsed after the gate-keeper 
 started from the gate-house, before the train passed the gate- 
 house. * * * All statements as to the lapse of time between 
 two occurrences are opinions merely, unless the person inquired 
 or measured it by a timepiece. * * * it is the judgment of 
 one who had the means of observation, but took no special steps 
 to preserve an accurate recollection. The judgment is quite 
 as likely to be correct when the length of time is stated as 
 being as long as it would take to walk a given distance, as when 
 it is stated in minutes or seconds."^" 
 
 § 1639. Distance as basis of speed estimate. — "Direct evidence as 
 to distance not established by actual measurement, is a matter of opin- 
 ion based upon opportunity and capacity for observation and accuracy of 
 observation." "Estimates of distance, especially by witnesses unac- 
 customed to measure distances exactly, are more likely to be incorrect 
 than their general statement that an event took place in a second or a 
 fraction of a second."^^ 
 
 § 1640. Point of view. — The direction from which the observer 
 sees the moving object is of consequence, thus if it be coming directly 
 towards or departing from him, it is more difficult and uncertain to esti- 
 mate its speed than when crossing his line of vision.^^ Intervening ob- 
 jects are also a matter for consideration in such cases.^* 
 
 § 1641. Testimony of operator. — By analogy with the position oc- 
 cupied by a locomotive engineer, the operator of a motor vehicle is the 
 person "in the best position to judge in regard to the speed" of such 
 
 »i2S Mass. 65. 
 
 iJ-'McFern v. Gardner, 121 Mo. App. i, 7. 97 S. W. p72. 
 
 "Moore on Facts, Sec. 397 ; Wright v. Crane, 142 Mich. 508, 106 N. W. Repr, 
 
 71. 
 
 i^Colorado M. Ry. v. Robbins, 30 Colo. 449, 71 Pac. Repr. 373; Muster v. 
 Chicago, Etc., R., 61 Wis. 325, 21 N. W. 223 ; i Moore on Facts, Sec. 425 ; Needy 
 V. Littlejohn, 137 Iowa 704, 115 N. W. 483. 
 
 "Huntress v. Railroad, 66 N. H. 187, 34 Atl. 154. 
 
 1034 
 
COMPETENCY § 1642 
 
 vehicle. The credibiHty of the witness and the weight to be given to his 
 testimon)' is to be determined from all the circumstances." 
 
 But when such testimony is in exculpation of himself, it is to be 
 viewed with caution." 
 
 § 1642. Condition of Highway in another place. — Evidence of the 
 condition of the highway three hundred feet away from the place where 
 the accident occurred is objectionable as being too remote." 
 
 § 1643. Stop-watch or mechanical device." — If the speed was 
 timed 0¥er a known or measured distance by a clock or timepiece, or by 
 a "stop-watch" or other mechanical device in the possession of a person 
 skilled in managing it, such evidence would naturally preponderate over 
 that of a witness or a number of witnesses, who spoke from impression 
 only.^' 
 
 In England, the Motor Car Act of 1903, provides that no person may 
 be convicted of overspeeding "merely on the opinion of one witness as 
 to the rate of speed." This has been held not to apply to a case where 
 the witness used a stop-watch in timing the passage of a vehicle between 
 two fixed points. In Plancq v. Marks," the witness was a police officer 
 who testified that he used a stop-watch in testing the speed of a car. No 
 other witness was called upon the point of speed. The defendant con- 
 tended that on this testimony alone, under the act referred to, conviction 
 could not be had. On the appeal. Lord Alverstone, C. J., held that the 
 evidence of a stop-watch testified to by a policeman, was not opinion, 
 but that it was evidence of fact. 
 
 The records of a photo-speed recorder, a mechanical device for de- 
 termining speed of automobiles are admissible as depending on "the 
 immutable working of natural laws and likely to be more reliable than 
 
 "Bowes V. Hopkins, 84 Fed. Repr. 769 (HI.) ; Moore on Facts, Sees. 441, 442, 
 446; Christy v. Elliott, 216 111, 49, 74 N. E. 1035; McCarragher v. Proal, 114 N. 
 Y. App. Div. 470, 474, 100 N. Y. S. 208. 
 
 1=1 Moore on Facts, 471. 
 
 "Strand v. Grinnell Automobile Co., 136 Iowa 68, 113 N. W. 488. 
 
 "Set § 481A, Police traps. 
 
 "Bailey v. Eastern Railroad, 125 Mass. 6s; Detroit & M. R. v. Van Steinburg, 
 17 Mich. 104; Ridge V. Pennsylvania R. Co., 58 N. J.'Eq. 172, 43 Atl. Repr. 277. 
 Com. V. Buxton, 205 Mass. 49, Pi N. E. 128. 
 
 1994 Law Times Reps., N. S. 577- 
 
 103s 
 
§ 1644 EVIDENCE 
 
 the conjectural statement of an eye-witness or the interested statement 
 of a chauffeur/'^" 
 
 § 1644. Speedometer. — The best quality of evidence could be fur- 
 nished undoubtedly, by a speed indicator or "speedometer," a me- 
 chanical device for registering the speed of motor vehicles, because it 
 is wholly free from individual idiosyncracies. A watch and even a 
 stop-watch, involves the exercise of judgment and personal action de- 
 pendent for its value upon quickness of perception, experience and 
 skill in managing it, while a "speedometer" or indicator is entirely 
 automatic. Before the evidence supplied by such a device is received, 
 it is proper to introduce proof that in its design, construction and opera- 
 tion, it is accurate.^^ 
 
 IV. Weight and SuPMcieNCY 
 
 § 164s. In general. 
 
 1646. "Prima facie evidence.'' 
 
 1647. A "prima facie case." 
 
 1648. Prima facie case and proximate cause. 
 
 1649. In criminal cases. 
 
 1650. Connecting the defendant with the crime. 
 
 1651. That street is public highway. 
 
 § 1645. In general. — It is proper for the court to charge that the 
 weight of evidence is not determined by the number of witnesses.^^ 
 Negligence is not presumed but the plaintiflf can recover only by a 
 preponderance of evidence.^^ 
 
 § 1646. "Prima facie evidence,"^* is such evidence as in judgment 
 of law is sufficient to establish the fact, and if not rebutted, remains 
 sufficient for the purpose."^' 
 
 § 1647. A "prima facie case," is a state of facts proven in the same 
 degree as stated concerning a single fact, and sufficient to sustain the 
 
 20Com. V. Buxton, 205 Mass. 49, 91 N. E. 128. 
 
 2iSee Moore on Facts, Sec. 480, and Com. v. Buxton, 205 Mass. 49, 91 N. E. 128. 
 221>unbar v. Jones, 87 Conn. 253, 87 Atl. 787- 
 23Hannigan v. Wright, 5 Penne. (Del.) 537, 63 Atl. 234. 
 2iAs used in Sec. 16, Chap. 534, Mass. Acts of 1909. 
 
 "Lilienthal, Etc., v. United States, 97 U. S. 268; Emmons v. Westfield Bank, 
 97 Mass. 243 ; Miller v. N. Y. Taxicab Co., 120 N. Y. Supp. 899, App. Term 1910. 
 
 1036 
 
WEIGHT AND SUFFICIENCY § 1647 
 
 verdict of a jury or judgment of a trial court, if not rebutted by the 
 other party.^" 
 
 A prima facie case of negligence may be shown on evidence that the 
 driver of a motor vehicle was traveling at a dangerous rate of speed at 
 night without lights or horn and turned to the left," or where an auto- 
 mobile going rapidly without signal runs over a child,=^ or where a 
 pedestrian looks before crossing a street and sees no automobile.^' 
 
 In some states by statute certain facts are made prima facie evidence 
 of guilt in handling motor vehicles. For example^" when a motorist is 
 prosecuted for running his vehicle inside the "thickly settled" part of a 
 city or town at a speed greater than reasonable and proper, under Sec. 
 16, Chap. 534, Mass., Act of 1909, all that the Commonwealth would 
 be called upon to prove, would be that the rate of the defendant's speed 
 for the distance of one-eighth of a mile was in excess of fifteen miles 
 an hour, ^nd that the place fell within the definition of the "thickly 
 settled" part of a town.'^ Under the statute a prima facie case against 
 the defendant would be made out sufficient to sustain a verdict of 
 guilty, unless such defendant could satisfy the tribunal that his speed 
 was no greater than was reasonable and proper, having regard to traffic, 
 the use of the way and the safety of the public. 
 
 The constitutionality of the provision of statute referred to in the 
 previous sections was questioned in Illinois, where the statute is not 
 imlike that of Massachusetts.'^ The ground of the objection was that, 
 applying only to motor vehicles, it discriminated against them and was 
 therefore, "special" or "class" legislation. The court overruled the ob- 
 jection on the ground that these vehicles formed a class by themselves 
 and that the provision bore uniformly upon the whole class.'* 
 
 The court may inform the jury whether or not the facts as stated in 
 the evidence before them, are sufficient in the law to sustain a verdict, 
 if they find such facts to be true.'* 
 
 2»6 Words & Phrases Jud. Del, 5549- 
 
 2TMcFern v. Gardner, 121 Mo. App. 7, 97 S. W. 972. 
 
 28Dultz V. Fischlowitz, 104 N. Y. Suppl. 357 App. Term, 1907. 
 
 z'Miller v. New York Taxicab Co., 120 N. Y. Supp. 899, App. Term 1910. 
 
 '"See § 435. 
 
 3iCom. V. Sherman, 191 Mass. 439, 440, 78 N. E. 98; Ward v. Meredith, 220 IlL 
 
 66, 77 N. E. 118. 
 32Hartie v. Moxley, 235 111. 164, 8s N. E. 216. 
 3'See § 44, Class legislation. 
 3«McIntyre v. Omer, 166 Ind. 57, 76 N. E. 750, 4 L- R- A- N. S. 1130. 
 
 1037 
 
§ 1648 EVIDENCE 
 
 § 1648. Prima facie case and proximate cause. — In a civil action 
 for injuries sustained, while proof of the overspeeding is sufiScient to 
 make a prima facie case of negligence on the part of the defendant, 
 nevertheless, the burden is on the plaintiff to show that such negligence 
 was the proximate cause of the injury, and that he (the plaintiff) was 
 not guilty of contributory negligence, and this burden at all times re- 
 mains with him.'" 
 
 § 1649. In criminal cases, the proof to convict the defendant must, 
 because of the very serious results possibly entailed involving liberty 
 and possibly disgrace, be such as to satisfy the mind and conscience 
 "beyond any reasonable doubt" of the guilt of the accused. In civil 
 cases, because the mischief of an erroneous conclusion is regarded as 
 less severe, the weight of evidence need only preponderate to the ex- 
 tent of "the reasonable probability of truth."'" 
 
 § 1650. Connecting the defendant with the crime. — It is a funda- 
 mental principle of evidence that in order to convict there must be 
 proof clearly connecting the defendant"^with the commission of the 
 crime. If there be room for reasonable doubt, a verdict of guilty can- 
 not be rendered. Thus, in Commonwealth v. Bacon'' the record of the 
 justice showed that "automobile No. 15775" was driven on the public 
 road at an excessive speed. No evidence was introduced to show that 
 the defendant was the owner of the automobile or was in it at the time 
 of the commission of the offense. Mr. Justice Weand, in deciding the 
 case, held that: 
 
 If the defendant owned the car, "and it was used without 
 his knowledge, order or consent, he would not be liable ; other- 
 wise he could be sent to jail for an act done without his knowl- 
 edge by persons for whose acts he would not be responsible." 
 To sustain the conviction there must be evidence that the defend- 
 ant was the owner and occupant of the vehicle at the time alleged, 
 or at least that it was being used for his purposes and by his 
 consent. 
 
 Where there is no evidence whatever as to whether an auto truck 
 or either of two wagons drawn by horses ran over the plaintiff's in- 
 
 88Hartj« V. Moxley, 23S HI- 164, 167, 85 N. E. 216. 
 
 >8i Greenleaf on Evidence, Sec. 13 (isth ed.) ; Com. v. McKie, 67 Mass. 62; 
 Thies V. Thomas, 77 N. Y. Supp. 276, igo2. 
 s'24 Mont. Co. (Pa.) L. Reps. 197. 
 
 1038 
 
PRESUMPTIONS AND BURDEN OE PROOF § 1651 
 
 testate, a little boy, the jury may find from the severe nature of the in- 
 juries that it was done by the auto triick. The jury may also have 
 thought it was unlikely that horses would run over a child instead of 
 avoiding him.^' 
 
 Evidence is sufficient to identify the automobile which caused the 
 accident that it was decorated with bunting and was large where it 
 appears that the defendant was using a large decorated automobile at 
 the time of the accident in that immediate vicinity especially where 
 the automobile drove by at high speed frightening plaintiff's horse.'' 
 
 § 165 1. That street is public highway. — An allegation that the 
 place of an accident is a public highway is sufficiently proved by show- 
 ing that the street is one used generally by the public for travel. It is 
 not necessary to show that the public authorities actually accepted 
 control of the street where suit is not against the city.*" 
 
 V. Presumptions and Burden of Proof 
 
 § 1652. The "Burden of Proof." 
 
 1653. "Presumptions." 
 
 1654. In a criminal case. 
 
 1655. Presumption of unchanged speed.^i 
 
 § 1652. The "burden of proof" often spoken of as onus prohandi, 
 is a rule which governs in the production of evidence, under which "the 
 obligation of proving any fact lies upon the party who substantially 
 asserts the affirmative of the issue."*^ In criminal cases the burden 
 rests upon the Commonwealth, because the state affirms that the accused 
 is guilty. In civil actions between individuals, in tort and the like, the 
 burden lies with the plaintiflF because he alleges the facts affirmatively^ 
 and attempts to fasten responsibility thereunder, upon the defendant " 
 In both classes of proceedings it is generally deemed sufficient for the 
 defendant to oppose with a bare denial, or "not guilty," at least until a 
 prima facie case is made against him." When the affirmative has made 
 
 ssNoltmier v. Rosenberger, 131 Minn. 369, iS5 N. W. 618. 
 
 asBowling v. Roberts, 235 Penn. 89, 893 Atl. 600. 
 
 40Colebank v. Standard Garage Co., 75 W. Va. 389, 84 S. E. 1051. 
 
 *iBurden of proof, see further ante. § 971-974. 
 
 *2i Greenleaf on Evidence, Sec 74 (iSth ed.). 
 
 «Thies V. Thomas, 77 N. Y. Supp. 276, 277; Simeone v. Lindsay, 65 Atl. Repr. 
 
 ^^^^DoheS't^ Ayer, i97 Mass. 241, 248, 83 N. E. 677, 12S Am. St. 355. 
 
 1039 
 
§ i653 BviDENce 
 
 out a prima facie case the obligation of explaining it away falls upon 
 the defendant. The party bearing the burden of proof is usually at 
 disadvantage, and finds relief when the necessity of introducing evi- 
 dence is shifted to his adversary. The burden of proof of the main 
 issue, however, at no time shifts. In Broult v. Hanson,*= the court, by 
 Mr. Justice Knowlton, in a road accident case, say : 
 
 "It has often been decided that in a case of this kind, the 
 burden of proof remains on the plaintiff, as well after as before 
 the introduction of prima facie evidence of negligence. A prima 
 facie case calls for the introduction of evidence on the other side 
 to meet it. If evidence of equal weight is introduced so that the 
 two sides are in even balance, the plaintiff fails."*' 
 
 The defendant has a right to a charge as to the burden of proof.*^ 
 
 Where the statute makes it a misdemeanor to drive a motor vehicle 
 at a speed greater than is reasonable and proper and makes certain 
 speeds under certain conditions prima facie evidence that the speed is 
 greater than reasonable and proper the burden remains on the prosecu- 
 tion to show that the speed was unreasonable even though the evidence 
 shows a speed greater than the statute names as prima facie evidence.*' 
 
 A charge that the plaintiff cannot recover if the defendant has made 
 it appear that he himself used ordinary care is not error where the 
 judge elsewhere charges that the burden of proof is upon the plaintiff.*" 
 
 § 1653. "Presumptions" are of two kinds, namely : (i) "presump- 
 tions of law," and (2) "presumptions of fact." "Presumptions of law" 
 "consist of those rules which in certain cases either forbid or dispense 
 with any ulterior inquiry. They are founded either upon the first 
 principles of justice or the laws of nature, or the experienced course 
 of human conduct and affairs, and the connection usually found to 
 exist between certain things."^" In Com. v. Marzynski" Mr. Justice 
 
 *=IS8 Mass. 17, 18, 32 N. E. 900. 
 
 *'See also Powers v. Russell, 30 Mass. (13 Pick.) 69; Central Bridge v. But- 
 ler, 68 Mass. (2 Gray) 130; Nicholas v. Munsel, 115 Mass. 567; Thompson, 
 Com. on Negligence, 2d ed., sec. 367. 
 
 *'McCormick v. New York City, 162 App. Div. 539, 147 N. Y. S. 917. 
 
 ^^Commonwealth v. Cassidy, 209 Mass. 24, 95 N. E. 214. 
 
 <»Wadley v. Dooly, 138 Ga. 27s, 75 S. E. i53- 
 
 BOi Greenleaf on Evidence, Sec. 14 (isth ed.). 
 
 BI149 Mass. 68, 21 N. E. 228. 
 
 1040 
 
PRESUMPTIONS AND BUEDEN 01^ PROOF § 1654 
 
 Knowlton says that "some facts are so obvious and familiar that the law 
 takes notice of them and receives them into its own domain." Such 
 facts so received are called presumptions of law. 
 
 Presumptions vary in their strength from "conclusive," partaking 
 of the nature of conclusive evidence which admits of no negation, to 
 "prima facie," that is to say, presumptions which are subject to re- 
 buttal. Thus, under the provisions of Sec. i6, Chap. 534, of the Mass. 
 Act of 1909, an operator who runs his car outside the "thickly settled" 
 part of a city or town, at a speed which exceeds twenty miles an hour 
 for the distance of one-quarter of a mile, gives rise to a prima facie 
 presumption that he is operating at a speed which endangers the public 
 safety. The presumption may be rebutted, but the burden is on the 
 motorist so to do. 
 
 "Presumption of fact" is an expression difficult of exact definition. 
 In general the phrase expresses a rule of law that "courts and judges 
 will draw a particular inference from a particular fact, or from par- 
 ticular evidence, unless and until the truth of such inference is dis- 
 proved.""*^ By way of example: The person in the driver's seat 
 with his hand on the steering apparatus and controlling the motive 
 power, would give rise to the presumption as a matter of fact, that he 
 was the operator of the automobile."^ 
 
 Presumption of innocence. — "Presumptions both of law and fact 
 are always in favor of innocence," so if it be not shown affirmatively 
 that the motorist was at the time of the occurrence in issue, engaged in 
 violating a provision of law, he will be presumed innocent in respect of 
 such a violation.^* 
 
 Judicial notice of possible speed."' — The court will take judicial 
 notice of the fact that many automobiles may be driven at a speed of at 
 least forty miles an hour."' 
 
 § 1654. In a criminal case the presumption is always innocence 
 until guilt is established. But this presumption "may be overthrown, 
 
 62 Stephen's Dig. Law of Ev. (Chase, s, 2d ed.) ; Gaynor v. Old Colony, Etc., 
 R., 100 Mass. 211. 
 ssCom. V. Crowninshield, 187 Mass. 221, 226, 72 N. E. 963. 
 "Doherty v. Ayer, 197 Mass. 241, 248, 83 N. E. 677, 125 Am. St. 355- 
 '^See also § 1600, Judicial notice. 
 
 seEx parte Berry, 147 Cal. 523, 82 Pac. Repr. 44, 45; People v. Schneider, 139 
 Mich. 673, 103 N. W. 172. 
 
 1041 
 66 
 
§ l6SS BVIDENCfi 
 
 and a presumption of guilt raised by the misconduct of the party, in 
 suppressing or destroying evidence which he ought to produce."^^ 
 For example— destroying, disfiguring, removing or concealing number 
 plates on an automobile or motor cycle; running with false number 
 plates, or during the hours of darkness, without lights ; giving a false 
 name or address ; or refusing the lawful demands of a proper official, 
 any or all, with intent to conceal the identity of the vehicle or of the 
 operator or owner ; or hastening away without making himself known 
 after the occurrence of an accident.'" 
 
 A presumption so raised may be rebutted by appropriate evidence in 
 explanation. 
 
 § 1655. Presumption of unchanged speed. — Within proper limits 
 it is competent for speed to be proven at a place other than that in- 
 volved in the issue, but it must not be too remote, and it must also be 
 shown that the speed had not been altered.^' 
 
 The circumstances that at a point 100 or 150 feet from the collision 
 the defendant was driving at ten to fifteen miles an hour is one from 
 which the jury might infer that at or immediately before the collision 
 he was exceeding the legal limit of eight miles an hour.°° 
 
 It is error to permit a witness to be asked the average speed of an 
 automobile for a mile back before the accident as it is a matter of 
 common knowledge that a driver can so change the speed within those 
 limits that this evidence is of no value.*^ 
 
 Evidence that an automobile was traveling at high speed seven hun- 
 dred feet before reaching the place of the accident is inadmissible as the 
 defendant had ample time to reduce his speed.®^ 
 
 VI. Documentary 
 
 § 1656. Books of account. 
 
 1657. Time cards. 
 
 1658. Hospital records. 
 
 5^1 Greenleaf on Evidence, Sec. 37 (isth ed.). 
 
 B^AU being provisions of motor vehicle acts ; see §§ 47, 50, 409. 
 
 59Louisville, Etc., R. v. Jones, 108 Ind. 566, 9 N. E. 476; Black v. Burlington, 
 Etc., R., 38 Iowa S18; Moore on Facts, Sec. 424; National Casket Co. v. Powar, 
 137 Ky. 156, I2S S. W. 279. 
 
 ooBauhofer v. Crawford, 16 Cal. App. 676, 117 Pac. 931. 
 
 oiPeopIe V. Barnes, 182 Mich. 179, 148 N. W. 400. 
 
 «2Armann v. Caswell, 30 N. D. 406, 152 N. W. 813. 
 
 1042 
 
DOCUMENTARY § 1656 
 
 1659. Mortality tables. 
 
 1660. Models, maps and diagrams. 
 
 1661. Photographs. 
 
 1662. Proof of license or certificate of registration. 
 
 1663. Existence of public report of breach of speed laws. 
 
 § 1656. Books of account.— The admission of books of account in 
 evidence is proper, if they are properly identified and shown to be free 
 from fraud. "The irregularities in the books should be exceedingly 
 gross and palpable, to justify the court in arresting the evidence" from 
 the jury "whose peculiar province it is to judge of the credibility of 
 testimony."'^ 
 
 An account cannot be proved by evidence of one who had no per- 
 sonal knowledge of it but who simply received daily reports of the 
 work done. The "time slips" made by the mechanics are admissible 
 when identified by the workmen who made them and their correctness 
 vouched for by them. So the superintendent of the shop cannot testify 
 to them simply because they were made out and signed by the men 
 under him.** 
 
 § 1657. Time cards. — Time cards, based on the reports of the 
 workmen as to the number of hours they worked may be admissible."'* 
 
 § 1658. Hospital records. — A hospital record kept under the rules 
 of the hospital is admissible although the man who made it is out of 
 the state and it is founded in part on information imparted to him by 
 others.*' 
 
 § 1659. Mortality tables. — The practice of admitting standard mor- 
 tality tables in evidence in cases where permanent injuries are claimed 
 "has become too well established to admit of question." The court 
 is at liberty to take judicial notice of the standard mortality tables. 
 These tables are not binding upon the jury, nor are they to be taken as 
 absolute guides of the judgment and conscience of the jury, but rather 
 to assist the jury in making an award of fair and reasonable compen- 
 sation, taking into consideration all the facts and circumstances." 
 
 83Bush V. Fourcher, 3 Ga. App. 43, 59 S. E. 459- 
 
 «*Randle v. Harden, Tex. Civ. App. 1914, 164 S. W. 1063. 
 
 65New York Motor Car Co. v. Greenfield, 145 N. Y. S. 33 (N. Y. Sup. 1914)- 
 
 6«Ribas V. Revere Rubber Co., 37 R. I. 189, 91 Atl. 58. 
 
 '^Vicksburg, Etc., R. Co. v. Putnam, 118 U. S. S4S (7 Sup. Ct., i L. Ed. 257) ; 
 Goodes V. Lansing, Etc., Traction Co., 150 Mich. 494, IT4 N. W. Repr. (Mich.) 
 338; Clark V. Van Vleck, 135 Iowa 194, "2 N. W. 648; Suell v. Jones, 49 Wash. 
 582, 96 Pac. 2. 
 
 1043 
 
§ l66o EVIDENCE 
 
 § 1660. Models, maps and diagrams are also admissible, but it is 
 clearly necessary that "preliminary evidence should be given of the 
 correctness of the representation. The determination of the trial judge 
 on this question will not be reviewed by the appellate court."'* Meas- 
 urements made subsequently to the event are subject to the same rule." 
 
 A plot made by a surveyor is properly used at a trial of an action for 
 personal injuries from an automobile accident.'"' 
 
 § 1 66 1. Photographs of places and objects have been admitted in 
 evidence. The rule governing such admission is thus stated by Chief 
 Justice Gray in Blair v. Phelham :" 
 
 "A plan or picture, whether made by the hand of man or by 
 photography, is admissible in evidence, if verified by proof that 
 it is a true representation of the subject, to assist the jury in 
 understanding the case." * * * "Whether it is sufficiently 
 verified is a preliminary question of fact, to be decided by the 
 judge presiding at the trial and not open to exception."" 
 
 Their admission is governed by the rules pertaining to the admis- 
 sion of secondary evidence.'''' The photograph should be proven to 
 have been taken at or near the time of the occurrence of the event in 
 aid of which it is offered, and before there is any change in the condi- 
 tion or position of affairs, certainly not at a time remote therefrom 
 when change may have occurred.''* The various steps of the processes 
 of taking and developing photographs should be verified by proof 
 preliminary to their admission "as correct and truthful representations," 
 because, as stated by the judge in the case last cited : 
 
 "Courts also know that photography is an art, and that in the 
 hands of inexperienced or interested persons photographs may 
 be made to misrepresent their originals.""* 
 
 Bsjones on Evidence, Sec. 411 (2d ed.) ; Com. v. Buxton, 205 Mass. 49. 
 eoNesbit v. Garner (Township), 75 Iowa 314, 320, 39 N. 'W. 316. 
 Topletcher v. Dixon, 113 Md. App. loi, 77 Atl. 326. 
 I'll 18 Mass. 421. 
 
 '^See also Com. v. Morgan, 159 Mass. 37S, 34 N. E. 458, and McKarren v. 
 Boston, Etc., Ry., 194 Mass. 179, 80 N. E. 477- 
 "Goldsboro v. Central R. Co., 60 N. J. Law 49> 37 Atl. 433- 
 '*Porter v. Buckley, 147 Fed. Repr. 140, 143 (N. J.). 
 "iSee Pfeiflfer v. Radke, 142 Wis. 512, 125 N. W. 934. 
 
 1044 
 
SURROUNDING CIRCUMSTANCES § 1662 
 
 Photographs are properly admitted when proved by competent evi- 
 dence to show the condition and width of the road and showing two 
 machines in it as it was claimed they were at the time of the accident." 
 
 § 1662. Proof of license or certificate of registration.— Where the 
 accused relies in his defense upon a license, certificate, or other author- 
 ity even though issued by public officials by virtue of statute provisions, 
 he must prove the same as part of his case to make it available. In 
 Massachusetts the rule is declared by statute," as follows : 
 
 "A defendant in a criminal prosecution who relies for his 
 justification upon a license, appointment or authority shall prove 
 the same ; and until he has proved it, the presumption shall be 
 that he is not so authorized." 
 
 § 1663. Existence of public report of breach of speed laws. — 
 Evidence as to whether the city authorities received any report of a 
 violation of the speed laws on the day of the accident is inadmissible." 
 
 VII. Surrounding Circumstancbs 
 
 § 1664. In general. 
 
 1665. Motive for haste. 
 
 1666. Time or distance within which vehicle stopped. 
 
 1667. Evidence as to position of vehicle after accident. 
 
 1668. Wheel tracks. 
 
 1669. Marks on road. 
 
 1670. Effects of collision. 
 
 1671. Damaged parts of car. 
 
 1672. Evidence of condition of automcfbile when shipped. 
 
 1673. Failure of driver to hear screams. 
 
 1674. Conduct after accident. 
 
 1675. That driver runs away. 
 
 1676. Speed of automobile before accident. 
 
 1677. Speed after accident. 
 
 1678. Operator talking. 
 
 1679. Subsequent acts of defendant— evidence of. 
 
 1680. Power of the engine, etc. 
 
 1681. Speed claimed impossible. 
 
 1682. Appearance of persons. 
 
 'BQ'Neil v. Potts, Minn. 1916, 153 N. W. 856. 
 
 "Revised Laws, Chap. 219, Sec. 7. 
 
 TsMcCown V. Muldrow, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914 A. 137- 
 
 1045 
 
§ i6b4 EVIDENCE 
 
 § 1664. In general. — Where the testimony is conflicting all the cir- 
 cumstances surrounding the accident should be examined to determine 
 the accuracy of the testimony given and such evidence may well be con- 
 clusive of the rights of the parties. For example in a recent case the 
 court remarked : 
 
 "From the physical facts surrounding the collision it appears 
 that which ever way plaintiff used the street just before and at 
 the time of the collision, proves him negligent of either failing 
 to keep a proper lookout and of thus avoiding a collision with 
 the defendant, or of so using the street near a passing street car 
 in a manner and at a rate of speed as made it inevitable that he 
 would collide with travelers emerging from behind street cars 
 and attempting to pass over the crossing streets."" 
 
 § 1665. Motive for haste. — If it is shown that there was a motive 
 for haste, it will furnish some ground for an inference of overspeed- 
 ing, — e. g. a railroad train behind time, or that the occupant of a ve- 
 hicle was desirous of catching a train.*" The fact that the automobilist 
 is driving to keep an engagement then overdue is an indication of an at- 
 tempt to hasten to his destination.'^ 
 
 § 1666. Time or distance within which vehicle stopped.*^ — One 
 
 of the most significant of these surrounding circumstances is the dis- 
 tance which the automobile runs after the accident. Such evidence 
 may bear on the question whether the driver was keeping a proper 
 lookout. Where a defendant claims that she was driving so slowly that 
 she could stop instantly but nevertheless did run both front and rear 
 wheels over the plaintiff the jury may well find either that she was driv- 
 ing rapidly or failed to keep a proper lookout,'^ and on the issue of the 
 speed of the automobile it is very important.'* 
 
 T^Weber v. Swallow, 136 Wis. 46, 116 N. W. 844. 
 
 s"! Moore on Pacts, Sees. 461, 463. 
 
 siDeputy v. Kimball, 73 W. Va. SPS, 80 S. E. 919, 5i L. R. A. N. S. 989, 8 N. 
 C. C. A. 369. 
 
 82As to street cars, see §§ 1412, et seq. 
 
 s^Aronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641. 
 
 8*Bachelder v. Morgan, 179 Ala. 339, 60 So. 815; Ann. Cas. 1915, c. 888, 5 N. 
 C. C. A. 187, 7 N. C. C. A. s; Ackerman v. Stacey, 157 App. Div. 83S, i43 N. 
 Y. S. 227, where automobile ran seventy feet up grade after accident. 
 
 1046 
 
SURROUNDING CIRCUMSTANCES § 1666 
 
 It is proper to direct the jury to consider, in judging the speed of 
 the car the distance it traveled after the accident before it was stopped. 
 The test of control is the ability to stop quickly and easily." 
 
 Evidence that the automobile was stopped within a very short dis- 
 tance will of course tend to exonerate the driver and a driver will be 
 found not driving recklessly where he stops his machine within a very 
 few feet.** 
 
 In Polsky V. N. Y. Transportation Co." Mr. Justice Ingraham, speak- 
 ing of an automobile which was alleged to have been traveling at a 
 speed of about fifteen miles an hour, and stopped by suddenly turning 
 it into a pile of dirt without injury to itself, says : 
 
 "No vehicle g;oing at the rate of fifteen miles an hour could 
 be stopped within two or three feet, by running upon the pile 
 of dirt without throwing the man off and wrecking the machine." 
 
 So also where the car was stopped within a distance so short as to 
 have been wholly impossible, had the speed been as high as estimated.** 
 On the other hand the evidence may convict the driver of negligence, 
 where the car could not be stopped in less than a considerable distance, 
 thus showing a high rate of speed.*' 
 
 See also Clark v. Van Vleck,"" where the automobile was stopped 
 within sixty feet of the accident. 
 
 Evidence that the defendant's automobile ran thirty or forty feet 
 beyond where it hit the plaintiff although the defendant made every 
 effort to stop it is evidence of negligence.'^ 
 
 Evidence that an automobile ran 141 feet after the accident then 
 breaking a large oak post is evidence that it was running at an unlaw- 
 ful speed at the time of the accident.'^ 
 
 8=I,orah V. Rinehart, 243 Pa. 231, 89 Atl. 967. 
 
 88Daugherty v. Metropolitan Motor Car Co., 85 Wash. 105, 147 Pac. 655. 
 
 87g6 N. Y. App. Div. 613, 614, 88 N. Y. S. 1024. 
 
 **Vogler V. Central, Etc., R., 83 N. Y. App. Div. 103, 82 N. Y. S. 48s ; i Moore 
 on Facts, Sec. 453. 
 
 s'lndianapolis St. Ry. v. Bordenchecker, 33 Ind. App. 138, 70 N. E. Repr. 996; 
 Cannon v. Pittsburgh, Etc., 44 Atl. Repr. 1089, i94 Pa. 159. 
 
 90I3S Iowa 194, 198, 112 N. W. 648. 
 
 »iWilliams v. Benson, 87 Kan. 421, 124 Pac. 531. 
 
 »2Fox v. Barekman, 178 Ind. 572, 99 N. E. 989. 
 
 1047 
 
§ i666 EVIDENCE 
 
 In McFern v. Gardner'^ Presiding Justice Bland, on this point says : 
 
 "The automobile weighed eighteen hundred pounds and was 
 propelled by steam. The horn was not sounded. The evidence 
 tends to show that an automobile traveling twenty-five miles per 
 hour could be stopped with safety to the occupants in thirty 
 feet, one traveling at a speed of twenty miles per hour in twenty- 
 five feet, and one traveling four to six miles per hour in ten 
 feet." 
 
 In Campbell v. St. Louis Transit Co.'* the plaintiff driving his auto- 
 bile, which weighed about a ton, at an alleged speed of "six miles an 
 hour," and approaching a railroad crossing, first saw the street car 
 when within about "forty feet" of the track, "cpming at a speed of 
 twenty-five to thirty miles an hour." Plaintiff testified that he thought 
 he could not clear the track in time to avoid collision, so "did everything 
 he could to stop" his automobile, but was unable to do so before it had 
 run upon the track where the collision occurred. Presiding judge 
 Bland, in delivering the opinion of the court, quotes the testimony of 
 witnesses as follows : 
 
 "John Doyle, an experienced motorman, testified that a car 
 running at a speed of fifteen or twenty miles per hour could 
 be stopped in one hundred and twenty-five feet, and one running 
 at a speed of twenty-five to thirty miles per hour in from one 
 hundred and twenty-five to one hundred and fifty feet." 
 
 "William R. Morgan, a witness for defendant and an auto- 
 mobilist, testified that plaintiff's automobile running at a -speed 
 of fifteen miles per hour, could have been stopped in about thirty 
 feet, and at a speed of six miles per hour in about twenty feet." 
 
 In State v. Watson'' "experienced automobile men" testified that it 
 was not possible to operate such a machine as the one in question mak- 
 ing the turns described in evidence, at the rate of forty miles an hour. 
 They conceded that they could have been made at from twenty to 
 thirty miles an hour. They also testified that such a machine running 
 twenty-five miles an hour could be stopped while running a distance of 
 fifty feet, and that the speed of such a machine running forty miles an 
 
 98I2I Mo. App. i, 8, 97 S. W. 972. 
 
 0*121 Mo. App. 406, 99 S. W. 58. 
 
 95216 Mo. 426, IIS S. W. Repr. 53, ion. 
 
 1048 
 
SURROUNDING CIRCUMSTANCES § 1667 
 
 hour could be reduced to twenty-five miles an hour while running fifty 
 or sixty feet. 
 
 In Rogers v. Mann'" an experienced motorist testified that an auto- 
 mobile running at the rate of seven or eight miles an hour could be 
 stopped "within the space of three or four feet." 
 
 In Christy v. Elliott" Presiding JudgeMagruder says: 
 
 "The evidence of appellee tends to show that the automobile 
 was travehng at the rate of from twenty to thirty miles an hour 
 while that of appellant tends to show that it was going at the 
 rate of only from ten to twelve milea an hour. The road was 
 unobstructed, and it is impossible to believe that appellant did 
 not know and could not see the people approaching him in the 
 wagon froni the north. The jury were justified in concluding 
 that, if he did not see the team approaching, he could have done 
 so by the exercise of ordinary prudence and care."'* 
 
 § 1667. Evidence as to position of vehicle after accident. — ^Evi- 
 dence will also be admitted showing the position of the vehicle or ve- 
 hicles immediately after an accident, as tending to throw light on the 
 issue of speed and direction of the vehicle's movement just prior to 
 and at the time of the occurrence under consideration.'' 
 
 A non-expert witness may give his opinion as to whether a vehicle 
 was in such a position that it could have come from a certain place, 
 or had turned from a certain point, that being a matter of ordinary 
 everyday observation and knowledge.^"" 
 
 § 1668. Wheel tracks. — It is proper to admit testimony showing 
 the position of the wheel tracks of the vehicle or vehicles involved in the 
 accident.^ Evidence of the track of a wheel dragging along side a trail 
 
 9«70 Atl. Repr. 1057 (R. I.) 1908. 
 
 ^''216 111. 31, SI, 74 N. E. 1035. 
 
 '^See the following additional motor vehicle cases on this point : McCreery v. 
 United Railways Co., 221 Mo. 18, 120 S. W. 24; Merklinger v. Lambert, 76 N. J. 
 Law 806, 72 Atl. 119; Lynch v. Shearer, 83 Conn. 73, 75 Atl. Repr. 88; Zoltovski 
 V. Gzella, 159 Mich. 620, 124 N. W. 527; O'Reilly v. Davis, 136 App. Div. 386, 
 120 N. Y. Supp. 883. 
 
 "Flagg V. Hudson, 142 Mass. 280, 8 N. E. 42; Needy v. Littlejohn, 137 Iowa 
 704, IIS N. W. 483; Murphy v. N. Y. City Ry. Co., 58 Misc. 237, 108 N. Y. S. 
 1021 ; Ladhman v. Young, App. Term 1914, 14S N. Y. S. 1089. 
 
 looNesbit v. Crosby, 74 Conn. SS4> S6s, Si Atl. sso. 
 
 1 People V. Scanlon, 132 N. Y. App. Div. S28, 117 N. Y. S. 57- 
 
 1049 
 
§ 1669 EVIDENCE 
 
 of blood is competent to corroborate evidence that plaintiff was struck 
 and dragged.^ Evidence was given that the ice was cut in grooves by 
 the chains on the wheels beginning at a certain point to indicate where 
 the brakes were first set.^ Testimony as to buggy and automobile tracks 
 near the scene of the accident is competent.* 
 
 Where a witness did not see the accident he cannot be permitted to 
 testify as to his opinion of where and which is the track of the plain- 
 tiff's automobile. He should state the facts and if there was any 
 peculiarity about the track or any features by which it could be dis- 
 tinguished from any other automobile track and then it was the province 
 of the jury to determine whether the track in question was made by 
 the plaintiff's car or by some other car.® 
 
 § 1669. Marks on road. — A pool of blood, collar button, and 
 scraped place in the road as where something had been dragged and 
 tracks of a bicycle and automobile may be evidence as to where the ac- 
 cident happened.* 
 
 § 1670. Effects of collision. — The damage to the vehicle or to both 
 vehicles, or to a person, resulting from a coHision, is frequently evi- 
 dence of high value in determining speed.^ 
 
 The relative positions of the two vehicles just after the collision and 
 the locations of the damage done to them may show which vehicle was 
 the aggressor in the collision.' 
 
 So also to determine which of the vehicles was the active participant 
 in the collision the jury may have a view of the automobile.' A non- 
 expert witness who examined an automobile directly after the accident 
 may testify that the brakes were not set and that the machine was in 
 gear. This is a statement of fact.^" 
 
 2Meier v. Wagner, 27 Cal. Spp. 579, 150 Pac. 797. 
 
 sRowe V. Hammond, 172 Mo. App. 203, i57 S. W. 880, S N. C. C. A. 127. 
 
 *Scott V. O'Leary, 157 Iowa 222, 138 N. W. S12. 
 
 BBlalack v. Blacksber, 11 Ala. App. S4S, 66 So. 863. 
 
 «Louisville Lozier Co. v. Sake, Ky. 1916, 180 S. W. 841. 
 
 ^McCarragher v. Proal, 114 N. Y. App. Div. 470, 100 N. Y. S. 208; Moore on 
 Facts, Sees. 450, 451. 4S2. See also Murphy v. N. Y. City Ry. Co., 108 N. Y. 
 Supp. 1021, 1908. 
 
 sMurphy v. N. Y. City Ry. Co., 58 Misc. 237, 108 N. Y. Supp. 1021. 
 
 oCampbell v. Dreher, Ky. 1908, no S. W. 353- 
 
 "Scott V. O'Leary, 157 Iowa 222, 138 N. W. 512. 
 
 1050 
 
SURROUNDING CIRCUMSTANCES § 167I 
 
 In Flagg V. Hudson" the judge in charging the jury (affirmed by 
 the court above), after referring to the oral testimony regarding the 
 occurrences, said : 
 
 "It may be more decisively ascertained by the testimony of 
 the consequences of the collision, indicating the speed of the 
 plamtiflf's carriage and the force of the collision." 
 
 In Campbell v. Dreher" the damaged automobile was exhibited to 
 the jury as evidence of the force and direction of the collision. 
 In Brennan v. Met. St. Ry.'^ it was said : 
 
 "That the car was proceeding at a rapid pace is confirmed 
 by the fact that although it struck only the rim of the hind 
 wheel, the impact was so great as to completely overthrow the 
 wagon."" 
 
 Evidence that the defendant's car on hitting another car lifted it 
 bodily in the air and hurled it twenty or twenty-five feet and turned it 
 round contradicts defendant's evidence that it was going only twelve to 
 twenty miles an hour.^^ 
 
 In a recent case the court refused to recognize the plaintiff's claim 
 that his car, a light runabout, was struck head on by the defendant's 
 heavy touring car moving forty miles an hour as the runabout was not 
 badly smashed up.^* A verdict for the plaintiff was however affirmed 
 where the plaintiff claimed to have been thrown from her buggy, al- 
 though neither the automobile or the buggy showed any marks of the 
 collision. ^'^ 
 
 § 1671. Damaged parts of car. — The radiator of an automobile is 
 properly admitted in evidence in an action for injuries to the car.^° 
 
 "142 Mass. 287, 8 N. E. 42. 
 
 12110 S. W. Repr. 353 (Ky.) 1908. 
 
 "60 N. Y. App. Div. 266, 69 N. Y. S. 1025. 
 
 i*The following cases are in the same line: Gurney v. Piel, 105 Maine 501, 
 74 Atl. 1131; People V. Scanlon, 132 N. Y. App. Div. 528, 117 N. Y. S. 57; Klein 
 V. Burleson, 138 App. Div. 405, 122 N. Y. Supp. 752. 
 
 i^Schultz V. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. N. S. 403. 
 
 I'Bayles v. Plumb, 126 N. Y. S. 425, 141 App. Div. 786. 
 
 i^Klein v. Burleson, 138 App. Div. 405, 122 N. Y. Supp. 752. 
 
 isNeel v. Smith (Iowa 1914), 147 N. W. 183. 
 
 105 1 
 
§ 1672 BVID^NCE 
 
 § 1672. Evidence of condition of automobile when shipped. — 
 Where automobiles were sold to be in good running condition f. 0. b. 
 cars at Kansas City evidence of their bad condition on arrival at their 
 destination is admissible to show their bad condition when placed on the 
 cars.^* 
 
 § 1673. Failure of driver to hear screams. — The fact that the 
 driver of an automobile has no knowledge that an accident has happened 
 may be potent evidence of his carelessness. In a recent case it is said : 
 
 "The testimony of the witnesses for the state clearly estab- 
 lished an improper and unlawful rate of speed of this vehicle, 
 and the truth of this testimony is emphasized by the testimony 
 of the defendant. The defendant, in his testimony, says that 
 * * * he did not know that his car had struck anybody. The 
 uncontradicted testimony in this case is that the screams of the 
 little girls at the time of the accident were heard some blocks 
 away, and that the automobile struck and ran over a substantial 
 part of the body of the little girl that was killed. In view of 
 this state of facts, if the defendant did not know that he had 
 struck anybody, such want of knowledge can only be attributed 
 to the running of the automobile at such a careless and reckless 
 rate of speed that the screams of the children and the striking 
 of the body of one of them failed to make any impression upon 
 him. Manifestly, had he been operating this machine at a 
 speed of only ten miles an hour he would not have failed to have 
 heard the noise and screams made by the little girls, nor would 
 the striking of the body of this little girl, which inflicted the 
 fatal injuries upon her have failed to impress him that some one 
 had been struck by his machine, then the conclusion as above 
 indicated is the only rational one that can be reached."^" 
 
 § 1674. Conduct after accident.— The conduct of the defendant's 
 chauffeur after the accident is not relevant except as it is a part of the 
 res gestce?^ 
 
 § 1675. That driver runs away. — That a driver goes on without 
 stopping after hitting a pedestrian is a circumstance indicitative of 
 guilt on his part in a prosecution for manslaughter." 
 
 I'Kelly V. Times Square Automobile Co., 170 Mo. App. 64, 156 S. W. 62. 
 20State V. Watson, 216 Mo. 420, 115 S. W. loil. 
 "Minor v. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. 1178. 
 22State V. Biewen, 169 Iowa 256, 151 N. W. 102. 
 
 1052 
 
SURROUNDING CIRCUMSTANCES § 1676 
 
 § 1676. Speed of automobile before accident.— The court holds 
 that testimony as to the speed of an automobile when it started before 
 an accident is not prejudicial to defendant as it cannot be supposed to 
 have caused the jury to find for the plaintiiif.^' 
 
 § 1677. Speed after accident.— It is proper to prove how fast de- 
 fendant traveled after the occurrence of the accident "as tending to 
 show guilty knowledge."^* 
 
 § 1678. Operator talking.— The jury may find negligence of an 
 operator on evidence that just before the accident he was engaged in 
 conversation with an occupant of the car with his head turned toward 
 his companion.^^ 
 
 § 1679. Subsequent acts of defendant— evidence of. — Evidence to 
 show that the defendant has, since the occurrence of a mishap, taken 
 precautions to avoid an accident happening again in a similar man- 
 ner, does not necessarily prove anything in the nature of an admission 
 on the part of the defendant that he was guilty of negligence in the 
 particular instance. The theory of the value of such proof is that the 
 defendant could have taken the precaution earlier and so have avoided 
 the casualty in question. I^ord Bramwell says in Carstairs v. Taylor :^» 
 
 "'To treat this as evidence of negligence is to say that when- 
 everthe world grows wiser it convicts those that came before of 
 negligence."^^ 
 
 § 1680. Power of the engine, etc. — It is competent to show the 
 power of the engine and appliances of the vehicle, that have an effect 
 on its speed and capacity to develop speed. Thus, if it were testified 
 that an automobile was being driven at "forty or fifty miles an hour," 
 and it were then shown that it was a vehicle having an extreme speed 
 of not over fifteen miles an hour, the value of the opinion evidence 
 would be dissipated. So also it is competent to show the design and 
 construction of the engine and machinery with reference to power to 
 drive the car, and whether it was old or new, and in good or bad con- 
 
 23McCown V. Muldrow, 91 S. C. 523, 74 S. E. 3S6, Ann. Cas. 1914 A, 139. 
 
 2*See § 1466; State v. Welford, 28 R. I. 4S0, 72 Atl. 396. 
 
 "BLynch v. Fiske Rubber Co., 209 Mass. 16, 95 N. E. 400, 2 N. C. C. A. 298. 
 
 206 L. R. Exchq. 217, 222. 
 
 "See Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236, 66 S. E. Repr. 624. 
 
 1053 
 
§ i68l EVIDENCE 
 
 dition, as bearing on the fact of the actual speed on the occasion in 
 question.^^ 
 
 Whitney v. lyeominster^' was an action wherein fast driving of a 
 horse was an issue. The court say : 
 
 "It was in controversy whether the plaintiff was in the exer- 
 cise of due care, and there was evidence tending to show that he 
 was driving at a high rate of speed. * * * As tending to 
 shoAV the capacity of the plaintiff's horse for speed, and as 
 bearing upon the probability of the testimony as to his actual 
 speed at the time of the accident, the defendant was permitted 
 to show that the horse had been driven on a race course at the 
 rate of a mile in three minutes. As thus limited, the evidence 
 was competent. The fact to be determined was undoubtedly 
 the rate of speed at which the horse was driven at the time of 
 the accident; but when the testimony showed a very high rate 
 of speed, as bearing upon its reasonableness and probability, it 
 was competent to show that he had a great capacity for speed, 
 even if it might also be true that he was not then driven at his 
 full speed. It would have been competent for the plaintiff to 
 show, in answer to the defendant's testimony, that the horse was 
 incapable of such a rate as fifteen miles an hour, arid that he 
 could not be driven or urged more than five miles an hour." 
 
 The case of Tuttle v. Lawrence,'" apparently holding differently from 
 the position just stated, is distinguished in Whitney v. Leominster 
 (supra) , on the ground that 
 
 "it was deemed" in Tuttle v. Lawrence, "to be within the dis- 
 cretion of the presiding judge to limit the inquiry to the speed 
 at which the horse was capable of going. It by no means fol- 
 lows from this decision that had the evidence thus offered been 
 received, its admission would have furnished ground of excep- 
 tion." 
 
 § i68r. Speed claimed impossible. — In all cases opinion testimony 
 must give way to positive or physical facts, or to the evidence of in- 
 controvertible circumstances. Thus if it be testified that in the opinion 
 of the witness, the vehicle was running "at the rate of from thirty to 
 
 2SSilberman v. Huyette, 22 Mont. Co. (Pa.) Reps. 39, 1904; DuUberger v. 
 Gimbel Bros., 76 Misc. 225, 134 N. Y. S. 574- 
 2»i36 Mass. 25. 
 s'lip Mass. 276. 
 
 1054 
 
SURROUNDING CIRCUMSTANCES § 1682 
 
 thirty-five miles an hour," and it is proven that it was ascending a long 
 or steep grade, or passing over a heavy or muddy road, where it could 
 not be rapidly propelled, the value of the estimate must be impaired. 
 It may retain a scintilla of weight, but can hardly be sufficient to con- 
 tradict the evidence of actual road conditions.^^ 
 
 In Zalotuchin v. Metr. St. Ry.»^ Mr. Justice Johnson says : 
 
 "The rule is well settled that testimony utterly at war with 
 physical facts and laws within the knowledge of common ex- 
 perience, will be disregarded and treated as though it had not 
 been spoken." 
 
 The testimony of independent facts showing speed is tangible, what- 
 ever may be the value of the opinion of the witness, particularly if the 
 opinion is not founded on some standard of rapidity.^' 
 
 Thus, where it was shown that an automobile was moving at the rate 
 of seven feet per second in a crowded city street, "the jury was amply 
 justified in finding negligence on the part of the driver."^* 
 
 So where a witness testifies that he looked and saw no automobile as 
 far as he could see which was two hundred feet and that according to 
 his story the automobile came two hundred feet while he was walking 
 five feet, which meant that the automobile was going one hundred and 
 twenty miles an hour, his story cannot be believed and it is evident that 
 he did not look with the care demanded by law.'° 
 
 § 1682. Appearance of persons. — Witnesses are permitted to de- 
 scribe the physical appearance of persons and things at the time of an 
 occurrence, also prior and subsequently thereto, and even to state their 
 impressions and conclusions concerning "indications of disease or 
 health," and also "the condition or quality" of persons and animals; 
 
 siMuster v. Chicago, Etc., R., 61 Wis. 332, 21 N. W. 223 ; Hoope v. Chicago, 
 Etc., R. 61 Wis. 364, 21 N. W. 227 ; Zolpher v. Camden, Etc., R., 69 N. J. Law 
 (40'vroom) 417, 55 Atl. Repr. 249; McCarragher v. Proal, 114 N. Y. App. Div. 
 470, 474, 100 N. Y. S. 208; I Moore on Pacts, Sees. 448, 4Si, 4S3. 
 
 32127 Mo. App. S77, 106 S. W. Repr. 548. 
 
 s^Grand Rapids, Etc., v. Huntley, 38 Mich. 540; Mathieson v. Omaha St. Ry., 
 3 Neb. (Unofficial) 743, ^1 N. W. Repr. 244; Silberman v. Huyette, 22 Mont. Co. 
 (Pa ) Repr 39; Weber v. Swallow, 136 Wis. 46, 116 N. W. Repr. 844. 
 
 8*Garside v. N. Y. Transp. Co., 146 Fed. Repr. 588, 693, C. C. 1906; Moody v. 
 Osgood, 60 Bar¥. 644 (N. Y.) ; Kennedy v. Way, Brightley's Rep. (Pa.), 186. 
 
 350'ReiUy v. Davis, 136 N. Y. App. Div. 386, 120 N. Y. S. 883. 
 
 1055 
 
§ 1683 EVIDENCE 
 
 to give testimony as "to the condition of health of a person, and that 
 he is ill or disabled," or that he "acted as if he felt" well or ill, happy 
 or sad."" 
 
 A dressmaker who had for a long time made the plaintiff's gowns 
 has been permitted to testify that "she noticed a difference in Mrs. 
 Garsides" (the plaintiff) "right hip quite a while after the accident."" 
 
 § 1683, 
 1684, 
 168s, 
 1686. 
 1687, 
 1688, 
 1689, 
 
 VIII. ExPBST Opinion Evidence 
 
 Expert evidence as to distance within which automobile could be stopped. 
 
 Expert evidence of value. 
 
 Expert evidence of speed. 
 
 Experience acting in official capacity. 
 
 Opinion as to safety of car. 
 
 Form of experts' opinion. 
 
 Expert's qualifications decided by lower court. 
 
 § 1683. Expert evidence as to distance within which automobile 
 could be stopped. — The opinion of experienced drivers as to the dis- 
 tance within which an automobile could be stopped is commonly ad- 
 missible for various purposes. Thus experts may testify as to the 
 distance within which a car of the defendant's make could be stopped,'' 
 or as to the distances within which an automobile could be stopped 
 while running at different rates of speed.'' So an experienced driver 
 may testify of his opinion as to the time or distance within which a truck 
 could be stopped under conditions like those at the place of the acci- 
 dent." 
 
 Expert evidence of those familiar with automobiles may be admitted 
 to show the distance in which a car might be stopped at various speeds 
 and the speed at which it must have been running to cause the injuries 
 complained of.*^ 
 
 However where the only issue seems to be the defendant's due care 
 expert evidence as to the distance within which a car could be stopped 
 is incompetent as the defendant's duty is not to be measured by a stand- 
 
 s«Com. v. Sturtivant, 117 Mass. 122, 133. 
 
 'TN. Y. Transp. Co. v. Garside, 157 Fed. Repr. 521, 524, 85 C. C. A. 285. 
 
 ssjohnson v. Irwin, 130 Minn. 134, 153 N. W. 267. 
 
 s'Blado v. Draper, 89 Neb. 787, 132 N. W. 410. 
 
 *0Withey v. Fowler Co., 164 Iowa 377, 145 N. W. 923. 
 
 *iTooker v. Perkins, 86 Wash. 567, 150 Pac. 1138. 
 
 1056 
 
EXPERT OPINION § 1684 
 
 ard fixed by what an expert driver could do in stopping his car and 
 avoiding a collision.*^ 
 
 Expert testimony is n6t necessary to show that if an electric car 
 had been under control and traveling at a reasonable rate of speed it 
 could have been stopped in time to avoid the accident.*^ 
 
 § 1684. Expert evidence of value.** — ^Experts from a neighboring 
 city may testify as to the value of an automobile.*^ Witnesses who are 
 not expert machinists but who have had some experience in handling 
 machines like the one in contest may testify that it is worthless.*® 
 
 § 1685. Expert evidence of speed. — One who has had experience 
 in objects moving at speed may qualify as an expert as to the 
 speed of an automobile he saw. Thus an experienced railroad en- 
 gineer may testify as to the speed of an automobile.*' 
 
 § 1686. Experience ; acting in official capacity. — In the nature of 
 things, the testimony of a witness who has had experience in timing 
 or noting the speed of motor vehicles, is evidence of better quality 
 than that of one who has not. It would seem that if such a person at 
 the time, was acting in an official capacity and without bias, his evi- 
 dence would have still higher value.*' 
 
 § 1687. Opinion as to safety of car. — Only an expert witness can 
 give his opinion that the mechanical construction of an automobile is 
 defective.*' 
 
 § 1688. Form of expert's opinion. — Where the facts are in dispute 
 an expert witness cannot give his opinion but may only answer a hypo- 
 thetical question." 
 
 § 1689. Expert's qualifications decided by lower court.— The 
 judgment of the trial court as to whether an opinion of an expert is 
 
 *2Meier v. Wagner, 27 Cal. App. 579, 150 Pac. 797- 
 
 isChappell V. United Rys. Co., 174 Mo. App. 126, 156" S. W. 819. 
 
 **See post, § 1742- ^^ „, 
 
 "Schall V. Northland Motor Car Co., 123 Minn. 214, I43 N. W. 357- 
 
 *eE. M. F. Co. V. Davis, 146 Ky. 231, 142 S. W. 391- 
 
 i^Harnau v. Haight, Mich. 1916, iSS N. W. 563. 
 
 ^Thomas v. Chicago & G. T. Railway Co.. 36 Mich. 4941 Campbell v St. 
 Louis Etc., R., I7S Mo. I77, 75 S. W. 86; Hoppe v. Chicago, Etc., R 61 Wis. 
 365; Moore on Facts, Sees. 478, 1044; Porter v. Buckley, 147 Fed. Repr. 140 
 
 *9White Auto Co. v. Dorsey, 119 Md. 251, 86 Atl. 617. 
 
 soMcCown V. Muldrow, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914 A, I39. 
 
 1057 
 67 
 
§ 1690 BVID^NCE 
 
 proper and as to whether he is qualified will be sustained on appeal un- 
 less obviously abused."^ 
 
 IX. Opinions of Non-Experts 
 
 § 1690. In general. 
 
 1691. Experience of non-expert witness. 
 
 1692. Conclusions inadmissible. 
 
 1693. Non-expert witnesses cannot characterize the speed. 
 
 1694. Plaintiff may give opinion. 
 
 1695. Opinion incompetent if based on hearsay. 
 
 1696. Opinion of speed based on comparison. 
 
 1697. Opinion based on speed of exhaust. 
 
 1698. Opinion as to room to pass. 
 
 1699. Speed. 
 
 1700. Belief of witness as to facts. 
 
 1701. Testimony of passengers. 
 17QZ. Neighbors may testify. 
 
 1703. Non-expert opinion whether operator careful. 
 
 1704. Province of court. 
 
 § 1690. In general. — All evidence must at the last analysis, rest 
 upon "grounds of belief." Avoiding the doctrine of the relativity of 
 human knowledge and all other metaphysical theories on this subject, 
 and adhering to well-understood lines, we find the grounds of all belief 
 to rest either (i)' in our own perceptions and experience, or (2) in 
 conclusions drawn from the experience of others, which have been so 
 brought home to us that we give them full credit and make them our 
 own."^ This subject- is rather closely allied to that of "direct" evi- 
 dence already referred to. In order to avoid running into abstraction 
 the law rests it upon the judgments, conclusions and opinions which men 
 form every day from facts and occurrences passing under their observa- 
 tion, in the formation of which no special knowledge or training is re- 
 quired. Such opinions, judgments and conclusions are called "facts," 
 and being so formed are said to be within the "personal knowledge" of 
 the witness. When, however, the matter passes beyond the bounds of 
 ordinary observation or perception, and runs into inferences, deduc- 
 tions and opinions formed by purely intellectual processes, or to judg- 
 ments and conclusions so arrived at, then the testimony falls within the 
 
 siMcCown V. Muldrow, gi S. C. 523, 74 S. E. 386, Ann. Cas. 1914 A. 139. 
 o^i Greenleaf on Evidence (iSth ed.), Chap. III. 
 
 1058 
 
OPINIONS OP NON-EXPERTS § 169I 
 
 general rule of evidence that the "opinion" of a witness is inadmissible, 
 on the ground that such opinion is deemed to be "irrelevant" to the 
 existence of the fact in dispute."' 
 
 In Conn. Ins. Co. v. Lathrop" the Supreme Court thus state it : 
 
 "The general rule undoubtedly is, that witnesses are restricted 
 to proof offacts within their personal knowledge, and may not 
 express their opinion or judgment as to matters which the jury 
 or the court are required to determine, or which must constitute 
 elements in such determination. To this rule there is a well- 
 established exception in the case of witnesses having special 
 knowledge or skill in the business or art, or science, the prin- 
 ciples of which are involved in the issue to be tried."'" 
 
 In Fletcher v. Dixon" Chief Justice Boyd, speaking for the Supreme 
 Court of Maryland, says on this subject: 
 
 "There is a general concurrence of authority and decisions 
 in support of the proposition that expert testimony is not ad- 
 missible upon a question which the court or jury can themselves 
 decide upon the facts. * * * The witnesses whether experts 
 or not, could give their knowledge of the horse and its traits, but 
 the jury could judge as well as they could, whether it was safe 
 for the plaintiff to drive this particular horse, without having the 
 opinions of witnesses on the subject."" 
 
 § 1 69 1. Experience of non-expert witness. — A non-expert witness 
 may be asked, to show that he was capable of forming an approxi- 
 mately accurate judgment of the rate of speed at which an automobile 
 was going, whether he has seen other machines going as fast as this 
 one and that this one was going "unusually fast."" 
 
 § 1692. Conclusions inadmissible. — Witnesses cannot be asked 
 questions which call for a conclusion as "what opportunity did he have 
 
 "^Stephen's Dig. Law of Ev. (Chase, 141, 2d ed.). 
 "Ill U. S. 618. 
 
 55See also i Greenleaf on Evidence, Sec. 440, and N. Y. Transp. Co. v. Gar- 
 side, 157 Fed. Repr. 523. See § 1693, "Witnesses cannot characterize speed." 
 67107 Md. 420, 68 Atl. Repr. 875. 
 "See to same eflect, Mr. Justice Strong, in Milwaukee, Etc., R. v. Kellogg, 94 
 
 U. S. 469, 472- 
 "Scragg V. Sallee, 24 Cal. App. i33, 140 Pac. 706. 
 
 IO.S9 
 
§ 1693 EVIDENCE 
 
 to get out of the way." "If he had looked what could he have done 
 to avoid injury." "Could you tell whether the automobile started up 
 from a full stop.""" 
 
 § 1693. Non-expert witnesses cannot characterize the speed. — 
 
 While it is permissible for the witness to describe the speed in such 
 language as will convey a correct impression of its rate, it is not proper 
 for him to characterise it (e. g. to say that it was "dangerous"), for 
 then he trenches upon the province of the jury. It is for that body 
 to say whether the speed was "dangerous" or not. It is merely the 
 province of the witness to give the jurors his impression of the actual 
 rate of speed, and theirs to conclude what was its character.'^ 
 In Kansas City, Etc., R. Co. v. Crocker,"'' it is said : 
 
 "Assistance in coming to a conclusion on such a question may 
 be derived from a statement that the object was going slowly, 
 or at a snail's pace, or no faster than a man walks, or faster than 
 a man could run. These opinions are admitted to enable the 
 jury to realize, as far as possible, the impression as to speed 
 made by the moving object on the mind of one who saw it. It 
 would be more satisfactory if the admissibility of such opinions 
 could be made to depend upon their conformity to some fixed 
 definite standard of clearness or accuracy in their formation and 
 expression. It is not practicable, however, to fix any such stand- 
 ard. The vagueness of the opinion would only go to the weight 
 of the testimony and not to its admissibility." 
 
 A witness may testify that a vehicle was running "fast." The fact 
 that such witness cannot say how fast or slow it was going should not 
 preclude him from testifying on the subject, but the weight of the evi- 
 dence is for the jury." 
 
 Witnesses who were regular travelers on a line of trolley cars, have 
 been allowed to speak of the speed of the vehicle as "very fast" and 
 "unusual.""* Also as "very fast" and "reckless.""' But testimony that an 
 
 8»I,evyn v. Koppin, 183 Mich. 232, 149 N. W. 993- 
 8iAlabama, Etc., R. Co. v. Hall, 105 Ala. 606, 17 So. 176. 
 8295 Ala. 423, II So. 262. 
 
 ''Illinois C. R. v. Ashline, 171 111. 313, 317, 49 N. E. 521. 
 '^Johnson v. Oakland St. Ry., 127 Cal. 611, 60 Pac. 170. 
 
 ssGalveston, Etc., R. v. Wesch, 21 S. W. Repr. 63 (Tex. Sup. 1893) ; King v. 
 Green, 94 Pac. Repr. 777, 778 (Cal. Sup. 1908). 
 
 1060 ) 
 
OPINIONS OF NON-EXPERTS § 1694 
 
 automobile is running at great speed is too indefinite and vague to show 
 negligence."* 
 
 Witnesses may not give their opinions as to whether the speed of the 
 automobile was unreasonable. This is for the jury to say. Witnesses 
 cannot be so substituted for the jury." 
 
 § 1694. Plaintiff may give opinion.— Even the plaintifiE who is 
 hit by an automobile and knocked down and who watches it go away 
 is entitled to give his opinion though not an expert as to the speed of 
 the automobile.'"^ 
 
 § 1695. Opinion incompetent if based on hearsay.— The opinion 
 of a police officer based on inquiries made at the time as to whether the 
 defendant was driving in violation of law is not admissible as part of 
 the res gestce."^ 
 
 § 1696. Opinion of speed based on comparison. — Evidence of wit- 
 ness that the defendant's automobile was running about as fast as they 
 always go, or as fast as trains run by his house is insufficient especially 
 where he says he does not know how fast the trains run.'" 
 
 § 1697. Opinion based on speed of exhaust. — It is incompetent 
 for one to tell the speed of an automobile from the speed of the engine 
 as indicated by the exhaust as it is well-known that the clutch may be 
 disengaged and the speed of the engine is no sign of the speed of the 
 car.'^ 
 
 § 1698. Opinion as to room to pass. — Witnesses cannot be asked 
 whether there was room for the driver of the automobile to pass the 
 plaintiff's wagon where he tried to do so as these questions called for 
 mere opinions the answer to which invaded the province of the jury.''^ 
 
 § 1699. Speed. — "All statements," says Moore in his work on 
 Facts, Sec. 42a, "concerning the speed of a train or other object, except 
 where the witness observed the time actually occupied in traversing 
 a known space, are necessarily expressions of opinion and therefore 
 
 «8Presser v. Dougherty, 239 Pa. 312, 86 Atl. 854. 
 
 B'Colebank v. Standard Garage Co., 75 W. Va. 389, 84 S. E. 1051. 
 
 68Shimoda Bundy, 24 Cal. App. 675, 142 Pac. 109, 9 N. C. C. A. 834. 
 
 «9Torgeson V. Hanford, 79 Wash. 56, 139 Pac. 648. 
 
 ''oFowkes V. Case Threshing Mach. Co., Utah 1915, 151 Pac. S3- 
 
 "Harnau v. Haight, Mich. 1916, 155 N. W. 563. 
 
 T^Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527. 
 
 1061 
 
§ 1^99 -■■ EVIDENCE 
 
 subject to the infirmities that attach to all opinion evidence." In 
 Omaha St. Ry. Co. v. Larson^« the court, by Mr. Justice Oldham, quote 
 Detroit R. Co. v. Van Steinburg,'* Cooley, C. J., {supra), and say: 
 
 "We think that a witness who sees a moving car and possesses 
 a knowledge of time and distance, is competent to express an 
 opinion as to the rate at which the car is moving." 
 
 Testimony of this character should be as explicit as the circumstances 
 will admit, concerning the real distance or rate of speed, for, as the 
 court in Grand Rapids R. v. Huntly," remark : 
 
 "The well-known liability of all common observers to be de- 
 ceived as to the rate of speed of heavy trains, renders it neces- 
 sary to guard as far as possible against vague testimony, which 
 cannot be directly met or corroborated by the proof of persons 
 having actual knowledge on the subject." 
 
 In Schmidt v. North Jersey Ry.^" the Supreme Court say : 
 
 "The plaintiff's belief that the car did go faster is easily un- 
 derstood by any one who has ever tried to board a moving car 
 propelled by electricity." 
 
 In Gangawer v. Phila., Etc., R. R.,'' the deceased is shown to have 
 met his death by miscalculating the comparative speed of a railroad 
 train and that of the horses he was driving.''* 
 
 The same uncertainty is true as to estimates of distance; they are 
 generally more or less haphazard and frequently degenerate into mere 
 conjecture.'"' Opinions of speed, distance, time and the like, to be 
 competent must be founded on something of a definite character. Mere 
 guess work is insufficient to render them competent to support a verdict 
 as matter of law.'" "The witness should show that he has some knowl- 
 
 ■^370 Neb. spi, S9S, 97 N. 'W. 924. 
 T*i7 Mich. 99, 1878. 
 '538 Mich. S40, 1880. 
 ^849 Atl. Repr. 440 (N. J. 1903). 
 ■^7168 Pa. St. 26s, 32 Atl. 21. 
 
 T^See also Huntress v. Railroad, 66 N. H. 190, 34 Atl. 154. 
 ^'Setterstrom v. Brainerd, Etc., R,, 89 Minn. 262, 94 N. W. 884; Zolpher v. 
 Camden, Etc., R., 55 Atl. 249 (N. J. 1905). 
 8»Yingst V. Lebanon R., 167 Pa. St. 438, 31 Atl. 687. 
 
 1062 
 
OPINIONS OF NON-EXPERTS § 1699 
 
 edge, some familiarity with the subject about which he is called on to 
 give an opinion, before he is permitted to testify to that opinion." He 
 must be shown to have had an opportunity of observation of the case in 
 hand, and to have availed himself of it,«^ and he should have some 
 knowledge of time and distance.*^ It is not necessary that one know 
 how many feet or rods there are in a mile. "It is a mere matter of 
 opinion how many miles an hour a train is running, with the best of wit- 
 nesses. It is not a matter of expert evidence or science." Ward v. 
 Chicago, Etc., R., 85 Wis. 601. The witness should also state all the 
 facts on which his conclusion is based.** When a witness disclaims 
 ability to form an opinion as to speed "he should not be told that he may 
 guess for an answer."^^ 
 
 It is the general rule that the speed of automobiles is so much a matter 
 of common knowledge that any intelligent person who had a fair view 
 of an automobile in motion can testify as to its speed.*^ Transportation 
 by automobile is a matter of common knowledge and it does not require 
 the knowledge of an expert to determine whether an automobile is mov- 
 ing at a usual or an unusual rate of speed. Any person of ordinary 
 understanding is competent to speak on that question.^' "The experi- 
 ence of non-expert witnesses will enable them to form a reasonably 
 accurate judgment as to the speed of a passing machine, and nothing be- 
 yond that is expected or should be required."'^ An adult who has rid- 
 
 81 Ala., Etc., R. V. Hall, 105 Ala. 599, 17 So. 176 ; Muth v. St. Louis, Etc., Ry., 
 87 Mo. App. 434; McFern v. Gardner, j2i Mo. App. I, 97 S. W. 972. 
 
 82Mathieson v. Omaha St. Ry., 3 Neb. (unofficial) 747, 92 N. W. 639; Sears 
 V. Seattle, Etc., Ry., 6 Wash. 227, 33 Pac. 389 1 i Moore on Facts, Chap. VI. 
 
 saOmaha St. Ry. v. Larson, 70 Neb. 595, 97 N. W. 824. 
 
 8*Union Pac. R. v. Ruzicka, 65 Neb. 621, 91 N. W. 543. 
 
 ssMcCreery v. United Rys. Co., 221 Mo. 18, 120 S. W. 24. See the following 
 motor vehicle cases: Wright v. Crane, 142 Mich. 508, 106 N. W. 71; McFern 
 V. Gardner, 121 Mo. App. i, 7, 97 S. W. 972; State v. Watson, 216 Mo. 420, 115 
 S. W. ion; Matla v. Rapid Motor Vehicle Co., 160 Mich. 639, 12S N. W. 708. 
 "^"Cedar Creek Store Co. v. Steadham, 187 Ala. 622, 65 So. 984; Fisher Motor 
 Car Co. V. Seymour, 9 Ga. App. 493, 7i S. E 764; Miller v. Jenness, 84 Kan. 
 608 114 Pac. 1052, 34 L. R. A. N. S. 782; State v. Watson, 216 Mo. 420, 115 S. W. 
 loii; Shaffer v. Coleman, 3S Pa. Super. Ct. 386; Porter v. Buckley, 147 Fed. 
 
 140. 
 ssBowen v. State, 100 Ark. 232, 140 S. W. 28. 
 ssDugan v. Arthurs, 230 Pa. St. 299, 79 Atl. 626, 34 L- R. A. N. S. 778. 
 
 1063 
 
§ I700 EVIDENCE 
 
 den in automobiles and observed the car in question may state his esti- 
 mate of its speed. ^'' 
 
 Any intelligent person accustomed to observing moving objects can 
 testify to his opinion of their speed and this rule applies to automo- 
 biles.'^ An adult may testify how fast an automobile was going which 
 he saw, though he had never before attempted to determine the speed of 
 an automobile by watching it pass and was unable to state positively 
 how fast it was going.'^ 
 
 Qne who has some opportunity though slight of observing the speed 
 of an automobile can give an opinion of its speed. The fact that his 
 opportunity of observation was slight may be considered in weighing 
 his testimony. He need not be an expert."^ 
 
 But one who says that an automobile was approaching in the dark 
 without headlights so noiselessly that she did not know it until it was 
 within twenty feet of her is incompetent to tell its speed where her 
 opinion seems to have been based on the fact that it was making no 
 noise." 
 
 § 17CX). Belief of witness as to facts. — A witness may say he did 
 not think an automobile struck a horse — this is not an opinion or con- 
 clusion but a statement of fact.'^ 
 
 § 1 701. Testimony of passengers. — ^The testimony of passengers 
 who were riding in the vehicle, is competent and its weight is to be 
 tested by their experience in that or similar vehicles on other occa- 
 sions.°° 
 
 9» American Motor Car Co. v. Robbins, 181 Ind. 417, 103 N. E. 641, 8 N. C. C. 
 A. 372. 
 
 oiShimoda v. Bundy, 24 Cal. App. 675, 142 Pac. 109, 9 N. C. C. A. 834- 
 
 92Daly V. Curry, 128 Minn. 449, 151 N. W. 274. 
 
 ssRump V. Woods, 50 Ind. App. 347, 98 N. E. 369. 
 
 »*Wright V. Crane, 142 Mich. 508, 106 N. W. 71, noise, see further ante, § 1637. 
 
 osZellraer v. McTaigue, 170 Iowa 534, 153 N. W. 77. 
 
 »6johnson v. Oakland, Etc., Ry., 127 Cal. 609, 60 Pac. 170; Alabama, Etc., R. 
 Co. V. Hall, los Ala. 606, 7 So. 176; Grand Rapids, Etc., R. Co. v. Huntley, 38 
 Mich. 540; Galveston, Etc., R. Co. v. Wesch, 21 S. W. Repr. 63, Tex. Sup. 1893; 
 I Moore on Facts, Sec. 444. 
 
 1064 
 
OPINIONS OF non-Experts § 1702 
 
 In Chicago, B. & Q. R. v. Clark" the Supreme Court, speaking 
 through Chief Justice Reese, say : 
 
 "Upon the trial defendant in error called a number of wit- 
 nesses for the purpose of proving approximately the rate of 
 speed at which the train was running at the time of the injury. 
 Some of the witnesses so called were riding upon the train; 
 others were not. None of them were experts in running trains. 
 It is insisted that they were incompetent to testify and that their 
 evidence should not have been received. To this we cannot 
 agree. The rate of speed at which a train is running is largely 
 a matter of judgment from observation. While a person with 
 an educated judgment upon that matter would be perhaps a more 
 satisfactory witness than one uneducated, yet we know of no 
 rule which wOuld prohibit the uneducated person from testifying 
 as to his judgment in the matter. The question is more as to 
 the quality^^ of the testimony than as to its competency ; and this 
 matter was properly left to the jury for their consideration."^' 
 
 § 1702. Neighbors may testify. — There is no objection to the testi- 
 mony of persons who were in the neighborhood as to what was said 
 or done by the parties at the time of the occurrence.^"" 
 
 The fact that persons in a neighboring house heard the crash of the 
 collision would indicate that the defendant was driving fast when he 
 ran into a slow-moving hack.^ 
 
 § 1703. Non-expert opinion whether operator careful. — Where 
 the defendant has an artificial leg non-expert witnesses may be asked 
 the manner in which he operated the machine within a reasonable time 
 before and after the accident but they cannot state that he was "care- 
 ful" or otherwise.^ 
 
 Where a physician testified on direct examination that in his opin- 
 ion it was not safe for a man with an artificial leg to operate an auto- 
 mobile he may be asked on cross-examination whether the fact that he 
 had operated the automobile successfully for long distances would alter 
 his opinion.^ 
 
 8726 Neb. 64s, 42 N. W. 703- 
 »8The italics are by the court. 
 
 9"See also Christy v. Elliott, 216 111. 31, 74 N. E. 103S, 108 Am. St. Rep. 196. 
 i""Walkup "v. Beebe, 139 Iowa 39S, "6 N. W. Repr. 321, 322. 
 iRussell V. Electric Garage Co., 90 Neb. 719, i34 N. W. 253. 
 20'Hare v. Gloag, 221 Mass. 24; 108 N. E. 566. 
 BQ'Hare v. Gloag, 221 Mass. 24; 108 N. E. 566- 
 
 1065 
 
§ 1704 EVIDENCE 
 
 § 1704. Province of court. — The precise line between the compe- 
 tency and incompetency of non-expert opinion evidence, is difficult of 
 exact statement, so it is for the trial judge to pass upon its admissibility 
 at the time it is offered.* 
 
 In Nunes v. Perry,= it is said : 
 
 "The qualifications of a witness to testify * * * are ques- 
 tions which are to be passed upon in the first instance by the 
 court, before submitting the evidence to the jury. They involve 
 so much of the element of fact that great consideration must 
 necessarily be given to the decision of the judge at the trial. In 
 all questions of this nature the ruling at the trial will be sus- 
 tained, unless it is made clearly to appear that it was based upon 
 some erroneous views of legal principles or that the ruling was 
 not justified by the state of the evidence as presented to the judge 
 at the time." 
 
 In Com. V. Sturtivant" the whole subject is luminously stated by Mr. 
 Justice Endicott, whose opinion, though long, is as follows on this 
 point : 
 
 "Every person is competent to express an opinion on a ques- 
 tion of identity as applied to persons, things, animals or hand- 
 writing, and may give his judgment in regard to the size, color, 
 weight of objects, and may estimate time and distances. He 
 may state his opinion in regard to sounds, their character, from 
 what they proceed, and the direction from which they seem to 
 come. * * * The correspondence between boots and foot- 
 prints is a matter requiring no peculiar knowledge, and to which 
 any person can testify. * * * So a person not an expert may 
 give his opinion whether certain hairs are human hairs, * * * 
 and a witness may state what he understood by certain 'expres- 
 sions, gestures and intonations,' and to whom they were applied ; 
 otherwise the jury could not fully understand their meaning. 
 * * * 
 
 "In this connection may be noticed a large class of cases, where, 
 from certain appearances more or less difficult to describe in 
 words, witnesses have been permitted to state their conclusions 
 in relation to indications of disease or health, and the condition 
 or qualities of animals or persons. As, when a witness testifies 
 
 *Paterson v. Chicago, M. & St. Paul R., 95 Minn. 57, 33 N. W. 228. 
 "113 Mass. 276. 
 '•117 Mass. 122, 133. 
 
 1066 
 
jpiNioNS OF non-exph;rts § 1704 
 
 that a horse's foot appeared to be diseased, he states a matter 
 of fact open to the observation of common men, * * * and it 
 is proper for a witness to give his opinion that a horse appeared 
 to be sulky and not frightened at the time of an accident ; * * * 
 
 or he may testify as to the quaUties and appearance of a horse. 
 
 * * * 
 
 "It is said that the question whether there was hard pan in 
 an excavation does not ask for an opinion, but seeks for facts 
 within the knowledge of the witness, and of which the knowl- 
 edge may be obtained by common observation. It is competent 
 for a witness to testify to the condition of health of a person, 
 and that he is ill or disabled, or has a fever, or is destitute and 
 in need of relief; * * * And one may testify that another 
 acted as if she felt very sad. * * * So those who have ob- 
 served the relations and conduct of two persons to each other 
 may testify whether in their opinion, one was attached to the 
 other. And in McKee v. Nelson, 4 Cowen 355, the court say: 
 'The opinion of witnesses on this subject must be derived from a 
 series of instances passing under their observation, which yet 
 they never could detail to a jury. * * * A witness may also 
 give his judgment whether a person was intoxicated at a given 
 time; People v. Eastwood,^ 4 Kernan 562; or whether he no- 
 ticed any change in the intelligence or understanding, or any 
 want of coherence in the remarks of another, * * * 
 
 "In Steamboat Clipper v. Logan, 18 Ohio 375, it was held 
 that a person who had been captain and engineer of a steam- 
 boat, having examined a boat after injury by collision, may 
 state his opinion as to the direction from which the boat was 
 struck at the time of the collision. There was no evidence that 
 the witness had any special knowledge in regard to collisions 
 through observation or experiment ; and the court does not rest 
 the decision on the ground that the witness was an expert, but 
 says there is 'no objection to calling these men experts if the 
 name will render their testimony more unexceptionable; but it 
 is not true as a legal proposition that no one but an expert can 
 give an opinion to a jury. From the necessity of the case, testi- 
 mony must occasionally be a compound of fact and opinion. 
 
 * * * 
 
 "Where immediately after the collision of two boats, a person 
 looked at their condition, he was permitted to testify to the im- 
 pression made upon his mind as to the position in which they 
 came together * * * 
 
 " 'It would seem to be within the knowledge of men in general, 
 when looking at the effects of a blow upon a solid body, to de- 
 
 TSee also §§ I374-I376. 
 
 1067 
 
§ 1704 SVID^NCE 
 
 termine from the external marks and indications if any exist, 
 the direction from which it came. In the great majority of 
 cases, these indications are distinct and plain, and to observe 
 them is within the constant experience of men. * * * 
 
 " 'Suppose the panel of a carriage door is broken in by col- 
 lision, different appearances would follow from a horizontal 
 blow delivered at right angles, than from a blow from the front 
 or rear, from above or below. Such appearances the common 
 observer can detect, some more accurately and clearly than 
 Qthers, but it is presumed to be within the power of all, and 
 the opinion of an expert, who has experimented by blows on 
 similar surfaces and is learned in the law of forces is not nec- 
 essary or required. If the panel itself is introduced to the jury, 
 they are competent and able to decide the question. If it can- 
 not be, the witness who saw it may describe as well as he can, 
 what he saw and state the conclusion he formed at the time. 
 
 " 'It would also seem to be within the range of common knowl- 
 edge to observe and understand those appearances in marks or 
 stains by blood or other fluids, which indicate the direction from 
 which they came if impelled by force.' (The opinion refers il- 
 lustratively to the flow of water, and to the marks left by water 
 when dashed as from a bucket, and continues.) 'These may 
 not all be easily described in words, but may convey a distinct 
 and decided impression to the mind of the time. * * * 
 
 "There is no question of science or learning necessarily in- 
 volved in the understanding of these indications, if visible they 
 are easily understood. The only question is, were the common 
 indications visible from which direction may be inferred? It 
 may be difficult in a given case to distinguish them without the 
 most careful observation, but if seen by the witness, they may 
 be testified to. It may also be more difficult to detect them on 
 an upright surface, but that goes to the degree or weight of the 
 evidence, not to its competency. * * * 
 
 "The competency of this evidence rests upon two necessary 
 conditions: first, that the subject matter to which the tesimony 
 relates cannot be reproduced or described to the jury precisely as 
 it appeared to the witness at the time ; and second that the facts 
 upon which the witness is called to express his opinion, are such 
 as men in general are capable of comprehending and understand- 
 ing. 
 
 "When these conditions have been complied with or fulfilled 
 in a given case, the court must pass upon the question whether 
 the witness had the opportunity and means of inquiry, and was 
 careful and intelligent in his observation and examination. It 
 is not the mere qualification of the witness but the extent and 
 thoroughness of his examination into the specific facts to which 
 
 1068 
 
OPINIONS OP NON-EXPERTS § 1 704 
 
 the inquiry relates, and the general character of those facts, as 
 affording to one having his opportunity to judge, the requisite 
 means to form an opinion. 
 
 " 'The same rule applies to this class of testimony as to the 
 testimony of experts, whether the expert is competent by his 
 study or business and whether he has qualified himself to tes- 
 tify, or had proper opportunity to examine, are preliminary 
 questions for the court. * * * In all these cases the element of 
 fact is involved to be decided by the court upon which the ca- 
 pacity to testify depends. And the decision at the trial, like all 
 decisions of this character, is final and conclusive, unless upon a 
 report of all the evidence it is shown to be without foundation, 
 or is based on some erroneous application of legal principles.' '" 
 
 "Porter v. Buckley,^ was an automobile accident case, heard in the 
 United States Circuit Court of Appeals from the District of New 
 Jersey. The exceptions presented numerous questions concerning the 
 admissibility of evidence, some of which are of general value. The 
 facts were that the plaintiff's horse became frightened at the defend- 
 ant's automobile, as the result of which she was thrown from the car- 
 riage and injured. The charge was that the accident was caused by 
 the reckless management of the defendant in operating the automobile, 
 the verdict being for the plaintiflf. It was contended on the appeal, 
 that the trial court erred in admitting the testimony of one of the wit- 
 nesses relating to the speed of the automobile, the question itself being : 
 "About how fast was this automobile going as near as you can tell?" 
 It was claimed that this called for an expert opinion by a witness not 
 qualified to give it. In overruling the objection in the Appellate court, 
 Judge Lanning instances the case of a railroad train, and says : 
 
 " 'In Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 
 Mich. 104, Chief Justice Cooley said, 'The motion of the train 
 was to be compared to the motion of any other moving thing 
 with a view to obtaining the judgment of the witness as to its 
 velocity. No question of science was involved beyond what 
 would have been had the passing object been a man or a horse. 
 It was not, therefore, a question for experts. Any intelligent 
 
 8See also Milwaukee, Etc., R. v. Kellogg, 94 U. S. 469, 472; Beverley v. Bos- 
 ton El. Ry., 194 Mass. 457, 80 N. E. 507, follows the rule laid down in Com. v. 
 Sturtivant, 117 Mass. 122. Both Com. v. Sturtivant, and People v. Eastwood, 
 4 Kernan 562, are cited on the subject of intoxication, § 473. 
 
 '147 Fed. Repr. 140 (N. J.). 
 
 1069 
 
§ 1704 EVIDENCE 
 
 man, who had been accustomed to observe moving objects, would 
 be able to express an opinion of some value upon it the first time 
 he saw a train in motion. The opinion might not be so accurate 
 and reliable as that of one who had been accustomed to observe, 
 with timepiece in hand, the motion of an object of such size 
 and momentum, but this would only go to the weight of the 
 testimony and not to its admissibility. Any man possessing a 
 knowledge of time and of distances would be competent to ex- 
 press an opinion upon the subject. 
 
 "Rogers on Expert Testimony (2 Ed.), p. 244, says: 'Ques- 
 tions as to the speed with which trains were moving are not 
 strictly speaking, scientific inquiries, but any man possessing a 
 knowledge of time and distances is usually competent to express 
 an opinion on that subject.' 
 
 "Lawson on Expert and Opinion Evidence (2 Ed.), p. 505, 
 gives the following rule: 'The opinions of ordinary witnesses 
 derived from observation are admissible in evidence when, from 
 the nature of the subject under investigation no better evidence 
 can be obtained, or the facts cannot otherwise be presented to 
 the tribunal, e. g. questions relating to time, quantity, number, 
 dimensions, height, speed, distance or the like.' The same rule 
 is given in 6 Thomp. Neg., Sec. 7754, and in other authorities 
 that might be cited. Applying to the case in hand this rule 
 which we think is supported by the best authorities, we find 
 that Mrs. Thomas" (the witness) "testified that she had wit- 
 nessed horse races and on several occasions had timed express 
 trains, * * * that she had never seen anything go as fast 
 on the public highway as the defendant's automobile, and that 
 she should judge it was going 'at the rate of 40 or 50 miles an 
 hour as the express goes through the town.' It thus appears 
 that if it was necessary that her opinion concerning the speed 
 of the automobile should be authenticated by proof that she had 
 previously observed the speed of moving objects, that proof 
 was furnished. The weight of her opinion was a question 
 wholly for the jury."" 
 loSee also Kansas City, Etc., R. v. Crocker, 95 Ala. 412. 11 So. 262; Railroad 
 Co V. Hunter, 6 App. Cas. 308 (D. C); Chicago, Etc., v. Gunderson, 174 I"- 
 40S SI N E 708; Potter v. O'Donnell, 199 HI. ii9. 64 N. E. 1026; Louisville, 
 Etc Ry. V. Jones, 108 Ind. 556, 9 N. E. 476; Robinson v. Louisville Ry. Co., 112 
 Fed! Repr. 487, Ky.; Mertz v. Detroit El. Ry., 12S Mich. 11, 83 N. W. 1036; 
 Omaha St. Ry. v. Larson, 70 Neb. Spi, 97 N. W. 824; Fisher v. Union Ry. Co., 
 86 N Y App. Div. 366, 83 N. Y. S. 694; McFern v. Gardner, 121 Mo. App i, 
 07 S W 972; New York Transp. Co. v. Garside, IS7 Fed. Repr. 521, 85 C. C. A. 
 Ss;' Shaffer v. Coleman, 35 Pa. Super. Ct. 386; Hough v. St. L°"'s Car Co 
 146 Mo App. S8, 123 S. W. Repr. 83; Wolfe v. Ives, 83 Conn. 174, 76 A« R«pr. 
 $>. See remarks of the court in State v. Watson, 216 Mo. 420, ns S. W. ion. 
 
 1070 
 
WITNESSES § 1705 
 
 X. WlTNESSBS 
 
 § 1705. "Competent witness." 
 
 1706. Capacity to testify is a question for the court. 
 
 1707. Children as witnesses. 
 
 1708. Bias. 
 
 1709. Physician. 
 
 1710. Privilege of physicians. 
 
 1711. Cross-examination. 
 
 § 1705. "Competent witness."— The rule is that "all persons are 
 competent to testify in all cases."" 
 
 The exceptions to this rule vary in the different states, being created 
 by particular statutes. The statute of Massachusetts qualifies the gen- 
 eral rule as follows: (i) One who is not of sufficient understanding 
 is incompetent to be a witness ; (2) A husband or wife cannot testify 
 to private conversations with each other, nor can either be compelled 
 to testify against the other in any criminal proceeding. (3) A de- 
 fendant in a criminal proceeding may testify if he desires to do so, 
 but his "neglect or refusal to testify shall not create any presumption 
 against him." The disbelief by a person in any special form of reli- 
 gious faith or in "any religion," does not disqualify, but a "disbelief in 
 the existence of God may be received to afiFect his credibility as a wit- 
 ness." 
 
 The conviction of a witness of a crime, may be shown to affect his 
 credibility.^^ 
 
 It is proper to instruct the jury that in considering the veracity of 
 testimony they may consider the manner and conduct, interest, bias or 
 prejudice and the knowledge, or lack of it, of witnesses.^' 
 
 § 1706. Capacity to testify is a question for the court. — ^Whether 
 a witness who is called upon to testify, "has the requisite qualifications 
 and knowledge to enable him to testify, is a preliminary question for 
 the court. The decision of this question is conclusive, unless it appears 
 upon the evidence, to have been erroneous, or to have been founded 
 upon some error in law."^* 
 
 "Stephen's Dig. Law of Ev. (Chase, 2d ed.), p. 270. 
 i2Mass. Revised Laws, Chap. 17s, Sees. 19, 20, 21. See ante, § 1630. 
 i^Fox V. Barekman, 178 Ind. 572, 99 N. E. 989- 
 
 "Perkins v. Stickney, 132 Mass. 218; Paterson v. Chicago, M. & St. P. R., 95 
 Minn. 57, 58, 103 N. W. 621. 
 
 1071 
 
§ 1707 EVIDENCE 
 
 § 1707. Children as witnesses. — In Com. v. Hutchins,^^ a child of 
 nine years was offered as a witness and was objected to on the ground 
 of his youth. The report of the case is as follows : 
 
 "The court put sundry questions to him, in order to ascertain 
 the measure of his understanding and moral sense, to most of 
 which he gave rational and pertinent answers. The court then 
 observed that the ancient rule of the common law was that no 
 witness should be sworn who was under nine years of age, but by 
 later opinions and the settled law at present, if an infant appear, 
 on examination by the court, to possess a sufficient sense of the 
 wickedness and danger of false swearing, he may be sworn 
 although of never so tender an age. The credit of the witness 
 which is greatly impaired by his age, is to be judged of by the 
 jury from his manner of testifying and other circumstances." 
 See also footnote to the report. 
 
 A child may, in the discretion of the court, be examined by "lead- 
 ing questions" when its attention can be called to the matter required, 
 only by questions pointedly put or put in that form.^° 
 
 § 1708. Bias. — "A witness may be said to be biased when his re- 
 lation to the cause or to the parties is such that he has an incentive to 
 exaggerate or give false color to his statements, or to suppress or pre- 
 vent the truth, or to state what is false. Bias is that which excites a 
 disposition to see and report matters as they are wished for rather than 
 as they are."^^ Until rather more than a century ago a witness was 
 held to be disqualified by reason of interest, but by statute and judicial 
 decision the rule has now become practically obsolete.^' The modern 
 practice on this subject is stated by Dr. Lushington in Lockwood v. 
 Lockwood,^^ who cites Sir John Nicholl, whom he describes as "very 
 high authority," and says : "In matters of opinion, such a witness was 
 to be distrusted, in matters of fact, to be credited."^'' An imputation of 
 bias is no reflection on integrity so long as the imputation of perjury is 
 absent. Such is human nature that "it is everywhere agreed that the 
 
 1610 Mass. 224. 
 
 "Moody V. Rowell, 34 Mass. 408; Gross v. Foster, 134 N. Y. App. Div. 243, 
 
 118 N. Y. S. 889. 
 I'Moore on Facts, Sec. 1091. 
 isGreenleaf on Evidence, isth ed., Sec. 328. 
 i»2 Curt. Feci. 289. 
 ""Moore on Facts, Sec. 1092. 
 
 1072 
 
WITNESSES § 1708 
 
 influence of bias commonly affects testimony without making the wit- 
 ness conscious of its operation."" Evidence of a statement of a witness 
 showmg bias should be received though it also contradicts a statement of 
 the witness relating to a collateral issue or fact.^^ 
 
 The court comments on the psychological fact that persons aboard 
 an automobile, like those aboard a ship, are controlled by a bias in 
 favor of the vehicle in which they are riding. =' 
 
 Exaggeration is the most common vice of biased witnesses, either 
 in enlarging or diminishing those things which make for or against 
 their interest or proclivities. The memory of a biased witness is apt to 
 be extraordinarily vivid or treacherous, accordingly as the facts sought 
 to be elicited are, in his judgment, favorable or unfavorable to his view 
 point. The witness's powers of observation as to occurrences are usually 
 found to have been exerted to the utmost concerning favorable circum- 
 stances, but those of other character frequently appear to have escaped 
 him. Prejudices and proclivities, hostilities, antagonisms or attachments 
 of witnesses for or against systems, schemes and ideas (frequently 
 appearing in motor vehicle cases), are a fruitful source of bias which 
 often unconsciously impair candor of statement. 
 
 Witnesses who are "volunteers," or who are "forward" or "swift," 
 eagerly striving to give their testimony favorable to one view of the 
 case, "do not command much respect." 
 
 An unwilling or entirely disinterested witness is of course, to have 
 the greatest weight given to his statements, and when his testimony is 
 in conflict with that of persons interested, it should be received with a 
 higher degree of credence.^* 
 
 The interest which a defendant or witness has, whether it be of life, 
 liberty, property, business or enjoyment, and also the interest begotten 
 by friendship, should be taken 'into careful consideration by the jury 
 or trial court, and proper allowances made. In all such cases, where- 
 ever possible, such testimony should be tested by evidence furnished 
 by independent circumstances and extraneous facts.^^ In Ridge v. 
 Pennsylvania R.,^' Vice-Chancellor Reed says, "the force of the testi- 
 
 2iMoore on Facts, Sec. 109S. 
 
 22McFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 652, 143 S. W. 884. 
 
 23SchuItz V. State, 89 Neb. 34, 130 N. W. 972. 
 
 2*Moore on Facts, Sees. 1096 to 1124. 
 
 2'Moore on Facts, Sec. 471. 
 
 2<'58 N. J. Eq. 172, 43 AtL Repr. 277. 
 
 1073 
 68 
 
§ 1709 EVIDENCE 
 
 mony on both sides must be discounted by the feeHngs of the witness," 
 and thereupon he proceeds to test the evidence by other facts and cir- 
 cumstances in the case. So also in case a witness has actually received 
 money consideration or promise, for his testimony.^^ 
 
 § 1709. Physician. — When a physician examines a patient shortly 
 after an accident he may testify to what he found and may also give 
 his opinion as to the probable future condition of the patient.^' 
 
 § 1710. Privilege of physicians. — Confidential communications be- 
 tween physician and patient are privileged and the physician ordinarily 
 will not be allowed to testify concerning them without the consent of 
 the patient. This rule came before the New York Supreme Court in 
 the case of Seaman v. Mott.^' The plaintiff in that case called his 
 physician to prove his physical condition at the time of the accident, 
 and the testimony was admitted. On cross-exanmuition the defend- 
 ant sought to bring out certain matters relating to "professional treat- 
 ment prior to the accident." The court excluded this latter testimony 
 on the ground of professional privilege. The Appellate Division held 
 that the exclusion by the trial judge was error. Mr. Justice Jenks, who 
 wrote the opinion, says that : 
 
 "When the patient called the physician to give evidence as to 
 the injury, pain and suffering, attributed to this accident, the 
 patient could not exclude as privileged the questions by the de- 
 fendant as to professional treatment prior to the accident, for 
 such questions may have shown the prior existence of such 
 physical conditions at least to a degree. The principle of privi- 
 lege is not intended, as the courts have said, to be both the sword 
 and a shield for the patient." 
 
 § 171 1. Cross-examination. — For present purposes, reference to 
 the case of Quigley v. Thompson,'" will be sufficient. In that case 
 plaintiff called the chauffeur as his own witness, who, on cross-ex- 
 amination, admitted (under objection) that he was operating the ma- 
 chine for his "own personal use on an errand for my (him) self," that 
 defendant did not know anything about it, and that in taking the car 
 
 2'Routledge v. Rambler, Etc., Co., Tex. Civ. App. 1906, 95 S. W. Repr. 749. 
 28Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. 
 29127 N. Y. App. 18, no N. Y. Supp. 1040. 
 s»2ii Pa. St. 107, 109, 60 Atl. S06. 
 
 1074 
 
WITNESSES § 171 1 
 
 he broke one of defendant's rules. Justice Fell, speaking for the 
 court, said : 
 
 "The only question to be considered is whether the foregoing 
 was proper to be admitted in cross-examination, being in the 
 nature of matter in defence and not covered by the examination 
 in chief, and no to be considered by the court on compulsory 
 nonsuit" * * * While the general principles applicable to 
 the subject are clearly defined, it is in practice often difficult 
 to determine the exact limits of proper cross-examination. Its 
 range must of necessity rest largely in the discretion of the trial 
 judge. Cross-examination must be confined to matters stated 
 in the examination in chief, and independent matters of defence 
 must not be introduced by it. Where matters of defence have 
 been brought out by an improper cross-examination they should 
 be considered as having been introduced by the defendant, and 
 they cannot be considered by the court as ground for a com- 
 pulsory nonsuit." (Citing cases.) "But an incident of a trans- 
 action proved, and circumstances connected with it which quali- 
 fy or destroy the efifect of the testimony in chief, may be brought 
 out in cross-examination." (Citing cases.) "In Bank v. For- 
 dyce, 9 Pa. 275, it was said by Gibson, C. J. : 'A party is entitled 
 to bring out any circumstances relating to a fact which an ad- 
 verse witness is called to prove.' " 
 
 An automobile driver cannot be asked whether he would have driven 
 at a high or dangerous rate of speed with young ladies in the car. The 
 question as to what he would have done is irrelevant." 
 
 The plaintiff's right to examine the defendant before trial may be 
 limited to the question whether the defendant was operating the auto- 
 mobile, or whether he occupied any relation to the driver.'^ 
 
 It is improper on cross-examination to ask whether witness had 
 "borrowed" an automobile as this is a mere opinion of a witness as to 
 how he came to be usmg it. He should be asked only as to the facts.'' 
 
 siMcCown V. Muldrow, 91 S. C. 523, 74 S. E. 386, Ann. Cas. 1914 A. I39- 
 szBrichta v. Simon, 152 App. Div. 832, 137 N. Y. S. 7Si- 
 ssRiley V. Fisher, Tex. Civ. App. 1912, 146 S. W. 581. 
 
 1075 
 
CHAPTER LIV 
 
 DAMAGES 
 
 I. In Gbneeai, 
 
 § 1712. Scope of chapter. 
 
 1 713. Damages defined. 
 
 1714. Intent and motive in actions of tort affecting damages. 
 
 1715. Damages must be reasonable. 
 
 1716. Classification of damages into "liquidated" and "unliquidated." 
 
 171 7. Division of the subject. 
 
 1718. Compensatory damages. 
 
 1719. "Elements" of compensatory damages. 
 
 1720. In suit by married woman. 
 
 § 1712. Scope of chapter. — In current phrase, "damages are the 
 gist of the action." In suits growing out of personal injuries the re- 
 sult of negligence, they are the sole purpose of the litigation. 
 
 Owing to the tremendous development of motive power as a means 
 of locomotion, in the last fifty years, so-called "damage cases" have 
 multiplied enormously, and rules governing the measure thereof have 
 become one of the most important features of jurisprudence. It would 
 be beyond the scope of this book to attempt anything more than an out- 
 line of those features of the general law of damages especially appli- 
 cable to suits resulting from motor vehicle operation. In order to ac- 
 complish this in the briefest possible way, resort will principally be had 
 to the text of well known writers on the subject. No effort will be 
 made to present subtleties nor to consider inharmonious views in differ- 
 ent jurisdictions." 
 
 § 1713. Damages defined. — "Damages, as used in connection with 
 injuries resulting from negligence, means compensation or recompense 
 to the injured person by the payment- of such a sum of money as will 
 
 ^Prejudice of jurors against automobilist as affecting damages, see ante, § 1582. 
 
 ^Note. — The rules regarding the measure of damages considered in this chap- 
 ter are especially those applicable to "accident cases." In other chapters the 
 rules applicable to particular subjects are presented. 
 
 1076 
 
IN GENERAI, § 1714 
 
 be some equivalent for the loss sustained, so far as it can be represented 
 by it."^ 
 
 And such loss may grow out of injuries to person or to property. 
 
 "Perfect compensation," says Sedgwick,* is "impossible * * * 
 but although the law does not attempt the impossibility of replacing the 
 plaintiff in exactly the position he was in before the injury, yet within 
 the bounds of possibility, its aim is compensation."^ 
 
 Under the caption "Uncertainty — how resolved," Messrs Shearman 
 and Redfield" say : 
 
 "While damages must be reasonably certain, and the burden 
 of proving damages rests, in a general sense, upon the plaintiff, 
 yet if, through no fault of his, the precise damage sustained can- 
 not be accurately determined, the wrongdoer must bear the 
 burden of that difficulty. In such case doubts are to be resolved 
 in favor of the injured party, leaving him, in case he is compelled 
 to pay in part for the fault of some one else, to such remedy as 
 he may have against others. The jury are not, however, to be 
 left to assess damages by guesswork, but must be instructed by 
 the court as to the principles which should guide their action, so 
 far as that is possible."' 
 
 In the "City of Panama,"^ Mr. Justice Clifford, speaking for the 
 court, says : 
 
 "When the suit is brought by the party for personal injuries, 
 there cannot be any fixed measure of compensation for the pain 
 and anguish of body and mind, nor for the permanent injury to 
 health and constitution, but the result must be left to turn mainly 
 upon the good sense and dehberate judgment of the tribunal 
 assigned by law to ascertain what is just compensation for the 
 injury inflicted." 
 
 § 1 714. Intent and motive in actions of tort affecting damages. — 
 "Generally in actions of tort at common law intent or motive is ma- 
 terial only on the measure of damages."" 
 
 sVoorheis, Meas. Damages, sec. 4; Toledo v. Clopeck, 17 Ohio C. C. R., sSS- 
 
 *C)n Damages, 8th ed., sec. 38. 
 
 BRockwood v. Allen, 7 Mass, 254, 256. 
 
 80n Negligence, Sth ed., sec. 740. 
 
 ^See also Sedgwick on Damages, Sth ed., sec. 46. 
 
 »Mr. Justice Braley in Morrison v. Lawrence, 186 Mass. 4S6, 462, 12 N. E. 91. 
 
 124 Am. St. 402. 
 
 1077 
 
§ 171 5 DAMAGES 
 
 In Hawes v. Kiiowles,^" Mr. Chief Justice Gray, says : 
 
 "In an action of tort for a wilful injury to the person, the 
 manner and manifest motive of the wrongful act may be given 
 in evidence as afjfecting the question of damages, for when the 
 merely physical injury is the same, it may be more aggravated 
 in its effects upon the mind, if it is done in wanton disregard of 
 the rights and feelings of the plaintiff, than if it is the result of 
 mere carelessness."^^ 
 
 § 1 71 5. Damages must be reasonable. — From what has been said 
 it follows, that while there is no method of mathematically calculating 
 the damages to be awarded, the amount should be fair and reasonable 
 "under all the circumstances of the injury and of the injured person, so 
 far as they are relevant and admissible."^^ Regarding this feature. Dr. 
 Thompson says,^* "the quantum of damages to be allowed in an action 
 of tort is a matter peculiarly within the province of the jury, and es- 
 pecially is this the case with personal injuries, where the law fixes no 
 precise rule of damages." 
 
 In King v. Consol. Traction Co.,^* the court say the verdict must be 
 sustained, even though it was based on a "guess" by the jury as to the 
 degree of negligence by the defendant and the degree of contributory 
 negligence by the plaintiff, and this even though the jury "inconsistent- 
 ly awarded one dollar to carry the costs." 
 
 "What are the proper elements of damage in an action for injuries, 
 is a question' of law," but it is no part of the duty of the court to "form- 
 ulate a method of computation for the jury to follow in estimating the 
 damages."^" 
 
 Whether the damages claimed are the proximate result of the neg- 
 ligence complained of is purely a question of fact for the jury, unless 
 the evidence is so clear as to admit of but one conclusion." "Remote 
 speculative or contingent" damages will be denied." 
 
 "'114 Mass. 518. 
 
 iiSee § 1773, as to the position of Massachusetts with regard to exemplary- 
 damages. 
 "Voorheis Measure of Damages, sec. 12 ; Gregory v. Slaughter, 124 Ky. 34S. 
 
 1907. 
 
 I'Com. on Negligence, 2d ed., sec. 7348. 
 
 1*33 Pittsburgh, L. J. N. S. 138 (Pa.), i L. R. A. N. S. 215. 
 
 i^Thompson, Com. on Negligence, 2d ed., sec. 7281. 
 
 I'Thompson, Com. on Negligence, 2d ed., sees. 7194, 7195 ; Zabinsko v. Bedford 
 Garage, 134 App. Div. 318, 118 N. Y. Supp. 959, 1909. 
 
 1078 
 
IN GICNERAI, § 1716 
 
 § 1716. Classification of damages into "liquidated" and "unliqui- 
 dated."" — ^While damages are of various kinds and described by par- 
 ticular names, they all fall within two general classifications, respect- 
 ively known as "liquidated" and "unliquidated." Concerning this sub- 
 ject, Sedgwick,^* says: 
 
 "That there is a broad general distinction between a claim 
 sounding in damages and entirely unliquidated, and what is 
 called a liquidated demand is not to be denied. For example, 
 we may take a case of a claim for damages for personal injuries 
 * * *. There the elements from which to ascertain the 
 amount of the demand are wholly at large. The defendant has 
 no means of knowing in advance of proof what the precise pe- 
 cuniary damages has been, still less what should be allowed for 
 pain and suffering. Even the plaintiff, short of an assessment of 
 damages by a jury, cannot give the necessary information. 
 Down to the time of verdict the claim is entirely unliquidated. 
 On the other hand, the commonest example of a liquidated de- 
 mand is an action of debt, where there is an express contract 
 to pay a sum certain at a iixed time. Here all the conditions are 
 reversed. The claim is wholly liquidated; both parties know 
 exactly what it is and when it is to be paid." 
 
 It follows from this that it is error to allow interest upon an award 
 of unliquidated damages.^" 
 
 In connection with unliquidated damages there is what is called 
 quantum meruit, which Bouvier,^" translates as meaning — "as much as 
 he has deserved." Sometimes it is spoken of as quantum valebant, 
 meaning "as much as they are worth." The doctrine applies "where no 
 price has been agreed upon for services or goods," and the party sues 
 to recover the real value of that which is the basis of the suit." On 
 this matter see remarks of the court in connection with compromise 
 verdicts in Lawson v. Wells Fargo, 113 N. Y. Supp. 647, 1908 (No. 
 5323) ; and upon the general subject, see Anthony v. Moore & Munger 
 Co., 13s N. Y. App. Div. 203, 1909 (No. 5183B). 
 
 i^See § 488, Penalties and forfeitures. 
 
 i^Measure of damages, 8th ed., sec. 299. 
 
 "Anthony v. Moore & Munger Co., 135 N. Y. App. Div. 203, 120 N. Y. S. 402. • 
 
 20Dict., Rawles. 
 
 2iSedgwick, Meas. of Damages, 8th ed., sec. 312. 
 
 1079 
 
§ 1 717 DAMAGE 
 
 § 1717. Division of the subject. — The damages with which our 
 subject calls upon us generally to deal, fall within the division un- 
 liquidated damages. All authorities divide damages in cases of tort 
 into two general classes, to which there may be added a third class, in 
 some respects similar to both, but not wholly identical with either : 
 
 ( 1 ) "Compensatory" damages, by which is generally understood the 
 fair and reasonable compensation which the injured person is entitled 
 to recover for the injury or wrong done to him. They furnish the 
 measure usually applied in cases growing out of ordinary negligences. 
 Damages of this class are soryetimes spoken of as "actual" damages, 
 which are defined as being "compensation for such injuries as would 
 fall upon any man who underwent the same treatment.""^ 
 
 In cases involving motor vehicle accidents, the damages are usually 
 compensatory.^^ 
 
 (2) "Bzemplwry" damages, variously known as "punitive" or "vin- 
 dictive" damages, sometimes spoken of as "smart money," "are allowed 
 as a punishment to the wrongdoer" by reason of wilfulness, reckless- 
 ness or wantonness, accompanying the wrongful act.^* 
 
 (3) The third class commonly known as damages for "pecuniary in- 
 juries" arises out of statutes such as Lord Campbell's Act in England, 
 and legislative enactments in American states suggested thereby. 
 Strictly they do not fall within the definition of "compensatory" dam- 
 ages, for damages of that character accrue to the injured person and 
 the right thereto dies with him. Nor are such damages ordinarily of a 
 "punitive" nature, for the right to recover does not generally depend 
 on the character or heinousness of the negligence. By virtue of these 
 statutes, a careless act followed by the death of the injured person, 
 creates a new cause of action in a third party to be satisfied in dam- 
 ages in "such a sum as the jury deems to be a fair and just compensation 
 for the pecuniary injuries resulting from the decedent's death.''^" 
 
 § 1718. Compensatory damages.— In presenting the general prin- 
 ciples of compensatory damages, recourse is had to the general method 
 followed by Mr. Voorheis in his work on the "Measure of Damages in 
 
 "Ross V. Leggett, 61 Mich. 443, 28 N. W. 69s. 
 23Walkup V. Beebe, i39 Iowa 395, "6 N. W. 321. 
 
 24Voorheis, Meas. of Damages, sec. 13; Thompson, Com. on Negligence, 2d 
 ed. sec. 7163 ; Sedgwick on Damages, 8th ed., sec. 347. 
 a'sNew York statute, supra, sec. iS33- 
 
 1080 
 
IN GSNERAI, § ij7i8 
 
 Personal Injury Cases" (1903), sec. 13, because of the brevity and com- 
 prehensiveness of arrangement and statement. A careful review of all 
 the authorities discloses substantial harmony of view and expression 
 regarding the main features of the topic.^" 
 
 The term "compensatory damages" may be taken in general to in- 
 clude the following: 
 
 "Substantial" damages, by which is meant the amount awarded as 
 recompense for the injury and wrong actually sustained; 
 
 "Nominal" damages, are those allowed where there has'been a viola- 
 tion of duty or infraction of a right, unaccompanied by any actual dam- 
 age. They are usually expressed in verdicts of "six cents" or "one 
 dollar" ; 
 
 "Direct damages, are those which are the ordinary and natural result 
 of the wrongful act, and which follow naturally therefrom; 
 
 "Remote" damages, "are those which are the proximate result of the 
 injury but which would not be expected to appear as the natural conse- 
 quence thereof. They occur through a combination of conditions and 
 circumstances over which the party liable for the injury has no con- 
 trol." 
 
 "Consequential" damages, frequently termed "remote damages." 
 These expressions Sedgwick" says "are not, however, necessarily 
 synonymous or to be indifferently used. All remote damages are con- 
 sequential, but all consequential damages are by no means remote." 
 Continuing the author observes : "A loss which is the immediate result 
 of the wrong is called a direct loss ; one that is an indirect result of the 
 wrong is called a consequential loss. * * * If it is sufficiently near 
 the wrong for the law to concern itself with the connection, it is called 
 a proximate loss, if not sufficiently near, it is called a remote loss ; both 
 proximate and remote losses being consequential. * * * Conse- 
 quences of the expected sort are called natural consequences. * * * 
 But a perfectly natural consequence may be at the same time such as is 
 not generally expected to flow from the act in the normal or usual 
 order." 
 
 "Special" damages, "mean the loss which the injured person has sus- 
 tained and will sustain, by reason of his inability to follow or pursue 
 
 2*See Sedgwick on Damages, 8th ed. ; Shearman & Redfield on Negligence, sth 
 ed. ; Thompson's Com. on Negligence, 2d ed. 
 2^ On Damages, Sth ed., sec. no. 
 
 1081 
 
§ 1719 DAMAGES 
 
 in whole or in part his special work, business or profession." Such 
 damages usually apply to professional people or to "any person pre- 
 pared and qualified by education and by practice and experience to en- 
 gage in a special work," who becomes disabled by an injury to do such 
 work in the future.^' 
 
 In Shearman & Redfield,^' it is said : "Special damages cannot be 
 recovered unless pleaded." Sedgwick on Damages,*" after quoting 
 Chitty on Pleading, 410, 411, says : 
 
 "All legal damages must, whether the action be in contract or 
 in tort, naturally result from the act or default complained of ; 
 and although the law in certain cases permits the recovery of 
 such damages as are physically secondary or consequential, yet 
 they must in legal contemplation be also its proximate result. 
 Where such result is necessary, or is legally imported by the 
 facts, the damages are general, and need not specificially be set 
 forth in pleading ; otherwise they must."'^ 
 
 § 1719. "Elements" of compensatory damages. — In every per- 
 sonal injury case growing out of negligence, one or more of the fore- 
 going forms of damages appear, dependent upon the "nature and ex- 
 tent of the injury or wrong." Into the measure of such damages, and 
 as supplying the basis of computation and compensation, all the authori- 
 ties agree, enter one or more of the following,*^ commonly called the 
 "Elements of Damages." 
 
 pirst — "All expenses and disbursements paid or incurred to effect 
 cure and to recover from the effects of the injury, including fees of 
 physician, nurse and expense of medicine."'* 
 
 Damages for injuries may include the fair value of hospital fees and 
 are not confined to a judgment obtained therefor or an agreement as to 
 their amount," and may also include the services of plaintiff's wife as 
 untrained nurse.*' 
 
 28Voorheis, Meas. of Damages, sec. 13. 
 290n Negligence, Sth ed., sec. 739. 
 soSth ed., sec. 1261. 
 
 8iSee also Voorheis, Measure of Damages, sec. 243. 
 si'Voorheis, Measure of Damages, sec. 14. 
 
 88Carter v. Potter, no Maine S4S, 86 Atl. 671, 8 N. C. C. A. 1085; Brown v. 
 Wilmington, 4 Boyce (Del.) 392. 9° Atl. 44- 
 s*Torgeson v. Hanford, 79 Wash. 56, 139 Pac. 648. 
 s^Strand v. Grinnell Automobile Co., 136 Iowa 68, 113 N. W. 488. 
 
 1082 
 
IN GENERAL § lyic^ 
 
 Second— "The value of the time lost by the injured person in and 
 to his business, trade or profession, while he is disabled and recovering 
 from the effects of the injury."^" 
 
 T/iiVrf— "Compensation for the physical pain and suffering caused by 
 the injury, which the person has suffered in the past, and may rea- 
 sonably expect to suffer in the future, as the natural result thereof."*' 
 
 Fourth — "Compensation for any loss or diminution of the physical 
 capacity or mental ability of the person injured to learn, iia youth, or, 
 if an adult, to pursue his business, trade or profession, including any 
 special damages."'* The impairment of the capacity of a married wom- 
 an to earn money may be an element in her damages.'' 
 
 "But the amount of property," say Shearman and Redfield, in the 
 section last cited, "accumulated by the plaintiff's own exertions may be 
 proved for the purpose of showing his earning capacity, on the same 
 principle upon which evidence of his average earnings is admissible."*" 
 
 Where loss of earning capacity is claimed, evidence of what the earn- 
 ing capacity was before the accident is competent."^ Evidence of the 
 plaintiff's large earning capacity may be rebutted by evidence that he 
 had not paid his taxes for some years.*^ The -loss of earnings of an in- 
 surance solicitor may be shown by evidence of what his business pro- 
 duced on a general average.*' 
 
 Fifth — "Damages for any sickness caused by the injury, or for any 
 disease aggravated or developed in the injured person, and all the 
 natural consequences of such sickness or disease." 
 
 But if the conditions complained of were present before the accident 
 
 3'See also Wolfe v. Ives, 83 Conn. 174, 76 Atl. 526; Brown v. Wilmington, 
 Del. Super. Ct. 1914, 90 Atl. 44; Trimble v. Philadelphia, Etc., R. Co., Del. 
 Super. Ct. 1913. 89 Atl. 370; Carter v. Potter, no Maine 545, 86 Atl. 671, 8 N. C. 
 C. A. 1085. 
 
 s^Brown v. Wilmington, Del. Super. Ct. 1914, 90 Atl. 44; Carter v. Potter, 
 no Maine 545, 86 Atl. 671, 8 N. C. C. A. 1085. 
 
 38Brown v. Wilmington, Del. Super. Ct. 1914, 90 Atl. 44. 
 
 s9Withey v. Fowler Co., 164 Iowa 377, 14S N. W. 923; Carter v. Potter, no 
 Maine 545, 86 Atl. 671, 8 N. C. C. A. 1085. 
 
 ^oSee Christy v. Elliott, 216 111. 31, 74 N. E. 1035, a motor vehicle case. 
 
 *iFletcher v. Dixon, 107 Md. 420, 68 Atl. 875. 
 
 *2Beckley v. Alexander, 77 N. H. 255, 90 Atl. 878. 
 
 *3Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 124 Am. St. Rep. 402, 8 
 L. R. A. N. S. 1228. 
 
 1083 
 
§ I720 DAMAGES 
 
 happened the plaintiff cannot recover.** Additional damages caused by 
 further injuries in a hospital cannot be recovered.*' 
 
 So sleeplessness and change of weight may be introduced as evidence 
 of damage.** 
 
 Sixth — "Damages for loss of any service, society, or solatium, in case 
 of a wife or husband, which would have been given by the wife or hus- 
 band ; and for loss of any care, support, education, culture and moral 
 training of children, which the injured parent would have given to 
 them." 
 
 Seventh — "Damages for the pecuniary loss which the next of kin 
 have sustained when death results from the injury received, not ex- 
 ceeding the amount fixed by the statute."*' 
 
 Eighth — Another of the elements for which recovery may be had by 
 the injured person, recognized by all authorities, is "damages for any 
 mental suffering or anguish of mind, caused by the injury or wrong 
 done, past, present and prospective" : (a) Arising from "any physical 
 injury to the person and the fear or apprehension created as to its 
 effects; (b) "Caused by criticism or humiliation occasioned by the 
 mutilation of the body, disfigurement of the face, impediment of speech, 
 or impairment of the mental faculties, on account of the permanent 
 effect of such physical injury." And this "whenever the injury is of 
 such a character that the injured person has a right of action against 
 the wrongdoer, and mental suffering is one of the consequences of such 
 injury."*' 
 
 § 1720. In suit by married woman. — A married woman can re- 
 cover as damages sums she paid out of her own separate estate for cure 
 from her injuries but not for value of clothes torn or loss of time since 
 the clothes were presumably furnished by her husband and since it did 
 not appear whether the time lost was from marital or separate estate 
 duties.*' 
 
 **Posener v. Harvey, Tex. Civ. App. 1910, 125 S. W. 356. 
 
 45Taxicab Company v. Emanuel, 125 Md. 246 ; 93 Atl. 807. 
 
 *«New York Transp. Co. v. Garside, 157 Fed. 521, 8s C C. A. 285. 
 
 «»This is really a description of damages of the character noted in the third 
 classification. It is mentioned here, however, because in some of its aspects it is 
 compensatory in quality. 
 
 *8Voorheis Meas. of Damages, sec. 86; Sedgwick on Damages, 8th ed., sees. 
 43, 44 ; Shear. & Redf . on Negligence, sth ed., sees. 758, 761. 
 
 "Colebank v. Standard Garage Co., 75 W. Va. 389, 84 S. E. losi. 
 
 1084 
 
FOR PERSONAL INJURIES § 1 72 1 
 
 II. Damages for Pbrsonal Injuries 
 
 § 1721. In general. 
 
 1722. Damages excessive. 
 
 1723. Damages not excessive. 
 
 1724. Damages inadequate. 
 
 1725. Where verdict larger than claimed. 
 
 1726. Instructions as to damages. 
 
 1727- Control of appellate court over amount. 
 
 1728. Disease. 
 
 1729. Employment of a substitute. 
 
 1730. Expense of maintaining suit. 
 
 1731. Circumstances of the parties. 
 
 1732. Mental suffering. 
 
 1733- Fright and inconvenience. 
 
 1734. Avoiding damage. 
 
 1735. Subsequent negligence enhancing damages. 
 
 1736. In cases of wilful negligence. 
 
 1737. Future damages — "single action." 
 
 1738. Permanent injuries. 
 
 § 1721. In general. — In Robinson v. Huber.^" the plaintiff, a wom- 
 an, had been run over and injured by defendant's wagon. Mr. Justice 
 Spurance charged the jury on the subject of damages, as follows: 
 
 "If your verdict shall be for the plaintiff, it should be for 
 such sum as will reasonably compensate her for her injuries, in- 
 cluding therein her expenses for medical service and nursing, 
 if any, her pain and suffering, her impaired power to perform 
 labor since her injury and such as may come to her in the fu- 
 ture ; her loss of time and labor as the result of her injuries, if 
 any, and, if under the evidence you find that her injuries are of 
 a permanent character, such as to cause any impairment of 
 ability to earn a living in the future, you should consider that 
 fact in determining the amount of her damages." The verdict 
 was for the plaintiff $500." 
 
 In Haff V. Minneapolis & St. L. Ry.,'" District Judge Nelson charged 
 the jury in a case where the plaintiff was run over by a railroad loco- 
 motive, losing a leg: 
 
 "Plaintiff is entitled to a reasonable compensation— a just 
 remuneration for the injury. He is entitled to surgeon's fees, 
 
 5063 Atl. Repr. 873 (Del.) 1906. 
 
 "iSee also Schaffer v. Gilmer, 13 Nev. 330, 339- 
 
 «2i4 Fed. Repr. 558, 562. 
 
 1085 
 
§ I72I 
 
 DAMAGES 
 
 and amount paid for board and nursing, and a reasonable sum 
 for pain and bodily suffering, and any permanent injury sus- 
 tained. And in arriving at such an amount, you can take into 
 consideration the probabilities of life, and the fact that at the 
 time of the injury he was receiving pay for his services as a 
 traveling salesman ; not that you must give him the amount he 
 would receive, but you can take into consideration all these facts 
 in arriving at a just compensation for the injury sustained." The 
 jury assessed the damages at $S,ooo. 
 
 In Simeone v. Lindsay," the court charged that the verdict should 
 be for such a sum as would reasonably compensate the plaintiff for the 
 injuries he proved, including therein his loss of time and wages, the 
 pain and suffering already past and such as might come to him in the 
 future as the result of the injury, and also for any permanent injuries.^* 
 
 In Strand v. Grinnell Automobile Co.,°^ plaintiff was allowed to re- 
 cover the value of the services of an untrained nurse, although the serv- 
 ice was rendered by his wife. 
 
 In Gregory v. Slaughter,^" the plaintiff was an insurance solicitor. 
 He was permitted to prove "what his business produced on a general 
 average," as the basis of estimating his loss during the several weeks 
 he was confined at home. Mr. Justice Barker, speaking for the Su- 
 preme Court, says : 
 
 "But in actions of tort, where the quantum of damages is very 
 much within the discretion of the jury, evidence of the nature 
 and extent of the plaintiff's business, and the general rate of 
 profit he has realized therefrom, which has been interrupted by 
 the defendant's wrongful act, is properly received, not on the 
 ground of its furnishing a measure of damages to be adopted 
 by the jury, but to be taken into consideration by the jury, to 
 guide them in the exercise of that discretion which, to a certain 
 extent, is always vested in the jury." 
 
 In an automobile accident case in New Jersey, damages were as- 
 sessed in the sum of $8,150, which the appellate court reduced to 
 $2,500, on the ground that, while plaintiff was quite severely bruised, 
 his shoulder dislocated and two of his ribs fractured, his injuries were 
 
 586 Pen (Del.) 224, 65 Atl. 778. 
 
 B^See also Hannigan v. Wright, s Pennew. 537, S43 (Del.), 63 Atl. 234- 
 
 "136 Iowa 68, 113 N. W. 488. 
 
 "124 Ky. 4S, 99 S. W. 247- 
 
 1086 
 
FOR PERSONAI, INJURIES § 1 722 
 
 not permanent, and, therefore, "a much less sum than that awarded by 
 the jury, would amply compensate him therefor."^^ 
 
 In another case, where plaintiff's injuries occurred because of the 
 fright of his horse at defendant's automobile, the court charged the jury 
 that "if the negligence was gross, the jury might, in addition to com- 
 pensating plaintiff, find punitive damages — that is, damages by way of 
 punishment." On appeal the upper court refused to reverse, because 
 "the damages awarded were not excessive," though they expressly de- 
 precate the charge in the particular regarding punitive damages. The 
 verdict was for $400.°* 
 
 § 1722. Damages excessive. — In the following cases the verdicts 
 were held excessive and were reduced by the court. 
 
 For injuries to the shoulder, knee and back, not permanent, $4,500 
 reduced to $3,000." 
 
 Five thousand dollars for fracture of both ankles where a good 
 recovery was had reduced to $3,000.°° 
 
 Eight thousand one hundred and fifty dollars cut down to $2,500 
 where plaintiff severely bruised, shoulder dislocated and two ribs broken 
 but not permanently injured.'^ 
 
 Eight thousand, five hundred dollars for traumatic neurosthenia re- 
 duced to $5,000.°^ 
 
 Nine thousand, two hundred and fifty dollars to a nurse for loss of 
 earning power reduced to $5,000.°' 
 
 Twelve thousand, five hundred dollars reduced to $7,500 where the 
 plaintiff was permanently disabled and this sum should yield an aver- 
 age income equal to his earning capacity.'* 
 
 B'Kathmeyer v. Mehl, 60 Atl. Repr. 40 (N. J.), ipoS- 
 
 "Wdskopf V. Ritter, 97 S. W. Repr. (Ky.), 1120, 1906. See also Christy v. 
 Elliott, 216 111. 31, 74 N. E. 1035 ; Garrett v. People's Ry., 6 Pennew. 29 (Del), 
 64 Atl. 254; Weiskopf V. Ritter, 97 S. W. Repr. (Ky.) 1120; Walkup v. Beebe, 
 139 Iowa 395, 116 N. W. Repr. 321; Suell v. Jones, 49 Wash 582, 96 Pac. 4; 
 Cecchi V. Lindsay, i Boyce (Del.) 185, 75 Atl. Repr. 376; Klem v. Burleson, 
 138 App. Div. 405, 122 N. Y. Supp. 752- m r r A ,So 
 
 »»Heath V. Seattle Taxicab Co., 73 Wash. 177, I3i Pac 843. S N. C. C. A. 189. 
 
 »«Ploetz V. Holt, 124 Minn. 169, 144 N. W. 745- 
 
 eiKathmeyer v. Mehl, N. J. 190S, 60 Atl. 40. 
 
 62Mickelson v. Fischer, 81 Wash. 423, 142 Pac. 1160. 
 
 63Guignon v. Campbell, 80 Wash. 543, Mi Pac 1031. 
 
 8*Mosso V. E. H. Stanton Co., 75 Wash. 220, 148 Pac. 594- 
 
 1087 
 
§ 1723 DAMAGES 
 
 Thirty-five thousand dollars reduced to $25,000 where young girl 
 lost leg.°' 
 
 Two thousand, five hundred dollars excessive where little girl bruised 
 but suffers no permanent injury."' 
 
 § 1723. Damages not excessive. — The following verdicts have 
 been found not excessive : 
 
 Three hundred dollars for bruises and pain and illness for some time 
 after the accident. °^ 
 
 Six hundred dollars where child unconscious for a day, received 
 nervous shock and various bruises and rendered cross-eyed.®* 
 
 Seven hundred and fifty dollars where the plaintiff was knocked un- 
 conscious and incapacitated for work for two months.'® 
 
 One thousand dollars for permanent impairment of earning ca- 
 pacity.''" 
 
 One thousand and twenty dollars loss of vision of one eye.''^ 
 
 One thousand two hundred dollars where plaintiff was rendered un- 
 conscious and suffered permanent injuries to his skull. '^ 
 
 One thousand two hundred dollars for a fracture of the leg, medical 
 expenses and loss of wages." 
 
 Two thousand dollars where the plaintiff was terribly bruised was in 
 bed for three months and had severe pains and is nervous and sleeps 
 poorly and his nose is broken.^* 
 
 Two thousand, two hundred dollars where plaintiff's leg broken 
 and not healed in 19 months.''^ 
 
 Two thousand, five hundred dollars for permanent injury to plain- 
 tiff's hand.'' 
 
 s'Noakes v. N. Y. C. & H. R. R., 121 N. Y. App. Div. 716, 106 N. Y. S. 522. 
 esBuford v. Hopewell, 140 Ky. 666, 131 S. W. 502. 
 6'Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876. 
 osj. p. Darmody Co. v. Reed, (Ind. 1916), in N. E. 317. 
 89Scrogg V. Sallee, 24 Cal. App. 133, 140 Pac. 706. 
 'oChase v. Seattle Taxicab, Etc., Co., 78 Wash. 537, 139 Pac. 499. 
 "Shinkle v. McCuUough, 116 Ky. 960, 77 S. W. 196. 
 "Hiroux V. Baum, 137 Wis. 197, 118 N. W. 533, 19 L. R. A. N. S. 332- 
 "Smith V. Heibel, 157 Mo. App. i77, i37 S. W. 70, S N. C. C. A. 107. 
 7*Studebaker Bros. Co. v. Kitts, Tex. Civ. App. 1913, IS2 S. W. 464, 6 N. C. 
 C. A. 63. 
 "Reitz V. Hodgkins, (Ind. 1916), 112 N. E. 386. 
 ^'Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247. 
 
 1088 
 
For personai, injuries § 1723 
 
 Two thousand, five hundred dollars for an old man who suffered a 
 fractured pelvic bone, fractured ribs, bruises and an injury to the ab- 
 domen causing persistent vomitingj' 
 
 Three thousand dollars where the plaintiff's injuries consisted of a 
 fractured arm resulting in a permanent injury and severe pain.''' 
 
 Three thousand, four hundred dollars for permanent injuries to the 
 arm and other injuries.'^' 
 
 Three thousand, five hundred dollars where the automobile ran 
 over both legs.*" 
 
 Three thousand, six hundred and twenty-five dollars for injuries to 
 the knees of a vigorous woman resulting in permanent injury.*'- 
 
 Four thousand dollars for girl with cinders ground into her face, 
 leaving it permanently scarred.*^ 
 
 Five thousand dollars on evidence that the plaintiff has become a 
 confirmed epileptic as a result of the accident.** 
 
 Five thousand dollars where the plaintiff's right thigh was broken 
 leaving his right leg an inch and a half short and he receives other in- 
 juries.** 
 
 Six thousand dollars where the plaintiff's arm is rendered useless.*' 
 
 Six thousand dollars for an electrician earning good wages who be- 
 comes hopelessly crippled.** 
 
 Six thousand, five hundred dollars where the plaintiff had a depressed 
 skull, paralysis of the left leg and impairment of hearing.*' 
 
 Six thousand, nine hundred and twenty-six dollars and six cents for 
 the loss of two years' service and expenses admitted to amount to $4,500 
 
 "Cloh^rty V. Griffiths, 82 Wash. 634, 144 Pac. 912. 
 
 "Hodges V. Chambers, 171 Mo. App. 563, 154 S. W. 429, 5 N. C. C. A. 181. 
 79Whitney v. Sioux City, Iowa 191S, IS4 N. W. 497. 
 soAronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641. 
 siMagee v. Vaughan, (D. Ct. Pa.), 212 Fed. 278, 134 C. C. A. 388. 
 82Hays V. United Rys. Co., 183 Mo. App. 608, 167 S. W. 656, 6 N. C. C. A. 68. 
 ssMoy Quon v. M. Furuyo Co., 81 Wash. 526, 143 Pac. 99- 
 8*Louisville & N. R. Co. v. Nethery, 160 Ky. 369, 169 S. W. 883. 
 ssBachelder v. Morgan, 179 Ala. 339, 60 So. 81S, Ann. Cas. 191S, c. 888, S N. 
 C. C. A. S- 
 seDaly v. Curry, 128 Minn. 449, ISI N. W. 274. 
 ^'National Cash Register Co. v. Williams, 161 Ky. SSO, 171 S. W. 162. 
 
 1089 
 69 
 
§ 1724 DAMAGES 
 
 where the plaintiff also had suffered great pain and would suffer a 
 future loss of employment.*' 
 
 Eleven thousand, five hundred dollars to a young man in good health 
 for permanent injuries to the skull and chest.'° 
 
 Fifteen thousand dollars where plaintiff made a permanent cripple.'" 
 
 Fifteen thousand dollars where plaintiff was crushed.'^ 
 
 § 1724. Damages inadequate. — ^A verdict of $1.00 is inadequate 
 for contusion of the head, insoniinia and nervousness and $106 in medi- 
 cal expenses.*^ 
 
 It is not an abuse of discretion for a trial judge to set aside as in- 
 adequate a verdict for $1,000 where the plaintiff had partly lost his 
 memory and hearing and suffered loss of earning capacity and other 
 permanent injuries.'^ 
 
 § 1725. Where verdict larger than claimed. — ^Where a verdict is 
 for a large amount than that claimed for loss of time the excess should 
 be remitted.'* 
 
 § 1726. Instructions as to damages. — ^The court should instruct 
 as to damages in view of the facts, and where recovery is sought for 
 damages for personal injury the court should not confine its instruction 
 to pain and suffering.'" 
 
 An instruction is erroneous which allows a recovery for physical in- 
 juries sustained in addition to physical and mental suffering and further 
 allowed a recovery for permanent impairment of earning capacity as 
 this might allow double damages for the injuries sustained. All are 
 included under physical injuries."' 
 
 § 1727. Control of appellate court over amount. — The appellate 
 court will not reverse the action of the lower court in granting a new 
 
 ssphiUips V. Taxi Service Co., (Cir Ct. Dist. Mass.), 183 Fed. 869, afgrmed 
 (C. C. A. ist Ct.), 187 Fed. 734, I09 C. C. A. 482. 
 s'Louisville Lozier Co. v. Sallee, Ky. 1916, 180 S. W. 841. 
 soHamilton, H. & Co. v. Larrimer (Ind. 1914), los N. E. 43, 5 N. C. C. A. 783. 
 MChamplin v. Pawcatuck Valley, Etc., Ry. Co., 33 R- 1- 572, 82 Atl. 481, S N. C. 
 
 C. A. 787. 
 92Strever v. Woodward, 160 Iowa 332, 141 N. W. 93i, 6 N. C. C. A. 73. 
 98Reuter v. Hickman, Lauson & Co., 160 Wis. 284, iSi N. W. 795- 
 »*Rush V. Metropolitan St. Ry. Co., 157 Mo. App. 504, 137 S. W. 1029. 
 o'Wadley v. Dooly, 138 Ga. 275 ; 75 S. E. IS3- 
 s«Forgy V. Rutledge, 167 Ky. 182, 180 S. W. 90. 
 
 1090 
 
FOR PERSONAL INJURIES § 1 728 
 
 trial because of the inadequacy of the verdict where this ruling has 
 the support of substantial evidence." 
 
 Appellate courts have no authority to interfere with the verdicts of 
 juries on the ground of excess unless it is apparent from the amount 
 that passion and prejudice rather than reason prevailed.'^ 
 
 The court of appeal will not overrule the action of the trial court in 
 refusing to set aside a verdict as being excessive as the question of dam- 
 ages is peculiarly within the province of the jury."' 
 
 § 1728. Disease.^"" — Where a disease caused by the injury super- 
 venes and proximately results, or where a disease exists at the time of 
 the injury, and is aggravated by the injury, the plaintiff is entitled to 
 full compensatory damages.^ 
 
 In Schafer v. Gilmer,^ plaintiff was injured while a passenger on de- 
 fendant's stage coach. The defendant claimed that "the alleged in- 
 juries came from natural causes." The plaintiff claimed that "by the 
 upsetting of defendant's stage coach, he was so badly injured as to pro- 
 duce pneumonia, and that the disease of his lungs arising from such 
 injuries, had become incurable." Upon this question there was a direct 
 conflict of evidence : 
 
 "Held, that if the jury believed the testimony offered upon 
 the part of the plaintiff to be true, a verdict in his favor of five 
 thousand dollars was not excessive." 
 
 § 1729. Employment of a substitute. — Plaintiff may have recovery 
 for employment of a substitute in his business while he is disabled, but 
 not for his own board during the time as that is an expense which he 
 would have incurred in any event.^ 
 
 § 1730. Expense of maintaining suit. — "The general rule is that 
 counsel fees are not recoverable as damages. The law awards to the 
 
 s^DoTset V. Chambers, 187 Mo. App. 276, 173 S. W. 725. 
 
 98Studebaker Bros. Co. v. Kitts, Tex. Civ. App. 1913, 152 S. W. 464, 6 N. C. 
 C. A. 63. 
 ssDunbar v. Jones, 87 Conn. 253, 87 Atl. 787. 
 io«See also § 1062. 
 
 lOhio & M. R. V. Hecht, ns Ind. 443, I7 N. E. 297- 
 213 Nev. 330. 
 sThom. Com. on Negligence, 2d ed., sees. 7288, 7289. 
 
 IO91 
 
§ 1 73 1 DAMAGES 
 
 successful party his taxable costs, but the fees which he pays to counsel 
 are not taken into consideration."* 
 
 And at sec. 233, the author last cited calls attention to the fact that 
 in Massachusetts, the Supreme Court have described the rule as "well 
 settled,"^ so also in New York,® per Nelson, C. J., Nor can recovery be 
 had for expense and time in attending court, the reason being the same 
 as that just stated in the matter of counsel fees, namely, that in general 
 the law considers the taxed costs as covering all expense of the liti- 
 gation.'' 
 
 § 1 73 1. Circumstances of the parties. — "The wealth of the de- 
 fendant or the poverty of the plaintiff cannot be taken into account, nor 
 directly or indirectly put in evidence."* 
 
 "Evidence as to the number of the plaintiff's family is not competent 
 for the purpose of enhancing damages, although it may be for some 
 other special purpose, to which it must be confined."* 
 
 § 1732. Mental suffering.'^" — ^The following, taken from Voor- 
 hies,^^ summarizes much that has been published on this point : 
 
 "Damages for mental suffering have been the subject of ex- 
 tensive discussion by the courts within the last twenty years. 
 The new element of motive power so universally adopted and 
 the new inventions and new industries created and established 
 within that period, have raised new questions in relation to negli- 
 gence and damages. Many rules of the common law have been 
 changed, modified or extended to meet the new facts, conditions 
 and exigencies of modern civilization. No one question has been 
 so often before the courts, and so thoroughly discussed and con- 
 sidered, as damages for mental suffering. The authorities are 
 divided as to the limitations which should be put upon it in the 
 assessment of damages and in some instances as to the nature of 
 actions in which damages for mental suffering should be al- 
 lowed. 
 
 *Sedgwick on Damages, 8th ed., sec. 229. 
 
 ^Barnard v. Poor, 38 Mass. 378, 382, Shaw, C. J. 
 
 ^Lincoln v. Saratoga, Etc., R., 23 Wend. 425, 435. 
 
 ''Jacobson v. Poindexter, 42 Ark. 97 ; Sedgwick on Damages, 8th ed., sec. 229. 
 
 ^Otherwise in cases of punitive damages, see § 1768. 
 
 'Shearman & Redf. on Negligence, sth ed., sec. 762; Sedgwick on Damages, 
 8th ed., sec. 490. See also Christy v. Elliott, 216 111. 31, 74 N. E. 1035, 108 Am, 
 St. R. 196. 
 
 i»See § 1064. 
 
 i^Meas. of Damages, sec. 86. 
 
 1092 
 
FOR PERSONAL INJURIES § 1732 
 
 "Authorities agree that damages for mental suffering should 
 be predicated upon some actual injury or zmlful wrong negli- 
 gently or intentionally done or caused to be done, by some act of 
 omission or commission,^'' but they disagree as to what consti- 
 tutes a right of action for damages for mental suffering." 
 
 The same author," thus states the meaning of the distinction between 
 the mental sufferings for which damages are not recoverable, and those 
 which may be the subject of estimate by a jury: 
 
 "It means generally where mental suffering is claimed by a 
 third person and not by the person who is injured, or where it 
 is distinct from any injury or wilful wrong. If this. distinction 
 be kept in mind it will not be difficult to keep the meaning of 
 mental suffering as here used within its proper limitations. 
 Mental suffering for which damages are recoverable is confined 
 to the suffering of the person injured." 
 
 In Sedgwick,^* on the subject of mental suffering resulting from in- 
 jury, as an element of damages, and the objections thereto, it is said: 
 "The Supreme Court of Massachusetts in a carefully reasoned opinion, 
 has effectually disposed of the objection." The decision referred to, 
 which is quoted at length below and by Sedgwick, is Ballou v. Far- 
 nam,^^ wherein the plaintiff claimed compensation for diminution of 
 mental capacity caused by the injury. The court through Mr. Justice 
 Colt said : 
 
 "In all actions of this description and particularly in those 
 in which damages for mental suffering or loss of mental capacity 
 are sought to be recovered, the difficulty of furnishing by evi- 
 dence the means of measuring the extent of the injury, so that 
 the jury may be able to award with any certainty a pecuniary 
 equivalent therefor, is at once apparent; and in this difficulty 
 the defendants find argument for the support of their objection. 
 But the answer is, that the law does not refuse to take notice of 
 such injury on account of the difficulty of ascertaining its de- 
 gree. In a variety of actions founded on personal torts, andin 
 many where no positive bodily harm has been inflicted, the plain- 
 tiff is permitted to recover for injury to the feelings and affec- 
 
 i^Italics by the author of this book. 
 "Sec. 137. 
 
 i*Oii Damages, 8th ed., sec. 46. 
 1593 Mass., II Allen, 73, 77. 
 
 1093 
 
§ 1732 DAMAGES 
 
 tions, for mental anxiety, personal insult, and that wounded 
 sensibility which follows the invasion of a large class of personal 
 rights. The impossibility, in all such cases, of precisely appreci- 
 ating in money mental suffering of this description,. is certainly 
 as great as is suggested where the question is what shall be al- 
 lowed for a permanent injury to mental capacity. The compen- 
 sation for personal injury occasioned by the negligence or mis- 
 conduct of others, which the law promises, is indemnity, so far 
 as it may be afforded in money, for the loss and damage which 
 the man has suffered as a man. Some of its elements may be 
 bodily pain, mutilation, loss of time and outlay of money; but 
 of more important consideration oftentimes is the mental suffer- 
 ing and loss of capacity which ensues. Of these several items 
 of injury, if compensation is to be confined to those capable of 
 accurate estimate, it will include but a small part, and must 
 exclude all those injuries commonly regarded as purely psychical 
 for the difficulty in ascertaining a pecuniary equivalent for the 
 last named is precisely the same and quite as great as any that 
 have been suggested. In fact, it will be found impossible to fix 
 a limit to injuries of a physical nature so as to exclude from con- 
 sideration their effect on the mental organization of the sufferer. 
 The intimate union of the mental and physical, the mutual de- 
 pendence of each organization — if indeed, for any practical pur- 
 pose in this regard, they can be considered as distinct — the direct 
 and mysterious sympathy that exists whenever the sound and 
 healthy condition of either is disturbed, render useless any at- 
 tempt to separate them for the purpose indicated. It is ob- 
 ■ vious, upon a moment's reflection that the powers and usefulness 
 of the limbs and senses in ministering to the necessities and 
 pleasures of the individual are to a great extent to be measured 
 by the knowledge, experience and taste which he possesses, and 
 which are purely qualities of the mind. Take the case of an in- 
 jury to the right arm of a skilful painter or musician, for ex- 
 ample. To show the extent of his injury, the plaintiff produces 
 evidence of the use he was able to make of the arm before and 
 after the accident. From such evidence alone could the jury 
 judge of the plaintiff's loss. Such proof is constantly resorted 
 to without objection in these cases. And still the chief value of 
 the limb to do its possessor consists in its skilful use, as con- 
 trolled and directed by the cultivated taste and education of the 
 plaintiff ; and the chief loss to him is the loss of_ the power to 
 make these purely intellectual endowments available for his 
 pleasure or benefit. Or suppose the injury to be one of the five 
 senses. Can any rule be adopted which shall limit the damages 
 to that portion of the injury suffered which may be called only 
 bodily ? 
 
 1094 
 
FOR PERSONAL INJURIES § 1732 
 
 "There is a class of injuries, especially those which affect the 
 brain and nervous system, to which this class seems to have be- 
 longed, where, by common observation, the most satisfactory 
 symptom and proof of the physical injury is to be found in the 
 weakness and derangement of the intellectual faculties. Upon 
 the whole, then, upon principle we can see no error in the ad- 
 mission of the evidence, with the accompanying instructions. In 
 the main it must always be left to the discretion of the jury to 
 give such reasonable damages in these cases as in their opinion 
 Avill afford compensation for the entire injury which the plain- 
 tiff proves he has sustained, subject to that power which remains 
 in the court to set aside the verdict in those cases where the 
 damages awarded are so excessive as to warrant the inference 
 ihat some passion or prejudice or other improper consideration 
 influenced them. 
 
 "We find two authorities in the Supreme Court of the United 
 States, which go further than the necessities of this case require 
 in support of the doctrines relied on. The first is the case of 
 Wade V. Leroy, 20 How. 43. The declaration alleged that the 
 plaintiff was injured by a blow upon the head, and in conse- 
 quence of the wound his brain was affected and his memory and 
 understanding impaired ; that he was detained thereby and had 
 been hindered and prevented for a long period from attending 
 to his affairs, and lost and was deprived of great gains. The 
 plaintiff offered to prove at the trial that before and at the time 
 of the injury he was largely engaged in the business of distilling 
 turpentine, and that after the accident he could not safely attend 
 to any business. To this the defendant objected, on the ground 
 that the declaration did not contain any specification of such 
 business, or of its nature or extent, or any statement that the 
 plaintiff was obliged to and did relinquish the same. The judges 
 of the circuit court were divided in opinion upon the admissi- 
 bility of the evidence, but it was held by the court admissible. 
 Campbell, J., said that the evidence conduced to prove that the 
 plaintiff before the time of the injury had been concerned in 
 conducting a business that required a degree of mental and 
 bodily vigor, and that his time was of some pecimiary value ; or 
 that he had suffered a loss of some profit ; and would certainly 
 assist a jury to determine that the plaintiff had sustained an 
 injury of no slight character. These were the direct and neces- 
 sary consequences of the injury. This decision waS' cited and 
 approved by Nelson, J., in Nebraska City v. Campbell, 2 Black. 
 590." 
 
 iBSee also Canning v. Williamstown, i Cush. (Mass.) 451; Baldwin v. Western 
 Railroad, 4 Gray (Mass.) 333 ; Sedgw. on Dam., 3d ed., 187. 
 
 109s 
 
§ 1733 DAMAGES 
 
 "The cases in New York not only sustain the grounds upon 
 which we place this decision, but some of them go further than 
 the true rule of damages in such cases would seem to require.^^ 
 
 § 1733- Fright and inconvenience. — Upon this subject the courts 
 of the different states are not in harmony. Sedgwick/* quotes Mellor, 
 J., in Hobbs v. London, Etc., W. Ry.,'" as follows : 
 
 "For mere inconveniences, such as annoyances and loss of 
 temper or vexation, or for being disappointed in a particular 
 thing which you have set your mind upon, without real physical 
 inconvenience resulting, you cannot recover damages. That is 
 purely sentimental." 
 
 In Spade v. Lynn & B. R.^° the Supreme Court thoroughly consider 
 the subject on principle and precedent. Mr. Justice Allen reviewing 
 the decisions in Massachusetts and elsewhere, says in conclusion : 
 
 "We remain satisfied with the rule that there can be no re- 
 covery for fright, terror, alarm, anxiety, or distress of mind, 
 if these are unaccompanied by some physical injury/^ and if 
 this rule is to .stand, we think it should also be held that there 
 can be no recovery for such physical injuries as may be caused 
 solely by such mental disturbance, where there is no injury to 
 the person from without. The logical vindication of this rule 
 is that it is unreasonable to hold persons who are merely negli- 
 gent bound to anticipate and guard against fright and the con- 
 sequences of fright ; and that this would open a wide door for 
 unjust claims, which could not successfully be met.""^ 
 
 i^Lincoln v. Schenectady, Etc., Railroad, 24 Wend. 434 ; Ransom v. New York 
 & Erie Railroad, 15 N. Y. 415 ; Tilley v. Hudson River Railroad, 24 N. Y. 471. 
 
 isQn Damages, 8th ed., sec. 47. 
 
 "L. R. 10 Q. B. 
 
 2»i68 Mass. 28s, 47 N. E. 88. 
 
 2iltalics by the author of this book. 
 
 22The court cite the following cases in support of this view: Victorian Ry., 
 Etc., V. Coultas, 13 App. Cas. 222; Mitchell v. Rochester Ry., 151 N. Y. 107, 45 
 N. E. 54; Ewing V. Pittsburg, Etc., Ry., 147 Pa. St. 40, 23 Atl. 340; Haile v. 
 Tex. & Pac. Ry., 60 Fed. Repr. 557, C. C. A., Sth Cir. And as taking a different 
 view: Bell v. Great Nor. Ry., 26 L. R. (Ir.) 428; Purcell v. St. Paul City Ry., 
 48 Minn. 134, 50 N. W. 1034; Pitzpatrick v. Great West. Ry., 12 U. C. Q. B. 64S; 
 Beven on Negligence, 77 et seq. 
 
 1096 
 
For personal injuries § 1734 
 
 The American text writers generally follow the view of the Massa- 
 chusetts court in personal injury cases.^^ 
 
 The court, in Spade v. Lynn, quoted above, expressly except (p. 
 290), from the operation of this rule, fright resulting from acts of 
 gross negligence or recklessness. But see the opinion of Mr. Justice 
 Holmes, in the same case on its second appearance in the Supreme 
 Court.^* Also White v. Sander,^^ where it was held that recovery of 
 damages for fright alone could not be had, even when the negligence 
 was gross. Also Smith v. Postal Co.^" 
 
 In Texas the rule is that where the defendant's act is the proximate 
 cause of the fright, such fright being the cause of a physical injury, 
 damages may be recovered.^^ 
 
 Where fright and a shock are the direct result of negligence, shock 
 may be a link in the chain of proximate causation as efficient as physical 
 impact.^^ 
 
 But where there is "no immediate personal injury" no recovery can 
 be had for injuries resulting from fright alone, even though the occa- 
 sion of the fright was the negUgent act of the defendant.^* 
 
 A plaintiff may show that through the injury she has become a 
 nervous wreck although the declaration only asks damages for physical 
 injuries.*" 
 
 § 1734. Avoiding damage.*' — It is a thoroughly settled rule that 
 "the plaintiflf cannot recover compensation for any damage which he 
 might' have avoided by the use of ordinary care and diligence, after 
 first becoming aware of the injury of which he complains."*^ 
 
 23Voorheis, Meas. of Damages, sees. 92, 93; Shearman & Redf. Negligence, 
 5th ed., sec. 761 ; Sedgwick on Damages, 8th ed., sec. 42 ; Thompson Com. on 
 Negligence, 2d ed., sees. 155, 7323. 
 
 2*Spade V. Lynn & Boston Ry., 172 Mass. 488, 47 N. E. 88. 
 
 25i68 Mass. 296, 47 N. E. 9°- 
 
 28174 Mass. 576, 55. N. E. 380. 
 
 a^ulf Coast, Etc., R. v. Hayter, 93 Tex. 239, 54 S. W. 944- See also upon the 
 general proposition, GiUam v. Hogue, 39 Pa. Super. 547, 1908; Pankopf v. Hink- 
 ley, 141 Wis. 146, 123 N. W. 625. 
 
 28Pankopf V. Hinkley, 141 Wis. 146, 123 N. W. 625. 
 
 29Mitchell V. Rochester Ry., 151 N. Y. 107, 45 N. E. 54, and cases cited page 109 
 thereof- New York Transp. Co. v. Garside, 157 Fed. Repr. 521, 1907. 
 
 aoAllen v. Bland, Tex. Civ. App. T914, 168 S. W. 35, 8 N. C. C. A. 299. 
 
 aiSee "Last Clear Opportunity," § 1107. 
 
 32Shearman & Redf. on Negligence, sec. 741 (5th ed ) ; McGee v. Young, 132 
 
 Ga. 606, 64 S. E. 689. 
 
 1097 
 
§ I73S DAMAGES 
 
 § 1735- Subsequent negligence enhancing damages.'^ — Dr. 
 Thompson^* presents the following as a general statement of the rule 
 on this point in civil actions for damages : 
 
 "The rule * * * ;§ ^^^ j-jjg person injured is not entitled 
 to recover for any enhancement of damages produced by his own 
 want of care. To illustrate: A. has been injured by B. B. 
 must pay to A. those damages which proximately and naturally 
 flow from the injury done by him, but not those damages which 
 flowed from the subsequent negligence or fault of A. — as, in 
 disobeying the advice of his physician or the like. The reason 
 is that the negligence of A., and not the negligence of B., is 
 the proximate cause of these enhanced damages."^' 
 
 In Standard Oil Co. v. Bowker^* the Supreme Court of Indiana, by 
 Mr. Justice Hackney, say : 
 
 "It is argued" that the plaintiff "having disobeyed the in- 
 struction of his physician in taking improper exercise, con- 
 tributed to his diseased condition. While this may be true, that 
 fact would not deprive him of damages for the original injury, 
 but would probably permit an inquiry as to the extent of the in- 
 jury sustained alone from the fault of the" defendant. "In other 
 words, the question is one of the amount of damages, and not of 
 the right to recover damages."'^ 
 
 The degree of care required in this respect is "ordinary care."'^ And 
 whether he has exercised reasonable care will generally be a question 
 for the jury under all the circumstances of the case.^° But a mistake 
 of a competent physician employed in good faith, can be shown neither 
 in defense nor in mitigation.*" 
 
 ssSee § 1013. 
 
 **Coin. on Negligence, 2d ed., sec. 251. 
 
 '"See also Ibid 247, and Shearman & Redf. on Negligence, sth ed., sec. 95; 
 Sedgwick on Damages, Sth ed., sec. 201 et seq. 
 
 S840 N E. Repr. 128, 130, 141 Ind. 12. 
 
 "See also Sauter v. N. Y. C. & H. R., 66 N. Y. 50; Cameron v. Vandergriff, 
 53 Ark. 381, 386, 13 S. W. 1092. 
 
 '^Shearman & Redf. on Negligence, Sth ed., sec. 741. 
 
 ssThompson, Com. on Negligence, 2d ed., sec. 202. 
 
 *oSauter v. N. Y. C. & H. R. R., 66 N. Y. 50 ; Lyons v. Erie Railway, 57 N. 
 Y. 489 ; Shearman & Redf. on Negligence, sth ed., sec. 31 ; SchoU v. Grayson, 
 147 Mo. App. 6S2, 127 S. W. Repr. 415. 
 
 1098 
 
FOR PERSONAL INJURIES § 1 736 
 
 The duty of the party injured is satisfied if he selects a physician of 
 good repute and he is not chargeable with the negligence of such phy- 
 scian so elected." The court errs in instructing the jury that they must 
 find as an affirmative fact that the plaintiff aggravated his condition by 
 disobeying the doctors as the jury might well think- that this implied 
 some positive act while the only testimony was the opinions of the doc- 
 tors and this was sufficient.*^ 
 
 § 1736. In cases of wilful negligence. — The doctrines above enun- 
 ciated have no application to cases of wilful or malicious injuries. In 
 such cases the rules of contributory negligence find no place.*' 
 
 § 1737. Future damages — "single action." — In a personal injury 
 case, if the injury is of such nature that repeated actions might be 
 brought, as for continuing injury, "the plaintiff may recover not only 
 the amount of the damage which he suffered prior to the commence- 
 ment of the action, but also all the damage proceeding continuously 
 from the injury complained of, which he has suffered up to the ver- 
 dict and which it is reasonably certain that he will suffer in the future. 
 There must however, be a reasonable certainty as to such future dam- 
 age. A mere probability of its occurrence is not enough. Compen- 
 sation for future damage must be estimated upon its present worth, that 
 is, such sum as, if now invested at the usual interest, would produce 
 the equivalent of the damage when that will occur."** 
 
 A charge that the jury should consider future pain which the plain- 
 tiff will suffer if the defendant was negligent is correct.*^ 
 
 § 1738. Permanent injuries. — In proving permanent injuries plain- 
 tiff may introduce in evidence standard life or "mortality tables," to 
 show the expectancy of life of one of his age. They are not to be ac- 
 cepted as conclusive or as furnishing a mathematical guide, but rather 
 as supplying- a basis to aid the jury in estimating the amount of damages 
 properly recoverable.*" It is also competent to introduce in evidence 
 
 *iScholl V. Grayson, 147 Mo. App. 652, 127 S. W. 41S. 
 
 «2Ribas V. Revere Rubber Co., 37 R. I. 189, 9i Atl. 58. 
 
 "^Thompson, Com. on Negligence, 2d ed,, sec. 247. 
 
 **Shearman & Redf. on Negligence, Sth ed., sec. 743 ; Sedgwick on Damages, 
 8th ed., sec. 84. 
 
 *5Ray V. State, 142 Ga. 65S, 83 S. E. S18. 
 
 «Clark V. Van Vleck, 13S Iowa 194, 112 N. W. 648; Suell v. Jones, 49 Wash. 
 582, 96 Pac. 24. 
 
 1099 
 
§ 1739 DAMAGES 
 
 the opinion of the family physician who had the injured party in his 
 care, based upon his own personal knowledge touching the question 
 as to the liability of a recovery of health.*^ It is not necessary that the 
 injury should result in total disability, the point to which the proof 
 should be directed is that it is permanent.*' 
 
 Disfigurement and deformity or marring of personal appearance as 
 a result of the injury, by reason of which one's prospects in life are 
 affected, is a proper subject of consideration in estimating general dam- 
 ages.*^ 
 
 In Suell V. Jones°° the jury were instructed that they should take into 
 consideration all the evidence in the case and all the facts and circum- 
 stances, and use their own good judgment in arriving at the amount 
 which in their opinion would adequately compensate the respondent for 
 his injury.^^ 
 
 III. Damages for Injuries to Personai, Peoperty^^ 
 
 § 1739- The general rule. 
 
 1740. Diflference in value before and after 'damage. 
 
 1741. Evidence of what was done to car after accident. 
 
 1742. Expert evidence of value. 
 
 1743. Storage or chauffeur's wages. 
 
 1744. Cost of substitute car. 
 1745- Value of use during repairs. 
 
 1746. Expense of new parts. 
 
 1747. Price paid as evidence of value. 
 
 1748. Expense of repairs. 
 
 1749. Care of injured property. 
 
 1750. Replevin. 
 
 1751. Ownership in relation to replevin. 
 
 1752. Injuries to animals. 
 
 ^'Denver Tramway Co. v. Reid, 4 Col. App. 53, 63, 35 Pac. 269. 
 
 <8Thompson, Com. on Negligence, 2d ed., sees. 7270, 7309; Voorheis, Meas. of 
 Damages, sec. 60 ; Brown v. Wilmington, Del. Super. Ct. 1914, 90 Atl. 44. 
 
 *9Thompson, Com. on Negligence, 2d ed., sec. 7271 ; Hays v. United Rys. Co., 
 183 Mo. App. 608, 167 S. W. 656, 6 N. C. C. A. 68. 
 
 E049 Wash. 582, 586, 96 Pac. 24. 
 
 BiSee also Christy v. Elliott, 216 111. 31, 48, 74 N. E. 1035; Kathmeyer v. Mehl, 
 60 Atl. Repr. 40 (N. J.), 1905; Walkup v. Beebe, 139 Iowa 39S, 116 N. W. Repr. 
 321; Rogers v. Mann, 70 Atl. Repr. 1057 (R. I.), 1908; Hiroux v. Baum, 137 
 Wis. 197, "8 N. W. Repr. 533. 
 
 IICK) 
 
FOR INJURIES TO PERSON AI. PROPERTY § 1 739 
 
 § 1739- The general rule regarding damages for negligent injuries 
 to property of all kinds, is to allow to the plaintiff the difference 
 between the market value of the property immediately before the injury 
 occurred, and the like value immediately after the injury. "Where a 
 chattel has been totally lost" to the plaintiff, say Shearman & Redfield,^^ 
 "he should recover its full value according to the market rates current 
 at the time of the loss, if it is a thing ordinarily bought and sold on the 
 market ; and partial loss should be estimated on the same basis allow- 
 ing a due proportion of the value. * * * The value of the use of an 
 article during the period occupied in its repair, may be allowed, not 
 exceeding, however, the value of the thing itself. * * * A^ a gen- 
 eral rule the full value of a chattel is the utmost amount that can be re- 
 covered for its loss ; and where that value is allowed nothing can be 
 added for the expense of procuring a temporary substitute, or for loss 
 of its use meantime."^* It has been held in New York, to be error to 
 admit evidence that a vehicle had "shrunk in value," in the light of other 
 testimony that subsequent to the accident, repairs were made at a cost 
 of $37.50, after which its conditions was as good or better than former- 
 ly 55 
 
 The owner of a vehicle injured by the negligence of another maj* 
 recover: (a) "The reasonable cost of necessary repairs, and not what 
 he paid for such repairs, unless the reasonableness of the expenditure 
 and its necessity are shown, (b) He is also entitled to recover the 
 expenses paid for removing the vehicle from the place where the in- 
 jury was received, and storing it during such time as arrangements 
 could be made for its repair, (c) A reasonable amount for the use of 
 a like vehicle," while the injured vehicle was being repaired." 
 
 Concerning the ^113; of a drh/er, or the expense of the keep of a horse, 
 
 52For meaning of "Market "Price," see § 663. 
 
 6'On Negligence, sth ed., sec. 751. 
 
 6*White, Etc., Co. v. Phenix, Etc., Co., 188 Mass. 407, 74 N. E. 600; Paterson 
 V. Chicago M. & St. P. Ry. Co., 95 Minn. S7, 103 N. W. 621. See Trimble v. 
 Philadelphia, Etc., R. Co., Del Super. Ct. 1913, 89 Atl. 370. 
 
 BsMendleson v. Van Rensselaer, 118 N. Y. App. Div. 516, 103 N. Y. S. 578. 
 
 6«Thompson's Com. on Negligence, 2d ed., sec. 7243 ; Sedgwick, Damages, 8th 
 ed., sec. 216, et seq.; Buchanan v. Crawford, 112 N. Y. App. Div. 278, 98 N. Y. 
 S. 378; Mendleson v. Van Rennsselaer, 118 N. Y. Div. 516, 103 N. Y. S. 578; 
 Anthony V. Moore & Munger Co., 135 N. Y. App. Div. 203, 120 N. Y. S. 402- 
 
 IIOI 
 
§ 174° DAMAGES 
 
 during the time a vehicle is being repaired, Mr. Justice Kreedman, in a 
 New York case,^^ said : 
 
 "It did not appear that either the driver or the horse was 
 injured or prevented by the accident from being able to perform 
 any duties that might have been required of them during the 
 time the wagon was out of use. The items of pay for the driver 
 and for the keeping of the horse during the period aforesaid 
 were, therefore, improperly allowed. As damages they were not 
 the natural and proximate consequences of the act complained of 
 and were too remote." 
 
 The reason for this is the rule already noted, that, being able to 
 work at other things and so reduce the loss, they should be made' to 
 do so; not enhancing the damages by maintaining the driver and the 
 animal in idleness. The repairs for which damages will be allowed 
 are only such as grow out of the accident or are due to it.^^ 
 
 § 1740. Difference in value before and after damage. — The usual 
 rule for damages is the difference in the reasonable market value of 
 the automobile immediately before and immediately after the accident 
 in negligence cases,°° provided however if the injury be capable of re- 
 pair at an expense less than the diminution in value of the property as 
 injured, the damage is limited to the cost of such repair. Where a case 
 is tried by both parties on the theory that the injury could be repaired, 
 the cost of the repairs is a proper measure of damages."" 
 
 The measure of damages for injury to an automobile is its market 
 value before the injury in case it is so completely destroyed as not to be 
 susceptible of repair or the difference between its reasonable market 
 value immediately before the injury and immediately thereafter if it 
 was susceptible of being repaired. So a charge is erroneous which 
 makes the test the difference in value of the automobile before and 
 after the injury without this explanation.'^ 
 
 "Newell V. Smith, 58 N. Y. Supp. 1025, 28 Misc. 182. 
 
 BSMurphy v. N. Y. City Ry., 58 Misc. 237, 108 N. Y. Supp. 1021. 
 
 5«Texas & P. Ry. Co. v. Eddleman, Tex. Civ. App. 1915, 175 S. W. 775; Coffin 
 V. Laskau, Conn. 1915, 94 Atl. 370, L. R. A. 1915 E. 959! Neel v. Smith, Iowa 
 191S, 147 N. W. 183; Paterson v. Chicago, M. & St. P. Ry. Co., 9s Minn. 57, 103 
 N. W. 621 ; Wells Fargo & Co. Express v. Keeler, Tex. Civ. App. 1915, 173 S. 
 W. 926. 
 
 soKincaid v. Dunn, 26 Cal. App. 686, 148 Pac. 235. 
 
 '^Cincinnati, Etc., Ry. Co. v. Sweeney, Ky. 1915, i79 S. W. 214. 
 
 1 102 
 
FOR INJURIES TO PERSONAI, PROPERTY § I74I 
 
 Where the automobile was fitted with hard rubber tires before the 
 accident and after the accident the plaintiff was obliged to buy more 
 expensive pneumatic tires he may be allowed for this outlay. If the 
 car was more valuable with the new tires this increase must be credited 
 to the defendant.*^ 
 
 The proper measure of damages is the difference between the value 
 of the car when it was taken and its value when it was returned in an 
 action for its conversion"^ or replevin."* 
 
 § 1 74 1. Evidence of what was done to car after accident. — The 
 defendant cannot show that a car that was in collision was not badly 
 damaged by showing merely that after the accident certain repairs 
 were made to the car and not others — that the fenders or hub caps 
 were not repaired."^ 
 
 § 1742. Expert evidence of value."" — The plaintiff may testify as 
 to his opinion of the damage done to his car where he had had dealings 
 for two or three years in cars of the make in question and was ac- 
 quainted with the price of second-hand cars and had made extended in- 
 quiries as to the value of his car after the accident."^ 
 
 Evidence of an automobile dealer at the county seat only a few miles 
 from the town in question as to the value of an automobile is admissi- 
 ble. It is a matter of common knowledge that automobiles are of a 
 class of articles which are universally put upon the market through 
 dealers at a definite price varied only by the freight charges."" 
 
 As bearing on the question of damages for conversion of an auto- 
 mobile an expert may testify as to the value of the car for demonstrat- 
 ing purposes. There is no difference between "demonstrating pur- 
 poses" and "such demonstrating purposes as were necessary.""^ 
 
 § 1743. Storage or chauffeur's wages. — ^Damages for injury to an 
 automobile does not include storage charges or wages paid the chauf- 
 feur during that period.''" 
 
 "2Wells Fargo & Co. Express v. Keeler, Tex. Civ. App. 191S, I73 S. W. 92^ 
 "sLyman v. James, 87 Vt. 486, 89 Atl. 932. 
 
 "*Pabst V. Rapid Safety Filter Co., 56 Misc. 44S, io7 N. Y. Suppl. 163. 
 «5Granger v. Farrant, I79 Mich. 19, 146 N. W. 218, 51 L. R. A. N. S. 453- 
 «8See further ante. 
 
 87Coffin V. Laskau, § 1684, 9 Conn. 325, 94 Atl. 37°, L. R. A. 1915 E. 9S0- 
 "'Smead v. Stearns, Iowa 1916, ISS N. W. 307. 
 "'Lyman v. James, 87 Vt. 486, 89 Atl. 932. 
 ToDillon V. Mundet, 145 N. Y. S. 975, I9i4 App. Term. 
 
 1 103 
 
§ 1744 DAMAGES 
 
 § 1744. Cost of substitute car. — The reasonable cost of a substi- 
 tute car while the car in question is being repaired may be an element of 
 damage/^ but this item must be confined to sums actually expended and 
 cannot include estimates of what would have been the expense of an- 
 other automobile if one had been hired.'^ Where the full value of the 
 damaged vehicle is allowed nothing can be added for the expense of a 
 substitute car.''^ 
 
 § 1745. Value of use during repairs. — ^^The value of the use of an 
 automobile during repairs is a proper item of damages.''* Where the de- 
 fendant injures the plaintiflf's car the plaintiff is entitled to recover for 
 the loss of vise of the car while the defendant is repairing it at its own 
 expense although the car is used for pleasure only. The damages 
 would not be the rental value of the car for such rental value includes a 
 substantial allowance for depreciation and repairs, and for overhead 
 expenses and profits. It is not clear that the car would have been rented 
 every day though its rental value is competent evidence of the damages. 
 
 An automobile owner who expects to use his car for pleasure only 
 has the same legal right to its continued use and possession as an owner 
 who expects to rent his car for profit. An invasion of this property 
 right calls for substantial damages which should be fair and reasonable 
 according to the circumstances.'"' 
 
 In New York however the rule seems to be that to recover for such 
 loss of use the plaintiff must show that such use had a definite market 
 value as a source of profit arid that mere use for pleasure cannot be 
 made the foundation for damages.''* 
 
 TiW. S. Conrad Co. v. St. Paul City Ry., 130 Minn. 128, 153 N. W. 256; Car- 
 dozo V. Bloomingdale, 79 Misc. 605, 140 N. Y. S. 377 (N. Y. Sup.) ; Cardozo v. 
 Bloomingdale, 88 Misc. 68, 150 N. Y. S. S77 (N. Y. Sup.). 
 
 ^^Peters v. Streep, 138 N. Y. S. 146, App. Term 1913. 
 
 ^'Shearman & Redfield on Negligence, sth ed., sec. 751. 
 
 7*Wells Fargo & Co. Express v. Keller, Tex. Civ. App. 1915, 173 S. 'W. 926. 
 
 T'Cook V. Packard Motor Car Co., 88 Conn. 590, 92 Atl. 413, L,. R. A. 1915 C. 
 
 319- 
 
 'eFoley v. Forty-Second St., Etc., Ry., 52 N. Y. Misc. 183, 97 N. Y. S. 9S8; 
 Body V. N. Y. City Ry. Co., 56 N. Y. Misc. 602, 107 N. Y. S. 31 ; Revault v. 
 Simpson Crawford Co., 108 N. Y. Suppl. 700, App. Term 1908. See also Murphy 
 V. N. Y. City Ry. Co., 58 Misc. 237, 108 N. Y. Supp. 1021 ; Zabinsko v. Bedford 
 Garage, 118 N. Y. Supp. 959, i34 App. Div. 318. 
 
 1104 
 
FOR INJURIES TO PERSONAL PROPERTY § 1746 
 
 Evidence of damages for the loss of use of the car may be excluded 
 where it was not used for hire and it is not shown that the plaintiff 
 hired another to take its place/'' 
 
 The value of the loss of use of a carriage may be shown by showing 
 what the carriage had been earning up to the time of the accident and 
 what it cost to replace it/' The value of the use of a car while being re- 
 paired is competent.'" 
 
 Damages for wrongful seizure of an automobile are estimated by the 
 deterioration and reasonable rental from the date of seizure to the date 
 of trial.'" 
 
 Where a common carrier is guilty of unreasonable delay in deliver- 
 ing an automobile engine sent for repair, the damages may include the 
 net rental value of the automobile during the delay." In an action for 
 conversion of an automobile evidence may be received of the loss of 
 rental of the car due to the conversion and also of the loss of opportunity 
 to sell it.'=' 
 
 § 1746. Expense of new parts. — Experts may testify to the ex- 
 pense of new parts necessary without deduction for depreciation where 
 the evidence showed the automobile was practically new and the insur- 
 ance policy under which loss is claimed provides that the loss should 
 not exceed what it would cost the insured to repair or replace the same 
 with material of like kind and quality.*' 
 
 § 1747. Price paid as evidence of value. — The price paid for an 
 automobile four days before is evidence of its value in an action for con- 
 version.'* 
 
 § 1748. Expense of repairs.— Damages may be fixed by the cost 
 of the repairs when after the repairs the vehicle is shown to be as good 
 
 "Ballard v. Collins, 63 Wash. 493, nS Pac. 1030; Donnelly v. Poliakoff, 79 
 Misc. 250, 139 N. Y. S. 999 (N. Y. Sup.) ; Murphy v. N. Y. City Ry. Co 58 
 Misc. 237, 108 N. Y. Supp. 1021. See Revault v. Simpson Crawford Co., App. 
 Term 1908, 108 N. Y. Suppl. 700. 
 
 TsWood Transfer Co. v.'Shelton, 180 Ind. 273; loi N. E. 718. 
 
 'sAndries v. Everitt Metzger Flanders Co., 177 Mich, no, 142 N. W. 1067. 
 
 sopord Motor Co. v. Freeman, Tex. Civ. Apfi. 1914, 168 S. W. 80. 
 
 "Armstrong v. Chicago, M. & St. P. Ry., 35 S. Dak. 398, 152 N. W. 696. 
 
 82Lyman v. James, 87 Vt. 486, 89 Atl. 932- 
 
 ssjones V. Orient Ins. Co., 184 Mo. App. 402, 171 S. W. 28. 
 
 84Schall V. Northland Motor Car Co., 123 Minn. 214, 143 N. W. 357- 
 
 lies ^ . , 
 
 10 ' ■ 
 
§ 1749 DAMAGES 
 
 or better than before,^' but the cost must be confined to repairs shown 
 to be due to the accident.** 
 
 In an action for damage to an automobile a question "What was the 
 cost of the repairs" is objectionable but the objection is cured by the 
 question "That was the reasonable cost of repairs was it not."'^ 
 
 A receipted bill for repairs is not sufficient to prove their value or 
 amount. There must be proof of the reasonable cost of making the 
 repairs, their necessity and the time reasonably consumed.'* 
 
 To show damage to a team it is insufficient to show what the plain- 
 tiff paid for repairing it without showing just what the damage con- 
 sisted in. The test is the reasonable expense of doing the work.*' 
 
 Damages for injury to an automobile may be recovered although the 
 repair bill has not been paid.'" 
 
 § 1749- Care of injured property. — Dr. Thompson," thus states 
 the duty : 
 
 "The doctrine imposing upon the sufferer from a negligent 
 act the legal duty to exercise reasonable diligence to minimise 
 the resulting injury, and in case of failure in this duty, prevent- 
 ing a recovery from the wrongdoer of such damages as the 
 sufferer could have escaped, though most often applied to per- 
 sonal injuries, is not. limited to that form of negligence but in- 
 cludes cases of injuries to property." 
 
 The degree of care required in both classes of cases, is that of "ordi- 
 nary" care.'^ 
 
 § 1750. Replevin. — Where the action is one involving a replevin 
 of the motor vehicle in question, the judgment may be in the alterna- 
 tive, that is to say, either for the return of the car or for damages in a 
 sum to be fixed by the judgment. Such judgment is satisfied by the 
 performance of either alternative. In case the verdict should include 
 
 86Mendleson v. Van Rensselaer, 118 N. Y. App. Div. 516, 103 N. Y. S. 578. 
 
 88Murphy v. N. Y. City Ry., 58 Misc. 237, 108 N. Y. Suppl. 1021. 
 
 s'Hill V. Condon, Ala. App., 70 So. 208. 
 
 8SW. S. Conrad Co. v. St. Paul City Ry., 130 Minn. 128, 153 N. W. 256. 
 
 s^Zellmer v. McTaigue, 170 Iowa 534, 153 N. W. 77. 
 
 ""Kincaid v. Dunn, 26 Cal. App. 686, 148 Pac. 235. 
 
 '"■Com. on Negligence, 2d ed., sec. 7259. 
 
 szShearman & Redf., Negligence, sth ed., sec. 741. 
 
 1106 
 
For injuries to personai, property § 1751 
 
 a sum for depreciation, such depreciation must be allowed for down 
 to the time of the trial. No subsequent action can be brought on that 
 account as the matter by the judgment in the replevin action has become 
 res adjudicata.^^ 
 
 § 1751. Ownership in relation to replevin. — "Ordinarily sole 
 ownership in a plaintiff suing in replevin is not essential to the mainte- 
 nance of the action, because he may recover though not the sole owner, 
 against a stranger who has neither title nor right of possession if he has 
 an interest and is entitled to possession."^* 
 
 § 1752. Injuries to animals. — Dr. Thompson^' states the general 
 rule on this subject as follows : 
 
 "The measure of damages for the death of domestic animals 
 killed through negligence is their value at the time of the negli- 
 gent killing, and on this question it may be shown that the ani- 
 mal was well broken, or was in foal at the time. * * * ^ The 
 damages recoverable for injuries not resulting in death is the 
 difference in the market value of the animals before and after the 
 injuries,"" and whatever expenses the owner incurred in a bona 
 Me attempt to cure the animal. The value is the market value 
 at the time and place of the accident. On the question of value 
 of the animal, the plaintiff may show the amount expended by 
 him for hirhg other animals to take the place of those injured."" 
 
 Under the rule applied to personal injuries, there can be no recovery 
 for injuries to an animal resulting solely from fright caused by negli- 
 gence, where no immediate physical injury is received.'* 
 
 In an action for damages for injury to a horse evidence that the horse 
 was a race mare and a good driving animal and that the injury had 
 incapacitated her for both by making her lame and causing her to scare 
 easily may be competent if shown that this was the direct result of the 
 injury under a general allegation of damages. But a mere disposition 
 
 flspabst V. Rapid Safety Filter Co., 56 Misc. 445, io7 N. Y. Supp. 163. 
 
 s*Swenson v. Wells, 140 Wis. 316, 122 N. W. 724. 
 
 95Com. on Negligence, 2d ed., sec. 7246. 
 
 osPannell v. Allen, 160 Mo. App. 714, 142 S. W. 482. 
 
 97See also Ibid. sec. 7371- GiUet v. Western R. Corp. 90 Mass. 560; Atwood 
 V Boston Etc., F. Co., 185 Mass. 557, 7i N. E. 72; Sedgwick on Damages, 8th 
 ed., sec. 321 ; Shearman & Redf., Negligence, sth ed., sec. 752. 
 
 »8Thompson's Com. on Negligence, 2d ed., sec. 7248. 
 
 1 107 
 
§ 1752 DAMAGES 
 
 to scare disconnected from the physical injury inflicted was not a proper 
 element of damages unless it had been specially pleaded. Evidence of 
 nervousness and excitability would be competent as tending to show an 
 injury to the nervous system but the great uncertainty attending an in- 
 vestigation of this character should suggest to the pleader who may de- 
 sire to enter that field of investigation to make his allegations specific in 
 that regard.*' 
 
 Where an automobile frightens a horse so he strains himself and dies 
 the next day his death may be found caused by the accident..^"" 
 
 In Lee v. Burlington/ it was held that damages would not follow in 
 a case where "the negligent operation of a street roller frightened a 
 horse and caused it to rupture a blood vessel in its heart which resulted 
 in death." On the other hand, the same author at sec. 7247, cites the 
 case of Oleson v. Brown/ wherein Mr. Justice Cole says (p. 415) : 
 
 "For common experience and common sense teach mankind 
 that the market value of a horse is greatly lessened by its habit 
 of faking fright at any object and running away!' 
 
 "It is therefore competent to show the value of the horse before and 
 soon after the accident, based on a change in his disposition."^ In a 
 New York case, however, it was held to be error to admit testimony to 
 show that a horse had shrunk in value as a "family horse" because, after 
 the accident, he was nervous in the presence of automobiles. The rea- 
 son given is that such testimony is "purely fanciful."* 
 
 The plaintiff may show the usable value of the animal during the 
 periodhe was deprived of its use by reason of the injuries sustained." 
 There can, however, be no recovery "for fright or other merely mental 
 suffering unconnected with physical injury" to the animal.' 
 
 »»PanneIl v. Allen, 160 Mo. App. 514, 142 S. W. 482. See Gillam v. Hogue, 39 
 Pa. Super Ct. 547, 7 N. C. A. A. 4, frightening horse so he can no longer be 
 driven safely may be considered as an element of damage. 
 
 looNelson v. Holland, 127 Minn. 188, 149 N. W. 194. 
 
 1113 Iowa 356, 85 N. W. 618, (cited by Dr. Thompson). 
 
 241 Wis. 413- 
 
 sGillam V. Hogue, 39 Pa. Super. S47- 
 
 *Mendelson v. Van Rensselaer, 118 N. Y. App. Div. 516, 103 N. Y. S. 578. 
 
 sBuchanan v. Crawford, 112 N. Y. App. Div. 278, 98 N. Y. S. 378. 
 
 eGillam v. Hogue, 39 Pa. Super. 547, 1908. 
 
 1 108 
 
IN ACTIONS OF CONTRACT § 1753 
 
 IV. Damages in Actions of Coni;eact. 
 
 § 1753- Measure of damages in cases of sales with warranty of article. 
 1754. Loss of future profits. 
 
 § 1753- Measure of damages in cases of sales with warranty of 
 article.— Mr. Justice Bartlett of the New York court of appeals, in an 
 automobile case, says : 
 
 "It has long been the settled law of this state that where an 
 article is delivered to the purchaser with an express warranty, 
 the measure of the purchaser's damages on the breach thereof, 
 is the difference between the value of the article if it had been as 
 warranted and the actual value."^ 
 
 § 1754. Loss of future profits. — Damages for breach of contract 
 resulting in loss of profits are not to include all possible profits but 
 what might reasonably have been expected. Thus damages for breach 
 of a contract to furnish sight-seeing automobiles will not include profits 
 on all trips with a full passenger list.' 
 
 Damages for future profits of an agent are such profits as he might 
 have made if he had continued in business, considering all the uncer- 
 tainties of the business.® Where an agent sues for wrongful discharge 
 his damages are loss of prospective profits but these cannot be shown by 
 lists of the agent's "prospects" as whether sales would have been made 
 to them is pure speculation.^" 
 
 V. Mitigation of Damages^i 
 
 § 1755- In general. 
 
 1756. Matter of evidence. 
 
 1757. Wages. 
 
 1758. Insurance, pension or gift. 
 
 1759. Criminal conviction. 
 
 § 1755- I" general. — By "mitigation of damages" is meant those 
 circumstances, which, though they do not amount to justification or ex- 
 
 ^Isaacs V. Wannamaker, 189 N. Y. 122, 81 N. E. 763. 
 sZabinsko v. Bedford Garage, 118 N. Y. Suppl. 959, I34 App. Div. 318. 
 sprench v. Pullman Motor Car Co., 242 Penn. 136, 88 Atl. 876. 
 loMcGinnis v. Studebaker Co., 75 Oregon 519, 146 Pac. 825, 147 Pac 525- 
 "Mitigation of punitive damages, see post, § 1769. 
 
 I109 
 
§ 175^ bAMAGfiS 
 
 cuse of the act committed, may yet be considered as tending to dimin- 
 ish the amount of damages to be assessed.^^ 
 
 "The general rule is that contributory negligence is never looked to 
 in mitigation or apportionment of damages." In states where the doc- 
 trine of comparative negligence holds sway/^ the defendant may plead 
 the plaintiff's contributory negligence, in "mitigation," and the jury 
 may "balance the fault of the parties," and assess damages on the de- 
 fendant accordingly. The general rule has one important exception, 
 namely : that the plaintiff is not entitled to damages for any enhance- 
 ment of the injury produced by his own want of care, subsequent to 
 the injury complained of, such as disobeying the directions of his physi- 
 cian and the like. The reason is that the negligence of the plaintiff and 
 not of the defendant is the proximate cause of the enhancement. 
 
 The same principle is extended and applied to the care of animals 
 and other property after an injury occurs, it being plaintiff's duty^* to 
 exercise ordinary care to minimize the results of the injury which he has 
 sustained." 
 
 The burden of proof in this matter is on the defendant.^' 
 
 § 1756. Matter of evidence. — "Matters of aggravation or mitigation 
 are properly matters of evidence only, and it is not really a question of 
 law whether or not a circumstance is one of aggravation or mitigation. 
 In fact, it is easily conceivable that a circumstance that would aggravate 
 the damages in one case would mitigate them in another."^' 
 
 In the same section the same author observes : "The court is called 
 upon to decide whether evidence offered by a party is admissible in his 
 favor, either in aggravation or in mitigation, * * * but * * * 
 the court would not be justified in charging that the evidence must be 
 taken in one way or the other." Any special matter in aggravation or 
 mitigation should be specially pleaded. Such matters cannot be proven 
 under a general averment by the plaintiff or under general denial by the 
 defendant." 
 
 i^Bouvier's Law Diet. ; Anderson's Law Diet. ; Sedgwick on Damages, 8th ed., 
 sec. SI. 
 "§ 1003. 
 
 "Sees. 1013, 1735- 
 
 iBThompson's Com. on Negligence, 2d ed., sec. 252. 
 "Eastman v. Clackamas, 32 Fed. Repr. 24, 35, Ore. Cir. 1887. 
 I'Sedgwick on Damages, 8th ed., sec. 52. 
 isThompson's Com. on Negligence, 2d ed., sees. 7160, 7223. 
 
 mo 
 
AGGRAVATION OF § 1757 
 
 § 1757- Wages.— It is held that if the injured person has continued 
 to receive wages or salary during the time he was disabled, the defend- 
 ant may show it in mitigation of damages for time lost even though it 
 appear that the wages were paid "from mere benevolence."" 
 
 The reason for the rule is that, as already noted, it is the duty of the 
 plaintiff to minimize the results of the injury.^" 
 
 § 1758. Insurance"— Pension or gift.— An insurance against ac- 
 cident or death, or an insurance on animals or property injured or de- 
 stroyed, cannot be pleaded in reduction of damages. The principle is, 
 "that the party effecting the insurance has paid for it, and there is no 
 equity in the claim of the negligent person to the benefit of a contract 
 for which he never gave any consideration."^^ 
 
 Nor can a pension or gift accruing to the injured person be taken into 
 account.^^ 
 
 § 1759- Criminal conviction.^* — The defendant in a civil action is 
 not "permitted to prove in mitigation of damages that he had been in- 
 dicted, convicted, and fined for the same offence. An indictment is in- 
 tended as a vindication of public justice; and action is brought as a 
 compensation for private injury. The object of the two proceedings is 
 entirely distinct, and the one should not interfere with the course of 
 the other."'=s 
 
 VI. Aggravation of Damages. 
 
 § 1760. In general. 
 1 761. Massachusetts rule. 
 
 § 1760. In general. — By this expression is generally meant the in- 
 troduction of matter "which tends to increase the amount of damage, 
 but does not affect the right of action itself."^* 
 
 isDrinkwater v. Dinsmore, 80 N. Y. 390 ; Voorheis, Meas. of Damages, Sec. 34. 
 
 2oSedgwick on Damages, 8th ed., sec. 214. 
 
 2iSee § 796. 
 
 22Shearman & Redf ., Negligence, Sth ed., sec. 765 ; Thompson's Com. on Neg- 
 ligence, 2d ed., sec. 7216; 2 Smith's Leading Cases, nth ed., 293. See ante, § — . 
 
 23Shearman & Redf., Negligence, 5th ed., sec. 765. 
 
 2*See also § i77i- 
 
 25Sedgwick Damages, Sth ed., sec. 489; Wharton's Criminal Law, loth ed., 
 sec. 618 ; Lewis v. Amorous, 3 Ga. App. 50, 57, 1907. 
 
 28Bouvier's Law Diet.; Sedgwick on Damages, 8th ed., sec. 51. 
 
 nil 
 
§ 1761 DAMAGES 
 
 As observed in sec. 1756, concerning mitigation of damages, matters 
 of aggravation are also really matters of evidence only. 
 
 In Southern Ry. Co. v. O'Bryan,^' the Supreme Court generally con- 
 sider the distinction between aggravation of actual damages and exem- 
 plary or punitive damages. Mr. Justice Cobb, writing the opinion, says 
 that: 
 
 "To justify imposition of exemplary damages 'there must have 
 been some wilful misconduct, or that entire want of care which 
 would raise the presumption of a conscious indifference to con- 
 sequences. * * * There was nothing shown by the evidence 
 in the present case, which warranted the imposition of punitive 
 damages. * * * j^- ^^g g^id that certain facts might be 
 proved 'as matter of aggravation,' but from the context it is 
 clear that this language was intended to convey only the idea 
 that such proof would authorize an increase of actual dam- 
 ages." 
 
 The court in this case cite the Encyclopedia of Law,"* and its authors 
 in their turn cite Hathaway v. Rice,"' where Chief Justice Boyce says : 
 
 "But matter of aggravation, correctly understood, does not 
 consist in acts of the same kind and description as those consti- 
 tuting the gist of the action, but in something done by the de- 
 fendant on the occasion of committing the trespass, which is to 
 some extent, of a different legal character from the principal 
 act complained of." 
 
 Like matter in mitigation, special matter in aggravation should be 
 pleaded.^" 
 
 The fact that the defendant paid only a nominal fine in a criminal 
 proceeding will not be allowed to increase damages." 
 
 § 1761. Massachusetts rule.*"— The principle of aggravated dam- 
 ages in actions of tort, except in cases brought under special statute, 
 
 ^■'iip Ga. 147, 45 S. E. 1000. 
 282 Am. & Eng. Enc. of Law, 2d ed., p. i. 
 ■2919 Vermont 102, 107. 
 soSee §§ ISS3, 1565. 
 
 iiSee § 1759, Mitigation of damages ; Sedgwick, Damages, 8th ed., sec. 489. 
 32See rule as presented in punitive damages, § 1773 and Chapter L on 
 actions under the statute where death occurs. 
 
 1 1 12 
 
BxeMPLARY OR PUNITIVE § 1762 
 
 prevails in Massachusetts, the doctrine of punitive damages, other than 
 in the exceptional class of cases referred to, not being recognized.^^ 
 
 VII. ExeMPLARY OR PuNITlVe DAMAGES 
 
 § 1762. In general. 
 
 1763- When recoverable. 
 
 1764. Province of the jury and court. 
 
 1765. Must be pleaded. 
 
 1766. Responsibility of employers. 
 
 1767. Joint defendants. 
 
 1768. Amount recoverable. 
 
 1769. Mitigation of punitive damages. 
 
 1770. Enhancement of punitive damages. 
 
 1771. Criminal proceedings. 
 
 1772. Punitive statutes. 
 
 1773. Massachusetts rule. 
 
 § 1762. In general.— "Exemplary," "punitive," or "vindictive" 
 damages, sometimes referred to as "added damages" or "smart money," 
 are allowed in a certain class of cases upon the theory that compensatory 
 damages are inadequate, and fail fully to compensate the injured party 
 for the wrong done to him. The law also applies them in punishment, 
 as a public example and a deterrent to others. They are inflicted 
 "where the wrongdoer acted from malicious or wicked motives, or has 
 been entirely indifferent and reckless and negligent in the discharge of 
 the duties imposed upon him by law."'* 
 
 Dr. Thompson observes : 
 
 "The principle * * * jg unique in that it imports into civil 
 actions a segment of the criminal law, but the doctrine has been 
 accepted as the general rule in England and in most of the states 
 of the United States, and is too well settled now to be shaken."'" 
 
 s^Howes V. Knowles, 114 Mass. 518; Sedgwick on Damages, 8th ed., sec. 358. 
 
 3*See Chapter 48, Wilful and Wanton Negligence ; Missouri Pac. Ry. v. Humes, 
 IIS U. S. 512, 521, 6 Sup. Ct. no; Peoria Bridge, Etc., v. Loomis, 20 111. 235; 
 Thompson's Com. on Negligence, 2d ed., sec. 22. 
 
 ^'Thompson, Com. on Negligence, 2d ed., sec. 7163 ; Voorheis, Meas. of Dam- 
 ages, sec. 183 ; Sedgwick on Damages, 8th ed., sec. 363, 366 ; Shearman & Redf . 
 on Negligence, Sth ed., sec. 748. 
 
 'sVoorheis Meas. of Damages, sec. 183 ; Shearman & Redf. on Negligence, sth 
 ed., sec. 748. 
 
 II13 
 
§ 1762 DAMAGES 
 
 Such damages are not recoverable for mere negligence nor even 
 where aggravating circumstances only are shown. Cases of the last 
 mentioned variety fall under the rules concerning aggravated damages 
 {ante. Sec. 1760). 
 
 Nor can a plaintiff maintain an action merely to recover exemplary 
 damages, if he has suffered no actual loss.^'' 
 
 Exemplary damages may be recovered in proper cases, in an action 
 of tort for assault and battery or other injury to the person, or for in- 
 jury to personal property, where the defendant has acted wantonly, 
 wilfully or recklessly.'^ 
 
 Mr. Voorheis says in section 183, quoting Dr. Thompson: 
 
 " 'Whether or not the case is one that justifies exemplary dam- 
 ages is a question for the court^^ to determine in its instructions 
 to the jury. In the discharge of its duty the court looks to the 
 animus of the defendant that accompanies the injury. If it was 
 wantonly or wilfully inflicted, or with such gross want of care 
 and regard for the right of others, as to justify the presumption 
 of wilfulness or wantonness, the court will instruct the jury that 
 they are at liberty to find for the plaintiff in addition to compen- 
 sation for the injury actually sustained,^" such a sum as the cir- 
 cumstances justified.' " 
 
 Continuing the author remarks that where the injuries "occurred 
 through carelessness or negligence amounting to a wrong so reckless 
 and wanton as to be without palliation or excuse," added damages may 
 be given by way of punishment. "It is well settled," says Sedgwick,*" 
 "that when they are allowed it is in addition to compensatory damages 
 for either physical or mental suffering." "What conduct" observes Dr. 
 Thompson, "the law will consider equivalent to a wilful or wanton act 
 is as hard to define as negligence itself, and in the nature of things, is 
 so dependent upon the particular circumstances of each case as not 
 to be susceptible of general statement."*^ 
 
 s^Sedgwick on Damages, 8th ed., sec. 361 ; Thompson, Com. on Negligence, 2d 
 ed., sec. 7170. 
 
 ssSedgwick on Damages, 8th ed., sec. 372, 373 ; Shearman & Redf. on Negli- 
 gence, 5th ed., sec. i or 2 leads 751. 
 
 ssltalics are by the author of this book. 
 
 ♦"On Damages, 8th ed., sec. 3S7- 
 
 *iCom. on Negligence, 2d ed., sec. 7166. See Chapter XX on Reckless Driving, 
 and Chapter XXXIII, Gross negligence. 
 
 1 1 14 
 
EXEMPLARY OR PUNITIVE § 1 763 
 
 § 1763. When recoverable.— Exemplary damages are allowed 
 only in cases of gross negligence or malice.*^ 
 
 In an accident case the jury are to give only compensatory damages 
 and to award nothing by way of punishment.*^ 
 
 Punitive damages were allowed on evidence of gross negligence of 
 the defendant and impatience at the plaintifif, a pedestrian, for being in 
 the way.** The defendant's remark after the accident, "I don't give a 
 damn for you or your horse," is evidence for the jury of hostility.*^ 
 
 Where an automobile is standing in the street in the daytime and an 
 electric car comes up from behind and runs into it the plaintiff is en- 
 titled to punitive damages.*® 
 
 Penal damages are not recoverable under a statute which does not 
 provide for them but merely refers to another section of the law which 
 does so provide.*' 
 
 § 1764. Province of the jury and court. — "Whether exemplary 
 damages are to be allowed in a case where they are proper is within the 
 discretion of the jury, and this discretion should not be controlled or di- 
 rected by instructions to the jury. * * * This discretion extends 
 to the amount of the damages, and the amount so allowed will not be 
 disturbed on appeal if not so grossly excessive as to indicate prejudice, 
 partiality, or corruption."*^ 
 
 But where there is no evidence given to authorize such damages, 
 or where none are claimed by the plaintiff there can be no assessment 
 of punitive damages. Nor is the discretion of the jury arbitrary and 
 unlimited, "but is to be guided by sound legal principles" and within the 
 legal effect of the evidence before them. In no case is the jury author- 
 ized to go beyond the amount claimed in the complaint.*' 
 
 *2Williams v. Baldrey, Oklahoma 1915, 152 Pac. 814; National Casket Co. v. 
 Power, 137 Ky. 156, 125 S. W. 279; see Walkup v. Beebe, 139 Iowa 395, 116 N. 
 W. 321 ; Wieskofif v. Ritter, Ky. 1906, 97 S. W. 1120. 
 
 «Gaskins v. Hancock, 156 N. C. 56, 72 S. E. 80, i N. C. C. A. loi. 
 
 **Williams v. Benson, 87 Kan. 421, 124 Pac. 531. 
 
 *5Martin v. Garlock, 82 Kans, 266, 108 Pac. 92. 
 
 *6Moody V. Louisville Ry. Co., 153 Ky. 14, IS4 S. W. 384. 
 
 *7Roberts v. Trunk, 179 Mo. App. 358, 166 S. W. 841. 
 
 *8Thompson, Com. on Negligence, 2d ed., sec. 7169; Voorheis, Meas. of Dam- 
 ages, sees. 186, 187; Sedgwick on Damages, 8th ed., sec. 388. 
 
 *9Voorheis, Meas. of Damages, sees. 184, 186. 
 
 "IS 
 
§ 17^5 DAMAGES 
 
 Where there is some evidence of the defendant's disregard of his 
 duty to the public the question may be submitted to the jury of punitive 
 damages for reckless operation of an automobile.''" 
 
 "Whether the evidence tends to show any facts to warrant exemplary 
 damages, is a question for the court to determine by its instructions, 
 but the sufficiency of the evidence to establish such facts is a matter for 
 the jury to consider and determine."'^ 
 
 An instruction to the jury that, under any state of facts, it is their 
 duty to assess exemplary damages, is improper.'^ 
 
 § 1765. Must be pleaded. — When exemplary damages are to be 
 claimed by the plaintiff they must be pleaded. The plaintiff should set 
 forth the acts and omissions which constitute the gross or wanton negli- 
 gence or reckless conduct, and the kind of damages demanded should 
 also appear. And if the defendant is a corporation or an employer, it 
 should be alleged that the act of gross negligence or of recklessness 
 was committed by the agent or servant acting within the scope of his 
 employment.^^ Punitive damages cannot by statute be recovered under 
 a complaint averring simple negligence.^* Double damages must be 
 claimed in the pleadings. ^^ In order to assess double or treble damages 
 the record should show the recovery was had on a count which author- 
 ized it.°* I ' ; ,-, i 
 
 § 1766. Responsibility of employers."^ — "In Cleghorn v. N. Y. 
 Cent. & H. R.,^^ Chief Judge Church says : It is the exception and not 
 the rule that in this class of cases" (negligence of the servant resulting 
 in personal injury) "exemplary damages are allowable" against the 
 master. Sedgwick (on Damages, 8th ed., sec. 378), summarizes the 
 exceptional instances noted by the New York court, in which the master 
 can be so held, as follows : (a) where "the defendant expressly author- 
 ized the act as it was performed, or approved it; (b) or was grossly 
 
 ooBurns v. Kendall, 96 S. C. 38s, 80 S. E. 621. 
 
 siVoorheis, Meas. of Damages, sec. 187; Sedgwick on Damages, 8th ed., sec. 
 
 387. 
 '^Voorheis, Meas. of Damages, sec. 187. 
 58Voorheis, Meas. of Damages, sec. 185. 
 "Bowles V. Lowery, 5 Ala. A. SSS, S9 So. 696. 
 ooDunbar v. Jones, 87 Conn. 253, 87 Atl. 787. 
 
 88Dunbar v.' Jones, 87 Conn. 253, 87 Atl. 787. / 
 
 6'See § 799 et seq. 
 6856 N. Y. 44. 
 
 II16 
 
EXEMPLARY OR PUNITIVE § 1767 
 
 negligent in hiring the agent or servant; (c) or in not preventing him 
 from committing the act."°' 
 
 "The burden of showing authorization or approval by the princpal 
 is on the plaintiff."*" 
 
 This doctrine is not of universal prevalence for in some jurisdictions, 
 the principal, "if liable for compensatory damages, is liable also for 
 exemplary damages, as the agent or servant would be."" 
 
 § 1767. Joint defendants. — "When only one of two or more joint 
 wrongdoers acted in such a way as to render himself liable to exem- 
 plary damages, the plaintiff may have judgment against him for exem- 
 plary damages and against the others for compensatory damages.""^ 
 
 § 1768. Amount recoverable. — There is no fixed standard of 
 measurement to guide or control the jury in assessing the .amount. 
 "There should be the exercise of a sound, conscientious and intelligent 
 discretion" under all the circumstances,'' "commensurate with the 
 nature of the offence.""* 
 
 In states where there are statutes providing damages for injury and 
 death by negligence, the amount of the verdict cannot exceed the amount 
 fixed as a limit in the statute, and if any provision is made therefor it 
 must be arrived at in the manner directed therein. For example, the 
 Massachusetts act fixes a limit in cases of death from negligent act of 
 ten thousand dollars "to be assessed with reference to the degree of cul- 
 pability."" 
 
 As already observed, exemplary damages are to be assessed in addi- 
 tion to the compensatory damages to which the plaintiff proves himself 
 entitled. In actions for the recovery of exemplary damages, the jury, 
 in making up their- verdict, may take into consideration the proper ex- 
 penses of the litigation. It will be remembered that in suits of a com- 
 pensatory nature, a different rule prevails."" But as a general rule 
 
 69See also Shearman & Redf. on Negligence, sth ed., sec. 749. 
 eoSedgwick, Ibid, sec. 378. 
 61/Wrf, 378. 
 
 o^Sedgwick, on Damages, Sth ed., sec. 382. 
 
 «3New Orleans, Etc., R. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785. 
 6*Burkett v. Lanatta, 15 La. Ann. 337; Voorheis Meas. of Damages, sec. 187. 
 s'See § IS4S, where the act is quoted in full, also § I77S ; Searman & Redf. 
 Negligence, Sth ed., sec. 776; Voorheis, Meas. of Damages, sec. 190. 
 ssVoorheis, Meas. of Damages, sec. 184. 
 
 II17 
 
§ 1769 DAMAGES 
 
 counsel fees cannot be considered." Though in some states a different 
 practice obtains.'* 
 
 It is proper to receive evidence of the circumstances of the respective 
 parties with reference to wealth or poverty, business relations, con- 
 dition and situation in life. The reason on which the materiality of such 
 evidence in these cases is based, is stated^' to be that "what would be 
 sufficient damages by way of an example or punishment for a day 
 laborer without wealth, would be nothing by way of example or pun- 
 ishment to a wealthy corporation or individual."'" 
 
 An award of $2,500 as punitive damages where a little girl is bruised 
 but suffers no permanent injury indicates that the jury was moved by 
 passion and prejudice and is excessive.'^ 
 
 § 1769. (i) Mitigation of punitve damages. — It is competent to 
 show the motives and designs of the parties, and it is admissible for 
 the defendant to show that he acted mistakenly from a worthy motive.''' 
 
 All circumstances which negative the idea of malice or show the ab- 
 sence of recklessness or wantonness, or tend to show the exercise of 
 care, are admissible to mitigate or altogther prevent, the allowance of 
 punitive damages. Provocation while not a defence, may be shown in 
 mitigation. In short any thing which tends to show innocence of un- 
 worthy impulse.'^ 
 
 Conversely, the absence of exculpatory circumstances will tend to the 
 aggravation of the damages.''* So hostility either before or after the 
 event, may be shown. ''^ 
 
 § 1770. Enhancement of punitive damages.^"The doctrine of 
 contributory negligence has no application to wilful and malicious in- 
 
 B^Barnard v. Poor, 38 Mass. 378; Lincoln v. Saratoga, Etc., R., 23 Wend. 425 ; 
 Voorheis, Meas. of Damages, sec. 189 ; Sedgwick, on Damages, 8th ed., sec. 234. 
 
 ^^See Sedgwick, section last cited. 
 
 69Voorheis, Meas. of Damages, sec. 784. 
 
 7»See also Sedgwick on Damages, 8th ed., sec. 385 ; Thompson's Com. on Neg- 
 ligence, 2d ed., sec. 7171. 
 
 "Buford V. Hopewell, 140 Ky. 666, 131 S. W. 502. 
 
 '^Sedgwick on Damages, 8th ed., sec. 369; Voorheis, Meas. of Damages, sec. 
 188. 
 
 '^Sedgwick on Damages, 8th ed., sees. 383, 384. 
 
 7*/6t(f, sec. 383. 
 
 "Martin v. Garlock, 82 Kan. 266, 108 Pac. 92; Mitigation of Damages, see 
 further ante, § 1755, et seq. 
 
 II18 
 
Exemplary or punitive § 1771 
 
 juries, except that the person injured can not recover compensatory 
 damages which he has enhanced by his subsequent negHgence."'« 
 
 § 1771. Criminal proceedings."— As a very general rule "the fact 
 that the defendant has already been punished criminally cannot be shown 
 to mitigate damages" of a punitive character." 
 
 In two jurisdictions noted by Sedgwick, namely North Carolina and 
 Texas, evidence of conviction and fine paid may be given in mitigation, 
 and in Quebec "it is an absolute bar to exemplary damages." "Every- 
 where else," continues the learned author, "it is held that the fact that 
 the defendant is liable to a criminal prosecution or has actually paid a 
 fine to the state, can neither bar nor mitigate exemplary damages."" 
 
 § 1772. (2) Punitive statutes. — In a considerable number of 
 states there have been legislative enactments concerning damages in 
 negligence cases, resulting in injuries or death, and regulating their 
 assessment beyond the limits of mere compensation.'" 
 
 Of all such legislation, Mr. Justice Field, in Missouri Pacific R. v. 
 Humes,*^ says, regarding constitutionality and character : 
 
 "The additional damages being by way of punishment, it is 
 clear that the amount may be thus fixed; and it is not a valid 
 objection that the sufferer instead of the state receives them. 
 * * * The statutes of nearly every state in the Union provide 
 for the increase of damages where the injury complained of re- 
 sults from the neglect of duties imposed for the better security 
 of life and property, and make that increase in many cases 
 double, in some cases treble, and even quadruple the actual dam- 
 ages. And experience favors this legislation as the most effi- 
 cient mode of preventing, with the least inconvenience, the com- 
 mission of injuries. The decisions of the highest courts of the 
 states have affirmed the validity of such legislation. The injury 
 actually received is often so small that in many cases no effort 
 
 7«Thompson Com. on Negligence, 2d ed., sec. 247. 
 
 "See § 1759- 
 
 TSVoorheis, Meas. of Damages, sec. 188; Roberts v. Mason, 10 Ohio St. 277, 
 280; Cook V. Ellis, 6 Hill (N. Y.) 466. See Chapter L, Actions Under 
 the Statute. 
 
 ^^Sedgwick on Damages, 8th ed., sec. 3^- 
 
 soMass. R. L,. ch. io6, sees. 72, 73; Act 1906, ch. 463, Part I, sec. 63, as amended 
 in 1907; R. L. ch. 171, sec. 2. 
 
 "115 U. S. 512, 522, 6 S. Ct. no. 
 
 II19 
 
§ 1773 DAMAGES 
 
 would be made by the sufferer, to obtain redress, if the private 
 interest were not supported by the imposition of punitive dam- 
 ages." 
 
 § 1773. Massachusetts rule. — Massachusetts is one of the few 
 states wherein the general doctrine of exemplary damages has found no 
 foothold. Except in cases governed by its peculiar statutes, only the 
 rules regarding aggravation of damages obtain, as is pointed out in an 
 earlier section on that subject.*^ 
 
 Sedgwick*^ reviews the position in this state, as follows : 
 
 "The doctrine of exemplary damages has never been recog- 
 nized in Massachusetts. In that state the 'manner and manifest 
 motive' of a tort may be sTiown as tending to prove mental suffer- 
 ing. In Hawes v. Knowles, 114 Mass. 518, Gray, Chief Justice 
 said, 'In an action of tort for a wilful injury to the person, the 
 manner and manifest motive of the wrongful act may be given 
 in evidence as affecting the question of damages ; for when the 
 merely physical injury is the same, it may be more aggravated 
 in its effects upon the mind if it is done in wanton disregard of 
 the rights and feelings of the plaintiff, than if it is the result of 
 mere carelessness'; and it was held that the wantonness must 
 be such as to cause additional pain to the plaintiff in body or 
 mind." 
 
 VIII. Damages foR "Pecuniary Injuries" Under the Statutes Relating to 
 Death of the Injured Person 
 
 § 1774. In general. 
 
 1775. Assessment of "pecuniary damages." 
 
 1776. Where persons interested will receive property as heirs on death. 
 
 1777. Insurance. 
 
 1778. Massachusetts rule. 
 
 § 1774. In general. — In a previous chapter the statutes referred to 
 were the subject of consideration.'* Damages recoverable in actions 
 of this character are of a nature peculiarly their own. They fall neither 
 within the classification strictly defined as compensatory, nor that de- 
 scribed as exemplary, for reasons already pointed out. ( See definition, 
 
 s^'See § 1761 ; also Chapter L on Actions under the Statute § 1545 et seq. 
 8»0n Damages, 8th ed., sec. 358. 
 8*Chap. I.. 
 
 1120 
 
IN ACTIONS FOR DEATH § 1775 
 
 Sec. 1713)-^ It is to be borne in mind that what is said in the following 
 sections on this point, does not relate to the subject as it is presented 
 by the Massachusetts statute, regarding negligent acts resulting in 
 death, for, as appears in a later section, in this state the damages are 
 to be assessed according to the degree of defendant's culpability and as 
 punitive damages. '° 
 
 Shearman & Redf . on Negligence,*" say, concerning damages recover- 
 able under statutory provisions of this character : 
 
 "Following the English decisions under the English statute 
 * * * it is uniformly held that statutes which give a right 
 of action for death, create an entirely new cause of action, and 
 do not revive one which the decedent had. * * * f^^ gjjg, 
 lish statute, although not explicit on this point has always been 
 construed as excluding all damages other than ior pecuniary in- 
 jury, and most American statutes giving a right of action for 
 death have expressly adopted this rule. * * * The courts 
 have uniformly construed this language" (pecuniary injury) "as 
 restricting the damages recoverable in such an action to an 
 amount which will fairly compensate the persons for whose 
 benefit the suit was brought for their loss in a strictly pecuniary 
 sense by the death of the injured person, or, in other words, 
 that nothing can be allowed for in damages which are not of 
 definite pecuniary value. * * * j^. follows, as a matter of 
 course, that the plaintiff in an action of this kind, under the stat- 
 utes * * * mentioned, cannot recover exemplary damages. 
 Nominal damages may be recovered in New York and most 
 American states; but not in Michigan or Texas; nor in Eng- 
 land." 
 
 § 1775. Assessment of "pecuniary damages." — ^Under this head. 
 Shearman & Redfield,'' discuss the elements which enter into the assess- 
 ment of damages of this sort. The authors say : 
 
 "The pecuniary damage, which alone can be recovered in 
 most of the states for the death of any person, must be some- 
 thing of definite, and almost of commercial value. It is not 
 necessary, 'however, to show that the deceased was under any 
 legal obligation to the next of kin. If they had a reasonable 
 expectation of pecuniary advantage from the continuance of his 
 
 w§ 1778. 
 
 86Sth ed., 766. 
 
 s^Secs. 769 and 770, 5th ed. 
 
 1121 
 
 71 
 
§ 1 775 DAMAGES 
 
 life, they may recover for it. If he was in the habit of making 
 them presents at regular intervals, this would constitute a valid 
 basis for damages. Much more are damages recoverable where 
 the deceased was legally bound to render service to the next of 
 kin, etc., as in the case of a minor child whose services belong to 
 his parents." 
 
 Continuing, the same authors suggest the following subjects for con- 
 sideration in estimating the verdict: 
 
 (a) Prospective damages, to the extent of probable contin- 
 uance of life, regarding which mortality tables are competent 
 as we have elsewhere seen ; 
 
 (b) Evidence of deceased's earnings, or as to his capacity to 
 earn an income. But the court must call the attention of the jury 
 distinctly to the prospect that decedent's earning capacity would 
 have lessened in his declining years; 
 
 (c) The jury may estimate the amount which the deceased 
 would have accumulated and left to his family had his life not 
 been shortened, and may allow this as damages ; 
 
 (d) Evidence of decedent's health and habits is admissible at 
 the instance of either party. 
 
 (e) Nothing can be allowed for decedent's sufferings; nor 
 for grief or distress of relatives ; nor for loss of society, except 
 as between husband and wife. 
 
 (f)' The defendant may show, if he can, that the next of kin 
 were not dependent on deceased for support in any degree, nor 
 had any reasonable expectation of pecuniary benefit from de- 
 ceased in any degree, or any other pecuniary interest in his life, 
 in which event only nominal damages can be recovered. 
 
 (g) It is not necessary that the evidence should define with 
 accuracy, the items on which the claims for damage are based,*' 
 
 (h) Expenses of deceased's last sickness and death cannot be 
 allowed, unless the next of kin would have become legally lia- 
 ble to meet them. 
 
 (i) "The defendant cannot be permitted to prove, for any 
 purpose, that he paid for the support or care or defrayed the 
 funeral expenses of the decedent." 
 
 The case generally quoted and cited, both as to the interpretation 
 of the statute and the method of assessing damages thereunder, is that 
 of Oldfield V. N. Y. & Harlem R.«» 
 
 88/&trf, sec. 775- 
 
 8914 N. Y. 310, affirming 3 E. D. Smith, 103 referred to at some length in 
 
 §§ 1360, IS34. 
 
 1 122 
 
IN ACTIONS FOR DEATH § 1776 
 
 The jury have a large discretion in assessing damages, and the court 
 will not interfere with it unless they have clearly abused such discre- 
 tion. They cannot be called upon to itemize the assessment. They may 
 use their own knowledge in dealing with matters of common experi- 
 ence, of earning capacity, etc., but they are not at liberty to award 
 damages for which there is no foundation in the evidence. And where 
 the statute limits the liability, the amount of the verdict cannot exceed 
 the statutory provision.*" 
 
 The application of the foregoing rules is illustrated by the case of 
 Thies V. Thomas,*^ which was brought under the New York statute, to 
 recover damages for pecuniary injuries arising from the death of a 
 child struck by defendant's automobile. The court charged the jury 
 that the action being wholly under the statute, damages must be esti- 
 mated as the statute provides ; further, that the jury might award 
 both compensatory and pecuniary damages, and, in awarding the lat- 
 ter, they might take into consideration the value of decedent's life to 
 his friends, but as against this, they were to remember that children, 
 under the law, are entitled to support during minority, and so the pa- 
 rents, being saved this expense, may not have sustained any pecuniary 
 loss. The court also told the jury that under no circumstances, could 
 they award exemplary damages, that sympathy and prejudice were to be 
 excluded, as also were the pain, suffering, mental anguish and distress 
 experienced by deceased after the injury and before his death. The 
 jury found for plaintiff in the sum of $3,125. These instructions should 
 be read in connection withOldfield v. N. Y. & Harlem R., supra." 
 
 Five thousand dollars for the death of a young man with a wife and 
 child is not excessive.'' 
 
 § 1776. Where persons interested will receive property as heirs 
 on death.— In an action for death it is a defense to show ma: the con- 
 tributions which the deceased person, a married woman, had made to 
 
 soShearman & Redf. on Negligence, Sth ed., sec. 775- See also Goodes v. 
 Lansing, Etc., Traction Co., 150 Mich. 494, "4 N. W. Repr. 338; Burvant v. 
 Wolfe, 126 La. 787, 52 So. Repr. 1025. 
 
 9177 N. Y. Supp. 276. 
 
 92See also Baltimore v. Maryland, 166 Fed. Repr. 641 (Md.), 1908; Burvant 
 V. Wolfe, 126 La. 787, 52 So. Repr. 1025. 
 
 aaWilliams v. Kansas City, Mo. App. 191S, 177 S. W. 783- 
 
 1 123 
 
§ 1777 DAMAGES 
 
 her children came out of her separate property which they would get 
 on her death as her heirs but this must be definitely and exactly shown.^* 
 § 1777. Insurance."^ — In Smith's Leading Cases,'° it is said con- 
 cerning this topic : 
 
 "But where the claim for damages is made under Lord Camp- 
 bell's Act, as the claim is restricted to the actual pecumary loss 
 sustained by the claimant, the acceleration of the receipt of in- 
 surance money may be taken into account in estimating the 
 damages, though the amount received cannot.^' 
 
 § 1778. Massachusetts rule. — For a second time we find Massa- 
 chusetts occupying a peculiar position. As has already been seen in 
 cases where most of the states apply the doctrine of exemplary damages, 
 Massachusetts does not recognize it, and in cases of actions for death 
 under the statute, where most of the states apply the doctrine of dam- 
 ages for "pecuniary injuries," Massachusetts resorts to the rules of 
 punitive damages. This no doubt grows out of the peculiar wording of 
 the statute making the damages depend upon the degree of culpability 
 of the defendant instead of upon the "pecuniary injury" sustained by 
 those in whose behalf the action is brought.^* In case of Hudson v. 
 Lynn & B. R.," Mr. Justice Loring speaks of the Massachusetts statute 
 regarding damages in cases of death resulting from negligence,^"" as a — 
 
 "System of imposing a punishment for wrongfully causing 
 death in place of giving to the family of the deceased an action 
 for compensation." 
 
 And, in another place in the same opinion he remarks, concerning 
 the damages in such cases : 
 
 "These acts give a civil remedy for the recovery of a penalty 
 imposed by way of punishment. * * * Where a defendant 
 
 »*Wescoat v. Decker, 85 N. J. L. 716, 90 Atl. 290. 
 
 9»S'ee § 1758, Insurance, also § 1769. 
 
 98Vol. 2, nth ed., p. 293. 
 
 »THicks V. Newport R. Co., 4 B. & S. 403n ; Grand Trunk R. Co. v. Jennings, 
 13 App. Cas. 800. 
 
 ssCompare statutes of New York and Massachusetts, sees. 883a, 883b. 
 
 9»i8s Mass. S12, 71 N. E. 66. 
 
 "•"Rev. IyEws, Ch. 172, § 2, as amended by Ch. 37s, Laws 1907, quoted in full 
 §883b. 
 
 1 124 
 
VERDICTS § 1779 
 
 is to be punished for a wrongful act done by him, the question 
 and the only question is how serious was the defendant's wrong- 
 doing, and the amount of the injury inflicted upon deceased 
 (except so far as it gives character to the wrongdoing of the de- 
 fendant) is altogether immaterial." 
 
 For a more extended consideration of this topic, the reader is referred 
 to the chapter on actions for death under the statute. See also similar 
 statutes providing liability of counties, cities, towns and personSs 
 charged with the duty of keeping the highways in repair, in cases of 
 death "by reason of a defect or a want of repair of or a want of sufficient 
 railing in or upon" any highway.^ 
 
 IX. VeRDICTS 
 
 § 1779. In relation to negligence. 
 
 1780. Setting aside verdicts. 
 
 1781. Modifying verdicts. 
 
 1782. Compromise verdict. 
 
 1783. Special verdicts inconsistent with general verdict. 
 
 § 1779. In relation to negligence. — The verdict of the jury is con- 
 clusive of the fact of negligence,^ and the court will indulge all reason- 
 able presumptions to support a general verdict.^ 
 
 § 1780. Setting aside verdicts. — While the quantum of damages is 
 peculiarly within the province of the jury, "an uncontrolled discretion 
 is not vested in them."* 
 
 The court "may set aside the verdict and order a new trial when 
 verdicts are against the evidence, * * * or are so inadequate or so 
 excessive in amount, as to justify the inference that the jury were in- 
 fluenced by passion or prejudice rather than by a desire to do justice 
 between the parties."^ 
 
 This discretion, however, the court will not lightly exercise. Mere 
 difference of opinion is not sufficient. "The court cannot substitute 
 its own sense of what would be proper, for the verdict of the jury."" 
 
 ^Mass. Rev. Laws, Chap. 51, sec. 17. 
 2Walkup V. Beebe, 139 Iowa 395, "6 N. W. Repr. 321. 
 sUnion Traction Co. v. Howard, 173 Ind. 335, 90 N. E. Repr. 764. 
 *KJng V. Consol. Traction Co., 33 Pittsb. L. J. N. S. (Pa.) 138. 
 ^Miller V New York Taxicab Co., App. Term 1910, 120 N. Y. Supp. 899. 
 e§ 890 See also Polsky v. N. Y. Transp. Co., 96 N. Y. App. Div. 613, 88 N. 
 Y. S. io24; Stewart v. Baruch, 103 N. Y. App. Div. 577, 93 N. Y. S. 161; Bush 
 
 1 125 
 
§ 1 78 1 DAMAGES 
 
 It may, however, be stated as a general proposition, that the verdict 
 of a jury should be set aside to prevent injustice.' 
 
 § 1781. Modifying verdicts. — In Murray v. Buel,* Mr. Justice 
 Orton discusses the power of the court and the exercise of discretion in 
 this respect, and remarks as follows : 
 
 "Counsel having raised the question whether the trial court 
 had the right to require the plaintiff to remit the excessive dam- 
 ages as a condition of denying the motion for a new trial on 
 that ground, it may be proper to say that such right is un- 
 doubted."' 
 
 § 1782. Compromise verdict.^" — For circumstances under which 
 such verdicts will be sustained, see Lawson v. Wells Fargo.^^ 
 
 § 1783. Special verdicts inconsistent with general verdict. — ^A 
 general verdict will be sustained unless there is an irreconcilable con- 
 flict between it and the answers to interrogatories in the special ver- 
 dict.^^ 
 
 A general verdict for the plaintiff may be sustained though a special 
 verdict may contain findings that the little boy who was run over did 
 not run into the roadway in front of the automobile as other evidence 
 might have explained the apparent inconsistency.^' 
 
 V. Fourcher, 3 Ga. App. 43, 59 S. E. 459; Benoit v. Miller, 67 Atl. Repr. 87 (R. I.), 
 1907; Burvant v. Wolfe, 126 La. 787, 52 So. Repr. 1025; Thompson, Com. on 
 Negligence, 2d ed., sec. 7348; Sedgwick on Damages, 8th ed., sees. 1319, 1320; 
 Voorheis, Meas. of Damages, sec. 188; Gregory v. Slaughter, 124 Ky. 345, 99 
 S. W. 247. 
 
 'McCarthy v. Nisken, 22 Minn. 90, 92, Gilfillan, C. J. 
 
 874 Wis. 14. 
 
 9See also Rogers v. Mann, 70 Atl. Repr. 1057 (R. I.), igo8; Cain v. Winter- 
 steen, 144 Mo. App. i, 128 S. W. Repr. 274, 1910. 
 
 loSee § 1716, Quantum meruit. 
 
 "113 N. Y. Supp. 647, App. Term. 
 
 i^East V. Amburn, 47 Ind. App. 530, 94 N. E. 895. 
 
 isAmerican Motor Car Co. v. Robbins, 181 Ind. 417, 103 N. E. 641, 8 N. C. C. 
 A. 372. 
 
 1 126 
 
APPENDIX A 
 To Chapter XVIII, Law of the Road 
 
 MASSACHUSETTS STATUTES DECLARING THE "LAW OF THE 
 
 ROAD" EXHIBITED AS REPRESENTING THE STATUTE LAW 
 
 GENERALLY EXISTING IN THE AMERICAN STATES 
 
 Revised Laws, entitled "Of the Law of the Road," Chapter 54. 
 
 Sec. I. "When persons meet on a bridge or way, traveling 
 with carriages, wagons, carts, sleds, sleighs, bicycles or other 
 vehicles, each shall seasonably drive his carriage or other vehicle 
 to the right of the middle of the traveled part of such bridge or 
 way, so that their respective carriages or other vehicles may pass 
 without interference." 
 
 Sec. 2. "The driver of a carriage or other vehicle passing a 
 carriage or other vehicle traveling 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 not of sufficient width for the two vehicles to 
 pass, the driver of the leading one shall not wilfully obstruct the 
 other." 
 
 Sec. 3. (Requires the use of at least three bells "attached to 
 some part of the harness," in all cases where sleighs are driven.) 
 
 Sec. 4. "Whoever violates the provisions of this chapter shall, 
 upon complaint made within three months after the commission 
 of the offense, forfeit not more than twenty dollars, and be lia- 
 ble in an action commenced within twelve months after the date 
 of said violation for all damages caused thereby." 
 
 Act of 1908, Chapter 512: 
 
 Sec. I. "Whenever on any bridge or way public or private 
 there is not an unobstructed view of the road for at least one 
 hundred yards, the driver of every vehicle shall keep his vehicle 
 on the right of the middle of the traveled part of the bridge or 
 way, whenever it is safe and practicable so to do." 
 
 Sec 2 "Whoever violates the provisions of this act shall upon 
 complaint made within three months after the commission of the 
 offense, forfeit not more than twenty dollars and be liable in an 
 
 1 127 
 
APPENDIX A 
 
 action commenced within twelve months after the date of said 
 violation for all damages caused thereby." 
 
 Strbet Cars 
 
 Act of 1913, Chapter 223 : 
 
 Sec. I. Chapter fifty- four of the Revised Laws, entitled "Oi 
 the Law of the Road," is hereby amended by adding at the end 
 thereof the following new section, to be numbered five : — Section 
 5. For the purpose of this act and in construing rules, by-laws 
 and regulations concerning the use and operation of vehicles on 
 the streets and ways in this commonwealth, street railway cars or 
 other cars moving upon rails shall not be considered to be ve- 
 hicles unless it is otherwise expressly so provided. 
 
 Street Regui^ations^ 
 
 The control of street traffic in Boston heretofore vested in the board 
 of aldermen and city council, is now lodged in the. street commissioners 
 of the cityj with power to make all rules and regulations on the subject 
 not inconsistent with law. All ordinances inconsistent with the regu- 
 lations of the street commissioners "shall be null and void." All regu- 
 lations of the street commsisioners shall be enforced by the police.^ 
 
 An Act to. Provide for Excluding Vehicles from Certain Streets 
 IN THE City of Boston 
 
 Mass. Act of 1913, Chapter 432 : 
 
 Sec. I. The board of street commissioners of the City of 
 Boston may make rules and regulations to exclude or divert ve- 
 hicles of any or all kinds, except street railway cars, from streets 
 or parts of streets during such hours of the day as the board may 
 deem proper, and may prescribe penalties for violation of such 
 rules, not exceeding twenty dollars for every such violation. 
 
 Sec. 2. Before any rules are adopted by the board of street 
 commissioners to carry out the provisions of this act, an adver- 
 tised public hearing shall be given. In the advertisement for the 
 hearing the streets from which it is proposed to exclude or di- 
 
 iSee Appendix C, "Street Traffic Regulations." 
 2 Act of 1908, Chap. 447, sec. i. 
 
 1 128 
 
STATUTi; LAW OF THE ROAD 
 
 vert vehicular traffic shall be named, and also the hours of the 
 proposed exclusion. After the adoption of such rules and before 
 they shall become operative, they shall be advertised at least once 
 a week for two weeks in two or more daily newspapers pub- 
 hshed m the qity of Boston. f t- f 
 
 Sec. 3. Any such rules adopted hereunder shall be enforced 
 by the police department of the City of Boston. 
 
 Approved April j, 1913. 
 
 Right of Way 
 
 United States Mail 
 
 U. S. Revised Statutes : 
 
 Sec. 3995: "Any person who shall knowingly and wilfully 
 obstruct or retard the passage of the mail, or any carriage, horse, 
 driver, or carrier carrying the same, shall for every such offense 
 be punishable by a fine."^ 
 
 See United States v. Kirby, 74 U. S. (7 Wall.), 482. 
 
 Militia 
 
 Mass. Revised Laws, Chap. 16 : 
 
 Sec. 143 : "United States forces or troops, or any portion of 
 the militia parading or performing any duty according to law, 
 shall have the right of way in any street or highway, through 
 which they may pass, provided the carriage of the United States 
 mails, the legitimate functions of the police, and the progress and 
 operations of fire engines and fire departments shall not be inter- 
 fered with thereby." 
 
 Note — Re-enacted in Chap. 604, Act of 1908, sec. 166. 
 
 Mass. Act of 1912, Chap. 147: 
 
 Sec. I. The governor, under such regulations as he may pre- 
 scribe, by and with the consent of the council, may exclude traffic 
 from highways during target practice or maneuvers of the 
 Massachusetts volunteer militia, whenever he deems that the 
 convenience or safety of the public so requires. 
 
 3 See United States v. Kirby, 74 U. S. (9 Wall.) 482. 
 *Note— Re-enacted in Chap. 604, Act of 1908, sec. 166. 
 
 1129 
 
APPENDIX A 
 
 Fire Department 
 Mass. Revised Laws, Chap. 32. 
 
 Sec. 37. "The officers and men of the fire department of any 
 city or town, with the engines and apparatus thereof, shall have 
 the right of way while going to a fire or responding to an alarm, 
 through any street, lane or alley in said city or town, * * * 
 Whoever wilfully and maliciously obstructs or retards the pas- 
 sage of an engine or other apparatus of a fire department while 
 so going to a fire shall be punished by a fine of not more than 
 fifty dollars or by imprisonment for not more than three months." 
 
 Boston Protective Department 
 
 Mass. Act of 1912, Chap. 152: 
 
 Sec. 3. The officers and men of the Boston Protective De- 
 partment, with their teams and apparatus, shall have the right 
 of way, while going to a fire, or to any building which is, or the 
 contents of which are, exposed to damage, loss or injury as here- 
 inbefore set forth, through any street, lane or alley in the City 
 of Boston, subject to such rules and regulations as the city coun- 
 cil and the fire commissioners may prescribe, and subject also to 
 the rights of the Boston fire department, and any violation of the 
 street rights of the Boston Protective Department shall be pun- 
 ished in the same manner as is provided for the punishment of 
 violations of the rights of the Boston fire department in chapter 
 three hundred and seventy-four of the acts of eighteen hundred 
 and seventy-three. 
 
 Rights of Way of Police 
 
 Mass. Act of 1889, Chap. 57 : 
 
 "The officers and men of the police department of the City 
 of Boston, with the patrol_ wagons and ambulances thereof, shall 
 have the right of way through any street, lane or alley in said 
 city, subject to the rights of the Boston Fire Department, and 
 the Boston Protective Department ; and whoever wilfully or ma- 
 liciously obstructs or retards the passage of such patrol wagons 
 and ambulances as aforesaid shall be punished by a fine not 
 exceeding fifty dollars, or by imprisonment in jail not exceeding 
 three months." 
 
 1 130 
 
STATUTE tAW OP THE ROAD 
 
 Ambulances 
 Mass. Act of 1904, Chap. 161 : 
 
 "Hospital ambulances shall have the same right of way which 
 fire engines or police patrol wagons now have in the streets of 
 all cities and towns." 
 
 Funerals 
 Mass. Revised Laws, Chap. 212 : 
 
 Sec. 34 : "Whoever wilfully interrupts or by fast driving or 
 otherwise in any way disturbs a, funeral assembly or procession, 
 shall be punished by imprisonment for not more than thirty days 
 or by a fine of not more than fifty dollars." 
 
 Steam Rahroads 
 
 Mass. Act. of 1906, Chap. 463, Part II, sec. 155, amending Revised 
 Laws, Chap. 1 1 1 : 
 
 Sec. 196: "A railroad corporation * * * shall not wil- 
 fully or negligently obstruct or unnecessarily or unreasonably 
 use or occupy a highway, townway or street, or in any case ob- 
 struct, use or occupy it with cars or engines for more than five 
 minutes at one time; and if a highway, townway or street has 
 been thus used or occupied with cars or engines, the railroad 
 corporation * * * shall not again use or occupy it with the 
 cars or engine of a freight train until a sufficient time, not less 
 than three minutes, has been allowed for the passage across the 
 railroad of such travelers as were ready and waiting to cross 
 when the former occupation ceased." 
 
 The penalty for violation is forfeiture of one hundred dollars. 
 
 Mass. Act of 1906, Chap. 463, Part II, sec. 237, amending Revised 
 Laws, Chap. 11 1 : 
 
 Sec. 254: "Whoever enters upon or crosses a railroad at a 
 private way which is closed by gates or bars, and neglects to 
 close them securely, shall forfeit not less than two, nor more than 
 ten dollars for each offense, and be liable for any damage which 
 results therefrom." 
 
 1 131 
 
APPENDIX A 
 
 Mass. Act of 1906, Chap. 463, Part II, sec. 147, amending Revised 
 Laws, Chap. 1 1 1 : 
 
 Sec. 168: "Every railroad corporation shall cause a bell 
 
 * * * and a steam whistle to be placed on each locomotive 
 engine passing upon its railroad ; and such bell shall be rung, or 
 at least three separate and distinct blasts of such whistle sounded 
 at the distance of at least eighty rods from the place where the 
 road crosses upon the same level, and highway, townway or 
 traveled place over which a signboard is required to be main- 
 tained * * * and such bell shall be rung or such whistle 
 sounded continuously or alternately until the engine has crossed 
 such way or traveled place." 
 
 Mass. Act of 1906, Chap. 463, Part II, sec. 149, amending Reversed 
 Laws, Chap. 1 1 1 : 
 
 Sec. 190: "Every railroad corporation shall cause boards 
 
 * * * at such height as to be easily seen by travelers 
 
 * * * containing on each side in capital letters at least nine 
 inches long, the following inscription : railroad crossing, look 
 OUT FOR THE ENGINE, to be placed and constantly maintained 
 across each highway or townway where it is crossed by the rail- 
 road at the same level ; or the corporation may substitute there- 
 for warning boards on each side of the crossing." 
 
 Sec. 151 amending sec. 192 (Revised Laws), provides for 
 gates, flagmen or electric signals when necessary for the better 
 protection of the public. 
 
 Street Railways 
 
 Mass. Act of 1906, Chap. 463, Part. Ill, sec. 83, amending Revised 
 Laws, Chap. 1 12 : 
 
 Sec. 47: "The board of aldermen of a city, or the selectmen 
 of a town, may, subject to the approval of the railroad commis- 
 sion, establish such regulations requiring the motorman or con- 
 ductor to give notice or warning of the approach of street cars, 
 as shall in their opinion best secure the unobstructed use of the 
 tracks and the free passage of cars." 
 
 Mass. Act of 1906, Chap. 463, Part III, sec. 85, amending Revised 
 Laws, Chap. 112: 
 
 Sec. 48: "Whoever wilfully obstructs a street railway com- 
 pany in the legal use of a railway track, or delays the passing 
 
 1132 
 
STATUTE LAW OF THE ROAD 
 
 of its cars thereon, or aids in, or abets such obstruction or delay, 
 shall be punished by a fine of not more than five hundred dollars 
 or by imprisonment for not more than three months. Whoever 
 commits any of said acts in such a manner as to endanger the 
 life or safety of persons conveyed in or upon said car, or aids or 
 abets therein, shall be punished by imprisonment in the state 
 prison for not more than ten years, or by a fine of not more than 
 one thousand dollars." 
 
 Mass. Act of 1906, Chap. 463, Part. Ill, sec. 88, amending Revised 
 Laws, Chap. 112: 
 
 Sec. 49 : "If a street railway company, its agent or servant, 
 wilfully or negligently obstructs a street, highway or bridge, or 
 hinders the passing of carriages over the same, * * * such 
 company shall be punished by a fine of not more than five hun- 
 dred dollars, and such agent or servant shall be punished by a 
 fine of not more than ten dollars, or by imprisonment for not 
 more than three months." 
 
 1133 
 
APPENDIX B 
 To Chapter XVIII, Law of the Road 
 
 DEFINITIONS OF WORDS AND TERMS USED TO EXPRESS PLACES 
 
 SET APART OR USED FOR TRAVEL EITHER ON 
 
 FOOT OR BY VEHICLE 
 
 (Alphabetically arranged) 
 
 Alley. — ^A narrow passage or way in a city, distinct from a public street. 
 — ^Webster, Century, Standard Diets.; i Words & Phrases Jud. 
 Def. 341. 
 See Street. 
 Avenue. — ^A principal walk. — Webster Diet. 
 
 A wide street; in some American cities and towns indicating the 
 longest and generally the widest streets, often shaded ; in others 
 having no special reference to the character of the street. — Century 
 Diet. 
 A broad thoroughfare ; the word is often used in the United States 
 without reference to the character of the street. — Standard Diet. 
 Boulevard. — A street or walk encircling a town, or street, which is of 
 special width or given a parklike appearance by reserving spaces 
 at the sides or center for shade trees; generally not for heavy 
 teaming. — Century and Standard Diets. 
 The statutes mention them in connection with parks. — Rev. Laws, 
 Chap. 28, sec. 3 ; Act of 1894, Chap. 288, sec. i. 
 Bridge. — The statute expressly includes public bridges in the highway. 
 — Rev. Laws, Chap. 8, sec. 5, CI. 4. 
 They are to be kept in order by the city or town in which they are 
 
 situated. — Rev. Laws, Chap. 51, sees, i and 2. 
 As to county bridges see Rev. Laws, Chap. 48, Sees. 58 to 64. 
 "Bridge" has been defined as "a building of brick, wood, or iron, 
 erected across a river, ditch, valley or other place otherwise im- 
 passable, for the convenience and benefit of travelers * * *to 
 facilitate the passage over the same. The term 'bridge' is a com- 
 prehensive one and embraces every structure in the nature of a 
 
 "34 
 
DEFINITIONS 
 
 bridge, whether over a large stream or a mere culvert or sluce- 
 
 way."— Angell on Highways, 3d ed., sec. 35. 
 A "private bridge" is one erected for the use of one or more private 
 
 persons, although it may occasionally be used by the public."— Ibid 
 See "Highway." 
 
 Causew^ay.— A made or raised road, as over marshy ground or through 
 shallow water; also a sidewalk above the street level— Standard 
 Diet. 
 
 Or above the natural level of the ground. — Century EHct. 
 Causeways are to be kept in order by the city or town in which they 
 are situated. — Rev. Laws, Chap. 51, sec. i. 
 
 "Center of the road." — Revised Laws (Mass.), Chapter 54, speaks of 
 it as the "middle of the traveled part," and the court has con- 
 strued the words "traveled part" to mean "that part which is 
 usually wrought for traveling."— Clark v. Commonwealth, 21 
 Mass. 125 (quoted § 242). 
 
 In New York the court speak of it as the center of the worked part 
 of the road, irrespective of the smooth or traveled track, although 
 the whole of the smooth or traveled path may be on one side of that 
 center. — Earing v. Lainsingh (N. Y.), 7 Wend. 185, 187. 
 
 In case the "wrought part" is obscured from the eye, then the beaten 
 or actually traveled path is to be followed. — Jacquith v. Richard- 
 son, 49 Mass. 216 (quoted § 242). 
 
 See "Road," "Roadway." 
 County road. — Generally speaking, such roads are ways or highways 
 laid out and constructed under the control of county officials. They 
 may be laid out from town to town, or within the same town. — 
 Rev. Laws, Chap. 48. 
 
 See "Highway." 
 Court. — An inclosed space ; an uncovered area shut in by the walls of 
 a building or buildings, or a space opening from a street and nearly 
 surrounded by houses ; a broad alley. — Webster and Century Diets. 
 
 A short street or a blind alley.— Standard Diet. ; 2 Words & Phrases 
 Jud. Def. 1672; Rev. Laws, Chap. 51, sec. 26; see Com. v. Gam- 
 mons, 40 Mass. 202. 
 
 See "Street." 
 
 "35 
 
APPENDIX B 
 
 Cul-de-sac. — ^A street or alley which has no outlet at one end ; a blind 
 alley ; a way or passange that leads nowhere. — Century and Stand- 
 ard Diets. 
 See Corcoran v. City of New York, i88 N. Y. 13,1, 1907. 
 Culverts. — Cattle passes; or other passageways "under a highway." 
 When constructed or maintained by public avthority they are "a 
 part of the highway." — Rev. Laws, Chap. 48, sec. 57. 
 See "Highway." 
 
 Curb. — As used in Massachusetts city ordinances, means the curb- 
 stones "which lie between the sidewalk and the part of the street 
 devoted to carriage travel." — Dickinson v. Worcester (City), 138 
 Mass. 562. 
 
 See "Sidewalk," "Roadway." 
 Ditch — Drain. — "The words 'ditch' and 'drain' have no technical or 
 exact meaning. They both may mean a hollow space in the 
 ground, natural or artificial, where water is collected or passes off. 
 And in this sense of the words, the defective place in the road as 
 described by the witnesses, might not inaptly, be termed a ditch 
 or drain." — Goldwaith v. Bridgewater, 71 Mass. 64. 
 Driveway. — ^A road for driving. — Standard and Century Diets. 
 
 Mentioned in the statute in connection with parks. — ^Rev. Laws, 
 Chap. 28, sec. 3. 
 Esplanade. — "Any open level space or course near a town, especially 
 a kind of terrace along the seaside for public walks or drives." — 
 Century Diet. 
 
 So also Webster, Worcester and Standard Diets. 
 Highway. — ^A road or way open to the use of the public ; a main road 
 or thoroughfare. — ^Webster Diet. 
 
 A road or way whether for foot passengers, beasts of burden, or 
 vehicles, or all, over which all persons, as members of the public, 
 have a right to pass. — Century Diet. 
 
 The word highway as used in the statute is applied to ways "from 
 town to town or from place to place in the same town." — Rev. 
 Laws, Chap. 48, sec. i. 
 
 In a popular sense the word includes all public traveled ways whether 
 county or town, to markets and public places. — Harding v. Med- 
 way, 51 Mass. 469; Flagg v. Hudson, 142 Mass. 286. 
 
 1 136 
 
DS:PINIT10NS 
 
 Streets of a city have always been regarded as highways.-Fales 
 V. Dearborn, 18 Mass. 345 ; Stone v. Bean, 81 Ma^s. 42 
 
 The term "highway" includes a town way.-Jones v. Andover, 23 
 Mass. 59; Com. v. Boston, 33 Mass. 444. 
 
 "The word 'highway' may include a county bridge, and shall be 
 equivalent to the words 'county way,' 'county road,' and 'common 
 road. —Rev. Laws, Chap. 8, sec. 5, CI. 4. 
 
 A way may be a highway although it lies wholly in one town and is 
 not connected with any county road.— Blackstone v Worcester 
 108 Mass. 68. ' 
 
 See "Road," "Way," "Public Road," and "Public Way," "Street " 
 
 "Thoroughfare." 
 See Motor Vehicle Act of 1909, Chap. 534, sec. i. 
 Intersecting way.— "Shall mean any way which joins another at an 
 
 angle, whether or not it crosses the other."— Motor Vehicle Act 
 
 of 1909, Chap. 534, sec. i. 
 
 Landing place. — A public landing place is not a way. — Com. v. Tucker, 
 19 Mass. 44. 
 But see "Wharves." 
 Lane. — In a general sense a narrow passageway. A passageway be- 
 tween fences and hedges which is not traveled as a highroad, or 
 similarly between trees, rocks or other natural objects. — Webster 
 and Century Diets. 
 Distinguished from alley, the latter ordinarily being between build- 
 ings in a city or town. — Standard Diet. 
 The word "Lanes" when used as applicable to Boston is "deemed to 
 be synonymous with public ways or highways." — Com. v. Boston, 
 33 Mass. 445. 
 See "Road," "Street." 
 Park. — A tract of land set apart for ornament or recreation. — Standard 
 and Century Diets. 
 See Rev. Laws, Chap. 28. 
 Parkways. — The statute speaks of them in connection with public 
 
 ways. — Rev. Laws, Chap. 52, sec. 12. 
 Passageway. — A road, avenue, path or way affording means of com- 
 munication ; street, alley. — Century and Standard Diets. 
 See "Street." 
 
 1137 
 
 72 
 
APPENDIX B 
 
 Path. — A trodden way ; a footway.— Webster and Century Diets. 
 
 Generally speaking it is a neighborhood road running from one pub- 
 lic road or place to another place or public road. 
 
 In olden days it was apt to be used as synonymous with "road," but 
 the modern practice has limited its use. 
 
 A "path" may be public or private. — 6 Words & Phrases Jud. Def . 
 SS76 and 5535. 
 
 See "Street." 
 
 Pent roads. — Called in the early statutes "private roads." "A road 
 could not be a pent road if it was not shut up or closed at its 
 terminal points; and the term pent ('penned, shut up, confined 
 or closed') is employed to distinguish such a road from an open 
 road." In Vermont "all pent roads are public highways * * * 
 that is to say they may be used by all — ^but they are not open 
 highways." — Wolcott v. Whitcomb, 40 Vt. 40. 
 
 Pike. — A turnpike road. — Webster and Standard Diets. 
 An abbreviation of turnpike. — Century Diet. 
 See "Turnpike." 
 
 Place. — A broad way in a city; an open space; an area; a court, or 
 short part of a street open only at one end. — ^Webster and Century 
 Diets. 
 Especially, a short or subordinate street. — Standard Diet. 
 
 Private way. — A right of private passage over private ground. — ^Web- 
 ster and Century Diets. 
 
 Strictly — a way laid out through private property for passage and 
 repassage of persons or vehicles or both, by private individuals, 
 which has not been accepted by public authority. — Com. v. Gam- 
 mons, 40 Mass. 202 ; Baker v. Dedham, 82 Mass. 393 ; Kilion v. 
 Kelley, 120 Mass. 47. 
 
 It will be presumed that the use by the public of a private way, is 
 merely permissive. — Weldon v. Prescott, 187 Mass. 415 ; Same v. 
 Oilman, 187 Mass. 415. 
 
 The town cannot close such a way leading to private grounds nor 
 be made responsible for damages caused by defects therein. — 
 Alger V. Lowell, 85 Mass. 402 ; Warner v. Holyoke, 112 Mass. 362. 
 
 1 138 
 
DEFINITIONS 
 
 A town may by prescription acquire a private way for town purposes. 
 
 it can only become a public way as provided by statute.-^Deerfield 
 
 V. Conn. River R. R., 144 Mass. 334. 
 "Private ways for the use of one or more inhabitants" of a town 
 
 may be laid out, altered or repaired by the town.— Rev. Uws, 
 
 Chap. 48, sec. 65. 
 
 In such cases they differ from town ways only in the method of ap- 
 portioning land damages.— Flagg v. Flagg, 82 Mass. 175. 
 
 Private ways laid out under statutory provision are public ways.— 
 Denham v. Bristol Co., 108 Mass. 202; Davis v. Smith, 13,0 Mass. 
 113- 
 
 See "Street," "Road." 
 
 Public way ; public road.— A road or way open to all the people, shared 
 in or participated in by the people at large; not limited or re- 
 stricted to any particular class in the community. — Century Diet. ; 
 6 Words & Phrases Jud. Def., 5819. 
 
 Public roads are public ways in the state, from place to place. 'They 
 are such roads as are open to the public, and are under the control 
 of governmental instrumentalities, as counties, townships, road dis- 
 tricts, and local subdivisions of like character. They are not in- 
 frequently under the direct care of the state itself and supported 
 by the general treasury of the commonwealth. All public roads 
 are ways set apart by the public, and maintainable at the public ex- 
 pense either local or general. 
 
 This seems to be the sense in which the words are used in the statute. 
 — Rev. Laws, Chaps. 8, 48, 51, 52. 
 
 In the law concerning "Railroads and Railroad Corporations," a 
 "public way means any way laid out by public authority." — Rev. 
 Laws, Chap, iii, sec. i, as amended by Act of 1906, Chap. 463, 
 sec. I, Part II, and sec. i. Part III. 
 
 See ."Highway," "Road," "Way." 
 Reservation. — "A Public Reservation," as used in Massachusetts, an 
 open space for exercise and recreation for the public. — Chap. 407, 
 Act 1903, sec. 4. 
 Road. — A place where one may ride; an open or public passage for 
 vehicles, persons and animals ; a track for travel forming a means 
 of communication between one city, town or place, and another. 
 
 "39 
 
APPENDIX B 
 
 The word is generally applied to highways, and as a generic term, 
 it includes highway, street and lane. — Webster and Standard Diets. 
 
 It may be public or private. — Century Diet. ; 7 Words & Phrases Jud. 
 Def. 6256. 
 
 "The term 'road' or 'common road' not only in common parlance, but 
 in many of the early statutes is used synonymously with 'highway.' 
 The word is generic and embraces every species of public ways." 
 — ^tedman v. Southbridge, 34 Mass. 162. 
 
 "Road" as used in the Revised Laws providing that persons traveling 
 on a road, on meeting, shall drive to the right of the center of the 
 
 " traveled part of the road, is not necessarily limited to a public 
 highway. The term "road," used without qualification, applies in 
 its ordinary acceptation, to a place set apart and appropriated either 
 de jure or de facto for the purpose of passing with carriages, 
 whether by public authority or by the general license and permis- 
 sion of the owners. — Com. v. Gammons, 40 Mass. 202. 
 
 The word "road" as used in chapter 476, Acts of 1893, section 15, 
 organizing the Massachusetts Highway Commission, "includes 
 every thoroughfare which the public has a right to use." 
 
 It not only means highways or townways, but means any way, 
 whether public or private. — ^Jacquith v. Richardson, 49 Mass. 215. 
 
 See "Center of the Road," "Highway," "Private Way," "Thorough- 
 fare," "Way," "Roadway," "Pent Road." 
 Roadway. — "A road — especially that part of a road over which vehicles 
 pass." — Standard Diet. 
 
 "A road — especially the part traveled by carriages." — ^Webster's Diet. 
 
 The Century Dictionary is to the same effect. 
 
 See "Sidewalk," "Curb," "Road." 
 Sidewalk. — "The term sidewalk shall mean a sidewalk laid out as such 
 by a city, town or district, and any walk in a city or town which is 
 reserved by custom or specially prepared for the use of pedestrians. 
 It shall not include crosswalks nor footpaths on ways lying out- 
 side of the thickly settled part of cities and towns which are worn 
 only by travel, and are not improved by such cities or towns or by 
 abutters." — Rev. Laws, Chap. 52, sec. 12. 
 Square. — A quadrilateral area, rectangular or nearly so, with buildings 
 or building-sites, on every side ; also an open space formed by the 
 
 1 140 
 
DEFINITIONS 
 
 intersection of streets. It may be planted with trees, shrubs or 
 grass and open to the public— Century Diet. 
 
 The statute speaks of "squares" in connection with public ways.— 
 Rev. Laws, Chap. 52, sec. 12. 
 State highways. — Is any way constructed or received by the State 
 Highway Commission and paid for or kept in repair at the ex- 
 pense of the commonwealth. — Rev. Laws, Chap. 47, sec. 6. 
 
 Municipal authorities have police jurisdiction over all state highways 
 within their several limits. — Rev. Laws, Chap. 47, sec. 14. 
 
 See "Highway," "Public Way," "Road," "Way." 
 Street. — ^A public, highway, now commonly a thoroughfare in a city or 
 village, bordered by dwellings or business houses. — Webster Diet. 
 
 Whether paved or unpaved, ordinarily including a sidewalk or side- 
 walks ; a main way as distinguished from a lane or alley. — Century 
 
 Diet. - 
 
 "The term 'street' for the purposes of 'cities' shall include highways, 
 townways, footways, private ways, courts, lanes, alleys and passage 
 ways." — Rev. Laws, Chap. 51, sec. 26. 
 
 See "Road," and those names mentioned in the statute last quoted. 
 Thoroughfare. — A frequented way. — Standard Diet. 
 
 A passage through. — ^Webster Diet. 
 
 The word "thoroughfare" is to be distinguished from highway. It 
 is a broader expression and covers any place not a cul-de-sac, where 
 there is a use for public passage and repassage from point to point, 
 regardless of whether it has or has not been formally designated 
 as a public highway.— Bateman v. Bluck, 4 Eng. L. & Eq. 69; 
 Wood V. Veal, 5 Barn. & A. 456 (Eng.). 
 
 The American authorities seem to follow the English rule.— Bou- 
 vier's Law Diet. (Rawle), 11 16. 
 
 It is more nearly akin to the meaning of the word "Road," which 
 is defined as being "an open way or public passage ; ground ap- 
 propriated" for travel. Generically includes highway, street, lane, 
 * * * May refer to a traveled place or track, without regard to 
 the nature of the use, or to the question of any right thereto in the 
 public."— Anderson's Diet, of the Law, 908. 
 
 See 8 Words & Phrases Jud. Def . 6962. 
 
 See "Avenue," "Highway," "Road." 
 
 1 141 
 
APPENDIX B 
 
 Town ways. — "Townways for the use of the town," may be laid out, 
 altered or repaired by a town. — Rev. Laws, Chap. 48, sec. 65; 
 Parks V. Boston, 25 Mass. 218; Monterey v. Berkshire, 61 Mass. 
 400. 
 See "Highway," "Public Way," "Public Road," "Street," "Way." 
 "Traveled part" of the road.— The beaten or used part of the road, 
 as distinguished from the rough or unused part. The part worked 
 into shape by labor or use. — Clark v. Com., 21 Mass. 126; Jacquith 
 V. Richardson, 49 Mass. 214-216. 
 See "Wrought part." 
 
 Turnpike. — Loosely, any great, through road, especially one formerly 
 
 kept up by the toll system. 
 Strictly, a road on which there are toll gates ; a toll road. — Standard 
 
 Diet. 
 Literally,, the word means "gate" such as are used to obstruct pas- 
 sengers until toll is paid. — 8 Words & Phrases Jud. Def. 7139. 
 In Massachusetts and New York, a turnpike is a public highway, 
 
 established by public authority for public use and is to be regarded 
 
 as a public easement. — Gilmore v. Holt, 21 Mass. 258; Com. v. 
 
 Wilkinson, 33 Mass. 177; Packhard v. Howe,- 53 Mass. 198; 
 
 Rogers v. Bradshaw, 20 Johns (N. Y.) 742. 
 Way. — ^^That by, upon or along which one passes or progresses; place 
 
 of passing, passage, road, street, track or path of any kind. 
 It is a generic word denoting any line for passage or conveyance. — 
 
 Webster and Century Diets. ; Dennis v. Wilson, 107 Mass. 593 ; 
 
 Words & Phrases Jud. Def. 7417. 
 A "way" may be a highway although it lays wholly in one town. — 
 
 Blackstone v. Worcester, 108 Mass. 68. 
 Strictly speaking, the modern use of the word does not import a 
 
 highway in the usual sense of the latter word. — 8 Words & Phrases 
 
 Jud. Def. 7417. 
 Ways may be open and dedicated to public use which have not be- 
 come public highways. — Rev. Laws, Chap. 48, sec. 98. 
 See "Road," "Thoroughfare." 
 Wharves. — "Along which there are streets and passages, though all 
 
 private property," are subject to the rules of the road. — Com. v. 
 
 Gammons, 40 Mass. 202. 
 See "Landing Place." 
 
 1 142 
 
DEFINITIONS 
 
 "Wrought part" of the road. — The worked, traveled or beaten or used 
 part, as distinguished from the rough or unused part. The part 
 worked into shape by labor or use. — Clark v. Commonwealth, 21 
 Mass. 126; Jacquith v. Richardson, 49 Mass. 214 and 216. 
 See "Traveled part." 
 
 "43 
 
APPENDIX C 
 
 To Chapter XVIII, Law of the Road 
 
 STREET TRAFFIC REGULATIONSi 
 
 The automobile laws of many states provide for signals from horse- 
 drawn vehicles, but do not describe what form those signals shall take. 
 There are often occasions when automobiles and vehicles of all kinds, 
 ought to signal their intention in warning to each other; for exam- 
 ple, when unexpectedly stopping or being about to back in a crowded 
 street, those in the rear are not warned and complications follow. An 
 authoritative and generally known system of signals has been found to 
 work well. Before the rule was adopted and strictly enforced in New 
 York city, requiring all vehicles to stop with the right side to the curb- 
 stone, serious blockades were of daily occurrence. Since then, and in 
 considerable degree in consequence of that rule, long continued block- 
 ades have almost ceased, and as drivers have grown accustomed to 
 working under it, no hardship has been found to result. The general 
 advantage to all, results in a greater advantage to each one, than the 
 occasional momentary inconvenience to the individual. 
 
 In the large cities of the country, traffic in the streets is under the 
 immediate direction of the police, acting by virtue of local regulations, 
 prescribed by state or local authorities, and adapted to local conditions. 
 Such regulations are usually published in the form of printed slips 
 which can be readily secured in most instances, on application to the 
 police. 
 
 No more fertile source of anxiety to the intelligent and well-meaning 
 motor vehicle operator exists, than the uncertainty as to what his fel- 
 low traveler is going to do, either as the result of ignorance or care- 
 lessness. An universal understanding that a rigid adherence to rule 
 is to be observed on the part of all, except possibly in cases of extreme 
 emergency, would solve the difficulty, and generally serve to prevent 
 
 iSee State v. Larrabee, 104 Minn. 37, 115 N. W. Repr. 948, 1908; also Com. v. 
 Newhall, 205 Mass. 344, 91 N. E. 206. 
 
 1 144 
 
TRAPIfIC REGULATIONS 
 
 the occurrence of the so-called emergency itself. Many accidents cer- 
 tainly would be averted and much anxiety saved. 
 
 As an example of succint and sane traffic regulations we quote those 
 of New York and Philadelphia as follows :— 
 
 Department of Public Safety 
 
 BUREAU OF POLICE 
 
 Philadelphia 
 
 General Order No. 237 , August 5, 1916 
 
 TRAFFIC REGULATIONS 
 
 I. On and after Monday, August 7, 1916, the following regulations, 
 as set forth in the Ordinance of Councils, approved July 27, 1916, will 
 be in force. 
 
 II. Horns, Bells or Signals and Muffler Cut-outs. — No unnecessary 
 sounding of horns, bells or signals must be made. Muffl!er cut-outs 
 must not be used. 
 
 III. Lights on Motor Vehicles. — Every automobile must have two 
 white lights visible not less than 200 feet away in direction in which 
 automobile is proceeding. 
 
 Every motorcycle must have one light visible not less than 200 feet 
 away in direction in which motorcycle is proceeding. 
 
 No light must be used which blinds or dazzles other users of the high- 
 way. 
 
 IV. Rate of Speed. — Fifteen miles per hour is the speed limit through- 
 out the City of Philadelphia on all highways on which signs which read 
 as follows have been placed : 
 
 "Danger; Run Slow." 
 "End of Fifteen-Mile Limit." 
 
 V. The Stopping of Traffic. — Where streets are marked with white 
 lines from curb to curb all vehicles must stop on the near side of white 
 lines when travel at right angles has right of way. 
 
 Whenever a trolley car stops at any street crossing in the City of 
 Philadelphia for the purpose of taking on or discharging passengers, all 
 vehicular traffic at said crossing, upon the street where said car is 
 stopped, shall stop with said trolley car, and the vehicular traffic shall 
 
 "45 
 
APPENDIX C 
 
 not again proceed until any passenger who may have alighted shall 
 have reached the side of the road, or any person about to board the car 
 shall have done so, or until the car has moved, unless officer on duty 
 directing traffic gives signal for such traffic to proceed. 
 
 All vehicles must stop at signal of police officer who is in uniform 
 or exhibits badge or other sign of authority. 
 
 VI. Vehicles Passing Bach Other. — All vehicles, overtaken by others, 
 which later are traveling at the legal rate of speed, must, when signalled 
 to do so, turn to the right of the centre of the street leaving a free 
 passage to the left for the more swiftly moving vehicles and the opera- 
 tor of the faster vehicles must pass to the left. 
 
 VII. Stopping or Changing Direction of Vehicle. — If a driver wishes 
 to stop or change the direction of his vehicle he must, at a point ten 
 feet from where he intends to stop or turn, extend his arm beyond the 
 outside limit of his vehicle in a horizontal position. 
 
 VIII. Parking of Vehicles. — No vehicle is permitted to remain on the 
 following highways of the City of Philadelphia longer than the time 
 actually necessary for loading and unloading passengers and mer- 
 chandise between the hours of nine o'clock A. M. and six o'clock P. M. 
 * * * 
 
 Vehicles must not remain on the following highways of the City of 
 Philadelphia longer than fifteen minutes at any time of the day. * * * 
 
 No vehicle at any time of the day shall be permitted to remain on the 
 following highways of the City of Philadelphia for a longer period than 
 thirty minutes. * * * 
 
 No vehicle at any time of the day shall be permitted to remain on 
 the following highways of the City of Philadelphia for a longer period 
 than one hour. * * * 
 
 Wherever vehicular travel moves in one direction only on any of the 
 highways mentioned in the foregoing sections of this ordinance, no 
 vehicle shall be permitted to remain on said highway during the time 
 or times mentioned in this ordinance, otherwise than close to the right- 
 hand curb of said highway, and facing in the direction in which ve- 
 hicular travel moves. 
 
 The provisions of this ordinance shall not in any manner interfere 
 with any regulation or regulations prescribed by any ordinance of the 
 Councils of the City of Philadelphia relating to markets or to stands 
 for hackney coaches or other vehicles, nor shall this ordinance apply 
 
 1 146 
 
TRAFFIC REGULATIONS 
 
 to any vehicle engaged in loading or unloading goods, wares an4 mer- 
 chandise on the highways mentioned herein, provided such vehicle or 
 vehicles remain on the said highways only for so long a time as may be 
 necessary for transacting the business in which they are actually en- 
 gaged. 
 
 IX. Penalty. — Any person, firm or corporation violating any of the 
 provisions of this ordinance shall be subject to a fine of twenty-five 
 (25) dollars for the first offense, fifty (50) dollars for the second of- 
 fense and one hundred (100) dollars for each subsequent offense. The 
 said fines shall be levied and collected as like fines are now levied and 
 collected by law, and any police officer of the City of Philadelphia is 
 hereby authorized to arrest the owner, driver or person in charge of any 
 said vehicle for any violation of any of the provisions of this ordinance. 
 
 Police Department, City of New York 
 
 REGULATIONS FOR STREET TRAFFIC 
 
 Corrected to March 18, 1915 
 
 COPIES MAY BE OBTAINED AT ANY POLICE STATION 
 DEFINITIONS 
 
 (a) The term "street" shall apply to that part of a public highway 
 intended for vehicles. 
 
 (b) The term "one-way traffic" street shall apply to a street when 
 and where vehicular traffic is restricted to one direction. 
 
 (c) The term "curb" shall apply to the boundaries of a street. 
 
 (d) The term "horse" shall apply to any draft animal or beast of 
 burden. 
 
 (e) The term "vehicle" shall apply to a horse, and to any convey- 
 ance, except a baby carriage. 
 
 (f) The term "street car" shall apply to any conveyance confined to 
 
 tracks. 
 
 (g) -The term "driver" shall apply to the rider, driver or leader of a 
 horse, to a person who pushes, draws, propels, operates, or who is in 
 charge of a vehicle. 
 
 (h) The term "parked" shall apply to a waiting vehicle and to wait- 
 ing vehicles drawn up alongside of one another not parallel to the curb. 
 
 1147 
 
APPENDIX C 
 
 RESPECTIVE DUTIES OF DRIVERS AND' PEDESTRIANS 
 
 (a) Streets are primarily intended for vehicles, but drivers must ex- 
 ercise all possible care not to injure pedestrians. 
 
 (b) Pedestrians should:— ist, Avoid interference with vehicular 
 traffic and to this end not step from the sidewalk without first looking 
 to see what is approaching; — 2nd, Cross the street at a right angle, 
 preferably at a crosswalk and, where a traffic policeman is stationed, 
 wait for his signal; — 3rd, Stand on the sidewalk or close to the track 
 when waiting for a car ; — 4th, Face the front of the car when alighting 
 and observe the traffic on the right before moving to the sidewalk, and 
 if, passing behind the car observed the traffic in both directions. 
 
 (c) Pedestrians should keep to the right and not stop so as to ob- 
 struct a sidewalk or crosswalk or an entrance to a building. 
 
 (d) Pedestrians on streets with narrow sidewalks should use the 
 sidewalk on their right. 
 
 The following regulations for vehicles shall be observed by the drivers 
 thereof, who shall also comply at all times with any direction by voice, ' 
 hand or whistle from any member of the Police Force as to starting, 
 stopping, slowing, approaching or departing from any place, the man- 
 ner of taking up or setting down passengers, and the loading or un- 
 loading of anything. 
 
 Police Officers may temporarily divert traffic to avoid congestion. 
 
 Article I. Passing, Turning, Keeping to the Right, Backing and 
 
 Following 
 
 Section i. A vehicle meeting another shall pass to the right. 
 
 Sec. 2. A vehicle overtaking another shall pass to the left and not 
 pull over to the right until entirely clear of it; except in passing a 
 street car when it shall keep to the right if distance between car and 
 curb permits. 
 
 Sec. 3. A vehicle turning into a street to the right shall turn the 
 corner as near the right-hand curb as practicable. 
 
 — — \ fr"*— 
 1148 
 
TRAFFIC RFGUIvATlONS 
 
 thf noii nf"^- 7^^'^t'"'"l"^ '''*° ^ '*'"""* *° *^ l^ft shall pass around 
 the point of intersection of the two streets. 
 
 ^<^' I L AfOT THIS WAy J I 
 
 ^ if- 
 
 Sec. 5. A vehicle turning from one side to the other of a street shall 
 do so. 
 
 Sec. 6. A vehicle shall keep as near as practicable to the right-hand 
 curb so as to leave the center of the street clear for overtaking traffic— 
 the slower the speed the nearer the curb. 
 
 Sec. 7. A vehicle on a street divided longitudinally by a parkway, 
 walk, sunkenway, viaduct, isle of safety, or cab stand, shall keep to the 
 right of such division. 
 
 Sec. 8. A vehicle passing around a circle shall keep to the right 
 from entrance to exit. 
 
 Sec. 9. A vehicle shall not back to make a turn if it obstructs traffic 
 but shall go around the block or to a street wide and clear enough for 
 the purpose. 
 
 Sec. 10. A vehicle shall not follow another too closely for safety. 
 
 ArTici:<E II. Stopping, Standing, Waiting and Parking 
 
 Section i. A vehicle shall not stop with its left side to the curb ex- 
 cept on a "one-way traffic" street. 
 
 Sec. 2. A vehicle waiting at the curb shall promptly give way to a 
 vehicle arriving to take up or set down passengers. 
 
 Sec. 3. A vehicle shall not be left in such position as to prevent an- 
 other from moving up parallel and close to the curb in front of an en- 
 trance to a building, nor so as to prevent another already stopped near 
 the curb from moving away, nor within ten feet of a fire hydrant. 
 
 Sec. 4. A vehicle shall not be parked or otherwise stopped so as to 
 prevent the free passage of other vehicles in both directions at the 
 same time or in one direction in a "one-way traffic" street. 
 
 Sec. 5. A vehicle, unless parked, shall not stand backed up at any 
 
 1 149 
 
APPENDIX C 
 
 angle to a curb, except while actually loading or unloading, and if 
 horse-drawn and with four wheels the horses shall stand parallel with 
 the curb, faced in the direction of traffic. 
 
 Sec. 6. A vehicle, unless a street car, shall not stop in any street ex- 
 cept near the curb and then so as not to obstruct a crossing or crosswalk 
 except to allow another vehicle or pedestrian to cross its path. 
 
 Sec. 7. A street car shall not stop within an intersection of streets 
 nor within five feet of a street car ahead nor so as to obstruct a cross- 
 walk. 
 
 Article III. Overtaking Street Cars 
 
 A vehicle in overtaking or meeting a street passenger car which has 
 been stopped for the purpose of receiving or discharging a passenger 
 or passengers, shall not pass or approach within eight (8) feet of such 
 car so long as such car is stopped. 
 
 Article IV. Right of Way 
 
 Section i. When in the performance of duty, the following vehicles 
 shall have the right of way: U. S. Mail, Police, Fire, Fire Patrol, 
 Bureau of Buildings, Emergency Repair of Public Service Corpora- 
 tions, Ambulances ; also the Military. 
 
 Sec. 2. Conditions warranting. North and South traffic shall have 
 the right of way. 
 
 Sec. 3. A vehicle in front of a street car shall immediately turn out 
 upon signal. 
 
 Sec. 4. A vehicle shall not so occupy any street as to obstruct traffic. 
 
 Sec. 5. A vehicle, on the approach of fire apparatus, shall immedi- 
 ately draw parallel and near to the curb and stop. 
 
 Sec. 6. A street car, on the approach of fire apparatus, shall stop so 
 as to not interfere with its passage. 
 
 Article V. Signals 
 
 Section i. A vehicle's driver when slowing or stopping shall give 
 timely signal by hand or whip, or in some other unmistakable manner. 
 
 Sec. 2. A vehicle's driver when about to turn either from a stand- 
 still or while in motion, shall give timely signal by hand or whip or in 
 
 1150 
 
TRAFFIC REGULATIONS 
 
 some other unmistakable manner to indicate the direction of the turn. 
 1 his IS especially important when turning to the left. 
 Sec. 3. A vehicle before backing shall give ample warning 
 Sec. 4. Police whistle signals shall indicate : 
 
 One blast— N. and S. traffic stops and E. and W. proceeds. 
 Two blasts— E. and W. traffic stops and N. and S. pro- 
 ceeds. 
 
 Three or more blasts— The approach of fire apparatus or 
 other danger. 
 Sec.^ 5. A vehicle shall be equipped with lights and sound signals as 
 prescribed by-law. 
 
 Sec. 6. Sound signals are prohibited except for necessary warning. 
 
 Article VI. Speed 
 
 Section i. A vehicle shall not exceed the rate of speed established 
 by law and shall proceed with great caution, especially in making turns, 
 in crossing other streets and crosswalks, and in passing other vehicles. 
 
 Sec. 2. A vehicle shall not cross a sidewalk to or from an alley, lot 
 or building faster than a horse walks. 
 
 Article VII. Restrictions in regard to vehicles 
 
 Section i. The use of a vehicle is prohibited when it is so con- 
 structed, enclosed, equipped or loaded as to be dangerous, retard traffic, 
 or prevent the driver from having a view sufficient for safety. 
 
 Sec. 2. The use of a vehicle is prohibited when it is so loaded with 
 iron or other materials as to create loud noises while in transit. 
 
 Sec. 3. A vehicle when loaded with any material extending beyond 
 its rear shall be provided with a red flag by day and a red light at night 
 on the extreme rear end of such load. 
 
 Sec. 4. No one less than sixteen years of age shall drive a vehicle 
 intended for commercial purposes. 
 
 Sec. 5. No one shall ride upon the rear of a vehicle without the 
 driver's consent nor with any part of his body protruding. 
 
 Sec. 6. A vehicle unless confined to tracks shall not tow more than 
 one other vehicle and the connection sh^ll be not longer than sixteen 
 feet. 
 
 Sec. 7. Coasting is prohibited when dangerous. 
 
APPENDIX C 
 
 Sec. 8. The use of a motor muffler cut-out is prohibited. 
 Sec. 9. Dense smoke from motors is prohibited. 
 
 Article VIII. Control, Treatment and Condition of Horses 
 
 Section i. A horse shall not be unbridled, nor left unattended in a 
 street or unenclosed space without being securely fastened, unless har- 
 nessed to a vehicle with wheels so secured as to prevent its being 
 dragged faster than a walk. 
 
 Sec. 2. A driver shall continuously hold the reins in his hands while 
 riding, driving, or leading a horse. 
 
 Sec. 3. No one shall over-load, over-drive, over-ride, ill-treat or un- 
 necessarily whip any horse. 
 
 Sec. 4. No one shall crack or so use a whip as to excite any horse 
 other than that which he is using, or so as to annoy, interfere with or 
 endanger any person. 
 
 Sec. 5. No one shall use a horse unless it is fit for its work, free 
 from lameness or sores likely to cause pain, and from any vice or dis- 
 ease likely to cause accident, injury or infection. 
 
 Police Department, City of New York 
 
 New York, September 30, 1914. 
 
 AN ORDINANCE to amend an ordinance entitled "An Ordinance rela- 
 tive to Speed Regulations, proposed by the Special Committee on 
 Speed Regulations," adopted April 15, 1913, and approved April 29, 
 
 1913, as amended by an ordinance adopted November 25, 1913, and 
 approved December 3, 191 3, and by an ordinance adopted March 10, 
 
 1914, and approved March 18, 1914. 
 
 Be it Ordained by the Board of Aldermen of the City of New York, 
 as follows: 
 
 Section i. The ordinance entitled "An Ordinance relative to Speed 
 Regulations, proposed by the Special Committee on Speed Regulations," 
 adopted April 15, 1913,, and approved April 29, 1913, as amended by 
 an ordinance adopted November 25, 1913, and approved December 3, 
 1913, and by an ordinance adopted March 10, 1914, and approved March 
 18, 1914, is hereby further amended to read as follows : 
 
 I. Rates of Speed, Limitations, Presumptions. — No person shall oper- 
 ate, drive or propel, and no owner thereof riding thereon or therein 
 
 1152 
 
TRASSIC RBGUI,ATI0NS 
 
 shall cause or permit to be operated, driven or propelled, on any pub- 
 lic highway in The City of New York, any bicycle, tricycle, velocipede, 
 motorcycle, motortricycle, motor delivery wagon, or motorvehicle how- 
 ever propelled, or any vehicle drawn by horses or other animals, reck- 
 lessly or negligently, or at a 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 fifteen (15) 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 twenty 
 (20) miles per hour shall constitute a rate of speed and manner of 
 driving prohibited as aforesaid and in violation of the provisions of this 
 section; provided further, however, that a rate of speed exceeding 
 twenty-five (25) miles per hour on public highways where the same 
 pass through country or outlying sections which are substantially un- 
 developed and sparsely settled, shall constitute a rate of speed and man- 
 ner of driving prohibited as aforesaid and in violation of the provisions 
 of this section. 
 
 2. Turning Corners, Overtaking or Meeting Street Cars. — In turning 
 a corner of meeting or intersecting public highways the person operat- 
 ing, driving or propelling any vehicle subject to the provisions of section 
 one (i) of this article shall not proceed, nor shall the owner of any 
 such vehicle riding thereon or therein, cause or permit the same to pro- 
 ceed at a rate of speed greater than four (4) miles per hour ; and in 
 overtaking or meeting a street passenger car which has been stopped 
 for the purpose of receiving or discharging a passenger or passengers, 
 no such vehicle aforesaid shall pass or approach within eight (8) feet 
 of said street car so long as the same is so stopped and remain stand- 
 ing for the purpose aforesaid. 
 
 3. Approaching Bridges, Passing Public Schools. — ^Upon approach- 
 ing a bridge, or in passing a public school on school days between the 
 hours of eight (8) o'clock ante-meridian and four (4) o'clock post- 
 meridian, the person operating, driving or propelling any vehicle sub- 
 ject to the provisions of section one (i) of this article, shall not pro- 
 ceed, 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 ten 
 (10) miles per hour. 
 
 3a. Congested Streets.— In the thickly populated residential sections 
 
 "S3 
 
 73 
 
APPENDIX C 
 
 of the City, the Police Commissioner is hereby authorized and empow- 
 ered to cause signs to be erected or maintained in any street thereof, 
 at any time of the day or night when such street shall be congested by 
 traffic or thronged by children, which shall be affixed to stanchions on 
 the curb or other conspicuous places, and shall indicate that the speed 
 limit in such street shall be not more than 8 miles per hour. No per- 
 son operating, driving or propelling any vehicle, subject to the provi- 
 sions of section one (i) of this article, shall proceed, nor shall the 
 owner of any such vehicle riding thereon or therein cause or permit the 
 same to proceed at a greater speed than eight (8) miles per hour upon 
 any portion of any street so restricted during the time when any such 
 sign shall be erected and maintained thereon. 
 
 4. Application of sections i, 2, 3 and 3a. — Nothing contained in any 
 of the provisions of section one (i) as to specific rates of speed, or in 
 any of the provisions of section two (2), section three (3) or section 
 (3a) shall apply to vehicles which run only on rails and tracks; or to 
 any of the following vehicles, when the same are responding for 
 emergency work in case of fire, accident, public disaster or impending 
 danger, to wit : wagons, trucks and apparatus of the Fire Department, 
 of the Insurance Patrol, of the Police Department, of the Bureau of 
 Buildings and of the MiUtary, emergency repair wagons of PubUc 
 Service Corporations and ambulances. 
 
 5. Violations, Punishment for First, Second, Third and Subsequent 
 Offenses.— Any person who shall operate, drive or propel and also any 
 owner thereof riding thereon or therein who shall cause or permit any 
 vehicle subject to the provisions of section one (i) of this article, to 
 be operated, driven or propelled in violation of any of the provisions of 
 this article, shall, upon conviction for the first offense, be punished by 
 a fine of not less than twenty-five (25) dollars, or more than one hun- 
 dred (100) dollars, or by imprisonment for a term of not less than 
 two (2) days nor more than fifteen (15) days, or by both; and shall 
 upon conviction for the second offense, within one (i) year from the 
 commission of the first offense, be punished by a fine of not less than 
 fifty (50) dollars, nor more than one hundred (100) dollars, or by im- 
 prisonment for a term of not less than three (3) days, nor more than 
 thirty (30) days, or by both; and shall upon conviction for the third 
 offense and for each and every offense subsequent thereto, withm one 
 (I) year from the commission of the first offense, be punished by a fine 
 
 "54 
 
TRAFFIC REGUI<ATIONS 
 
 of one hundred (lOo) dollars, or by imprisonment for a term of not 
 less than five (s) days nor more than sixty (60) days, or by both. 
 
 Section 2. This ordinance shall take effect immediately. 
 
 Adopted by the Board of Aldermen July 7, 1914. 
 
 Approved by the Mayor August 14, 1914. 
 
 "55 
 
APPENDIX D 
 
 HEADLIGHT REGULATION 
 
 The common use of powerful headlights has led to so much con- 
 fusion and danger that various attempts have been made to alleviate 
 the situation. We quote the rules in Massachusetts and the District 
 of Columbia as an example of such regulation. 
 
 District of Columbia 
 
 STREET TRAFFIC REGULATIONS AS AMENDED TO MAY 27, 1816. 
 
 Section 39. It shall be unlawful to use any acetylene or electric 
 headlight or sidelight on the streets, avenues or public highways of the 
 District of Columbia unless the rear reflectors are removed from the 
 same, or the front glass or electric light bulb either ground or covered 
 with muslin, paper or other material, of sufficient density to prevent 
 the light being dazzling or blinding to persons using the streets, or un- 
 less equipped with anti-dazzling device or devices which have been 
 approved by the Major and Superintendent of Police. 
 
 RULES AND REGULATIONS CONCERNING LIGHTS ON 
 MOTOR VEHICLES 
 
 In Board of Massachusetts Highway Commission, 
 
 October 27, 1915. 
 
 In accordance with the provisions of section 2^, chapter 534, of the 
 Acts of the year 1909, the following rules and regulations concerning 
 lights on motor vehicles are hereby adopted by the Massachusetts High- 
 way Commission : — 
 
 Wherever there is not sufficient light, within the limits of the high- 
 way location, to make all vehicles, persons, or substantial objects clearly 
 visible within said limits for a distance of at least 150 feet, the white 
 lights which a motor vehicle is required to display by section 7 of 
 chapter 534 of the Acts of 1909 shall, when said vehicle is in motion, 
 
 1156 
 
H^ADtlGHT REGULATIONS 
 
 throw sufficient light ahead to show any persons, vehicle, or substantial 
 object upon the roadway straight ahead of the motor vehicle for a dis- 
 tance of at least 150 feet. Any light thrown directly ahead or side- 
 wise shall be so arranged that no dazzUng rays from it or from any re- 
 flector shall be at any time more than three and a h^lf feet above the 
 ground on a level road at a distance of 50 feet or more ahead of said 
 vehicle, and said light shall be sufficient to enable the operator of the 
 motor vehicle to see any person, vehicle, or substantial object upon the 
 roadway or side thereof, for 10 feet on each side of the motor vehicle 
 ID feet ahead of said vehicle. 
 
 This regulation shall take effect on and after the first day of January, 
 in the year 1916. 
 
 "57 
 

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 1 162 
 
Speed and Lights. 
 
 Careful and prudent, not exceedin 
 30. State law requires lights o 
 horse vehicles. No state law coi 
 ering non-glare lights. 
 
 Reasonable and proper. Built u; 
 sections 10; other portions 
 municipalities 15. No state lav 
 covering non-glare lights or light 
 on horse vehicles. 
 
 Reasonable and proper, not exceed- 
 ing 30. City limits 10; curves, 
 etc., 754. No state^ law covering 
 non-glare lights or lights on horse 
 vehicles. 
 
 Built up sections S; elsewhere in 
 municipalities 15; elsewhere 20. 
 No state law covering non-glare 
 lights or lights on horse vehicles. 
 
 i 
 I 
 
 s 
 
 p 
 
 Careful and prudent, not exceeding 
 25. No state law covering non- 
 glare lights or lights on horse ve- 
 hicles. 
 
 Reasonable and proper; 24 unless 
 otherwise sign-posted. No state 
 law covering non-glare lights or 
 lights on horse vehicles. 
 
 1 
 
 i 
 
 14 
 
 Front and rear. 
 Cr.- BI. 
 
 Rear. 
 BI.— W. 
 
 Front and rear. 
 Bk.— YI. 
 
 Front and rear. 
 Bk.— W. 
 
 Rear. 
 BI.— W. 
 
 Front and rear. 
 Ed.— W. 
 
 Front and rear. 
 Dr.— Bk. 
 
 c 
 
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 Exempt for period 
 granted by visi- 
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 granted by visi- 
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 Exempt for period 
 granted by visi- 
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 Exempt for period 
 granted by visi- 
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 granted by visi- 
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 Annually, Sec. of State. To 25 H. 
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 P. $15: 50 H. P. and over $25. 
 After Aug. i half fees. Funds di- 
 vided half to state road mainte- 
 nance and repair and b»lf to coun- 
 ty treasurers for construction and 
 improvement; less admin. 
 
 Annually, Sec. of State. To 25 H. 
 P. $5; to 40 H. P. $?.so; over 40 
 H. P. $10. Between March 1 and 
 June 30, half fee. Eighty per 
 cent, to county of source for road 
 fund. 
 
 Annually. Sec. of State. $3. Fees 
 to county of source for repairs 
 and maintenance of main traveled 
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 Annually, Sec. of State. $5. Fees 
 to state highway department for 
 repair and maintenance, less 
 admin. 
 
 Annually, Dep. of Highways. 50c. 
 per H. P. first year; zd year 40c. 
 per H, P.; 3d year 30c. per H. P. 
 ^ach year thereafter 20c. per H. P. 
 10 per cent, to general revenue 
 and 90 per cent, to counties of 
 source, for dragging, balance may 
 be used for construction or im- 
 provement. 
 
 Annually, Sec. of State. To 26 H. 
 P. $3; to 36 H. P. $s; to 40 H. 
 P. $7.30; over 40 H. P. $10. 
 I,ess admin., balance to county 
 treasurers for general road fund. 
 
 Annually, State Highway Com. To 
 19 H. P, $5; to 34 H. P. $10; to 
 49 H. P. $is; 50 H. P. and up 
 $20. Paid into state highway 
 fund for construction, mainte- 
 nance and repair. 
 
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 ities 15; curves, etc., 8; else- 
 where 25. No state law covering 
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 vehicles. 
 
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 ities 12; curves, etc., 8; street 
 crossings, 6. No state law cov- 
 ering non-glare lights or lights on 
 horse vehicles. 
 
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 ities 12; closely built sections is; 
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INDEX. 
 
 [References are to Sections.] 
 ACCEPTANCE 
 
 In sales 639 
 
 Right of inspection before acceptance 640 
 
 ACCESSORIES 
 
 Considered 1511, 1512, 1514 
 
 Master as accessory before the fact 933 
 
 ACCIDENT 
 
 Pure accident 234 
 
 Pure accident, act of God, vis major, inevitable accident 988 
 
 Misadventure 1492, 1496 
 
 Inevitable accident 1503 
 
 Inevitable accident in motor vehicle cases 1504 
 
 When an accident and negligence combine to bring about an injury . . 1040 
 
 After which identity must be disclosed 50 
 
 ACCIDENT INSURANCE 
 See Insurance 
 
 ACCOMPLICES 
 
 Considered iSo8 
 
 See Conspiracy 
 
 ACT OF GOD 
 
 Considered 989 
 
 ADMISSIONS 
 See EviDENCB 
 
 ADVANCES 
 
 Defaulting buyer forfeits advances 655 
 
 AGE 
 
 Age limit for operator 266 
 
 See CniirDReN 
 
 AGENCY 
 
 See SeiiUNG Agents and Agencies 
 
 In Generai, 
 
 Described 70S 
 
 How pleaded 1S62 
 
 Duty of agent " 7^7 
 
 1 167 
 
INDEX 
 
 [References are to Sections.] 
 
 Collusive contract of agent 722 
 
 Chauffeur demanding or accepting a commission or bonus 260 
 
 Duty of master to select competent servant 813 
 
 General reputation for competency of servants 814 
 
 General reputation for intemperance 815 
 
 Compensation of an agent 733 
 
 When commission earned 735 
 
 Right to commissions as between general atid special agent where car 
 
 not delivered 734 
 
 Payment to an agent 731 
 
 Notice to an agent 732 
 
 Knowledge of agent binding on company 782 
 
 Agent's statements, 728, 1606 
 
 Liabilities of master and chauffeur for negligence 1 724, 1043 
 
 Responsibility of agents 723 
 
 Liability of agent in case of torts ^ 724 
 
 Liability of operator 816 
 
 Ratification of servant's acts 715, 812 
 
 When Agency Exists 
 
 Automobile agency defined 707 
 
 Appointment of agent 712 
 
 Revocation of authority 738 
 
 Authority of officer of corporation to purchase, hire or operate auto- 
 mobile, .". , 826 
 
 Driver under control of defendant, in action for death 1537 
 
 Evidence of Agency 
 
 Relation, how proved 716, 827 
 
 Presumption arising from master's presence 628 
 
 Ownership of car and employment of driver 829 
 
 Ownership and fact that car on owner's business enough 830 
 
 Evidence of registration 831 
 
 Possession and registration 832 
 
 Name inscribed on car or on chauffeur's uniform 833 
 
 Evidence that driver the servant of another 834 
 
 Burden of proof in case of acts of servant 972 
 
 Functions of the jury 836 
 
 Statements as to ownership and agency 1612 
 
 Who is Principai< 
 
 Negligence by partner and associations 839 
 
 Corporations 840 
 
 Infants as employers 841 
 
 Infants in negligence cases 842 
 
 Joint owners 843 
 
 Lunatic 844 
 
 I168 
 
INDBX 
 
 [References are to Sections.] 
 
 Mortgagee in possession of business 845 
 
 Who is the vendor when sale made through agent 617 
 
 Who is Agbnt 
 
 Agent defined 701, 803 
 
 Distinction between an agent and a servant 702 
 
 Partnership as agent 739 
 
 "General agents" and "special agents" 710 
 
 Business agents and representatives 846 
 
 Volunteer starting car 847 
 
 Agent permitting another to drive 848 
 
 Car in hands of mechanic 849 
 
 One hired to remove car from ditch 850 
 
 When driver an independent contractor 851 
 
 Taxicab drivers 825 
 
 Guest as agent 817 
 
 Statement by a companion of a party 1609 
 
 Guest of driver cannot recover against owner 818 
 
 Guest of driver not liable 819 
 
 Defendant allowing guest to drive 820 
 
 Driving under direction of guest of owner 821 
 
 Borrowers — ^permitting use of car and chauffeur 822 
 
 Municipal employee 823 
 
 Servant acting gratuituously 824 
 
 DoCTRINe OP RESPONDEAT StTPERIOR IN GBNERAI, 
 
 "Respondeat Superior" 799 
 
 "Employer" or "master" defined 802 
 
 "Employe" or "servant" defined 803 
 
 The relation of master and servant 804 
 
 Relation between employer and chauffeur 250, 805 
 
 Agent's power to delegate authority 73° 
 
 Responsibility of principal for misconduct of his agent 721 
 
 Servant's negligence imputed to master "98 
 
 Responsibility of owners— Generally 20S 
 
 Rule of respondeat superior as to garage keeper S24 
 
 Rule of respondeat superior applied to selling agents 693 
 
 Rule of respondeat superior applied to rented car S6o 
 
 Unauthorized Acts— English view .• ■ • 800 
 
 American view 801 
 
 Where servants of garage keeper take car without authority 539 
 
 Garage keeper's servant acting beyond his authority at the request 
 
 of the owner ^ 
 
 Tests of doctrine 
 
 .Unnecessary acts of employe 7 
 
 When punitive damages recoverable against employers Sos, 1700 
 
 1 169 
 
 74 
 
INDEX 
 
 [References are to Sections.] 
 
 Responsibility for an operator who is not hired 809 
 
 Implied authority of servant 810 
 
 Effect of statutes requiring registration, etc., 811 
 
 Statutes imposing liability on owner 837 
 
 Application to master of statutes imposing duty of care 838 
 
 Ratification 71S, 812 
 
 Within the Scope of His Employment 
 
 Scope of agent's authority 7I4 
 
 Private instructions , 713 
 
 Liability dependent on whether acts were within course of employ- 
 ment 872 
 
 Damage to automobile driven by chauffeur on his own business .... 873 
 
 Driving to get supplies 874 
 
 Authority of agent to "borrow'' car 875 ■ 
 
 Agent delivering repaired goods 876 
 
 Testing car on road '. 877 
 
 When chauffeur driving on own business with master's permission . . 878 
 
 Servant doing work for fellow servant 879 
 
 Operator no duty to drive 88a 
 
 Presumptions 881 
 
 Deviations 
 
 Going out of way — "detours" 882 
 
 Large deviation 883 
 
 Slight deviation 884 
 
 Unexecuted intention to deviate 885 
 
 Going to and from meals 886 
 
 Going for laundry 887 
 
 Separate trip 888 
 
 Running in opposite direction 889 
 
 While returning to duty 890 
 
 When driver "on a frolic of his own" 891 
 
 Chauffeur earning money for himself 892 
 
 Servant leaving vehicle — omissions of duty 893 
 
 Injurious acts of an employe done for amusement 894 
 
 Disobedience 895 
 
 Unauthorized use of car on servants' business 896 
 
 Unauthorized use of car on master's business 897 
 
 Trip in response to appeal for aid by friends of owner 898 
 
 Responsibility of principal for wilful and wanton negligence of em- 
 ploye 900 
 
 Deviations by hirer SS8 
 
 Authorized use of property by garage keepers — Deviations 540 
 
 Effect of Family Relationship 
 
 Relationship of parent and child 901 
 
 1 170 
 
INDEX 
 
 [References are to Sections.] 
 
 Family car used for family purposes 902 
 
 Where son drives with father's permission 903 
 
 Son driving parent 904 
 
 Father's car taken by son without permission 905 
 
 Where son learning to drive go6 
 
 Father has burden to prove son had no authority 907 
 
 Son following father's custom in leaving car unlighted 908 
 
 Father's liability for negligence of adult son 909 
 
 Liability of parent for allowing incompetent child to run car 910 
 
 Child allowing another to drive 911 
 
 Whether automobile belongs to son 912 
 
 Whether driver was servant of absent parent or of child 913 
 
 Members of family in control in owner's absence 914 
 
 Driver acting under orders from one of family 915 
 
 Previous operation by member of family 916 
 
 Wife as agent of husband 917 
 
 Wife liable for act of son 918 
 
 When husband and wife both liable for act of child 919 
 
 In the Employment of One Person and Doing Work for Another 
 
 In general 852 
 
 Employe of corporation driving for one of its officers 853 
 
 Contract with garage to care for car and furnish driver when called 
 
 upon 854 
 
 Where chauffeur of another drives plaintiff home gratuitously 855 
 
 Letting customer crank car 856 
 
 Testing c^ for customer 857 
 
 Where salesman lets another drive the owner's car 858 
 
 Chauffeur acting as instructor 859 
 
 Driving car home for purchaser 860 
 
 Car delivered but not paid for 861 
 
 Liability of manufacturer for negligence in delivering to customer . . 862 
 
 Demonstrator 863 
 
 Demonstrator allowing customer to run car 864 
 
 Garage mechanic testing car 865 
 
 Hiring a vehicle and driver 866 
 
 Hirer selecting chauffeur paid by owner 867 
 
 Political committee hiring car and paying chauffeur 868 
 
 When bailee is liable to third parties 869 
 
 Defective vehicle 870 
 
 Hirer allowing a friend to drive 871 
 
 Master's Liabiuty to Servant 
 
 In general ^20 
 
 Driver a fellow servant 921 
 
 Liability to servant for employing driver who drank 922 
 
 II71 
 
INDEX 
 
 [References are to Sections.] 
 
 Workmen's compensation law 923 
 
 When servant called upon to act in emergencies 924 
 
 Ehity of master to supply safe vehicle and appliances — backfiring 925 
 
 The risks assumed by the employe 926 
 
 Chauffeur as passenger while intoxicated owner driving 927 
 
 Mechanician on racing car 928 
 
 Burden of proof — functions of jury, etc 929 
 
 Contributory negligence of chauffeur 930 
 
 Right to discharge servant — services "satisfactory to the master" ... 931 
 
 Iviability for furnishing defective machine to employe 228 
 
 Servant injured by joint negligence of master and a third person . . 1042 
 Criminal Liabhity 
 
 In general 932 
 
 Master as accessory before the fact 933 
 
 Criminal responsibility for acts mala prohibita 934 
 
 Criminal responsibility of chauffeur — Plea of obedience to orders . . . 935 
 Assault and battery committed by servant in the exercise of a general 
 
 discretionary authority 936 
 
 See Criminai, Law 
 
 ALIENS 
 
 Foreign diplomatic corps 199 
 
 AMUSEMENT 
 
 Injurious acts of an employe done for amusement 894 
 
 ANIMALS 
 
 Injuries to animals 1752 
 
 Injury to dog 1180 
 
 Injury to cattle on road 1181 
 
 Dog as cause of injury 1179 
 
 Proximate cause of fright of animals — ^Act of driver 1063 
 
 Duty to hit animal rather than person 1103 
 
 Pedestrian driving animals 1330 
 
 Testimony of habits of an animal 1632 
 
 See Frightening Horsbs. 
 
 ANNUITY 
 
 Table as evidence 1659 
 
 APPEAL 
 
 From conviction 492 
 
 Power of appellate court to reverse 1576 
 
 Control of appellate court over damages 1727 
 
 Waiver of objection to evidence 1620 
 
 See Practicb; Criminal Practice. 
 
 ARGUMENT 
 
 Considered 1580 
 
 1 172 
 
INDEX 
 
 [References are to Sections.] 
 ARREST 
 
 In general 506 
 
 Resisting an officer 507 
 
 Summons in lieu of arrest 508 
 
 Powers of inspectors and examinus to arrest— How limited S09 
 
 Custody of prisoner 510 
 
 Recapture 511 
 
 Property taken from a prisoner 512 
 
 Bail S13 
 
 Fees of constables and police officers — extortion 514 
 
 Immunity of foreign diplomatic corps 515 
 
 Without warrant 516 
 
 In cases of misdemeanor 517 
 
 In cases of misdemeanor and statutory offenses 518 
 
 Responsibility of officer SiP 
 
 In cases of felony 520 
 
 In civil actions 521 
 
 Officers to state ground of arrest or exhibit warrant 499 
 
 When officer authorized to arrest without warrant 500 
 
 See Enforcement of Motor Vehicus Law 
 
 ASLEEP 
 
 Driving while asleep , iiSS 
 
 ASSAULT 
 
 Considered 148S 
 
 Assault and battery by driving motor vehicle i486 
 
 Parties I49i 
 
 When illegal speed not proximate cause of battery 1487 
 
 Assault and battery committed by a servant in the exercise of a gen- 
 eral discretionary authority 93^ 
 
 Assault on toll keeper 481 
 
 Misadventure from negligence no defence 1492 
 
 ASSOCIATIONS 
 
 Liability of 208 
 
 Liability for negligence of members of 839 
 
 Political committee hiring car and paying chauffeur 868 
 
 AUTOMOBILE 
 
 Defined ' 
 
 Defined by statute " 
 
 A vehicle ^ 
 
 Not a tool or implement of trade " 
 
 Included under carriage 4 
 
 Includes taxicab "97 
 
 Includes taxicab, motorcycle and auto truck 2 
 
 "73 
 
INDEX 
 
 [References are to Sections.] 
 
 Not a dangerous agency 313-323 
 
 Motor vehicles classified in the Massachusetts statute 12 
 
 Police power over 27 
 
 See VEhiclb 
 
 AVERAGE SPEED 
 
 Average speed limit 434 
 
 BACKFIRING 
 
 Liability of owner for 925 
 
 BACKING 
 
 Backing in general 1190 
 
 Duty on backing across corner 403 
 
 Meeting car backing on wrong side of street 1191 
 
 Automobile backing in circle, hitting laborer 1343 
 
 Backing out of garage running over street laborer 1192 
 
 Care of driver of horse when automobile backing 1161 
 
 Backing across street car track 1440 
 
 Street car backing 1456 
 
 Train backing 1408 
 
 Stepping back 1309 
 
 Passenger turning back after leaving street car 1324 
 
 BAIL 
 
 Bail 513 
 
 BAILMENT 
 
 Termination of bailment of garage keeper 53° 
 
 Selling contract construed a bailment 695 
 
 When bailee is liable to third parties 869 
 
 Defective vehicle 870 
 
 Hirer allowing a friend to drive 871 
 
 As to storage see further Garages 
 
 BEER 
 
 As an intoxicating liquor , 465 
 
 BEGINNER 
 
 Care of beginner 980 
 
 BELL 
 
 See SiGNAi,s 
 
 BIAS 
 
 Of witnesses 1708 
 
 BICYCLIST 
 
 Mutual rights of automobiles and bicycles 281 
 
 Deaf bicyclist 137° 
 
 Seesaw movements 1182 
 
 1 174 
 
INDEX 
 
 [References are to Sections.] 
 
 Wobbling 377 
 
 Slipping and falling 1183 
 
 Turning across road 1184 
 
 Brakes not working 1185 
 
 Automobile overtaking bicycle 1186 
 
 Duty of automobilist to slow down 1187 
 
 Automobile on wrong side of street 1188 
 
 Bicyclist turning corner at high speed 1189 
 
 Failure to continue looking at automobile 1189a 
 
 Overtaking on right 372 
 
 BUND 
 
 Blind pedestrian I373 
 
 BOOKS 
 
 Books of account 1656 
 
 Time cards 1657 
 
 BORROWERS 
 
 Borrowers — ^permitting use of car and chauflfeur 822 
 
 Authority of agent to "borrow" car 87S 
 
 BRAKES 
 
 Required 229 
 
 Engine used as 230 
 
 Liability when brakes fail - 227 
 
 Where automobile brakes do not work at grade-crossing 1402 
 
 Bicycle brakes not -working Ii8s 
 
 BRIDGE 
 
 Causeway is not ^°9 
 
 Running on bridge 402 
 
 BROKER 
 
 "Broker" defined 703 
 
 BURDEN OF PROOF 
 See EviDBNce 
 
 BY-LAW 
 
 Defined ^"' 
 
 CALCULATIONS ^ ^ 
 
 Evidence of ^ 
 
 CARE 
 
 See NsGWGBNCB 
 
 CARRIAGE 
 
 Includes automobile and motorcycle 4 
 
 Pleasure carriage defined 
 
 "75 
 
INDEX 
 
 [References are to Sections.] 
 CARRIERS 
 In Generai, 
 
 What is a common carrier 1228 
 
 Garage keepers not common carriers SSi 
 
 Taxicabs 1229 
 
 Taxicabs as "carriages" or hacks 1230 
 
 Responsibility of taxicab, etc., drivers, 258 
 
 Motor vehicles as carriers of passengers and merchandise — degree of 
 
 care 1231 
 
 Distinction between carriers of goods and carriers of passengers . . . 1232 
 
 The vehicle, its appliances and repairs — carrier not an insurer 1233 
 
 Presumption of negligence , 1234 
 
 Gratuitous passengers 1235 
 
 Sight seeing automobile 1236 
 
 Ultra vires acts of carrier corporation ■ 1237 
 
 Liability of carrier carrying automobile 1238 
 
 Concerning passengers in public hacks 1239 
 
 "Hack line" defined 1240 
 
 Rules and regulations applicable to motor vehicles 1241 
 
 lyicensing acts 1242 
 
 Competency of drivers — condition of the hack, etc., 1243 
 
 Power of municipalities to regulate motor vehicles for hire 170 
 
 Negligence of chauffeur of public auto not imputed 1035 
 
 Negligence not imputed to passenger for hire 1022 
 
 Transportation of motor vehicles on steam vessels 201 
 
 Validity of higher fee on vehicles used for hire 116 
 
 Jitneys 
 
 Definition 1244 
 
 Included under vehicle .' 1245 
 
 As common carriers 1246 
 
 Validity of special regulations 1247 
 
 Experience of driver 1248 
 
 Classification by amount of fact 1294 
 
 Fees 1250 
 
 Bond 1251 
 
 Rules as to operation — rates to be shown on machine 1252 
 
 Inspection 1253 
 
 Right of municipality to require license 1234 
 
 Who may enforce regulations — injunction 1255 
 
 Right to refuse or cancel license 1256 
 
 CARRYING A LOAD 
 
 Defined 9 
 
 CATALOGUE 
 
 Statements in catalogue as warranty 726, 751 
 
 1 176 
 
INDEX 
 
 CATTLE [References are to Sections.] 
 
 See Animaw 
 CAUSEWAY 
 
 Causeway not a bridge ^ 
 
 CAVEAT EMPTOR 
 
 In sales , 
 
 In sales by manufacturer _g- 
 
 Fraud sets aside rule of caveat emptor g-2 
 
 CERTIORARI 
 
 To test delegated authority 37^ 
 
 CHATTEL MORTGAGES 
 See Mortgages 
 
 CHAUFFEURS 
 In Gbnerai, 
 
 Scope of chapter 244 
 
 "Chauffeurs" defined 245 
 
 "Operator" "!!."!..'.'!!!!!!!.;;!! 246 
 
 Distinction between "chauffeur"' and operator 247 
 
 Relation of employer and chauffeur 805 
 
 Synopsis of laws as to license, see Appendix E. 
 
 CoMPfiTENCY 
 
 The operator must be competent 248 
 
 Competency and skill of operators at common law 1464 
 
 Evidence of prudence and skill of driver 1627 
 
 Previous conduct of driver 1628 
 
 Experience of driver of jitney , 1248 
 
 Habits of driver 985 
 
 General reputation for intemperance 815 
 
 General reputation for competency of servants 814 
 
 Duty of master to select competent servant 813 
 
 Non-expert opinion whether operator careful 1703 
 
 Age limit for operator 266 
 
 Minor a reckless driver 1362 
 
 Liability of parent for allowing incompetent child to run car 910 
 
 Degree of care not less than that of motormen 251 
 
 Responsibility for an operator who is not hired 809 
 
 Duty of driver in rear seat to keep lookout 1262 
 
 Operator talking 1678 
 
 Overcome from exposure or illness iSoi 
 
 Authority 
 
 Relation between employer and chauffeur 250 
 
 Chauffeurs as mechanics 249 
 
 II77 
 
INDEX 
 
 [References are to Sections.] 
 
 Chauffeur acting as instructor 859 
 
 Ordering supplies and repairs 261, 563 
 
 Placing car in storage 262 
 
 Chauffeur earning money for himself 892 
 
 When chauffeur driving on own business with master's permission . . 878 
 
 When driver "on a frolic of his own" 891 
 
 Going to and from meals 686 
 
 Going for laundry 887 
 
 Name on uniform as showing agency 833 
 
 Damage to automobile driven by chauffeur on his own business 873 
 
 Deviations, see Agency 
 
 Rights and I,iabiijties 
 
 Responsibility, generally 252 
 
 Responsibility to licensing authority 253 
 
 Rights against owner 920-931 
 
 Wages as affecting damages 1743 
 
 Liability of operator for his negligence 816 
 
 Excuse of "obedience to orders" 254 
 
 Conflict of orders and duty 255 
 
 Contributory negligence of chauffeur in obeying instructions 93S 
 
 Criminal responsibility of chauffeur — Plea of obedience to orders . . 935 
 
 Conflict of duties 256 
 
 Jumping from the vehicle 257 
 
 Responsibility of taxicab, etc., drivers 258 
 
 Contributory negligence of chauffeur 259 
 
 Demanding or accepting a commission or bonus 260 
 
 Special rate of license fee 117 
 
 License obtained by concealing disability 263 
 
 Unlicensed operators 264 
 
 Driver "accompanied by" licensed operator 265 
 
 Right to discharge, services "satisfactory to the master" 931 
 
 Agreement for secret commissions vitiates contract 5^4 
 
 See Operation of Motor VEHictes. 
 
 CHILDREN 
 
 Degree of care towards children 1346 
 
 Care of children that of children of that age 1347 
 
 The age of discretion 1348 
 
 Child running into danger 1349 
 
 Running from behind another vehicle 1350 
 
 Running without looking 1351 
 
 Child looking and not seeing 1352 
 
 Child playing in street 1353 
 
 Crowd of children 13S4 
 
 Fright of children 13SS 
 
 1 178 
 
INDEX 
 
 [References are to Sections.] 
 
 Boy chased out of building 1355 
 
 Last clear chance j,|.y 
 
 Driving on wrong side of street ] . . 1358 
 
 Minor must appear by guardian 1365 
 
 Children as witnesses 1^07 
 
 Law 01? Road 
 
 Driving on wrong side of street, hitting child 1358 
 
 Coasting illegally igep 
 
 Negligence of parent permitting child on street 1360 
 
 Excessive speed sufficient evidence of negligence 1361 
 
 Speed 
 
 Excessive speed sufficient evidence of negligence 1361 
 
 Minor a reckless driver 1362 
 
 Gross negligence 1363 
 
 Question for jury 1364 
 
 See Parent and Child 
 
 CIDER 
 
 As an intoxicating liquor 464 
 
 CITY 
 
 See Municipai, CoRPORATIO^f. 
 
 CLASS LEGISLATION 
 
 Special legislation 42 
 
 Special or class legislation 43 
 
 Rule applied to motorists 44 
 
 Regarding motor vehicles 45 
 
 Nature of motor vehicle laws 46 
 
 Identification and restraint 47 
 
 Display of number plates is not void as an unreasonable search or 
 
 testifying against one's self 48 
 
 Where number plates not furnished , 49 
 
 Requiring operator to disclose identity after accident SO 
 
 Venue where accident happened S' 
 
 Registration laws must be uniform 52 
 
 Speed limitations S3 
 
 Illegal speed prima facie proof of negligence 54 
 
 CLUTCH 
 
 Required 229 
 
 COACH 
 
 Automobile as ° 
 
 COASTING 
 
 Coasting illegally 1084,1112,1359 
 
 1179 
 
INDEX 
 
 [References are to Sections.] 
 COLLISION 
 
 Considered 788 
 
 Presumption of negligence from collision in passing 373 
 
 Collision with permanent structure 240 
 
 Effects of collision, as evidence - 1670 
 
 COMMERCE 
 
 Interstate commerce 197 
 
 Rules governing transportation on steam vessels 201 
 
 COMMERCIAL MOTOR VEHICLES 
 
 Defined 13 
 
 COMMISSION 
 
 Not deducted from damages on rescission 681 
 
 See further Sei,i,ing Agbnts 
 
 COMMODITIES 
 
 Defined i, 79 
 
 COMMON CARRIER 
 See Caseisr 
 
 COMMON CARRIERS 
 See Carriers 
 
 COMMON ENTERPRISE 
 
 Where engaged in common enterprise 1024 
 
 Defendants engaged in common enterprise 1041 
 
 COMPROMISE 
 
 Offer of compromise 1616 
 
 CONDITIONAL SALE 
 
 Title in case of conditional bill of sale 619 
 
 Conditional sale — ^buyer in default 660 
 
 Selling agreement not 696 
 
 Priorities 939 
 
 CONDITIONS 
 
 Representations, warranty and conditions 742 
 
 Condition precedent 743 
 
 Condition subsequent 744 
 
 Condition precedent and subsequent 745 
 
 Waiver of condition precedent 746 
 
 Modem tendency to treat condition as warranty 747 
 
 Condition that car be kept in certain building 784 
 
 CONFESSIONS 
 
 Considered 1604 
 
 1 180 
 
CONSIDERATION 
 For sale 
 
 INDEX 
 [References are to Sections.] 
 
 630 
 
 Failure of 6,j 
 
 Failure of through misrepresentation 632 
 
 CONSPIRACY 
 
 Considered ISI1-1S13 
 
 Conspiracy under New York statutes 1516 
 
 CONSTABLES 
 
 Concerning constable 502 
 
 Fees of constables and police officers — extortion 514 
 
 CONSTITUTIONAI, CONSIDERATIONS 
 
 In general 16 
 
 Federal constitution distinguished 17 
 
 Constitutional power of the legislature 18 
 
 In Massachusetts 19 
 
 Inherent or implied powers 20 
 
 Unconstitutional law 21 
 
 Presumption against unconstitutionality , 22 
 
 Unconstitutionality how pleaded 23 
 
 Who may plead unconstitutionality 24 
 
 Raising question of constitutionality 25 
 
 Requiring operator to disclose identity 50 
 
 Reasonable regulation 180 
 
 Class legislation 42-54 
 
 Power of legislature to delegate its authority 36-40 
 
 Ivicensee's claim that revocation is unconstitutional 153 
 
 Police Powsr 
 
 Police powers 198 
 
 Police power of State 26 
 
 Police power and the motor vehicle generally 27 
 
 Use of number plates 28 
 
 Highway regulation 28 
 
 Legislative duty 29 
 
 Power of the courts concerning police regulations 30 
 
 Skill and competency of operators 3i 
 
 Driver to be accompanied by licensed operator 32 
 
 Steam engineers' and firemen's licenses 33 
 
 Personal character as a factor in issuing licenses 34 
 
 Examination in case of owners 35 
 
 Power to delegate ■ ■ • 36 
 
 Delegation to park commissioners and municipalities in Massa- 
 chusetts 3^ 
 
 Highway control in Massachusetts 39 
 
 I181 
 
[References are to Sections.] 
 
 Exercise of delegated authority must be reasonable 40 
 
 Turnpike companies 41 
 
 Construction of police regulations 130 
 
 Graduated fees void as 106 
 
 State statutes, use of highways and the "police power" 191 
 
 Control of highways an exercise of the "'police power'' 270 
 
 Extent of the legislative supervision over highways 271 
 
 Legislative control of highways includes streets, parks and public 
 
 places in cities and towns ~. 274 
 
 Power of control means power to regulate use 272 
 
 Legislative power to exclude 273 
 
 Police power of cities and towns IS7 
 
 Police power over garages 592 
 
 Regulation of jitneys 1247-1256 
 
 CONTRACTS 
 
 Selling agreements, See Selling AgBnts and Agencies 
 
 CONVERSATION 
 
 Motorman conversing 1455 
 
 Operator talking, passenger talking 1678 
 
 CONVERSION 
 
 Where vendor refuses to deliver 667 
 
 Uniting action for purchase-price with action for conversion 1 581 
 
 See Trover 
 
 CONVICTION 
 
 Defined 149 
 
 Effect of 486 
 
 Criminal conviction 1759 
 
 What amounts to a "conviction" to work a forfeiture of license 150 
 
 Deprivation of license in addition to punishment 151 
 
 Duty of licensing officials on convictions 152 
 
 Evidence of previous convictions 1630 
 
 CORNERS 
 
 Meeting at. See Law oe the Road 
 
 CORPORATIONS 
 
 Liability for negligence of servants of 840 
 
 Employe of corporation driving for one of its officers 853 
 
 Authority of officer of corporation to purchase, hire or operate auto- 
 mobile 826 
 
 Ultra vires acts of carrier corporation 1237 
 
 Recovery against officer of insured company as affecting insurance . . 795 
 
 COUNTER-CLAIM 
 
 For fraud 672 
 
 1 182 
 
IND^X 
 
 CQ^ [References are to Sections.] 
 
 See Animals 
 CRANKING 
 
 Accident while cranking 
 
 Liability of master for backfiring 
 
 Letting customer crank car q^| 
 
 CRIMINALLAW 
 
 In general 
 
 Definition and classification of crimes 1L 
 
 Motive or intent ^' ' 
 
 Assault on toll keeper '^T 
 
 Assault committed by servant o ^r 
 
 Liability of master lor crimes of servant .....".....'..".' ' ' " 932-036 
 
 Criminal liability of chauffeur, obedience to orders " o« 
 
 Theft of automobile " " ^^g 
 
 When theft of automobile is burglary 479 
 
 Special laws governing theft of automobile 480 
 
 Warning against police traps [ . ' _ 481a 
 
 Making duplicate number plates ' ^gib 
 
 Criminal responsibility for acts mala prohibita 934 
 
 Regarding acts or omissions, mala in se 956 
 
 Civil as well as criminal liability g6i, 962 
 
 CRIMES 
 
 Criminal liability of passenger 1226 
 
 Criminal and civil liability for breach of law of road 333 
 
 Criminal proceedings, no effect on punitive damages 1771 
 
 Misdemeanors, passengers participating 1227 
 
 Ignorance of law 140 
 
 Evidence necessary in criminal cases 1649 
 
 Connecting the defendant with the crime 1050 
 
 Criminal negligence 954 
 
 Intoxication not an excuse 472 
 
 See further Assault, Larceny, Trespass, etc. 
 
 CRIMINAL NEGLIGENCE 
 In General 
 
 Scope and treatment , 1460 
 
 Division of the subject 1461 
 
 The term "criminal negligence" 1462 
 
 Rules of evidence in criminal cases 1463 
 
 Competency and skill of operators at common law 1464 
 
 Ignorance of the law 140 
 
 Intent, Malice and Motive 
 
 In general 146S 
 
 Intent presumed from acts 1466 
 
 1 183 
 
INDEX 
 
 [References are to Sections.] 
 
 Malicious mischief 1467 
 
 Implied malice 1468 
 
 Malice in mala prohibita 1469 
 
 Malice in mala in se 1470 
 
 Where particular result improbable 1471 
 
 Homicide 
 
 Involuntary manslaughter, 1472 
 
 Homicide through negligence in general 1473 
 
 Homicide through negligent operation of motor vehicles 1474 
 
 Causing illness resulting in death 1475 
 
 Proximate cause 1476 
 
 Illegal act , 1477 
 
 Illegal speed 1478 
 
 Standard of care in manslaughter cases 1479 
 
 Complaint for homicide 1480 
 
 Precaution generally 1481 
 
 Dangerous agencies 1482 
 
 The vehicle, its appliances and repairs 1483 
 
 Through defective materials 609 
 
 CRiMfis Less Than Homicide 
 
 Crime measured by results 1484 
 
 Assault and battery 1485 
 
 Assault and battery by driving motor vehicle i486 
 
 When illegal speed not proximate cause of battery 1487 
 
 Trespass 1488 
 
 Nuisance from speeding 1489 
 
 Contributory negligence in these cases 1490 
 
 Parties, 1491 
 
 Remedies 1493 
 
 Questions of fact not reviewed on appeal 1494 
 
 Defences 
 
 Misadventure , 1496 
 
 Misadventure from negligence is no defense 1492 
 
 Inevitable accident 1503 
 
 Inevitable accident in motor vehicle cases 1504 
 
 Contributory negligence no defence 1495 
 
 Self-defence 1497 
 
 Excusable crimes 1498 
 
 When defendant tries to avoid collision 1499 
 
 Intoxication— common law view 1500 
 
 Responsibility when driver is overcome fronl exposure or illness 1501 
 
 Mistake of judgment 1502 
 
 Subsequent negligence by person injured 1505 
 
 1 184 
 
INDEX 
 
 [References are to Sections.] 
 
 Individuals RespoNSiBte 
 
 Driver primarily responsible 1506 
 
 Rule of joint responsibility Ig07 
 
 Accomplices j eo8 
 
 Rule of joint responsibility as applied to passengers 1509 
 
 Misdemeanors 1510 
 
 Accessories and conspiracy 1511 
 
 Accessories 11-12 
 
 Conspiracy 1513 
 
 New York statutes relating to crimes of negligence and accessories . . 1514 
 
 Culpable negligence in New York 1515 
 
 Conspiracy under New York statute 1516 
 
 CRIMINAL PlyEADING AND PRACTICE 
 
 Indictment or information 482 
 
 Complaint for homicide 1480 
 
 Summons in lien of arrest 508 
 
 Remedies for assault 1493 
 
 "Jurisdiction of the court" 483 
 
 Accused to be informed of the charge 484 
 
 Pleading "nolo contendere" 485 
 
 Conviction 486 
 
 For conviction of reckless driving must prove that on public road . . . 426 
 
 Need not prove individuals endangered to convict of reckless driving, 427 
 
 Offenses that may be punished twice 487 
 
 Fines, penalties and forfeitures, in misdemeanors 488 
 
 A "fine" described -. . . . 489 
 
 Penalties and forfeitures 490 
 
 Forfeitures by way of damages 49i 
 
 Appeal 492 
 
 Questions of fact not reviewed on appeal i494 
 
 Summary trial 493 
 
 Arrest, see Arrest 
 
 CRIPPLE 
 
 Cripple driving 1368 
 
 CROSSINGS 
 
 Defined 383 
 
 Speed at 38S 
 
 One reaching crossing first has right of way 382 
 
 See Rahroad Crossings 
 
 CROWDS 
 
 See Spectators 
 
 CURB 
 
 Duty when driving close to 35° 
 
 1185 
 
 75 
 
INDEX 
 
 [References are to Sections.] 
 
 Duty to hug curb in turning to right 394 
 
 "Curb" applied to fence in street 395 
 
 CUSTOM 
 
 Usage 720 
 
 Evidence of "custom" on the question of negligence 984, 985 
 
 Evidence of habits of the driver 985 
 
 Evidence of practice of others 908, 1629 
 
 CUSTOMS 
 
 Customs duties 202 
 
 Customs duties under Tariff Acts of 1909 and 1913 203 
 
 CUTTING IN 
 
 Cutting in on passing 371 
 
 Cutting corner in turning to left 397 
 
 DAMAGES 
 In Gensral 
 
 Scope of chapter 1712 
 
 Damages defined 1713 
 
 Intent and motive in actions of tort affecting damages 1714 
 
 Damages must be reasonable 1715 
 
 Classification of damages into "liquidated" and "unliquidated" 1716 
 
 Division of the subject 1717 
 
 Compensatory damages 1718 
 
 "Elements" of compensatory damages 1719 
 
 Damage must follow negligence 96S 
 
 In suit by married woman 1720 
 
 General American rule as to damages 665 
 
 Nominal damages 666 
 
 Measure of damages in cases of gross niegligence 1523 
 
 For Personal Injuries 
 
 In general 1721 
 
 Damages excessive ' 1722 
 
 Damages not excessive 1723 
 
 Damages inadequate 1724 
 
 Where verdict larger than claimed 1725 
 
 Instructions as to damages 1726 
 
 Control of appellate court over amount .*. 1727 
 
 Disease resulting from negligence 1062, 1728 
 
 Employment of a substitute 1729 
 
 Expense of maintaining suit 173° 
 
 Circumsances of the parties 173I 
 
 Liability for mental suffering, fright, or nervous shock 1064 
 
 Mental suffering 1732 
 
 Fright and inconvenience 1733 
 
 II86 
 
INDEX 
 
 [References are to Sections.] 
 
 Avoiding damage 1734 
 
 Subsequent negligence enhancing damages 1735 
 
 In cases of wilful negligence 1736 
 
 Future damages— "single action" 1737 
 
 Permanent injuries 1738 
 
 For Injuries to Pbrsonai, Property 
 
 The general rule 1739 
 
 Difference in value before and after damage 1740 
 
 Evidence of what was done to car after accident 1741 
 
 Expert evidence of value 1684, 1742 
 
 Price paid as evidence of value 1747 
 
 Storage or chauffeur's wages 1743 
 
 Cost of substitute car 1744 
 
 Value of use during repairs 1745 
 
 Expense of new parts 1746 
 
 Expense of repairs 1748 
 
 Care of injured property 1749 
 
 Replevin 17S0 
 
 Ownership in relation to replevin 1751 
 
 Conversion 667 
 
 Injuries to animals I7S2 
 
 Loss of value of horse by rendering him shy 114S 
 
 In Actions of Contract 
 
 Measure of damages in cases of sales with warranty of article I7S3 
 
 For breach of warranty 776 
 
 For breach of two warranties 752 
 
 Loss of future profits I7S4 
 
 For breach of contract by seller 662 
 
 Duty of buyer where seller fails to deliver 664 
 
 In action by buyer 665, 666 
 
 For breach as to price m 
 
 For failure to deliver 762 
 
 Market price "63 
 
 On rescission commissions not deducted 681 
 
 Mitigation o? Damages 
 
 In general ^''^^ 
 
 Matter of evidence '75° 
 
 Wages •■•••■ ^757 
 
 Insurance, pension or gift '75° 
 
 Criminal conviction '759 
 
 Effect of insurance on damages 797 
 
 Mitigation of punitive damages '769 
 
 1 187 
 
INDEX 
 
 [References are to Sections.] 
 Aggravation of Damages 
 
 In general 1760 
 
 Massachusetts rule 1761 
 
 Negligence aggravating disease or injury 1063 
 
 Plaintiff's negligence enhancing injury 1013 
 
 Subsequent negligence by person injured 1505 
 
 Enhancement of punitive damages 1770 
 
 V 
 
 Punitive 
 
 In general 1762 
 
 When recoverable 1763 
 
 Province of the jury and court 1764 
 
 Must be pleaded 1765 
 
 Responsibility of employers 1766 
 
 Joint defendants 1767 
 
 Amount recoverable 1768 
 
 Mitigation of punitive damages '. 1769 
 
 Enhancement of punitive damages 1770 
 
 Criminal proceedings, no effect on 1771 
 
 Punitive statutes 1772 
 
 Massachusetts rule , 1773 
 
 When punitive damages recoverable against employers 808 
 
 In Actions for Death 
 
 In general 1774 
 
 Assessment of "pecuniary damages" 1775 
 
 Insurance ^ 1777 
 
 Where persons interested will receive property as heirs on death 1776 
 
 Massachusetts rule 1778 
 
 Measure of damages in actions for death 1544 
 
 In action for death under Massachusetts statute 1549 
 
 Verdicts 
 
 In relation to negligence 1779 
 
 Setting aside verdicts 1780 
 
 Modifying verdicts 1781 
 
 Compromise verdict 1782 
 
 Special verdicts inconsistent with general verdict 1783 
 
 DANGEROUS 
 
 Defined 451 
 
 DANGEROUS AGENCIES 
 
 Changing point of view 313 
 
 At common law 314 
 
 Test is capacity to do harm , 315 
 
 Duty dependent on knowledge of danger 316 
 
 Question one of fact 317 
 
 I188 
 
INDBX 
 
 [References are to Sections.] 
 
 Danger as reason for legislation 318 
 
 Danger from gasoline ,ig 
 
 Motor vehicle cases emphasizing the danger of the automobile ..... 320 
 
 Motor vehicle cases refusing to consider the automobile dangerous 
 
 P"^^ 321 
 
 The present doctrine 32a 
 
 Reference to automobile as dangerous 323 
 
 Duty of manufacturer 507 
 
 Dangerous agencies in criminal aspect 1482 
 
 DEAF 
 
 Deaf bicyclist , 1370 
 
 Deaf pedestrian 1371 
 
 Deaf person riding horse 1372 
 
 DEALERS 
 
 Registration by 85 
 
 DEATH, ACTIONS FOR 
 
 Scope of chapter 1S31 
 
 Lord Campbell's Act 1532 
 
 New York statute 1533 
 
 Actions compensatory 1534 
 
 Defect in highway 1535 
 
 Parent as dependant upon minor son 1536 
 
 Driver under control of defendant IS37 
 
 Pleading and proof 1538 
 
 Evidence of death 1539 
 
 Proximate cause 1540 
 
 Contributory negligence IS4I 
 
 Trial IS42 
 
 Burden of proof iS43 
 
 Measure of damages IS44 
 
 Damages in actions for I774-I778 
 
 Statutory liability for death and injuries on highway 299 
 
 Imputed negligence in actions for death 1026 
 
 Thb Massachusetts Act 
 
 Massachusetts statute ^545 
 
 History of legislation ^54^ 
 
 Railroad cases ^547 
 
 "Gross" negligence .■ ^548 
 
 Damages 'S49 
 
 In case of joint defendants ^35° 
 
 DECEIT 
 
 See Fraud 
 
 1 189 
 
INDEX 
 
 [References are to Sections.] 
 
 DEFECTS 
 
 See Vehicles 
 
 In Highways. See Highways 
 
 DEFINITIONS 
 
 Use of words in general 15 
 
 Agency 70S 
 
 "Agent" 701 
 
 Automobile i 
 
 Automobile includes taxicab 697 
 
 Automobile includes "Taxicab," "Motorcycle" and Auto Truck 2 
 
 Automobile not a tool or impliment of trade 6 
 
 Automobile agency 707 
 
 "Broker" define4 703 
 
 By-law 181 
 
 Carriage includes automobile and motorcycle 4 
 
 Carrying a load 9 
 
 "Chauffeurs" 245 
 
 Commercial motor vehicles 13 
 
 Commodities 79 
 
 Common carriers 1228 
 
 Concurrent negligence 1036 
 
 "Conviction" 149, 15° 
 
 Crime 477 
 
 "Criminal negligence" • • 1462 
 
 Crossings , 383 
 
 Damages I7i3 
 
 "Dangerous" 4Si 
 
 Defect 288 
 
 "Driving" 1172 
 
 Drunk 4^6 
 
 "Employee" 803 
 
 "Employer" 802 
 
 "Evidence" IS96 
 
 Excise 78 
 
 Garage S22 
 
 Garage keeper a wheelwright 14 
 
 General agents 71° 
 
 Gross negligence I5i7, ISI9 
 
 Hack line 61, 1240 
 
 Hackney or stage coach 8 
 
 Highways 267 
 
 Horse uncontrollable 1146 
 
 Intersecting street 384 
 
 Intoxicated 466-467 
 
 Jitneys I244 
 
 II90 
 
INDEX 
 
 [References are to Sections.] 
 
 Mala in se 477 
 
 Mala prohibita 477 
 
 Market price 663 
 
 Master 802 
 
 Motor 10 
 
 Motor vehicles includes motorcycles 3' 
 
 Negligence 943, 947 
 
 "Operation" 215 
 
 "Operator" 246 
 
 Ordinances 178 
 
 Owner 206 
 
 Pleasure carriage 5 
 
 Publfc safety , 457 
 
 "Reckless" 452 
 
 Recklessness distinguished from negligence 4S3 
 
 Regulation 183 
 
 Revenue 55 
 
 "Sale" , 612 
 
 "Salesman" defined 704 
 
 Servant , 803 
 
 Special agents 7io 
 
 Statutes defining motor vehicles n 
 
 Statutes classifying motor vehicles 12 
 
 Tax 58 
 
 Taxicabs 697, 1229 
 
 Taximeter 1229 
 
 Testimony 1596 
 
 Traveling 189 
 
 User of a motor vehicle 216 
 
 Vehicle 7 
 
 "Wilful and wanton" 1S17 
 
 See Appendix B 
 
 DELEGATION "of POWER 
 
 By agents 730 
 
 Delegation of duty of garage-keeper 572 
 
 Power to delegate authority 1°' 
 
 Delegated authority tg revoke '47 
 
 DELAY 
 
 Unreasonable detention of car being repaired S7i 
 
 DELIVERY 
 
 In sales , 
 
 In executory contract of sale of specific chattels 034 
 
 Loss of.lien by delivery of car S84 
 
 1 191 
 
INDEX 
 
 [References are to Sections.] 
 
 DEMAND 
 
 Demand and tender as condition precedent 668 
 
 DEMONSTRATION 
 
 "Demonstration" — meaning of, and how proved 623 
 
 Liability for acts of 863 
 
 Allowing customer to run car 864 
 
 DEPOSIT 
 
 Right to deposit of selling agent 711 
 
 DERAILMENT. 
 
 Skidding is not 787 
 
 DETOUR 
 See Agbncy 
 
 DEVIATIONS 
 
 Deviation from route by hirer 558 
 
 See Agbncy 
 
 DIPLOMATS 
 
 Immunity from arrest of foreign diplomatic corps 199, 515 
 
 DISABILITIES, PERSON UNDER 
 
 In general 1366 
 
 Negligence by and toward infirm persons , 1367 
 
 Cripple driving 1368 
 
 Driver dizzy , . . . . 1369 
 
 Deaf bicyclist 1370 
 
 Deaf pedestrian 1371 
 
 Deaf person riding horse 1372 
 
 Blind pedestrian 1373 
 
 Negligence by and towards intoxicated person 1374 
 
 Duty towards intoxicated pedestrian 1375 
 
 Intoxication not necessarily a bar to recovery 1376 
 
 Responsibility when driver is overcome from exposure or illness .... 1501 
 
 DISEASE 
 
 Damages from disease 1062, 1728 
 
 DISOBEDIENCE 
 
 By chauffeur 895 
 
 DISTANCE 
 
 Within which vehicle stopped 1666, 1667, 1683 
 
 DITCH 
 
 One hired to remove car from ditch 8so 
 
 DIZZINESS 
 
 Driver dizzy ,. 1369 
 
 1 192 
 
INDEX 
 
 [References are to Sections.] 
 DOG 
 
 See Animai,s 
 
 DRIVER OF HORSE 
 
 Negligence of 1147, 1161 
 
 DRIVING 
 
 Defined 1172 
 
 DRUGS 
 
 Under the influence of drugs 475 
 
 DRUNK 
 
 Defined 466 
 
 EMERGENCIES 
 See NEGUGENce 
 
 EMPLOYEE 
 
 Defined 803 
 
 See Agency 
 
 EMPLOYER 
 
 Defined 802 
 
 See Agency 
 
 ENFORCEMENT OF MOTOR VEHICLE LAW 
 
 Scope of chapter 494 
 
 The Massachusetts Act 49S 
 
 General laws 496 
 
 General features concerning inspectors and examiners 497 
 
 Officer to state ground of arrest or exhibit warrant 499 
 
 When officer authorized to arrest without warrant SOO 
 
 Powers of constables, watchmen and police officers generally Soi 
 
 Powers of constables generally SOi 
 
 Concerning constables S02 
 
 Concerning watchmen S03 
 
 Concerning police officers S04 
 
 Concerning "peace officers" generally SOS 
 
 ENGINE 
 
 Using engine as brake 230 
 
 Evidence of power of 1680 
 
 Duty to stop engine approaching horses 1127 
 
 See Vehicubs 
 
 ENGINEERS 
 
 Licenses 33 
 
 EQUITY JiURISDICTION 
 
 Intervention of equity "^7 
 
 1 193 
 
INDEX 
 
 [References are to Sections.] 
 EVIDENCE 
 In GbnErai, 
 
 Scope of chapter 1595 
 
 The word "evidence*' 1596 
 
 There are two kinds of evidence, "Direct" and "Circumstantial" 1597 
 
 "Conclusive" evidence 1598 
 
 "Presumptive" evidence 1599 
 
 Judicial notice 1600 
 
 Law of another state 1601 
 
 "Best evidence" i6oa 
 
 Best and secondary evidence 1603 
 
 Rules of evidence in criminal cases 1463, 1649 
 
 I/imiting effect of evidence against joint defendants 1049 
 
 Competency 
 
 "Competent evidence" 1621 
 
 "Relevant" evidence 1622 
 
 "Material" evidence or "Pertinent" evidence 1623 
 
 "Satisfactory" or "sufficient" evidence 1624 
 
 "Cumulative evidence" 1625 
 
 Uncontradicted evidence may be disbelieved 1626 
 
 Prudence and skill of driver 1627 
 
 Previous conduct of driver 1628 
 
 Practice of others 1629 
 
 Previous convictions 1630 
 
 Testimony that he did his best and all that could be done 1631 
 
 Testimony of habits of an animal 1632 
 
 Wealth of defendant or that he is a lawyer immaterial 1633 
 
 View of the place by the jury 1634 
 
 Experiments made out of court 163S 
 
 Calculations 1636 
 
 Sound or "noise" as indicating speed 1637 
 
 Time in estimating speed 1638 
 
 Distance as basis of speed estimate • ■ 1639 
 
 Point of view 1640 
 
 Testimony of operator 1641 
 
 Condition of highway in another place 1642 
 
 Stop-watch or mechanical device 1643 
 
 Speedometer , 1644 
 
 Of agency 716 
 
 See also Agency 
 
 Of custom as affecting negligence 984 
 
 Death, in action for 1538 
 
 Of death IS39 
 
 Distance covered at prohibited speed 433 
 
 "94 
 
INDEX 
 
 [References are to Sections.] 
 
 Horn, evidence as to sounding 1170 
 
 Of identification 212 
 
 Of insurance, disclosure of fact that defendant is insured is error 796 
 
 When it may appear that defendant is insured 798 
 
 Of intoxication 47, 
 
 Ownership, registration as evidence of 210 
 
 Circumstances showing ownership, 209 
 
 Massachusetts statute as to evidence of ownership 213 
 
 Physical examination of plaintiff 1578 
 
 Price paid as evidence of value 1747 
 
 Expense of repairs affecting damages 1748 
 
 Reputation of chauffeur 814, 815 
 
 Of signals , 1407 
 
 Of skidding , 238 
 
 Speed as evidence of negligence 1361 
 
 Variance 1557 
 
 Weight and Sufficibncy 
 
 In general, 164S 
 
 "Prima facie evidence" 1646 
 
 A "prima facie case" 1647 
 
 Prima facie case and proximate cause 1648 
 
 In criminal cases 14631 1649 
 
 Connecting the defendant with the crime 1050 
 
 That street is public highway 1051 
 
 To warrant rescission 670 
 
 Admissions or D^aARATioNs 
 
 Admissions, confessions and assertions 1604 
 
 Conversations 160S 
 
 Declarations by agent 6106 
 
 Admission as to speed 1607 
 
 Exclamations of witnesses 1608 
 
 Statement by a companion of a party i6o9 
 
 Unidentified statement in writing 1610 
 
 Request of bystander to defendant 1611 
 
 Statements as to ownership and agency 1612 
 
 Declarations as evidence of ownership 1613 
 
 Acts and words after accident 1614 
 
 Admission of liability ^"iS 
 
 Offer of compromise '"'" 
 
 Offer to care for injured ^°'7 
 
 Statement of facts '^'^ 
 
 Inconsistencies in testimony '"^9 
 
 Admissions as evidence of ownership 211 
 
 Admissions of general agents • ^^^ 
 
 "95 
 
INDBX 
 
 [References are to Sections.] 
 
 Owner's failure to deny agency 83s 
 
 Subsequent acts of defendant — evidence of 1679 
 
 That driver runs away 1675 
 
 Surrounding Circum stances 
 
 In general 1664 
 
 Appearance of persons 1682 
 
 Motive for haste 1665 
 
 Time or distance within which vehicle stopped 1666 
 
 Evidence as to position of vehicle afer accident 1667 
 
 Evidence of what was done to car after accident 1741 
 
 Wheel tracks 1668 
 
 Marks on road , 1669 
 
 Effects of collision 1670 
 
 Damaged parts of car 1671 
 
 Evidence of condition of automobile when shipped 1672 
 
 Failure of driver to hear screams 1673 
 
 Conduct after accident 1674 
 
 That driver runs away 1675 
 
 Evidence of overcharging other customers 567 
 
 Speed of automobile before accident 1676 
 
 Speed after accident 1677 
 
 Operator talking 1678 
 
 Subsequent acts of defendant — evidence of 1679 
 
 Power of the engine, etc 1680 
 
 Speed claimed impossible 1681 
 
 Documentary 
 
 Books of account 1656 
 
 Time cards 1657 
 
 Hospital records 1658 
 
 Mortality tables 1659 
 
 Models, maps and diagrams 1660 
 
 Ordinances how proved 185 
 
 Parol evidence in connection with a written contract 625 
 
 Photographs 1661 
 
 Proof of license or certificate of registration 1662 
 
 Railroad rules as evidence 1411 
 
 Rules of street railway company as evidence 141S 
 
 Existence of public report of breach of speed laws 1663 
 
 Expert Opinion EvmENce 
 
 Expert's qualifications decided by lower court 1689 
 
 Experience acting in official capacity 1686 
 
 Form of experts' opinion 1688 
 
 Expert, evidence as to distance within which automobile could be 
 
 stopped 1683 
 
 II96 
 
INDEX 
 
 [References are to Sections.] 
 
 Physician j»qq 
 
 As to safety of car jgg7 
 
 Of speed ' jggs 
 
 Of value i584_ 1742 
 
 Opinions of Non-bxperts 
 
 In general i6go 
 
 Experience of non-expert witness 1691 
 
 Conclusions inadmissible 1692 
 
 Non-expert witnesses cannot characterize the speed 1693 
 
 Plaintiff may give opinion 1694 
 
 Opinion incompetent if based on hearsay 169S 
 
 Appearance of persons 1682 
 
 Opinion of speed based on comparison 1696 
 
 Speed claimed impossible 1681 
 
 Opinion based on speed of exhaust 1697 
 
 Opinion as to room to pass i6g8 
 
 Speed 1699 
 
 Belief of witness as to facts 1700 
 
 Testimony of passengers 1701 
 
 Neighbors may testify 1702 
 
 Non-expert opinion whether operator careful 1703 
 
 Testimony that he did his best and all that could be done 1631 
 
 Province of court • I7C>4 
 
 Presumptions 
 
 "Presumptions" '^53 
 
 Of fact • 1653 
 
 Of innocence I°S3 
 
 Intent presumed from acts i4o6 
 
 In a criminal case ^°S4 
 
 Presumption of negligence from upset 1234 
 
 Presumption of unchanged speed 1655 
 
 Presumption arising from master's presence 828 
 
 Presumptions as to whether acts are in scope of employment 881 
 
 No presumption of control against passenger as such 1220 
 
 Motorman's presumption '4I3 
 
 Right to assume motorman will be careful I4i4 
 
 Burden of Proof 
 
 The "burden of proof" ^^^2 
 
 Distinction between burden of proof and preponderance of evidence, 973 
 
 Burden of proof— "shifting" 974 
 
 "Shifting" of the burden of proof of contributory neghgence loio 
 
 Of contributory negligence '"^"^"isL 
 
 In actions for death 
 
 Burden of proving negligence 
 
 1 197 
 
INDEX 
 
 [References are to Sections.] 
 
 In action for negligence of repairman -. 576 
 
 Burden of proof of garage — ^keeper's negligence 544 
 
 In cases of collision with street cars 1432 
 
 In actions by passenger 1223 
 
 Of condition of vehicle 231 
 
 In action on insurance policy where company repairs damage 783 
 
 To show lawful operation , 1085 
 
 Of proximate cause 1061 
 
 In case of acts of servant 972 
 
 In actions of servant against master 929 
 
 See Witness 
 
 EXCAVATION 
 
 Pulling automobile out of excavation 1420 
 
 Subway excavation 1421 
 
 EXCEPTIONS 
 See Practicb 
 
 EXCISE 
 
 Defined 78 
 
 EXEMPTION 
 
 From local taxation 108 
 
 From taxes and licenses includes motor fee 68 
 
 Exempting motor vehicles and taxing horse-drawn vehicles 115 
 
 From taxation See Taxation 
 
 EXHAUST 
 
 Opinion of speed based on speed of 1697 
 
 EXPERIMENTS 
 
 Experiments made out of court 1635 
 
 EXPERTS 
 
 See Evidence 
 EXTORTION 
 
 By officers 5^4 
 
 FEDERAL 
 
 See United States 
 
 FEES 
 
 Defined 57 
 
 Not void as double taxation 69 
 
 Claim for return of excess fees 70 
 
 Classification of graded license 105 
 
 Graduated fees void as a police regulation 106 
 
 Proportioned to horsepower I09 
 
 Included in exemption from taxation 68 
 
 See Taxes 
 
 1 198 
 
INDEX 
 
 [References are to Sections.] 
 
 FEI.LOW SERVANT 
 
 When driver a fellow servant 021 
 
 Servant doing work for fellow-servant .^ ^^ .......... . 879 
 
 FENCE 
 
 Sitting on fence beside road totc 
 
 As curb tit 
 
 '^Q'l 
 
 Railings required under statute. See Highways 
 FINE 
 
 A "fine" described ^gp 
 
 Distinguished from penalty ^gg 
 
 FIRE ENGINE 
 
 Rights of 243 
 
 FIRE INSURANCE 
 See Insurance 
 
 FIREMEN 
 
 I/icenses 33 
 
 FOG 
 
 Care in 420 
 
 FOREIGNERS 
 
 Diplomatic corps 199^ 515 
 
 FORFEITURES 
 
 Penalties and 490 
 
 Forfeitures by way of damages 491 
 
 FRAUD 
 
 Fraud and deceit 770 
 
 In application for insurance 781 
 
 Representations , 763 
 
 Representations must have been acted upon . . -. 767 
 
 Opinions as representations 768 
 
 Price in connection with representations 764 
 
 Functions of the court and of the jury as to representations 766 
 
 Rescission for 669 et seq. 
 
 Recoupment for 672 
 
 Acquiescence in fraud 650 
 
 Collusive contract by agent 722 
 
 In sales 64S 
 
 Sets aside rule of caveat emptor 642 
 
 Seller's talk 729 
 
 Defects patent or latent 646 
 
 Waiver of defects by the buyer 6Si 
 
 Knowledge of defects based on failure of other cars 692 
 
 1 199 
 
INDEX 
 
 [References are to Sections.] 
 
 Sale through middleman , 649 
 
 lUsed cars 765 
 
 Fraud not resulting in pecuniary loss 647 
 
 Falsely pretending to be a prospective customer 648 
 
 Failure of consideration through. 632 
 
 Connected with warranty 742 
 
 FRAUDS, STATUTE OF 
 
 Considered 622 
 
 FRIGHT 
 
 Damages for 1733 
 
 See Negligence, Emergency 
 
 FRIGHTENING HORSES 
 Negligence by Operator of Automobile 
 
 Duty of operators in general 1x15 
 
 Equal rights on highway 1116 
 
 Where plaintiff a mere licensee 1117 
 
 Fright alone is not basis for liability 1118 
 
 , Duty to keep watch for horses 1119 
 
 Failing to stop when sees that horse is frightened 1120 
 
 Proceeding when horse shows no signs of fright 1121 
 
 Duty to drive past 1122 
 
 Turning off road to avoid horses 1123 
 
 Approaching horse without warning 1124 
 
 Where no signal to stop or signs of fright 1125 
 
 "Noise and appearance 1126 
 
 Duty to stop engine 1127 
 
 Blowing horn negligently 1128 
 
 "Hollering" to driver of team which does not turn out 1129 
 
 Driving too near to horses 1130 
 
 Driving close to animal 1131 
 
 Driving on wrong side of road 1132 
 
 Splashing horse 1 133 
 
 Escaping steam 1134 
 
 Smoke 1135 
 
 Care in assisting driver of horse 1136 
 
 Broken down machine left on road 1137 
 
 Speed as cause of fright 1138 
 
 When unlawful speed did not frighten horses 1139 
 
 Keeping within maximum statutory speed may be insufficient 1140 
 
 Runaway as proximate result 1141 
 
 Causing horses to run into obstruction 1142 
 
 Where injury which did occur could not be anticipated 1143 
 
 Horse frightened later after being brought under control 1144 
 
 Loss of value of horse by rendering him shy 1145 
 
 1200 
 
INDEX 
 
 [References are to Sections.] 
 
 When horse is uncontrollable g 
 
 Horse frightened by various motor vehicles lol 
 
 Noise frightening horse ' _ _' "^ 
 
 NegligBncb by Driver op Horsbs 
 
 In general 
 
 Driving horse past automobile "48 
 
 Where horse afraid of autos ulg 
 
 Prior negligence in using unruly horse no bar ucq 
 
 Character of horse jj_j 
 
 Leading horse " ^ 
 
 Where led horse swings across road ... 1153 
 
 Driver of horse lacking strength and skill uj^ 
 
 Deaf person riding horse j,72 
 
 Driving while asleep ] . . . . 1151; 
 
 Riding sideways on horse ugg 
 
 Horses left unattended 1157 
 
 Horses turning suddenly jjcg 
 
 Remaining in carriage when horse frightened 1159 
 
 Horse running into auto 1160 
 
 When automobile backing 1161 
 
 FROST 
 
 Speed where vision obstructed by frost 1447 
 
 GARAGE KEEPER 
 
 Defined — a wheelwright , 14 
 
 GARAGES 
 In General 
 
 Definitions and Scope 522 
 
 The business is lawful 523 
 
 Rule of respondeat superior as to garage keeper 524 
 
 Agency where car in hands of mechanic 849 
 
 Garage mechanic testing car 865 
 
 Chauffeur driving to get supplies 874 
 
 Agent delivering repaired goods 876 
 
 Duty to one entering garage on business 525 
 
 Right of lessee to remove his garage 526 
 
 Evidence of ownership 527 
 
 Driving out of garage on to street car track 1441 
 
 Storage and Care of Motor Vehicies 
 
 Relation of garage keeper to his customer 528 
 
 Commencement and termination of liability S29 
 
 Termination of bailment 53° 
 
 Title of garage-keeper 53i 
 
 Rights of Action of garage-keeper 532 
 
 I20I 
 76 
 
INDSX 
 
 [References are to Sections.] 
 
 Duty of garage-keepers 533 
 
 Garage-keeper not on insurer 534 
 
 Failure to redeliver to customer S3S 
 
 Garage-keepers liability for damage to car taken out unauthorizedly, S36 
 
 Liability for theft of articles left with him 537 
 
 Unauthorized use of vehicle by garage-keeper 538 
 
 Where servants of garage-keeper take car virithout authority 539 
 
 Authorized use of property — Deviations 540 
 
 Servant acting beyond his authority at the request of the owner ... 541 
 
 Permitting use of car by incompetent persons 542 
 
 Safe building 543 
 
 Burden of proof of garage-keeper's negligence S44 
 
 Prima facie case of negligence by a garage-keeper 545 
 
 Criminal liability 546 
 
 Functions of court and jury 547 
 
 Storage charges as affecting damages 1743 
 
 Rbnting 
 
 Hiring of vehicles 548 
 
 Hiring a vehicle and driver 866 
 
 Hirer selecting chauffeur paid by owner 867 
 
 Contract with garage to care for car and furnish driver when called 
 
 upon 854 
 
 Contract made on Sunday 549 
 
 Degree of diligence demanded L 550 
 
 Garage-keepers not common carriers 551 
 
 Duty to provide a safe vehicle 552 
 
 Evidence of unsafe vehicle 553 
 
 Duty to get customers when car breaks down 554 
 
 Obligation to guests of hirer 555 
 
 Effect of statute relating to unauthorized use 556 
 
 Liability of lessee for care of hired vehicle 557 
 
 Deviation from route by hirer 558 
 
 Renting car to incompetent person 559 
 
 Rule of respondeat superior 560. 
 
 Duty to provide a competent driver 561 
 
 Repair ot Motor Vehicles 
 
 Practice of garages 562 
 
 The contractual relation of the parties 563 
 
 General authority of chauffeur to order 563 
 
 Contract vitiated by agreement to give secret commissions to chauf- 
 feur, 564 
 
 Work done without authority 565 
 
 Amount of compensation 566 
 
 Evidence of overchanging other customers 567 
 
 I2Q2 
 
INDBX 
 
 [References are to Sections.] 
 
 Claim for repairs as defense to replevin 568 
 
 Defense that repairs improperly made 569 
 
 Responsibility for competency and diligence 570 
 
 Unreasonable detention 571 
 
 Delegation of duty 572 
 
 Duty of the repairer 573 
 
 Skilled labor 574 
 
 Extraordinary skill 575 
 
 Burden of proof, etc 576 
 
 Testing car on road 877 
 
 Liens for Storage and Repairs 
 
 Common law right to lien 577 
 
 Lien by agreement - 578 
 
 Circumstances under which a lien will attach 579 
 
 Liverjrman has no lien at common law S8o 
 
 No lien where owner uses car at will 581 
 
 Lien by statute 582 
 
 Consent to storage or repairs as element of lien 583 
 
 Chauffeur's authority S83 
 
 Authority to store car 583 
 
 Loss of lien by delivery of car S84 
 
 Retaking by force after loss of lien 58S 
 
 Priorities as against mortgages S86 
 
 Garage-keepers as warehousemen 587 
 
 Warehouseman's lien for storage charges 588 
 
 Interpleader to determine title SSp 
 
 As Nuisances 
 
 Livery stables as nuisances 590 
 
 Garages as nuisances 59i 
 
 Police power over 5^^ 
 
 Proceedings to restrain a nuisance S93 
 
 Restriction 
 
 Restrictions on use of land as affecting garages 594 
 
 GASOLINE 
 
 Gasoline, peculiarities of 3^4 
 
 Degree of care required ^^^ 
 
 Negligence in regard to gasoline 320 
 
 ■ 127 
 
 Gasoline a's a nuisance ^ ' 
 
 Gasoline not a nuisance per se 3 
 
 State statutes, local regulations, etc 329 
 
 Federal statutes 1 
 
 Danger from gasoline 
 
 1203 
 
INDEX 
 
 [References are to Sections.] 
 GIFT 
 
 Affecting damages 1758 
 
 GRADE CROSSINGS 
 
 See Rahroad Crossings 
 
 GROSS NEGUGENCE 
 See NjSGi,iGENce 
 
 GUEST 
 
 Guest as agent 817 
 
 Defendant allowing guest to drive 820 
 
 Driving under direction of guest of owner 821 
 
 Negligence of driver not imputed to his guests 1021 
 
 Obligation of garage-keeper to guests of hirer 555 
 
 Guest of driver cannot recover against owner 818 
 
 Guest of driver not liable 819 
 
 Duty of operator to guest 1219 
 
 See Passengbr 
 
 HACK LINE 
 
 Defined 61 
 
 HACKNEY 
 
 Includes automobile 8 
 
 HACKS 
 
 "Hack line" defined 1240 
 
 Concerning passengers in public hacks 1239 
 
 Rules and regulations applicable to motor vehicles 1241 
 
 Licensing acts 1242 
 
 Competency of driver — condition of the hack, etc 1243 
 
 Taxicabs or "hacks" 1230 
 
 See Carriers 
 
 HEADLIGHTS 
 
 Blinding 1 419 
 
 Appendix D, E. See further Lights 
 
 HEARSAY 
 
 Opinion incompetent if based on hearsay 1695 
 
 HIGHWAYS 
 In GenErai, 
 
 Highways defined > 267 
 
 Private roads 337 
 
 What is part of road 336 
 
 Streets distinguished from highways 388 
 
 One way streets 347 
 
 Paved street includes planked street 268 
 
 1204 
 
INDEX 
 
 [References are to Sections.] 
 
 Causeway not a bridge '. 269 
 
 Evidence that street is public highway 1051 
 
 When street unsafe for pedestrians " 1283 
 
 Pedestrian at regular crossing ' 1294 
 
 Pedestrian not at regular crossing ' 1295 
 
 Pedestrian crossing street in a diagonal course ,. 1293 
 
 Walking along street 1304 
 
 Marks on road as evidence iggg 
 
 Power of turnpike companies 41 
 
 Recui/ATiON OF Use op 
 
 Control of highways an exercise of the "police power" 28, 39, 270 
 
 Extent of the legislative supervision 271 
 
 Power of control means power to regulate use 272 
 
 Legislative power to exclude 273 
 
 Legislative control of highways includes streets, parks and public 
 
 places in cities and towns 274 
 
 Municipal power over traffic 164 
 
 Municipal regulation of 165 
 
 Power of municipalities to regulate use 166 
 
 Power to prohibit use 167 
 
 Regulation of speed in 168 
 
 "One way" streets 160 
 
 Turning up one way street 390 
 
 Traffic regulations 163 
 
 Appendix C 
 
 Right of Motor Vehicles to Use Highway 
 
 Right of public to use highway 27s 
 
 Purpose of the use 276 
 
 Right to use highways — A leading case 277 
 
 The right of motor vehicles to use the highways 278 
 
 Right to stand on highway 279 
 
 No superior right 280 
 
 Mutual rights of automobiles and bicycles 281 
 
 Prior use of highway no effect on rights of motor vehicles 282 
 
 The effect of violation of law 283 
 
 Duty of owner in case of breakdown 284 
 
 Municipal Liability foe Defect In 
 
 Duty of municipalities rests on statute 28s 
 
 Extent of duty 286 
 
 Duty respecting automobiles 287 
 
 What is a defect? 288 
 
 Stump outside traveled way 289 
 
 Pole near highway '"74 
 
 Abandoned automobile 290 
 
 1205 
 
INDEX 
 
 [References are to Sections.] 
 
 Rut 291 
 
 Large stones in road , 292 
 
 Rope across street 293 
 
 Notice of defect necessary 294 
 
 Obstruction of highways incident to repairs, building operations, and 
 
 traffic 29S 
 
 Railings and barriers 296 
 
 Liabilities for defect in highway and negligent driving 1048 
 
 Proximate cause 300 
 
 Condition of highway in another place 1642 
 
 Duty to light streets . . ; 297 
 
 Question of sufficiency of highway is for jury 298 
 
 Statutory liability for death and injuries 299 
 
 Death due to defect in highway I'SSS 
 
 Duty of Travelers 
 
 Rights and duties of travelers 301 
 
 Duty to follow the traveled path 302 
 
 Degree of care required of travelers 303 
 
 Rights of passengers 304 
 
 Negligence of driver 305 
 
 Driver failing to notice defect 306 
 
 Pedestrian crossing street not at regular crossing 1301 
 
 See Excavation 
 
 See Pedestrians, Street Railways, L,aw of the Road 
 
 HIRER 
 
 See Baii^; Garages 
 
 HITCHING ON 
 
 Climbing or hanging on behind— "hitching on" 1313 
 
 HOLE 
 
 See Excavation 
 
 HOMICIDE 
 
 Considered 1472-1483 
 
 See Criminal Law 
 
 HORN 
 
 Required 229 
 
 Blowing horn negligently 1128 
 
 Failure to sound horn as cause of accident 1071 
 
 See Signals 
 
 HORSE 
 
 See Animals 
 
 Frightening horses. See Frightening Horses 
 
 1206 
 
INDEX 
 
 HOSPITAL [References are to Sections.] 
 
 Hospital records <- „ 
 
 1050 
 
 HUMANITARIAN DOCTRINE 
 
 Considered 
 
 SeeNBGUGBNCE ""='"'"'* 
 
 HUSBAND AND WIFE 
 
 Negligence imputed as between husband and wife 1023 
 
 Wife as agent of husband 917 
 
 Damages in suit by married woman 1720 
 
 Liability for acts of child gi8 gig 
 
 Effect of family relation, See Nsgiigbnce 
 
 IDENTIFICATION 
 
 Evidence of 212 
 
 Purpose of motor vehicle legislation 47 
 
 Operator required to disclose identity after an accident 50 
 
 IGNORANCE 
 
 Ignorance of the law is no excuse 140 
 
 ILLEGALITY 
 
 Illegal act 1477 
 
 The effect of violation of law 283 
 
 Effect of violation of law, in operating motor as creating nuisance 312 
 Unlawful act of either party does not ipso facto bar a recovery for 
 
 negligence 1068 
 
 Right to assume that other car is traveling in proper course 398 
 
 Right to assume other car is moving at lawful speed 399 
 
 Coasting 1084, 1112, 1359 
 
 Contract vitiated by agreement to give secret commission to chauffeur 564 
 
 Illegal speed causing death 1478 
 
 Illegal speed as cause of accident 1069 
 
 Unlighted vehicle 416, 417 
 
 Effect of use in lottery 620 
 
 Driving on wrong side of road as negligence 354 
 
 Greater care needed when driving on wrong side of road 3SS 
 
 Driving on wrong side of road to avoid defects 357 
 
 Driving on wrong side to avoid vehicles 3S8 
 
 Liability for injuring one on wrong side of road 360 
 
 Driving on left — see-saw movements 361 
 
 Passing on right as negligence 372 
 
 Violation of traffic rules 392 
 
 Vehicle on left side of street , . 393 
 
 See NEGtiGENce, Violation of Law. See SpBBd 
 
 1207 
 
INDEX 
 
 [References are to Sections.] 
 
 II.I,NESS 
 
 Of driver 1501 
 
 Damages for , . . . 1062, 1728 
 
 INCONVENIENCE 
 
 Situations of inconvenience rather than of immediate danger 1012 
 
 INDEPENDENT CONTRACTOR 
 
 One hired to remove car from ditch 850 
 
 When driver an independent contractor , 851 
 
 INDICTMENT 
 
 Considered 482 
 
 INEVITABLE ACCIDENT 
 See Accident 
 
 INFANTS 
 
 Infants as employers 841 
 
 Infants in negligence cases 842 
 
 Minor's right to rescind 674 
 
 INFORMATION 
 
 Considered 482 
 
 INJUNCTION 
 
 Who may enforce jitney regulations — injunction 1255 
 
 To restrain use of garage 593 
 
 INSANE PERSONS 
 
 Liability of lunatic for acts of servant 844 
 
 INSPECTION 
 
 Duty of buyer to inspect promptly 684 
 
 Time allowed buyer for inspection 685 
 
 Right of inspection before acceptance 640 
 
 Duty of the purchaser to inspect — waiver of defects 7S8 
 
 INSTALMENTS 
 
 See Condition Ai, Sals 
 
 INSTRUCTOR 
 
 Chauffeur as 859 
 
 INSURANCE 
 
 In general 778 
 
 Character of policy 779 
 
 Whether fire originates within the vehicle 780 
 
 Misrepresentation 781 
 
 Knowledge of agent binding on company 782 
 
 Where company repairs damage 783 
 
 Condition that car be kept in certain building 784 
 
 1208 
 
INDEX 
 
 [References are to Sections.] 
 
 (Condition against renting 78^ 
 
 Accident while cranking 786 
 
 Skidding not a derailment 787 
 
 Collision 788 
 
 Theft .;!!;!!"!;;;!;;:;!;;"!;;;: 789 
 
 Against Liabhity 
 
 Validity of liability insurance 790 
 
 Effect of insurance on damages .' 797, 1758, 1777 
 
 Disclosure of fact that defendant is insured is error 796 
 
 When it may appear that defendant is insured 798 
 
 Power to insure against liability for negligence 791 
 
 Liability policy does not cover criminal prosecution 792 
 
 Character of relationship in liability policy 793 
 
 Notice to company where claim delayed 794 
 
 Recovery against officer of insured company 795 
 
 Collusive suit to fix liability on company 1218 
 
 INSURERS 
 
 Doctrine of "insurer" 232 
 
 Drivers not insurers 944 
 
 Garage keeper not 534 
 
 INTENT 
 
 Considered 1466 
 
 Intent in negligence 963 
 
 Intent and motive in actions of tort affecting damages 1714 
 
 INTERPLEADER 
 
 Interpleader to determine title 589 
 
 INTERSECTING STREET 
 
 Defined • 384 
 
 "Intersecting" streets includes street ending at corner 384 
 
 Operation at intersecting ways 44° 
 
 INTERSTATE BUSINESS 
 
 In what state business done 7°° 
 
 INTERSTATE TRAVEL 
 
 Traveling defined 189 
 
 Interstate travel ^9° 
 
 State statutes and the "police power" 191 
 
 "Nonresident" statutes '92 
 
 Taxing vehicles from another state 193 
 
 Taxing nonresidents, reciprocal provisions 194 
 
 Registration of nonresident owners valid I9S 
 
 Interstate pleasure travel beyond federal control I90 
 
 107 
 
 Interstate commerce =" 
 
 1209 
 
INDEX 
 
 [References are to Sections.] 
 
 Police powers 198 
 
 Ssmopsis of laws as to, See Appendix E 
 
 INTOXICATED 
 
 Defined 466 
 
 INTOXICATING UQUORS 
 
 Scope of treatment 119, 460 
 
 Intoxication — common law view 1500 
 
 Reputation of chauffeur for intemperance 815 
 
 Liability to servant for employing driver who drank 922 
 
 Chauffeur as passenger while intoxicated owner driving 927 
 
 Intoxication of driver as contributory negligence 1008A 
 
 Duty towards intoxicated pedestrian 137S 
 
 Negligence by and towards intoxicated person 1374 
 
 Intoxication not necessarily a bar to recovery 1376 
 
 Passenger remaining in car when driver intoxicated 1206 
 
 Operation under influence of 460-475 
 
 Taxation by way of license 120 
 
 Taxation and license distinguished 121 
 
 License fees not taxation 122 
 
 High license 124 
 
 Graded license in this connection 125 
 
 Revenue not the primary object of license 123 
 
 The Massachusetts statute 461 
 
 The words "spiritous" and "intoxicating" 462 
 
 Mixed liquors 4^3 
 
 Cider 4^4 
 
 Beer 46S 
 
 Under the Influence of Liquor 
 
 Definitions 466 
 
 "Intoxicate" defined 4^7 
 
 On the meaning of "influence" 468 
 
 Manifestations 4^9 
 
 Medical authorities 47° 
 
 Intent of law 471 
 
 Intoxication not an excuse 472 
 
 Evidence as to intoxication 473 
 
 In negligence cases 474 
 
 Under influence of drugs 475 
 
 JITNEYS 
 
 See Carriers 
 
 JOINT OWNERS 
 
 Considered 208 
 
 I2I0 
 
INDEX 
 
 [References are to Sections.] 
 JOINT TORTFEASORS 
 
 '^'Tf-'l ; ^°36.ioso 
 
 t,ast clear chance rule will not relieve one of two joint tortfeasors . . nil 
 
 Rule of joint responsibility 1507 
 
 Joint liability for racing 1525 
 
 Action for death under Massachusetts statute 1550 
 
 Joint defendants in case of punitive damages 1767 
 
 JOY RIDING 
 
 See Agency, DeviATioNs 
 
 JUDICIAI, NOTICE 
 
 Considered 1600 
 
 Of ordinances ig^ 
 
 Of possible speed 1653 
 
 JURISDICTION 
 
 "Jurisdiction of the court" 483 " 
 
 JURY 
 
 Prejudice of jurors 1582 
 
 Misconduct of jurors 1577 
 
 Forcing jury to agree 1573 
 
 See Practice 
 
 Instructions to, see Practice 
 
 LABORERS AND SPECTATORS 
 
 Persons engaged at work in the roadway 1342 
 
 Automobile backing in circle, hitting laborer 1343 
 
 Police officer 1344 
 
 Spectators and crowds , 1344A 
 
 Danger incurred in the discharge of duty — street laborers 1008 
 
 LACHES 
 
 In rescission 682 
 
 LARCENY 
 
 Theft of automobile 478 
 
 When theft of automobile is burglary 479 
 
 Special laws governing theft of automobile 4^ 
 
 Insurance against 789 
 
 By garage keeper S46 
 
 Liability for the theft of articles left with garage keeper 537 
 
 LAST CLEAR CHANCE 
 
 Considered 1107-1114 
 
 Head on collision, last clear chance I430 
 
 Last clear chance to avoid child '357 
 
 Traveler in dangerous position, last clear chance 1302 
 
 121 1 
 
INDEX 
 
 [References are to Sections.] 
 
 When defendant had last clear chance to avoid accident 1298. 
 
 Pleading last clear chance 1568 
 
 See NEGWceNCB 
 
 I.AUNDRY 
 
 Chauffeur going for 887 
 
 I,AW OF THE ROAD 
 In Generai, 
 
 Origin , 331 
 
 Nature and construction 332 
 
 General rights and duties 334 
 
 Equal rights of various classes of travelers 335 
 
 What is part of road 336 
 
 Private roads 337 
 
 Streets distinguished from highways 338 
 
 General rules as to the exercise of care '. 339 
 
 Duty to keep lookout ahead 340 
 
 Speed 341 
 
 Driving along the road when not meeting or passing 342 
 
 Duty of drivers of privileged vehicles 343 
 
 Party driving a light vehicle is bound to give way to a heavy loaded 
 
 one 344 
 
 In city streets , 345 
 
 Street railway tracks 346 
 
 One way streets 347 
 
 Slow vehicles to keep near curb 348 
 
 A driver is not bound under all circumstances to look behind when 
 
 crossing from one side to the other , 349 
 
 Traveling in procession 3S0 
 
 Motorcyclist bound by rules of road , . . . 351 
 
 Statutes defining, see Appendix A 
 Me£1Cing on Road 
 
 Duty to turn out 352 
 
 Duty when driving close to curb 353 
 
 Driving on wrong side of road as negligence 354 
 
 Greater care needed when driving on wrong side 355 
 
 Right to assume that other vehicles will keep to right 356 
 
 Driving on wrong side of road to avoid defects 357 
 
 Driving on wrong side to avoid vehicles 358 
 
 Liability for injuring one on wrong side of road 360 
 
 Failure to turn back after passing obstruction 359 
 
 Driving on left — seesaw movements 361 
 
 Overtaking and Passing 
 
 In general 362 
 
 Rule does not apply to pedestrians 363 
 
 I2I2 
 
INDEX 
 
 [References are to Sections.] 
 
 Rule as applied to street cars 364 
 
 Right to pass 365 
 
 Duty of car passing to signal 366 
 
 Signal by leading car 367 
 
 When vehicle passing does not turn aside 368 
 
 Negligence in turning to left in passing 369 
 
 Looking to one side while passing •. . 370 
 
 Cutting in 371 
 
 Passing on right as negligence 372 
 
 Presumption of negligence from collision in passing 373 
 
 Duty on passing 136 
 
 Duty of leading car to turn to right 374 
 
 Speed on passing 441 
 
 Leading vehicle turning to left or stopping ' 375 
 
 When leading vehicle does not turn aside 376 
 
 Leading vehicle wobbling 377 
 
 Driver of leading vehicle need not keep lookout behind 378 
 
 As to street cars overtaking 1425, 1426 
 
 Automobile overtaking bicycle 1186 
 
 Meeting at Corners 
 
 General rules 379 
 
 Duties reciprocal 380 
 
 Ordinary care sufficient 381 
 
 One reaching crossing first has right of way 382 
 
 "Crossings" 383 
 
 Speed at crossing 38S 
 
 Bicyclist turning corner at high speed 1189 
 
 Operation at intersecting ways 440 
 
 "Intersecting" streets includes street ending at corner 384 
 
 Speed where view obstructed 386 
 
 Looking straight ahead 387 
 
 Turning suddenly from centre of street ■ 388 
 
 Where driver's companion looks before turning 389 
 
 Signal before turning 39° 
 
 Signal where intersecting street closed 39i 
 
 Violation of traffic rules 392 
 
 Vehicle on left side of street 393 
 
 Duty to hug curb in turning to right 394 
 
 "Curb" applied to fence in street 39S 
 
 Turning up one way street 39 
 
 Cutting comer in turning to left 397 
 
 Right to assume that other car is traveling in the proper course .... 39» 
 
 Right to assume other car is moving at lawful speed 399 
 
 Duty to stop 
 
 1213 
 
INDEX 
 
 [References are to Sections.} 
 
 When one may speed up to avoid accident 401 
 
 Running on bridge '. 402 
 
 Duty on backing across corner 403 
 
 Vehicles Standing in Street 
 
 Standing vehicle 404 
 
 Standing carriages and cabs 40S 
 
 Leaving vehicle unattended 406 
 
 Leaving incompetent person in charge 407 
 
 Traveling at Night or When Vision Obscured 
 
 Care while traveling at night 408 
 
 Purpose of lights — driver responsible 409 
 
 Time of lighting lights 410 
 
 Lights on standing automobile 411 
 
 Dashboard is "front" of automobile 412 
 
 Driving without lights 413 
 
 Insufficient lights 414 
 
 Only one light 41S 
 
 Hitting unlighted vehicle 416 
 
 Unlighted bicycle 417 
 
 Lights on curve 418 
 
 Blinded by approaching headlight 4i9 
 
 Traveling in a mist or fog 420 
 
 Driver blinded by sun 421 
 
 Windshield blurred by rain 422 
 
 Violating Law of Road 
 
 Violating right of way 1077 
 
 Violation of law of road 1078 
 
 Criminal and civil liability for breach 333 
 
 Degree of care while violating law 1080 
 
 Traveling on wrong side of road as proximate cause of accident 1070 
 
 Driving on wrong side of road, frightening horses 1132 
 
 Automobile on wrong side of street 1188 
 
 Meeting car backing on wrong side of street 1191 
 
 Effect of violation of law, see Negligence 
 
 Pedestrians 
 
 Pedestrian on right hand side of road , 130S 
 
 Pedestrian in centre of street 1306 
 
 Failure to take second look when pedestrian has right of way 1288 
 
 Pedestrian's right to assume law of the road will be observed 1275 
 
 Pedestrian hurt when two vehicles passing 1337 
 
 Duty on alighting from street car to avoid vehicle on wrong side of 
 
 track 1322 
 
 Rights of traveller injured by racing 1529 
 
 See Pedestrians 
 
 1214 
 
INDEX 
 
 [References are to Sections.] 
 LEGISLATURE 
 
 Power of jO 
 
 Power to delegate its authority 36.41 
 
 Revenue powers 52 
 
 Power to fix duties of officers 100 
 
 Constitutional limitations of legislative power over municipalities . 155 
 LESSEE 
 
 Liability of lessee for care of hired vehicle 557 
 
 See further Garages 
 
 .LIABILITY INSURANCE 
 See Insubancb 
 
 LICENSES 
 
 In general j 81 
 
 Defined , 83 
 
 Classification 105 
 
 License not a contract 145 
 
 Not a tax 88, 8g 
 
 Taxation and license distinguished 121 
 
 License fees not taxation 122 
 
 Revenue not the primary object of license 123 
 
 "High license" .' 124 
 
 Graded license in this connection 125 
 
 Identified with occupation tax and excise 80 
 
 License tax 176 
 
 Not void as authorizing imprisonment for debt 94 
 
 In excess of cost of registration , . . . . 107 
 
 To operate must be personal 84 
 
 License obtained by concealing disability 263 
 
 New license required under new law 93 
 
 Delegation of authority 99 
 
 Jurisdiction of licensing officer 101 
 
 Municipal authority 102 
 
 Municipal power to regulate by license 162 
 
 Power to regulate dose not imply power to license for revenue 174 
 
 Municipal power to license is usually conferred by the legislature . . I75 
 
 City license as regulation 103 
 
 By counties 95 
 
 Firemen's 33 
 
 Steam engineers • • 33 
 
 Right of licensee to rely on his license 148 
 
 Proof of license 1662 
 
 Unlicensed operators 264 
 
 Of operator, synopsis of laws as to, See Appendix E. To operate, see 
 Chauffeurs. See Registration, Taxation 
 
 1215 
 
INDEX 
 
 [References are to Sections.] 
 
 SuSPfiNSION AND Rbvocahon 
 
 General principle 141 
 
 Revocation of licenses 142 
 
 Suspension and revocation in Massachusetts I43 
 
 The rule in other states 144 
 
 Ivicense not a contract , 145 
 
 Revocation not a deprivation of property 146 
 
 Delegated authority to revoke 147 
 
 Right of licensee to rely on his license 148 
 
 Meaning of the word "conviction" 149 
 
 What amounts to a "conviction" to work a forfeiture of license 150 
 
 Deprivation of license in addition to punishment iSi 
 
 Duty of licensing officials on convictions 152 
 
 Licensee's claim that revocation is unconstitutional 153 
 
 WENS 
 
 Scope of chapter 937 
 
 Recording of mortgage 938 
 
 Priorities 939 
 
 Priorities as against mortgages 586 
 
 Conversion 940 
 
 Right of action for conversion not shut off by foreclosure of mortgage 941 
 
 Liens by statute in damage cases 941A 
 
 Of vendor 657 
 
 Claim for repairs as defense to replevin 568 
 
 Of garage keeper, See Garages 
 
 LIGHTS 
 
 Duty to light streets 297 
 
 Purpose of lights — driver responsible 409 
 
 Failure to carry lights as cause of accident 1073 
 
 Time of lighting lights 410 
 
 Dashboard is "front" of automobile 412 
 
 Driving without lights 413 
 
 Passenger remaining in unlighted car 1209 
 
 Headlight of train not lighted « 1410 
 
 Duty of engineer to see head lights 1405 
 
 Automobile running into train at night 1403 
 
 Insufficient lights 414 
 
 Only one light 41S 
 
 Hitting unlighted vehicle 416 
 
 Unlighted bicycle 417 
 
 Lights on curve 418 
 
 Blinded by approaching headlight 419 
 
 Dazzling headlights on street car 1453 
 
 Lights on standing automobile 411 
 
 1216 
 
INDEX 
 
 [References are to Sections.] 
 
 Leaving car standing unlighted 908 
 
 Pedestrian's failure to see unlighted automobile 1280 
 
 Pedestrian with lantern looking for lost object 1333 
 
 Headlight regulations, See Appendix D, E 
 
 LISTEN 
 
 Duty to listen at street car tracks 1434- 1437 
 
 At grade crossing 1390-1394 
 
 Pedestrian's duty 1281-1300 
 
 LIVERY STABLE 
 
 Livery stables as nuisances 590 
 
 LOOK 
 
 Duty to keep lookout ahead 340 
 
 Looking straight ahead at corner , 387 
 
 Where driver's companion looks before turning 389 
 
 Duty to look and listen at street car tracks 1434-1437 
 
 At grade-crossing , 1388-1392 
 
 Looking behind 1423 
 
 Driving in zigzag course looking behind 1263 
 
 Driver of leading vehicle need not keep lookout behind 378 
 
 A driver is not bound under all circumstances to look behind when 
 
 crossing from one side to the other 349 
 
 Pedestrian's duty 1281-1300 
 
 LOTTERY 
 
 Effect of use in on validity of sale 620 
 
 LUNATIC 
 
 See iNSANg Persons 
 
 MAIL 
 
 The United States mail 200 
 
 MALICE 
 
 Considered 1467-1470 
 
 MALUM PROHIBITUM 
 
 Malice in mala prohibita '4^9 
 
 MALUM IN SE 
 
 Malice in mala in se ^47° 
 
 MANSLAUGHTER 
 See Ceiminai, Law 
 
 MANUFACTURERS 
 
 Scope of chapter ^ 
 
 Duty of the manufacturer 59° 
 
 . . , . . 597 
 
 Dangerous agencies 
 
 1217 
 77 
 
INDEX 
 
 [References are to Sections.] 
 
 Duty to exercise reasonable care 598 
 
 The relation between manufacturer and customer 601 
 
 Rule of caveat emptor in sales by manufacturers " 769 
 
 Remedies of the customer 602 
 
 Remedies of the manufacturer 603 
 
 No privity between manufacturer and third parties 604 
 
 Rule when defect is obvious or disclosed 605 
 
 Liability of manufacturer for negligence in delivering to customer . . 862 
 Liability of manufacturer to third parties for selling defective ap- 
 pliance 606 
 
 Liability of manufacturer for driver in race 1530 
 
 Liability to passengers 607 
 
 Assembled car with defective parts 608 
 
 Criminal liability 609 
 
 Statutes governing condition and equipment of vehicles 610 
 
 MAPS 
 
 Models, maps and diagrams as evidence 1660 
 
 MARKET PRICE 
 
 Defined 663 
 
 MASTER AND SERVANT 
 See Agbncy 
 
 MEALS 
 
 Chauffeur going to 886 
 
 MECHANIC 
 See Garages 
 
 MINOR 
 
 See Infants 
 
 MISADVENTURE 
 
 Considered I492, I496 
 
 MISDEMEANORS 
 
 Arrest in case of 5i7. S18 
 
 Parties I49i 
 
 All are principals in misdemeanors 446 
 
 All concerned are principals iSio 
 
 Liability of master 932 
 
 Fines penalties and forfeitures in 488 
 
 See Crimes 
 
 MISREPRESENTATION 
 See Fraud. 
 
 MIST 
 
 Care in 420 
 
 1218 
 
INDEX 
 
 [References are to Sections.] 
 
 MISTAKE 
 
 In sales ^ 
 
 Rescission on account of .. 644 
 
 Mistake of judgment 1502 
 
 MORTAUTY TABLES 
 
 Considered jg-p 
 
 MORTGAGES 
 
 Validity of by one who had made partial payment 618 
 
 Recording of mortgage 938 
 
 Liability of mortgagee in possession of business for acts of agent . . 84s 
 
 Priorities ". 939 
 
 Priorities of liens as against 586 
 
 Foreclosure does not affect action for conversion 941 
 
 MOTIVE 
 
 Motive for haste 1665 
 
 See Intent 
 
 MOTOR 
 
 Defined 10 
 
 MOTOR VEHICLES 
 
 Class legislation applied to 45 
 
 Nature of laws 46 
 
 Includes motorcycles 3 
 
 See AuTOMOBUE 
 
 MOTORCYCLE 
 
 Included under automobile 2 
 
 Included under motor vehicle 3 
 
 Included under carriage 4 
 
 Forbidding passenger on handlebars of motorcycle 242 
 
 Motorcyclist bending over machine 243 
 
 Motorcyclist bound by rules of road 3SI 
 
 Overtaking on right 372 
 
 See Vehicle 
 
 MOTORISTS 
 
 Ruled by general law applied to 44 
 
 The motorist's true point of view 948 
 
 Duty of in general 948-957 
 
 MUNICIPAL CORPORATIONS 
 
 Creation and control of municipal corporations iS4 
 
 Constitutional limitations of legislative power i5S 
 
 Municipal powers described 'So 
 
 Police power of cities and towns '57 
 
 I219 
 
INDEX 
 
 [References are to Sections.] 
 
 Extent of municipal jurisdiction 158 
 
 Delegation of authority to 37. 38 
 
 Power to delegate authority 161 
 
 Municipal power to regulate by license 162 
 
 Authority to impose license fees 102 
 
 City license as regulation 103 
 
 Vehicles exempted from license tax 112 
 
 Ordinances 178 
 
 Requisites of a valid ordinance 179 
 
 Construction of ordinances 139 
 
 What is meant by "reasonable" 180 
 
 "By-law" defined 181 
 
 "Regulation" defined 182 
 
 Judicial notice of ordinances and how pleaded 183 
 
 Ordinances and regulations — how pleaded 184 
 
 Ordinances — how proved '. 185 
 
 Competency of an ordinance in a negligence case 186 
 
 Liability of city for acts of employes 823 
 
 Liability for defect in highway 28S-3CX) 
 
 Power of public officers to purchase or hire automobiles 188 
 
 Subjects Regui,ated 
 
 Regulating competency of operators 171 
 
 Traffic regulations 163 
 
 Implied power of municipalities to control traffic 164 
 
 Ordinances regulating speed and stopping of street cars 1449 
 
 Power of municipalities to regulate speed 168 
 
 Municipal regulation of speed and use in Massachusetts 165 
 
 Power of municipalities to regulate use 166 
 
 "One way" streets 160 
 
 Rights of municipalities to allow racing 1526 
 
 Power to prohibit use 167 
 
 Meaning of the expression "business part" of a city or town 438 
 
 Power of municipalities to require use of number plates 169 
 
 Power of municipalities to regulate motor vehicles for hire 170 
 
 Validity of special regulations of jitneys 1247-1256 
 
 Signs 187 
 
 Authority to enact smoke laws 239 
 
 Suburban residents and nonresidents 159 
 
 Taxation 
 
 Municipal taxation 172 
 
 Power to tax 173 
 
 Power to regulate does not imply power to license for revenue 174 
 
 Municipal power to license is usually conferred by the legislature ... 175 
 
 1220 
 
INDEX 
 
 [References are to Sections.] 
 
 Ivicense tax [ 176 
 
 Double taxation in this connection 177 
 
 NEGIvIGENCE 
 In GeNERAi, 
 
 Principles controlling operation 217 
 
 The rule in the United States 218 
 
 Canadian and English rule 219 
 
 Doctrine of insurer 232 
 
 Pure accident , 234 
 
 Care required of public chauffeurs 258 
 
 Excuse of "obedience to orders," 2S4 
 
 Conflict of orders and duty 255 
 
 Conflict of duties 256 
 
 Condition of vehicle 220-230 
 
 Liability for driving defective machine 225 
 
 Duty of automobilist to slow down on approaching bicyclist 1187 
 
 Comparative 1003 
 
 Driving through crowd 1265 
 
 Manufacturer's duty to exercise reasonable care 598 
 
 On handlebars of motorcycle 242 
 
 Bending over motorcycle 243 
 
 Of selling agents 7i9 
 
 Skidding .' 235-238 
 
 Towing "93 
 
 Subsequent negligence enhancing damages 1735 
 
 See BiCYCi^s, Chauffburs, Children, Criminal Negligence, Garages ; In- 
 surance against liability for, see Insurance. See Looking, Operation. 
 Overtaking— See Law of the Road. See Passengers. Passing, see Law 
 OP THE Road. See Pedestrians, Railroad Crossings, Seesaw Motions. 
 See Speed Limitations. Standing vehicle, see Standing. Traveling at 
 night, see Law of the Road. See Women 
 Actionable Negligence in General 
 
 Scope • ^ 
 
 Actionable negligence distinguished 9°° 
 
 Civil as well as criminal liability 961 
 
 Massachusetts statute on this subject • ^ 
 
 Intent in negligence ^- 503 
 
 The relation of duty to negligence - 9°4 
 
 Damage must follow negligence 90S 
 
 Standards for measuring negligence 966 
 
 The question of negligence is one of law as well as of fact 967 
 
 Functions of the court and of the jury 968 
 
 Duty of the court ■ ^^ 
 
 I22I 
 
INDgX 
 
 [References are to Sections.] 
 
 Dismissing the complaint 970 
 
 Burden of proving negligence 971 
 
 Burden of proof in case of acts of servant 972 
 
 Distinction between burden of proof and preponderance of evidence 973 
 
 Burden of proof — "shifting" 974 
 
 Classification 
 
 Scope of chapter 942 
 
 Negligence defined 943 
 
 Not insurers 944 
 
 Duty to keep car under control 945 
 
 Ingredients of negligence 946 
 
 Negligence described 947 
 
 The motorist's true point of view 948 
 
 The basis for the consideration 949 
 
 "Perfect vigilance" 950 
 
 Degrees of negligence 951 
 
 The motorist and "ordinary" negligence 952 
 
 Aspects of negligence 953 
 
 Criminal negligence 954 
 
 Negligence per se , 955 
 
 Regarding acts or omissions, mala in se 956 
 
 Summary ■ 957 
 
 Division of subject 958 
 
 Ordinary Carb 
 
 In general 975 
 
 Degrees of care 976 
 
 Degree of care varies with character of vehicle 977 
 
 Dangerous conditions or situations 978 
 
 Care of prudent man .• 979 
 
 Care of beginner 980 
 
 Ordinary care does not generally involve anticipating another's negli- 
 gence 981 
 
 Reliance on care on the part of others 982 
 
 "Ordinary care" applies to the safety of proprety as well as to that of 
 
 persons ^ 983 
 
 General rules as to the exercise of care 339 
 
 Care after seeing danger insufficient 456 
 
 The true rule of diligence 233 
 
 Degree of care of'chauffeurs not less than that of motormen 251 
 
 Degree of care demanded of motormen 1445 
 
 Ordinary care sufficient at corners 381 
 
 In handling gasoline 325, 326 
 
 Standard of care in manslaughter cases 1479 
 
 Evidence of "custom" on the question of negligence 984 
 
 1222 
 
INDEX 
 
 [References are to Sections.] 
 
 Evidence of habits of the driver 985 
 
 Observance of care for others while exercising lawful right— noise 986 
 
 Speed as negligence 987 
 
 What is high speed 988 
 
 Pure accident, act of God, vis major, unevitable accident 989 
 
 Contributory 
 
 Power to avoid results of defendant's negligence looo 
 
 Concurring negligence of both plaintiff and defendant looi 
 
 "Slight" contributory negligence barring recovery 1002 
 
 Comparative negligence 1003 
 
 Culpable negligence by either party 1004 
 
 Gross negligence by either party 1005 
 
 Not negligent to fail to anticipate another's negligence under all cir- 
 cumstances loog 
 
 If defendant has thrown plaintiff off his guard loio 
 
 Application of the foregoing principles loii 
 
 Situations of inconvenience rather than of immediate danger 1012 
 
 Plaintiff's negligence enhancing injury 1013 
 
 In actions for death iS4i 
 
 No bar in an action for reckless, or wilful or wanton negligence by de- 
 fendant 1006, 1490, IS22 
 
 No defense in criminal cases I49S 
 
 Danger incurred in the discharge of duty — street laborers 1008 
 
 Where one voluntarily incurs danger 1007 
 
 The risks assumed by the employe 926 
 
 Sitting on floor of car 1008B 
 
 Plaintiff mentally disturbed noo 
 
 Intoxication in negligence cases 474 
 
 Intoxication of driver 1008A 
 
 Contributory negligence of chauffeur 259 
 
 Of chauffeur obeying instructions 93° 
 
 Of children 1349-1360 
 
 Of passenger 1199-1214 
 
 Of rescuers— saving life i°°7, 1104 
 
 Contributory negligence of pedestrian only in exceptional case 1271 
 
 Burden of proof • ^°^4 
 
 Point of agreement in all jurisdiction loiS 
 
 "Shifting" of the burden of proof ; I°i6 
 
 Burden of proving contributory negligence in states following the 
 
 "general" rule ■ '°'7 
 
 "Massachusetts" rule concerning burden of proof m the matter of 
 contributory negligence 
 
 How pleaded • ','",", ,esfi 
 
 Right to instruction as to contributory neghgence pleaded 1500 
 
 1223 
 
INDEX 
 
 [References are to Sections.] 
 Imputed 
 
 Doctrine of identification of passenger IIPS 
 
 Drivers negligence no longer imputable to passenger 1 196 
 
 The modern doctrine generally 1197 
 
 The rule does not apply in cases of master and servant, etc 1198 
 
 Statement of the "American rule" 1019 
 
 Negligence of driver not imputed to occupant of vehicle IQ20 
 
 Negligence of driver not imputed to his guests 1021 
 
 Passenger for hire 1022 
 
 Husband and wife 1023 
 
 Where engaged in common enterprise 1024 
 
 Validity of statute imputing negligence of driver to certain occupants 1025 
 
 In actions for death 1026 
 
 Negligence of another the direct cause of accident 1027 
 
 Negligence of driver imputed when the sole cause of accident 1028 
 
 Negligence imputed to one suing in representative capacity 1029 
 
 Doctrine of "identification" — parents 1030 
 
 Negligence of parent permitting child on street 1360 
 
 In cases of "gross" negligence 1031 
 
 Application of the principle of imputed negligence in the different 
 
 jurisdictions as to children 1032 
 
 "Massachusetts rule" concerning imputed negligence in cases of chil- 
 dren 1033 
 
 When negligence not imputed in the case of children — general rule . . 1034 
 
 Negligence of chauffeur of public auto not imputed 1035 
 
 Concurrent 
 
 Definition 1036 
 
 Where there is apparently more than one cause 1037 
 
 Concurrent negligence of two persons injuring a third — joint re- 
 sponsibility 1038 
 
 Act or omission of a third party 1039 
 
 When an accident and negligence combine to bring about an injury . . ■ 1040 
 
 Defendants engaged in common enterprise 1041 
 
 Servant injured by joint negligence of master and a third person. . . . 1042 
 
 Liabilities of master and chauffeur 1043 
 
 Passenger injured in collision 1044 
 
 Pedestrian injured as result of collision 1045 
 
 Defendants racing injuring pedestrian 1046 
 
 Horse frightentd by various motor vehicles 1047 
 
 Defect in highway and negligent driving 1048 
 
 Practice limiting effect of evidence 1049 
 
 Effect of release 1050 
 
 Wilful and Wanton and Gross 
 
 Described and distinguished 1517 
 
 1224 
 
INDEX 
 
 [References are to Sections.] 
 
 Characteristics of various forms 1518 
 
 Gross negligence ' jgjn 
 
 Gross negligence by either party 1005 
 
 Wanton and wilful negligence 1520 
 
 Recklessness distinguished from negligence 453 
 
 Contributory negligence no bar in an action for reckless, or wilful or 
 
 wanton negligence by defendant 1006, 1522 
 
 Negligence not imputed in cases of "gross" negligence 1031 
 
 Responsibility of principal for wilful and wanton negligence of em- 
 ploye , . 900 
 
 Gross negligence towards child 1363 
 
 In action for death 1537 
 
 "Gross" negligence under Massachusetts statute for death 1548 
 
 Functions of the court and of the jury / 1521 
 
 Measure of damages in these cases 1523, 1736 
 
 Proximate Cause 
 
 Considered 1563 
 
 Distinction between causes and conditions 1051 
 
 Proximate cause and remote cause in general 1052 
 
 When plaintiff's negligence the more remote cause 1113 
 
 Cases in illustration of the general doctrine 1053 
 
 The diflSculty not with the rule, but with its application 1054 
 
 Sequence of consequences loSS 
 
 Consequences must be such as naturally to have been apprehended. . . . 1056 
 
 Where particular result improbable 1471 
 
 Where injury which did occur could not be anticipated 1 143 
 
 Intervention of independent responsible cause 1057 
 
 Negligent act injurious to a third party through an innocent inter- 
 mediary 1058 
 
 Proof not necessarily positive or direct 1059 
 
 Functions of the court and of the jury on this subject 1060 
 
 Burden of proof of proximate cause 1061, 1648 
 
 Disease resulting from negligence 1062 
 
 Negligence aggravating disease or injury 1063 
 
 Causing illness resulting in death I47S 
 
 In actions for death I476, iS40 
 
 Liability for mental suffering, fright, or nervous shock 1064 
 
 Fright of animals— Act of driver lO^S 
 
 Causing horses to run into obstruction 1142 
 
 Horse frightened later after being brought under control ii44 
 
 Where operator turns to avoid another and injures plaintiff 1066 
 
 Sudden starting of car steered by another 1067 
 
 Crowding vehicle on to track '4^9 
 
 Unlawful act of either party does not ipso facto bar a recovery for 
 
 ,. 1068 
 
 negligence 
 
 1225 
 
INDSX 
 
 [References are to Sections.] 
 
 The violation of law must be a proximate cause, to bar recovery 1082 
 
 Illegal speed as caused of accident 1069 
 
 Illegal speed as cause of battery 1487 
 
 Traveling on wrong side of road 1070 
 
 Failure to sound horn 1071 
 
 Failure to carry numbers 1072 
 
 Failure to carry numbers not cause of accident 1072 
 
 Failure to carry lights 1073 
 
 Pole near highway , 1074 
 
 Emergencies 
 
 In general ic^ 
 
 I>angerous conditions or situations 978 
 
 Where the peril is the result of the plaintiff's own fault 1089 
 
 Where the situation of peril is caused by conditions arising through 
 
 no fault of plaintiff ^ 1090 
 
 Where the peril is the result of the plaintiff's own fault 1089 
 
 Error of judgment 1092 
 
 Taking wrong course 1093 
 
 If different course would have prevented accident 1094 
 
 Where either course might be careful 1095 
 
 Rash apprehension of non-existent danger 1096 
 
 Fright of children , 1355 
 
 Fright arid terror of passengers 1225 
 
 Running in front of auto 1097, 1308 
 
 Pedestrian's failure to run 1277 
 
 Hesitating in front of auto 1098 
 
 Jumping in front of automobile 1307 
 
 Jumping from the vehicle 257 
 
 Failure of passenger to jump 1208 
 
 Seesaw movements 361, 1099, 1182, 1264, 1279, 1310 
 
 Party disturbed mentally at time of accident 1 100 
 
 When servant called upon to act in emergencies 924 
 
 Duty of driver in emergency iioi 
 
 Duty of defendant to anticipate fear of plaintiff 1 102 
 
 Duty to hit animal rather than person 1103 
 
 Rescuers — Attempt to save life 1007, 1104 
 
 Question for jury 1105 
 
 Jury should consider that had no time to decide '. 1106 
 
 Humanitarian Doctrine— "Last Clear Opportunity" 
 
 "Last clear opportunity" 1107 
 
 Rule not applicable where defendant should have discovered plaintiff's 
 
 danger and did not 1108 
 
 Application of humanitarian doctrine 1109 
 
 Effect of statute , mo 
 
 1226 
 
INDBX 
 
 [References are to Sections.] 
 
 Will not relieve one of two joint tort-feasors iiii 
 
 Plaintiff coasting illegally 1112 
 
 When plaintiff's negligence the more remote cause 11 13 
 
 When there is opportunity to avoid result of plaintiff's negligence ... 11 14 
 See Last Ci,eAR Chancb 
 
 Violation of Law 
 
 Violation of law as negligence 283 
 
 Violation of statute and ordinance distinguished 1075 
 
 When plaintiff violates the statute 1076 
 
 Degree of care while violating law 1080 
 
 Using best judgment though violating statute 1081 
 
 The violation must be a proximate cause 1082 
 
 Prima facie case in this connection 1083 
 
 Burden of proof to show lawful operation 1085 
 
 Coasting illegally 1084, 1112, 1359 
 
 Violating right of way 1077 
 
 Violation of law of road 1078 
 
 Driving on wrong side of road as negligence 354 
 
 Greater care needed when driving on wrong side 3SS 
 
 Right to assume that other vehicles will keep to right 356 
 
 Driving on wrong side of road to avoid defects 357 
 
 Driving on wrong side to avoid vehicles 358 
 
 Illegal speed prima facie proof of ; 54 
 
 Unlawful speed evidence of negligence 1079 
 
 Defense of not exceeding speed limitations 437 
 
 Unregistered vehicle on the highway 1086 
 
 The "Massachusetts rule" as to unregistered vehicles 1087 
 
 Failure of operator to procure license as evidence of negligence 264 
 
 See further, Effect of Vamous Ilugai, Acts 1068-1073 
 
 See further, Illegality 
 
 NIGHT 
 
 Care while traveling at night 4o8 
 
 NOISE 
 
 As negligence 9^ 
 
 Noise frightening horses ^'2° 
 
 Indicating speed ^^37 
 
 Failure of driver to hear screams 1673 
 
 NOLO 
 
 Pleading "'nolo contendere" 485 
 
 NON-RESIDENTS 
 
 "Non-resident" statutes '9^ 
 
 Power of cities over '^^ 
 
 Registration of ^^^ 
 
 1227 
 
[References are to Sections.] 
 
 Taxation 194 
 
 Pleasure vehicles and those of non-residents exempted 114 
 
 Sjmopsis of laws as to. See Appendix E 
 
 NUISANCE 
 
 The common law 307 
 
 Classification of nuisance 308 
 
 Remedies 309 
 
 Effect of statute 310 
 
 Effect of violation of laws 32 
 
 Garages as nuisances SPi 
 
 Livery stables as nuisances 590 
 
 Gasoline as a nuisance 327 
 
 Gasoline not a nuisance per se 328 
 
 Motor vehicle not a nuisance 311 
 
 Smoke as 239 
 
 Nuisance from speeding 1489 
 
 NUMBER PLATES 
 
 Power to require 28 
 
 Power of municipalities to require use of number plates 169 
 
 Identification and restraint as purpose 47 
 
 Display of not void as unreasonable search or self-incrimination .... 48 
 
 Where not furnished 49 
 
 Making duplicates 481B 
 
 Synopsis of statutes as to. See Appendix E 
 
 OBSTRUCTIONS 
 
 Failure to turn back after passing obstruction 359 
 
 Speed where view obstructed 386 
 
 Operation where view is obstructed 439 
 
 OFFICERS 
 
 Enforcing motor vehicle law 497 et seq. 
 
 Responsibility of for arrest 519 
 
 Experience acting in official capacity 1686 
 
 Duties fixed by legislature 100 
 
 Jurisdiction of licensing officer ■ loi 
 
 OIL 
 
 Damages from defective oil 775 
 
 ONE WAY STREET 
 
 Turning up one way street 396 
 
 OPERATION 
 
 Scope of chapter 214 
 
 Meaning of the word "operation" 215 
 
 Who is the user of a motor vehicle ? 216 
 
 1228 
 
INDEX 
 
 [References are to Sections.] 
 
 Principles controlling operation ^. . . . 217 
 
 The rule in the United States 218 
 
 Canadian and English rule 219 
 
 The true rule of diligence 233 
 
 Seesaw motions 361, 1099, 1182, 1264, 1279, 1310 
 
 Driving in zigzag course looking behind 1263 
 
 Care of driver in rear seat 1262 
 
 Driving in low seat 241 
 
 Forbidding passenger on handlebars of motorcycle 242 
 
 Motorcyclist bending over machine 243 
 
 Doctrine of insurer , 232 
 
 Pure accident 234 
 
 "Skidding" 235 
 
 Failure to steer when skidding 236 
 
 Skidding on wet car tracks 237 
 
 Evidence in skidding cases 238 
 
 Smoke laws 239 
 
 Collision with permanent structure 240 
 
 Reckless driving as applied to passengers 1224 
 
 OPERATOR 
 
 Regulating competency of operators 171 
 
 Competency regulated under police power 31 
 
 Examination in case of owners 35 
 
 Personal character as factor in awarding licenses 34 
 
 Duty to provide a competent driver S6i 
 
 Licensed operator to accompany driver 32 
 
 Liability for renting car to incompetent person 559 
 
 Testimony of operator 1641 
 
 Duty to stop in case of accident 5°, 136 
 
 Required to disclose identity after an accident So 
 
 See Chauffeurs 
 
 OPINIONS 
 
 As representations 768 
 
 Expert and non-expert opinion evidence, see EvidencB. 
 
 ORDINANCES 
 
 Defined ''^S 
 
 Requisites of a valid ordinance ^79 
 
 What is meant by "reasonable" 180 
 
 Construction of ordinances ^39 
 
 Competency of an ordinance in a negligence case 186 
 
 Violation of statute and ordinance distinguished 107S 
 
 How proved ' ^ 
 
 Ordinances or special rules, how pleaded 184, iS5S 
 
 See Statutes, see Municipal Corporations 
 
 1229 
 
INDEX 
 
 [References are to Sections.] 
 OVERTAKING 
 
 See Law of the Road 
 
 OWNERS 
 
 Scope of chapter 204 
 
 Definition of an owner absolute 206 
 
 Ownership imports the idea of control 207 
 
 Joint owners, associations 208, 843 
 
 Examination for license • 35 
 
 Circumstances showing ownership 209 
 
 Whether father or son owned car 912 
 
 Registration as evidence of ownership 210 
 
 Admissions as evidence of ownership 2ll 
 
 Declarations as evidence of ownership 1613 
 
 Evidence of identification 212 
 
 Massachusetts statute 213 
 
 The relation between manufacturer and customer 601 
 
 Remedies of the customer against manufacturer 602 
 
 Remedies of the manufacturer against the owner 603 
 
 Responsibility of owners — Generally 205 
 
 Liability of owners to penalty for over-speeding 443 
 
 Statutes imposing liability on 837 
 
 Liens by statute in damage cases 94iA 
 
 LiabiHty of joint owners 208, 843 
 
 Responsibility on the part of purchasers to the public 599 
 
 Customer's implied engagement with the public 600 
 
 Right of damages where car driven by chauffeur on his own busi- 
 ness 873 
 
 PARENT AND CHILD 
 
 Relationship of parent and child, etc 901 
 
 Family car used for family purposes 902 
 
 Where son drives with father's permission 903 
 
 Son driving parent 904 
 
 Father's car taken by son without permission 905 
 
 Where son learning to drive 906 
 
 Father has burden to prove son had no authority 907 
 
 Son following father's custom in leaving car unlighted 908 
 
 Father's liability for negligence of adult son 909 
 
 Liability of parent for allowing incompetent child to run car 910 
 
 Child allowing another to drive 911 
 
 Whether automobile belongs to son 912 
 
 Whether driver was servant of absent parent or of child 913 
 
 Members of family in control in owner's absence 914 
 
 Driver acting under orders from one of family 915 
 
 Wife liable for act of son gig 
 
 1230 
 
IND^X 
 
 [References are to Sections.] 
 
 When husband and wife both liable for act of child oio 
 
 Doctrine of "identification"— parents 1030 
 
 Application of the principle of imputed negligence in the different 
 
 ^^ jurisdictions as to children ^^^0, 1032 
 
 "Massachusetts rule" concerning imputed negligence in cases of 
 
 •children ^^^^ 
 
 When negligence not imputed in the case of children— general rule 1034 
 
 Parent as dependant upon minor son 15,6 
 
 PARK COMMISSIONERS 
 
 Delegation of authority to 37 ■?8 
 
 PARKS 
 
 Police power over 274 
 
 PARTIES 
 
 Wealth of defendant or that he is a lawyer immaterial 1633 
 
 Financial condition of parties referred to in charge 1594 
 
 Circumstances of the parties affecting damages 1731 
 
 All principals in misdemeanors 446 
 
 Joint liability for reckless driving 458 
 
 PARTNERS 
 
 Liability for negligence of 839 
 
 Rights of survivors to continue agency 739 
 
 PASSENGERS 
 Rights and Liabilities 
 
 Unregistered vehicle — rights of passengers 1215 
 
 Liability of passenger to third persons for driver's negligence 1216 
 
 Remedies of the passenger 1217 
 
 Collusive suit 1218 
 
 Rights of passengers to safe ways 304 
 
 Assembled car with defective parts 608 
 
 Liability of manufacturer to passengers for selling defective car . . 607 
 
 Rights of passenger injured in collision 1044 
 
 Duty of operator to guest 1219 
 
 No presumption of control against passenger as such 1225 
 
 Suggestion by passenger of route, etc 1221 
 
 Burden of proof 1222 
 
 Functions of the court and of the jury 1223 
 
 Fright and terror 1225 
 
 Criminal liability of passenger 1226 
 
 Misdemeanors 1227 
 
 Liability of passengers for penalty for over-speeding 444 
 
 Reckless driving as applied to passengers 1224 
 
 Rule of joint criminal responsibility as applied to passengers 1509 
 
 Testimony of passengers - I70i 
 
 123 1 
 
INDEX 
 
 [References are to Sections.] 
 Liability of street railway company to its own passengers for col- 
 lision with automobile 1416 
 
 See Guest. With common carriers. See Carriers 
 
 Care oe Passenger 
 
 Due care to be exercised by passenger 1199 
 
 Illustrations of what amounts to due care generally, on the part of 
 
 the passengers 1200 
 
 Motor vehicle cases 1201 
 
 On handlebars of motorcycle 242 
 
 Duty of motor vehicle passenger at railroad crossings 1202, 1390-1392 
 
 What amounts to due care at railroad crossings on the part of pas- 
 senger 1203 
 
 Motor vehicle cases 1204 
 
 Knowledge that driver careless 1205 
 
 Duty to leave machine in danger , 1398 
 
 Passenger remaining in car when driver intoxicated 1206 
 
 Remaining in carriage when horse frightened 1159 
 
 Passenger on rear seat .- 1207 
 
 Failure to jump 1208 
 
 Passenger remaining in unlighted car 1209 
 
 Duties of passenger in general 1210 
 
 Care on highways by passengers 1211 
 
 Passenger suggesting caution 1212 
 
 Passenger failing to protest at excessive speed 1213 
 
 Passenger urging high speed 1214 
 
 Passenger standing on running board or bumper of street car 1459 
 
 Imputed Negligence 
 
 Scope of chapter 1194 
 
 Doctrine of identification 1 195 
 
 Driver's negligence no longer imputable to passenger 1196 
 
 The modern doctrine generally 1197 
 
 The rule does not apply in cases of master and servant, etc 1198 
 
 When negligence imputed to 1019-1035 
 
 PASSING 
 
 Speed on passing 441 
 
 See Law oe the Road 
 
 PAVING 
 
 Paved street includes planked street 268 
 
 PEACE OFFICERS 
 
 Concerning "peace ofScers" generally 505 
 
 PEDESTRIANS 
 Duties of Both Parties in General 
 
 Pedestrians have equal rights with autoists 1257 
 
 1232 
 
INDEX 
 
 [References are to Sections.] 
 
 Degree of care imposed on autoists 1258 
 
 Forcing pedestrians to give way 1259 
 
 Presumption of negligence in driver of vehicle 1260 
 
 Duty to discover and avoid pedestrians 1261 
 
 Duty of driver in rear seat to keep lookout 1262 
 
 Driving in zigzag course looking behind 1263 
 
 Seesaw motions 1264 
 
 Driving through crowd 126s 
 
 No right to assume pedestrian will keep his course 1266 
 
 Excessive speed as ground for recovery 1267 
 
 Automobiles racing 1268 
 
 The duty of the motorist as prescribed by statute 1269 
 
 Rule as to overtaking does not apply to pedestrians 363 
 
 Rights of pedestrian injured as result of collision 1045 
 
 Duty ot Pedestrians in Generai, 
 
 Duty of watchfulness 1270 
 
 Contributory negligence only in exceptional case 1271 
 
 Knowledge of approach of car imposes duty of care 1272 
 
 Must know of approach of automobile in time to avoid accident .... 1273 
 
 Right to assume automobilists will be careful 1274 
 
 Right to assume law of the road will be observed 1275 
 
 Not enough that pedestrian thought she could cross safely 1276 
 
 Deaf 1371 
 
 Failure to run 1277 
 
 Running in front of auto 1097 
 
 Pedestrian jumping in front of car swinging round corner 1278 
 
 Jumping on automobile 449 
 
 When motor vehicle is driven in zigzag course 1279 
 
 Failure to see unlighted automobile 1280 
 
 Pedestrians Duty to Look and Listen 
 
 Failure to look and listen is not necessarily negligence 1281 
 
 . Rules of railroad crossings do not prevail 1282 
 
 When street unsafe for pedestrians 1283 
 
 Looking in direction from which vehicles bound to come 1284 
 
 Looking on alighting from another vehicle 1285 
 
 Pedestrian need not continuously look 1286 
 
 Looking and seeing automobile and not taking second look 1287 
 
 Failure to take second look when pedestrian has right of way 1288 
 
 Pedestrian watching one automobile hit by another 1289 
 
 Pedestrian looking and believing he has time to cross 1290 
 
 Pedestrian looking and seeing nothing 1291 
 
 Where pedestrian could have seen automobile 1292 
 
 Crossing street in a diagonal course 1293 
 
 At regular crossing '^94 
 
 1233 
 78 
 
INDEX 
 
 [References are to Sections.] 
 
 When not at regular crossing 1295 
 
 Walking while looking behind 1296 
 
 No duty to look behind while walking in street 1297 
 
 When defendant had last clear chance to avoid accident 1298 
 
 Child running into danger 1349 
 
 Child running without looking 13SI 
 
 Child looking and not seeing 1352 
 
 Boy chased out of building 1356 
 
 Questions for jury 1299 
 
 Relying on each other 1300 
 
 Position op Pbbestrian 
 
 Crossing street not at regular crossing 1301 
 
 Traveler in dangerous position — Last clear chance • 1302 
 
 Stepping from footpath to roadway 1303 
 
 Walking along street I304 
 
 Pedestrian on right hand side of road 130S 
 
 Pedestrian in centre of street 1306 
 
 Jumping in front of automobile 1307 
 
 Running in front of automobile 1308 
 
 Stepping back 1309 
 
 Pedestrian dodging back and forth 1310 
 
 Where pedestrian lying on street 1311. 
 
 On sidewalk crossing passageway 1312 
 
 Climbing or hanging on behind — "hitching on" 1313 
 
 Plaintiff leaning against team 1314 
 
 Sitting on fence beside road 131S 
 
 PlaintiflF leaving vehicle 1316 
 
 Automobilist standing between auto and track 1417 
 
 Backing out of garage ruiming over street laborer 1192 
 
 Appeaking prom Behind Another Vehicle 
 
 Pedestrian's view cut oil by another vehicle 1336 
 
 When two vehicles passing i337 
 
 Pedestrian appearing from behind street car 1338 
 
 Pedestrian crossing in front of team 1339 
 
 Pedestrian crossing behind team 1340 
 
 Alighting from team I34i 
 
 Child running from behind another vehicle 1350 
 
 Boarding or Alighting from Street Car 
 
 Duty to look on boarding street car 1317 
 
 Duty to look on alighting from street car 1318 
 
 Alighting and crossing diagonally to curb 1319 
 
 Jumping from moving street car 1320 
 
 Plaintiflf looking and not seeing automobile on alighting 1321 
 
 Duty on alighting from street car to avoid vehicle on wrong side 
 
 1234 
 
INDEX 
 
 [References are to Sections.] 
 
 of track 1322 
 
 Crossing behind street car 1323 
 
 Passenger turning back after leaving street car 1324 
 
 When law forbids automobiles to pass close to standing street cars . . 1325 
 
 When automobile swerves suddenly 1326 
 
 Standing waiting for street car 1327 
 
 When pedestrians move to avoid street car 1328 
 
 Duty to anticipate and avoid passengers 1328A 
 
 Passing street cars on wrong side 1328B 
 
 Pedestrian Evidently Unaware oe Automobile 
 
 In general 1329 
 
 Pedestrian driving animals 1330 
 
 Standing in road conversing 1331 
 
 Pedestrian examining object in his hand 1332 
 
 Pedestrian with lantern looking for lost object 1333 
 
 Child playing in street 1353 
 
 Pedestrian holding umbrella 1334 
 
 Pedestrian with shawl over her head 133S 
 
 PENALTIES 
 
 Penalties and forfeitures 490 
 
 Fines, penalties and forfeitures in misdemeanor 488 
 
 Penal statute described 131 
 
 Construction of penal statutes 132 
 
 Concurring 442, 445 
 
 Offenses that may be punished twice 487 
 
 PENSION 
 
 Affecting damages ^758 
 
 PHOTOGRAPHS 
 
 As evidence ^"°' 
 
 PHYSICIANS 
 
 Privilege of physicians ^7io 
 
 PLATES 
 
 See Number Plates 
 
 PLEADINGS 
 
 In general ^'" 
 
 General averment of negligence ISS2 
 
 General averment of wilfulness ^553 
 
 Bill of particulars ••■• JSS4 
 
 Ordinances or special rules ^6 
 
 Contributory negligence 55 
 
 Variance j.^g 
 
 Speed as negligence 
 
 1235 
 
INDEX 
 
 [References are to Sections.] 
 
 Negligent steering as well as speed ISS9 
 
 Allegation of defendant's duty iS6o 
 
 Absence of warning 1561 
 
 Agency 1562 
 
 Proximate cause 1563 
 
 Runaway as proximate result 1141 
 
 Stating that defendant ran into plaintiff 1564 
 
 Personal injuries 1565 
 
 Punitive damages must be pleaded 1765 
 
 Allegation that automobile was on the public highway 1566 
 
 Parties , , 1567 
 
 Last clear chance 1568 
 
 Plea of not guilty 1569 
 
 Pleading in action for death 1538 
 
 In actions growing out of sales 624 
 
 Charge must not cover matters not in pleadings 1587 
 
 Criminal. See Criminai, Pleading and Practicb 
 
 POCKETING 
 
 Turning suddenly from centre of street 388 
 
 POLICE 
 
 Concerning police officers S04 
 
 Rights of police vehicles 343 
 
 Police officer, run over 1344 
 
 Street car stopping suddenly on signal by traffic officer 1443 
 
 Proceeding on signal by 1178 
 
 POLICE POWER 
 
 See CoNSTiTUTioNAi, Considerations 
 
 POLITICAL COMMITTEE 
 
 Liability of 868 
 
 PRACTICE 
 
 Venue where accident happened, validity , Si 
 
 Parties 1S67 
 
 Minor must appear by guardian 1365 
 
 Uniting action for purchase-price with action for conversion 1581 
 
 Interpleader to determine title . .' 589 
 
 Proceedings to restrain a nuisance 593 
 
 Remedies of vendor 656 
 
 Remedies of vendor against the goods— Hen 637 
 
 Action for purchase price 659 
 
 Right of action or rescission 669 
 
 Remedies of buyer on breach of warranty 771 
 
 Dismissing the complaint 970 
 
 Harmless error 1571 
 
 1236 
 
INDEX 
 
 [References are to Sections.] 
 
 Points as to evidence must be taken at once , 1574 
 
 Waiver of objection to evidence 1620 
 
 Points must be raised in lower court 1575 
 
 Failure to produce witnesses 1572 
 
 General conduct of the trial 1570 
 
 Trial of actions for death 1542 
 
 Forcing jury to agree 1573 
 
 Misconduct of jurors 1577 
 
 Physical txamination of plaintiff I57g 
 
 Cross-examination jc^q 
 
 Argument !!!!!!!!!!"!!!!!!!! isso 
 
 Prejudice of jurors 1532 
 
 Verdicts 1779-1783 
 
 Power of appellate court to reverse 1576 
 
 Criminal. See Criminal Pleading and Practice 
 
 Province of Court and Jury 576 
 
 Duty of the court 969 
 
 Child's negligence a question for jury 1364 
 
 Action in emergency is question for jury 1105 
 
 Question of sufBciency of highway is for jury 298 
 
 Capacity to testify is a question for the court 1706 
 
 Province of court as to non-expert opinion evidence 1704 
 
 Expert's qualifications decided by lower court 1689 
 
 Functions of jury as to construction of contract and passing of title 626 
 
 Questions of reckless driving are for jury 4S9 
 
 In determining agency 836 
 
 In actions of servant against master 929 
 
 In negligence of garage-keepers 547 
 
 As to negligence 968 
 
 As to gross negligence 1S21 
 
 In actions by passenger 1223 
 
 In case of pedestrians 1299 
 
 As to proximate cause 1060 
 
 As to primitive damages 1764 
 
 As to representations 766 
 
 Instructions to Jury 
 
 Charge not clear 'S83 
 
 Refusal of immaterial request 1S84 
 
 Right of party to instruction as to law IS8S 
 
 Right to instruction as to contributory negligence pleaded IS86 
 
 Charge must not cover matters not in pleadings 1587 
 
 Defining unlawful speed 'S88 
 
 Instructions as to damages 1726 
 
 Charge must be confined to evidence 1S89 
 
 1237 
 
INDEX 
 
 [References are to Sections.] 
 
 Need not charge in absence of evidence iSpo 
 
 Assuming disputed questions iSQi 
 
 Disputed facts must be left to jury 1592 
 
 Specific acts of negligence claimed to be submitted to jury 1593 
 
 Financial condition of parties 1594 
 
 PRESUMPTION 
 
 Of negligence from collision in passing 373 
 
 Against repeal of statutes 136 
 
 Right to assume that other vehicles will keep to right 356 
 
 See EviDBNCs 
 
 PRIMA FACIE 
 
 "Prima facie evidence" 1646 
 
 A "prima facie case" 1647 
 
 Prima facie case and proximate cause 1648 
 
 PRINCIPAL AND AGENT 
 See Agbncy 
 
 PRIORITIES 
 
 Of liens 939 
 
 As between liens and mortgages S86 
 
 PROCESSION 
 
 Traveling in procession ■ , 3So 
 
 PROXIMATE CAUSE 
 
 Proximate cause of accident where road defective 300 
 
 See Negligence 
 
 PUBLIC OFFICERS 
 
 Power of public officers to purchase or hire automobiles 188 
 
 PUBLIC SAFETY 
 
 Defined 457 
 
 PUNITIVE DAMAGES 
 See Damages 
 
 PURCHASER 
 
 Letting customer crank car 856 
 
 Liability of seller for acts of purchaser where car delivered but 
 
 not paid for 86i 
 
 See Sales 
 
 RACING 
 
 Racing prohibited 1524 
 
 Joint liability 1525 
 
 Rights of municipalities to allow 1526 
 
 Liabilitiy of state for accidents 1527 
 
 1238 
 
INDEX 
 
 [References are to Sections.] 
 
 Spectators 1528 
 
 Rights of traveller 1529 
 
 Liability of manufacturer 1530 
 
 Defendants racing injuring pedestrian 1046 
 
 Automobiles racing 1268 
 
 Mechanician on racing car 928 
 
 RAILINGS 
 
 Railings and barriers on highways 296 
 
 RAILROAD CROSSINGS 
 
 Care at railroad crossings 1377 
 
 Duty of motor vehicle passenger at railroad crossings 1202 
 
 What amounts to due care at railroad crossings on the part of 
 
 passenger 1203, 1204 
 
 Equal rights 1378 
 
 Presumption of negligence against railroad company 1379 
 
 Rules of railroad crossings do not apply to pedestrians 1282 
 
 Managbment of Grade Crossings 
 
 Absence of guards 1380 
 
 Leaving view obstructed at crossing 1381 
 
 Cars standing near crossing 1382 
 
 Grade crossing in country 1383 
 
 Lowering gates 1384 
 
 Acts of flagman 138S 
 
 Failure of crossing bell to ring 1386 
 
 Wheel of automobile catching in planking 1387 
 
 Management of Motor Vehicles 
 
 Duty of driver to look 1388 
 
 Automobile as distinguished from other vehicles 1389 
 
 Duty to look and listen when flagman at crossing 139° 
 
 Passenger need not look i39i 
 
 Alighting from the vehicle to go and look 1392 
 
 Duty to stop 1393 
 
 The Pennsylvania rule ^394 
 
 Skidding across track "395 
 
 Auto stalled on track "396 
 
 Speed of motor vehicle "397 
 
 Duty to leave machine in danger 1398 
 
 Not using public crossing "399 
 
 Where another crossing is available i400 
 
 Crossing ahead of train where view unobstructed 1401 
 
 Where automobile brakes do not work 1402 
 
 Automobile running into train at night 1403 
 
 1239 
 
INDEX 
 
 [References are to Sections.] 
 Managembnt of Train 
 
 Speed of train 1404 
 
 Duty of engineer to see head lights 1405 
 
 Blowing whistle and ringing bell 1406 
 
 SiGNAI,S 
 
 Blowing whistle and ringing bell 1406 
 
 Evidence of signals 1407 
 
 Train backing , 1408 
 
 Switching — flying switch 1409 
 
 Headlight of train not lighted 1410 
 
 Railroad rules as evidence 1411 
 
 RAIN 
 
 Pedestrian holding umbrella 1334 
 
 Skidding in wet car tracks 237 
 
 Windshield blurred by 422 
 
 See Skidding 
 
 RATIFICATION 
 
 Ratification — what amounts to a ratification 6go 
 
 Of acts of agents 71S, 812 
 
 Of purchase 690 
 
 RECKLESS OPERATION 
 
 Scope of chapter 447 
 
 The statute ; . . . 448 
 
 Statute inapplicable to one jumping on car 449 
 
 Certain general propositions , 450 
 
 "Dangerous" defined 451 
 
 "Reckless" defined 452 
 
 Recklessness distinguished from negligence 453 
 
 In its wider scope 454 
 
 Where driving according to the law 4SS 
 
 Care after seeing danger insufficient 456 
 
 Public safety 4S7 
 
 Joint liability 458 
 
 Questions for jury 459 
 
 RECORDING 
 
 Of mortgage 938 
 
 RECORDS 
 
 Existence of public report of breach of speed laws 1663 
 
 See Evidence, Documentary 
 
 RECOUPMENT 
 
 For fraud 672 
 
 1240 
 
INDBX 
 
 [References are to Sections.] 
 REGISTRATION 
 
 Validity of law requiring 47 
 
 Must be uniform C2 
 
 Registration of non-resident owners valid 195 
 
 Purpose of gjj 
 
 Fee not a tax 8g_ gp 
 
 License tax for use on roads 98 
 
 Possession and registration 832 
 
 Under trade or business name 87 
 
 In proper name 86 
 
 By dealers 85 
 
 License of the machine 83 
 
 Proof of 1662 
 
 Registration as evidence of ownership 210 
 
 Evidence of registration as bearing on agency 831 
 
 Effect of statutes requiring registration, etc 811 
 
 Unregistered vehicle on the highway 1086 
 
 The Massachusetts rule as to unregistered vehicles 1087 
 
 Sjmopsis of laws as to, see Appendix E. See LicBnsbs, Taxation 
 
 REGULATION 
 
 Defined 182 
 
 May include penalty 137 
 
 RELEASE 
 
 Effect of release of one of two joint tort feasors 1050 
 
 RENTING 
 
 Condition against renting 785 
 
 See Garages 
 
 REPAIRS 
 
 Chauffeur's authority to order repairs 261 
 
 See Garages. Lien for, see Garages 
 
 REPEAL 
 
 Presumption against implied repeal of statutes 136 
 
 REPLEVIN 
 
 Considered I7S0 
 
 Ownership in relation to replevin I7SI 
 
 RESCISSION 
 
 In Genekai, 
 
 Right of action or rescission °°9 
 
 Rescission of contract 773 
 
 Minor's right to • • ■ • ■ ; °74 
 
 No rescission as against innocent purchasers for value 091 
 
 1241 
 
INDEX 
 
 [References are to Sections.] 
 
 Buyer's election 671 
 
 Recovery of purchase price 678 
 
 Commissions not deducted from damages 681 
 
 Evidence of return of car 677 
 
 Returning in damaged condition 679 
 
 Right to rescind purchase of accessories 676 
 
 Duty to inspect promptly 684 
 
 Time allowed for inspection and testing 685 
 
 Reason For 
 
 Evidence to warrant rescission 670 
 
 For fraud 645 et seq. 770 
 
 Fraud not essential 680 
 
 Defects latent or patent 646 
 
 Mistake 644 
 
 Misstatements of age of car 673 
 
 Car worthless for special purpose 67s 
 
 Waiver Oj 
 
 Laches by buyer 682 
 
 Allowing seller to work on car is not a waiver of right to rescind . . 689 
 
 User while trying to put car in condition 688 
 
 Subsequently discovered imperfections 686 
 
 Rescission waived by user 687 
 
 Waiver of right to rescind by authorizing sale 683 
 
 RESCUERS 
 
 Rescuers — Attempt to save life 1104 
 
 Not barred by negligence 1007 
 
 RESPONDEAT SUPERIOR 
 
 Considered 799 
 
 Rule of , ^3 
 
 See further Agency 
 
 RESTRICTIONS 
 
 Restrictions on use of land as affecting garages 594 
 
 RETAKING 
 
 Retaking Jay force after loss of lien 585 
 
 REVENUE 
 
 Defined S6 
 
 Power of legislature to pass revenue laws 62 
 
 See Taxation / ,, .,^ , , ^ ,, /j 
 
 REVOCATION ' 
 
 Of licenses, see Licenses. 
 
 RIGHT OF WAY 
 
 See Law of the Road 
 
 1242 
 
INDEX 
 
 [References are to Sections.] 
 ROAD 
 
 See Law op the Road 
 ROPE 
 
 Rope across street as defect 293 
 
 RUT 
 
 Rut as defect 291 
 
 SALES 
 
 Scope of chapter 6ii 
 
 Definition of "sale" 612 
 
 Elements of a sale 613 
 
 Concurrence of assent 614 
 
 Executed and executory sales 615 
 
 Vendor must have title 616 
 
 Who is the vendor when sale made through agent 617 
 
 Commission of agent 733 et seq. 
 
 Effect of partial payment on title 618 
 
 Title in case of conditional bill of sale 619 
 
 Illegal use contemplated 620 
 
 Unfair competition 621 
 
 Statute of frauds 622 
 
 "Demonstration" — meaning of, and how proved 623 
 
 Pleading 624 
 
 Parol evidence in connection with a written contract 625 
 
 Functions of jury as to construction of contract and passing of title 626 
 
 Intervention of equity 627 
 
 Specific performance , , 6z8 
 
 Readiness to perform a condition precedent to enforcement 629 
 
 Consideration 630 
 
 Failure of consideration , 631 
 
 Failure of consideration resulting from misrepresentation 632 
 
 Delivery 633 
 
 Delivery in executory contract of sale of specific chattels 634 
 
 When article is to be manufactured 635 
 
 Executory sale of articles to be specified at a future time 636 
 
 "Sale on trial" or "sale on approval" and "sales or return" 637 
 
 Sales by "sample" 757 
 
 Misuse or injury to property while on trial 638 
 
 Acceptance 639 
 
 Right of inspection before acceptance 640 
 
 Inspection by purchaser 758 
 
 Duty to inspect promptly 684 
 
 Time allowed for inspection and testing 685 
 
 Caveat emptor 641 
 
 Fraud sets aside rule of caveat emptor 642 
 
 1243 
 
IND^X 
 
 [References are to Sections.] 
 
 Rule of caveat emptor in sales by manufacturers 769 
 
 Mistake 643 
 
 Rescinding contract on the ground of mistake 644 
 
 Fraud and deceit 645 
 
 "Dealer's talk" or "seller's talk" 729 
 
 Defects patent or latent 646 
 
 Fraud not resulting in pecuniary loss 647 
 
 Falsely pretending to be a prospective customer 648 
 
 Sale through middleman 649 
 
 Acquiescence in fraud 650 
 
 Waiver of defects by the buyer 651, 758 
 
 Waiver of contract 699 
 
 Knowledge of defects based on failure of other cars 652 
 
 Selling agreements. See Seizing Agents and Agencies. See Warranties 
 
 Rights and Remedies of Vendor 
 . Where possession has passed 
 
 Breach by the buyer 651 
 
 Time of breach 654 
 
 Defaulting buyer forfeits advances 655 
 
 Remedies 656 
 
 Remedies against the goods — lien 657 
 
 The right of stoppage in transitu 658 
 
 Where possession has passed. 
 
 Personal action 659 
 
 Conditional sale — buyer in default 660 
 
 Rights and Remedies of Buyer 
 
 In General 661 
 
 Before obtaining possession of the goods 
 
 Damages 662 
 
 Market price , 663 
 
 Duty of buyer where seller fails to deliver 664 
 
 General American rule as to damages 665 
 
 Nominal damages 666 
 
 Conversion 667 
 
 Demand and tender as condition precedent 668 
 
 After otitaimng possession 
 
 Right of action or rescission 669 
 
 Evidence to warrant rescission 670 
 
 Buyer's election to rescind or claim damages for fraud 671 
 
 Fraud as recoupment 672 
 
 Rejection and rescission — misstatements of age of car 673 
 
 Minor's right to rescind 674 
 
 Car worthless for special purpose 675 
 
 Right to rescind purchase of accessories 676 
 
 1244 
 
INDEX 
 
 [References are to Sections.] 
 
 Evidence of return of car g 
 
 Recovery of purchase price ... ^^ Zl 
 
 Returning in damaged condition 1 
 
 Fraud not essential go 
 
 Commissions not deducted from damages 68i 
 
 Laches by buyer ' ' go 
 
 Waiver of right to rescind by authorizing sale ] ." . . ' 683 
 
 Subsequently discovered imperfections !!!!!! 686 
 
 Rescission waived by user go- 
 User virhile trying to put car in condition 688 
 
 Allowing seller to work on car is not a waiver of right to rescind 689 
 
 Ratification— what amounts to a ratification ggo 
 
 No rescission as against innocent purchasers for value 691 
 
 Measure of damages in cases of sales with warranty of article 1753 
 
 Loss of future profits as damages 175 . 
 
 SALESMAN 
 
 Defined 704 
 
 SAMPLE 
 
 Sales by -»- 
 
 SEAT 
 
 Driving in low seat 241 
 
 Sitting on floor of car 1008B 
 
 SEESAW MOVEMENTS 
 
 Considered 361 
 
 Of bicyclist 1182 
 
 When motor vehicle is driven in zigzag course 1279 
 
 In emergency 1099 
 
 On meeting pedestrian 1264 
 
 Pedestrian dodging back and forth 1310 
 
 SELF DEFENCE 
 
 Considered 1497 
 
 SELF INCRIMINATION 
 
 Display of number plates does not testify against one's self 48 
 
 SELLING AGENTS AND AGENCIES 
 
 Scope of chapter 692 
 
 Rule of respondeat superior 693 
 
 Contract void for lack of mutuality 694 
 
 Contract construed a bailment 69S 
 
 Not a conditional sale 696 
 
 Contract for automobiles includes taxicabs 697 
 
 Modification of contract 698 
 
 Waiver of contracts 699 
 
 124s 
 
INDEX 
 
 [References are to Sections.] 
 
 In what state business done 700 
 
 "Agent" defined 701 
 
 Distinction between an agent and a servant 702 
 
 "Broker" defined 703 
 
 "Salesman" defined 704 
 
 Agency described 70S 
 
 Personality of the agent is a factor 706 
 
 Automobile agency defined ^<yJ 
 
 The relation between the parties 708 
 
 Agreement to give all time to agency 709 
 
 "General agents" and "special agents" 710 
 
 Right to deposit 711 
 
 Appointment 712 
 
 Private instructions 713 
 
 Scope of agent's authority 714 
 
 Ratification or confirmation 715 
 
 Agency, how proven -. 716 
 
 Duty of agent 717 
 
 Degree of care of agent 718 
 
 Negligence of agents 719 
 
 Usage 720 
 
 Responsibility of principal for misconduct of his agent 721 
 
 Testing car for customer 857 
 
 Where salesman lets another drive the owner's car 858 
 
 Driving car home for purchaser 860 
 
 Liability for acts of demonstrator 863 
 
 Collusive contract 722 
 
 Responsibility of agent 723 
 
 Liability of agent in case of torts 724 
 
 Power of agents to warrant 725 
 
 Circulars of manufacturers as authority to agent to warrant 726 
 
 Admissions of general agents 727 
 
 Agent's statements 728 
 
 "Dealer's talk" or "seller's talk" 729 
 
 Agent's power to delegate authority 730 
 
 Payment to an agent ,. . 731 
 
 Notice to an agent 732 
 
 Compensation of an agent 733 
 
 Right to commissions as between general and special agent where 
 
 cars not delivered 734 
 
 When commission earned 735 
 
 Exclusive territory 736 
 
 Validity of agreement for exclusive territory 737 
 
 Revocation of authority 738 
 
 Partnership of agent 739 
 
 1246 
 
INDSX 
 
 [References are to Sections.! 
 SERVANT ' 
 
 Defined 
 
 SeeAGBNCY ^'^•^^ 
 
 SIDEWALK 
 
 Pedestrian on sidewalk crossing passageway 1312 
 
 Backing across j 
 
 SIGHT-SEEING AUTOMOBILE 
 
 Considered ^^^^ 
 
 SIGNALS 
 In Generai, 
 
 Evidence of signals j^o^ 
 
 Evidence as to sounding horn 1170 
 
 Pleading absence of warning 156X 
 
 By Driver of Automobile 
 
 Insufficient 341 
 
 Duty to sound horn 1162 
 
 Failure to sound horn 1163 
 
 When failure to sound horn is not negligence 1164 
 
 Blowing horn does not give right of way 1165 
 
 Passing standing team 1166 
 
 On approaching horses 1124, 1125 
 
 "Hollering" to driver of team which does not turn out 1129 
 
 Statute requiring signal on approaching horses is for protection 
 
 of persons driving them 1167 
 
 When another does not hear horn 1168 
 
 Signal that about to start automobile 1169 
 
 Failure to heed signal to stop 117S 
 
 Stopping on signal insufficient 1176 
 
 On approaching pedestrian 1269 
 
 Duty of car overtaking to signal 366 
 
 Signal by leading car 367 
 
 Signal before turning 390 
 
 Signal where intersecting street closed 391 
 
 By Driver oe Horse 
 
 What is sufficient signal 1171 
 
 What amounts to driving 1172 
 
 Signal by one not the driver i'i73 
 
 Duty irrespective of signal ii74 
 
 Failure to heed signal to stop "75 
 
 Stopping on signal insufficient "76 
 
 Negligent failure to signal ^^77 
 
 1247 
 
[References are to Sections.] 
 By Traffic Officer 
 
 Proceeding on signal by traffic officer 1178 
 
 Street car stopping on signal by traffic officer 1443 
 
 By Railroads and Street Railways 
 
 Sounding the street car gong 1450 
 
 Autoist relying on statutory signal from street car 1451 
 
 Failure of defendant's servants not operating car to give warning 1452 
 
 Failure of crossing bell to ring 1386 
 
 Not using public crossing 1399 
 
 SIGNS 
 
 Regulation of by city 187 
 
 SKIDDING 
 
 Considered 235 
 
 Failure to steer when skidding 236 
 
 Skidding on wet car tracks 237 
 
 Automobile skidding on track 1428 
 
 Skidding across track 1395 
 
 Skidding not a derailment 787 
 
 Bicyclist slipping 1183 
 
 SLEEP 
 
 Driving while asleep iiSS 
 
 SMOKE 
 
 Smoke laws 239 
 
 Smoke frightening horses II3S 
 
 SNOW 
 
 When leading vehicle does not turn aside in 376 
 
 Collision with street car when vision obstructed by snow 1447 
 
 SPECIAL LEGISLATION 
 
 As class legislation 42, 43 
 
 Class legislation regarding motor vehicles .,. 45 
 
 SPECIFIC PERFORMANCE 
 
 Of sale 628 
 
 SPECTATORS 
 
 Crowd of Children 1354 
 
 Driving through crowd 1265 
 
 Spectators and crowds I344A 
 
 Spectators at road races 1528 
 
 SPEED 
 In Generai, 
 
 On highway 341 
 
 Speed at crossing 385, 1397 
 
 1248 
 
INDEX 
 
 [References are to Sections.] 
 
 Speed where view obstructed 386 
 
 Speed of automobile before accident 1676 
 
 Speed after accident 1677 
 
 When one may speed up to avoid accident 401 
 
 Pleading speed as negligence 1558, 1559 
 
 Street car speed 1446 
 
 Where autoist had time to cross if street car running at reasonable 
 
 speed 1438 
 
 Speed of train 1404 
 
 Ii,i,SGAi, OR Excessive 
 
 What is high speed 988 
 
 Speed as negligence 987 
 
 Illegal speed prima facie proof of negligence 54, 1079 
 
 Illegal as cause of accident 1069 
 
 Illegal causing death 1478 
 
 As nuisance 1489 
 
 Excessive speed as ground for recovery by pedestrian 1267 
 
 Keeping within maximum statutory speed may be insufficient 1140 
 
 Passenger criminally liable 1226, 1227 
 
 Defining unlawful speed in charge to jury 1588 
 
 Speed as cause of fright 1138 
 
 When unlawful speed did not frighten horses ii39 
 
 Reckless operation 
 
 EviDBNCE Op 
 
 Expert evidence of speed io°S 
 
 Opinions of non-experts as to 1699 
 
 Non-expert witnesses cannot characterize the speed 1693 
 
 Plaintiff may give opinion of 1694 
 
 Opinion of speed based on comparison 1696 
 
 Sound or "noise" as indicating speed 1637 
 
 Opinion based on speed of exhaust 1697 
 
 Time in estimating speed ^^3^ 
 
 Distance as basis of speed estimate 1639 
 
 Speed claimed impossible 1^81 
 
 Judicial notice of possible speed io53 
 
 Speed Limitations 
 
 In general 
 
 Validity under police power S3 
 
 Power of municipalities to regulate speed 108 
 
 Municipal regulation of in Massachusetts loS 
 
 Soeed at common law and under the statute 424 
 
 . 1 424A 
 
 Motive or mtent ^j* e 
 
 Safety of the public the test 4^5 
 
 Must prove that on public road 42o 
 
 1249 
 
 79 
 
INDBX 
 
 [References are to Sections.] 
 
 Need not prove individuals endangered 427 
 
 Must be reasonable speed 428 
 
 Speed mania 429 
 
 Speed "reasonable and proper" too vague 430 
 
 Other vague limitations 431 
 
 Purpose of specific speed limitations 432 
 
 Distance covered at prohibited speed 433 
 
 Average speed limit ; 434 
 
 Specified limitations subordinate to rule of reasonable rate 435 
 
 Speed may be unreasonable though within maximum limit 436 
 
 Defence of not exceeding speed limitations 437 
 
 Meaning of the expression, "business part" of a city or a town 438 
 
 Operation where view is obstructed 439 
 
 Operation at intersecting ways 440 
 
 Speed on passing 441 
 
 Concurring penalties , 442 
 
 Liability of owner to penalty for over speeding 443 
 
 Liability of passenger for over speeding 444 
 
 Remedies 445 
 
 All are principals in misdemeanor 446 
 
 Synopsis of statutes regulating, see Appendix E 
 
 SPEEDOMETER 
 
 As evidence , 1644 
 
 splashiiJg 
 
 Splashing horse 1133 
 
 STAGE COACH 
 
 Includes automobile 8 
 
 STALLING 
 
 Auto stalled on track 1396, 1427, 1444 
 
 STANDING 
 
 Right to stand on highway 279 
 
 Standing vehicle , 404 
 
 Standing carriages and cabs 405 
 
 Leaving vehicle unattended 406 
 
 Leaving incompetent person in charge 407 
 
 Leaving car standing unlighted 908 
 
 Duty of owner in case of break-down 284 
 
 Abandoned automobile 290 
 
 Automobile standing too near car track 1417,1418 
 
 Signal on passing standing team 1166 
 
 Duty to stop before passing standing street car 1419 
 
 1250 
 
INDBX 
 
 [References are to Sections.] 
 STARTING 
 
 Sudden starting of car steered by another 1067 
 
 See Backfiring, Cranking 
 
 STATE 
 
 Liability of state for accidents in racing 1527 
 
 STATUTES 
 In Generai, 
 
 Violation of statute and ordinance distinguished 1075 
 
 Statute of frauds 522 
 
 Presumption against implied repeal 136 
 
 Synopsis of motor vehicle laws, see Appendix E 
 Vawdity 
 
 Title of the act 137 
 
 Acts relating to more than one subject 138 
 
 Speed "reasonable and proper" too vague 430 
 
 Other vague limitations 431 
 
 Purpose of specific speed limitations 432 
 
 Validity of statute imputing negligence of driver to certain occupants 1025 
 
 Construction 
 
 Object of interpretation . . , 126 
 
 Strict construction 127 
 
 Implied effect 128 
 
 Language of the act to be unambiguous " 129 
 
 Construction of "police" regulations 130 
 
 Penal statute described 131 
 
 Construction of penal statutes 132 
 
 Construction of remedial statutes 133 
 
 Construction of revenue and tax laws 134 
 
 Construction in view of other legislation 135 
 
 Intent of law as to operation under influence of liquor 471 
 
 Subjects Covered 
 
 Defining motor vehicles 11 
 
 As to joy riding 899 
 
 Garage keeper's lien by statute 582 
 
 Giving lien on vehicle 94iA 
 
 Imposing liability on owner 837 
 
 Application to master of statutes imposing duty of care 838 
 
 As to reckless operation 447 et seq. 
 
 As to smoke 239 
 
 As to equtpment of vehicles 222 
 
 Effect of statute relating to unauthorized use SS6 
 
 Workmen's compensation law 923 
 
 See further, various titles for statutes covering subjects of those titles 
 
 125 1 
 
INDEX 
 
 [References are to Sections.] 
 STEAM 
 
 Escaping steam frightening horses 1 134 
 
 STEERING 
 
 Pleading negligent steering as well as speed I559 
 
 STEERING GEAR 
 
 Required 229 
 
 Liability when steering gear breaks 226 
 
 STONES 
 
 Large stones in road as defect 292 
 
 STOP 
 
 Duty to stop before crossing tracks 1439 
 
 Duty to stop at corners 400 
 
 At grade crossing 1393, 1394 
 
 STOPPAGE IN TRANSITU 
 The right of stoppage in transitu , 658 
 
 STOP-WATCH 
 
 Stop-watch or mechanical device 1643 
 
 STORAGE 
 
 Chauffeur placing car in storage 262 
 
 See Garages 
 
 STREET RAILWAYS 
 In General 
 
 Mutual rights of street cars and vehicles 1412 
 
 Motorman's presumptions 1413 
 
 Right to assume motorman will be careful 1414 
 
 Rules of company as evidence 1415 
 
 Liability of street railway company to its own passengers for col- 
 lision with automobile 1416 
 
 Automobilist standing betw^een auto and track 1417 
 
 Automobile standing too near car track 1418 
 
 Duty of driver as to street railway tracks 346 
 
 Rule for overtaking as applied to street cars 364 
 
 Duty to stop before passing standing street car 1419 
 
 Negligence towards one turning out of car tracks 1426 
 
 Pulling automobile out of excavation 1420 
 
 Subway excavation 1421 
 
 Right of to restrain operation of jitneys 12SS 
 
 Pedestrians boarding or alighting from street car, see Pedestrians 
 See further Negligence 
 
 Driving on Track 
 
 In general 1422 
 
 Looking behind 1423 
 
 1253 
 
INDEX 
 
 [References are to Sections.] 
 
 Turning from one track to another 1424 
 
 Street car overtaking vehicle 1425 
 
 Negligence towards one turning out of car tracks 1426 
 
 Power of automobile failing on track 1427 
 
 Automobile skidding on track 1428 
 
 Crowding vehicle on to track 1429 
 
 Head-on collision, last clear chance 1430 
 
 Meeting at Crossings. 
 
 In general 1431 
 
 The burden of proof 1432 
 
 Care of motorists at crossing ■, 1433 
 
 Duty to look and listen 1434 
 
 Must look just before crossing 1435 
 
 Failure to look 1436 
 
 Looking and failing to see 1437 
 
 Where autoist had time to cross if car running at reasonable speed 1438 
 
 Duty to stop before crossing tracks 1439 
 
 Backing across street car tracks 1440 
 
 Driving out of garage on to street car track 1441 
 
 Crossing on invitation of motorman 1442 
 
 Street car stopping suddenly on signal by traffic officer 1443 
 
 Motor vehicle stopping suddenly on track 1444 
 
 Management os Street Car 
 
 Degree of care demanded of motorman 1445 
 
 Street car speed 1446 
 
 Speed where vision obstructed by frost I447 
 
 Car increasing speed on slippery rails , 1448 
 
 Ordinances regulating speed and stopping of street cars 1449 
 
 Sounding the gong I4SS 
 
 Autoist relying on statutory signal from street car 14SI 
 
 Failure of defendant's servants not operating car to give warning 1452 
 
 Headlights on street car 1453 
 
 Absence of conductor 1454 
 
 Motorman conversing i4SS 
 
 Street car backing I456 
 
 End of street car swinging across road i457 
 
 Street car conductors on street or running board 1458 
 
 Passenger standing on running board or bumper of street car 1459 
 
 Pedestrian boarding or alighting from street car 1317-1328B 
 
 STREETS 
 
 See Highways 
 
 STUMP 
 
 Stump outside travelled way 289 
 
 I2S3 
 
INDEX . 
 
 [References are to Sections.] 
 SUBSTITUTES 
 
 Cost of substitute car 1744 
 
 Damages for employment of a substitute 1729 
 
 SUBWAY 
 
 Excavation 1421 
 
 SUN 
 
 Blinding driver 421 
 
 SUNDAY 
 
 Contract made on Sunday 549 
 
 SUPPLIES 
 
 Chauffeur going for 874 
 
 SUSPENSION 
 
 Of license, see Licenses 
 
 SWITCH 
 
 Switching — flying switch 1409 
 
 TAX 
 In General 
 
 Scope of chapter 55 
 
 Definitions 56 
 
 Claim for return of excess fees 70 
 
 Power of legislature to fix duties of officers 100 
 
 Jurisdiction of licensing officer loi 
 
 Nature 
 
 Fee defined 57 
 
 Tax described 58 
 
 Taxes direct and indirect 59 
 
 Ad valorem and specific taxes 60 
 
 Hack line defined 61 
 
 Municipal taxation 172 
 
 Municipal power to tax 173 
 
 Customs duties 202 
 
 Customs duties under Tariff Acts of 1909 and 1913 203 
 
 Construction of revenue and tax laws , 134 
 
 Validity 
 
 Validity in general 90 
 
 Meaning of "reasonable" as applied to an excess tax 91 
 
 Double taxation 92, 1 77 
 
 Fee not void as double taxation 69 
 
 Revenue powers of the legislature 62 
 
 Under the Federal Constitution 63 
 
 Taxes must be for public purposes 64 
 
 I2S4 
 
INDEX 
 
 [References are to Sections.] 
 
 Taxes must not be arbitrary 6S 
 
 Uniformity in taxation 66 
 
 Class taxation 67 
 
 Taxing vehicles from another state 193 
 
 Taxing non-residents. Reciprocal provisions 194 
 
 CifAssiFicATioN OP Subjects of License 
 
 Uniformity T 104 
 
 Graded license fees 105 
 
 Graduated fees void as a police regulation 106 
 
 Graduated fees '. 107 
 
 License fees in excess of cost of registration 107 
 
 Fees proportioned to horse power 109 
 
 Graduation of vehicles according to number of horses 1 10 
 
 By seating capacity ill 
 
 Exempting municipal vehicles I12 
 
 Classifying trucks, etc., in one class 113 
 
 Exempting motor vehicles and taxing horse-drawn vehicles I IS 
 
 Higher rate on vehicles used for hire 116 
 
 Special rate to chauffeurs 117 
 
 Exempting traction engines 118 
 
 License ok Occupation 
 
 License fees not taxation 122 
 
 Taxation by way of license 120 
 
 Taxation and license distinguished 121 
 
 Revenue not the primary object of license 123 
 
 "High license" , 124 
 
 Occupation tax, excise and license 71 
 
 Occupation tax 72 
 
 Occupation tax defined 72 
 
 A license is not a tax ^ 
 
 Purposes of an occupation tax 73 
 
 Occupation tax for regulation 74 
 
 Occupation tax for revenue 75 
 
 Vehicular occupation tax 76 
 
 Excise defined 7° 
 
 Occupation tax in Massachusetts 77 
 
 Licenses 
 
 Licenses in general ' 
 
 A license defined °^ 
 
 License law not void as authorizing imprisonment for debt 94 
 
 New license required under new law 93 
 
 Licenses by counties 95 
 
 Apportioned by state among cities and towns 90 
 
 City license as regulation i°3 
 
 1255 
 
INDSX 
 
 [References are to Sections.] 
 
 Wheel tax 97 
 
 Municipal authority to impose license fees, the "wheel tax" cases . . 102 
 
 License tax for use on roads 98 
 
 Delegation of authority to license , 99 
 
 License tax 176 
 
 License must be personal 84 
 
 Registration is a license of machine 83 
 
 Registration by dealers 85 
 
 Registration in proper name 86 
 
 Registration under trade or business name 87 
 
 Registration fee not a tax when proceeds must be used on the roads 89 
 Synopsis of laws as to, see Appendix E. See Registration 
 
 Exemptions 
 
 Automobile exempt as carriage 4 
 
 Automobile not exempt as tool or implement of trade 6 
 
 Exemption from local taxation 108 
 
 Exempting pleasure vehicles and those of non-residents 114 
 
 Exemption of companies from taxes and license includes motor fee 68 
 
 TAXICABS 
 
 Considered 1229 
 
 Included under automobile 2 
 
 Liability for acts of taxicab drivers 825 
 
 Care required of drivers 258 
 
 Contract for automobiles includes taxicabs 697 
 
 TENDER 
 
 Of purchase price by buyer 668 
 
 TESTING 
 
 Testing car for customer 857 
 
 Testing car on road 877 
 
 THEFT 
 
 See Larceny 
 
 TIME 
 
 Failure to deliver on time 761 
 
 Time within which vehicle stopped 1666 
 
 Speedometer as evidence of 1644 
 
 TITLE V; 
 
 When article is to be manufactured 635 
 
 Executory sale of articles to be specified at a future time 636 
 
 "Sale on trial" or "sale on approval" and "sales or return" 637 
 
 Misuse or injury to property while on trial 638 
 
 TOURING 
 
 Considered 1193 
 
 Agency of one hired to remove car from ditch 850 
 
 1256 
 
INDEX 
 
 [References are to Sections.] 
 TOWNS 
 
 See MuNiciPAi, Corporations 
 
 TRACTION ENGINES 
 
 Exempting j^g 
 
 TRAFFIC I.AWS 
 
 Implied power of municipalities to control traffic 164 
 
 Traffic regulations jg. 
 
 Violation of " ,„2 
 
 Traffic L,aws, see Appendix A, C, E 
 
 TRAFFIC OFFICER 
 
 See Poi,iCB 
 TRAPS 
 
 Warning against as a crime 481A 
 
 TRAVELING 
 
 Defined ^ igp 
 
 Interstate travel igo 
 
 See Law op thb Road 
 
 TRESPASS 
 
 Considered 1488 
 
 TRIAL 
 
 Right to summary trial 493 
 
 See Practice 
 
 TROVER 
 
 Conversion 940 
 
 Right of action for conversion not shut off by foreclosure of mort- 
 gage 941 
 
 By buyer 667 
 
 TRUCK 
 
 Included under automobile .' 2 
 
 Classified in one class 113 
 
 TURNPIKE COMPANIES 
 
 Powers of 41 
 
 UMBRELLA 
 
 Pedestrian holding umbrella 1334 
 
 UNFAIR COMPETITION 
 
 In sales of motor vehicles 621 
 
 UNIFORM 
 
 Of chauffeur as showing agency 833 
 
 UNITED STATES 
 
 Constitution considered 17 
 
 Taxes under 63 
 
 "57 f^ami 
 
 7^t/t(./--j^i u J^c«-'^^t^ (/t,- 
 
INDEX 
 
 [References are to Sections.] 
 
 Customs duties 202, 203 
 
 Federal statutes as to gasoline 330 
 
 The United States mail , 200 
 
 Rules governing transportation on steam vessels 201 
 
 Interstate pleasure travel beyond federal control 196 
 
 See Interstate Travel 
 
 USAGE 
 
 See Custom 
 
 USER OF VEHICLE 
 
 Who is 216 
 
 VEHICLE 
 In Generai, 
 
 Defined 7 
 
 Jitney included under "vehicle'' 124S 
 
 Proper vehicle 220 
 
 The vehicle, its condition and repairs 221 
 
 Requirements by statute 222 
 
 The general rule 223 
 
 Responsibility of motorist 224 
 
 Using engine as brake 230 
 
 Burden of proof 231 
 
 Doctrine of "insurer" 232 
 
 Statutes governing condition and equipment of vehicles 610 
 
 The vehicle, its appliances and repairs — carrier not an insurer 1233 
 
 Degree of care varies with character of vehicle 977 
 
 Evidence of condition of automobile when shipped 1672 
 
 Broken down machine left on road frightening horse 1137 
 
 Duty of garage to get customer when car breaks down SS4 
 
 Damaged parts of car as evidence 1671 
 
 Power of the engine as evidence 1680 
 
 Opinion as to safety of car 1687 
 
 Party driving a light vehicle is bound to give way to a heavy 
 
 loaded one 344 
 
 Whether fire originates within the vehicle 780 
 
 Defective 
 
 Liability for driving defective machine 225 
 
 The vehicle, its appliances and repairs in criminal aspect 1482 
 
 Appliances — ^brakes, steering apparatus and clutch 229 
 
 When steering gear brakes 226 
 
 Brakes failing 227 
 
 Liability for furnishing defective machine to employee 228 
 
 Duty of renter to provide a safe vehicle 552 
 
 Liability of hirer for defects 870 
 
 1258 
 
INDSX 
 
 [References are to Sections.] 
 
 Responsibility of owner 599, 600 
 
 Liability of manufacturer for defective 604-610 
 
 Duty of master to supply safe vehicle and appliances — backfiring . . 92S 
 
 Defects as ground for rescission of sale 64s et seq. 
 
 Defects latent or patent as ground for rescission 646 
 
 Waiver of defects by buyer 651 
 
 Waiver of defects by purchaser 758 
 
 Knowledge of defects from failure of other cars 652 
 
 Evidence of unsafe vehicle 552 
 
 Taxation 
 
 Graded according to number of horses no 
 
 Pleasure vehicles and those of non-residents exempted 114 
 
 Exempting municipal vehicles from tax 112 
 
 Exempting motor vehicles and taxing horse-drawn vehicles 115 
 
 Higher rate on vehicles used for hire 116 
 
 See Registration 
 
 VENDOR 
 See Sales 
 
 VENUE 
 
 Where accident happened, validity Si 
 
 See Practice 
 
 VERDICTS 
 
 Considered I779-I783 
 
 In actions for personal injuries 1722-1725 
 
 VIEW 
 
 By the fury 1^34 
 
 VIGILANCE 
 
 "Perfect vigilance" not required 9So 
 
 VIS MAJOR 
 
 Considered 989 
 
 VOLUNTEER 
 
 Servant acting gratuitously 8^4 
 
 Volunteer starting car °47 
 
 Operator no duty to drive 880 
 
 Where chauffeur of another drives plaintiff home gratuitously 855 
 
 Trip in response to appeal for aid by friends of owner 898 
 
 Request of bystander to defendant 1611 
 
 See Rescuers 
 
 WAGES 
 
 Wages affecting damages '757 
 
 1259 
 
INDEX 
 
 [References are to Sections.] 
 
 WAIVER 
 
 Of condition precedent 746 
 
 Of right to rescind 683 
 
 Of right of rescission by user 687 
 
 Of rescission by allowing seller to work on car 689 
 
 Waiver of contract , 699 
 
 WAREHOUSEMEN 
 
 Garage-keepers as warehousemen 587 
 
 Warehouseman's lien for storage charges 588 
 
 WARRANT 
 
 Arrest without 516 
 
 See Arrest 
 
 WARRANTIES 
 
 Scope of chapter 740 
 
 Generally 741 
 
 Representations, warranty and conditions 742 
 
 Condition precedent 743 
 
 Condition subsequent 744 
 
 Condition precedent and subsequent 745 
 
 Waiver of condition precedent 746 
 
 Modern tendency to treat condition as warranty 747 
 
 Kinds of warranty 748 
 
 Construction of one year warranty 749 
 
 "Usual guaranty" 750 
 
 Statements in catalog as warranty 751 
 
 Circulars of manufacturer as authority to agent to warrant 726 
 
 Damages for breach of two warranties 752 
 
 Warranty limited to mechanical parts 753 
 
 Failure of car to work 754 
 
 Written warranty governs parol 755 
 
 Implied warranty 756 
 
 Sales by "sample'' 757 
 
 Duty of the purchaser to inspect — waiver of defects 758 
 
 Article ordered for a special purpose 759 
 
 Contract to manufacture to the "satisfaction" of purchaser 760 
 
 Failure to deliver on time 761 
 
 Measure of damages in such cases 762 
 
 Representations 763 
 
 Power of agents 725 
 
 Price in connection with representations 764 
 
 Used cars 765 
 
 Functions of the court and of the jury as to representations 766 
 
 Representations must have been acted upon 767 
 
 Opinions as representations 768 
 
 Rule of caveat emptor in sales by manufacturers 769 
 
 1260 
 
Fraud and deceit 
 
 INDBX 
 [References rare to Sections.] 
 
 Remedies of buyer on breach of warranty 1, 
 
 When customer had right to exchange " .' " „, 
 
 Rescission of contract 
 
 Remedying defects !!!.!! ^^^ 
 
 Damages from defective oil '\ "^"^^ 
 
 Measure of damages for breach of warranty .!!.'!;!!!!".;!.' 662 776 
 
 Measure of damages for breach as to price 7-7 
 
 WATCH 
 
 Stopwatch to test speed jg 
 
 WATCHMEN 
 
 Powers of ,„, ,„ 
 
 SOI, S03 
 
 WHEEL, TAX 
 
 Validity ^ 
 
 See further Taxation 
 
 WHEEL TRACKS 
 
 As evidence jggg 
 
 WHISTLE 
 See Signals 
 
 WILFULNESS 
 
 General averment of wilfulness 1553 
 
 Wilful negligence, see Negligence 
 
 WINDSHIELD 
 
 Frosted 1447 
 
 Blurred by rain 422 
 
 WITNESS 
 
 "Competent witness" 1703 
 
 Capacity to testify is a question for the court 1706 
 
 Children as witnesses 1707 
 
 Bias 1708 
 
 Physician 1709 
 
 Privilege of physicians 1710 
 
 Belief of witness as to facts 1700 
 
 Failure to produce witnesses 1572 
 
 Point of view 1640 
 
 Exclamations of witnesses 1608 
 
 Cross-examination 1579, 1711 
 
 WOMEN 
 
 Care required of women and towards women 1345 
 
 WORDS 
 
 Use of in general IS 
 
 See Definitions, also Appendix B 
 
 I261 
 
INDEX 
 
 [References are to Sections.] 
 WORKMEN'S COMPENSATION LAW 
 
 Discussed 923 
 
 See Agency 
 
 ZIGZAG COURSE 
 
 See Seesaw Movements 
 
 /l^lai^^-c<, %ifH^ '? 
 
 1262 
 
KF 2209 Bll 1917 
 
 
 Author 
 
 Babbitt, Charles Jacob 
 
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