HUDDY ON SIXTH EDITION 1922 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW I V, THE LAW OP AUTOMOBILES BY XENOPHON P. HUDDY, LL. B. OF THE NEW YORK BAE SIXTH EDITION ARTHUR F. CURTIS Of the Delhi, N. Y., Bar. Author of '' The Law of Electricity " and Co-editor of " Street Railway Reports," " Chattel Mortgagee and Conditional Sales," etc. Albany, N. Y. MATTHEW BENDER & COMPAX\' INCORPORATED 1922 Copyright, 1906 Bv MATTHEW BENDER & COMPANY Copyright, 1909 By MATTHEW BENDER & COMPANY Copyright, 1912 By MATTHEW BENDER & COMPANY Copyright, 1916 By MATTHEW BENDER ' or excuse for the presenta- tion of a Fifth Edition of Mr. Huddy's work. Mr. Huddy was a pioneer author in tlie law pertaining to motor vehicles. In the first edition published in 1906, he built a path when but few adjudicated cases marked the way, and he built it well. Despite the amazing development of the motor carriage, his outline of the subject made a framework which was sufficient for four editions published at various tiines during a decade. But the decisions on this l)ranch of the law increased faster, and ever faster. A lawyer would have passed the recognized bounds of ordinary common sense had he predicted in 1906 the mass of judicial authority now to lie found in the reports. To a certain extent the framework constructed by ]\fr. Huddy has collapsed under the bulk of court decisions. It has, therefore, been deemed advisable to re-arrange and re-write the major part of the book. Questions, such as, for example, the liabilit> of the owner for the acts of his chauffeur, which formerly constituted but a part of a chapter, have, in the course of the development of the law, assumed such importance, that no^^ they are entitled to an entire chapter. It is with some trepidation that the editor of this edition has assumed to make fundamental changes in the arrange- ment of the material. But care has been observed to avoid ihe escape of all valuable material in the earlier editions. With the hope that the new edition will be of equal service as its predecessors and will be as appreciatively received by the profession, it is respectfully submitted. ARTHUR F. CURTIS Delhi, N. Y., October 1, 1919. TABLE OF CONTENTS SIXTH p]DITION [References are to Pages] chaptp:r I. DEFINITIONS AND GENERAL CONSIDERATIONS. PAce Section 1. Automobile defined 1 2. Auto -^ 3. Car 4 4. Motor and motoring 4 5. Joy riding * , 6. Automobile line 5 7. Automobile as a stage coach 5 8. Automobile aa a vehicle 6 9. Automobile as a carriage ~ 10. Automobile as a pleasure carriage 9 11. Automobile as a wagon • ^ 12. Automobile as an appurtenance 10 13. Automobile as a tool or implement of trade 10 14. Extrinsic evidence of meaning of terms 10 15. Legislative definitions 10 16. Traction engine as automobile H 17. Bicycle as a vehicle 12 18. Motorcycle as a motor vehicle 12 19. Motorcycle as a carriage 13 20. Automobilist 1* 21. Owner 1* 22. Riding and driving 15 23. Automobile parts and accessories 16 24. Highways 1 ' 25. Roads 1^ 26. Streets 1^ 27. Intersecting streets '-I CHAPTER II. HISTORICAL. Section 28. Automobile vehicle of modern times 22 29. Development of motor carriage 23 30. Growth of law 23 31. Law keeps up with improvement and progress 24 32. Highways open to new uses 25 33. Tendencies in legislation 25 34. Tendencies in judicial decisions 26 Lix] X Table or Contents. CHAPTER III. NATURE AND STATUS OF AUTOMOBILE. PAGE Section 35. Automobile not merely a machiue S* 36. Automobile as a dangerous machine 29 37. Not dangeroiLS per se 33 38. Adverse judicial statements 36 39. Status of automoblist 38 40. Motive power as affecting status 39 41. CJomparison of automobiles and horse-drawn vehicles 39 42. Advantages over animal-drawn vehicles 40 43. Tendency to frighten horses ^^ 44. Automobiles as earners *" 45. As a tool or implement of trade '^3 CHAPTEB IV. GENERAL RIGHT TO USE HIGHWAYS. Section 46. General purposes of streets and highways 44 47. New means of transportation 45 48. Right of automobUist to use highways 48 49. Equal rights of automobilists and other travelers 50 50. No superior rights for automobilists 52 51. Ferries and vessels 53 52. Toll roads 54 53. Exclusion of non-residents 57 54. Automobile racing 5 / 55. Setting aside highways for speed contests 58 CHAPTER V. STATUTORY REGULATION OF MOTOR VEHICLES. Section 56. Scope of chapter ^0 57. General power of regulation 61 58. Regulatory power lodged in legislature 62 59. Purpose of acts 63 60. Title and form of statute 65 61. Due process of law 66 62. Discrimination between motorists and other persons 66 63. Discrimination between owners of different machines — be- tween different motor vehicles 68 64. Discrimination between owners of different machines — non- residents 69 65. Discrimination between owners of different machines — aliens "^ 66. Certainty of enactment 69 67. Repeal of statutes 70 68. Construction of regulations 71 Tablk of Contents. XT CHAPTER VI. MUNICIPAL RErrULATIONS. pack Sbctiok 69. Scope of chapter -3 70. Municipal power in general — power delegated from state 74 71. Municipal power in general — police power of regulation 74 72. Municipal power in general — abrogation of municipal powers. 76 73. Municipal power in general — Park Ck)mrais8ioner6 78 74. Beg^ations must not conflict with Constitution — in general. . 79 75. Regulations must not conflict with Constitution — discrimina- tion between motorists and other travelers 80 76. Regulations must not conflict with Constitution — discrimina- tion between motor vehicles 80 77. Regulations must not conflict with State law 81 78. Regulations must be reasonable 84 79. Manner of enactment 8^ 80. Application of regulation beyond municipal limits 87 81. Punishment for violation of ordinance 88 82. Proof of ordinance gg CHAPTER VII. FEDERAL CONTROL OVBB MOTORING. Sbotion 83. In general g^ 84. Powers of St^te and Federal governments 90 85. Regulation of internal matters belongs to State 90 86. Interstate motoring o-i 87. The right of transit '....!! 96 88. Citizen 's right of transit 9g 89. Transit of vehicle 9g 90. Limitation on license fees 97 91. Questions of interstate commerce not in issue 97 CHAPTER \n.U. LICENSING AND REGISTRATION. Sbotion 92. Scope of chapter 202 93. Nature of license j02 94. Nature of license fee ^q^ 95. Purpose of registration jqc 96. General power to require registration and licensing 107 97. Power of municipal corporations — in general 109 98. Power of municipal corporations -- licensing power annulled by State jjq 99. Power of municipal corporations — abrogation of municipal powers by subsequent general statute Ill 100. Power of municipal corporations — territorial application of ordinance. 113 101. Constitutionality of regulations — in general 114 102. Constitutionality of regulations — title II5 103. Constitutionality of regulations — interference with inter- state commerce jl5 xii Table of Coisttents. PAGE Skotion 104. Constitutionality of regulations — prohiliition of use of high- ways until registration 117 105. Constitutionality of regulations — license fees Leyond cost of registration 118 106. Constitutionality of regulations — double taxation 121 107. Constitutionality of regulations — exemption from other taxation 122 108. Constitutionality of regulations — taxation not leased on value of property 123 109. Discrimination — - in general 124 110. Discrimination — between motor vehicles and other convey- ances 124 111. Discrimination — different sizes of machines 125 112. Discrimination — vehicles used for different purposes . 126 113. Discrimination — dealers in different class 127 114. Discrimination — non-residents. 128 115. Discrimination — non-resident exemption based on reciprocitj-. 129 116. Registration by particular classes of owners — corporations and partnerships 131 117. Registration by particular classes of owners — registration in trade name 131 118. Registration by particular classes of owners — dealers 132 119. Registration by particular classes of owners by purchaser of machine 134 120. Registration by particular classes of owners — issuance of blank licenses to automobile organization 135 121. Registration by particular classes of owners — death of owner. 135 122. Disposition of license moneys 135 123. Vehicles to which regulations are applicable 136 124. Display of number plate 137 125. Effect of non-registration in actions for injuries — Massa- chusetts rule 139 126. Effect of non-registration in actions for injuries — general rule 143 127. Eft'ect of non-registration in actions for injuries — burden of proof 146 128. Certificate as evidence of ownership 147 CHAPTEK IX. PUBLIC CARRIAGE FOR HIRE, JITNEYS, TAXICABS, ETC. Section 129. Scope of chapter 150 130. Definitions ► 150 131. Status of carriages for hire — jitney 153 132. Status of carriages for hire — taxicab 152 133. Status of carriages for hire — sight-seeing automobile 154 134. Status of carriages for hire — ■ furnishing of cars from garage on order 154 135. Governmental regulation of carriage for hire — in general... 154 136. Governmental regulation of carriage for hire — greater power than over other classes of vehicles 157 Table of Contents. xiii PAGE Section 137. GovermiieTital regulation of carriage for hire — discrimination. 158 138. Powers of municipalities — in general 163 139. Powers of municipalities — aluogation of municipal powers.. 165 140. Powers of municipalities — reasonableness of municipal regu- lation 166 141. Powers of municipalities — enactment of ordinance 167 142. Powers of municipalities — territorial limits 167 143. State regulatory commissions 168 144. Licenses — in general 170 145. Lcenses — application to vehicles 172 146. Licenses — nature of license 173 147. Licenses — - license fees 175 148. Licenses — conflict of State and municipal licensing systems. 177 149. Licenses — plying for hire 178 150. Licenses — effect of failure to have license 179 151. Licenses — transfer of license 180 152. Licenses — licensing of chauffeurs 180 153. Exclusion from streets 180 154. Restriction to certain streets 181 155. Bonds — power to require propnetor to give bond 183 156. Bonds — inability to furnish bond 185 157. Bonds — character of sureties 185 158. Bonds — extent of surety's liability 187 159. Bonds — liability for accident outside of municipality 189 160. Hack stands — in general 190 161. Hack stands — sight-seeing automobiles 190 162. Hack stands — taxicab service for hotel 191 163. Hack stands — soliciting passengers 191 164. Routes and schedules 193 165. Punishing passenger for failure to pay fare 193 166. Taximeters 194 167. Rate of fare 195 168. Miscellaneous regulatory matters 196 169. Liability for injury to passenger — in general 197 170. Liability for injury to passenger — assault on passenger 199 171. Liability for conduct of driver 199 172. Imputation of negligence of driver to passenger 200 173. Rights of proprietor of vehicle 201 CHAPTEK X. PRIVATE HIRE OF AUTOMOBILES. Section 174. Scope of chapter 203 175. Nature of contract 20.' 176. Liability for injury from operation of machine — liability of owner for operation by hirer 204 177. Liability for injury from operation of machine — liability for acts of driver furnished by owner 205 178. Ijiability for injury from operation of machine — liability for acts of driver furnished bv hirer 207 xiv Table of Contents. PAGE Section 179 Liability for iniury from operation of machine — injury to 207 passenger "" ' 180. Injury to machine — care to be exercised by hirer 208 181. Injury to machine — loss of machine 209 182. Injury to machine — conversion of macliine by hirer 209 183. Injury to machine — deviation from agreed route 209 184. Injury to machine — right of action by hirer for injury 209 185. Duties and liabilities of parties — possession of machine 210 186. Duties and liabilities of parties — duty to carry to destination 210 187. Duties and liabilities of parties — termination of hiring 211 188. Duties and liabilities of parties — surrender of machine 211 189. Duties and liabilities of parties — compensation for hire 212 CHAPTER XI. GARAGE AND GARAGE KEEPERS. Section 190. Scope of chapter '^-^ 191. Garage defined - ^^^ 192. Status of garage keeper 215 193. Garage as a nuisance 194. Restrictive covenant forbidding garage 217 195. Regulatory power over garages — in general 220 196. Regulatory power over garages — licensing 222 197. Regulatory power over garages — location 222 198. Regulatory power over garages — manner of construction 224 199. Regulatory power over garages — storage of gasoline 224 200. Regulatory power over garages — keeping register of repairs. 226 201. Rights of garage keeper 227 202. Liability of garage keeper — in general 230 203. Liability of garage keeper — gratuitous bailee 231 204. Liability of garage keeper — injury by fire 232 205. Liability of garage keeper — property stolen from garage 232 206. Liability of garage keeper — use of machine without owner's consent "^ 207. Liability of garage keeper — damage to machine while driven by bailee ^^^ 208. Liability of garage keeper — conversion of customer's auto mobile. 236 209. Liability of garage keeper — delay in making repairs 238 210. Liability of garage keper — improper performance of work on machine *^° 211. Liability of garage keeper — sale of inferior supplies 2i39 212. Liability of garage keeper — burden of proof 240 213. Liability of garage keeper— acts of driver injuiying third person 241 214. Liability of garage keeper — acts of servant towing disabled machine 242 215. Liability of garage keeper — defective premises 243 Table of Co^■T^:^•Ts. xv CHAPTER XII. CHAITFFKURS. pack Section 216. Scope of chapter 245 217. Chauffeur defined 246 218. Origin of term ' ' chauffeur " 247 219. Status of chauffeur 247 220. Regulation of chauffeurs — in general 248 221. Regulation of chauffeurs — powers of municipalities 249 222. Regulation of chauffeurs — age limit 250 223. Licensing of chauffeurs — in general 251 224. Licensing of chauffeurs — discrimination between paid chauf- feurs and other operators 252 225. Licensing of chauffeurs — unlicensed chauffeurs receiving in- struction 253 226. Licensing of chauffeurs — effect of failure of chauffeur to have license 254 227. Rights of chauffeur 256 228. Liability of master for injury to chauffeur 257 229. Liability of chauffeur to owner 260 CHAPTER XIII. MISCELLANEOUS SUBJECTS OF REGULATION. Section 230. Speed 261 231. Exclusion from highways 263 232. Restriction to certain streets 264 233. Identification of machine 266 234. Obstruction of streets 266 235. Advertising on public vehicles 268 236. Law of road 268 237. Smoke and odors 270 238. Liability for injuries 271 2.39. Taxation 271 240. Service of process on automobilist 273 CHAPTER XIV. LAW OF THE ROAD. Section 241. In general 276 242. Object of rules 277 243. Judicial notice 277 244. Application of statutes or ordinances — pedestrians 278 245. Application of statutes or ordiniuices — bicycles 278 246. Application of statutes or ordinances — street railway cars . . . 279 247. Driving along street — on wrong .'^ide of highway 279 248. Driving jilong street — distance from curb 281 249. Meeting and passing other travelers — in general 282 250. Meeting and passing other travelers — right of center line of highway 284 251. Meeting and passing other travelers — seasonable turn to right. . 283 xvi Table of Contents. PAGE Section 252. Overtaking and passing other travelers — turning to left to pass 253. Overtaking and passing other travelers — turning to right after passing ; • • 254. Overtaking and passing other travelers — meeting tliird vehicle after passing toward left --^^ 255 Overtaking and pa-ssing other travelers — slower vehicles at curb 289 256. Overtaking and passing other travelers — duty of forward vehicle to permit passage 290 257. Overtaking and passing other travelers — passing at corner where forward vehicle turns to left 291 258. Turning corners — turning toward the right 291 259. Turning corners — turning toward the left 293 260. Intersecting streets — equal rights of travelers 295 261. Intersecting streets — superior right of first arrival 296 262. Intersecting streets — regulations giving superior rights along 2Q7 one street 263. Turning or backing machine 300 264. Signals from one driver to another 303 265. Obedience to directions of traffic officer 304 266. Driving on walk or place reserved for pedestrians 304 267. Effect of violation of law of road — as evidence of negligence. 304 268. Effect of violation of law of road — imposition of higher degree of care 307 269. Effect of violation of law of road — proximate cause 308 270. Excuse for violation of law of road — in general 309 271. Excuse for violation of law of road — avoiding obstacle in road. ni 272. Excuse for violation of law of road — turning to avoid negli- gent driving of another 312 273. Excuse for violation of law of road — insufficient time to obey rule. 513 274 Excuse for violation of law of road— skidding on wrong side of road 313 275. Negligence in adhering to law of road 313 CHAPTER XV. NEGLIGENCE IN OPERATION OF MOTOR VEHICLES, IN GENERAL. Section 276. Analogy to law governing horse-drawn vehicles 317 277. Degree of care required of automobilists — in general 318 278. Degree of care required of automobilists — commensurate with dangers 321 279. Degree of care required of automobilists — higher care at street crossings 326 280. Degree of care required of automobilists — liigher care when driving on wrong side of Mghway 328 281. Degree of care required of automobilists — higher care im- posed by statute 328 Tablk of Contexts. xvii PAGE Section 282. Degree of care roquireil of automobilists — care by common carriers 330 283. Driver of auto not an insurer against accidents 330 284. Unavoidable accident — in general 332 285. Unavoidable accident — conduct of driver in emergency 333 286. Unavoidable accident — avoidance of dangerous situation.... 334 287. Unavoidable accident — precedent negligence may bar claim of unavoidable accident 334 288. Unavoidable accident — moving automobile under directions of police oflScer 335 289. Proximate cause — in general 335 290. Proximate cause — concurring negligence of third party 337 291. Proximate cause — intervening agency 338 292. Competency of driver of motor vehicle — in general 339 293. Competency of driver of motor vehicle — presumption as to skill of driver 340 294. Competency of driver of motor vehicle — physical condition of driver 341 295. Competency of driver of motor vehicle — permitting imma- ture child to drive car 343 296. Competency of driver of motor vehicle — opinion of witness as to competency of driver 344 297. Effect of violation of statute or municipal ordinance — in general 344 298. Effect of violation of statute or municipal ordinance — viola- tion as contributory negligence 348 299. Effect of violation of .statute or municipal ordinance — who may invoke violation 349 300. Effect of violation of statute or municipal ordinance — prox- imate cause of injury 351 301. Effect of violation of statute or municipal ordinance — con- tributory negligence of injured as a defense 353 302. Effect of violation of statute or municipal ordinance — neces- sity of pleading ordinance 353 303. Speed of machine — in general 355 304. Speed of machine — proximate cause 356 305. Speed of machine — unreasonable speed prohibited 357 306. Speed of machine — statute or ordinance regulating speed... 359 307. Speed of machine — speed at night 360 308. Speed of machine — at turns 362 309. Speed of machine — density of traffic 363 310. Speed of machine — passing street cars 363 311. Speed of machine — street intersections 364 312. Speed of machine — at railroad or street railway crossings... 366 313. Speed of machine — approaching embankment or descent.... 368 314. Speed of machine — over bridges 369 315. Speed of machine — past children in street 369 316. Speetl of machine — frightening horses 369 317. Speed of machine — regulation prohibiting "• unreasonable " speed 370 xviii Taih.f. of Contents. PAGE Section 318. Speed of machine — lire and police vehicles 372 319. Speed of machine — military or mail vehicle 374 320. Speed of machine — violation of speed regulation as evidence of negligence ' 374 321. Speed of machine — violation of speed regulation as negligence per se 375 322. Speed of machine — excessive speed as prima facie evidence of negligence 376 323. Speed of machine — excuse of violation of speed regulation.. 378 324. Speed of machine — negligent thought not exceeding speed limit 379 325. Speed of machine — pro\dnce of jury 381 326. Control , 382 327. Duty to stop 384 328. Negligence in stopping 387 329. Warning of approach — in general 387 330. Warning of approach — statutes or ordinances , . . . . 390 331. Warning of approach — sufficiency of warning 393 332. Lookout — in general 393 333. Lookout — toward the rear 395 334. Lookout — toward the side 396 335. Lookout — intensiveness of looking 396 336. Lookout ■ — charged with notice of what should have been seen . 397 337. Noise 398 338. Skidding 400 339. Condition of vehicle 402 340. Leaving car in street unattended — in general 404 341. Leaving car in street unattended — at night 406 ■ 342. Leaving car in street unattended — vehicle started by act of third person 406 343. Leaving car in street unattended — statute or ordinances .... 407 344. Lights on machine — statutory requirements 407 345. Lights on machine — probative force of violation 410 346. Lights on machine — sufficiency of lights 410 347. Lights on machine — proximate cause 411 348. Lights on machine — animal-drawn vehicles 412 349. Towing disabled vehicle 414 350. Sufficiency of compliance with statute 415 351. Contributory negligence of injured person 416 352. Assumption that other travelers will exercise due care 417 353. Conflict of laws 419 354. Joinder of cause of action for injuries to two persons 419 355. Damages — in general 420 356. Damages — mental anguish 421 357. Damages — punitive damages 422 358. Damages — increased damages 423 359. Function of jury 423 360. Traction engines 426 Tablk of Contents. xix CHAPTER XVI. COLLISIONS WITH OTHER VEHICLES. pagk SECTION 361. Care in avoiding other vehicles, in general .■■■-■ 428 362. Proof of defendant's negligence required to support action ^^^ for injuries 363. Unavoidable accident — generally ',"'■" 4,0 364 Unavoidable accident-skidding to avoid injury to pedestrian 433 364 Unavoidable accident — deflection to avoid dog «^ 366 Unavoidable accident — failure of brakes to work. •••■•••• *•** 367 Unavoidable accident — vehicle obscured by glare of other 4o4 lights . „ 368. Unavoidable accident - care to avoid dfuigerous situation. ... 434 369. Injury from wagon 370. Excessive speed • ' " 371. Turning to right to pass approaching vehicle— duty of each ^^ to exercise reasonable care ^ • ■ 372 Turning to right to pass approaching vehicle — law of road . . . 4rfb 373. Turning to right to pass approaching veliicle - statute requir- ing turn to right of center of road 374. Turning to right to pass approaching vehicle — seasonable turn . , , 4o8 to right . 375. Turning to right to pass approaching vehicle - violation of law of road not negligence per se ■ • • 376. Turning to right to pass approaching vehicle - presumption of negligence from violation of law of road *40 377. Turning to right to pass approaching vehicle — rebuttal of presumption of negligence from violation -i^l ■ 378. Turning to right to pass approaching vehicle — obedience to law of road does not excuse negligence 444 379. Turning to right to pass approaching vehicle — treble damages under statute 380. Overtaking and passing — in general *^ 381. Overtaking and passing — forcing forward vehicle in danger- ous situation 382. Overtaking and passing — law of the road 448 383. Overtaking and passing — effect of violation of law of road. . 449 384. Overtaking and passing — reading statute to jury 450 385. Overtaking and passing — coUision with second vehicle after /. . 450 passing first 386. Overtaking and passing — unexpected stop of forward ear. . . 451 387. Overtaking and passing — passing near corner 453 388. Turning corners — in general • 389. Turning corners — turning towards the right 455 390. Turning corners — turning towards the left 455 391. Approaching intersecting streets — in general 457 392. Approaching intersecting streets — crowded thoroughfares. ... 458 393. Approaching intersecting streets — priority of first arrival. ... 459 394. Approaching intersecting streets — priority given by statute T .... 4b0 or ordinance 395. Vehicle standing in street XX Table of Contents. PAOF. 464 Section 396. Proximate cause 397. Joint liability of Itoth drivers to third person 4bb 398. Contributory negligence — generally 467 399. Contributory negligence — proximate result of contributory negligence • ■ ^^^ 400. Contributory negligence — unskillful driving 4oJ 401. Contributory negligence — alertness 470 402. Contributory negligence — wantonness or recklessness of de- fendant *^^ 403. Contributory negligence — ^-iolation of law of road 472 404. Contributory negligence — sudden stop 474 405. Contributory negligence — failure to give passing vehicle suf- ficient space ' 406. Contributory negligence — absence of statutory lights 475 407. Contributory negligence — excessive speed • • 476 408. Contributory negligence — passenger in dangerous position... 477 409. Contributory negligence — reliance on obedience of law of road by other vehicles 477 410. Contributory negligence — acts in emergency 4/9 411. Contributory negligence — last clear chance 480 412. Pleading ^^^ 413. Negligence is generally a question for the jury 484 CHAPTER XVII. COLLISION WITH PEDESTRIAN. Section 414. General duties of foot travelers aJid drivers of motor vehicles. 488 415. Proximate cause 416. Unavoidable accident 497 417. Persons under disability 498 418. Children in street — in general 500 419 Children in street — child suddenly coming in front of or near machine 420. Children in street — climbing on machine 504 421. Confused pedestrian ^06 422. Workmen in street '^07 423. Driving past street car — in general 508 424. Driving past street car — moving street car 511 425. Driving past street car — statutory and municipal i oquirements 511 426. Driving past street car — assisting passenger on car 513 427. Driving past street car — auto on wrong side of street 514 428. Driving past street car — liability of street railway company. . 515 429. Driving on walk or place reserved for pedestrians — in general 516 430. Driving on walk or place reserved for pedestrians — sidewalk. 517 431. Driving on walk or place reserved for pedestrians — safety zone 519 432. Passing pedestrian walking along road 519 433. Motor vehicle on wrong side of street 521 434. Turning corner 523 435. At street crossing — in general 524 Tablk of Contents. >^xi PAGE SKCiK.x 43H. At street crossing _ unfavorable weather c-on.litions 527 437. At street crossing — view o1)structP(l 3- 438. Lookout for pedestrians " 439. Avoidance of person standing in street 0^ 440. Hudden turning or backing without warning 5-1 441. Speed and control of automobile — control in general 5^^ 442. Speed and control of automobile — stopping 5^^ 443 Speed and control of automobile — speed ^<^3 444 Speed and control of automobile — speed prescribetl by statute ^ ,. Dob or ordinance _^„ 445. Speed and control of automobile - auto turning orncr Oo^ 446. Vehicle left standing in street ^^_ 447. Lights ,^^ 448. Signal of approach ^^^ 449. Towing disabled vehicle - ;j4o 450. Pleading _ 451. Damages! 452. Function of jury CHAPTER XVIII. CONTRIBUTORY NEGLKiENrH OF PKDKSTRIANS. 550 Skction 453. General duty of pedestrian 454. As dependent on surrounding t•ir(•u.^^tances o^^ 455. Place of crossing — in general 456. Place of crossing - crossing street at other than usual cross- boi mg _^^ 457. Place ()i crossing — walking along highway ^o" 458. Duty to look for approaching automobiles — railroad rule — to stop, look and listen • • • 459. Dutv to look for approaching mitomobiles — duty to look be- . , 562 fore crossing street 460. Duty to look for approaching automobiles — looking for vehi- cles on wrong side of street • ^ ' 461. Dutv to look for approaching automobiles — obstructed view, obh 462. DutV to look for approaching automobiles — continuing to look 569 463 Dut'v to look for approaching automobiles — looking back. ... 5/1 464. Failure to see approaching machine after looking — in general o/- 465 Failure to see approaching machine after looking — view ob- , , 5/4 structed 466 Failure to see approaching machine after looking — weather ,.^. 5^v PAGE SECTION 587. Relative rights of street cars an.l automobiles - - street railway _^^ compaiiv not an insurer • ' • 588. Relative ViRht« of .treet ca,s .n.l auton.olnles - burden of _^^_ proof as to noght-ence • • • • ' ' .589. Relative rights of street cars and automolnles - when -on- _^^_ tributorv negligence not neces.sanly a bar. . . • • • • • 590. Relative Vights of street cars and aut<.n,ob,le. - proxnnate 747 cause ■ -to 591. General duty of automobilist to exercise due care _ 592. Looking for approaching street cars - m general . ...... ..... 59.x Looking for approaching street cars - proper place for look- ^_^ 594. L^kmg f «; appr;..ch;ng' st^reel "ca,; - continuity of loo^ng^- 755 595. Looking for approaching street cars - ignorance of st.eet cai __^_ 596. L!2ng" f o; 'approachinV '^tn-^i "car^ ^- backing or turning in __^^ 597. Looking for approaching ..treet cars - failure to see. though __^ looking V ' ,' • ' .L 7^^ 598. Looking for approaching street cars - looking to rear -ob 599. Crossing in front of observed car ^^^ 600. Driving auto along track — in general l^__ 60L Driving auto along track — car from rear ^^'^ 602 Driving auto along track — car in front • ; • • 603. Speed and control of automobile - approaching intersecting _^^_ streets ; y^g 604. Speed and control of automobile — stopping. • ■ • ■ • . • • 605 Speed and control of automobile - unfamibanty with brakes .69 606'. Speed and control of automobile - automobile running against _^^ street car r69 607. Stopping auto near tracK __^ 608. Turning or backing auto in street. • ^_^ 609. Reliance on proper care by street railway ^^^ 610. Violation of regulation by autoist _^^ 611. Auto stalled on tracks __g 612. Acts in emergencies __. 613. Last clear chance doctrine _.^ 614. Function of jury ^^^^ 615. Negligence of railway — in general _^^ 616. Negligence of railway — lookout _ 617. Negligence of railway — speed _ ^ 618. Negligence of railway — stopping, if necessary >_^_ 619. Negligence of railway — warning of approach '_-^^ 620 Negligence of railway — private crossings ^ _ 621. Liability of street railway company to its passenger ^»_ 623. Liability of auto driver xxvi Table of Contents. CHAPTER XXIII. PAGE LIABILITY FOR ACT OF DRIVER; MASTER AND SERVANT. Section 623. Liability does not aiise from mere ownership — in genoraL . . 789 624. Liability does not arise from mere ownership — automobile not an inherently dangerous machine 791 625 Liability does not arise from mere ownership — defective auto- 792 mobile. . '^" 626. Liability does not arise from mere ownership — statutory change in common law rule '^"^ 627. Liability for conduct of chauffeur — employment alone insuf- ficient to charge owner '^^^ 628. Liability for conduct of chauffeur — driver must be acting within scope of duty '^^ 629 Liability for conduct of chauffeur — owner riding in machine. . 802 630. Liability for conduct of chauffeur — use of car without con- sent of owner ""'* 6.31. Liability for conduct of chauffeur — pi ivate use by chauffeur with consent of owner • • • • 806 632 Liability for conduct of chauffeur-- variance from direct course. 8^9 633. Liability for conduct of chauffeur — returning to employment after unlawful divergence ^1^ 634. Liability for conduct of chauffeur — chauffeur acting under direction of owner's family or guests 816 635. Liability for conduct of chauffeur — testing machine 817 636. Liability for conduct of chauffeur — chauffeur after personal laundry °^' 637. Liability for conduct of chauffeur — chauffeur taking car for meals 818 638. Liability for conduct of chauffeur — chauffeur taking pas- 81 Q senger °^^ 639. Liability for conduct of chauffeur — chauffeur permitting an- other to run machine 820 640. Liability for conduct of chauff'eur — procurement of repairs to machine • "'sl 641. Liability for conduct of chauft'eur — chauffeur furnished by another 822 642. Liability for conduct liy cliauffeur — car loaned to third per- son 64o. Liability for conduct of chnufteur — car and driver loaned. . . 825 644. Liability for conduct of cluiuffeur — owner letting car foi hire 827 645. Liability for conduct of chauffeur — independent contractor having possession of machine 830 646. Liability for conduct of chauffeur —- garage keeper or bailee having possession of automobile 831 647. Liability for conduct of chauffeur — seller 's agent accom- panying purchaser 83o 648. Liability for conduct of chauffeur — agent trying to sell machine 833 824 Tabij", of Contexts. xxvii « PAGB Section (349. Liability fur cuudiict of cluiufFcui- — school givinj,' iiir%t ruction. 834 650. Liability for conduct of cliaufFcur — chauffeur toachinf; opera- tion, of automobile 835 65L Liability for conduct of cliautfeur -- driver employed to tow automobile 836 652. Liability for conduct of chaufTeur — fellow servants of chauf- feur 836 653. Liability for conduct of chauffeur — pleading 837 654. Liability for conduct of chauffeur — admissibility of state- ments of driver 837 655. Liability based on control of machine 838 656. Machine driven by member of owner's family — relation of parent and child does not determine liability of owiier 839 657. Machine driven by member of owner's family — relation of master and servant 841 658. Machine driven, by member of owner's family — u.>i' without consent of owner 843 659. Machine driven by member of ownier's family — use for car- riage of owner 's family 844 G60. Machine driven by member of owner 's family — u.>e for pri- vate purposes of driver 846 661. Machine driven by member of owner's family — husband and wife 851 662. Machine driven by memluM- of owner's family — immature or incompetent driver 853 663. Lialiility of corporations 854 664. Municipal corporations 856 665. Liability of seller of automobile for act of servant 858 666. Liability of bailee " 859 667. Liability of passenger 861 668. Automobile jointly owned 861 669. Criminal liability for acts of driver. 862 670. Ratification of serv'ant '» act 863 671. Presumption of ownersiup — from license number 864 672. Presumption of ownership — from name on macliine 865 673. Presumption of management from ownership — in general... 865 674. Presumption of nianagemenl. from ownership — rebuttal of presumption .' 871 675. Verdict exonerating chauffeur, but holding owner. 873 676. Examination of owner before trial 874 677. Function of jury 874 CHAPTER XXIV. STATUS OF GUESTS AND PASSENGERS. Section 678. Liability of automobilist for injuries to gues^t 877 679. Imputation of driver's negligence to other occupant ^ — ^major- ity view 883 680. Imputation of driver's negligence to other occupant — minority view. 890 ^xxviii Tabijp of Contents. PAGE Section 681. Imputation of driver's negligence to other occupant — statu- torj' change in doctrine of imputed negligence 801 682. Imputation of driver's negligence to other occupant — Avhcn passenger and driver are engaged in common purpose.... 892 683. Imputation of driver's negligence to other occupant — control by passenger of movement of machine 89.5 684. Imputation of driver's negligence to other occupant — master and sei"\'ant 895 685. Imputation of driver's negligence to other occupant — hus- band and wife S96 686. Imputation of driver's negligence to other occupant — parent and child 897 687. Imputation of driver's negligence to other occupant — pas- senger for hire 898 688. Contributory negligence of passenger — in general 899 689. Contributory negligence of passenger — looking for dangers.. 902 690. Contributory negligence of passenger- — reliance on driver.... 904 691. Contributory negligence of passenger — riding with intoxi- cated driver 908 692. Contributory negligence of passenger — failure to warn driver of dangers 909 693. Contributory negligence of passenger — remaining in ma- chine 91 1 694. Contributory negligence of passenger — ijermitting driver to run at excessive speed 912 695. Contributory negligence of passenger — defective machine... 913 CHAPTER XXV. SAFETY OF ROADS FOR AUTOMOBILES. Section 696. In general 914 697. Municipalities not insurers against injuries from defective highways 917 698. Obstructions 917 699. Obstructions placed in streets by others 919 700. Holes or excavations 920 701. Guarding 922 702. Slippery suif ace 924 703. Width of road 925 704. Bridges 925 705. Proximate cause , 926 706. Knowledge of defect 928 707. Notice of injury 929 708. Liability of abutting owners and others for defects in streets. 930 709. Joint wrongdoers 931 710. Contrilnitory negligence of traveler — in general 932 711. Contributory negligence of traveler — light to assume safety of highway 933 712. Contributory negligence of traveler — violation of statute or law of road 934 Table of Contents. xxix Section- 713. Contributory iicgiigence of traveler — assumption of danger. . . 935 714. Contributory negligence of traveler — lookout 93o 715. Contributory negligence of traveler — speed 937 716. Contrilnitory negligence of traveler — negligence of passenger. 938 CHAPTER XXVI. MEASURE OF DAMAGES FOR INJURY TO AUTOMOBILE. ^,. , , 940 Section 71 / . In oeni>ral 718. Market value ■ ■ ^*J 719. Difference between value before and after injury 942 720. Cost of repairs ^ 721. Expenses of preserving car from further injury 946 722. Usable value for period of repairs — in general 946 723. Usable value for period of repairs — rental value 949 724. Payments to chauffeur during repairs 951 CHAPTER XXVII. CRIMINAL OFFENSES. Section 725. Criminal responsibility for acts of cliauffeur — owner 952 726. Criminal resposibility for acts of chauffeur — pa^ssenger 95o 727. Criminal responsibility for acts of chauffeur — accessory to v-iolation of law 9o 728. Speed regulations — common law misdemeanor 956 729. Speed regulations — power of State 95^ 730. Speed regulations — violation of ordinance ■ • • 958 731. Speed regulations — establishment of signs as to speed lim- ited by ordinance ^"^ 732. Speed regulations — definiteness of statute 961 733. Speed regulations — exceeding" " common traveling pace ". . 962 734. Speed regulations — violation not malum in se 96- 735. Speed regulations — intention ^ 963 736. Speed regulations — ignorance of speed limit ■ • 964 737. Speed regulations — exceptions in emergency cases — police and fire apparatus " ^_ 738. Speed regulations — warning autoists of speed trap 90o 739. Speed regulations — former jeopardy 966 740. Speed regulations — identification of offender 967 741. Speed regidation* — information or indictment 96i 742. Speed regulations — punishment 968 743. Speed regulations — evidence of speed 969 744. Statutes with no prescribed limit of speed 969 745. Defending speed cases — in general 9/^0 746. Defending speed cases — arrests 9/^1 747. Defending speed cases — extenuating facts in defense 971 748. Defending speed cases — preparing the defense 972 749. Defending speed cases — making tests 9( .:. 750. Defending speed cases — that rate of speed was on speedway where permitted ' ^ 751. Defending speed cases — identity of defendant 9-4 XXX Table of Contents. PAGE Section 752. Defending speed cases — arrests at night 975 753. Defending speed cases — venue 975 754. Defending speed cases — evidence of peace officers 975 755. Defending speed cases — evidence of speed 976 756. Defending speed cases — speedometer 978 757. Homicide — reckless driving as murder 978 758. Homicide — negligent or illegal driving as manslaughter 980 759. Homicide — unusual speed 983 760. Homicide — racing along public Ixighways 983 761. Homicide — accidental killing 984 762. Homicide — death of passenger in motor vehicle 985 763. Homicide — liability of owner 985 764. Homicide — burden of proof 985 765. Homicide — contributory negligence of decedent lu; ii defense. 986 766. Homicide — prior reputation of chauffeur for care 987 767. Assault and battery 9^7 768. Larceny or theft of automobile 990 769. Using machine without consent of owner 992 770. Failure to register machine 995 771. Failure of chauffeur to have license 996 772. Driving machine while intoxicated 996 773. Violation of law of road 997 774. Failure to stop on signal • ^98 775. Stopping and furnishing identity in case of accident — consti- tutionality of statute ^^" 776. Stopping and furnishing identity in case of accident — intent. 1001 777 Stopping and furnishing identity in case of accident — burden of proof • 1002 778. Stopping and furnishing 'identity in case of accident — time of report 1003 779. Stopping and furnishing identity in case of accident — no person to receive report lOOo 780. Lights on machine 1004 • 781. Eemoval of manufacturer's serial number 1005 782. Reward for apprehension of offenders 1006 CHAPTEK XXVIII. MANUFACTURERS OF MOTOR VEHICLES. Section 783. Scope of chapter • 1007 784. Relation with dealers and salesmen -^ agency defined 1008 785. Relation with dealers and salesmen — nature of contract be- tween manufacturer and dealer 1008 786. Relation with dealer and salesman — mutuality of contract. . . 1009 787. Relation with dealers and salesmen — definiteness of order for machines • 1010 788. Relation with dealers and salesmen — interstate commerce 1011 789. Relation with dealers and salesmen — remedy ^ of dealer for failure of manufacturer to perform contract 1011 Table of Contents. xxxi PAGE Section 790. Relation with dealers ami salesmen - recovery by dealer of deposit 1013 791. Relation with dealers and salosineu — return of parts to manufacturer 1014 792. Relation with dealers and salesmen - sales by manufacturer in dealer 's exclusive territory 1015 793. Relation with dealers and salesmen — sales and authorized by manufacturer 1016 794. Relation with dealers and salesmen — authority of agent to bind manufacturer 1016 795. Relation with dealers and salesmen — ratification by manu- facturer of unauthorized acts of agent 1017 796. Relation with dealers and salesmen — termination of contract. 1017 797. Relation with dealers and salesmen — dealer and sub-dealer.. 1021 798. Relation with dealers and salesmen — fixing price for sale by dealer 1021 799. Relation between manufacturer and consumer — in general.. 1022 SOO. Relation In'tweeu manufacturer and consumer — liability foi injury from defect 1023 801. Relation between manufacturer and consumer — duty to make repairs IO25 802. Relation between manufacturer and consumer — sharing profits with consumer 1025 803. Trade marks 1026 CHAPTEE XXIX. INSURANCE. Section 804. Fire insurance — construction of policy J030 805. Fire insurance — insurable interest 1030 806. Fire insurance — false representatioiis 1030 807. Fire insunuice — change of title 1032 808. Fire insurance — incumbrance on property 103;i 809. Fire insurance — private garage warranty 1033 810. Fire insurance — safe-guarding machine 1034 811. Fire insurance — use for rent or hire 1035 812. Fire insurance — determination of amount of loss 1036 813. Fire insurance- — acceptance of repairs in lieu of money 10.36 814. Fire insurance — valued policy 1037 815. Collision insurance — in general 1037 816. Collision insurance -- collision with stationary objects 103S 817. Collision insurance -- exception for damage in striking por- tion of road 10;>.i 818. Collision insurance — exception in case of upset of machine.. 1040 819. Collision insurance — damage while in garag( 1040 820. Collision insurance • — amount of recovery 104 1 821. Collision insurance — recovery for damage against third per- son though insured 1041 822. Collision insurance — subrogation of insurer 1041 823. Indemnity insurance — nature and validity of insurance 1042 xxxii Table of Contents. PAGE Section 824. Indemnity insurance — authoiity of .company to write 1042 825. Indemnity insurance — stipulation to defend "suits" 1043 826. Indemnity insurance — assumption of defense of action 1043 827. Indemnity insurance — indemnity of partners 1044 828. Indemnity insurance — action against officer of in;.ui ed cor- poration 1044 829. Indemnity insurance — age of driver 1045 830. Indemnity insurance — change of use of machine 104(5 831. Indemnity insurance — notice to insurer of accident 104G 832. Indemnity insurance — failure of insured to co-operate with insurer 1^* ' 832a. Indemnity insurance — interference with negotiations for compromise 1048 833. Indemnity insurance — necessity of trial of action 104S 834. Indemnity insurance — consent of insurer to settlement 1049 835. Indemnity insurance — amount of recovery by assured 1050 836. Indemnity insurance — evadence of insurance in action against insured 1050 837. Indemnity insurance- — action by injured person against in- surance company 1052 838. Theft insurance — conversion without intent to commit crime. 1053 839. Theft insurance — larceny by trick or device 1055 840. Theft insurance — by persons not in service of owner 1055 841. Theft insurance — stealing proceeds of sale of automobile 1056 842. Theft insurance — sufficiency of proof of theft 1056 843. Theft insurance — amount of damage 1057 844. Theft isurance — subrogation of insurer 1058 845. Accident insurance 1058 CHAPTER XXX. SALES OF MOTOR VEHICLES. Section 846. Scx^pe of chay^er 1060 847. Capacity of parties to sale — infants 1061 848. Capacity of parties to sale — agents 1062 849. Capacity of parties to sale — municipal corporations 106;; 850. Capacity of parties to sale — private corporations lOW 851. Delivery 1064 852. Validity of sale — violation of motor vehicle laws 1060 853. Validity of sale — machine to be used for un'iawful purpose. . 1066 854. Validity of sale — statute of frauds 1067 855. Validity of sale — seller not owning machine 1067 856. Fraud and deceit 1068 857. Warranties — in general 1071 858. Warranties — caveat emptor 1072 859. Warranties — " seller's talk " 1073 860. Warranties — machine sold on ' ' usual warranty " 1074 861. Warranties — guaranty of satisfaction 1074 862. Warranties — warranty of future service 1075 863. Warranties — implied warranty of fitness 1076 Table of Contents. xxxiii PAGE Six.'TiON 863. Warranties — effect of express contract on implied warranty. 1077 865. Warranties — damages 107S 866. Warranties — parol evidence to show warranty 1080 867. Warranties — waiver of t)reach of warrant} 1081 868. Warranties — statements of agent 1082 869. Remedies of seller 1 082 870. Eeniedies of purchaser — in general 1081 871. Remedies of purchaser — rescission of contract 1085 872. Remedies of purchaser — recoveiy of purchase price lOHJt 873. Tax on sales 1090 874. Tax on dealers 1090 CHAPTER XXXI. LIENS. Section 875. Repairs — in general 109- 876. Repairs — filing notice of lien 1094 877. Repairs — priority of lien 1095 878. Repairs — loss of lien by surrender of possession 1096 879. Repairs — loss of lien by excessive demand 1097 880. Repairs — assignment of lien 1098 881. Storage 109S 882. Chattel mortgages — in general 1099 883. Chattel mortgages — filing or recording 1101 884. Chattel mortgages — recovery by mortgagor for injuries to machine 1101 885. Conditional sales — in general 1102 886. Conditional sales — filino- of instrument 1103 887. Conditional sales — levy on interest of vendee *. . . . 1103 888. Conditional sales — right of vendee to maintain action f oi- injuries 1104 889. Conditional sales — retaking the machine by vendor 1104 890. Lien foj- injuries caused by machine 1 1 06 CHAPTER XXXII. EVIDENCE. Section 891. .Judicial notice — nature of aut(»niobih» IIOS 892. .Judicial notice — - law of the road 11 09 893. Judicial notice — municipal ordinances 1101* 894. Presumptions 1 1 li» 895. Real evidence — parts of vehicle 1 1 lo 896. Real evidence — photogrnphs 1111 897. Relevancy - — in general 1 1 1 1 898. Relevancy — conduct of accused 1112 899. Relevancy — arrest of autoTnobilist 111:'. 900 Relevancy — prior conviction 1 1 1 •'• 901. Relevancy — injuries as evidence of force of collision 1114 902. Relevancy — discharge of chauffeur after accident 1 1 H 903. Relevancy — proof of "mental state of i)arty . . 1 1 14 904. Relevancv — caie in selection of nn)t())- vehicle 111.! xxxiv Table of Contexts. PAGE Section 905. Kelevaiicy — wheel tracks in liighway 1115 906 Admissions and declarations — admissions >iy owuor of liabil- ity 1115 907. Admissions and declarations — admissions by agent of de- fendant 1116 908. Admissions and declarations — res gestae 1116 909. Admissions and declarations — declarations of suffering 1117 910. Conclusions of witnesses ' 1117 911. Opinions — value 1118 912. Opinions — safety of highway 1120 913. Opinions — competency of driver 1121 914. Opinious — defects in nuichinc 1121 915. Opinious — matter of collision 1121 916. Opinions — noise of machine 1121 917. Opinions — identification of machine from track 1121 918. Opinions — distance in which object can be seen 1122 919. Opinions — distance in which machine may be stopped 1122 920. Proof of speed of vehicle — opinion of driver 1123 921. Proof of speed of vehicle — opinion of ob.server 1124 922. Proof of speed of vehicle — opinion of passenger 1126 923. Proof of speed of vehicle — qualification of witnesses 1127 924. Proof of speed of vehicle — foundation for opinion 1129 925. Proof of speed of vehicle — characterization of speed 1129 926. Proof of speed of vehicle — estimate of .speed from track... 1131 927. Proof of speed of vehicle — noise of machine 1132 928. Proof of speed of vehicle — conflict between opinion and sur- rounding circumstances 1132 929. Proof of speed of vehicle — speed at one place as evidence of speed at another 1133 930. Proof of speed of vehicle — experiments 1134 931. Proof of speed of vehicle — photo — speed — recorder 1134 932. Proof of speed of vehicle — speedometer 1135 933. Proof of speed of vehicle — evidence under English law 1136 934. Bes inter alios acta — negligence on other occasions 1136 935. Ses inter alios acta — care after accident 1138 936. Bes inter alios acta — defects in other machines 1138 937. Bes inter alios acta — habits 1139 938. Bes inter alios acta — competency of driver 1139 CHAPTER XXXIII. FORFEITURE OF VEHICLES VIOLATING LAW. Section 939. Introductory 1141 940. Constitutionality of forfeitures 1141 941. Statutes authorizing forfeiture 1142 942. General constniction of statutes 1143 943. Illegality of use of vehicle 1143 944. Protection of liens 1144 , 945. Rights of ' ' innocent ' ' owner 1148 946. Burden of proof as to innocence of claimant 1150 947. Procedure ' • • 1151 THE LAW OF AUTOMOBILES SIXTH EDITION CHAPTER I. DEFINITIONS AND GENERAL CONSIDERATIONS. Section 1. Automobile defined. 2. Auto. 3. Car. 4. Motor and motoring. 5. Joy riding. 6. Automobile lino. 7. Automobile as a stage coach. 8. Automobile as a vehicle. 9. Automobile as a carriage. 10 Automobile as a pleasure carriage. 11. Automobile as a wagon. V 12. Automobile as an appurtenance. 13. Automobile as a tool or implement of trade. 14. E.xtrinsic evidence of meaning of terms. 15. Legislative definitions. 16. Traction engine as automobile. 17. Bicycle as a vehicle. 18. Motorcycle as a motor vehicle. 19. Motorcycle as a carriage. 20. Automobilist. 21. O^vner. 22. Riding and driving. 23. Automobible parts and accessories. 24. Highways. 25. Roads. 26. Streets. 27. Intersecting streets. Sec. 1. Automobile defined. The term automobile is the generic name which has been adopted by popular approval for all forms of self-propelling vehicles for use upon highways and streets for general freight and passenger service. This definition should not include such self-propelling machines as steam road rollers or traction engines designed for hauling loaded trucks or vans in trains. 2 The Law of Automobiles. nor such vehicles as require tracks for operation,^ but does in- clude motor trucks.^^ 1. " Automabile " defined. — ^The New International Encyclopedia, vol. II, pp. 271, 273. A hybrid adjective — substantive (from Greek auto, stem of autos, "self," and Latin mobilis, "mo\'able" ) , adopted as a generic term for self-pro- pelled vehicles adapted to run and be steered on common roads and to carry either articles or passengers other than exclusively for their own use or guid- ance. The word is quite commonly aib- breviated to "auto" simply; while a devotee of the new mode of locomotion is very frequently styled an "autoist." It is sometimes em.ployed also in its original adjective of "self -movable" to form self-explaining compounds, suoh as "automobile boat," and the like. Int. Motor Cyc, p. 37. Primarily the word means a vehi- cle designed mainly for transportation of persons on highways, equipped with an internal coomibustion, hydrocarbon vapor engine, which furnishes the mo- tive power and forms a structural por- tion of the vehicle. Secondarily, it is used as sjTionymous with "motor vehi- cle," denoting a vehicle moved by in- animate power of any description, gen-' erated or stored within it, and intended for the transportation of either goods or persons on common highways. Americana. Traction engine included under New Hampshire law. — Emerson Troy Granite Oo. v. Pearson, 74 N. H. 22, 64 Atl. 582. " An automobile is not a work of art, nor a machine about which there can be any very peculiar fancy or taste, but it is not a common, gross thing, like a road wagon or an ox cart." Walker v. Brout Bros. Automobile Co., 124 Mo. App. 628, 642, 102 S. W. 25. Automobilism. — The science which treats of automobiles and their struc- ture, operation and applications, and of other matters pertaining directly and indirectly thereto. Int. Motor Cyc, p. 45. Washing automobile — domestic use of water. — Water supplied and used by a. man for -Avasliing a motor car and for other purposes in connection there- with, the motor car being used by him for the purpose of his profession or the business of a physician and sur- geon, is water supplied for domestic purposes within the meaning of Eng- lish WatenAx>rks Law. Harrogate Cor- poration v. McKay, 2 L. Rep. K. B. Div. 1907. Automobiles as household effects. — (See HiUhouse v. United States, 152 Fed. 163, 81 0. O. A. 415. In this case a decision was rendered by the United States lOircuit Court of Appeals on January 14, 1909, holding that Ameri- can owners of foreign touring cars re- turning to this country must pay duty upon their machines. The court's de- cision reverses the judgment of the lower courts and the action of the gen- eral appraisers. It was rendered in a case involving the importation of an automobile which had been repaired abroad. The practice had been to ad- mit the automobiles of returning tour- ists free of duty as household effects. The decision held that an automobile is not a household effect within the meaning of the law, and that for so much of the machine as was a new' manufacture and had been used abroad for the period required duty should be exacted, but not so much as had been used for the requisite time. It was held in a latter case in the same court that it would be an unreasonable ex- tension of the proposition here stated to hold that importations dutiable at some particular rate as completed ar- ticles may be constructively separated Definitioins and General Considerations. 3 The iixeaning of the word automobile is, containing means of propulsion within itself; self-propelling; as automobile oar — an automobile vehicle or mechanism.^ The automobile has been said to mean, "All motor traction vehicles capable of being propelled on ordinary roads. Specifically horseless car- riages."^ And it has been defined as ''a vehicle for the car- riage of passengers or freight propelled by its own motor." * In one case, the court speaks of motors and automobiles as the only words which represent the fashionable locomotives of the day.^ The term ''motor vehicles" is sufficiently comprehen- sive to include automobiles,^ even Fords.'' Sec. 2. Auto. The term *'auto" is an ajbbreviation of the word automo- bile, used as a prefix with the meaning of self-moving, self- propelling; as an autocar, an autocarriage, an autotruck, an automobile car, carriage, truck, etc.,^ and is one which is fre- quently used in referring to such vehicles. for duty purposes into parts subject to different classifications. So when an importer imports incomplete cars and tires separately by the same vessel and entered at the custom house at the same time, the parts are dutiable as a whole and not as separate entities. United States V. Auto Import Co., 168 Fed. 242, 93 C. C. A. 456. And in another later case, under this same section 504. it is decided that by the use of the •words "similar household effects" after the words "books, libraries, usual and reasonable furniture," Congress in- tended to do away with the exemption of household effects generally and to restrict it to such as should be like books, libraries, or household furniture and that automobiles cannot be said to be similar to either of these. United States V. Grace & Co., 166 Fed. 748, 92 C. C. A. 536. la Bethlehem Motors Corp. v. Flynt, 178 N. C. 399, 100 S. E. 693. 2. Means of propulsion within itself. —Web. Int. Diet., Supp., p. 19. The term means '•self-propelling; self-moving; applied especially to motor vehicles, such as carriages and cycles of those types usually or for- merly propelled by horses or men. An autocar or horseless carriage." Stand- ard Diet. Addenda. 3. See English's Law Diet., p. 78. This definition was approved in Dio- cese of Trenton v. Toman, 74 N. J. Eq. 70(2, 70 Atl. 606. 4. Bouvier's Law Diet. (Ed. 1914), p. 294. 5. Aerators Limited v. Tollit, 86 L. T. (N. S.) (Eng.) 651, 50 W. R. 584, 71 L. J. Oh. 727, (1902) 2 Oh. 319. 6. People V. Surace (111.), 129 N. E. 504; Schier v. State, 96 Ohio. 245, 117 X. K. 229. 7. People V. Falkovitch. 280 111. 321. 117 N. E. 398. 8. Web. Int. Diet.. Supp., p. 19. Auto truck. — It is said that an auto truck is a self-propelling or self-mov- ing truck adapted for hea\y grades. Standard Diet. Addenda. The term 4 The Law of Automobiles. Sec. 3. Car. The term "car" is a common and popular expression desig- nating the automobile, and when used in connection with other words of a written instrument, for example, which make it apparent what is referred to, there can be no question as to the interpretation. This frequent and generally accepted use of the word has made its application to the automobile correct and the courts are bound to take judicial notice of the custom. The terms ''machine" and "motor car" are also frequently heard.^ Sec. 4. Motor and motoring. The term "motor" is commonly used to designate the auto- mobile as a whole, and the word "motoring" is also in com- mon use as meaning operating or driving a motor vehicle. However, unless the contrary appears, the term "motor" may have a more limited application. Thus this word used in a statute empowering street railways, with the consent of the municipal authorities, to use electric or chemical motors as a propelling power of their cars, has been construed to mean the motion-producing contrivance of the car, and not to em- brace the entire car, though the word is sometimes loosely used to designate a whole car.^"* Sec. 5. Joy riding. "When two or more persons voluntarily drive or ride an automobile upon a public highway at a dangerously high rate of speed merely for the purpose of enjoying the exhilarating is more accurately applied to automo- 10. State v. Inhabitants of City of biles used for commercial purposes and Trenton, 54 K. J. Law (25 Vroom) 92, the hauling of heavy loads, and is one 33 Atl. 381. whioh is frequently used in referring The word " motor " means a machine to such vehicles. for transforming natural energy in 9. Car. — A general term for a vehicle various forms into mechanical work, of a type which, when horse drawn, is the term in the modern sense embrac- called a "carrage." Int. Motor Cyc, ing windmills, wat«r-wheels, and tur- p 97 bines, steam engines, and steam tur- An autocar may be said to be an bines, the various kinds of gas engines, automobile vehicle especially for street comipressed-air motors, petroleum mo- travel. Standard Diet. Addenda. tors, electric motors, etc. Steam, y>^t Definitions and General Considerations. 5 • and pleasurable sensations incident to the swirl and dash of rapid transit, they may properly be said to be engaged in joy riding. Such joy riders not only assume the risks of danger attendant upon the sudden and violent movements of the car, but also such as arise from the inability of the driver, when traveling at a high rate of speed, to make short quick stops to avoid collisions, or defects in the street, or direct the car at bends or curves in the road so as to keep in the traveled way."" Sec. 6. Automobile line. ''Automobile line," ''stage line," "railroad line" are ex- pressions which are ordinarily understood to mean a regular line of vehicles for public use operated between distant points, or between different cities, and have been construed as not including hacks, stages, and automobiles which merely operate from point to point in one city for the transportation of the public.^^ The term "automobile line," however, owing to the fact of the introduction of the "jitney" service in many cities, for the carriage of passengers over certain designated routes and be- tween specified points within municipal limits may, it would seem, be properly used in such cases. Sec. 7. Automobile as a stage coach. An automobile used in the place of a stage coach for the car- riage of mails, freight or passengers, has been held to be a "stage coach" within the meaning of a statute regulating toll roads and prescribing the rates of toll to be charged for the use of turnpikes by "vehicles," "pleasure carriages or hackney coaches," "stage coaches" and "traction or other engines." It is immaterial that the automobile was unknown air, gas, and petroleum motors together an automobile (Webster Int. Diet, constitute the group of thermic motors, Snpp. ). because in all of them the source of 11. Winston's Adm'r v. City of energy is heat. The Encyclopedia Henderson, 179 Ky. 220, 200 S. W. Americana, vol. X. 330. An antomotor is a self-propelled ma- 12. Commonwealth v. Walton, 31 Ky. chine (Standard Diet. Addenda), and L. Rep. 916, 104 S. W. 323. 6 The Law of Automobiles. at the time of the passage of the act as it is not the model or name of the vehicles but the purpose for which it is used which fixes the toll charge." Sec. 8. Automobile as a vehicle. A vehicle may be defined as "a carriage moving on land, either on wheels or runners ; a conveyance ; that which is used as an instrument of conveyance or communication. ' ' An auto- mobile is clearly a ''vehicle" as so defined." The term "vehicle" is expressly defined in some statutory enactments so as to include motor vehicles.^^ Thus, it has been held that an ordinance requiring the licensing of any "hackney coach, cab or other vehicle for the conveyance of passengers, for hire from place to place within the limits of the city" ap- plied to taxicabs engaged in the business of conveying pas- sengers for hire, it being the business of public conveyance in "vehicles" that was subject to the supervision of the city, without regard to the motive power used in propelling the vehicle.i^ Similarly it has been held that an automobile was 13. Burton v. Monticello and Burn- side Turnpike Co., 16Z Ky. 787, 173 S. W. 144. 14. Alabama. — See Davis v. Pet- rinovich, 112 Ala. 654, 21 So. 344, 36 L. R. A. 615; Mills v. Court of Com'rs, 85 iSo. 564. District of Columbia. — Grassenheimer V. District of Columbia, 26 App. Cas. (D. C.) 557; compare Washington Electric Vehicle Transfer Co., 19 App. Cas. (D. C.) 462. lotixi. — Lames v. Armstrong, 162 Iowa, 327, 144 N. W. 1, 49 L. R. A. (N. S.) 691n. Kentucky. — City of Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199. Massaeh'uaetta. — Foster v. Curtis, 213 Mass. 79, 99 N. E. 961, Ann. Cas. 1913 E. 1116. The automobile is a vehicle in com- mon use for transporting both persons and merchandise upon the public ways, and its use is regulated by statute. Baker v. City of Fall River, 187 Mass. 53, 72 N". E. 336. Automobile is a vehicle. — An automo- bile is a '"vehicle" witiiin the meaning of a statute using that term. Gassen- heimer v. Dist. of Columbia, 26 App. Cas. (D. C.) 557. But see Washing- ton Electric Vehicle Transfer Co. v. Dist. of Columbia, 19 App. Cas, (D. C.) 462. 15. iSterling v. Bowling Green, 5 O. C. (N. S.) 217, 16 Cir. Dec. 581. See also, Gen. Stat. Conn. 1902, see. 2038. 16. State v. Dunklee. 76 N. H. 439, 84 Atl. 40, Ann. Cas. 1915 B. 754. The court said, per Walker, J.: "The validity of the ordinance as applied to the business of transporting passengers in oabs or hackney coaches is not ques- tioned, nor is it contended that the use of taxicabs as a public means of con- \cyance does not require for practical purposes the same super^-ision or r^u- lation by the city as the use of Lacks Definitions and General Considerations. 7 included in the application of a statute providing that : * ' The driver of a carriage or other vehicle traveling in the same direction shall drive to the left of the middle of the travelled part of a bridge or way." ^"^ x\nd an exemption law covering a "vehicle" has been deemed to include an automobile.^^ But exemption laws applying to vehicles which may be drawn by one or two horses, do not include motor vehicles. ^^ Sec. 9. Automobile as a carriag-e. Plainly, an automobile is within the meaning of the term "carriage," and it is so held by the courts under some circum- stances. -'' Hence, in construing a covenant in a deed reserving a strip of land for a carriageway, it has been held that an in the same business. The evident pur- pose of the ordinance, which was en- acted in 1894 by virtue of authority granted to the city by section 10, c. 50, Public Statutes, was to regulate ami supervise the business of public car- riers of passengers upon the streets of the city, for the convenience and safety of the public. The license is required when one engages in that business, an' V. State (Okla.), 175 Pac. 226; Hart v. McClellan (Iowa), 174 N. W. Cooper V. State ex rel. Hardy (Okla.), 691. 175 Pac. 551; Crossland v. State 34. "Judges have the general cog- (Okla.), 176 Pac. 944; First Nat. Bank nizance of other jMiople as to the terms of Roff V. State (Okla.), 178 Pac. 670. relating to the use of automobiles." And see section 941. Chamberlayne's Modern T^w of Evi- 32. See U. S. v. Mincey (C. C. A.), denco, sec. 775. 254 Fed. 287, 5 A. L. R. 211; Bern- Definitions and General Considerations. 11 to designate the automobile, in many of the States the terms "motor vehicle," "automobile," "motor car," and "motor cycle," have been expressly defined by the legislatures. Thus it is commonly provided that the term "motor vehicle" shall include all vehicles propelled by any power other than mus- cular, except road rollers, fire engines, traction engines, and such vehicles as rmi only upon rails or tracks. Cars of elec- tric and steam railways are specifically excepted from the operation of the statutes and so are bicycles, tricycles, or such other vehicles propelled exclusively, or in part, by muscular pedal power. The term ' ' motor vehicle ' ' as used in legislation means motor vehicles having more than two wheels ordinarily. Automobile fire engines and such self-propelling vehicles as are used neither for the conveyance of persons for hire, pleasure, or business, nor for the transportation of freight are excepted from the provisions of some of the enactments. The term "machine" is also sometimes used in connection with other words to designate the automobile.^ The expression "motor car" in the English Motor Car Act of 1903, means the same as the expression "light locomotive" in the principal act as amended by the 1903 act, except that, for the purpose of the provisions of the law of 1903 with re- spect to the registration of motor cars, the term "motor car" does not include a vehicle drawn by an automobile.^^ Sec. 16. Tra,ction engine as automobile. A traction engine has been held to be an automobile within the meaning and construction of an automobile law providing that the terms "automobile" and "motor cycle" shall include all vehicles propelled by other than muscular power, except railroad and railway cars and motor vehicles running only 35. Machine. — An assemblage of in- in ■which such point tends to move i« ter-related movable parts, forming an the "direction of the power;" the re- appliance for transmitting and modi- distance to be overcome, the "weight;" fjing forces and the motion produced and that part of the machine immedi- by them. A force employed to move ately applied to the resistance, the a machine is a "motor." The moving "working point." Int. Motor Cyc. p. force in a machine is called the 895. "powder." The place of its appliance 36. See sec. 20, subd. (1). Eng. is the "point of application:" the lino Motor Oar Act 1903. 12 The Law of Automobiles. lipoli rails of tracks and road rollers.'' Traction engines are iisualty excluded from the definitions of the terms "automo- bile" and "motor vehicle," but in the act referred to this was apparently overlooked. Sec. 17. Bicycle as a vehicle. The term "vehicle," as used in a statute, is generally con- strued to include a bicycle,^^ but a bicycle is not generally to be classed as a "motor vehicle." ^^^ Sec. 18. Motorcycle as a motor vehicle. If a bicycle is considered a ' ' vehicle, " "^ a motorcycle should be considered a "motor vehicle." And the courts take this view.*^ Thus, it has been held that a "motor cycle" is a "vehicle of like character" with an automobile as that term 37. Emerson Troy Granite Co. v. Pearson, 74 X. H. 32, 64 Atl. 582. 38. Alabama. — ^Davis v. Petrinovich, 112 Ala. 564, 21 So. 344, 36 L. E. A. 615. Indiana. — Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 134, 3 L. R. A. 221. 10 Am. St. Rep. 76 ; Holland v. Bartch, 120 Incrger v. McFerren, 149 111. App. 630. 14 The Law of Automobiles. ing of the Customs and Inland Revenue Act of 1888, as being a carriage dra^\m or propelled upon a road by mechanical power."' But it has been held that a bicycle is not a "car- riage" within the meaning of a state statute requiring high- ways to be kept reasonably safe for "carriages."^* Sec. 20. Automobilist. An automobilist may be said to be one who rides in, or drives an automobile,"^ and may include either an owner, licensee, chauffeur or driver, provided he is familiar with the operation of a car. Sec. 21. Owner. The word "owner" is defined as "The person in whom is vested the ownership, dominion, or title of property : proprie- tor :" ""^ "He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases,— even to spoil or destroy it, as far as the law permits unless he be prevented by some agreement or covenant which restrains his right." "' These definitions may be said to state in a general way the meaning of the word owner. The question, however, arises whether one who has purchased property mider a conditional sale agreement by which title is reserved in the seller may be said to he the owner. In two cases in Canada — in which this question was considered it was held that the purchaser was the owner mthin the meaning of a statute respecting the lia- bility of the "owner" of an automobile for personal injuries sustained by the mismanagement of the car while under his control."^ In the Appellate Court it was said, "The word 43. O'Donoglme v. Moon, 90 Law T. ture and meclianisni of an automobile {N. S.) 843, 68 J. P. 349. and who is experienced in driving it. A bicycle may be considered a car- Int. Motor Cyc.„ p. 45. riage.— Taylor v. Goodwin, 4 Q. B. 2i28. 46. Black's Law Diet., 2d Ed., p. 44. Richardson v. Danvers, ■ 176 865. Mass. 413, 57 N, E. 688, 50 L. R. A. 47. Bouiver's La\y Diet. (Ed. 1914), 127, 79 Ann. St. Rep. 330. p. 2437. 45. AutomobUist. — Standard Diet. 48. Wynne v. Dalby, 16 Dom. Law Addenda. I^eP- ^^^' affirming Wynne v, Dalby, A person conversant with the struc- 13 Dom. Law Rep. 569, 29 Ont. Law Definitions and General Considerations. 15 'owner' is an elastic term, and the meaning which nmst be given to it in a statutory enactment depends very much upon the object the enactment is designed to serve." And in line with this the court below remarked: "The legislators in- tended to reach the person who, having the control and man- agement of the motor vehicle, and having an interest such as that of a bona fide purchaser, is concerned in securing a proper driver or operator, and who should, under the intention of the Act, be responsible for the acts of the person to whom, as servant, employee, or agent, he intrusts its operation. In the absence of an express interpretation of the word owner, and especially in view of what I take to be the object of passing sec. 19, of the Act, I can give no other meaning to the word than that in ordinary use and as defined above. If the legis- lators had intended it to have a wider or different meaning, they would no doubt have said so." In a recent case in Alabama it is also decided that the ex- pression "owners or custodians" does not extend to a mere servant or a person having only temporary control of an automobile under permission from the owner."^^ Under a statute making "the owner of a motor vehicle liable for any injury occasioned by the negligent operation by any person of such motor vehicle," the word "owner" has been held not to include a person who may be merely either mediately or immediately in possession of the vehicle but to refer to the real proprietor only.^'^ Sec. 22. Riding and driving. The words "ride" and "drive" are not confined to animals. They are not limited in any manner whatsoever. Anything Rep. 62, -t Ont. W. N. 1330. See also, this effect to be unconstitutional in that section 888, as to right of conditional it rendered the owner of an automo- vendee to maintain an action for in l>ile liable for negligent operation of juries to the machine. the car by any person who obtained 49. Armstrong v. Sellers, 182 Ala. possession of it without his consent 582 62 So. 28. a"^ without fault on his part such as ^ 50. Daugherty v. Tliomas, 174 Mich. mere trespassers and was therefore un- 371, 140 N. W. 615, Ann. Oas. 1915 constitutional as depri\-ing the o^^-ner A 1163, 45 L. R. A. (N. S.) 699n, of his property without due process of holdino 'the ].rovision of the law to la.w. See also, Mitchell v. Van Kenlen 16 The Law of Automobiles. capable of being ridden or driven comes within the purvie\\' of those terms. They are apt words in the case of bicycles, motor cycles or automobiles, when ridden or driven." Sec. 23. Automobile parts and accessories. Definitions of automobile iDarts and accessories may be of great importance in the construction and interpretation of contracts. What is and what is not included within the mean- ing of certain terms used by parties may be the subject of dispute. For example, an automobile body is ordered from a manufacturer or dealer; what is the purchaser entitled to re- ceive? Take also the purchase of an automobile. What goes with it for the price named? Are lamps, searchlights, tools, speedometer, clock, windshield, etc., to go with it, or are all or some of these articles to be treated as accessories and en- tailing extra expense? So far as lamps are concerned, it may be said that the automobile may be expected by the purchaser to be legally equipped for operation on the public highways, but this does not necessarily include extra searchlights. So also a horn or proper signal or warning device goes with the sale of an automobile without express mention. These may be said to come properly Avithin the meaning of the term auto- mobile or other word used in the contract of purchase. Chains, however, to prevent skidding, a speedometer and a clock, might not ordinarily be included. Custom and usage in the trade would control, of course, in the absence of express contractual provisions. Robes, goggles, clocks, speedometers, chains and similar accessories are not parts of an automobile, though quite necessary in the use of motor vehicles.^^ & Winchester Lumber Co., 175 Mioh. A gasolene engine is an internal com- 75, 140 N. W. 973. bustion engine in which the fuel used 51. State V. Smith, 29 R. I. 245, 69 is an inflammable vapor formed by a Atl. 1061; State v. Thurston, 28 R. I. mixture of gasolene and air. Int. 265, 66 Atl. 580. :Motor Cyc, pp. 177 and 178. 52. Engine.— A piece of meclianisni Carburetter. — An apparatus in which used to convert heat, or some other is effected the mixing of the fuel nec- form of energy, into mechanical work; essary for the operation of internal in other words, a machine for the de- combustion motors. Int. Motor Cyc-; velopment of power from some source p. 98. of energy, such as coal, gas, oil, etc. Chassis.— As applied to a motor car, Definitions and General Considerations. 17 Sec. 24. Highways. Ways are either public or private. A way open to all people is a public highway. It will be noted that all the automobile regulations apply only when an automobile is operated on public avenues of travel. To drive a motor vehicle on a pri- vate way, it is not necessary to register the machine, nor need any specific statutory speed limit be complied with. The term highway is the generic name for all kinds of public ways, in- cluding county and township roads, streets and alleys, turn- pikes and plank roads, railroads and tramways, bridges and ferries, canals and navigable rivers. Every public thorough- fare is a highway .^^ Thus, in one case, it was said: "It is not the amount of travel upon a highway which distinguishes it as a public instead of a private road. A private road might have the larger amount. It is the right to travel upon it by all the world, and not the exercise of the right which makes the term "ohassis" means the rect- angular metal framework thereof, as distinguished from its body and seats, but including its accessories for pro- pulsion, as the tanks, motor, generator, gear, springs, axles, wheels, tiros, fan, and general running gear. Kansas City Auto School Co. v. Holcker, etc., Mfg. Co. (Mo. Ajpp.), 182 S. W. 759. The frame is that part of a motor ve- hicle which supports the carriage body, motor, and transmission, and to which, beneath, are attached tlie wheel axles. Int. Motor Cyc, p. 197. Transmission-gear. — The gearing through which the power from the motor in an automobile is transmitted to the roar axle. Int. Motor Cj'c, p. 477. Automobile engine not a brake.— Wilmott V. Southwell. L. T. Rep., vol. XXV, No. 2, p. 22, Oct. 27, 1908. 53. Schier v. State, 96 Ohio, 245, 117 N. E. 229; Elliott on Roads and Streets (3d Ed.), pp. 1, 2. For other definitions of highway, see the following cases: .4r/>n«,sa«. — 'Arkansas River Packet Co. V. Sorrels, 50 Ark. 460, 8 S. W. C83. Connecticut. — 'Laufer v. Bridgeport Traction Co., 68 Conn. 475, 37 Atl. 379, 37 L. R. A. 533. Georgia. — Hines v. Wilson (Ga. App.), 102 E. 646. Indiayia. — Wild v. Deig, 43 Ind. 455, 13 Am. Rep. 399. Massachusetts. — Commonwealth v. Inhabitants of Newbury, 3 Pick. 51. Minnesota. — Northwestern Tele- phone Exch. Oo. V. Minneapolis, 81 Minn. 140, 86 N. W. 69, 53 L. R. A. 17. Missouri. — Jenkins v. Chicago & A. R. Co., 27 Mo. App. 578. North Carolina. — State v. Cowan, 29 N. C. 239. Oklahoma. — Southern Kansas Rail- way Co. V. Oklahoma City, 12 Okla. 82, 69 Pac. 1050. South Carolina. — Heyward v. Chis- olm, 11 Rich. L. 253. Wisconsin. — Town of Randall v. Rovelstad, 105 Wis. 410, SI N. W. 819. Canada.— mdeout v. Hewlett, 12 E. L. R. 527. 18 The Law of Automobiles. it a public highway."^* The term, "public highway," while it may be construed in a limited isense as meaning a way for general travel which is wholly public, yet in a general and broader sense it may be construed as including toll roads, since in this sense it includes every common way for travel by per- sons on foot or in vehicles rightfully used on highways, which the public have the right to use either conditionally or uncon- ditionally, and in construing this term it is decided that as used in a general law it should be regarded as having been used by the legislature in its general sense unless there is some efficient reason for believing it was used in the limited sense. So in one state it has been declared that a general law, regulating the operation of automobiles upon public high- ways in the interest of public safety rather suggests the use of the term in the general than the particular sense, since the danger of personal injury is quite as great and immunity therefrom is ciuite as important to travelers on the one as the other.^^ And ways originally laid out as public highways still retain their character as public highways though the park commis- sioners in any city or town where such ways exist have ac- quired or have been vested with jurisdiction and control over them. So in Massachusetts it was decided that Commonwealth Avenue in the Brighton district in Boston was a public high- way within the meaning of the words as used in an order of the Massachusetts highway commission requiring an automo- bile operated on a public highway to display its registered Destruction of sign posts. — Wilfully In a particular statute, the expres- dftfacing, injuring, or destroying any sion "public highway of this state," mile post, index board, sign post, may be construed as meaning a public bridge, or causeway constitutes a mis- road outside of a city. Oity of Wind- demeanor, even though the sign or sor v. Bast (Mo. App.), 199 S. W. 722. post, as the case may be, was erected 54. Matter of Mayor of New York, by private individuals. Pullman v. 135 N. Y. 253, 260, 31 N. E. 1033, 31 State, 88 Ala. 190, 7 So. 148. Am. St. Rep. 825. A bridge may be a public highway. 55. Weirich v. State, 140 Wis. 98, City of Baraboo v. Dwyer, 166 Wis. 121 N. W. 652, 22 L. R. A. (N. S.) 373, 165 N. W. 297. 1221, 17 Ann. C^s. 802. See also, A schoolyard is not a highway. Coll- Scranton v. Laurel Run Turnpike Co., yer v. MoAuley (Canada), 46 D. L, R. 225 Pa. St. 82, 73 Atl. 1063. 140. Definitions and General Considerations. 19 number thereon in a certain manner.^ Under a statute giving redress to one injured by the negligent operation of an auto- mobile upon or across ''public highways, walks, streets, ave- nues, alleys, or places much used for travel, "^^ the phrase "places much used for travel" is to be construed as covering all other places which might not be covered by the specific words employed, and where a driveway was constantly used both by vehicles and pedestrians, there was held to be no error in requiring the jury to find that it was a public highway gen- erally used for public travel, it not being necessary for them to find that it was much used for that purpose.^ Sec. 25. Roads. A road is a passage ground appropriated to public travel. The word "road" cannot, however, be said to be one of uni- form meaning ; it has been variously defined, and is often en- larged or restricted by the language with which it is asso- ciated. The meaning of the word in statutes is ascertainable from the context and purpose of the particular legislative en- actment in which it is found.^^ Sec. 26. Streets. A street is a road or public way in a city, town, or village. A way over land set apart for public travel in a town or city is a street, no matter by what name it may be called; it is the purpose for which it is laid out and the use made of it that determines its character. As the way is common and free to 56. Conunonwealth v. Butler, 204 " and ia designed for the use of ve- Mass. 11, 90 N. E. 360, hides." 57. See Mo. Rev. St. 1909, § 8523. Pent roads.— The term "highway," 58. Hodges v. Ghambers, 171 Mo. in the Vermont Rev. St., sections 3178, App. 563, 154 S. W. 429. See also, 3179, relieving owners of land from the Denny v. Randall {Mo. App.), 202 S. duty of maintaining fences on the aides W. 602. of the highways, does not include pent 59. Elliott on Roads and Streets roads. Carpenter v. Oook, 67 Vt. 102, (3 Ed.), pp. 10. 11. 30 Atl. 998, 999; French v. Holt, 53 Roadway is defined in the ordinances Vt. 364; Wolcott v. Whitcomb, 40 Vt. for the city of New York as "that por- 40, 41; Bridgman v. Town of Hard- tion of any street which is included be- wick, 31 Atl. 33, 34, 67 Vt. 132. tween the curbs or curb-lines thereof Contra, see Town of Whitingham v. Bowen, 22 Vt. 317. 20 The Law of Automobiles. all people, it is a highway, and it is proper to affirm that all streets are highways, although not all highways are streets. Streets resemble, in many particulars, ordinary public roads, but there are, nevertheless, very important differences be- tween the two classes of public ways. The purpose for which they are established is primarily the same, that of public travel, but many uses may properly be made of streets which cannot rightfully be made of ordinary suburban roads. The rights of the public are much greater in streets than in the roads of the rural districts, and the methods of regulating their use, improvement, and repair are materially different. Where a statute uses the term street, and does so with refer- ence to a town or city, and there are no limiting or explana- tory words, it must be taken to mean a street in the true sense of the term. It is sometimes necessary to discriminate be- tween the genus highways and the species streets, but when the species is designated there seldom can be any difficulty in determining what class of public ways is intended, although it will not do to conclude, in all cases where the term high- ways is employed, that streets are included.'^" Under statutes regulating the operation of motor vehicles, the term ^'highways" has been construed as including ''streets" in incorporated villages and cities.^^ In many of the automobile acts passed by the various states, the terms public highways, ways, streets, and other terms pertaining to highwaj^s have been defined. 60. Elliott on Koads and Streets (3d used for public travel, and a public Ed.), pip. 21, et seq. highway cannot pass through a city or 61. Ware v. Lamar, 16 Ga. App. 560, town without running over a street. S5 S. E. 824; Forgy v. Rutledge, 167 When a puiblic highway reaches the Ky. 182, 180 S. W. 90; Burns v. Ken- corporate boundary of a city or town dall, 96 S. C. 385, 80 S. E. 621. and connects with a street thereof, in "In view of the language of the act, passing through the city or toivn, from we are of opinion that by the use of such point of connection, it becomes a the words 'public highway' the legis- street of the municipality and subject lature intended to include a street, to its authority, and continues a street where the public highway is spoken of and subject to such authority, until as being within the corporate limits of some other part of the coi-porate bound- a city or town. A public highway is ary of the city or town is reached, be- not necessarily a street, but a street is yond which it again becomes a public necessarily a public highway, because highway other than a street. It may Definitions and Genkrai. Considerations. 21 Sec. 27. Intersecting streets. A statute regulating the operating of motor vehicles at ''intersecting streets" has been construed to apply to the situation where one street enters into another, but does not cross it.*'^ A contrary conclusion, however, has been reached as to this question.^ But the passage of a path across a high- way and common does not make an intersection of highways.^* But the intersection of two municipal streets is an "intersec- tion of highways. " ''^ further be remurked that, whenever tlic words 'public liighway' appear in the act, they are immediately preceded by the word 'any,' the use of which is evi- dently to indicate that anii kind of a highway lawfully dedicated to public use, whether it be a state road, county road, street, or alley, is a 'public high- way' in the meaning- of the act." Fo^cr^• V. Rutledge, 167 Ky. 1S2, ISO S. W. 90. 62. Lawrence v. Goodwill (Cal. A;pp.), 186 Pac. 781; Buckey v. White (Md.), Ill Atl. 777; Wales v. Harper. 17 W. L. R. (Canada) 623. And see Manly V. Abernathy, 167 N. Car. 220. 83 S. E. 34.3, wherein it was said: "We are clearly of the opinion that the legislature intended to use the word in the sense of 'joining' or 'touching,' or cominjj; in contact with or 'entering into,' and did not intend that the word 'intersect' should (be so restricted in its meaning as not to protect [icdestrians and other persons using a public street, at a point or space where another street comes into it, although it does not cross it. We should therefore give the word its l)roadcr meaning, whicn will include all space made by tlie junc- tion of streets, where accidents are just as likely to occur, as where the two streets cross each other." 63. Sullivan v. Chauvenet (Mo.), 222 S. W. 750. 64. Aiken v. Atl. 330. 65. Moye v. 049, 93 S. E. Metcalf, 92 Vt. 57, 102 Reddick, 20 Ga. A pp. :r,6. 22 The Law of Automobiles. CHAPTER II. HISTORICAL. Section 28. Automobile vehicle of modern times. 29. Development of motor carriage. 30. Growth of law. 31. Law keeps up with improvement and progress. 32. Highways open to new uses. 33. Tendencies in legislation. 34. Tendencies in judicial decisions. Sec. 28. Automobile vehicle of modern times. The automobile is decidedly a vehicle of modern times. In 1899 there were but few automobiles in existence in the United States, while at the present time there are thousands of motor cars and the number is increasing from year to year. The modern automobile is a development of comparatively recent date, but its inception dates back to the early days of the steam engine. In 1680 Sir Isaac Newton proposed a steam carriage to be propelled by the reactive effect of a jet of steam issuing from a nozzle at the rear of the vehicle. In 1790 Nathan Read patented and constructed a model steam carriage in which two steam cylinders operated racks running in pinions on the driving shaft. In 1769-1770 Nicholas Joseph Cugnot, a Frenchman, built two steam carriages. The larger of these is still preserved in Paris, and was designed for the transporta- tion of artillery. Murdock, an assistant of James Watt, con- structed a model carriage operated by a grasshopper engine, and in 1786 Oliver Evans, of the United States, suggested the use of steam road wagons to the Lancaster Turnpike Com- pany of Maryland. In 1802 Richard Trevitluck built a steam carriage, which was exhibited in London, and which was driven ninety miles from Camborne, where it was built, to London. This carriage brings us to the notable period of steam-coach construction in England, which lasted until 1836. From this time we have experienced periods of development of the automobile until it is in its present shape.^ 1. New International Eneyelopedia, vol. II, pp. 271, 272. Historical. 23 Sec. 29. Development of motor cairiage. The successful displacement ol' animal jiower by mechanical devices is an old problem. The early records of achievement in this direction were so fragamentary and imperfect that the earliest conception of the idea is mysteriously hidden in the past. The application of the force of steam for propulsion on sea and land was anticii>ated by Roger Bacon when he wrote : ** We will be able to construct machines which will propel large ships with greater speed than a whole garrison of rowers, and which will need only one pilot to direct them ; we will l>e able to propel carriages mth incredible speed without the assist- ance of any animal; and we will be able to make machines which by means of wings will enable us to fly into the air like birds. " ^ Sec. 30. Growth of law. To study automobile legislation and the decisions of the courts concerning motor vehicles, one does not have to wad'e through centuries of musty reports, though such a process often is necessary in looking up a rule or principle of law applicable to the automobile or its operation on the public streets and highways. The legislative enactment and judicial decisions in the United States do not extend far back. In England, however, Parliament has for some time regulated the operation of steam carriages and the act passed in 1896 was the parent of the amendatory act passed in 1903, known as the ''Motor Car Act of 1903." In the United States in 1899 there were practically no cases decided concerning motor cars in the law reports, but from that time on until the present the increase of legislation and judicial decisions is very noticeable and marked; so that the conclusion is warranted that there has commenced a branch of the law which vdW de- vote much attention to the twentieth century conveyance.^ 2. Roger Bacon's writings. — The En- bile driving shows us that the regula- cyclepedia Americana, vol. I. tion of automobiling started with few 3. See Law Notes, vol. IX, No. 8, lestrietions, and has gradually in 147. creased, until there are now many and Critical legislative period. — The his- numerous regulations in various states. tory of legislation controlling automo- Wc have arrived at the point where 24 The Law of Automobiles. Sec. 31. Law keeps up with improvement and progress. **In all human activities the law keeps up with improve- ment and progress brought about by discovery and invention, and, in respect to highways, if the introduction of a new con- trivance 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 there must be a turn in tlie tide, cither in one way or the other, calling forth either an increase or a decrease in the control over the subject. Particularly unfortunate is it that at this critical period the industry and automobilists should be face to face with many ex- amples of reckless driving, disregard for the public safety, and a disposition of even automobilists themselves to in- cite the speed mania. The daily newspapers arc editorially advocating further restrictions. The railroads are devising means and ways of protecting automobilists against their own recklessness. The automobile associations have manifested a desire and overeagerness to stop reckless driving and to comply with the sipirit of the automobile laws. Meetings have been held between representatives of these organizations and county officials to devise ways and means for preventing disastrous and reckless driving. C^minittees of public safety have been appointed by certain cluibs and statements have been issued to the public asserting the position which the automobilists take against speeding. All this has had a tendency to some extent to restore confidence in the public; but actions s;peak louder than words. Nothing material has been accomplished, and to-day a more critical situation has never faced au- tomobiledom and the public. It is utterly impossible to legislate evil out of existence. Accidents can- not be prevented by laws, neither can evil conduct. Conduct may, to a more or less extent, be regulated by statu- tory control, if the penalties are severe enough to provoke respect in the minds of those who would disobey the law. Various men throughout the country have suggested ways and means for doing away with evils con- nected with automdbiling. Very com- prehensive laws have been enacted, notably the one in the State of New Jersey, which, it must be confessed, is as good a law as any for all concerned, with the exception, perhaps, of its revenue features. The courts have in one or two rare instances given a jail sentence to drivers who have been guilty of speeding under aggravating circumstances, but it must he noted that there has been no decrease in the evil. The time has com© for automobilists themselves to take active steps in or- der to protect automobiling. Instead of asking special favors, for more leni- ent regulations and for the privilege of holding illegal speed contests on the public highways, they should be spend- ing their time devising a method to re- gain the respect which they should have in the minds of the public, and to protect themselves against the evils which are now known to exist. Auto- mobilists should be just as eager to have a violator of the law prosecuted and punished as the public officials are, and it would seem that the proper, method to get at this is for automo- bilists themselves to maintain a prose; cuting department which will be en ergetie and actjtve. Historical. 25 contrivance is compatible with the general use and safety of the road." ^ Sec. 32. Highways open to new uses. When the highway is not restricted in its dedication to some particular mode or 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 in- convenience 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.' Sec. 33. Tendencies in legislation. The automobile legislation in the United States was origin- ally framed upon the theory of regulation, in so far as regis- tration requirements Avere concerned. In some of the States there has been a disposition to exact revenue from automo- bilists under the licensing power of the government. The revenue features of the automobile laws, so far as they inter- fere with the right of transit from State to State, are clearly 4. Indiana Springs Co. v. Brown, 165 28 L. R. A. 310; Carli v. Stillwater St. Ind. 465, 74 N. E. 615, 1 L. R. A. (K Ry. & Transfer Co., 28 .Minu. 373, 10 S.) 238, 6 Ann. Cas. 656. X. W. 205, 41 Arn. Rep. 290. 5. Illinois. — People v. Marshall Field .A'ew York. — Xason v. West, 31 Misc. & Co., 266 111. 609, 107 N. E. 864. 583, 65 N". Y. Supp. 651. Indiana. — Indiana Springs Co. v. Penn^sylvania. — Lockhart v. Craig St. Brown, 165 Ind. 465, 74 N. E. 615, 1 Ry, Co., 139 Pa. St. 419. 21 Atl. 26, 3 L. R. A. (N. S.) 238, 6 Ann. Cos. 656. Am. Eleo. Cas. 314. Mclntyre v. Ornor, 166 Ind. 57, 76 N. Any method of. travel may be E. 750, 4 L. R. A. (N. S.) 1130, 117 adoiptcd by iiulividual members of the Am. St. Rep. 359, 8 Ann. Cas. 1087. public which is an ordinary method of Maine. — Towhr v. ]Morse, 103 ile. locomotion or even an extraordinary 250, 69 Atl. 1044. method, if it is not of itself calculated Michigan. — Macomber v. Nichols, 34 to prevent a reasonably safe use of the Mich. 212, S2 Am, Rep. 522. streets by others. Chicago v. Banker, Minnesota. — Carter v. Xortluvestern 112 111. App. 94. Tel. Exeh.. GO Minn. 539. 63 N. W. Ill, 26 The Law of Automobiles. unauthorized, since the police powers of the States do not permit of such taxation.^ The New York motor vehicle law of 1904 has been widely copied throughout the Union. This statute has, however, proven to be inadequate and has since been amended. Effort has been made to persuade Congress to enact a Fed- eral automobile registration law on the theory that interstate travel for pleasure constitutes interstate commerce. This has failed. It is doubted that interstate automobile travel con- stitutes interstate commerce, but it is suggested that such a measure might be within the domain of Congress if framed upon the theory of protecting the interstate commerce actually carried on over interstate highways. One of the developments in motor vehicle legislation has been the appearance of a movement to have enacted uniform automobile laws in the various States. Such lawis would greatly facilitate interstate touring and commercial travel, but it seems hardly possible to have many States enact the same kind of a motor vehicle law since conditions are different in the different jurisdictions. Moreover, the registration or license fees adequate for one State would under certain con- ditions, due to the number of automobiles and the location of the State, be insufficient for another State. Precise uniformity in automobile legislation throughout the United States does not, however, at the present time seem reasonably probable. Sec. 34. Tendencies in judicial decisions. That the courts reflect public sentiment is well-known. This is as it should be, provided no- positive rule of law is warped or violated, since public sentiment is most always right However, the courts should not blind their eyes to reason, and, merely because there happens to be some local and tem- porary public agitation concerning the automobile due to an automobile collision, for example, manifest the slightest pre- judice against the automobilist. All the courts of the United States before whom the question as to whether the automo- bile is an agency dangerous per se, have emphatically held that 6. Orandall v. Nevada, 6 WaU. (U. S.) 35, 18 L. Ed. 745. Historical. 27 it is not per se dangerous. The Appellate Division of the Supreme Court of Neiv York has declared that the automobile is no more dangerous per se than a carriage. The sound judicial tendency has been to enlarge the motorist's rights consistent mth the safety of the public.^ 7, See sections 36, 37, as to dangerous iiatuip of automobile. 28 The Law of Automobiles. CHAPTER III. NATURE AND STATUS OF AUTOMOBILE. Section 35. Automobile not merely a machine. 36. Automobile as a dangerous machine. 37. Not dangerous per se. 38. Adverse judicial statements. 39. Status of automobilist. 40. Motive power as affecting status. 41. Comparison of automobiles and horse-drawn vehicles. 42. Advantages over animal-drawn vehicles. 43. Tendency to frighten horses. 44. Automobiles as carriers. 45. As a tool or implement of trade. • Sec. 35. Automobile not merely a machine. The automobile is something more than a mere machine. The mechanical part of the motor vehicle is only a substitute for animal power. Aside from its novel method of propulsion and guidance, the automobile is not substantially different from any other ordinary vehicle which travels on the public ways. However, it possesses many characteristics which take it out of the category of the older means of transportation, as will be seen later on. As has been said before, it is a carriage, and a vehicle, and not only is it a most efficient means of trans- portation, but it constitutes a most useful mode of road travel- ing either for pleasure or profit. It is hardly necessary to mention that an automobile is personal property, and the fact that it is property, affords to the owner the protection of con- stitutional provisions, both State and Federal, relating to taxation and interstate transit.^ 1. Not a machine merely. — See Baker very peculii> r fancy or ta§te, but it is V. City of Fall Eiver, 187 Mass. 53, 72 not a common, gross thing, like a road N. E. 336. M'agon or an ox cart." The decision in Not a work of art. — The nature of I his case had to do with the rights of an automobile was considered in the r. purchaser of an automobile, where case of Walker v. Grout Bros. Automo- the manufacturer agreed that the au- bile Co., 124 Mo. App. 628, 102 S. W. tomobile would be "satisfactory" to 25, and the court says: "An automo- Ihe purchaser. Tlie court held that in bile is not a work of art, nor a ma- case the purchaser is dissatisfied un- ohine about which there ca,n be any der such an agreement, the machine Nature and Status of Automobile. 29 Sec. 36. Automobile as a dangerous machine. It is believed to be a common opinion among many that the automobile constitutes a dangerous machine, and that the operation of the motor vehicle on the public thoroughfares is necessarily hazardous. This is a mistaken view. The motor carriage is not to be classed with railroads, which, owing to their peculiar and dangerous character, are subject to legis- lation imposing many obligations on them which attach to no others. " Certainly a motor vehicle is not a machine of danger when controlled by an intelligent, prudent driver. The hazard in many cases to which the safety of the public may be exposed, results from the personal part played in motoring, rather than from the nature of the vehicle.^ So it is declared not to be an may be returned and the price re- covered back, no matter of the pur- cJiaser's dissatisfaction is unreasonable or groundless. The right of transit tlirough each State with every species of property known to the Ck)nstitution of the United States, and recognized by that paramount law, is secured by that in- strument to each citizen, and does not depend upon the uncertain and change- abla ground of mere comity. Ex parte Archy, 9 Cal. 147. The following cases are cited by the court: Lydia v. Ea.n- kin, 2 A. K. Marsh. (Ky.) 820; Wil- lard V. People, 4 Scam. (111.) 461; Julia V. McKinney, 3 Mo. 272. The principal case cit«d here is in line with the decision in Crandall v. Nevada, 6 Wall. (U. S.) 35, IS L. Ed. 745. The bearing which these decisions have on the right of the Federal government to regulate interstate automobile travel is of the utmost importance. Interstate transit can no more be taxed tlian in- terstate commerce. Replevin. — To maintain an action of replevin for an automobile, sole o^vn- ership in the plaintiff is not essential, because he may recover, though not the sole o^vner, as against a stranger hav- ing neither title nor right of posses- sion, if he has an interest and is en- titled to possession of the maehinc. Thus, in certain cases a tenant in com- mon may maintain an action in his cwn name to recover possession of per- sonal property from a stranger, in the absence of special circumstances going to show the necessity of any other party plaintiff. Swenson v. Wells, 140 Wis. 316, 122 N. W. 724. 2. Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 125 Am. St. Rep. 915, 14 L. R. A. (X. S.)-216. See also Baldwin on American Railroad I>aw, p. 217. And see sections 414, 624. Text criticized. — In Southern Cotton Oil Co. V. Anderson (Fla.), 86 So. 629, the statement in the text was severely criticized. It is sufficient rebuttal to state that the conclusion reached in that decision is contrary to the rule established by the courts of last re- sort in practically every other state. Automobile is not a nuisance.— Gas - kins V. Hancock, 156 X. C. 56. 72 X. E. SO. 3. Karpeles v. City Ice Delivery Co , 19S Ala. 552, 73 So. 642; I^ewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338. "While automobiles may not be classed 30 The Law of Automobiles. agency so dangerous as to render the owner liable for in- juries to travelers on the highway inflicted thereby while being driven by another, irrespective of the relation of master and servant or agency as between the driver and the owner." So in the case of an owner of an automobile for hire it is held that such a vehicle is not of itself so dangerous as to re- quire the owner, before entrusting another with its custody, to test and ascertain the competency and skill of the customer. When the car is not defective so as to render it incapable of control or a source of special danger a situation similar to that presented where a liver}- -stable keeper who wilfully lets for hire an animal he knoAvs to be vicious and dangerous, does as per se dangerous instrumentalities, yet because of their speed and weight they may suddenly become exceedingly dangerous by negligent or ineflScient use." Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975. Motor car is not an outlaw. — Mar- shall V. Gowans, 20 Ont. W. R. 37, 42, 3 Ont. W. N. 69. 4. Alabama. — Parker v. Wilson, 179 Ala 361, 60 So. 150, 43 L. R. A. (N. S.) 87. Georgia. — Fielder v. Davison, 139 Ga. 509, 77 S. E. 618. Indiana. — Premier Motor Mfg. Co. t. Tilford, 61 Ind. App. 164, 111 N. E. 645; Martin v. Lilly, 188 Ind. 139, 121 N. E. 443. Kansas. — Zeeb v. Bahnmaier, 103 Kans. 599, 176 Pac. 326, 2 A. L. E. 883. Kentucky. — "The rule of law applic- able to the care and protection of dangerous instrumentalities does not apply. That rule requires the master to exercise a proper degree of care to guard, control and protect dangerous instrumentalities owned or operated by him and to respond in damages for an injury incurred by reason of the im- proper use of such an instrumentality by a servant though not then engaged in the performance of his duties. The inineiple on which liability is founded in such cases is the failure of the mas- ter properly to keep %vithin his control yuoh dangeix>us agencies. Manifestly, an automobile which becomes danger- ous only when negligently operated cannot properly be placed in the same category with locomotives, dynamite, and ferocious animals. Consequently the courts have generally rejected this ground of liability." Tyler v. Steph- an's Adm'r, 163 Ky. 770, 174 S. W. 790. Mississippi. — ^Woods v. Clements, 113 Miss. 720, 74 So. 422. Ifeic Jersey. — Brunhoelzl v. Brandes, 90 N. J. L. 31, 100 Atl. 163. New York. — iSchultz v. Marrison, 91 Misc. 248, 154 N. Y. Supp. 257. North Carolina. — 'Linville v. Nissen, 162 N. Car. 95, 77 S. E. 1096. Tennessee. — Core v. Resha, 204 S. W. 1149. Texas. — Allen v. Brand (Civ. App.), 168 S. W. 35. [JfaTi.— McFarlane v. Winters, 47 Utah, 598, 155 Pac. 437. Washington. — .Jones v. Hoge, 47 Wash. 663, 92 Pac 433, 125 Am. St. Rep. 915, 14 L. R. A. (N. S) 216; Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 120, 135 Pac. 821. And see section 623, et seq. Nature and Status of Automobile. 31 not exist. The situation rather is similar to that of one who hires a horse or team and the same rule of liability applies in the case of an injury caused by negligence either in the care or management of either instrumentality.^ It is evident, therefore, that it is generally the manner of driving the vehicle, and that alone, which threatens the safety of the public. The ability immediately to stop, its quick re- sponse to guidance, its unconfined sphere of action, would tend to make the automobile one of the least dangerous of conveyances.*' A different situation, however, is presented in 5. Neubrand v. Kraft, 169 Iowa, 444, 151 N. W. 455, 457, Judge Weaver said in this case: "It is next said that an automobile is of such char- acter that while perhaps, not per se a dangerous instrument, it may easily become such, and the owner is there- fore Ibound to the exercise of greater care than would be required were there less danger in its operation. There is more or less danger in the use of ve- hicles of any kind. The motor cycle, the bicycle, the stage coach, the ordin- ary carriage drawn by horses, all have their possibilities of peril, and there is room for difference of opinion con- cerning the various degrees of danger to be apprehended therefrom. The great body of those who use the vari- ous instrumentalities of travel are per- sons of ordinary prudence, while the incompetent or negligent is the excep- tion. The fact that here and there a driver carelessly or recklessly converts his vehicle into an engine of injury or destruction to others is not a sufficient reason for requiring the owner of such vehicles for hire to test and ascertain the competency and skill of every cus- tomer before intrusting him with the custody of a car. Nor is there any likeness, as counsel seems to think, be- tween this ease and that of the livery stable keeper who willfully lets for hire an animal he knows to be vicious or (lamjerous. If the car in this case was defective in some respect which rendered it incapable of control or made it a source of special danger, and defendants had allowed it to go out in that condition and thereby plaintiff had been injured, a very dif- ferent question would be presented. But so far as shown the car was in perfect condition, and the sole cause of plaintiff's injury was the carelessness or forgetfulness of Kraft who, in an emergency, threw a lever the . wrong way, thereby causing a sudden acceler- ation of speed instead of checking it as he intended. Had he been driving a hired team and in some way had heedlessly got the reins crossed in his hands, thereby running over and in- juring the plaintiff, counsel would hardly advise his client that the owner of the outfit was liable in damages for the hirer's negligence. The fact that the vehicle in this case happens to have been an auto car instead of a horse and buggy or a coach and four calls for the application of no differ- ent rule." 6. Mclntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087. See Yale Law Journal, Dec., 1905. " The danger of rapidly moving ma- chinery calls for the exercise of care on the part of its owner to avoid dam- age to persons lawfully near it. . . . 32 The Law of Automobiles. the case of an automobile which, by reason of some defect, is not thus subject to the control and guidance of the driver and of which defect he or the owner for whom he is acting in operating the machine has knowledge. So where a car was in such a condition that it ran at full speed, which it was im- possible to lessen or regulate, it was held that it was a danger- ous instrumentality when operated upon a highway which other parties were using.^ And an automobile with defective To the person injured, however, such machinery is suggestive of danger, and he must exercise remarkable care ac- cordingly. And disregard of such dinger ... is contributory negli- gence sufficient to bar recovery. 2 Jaggard on Torts, 862. 863. A motor car, like a carriage and pair, is in itself harmless enough; but if the caniage is driven in a crowded thoroughfare at the utmost speed that can be got out of the two horses, it becomes to all intents as c'angerous a vehicle, and as much an instrximent of terror, as a motor car would be when driven without any cont;ideration or regard for the safety of the persons in the thoroughfare. 'I'he gravamen of tlie indictmei.t against motorists as a class is that a large proportion of the individuals composing that class habitually drive their motor cars, whether intentionally or inadvertently, with a total disregard for the safety or comfort of other persons using the road. That such an evil exists and that active means should be t^ken J secure its immediate diminution suppression cannot l;e denied. llie proper adjustment of the respective rights of persons owning and traveling in motor cars and of persons lawfully using the highivays and public roads is the serious problem calling for solu- tion. These two sections of the public each have definite legal rights, thougli there seems to be as yet a very in- definite concej t'on of the nature of such rights. Tlie Justice of the Peace, vol. LXIX, No. o», p. 458. " A car with a defective brake is not such an immediately dangerous instru- ment as to render a railroad company liable to any one injured thereby, in the absence of contract or other rela- tion." 2 Jaggard on Torts, 859. A bicycle is in itself an innocent ve- hicle. It is entitled to the rights of tlie road (but not of the sidewalk) equally with a carriage or other ve- hicle; and, if it is going at such a rate of speed as to frighten horses, there is liaWlity on the part of t>e ri'er only when his want of care can ile shown. Carriages and other vehicles drawn by horsss become dangerous because of the motion given to them, and because cf the tendency of horses to run away an! otherwise do damage. 2 Jaggard on Torts, 8-59. No more dangerous than horse and carriage. — Cunningham v. Castle, 127 App Div. (N. Y.) 580, 111 N. Y. Suppl . '>^"^,/. yh fex&s Co. V. Veloz (Tex. Civ. iJ2 ^pp.), 162 S. W. 377, wherein it was '^said: "The mere fact that an auto- mobile is in a bad state of repair, cer- tainly does not render it a dangerous instrumentality, but this was not the case made by the petition. The peti- tion in addition to averring that the car was in a bad state of repair, averred that this condition rendered it unmanageable and uncontrollable and caused the same to run at a rapid and excessive rate of speed, and it occurs to us that a car in such a condition Nature and Status of Automobile. 33 wheels may be classed as a dangerous ins trimien tali ty/^ So, too, a heavy automobile driven by a small boy or a careless or incompetent driver may be a dangerous menace to other travelers.^ Sec. 37. Not dangler ous per se. That the courts have refused to stamp the automobile as an inherently dangerous machine, should be stated at the outset. To use legal phraseology, the motor vehicle is not considered in law as dangerous per se. The fact that it has been judicially established that the automobile is not inherently dangerous, is of the greatest importance to automobilists and the auto- mobile industry of the United States, since a limit has now been placed upon the character of motor vehicle legislation which may constitutionally be enacted. The Court of Appeals of Georgia ^^ says, concerning the dangerous character of automobiles: ''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 the automobile that is to be feared, but the ferocity of those who that its speed cannut be regulated and away when properly directed, but may its course controlled is one of the most do all of these Avhen managed by an dangerous instrumentalities that could inexperienced, incomp«tent, or reckless be placed upon the public highway. driver. When in the control of such This being the case made by the sec- a one it becomes an exceedingly de- ond count in the petition, we overrule structive agency as the daily toll of the first assignment." lives and the many injuries to persons 8. MacPherson v. Buic' ACotor Co., chronicled by the newspapers attest. 217 N. Y. 38:2, 111 N. E. lOt^^ert ^'irm- If the owner of such agency con.sent to ing 160 N". Y. A pp. Div. 35, 145 rts ' - turn it over to the control of an incom- Sxipp. 462. ho petent or reckless chauffeur he is not 9. Gardiner v. Soloman, 200 Ala. deprived of any legal right by holding 115, 75 So. 621; Daily v. Maxwell, him liahle for its negligent operation 153 Mo. App. 415, 133 S. W. 351; when in such control and a greater de- Schultz v. Marrison, 91 Misc. (X. Y.) gree of safety to the general public is 248, 154 N". Y. Supp. 257; Allen v. likely to follow.' Stapletou v. Inde- Brand (Tex. Civ. App.), 168 S. W. 35. pendent Brewing Co., 198 (Mich.) 170, "It is true that the automobile has be- 164 N. W. 520, L. R. A. lOlS A 916. come so perfected that it may not be .\nd see section 662. classed as a 'dangerous instrumental- 10. Lewis v. Amorous, 3 Ga. App. ity' when intelligently managed. It .")0, 59 S. E. 338. will not shy. balk, back up, or run 34 The Law of Automobiles. drive them. Until human agency interferes they are usually harmless. While by reason of the rate of pay allotted to the judges of this State, few, if any, have ever owned one of these machines, yet some of them have occasionally ridden in them, thereby acquiring some knowledge of them; and we have, therefore, found out that there are times when these machines not only lack ferocity, but assume such an indisposition to go that it taxes the limit 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." The Supreme Court of WasJiington^^ says, concerning the automobile's legal status: "We do not believe that the auto- mobile can be placed in the same category as locomotives, gun- powder, dynamite, and similarly dangerous machines and agencies. It is true that the operation of these machines is attended with some dangers not conunon to the use of ordinary vehicles, and Ave believe, and have already held, that those who operate these machines must be held to that degree of care Avhich is commensurate with the dangers naturally inci- dent to their use." The courts of the various States of the United States have been very free in discussing the motor car's position in the law, but the two cases above quoted are among the leading and most important of all the legal decisions concerning the automobile or its operation. Another leading case is that of Cunningham v. Castle, decided by the Appellate Division of the Supreme Court of New Yorh^ which held that the auto- mobile is not a dangerous device. It is an ordinary vehicle of pleasure and business. It is no more dangerous than a team of horses and a carriage, or a gun, or a sailboat, or a motor launch. And a similar view is expressed by the court in a later case in New Yorh}^ And in a case in Wisconsin it was held that an automobile is not inherently or per se a dangerous machine so as to ren- 11. Jones V. Hoge, 47 Wash. 663, 92 12. 127 App. Div. (N. Y.) 580, 111 Pac. 433, 14 L. R. A. (N. S.) 216, 125 N. Y. Suppl. 1057. Am. St. Rep. 915. 13. Vincent v. Seymour, 131 App. Div. (N. Y.) 200, 115 N. Y. Suppl. 600. Nature and Status of Automobile. 35 der its owner liable on that ground alone for injuries result- ing from its use." In this connection the court said: "We discover nothing in the construction, operation and use of the automobile requiring that it be placed in the category with the locomotive, ferocious animals, dynamite and «other dangerous contrivances and agencies. When properly handled and used automobiles are as readily and effectually regulated and con- trolled as other vehicles in common use, and when so used they are reasonably free from danger. The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles. It is well-known that the}'' are being devoted to and used for the purpose of traffic and as conveyances for the pleasure and convenience of all classes of person's and without menace to the safety of those using them or to others upon the same highway when they are operated with reason- able care. The defendant cannot, therefore, be held liable upon the ground that the automobile is a dangerous contriv- ance." And, in the case of Mclntyre v. Orner,^^ the Supreme Court of Indiana says: "There is nothing dangerous in the use of an automobile when managed by an intelligent and prudent driver. Its guidance, its speed, and its noise are all subject to quick and easy regulation, and under the control of a compe- tent and considerate manager it is as harmless, or may soon become as harmless, on the road, as other vehicles in common use. It is the manner of driving an automobile «n the high- way, too often indulged in hj thoughtless pleasure seekers and for the exploitation of a machine, that constitutes a menace to public safety." And in a case in New Hampshire it is said: "There is nothing inherently dangerous in an automobile, any more than about an axe. Both are harmless so long as no one at- tempts to use them, and both are likely to injure those who 14. Steffen v. McNaughton, 142 Wis. 15. 106 Ind. 57, 76 N. E. 7.50, 4 L. R. 49, 124 N. W. 1016, 26 L. E. A. (N. S.) A. (N. S.) 1130, 117 Am. St. Rep. 359, 382, 19 Ann. Cas. 1227. 8 Ann. Cas. 1087. 36 The Law of Automobiles. come in contact with them when they are used for the purpose for which they were intended. "^^ These views are also endorsed in other later decisions/^ so that the status of the automohile as a machine which is not dangerous per se may be regarded as settled. Sec. 38. Adverse judicial statements. Adverse judicial statements have sometimes been made by the courts when considering the dangerous nature of motor 16. Danforth v. Fisher, 75 N. H. Ill, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670. 17. Alabama.- — Parker v. Wilson, 179 Ala. 361, 60 So. 150, 42 L. R. A. (N. S.) 87; Karpeles v. City Ice Delivery Co., 198 Ala. iio, 73 So. 642. Florida. — Anderson v. Southern Cot- ton Oil Co., 73 Fla. 432, 74 So. 975. Georgia. — Fielder v. Davidson, 139 Ga. 509, 77 S. E. 618. Indiana. — "Automobiles are not to be regarded in the same category with locomotives, ferocious animals, dyna- mite, and other dangerous contrivances and agencies. ' ' Priemer Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, 111 X. E. 645. Iowa. — Landry v. Overson, 174 N. W. 255. Kentucky. — Tyler v. Stephen 's Adm'r, 163 Ky. 770, 174 S. W. 790. Michigan. — Hartley v. Miller, 165 Mich. 115, 130 N. W. 336, 33 L. R. A. (N. S.) 81; Brinkman V. Zuckerman, 192 Mich. 624, 159 N. W. 316; Stapleton v. Independent Brewing Co., 198 Mich. 170, 164 N. W. 520, L. R. A. 1918 A. 916. Mississippi. — Woods v. Clements, 113 Miss. 720, 74 So. 422. Missouri. — ' ' The automobile is not of itself a necessarily dangerous agency, like an animal ferae naturae, so that it cannot lawfully be driven on a highway, nor is it a Juggernaut, purposely con- structed to crush out the lives of men. but by reason of its great weight and power which it may be propelled it be- comes exceedingly dangerous to the lives and limbs of others on the high- ways and to the driver and occupants of the car, unless the highest care and caution is used by the driver," Jack- son V. Southwestern Bell Telep. Co., (Mo.) 219 S. W. 655. Neio Jersey. — Brunhoelzl v. Brandes, 90 N. J. L. 31, 100 Atl. 163. New YorTc. — Towers v. Errington, 78 Misc. 297, 138 N. Y. Suppl. 119. North Carolina. — Lineville v. Nissen, 162 N. C. 95, 77 S. E. 1096. Tennessee. — Core v. Resha, 204 S. W. 1149. Texas. — Texas Co. v. Veloz (Civ. App.), 162 S. W. 377; Allen v. Brand (Civ. App.), 186 S. W. 35. Washington.— ^' Am automobile is not necessarily a dangerous device. It is an ordinary vehicle of pleasure and business. It is no more dangerous per se than a team of horses and a carriage, or a gun, or a sailboat, or a motor launch. It is not to be classed with what are commonly called 'dangerous instrumentalities,' such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances or agencies. While more nearly ap- proximating a locomotive, the ordinary automobile differs materially therefrom. It is not an article or a machine of an inherently dangerous nature. Alone and of itself it will not move, explode, Nature and Status of Automobile. vehicles.^^ Thus, the Supreme Court of Illinois has held that 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, is capable of a high rate of speed, and produces a puffing noise when in motion. All this makes such a horseless vehicle a source of danger to pedestrians and per- sons traveling on the highway in vehicles drawn by horses.^' And the Supreme Judicial Court of Massachusetts has de- clared that automobiles are capable of being driven, and are apt to be driven, at such a 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.^'' So, too, in a case in Kentitcky it is said: ''An automobile is nearly as deadly as, and much more dangerous than, a street car or even a railroad car. These are propelled along fixed rails, and all that the traveling public has to do to be safe is to keep off the tracks ; but the automobile, with nearly as much weight and more rapidity, can be turned as easily as can an or do any iujuiy to any one." "Walters V. City of Seattle, 97 Wash. 657, 167 Pac. 124. 18. McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; In- graham V. Storkamore, G3 Misc. (N. Y.) 114, 118 N. Y. Supp. 399; Moore v. Reddie, 103 Wash. 386, 174 Pac. 648. But see correction made by opinion on rehearing in Moore v. Roddic, 106 Wash. 548, 180 Pac. 879. See also Wil- liams V. Rapcr, 139 Ga. 811, 78 S. E. 253. 19. Christy v. Elliot, 216 111. 31, 1 L. R. A. (N. S.) 215, 74 N. E. 1035, 3 Ann. Cas. 487, 108 Am. St. Rep. 196. And see chapter XX as to frightening horses. 20. Commonwealth v. Boyd, 188 Mass. 79, 74 N. E. 255. In Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, the Supreme Judicial Court of Massachusetts, in holding that the regulation of the use of automobiles on particular roads, oven to their complete exclusion therefrom, is within the police power, with a view to the safety of the public, says: "Automobiles are vehicles of great speed and power whose appearance is frightful to most horses that are un- accustomed to them. The use of them introduces a new element of danger to ordinary travelers on the highways, as well as to those riding in the automo- biles. In order to protect the public great care should be exercised in the use of them. Statutory regulation of their speed while running on the highways are reasonable and proper for the pro- motion of the safety of the public. It is the duty of the legislature, in the ex- ercise of the police power, to consider the risks that arise from the use of in- ventions applying the forces of nature in previously unknown ways. The gen- eral principal is too familiar to need discussion. It has been applied to auto- mobiles in the different States with the approval of the courts." 38 The Law of Automobiles. individual, and for this reason is far more dangerous to the traveling public than either the street car or the railway- train. " 21 As a general proposition, however, the condemnation of the courts is directed to the careless driving of automobiles rather than to the machines themselves. But it may be forcibly argued that an automobile is more dangerous than a street car, because the latter travels on a fixed track and is thus more easily avoided by other travelers.^^ Likewise, it is proper to consider it more dangerous than other vehicles.^^* Thus, it was said in South Carolina, in discussing a statute which imposed a lien on automobiles for injuries occasioned thereby: "Motor vehicles are a new and comparatively a modern means of locomotion. They are unquestionably dan- gerous, and can and do destroy property, kill and maim people as much as locomotives and engines and cars on railroad tracks. The only difference being that railways are operated on tracks owned by them where no one else has the right as a matter of right to travel, and motor vehicles are operated on highways where the public generally has the right to travel. The railroads are generally able to respond in damages for any damages wilfully and negligently inflicted by them."^^ Sec. 39. Status of automobilist. How is the automobilist considered by the courts? it may- be asked. Is he to be looked upon invariably as a speed maniac'? A violator of the rights of the people on the public highways? After being convicted of speeding, a criminal? As between the inanimate chattel, the automobile, and the automobilist, the latter constitutes a more appropriate sub- ject of legal regulation. "It is the manner of driving an auto- mobile on the highway, too often indulged in by thoughtless pleasure seekers and for the exploitation of a machine, that 21. Weil V. Kreutzer, 134 Ky. 563, Cir. Ct. 531. 121 S. W. 471, 24 L. R. A. (N. S.) 557n. 22a. State v. Goldstone, (Minn.) 175 See also, CoUett v. Standard Oil Co., N. W. 892. 186 Ky. 142, 216 S. W. 356. 23. Merchants' & Planter's Bank v. 22. Chittenden v. Columbus, 26 Ohio Brigman, lO€ S. Car. 362, 91 S. E. 332. Nature and Status of Automobile. 39 constitutes a menace to public safety," says the Supreme Court of Indiana.^* ''Until human agency intervenes they are usually harmless," says the Court of Appeals of Georgia?-'^ So in a case in Canada it was said : "^^^lile it is quite true a motor is not an outlaw, it must also be borne in mind that the driver is not the lord of the highway, but a man in charge of a dangerous thing, and so called upon to exercise the greatest care in its operation."^® Sec. 40. Motive power as affecting status. There is no vehicle operated in the public streets and high- ways that bears much similarity to the automobile. The bicycle, it is true, occupies a unique position when compared with the older vehicles, but the motor carriage occupies a position and status of its own. The motor car's freedom of navigation, speed, control, power, purpose, and the existence or non-existence of noise in running necessarily stamps the automobile with a status different from that attached to other vehicles. Especially is this true in reference to the motive power and its application. In animal-drawn vehicles the power is from the front. The vehicle is drawn. In automo- biles the power is generally applied from the carriage, and the vehicle is in fact pushed along. Sec. 41. Comparison of automobiles and hprse-drawn vehicles. In Watts V. Stroudsburg Passenger Railway Company," the court compares automobiles and horse-drawn vehicles as follows: The use and operation of the ordinary vehicle drawn by a horse, or horses, has been known for so many years that every man is charged with knowledge as to the movement of such and the ordinary speed, and, therefore, a horse or horses and wagon happening to be on the track of an electric railway, the motomian on an electric car is bound by the knowledge of how fast the horse, or horses, can, or will, 24. Mclntyre v. Onier, 166 Ind. 57, 59 S. E. 340. 76 N. E. 750, 4 L. B. A. (N. S.) 1130, 26. Fisher v. Murphy, 20 Ont. W. R. 117 Am. St. Rep. 359, 8 Ann. Cas. 1087. 201, 3 Ont. W. X. 150. 25. Lewis v. Amorous, 3 Ga. App. 50, 27. 34 Penn. Co. Ct. Rep. 377. 40 The Law of Automobiles. ordinarily travel, and he must operate and control liis car with that fact taken into consideration. The movement of an automobile has no such certainty. The movement of the ordinary horse is from a slow walk to about two miles an hour to a trot or pace of probably from six to ten miles an hour, the latter speed very rarely, however, being reached Avhen a horse is traveling between the tracks of an electric railway company. The speed or movement of an automobile is any- where from a few miles an hour to anywhere between twelve and thirty or more miles an hour. It is within common ex- jperienee that they glide off and on tracks, run behind electric icars and then turn off the track, run around the cars and run on the track again and easily keep ahead of a car moving at an ordinary speed, when occasion requires, they easily move at a rate of speed Avhich the trolley does not often obtain. ■The ordinary man knows that it is not easy for a person to get out of an electric railway track with a horse and wagon, por can it be accomplished, ordinarily, quickly. The horse cannot move fast over the tracks, and the wheels of the wagon are apt to slide ; and it is also within the common knowledge ,of people living in communities where automobiles are used ,that they can easily turn in and out of electric railway tracks and do it quickly. Sec. 42. Advantages over animal-drawn vehicles. The advantages of the automobile over animal-drawn vehi- cles are too numerous to mention in a work of this nature. However, there are one or two advantageous points in the motor vehicle's favor which should be mentioned. We have seen that there is an alleged element of danger in the opera- tion of the horseless carriage. Aside from this, however, every other characteristic of the automobile is decidedly in its favor. It leaves no filth in the streets. It is the most sanitary .vehicle that travels on the public ways. There certainly can .never be any police regulation of the motor car's operation on account of filth, excepting the regulation of the emission of .smoke. Automobiles occupy less space on the streets and Jiighways than horse-drawn vehicles. The superiority of the Nature axd Status of Automobile. 41 automobile in these matters needs no further discussion to be convincing. Sec. 43. Tendency to frighten horses. That the automobile has a tendency to frighten horses un- accustomed to its appearance must be conceded. This has been one of the worst obstacles to motoring and driving, and has been the cause of much litigation. However, horses are fast being educated to the sight of the automobile, and when the horses generally are no longer frightened at its appear- ance the legislative regulation concerning the meeting of horses and automobiles on the road will be no longer needed and without reason. As said by the Supreme Court of Cali- fornia: "Of course, if the use of automobiles gradually be- comes more common, there may come a time when an ordinance like the one here in question [the ordinance prohibited motor- ing at night on country roads] would be unreasonable. As country horses are frequently driven into cities and towns, many of them mil gradually become accustomed to the sight of automobiles, and the danger of their use on country roads will be less." -^ In connection witli tliis subject it is of interest to note what has been said by the Appellate Division of the Supreme Court of New York: "Since the automobile has come into use upon our streets and highways these accidents [resulting from frightening horses] have been common, and actions to recover damages resulting therefrom have been frequent. These ma- chines may be used on the public highways, but horses will also continue to be used for a fime at least. Both may be equally used as 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 accident when horses become frightened. It is not pleasant to be obliged to slow down these rapid-running machines to accommodate j^^i'sons driving or riding slow country horses that do not readily become accustomed to the 28. Ex parte Berry, 147 Cal. 523, 82 Pac. 44. Antl pee (•liai)ter XX, as to the liability for frightening horses. 42 The Law of Automobiles. 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 under- stand, if this course is adopted and accident and injury re- sult, that the automobile owner may be called upon to respond in damages for such injuries. "^^ In another icase,^*^ the court, discussing 'the relative rights of automobilists and the drivers of horses, said: ''Being heavy, powerful, fast and noisy, motors cars, if carelessly handled are as terrifying as they are dangerous. A reasonably con- siderate person in the situation of defendant would have •anticipated the danger to the safety of the occupants of the •buggy in running his car headlong in such close proximity to •the horse. The possession of a i powerful and dangerous vehicle, instead of giving defendant any right of might, im- posed on him the duty 'of employing care commensurate to the •risk of danger to others endangered by the presence of his vehicle on the public thoroughfare. ' ' Sec. 44. Automobiles as carriers. An automobile may be used as a common carrier, a private ■carrier, or a personal private conveyance. Public motor vehicles, such as sight-seeing cars, taxicabs, and others Which are employed in carrying all persons applying for transpor- tation, come within the definition that a common carrier of passengers is one who undertakes for hire to carry all per- sons who may apply for passage.^^ A corporation authorized by its charter to carry passengers and goods by automobiles, taxicabs and other vehicles, but not to exercise any of the poVers of a public service corpora- tion, and which does such business, including the carrying of passengers to and from railroad teraiinals and hotels under contract therewith, and also does a garage business with indi- viduals, may be classed as a common carrier.^* 29. Murphy v. Wait, 102 N. Y. App. A. 798, 29 Am. St. Rep. &27. And see Div. 121, 92 N. Y. Suppl. 253. .sections 131-134. 30. Hall V. Compton, 130 Mo. App. 32. Terminal Taxicab Co. v. Kutz, 675, 108 S. W. 1122. 241 U. S. 252, 36 S. Ct. 583, modifying SI. Gillingham v. Ohio River R. Co., 43 App. D. C. 120. 35 W. Va. 588, 14 S. E. 243, 14 L. R. Nature and Status of Automobil?:. 43 But to constitute one a common carrier it is necessary that he should hold himself out as one. A carrier of passengers who undertakes to carry all persons who apply to him for transportation is engaged in a public employment, and is a public or common carrier of passengers. ''A common car- rier of passengers," says Judge Thompson, *'is one who un- dertakes for hire to carry all persons indefinitely who may apply for passage." In a case in Massachusetts where an action was brought to recover for an injury to one while a passenger of a sight-seeing automobile carrying about twenty- five persons, it appeared that the owner had a regular stand from which the automobile started and that the business was publicly advertised by the placing of tickets for the trips for Bale at different places in the city. As to the questions of the degree of care required and whether such owner was a com- mon carrier, the court said: "It is apparent that this busi- ness much more resembled a public than a private carriage of passengers, and whether, in a strictly technical sense, the defendant could be regarded as a conmion carrier of passen- gers or not, we are of opinion that she was bound to use rea- sonable care according to the nature of the contract, and that in view of the nature of the business and the peril to life and limb of the passengers likely to arise from an accident, this reasonable care should be defined as the highest degree of "Care consistent with the proper transaction of the business. ' ' ^ Sec. 45. As a tool or implement of trade. It has been thought that an automobile was not a ''tool" or ''implement of trade" within the meaning of laws exempting such articles from levy or attachment.^* But a contrary con- clusion has been reached in another State as to the exemption of an automobile as an "implement."'^ 33. HindB v. Steere, 209 Mass. 442, 85. Wickham v. Traders State Bank, 95 N. E. 844. 95 Kans. 657, 149 Pac. 433. See also 34. Eastern Mfg. Co. v. Thomas, 68 Wickham v. Traders State Bank, 96 S. Car. 509, 64 S. E. 401. Kans. 350, 150 Pac. 513. 44 The Law of Automobiles. CHAPTER IV. GENERAL RIGHT TO USE HIGHWAYS. Section 4G. General purposes of streets and highways. 47. New means of transportation. 48. Right of automobilist to use highways. 49. Equal rights of automobilists and otlier travelers. 50. No superior rights for automobilists. 51. Ferries and vessels, 52. Toll roads. 53. Exclusion of non-residents. 54. Automobile racing. 55. Setting aside highways for speed contests. Sec. 46. General purposes of streets and hig^hways. Primarily, the general purpose of streets and highways is that of travel, either on foot by a pedestrian or in a vehicle propelled by animal or other power. The members of the piiiblic have a right to use the public avenues for the purpose of travel and the transportation of property. It is improper to say that the driver of horses has rights in the road superior to the driver of an automobile. Both have the right to use the easement, and each is equally restricted in the exercise of his rights by the corresponding rights of the other.^ Public high- ways are intended for the use of travelers, and they are en- titled to use the same unobstructed in any unusual manner.^ So, it is said in a recent case in Illinois: , ''The customary or usual and ordinary use of a street is for travel from one point to another, both along and across it. The use of a street by an automobile when operated with due care and caution and not in violation of State or municipal police regulations, would be deemed a proper and lawful one."^ In this connection it may also be said that laws regulating the operation of motor vehicles upon the public highways generally contemplate the use of such highw^ays for any lawful purpose.* 1. Indiana Springs Co. v. Brown, 165 Ind. 5S5, 84 N. E. 145, 23 L. R. A. Ind. 465, 74 N. E. 615, G Ann. Cas. 656, (N. S.) 946. 1 L. R. A. (N. S.) 238. And see sec- 3. Jenkins v. Goodall, 183 111. App. tion 49, 633, 637. 2. Ft. Wayne Cooperage Co. v. Page 4. Fitzsimnions v. Snyder, 181 111. (Ind. App.), 82 N. E. 83, affirmed 170 App. 70. General Right to Use Highway. 45 Sec. 47. New means of transportation. That the purposes of the public ways contemplate new and improved means of transportation there can be no doubt. Travelers are not confined to horses and ordinary carriages. Animal or muscular power has no exclusive or superior rights on the piiblic avenues of travel. The use to which the public thoroughfare may be put comprehends all modern means of carrying, including the electric street railroad and the auto- mobile. Judge Cooley in 1876 said: "Persons nnaking use of horses as the means of travel by the highways have no rights therein superior to those a\Oio 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 ani- mals, but persons using them have no prescriptive rights, and are entitled to the same reasonable use of the ways Avhich they must accord to all others. Improved methods of locomo- tion are perfectly admissible, if any shall be discovered, and they cannot be excluded from the existing public roads, pro- vided their use is consistent with the present methods. . . . 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 Avill 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 in- convenience 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 wherever it is found that the general benefit requires them." ^ The Supreme Court of Illinois has expressed itself as follows : ' ' To say that a new mode of pas- sage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport 5. Macomber v. Nicholas, 34 Mich. conditions arising from the progress of 217, 22 Am. Rep. 522. invention and discovery. The ordinary "With respect to the methods of highway is open to all suitable methods travel and transportation on the high- of use." Towle v. Morse, 103 Me. 250, way, as in all other spheres of action, 68 Atl. 1044. the law seeks to adapt itself to the new 46 The Law of Automobiles. with the advancement and enlightenment of the present age. ' ' ^ And in a late case in the same State the court declares that : "Public rights do not depend upon the methods of travel recognized at the time the streets were opened or such public uses as have been sanctioned by long continued custom and acquiescence. The use of the streets must be extended to meet the new needs of locomotion." ^ Equivalent viewS have been stated in Minnesota, in the fol- lowing language : "If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this (highway) easement is expansive, developing, and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals ; and next a way for vehicles drawn by animals ; constituting respectively the iter, the actus, and the via of the Romans. And thus the methods of using the public highways expanded with the growth of civilization until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Hence it has become settled law that the public easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed. ' ' ^ And the same principle is announced by the Supreme Court of Indiana, which says: "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 made with inconvenience and even incidental injury to those using ordinary modes, there can be no recovery provided the contrivance is compatible with 6. Moses V. Pittsburgh, etc. R. Co., 21 v. Banker, 112 111. App. 64. 111. 515. 8. Cater v. Northwestern Telephone 7. People V. Field & Co., 266 111. 609, Exchange Co., 60 Minn. 539, 63 N. W. 618, 107 N. E. 864. See also, Chicago 111, 28 L. R. A. 310, 51 Am. Eep. 543. General Right to Use Highway, 47 the general use and safety of the road. It is, therefore, the adaptation and use, rather than the form or kind of contriv- ance, that concerns the courts." ^ In other jurisdictions, simi- lar views have been announced.^** 9. Indiana Springs Co. v. Bro\vii, 165 Ind. 465, 74 N. E. 615, 6 Ann. Gas. 656, 1 L. R. A. (N. S.) 238n. 10. "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 locomo- tion 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 pub- lic way for the use of the public in general for passage and traffic, without distinction." Patton-Worsham Drug Co. V. Dreenon, 104 Tex. 62, 133 S. W. 871. Automobiles are now recognized as legitimate means of conveyance on the public highway. The fact that horses unaccustomed to see them are likely to be frightened by their unusual sound and appearance has not been deemed sufficient reason for prohibiting their use, but it is an element in the question of due care on the part of the drivers of both horses and motor cars and a consideration to be entertained in determining whether such care has been exercised to avoid accident and injury in the exigencies of the particular situa- tion." Towle v. Morse, 103 Me. 250, 68 Atl. 1044. See also Birmingham Ry. L. & P. Co. V. Smyer, 181 Ala. 121, 132, 61 So. 354, wherein it was said : ' ' Lands once taken for, or dedicated as, public streets are taken for all time for the purpose of providing a means of passage common to all the people, and may be rightfully used in any way that will best serve this purpose. The public thus acquire the right of passage over every part of it, from side to side, and from end to end. They acquire the right to use it, not only by the means of vehicles then in use, but also by other means and vehicles which science and the improvement of the age may in- vent or discover, to meet the needs of the ever-increasing population, or which may become necessary or expedient, pro- vided such vehicles or modes do not ex- clude the proper use by other modes or kinds of vehicles. Any use of the street for public travel, which is within the limits of the public easement, whether it be by old or new methods, provided it does not tend to destroy the street as a means of passage and travel common to all, is lawful and permis- sible." The employment of an automobile on a highway as a means of transportation is a lawful use of the road; and if it results in injury to one traveling by an- other mode the driver of the machine cannot be held liable for the injury, un- less it be made to appear that he used the machine at a time or in a manner or under circumstances inconsistent with a proper regard for the rights of others. Mclntyre v. Orner, 166 Ind. 56, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 8 Ann. Cas. 1087. The easement of a highway embraces all travel not prohibited by law on foot, in carriages, omnibuses, stages, sleighs, or other vehicles, as the wants and habits of the public demand. The right of the public in the highway consists in the privilege of passage and such privi- leges as are annexed as incidents by usage or custom, as the right to make sewers and drains and lay gas and water pipes. It can hardly be questioned that 48 The Law of Automobiles. Sec. 48. Right of automobilist to use highways. Considering the automobile as merely a new means of transportation,^^ it is clear that, in the absence of peculiar regulations or unusual circumstances, an automobilist has a right to use the public highways for the propulsion of his machine, and numerous decisions sustain this right.^^ This right is subject to the general obligation of all travelers to exercise reasonable care to avoid injury to others, and to obey the primary and fundamental purpose of a public highway, street, or alley, is to accommodate the public travel, to afford citizens and strangers an oppor- tunity to pass and repass on foot or in vehicles with such movable property as they may have occasion to transport, and every man has a right to use on the road a conveyance of his own at will, subject to such proper regulation as may be prescribed by authority. The easement for public travel is not to be limited to the particular modes of travel in use at the time the easement was ac- quired, but extends to and includes all such new and improved methods of travel, the utility and general con- venience of which may be afterwards discovered or developed, as are in aid of the identical use for which the street was acquired. Carli v. Stillwater St. Ey. & Transfer Co., 10 N. W. 205, 28 Minn, 373, 41 Am. St. Rep. 290. 11. See section 47. 12. Arkansas. — Russ v. Strickland, 130 Ark. 406, 197 S. W. 709. Delaware. — Simeone v. Lindsay, 6 Penn. (Del.) 224, 63 Atl. 778; Brown V. City of Wilmington, 4 Boyee (Del.) 492, 90 Atl. 44. "A public highway is open in all its length and breadth to the reasonable, common and equal use of the people on foot or in vehicles. The owner of an automobile has the same right as the owners of other ve- hicles to use the highways, and like them he must exercise reasonable care and caution for the safety of others. A traveler on foot has the same right to the use of the public highways as an automobile or any other vehicle. On using such highway all persons are bound to the exercise of reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. Where one undertakes to pass an- other on the highway, going in the same direction, he must take reasonable care to exercise that right so as not to in- jure another, and would be liable for all consequences resulting from negli- gence on his part. It is the duty of a person operating an automobile . . . upon the public highway to use reason- able care in its operation, to move it at a rate of speed reasonable under the circumstances, and cause it to slow up or stop, if need be, when danger is im- minent, and could by the exercise of reasonable care be seen or known in time to avoid the accident. There is a like duty of exercising reasonable care on the part of the person traveling on foot. The person having the manage- ment of the automobile and the traveler on foot are required to use such reason- able care, circumspection, prudence and discretion as the circumstances require, an increase of care being required where there is increase of danger. 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 pru- dent persons would exercise under like circumstances. The more dangerous the General Right to Use of Highway. 49 all valid regulations governing the conduct of travelers.^^ But, it is not negligence as a matter of law to use an automobile on a public highway." The fact that motor vehicles may be novel and unusual in appearance, and for that reason are likely 'to frighten horses who are unaccustomed to see them, is no reason why the courts should adopt a view for the pro- hibition of such machines.^^ In the absence of statute a muni- 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." Simeone v. Lindsay, 6 Penn. (Del.) 224, 63 Atl. 778. Illinois.— Christy v. Elliott, 216 111. 31, 1 L. R. A. (N. S.) 124, 74 N. E. 1035, 3 Ann. Cas. 487. Indiana. — Brinkraan v. Pacholke, 41 Ind. App. 6G2, 84 N. E. 762 ; Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457. "It can no longer be questioned that the use of automobiles or motor ears, such as the one here in question, upon streets and other public highways, is lawful. Such vehicles furnish a con- venient and useful mode of travel and transportation not incompatible with the proper use of the highway by others; but in consequence of the great speed with which they may be run, their size and general appearance, the noises made in their use, the infrequency of their use in particular localities, and the circumstances of the particular oc- casions of their use, commensurate care, skill and diligence must be required of the person employing such means of transportation. The general rule ap- plies that he must so use his own as not to injure another. Automobiles may be used with safety to the other users of the highway, and in their proper use upon the highways their owners have equal rights with the users of other vehicles properly upon the highw^ay. " Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762. Kentucky. — Cumberland Telep. & Teleg. Co. v. Yeiser, 141 Ky. 15, 131 S. W. 1049, 31 L. R. A. (N. S.) 1137n. Maine. — "With respect to the meth- ods of travel and transportation on the highway, as in all other spheres of ac- tion, the law seeks to adapt itself to the new conditions arising from the progress of invention and discovery. The ordinary highway is open to all suitable methods of use." Towle v. Morse, 103 Me. 250, 68 Atl. 1044. Maryland. — Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. Missouri. — Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; White v. Metropolitan St. Ry. Co., 195 Mo. App. 310, 191 S. W. 1122. Pennsylvania. — Brown v. Chambers, 65 Pa. Super. Ct. 373. Texas. — Patton-Worsham Drug Co. v. Drennon, 104 Tex. 62, 133 S. W. 871. Wisconsin. — W^eber v. Swallow, 136 Wis. 46, 116 N. W. 844. 13. See section 277, et seq., as to obligation to exercise care. 14. Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 6 Ann. Cas. 656, 1 L. R. A. (N. S.) 238n; O'Don- nell v. O'Neil, 130 Mo. App. 360, 109 S. W. 815. 15. See chapter XX, as to liability for frightening horses. Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 616, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656, where it was said: "In all human activities the law keeps up with improvement and progress brought about by discovery and invention, and, in respect to high- ways, if the introduction of a new con- 50 The Law of Automobiles. cipality cannot forbid the use of heavy trucks, nor can it re- cover for the injuries caused to the roads by reason their use in a reasonable manner.^^^ In some States the right of cyclists and automobilists to use the highways is expressly affirmed by statutory enactments.^*^ To a considerable extent, how- ever, statutes and municipal ordinances may limit travel by motor vehicle along the highways. Thus, they may set aside certain streets or highways and forbid such travel on them, or they may limit motor vehicle traffic to certain hours of the daj'^. These questions are treated in other places in this work." Sec. 49. Equal rights of automobilists and other travelers. The general rule is that all travelers have equal and recipro- cal rights to the use of the public highways. That is, the right of an automobilist to run his machine along the high- ways is equal to that of other travelers,^^ whether such other trivance for transportation purposes, conducted with due care, is met with in- convenience 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 road. It is, therefore, the adaptation and use, rather than the form or kind of con- veyance, that concerns the courts. It is improper to say that the driver of the horse has rights in the road superior to the driver of the automobile. Both have the right to use the easement, and each is equally restricted in the exer- cise of his rights by the corresponding rights of the other. Each is required to regulate his own use by the observ- ance of ordinary care and caution to avoid receiving injury as well as in- •flicting injury upon the other." See also Murphy v. Wait (N. Y.), 102 App. Div. 121, 92 N. Y. Suppl. 253. 15a. Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S. W. 412, 5 A. L. R. 765. 16. Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762; House v. Cramer, 134 Iowa, 374, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 655; Stanton v. Western Macaroni Mfg. Co. (Utah), 174 Pac. 821; Sutter v. Mil- waukee Board of Fire Underwriters, 164 Wis. 532, 166 N. W. 57. 17. See sections 56-82, 231, 232. 18. United States. — Lane v. Sargent, 217 Fed. 237. Califorma. — Bidwell v. Los Angeles & S. D. Ry. Co., 169 Cal. 780, 148 Pac. 197; Mayer v. Anderson (Cal. App.), 173 Pac. 174. Connecticut. — Upton v. Windham, 75 Conn. 288, 53 Atl. 660. Delaware. — Simeone v. Lindsay, 6 Penn. 224, 63 Atl. 778 ; Grier v. Samuel, 4 Boyce, 106, 86 Atl. 209; Brown v. City of Wilmington, 4 Boyce, 492, 90 Atl. 44. Florida. — Farnsworth v. Tampa Elec- tric Co., 62 Fla. 166, 57 So. 223. Georgia. — Shore v. Ferguson, 142 Ga. 657, 83 S. E. 518; Central of Ga. Ry. Co. V. Larsen, 19 Ga. App. 413, 91 S. E. 517. General Right to Use of Highway. 51 traveler shall proceed on foot or by an animal-drawn vehicle, or by some other means of conveyance.'^ At the same time he must recognize the equal rights of the other travelers and Illinois. ^Smiley v. East St. Louis & S. Ry. Co., 256 111. 482, 100 N. E. 157; Christy v. EUiott, 216 111. 31, 1 L. R. A. (N. S.) 215, 74 N. E. 1035, 3 Ann. Cas. 487, 108 Am. St. Rep. 196; Traeger v. Wasson, 163 111. App. 572; Wortman v. Trot, 202 111. App. 528. Jndiajia.— Indiana Spring Co. v. BrowTi, 165 Ind. 465. 74 N. E. 615, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656; Luther v. State, 177 Ind. 619, 98 N. E. 640; Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762; East v. Ana- burn, 47 Ind. App. 530, 94 N. E. 895 ; Elgin Dairy Co. v. Sh|ppard (Ind. App.), 103 N. E. 433; Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457. Iowa. — House v. Cramer, 134 Iowa, 374, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 655; Delfs v. Dunsheo, 143 Iowa, 381, 122 N. W. 236; Simmons V. Lewis, 146 Iowa 316, 125 N. W. 194; Rolfs V. Munins,179 Iowa, 1223, 162 N. W. 783. Eentuoky.—Shinkle v. Cullough, 116 Ky. 960, 77 S. W. 196; Cumberland Telep. & Teleg. Go. v. Yeiser, 141 Ky. 15, 131 S. W. 1049, 31 L. R. A. (N. S.) 1137n. "It is true, as we have said, that in a general sense the pedestrian and the automobilist have equal rights in streets that are set apart for the uso of vehicles as well as the accommoda- tion of foot travelers, and each has rights that the other is bound to re- spect, and it is also true that the auto- mobile must use only the carriage way of the street, while the pedestrian, ex- cept at street crossings, uses generally only the sidewalk. But the pedestrian, in the use of the street at a regular crossing, has the same right to its use as vehicles, and is under no legal duty to give way to automobiles. Tlie auto- mobile can go around him as well as he pan go around it. It can get out of the way of the pedestrian about as easily and quickly as he can get out of its way, although it is usually the case, and rightfully so, that the pedestrian en- deavors to keep out of the way of ve- hicles at street crossings; but if he does not, this does not excuse the driver of that vehicle who runs him down, un- less it be that the driver was free from negligence, and the pedestrian by his own want of care was to blame for the collision." Weidner v. Otter, 171 Ky. 167, 188 S. AV. 335, Lonisiana. — Shields v. Fairchild, 130 La. 648, 58 So. 497. Minnesota. — Carson v, Turrish, 140 Minn. 445, 168 N. W. 349. Missouri.— O'BomaeW v. O'Neil, 130 Mo. App. 360, 109 S. W. 815; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; Young v. Bacon (Mo. App.), 183 S. W. 1079 ; Moenaeh v. Crawford, 187 S. W. 879; White v. Metropolitan St. Ry. Co., 195 Mo. App. 310, 191 S. W. 1122; Carradine v. Ford, 195 Mo. App. 684, 187 S. W. 285. Neio Hampshire. — Gilbert v. Burque, 72 N. H. 521, 57 Atl. 97. Xetv Jersey. — Pool v. Brown, 89 N. J. Law, 314, 98 Atl. 262. New York. — Towner v. Brooklyn Heigthts R. Co., 44 App. Div. 628, 60 N. Y. Suppl. 289; Clark v. Woop, 159 App. Div. 437, 144 N. Y. Suppl. 595; Ebling Brewing Co. v. Linch, 80 Misc. 517, 141 N. Y. Suppl. 480; Miller v. New York Taxicab Co., 120 N. Y. Suppl. 899. Ofc/a/iomo.— White v. Rukes, 56 Okla. 476, 155 Pac. 1184. Pennsylvania. — Borough of Apple- wold V. Dosch, 239 Pa. St. 479, 86 Atl. 1070, Ann. Cas. 1914 D. 481; Silberman V. Huyette, 22 Montg. Co. L. Rep. (Pa.) 52 The Law of Automobiles. must exercise due care to avoid injury to them.^^ Statutory- or municipal regulations, or the general duty to exercise rea- sonable care, may, as a practical proposition, detract from the theory of equal rights at particular places, such as inter- secting streets,^^ railroad crossings,-^ or other places where greater precautions are generally required for the avoidance of injuries. Sec. 50. No superior rights for automobilists. Although automobiles may be said to possess an equal right to use the public highways and roads after compliance with the requirements of the law, such as pertain to registration, licensing, equipment, etc., nevertheless they possess no superior right of way over other travelers.^^ The driver of a motor vehicle is bound to operate his ma- 39; Brown v. Chambers, 65 Pa. Super. Ct. 373. "An owner of an automobile has as much right to the highway as the driver of a horse and carriage. If a horse cannot be driven past a vehicle or car properlj"^ managed, the driver should keep him off the highway or submit to the consequences." Silber- man v. Huyette, 22 Montg. Co. L. Rep. (Pa.) 39. Tennessee. — Coco Cola Bottling Works V. Brown, 139 Teun. 640, 202 S. W. 926. Vermont. — Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669. Virginia. — Core v. Wilhelm, 98 S. E. Washington. — Minor v. Stevens, 65 Wash. 423, 118 Pac. 313; Locke v. Green, 100 Wash. 397, 171 Pac. 245. Wi^cx)nsin. — Weber v. Swallow, 136 Wis. 46, 116 N. W. 844. Bicycles have equal rights on the public ways. Holland v. Bartch, 120 Ind. 46, 22 N. E. 83, 16 Am. St. Rep. 317; Lacey v. Winn (Com. PI.), 3 Pa. Dist. Rep. 811; Lacey v. Winn (Com. PI.), 4 Pa. Dist. Rep. 409. A bicycle being a vehicle, riding one in the usual manner on a public highway is not un- lawful. Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545, 28 L. R, A. 608. 19. While vehicles and pedestrians have equal rights upon the highway it is said that this can only be so when conditions are equal. Gagnon v. Robi- taille, 16 R. L. N. S. 235. 20. See section 276, et seq. 21. See sections 261-262, 394, 435; 497. 22. See section 550, et seq. 23. Arkansas. — Butler v. Cabe, 116 Ark. 16, 171 S. W. 1190. Georgia. — O'Dowd v. Newham, 13 Ga. App. 220, 80 S. E. 36. Illinois. — Graham v. Hagaman, 270 111. 52, 110 N. E. 337; Kerchner v. Davis, 183 111. App. 600. Indiana. — East v. Amburn, 47 Ind. App. 530, 94 N. E. 895. Missouri. — Carradine v. Ford, 195 Mo. App. 684, 187 S. W. 285. Nebraska.— Tj^er v. Hoover, 92 Neb. 221, 138 N. W. 128. New York. — Lorenz v. Tisdale, 127 N. Y. App. Div. 433, 111 N. Y. Suppl. 173. General Right to Use of Highway. 53 chine with reasonable care and with due consideration to the rights of footmen or other travelers having an equal right to the use of the way.^^ As was said in oue case,^ "The more fact that automobiles are run ])y motor power and may be operated at a dangerous and liigli rate of speed gives them no superior rights on the highway over other vehicles, any more so than would the fact that one is driving a race horse give such driver superior rights on the highway over his less for- tunate neighbor who is pursuing his journey behind a slower horse." Sec. 51. Ferries and vessels. While dealing with the right of automobiles to use the pub- lic highways, it is of interest to consider the motor vehicle's right on ferries, which are in the nature of highways, and are generally a continuation thereof. The Revised Statutes of the United States prohibiting passenger steamers to carry as freight certain articles, including petroleum products or other like explosive fluids, except in certain cases and nnder certaiii conditions, was amended by the Act of Feb. 21, 1901, ch. 386, 31 Stat, at L. 799, U. S. Comp. Stat. 1901, p. 3050, which pro- vided that: "Nothing in the foregoing or follo'\\dng sections of this act shall prohibit the transportation by steam vessels of gasolene 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 extin- guished before entering the said vessel and the same be not relighted until after said vehicle shall have left the same . . . ." Under this statutory provision it was held that gaso- lene contained in the tank of an automobile being transported on a steam vessel was carried as freight wdthin the meaning of the statute, that an automobile in which the motive power Avas generated by passing an electric spark through a com- pressed mixture of gasolene and air in the cylinder, causing intermittent explosions, carried a fire while the vehicle was a4. See sections 277-282. 110 N. E. 337. affirminfr ISO 111. App. .25. Graham v. iragaman, :2T0 111. 2r.2. fi.-?!. 54 The Law of Automobiles. under motion from its own motive power ; and that the carry- ing by a steam ferry-boat of such a vehicle, which was run on and off the boat under its own power, was a violation of the statute.^^ In 1905 Congress amended the existing law by enacting that ** Nothing in the foregoing or following sections of this Act shall prohibit the transportation by steam vessels of gasolene 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 inune- diately after entering the said vessel, and that the same be not relighted until immediately before said vehicle shall leave th6 vessel : Provided further, That any owner, master, agent, or other person having charge of passenger steam vessels shall have the right to refuse to transport automobile vehicles, the tanks of which contain gasolene, naphtha, or other dangerous burning fluids. " ^^ It will be seen that Congress relieved, by this amendment, steam vessels from the penalty which they were subjected to under the old law as construed by the de- cision mentioned above. However, as the law now stands, **any owner, master, agent, or other person having charge of passenger steam vessels shall have the right to refuse to transport automobile vehicles" carrying gasolene, naphtha, or other dangerous burning fluids. Sec. 52. Toll roads. A decision of much importance to automobilists handed down by the Supreme Court of New York, held that a certain toll bridge company possessed no legal right to charge tolls for automobiles. The charter of this company enumerated specifically the classes of vehicles for the passage of which tolls could be collected; it made no mention of automobiles. The importance of this decision is due to the fact that there are many other toll bridges throughout the United States 26. The Texas, 134 Fed. 909. Feb. 18, 1905, c. 586, as amended by 27. See 33 Stat, at L., part 2, p. 720, Act March 3, 1905, c. 1457, § 8, as 4 TT. S. Comp. St. 1913, § 8242; U. S. amended by Act May 28, 1906, c. 2565, Rev. St., § 4472, as amended by Act as amended by Act Jan. 24, 1913, c. 10. General Right to Use of Highway. 55 which possess similar charters, and must therefore permit automobiles to pass over their bridges toll free. However, if the charter of such a corporation expressly authorizes the company to charge tolls for certain classes of vehicles men- tioned, and in enumerating the list uses the phrase ''any other vehicle," then the automobile might be held to pay toll. The principle of law governing the subject of exacting auto- mobile tolls is that a corporation which is given valuable privileges from the State possesses only those powers which are expressly granted or conferred by necessary implication from the charter, provisions. Justice Spencer, of the New York Supreme Court, in making the decision here referred to, says: ''The company's right to exact tolls is confined to the animals and vehicles specified in the act conferring the fran- chise. All other animals and vehicles must be presumed to have the right to cross free. The fact that automobiles were not known at the time of the passage of the act makes no dif- ference, for the reason that defendants, by accepting the fran- chise in consideration for the right to collect the tolls stipu- lated for, assumed the duty and responsibility of building and maintaining a bridge that would meet the reasonable require- ments of all travelers on the public highway, including vehi- cles and animals then in common use by travelers, and also such as might thereafter come into common use. Its power to collect toll is derived from the provisions of the franchise. It stipulated for no other or further right, and may not exact toll except as therein provided. If it deems it necessary to require payment of tolls from others it must apply to the Legislature for authority so to do. Its power must be strictly construed. " '^^ The decision in Neiv York has been followed 28. Mallory v. Saratoga Lake Bridge Assault on toll gate keeper.~Evi- Cc, 53 Misc. (N. Y.) 446, 104 N. Y. dence, although contradictod, that the Suppl. 1025. defendants approached a toll gate in New York statute. — ^Since the above an automobile, and when toll was de- decision the legislature of New York manded choked the keeper, rushed their passed an enabling act allowing toll niachino through the gate and injuTod bridges to charge reasonable tolls for the keeper's wife, and that thoy had automobiles, but no more than is previously driven through a number of charged for other vehicles. See L. toll gates at a high rate of speed with- 1907 ch. 127. out paying toll, is sufficient to warrant 56 The Law of Automobiles. in Vennont^^ but a contrary conclusion has been reached in New JerseyP^ In a case in Pennsylvania the right of a turnpike company to prohibit the use of the turnpike road to automobiles was considered. In that case the court, after referring to the acts under which it was incorporated and the power conferred upon it, decided that the turnpike company's road was a pub- lic highway and that an automobile was Avithin the term *' other carriage of burden or pleasure," within the laws of that State, as to the use of highways and turnpike roads by such vehicles, and that the company could not refuse to grant the right to an automobile to use its road and that a peremp- tory writ of mandamus would issue, compelling it to perform the duties prayed for in the petition.^** A petition for a writ of mandamus commanding a turnpike company to allow the petitioner, while operating and using his automobile, the right and privilege of passing over and upon its turnpike road, upon his paying the tolls established by law for the passage of vehicles of similar weight and width of tires over turnpike roads of the commonwealth of Pennsylvania, must aver that the petitioner has complied with all the requirements of the provisions of the State Automobile Act.'^ a verdict of guilty of assault. In such to furnisli the principal moans of heavy a case a demand by the keeper for a transportation. To say that the legig- higher rate of toll than was legal did lature of 181-4 foresaw the advent of not justify the assault. Common- the automobile or any other mechanical wealth V. Rider, 29 Pa. Super. Ct. 621. carriage, and intended to provide for it 29. Peru Turnpike Co. v. Peru, 91 Vt. in this charter, would be to ascribe to 295, 100 Atl. 679, wherein it was said: its members a prophetic vision that even "The legislature failed to provide for those wise and far-seeing men could the unforeseen condition which has not possess. If they had, it is fair to arisen. That this condition was unfore- assume that they would have added a seen does not admit of doubt. It must general clause to the charter to mani- be remembered that we are not dealing fest their purpose." with a situation existing more than a 29a. Proprietors of Cornish Bridge v. hundred years ago. Steam as a means Fitts (N. H.), 107 Atl. 626. of transportation was yet in the experi- 30. Scranton v. Laurel Run Turnpike mental stage; petroleum products were Co., 225 Pa. St. 82, 73 Atl. 1063. unknown ; railroads were unprojected in 31. Bertles v. The Laurel Run Turn- the state, and none was chartered until pike Co., 15 Pa. Dist. Rep. 94. years afterwards; canals were expected General Right to Use Highway. 57 Sec. 53. Exclusion of non-residents. As to the exclusion of non-resident motorists from the pub- lic ways, there is no authority or power in the State to do this, on the ground of non-residence, and the States have no power to place greater restrictions or burdens on non-resident automobilists than those imposed on their own citizens. Such action on the part of a State would violate the Federal Con- stitution. However, the State maj' compel non-residents to comply with the regulations controlling residents. No dis- crimination is created in such a case, as all are treated alike.^- Sec. 54. Automobile racing. Under the common law, the racing of vehicles upon the high- ways was a misdemeanor.^^ But, though the racing of automo- biles upon a public highway is illegal, a spectator who is in- jured thereby cannot recover for injuries from the munici- pality wrongfully permitting the race."^ On the other hand, one using the highway for purposes of travel might be per- mitted to recover for the damages he has sustained through the wrongful use of the road.^^ Where two or more automo- bilists are unlawfully or negligently racing on the highway, and a traveler is struck by one of the machines, he may have his action against either one or against both jointly, for they are jointly and severally liable.^'^ A municipality which dedi- cates a street to such a hazardous use as automobile racing 32. See sections 64, 114, 115. Kans. 653, 171 Pac. G34. 33. Section 728. Liability of Fair for injuries received 34. Rose V. Gypsum City (Kans.), by spectator of race on fair grounds. 179 Pac. 348; Bogart v. City of New Jerrell v. Ilarrisburg Assoc, 215 111. York, 200 N. Y. 379. 93 N. E. 937. App. 273; Arnold v. State, 163 N. Y. A spectator at an automobile contest App. Div. 253, 148 N. Y. Suppl. 479. alleged to have been injured by de- Seo also Ross v. State, 186 N. Y. App. fendant's negligence in operating the Div. 156, 173 N. Y. Suppl. 656. As to car which it had entered in the race liability of driver of one of racing cars, held guilty of contributory negligence see Mankin v. Bartley, 266 Fed. 466. as a matter of law. Baldwin v. Loco- 35. See Bogart v. City of New York, mobile Co., 143 N. Y. App. Div. 599, 200 N. Y. 379, 93 N. E. 937. 128 N. Y. Suppl. 429. 36. Reader v. Otis (Minn.), ISO N. Contributory negligence of boy W. 117; Thomas v. Rasmusson (Neb.), watching auto race on fair ground. — 184 N. W. 104; De Carvalho v. Brun- Scott v. Kansas State Fair Assoc, 102 ner, 223 N. Y. 284. 119 X. E. .36.^. 58 The Law of Automobiles. cannot be said to keep it ' ' reasonably safe ' ' for travel.^' And, when a city or village is sued for injuries occasioned through unlawful racing in the street, it has been held that it cannot defend on the ground that the acts of officials permitting the race were unauthorized.^^ A contrary view, however, has been sustained on this question.^^ If racing on a public high- way is absolutely illegal and unauthorized, it would seem that the proper rule should be that an automobilist would do so at his peril.^'' But it has been held that the mere fact of rac- ing is not, of itself, sufficient to charge the driver with negligence.*^ Sec. 55. Setting aside highways for speed contests. Under a law in New York regulating the speed of motor vehicles *2 it was provided that local authorities may ''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." In construing this act it was de- cided that the power to grant or withhold the necessary con- sents thereto, which carries with it the right to impose condi- tions, was given to the local authorities whose districts would 37. Burnett V. City of Greenville, 106 streets, is to admit the wrong." 8. Car. 255, 91 S. E. 203. 39. Rose v. Gypsum City (Kans.), 38. Burnett v. City of Greenville, 106 179 Pac. 348. S. Car. 255, 91 S. E. 203, wherein it 40. Brown v. Thayer, 212 Mass. 392, was said: "It is suggested by the city 99 N. E. 237. that the dedication of the public ways 41. Johnson v. Reliance Automobile to automobile racing lay wholly outside Co., 23 Cal. App. 222, 137 Pac. 603. the powers of the corporation, for which ' ' Race. ' '—The word ' ' race ' ' has act the corporation is not liable. That been construed as referring to a pre- is another way of saying the corpora- arranged contest, not to an enhanced tion is liable if the authorities act speed of a machine when trying to keep within the law, and is not liable, if another car from passing. Canning v. the authorities act without the law. Wood, 44 D. L. R. (Canada) 525, 52 N. The prime duty of any city is to keep S. R. 452. its streets clear for the public travel. Defects in highway.— It has been held The incumbrance of the streets with that one taking part in a race does not. automobiles running at a dangerous rate assume latent defects in the highway, of speed, just for practice, is a viola- National Veliicle Co. v. Kellum, 184 tion of that prime duty. To answer Ind. 457, 109 N. E. 196. that the mayor and council had no au- 42. Laws of 1904, ch. 538, § 3, subd. thority to authorize such a use of the 6; Laws 1909, ch. 30, § 296. Gknkrai- Right to Use Highway. 59 be injured by the wear and tear of the machines and perhaps benefited by the commercial advantages from the race. And it was held that the State Engineer and Surveyor had no au- thority, by virtue of the powers conferred on him/"' to pro- hibit the use of said highways or to recover for damages thereto occasioned by such a race. And where such official sought to enforce a rule that where the consent of the local authorities had been so obtained there should be deposited with him a certain sum for each mile to be raced over for each day of said race as a prerequisite to the right to hold the race, it w^as decided that such action was clearly illegal, as his con- sent to the race taking place was not necessary and he had no authority to promulgate the rules.^^ 43. Laws 1898, ch. ITS, as amended 44. Morrell v. Skene, 64 Misc. (N. in 1907. Y.) 185, 119 N. Y. Suppl. 28. 60 The Law of Automobiles. • CHAPTER V. STATUTORY REGULATION OF MOTOR VEHICLES. Section 56. Scope of chapter. 57. General power of regulation. 58. Regulatory power lodged in legislature. 59. Purpose of acts. 60. Title and form of statute 61. Due process of law. 62. Discrimination between motorists and other persons. 63. Discrimination between owners of different machines — between dif- ferent motor vehicles. 64 Discrimination between owners of different machines — non-residents. 65. Discrimination between owners of different machines— aliens. 66. Certainty of enactment. 67. Repeal of statutes. 68. Construction of regulation. Sec. 56. Scope of chapter. In tliis chapter arc discussed the general principles relating to the regulation of motor vehicles, together with a discussion of certain specific regulations. Generally, the construction and effect of particular regulations are treated in other parts of this work. Thus, in other places will be found a discussion of particular regulations such as pertain to the registration and licensing,^ speed,^ and lighting^ of vehicles, the law of the road,* the regulation of jitneys,^ taxicabs, and other car- riage for hire.*' So, too, matters governing the conduct of garagekeepers '' and chauffeurs,^ will be found covered in the chapters on those subjects. Also, various matters in relation to the enforcement of regulations by means of criminal prose- cutions, together with a discussion of some of the penal offenses involved, are to be found in another chapter.® And the probative effect of a violation of a valid regulation, as it bears on the issue of negligence, is reserved for a subsequent 1. Sections 92-128. 5. Sections 130-173. 2. Sections 230, 306-324. 6. Section 132, et seq. 3. Sections 344-348. 7. Sections 195-200. 4. Sections 236, 241-275, 371-394, 8. Sections 220-222. 492-499. 9. Chaptrjr XXVII. Statutory Regulation of Motor Vehicles. 61 chapter.i*^ The powers of Congress,^^ and of municipal bodies,^2 ^re also discussed in other chapters. In short, at this place, it is intended to discuss the matters which pertain to regulation in general, as distinguished from the construc- tion and effect of particular regulatory measures. Sec. 57. General power of reflation. It is, of course, true that automobilists have the right to use the public highways for purposes of pleasure or business,^^ but this right is not so sacred that it is beyond the control of the State and municipal divisions. On the contrary, there is no dissent from the general rule that the Legislature, by virtue of its police power, may make regulations governing the conduct of the owners and drivers of motor vehicles.^' A regulation must be enacted in a constitutional manner. That 10. Sections 297-302. 11. Sections 83-91. 12. Sections 69-82. 13. Section 48. 14. United States.— Hendnck v. State of Maryland, 35 S. Ct. 140; Kane v. State of New Jersey, 242 U. S. 160, 37 S. Ct. 30. California. — Ex parte Berry, 147 Cal. 523, 82 Pac. 44 ; Ex parte Schuler, 167 Cal. 282, 139 Pac. 685; Ex parte Lee, 28 Cal. App. 719, 153 Pac. 992; Ex parte Smith, 26 Cal. App. 116, 146 Pac. 82; Ex parte Smith, 33 Cal. App. 161, 164 Pac. 618. EentucTcy. — Newport v. Merkel Bros. Co., 156 Ky. 580, 161 S. W. 549 ; Smith V. Commonwealth, 175 Ky. 286, 194 S. W. 367. Maine. — State v. Mayo, 106 Me. 62, 75 Atl. 295, 26 L. R. A. (N. S.) 502, 20 Ann. Cas. 512; State v. Phillips, 107 Me. 249, 78 Atl. 283. Maryland. — Swann v. City of Balti- more, 132 Md. 256, 103 Atl. 441. Massachusetts. — Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513; Commonwealth V. Slocum, 230 Mass. 180, 119 N. E. 687. Michigan. — Johnson v. Sargent, 168 Mich. 444, 138 N. W. 468; Jasmowski V. Board of Assessors of City of De- troit, 191 Mich. 287, 157 N. W. 891. Minnesota. — Schaar v. Comforth, 128 Minn. 460, 151 N. W. 275. Missouri. — Ex parte Kneedler, 243 Mo. 632, 147 S. W. 983, Ann. Cas. 1913 C. 923 ; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; City of St. Louis V. Hammond, 199 S. W. 411. Nebraska.— SchnUz v. State, 88 Neb. 613, 130 N. W. 972, 34 L. R. A. (N. S.) 243. Neiu Jersey.— Vfest v. Asbury Park, 89 N. J. L. 402, 99 Atl. 190 New YorJc. — Mcintosh v. Johnson, 211 N. Y. 265, 105 N. E. 416; People v. MacWilliams, 91 App. Div. 176, 84 N. Y. Suppl. 357; Strauss v. Enright, 105 Misc. 367. 0/iio.— State v. Schaeffer, 96 Ohio, 215, 117 N. E. 220; City of Fremont v. Keating, 96 Ohio St. 468, US N. E. 114. Ok'lahoma.—Ex parte Mayes, 167 Pac. 749. 62 The Law of Automobiles. is, it must be in the required form with respect to its title/" and constitutional requirements with reference to the wording or separation of provisions must be obeyed. Sec. 58. Regfulatory power lodged in legislature. The control of the highways is, in the first instance, lodged in the Legislature of the State.^^ This control may be exer- cised by the Legislature by the enactment of statutes govern- ing the powers and liabilities of automobilists. Or, the law South Carolina. — Lillard v. Melton, 103 8. Car. 10, 87 S. E. 421; Mer- chants' & Planter's Bank v. Brigman, 106 S. Car. 362, 91 S. E. 332. "The legislature has the inherent po- lice power to pass any law it judges fit for the protection and welfare of its people in traveling over the public highways of the State, and it is a matter within the discretion of the legisla- ture of the State to determine what in- terests the public requires, and to adopt Bueh measures and means as are reason- ably necessary for the protection of such interests, and to make reasonably safe the traveling public. As long as the legislature acts in relation to the police power vested in it as the law- making power, it is not for the court to vacate their action upon constitutional grounds, or to say whether the meas- ure is wise or unwise. The legislature by passing the act judged the measure to be reasonable and wise. The public generally has the right to use the high- ways of the State and travel over the same — afoot, horseback, in vehicles, and motor vehicles." Merchants' & Plant- er's Bank v. Brigman, 106 S. Car. 362, 91 S. E. 332. Texas. — Peters v. City of San An- tonio (Civ. App.), 195 S. W. 989. "The cases with unanimity decide that the legislatures of states have full and complete control over the highways, streets and alleys, and that such con- trol may be delegated to municipalities. and it follows from such complete con- trol that the use of the streets for the prosecution of any private business may be wholly denied, or granted with such provisions and regulations as may be deemed proper by the municipality. When a franchise is granted, during its existence unreasonable and oppressive regulations might form the ground of complaint; and, when a vested right is regulated, the reasonableness of the regulation could undoubtedly be made the subject of judicial investigation. But, when a privilege to which a party has no right has been given and which is granted for an indefinite time and which can be terminated at any time by the granting power, we fail to under- stand how the reasonableness of such regulations can be made the basis of an attack." Peters v. City of San An- tonio (Tex. Civ. App.), 195 S. W. 989. West Virginia. — Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781 ; Beck v. Cox, 77 W. Va. 442, 87 S. E. 492. Canada. — A province of Canada has power to regulate the use of motor ve- hicles upon the highways within it. Mat- ter of Rogers, 7 E. L. R. (Canada) 212. 15. Section 60. 16. Western Union Teleg. Co. v. Hop- kins, 160 Cal. 116, 116 Pac. 567; Ex parte Smith, 26 Cal. App. 116, 146 Pac. 82; State ex rel. Lunig v. Johnson, 71 Fla. 363, 72 So. 477 ; Peters v. City of San Antonio (Tex. Civ. App.), 195 S. W. 989. Statutoiiy Regulation of Motok \''ehicles. 63 makers may delegate some of their powers to municipal divi- sions of the State, such as counties, cities, villages, towns, etc.^' But the Legislature, after a delegation of certain powers, is not precluded from further action in the matter, but it may by appropriate legislation repeal the delegation and resume control of the subject.^^ The situation is, of course, somewhat different when the authority of a municipal division is protected by the Constitution of the State. In such a case, a law abridging the power of the municipality might be unconstitutional.^^ Thus, where the Constitution provides in effect that the Legislature shall have no power to impose taxes upon counties or upon the inhabitants thereof, for county purposes, but shall empower the county authorities to impose taxes for such purposes, the State cannot impose a license tax on automobiles for the construction and repair of county roads.^" Sec. 59. Purpose of acts. Several different purposes are subserved through the enact- ment of regulations. The principal purpose is the safety of other travelers.^^ But regulations may be said to have been enacted in the interest of uniformity in the regulation of the machines.^2 That is, it is in the interest of automobilists that they encounter similar regulations in the various villages and 17. Section 70. ex rel. Lunig v. Johnson, 71 Fla. 363, 18. State ex rel. Lunig v. Johnson, 71 72 So. 477. And See also section 72. Fla. 363, 72 So. 477; Anderson v. Went- 19. Ex parte Schuler, 167 Cal. 282, worth, 75 Fla. 300, 78 So. 265; People 139 Pac. 685; People v. McGraw, 184 V. Braun, 100 Misc. (N. Y.) 343, 166 Mich. 233, 150 N. W. 836; City of Fre- N. Y. Suppl. 708 ; Ex parte Shaw mont v. Keating, 96 Ohio St. 468, 118 (Okla.), 157 Pac. 900. N. E. 114; Kalich v. Knapp, 73 Oreg. "There is nothing in our constitution 558, 145 Pac. 22. that prohibits the legislature from en- 20. Ex parte Schuler, 167 Cal. 282, acting a statute taking away from the 139 Pac. 685. See also Ex parte Shaw boards of county commissioners, not (Okla.), 157 Pac. 900. only a part, but the whole, of their su- 21. Elsbery v. State, 12 Ga. App. 86, pervision and control of public roads 76 S. E. 779 ; City of St. Louis v. Ham- and bridges, and lodging such powers mond (Mo.), 199 S. W. 411; State v. elsewhere, since the control of all gen- Schaeflfer, 96 Ohio, 215, 117 N. E. 220. eral public highways is vested in the 22. Dozier v. Woods, 190 Ala. 279, state absolutely without any constitu- 67 So. 283; Ex parte Smith, 26 Cal. tional limitations or restrictions. State App. 116, 146 Pac. 82; People t. Sar- 64 The Law of Automobiles. cities througli which they may pass, and regulations may be designed to this end and to the prohibition of various drastic requirements by municipal corporations.^* Or, to a certain extent, they may be designed to afford revenue or to reim- burse municipalities for the injuries to the highways which are occasioned by motor vehicles.-^ gent, 254 111. 514, 98> N. E. 959; City of Barbaroo v. Dwyer, 166 Wis. 372, 165 N. W. 297. 23. People v. Sargent, 254 III. 514, 98 N. E. 959 ; People ex rel. Hainer v. Keeper of Prison, 121 N. Y. App. Div. 645, 106 N. Y. Suppl. 314, affirmed 190 N. Y. 315, 83 N. E. 44; City of Bara- boo V. Dwyer, 166 Wis. 372, 165 N. W. 297. "The invention, development and use of the automobile introduced an en- tirely new element and revolutionized travel upon all the highways of the State. The operation of these motor vehicles at exceedingly high rates of speed introduced a new element of danger for all those who enter upon the public highways. Negligence in the operation of motor vehicles involves great danger to the lives and property of others lawfully using the highways. In former times, vehicles drawn by horses or oxen moved at a comparatively low rate of speed, and even in cases of a runaway, others upon the highway but infrequently had difficulty in avoiding injury or danger. When vehicles so drawn were negligently managed, and injured the person or property of others, there was usually but little dif- ficulty in locating the person responsible for the injury. Such vehicles did not usually travel long distances and the person responsible for the injury in- flicted by thf.m could usually be found somewhere within the region where the cause of action arose. The modern ve- hicle drawn by an engine, is capable of traversing the State from one end to the other within a single day. Such ve- liicles make journeys far distant from the residence of the person responsible for negligence in their operation, thus making it difficult for the person in- jured in person or property, to even ascertain the identity of the person re- sponsible for his injuries, and still more difficult for him to obtain redress, in case he has to follow the negligent operator of the engine to some distant part of the State. These considerations led, in earlier years, following the in- troduction of this class of traffic, to the adoption of stringent police regulations with regard to the running of motor vehicles on the highways of numerous municipalities of the commonwealth. Each municipality had its own code of regulations, and the numerous codes greatly varied. Some of the require- ments were perhaps unreasonable. The operator of an automobile could form no idea from reading the rules of one municipality what new regulations he might have to observe when he crossed the line into the jurisdiction of some municipal neighbor. This was the con- dition of affairs when the legislature of the State assumed the duty, in the exercise of the supreme police power with which it was vested, to establish uniform regulation with regard to this matter and limit the power of local au- thorities to the ordaining of regulations which were not inconsistent with the uniform code. The act of April 27th, 1909 (P. L. 265), is the final expression of the legislative will upon this subject and supersedes all prior legislation in- consistent therewith." Garrett v. Turner, 47 Pa, Super. Ct. 128, affirmed 235 Pa. St. 383, 84 Atl. 354, 24. Ex parte Smith, 26 Cal. App. 116, 146 Pac. 82; State v. Ingalls, 18 Statutory Regulation of Motor Vehicles. 65 Sec. 60. Title and form of statute. In the enactment of motor vehicle laws, as well as other stat- utes, constitutional provisions relative to the title, form and manner of enactment of laws, must receive compliance. Other- wise, the proposed law will fail to become effective, though the subject matter is within the legislative power. Thus, con- stitutional provisions in some States require that a proposed statute shall comprise but one subject or that the subject shall be expressed in the title to the act.=^ A requirement of a State constitution that no law shall contain more than one subject, is not offended by an act which regulates the operation of motor vehicles and also provides for the payment of license fees.^s ^nd an act entitled as being an act for the regulation licensing and governing of motor vehicles, is not invalid be- cause it also provides for the disposition of license fees re- ceived under the act.^^ And a statute making the speed of a motor vehicle at a prohibited rate prima facie evidence of negligence in case of an injury to another traveler, is held to N. Mex. 211, 133 Pae. 1177; Common- wealth ex rel. Bell v. Powell, 249 Pa. St. 144, 94 Atl. 746. 25. Title of municipal ordinances. — A constitutional requirement relative to the title of acts, may not apply to municipal ordinances. Craddock v. City of Antonio (Tex. Civ. App.), 198 e. W. 634. 26. Jasmowski v. Board of Assessors of City of Detroit, 191 Mich. 287, 157 N. W. 891. See also, Wilson v. State (Tenn.), 224 S. W. 168. 27. Smith v. Commonwealth, 175 Ky. 286, 194 S. W, 367. See also People v. Sargent, 254 111. 514, 98 N. E. 959. Pennsylvania statute. — A statute of Pennsylvania providing for registration, licensing, and disposition of the fees, is germane to the subject to the regula- tion of motor vehicles, which is ex- pressed in the title of the act, and is not in violation of u provi.'sion of the Constitution forbidding bills, except general appropriation bills, from con- taining more than one subject which shall be clearly expressed in the title. Nor is a provision of such a law pro- viding for the use of such moneys in the maintenance of State highways of- fensive to a constitutional requirement providing that the general appropria- tion bills shall embrace nothing but ap- propriations for the ordinary expense of the executive, legislative and judicial departments, interest on public debt and for public schools, and that all other appropriations shall be made by separate bills, each embracing but one subject; for such a constitutional pro- vision is intended to apply only to bien- nial appropriations from general reve- nues and not to a fund created for a special purpose to which it is dedicated. Commonwealth ex rcl. Bell, 249 Pa. St. 144, 04 Atl. 746. 66 The Law of Automobiles. be within the title of a motor vehicle statute for ''regulating the use and speed" of motor vehicles.^^ Sec. 61. Due process of law. The objection is frequently made to motor vehicle regula- tions that they take property without due process of law. Inas- much as they are based on the police power of the State, the objection must generally fail.^^ But an act rendering the owner of a motor vehicle liable for the negligent operation thereof by one who takes the machine without his consent, such as a mere trespasser, is deemed violative of the consti- tutional protection.^*' On the other hand, it has been held that an act creating a lien on a motor vehicle for injuries occasioned by its negligent operation and giving such lien priority next to State and county taxes, is within the legislative power.^^ Sec. 62. Discrimination between motorists and other persons. As a general proposition, it is not an unjustifiable discrimi- nation or special legislation to enact a law regulating the use of motor vehicles on the public highways, though other vehicles using the way are unaffected or less affected thereby .^^. Per- sons 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 legis- 28. Hartje v. Moxley, 235 111. 164, Atl. 354. 85 N. E. 216. ' • The constitutional requirement is 29. See section 57. that laws, upon the subjects discrimi- 30. Daugherty v. Thomas, 174 Mich. nated by the section of the Constitu- 371, 140 N. W. 615, 45 L. R. A. (N. S.) tion in question, shall be general, not 699, Ann. Cas. 1915 A. 1163. local or special, and uniformity of re- 31. Merchants' & Planters' Bank v. suit is only one of the judicial tests Brigman, 106 S. Car. 362, 91 S. E. 332. applied to laws for the determination 32. Hudgens v. State, 15 Ala. App. of their character as to generality. A 156, 72 So. 605 ; Westf alls, etc., Express law may by classification or otherwise Co. V. City of Chicago, 280 111. 318, 117 produce some diversion of result and N. E. 439 ; State v. Lawrence, 108 Miss. yet be general, but where tlie classifica- 291, 66 So. 745 ; City of St. Louis v. tion is based on genuine distinctions, Hammond (Mo.), 199 S. W. 411; State its expediency is for legislative de- V, Ingalls, 18 N. Mex. 211, 135 Pac. termination." Garrett v. Turner, 47 1177; Garrett v. Turner, 47 Pa. Super. Pa. Super. Ct. 128, affirmed 235 Pa. St. Ct. 128, affirmed 235 Pa. St. 383, 84 383, 84 Atl. 354. Statutory Regulation of Motor Vehicles. 67 lation applies to all within the class and affects them all alike.^^ Thus, an act regulating the speed of automobiles is not unconstitutional as class legislation.^* And a regulation which fixes a speed limit and which by its terms includes all vehicles, is not subject to the objection that it is discrimina- tory and special legislation because the limit is fixed so high that only motor vehicles can violate it.^^ So, too, a provision of a motor vehicle law which makes excessive speed prima facie evidence of negligence, is not invalid on the theory that it gives one injured by an automobile a special advantage in a suit for his injuries.^^ And a regulation may be effective 33. Garrett v. Turner, 235 Pa. St. 383, 84 All. 354. "Motor vehicles have been classified separately from horse-drawn vehicles and have been the subject of separate legislation ever since they came into general use. Their departure, in char- acter, use, and speed from liorse-drawn vehicles has been so great as to justify such classification, even though there is some similarity in weight, length, and use between the motor trucks and the kind of horse-drawn vehicles employed by public cartmen for commercial pur- poses. Motor trucks, traveling for longer distances in shorter time, are more dangerous because of greater speed and the heavier loads carried, and courts can take judicial knowledge that they do more damage to the surface of the streets ami therefore might very reasonably be required to pay a greater tax than a horse-drawn vehicle. The question of reasonable classification is primarily for the legislative branch of the government, and only becomes a ju- dicial question when such legislative ac- tion is clearly unreasonable. The legis- lature may classify persons or objects for the purpose of legislative regula- tion and control, provided such classi- fication is not an arbitrary one and is based upon some substantial diflferencc bearing proper relations fb the classifi- cation." Westfalls, etc., Express Co. v. City of Chicago, 280 III. 318, 117 N. E. 439. 34. Christy v. Elliott, 316 111. 31, (4 X. E. 1035, 1 L. R. A. (N. S.) 215, 3 Ann. Cas. 487, 108 Am. St. Rep. 196; City of St. Louis v. Hammond (Mo.), 199 S. W. 411. 35. Ex parte Snowden, 12 Cal. App. 521. 107 Pac. 724. 36. Hartje v. Moxley, 235 111. 164, 85 X. E. 216, wherein it was said: "It is also urged that section 16, supra, •vio- lates section 23 of article 4 of the Con- stitution of the State in that it is special legislation, for the reason that it confers upon persons who claim to have been injured by a moving automo- bile a peculiar advantage in the trial of a case te equally respected.^^ Whether a given ordinance is reasonable, is a question for the court, not for the jury,*'^ and the courts will not declare an ordinance unreasonable, unless it clearly ap- pears to be so.'^*' Thus, it was said in one case,"^ "AVhether any particular ordinance is reasonable for the purpose for which it is enacted is in the first instance a question to be determined by the municipal authorities. Wlien they have acted and the ordinance has been passed it is presumptively valid, and before a court would be justified in holding it in- valid its unreasonableness must be clearly made to appear. AVhile it is true that municipal ordinances, to be valid, must be reasonable, the presumption is in favor of their validity, and it is incumbent upon any one seeking to have them set aside as unreasonable, to point out or show affirmatively wherein the unreasonableness consists." With reference to the speed of motor vehicles, it has been said that, unless it should appear that the rate of speed pre- scribed is such as to render it impossible for the machine to be propelled, the limitation vdW not be held to be so unreason- able as to make the ordinance void."^^ An ordinance fixing a speed at six miles an hour on city streets between crossings and four miles an hour at crossings is not necessarily unrea- sonable.'^^ And an ordinance prohibiting a speed in excess of three miles an hour has been sustained.'^^ In fact, under cer- tain circumstances, such as Avhen an automobilist is passing a street car receiving or discharging passengers, regulations may require that the automobile be brought to a complete stop."^^ 68. Schell V. DuBois, 94 Ohio 93, 113 71. Chicago v. Shaw Livery Co., 253 N. E. 664. 111. 409, 101 N. E. 5S8. 69. Columbus R. Co. v. Waller, 12 72. Columbus R. Co. v. Waller, 12 Ga. App. 674, 78 S. E. 52. Ga. App. 674, 78 S. E. 52. 70. City of St. Louis v. Hammond 73. Eichman v. Buchheit, 128 Wis. (Mo.), 199 S. W. 411; City of Windsor 385, 107 N. W. 325, 8 Ann. Cas. 435. V. Bast (Mo. App.), 199 S. W. 722; Ex 74. Columbus R. Co. v. Waller. 12 Ga. parte Parr, 82 Tex. Cr. 525, 200 S. W. App. 674, 78 S. E. 52. 404. 75. Schell v. DuBois, 94 Ohio 93, 113 X. E. 664. See also section 425. S6 The Law of Automobiles. There are circumstances under Avhicli an ordinance appear- ing unreasonable on its face may be justified, as, for example, where a city having the power to exclude certain types of motor vehicles from certain streets, does so in an indirect manner by prescribing an excessive license fee for the use of those streets. The fact that the fee is so unreasonable as to exclude the vehicles from the streets does not invalidate the ordinance, for the municipality having the power of exclusion may attach such conditions as it sees fit to the use of the streets."^^ But, if there is no sound reason or basis for for- bidding certain vehicular traffic on certain streets, the ordi- nance may be invalid.'" An ordinance may be deemed un- reasonable if it attempts to regulate the use of vehicles at places other than streets and alleys.''* Sec. 79. Manner of enactment. Constitutional and statutory requirements for the enact- ment of municipal ordinances must be obeyed, or the enforce- ment of the ordinance will be doubtful. The passage of an ordinance for the regulation of jitneys, however, is not the granting of a franchise, and such an ordinance need not go through the special form which is prescribed in many States for the grant of a franchise.'^® Requirements as to the post- ing and publishing of the proposed ordinance must receive compliance before it becomes effective. And, if the law re- quires that a proposed ordinance be entitled in a certain manner, the absence of a proper title may render the ordi- nance void.^ In some jurisdictions, statutes permit muni- cipalities to enact certain speed limits for motor vehicles within their limits, but require the establishment of a sign at the limits as a warning to travelers of the limit to be enforced 76. Dresser v. City of Wichita, 96 80. A constitutional provision rela- Kans 820, 153 Pac. 1194. tive to the title of proposed laws will 77. Curry v. Osborne, 76 Fla. 39, 79 not necessarily apply to municipal ordi- So. 293, 6 A. L. R. 108. nances. Craddock v. City of San Au- 78. Royal Indemnity Co. v. Schwartz tonio fTex. Civ. App.), 198 S. W. 634. (Tex. Civ. App.), 172 S. W. 581. The title is sufficient if it shows the 79. City of Dallas v. Gill (Tex. Civ. general character of the ordinance. App.), 199 S. W. 1144. White v. Turnor (Wash), 105 Pac. 240. Municipal Regulations. 87 within the municipality.^^ Under such statutes, if the muni- cipal authorities have failed to erect the proper sign, they cannot enforce a limit lower than that prescribed by the gen- eral State law. But the legislature need not require muni- cipalities to establish such signs, and municipal ordinances will be sustained, if all the statutory requirements receive compliance, though no warning of the limit is given to travel- ers.^- Where, in a prosecution for operating an automobile at a speed in excess of that prescril)ed by the by-laws of a tow^l, it was agreed that such by-laws were "duly estab- lished," such stipulation was deemed to admit that they were advertised and posted as provided by the State statute, and that they were made as authorized by such act.^ If the dele- gation from the Legislature of the power to adopt ordinances specify that they shall be enacted by a certain body, such as the conmion council, regulations by another body or a muni- cipal official may be void.^* Sec. 80. Application of regulation beyond municipal limits. The jurisdiction of municipal legislative bodies is confined, as a general proposition, to the territorial limits of the muni- cipality. And, though municipal regulations may be made for the operation of motor vehicles within its boundaries, thoy 81. People V. Untermyer, 153 App. the statute pays it must, it then be- Div. 176, 138 N. Y. Suppl. 334; People comes actual notice, whether seen or V. Hayes, 66 Misc. 606, 124 N. Y. not." People v. Hayes, 66 Misc. 606, Suppl. 417; People v. Chapman, 88 124 N. Y. Suppl. 417. Misc. 469, 152 N. Y. Suppl. 204. See First class cities.- Under the pro- also State v. Buchanan, 32 R. I. 490, visions of the Highway Law, as 79 Atl. 1114. "The construction of amended by chapter 274 of the laws of the statute which compels the erection 1910, cities of the first class may pass of signs upon all highways where speed ordinances regulating the speed of auto- is to be reduced is consistent with its mobiles, without any condition as to general object and the evil sought to be posting of signs. People v. Untermyer, corrected. Violations of speed regula- 153 N. Y. App. Div. 176, 138 N. Y. tions arc not crimes niaUi in se; they Suppl. 334. involve no moral turpitude. The legis- 82. Eichmau v. Buchheit, 128 Wis. lature, therefore, has directed that, be- 385, 107 N. W. 325, S Ann. Cas. 435. fore one can be held for violations of 83. Commonwealth v. Sherman, 191 this prohibited act, a notice shall be Mass. 439, 78 N. E. 98. given by means of a sign; and, if it 84. Harding v. Cavanaugh, 91 Misc. be plainly readable and contains what Rep. 511, 155 N. Y. Suppl. 374. 88 The Law of Automobiles. have no force outside of the limits.^^^ And a city ordinance requiring the payment of a license fee by persons operating- vehicles for the transportation of passengers for hire within the city limits, has been held inapplicable to the transportation of passengers between points within the city and points out- side.^^ Bnt a contrary opinion has been announced in respect to this class of traffic.®^ But, where one is engaged in carry- ing passengers between two points out of a city, though his course goes through the city, it is held that his acts do not constitute '*a business transacted and carried on in such city, ' ' within the meaning of a statute permitting the city "to license such business.^^ Sec. 81. Punishment for violation of ordinance. Though the question is open to doubt, it has been held that a municipality may make the violation of one of its ordinances a criminal offense and punish the offender by iine.^^ And it has been held that the Legislature can delegate to a court of county commissioners the authority to make and promulgate rules and regulations, the violation of which constitutes crime.^^ In any event, it is proper procedure to maintain a civil action to collect a fine imposed by a municipal ordi- nance.^'^ Sec. 82. Proof of ordinance. As a general proposition, the courts will not take judicial notice of local ordinances, and hence their existence and terms must be i^roved as a fact.^^ Even in proceedings in an in- 84a. Miller v. Week, 186 Ky. 552, 217 man, S8 Mise. fX. Y.) 469, 152 X. Y. S. W. 904. Suppl. 204. 85. McDonald v. City of Paragould, 89. State v. Strawbridge (Ala. App.), 120 Ark. 226, 179 S. W. 335. 76 So. 479. 86. City of Caiterville v. Blystone, 90. State v. Hamley, 137 Wis. 458, 160 Mo. App. 191, 141 S. W. 701. 119 N. W. 114. 87. Ex imrte Smith, 33 Cal.-App. 161, 91. Muther v. Capps, 38 Cal. App. 164 Pae. 618. Seo also section 100. 721, 177 Pae. 882; Linstioth v. Peper 88. Chapman v. Selover, 225 N. Y. (Mo. App.), 188 S. W. 1125; People 417, 122 N. E. 417, reversing Chapman v. Trainee, 93 Misc. (X. Y.) 82, 155 V. Selover, 172 App. Div. 858, 159 N. Y. N. Y. Suppl. 1015; White v. State, 82 Suppl. 632. See also People v. Chap- Tex. Ci-. 274, 198 S. W. 964. Municipal Regulations. 89 ferior court sitting in the municipality passing the ordinance in question, it is held in some jurisdictions that the ordinance must be proved.^^ And the courts will not take judicial knowl- edge that park conmiissioners have passed regulations pre- scribing the rate of speed for motor vehicles on the park roads.^^ But in some jurisdictions local courts will take judi- cial notice of ordinances in force in such locality .^^ And, by virtue of statutory enactments in some States, the courts are required in some cases to take judicial notice of ordinances.^^ It has been held that, on a trial for a violation of a municipal ordinance, the prosecution must show, not only that the ordi- nance was duly adopted by the legislative body of the muni- cipality, but also that there had been a compliance with all the requirements of the law relative to the adoption of ordi- nances, such as the publication and the posting of the regu- lation.^ Compilations of ordinances authorized by statute are generally j^rima facie proof of their substance, legality of adoption, and their date of passage.^^ 92. People v. Trainee, 92 Misc. (N. Y. Suppl. 528; Wirth v. Burns Bros., Y.) 82, 155 N. Y. Suppl. 1015. 229 N. Y. 148, 128 N. E. Ill; Peterson 93. People v. Lloyd, 178 111. App. 66. v. Palli?, 103 Wash. 180, 173 Pac. 1021. 94. City of Spokane v. Knight, 96 96. People v. Chapman, 88 Mi.«f. (N. Wash. 403, 165 Pac. 105. Y.) 469, 152 N. Y. Suppl. 204. 95. Hart v. Roth, 186 Ky. 535, 217 97. Barrett v. Chicago, dc. R. Co. S. W. 893; Cohen v. Goodman & Sons, (Iowa), 175 N. W. 950. Inc., 189 N. Y. App. Div. 209, 178 N. 90 The Law of Automobiles. CHAPTER VII. FEDEEAL CONTROL OVER MOTORING. Section 83. In general. 84. Powers of State ami Feilcial governments. 85. Regulation of internal matters belongs to State. 86. Interstate motoring. 87. The right of transit 88. Citizen's right of transit. 89. Transit of vehicle. 90. Limitation on license fees. 91. Questions of interstate commerce not in issue. Sec. 83. In general. The question has been raised in the minds of many "vvhether or not the United States government should, to any extent, control the operation of automobiles and seek to take the matter out of the hands of the States. This question naturally arises from a consideration of the adverse attitude which some of the State legislators have taken in reference to the automobile. The advisibility of Congress to control inter- state motoring does not depend upon any action the State might take in regulating the automobiling within its borders. Sec. 84. Powers of State and Federal governments. It is not so much a question whether the United States should control the operation of the motor vehicles as whether the Federal government really possesses the power to act in the matter. It must not be forgotten that in this country there are two distinct sovereignities — two governments — that of the State and that of the United States. Each govern- ment is distinct and independent of the other in many matters. There are certain things that the United States government cannot do which affect the State, and there are matters the State has no control over which affect the United States. Sec. 85. Regulation of internal matters belongs to State. The regulation of the use of internal highways is a matter which belongs exclusively to the State government. It is a Fr.DERAL C'OXTROL OvEF. MoTOMXG. 91 matter of purely internal concern and comes under the State's power to pass regulations protecting the public from danger in the operation of vehicles on the highways. Over these State internal police matters the United States has no control at all ; and, in so far as motoring is confined exclusively within the jurisdiction of a State, Congress cannot act. Sec. 86. Interstate motoring. Where, however, automobiling is interstate, that is, where the motorist passes from one State into another, the Federal government is not necessarily given jurisdiction over such travel by the commerce clause of the United States Constitu- tion. The United States has jurisdiction to control interstate commerce, and interstate commerce possibly may include in- terstate pleasure travel by means of the motor car, but there is great doubt as to this. Action by the United States in respect to interstate motoring, however, would not prevent the States from regulating automobile travel within their own domains. This right is granted the States by the Con- stitution and could not be taken from them by any act of Con- gress. There is a question in regard to the jwwer of Congress to regulate interstate automobiling, and that is, does interstate travel for pleasure, such as interstate automobiling generally is, constitute interstate commerce within the meaning of the United States Constitution, gi'anting to Congress the exclusive control thereof? This question leads us to ask what com- merce is. Ordinarily commerce consists of "commercial in- tercourse." It must be conceded that interstate travel for pleasure and recreation does not savor of anything commer- cial. If is not business.^ It is pleasure and recreation, and nothing more. Of course, interstate travel carried on by automobiles used for commercial purposes, such, for example, as the public carrying of passengers and goods, without ques- tion constitutes interstate commerce. The greater amount 1. Interstate transportation of liq- prosecuted under such legislation where uors. — Congress has enacted legislation an automobile is used as the means of forbidding the transportation of liquors transportation. See Ex parte West- into "dry" territory and one may l)e brook, 250 Fed. 636. 92 The Law of AutomobiljvS. of interstate automobile travel, however, is for the purpose of pleasure and recreation. Business and pecuniary gain have no connection with it. The idea that Congress may possess the power to pass regu- lations controlling interstate automobiling is not by any means a new one. There can be no question as to Congress ' power. Whether the travel be by steam railroad, trolley car, vessel, automobile, bicycle, or on foot, if it consists of the passage of either persons, animals or goods from one State into an- other, across the boundary line of any two States, then the travel may constitute interstate commerce provided there exists a commercial purpose. People who, for commercial gain or commercial purposes, walk across a bridge which spans a river between two States may be said to carry on in- terstate commerce, and Congress possesses plenary power to regulate this travel. But if a valid, just and non-discriminat- ing law is to be enacted, the form in which the bill is framed and the method of procedure of its supporters are of para- mount importance. Direct legislation will not do. Manifestly the flying of a kite or the throwing of a stone across the boundary of two States would not constitute inter- state commerce. The passage of telegraph and telephone mes- sages, however, has been held to come within the commerce clause of the Constitution, and the kind of messages, whether concerning business, pleasure or what not, makes no differ- ence according to the decisions. It must be admitted that in the case of the automobile we have the following elements of interstate commerce: 1. A means of travel. 2. Actual travel or traffic. 3. A means of, and actual travel, which will satisfactorily carry and convey people and freight. 4. Interstate travel or traffic. 5. Business or commercial purpose of travel. Does the purpose or object of all this automobile travel have any bearing on the question as to whether it constitutes commerce? This is the only question which must be decided before the authority of Congress, to legislate on the subject FeDEK.VL CONTIIOL OvER ^loTOKING. 93 is established. We will consider briefly in the note the mean- ing of the term commerce and ascertain if the travel must in some way be connected or related to business, trade or gain.- It is the oi^inioii of many persons that Congress possesses no power to take cognizance of the automobile which is en- gaged in interstate travel for pleasure merely, by legislation directly regulating that kind of travel. Hon. Hem-y B. Brown, former Associate Justice of the Supreme Court of the United States, also considers Congress' power in this respect 2. " Commprno " i<5 flpfinp''' '■" t^e famous case of Gibbons v. Ogden, 22^ U. S. (9 Wheat.) 1, 6 L. Ed. 23, to mean not only traffic but also Inter- course, and it is said in McNaughton Company v. McGirl, 20 Mont. 124, 49 Pac. 651, 38 L. R. A. 367, that com- merce is traffic, but it is something more — it is intercourse. The transpor- tation of passengers is a part of com- merce. Passenger Cases, 48 U. S. (7 How. 283). Commerce is traffic, but it is much more. It embraces also trans- portation by land and water, and all the means and appliances necessarily em- ployed in carrying it on. Chicago & N. W. R. R. Co. V. Fuller, 84 U. S. (17 Wall.) 560, 21 L. Ed. 710. Tlie term "commerce" in its broadest accepta- tion includes not merely traffic but the means and vehicles by which it is prose- cuted. Winder v. Caldwell, 55 U. S. (14 How.) 434, 14 L. Ed. 487. The term embraces all instruincnis hi/ which commerce may &e conducted. Trademark Cases, 100 U, S. 82, 25 L. Ed. 550. But it is well settled that in- surance is not commerce, and logs which are floating down a river uncontrolled are not an element of commerce. Har- rigan v. Connecticut River Lumber Company, 129 Mass. 500. In Pensacola Tel. Company v. West- ern Union Tel. Company, 9G U. S. 1, 24 L. Ed. 708, we have the following enumeration of agencies of travel which may be engaged in interstate travel. and tlie enumeration is made in the order of improved means of transit. The court begins with the liorse, men- tions the stage-coach, sailing vessel, steamboat, railroad, and ends with the telegraph. If automobiles had been in use they might have lioen included if used commercially. In view of an attempt to have Con- gress consider favoiably a federal auto- mobile registration law, the following decision is of interest: In United States v. Colorado & N. W. R. R., decided by the United States Circuit Court of Appeals, Eighth Cir- cuit, 157 Fed. 321, 85 C. C. A. 27, 13 Ann. Cas. 893, 15 L. R. A. (N. S.) 167, the following is from the syllabus by the court: The Safety Appliance Acts (Acts March 2, 1893, chap. 196, 27 Stat. 531, amended by Act April 1, 1896, chap. 87, 29 Stat. 85, U. S. Comp. St. 1901, pp. 3, 174, and Act March 2, 1903, chap. 976, 32 Stat. 103, U. S. Comp. St. Supp. 1907, p. 885), apply to and govern a railroad company en- gaged in interstate commerce which operates entirely within a single State independently of all other carriers. Every part of every transportation of articles of commerce in a continuous passage from a commencement in one State to a prescribed destination in an- other is a transaction of interstate commerce. Congress may lawfully affect inter- state commerce so far as necessary to 94 The Law of Automobiles. doubtful. In the February, 1908, number of the Yale Law Journal he says, concerning the automobile: '^It is very doubtful . . . whether the interstate conunerce clause of the Constitution extends to private carriage not engaged in regu- lar traffic between the States, and only entering them occasion- regulate effectuaUy and completely in- terstate commerce, because the Consti- tution reserved to Congress plenary power to regulate interstate and for- eign commerce, and the Constitution and the Acts of Congress in pursuance thereof are the supreme law of the land. In Lehigh & Wilkes-Barre Coal Co. v. Borough of Junction (N. J. L. 1918), &8 Atl. 806, it is said: "While inter- state commerce necessarily involves in- terstate transportation, the converse is not always true. A railroad or ferry company, for example, which trans- ports persons or property from one State to another, is undoubtedly en- gaged in interstate commercce, and a tax by the State upon owners of vessels or common carriers so transporting per- sons or property has been held void as a regulation of commerce. On the other hand, transportation may be conducted without constituting commerce or traf- fic, which has been defined to be the ex- change of merchandise between indi- viduals, communities or countries, whether directly in the form of barter or by the use of money or other medium of exchange. A manufacturer who sends his goods manufactured in Con- necticut to his own entry port or store in New York city, transports the pro- ducts from one State to another, but the transaction by such owner is not of itself, so far as the owner is concerned, interstate commerce in the sense that the city of New York has no power to tax the goods thus stored and awaiting sale in New York, although the mer- chandise may be intended for a foreign market. The transaction lacks the es- sential element of trade, namely, sale or exchange. The Supreme Court of the United States says, conceniing the commerce over which the Federal government has exclusive control: "Let us inquire what is commerce, the power to regulate which is given to Congress? This ques- tion has been frequently propounded in tliis 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, ever}- species of commercial intercourse among the several States — • but not that commerce ' completely in- ternal,' which is carried on between man and man, in a State, or between differ- ent parts of the same State, and which does not extend to or affect other States. The power to regulate gov- erned. 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 inter- state, commerce, and such discretion is not to be interfered with except where that which is done is in plain violation of the Constitution. . . . Mani- festly, any rule prescribed for the con- duct of interstate commerce, in order to be within the competency of Congress under its power to regulate commerce among the States, must have some real or substantial relation to, or connection with, the commerce regulated." Ter Mr. Justice Harlan, in Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277, 13 Ann. Cas. 764.' Federal Control Over Motoring. 95 ally and irregularly for the purposes of pleasure. . . . The practice of rushing to Congress to obtain legislation of doubt- ful validity is one which ought not to be encouraged, when the States can afford a sufficient remedy." Sec. 87. The right of transit. Since the advent of the new means of transportation, the automobile, pleasure driving has developed wonderfully, throughout the United States. A Saturday or Sunday after- noon drive, which formerly amounted to nothing more exten- sive than traveling a distance of four or five miles, may now, by use of the motor vehicle, consist of a twenty-five mile ride, and across the line into another State. A whole day's auto- mobile drive might, in some instances, take one into more than one State other than his own. Distances have been shortened by the motor vehicle, cities brought closer together and touring through the country necessitating- passage over and across several and man^ States is now prevalent. For an automobilist to suggest a drive between the cities of New York and Philadelphia, for example, would be generally looked upon as a short ride, al- though the drive requires the use of the highways of three States. Correctly it may be said that automobiling to-day is more interstate than purely local within any one particular State's borders. Rhode Island automobilists, probably more than any other citizens, realize this, since the State has a very small area over which the automobilist can travel. The same situation exists in Delaware. Considering the nature of auto- mobile travel and its distinctive interstate character, it is naturally a question paramount in the minds of motorists as to whether the various States of this Union possess the au- thority to enact laws which require non-resident automobilists coming into the State to pay a fee which is in the nature of revenue. In other words, can revenue be collected from tour- ing automobilists by the States through which they travel 1 In considering this question, it must not be forgotten that the United States of America is a nation. It is a country and is sovereign mthin its limits. It is a distinct government the 96 The Law of Automobiles. same as France or Germany. The people of the United States are its citizens. United States citizenship carries with it not only certain duties and responsibilities, but many rights. Some of these rights are inalienable, others are not. It is necessary for uis to start, with these ideas in view, in order properly to understand the status of a United States citizen who wishes to travel across the country by means of a private carriage. We are apt to lose sight of the fact that there is a larger and more important government here than that of the State, although a State is sovereign ^\ithin its proper sphere. Sec. 88. Citizen's right of transit. The question which we will start with will be confined to merit transit from one State to another by a United States or State citizen. Who is there that can deny to the citizen of any State the right to transport himself from one State to the one adjoining? He may either walk, ride behind or on a horse, be carried by an automobile, sailing or power vessel, railroad train and possibly a flying machine, without being compelled to pay one penny for the privilege of so doing. It is the citizen's inalienable right to be allowed to enter another State, to choose another domicile, and, if he desires, to con- stantly pass and repass from one State into another. ''Liberty" which is guaranteed by the Federal Constitution to the people of the various States not only secures this right, but the general fundamental principles of constitutional government give to the citizens the right of transit from State to State. We Avill, if you please, confine the above assertion to transit unaccompanied by any contrivance such as the auto- mobile. Sec. 89. Transit of vehicle. Being convinced that transit of persons cannot be obstructed by the State, let us ask if there can be any restrictions placed upon transit carried on by a mechanical contrivance of ad- mitted dangerous characteristics. At the outset let it be said that the automobile is not dangerous per se. This has been held to be the law in several cases decided by the highest Federal Control Over Motoring. 97 courts in this country. However, it must be admitted that there are certain dangers connected with the operation of automobiles which are not experienced in driving horse-drawn vehicles on the public highways. Therefore, the State pos- sesses the authority under its police powers to regulate auto- mobiling, to prescribe speed limits and to require drivers and owners of motor vehicles to become registered or licensed. It is necessary, in order to regulate automobiling, to pay the ex- penses of the department issuing licenses and registering drivers and owners of automobiles. These expenses naturally should be met by the class of persons regulated and licensed. No quarrel can be picked with any of the States because the support of the motor vehicle departments is placed upon the shoulders of automobilists. But the amount of the fees charged is limited by law^, by the United States Constitution and the common law as found in American judicial decisions. Sec. 90. Limitation on license fees. It is a well settled principle of the law governing license fees and occupation or privilege taxes that the sum charged for the license must not be unreasonable and so large as to make the act performed virtually prohibited. The rule lays it down that the reasonableness of the sum is to be determined according to what the expenses are incident to issuing licenses and maintaining the department in its activities. If, there- fore, the fee charged for registering an automobile or a motor vehicle driver is reasonable according to the standards just mentioned, then it is a just and legal exaction, otherwise it is not.3 Sec. 91. Questions of interstate commerce not in issue. That the State cannot tax interstate commerce is forever settled ; so we need not dwell upon that phase of the question. Moreover, it is extremely doubtful if travel for pleasure is commerce within the meaning of the Federal limitation. We do not need to consider the commerce feature of inter- state travel any longer, and the surprise is great that hereto- 3. See chapter VIIT herein as to registration and licensing. 98 The Law of Automobiles. fore the inviolability of the correlative right of transit has not been advocated. No matter if the travel is by rail or auto- mobile, interstate transit can no more rightfully be taxed than interstate commerce. Here is a new phase of interstate com- munication for the judiciary to deal with, yet it is very old, so old that it has nearly been forgotten. We first heard of this right of transit in 1867 in Crandall v. Nevada."* In this case it was held that a State cannot tax the right of transit through the State by the ordinary means of travel. The opinion of the court in this case was written by Mr. Jus- tice Miller, and is in part as follows : ''The people of the United States constitute one nation. They have a government in which all of them are deeply in- terested. This government has necessarily a capitol estab- lished by law, where its principal operations are conducted. Here sits its Legislature, composed of senators and represen- tatives, from the States and from the people of the States. Here resides the President, directing, through thousands of agents, the execution of the laws over all this vast country. Here is the seat of the supreme judicial power of the nation, to which all its citizens have a right to resort to claim justice at its hands. Here are the great executive departments, ad- ministering the offices of the mails, of the public lands, of the collection and distribution of the public revenues, and of our foreign relations. These are all established and conducted under the admitted powers of the Federal government. ''That government has a right to call to this point any or all of its citizens to aid in its service, as members of the Con- gress, of the courts, of the executive departments, and to fill all its other offices ; and this right cannot he made to depend upon the pleasure of a State over whose territory they must ptt'SS to reach the point where these services must he rendered. "The government, also, has its offices of secondary impor- tance in all other parts of the country. On the seacoasts and on the rivers it has its ports of entry. Li the interior it has its 1-and offices, and its sub-treasuries. In all these it demands the services of its citizens, and is entitled to bring them to 4. 6 Wall (U. S.) 35, 18 L. Ed. 745. Federal Control Over Motorixg. 99 close points from all quarters of the nation, and no power can exist in a State to obstruct this right that would eiuihle it to defeat the purposes for ivhich the government ivas established. "The Federal power has a right to declare and prosecute wars, and, as a necessary incident, to raise and transport troops through and over the territory of any State of the Union. "If this right is dependent in any sense, however limited, upon the pleasure of a State, the government itself may be overthroAvn by an obstruction to its exercise. . . . "But if the government has these rights on her own ac- count, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon the government, or to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has a right to /ree access to its seaports through which all the operations of for- eign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must 2^(^ss in the exercise of it. "The views here advanced are neither novel nor unsup- ported by authority. The question of the taxing poAver of the States, as its exercise has affected the functions of the Fed- eral government, has been repeatedly considered by this court, and the right of the States to impede or embarrass the con- stitutional operations of that government, or the rights ivhich its citizens hold under it, has been uniformly denied.' ' In the opinion of the court the famous case of ^XFcCulloch V. Maryland ^ was commented on and the remarks of Chief Justice Marshall, "that the power to tax involves the power to destroy" were given prominence. Given the power to tax, the extent is unlimited. If a tax of one dollar is legal, a thou- sand dollar tax Avould be lawful. The court adopted and approved of the views expressed in the Passenger Cases, as follows : 5. 4 Wheat. (U. S.) 316. 4 L. Ed. 415. 100 The Law of Automobiles. ** Living as we do under a common government, charged with the great concerns of the whole Union, every citizen of the United States from the most remote States or Territories, is entitled to free access, not only to the principal departments established at Washington, but also to its judicial tribunals and public offices in every State in the Union. For all the great purposes for which the Federal government was formed, we are one people, with one coinmon country." "We are citizens of the United States, and as members of the same community, 7nust have the right to pass and repass through every part of it without interruption, as freely as in our own States." *'And a tax imposed by a State for entering its territories or harbors, is inconsistent with the rights which belong to citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing hut discord and mutual irritation, and they very clearly do not possess it." The automobile is now a common and ordinary mode of interstate travel. There can be no question about this. Cran- dall V. Nevada, it will be particularly noticed, held that the State cannot tax transit carried on by the ordinary modes of travel. Interstate automobile travel clearly comes within the ruling of the court in this case; consequently it cannot con- stitutionally be taxed. But, while it is reasonably clear that property in transit from one State to another is exempt from State taxation, if it be stored for an indefinite time during such transit, at least for natural causes or lack of transportation, it may lawfully be assessed by the State authorities.^ 6. State V. Maxwell Motor Sales Corp. 142 Minn. 226, 171 N. W. 566. Licensing and Registration. lOi CHAPTER VIII. LICENSING AND KEGISTRATION. Section 92. Scope of chapter. 93. Nature of license. 94. Nature of license fee. 95. Purpose' of registration. 96. General power to require registration and licensing. 97. Power of municipal corporations — in general. 98. Power of municipal corporations — licensing power annulled by State. 99. Power of municipal corporations — aljrogation of municipal pOwere by subsequent genera) statute. 100. Power of municipal corporations — territorial applicatiop of ordi- nance. 101. Constitutionality of regulations — in general. 102. Constitutionality of regulations — title. 103. Constitutionality of regulations — interference with ijiterstate com- merce. 104. Constitutionality of regulations — prohibition of use of highways un- til registration. 105. Constitutionality of regulations — license fees beyond cost of regis- tration. 106. Constitutionality of regulations— double taxation. 107. Constitutionality of regulations — exemption from other taxation. 108. Constitutionality of regulations^ — taxation not based on value of property. 109. Discrimination- — in general. 110. Discrimination — between motor vehicles and other i-nnvcyances. 111. Discrimination— different sizes of machines. 112. Discrimination — vehicles used for different purpos<->. 113. Discrimination — dealers in different classr. 114. Discrimination — non-residents. 115. Discrimination — non-resident exemption based on reciprocity. 116. Registration by particular classes of owners — corporations and part- nerships. 117. Registration by particular classes of owners — registration in trade name. 118. Registration by particular classes of owners — dealers. 119. Registration by particular classes of owners — issuance of blank licenses to automobile organization. 120. Registration by particular classes of owners — by pur.haser of ma chine. 121. Registration by particular classes of owners— death of owner. 122. Disposition of license moneys. 123. Vehicles to which regulations are applicable. 124. Display of number plate. 102 The Law of Automobiles. Section 125. Effect of non-registration in actions for injuries — -Massachusetts rule. 126. Effect of non-registration in actions for injuries — general rule. 127. Effect of non-registration in actions for injuries — burden of proof. 128. Certificate as evidence of ownership. Sec. 92. Scope of chapter. The discussion in this chapter covers the registration and licensing of motor vehicles, including such subjects as the power of the State and municipal corporations to require the registration of the machines or to exact license fees for their operation on the public highways. In other chapters are discussed the general powers of the State ^ or municipal divisions ^ to regulate the operation of motor vehicles. And the questions of the registration and licensing of the drivers of vehicles, as distinguished from the machines, are reserved for another chapter.^ So, too, regu- lations particularly relating to conveyances used for hire, such as jitneys, taxicabs, etc., are treated in another chapter."* Criminal prosecutions with reference to the failure of an owner to register his machine, are discussed in another chapter.^ Sec. 93. Nature of license. A license to operate an automobile is merely a privilege.*^ It does not constitute a contract, and hence does not neces- 1. Chapter 5. license, all that the autoist cares about 2. Chapter 6. is his protection under it and the au- 3. Chapter 12. thority it gives him to drive his auto- 4. Chapter 9. mobile. The motor car driver seldom 5. Chapter 27. has any occasion to consider the nature 6. Foshee v. State, 15 Ala. App. 113, of his license and what all his rights 72 So. 685; State, ex rel. McClung v. are under it aside from the privilege Becker (Mo.), 233 S. W. 54. given to him to use his machine. An What an automobile license is.— It is automobile license is, however, some- very generally understood throughout thing more than a mere formality, the United States to-day that in order which can be procured by compliance for one to operate a motor vehicle on with a certain amount of red tape. The the public highways in most of the various automobile acts in the United States it is first necessary to procure a States provide for two kinds of licenses license to do so from the proper au- — perpetual and annual. The perpetual thorities. After having procured this license, of course, is more valuable than Licensing and Registration. 103 sarily pass to a purchaser of the vehicle^ Moreover, as a mere license and not a contract, it may be revoked for cause shown. In some jurisdictions, particularly in England, a procedure is estalDlished for the revocation of motor vehicle licenses.^ The usual registration and licensing system pertains to the machine rather than to the operator thereof. Regulations may, however, he adopted requiring the licensing of chauf- feurs.^ one that is temporary, since the latter necessitates the payment of a fee peri- odically, while the former may be pro- cured and enjoyed upon the payment of but one fee. Whether the license be temporary or perpetual, it is in con- templation of law merely a license — a privilege. But what does such a license mean, and what are the legal rights of the holder of it? We might say that he has no legal rights conferred upon him by the license, and that it is nega- tive in its operation. For without a license he is subject to arrest and crim- inal prosecution ; with it he is immune from interference. In other words the license confers upon him a sort of nega- tive right to be let alone if he other- wise complies with the law. This is really all that the automobilist's license amounts to. For it has been held many times by the highest courts in this country that a license does not consti- tute a contract within the meaning of the Federal Constitution prohibiting a State from passing any law impairing the obligation of contracts, and it is because a license is not a contract that It may be revoked or suspended by legislative authority. 7. Foshce v. State, 15 Ala. App. 113, 72 So. 685. 8. Indorsing conviction on license. — Where the identification plate is not in accordance with the local government board regulations in England there is held to be ' ' an offense in connection with the driving of a motor car" within the meaning of the English Motor Act 1903 (3 Edw. 7, ch. 36), section 4, au- thorizing an indorsement of conviction on the license. Rex v. Gill (K. B. Div.), 100 T. R. (N. S.) 858. So the license may be indorsed on a conviction for exceeding the speed limits in the royal parks, though the regulations creating the speed limits were made after the passing of the Motor Car Act. Rex v. Plowden (K. R. Div.), 100 Law T. R. (N. S.) 856. Allowing a motor car to stand in tlie liighway so as to cause an unneces- sary obstruction is not "an offense in connection with the driving of a motor car ' ' within the meaning of the English Motor Car Act 1903 (3 Edw. 7, ch. 36), sec. 4, subsces. 1, (c) 2, which au- thorizes the court to indorse the parti- culars of a conviction of such act upon the license. Rex v. Justices of West Riding of York (K. B. Div.), 102 Law T. R. (N. S.) 138. When no power to indorse a license to drive a motor car with particulars of the conviction when the holder is convicted of a first or second offense of exceeding a speed limit. Rex v. Marsham, 97 Law T. R. (N. S.) 396. 9. See chapter XII. 104 The Law of Automobiles. Sec. 94. Nature of license fee. The charge imposed for the privilege of operating a motor vehicle on the public highways is not generally considered a tax, but is a mere license or privilege fee.^^ When considered as a tax, it is not deemed a tax on the vehicle as such, but as a tax on the privilege of using the vehicle for transportation along the public highways. That is to say, it is not a tax on property, but is a tax on privilege." A municipal ordinance which requires the registration and numbering of motor vehicles and requires the payment of a fee to cover the value of the number plate furnished by the municipality, is held to constitute, not a license, but merely a regulation.^ 10. Alabama. — Foshee v. State, 15 Ala. App. 113, 72 So. 685. Florida. — Jackson v. Neff, 64 Fla. 326, 332, 60 So. 350. Illinois. — Harder 's Storage & Van Co. V. Chicago, 235 111. 58,85 N. Y. 254. Massachusetts. — Commonwealth v. Boyd, 188 Mass. 79, 74 N. E. 255. Mississippi. — State v. Lawrence, 108 Miss. 291, 66 So. 745. Neto Jersey. — Unwin v. State, 73 N. J, L. 529, 64 Atl. 163, affirmed 75 N. J. L. 50O, 68 Atl. 110. Oklahoma. — Ex parte Shaw, 157 Pac. 900. Tennessee. — Ogilvie v. Harley, 141 Tenn. 392, 210 S. W. 645. Texas. — Atkins v. State Highway Dept. (Civ. App.), 201 S. W. 226. Vermont. — State v. Jarvis, 89 Vt. 239, 95 Atl. 541. 11. Alabama. — Hudgens v. State, 15 Ala. App. 156, 72 So. 605; Foshee v. State (Ala. App.), 72 So. 685. Florida. — Jackson v. Neff, 64 Fla. 326, 60 So. 350. Idaho. — Ex parte Kesslcr, 26 Idaho, 764, 146 Pac. 113. Illinois. — Harder 's Storage & Van Co. V. Chicago, 235 111. 58, 85 N. E. 245. Kentucky. — Smith v. Commonwealth, 175 Ky. 286, 194 S. W. 367. Michigan. — Jasnowski v. Board of Assessors of City of Detroit, 191 Mich. 287, 157 N. W. 891. Mississippi. — State v. Lawrence, 108 Miss. 291, 66 So. 745. Missouri. — State, ex rel. McClung v. Becker (Mo.), 233 S. W. 54. New Jersey. — Unwin v. State, 73 N. J. L. 529, 64 Atl. 163, affirmed 75 N. J. L. 500, 68 Atl. 110. New Mexico. — State v. Ingalls, 18 N. Mex. 211, 135 Pac. 1177. Oklahoma. — Ex parte Phillips, 167 Pac. 221. South Carolina. — Lillard v. Melton, 103 S. Car. 10, 87 S. E. 421. Tennessee. — Wilson v. State, 224 S. W. 168. Washington. — State %'. Collins, 94 Wash. 310, 162 Pac. 556. "A license fee, such as is provided for in this act, may or may not be a tax, depending upon whether its imposition is tied to the police or taxing power of the State. But, giving respondent the benefit of his contemplation that this license fee is imposed under the taxing power of the State, it is clear that it Is not a property tax. but is in the nature of a license or privilege tax." State v. Col- lins, 94 Wash. 310, 162 Pac. 556. 12. People V. Schneider, 139 Mich. G73, 103 N. W. 172, 12 Det. L. N. 32, Licensing and Registration. 105 While ordinarily a licensing statute may be construed as merely a regulation, a more serious question arises when the amount of the license fee is designed to create a fund in ex- cess of the needs for supervision of the machines and the en- forcement of the law. In some jurisdictions it is held that when an excess is thus produced, the act becomes a revenue measure as to the excess," but in other jurisdictions the view is taken that an excess may be raised for the maintenance of the public highways without the law being classed other than as a regulatory measure." Sec. 95. Purpose of re^stration. The reason assigned for the necessity of registration and licensing is that the vehicle should be readily identified in order to debar operators from violating the law and the rights of others, and to enforce the laws regulating the speed, and to hold the operator responsible in cases of accident. The Legislatures have deemed that the best method of identifica- tion, both as to the vehicle and the owner or operator, is by a number on a tag conspicuously attached to the vehicle. In case of any violation of law this furnishes means of identifica- tion, for, from the. number, the name of the owner may be readily ascertained and through him the operator.^^ c^^^^^ 69 L. E. A. 345, 5 Ann. Cas. 790; Unwin 357; Buggies v. State, 130 Md. 553, 87 V State, 73 N. J. L. 529, 64 Atl. 163, Atl. 1080; People v. Schneider, 139 affirmed 75 N. J. L. 500, 68 Atl. 110; Mich. 673, 103 N. W. 172, 12 Det. L. Borough of Applewold v. Dosch. 60 N. 32, 69 L. R. A. 345. 5 Ann. Cas. 790; Pitts. Leg. J. 22. Martin v. Whit* (1910), 1 K. B. 13. Ex parte Schuler, 167 Cal. 282, (Eng.) 665. 139 Pac. 685; Vernor v. Secretary of The Massachusetts Act forbidding State, 179 Mich. 157, 146 N. W. 338; thn operation of an automobile by a Ex parte Mayes (Okla.), 167 Pac. 749. per.son without a license permits an un- See also. State, ex rel. McClung v. licensed person to operate an automo- Becker (Mo.), 233 Mo. 54. bile with a licensed chauffeur. The 14. Ex parte Kessler, 26 Idaho, 764, statute was intended to provide an op- 146 Pac. 113; Smith v. Commonwealth, portunity for persons to learn to use 175 Ky. 286, 194 S. W. 367; Atkins v. an automobile by running It under the State Highway Dept. (Tex. Civ. App.), supervision of a licensed person and 201 S. W. 226. See also section 105. thus acquire skill by practice. Bo^urne 15. See People v. MacWiUiams, 91 v. Whitman, 209 Mass. 155, 95 N. E. App. Div. (N. Y.) 176, 86 N. Y. Supp. 404, 35 L. R. A. (N. S.) 701. 106 The Law of Automobiles. acts are not passed merely for the purpose of revenue but have for their object the protection of the public.^*^ It is not difficult to see that the registration and numbering of auto- mobiles is intimately connected with their safe operation in the State. Many automobiles are precisely alike in external appearance. They are sometimes operated by those whose faces are partially concealed and whose identity is uncertain. Those operators who are most reckless and indifferent — and those are the ones that endanger the safety of others — may violate the laAV with impunity unless some method is adopted by which they or their automobiles may be identified. A pro- vision in a law for registration and numbering is such a method. It is reasonable to believe that, when he knows that Purpose of re-registration. — " The mauifest purpose of requiring registra- tion and the display of official number plates is (1) to accomplish in advance the collection of the license or regis- tration fee, and (2) to furnish a means of identification of the vehicle. The pre-eminent purpose, however, of re- quiring annual re-registration and an- nual number plates (which is the re- quirement involved in the case at bar) is to accomplish the collection of the annual fee. Identification is not aided by mere re-registration or by a change of numbers or plates." State v. Gish, 168 Iowa, 70, 150 N. W. 37. 16. Knight v. Savannah Elec. Co., 20 Ga. App. 719, 93 S. E. 17; Greig v. City of Merritt, 11 Dom. Law Rep. 852, 854, wherein it was said: "I do not think however, that the sole or in- deed the principal reason in the statute for requiring registration and licensing of motors is to secure revenue. There is, I think, a peculiar significance in the fact that the motor must be registered. To secure registration under sec. 11 the applicant must sign an application form which contains full particulars as to the make of the car, and as to the garage or place where the car is kept, with the name in full of the owner, the ap- plicant. When a license is issued, sec. 25 of the Act requires that the motor shall have attached at the back the number of the license, the figures being four inches in height and displayed in a conspicuous place at the back. And now by a more stringent provision of the amending Act of 1913 a specially designed number plate must be dis- played on the front and at the back of the car. The object of such provisions is clearly for the benefit of the public. In the event of the law being violat-ed the offender can be readily identified by the number on his car and brought to justice. The motor car whilst not an outlaw on the highway is yet without doubt a very dangerous machine unless under very careful control. The stat- ute, containing as it does, some drastic provisions affecting one's common law rights and especially so' in the matter of the burden of proof, is clearly framed with an eye to the protection of the public, and the question of reve- nue is, I think, merely incidental in the Act." See also Hughes v. New Haven Taxicab Co., 87 Conn. 416, 87 Atl. 421. See also section 94. Licensing and Registration. 107 the number displayed on the automobile identifies the vehi- cles, fear of discovery and punishment Avill lead the automo- bile driver to observe the requirements of the law.^' Sec. 96. General power to require registration and licensing. There is no dispute as to the general proposition that a State, in the exercise of its police power, has the power to require the registration of motor vehicles and the payment by owners of license fees.^^ This power the State may exer- 17. See People v. Schneider, 139 Mich. 673, 103 N. W. 172, 13 Det. L. N. 32, 69 L. K. A. 345, 5 Auu. Cas. 790. 18. United States. — Hendrick v. State of Maryland, 235 U. S. 610, 35 S, Ct. 140; Kane v. State of New Jersey, 242 U. S. 160, 37 S. Ct. 30. ^ia&OH! a.— Matter of Bozeman, 7 Ala. App. 151, 61 So. 604, 63 So. 201 ; Foahee v. State, 15 Ala. App. 113, 72 So. 685. California. — Ex parte Seliuler, 167 Cal. 282, 139 Pae. 685. Connecticut. — State v. Scheidler, 91 Conn. 234, 99 Atl. 492. District of Columbia. — Mark v. Dis- trict of Columbia, 37 App. D. C. 563, 37 L. E. A. (N. S.) 440. Florida.— Jackson v. Neff, 64 Fla. 326, 60 So. 350. Illinois.— Christy v. Elliott, 216 111. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 3 Ann. Cas. 487, 108 Am. St. Rep. 196; Harder 's Storage & Van Co. v. Chicago, 235 111. 58, 85 N. E. 345; Heartt v. Village of Downer's Grove, 278 111. 92, 115 N. E. 869. Indiana. — Kersey v. Terre Haute, 161 Ind, 471, 68 N. E. 1027. Jowa.— State v. Gish, 168 Iowa, 70, 150 N. W. 37. Kentuchij.— City of Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199; City of Newport v. Merkel Bros. Co., 156 Ky. 580, 161 S. W. 549 ; Smith v. Commonwealth, 175 Ky. 286, 194 S. W. 367. "It is conceded that it is a right inherent in the sovereignty of the State to regulate the use of motor vehicles upon the roads of the State, and it has been so held by many courts." Smith v. Commonwealth, 175 Ky. 286, 194 S. "W. 367. Massachusetts. — Commonwealth v. Boyd 188 Mass. 79, 74 N. E. 255. Michigan. — People v. Schneider, 139 Mich. 673, 103 N. \V. 172, 12 Det. Leg. N. 32, 69 L. R. A. 345, 5 Ann. Cas. 790; Vernor v. Secretary of State, 179 Mich. 157, 146 N. W. 338; Jasnowski V. Board of Assessors of City of De- troit, 191 Mich. 287, 157 N. W. 891. Minnesota. — Park v. City of Duluth, 134 Minn. 296, 159 N. W. 627. "It is not seriously questioned that the legis- lature might impose a wheelage tax upon vehicles. We have no doubt that it might do so. The power of the leg- islature to tax is plenary. It is not dependent on any constitutional grant. The power to tax inheres in the State as an attribute of sovereignty, and is without limit except as restricted by the Constitution." Park v. City of Du- luth, 134 Minn. 296, 159 N. W. 627. Mississippi. — State v. Lawrence, 108 Miss. 291, 66 So. 745. Neiv Jersey. — Unwin v. State, 73 N. J. L. 529, 64 Atl. 163, affirmed 75 N. J. L. 500, 68 At!. 110. New Mexico.— State v. Ingalls, 18 N. Mex. 211, 135 Pac. 1177. Nexo Fort.— Pratt Institute v. City of New York. 183 N. Y. 151, 75 N. E. 108 The Law of Automobiles. cise directly through the means of a statute regulating the use of the public highways by automobilists. Or the State may delegate certain powers in this respect to municipal divisions of the State, who may thereby be authorized to pass suitable regulations for the registration and licensing of motor vehicles.^^ After a delegation of the power to a municipality, it may resume its control over the subject by abrogating the authority of the municipality.^" Constitutional provisions, however, may override the legislative authority, so that it cannot de- prive a municipal corporation of the power of licensing vehi- cles or other^\dse regulating their use within the municipality.^ The taxing and licensing power of the State or municipal divisions thereof is limited, so far as vehicles in the military service of the United States are concerned ; but the fact that one is engaged in running auto busses between a military camp and a nearby city does not necessarily absolve him from the duty of acquiring a license under a State law and paying the license fee on vehicles used for the purpose.^ 1119, 5 Ann. Cas. 198; People v. Mac- 103 S. Car. 10, 87 S. E. 421. Williams, 91 N. T. App. Div. 176, 86 South Dakota.— In re Hoffert, 34 S. N. Y. Suppl. 357; People ex rel. Hainer Dak. 271, 148 N. W. 20, 52 L. R. A. V. Keeper of Prison, 121 App. Div. 645. (N. S.) 949. 106 N. Y. Suppl. 314, affirmed 190 N. Tennessee.— ^i\son v. State, 224 S. Y. 315, 83 N. E. 44; Buffalo v. Lewis, W. 168. 123 App. Div. 163, 108 N. Y. Suppl. Texas. — Ex parte Parr, 82 Tex. Cr. 450, affirmed 192 N. Y. 193, 84 N. E. 525, 200 S. W. 404; Atkins v. State 809; People v. Schoepflin, 78 Misc. 62, Highway Dept. (Civ. App.), 201 S. W. 137 N. Y. Suppl. 675. 226. Oklahoma. — Ex parte Shaw, 157 Pac. Washington. — City of Seattle v. 900; Ex parte Mayes, 167 Pac. 749. King, 74 Wash. 277, 133 Pac. 442; Oregon. — Briedwell v. Henderson, State v. Collins, 94 Wash. 310, 162 Pac. 195 Pac. 575. 556. Pennsylvania. — Oonmwn wealth v. 19. See sections 97-100. Densmore, 29 Pa. Co. Ct. 217; Common 20. Section 99. wealth v. Hawkins, 14 Pa. Dist. Rep. 21. People v. McGraw, 184 Mich. 233 592; Matter of Automobile Acts, 15 150 N. W, 833. Pa. Dist. Rep. 83. 22. Ex parte Marshall (Fla.), 77 St) South Carolina. — Lillard v. Melton, 869. Licensing and Registration. 109 Sec. 97. Power of municipal corporations — in general. The registration and licensing of motor vehicles is pri- marily within the control of the Legislature,^^ and the only power lodged in municipal divisions is such as has been dele- gated b>^ the Legislature to the municipalities.^* The right of a city to levy a license fee upon automobiles can be received only from the Legislature, and must be exer- cised within the limits of the power conferred.^^ By virtue of some statutory provisions, a city is expressly authorized to license vehicles.^^ And under general laws and special char- ter provisions giving municipalities control and regulation of the streets, it may be stated as a general rule, that, unless the power over the registration and licensing of motor vehi- cles is expressly excluded, municipal corporations will have such power." Moreover, it is held that a general authority to regulate vehicles on the municipal streets may be sufficient basis to justify an ordinance requiring the licensing of motor vehicles and the payment of license f ees.^* Thus, an act which empowered a certain city to ** regulate and license all cars, wagons, drays, coaches, omnibuses, and every description of 23. Section 96. dcrson v. Lockett, 157 Ky. 366, 163 S. 24. City of Mobilo v. Gentry, 170 Ala. W. 199. 234, 54 So. 488; Heartt v. Village of 26. Harder 's Storage & Van Co. v. Downer's Grove, 278 111. 92, 115 N. E. Chicago, 235 111. 58, 85 N. E. 245; 869 ; Park v. City of Duluth, 134 Minn. Ayres v. City of Chicago, 239 111. 237, 296, 159 N. W. 627. 87 N. E. 1073; White v. Turner Counties.— /»! Alabanm, counties are (Wash.), 195 Pac. 240. authorized to impose license taxes on 27. Ayres v. City of Chicago, 239 111. commercial vehicles but not on those 237, 87 N. E. 1073; People v. Schneider, used for private use. Mills v. Court 139 Mich. 673, 103 N. W. 172, 12 Det. of Com'rs (Ala.), 85 So. 564; Johnson Leg. N. 32, 69 L. R. A. 345, 5 Ann. Cas. V. State (Ala.), 85 So. 567. See also, 790; Park v. City of Duluth, 134 Minn. McClure v. State (Ala. App.), 88 So. 296, 159 N. W. 627; Wassou v. City of 35. A similar delegation of power has Greenville (Miss.), 86 So. 450; Kella- been sustained in Arhansas. Pine Bluff her v. Portland, 57 Oreg. 575, 112 Pac. Transfer Co. v. Nichol, 140 Ark. 320, 1076: Ex parte Parr, 82 Tex. Cr. 525. 215 S. W. 579. 200 S. W. 404. 25. City of Mobile v. Gentry, 170 28. People v. Schneider, 139 Mich. Ala. 234, 54 So. 488 ; Ex parte Smith, 673, 103 N. W. 172, 12 Det. Leg. N. 32, 33 Cal. App. 161, 164 Pac. 618; City 69 L. R. A. 345, 5 Ann. Cas. 790. See of Newport v. Merkel Bros. Co., 156 also. City of Mayfield v. Carter Hard- Ky. 580, 161 S. W. 549; City of Hen- warn Co. (Ky.), 230 S. W. 298. 110 The Law of Automobiles. carriages," has 'been held to authorize the city to imi30se a license on automobiles, notwithstanding they were unknown when the act was passed.-^ And, under a statute authorizing cities ''To regulate and license the use of carts, drays, wagons, coaches, omnibuses, and every description of car- riages and vehicles kept for hire and to license and regulate the use of the streets of the town or city by persons who use vehicles or solicit or transact business thereon," it was held that a city may by ordinance le\^' a license upon automobiles.^" So, too, a statute authorizing cities to grant licenses for law- ful purposes and to fix the amount to be paid therefor, has been held sufficient authority for an ordinance licensing vehi- cles for hire.^^ Sec. 98. Power of municipal corporations — licensing' power annulled by State. The Legislature having the control of the licensing of motor vehicles throughout the State,^^ j^ay delegate such power to municipalities or it may reserve it to itself. Or, having once delegated such authority, its control over the subject is not exhausted, and it may resume its authority by abrogating the power theretofore granted to municipal officials.^^ Thus, in some States it is provided by statute that municipal corpora- tions shall not pass regulations for the licensing of motor vehicles.^^ Or the right to pass regulations may be subject to limitations.^^ The Legislature may provide that the owner of vehicles shall display thereon no number plate other than 29. Commonwealth v. Hawkins, 14 221. Pa. Dist. Rep. 592. Compare Washing- 34. Barrett v. New YorK, 189 Fed. ton Elec. Vehicle Transp. Co. v. Dis- 268; City of Lincoln v. Dehner, 268 trict of Columbia, 19 App. D. C. 462. HI. 175, 108 N. E. 991; Hiler v. City 30. City of Mobile v. Gentry, 170 of Oxford, 112 Miss. 22, 72 So. 837; Ala. 234, 54 So. 488. State v. Fink (N. Car.), 103 S. E. 16; 31. Seattle v. King, 74 Wash. 277, Ex parte Shaw (Okla.), 157 Pac. 900; 133 Pac. 442. See sections 138-142 as City of Muskogee v. Wilkins (Okla.), to power of municipalities to regulate 175 Pac. 497; City of Bellingham v. vehicles used for hire. Cissna, 44 Wash. 397, 87 Pac. 481. 32. Section 96. 35. Anderson v. Wontworth, 75 Fla. 33. Ex parte Shaw (Okla.), 157 Pac. 300, 78 So. 265. 900; E'x parte Phillips (Okla.), 167 Pac. LICEN8IXG AND REGISTRATION. Ill the one issued by the State officials.^*^ As a general proposi- tion, the State statutes give the authorities of municipal divi- sions greater power over vehicles used for hire, such as jitneys and taxicabs, than over automobiles and business cars.^' Constitutional pro\dsions may affect the power of the Legis- lature. For example, it has been held that a provision of a constitution to the effect that the right of all cities to the reasonable control of their streets is reserved to them, pre- cludes a statute to the effect that local authorities shall have no power to pass or enforce an ordinance requiring from an automobile owner or chauffeur any license or permit for the use of streets.'^ Sec. 99. Power of municipal corporations — abrogation of municipal powers by ^bsequent general statute. It is evident that it is wiser to have a State system for the registration and licensing of motor vehicles, than to permit each separate municipality to have control over the subject. In recent years the tendency of legislation has been to take the licensing power from municipalities and to lodge it in the State authorities. Hence, though municipalities have from time to time been authorized to license the operation of motor vehicles within their territorial limits, it has generally been held that a State statute prescribing a uniform system of registration and licensing throughout the State has the effect of repealing the powers of municipalities and of abrogating all local regulations theretofore enacted.^^ The result reached 36. City of Chicago v. Francis, 262 v. City of Columbus, SO Ohio St. 686, 111. 331, 104 N. E. 662; City of St. 89 N. E. 92. See also, Shrcveport v. Louis V. Williams, 235 Mo. 503, 139 S. Stringfellow, 137 La. 552, 68 So. 951 ; W. 340; Brazier v. Philadelphia, 15 Pa. Heartt v. Village of Downer's Grove, Dist. Kep. 14. See also section 124. 278 111. 92, 115 N. E. 869; Ex parte ^ 37. Section 136. Phillips (Okla.), 167 Pac. 221. 38. People v. McGraw, 184 Mich. 233. Tennsylvanki.—ln Commonwealth v. 130 N. W. 836. Hawkins, 14 Pa. Dist. Rep. 592, the 39. Helena v. Dunlap, 102 Ark. 131, court upheld the validity of an ordi- 143 S. W. 138; Pratt Institute v. City nance (passed by the city of Pittsburg of New York, 183 N. Y. 151, 75 N. E. under the power conferred by the 1119, 5 Ann. Cas. 198; Buffalo v. Lewis, special Act of April 1, 1SS6 [P. L. 565, 192 N. Y. 193, 84 N. E. 809; State v. sec. 71], to regulate and license every Fink (N. Car.), 103 S. E. 16; Frisbie description of carriages) which makes 112 The Law of Automobiles. may be thought to be contrary to the canon of construction that a general act does not impliedly repeal a local or special act; but this rule of construction does not generally apply when it is evident that the general act was intended to cover the entire subject. Where a later act covers the whole sub- ject of earlier acts and embraces new provisions, and the act plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then con- sidered by the Legislature and to prescribe the only rules in respect thereto, it will operate as a repeal of all former stat- utes relating to such subject matter, even if the former acts are not in all respects repugnant to the new act.'^ In some it unlawful for any person to operate, or cause to be operated, upon the streets of the city, an automobile, motor ve- hicle, or other conveyance or wagon, the motive power of which shall be elec- tricity, steam, gasoline, or any source of energy other than human and animal power except upon the conditions, inter alia, of the payment by the owner of an annual license fee of six dollars if the vehicle is intended to carry one or two persons, and a fee of ten dollars if intended to carry more than two per- sons. The court said that the license imposed was not unreasonable, and was uniform upon different kinds of the several classes of vehicles named ; and that was all the law required in that respect. The power conferred upon the city of Pittsburg, Pennsylvania, by the special Act of April 1, 1868 (P. L. 565), to impose a license upon automobiles used in the city streets was not repealed by the Act of April 23, 1903 (P. L. 268), regulating the use of automobiles throughout the State, as the later act contains no repealing clause, and by the provision of the seventh section, to the effect that the amount of license prescribed by the act shall not apply to any city or other municipality in which the authorities have imposed a license fee for the same purpose, indi- cates an intention to preserve to the municipalities any authority previously conferred upon them authorizing the licensing of vehicles. Commonwealth V. Hawkins, 14 Pa. Dist. Rep. 592. 40. Pratt Institute v. City of New York, 183 N. Y. 151, 75 N. E. 1119, 5 Ann. Cas. 198. In Illinois it was held that, though the object of a statute was to take the subject of the regulation of the speed and operation of automobiles out of the hands of the local authorities and to pass a law of general and uniform regulation applicable alike to all munici- palities of the State and its effect was to abrogate all municipal ordinances desig- nated to regulate the use of motor ve- hicles passed prior to the time such law went into force and to deprive such mu- nicipalities of the power to pass such regulating ordinances in the future, yet a Wheel Tax Ordinance, imposing a tax upon different kinds of vehicles, includ- ing automobiles, is within the power of a municipality to subsequently pass where by statute power is conferred upon "The city council in cities, and president and board of trustees in vil- lages ... to direct, license, and control all wagons and other vehicles, conveying loads within the city, or any Licensing and Registration. 113 jurisdictions, the repeal of the State law will not have the effect of reviving the municipal regulation on the subject/^ Sec. 100. Power of municipal corporations — territorial ap- plication of ordinance.' The powers of municipalities, as a general rule, extend only within their territorial limits. Thus, where a statute pro- vided that any person desiring to operate an automobile in a city must procure a license from the license commissioner thereof, and if he desired to operate it in the county outside the city limits he should procure a license from the county clerk of such county, it was held that the owner of an auto- mobile was required to take out a license in each and every county over the roads of which he desired to operate his auto- mobile.*^ One carrying passengers for hire, though procuring a license in the city where its principal business is conducted, may be required to take out a license under the regulations of other cities through which he may transport passengers." Considerable difficult}^ may be experienced relative to the powers of municipalities over vehicles traveling between points within the city and points outside of its boundaries. In one State, it has been held that a licensing regulation applies to motor vehicles using the municipal streets for travel be- tween points within and points without its limits.''* But in another State, the application of a regulation in such cases has been denied.*^ Where one is engaged in carrying passen- gers between two points both outside of a city, though the course of travel passes through the city, it has been held that his acts do not constitute a ''business transacted and carried on in such city," within the meaning of a statute permitting the city to license such business; and the fact that he may particular class of such wagons, and Ohio St. 686, 89 N. E. 92. other vehicles, and prescribe the width 42. State v. Cobb, 113 Mo. App. 156, and tire of the same, the license fee, 87 S. W. 551. when collected, to be kept as a sepa- 43. Opydyke v. City of Annistou rate fund and used only for paying (Ala. App.), 78 So. 634. the cost and expense of street or alley 44. City of Carterville v. Blystone, improvement or repair." Ayres v. City 160 Mo. App. 191, 141 S. W. 701. of Chicago, 239 111. 237, 87 N. E. 1073. 45. McDonald v. City of Paragould, 41. Frisbie v. City of Columbus, 80 120 Ark. 226, 179 S. W. 335. 8 114 The Law of Automobiles. incidentally stop in the city does not change the situation/*' A resident of a municipality cannot object to an ordinance because it would impose burdens on non-residents.*^ Sec. 101. Constitutionality of regulations — in general. Eegulations relative to the registration and licensing of motor vehicles must be in accord with the State and Federal constitutions, whether the regulation is one enacted by the Legislature of the State or by a municipal body."^ But, except in peculiar instances or under unusual constitutional require- ments, the regulations have generally been sustained.*^ For 46. Ex parte Smith, 33 Cal. App. 161, 164 Pac. 618, wherein it was said: "The business conducted by petitioner, as alleged in violation of the ordinance, is that of transporting passengers for hire, not in the city, but between term- ini both of which are outside thereof, incidental to, connected with, and as a part of which a number of facts other than transportation, such as soliciting business, taking on and discharging passengers, collecting fares, and caring for their welfare enroute, are necessary to be performed. The transportation of the passengers over any particular part of the public highway is one of the incidents of the business, but it no more constitutes the business than does the collection of their fares. Hence it can- not be said that the carrying of pas- sengers for hire from Los Angeles to Bakersfield by means of a motor ve- hicle operated over the public highway, a part of which extends through Tropico, where no stops are made, nor any of the incidental acts of such transportation performed other than traveling along the streets, constitutes a business "transacted and carried on in such city." Adopting the contrary view urged by respondent, the con- clusion must logically follow that a physician, grocer, plumber, indeed, every one engaged in a professional calling or business in one city, having occasion to make a professional call or deliver goods to a purchaser, to do which required him to travel upon the highways through other cities, could un- der a like provision of the ordinance to that here involved be subjected to a tax in the guise of a license levied upon the theory that such use of the streets constituted a business transacted and carried on in the different cities through which he passed. While the use of the streets may be regulated, the city has no power to convert them into toll roads, and thus exact tribute from those who in the conduct of business elsewhere have occasion to use them solely as highways. ' ' 47. Wasson v. City of Greenville (Miss.), 86 So. 450. 48. Pointing out constitutional pro- vision violated. — Where it was at- tempted to question the constitution- ality of the Missouri Automobile Act of 1905, which required a license on the part of the persons desiring to operate an automobile, the court declined to consider the question, because neither the article nor the section of the con- stitution claimed to have been violated was pointed out or referred to in the defendant 's motions or briefs. State v. Cobb, 113 Mo. App. 156, 87 S. W. 551. 49. Section 97. LiCEXSiXG AXD Registration. 115 example, the requirement that a number plate shall be attached to the machine so as to identify it, does not violate the con- stitutional guarantee against unreasonable searches or the provision that no person shall be compelled to be a witness against himself or deprived of his liberty or property without due process of law.^'^ A statute providing that the ''license tax" imposed shall be paid to the "tax collector" of the county, is not in conflict with a constitutional provision to the effect that the county judge shall issue all licenses recpired by law to be issued in the county .^^ But, under a constitutional provision forbidding the imposition of taxes on counties or the inhabitants thereof for county purposes, the Legislature cannot enact a law imposing certain taxes in the form of license fees on the owners of motor vehicles and distributing part of such moneys to the road fund of the several counties.^' But, when the license fee is not a tax, but merely a regulatory requirement imder the police power, there is no objection to a division of the fees among municipalities.^^ Sec. 102. Constitutionality of regulations — title. Constitutions in most States contain provisions respecting the titles of proposed laws, and an act which is not properly entitled is void. Thus, it is sometimes required that acts shall contain but one subject and that shall be expressed in the title.^* But an act for the regulation of motor vehicles and 50. People v. Schneider, 130 Mich. the counties presumably for use upon 673 103 N. W. 172, 12 Det. L. N. 32, the public roads under county super- 69 L. E. A. 345, 5 Ann. Cas. 790; vision. It has been held that license People V. MacWillianis, 91 K Y. App. taxes for county purposes are within Div. 176, 86 N. Y. Suppl. 357. the inhibitions of the section of the 51. Jackson v. Xeff, 64 Fla. 326, 60 Constitution last cited, and that the So. 350. whole subject of county taxes has been 52. Ex parte Schuler, 167 Cal. 282, delegated to the local authorities." 139 Pac. 6S5, wherein it was said: 53. Ex parte Shaw (Okla.), 157 Pac. "The Motor Vehicle Act imposes a tax 900. upon the inhabitants and property in 54. See People v. Sargent, 254 111. every county and city and county in 514, 98 X. E. 959. the State for the purpose, among Defective title of Act. — See Common- others of creating a fund, one-half of wealth v. Densmore, 13 Pa. Dist. Rep. which, less expenses of administration, 639, 29 Pa. Ct. Rep. 217, holding that shall be paid into the road funds of the provisions of the Pennsylvania Act. 116 The Law of Automobiles. entitled in that manner, is not invalid because it also pro- vides for the disposition of license fees received under the statute.''^ Constitutional provisions relative to the entitling of acts, do not generally apply to municipal ordinances.^^ Sec. 103. Constitutionality of regulations — interference with interstate commerce. So long as there is no national legislation relative to the registering and licensing of motor vehicles, a State statute April 23, 1903 (P. L. 268), requiring the owners of automobiles to take out license, was so uncertain that a con- viction for the violation could not be sustained in view of the fact that there is nothing in the act as to what the license shall contain, and that the title of the act refers to the licensing of "operators" and not "owners" of automobiles. See also In re Automobile Acts, 15 Pa. Dist. Rep. 83. 55. Smith v. Commonwealth, 175 Ky. 286, 194 S. W. 367 ; Jasnowski v. Board of Assessors of City of Detroit, 191 Mich. 287, 157 N. W. 891; Common- wealth ex rel. Bell v. Powell, 249 Pa. St. 144, 94 Atl. 746. "Because sub- section 14 and section 27 provide for the payment of the license fees into the State road fund and the title of the act provides only for the regulations, licensing, and governing the use of motor vehicles, it is insisted that the title of the act is only broad enough to justify an act strictly for the regula- tion of motor vehicles and that the pay- ment of the license fees into the State road fund is the setting apart of the fees for a revenue purpose — that is, the improvement of the public highways — and for that reason the act relates to two subjects and therefore is void. Without, at this point, entering into any discussion as to whether the statute is one enacted in the exercise of the po- lice power or is really a statute enacted for revenue purposes, only, under the guise of au exercise of the police power, it will be first determined whether the statute, in any of its provisions, is con- trary to section 51 of the Constitution, and the other questions involved will be hereafter adverted to. The use of motor vehicles consists in driving them upon the highways of the State. No other use is contemplated for such ve- hicles. To "license" necessarily means to grant a privilege which Is otherwise withheld. To license a vehicle must be either to grant the privilege of its own ership or its use. The title of the act contemplates licensing the use of them, or else the expression in it to "govern the use of motor vehicles" would be without signification or meaning. Hence the patent meaning of the title is to regulate, permit, and govern the use of motor vehicles upon the roads. Such a title relates to only one subject. To the ordinary mind, to license the privilege of using property, in a cer- tain way, contemplates the exacting of fees or a tax for such privilege. The general rule often declared in determin- ing whether a legislative act is invalid under the provisions of section 51 of the Constitution is, if all the provisions of an act relate to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, it is sufficient." Smith v. Com- monwealth, 175 Ky. 286, 194 S. W. 367. 56. Ex parte Parr, 82 Tex. Cr. 525, 200 S. W. 404. liicENsixV(j AND Rp:gistratiox, 117 on the subject is not contrary to the commerce clause of the Federal constitution, although vehicles engaged in interstate commerce may be more or less affected thereby.^' A State has the power to enact a motor vehicle law which will impose a license fee on non-residents who may use the highways of such State/^ But is doubtful if a municipality can impose a license fee for a jitney or bus which is used solely for the carriage of passengers from a city in one State to a city in another.^^ Sec. 104. Constitutionality of regulations — prohibition of use of highways until registration. Where the State has enacted a registration system for motor vehicles, it may properly enact that no person shall 57. Ilendrick v. Maryland, 235 U. S. 610, 622, 35 S. Ct. 140, wherein it was said: "The movement of motor ve- hicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destruc tive to the ways themselves. Their suc- cess depends on good roads, the con- struction and maintenance of which are exceedingly expensive ; and in recent years insistent demands have l>een made upon the States for V^etter facilities, especially by the ever-increasing num- ber of those who own such vehicles. As is well-known, in order to meet this de- mand and accommodate the growing traffic the State of Maryland has built and is maintaining a system of im- proved roadways. Primarily for the en- forcement of good order, and the pro- tection of those within its own juris- diction the State put into effect the above-described general regulations, including requirements for registration and licenses. A further evident pur- pose was to secure some compensation for the use of facilities provided at great cost from the class for whose needs they are essential and whose operations over them are peculiarly in jiuious. In the absence of national legislation covering the subject a State may rightfully prescribe uniform regu- lations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — - those moving in interstate commerce as well as others. And to this end it may require the registration of such ve- hicles 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 difficulty of control. This is but an exercise of the police power uniformly recognized as belong- ing to the States and essential to the preservation of the health, safety and comfort of their citizens; and it doe3 not constitute a direct and material burden on interstate commerce. The reasonableness of the State's action is always subject to inquiry in so far as it effects interstate commerce, and in that regard it is likewise subordinate to the will of Congress." 58. Kane v. State of New Jersey. 242 U. S. 160, 37 S. Ct. 30. 59. Commonwealth v. O'Neil, 233 Mass. 535, 24 N. E. 482. 118 The Law of Automobiles. drive a motor vehicle upon the public highways without hav- ing the same properly registered.^^ But where the owner of an automobile has duly registered the same but, on account of the failure of the State authorities has not received a num- ber plate, it has been held that he can operate the machine under the plates for the previous year."^ Sec. 105. Constitutionality of regulations — license fees be- yond cost of registration. The courts are not in agreement as to the effect of fixing the license fees at a sum greater than is necessary for the super- vision of motor vehicles and the enforcement of the statute. Where the license fees imposed by a statute are greater than 60. See Matter of Automobile Acts, 15 Pa. Dist. Rep. 83. 61. State V. Gish, 168 Iowa, 70, 150 N. W. 37, wherein it was said: "Tak- ing the entire legislative act now under consideration, it is manifestly a regula- tion of the use of motor vehicles and not an attempted prohibition thereof. It ought therefore to be construed con- sistently with its character in that re- gard. The gist of the violation, there- fore, must be, not the mere use of the motor vehicle by the owner, but the failure of the owner to perform the statutory duties laid upon him as condi- tions precedent to its use. In order that the o^^^ler may be constitutionally precluded from the use of his vehicle, he must himself be found In default in the performance of some statutory duty imposed upon him as a condition pre- cedent to its use. To compel the owner to desist from the use of his vehicle for an indefinite length of time because of the inability of the official machinery of the State to furnish him the number plates, as contemplated by the statute, w6uld, of itself, amount to a very prac- tical penalty, which might operate more seriously upon him than the maxi- mum fine imposed by the statute. If the legislature is without power to im- post upon him a direct penalty for the mere default or failure of another, the statute ought not to be construed so as to impose an indirect penalty upon him under the same circumstances and with- out any default on his own part. The owner's right to the use of his ve- hicle after complying with the statutory duties imposed upon him is a substan- tial property riglit. It is common knowledge that the daily business of thousands of people in the State is de- pendent upon the daily use of such ve- liicles. It is a matter of public notor- iety, also, that the machinery provided by the State for the furnishing of num- ber plates has sometimes proved inade- quate to meet the demands upon it, and that the Secretary of State, without fault on his own part, has been unable sometimes to furnish number plates to those entitled to them without long de- lay. The construction of the statute which is contended for by the State would require many thousands of ve- hicles to stand unused waiting for some belated factory to perform its broken contract with the Secretary of State. These considerations should not be over- looked in ascertaining the legislative intent, because these are conditions which arise naturally out of the practi- cal operation of the law." Licensing and Registration. 119 is required for the enforcement of the regulations imposed by the statute, the act cannot ahvays be construed solely as a police regulation, but as to the excess received in some States, the statute is considered as a reveime measure,'^^ ^nd its validity is determined according to the rules which apply to revenue acts, and not by those rules which apply to police regu- lations.*'^ Under the constitutions of some States, a license fee cannot be imposed for the purpose of raising revenue ;«* and a fee which is unreasonable as a police regulation is un- collectible.^" The question of what constitutes a reasonable 62. Ex imrte Schuler, 167 Cal. 282, 139 Pac. G85. See also section 94. 63. Ex parte Schuler, 167 Cal. 282, 139 Pac. 685; City of Muskogee v. AVilkins (Okla.), 175 Pac. 497. ''The Attorney-General contends that, because a police measure will produce a vast amount of revenue that fact cannot af- fect the validity of the act if the power to pass either a police or a revenue law existed at the time of its passage. That the act was passed, in part as a police measure, there can Tje small doubt. Its title characterizes it as an act 'to regulate the use and operation of vehicles,' and many of its provisions are regulatory in their nature. That its exactions go far beyond the reason- able limits of a mere police measure we have no doubt. It must be conceded, of course, that the term 'police power' is a very broad and flexible one and that the courts are by no means narrow and 'technical' (as the common expression is) in their definition of that power, but where the legislature has clearly transgressed its authority and has passed a measure for purposes not within the reasonable scope of laws for the preservation of the public safety, health, or comfort, the courts have been compelled so to declare. The necessary expense involved in the regulatory pro- visions of the Motor Vehicle Act cannot be very great. The small initial ap- propriations for the extra clerical and other help to Ijc employed in the State Treasurer's office and by the depart- ment of engineering indicate that the legislature anticipated no great outlay in the collection of fees, ascertainment of horse power of motor vehicles, supply of stationery, numbers, and other things necessary in the carrying out of the purely police features of the statute. The repair of public roads is not a police measure, yet it is evident that the bill was passed for the principal purpose of raising revenue for use in the upkeep of such highways." Ex parte Schuler, 167 Cal. 232, 139 Pac. 685. 64. Ex parte Mayes (Okla.), 167 Pac. 749. 65. Vernor v. Secretary of State, 179 Mich. 157, 146 N. W. 338; State v. Lawrence, 105 Miss. 58, 61 So. 975. "A license is issued under the police power of the authority which grants it. If the fee required for the license is in- tended for revenue, its exaction is an exercise of the power of taxation. . . . To be sustained, the act we are liere considering must be held to be one for regulation only, and not as a means primarily of producing revenue. Such a measure will be upheld by the courts when plainly intended as a police regu- lation, and the revenue derived there- from is not disproportionate to the cost of issuing the license, and the regula- tion of the business to which it applies. . . . Anvthing in excess of an 120 The Law of Automobiles. fee in such States is a matter which depends largely upon legislative discretion,^*' but is, nevertheless, a question of fact depending on the particular circumstances, and if the amount is out of proportion to the expense involved, it will be declared to be a tax.^" It will be presumed that the amount of a license fee is reasonable, unless the contrary appears upon the face of the law itself or is established by proper evidence."^ Of course, if the Legislature has power to raise revenue by license taxes, there is no necessity for drawing a fine line of demarca- tion between police regulations and revenue acts.^^ In other States, it is thought that, by reason of the injuri- ous effects of motor vehicles to the public highways, an in- creased license fee which will furnish a fund for the repair and maintenance of the public highways is within the police power of regulation ; and its validity is determined according to its status as a police regulation rather than as a revenue act. In the latter case, the State may impose a license which will not only pay the expense of administration and super- vision of the law, but will leave a surplus to go into the gen- eral fund of the State for the maintenance of highways.™ amount which will defray such neces- Jersey, 242 U. S. 160, 37 S. Ct. 30. sary expense cannot be imposed under ' ' The principal, which it seems is the police power, because it then be- enumerated, is that it is within the comes a revenue measure." Vernor v. police power of the State to exact a Secretary of State, 179 Mich. 157, 146 license tax in excess of the costs, of N. W. 338. regulation and supervision, where the 66. Vernor v. Secretary of State, 179 subject is one within the police power, Mich. 157, 146 N. W. 338. and to apply the excess to the remedy- 67. Henderson v. Lockett, 157 Ky. ing of the extraordinary and baleful 366, 163 S. W. 199; Vernor v. Secre effects of the exercise of the taxed tary of State, 179 Mich. 157, 146 N. W. privilege, as the applicaton of the 338. tax upon the privilege of keeping dogs 68. Vernor v. Secretary of State, 179 to paying for their destruction of Mich. 157, 146 N. W. 338. sheep, and the tax upon the privilege 69. Stale v. Ingalls, IS Mex. 211, 135 of operating motor vehicles upon the Pac. 1177. highways to repairing the damages 70. Smith v. Commonwealth, 175 Ky. to such highways, which are pecu- 286, 194 S. W. 367; Saviers v. Smith liarly the work of such vehicles, and (Ohio), 128 N. E. 269; Atkins v. State in excess of that wrought by other Highway Dept. (Tex. Civ. App.), 201 vehicles. This line of cases has held 8. W. 266. Compare City of Hender- that the regulation of the use of the son v. Lockett, 157 Ky. 366, 163 S. W. motor vehicles upon the public high- 199. See also Kane v. State of New ways was authorized under the police Licensing and Registration. 121 Sec. 106. Constitutionality of regulations — double taxation. '^ Double" taxation is condemned by the courts. Double taxation occurs when the same property is taxed twice by the same government during the same period." But the fact that motor vehicles are subject to an ad valorem tax on their value and also subject to a license fee for the operation on the public highways, does not constitute double taxation, for the two are levied on separate things, one on property and the other on a privilege to use the highways.'^ power, and that a license fee could be exacted in excess of the cost of the registration and supervision of the vehicles, whero the funds arising from the license taxes were devoted exclu- sively to the improvement and repair- ing of the public highways, and that it was proper to levy a graduated license tax in accordance witli the horse power of the vehicle, which would he a tax upon each of them reasonably coraniensurate with its power of destruction to the highways. This is upheld upon the principle that such a graduated license tax in ex- cess of the necessarj- cost of registra- tion and supervision of the vehicles is in the nature of a toll exacted of the vehicles for the privilege of the use of the roads, and a tax in propor- tion to their power of destruction was a just and reasonable basis upon which to levy the tax. The require- ment that the motor vehicle should contribute to the upkeep of the pub- lic highways in proportion to their power to destroy them, in excess of other vehicles, which are used upon the roads, appeals to the sense of justice and fairness; and hence we conclude that it is within the police power of the State and is a valid ex- ercise of that power to enact a statute Buch as the one in question, where the primary purpose is for tlie regulation and control of motor vehicles, and to impose a license tax upon their use of the public highways, where the tax, after the expenses of the registration and supervision are fiatis.fied, goes ex- clusively to the upkeep of the high- ways and to remedy the. injuries. which the vcJiicles liave caused, pro- vided the license tax is not an un- reasonable one, and the one fixed by the statute does not appear to be unreasonable, when comi>ared witli what is exacted in many other States. Sinith v. Commonwealth, ^~'^ Ky. 280, 194 S. W. 367. 71. Smith v. Commoinvealth. 175 Ky. 286, 194 S. W. 367. 72. Alabama. — State v. Strawbridge (Ala. App. ), 76 .So. 479; Hudgena v. State. 1;") Ala. App. 156, 72 So. 605. Arkansas. — Pine 151ufl" Transfer Co. v. Nichol, 140 Ark. 320, 215 S. W. 579. California. — Ex parte Schuler, 167 Cal. 282, 139 Pac. 685. District of Columbia. — Mark v. Dis- trict of Columbia, 37 App. D. C. 563. 37 L. R. A. (N. S.) 440. Florida. — Jackson v. Neff, 64 Fla. 326, 60 So. 350. Illinois. — Harder's Storage &. \'^an Co. V. Chicago, 235 111. 58, 85 N. E. 245. 122 The Law of Automobiles. Sec. 107. Constitutionality of regulations — exemption from other taxation. As a general proposition the State had plenary power in deciding what property shall be exempt from taxation.'^ Thus, the Legislature may, as a general proposition, enact, that, when the owner has paid the required license fee for the regis- tration of his automobile, he shall be exempt from further taxation on the machine.'^* Such a statute will bar other taxa- tion of motor vehicles by municipal corporations, but it will not necessarily preclude a municipality from imposing a license fee on hackmen.'^^ In this connection it is also decided Kentucky. — " Double taxation, how- ever, only arises when the same prop- erty is taxed twice, when it ought to •have been taxed but once, and the second tax must be imposed upon the same property by the same authority during the same taxing 'period. . . . The license tax, however, authorized by the statute in question is not a tax upon the property in the motor vehicle, but it is a tax upon tlie privi- lege of using tlie vehicle upon the public roads. It has been continu- ously held, both in this State and elsewhere, that a license tax for the exercise of a privilege is not double taxation, although the property, which is used in enjoying the privileges, ibears an ad valorem tax, and there is no constitutional objection to the levj'ing of iboth." Smith v. Common- -wealth, 175 Ky. 286, 194 S. W. 367. 2Vew Mexico. — ^State v. Ingalls, 18 N. Mex. 311, 135 Pac. 1177. Tennessee. — Wilson v. State, 224 S. W. 168. See also section 94. 73. " It is within the power of the legislature to exempt from other forms of taxation property which pays a specific tax, and this is true whether the specific tax is levied upon the property itself or upon the right to use the property in a certain way." Jasnowski v. Board of Assessors of City of Detroit, 191 Mich. 287, 157 N. W. 891. See also sections 62, 63. 74. Achenbach v. Kincaid, 25 Idaho, 768, 140 Pac. 529; Ex parte Kessler, 26 Idaho, 764, 146 Pac. 113; Jas- nowski V. Board of Assessors of City of Detroit, 191 Mich. 287, 157 X. W. 891; State ex rel. City of Fargo v, Wetz (X. Dak.), 168 N. W. 835, 5 A. :L. R. 731; Ex parte Shaw (Okla.), 157 Pac. 900. See also Matter of Bozeman, 7 Ala. App. 151, 61 So. 604, 63 So. 201. " It may well be assumed that the legis- lature gave heed to the growing de- mand among the people of the State for the improved higliways and con- eluded tliat the motor vehicles, which were largely responsible for tliat de- mand, should bear the expense of the betterments, and accordingly imposed this form of contribution. The ques- tion as to whether this tax should be ill lieu of, or in addition to, all other forms of taxation, was one which ap- piealed to the discretion of the legis- lature. Having exercised that dis- cretion, it is not for tbe courts to declare that it did not execute it wisely or justly." Jasnowski v. Board of Assessors of City of Detroit, 191 Mich. 287, 157 N. W. 891. 75. State v. Jarvis, 89 Vt. 239, 95 Atl. 541." See also section 139. LU'ENSIXG AM) ReGISTHATIOX. 123 in CaUfornia that under a constitutional provision taxing property used in the operation oi* their business 'hy public ser- vice corporations and providing that "such taxes shall be in lieu of all other taxes and licenses, State, county and muni- cipal," such a corporation is exempt from the payment of a license tax upon motor vehicles used by it in the operation of its business."^ Sec. 108. Constitutionality of regulations — taxation not based on value of property. Constitutional jorovisions in some States require that taxes shall be levied on a uniform and equal rate of assessment on all property in the State according to its money value. Of course, license fees for the operation of motor vehicles are not levied on such machines according to their money value, but are levied according to their use or their horse power or some other system which differentiates machines of different sizes and classes. But so long as the courts can say that the license fee is not a tax — and this is the view taken unless the fee is so large that it seems designed to afford revenue as such" — the statute imposing it is enforceable.'^ Constitu- tional provisions of that nature are construed as applicable only to property taxes, and not to occupation, privilege, or license taxes.''^ But, when the tax is raised for revenue, not 76. Pacific Gas & Electric Co. v. taxes for general purposes, and has no Roberts, 168 Cal. 420. 143 Pac. 700. relation to privilege taxes." State v. 77. .Section lOo. Tjawrence, 108 :\Iiss. 201. 66 So. 745. 78. Idaho — Ex parte Kessler, 26 yew Mexico. — State v. Ingalls, 18 Idaho, 764, 146 Pac. 113. X. Mex. 211, 135 Pac. 1177. Mississippi. — ^State v. Lawrence, 108 North DaJcota. — State ex rel. City Miss. 291, 66 So. 745. "It is also of Fargo v. Wetz, 168 X. W. 835, 5 argued that the act is void because A. L. E. 731. there is a lack of uniformity and Oklahoma. — Ex parte Shaw, 157 equality according to value in the prop- Pac. 900. erty which is sought to be taxed. As Texas. — Atkins v. State Highway we have already said, it is not the prop- Dept. (Civ. App.), 201 S. W. 226. erty taxed, but the privilege of using Washington. — iState v. Collins, 94 the property, motor vehicles and cycles. Wash. 310, 162 Pao. 556. on the public roads which is taxed. The 79. State v. Collins, 94 Wash. 310, equality and uniformity clause of the 162 Pac. 556. Constitution applies only to ad valorem 124 The Law of Automobiles. for regulation, an entirely different constitutional situation is presented.^* Sec. 109. Discrimination — in general. One of the objections frequently made to automobile legis- lation is that it is discriminatory and imposes burdens on the automobile which are not imposed on travelers in general, or that it imposes greater burdens on some automobilists than on others. The Federal Constitution prohibits the States to enact laws which deny to persons the equal protection of the State laws. This constitutional provision makes it illegal for any State to arbitrarily pick out one class of persons and legislate against them concerning any subject. But such dis- crimination must be arbitrary, not based upon any logical or reasonable cause for distinction in order to be illegal. Legis- lation affecting merely one class, so long as those in the same class are affected alike, is not objectionable, if the classifica- tion is founded upon a reasonable basis.^^ Exact equality in the operation of the regulation or in the classification cannot be attained, for that is impossible; but the classification is proper if it is made on a reasonable basis.^^ xhe classification need not be either logically appropriate or scientifically ac- curate. It is enough if it acts impartially within the class.*^ It is clear that motor vehicles may be put into a distinct class and regulations adopted which will apply to no other class of conveyances.^* Sec. 110. Discrimination — between motor vehicles and other conveyances. A motor vehicle is unlike any other means of transportation used on public highways, and hence there is no constitutional objection, so far as the claim of special or class legislation is so. Ex jHM-te Mayes (Okla.), 167 82. Park v. City of Duluth, 134 Pac. 749. Minn. 296, 159 N. W. 627 ; Kellaher 81. Hudgens v. State, 15 Ala. App. v. Portland, 57 Oreg. 575, 112 Pac. . 156, 72 So. 605 ; Helena v. Dunlap, 102 1076. Ark. 131, 143 S. W. 138; Park v. aty 83. Mark v. District of Columbia, of Duluth, 134 Minn. 296, 159 N. W. 37 App. D. C. 563, 37 L. R. A. (N. S.) 627; Kellaher v. Portland, 57 Greg. 440. 575, 112 Pac. 1076. - 84. Section 110. LiCEXSING AND REGISTRATION. 125 concerned, in making a registration system or other regula- tions applicable to such machines and not to other means of travel.^^ The automobile is in a class by itself, and the users of such machines are in a class by themselves ; and legislation in recognition of this condition is based upon a solid, easily recognized distinction.^ Automobiles may be excluded from a scheme of municipal taxation in the exercise of the power of a municipal corporation to classify vehicles for the purpose of a vehicle tax ordinance.^^ But it has been held to be an un- reasonable discrimination to imi>ose a license fee on horse- dra^m delivery wagons and trucks without imposing a fee on those operated by their own motive power.^ Sec. 111. Discrimination — different sizes of machines. There is a logical connection between the weight and power of different motor vehicles and the damage to the highways or 85. Arkansas. — Helena v. Dunlap, 102 Ark. 131, 136, 143 S. W. 138. California. — Ex parte Schuler, 167 Cal. 282, 139 Pac. 685. Illinois. — Christy v. Elliott, 216 111. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 3 N. Ca3. 487, 108 Am. St. Rep. 196; Westfalls, etc., Express Co. V. City of Cliicago, 280 111. 318, 117 N. E. 439; Slade v. City of Oliicago, 1 111. Cir. Ct. Rep. 520. Massachusetts. — Commonwealth v. Boyd, 188 Mass. 79, 74 N. E. 255. Michigan. — People v. Schneider, 139 Mich. 673, 103 N. W. 173, 12 Det. L. N. 32, 69 L. R. A. 345, 5 Ann. Cas. 790. Mississippi. — State v. Lawrence, 108 Miss. 291, 66 So. 745. New Jersey. — Unwin v. State, 73 N. J. L. 529, 64 Atl. 163, affirmed State V. Unwin, 75 N. J. L. 500, 68 Atl. 110. New Mexico. — State v. Ingalls, 18 N. Mex. 211, 135 Pac. 1177. New York. — People v. MacWilliaras, 91 App. Div. 176, 86 N. Y. Suppl. 357. Ofeio.— Allen v. Smith, 84 Oh. St. 283, 95 N. E. 829, Ann. Cas. 1912 C. 611. Pennsylvania. — Commonwealth v. Densomer, 13 Pa. Dist. Rep. 639. South Dakota. — In re Hoffert, 34 S. Dak. 271, 148 N". W. 20, 50 L. R. A. (N. S.) 949. The Missouri law of 1903, p. 162, relating to the operation and speed of automobiles on the highway of the State, fixing the amount of license, and prescribing a penalty for violating the same, is not unconstitutional as class legislation, in that it discriminates against certain users of the highway. State V. Swagerty, 203 Mo. 517, 102 S. W. 483, 10 L. R. A. (N". S.) 601, 11 Ann. Cas. 725. 86. Westfalls, etc.. Express Co. v. City of Chicago, 280 111. 318, 117 N. E. 439; Slade v. City of Chicago, 1 III. Cir. Ct. Rep. 520; Allen v. Smith, 84 Ohio St. 283, 95 N. E. 829, Ann. Cas. 1912 C. 611, construing Act May 11, 1908, 99 Ohio Laws, 538. 87. Kersey v. Terre Haute, 161 Ind. 471, 68 N. E. 1027. 88. Kellaher v. Portland, 57 Oreg. 575, 112 Pac. 1076. 126 The Law of Automobiles. to other travelers which may be occasioned through their operation.^^ Hence, it is not an unjust discrimination to grade the license fees for motor vehicles according to the horse power of the machines; the greater the horse power, the larger the fee.^° So, too, an excise tax on automobiles in the District of Columbia, graduated according to the seating capacity of the machines, has been sustained.^^ Sec. 112. Discrimination — vehicles used for different pur- poses. The different uses to which motor vehicles may be put, justi- fies a classification of the machines along such lines, and the imposition of larger fees on vehicles used for some purposes than against those used for other purposes.^^ Hence the li- cense fee for a business truck may be different from those im- posed on other motor vehicles.^^ Or tractors may be exempted 89. Ex parte Schuler, 167 Cal. 282, 139 Pae. 685. See also, Pine Bluff Transfer Co. v. Nichol, 140 Ark. 320, 215 S. W. 579. 90. United States. — Heiidrick v. State of Maryland, 235 U. S. 610, 35 S. Ct. 140; Kane v. State of New Jersey, 242 U. S. 160, 37 S. Ct. 30. Alahama. — See Kennamer v. State, 150 Ala. 74, 43 So. 482; Bozeman v. State, 7 Ala. App. 151, 61 So. 604. California. — Ex parte Schuler, 167 Cal. 282, 139 Pac. 685. Idaho. — In re Kessler, 26 Idaho, 764, 146 Pac. 113. Kentucky. — City of Henderson v. Lockett, 157 Ky. 366, 163 S. W. 199; Smith V. Commonwealth, 175 Ky. 286, 194 S. W. 367. Missouri. — State ex rel. McClung v. Becker (Mo.), 233 S. W. 54. New Jersey. — Kane v. State, 81 N. J. L. 594, 80 Atl. 453, Ann. Cas. 1912 D. 237; Cleary v. Johnston, 79 N. J. L. 49, 74 Atl. 538. South Carolina. — ^Lillard v. Melton, 103 S. Car. 10, 87 S. E. 421. "The apportionment on a basis of horse power has a direct and natural rela- tion to the privilege granted, the use of the highway, and since the license relates to all persons in a class, and operates uniformly upon all therein, there is no unlawful discrimination." Lillard v. Melton, 103 S. Car. 10, 87 S. E. 421. Te^as. — ^Atkins v. State Highway Dept. (Civ. App.), 201 S. W. 226. 91. Mark v. District of Columbia, 37 App. D. C. 563, 37 L. E. A. (N. S.) 440. See also State v. Amos, 76 Fla. 26, 79 So. 433, as to the license fees based on seating capacity. 92. Park v. City of Duluth, 134 Minn. 296, 159 N. W. 627; In re Hof- fert, 34 S. D. 271, 148 N". W. 20, 52 L. R. A. (N. S.) 949. 93. Pine Bluff Transfer Co. v. Nichol, 140 Ark. 320, 215 S. W. 579; Park V. City of Duluth, 134 Minn. 296, 159 N. W. 627. A license fee charged against vehicles used for pleasure may be sustained although no charge is niade against commercial vehicles. Ogilvie V. Harley, 141 Tenn. 392, 210 S. W. 645. Licensing and Registration. 127 while other motor vehicles and trailers are taxed.^^ And a larger fee may be imposed on a motor vehicle used for hire than is required of the owner of a machine used without charge.^^ So, too, a municipality may be exempted from the payment of a license fee for a motor vehicle used by the police or fire department, but required to pay a fee for one used for other purposes ; the classification in this case being based on the distinction which exists between machines used in the governmental powers of the municipality and those used in its proprietary powers.^*^ Sec. 113. Discrimination — dealers in different class. A motor vehicle laAv is not discriminatory because it places dealers and manufacturers of vehicles in a separate class and imposes upon them a license fee which is more or less than is charged against other owners of such machines.^^ Thus, a system of license fees may exact from dealers a fee of $50 if they operate not more than five automobiles and $10 for every motor vehicle in excess of five so operated.^^ So, too, such a statute may levy a tax on individual owners of motor vehicles of twenty-five cents per horse power and tw^enty-five cents per hundred weight and then levy a flat rate of $10 per car on manufacturers for cars not used for the private purposes of manufacturers.^^ And a registration system is not unconsti- tutional as lacking uniformity, because it provides that it shall not apply to motor vehicles which manufacturers and vendors may have in stock for sale and not used for private use or hire.^ 94. Saviers v. Staiith (Ohio), 128 N. usually kept for sale and are not used E. 269. in the ordinary way, but merely for 95. Jackson v. Neff, 64 Fla. 326, 60 . purposes of ' demonstration ' and ex- So. 350; Heartt v. Village of Downer's hibition to intending purchasers. Grove, 278 111. 92, 115 N. E. 869; State Dealers are therefore placed in a class V. Ferry Line Auto Bus Co., 99 Wash. by themselves." Ex parte Schuler, 167 64, 168 Pac. 893. See chapter IX as Cal. 282, 139 Pac. 685. to licensing of vehicles used for hire. 98. Ex parte Schuler, 167 Cal. 282, 96. State v. Collins, 94 Wash. 310, 139 Pac. 685. 162 Pac. 556. 99. .Jasnowski v. Board of Assess- 97. "No doubt the legislature took ors of City of Detroit, 191 :\rich. 287, into consideration the fact that motor 157 N. W. 891. cars in the possession of dealers are 1. People v. MacWilliams, 91 N. Y. 128 The Law of Automobiles. Sec. 114. Discrimination — non-residents. Regulations relative to the registration and licensing of motor vehicles generally contain exceptions in favor of non- residents. Thus, the Legislature frequently exempts non- residents of the State from the i3ayment of license fees when their owners have complied with the registration laws of the State of their residence. And municipal corporations some- times enact licensing regulations which are applicable to owners residing within the municipality, but not those living outside of the municipal limits. The validity of an exception of this nature is universally sustained.^ On the contrary, a city ordinance requiring a license fee from all users of the citv streets has been held unreasonable as to the vehicles of App. Div. 176, 86 N. Y. Suppl. 357; CJommonwealth v. Densmore, 29 Pa. Co. Ct. 219. 2. Arkansas. — Fort iSmith v. Scruggs, 70 Ark. 549, 69 S. W. 679, 91 Am. St. Eep. 100, 58 L. R. A, 921. " But it is said that, conceding that the legisla- ture had the power to permit cities to levy a toll for the use of the streets, it should he imposed equally upon all who use the streets, and that this act is void for the reason that it discrim inates in favor of those who dwell out- side of the city, and permits the tax to be levied upon residents only. It is doubtless true that the legislature could not arbitrarily select certain citi- zens upon whom to impose the tax, while exempting others in like situa- tion. But the rule of equality only requires that the tax shall be collected impartially of all persons in similar circumstances; and this statute applies equally to all persons of the class taxed. As a class, residents of the city use the streets more, and are more benefited by having them kept in good repair, than those who do not live in the city. It is true that non-residents of the city also use the streets with their wagons and other vehicles, and it may be true that certain of them use the streets as much or more than certain of the residents of the city, but, as a class, they do not use the streets as much as residents of the city, and this furnishes a reasonable basis for the distinction made in the act between the two classes. The requirement of the statute that the tax must be im- posed on residents of the city only is but an adoption by the legislature of the common policy of making each community keep up its own highways. This does not discriminate unjustly in favor of those who live beyond the city limits, for they have to keep other liighways which the people of the city may in turn use free of charge. Ftor this reason we think that it was within the discretionary powers of the legis- lature to make this distinction, and that it does not invalidate the act. After a full consideration of the ques- tions presented we are of the opinion that the enactment of this statute ^va,s a valid exercise of legislative power." Fort Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, 91 Am. St. Rep. 100, 58 L. R. A. 921. California. — Ex parte Sehuler, 167 Cal. 282, 139 Pac. 685. Illinois. — ^Heartt v. Village of Dow- ner's Grove, 278 111. 92, 115 N". E. 869. Licensing and Registration. 129 non-residents/' But it is within the power of a State to im- pose a license fee and other regulations on the machine of a non-resident while it is operated within the State.'' The exemp- tion generally continues for hut a few weeks or months after the vehicle comes within the locality, and, if it remains longer than the specified time, it must be registered in the same manner as is required of the vehicles of residents.' In some, jurisdictions, a motorist who continues to operate his machine after the expiration of the period of exemption, becomes a trespasser upon the highways." Where the statute provides that automobiles of non-residents may be operated upon the highways for ten days "continuously," at the expiration of which time they shall be subject to registration, it was held that where there was not a continuous operation of the vehicle for ten days within the State, it was not subject to registra- tion, although it had been operated within the State more than ten days in the aggregate.'^ Sec. 115. Discrimination — non-resident exemption based on reciprocity. Several States have considered legislation providing for the exemption of non-resident automobilists registered in their Indmna. — Kersey v. Terre Haute, Ifil tion of such a tax upon non-residents Ind. 471, 68 N. E. 1027. wlio use such highways temporarily, Kentucky. — City of Newport v. \\&.i never been questioned or denied in Merkel Brothers Co., ]')6 Ky. 580, IGl any jurisdiction of whicli we are aware. S. W. 549. ^" ^he contrary, the right to impose i/wncsota.— See Park v. City of such a license or tax is generaUy Duluth, 134 Minn. 296, 159 N. W. 627. recognized." Lillard v. Melton, 103 S. Mississippi. — ^State v. Lawrence, 108 Car. 10, 87 S. E. 421. Miss. 291, 66 So. 745. 3- P^g v. City of Columbus, 80 South Caroiiwa.— Lillard v. Melton. Ohzo St. 367, 89 N. E. 14. AGS S. Car. 10, 87 S. E. 421. '" llu' 4. Kane v. State of Now Jersey, 242 t^bjection that there is an unjust dis- V. S. 160, 37 S. Ct. 30. crimination in the provision which ini 5. Ex parte Schuler, 167 Cal. 282, poses upon resident vehicles a lincenso. 139 Pac. 685; Burns v. Bay State Ry. whfle those of other counties and States Co., 77 N. H. 112, 88 Atl. 710. may temporarily use the highways 6. Dudley v. Northampton St. Ry. without incurring liability for the pay- Co., 202 Mass. 443, 89 N. E. 25, 23 ment thereof, is wholly without merit. L. E. A. (N. S.) 561n. The right to tax the residents of a 7. Burns v. Bay State Ry. Co., 77 municipality for the maintenance of N. IT. 112, 88 Atl. 710. roads and streets, witliout tlif iniposi 9 130 The Law of Automobiles. home States, provided these latter States grant the same privilege in return. Such legislation* would seem to be un- constitutional, because the reciprocity condition conflicts di- rectly with that clause of the Federal Constitution which pro- hibits a State to discriminate against non-residents merely be- cause their home State does not reciprocate the privileges granted. The State has the right to require all non-resident automobilists to take out a local automobile license, but it cannot pick out and discriminate against motorists whose home State does not grant exemption privileges to non-resi- dents. The theory of this legislation seems to be founded on the fact that a State may regulate the right of a foreign corpora- tion to do business within its jurisdiction, and may compel it to take out a local license. Ketaliatory legislation depriving corporations of another State of the right to do business un- less a similar privilege is granted by that other State has been common in this country, and does not conflict with the Con- stitution, since a corporation has no right to migrate into an- other State unless permission is given it to do so. Conse- quently, the State can entirely prohibit the corporation from entering its jurisdiction, which includes the right of prohibit- ing entry into its jurisdiction under certain conditions. Auto- mobilists, however, are not corporations. Every citizen of this country has the inviolable right to travel into and through any State he wishes as long as he complies with the laws governing the local inhabitants. Any law discriminating against non-residents under certain conditions, depending upon the action of the home State of these non-residents, is thought to be null and void.^ 8. A non-resident who asserts that complained of requires a compliance by such a statute discriminates against non-residents with the laws of their residents of the particular jurisdiction State. Fendrick v. Maryland, 235 U. within which he resides must show a S. 610, 35 S. Ct. 140. See also, Kane compliance with the laws of his domi- v. State of New Jersey, 242 U. S. cile in this respect, where the statute 160, 37 S. Ct. 30. LiCENSIXG AND REGISTRATION. 131 Sec. 116. Registration by particular classes of owners — cor- porations and partnerships. Under an automobile law which requires all automobiles and motorcycles to be registered by the owner or persons in con- trol, and prohibiting any person to operate such a vehicle un- til he shall first have obtained a license, which he must keep with him when operating the machine, it has been held that a corporation or partnership owning a vehicle covered by the statute, must register the automobile in the corporate or firm name, but the license is not to be issued to the corporation or firm as such, it being personal to the operator.^ Where an automobile is owned by two partners, both of whom are li- censed, and the machine carries the number of one of the li- censed partners, and both are occupants of the machine, the operation of the machine by the partner whose license is not carried may be proper.^" Under the Massachusetts statute for the registration of motor vehicles, upon the change in per- sonel of a partnership, an equivalent change must be made in the registration of its machine." And, under such statute, if it is jointly owne^, it should be registered in the names of all of the joint owners.^^ Sec. 117. Registration by particular classes of owners — registration in trade name. Inasmuch as a corporation, firm or individual may adopt a trade name under which business may be transacted, a regis- tration in the name so adopted may be proper, provided, of course, a fictitious name cannot be adopted by an individual, under the guise of a trade name, for the purpose of concealing his identity. So a plaintiff who has thus registered his auto- mobile may recover for injuries due to the negligence of an- other and his right to recover will not be defeated by the fact that the plaintiff has failed to comply with a statute requiring a certificate of certain facts to be filed by such a trader, the 9. Emerson Troy Granite Co. v. 11. Rolli v. Converse, 227 Mass. 162, Pearson, 74 N. H. 22, 64 Atl. 582.» 116 N. E. 507. 10. Yeager v. Winston Motor Car- 12. Shufelt v. McCartin (Mass.). riage Co., 53 Pa. Super. Ct. 202. 126 N. E. 362. 132 Thk Law of Automobiles, statute being intended solely foi- the iiiroriuatioii and ])rotec- tion of creditors with whom ho might contraot.'' Sec. 118. Registration by particular classes of owners — dealers. Regulations may be prescribed for the registration of dealers which are not applicable to other owners of motor vehicles without creating an illegal discrimination.^* Where a statute provides for a registration by dealers, it must be made by the one actually contemplated by the statute.^^ 80, under a statute containing a j)rovision for the issuance of a license to such persons and defining a dealer as "ever}^ per- son who is engaged in the business of buying, selling or ex- changing motor vehicles, on commission or otherwise and every person who lets for hire two or more motor vehicles," it was held that registration in the name of one carrying on a garage business as agent for an OA\Tier was not sufficient ; but that registration in the name of the principal, the actual owner, was necessary .^"^ Under a motor vehicle law providing that "Every person, firm, association or corporation manu- facturing or dealing in motor vehicles may, instead of regis- tering each motor vehicle so manufactured or dealt in, make a verified application for a general distinctive number for all the motor vehicles owned or controlled by such manufacturer or dealer. . . . Such number plate or duplicate thereof shall be displayed by every motor vehicle of such manufac- turer or dealer when the same is operated or driven on the public highways. . . . Nothing in this subdivision shall be construed to apply to a motor vehicle operated by a manu- facturer or dealer for private use or for hire," it was held that "personal use" included not incidental to the business of manufacturing or dealing in motor vehicles and that a dealer in transporting merchandise from the business place of the firm to one of its customers violated the law when he did not have a separate registry num'ber issued for that particular 13. Crompton v. Williams, 216 Mass. 15., See Skene v. Graham, 116 Me. 184, 103 N. E. 298. 202, 100 Atl. 938. 14. Section 113. 16. Gould v. Elder, 219 Mass. 396, 107 N. E. 50. LicEX.siN(; AND Reglsthation. Jo8 vehicle.^' And, under 1. 61 So. 604. 63 So. 201. 33. Ex parte Sclmler, 167 Cal. 282, 35. Ex parte Schuler, 167 Cal. 282, 139 Pac. 685; .Jasowski v. Board of 139 Pac. 685; People v. Sargent, 254 Assessors of City of Detroit, 191 Muh. 111. 514, 1)8 N. E. 959. 287 157 N. \V. 8^1. 36. Commonwealth v. Hawkins, 14 Pa. Dist. Rep. 592. Licensing and Registration. 137 known or in use at the time tlie act was passed.''^ A buggy, carriage or automobile, when in use upon public streets of a city, whether used for pleasure or for hire, if persons are car- ried therein, is in use for ''carrying a load " within the mean- ing of a statute.'** A law requiring (discussing the Massachusetts rule). '"There is but small doubt that an un registered automobile is a trespassoi- upon the highway, and it must he true tliat the operator or occupant i*^ in no better condition to recover tlian a person Avould be who was violating the law in walking on the track of a railroad, but even a person thus tres- passing, as against what would really be found to be a willful, wanton and reckless act of another, is entitled to some protection." United Transp. Co. V. Hass, 91 Misc. (N. Y.) 311, 155 X. Y, Slippl. 110, affirmed 115 N. Y. Suppl. 1115, wherein the Massachusetts rule was discussed. Wanton negligence not established. — Failure of a motorman to see an auto- mobile before he did and to bring his car to a stop quicker while evidence of negligence fails to reach tlie kind of conduct required to warrant a recov- ery by plaintiffs who were, by reason of the automobile being unlicensed, trespassers upon the highw^ay. Dean V. Boston Elevated Railway Co., 217 Mass. 495, 105 K E. 616. 51. Fairbanks v. Kemp, 226 Mass. 75, 115 N. E. 240; Koonovsky v. Quel lette, 226 Mass. 474, 116 N. E. 243; Hurnanen v. Nicksa, 228 Mass. 346, 117 N. E. 325; Gowdek v. Cudahy Packing Co., 233 Mass. 105. 123 N. E. 398; Evans v. Rice (Mass.), 130 N. E. 672. 52. Evans v. Rice (Mass.), 130 N. E. 672. 53. Oould V. Elder, 219 Mass. 396, 107 N. E. 59; Gowdek V. Cudahy Pack ing Co. (Mass.), 123 N. E. 398. Licensing and Registration. 141 .extent by a statute in 1915 which provides in effect that the .violation shall not he a defense unless it is shown that the person injured or killed, or the owner of the property injured, knew or had reason to know that the provisions of the statute were being violated. Hence, it is now the law that the chauf- feur of a machine may sometimes recover 'for his injuries in a case where the owner would be denied recovery for dam- ages to the machine.^* In Connecticut it was held, that, in the absence of any statu- tory provision to th'at effect, the use of an unregistered and unnumbered automobile upon the public highways as required by statute w^as not unlawful, and did not preclude the owner from recovering damages of a city for injuries to himself and to the car w^hich were caused by a defect in the highway due to the city's negligence.'^^ But, by a subsequent statute en- acted in that State, it was expressly provided that no recovery shall be had by the "owner, operator, or any passenger of a motor vehicle " which is not registered as required by the act ''for any injury to person or property received by reason of the operation of such motor vehicle upon the public highways of this State. "^"^ The word "operation" as used in such 54. RoUi V. Converse, 227 Mass. Ifi2. 116 N. E. 507. 55. Hemming v. City of New Haven, 82 Conn. 661, 74 Atl. 892, 18 Ann. Cas. 240; 25 L. R. A. (N". S.) 734n, wherein the court said : " The plain- tiff was violating the statute relating to the registration of automobiles, but that fact does not relieve the defend- ant. The statute imposed an obligation upon the plaintiff to register his auto- mobile and for its violation prescribed a penalty. The statute goes no further and it cannot be held that the right to maintain an action for damages resulting from the omission of the de- fendant to perform a public duty is taken away 1>ecause the person injured was at the time his injuries were sus- tained disobeying a statute law which in no way contributed to the accident. A traveler with an unregistered and unnumbei'cd automobile is not made a trespasser upon the street, neither does it necessarily follow that the property which he owns is outside of legal pro- tection when injured by the unlawful act of another. . . . The registration of plaintiff's machine was of no conse- quence to the defendant. His failure to register and display his number in no way contributed to cause the in- jury. The accident would have hap- pened if tlie law in this respect had been fully observed. Tlie plaintiff's unlawful act was not the act of using the street but in making a lawful use of it without having his automobile registered and marked as required by law. The statute contains no prohil>i- tion against using an unlicensed and unnuml)ered automobile upon the high- way and streets of the State." 56. Stroud v. Board of Watef 142 The Law of Automobiles. statute includes such stops as the vehicle would ordinarily make, and the owner of lan unlicensed automobile may not recover for injuries thereto received by a truck running into it while it is standing by the side of the highway.^^ But an unlicensed machine is not in ''operation" on the highway when it is tow^ed by another vehicle.^ Under the statute, the burden is upon the owner of the machine, when seeking to recover his injuries, to show the vehicle was properly regis- tered.^^ In Maine, the statute forbidding the operation of motor vehicles on the public highways unless they are registered and licensed .according to the statute, is very similar to the Massa- chusetts law, and it has to some extent received a similar con- struction.^'^ The statute renders unlawful all travel in an un- Ck)m'r8 of City of Hartford, 90 Conn. 412, 97 Atl. 336; Brown v. New Haven Taxicab Co., 92 Conn. 252, 103 Atl. 573. 57. Stroud v. Board of Water Com'rs of City of Hartford, 90 Conn. 412, 97 Atl. 336, wherein it was said: " The word ' operation ' cannot be limited, as the plaintiff claims it should be, to a state of motion con trolled by the mechanism of the ear. It is self-evident that an injury may be received after the operator has brought his car to a stop, and may yet be received by reason of its opera tion. The word 'operation,' therefore, must include such stops as motor vehicles ordinarily make in the course of their operation. It is also clear that the words ' received by reason of the operation ' do not refer merely to injuries proximately caused by such operation. That cannot be so, because the whole purpose of section 19 is to prevent a recovery in cases where the owner, operator, or passenger of the illegally registered car would otherwise be entitled to one; and no such re- . covery could in any event be had if the operation of the illegally registered car was in a legal sense the proximate cause of the injury. In order to give any reasonable effect to section 19, it must be understood as requiring the owner, operator, or passenger of a motor vehicle, not registered in accord- ance with sections 2 or 3 of the act, to assume all the ordinary perils of operating it on the highway. In this case the plaintiff's car was as much in the ordinary course of operation on the highway at the time of the injury as if it had been used for shopping, calling, or delivering merchandise. One so using the highway necessarily incurs the risk of injury from the neg ligence of fellow travelers, as well while his vehicle is at rest as while it is in motion, and the injury com- plained of in this case was received ' by reason of ' the operation of the plaintiff's illegally registered ear on the highway, within the plain intent of the act." 58. Dewhirst v. Connecticut Co. (Conn.), 114 Atl. 100. 59. DeWhirst v. Connecticut Co. (Conn.), 114 Atl. 100. 60. McCarthy v. Inhabitants of Town of Leeds, 115 Me. 134, 98 Atl. 72, wherein the court expressed its views as follows: "An examination Licensing and Registration. 143 licensed machine, and when the action is against a munici- pality and is based on the nnsafety of the highway, the person injured cannot recover.^^ Even an infant child riding in the machine is barred from recovery in such a case.®^ But it is held in an action for injuries received from a collision with a street car, that the non-registration will not necessarily bar a recovery.*'^ In Canada different conclusions may be drawn in different provinces, as the question is determined by the reading of the regulations in the several provinces and territories.®^ Sec. 126. Effect of non-registration in actions for injuries — general rule. The general rule as to the effect of non-registration of a motor vehicle is niot in agreement with the doctrine promul- of the decided cases, we think, clearly shows that, when the statute provides for the registration of automobiles and fixes a penalty for their operation upon the highways and streets of the State, unless registered, their opera- tion upon the highways and streets while unlawful, does not of itself bar the owner from recovering damages for injuries sustained by reason of defective highways, because the violation of the law does not contribute to the injury: but if, in addition to the penalty pro- vided by law, the statute prohibits the use upon the highway of an unregis- tered auto, the operation of the auto upon the prohibited streets and high- ways is such an unlawful act that, by reason of the prohibition, its operation is a trespass, and cities or towns are not obliged to keep their ways safe for trespassers to travel upon in violation of law. The language of section 1 1 of the act of ]911 clearly and plainly prohibits their use upon the highways of the State unless registered, as re- quired by the act, and unless so con- strued the purpose of the legislature to protect persons lawfully using the highway will fail; and the plain and unambiguous language of section 11 would be disregarded, which is a vio- lation of all rules of law for the con- struction of statutes, and we hold that tlie plaintiff was prohibited by statute from using the auto on the highway, it being unregistered as re- quired by section 8, c. 162 of the Laws of 1911, and the town owed him no duty to keep the way safe and con- venient for him to travel upon. Hia rights were only the rights of a tres- passer upon the land of another.' See also Lyons v. Jordan, 117 Me. 117, 102 Atl. 976. 61. Blanchard v. City of Portland (Me.), 113 Atl. 18. 62. McCarthy v. Town of Leeds, 116 Me. 275, 101 Atl. 448. 63. Cobb V. Cumberland County Power & Light Co., 117 Me. 455, 104 Atl. 844. 64. See Constant v. Pigott, 15 D. L. R. (Canada) 358; Etter v. City of Saskatoon, 39 D. L. R. (Canada) 1; Greig v. Merritt, 11 D. L. R. (Canada) 852; Buck v. Eaton, 17 O. W. N. (Canada) 191, in effect following the Massachusetts rule. But see Godfrey v. Cooper, 46 O. L. R. (Canada) 565, in- dicating a contrary rule. 144 The Law of Automobiles. ga'ted by the courts' of Massachusetts. The great weight of authority supports 'the view that in cases of injury to the ana- chine or the occupants from the negligence of third persons, the failure to obey the law with reference to the registration and licensing .of the machine is not a proximate cause of the injury and has no effect upon 'the recovery for the damages sustained.''^ And so, too, in case of an injury to another 65. Alabama. — Armstrong v. Sel- lers, 182 Ala. 582, 62 So. 28; Stovall V. Corey- Highlands Land Co., 189 Ala. 576, 66 So. 577. "The fact that the plaintiff's motorcycle was not regis- tered in compliance with the law of the State had no causal connection with the injury of which the plaintiff complains, and can in no way be avoidable to the defendant, under the issues presented in this case. The fact that the motorcycle was not reg- istered in no way affected the general duty, which the defendant owed to the plaintiff, to so operate its auto- mobile while traveling upon the pub- lic highway as not to negligently in- jure the person or property of an- other." Stovall V. Corey-Highlands Land Co., 189 Ala. 576, 66 So. 577. "It matters not to the defendant whether the automobile was or was not registered in compliance with the laws of the State, which require all automobiles to be registered. If the automobile was not registered, the owner thereof may be guilty of a vio- lation of one of the criminal laws of the State, but that fact in no way affected the general duty, which the defendaat owes to the law, so to op- erate its cars as not to negligently injure the person or property of any person. The mere fact, if it be a fact, tliat the automobile was not registered had no causal connection with th(! injury of which the plaintiff complains, and that fact, if it be a fact, in no way contributed to the injury io the automobile." Birming- ham Railway, Light and Power Co. v. Aetna Accident & Liability Co., 184 Ala. 601, 64 So. 44. California. — Shimoda v. Bundy, 24 Cal. A])p. 675, ]42 Pac. 109, wherein it was .said: "Our conclusion is that one who violates an ordinance wherein a penalty is fixed for non-compliance with its j)rovisions, may be sub- jected to the penalties therein pre- scribed, but he cannot, in addition thereto, be deprived of his civil right to recover damages, perhaps in many thousands of dollars, sustained by reason of the negligence or wrong of another, whs'e such violation bore no relation to the injury and did not contribute in the remotest degree thereto. ' ' Florida. — Atlantic Coast Line Rail- load Company v. Weir, 63 Fla. 69, 58 So. 641, Ann. Cas. 1914 A. 126, 41 L. K. A. (N. S.) .307; Porter v. Jack- sonville Electric Co., 64 Fla. 409, 60 So. :88. Georgia. — Central of Georgia Ry. Oo. v. Moore, 149 Ga. 581, 101 S. E. 668; Central of Georgia Ry. Co. v. Moore, (Ga. App.) 102 S. E. 168. Compare, Knight v. Savannah Elec. Co., 20 Ga. App. 719, 93 S. E. 17. Illinois. — See Crosson v. Chicago, etc., Co., 158 111. App. 42. Iowa. — Phipps V. City of Perry, 178 Iowa, 173, 159 N. W. 653 (motors c.vcle) ; Wolford v. City of Grinnell, 179 Iowa 689, 161 N. W. 686. Kansas. — Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635. Licensing axd Registration. 145 traveler, the fact that the defendant's automobile was not properly registered is not to be considered a proximate cause of the injury, and the liability of the owner of the unregis- Kentucky. — Moore v. Hart, 171 Ky, 725, 188 S. W. 861. Minnesota. — Aimstcail v. Louns- beny, 129 Minn. 34, 151 N. W. 542, 544, whcicin the court said: "Plain- tiff had not complied with this law. Defendant contends that lu- was there- fore a trespasser upon the street, and that the only duty the traveling pub- lic owed to him was a duty not to willfully or wantonly injure him. We do not concur in this contention. The fact that a person who sustains injury at the hands of another is at the time engaged in violation of some law may have an important bearing upon his right to recover. His viola- tion of the law may be evidence against him, and in some cases may wholly defeat recovery. . . . But it is not every violation of the law that is even material evidence against him. The right of a person to main- tain an action for a wrong committed upon him is not taken away because he was at the time of the injury dis- Qbe^^ng a statute law which in no way contributed to his injury. He is not placed outside all protection of the law, nor does he forfeit all his civil rights merely because he is com- mitting a statutory misdemeanor. The wrong on the part of the plain- tiff, which will preclude a recovery for an injury sustained by him, must be some act or conduct having the relation to that injury of a cause to the effect produced by it. ... A collateral unlawful act not contribut- ing to the injury will not bar a re- covery. . . . Plaintiff's violation of law in this case is of this collateral character. There was no relation of cause and effect between the unlawful act and the collision. The registra- tion of plaintiff's automobile was of 10 no consequence to defendant. The law providing for such registration was not for tiie prevention of collisions and had no tendency to prevent col- lisions. There is no pretense that the registration of plaintiff's automo-- bile would have had any tendency to prevent this collision. Plaintiff's failure to obey the law in no way con- tributed to his injury and could not V)ar his right of recovery." Missouri. — Luckoy v. Kansas City, 169 Mo. App. 666, 155 S. W. 873; Dixon V. Boeving (Mo. App.), 208 S. W. 279. Pennsylvania. — Yeager v. Winston Motor Carriage Co., 53 Pa. Super. Ct. 202. Ehode Island. — Marquis v. Messier, 39 R. I. 563, 99 Atl. 527. Vermont. — Gilman v. Central Ver- mont Ry. Co., 107 Atl. 122. VirginiS I'ai^. 235 Fed. 978; Auto Transit Co. v. 516; Puget Sound Tract. L. & P. Co. City of Ft. Worth (Tex. Civ. App.), v. Grassmeyer. 102 Wii.sli. 4S2, \7:\ Pac. 182 S. W. 685. 504. 51. Hutson V. Des Moines, 176 54. Lutz v. City of New Orleans. 235 Iowa, 456, 1.56 N. W. 883; City of Fed. 978; New Orleans v. LeBlanc, 139 Providence v. Paine, 41 R. I. 333, 103 La. 113, 71 So. 248; Auto Transit Co. Atl. 786; State ex rel. Case v. Howell, v. City of Ft. Worth (Tex. Civ. App.), 85 Wash. 294, 147 Pac: 1159; Singer 182 S. W. 685; State v. Seattle Taxi- V. Martin, 96 Wash. 231, 164 Pac. 1105. cab & Transfer Co.. 90 Wash. 416, 156 52. Hazelton v. City of .\tlanta. Pac. 837. "It is further contended, in 144 Ga. 775, 87 S. E. 1043. this connection, that the act is invalid $2500 bond, is not unreasonable. because of the particular character of Commonwealth v. Theberge, 231 Mass. the bond required. The requirement is, 386, 121 N. E. 30. it will be noticed, that the bond be ol>- 53. Lutz v. City of New Orleans, 235 tained from a 'good and sufficient Fed. 978; Greene v. City of San An- .suretty company licensed to do busi- tonio (Tex. Civ. App.), 178 S. W. 6; ness in this State,' making no ])rovi- Auto Transit Co. v. City of Ft. Worth sion for .substitutes in any form, or (Tex. Civ. App.), 182 S. W. 685 ; Had- for bonds with other sureties of equal 186 The Law or Automobiles. tutional right of the jitney owner to liberty of contract.^'^ And the fact that a particular operator cannot, by reason of limited financial resources or standing, secure a surety bond, will not present ground for the courts to release him from the requirement.^*' But a contrary conclusion has been reached as to such a requirement, and it has been held in one State that a municipal ordinance requiring the bond of a jitney operator to be signed by a surety company is unreasonable.^^ responsibility. But we know of no constitutional right which such a pro- vision violates. The power to regulate necessarily implies the power to pre- scribe the form of regulation, and the most that can be successfully contended for, conceding even that it was without the power of the legislature to actually prohibit this form of traffic, is that the requirement be a reasonable one. It is not shown that there were no such com- panies authorized to do business in this State, and, since the legislature pre- scribed this form of bond, the court must presume that they had knowledge of the subject-matter upon which it legislated, and must presume, in con- sequence, that there are such companies, and that bonds are obtainable from them without undue icstrictions or un- reasonable cost. We cannot therefore know judicially that the requirement is unreasonable." State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 156 Pac. 837. 55. Lutz V. City of New Orleans, 235 Fed. 978. "Does the requirement that the bond be signed by a surety com pany violate plaintiffs' liberty of con tract? Assuredly not. It is shown that a number of surety companies are au- thorized to do business in the State. It is not shown they exact exorbitant fees, or that the plaintiffs could procure per- sonal surety on a better basis or at all. The only reason plaintiffs cannot pro cure the surety bonds in compliance with the ordinance is because they can- not deposit cash or collateral equal to the amount of the bond. Personal surotj- might make the same require- ment. In any event the contrary is neither alleged or proved. Considering the greater desirability of corporate surety . in any case, a superiority sometimes recognized by the law it- self. ... it can hardly be said that the provision that the bond must be signed by a surety company is more onerous than would be a requirement of personal surety of equal responsi- bility." Lutz V. City of New Orleans, 235 Fed. 978. 56. Lutz V. City of New Orleans, 235 Fed. 978; Auto Transit Co. v. City of Ft. Worth (Tex. Civ. App.), 182 S. W. 685. 57. Jitney Bus Assoc, of Wilkes- barre v. Wilkesbarre, 256 Pa. St. 462, 100 Atl. 954, wherein the court said: * * In the present case the bond re- quired is restricted to one furnished by ;i surety company, while the evidence shows that it is difficult to procure such a bond from a surety company. Under the circumstances, we think the exclu- sion of personal sureties is not justi- fiable or reasonable. The municipality is entitled to require good and suffi- cient security, but beyond that it should not go. The terms of the ordinance in this respect would forbid the deposit of cash, or a certified check, or municipal bonds, as security by the applicant for a permit, or the acceptance as sureties upon his bond of individual freeholders of unquestioned financial responsibility. We know of no other instance in which, PuiJLic Carriage for Hire, Jitneys, Etc. 187 And it has been held proper to vest the municipal officials with po^^^r to require further sureties upon the bond, after determining- that the existing ones are insufficient.^ Sec. 158. Bonds — extent of surety's liability. In an action for injuries received by a traveler from the operation of a jitney, the plaintiff is entitled to recover of the surety on the bond the same items of damages as he is entitled to receive from the principal.^^ The liability of the surety may run to a passenger in the vehicle as well as to pedestrians and travelers in other vehicles,''*^ although the amount of the bond is regulated according to the seating capacity of the vehicle.^^ The bond may be one of liability instead of indemnity merely.^^ tj^^ surety may be liable, al- though the machine was operated at the time in question, not by the jitney owner, but by a driver who received a share of the proceeds for his compensation.^ Or the bond may cover an accident while the driver is running the machine to a re- pair shop for repairs and is not carrying passengers.^* But the surety mil not ordinarily be liable when the machine is off its usual route and the driver has temporarily discontinued where security is required by law to be Pac. 31, where it was said: "The test giveu, an attempt has been made to as to whether this is a liability or an confine such security to surety com- indemnity bond seems to be: If the panies, to the exclusion of solvent and intention of the parties thereto was to responsible personal sureties. ' ' protect the assured from liability for 58. Commonwealth v. Slocum, 230 damages, or to protect persons damaged Mass. 180, 119 N. E. 687. by injuries occasioned by the assured 59. Singer v. Martin, 96 Wash. 231, as specified in the contract, when such 164 Pac. 1105. liability should accrue, and be imposed Damage to property, as well as per by law (as by a judgment of a compe- sonal injuries, may be recovered tent court), it is a liability bond; if, against the surety. Gilland v. Manu- on the other hand, it is only tq indem- facturer's Casualty Ins. Co., 93 N. J. L. nify tlie assured against actual loss by 146, 104 Atl. 709. them, that is, for reimbursement to 60. City of Providence v. Paine (R. them for moneys they had been obliged I.), 103 Atl. 786; Interstate Casualty to pay and had paid, it would be an in- Co. V. Hogan (Tex. Civ. App.), 232 S denudty bond only, protecting only the W. 354; Singer v. Martin, 96 Wash. assured." 231, 164 Pac. 1105. 63. McDonald v. Lawrence, 170 61. City of Providence v. Paine, II Wash. 576, 170 Pac. 576. R. I. 333, 103 Atl. 786. 64. Ehlers v. Gold, 169 Wis, 494, 173 62. Fenton v. Postou (Wash.), J 95 N. W. 325. 188 The Law of Automobiles. the jitney business.^ And, generally the liability of the com- pany extends only to the vehicle mentioned in the bond.'^*' The liability on the bond may survive the death of the in- jured person so that his representative or a member of his family may maintain an action thereon.^'' It is not necessary, in order to resort to the remedy against the surety, that a judgment be first recovered against the jitney owner.^'^ Or the person injured may sue the surety on the judgment he has recovered against the proprietor ; "^ but, where the bond is not to pay a judgment recovered against the principal the surety may contest the liability of the principal, although judgment has been rendered against him.'" Under the regulations in some States, the bond is a continuing liability and each person injured by the operation of the jitney is entitled to recover from the surety up to the full amount of the bondJ^ But, on 65. Motor Car Indemnity Exch. v. Lilienthal (Tex. Civ. App.), 229 S. W. 703; Hemphill v. Romano (Tex. Civ. App.), 233 S. W. 125. 66. Downs v. Georgia Casualty Co., 271 Fed. 310. Marshaling funds. — When the sums due to various persons exceed the amount of the bond, the court has no authority to marshal the funds for division pro rata among such persons. Turk V. Goldberg (N. J.), 109 Atl. 732. 67. Bruner v. Little, 97 Wash. 319, 166 Pac. 1166. 68. Gugliemetti v. Graham (Cal. App.), 195 Pac. 64; City of Providence V. Paine, 41 R. I. 333, 103 Atl. 786. "There is nothing in the statute ex- pressly or impliedly requiring the bring- ing of an action against the principal to determine his liability before an ac- tion is commenced on the bond. And there is nothing in the bond which makes the sureties liable only in the event that the principal fails to pay. On the contrary, their liability is un- conditional, and, as has already been stated, they may be proceeded against alone. It follows that a person injured by the negligence of a motor bus li- censee in the operation of his motor car has the choice of proceeding in the re- covery of damages in whichever man- ner he considers will be for his advan- tage, either by bringing an action of trespass on the case, if the licensee be financially responsible, or an action of debt on bond, if he deem that the more prudent course. City of Providence v. Paine, 41 R. L 333, 103 Atl. 786. 69. Gillard v. Manufacturers Casu- alty Ins. Co., 93 N. J. L. 215, 107 Atl. 446. 70. Calvitt V. City of Savannah (Ga. App.), 101 S. E. 129. 71. Salo V. Pacific Coast Casualty Co., 95 Wash. 109, 163 Pac. 384; Nel son V. Pacific Coast Casualty Co., 96 Wash. 43, 164 Pac. 594. "Much dis- cussion is found in the briefs over the question whether a surety can be held liable for a greater amount than the penalty named in the bond. There is a line of cases which hold that, where the action is brought upon a covenant found in the bond, and is not brought for the penalty, wjiich at common law would have been an action of debt, the recovery may exceed the amount of the penalty. It is unnecessary to review these cases, as they are not here appli- cable. In this case, the action against Public Caeriage for Hire^ Jh\neys, Etc. 189 the othi^r hand, it has been held that a municipality cannot require a jitney proprietor to furnish a bond which shall have a continuing liability so as to render the surety liable for a sum beyond the penal sum mentioned thereinJ^ If bonds in excess of the amount actually required are given by the jitney proprietor, a recovery may be had thereon to their full amount.'^ Sec. 159. Bonds — liability for accident outside of munici- pality. Under a statute forbidding the operation of jitneys within certain cities unless the owner procures a license and fur- nishes a bond, it has been held that the surety is not liable for injuries occurring outside of the territorial limits of a city.'''* The bond may be required so that it applies only to the surety company is not upon a cove- nant in the bond other than the stipu- lated penalty. If the bond in this case does not furnish protection to each in- dividual injured, to the extent of the penalty named, then the judgment should be reversed. On the other hand, if it was the intention of the statute, under which the bond is given, to fur- nish protection to each individual in- jured, to the extent of the penalty named in the bond, then the judgment should be affirmed. In a statutory bond, in order to determine the extent of the liability, the provisions of the act under which the bond is given are read into, and become a part of, such bond." Salo v. Pacific Coast Casualty Co., 95 Wash. 109, 163 Pac. 384. Damages to " two " persons. — Where a widow shows damages in an action for his death to the deceaseed and his es- tate and also her own pecuniary loss, the circumstances may constitute dam- ages to "two persons" within the meaning of a bond conditioned for the payment of damage not exceeding $2,- 500 to any one person, or $5,000 for any one accident. Ehlers v. Gold, 169 Wis. 494, 173 N. W. 325. 72. Jitney Bus Assoc, of Wilkes- barre v. Wilkesbarre, 256 Pa. St. 462, 100 Atl. 954. 73. Western Indemnity Co. v. Mur- ray (Tex. Civ. App.), 208 S. W. 696. 74. Bartlett v. Lanphier, 94 Wash. 354, 162 Pac. 533, wherein it was said: "If one reads these sections without having in mind the dominant purpose of the act, which manifestly is to pre- vent the operation of motor vehicles by carrying passengers for hire in cities of the first class without a permit so to do, and to secure compensation to those negligently injured by such operation in cities of the first class, there will be suggested to the mind of the reader many uncertainties and much ambiguity in the meaning of the language used; but, having this evident dominant pur- pose of the act in view, we think it must be held that no permit for so operating motor vehicles outside the corporate limits of cities of the first class is required and that the bond re- quired as a condition precedent to the issuance of such permit is not to secure compensation for injuries other than such as occur within the corporate- limits of such cities. In other words, 190 The Law of Automobiles. the municipality granting the license, although the line ex- tends beyond the municipal limits.''^ Sec. 160. Hack stands — in general. It is within the power of nmnicipal corporations to regulate the place where taxicabs, motor hacks and similar vehicles shall stand when not in employment.''^ Outside of the nature of such vehicles as common carriers which justifies their regu- lation, a city has power to make reasonable regulations to avoid the obstruction of the streets.''^ As a general proposi- tion, it may select certain places for stands and adopt a form of license to use such places, and it may thereafter revoke such licenses and make other provisions with regard to the hack stands.''^ Sec. 161. Hack stands — sight-seeing automobiles. In New York it is decided that as a general proposition, an owner or tenant of premises abutting on a public street in the city of New York cannot use the street for private gain, as the streets are for the use of the public, subject to such regula- tions as the Legislature may adopt or may empower the muni- cipality to make.'^^ So, it has been held that the lease of a store that neither the permit nor the bond has anything to do with the operation of motor vehicles outside the corporate limits of such cities." See also Bog- dan V. Pappas, 95 Wash. 579, 164 Pac. 208. 75. Fi.scher v. Pallitt (N. J.), 112 Atl 305. 76. Sanders v. City of Atlanta, 147 Ga. 819, 95 S. E. 695; Pugh v. City of Drs Moines, 176 Iowa, 593, 156 N. W. 802; Swann v. City of Baltimore, 132 Md. 256, 103 Atl. 441; Yellow Taxicab Co. V. Gaynor, 82 Misc. 94, 143 N. Y. Snpnl. 279, affirmed on opinion below, 159 App. Div. 893; Ex parte Stallcups (Tex. Cr.), 220 S. W. 547. 77. Sanders v. City of Atlanta, 147 Ga. 819, 95 S. E. 695; Pugh v. City of Des Moines, 176 Iowa, 593, 156 N. W. 892. Standing taxicab as nuisance. — If a taxicab company unreasonably and un- lawfully obstructs a public highway it is guilty of a public nuisance, but no action to abate it exists in favor of a private suitor in the absence of some showing of injury or damage peculiar to him. Hefferon v. New York Taxi- cab Co., 146 N. Y. App. Div. 311, 130 N. Y. Suppl. 710. 78. Yellow Taxicab Co. v. Gaynor, 82 Misc. 94, 143 N. Y. Suppl. 379, affirmed on opinion below, 159 App. Div. 893; Ex parte Stallcups (Tex. Cr.), 220 S. W. 547. 79. United States Restaurant Co. v. Schulte, 67 Misc. (N. Y.) 633, 124 N. Y. Suppl. 835. Public Carriage for Hire, Jitneys, Etc. 191 under a hotel carries with it the easements of light, air and access through the public street in front of the premises, but does not include the right to grant a privilege of maintaining a sightseeing automobile at the curb. Although, by reason of a prior license given by the landlord who owns a hotel to a taxicab company to maintain a cab stand in front of said premises and a municipal license granted in conformity there- with, if the use of the street by a sightseeing automobile is interefered with, the tenant of the store cannot be held thereby to suffer a partial eviction. Such a stand is an incident to the use of the premises as a hotel, but a sightseeing automo- bile is not incidental to the use of the store.*^ Sec. 162. Hack stands — taxicab service for hotel. Although a hotel proprietor may have no right to rent an automobile kept standing in front of his hotel except to his guests, he is not to be convicted of unnecessarily obstructing the streets because a machine happened to be rented to one coming into the hotel who proved not to be a guest, w^here there is no evidence that the machine delayed or hindered traffic along the street.^^ It has been held that an agreement by a hotel company purporting to ''lease'' the privilege of taxicab service for the hotel for a specified sum is not a lease, but a license, and where such license is not exclusive and it is not shown that irreparable damage will ensue from a breach thereof, and the license has been surrendered by one of the licensees, the plaintiff's partner, his suit for an injunction restraining the hotel from granting a like license to other parties does not lie, for if there was any breach of the agree- ment the remedy at law is adequate.^* Sec. 163. Hack stands — soliciting passengers. A municipal ordinance may forbid the operators of taxicabs from soliciting customers or passengers for hire upon rail- so. United States Restaurant Co. v. Columbia, 25 App. D. C. 179. Schulte. 67 Misc. (N. Y.) 633, 124 82. Lynch v. Murphy Hotel Co., 130 N. Y. Suppl. 835. X. Y. App. Div. 691. 115 N. Y. Suppl. 81. Gassenheimer v. District of 465. 192 The Law of Automobiles. road premises or docks of transportation companies, or other places. Or it may be required that no person shall solicit passengers for a public hack upon the streets except the driver when sitting on the box of his vehicle.^ It is the intent of such a regulation to protect the traveling public from annoy- ance by drivers of taxicabs, and to prevent such drivers from annoying prospective passengers.** Such a regulation does not necessarily prohibit drivers from standing their vehicles at such places when they are not soliciting patronage.^ It may, therefore, be important to determine the exact meaning of the term ' ' soliciting. ' ' In one case, a charge was sustained which defined '^ soliciting" as follows: '' 'Soliciting' within the meaning of said ordinances, is to ask for and to seek to obtain the right and privilege of passengers to transfer such passengers or their baggage for hire by actual persuasion or persistent entreaty, and that the presence of any of the plain- tiff's officers, agents, servants, or employees, either in or not in uniform of the plaintiff, along, or accompanied by any vehicle of the plaintiff, with or without its name thereon, is not 'soliciting' within the meaning of said ordinance. " ^^ 83. Yellow Taxicab Co. v. Gaynor, 82 the street, mute, with his cab, could Misc. 94, 143 N. Y. Suppl. 279, atfirmed not be construed as soliciting, under on opinion below, 159 App. Div. 893. the terms of the ordinance. The city 84. Seattle Taxicab & Tr. Co. v. plainly did not intend that, if a taxi- Seattle, 86 Wash. 594, 150 Pac. 1134. cab driver was sitting upon the seat of 85. Seattle Taxicab & Tr. Co. v. his cab at some other place in the city, Seattle, 86 Wash. 594, 150 Pac. 1134. saying nothing, he would be subject to 86. Seattle Taxicab & Tr. Co. v. arrest because he was without the Seattle, 86 Wash. 594, 150 Pac. 1134, places named in the ordinance. The wherein it was said: "We think no police oflficers of the city of Seattle, valid objection can be made to this prior to the bringing of this action, definition of the word 'soliciting,' as had construed the ordinance to pro- the same is used in the ordinance in hibit taxicab drivers from being at any question. As stated above, the purpose other place than the places mentioned of this ordinance was to protect trav- in the ordinance, whether they were ac- elers so that they might not be sub- tively soliciting or not. The fact that jected to inconvenience or annoyance, the driver wore a cap or uniform, or and the words 'soliciting customers or upon his cab was a designation of the passengers for hire' mean that drivers, fact that the cab was for hire, was con- when asking persons to become pratrons strued by the police officers as an act of their cabs, shall be at a certain of solicitation, for which the driver was place or places. The mere fact that arrested. It was to prevent this that the driver of a cab was standing upon the action was brought. We think the Public Cakriage for Hire, Jitneys, Etc. 193 Sec. 164. Routes and schedules. The fixing of routes and schedules for jitneys is an appro- priate exercise of the regulatory power of States and muni- cipalities.^^ A jitney regulation may properly require the proprietor to maintain a regular schedule of his trips for certain hours.^ And a jitney owner may be required to oper- ate over a designated route and no other, and on a fixed schedule without repetition in whole or in part of the sched- uled trips, and that the machines shall be operated a certain number of hours during each day.^ And it may also be re- quired that the jitney shall not stop to accept or discharge passengers in congested parts of the city at points other than near the middle of blocks.''*' Sec. 165. Punishing passenger for failure to pay fare. A municipal ordinance making it a misdemeanor to ride in a vehicle used for hire and to refuse to pay the fare therefor, is contrary to a constitutional provision forbidding imprison- ment for debt.^^ court very properly defined what con- stituted 'soliciting,' within the mean- ing of the ordinance." Solicitation. — Solicitation of patron- age in order to give a vehicle a public character, may be practiced by other moans than voice. Any acts or conduct intended and calculated to invite the patronage of intending passengers amounts to solicitation. State v. Shif- frin, 78 Conn. 220, 103 Atl. 899. 87. Hutson v. Des Moines, 176 Iowa, 455, 156 N. W. 883. 88. Ex parte Lee, 28 Cal. App. 719, 153 Pac. 992; Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781 ; Booth v. Dallas (Tex. Civ. App.), 179 S. W. 301. 89. Hutson v. Des Moines, 176 Iowa, 455, 156 N. W. 883; Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687; West v. Asbury Park (N. J.), 99 Atl. 190; Booth v. Dallas (Tex. Civ. App.), 179 S. W. 301 ; Allen v. City of Belling- ham, 95 Wash. 12, 163 Pac. 18. 13 90. West V. Asbury Park, 89 N. J. L. 402, 99 Atl. 190; Allen v. City of Bel- lingham, 95 Wash. 12, 163 Pac. 18. 91. Kansas City v. Pengilley, 269 Mo. 59, 189 S. W. 380, wherein it was said: "It is urged the fact the taxi- cab company was a common carrier ought to induce a different conclusion. There is no direct proof supporting the fact assumed. The taxicab company is in no wise at the mercy of its patrons. It may require payment in advance if it so desires, and thus protect itself. Regulations may be imposed upon patrons of carriers and fines may be assessed for their violation, but such regulations must accord with applicable constitutional provisions. Further, the ordinance is not limited to common car- riers, but applies, by its terms, to every horse-drawn or power-propelled vehicle hired for the conveyance of goods or passengers. Again, it is not confined to licensed vehicles." 194 The Law of Automobiles. Sec. 166. Taximeters. For some time there have been in operation public vehicles with instruments called "taximeters'' attached, that compute the fare to be paid by those carried according to the distance traveled and the time for which the vehicle is engaged. Pre- sumably these instruments are fairly accurate, although there is no safeguard against "short measure" other than that which may be found in the criminal statutes. A taximeter may be too fast or too slow. By municipal ordinances in some cities the matter of taximeters is regulated, provisions being made as to the appointment of inspectors to test and inspect them, as to sealing up the case containing the working parts of the taximeter, as to a certificate of inspection as prere- quisite to a license, as to a record being kept of the owner of the vehicle, and of the description of the taximeter and the vehicle, and also numerous other details. In regulating taxicabs and public hacks, it has been held that a municipal corporation may require the installation of correct taximeters and may impose a punishment for a failure to obey the regulation.^^ rpj^^ purpose of such a requirement is to enable the passenger to determine the distance traveled and the rate of fare due therefor.»» And a municipality may make a distinction between classes of vehicles on which taxi- meters are necessary. Thus, it may impose the requirement as to motor-driven vehicles designed to carry not more than four persons, while the same requirement is not made as to vehicles having a larger carrying capacity." 92. Yellow Taxieab Co. v. Qaynor, 82 pointed by the mayor of the city to in- Misc. (N. Y.) 94, 143 N. Y. Suppl. 279, vestigate this whole subject of taxieab affirmed on opinion below, 159 App. regulation have both reported that such Div. 893. frauds have been commonly committed. 93. Yellow Taxieab Co. v. Gaynor, 82 The requirement that meters shall be Misc. (N. Y.) 94, 143 N. Y. Suppl. 279, used is not only necessary if the frauds affirmed on opinion below, 159 N. Y. heretofore practiced are to be pre- App. Div. 893. " The requirement that vented, but is obviously so just and meters shall be used has been shown reasonable a regulation as not to jus- by experience to be essential in order tify further discussion." Yellow Taxi- to check the frauds which might easily cab Co. v. Gaynor, 82 Misc. 94, 143 be perpetrated upon passengers. The N. Y. Suppl. 279, affirmed on opinion commissioner of accounts of the city of below, 159 N. Y. App. Div. 893. New York and the commission ap- 94. Yellow Taxieab Co. v. Gaynor, 82 Public Cabeiagb fob HlrE; Jitneys^ Etc. 195 Sec. 167. Rate of fare. The common law duty is imposed on all carriers of pas- sengers for hire to charge for the service not more than a ** reasonable" rate. Within reasonable limitations a muni- cipal corporation generally has the power to fix the rates of fare which shall be charged within its limits for the carriage of passengers for hire in motor vehicles.'^ And when such a regulation is enacted, the common law right of the vehicle owner is abridged so that, while the rate must still not ex- ceed a reasonable limit, it must also not exceed the specified rate. It may be that a regulation which made the rate so low that it was impossible to operate motor vehicles under them at a profit would be unreasonable and ineffective, but the burden is upon the person attacking the ordinance to show the unreasonableness of the rate permitted.** It is not neces- sarily objectionable for an ordinance to fix a lower rate of fare for passengers in motor-driven vehicles than for those in horse-drawn carriages." Misc. 94, 143 N. Y. Suppl. 279, wherein it was said: "The purpose of a taxi- meter is to enable the occupant of the cab to determine the distance traveled and the rates of fare therefor. It is a matter of common knowledge that the distance traveled is more easily ascer- tainable in the case of horse-drawn than in the case of motor-driven vehicles. The fact that motor-driven vehicles de- signed to carrj' not more than four per- sons are required to have taximeters, while the same requirement is not made as to motor-driven vehicles of greater carrying capacity, cannot be said to be unreasonably discriminatory. The smaller cabs designed to carry a few persons are more generally engaged in transit business, while touring cars and sight-seeing vehicles designed to carry a larger number of persons are more generally employed to travel a fixed route between known points or are om ployed for a definite time at an agreed rate. In determining whether or riot a provision of an ordinance is dis- criminatory, it is always to be borne in mind that regulations which are de- signed to promote public convenience are not to be condemned, and whether or not such regulations are adapted to this end rests largely within the dis- cretion of the governing body of the city." 95. Commonwealth v. Slocum, 230 Mass. 180, 110 N. E. 687; Fonsler v. Atlantic City, 70 N. J. Law, 125, 56 Atl. 110; Y'ellow Taxicab Co. v. Gay- nor. 82 Misc. (N. Y.) 94, 143 N. Y. Suppl. 279. affirmed on opinion below, 159 App. Div. 893; Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781. 96. Yellow Taxicab Co. v. Caynor, 82 Misc. (N. Y.) 94, 143 N. Y. Suppl. 279, affirmed nn opinion below, IS^ App. Div. 893. 97. Yellow Taxicab Co. v. Gajmor, 82 Misc! (if. Y.) 94, 143 N. Y. Suppl. 279, affirmed on opinion below. 159' App. tiiy. 803. 196 The Law of Automobijijes. Sec. 168. Miscellaneous regulatory matters. Various regulations not specifically discussed in the fore- going paragraphs have been imposed on the operation of jitneys and other vehicles used for hire and have been sus- tained by the courts. Thus, it is proper to require a licensed vehicle to carry all persons applying for passage and tender- ing the legal fare.^^ A tax of five per cent, of the gross re- ceipts may be imposed on jitney owners in some jurisdic- tions.^^ And a regulation which provides for a convenient notification to intending passengers whether the vehicle is in use, is not unreasonable.^ So, too, it may be unlawful for the operator to allow any one to ride on the same seat with him.^ Or passengers rtiay be prohibited from riding on the doors of motor buses.^ And a jitney operator may be forbidden to carry passengers beyond the seating capacity of the machine, and to maintain a light in the tonneau during the hours of darkness.^ The proprietor of a jitney route may be required to submit his machines once each week for the inspection of a municipal official.^ The use of trailers,^ dangerous speed,' or the passage of a railway crossing without stopping,* may be forbidden. The jitney owner may be required to display his license, a number plate issued by the municipality, or a sign with information concerning its route, schedules, and other matters.' He may be required to execute a power .of 98. Fonsler v. Atlantic City, 70 N. J. 190; Booth v. Dallas (Tex. Civ. App.), Law, 125, 56 Atl. 119; West v. Asbury 179 S. W. 301; Allen v. City of Belling- Park, 89 N. J. L. 402, 99 Atl. 190. ham, 95 Wash. 12, 163 Pac. 18. 99. West V. Asbury Park, 89 N. J. L. 5. Booth v. Dallas (Tex. Civ. App.), 402, 99 Atl. 190. 179 S. W. 301. 1. Fonsler v. Atlantic City, 70 N. J. 6. Hutson v. Des Moines, 176 Iowa, Law, 125, 56 Atl. 119. 455, 156 N. W. 883. 2. Yellow Taxicab Co. v. Gaynor, 82 7. West v. Asbury Park, 89 N. J. L. Misc. (N. Y.) 94, 143 N. Y. Suppl. 279, 402, 99 Atl. 190. affirmed on opinion below, 159 N. Y. 8. Hutson v. Des Moines, 176 Iowa, App. Div. 893. 455, 156 N. W. 883. 3. City ..f Dallas v. Gill (Tex. Civ. 9. Hutson v. Des Moines, 176 Iowa, App.), 199 S. W. 1144. 455, 156 N. W. 883; Commonwealth v. 4. Hutson V. Des Moines, 176 Iowa, Slocum, 230 Mass. 180, 119 N. E. 687; 455, 156 N. W. 883; Commonwealth v. West v. Asbury Park, 89 N. J, L. 402, Slocum, 230 Mass. 180, 119 N. E. 687; 99 Atl. 190; Allen v. City of Belling- Weat V. Asbury Park (N. J.), 99 Atl. ham, 96 Waah. 12, 163 Pac. 18. Public Camiiage for Hiee, Jitneys, Etc. 197 attorney authorizing one to acknowledge service of process in actions against him,^" A municipality may impose a penalty on the jitney owner for a violation of the regulations." Sec. 169. Liability for injury to passenger — in general. Common carriers of passengers, among which are to be classed jitneys, taxicabs, and other motor vehicles carrying passengers for hire, are bound to exercise a high degree of care for the safety of their passengers.^ In this respect, their legal situation may be different from that of other vehicular travelers, who are required to exercise merely ordinary care under the circumstances." If, by reason of their failure to 10. West V. Asbury Park, 89 N. J. L. 402, 90 Atl. 190. See also Gillard v. Manufacturer's Casualty Ins. Co., 93 N. J. L. 215, 107 Atl. 446. 11. Hutson V. Des Moines, 176 Iowa, 455, 156 N. W. 883. 12. Todd V. Chicago City Ry. Co., 197 m. App. 544; Boland v. Gay, 201 111. App. 359 ; TMcKellar v. Yellow Cab Co. (Minn.), 181 N. W. 348; Carlton v. Boudar, 118 Va. 521, 88 S. E. 174, 4 A. L. R. 1480; Singer v. Martin, 96 Wash. 231, 164 Pac. 1105; McDorman V. Dunn, 101 Wash. 120, 172 Pac. 244, 4 A. L. R. 1500. "Appellant Martin as a common carrier owed to respond- ent as his passenger the duty of exer- cising the highest degree of care com- patible with the practical operation of the car. That duty would not be met as a matter of law by a mere observ- ance of the law of the road. His negli- gence, if any, as between him and his passenger, is to be measured by his duty as a common carrier, not by his duty to other users of the highway." Singer v. Martin, 96 Wash. 231, 164 Pac. 1105. Instnictions. — In an action for per- sonal injuries sustained by a passenger riding in a taxicab, an instruction that "common carriers of persons for hire are required to do all that human care. vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted and the practical prosecution of the business, to prevent accidents to passengers while being carried by them," held to state the correct rule as to the liability of a carrier of passengers by taxicab. Bo- land V. Gay, 201 111. App. 359. Sightseeing automobiles are regarded as common carriers and owe to the pub- lic the same degree of care to transport them in safety as other common car- riers of passengers owe. McFadden v. Metropolitan St. Ry. Co., 161 Mo. App. 552, 144 S. W. 168. Between chauffeur and railroad com- pany. — While, as between the chauff'eur of a taxicab and a passenger therein, the chauffeur is required to exercise a high degree of care, no such degree of care is required as between the chauf- feur and a railroad company in an ac- tion for injuries received by the chauf- feur at a grade crossing. Southern Ry. Co. V. Vaughn's Adm'r, 118 Va. 693, 88 S. E. 305, L. R. A. 1916 E. 1222. Extending arm out of window of jitney, not necessarily contributory negligence. Thibodeau v. Hamley fN. J.), 112 Atl. 320. IS. Section 277. 198 The Law of Automobiles. perform this duty, a passenger receives an injury, the carrier may be liable." Where a collision occurs by reason of the concurring negligence of the operator and the driver of an- other vehicle on the highway, a passenger who is thereby in- jured may maintain an action against both drivers jointly .^^ And this is true although the high degree of care required of the carrier of passengers is different from that required of the one driving the other vehicle." So, in the case of a col- lision between a street car and a taxicab, a passenger in the taxicab may join as defendants both the operator of the taxi- cab and the street railway company; and if he shows negli- gence on the part both of the motorman and the taxi driver, he may recover against both." One traveling in an autobus used for carrying passengers is, in the absence of counter- vailing circumstances, presumed to be a passenger for hire.^^ 14. California. — i^aker v. Western Auto Stage Co. (Cal. App.), 192 Pac. 73. Colorado. — Seeing Denver Co. v. Morgan (Colo.), 185 Pac. 339. Illinois. — Johnson v. Coey, 237 111. 88, 86 N. E. 678; Swancutt v. Trout Auto Livery Co., 176 HI. App. 606; Todd V. Chicago City Ey. Co., 197 111. App. 544; Dunne v. Boland, 199 111. App. 308. Kansas. — Bean-Hogan v. Kloehr, 103 Kans. 731, 175 Pac. 976. Kentucky. — See Denker Transfer Co. V. Pugh, 162 Ky. 818, 173 S. W. 139. New YorTc. — Piper v. New York State Bys., 185 N. Y. App. Div. 184, 172 N. y. Suppl. 838. Pennsylvania. — Muncey v. Pullman Taxi Service Co., 112 Atl. 30. Texas. — Routledge v. Rambler Auto Co. (Civ. App.), 95 S. W. 749. Vermont. — See Desmarchier v. Frost, 91 Vt. 138, 99 Atl. 782. Virginia. — Carlton v. Boudar, 118 Va. &21, 88 S. E. 174, 4 A. L. R. 1480. Washington. — Bogdan v. Pappas, 95 Wash. 579, 164 Pac. 208. Wisconsin. — Hannon v. Van Dycke Co., 154 Wis. 454, 143 N. W. 150. Canada. — Hughes v. Exchange Taxi- cab, 11 D. L. E. 314. Route. — A taxicab driver may be guilty of negligence in taking a dan- gerous route to go to the passenger's destination instead of following a safer course. Hathaway v. Coleman, 35 Cal. App. 107, 169 Pac. 414. 15. Cairns v. Pittsburgh, etc., Ey. Co., 66 Pitts. Leg. Joum. (Pa.) 817; Carl- ton V. Boudar, 118 Va. 521, 88 S. E. 174; McDorman v. Dunn, 101 Wash. 120, 4 A. L. R. 1500. "We are of opinion that the plaintiffs in error were jointly and severally liable; that their negligence concurred and produced a single indivisible result, and they were properly joined as defendants, although there was no common duty, common de- sign, or concert of action between them." Carlton v. Boudar, 118 Va. 521, 88 S. E. 174. 16. Carlton v. Boudar, 118 Va. 521, 88 S. E. 174, 4 A. L. R. 1480. 17. Shields v. F. Johnson & Son Co., 132 La. 773,61 So. 787. 18. Meier v. Golden State Auto Tour Corp. (Cal. App.), 195 Pac. 290. Public Carriage for Hire^ Jitneys, Etc. 199 Sec. 170. Liability for injury to passenger — assault on pas- senger. A taxicab passenger is entitled to proper and decorous treatment from the carrier and his servants during the course of transportation, and this involves an assurance that the servant in charge of the conveyance will neither assault nor insult him.^ Sec. 171. Liability for conduct of driver. One who rides in a jitney or taxicab as a passenger is not generally liable for the negligent acts of the chauffeur caus- ing injury to a third person.^ The chauffeur is the servant of the proprietor of the machine, not of the passenger, and the general rule is that the proprietor alone is responsible for his carelessness.^^ One who hires a public hack and gives the driver instructions where to go, but exercises no other control over the conduct of the driver, is not responsible for the driver's negligence.^^ There may be exceptions to the gen- eral rule, as when the passenger interferes with the operation of the machine. Thus, if the chauffeur exceeds the speed limit at the request of the passenger, the latter may be liable for criminal prosecution.^ And a passenger may be liable 19. Fornoff v. Columbia Taxicab Co., ney was ended, plaintiff wa^ not dis- 179 Mo. App. 620, 162 S. W. 699, charged by the carrier at the time the wherein the court said: "When the assault was made upon him." relation of passenger and carrier is 20. Little v. Hackett, 116 IT. 8. 366, established, the passenger surrenders 29 L. Ed. 652, 6 Sup. Ct. 391 ; Dria- himself iaito the care and custody of coll v. Towle, 181 Mass. 416, 63 N. E. the carrier. This implies an obligation 923 ; Donnelly v. Philadelphia & Read- on the part of the carrier, not only to ing Co.^ 53 Pa. Super. Ct. 78 ; Cairns v. transport the passenger to destination, Pittsburgh, etc., Ry. Co., 66 Pitts. Leg. if he properly deports himself, but to Journ. (Pa.) 817; Hannon v. Van discharge him on arrival free from as- Dycke Co., 154 Wis. 454, 143 N. W. sault on the part of its servants; that 150; Donovan v. Syndicate, L. B. is, in the proper manner. The mere (1893), 1 Q. B. (Eng.) 629. stepping of the passenger from the 21. Nell v. Godstrey (K. J.), 101 Atl. vehicle into the street at the end of 50. And see sections 628, 643, 645. his journey is not enough to acquit this 22. Little v, Hackett, 116 U. S. 366, obligation, for the passenger is to be 29 L. Ed. 653, 6 Sup. Ct. 391. discharged and protected from assault 23. Commonwealth v. Sherman, 191 by the servants while being discharged Mass. 439, 78 N. E. 98. And see see- by the carrier. Even though the jour- tion 726. 200 The Law of Automobiles. where he participates in or sanctions the negligence of the driver ; but such a situation is not shown merelj' by evidence that the passenger at one time told the chauffeur to **be care- ful. "^^ Responsibility is charged against the proprietor of a jitney route or taxicab, although the driver receives for his compensation a share of the proceeds earned by the vehicle.^^ And the fact that the driver hires the- car at a prescribed rate per diem, does not relieve the owner from responsibility for the acts of the driver.^" Public policy forbids the jitney pro- prietor to make a contract with his drivers so as to relieve him from responsibility for their negligent conduct. But, when a jitney driver is directed to adhere to a certain route but he deviates therefrom to a street where the license does not authorize the operation of the jitney, he is not acting within the scope of his employment and his employer is not liable for his negligent acts while he is so deviating.^^ But, when he is returning, he may be thought to be within the scope of his employment.^ Sec. 172. Imputation of negligence of driver to passenger. The general rule that a passenger in a public hack is not chargeable with the negligence of the driver, applies when an injury is caused to the passenger by the negligence of a third person, such as a railroad or street railway company or per- son using another vehicle, who seeks to escape liability by charging the contributory negligence of the driver to the pas- senger.^ As a general proposition, the negligence of the driver is not to be imputed to the passenger, and the latter 's freedom from contributory negligence is to be determined 24. Hannon v. Van Dyeke Co., 154 28. Smith v. Yellow Cab Co. (Wis.), Wis. 454, 143 N. W. 150. 180 N. W. 125. And see section 633. 25. Edwards v. Yarbiough (Mo. 29. Thompson v. Los Angeles, etc., App.), 201 S. W. 972; Fitzgerald v. R. Co., 165 Cal. 748, 134 Pac. 709; Cardwell (Mo. App.), 226 S. W. 971; Eckels v. Mitsehall, 230 111. 462, 82 King V. Breham Auto Co. (Tex. Civ. N. E. 872; Zalotuchin v. Metropolitan App.), 145 S. W. 278. St. Ry. Co., 127 Mo. App. 577, 106 S. 26. McDonald v. Lawrence, 170 W. 548; Wolf v. Sweeney (Pa.), 112 Wash. 576, 170 Pac. 576. Atl. 869 ; Cairns v. Pittsburgh, etc., Ry. 27. Youngguist v. L. J. Droese Co., Co., 66 Pitts. Leg. Jour. 817; Zucht v. 167 Wis. 458, 167 N. W. 736. Brooks (Tex. Civ. App.), 216 S. W. 684. Public Cahriage for Hire, Jitneys, Etc, 201 solely from his own acts and omissions.^** The question is quite similar to that involved when a guest riding in a pleasure car receives an injury from the joint negligence of the owner and of the driver of another vehicle; in that class of cases, the negligence of the owner or driver is not imputed, as a gen- eral rule, to a guest in a machine.^^ Sec. 173. Rights of proprietor of vehicle. The proprietor of a motor vehicle used for the carriage of passengers for hire is entitled to recover the legal fare from the passenger.22 ^^^5 obligation is so clear that there has been little occasion for court decisions. The proprietor of a public hack also has a right of recovery against other travelers whose negligence has occasioned injury to the machine. And, when the proprietor is riding in the carriage at the time of a collision with another motor vehicle and thereby receives per- sonal injuries, he may have a cause of action against the operator of the other conveyance.^^ The fact that the owner 30. Thompson v. Los Angeles, etc.. B. Co., 165 Cal. 748, 134 Pac. 709; Broussard v. Louisiana Western R. Co., 140 La. 517, 73 So. 606; Rush v. Metro- politan St. Ry. Co., 157 Mo. App. 504, 137 S. W. 1029; Cairns v. Pittsburgh, etc., Ry. Co., 66 Pitts. Leg. Jour. 817; Chicago, etc., R. Co. v. Wentzel (Tex. Civ. App.), 214 S. W. 710; Dallas Ry. Co. V. Eaton (Tex. Civ. App.), 222 S. W. 318; Wentworth v. Waterbury, 90 Vt. 60, 96 Atl. 334; Bancroft v. Cote, 90 Vt. 358, 98 Atl. 915. Sec also United States v. Manabat, 28 Philip- pine, 560. 31. Section 679. 32. Liability to pay fare.— It sliould be understood that the liability of a passenger to pay the rate named on the taximeter or otherwise posted, arises out of contract. When one engages a taxi- cab he impliedly agrees to abide by the posted rates provided they do not ex- ceed the legal limit. 33. Moore v. Hart, 171 Ky. 725, 188 S. W. 861 ; McClung v. Pennsylvania Taximeter Cab Co., 252 Pa. 478, 97 Atl. 694. 34. Moore v. Hart, 171 Ky. 725, 188 S. W. 861, wherein the court said: "It is urgently insisted upon us that the fact of plaintiff riding upon the steps is not only contributory negligence, but such as to prevent recovery herein, and to havQ authorized a peremptory in- struction for the defendant. The rule as to causal connection between the act complained of and the effect produced, to which we have hereinbefore averted, has peculiar application here. It is perfectly manifest that the place where plaintiff was riding was altogether safe, and no injury would have happened to him if his car had not been overturned. His position is entirely unlike that of a passenger protruding his arm or some parts of his body, out from the car, and thereby sustaining injuries. In such a case it is the universal rule that such acts on the part of the passenger 202 Thf: Law of Automobiles. was standing on a step at the rear,^* or was sitting on the floor,^^ at the time of the collision, does not bar his remedy. constitute such contributory negligence as to prevent a recovery in a suit be- tween him and the railroad company, there being no negligent act of the de- fendant shown; but it could hardly be contended that if the passenger thus offending is injured through a negligent collision, or because of a defective track whereby a wreck was precipitated, ho would be deprived of recovering from the defendant because of his negligence, as stated above. It will at once be Been that his negligence, of the char- acter stated, was no part of the proxi- mate cause of the injury which he might sustain in the collision or the de- railment of the car. But the case of a passenger becoming injured while wrongfully exposing himself to danger has no analogy to the instant case. The one deals with contractual relations be- tween passenger and carrier, while the other sounds altogether in tort. The analogy would be more marked if a third party, while the passenger was oc- cupying a dangerous or careless posi- tion on the train, should negligently in- jure him. Surely it could not be con- tended that because the passenger was negligent as between himself and car- rier such negligence would prevent his recovering damages for such injuries from the one committing the tort. In the instant case the position of plain- tiff on his automobile truck is an inci- dent which afforded an opportunity for the negligence of the defendant co have the more easily produced the injury, but this is the only effect that can be given to it. It, in no view of the case, justified the collision, or furnished a de- fense to a suit to recover damages for the injuries." 35. McClung v. Pennsylvania Taxi- meter Cab Co., 252 Pa. 478, 97 Atl. 694, wherein it was said: "Plaintiff was the owner and in charge of his car, and it is not clear that his position thereon was one of danger, or that he was more liable to injury there than elsewhere. It bears no analogy to the case of a passenger voluntarily stand- ing on the bumpers or footboard of a car, or riding with his feet between a car and the engine. The cause of the accident was the violent collision, re- sulting as the jury found from defend- ant's negligence, and not because of the place plaintiff occupied on his car. His being there was merely a condition, not the cause of the accident. A per- son injured by the negligence of an- other is not deprived of all remedy merely because at the time he was oc- cupying an unusual position in a con- veyance, unless he thereby co-operated in causing his injury." Private Hire of Automobiles. 203 CHAPTER X. PRIVATE HIRE OF AUTOMOBILES. Section 174, Scope of chapter. 175. Nature of contract. 176. Liability for injury from oporation of machine — liability of owner for operation by hirer. 177. Liability for injury from operation of machine — liability for acta of driver furnished by owner. 178. Liability for injury from operation of machine— liability for acta of driver furnished by hirer. 179. Liability for injury from operation of machine — injury to passenger. 180. Injury to machine — care to be exercised by hirer. 181. Injury to machine — loss of machine. 182. Injury to machine — conversion of machine by hirer. 183. Injury to machine — deviation from agreed route. 184. Injury to machine — right of action by hirer for injury. 185. Duties and liabilities of parties — possession of machine. 186. Duties and liabilities of parties — duty to carry to destination. 187. Duties and liabilities of parties — termination of hiring. 188. Duties and liabilities of parties — surrender of machine. 189. Duties and liabilities of parties — compensation for hire. Sec. 174. Scope of chapter. This chapter is intended to cover the nature of the contract between the o^mer of a motor vehicle and one to whom he hires the same for a consideration, and the legal results which follow such relationship. In another chapter is discussed the public carriage of passengers for hire, such as jitneys, taxi- cabs, omnibuses, etc.^ This chapter relates to the private use of another's machine and not to the public use. The pro- prietor of the hired machine is described in this chapter as the ** owner," and the one procuring the use thereof as the ^' hirer." Sec. 175. Nature of contract. The hiring of an automobile from the owner creates in law a form of bailment known as locatio rei. Where the owner of personal property lets it to another party, who is to pay 1. Chapter IX. 204 The Law of Automobiles. for the use of it, the contract is* for their mutual benefit, which fact is important in determining the rights and liabili- ties of the parties.^ Sec. 176. Liability for injury from operation of machine — liability of owner for operation by hirer. The owner of an automobile who has let it to another is not generally responsible for any negligence of the latter in the operation of the machine.* The fact that the hirer may be unskilled is held not to change the rule in this respect; ex- cept it might appear that the latter is an immature child, or clearly lacking in mental capacity or intoxicated, or the like.* 2. Parsons on Contracts, Vol. II (9th Ed.), 134. According to the foreign and Bomau law, the letter, in virtue of the con- tract, impliedly engages to allow to the hirer the full use and enjoyment of the thing hired, and to fulfill all hia own engagements and trusts in respect to it, according to the original inten- tion of the parties: " Proestroe fnii licere, uti licere." This implies an ob- ligation to deliver the thing to the hirer; to refrain from every obstruc- tion to the use of it by the hirer during the period of the bailment; to do no act which shall deprive the hirer of the thing; to warrant the title and right of possession to the hirer, in order to enable him to use the thing, or to per- form the service; to keep the thing in suitable order and repair for the pur- poses of the bailment; and, finally, to warrant the thing free from any fault, inconsistent with the proper use or en- joyment of it. These are the main ob- ligations deduced by Pothier from the nature of contract; and they seem gen- erally founded in unexceptionable rea- soning. Story on Bailments, p. 317. 3. Neubrand v. Kraft, 169 Iowa, 444, 151 N. W. 455, L. R. A. 1915 D. 691; Atkins V. Points, 148 La. — , 88 So. 231. Sections 642, 643, 666. 4. Neubrand "v. Kraft, 169 Iowa, 444, 151 N. W. 455, L. B. A. 1915 D. 691, wherein the court said: "Tn an argu- ment for appellant counsel contends that one who lets an automobile for hire is responsible for the proper skill and care of the person to whom he in- trusts it. In support of this position we are cited to certain English cases where the owner of a cab is held liable for injuries resulting from the negli- gence of the driver. But such cases are parallel neither in fact nor in prin- ciple with the one now before us. The proprietor of a car or hack stand lets his carriages supplied with drivers of liis own selection and in his own em- plojTuent. /WTiile to a certain extent the driver under such circumstances be- comes the servant of the hirer, he dOea not cease to be the servant and repre- sentative of the cab-owner so far as the immediate care and management of the carriage and its motive power is con- cerned, and if by his careless or reck- less driving a collision occurs upon the street, and a third person is thereby in- jured without fault on his own part, the owner is very reasonably and prop- erly held to respond in damages. But the owner of a livery stable or garage making a business of letting teams or carriages or motor cars to customers who propose and expect to do their own driving has never been held to any such Private Hire of Automobiles. 205 Where the owner of an automobile delivered it to another under an agreement that the latter was to use it for hire and to pay the purchase price out of the monej^ derived from its use, and the former owner never had the control of the ma- chine after it left his possession and never rode in it, and such hirer was not in his employ or under his control or direction, the negligence of the hirer is not chargeable to such owner.^ Sec. 177. Liability for injury from operation of machine — liability for acts of driver furnished by owner. When an automobile is hired and a chauffeur is also fur- nished by the OAvner, in whose employ he is and by whom he is paid, and the hirer has no authority over him except to direct him where he wishes to go, the chauffeur is considered the servant of the o^Tier ; and the owner, not the hirer, is re- sponsible for his acts of negligence.^ The principle involved rule of responsibility by any court so far as the precedents have been called to, our attention, and we think there is no general rule or principle necessitat- ing such conclusion. Cases may be imagined, perhaps, where an owner reck- lessly lets his spirited team or his auto- mobile to an immature child, or to a person who is intoxicated or otherwise manifestly incompetent to manage or control it, with the natural result of a collision upon the public street and con- sequent injury to others. It may well be that under such circumstances the owner would be held liable in damages not because the hirer is his servant or because as owner he is required to vouch to the public for the competency of all persons to whom he may let his teams or his cars for hire, but because he knew the incompetency of this particu- lar driver and the imminent peril to which he thereby exposed others who were in the lawful use of the streets, and as a person of ordinary prudence should '.have refrained from so doing. Nothing of this manifest want of pru- dence is shown in this case now under consideration." 5. Braverman v. Hart, 105 N. Y. Suppl. 107. 6. United States. — Little v. Hackett, 116 U. S. 366, 29 L. Ed. 652, 6 Sup. Ct. 391. Arkansas. — Forbes v. Reinman, 112 Ark. 417, 166 S. W. 563, 51 L. R. A. (N. S.) 1164. Illinois.— Bnnne v. Bolnnd, 199 HI. App. 308. See also Johnson v. Coey, 237 111. 88, 86 N. E. 678, 21 L. E. A. (N. S.) 81. Louisiana. — Wilkinson v. Myati- Dicks Motor Co., 136 La. 977, 68 So. 96; Broussard v. Louisiana Western R. Co., 140 La. 517, 73 So. 606. Massachusetts. — Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Shepard V. Jacobs, 204 Mass. 110, 90 N. E. 302, 26 L. R. A. (N. S.) 442; Tornroos v. R. H. White Co., 220 Mass. 336. 107 N. E. 1015. Minnesota.— Myers v. Tri-State Au- tomobile Co., 121 Minn. 68, 140 N, W. 184, 44 L. R. A. (N. S.) 113. "Both 206 The Law of Automobiles. is the same as if the owner of the machine were letting a horse and carriage together with his driver for the hire of another." The hirer, however, and not the owner, may become chargeable if the hirer assumes the management of the vehicle, so that the driver becomes his servant.^ One who lets an auto- mobile and furnishes a c^hauffeur for the purpose of convey- ing the hirer and his guests enters into a contract of hire for on principle and authority we decline to follow the rule that the defendant is liable only for the exercise of care in the selection of the driver. We ap- ply the ordinary rule of respondeat superior to this case, and hold that where a dealer in automobiles and owner of a garage lets a car for hire and furnishes a driver, and the hirer exercises no control or supervision over the driver except to direct him where to go and what route to take, and to caution him against improper driving, the owner is responsible for the negli- gence of the driver, and the hirer may recover from the owner in damages for an injury caused by the driver's negligence. The fact that the defend- ant only occasionally let automobiles for hire does not appeal to us as im- portant. The rule does not depend on the frequency with which such an act is done." Myers v. Tri-State Auto Co., 121 Minn. 68, 140 N. W. 184. New Jersey. — Eodenburg v. Clinton Auto & Garage Co., 85 N. J. L. 729, 91 Atl. 1070. New YorTc. — Waldman v. Picker Bros., 140 N. T. Suppl. 1019. North CarolirM. — Cates v. Hall, 171 N. Car. 360, 88 S. E. 5^4. Pennsylvania. — Wallace v. Keystone Automobile, 239 Pa. 110, 86 Atl. 699; Neumiller v. Acme Motor Car Co., 49 Pa. Super. Ot. 183. Texas. — Boutledge v. Rambler Auto Co. (Civ. App.), 95 S. W. 749. Wisconsin. — Gerretson v. Rambler Garage Co., 149 Wis. 528, 136 X. W. 182, 40 L. E. A. (N. S.) 457. England. — Donovan v. Syndicate, L. B. (1893), 1 Q. B. 629. See also section 643. 7. Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, wherein the court said: "If the de- fendants had furnished horses, a car- riage and a driver under a similar con- tract, instead of an automobile and a driver, there would be no doubt of their liability for the negligence of the driver in the management of the team. The question is whether the same result should be reached upon the facts of this case. Tlie analogy between the two kinds of contract is very close. The management of an automobile properly can be trusted only to a skilled expert. The law will not permit such a vehicle to be run in the streets ex- cept by a licensed chauffeur of ap- proved competency. The danger of great loss of property by the owner, as well as injury to the chauffeur, his ser- vant, is such as to make it of the highest importance that care should be exercised in his interest, and that the control and management of the ma- chine should not be given up to the hirer. The reasons for applying thia rule in a case like the present are fully as strong as when a carriage and horses are let with a driver." 8. Burns v. Southern Pac. Co. (Cal. App.), 185 Pac. 875; Sargent Paint Co. V. Petrovitsky, (Ind. App.), 124 N. K. 881; Myers v. Tri-State Auto Co., 121 Minn. 68, 140 N. W. 184; Diamond V. Sternberg, etc., Co.. 87 Misc. (N. Y.) 305. 149 N. Y. Suppl. 1000. See also Carr v. Burke, 183 N. Y. App. Div. 361, 169 N. Y. Suppl. 981. Private Hire of' Automobiles. 207 the benefit of the guests as well as the hirer, and owes the same duty to each, without regard to the fact that he does not know the names or number of the guests.® Sec. 178. Liability for injury from operation of machine — liability for acts of driver furnished by hirer. While the owner of the machine is genorally liable for the negligence of the driver in his general employ,^" the situation is entirely different when the owner furnishes only the ma- chine, and the chauffeur is furnished by the hirer. When one rents an automobile to another and the latter furnishes the driver thereof, such driver is not deemed to be the servant of the owner of the machine but of the hirer, and the hirer alone is liable for his negligence.^^ In such a case, it is pos- sible for the owner to ride as a guest of the hirer, and never- theless escape liability.^^ Sec. 179. Liability for injury from operation of machine — injury to passenger. Where a dealer in automobiles and owner of a garage lets a car for hire and furnishes a driver, and the hirer exercises no control or supervision over the driver, except to direct him where to go, and what route to take and to caution him against improper driving, the owner is responsible for the negligence of the driver, and the hirer may recover from the owner in damages for an injury caused by the driver's negli- gence.^2 In such a case the negligence of the driver is im- puted to the owner and not to the hirer of the vehicle." But 9. Greenberg & Bond Co, v. Yar- Meyers v. Tri-State Auto Co., 131 Minn, borough (Ga. App.), 106 S. E. 624; 68, 140 N. W. 184; Cates v. Hall, 171 Dunne v. Boland, 199 HI. App. 308. N. C. 360, 88 S. E. 534. See also, 10. Section 628. Buckingham v. Eagle Warehouse & 11. Pease v. Gardner, 113 Me. 264, Storage Co., 189 N. Y. App. Div. 760. 93 Atl. 550; Hornstein v. Southern 179 N. Y. Suppl. 218. Boulevard R. Co., 79 Misc. (N. Y.) 34, Burden of proof.— In an action by 138 N. Y. Suppl. 1080. the hirer against the owner for per- 12. Pease v. Montgomery, 111 Me. sonal injuries, the burden is upon the 582, 88 Atl. 973. See also sections plaintiff to show the negligence of the 642-644. defendant. Wallace v. Keystone Auto- 13. Johnson v. Coey, 237 111. 88, 86 mobile Co., 230 Pa. St. 110, 86 Atl. 699. N. E. 678, 21 L. R. A. (N. S.) 81; 14. Broussard v. Louisiana Weetem 208 The Law of Automobiles. if the carriage of passengers by a chauffeur is an individual enterprise of the driver without the knowledge of the owner, the latter is not liable.^^ But, although the negligence of the driver is not to be imputed to the passenger in such cases, nevertheless the duty is on him of using reasonable care for his own safety; and, if he fails in this respect, he cannot re- cover of the owner for his injuries.^*' But, though riding be- side the driver, he is not guilty of contributory negligence because he fails to warn, advise or direct the driver in cases of emergency or because he fails to control the acts of the driver in passing other cars." The owner impliedly warrants that the machine is in proper condition for the purpose con- templated, and he must exercise reasonable care to see that the machine is in proper repair.^ Sec. 180. Injury to machine — care to be exercised by hirer. A party who hires an automobile from another is bound to take only ordinary care of the machine, and he is not respon- sible for damage inflicted to the automobile, if ordinary pru- dence has been exercised while the machine was in his custody as a bailee.^^ The degree of care, of course, which the hirer of an automobile should exercise depends upon all the facts and circumstances of the case, but still it is only ordinary care as the law defines this term. The hirer is bound to render such care in the case as the owner has a right to expect that a man of ordinary capacity and caution would take of the automobile, if it were his own under the same circumstances.^** As a general rule, if the machine is injured or destroyed through the alleged negligence of the hirer, it is a question for the jury to determine whether negligence has been estab- lished.^^ E. Co., 140 La. 517, 73 So. 606; Meyers 17. Wilson v. Puget Sound Elee. Ry, V. Tri-State Auto Co., 121 Minn. 68, 52 Wash. 522, 101 Pac. 50. 140 N. W. 184; Bancroft v. Cote, 90 18. Collette v. Page (R. I.) 114 Atl. Vt. 358, 98 Atl. 915. See section 679, 136. et seq., as to imputation of driver's 19. Parsons on Contracts, vol. II negligence to passenger. (9th Ed.), 134, 135. 15. Nicholson v. Houston Elee. Co. 20 Parsons on Contracts, vol. II (Tex. Civ. App.), 220 S. W. 632. (9th Ed.), 134, 135. 16. Sections 688-695. 21. Brown v. Freeman, 84 N. J. L. 360. 86 Atl. 384. Private Hire of Automobiles. 201) Sec. 181. Injury to machine — loss of machine. If an automobile is lost through theft, or is injured as a result of violence, the hirer is only answerable when im- prudence or negligence caused or facilitated the injurious act.^^ However, where a hired automobile is lost or injured, the hirer is bound to account for such loss or injury. When this is done, the proof of negligence or want of due care is thrown upon the bailor, and the hirer is not bound to prove affirmatively that he used reasonable care.^ If the employee of the hirer uses the machine for an unauthorized purpose, and while it is so used, it is stolen through the negligence of such employee, the hirer may be liable.^* Sec. 182. Injury to machine — conversion of machine by hirer. If the hirer of an autpmobile should sell it without au- thority to a third party, the owmer or bailor may institute an action of trover against even a bona fide purchaser, one who purchases the machine innocently believing that the hirer had the title and power to sell.^^ Sec. 183. Injury to machine — deviation from agreed route. There is an implied obligation on the part of the hirer of a motor vehicle to use the machine only for the purpose and in the manner for which it was hired. If the automobile is used in a different way, or for a longer time, the hirer may be responsible for a loss then accruing, although by inevitable casualty.^ Sec. 184. Injury to machine — right of action by hirer for injury. Upon the assumption that the hirer of an automobile is under the obligation to return it to the hirer in as good condi- 22. Parsons on Contracts, vol. II (N. J.), 110 Atl. 690. (9th Ed.), 138. 25. Parsons on Contracts, vol. II 23. Parsons on Contracts, vol. II (9th Ed.), 138. (9th Ed.), 138. 26. Parsons on Contracts, vol. 11 24. Donaldson v. Ludlow & Squier, (9th Ed.), 141, 142. 14 iilO The Law of Automobiles. tion as at the commencement of the bailment, reasonable wear and tear excepted, it has been decided that in case of an in- jury to an automobile by the negligence of a third party, the hirer may recover therefor.^ If the owner brings the action against the third party, the negligence of the hirer is not im- puted to such owner.^ Sec. 185. Duties and liabilities of parties — possession of machine. The owner of the automobile, or the party letting it out, is obliged to deliver the automobile hired in a condition to be used as contemplated by the parties; and the owner may not. interfere with the hirer's use of the automobile while the hirer's interest continues. Even if the hirer abuses the auto- mobile, although the owner may then, as it is said, repossess himself of his property if he can d() so peaceably, he may not do so forcibly, but must bring an action. If such misuse of the automobile terminates the original contract of bailment the owner may demand the automobile, and, on refusal, bring trover ; or, in some cases, he may bring the action of trover, without demand.^^ By the contract of hire, the hirer of the automobile acquires a qualified property in it which he may maintain against all persons except the owner, and against him as far as the terms and conditions of the contract, ex- press or implied, may warrant. During the time for which the hirer is entitled to the use of the automobile, the owner is not only bound not to disturb him in that use, but if the hirer returns it to the owner for a temporary purpose, he is bound to return it to the hirer.** Sec. 186. Duties and liabilities of parties — duty to carry to destination. Where a person enters into a contract of hiring with the owner of an automobile by which the latter undertakes to 27. Manion v. Loomis Sanitarium, Suppl. 313. 162 N. Y. App. Div. 421, 147 N. Y. 29. Parsons on Contracts, vol. II Suppl. 761. (9th Ed.), 139, 140. 28. Fischer v. International By. Co., 30. Parsons on Contracts, vol. II 112 Misc. (N. Y.) 212, 182 N. Y. (9th Ed.), 142. Private IIuie of Automobii.es. 211 convey the former to a certain destination, and, while on the way, in the perrormaiice of such agreement, the automobile breaks down, if the mechanism cannot be properly adjusted at the time and the ownei* is able to furnish another machine so as to complete his contract of carriage, it is his duty to do so.^^ Sec. 187. Duties and liabilities of parties — termination of hiring. The contract for the hire of an automobile may be termi- nated by the expiration of the time for which the vehicle was hired, or by the act of either party within a reasonable time, if no time is fixed by the contract, as by the agreement of both parties at any time; or by operation of law if, for instance, the hirer becomes the owner of the automobile, or by the de- struction of the automobile. If it is destroyed without the fault of either party, before any use of it by the hirer, he has nothing to pay ; if after some use, it may be doubted how far the aversion of the law of apportionment would prevent the owner from recovering pro tanto; probably, however, where the nature of the case admitted a distinct and just apportion- ment, it would be applied. Either party being in fault would, of course, be amenable to the other. The contract might wisely provide for such a contingency as the destruction of the auto- mobile in such manner.^ Sec. 188. Duties and liabilities of parties — surrender of machine. The hirer of an automobile must surrender the machine at the appointed time, and if no time is specified in the contract, then whenever called upon after a reasonable time. What constitutes a reasonable time is to be determined from all of the facts and circumstances of each particular case.^ 31. Taxicab Co. v. Grant, 3 Ala. (9th Ed.), 143. App. 393, 57 8o. 141. 33. Parsons on Contracts, vol. II 32. Parsons on Contracts, vol. II (9th Ed.), 142. 212 The Law of Automobiles. Sec. 189. Duties and liabilities of parties — compensation for hire. The owner of a motor vehicle is, of course, entitled to com- pensation for the use of the machine, "unless it is intended that the use shall he gratuitous.^'' If a definite sum is not stated in the contract between the parties, there arises an implied undertaking that the hirer shall pay a reasonable amount.^-^ One who uses another's automobile without consent or knowl- edge of the owner, may be liable to pay a reasonable hire therefor.^*^ In case the hirer is a corporation, there may arise the question whether the agent of the company making the contract, has authority to bind the company.^^ Where a ma- 34. O'Brien v. L. E. White Lumber Co. (Cal. App.), 185 Pac. 514. 35. Kentucky Glycerine Co. v. Clouse, 187 Ky. 484, 219 S. W. 788. And see Parsons on Contracts, vol. II (9th Ed.), 143. 36. Bush V. Fourcher, 3 Ga. App. 43, 59 S. E. 459. 37. Lake County Agr. Soc. v. Ver- plank (Ind. App.), 124 N. E. 494; Mer- rill V. Caro Ins. Co., 70 Wash. 482, 127 Pac. 122. 38. Jones v. Belle Isle, 13 Ga.. App. 437. 79 S. E. 357, wherein it was said: "The court will not enforce a contract made on Sunday in furtherance of one 's ordinary business. . . . Generally if a contract founded upon an illegal con- sideration is executed, it will be left to stand. If it be executory, neither party can enforce it. . . . As letting automobiles for pleasure rides was a work neither of charity nor of neces- sity, the contract as to the automobile hired on Sunday was void ah initio. . . . If one's ordinary calling is law- ful, a contract made in furtherance thereof is neither illegal nor immoral: If made on Sunday, it is unenforceable sole'y because the State, in the exercise of its police power has prohibited the citizen from pursuing h's usual business or calling on the Sabbath day. A con- tract founded upon a consideration which is neither illegal nor immoral may be subsequently ratified, even though it is unenforceable ai initio be- cause made on a day on which the law prohibits it from being executed. Hence, if a contract of sale be made on Sunday and the property delivered to the purchaser, his retention of it after the expiration of Sunday would amount to a ratification and render him liable for the purchase price. And where a contract is made on Sunday, and the parties proceed to carry it out on a subsequent day, both will be bound. . . . The owner of the auto- mobile knew it was illegal to let his machine on Sunday. With this knowl- edge he took the risk of voluntary pay- ment by the defendant. The contract was wholly executed on Sunday; noth- ing remained to be done but to pay for the use of the machine. The new promise to pay was founded upon no new consideration, and there was no such obligation to pay as would sup- port the new promise. The hirer of the automobile was engaged in an ille- gal act, one which is denounced by our law as a crime. The original promise to pay was made in furtherance of a crime. Therefore it could not furnish a consideration for a new promise made Pkivate Hirk of Automoblles. 213 chine is hired for "joy riding" on Sunday, it has been held that the contract is illegal and the hirer cannot recover for the use of the automobile.^ on a secular day. Catlett v. M. E. Church, 62 Ind, 365, 30 Am. Rep. 197. There is no reason why the courts should be solicitous to aid one who violates the Sunday law to reap the fruits from his illegal act. It is the declared policy of this State that no one shall pursue the work of his ordi- nary calling on Sunday. To allow the plaintiff to recover in this case would encourage the violation of the Sunday law. The purpose of the law is to dis- courage and, as far as possible, prohibit work on the Sabbath day save that which is done of necessity or for charity. ' ' 214. The Law of Alttomobilrs. CHAPTER XI. GARAGES AND GARAGE KEEPERS. Section 190. Scope of chapter. 191. Garage defined. 192. btatus of garage keeper. . - 193. Garage as a nuisance. 194. Restrictive covenant forbidding garage. 195. Regulatory power over garages — in general. 196. Regulatory power over garages — licensing. 197. Regulatory power over garages — location. 198. Regulatory power over garages— manner of construction. 199. Regulatory power over garages — storage of gasoline. 200. Regulatory power over garages — keeping register of repairs. 201. Rights of garage keeper. 202. Liability of garage keeper — in general. 203. Liability of garage keeper — gratuitous bailee. 204. Liability of garage keeper — injury by fire. 205. Liability of garage keeper — property stolen from garage. 206. Liability of garage keeper — use of macliino without owner's con- sent. 207. Liability of garage keeper — damages to machine while driven by bailee. 208. Liability of garage keeper — conversion of customer's automobile. 209. Liability of garage keeper — delay in making repairs. 210. Liability of garage keeper — improper performance of work on ma- chine. 211. Liability of garage, keeper — sale of inferior supplies. 212. Liability of garage keeper — burden of proof. 213. Liability of garage keeper — acts of driver injuring third person. 214. Liability of garage keeper — acts of servant tomng disabled ma- chine. 215. Liability of garage keeper — defective premises. Sec. 190. Scope of chapter. This chapter is designed to include certain matters relat- ing peculiarly to garages and garage keepers^ such as the regulations which the State or municipal divisions may make with reference to the construction and management of garages, and the powers and liabilities of garage keepers. In another chapter are treated the questions which arise out of the car- riage of passengers for hire hy garage keepers.^ And refer- 1. Chapters IX and X. Garages and Garage Keepers. 215 ence is also to be made to another part of this work for a dis- cussion of the liens of garage keepers for storage, repairs and supplies.^ Sec. 191. Garage defined. The garage has been said to be the modern substitute for the ancient livery stable.^ The term was appropriated from the French language, there meaning "keeping under cover," or a ** place for keeping." As used in this country the term means a place where a motor vehicle is housed and cared for.* The term '* public garage, " as used in a tax law, has been con- strued as including an automobile repair shop.^ A building constructed by a tenant and used for a garage and repair shop, though connected with an existing building by a shed, is a trade fixture which may be removed by the tenant after the expiration of the tenancy.*' Sec. 192. Status of garage keeper. A garageman who receives the motor vehicle of another for the purpose of repairing or taking care of it, the owner to pay a compensation for such service, is a bailee for hire.'^ The relation between the parties is that of bailor and bailee, and 2. Sections 875-881. another building, as a barn or corncrib 3. Smith V. O'Brien, 46 Misc. R. (N. constructed for the purpose, or having Y.) 325, 94 N. Y. Suppl. 673, affirmed been erected, is set apart for the hous- 103 App. Div. 596, 92 N. Y. Suppl. ing of the automobile, it is none the J 146. less a 'garage.' within the meaning of 4. White V. Home Mut. Ins. Assoc. that word in either language. In (Iowa), 179 N. W. 315, wherein it was French the word has reference to the said: "The word 'garage' was re- place of keeping wagons and other vehi- cently appropriated from the French cles of transportation, as well as auto- language, there meaning keeping under mobiles; but in English it appears to cover, or a place for keeping, and, as have been restricted to motor vehicles." employed in English, is accurately de- 5. Laurence v. Middleton. 103 Miss, fined by Webster's dictionary, substan- 173, 60 So. 130. tially like that of the Century diction- 6. Ray v. Young, 160 Iowa, 613, 142 ary, as 'a place where a motor vehicle N. W. 393, Ann. Cas. 1915 D. 258. is housed and cared for.* To be such, 7. Woods v. Bowman, 200 III. App. the place need not bo apart from other -. 612; Warren v. Finn, 84 N. J. L. 206, buildings, though that may \ye the more 86 Atl. 530 ; Perry v. Fox, 93 Misc. common and appropriate way. If the (N. Y.) 89, 156 N. Y. Suppl. 369. 'place' be in .a 'lean-to' attached to jfc, Garage keeper as a " wheel right. "-— 216 The Law of Automobiles. their rights and liabilities are to be determined according to such relation.^ The relation of landlord and tenant does not exist.^ The status of bailee enables the garageman to main- tain an action of replevin to recover the property from the possession of any one except the bailor.^" But, nevertheless, such custody does not constitute ownership for the purpose of the allegation of ownership in a prosecution for theft of a part of the machine." So long as the relation between the owner and the garage keeper is that of bailor and bailee, the owner is not ordinarily responsible for the negligence of the garageman or his servants in the care or operation of the vehicle.^2 Qne who undertakes to repair an automobile for another is regarded as an independent contractor where there is no right on the part of the owner to control the work.^^ Sec. 193. Garage as a nuisance. A public garage is not a nuisance per se}^ And it has been said that the business of a garage keeper ''appears perfectly lawful and legitimate. " ^^ Even the storage of gasoline in suitable tanks set well down in the earth is not a nuisance per se}^ But, although the business of the garage keeper is It has been held that a garage man Ala. 635, 75 So. 25; People ex rel. who makes a business of repairing Busehing v. Ericson, 263 111. 368, 105 motor vehicles, is a " wheelright. " N. E. 315; Wolfschlager v. Applebaum Shelton v. Little Rock Auto Co., 103 (Mich.), 182 N. W. 47; Diocese of Ark. 142, 146 S. W. 129. Trenton v. Toman, 74 N. J. Eq. 702, 70 8. Woods V. Bowman, 200 111. App. Atl. 606; Ronan v. Barr, 82 N. J. Eq. 612. 583, 89 Atl. 282; Stein v. Lyon, 91 9. White V. Lokey, 7 Boyces (30 N. Y. App. Div. 593, 87 N. Y. Suppl. Del.) 598, 110 Atl. 560. 125; Hanes v. Caroline Cadillac Co., 10. Warren v. Finn, 84 N. J. L. 206, 176 N. Car. 350, 97 S. E. 162; Sher- 86 Atl. 530. man v. Livingston, 128 N. Y. Suppl. 11. Staha V. State, 69 Tex. Crim. 356, 581; Phillips v. Donaldson (Pa.), 112 151 S. W. 543. Atl. 236; Lewis v. Berney (Tex. Civ. 12. Woods V. Bowman, 200 111. App. App.), 230 S. W. 246. 612; Neff v. Brandeis, 91 Neb. 11, 135 15. Stein v. Lyon, 91 N. Y. App. Div. N. W. 232, 39 L. R. A. (N. S.) 933; 593, 87 N. Y. Suppl. 125. Perry v. Fox, 93 Misc. (N. Y.) 89, 156 16. See Hanes v. Caroline Cadillac N. Y. Suppl. 369. And see also section Co., 176 N. Car, 350, 97 S. E. 162, g46_ Painting and upholstering automo- 13. Woodcock V. Sartle, 84 Misc. R. biles is a legitimate business.— Wolf - 488, 146 N. Y. Suppl. 540. schlager v. Applebaum (Mich.), 182 N. 14. Radney v. Town of Ashland, 199 W. 47. Garages axd Garage Keepers. 217 not necessarily a nuisance, it maj^ become so when conducted in certain localities, such as a strictly residential section, or when it is conducted in an improper manner.^^ Thus, the operation of a public garage may be enjoined in a purely residential section within a short distance of large churches, a parochial school, and modern houses.^^ But a garage is not necessarily a nuisance because it is a wooden construction, more or less old and dilapidated; or because of the storage of gasoline and inflammable oils, neighboring buildings are exposed to a fire hazard.^^ Sec. 194. Restrictive covenant forbidding garage. Whether a restrictive covenant in a deed will preclude the construction of a public or private garage on certain premises, depends, of course, upon the language of the covenant. As a garage is not a nuisance per se^ it is held that a deed for- bidding the maintenance of a ''nuisance," Avill not bar a 17. People ex rel. Busching v. Eric- son, 263 111. 368, 105 N. E. 315; Wright V. Lyons, 224 Mass. 167, 112 N. E. 876; Diocese of Trenton v. To- man, 74 N. J. Eq. 702, 70 Atl. 606; Prendergast v. Walls, 257 Pa. 547, 101 Atl. 826; Phillips v. Donaldson (Pa.), 112 Atl. 236; Lewis v. Bemey (Tex. Civ. App.), 230 S. W. 246. "These garages occupy with relation to auto- mobiles the same place that stables do with regard to horses, and stables have not been held to be nuisances." Dio- cese of Trenton v. Toman. 74 N. .T. Eq. 702, 70 Atl. 606. Injunction against garage keeper, — The owner of an automobile garage, licensed to store one barrel of gasoline in the building, which is a frame build- ing and adjacent to other frame build- ings, will be enjoined from introducing gasoline into tanks of the automobile xnBidte the building, and restrained from storing automobiles with gasoline in the tanks inside the building. O'liara v. Nelson, 71 N. J. Eq. 161, 63 Atl. 836. Lease of a building for garage held equivalent to an ejection of ips^-oo of adjoining property used for lodging house. Blaustein v. Pincus, 47 Mont. 202, 131 Pac. 1064. A lease providing that premises are to be used only as a store, to handle and sell automobile accessories and as a showroom for new automobiles, but no repairs of any kind will be allowed on the premises, cannot be construed as meaning that the premises demised should be used as a garage. Winograd V. Olson, 207 111. App. 343. 18. Prendergast v. Walls, 257 Pn. 547, 101 Atl, 826. 19. Radney v. Town of Ashland, 190 Ala. 635, 75 So. 25. 20. Section 193. By whota enforced. — The asaijinee or heir of the original grantor in some cases cannot enforce the covenant. Ringgold V. Dcnhardt (Md.), 110 Atl. 321. 218 The Law of Automobiles, garage.^^ Nor is a garage a "stable" within the meaning of a covenant providing that, if a stable should be built on cer- tain premises, it would be on a certain corner of the premises.^ But the maintenance of a public garage may be prescribed by a covenant which forbids anv *' offensive" business. ^^ Coven- 21. Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606; Eonan v. Barr, 82 N. J. Eq. 583, 89 Atl. 282; Goldstein v. Hirsch, 108 Misc. (N. Y.) 294, 178 N. Y. Suppl. 325, affirmed 191 App. Div. 492, 181 N. Y. Suppl. 559. "The second paragraph of the cove- nant prescribes the use of the lots for purposes therein specifically mentioned 'or any other nuisance whatsoever. The erection of a public garage eo nomvnie is not prohibited, but it is in- sisted that to permit one to be erected and operated would create a nuisance. To read this into the clause inhibiting nuisances necessarily requires a finding that a public garage is a nuisance per se. This it surely is not. It is a place for the housing of automobiles. The business is a lawful one and the pre- sumption is that it will bo lawfully carried on. In such circumstances a court of equity will not interfere. If, in the prosecution of the business, a nuisance is created, it may interpose. ' ' Ronan v. Barr, 82 N. J. Eq. 583, 89 Atl. 282. 22. Asbury v. Carroll, 54 Pa. Super. Ct. 97. 23. Hohl V. Modell, 264 Pa. St. 516, 107 Atl. 885; Phillips v. Donaldson (Pa.), 112 Atl. 236. Restriction in a deed construed. — Where the erection of "any tavern, drinking saloon, slaughterhouse, skin- dressing establishment, or any other building for offensive purpose or occu- pation" is forbidden by the terms of a deed it is decided that a public garage is within the meaning of the restric- tion. Hibberd v. Edwards, 235 Pa. 454, 84 Atl. 437. A garage is not a "stable," neither is it a dangerous, noxious, unwholesome or offensive es- tablishment, trade, calling or business offensive to the neighborhood within the meaning of a restrictive covenant which provides that there shall not be erected or carried on or upon the premises any "omnibus, livery or cow stable ... or other dangerous, noxious, unwholesome or offensive es- tablishment, trade, calling or business whatsoever offensive to the neighbor- hood." It is inconceivable that when said covenant was made in 1850 and repeated in subsequent deeds in 1852 and 1853 and referred to in deeds down to 1896, the parties interested had in contemplation a garage. Goldstein v. Hirsch, 108 Misc. (N. Y.) 294, 178 N. Y. Suppl. 325, affirmed 191 App. Div. 492, 181 N. Y. Suppl. 559. Business of garage is offensive. — An owner of land divided it into building lots, and in each deed inserted a re- striction that the property should not be used for any business "offensive to the neighborhood for dwelling houses. ' ' In a suit by one of the grantees to re- strain the erection of an automobile garage, it appeared that the building was designed to accommodate about 125 large automobiles, a part of one story being designed for a repair shop, and it being intended to place in the build- ing a portable forge; that demonstra- tion cars were to be kept, with demon- strators to run them, and that about seventy-five or a hundred customers were expected to store automobiles there, such machines to go in and out on an average of once a day. The Supreme Judicial Court of Massachu- setts held that the maintenance of such a building would constitute a violation Garages and Garage Keepers. 219 ants made since the popularity of automobiles sometimes ex- pressly forbid a "garage." When such is the case, the ques- tion involved is whether a particular structure is a *' gar- age."-* It has been held that it is not a violation of a re- strictive covenant limiting the use of property to residential purposes and prohibiting public or private stables for horses or other animals, or nuisances of any kind, description or na- ture, for an owner to erect a small building connected with his dwelling to be used as a private garage.^^ And, although a restrictive covenant running with the land forbids the grantee from erecting a ''garage," an adjoining landowner, for whose benefit the covenant exists, cannot enjoin the erection of a *Uean-to" against the side of a dwelling for the purpose of protecting an automobile, used only for private purposes, where the restrictive covenant taken as a whole shows merely an intention to prohibit offensive trades or any business which would detract from the residential character of the neighborhood.^^ But a portable sheet metal garage placed of the restriction against carrying on offensive business. See Evans v. Foss, 194 Mass. 513, 80 N. E. 587, 9 L. R. A. (N. S.) 1039, 11 Ann. Caa. 171. 24. A porte-cochere, although the front and rear openings are fitted with doors, and the enclosure is used for the housing of an automobile, may still be considered a porte-cochere. Conrad v. Boogher, 201 Mo. App. 644, 214 S. W. 211. 25. Beckwith v. Firing, 134 N. Y. App. Div. 608, 119 N. Y. Suppl. 444, wherein it was said : "Is either the spirit and intent or the letter of the covenant violated by the erection of a garage such as this one is intended to be? There is no allegation that it is to be a public character. Its dimensions would hardly make that possible. If after its erection an attempt should be made to use it for such a purpose, and to thus carry on the business of stor- ing automobiles for hire, a different question would be presented. We think that this structure is incidental to the reasonable use of property for resi- dential purposes. If one having a fond- ness for flowers should attach to hia residence a small extension for the pur- pose of conservatory or greenhouse, or a lover of music, should attach a simi- lar extension to be used as a private music room, or being a patron of art, should in like manner construct a build- ing to be used as an art gallery, we think it could hardly be claimed that this was a violation of the covenant. However much we may differ upon a question of taste, it seems to us that if one has a fondness for automobiles, and desires to build an addition to his dwelling house for the storing of his own automobiles, it cannot be claimed that ho is destroying the character of the property as residential property, or devoting any portion of it to a use which is not fairly incidental thereto." 26. Sullivan v. Sprung, 170 App. Div. 237, 156 N. Y. Suppl. 332, wherein the court said: "While the courts carry out and enforce such covenants restrict- 220 The Law of Automobiles. on a lot has "been held to be contrary to a covenant providing, "No stable or garage shall be built unless appurtenant to a house on a plot not less than 100 feet in width by 150 feet in depth. "^ And a covenant forbidding the construction of an ''outbuilding" is broad enough to include a garage.^ Sec. 195. Regulatory power over garages — in general. The odors, the noise, and the fire hazard, which are oc- casioned by the construction and management of a garage. ing the enjoyment of land such re- strictions are not to be enlarged or ex- tended by judicial construction. (11 Cyc. 1078.) The present structure, paintdd to conform to the house to which it is attached, is simply an addi- tion to the dwelling. While used to house a motor car it might serve as a storeroom or for other needs of a pri- vate dwelling. . . . It is a familiar principle that separate terms in the enumeration of things and uses prohi- bited or limited by such restrictions are to be taken subject to the general quali- fying words expressive of the scope and purpose of the covenant as a whole. . . .. This entire covenant is directed against offensive trades and further toward quasi-public uses, such as trade or business, which would detract from the private residential character of the occupation. Under the ejusdem generis rule the latter portion of the covenant against buildings or structures 'for any hospital, cemetery, asj'lum, manufac- tory, trade shop, store, hotel, clubhouse, boarding house, stable or garage,' does not apply to this structure attached to defendant's residence, in which is kept her private motor car. * ' And see White v. Home Mut. Ins. Assoc. (Iowa), 179 N. W. 315, holding that an automobile kept in a " lean-to ' ' connected with a bam was kept in a "garago" within the meaning of an insurance application. 27. Seibert v. Ware, 158 N. Y. Suppl. 229, wherein it was said: "Here the garage was a separate, complete and en- tire building, with its own walls and roof, and built so as not to be incorpor- ated in the dwelling. It was a portable building, placed on the defendant's lot and intended for use as a garage, and for no other purpose. . . . The de- fendant's breach of the covenant seems to have been deliberate. She evidently thought or was advised that by adopt- ing the plan of usinng a portable build- ing, instead of one permanently aflSxed to the freehold, she could disregard an agreement which had become irksome. It is none the less an unlawful act, in that she has put in place on the prop- erty a so-called portable building, con- structed elsewhere, instead of causing a building to be erected thereon in ac- cordance with her first design. Porta- bility does not necessarily imply tran- siency, and a violation docs not need to be permanent before equity can in- tervene. The end sought to be ac- complished by the restriction was to prevent the building of any garage upon plots of less than a certain size. The motive may have been to avoid fire hazard or noise from the operation of cars in close proximity to houses on ad- joining lots. Whatever the motive, the covenant is plain, and a temporary vio- lation, whila it lasts, is within its pur- view just as much as a more permanent one. * ' 28. Ringgold v. Denhardt (Md. ;. 110 Atl. 321. GakaGtES and Gai^age Keepers. 221 create a situation wliicli justifies public regulation,^ As was said in one case,^*^ "Conceding, as the parties do, that the busi- ness oi* conducting a public garage does not constitute a nuisance per se, it is a matter of common knowledge that the automobile propelled by the use of gasoline is a large and sometimes noisy machine, which frequently, when in opera- tion, emits an offensive odor. Automobiles go in and out of public garages at all hours of the day and night, producing noises which must necessarily interfere with the comfort and welfare of those in the immediate vicinity. In the starting of these machines and in the testing and repair of their engines a considerable noise is unavoidable. Gasoline and oil are used in places of this kind, and it is necessary to keep a con- siderable quantity of gasoline constantly on hand, which is transferred to the tanks of automobiles propelled by this means. In making this transfer a portion of it necessarily becomes vapor, thus creating a menace both because of the odor of the fmnes and their inflammable character. The power of the Legislature to regulate such a business is in no way dependent upon the question whether it is a nuisance per se. It is of such a character that it becomes a nuisance when conducted in particular localities and under certain con- ditions, and it is clearly within the province of the Legislature, in the exercise of the police power, to authorize the munici- palities of the State to direct the location of public garages." Thus, a city may pass an ordinance forbidding the construc- tion of a garage except on the authorization of the board of aldermen.^^ If one attempts to erect a garage without a proper permit or attempts to construct one in violation of the permit, an injunction may be granted upon the prayer of an adjoining owner.^^ Municipal ordinances for the regulation of garages must be reasonable, but they are presumed to be valid, and it is incumbent on the party complaining to show 29. Ninth St. Improvement Co. v. 31. Storer v. Downey, 215 Maa3. 273, Ocean City, 90 N. J. L., 106, 100 Atl. 102 N. E. 321. 568. 32. Trauernicht v. Richter, 141 Minn. 30. People ex rel. Busching v. Erica- 496, 169 N. W. 701 ; Page v. Brooks son, 263 111. 368, 105 N. E. 315. (N. H.), 104 Atl. 786. 222 The Law or Automobiles. their invalidity .^^ A municipal regulation may be invalid if it discriminates between different garage keepers similarly situated.^* Sec. 196. Regulatory power over garages — licensing. Municipal corporations in some States may require the licensing of garages and impose a license fee of their owners.^^ A license fee of a specified smn for each tank or filling ap- paratus may be imposed.^^ So, too, under certain circum- stances, licenses for the storage of gasoline or inflammable oils may be granted or withheld from garages.^^ A motor club organized as a corporation not for profit, to own, run and maintain a club house and garage to be enjoyed by mem- bers of the club, has been held to be maintaining a garage within the meaning of a city ordinance requiring a garage license.^^ Sec. 197. Regulatory power over garages — location. On account of the offensive noises and odors which arise from the maintenance of a garage, as well as the danger of fire from gasoline and inflammable oils kept on such premises, the location of a public garage is a matter of municipal regu- lation.39 Thus, it is proper to prohibit the maintenance of a public garage within a prescribed distance, which is reason- able, of a church or hospital or school.*" Filling stations may not be excluded from certain streets, if there is no adequate reason for the discrimination.'" It is held that a municipality 33. Dangel v. Williams, 11 Del. Ch. 39. People ex rel. Busching v. Erica- 213, 99 Atl. 84; People ex rel. Busching sob, 263 111. 368, 105 N. E. 315. See V. Ericsson, 263 111. 368, 105 N. E. 315; also State v. Harper, 166 Wis. 303, 165 People V. Oak Park, 266 111. 365, 107 N. W. 281. N. E. 636. Zoning ordinance held invalid. Vil- 34. Kenney v. Village of Dorchester, lage of S. Orange v. Hellen (N. J. Eq.), 101 Neb. 425, 163 N. W. 762. 113 Atl. 697. 35. Louisville Lozier Co. v. City of 40. People ex rel. Busching v. Erics- Louisville, 159 Ky. 178, 166 S. W. 767. son. 263 111. 368, 105 N. E. 315; People 36. Levels v. City of Savannah (Ga.), v. Thompson, 209 111. App. 570; People 107 S. E. 588. ex rel. Sondern v. Walsh, 108 Misc. (N. 37. Section 199. Y.) 193. 178 N. Y. Supp. 192. 38. City of Chicago v. Logan Square 41 Standard Oil Co. v. City of Kear- Motor Club, 189 111. App. 142. ney (Neb.), 184 N. W. 109. Gakages and Garage Keepers. 223 may pass an ordinance forbidding the construction of a gar- age in a residential part of the municipality without the con- sent of the adjoining owners or of a certain proportion of the residents within a given distance.^ An ordinance which makes it unlawful to "build, construct or maintain" a jjublic garage in a residence district \\dthout obtaining frontage con- sents applies to such garages as are already being maintained as well as to those proposed to be constructed in the future, and is therefore not void as discriminating between persons already engaged in the business and those intending to en- gage.'*^ In determining whether consent of the requisite num- ber of nearby owners has been given, the follomng holdings have been made: The ruins left by a building destroyed by fire are not to be counted at all ; a structure divided by frame partitions into three small shops is to be counted as one busi- ness building; a structure having two street numbers may be counted as one residence building; a building at a corner having shops on the street level with their entrances on an- other street, but its main entrance on the street in question, may be counted as a flat building on the street in question: and, where a court extending from the street to a front yard for residents, is used in common for light and air and egress and ingress to the street, two court buildings abutting the street and two buildings at the rear of the court and facing the street are to be counted.** In determining the proportion of buildings used exclusively for residence purposes within a given radius of the site of a proposed public garage, barns and private garages used in connection with residences arc 42. Myers v. Fortunate (Del.), 110 nearby owners as required by a local Atl. 847; United States exrel. Early v. regulation, the owner of premises a few Richards, 35 App. D. C. 540 ; Weeks v. feet away may invoke injunctive relief. Heurich, 40 App. D. C. 46; People ex Weeks v. Heurich, 40 App. D. C. 40. rel. Busching v. Erecsson. 263 111. 368, Notice to co-tenants of adjoining 105 N. E. 315 ; People v. Oak Park, 266 premises of petition for permit to erect 111. 365, 107 N. E. 636; People v. a public garage. See Wright v. Lyons. Stroebel, 156 N. Y. App. Div. 457, 141 224 Mass. 167. ]12 N. E. 867. N. Y. Suppl. 1014. Compare, Dangel v. 43. People v. Oak Park, 266 111. 365. Williams. 11 Del. Ch. 213, 99 Atl. 84. 107 N. E. 636. Injunction by nearby owner. — When 44. "Wise v. Chicago, 18."^ 111. App. one seeks to construct or maintain a 215. garage without the consent of the 224 The Law of Automobiles. not to be counted as buildings not used exclusively for resi- dence purposes.'^ Where a regulation provides that no gar- age shall be built on a street where a certain per cent, of the buildings on both sides of the block are residences, a "block" is construed not to extend between two streets that completely cross the street in question, but to stop at a street running into it though not across it.'"' The power to regulate the loca- tion of public garages within a municipality will not give the right to prohibit them within its territorial bounds.^'' And it has been held that a municipal regulation prohibiting ga- rages and certain other structures without the consent of the real estate owners within 300 feet is invalid.*^ Sec. 198. Regulatory power over garages — manner of con- struction. The manner of construction of garages is a matter within the regulatory power of the State and generally of municipal divisions. Thus, a municipality may pass an ordinance pro- viding that only fire proof buildings shall be used for garages."*^ Sec. 199. Regulatory power over garages — storage of gaso- line. On account of the danger of fire, the storage of gasoline and other inflammable oils and materials in a garage is a 45. People v. Oak Park, 266 111. 365, nance permitting the location and main- 107 N. E. 636. tenance of a garage in residential dis- 46. Wise V. Chicago, 183 111. App. tricts under the conditions prescribed 215. by this ordinance cannot be said to be 47. People ex rel. Busching v. Erics- unreasonable. The requirement that the son, 263 111. 368, 105 N. E. 315, wherein person desiring to construct or maintain it was said: "We do not agree with a garage in any block in which two- counsel for appellant that under this thirds of the buildings on both sides of statute the city is given the power to the street are used exclusively for resi- prohibit the location of a garage any- deuces procure the written consent of a where within its corporate limits. Such majority of the property owners, ac- legislation by the city authorities would cording to frontage, on both sides of the be so unreasonable as to render it in- street, is not unreasonable. ' ' valid. Under this statute the city un- 48. State ex rel. Nehrbass v. Harper, doubtedly has the power, if it should 162 Wis. 589, 156 N. W. 941. see fit, to prohibit the location of a 49. McNamara v. Rings, 80 Misc. (N. garage in a strictly residential district, Y.) 239, 140 N. Y. Suppl. 934. and it necessarily follows that an ordi- Garages and Garage Keepers. 225 proper .subject oi" governmental regulation.'^ Thus a city ordinance providing that no garage permit allowing the stor- age of volatile inflammable oil shall be issued for any build- ing, shed or inclosure which is situated within fifty feet of the nearest wall of a building occupied as a school, has been sus- tained though it applies to property used as a garage for a number of years prior to the enactment of the ordinance.^' So, too, a regulation requiring that all lights on motor vehi- cles except electric lights shall be extinguished before volatile inflammable oil is delivered to fuel tanks, is proper, and places an obligation upon garage keepers to extinguish lights on a machine before delivering gasoline into the tank of a motor vehicle.^- And regulations adopted l)y the Commissioner of the District of Columbia prohibiting the storage or keeping for sale of inflammable oils "without a license and prescribing the conditions under which licenses shall be granted, have been sustained.^ And it has been held a part of such regula- tions recpiring every person storing gasoline in the city of Washington to take out a license, which requires every such application to be referred to the inspectors of buildings and the chief engineer of the fire department for examination of the building described in the application, who shall transmit the application with, the recommendation to the assessor of 50. Gulf Refining Co. v. McKenian, tional rights, because it deprives him 179 N. Car. 314, 102 S. E. 505. of his property without due process of Discrimination.- — ^A munifipal regri- ]aw, and denies to him the equal pro- lation requiring one dealer to remove a tection of the law. It seems to me that tank and gasoline pump at the curb in the regulation is not objectionable on front of his place of business, consti- the score stated by the relator. The ob- tutes an unlawful discrimination where ject sought is the preservation of public his competitor a short distance away is safety and the welfare of the communi- permitted to maintain a similar appar- ty. The enactment is not an arbitrary atus. Kenney v. Village of Dorchester, interference with the rights of the in- 101 Neb. 435, 163 N. W. 762. dividual, but is a fair, reasonable and Licensing of gasoline filling stations. appropriate exercise of the police — Invader Oil & Refining Co. v. City of power." Ft. Wortli (Tex. Civ. App.), 220 S. W. 52. Karg v. Seventy-ninth St. Garage 616. Corp., 102 Misc. (N. Y.) 114, 168 N. Y. 51. Mcintosh v. Johnson, 211 N. Y. Suppl. 164. 265, 105 N. E. 416, wherein it was said: 53. Cahill v. District of Columbia, 23 "He challenges the regulation quoted Wash. L. Rep. 750. as being in violation of liis constitu- 15 226 The Law of Automobiles. the district, who shall, if such officials recommend, issue a license unless otherwise ordered by the commissioners, is not void as an unauthorized delegation of the powers conferred upon the commissioners; it not being a delegation of their authority to commit to the expert agents named, a duty to ascertain and report information important to the exercise of their power to issue the license, the propriety of which issue must depend upon the character and surroundings of the building occupied. The word "recommendation" in the regulation is used in the sense of report.^* An information in the police court against the proprietor of an automobile stor- age and repair house, charging him with storage and keeping gasoline for sale without a license, is not supported by evi- dence which shows that the defendant had a license to conduct such a business but had been refused a special license for the storage and sale of gasoline on the premises ; that he did not have a permit to store gasoline in an underground tank half a block from his establishment; that from time to time each day as needed he procured gasoline from such tank for the supply of automobiles in his establishment, which remained therein from ten minutes to an hour awaiting the arrival of their owners, who had ordered them made ready for use ; there being nothing in such evidence from which the sale of gasoline could be inferred and nothing to show that it was stored upon the premises within the meaning of the regulation.^^ Sec. 200. Regulatory powef over gara;g-es — keeping register of repairs. A statute requiring that ' ' every repair shop of whatsoever kind, or garage, within this State, engaged in the repairing, rebuilding or repainting of automobiles of every description; or any repair shop, within the State, engaged in electrical work in connection with automobiles of every description, shall keep a well bound book in which they shall register, in an intelligent manner, each and every material repair or change in or on any automobile or automobiles of every de- 54. District of Columbia v. Weston, 55. Weston v. District of Columbia, 23 App. D. C. 363, distinguishing 23 App. D. C. 367. United States v. Eoss, 5 App. D. C. 241. Garages and Garage Keepers. '2-27 scription," applies to the "garage" or ''repair shop," l)ut the persons engaged in operating thom aro not amenable to prosecution.^ Sec. 201. Rights of garage keeper. A garage keeper is generally allowed a lien on a motor vehicle for the storage thereof and for repairs made to it.^' But, even if his lien is ineffective for some reason, he is en- titled to recover of the owner the agreed price for storage or for supplies and repairs. Or, in the absence of agreed price for repairs, the garage keeper is entitled to recover of the owner the reasonable value of the services and materials fur- nished;^^ even though the value of the repairs exceeds the 56. Fowler v. State. 81 Tex. Cr. 574. 196 S. W. 951, wherein the court said: "Following these rules, taking the language employed and its meaning, it will be readily seen and observed that by no sort of ordinary language such as is commonly understood can a garage be a person, nor is the individual citi- zen of Texas to be regarded by the language of this statute as a repair shop or electrical works. He may be the manager or owner, luit he is not the shop — he is not the garage. It will be observed further the legislature does not undertake, which perhaps they might have done had they desired, to define a garage with such meaning as would do violence to the ordinary language and understood words. It cannot be held with any degree of accuracy that the word 'garage' is synonymous witli 'person' or a 'citizen.' Somctimo? where ambiguous language is used by the legislature, looking to the whole act, it may be held that the language con- veys or includes things not specifically designated, but this is a stretch of the rule or construction unless the legisla- ture has specially so defined it. Eecog- niziug the fact, however, that perhaps a garage and an individual are ditferont things, or that a repair shop is not a liu- maii lioing, they did not undertake to make a garage, repair shop, and electri- lal works synonymous with the term 'citizen' or a 'person.' This law would not justify, from this viewpoint, the complaint and information. We have a law also to the effect, that before a man can be punished in Texas there must be an offense defined by the legis- lature, and it must affect the individual and include him within its terms. No one looking at this statute would under- take to believe that by the plain im- port of the language in which it is written a garage would be an individual or a citizen." 57. Sections 875-8S1. 58. Helber v. Schaible. 183 Mich. 379. 150 X. W. 145. See also, Macin tosli V. Chicago Elec. Motor Car Co. (Cal.), 186 Pac. 364. Time cards showing tlie number of luiurs of labor devoted to tiie repair of an automobile may be shown to witness to refresh liis recollection on the sub- ject. Xew York Motor Car Co. v. Greenfield. 145 N. Y. Suppl. 33, whercir; it was paid: "In endeavoring to show the luinibcr iif hours of labor devoted to tiie repair of the automobile and the materials furnished thereon, plaintiff called its former foreman who had been 228 The Law of Automobiles. orig-inal cost of the machine.^^ The circumstances may how- ever, be such that an implied contract to pay for repairs will not he made/'° When the machine is brought to the garage by a chauffeur, the garage keeper should assure himself of the authority of the chauffeur to order repairs, especially Avhere they are of a permanent nature.^^ If the garageman undertakes to make repairs so as to put the machine in good in charge of this work, lie testified in substance that he could not remember the details without having his memory refreshed. A large number of daily time cards were then shown to him which he recollected that he had made out. These cards, which were signed by the witness, showed the materials fur- nished and the number of hours of labor which had been put into this repair work. The witness testified repeatedly on his direct and cross-examination that he personally knew what materials had been furnished and what labor done, and that he had constantly superin- tended the work or was with the work- men when they did it. He also said that before making the entries he would each evening ask each workman the number of hours which he had devoted to the work. Basing his contention upon this last statement alone, which was evidently a statement by the wit- ness of an additional precaution which he took to verify his knowledge, the re- spondent claims that the entries on the cards were founded on hearsay, and that the cards, therefore, were not rendered admissible. To this view we cannot assent without doing violence to the letter and spirit of the witness' testimony, which showed ample detailed knowledge of both the hours of labor applied and of the materials fur- nished. ' ' Evidence in action for repairs. See Randlo v. Borden (Tex. Civ. App.), UU S. W. 1063. 59. Hoi ton V. Phillips (Mass.), 131 N. E. 324. 60. llelbor v. Schaible, 183 Mich. 379, 1.-)0 N. W. 145. 61. Gage v. Callanan, 57 Misc. (N. Y.) 479, 109 N. Y. Suppl. 844, reversed on other grounds, 128 N. Y. App. Div. 752, 113 N. Y. Suppl. 227. In the lower court, it was said: ''Evidently the chauffeur had no implied or apparent authority to order permanent repairs, or any repairs other than such as were necessary to enable him to proceed upon hi." journey. This was evident to the plaintiff himself, for he placed no re- liance upon the word of the chauffeur, writing the owner himself for instruc- tions. The owner ignored his letters. Clearly the plaintiff was in no way de- ceived as to the chauffeur's authority. Clearly he knew that he had no au- thority to order the repairs in question. Thn case, therefore, is precise, as if the chauffeur had not given the orders in question, merely leaving the car in plaintiff's shop for safe keeping. If the plaintiff had then suggested repairs to the defendant, and received no response to his suggestion, he could not then have made repairs except at his own cost and risk. So in this case. The plaintiff is, therefore, not entitled to recover his repair bill. It is otherwise as to his bill for storage. The chauffeur had the right to place the broken down car in the plaintiff's custody for safe keeping. Thp defendant was informed that he had done so. He did not interfere with the plaintiff's custody of the car, but left it with him for a long period of time. He certainly is liable for the keep of the car." Garages and Garage Keepers. 229 running condition, though he is not bound to put the machine in perfect mechanical condition, he must at least substantially perform his part of the contract before he can recover from the owner for his services.^^ Under a provision of a Penal Code making it a misdemeanor for one selling 62. A decision bj' the municipal court of New York city is of interest in this connection and the following opinion is given: Lauer, J. — This action is hrought to recover the sum of $267.12, representing three items, first, the item of .$160, the agreed price of certain repairs to de- fendant's electric automobile; secondly, the price of $78.12, the cost, as per agreement of the parties, of placing in the defendant's automobile a new arma- ture; and thirdly, the item of $29, rep- resenting certain work, labor and ser- vices performed by the plaintiff upon the same automobile at the defendant's request. I find great difficulty in reaching a decision in this case, realizing that if I decide the issues in favor of the de- fendant the plaintiff must suffer a con- siderable loss, in view of the fact that it has expended time and money in the repairs which it undertook to make upon this automobile. But, on the other hand, if I decide in plaintiff's favor the defendant would be put to great ex- pense with comparatively little, if any, gain by reason of the work which the plaintiff undertook. I think it may fairly be said that it was the understanding between the parties that by reason of the repairs which the plaintiff undertook to do the automobile of the defendant was to be put in first class running condition, or at least in good running condition. As I understand it, this does not neces sarily mean that it should be put in per- fect mechanical condition. The ques- tion, is, however, can it fairly be said that this automobile was by reason of the it-pftirs whifli tho plaintiff made put ill running condition? Admittedly, while the automobile was in the posses- sion of the plaintiff, the onh- tost of its runniiic: finalities was made about the garage tioor. Besides this the auto- mobile was operated only from the garag*^ to tli(> pier in Xcw York and from the pier to the garage in Hunt- ington, a distance of but a few miles, over good roads, and after that the car could not be and was not, operated satis- factorily. It is undisputed that when the attempt was made to recharge the batteries, which had in part been ex- hausted by the trip to Huntington, it was found that there was an interrupted circuit in the shape of the breaking of certain metal straps connecting the cells of the batteries. While this in itself may not have been a matter of very great importance, and a repair which could be made, it indicates to my mind that the work was not done in that workmanlike manner which the defend- ant had a right to expect. I take it that a car is not put in first class or in good running condition merely because it happens to run a few miles. There must be at least some reasonable period of time when, with fair and reasonable usage, under ordinary conditions, the car should continue to be capable of operation. In this instance such was not the case. I do not mean to decide that the party undertaking repairs of an automobile guarantees the duration of those repairs, but where, as here, without any hard usage, and with only a few miles of operation, the car is found unfit for further operation, I do not think it can be said that the 230 The Law of Automobiles. goods to an employee or servant acting for another or who renders service or labor to give a commission, discomit or bonus to such employee, where a plaintiif sued for supplies and work in repairing defendant's automobile and the giving to the chauffeur of a discount on such materials and work was proved, it was held that the contract was void and that the plaintiff could not recover.^ Sec. 202. Liability of garage keeper — in general. A garage keeper storing the car of another for compensa- tion is classed as a bailee for hire,"^ and as such, he is bound to furnish reasonably safe accoimnodations and to exercise reasonable care and prudence to keep the machine in a safe manner.^^ If guilty of negligence resulting in loss or injury to the machine, he may be charged with the damage.^*^ The plaintiff has reasonably complied with its contract to put the car in first class or even in good running condition. So far, therefore, as the item of $160, the contract work, is concerned, I have con- cluded that the plaintiff must fail in its recovery. In regard to the items representing the labor of the plaintiff's employees in attempting to make the re- pairs in Huntington I do not think tho plaintiff is entitled to recover, for tliey were mere attempts to remedy the de- fective condition of the car. So far as the price of the armature is concerned I believe that it is but fair to permit the plaintiff to recover for the cost thereof, as this armature was purchased by the plaintiff for the defendant, at the defendant's request, and was put into the defendant's car, and the de- fendant iindoubtedly received the bene- fit thereof. If follows from these expressions of my opinion that judgment must be for ' the plaintiff in the sum of $78.12. See New York Law Journal, Dec. 4, 1908. 63. General Fire Repair Co. v. Price. 115 N. T. Suppl. 171. 64. Section 192. 65. Morgan Millwork Co. v. Dover Garage Co. 7 Boyce's (30 Del.) 383, 108 Atl. 62; Stevens v. Stewart-Warner Speedometer Corp., 223 Mass. 44, 111 N. E. 771; Hayes v. Maykel Automobile Co., 234 Mass. 198, 125 N. E. 165. Temperature. — Garageman may be liable if the temperature of the garage is permitted to fall so that the water in the cooling system freezes and bursts the water jacket or other parts. Smith V. Economical Garage, Inc., 107 Misc. 430, 176 N. Y. Supp. 479; Simms v. Sullivan (Oreg.), 198 Pac. 240. 66. Illinois. — Ford Motor Co. v. Os- burn, 140 111. App. 633. Kansas. — Roberts v. Kinley, 80 Kans. 885, 132 Pac. 1180. 45 L. R. A. (N. S.) 938. Massachusetts.— Stevens v. Stewart- Warner Speedometer Corp., 223 Mass. 44, 111 N. E. 771. Michigan. — Smith v. Bailey, 195 :\rich. 105, 161 N". W. 822. New York. — Allen v. Fulton Motor Co., 71 Misc. 190, 128 N. Y. Suppl. 419. North Carolvna. — Beck v. Wilkins- Ricks Co., 179 N. C. 231, 102 S. E. 313. Garages and Garage Keepers. 231 liability of a garage keeper for hire is not affected by reason of the knowledge of the owner as to the place where the prop- erty is kept." Its acceptance b\- the garageman imposes on him the duty of exercising due care for its safety and pro- tection.*"'^ In the absence of statute affecting his lial)ility, he is not an insurer of the safety of the machine.'^'' Nor is he liable for deterioration in value owing to the inroads of time.'"' Upon the expiration of the bailment, the bailee must return the machine to the bailor,''^ though, if the machine has been stolen, he may return it to the true owner.'^^ Sec. 203. Liability of garage keeper — gratuitous bailee. One who cares for the vehicle of another without compen- sation, may be classed as a ''gratuitous" bailee.''^ A gratui- tous bailee is sometimes said to be obligated to the bailor only for an exercise of slight care, and is liable only for gross neglect or bad faith.*^* Thus, if a garage keeper permits the owner of a motorcycle to leave the machine in the garage over night without compensation, the garage keeper is a gratuitous bailee and liable only for gross negligence."^ Oregon. — Simms v. Sullivan. 198 Pac. 240. West Virginia. — McLain v. West Virginia Automobile Co., 72 W. Va 728, 79 S. E. 731. Washington. — Tacoma Auto Livery Co. V. Union Motor Car Co., 87 Wash 102, 151 Pac. 243. Negligent operation of elevator car rying car from one floor to another Einhorn v. West 67th St. Garage, 191 N. y. App. Div. 1, 177 N. Y. Suppl 887. 67. Stevens v. Stewart- Warner Speed ometer Corp., 223 Mass. 44, 111 N. E 771; Simms v. Sullivan (Oreg.), 198 Pac. 240. 68. Stevens v. Stewart- Warner Speed- ometer Corp., 223 Mass. 44, 111 N. E. 771. 69. Renfroe v. Fouche (Ga. App.), 106 S. E. 303; Ford Motor Co. v. Os- burn, 140 111. App. 633; Roberts v. KJnley, 80 Kans. 885. 132 Pac. 1180, 45 L. R. A. (X. S.) 938; Allen v. Fulton Motor Co., 71 Misc. (N. Y.) 190, 128 X. Y. Suppl. 419; Beck v. Wilkins-Ricks Co. (N. Car.), 102 S. E. 313. 70. Wimpfheimer v. Demarent & Co., 78 Misc. (N. Y.) 171, 137 N. Y. Suppl. 908. 71. Morgan Millwork Co. v. Dover Garage Co., 7 Boycc's (30 Del.) 383, 108 Atl. 62; Drew v. King, 76 X. H. 184, 80, Atl. 642. 72. Hancock v. Anchors (Ga. App.), 105 S. E. 631. 73. Glende v. Spraner, 198 111. App. 584. 74. Thomas v. Hackney, 192 Ala. 27, 68 So. 296; Renfroe v. Fouche (Ga. App.). 106 S. E. 303; Glende v. Spraner, 198 HI. App. 584. 75. Glende v. Spraner, 198 111. App. 584. 232 The Law of Automobiles. Sec. 204. Liability of garage keeper — injury by fire. In the absence of special statute on the subject or special contract between the parties, a garageman is bound to exer- cise reasonable care, but does not insure a vehicle in his cus- tody against damage from fire in the garage. He is liable for the injury, only when his negligence has contributed thereto.''^ If an employee at a service station is negligent in filling the tank of a car with gasoline, and as a result the gasoline is ignited and the car is damaged, a recovery may be had.'" The tender to the garageman of the storage charges is not a pre- requisite to the suit.'^^ Sec. 205. Liability of garage keeper — property stolen from garage. The owner of a garage is bound to exercise reasonable care to protect property stored in his place of business against loss from theft.'^ Thus, the garageman may be liable if he as- sumes the custody of an automobile and thereafter permits it to remain in an alley without using any precautions to pro- tect it from being stolen.^'' But he is not an insurer and does not, in the absence of peculiar statutory provisions or special circumstances, guarantee the OA\mer that the property will not be stolen.^^ In an action against a garage keeper to recover 76. Parris v. .Taquitli (Colo.), 197 Pac. 750; Ford Motor Co. v. Osburn, 140 111. App. 633 ; Allen v. Fulton Mo- tor Car Co., 71 Misc. (N. Y.) 190, 128 N. Y. Suppl. 419 ; Beck v. Wilkins, 179 N. Car. 231, 102 S. E. 313. See also Hobson V. Silvea (Cal. App.), 19-1 Pac. 525; Eoberts v. Kinley, 80 Kan.s. 885, 132 Pac. 1180, 45 L. R. A. (N. S.) 938. 77. Sanders v. Austin, 180 Cal. 664. 182 Pac. 449. See also, Pinter v. Wenzel (Wis.), 180 N. W. 120. 78. Hobson v. Silvea (Cal. App.), 194 Pac. 525. 79. Steenson v. Flour City Fuel & Transfer Co., 144 Minn. 375. 175 N". W. 681 ; Stevens v. Stewart-Warner Speedometer Corp., 223 Mass. 44, 111 N. E. 771 ; Hoel v. Flour ritr Fuel * Iransfer Co.. 144 Minn. 280, 175 N. W. 300; Rubin v. Forwarders Auto Trucking Corp.. Ill Misc. (N. Y.) 376, 181 N. Y. Suppl. 451; Farrell v. Uni- versal Garage Co., 179 N". C. 389, 102 S E. 617. Where a part is stolen while in the custody of the keeper of the garage ;md he agrees to replace it, its value slumlJ he allowed in adjusting the (■]ai.:i of the garage keeper. Univer- sity n.irage v. Heiser, 142 N. Y. Suppl. 315. 80. Stevens v. Stewart-Warner Sj>oodometor Corp., 223 Mass. 44. Ill X. E. 771. 81. Clondo v. Sprancr, 198 111. App. :><»•. r?urgo v. Englewood. etc., 213 111. .^np. ?,ry7. I Gakages and Garage Keepers. 233 for the loss of plaintiff's motorcycle, where the evidence shows that plaintiff had left the machine in defendant's gar- age over night, that he had advertised it for sale and had so informed defendant, also informing the latter that the ma- chine could not be operated until repairs were made, and had left his name and address with defendant and had requested the latter to permit anyone to inspect the machine whom he might send around, defendant is not liable for the theft of the machine by one who presented a written permit from plaintiff to inspect and, under the pretext of inspecting it, stole it, riding it away.^^ In the absence of any evidence showing or raising a pre- sumption of agency between the owner of a garage and a porter employed there, by which the latter is authorized to receive personal property of one who keeps his automobile in such garage, the garage owner wall not be liable for the loss of property which has been left with such porter. Thus, where a salesman who traveled in the automobile of his em- ployer left a case of samples with the porter of the garage where the automobile was kept, saying he would call for it later, but he did not call for it until about three months had elapsed, and in the meantime the garage business had been moved to another place and the porter had quit his position, and the ease w^as lost, in an action to recover for the same, a judgment was rendered in favor of the defendant, the court declaring that there was no evidence showing the porter was acting Avithin the scope of his employment or any knowledge on the part of the defendant or its office force as to the cus- tody or even existence of the sample case until after its loss and complaint was made.^' Sec. 206. Liability of garage keeper — use of machine with- out owner's consent. Where a garage owner by the terms of his contract is not to permit an automobile to leave the garage without a written order from the owner, it is the duty of the former to use 82. nieiulc V. Spranen 108 111. App. 83. Chesley v. Woods Motor Vehi- .584. clo Co.. 147 111. App. 588. 234 The Law of Automobiles. proper diligence in devising and putting into effect some method which will prevent chanffenrs taking out ears im- properly.^* Thus, where a person placed his automobile in the care of a garage owmer under a written contract, one of the stipulations of which was that the machine was not to be taken from the garage at night without the former's written order, a verdict finding the garage owner guilty of lack of due care in failing to adopt proper methods to prevent chauffeurs taking out motor cars without due authority, was held to be justified upon evidence that the plaintiff's chauffeur during the height of the evening rush hour was seen by the defendant's watchman in plaintiif's machine to come up quickly behind an outgoing machine; that the watchman held up his hand and shouted to him to stop and produce his order to take out the machine, and that the chauffeur, instead of so doing, put on speed, dashed through the doorway and turn- ing the corner was out of sight almost immediately.^^ Inde- pendently, however, of any express agreement in respect to this, it would seem that the garage keeper should be held to the exercise of reasonable care to prevent the car from being used without the owner's consent.^" And he sliould use reasonable care in the selection of servants to assist in the management of the garage, and negligence may be based on employment of an incompetent employee or one w^ho is habit- ually intoxicated.^'' Moreover, outside of the question of negligence, if the machine is taken and damaged by his em- ployee, the garage keeper may be liable on the theory that he has failed to perform his contract with the owner of the machine.^ 84. Wilson v. Wyckoff, Church & 87. Corbott v. Smeraldo, 91 N. J. L. Partridge, 133 N. Y.\\pp. Div. 92, 117 30. 102 Atl. 889. N. Y. Suppl. 783, affirmed 200 N. Y. 88. Corbett. v. Smeraldo. 91 N. J. L. 561, 93 N. E. 1135. 29. 102 Atl. 889. "The jury could 85. Wilson v. Wyckoff, Church & liardly avoid the inference that the au- Partridge, 133 N. Y. App. Div. 92. 117 Inmohile was left with the defendant N. Y. Suppl. 783, affirmed 200 N. Y. tnr storage in hia garage. Storage in- 561, 93 N. E. 1135. volved keeping the automobile there 86. Mcl^in v. West Virginia Auto- and not permitting it to go out with- mobile Co., 72 W. Va. 738, 79 S. E. .,u1 the plaintifl's authority. If the 731. defendant cliose to intrust that duty > 92 Garages and Garage Keepers. 235 Sec. 207. Liability of garage keeper — damage to machine while driven by bailee. Where the garage keeper or his servant runs a machine left in his custody for storage or repairs and the driver is guilty of negligence causing an injury to the machine, the garage- man is generally liable for the damages sustained hy the owner .^ Where a machine is damaged through the use of the bailee, the burden is generally upon him of showing that he exercised due care.^ After the completion of repairs on the machine, if the repairer undertakes to deliver it by one of his employees to the owner, such employee's negligence causing injury vnW be considered as that of his master.^^ And where such an employee is testing the machine before delivering it to the owner, his employer will be liable for damages result ing from a collision due to his negligent operation of the car Where, by the terms of the agreement between the garage keeper and the owner the garage keeper is to deliver the automobile to the owner when called upon to do so, the chauf- feur being furnished by the former, if, while the automobile is in charge of the chauffeur, it is injured owing to his care- lessness or Avantonness, he will be considered as acting within the scope of his employment and the garage keeper vnW be liable therefor.^^ P^ven if the chauffeur deviates from the cus- tomary^ route and takes considerably longer than is ordinarily taken, the court vri\\ not say as a matter of law that the chauf- feur is not acting in the scope of his employment.^* to his night man, he was liable, not 91. Williamson v. National Cash because the night man was negligent, Register Co.. 157 Ky. 836, 164 S. W. but because the defendant himself had 112. been guilty of a breach of his contract 92. Segler v. Callister. 167 Cal. 377, of storage.'" Corbett v. Smeraldo, 91 139 Pac. 819. N. J. L. 29, 102 Atl. 888. 93. Firemen's Fund Ins. Co. v. 89. Southern Garage Co. v. Brown, Schreiber, 150 Wis. 42, 135 N. W. 507. 187 Ala. 484, 65 So. 400; Gibson v. 45 L. R. A. (N. S.) 314. Ann. C-as. Dupree, 26 Colo. App. 324, 144 Pac. 1913 E. 823. 1133; National Cash Register Co. v. 94. Southern Garage Co. v. Brown. Williams, 161 Ky. 550, 171 S. W. 162: 187 Ala. 48-1. 65 So. 400. See also Banks v. Strong. 197 Mich. 544. 164 N. Luckett v. R«ighard, 248 Pa. 24. 93 W. 398. See also Travelers Indemnity Atl. 7 73. wlierein the court said: Co. V. Fawkes, 120 Minn. 353, 139 N. ''While the employee was performing W. 703. this duty, especially in the absence of 90. Section 212. the owner, he was manifestly not the 236 The Law of Automobiles. Sec. 208. Liability of garage keeper — conversion of cus- tomer's automobile. A garage keeper must so handle the machine of another that he cannot be charged with conversion. He must deliver the machine to the owner upon the expiration of the bailment, and servant of Schmeltz, but of the defend- ant, who employed him and paid him for the service. He was under the de- fendant's control and was subject to his orders and directions. When the machine was being returned to the garage from the Schmeltz residence by the employee on the night of the ac- cident it was as much in the custody of the defendant as when it was stored in the garage. While the employee, therefore, Avas operating the machine between those tv.o places he was doing so in furtherance of the business of his employer, who was responsible for his acts. . . . When the car left the Schmeltz residence at 9 o'clock that evening it was in cliarge of and being ci>erated by defendant's servant, who was acting in the line of his employ- ment, and in about one hour later it collided with the plaintiff on one of the public thoroughfares of the city. We think tlie presumption arises that Car- ter was still operating the car at the time it struck the plaintiff. His duty required him to return the car to the garage, and in the absence of evidence showing the contrary, we must assume that he was in the performance of that duty and in charge of the car when it was going in the direction of the garage at the time of the accident. There is no question that Carter was an employee of the defendant, engaged at the garage, and that he had fre- quently taken the car to the Schmeltz home and returned it to the garage. We think, therefore, the jury under the evidence was justified in finding that the automobile which injured the plaintiff was in charge of and being operated by the defendant's employee at the time of the accident. The de- fendant further contends that if his employee was in charge of the car wliich struck the plaintiff, he was not at that time acting within the scope of his employment. The defendant sup- ports this contention by pointing to tlie testimony, wliicli shows that it only reqiiired fifteen minutes over the direct route to take the machine from Ihe Schmeltz residence to the garage, and that the accident did not occur un- til more than an hour after the chauf- feur started to make the return, and, further, tliat the machine at the time of tiie accident was coming from the direction of the city, and not from the direction of the Schmeltz home. Con- ceding the truth of this testimony, we do not think it sufficient to warrant the court in saying as a matter of law that the chauffeur was not acting in the scope of his employment when he was running the machine on Center avenue and it struck the plaintiff. There is nothing outside of this evi- dence which would warrant an infer- ence that the chauffeur had gone on an errand of his own or was operating the car for his own pleasure at the time of the collision with the plaintiff". The facts shown by the testimony just re- ferred to are not necessarily inconsist- ent with the contention of the plain- tiff that the chauffeur was taking the car to the garage, as his duty required him to do, when he struck the plain- tiff*. The deviation from the direct route by the chauffeur or the time elapsing between his departure for the garage and the accident was not so great as to necessarily warrant the conclusion that he was acting outside Garages and Garage EIeepers. 237 if he fails to make any delivery or if lie makes a delivery to an unauthorized person, he may be liable for the conversion of the machine.^^ If one having the custody of an automobile belonging to another, intrusts it to a third person without the knowledge or consent of the owner, and as a result thereof the machine is destroyed, the bailee may be held guilty of con- version.^ If by his contract he is to keep the machine in a certain place and he removes it to another without the owner's consent, where it is damaged, and the injury would not have occurred if it had been kept in the place agreed upon, he will be liable therefor.^"^ The owner's right of action for such con- version, is not lost because a chattel mortgage on the machine is subsequently foreclosed, nor does it pass to the purchaser on the foreclosure sale.^^ But where a motor car company- reduces its claim of loss for repairs to an automobile and the owner makes no tender of said amount, but offers a lesser amount, the insistence of the company on receiving the amount of its reduced claim of lien does not constitute a conversion.^' Where a plaintiff having a lien upon an automobile chassis for money loaned, allowed his debtor to deliver it to the de- fendant for the purpose of having a body placed on the ma- chine on the condition that the debtor should obtain a receipt the scope of his employment. He latter is required to recompense the might have been detained by an acoi- owner on the theory that the taking dent to his car, or by stopping to as- constitutes a conversion. Beacon Motor- sist a fellow chauffeur in trouble, as car Co. v. Shadman, 226 Mass. 570. 116 is quite customary, or the direct route N. E. 559. might have been obstructed by the con- Conversion of tools and parts. — See dition of some of the streets which re- J. C. Killgore v. VVhitaker (Tex. Civ. quired him to go a circuitous route. App. ), 217 S. W. 445. These and other reasons will at once 96. Doyle v. Peerless Motor Car Co., suggest themselves why the chauffeur 226 Mass. 561, 116 N. E. 257; Geren might be in the discharge of his duty v. Hallenbeck, 66 Oreg. 104. 132 Pac. in returning the car to the garage at 1164. the time the accident occurred." And 97. Pilson v. Tip-Top Auto Co., 67 see also section 632. Oreg. 528, 136 Pac. 642. 95. Morgan Millwork Co. v. Dover 98. Geren v. Hallenbcck, 66 Oreg. Garage Co., 7 Boyce's (30 Del.) 383, 104, 132 Pac. 1164. 108 Atl. 62; Doyle v. Peerless Motor 99. Macumber v. Detroit Cadillac Car Co.. 226 Mass. 561. 116 N. E. 257. Motor Car Co., 173 App. Div. 724, 159 Liability of unauthorized person.— N. Y. Suppl. 890. See also KnaufT v. The one taking the machine may lie Yarbray, 21 Ga. App. 94, 94 S. E. 75. liable to the garage keeper, in case the See also chapter XXXI, as to liens. 238 The Law of Automobiles. from the defendant and deliver it to the plaintiff, and tlie defendant gave the debtor the receipt, stating that tlio chassis Avas to be delivered only on return of the receipt ]:)r()p('rly in- dorsed, and the debtor in his turn indorsed the receipt, "De- liver to the order of" the plaintiff, and subseqnently the de- fendant returned the machine to the debtor equipped with a body without requiring a surrender of the receipt, it was held in an action by the plaintiff for the conversion of the machine, he having failed to collect his claim of the debtor, that the defendant was not liable, it having been shown that the de- fendant- had no knowledge of the transactions between the plaintiff and the debtor or that the plaintiff had a claim on the chassis.^ Sec. 209. Liability of garage keeper — delay in making re- pairs. If one agreeing to make repairs to a motor vehicle unreason- ably delays the completion of the work, he may be liable to the owner for damages sustained by reason of the delay. Thus, in an action for the work and labor on the machine, the owner may set-off for the delay in making the repairs.- But one in- jured by the delay in making the repairs must make a reason- able effort to reduce or minimize the loss, and he cannot re- cover the rental value of anotlier machine during the delay, where he had another machine of his own which, instead of using in place of the machine receiving repairs, he sold and delivered to another person. 3 Sec. 210. Liability of garage keeper — improper performance of work on machine. Where one undertaking to repair a motor vehicle fails to do the work properly, the owner may maintain an action for the recovery of his damages or may off-set such damages against the claim of the repairman,* whether the work is 1. Manny v. Wilson. 137 N. Y. App. 3. Woodward v. Pierce Co.. 147 111. Div. 140. 122 N. Y. Suppl. 16. App. 339. 2. Bertschy Motor Co. v. Brady, 168 4. Holcomb to. v. Clark, 86 Conn. Iowa, 609, 149 N. W. 42. -19, S.l Atl. 37C; Ruasell's Express v. Bray's Garage (Conn.), 109 Ati. 732. Gakages and Garage Keepers. 239 done by the repairiuaii or by special employee/' Where one for a stated sum agreed to build a body on the chassis of an automobile furnished by the plaintiff, but the work was not properly done, it has been held the plaintiff is not entitled to recover the difference between the value of the whole ma- chine if the work had ])een properly done and the value of the machine as delivered to the defendant, but that the true measure of damage is the cost reasonably necessary to make the work and materials conform to the contract.'' Expert evidence may be received as to the cost of repainting the ma- chine and renewing certain woodwork and trimming, which work was claimed to be necessary by reason of the repair- ]nan's negligent treatment of it.' Sec. 211. Liability of garage keeper — sale of inferior sup- plies. In an action by the owner of an automobile for damages alleged to have been caused by the use in his machine of lubricating oil furnished by the defendant, the evidence was examined and it was held that the plaintiff had failed to show- that the oil was defective, the only evidence of a defect in the oil being the presence in the cylinders and crank case of a carbon deposit w^hich might have been occasioned by an over- flow of the oil in the combustion chambers, due to wear in the 5. Russell's Express v. Bray's Gar- plaintiff at the end of December, 1906, age (Conn.), 109 Atl. 732. and what its value would have been if 6. Anthony v. Moore & Munger Co., the agreed work had been properly 135 N. Y. App. Div. 203, 120 N. Y. done.' Such testimony was improperly Suppl. 402, wherein it was said: "The admitted and the instructions were court charged, in submitting the case erroneous. Had the defendant con- to the jury (to which tlic defendant tracted to build an automobile, this e.Kcepted) : 'If. liowever, you believe would have been the proper measure tliat the work which the defendant had of damage, but that was not the con- agreed to do was not workmanlike or tract. What the defendant agreed to that the materials furnished were not do was to build a body and place it as agreed, or both, in some or all of the upon a chassis furnished by the plain- matters claimed by the plaintiff, he tiff and also to furnish other materials would be entitled to your verdict in an and make certain repairs upon the ma- amount which would fairly and reason- chine." ably represent the difference between 7. Holcomb Co. v. Clark. R6 Conn, the value of the automobile as it was 319, 85 .Atl. 376. when the defendant dcllvird it to the 240 The Law of Automobiles. cylinders, and there being no evidence that the wear was oc- casioned by the oil in question rather than by the ordinary use of the machine.^ Sec. 212. Liability of garage keeper — burden of proof. A serious question is presented as to whether, in case of in- jury to a vehicle which is the subject of a bailment, the burden of proof is on the owner to show that the injury was the re- sult of the bailee's negligence, or whether the burden is on the bailee to show his freedom from negligence. Where, upon return of the vehicle of the owner, it appears that unusual injury has resulted to it, the burden is generally placed on the bailee to show that such injury was not the result of his negligence.^ But, when the cause of action is not based on an injury to the machine but upon the failure, of the bailee to redeliver the property, if the bailee shows that it was lost or stolen or was destroyed by fire, then the burden is gen- erally placed upon the owner to show that the loss was due to the negligence of the bailee.^^ The burden of proof in such cases has occasioned a divergence of opinion, and decisions 8 Knight v. Willard, 26 N. Dak. 140, 143 N. W. 346. 9. Alabama. — Southern Garage Co V Brown, 187 Ala. 484, 65 So. 400; Thomas v. Hackney. 192 Ala. 27, 68 So. 296. "The evidence, however, hav- ing established the injury to the car while in the custody of the plaintiff, the burden of proof was upon him to show at least that degree of care on his part that the law required of him when the car was injured. He simply proved a collision and, from aught that appears, it may have resulted solely from his fault and while not in the exercise of even slight care. He had the custody of the car and was in the same when it was injured, and should have shown enough facts con- nected with the collision as would have acquitted him of the failure to exer- cise that degree of care owing to the defendant." Thomas v. Hackney, 192 Ala. 27, 68 So. 296. Colorado. — Gibson v. Dupree, 26 Colo. App. 324, 144 Pae. 1133. Kentucky. — ^National Cash Register Co. V. Williams. 161 Ky. 550, 171 S. W. 162. Michigan. — S(mith v. Bailey, 195 Mich. 105, 161 N. W. 822. Minnesota. — See Travelers Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N. W. 703. New York. — Wimpfheimer v. Demar- tnt & Co., 78 Misc. (N. Y.) 171, 137 K. Y. Suppl. 908. South Dakota. — Gilbert v. Hardi- mon, 40 S. Dak. 482, 168 N. W. 25. 10. Glende v. Spraner, 198 111. App. 584; Allen v. Fulton Motor Car Co., 71 Misc. (N. Y.) 190, 128 N. Y. Suppl. 419. Garages and Garage Keepers. 241 may be found placing the burden on the garageman of sho-^^ng that his negligence did not contribute to the loss." Sec. 213. Liability of garage keeper — acts of driver injury- ing third person. Where a garage keeper has control of the motor vehicle of another so that the relation of bailor and bailee exists be- tween the parties, the garageman, not the owner, is the per- son responsible for the chauffeur '.s negligence which results in an injury to a third person.^^ Of course, if the driver of the car was acting without the scope of his authority and was using the car for his personal purposes, neither the garage keeper nor the owner would be liable for his negligence." Where the owner of an automobile stored it at a garage under an agreement by which the garage keeper, for an agreed com- pensation, was to furnish a chauffeur from time to time as requested to drive the car (it being left to the garage keeper to select the driver and pay him his compensation and to hire and discharge him at pleasure), the relation of master and servant existed between the garage keeper and the driver, and the garage keeper was liable for negligence of the driver while operating the car at a time when the owmer was an occupant thereof, if such owner did not assume to direct or control the method or manner of driving, further than to tell the driver where he desired to go." But, where an owmer of an automobile took it to an automobile company to have a 11. Morgan Millwork Co. v. Dover 66 Oreg. 533, 135 Pac. 91, 48 L. R. A. Garage Co.. 7 Boyce (30 Del.) 383. 108 (X. S.) 424; OueUette v. Superior Atl. 62; Hight Accessory Place v. Lam Motor & M. Works, 157 Wis. 531, 147 (Ga. App.), 105 S. E. 872; Renfroe v. N. W. 1014. And see section 646. Fouche (Ga. App. ) , 106 S. E. 303 ; Hocl 13. Luekett v. Reighard, 248 Pa. 24, V. Flour City Fuel & Transfer Co., 144 93 Atl. 773. See also Spradlin v. Minn. 280, 175 N. W. 300; ,Steenson v. Wright Motorcar Co., 178 Ky. 772, IftO Flour City Fuel & Transfer Co., 144 S W. 1087. And see section 627, et Minn. 375, 175 N. W. 681; Beck v. seq. Wilkins-Ricks Co. (N. Car.), 102 S. 14. Neff v. Brandois. 91 Neb. 11, 135 E. 313. N. W. 232, 39 L. R. A. (N. S.) 933; 12. Roach V. Hinchcliff, 214 Mass. Dalrymple v. Covey, etc. Co., 66 Oreg. 267, 101 N. E. 383; Geiss v. Twin City 533. 135 Pao. 91, 48 L. R. A. (N. S.) Taxicab Co., 120 Minn. 368, 139 N, 424; Ouellcttc v. Superior Motor & M. W. 611; Dalrymple v. Covev. etc. Co., Works, 157 Wis. 531. 147 N. W. 1014. 16 242 The Law of Automobiles. *' rattle" in the car located, and an emx)loyee of the company got in the car and rode with the owner and later, at the sug- gestion of the owner, the employee drove the machine until it collided vnih a street car and the owner was injured, it was held that the negligence of the employee, if any, in driving the car could not be imputed to the automobile company so as to make it liable to the owner for his injuries, it appearing that the owner was directing the employee where to drive the ma- chine, that the company had no authority to control the em- ployee in driving it and that the company had not assumed the service of driving or operating it.^^ Sec. 214. Liability of garage keeper — acts of servant towing disabled machine. Where a part of the business of a garage is to tow for hire automobiles requiring that service, if the real or apparent authority of an agent who is requested to send a machine for such purpose is limited to the selection of only the necessary number of men and he selects more, it is held that the surplus men cannot be regarded as the servants of the garage 0A^^ler. If, however, such agent is empowered to send as many men as he thinks necessary and acting under such authority he sends such men as he thinks necessary, but more than in fact are necessary, or if he is empowered to send as many men as he pleases, and he sends more than are necessary, then it is held that the men so sent are the servants of the garage owner, whether or not they are in fact needed.^^ Where two persons were taking a drive together in an automobile owned by one of them, having agreed to share equally the expenses of the trip, and the automobile, which was kept at defendant's garage became disabled, and the owner sent to the defendant garage for a tow, and a person was sent with a machine to which the disabled car was hitched, and while proceeding at a rate of speed alleged to be high, the car being towed was thrown against a telephone pole, causing both personal in- juries and injuries to the automobile for which it was' claimed 15. Bastien v. Ford Motor Car Co., 16. Beaucage v. Mercer, 206 Mass. 189 111. App. 367. 492, 92- N. E. 774. Gaeages and Garage Keepers. 243 the defendant was liable, both on the ground of a negligent hitching of the cars together and that there was negligence in the towing, and it appeared that the owner of the automobile had protested against the nianiier in which the hitching was done, an instruction was held to be erroneous, which stated that, if he had so protested with a full appreciation and knowl- edge of the dangers involved in riding in the machine, under those circumstances, neither of the plaintiffs would bo entitled to recover since the effect of the instruction was to authorize the jury to fmd for the defendant, even if the accident was due not to the defective hitching, but solely to the manner in which the towing car was managed." Sec. 215. Liability of garage keeper — defective premises. The owner of a garage is liound to furnish a reasonal)ly safe working place for his servants, and in case of a failui-e in this respect, he is liable, even under the common law sys- tem, for the injuries resulting from his failure. Thus, one of his employees may recover for injuries sustained in falling down ail unguarded elevator shaft.'^ The owner of a garage must also use reasonable care in providing its workmen with safe and suitable appliances for use in their work.^^ The lia- 17. Beaucage v. Mercer, 206 Mass. iutendent was poured under the rear 492, 92 N. E. 774. wlieels of the car to make it skid, and 18. Kinsey v. Locomobile Co., 23.") was injured, and his testimony that in Pa. St. 95, 83 Atl. 682, wherein it wa? other garages where he had worked said: "The principle of law which there was either a turn-table or skids controls this case is that one who main used to turn the cars around was cor- tains a building for the purpose of loborated, it was held that a dismissal trade or doing business with other per- of the complnint mi the ground that sons, no matter what the business is. is plaintiff had failed to prove a cause bound to use reasonable care in keep- of action was reversible error. It was ing the premises safe." the duty of the di'feiidant to use rea- 19. Bowers v. Columbia Garage Co., sonable care in pro^^ding its workmen 93 Misc. (N. Y.) 49. 156 N. Y. Suppl. with safe and suitable appliances in 286. their work, and it being inferred that, Turn-table. — While plaintiff, after if skids or a turn-table had been pro- washing an automobile in defendant's \ Uled, the superintendent would not garage where ho was employed, was have ordered kerosene oil to be thrown skidding the car around on tlie wash- under the wheels of the automobile, stand so as to get it back in its place, and if the oil used because of the ab- when he slipped on some kerosene oil, senoe of appliances created a dangerous which by order of defendant's super- condition in the prosecution of the 244 The Law of Automobiles. bility in case of defective premises may extend so as to create a cause of action in favor of a person, not an employee of the garage keeper, but entering the premises to do business with the owner or for some other lawful purpose. Thus, one struck by a motor vehicle as he is entering a garage may have a cause of action against the garageman or the driver of the vehicle.^ Where a prospective purchaser of an automobile while inspecting the machine in the owner's garage is injured by its sudden and unexpected motion against him while it is being manipulated and operated by the ovmeT, the doctrine of res ipsa loquitor applies, and the burden is placed on the owner of explaining the accident.^^ ■work, the defendant was chargeable 154 N. W. 877; Jewison v. Dieudonne, with negligence. Bowers v. Columhia 127 Minn. 163, 149 N. W. 20. Garage Co., 93 Misc. (N. Y.) 49, 156 21. Barnes v. Kirk Bros. Auto Co., N. Y. Suppl. 286. 32 Ohio Circuit Rep. 233. 20. Stodgel V. Elder, 172 Iowa, 739, ClIAUFJ-EUliS. 245 CHAPTER XII. CHAUFFEURS. Section. 216. Scope of chapter. 217. Chauffeur defiucd. 218. Origin of term " cliaufteur. " 219. Status of chauffeur. 220. Regulation of chauffours — in general. 221. Regulation of chauft'eur.s — powers of municipalities. 222. Regulation of chauffeurs— age limit. 223. Licensing of chauffeurs^ — in general. 224. Licensing of chauffeur.* — discrimination between paid chauffeurs and other operators. 225. Licensing of chauffeurs- — unlicensed chauffeur receiving instruction. 226. Licensing of chauffeurs — effect of failure of chauffeur to have license. 227. Rights of chauffeur. 228. Liability of master for injuiy to ciiaulVeur. 229. ■ Liability of chauffeur to owner. Sec. 216. Scope of chapter. The discussion in this chapter covers a few topics which relate peculiarly to the drivers of motor vehicles, as dis- tinguished from their o^Tiers. Thus, at this place are treated such subjects as the regulation and liceiising of chauffeurs, and the liability of the owner for injuries to his chauffeur. The general power of the State and of municipal corporations to regulate the operation of motor vehicles, is included in other chapters.^ And the liability of the owner for injuries to third persons caused by the negligent operation of the ma- chine, is treated in another chapter." A distinction is to be drawn between the licensing of motor vehicles and the licensing of the operators of such machines. Statutes in most States require that both the machine and the chauffeur be licensed. In other States statutes have been enacted which contemplate the licensing of the owners or operators of ma- chines rather than the machines.^ 1. See chapters V and VI. Afontg. Co. L. Rep. (Pa.) 203. See 2. Chapter XXIIL also In rr Automobile Acts, 15 Pa. Dist. S. Commonwealth v. Templeton, 22 Rop. 8?>. 246 The Law of Automobiles. Sec. 217. Chauifeur defined. The term chauffeur uieans one who niaua^e.^ the rumiing of an automobile. The term in legal significance may be said to mean any person operating or driving a motor vehicle, as an employee, or for hire. This is the definition of the term contained in the motor vehicle laAvs of some States.* The Pennsylvania Automobile Act of April 19, 1905, P. L. 217, applies to the operator of an automobile and not to the owner. Commonwealth v. David, 33 Pa. Co. Ct. 12. Carrying license. — Wliere an auto- mobile is owned by two partners, both of whom are licensed, and the machine carries the numiber of one of the licensed partners, and both partners are occupants of the machine, the oper- ation of the machine by the partner whose license is not carried, is not a violation of the act of April 19. 1905, P. L. 217. Yeager v. Winton Motor Carriage Co., 53 Pa. Super. Ct. 202. 4. " By a ' chauffeur ' is meant ane who operates an automobile for hire." Staack v. General Baking Co. (Mo.), 223 S. W. 89. Probably the best defini- tion of the term chauffeur is that the word designates a person who habitu- ally and as an ocupation drives a mo- tor vehicle commonly calletl an auto- mobile, for hire generally, or for a master or employer who engages the services of the employee at regular wages. A person who owns an auto- mofbile and carries on a hacking busi- ness personally operating the machine, although he drives "for hire" and may bp said to be a chauffeur, nevertheless, is not a "chauffeur" within the mean- ing of many automobile enactments and does not come within the commonly ac- cepted understanding of the word. In an automobile law of the Province of Quebec the word "chauffeur" has been defined as meaning a person skilled in operating motor vehicles who habitu- ally drives such vehicles as a means of livelihood. See section 1, subdivision ;?. of tlio Victor Vehicle Law of Quebec 1906. In New York, as is the case in sev- eral of the States, the term has been expressly defined by the Motor Ve- hicle Law as meaning any person op- erating or driving a motor vehicle as an employee, or for hire. See ch. 374. N. Y. Laws. 1910, § 281, p. 674. A salesman for an oil company who uses the company's truck for the sale and delivei-y of oil, is not a "chauf- feur" within the meaning of the Texas statute relating to the licensing of chauffeurs. Matthews v. State, 85 Tex. Cr. 469, 214 S. W. 339. The chauffeur is engaged in manual labor. — Smitli v. A^soiiatod Omnibus Co., Div. Ct. 916. Legal result of definition of terra.- — All persons coming within the defini- tions of the term "chauffeur," as pro- vided in tho various automobile enact- ments, are subject to the regulations intended to govern chauffeurs. Con- vorselv, nil persons who do not come within the definition are exempt from those provisions of law intended to gov- ern that class of individuals. The im- ]>ortance of the term including every person intended and who should be re- yvilated as a ehauffexir, and excluding every individual who should not be so regulated, is apparent. Take, for ex- ample, the New York Motor Vehicle Law of 1904, which lias been copied ex- tensively by automobile legislation throughout the United States. Three classes of persons were required to register with the Secretary of State; namely, owners, chauffeurs, manu- facturers, and dealers. Tf a person I Chauffeurs. 24' Sec. 218. Origin of term "chauffeur." A "chauifeur" \vas a meniber ol" the bands of outlaws, dur- ing the reign of terror in France, who roamed over the north- eastern part of the country under the lead of John the Skinner, or Schinderhaunes. They garroted nieii and women, and roasted their feet to compel them to disclose hidden treasure. In 1803 rigorous measures were taken which resulted in their suppression. AVith the increasing use of the automobile as a means of recreation and transportation, the term chauffeur was applied to the driver who operated the carriage and the mechanic w^ho was carried to look after the machinery and fuel. The origin ot* this use of the term is Touiid in France, where automobiling first found favor as a s])ort, the word chauffeur being there employed to designate a fireman or stoker.^ Sec. 219. Status of chauffeur. The legal status, duties, and responsibilities of th(^ chauf- feur or oijerator of a motor car are of vital interest, not only to the motorist, but to others. Those who employ chauffeurs have interests at stake. Those who are employed as chauf- feurs not only have serious responsibilities of a personal na- ture, but are. to a great extent, the guardians of their em- ployer's interests. The chauffeur or operator of an automo- bile occupies towards his employer and the public a serious position, one Avhich compares favorably in the necessity for prudence, diligence, and intelligence w'ith that of the railroad does not l)olong to eitlier one of these classes of individuals, he is not subject to the regulations. A person may be neither an owner nor a chauffeur un- der the 1904 New York law, in which case he is at liberty to drive a hired or borrowed automobile without a license. This is a defect in laws similar to tlie one mentioned and should be remedietl. The true purpose of regulations con- trolling the chauffeur is to regulate all automobile drivers who are not other- wise permitted by license to drive an automobile. Some of the State laws cfimpel owners to obtain a driver's li- cense before they can operate a motor vehicle wliich lias been registered. Other State laws permit the owner to drive his automobile upon registration of the machine with the proper oflBce. It will be seen that the term "chauf- feur" should be as comprehensive in its meaning as is intended by the law. All (hauffeiirs arc necessarily automobile drivers, but all automobile drivers are not chaufTeurs. 5. The New International Encyclo- pedia, vol. IV, p. 427. 248 The Law of Automobiles. engineer or master of a ship. As between the owner of a motor vehicle and a paid chauffeur, the relation is that of master and servant, and the liability of the parties to each other, as well as to third persons, is determined according to the principles of that relation.* Sec. 220. Regulation of chauffeurs — in general. The occupation of a chauffeur for hire is one which, under the police power inhering in legislative bodies, may properly be a subject for government regulation." When a calling or profession or business is attended with danger and requires a certain amount of scientific knowledge upon which others must rely, then legislation properly steps in and imposes con- ditions upon its exercise.'* That the occupation of a chauffeur is of this character may not he questioned and has been de- cided.^ As was said in one case,^ ' ' If any subject can be con- ceived of which requires the exercise of the powers assumed by this ordinance for the safety of the public it is the ascer- tainment of the qualifications and fitness of operators of auto- mobiles and other motor vehicles driven through the streets of a city like Chicago. These ponderous vehicles, driven by powerful engines, are a menace to the public safety unless managed and driven by persons who ar€ competent and quali- fied to operate them. Those used for transporting heavy mer- chandise are practically engine-driven freight cars. The owners of such vehicles are not different from other persons — no better, no worse. They include not only the prudent and those considerate of the rights of others, but also the incom- petent, the careless, reckless and lawless. The great majority are prudent and careful, but it is only human nature that arbitrary power should beget arbitrary act, and the symptoms and conduct before and after ownership are frequently well 6. See sections 627-654. as to liabil- 8. Christy v. Elliott, 216 111. 31, 108 ity to third persons. Am. St. Rep. 196, 3 Ann. Cas. 487, 1 7. Matter of Stork, 167 Cal. 294, 139 L. R. A. (N. S.) 215, 74 N. E. 1035; Pac. 684;. Ruggles v. State, 120 Md. State v. Swagerty, 203 Mo. 517, 102 553, 87 Atl. 1080. S. W. 483. 7a. Minneapolis, etc. Railroad Co. v. 9. Chicago v. Kluever, 257 111. 317, Beckwith, 129 U. S. 29, 32 L. Ed. 585, 100 N. E. 917. 9 Sup. Ct. Rep. 207. Chaufffatrs. -4!' marked. Careless and ineoiupetonl (Operators ciidangcT the public safety, and with another class the tooting of the horn is a warning to get off the highway or street, directed to the citizen for whose use it was originally laid out. Naturally enough, there has been a great loss of life on the pul)lic streets because of these vehicles, and very frequently in the darkness and excitement or tumult the operator has escaped. Every- one knows the dangers of the operation of these machines on the public streets, and especially in a metropolitan city, when the streets and crossings are thronged with citizens." Among provisions which are considered a valid exercise of the police power are those forbidding the carrying of a person on a motor vehicle in front of the operator.^^* Or a chauffeur may be compelled to wear his badge in sight, but in an action for injuries to an automobile occasioned through a collision at a raUroad crossing, it is: no defense that the badge of the chauffeur was not in sight." Sec. 221. Reflation of chauffeurs— powers of municipalities. Municipalities are generally invested with powm- to regu- late the operation of motor vehicles A\'ithin their territorial limits.^ Under its power to regulate the use of streets and pass and enforce all necessary police regulations, a city nun- require the drivers of automobiles used in transporting per- sons or property for hire to be examined and licensed by the city, notwithstanding such drivers have licenses under the State law, where a proviso to the State law or the State con- stitution reserves such power to the city.^^ ^ tax imposed by the State on the vehicle does not necessarily abridge the power of a municipality to charge a license fee on chauffeurs." But where the State statute expressly pro^adeg that local authori- ties shall have no power to pass ordinances requiring licenses from chauffeurs, a local regulation to that effect is not en- 10. In re Wickstrum, 92 Neb. 523. Taxi Co. (Ala.). 82 So. 117; Oity of 138 N. W. 733. (liicago v. Kliicver, 257 Til. 317. 100 11. Latham v. Cleveland, Cincinnati N. E. 917. C. & St. L. R. Co., 164 111. App. 659. 14. Wasson v. City of (ir.M'nville 12. Chapter VI. (Mi.se.), 86 So. 450. 13. Oity of Montgomery v. Orpheum 250 The Law of Automobiles. forceable.^ And it lias been held, applying the general rule that municii^al corporations have only such power as may be granted by the Legislature unless otherwise provided in the constitution, that a city having only authority "to license, tax, and regulate hacknien, draymen, omnibus drivers and drivers of baggage wagons," has no power to jjrovide that it shall be unlawful for any person under the age of sixteen years to operate any automobile or motor vehicle upon the streets of the city, as the power conferred by such a statute is one of regulation, not of prohibition.^^ Moreover, it has been held that, as a prerequisite to one operating his automo- bile for pleasure on the public ways, the city of Chicago has no power to require a party who uses his automobile for his private business and pleasure only, to submit to an examina- tion and to take out a license, for such is imposing a burden upon one elass of citizens in the use of the streets, which is not imposed upon others, and such an ordinance is beyond the power of the city council and is therefore, void." Sec. 222. Regulation of chauffeurs — age limit. Statutes have been passed in many States forbidding the operation of motor vehicles by minors under a prescribed age.^^ Regulations of this 'character are proper, and are de- signed for the protection of other travelers on the highway." A statute of this character constitutes a legislative declara- tion that persons below the limited age are incompetent to operate a motor vehicle upon the public highways.^*^ If, 15. Barrett v. City of Xew York, 180 of itself, to be deemed a dangerous Fed. 268. machine, nevertheless it becomes such 16. Ex parte Epperson, 61 Tex. Cr. in the hands of a careless and inex App. 237, 134 S. W. 685. perienced person. The statute has, in 17. Chicago v. Banker. 112 Til. App. effect, so declared when it forbids its 94. operation by persons under the age of 18. Mannheimer Bros. v. Kansas eighteen. It, in substance, declares Casualty & Surety Co. (Minn.), 180 that such persons do not possess the ■ N. W. 229. requisite care and judgment to run 19. Schultz V. Morrison, 91 Misc. R. motor vehicles on the public highways 248, 154 N. Y. Suppl. 257, wherein it without endangering the lives and was said: "The object and purpose limbs of others." of the statute is to promote the safety 20. Daily v. Maxwell. 152 Mo. App. of those traveling the public highways. 415, 133 S. W. 351. While a motor vehicle is not, in and CllAL IFEUKS. 251 (lieroforo, tlie owner oi' .^ucli a veliick' jjeniiits an int'aiit under the given age to drive the machine, and an injury is thereby occasioned to a third person, the violation of the statute by the owner may be a ground for liokling him liable for the in- jnries.^^ Although the driving of a motor vehicle l)y an infant under the preseri])ed age may be negligence per se, there may be a question for the jury as to whether the violation of the law is the proximate cause of injuries in a particular case." A municipal regulation prohibiting any person under eighteen years of age from operating a motor vehicle within the city limits may be held unreasonable where the regulation is ap- parently designed to include property other than streets and alleys.^' Sec. 223. Licensing of chauffeurs — in general. Under its police power of regulating the public highways, the State may, directly by means of a statute, or indirectly by authorizing a municipal corporation to pass ordinances on the subject, require that chauffeurs shall be licensed and ])ay a reasonable license fee.^^ If the State constitution preserves the right of municipal corporations to regulate chauffeurs in certain cases, the legislative body may be without power to interfere.25 Under a statute defining a ''chauffeur" as any person operating or driving a motor vehicle as an employee or for hire, an employee of an electric company who uses in the discharge of his duties an automobile furnished liy his employer, must procure a license,^ but a salesman of an oil company using its truck for the sale and delivery of oil is not 21. Daily v ^raxwell. 152 Mo. App. section 662. 415, 133 S. W. 351; Schultz v. Morri- 22. Tayloi- v. Stewart. 175 X. Car. son, 91 Misc. (N. Y.) 248, 154 N. Y. 199. 95 S. K. IGT. Siippl. 257; Allen v. Bland (Tox. Civ. 23. Uoyal Indemnity Co. v. Scliwartz App.), 168 S. W. 35. "Wlien the de- i Tex. Civ. App.). 172 S. W. 581. fendant permitted one of liis own 24. Matter of Stork, 167 Cal. 294, family, whose acts he had the rijrlit and 139 Pac. 684; deary v. Johnston, 79 authority to control, to operate his car. X. J. L. 49, 74 Atl. 538. he became a party to the violation of 25. City of IVfont^omery v. Orpheum the statute, and should he held respon- Taxi Co. L\la.). 82 So. 117. sible for the con=:t-quence which fol- 26. People v. Fulton. 96 >fi«c CS lowed." S^chult/ v. Nforrison. 91 Misc. Y.) 663. 162 N. Y. Suppl. 125. 248, 154 X. V. Sw|)p]. 257. And see 252 The Law of Automobiles. necessarily a ''chauffeur."-' Law.s regulating chauffeurs should prohibit the issuance of licenses to minors under a prescribed age.'^ The failure of an applicant for a chauffeur's license to disclose physical disalnlitios does not render the license void, nor make him a trespasser in operating the ma- chine on the highway, but the license is valid until it is revoked by the proper authority.^ The license fees for the drivers of motor vehicles may be graduated according to the horse power of the machines. Thus, a statute lixing an annual fee of three dollars for registering an automobile of less than thirty horse power and a fee of five dollars for each automobile of thirty horse power or more, and fixing a fee of one dollar for a license to the driver of the first class and of two dollars for one to a driver of the second class, has been held to be consti- tutional as being a legitimate exercise of the police power of the State, notmthstanding the clause in the statute that requires all fees, fines and penalties arising under the act to be paid to the treasurer of the State and to be apportioned by the State road commissioner for the repair of improved roads.^* Sec. 224. Licensing of chauffeurs — discrimination between paid chauffeurs and other operators. A distinction may properly be drawn between the pro- fessional chauffeur who operates the machine of his employer for hire, and other operators such as those who run their own cars. Hence, a regulation relative to chauffeur's licenses is not an unlawful discrimination because it charges a license fee on professional chauffeurs of five dollars annually, while other operators are required to pay only two dollars for a license which does not need to be renewed annually.^ More- over, a statute maj^ be enacted imposing a reasonable license 27. Matthew-8 v. State, 85 Tex. Cr. 30. Cleary v. Johnston. 79 N. J. L. 469, 214 S. W. 339. 49, 74 Atl. 538. And seo sections 109- 28. Section 222. 115. 29. O'Hare v. Gloag. 221 Mass. 24, 31. Ruggles v. State, 120 Md. 553, 108 N. E. 566. 87 Atl. 1080. Chauffeubs. 253 fee against the professional cliauffeur and (.-XL-iiipting the other classes of operators from any charge of that nature.^- Sec. 225. Licensing of chauffeurs — unlicensed chauffeur re- ceiving instruction. Statutes which regulate the licensing of chauffeurs con- template that an applicant for a license shall have received training in that work. Tlus would present an inconvenient situation were it not for provisions in such laws permitting an unlicensed person to operate a vehicle without a license when he is accompanied by a licensed chauffeur. Such a pro- vision is designed to afford an opportunity for persons to become proficient under the supervision of an experienced. driver.^" Under a statute permitting an unlicensed person over a designated age to operate a motor vehicle when ^'accom- panied by a licensed operator," the latter must, in order to comply with statute, be in such proximity to the former as to 32. Matter of Stork. 167 Cal. 294, 3 39 Pac. 684, Avherein the court said: "There are unquestionable elements of similarity, even of identity, between the driving of an automobile by a pro- fessional chauffeur and the driving of a like vehicle by a private owner, designated in this act as an 'operator.' Thus it may not be gainsaid that the ignorance of the one is as likely to re- sult in accident as the same ignorance upon the part of the other. The reck- lessness of the one is as likely to re- sult in injury as the recklessness of the other. It is equally dangerous to other occupants and users of the highway \shether the unskilled or reckless driver be a chauffeur or 'operator.' All these matters may be conceded, and yet there are others of equal significance where the differences between the two classes of drivers are radical. Of first im- portance in this is the fact that the chauffeur offers his services to tlie pub- lic and is frequently a carrier of the general public. Thp«ic rircumstances p\it professional chauffeurs in a class by themselves and entitle the public to icceive the protection which the legis- lature may accord in making provision for the competency and carefulness of such drivers. The chauffeur, generally speaking, is nut driving liis own car. He is intrusted witii the property of otliers. In the nature of things a dif- ferent amount of care will ordinarily be exercised by such a driver than will be exercised by the man driving his own car and risking his own property. Many other considerations of like raturo will readily present themselves, but enough has been said to show that there are sound, just, and valid rea- sons for the classification adopted. The argument of the peril attending the public at the hands of the un- licensed operator driving his own car is not without force, but it can only successfully be present<>d to the legis- lative department and not to the courts." 33. Bourne v. Whitman, 209 Mass. 155. 95 N. E. 404, 35 L. R. A. (X. S.) 701. 254 The Law of Automobiles. be able to furnish with reasonable promptness, necessary advice and assistance for the safe operation of the car, the closeness of the proximity varying according to the circum- stances of the particular case, having reference to the experi- ence of the unlicensed operator and the mechanism and equip- ment of the car.^* Sec. 226. Licensing- of chauffeurs — effect of failure of chauf- feur to have license. When an automobile is not registered and licensed accord- ing to the regulations on the subject, as is said in another place in this work,^^ there is a conflict, of authority as to whether the non-registration will bar an action for injuries to the machine or an occupant, where such injuries are the result of the negligence of a third person. The general rule is that the non-registration is not a proximate cause of the injury and does not affect the right of recovery, but a con- trary rule is adopted in Massachusetts and a few other States. The situation with reference to an unlicensed chauffeur is analagous, and it is to' be expected that the courts will hold that the failure to procure a license will not preclude a re- 34. Hughes v. New Haven Taxicab able to furnisb with reasonable prompt- Oo., 87 Ck)nn. 416, 419, 87 Atl. 42. iiess such advice aud assistance as may Judge Wheeler said in this case: be necessary for the safe operation of "The legislature . . . knew that, the car. The degree of experience of unless it provided a method by which the unlicensed operator would deter-" beginners could learn to operate an au- mine the necessity for the advice and tomobile, there would be no opportun- assistance and have much to do with ity for them to acquire skill by prac- settling the closeness of proximity re- tioe so that they might qualify as qviired. So, too, the mechanism and licensed operators. To accomplish this equipment of the car might determine end it provided this necessary excep- in a given case that the licensed op- tion to the general rule and at the same erator should be by the side of the un- time endeavored to maintain the pub- licensed operator, while in another case lie safety by providing for the opera- such proximity might not be required. tJon of an automobile by an unlicensed In short, ordinarily each case must be person, if accompanied by a licensed decided upon its own facts by the ap- operator. who should be personally plication to those facts of the construc- liable for any violation of the auto- tion we accord the words 'accompanied mobile act. Tlie language 'accompanied by.' Ordinarily, as in this ca.9e, the by' means that the licensed operator ultimate decision is one of fact for the shall he in such proximity to the un- jury and not of law for the court." licensed operator of the ear as to be 35. See sections 125-127. Chauffeurs. 255 covery for injuries sustained while driving a motor vehicle. The courts so hold, so far as the statutes are similar.'^ Nor does the fact that the operator has no license forbid a re- covery hy the owner for damages to the machine.^' Nor can the absence of a license be charged as a ground of liability in case the machine injures another traveler, unless the lack of the license has a bearing upon the accident by reason of the unskillfulness of the chauffeur.^^ Even in Massachusetts, where the courts take the contrary view on the licensing of machines, the general rule is followed in cases involving the absence of a chauffeur's license.^^ The statutes in some 36. Crossen v. Cliicago, etc. Co., 158 111. App. 42; Sta«k v. General Bakino; Co. (Mo.), 223 S. W. 89; Zageir v. Southern Express Co., 171 N. Car. 692, 89 S. E. 43; Marquis v. Messier, 39 R. I. 563, 99 Atl. 527. "Tt is true that the plaintiff, at the time of the acci- dent, was negligent in not procuring a license from the city of Asheville to operate her automobile upon the streets of the city, but she is not placed out- side all protection of the law, nor does she forfeit all her civil rights merely because she violated such ordinance. The plaintiff's violation of the law, in order to bar her recovery, must, like any other act, be a proximate cause in the same sense in which defendant's negligence must have been a proximate cause to give a right of action. A collateral unlawful act not contribut- ing to the injury will not bar a re- covery. . . . The right of a person to maintain an action for a wrong com- mitted on him is not taken away be- cause at the time of tlie injury he was disobeying a statute, which act on his part in no way contributed to his in- jury." Zageir v. Southern Express Co., 171 N. Car. 692, 89 S. E. 43. Failure to carry license. — Though a statute may forbid a recovery by an "unlicensed" operator, one who has re- ceived a license but fails to carry it at the time of an accident is not barred from recovery. Kiely v. Ragali (Conn.). 106 Atl. 502. 37. Crossen v. Chicago, etc. Co., 158 111. App. 42; Moyer v. Shaw Livery Co., 205 Til, App. 273: Moore v. Hart, 171 Ky. 725, 188 S. W. 861: Mcllhenny v. Baker, 63 Pa. Super. Ct. 385. 38. Brown v. Green & Flinn, Inc., 6 Del. (Boyce) 449, 100 Atl. 475; Wol- cott v. Renault Selling Branch, 175 N, Y. App. Div. 858, 163 N. Y. Suppl. 496; Dervin v. Frenicr, 91 Vt. 398, 100 Atl. 760. See also CHare v. Oloag, 221 Mass. 24, 108 N. E. 566. ' ' Pigeon had been for several years licensed to oper- ate an automobile, but at the time of the accident his license had expired and had not been renewed. This was some evidence of his negligence in oper- ating the car, but it was not conclu- sive and did not warrant the ordering of a verdict." Pigeon v. Massachu- setts, etc. St. Ry. Co., 230 Mass. 392, 119 X. E. 762. "The failure to employ a licensed chauffeur is some evidence of negligence which may be overcome by subsequent evidence showing that, notwithstanding the fact that the chauffeur was not licensed, he was thoroughly competent and was not re- sponsible for the collision. It is not an immaterial question like the fail- ure to have a car license which can have no possible bearing upon the oper- ation of the car. The violation of the 256 The Law or Automobiles. states, however, condemn the travel, so that the unlicensed driver is not permitted to recover for his injuries/^ The criminal liability for a failure to obey regulations in respect to the licensing of chauffeurs, is discussed in another chapter/^ Sec. 227. Rights of chauffeur. Ordinarily where the chauffeur's contract for service is for a certain time, if the employer discharges the chauffeur be- fore the expiration of the term of employment, the employer is still liable for the chauffeur's pay unless the latter has given cause by showing himself unable or unwilling to do what he has undertaken to do.''^ But if the contract is for a time cer- tain, and the chauffeur leaves without cause before the time expires, it is held that a servant in such a case has no claim for services already rendered. However, if prevented from performing his duties by sickness, or similar inability, the chauffeur may recover pay for what he has done on a quantum meruit}'^ It must not be forgotten that the contract between the chauffeur and his employer is mutual. The employer has a claim against the chauffeur for neglect of duty, and the em- ployer does not waive this claim by paying the chauffeur and continuing him in his service.'" ordinance, therofore, is prima fade evidence of negligence to be submitted to the jury in connection with the other facts in the case to determine the ultimate liability." Austin v. Roches- ter Folding Box Co., Ill Misc. (N. Y.) 292, 181 N. Y. Suppl. 275. 39. Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701, distinguishing prior cases holding the operator of an unregistered auto- mobile a trespasser, by reason of a dif- ference in the provisions of the statute, it being held that the provisions under which the earlier cases were decided made the operation of an unregistered automobile upon the highway unlaw- ful in every respect while in this case the operation of the automobile itself was not objectionable, the illegal ele- ment in the act being the failure to have a license. This decision was fol- lowed in Conroy v. Mather, 217 Mass. 91, 104 N. E. 487, 52 L. R. A. (N. S.) 801; Holden v. McGillicuddy, 215 Mass. 563, 102 N. E. 923; Holland v. City of Boston, 213 Mass. 560, 100 N. E. 1009. See also Rolli v. Converse, 227 Mass. 162, 116 N. E. 507; Pobnatier v. New- bury, 231 Mass. 307, 120 N. E. 850; Griffin v, Hustis (Mass.), 125 N. E. 387. 40. Blanchard v. City of Portland (Me.). 113 Atl. 18. 41. Section 725. 42. Parsons on Contracts, vol. II (9th Ed.), 34. 43. Parsons on Contracts, vol. II (9th Ed.), 36-40. 44. Parsons on Contracts, vol. II (9th Ed.), 48. Chauffeurs. 257 Sec. 228. Liability of master for injury to chauffeur. The circumstances may be siu-li that a chaulTeui- receiving injuries from the care or operation of a motor vehicle may recover damages from his employer. But, except in the cases covered by Workmen's Compensation Laws, the basis of the servant's action is the negligence of the master."^ Where the engine "kicks back" while he is cranking the car, and it is shown that the act of the owner in moving the spark lever contributed to that result, a recovery may be had. But, if no negligence on the part of the owner is connected with the "kick back" of the engine, there can be no recovery under the common law system.''^ When an injury is received while running a motor vehicle and the cause of the injury is a de- fective brake, a chauffeur having knowledge of the defect should not be permitted to recover.''' But, if the owner has knowledge of the defective brake and gives the chauffeur no information in respect thereto, the owner may be liable for injuries received by the servant on account of the defect.*^ But the owner is under no obligation to warn his chauffeur of dangers which are obvious, nor to instruct him in matters which he may fairly be supposed to understand.*'^ Where the servant was riding in the machine at the request of the ov/ner who was driving the same, the servant may be permitted to recover if the owner negligently runs the machine, and the questions of the servant's assumption of risk and contribu- 45. Anderson v. Van Riper, 128 N. i le arc in the streets at all hours of Y. Suppl. 66. ^le day and night, an experienced Negligence of chauffeur causing in- chauffeur, unless it be under excetp- jury to employee riding in machine. tional circumstances, who runs an au- See Burke v. Curtis Aeroplane Motor t-.raobile in the street knowing that the Co. (Ala.), 85 So. 703. brake is defective, ought to be estopped 46. Morris v. Allen. 217 Mass. 572, as matter of law from recovering dam- 105 N. E. 364; Godley v. Gowen, 89 ages against his employer for injuries Wash. 124, 154 Pac. 141; Keller v. occasioned by such defect." See also Blurton (Mo. App.), 183 S. W. 710; Pierce v. Morrill Bros. Co., 116 Me. Card V. Turner Center Dairying As- 517, 102 Atl. 230. 80C.. 224 Ma.ss. 525, 113 N. E. 187. 48. Granini v. Cerini, 273 Wash. 687, 47. Marks v. Stoltz, 165 N. Y. App. 171 Pac. 1007. Div. 462, 150 N. Y. Suppl. 952. where- 49. Plasikowski v. Arbus, 93 Conn, in it was said: "In a populous city 556, 103 Atl. 642. l:ke New York, where thousands of peo- 17 258 The Law of Automobiles. tory negligence are for the jury.^*^ And where a chauffeur receives injury in consequence of a defect in the iron retain- ing ring so that a tire blows out when it is being pumped, the question of the assumption of risk is for the jury when the evidence is conflicting as to whether the o^vner had knowledge of the defect and had promised to correct it.^^ And, when in- juries are received by the servant on account of defective tools furnished by the master, the liability may be a question for the jury. ^^ Workmen's Compensation Laws, which have been generally enacted since the collapse of the common law rules as to per- sonal injuries received by employees, have revolutionized the old system.^ A chauffeur who is injured, however, because he is exceeding the speed limit fixed by statute, is guilty of 50. Patterson v. Adan, 119 Minn. 283, 137 N. W. 1112, wherein the court said: "Whether plaintiff directly con tributed to his injury or assumed the risk were, on the evidence presented, questions of fact and properly sub- mitted to the jury. It is claimed by defendant that he was intoxicated at the time, a fact known to plaintiff, and that plaintiff took the chances of a safe passage to Minneapolis, and cannot now complain. It may be conceded for the purposes of the case that defendant was somewhat under the influence of liquor, and that plaintiff knew it. But from that it does not necessarily follow as a matter of law, that plaintiff was guilty of contributory negligence or that he assumed the risk of injury by complying with defendant's order and direction to accompany him in the au- tomobile to Minneapolis. The relation of master and servant existed between the parties. Plaintiff was the servant, and, unless defendant was so badly in- toxicated as to be incapable of properly running the car, plaintiff's duty, as such servant, was to obey the order of the master. The defendant, the master, is in no vorj^ favorable situation to resist liability under such circumstances, or to be heard to complain that the ser- vant obeyed his orders. There is no claim that defendant was not compe- tent to' drive the car; the only pvoint made is with reference to his intoxi- cated condition which, it is claimed, in- capacitated him for the time being properly to operate the car." 51. Richardson v. Flower, 248 Pa. St. 35, 93 Atl. 777. 52. Ridley v. Portland Taxicab Co., 90 Oreg. 529, 177 Pac. 429. 53. California. — George Eastman Co. V. Industrial Ace. Com.. 200 Pac. 17. Illinois. — See F. W. Hochspeier, Inc. v. Industrial Board of Illinois, 278 111. 523, 116 N. E. 121. Iowa. — Herbig v. Walton Auto Co., 182 Pac. 204. Louisiana. — Haddad v. Commercial Motor Truck Co., 146 La. — , 84 So. 197. MicJiigan. — Schanning v. Standard Castings Co., 203 Mich. 612, 169 N. W. 879. Minnesota. — Hansen v. Northwestern Fuel Co., 174 K W. 726. New Jersey. — Newcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. 928. Pennsylvania. — Siglin v. Armour & Co., 261 Pa. 30, 103 Atl. 991. Chauffeurs. 259 'Svilful niiscoiiduct" which may bar a recovery under com- pensation statutes.^* And the fact that it was the custom of chauffeurs to run their machines at such speed, does not change the rule.^^ A policeman may he a public officer, not an employee, of a numicipality and may thus be without the pro- tection of a compensation statute.^'^ So, too, a teacher in the automobile department of a city vocational school may not be such an employee of the city as would be entitled to receive compensation." To receive compensation it must appear tliat the relation of master and servant existed between the par- ties i'^^ and there may arise a question whether the particular injury which was received by the chauffeur arose out of his employment.^^ The statutes of some States justify a distinc- 54. Fidelity & Deposit Co. v. Indus- trial Ace. Com., 171 Cal. 728, 154 Pac. 834. See also U. S. Fidelity & Guar- anty Co. V. Industrial Accident Com., 183 Pac. 540. 55. Fidelity ioarding a tiuck to ride homeward. Diaz v. War- ren Bros. Co. (Conn.). Ill Atl. 206. 260 The Law of Automobiles. tion between a chauffeur engaged in domestic service for the owner, such as caring for the machine, and a chauffeur en- gaged in running a truck as a matter of his employer's busi- ness. The Workmen's Compensation Acts in some States do not cover injuries received by servants engaged in domestic service.^*^ Sec. 229. Liability of chauffeur to owner. If the owner of a motor vehicle is injured, physically or financially, by reason of the wrongful or negligent conduct of his chauffeur, he may have a remedy against such chauf- feur.^i Thus, if one injured by the negligence of the chauf- feur recovers a judgment against the owner, the latter will have a right of action against the chauffeur to recover the amount of the judgment.^^ ^ut, where the chauffeur's wife wrongfully takes the machine and it was thereby damaged, the husband and community property are not generally liable.«3 Pitman during automobile race. — See Frint Motor Car Co. v. General Ac- cident, etc. Corp. (Wis.), 180 N. W. 121. Servant driving own car. — A person employed at a factory to drive an au- tcmO'bile truck during the week and to guard the premises on Sundays who used an automobile of his own on Sun- day to go and get spark plugs which were necessary for the operation of his master's truck and who while crank- ing his own motor was injured by a back-fire, was at the time engaged in Ids master's business and was working to the master's advantage, and, hence, is entitled to an award under the Workmen's Compensation Law. Mar- tin V. Card &. Co.. 193 N. Y. App. r)iv. 7. 60. Wincheski v. Morris, 179 N. Y. App. Div. 600, 166 N. Y. Suppl. 873. 61. King V. Cline (Cal. App.), 194 Pac. 290. 62. Huey v. Dykes (Ala.), 82 So. 481. 63. Killingsworth v. Keen, 89 Wash. 597, 154 Pac. 1096. Miscellaneous Subjects of Regulation. 261 CHAPTER XIII. MISCELLANEOUS SUBJECTS OF REGULATION. Sbction 230. Speed. 231. Exclusion from highways. 232. KcBtriction to certain streets. 233. Identification of machines. 234. Obstruction of streets. 235. Advertising on public vehicles. 236. Law of road. 237. Smoke and odors. 238. Liability for injuries. 239. Taxation. 240. Service of process on automobilist. Sec. 230. Speed. The speed with which motor vehicles may be operated along the public highways is certainly a proper subject of regula- tion ^ The Legislature, so long as it acts within constitutional limitations, may fix such rate of speed as seems wise.== And municipal corporations, unless restricted by statutory or con- stitutional provisions, may pass regulations forbidding un- reasonable rates of speed.^ But, in some jurisdictions, the 1. See also, as to speed regulations, Ma^sachusetU.- Commonwealth v.^ 303-325, 728-743. Crowninshield, 187 Ma.B. 221 72 N^ 8 Ex parte Daniels (Cal.). 192 Pac. E. 963; Commonwealth v. Tyler, 199 443; Ex parte Smith, 26 Cal. App. 116, Mass. 490. 85 N. E. 569. 146 Pao. 82; Christy v. Elliott, 216 111. Michigan.- Brennan v. Connolly 31, 1 L. R. A. (N. S.) 215, 74 N. E. (Mich.), 173 N. W. 511 1035, 3 Ann. Oas. 487, 108 Am. St. Rep. Mmo«ri._Roper V;^ Greenspon, 273 196; Hartze v. Moxley, 235 111. 164. Mo. 288, 198 S. W. 1107; L. B^ A. 1918 85 N. E. 216; People v. Beak (111.), 126 D. 126; City of St. Louis v. Hammond N E. 201; Schaar v. Comforth, 128 (Mo.), 199 S. W. 411; City of Windsor Minn. 460, 151 N. W. 275. And see v. Bast (Mo. App), 199 S. W^723. chapter V, as to regulation in general. .Yebra^fca-Christensen v. Tate, 87 Z Alalima-A^ v. Martin, 179 Neb. 848, 128 N. W 632. Ala. App. 97, 59 So. 597; Hood & 2^.,« yorfc.-P^ple v. Ih^^er, .36 N. Wheeler Furniture Co. v. Royal, 200 V. Suppl. 148; People v. Bell, .48 N. Ala. 607, 76 So. 965. ^'- Suppl- 753. Geor^.-Columbus R Co. v. Wal- Orejon.-Everart v. Fischer, 75 ler, 12 Ga App. 674, 78 S. E. 52. Or.g. 316. 145 Pac. 33^ 7«i„.«.-<5.ioago V. Shaw Livery And see chapter VI, as to .nunxcl. Co.. 258 111. 409, 101 N. W. 588. P«vl reflation "^ genera /;t«..-Pilgrim v. Brown. 168 Iowa, " Riding " or ' drmng.' -On who « 177, 150 N. W. 1. controlling the motive power of an au- 262 The Law of Automobiles. State has reserved to itself the full power of legislating- with reference to the speed of automobiles, and in such jurisdic- tions local regulations may be ineffective/ On the other hand, constitutional provisions in some States may lodge the power of regulating the speed of motor vehicles with local municipalities and forbid the enactment by the Legislature of a rule mth reference to the speed within municipal corpora- tions.^ An ordinance is not unreasonable because it restricts the speed to six or seven,^ or even three ' miles an hour under given circmiistances. Or the driver of an automobile may be required to bring his machine to a stop when he is passing a street which is receiving or discharging passengers.^ A stat- ute providing that no person shall operate a motor vehicle at a rate of speed greater than is reasonable, or so as to en- danger property or the life or limb of any person, provided, that in passing from a side street into a main thoroughfare where persons or vehicles are not plainly discernible, a per- son operating such vehicle shall have it under perfect control, and the rate of speed shall not exceed a mile in eight minutes, or on any street or highway exceed twenty-five miles per hour, is proper.^ And a regulation is not invalid because it lomobile may be said to be driving it speed of twenty miles an hour outside within the meaning of a rule by a oi cities and boroughs. Radnor Tp. v. board of park commissioners, that no Bell, 27 Pa. Super. Ct. 1. person shall "ride" or "drive" in a cer- 4. City of Chicago v. Kluever, 257 tain parkway at a rate of speed ex- 111. 317, 100 N. E. 917; City of Seattle eeeding eight miles an hour. Common- v. Rothweiler, 101 Wash. 680, 172 Pac. wealth V. Crowninshield, 187 Mas-. 221, 825; Peck v. O'Gilvie, 13 R. L. N. S. 72 N. E. 963, 68 'L. R. A. 245. (Canada) 54, 31 Pueb. S. C. 227. Speed at crossing. — 'In a city ordi- 5. Kalicli v. Knapp, 73 Oreg. 558, nance limiting the speed of automo- 112 Pac. 594, 145 Pac. 22. Idles on "streets" of city and at "cross- 6. Chittenden v. Columbus, 26 Ohio ings," the word "crossings'" refers to Cir. Rep. 531; Eichman v. Buchheit, street crossings. Eicbman v. Buchheit, J28 Wis. 385, 107 N. W. 325. 3 Ann. 128 Wis. 385, 107 N. W. 325. Cas. 435. In Pennsylvania a township of the 7. Columbus R. Co. v. Waller. 12 Ga. first class has the power, under the App. 674, 78 S. E. 52. Act of April 18, 1899, P. L. 104, to 8. Schell v. DuBois, 94 Oliio St. 93, pass an ordinance fixing the maximum 113 N. E. 664. And see sections 423- speed of motor cars at ten miles an 428. };our, and the power is not suspended 9. State v. Waterman, 112 Minn. l,y Act of April 23. 1903, P. L. 268, 157, 130 N. W. 972. Compare Carter which allows motor cars a maximum v. State, 12 Ga. App. 430, 78 S. E. Miscellaneous Subjects of Regulation. 263 applies merely to motor vehicles or periiiii> other convey- ances to go at a faster rate;^« nor because it attempts to pre- scribe what shall be presumptive evidence in the courts.^^ Sec. 231. Exclusion from highways. Highways are designed for the common use of all travelers, regardless of the means of conveyance which is used, and it is thought to be beyond the power of State or municipal au- thorities to forbid the use of highways to a certain class of vehicles, such as automobiles.^- Within the police power of regulation, a municipality may in some cases forbid the use of certain motor vehicles on certain streets,^^ ])^^t it cannot make a broad exclusion of all motor vehicles from all streets.^* Motor vehicles may, however, be excluded from the highways until their owners have complied with regulations relative to the registration and licensing thereof.^^ Or trucks of exces- sive weight mav properly be excluded from the streets.^- And it has been held that a county may pass a regulation prohibit- ing the running of automobiles on any of the highways of the county between the hours of sunset of any day and of the sun- rise on the following day.^« The power of regulation over jitneys and motor vehicles used for hire may be somewhat more extensive than over motor vehicles used for the pleasure or business purposes of the owner." 205- Haves v. State. 11 Ga. App. 371. the public highways of this Province 75 S E "523 'i^'^fl ^o ^ within the power of the leg- \t'is a question for the jury what iflature of Prince Edward Island to en^ i. reasonable under such a statute. act. /. re Rogers (Pr. Ed. Inland) . 7 Pvaybourn v. Phillips, 160 ^lo. App. East. L. K. 212. 53i, 140 S. W. 977. 13. Section 233. ,, ^ . . „ 10. Ex parte Snowden. 12 Cal. App. 14. Ex parte Snowden. 12 Cal. App. 521 107 Pac. 724; Chittenden v. Co- 521, 107 Pac. 724: Walker v. Common- lumbus, 26 Ohio Oir. Rep. 531. And wealth, 40 Pa. Super. Ct. 638. ^^.^^ go 15. Compare Chicago v. Banker, 112 '''irYoung"v. Dunlap. 195 Mo. App. 111. App. 94; Matter of Automobile 119. 190 S. W. 1041. Acts. 15 Pa. Dist. Rep. 83. And see 12. See Sumner County V. Interurban section 104. Transp. Co., 141 Tenn. 493, 213 P. W. 15a. White v. Turner (\^ash.). 195 412, 5 A. L. R. 765. P«^- 240. _^ Statute Prince Edward Island.-8 16. Ex parte Berry, 14, ( al. n.. 8- Edw. VIT. ch. 13, entitled "An Act to Pac. 44. . . x x „^«i prohibit tbo uso of motor vehiclos upon 17. '"The right of a c.t.zcn to travel 264 The Law of Automobiles. Sec. 232. Restriction to certain streets. In the regulation of traffic along municipal highways, ordi- nances may be passed excluding certain motor vehicles from specified streets. The power of excluding vehicles from cer- tain streets is exercised more particularly mth reference to the running of jitneys.^* But, within reasonaible limits, the police power lodged in the State and municipal divisions per- mits them to close certain streets to the use of business and pleasure automobiles, though they are not used for hire.^^ upon a highway and transport his prop- erty 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 for- mer is the usual and ordinary right of the citizen, a common right, a right common to all; while the latter is spe- cial, unusual and extraordinary. As to the former, the extent of the legisla- tive power is that of regulation; but, as to the latter, its power is broader. ITie right may be wholly denied, or it may be permitte Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513; People ex rel. Cavanaugh v. Waldo, 72 Misc. (N. Y.) 416, 131 N. Y. Suppl. 307: Strauss v. Enright, 105 Misc. 367: "The question presented is this: 'Is the ordinance of the town of Eden, passed under express legislative au- thority, closing to the use of automo- biles certain public streets in said town, constitutional?' The coiiteiition of the defendant is that it violates the Fourteenth Amendment of the Consti- tution of the United States, which de- clares, among other things, that no State shall 'deny to any person within its jurisdiction, the equal protection of the law-s,' and that it also denies him that equality of right guaranteed un- der section 1, art. 1, of the Constitu- tion of Maine, 'of enjoying and de- fending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.' It is the equal right of all to use the public streets for pur- poses of travel, by proper means, and with due regard for the corresponding rights of others; and it is also too well recognized in judicial decisions to be questioned that an automobile is a legitimate means of conveyance on the public highways. But the right to so use the public streets, as well as all personal and property rights, is not an absolute and unqualified right. It is subject to be limited and controlled by tlie sovereign authority, the State, wherever necessary to provide for and promote the safety, peace, health, morals and general welfare of the peo- ple. To secure these and kindred bene- fits is the purpose of organized govern- ment, and to that end may the power ot the State, called its police power, be itsed. By the exercise of that power, tlirou^h legislative enactments, indi- \ iduals may be subjected to restraints, and the enjoyment of personal and property rights may be limited, or even Miscellaneous Subjects of Regulation. 265 Thus, in one case,^^ it was said: "It seems too plain for dis- cussion that, with a view to the safety of the public, the Legis- lature may pass laws regulating the speed of such machines (automobiles) when running upon the highways. The same principle is applicable to a determination by the Legislature that there are some streets and ways on which such machines should not be allowed at all. In some parts of the State where prevented, if manifestly necessary to develop the resources of the State, im prove its industrial conditions, and se- cure and advance the safety, comfort and prosperity of its people. . ■ • That reasoable regulations for the safety of the people while using the public streets are clearly within this police power of the State is too plain to admit of discussion. . • • The defendant, however, objects against the validity of the ordinance in question here, that it applies to automobiles only, and not to all other vehicles that use those streets. He contends that it 'operates against a class only' atid is therefore special legislation which the Constitution inhibits. That contention cannot prevail. This same objection to the constitutionality of statutes and ordinances regulating the use of auto- mobiles, that they apply only to one particular class of vehicles, has been repeatedly raised in recent cases and as repeatedly decided to be without merit. . • • The ordinance in ques tion is general and not special, for it applies equally to all automobiles with- out discrimination, wherever or by whomsoever owned. The streets in question are closed to all automobiles without any distinctions. . • • This enactment which authorized the clos- ing to the use of automobiles of the streets in question, we do not find to be repugnant to any constitutional pro- vision. In making it the legislature decided that the regulation was neces- sary and reasonable in order to secure the public safety and welfare, and it cannot be aflfirmod that such will not 1)0 its effect. The regulation is clearly within the police power of the legisla- ture to enact, its manifest tendency and effect is to accomplish the purpose for which "it was intended and accord- i Italy its reasonableness and expediency cannot Iw reviewed by the court. The judgment of tlie legislature in that re- spect is conclusive." Stat* v. Mayo, 106 Me. 62, 75 Atl. 295, 20 Ann. Caa- 512, 26 L. R. A. (N. S.) 502n. Parks.— In l^ew York a statute au- thorizing the commissioner of parks of the borough of Brooklyn and Queens '•in his discretion, by rules and regula- tions, to restrict the use and occupation of tlte main drive of Ocean boulevard, in the borough of Brooklyn, Twenty- Second avenue to Kings highway, to horses and light carriages and to ex- clude therefrom vehicles of all other kinds, including bicycles and motor ve- hicles," has been held to be valid legis- lation. People ex rel. Cavanagh v. Waldo, 72 Misc. R. (N. Y.) 416, 131 X. Y. Suppl. 307. Discrimination.— A regulation per mitting pleasure ears but excluding business machines from a certain street, may constitute an illegal dis- crimination. Clausen v. De Medina, 82 N. J. L. 491, 81 Atl. 924. Unreasonable.— An ordinancce for- bidding certain streets to the use of jitneys may be so unreasonable that it will not be enforced. Curry v. Osborne, 79 Fla. 39, 79 So. 293, 6 A. L. R. 108. 20. Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513. 266 The Law of Automobiles. there is but little travel public necessity and convenience have required the construction of ways which are steep and narrow, over which it might be difficult to run an automobile, and where it would be very dangerous for the occupants if auto- mobiles were used upon them. In such places it might be much more dangerous for travelers vdth. horses and with vehicles of other kinds if automobiles were allowed there. No one has a right to use the public streets and public places as he chooses, without regard to the safety of other persons who are rightly there. In choosing his vehicle, everyone must con- sider whether it is of a kind which mil put in peril those using the streets differently in a reasonable way. In parks and cemeteries and i3rivate grounds, where narrow roads with precipitous banks are sometimes constructed for carriages drawn by horses, it has been a common practice to exclude automobiles altogether, chiefly because of the danger of their frightening horses. The right of the Legislature, acting under the police power, to prescribe that automobiles shall not pass over certain streets as public ways in a city or town, seems to us well established both upon principle and authority." Sec. 233. Identification of machines. In the absence of statute restricting the power of municii)al corporations, a city would no doubt have the power to require motor vehicles to carry munber plates for their identification.^^ But, when the Legislature has enacted a system for the regis- tration and licensing of motor vehicles and has passed an act providing that owners of motor vehicles shall not be required to display any other number than the number of the registra- tion issued by the State authorities, a city cannot require an additional identification plate.^^ Sec. 234. Obstruction of streets. A municipality has the power to make reasonal^le regula- tions so as to avoid obstructions in the streets.^ For example, 21. Slade v. City of Chicago. 1 111. J 11. 3,31. 104 X. E. 662. Cir. Ct. Rep. 520. And see section 124. 23. City of Dnluth v. Easterly, 115 22. City of Cliicago v. Francis. 262 Afinn. 64. 131 X. W. 701; Beck v. Cox, Miscellaneous Subjects of Regulatiox. '267 taxicabs and vehicles used for hire may be refused the privi- lege of leaving their machines at certain places in the streets where their presence would constitute more or less of an ob- struction to the free use of the streets by other travelers.^' And a municipality may properly pass a regulation forbidding the leaving of a vehicle standing on the street elsewhere than on the right-hand side thereof with reference to the direction in which it fronts.^^ And the "parking" of cars on certain streets may be prohibited.^^ Even the right of an owner to keep his machine in front of his o-wn place of business may be limited by nmnicipal regulations." Thus, in one case in- 77 W. Va. 442, 87 S. E. 492. "We have these propositions established so far as the city and the general public are concerned: That the public streets of a city are dedicated to public use, and are a public way from 'side to side and end to end.' and that any pri- vate use thereof which in any way de- tracts from or hinders or prevents its free use as a public way to its full ex- tent, is within the meaning of the law, an obstruction or incumbrance, and any obstruction or incumbiance for private purposes is in law a nuisance; that the city is given the exclusive care and control of the streets, and it is made its duty to keep them open and in repair and free from nuisance; that the primary use or purpose for which streets are established is to afford the general traveling public a way of passage or travel, and the gen- eral traveling public are invested with the right to have them in repair and free from nuisance, that this right may be enjoyed." Pugh v. City of Des Moines, 176 Iowa, 593, 156 N. W. 892. 24. See sections 160-162. 25. Beck v. Cox, 77 W. Va. 442, 87 S. E. 492, wherein it was said: "The projection of high-speed automatic ve- hicles into the streets of cities and towns, among horses, wagons, carts, carriages, and pedestrians, and an enormous increase of the use of the liigliways, particularly of the paved streets, for purposes of pleasure, with- out further regulations tlian those prescribed for highways in general, is an obvious source of danger to the per- sons riiul property of citizens, falling witliin the express terms of the power delegated to municipal corporations and not withdrawn by any express terms of the act in question, nor abro- gated by implication arising from its terms or general scope and purpose. xMunicipal j^wer, expressly conferred, to keep the streets free from obstruc- tion amply covers the subject of stand- irig vehicles. It would be absurd and ridiculous to say there is not power under the statute to prevent a citizen from leaving his vehicle standing across the middle of a street, or a num- ber of citizens from completely stopping travel on a street by massing tlieir ve- hicles over its entire width." 26. Sanders v. City of Atlanta. 147 Ga. 819, 95 S. E. 695; Pugh v. City of Des Moines, 176 Iowa, 593, 156 X. W. 892. See also. People v. Harden. 110 Misc. (X. Y.) 72, 179 X. Y. Suppl. 732. 27. Discrimination. -A 'nuuiicipality cannot forbid one person from main- taining a gasoline tank and pump in front of his place of business, while permitting his competitor to do so. Kenney v. Village of Dorchester. 101 Xeb. 425. 163 X. W. 762. 268 The Law of Automobiles. volving the prosecution of an owner for obstructing a street in front of his place of business mth an automobile, it was said : "No hard and fast rule can be laid down as to what in every case will constitute an obstructing or incumbering of a street by an automobile or other vehicle, within the purview of the ordinance here in question. The time and place of an alleged obstruction and the kind of vehicle must be taken into consideration in each particular case. The stopping tem- porarily and for a reasonable time of an automobile in a pub- lic street for the convenience of the owner is not a violation of the ordinance; but he cannot lawfully use the street as a garage or for a taxicab stand, contrary to reasonable police regulations. The evidence in this case, in view of the time, place, and manner of the obstruction, is ample to sustain con- viction of the defendant, "^^ Sec. 235. Advertising on public vehicles. The United States Supreme Court has sustained an ordi- nance of the city of New^ York prohibiting "advertising trucks, vans or wagons," except the putting of business notices upon ordinary business wagons, so long as such wagons are engaged in the usual business or work of the owner and not used merely or mainly for advertising.^ Sec. 236. Law of road. It is clear that the State or a municipal division thereof may pass suitable regulations relative to the law of the road.^° Thus, a city ordinance requiring that drivers of vehicles, when making a turn, shall give a signal with a whip or hand as to the direction in which the turn shall be made, is valid and en- 28. City of Duluth v. Easterly, 115 W. 681, 8 A. L. R. 690; Johnson Oil Minn. 64, 131 N. W. 791. Refining Co. v. Galesburg, etc. Power 29. Fifth Ave. Coach Co. v. New Co., 200 111. App. 392; State v. Larra- York City, 221 U. S. 467, 31 S. Ct. bee, 104 Minn. 37, 115 N. W. 948; Kel- 709, affirming 194 N. Y. 19, 86 N. E. ley v. James, 37 S. Dak. 272, 157 N. 824. W. 990; City of Oshkosh v. Campbell, 50. Pemberton v. Amy (Cal. App.), 151 Wis. 567, 139 N. W. 316; Sutter v. 183 Pac. 356, affirmed 182 Pac. 964; Milwaukee Board of Underwriters, 164 Seager v Foster. 185 Iowa, 132, 169 N. Wi.s. 532, 166 N. W. 57. Miscellaneous Subjects of Regulation. 269 forceable.^^ Or a municipality is justified in the case of nar- row streets in selecting certain streets as ** one-way" streets.^^* But a regulation cannot be enforced which requires a motor vehicle driver to obey all directions of police officers.^- The Legislature, except possibly in a few jurisdictions where constitutional provisions prohibit, may reserve to itself full power over the law of the road; but statutes which merely prohibit municipalities from regulating motor vehicles do not have the effect of depriving them of enacting ordinances in relation to the law of the road.^^ And municipalities generally have the power to adopt regulations regulating the conduct of motor drivers under circumstances which are not covered by the State statute,^ or to make additional regulations in furtherance of the purpose of the general law as may seem fit and appropriate to the necessities of a particular locality .^^* A statute giving motorcycles the same rights on the streets as are given to other persons, does not abridge the power of the municipality from legislating with reference to the law See chapter XIV, as to Laws of the Koad. "It is the universal custom for cities to prescribe the course which streams of traffic shall take. This or- dinance supplanted the ordinary gen- eral law of the road, which would gov- ern in the absence of such ordinance and in districts to which the ordinance would not apply. The necessity for such particular provisions has been emphasized, as the use of automobiles in large numbers has become more gen- eral. Motomeers of street cars, chauf- feurs, drivers of ordinary vehicles and of emergency vehicles, like amibulances, fire engines, and the like, and pedes- trians, depend not only for the cer- tainty of their movements, but for their safety, upon the enforcement of such ordinances. The ordinance in question is along the lino of the so- called 'gyratory movement of traffic,' which is quite generally regarded as the most intelligent solution of tlie problem. Of course, the necessity or propriety of a strict enforcement of such an ordinance must depend largely upon the extent of travel at a particu- lar time and place. It is not, however, for individuals, but for the public au- thorities, to determine that question. Otherwise confusion and danger would result." State v. Larrabee, 104 Minij. 37, 115 N. W. 948. 31. Johnson Oil Refining Co. v. Galesburg, etc. Power Co., 200 111. App. 392. 31a. Commonwealth v. Nolan (Ky. ), 224 S. VV. 506. 32. City of St. Louis v. Allen, 275 Mo. 501, 204 S. W. 1083. 33. Kolankiewiis v. Burke, 91 N. J. L. 567, 103 Atl. 249; Kelley v. James, 37 S. Dak. 272, 157 N. W. 990. -ind see sections 72, 77. 34. Bruce v. Ryan, 138 Minn. 264, 164 N. W. 982; Freeman v. Green (Mo. App.). 186 S. W. 1166. 34a. Mann v. Scott (Cal.). 1S2 Pac. 281. 270 The Law of Automobiles. of the road so as to preclude an ordinance giving the right of waj' to a fire patrol.* Sec. 237. Smoke and odors. That the emission of offensive smoke from antomobiles, es- pecially in cities and inhabited districts, is a nuisance cannot be disputed. The accompanying odor is not pleasant and may possibly be injurious, if it is constantly present, either to health or vegetation in the parks or country. The detrimental effect upon persons and plant life has not as yet been authori- tatively determined, although in France it has 'been claimed that the fumes coming from the exhausts of automobiles in- jured the growth of vegetation along the boulevards. Whether this be true or not, the fact that the smoke is offensively un- pleasant warrants legislative regulation of the matter. Nuis- ances have from time to time immemorial been subject to legal control, and the mere fact that conduct is unpleasant, irrespective of injury to either health or propert}', has con- stituted cause for controlling it either b}' legislation or action of the courts. Thus noise may be controlled and unwholesome stenches may be enjoined. It is a matter of record that the courts have issued as man}' injunctions against the emission of gases from manufacturing establishments which injured vegetation as against any other kind of nuisance. The smoke nuisance resulting from the improper handling of automo- biles is on a par with gas nuisances generally, and legislative action is not only proper but legally warranted. Thus, an ordinance regulative of this nuisance has been sus- tained.^*^ In England the law prohibits the emission of offen- sive smoke or odors from automobiles, and several automobile drivers have 'been prosecuted and fined for violating the law,^' 35. Sutter v. Milwaukee Board of Omnibus Co., London (Limited), v. Underwriters. 1fi4 Wi^. 532, 166 K W. Tagg (Div. €t.), 57. In England it has been decided that 36. Chicago v. Shaw Livery Co.. 258 where the emission of smoke from a 111. 409, 101 N. E. 588, motor car is due to carelessness that 37. For an English case concerning does not prevent the car from coming prosecutions for the smoke nuisance within the provisions of § 1 of the caused bv an automobile. See Star Ix>comotive3 on Hiorhwavs Act of 1896 MiSCKLLANEOUS SUBJECTS OF REGULATION. 271 and in the I nited States of recent years considerable atten- tion has been given to this subject by local legislative lK)dies. Sec. 238. Liability for injuries. It is l)eyond the legislative power to enact a statute impos- ing lial)ility on the owner of a motor vehicle for injuries oc- casioned from the negligent operation thereof, when the ma- chine is not operated by the owner but by a trespasser obtain- ing possession thereof.'* Such legislation is unconstitutional as depriving one of his proj^erty without due process of law. But a statute providing that Avlien one has received injuries from the negligent operation of a motor vehicle, his damages shall be a lien on the machine, next in priority to the lien of State and county taxes, and thus prior to a chattel mortgage on the machine, has been sustained. ^^ Sec. 239. Taxation. The form of taxation which is generally imposed on motor vehicles is that of license fees, and such form of taxation is discussed in another chapter of this work.**' Taxes or license fees are in a few States also imposed on dealers in motor providing that, "Tlie enactments men- IM S. l". 8.'J8. And see Merchants & tioned in the schedule to this Act and Phuiters' Bank v. Brigman, 106 S. Car. any other enactments restricting the '.'.0,2. 91 S. E. 332, wheroin it was said: use of locomotives on highways and 'The legislature had the right in the contained in any public, general, or exercise of police power to guard its local and personal Act in force at the citizens and the public generally by passage of this Act, shall not apply to passing a law in a measure that pro- any vehicle propelled by mechanical tects them from negligence, cs^reless- power if it is under three tons weight ness, and recklessness of persons driv- unladen and is not used for the pur- ing dangerous machines, and the pro pose of drawing more than one ve- viso making the machine that inflicted hide, . . . and is so constructed tlie injury liable for the damages and that no smoke or visible vajwr is providing attachment of the same is emitted therefrom except from any not taking property without due pro- temporary or accidental cause.'" Rex cess of law, but is passed in the best V. Wilhaham (K. B. Div.), 96 Law T. iiiterest of the public. The act of the R. (N. S.) 712. hgislature only gives the right to make 38. Daugherty v. Thomas. 174 Mich. the macliine liable, and not tlie owner 371, 140 N. W. 615, 45 L. E. A. (N. S.) of tlio macliine unless tlie owner was in 699, Ann. Cas. 1915 A. 1163. And sec the machine." section 626. 40. Chapter VIII. 39. Matter of .\Ul\idilfii (S. Car.). 272 The Law of Automobiles. vehicles or on sales made by them/^ The fee which may be imposed by a State or municipal corporation for the use of the highways by motor vehicles, is classed as a privilege tax rather than as a property tax.''^ But a tax may also be im- posed on the vehicle as property, and the fact that the owner is also compelled to pay a license fee for its use does not afford complaint on the ground of double taxation.''^ But there is generally no constitutional objection to a statute which imposes the license fee and then exempts the owner of the vehicle from other taxation on the machine.''* ' ' The ques- tion as to what classes of property shall be taxed and what shall be exempted, except as restricted by the Constitution, is one which rests within the discretion of the Legislature."*^ And an ordinance relative to a tax on vehicles may cover cer- tain vehicles, and exclude from its operation electric street cars and automobiles.*^ And, so, too, vehicles of non-residents who habitually use the streets may be excluded from the opera- 41. Sections 873, 874. 42. Hudgens v. State, 15 Ala. App. 156, 72 So. 605; Jasnowski v. Board of Assessors of City of Detroit, 191 Mich. 287, 157 N. W. 891; Ex parte Phillips (Okla.), 167 Pac. 221. And see sec- tion 94. 43. Harder's Storage & Van Co. v. Chicago, 235 111. 58. 85 N. E. 245; State V. Jarvis, 89 Vt. 239, 95 Atl. 541. "The law is well settled that the owner of vehicles used upon the public streets and highways may be required to pay an ad 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 prop- erty. The subject of the other taxa- tion is a right or privilege — an entirely distinct and different thing. Because these things are distinct and different the two taxes do not constitute double taxation." Harder's Storage & Van Co. T. Chicago, 235 111. 58, 85 N. E. 245. 44. Jasnowski v. Board of Assessora of City of Detroit, 191 Mich. 287, 157 N W. 891; State ex rel. City of Fargo V. Wetz (N. Dak.), 168 N. W. 835, 5 A. L. R. 731; Ex parte Shaw (Okla.), 157 Pae. 900. "It is within the power of the legislature to exempt from other forms of taxation property which pays a specific tax, and this is true whether the specific tax is levied upon the prop- erty itself or upon the right to use the property in a certain way." Jasnowski V Board of Assessors of City of De- troit, 191 Mich. 287, 157 N. W. 891. 45. Jasnowski v. Board of Assessors of dty of Detroit, 191 Mich. 287, 157 N. W. 891. Vehicle of school district. — Wliere an automobile is owned by a school dis- trict, and such machines are not within the class of exemptions, it may be taxed. Newark Public Schools v. Wright, 4 Boyce (Del.) 279, 88 Atl. 462. 46. Kersey v. City of Terre Haute, 161 Ind. 471, 68 N. E. 1027. Miscellaneous Subjects of Regulation. 273 tion of such an ordinance without impairing its validity.''' Vehicles in transit from one State to another are exempt from State taxation on account of the interstate commerce nature of the transaction, but this does not forbid State authorities from assessing vehicles stored for an indefinite time in the State pending transportation.** Sec. 240. Service of process on automobilist. A statute providing that, in actions for damages against the owners of motor vehicles, service of process may be had in a county other than the one where the injury was occasioned and the suit was brought, is constitutional.'*' So, too, a statute is valid which requires each non-resident owner of an automo- bile to designate an agent within the State upon whom process may be served in an action against such owner arising out of the operation of the machine.^" But it has been held that a sec- 47. Kersey v. City of Terre Haute, 161 Tnd. 471, 68 N. E. 1027. 48. State v. M.ixwell Motor Sales Corp., 142 Aiinn. 226, 171 N. W. 566. 49. Garrett v. Turner, 235 Pa. St. 383. 84 Atl 354, affirmirg 47 Pa. Super. Ct. 128, wherein it was said: '•The Act of April 27th. 1909, estab- lislied a universal rule which applies to all persons who operate motor vehicles upon any public liighway within the commonwealth, and it is a general slatute. Strine v. Foltz, 113 Pa. 349. The wide extent of country covered by the movement of a motor vehicle rend- ers it more probable that, when negli- gently operated, an accident may occur and an injury he inMictod in a county other tlian that in which the operator hns his residence. The ease and rapid- ily with which the operator of a motor vrliclc may vanish from the scene wliere he has inflicted an injury, rend- ei's it much more difficult for the party injured to call tlie wrongdoer to ac count in the county where the injury was inflicted anl wliere the witnesses, by whom the negligence of the de'end- .mt nuist be established, reside, than is 18 the case where injury results from the negligent management of a horsedrawu carriage. The operator of a motor ve- il icle whose negligence has caused an injury on a public highway in a county other than in which he has his place of residence, may not only at the time quickly withdraw from the county where the injury has been inflicted, but the speed at which he is able to move along the roads would permit him to subsequently revisit that county at his pleasure, without any risk of being served with legal process while he was within its boundaries. The negligent operator of an automboile has thus a manifest advantage over the driver of a horse, in avoiding service of process within the county where his negligence has caused an injury, and the party injured is at a corresponding disad- vantage in obtaining redress. It is on this difl"erence that the discrimination in the Act of 1909. with regard to the service of process, is founded, and it is a fair and constitutional basis for tl:e legislative discretion." 50. Cleary v. Johnston, 79 N. J. L. 49, 74 Atl. 538, wherein it was said: 274 The Law of Automobiles. tioii of motor vehicle statute, providing that all actions for injury to person or property caused by the negligence of the owner of an automobile may be brought by the injured party in the county of his residence, is an arbitrary, unjust and un- reasonable classification, creates a burden and subjects a class of citizens only, to certain liabilities and requirements to re- spond to a suit in any county in the State, which is required of no other class, and is a denial to them of the equal protection of the law, and such section is therefore unconstitutional/^^ "Assuming tliat the right to tise tlic highways belongs to such non-resident owner, yet it is obviously not an ab- solute right. The stringent legislative restrictions upon the use of the high- ways by automobiles — which restric- tions have received judicial ap- proval — exhibit the fact that the auto- mobile is regarded as a dangerous ma- chine, if used otherwise than under the control provided for by the legislature. Ii is apparent that these restrictions upon the manner in which highways shall be used by automobiles can only be made effective by penalties; and the jienalties can only be enforced by reach- ing the owners of such machines. A provision for impounding the machine itself would be valid, but while valid, would be inefficacious, because the speed of the automobile is such that in most instances the machine itself would es- cape arrest. Resident owners can be reached by service of process within this State, while non-resident owners, of course, unless by voluntary appear- ance are immune from service. Thus while legal proceedings to enforce the penalties for violating the automobile law can be taken in the courts of this State as against residents, yet as to non-residents, in the absence of a pro- vision like the one in question, such enforcement would mean numerous suits in otlier States in the Union from New York to California, or perhaps in other continents. In view of the pres- ent need of a vigorous enforcement of these laws for the protection of all users of tlie highways, I am of the opinion that the condition imposed, that a man who proposes to use our highways for motoring shall agree to submit himself to the courts of the State into which he comes, so far as concerns matters growing out of such use, is neither unconstitutional nor un- reasonable." 'See also Kane v. State of New Jersey, 242 U. S. 160, 37 S. Ct. 30. 51. Hoiblitt V. Gorman, 8 Ohio N. P. (X. S.) 270. Law of the Road. 275 CHAPTER XIV. LAW OF THE ROAD. Section 241. lu general. 242. Object of rules. 243. Judicial notice. 244. Application of statutes or ordinances— pedestrians. 245. Application of statutes or ordinances— bicycles. 246. Application of statutes or ordinances— street railway cars. 247. Driving along street— on wrong side of highway. 248. Driving along street — distance from curb. 249. Meeting and passing other travelers- in general. 250. Meeting and passing other travelers— right of center line of high- way. 251. Meeting and passing othor travelers— seasonable turn to right. 252. Overtaking and passing other travelers- turning to left to pass. 253. Overtaking and passing other travelers— turning to right after passing. 254. Overtaking and passing other travelers— mooting third vehicle after passing toward left. 255. Overtaking and passing other travelers— slower vehicles at curb. 256. Overtaking and passing other travelers- duty of forward vehicle to permit passage. 257. Overtaking and passing other travelers— passing at corner where forward vehicle turns to left. 258. Turning corners — turning toward the right. 259. Turning corners — turning toward the left. 260. Intersecting streets— equal rights of travelers. 261. Intersecting streets — superior right of first arrival. 262. Intersecting streets— regulations giving superior rights along one sti-eet. 263. Turning or backing machine. 264. Signals from one driver to another. 265. Obedience to directions of traffic officer. 266. Driving on walk or place reserved for pedestrians. 267. Effect of violation of law of road— as evidence of negligence. 268. Effect of violation of law of road— imposition of higher degree ot care. 269. Effect of violation of law of road— proximate cause. 270. Excuse for violation of law of road— in general. 271. Excuse of violation of law of road— avoiding obstacle in road. 272. Excuse for violation of law of road— turning to avoid negligent driving of another. 273. Excuse for violation of law of road— insufficient time to obey rule. 274. Excuse for violation of law of road- skidding to wTong side of road. 275. Negligence in adhering to law of road. 276 The Law of Automobiles. Sec. 241. In general. A highway is for the use of the public at large; indeed it has been defined to be a road which every citizen has a right to use. This being so, it is necessary that the travel and traffic on the highway shall be governed by certain laws so that the rights of each citizen may be certain of protection. The rules by which travel on highways is governed in English speaking countries are called ''The law of the road."^ These rules were originally established by custom in England ;2 and together with the common law system were brought to this country by the colonists and were adopted in principle as a part of our jurisprudence, though, as a matter of detail, the English rule requires the turn to the left while the American rule is the reverse.^ Since the advent of automobiles and the greater necessity thereby occasioned for a strict observance of the law of the road, the rules have been enacted in the form of statutes in many States."* And, in the larger cities, the old rules have been found insufficient for the safety and smooth- ness of traffic, and additional regulations have been made by municipal authorities. Municipal corporations have been au- thorized to pass ordinances, not in conflict Avith general stat- utes, for the regulation of traffic along their streets.^ Thus, 1. The law of the road. — Angell, and motor power vehicles on the public Highways, sec. 2. highways." Morrison v. Clark, 196 "The fundamental idea of a highway Ala. 670, 72 So. 305. is not only that it is public for free Driving wagon without ligbts on and unmolested passage thereon by all wrong side of highway as a criminal persons desiring to use it — all the in- offense.— Under the Penal Law of New habitants of the said township, and of York, it was held that driving a wagon all other good citizens of the common- on the wrong side of the highway with- wealth going, returning, passing and out lights was not a crime, but merely repassing, in. along, and through the subjected the wrongdoer to a civil highway. The use of a highway is not penalty, in addition to the damages a privilege, but a right limited by the sustained through the act. People v. rights of others and to be exercised in Martinitis, 168 N. Y. App. Div. 446, a reasonable manner." Radnor Tp. v. 153 N. Y. Suppl. 791. Bell, 27 Pa. Super. Ct. 1, 5. A presumption arises that the law 2. Angell, Highways, sec. 333. of the road of another .State is the 3. Tulsa Ice Co. v. Wilks, 54 Okla. same as that at common law. O'Don- 519, 153 Pac. 1169. nell v. Johnson, 36 R. I. 308, 90 Atl. 4. "Observance of the rule of the 165. road is becoming more important, with 5. Sections 70-73. the increasing use of steam, electric, Law of the Kuau. 277 at some of the congested street intersections, municipal regu- lations have been adopted giving the right of way to vehicles passing in certain directions.^ And in the business sections in some of the great cities, "one way" streets are selected. Regulations of this character are additional to the customary rules which were developed in England. With reference to pedestrians ' and other vehicles,^ the law of the road is further discussed in other chapters of this work. Sec. 242. Object of rules. Too clearly for dispute, the object of rules of the road is the prevention of collisions and other accidents which would likely occur in the absence of some regulations on the conduct and course of drivers.^ Moreover, in the absence of custom or regulations as to the conduct of a driver, he would be com- pelled to use his own judgment as to the best course to pursue to avoid other travelers, and his errors in judgment might re- sult disastrously; to eliminate discretion and errors in dis- cretion, these rules of the road are adopted and should be en- forced.^** The necessity for the rules of the road has be«n em- phasized as the use of motor vehicles in large numbers has be- come more general. Motormen of street cars, chauffeurs, drivers of ordinary vehicles and of emergency vehicles such as ambulances, fire engines, police patrols, etc., as well as pedestrians, depend upon the enforcement of such rules, not alone for the certainty of their movements, but also for then- safety.^^ It has been said that a rule may be disregarded when it fails to serve its purpose.^^ Sec. 243. Judicial notice. Proof of the law of the road is not generally necessary. When founded upon custom or statute, the courts will take 8. Section 262. 10. Haydon v. MeColly, 166 Mo. App 7. S<'ction 432. et seq. 675, 150 S. W. 1132. 8. Sections 371-394. 11. State v. T>arrabce, 104 Minn. 37, 9. Adams v. Pariah (Ky.), 225 S. 115 N. W. 948. W. 467; BuckPT v. White (Md.), Ill 12. Adams v. Parrish (Ky.). 225 S. Atl. 777; Granger v. Farrant. 179 W. 467. Mich. 19. 146 \'. W. 218. 278 The Law of Automobiles. judicial knowledge thereof.^ It is only in some cases when the rule is based solely upon a municipal ordinance that it be- comes necessary to prove the regulation as a matter of fact, for some courts do not take judicial notice of local ordinances." Sec. 244. Application of statutes or ordinances — pedes- trians. A pedestrian who is about to cross a street may be entitled to rely on the law of the road and that vehicles mil approach on the proper side of the street,^ or, if two vehicles are ap- proaching him, that they will obey the law of the road as to each other.i^ But the law of the road is not generally appli- cable to travelers walking along a rural highway. When over- taking or meeting such a person, it is the duty of both the pedestrian and the driver of the machine to exercise ordinary care to avoid a collision, but no rule is, as a general proposi- tion definitely prescribed as to which side of the pedestrian the passage shall be made." So, in an action by an old man, almost blind, against the drivers of an automobile for running over him, the evidence showing that he was at the side of the road and that they ran straight toward him, it was held that it was not material on which side of the road they were driv- ing, where they saw him and took no heed.^^ Sec. 245. Application of statutes or ordinances — bicycles. Statutes providing for the manner of passage of different vehicles on the public highways may, and frequently do, apply to cyclists.^^ A cyclist meeting a truck which is proceeding on the Avrong side of the road need not necessarily give way.^*' 13. Jacobs V. Richard Carvel Co., 183 Pac. 358; Brown v. Thajer, 212 156 N. Y. Suppl. 766; Lee v. Donnelly Mass. 392, 99 K E. 237; Marton v. (Vt.), 113 Atl. 542; Gagnon v. Robi- Fickrell (Wash.), 191 Pac. 1101. taille, 16 R. L. N S. (Canada) 235; 18. Apperson v. Lazro, 44 Ind App. Ofeborne v. Landis, 34 W. L. R. 3 86, 88 N. E. 99. (Canada) 118. 19. Dice v. Jolinson (Iowa), 3 75 N. 14. Section 82. But gee Jacobs v. W. 38; Clark v. Woop, 159 N. Y. App. Richard Carvel Co., 156 N. Y. Suppl. Div. 437, 144 N. Y. Suppl. 595; Tulsa 766. Ice Co. v. Wilkes, 54 Okla. 519. 153 15. Sections 247, 248. Pac. 1169. As to injuries to cyclists^, 16. Off V. Crump, 40 Cal. App. 173, see chapter XIX. 180 Pac. 360. 20. Konig v. Lvon (Cal. App.). 192 17. Randolph v. Hunt (Cal. App.), Pac. 875, Law of the Road. 279 Sec. 246. Application of statutes or ordinances — street rali- way cars. Some confusion exists as to tlie extent to w liicli llic law of the road applies to street railway cars and to other travelers meet- ing and passing such cars. It has been held that the driver of a motor vehicle should turn to the right when meeting a street car.-^ And a regulation providing that 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 the way, has been held applical)le to the driver of a team passing from behind an electric street car which has stopped to let off passengers.^^ But it has l)een held that the provisions of a statute requiring the driver of a "vehicle" approaching an intersecting street to grant the right of way at such intersection to any vehicle coming from the right, does not impose this duty on the motorman of a street car.^^ This conclusion may well be disputed.^^ And an ordinance requiring the driver of a vehicle to "keep on the right-hand side of the street has been held not enacted for the protection of street railway companies, and in an action by the owner of a machine for a collision with a street car, the statute does not make the owner guilty of negligence per ser' A law of the road cannot apply to a street railway car so as to require such car to tnrn from its course. It must follow the track or stop.^'' Sec. 247. Driving- along street — on wrong side of highway. In some jurisdictions, in the absence of other vehicles with which a collision may be expected^ negligence cannot be based 21. Athens Ry. & Elec. Co. v. Mc- (^[iini.). 177 N". W. 944. Kinney, 16 Ga. App. 741, 86 S. E. 83. 25. Watts v. Montgomery Traction Sec also Link v. Skeeles, 207 111. App. Co., 175 Ala. 102, 57 So. 471. 48. 26. State to n.se of Stumpf v. Balti- 22. McGouity v. De Jfarco. 200 more, etc. Rys. Co., 133 Md. 411. 105 :Mass. 57, 85 X. E. 891. Compare City Atl. 532; Campbell v. Ricliard L. & Rd. of Cliicago V. Keogh, 291 111. 188. 125 Co., 181 X. Y. App. Div. 320. 168 N. X. E. 881. Y, Suppl. 813. See also. Northern 23. Reed v. Public Service Ry. Co., Texas Tr. Co. v. Stone ( T-'v. Civ. 89 N. J. Law, 431, 99 Atl. 100. App.), 230 S. W. 754. 24. Svck V. Duluth St. Rv. Co. 280 The Law of Automobiles. on the fact that the driver of a motor vehicle is proceeding along the middle of the road, or even along the left side thereof.^ But in many cities, it is recognized that such prac- tice will occasion danger to foot travelers, and hence statutes and municipal ordinances have frequently been enacted which require that vehicles shall proceed along the right side of the highway.^s Thus, negligence is sometimes charged against the driver of a motor vehicle who drove the machine along the wrong side of the highway, and in consequence thereof a pedestrian crossing the street was struck and injured.^^ A 27. Harris v. Johnson, 174 Cal. 55, 161 Pac. 1155; Langford v. San Diego Elec. Ry. Co., 174 Cal. 729, 164 Pa«. 398; Baker v. Zimmerman, 179 Iowa, 272, 161 N. W. 479; Buzieh v. Todman, 179 Iowa, 1019, 162 N. W. 259 ; Flynt v. Fondern (Miss.), 84 So. 188; Lin- stroth V. Peper (Mo. App.), 188 S. W. 1125; Cohen v. (Joodman & Sons, Inc., 189 N. Y. App. Div. 209, 178 K Y. Supp. 528 ; Sims v. Eleazer ( S. Car. ) . 106 S. E. 854; Stanton v. Western Macaroni Mfg. Co. (Utah), 174 Pac. 821; Richards v. Palace Laundry Cto. (Utah), 186 Pac. 439. "One may travel in the middle or on either side of the traveled way where no person is passing or about to pass in the op- posite direction. It is only upon meet- ing another that the law of the road is invoked. Baker v. Zimmerman (Iowa), 161 N. W. 479. "Driving a vehicle in the middle of a street is neither negli- gence in itself nor a fact from which negligence can be inferred, either un- der the common law or under our stat- ute." Linstroth v. Peper (Mo. App.), 188 S. W. 1125. 28. One way street. — A regulation requiring drivers to proceed along the right of the center of streets cannot apply to a "one way" street. Hedges V. Mitchell (Colo.), 194 Pa«. 620. Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319, wherein it was said: '•The legislature intended to make it the duty of persons so using such high- ways to keep to the right side thereof; in other words, we are of th« opinion that, in thus prescribing highway regu- lations, the legislature thereby intended to require persons so using the public highways to keep to the right of the cen- ter of such thoroughfares at all times when possible to do so, regardless of whether they should actually meet or see any other person traveling on such highway in an opposite direction." See also, Todd v. Orcutt (Cal. App.), 183 Pac. 963; Conder v. Griffith, 61 Ind. App. 218, 111 N. E. 816; Lauden- berger v. Easton Transit Co., 261 Pa. 288, 104 Atl. 588; Smoak v. Martin, 108 S. Car. 472, 94 S. E. 869. 29. UnUed States. — New York Transp. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285. California. — Harris v. Johnson, 174 Cal. 55, 161 Pac. 1155; Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319. Connecticut. — Lynch v. Shearer, 83 Conn. 73, 75 Atl. 88. Delaware. — Grier v. Samuel, 4 Del. 74, 85 Atl. 759, Illinois. — Trzetiatowski v. Evening American Pub. Co., 185 111. App. 451; Devine v. Ward Baking Co., 188 111. App. 588; Wortman v. Trott, 202 111. App. 528; Coonan v. Straka, 204 111. App. 17. Indiana. — Conder v. Griffith, 61 Ind. App. 218, 111 N. E. 816. Iowa.— See Clark v. Van Vleck, 135 Iowa, 194, 112 N. W. 648. Law of the Road. 281 regulation requiring that travelers shall turn to the right upon meeting, and a regulation requiring that travelers shall pro- ceed along the right-hand side of the highway, are not neees- sarily inconsistent.^** And when the driver of a machine makes a sudden swerve to the wrong side of the street where he strikes a pedestrian, his negligence is a question for the jury.^^ But, when the vehicle is overtaking or meeting a pedestrian who is walking along the road, the law of the road has little application.32 So, too, a regulation of the character under dis- cussion has no application to a car which is backed into a park- ing space of limited size close to the curb.^ It is not neces- sarily wrongful to drive to the left side of the street if the driver intends to stop at a house, but he should turn to the right if another machine is approaching.^'^ And an ordinance requiring the drivers of vehicles to keep on the right-hand side of the street has been held to be not enacted for the pro- tection of street railway companies; and, in an action by the owner of a machine for a collision with a street car, the statute does make the owner guilty of negligence.^ Sec. 248. Driving along street — distance from curb. Another type of regulation which is becoming more frequent with the increase in motor vehicle traffic, is that which re- quires certain classes of vehicles to run close to the curb or requires other classes to run a certain distance therefrom.^'' New Jersey. — Pool v. Brown, 89 N. ditional requirement that he shall ke«p J. Law 314 98 Atl. 262. on a certain side of the street while WasftinjioM .—Sogerstrom v. Law- going in a given direction." Suell v. rence, 64 Wash. 245. 116 Pae. 876; Jones, 49 Wash. 582, 96 Pac. 4. Mickelson v. Fisher, 81 Wash. 423, 142 81. Parmenter v. MoDongall. 173 Pac. 1160; Johnson v. Heitman, 88 Cal. 306, 156 Pac. 460. Wash. 595, 153 Pac. 331; Moy Quon v. 32. See Apperson v. Lazro. 44 Ind. M. Furuya Co.. 89 Wash. 526, 1^3 Pac. App. 186, 88 N. E. 99. And see sw- 99 . tiort 432. 30. Suell V. Jones, 49 Wash. 582, 96 33. Sheldon v. James, 175 Cal. 474, Pac. 4. "Repeals by implication are 166 Pac. 8, 2 A. L. R. 1493. not favored in law, and it can be seen 34. Shaw v. Wilcox (Mo. App.). 224 at a glance that there is no neces&ary S. W. 58. conflict between the provisions of the 35. Watts v. Montgomery Traction two ordinances. A provision requiring Co., 175 Ala. 102. 57 So. 471. a driver to pass another in a given 36. See Humphrey v. U. S. Macaroni manner is not in conflict with an ad- Co. (Cal. App.), 193 Pac. 609: Burich 282 The Law of Automobiles. For example, municipal ordinances are very frequently en- acted so as to require the slow moving vehicles to keep close to the curb and to allow the faster ones the more central part of the street. Where an automobile was driven twenty-five feet from the right-hand curb, in violation of a traffic ordi- nance, and the driver twice gave a stop signal but stopped only after the second one, it was held that he was guilty of contributory negligence so as to bar a recovery for damages to the machine sustained by reason of a vehicle running into the rear thereof.^^ Under a statute in Minnesota entitled, ''An act to license and define the road regulations of motor and other vehicles and appropriating money therefor," and providing in part that "in cities or villages, or any place where traffic is large, or on streets usually congested with traffic of horse-drawn vehicles or street cars, slow moving vehicles must keep near the right curb, allowing those moving more rapidly to keep near the center of the street," it was held that a defendant could be convicted for a violation of the law although he was not blocking any traffic but was merely driving on the part of the street most convenient for him.^ Sec. 249. Meeting and passing other travelers — in general. In England, when two vehicles meet upon the public high- way, they pass to the left of each other.^^ In this country, the colonists followed the Continental custom, which was the reverse of the English, and passed to right of other travelers. The practice of the colonists, now reinforced by statutory enactment and municipal regulation, remains the law of the V. Todman, 179 Iowa, 1019, 162 N. W. 389. as to an ordinance forbidding 259; Stack v. General Baking Co. standing automobiles more than two (Mo.). 223 S. W. 89; Kelley v. James, feet from the curb. 37 S. Dak. 272, 157 N. W. 990. 37. Russell v. Kemp, 95 Misc. (N. Intersecting streets.— It is thought Y. ) 582, 159 N. Y. Suppl. 865. that a regulation requiring the driver 38. State v. Bussian, 111 Minn. 488, of a motor vehicle to keep as close to 127 N. W. 495, 31 I*. R. A. (N. S.) the right-hand curb as possible, does 682. In this case the defendant was not apply at intersecting streets. See driving a furniture van drawn by two Bullis V. Ball, 98 Wash. 342, 167 Pac. horses near the right curb. 942. 39. Wright v. Fleischnian, 41 Misc. Vehicles standing at curb.— See Col- (N. Y.) 533, 85 N. Y; Suppl. 62 lins V. Marsh, 176 Cal. 639, 169 Pac. Law of the Road. 283 road.^'' Statutes enacted before the popular use of motor vehicles, prescribing the turns to be made by ''vehicles" or ''teams" are construed as applying to automobiles." Speak- ing in general terms, when two vehicles meet and collide on a 2)ul)lic highway which is wide enough for them to pass with safety, the traveler on the wrong side of the road is respon- sible for the damages sustained by the one traveling on the proper side.''- But a traveler is not justified in getting his machine on the right-hand side of the road and then proceed- ing regardless of other travelers; on the contrary, the duty of exercising reasonable care for the avoidance of injuries to others continues and applies to those who may be violating the law of the road.^^ 40. McGee v. Young, 132 Ga. 606, 64 S. E. 689; Palmer v. Baker, 11 Me. 338; Jaquitli V. Richardson, 8 Mete. (Mass.) 213; Week v. Reno Traction Co., 38 Nev. 285, 149 Pac. 65; Smith v. Dygert. 12 Barb. (X. Y.) 613; Easring v. Lansingh, 7 Wend. (N. Y'.) 185. 41. Athens Ry. & Elec. Co. v. Mc- Kinney, 16 Ga. App. 741, 86 S. E. 83; Bragdon v. Kellogg (Me.), lO." Atl. 433. 42. Alabama. — Morrison v. (lark. 196 Ala. 670, 72 So. 305. California. — SluiiX' v. Rodolpli (Cal). 197 Pac. 57. Illinois. — Branden'l)erg v. Klelir, 197 111. App. 459. Iowa. — Buzicli v. Todman. 179 Towa, 1019, 162 X. W. 259. Kansas. — Arrington v. Horner, 82 Kans. 817, 129 Pac. 1159. Maine. — Bragdon v. Kellogg. 118 Me. 42, 105 Atl. 433: Stobie v. Swllivan, 118 Me. 483. 105 Atl. 714; Sylvester v. Gray, 118 Me. 74, 105 Atl. 815. Minnesota. — Molin v. Wark, 113 Minn. 190. 129 X. W. 383. .Mississippi. — Flynt v. Fondren (Miss.), 84 So. 188. Mis,ionri. — -Havdcn v. McColiv, 166 .Mo. App. 675, 150 S. W. 1132; Harris V Pew, ]85 Mo. App. 275, 170 S. W. M44; ( olumbia Taxicab Oo. v. Roem- niicli (Mo. App.), 208 S. W. 859. Montana — Savage v. Boyce. 53 :\ront. 470, 164 Pac. 887. \eio Yorlc. — Millman v. Appleton, 139 N. Y'. App. Div. 738, 124 N. Y'. Siippl. 482; Clarke v. Woop, 159 N. V. App. Div. 437, 144 N. Y'. Suppl. 595. \ortJi Dakota. — Hendricks v. Iliiirlies. 37 X. Dak. 180, 163 N. W. 268. Oklahoma. — Tulsa Ice Co. v. Wilkes, 54 Okla. 519, 153 Pac. 1169. Oregon. — Pinder v. Wickstrom, 80 Oreg. 118, 156 Pac. 583. s'oiith Dakota . — Schnabel v. Kafer, ;:9 S. Dak. 70, 162 X. W. 935. Utah. — Stanton v. Western Macaroni Mfg. Co., 174 Pac. 821. Washington. — Lloyd v. Calhoun, 82 W«,sh. 35, 143 Pac. 458; Paton v Cashmere Warehouse & Storage Co.. 176 Pac. 544; Zuccone v. Main Fish Co., 177 Pac. 314. Wisconsin. — Jolin v. Pierce (Wis.), 178 X'. W. 297. 43. Hoover v. Reichard. 63 Pa. Super. Ct. 517. 284 The Law of Automobiles. Sec. 250. Meeting and passing other travelers — right of center line of highway. Custom, as well as positive statutory and ordinance pro- visions in many States, require that the turning to the right upon meeting other travelers shall be to such an extent that each traveler shall he on his own side of the center line of the highway." That is to say, even if the road were so wide that the travelers could safely pass each other on the same side of the center line, the law of the road disapproves such prac- tice.*^ Such regulations do not require a' driver to remain at all times on the right side of the center, hut require only that he shall so turn when meeting another vehicle.*^ The phrase ** center of the road," as used in regulations of this nature, has been held to mean the center of the traveled or wrought part of the road.*^ When the road is covered with snow, travelers who meet must turn to the right of traveled part of the road as it then appears, regardless of what would be the traveled part when the snow is gone.*^ But under a statute requiring a person on a public highway in any vehicle to turn to the right and give one-half of the traveled road upon meet- 44. California.— Diehl v. Roberts, 134 39 S. Dak. 70, 162 N. W. 935. CPvI. 164, 66 Pac. 202. Wisconsin. — Hoppe v. Peterson. 165 Illinois.— Dunn v. Moratz, 92 111. Wis. 200. 161 N. W. 738. App. 277. Compare Nordley v. Sorlie, 35 N. /oicc— Buzich V. Todman, 179 Iowa, Dak. 395, 160 N. W. 70. 1019, 162 N. W. 259. 45. Wright v. Fleischman, 41 Misc. Maine— Bragdon v. Kellogg, 118 Me. (N. Y.) 533, 85 N. Y. Suppl. 62. 42, 105 Atl. 433; Eieker v. Gray, 118 46. Walker v. Lee (N. C), 106 S. Me. 492, 107 Atl. 295. E. 682; Sims v. Eleazer (S. C), 106 Massachusetts. — Rice v. Lowell Buick S. E. 854. Co., 229 Mass. 53, 118 N. E. 185. 47. Clark v. Oommoii wealth, 4 Pick. Minnesota. — .Molin v. Wark, 113 (Mass.) 125. See, however, Daniel v. Minn. 190, 129 N. W. 383; Morken v. Clegg, 38 Mich. 32, holding that the St. Pierre, 179 N. W. 681. phrase "traveled part of the road" in Montana. — Savage v. Boyce, 53 such a statute means that part which Mont. 470, 164 Pac. 887. is wrought for traveling, and is not New York. — Wright v. Fleischman, confined simply to the most traveled 41 Misc. 533, 85 N. Y. Suppl. 62. wheel track. See also Baker v. Zim- Oklahoma.— Tulsa Ice Co. v. merman, 179 Iowa, 272, 161 N. W. 479; Wilkes, 54 Okla. 519. 153 Pac. 1169. Schnabel v. Kafer (S. Dak.), 162 N. South Carolina. — ^Smoak v. Martin, W. 935. 108 S. Car. 472, 94 S. E. 869. 48. Jaquith v. Ricliardson, 8 Mete. South Dakota. — Schnabel v. Kafer, (Mass.) 213. Law of the Road. 285 ing another vehicle, it has been held that the fact that one does not give the other half of the road is not conclusive evi- dence of negligence, and in an action to recover for injuries alleged to have been caused by the defendant's failure to give the plaintiff's buggy half of the road, it was decided that if the plaintiff's horse and buggy were outside the traveled road, the defendant need not give one-half of the road, but could run his automobile on the traveled path, provided there was room to pass and the plaintiff's horse had shown no signs of fright." Sec. 251. Meeting and passing other travelers — seasonable turn to right. The statutory provisions in the various jurisdictions as to the turn which the driver of a vehicle shall make when meet- ing another vehicle, are slightly variant as to language. In a few States the lawmakers have required that the drivers shall ''reasonably" or "seasonably" turn to the right.^ This requirement has been held to mean that each should turn to the right in such season that neither shall be retarded by rea- son of the other's occupying his half of the way.^^ Under such an enactment, it is held that it is not necessary for a per- son to turn to the right so that all of his vehicle is on the right of the center of the highway, but it is sufficient if he turns out far enough so that the approaching vehicle may pass safely without turning at all.^'^ Statutory provisions in some States may make an exception in favor of heavily laden vehicles, per- mitting them to continue along the center of the road.^^ 49. Neody v. Littlejohn, 137 Iowa, 54 Atl. 600; Stanton v. Western Maca- 704, 115 N. W. 483. roni Mfg. Co. (Utah). 174 Pac. 821. 60. Martin v. Carnithers (Colo.), 51. Neal v. Randall, 98 Me. 69, 56 195 Pae. 105; Lemmon v. Broadwater, Atl. 209, 63 L R. A. 668: Bmgdon v. 30 Del. (7 Boyce) 472, 108 Atl. 273; Kellogg, 118 Mo. 42, 105 Atl. 433; Oupples Merchantile Ct). v. Bow. 32 Stanton v. Western Macaroni Mfg. Co. Idaho, 774, 189 Pac. 48; Flynt v. (Utah). 174 Pac. 821. Fonderii (Miss.), 84 So. 188; Edwards 52 Bnxton v. Ainsworth. 138 Mich. V. Yarbrough (Mo. App.), 201 S. W. 532, 101 N. W. 817, 11 Det. Leg. N. 972; Puick v. Thurston, 25 R. I. 36, 684, 5 Ann. Cas 146. 286 The Law of Automobiles. Sec. 252. Overtaking and passing other travelers — turning to left to pass. Under the English custom, when one traveler overtakes and wishes to pass another traveling in the same direction, the faster one should turn toward the right and the slower one toward the left. In this country, it has sometimes been thought that there was no custom on the subject having the force of law ;^ but, even in the absence of statute especially prescrib- ing the course to be pursued, it was thought generally that the law of the road required the overtaking traveler to pass to the left of the forward vehicle. In any event that course is now in practically every State required by statutory enact- ment.^ If an automobilist attempts to pass on the wrong 53. See Hayden'v. MoColly, 166 Mo. App. 675, 150 S. W. 1132. 54. Bolton V. Colder, 1 Watts (Pa.) 360. "Unless there is a statute or municipal regulation to the contrary, one overtaking and passing another may pass on either side, using proper caution, and keeping a safe distance behind when not passing. The leading team may travel anywhere it pleases, using, however, due care. ... It necessarily follows that, if the leading team should use the left side of the highway, leaving insufficient space for the rear team to pass, the latter may pass to the right. If for any other reason, such as the obstruction of the highway on the left of the leading team by other teams proceeding in the op- posite direction, so as to prevent a passage to the left of the team in front, the rear team may, if there is sufhcient spa/ce and it can be done by the exer- cise of proper care, pass to the right of the team in front. The general rule, therefore, that teams traveling in the same direction on a highway should pass each other to the left has its ex- ceptions, and must be applied with ref- erence to the circumstances of the par- ticular case." Wright v. Mitchell, 252 Pa. St. 325, 97 Atl. 478. In Louisiana, it has been held that the driver or owner of the rear vehicle passes, at his peril, the forward one, and is responsible for all damage caused thereby. Avegno v. Hart, 35 La. Ann. 235. See also, to same effect, Menard V. Lussier, 50 Que. S. C. (Canada) 159. 55. California.— Wea,\er v. Carter, 28 Cal. App. 241, 152 Pac. 323. Connecticut. — Feehan v. Slater, 89 Conn. 697. 96 Atl. 159. Indiana. — Hamilton, Harris &, Co. v. Larrimer, 183 Ind. 429, 105 N". E. 43; Borg V. Larson, 60 Ind. App. 514, 111 K E. 201. Louisiana. — Manceaux v. Hunter Canal Co., 148 La. — , 86 So. 665. Missouri. — Pannell v. Allen, 160 Mo. App. 714, 142 S. W. 482. Neio Jersey. — Unwin v. State, 73 N. J L. 529, 64 Atl. 163, affirmed State v. Unwin, 75 X. J. L. 500, 68 Atl. 110; Decou V. Dexheimer, 73 Atl. 49; Pool v. Brown, 89 N-. J. Law, 314, 98 Atl. 262. North Carolina. — ^Cooke v. Jerome, 172 N. C. 626, 90 S. E. 767. Rhode Island. — Ribas v. Eevere Rub- ber Co., 37 R. L 189, 91 Atl. 58. Wiscoiisin. — Riggles v. Priest, 163 Wis. 199, 157 N". W. 755; Mahar v. Lochen, 166 Wis. 152, 164 N. W. 847. Law of the Road. 287 side of another traveler, lie may be responsible for the in- juries sustained by such traveler.^^ The left side is the proper side to pass on, though it brings the automobilist on the left side of the highway;^' but, because of the fact that when he passes the left of the center of the highway he is perhaps violating the law of the road as to a third vehicle approach- ing from the opposite direction, he should attempt the pas- sage only when he can do so with safety to the travelers he is meeting as well as to the vehicle he is passing.^ He must exercise reasonable care in making the passage in order that injury will not result to other travelers.^^ The law of the road relative to overtaking and passing other travelers, is not generally applicable to pedestrians.^'^ Nor is it applicable to street* cars, for the law contemplates that the forward con- veyance shall give way toward the right, and street cars are unable to do so on account of the fixity of their route.^ An ordinance may require an automobilist to pass to the right of a street car which he is overtaking.^^ Sec. 253. Overtaking and passing other travelers — turning to right after passing. After passing the rear of the forward vehicle, an automo- bilist must exercise reasonable care in turning back toward the right into the center of the highway. If he makes the turn sooner than reasonable prudence would dictate, he may be. liable for damages for striking or frightening the horses drawing the forward carriage,"^ or for striking one riding in 56. Borg V. Larson, 60 Ind App. 514, ^Marco, 200 ^fass. 57, 85 X. E. 891. Ill N. E. 201; Schaffer v. IMillor, 185 62. City of Chicago v. Kroeli. 291 Iowa, 472, 170 N". W. 787. 111. 188, 125 N. E. 881. 57. Paschel v. Hunter, 88 N. J. L. Proper side for motor car to pass 445, 97 Atl. 40. tram car proceeding in same direction. 58. Pratt v. Burns, 189 N. Y. App. Burton v. Nicholson (K. B. Div.). 100 Div. 33, 177 N. Y. Supp. 817. And see Law T. K. (N. S.) 344. section 254. 63. House v. Fry, 30 Cal. App. 157, 59. Bishard v. Engelbeck, 180 Iowa, 157 Pac. 500; Dclfs v. Dunshce. 143 1132. 164 N. W. 203, Iowa, 381, 122 N. W. 236: Zellnier v. 60. Brown v. Thayer. 212 Mass. 392, McTaigiie. 170 Iowa. 534, 153 N". W. 99 N. E. 237. 77; Duiikolbeck v. ifeyer, 140 Minn. 61. Harris v. Johnson, 174 Cal. 55, 283, 167 X. W. 1034. 161 Pac. 1155. Compare McGourty v. 288 The Law of Automobiles. the forward conveyance." In some States, the return to the beaten path is regulated hy statute, the enactments prescrib- ing a definite distance from the carriage for the return of the automobilist.^^ Wliere the evidence tended to show that de- fendant's car approached plaintiff from the rear, was within a few feet of his horse when passing, and turned in front of him but a short distance ahead, and that a well broken horse is likely to be frightened under such circumstances unless some warning is given, it was held that the question of whether defendant exercised reasonable caution in thus passing plain- tiff 's horse, was for the jury.^ And the driver of the vehicle which is left in the rear must also exercise reasonable care to avoid a collision with the passing vehicle." Sec. 254. Overtaking and passing other travelers — meeting third vehicle after passing toward left. One vehicle should not attempt to pass another, unless the passage can be made with reasonable safety to third persons. Although statutes or municipal ordinances may permit a faster vehicle to pass another on the left side thereof, the driver of he rear vehicle should not attempt this course when injury is likely to be thereby occasioned to a cyclist or vehicle approaching from the opposite direction.^^ If he does attempt the passage without information of his intention to the traveler approaching from the other way, and such traveler is unable by an exercise of due diligence to avoid a collision, he is liable for the injuries sustained by such traveler, for he should wait a suitable opportunity before attempting the pas- sage.^^ From the point of view of a traveler approaching 64. Moreno v. Los Angeles Transfer The traffic law requirement that a Co. (Cal. App.), 186 Pac. 800. vehicle driver pass a vehicle ahead of 65. Zellmer v. McTaigue, 170 Iowa, him to the left docs not excuse him 534. 15.^ N. W. 77. from exercising care in ascertaining 66. Delfs V. Dunshee, 143 Iowa, 381, whether it can be done with safety to 122 N. W. 236. those on the left side of the street. 67. Winslow v. New England Co op. Pool v. Brown, 89 N. J. Law, 314, 98 See. 225 Mass. 576, 114 N. E. 748. Atl. 262. 68. Pool v. Brown, 89 N. J. Law, 69. Nafziger v. Mahan (Mo. App.), 314, 98 Atl. 262; Ribas v. Revere Rub- 191 S. W. 1080; Ribas v. Revere Rub- ber Co., 37 R. I. 189, 91 Atl. 58. ber Co., 37 R. I. 189, 91 Atl. 58. "As Law of the Road. 289 from the opposite direction at the time a rear vehicle attempts to pass another going in the same direction, the passing con- veyance is on the left or wrong side of the highway. In some jurisdictions the matter is specifically regulated by statute. Regulations may prohibit the passage by the rear vehicle un- less the way is clear for a specified distance ahead, such as one hundred yards.'^ Sec. 255. Overtaking and passing other travelers — slower vehicles at curb. For the regulation of traffic in some of the larger cities, ordinances have been adopted requiring slower moving vehi- cles to keep toward the curb and allowing the faster ones a course nearer the center of the street.''^ But, though the for- ward vehicle is not traveling as near to the curb as the ordi- nance requires, the rear one is not justified in running into it; the fact that there is plenty of room on the left side of the forward vehicle for passing without injury to other travelers tends to show that the violation of the regulation by the forward vehicle is not a proximate cause of the injury, and hence it does not preclude a recovery for injuries thereto.^^ we have before substantially said, a the vehicle in the opposite direction is person attempting to pass a vehicle simply one of the circumstances which ahead of him and going in the same must be considered by the rear man direction must exercise proper care in when he attempts to pass. It is simply so doing. If a vehicle is approaching one of the tilings which demands the from the opposite direction at the mo- exercise of care upon his part under ment wlien he desires to pass the ve- all circumstances, and in some circum- hicle in front, and the highway is not stances he would be required to re- wide enough to safely accommodate frain from attempting to pass until the all three teams abreast, then it would approaching vehicle had gone by." be tlie duty of the person in charge of Ribas v. Revere Rubber Co., 37 R. I. the rear vehicle, in the exercise of 189. 91 Atl, 58. proper care under the circumstances, 70. See Wiley v. Young, 178 Cal. to wait until the vehicle coming in the 681, 174 Pac. 316. opposite direction had passed by be- 71. House v. Fry, 30 Cal. App. 157, fore he attempted to turn out. It is 157 Pac. 500; Hcrdman v. Zwart, 167 not necessary to involve the question Iowa. 500. 149 N. W. 631: Harnau v. as to the duty of the vehicle in the Haight, 189 Mich. 000, 155 X. W. 563. roar, in passing, towards another ve- 72. House v. Fry, 30 Cal. App. 157. hide that may be approaching in an 157 Pac. 500. opposite direction. The approach of 19 290 The Law of Automobiles. Sec. 256. Overtaking and passing other travelers — duty of forward vehicle to permit passage. A slower vehicle has no right to obstruct a faster one desir- ing to pass if the situation is such that the rear one can pass in safety ."^ When the driver of the faster conveyance desires to pass, it is the duty of the forward one to turn toward the right so as to give the rear one a reasonable opportunity for passage.'^ The driver of the forward vehicle cannot, how- ever, be expected to turn toward the right, until he has some knowledge that the rear one is approaching and that its driver wishes to pass.'^^ The driver of the rear machine should give a signal of his wishes in respect to passing.'* Moreover, the forward driver cannot be required to give way unless the condition and width of the road is sucih that the passage can be made with reasonable safety.'^ If the driver of the slower vehicle is not allowed sufficient time to turn to the right before the rear vehicle strikes him, he cannot be charged with con- tributory negligence.'^* If a person on horseback apparently does not hear the approach of an automobile from the rear, the driver of the machine cannot proceed regardless of the fact that the horseback rider does not turn out, but he should slacken the speed of the machine and even stop it if neces- sary.^'^ A horseback rider is not generally required to yield but half of the beaten track to an automobilist who desires to pass him.^*^ 73. Dunkel'beck v. Meyer. 140 Minn. 79. Furtado v. Bird, 26 Cal. App. 283, 167 N. W. 1034. 153, 146 Pac. 58. 74. Paschel v. Hunter. 88 X. J. L. 80. Traeger v. Wasson, 163 111. App. 445, 97 Atl. 40; Laudenberger v. Eas- 572, wherein it was said: "While it ton Transit Co., 261 Pa. 288, 104 Atl. may be known as a matter of general 588. knowledge that out of courtesy a man 75. Morrison v. Clark, 196 Ala. 670, traveling upon horseback usually leaves 72 So. 305 ; House v. Fry, 30 Cal. App. the beaten track for the use of a ve- 157, 157 Pac. 500; Dunkelbeck v. hide for the reason that it may be Meyer, 140 Minn. 283, 167 N. W. 1034. easier for the horse without a vehicle 76. Dunkelbeck v. Meyer, 140 Minn. attached to travel upon that portion 283, 167 N. W. 1034. of the highway which is not included 77. Dunkelbeck v. Meyer, 140 Minn. in the beaten track, the statute does 283, 167 N. W. 1034. not require that a person traveling 78. Pens v. Kreiter, 98 Kans. 759, upon horseback so do. Under the rule 160 Pac. 200. that persons' rights upon the public TjAW of the Road. 291 Sec. 257. Overtaking and passing- other travelers — passing at comer where forward vehicle turns to left. When two vehicles are proceedin.L,^ alon^^ a .street in the same direction, and the forward one starts to turn a corner toward the left, it is not an appropriate time for the rear vehicle to attempt to pass on the left of the forward vehicle. ^\niether the driver of the rear vehicle under such circumstances is guilty of negligence, may be a question for the jury."^ Appro- priate statutory and municipal regulations have been enacted in some jurisdictions to relieve the danger of the situation. It is a matter of regulation in some cities that the driver of the forward vehicle shall by some signal make known to the driver of the rear machine his intention to turn the corner.^ If the driver of the forward vehicle gives a signal in com- pliance of the statute and a collision nevertheless occurs, the negligence of the rear driver may be found by the jury.^ But when no signal is given, the driver of the rear carriage is not charged with notice that the forward traveler may attempt to dart across the course. An accident of such a nature may happen so quickly that liability will not be charged against the driver of the rear vehicle.^* Sec. 258. Turning corners — turning toward the right. When an automobilist is proceeding along the right-hand side of a street, a t\irn toward the right is not a difficult mat- ter. If other vehicles are obeying the law of the road, there high-way are equal, plaintiff bad the discloses that he did." right to continue to use at lea-st one- 81. Wingert v. Cohill (Md.), 110 half of the beaten track and the record Atl. 857 ; Mendelsou v. Van Rensselaer, discloses that he did no more .than this. 118 N. Y. Aj>p. Div. 516. 103 N. Y. that he surrendered the right side of Suppl. 578. the beaten track for the use of the de- 82. Section 264. fendant, and that was all that he was 83. Frank C. Weber Co. v. Stevenson required to do. The fact that the par- Grocery Co., 194 111. App. 432: Win- ties were going in the same direction gert v. Cohill (Md.), 110 Atl. 857; instead of in opposite directions ini- Daly v. Case, 88 N. J. L. 295. 95 Atl. posed no greater obligation upon the 973. plaintiff to leave the beaten track, and 84. Newbauer v. Nassau Elec. R. Co., the plaintiff was not guilty of oontribu- 191 N. Y. App. Div. 732. 182 N Y. tory negligence by traveling on the left .'^uppl. 20 : Hartley v. Lasater. 96 side of the beaten track as the record \\a«h. 407, 165 Pac. 106. 292 The Law of Automobiles. is little danger of collision. The principal duties of the driver of a motor vehicle when turning toward the right are reason- able diligence to avoid pedestrians who may be on the street crossing, and the obedience of regulations prescribing his distance from the corner. He must anticipate that foot travelers will be using the crossing, and reasonable care on his part requires that he have the machine under controP^ and give warning to pedestrians,^^ and stopping if necessary to avoid them.^^ One turning a corner at an excessive rate of speed may be found guilty of negligence.^^ Affirmative regu- lations, as well as custom, require that one turning toward the right shall keep to the right of the center of the intersect- ing streets.^^ Statutes and municipal ordinances, in some cases, require that the automobilist shall keep as close to the curb as possible,^"* or keep to the right of the intersecting point of the street.^^ Under such regulations, if the proper course of the driver is temporarily blocked by other travelers, he is not justified in violating the requirement and turning toward the left, but he should slacken his speed or delay the turn.^^ A statute requiring a turn as closely to the curb as possible is designed more for the protection of other vehicles than for the safety of pedestrians using the crosswalk. Foot 85. See sections 326, 441. 91. Walters v. Davis (Mass.), 129 86. See sections 329-331, 448. ' N. E. 443. 87. Kuchler v. Stafford, 185 111. App 199; Buscher v New York Transp Co., 106 N. Y. App. Div. 493, 94 N. Y, Suppl. 796; Taylor v. Stewart, 172 N, Car. 203, 90 S. E. 134; and see sec 92. City of.Oshkosh v. Campbell, 151 Wis. 567, 139 N. W. 316, wherein it was said : "The mere fact, without any fault of appellant, that he had to choose between slackening speed or, tions 327, 442. even, stopping for a moment for a 88. Sections 305, 308. clearance of the way, or violating the 89. Pemberton v. Army (Cal. App.), ordinance, by turning as he did. is no 183 Pac. 356, affirmed 182 Pac. 964; justification for his act. If it were Bogdan v. Pappas, 95 Wash. 579, 164 left to every owner of an automobile Pac. 208. to violate such a city regulation when 90. Pemberton v. Army (Cal. App.), otherwise he would experience some in- 183 Pac. 356, affirmed 182 Pac. 964; eonvenience, there would be very little Anderson v. Schorn, 189 N. Y. App. use of having such an ordinance, and Div. 495, 178 K Y. Suppl. 603; Rus- the difficulty, now very great, of guard- sell V. Kemp, 95 Misc. (N. Y.) 582, ing against automobiles being a seri- 159 N. Y. Suppl. 865; City of Oshkosh ous menace to the personal safety of T. Campbell, 151 Wis. 567, 139 N. W. people while on the public ways would 816. be intolerable." Law of the Road. 293 travelers are better protected by a requirement that a certain number of feet shall be left between the machine and curb corner. Hence regulations are sometimes enacted which are designed for the safety of pedestrians and prohibit the turn- ing within a specified distance of the curb.^^ General regu- lations governing the conduct of drivers when meeting or overtaking other vehicles are not usually applicable at street intersections.^* Sec. 259. Turning corners — turning toward the left. The turning of a corner by a motor vehicle toward the left is fraught with greater danger to other travelers than is a turning toward the right. Obviously, when making the turn, the driver will be intercepting the course which other vehicles may properly take in accordance with the law of the road. Regulations generally require that one turning toward the left shall pass to the right of the center of the intersecting streets ; and negligence may be founded on the act of a driver cutting the corner.^^ Especially should the driver turn so as 93 Domke v. Gunning. 62 Wash. Delivery Co., 198 Ala. 449, 73 So. 642. 629, 114 Pac. 436. Arkansas.-Temp\e v. Walker, 127 Obstructed corner.-Where an ordi- Ark. 279, 192 S. W. 200. nance required a person driving an au- California.-Cook v. Miller, 175 Cal. tomobile, upon turning the corner of 497, 166 Pac. 316; Perez v- Hartman, any street "to leave a space of at least 39 Cal. App. 601, 179 Pac. 706; Mar- six feet between the curb and the . . . tinclli v. Bond (Cal. App.), 183 Pac. automobile" and it appeared that on 463. „ ^ ,. the lot fronting the street where the Indiana,.— V^eitz v. Hodgkins, 185 accident happened a building was be- Ind. 163, 112 N. E. 386. in- erected and that debris had been /otra.-Walterick v. Hamilton. 1-0 piTed up at the corner of the street Iowa, 607, 161 N. W. 684. around which a fence or barricade had Kansas.-Cross v. Rosencranz, 19d been constructed, compelling pedes- Pac. 857. trians to leave the regular walk, step Massachusetts.— Walters v. Davis, into the street and walk around the 129 N. E. 443. outside of the fence or barricade, it Michigan.-TXecd v. Martin 160 was held that the fence became the Mich. 253, 125 N. W. 61; Holdem j curb within the meaning of the ordin- Hadley, 180 Mich. 568, 147 N. W 48-; ance. Domke v. Gunning. 62 Wash. Everhard v. Dodge Bros., 202 Mich. 48. 029, 114 Pac. 436. 167 N. W. 953. 94. Buzich V. Todman, 179 Iowa, Minnesota.— MoVm v. Wark^ nd 1019, 162 N. W. 259. Minn. 190, 129 N. W 383; Day ^v 95. Aia6a«m.-Karples v. City Ice Duluth St. R. Co., 121 Mmn. 445, 141 294 The Law of Automobiles. to enter upon the right side, not the left side, of the cross- street.^^ Liability does not necessarily follow because at the time of a collision, one's vehicle is found on the wrong side of the center point; on the contrary, he may be allowed to explain his course and may possibly succeed in charging the driver of the other vehicle with negligence.^'^ The purpose of this class of regulations is to keep vehicles moving, as far as practicable, Avith the course of travel, and hence there may be no violation where the driver proceeds to the right of their intersection as defined by customary use, though his course is to the left of the intersecting point as the streets were laid out.^^ The driver is bound to know that, when making the turn, the rear wheels of the machine will not follow exactly N. W. 795; Unmacht v. Whitney. 178 N- W. 886; Elvidge v. Strong & War- ner Co., 181 N. W. 346. Missouri. — Heryford v. Spitcanfsky (Mo. App.), 200 S. W. 123. Nebraska. — Rule v. Claar Transfer & Storage Co., 102 Neb. 4, 165 N. W. 883. New Jersey. — Winch v. Johnson, 92 X. J. L. 219. 104 Atl. 81. New York. — ^Beickhemer v. Empire Carrying Corp.. 172 N. Y. App. Div. 866, 158 N. Y. Suppl. 856; MaeDonald V. Kusch, 188 App. Div. 491, 176 N. Y. Suppl. 823; Jacobs v. Richard Car- vel Co., 156 N. Y. Suppl. 766. See also Mendelson v. Van Rensselaer. 118 N Y, App. Div. 516, 103 N. Y. Suppl. 578. Oregon. — White v. East Side Mill &. Lumber Co.. 84 Oreg. 224, 161 Pac. 969, 164 Pac. 736. South Dakota. — Boll v. Gruesner, 176 N. W. 517. Texas. — Zucht v. Brooks (Civ. App.), 216 S. W. 684. Washington. — ■ Hellan v. Supply Laundry Co., 94 Wash. 683, 163 Pac. 9; Stubbs V. Molberget, 108 Wash. 89, 182 Pac. 936, 6 A. L. R. 318; Kane v. Nakmoto, 194 Pac. 381. Wisconsin. — Foster v. Bauer, 180 N. W. 817. C'flHada.— Bain v. Fuller, 29 D. L. R. 113. Question for jury. — In an action for negligent injuries claimed to have re- sulted from the collision of a bicycle and an automobile, the owner of which was shown by undisputed evidence to liave failed in complying with the sta- ute requiring the driver of a motor \('hicle to keep to the right of street intersections in turning corners, while the bicyclist was claimed to have been negligent, under disputed testimony in failing to avoid the accident, the ques- tions of negligence and of contribu- tory negligence were held to be ques- tions of fact. Pvced v. Martin, 160 Mich. 253, 125 N. W. 61. Proximate cause. — The violation of the rule as to cutting comers is not generally the proximate cause of an in- jury arising after the driver has com- pleted the turn and is passing along the proper side of the intersecting street. Wilkinson v. Rohrer (Cal. App.), 190 Pac. 650. 96. Wortman v. Trott, 202 111. App. 528. 97. See sections 270-275. 98. Karpeles v. Oity Ice Delivery Co., 198 Ala. 449, 642, Hamilton v. Young (Iowa). 171 N. W. 694. Law of thi: Koad. 2!): in the tracks of the forward wliecls, and he should exercise reasonable care to avoid causing un injury from the rear as well as front wheels.^^ Sec. 260. Intersecting streets — equal rights of travelers. In the absence of statute or ordinance or s^jecial circum- stances affecting the question, the rights of travelers along intersecting streets are equal,^ each being bound to exercise ordinary care to avoid injury to the other.- An automobilist approaching a street intersection should run at a proper speed,^ have his car under reasonable control/ and give warn- ing to other travelers who might ])e injured by his machine.^ Moreover, he should be running on the right-hand side of the street in accordance with the law of the road applicable to such travel.''' If two travelers approach the street crossing at the same time, neither is justified in assuming that the other will stop to let him pass.'' The equalities of the different travelers may be modified by statute or municipal ordinance,^ or special circumstances may affect the rights of the parties.' But it has been held that one party cannot show a custom 99. White v. East Side Mill & Lum- ber Co., 84 Oreg. 224, 161 Pac. 969. 164 Pac. 736. 1. See .-^ection^ 48-50, :56J. 414, 488. 2. C'fl/i'/or/n'a.— Piichvell v. Los An- geles & S. D. Ry. Co., 169 Cal. 780. 148 Pac. 197. Indiana. — Klgin Dairy Co. v. Shep- pard (Ind. App.), 103 N. E. 433. Iowa. — Wagiier v. Kloster, 175 N. W. 840. Louisiana. — Shields v. Fairchild, 130 La. 648. 58 So. 497. Missouri. — Rowe v. Hammond, 172 Mo. App. 203, 157 S. W. 880; Clark v. General Motor Car Co., 177 Mo. App. 623, 160 S. VV. 576. Neio Hampshire. — Gilbert v. Bnrqiio, 72 N. H, 521, 57 Atl. 97. New York. — Towner v. Brooklyn Heights R. Co., 44 N. Y. App. Div. 628, 60 N. Y. Suppl. 289; Ebling Brewing Co. V. Linch, 80 Misc. (N. Y.) 517. 141 X. Y. Suppl. 480: Miller v. Xew York Taxicab Co., 120 N. Y. Suppl. 899. New Jersey. — Spawn v. Gfoldberg (N. .r. ), 110 AtL 565. Pennsylvania. — Brown v. Chambers, 65 Pa. Super. Ct. 373. And see sections 277-282, as to the care to be exercised by automobilists. 3. Section 311. 4. Section 326. 6. Sections 329-331. 6. And see section 347; Lawrence v. Goodwill (CaL App.), 186 Pac 781; VValleigh v. Bean, 248 Pa. St. 339, 93 Atl. 1069. 7. Elgin Dairy Co. v. Shephard (Ind. App.), 103 N. E. 433; PascA goula St. Ry. &, Power €o. v. McEach crn. 109 Miss. 380, 69 So. 185. 8. Sections 261, 262. 9. One approaching a main artery of traffic from an intersecting street, should, it is held in Canada, wait and give way thereto. Monnifol v. B. C. Electric Co., 9 Dom. Kaw Rep. 569. 296 The Law of Automobiles. which has permitted vehicles on one street to have a priority over those on the cross street.^^ Statutes relating to the meeting and passing of vehicles along the streets and requir- ing that each turn to the right, do not apply when the meeting is on intersecting streets at right angles.^^ Sec. 261. Intersecting streets — superior right of first arrival. When one vehicle reaches a street intersection distinctly in advance of one approaching along the intersecting street, he is generally accorded the right of way, and the other should delay his progress to enable the first arrival to pass in saf ety.^^ 10. Carson v. Turrish, 140 Minn. 445, 168 N. W. 349, wherein it was said: '"The propriety of the proffered proof of custom has had careful atten- tion. That on an issue of negligence a known custom or usage may in a proper case be proved as bearing upon negligence or the absence of it is not to be questioned. Dunnell's Minn. Dig. & Supp. §§ 7049, 7050. So in O'Neil V. Potts, 130 Minn. 353, 153 N. W. 856, it was held proper to show a prac- tice among drivers of autos to extend the hand to the side before stopping as a signal to cars following. The ques- tion presented by the offer of proof is different. It was sought to show that main street traffic has a right of way over side street traffic, something more than an equal right at the cross- ing, and that the side street traffic is bound to exercise special care and cau- tion to avoid collisions with the traffic on main thoroughfares. In effect it was sought to establish something ap- proximating a rule or law of the road, though we do not understand counsel to claim that the custom for which he contends gives an arbitrary right, though a substantial advantage. We think the ruling was correct. Indeed it is the rule in many jurisdictions that the vehicle first at the crossing without negligence has the right of way across." See also, Whatley v. Nesbitt (Ala.), 85 So. 550. 11. Buzich V. Todman, 179 Iowa, 1019, 162 N. W. 259; Wagner v. Kloster (Iowa), 175 N. W. 840. 12. Rupp v. Keebles, 175 111. App. 619; Walker v. Hilland, 205 111. App. 243; Carson v. Turrish (Minn.), 168 N. W. 349; Minnis v. Lemp Brewing Co. (Mo. App.), 226 ;S. W. 999; Bar- rett V. Alamito Dairy Co. (Neb.), 181 N. W. 550; Rabinowitz v. Hawthorne, 89 N. J. L. 308. 98 Atl. 315; Reed v. Public Service Ry. Co., 89 N. J. Law, 431, 99 Atl. 100; Boggs v. Jewell Tea Co., 263 Pa. St. 413, 106 Atl. 781; Simon v. Lit Bros., 264 Pa. St. 121, 107 Atl. 635; Yuill v. Berryman, 94 Wash. 458, 162 Pae. 513; W. F. Jahn & Co. V. Paynter, 99 Wash. 614, 170 Pac. 132. "That rule [referring to the common law rule] is that the driver of the automobile would have the right of way if, proceeding at a rate of speed which under the circum- stances of the time and locality was reasonable, he should reach the point of crossing in time to go safely upon the tracks in advance of the approach- ing car; the latter being sufficiently distant to be checked, and, if need he, stopped, before it should reach him." Reed v. Public Service Ry. Co.. 89 N. J. Law, 431, 99 Atl. 100. And see sections 393, 394. Law of the Road. 29' If in such a case, while the driver of the vehicle, m the exer- cise of his right, is proceeding across, and a later arriving vehicle continues, neglectful of the other's rights, and a col- lision ensues, the collision may properly be attributed to he negligence of the later arrival.^^ The first arrival is entit ed to proceed, though he sees the other approaching, for, m the absence of anything indicating a contrary intention he is en- titled to assume that the latter will slacken his speed and give him the priority to which he is entitled.- The priority of the first arrival is not inconsistent with the principle of equa rights to the use of the streets.^^ The fact that the first arriva is a slow moving vehicle, does not abridge its right of priority.^* Sec. 262. Intersecting streets - regulations giving superior rights along one street. The doctrine that approaching vehicles have equal rights to the use of a street intersection, is one which may be, and m recent years frequently has been, modified by statute or muni- cipal ordinance. In some cities where traffic is more con- gested in certain directions than on cross streets, ordinances have been promulgated giving vehicles on the mam thorough- fares priority over vehicles approaching on the cross streets. 13. Rupp V. Keebles, 175 111. App. usually fair rule of S-}<^^-^'' ^-^J^^ 619- Yuill V. Bcrryman, 94 Wash. elers; and in no sense is it a fixed t^t 4^8 162 Pac 513 of negligence. It must be exercised 'Vmnl V Lemp Brewing Co. with decent respect to the rights of senau v. Peter- son, 179 N. W. 647. Missouri. — Freeman v. Green (Mo. App.). 186 S. W. 1166. iVew? Jersey. — Erwiu v. fraud, 90 N. J. Law, 289, 100 Atl. 184; Paulsen v. Klinge. 92 N. J. Law, 99, 104 Atl. 95; Spawn V. Goldberg, 110 Atl. 565. Neio York. — Van Ingen v. Jewish Hospital, 182 N. Y". App. Div. 10, 169 N. Y. Suppl. 412; Ward v. Clark, 189 N. Y. App. Div. 344, 179 N. Y. Suppl. 466; Hood V. Stowe, 191 N. Y. App. I>iv. 614, 181 N". Y. Suppl. 734. Oklahoma. — Lee v. Pester field. 77 Okla. 317, 188 Pac. 674. Texas.— E\ Paso Elec. Ry. Co. v. Benjamin (Te.x. Civ. App.). 202 S. W. 996. Washington. — Clark v. Wilson. 108 Wash. 127, 183 Pac. 10:>. Wisconsin. — Glatz v. Krocger Bros. Co., 168 Wis. 635. 170 N. W. 934. 25. Glatz V. Kro€ger Bros. Co., 168 Wis. 635, 170 N. W. 934. 26. Oberholtzer v. Hubbell (Cal. App.). 171 Pac. 436; Carbaugh v. Wbite Bus Lino (Cal. App.). 195 Pac. 1066. 27. Kinnfv v. King (Cal. App.l. 190 Pac. 834. 300 The Ijaw of Automobiles. a crossing, whether given by law or established by custom, has no proper application, except where the travelers or vehicles on the intersecting streets approach the crossing so nearly at the same time and at such rates of speed that, if both pro- ceed, each without regard to the other, a collision or inter- ference between them is reasonably to be apprehended. In such case it is the right of the one having the precedence to continue his course, and it is the duty of the other to yield him the right of way.^^ But if a traveler, not having such right of precedence, comes to the crossing and finds no one approaching it upon the other street within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or to wait, but may proceed to use such crossing as a matter of right.^^ It is easily deduced from the above rules, that it is frequently a question for the jury as to which party has the right of way.^** » Sec. 263. Turning or backing machine. The driver of an automobile may be charged with negli- gence if he, without warning to a vehicle approaching from the rear, turns or backs his machine so that the rear vehicle is unable to stop or avoid a collision.^^ It may be regarded as negligent for a chauffeur to back his machine upon a city street or public highway without looking backward to see if there is any apparent danger in so doing.^^ jf one backs an 28. Johnson v. Hendrick (Cal.App.), Misc. (N. Y.) 617, 182 N. Y. Suppl. 187 Pac 782; Ward v. Gildea (Cal. 297. App.), 186 Pac. 612; Neuman v. Aster 30. Mead Co. v. Products Mfg. Co., (Conn.), 112 Atl. 350; Bettilyon v. 110 Misc. (N. Y.) 648, 180 N. Y. C. E. Smith & Son (Md.), 112 Atl. Suppl. 641. 649; Schultz V. ISTickolson, 116 Misc. 31. Koenig v. Semran, 197 111. App. (N. Y.) 114; Lee v. Pesterfield, 77 624; Alyea v. Junge Baking Co. (Mo. Okla. 317, 188 Pac. 674; Noot v. Hun- App.), 230 S. W. 341; Ackerman v. ter, 109 Wash. 343, 186 Pac. 851. Fifth Ave. Coach Co., 175 N. Y. App. 29. Barnes v. Barnett, 184 Iowa, Div. 508, 162 N. Y. Suppl. 49; Lee v. 936, 169 N. W. 365; Lee v. Pesterfield, Donnelly (Vt.), 113 Atl. 542. 77 Okla. 317, 188 Pac. 674; Virginia 32. Pease v. Gardner, 113 Me. 264, Ry. & Power Co. v. Grocery Co. (Va.), 93 Atl. 550; Enstrom v. Neumoegen, 101 S. E. 878; Hull v. Crescent M*'g. 126 K Y. Suppl. 660. Co., 109 Wash. 129, 186 Pac. 322; The sudden backing of an automo- Weber v. Greenbaum (Pa.), 113 Atl. bile which theretofore was standing by 413. See also, Blum v. Gerardi, 111 the curb, whereby a person is injured, Law of the Road. 301 automobile on a street car track without looking for approach- ing street cars, he is clearly negligent.^^ And it has been said that it is gross negligence for a chauffeur to move an automobile backward suddenly with great speed without warning that he is about to do so or looking out for the safety of persons near by or of those who may be getting on or off the cars at such place.^^ One intending to turn his machine or back it into a street where other travelers are passing should give a warning of his intention- ^^ut nevertheless the law does not under all circumstances forbid the backing of motor vehicles either on private driveways ^« or on public streets Even a statute requiring vehicles to proceed along the right-hand side of the street does not forbid the driver of a vehicle from backing for a short distance so as to bring, the car into a position by the curb- The backing of a ma- chine may put greater precautions on the driver, but, if he takes the proper precautions under the circumstance, he is not necessarily liable.^^ Statutes have been enacted m some juris- dictions forbidding the driver of a vehicle to make a turn m any street at a time when the turn would interfere with other vehicles, and requiring the driver under such circnmstanees to go around the block or to a street sufficiently wide that the turn can be made without backing.^^ And regulations have been prescribed which forbid a turning except at street inter- sections."^ But, even if a regulation provides for turns to be calls for some explanation on the part Question for jury.-Backing an au^ :t operator. Grudborg v. Ehrct, 70 to.o.i.c -\;"*«^,;^;7^,,;^^^, .^ r-o^ iAO \r V Simnl 379. warnino' to other users of tne streei, ""sT B Sh V Atho^; etTRy CO., 108 including the plaintiff, who .as in- M : ^ 7 sIn E 310 jured ^vhile riding a motorcycle, by ' M Samp\ Lambert 142 Mo. App. Ling into collision with another au- .«r\o Tw 770 tomobi'e. in an attempt to avoid the I'. UMrthv Burns Bros 229 N. Y. automobile backing. The defendant's 9« N f' 111 negligence and the plaintiff's contribn- 'le Canlan' V Reynolds (Iowa), 182 tory negligence "are questions of fact to XT w fill be decided by a jury. It was not error N. W. 641. ,n 1 \ la-i fnr the trial court to refuse a motion 37 S„eWo„ V. to, (Cal.>, .63 f;;;;J; ^^ ,„„,„rtff „, air.ct a ver- 38 H.„n V. P, Graham S. Co., i48 diet tor the de^-ndant. Pyer, v. Tio„. „^ c> A-1 89 N. J. Law, 520. 99 Atl. IdU- a^PvL V Tiers. 89 N. J. I.a», 40. Coonan v. S.raka. .'0. r„. App. 520, 99 Atl. 130. ^'^- 302 The Law of Automobiles. made at street intersections, they must be made with due re- gard to the rights of other travelers.*^ In a case in Massachusetts, which was an action by one who, while riding a bicycle, was run into and injured by an auto- mobile, at or near the junction of two intersecting streets that ran at right angles to each other, it appeared that the driver of the automobile was turning around so as to go back in an opposite direction upon the same street on which he came. The defendant requested that a ruling be made that the law of the road as contained in the statute did not apply at the place where the accident occurred. The judge refused to make such ruling and did not in any part of his charge put the plaintiff's right to recover upon the law of the road so referred to, but said to the jury: ''You are to take all the evidence, all the circumstances, and determine whether he was doing anything he ought not to have done, that an ordinarily reasonable and prudent man would not have done under all the circumstances. He had the right to make that turn. He had a right to use any part of the street that he was coming into, subject only to the rights of other people who might be there. If two vehicles meet in the street, it is the duty of each other of them, as seasonably as they can, to get each on his own right-hand side of the traveled way of that street. But that law does not compel a man always to be on the right side. He can use any part of the street so long as he is not interfering with the rights of other people, and the fact this happened on the right-hand side of the street is only another piece of evidence to be considered by you. You are to con- sider whether Peterson was endeavoring, in making a turn, to get on the right-hand side near the hydrant, where under cer- tain circmnstances he properly belonged." The foregoing was held to be a proper presentation of the law applicable to the evidence.*^ 41. Ackerman v. Fifth Ave. Coach 42. Johnson v. Shaw, 204 Mass. 165, Co., 175 N. Y. App. Div. 508. 162 N. 90 N. E. 518. Y. Suppl. 49. Law of TTn; TIoad. 30o Sec. 264. Signals from one driver to another. In some of the larger cities traffic has become so congested at certain points that mere regulations as to the course of vehicles are not always sufficient to avoid collisions. It has been found expedient to require, not only that the drivers shall keep a certain course in their progress, but also when turning corners or stopping or making some maneuver out- side of normal progress that they shall signal their intention to other vehicles in proximity."^ Thus one about to turn a corner should slacken his speed so that he can make the turn in safety to himself and other travelers on the cross street, and it is a wise requirement that he should signal a following vehicle of his intention in order that no collision result on account of his decreased speed or the change in his course.'*^ xVn ordinance which requires the driver to give a signal with a whip or his hand when turning, so as to indicate the direc- tion in which the turn is to be made, is a reasonable require- ment for the regulation of traffic.*^ Also, when a rear vehicle wishes to pass a forward one, it is proper that some signal be given of such intention in order that the forward driver may be prepared to surrender a part of the road.''*' A signal that a forward vehicle is to be brought to a stop should not be given unless the driver actually does so.'*'^ A co-related duty is also imposed on other travelers to take heed of warn- ing signals and govern their movements accordingly, and 43. Clark v. WeatliPrs, 178 Iowa, 432. 97, 159 X. W. 585. 46. Dunkelbr^k v. Meyer (Minn.), 44. See Litherbury v. Kimniet 167 N. W. 1034. And see section 256. (€^1.), 195 Pac. 660; Wingert v. 47. Negligence of driver. — Tlie act Gohill (Md.). 110 Atl. 857. of the driver of plaintiff's automobile, Extending whip. — One driving a who while driving twenty five feet horse and wagon may extend his whip from the right-hand curb in violation to the sight of the driver of motor ve- of a traffic ordinance, twice gave a hide following, as a signal of liis in stop signal but stopped only after the tention to turn a corner. Daly v. Case. second one, constitutes such contribu- 88 N. J. L. 295. tory negligence as precludes a rccov- 45. Johnson Oil Refining Co. v. cry for damages by defendant's auto- Galesburg, etc. Power Co., 200 111. App. mobile running into the rear of plain- 392. See also, Frank (". Wel)er Co. v. tiff's car. Russell v. Kemp. 9.) Misc. Stevenson Grocery Co.. 194 111. App. (X. \.) 3S2. 159 N. Y. Suppl. S65. 304 The Law of Automobiles. negligence may be charged against them in case of their failure.''^ Sec. 265. Obedience to directions of traffic officer. A municipal ordinance which requires that the drivers of vehicles shall at all times obey the orders of police officers, cannot be sustained. Such a regulation would put the citizen in the arbitrary power of the officer regardless of the circum- stances of the case, and is beyond the power of a munici- pality.'«» Sec. 266. Driving- on walk or place reserved for pedestrians. When it is shown that the operator of a motor vehicle drove the machine on a sidewalk or other place reserved for the use of foot travelers and there infficted injury to such a traveler, it is incumbent on the driver to show that his ma- chine intruded without his negligence.^^ This question is further discussed in the chapter particularly relating to in- juries to pedestrians.^^ Sec. 267. Effect of violation of law of road — as evidence of negligence. The general rule with regard to the evidentiary value of proof of a violation of the law of the road is that, the viola- 48. Paulsen v. Kinge, 92 N. J. L. 99, was in the wrong. Tliis however, 104 Atl. 95. See al=o, Clark v. Weath- of course, is open to explanation. The ers, 178 Iowa, 97, 159 N. W. 585. fact, however, remains, that if the de- 49. City of St. Louis v. Allen, 275 fendant left the public traveled high- Mo. 501, 204 S. W. 1083. See also, way and came upon the sidewalk where North State Lumber Co. v. Charleston people were congregated, and, in so do- (S. Car.), 105 S. E. 406. ing, collided with one rightfully upon 50. Brown v. Des Moines Steam Bot- the walk, he is prima facie guilty of tling Works. 174 Iowa, 715, 156 N. W. negligence, and is liable for the in 829, 1 A. L. R. 835; McGettigan v. jury, unless his act in so doing is ex- Quaker City Automobile Co., 48 Pa. eused by reason of the intervention of iSuper. Ct. 602. "The general rule is some independent agency, over which that where a collision occurs between he had no control, which operating a vehicle on the wrong side of the road, upon his movement, forced him, with- er at a place where the vehicle has no out fault on his part, into the position right to be, with a person rightfully as hereinbefore explained." Brown v. occupying the place, there is a pre- Des Moines Steam Bottling Works, sumption that the collision was caused 174 Iowa, 715, 156 N. W. 829. by the negligence of the person who 51. Sections 429-431. Law of the Road. 305 tion is not negligence per se, but that it is merely prima facie evidence of negligence, and the issue of negligence should, therefore, be generally decided by the jury and not be dis- posed of by the judge as a matter of law.^^ Qj,^ ^q g^^^^g ^^^ 52. Alabama. — See McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Mor- rison V. Clark, 196 Ala. 670, 72 So. 305. Arkansas. — Temple v. Walker, 127 Ark. 279, 192 S. VV. 200. California. — Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319. See also, Slaughter v. Goldberg, Bowen & Co., 26 Cal. App. 318. 147 Pac. 90; Mathes V. Aggeler & Musser Seed Co., 179 Cal. 697, 178 Pac. 713. Connecticut. — Irwin v. Judge, 81 Conn. 492, 71 Atl. 572. Delaicare. — Grier v. Samuel, 4 Del. 74, 85 Atl. 759. Georgia. — McGee v. Young, 132 Ga. 606, 64 S. E, 689. Illinois. — Frank C. Weber Co. v. Stevenson Grocery Co., 194 111. App 432; Culver v. Harris, 211 111. App. 474. Indiana. — Conder v. Griffith, 61 Ind. App. 218, 111 N. E. 816. loica. — Hubbard v. Bartholomew, 163 Iowa. 58, 140 N. W. 13; Herdman V. Zwart, 167 Iowa, 500, 149 N. W. 631; Carpenter v. Campbell Automo- bile Co., 159 Iowa, 52, 140 N. W. 225. Kansas. — Giles v. Ternes. 93 Kan. 140, 143 Pac. 491. Maine. — Palmer v. Barker, 1 1 Me. 338; Neal v. Kendall, 98 Me. 69, 56 Atl. 209, 63 L. R. A. 668; Bragdon v. Kellogg, 118 Me. 42, 105 Atl. 433. Massachusetts. — Parker v. Adams, 12 Mete. 416; Spofford v. Harlow, 3 Allen, 176; Steele v. Burkliardt, 104 Mass. 59; Perlstein v. American Exp. Co., 177 Mass. 530. 59 N. E. 194, 52 L. R. A. 959. Michigan — Buxton v. Ainsworth, 138 Mich. 532, 101 N. W. 817, 818, 11 Det. Leg. N. 684, 5 Ann. Cas. 177. Minnesota. — See Day v. Dulnth St. R. Co., 121 Minn. 445, 141 N. W. 795. 20 Montatm. — Savage v. Boyce, 53 Mont. 470, 164 Pac. 887. Nebraska. — Rule v. Claar Transfer & Storage Co., 102 Xeb. 4. 165 N. W. 883. New Hampshire. — Brooks v. Hart, 14 N. H. 307; Taylor v. Thomas, 77 N. H. 410, 92 Atl. 740. New Jersey. — Kolankiewiz v. Burke, 91 N. J. L. 567, 103 Atl. 249. New York. — Burdick v. Worrall, 4 Barb. 596. North Carolina. — "Tlie statute in force at the time of the injury com- plained of . . . required the de- fendant to turn to the right when he met the plaintiff's intestate on the road, and if he failed to do so he was guilty of a breach of a statutory duty, which is negligence." Goodrich v. Matthews, 177 N. Car. 198. 98 S. E. 529. Oklahoma. — Tulsa Ice Co. v. Wilkes, 54 Okla. 519, 153 Pac. 1169. Rhode Island. — Angell v. Lewis. 20 R I. 391, 39 Atl. 521. South Carolina. — Sims v. Eleazer, 106 S. E. 854. Washington. — Segerstrom v. Law- rence. 64 Wash. 245, 116 Pac. 876; Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106; Peterson v. Pallis. 103 Wash. ISO, 173 Pac. 1021. See also Mickel- son v. Fisher, 81 W^ash. 423, 142 Pac. 1160; Moy Quon v. M. Furuya Co.. 81 Wash. 526. 143 Pac. 99; Hiscock v. Phinncy, 81 Wash. 117, 142 Pac. 461; Sheffield v. Union Oil Co, 82 Wash. 386, 144 Pac. 529; Loyd v. Calhoun. 82 Wash. 35. 143 Pac. 458: Johnson v. Heitman, 88 Wash. 595. 153 Pac 331; Walters V. City of Seattle, 97 Wash. 657, 167 Pac. 124. Canada. — Osborne v. Landis. 34 W. L. R. 118. 306 The Law of Automobiles. rule in other language, in case of a collision between vehicles, a presumption of negligence arises against the driver who was on the wrong side of the road at the time of the collision.^^ Decisions can he found, however, which hold that a violation Evidence of negligence, —in Pennsyl vania, it has been held that the viola- tion of a city ordinance requiring a vehicle to travel on the right-hand side of the street could be considered with other evidence, but that in itself it v/as not sufficient evidence of negli- gence of one going on the other side. Foot V. American Produce Co., 195 Pa. St. 190, 45 Atl. 934, 49 L. R. A. 764. Children. — The effect of a violation of an ordinance is the same in the case of a child as in the case of an adult. Kolankiewiz v. Burke, 91 N. J. !-•. 567, 103 Atl. 249. Instructions as to assuming risk from violation. — In a case in Georgia, a charge was held proper, which, in part was "that the rule of the road, as established by the laws of Georgia, requires travelers with vehicles, whether carts, wagons, automobiles, or bicycles, when meeting, to each turn to the right, and that it was the duty of the plaintiff to know and observe the rule of the road. Persons using the public streets, as conscious human agents, are bound to exercise their faculties of seeing and hearing, and are further bound to exercise ordinary care to avoid the consequences of the negligence of others who are using the public streets, by either remaining away or getting out of the way of prob- able or known danger after they dis- cover it, if in the exercise of ordinary care and prudence they should dis- cover it. If a person voluntarily as- sumes a risk or does a thing in a dangerous way which can be safely done, he assumes the risk of what he does, and if an accident occurs and in- jury results to him in consequence thereof, he cannot recover; and in this connection I charge you that if you find from the evidence that the plain- tiff's injuries were occasioned, wholly or in part, by his violation of the rule of the road, or in his voluntarily as- suming a risk or in doing a thing in M dangerous way which he could have done in another way in safety, he can- not recover." McGee v. Young, 132 Ha. 606, 64 S. E. 689. 53. California. — 'Slaughter v. Gold- berg, Bowen & Co., 26 Cal. App. 318, 147 Pac. 90; Harris v. Johnson, 174 C'al. 55, 161 Pac. 1155; Hagenah v. Bidwell (Cal. App.), 189 Pac. 799. Delaware. — Grier v. Samuel, 4 Boyce (Del.), 74, 85 Atl. 759. Georgia. — MoGee v. Young, 132 Ga. P06, 64 S. E. 689. Iowa. — Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631. See also, T.aker v. Zimmerman, 179 Iowa, 272, 161 N. W. 479. Massachusetts. — Perlstein v. Ameri- can Exp. Co., 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959. Michigan. — Daniels v. Clegg, 38 Mich. 32; Buxton v. Ainsworth, 138 Mich. 532, 101 N. W. 817, 11 Det. Leg. N". 684, 5 Ann. Oas. 177; Black v. Parke, Davis & Co. (Mich.), 178 N. W. 700. Mississippi. — Flynt v. Fondern (Miss.), 84 So. 188. Missouri. — Columbia Taxicab Co. v. Roemmich (Mo. App.), 208 S. W. 859. Montana. — Savage v. Boyce, 53 Mont. 470, 164 Pac. 887. New Hampshire. — Brooks v. Hart, 14 N. H. 307. New York. — Clarke v. Woop, 159 App. Div. 437, 144 N. Y. Suppl. 595, holding that a boy riding a bicycle on the wrong side of the road was not free from contributory negligence where there was nothing to obstruct Law of the Road. 307 of statute or municipal ordinance prescribing a rule of traffic, constitute negligence per se.^ But, generally, as the viola- tion is only presumptive evidence of negligence, the guilty party is given an opportunity to rebut the presumption,^^ and he may rebut the presumption by showing some good excuse for traveling in violation of the law of the road.^ But, if no excuse is presented for the apparent violation, the evidence of wrongful conduct is sufficient for a finding of negligence. In fact, an unexplained or unexcused violation may be deemed conclusive on the issue of law, and the court may in some cases dispose of the question as a matter of law.^"^ Sec. 268. Effect of violation of law of road — imposition of higher degree of care. When the driver of a vehicle is not taking the course pre- scribed by the law of the road, the danger of injury to others his view of an approaching automobile or to prevent him from obeying the law of the road. Pennsylvania. — Presser v. Dough- erty, 239 Pa. 312. 86 Atl. 854, hold- ing, in the case of a bicyclist who was injured while riding upon the wrong side of the street, a non-suit was prop erly granted where it did not appear that the automobile was being driven at a dangerous or careless rate of speed. Rhode Island.— AngeW v. Lewis, 20 R. I. 391, 39 Atl. 521. [Zfa/i.— Stanton v. Western Maca- roni Mfg. Co., 174 Pac. 821. Ordinances not pleaded.— In an ac- tion for negligence consisting of reck- less and careless driving in a public- street, municipal ordinances regulating the speed of vehicles and the niaiinor of turning from one street into an- other and proof of tlieir violation, al- though not pleaded, are admissible not a3 conclusive evidence of negligence but as some evidence thereof. Meyers V. Barrett, 167 N. Y. App. Div. 170. 152 N. Y. Suppl. 921. Negligence is indicated by the fact tliat a person was driving an automo- bile upon the wrong side of the road. Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701. 54. Kinney v. King (Cal. App.), 190 Pac. 834; Hedges v. Mitchell (Colo.), 194 Pac. 620; Cupples Mercantile Co., 189 Pac. 48, 32 Idaho, 774: El- vidge V. Stronge & Warner Co. (M^nn.), 181 N. W. 346; Borak v. Mosler Safe Co. (Mo.), 231 S. W. 623; Zucht V. Brooks (Tex. Civ. App.), 216 S. W. 684; John v. Pierce (Wis.), 178 N. W. 297; Foster v. Bauer (Wis.), 180 N. W. 817. And see section 297. 55. Lawrence v. Goodwill (Cal- App.), 186 Pac. 781; Foster v. Curtis, 213 Mass. 79. 99 N. E. 961, Ann. Cas. 1913 E. 1116; Buxton v. Ainsworth, 138 Mich. 532, 101 N. W. 817, 818, 11 Det. Leg. N. 684, 5 Ann. Cas. 146; Piper v. Adams Exp. Co. (Pa.), 113 Atl. 562. 56. Cook v. Miller. 175 Cal. 497, 166 Pac. 316: Potter v. Glaasoll, 146 La. 687, 83 So. 898. And see sectiona 270-274. 57. Martin v. Carruthers (Colo.), 195 PaL-. 105; Vickery v. Armatead 308 The Law of Automobiles. is thereby increased. Other travelers assume that the driver of a motor vehicle will obey the law of the road, and they may rely on such assumption, until a contrary intention is indi- cated.^^ Under the general rule that the degree of care to be exercised is commensurate with the dangers to be antici- pated,^^ it may be said that one traveling on the wrong side of the road is required to exercise a higher degree of care than if he were following the proper course.^* Sec. 269. Effect of violation of law of road — proximate cause. The doctrine of proximate cause runs through the entire law of negligence and applies whether the wrongful act in question consisted of the violation of a law of the road founded on custom, or of the infringment of a municipal ordi- nance or statute regulating the use of the highways. That is, in the case of a violation of the law of the road by a traveler, he is not liable for injuries sustained by another traveler, unless the injuries are such as proximately result from the violation." And, when the defendant sets up the (Iowa), 180 N". W. 893; Marsh v. proceed with care to the point where Bumhain (Mich.), 179 N. W. 300. he can see beyond the obstruction and 58. See sections 352, 409, 473, 512. learn whether it is safe for him to 59. Section 278. proceed. Mason -Seaman Transp. Co. 60. New York Transp, Co. \. Gar- v. Wineburgh, 130 N. Y. Suppl. 178. side. 157 Fed 521, 85 C. C. A. 285; 61. Morrison v. Clark, 196 Ala. 670, Fahrney v. O'Donnell, 107 111. App. 72 So. 305; Needy v. Littlejohn, 137 608; Columbia Taxicab Co. v. Roem- Iowa, 704. 115 N. W. 483; Herdman v. mich (Mo. App.), 208 S. W. 859; Zwart, 167 Iowa, 500, 149 N. W. 631; Greenbaum V. Costa (Pa.), 113 Atl. 79; Buxton v. Ainsworth, 138 Mich. 532, Angell V. Lewis. 20 R. I. 391, 39 Atl. 101 N. W. 817. 11 Det. Leg. N. 684, 5 521; Moy Quon v. M. Funiya Co., 89 Ann. Cas. 146; Horowitz v. Gottwalt Wash. 526, 143 Pac. 99; Plcickwell v. (N. J.), 102 Atl. 930; Baker v. Fogg Wilson, 5 Carr. & Payne (Eng.) 103; & Hires Co. (N. J.), 112 Atl. 406; Osborne v. Landis, 34 W. L. R. Peterson v. Pallis, 103 Wash. 180, 173 (Canada) 118. Pac. 1021. "But the driver of a ve- And see section 280. hide proceeding on the 'wrong side' of Where a chauffeur in leaving a garage the highway is not liable for injury is compelled, in order to proceed in the sustained by another in collision with direction he desires to go, to cross on his conveyance, unless the negligent the wrong side of the street, and there act of driving on the wrong side was Ib an obstruction to his view of ve- the proximate cause of the injury, hides on such side, it is his duty to There must be casual connection be- Law of the Road. 309 violation of the law of the road by the plaintiff as a matter of contributory negligence, to constitute a bar to the plain- tiff's action, it must appear that the violation was^^a con- tributing cause of the injury sustained by the plaintiff/'' Con- tributory negligence is a defense to an action based on a viola- tion of traffic regulations.^ Sec. 270. Excuse for violation of law of road — in general. The violation of the law of the road is not conclusive on the question of the violator's negligence; it is only prima facie evidence of his negligence,^* and he is permitted to show cir- cumstances excusing his conduct and rebutting the presump- tion of negligence.'^ He may show the surrounding circum- tween the unlawful or wTongful act of driving on the left side, and the result- ing injury." Morrison v. Clark. 196 Ala. 670, 72 So. 305. Liability for turning out.— Under the provision of the Iowa statute, requir- ing a person in a vehicle to give to an- other vehicle one-half of the road on meeting, liability on failing to do so arises only when such failure is the proximate cause of resulting injury. Needy v. Littlejohn, 137 Iowa, 704, 115 N. W. 483. 62. Feehan v. Slater, 89 Conn. 697, 96 Atl. 159; Walters v. Davis (Mass.). 129 N. E. 443; Boulton v. City of Seat- tle (Wash.), 195 Pac. 11. 63. Weihe v. Rathjen Mercantile Co., 34 Oal. App. 302, 167 Pac. 287. -^d flee section 301. 64. Section 267. 65. Alabama- — ^Morrison v. Clark, 196 Ala. 670, 72 So. 305. California. — Langford v. San Diego Elec. Ry. Co.. 174 Cal. 729. 164 Pac. 398; Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319. "But it is not to be understood that we intend to hold that the fact that the driver of a mo- tor vehicle may violate the statute by driving on the wrong side of the road or street is itself necessarily an act of negligence in all cases. He might for a sufficient reason be compelled to drive on the left of the center of the road or street, and do so in such man- ner as to leave to approaching vehicles, pedestrians, or animals ample oppor- tunity to pass with perfect safety to themselves, in which case, if damage occurred by collision with his vehicle, the question as to whose negligence was directly responsible therefor would de- pend for its solution upon the other circumstances attending the accident. In brief, and in other words, the fact that he was driving over the highway on the left of the center of the road- way might, where injury to another had resulted tlierefrom, constitute pi-ima facie evidence of negligence, but it would amount to no more than that, and its evidentiary ofTect might prop- erly be overcome or dispelled by other evidence." Stohlman v. Martin, 28 Gnl. App. 338, 152 Pac. 319. /ndtono.— Condor v. Griffith, 61 Ind. App. 218, 111 N. E. 816: Borg v. Lar- son, 60 Ind. App. 514, 111 N. E. 201. '•It may be said tliat facts which will excuse such technical violation must ^ result from causes or things beyond the control of the person charged with the violation. In such iiist,ances there may or may not be actionable negli- gence, and it is a question of t.ict. to 310 The Law of Automobiles. stances indicating a necessity for turning to the left side of the highway.^ A deviation from the rule is sometimes neces- sai7 in the crowded streets of a metropolis,'^'' though it may be argued that a congestion of traffic is a reason for adhering to the law of the road rather than an excuse for its violation.^ And, in order to allow street railway passengers to alight, it is said that the driver of a motor vehicle may use the left side of a street.^^ But the fact that, on account of the dark- ness, the driver was unable to see the vehicle he was approach- ing does not excuse his conduct in driving on the wrong side ; on the contrary, the darkness is a circumstance in aggrava- tion, rather than in mitigation, of an omission to use the proper side of the highway.'^** Ignorance of the law is no ex- bt- determined by the court or jury trying the case, from all the facts and circumstances shown by the evidence: First, whether there was a sufficient and reasonable excuse for such viola- tion; and, second, whether in doing or omitting the act complained of the de- fendant was, in fact, guilty of action- able negligence." Conder v. Griffith, 61 Ind. App. 218, 111 N. E. 816. lovxi. — Riepe v. Elting, 89 Iowa, 82 56 N. W. 285, 26 L. E. A. 769; Car- penter V. Campbell Automobile Co., 159 Iowa, 52, 140 N. W. 225; Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631; Giese v. Kimball. 184 Iowa, 1283, 169 N. W. 639. Mas8aw, 314. 98 Atl. 262; Erwin v. Traud, 90 N. J. L. 289, 100 Atl. 184. Neio York. — Towner v. Brooklyn Heights R. Co., 44 App. Div. 628, 60 N Y. Siippl. 289; Knight v. Lanier, 69 App. J)iv. 454, 74 N. Y. Suppl. 999; Murphy v. Wait, 102 App. Div. 121, 92 N. Y. Suppl. 253; Kalb v. Redwood, 147 App. Div. 77, 131 N. Y. Suppl. 789; Caesar v. Fifth Ave. Stage Co., 45 Misc. 331, 90 N. Y. Suppl. 359; Ackerman v. Fifth Ave. Coach Co., 175 App. Div. 508, 162 N. Y. Suppl. 49. Pennsylvania. — ^Virgilio v. Walker, 254 Pa. St. 241, 98 Atl. 815. Rhode Island. — Marsh v. Boyden, 33 R. L 519, 82 Atl. 393. Utah. — McFarlane v. Winters, 47 Utah, 598, 155 Pac. 437; Musgrave v. Studobaker Bros. Co. of Utah, 48 Utah, 410, 160 Pac. 117; Richards v. Palace T^undrt' Co.. 186 Pac. 439. Vermont. — ^Aiken v. Motcalf, 90 Vt. 196. 97 Atl. 669. Washington. — ^Stephenson v. Parton, 8') Wash. 653, 155 Pac. 147. Wisconsin. — Weber v. tSwallow, 136 Wis. 46, 116 N. W- 844: Raymond v. Sauk County, 167 Wis. 125, 166 N. W. 29. 7. Alabama. — McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Reavt>fl v. May- bank, 193 Ala. 614, 69 So. 137; White Swan Laundry Co. v. Wehran, 202 Ala. 87, 79 So. 479; Hester v. Hall (Ala. App.), 81 So. 361. Arkansas. — Carter v. Brown, 136 Ark. 23, 206 S. W. 71; Bona v. S. R. Tliomas Auto Co., 137 Ark. 217, 208 S. W. 306. California. — Bellinger v. Hughes. 31 (."al. App. 464, 160 Pac. 838. Colorado. — Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 Pac. 460, Ann. Cas. 1914 B. 29. Connecticut. — Brown v. New Haven Taxicab Co., 105 Atl. 706. Delaware. — ^Trimble v. Philadelphia B. & W. R. Co., 4 BoTce (Del.) 519, 89 Atl. 370. Georgia. — Giles v. Voiles, 144 Ga. 853, 88 S. R 207; O'Dowd v. Newn- liam, 13 Ga. App. 220, 80 S. E. 36. Illinois. — Kessler v. Washburn, 157 111. App. 532. Indiana. — Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656; Brinkman v. Pacholke. 41 Ind. App. 662, 84 N. E. 762; Ft. Wayne & N. I. Tr. Co. V. Schoeff, 56 Ind. App. 540, 105 N. E. 924; Central Indiana Ry. Co. V. Wishard (Ind. App.), 104 N. E. 593; Martin v. Lilley, 188 Ind. 139, 121 N. E. 443. loica. — Delfs v. Dunshee. 143 Iowa. 381, 122 N. W. 236: Scott v. O'lvcary, 157 Iowa, 222. 138 N. W. 512; Ken- dall V. City of Dcs Moines, 183 Iowa, 866. 167 N. W. 864. "One may travel in a motor vehicle on the streets; but, in doing so. the care exacted neces- sarily depends somewhat on the rate of speed, sixe and appearance, manner of movement, noise, and the like of 320 The Law of Automobiles. vehicles traveling on the same road or approaching the same highway intersection, it is the duty of each to exercise reason- able precautions to avoid a collision.^ The law does not de- nounce motor vehicles as such on the public ways. For so long as they are constructed and propelled in a manner con- sistent with the use of the highways, and are calculated to subserve the public as a beneficial means of transportation with reasonable safety to travelers by ordinary modes, they have equal rights with other vehicles in common use to occupy the streets and roads.^ While an automobile is not an instru- ment of such a character as to render the owner or driver liable for an injury caused in consequence of its operation," its use, nevertheless, should be accompanied with that degree such vehicle, as well as the means of locomotion of others on the highway." Delfs V. Dunshee, 143 Iowa, 381, 122 N. W. 236. Kansas. — Super v. Modell Twp., 88 Kans. 698, 129 Pac. 1162; Arrington V. Horner, 88 Kans. 817, 129 Pac. 1159. Kentucky. — Weidner v. Otter, 171 Ky. 167, 188 S. W. 335. Maryland. — Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875; Winner v. Lin- ton, 120 Md. 276, 87 Atl, 674; Ameri- can Express Cb. v. Terry, 126 Md. 254, 94 Atl. 1026. Massachusetts. — 'Commonwealth v. Horsfall, 213 Mass. 232, 100 N. E. 362. Michigan. — Winchowski V. Dodge, 183 Mich. 303, 149 N. W. 1061; Sim- mons V. Peterson, 207 Mich. 508, 174 N. W. 536. Missouri. — Edmonston v. Barrock (Mo. App.), 230 S. W. 650. New Hampshire. — See Goge v. Bos- ton & M. R. R., 77 N". H. 289, 90 Atl. 855. New Jersey. — Jaeobson v. New York L. & W. R. Co., 87 N. J. L. 378, 94 Atl. 577; Spawn v. Goldberg, 110 Atl. 565. North Carolina. — Manly v. Aber- nathy, 167 N. Car. 220, 83 S. E. 343. Oklahoma. — St. Louis & S. F. R. Co. V. Model Laundry, 42 Okla. 501, 141 Pac. 970. Pennsylvania, — Lorah v. Rinehart, 243 Pa. St. 231, 89 Atl. 967; Follmer V. Pennsylvania R. Co., 246 Pa. 367, 92 Atl. 340. Rhode Island. — Greenhalch v. Bar- ber, 104 Atl. 769, Tennessee. — iLeach .v. Asman, 130 Tenn. 510, 172 S. W. 303. , rearojs.— Houston Belt & T. R. Co. v. Rucker (Tex. Civ.), 167 S. W, 301; Adams v, Galveston H. & S. A. R. Co. (Tex. Civ.), 164 S. W. 853; Ward v. C^they (Civ. App), 210 S. W. 289. Washington. — Chase v. Seattle Taxi- cab & Transfer Co., 78 Wash, 537, 139 Pac. 499; Stephenson v. Parton, 89 Wash, 653, 155 Pac. 147. West Virginia. — Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919. See also section 278. 8. Bidwell v. Los Angeles, etc. Ry. Co., 169 Cal. 780, 148 Pac. 197; Elgin Dairy Co. v. Shepard (Ind. App.), 103 N". E. 433; Shields v. Fairchild, 130 La. 648. 58 So. 497 ; Gilbert v. Burque, 72 N. H. 521, 57 Atl. 97; Towner v. Brooklyn Heights R. Co., 44 App. Div. 628, 60 N. Y. Suppl. 289; Weber v. Swallow, 136 Wis. 46, 116 N. W. 844. And see sections 361, 391. 9. Section 48. 10. Section 623. Negligence in Operation of Motor Vehicles. 321 of prudence in the management and consideration for the rights of others which is consistent with their safety." Sec. 278. Degree of care required of automobilists — com- mensurate with dangers. It is a general rule in the law of negligence that the criterion of *' reasonable" or "ordinary" care varies according to the circumstances. Wliat would constitute reasonable care in one case might be considered recklessness under other circum- stances. In other words, the care to be exercised under given circumstances is commensurate to the dangers involved.^^ 11. Ternes v. Giles. 93 Kana. 140, 435, 144 Pae. 1014; Shinkle v. MoCul- lough, 116 Ky. 960, 77 S. W. 196; Knight V. Lanier, 69 N. Y. App. Div. 454, 74 N. Y. Suppl. 999. "Travelers upon a public highway owe a duty to others traveling upon such highway, and that duty requires them to so rea- sonably conduct themselves in the use of the highway as that they will not injure others wlio are also traveling upon such highway." Dozier v. Woods, 190 Ala. 279, 67 So. 283. "The rules governing the degree of care which in- dividuals upon the highway should exercise for mutual safety are well settled and relate in their application to the danger to be reasonably appre- hended under every-varying conditions of exposure and peril. While the au- tomobile is a lawful means of convey- ance and has equal rights upon the road with the horse and carriage, its use cannot be lawfully countenanced unless accompanied with that degree of prudence in management and con- sideration for the rights of others which is consistent with safety." Knight V. Lanior, 69 N. Y. App. Div. 454, 74 N. Y. Suppl. 999. "It can no longer be questioned that the use of automobiles or motor cars, such as the one here in question, upon streets and other public highways, is lawful. Such vehicles furnish a convenient and use- 21 tul mode of travel and transi>ortation not incompatible with the proper use of the highway by others; but in con- sequence of the great speed with which they may be run; their size and gen- eral appearance, the noises made in tbeir use, the infrequency of their use in particular localities, and the cir eumstances of the particular occasions of their use, commensurate care, skill and diligence must be required of the [icrsona employing such means of transportation. The general rule ap- plies that he must so use his own as not to injure another. Automobiles may be used with safety to other users of the highway, and in their proper use upon the highways their owners have equal rights with the users of other vehicles properly upon the high- way. The law recognizes such right of use upon general principles, and at the time of the appellee's injury the right was expressly recognized by stat- ute." Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762. 12. "The terms 'ordinary care' and 'reasonable prudence,' as applied to the conduct and the affairs of men. are de- clared to have only a relative signi- ficance, depending upon the special cir- cumstances and surroundings of the I)articular case, and to defy arbitrary (lofinition. When a given state of facts is such that reasonable nion may 322 The Law of Automobiles. This general principle is applicable to the operation of motor vehicles in two ways. In the first place, the operation of auto- mohiles, on account of their speed, size and other character- istics, is attendant with greater danger to pedestrians and other travelers than is the movement of a horse-drawn carriage. Thus, it may be said that the care required of the driver of a motor vehicle is "commensurate" with the danger of such a machine.^2 r^j^-g ^^^y require that the driver shall at all times differ as to whether or not negligence intervened, as whether or not ordinary care and reasonable prudence char- acterized the actions and conduct of aii actor the determination of such question becomes a matter for the jury." White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479. 13. Alabama. — Reaves v. Maybank, 193 Ala. 614. 69 So. 137 ; McCray v. Sharpe, 188 Ala. 375, 66 So. 441. California. — Bellinger v. Hughes, 31 Cal. App. 464, 160 Pac. 838; Weihe v. Rathjen Mercantile Co., 34 Cal. App. 302, 167 Pac. 287. Colorado. — Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 Pac. 460, Ann. Cas. 1914 B 29. Delaware. — Brown v. City of Wil- mington, 4 Boyce, 492, 90 Atl. 44. Georgia. — O'Dowd v. Xewnham, 13 Ga. App. 220, 80 S. E. 36. Illinois. — Graham v. Hagmann, 270 111. 252, 110 N. E. 337. "The degree of care and caution to be used in each case depends upon the character of the vehicle used and the locality and sur- roundings in which it is being used. The more dangerous the character of the vehicle and the greater its liability to do injury to others, the higher is the degree of care and caution to be exercised by the person charged with the duty of its operation." Graham v. Hagmann, 270 111. 252, 110 N. E. 337. Indiana. — "It can no longer be ques tioned that the use of automobiles or motor ears, such as the one here in question, upon streets and other public highways, is lawful. Such vehicles furnish a convenient and useful mode cf travel and transportation not in- compatible with the proper use of the highway by others; but in consequence of the great speed with which they may be run, their size and general appear- ance, the noises made in their use, the infrequeney of their use in particular localities, and the circumstances of the particular occasions of their use, com- mensurate care, skill and diligence must be required of the persons em- ploying such means of transportation." Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762: loica. — Delfs v. Dunshee, 143 Iowa, 381, 122 N. W. 236; Scott v. O'Leary, 157 Iowa, 222, 138 K W. 512; Bish- ard v. Engelbcek, 180 Iowa, 1132, 164 N. W. 203. Kentucky. — CoUett v. Standard Oil Co., 186 Ky. 142, 216 S. W. 356. .Maine. — Savoy v. McLeod, 111 Me. 234, 88 Atl. 721; Bragdon v. Kellogg, 118 Me. 42, 105 Atl. 433. Maryland. — Winner v. Linton, 120 Md. 276, 87 Atl. 674; Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. Massachusetts. — Commonwealth v. Horsfall, 213 Mass. 232, 100 N. E. 362. Michigan. — Winckowski v. Dodge, 183 Midi. 303, 149 N. W. 1061; Pat- terson v. Wagner, 204 Mich. 593, 171 X. W. 356. Missouri. — "The possession of a powerful and dangerous vehicle, in- stead of giving defendant any right of way, imposed on him the duty of em- ploying care commensurate to the risk of danger to others endangered by the Negligexc^e in Operation of >roTOR Vehicles. 323 use greater diligence than would be imposed on the driver of a horse and wagon or on other travelers.^* Secondly, the danger from the operation of a motor vehicle may he greater at some places than at others. The jirecautions which are sufficient when used by an operator running along a rural highway with few travelers are entirely insufficient when driving along a crowded city street. In this way, the care of the driver must be commensurate with the dangers arising from the surrounding circumstances.^ Thus, it is sometimes presence of his vehicle on tlio public thoroughfare." Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122. Pennsylvania. — Lorah v. Rinehart, 243 Pa. 231. 89 Atl. 967. Tennessee. — Leach v. Asman. 130 Tenn. 510, 172 S. VV. 303. Vermont. — "The defendant was driv- ing a machine, which on account of its speed, weight, and q\iietness was capable of doing great damage, and the law puts upon one so situated a greater and more constant caution. He was bound to exercise care commensurate with the dangers arising from the lack of it." Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669. Washington. — Chase v. Seattle Taxi- cab & Transfer Co., 78 Wash. 537, 139 Pac. 499 Canada. — Osborne v. Landis, 34 W. L. R. 118. 14. Instruction. — The following in- struction, relative to the comparative degree of care required of automo- bilists and pedestrians, has been ap- proved: "While both parties are charged with the same degree of care, . . . the amount of care ex- acted of the driver of a motor vehicle is far greater than the amount of care exacted of the foot passengers " Weihe V. Rathjen Mercantile Co.. 34 Cal. App. 302, 167 Pae. 287, the court say- ing: ".\s said by covinsol for tlio ]Oainti(r, the degree of care exacted of both users of the highway is tlie same; the aiuonnt of caro must of necessity vary in order that the degree may not. The driver of a motor vehicle — a dan gerous instrumentality capable of in Hicting fatal injuries — is charged with a greater amount of care than the pedestrian, in order that he may be hound to the same standard of ordin- ary care. 'Ordinary care' and 'negli- gence' are relative terms" 15. Alabama. — McCray v. Sbarpe, 188 Ala. 375. 66 So. 441; Reaves v. Maybank. 193 Ala. 614, 69 So. 137; Karpeles v. City Ice Delivery Co.. 198 Ala. 449, 73 So. 642; White Swan Laundry Co. v. Wehrhan. 202 Ala. S7, 79 So. 479. "What is the exercise of reasonable care by an operator of a motor vehicle on public highways de- pends upon the circumstances of the particular case, as bearing upon the conduct and the affairs of men; for what may be deemed rcasonalde and prudent in one case may, under differ ent circumstances and surroundings, be gross negligence" White Swan Laundry Co. v. Wehrhan. 202 \la. 87. 79 So. 479. Arkansa.s. — Bona v. S. R. Thomas Auto Co., 137 Ark. 217. 208 S. W. 306. California. — Bellinger v. Iluglies. 31 Cal. App. 464. 160 Pac. 838. Colorado. — Phillips v. Denver City Tramway Co., 53 Colo. 4.'i8. 128 Pac. 460, Ann. Cas. 1914 B. 29. See also. Kent V. Tweworgy, 22 Colo. App. 141. 125 Pac. 128. Conncvtirut. — Brown \ "^i \'' Haven Taxicab Co.. 105 Atl. 706. "While owners of automobiles have the right to drive them upon publi>' streets, yet the proper protection of 324 The Law of Automobiles. said that higher care is required of an automobile traveler the equal rights of all to use the high- ways necessarily requires the adoption of different regulations for the differ- ent 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, driving of an automobile at a higli rate of speed through city streets at times when and places where other vehicles are constantly passing, and men, women and children are liable to be crossing; around corners at the inter- section of streets, or in passing 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 ob- serve an approaching automobile, the driver 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 auch 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." Irwin V. Judge, 81 Conn. 492, 71 Atl. 572. Delaioare. — Cecchi v. Lindsay, 1 Boyce, 185, 75 Atl. 376, reversed on other grounds, 80 Atl. 523; Brown v. City of Wilmington, 4 Boyce, 492, 90 Atl. 44. Georgia. — O'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36. Illinois. — Graham v. Hagamann, 270 111. 252. 110 N. E. 337. Indiana. — Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 616, 1 L. B. A. (N. S.) 238, 6 Ann. Gas. 656. loioa. — Scott v. O'Leary, 157 Iowa, 222, 138 N. W. 512; Bishard v. Engcl- beck. 180 Iowa, 1132, 164 N. W. 803; Guy v. Des Moines City Ry. Co., 180 N. W. 294. Ma4ne. — Savoy v. McLeod, 111 Me. 234, 88 Atl. 721. Maryland. — Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875; Winner v. Lin- ton, 120 Md. 276, 87 Atl. 674. Massachusetts. — Commonwealth v. Horsfall, 213 Mass. 232, 100 N. E. 368. Michigan. — \Vinckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061; Pat- terson V. Wagner, 204 Mich. 593, 171 N. W. 356. Missouri. — Ginter v. O'Donoghue (Mo. App.), 179 S. W. 732. North Carolina. — Manly v. Aber- nathy, 167 N. Oar. 220, 83 S. E. 343; Cates V. Hall, 171 N. Car. 360, 88 S. E 524. Oklahoma. — Whit© v. Rukes, 56 Okla. 476, 155 Pac. 1184. Pennsylvania. — Lorah v. Rinehart, 243 Pa. 231, 89 Atl. 967. South Carolina. — North State Lum- ber Co. V. Charleston, etc. Co., 105 S. E. 406. Tennessee. — Leach v. Asman, 130 Tenn. 510, 172 S. W. 303; Cocoa Cola Bottling Works v. Brown, 139 Tenn. 640, 202 S. W. 926. Utah. — "In this case the driver of the autotruck was required to exercise ordinary and reasonable care and vigilance under the conditions and cir- cumstances surrounding him. The law under certain conditions and circum- stances requires greater vigilance and care on the part of tlie operator of a vehicle, and especially of an autoraobible in order to constitute ordinary care and vigilance than under other condi- tions and circumstances. If one oper- ates a.n auto vehicle, which is a swift and silently moving machine, in a crowded city street, a high degree of care and vigilance is required, and the driver should not relax that care and vigilance, but keep a constant lookout t-) prevent collisions with and injury Negligence in Operation of Motor Vehiclk: 325 when he is approaching a street intersection.^* So, too, it has been held proper for the presiding judge to charge the jury that in busy streets "exceeding carefulness" is required on the part of the driver of an automobile." And greater earn may be required when there are children playing in the streets,^^ or when crossing a railway track,^^ or passing a street car,^'' to otherB. But even in a crowded street a greater degree of care and vigilance is required in approaching intersections and crossings where both pedestrians and vehicles of all kinds have a right to pass both ways than is the case between street crossings. The care and vigilance that is required must alwaj's measure up to the stand- ard required by law, which is to exer- cise ordinary and reasonable care un- der all the circumstances. The exer- cise of ordinary and reasonable care, therefore, means that degree of care which the circumstances and sur- roundings require, and which is com- mensurate with the danger that may be encountered." Richards v. Palace Laundry Co. (Utah), 186 Pac. 439. Washington. — Qiase v. Seattle Taxicab & Transfer Co., 78 Wash. 537, J39 Pac. 499. le. Section 279. 17. Dorake v. Gunning, 62 Wash. 629, 114 Pac. 436. "The operation of an automobile upon the crowded streets of a city necessitates exceeding care- fulness on the part of the driver. Mov- ing quietly as it does, without the noise which accompanies the movement of a street car or other ordinary heavy ve- hicles, it is necessary that caution should be continuously exercised to avoid collision with pedestrians un- aware of its approacli. The speed should be limited, warning of ap- proach given, and skill and care in its management so exercised as to anti- cipate such collision as the nature of the machine and the locality might sngg»st as liable to occur in the ab- sence of such precautions. The pedes- trian must also use such care as an ordinary prudent man would use un- der like circumstances." Lampe v. Jaoobsen, 46 Wash. 533, 90 Pac. 654. 18. Thies v. Thomas, 77 N. Y. Suppl. 276; State v. Gray (N. Car.), 104 S. E. 647. And see section 418. Instruction requiring higher care. — An instruction to the effect that the driver of an automobile is required to exercise a higher degree of care at a place in a street where school children are congregated at certain hours in the day than at a point where pedes- trians are fewer and the travel limited. Jias been held to be erroneous and mis- leading as requiring the defendant to exercise more than ordinary care. Miller v. Eversole, 184 111. App. 362. wherein it was said: "Appellant was not required to use a higher degree of care at one place than another, but he was only required to use ordinary care wherever he might be. While it is a correct proposition that what might be ordinary care where there were no children or persons crossing a street would not be ordinary care and might bo negligence where there were chil- dren and a crowded street, yet or dinary care is all he was required to use, and ordinary care is such care «.•« an ordinary reasonable and prudent person would tise under all circum- stances and conditions existing at the time and place and which are or ought to be known to the party." 19. Helvey v. Princeton Power Co. (W. Va.), 99 S. E. 180. 20. Rose v. Clark. 21 Man. (Canada) 635. 326 The Law or Automobiles. Sec. 279. Degree of care required ol automobilists — higher care at street crossings. It is too clear for dispute that the operation of an auto- mobile is attendant with greater danger to other travelers at street crossings than at points between crossings. Under the rule that the care to be taken by the driver of such a machine is connnensurate with the dangers to be encountered,-^ it may properly be said that the care to be observed by the driver is greater at such points.^^ But some courts, giving an elastic interpretation to the expression ''reasonable care" prefer to define the degree of care at such points as ' ' reasonable ' ' care under the circumstances.^^ In using the streets and high- 21. Section 278. 22. 'Cecchi v. Lindsay. 1 Boyce ^Del.) 185, 73 Atl. 376, reversed, 80 Atl. 523; Grier v. Samuel. 4 Boyce ^l>el.) 106. 86 Atl. 209; Brown v. CitJ of Wilmington. 4 Boyce (Del.) 492, 90 All. 44; Virgilio v. Walker, 254 Pa. St. 241, 98 Atl. 815; Richards v. Palace Laundry Co. (Utah), 186 Pae. 439; Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 Pac. 99. "Greater care is required at street crossings and in the more crowded streets of a city til an in the less obstructed streets in the open or suburban parts. There is a like duty of exercising reasonable care on the part of the pedestrian. The person having the management of the vehicle and the traveler on foot are both required to use such reasonable care as the circumstances of the case demand, an exercise of greater care on the part of each being required where there is an increase of danger." Brown V. City of Wilmington, 4 Boyce (Del.) 492, 90 Atl. 44. '•Unlike street cars or railroad trains, which in their noisy progress are confined to the nar- row line of their rail tracks, automo- biles, with practically equal capacity lor speed, can range the road in sub- stantial silence. They can and do traverse the streets at much greater speed, with much less noise, than other liighway vehicles in common use, and, on the other hand, can be more surely and easily controlled by those experi- enced in their use. The duty and re- sponsibility of those driving them should be, and is, proportioned to the possibilities and dangers attending the use upon the public highways of such an instrumentality of travel and transportation. It is but a rational rule which emphasizes the driver's duty of special vigilance at crossing points on city streets where the right of passage is not only free and com- mon to all, but in common and fre- quent use both by pedestrians and ve- hicles. While the duties of reasonable care for their own safety and that of others are imposed upon both pedes- trian and driver, the driver's compara- tive personal safety in case of collision with a pedestrian is not to be over- looked in measuring his duty to exer- cise commensurate care for the safety of others." Patterson v. Wagner, 204 Mich. 593, 171 X. W. 356. " Intersecting highways." — A statute relative to the operation of motor ve- hicles at interesting highways has been held applicable where a street ran to, but not across, another street. Manly v. Abernathy, 167 N. Car. 220. S3 S. E. 343. 23. A charge to the jury that the Negligence in Operation of Motor Vehicles. 32 ( ways, an automobilist does so \vith the knowledge that at street intersections other vehicles may approach to cross or turn into the one over which he is traveling, and that at such points crosswalks are ordinarily provided for the use of pedestrians. He should, therefore, operate his car with that degree of care which is consistent with the conditions thus existing, the rate of speed and his control over the car vary- ing according to the traffic at the particular place.^* A\^ere there is an obstruction to an automobilist 's view of a street crossing, he must exercise a degree of care such as a reason- ably prudent man would exercise under the same circum- stances, to avoid injury to pedestrians or other vehicles at such point '' The weather conditions also are a factor to be considered as bearing upon the question of the negligence of the driver of an automobile. Thus in the case of a blinding snow storm it may be difficult for either the driver or a pedes- trian to see, less so for the former where he is protected by a shield Under such circumstances more caution should be exercised bv him in the management of the car and considera- tion must be given to the less favorable conditions under which the pedestrian may be proceeding. A similar situation may exist in the case of a heavy rain storm.- Also in the case of ice or snow upon the crosswalks which make it more difficult for a person to walk and of necessity compel him to proceed at a slower pace, the operator of a car should exercise a degree of care which is consistent with the conditions presented. operation of an automobile requires defendant, held to ^-^^^^^ ^^^ the use of ordinary care, that it in- the issue. « -g\'";-- ^ ^;:f ^ ^Z eludes the duty of having the car un- iMlhngham. 162 Mich. 704. 1-7 N. ^. der control when approaching street 702. A 4.i,„f ^^fonHnnt driv- 24. Rowe V. Hammon. 172 Mo. App. intersections, and that defendant. on\ « ing an automobile, must use such care 203, 1.57 S. W. 880. asTan ordinarily prudent man .ould 25. Deputy v. Kimmell, .3 W. \a. have used, with further instructions 59.-.. 80 S. E. 919. concerning the duty of exercising due 26. Harting v. Knapwurst. 1.8 111. care on the part of both plaintifT .ind App. 409. 328 The Law of Automobiles. Sec. 280. Degree of care required of automobilists — higher care when driving on wrong side of highway. To a large extent the different traVelers along a highway rely on the obedience by other travelers of the recognized rules of the road. When one is traveling at variance with the law of the road, his conduct is charged with greater danger to other travelers. Hence, it may be said that, inasmuch as the danger of his conduct is greater, it is proper to impose on him a higher caution for the avoidance of collisions with others. Thus, it is held that one driving an automobile along the wrong side of a street or highway must exercise greater vigilance than if he were traveling on the proper side.^'^ Sec. 281. Degree of care required of automobilists — higher care imposed by statute. In some jurisdictions statutes have in form changed the degree of care to be exercised by one driving an automobile. Thus, in Missouri, a statute was formerly in force imposing on all persons owning, operating or controlling an automobile on a public highway the ''highest degree of care" that a very careful person would use to prevent injury to persons on the highway .28 The statute was repealed in 1917.2^ Such a statute may be deemed in derogation of the common law and 27. New York Tiansp. Co. v. Gar- 159 Mo. App. 20, 139 S. W. 248 ; Bong- side, 157 Fed. 521, 85 C. C. A. 285; ner v. Ziegenheim, 165 Mo. App. 326, Fahrney v. O'Donnell, 107 111. App. 147 S. W. 182; Hodges v. Chambers, 608; Heryford v. Spiteanfsky (Mo. 171 Mo. App. 563, 154 S. W. 429; Por- App.), 200 S. W. 123; Angell v. Lewis, ter v. Hetherington, 172 Mo. App. 502, 20 E. L 391, 39 Atl. 521; Segerstrom 158 S. W. 469; Huffa v. Dougherty, V. Lawrence, 64 Wash. 245, 116 Pae. 184 Mo. App. 374, 171 S. W. 17; Wil- 876; Osborne v. Landis, 34 W. L. E. liams v. Kansas City (Mo. App.), 177 (Canada) 118; Pluckwell v. Wilson, 5 S. W. 783; Young v. Bacon (Mo. C. & P. (Eng.) 375. "But a person on App.), 183 S. W. 1079; Priebe v. Cran- the wrong side of the way must always dall (Mo. App.), 187 S. W. 605; Mee- exercise a care commensurate with his nach v. Crawford (Mo.), 187 S. W. 879; position. This is usually a higher de- Dignum v. Weaver (Mo. App.), 204 S. gree of care than that required of him W. 566; Pullam v. Moore (Mo. App.), while on the correct side of the way." 218 S. W. 938; Yarvitz Dyeing & Segerstrom v. Lawrence, 64 Wash. 245, Cleaning Co. v. Erlenbach (Mo. App.), 116 Pac. 876. And see section 268. 221 S. W. 411. 28. Frankel v. Hudson, 271 Mo. 495, 29. See Edmonston v. Barrock (Mo. 196 S. W. 1121; Nicholas v. Kelley, App.), 230 S. W. 650. Negligence in Operation of Motor Vehicles. 329 hence entitled to receive a strict construction, but not so ♦strict as to defeat the obvious intention of the law makers.^ It applies to civil actions for damages, but not to criminal prose- cutions of the automobilist.^^ It prescribes a rule for the con- duct of the automobilist whether he is the plaintiff or the defendant in the action.^^ Hence, in an action for injuries sustained at a railroad^ or street railway^* crossing, his con- tributory negligence is determined on whether he has exer- cised the ''highest degree of care." It may place such obliga- tion on one controlling the ox)eration as well as on the driver.^^ As a general proposition, a statute imposing a certain degree of care or requiring certain precautions to be exercised by automobilists is to be construed as imposing cumulative re- quirements and not as abrogating the common law require- •ments of prudence.^" A statute requiring the automobilist to exercise every reasonable precaution is to be construed as meaning the precaution which a reasonable man would take in view of the danger to be apprehended, and adds little or nothing to the common law rule.^'' 30. Nicholas v. Kelley, 159 Mo. App. 20, 139 S. W. 248; Hopkins v. Sweeney Automobile School Co. (Mo. App.), 196 S. W. 772. Public highways. — The statute ap- plies, not only to public highways, but also to places "much used for travel." Denny v. Randall (Mo. App.), 202 S. W. 602. Animals on highways. — The statute furnishes a guide for an automobile when he is approaching an animal loose on the highway as well as one under control. PuUam v. Moore (Mo. App.), 218 S. W. 938. 31. State V. Horner. 266 Mo. 109. 180 S. W. 873. 32. Threadgill v. United Ry. Co. of St, Louis, 279 Mo. 466, 214 S. W. 161 ; Jackson v. Southwestern Bell Telcp. Co. (Mo.), 219 S. W. 655. Compare Hopkins v. Sweeney Automobile School Co. (Mo. App.), 196 S. W. 772; Hery- ford V. Spitcanfsky (Mo. App.), 200 S. W. 123. Contributory negligence of plaintiff. — A provision in the Missouri statute to the effect that the motorist shall not be liable when the injured person has been guilty of contributory negli- gence, does not have the effect of ab- rogating the humanitarian or last chance rule which are enforced in that State. Ottofy v. Mississippi Valley Trust Co., 197 Mo. App. 473, 196 S. W. 428. 33. Daniel v. Pryor (Mo.), 227 S. W. 102. Compare Advance Transfer Co. v. Chicago, etc., R. Co. (Mo. App.), 195 S. W. 566. 34. Threadgill v. United Rys. Co., 279 Mo. 466, 214 S. W. 161; Davis v. United Rys. Co. (Mo. App.), 218 S. W. 357. 35. Foy v. United Rys. Co. of St. I^ouis (Mo. App.), 226 S. "W. 325. 36. Giles v. Voiles, 144 Ga. 853, 88 S. E. 207. 37. Arrington v. Horner. 88 Kans. 817, 129 Pac. 1159. 330 The Law of Automobiles. Sec. 282. Degree of care required of automobilists — care by common carriers. In case of the owner of a motor vehicle or "jitney" carry- ing passengers for hire, as between such owner and his pas- sengers, the relation may be that of common carrier and pas- senger, and the degree of care to be exercised by the driver of the machine is governed by the law of carriers rather than by the law of negligence. The formula of care to be exercised by a carrier towards its passengers is generally expressed as the "highest degree of care."^^ But, as between the driver of the machine and other travelers or railroad or street railway companies, the precaution of the chauffeur is judged accord- ing to the formula of "ordinary" or "reasonable" care. 39 Sec. 283. Driver of auto not an insurer against accidents. Where injury arises from the operation of an automobile liability to respond in damages for such injury does not neces- sarily follow; but facts additional to the mere circumstance of injury must be shown. Some negligent act or omission on the part of the defendant must be shown, for neither the driver nor the owner of an automobile is an insurer against acci- dents arising from its operation.^" Ordinarily, the mere fact 38. Singer v. Martin, 96 Wash. 231, Taxicab Co., 178 Mich. 426, 144 N. W. 164 Pac. 1105. And see sections 169, 855; Barger v. Bissell, 188 Mich. 366, 179. 154 N. W. 107; Gardiner v. Studebaker 39. Southerh Ry. Co. v. Voughans Corp., 204 Mich. 313, 169 N. W. 82S. adm'r, 118 Va. 692, 88 S. E. 305, L. "Drivers upon highways are not held R. A. 1916E. 1222. as insurers against accidents arising 40. ArTcansas. — Millsaps v. Brogdon, from negligence of children or their 97 Ark. 469, 134 S. W. 632. parents, and though in law such neoj- Conneoticut. — Hyde v. Hubinger, 87 ligerce in a particular case may not Conn. 704. 87 Atl. 790; Radwick v. be a defense, as contributory negli- Goldstein, 90 Conn. 701, 98 Atl. 583. gerce, for a driver also guilty of ueg- Delaware. — Simeone v. Lindsay, 6 ligence, the fact of an accident does Penn. 224, 65 Atl. 778. tcjt establish liability or raise a pre- Georgia. — Giles v. Voiles, 144 Ga. sumption that the driver is negV 853, 88 S. E. 27. gent." Barger v. Bissell, 188 Mich. Zfl^sa*.— Arrington v. Horner, 88 366, 154 K W. 107. Kans. 817, 129 Pac. 1159. Nexv Tork. — Cantanno v. James A. l/«ri/Za»? d.—Havermale v. Houck, 122 Stevenson Co., 172 N. Y. App. Div. 252, Md. 82, 89 Atl. 314. 158 N. Y. Suppl. 335 ; Seaman v. Mott, Michigan. — Tolmie v. Woodward 110 N. Y. Suppl. 1040. Negligence in Operation of Motor Vehicles. that a pedestrian or a vehicle is struck and injured hy an automobile does not show that the injury was caused by the negligence of the autoniobilist.^' On tlie other liaiid, the mere fact of the collision does not show, ol' itself, that tlic injured person was guilty of contributory negligence/- The burden is upon the person injured to show that the driver or owner of the motor vehicle was guilty of negligence which was one of the proximate causes of the injury of which he complains." There may be, however, a few cases, wliere the happening of the accident raises a presumption that the driver of the motor vehicle has been guilty of negligence. Thus the doctrine of res ipsa loquitor may arise when the machine runs upon ;i sidewalk and strikes a pedestrian.''* Moreover, the violation Noi-th Dakota. — Vannett v. Cole, 170 N. W. 663. Washington. — ]\IeCaiiii v. Silkc. 75 Wash. 383, 134 Pac. 1063. Philippines. — Bernardo v. Legaspi, 29 Philippine Rep. 12. Erroneous instruction.— An instruc- tion on the trial of an action for the death of a horse by automobile to the effect that the operator of the ma- chine was required to use such care and caution as to prevent injury to the person and property of others rightly on the highway, is erroneous as making the operator an insurer. Petty V. Maddox. 100 111. App. 381. Similarly, it is erroneous to charge that "the degree of diligence which must be exercised in a particular ex- igency is such as is necessary to pre- vent injuring others." Giles v. Voiles, 144 Ga. 853, 88 S. E. 207. 41. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632; Diamond v. Weyer- haeuser, 178 Cal. 540, 174 Pac. 38; Barger v. Bissell, 188 Mich. 366. 154 N. W. 107; Winter v. Vnn Blarcom, 258 Mo. 418, 167 S. W. 408: Horo- witz V. Gottwalt (N. J. Law"), 102 Atl. 930; Vannett v. Cole (N. Dak.), 170 N. W. 663. 42. Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669. 43. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632; Diamond v. Weyer- haeuser (Cal.). 174 Pac. 38; Winter v. Van Blarcom, 258 Mo. 418, 167 S. W. 498. Statutory change.- The burden of proof may be shifted by statute to tho driver or owner. See the following cases construing a statute of Ontario having that effect. Marshall v. Qowana, 24 O. L. R. 522; Maitland v. McKen- zie, 28 O. L. R. 506; Hook v. Wylic, 10 O. W. N. 15, 237; White v. Heglcr, 29 D. L. R. 480; Bradshaw v. Conlin, 40 O. L. R. 496; Whitten v. Burtwell. 47 O. L. R. 210. 44. Ivins V. .Jacob, .'245 Fed. 892, wherein it was said: "The argument of counsel, which concedes that the cir- cumstances of the occurrence justify the inference of the negligence of some one, but not the negligence of the de- fendant, is a concession of everything, because one of the circumstances waa that the defendant was driving the car. If this automobile had been without warning driven upon the sidewalk, there striking a pedestrian, no one could doubt that it would not only 332 The Law of Automobiles. of a positive regulation^ or a rule of the road,^^ may consti- tute negligence, or raise such a presumption of negligence, so that a prima facie case is thereby presented. Sec. 284. Unavoidable accident — in general. An accident to a traveler which is occasioned by an auto- mobile, when no negligence or wrongful act on the part of the owner or driver of the machine is shown, can be classed as an unavoidable accident, and no liability will attach to the driver or owner."*^ This proposition necessarily follows from the rule that automobilists are not insurers.'*^ The general principle is well illustrated in cases where the driver of an automobile is proceeding with due care along a street and a justify, but compel, a finding of negli- gence. This inference of fact is not stayed by the possibility that it might not have been intentionally driven upon the sidewalk. If such possibility were suggested, the answer would be: Show me that, and I am prepared to be- lieve it; but, unless you do, I must hold you to be in fault. This attitude is sensible and just, and in accord with the accepted principle of law of evi- dence that he who has control of the proofs shall produce them. If the car was beyond control, the driver knows it, and can offer evidence of the fact. All the pedestrian could do would be to know the fact that the car was where it should not be driven, and that the circumstances indicated negligence. This constitutes pri/ma facie proof." Res ipsa loquitor.— Wliere the plain- tiff tied his horse at a hitching post at the curb of a street when a few feet further on an automobile was standing on the opposite side of the street, and a few minutes afterwards the plaintiff discovered that his horse had been injured by the automobile, it was held that under the doctrine of res ipsa loquitor, the burden of ex- plaining that the accident did not oc- cur from want of care devolved upon the defendant. Whitewell v. Wolf, 127 Minn. 529, 149 N. W. 299. 45. Section 297. 46. Section 269. 47. Delaware. — Simeone v. Lindsay, 6 Penn. 224, 65 Atl. 778; Brown v. City of Wilmington, 4 Boyce, 492, 90 Atl. 441; Traverse v. Hartman, 5 Boyce, 302, 92 Atl. 855. Michigan. — Harnau v. Haight, 189 Mich. 600, 155 N. W. 563. Missouri. — Winter v. Van Blarom, 258 Mo. 418, 167 S. W. 498. New Yorlc. — Jordan v. American Sight Seeing Coach Co., 129 N. Y. App. Div. 313, 113 N. Y. Suppl. 786; Cas- pell V. New York Transp. Co., 150 N. Y. App. Div. 723, 135 N. Y. Suppl. 691 ; Cantanno v. James A. Stevenson Co., 172 N. Y. App. Div. 252, 158 N. Y. Suppl. 335 ; Dudley v. Raymond, 148 App. Div. 886, 133 N. Y. Suppl. 17. North Carolina. — Baldwin v. Smith- erman, 171 N. Car. 772, 88 S. E. 854. Pennsylvania.— Stahil. x. Sollenber- ger, 246 Pa. St. 525, 92 Atl. 720; Mc- MUlen V. Strathmann, 264 Pa. St. 131, 107 Atl. 332. Wisconsin. — Linden v. Miller (Wis.), 177 N. W. 909. 48. Section 283. Negligence in Operation of Motor Vehicles. 333 child suddenly darts in front of the machine so close thereto that the driver, although using every means to avoid the col- lision, is unable to do so.'*^ Collisions with other vehicles may happen when neither party can be said to be negligent, and in such a case the injury is said to be the result of an un- avoidable accident.^** The driver of an automobile is not re- quired to anticipate that a street railway passenger will jump from a moving street car at a place other than a regular stop- ping point; and when such a person jumps off so close to the automobile that the driver cannot with the exercise of reason- able care avoid a collision, the driver is not ordinarily charge- able with negligence.^^ Sec. 285. Unavoidable accident — conduct of driver in emer- gency. The law does not require supernatural poise or self control on the part of the driver of a motor vehicle ; and, if some un- foreseen emergency occurs which naturally would overpower the judgment of an ordinarily careful driver, so that momen- tarily he is not capable of intelligent action, he may not be negligent.^^ But no one should drive an automobile amid the dangers likely to be encountered on the modern highways who is not reasonably steady of nerve, quick in forming an opinion and calm in executing a design.^ Whether under cir- cumstances of emergency the conduct of the operator of the vehicle measures up to the standard of reasonable care, is generally a question for the jury." In an emergency, the 49. Section 419. 52. Rhodes v. Firestone Tire & Rub- 50. Collision with mule. — Where an her Co. (Cal. App.), 197 Pac. 392; automobile which was properly equip- Massie v. Barker, 224 Mass. 420, 113 ped and under control was passing a N. E. 199 ; Barger v. Bissell, 188 Mich, mule with its owner riding thereon, and 366, 154 N. W. 107. the mule suddenly backed directly 53. Massie v. Barker, 224 Mass. against the machine, the driver of the 420, 113 N. E. 199. machine used every effort to avoid the 54. Lawrence v. Goodwill (Cal. injury but was unable to do so, the App.). 186 Pac. 781; Massie v. Barker, owner of the mule cannot recover for 224 Mass. 420, 113 N. E. 199: Hood v. his injuries. Baldwin v. Smitherraan, Stowe, 191 N. Y. App. Div. 614, 181 171 N. Car. 772, 88 S. E. 854. N. Y. Suppl. 734; Chiappone v. Greene- 51. Brown v. Brashear, 22 Cal. App. baum, 189 N. Y. App. Div. 579. 178 135, 133 Pac. SO.'); Starr v. Schenck. N. Y. Suppl. 854; Lee v. Donnelly 25 Mont. L. Rep. (Pa.) 18. (Vt.). 113 Atl. 542. 334 The Law of Automobiles. safety of liiimaii beings should be preferred to that of an ani- mal or inanimate property in the street.^^ But one cannot escape liability for the negligent operation of an automobile on the ground that he acted in an emergency, when it appears that the emergency was created by his own negligence; or if, by the exercise of reasonable care, he might have avoided the injury notwithstanding the emergency/^ Sec. 286. Unavoidable accident — avoidance of dangerous situation. A driver of a vehicle in a street must exercise care to pre- vent reaching a point from which he is unable to extricate himself without colliding with another vehicle, and, omitting such duty, the greatest vigilance on his part when the danger arises will not avail him." This principle is not to be extended to include those cases where a driver by the negligent opera- tion of his ear is confronted with one danger and in his en- deavor to avoid it causes the injury in question. 58 Sec. 287. Unavoidable accident — precedent negligence may bar claim of unavoidable accident. The assertion of an automobilist that an accident was un- avoidable may fail where the automobilist was guilty of negli- gence prior to the accident.^^ To illustrate, ordinarily when a child suddenly darts in front of a moving vehicle so close thereto that the driver cannot stop the machine to avoid a collision, the automobilist is not deemed guilty of negligence,"^" but the claim that the accident was unavoidable may fail, if the machine just prior to the creation of the danger was being 55. See section 365. Companr, 127 App. Div. (N. Y.) 307. 56. Carpenter v. Campbell Automo- 111 K Y. Suppl. 284 ; Yahnke v. Lange, bile Co., 159 Iowa, 52, 140 N. W. 225 ; 168 Wis. 512, 170 N. W. 722. See also Adams v. Pariish (Ky.), 225 S. W. section 368. 467; Hoocl v. Stowe, 191 N. Y. App. 58. Mahegan v. Faber, 158 Wis. 645, Div. 614, 181 N. Y. Suppl. 734; Solo- 149 N. W. 397. mon V. Braufman, 175 N. Y. Suppl. 59. Hellan v. Supply Laundry Co., 835; Allen v. Schultz, 107 Wasli. 393, 94 Wash. 683, 163 Pac. 9; Yahnke v. 181 Pac. 916, 6 A. L. R. 676n ; Elliott Lange, 168 Wis. 512, 170 X. W. 722. V. Fabra, 10 O. W. N. (Canada) 41. 60. Section 410. 57. Altenkirch v. National Biscuit Negligence in OrEUATiox of Motor Vehicles. 335 run at an excessive speed. The tact that he could not have foreseen the danger of the injury will not relieve him for lia- bility for negligence based on the excessive speed.*""^ Thus, in an action for injuries to an electric car struck by a heavy auto- mobile while turning a corner, the defendant's liability may be sustained on the ground that he turned the corner at an excessive speed, though he claims that the accident was due to the driver's attempt to avoid cliildren on the cro.'^swalk.^^ Where, because of his own negligence, a driver is placed in such a position that it becomes necessary for him to change the course of his machine to avoid an injury to one person, and in so doing he injures another person, he may be liable to the latter.^2 , Sec. 288. Unavoidable accident — moving automobile under directions of police officer. The fact that the driver of an automobile moves the machine by the order of a traffic policeman, does not excuse him from liability for subsequent negligent driving.'^* And the fact that one is authorized by a signal from a traffic officer to proceed across a street intersection, does not absolve him from the duty of exercising reasonable care in making the passage.''^ Sec. 289. Proximate cause — in general. One of the fundamental ])rinciples of the law of negligence is that liability for acts of negligence follows only so far as the injuries are the proximate result of the negligence. This rule applies in cases of automobile accidents, and it is held that the owner or driver of a motor vehicle is liable, assum- ing his negligence, only for such injuries as proximately re suit from the negligent acts.''^ On the other hand, the liability 61. Schumacher v. Meinrath. 177 111. 65. Walmer-Roberts v. Hennessey App. 530; Delohery V. Quinlan. 210 111. (Iowa), 181 X. W. 798; Melville v. App. 321. Rollwagre. 171 Ky. fi07. 188 S. W. 638. 62. Coulon V. Trenkhorst, lOT) 111. 66. Arkansas.— Tex&s Motor Co. v. App. 335. Biiffington. 13^ Ark. 320. 203 S. W. 63. Oakshott v. Powell. 6 Alta. 1013. (Canada) 178, 12 D. L. R. 148. CaUfomiti.—Wciiycr v. Cartor. 28 64. Melville v. RollwaffO. 171 Ky. Cal. App. 241. 152 Pac. 323. 607. 188 S. W. 63S. 336 The Law of Automobiles. of the defending party generally extends to all injuries which can be found to be the proximate result of the negligent acts ; and it is sufficient if it appears that the negligence of the de- fendant would probably cause harm to some person, though the precise form in which it in fact resulted could not have been forseen." The fact that the driver of an automobile has violated a statute regulating his conduct,*'^ or has infringed the law of road applicable to his movements,^^ does not render him liable for injuries sustained by another traveler, unless the injuries proximately result from the wrongful act. The fact that the owner of the machine has not complied with the law pertaining to the registration of the machine is not, as a general rule, considered a proximate cause of an injury result- ing either to or from the machine.''^ And, in an action for damages to an automobile sustained in a collision at a railroad crossing, the fact that the chauffeur did not have his badge in sight as required by statute, is not considered an efficient cause of the accident and does not preclude the owner from recovery.'^ Similarly, the fact that the driver of a machine does not stop after an accident and give information as to his identity and that he thereby violates a criminal statute rela- tive to such conduct, is no evidence of his responsibility for Illmois. — Kessler v. Washburn, 157 North Carolina. — Taylor v. Stewart, m. App. 532. ' 172 N. Car. 203, 90 S. E. 134. Iowa. — Herdman v. Zwart. 167 Texas. — Schoellkopf Saddlery Co. v. Iowa, 500, 149 N. W. 631. Crawley (Civ. App.), 203 S. W. 1172; Kansas. — Arrington v. Horner, 88 Texas, etc., Co. v. Harrington (Civ. Kans. 817, 129 Pac. 1159. App.), 209 S. W. 685. Kentucky. — Couglilin v. Mark, 173 It is a question for the jury Ky. 728, 191 S. W. 503. whether the injuries for which the ac- Michiffan. — Johnston v. Cornelius, tion is brought were sustained at the 200 Mich. 209. 166 N. W. 983, L. R. A. time of the collision or subsequent 1918D 880. thereto. Grimes v. Cathcart, 69 Wash. Missouri. — Priebe v. Crandall (Mo. 519, 125 Pac. 764. See also section App.), 187 S. W. 605. 359. Neto York.- — Jerome v. Hawley, 147 67. Regan v. Cummings, 228 Mass. App. Div. 475, 131 K Y. Snppl. 897; 414, 117 N. E. 800. Wolcott V. Renault Selling Branch, 68. Section 300. 175 App. Div. 858, 162 N. Y. Suppl. 69. Section 369. 496; Cohen v. Goodman & Sons, Inc., 70. Section 126, 189 App. I)iv. 209. 178 N. Y. Suppl. 71. Latham v. Cleveland, etc., R. Co., 528. 164 111. App. 559. Negligence in Operation of Motor Vehicles. 337 the accident.''^ So, too, 'the fact that one takes a vehicle with- out the permission of the o^^^ler and thereby violates a crimi- nal statute, does not necessarily render him liable for injuries sustained by a pedestrian through its operation,'^ The appli- cation of the proximate cause doctrine is discussed in detail in other parts of this book.''* Sec. 290. Proximate cause — concurring negligence of third party. When the negligence of the defendant is shoAvn, the fact that a third person was also guilty of negligence which contributed to the injury of the plaintiff, will not relieve the defendant from liability for his negligence."^ This principle is well illus- trated in cases where the negligence of the driver of an auto- mobile combines with the negligence of a railroad, street rail- way company, or driver of another vehicle, so that injury is occasioned to a passenger in the automobile, and it is gen- erally held that the negligence of the driver thereof is not to be imputed to the passenger and does not deprive such pas- senger of his remedy against the railroad or other negligent defendant.'*^ Where the negligence of the driver of an auto- mobile and the negligence of a pedestrian whom he was try- ing to avoid, caused the machine to strike a third person, the fact that the pedestrian was also guilty of negligence does not relieve the auto driver from liabilitj^ for the injuries to such third person." And the jury may be justified in charging the 72. Henderson v. Northam. 176 Cal. discharge of all unless it appears that 493, 168 Pae. 1044. the paj-ment made was received in full 73. Johnston v. Cornelius, 200 Mich. satisfaction. This case is not one of 209, 166 N. W. 983, L. R. A. 1918D technical release, for the writings are 880. * Tiot under seal. The writings do not 74. Sec sections 396, 415, 521, 705. acknowledge the receipt of full sati*- 75. King V. San Diego Elec. By. Co., faction, but affirm the contrary. 176 Cal. 266, 168 Pac. 131 ; Solomon v. Neither writing contains anything that Braufman, 175 N. Y. Suppl. 835. See imports a discharge of the cause of ac- also Christ! v. Hawert. 164 Wis. 624, tion." Blackmor v. McCabe, 86 Vt. 160 N. W. 1061. 303, 85 Atl. 113. " A release of one joint tortfeasor by 76. Section 679. an instrument under seal is a conclu- 77. Mehcgan v. Faber, 158 Wis. 64.''>. sive discharge of all, but an unsealed 149 N. W. 397. discharge of one will not operate as a 22 80 338 The Law of Automobiles. driver of a motor vehicle with negligence where he wrongfully cut the corner and caused another vehicle to strike a pedes- trian, although the accident would not have happened but for the w^rongful speed of the other vehicle.''^ Sec. 291. Proximate cause — intervening agency. The line of proximate results which follow from an act of negligence is sometimes said to he broken when an interven- ing agency interposes for which .the defendant is not respon- sihle. Thus, the negligence of one who leaves a motor vehicle unattended by the side of the highway does not create liability for injuries which result from a hoy interfering with the brakes and causing the machine to start.'^ But, when the negligent conduct of the driver of an automobile causes it to strike a pedestrian and such pedestrian is thereby thrown so as to strike and cause injury to a third person, the driver may be liahle for the injuries sustained by such third person" Generally speaking, an intervening cause, in order to relieve from liability, must itself he a wrongful cause ; that is, a cause for which the producer thereof would himself be liable to the plaintiff.^^ Thus, where a defendant wrongfully backed his automobile into a street without giving the proper statutory warning to other travelers, and one riding a motorcycle along the street was injured while attempting to avoid such automo- bile by colliding with another automobile, it Avas held that the other machine was not an intervening cause which would re- lieve the defendant from liability.^^ x\nd, where an automo- bile, although driven carefully, was caused to skid by the slip- pery condition of the highway and struck a wagon of the plain- tiff, it was held that the municipality was liable for the in- juries to the wagon.^^ 78. Hellan v. Supply Laundry Co., 81. Pyers v. Tiers, 89 X. J. L. 320. 94 Wash. 683, 163 Pac. 9. 99 Atl. 130. 79. Rhad v. Diiquesne Liglit Co., 255 8Si. Pyers v. Tiers, 89 N. J. L. 520. Pa. St. 409, 100 Atl. 262. And see 99 Atl. 130. section 342. 83. Kelleher v. City of Newbury- 80. Walker v. Rodriguez, 139 La. port, 227 Mass. 462, 116 N. E. 807. 251, 71 So. 499. Negligence ix Operation of Motor Vehicles. 339 Sec. 292. Competency of driver of motor vehicle — in general. One of the obligations imposed on the driver" of an automo- bile is that he should have reasonable experience and skill in the management of automobiles and that he is physically capable of running the machine.**^ An unskillful or inexperi- enced driver is not to be excused from lial)ility for injuries inflicted because of his inexperience and unskillfulness. On the contrary, he should not frequent places where injury is liable to result from inexperience or unskillfulness in handling a car. When a person operates an automobile along a public highway frequented by other travelers, he assumes the re- sponsi))ility for injuries resulting from his own unskillfulness in the operation of the car.^° And when one employs another to run a motor vehicle, he should exercise reasonable prudouoo in selecting an employee having the necessary rcciuircintMils."' 84. Flicker r. Philadelphia Rapid Transit Co., 63 Pa. Super. Ct. 381. Inexperienced driver learning to run machine.— ^^'llere an inexperienced ptM-- son is learning to drive an automobile in the presence of and under the tuition of an experienced operator, he is not liable for injuries occasioned thereby, unless there is positive negligence on his part. Bertrand v. Hunt, 89 Wash. 475, 154 Pac. 804. But see Winslow v. New England Coop. Soc. 235 Mass. 576, 114 N. E. 748, holding such a per- son to the care of an ordinarily pru- dent driver. 85. Hughoy v. Lennox (Ark.^, 210 S. W. 323. 86. Parker v. Wilson. 170 Ala. 3f.I, 60 So. 150, 43 L. R. A. (X. S.) 87: Gardiner v. Solomon, 200 Ala. 115, 75 So. 621; Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351; Raubv. Donn, 254 Pa. St. 203, 98 Atl. 861 ; Allen v. Brand (Tex. Civ. App.), 168 S. W; 3-^.. See also Brown v. Green Sc Flinn. Inc.. 6 Del. (Boyce) 449, 100 Atl. 475. "But no one can deny that an automo- bile in the hands of a careless and in- competent driver would be a dangerous machine to turn Inoso on busy streets, and would constitute a menace to travelers. The owner of a car must (exercise reasonable care in the selec- tion of a chauffeur, and, failing in this, will lie held liable for the consequences of his own negligence in sending out his car in charge of an incompetent operator." Daily v. Maxwell. 152 Mo. App. 415, 133 S. W. 351. "While au- tomobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of the same, except upon the theory of the doctrine of respondeat superior, yet there is an ex- ception if he intrusts it to one. though not an agent or servant, who is so in- competent in the handling of the same as to convert it into a dangerous in- strumentality, and the incompetency is known to the owner when permitting the use of the vehicle." Gardiner v. Solomon (Ala.\, 75 So. 621. Public automobiles.— The driver of a public vehicle is bound to be a skillful driver, and any damage arising from his unskillful driving is a ground of action. A less degree of skill is *-^ b'' 340 The Law of Automobiles. If the owner knowingly intrusts the machine to one who is in- competent, he may be liable for ensuing injuries.^^ But when the chauffeur takes the machine without the knowledge or con- sent of the owner and uses it for his own purposes, it has been held that liability for his conduct on such a trip is not im- posed on the master on the theory that the chauffeur was not a competent and careful operator.^^ The owner's fault in em- ploying an improper servant is not deemed a proximate cause of an injury occasioned to a third person when the servant has unlawfully taken the car for his own purposes.^^ Sec. 293. Competency of driver of motor vehicle — presump- tion as to skill of driver. It is held that there is no presumption either as to the skill or want of skill of the driver of a vehicle. Thus it is not proper for the judge to charge the jury that the law pre- sumes, in the absence of evidence to the contrary, that the driver of the machine in question was a reasonable, careful and skillful driver of such a machine.^° But, in an action for injuries to an automobile, the burden of proof is not upon the owner to show that the driver was competent.^^ looked for from the driver of a pri- vant by the defendant was the legal vate vehicle, but he is bound to drive cause of the plaintiff's injury. Knowl with reasonable care and skill. Collier edge that McCauley was habitually V. Chaplin, U. P., C. P., cor. Byles, J., careless in the operation of the auto- Westminster, Feb. 1, 1865; Oliphant's mobile has no tendency to prove that Law of Horses, p. 283. the defendant ought to have known or 87. Gardiner v. Solomon (Ala.), 75 anticipated that he would steal th« So. 621. vehicle, or use it for his own purposes 88. Lewis v. Amorous, 3 Ga. App. 50, contrary to the owner's explicit order; 59 S. E.. 338; Danforth v. Fisher, 75 and unless that fact is found, it can- N, H. Ill, 71 Atl. 535, 21 L. R. A. not be said that the defendant's fault (N. S.) 93; Jones v. Hoge, 47 Wash. in employing a chauffeur whom he 663, 92 Pac. 433, 125 Am. St. Rep. knew to be reckless was the cause of 915, 14 L. R. A. (N. S.) 216. And see the plaintiff's injury." Danforth v. chapter XXIII, as to liability of owner Fisher, 75 N. H. Ill, 71 Atl. 535, 21 for negligence of driver. L. R. A. (N. S.) 93, 139 Am. St. Rep. 89. "If it were conceded that Mc- 670. Cauley was a reckless operator and 90. Devine v. Brunswick-Balke Col- that the defendant was aware of that lender Co., 270 111. 504, 110 N. E. 780. fact, it could not be found that the 91. Latham v. Cleveland C. C. & St. continued employment of a careless ser- L. R. Co.. 179 111. App. 324. Negligence in Operation of Motor Vehicles. 341 Sec. 294. Competency of driver of motor vehicle — physical condition of driver. It is of course, clear that one, whose physical condition for- bids the operation of a mbtor vehicle with the precautions which a reasonably prudent man would take, should not at tempt such an undertaking. Thus, negligence may be predi- cated on the fact that the owner of a machine permitted it to be run by a driver who was crippled so that he could not use the foot brake efficiently.^^ And where an innocent person is injured as the result of the violation of a statute which for- bids the operation of a motor vehicle by an intoxicated driver, liability may be imposed.^^ So, too, if one voluntarily drinks liquor until he is intoxicated, and so negligently operates an automobile as to cause injury to another, his intoxication mil furnish no excuse for his negligence or its proximate results. One is not relieved of his duty of exercising reasonable care for his o^^m safety by voluntary intoxication.^^ On the other 92. See Blalack v. Blacksher, 11 Ala. App. 545, 66 So. 863. 93. Lincoln Taxicab Co. v. Smith, 88 Misc. (N. Y.) 9, 150 N. Y. Suppl. 86. See also Stewart v. Smith, 16 Ala. App. 461, 78 So. 724. Proximate cause.— The violation oi a statute with reference to intoxicated drivers does not afford a basis of re- covery, unless the injuries in question are the proximate result of the viola- tion. Allen V. Pearson, 89 Conn. 401. 94 Atl. 277. And see sections 289-291 as to proximate cause. 94. Powell V. Perry, 145 Ga. 696, 89 S. E. 753; Winston's Adm'r v. City of Henderson, 179 Ky. 220, 200 S. W. 330. "As liquor may affect, not only the brain, but the nerves, the muscles, aiul the eyesight, if a person voluntarily becomes intoxicated, and in that condi- tion undertakes to drive an automo- bile, and injury results to another from the negligent operation of it, his condition would be a fact for the con- sideration of the jury, in determining whether he acted with diligence or neg- ligence." Powell V. Berry, 145 Ga. 696, 89 S. E. 753. See also, Wiggin- ton's Adm'r v. Rickert, 186 Ky. 650, 217 S. W. 933. 95. Winston's Adm'r v. City of Hen- derson, 179 Ky. 220, 200 S. W. 330. "Voluntary drunkenness furnishes no excuse for negligence; nor does it re- lieve a drunken man from exercising the degree of care required of a sober man in the same circumstances. If a person is required to use ordinary care, this means that care which every pru- dent man would exercise under similar circumstances. In taking the conduct of every prudent man as a standard, reference is made to the normal man; that is, the sober man. Ordinarj- care is not to be measured by what every prudent drunken man would do under like circumstauces, but what every pru- dent sol>or man would do under like circumstauces. If ordinary care un- der certain circumstances would re- quire that a certain thing should be done, the requirement is binding on a man whether sober or drunk: and get- 342 The Law of Automobiles. hand, intoxication of itself furnishes no ground for lia])ility, if the driver has nevertheless exercised the care of a reason- ably prudent driver.^^ The intoxication of a driver may be considered by the jury, but it does not of itsejf convict him of negligence.^^ There may be, however, a few jurisdictions where the driving of a car by an intoxicated person is for- bidden by statute and the act, therefore, becomes negligence per se.^^ And the fact that the driver's eyesight is such that he is compelled to wear glasses does not forbid him from driv- ing a motor vehicle on the highways,^^ but the standard of care required of one with defective sight and hearing is that usually exercised by an ordinarily prudent normal man.^ Where the driver of an automobile drove over an embank- ment on the side of the road, and it appeared that it was broad daylight and the road was hard, dry and smooth and wide enough for two vehicles, and there was no obstruction or other vehicles along the road; and it further appeared that the car was in good condition and he had driven at previous times carelessly and too near the edge of the road, and it was a hot day and the driver's explanation was that he was suddenly taken with a period of dizziness, it was held that his negli- gence was a question for the jury.^ Moreover, one who is sub- ject to sudden attacks of vertigo, but who nevertheless at- tempts to run an automobile along a street frequented by other travelers, may be guilty of criminal negligence and lialile to a criminal prosecution.^ ting drunk will not rplieve the person City of Kenosha (Wis.), 182 N. W. from the duty. To hold otherwise 741. would be to put a premium upon 98. Wise v. Schneider (Ala.), 88 So. drunkenness." Powell v. Berry, 145 662. Ga. 696, 89 S. E. 753. 99. Bigelow v. Town of St. .Tohns- 96. Wise V. Schneider (Ala.), 88 So. bury, 92 Vt. 423, 105 At). 34. 662; Sylvester V. Gray, 118 Me. 74, 105 1. Roberts v. Ring, 143 Minn. 151, Atl. 815. 173 N. W. 437. 97. Wise V. Schneider (Ala.), 88 So. 2. Myers v. Tri-State Auto Co., 662; St. Louis, etc., Ry. Co. v. Morgan 121 Minn. 68, 140 N. AV. 184. (Tex. Civ. App.), 220 S. W. 281; 3. Tift v. State, 17 Ga. App. 663, Southern Traction Co. v. Kirbsey (Tex. 88 S. E. 41. See eliapter XXVII, as Civ. App.), 222 S. W. 702; Strang v. to r-iiininal offenses. Negligence in OrKUATiox or ^Fotor Vehicles. 343 Sec. 295. Competency of driver of motor vehicle — permitting immature child to drive car. The owner of an antonu)))ilc may be charged witli negligence if he permits young children to run the machine and their im- maturity or lack of judgment occasions injuries to other trav- elers.'^ Liability is not imposed on llie owner because of the relationship between the parties or because of the ownership of the machine, but because of the owner's negligence or wrongful act in entrusting the machine to a person of imma- ture years and judgment.^ Thus, it is clear that if a father en- trusts a heavy motor vehicle to his son who is only eleven years of age for running along the streets of a populous town, the owner may be responsible for injuries occasioned through the conduct of such boy.^ Statutes which prohibit the opera- tion of motor vehicles by children under a prescribed age may have a material bearing on this ciuestion. Such a statute is a legislative declaration that children under the age limit are incompetent to drive such vehicles on the public highways." If the owner connives with his young son in the violation of such a statute, he should be responsible for all injuries which proximately result from the ^dolation.^ A question may. re- main, however, as to whether the immaturity of the driver was the proximate cause of the plaintiff's injuries.^ 4. Parker v. Wilson, 179 Ala. 361. 60 Suppl. 257. So. 150, 43 L. R. A. (N. S.) 87; Gar- 8. Taylor v. Stewart. 173 N. Car. diner v. Soloman, 200 Ala. 115. 75 So. 203. 90 S. E. 134. "'When the defend- 621; Linville V. Nissen, 162 N. Car. 95, ant permitted one of his own family. 77 S. E. 1096; Raub v. Donn, 254 Ta. whose acts he had the right and au- St. 203, 98 Atl. 861; Diseepeo v. City thority to control, to operate his car, of Ft. William, 11 O. W. N. (Canada) he became a party to the violation of 73. And see section 292, et seq. the statute, and should be held respon- 5. Parker v. Wilson, 179 Ala. 361, sible for the consequences which fol- 60 So. 3 50, 43 L. R. A. (N. S.) 87; lowed. Schultz v. Morrison, 1 Misc. Linville v. Nissen. 162 N. Car. 95, 77 (N. Y.) 248. 154 X. Y. Suppl. 257. S. E. 1096. 9. Elmendorf v. Clark. 143 La. 971. e. Allen V. Brand (Tex. Civ. App.), 79 So. 557; Taylor v. Stewart, 175 N. 168 S. W. 35. Car. 199, 95 S. E. 167. See also. Koch 7. Daily v. Maxwell, 152 Mo. App. v. City of Seattle (Wash.). 194 Pac. 415, 133 S. W. 351; Schultz v. Morri- 572; Benesch v. Pagel (Wis.). 177 N. son, 91 Misc. (K Y.) 248, 154 N. Y. W. 860. 344 The Law of Automobiles. Sec. 296. Competency of driver of motor vehicle — opinion of witness as to competency of driver. In an action involving the competency of the driver of a motor vehicle, a witness should not be permitted to give his opinion as to the competency of the driver in question, for the jury is capable of drawing the proper inference from a state- ment of the facts.i'^ So, too, where one of the issues was whether a crippled driver could efficiently manipulate the brakes of a Ford car, it is reversible error to permit a witness to state that one could run a car of that kind and operate the brake as effectively with his hands as with his feet." Sec. 297. Effect of violation of statute or municipal ordinance — in general. The courts in the different jurisdictions are not harmonious on the question as to the effect which shall be given to the violation of a statute or municipal ordinance regulating the use of highways. In some States, the view is taken that the violation is evidence of negligence ;^^ in others, the courts say that the violation is prima facie evidence of negligence ;" but the 'view generally taken is that the violation is negligence 10. Pantages v. Seattle Elec. Co., .55 Wash. 453, 104 Pac. 629. 11. Black V. Blacksher, 11 Ala. App. 545, 66 So. 863. 12. Nebraska. — Rule v. Claar Trans- fer & Storage Co., 102 Neb. 4, 165 N. W. 883; Stevens v. Luther, 180 N. W. 87 ; Dorrance v. Omaha, etc., Ry. Co., 180 N. W. 90. New Jersey. — Horowitz v. Gottwalt (N. J. L.), 102 Atl. 930; Kolankiewiz V. Burke, 91 N. J. L. 567, 103 Atl. 249 New York. — McCarragher v. Proal 114 N. Y. App. Div. 470, 100 N. Y Suppl. 208; Harding v. Cavanaugh, 91 Misc. (N. Y.) 511, 155 N. Y. Suppl 374 ; People v. Scanlon, 132 N. Y. App Div. 528, 117 N. Y. Suppl. 57; Meyers V. Barrett, 167 N. Y. App. Div. 170 152 N. Y. Suppl. 921; Stern v. Inter national Ry. Co., 167 App. Div. 503 153 N. Y. Suppl. 520; Crombie v. O'Brien, 178 App. Div. 807, 165 N. Y. Supp. 858. See also, Beickhemer v. Empire Carrying Corp., 172 N. Y. App. Div. 866, 158 N. Y. Suppl. 853. And see Martin v. Herzog, 228 N. Y. 164, 126 K. E. 814, giving greater weight to a violation of statute. Canada. — Bears v. Central Garage Co., 3 D. L. R. 387; Stewart v. Steele, 6 D. L. R. 1; Campbell v. Pugsley, 7 D. L. R. 177. 13. Ward v. Meredith, 220 111. 66, 77 N. E. 119; Lawrence v. Channahon, 157 111. App. 560; Schumacher v. Mein- rath, 177 III. App. 530; Bruhl v. An- derson, 189 111. App. 461, Fippinger v. Glos, 190 ni. App. 238; Frank C. Weber v. Stevenson Grocery Co., 194 111. App. 432 ; Berg v. Michell, 196 111. App. 509. Negligence in Operation of Motor Vehicles. 345 per se." The distinction between mere "evidence of negli- gence" and "negligence per se" is very marked, in that in the former there must be an adjudication as to whether or not the violation constitutes negligence, whereas in the latter neg- ligence necessarily follows the proof of the violation.^^ In at 14. Alabama. — Watts v. Montgomery Tr. Co., 175 Ala. 102, 57 So. 471; Hill V. Condon, 14 Ala. App. 332, 70 So. 208. "The decisions as to the legal effect of violating a statute or ordi- nance are not harmonious. In some cases, it is held that such violation is not negligence per se, but that it is competent evidence of negUgenee, and may be suflBlcient to justify a jury in finding negligence in fact. However, it is settled in Alabama, and we think it is the weight of authority, that a violation of a statute or an ordinance is negligence per se, and a person proximately injured thereby may recover for such injuiies against the violator of the law," Watts v. Montgomery Tr. Co., 175 Ala. 102, 57 So. 471. California. — Scragg v. Sallee, 24 Cal. App. 133, 140 Pac. 706; Opitz v. Schenck, 174 Pac. 40; Mathes v. Ag- geler & Musser Seed Co., 179 Cal. 697, 178 Pac. 713; Lawrence v. Goodwill, 186 Pac. 781, Colorado. — Denver Omnibus & Cab Co. V. Mills, 21 Colo. App. 582, 122 Pac. 798. Delaivare. — Travers v. Hartman, 5 Boyce 302, 92 Atl, 855; Lemmon v. Broadwater, 7 Boyce (30 Del.) 472, 108 Atl. 273; Wollaston v. Stiltz, 114 Atl, 198. Georgia. — Sheppard v. Johnson, 11 Ga, App, 280, 75 S. E. 348 ; Columbus R, Co. V, Waller, 12 Ga. App. 674, 78 S, E, 52 ; O 'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36; Ware v. Laman, 18 Ga. App. 673, 90 S. E. 364; Central of Ga. R. Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517 ; Wilkinson v. Bray (Ga. App.), 108 S. E. 133. Indiana. — Fox v. Barekman, 178 Ind. *572, 99 N. E. 989; Carter v. Caldwell, ] 83 Ind. 434, 109 N. E. 355 ; Conder v. Griffith, 61 Ind. App. 218, 111 N, E. 816; Mayer v. Melleter, 65 Ind. App. 54, 114 N. E. 241. Iowa. — Hubbard v. Bartholomew, 163 Iowa, 58, 144 N. W. 13; Fisher v. Ellston, 174 Iowa, 364, 156 N. W. 422. Kansas. — Fisher v. O'Brien, 99 Kans, 621, 162 Pac, 317, Kentucky. — National Casket Co, v. Powar, 137 Ky. 156, 125 S. W. 279; Collett V. Standard Oil Co., 186 Ky 142, 216 S. W, 356. Minnesota. — Hillstroni v. Mann- heimer Bros., 178 N, W, 881; Unmacht V. Whitney, 178 N, W. 886; Thomas v. Stevenson, 178 N, W, 1021, See also. Day V, Duluth St. Ry. Co., 121 Minn. 445, 141 N, W. 795. Missouri. — Barton v. Faeth, 193 Mo. App. 402, 186 S. W. 52; Carradine v. Ford, 195 Mo, App. 684, 187 S, W. 285; Rappaport v. Roberts (Mo. App.). 203 S. W. 676. North Carolina. — Tayloi v. Stewart, 172 N. Car. 203, 90 S. E. 134; Taylor V. Stewart, ITo X. Car. 199, 95 S. E. 167, Ohio. — Schell v. DuBois, 94 Ohio, 93. 113 N. E. 664; Weimer v. Rosen, 100 Ohio, 361, V26 N. E. 307; Ohesrown v. Bevier. 128 N. E. 94. South Carolina. — Whaley v. Osteii- dorff, 90 S. Car. 2S1, 73 S. E. 186: McCoon V. Muldrow, 91 S. Car, 523, 74 S. E. 386. Texas. — Stateu v. Monroe (Civ. App.\ 150 S. W. 222; Solon v. Pasche (Civ. App."), i:.3 S. W. 672; Kccvil v. Ponsford (Civ. App,^. 173 S. W. 518; Schoellkopf Saddlery Co. v. Crawley 346 The Law of Automobiles. least one jurisdiction, a distinction has been drawn between the violation of a statute and the violation of an ordinance, and it has been held that the violation of a statute is negli- gence pe)' se, but that result does not follow' from the violation of a municipal ordinance.^'' The effect of the violation of a statute is further discussed in this work in connection wdth particular regulations.^^ The rule is different in some juris- dictions where the regulation involved relates to the so-called ^'law of the road." Driving on the wrong side of the road is (Civ. App.), 203 S. W. 1172; Carvel v. Kusel (Civ. App.), 205 S. W. 941; El Paso Elec. Ry. Co. v. Terrazas (Civ. App.), 208 S. W. 387; Southern Trac- tion Co. V. Jones (Civ. App.), 209 S. W, 457; Ward v. Cathey (Civ. App.), 210 S. W. 289; Flores v. Garcia (Civ. App.), 226 S. W. 743. Utah. — Beggs v. Clayton, 40 Utah, 389, 12 Pae. 7. Washington. — Ballard v. Collins, 63 Wash. 493, 115 Pac. 1050; Hillebrant V. Manz, 71 Wash. 250, 128 Pac. 892; Ludwigs V. Dumas, 72 Wash. 68, 129 Pac. 903; Mickelson v. Fischer, 81 Wash. 423, 142 Pac. 1160; Moy Quon V. M. Furuya Co., 81 Wash. 526, 143 Pac. 99: Lloyd v. Calhoun, 82 Wash. 35, 143 Pac. 458, overruling 78 Wash. 438, 139 Pac. 231; Sheffield v. Union Oil Co., 82 Wash. 386, 144 Pac. 529; Bogdan v. Pappas, 95 Wash. 579, 164 Pac. 208; Ebling v. Nillson, 186 Pac. 887. ' ' This court is definitely com- mitted to the rule that *a thing which is done in violation of positive law is in itself negligence,' in the absence of pleading and proof of such peculiar facts as would tend to justify the vio- lation. ... In consonance with that rule, this court, in common with others, has repeatedly held that in the ab- sence of circumstances tending to ex- cuse by making such a course reason- ably necessary, a failure to observe the law of the road, resulting in injury, is negligence as a matter of law." John- son V. Heitman, 88 Wash. 595, 3 53 Pac. 331. Wisconsin. — Ludke v. Buick, 160 AVis. 440, 152 N. W. 190, L. R. A. 1915D 968; Riggles v. Priest, 163 Wis. J 99, 157 N, W. 755. Canada. — Stewart v. Steele, 5 Sask. L. R. 359, 6 D. L. R. 1. 15. Central of Georgia Ry. Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517. ' ' When evidence of negligence is only prima facie, it is subject to rebuttal, but when there is negligence per se, it is conclusive of that question." Whaley v. Ostendorff, 90 8. Car. 281, 7.3 S. E. 186. 16. Cook V. Johnston, 58 Mich. 437, 25 N, W. 388, 55 Am. Rep. 703; Flater V. Fey, 70 Mich. 644, 38 N. W. 656; Sterling v. City of Detroit, 134 Mich. 22, 95 N. W. 986; Blickley v. Luce's Estate, 148 Mich. 233, 111 N. W. 752; Westover v. Grand Rapids R. Co., 180 Mich. 373, 147 N. AV. 630; Rotter v. Detroit United Ry. (Mich.), 171 N. W. 514. See also, Zoltovski v. Gzella, 159 Mich. 620, 124 N. W. 527, 26 L. R. A. (N. S.) 435. Instructions. — One suing for an in- jury occasioned by the operation of a motor vehicle in excess of a speed regu- lation, is entitled to have the jury given a clear and explicit instruction as to the legal effect of the violation. Levyn v. Koppin, 180 Mich. 232, 149 N. W. 993. 17. See sections 267, 320-322. Xegliukxck IX Oi'KK.vnox oi >roTOR Vehicll.- :54" not so clearly a wrongful act as driving at a prohil)ited speed, for the circumstances may be such as to excuse a violation of the law of the road. Hence the violation is generally said to be prima facie negligence and the violator of the rule is given an opportunity to rebut the inference of negligence arising against him.^^ There are, however, a few jurisdictions where a violation of the law of the road is considered negligence per se.^^ And an unexcused violation may be negligence as a matter of law.^^ In any event, the failure to observe the re- 18. Heidniaii v. Zwart, 167 Iowa, 500, 149 N. W. 631; Granger v. Far- rant, 179 Mich. 19, 146 N. W. 218. See also section 267. "But it is not to be understood that we intend to hold that the fact that the driver of a motor vehicle may violate the statute by driv- ing on the wrong side of the road or street is itself necessarily an act of negligence in all eases. He might for a sufficient reason be compelled to drive on the left of the center of the road or street, and do so in such man- ner as to leave to approaching vehi- cles, pedestrians, or animals ample op portunity to pass with perfect safety to themselves, in which case, if dam- age occurred by collision with his vehi- cle, the question as to whoso negligence was directly responsible therefor would depend for its solution upon the other circumstances attending the accident. In brief, and in other words, the fact that he was driving over the highway on the left of the center of the road- way might, where injury to another had resulted therefrom, constitute prima facie evidence of negligence, but it would amount to no more than that, and its evidentiary effect might prop- erly be overcome or dispelled by other evidence. . . . We can conceive no inconsistency between the rule thus stated and the declaration in the opin ion in the case of Scragg v. Salleo. rM Cal. App. 133, 140 Pac. 706, cited here, that one who drives a uuAov vcliicle over a street beyond the rate of speed prescribed and limited by a municipal ordinance and for w^ich a penalty is provided is guilty of negligence per se. The two propositions, as we conceive them, are widely divergent. In the one case the drivers have the right to pass over public streets and highways, and. as before suggested, if they 'give rea- sonable warning of their approach' and 'use every reasonable precaution to insure the safety of approachinw of Automobiles. ute forhidding- the use of a motor vehicle without the consent of the owner is not intended for the protection of pedestrians along the highway and cannot form the basis for an action for their injuries.^'* Likewise, a statute requiring an automo- bile driver to stop before crossing a railroad track is not im- portant in an action by a pedestrian against the driver.^^ But a statute prescribing the speed of motor vehicles may be con- sidered as enacted for the benefit of passengers in a jitney injured by the unlawful speed of such machine, as well as for pedestrians and other travelers outside of the jitney.^^ And a regulation regulating the conduct of drivers when passing a street car standing in the street, may be deemed for the pro- tection of pedestrians crossing the street as well as street rail- way passengers.^^ So, too, an ordinance forbidding the ob- struction of fire apparatus by street cars may be invoked by a pedestrian who is struck by a fire automobile diverted from its course by a street car.^* But an ordinance forbidding the streets so as to prevent congestion and collision, and could thereby pro- tect all persons using the streets, in- cluding street cars; but it is manifest that the ordinance in question was not intended for the protection of street railways, as the wording and meaning of same does not exclude ve- hicles from their tracks. The ordi- nance does not require the drivers of vehicles to keep off of the street rail- way tracks, but only requires them to keep on the side of the street to the right; that is, they must remain at the right of the center of the street. If they do this, they do not violate the ordinance, notwithstanding they may be upon the track of a street care line. It may be that most of the street car tracks are laid in the center of the street, and an ordinance requiring vehi- cles to stay to the right of the track, if there is space enough for them to do so, would no doubt be a reasonable one; but such is not the present ordi- nance, as it only requires the vehicle to be to the right of the center of the track. Again, there may be street car tracks laid within either side of the streets, and, if a driver kept to the right of the center of the street, he would not violate the ordinance, al- though he may drive upon or along the street car track. It is plain that the ordinance in question was not intended to keep vehicles off of street car tracks or for the protection of street car com- panies." 3Q. Johnston v. Cornelius, 200 Mich. 209, 166 N. W. 983, L. K. A. 1918D 880. 31. Carter v. Redmond, 142 Tenn. 258, 218 S. W. 217. 32. Singer v. Martin, 96 Wash. 231, 164 Pac. 1105. 33. Kolankiewiz v. Burke, 91 N. J. L. 567, 103 Atl. 249. 34. King v. San Diego Elec. Ry. Co., 176 Cal. 266, 168 Pac. 131. Negligence in Operation of Motor Vehicles. 351 parking of cars ^vithiIl a certain distance of a hydrant is not for the benefit of the traveling public.^ Sec. 300. Effect of violation of statute or municipal ordinance — proximate cause of injury. In order that an injured plaintiff shall reap the advantages arising from the fact that the defendant has violated a statute or municipal ordinance, it is essential that the injury of which the plaintiff complains is one which proximately follows from violation of the regulation.^^ On the other hand, if the viola- 35. Densoii v. McDonald Bros., 144 Minn. 252, 175 N. W. 108. 36. Alabama.— Taxicah & Touring Car Co. V. Cabiness, 9 Ala. App. 549, 63 So. 774. California.— Tenn v. Clark, 11 Cal. App. 79, 104 Pac. 632; George v. Mc- Manus, 27 Cal. App. 414, 150 Pac. 73 ; Weaver v. Carter, 28 Cal. App. 241, 152 Pac. 323; House v. Fry, 30 Cal. App. 157, 157 Pae. 500; Henderson V. Northam, 176 Cal. 493, 168 Pac. 1044; Lawrence v. Goodwill (Cal. App.), 186 Pac. 781; Robinson v. demons (Cal. App.), 190 Pac. 203. "Counsel for the defendant are un- doubtedly right in the contention that, where, as is the theory of the plaintiff here, a tort is the direct result of the violation of some statutory or other law, and the party suing for damages relies upon the infraction of such law for a recovery, it must be made to appear, and the court must so instruct the jury, that, before a recovery in such case is sustainable, the act of the defendant in violating such law was the proximate or direct cause of the tort or injury." Weaver v. Carter, 28 Cal. App. 241, 152 Pac. 323. Connecticut.— AWen v. Pearson. 89 Conn. 401, 94 Atl. 277 ; Coffin v. Las- kau, 89 Conn. 325, 94 Atl. 370 ; Feehan V. Slater, 89 Conn. 697, 96 Atl. 159; Radwick v. Goldstein, 90 Conn. 701, 98 Atl. 583. Delaware. — Grier v. Samuel, 4 Boyce, 106, 86 Atl. 209; Lemmon v. Broadwater, 30 Del. (7 Boyce) 472, 108 Atl. 273; Wollaston v. Stiltz, 114 Atl. 198. Illinois. — Graham v. Hagmann, 270 111. 252, 110 N. E. 337, affirming 189 111. App. 631 ; Kessler v. Washburn, 157 111. App. 532; Lawrence v. Chan- nahon, 157 111. App. 560; Natham v. Cleveland, etc., R. Co., 164 111. App. 559; Moyer v. Shaw Livery Co., 205 111. App. 273. Indiana. — Mayer v. Melleter, 65 Ind. App. 54, 114 N. E. 241. Iowa. — Herdman v. Zwart, 167 Iowa, 500, 149 N. W^ 631. KeniucTcy. — Moore v. Hart, 171 Ky. 725, 188 S. W. 861. Massachusetts. — Belleveau v. S. C. Lowe Supply Co., 200 Mass. 237, 86 N. E. 301. Michigan.— VeoTple v. Barnes, 182 Mich. 179, 148 T. W. 400; Johnston v. Cornelius, 200 Mich. 209. 166 N. W. 983. Minnesota.— Benson v. McDonald Bros., 144 Minn. 252, 175 N. W. 108. ^/moMrt.— Ropor v. Grcenspon (Mo. App.). 192 S. W. 149. "Whore the negligence charged consists of the al- leged violation of a municipal ordi- nance it is not sufficient to merely show the violation of the ordinance and plaintiff's injury. The fact of the vio- lation of the ordinance alone rai>.^'' no 352 The Law of Automobiles. tion is the proximate cause of the injury sustained by the plaintiff, and if the plaintiff has not been guilty of contribu- tory negligence," the defendant is liable.^ Whether the in- jury in question is a proximate result of the violation, is fre- quently a jury question.^^ One excellent illustration of the rule is found in cases where the owner of an automobile has failed to have the machine registered and licensed according to the statute on the subject; but it is generally (not univer- sally) held that such failure is not sufficient ground to charge the owner with responsibility for injuries sustained by an- other traveler by reason of a collision with such automobile ; nor does it forbid the owner from recovering for injuries to the machine occasioned through the neglect of another trav- eler/* The fact the driver is under the lawful age of persons allowed to drive automobiles, will not bar an action by him, unless his age contributed to the injury.'*^ Other illustrations will be found in connection with the violation of various stat- utes relating to the use of highways by automobilists. presumption that the injury complained Texas. — Keevil v. Ponsford ( Oiv. of was thereby caused. There must be App.), 173 S. W. 518; Schoellkopf evidence tending to reasonably estab- Saddlery Co. v. Crawley (Civ. App.), lish a causal connection between such 203 S. W. 1172; Texas, etc. Co. v. Har- ordinance violation and the injuries for rington (Civ. App.), 209 S. W. 685 which plaintiff sues. In order to sup- Washington. — Johnson v. Heitman, port a recovery there must be sub- 88 Wash. 595, 153 Pac. 331. stantial evidence tending to make it 37. Section 301. appear that the injury would not have 38. Weaver v. Carter, 28 Cal. App. occurred had the ordinance in question 241, 152 Pac. 323; Carter v. Caldwell, been complied with." Roper v. Green- 183 Ind. 434, 109 N. E. 355; Schell v. spon (Mo. App.), 192 S. W. 149. DuBois, 94 Ohio, 93, 113 N. E. 664; New Torfc.— Linneball v. Levy Dairy Whaley v. Ostendorff, 90 S. Car. 281, Co., 173 N. Y. App. Div. 861, 160 N. Y. 73 S. E. 186 ; Johnson v. Heitman, 88 Suppl. 114. Wash. 595, 153 Pac. 331; Benesch v. North Carolina.— T&ylor v. Stewart, Pagel (Wis.), 177 N. W. 860. 172 N. Car. 203, 90 S. E. 134; Hinton 39. Molitor v. Blackwell Motor Co. V. Southern Ry. Co., 172 N. Car. 587, (Wash.), 191 Pac. 1103. 90 S. E. 756; Taylor v. Stewart, 175 40. Section 126, N. Car. 199, 95 S. E. 167. 41. Benesch v. Pagel (Wis.), 177 N. South Carolina. — ^Whaley v. Osten- W. 860. dorff, 90 S. Car. 281, 73 S. E. 186. Negligknck tx Operation of Motor Vehicles. 353 Sec. 301. Effect of violation of statute or municipal ordinance — contributory negligence of injured as a defense. The fact that the defendant lias violated a statute or muni- cipal ordinance regulating his conduct doe.s not generally im- pose liability on him for the plaintiff's injuries, unless there is an absence of contributory negligence on the part of the plaintiff. That is to say, contributory negligence is a defense to an action based on the violation of a statute or ordinance.*^ In some jurisdictions, contributory negligence of an injured person is not a defense, where "gross" negligence on the part of the defendant is shown ; but it is held that the mere viola- tion of a speed statute is not "gross" negligence within the meaning of this rule.^^ Sec. 302. Effect of violation of statute or municipal ordinance — necessity of pleading ordinance. In those jurisdictions where the violation of an ordinance is merely evidence of negligence, it is held that it may be re- ceived in evidence without being specially set out in the plead- ings, for it is the general rule that matters of evidence need not, and in fact should not, be pleaded.''* But, when it is 42. Davis v. Breuner Co., 167 Cal. alleged as well as proved. But the ac- 683, 140 Pac. 586; Fenn v. Clark, 11 tion at bar is not to enforce an ordi- Cal. App. 79, 104 Pac. 632; Kessler v. nance or to recover a penalty for the Washburn, 157 111. App. 53'2; Fisher v. violation thereof. It is an action in O'Brien, 99 Kans. 621, 162 Pac. 317; negligence for reckless and careless Hillstrom v. Mannheimer Bros. driving in the public streets. The alle- (Minn.), 178 N. W. 881; Ebling v. gation in the complaint is general and Nielson (Wash.), 186 Pac. 887; Zim- thereunder any evidence tending to merman v. Mednikoff, 165 Wis. 333. show such negligence and careless driv- 162 N. W. 349. iog 'was admissible. The ordinances 43. Ludke v. Buick, 160 Wis. 440. and the breach thereof were oflFered 152 N. W. 190, L. R. A. 1915D 968 : and received not as conclusive evidence Biggies V. Priest, 163 Wis. 199, 157 of negligence but as some evidence N. W. 755. which the jury might take into con- 44. Meyers v. Barrett, 167 N. Y. sideration. Upon principle it would App. Div. 170, 152 N. Y. Supp. 921, seem that as mere evidence it would wherein the court said: "The general have been improper to have pleaded rule is that when observance of an the ordinances because ultimate facts ordinance is a condition precedent to a and not evidence should be set forth right of action or where an action is in a complaint." based upon an ordinance it must be 23 354 The Law or At'tomobilks. sought to charge a party with negligence per se because he has violated a municipal regulation, it may he said with con- siderable force that the regulation is a matter of fact which should be pleaded by the party relying thereon. This view is adopted in some jurisdictions/^ It would seem to follow from such doctrine, that, if the ordinance was not pleaded, it could be shown, if at all, only as evidence of negligence. But the courts are not in agreement on this question, and it is some- times held that negligence per se may be based on a violation of the ordinance, though it is not pleaded.*^ Also, in a State 45. Pleading manner of violation. — An allegation that a person was vio- lating an ordinance, without alleging the particular respect in which he was violating it, is not ordinarily sufficient. Brickell v. Williams, 180 Mo. App. 573, 167 S. W. 607. 46. Scragg v. Sallee, 24 Cal. App. 133, 140 Pac. 706, wherein it was said: "We have not overlooked the cases arising in other jurisdictions and to which attention has been di- rected by counsel for the defendant, wherein it is held that, to constitute the violation of a municipal speed or- dinance negligence as a matter of law, such ordinance must be pleaded, and that, where in such case it is not pleaded, proof of the existence and of the violation of the ordinance amounts to no more than evidence of negligence, to be considered with other evidence re- ceived in the case upon that subject. The theory of that proposition is. ob- viously, that the plaintiff, not having pleaded the ordinance, does not rely upon it as the foundation of his right of action. The rule as so enunciated and applied, so far as we are advised, has never been recognized or applied in California. In practical effect the rule as thus enunciated would leave to the determination of the plaintiff, pri- marily, the question whether the viola- tion of such an ordinance is negligence per se or only evidence of negligence. Manifestly, the violation of a muni- cipal ordinance fixing the limit beyond which vehicles may not be driven over the streets of a city is, no less than the violation of a general act of the legislature upon the same subject, neg- ligence as a matter of law. The only distinction which can be discerned be- tween an ordinance and a general stat- ute of the State dealing with precisely the same subject, so far as is concerned the effect of the violation thereof, lies in the proposition that in the one case, as a general rule, the courts must ac- quire knowledge of the existence of the local regulation by means of affirma- tive proof thereof, while in the other the courts presumptively know and must take ■ judicial cognizance of its existence. But non constat that the violation of the ordinance does not con- stitute negligence per se merely be- cause the court in a case in which the question could arise has not acquired ki owledge in a competent way of the existence of the ordinance. The result of the want of such knowledge by the court would only be to deprive it of the authority or right to announce to the jury that such violation is negli- gence as a matter of law. The rule adopted and followed in this State ap- pears to be the more logical. It does not stop to make inquiry as to the par- ticular nature of the negligence of which the defendant has been guilty, Negligence ix Operation of Motor Vehicles. 355 where the view is taken that the violation of the ordinance is merely evidoiicc of negligence, it has ])een held that the ordi- nance nuLst ))(' pleaded to he available.''" Sec. 303. Speed of machine — in general. In the following paragraphs are discussed the general propositions ]-elating to the speed of motor vehicles on the public highways. In other chapters are treated such ques- tions, as the power of States and municipalities to adopt speed regulations;^^ evidence of their speed,^^ criminal prose- cution for violations of the prescribed limits.^o and more in detail as to injuries received by different classes of travelers and under various circumstances."^ The primary obligation of the driver of an automobile, so far as its speed is concerned, is to obey statutory and numicipal regulations applicable thereto, and in any event to drive not faster than a reason- able rate of speed considering nature of the vehicle and the surrounding circumstances. The law requires the automo- bilist to have due regard for the rights of other travelers, and which has directly caused the dam- age complained of, but authorizes the plaintiff, where he relies for a recovery upon an act constituting negli. .'^01. .528, .'■)72. 603. 715. 356 The Law of Automobiles. and though it may be convenient and even fascinating to reach one's destination at the earliest possible moment, yet the safety of other travelers must not be sacrificed.^^ Sec. 304. Speed of machine — proximate cause. It is a fundamental rule of the law of negligence that a wrongdoer is liable only for those injuries which proximately result from his wrongful acts.^^ Thus, the running of a motor vehicle at an excessive speed renders the wrongdoer liable only for those injuries which proximately result from the un lawful speed.^* On the other hand, as a general proposition, if the injured person has not been guilty of negligence con- tributing to the accident, one running at an unreasonable speed is liable for the injuries which proximately result there- from.^^ These general rules apply when the excessive speed is in violation of a statute or municipal ordinance.^^ And the fact that the driver of a car was exceeding the speed limit at the time of an injury at a railroad crossing or a collision with another vehicle, will not bar him from recovering for his in- juries unless the excessive speed was a contributing cause of the injury.^^ It is not always necessary to constitute a link 52. Gurney v. Piel, 105 Me. 501, 74 luilie v. Stephens, 193 Pac. 684. Atl. 1131. Wisconsin. — Poster v. Bauer, 180 N. 53. Sections 289-291. \V. 817. 54. Georgia. — Jones v. Tanner (Ga. • 55. Weaver v. Carter, 28 Oal. App. App.), 105 S. E. 705. 241, 152 Pac. 323; Newman v. Over- Illinois. — Hartje v. Moxley, 235 111. holtzer (Cal.), 190 Pac. 175; Walt- 164, 85 N. E. 216; Kessler v. Wash- eriek v. Hamilton, 179 Iowa, 607, 161 burn, 157 111. App. 532. N. W. 684; Fisher v. O'Brien, 99 Kans. Indiana. — Carter v. Caldwell, 183 621, 162 Pac. 317; Solomon v. Brauf- Ind. 434, 109 N. E. 355. man, 175 K Y. Suppl. 835; Schell v. Kansas. — Fisher v. O'Brien, 99 DuBois. 94 Ohio, 93, 113 N. E. 664. Kans. 621, 162 Pac. 317; Barshfield v. 56. Columbus R. Co. v. Waller, 12 Vueklich, 197 Pac. 205. Ga. App. 674, 78 S. E. 52; Fisher v. Michigan. — Weber v. Beeson, 197 O'Brien, 99 Kans. 621, 162 Pac. 317; Mich. 607, 164 N. W. 255. Whaley v. Ostendorff, 90 S. Car. 281, Montana.— J^wh v. Steel, 52 Mont. 73 S. E. 186; Schoelkopf Saddlery Go. 300, 157 Pac. 575. v. Crawley (Tex. Civ. App.), 203 S. W. South Carolina. — Whaley v. Osten- 1172; Barton v. Van Gesen, 91 Wash, dorff, 90 S. Car. 281, 73 S. E. 186. 94. 157 Pac. 215. Washington. — Hartley v. Lasater, 96 57. Robinson v. Clemens (Cal. Wash. 407, 165 Pac. 106; Singer v. App.), 190 Pac. 203; Berges v. Guthrie Martin, 96 Wash. 231, 164 Pac. 1105; (Cal. App.), 197 Pac. 356; Cross v. Negligence in Operation of Motor Vehicles. ,>.) < between the excessive speed and the injury that the unlawful speed be made at the particular time of the collision. Thus, where the driver of a machine raced a street car for a con- siderable distance and then tried to pass in front thereof, it was held that the unlawful speed contributed to the injury, although at the time of the collision the driver had slowed dow^n to a lawful speed in order to make the turn.^ The fact that a motorcyclist violates a speed regulation does not create a liability in favor of the owner of horses in an adjoining field which become frightened, for such a regulation is intended for the protection only of other travelers.'^ Sec. 305. Speed of machine — unreasonable speed prohibited. The general rule relating to the speed with which a motor vehicle may be operated along the public highways, is that, in the absence of statute prescribing a slower rate, it shall not exceed a reasonable rate, considering the nature of the machine and all of the surrounding circumstances.^ The Kosencranz (Kans.), 195 Pac. 857; Shepard v. Norfolk & S. R. Co., 169 N. Oar. 239, 84 S. E. 277; Hinton v. Southern Ry. Co., 172 N. Car. 587, 90 S. E. 756; Keevil v. Poneford (Tex. Civ. App.), 173 S. W. 518. 58. Fair v. Union Tract. Co., 102 Kans. 611, 171 Pac. 649. 59. Walkor v. Faelbor. 102 Kans. 646. 171 Pac. 655. 60. United States. — New York Transp. Co. v. Garsidc, 157 Fed. 521. 85 C. C. A. 385. Oalifomia. — Cook v. Miller, 175 Cal. 497, 166 Pac. 316; Zarzana v. Neve Drug Co., 180 C-al. 32, 179 Pac. 203. Connecticut. — Irwin v. .Judge, 81 Conn. 492. 71 Atl. 572; Lynch v. Shearer, 83 Conn. 73. 75 Atl. 88; Rad- v'jck V. GoldBt^in, 90 Conn. 701, 98 Atl. 583 Delaxodre. — Cecchi v. Lindsay, 1 Boyce (Del.) 185, 75 Atl. 376, reverecd on other grounds, 80 Atl. 523; Grier V. Samuel, 4 Boyce (Del.) 106, 86 Atl. 209; Brown v. City of Wilmington, 4 Boyce (Del.) 492. 90 Atl. 44. Georgia. — Strickland v. Whatley. 142 Ga. 802, 83 S. E. 856; Central of Ga. Ry. Co. V. Larsen. 19 Ga. App. 413. 91 S E. 517. Illinois. — Hartje v. Moxley. 235 IlL 164, 85 N. E. 216: Kessler v. Wa«h- lurn, 157 III. App. 532; People r. Lloyd. 178 111. App. 66: Hut-son t. riiitt. 194 111. App. 29. Indiana. — Brinknian v. Patliolkp, 41 Ind App. 662, 84 N. E. 762: East T, .\raburn. 47 Ind. App. 530, 04 N. E. 895. loioa. — Delfs v. Dun&hee, 143 Fowa, 381, 122 N. VV. 236; Hanen v. Le- nander, 168 Iowa, 569, 160 N. W. 18; Lemke v. Ady, 159 N. W. 1011 Sr© also. Needy v. Littlejohn. 137 Towa, 704, 115 N. W. 483. Kansas. — Arrington v. Horner. 88 Kans. 817, 129 Pac. 1159. Kentucky. — Wade v. Brents, 'fil Ky. 607, 171 S. W. 188; Wcidner v. Otter, 171 Ky. 167. 188 S. W. 335; Moore T. Hart, 171 Ky. 725, 188 8. W 861; 358 Thk Law of Ai'Tomobilks. speed of the inacliiiie, while usually of great iiiiportance, is not the sole criterion of the care of the driver, for, though he is not driving at an excessive speed, he may be found negli- gent for a violation of the law of the road or of some positive regulation, or through incomi)etency, inattention, or a mis- take in judgment/'^ What constitutes a "reasonable" rate is generally a question for the jury,*^- and depends on the sur- rounding circumstances,*^^ such as the character of the high- way,*^^ the amount and nature of the traffic/'"^ obstructions in and along the highway,^'' the nature of the machine, the dark- Major Taylor & Co. v. Harding, 182 Ky. 236, 206 S. W. 285. Massachusetts. — Rasmussen v. Whip- ple, 211 Mass. 456, 98 N. E. 592; Clark V. Blair. 217 Mass. 179, 104 N. E 435. Michigan. — Wilson v. Johnson, 195 Mich. 94, 161 N. W. 924. .Missouri. — C^inter v. O'Donaghue (Mo. App.), 179 S. W. 732; Warring- ton V. Byrd (Mo. App.), 181 S. W. 1079; Mitchell v. Brown (Mo. App.), 190 S. W. 354. New Jersey. — State v. Schutte, 88 iST. ,J. L. 396, 96 Atl. 659. New York. — De Carvalho v. Brun- ner, 223 N. Y. 284, 119 .N. E. 563; Bohringer v. Campbell, 154 App. Div. 879^ 137 N. Y. Suppl. 241; Fittin v. Sumner, 176 App. Div. 617, 163 N. Y. Suppl. 443 ; Jefson v. Crosstown St. By., 72 Misc. 103, 129 N. Y. Suppl. 233; Dultz V. Fischowitz, 104 K Y. Suppl. 357; Solomon v. Braufman, 175 N. Y. Suppl. 835. Oregon. — ^Weygandt v. Bartle. 88 Oreg. 310, 171 Pac. 587. Pennsylvania. — Freel v. Wana- niaker, 208 Pa. St. 279, 57 Atl. 563; Walleigh v. Lean, 248 Pa. iSt. 339, 3 Atl. 1069; Kuehne v. Brovvn. 257 Pa. 37, 101 Atl. 77. Texas. — Figueroa v. Madere (Civ. App.), 201 S. W. 271. Utah. — ^Lochhead v. Jensen, 42 Utah. 99, 129 Pac. 347. Washington. — Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106. Wisconsin. — Raymond v. Saux County, 167 Wis. 125, 166 K W. 29; Haswell v. Reuter, 177 N. W. 8. Canada. — B. & R. Co. v. Mc^ automobile much more slowly than the rate above in- dicated."^ It is impracticable to enact regulations which shall prescribe the speed under the varying conditions of traffic, but pro\dsions have been made limiting the speed of motor vehicles in ''closely built up" or ''business" sections to a prescribed rate.- Negligence may be based on the violation of such a speed limit.^ And regulations have been adopted prescribing the speed of machines when meeting upon narrow roads.* Sec. 310. Speed of machine — passing street cars. The driver of a motor vehicle must anticipate that persons will be getting on and off street cars standing in the streets :^ and it is his duty to have his car under such control and run- ning at such a speed that he can avoid injury to such persons.'' 98. Delfs V. Dunslie, 143 Iowa. 381. 1. Lorah v. Rinehait, 243 P.i. St. 3 33 N. W. 236; Lorah v. Rinehait, 2.S1. 89 Atl. 967. 243 Pa. St. 331, 89 Atl. 967. 2. Denison v. McXorton. 228 Fed. Evidence as to traflic which niiglit 401, 142 C. C. A. 631: Harkcr v. Gnihl, reasonably be expected on a certain (13 Ind. App. 177. Ill N. E. 457: Gar- highway Iield admissible on piasecii- radine v. Ford. 195 ^fo. App. «iP4. 187 tion for driving at a speed dangerous S. W, 285. to the public having regard to nil the 3. Sections 320-322. circumstances of the case. Ehves v. 4. Christl v. Hawert. 164 Wis. 624. Hopkins (K. B. Div.). 94 T>aw T. R. :r>0 N. W. 1061. CS. S.) 547. 5. Section 423. 99. Section 325. 6. Bannister v. TT. .levnc Co., 2R Cnl 364 The Law of Automobiles. Even in the absence of positive regulation, a speed of any con- siderable rate under such conditions may warrant the jury in charging actionable negligence against the driver of the ma- chine.'^ Statutory and municipal regulation on the subject of passing street cars is very common.^ Some prescribe a very low rate of speed under such circumstances, such as three ' or four miles an hour. Others are so drastic as to require the driver of the machine to come to an absolute stop.^° But, when not in violation of positive regulation, a speed of from five to eight miles an hour, is not necessarily excessive." Regulations of this character are intended primarily for the safety of street railway passengers, and, in some cases may be held inapplicable to bicyclists and other travelers not in any way connected with the operation of the street ear.^^ Sec. 311. Speed of machine — street intersections. At street intersections a higher degree of care is required of the driver of an automobile than is required at places in- volving less danger to pedestrians and other vehicles.^' In using the streets and highways an automobilist does so with knowledge that at street intersections other vehicles may approach to cross or turn into the one over which he is travel- Aj.p. 133, 151 Pac. 546; Gilbert v. flcpendent of the car, and it entered VanderwaU, 181 Iowa. 3, 165 N. W. in no way into the situation out of 165; Boedecher v. Frank. 48 Utah. \vl)ich the accident arose. Its presence 363, 159 Pac. 634. was an incident wholly unrelated to 7. Bannister v. H. Jevne Co., 28 Cal. tl^.e tragedy enacted in its vicinity, and App. 133, 151 Pac. 546; Naylor v. the rat© of speed at which it was Haviland, 88 Conn. 256, 91 Atl. 186. paj^sed by the defendant possessed no 8. Levyn v. Koppin, 183 Mich. 232. more significance than would the same 149 N. W. 993. See also, Sorsby v. rate of speed had the car not chanced Henninghoven. 82 Oreg. 345, 161 Pao to be there. Of whatever violation of 251. i:i\v the defendant may have been 9. Radwick v. Goldstein, 90 Conn. guilty in going by the oar, it could not 701, 98 Atl. 583. l)0 said upon the evidence that it oon- 10. Schell V. Dubois, 94 Ohio, 93, 113 tributed to the collision which fol- N" E. 664; Nicholls v. City of Cleve- lowed, or that such collision was in land (Ohio), 128 N. E. 164. any way due to the car's presence." 11. Gilbert v. VanderwaU. 181 Towa, I{r.dwick v. Goldstone, 90 Conn. 701, 685, 165 N. W. 165. 98 Atl. 583. 12. See section 423, et seq. Another automobile.— See Christian- Bicyclist.— " The intestate was a son v. Devine, 210 111. App. 253. traveler on the highway, entirely in 13. Section 279. Negligence in Operation oi Motor Vehicles. 365 ing, and that at such points crosswalks are ordinarily pro- vided for the use of pedestrians. He should, therefore, oper- ate his car with that degree of care which is consistent mth the conditions thus existing, the rate of speed and his control of the machine varying according to the traffic at the par- ticular place.^^ Whether the speed is excessive is generally a question for the jury,^ and, if they find the speed unreason- able under the circumstances, the liability of the driver of the machine will be sustained as to all injuries which proximately result from the excessive speed.^^ Statutes and nninicipal ordinances frequently fix the speed with which a motor vehicle may be operated at a street intersection. Sometimes the rate is fixed as low as four,i^ six,i« eight,i^ or ten ^o miles an hour. Or the regulation may require that the driver shall reduce his speed to not exceeding one-half of its '* regular" speed, the term *' regular" speed meaning the speed other^vise lawful.^^ Or a regulation may require one about to drive on to a boule- vard to bring his vehicle to a stop.-- Under a statute requir- ing a driver to reduce his speed when ''approaching" an in- tersection, it may be a question for the jury as to the distance from the intersection when the speed should be reduced.^^ One 14. Rowe V. Hammond. 172 Mo. App. 18. Hayes v. State, 11 Ga. App. 371, 803 157 S. W. 880. "^S S. E. 523; Ware v. Ivamar, 16 Ga. 15. Section 325. App. 560, 85 S. E. 824; Move v. Red- 16. Young V. Campbell, 20 Ariz. 71, dick, 20 Ga. App. 649, 93 S. E. 256; 177 Pac. 19; appeal dismissed on re- Sullivan v. Chauvenct (Mo.), 223 S. hearing, 181 Pac. 171; Cook v. Miller, W. 759; Chcro-Cola Bottling Co. v. 175 Cal. 497. 166 Pac. 316; Opitz v. South Carolina Light. Power & Rys. Schenk (Cal.), 174 Pac. 40; Wright Co., 104 S. Car. 214. 88 S. E. 534. V. Young, 160 Ky. 636, 170 S. W. 25; 19. Newton v. McSweeney, 225 Maae. Granger v. Farrant, 179 Mich. 19, 146 402, 114 N. E. 667. NT. W. 218; Westover v. Grand Rapids 20. Dowdell v. Beasley (Ala. App.), R. Co., 180 Mich. 373, 147 N. W. 630; 82 So. 40; Young v. Dunlap, 195 Mo. Gross V. Foster, 134 N. Y. App. Div. App. 119, 190 S. W. 1041: Schinogle 243, 118 N. Y. Suppl. 889; Chero-Cola v. Baughman (Mo. App.), 228 S. W. Bottling Co. v. South Carolina Light, 897; Young v. Campbell (Ariz.), 177 Power & Rys. Co., 104 S. C. 214, 88 Pac. 19; Mathes v. .\ggelcr & Musaer S. E. 534; Adair v. McNeil, 95 Wash. Seed Co., 179 C^l. 697, 178 Pac. 713. 160, 163 Pac. 393. 21- Mayer v. Mellette, 65 Ind. App. 17. Lud-wigs V. Dumas, 72 Wash. 68, 'l, 114 N. E. 241. 129 Pac. 903; Anderson v. Kinnear, 80 22. Kilroy v. Justrite Mfg. Co.. 209 Wash. 638, 141 Pac. 1151; Barth v. 111. App. 499. Harris, 95 Wash. 166, 163 Pac. 401. 23. Lawrence v. Goodwill (Cal. 366 The Law of Automobiles. proceeding- in broad daylight toward an intersection cannot escape the effect of the regulation by claiming that he was not aware that he was approaching intersecting streets.^* Regulations of this character will not generally apply to places where pedestrians are accustomed to cross the highway but which are not the intersections of highways.'^ Sec. 312. Speed of machine — at railroad or street railway crossings. In some jurisdictions, when the driver of a vehicle ap- proaches the crossing of a railroad, the law imposes on him the duty to ''stop, look and listen" and charges him mth con- tributory negligence as a matter of law if he fails to do so.^*^ While the rule in other jurisdictions is not so strict, and a failure to stop the machine before crossing the track may not constitute negligence as a matter of law,^^ yet a high degree of care must be exercised hy a driver when crossing such a place of danger. He must have his machine under such con- trol and must run at such a rate that he can stop the machine if necessary to avoid a collision.^^ Similarly, one approach- ing the crossing of a street railroad, though the rule may not be so strict as in the case of steam railroads, is required to exercise considerable care to avoid street cars.'^ In some jurisdictions statutes have prescribed the rate of speed which cannot be exceeded by an automobilist crossing a railroad track, or have required the driver to come to a full stop.^*^ Regulations prohibiting a rate exceeding six^^ or seven ^^ miles an hour, are proper. In case of the violation of such a statute, the driver, as a general proposition, mil be unable to App.), 186 Pac. 781; Blackburn v. Tt Co. (Pa.). 113 Atl. 370. See also, Marple (Cal. App.), 184 Pac. 875. See section 572. also. Blackburn v. ^Farple (Cal. App.), 29. Section 591. 184 Pac. 873. 30. Carter v. Redmond. 142 Tenn. 24. Newton v. McSweeney. 225 Mass. 258, 218 S. W. 217. 402, 114 X. E. fi67. 31. Central of Ga. Ry. Co. v. Larsen, 25. Mutl.or V. Capps. 38 Cal. App. 19 Ga. App. 413, 91 S. E. 517: Texas, 721. 177 Pac. 882. etc. Co. v. Harrington (Tex. Oiv. 26. Section 568. App.), 209 S. W. 685: Schaff v. Bear- 27. Section 567. den (Tex. Civ. App.). 211 S. W. 503. 28. Walker v. Rodriguez, 139 La. 32. Hinton v. Southern Ry. Co., 172 251, 71 So. 499: Serfas v. Lehigh, etc. X. Car. 587. 90 S. E. 756. ^NEGLIGENCE I.N Oi'EllATiuN" UE MuTuK VEHICLES. 36( recover for personal injuries or damage to the niacliine sus- tained in a collision with a train. The question whether the unlawful speed was a proximate cause of the injury may, of course, remain for determination though the violation is shown."^^ Such a statute has no application to a passenger in the machine having no control over the driver.^^ A regulation as to the speed at a ''highway" crossing may be deemed ap- plicable in case of a highway crossing a steam railroad track, for a railroad is for many purposes deemed a highway.^^ A statute forbidding a speed exceeding six miles an hour by one ''approaching" an intersecting railroad has received a strict construction so as to forbid such speed when ''approach- ing" but not forbidding the speed when close to the railroad and about to pass over the crossing.^*^ And a statute prescrib- ing a speed limit when the view of the crossing is obscured does not apply to one injured at a crossing where the view of Co. . 172 V. Lar- E. 517, 33. Hinton v. Southern Ry. Co., 172 N. Car. 587, 90 S. E. 756. See also, section 300. 34. Baker v. Streater (Tex. Civ. App. ), 221 S. W. 1039; Chicago, etc. R. Co. V. John.«on (Tex. Civ. App.), 224 S. W. 277. 35. Hinton v. Southern Ry. N. Car. 587, 90 S. E. 756. 36. Central of Ga. Ry. Co. sen, 19 Ga. App. 413, 91 S. wherein it was said: "Coming now to the third division of section 5, we find it provided, among other require- ments, that the driver of an automo- bile, in approaching a descent or rail- road crossing, shall have his machine under control, and operate it at a rate oi speed not greater than 6 miles per hour. The statute l>eing penal, a strict construction is required. Sec Renfroc V. Colquitt, 74 Ga. 618; Atlanta v. White & Kreis, 33 Ga. 229. It will be olrserved that the statute provides that on approaching a descent in the road, or a railway crossing, the rules pro- vided must be observed. The statute cioes not in fact require that ;i speed of 6 miles per hour shall Ix- main- tained while the machine is making the descent of a hill or incline; and we think this construction is based upon good reason, the object of the statute, in this respect, being to require the traveler, on approaching the crest of a hill, and before commencing the de- scent, to slow down his car in order to ascertain whether some other person, whom he could not theretofore discern, might be using the highway on its in- cline. If, however, this requirement of the law be complied with, there is nothing therein contained necessitating the traveler to maintain sucli a re- duced speed down the incline, in the absence of some special cause therefor. We therefore do not think that as a matter of law the fact that the de- cedent might have descended the in- cline just prior to the accident at a greater speed than 6 miles per hour could be adjudged negligence per se. The statute. how(^ver, further requires tliat, in approaching a railway cross- ing, such reduced speed shall be main- tained, and that tlie driver of tiie ma- chine must in such case have his car under control." 368 The Law of Automobiles. the approaching train was obstructed.^ An ordinance pre- scribing the speed at a railroad crossing has no bearing on a collision occurring 125 feet from a crossing.^* Sec. 313. Speed of machine — approaching embankment or descent. In some States, speed statutes prescribe with considerable detail the rate which is permissible under varying circum- stances. For example, in Georgia, a statute has been enacted limiting the speed of a motor vehicle to six miles an hour when approaching a high '' embankment. "^^ And the same statute makes a similar regulation for an automobilist ap- proaching a ' ' descent ' ' in the highway. The word ' * descent ' ' is construed to mean a declivity in the highway over which, from ordinary experience and observation, it would be deemed more dangerous to operate an automobile at an excessive speed than upon level ground.** 37. Schaff V. Bearden {Tex. CiT. App.), 211 S. W. 503. 38. Vithoven v. Snyder (Mich.), 182 N. W. 80. 39. Strickland v. Wliatley, 142 Ga. 802, 83 S. E. 856. 40. Elsbery v. State, 12 Ga. App. 86. 76 S. E. 779, wherein the court said: "The maxim, 'Noscitur a sooiis,' is ap- plicable, and the word ' descent,' as used in section 5 of the act, will be held to mean a declivity in the high- way over which from ordinary human experience and observation it would b© deemed to be more dangerous to oper- ate an automobile at an excessive rate of speed than upon level ground. The General Assembly could not have in- tended to make it a crime to operate an automobile at a greater rate of speed than six miles an hour at every point along the highway where there was a slight incline, and where it would be no more dangerous to oper- ate a machine at twenty miles an hour than it would be upon level ground. It would be impossible, of course, to designate the exact degree of incline that the General Assembly had in mind in using this word. But upon the ap- jilication of common knowledge with reference to the highways of this State the courts and juries may well be left to say whether or not a ma- chine was operated upon a declivity where it would be more dangerous to run at an excessive rate of speed than it would upon level ground. The only fair test, it seems to us, which can be applied in determining whether a crime has been committed, would be to sub- mit to the jury in each case the ques- tion whether or not the operation of the machine upon the particular de- scent in question would likely be more dangerous to human life and limb or the safety of property than if the ma- chine were being operated upon ordin- ary level ground. What the General Assembly evidently had in mind was such an incline on the highway as is commonly denominated a hill; that is, a descent of such degree as that ordi- narily prudent persons, in approach- ing it in an automobile, would check the speed of the machine." Negligence in Operation of Motor Vehicles. 369 Sec. 314. Speed of machine — over bridges. Obviously, it is expedient to fix the speed limit for motor vehicles over or approaching bridges, and frequently specific regulations are made applying to traffic at bridges ;*^ but it is not necessary that the regulation specify a particular rate for such structures. A bridge is a part of the highway, so that a regulation applicable to highways in general will apply to bridges.^^ Sec. 315. Speed of machine — past children in street. "When passing a place where children are playing in the street, an automobilist should have his machine under control and be running at a speed which will enable him to avoid the children if they do not discover his approach.^^ And, when passing a schoolhouse, a lower rate of speed is required of the driver of a motor vehicle than is permissible at some places where the danger of injury to children is not so great.'** It has been held to be gross negligence for the operator of an automobile to drive his machine at the rate of five or six miles an hour through a crowd of children who are playing in the street.*^ Sec. 316. Speed of machine — frightening horses. Both motor vehicles and horse-drawn conveyances have the right to the use of the highways, each class being bound to the exercise of reasonable care for the avoidance of injuries to the other class.'*^ Experience, however, has shown that, when an automobile and a horse-drawn vehicle are using the same highway, there is greater danger of injury to the occupant of the carriage than to one riding in the automobile. Therefore statutes have generally placed certain duties on the driver of the machine, such as requiring that warning of his approach be given, or that he does not exceed a given rate of speed. A 41. Ham v. Los Angeles County And see section 418. (Cal. App.), 189 Pac. 462. 44. Tripp v. Taft, 219 Mass. 81, 106 42. City of Baraboo v. Dwyer, 166 N. E. 578. Wis. 373, 165 N. W. 297. 45. Haaeke v. Davis, 166 Mo. App. 43. Bohringer v. Campl)ell, 154 N. 249. 148 S. W. 450. Y. App. Div. 879. 137 N. Y. Suppl. 241. 46. Section 518. 24 370 The Law of Automobiles. speed greater than six miles an hour has been prohibited when the auto driver is passing a horse.^' Indeed, one very com- mon form of regulation requires that the driver of the motor vehicle shall bring his machine to a stop when he is signaled so to do by the driver of a horse or team/^ But independent of statute, the driver of a motor vehicle may be guilty of negli- gence where he drives his machine at such an unreasonable speed that he frightens a horse on the highway.*^ Sec. 317. Speed of machine — regulation prohibiting "un- reasonable" speed. In some States statutes have been enacted prohibiting the operation of motor vehicles at unreasonable speeds. This is precisely what the common law prohibits in the absence of statute. Nevertheless the statutes have some effect other than a mere codification of the common law principle. For example, their infraction might be held to constitute a criminal offense when the same speed in the absence of statute would not justify a criminal prosecution.^'' But in one jurisdiction, 47. Carter v. Caldwell, 183 Ind. 434, l as. 1912 D, 734) and Tobacco Trust 109 N. E. 355. Case ((221 U. S. 107, 31 Sup. Ct. 632, 48. Sections 536-.'J39. 55 L. Ed. 663) were decided by the 49. Brinkman v. Pacholke, 41 Ind. Supreme Court of the United States. App. 662, 84 N. E. 762; Delfs v. Dun- In those cases the Supreme Court of shee, 143 Iowa, 381, 133 N. W. 236. the United States read into the statute 50. State v. Goldstone (Minn.), 175 the so-ealled 'rule of reason,' holding N. W. 892; State v. Schaeffer, 96 that the Anti-Trust Act really was not Ohio, 215, 117 N. E. 220; People v. a denial of all restraint of trade, but Falkovitch, 280 111. 321, 117 N. E. 398. only a denial of unreasonable restraint "The legislature, however, in this in- of trade. It would hardly be suggested stance, saw fit to fix no definite rate of that the Supreme Court of the United speed for the car, except to require that States read into the statute something the car should not be operated at a that made the statute unconstitutional, speed 'greater than is reasonable or or read into the statute something that proper, having regard for width, made it so indefinite and uncertain traffic, use and the general and usual that it was incapable of advising the rules of such road or highway, or so public as to what was or was not an as to endanger the property, life or ofi"ense under it, or that made the stat- limb of any person. In short, the leg- ute practically unenforceable. And islature wrote into the statute what yet, by parity of reason, it is claimed has become known as the 'rule of rea- in this case that the legislature, wliich son' ever since the Standard Oil case wrote into the statute the same 'rule (221 U. S. 1, 31 Sup. Ct. 502, 55 L. of reason,' thereby in effect nullified Ed. 619, 34 L. R. A. [N. S.] 834, Ann. such statute, because of the indefinite- Negligence in Operation of Motou \'j:hi("les. 371 it has been held that the i)art of a statute which merely pro- hibits the operation of an automobile .at a rate of speed greater than is reasonable and proper is too indefinite and uncertain in its terms to he capable of enforcement in a criminal prose- cution, but nevertheless furnishes a measure of care as a rule for civil conduct. ^^ In other States such statutes are sus- tained."^ A common roini of regulation is one which pro- hibits an unreasonable rate of speed and then expressly for- bids speed in excess of a certain limit in all cases or under particular circumstances.^' Under such a regulation it is generally a question for the jury whether a speed lower than maximum rate is unreasonable,^* but in some States a speed exceeding the limit may constitute negligence per se.^^ In other States, a speed greater than the maximum limit creates iic'ss and uncertainty of its terms. The contention is not sound. The sugges- tion that juries on the same state of facts may hold one way in one county, and another way in another county, indeed, that in the same county, upon tlie same state of facts, one jury may liold one way and another hold another way, is no argument against this con- tention. That is inevitable under any system of jurisprudence on any set of facts involved in a criminal transac- tion. Courts differ in their judgment; juries difTer in their judgment; but that is no reason for the abolition of eitlier, or for denying them jurisdic tion suiTicient to enforce the adminis- tration of statutes like the one in question. In our whole criminal pro- cedure, even in capital and tlie most atrocious cases, where a man's life and liberty for life are involved, it is made the special province and duty of juries to determine what is 'reasonable,' and whether or not theio is a 'reasonable' doubt of the defendant's guilt. Of course, that is a conclusion — almost in- capable of precise and siH'cifie defini- tion. What one jury might hold to be a reasonable doubt, anotlier jury would hold the contrarv; and still there is no way other than to leave the ques- tion to the jury to determine what is and what is not a 'reasonable doubt.'" Stiiti- V. Schaeffer, 96 Oliio. 215. 117 X. iO. 220. 51. Empire L. Ins. Co. v. Allen, 141 Ga. 413, 81 S. E. 120; Strickland v. Whatley, 142 Ga. 802, 83 S. E. 856; Hayes v. State, 11 Ga. App. 371. 75 S. E. 523; Elsbury v. State. 12 Ga. App. 86, 76 S. E. 779; Quarles v. Gem Plumbing Co., 18 Ga. App. 592, 90 S. E. 92. See also, Solan & Billings v. Pasche (Te.x. Civ. App.). 153 S. W. (-.7 2. 52. See sections 66, 732. 53. Hoobile was e.xcceding the speed limit prescribed by the ^^otor Vehicle Act is not the controlling factor, but is only a circumstance to l>e consideied in de- ciding wlietlier or not the defendant was running his automobile at a rate of speed wliieh. under the existing con- ditions, was obviously dangerous to pedestrians or others using the high- way. \ man who delil>erately drives his oar into a ma.ss of j>eopie standing in the street looking at a baseball score board is guilty of assault and battery for running over some of them, although hig automobile is traveling far below the speed limit; whereas, one driving on a lonely country road with no pedestrians on it in sight might be eritirely guiltless of the crime of as- sault and battery for running over a child which suddenly darted from a concealed position by the iiighway. al- though the automobile at thi- time was exceeding the speed limit." State v. Schutte, 88 N. J. L. 396, 96 Atl. 659. 70. Granger v. Farrant, 179 :Mich. 19, 146 N. W. 218: Westovor v. Grand Rapids R. Co, 180 Mich. 373. 147 N. W. 630: Weber v. Beeson. 197 Mich. 607, 164 X. W. 255. See also. Lcvvn v. Koppin. 183 Midi. 232. 149 N. W. 993. 71. Section 297. 72. California. — T.Awrence v. Good- will (Cal. App.), 186 Pac. 781: Ham V. Los Angeles County (Cal. A[)p. ). 189 Pac. 462: Berges v. Guthrie (Cjil. App.). 197 Pac. 356: Spring v Mc('al>e (Cal. App.l. 200 Pac. 41. 376 The Law of Automobiles. bile in excess of the prescribed limit, whether the excess is large or small.^^ The fact that the police officers of a muni- cipality have resolved not to enforce a speed ordinance, does not affect the evidentiary value of its violation.'^'' Sec. 322. Speed of machine — excessive speed as prima facie evidence of negligence. In several States, the law is expressly stated by statute to the effect that the violation of the limit fixed by the statute is prima facie evidence that the speed in question was excessive.''^ Such a statute creates a presumption of the plaintiff's con- tributory negligence, if violated by him, equally as it shows Colorado. — Denver Omnibus & Cab Ck>. V. Mills, 21 Colo. App. 582, 122 Pac. 798. Delaware. — Travels v. Hartman, 5 Eoyce, 302, 92 Atl. 855; Lenimon v. liroadwater, 30 Del. (7 Boyce) 472, 108 Atl. 273. Georgia. — Coluraibus R. Co. v. Wal- ler, 12 Ga. App. 674, 78 S. E. 52; O'Dowd V. Newnham, 13 Ga. App. 220. 80 S. E. 36; Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517; Ware v. Lamar, 18 Ga. App. 673, 90 S. E. 364. Indiana. — Fox v. Barekman, 178 Ind. 572, 99 X. E. 989; Carter v. Caldwell, 183 Ind. 434, 109 N. E. 355. Iowa. — Hubbard v. Bartholomew, 163 Iowa, 58. 144 N. W. 13. See O'Neil V. Redfield, 158 Iowa, 246, 139 N. W. 555. Kansas. — Fisher v. O'Brien, 99 Kans. 621, 162 Pac. 317; Barsfield v. Vuck- lich, 197 Pac. 205. Minnesota: — Riser v. Smith, 136 Minn. 417, 162 N. W. 520. Mississippi. — Ulmer v. Pistole, li') Miss. 485. 76 So. 522. Missouri. — Roper v. Greenspon, 272 Mo. 288, 198 S. W. 1107; Barton v. Faeth, 193 Mo. App. 402, 186 S. W. 52; Carradine v. Ford, 195 Mo. App. 684, 187 S. W. 285. OMo. — Schell V. Dubois, 94 Ohio, 93 J13 N. E. 664; Weimer v. Rosen, 100 Oliio, 361. 126 N. E. 307. Houth Carolina. — Whaley v. Osten- dortf, 90 S. 0. 281, 73 S. E. 186; Mc- Loon V. Muldrow, 91 S. C. 523, 74 S. E. 386. Tennessee. — iLauterbach v. State, 132 Tenn. 603, 179 S. W. 130. Texas. — Keevil v. Ponsford (Civ. App.), 173 S. W. 518; Solon v. Pasche (Civ. App.), 153 S. W. 672; Schoell- kopf Saddlery Co. v. Crawley (Civ. App.), 203 S. W. 1172; Carvel v. Kusel (Civ. App.), 205 S. W. 941; Southern Traction Co. v. Jones (Civ. App.), 209 S. W. 457; Flores v. Garcia (Civ. App.), 226 S. W. 743. Wisconsin. — ^Ludke v. Burck, 160 \Vis. 440, 152 N. W. 190, L, R. A. 1915 D. 968; Higgles v. Priest, 163 Wis 199, 157 N. W. 755; Foster v. Bauer, 180 N. W. 817. 73. Carter v. Caldwell, 183 Ind. 434, 109 N. E. 355. 74. Riser v. Smith, 136 Minn. 417, 162 N. W. 520. 75. Alabama. — Gilbert v. Southern Bell Telep. & Teleg. Co., 200 Ala. 3, 75 So. 315; Hood & Wbeeler Furniture Co. v. Royal (Ala. App.), 76 So. 965. Connecticut. — Radwick v. Goldstein, 90 Conn. 701, 98 Atl. 583. Illinois. — Hartje v. Moxley, 235 111. 164, 85 N. E. 216; People v. Falko- Negligence in Opekatiux ui Motor Vehicles. 377 the negligence of the defendant if violated by the defendant.'^ Under such a statute, one exceeding a speed limit is prima facie guilty of negligence, yet he is allowed, by reason of the terms of the statute, an opportunity to show that the speed in the particular case was reasonable and proper under the surrounding circumstances." The law does not regard a greater speed as negligence, but as prima facie evidence of negligence ; and when such speed is shown, it is not necessary to show further conditions that make that rate unreasonable.''* Under some statutes, the prima facie case of negligence arises only when the excessive sjjeed has been maintained for a cer- tain distance, such as an eighth or a ([uarter of a niile.'^ It vit^-h, 280 111. 321. 117 N. E. 398; Kessler v. Washburn, 157 111. App. 532; People V. Lloyd, 178 111. App. 66; Bruhl V. Anderson. ISO 111. App. 461; Petty V. Maddox, 190 111. App. 381; Berg v. Michell, 196 111. App. 509: People v. Kelly, 204 111. App. 201; Link v. Skeeles, 207 111. App. 48: Brautigan V. Union Overall Laundry Co.. 211 111. App. 354; Mastcn v. Cousins, 216 111. App. 268. See also, Fippinper v. Glos, 190 ni. App. 238. lotca. — Schultz V. Starr, 180 Iowa, 1319, 164 N. W. 163; Larsh v. Stras- Ben, 183 Iowa. 1360, 168 K. W. 142; Shaffer v. Miller, 185 Iowa, 472, 170 N. W. 787; Dice v. Johnson, 175 N. W. 38; McSpadden v. Axmear (Iowa), 181 N. W. 4. Kentucky. — Wade v. Brents, 161 Ky. 607, 171 Ky. 188; Forjry v. Rutledge, 167 Ky. 182, 180 S. W. 90; Moore v. Hart, 171 Ky. 725. 188 S. W. 861. Missouri. — Nafgiezer v. Mahan (Mo. App.), 191 S. W. 1080; City of Wind- sor V. Bast (Mo. App.), 199 S. W. 722. Instructions. — Under the Illinois law, which provides that in an action to re- cover damages caused by running an automobile at a greater speed than fifteen miles per hour a prima facie case shall be made by showing the in- jury and excessive speed, it was held, in an action for injuries to the plain- tift', whose horse was friirlitoncd l>y the defendant's autf)mobile. that an in- struction in t)ie language of the stat- ute as to tho facts sufTicient to make out a prima facie ease in an action for injuries caused by excessive speed was not erroneous on the theory that it ignored the question as to whether the injuries were occasioned by running the automobile at an excessive speed. Ward V. Meredith, 220 J 11. 66, 77 X. E. 119. Burden of evidence.- ."^uch a statute does not necessarily change the burden of proof, but may merely shift the bur- den of evidence. Duprat v. Chismore iVt.). 110 Atl. 305. 76. McSpodden v. Axmear (Iowa), 181 N. W. 4. 77. Badwick v. Goldstein, 90 Conn. 701, 98 Atl. 583 ; Hartje v. Moxley, 235 111. 164. 85 N. E. 216: Berg v. Michell, 196 111. App. 509: Moore v. Hart, 171 Ky. 725, 188 S. W. 861; Holland v. Yellow Gab Co., 144 Minn. 475, 175 N". W. 536; Flowerree v. Thornberry (Mb. App.), 183 S. W. 359; People v. Mellen. 104 Miso. (N. Y.) 355. 78. Berg v. Mitchell. 196 III. App. 509; People v. Fitzgerald, ml Misc. (N. Y.) 695. 168 N. Y. Suppl 030. 79. Flowerree v. Thornberry (Mo. .\pp.), 183 S. W. 359. 378 The Law or Automobiles. is generally a question for the jury whether the speed under consideration is excessive under the circumstances of the par- ticular case.^° The driver may succeed in showing circum- stances which will relieve him from criminal liability, though he was running the machine at as high a rate as forty-two miles an hour.^^ Wliere in an action to recover damages for personal injuries alleged to have been caused by the negli- gence of the defendant in driving his motor car at too rapid a speed and hitting the plaintiff as he was crossing the street, the trial court instructed the jury that a failure to comply with the requirements of the statute respecting the operation of such vehicle on the highway, from which an injury resulted, gave to the injured person a cause of action if his own negli- gence did not materially contribute to tlie injury, but omitted to say in so many words, that the burden rested upon the plaintiff to prove the negligence charged, as well as his own exercise of due care, and no request was made to so instruct them, it was held that under these circumstances the omission to charge more specifically respecting the burden of proof as to negligence and contributory negligence was not a sufficient ground for granting a new trial.*^ Sec. 323. Speed of machine — excuse for violation of speed reflation. Many and various are the excuses that are offered by drivers accused of speeding, the following being a few of those most commonly given: Thoie was a sick person in the car; a physician was speeding to the bedside of a patient; it was raining hard; the car was speeding up temporarily to get out of the dust of the car ahead. In some instances magistrates and judges have discharged motorists for one of the above reasons, while in other cases they have utterly refused to listen to excuses of this nature. May there not be circum- stances under which the operation of an automobile at exces- sive speed is excusable morally and legally, and which is the 80. People v. Lloyd, 178 111. App. Y.) 355. 66; Schaffei- v. Miller. 185 Iowa, 472. 82. Wolfe v. Ives, 83 Ck)nn. 174, 7« 170 N. W. 787. Atl. 526. 19 Ann. Cas. 752. 81. People V. Mellen. 104 Misc. (N. NeGLIUKNCK l.V Ol'KRATIOX OF MoTOR Vkhuliv-. 379 jjrojK'i- course Toi- a judge to pursue.' The various State auto- mobile laws say that motor veliieles shall not ])e driven faster than certain rates of speed. Generally, there are no excep- tions or provisos in these laws permitting the speed limits to he exceeded, and consequently there exists no judicial dis- cretion to discharge arrested automobilists on any of the grounds mentioned. However, since all laws must be en- forced by means of human agency, "humanity" must neces- sarily enter into the execution of any particular statute. It should not be forgotten that "intention" has no place in viola- tions of the speed law. Whether the arrested automobilist "knew" that he was exceeding the speed limit makes no dif- ference in regard to his innocence or guilt. The law says that he who operates an automolule drives it at his peril if he ex- ceeds the speed limit. But there is certainly an unfairness in "trapping" an automobilist who does not intentionally speed for the sake of creating a race or showing off. Just what to do to prevent oppression by officers of the law on the one hand and to curb reckless automo'biling on the other is the great question.^ Sec. 324. Speed of machine — neg-ligence thougfh not exceed- ing speed limit. The fact that a regulation has established a rate of speed beyond which an automobilist cannot drive his machine does not under all circumstances justify him in running at such speed.^^ He should not operate his vehicle at a rate which is 83. Emergency Calls. Motor vehicle Cannecticut. — Invin v. Judge, 81 liiws in ii few St-ate.-^ make an exec^p- Conn. 492, 71 Atl. 572. tion in cases when the driver is an- Illinois. — Kessler v. Washburn. 157 swering an "emergency call." Fair v. 111. App. 532; Bohm v. Dalton, 206 111. Union Tract. Co, 102 Kans. 611. 171 App. 374. Pac. 649; Opocensky v. City of South Indiana. — Brinkman v. Pacholke, 41 Omaha, 101 Neb. 336, 163 k. W. 32.->. Ind. App. 662. 84 N. E. 762. 84. Arkansas. — Bona v. S. B. Thomas /oioa.^Delfs v. Dunshee. 143 Iowa, Auto Co., 137 Ark. 217. 208 S. W. 30G. 381. 133 >r. W. 236: I*mke v. Ady, C«ri/or>ii«.— Cook v. Miller, 175 Cal. 159 X. AV. 1011; ShafTer v. Miller, 185 497, 166 Pac. 316; Opitz v. Scheney. Iowa, 472. 170 N. W. 787. 174 Pac. 40: Gross v. Burnsidc. 109 Kentucky. — Forg}- v. Rutledge, 167 Pi,e. 780. K.v. 182, 180 S. W. 90; Moore v. Hart, 380 The Law of Auto.mobh.ks unreasonable under the circumstances/^^ and it is sell* evident that under the particular circumstances of many cases the rate allowed bj^ statute or ordinance would be excessive.^"' As was said in one case,^' "No owner or operator of an automo- bile is necessarily exempt from liability for collision in a pub- 171 Ky. 725, 188 S. W. 861. "It will not to say that the provisions of the statute as to the effects and conse- quences of a violation of tlie speed limits therein mentioned is evidentiary only, so as to justify the submission of the case to the jury when those limits are exceeded, because it is the law everywhere so far as Ave are aware, that such provisions may be strictly com- plied with and yet the party sought to be cliarged may be guilty of action- able negligence. In other Avords, in this particular case the speed may not have exceeded 20 miles per hour, still this would not be an absolute defense, as other facts and circumstances may have justified the submission of the case t« the jury. On the contrary, defend- ant may have been traveling at a rate of speed greater than 20 miles an hour, and under the facts and circumstances, not be guilty of negligence. When the plaintiff shows that the rate of speed at which the defendant was traveling was greater than that prescribed by the statute for that place, the burden then shifts to the defendant to show that the speed at which he was traveling did not produce the injury." Moore v. Hart, 171 Ky. 725, 188 S. W. 861. Massachusetts. — Basmussen v. Whip- ple, 211 Mass. 546, 98 N. E. 592. Michigan. — Patterson v. Wagner, 204 Mich. 593, 171 N. W. 356; Hawkins v. Ermatinger, 179 N. W. 249. Minnesota. — ITinkcl v. Stcmper, 180 N. W. 918. Missouri. — Gintei v. O'Donoghue (Mo. App.), 179 S. W. 732; Denny v, Randall (Mo. App.), 202 8. W. 602. North Dakota.— Yannett v. Cole, 170 N. W. 663. Pennsylvaiikt. — Flanigan v. McLean (Pa.), 110 Atl. 370. So-iith Dakota. — Chrestenson v. Harms, 38 S. D. 360, 161 N. W. 343. Tennessee. — West Constr. Co. v. White, 130 Tenn. 520, 172 S. W. 301. Texa^. — Figuerora v. Madero (Civ. App.), 201 S. W. 271. Utah. — Lochhead v. Jenson, 42 Utah, 99, 129 Pac. 347; Fowlkes v. J. I. Case Threshing Mach. Co., 46 Utah, 502, 151 Pac. 53. Washi/ngton. — Adair v. McNeil, 05 W:,sh. 160, 163 Pac. 393. Compare Weimer v. Eosen, 100 Ohio, 361, 126 N. E. 307. 85. Section 305. 86. ' ' Tlie iiilo — speed limitation by ordinance or no speed limitation— is the general ami well-established one applying to motor vehicles as to all othei' vehicles, and is that their oper- ators must use aU the care and cau- tion in operating them which careful and piiulent men should exercise, hav- ing due regard for the safety of the public and the rights of others to the use of the streets. The operator of a vehicle niny not escape liability for a collision by simply saying that he was not exeeerling the speed limit estab- lished by statute or ordinance when it hapfjeued. It may appear (the other party being without fault) that though a defendant was not exceeding the limit of speed prescribed by the ordinance, yet that he was operating his vehicle under the particular circumstances as a careful and prudent man in the exer- cise of due care and caution would have had." Opitz v. Schenck (Cal.), 174 Pac. 40. 87. Kessler v. Washburn. 157 111. App. 532. Negligence in Opkratiox of Motor Vehicles. 381 lie 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 the law or the ordinances. On the contrary, he still remains bound to anticipate that he may meet persons at any point in the public street and he must keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person, using proper care and caution ; and if necessary, he must slow up and even stop. No blowing of a horn or of a whistle or ringing of a bell or gong, without an attempt to slacken the speed, is sufficient, if the circumstances at a given point demand that the speed be slackened or the machine be stopped, and such a course is reasonably practicable."^^ But one claiming that a speed less than the prescribed limit is negligent under the circumstances has the burden of proof to show the circumstances requiring a slower rate.^ Sec. 325. Speed of machine — province of jury. Speaking in general terms, whether a person has been guilty of negligence is a question for the jury.^*^ And, whether one operated a motor vehicle at a speed faster than a reasonable and proper rate, is peculiarly a question within the province of the jnry.^^ It is true that in some jurisdictions, when it is 88. And see to the same oflfeet : Iowa. — Topper v. Maple, 181 Iowa, Thies V. Thomas, 77 N. Y. Suppl. 276. 786, 165 N. W. 28. See also, McSpad- 89. Lochhead v. Jenson, 42 Utah, 99, den v. Axmear (Iowa), 181 N. W. 4. 129 Pac. 347. Konsa^s. — Arrington v. Horner, 88 90. See section 359. Kans. 817, 129 Pac. 1159; Barshfield 91. Ari^otia.—WaTien Co. v. Whitt, v. Vucklich (Kans.), 197 Pac. 205. 103 Wash. 284, 165 Pac. 1097. Michigan. — Hawkins v. Ermatinger, California.— B&musteT v. H. Jevne 179 N. W. 249. Co., 28 Cal. App. 133, 151 Pac. 546. Missouri. — Priebe v. Crandall (Mo. Colorado. — Martin v. Carruthers, 195 App.), 187 S. W. 605; Schinogle v. Pac. 105. Baughman (Mo. App.), 228 S. W. 897. Connecticut. — Griffen v. Wood, 93 Nchraslopulated part of the large city to exer- cise reasonable care to see that he has the instrumentality under control, and to so manage it that it will not un- reasonably or unnecessarily imperil the safety of others upon the public high- way. Whether the defendant did this in this particular case was clearly a question for the jury. The jury might well liave found, that if the defendant had his automobile under such perfect control as he should have had on a pub- lic street, and was giving reasonable attention to it, lie might have avoided the collision with the flange at the .switching point, or, having collided with it, might have stopped the same in time to have avoided the injury complained of. ' ' Brown v. Des Moines Steam Bot- Negligence in Operation of Motor \^ehicles. 383 principle is, for practical purposes, the same as the rule re- quiring the driver to operate the machine not faster than a reasonable and proper rate of speed.^* Not only must he have the car under reasonable control, so as to avoid a collision with other vehicles,^^ beasts of burden, and pedestrians,^'^ but, for his own safety, he must have the car under such control tling Works, 174 Iowa. 715, 156 N. W. 829. Kentucky. — Weiduer v. Otter, 171 Ky. 167, 188 S. W. 335. Louisiana. — Walker v. Rodriguez, 139 La. 251, 71 So. 499. Michigan. — Granger v. Farrant, 179 Mich. 19, 146 N. W. 218; Westover v. Grand Rapids R. Co., 180 Mich. 373, 147 N. W. 630. Minnesota. — Molin v. Wark, 113 Minn. 190, 129 N. W. 383; Johnson V. Johnson, 137 Minn. 198, 163 N. W. 160. Mississippi. — Ulmer v. Pistole. 115 Miss. 485, 76 So. 522. Missmiri. — Rowe v. Hammond. 172 Mo. App. 203, 157 S. W. 880; Priebe V. Crandall (Mo. App.), 187 S. W. 605; Mitchell V. Brown (Mo. App.), 190 S. W. 354; Roper v. Greenspon (Mo. App.), 192 S. W. 149. New Jersey. — Pool v. Brown, 89 N. J. Law. 314, 98 Atl. 262. New ¥ork. — Thies v. Thomas, 77 N. Y. Suppl. 276. North Carolina. — Manly v. Aber- nathy, 167 N. Car. 220, 83 S. E. 343. Oregon. — Weygandt v. Bartle, 88 Oreg. 310, 171 Pac. 587. Pennsylvania. — Lorah v. Rinehart, 243 Pa. St. 231, 89 Atl. 967; Virgilic V. Walker, 254 Pa. St. 241, 98 Atl. 815: Anderson v. Wood, 264 Pa. St. 98, 107 Atl. 65^8. "Vehicles have the right of way on the portion of the highway set apart for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest pos- .<5ible notice, they can stop their cars so as to prevent danger to pedestrians." Virgilio v. Walker. 254 Pa. St. 241, 98 Atl. 815. Fi)77ir)jV7.— Core v. Wilhelm, 98 S. E. 27. Washington. — Locke v. Greene. 100 Wash. 397, 171 Pac. 245. " The test of control is the ability to stop quickly and easily. When this result is not accomplished, the infer- ence is obvious that the car was run- ning too fast, or that proper effort to control it was not made. If dangerous and powerful machines, such as auto- mobiles, whose weight, when in motion, gives them great momentum, are to be permitted to use the public highways, prudence requires that they be kept un- der good control so that they may promptly be brought to a halt, if need be." Lo'rah v. Rinehart. 243 Pa. St. 231, 89 Atl. 967. Hands on steering wheel.— It has been held gross negligence for a driver to take his hands off the steering wheel while the machine was moving at a high rate of speed. Borys v. Christow- ski, 9 Sasn. (Canada) 181. 94. See section 305. "In a crowded city street, the dictates of common prudence clearly require that a heavy vehicle, such as an automobile, shall be kept under control so as to avoid, or at least minimize, the dangers of a colli- sion. Common experience and observa- tion shows that the only adequate method of control is to run the ma- chines slowly." Lorah v. Rinoliart. 243 Pa. St. 231. 89 Atl. 967. 95. Section 370. 96. Sections 441-445. 384 The Law of Automobiles. that he can avoid a collision Avith an approaching street car '^ or railroad train.^^ It is sufficient, however, if the driver keeps the machine under reasonable control, it not being neces- sary that it be kept under absolnte control.^^ Except under unusual circumstances, he is not required to have the machine under such control that he can stop instantly} When proceed- ing along the wrong side of the highway, greater control is required of the driver than when he is proceeding in accord with the law of the road,^ for a greater degree of diligence is generally required of a driver under such circumstances.^ When driving at night, the control of the machine should, to a certain extent, be commensurate with the distance illumi- nated with the lights ; that is, the control of the car should be such that the driver can avoid persons or obstructions in his course within the scope of the lights.* And, when traveling in the day time, reasonable care requires that the machine be under such control that it can be stopped so as to avoid in- jury from an obstruction or a defect in the highway.^ In some jurisdictions, statutes prescribe the rate of speed for motor vehicles and further provide that under some circumstances the machines shall be under "perfect" control.^ Sec. 327. Duty to stop. The general duty of the driver of a motor vehicle is to exer- cise reasonable care under the circumstances.'^ Obviously, the circumstances may frequently be such, especially on a crowded thoroughfare, that an ordinarily prudent driver would stop his machine to avoid an injury to another traveler. In such a case, negligence may be charged against a driver 97. Sections 603-606. 4. Kendall v. City of Des Moines 98. Section 572. (Iowa), 167 N. W. 684; Harnau v. 99. Baldwin's Adm'r v. Maggard, Haight, 189 Mich. 60, 155 N. W. 563; 162 Ky. 424, 172 S. W. 674; GofP v. Healy v. Shedaker, 264 Pa. St. 512, 107 Clarksburg Dairy Co. (W. Va.), 103 S. Atl. 842. J] 58_ 5. Raymond v. Sauk County, 167 1. Twinn v. Noble (Pa.), 113 Atl. Wis. 125, 166 N. W. 29. 686. 6. Molin v. Wark, 113 Minn. 190, 2. Bradley v. Jaeckel, 65 Misc. (N. 129 N. W. 383; Wentworth v. Water- Y.) 509, 119 N. Y. Suppl. 1071. bury, 90 Vt. 60, 96 Atl. 334. 3. Section 280. 7. Section 277. Negligence in Operation of Motor Vehicles. 385 who fails to stop.^ And, though the driver has stopped his machine, negligence may be found in starting again before the danger has ceased.^ While in many cases the driver may be required to stop as a protection to other travelers, such as pedestrians,^" and persons riding in other vehicles, there is a similar duty for his own protection as against railroad engines,^^ and street cars.'- At intersecting streets, whUc both travelers should exercise reasonal)le care for their sal't'ty the machine first at the crossing is generally allowed the i-ight of way, and the latter machine should stop or delay his passage.^^ In addition to the general principles of law requiring a stop- ping of the machine when necessary, a positive duty in tliat respect is sometimes imposed by statute. Thus, it is enacted in many jurisdictions that the driver of a motor vehicle shall stop on the signal of the driver of a horse-drawn conveyance.^* So, too, statutes or municipal ordinances sometimes require 8. California. — Bannister v. H. Jevne Co., 28 Cal. App. 133, 151 Pac. 546. Delaware. — Cecchi v. Lindsay, 1 Boyee, 185, 75 Atl. 376, reversed on other grounds, 80 Atl. 523; Grier v. Samuel, 4 Boyce, 106, 86 Atl. 209; Brown v. City of Wilmington, 4 Boyce, 492, 90 Atl. 44. IlUnais.— Christy v. Elliott, 216 III. 31, 1 L. R. A. (N. S.) 215, 74 N. E. 1035, 108 Am. St. Rep. 196, 3 Ann. Cas. 487. Indiana. — Mayer v. Mellette, 65 Ind. App. 54, 114 N. E. 241. loiva. — Crawford v. McElhinney, 171 Iowa, 606, 154 N. W. 310. Kentucky. — Shiuklo v. McCuUougii, 116 Ky. 960, 77 S. W. 196. Lowisiana. — Kelly v. Schmidt, 142 La. 91, 76 So. 250. Maine. — Meserve v. Libby, 115 Me. 282, 98 Atl. 754. Massachusetts. — Dudley v. Kings- hiiiy, 199 Mass. 258, 85 N. E. 76. Missouri. — Roper v. Greenspon (Mo. App.), 192 S. W. 1419; Heryford v. Spitcanfskv (Mo. .\pp.l. 200 S. W. 25 123; Edwards v. Yarb rough (Mo. App.), 201 S. W. 972. New YorTc. — ^Knight v. Lanier, 69 N. Y. App. Div. 454, 74 K. Y. Suppl. 999. Fennsylvamia. — Reese v. France, 62 Pa. Super. Ct. 128. Washington. — Morrison v. Ccnley Taxicab Co., 94 Wash. 436, 162 Pac. 365. 9. Meserve v. Libby, 115 Me. 282, 98 Atl. 754. 10. Section 442. 11. Sections 567, 568. 12. Section 604. IS. Section 393. 14. Stout v. Taylor, 168 III. App. 410; Mclntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (X. S.) 1130, 8 Ann. Cas. 1087; State v. Goodwin, 169 Ind. 265, 82 N. E. 459; Searcy V. Golden, 172 Ky. 42, 188 S. W. 1098; Beggs V. Clayton, 40 Utah, 389, 121 Pac. 7; Cohen v. Mcader, 119 A'a. 429, 89 S. E. 87fi; Brown v. Thome, 61 Wash. 18, 111 Pac. 1047; McCiinimins V. State, 132 Wis. 236, 112 N. W. 25. And see sections 536-539, 774. 386 The Law of Automobiles. the operators of motor vehicles to stop their machines when approaching a street car receiving or discharging passen- gers.'^ And it is also provided b}^ statute in man}^ States that after a collision with another vehicle or injury to another traveler, the driver shall stop his machine and make his iden- tity known to the injured person.^^ But, independently of statute, it is a general rule that the driver of an automohile shall stop the machine when necessary to avoid injury to other travelers having equal rights in the street. For example, if the operator of a machine is blinded by the light from another vehicle or from a street car, so that he is unable to distinguish an object in front, reasonable care requires that he bring his vehicle to a stop, and a failure so to do may justify a charge of negligence." This situation is the same as when the chauf- feur is suddenly blinded by a reflection of the rays of the sun.^^ So, too, when the steering apparatus becomes out of order so that a car persists in making a circle, it is the duty of the driver to stop the machine and not to continue to describe circles in the street until he is struck by a street car.^^ And, in general, when one approaches a crowded street crossing, if it is imprudent or dangerous to pass the crossing at the time, ordinary care requires that the driver stop his machine.^" Similarly, where a person on horseback apparently does not hear the approach of an automobile from the rear, the person in charge of the car cannot proceed regardless of the fact that the former does not turn out, but should slacken the speed of his machine, even bringing it to a stop if necessary to avoid 15. Frankel v. Hudson, 271 Mo. 495, berts, 192 Mich. 25, 158 N. W. 170; 196 S. W. 1121; Meenach v. Crawford Hammond v. Morrison, 90 N. J. L. 815, (Mo.), 187 S. W. 879; Horowitz v. 100 Atl. 154; Jacquith v. Worden, 73 Gottwalt (N. J.), 102 Atl. 930; Kolan- Wash. 349, 132 Pac. 33, 48 L. E. A. kiewiz v. Burke, 91 N. J. L. 567, 103 (N. S.) 827. Atl. 249; Crombie v. O'Brien, 178 N. 18. O'Beirne v. Stafford, 87 Conn. Y. App. Div. 807, 165 N. Y. Suppl. 858; 354, 87 Atl. 743, 46 L. R. A. (N. S.) Zimmerman v. Mednikoff, 165 Wis. 333, 1183. 162 N. W. 349. And see sections 423- 19. Kneeshaw v. Detroit United Ry., 427. 3 69 Mich. 697, 135 N. W. 903. 16. Sections 775-779. 20. Crawford v. McElhinney, 171 17. Buzich V. Todman, 179 Iowa, Iowa, 606, 154 N. W. 310. 1019, 162 N. W. 259; Jolman v. Al- Negligence in Operation of Motor Vehicles. 387 a collision.-^ But the driver of a motor vehicle proceeding along the proper side of a highway of sufficient width to en- able an easy passage is not necessarily guilty of negligence in failing to stop when he sees a traveler approaching on the wrong side of the highway, for he is entitled to assume that the traveler will cross to the proper side before a collision.^^ Sec. 328. Negligence in stopping. The duty of exercising reasonable care under the circum stances may in some cases forbid an abrupt stop. For ex- ample, when another car is following closely behind, the driver of the forward car may be guilty of negligence if he suddenly slows up or stops so that the driver of the rear vehicle is un- able to avoid a collision.^^ Or one may be found negligent in stopping the machine near the center of the road instead of at the side, when it is desired to light the lights or to make repairs.-* Sec. 329. Warning of approach — in general. Reasonable care requires that, at street crossings and other places where travelers may naturally be anticipated, a warn- ing of the approach of a motor vehicle shall be given by its driver.^"^ One intending to back his machine in a street should 2L Furtado v. Bird, 26 Cal. App. theioV)y add to its fright, he may be 153, 146 Pac. 58. liable for the damages which would 22. Clarke v. Woop, 159 N. Y. App. arise from the fright of the animal. Div. 4.S7, 144 N. Y. Suppl. .595. Delfs v. Dunshee, 143 Iowa. 381. \21 23. Strever v. Woodard. 178 Iowa, N. W. 236. 30, 158 N. W. 504; Strapp v. .lorahek 24. Haynes v. Doxie CCal. App.), 198 (Minn.), 175 N. W. 1003. Pac 39. Negligence in stopping. Negligeme 25. Arlansofi. — Texas Motor Co. v. may be based on the act of stopping an Ruffington. 134 Ark. 320. 203 S. W. automobile, as well as a failure to stop. 1013. Should an automobilist suddenly stop Cnlifornw. — Gross v. Burnside his machine while running along the (Cal.), 199 Pac 780. highway and as a result thereof an- Connectinit. — Lynch v. Shearer. 83 other car .should run into the rear of Conn. 73, 75 Atl. 88. it, it is clear that negligence on the Georgia. — O'Dowd v. Newnhnm. ^^ part of the driver of the forward car (ia. App. 220. RO S. E. 36. could be sustained. And, if an autfl- Illinois. — Coppnck v. Schlatter. 193 mobilist after passing a frightened Til. App. 255; Xoonan v. Mans. 107 horse should stop in front of it and 111. App. lO.'i. 388 The Law of Automobiles. give a warning.-'^ If tlie operator of such a vehicle fails to give a proper warning and injury is thereby occasioned to a pedestrian or other traveler, negligence may hv cliarged against the driver. In the absence of ])ositive regulation requiring the warning, its absence is not necessarily negli- gence but presents a question for the jury.-' Other travelers, to a certain extent, are entitled to rely on the belief that the drivers of motor vehicles will give them a proper warning.^^ The question of warning in a given case is generally com- plicated with additional facts of excessive speed and lack of proper control of the machine. To run an automobile at an Indiana.— J. F. Darmondy Co. v. Reed, 111 N. E. 317. Kentucky. — ^Weidner v. Otter, 171 Ky. 167, 188 S. W. 335; Collett v. Standard OU Co., 186 Ky. 142, 216 S. W. 356; Adams v. Parrish, 225 S. W. 467. Lmiisiava. — Kelly v. Schmidt, 142 La. 91, 76 So. 250. Massachusetts. — Gifford v. Jennings, 100 Mass. 54, 76 N. E. 233. Michigan. — Wright v. Crane, 142 Mich. 508, 106 N. W. 71, 12 Det. Leg. K. 794; Levyn v. Koppin, 183 Mich. 2.';2, 149 N. W. 993. , Minnesota.- — Johnson v. Quinn, 130 Minn. 134, 153 X. W. 267; .Tohnson v. Johnson. 137 Minn. 198. 163 N. W. 160; Dunkelbeck v. Meyer, 140 Minn. 283, 167 N. W. 1034. Missouri. — Young v. Bacon (Mo. App.\ 183 S. W. 1079: Brooks v. Harris (Mo. App.), 207 S. W. 293. New Hampshire. — Hamel v. Pea- r.ody. 78 N. H. 585, 97 Atl. 220. New Jersey. — Pool v. Brown, 89 N. J. Law, 314, 98 Atl. 262; Heckman v. Cohen, 90 N. J. L. 322, 100 Atl. 695. . New Yorfe.— Wolcott v. Renault Sell- ing Branch, 223 N. Y. 288. 119 N. E. 556, reversing 175 App. Div. 858; Gross V. Foster, 134 N. Y. App. Div. 243, 118 N. Y. Suppl. 889 ; Bohringer v. Camp- Lell, 154 N. Y. App. Div. 879, 137 N. Y. Suppl. 241; Hood v. Stowe, 191 N. Y. App. Div. 614. 181 N. Y. Suppl. 734; Bradley v. Jaeckel, 65 Misc. (N. Y.) 509, 119 N. Y. Suppl. 1071; Dultz v. Fischowitz, 104 N. Y. Suppl. 357; Signet V. Werner, 159 N. Y. Suppl. 894. North Carolina. — Manly v. Aber- nathy, 167 N. Car. 220, 83 S. E. 343. Wcshington. — Segerstrom v. Law- rence, 64 Wash. 245, 116 Pac. 876; Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890; Moy Quon V. M. Furuya Co., 81 Wash. 526, 143 Pac. 99. Vermont. — Dervin v. Frenier, 91 Vt. 398, 100 Atl. 760. Canada. — Nugent v. Qunn, 160 W. N. 145, affirmed, 17 O. W. N. 63. Negligence in sounding horn. — Neg- ligence may be charged against the driver of a motor vehicle who unnec- essarily sounds his horn when he is in such proximity to a horse that it be- comes frightened. Conrad v. Shuford (N. C), 94 S. E. 424. 26. Lee v. Donnelly (Vt.), 113 Atl. 542. 27. Anderson v. Voeltz (Mo. App.), 206 S. W. 584; Thompson v. Fischer, 188 N. Y. App. Div. 878, 177 N. Y. Suppl. 491. 28. Toronto General Trusts Corp. v. Dunn, 15 West. L. Rep. (Canada) 314, 20 Man. L. R. 412. And see section 352. Negligence in Operation of Motor Vehicles. 38'J excessive speed without warning to other travelers, is clearly a negligent act. In fact, the excessive speed alone is sufficient to carry the case to the jury on the issue of the driver's negli- gence." And, moreover, the failure to give the proper warn- ing may of itself, under some circumstances, constitute negli- gent conduct.^*' The automobilist cannot proceed along a public highway by giving a warning of his approach, but not slacking his speed or taking other step? to avoid collisions with other travelers.^^ The requirement of due warning is intended for the pro- tection of other travelers who might pass in front of the machine in the absence of some signal or knowledge of the approach of the vehicle. When a pedestrian suddenly darts in front of an automobile from a place where pedestrians would not naturally be expected and is so near the machine that the driver is unable with due diligence to avoid a colli- sion, the injury is deemed the result of an unavoidable acci- dent,32 and liability is not imposed merely because the driver failed to blow his horn or give notice of his approach.'^ But at street crossings, the driver is bound to anticipate that pedestrians may be attempting to cross the street, and he must be prepared at such places to give reasonable warning of danger.^* After passing over a crossing and while pro- ceeding along a street, if there are no vehicles in the street or pedestrians who are apparently coming in a place of danger, 29. Section 325. Manning, 92 L. T. R. (Ene.^ 855. 30. "The uncontradicted fact in the 32. Sections 284, 419. case is that the driver of the automo 33. Bishard v. Engelbock, 180 Iowa, bile gave no audible signal or warning 1132, 164 N. W. 203; Levesque v. Du- of his approach to the obscured part raont, 116 Me. 25, 99 Atl. 719; Winter of the crosswalk. From that fact alone v. Van Blarcom, 258 Mo. 418, 167 S. a jury might properly have found that W. 498; Chiappone v. Grecnebaiim, 189 the driver's failure to sound a warn- N. Y. App. Div. 579. 178 N. Y. Snppl. ing of the approach of his automobile 854; Feyrer v. Durbrow (Wi!<.\ 178 X. to the crossing was negligent conduct. " W. 306. Pool V. Brown, 89 N. J. Law, 314, 98 34. Coppock v. Schlatter, 193 HI. Atl. 262. -A-Pp. 255; Johnaon v. Quinn, 130 Minn. 31. Kessler v. Washburn, 157 J\\. 134, 153 N. W. 267. And see section App. 532; Thies v. Thomas, 77 N. Y. 279. Suppl. 276. See also, Troughton v. 390 The Law ui' Altd-Mouilks. the driver of an automobile is under no duty to sound his horn.^^ In proving a negative fact, such as the absence of a proper warning, negative evidence to the effect that witnesses did not hear a warning is proper and may constitute sufficient evidence to present a question for the jury.^'' The weight of the negative evidence may be a question for the jury.^' Sec. 330. Warning of approach — statutes or ordinances. Statutes in many jurisdictions prescribe different circum- stances under which the drivers of motor vehicles shall give a warning of their approach.^^ And municipal corporations pursuant to their power of regulating the use of highways may pass ordinances requiring the blowing of horns.^^ As a general rule, the violation of such regulations is negligence per se, and renders the driver liable for all injuries proxi- mately resulting therefrom to persons exercising proper care for their own safety i^*^ but under particular statutes or under 35. Elmendorf v. Clark, 143 La. 971, 79 So. 557; Barton v. Van Gesen, 91 Wash. 94, 157 Pac. 215. 36. Noonan v. Maus, 197 111. App. 103; Bohringer v. Campbell, 154 N. Y. App. Div. 879, 137 N. Y. Suppl. 241; Kuehne v. Brown, 257 Pa. 37, 101 Atl. 77; Flanigan v. McLean (Pa.), 110 Atl. 370. 37. Collett V. Standard Oil Co. (Ky.), 276 S. W. 356; Kuehne v. Brown, 257 Pa. 37, 101 Atl. 77. 38. Wine v. Jones, 183 Iowa, 1166, 162 N. W. 196, 168 N. W. 318; Collett V. Standard Oil Co., 186 Ky. 142, 216 S. W. 356; Creedou v. Galvin, 226 Mass. 140, 115 N. E. 307; Levyn v. Koppin, 183 Mich. 232, 149 N. W. 993; Darish v. Scott (Mich.), 180 N. W. 435; Sullivan v. Chauvenet (Mo.), 222 S. W. 759; Raymen v. Galvin (Mo.), 229 S. W. 747; Dignum v. Weaver (Mo. App.), 204 S. W. 566; Moffatt v. Link (Mo. App.), 229 S. W\ 836; Aiken V. Metealf. 92 Vt. 57, 102 Atl. 330. Duty to sound horn (onsidered in view of Out. Stat. 6 Edw. VII, ch. 46, amended by 8 Edw. VII, ch. 53. Mar shall V. Gowaris, 20 Ont. W. R. 37, 39, et seq., 3 Out. W. N. 69. Intersection of highways. When a statute requires that a warning be given at the "intersection of high- ways," a question of construction may arise as to what constitutes such an in- tersection. See section 27. 39. Rolfs v. MuUins, 180 Iowa, 472, 163 N. W. 232. 40.' Fisher v. Ellston, 174 Iowa, 864, 156 N. W. 422; Collett v. Standard Oil Co. (Ky.), 216 S. W. 356; Benson v. Larson, 133 Minn. 346, 158 N. W. 426; Staten v. Monroe (Tex. Civ. App.), 150 S. W. 222; Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892; Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890 ; Moy Quon v. M. Furuya Co., 81 Wash. 526, 143 Pac. 99; Coe v. May- berry, 11 Sask. (Canada) 425. And see section 397. Xi:gu(;i:nce in Operation of Motor Vehicles. 391 the circumstances of a special case, the failur<' to giv«i the warning may not constitute negligence as a matter of law.*' A statute relative to the giving of warning .should be con- strued in accordance with its terms and not given an extended construction beyond its plain meaning.^- But, where a statute requires motor vehicles to be equipped with horns or other signals, it is thought that a duty is thereby imposed on auto- mobilists to use such warning devices when reasonably necessary.*^ A statute which requires the sounding of a horn on ''approaching" a horse-drawn conveyance, may apply when the automobile is approaching either from the front or rear of the carriage.^* In the case of two vehicles colliding at a street intersection, if the law required that both should give warning of their approach and neither driver sounded his horn, both may be held to be equally negligent so that there can be no recovery l)v either.*^ 41. Texas Motor Co. v. Buffington, 134 Ark. 320, 203 S. \V. 1013; Griffen V. Wood, 93 Conn. 99, 105 Atl. 354. 42. Shaw V. Covington, 171 Til. .\pp. 232. 43. Forgy v. Rutledge, 167 Ky. 182, 180 S. W. 90, wherein the court said: "We see no force in appellants' fur- ther complaint of instruction No. 3, advising the jury that it was appel- lants' duty to give appellee warning of the approach of the automobile by sig- nal with a horn, bell or other device. In support of this contention it is argued that the act of 1910 contains no provision requiring the giving of such signals. It is true that the act con- tains no express requirement that such .signals shall be given, but it is pro- vided in § 8 thereof that: 'Every motor vehicle, while in use on a public highway, shall be provided with good and sufficient brakes and also with a suitable bell, horn or other signal de- vice. . . •' We can imagine no use to which a bell, horn, or other signal device aftachod to .in automobile could be put, except to givo suitable signals of the approach of the machine where such signals would be necessary for the safety of persons traveling upon the public highway, and manifestly the necessity for their use on the streets of a city or town i.s greater than in the country. The necessity for their use is implied from the provision requir- ing motor vehicles to be supplieil with them. This proposition is too plain for argument." Sec also, Vannett v. Cole (N. Dak.). 170 N. W. 663. 44. (rifford v. .Jennings, 100 Mass. 54, 7C> N. E. 233, wherein it was snid: "The jury might find that a horn should be sounded on overtaking a horse not only to warn the driver of the horse to keep to his side of the road, but also to give timely warning of the approach of this machine which, in the kind of noise nuule by it, as well a.* in other respects, is novel anil therefore mar be dangerous. ' ' 45. Corning v. Majniard. 170 Iowa, 1065, 162 N. W. 564; Larsh v. Strasser. 183 Iowa. 1360, 168 X. W. 142: New- ton v. McSweeney. 225 Mass. 402, 114 X. E. 667. 392 The Laav of Automobiles. Actual kllo^vleclge of the approach of an automobile may excuse the failure of the driver of the machine to give a statu- tory warning, for in such a case the alleged violation may not be deemed a proximate cause of the injury.''*' But this ques- tion depends to some extent upon the distance of the machine when seen; if close, no signal need, perhaps, be given as to the particular person; but, if a considerable distance away, a signal should be given when the car has approached closer.*^ And if the driver intends to divert from the usual course of travel, a warning should be given, although there may be actual knowledge of the approach of the car.''^ One approach- ing an intersecting street is not necessarily negligent in failing to give a signal, where he stops his machine before reaching the intersection, and especially is this true Avhere the driver does not have time both to stop and to give the signal and it appears wiser to him to stop.''^ But one is not relieved from giving a warning because he believes that he can proceed without injury to another traveler.^** The fact that a statute prescribes certain cases when a warning shall be sounded, does not necessarily excuse a failure in other cases; in other cases the common law duty to exercise reasonable care under the circumstances may require a warning." 48. Zechiel v. Los Angeles Gas & such wamiug that the failure to blow Elec. Corp. (Cal.), 192 Pac. 720; i the horn may be deemed not a proxi- Schultz V. Starr, 180 Iowa, 1319, 164 mate cause of the accident. Brianzi v. N. W. 163; Zechiel v. Los Angeles Gas Crane Co., 196 App. Div. 58. & Elec. Corp. (Cal.), 192 Pac. 720; 47. Walmer-Roberts v. Hennessy Bruce's Adm'r v. Callahan, 185 Ky. (Iowa), 181 N. W. 798; Dignum v. 1, 213 S. W. 557; Priebe v. Crandall Weaver (Mo. App.), 204 S. W. 566. {Mo. App.). 187 S. W. 605; Herzig v. 48. Woodhead v. Wilkinson (Cal.), Sandberg (Mont.), 172 Pac. 132; Van 185 Pac. 851, 10 A. L. R. 291. Dyke v. Johnson, 82 Wash. 377, 144 49. Bew v. John Daley, Inc., 260 Pa. Pac. 540. 418, 103 Atl. 832. Guest. — Actual knowledge of the 50. Wine v. Jones, 183 Iowa 1166, driver does not necessarily excuse the 162 N. W. 196, 168 N. W. 318. failure to sound the horn, when the ac- 51. Moore v. Hart, 171 Ky. 725, 188 tion is brought by a guest, not by the S. W. 861; Vannett v. Cole (N. Dak.), driver. Carlisle v. Hargreaves (Wash.), 170 N. W. 663; Piper v. Adams Ex- 192 Pac. 894. press Co. (Pa.), 113 Atl. 562. Shouting by by.stauder.s may give NlOGLKiEXCE IN OPERATION OF MoTOR VEHICLES. 393 Sec. 331. Warning of approach — sufficiency of warning. The sufficiency of the warning in a particular case may be a question within the province of the jury. Thus, it has been held that whether a chime of small bells attached to an auto- mobile is sufficient as a warning to pedestrians is a question for the jury.^- Though the opening of a ^'cut out" may be prohibited by municipal ordinance, it may be sufficient as a warning signal, and the fact that the ordinance was violated is not necessarily conclusive on the issue of negligence.^ When traveling at night, the lights on the automobile will not be considered a sufficient warning under some statutes, but the driver of the machine nmst also sound his horn as a signal to other travelers.^^ One approaching a busy street corner, who gives a signal when passing a vehicle a hundred feet or so from the corner, but gives no subsequent warning, may be said to be negligent.^^ Under a regulation requiring the giving of warning when approaching and when traversing a crossing, an auto driver is not required to sound his signal when actually upon the crossing, but it is sufficient if the warn- ing is given when about to enter the crossing.^^ Sec. 332. Lookout — in general. It is the duty of the driver of a motor vehicle to koep a reasonably careful lookout for other travelers so that they may be able to avoid a collision.^' Whether the driver has 52. Coppock V. Schlatter, 193 111. Colo. 134, 96 Pac. 822. App. 255. Illinois. — Graham v. Hagmann, 270 53. Linneball v. Levy Dairy Co.. 173 111. 252, 110 N. E. 337. affirming 189 N. Y. App. T)iv. 8f)l, 160 N. Y. Suppl. 111. App. 631 : Kessler v. Washburn. 114. 157 Til. App. 532: Coppock v. Schlat- 54. Johnston v. Cornelius, 200 Mich. ter. 193 111. App. 255; Koenig v. Scm- 209. lf.f> X. AV. 983. L. R. A. 1918T) ran. 197 111. App. 624: Arkin v. Page. 880. 212 III. App. 2<'2. 55. Mitcholl V. Brown (Mo. App.). Indiana. — Martin v. Lilley, 188 Ind. 190 S. W. 3.14. 139, 121 N. E. 443. 56. Rolfs V. Mullins, 180 Iowa. 472. Iowa. — Livingstone v. Dole, 167 Iowa, 163 N. W. 232. 639, 167 N. W. 639. 57. United Stairs. — Denison v. Mc Kentucky. — Weidner v. Otter. 171 Morton. 228 Fed. 401, 142 C. C. A. 631. Ky. 167, 188 S. W. 335. Colorado. — HannriTi r. St. Clair. 44 ^ 394 The Law of Automobiles. fulfilled his duty in regard to watching for pedestrians and other persons, is generally a question for the jury/'^ Par- ticularly at street crossings and other places where many pedestrians and other travelers are to be anticipated, con- siderable care in this respect should be exercised.^^ A charge of negligence may be based on the failure of the drivei- of a motor vehicle to see another traveler as soon as he should.*'^ There is also a duty of looking for other conveyances so that injury will not result to himself, as, for example, when he is about to drive across a railroad^^ or street railway track.'^^ So, Louisiana. — Kelly v. Schmidt, 142 La. 91, 76 So. 250. Massachusetts. — Rogers v. Phillips, 217 Mass. 52, 104 X. E. 466; Biic v. Athol, etc., By. Co., 198 Mass. 257, 84 N. E. 310; Booth v. Meagher, 224 Mass. 472, 113 N. E. 367. Minnesota. — Noltmeir v. Rosenber- ger, 131 Minn. 369, 155 N. W. 618; Kennedy v. Webster, 137 Minn. 335, 163 N. W. 519. Mississippi. — Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Flynt v. Fondern (Mi.ss.), 84 So. 188. Missouri. — McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972; Wallower V. Webb City, 171 Mo. .\pp. 214, 156 S. W. 48; Rowe v. Hammond, 172 Mo. 20.!. 157 S. W. 880; Kisenman v. Griffith. 181 Mo. .\pp. 183, 167 S. W. 1142; Meenach v. Crawford. 187 S. W. 879. New Hampshire. — Hamel v. Pea body, 78 N. H. 585, 97 Atl. 220. New Jersey. — Pool v. Bvowii. S9 N. J. Law, 314, 98 Atl. 262. New York. — Bradley \. .Taeckel, 65 Misc. 509, 119 N. Y. Snppl. 1071; Thies V. Thomas, 77 N. Y. Suppl. 276. Orf^on.— White v. East Side Mill & Lumber Co., 84 Oreg. 224, 161 P:u\ 969, 164 Pac. 736. Pennsylvania. — Virgilio v. Walker, 254 Pa. St. 241, 98 Atl. 815; Kuehiir V. Brown, 257 Pa. 37, 101 Atl. 77. Tennessee. — Coca Cola Bottling Works V. Brown, 139 Tenii. 640, 202 S. W. 926. F<«/t.— Barker v. Sava.s, 52 Utah, 262, 172 Pac. ()T2; Richards v. Palace Laundry Co. (Utah), 186 Pac. 439. Washington. — Hillobrant v. Manz, 7: Wash. 250, 128 Pac. 892; Adair v. Mc- Neil. 95 Wash. 160, 163 Pac. 393. And see sections 438, 500, 714. A sharp and diligent lookout on the part of the driver of a machine is re- quired. Bongner v. Zeigenheim, 165 Mo. App. 328, 147 S. W. 182. Duties of driver. "Tlie driver of the automobile was under a legal duty to use reasonable care to avoid colliding with other vehicles or persons in the public highway. His duty was to be on the alert to nliserve persons who were in the street or about to cross the street and to use reasonable care to avoid colliding with them. He was un- der an obligation to take notice of the conditions existing in the pu])lic street and to propel his car in a manner suit- able to those conditions. ' ' Pool v. Brown, 89 N. J. Law, 314, 98 Atl. 262. 58. Vannett v. Cole (N. Dak.), 170 N. W. 663; Boeddcher v. Frank. 48 Utah, 363, 159 Pac. 634. 59. Ulmer v. Pistole, 115 Mi.s.s. 485, 76 So. 522; Core v. W'ilhelm, 124 Va. 150, 98 S. H 27. 60. Booth v. Meagher, 224 Mass. 472, 113 N. E. 367. 61. Section 557, tt seq. 62. Section 592, et seq. Negligence in Operation of Motor Vehicles. 395 too, a lookout must be kept for defects in the highway.'^"* If the circumstances are such, by reason of weather conditions, lights, or obstructions, that an automobilist is unable to see ahead of him, he should stop his machine.^* Circumstances may exist which will require the driver to look around the end of the wind shield."^ But, where there are no facilities for stopping for the night, a driver is not negligent as a matter of law because he proceeds through a fog.^^ It has been held that the fact that one is entitled under the law of the road to the right of way over vehicles approaching from a certain direction does not necessarily absolve him from the duty of keeping a lookout for the avoidance of such vehicles, though the fact is to be considered \vith the other circumstances on the question of his negligence." But, when one is traveling along a broad street, he is not required to give much attention to vehicles approaching on the other side.^ Sec. 333. Lookout — toward the rear. The general duty of the driver is to look in front of his machine, and he is not under as strict an obligation to look 63. Keiidall v. City of Des Moinps, doing so he observes no one coming on 183 Iowa, 866, 167 N. W. 684; Roper v. his side of the street, but sees one or Greenspon (Mo. App.). 192 S. W. 149. more coming towards him on the op- 64. Section 327. posite side of the street, he has the 65. Woodhead v. Wilkinson (Cal.). right to assume that such person or 185 Pac. 851. persons will continue onward on the op- 66. Johnson v. State of New York. posite side of the street, and not en- 104 Misc. (N. Y.) 395. croach upon his side. Until the con- 67. Erwin v. Traud. 90 N. J. L. 280. trary is made to appoar. it may also 100 Atl. 184. be presumed that the driver of any 68. Richards v. Palace Laundry Co. vehicle will perform his duty in main- (Utah), 186 Pac. 439. wherein if was taining a proper lookout ahead, and said: "While the law imposes the that in doing so, if there is no one on duty on every person who operates a his or the right-hand side of the street, vehicle on the streets, and especially on bw;i, 80. Koenig v. Semrau, 197 111. App. 406. 147 X. W. 926; Kennedy v. Web- 624; Birc v. Athol, etc., Ry. Co., 108 ster. 137 Minn. 335, 163 N. W. 519. Mass. 257, 84 N. E. 310; Roper v. 84. Heath v. Cook (R. I.). 68 All. Greenspon (Mo. App.), 192 S. W. 149; 427. Boeddcher v. Frank, 48 Utah. 363, 159 398 The Law of Automobiles. ing a motor ear in the rear of another vehicle is in the better position to avoid danger and where the one in front is exer- cising reasonable care, a collision would seem to at least, pri77ia facie, indicate negligence on the part of the former. Sec. 337. Noise. The question whether a charge of negligence may be based on the noise made by a motor vehicle, generally arises in cases where horses have been frightened and an injury is thereby occasioned; and the question is therefore discussed in con- nection with the chapter on "Frightening Horses." The right to operate an automobile along the public highways, necessarily carries the right to make the usual noises incident thereto,^^ but it is apparent that this right must be harmonized with the rights of those driving horses. Thus, the driver of the machine must exercise reasonable care to avoid frighten- ing horses, even to the extent of stopping the machine if neces- sary; and the driver of animals must also exercise due pre- caution to avoid injury from the motor vehicle.^^ But the operator of a motorcycle is under no obligation as to a team working in a field adjoining the highway, except to refrain from wilful or wanton conduct which would cause fright.*^ It is very seldom that a foot traveler can be said to have been 85. Gipe V. Lynch, 155 Iowa, 627, towards which such vehicle is proceed- 136 N. W. 714; Browne v. Thome, 61 ing, and a different signal visible from Wash. 18, 111 Pac. 1047. See also Day the rear, could only have been intended V. Kelly, 50 Mont. 306, 146 Pac. 930. for the protection of persons traveling 86. Section 518. on the highway. The duties imposed 87. Walker v. Faelber, 102 Kans. by law upon the driver of a motorcycle 646, 171 Pac. 605, wherein it was said: require him to keep his eyes upon the "We think it is obvious that the trial road and to look ahead for the pur- court's construction of the statute is pose of protecting other persons using the correct one. The legislative pur- the public highway from probable in- pose was to protect a distinct class of jury resulting from fast driving or persons ; that is, users of public high- other negligence. Since the statute im- ways. The safety of a person in a field posed upon defendant no duty to the adjoining a public highway was not plaintiff, the evidence failed to show within the contemplation of the legis- negligence. It is only where the de- lature. The requirement of a bell o- fendant wrongfully fails to perform horn and the use of signals and of some duty owed to the plaintiff that a lamps in front and in the rear, and the cause of action based upon negligence giving of signals from the direction can exist." Negligence in OrEiiATioN ue Motuu \'eiiicle.s. o\)\) injured by the noise of an automobile. In fact, the duty of the driver is to sound a warning so that pedestrians may escape in jury. ^^ In one case to recover for the death of the plaintiff's intestate, claimed to have been caused by the negli- gence of defendant's chauffeur, it appeared that the deceased, a man fifty-nine years of age, started to cross the street at a point of intersection with another street, and after reaching a space between surface railway tracks, upon hearing the horn from defendant's automobile, which was then between twenty and forty feet from him, threw up his hands, took one or two steps back in front of the automobile and was instantly hit. He had looked in the direction in which the automobile was coming just before he started, and looked again in that direction while stepping back. The automobile was running at a speed of between eleven and twelve miles an hour, with lamps lighted, and there were no vehicles ob- structing the street. It was held that a verdict that the dece- dent was free from contributory negligence, and that the acci- dent was caused solely by the negligence of the defendant's chauffeur, was against the weight of the evidence.^^ 88. Sections 329-331. and not upon a sidewalk, and upon ap- 89. Wall V. Merkert, 166 N. Y. App. proaching: an intensecting highway or a Div. 608, 152 N. Y. Supp. 293, wherein curve or a corner in a highway where it was said: "The learned counsel for the operator's view is obstructed, every the respondent in his brief states, ' We person operating a motor vehicle shall have been unable to find any cases in slow down and give a timely signal with this State iiolding that the blowing of his bell, horn or other device for sig- a horn under such circumstances is a naling. ' It has been held in innumer- negligent act.' It is provided in chap- able cases that a failure to observe an ter 374 of the Laws of 1910, entitled ordinance or a statute is evidence of 'An Act to anifnd the Highway Law. negligonoe. This is the first case that by repealing article eleven thereof and has been brought to our attention where in-serting a new article eleven, in rela- ol)edience to an ordinance or statute is tion to motor vehicles,' in subdivision 1 made the ground of a recovery for neg- of section 286 of such Highway Law, ligence. I think the verdict that the that every motor vehicle shall be pro- plaintiff's decedent was free from con- vided with 'a suitable and adequate tributory negligence and that the acci- bell, horn or other device for signaling.' rlent was caused solely by the negli- and subdivision 2 provides: '. . . gence of the defendant's servant is Upon approaching a pedestrian who is flatly against the evidence." upon the traveled part of any highway 400 The Ijaw of Automobiles. Sec. 338. Skidding. In an action to recover for injuries caused by an automobile which skidded and struck the plaintiff while standing upon the sidewalk, it was held that there must be a finding justified by the evidence, either that the chauffeur was negligent in the operation of the machine, that he did some act which a prudent person would not have done, or omitted some act which a prudent person would have done in the operation of the vehicle, or that in some other respects the defendant or his agents were negligent.^'^ The mere fact of the skidding of a car is not of itself such evidence of negligence as to render the owner liable for an injury in consequence thereof,^^ and whether the driver was negligent in his management of the 90. Philpot V. Fifth Ave. Ck)ach Co., 142 App. Div. (N. Y.) 811, 128 N. Y. Suppj. 35. Skidding not evidence that vehicle a nuisance. — The skidding of a motor omnibus upon a greasy road, where there is no negligence on the part of the driver, and the skidding is due to the precautions taken by the driver to bring the vehicle to a sudden stop in order to avoid an accident, is held in an English case to be no evidence that the particular vehicle is a nuisance for the placing of which on the highway the owners are liable if damage ensues. Parker v. London General Omnibus Company Limited (K. B. Div.), 100 Law T. R. (N. S.) 409. So in another case an accident to a passenger on a motor car omnibus resulting from the tendency of such vehicles to skid on slippery roads is held in an English case not to be evidence of negligence or of nuisance. And the knowledge or want of knowledge of the passenger of such tendency is held not to affect the event of the action. Wing v. London General Omnibus Company Limited (C. A.), 101 Law T. R. (X. S.} 411, re- versing 100 Law T. R. (N. S.) 301. 91. Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633; Loftus v. Pelle- tier, 223 Mass. 63, 111 K E. 712; Lin- den V. Miller (Wis.), 177 N. W. 909. See also, Kelleher v. City of Newbury- port, 227 Mass. 462, 116 N. E. 807; Tooker v. Fowler & Sellars Co., 147 N. Y. App. Div. 164, 132 N. Y. Suppl. 213; Parker v. London General Omni- bus Co., 101 L. T. (Eng.) 623; Wing v. London General Omnibus Co., (1909), 2 K. B. (Eng.) 652. See also, Henne- kes V. Beetz (Mo. App.), 217 S. W. 533. "Skidding may occur without fault, and when it does occur it may likewise continue without fault for a considerable space and time. It means partial or complete loss of control of the car under circumstances not neces- sarily implying negligence. Hence plaintiff's claim that the doctrine of res ipsa loquitur applies to the present situation is not well founded. In order to make the doctrine of res ipsa loqui- ttir apply, it must be held that skid- ding itself implies negligence. This it does not do. It is a well-known physi- cal fact that cars may skid on greasy or slippery roads without fault either on account of the manner of handling the car or on account of its being there." Linden v. Miller (Wis.), 177 X. W. 909. Negligence in Operation of Motor Vehicles. 401 machine is ordinarily a question for the jury.^^ g^^ ^ chauffeur cannot be held negligent in applying the brakes of an auto- mobile while going at an excessive rate of speed in order to reduce the speed, even though skidding occurred from the application of the brakes, owing to the slippery condition of the pavement, if there be nothing 1<» show that he did not do all that he could have done to avoid the accident.^^ Thus, where a person operating an automobile at a street crossing in a proper manner and at a slow rate of speed, applied the brakes suddenly to avoid striking a pedestrian who ran in front of the car and the act caused the car to skid slightly and to come in contact mth another car standing at the curb, injuring a portion of the top of such car, it was held that the injury was the result of an accident for which the person operating the automobile could not be held liable to respond in damages.^* In another case it was held that the mere fact that a motor omnibus damaged a street lamp because it skidded is sufficient to allow the case to go to the jury on the question of the driver's negligence.^^ Where the skidding is caused by some object striking the automobile and the driver is exercising due care at the time, a recovery, for any injury sustained by the car, may be had, on the ground that the proximate cause of such injury was the object which came in contact with the machine.^ The skidding of an automobile may, however, clearly be the result of the driver's negligence, as where the pavement is slippery and he endeavors to make a quick turn, not called for by any sudden emergency confront- ing him. Where a traveler, in the exercise of reasonable care, is injured by such conduct on the part of the driver, he may ordinarily recover.^^ Indeed, there may be cases where the 92. Williams v. Holbrook, 216 Mass. Motorbus Co., T. L. Rep. vol. XXV, No. 239, 103 N. E. 633; Schepp v. Gerety. 2, p. 13, Oct. 27, 1908. 263 Pa. St. 538, 107 Atl. 317. 96. Williams v. Breniian, 213 Mass. 93. Philpot V. Fifth Ave. Coach Co., 28, 99 N. E. 516, so holding where the 142 App. Div. (N. Y.) 811, 128 N. Y. akidding was due to the automobile Suppl. 35 ; Anderson v. Schorn, 189 N. being struck by the body of a dog. y. App. Div. 495, 178 N. Y. Suppl. 603. 97. Loftus v. Pelletier, 223 Mass. 63, 94. Moir v. Hart, 189 111. App. 566. Ill N. E. 712; Van Winckler v. Morris, 96. Walton & Ce. v. The Vanguard 46 Pa. Super. Ct. 142. 26 402 The Law of Automobiles. skidding calls into operation the doctrine of res ipsa loqiiitor.^^ And a finding of negligence may be based on the failure to equip the machine with chains,^^ though the absence of chains does not show negligence as a matter of law.^ The speed at which the skidding machine was moving is a material element in determining whether the operator was negligent." Sec. 339. Condition of vehicle. It is the duty of one traveling in a vehicle to have his con- veyance in reasonably good condition, so that he may avoid, so far as possible, the danger of injury to other travelers.^ The mere fact that some of the gearing gives way, or that some part of the vehicle breaks down, and injury results, is not negligence per se.* ''If damages are inflicted by reason of the breaking of the carriage or tackle of the traveler on the highway the traveler or owner of the tackle is liable only on the principle of want of ordinary care."^ The fact that gearing or tackle acted wrongly, on a previous occasion is evidence of negligence on the part of the owner, and may be sufficient to render him liable for damages caused thereby.® So, too, the fact that a chain on one of the wheels broke and wound around the axle and blocked the car, does not show negligence.' Wliere the equipment of a motor vehicle is adjusted so that it makes a loud noise and a horse is thereby 98. Mackenzie v. Oakley (N. J.), 108 rect evidence as to what caused the Atl. 771. blow-out. Barnett v. Levy, 213 El. 99. Gros.s V. Burnside (Cal.), 199 App. 129. Pac. 780. Defective crank causing injury to 1. Livingston v. Chambers (Iowa), one asked to crank the machine may 183 N. W. 429. create a question for the jury. Parker 2. Gilbert v. Southern Bell Telep. & v. Drake (Mo. App.), 220 S. W. 1000. Teleg. Co., 200 Ala. 3, 75 So. 315. 4. Doyle v. Wragg, 1 F. & F. 7 ; The 3. Johnson v. Small, 5 B. Mon. European, 10 L. R. Prob. Div. 99. (Ky.) 25; Smith v. Smith, 2 Pick 5. 1 Thompson Negligence, p. 81. (Mass.) 621; Murdock v. Warwick, 4 See also Elliott, Roads and Streets. Gray (Mass.) 178; Welch v. Lawrence, See also Ivins v. Jacob, 245 Fed. 892; 2 Chitty (Eng.) 262. Hutchins v. Maunder (1920, K. B.), 37 Blowout.— The negligence of the T. L. R. (Eng.) 72. driver of an automobile may be a ques- 6. The European, 10 L. R. Prob. tion for the jury, where as the result Div. 99. of the blowing-out of a tire the car 7. Albertson v. Ansbacher, 102 Misc. turns over, although there is no di- (N. Y.) 527, 169 N. Y. Suppl. 188. Negligence in OrKUAXioN of Motor X'ehicles 403 frightened, the owner may be liable for the injuries sustained by the driver of the horse.^ An autoniobilist is under the duty of equipping his machine with proper brakes. This duty, not only exists under common law principles, but is generally affirmed by statutory enactment's.^ Evidence of defective brakes on a machine is admissible as bearing on the care to be exercised by the driver, for, if the brakes are defective, he should take greater precautions.^" And it is the duty of the driver to use the l)rakes when necessary." If the brakes do not work, the driver should use such other means as are at hand for the avoidance of a threatened injury.^^ Negligence may also be found in the failure to equip a machine with u proper horn.^'' An expert witness may be permitted to testify 8. LaBrash v. Wall, 134 Minn. 130. 158 N. W. 723, wherein it was said: "The plaintiff was going south on a street in Minneapolis with a wagon load of household furniture. The auto van of the defendant came from the east on an intersecting street and turned towards the plaintiff from the south and at first was on the westerly side of the street on which the plain- tiff was driving. The auto van had curtains which were flapping and mak ing some noise. The plaintiff's team became frightened and ran away and the plaintiff's furniture was damaged. The evidence was sufficient to ju.stify a finding of negligence." 9. Bennett v. Snyder (Ark.). 227 S. W. 402; Garrett v. Peoples R. Co., 6 Penn. (Del.) 29, 64 Atl. 254; Fox v. Barekman, 178 Ind. 572, 99 N. E. 989 ; Corning v. Maynard, 179 Iowa, 1065, 162 N. W. 564; Owens v. Iowa County. 186 Iowa 408, 169 N. W. 388; Bigelow V. Town of St. Johnsbury, 92 Vt. 423. 105 Atl. 34; Allen v. Schultz, 107 Wash. 393, 181 Pac. 916, 6 A. L. R. n76n. See also Bruner v. Little. 97 Wash. 319, 166 Pac. 1166. "One who oper- ates on the streets of a city such .» dangerous instrumentality as an auto- mobile is bound to take notice that he may be called upon to make emergency stops, and it is negligence on his part not to keep the automoVjile in such con- dition that such stops arc possible." Allen V. Schultz, 107 Wash. 393, 181 Pac. 916. Engine not a brake. — Most of the State automobile laws require that each motor vehicle must be equipped with <;ood and efficient brakes. In one or two of the laws it is provided that there shall be more than one brake. In Eng- land the question has arisen if the en- uino. wiiich is frequently used aa a brake, complies with the law, provided only one real brake is on the automo- l)ile. It has been held that the eng^ine, under such circumstances, does not con- stitute a "brake" within the mean- ing of the requirements. Wilmott v, Southwell, 25 L. T. 22. 10. Siegeler v. Neuweiler, 91 N. J. L. :273, 102 Atl. 349. 11. Gro.ss V. Burnside (Cal.), 199 P:i('. 780. 12. Russell V. Electric Garage Co., 90 Neb. 719, 134 N. W. 253. 13. Dussault V. Chartrand, Que. S. C. (Canada) 488; Provincial Motor Co. v. Dunning (1909), 2 K. B. (Eng.) 599. And .see sections 329-331. 404 The Law of Automobiles. as to whether an automobile was defective." And evidence of the condition of a machine after an accident may in some cases be received as bearing on its condition at the time of the accident.^^ Negligence may be inferred from leaving mow- ing machine section knives so as to extend over the side of the vehicle.^^ The liability of the manufacturer of a machine for injuries sustained by a purchaser through defects in its manu- facture, is treated in another chapter.^'' Sec. 340. Leaving car in street unattended — in general. Under many circumstances the owners of vehicles have the right to let them stand on the highway for a reasonable time and in such a place as will not unduly interfere with travel on the road. When, therefore, a motor car is lawfully stand- ing on the side of the street and there is ample room to pass without colliding with it, it is negligent to drive into it.^^ Thus, Avhere a motor vehicle, liable to frighten horses, broke down on the public highway, and was left at the place of the breakdown, it was held that the o^^mer of the vehicle was not liable because a horse became frightened at the vehicle, unless there was unreasonable delay in repairing and removing it.^^ But one leaving a motor vehicle unattended by the side of a highway is bound to exercise such care as a reasonably pru- dent man would under the same circumstances f^ and whether he was negligent may be a question for the jury.^^ Thus, the owner of an automobile may be guilty of negligence in leaving 14. E. M. F. Co. V. Davis, 146 Ky. showing of injury or damage peculiar 231, 142 S. W. 391. And see section to him. Hefferon v. New York Taxicab 914, Co.. 146 N. Y. App. Div. 311, 130 N. 15. Owens v. Iowa County, 186 Iowa, Y. Suppl. 710. 408, 169 N. "W. 388. 19. Davis & Son v. Thoinburg, 149 16. Judy V. Doyle (Va.), 108 S. E. 6. N. C. 233. 62 S. E. 1088. 17. Section 800. 20. American Express Co. v. Terry, 18. Odom V. Schmidt, 52 La. Ann. 126 Md. 254. 94 Atl. 1026; Berman v. 219, 28 So. 350. And see section 395 Schultz, 84 N. Y. Suppl. 292. Scp also Standing taxicab as a nuisance. — Keber v. Central Brewing Co. of New If a taxicab company unreasonably and York, 150 N. Y. Suppl. 986. unlawfully obstructs a public highway. 21. American Express Co. v. Terry, it is guilty of a public nuisance, but no 126 Md. 254, 94 Atl. 1026. See also action to abate it exists in favor of a Harris v. Burns, 133 N. Y. Suppl. 418. private suitor in the absence of some Negligence in Operation of Motor Vehicles. 405 it uiilighted and unattended in the night time.'-- So, too, where it appeared that the defendant had left a bright red auto- mobile, with l)rass trimmings, standing at the side of the road and that the plaintilfs horse took fright thereat and upset the carriage, injuring both the plaintiff, the horse and car- riage, it was lield that, the jury having found that it was not a reasonabh' user of the highway to leave the automol)ile thereon for a long time, but was an unauthorized obstruction thereof, such finding Avould not be disturbed on appeal.-' Where one driving in a wagon on a dark night, in the middle of a highway having a traveled track eighteen feet wide with a ditch on each side, turned to the right as soon as he sa\\' the lights of an approaching automobile and stopped, leaving plenty of room for it to pass without danger, and about a minute after he saw the lights his wagon was struck by the automobile, it was held that he was not necessarily guilty of contributory negligence even if his wagon, when struck, was slightly over the center line of the highway, but that the ques- tion w^as one for the jury.-^ But, where a plaintiff's auto- mobile, lawfully standing at rest on the side of a street, was struck by a truck belonging to one of the defendants, which, while being driven slowly and carefully, was struck by a street railway car and as a result of the collision the automobile was damaged, it was held that the plaintiff, in an action to recover for such damage, had the burden of showing by a fair preponderance of evidence that the accident was due to the negligence of the owner of the truck. And it was also declared that in such a case the rule of res ipsa loquifor was not applic- able, but that assuming that it was, it would not operate to shift the burden of proof upon the truck owner to show that the proximate cause of the accident was the negligence of the defendant's operating the railway, as the ow'uer of the truck was only bound to overcome any presumption of negligence on his ])art which, in the absence of explanation, miirht l>e 22. .Taquitli v. Wordoii. 73 Wash. (Canada) 9. 349, 1.^2 Pac. 33. 4S L. R. A. (N. S.") 24. Andersoii v. Spiuk;*. 142 Wis. 827. 398, 12.-> N. W. 025. 23. Afclntvio V. Coote. 10 Out. L. R. 406 The Law of ArTo.vioniLKs. inferred from the happening of the accident.-^ If a machine is negligently left in the road so that it is struck by a street car and thrown against one working at the curb, the negli- gence of the driver of the machine may be held to be the proxi- mate cause of the injuries sustained by the workman.-*^ Sec. 341. Leaving car in street unattended — at night. Where a vehicle is left standing in the street with no lights to warn other travelers of the danger, a charge of negligence may be sustained under modern statutes requiring the light ing of such vehicles.^^ But where a plaintiff's vehicle ran into the defendant's carriage standing in the dark M-ithout a light, signal or other indication of danger, it was decided by the Supreme Court of Errors of Connecticut, that the lower court properly refused to decide that the defendant's act in leaving his carriage in such a manner so as to obstruct more than half the highway was negligence as a matter of law.^ Sec. 342. Leaving car in street unattended — vehicle started by act of third person. The leaving of an automobile by the side of the highway for a reasonable time, where the operator has taken precautions to guard against an automatic start thereof, is not negli- gence.^^ If a third person thereupon unlawfully meddles mth the machine and starts it so that it causes injury to another person in the highway, the owner is not liable. ^^ Thus, the owner or driver is not liable for injuries caused by a motor 25. O'Donohue v. Duparquet, Huot & Div. 400, 185 N. Y. Suppl. 359. Moneuse Co., 67 Misc. (N. Y.) 435, 123 30. Vincent v. frandall & Oodley Co.. N. Y. Suppl. 193. 131 N. Y. App. Div. 200, 115 N. Y. 26. Keiper v. Pacific Gas & Elee. Co. Suppl. 600 ; Berman v. Schultz, 84 N. (Cal. App.), 172 Pac. 180. Y. Suppl. 292; Frashella v. Taylor, 157 27. Section 344. N. Y. Suppl. 881; Rhad v. Duquesne 28. Nesbit v. Crosby, 74 Conn. 554, Light Co., 255 Pa. St. 409, 100 Atl. 51 Atl. 550. 262; Oberg v. Berg, 90 Wash. 435, 155 29. Vincent V. Crandall & Godley Co., Pac. 391; Ruoff v. Long & Co., 1916 131 N. Y. App. Div. 200, 115 N. Y. L. R. 1 K. B. (Eng.) 148. Sec also, Suppl. 600, distinguished, Lee v. Van Lee v. Van Buren, etc., Co., 190 N. Y. Buren, etc., Co., 190 N. Y. App. Div. App. Div. 742, 180 N. Y. Suppl. 295; 742, 180 N. Y. Suppl. 295. See also, Austin v. Buffalo Electric Vehicle Co., Lazarowitz v. Levy, 194 N. Y. App. 158 N. Y. Suppl. 148. Negligence ix Operation of Motor Vkhkles. 4i)( vehicle which is left temporarily h\ the side of the highway and in the absence of the driver is started l»y the unlawful acts of children or other tres])assers.^' While it is the duty of the person having charge of the machine to use reasonable care that no injury will result from the car while it is un- attended, it is not his duty to chain it to a post or use souk- other method of fastening it so that it will he iini^ossihle for third persons to start it.^^ Sec. 343. Leaving car in street unattended — statute or ordi- nances. A statute or a municipal ordinance may affect the right ol" an automobilist to leave his machine standing by the side of the highway. Thus, a municipal ordinance may prohibit the ''parking" of cars on certain streets, or it may require them to be left only on a certain side thereof.^" The violation of regulation enacted by a State legislature or a nuinicipal body may be negligence,^* but, to enable a third person to recover for injuries on the ground that the defendant violated a regu- lation, it is essential that it appear that the injuries are the proximate result of the violation. It has been held that the violation of an ordinance forbidding the leaving of automo- biles unlocked and unattended in a city street, is not the proximate cause of an injury occasioned by the wrongful appropriation of the car by one who drove it at a reckless and unlawful speed and inflicted the injury in question-^^ Sec. 344. Lights on machine — statutory requirements. It is generally required by statute that motor vehicles shall carry lights which shall be lighted at certain hours when the machine is operated.^ IMunicipal regulations of similar ini- 81. Vincent V. Crandall & Godloy Co.. 32. Beriiiaii v. Sclniltz, 84 N. Y. 131 N. Y. App. Div. 200, 115 N. Y. Suppl. 292. Suppl. 600; Berman v. Schultz, 84 N. 33. Heok v. Cox. T7 W. Vn. 442. ^7 Y. Suppl. 292; Sorrusca v. Hobson, 155 S. K. 492. N. Y. Suppl. 364: Frashella v. Taylor. 34. Section 297. 157 N. Y". Suppl. 881; Rhad V. Buquosno 35. Squires v. Brooks. 44 \]^y. O. C. Light Co., 255 Pa. St. 409. 100 Atl. .^20. 262. 36. Stewart Taxi-Service Co. v. Roy. 408 The Law of Automobiles. port have been passed in various municipalities. The general requirements refer to illumination in front of the machine, but a light is also frequently required at the rear, either as a protection from other vehicles approaching from behind or as a means of identifying the rear number plate.^^ Statutes 127 Md. 70, 95 Atl. 1057; Harnau v. Haight, 189 Mich. 600, 155 N. W. 563 ; Martin v. Herzog, 176 N. Y. App. Div. 614, 163 N. Y. Suppl. 189; affirmed, 228 N. Y. 164, 126 N. E. 814; Seger- strom V. Lawrence, 64 Wash. 245, 116 Pac. 876. See also, Fittin v. Sumner, 176 App. Div. 617, 163 N. Y. Suppl. 443. Common law. — " Generally speak- ing, at common law, the driver of a wagon upon a highway at night is un- der no duty to carry a light to warn others of the presence of his vehicle or its load. If he stops in the highway, the circumstances may doubtless be such as to make it negligence to fail to warn other travelers of the obstruc- tion thus occasioned. But whether such failure can be said to be negli- gence must, of necessity, depend upon the circumstances." Roper v. Green- spon (Mo. App.). 192 S. W. 149. See alsc. Walden v. Stone (Mo. App.), 223 S. W. 136. If a statute requires a light to be carried on the front of the vehicle it need not lie carried on the extreme front ; if on the dashboard it is suffi- cient. State V. Reed, 162 Iowa, 572, 144 X. W. 310. Private road. — A statute requiring lights on motor vehicles is applicable to travel on public highways only, and does not apply in ease of a collision on' a private road. Stewart v. Smith, 16 Ala. App. 461, 78 So. 724. 37. Luckie v. Diamond Coal Co. (Cal. App.), 183 Pac. 178; Hollowell v. Cameron (Cal.), 199 Pac. 803; City of Hays V. Schueler, 107 Kans. 635, 193 Pac. 311, 11 A. L. P^ 1433: Ebling v. Nielson (Wash.), 3 86 Pac. 887. Certainty of statute. — A 'statute pro- viding that ' ' every motor vehicle while in use on the public highways . . shall . . . display on the rear of said vehicle a lamp so placed that it shall show a red light from the rear and a white light at the side and so ar- ranged as to illuminate the rear num- ber or marker," is not void for un- certainty in that it does not designate the person who shall be liable for a violation thereof. In construing such a statute it is said that as motor vehi- cles cannot equip themselves automati- cally, human agency is presumed. The intention of the legislature is clearly to prohibit the use upon the public high- ways during certain hours of the day of motor vehicles not lighted in the man- ner required, and by implication it designates the person who shall be li- able for a violation thereof, and such person is the one who is in control of the vehicle at the time of the commis- sion of the offense. State v. Myettc, 30 R. I. 556, 76 Atl. 664. Train of vehicles pulled by tractor. Red light should be exhibited at the rear of the rear vehicle. Western In- demnity Co. V. Wasco Land & Stock Co. (Cal. App.), 197 Pac. 390. Identification plate not kept suffi- cienly lighted so as to render easily distinguishable the letters and figures thereon, and conviction of motor cab company foi' aiding and abetting one of its drivers. See Provincial Motor Cab Company, Limited v. Dunning (1909). 2 K. B. (Eng.) 599. 101 Law T. R. (N. S.) 231. Conviction for offense of failing to Negligence in Operation of Motor Vehicles. 409 requiring motor vehicles to carry liglits are intciKled lor the benefit of the entire traveling puljlic,-** and compliance there- with is essential.^ A regulation requiring the lighting of vehicles is not generally extended beyond the clear meaning of its terms. Thus, an ordinance providing that automobiles operated at night should be equipped with lights, has been construed as not covering such vehicles when standing.*^ So, too, a statute requiring that motor vehicles, "while in use on a public highway," shall be equipped with lights has been held inapplicable to a "dead" car which is towed by another properly eciuipped mth lights.^^ But the owner of an auto- mobile nevertheless may be held guilty of negligence in lea^dng it, with no lights upon it, unattended in a city street.'*^ An automobilist may not be required to light his lamps before the time specified in such a requirement, though it may be dark before such time.'*^ So, too, lights need not be carried after daybreak where an ordinance requires the carrying of them until that time.^^ AVhether it is negligence for the ownier of have back plate illuminated may be in- dorsed on license. Brown v. Crossley (K. B. Div.), 80 L. J. B. (Eng.) 478. Driving along street car track. — When an automobile is driven along a Btreet car track with a red rear light, such light is a warning to approaching; vehicles in the rear upon which the auto driver to some extent is entitled to rely for protection against such vehicles, and he need not look to the rear for danger with the same dili- gence as he ip required to look ahead. Baldie v. Taconia Ry. & Power Co., 52 Wash. 75, 100 Pac. 162. 38. Giles v. Ternes, 93 Kan. 140, 143 Paly tion in such a statute as to vehicles Co., 200 Mass. 237, 86 N. E. 301. designed for the transportation of hay, 59. Belleveau v. S. C. Lowe Supply is in force only when such a vehicle is Co., 200 Mass. 237, 86 N. E. 301. actually used for such purpose. Hale 60. Topper v. Maple, 181 Iowa, v. Resnikoff (Conn.), Ill Atl. 907. 786. 165 N. W. 28; Hallett v. Crowell, Sleigh. — Such a statute may apply 230 Mass. 244, 122 N. E. 264; Roper only to vehicles on "wheels." Vadney V. Greenspon, 272 Mo. 288. 198 S. W. v. United Traction Co., 193 N. Y. App. 1107, L. R. A. 1918D 126; Chesrown v. Div. 329. Bevier (Ohio), 128 N. E. 94; J. Sam- 61. Martin v. Herzog, 176 N. Y. uels & Bro. v. Rhode Island Co., 40 R. App. Div. 614, 163 N. Y. Suppl. 189, I. 232, 100 Atl. 402. See also Harding affirmed, 228 N. Y. 164, 126 N. E. 811. V. Cavanaugh, 91 Misc. (N. Y.) 511, Negligence ix Operation of Motor Vehicles 413 regulation.''^ The absence of lights on a wagon may, under some circumstances, constitute contributory negligence which will bar a recovery by an occupant for injuries received from a collision with a motor vehicle.'^ But, where a motor vehicle comes up behind a carriage and runs into it, the omission of lig-lits on the carriage does not necessarily bar a remedy for injuries, for the driver of a motor vehicle is not justified in running down an unlighted vehicle.^ The violation of the law, to have the effect of barring tho remedy of the driver of a horse, must be a proximate cause of the accident ;'^ and, if the driver of an approaching motor vehicle sees the milighted wagon soon enough to avoid a collision, but fails to avoid it, the absence of the lights is not a proximate cause of tho injury.'''^ Or if the collision occurs on a street so well lighted that the unlighted carriage could easily have been seen, the violation of the regulation is not generally important^ So, too, if the automobilist sues the driver of the unlighted wagon 62. Koper v. Gieenspon, 272 Mo. 288, 198 S. W. 1107; Koper v. Green- spoii (Mo. App.), 210 S. W. 922; Columbia Taxicab Co. v. Stroh (aIo. App.), 215 S. W. 748. 63. Martin v. Herzog, 176 N. Y. App. Div. 614, 163 N. Y. Suppl. 189; affirmed, 228 N. Y. 164, 126 N. E. 814 ; Chesrown v. Bevier (Ohio), 128 N. E. *)4; Yahnkc v. Lange, 168 Wis. 512, 170 N. W. 722. Prima facie evidence of negligence.— Where, in an action for negligence, it appears that the defendant's automo- bile, properly lighted, collided with de- cedent's horse-drawn wagon which car ried no light, as required by statute, as they were passing at a turn in the road, due to the defendant's being too far toward the left side, it was error for the court to refuse to charge ' ' that the failure to have a light on the plain- tiff's vehicle is prima facie evidence of contributory negligence on tho part of the plaintiff." The absence of the light on the wagou was under the cir- cumstances a contributory cause, lor the statute intended that such a light should be a signal to aid a person operating a motor vehicle to "turn the same to the right of the center of such highway so as to pass without in- terference." Martin v. Herzog, 176 N. Y. App. Div. 614, 163 N. Y. Suppl. 189, aflBrmed, 228 N. Y. 164. 126 N. E. 814. 64. Graham v. Haguianu, 270 111. 252, 110 N. E. 337, affirming 189 111. App. 631; Decou v. Dexheiraer (N. J.), 73 Atl. 49; Ireson v. Cunningham, 90 N. J. L. 690, 101 Atl. 49; Koppeer v. Bernhardt, 91 N. J. L. 697. 103 Atl. 186. 65. Graham v. Hagniann, 270 111. 252, 110 N. E. 337. affirming 1S9 111. App. 631. 66. Graham v. Hagmauu, 270 111. 252, 110 N. E. 337, affirming 189 III. App. 631; Ireson v. Cunningham, 90 N. .J. L. 690, 101 Atl. 49; Kopper v. Bernhardt (N. J.), 103 Atl. 186. 67. Surmeian v. Simons (R. I.), 107 Atl. 229. 414 The Law of Automobiles. for his injuries, the burden is on the plaintiff to show thai the absence of lights contributed to the injury.*'^ Sec. 349. Towing disabled vehicle. When an automobile becomes disabled and it is necessary to tow it along the public highways, reasonable care should be exercised to avoid injury to pedestrians and other travelers.^** It is not negligence for one machine to tow another through the streets with a rope or cable as a connecting link, provided reasonable care is exercised by the persons haxang charge of the machines.''^ And the fact that a safer method could have been devised than was used in a particular case is not con- clusive on the question of negligence, for the criterion is whether the driver used the care that an ordinarily prudent man would have exercised.^^ If the cable connecting the two vehicles is not readily visible, it may be the duty of one of the drivers to give pedestrians a warning of the situation so that 68. Roper v. Green&pon (Mo. App.), 192 S. W. 149; Hardie v. Barrett, 257 Pa. 42, 101 Atl. 75. 69. Musgrave v. Studebaker Bros. Co. of New York, 48 Utah, 410, 160 Pac. 117. See also Jerome v. Hawlev, 147 N. Y. App. Div. 475, 131 N. Y. Suppl. 897. And see section 449. Trailer running on walk. — Where a trailer has become partially unfastened 80 that it pursues an 'irregular course and runs on the walk to the injury of an adjoining structure, the driver may be liable. Lambert v. American Box Co., 144 La. 604, 81 So. 95, 3 A. L. R. 612. 70. Steinberger v. California Elec. Garage Co., 176 Cal. 386, 168 Pac. 570; Canfield v. New York Transp. Co., 128 App. Div. (N. Y.) 450, 112 N. Y. Suppl. 854 ; Wolcott v. Renault Selling Branch, 175 N. Y. App. Div. 858, 162 N. Y. Suppl. 496, reversed 223 N. Y. 288, 119 N. E. 556. Two wagons. — A person who con- nects two vehicles by a rope in order to dra\^ them through a city street is bound to observe due care and to warn other users of the street of the ob- struction, and when a pedestrian walk? against such rope and is thrown and in jured it is for the jury to say whether the owner was negligent in failing to use due care and to warn the plaintiff of the obstruction. When such vehi- cles, connected by a rope, are drawn through a city street amid other traffic, it cannot be said as matter of law that the obstruction itself is a sufficient warning to travelers. When the plain- tiff testifies that he did not see the rope connecting the wagons, and that he was ignorant thereof, and that the ac- cident happened about dusk, the ques- tion of his contributory negligence is properly left to the jury. Young v. Herrmann, 119 N. Y. App. Div. 445, 104 N. Y. Suppl. 72, affirmed without opinion, 19*2 N. Y. 554. 71. Musgrave v. Studebaker Bros. Co. of New York, 48 Utah, 410, 160 Pac. 117. Negligence i:n^ Operation of ^NIotor Vehicles. 415 they will not attempt to pass between the cars and trip over the eahle.'^ Whether it is necessary to give a warning to others depends upon the surrounding circumstances, such as the presence or absence of sufficient light, the size and color of the connection, and other pertinent facts relative to the accident in question.'^ And, it is not necessary as a matter of law that the two drivers should adopt a code of signals for the management of the cars.'^^ AVhether sufficient precautions have been adopted for the protection of other travelers, is generally a jury question.'^^ It may be negligent to tow a truck backward down grade on a slippery street if the brakes on the truck are defective.'^'^ Statutes relating to the lighting of automobiles may not apply to the rear machine."" Decisions involving negligence in the towing of automobiles generally arise out of injuries to pedestrians tripping over the tow line,'^ but may sometimes follow an injury to a cyclist.''® Sec. 350. Sufficiency of compliance with statute. . It is a well established rule in the law of negligence that the precautions required by statute are not the only ones to be observed in order that the conduct of a person fulfills his duty of exercising reasonable care. Thus, the fact that an automobilist has complied with all the requirements of the statutes regulating his conduct, will not be conclusive on the issue of his negligence.^^ The principle is well illustrated in cases where the negligence alleged is the operation of a vehicle at an excessive speed. The circumstance that the speed in 72. Wolcott V. Renault Selling nrancli. 223 N. V. 288. 119 NT. E. 556. Branch, 223 N. Y. 288, 119 N. E. 556, reversintr 175 App. Div. 858. reversing 175 N. Y. App. Div. 858; 76. Glasgow- v. Dorn (Mo. App.). 220 Rapetti v. Peugeot Auto Import Co.. S. W. 509. 97 Misc. 610, 162 N. Y. Suppl. 133; 77. Musgrave v. Studebaker Bros. Labarge v. LaCompagnie do Tramways, Co. of Utah, 48 Utah. 410. 160 Pac. 24 Rev. Leg. (Canada) 133. 117. 73. Steinberger v. California Elec. 78. See section 449. Garage Co., 176 Cal. 386, 168 Pac. 570. 79. See Jerome v. Hawley. 147 X. V. 74. Musgrave v. Studebaker Bros. App. Div. 475, 131 X. Y. Suppl. 897. Co. of Utah, 48 Utah, 410, 160 Pac. 80. Moore v. Hart. 171 Ky. 725. ISS 117. 8. W. 861 ; Ahonen v. Hryszke, 90 Oreg. 75. Wolcott V. Renault Selling 451, 175 Pac. 616. 416 The Law of Automobiles. question was not greater than that allowed by statute is not necessarily determinative of the issue, but the question is left to be decided by the jury whether it was greater than was reasonable and proper under the circumstances.^^ And, too, the driver of an automobile may be guilty of negligence though he complies with the law of the road in all particulars.^^ The fundamental rule of action, is that the driver of a motor vehicle shall exercise reasonable care under the circumstances, considering all of the surrounding circumstances.^^ Sec. 351. Contributory negligence of injured person. One of the fundamental rules in the law of negligence is that the person complaining of an injury occasioned by the negligence of another must himself be free from negligence.^* Hence, it is clear that, if a traveler is guilty of negligence which contributes to an injury received from a motor vehicle, he cannot recover for his injuries.^^ Thus, in the case of the 81. Section 324. 82. Section 27.5. 83. Section 277. 84. Under concurrent negligence act it has been held that a plaintiff may recover in Mississippi, though guilty of contributory negligence. Pascagoula St. Ry. & Power Co. v. McEachern (Miss.), 69 So. 185. 85. United States. — New York Transp. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285. Alabama. — Birmingham Ry. L. & P. Co. V. Aetna Accident & Liability Co., 151 Ala. 136, 44 So. 44. ArTcansas. — ^Russ v. Strickland, 130 Ark. 406, 197 S. W. 709. California. — Tonsley v. Pacific Elec- tric Ry. Co., 166 Cal. 457. 137 Pac. 31. Co'nnecticut. — New Haven Taxicab Co. V. Connecticut Co., 87 Conn. 709, 89 Atl. 92. Delaware. — Travers v. Hartman, 5 Boyce, 302, 92 Atl. 855; McLane v. Sharpe, 2 Harr. 481. Illinois.— . Absence of contributory negligence on the part of a plaintiff is declarotT to be as much a part of a cause of ac- tion as tlie negligence of the defend- ant. Tompkins v. Barnes, 145 N. V. App. Div. 637, 130 N. Y. Suppl. 320. 86. Berz Co. v. Peoples Gas, Light & Coke Co., 209 III. App. 304; Bernardo V. Legaspi, 29 Phillipines Rep. 12. 87. Belk V. People, 125 111. 584, 17 N. E. 744; Kennard v. Burton, 25 Me. 39; Parker v. Adams, 12 Mete. (Mass.) 415; Weher v. Beeson, 197 Mich. 607. 164 N". W. 255; McClung v. Pennsyl- vania Taximeter Cab Co., 252 Pa. St. 478, 97 Atl. 694; Clay v. Wood, 5 Esp. (Eng.) 44; Chaplin v. Hawes. 3 Car. & P. (Eng.) 555; Wayde v. Lady Carr, 2 Dowl. & R. (Eng.) 255. 88. Persons in other Vfliicle<, sec- tions 398-411. Pedestrians, .sections 453-487. Cyclists, sections 503 514. Horseback riders, section 490. Guests, sections 688-695. 418 The Law of Automobiles. general exercise reasonable care to avoid injury to their fellow travelers.^® He may rely on this assumption until he discovers that it is contrary to the actual fact. Of course, an 89, California. — Robinson t. Clemona (Cal. App.), 190 Pac. 203. Illinois. — Trzetiatowski v. Evening American Pub. Co., 185 111. App. 451; Kilroy v. Justrite Mfg. Co., 209 111. App. 499. Jndiona.— Indianapolis St. Ky. v. Hoffman, 40 Ind. App. 508, 82 N. E. 543; Elgin Dairy Co. v. Shepard, 108 N. E. 234. Iowa. — Pilgrim v. Brown, 168 Iowa, 177, 150 N. W. 1. Missouri. — Freeman v. Green (Mo. App.), 186 S. W. 1166. New York. — Buscher v. New York Transportation Co., 106 N. Y. App. Div. 493, 94 N. Y. Suppl. 796; Clarke V. Woop, 159 N. Y. App. Div. 437, 144 N. Y. Suppl. 595; Crombie v. O'Brien, 178 App. Div. 807, 165 N. Y. Suppl. 858 ; Thies v. Thomas, 77 N. Y. Suppl. 276; Enstrom v. Neumoegen, 126 N. Y Suppl. 662. Oregon. — Pinder v. Wickstrom, 80 Oreg. 118, 156 Pac. 583. Permsylvania. — Frankel v. Morris, 252 Pa. St. 14, 97 Atl. 104; Brown v. Chambers, 65 Pa. Super. Ct,. 373. T Utah. — Richards , y. Palace Laundry Co., 186 Pac. 439. ' Washington. — Ballard v. Collins, 63 Wash, 493, 115 Pac. 1050. Wisconsin. — Zimmermann v. Med- nikoff, 165 Wis. 333, 162 N. W. 349; John, V. Pierce (Wis.), 178 N. W. 297. Canada. — Toronto General Trusts Corporation v. Dunn, 15 West. L. R. 314, 20 Man. L. R. 412. Assumption as to speed. — It has been held that when a traveler is- vio- lating the law of the road, he cannot assume that an automobilist will pro- ceed at a proper rate of speed. Brag- don v. Kellogg, 118 Me. 42, 105 Atl. 433, wherein it was said: "Such operators cannot confine their antici- pation to a legal rate of speed as a protection. They are held to antici- pate that, according 'to fhe usual ex perience of mankind, the result ought to be reasonably apprehended.' These operators must anticipate not accord- ing to the 'legal,' but the 'usual,' ex- perience of mankind in running auto- mobiles on the public highways. It is, then, a matter of common knowledge, the 'usual experience' that automobiles are more often driven without any reference to legal speed than in ob- servance of it. True, in the trial of automobile cases there are almost al- ways two rates of speed that might be marked, plaintiff's 1 and plaintiff's 2, in which the plaintiff is seldom ever going over a speed of from 8 to 12 miles, while the defendant is going at from 25 to 45 miles an hour, and some- times so fast that his speed produces a result in the nature of a blur, as he passes. Nevertheless, the truth is that automobile operators pay little atten- tion to the legal rate of speed. Hence it is 'the usual experience' of opera- tors that they are not authorized to rely on the legal presumption that an approaching car is coming at a legal rate of speed, but must exercise due care in the operation of their own car, especially in approaching corners, curves, and turns in the road, where their vision may be wholly or partially obscured. Accordingly, the claim that an operator has a right to rely on the presumption of a legal rate of speed cannot be admitted." It is a question for the jury whether a plaintiff assumed that the driver of an automobile would so act. Tooker v. Perkins, 86 Wash. 567, 150 Pac. 1138. N?:GLifiENCE IN Operation of Motor Vehicles. 419 assiimptioji along this line cannot he made, when it is apparent that a traveler is not conducting himself in a proper manner.^ And the general doctrine is not to be coiistined as meaning that the driver of an antomobile will he permitted to rely upon this assumption to the exclusion all liability for negli- gence on his part. It might be that a person would be pro- ceeding along the street, either in another vehicle or on foot, unconscious of the approach of the automobile and where this is apparent to the driver of the latter, he should act as an ordinarily prudent man would under the same conditions. Tf he does not, and thereby injures such person, he may still be regarded as negligent and liable for any injury resulting from his want of such care.^^ It has been held that a person may rely on the obedience of another traveler to a provision of law, though he has no actual knowledge of the law at tho time.*' Sec. 353. Conflict of laws. Where an action for injuries arising out of an automobile accident which happened in one State is brought in the courts of another State, the case is governed by the law of the juris- diction where the accident hapi)ened.^^ The law of the place where the injury was received determines whether a right of action exists, but the law of the place where the action is brought regulates the remedy and its incidents, such as plead- ing, evidence and practice.'^ Sec. 354. Joinder of causes of action for injuries to two per sons. Where both a husband and wife who Avere injured in an automobile accident brought an action in favor of both, alleg-- ing separate causes of action for the injuries each sustained, it was held that a demurrer on the ground that several causes 90. O'Brien v. Billing (Pa.), 110 93. Gprsman v. .\tchison. otc. B. Co. Atl. 89. (Mo.), 229 S. W. 167; Unitp defendant in order to protect the lives of travelers and as a warning to the drivers of automobiles, said : " If as a matter of fact plaintiff and his proj) erty were injured by reason of defend- ant's negligence, he was entitled to such a sum as would reasonably com- pensate him for the damages actually sustained, but no more. He was not entitled to a verdict that would protect the lives of citizens traveling on the highway, or that would be a warning to drivers of automobiles. Counsel for plaintiff insists that he did not go out- side of the record in making the state- ment complained of, for the record shows that the lives of one or more citizens were endangered, and, Vjeinij established by the record the words about the warning were within the limits of legitimate argument. Any of us know that in the minds of many citizens there is a natural prejudice against automobile owners and drivers growing out of the fact that some of them operate their machines in a reck- less manner. Because of this prejudice, it is extremely difficult to get a jury who .will calmly and dispassionately weigh the facts of a particular case, without taking into consideration the recklessness of other automobile owners and drivers. We therefore conclude that an argument like the one in ques- tion, which was evidently designed to j)lay on and increase this natural preju- dice, and therefore to arouse the pas- sions of the jury, was not within the bounds of legitimate argument. Where an automobile owner or driver is negli- gent and injures another, he should an- swer only for tho reasonable conse- quences of his own acts. He should not be mulcted in damages in order that a verdict in his case may operate as a warning to others. As the lan- guage complained of was not within the range of legitimate argument, we conclude that the trial court should have sustained defendants' objection thereto and admonished the jury not to consider it." 98. Section 357. Negligence in Operation of Motor Vehicles. 421 indefinite and uncertain and is entitled to hut little \vei?:ht.^ An averment of loss of time is said to be the same, in legal effect, as averring loss of earnings, and, where, under such an averment, evidence was received without objection showing that diminution of earnings in the future was certain, it was held that defendant was not prejudiced by lack of specific averment on the subject.' As to the selection of a physician to treat an injury, it is said that the duty of a party injured to use reasonable care to obviate, so far as possible, bad results from the injury and thereby diminish the damages, extends no further than to select one of good repute, and that for lack of care and skill shown by such physician in his treat- ment, the patient is not answerable, nor is the circumstance admissible to mitigate the damages for which the tortfeasor is liable.^ Sec. 356. Damages — mental anguish. There is a decided difference of opinion in the various jurisdictions as to the damages to be allowed for "mental anguish." Tn some jurisdictions, the rule is adopted that, when there is no physical injury or contact with an instru- mentality frightening one, there can be no, recovery for mental anguish sustained by a plaintiff.^ But in other jurisdictions, a more liberal view is taken, and it is held that where sul)- stantial injury can be traced to the fright of one caused by the negligent operation of a motor vehicle, the fact that the plaintiff did not sustain any physical injury other than in consequence of the fright docs not deprive him of his riglit of recovery.'' In one case in which it was alleged that the defend- ant negligently ran into a carriage which had stopped at the side of the road to allow defendant to pass in his automobile 99. Wolfe V. Ives, 83 Conn. 1T4. 7(i 652, ]27 S. W. 415. Atl. 526, 19 Ann. Cas. 752. The courf 2. SchoU v. Grayson. 147 Mo. App. said in this case that the fact that the 652. 127 S. W. 415. plaintiff could not state accurately his 3. Mitchell v. Roolie.«ter Ry. Co., earnings for any particular day or 151 N. Y. 107, 45 N. E. 354. 34 L. B. period, and that he kept no books of A. 781. account, went rather to the weight than 4. Spearman v. McCrary. 4 Ala. to the admissibility f)f his testimony. App. 473, 58 So. 927. 1. Scholl V. Grayson, 147 Mo. App. 422 The Law oJ)- Automobiles. and that the plaintiff received "a severe fright and sliock; that due to such fright and shock; as aforesaid caused by the negli- gence of the defendant, the said plaintiff suffered injury to her body; that at the time she was pregnant, and as a result of said fright and shock there resulted a miscarriage," causing severe pain and suffering and resulting in permanent injury to her health, it was decided that when physical injury directly flows from extreme fright or shock, caused by the ordinary negligence of one who owes the duty of care to the injured person, such fright or shock is a link in the chain of proximate causation as efficient as physical impact from which like results fiow.^ In an action to recover for injuries caused by the negli- gent operation of an automobile, in frightening plaintiff's horse and overturning his buggy, there has been held to be no error in the admission of evidence, as a part of the history of the case, that plaintiff's wife and child were in the buggy and that she held the child in her arms, where the court by its instructions negatived the idea that compensation was to be allowed plaintiff for mental anguish because of their presence.^ Sec. 357. Damages — punitive damages. In a tort action, punitive damages may be allowed by the jury, where the acts of the defendant manifested a wanton disregard of the lives or safety of others, or were wilful or malicious.' And in some jurisdictions, exemplary damages 5. Pankopf v. Hinkley, 141 Wis. wrongful act is done knowingly, wan- 146, 123 N. W. 625. 24 L. B. A. (N. S.) tonly, and recklessly, under such cir- 1159. cumstances as indicate that the wrong- 6. Neidy v. Littlejohn^ 146 Iowa, doer knew that the act was fraught 355, 125 N. W. 198. with probable injury to person or prop- 7. Bowles V. Lowery, 5 Ala, App, erty. Leinkauf & Strauss v. Morris, 66 555, 59 So. 696 ; National Casket Co. Ala. 406. To justify the imposition of V. Powar, 137 Ky. 156, 125 S. W. 279 ; exemplary damages, malice must a©- Moore v. Hart, 171 Ky. 725, 188 S. W. company the wrong complained of, or 861; Williams v. Baldrey, 52 Okla. 123, such gross negligence Or oppression or 152 Pac. 814. "Mere recklessness, fraud as amounts to malice. Wilkihr ., without more, does not constitute wan- son v. Searcy, 76 Ala. 176; Stringer r. ton or wilful injury. Exemplary dam- Railroad Co., 99 Ala. 397, 13 So. 75." ages are allowable to one injured by Bowles v. Lowery, 5 Ala. App. 555, 59 the wrong of another, \vhen the wrong So. 606. is maliciously perpetrated, or where the Mitigation of punitive damages.— Negligence in Operation of Motor Vehicles. 423 are allowed in the case of gross negligence on the part of the defendant.^ Thus, it has been held that, where an automobile was run rapidly in the night time with no lights and a child was struck, punitive damages were justified.^ And punitive damages are sometimes allowed when an automobilist con- tinues to drive his machine toward a horse which he knows is frightened on account of the machine."' It is not permissible in some jurisdictions to recover exemplary damages when the complaint alleges only simple negligence.^ Punitive dam- ages should not be so excessive as to indicate that the jury was influenced by passion Or prejudice, and they nmst have some reasonable relation to the injury and the cause thereof and must not be disproportionate to the one or the other." Sec. 358. Damages — increased damages. Where a statute permits double or treble damages for in- juries resulting from a violation of the law of the road, and two causes of action are set forth in a complaint, one for which single damages only are recoverable and the other for which double or treble may be awarded, in the discretion of the judge, in case of a general verdict which leaves it uncer- tain on which cause damages were assessed, a recovery for single damages only can be allowed." "r Sec. 359. Function of jury. Speaking in general terms, in a negligence action, the ques- tions whether the defendant was guilty of negligence and Where punitive dnmages are claimed, 9. Buford v. Hopewoll, 140 Ky. 668, evidence is not admissible in mitiga- 131 S. W. 502. tion tliereof to the effect that the 10. Searcy v. Golden, 173 Ky. 48, driver was careful and competent, the 188 S. W. 1098. And see section 548. skill of the driver not having been an 11. Louisville & N. R. Co. v. Mar- issue under the pleadings. Adler v. kee, 103 Ala. 160, 15 So. 511, 49 Am. Martin, 179 Ala. 97, 59 So. 597. St. Rep. 21 ; Roach v. Wright. 195 AI*. 8. Williams v. Benson, 87 Kan. 421, 333, 70 So. 371; Bowles v. Lowery. 5 124 Pac. 531 ; Buford V. Hopewell, 140 Ala. App. 555, 59 So. 696. K5'. 666, 131 S. W. 502; Searcy v. 12. Buford v. Hopewell. 140 Ky. Golden, 172 Ky. 42, 188 S. W. 1098; 666, 131 S. W. 502. Williams v. Baldroy, 52 Okla. 126, 152 13. Dunbar v. Jones, 87 Conn. 253, Pac. 814. 87 Atl. 787; Tillinghast v. Leppert, 93 Conn. 247, 105 Atl. 615. 424 The Law of Automobiles. whether the plaintiff was guilty of contributory negligence, are within the province of the jury. On account of the com- plications which arise from the many different classes of highways and travelers, the different surrounding circum- stances in each particular case, the application of the law of the road and regulations relative to the use of the highway, the usual conflicting evidence in such cases as to the speed of vehicles and other matters, it is clear that in automobile cases, the questions of ' negligence and contributory negligence are peculiarly for the jury. It may be in some cases that the court is able to determine the negligence of a party as a matter of law, as in the case of the violation of a statute or ordi- nance,'^ or when a pedestrian has failed to take rudimentary precautions for his safety,^^ or the driver of an automobile neglects to look for approaching cars when crossing a rail- road'" or street railway" track. But, nevertheless, the general rule is, that the negligence of the respective parties in an action for injuries arising out of the use of the highway, presents a problem for the determination of the jury.'* The 14. Section 297. 196 111. App. 81; Osberg v. Cudahy 15. See chapter XVIII. Packing Co., 198 111. App. 551; Walker 16. Sections 557-566. v. Hilland, 205 111. App. 243. 17. Sections 592-598. Indiana. — Rump v. Woods, 50 Ind. 18. Alabama. — Yarbrough v. Carter, App. 347, 98 N. E. 369. 179 Ala. 356, 60 So. 833; Adler V. Mar- Iowa. — Menefee v. Whisler, 169 tin, 179 Ala. 97, 59 So. 597; Reaves v. Iowa, 19, 150 N. W. 1034; Topper v. Maybank, 193 Ala. 614, 69 So. 137; Maple, 181 Iowa, 786, 165 N. W. 28. Taxicab & Touring Car Co. v. Cabiness, Kansas. — Ratcliffe v. Speith, 95 Kan. 9 Ala. App. 549, 63 So. 774; White 823, 149 Pac. 740; Pens v. Kreitzer, Swan Laundry Co. v. Wehrhan, 202 98 Kan. 759, 160 Pac. 200; Keil v. Ala. 87, 79 So. 479. Evans, 99 Kan. 273, 161 Pac. 639. California. — Parmenter v. McDou- Maryland. — Taxicab Co. of Balti- gall, 172 Cal. 306, 156 Pac. 460; Black- more City v. Emanuel, 125 Md. 246, 93 well v. Renwiek, 21 Cal. App. 13T. 131 Atl. 807. Pac. 94 ; Baillargeon v. Myer, 27 Cal. Massachiisetts. — Dudley v. Kings- App. 187, 149 Pac. 378. bury, 199 Mass. 258, 85 N. E. 76; Colorado. — Kent v. Treavorgy, 22 Chandler v. Matheson Co., 208 Mass. Colo. App. 441, 125 Pac. 128. .'Jfi9. 95 N. E. 103; Huggon v. Whipple JlKnois.— Crandall v. Krause. 165 1)1. & Co., 214 Mass. 64, 100 N. E. 1087; App. 15; Kirlin v. Chittenden, 176 111. Griffin v. Taxi Service Co., 217 Mass. App. 550; Rasmussen v. Drake, 185 111. 293. 104 N. E. 838. App. 526; Antrim v. Noonan. 186 111. Michifjan. — Johnson v. Clark Motor App. 360; Ferry v. City of Waukegan, Co., 173 Mich. 277, 139 N. W. 30, 44 Negligence ix Operation of .\roTOR Vehicles. 425 jury must base its verdict upon the evidence in the case, and if the plaintiff's evidence is entirely irreconcilable with the facts as to the position the two automobiles were found after L. R. A. (N. S.) 830; Gooseii v. Packard Motor Co., 174 Mich. 654, 140 N. W. 947; Schock v. Colling, 175 Midi. 313, 141 N. W. 675; Granger v. Far- rant, 179 Mich. 19. 146 N. W. 218; Brown v. Mitts, 187 Mich. 469, 153 N. W. 714. Minnesota. — George A. Hornel Co. v. Minneapolis St. Ry. Co., 130 Minn. 469, 153 N. W. 867; Benson v. Larson, 133 Minn. 346, 158 N. W. 426; Wenworth V. Butler, 134 Minn. 382, 159 N. W. 828. Missouri. — Bongner v. Ziegenheim, 165 Mo. App. 328, 147 S. W. 182; Haacke v. Davis, 166 Mo. App. 249, 148 S. W. 450; Harris v. Pew, 185 Mo. App. 275, 170 S. W. 344; Wiedeman v. St. Louis Taxicab Co., 182 Mo. App. 530, 165 S. W. 1105, 1106; William<* V. Kansas City (Mo. App.), 177 S. W. 783. New Bampshire. — Hamel v. Peabody, 78 N. H. 585, 97 Atl. 220. New Jersey. — Rabinowitz v. Haw- thorne, 89 N. J. Law, 308, 98 Atl. 315; Heckman v. Cohen, 90 N. J. L. 322, 100 Atl. 695 ; Siegeler v. Nevweiler, 91 N. J. L. 273, 102 Atl. 349. New YorTc. — Ward v. International Ry. Co., 206 N. Y. 83, 99 N. E. 268, Ann. Cas. 1914A 1170; Millman v. Appleton, 139 N. Y. App. Div. 738, 124 N. Y. Suppl. 482; Cowell v. Saperston, 149 App. Div. 373, 134 N. Y. Suppl. 284; Taylor v. Glens Falls Automobile Co., 161 App. Div. 442, 146 N. Y. Suppl. 699 ; Breese v. Nassau Electric Co., 162 App. Div. 455, 147 N. Y. Suppl. 416; Stern v. International Ry. Co., 167 App. Div. 503, 153 N. Y. Suppl. 520; Aronson v. New York Taxi- cab Co., 125 N. Y. Suppl. 756; Harris v. Burns, 133 N. Y. Suppl. 41S; Gnecco V. Pederson, 154 N. Y. Suppl. 12. North Dakota. — Mcsscr v. Bruening, 25 N. D. 599, 142 N. W. 158; Armann v. Caswell, 30 N. D. 406, 152 N. \V. 813; Messer v. Bruening, 32 N. D. 515, 156 N. W. 241. Pennsylvama. — Haring v. Connell. 244 Pa. St. 439, 90 Atl. 910; Price v. Newell, 53 Pa. Super. Ct. 628; Bickley V. Southern Pennsylvania Tr. Co., 56 Pa. Super. Ct. 113; Bew v. John Daley, Inc., 260 Pa. 418, 103 Atl. 832. Tennessee. — Studer v. Plumlee, l.'JO Tenn. 517, 172 S. W. 305. Washington. — Hillelirant v. Manz, 71 Wash. 250, 128 Pae. 892; Lewis v. Seattle Taxicab Co., 72 Wash. 320, 130 Pac. 34 1 ; Chase v. Seattle Taxicab Co., 78 Wash. 537, 139 Pac. 499; Brunei- v. Little, 97 Wash. 319, 166 Pac. 1166. Wisconsin. — Friedrich v. Boulton, 164 Wis. 526, 159 N. W. 803 ; Shortle V. Shoill (Wis.), 178 N. W. 304. Upon the general question of neg- ligence being for the jury, Mr. Cham berlayne says, hi his recent work on Evidence, "It is not disputed that the finding of the constituent facts is mat ter for the jury. It is only in cases where but one inference is logically per- missible that the court says that all facts arc established and rules, as a matter of law, as to the existence of negligoiice, ignoring the possibility that the jury might have reached a conclu- sion not permitted by the rules of rea- soning. States of fact, from which more than one inference is reasonably possible, or where the evidence as to the cxi-^tence of material facts is con- flicting, present questions for the jury, whose finding, if rational, should not be reversed." Chamberlayne's Modern Law of Evidence, § 125. 426 The Law of AuT0M0Bnj5S. their collision, the verdict for the plaintiff must he deemed to be founded on mistake, and mil be set aside." An appellate court must recognize that certain facts are controlled by im- mutable, physical laws; and it cannot permit a jury verdict to change such facts, because to do so would, in effect, destroy the intelligence of the court.^ The function of the jury in particular cases is further discussed in other parts of this work.^^ Sec. 360. Traction engines. The use of a steam traction engine and trailers upon the public highways, is not necessarily a nuisance,^^ but the law imposes on the owner of a traction engine the duty to act with due regard for the rights and safety of persons travel ing upon a public road in moving the engine over such road, and he may be liable for injuries due to negligence on his part. When it is shown that a steam roller, which frightened plaintiff's horse and caused it to run away, was operated by the defendant without sending a person ahead to warn travel- ers of its approach, in violation of the statute on the subject, a verdict for the plaintiff is warranted by the evidence, if there be no contributory negligence on his part.^ 19. Ladham v. .Ypung, 145 N. Y. 22. McCarter v. Ludlam, etc., Co., Suppl. 1089. .;;,,;'> joff >..,'!•• ,'>,;: 71 N. J. Eq. 330, 63 Atl. 761; Miller 20. Austin v. Newton (Cal. App.), v. Addison, 69 Md. 731, 54 Atl. 967. 189 Pac. 471. 23. Buchanan's Sons v. Cranford 21. See sections 452, 487, 516, 540, Co.. 112 N. Y. App. Div. 278, 98 N. Y. 677, 614, 677. Suppl. 378. Collisions With Other Vehicles. 427 CHAPTER XVI. COLLISIONS WITH OTHER VEHICLES. Section 361. Care in avoiding other vehicles, in general 362. Proof of defendant's negligence required to support aftion for injuries. 363. Unavoidable accident — generally. 364. Unavoidable accident — skidding to avoid injury to pedestrian. 365. Unavoidable accident — deflection to avoid dog. 366. Unavoidable accident — failure of brakes to work. 367. Unavoidable accident. — vehicle obscured by glare of other lights. 368. Unavoidable accident — care to avoid dangerous situation. 369. Injury from wagon. 370. Excessive speed. 371. Turning to right to pass approaching vehicle — duty of ench to ex- ercise reasonable care. 372. Turning to right to pass approaching vehicle — law of road. 373. Turning to right to pass approaching vehicle — statute requiring turn to right of center of road. 374. Turning to right to pass approaching vehicle — seasonable turn to right. 375. Turning to right to pass approaching vehicle — violation of law of road not negligence per se. 376. Turning to right to pass approaching vehicle — presumption of neg- ligence from violation of law of road. 377. Turning to right to pass approaching vehicle — rebuttal of pre- sumption of negligence from violation. 378. Turning to right to pass approaching vehicle — obedience to law of road does not excuse negligence. 379. Turning to right to pass approaching vehicle — trelile dninages un- der statute. 380. Overtaking and passing — in general. 381. Overtaking and passing — forcing forward vehicle in dangerous situ- ation. • 382. Overtaking and passing — law of the road. 383. Overtaking and passing — effect of violation of law of road. 384. Overtaking and passing — reading statute to jury. 385. Overtaking and passing — collision with second vehicle after paw- ing first. 386. Overtaking and passing — unexpected stop of forward car. 387. Overtaking and passing- -passing near corner. 388. Turning comers — in general. 389. Turning corners — turning towards thi- riglil. 390. Turning corners — turning towards the left. 391. Approaching intersecting streets — in general. 392. Approaching intersecting streets— crowded thoroughfares. 393. Approaching intersecting streets— priority of first arrival. 428 The Law of Automobiles. Section 394. Appioachiiijr intersectintp streets — juiority oivon by statute or or- dinance. 395. Vehicle standing in street. 396. Proximate cause. 397. Joint liability of both drivers to third person. 398. Contrilnitory negligence — generally. 399. Contributory negligenece — proximate result of contributory negli- gence. 400. Contributory negligence — unskillful driving. 401. Contributory negligence — alertness. 402. Contributory negligence — wantonness or recklessness of defendant. 403. Contributory negligence — violation of law of road. 404. Contributory negligence — sudden stop. 405. Contributory negligence — failure to give passing vehicle sufficient space. 406. Contributory negligence — absence of statutory lights. , 407. Contributory negligence — excessive speed. 408. Contributory negligence — passenger in dangerous position. 409. Contributory negligence — reliance on obedience of law of road by other vehicles. 410. Contributory negligence — acts in emergency. 411. Contributory negligence — last clear chance. 412. Pleading. 413. Negligence is gonerally a question for the jury. Sec. 361. Care in avoiding other vehicles, in general. The right to use the streets and highways by means of automobiles is not superior^ or inferior^ to the use by other vehicles. The duty of one operating an automobile on a public way is to use reasonable care to avoid injury to other travelers, whether they choose their method of transporta- tion by wagon, motorcycle or automobile.^ The. duties of all are equal and reciprocal. One using an automobile must not negligently or carelessly exercise his rights so that injury will result to fellow travelers lawfully using the highway, but 1. Section 50. 76 So. 522; Spawn v. Goldbedg (N. 2. Section 49. .T.).'llO Atl. 565; Boggs v. Jewell Tea 3. Carter v. Brown, 136 Ark. 23, 206 Co., 263 Pa. St. 413. 106 Atl. 781. S. W. 71; Moore v. Hart, 171 Ky. 725, '' Everything possible."— It is error 188 S. W. 861; Standard Oil Co. of for the court to charge that it is the Kentucky v. Thompson (Ky.), 226 S. duty of the driver to do everything W. 368; Simmons v. Peterson, 207 possible after he had discovered the Mich. 508. 174 N. W. 536; Oarson v. danger to prevent an accident. Sim- Turrish. 140 Minn. 445, 168 N. W. mons v. Peterson, 207 Mich. 508, 174 349; Ulmer v. Pistole, 115 Miss. 485, X. W. 536. Collisions With Other Vehicles. 429 lio must have due regard for the equal rights of others on the highway, taking into consideration the tendency of the machine to frighten horses/ or to cause injury to his fellow- travelers.^ In other words, while it is true that both a person with an automobile and a person with a team have the right to use the highway with their respective vehicles; yet it is also true that each is obligated to exercise his rights with due regard to the corresponding rights of the other and neithia, Suppl. 761. Taxicab Co. v. Stroh (Mo. App.), 215 38. Roper v. Greenspon, 272 Mo. 288, S. W. 748; Stoddard v. Reed (N. Dak.), 198 S. W. 1107, L. R. A. 1918 D. 126; 436 The Law of Automobiles. Sec. 370. Excessive speed. Negligence may be charged against the driver of a motor vehicle on the ground that he operated the vehicle at an mi- reasonahle speed.^^ Especially is this so, when the permitted speed is prescribed by statute or municipal ordinance, and the express terms of the requirement are infringed. Sec. 371. Turning to right to pass approaching vehicle — duty of each to exercise reasonable care. It is the general rule of highway travel that each traveler, whether by automobile, wagon, or other means of conveyance, must exercise reasonable care to avoid injury to his fellow travelers.^" Thus, when the driver of a horse-drawn convey- ance and an automobile are approaching each other on a public highway, the legal measure of duty is the same on both, each being reciuired to act with reasonable care to avoid an accident or collision."^ When two cars meet it is the duty of each, so far as practicable, to yield to the other the space and opportunity necessary for its safe and convenient passage.*^ Sec. 372. Turning to right to pass approaching vehicle — law of road. The law of the road,*^ founded originally on custom, but later based on positive statute and municipal regulations, in this country, requires that meeting vehicles shall, as a general rule, pass each other toward the right.''* In England, the Roper V. Greenspon (Mo. App.), 192 S. 41. Wing v. Eginton, 92 Conn. 336, W. 149. See also Cook v. Standard Oil 102 Atl. 655 ; Webb v. Moore, 136 Ky. Co., 15 Ala. App. 448, 73 So. 763; 708, 125 S. W. 152. Mahar v. Lochen, 166 Wis. 152, 164 N. 42. Wing v. Eginton, 92 Conn. 336, ^V. 847. 102 Atl. 655; Offner v. Wilke, 208 111. Collision with steel beams on wagon. App. 463. — In an action for injuries received by 43. See chapter XIV, as to the law the driver of an automobile who was of the road, generally, struck by steel beams on a wagon, it 44. Alabama. — Morrison v. Clark, 196 was held that the plaintiff was guilty Ala. 670, 72 So. 305. of contributory negligence in failing to Zowo.— Pilgrim v. Brown, 168 Iowa, see the beams. Roper v. Greenspon 177, 150 N. W. 1; Baker v. Zimmer- (Mo. App.), 192 S. W. 149. man, 179 Iowa, 272, 161 N. W. 479; 39. Sections 303-325. Buzich v. Todman, 179 Iowa, 1019, 162 40. Section 361. N. W. 259; Dirks v. Tonne. 183 Iowa, Collisions AVith Other Vkhr'les. 437 primary rule is that, when two vehicles meet, each should keep to the left. One is not permitted to pursue his course because in his judgment there is sufficient room for the other to pass without coming in collision."^ The object of the law of the road is to prevent errors of judgment and a monopoly of the center of the road by persons disposed to use it for their own advantage and to the disadvantage of others/'' Where a collision occurs between two meeting vehicles, it is proper to regard the rights of the one who is obeying the law of the road as superior fo the one who is not obeying such law.*" Hence it is said that a presumption of negligence is raised as against the driver of the vehicle on the w^rong side of the road.^^ Sec. 373. Turning to right to pass approaching vehicle — statute requiring turn to right of center of road. In some jurisdictions the law of the road has been codified by statute so as to require each driver to turn to the right of the center of the road.-^^ Such a statutory requirement has been thought to be a recognition of the common law rule ol' the road, which would exist without statutory enactment.^*^ But it has also been said that the Legislature by such a statute "thereby intended to require persons so using the public high- 403, 167 N. W. 103; Vickery v. Arm- 37 N. Dak. ISO. I(i3 N. W. 268. stead, 180 N. W. 893. 45. Hayden v. McColly, 166 Mo. Maine.— 'Palmer v. Baker, 11 Me. Apj). 675, 150 S. W. 1132. 338 46. Hayden v. McColly, 166 Mo. App. Masmchusetts.—Jaqmtli v. Richard- 675, L50 S. W. 1132. son 8 Mete. 213. 47. Morrison v. Clark, 196 Ala. 670, 1/t.fsoMri.— Marshall v. Taylor, 168 72 So. 305; Hiscock v. Phinney, 81 Mo. App. 240, 153 S. W. 527. Wash. 117, 142 Pac 461. New Jersey.— Unw'm v. State, 73 N. 48. Section 267. J. L. 529, 64 Atl. 163, affirmed State v. 49. Diehl v. Roberts, 134 Cal. 164, Unwin, 75 K J. L, 500, 68 Atl. 110. 66 Pac. 202; Stohlman v. Martin, 28 Neiv For/.-.— Tooker v. Fowlers & Cal. App. 338, 152 Pac. 310; Dunn v. Sollars Co., 147 App. Div. 164, 132 N. Moratz, 92 111. App. 277; Baker v. Y. Suppl. 213; Smith v. Dygert, 12 Zimmerman, 179 Iowa, 272, 161 N. W. Barb. (N. Y.) 613; Easring v. Lan- -'.19 \ Wright v. Fleischman, 41 Misc. Singh, 7 Wend. (N. Y.) 185. (X. Y. ) 533. 85 N. Y. Suppl. 62. Nevada.— Week v. Reno Traction 50. Wright v. Fleischman. 41 Misc. Co., 38 Nev. 285, 149 Pac. 65. (N. Y'.) 533, 85 N. Y. Suppl. 62. North Dakota. — Hendricks v. Hughes, 438 The Lam' of Automobilks. ways to keep to the right of the center of such thoroughfares at all times when possible to do so, regardk^ss of whether they should actuallj' meet or see any other person traveling on such highway in an opposite direction."^' The violation of such a statute has heen hold to he negligence,^^ but ordi- narily it is thought that a violation of the law of the road is merely prima facie evidence of negligence.^ The expression "center of the road," as used in such statutes, is construed as meaning the center of the traveled or wrought part of the road." When the highway is covered with snow, travelers who meet must turn to the right of the beaten or traveled part of the road, irrespective of the position of what is the wrought or traveled part of the road when there is no snow^ on the ground.^ This rule to turn to the right of the center of the road applies to vehicles passing on the same side of roads and streets which are so wide that to pass safely there is no necessity to turn to the right of the center line.^ A statute requiring vehicles to keep to the center of the street has no application, when the deviation is not intentional, but is merely the result of the skidding of the car across the center line.^^ Sec. 374. Turning to right to pass approaching vehicle — seasonable turn to right. Statutes have been enacted in some States requiring that vehicles which meet on the highway shall seasonably turn to the right.^^ It is not necessary for an auto driver to turn towards the right as soon as he sees that another vehicle is approaching; all that is required, is that he shall turn 51. Stohlman v. Martin, 28 Cal. App. (N. Y.) 613. 338, 152 Pac. 319. 56. Wright v. Fleischman, 41 Miac. 52. Slaughter v. Goldberg, Bo%veTi &.- (N. Y.) 533, 8,5 N. Y. Suppl. 62. Co., 26 Cal. App. 318, 147 Pae. 90. 57. Chase v. Tingdale Bros., 127 53. Section 267. Minn. 401.- 149 N. W. 654. 54. Baker v. Zimmerman, 179 Iowa. 58. See Martin v. Carruthers (Colo.), 272, 161 N. W. 479; Clark v. Common- 195 Pae. 105; Ricker v. Gray, 118 Me. wealth, 4 Pick (Mass.), 125; Shelly v. 492, 107 Atl. 295; Flynt v. Fondern Norman (Wash.), 195 Pac. 243. But (Miss.), 84 So. 188 ; Columbia Taxicab see Daniel v. Clegg, 38 Mich. 32. Co. v. Roemmich (Mo. App.). 208 S. W. 55. Jacquith v. Richardson, 8 Mete. 859. (Mass.) 213; Smith v. Dygert, 12 Barb. Collisions Witti Othkk Vehicles. 430 ** seasonably. "^^ Such a requirement is held to mean that each should turn to the right in such season that neither shall l>e retarded by reason of the other's occupying his half of the way.''^ It is not always necessary that the traveler turn out so far that his vehicle is entirely on the right side of the centet- line of the highway; but, in some cases, if he turns far enough so that the other vehicle may pass safely, it may be held that compliance has been made with the statute/'^ Ordinarily, the driver of a team will not be regarded as negligent in failing to turn out further, where there is. already sufficient space to allow an automobilist to pass in safety .^^ But a verdict against the defendant is warranted by evidence showing that he was driving upon the wrong side of the road, at an excessive rate of speed, and did not turn to the right in time to avoid a collision with th« plaintiff.^ Where it appears that plaintiff's carriage at the time of a collision ^nth an automobile was^ moving slowly within about a foot of the right-hand side of the road and was lighted with lamps on each side : and that defendant's automobile coming at a high rate of speed fron; the opposite direction ran into the carriage without any warn- ing of any kind, the negligence of the defendant is properh submitted to the jurj^" Sec. 375. Turning' to right to pass approaching vehicle — vio- lation of law of road not negligence per se. The failure of the driver of a vehicle to turn to the right upon meeting another vehicle on the highway, is not generalh negligence per se,^^ though decisions are to be found holding snch conduct to be negligence as a matter of law.^^ On the 69. Peters v. Cuneo. 123 N. Y. App. 139 Pac. 231. Div. 740, 108 N. Y. Suppl. 264. 64. Milliman v. Appleton, 139 N. Y. 60. Morrison v. Clark, 196 Ala. 670. App. Div. 738, 124 N. Y. Suppl. 482. 72 So. 305; Neal v. Randall, 98 Mc. 69. 65. Morrison v. Clark, 196 Ala. 670, 56 Atl. 209, 63 L. R. A. 668 : Bragdon 72 So. 305 ; Needy v. Littlejohn, 137 V. Kellogg (Me.), 105 Atl. 433. Iowa, 704, 115 N. W. 483; Neal v. 61. Buxton V. Ainsworth, 138 Mich. Knndall, 98 Me. 69, 56 Atl. 209. 63 532, 101 N. W. 817, 11 Det. Lea. ^ L. R. A. 668. See also Hul)bar.l v. &84', 5 Ann. Cas. 146. Bartholomew, 163 Iowa, 58, 140 N. W. 62. Savoy v. McLeod, 111 Me. 234, 13. And see section 267. 88 Atl. 721. 48 L. R. A. (N. S.) 971. 66. See sections 267. 207. 63. Llovd V. Calhoun. 78 Wash. 438. 440 The Law of Automobiles. contrary, as a general rule, a question of the defendant's negligence remains one for the jury.''" Thus, in an action to recover for injuries alleged to have been caused by the de- fendant's failure to give the plaintiif's buggy half of the road, it has been held that, if the plaintiff's horse and buggy were outside of the traveled road, the defendant need not give one-half of the road, but could run his automobile on the travele'd path, provided there was room to pass and the plain- tiff's horse had shown no signs of fright.^^ Properly con- sidered, the rule of the road is a rule of negligence, and the fact that a person was on the wrong side of the road when a collision took place, does not per se make him liable for dam- ages, but his liability is determined by the rules of law applic- able to cases of negligence. *^» A presumption of negligence may arise when the defendant is on the wrong side of the high- way ,'^*^ but the presumption is one which may be rebutted by evidence showing a sufficient reason for the deviation from the usual custom.^^ Indeed, the circumstances may be such that the defendant would have been deemed guilty of negli- gence had he not diverted his automobile to the left of the center of the highway ."^^ Sec. 376. Turning to right to pass approaching vehicle — pre- sumption of negligence from violation of law of road. Where a collision occurs between two vehicles meeting each other on a road whose width is adequate to permit a safe passage, a presumption arises that the traveler on the wrong side of the road is guilty of negligence, and a burden of ex- 67. Needy v. Littlejohn, 137 Iowa. Massachusetts. — Parker v. Adams. 704, 115 N. W. 482; McFern v. Gard- 12 Mete. 416; Rice v. Lowell Buick Co., ner,' 121 Mo. App. 1, 97 S. W. 972. 229 Mass. 53, 118 N. E. 185. 68. Needy v. Littlejohn, 137 Iowa, New Hampshire. — Brooks v. Hart. 14 704, 115 N. W. 483. N. H. 307; Taylor v. Thomas, 77 N. H. 69. Alahama.—See McCray v. Sharpe, 410, 92 Atl. 740. 188 Ala. 375, 66 So. 441. Compare Cool v. Peterson, 189 Mo. Kansas— Giles v. Ternes, 93 Kans. App. 717, 175 S. W. 244. 140, 143 Pac. 491. 70. Section 267. Maine.— P&\raeT v. Barker, 11 Me. 71. Sections 270-274. 338; Neal v. Randall, 98 Me. 69, 56 72. Section 275. Atl. 209, 63 L. R. A. 668. Collisions With Other Vkhtclks. 441 planation is placed on him to show facts excusing his failure to travel on the proper side of the road."-' In other words, the act of traveling on the wrong side of tlie liighway is prima facie evidence of negligence."* If the violation of the law is unexplained, however, it may afford conclusive evidence of carelessness.'^ Tliis rule is especially foi-ccful in case of an accident happening in the dark.'*' It is proper for the presid- ing judge to charge that the presumption is against the party who was on the wrong side of the street at the time of the accident.'" Sec. 377. Turning to right to pass approaching vehicle — re- buttal of presumption of negligence from viola- tion. The presumption that the one on the wrong side of the high- way is guilty of negligence, is one which may be rehutted."^^ 73. Califorma. — Slaughter v. Gold- berg, Bowen & Co., 26 Cal. App. 318, 147 Pac. 90; Stohlman v. Martin, 2S Cal. App. 338, 152 Pac. 319; Shupe v. Kodolph, 197 Pac. 57. Iowa. — Baker v. Zimmerman, 179 Iowa, 272, 161 N. W. 479. Maine. — Stobie v. Sullivan, 118 Me. 483, 105 Atl. 714. Massachusetts. — Pcrlstein v. Ameri- can Export Co., 177 Mass. 730, 59 N. E. 194. Michigan. — Daniels v. Clegg, 38 Mich. 32; Buxton v. Ainsworth, 138 Mich. 532, 101 N. W. 817, 11 Det. Leg. N. 684, 5 Ann. Cas. 177. Missouri. — Columbia Taxicab Co. v. Roemmich (Mo. App.), 208 S. W. 859. Netv Hampshire. — Brooks v. Hart, 14 N. H. 307. New York. — Clarke v. Woop, 159 N. Y. App. Div. 437, 144 N. Y. Suppi. 595. Pennsylvania. — Presser v. Dougherty, 239 Pa. St. 312. 86 Atl. 854. And see section 267. 74. 7iMno«.— Frank C> Wel>er Co. v. Stevenson Grocery Co., 194 111. App. 432; Yellow Cab Co. v. John G. Carl- sen, 211 111. App. 299. Maine. — Bragdon v. Kellogg. 105 Atl. 433. Massachusetts. — Sijofford v. Harlow, 3 Alien, 1 7ti ; Steele v. Burkhardt, 104 ]Mass. 59. See also Perlstein v. Ameri- can Exp. Co., 177 Mass. 530, 59 N. E. 194, 52 L. R. a. 959. J/onfflHu.— Savage v. Boyce, 53 Mont. 470, 164 Pac. 887. New York. — ^Burdick v. Worrall, 4 Barb. (N. Y.) 596. Pennsylvania. — Compare Foot v. American Produce Co., 195 Pa. St. 190; 45 Atl. 934. 49 L. R. A. 764. Hhode I.p. SS N. T. L. 2n.5. 0') 35. Page v. Brink'."? Ohicagrt Pity Ex- At!. 973. press Co., 192 111. App. 389. 39. See Mendelson v. Van Rensselaer. 36. Daly v. Case, 88 N. .T. L. 295, 95 118 App. Div. (N. Y.) 51fi. 103 N. V. Atl. 973. Suppl. 578. 37. Litherbury v. Kimmet (Cal.), 19.'i 454 The Law of Automobiles. fourth of a block away and going at between eighteen and twenty miles an hour, and is struck by the automobile when it attempts to pass on the side toward which he is driving, it is a question for the jury whether the accident is the result of the defendant' s sole negligence/^^ In an action for injuries to a plaintiff's horse and buggy, where the evidence is con- flicting as to whether the plaintiff was guilty of contributory negligence in driving on the left side of a street near a turn, it was held that the findings for the plaintiff were supported by evidence that the automobile struck the left side of the buggy before it had turned straight with the street.'^ Sec. 388. Turning corners — in general. The driver of an automobile when turning a corner is bound to exercise due care not to cause injury to other travelers. The turning of a corner at a high rate of speed may justify the jury in charging the driver of an automobile with negli- gence.^ Where one turns a corner on a wet pavement at such a speed that the automobile skids and a collision with another vehicle results from the skidding or from the attempt of the driver to straighten his course, the jury may properly charge the driver with negligence.^^ If the driver turns the corner at an excessive speed, he may be liable for injuries sustained in a collision with another vehicle, though the collision would not have happened had there not been children in the street whom the driver tried to avoid, for the jury may properly find that the excessive speed was a proximate cause of the collision.^* The course to be pursued around a comer is now generally prescribed by statute or municipal ordinance, and the requirements should be obeyed.*^ 40. Hallissey v. Rothschild & Co., 203 N". W. 179. And see section 308. . 111. App. 283. 43. Wright v. Young, 160 Ky. 636, 41. Schoening v. Young, 35 Wash. 90. 170 S. W. 25. And see section 338. 104 Pac. 132. 44. Conlon v. Trenkhorst, 195 111. 42. Wright v. Young, 160 Ky. 636, App. 335. 170 S. W. 25; MacDonald v. Kusch, 188 45. City of Oshkosh v. Campbell, 151 N. Y. App. Div. 491, 176 N. Y. Suppl. Wis. 567, 139 N. W. 316. 823; Calahan v. Moll, 160 Wis. 523, 152 Collisions With Other Vehicles. 455 Sec. 389. Turning corners — turning- towards the right. When the driver of an automobile desires to turn to the right, his course is generally simple. His principal duties are to avoid pedestrians at the crosswalks and vehicles proceed- ing along the street into which he is turning. Statutory or municipal regulations may require him to keep a certain distance from the curb when turning the corner, or may re- quire him to turn as close to the curb as possible.**^ Where an ordinance required a person driving an automobile, upon turning the corner of any street, ^'to leave a space' of at least six feet from the curb and the . . . automobile," and it appeared that along the street a building was being erected and that debris had been piled at the corner around which a fence or barricade had been constructed, compelling pedes- trians to leave the regular walk, step into the street and walk around the outside of the fence or barricade, it was held that such fence became the curb within the meaning of the ordi- nance.^'' Sec. 390. Turning- corners — turning- towards the left. One wishing to turn a corner towards the left must, not only exercise due care to avoid approaching vehicles, but must also use reasonable care to avoid a collision with a vehicle which is approaching from his rear and attempting to pass on the left side at the same time that he is moving toward the left to turn the corner. Moreover, he must take proper pre- cautions for the avoidance of vehicles proceeding along the intersecting street. Municipal regulations and statutory enactments now generally prescribe the course to be followed by one turning toward the left at a street intersection. When so turning, the driver is generally forbidden to cut the corner, but must pass to the right of the center of the intersecting streets. The failure to obey such a requirement, if it is the proximate result of a collision with another vehicle, may pre- clude the guilty driver from recovering for his injuries on the theory of contributory negligence, and may render him liable 46. Frank C. Weher Co. v. Steven- 47. Domke v. Gunning. 62 Wash. 3on Grocery Co., 194 III. App. 432. 629, 114 Pac. 436. 456 The Law of Automobiles. for the injuries sustained by the persons in the other vehicle.'^*' Indeed, if no excuse is shown for the cutting of the corner and it is a proximate cause of a collision, a finding of negli- gence can hardly be avoided.'^^ But the violation is not generally considered negligence as a matter of law.^^ The failure to make a wide turn may be excused when the condition of the highway makes such a turn impracticable or dangerous.^^ Where the primary cause of an automobile collision is the defendant's violation of the rules of the road by running on the wrong side of the road when approaching an intersecting road and cutting the corner at the intersection, he cannot evade the consequences of his negligence by setting up that the plaintiff, who originally was on the proper side of the cross street, swerved in the emergency to the wrong side of the cross street in an attempt to avoid the coUision.^^ Where the defendant's automobile collided with the plaintiff's car- riage in attempting to pass when the plaintiff was turning a corner, the question, whether the plaintiff's attempt to turn the corner by keeping to the left in the usual beaten path when the law required keeping to the right, was held to be a matter for the jury.^* 48. Arkansas. — Temple v. Walker, 127 Washim.gton. — Hellan v. Supply Laun- Aik. 279, 192 S. W. 200. dry Co.. 94 Wash. 683, 163 Pac. 9: Illhwis.—Wiilker x. HilUiTid. 20.5 Til. Stubbs v. Molbergh, 108 Wash. 89, 182 App. 243. Pac. 936, 6 A. L. R. 318. Massachysf- Y. App. Div. :.16. 103 N. Y. Suppl. Texas.— Zucht v. Brooks (Te.\. Civ. 578. App.), 216 S. W. 684. Collisions With Other \'ehicles. 457 Sec. 391. Approaching- intersecting streets — in general. In the absence of statute' or municipal ordinance givinji^ travelers in one direction special privileges, il' two travelers are approaching each other at right angles, as a general rule, the rights of each are equal, and each is bound to exercise reasonable care to avoid injury to the other. ^ To succeed in an action for injuries arising from the collision, the plaintiff must show the negligence of the other party.* If the driver of each of the colliding vehicles is guilty of negligence con- tributing to the injury, neither can recover.^' A\liat is a proper degree of care may vary according to the circumstances of particular cases. Under some conditions, a speed which would not be considered excessive or even moderate under other circumstances, would he deemed reckless. If the street intersection is one which is nmch frequented by vehicles and pedestrians, a much greater degree of vigilance would be required than at one over which there was little traffic.^^ The degree of care which the driver must exercise is one which a reasonably prudent man would exercise under the same cir- cumstances. A driver of a motor vehicle is bound to know that at street intersections other vehicles may approach to cross or to turn into the street along which he is traveling. He should, therefore, operate his car Avlth that degree of care which is consistent with the existing conditions, the rate of 54. CaK/ornw.— Bidwell v. Los An- que, 72 N. H. 531, 57 Atl. 927. geles, etc., R. Co., 169 Cal. 780, 148 New Jersey. — Erwin v. Traud, 90 N. Pac. 197. J. L. 289, 100 Atl. 184; Paulsen v. Illinois.— Hnton v. Iseman, 212 111. Klinge, 92 N. J. L. 99, 104 Atl. 95. App. 255. New York. — Towner v. Brooklyn Indiana.— Elgin Dairy Co. v. Shep- Heights R. Co., 44 N. Y. App. Div. 628. jjard (Ind. App.), 103 N. E. 433. 60 N. Y. Suppl. 289; Van Ingen v. Iowa. — Wagner v. Kloster, 175 N. W. Jewish Hospital. 182 App. Div. 10, 169 840. N. Y. Suppl. 412. Louisiana. — Shields v. Fairchild, 130 Pennsylvanyj. — Boggs v. Jewell Tea La. 648, 58 So. 497. Co., 263 Pa. 413, 106 Atl. 781; Brown Minnesota. — Carson v. Turrish. 140 v. Chambers. 65 Pa. Super. Ct. 373. Minn. 445, 168 N. W. 340. And see sections 260-262. Missouri. — W^arrington v. Byrd (Mo. 55. P>ayles v. Plumb, 141 N. Y. App. App.), 181 R. W. 1079. Div. 786, 126 N. Y. Suppl. 425. Nebraska. — Barrett \. Alamito Dairy 56. Bernardo v. Legaspi, 29 Philip- Co., 181 N. W. 5.50. pine Rep. 12. New Hampshire.— (i'lW^vrt v. Bur- 57. Section 279. 458 The Law of Automobiles. speed and his control over the car varying according to the traffic at the particular place. 'He should keep a careful watch ahead so as to avoid injury to persons approaching in vehicles on the intersecting street.^* But if a driver, as a reasonable, cautious and prudent man, believes he can drive over the intersection before the other car reaches it, he is not negligent in undertaking to do so, and if the driver of the other car causes a collision by reason of his negligent speed, the latter may be liable.^^ The weather conditions, such as a blinding snow storm or a heavy rain, may affect the degree of care to be exercised.^^ Where there is an obstruction to an automobilist's view of a street crossing, he must exercise a degree of care such as a reasonably prudent man would exer- cise under the same circumstances, to avoid injury to pedes- trians or other vehicles at the crossing.^^ The question of which of the parties was guilty of negligence, is generally for the jury."^ Sec. 392. Approaching intersecting streets — crowded thor- oughfares. It is a fundamental rule in the law of negligence that the degree of care to be exercised is proportionate to the danger. Thus the operator of a motor vehicle when approaching an intersecting street where traffic is crowded must exercist^ a greater degree of alertness and care than when approaching 58. Alabama. — Ray v. nraimun. 196 uot an absolute, control of the automo- Ala. 113, 72 So. 16. bile is required of the driver. Bald- lowa. — Fisher v. Ellstou, 174 Iowa, win's Adm'r v. Maggard, 162 Ky. 424, 864, 156 N. W. 422. 172 S. W. 674. Massachusetts. — Newton v. Mc- 59. Wagner v. Kloster (Iowa), 17.') Bweeney, 225 Mass. 402, 114 N. E. 667. N. W. 840. Mississippi. — Ulmer v. Pistole. 115 60. See section 278. Miss. 485, 76 So. 522. 61. Deputy v. Kimmell, 73 W. Va. Missouri.— Rov!e v. Hammond, 172 595, 80 S. E. 919. Mo. App. 203, 157 S. W. 880; Mitchell 62. Whattey v. Nesbitt (Ala.). 85 V. Brown (Mo. App.), 190 S. W. 354. So. 550; Gustavson v. Hester, 211 111. Pennsylvania. — McClung v. Pennsyl- App. 439; Rabinowitz v. Hawthorne, vania Taximeter Cab Co., 252 Pa. St. 89 N. J. L. 308, 98 Atl. 315 ; Mead Co., 478, 97 Atl. 694; Bew v. John Daley. Inc. v. Products Mfg. Co., 110 Misc. Inc., 260 Pa. 418, 103 Atl. 832. (N. Y.) 648, 180 N. Y. Suppl. 641. Not absolute control. — A rea.sonable, Collisions With Other Vehicles. 459 a street in the more open or suburban sections of a city." Indeed, where one of the intersecting streets is a main artery of traffic, the vehicle approaching from a street of minor importance should wait and give way to the traffic along the more crowded thoroughfare.** The rule of the equal rights of travelers at street intersections gives way in some cases to the imperative need not to interfere with the traffic along the congested Avay. But it has been held that, in the absence of positive regulation on the subject, it is not proper to show a custom giving priority to travelers on certain streets as against those on cross streets.^ Where by ordinance, it is made unlawful for the driver of an automobile to pass over a crossing at a greater speed than four miles an hour, a bicyclist or person in another vehicle is entitled to the pro- tection afforded thereby.^ Sec. 393. Approaching intersecting streets — priority of first arrival. When two vehicles are approaching a street intersection on different streets, neither is justified, as a general rule, in assuming that the other will slacken his speed so as to give him priority at the crossing.*^ When one sees that there is apparent danger of a collision, due care would seem to require that he decrease his speed ; or, if both discover the danger at the same time, each should take steps to avoid the impending collision.*^ But, where a vehicle reaches a crossing distinctly ahead of one approaching on an intersecting street, the one first arriving is generally regarded as having the right of way.^^ If the later arrival proceeds neglectful of the other's 63. Ceechi v. Lindsay, 1 Boyce 67. Brown v. Chambers, 65 Pa. Su- (Del.) 185, 75 Atl. 376, reversed Lind- per. Ct. 373. And see section 260. say V. Ceechi, 3 Boyce (Del.) 133, 80 68. See Elgin Dairy Co. v. Shep- Atl. 523; Grier v. Samuel, 4 Boyce pard (Ind. App.), 103 N. E. 433; Pas- (Del.) 106, 86 Atl. 209. cagoula St. Ry. & Power Co. v. Mr- 64. Monrufel v. B. C. Electric Co., 9 Eachem, 109 Miss. 380. 69 So. \S^. D. L. R. (Canada) 569. 69. Rump v. Keebles. 175 111. App 65. Carson v. Turrish. 140 Minn. 445, 619: Mayer v. Mellette, 65 Ind. App. 168 N. W. 349. 54. 114 n. E. 241; Barrett v. Alimito 66. Ludwigs v. Dumas, 72 Wash. 68, Dairy Co. (Neb.). 1^50; Rabinowitz v. 129 Pac. 903. Hawthorne. 89 N. J. L. 308. 98 Atl. 460 The Law oi-- x\.utoimobiles. rights and a collision ensues, the injury resulting may properly be attributed to. the negligence of such later arrival^" It is the latter's duty to slacken his speed or stop his car so that a collision will not ensue.^^ Thus, if a wagon reaches a street crossing ahead of an automobile, it has the primary right to proceed across the street ; and this is so although the driver of the wagon saw the automobile approaching, pro- vided it was not so near that a collision would naturally he ex- pected to follow. The driver of the wagon is under no duty to anticipate the negligence of the jjersons in the motor vehicle.'^ The rule granting priority to the first arrival is not in hostility to the principle of the equality of right in the streets. The principle of equality suggests the right of the first one at a crossing to use it. The right is not an absolute one exercisable arbitrarily or irrespective of the existence of other conditions, or without regard to the rights and safety of others. The principle is little, if anything, more than a convenient and usually fair rule for the guidance of travelers, and in no sense is it a fixed test of negligence. It must be exercised with decent respect to the rights of others and with due regard to the character of the travel and other conditions present.'^ The relative rights of travelers at street intersec- tions may be modified by statutory or municipal regulation.^^ Sec. 394. Approaching intersecting streets — priority given by statute or ordinance. While under the common law rule travelers at intersecting streets have equal rights, with a priority given to one who 315: McClung v. Pennsylvania Taxi Pa. St. 478, 97 Atl. 694; Yuill v. Berry- meter Cat) Co., 252 Pa. St. 478, 97 Atl. man, 94 Wash. 458, 162 Pac. 513. 694 ; Boggs v. Jewell Tea Co., 263 Pa. 71. Yuill v. Berryman, 94 Wash. 458, St. 413, 106 Atl. 781 ; Brown v. Cham- 162 Pac. 513. bers, 65 Pa. Super. Ct. 373; Yuill v. 72. Robinson v. Clemons (Cal. App.), Berryman, 94 Wash. 458, 162 Pnc 513; 190 Pac. 203; Barrett v. Alamito Dairy W, F. Jahn & Co. v. Paynter, 99 Wash. Co. (Neb.), 181 N. W. 550; Brown v. 614, 170 Pac. 132. Chambers, 65 Pa. Super. Ct. 373. 70. Rump V. Keebles, 175 111. App. 73. Carson v. Turrish, 140 Minn. 445, 619; Rabinowitz v. Hawthorne, 89 N. 168 N. W. 349. J. L. 308, 98 Atl. 315; McChmg v. 74. Section 394. Pennsylvania Taximeter Cab Co.. ;252 Collisions With 0th kr Vehicles. 461 reaches the intersection distinctly in advance ol" another, the rule may be changed by statute or inunifipal ordinance. A regulation may properly be enacted ^iviHji,- to travelers along one street the priority over those api)r()aching along a cross street, the intention being to relieve the crowded condition of traffic along the street to which priority is given.'^^ And, even where an advantage may not be grounded on the traffic conditions, modern regulations generally require the traveler to give way to one approaching an intersecting street on the right side.''® One of the difficulties involved under such a regulation is determining when one approaching from the right is close enough so that he can be said to be ''approach- ing the intersection."" Such a regulation imposes on the less favored traveler an affirmative duty to keep out of the other's way, and requires him to slow, to stop, and if need be to reverse, if otherwise the vehicles are likely to come into contact.'^ An ordinance giving a prior right to travelers on certain streets is not abrogated by a statute regulating the operation of motor vehicles, where the statute does not covor 75. Ray V. Brannan, 196 Ala. 113. 72 J. L. 289. 100 Atl. 1^4: Paulsen v. So. 16; Bruce v. Ryan, 138 Minn. 264, Klinge, 92 N. J. L. 99, 104 Atl. 95. 164 N. W. 982. New Forfc.— Brillinger v. Ozias, 188 76. California. — Mathes v. Aggeler & N. Y. App. Div. 221, 174 N. Y. Suppl. Musser Seed Co. (Cal.), 178 Pae. 713; 282. Johnson v. Hendrick (Cal. App.), 187 P enmylvania.— Bickler v. Pullman Pac. 782; Maxwell v. Western Auto Taxi Service Co., 66 Pitts. Leg. Journ. Stage Co. (Cal. App.), 189 Pae. 710; (Pa.) 93; Weber v. Breenbaum, 11.-? Kinney v. King (Cal. App.), 190 Pac. Atl. 413. 834; Howard v. Worthington (Cal. South Dakota. — Boll v. Gmesner. 176 App.), 195 Pac. 709. "NT. W. 517. Connecticut. — Newman v. Apter, 112 Wa^hinpton. — Chilhet;; v. Parsons, Atl. 350; Battilyon v. Smith & Son. ^86 Pac. 272; Nnr.t v. Hunter. 109 Inc., 112 Atl. 649; Lamke v. Harty Wash. 343. 186 Pac. 851. Bros. Trucking Co., 114 Atl. 533. ' "^"^^ bathes v. Aggeler & Musser Seed . Jott;a.-Kime v. Owens, 182 N. W. . ^"•' ^"^^ ^^1- ^97, 178 Pac. 713: Lee v. 399 Pesterfield, 77 Okla. 317, 188 Pac. 674. ir 7 J nu- ^^ xt- t_ i .. , « 78. Kiunev V. King (Cal. Ann.). 190 Maryland. — Chiswell v. Nichols, 112 „ • " ' ' ^^j ggg Pac. 834; Golden Eagle Dry Goixlf. C«. V. Mockbee (Colo.). ISO Par. S.iO; Mvnncsota.-C^rBon v. Turrish, 140 Brillingor v. O^ias. 186 N. Y. App. Minn. 445, 168 N. W. 349; Lindahl v. dj^ 221. 174 N. Y. Suppl. 282: Hull v. Morse, 181 N. W. 323. Crescent Mfg. Co.. 109 Wash. 139. 186 New Jersey. — Erwin v. Traud, 90 N. i>ac. 322. 462 The Law of Automobiles. the subject of priorities at intersecting streets.'^ The viola- tion of traffic regulations of this character is to be considered on the question of the negligence of the parties,^*^ and, like other violations of the law of the road, may create a presump- tion of negligence against the guilty traveler.^^ It still re- mains, however, the province of the court and jury to deter- mine whether the respective parties have exercised the degree of care imposed on them; and the fact that one party is entitled to priority does not relieve him from the duty of exercising reasonable care to avoid injury to other travelers.^ The driver, not entitled to priority may properly assume that the other will not approach at an excessive speed.^' One entitled to priority under the law is nevertheless required to keep a lookout for cars approaching from his left ; and, if he fails in this respect, he may be charged with negligence." But, until he discovers to the contrary, he is entitled to assume that he will be accorded the right of way.^^ One entitled to priority along a certain street is not necessarily allowed to carry such privilege wdth him when he is turning from such street into a cross street.^^ When making the turn, he must 79. Bruce v. Ryan, 138 Minn. 264, Spawn v. Goldberg, 110 Atl. 565. 164 N. W, 982; Freeman v. Green (Mo. New Zorfc.— Ward v. Clark, 189 N. Y. App.), 186 S. W. 1166. See also Seager App. Div. 344, 179 N. Y. Suppl. 466; V. Foster, 185 Iowa, 32, 169 N. W. 681, Blum v. Gerardi. Ill Misc. (N. Y.) 617, 8 A. L. R. 690. 182 N. Y. Suppl. 297 ; Schultz v. Nichol- 80. Covel V. Price, 39 Cal. App. 646, son, 116 Misc. (N. Y.) 114. 179 Pac. 540 ; Bruce v. Ryan. 138 Minn. Oklahoma. — Lee v. Pesterfield, 77 264, 164 N. W. 982. Okla. 317, 188 Pac. 674. 81. Section 267. Washington. — Greater Motors Corp. 82. Alabama. — Ray v. Brannan, 176 v. Metropolitan Taxi Co., 197 Pac. 327. Ala. 113, 72 So. 16. 83. Golden Eagle Dry Goods Co. v. Colorado.— Golden Eagle Dry Goods Mockbee (Colo.). 189 Pac. 850. Co. V. Mockbee, 189 Pac. 850. ^ 84. Ulmer v. Pistole, 115 Mass. 485, Michigan. — Gleck v. Luckenbill, 183 76 So. 522; Erwin v. Traud, 90 N. J. L. N. W. 729. • 289, 100 Atl. 184. But see Oberholzer Minnesota. — Roseman v. Petersou, v. Hubbell (Cal. App.), 171 Pac. 436; 179 N. W. 647 ; Lindahl v. Morae, 181 Ward v. Clark, 189 N. Y. App. Div. N. W. 323. 344, 179 N. Y. Suppl. 466. Missouri. — Schneider v. Hawks (Mo. 85. Freeman v. Green (Mo. App.), App.), 211 S. W. 681. 186 S. W. 1166. New Jersey. — Erwin v. Traud, 90 N 86. Clark v. Fotheringham, 100 J. L, 289, 100 Atl. 184; Paulsen v. Wash. 12, 170 Pac. 323. Klinge, 92 N. J. L. 99, 104 Atl. 95; Collisions With Other Vehicles. 463 exercise caution to avoid a collision with vehicles passing along the cross street, and reasonable care may require that he yield or delay his turn, if another vehicle is then passing." Sec. 395. Vehicle standing in street. For a reasonable period, the owner of an automobile may permit the same to remain motionless in the street, when it will not unduly impede travel along the street, and when such practice is not forbidden by statute or municipal ordinance.^ When, therefore, a motor car or other vehicle is lawfully standing on the side of the street with sufficient room for other vehicles to pass without a collision, it may be negligent for another vehicle to run into it.^^ Thus, when an automobile which was standing in a proper place along a highway was struck and damaged by a ladder which projected from a wagon, the owner of the automobile was permitted to recover for his damages.^*^ It may be that in some cases the doctrine of res ipsa loquitor would apply when a standing vehicle is struck by a moving one, so as to place on the driver of the moving vehicle the burden of explaining the cause of the acci- dent f^ but the doctrine is not applicable when it is shown by the plaintiff that his automobile was injured on account of a collision between a street car and a truck whereby the truck was thrown against his car.^^ Even if the doctrine were applicable in such a case, it would not operate to shift the burden of proof upon the truck owner to show that the proxi- mate cause of the accident was negligence in the operation of the railway, as the truck owner was bound only to overcome any presumption of negligence on his part which, in the 87. Buzich v. Toaman, 179 Iowa, M'sc. (N. Y.) 527, 169 N. Y. Suppl. 1019, 162 N. W. 259; W. F. Jahn & 188; Baum v. American Ry. Express Co. V. Paynter, 99 Wash. 614, 170 Pac. Co., 177 IST. Y. Suppl. 156; Smoak v. 132; Clark v. Fotheringham, 100 Wash. Martin, 108 S. Car. 472, 94 S. E. 869. 12, 170 Pac. 323. 90. Denny v. Strauss & Co.. 109 N. Y. 88. See section 340, et seq. Suppl. 26. 89. Collins v. Marsh, 176 Cal. 639, 91. Bauhofer v. Crawford, 16 Cal. 169 Pac. 389; Mitchell v. Kramer. 211 App. 679, 117 Pac. 931. 111. App. 563; Odon v. Schmidt, 52 La. 92 O'Donohoe v. Duparquet, Huot & Ann. 219, 28 So. 350; Denson v. M<'- Moneuse Co., 67 Misc. CN. YA 435. 123 Donald Bro.s.. 144 xMinii. 2.^2. 1 7 J X. .\. V. Suppl. 193. W. 108; Albcrtson v. .\j;bbuLhLT, iOJ 464 The Law of Automobiles. absence of explanation, might be inferred from the happening of the accident.^3 ^nt, when negligence is shown on the part of the drivers of two machines approaching an intersecting street, thereby causing one to swerve and strike an automobile standing by the curb, the drivers may be concurrent tort- feasors and may be sued jointly or severally.^' The law of the road requiring vehicles to keep on the right side of the highway has no application in an action for injuries arising from a motor vehicle running into carriage or other convey- ance standing by the side of the highway .^^ A person leaving an automobile unattended in the street must exercise reasonable care to avoid injury to other per- sons f' and whether he has fulfilled his duty of care, is gen- erally a question for the jury.^^ The absence of lights on a motor vehicle after dark, may be sufficient to charge its opera- tor with negligence,^^ though the leaving of an unlighted car without indication of danger in a public highway, is not negli- gence as a matter of law.^^ The driver should fix the brakes or otherwise adjust its mechanism so that it will not auto- matically start. Sec. 396. Proximate cause. Assuming the negligence of an automobile driver, it is a general rule in the law of negligence that one is liable for those injuries which proximately result from an act of negli- gence.^ There must be a casual connection between the act of negligence and the resulting injury.^ But his liability extends 93. O'Donohoe v. Duparquet, Huot & 349, 132 Pac. 33, 48 L. R. A. (N. S.) Moneuse Co., 67 Misc. (N. Y.) 435, 123 827. And see sections 344-348. N. Y. Suppl. 193. 99- Nesbit v. Crosby, 74 Conn. 554, 94. Foley v. Lord, 232 Mass. 368, 122 51 Atl. 550. N. E. 393. 1- Hartje v. Moxley, 235 111. 164, 85 95. Smoak V. Martin, 108 S. Car. 482. N. E. 216; Greater Motors Corp. v. 94 S. E. 869. Metropolitan Taxi Co. (Wash.), 197 96. American Express Co. v. Tony, Pac. 327. 126 Md. 254, 94 Atl. 1026. 2. Morrison v. Clark, 196 Ala. 670, 97. American Express Co. v. Terry, 72 So. 305; Ackerman v. Fifth Ave. 126 Md. 254, 94 Atl. 1026. See also Coach Co., 175 App. Div. 508, 162 N. Y. Harris V. Burns, 133 N. Y. Suppl. 418. Suppl. 49; Carlisle v. Hargreaves 98. Jaquith v. Worden, 73 Wash. (Wash.), 192 Pac. 894. Collisions With Other Vehicles. 40.") to all injuries which are the proximate result of the negli- gence in question.^ When a motor vehicle is not licensed and registered according to the statute on the suhject, the viola- tion of the law does not generally make the automobile a trespasser, and its owner is not liable as such, though a different rule prevails in Massachusetts.* The failure to ob- serve the law is not a proximate cause of an injury occasioned by the machine. But, when one negligently manages a motor vehicle so as to cause another conveyance to collide with a third vehicle, the injury to the second or third vehicle may be held to be the proximate result of the negligence.^ Thus, where the driver of an automobile negligently comes into a street at a high rate of speed or unlawfully cuts the corner, so that another automobile in veering away to avoid an acci- dent, collides with a plaintiff's car, the driver of the first mentioned auto may be liable for the damages to the plain- tiff's car.^ In such a case, whether the injury is the proximate result of the act of neglect, may be a question for the jury." And when automobiles collide with such force as to force one of them against a pedestrian or other vehicle, the negligent driver may be liable for the injuries, although it was not his car which struek the pedestrian.^ Similarly, if a collision forces a car across a sidewalk and against a building so that an occupant of the building is thrown down, there may be liability.^ So, too, when one machine strikes a wagon and throws out an occupant thereof, and another machine follow- ing close behind strikes the occupant, an action may be main- tained against the drivers of both machines.^" 3. Haynes v. Sosa (Tex. Civ. App.), 7. Hellan v. Supply Laundry Co., 94 198 S. W. 976. Wash. 683, 163 Pac. 9. 4. Sections 125-127. 8. Stuart v. Doyle (Conn.), 112 Atl. 5. Page V. Brink's Chicago City Ex- 653; Sullivan v. William Ohlhaver Co., press Co., 192 111. App. 389; Jackson 291 111. 359, 126 N. E. 191; Meech v. V. Burns, 203 111. App. 196; Conley v. Sewall, 232 Mass. 460. 122 N. E. 446. Lafayette Motor Car Co. (Mo. App.), 9. Howarth v. Barrett (Pa.). 112 221 S. W. 165. Atl. 536. 6. Jackson v. Burns, 203 111. App. 10. Baggy v. Miller, 180 Iowa 114i'.. 196; Hellan v. Supply Laundry Co., 94 l'>2 N. W. 854. Wash. 683, 163 Pac. 9. 30 466 The Law or Automobiles. Sec. 397. Joint liability of both drivers to third person. Where, by reason of the concurrent negligence of both drivers of two colliding vehicles, a passenger in one is injured, he has his remedy against both drivers." The cause of action is a joint tort, for which both drivers are jointly and severally liable.^2 t^o defendants, under such circumstances, may be joined as defendants, although there is no common duty, common design, or concert of action between them.^* It is not material that one of the defendants is a taxicab company, and hence as a common carrier of passengers is charged with the highest degree of care to avoid injury to its passenger." The negligence of one of the drivers is no excuse for the negli- gence of the other; each defendant is bound to answer for the results of his own negligence.^^ Thus, the fact that the 11. As to injuries to guests, see Chapter XXIV. As to liability for in- juries to a passenger carried for hire, see sections 169-170. 12. Kilkenny v. Bockius, 187 Fed. 382; Carter v. Brown, 136 Ark. 23, 206 S. W. 71; Blackwell v. American Film Co. (Cal. App.), 192 Pac. 189; Zucht V. Brooks (Tex. Civ. App.), 216 S. W. 684. " It is difficult to imagine a more typical case of a joint tort than the case of two drivers, who by their simul taneous negligence come into collision, with a force that is the resultant of the momentum of each or both, and which resultant is so transmitted to a passen ger as to throw him out of one of the vehicles, to his injury. For a court to analyze an event of this kind into two causes of action, so distinct and inde- pendent that the two defendants could not be joined in a single action, would bfe to ignore physical law as well as common law." Kilkenny v. Bockius, 187 Fed. 382. Amendment of complaint.— When a complaint alleges that two defendants owned and negligently operated both automobiles, whereby they came into collision to the damage of the plaintiff. and the facts are that the defendants severally owned and severally operated the automobiles, the declaration should be amended to state the case the plain- tiff intends to present to the jury. Kil- kenny V. Bockius, 187 Fed. 382. Joint tort-feasors. — " Where two par- ties are guilty of separate acts of negli- gence which jointly and concurrently co-operate and cause an injury, the par- ties are joint tort-feasors. In a suit against two defendants a petition is not subject to demurrer upon the ground that there was a misjoinder of actions or parties defendant, where the petition alleges that the plaintiff was injured in a collision between two auto- mobiles caused by the concurrent negli- gence of the two defendants in ap- proaching each other from intersecting roadways, each driving an automobile at an illegal rate of speed. .Akin v. Brantley (Ga. App.), 106 S. E., 214. 13. Mitchell v. Brown (Mo. App.), 190 S. W. 354; Carlton v. Boudar, 118 Va. 521. 88 S. E. 174, 4 A. L. R. 1480. 14. Carlton v. Boudar, 118 Va. 521. 88 S. E. 174, 4 A. L. R. 1480. And see section 282. 15. BlackweU v. American Film Co. Collisions With Other Vehicles. 467 vehicle in which the plaintiff was riding did not have the lights required by statute, does not excuse the negligence of the driver of the automobile colliding therewith.^*^ When each defendant attempts to show that the other is solely blamable for the accident, the jury may find a verdict against both; or, in case of conflicting evidence, may believe the evidence produced by one of the defendants and exonerate him while holding the other." Sec. 398. Contributory negligence — generally. As a general rule a traveler injured by a collision on the highway must be free from contributory negligence, and where a suit is brought, the plaintiff must prove, not only want of care on the part of the defendant, but also reason- able care on his part.^'' If both parties are in pari delicto, (Cal. App.), 192 Pac. 189. See also Hackworth v. Ashby, 165 Ky. 796, 178 S. W. 1074, wherein it was said: "The issue in this case was whether the de- fendants, through the driver of their car, were negligent, and whether such negligence, if any, caused or con- tributed to the plaintiff's injuries. These things being found to be true, negligence on the part of Carrather's in driving the car in which plaintiff was riding would not excuse the negli- gence of defendants, for even if Car lather's was negligent, and his negli- gence concurred with negligence upon the part of the defendants in causing plaintiff's injuries, she may recover from the defendant tlierefor. Paducah Traction Company v. Sin, 111 S. W. 356, 33 Ky. Law Bep. 798. Nor ia the degree to which defendants negligence contributed in causing the injury necea sary to be determined." See also Mi chell V. Brown (Mo. App.), 190 S. W. 354; Carlton v. Boudar, 118 Va. 521. 88 S. E. 174, 4 A. L. E..1480. 16. Carlton v. Boudar, 118 Va. 521, 88 S. E. 174, 4 A. L. E. 1480. 17. Mitchell v. Brown (Mo. App.), 190 S. W. 354. 18. Connecticut. — Hawkins v. Qarford Trucking Co., 114 Atl. 94. Illinois.— YcWow Cab Co. v. John G. Carl.sen, 211 111. App. 299; Quatavson V. Hester, 211 111. App. 439. Iowa. — Dirks v. Tonne, 183 Iowa, 403, 167 N. W. 103. Kentucky. — Standard Oil Co. of Ken- tucky V. Thompson, 226 S. W. 368. Maine. — Sylvestei v. Gray, 118 Me. 74, 105 Atl. 815. Michigan. — Geeck v. Luckenbill, 183 N. W. 729. Mimnesota. — Hornden v. Miller, 145 Minn. 483, 175 N. W. 891. New York. — Albertson v. Ansbacher, 102 Misc. (N. Y.) 527, 169 K. Y. Suppl. 188. Ohio. — Chesrown v. Bevier, 128 N. E. 94. Tennessee. — Bejach v. Colby, 141 Tenn. 686, 214 S. W. 869. 4 Fermont. — Bianchi v. Millar, 111 Atl. 524. %> Washington. — Abling v. Nielson, 186 _ Pac. 887. ^ Wisconsin. — Yahnke v. Lange, 168 _^Wis. 512, 170 N. Y. 722. 468 The Law of Automobiles. the law will afford relief to neither." Modifications of the general rule have been made by statute in some jurisdictions. Thus in a few States, the doctrine of ''comparative" negli- gence is in force.^'^ And, within recent years statutes in some jurisdictions have removed the burden from the plaintiff of showing absence of contributory negligence, and placed on the defendant the affirmative burden of establishing such defense.21 whether the driver of a vehicle or a passenger therein has been guilty of contributory negligence which was the proximate cause of an accident, is generally a question' for the jury. In another place in this work is discussed the questions relative to the imputation of the negligence of the driver of a vehicle to a passenger therein.^^ Sec. 399. Contributory negligence — proximate result of con- tributory negligence. One of the fundamental propositions of the law of negli- gence is that of the contributory negligence of an injured person, to bar a recovery, must be the proximate cause of the injury sustained. Negligence on the plaintiff's part which does not contribute to the injury will not prevent his recov- gj.y 23 Thus, negligence in the management of his vehicle 19. Berz Co. v. Peoples' Gas Light ifaiJie.— Kennard v. Burton, 25 Me. & Coke Co., 209 111. App. 304; Hilton 39. V. Iseman, 212 111. App. 255. Massachusetts. — Parker v. Adams, 12 20. Robison V. Troy Laundry (Neb.), Mete. (Mass.) 415. 180 N. W. 43. Missouri. — Lawler v. Montgomery 21. Howard v. Worthington (Cal. (Mo. App.), 217 S. W. 856; Stack v. App.), 195 Pac. 709; Hallowell v. General Baking Co. (Mo.), 223 S. W. Cameron (Cal.), 199 Pac. 803; Levy v. 89; Alyea v. Junge Baking Co. (Mo. Steiger, 233 Mass. 600, 124 N. E. 477. App.), 230 S. W. 341. 22. Sections B79-687. * Nebraska. — Robinson v. Troy Laun- 23. California.— Jlonse v. Fry, 30 Cal. ^ dry, 180 N. W. 43. App. 157, 157 Pac. 500; Wilkinson v. -*' Permsylvania. — Hardie v. Barrett, Rohrer (Cal. App.), 190 Pac. 650. -- 257 Pa. 42, 101 Atl. 75. Georgia.— Schofield v. Hatfield (Ga.j> Washin.gton.—DeLy8 v. Powell-San- App.), 103 S. E. 732. ^L^OTS Co., 90 Wash. 31, 155 Pac. 407. Illinois. — Graham v. Hagmann, 270 _': Wisconsin. — Mahar v. Lochen, 166 111. 252, 110 N. E. 337; Moyer v. Shaw 4i Wis. 152, 164 N. W. 847; Benesch v. Livery Co., 205 111. App. 273. ^_ Pagel, .177 N. W. 860. Iowa. — Clark v. Weathers, 178 lowa,-^ England. — Chaplin v. Hawes, 3 Car. 97, 159 N. W. 585. S.& ?• 555 ; Wayde v. Lady Carr, 2 Dowl. *^& R. 255; Clay v. Wood, 5 Esp. 44. (*()i,i,isi()Ns With Otiiki; N'khicles. 4(>1' after n collision caused by the (Icri'iidaiirs negligence, will not relieve the defendant from liability, unless the plaintiff's conduct actually contributed to the result.'-^ And the failure of plaintiff's vehicle to have the statutory lights fastened thereto, will not forbid a recovery, unless the absence of lights is one of the proximate causes of the collision.-^ So, the fact that a motor truck was not kept reasonably close to the right- hand curb, as required by ordinance, will not bar an action for injuries thereto, where" the colliding automobile had ample space to pass.^ And the fact that the plaintiff's machine was not duly registered and licensed according to the statutory requirements, does not generally bar the plaintiff's remedy.^^ Likewise, the failure of the chauffeur to have a license as required by law, is not ordinarily the proximate cause of a collision with another vehicle, and will not preclude a recovery for his injuries.^^ Sec. 400. Contributory negligence — unskillful driving. Unskillful or reckless driving on the part of one injured by a collision between two vehicles will generally^ be a bar to a recovery for his injuries, if his conduct actually contributed to the injury. AVhere the plaintiff w^as unable to stop his motor vehicle in time to avoid a collision with a wagon across the road, and one of the causes of the accident was the unex- pected failure of the transmission gears to work, and they had never before failed, it was held that the driver of the motor vehicle was not guilty of contributory negligence as a matter of law.^® When one automobile negligently attempted to pass 24. Belk V. People, 125 111. 584, 17 Suppl. 761. wherein it was said: "It N. E. 744. cannot be said that, as matter of law, 26. Section 347. the plaintiff was guilty of contributory 26. House v. Fry, 30 Cal. App. 157, negligence, barring recovery in view of 157 Pac. 500. the absence of evidence that the trans 27. Dixon v. Boeving (Mo. App.), mission had ever before caught, or that 208 S. W. 279. And see section 125. any difficulty whatever had ever before 28. Moyer v. Shaw Livery Co., 205 been experienced in reversing the mo- 111. App. 273; Stack v. General Baking tion of the car; that the plaintiff was Co. (Mo.), 223 S. W. 89. .\nd see sec- an e.xperienced chauffeur and machinist, tion 226. and thoroughly familiar with this car 29. Manion v. Loomis Sanatorium, by reason of having operated it for 162 N. Y. App. Div. 421, 147 N. Y. tliree seasons, and knew that he could 470 The Law of Automobiles. another motor vehicle and as a result thereof, the latter was crowded off the bank, it was held to be a question for the jury whether the driver was guilty of contributory negligence in his control and management of his car.'** Sec. 401. Contributory negligence — alertness. Reasonable care requires that one driving along a public highway should exercise the degree of alertness exercised by an ordinary prudent man to avoid collisions with other con- veyances. The driver of a vehicle cannot be said to be in the exercise of due care if he is asleep while proceeding along the public highway and, if he sustains a collision with another conveyance while in such condition, he will not generally be permitted to recover.^^ But there is no imperative duty rest- ing upon pedestrians or upon travelers in a horse-drawn vehicle on public highways to keep a continuous lookout for automobiles, under penalty that, if they fail to do so and are injured, contributory negligence will be conclusively imputed to them.'2 The duty resting upon the driver of an ordinary horse-drawn vehicle to be watchful for the approach of auto- mobiles and to prevent injury from them, is no greater than the duty resting upon the drivers of automobiles to be watch- ful for travelers in other vehicles in order to prevent injury- ing them. The rights and duties of each in the premises are reciprocal.'^ To enable an automobilist to recover for injuries received in a collision with another vehicle, he should have had the machine under reasonable control and running at stop it within 100 feet, traveling at the of the highway to pass in safety in speed of twenty miles per hour, and the rear of the wagon." hence in less than that distance travel ing from twelve to fifteen miles pe hour, and that the teamster was cross ing the road diagonally from the lan( headed towards the bam upon the op posite side of the highway, and travel ing at a pace which the uncontradieterl testimony shows would, had he con tinued it, have taken him sufficiently far to have allowed the plaintiff by continuing along the right hand aid6 App. 631. 30. Granger v. Farrant, 179 Mich. 19. 146 N. W. 218. 31. Grogitzki v. Detroit Ambulance Co., 186 Mich. 374, 152 N. W. 923. See also Savage v. Boyce, 55 Mont. 470. 164 Pac. 887. 32. Graham v. Hagmann, 270 111. 252, 110 N. E. 337. 33. Graham v. Hagmann, 270 IH. 252, 110 N. E. 337, affirming 180 I'l. Collisions With Other Vehicles. 471 such a speed as would enable him to stop before striking an obstruction, lie is held to have seen that which with ordinary care he would have seen in time to avert an injury.^^ A traveler is not required to be continuously on the alert to see if an approaching vehicle, which is upon the proper side of the road, will violate the law of the road, there being no intervening obstacle or cause to lead a person in the exercise of reasonable care to anticipate that such a course will be pursued.^^ One approaching a railroad crossing is charged with grave duties as to stopping and looking for the trains,''' but the rules as to railroad crossings have no application to the usual travel upon public highways, as between automobiles and other highway conveyances.^ One approaching a street intersection is not necessarily required to stop, look, and listen, as is required in many States if one is approaching a railroad crossing. A question for the jury is generally pre- sented.^ But one who attempts to cross an intersecting street without looking in either direction may be adjudged to be guilty of contributory negligence as a matter of law.-^^ ■ 34. Roper v. Greenspon (Mo. App.). therein. They travel on fixed tracks 192 S. W. 149 ; Farrell v. Fire Ins. Sal- and cannot turn aside, and the danger vage Corps, 189 N. Y. App. Div. 795, to be encountered in entering thereon is 179 N. Y. Suppl. 477. .so well known and is a matter of such 35. Tsehirley v. Lambert, 70 Wash. common knowledge that, when a trav- 72, 126 Pae. 80. Seo also Trout Auto eler on a public highway fails to use Livery Co. v. People's Gas Light & the ordinary precautions before driving Coke Co., 168 III. App. 56. thereon, the general knowledge and ex- 36. See Chapter XXI. perience of mankind condemn such con- 37. Oberholzer v. Hubbell (Cal. duct as negligence. But a public .'Street App.), 171 Pac. 436; Graham v. Hag- crossing is not ordinarily a dangerous mann, 270 111. 252, 110 N. E. 337. place, and all persons entering thereon Distinction between railroad cross- have a right to assume that all others ings and street crossings. — " Railroads about to use the same will exercise due are engaged in the performance of a care and caution to prevent injury to business of a quasi public nature, and them." Graham v. Hagmann. 270 111. in carrying out the purposes for which 252, 110 N. E. 337. they are created must necessarily often 38. Oberholzer v. Hubbell (Cal. operate their trains at such a high rate App.), 171 Pac. 436; Warrington v. of speed that they cannot be brought Byrd (Mo. App.), 181 S. W. 1079. to a sudden stop without endangering 39. Jacobson v. O'Dette CR. !.■), 10-? the lives and safety of those ridine .\tl. 653. 472 Thk Law of Automobiles. Sec. 402. Contributory negligence — wantonness or reckless- ness of defendant. The fact that the plaintiff was guilty of contributory negli- gence which was one of the causes of a collision with another vehicle on the highway, will not, as a general proposition, bar a recovery for his damages, if the injury was principaUy caused by the wanton or reckless operation of the defendant's vehicle.^" Thus, though one is on the wrong side of the high- way, or is otherwise in a position where another has a primary right to pass and is thus perhaps guilty of contributory negli- gence, nevertheless the driver of another vehicle cannot run him down with impunity.*^ Sec. 403. Contributory negligence —violation of law of road. When a collision is the result of a violation of the hiw of the road, negligence is prima facie charged against the guilty party,^^ and he is generally not entitled to recover for his injuries.''^ The presumption of negligence which arises from a violation of the law of tlie road, is one which may be re- butted by evidence showing some excuse for the variance from the proper course/^ Thus, the plaintiff may rebut the infer- 40. Black V. "Blacksher, 11 Ala. App. 282; Russell v. Kemp, 95 Misc. (N. Y.) 545, 66 So. 863; Grooitski v. Detroit 582, 159 N. Y. Suppl. 865. Ambulance Co., 186 Mich. 374, 152 N. Wisconsin.— RasweW v. Reuter, 177 W. 923. N. W. 8. 41. Brooks V. Hart, 14 N. H. 307. Disregard of rules.— Wliere the 42. Section 267. driver of a buggy in the streets of a 43. California.— Kinney v. King (Cal. city disregards all the rales prescribed App.), 190 Pae. 834. for vehicular traffic and is grossly neg- lotoa.—Buzieh v. Todman, 179 Iowa, ligent from the standpoint .of common 1019, 162 N. W. 259; Giese v. Kimball, experience, and as a result of such neg- 184 Iowa. 1283. ' ligence is brought into collision with Louisiana.— Ueems v. Chavigny, 139 another vehicle, he is not entitled to La 539 71 So. 798. recover from the owner of the other Maine.^Uk-ker v. Gray, 118 Me. 492, vehicle the damages which he thereby 107 Atl. 295; Sylvester V. Gray, 118 Me. sustains. Reems v. Chavigny, 139 La. 74, 105 Atl. 815. 539, 71 So. 798. Missouri.— Barton v. Faeth, 193 Mo. 44. Hoover v. Reichard, 63 Pa. Super. App. 402, 186 S. W. 53. 517. "If it was true that the plaintiff New Yorfe.— Brillinger v. Ozias, 184 was so situated, as he claims, that he N. Y. App. Div. 221, 174 N. Y. Suppl. could not turn from his course in the Collisions With Other Vehicles. 47o ence of negligence by showing that he was compelled to drive his machine to the wrong side of the highway in order to avoid the negligence of the defendant/^ And the fact that the plaintiff is violating the law of the road does not authorize another person to run him down,'*^ Nor does it relieve one from the obligation of exercising reasonable care for the avoidance of injury to such traveler/' Where the driver of an automobile turned a curve at a high rate of speed, it was held there could be no recovery for injuries caused by collision with another automobile, even though the latter was on the wrong side of the road, it appearing that such driver knew that automobiles were liable to be on such side in order to avoid rough stone and gravel on the other side."*^ T\niere a chauffeur on a wet day drove an automobile at a speed of twelve or thirteen miles an hour on a street where the vieAv was obstructed, and, in order to avoid a motor truck which was about to turn into the side street, handled his car so that it skidded sideways into the truck, he is guilty of contributory negligence, though the truck was not on the proper side of the street at the turning/^ AVhere the primary cause of an auto- mobile collision was the defendant's violation of the law of the road by running on the wrong side of the road when approaching an intersection and cutting the corner at that intersection, he cannot evade the consequences of his negli- gence by setting up that the plaintiff, who was originally on the proper side of the street, had swerved in the emergency to the wrong side in an attempt to avoid the collision.^ The circumstance that a team was driven on the left side of the road when it was overtaken by an automobile driven at n dangerous rate of speed, does not necessarily constitute con- center of the highway, because other 440. vehicles near prevented him from so 46. Section 402. doing, negligence is not to be impute-l 47. Ray v. Brannun. HKi Ala. 113, to him for his failure to turn to the 72 So. 16. right when meeting the vehicle of the 48. Wheeler v. Wall, 157 Mo. .\pi>. defendant." Hayden v. McColly, 166 38. 137 S. W. 63. .Mo. App. 675, 150 S. W. 1132. And 49. Ellison v. Atlantic Refining Co.. see sections 270-274. 62 Ta. Super. Ct. 370. 45. Eberle Brewing Co. v. Briscoe 50. Bain v. Fuller. 20 D. L. R. Motor Co., 194 Mich. 140. 160 N. W. (Canada) 113. 474 The Law of Automobiles. tributory negligence on the part of the driver, where the statute does not prohibit the driving on the left side of the road but only requires the driver to turn to the right when another overtakes him and indicates a desire to pass.^^ But, in a case where the collision between two automobiles would not have occurred had the plaintiff not turned to the left, his recovery of damages will be barred, although he thought that the defendant was not going to turn out, such belief not being well founded and there being an opportunity to turn to the right.^^ Even though the plaintiff has violated the law of the road, there always remains the question whether the viola- tion was a proximate cause of his injuries ; if not the proxi- mate cause, the violation does not bar his right of action/'^ Sec. 404. Contributory negligence — sudden stop. The driver of a vehicle may be charged with negligence if he suddenly slows or stops his vehicle when he knows that there is another vehicle so close behind that a collision will probably ensue.^^ Particularly is this so when the driver of the forward car violates a positive regulation requiring him to give a signal to a following machine of his intention to stop.^^ Sec. 405. Contributory negligence — failure to give passing vehicle sufficient space. Ordinarily the driver of a team will not be regarded as negligent in failing to turn out further to allow an automobilist 51. Pens V. Kreitzer, 98 Kans. 759, driving twenty-five feet from the 160 Pae. 200. right-hand curb in violation of a traffic 52. Lloyd v. Calhoun, 83 Wash. 35, ordinance twice gave a stop signal bufc 143 Pac. 458, overruling 78 Wash. 438, stopped only after the second one, con- 139 Pac. 231. stitutes such contributory negligence 53. House v. Fry, 30 Cal. App. 157, as precludes a recovery for damages by 157 Pac. 500; Wilkinson v. Rohrer, defendant's car running into the rear (Oal. App.) 190 Pac. 650; Mahar v. of the automobile. Russell v. Kemp, Lochen, 166 Wis. 152, 164 N. W. 847" 95 Misc. (N. Y.) 582, 159 K Y. Suppl. 54. Strever v. Woodward, 178 Iowa, 865. 30, 158 N. W. 504. 55. Clark v. Weathers, 178 Iowa, 97^ Giving stop signal.— The act of the 159 N. W. 585. driver of an automobile, who, while CuLLisioxji With Other Vehicles. 475 more room where there is already sufficient space for him to pass ill safety.^'^ Thus, one wlio has turned sufficiently to allow an approaching automobile one-hall* of the road is not by his failure to pass over to the untraveled part of the highway, guilty of contrilmtory negligence.^^ Wlien an auto- mobile coming at a dangerous speed attempts to pass a wagon from behind, the driver of the wagon is not guilty of con- tributory negligence if he has not sufficient time to turn out.^ To charge one with contributory negligence in failing to turn towards the right so as to permit a vehicle in the rear to pass, it must be shown that the road was sufficiently wide to enable a safe passage, and also that the driver of the forward vehicle knew or should have known the intention of the rear driver to pass.^^ Sec. 406. Contributory neg"lig"ence — absence of statutory lights. The failure of a traveler to have a light fastened to his vehicle, when such a light is not imperative by reason of statute or municipal ordinance, is not negligence per se.®" But, when a light is required by statutory or municipal regu- lation, a different question is presented; and, if the omission of duty is one of the contributing causes to a collision with another vehicle, its operator may be charged with negligence.^ 56. Savoy v. McLeod, 111 Me. 234, such ;is to make it negligence to fail to 88 Atl. 721, 48 L. R. A. (N. S.) 971. warn other travelers of the obstruc- 57. Traeger v. Wasson, 163 111. App. tion tluis occasioned. But whether such 572. failure can be said to be negligence 58. Pens v. Kreitzer, 98 Kaus. 759, must, of necessity, depend upon the cir- 160 Pac. 200. cumstances. " Roper v. Groenspon (Mo. 59. Dunkelbeck v. Meyer, 140 Minn. App.). 192 S. W. 149, L. R. A. 1918 i>. 283, 167 N. W. 1034. 126. And see sections 344-348 as to 60. Decou V. Dexheimer, — N. J. lights. L. — , 73 Atl. 49. See also Harding v. 61. Colorado. — Martin v. Carruthera, Cavanaugh, 91 Misc. (N. Y.) 511, 155 195 Pac. 105. N. Y. Suppl. 374. "Generally speak- Connecticut. — Hale v. Rernikoff, 111 ing, at common law, the driver of a .\tl. 907. wagon upon a highway at night is un- Iowa.— Topper v. Maple, 181 Iowa, der no duty to carry a light to warn 786, 165 N. W. 28. others of the presence of his vehicle or Missouri. — Roper v. Grcenapon, 273 its load. If he stops in the highway, Mo. 288, 198 S. W. 1107; Roper t. the circumstances may doubtless be Greenspon (Mo. App.), 210 S. W. 923. 476 The Law of Automobiles. The requirement of a light is i'or the protection, not only of the immediate vehicle, but also of other vehicles with whicK it might come into collision.^^ Qf course, the absence of a light does not justify the driver of another vehicle in running down the plaintiff's conveyance.*^ And, if the absence of the light is not a proximate cause of the collision, the disobedience of the regulation is not material and the plaintiff will not necessarily fail in his action.*' If the defendant should have seen the plaintiff's vehicle, although it was not lighted, the absence of the light is not the proximate cause of the colli- sion." Sec. 407. Contributory negligence — excessive speed. Contributory negligence on the part of the driver of a vehicle coming into collision with another, may be based on the excessive speed of the plaintiff's convey ance.**^ And, especially is this true when the proper speed is prescribed by statute or municipal ordinance and such regulation is violated. It may be considered prima facie negligence or negligence per se for the driver of an automobile to exceed the speed limit, and if the speed is the proximate cause of a collision with another vehicle, such driver will not be permitted to recover for his injuries.*^ New YorA;.— Martin v. Herzog, 176 64. Colorado. -Martin v. Caruthers, N. Y. App. Div. 614, 163 N. Y. Suppl. 195 Pac. 105.. 189, affirmed 228 N. Y. 164, 126 N. E. Illinois.— Graham v. Hagmann, 270 8I4'; Martin v. Herzog, 228 N. Y. 164. 111. 252, 110 N. E. 337, affirming 189 126 N. E. 814. IH- App. 631 ; Culver v. Harris, 211 111. O;iio__0hesrown v. Bevier, 128 N. K. App. 474. 94 Mi'Ssouri. — Eoper v. Greenspon (Mo. ffhode Island.— 3. Samuels & Bro. v. App.), 192 S. W. 149. Rhode Island Co.. 40 R. T. 232. 100 Atl. 0/iio.— Chesrown v. Bevier, 128 N. E. 402. ^4. Wisconsin. — ^Yahnko v. Tanor. 168 Pennsylvania. — Hardie v. Barrett, Wis. 512, 170 N. W. 722. 2-.7 Pa. 42, 101 Atl. 75. 62. Martin v. Herzog, 176 N. Y. App. 65. Ireson v. Cunningham, 90 N. J. Div. 614. 163 N. Y. Suppl. 189, af- T-. 960, 101 Atl. 49. See also Kopper /irmed, 228 N. Y. 164, 126 N. E. 814. v. Bernhardt, 91 N. J. L. 697. 103 Atl. 63. Decou v. Dexheimer (N. J. T..), 186. 73 Atl. 49. See also Kopper v. Bern 66. See sections 303-325; Surneian r. hardt (N. J. L.), 103 Atl. 186. Simmons fR. I.>. 107 Atl. 229. Collisions With Other Vehicles. 477 Sec. 408. Contributory neglig^ence — passenger in dangerous position. Where a woman in an automobile, for the purpose of avoid- ing a collision with an approaching truck, reached out her hand to motion to the driver to stop, it was held that her act was not one which rendered her guilty of contril)utory negli- gence so as to preclude a recovery for injury to her hand struck by the truck.'"'^ And, where the owner of a passenger automobile truck stood on a step at the rear thereof when the truck collided with an automobile, it was held that such owner was not necessarily guilty of contributory negligence in taking such a position.^^ Similarly, the owner of an auto- mobile is not necessarily guilty of negligence in taking a posi- tion on the floor between the front seat and the wind shield with his feet on the running board.'^^ While in most juris- dictions the negligence of the driver of an automobile is not imputed to a passenger therein,'^ yet such passenger is bound to exercise reasonable care. Contributory negligence may be charged against him by reason of the fact that he continues as a passenger when he knows that the driver is intoxicated.^- Sec. 409. Contributory negligence — reliance on obedience of law of road by other vehicles. A traveler is not necessarily guilty of contributory negli- gence in assuming that other travelers will obey the law of the road, where there is nothing to indicate an intention to violate it.''^ When one is driving a vehicle according to the rule of the road as declared by statute or ordinance greater vigilance 67. Barton v. Faeth, 193 Mo. Ap}). 148 Pac 927. 402, 186 S. W. 52; Noot v. Hunter, 10') 73. Ray v. Brannan, 196 Ala. 113, 72 Wash. 343, 186 Pac. 851. So. 16; Moreno v. Los Angeles Transfer 68. Withey v. Fowler, 164 Iowa, 377. Co. (Cal. App.), 186 Pac. 800; Kilroy 145 N. W. 823. V. Justrite Mfg. Co., 209 111. App. 499 69. Moore v. Hart, 171 Ky. 725, 188 Columbia Taxicab Co. v. RoemmicI S. W. 861. (Mo. App.), 208 S. W. 859; Presson v 70. McClung V. Pennsylvania Taxi- Parker (Mo. App.), 224 S. W. 1009 meter Cab Co., 252 Pa. St. 478, 97 Atl. Jacobs v. Ridiard Carvel Co.. 156 N 694. Y. Suppl. 766; Stubbs v. Molberget, 71. Section 679. 108 Wash. 89, 182 Pac. 936, 6 A. L. B. 72. Lynn v. Goodwin, 170 Cal. 112, 318. 478 The Law of Automobiles. . is imposed on the drivers of other vehicles than upon the driver of the vehicle proceeding properly.''* Thus, where tw^o travelers have equal rights at a street intersection, the one first at the crossing is generally entitled to the right of way, and he may proceed to exercise his right of way though he sees the other vehicle approaching, provided the other is not so close that a collision may naturally be anticipated.'^^ And, where the right of way is given by municipal ordinance to the travelers along one of the streets in preference to those along the cross street, the privileged traveler is entitled to assume that drivers on cross streets will respect his priority, at least until he observes to the contrary.''^ So, too, one approaching another conveyance from the rear has a right to assume that the forward vehicle will be directed to the right-hand side of the road so as to permit the rear one to pass, until it becomes obvious that no effort will be made to do so or the danger of a collision is imminent.''^ The driver of a vehicle may assume, when another vehicle is approaching in accordance with the law of the road, that it will so continue.''^ A driver who is obeying the law of the road, is not required to be constantly on the alert to see if an approaching vehicle which is upon the proper side, will violate the rule, there being no obstacle or cause to lead a person in the exercise of reasonable care to anticipate that such a course mil be pursued.''^ . A^Hien, under a regulation authorizing the act, a driver gives a signal that he intends to turn a corner or make some other turn, and he suffers a collision with another vehicle as he is making the turn, his contributory negligence may be a question for the 74. Shilliam v. Newman, 94 Wash. Noet. v. Hunter, 109 Wash. 343, 186 637, 162 Pac. 977. Pac. 851. 75. Carbaugh v. White Bus Line 77. Cook v. Standard Oil Co., 15 Ala. (Cal. App.), 195 Pac. 1066; Barrett v. App. 448, 73 So. 763. Alamito Dairy Co. (Neb.), 181 N. W. 78. Elgin Dairy Co. v. Shephard, 183 550; Rabinowitz v. Hawthorne, 89 N. Ind. 466, 108 N. E. 234. J. L. 308, 98 Atl. 315; Brown v. 79. Tsehirley v. Lambert, 70 Wash. Chambers, 65 Pa. Super. Ct. 373. And 72, 126 Pac. 80; Stubbs v. Molberget, eee section 260. 108 Wash. 89, 182 Pac. 936, 6 A. L. R. 7G. Ray v. Brannan, 196 Ala. 113, 318. See also Trout Livery Co. v. 72 So. 16; Carbaugh v. White Bus Line People's Gas, Light & Coke Co.. 168 (Cal. App.), 195 Pac. 1066; Freeman 111. App. 56. V, Green (Mo. App.), 186 S. W. 1166; Collisions With Other Vehicles. 479 jury.^ When the driver of one vehicle observes that the driver of another is not obeying the law of the road, he cannot proceed regardless, for his right to assume the obedience to the law of road ceases,^^ Thus, when he sees that another vehicle is unable to turn out because of a rut in the road, he should stop or take other steps to avoid a collision.*^ But he may until the vehicles are reasonably close together assume that the one on the wrong side will turn to the right side to permit the passage.^^ And, although one may rely on the obedience of the law of road by others, he is nevertheless required to exercise reasonable care for his safety. Mere reliance will not always suffice to establish due care on his part.^ It is a question for the jury whether one injured assumed that the driver of an automobile would act in accord- ance with the law of the road.^ Sec. 410. Contributory negligence — acts in emergency. When one is suddenly placed in a dangerous position by the negligence of another, the law recognizes that he may not exercise the judgment that he would under other circum- stances, and his conduct is not so closely scrutinized.^ The rule is that where one without his own fault is, through the negligence of another, put in such apparent peril as to cause loss of self-possession, and as a natural result thereof he, in attempting to escape, puts himself and property in a more dangerous position, this is not in law contributory negligence that will prevent him recovering for the injury.^ Thus, where 80. Daly v. Case, 88 N. J. L. 295, 95 85. Tooker v. Perkins, 86 Wn»h. 567. Atl. 973. See also Frank C. Weber C(i. 150 Pac. 1138. V. Stevenson Grocery Co., 194 III. App. 86. See Collins v. Marsh, 176 CaL 432. 639, 169 Pac. 389 ; Rhodes v. Firestone 81. Dirks v. Tonne, 183 Iowa, 403. Tire & Rubber Co. (Cal. App.), 197 167 N. W. 103. Pac. 392; Mayer v. Mellette, 65 Ind. 82. Dirks v. Tonne, 183 Iowa, 403, App. 54, 114 N. E. 241; Brafjdon v. 167 N. W. 103. Kellogg (Me.), 105 Atl. 433; Fran.sf^n 83. Shaw V. Wilcox (Mo. App.). 224 v. Talk Paper Co., 135 Minn. 284, 160 S. W. 58; John v. Pierce (Wis.). 178 N. W. 789; Dixon v. Boeving (Mo. N. W. 297. . App.). 208 S. W. 279. 84. Ray v. Brannan, 196 Ala. 113, 72 87. Shupe v. Rodolph (Cal.), 197 So. 16. Puc. 57; Book v. Aschenbrenner. 165 480 The Law of Automobiles. the primary cause of an automobile collision is the defendant's violation of the rules of the road by running on the wrong side of the road when approaching an intersection and cutting the corner at the intersection, he cannot evade the conse- quences of his negligence by setting up that the plaintiff, who was originally on the proper side of the cross street, had swerved in the emergency to the wrong side in an attempt to avoid the collision.^ And a jury may be justified in finding that the driver, when confronted v/ith a collision, is not negli- gent in accelerating the speed of the machine, though tempor- arily the speed is excessive.^^ But the driver of an automobile will not be excused from negligence because of the fact that he became ''rattled," it appearing that the collision occurred outside of the traveled portion of the highway and that the circmnstances were not such as to justify his conduct on the ground of a sudden emergency.^" The driver of an automobile will not be charged with negligence where the collision is the result of conduct of a similar character on the part of the person injured. So where the fall of a horse was caused by the act of its driver, in the desire to avoid a collision, where his fear was unfounded, it was held that the defendant was not liable.®^ Sec. 411. Contributory negligence — last clear chance. Under the last clear chance, or similar doctrine, which has a considerable application in some States, one who has negli- gently exposed himself to injury is not precluded from recovering, if the defendant discovered the peril in sufficient time to have avoided the injury and negligently failed to do so.^^ This doctrine may be applied in case of a collision of a 111. App. 23; Stack v. General Baking 72, 126 Pac. 80. Co. (Mo.), 223 S. W. 89; Henderson v. 91. Carter v. Wilker (Tex. Civ. Dimond (E. I.), 110 Atl. 388. App.), 165 S. W. 483. 88. Bain v. Fuller, 29 D. L. R. 92. Howard v. Worthington (Cal. (Canada) 113. App.) 195 Pac. 709; Shaw v. Wilcox 89. Mayer v. Mellette, 65 Ind. App. (Mo. App.), 224 S. W. 58; King v. 54, 114 N. E. 241; Paul v. Pfefferkorn Brenham Auto Co. (Tex. Civ. App.), (Wis.), 178 N. W. 247. 145 S. W. 278. See also Preason v. 90. Tschirley v. Lambert, 70 Wash, Parker (Mo. App.), 224 S. W. 1009. Collisions With Other Vehicles. 481 motor vehicle with another convey ance.^^ As was said in one case,^* ** A man does not become an outlaw, with the brand of Cain upon him, and whom * everyone that findeth' him may slay, because he disregards his safety and puts himself in the way of danger. The persons and lives of human beings are held in too high esteem by the laws of every civilized com- munity to permit automobiles and other vehicles to be reck- lessly and wilfully run over them and mutilate or destroy them, and then to permit the guilty parties to escape punish- ment by the plea that the victim got in the way of the vehicle." And in a few States, the rule is extended so as to bring the doctrine into play, not only when the defendant discovered the peril of the plaintiff in sufficient time to avoid the injury, but also when he should in the exercise of due care, have done so.^^ In other States, the rule is not so extended.^*^ In order to apply the doctrine it should appear that the defendant had an opportunity to avoid the accident.^' Sec. 412. Pleading. In an action by a person injured by a collision between his vehicle and an automobile, while he need not set forth in his pleading a detailed and minute statement of the circumstances of the cause of action, yet he must set forth the facts upon which he bases his action with a particularity and certainty that will reasonably inform the defendant what he proposes to prove at the trial, in order that the defendant may have a fair ojjportunity to meet and controvert these facts in defense. The rules of pleading require that the time, place and circum- stances of the matter in action, so far as relied on and within the knowledge of the party, must be specified with a fullness and fairness that will reasonably apprise the opposing party of what he is required to meet. So while an averment of the 98. Schneider v. Hawks (Mo. App.), 96. Collins v. Marsh, 176 Cal. 639, 211 S. W. 681; King v. Brenham Auto 169 Pac. 389. See also Blackburn v. Co. (Tex. Civ. App.), 145 S. W. 278. Marple (Cal. App.), 184 Pac. 873. 94. King V. Brenham Auto Co. (Tex. 97. Lawrence v. Goodwill (Cal. Civ. App.), 145 S. W. 278. App.), 186 Pac. 781 ; Carbaugh v. White 95. Whitman v. Collon, 196 Mich. Bus Line CCal. App.), 195 Pac. 1066. 540, 162 N, W. 950. 31 482 The Law of Automobiles. fact of a collision, without stating the particular act of negli- gence that caused it, may be sufficient in those exceptional cases where by reason of the relation of the parties the law places upon one a high duty to prevent injury to another, or where the act itself bespeaks the negligence as its cause, it cannot be held that from the mere statement of the fact of collision upon a highway, between wayfarers with equal rights and duties, the law will infer the collision to have been the result of negligence, or the negligence to have been that of the defendant. In such cases the fact of collision is not the cause of action, but the acts of negligence that caused the fact of collision constitute the cause of action. It therefore devolves upon the plaintiff, in holding the defendant accountable for the fact of collision, which may have been the result of in- evitable accident or of one of many negligent acts of either party, to disclose to the defendant the cause of the collision and to state the acts that contributed to its occurrence.^^ A 98. Campbell v. Walker, 1 Boyce's Del. 580, 76 Atl. 475, holding that the expression "so negligently and care- lessly operated and ran his automobile ' ' states no fact or circumstance that fastens upon the defendant the negli- gence which must be shown to entitle the plaintiff to recover and is subject to the objections that it is a statement of a conclusion of fact, arising from acts and circumstances not set forth in the declaration and that it is a state- ment so general as to admit almost any proof to sustain it. Sufficiency and construction of com- plaint. — See also the following cases: Alabama. — Dozier v. Woods, 190 Ala. 279, 67 So. 283; MuUins v. Lemley (Ala.), 88 So. 831; Taxieab Co. v. Grant, 3 Ala. App. 393, 57 So. 141; Overton v. Bush, 2 Ala. App. 623, 56 So. 852. California. — Tognazzini v. Freeman, 18 Cal. App. 468, 123 Pac. 540; Mathes V. Aggeler & Musser Seed Co., 179 Cal. 697, 178 Pac. 713; Saylor v. Taylor (Cal. App.), 183 Pac. 843; Wiley v. Cole (Cal. App.), 199 Pac. 550. Georgia. — Fuller v. Inman, 10 Ga. App. 680, 74 S. E. 287. Illinois. — O'Brien v. Crawford, 208 m. App. 485. Indiana. — National Motor Vehicle Co. V. Kellum, 184 Ind. 457, 109 N. E, 196; Picken v. Miller, 59 Ind. App. 115, 108 N. E. 968 ; Meyers v. Winona Inter- urban Ey. Co., 58 Ind. App. 516, 106 N. E. 377. /owe— Willis v. Schertz, 175 N. W. 321. Kansas. — Giles v. Ternes, 93 Kan. 140, 143 Pac. 491. Minnesota. — Fairchild v. Fleming, 125 Minn. 431, 147 N. W. 434. Missouri. — Conley v. Lafayette Motor Car Co. (Mo. App.), 221 S. W. 165. New York. — Hicks v. Serrano, 74 Misc. 274, 133 N. Y. Suppl. 1102, af- firmed 149 App. Div. 926, 133 N. Y. Suppl. 1126. Washington.— Cloherty v. Griffiths, 82 Wash. 634, 144 Pac. 912. Particulars need not be given. — See Lum Yet v. Hugill, 1 Dom. Law Eep. (Canada) 897. Collisions With Other Vehicles. 483 count of a declaration alleging the fact of a collision of the defendant's automobile with the vehicle in which the plaintiff was riding and averring that the collision and consequent injury were due to the negligence of the defendant ''in that the defendant is blind in one of his eyes and of imperfect vision, and is not on account of said blindness and imperfec- tion of vision competent to run and operate an automobile on the public roads with reasonable safety to other users of the said public roads, and plaintiff alleges that on account of the premises it was negligence for the defendant to operate and run said automobile then and there, and that by reason of said blindness and imperfect vision of the defendant the said auto- mobile collided with and struck the said vehicle," is held to be a sufficient allegation and not demurrable.^^ It was, however, said that as incompetence is the one ingredient in the negli- gence charged, the plaintiff must show at the trial, in order to succeed upon such count, that the imperfection of the defend- ant's vision extended to the point of rendering him incom- petent to safely operate the automobile, as otherwise his vision, though shown to be to a lesser extent imperfect, could not have entered into the cause of collision.^ Where a plain- tiff alleges the negligent running of an automobile as the cause of a collision with a vehicle and the negligence alleged was careless guiding of the car and running it at an excessive rate of speed and the defendant pleaded that the collision was brought about by circumstances beyond his control, in that the steering gear of his automobile, just before he reached the spot where it struck plaintiff's buggy, became choked in such a manner that he could not steer the same to the right to avoid a collision, such plea was held to be in the nature of a plea in confession and avoidance, which required the defendant, in case the plaintiff proved prima facie either of the grounds of negligence averred as the proximate cause of the alleged in- juries, not only to show that the steering gear of the auto- mobile had suddenly become so deranged that he could not prevent the collision, but that such derangement, and not the 99. Campbell v. Walker, 1 Boyce 1. Per WooUey, J. (Del.) 580, 76 Atl. 475. 484 The Law of Automobiijss. grounds of negligence relied on by the plaintiff, was the efficient and proximate cause of the collision and of the con- sequent injuries.^ A complaint alleging that defendant did *' negligently, carelessly and recklessly drive said motor car upon said avenue at such unlawful rate of speed, without keep- ing a proper lookout before him and without giving the proper signals of his approach," is not to be construed as alleging negligence as to the rate of speed only, but as alleging in addition thereto negligence, in not keeping the proper lookout and in not giving the proper signals of his approach.^ A complaint alleging that the defendant carelessly and negli- gently drove an automobile at high speed and with great violence against the plaintiff's horses standing in the high- way, whereby they were frightened and ran away and were injured, is not supported by evidence showing that the auto- mobile while under control was moving slowly in the direction of the horses, but did not come in contact with either of them.* But a complaint alleging that the defendant ran into the plain- tiff's vehicle with his automobile is supported whether or not the defendant was driving or was in the automobile.^ The general rule is that when reliance is placed on particular acts of negligence, the proofs must be confined to those acts.^ Sec. 413. Negligence is generally a question for the jury. When two vehicles collide on the public highway with dam- age to one or both, the question of the negligence or contribu- tory negligence of the drivers is generally for the jury.'' • 2. Posener v. Harvey (Tex. Civ. 3. Diamond v. Cowles, 174 Fed. 571, App.), 125 S. W. 356. 98 C. 0. A. 417. An order for particulars was held 4. Trout Brook Co. v. Hartford Elec. properly refused in an action to re- Co., 77 Conn. 338, 59 Atl. 405. cover damages for death alleged to be 5. Morrison v. Clarke, 196 Ala. 670, caused by the negligent operation of an 72 So. 305; Shepard v. Wood, 116 N. 'automobile, where the statement of Y. App. Div. 861, 102 N. Y. Suppl. 306. claim showed some particulars of negli- 6. Hunter v. Quaintance (Colo.), 168 gence. Cuperman v. Ashdown (Mani- PiEtc. 918. ' toba), 16 West. L. R. 687. 7. ^rfcOTWO*.— Bennett v. Snyder, 227 Meeting allegations as to proceeding S. W. 402. at slow rate of speed. — Abrahamson v. Alabama. — Wyker v. Texas Co., 201 Yuile, 7 E. P. Q. 61. Ala. 585, 79 So. 7. Collisions With Other Vehicles. 485 Especially is this so, when the evidence as is usually the case, Arkansas. — Carter v. Brown, 136 Ark. 23, 206 8. W. 71. California. — Oberholzer v. Hubbell (Cal. App.), 171 Pac. 436; Diamond v. Weyerhaeuser, 178 Cal. 540, 174 Pac. 38. Newman v. Overholtzer (Cal.), 190 Pac. 175; Saylor v. Taylor (Cal. App.), 183 Pac. 843; Blackburn v. Marple (Cal. App,). 184 Pac. 873; Blackburn V. Marple (Cal. App.), 184 Pac. 875; Maxwell v. Western Auto Stage Co. (Cal. App.), 189 Pac. 710; Blackwell V. American Film Co. (Cal. App.), 102 Pac. 189; Sinclair v. Pioneer Track Co. (Cal. App.), 196 Pac. 281; Rhodes V. Firestone Tire & Rubber Co. (Cal. App.), 197 Pac. 392. "If there was any substantial evidence tending to show that the collision was caused by negligence on the part of defendant's driver, the action of the court in di- recting a verdict was, of course, er- roneous. The existence or nonexistence of negligence is ordinarily a question of fact to be determined by a jury. On the other hand, the court may withdraw the case from the jurj' and direct a verdict where the evidence is undis- puted, *or is of such conclusive char- acter that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict re turned in opposition to it.' " Diamond V. Weyerhaeuser, 178 Cal. 540, 174 Pac. 38. Connecticut — Neuman v. Apt«r. 112 Atl. 350. Georgia. — Rouche v. McCloudy, 19 Ga. App. 558. 91 8. E. 999; Pedcock v. West (Ga. App.), 102 8. E. 360. Illinois. — Page v. Brink's Chicago City Express Co., 192 111. App. 389; Hallissey v. Rothschild & Co., 203 Dl. App. 283: Walker v. Hilland. 205 111. App. 243 : Moyer v. Shaw Livery Co., 205 111. App. 273. Iowa. — Baker v. Zimmerman, 179 Iowa, 272, 161 N. W. 479; Barnes v. Barnett, 184 Iowa 936, 169 N. W. 365; Wag-ner v. Kloster, 175 N. W. 840; Ix)nnecker v. Van Patten, 179 N. W 432; MoSpadden v. Axmear, 181 N. W. 4. Kentucky.— S]&te v. Witt, 188 Ky. 133, 221 8. W. 217. Maine. — Lyons v. Jordan, 117 Me. 117, 102 Atl. 976; Shepherd v. Marston. 109 Atl. 387. Maryland. — American Express Co. v. Torry, 126 Md. 254, 04 Atl. 1026; Wingert v. Cohill, 110 Atl. 857; Bucket V. White, 111 Atl. 777. Massachusetts. — Massie v. Barker. 224 Mass. 420, 113 N. E. 199; Walters V. Davis. 129 N. E. 443. Michigam.. — Jolman v. Alberts, 192 Mich. 25, 158 N. W. 170; Eberle Brew- ing Co. V. Briscoe Motor Co., 194 Mich. 140. 160 N. W. 440; Whitman v. Collin. 196 Mich. 540, 162 N. W. 950; Hopkins v. Tripp. 198 Mich. 94, 164 N. W. 395: Harris v. Bernstein, 204 Mich. 685, 171 X. W. 521; Simmons v. Peterson, 207 Mich. 508, 174 N. W. 536. Minnesota. — Dunkelheck v. Meyer, 140 Minn. 283, 167 N. W. 1034; Yonng V. Avery Co., 141 Minn. 483. 170 N. W. 693. Missotiri. — Brick ell v. Williams, 180 Mo. App. 572, 167 S. W. 607: Warring ton V. Byrd CMo. App.), 181 S. W 1079 ; Calhoun v. Mining Co.. 202 Mo App. 564. 209 S. W. 318; Pabst Brew ery Co. v. Laetner (Mo. App.), 208 8 W. 487; Shaw v. Wilcox (Mo. App.^ 224 8. W. 58; Alyea v. Jnnge Baking Co. (Mo. App.). 230 8. W. 341. Nebraska. — Lord v. Roberts. 102 Neb. 49, 165 N. W. 892. New Jersey. — Rabinowitr v. Haw- thorne. 89 N. .T. L. 30S. 98 .\tl. 315. New York. — Milliman v. Applet on. 139 App. Div. 738. 124 N. Y. Suppl. 482: Pratt v. Burns. 189 App. Div. 33, 177 N. Y. Supp. 817; Harding v. Cava- naugh, 91 Misc. (N. Y.) 511, 155 N. Y. 486 The Law of Automobiues. is conflicting.^ And when the evidence is such that reason- able minds might reach different conclusions, negligence becomes a question of fact.^ But, where the plaintiff's testi- mony is entirely irreconcilable with the facts surrounding the accident, such as the position of the automobiles there- after, a verdict for the plaintiff may be deemed as founded on a mistake, and may be set aside.^'* Suppl. 374; Blum V. Qerardi, 111 Misc. 617, 182 N. Y. Suppl. 297. Pennsylvania. — Bew v. John Daley Inc., 260 Pa. 418, 103 Atl. 832; Lan- caster V. Reese, 260 Pa. 390, 103 Atl. 891; Dickler v. Pullman Taxi Service Co., 66 Pitts. Leg. Joum. 93 ; Sebastine V. Haney, 68 Pitts. Leg. Journ. 100; Mechling v. Harvey, 68 Pitts. Leg. Journ. (Pa.) 149. Bhode Island. — Rogers v. Mann, 70 Atl. 1057; Jacobson v. O'Dette, 108 Atl. 653. Texas. — Melton v. Manning (Civ. App.), 216 S. W. 488. Utah. — Boeddcher v. Frank, 48 Utah, 363, 159 Pac. 634. Vermont. — Bianchi v. Millar, 111 Atl. 524. Washington. — ^Luger v. Windell, 187 Pac. 407; Kane v. Nakmoto, 194 Pac. .381; McCreedy v, Fournier, 194 Pac. 398; Boeing V. Gottstein Furniture Co., 196 Pac. 575. Wisconsin. — Paul v. Pfefferkorn, 178 N. W. 247; Wagner v. Larsen, 182 N. W. 336. 8. Brown v. New Haven Taxicab Co. (Conn.), 105 Atl. 706; Forsythe v. Kil- 1am, 193 HI. App. 534; Lyons v. Jordan (Me.), 102 Atl. 976; Savage v. Boyce, 53 Mont. 470, 164 Pac. 887; Ireson v. Cunningham, 90 N. J. L. 960, 101 Atl. 49; Whetstone v. Jensen, 96 Oreg. 576, 189 Pac. 983. 9. Calhoun v. Miniiig Co. (Mo. App.), 209 S. W. 318; Shortle v. Sheill (Wis.), 178 N. W. 304. 10. Ladham v. Young, 145 N. Y. Suppl. 1089. Collision With Pedestrian. 487 CHAPTER XVII. COLLISION WITH PEDESTRIAN. Section 414. General duties of foot travelers and drivers of motor vehicles. 415. Proximate cause. 416. Unavoidable accident. 417. Persons under disability. 418. Children in street — in general. 419. Children in street — child suddenly coming in front of or near machine. 420. Children in street — climbing on machine. 421. Confused pedestrian. 422. Workmen in street. 423. Driving past street car — in general. 424. Driving past street car — moving street car. 425. Driving past street car — statutory and municipal requirements. 426. Driving past street car — assisting passenger on car. 427. Driving past street car — auto on wroing side of street. 428. Driving past street car — liability of street railway company. 429. Driving on v?alk or place reserved for pedestrians — in general. 430. Driving on walk or place reserved for pedestrians — sidewalk. 431. Driving on walk or place reserved for pedestrians — safety zone. 432. Passing pedestrian walking along road. 433. Motor vehicle on wrong side of street. 434. Turning corner. 435. At street crossing — in general. 436. At street crossing — unfavorable weather conditions. 437. At street crossing — view obstructed. 438. Lookout for pedestrians. 439. Avoidance of person standing in street. 440. Sudden turning or backing without warning. 441. Speed and control of automobile — control in general. 442. Speed and control of automobile — stopping. 443. Speed and control of automobile — speed. 444. Speed and control of automobile — speed prescribed by statute or ordinance. 445. Speed and control of automobile — auto turning corner. 446. Vehicle left standing in street. 447. Lights. 448. Signal of approach. 449. Towing disabled vehicle. 450. Pleading. 451. Damages. 452. Function of jury. 488 The Law of Automobiles. Sec. 414. General duties of foot travelers and drivers of motor vehicles. In the absence of statutory or municipal regulation affect- ing the question, the right of a pedestrian is neither superior nor inferior to the rights of the operator of a motor vehicle. They have equal rights in the street.^ The driver of the 1. United States. — Lane v. Sargent, 217 Fed. 237. Delaware. — Brown v. City of Wil- mington, 4 Boyce, 492, 90 Atl. 44 ; Wol- laston V. Stiltz, 114 Atl. 198. Illinois. — Crandall v. Krause, 165 111. App. 15; Wortman v. Trott, 202 111. App. 528. Indiana. — Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457. Kansas. — Eames v. Clark, 177 Pac. 540. Kentucky. — Bruce 's Adm'r v. Calla- han, 185 Ky. 1, 213 S. W. 557. Massachvsetts. — Emery v. Miller, 231 Mass. 243, 120 N. E. 654. Michigan. — Tuttle v. Briscoe Mfg. Co., 190 Mich. 22, 155 N. W. 724. Missouri. — Frankel v. Hudson, 271 Mo. 495, 196 S. W. 1121; Reynolds v. Kenyon (Mo.), 222 S. W. 476; Carra- dine v. Ford, 195 Mo. App. 684, 187 S. W. 285; Young v. Bacon (Mo. App.), 183 S. W. 1079; Dignum v. Weaver (Mo. App.), 204 S. W. 566; Meenach V. Crawford, 187 S. W. 879; MoflFatt v. Link (Mo. App.), 229 S. W. 836. New York. — Seaman v. Mott, 127 N. Y. App. Div. 18, 110 N. Y. Suppl. 1040; Miller v. New York Taxicab Co., 120 N. Y. Suppl. 899. Pennsylvania. — Schoepp v. Geret}', 263 Pa. St. 538, 107 Atl. 317; Twinn v. Noble (Pa.), 113 Atl. 686. Vermont. — Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669. Washi/ngton. — Locke v. Greene, 100 Wash. 397, 171 Pac. 245. "It is true, as we have said, that in a general .sense the pedestrian and the Butomobilist have equal rights in streets that are set apart for the use of vehi- cles as well as the accommodation of foot travelers, and each has rights that the other is bound to respect, and it is also true that the automobile must use only the carriage way of the street, while the pedestrian, except at street crossings, uses generally only the side- walk. But the pedestrian, in the use of the street at a regular crossing, nas the same right to its use as vehicles, and is under no legal duty to give way to automobiles. The automobile can go around him as well as he can go around it. It can get out of the way of the pedestrian about as easily and quickly as he can get out of its way, although it is usually the case, and rightfully so, that the pedestrian endeavors to keep out of the way of vehicles at street crossings ; but, if he does not, — this does not excuse the driver of that vehi- cle who runs him down, unless it be that the driver was free from negligence, and the pedestrian by his own want of care was to blame for the collision." Weidner v. Otter, 171 Ky. 167, 188 S. W. 335. Prejudice against automobiles. — In Gregory v. Slaughter, 124 Ky. 345. 8 L. E. A. (N. S.) 1228, 30 Ky. L. Rep. 500, 99 S. W. 247, which holds an auto- mobilist liable in damages for collid- ing with a pedestrian on a highway, the court says in the opinion : ' ' The appellant complains in his brief that he is the victim of public prejudice against automobiles. This may be true, and, if so, that prejudice is based upon the carelessness of a large number of automobilists of a character similar to Collision With Pedestrian. 489 machine must exercise reasonable care to avoid injury to per- sons lawfully in the street ;2 and such persons are bound to that of which this record shows appel- lant was guilty. The owners of auto- mobiles have the same right on the pub- lic highways as the owners of other vehicles; but when ono drives so dan- gerous a machine through the puhli<' thoroughfares it is incumbent upon him to exercise corresponding care that the safety of the traveling public is not endangered thereby. When owners of automobiles learn that it is confidently believed that whatever prejudice may now exist against them in the public mind will entirely disappear.'' 2. United States. — Bishoj) v. Wight. 221 Fed. 391, 137 C. C. 200; Litne v. Sargent, 217 Fed. 237. Alabama. — Dozier v. Woods, 190 Ala. 279, 67 So. 283; White Swan Laundry Co. V. Wehran, 202 Ala. 87, 79 So. 479. Arkansas. — Texas Motor, Co. v. Bnf fington, 134 Ark. 320, 203 S. W. 1013. California. — Park v. Orbrson (Cal. App.), 184 Pac. 428; Lampton v. Davis Standard Bread Co. CCal. App.), 191 Pac. 710. Delaware. — Brown v. City of Wil mington, 4 Boyce, 492, 90 Atl. 44. Illinois. — Devine v. Brunswick-Balke Collender Co., 270 HI. 504, 110 N. E 780; Kessler v. Washburn, 157 III. App 532; Goldblatt v. Brocklebank, 166 III App. 315; Miller v. p'.versole, 184 111 App. 362. Indiana. — Wellington v. Reynolds. 177 Ind. 49, 97 N. E. 155; Harker v. Gruhl, 62 Ind. App. 177, 111 N. K. 457 ; Gardner v. Vance, 63 Ind. App. 27, 113 N. E. 1006. Iowa. — Brown v. Des Moines Bottl- ing Works, 174 Iowa, 715, 156 N. W. 829; Wine v. Jones, 183 Iowa, 1166, 162 N. W. 196, 168 N. W. 318. Kentucky. — Gregory v. Slaughter. 124 Ky. 345, 99 S. W. 247. 30 Ky. L. Rep. 500, 8 L. R. A. (N. S.> 1228; Forgy v. Rutledge, 167 Ky. 182, 180 8. W. 90; Weidner v. Otter, 171 Ky. 167, 188 S. W. 335. Michigan. — Bounia v. Dubois, 169 Mich. 422, 135 N. W. 322; Patterson V. Wagner, 204 Mich. 261, 171 N. W. .'556. Missouri. — Haacks v. Davis, 166 Mo. .App. 249, 148 S. W. 450; Canadine v. Ford, 195 Mo. App. 684, 187 S. W. 285 ; Edraonston v. Barrock (Mo. App.), 230 S. W. 6.50. \( ir Jersey. — Pool v. Brown. 89 N. .1. L. 314, 98 Atl. 262. New York. — Brewster v. Barker, 129 N. Y. App. Div. 724, 113 N. Y. Suppl. 1026; Sommerman v. Seal, 176 App. Div. 598, 163 N. Y. Suppl. 770; Gnecco V. Pederson, 154 N. Y. Suppl. 12. \orth Carolina. — Manley v. Aber nathy, 167 N. C. 220. 83 S. E. 343. Oregon. — Weygandt v. Bartle, 88 Oreg. 310, 171 Pac. 587. Pennsylvania. — Virgilio v. Walker, 2r,4 Pa. 241, 98 Atl. S1.5: Twinn v. Noble (Pa.), 113 Atl. 686. Rhode Island. — Gouin v. Ryder, 38 R. I. 31, 94 Atl. 670; Greenhalch v. Barber, 104 Atl. 769. South Carolina. — King v. HoUiday, 108 S. E. 186. Utah. — Musgrave v. Studebaker Bros. Co. of Utah, 48 Utah, 410. 160 Pac. 117. Vermont. — Aiken v. Metcalf. 90 Vt. 196, 97 Atl. 669. Virginia. — Core v. Wilhelm, 124 Va. 150, 98 S. E. 27. Washington. — 'Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. 519. Oanad might not he reasonable care in 69 So. 137. another." Herald v. Smith (Utah), Greater care. — "An operator of an 190 Pac. 932. See also Qlinco v. Wimer automobile on a public street is not an (W. Va.), 107 S. E. 198. insurer against damages to children or 51. Sections 478-480. other persons. He is only required to 52. Krug v. Walldren Express & Van exercise ordinary care or such care as Co.. 214 111. App. 18; Reynolds v. Ken- an ordinarily prudent person would yon (Mo.), 222 S. W. 476: Henild v. exercise under like dr similar circum- Smith (Utali). 190 Pac. 932; Ratcliff© stances, and. as indicated, tlu- -le^ree v. McDonald, 123 Va. 781. 97 S. K. :?07. 502 The Law of Automobiles. be reasonable on one street would not be in another; even a much less rate might be deemed negligence on the part of one operating the car.^ Even as low a speed as five or six miles an hour may be gross negligence when driving through a crowd of children playing in the street.^* And, independently of statute or municipal regulation affecting the speed of auto- mobiles when passing schoolhouses, it is expected that the driver will proceed at a moderate rate at such places.^ A person who drives so dangerous a machine as an automobile through the principal street of a large city, upon a bright, dry day, and who sees, at a distance of 150 feet in front of him, two boys, ages ten and twelve, respectively, trailing in a soap box wagon behind an ice wagon, should take such pre- cautions in his driving as that, in no event or situation, con- ceivable to an intelligent man, will he run over and kill the boys/^ The questions of negligence and contributory negli- gence are as a general proposition for the jury to decide.^'^ Sec. 419. Children in street — child suddenly comings in front of or near machine. When a motor vehicle is proceeding along at a lawful speed and is obeying all the requirements of the law of the road and all the regulations for the operation of such machine, the driver is not, as a general proposition, liable for injuries re- ceived by a child who darts in front of the machine so sud- denly that its driver cannot stop or otherwise avoid the in- j^j.y 58 j^ jg ^Q j^g remembered that the driver of a motor 63. Savoy v. McLeod, 111 Me. 234, Eversole, 184 111. App. 362. 88 Atl. 721, 48 L. R. A. (N. S.) 971; 56. Albert v. Mimch, 141 La. 686, 75 Haacke v. Davis, 166 Mo. App. 249, So. 513. 148 S. W. 450; Deputy v. Kimmell, 57. Section 487. 73 W. Va. 595, 80 S. E. 919. See also 58. Connecticut.— Hyde v. Huberger, Lauterbach v. State, 132 Tenn. 603, 87 Conn. 704, 87 Atl. 790; Kishalaski 179 S. W. 130. V. Sullivan (Conn.), 108 Atl. 538. "No 54. Haacke v. Davis, 166 Mo. App. evidence was offered from which the 249, 148 S. W. 450. jury could reasonably have found neg- 55. Lampton v. Davis Standard ligent conduct on the defendant's part. Bread Co. (Cal. App.), 191 Pac. 710; There was an entire absence of testi- Tripp v. Taft, 219 Mass. 81, 106 N. E. mony that he was traveling at an ex- 578 ; Heidner v. Germschied, 41 S. Dak. cessive speed, that he did not have Mr 430, 171 N. W. 208. See also Miller v. car \mder suitable control, or that he Collision With Pedestrian. 503 vehicle does not insure other travelers against accident.^' Thus, where the street was clear and the machine was being driven at a sjieed of eighteen miles an hour, and the driver did not see a young child standing behind a telegraph pole, but just as he was abreast of the child it ran out and was struck by the rear fender, it was held that he was not liable for the injuries, the speed at which he was traveling being permitted by statute.^ Similarly, where a truck was stand- ing by the curb with the hub of a wheel over the edge of the curb, the driver is not liable to injuries received by a child of tender years who was playing 'Hag" and ran toward the failed to exercise due care in any re- spect or at any time. There was no testimony to indicate that the plaintiff had left the sidewalk, where he was just before the accident, until the mo- ment before he was hit, or that there was anything in the situation wliich called for special precaution on the de- fendant's part to avoid the accident which were not taken. On the contrary, the evidence indicated strongly that the plaintiff did not leave the walk, or come into a position of danger, or of ap- parent danger, until the defendant's ear was so close to him that no reason- able efforts on its driver's part could have avoided running him down. The case is not one in which the plaintiff merely failed to present, as he was bound to do, evidence pointing to the defendant's negligence contributory to the injury to the plaintiff ; the evidence presented went far to disprove such negligence." Hyde v. Hubinger, 87 Conn. 704, 87 Atl. 790. Iowa. — Bishard v. Engelbnck, 180 Iowa, 1132, 164 N. W. 203. Maine. — Levesque v. Dumont, 116 Me. 25, 99 Atl. 719. Massachusetts. — Lovelt v. Scott, 232 Mass. 541, 122 N. E. 646. Missouri. — Winter v. Van IHarcom, 258 Mo. 418, 167 S. W. 498. New York. — Jordan v. Am. Sight- seeing Coach Co., 129 N. Y. App. Div. 313, 113 N. Y. Suppl. 786; Chiappone V. Grenebaum, 189 App. Div. 579, 178 N. Y. Supp. 854; Meltzer v. Barrett, 193 App. Div. 183, 184 N. Y. Suppl. 241; Brianzi v. Crane Co., 106 App. Div. 58. Oregon.- — Sorsby v. Benninghoven, 82 Orog. 345, 161 Pac. 251. Pennsylvania. — Stahl v. Sol!enberger, 246 Pa. St. 525, 92 Atl. 720; Wetherill v. Showell, Fryer & Co., 264 Pa. St. 449, 107 Atl. 808. "The defendant cannot fairly or reasonably be charged with negligence, in failing to stop his automobile and avoid the accident, un- less it appeared that the boy entered the roadway at a .sufficient distance from the automobile, to permit of its being stopped before the collision oc- curred. If the boy suddenly left the footway, at a place where the driver had no reason to expect him to do so, and ran directly in front of the auto- mobile, the result could hardly have been other than disastrous, even though the machine had been moving at a very reasonable rate." Stahl v. Sollenber- ger, 246 Pa. St. 525, 92 Atl. 720. Washington. — Burlie v. Stephens, l'.»3 Pac. 684. 59. Section 283. 60. Sorsby v. Benninghoven, 82 Oreg. 345, 161 Pac. 251. 504 The Law of Automobiles. truck at the moment it started and was struck by the hub.^ So, too, when it appeared that an automobile was proceeding at a moderate rate on the proper side of the street, that it was a large machine which could have been seen by a boy if he had looked, that the roadway was clear in front of it; that the boy who was interested in catching a ball suddenly ran in front of it from the sidewalk at a distance of from four to twelve feet and that the automobile was stopped so that its wheels skidded and only proceeded five feet beyond the boy's body, it was held that the negligence of the defendant was not shown.®^ This general doctrine necessarily implies that the operator of the machine has been guilty of no pre-existing negligence which contributed to the injury and made it impossible to avoid the accident after seeing the child.^ Thus, if one is running his automobile at a speed in excess of the statutory limit, he cannot escape liability because the child who was in- jured ran in front of the automobile so suddenly that the acci- dent was then unavoidable.^ Moreover, if he sees or should have seen the child soon enough to have avoided an injury, an entirely different situation arises.^ Sec. 420. Children in street — climbing on machine. As a general proposition the duty of the driver of a motor vehicle is to keep a lookout to avoid pedestrians and vehicles which may appear in front of his machine. He is, therefore, not generally required to look out for children who may at- 61. Cantanno v. James A. Stevenson sions cited do not justify its applica- Co., 172 N. Y. App. Div. 252, 158 N. Y. tion in the present case." Suppl. 335, wherein it was said: "The 62. Jordan v. Am. Sight-Seeing Coaeh contention of the learned counsel for Co., 129 N. Y. App. Div. 313, 113 N. the appellant is that the driver should Y. Suppl. 786. have watched until his hub was clear of 63. Osberg v. Cudahy Packing Co., the sidewalk. If the child before the 198 111. App. 551. truck was started had been in such 64. Lauterbach v. State, 132 Tenn. relation to the truck as to show a proba- 603, 179 S. W. 130; Locke v. Greene, bility that its progress would injure 100 Wash. 397, 171 Pac. 245. hira. that duty might arise. But the 65. Yeager v. Gat«ly & Fitzgerald, mere fact that children were playing Inc., 262 Pa. 466, 106 Atl. 76. See near it and might run into it furnishes also Goff v. Clarksburg Dairy Co. (W. no occasion for such rule, and the deci- Va.), 103 S. E. 58. CoLLisTox With Pedestrian. 505 tempt to climb on the side or rear of his vehicle/"* WTiore it appeared that a loaded truck was proceedin.2: at a moderate rate of speed ; that it was making consideralilo noise ; that as the truck approached, a boy ran out in the street, and for about ten feet ran alongside the truck behind the front wheels, then caught hold of it near its center on the right side and hung there a, short time, and then seeming to lose his hold, fell down in front of the rear wheel, which passed over him, it was held that the driver was not negligent." Nor is it the usual duty of a chauffeur to look for trespassers on the far side of his car, though, if he sees a child there, it might be his duty to allow him an opportunity to get off the car ])efore bo starts it.^^ If the driver knows that a child is climbing on the machine, he must not recklessly operate the car in such a way as to cause injury to such child.^^ And, though he has driven the child from the machine, he may be said not to have ful- filled his'duty if he starts the machine wdthout further thought of the child.''*' The fact that his machine is one which is more or less attractive to children and excites their desire to climb thereon, does not necessarilj^ affect the question.''^ Such a child is regarded by the law as a trespasser, toward whom the duty of the driver is fulfilled if he commits no intentional and wilful wrong.'^ The doctrine of the ''Turntable Cases" as to 66. Hebard v. Mabie, 98 111. App. of the children on each block where his 643 ; Smith v. Schoenhof en Brewing business requires him to stop. An auto- Co., 201 HI.- App. 552; Ganilde v. mobile is a legitimate vehicle on the Uncle Sam Oil Co. of Kan., 100 Kans. street, and entitled to stop without ac- 74, 163 Pac. 627. cumulating children upon it. I am not 67. Smith v. Schoenhofen Browing convinced that it is the usual duty of Co., 201 111. App. 552. a chauffeur to search for infantile 68. Ostrander v. Armour & Co., 176 trespassers ensconced on the far side App. Div. 152, 161 N. Y. Suppl. 961, of his car." wherein it was said: "It is a care of 69. Stipetich v. Security Stove iS: serious moment imposed upon the busy Mfg. Co. CMo. App.), 218 S. \>'. 964; teamster to mako a search around his Higbee Co. v. Jackson (Ohiol. 128 N'. car lest a child too young for discretion E, 61. and undirected by parents has tucked 70. Ziehm v. Yale, 98 Ohio. 30('>, W) herself away in an obscure place be- N. E. 702, 1 A. L. R. 1381. yond the casual and convenient notice 71. H(?bard v. Mabie, 98 111. \p\>- of the driver. The driver, by such rule, 543; Gamble v. Uncle Sam Oil Co. of in responsibility supersedes guardians Kan.. 100 Kans. 74, 163 Pac. 627. and other cu.stodians in watchfulness 72. Canililp v. Uncle Sam Oil Co. of 506 The Law of Automobiles. attractive or alluring nuisances does not apply to a motor vehicle proceeding along the streets.'^ Of course, if the driver of the vehicle expressly invites a child or other person to board the conveyance, a different question is presented, but the mere fact that children had previously climbed on the vehicle does not amount to an invitation in a particular case.^* Sec. 421. Confused pedestrian. It sometimes happens that a pedestrian becomes confused at the approach of an automobile, and, first starting in one direction and then in another, misleads the driver of the vehi- cle as to his course so that eventually a collision becomes un- avoidable. When the driver of the machine sees that the maneuvers of the pedestrian are such that his future course is uncertain, he must exercise such care as is warranted by the circumstances.^^ Where the pedestrian's course is vacil- lating and both he and the driver of the automobile are turn- ing first in one direction and then in the other, reasonable care would seem to require that the machine be brought under control so that it can be stopped before striking the foot trav- eler.'^" The questions of negligence and contributory negli- gence in such cases are generally for the jury,^'' though, if the driver of the machine has brought his car under control, Kan., 100 Kans. 74, 163 Pac. 627; 176 App. Div. 152, 161 N. Y. Suppl. Ostrander v. Armour & Co., 176 N. Y. 961. App. Div. 152, 161 N. Y. Suppl. 961. 75. Eaymond v. Hill, 68 Cal. 473, 73. Gamble v. Unele Sam Oil Co. of 143 Pac. 743 ; Westcoat v. Decker, 85 Kan., 100 KaJis. 74, 163 Pac. 627. N. J. L. 716, 90 Atl. 290; Citizens "The attractive nuisance doctrine can- Motor Car Co. v. Hamilton, 32 Ohio not be extended to include motor Cir. Ct. Kep. 407 ; Dougherty v. Davis, trucks, nor made applicable to cases 51 Pa. Supel-. Ct. 229. like this one. Motor trucks are in com- 76. Little v. Maxwell, 183 Iowa, 164, mon use, and no more attractive nuis- 166 N. W. 760; Weil v. Kreutzer, 134 ances than are drays and other ordi- Ky. 563, 121 S. W. 471; 24 L. R. A. nary vehicles used for carrying persona (N. S.) 557. See also Frankel v. Hud- and goods along the streets and high- son, 271 Mo. 495, 196 S. W. 1121. ways." Gamble v. Uncle Sam Oil Co. 77. McKiernan v. Lehmaier, 85 Conn, of Kansas, 100 Kans. 74, 163 Pac. 627. Ill, 81 Atl. 969 ; Heartsell v. Billows, 74. Gamble v. Uncle Sam Oil Co. of 184 Mo. App. 420, 171 S. W. 7; Cough- Kansas, 100 Kans. 74, 163 Pac. 627; lin v. Weeks, 75 Wash. 568, 135 Pac. Ostrander v. Armour & Co. (N. Y.), 649. And see section 487. Collision With Pedestrian. 507 and the oollision results because the pedestrian has suddenly jumped in front thereof, it may be held as a matter of law that the driver was not guilty of negligence.''^ Thus, where it appeared that a man crossing a street at a street intersec- tion, and after reaching a space between two surface railway tracks, upon hearing the horn from the defendant's automo- bile which was then between twenty and forty feet from him, threw up his hands, took one or two steps in front of the ma- chine and was instantly hit, the automobile being run at a speed between eleven and twelve miles per hour, it was held that a verdict that he was free from contributory negligence and that the accident was caused solely by the negligence of the chauffeur was against the weight of the evidence.''^ Sec. 422. Workmen in street. The rights of a workman whose duties require his continual presence in a street are somewhat different from those of a pedestrian who uses the streets merely as a means for travel from one place to another. The operator of a motor vehicle should appreciate the fact that the employment of a workman in a street requires that his attention be devoted to his work rather than to the approach of vehicles.^** Under such circum- stances, reasonable prudence on the part of the driver of the machine would seem to require that he have his car under control so that he can avoid the workman if the latter does not notice his approach, and, in case of a collision, he may be charged Avith negligence.^^ And the driver may be deemed 78. Virgilio v. Walker, 254 Pa. 241, 736; Burger v. Taxicab Motor Co., 66 98 Atl. 815. See also Carlson-Leonard Wash. 676, 120 Pac. 519. "Plaintiff (Cal. App.), 200 Pac. 40. was lawfully upon the roadway, in the 79. Wall V. Merkert, lb6 N. Y. App. performance of his duty, in plain view, Div. 608, 152 N. Y. Suppl. 293. and the driver of any vehicle upon 80. Burger v. Taxicab Motor Co., 66 such roadway was bound to take notice Wash. 676, 120 Pac. 519. of him and to exercise the care enjoined 81. Carneghi v. Gerlach, 208 111. App 340; Ostermeier v. Kingsman, etc., Co. 255 Mo. 128, 164 S. W. 218; Papic v Freund (Mo. App.), 181 S. W. 1161 White V. East Side Mill & Lumber Co. 84 Oreg. 224, 161 Pac. 969, 164 Pac by law upon the drivers of such vehicles not to injure him; and plaintiff could rightfully assume that this would be done. ' ' Nehing v. Charles M. Monroe Stationery Co. (Mo. App.), 191 S. W. 1054. 508 The Law of Automobu.es. guilty of negligence if he fails to give any warning of his ap- proach.^^ If a workman in the street, while engaged in his work, without any movement on his part, is struck from be- hind by a motor vehicle, in broad day-light, a prima facie case of negligence is established.^^ The question of negligence and contributory negligence are generally for the jury.^^ Thus, the driver of an automobile has been held liable for injuries received by a workman on street railway tracks.^^ And lia- bility may be imposed where a car has struck a policeman or traffic officer engaged in the performance of his duties in the street.**' Similarly, an employee of a city sewer gang has been allowed to recover injuries sustained by a collision with a taxicab.*'' So, too, a highway or bridge employee, may recover for injuries sustained from a motor vehicle.** A flagman at a railroad grade crossing may maintain an action for injuries from a collision with an automobire.® Sec. 423. Driving past street car — in general. When the driver of an automobile sees a street car stand- ing at a regular stopping place, it is his duty to recognize the fact that passengers may attempt to get on or off as he is passing the car, and he should exercise due precautions to avoid injury to such persons.^ Not only must he expect pas- 82. Sections 339-331. T. Suppl. 551; White v. East Side Mill 83. Nehing v. Charles M. Monroe & Lumber Co., 84 Oreg. 224. 161 Pac. Stationery Co. (Mo. App.), 191 S. W. 969, 164 Pac. 736: Heath v. Seattle 1054. Taxicab Co., 73 Wash. 177. l.-^l Pn--. 84. Carneghi v. Gerlach, 208 111. App. 843. 340 ; Nehing v. Charles M. Monroe Sta- 87. Burger v. Taxicab Motor Co.. 6(> tionery Co. (Mo. App.), 191 S. W. 1054. Wash. 676, 120 Pac. 519. Sections 452, 487. 88. Nehing v. Charles M. Monroe Sta- 85. King V. Grien, 7 Cal. App. 473, tionery Co. (Mo. App.), 191 S. W. 1054. 94 Pac. 777 ; Dube v. Keogh Storage 89. Davis v. Barnes. 201 Ala. 120, 77 Co. (Mass.), 128 N. E. 782; Cecola v. So. 612. See also Carter v. Redmond, 44 Cigar Co., 253 Pa. 623, 98 Atl. 775; 142 Tenn. 258, 218 S. W. 217. Morrison v. Conley Taxicab Co.. 94 90. United States. — New York Transp. Wash. 436, 162 Pac. 365. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 86. James v. Mott, (Mo. App.), 215 285; Taxi Service Co. v. Phillips. 187 S. W. 913 ; Xenodochius v. Fifth Ave. Fed. 734, 109 C. C. A. 482 ; Taxicab Co. Coach Co., 129 N. Y. App. Div. 26, 113 v. Parks, 202 Fed. 909, 121 C. C. A. N. Y. Suppl. 135; Fitzsimmons v. Is- 267. man, 166 N. Y. App. Div. 262, 151 N. Collision With Pedestrian. 509 sengers on the side of the car from which they alight, but he must anticipate that some passen^i^ers may pass behind the car to the other side.^^ The courts in some jurisdictions are constrained to say that more than ordinary care is required of the operator of a motor car when he is passing a stationary street car;^^ but other courts, in reaching the same practical Arkansas. — Minor v. Mapes, 102 Ark. 351, 144 S. W. 219. California. — Bannister v. H. Jevne Co., 28 Cal. App. 133, 151 Pac. 546. Connecticut. — Keams v. Widman, 108 Atl. 681. • Georgia. — See Wadley v. Dooly. 13S Ga. 275, 75 S. E. 153. Illinois. — Kerchner v. Davis, 183 111. App. 600; Rasmussen v. Drake, 185 111. App. 526. Indiana. — -Wellington v. Koyiiolils. 177 Ind. 49, 97 N. E. 155. Maine. — Wetzler v. Gould, 110 Atl. 686. Massachusetts. — Harnett v. Tripp, 231 Mass. 382, 121 N. E. 17. Michigan. — LevjTi v. Koppin, 183 Mich. 232, 149 N. W. 993. Minnesota. — Liehecht v. Crandall, 1 10 Minn. 454, 126 N. W. 69; Kling v. Thompson-McDonald Lumber Co., 127 Minn. 468, 149 N. W. 947; Johnson v. Johnson, 137 Minn. 198, 163 N. W. 160. Missouri. — Shamp v. Lambert, 141 Mo. App. 567, 121 S. W. 770; Bongnei V. Ziegenheim, 165 Mo. App. 328, 147 S. W. 182; Meenach v. Crawford, 187 S. W. 879. New York. — Kalb v. Redwood, 147 N. Y. App. Div. 77, 131 N. Y. Suppl. 789 ; Cowell v. Saperston, 149 App. Div. 373, 134 N. Y. Suppl. 284; O'Neil v. Kopke, 170 N. Y. App. Div. 601, 156 N. Y. Suppl. 664; Stemfield v. Willi- son, 174 App. Div. 842, 161 N. Y. Suppl. 472 ; Caesar v. Fifth Ave. Stage Co., 45 Misc. (N. Y.) 331, 90 N. Y. Suppl. 359. Pennsylvania. — Kauffman v. Nelson, 225 Pa. St. 174, 73 Atl. 1105; Frankel V. Norns, 252 Pa. 14, 97 Atl. 104 ; Mc- Evoy V. Quaker City Cab Co., 264 Pa. 418, 107 Atl. 777. 'Rhode Island. — Marsh v. Boyden, 33 R. L 519, 82 Atl. 393. Texas. — Posener v. Long (Civ. App.), 136 S. W. 591. Vermont. — Adams v. Averill, 87 Vt. 230, 88 Atl. 738. Washington. — Yanse v. Seattle Taxi- cab & Transfer Co., 91 Wash. 415, 157 Pac. 107. Canc(da.~T{ose v. Clark, 19 West. L. R. 456. Auto coming from behind pedestrian. — ' ' The complaint in this case shows that appellee was in the center of Main Street, running north, trying to catch a street car; that appellant, driving his automobile, was coming up behind ap- pellee, and gradually approaching him; that appellant saw appellee in the street ahead of him, but that appellee was un- aware of the presence of the machine. The right of appellee to be in the street for the purpose of boarding a street car is clear. Under the conditions al- leged in the complaint, it was the duty of appellant to exercise ordinary care to avoid running against appellee." Wellington v. RejTiolds, 177 Ind. 49, 97 N. E. 155. 91. Johnson v. Johnson, 137 Minn. 198, 163 N. W. 160; McMonagle v. Simpers (Pa. St.), 110 Atl. 83. 92. Kelly v. Schmidt, 142 La. 91, 76 So. 250. "And a chauffeur, driving a machine on a portion of the public highway which is usually used by vehi- cles going in an opposite direction, and driving by a standing street car at the regular place for taking on and putting 510 The Law of Automobiles. result, say that only reasonable care is required, but that rea- sonable care is such care as is commensurate with the danger. The amount of care required depends on the character of the machine as to size and weight, the speed and noise thereof, and the condition of the streets and other surrounding cir- cumstances.^^ It may be considered negligence for a person in charge of an automobile to run it along a street past a street car that has stopped to allow passengers to get on and off, at a rate of not more than six or seven miles an hour.^^ The questions of negligence,^^ and contributory negligence,^^ in these cases, are generally for the jury.^^ Driving close to the street car at any considerable speed is sufficient to sustain a charge of negligence.®^ Thus, where the evidence tended to show that the plaintiff, after alighting from a street car, looked up and down the street and then passed behind the car toward the other side of the street and was immediately struck by the defendant's automobile, which was being driven at a high rate of speed within a few inches of the car, it was off passengers, must use extra precau- tions to avoid accidents. Under such circumstances he will certainly be pre- sumed, in case of accident, to have seen a person standing in the roadway, or near the rear end of the street car, and his employer will be responsible in dam- ages for an accident occurring through his fault." Kelly v. Schmidt, 142 La. 91, 76 So. 250. Greater care. — The driver of an auto- mobile should exercise a greater degree of care at points where persons are in the habit of getting on and off cars than under ordinary circumstances. So a defendant was held liable for an in- jury to a person seeking to board a car at such a point where the driver of an automobile attempted to pass between the car and a vehicle which he had over- taken. Eose V. Clark, 19 West. L. R. (Canada) 456. 93. Bellinger v. Hughes, 31 Cal. App. 464, 160 Pac. 838. 94. Brewster v. Barker, 129 N. Y. App. Div. 907, 113 N. Y. Suppl. 1026. Twelve miles. — A speed of twelve miles an hour when passing a street car has been held sufficient evidence of negligence to justify a verdict against the owner of the automobile. Bannister V. H. Jevne Co., 28 Cal. App. 133, 151 Pac. 546. 95. Section 452. 96. Section 487. 97. Question for jury. — Where a per- son leaves a street car and proceeds at an ordinary pace toward the sidewalk, it cannot be said as a matter of law that the driver of an automobile who saw him in time to avoid a collision, but in fact ran into him, was free from negligence; under such circumstances, the questions of negligence and con- tributory negligence are for the jury. Hefferon v. Reeves, 140 Minn. 505, 167 N. W. 423. 98. Naylor v. Haviland, 88 Conn. 256, 91 Atl. 186; Johnson v. Johnson, 137 Minn. 198, 163 N. W. 160. Collision With Pedestrian. 511 held that the questions of negligence and contributory negli- gence were for the jury.^^ And, where there was evidence that a street car conductor stepped off the front end of his car to the street for the purpose of going to the rear thereof, and that when he stepped off, an automobile going from three to five miles an hour struck him though there was plenty of room near the curb for the auto to pass in safety, it was held that the negligence of the driver of the automobile was a question for the jury.^ Sec. 424. Driving past street car — moving street car. While the driver of an automobile is bound to anticipate that a standing street car is receiving or discharging passen- gers who may pass along the street in front of his machine, the situation is different in case of a moving street car. The operator of a motor vehicle is not bound to anticipate that a person will jump from a moving car in front of his vehicle, and, hence, in the absence of statute or municipal regulation affecting the question, when a passenger leaps from a moving street car in front of his vehicle, he is not chargeable Avith negligence merely because of his failure to stop or slacken the speed of his machine when meeting or passing the street car.- Sec. 425. Driving past street car — statutory and municipal requirements. Statutes and municipal ordinances have been enacted in some jurisdictions which bear upon the operation of automo- biles when passing street cars.^ These regulations are of two general classes. One prescribes the distance from the street car which an automobile must take when passing.* The other 99. Dugan v. Lyon, 41 Pa. Super. Ct. 127 Minn. 468, 149 N. W. 047; Grouch 52. V. Heffner, 184 Mo. App. 365, 171 S. W. 1. Caesar v. Fifth Ave. Sta^e Co. 45 Misc. (N. Y.) 331, 90 N. Y. Suppl 359. 2. Brown v. Brashear, 22 Cal. App 135, 133 Pac. 505; Horowitz v. Gott V. Schenk, 25 Mont. L. Rep. (Pa.) 18 3. EHing V. Thompson-McDonald Co. 23. 4. Bannister v. H. Jevne Co., 28 Cal. App. 133, 151 Pac. 546; Santina v. Tomlinson (Cal. App.). 171 Pac. 437; Kolankiewiz v. Burke, 91 N. J. L. 567, wait (N. J. Law), 102 Atl. 930; Starr 103 Atl. 249; Lorenzo v. Manhattan Steam Bakery. 178 App. Div. 706. 165 N. Y. Suppl. 847. 512 The Law of Automobiles. class regulates the speed of the machine, in some cases being so drastic as to require the stopping of the automobile.^ Thus, it has been enacted by statute that, ''When a motor vehicle meets or overtakes a street passenger car which has stopped for the purpose of taking on or discharging passengers, the motor veliicle shall not pass said car on the side on which pas- sengers get on or off, until the car has started and any passen- gers who have alighted, shall have gotten safely to the side of the road."^ It has also been held that a municipal corpora- tion may enact an ordinance forbidding automobiles to pass street cars while they are receiving or discharging passengers, and that the violation of such an ordinance is negligence per se? The effect of a violation of a statute or municipal ordi- 5. Mann v. Scott, 180 Cal. 550, 182 Pac. 281; Hartnett v. Tripp, 231 Mass. 382, 121 N. E. 17; Meenach v. Craw- ford (Me.), 187 S. W. 879; Horowitz V. Gottwalt (N. J. Law), 102 Atl. 930; Kolankiewiz v. Burke, 91 N. J. Law 567, 103 Atl. 349; Sehafer v. Rose- Gorman-Rose, 192 N. Y. App. Div. 860, 183 N. Y. Suppl. 161; Lewis v. Wood, 247 Pa. St. 545, 93 Atl. 605; Ward v. Cathey (Tex. Civ. App.), 210 S. W. 289; Zimmermann v. Mednikoflf, 165 Wis. 333, 162 N. W. 349. 6. Pennsylvania Statutes, Act of April 27, 1909 (p. L. 265). See Lewis V. Wood, 247 Pa. St. 545, 93 Atl. 605; Frankel v. Norris, 252 Pa. 14, 97 Atl. 104. "It will be observed that the de- fendant in violation to the statute passed the street car after it had stop- ped and on the side on which passen- gers were getting off. It is clear, there- fore, that the defendant was guilty of negligence which resulted in the plain- tiff's injuries. Aside from the act of assembly, it was a reckless and negli- gent act of the defendant in driving his machine at such speed and so close to the street car when the passengers were alighting and would necessarily proceed to cross the street to the side- walk. His conduct was clearly a viola- tion of duty which made him respon- sible for any resultant injury. He not only disregarded a plain duty which he owed to the 12 or 15 passengers alight- ing from the street car, but violated the positive command of a statute which required him not to pass the street car while it was at rest. He, therefore, not only failed to observe a plain duty im- posed by the civil law, but was also an offender against a criminal statute of the commonwealth. The court was manifestly correct in conceding that the defendant's conduct resulting in the plaintiff's injuries was actionable neg- ligence.'' Lewis V. Wood, 247 Pa. St. 545, 93 Atl. 605. See also Carson v. Raifman, 27 Que. K. B. (Canada) 337 ; Evans v. Lalonde, 47 Que. S. C. (Canada) 374. 7. Schell V. DuBois, 94 Oh. St. 93, 113 N. E. 664, wherein it was said: "In this case the ordinance made it unlaw- ful for a person to drive an automobile past a street ear, standing for the pur- pose of receiving or discharging passen- gers. It is inconceivable that, in the midst of daily experiences which arrest attention, any argument is needed to show the wisdom of such an ordinance or that it is within the police power of the Stato whose exercise has been dele- Collision AVith Pedestrian. 513 nance regulating the conduct of automobile drivers, is con- sidered more at length at another place in this work.* Regu- lations of this character may apply to persons intending to become passengers as well as those leaving the car.^ And pedestrians, who are crossing the street close to a standing street car, as well as the passengers of the car, are entitled to rely on the obedience by motorists of regulations and can avail themselves of the benefit thereof in case of a collision.^" If the street car does not stop at its usual stopping place, but at a point prohibited by a city ordinance, it may be error to submit the violation of it to the jury." The government may well be said to be as interested in protecting the lives and limbs of non-passengers as it is in protecting those who are passengers; and it is recognized that the former are in no better position to protect themselves than are the latter.^ Sec. 426. Driving past street car — assisting passenger on car. Due precautions should be taken by the operator of an au- tomobile to avoid injury to one who is assisting a passenger to board a street car or Avho is moving towards the sidewalk after giving such assistance. Thus, where it appeared that the plaintiff, having assisted friends to board a street car, started to cross the street; that she looked up and do\\Ti the street when crossing the first and second car tracks and saw nothing, but was struck by an automobile when she had nearly reached the curb ; and the chauffeur testified that the plaintiff gated to the city. Such an ordinance creased mutual oblgations of care on must be reasonable, and must not con- drivers and pedestrians." flict with general laws. The right of 8. Sections 397-402. the driver of an automobile to the use 9. Crombie v. O 'Brian, 178 App. Div. of tho public thoroughfares must be 807, 165 N. Y. Suppl. 858; Zimmer- recognized and not unreasonably inter- mann v. MednikoflF, 165 Wis. 333, 162 fered with. But the rights of pedes- N. W. 349. trians and others must be equally re- 10. Meenach v. Crawford (Mo.), 187 spected. All must realize that this S. W. 879; Kolankiewiz v. Burke, 91 comparatively new and more dangerous N. J. L. 567, 103 Atl. 249. method of travel, which has become a 11.- Horn v. Berg, 210 111. App. 238. permanent and essential factor in the 12. Meenach v. Crawford (Mo.), 187 life of the country, has imposed in- S. W. 879. 33 514 The Law of Automobiles. ran from beMnd the street car in front of his machine and that he did what he could to avoid her, but was unable to do so, while disinterested witnesses testified that the automobile was running from twenty to thirty miles an hour and made no effort to avoid the plaintiff, and that the impact threw her "ten or fifteen feet, and it appeared that it was windy with a flurry of snow, it was held that the negligence of the chauf- feur and the contributory negligence of the plaintiff were questions for the jury.^^ Sec. 427. Driving past street car — auto on wrong side of street. The fact that an automobile passes on the wrong side of a street car discharging passengers has a material bearing on the rights of the parties.^* In the first place, the violation of the law of the road is considered to constitute a prima facie case of negligence which calls upon the driver to explain his conduct in violating the rule.^^ Then, again, on the question of contributory negligence of the person injured, it is gen- erally held that one is not required to anticipate a violation of the law of the road by the driver of an automobile, and that the pedestrian is not required to look out for motor vehicles which may be proceeding on the wrong side of the street with 13. Baker v. Close, 137 N. Y. App. with a noisy steam train making the Div. 529, 121 N. Y. Suppl. 729. crossing at the same time. All of this 14. Harris v. Johnson, 174 Cal. 55, was done in total disregard of the 161 Pac. 1155; Hart v. Eoth, 186 Ky. rights of others using the street. Such 535, 217 S. W. 893. "Defendant's conduct was gross negligence on the auto truck was being driven at a great part of the driver, and it resulted in rate of speed, without lights; and the the death of plaintiffs' son." Kelly driver gave no signal as he approached v. Schmidt, 142 La. 91, 76 So. 250. the intersection of these two streets, 15. Sections 267, 433. and, without slacking his speed, he ran Greater vigilance. — When an auto his auto on the wrong side of the street, driver is proceeding along the wrong through a narrow way between a sta- side of the highway, a greater degree tionary electric car and the neutral of care is imposed on him to avoid in- ground, over a place which he well jury to persons on the street. New knew to be used by passengers in get- York Transp. Co. v. Garside, 157 Fed. ting on and off street cars, and where 521, 85 C. C. A. 285. he might expect traffic to be congested, Collision With Pedestrian. 515 the same degree of vigilance as for vehicles proceeding in accordance with the recognized custom of travel.^" Sec. 428. Driving past street car — liability of street railway company. There is a conflict of authority on the question of the duty of street railways in furnishing passengers a safe way to the sidewalk after they have alighted from a street car. But it is clear that the company must exercise the highest degree of care to see that its passengers alight in safety, its duty re- quiring it to warn them of danger, if any, at the place of alighting.^'^ Thus, there may be a (juestion for the jury whether a street car company has fulfilled its duty when it permits a passenger to alight immediately in front of an ap- proaching motor vehicle, without giving him any warning of the impending danger.'^ If a trespassing boy is frightened off a moving car in the path of a motor vehicle, the companj^ may be liable." The fact that the driver of the vehicle was also guilty of negligence does not excuse the negligence of the company.^ 16. Section 473. this condition exists, and the party in- 17. Woods V. North Carolina Public jured is not negligent, those respon- Service Co., 174 N. Car. 697, 94 S. E. siWe for the causes must answer iii 459, 1 A. L. R. 942. See also Logging damages, each being liable for the V. Southern Pub. Utilities Co. (N. whole damage, instead of permitting Car.), 106 S. E. 822. the negligence of one to exonerate the 18. Woods V. North Carolina Public other. It is in the application of this Service Co., 174 N. Car. 697. 94 S. E. principle it is held, except where the 459, 1 A. L. R. 942. See also Ellis v. doctrine of comparative negligence pre- Hamilton St. Ry., 18 O. W. X. vails, that the, plaintiff cannot recover (Canada) 226. if his own contributory negligence con- 19. Thomas v. Southern Penn. Tract. curs with the negligence of the defend- Co. (Pa.), 112 Atl. 918. ant in causing the injury, because as 20. Woods v. North Carolina Public his negligence is one of the proximate Service Co., 174 N. Car. 697, 94 S. E. causes, he as well as the defendant is 459, 1 A. L. R. 942, wherein it was liable for the whole damage, and as said: "The negligence of the driver there is no contribution among tort- of the automobile is established by the feasors, he cannot recover anything evidence, but this does not relieve the from the defendant." See to same defendant from liability, if it was also effect: Thomas v. Southern Penn. negligent, as there may be two proxi- Tract. Co. (Pa.), 112 Atl. 918. mate causes of an injury, and where 516 The Law of Automobiles. Sec. 429. Driving- on walk or place reserved for pedestrians — in general. When a foot traveler, while occupying a part of the street or highway which is devoted exclusively to the use of pedes- trians, is struck by a motor vehicle, it can usually be said with some degree of assurance that the driver of the machine has been guilty of negligence. Thus, when one is on the side of the road outside of the ordinary course for vehicular traffic and is there struck by an automobile, the negligence of the driver is generally at least a question for the jury.^^ Simi- larly, where a person seated on a park bench is injured by a vehicle driving over his foot, a finding of negligence on the part of the driver will be sustained.^^ And, where a State, through a State fair commission, permits a race of high powered automobiles to be held on fair grounds on a track originally made for horse races, and only protected by a wooden fence of flimsy construction which is not capable of resisting the impact of such machines, it has been held liable for injuries caused by a racing machine which leaves the track and plunges through the fence into a crowd of spectators.^* So, too, where one was injured by an automobile while pass- ing through the rear portion of an automobile repair and farm implement shop in order to transact business in the front, it was held that the fact that he reached the place where 21. Brogini v. Steyner, 124 Md. 369, tiff, was lawfully entitled to, and was 92 Atl. 806, where it was said: "The merely availing himself of, its reason- injury here, as thus shown, was not able use would amount to actionable suffered by a pedestrian who was cross- negligence. This is the theory of the ing a public thoroughfare, but by one declaration filed in the case, and, as ■who was on the edge of the road, where there was some testimony in its sup- it was not likely that he would be in port, we must hold that the trial court the way of those using other means of ruled correctly in refusing to direct a travel. The negligence charged here verdict for the defendant." See also consisted in driving an automobile so Kinmore v. Cresse, 53 Ind. App. 693, close to a person thus situated, as to 102 N. E. 403; Young v. Bacon (Mo. bring the side of the car in collision App.), 183 S. W. 1079. with him as he was pursuing his course 22. Silverman v. City of New York, in obvious ignorance of its approach. 114 N. Y. Suppl. 59. There can be no doubt that such an 23. Arnold v. State, 163 N. Y. App. undue appropriation of a highway to Div, 253, 148 N. Y. Suppl. 479. the injury of one who, like the plain- Collision With Pedestrian. 517 he was injured by passing through a rubbish-strewn alley and the rear entrance to the building, did not, upon the facts of the case, constitute him a bare licensee, so as to preclude him from invoking the rights of one upon the premises by in- vitation.2* Likewise, where a child playing in a lot at the side of the road, was struck by an automobile which was diverted from the highway by reason of a collision with another vehi- cle, negligence may be charged against the driver of the latter vehicle.^^ Sec. 430. Driving on walk or place reserved for pedestrians — sidewalk. When one is standing on or walking along a sidewalk or side path at a place where vehicles are not expected to run, and is injured by an automobile, as a general proposition, the cir- cumstances permit a charge of negligence against the driver of the vehicle.2« As was said in one case,^^ ''When a defendant is shown to have so driven his automobile rapidly over a part of the space allotted to the use of pedestrians as a sidewalk as to have inflicted injury on a person or property and it does not appear from the plaintiff's case that his action was without fault on his part, it is incumbent on him to show that it was not practicable in the exercise of care under the circum- stances to have prevented any part of his vehicle from occupy- ing the sidewalk space. ' ' As automobiles ordinarily travel on the part of the street within the curbs assigned to vehicular traffic, the mere fact 24. Jewison v. Dieudonne, 127 Minn. "Proof that the driver permitted liis 163, 149 N. W. 20. machine to be diverted from its main 25. Dilger v. Whittier, 33 Cal. App. course of travel on the street to the 15, 164 Pac. 49. sidewalk, without any warning to the 26. Jacob V. IvinS, 250 Fed. 431 ; people standing there of the fact of its Brown v. Des Moines Bottling Works, coming, would be proof of such negli- 174 Iowa, 715, 156 N. W. 829 ; Murray gence, prima facie, as would, in and of V. Liebmann, 231 Mass. 7, 120 N. E. itself, entitle the one injured by the 79; Rogles v. United Rys. Co. (Mo.), act to recover as for negligence." 232 S. W. 93; Work v. Philadelphia Brown v. Des Moines Steam Bottling Supply Co. (N. J.), 112 Atl. 183; Phil- Works, 174 Iowa, 715, 156 N. W. 829. pot V. Fifth Ave. Coach Co., 142 N. Y. 27. McGettigan v. Quaker City Au- App. Div. 811, 128 N. Y. Suppl. 35: tomobile Co.. 48 Pa. Super. Ct. 602. Flynn v. Siezega (R. L), 113 Atl. 1. 518 The Law of Automobiles. that one was run upon the sidewalk, to the hurt of pedestrian lawfully there, may bring into the play the doctrine of res ipsa loquitor}^ The fact that a person on the sidewalk is struck by an automobile has been said to cast upon its driver the burden of shomng that the accident did not result from negligence on his part.^^ Considerable prudence should be exercised when one is driving a motor vehicle in or out of a private driveway across a sidewalk, the nature of the crossing being an element to be considered on the care to be exercised by the driver."'^ Thus, when one is standing on the edge of the pavement with one foot on the curb, and the driver of an automobile either through reckless management or inexperi- ence drives his machine on the curb, the question of negligence is for the jury.^ When a motor vehicle skids so as to injure a 28. Ivins V. Jacob, 245 Fed. 892; Lazaromtz v. Levy, 194 N. Y. App. DiT. 400, 185 N. Y. Suppl. 359; Brown T. Des Moines Bottling Works, 174 Iowa, 715, 156 N. W. 829. "It was the duty of the driver of the automo- bile upon the traveled part of the street to control and manage his automobile vsdth such reasonable care and prudence as not to divert or permit its course to be diverted from the main street onto the sidewalk upon which people were standing. Therefore, when it is shown that one who is traveling upon the por- tion of the street set apart for the use of vehicles, suddenly, and without warning, diverts his course and comes upon the sidewalk upon which people are standing, he violates that duty which he owes to those rightfully on the sidewalk, and thus, prima facif. becomes involved in negligence. This involves the doctrine of res ipsa loqui- tur, and says: 'You violated your duty to those rightfully standing upon the sidewalk by allowing your car to be diverted suddenly from its course and to come upon the sidewalk, with- out warning to those rightfully con- gregated there.' It would be a doc- trine against all reason to uold that one driving upon the traveled portion of a street with a dangerous, heavy, and fast-moving vehicle may permit his vehicle to be suddenly diverted from its course upon the traveled street onto and over a sidewalk set apart for tha use of pedestrians. It is not going too far to say that such an act, not only involves negligence, but it would have a tendency to show a reckless and wanton disregard to the rights of those upon the sidewalk, and a violation of a palpable duty, which the law enjoins upon every man to so exercise his own right that he may not, unreasonably or unnecessarily, imperil the safety of others in the exercise of their rights." Brown v. Des Moines Steam Bottling Works, 174 Iowa, 715, 156 N". W. 829. 29. Trauerman v. Oliver's A^m'r, 125 Va. 458, 99 S. E. 647. 30. J. F. Darniody Co. v. Reed (Ind.), Ill N. E. 317; Crawley v. Jer- inain, 218 111. App. 51; Tuttle v. Bris- coe Mfg. Co., 190 Mich. 22, 155 N. W. 724. 31. May v. Allison, 30 Pa. Super. Ct. 50. See also !6enjamih v. McGraw, 208 Mich. 75, 175 N. W. 394. Collision With Pedestrlvn. 519 person on the sidewalk, the driver thereof may be liable for the ensuing damages.^^ Similarly, where an automobile skidded on a turn so that its top projected over the sidewalk and struck a boy, the owner was held liable, it appearing that there were no conditions making it necessary for the driver to make such a short turn on such a high speed.^' So, too, when one standing inside of the curb was struck by a spare tire carried on the running board of an automobile, it was held that there was sufficient to charge the automobilist with negli- gence.^^ And when a tire blew out and by reason thereof the locking ring was released and struck a pedestrian, and it appeared that the accident could have been avoided had the driver stopped the machine more promptly, a question of neg- ligence was presented for the jury.^ Likewise, when a per- son, who was leaning against a pole on the inside of the curb, was struck and killed by an automobile, liability for his death was sustained.^® Sec. 431. Driving on walk or place reserved for pedestrians — safety zone. When one reaches a "safety zone" in a street, out of which vehicles are expected to remain, he may reasonably rely on the security thereby expected to be afforded. If he is struck by an automobile while he is in such a location, it is reasonable to charge the driver thereof with the results of the collision.^ Sec. 432. Passing pedestrian walking along road. The situation with reference to pedestrians on a village or city street is somewhat different than as to pedestrians travel- ing along a rural highway. In the latter case, the pedestrian does not generally have the benefit of a sidewalk or other path 82. Philpot V. Fifth Ave. Coach Co.. 35. Regan v. Cummiugs, 228 Mass. 142 N. Y. App. Div. 811, 128 N. Y. 414, 117 N. E. 800. Suppl. 35; Core v. Resha (Tenn.), 204 36. Mehegran v. Faber, 158 Wis. 645, S. W. 1149. 149 N. W. 397. 33. McGettigan v. Quaker City Auto- 37. See also Crombie v. O'Brien, 178 mobile Co., 48 Pa. Super. Ct. 602. N. Y. App. Div. 807; JeflFares v. 34. Murray v. Liebmann, 231 Mass. Wolenden, 31 W. L. R. (Canada) 428. 7, 120 N, E. 79. 520 The Law of Automobiles. especially devoted to his needs. As in other cases of fellow travelers, it is the duty of the driver of an automobile to exer- cise reasonable care to avoid injury to one walking along the highway.^^ If the foot traveler is oblivious of the approach of the vehicle, the driver should give a warning of his approach.^* But the law of the road does not, as a general proposition, have much importance in cases of this kind. A statute pro- viding that vehicles shall turn to the right upon meeting, does not have any application as between an automobile and a pe- destrian meeting on the highway."^ Nor does a statutory en- actment providing a rule of the road for the overtaking and passing of vehicles on the highway necessarily apply as be- tween an automobile and a pedestrian.^^ A statutory pro- vision may limit the speed at which a motor vehicle shall pass a person walking along the highway .^^ Foot travelers have equal rights upon the highway with the drivers of vehicles, and the usual statement of their obligation is that they must use what amounts to reasonable care in the particular circum- 38. Dozier v. Wooas, 190 Ala. 279, 67 So. 283; Scheuermann v. Kuete- meyer (Cal.), 199 Pac. 13; Griffen v. Wood, 93 Conn. 99, 105 Atl. 354; Dodge V. Toth (Conn.), 110 Atl. 454; Van Rensselaer v. Chism, 174 N. Y. Suppl. 751, 186 App. Div. 557. See also Brown v. City of 'Wilmington, 4 Boyce (Del.) 42, 90 Atl. 44; King v. Brillhart (Pa.), 114 Atl. 515. "Trav- elers upon a public highway owe a duty to others traveling upon such highway, and that duty requires them to so rea- sonably conduct themselves in the use of the highway as that they will not injure others who are also traveling upon such highway." ... In this case each simple negligence count shows that the defendant was travel- ing in an automobile upon a public highway, and that the plaintiff was lawfully walking along such highway. The law therefore cast the duty upon the defendant to drive his automobile in such a reasonable way as not to in- jure the defendant. Dozier v. Woods, 190 Ala. 279, 67 So. 283. "It requires no discussion to demonstrate that it might have been found negligent on the part of one driving an automobile at night to overtake and run into a pedestrian traveling so far as appears continuously in a direct path on the right of a road, without veering to one side or the other." Powers v. Loring, 231 Mass. 458, 121 N. E. 425. 39. Alport V. Ellis (Mass.), 128 N. E. 634; Dignum v. Weaver (Mo. App.), 204 S. W. 566. 40. Apperson v. Lazro, 44 Ind. App. 186, 88 N. E. 99. And see section 244. 41. Randolph v. Hunt (Cal. App.), 183 Pac. 358; Brown v. Thayer, 212 Mnss. 392, 99 N. E. 237; Marton v. Pickrell (Wash.), 191 Pac. 1101. See also Feehan v. Slater, 89 Conn. 697, 96 Atl. 159. 42. Eames v. Clark (Kan.), 177 Pac. 540. Collision With Pedestrian. 521 stances. It may be that as a matter of law reasonable care requires a pedestrian who is about to be overtaken by an au- tomobile to step to one side and allow it to pass, so that it will not have to turn out and go around him. And if the road, or the traveled portion, is so narrow that one or the other must get outside of it in order that the car may pass, doubt- less this should be done by him who is on foot, because he can do it the more easily. But, where the beaten track is wide enough for several vehicles to pass, there can be no hard and fast rule that pedestrians must get completely outside of the highw^ay or of the traveled portion of it."*^ Sec. 433. Motor vehicle on wrong- side of street. When a motor vehicle strikes a pedestrian in the street, if the vehicle is traveling on the wrong side of the highway, a presumption sometimes arises that the driver thereof is guilty of negligence.'*^ In other words, the evidence that the machine was on the side of the road forbidden by the law of the road creates a prima facie case of negligence.^' The pre- sumption created by violation of the law of the road is not conclusive.^^ It may be rebutted by evidence affording some excuse for the automobilist proceeding on the wrong side of the road.''^ Thus, he may pass to the left side of the road and proceed there for a reasonable distance in order to avoid an 43. Eames v. Clark (Kan.), 177 Pac. 45. Coonan v. Straka, 204 111, App. 540. 17; Carpenter v. Campbell Automobile 44. Slaughter v. Goldberg, Bowen & Co., 159 Iowa, 52, 140 N. W. 225; Co., 26 Cal. App. 318, 147 Pac. 90; Mc- Steele v. Burkhardt, 104 Mass. 59; Gee V. Young, 132 Ga. 606, 64 S. E. Grier v. Samuel, 4 Boyce (27 Del.) 74, 689; Buxton v. Ainsvvorth, 138 Mich. 85 Atl. 759; Segerstrom v. Lawrence. 532, 101 N. W. 817, 11 Det. Leg. N. 64 Wash. 245, 116 Pac. 876. 684, 5 Ann. Cas. 177; Moy Quon v. M. 46. Todd v. Orcutt (Cal. App.), 183 Furuya Co., 81 Wash. 526, 143 Pac. 99. Pac. 963. See also Trzetiatowski v. Evening 47. Conder v. Griffith, 61 Ind. App. American Pub. Co., 185 111. App. 451; 218, 111 N. E. 816; Riepe v. Elting, 89 Devine v. Ward Baking Co., 188 111. Iowa, 82, 56 N. W. 285, 26 L. R. A. App. 588; Vos v. Franke, 202 111. App. 769; Carpenter v. Campbell Automo- 133; Wortman v. Trott, 202 111. App. bilo Co., 159 Iowa, 52, 140 N. W. 225; 528; Fitzsimmons v. Isman, 166 N. Y. Mickelson v. Fischer, 81 Wash. 423. 142 App. Div. 262, 151 N. Y. Suppl. 551. Pac. 1160. And see sections 270-274. And see section 267. 522 The Law of Automobiles. obstruction in the street; and, in case of a collision wdth a pedestrian, he will not necessarily be charged with negli- gence/^ Or, if he turns to the wrong side of the road in an emergency to avoid an accident he may not be liable.** And, when there is little or no travel upon the highway, the auto- mobile may properly be driven on the left-hand side of the highway, though a higher degree of care is thereby imposed on the driver.^^ Neither at common law nor under some of the State statutes is negligence to be inferred from the fact that the vehicle was driven along the center of the road.^^ When an automobile overtakes a slower vehicle, it is the gen- eral rule of the road that it shall pass to the left of the for- ward vehicle,^^ but the driver of the machine must exercise due care in making the passage so as to avoid injuries to persons or other conveyances which he might strike by passing to the left side of the highway. He must exercise care to see if he 'can pass to the left with safety to travelers on such side of the highway.^^ But the driver of a motor vehicle when turn- ing to the right to pass a wagon is not necessarily bound to anticipate that a boy sitting on the rear of the wagon will jump off and run toward the machine.^* If he passes the vehicle on the wrong side, and thereby strikes a pedestrian, he may be charged with negligence.^^ 48. Clark v. Van Vleck, 135 Iowa, required to pass the vehicle ahead of 194, 112 N. W. 648. See also Hood & him to the left. That requirement, Wheeler Furniture Co. v. Eoyal (Ala. however, is subject to the conditions App.), 76 So. 965. existing in the highway and does not 49. Burlie v. Stephens (Wash.), 193 relieve the driver of the passing vehi- Pac. 684. cle from the duty of exercising reason- 60. Segerstrom v. Lawrence, 64 Wash. able care to ascertain whether he can 245, 116 P. 876; Moy Quon v. M. Fur- pass the vehicle ahead with safety to ruya Co., 81 Wash. 526, 143 Pac. 99; other vehicles or pedestrians which or Osborne v. Landis, 34 W. L. R. who may happen to be on the left side (Canada) 118. See also New York of the street." Pool v. Brown, 89 N. Transportation Company v. Garside, J. Law, 314, 98 Atl. 262. And see sec- 157 Fed. 521, 85 C. C. A. 285. tion 254. 51. Linstroth v. Peper (Mo. App.), 54. Bishard v. Engelbeck, 180 Iowa, 188 S. W. 1125. 1132, 164 N. W. 203. 52. Section 252. 55. Brautigan v. Union Overall Laun- 53. Pool v. Brown, 89 N. J, L. 314, dry Supply Co., 211 111. App. 354; 98 Atl. 262. <' Under the traffic law of Hanser v. Youngs (Mich.), 180 N. W. this State, the driver of a vehicle is 409. Collision With Pedestrian. 523 Sec. 434. Turning corner. Statutory enactments or municipal ordinances generally prescribe that warning shall be given when an automobilist seeks to turn a corner over a crosswalk.^'' In some cases pro- visions are made as to the distance which shall exist between the automobile and the curb." A provision of this character is designed for the protection of pedestrians seeking to cross the street at the corner. Or the law makers may take an en- tirely different view of the duty of the drivers of motor vehi- cles at corners and require that they keep as close to the curb as possible.^^ Such a regulation is intended to decrease the hazard of a collision with another vehicle. Where an ordi- nance required a person driving an automobile, upon turning the corner of any street **to leave a space of at least six feet between the curb and the automobile," and it appeared that on a lot fronting the street a building was in the course of erection and that debris was piled on the corner of the street around which a fence or barricade had been constructed, com- pelling pedestrians to leave the regular walk, step into the street and walk around the outside of the fence or barricade, it was held that the fence became the *'curb" within the mean- ing of the ordinance.^® When making a turn toward the left, the law of the road, as frequently fixed by statutes and muni- cipal ordinances, requires that the driver of the vehicle shall not cut the corner but shall pass around the center of the in- tersection.''^ Independently of statutory regulations as to the conduct of automobile drivers when turning corners, a duty of exercising such care as is commensurate with the great danger at such places is imposed on the operator of a motor vehicle." ''Those who handle these machines, which arp 56. Section 330. (Minn.), 178 N. W. 886; Rule v. Clnar 67. City of Oshkosh v. Camphell, 1.51 Transfer & Storage Co.. 102 Xeb. 4. Wis. 567, 139 N. W. 316. 165 N. W. 883; White v. East Side Mill 58. Pemherton v. Amy (Cal. App.), & Lumber Co., 84 Oreg. 224, 161 Pnr. 183 Pac. 356, affirmed, 182 Pac. 964. 969, 164 Pac. 736. And see section 69. Domke v. Gunning, 62 Wash. 259. 629. 114 Pac. 436. • 61. Anderson v. Schom, 189 App. 60. Pemberton. v. Amy (Cal.). 182 Div. 495, 178 N. Y. Suppl. 603; Doyle Pac. 964; Unmacht v. Whitnev v. Holland (R. T. > 100 Atl. 4M. 524 The Law of Automobiles. highly dangerous if driven rapidly, especially along a crowded thoroughfare, and more especially when turning at the angle of two intersecting streets or roads, should strictly obey the law and exercise that degree of care generally which is com- mensurate with the great hazard produced by a failure to do so. They should hold their cars well in hand and give timely signals at points where people should reasonably be expected to be, and where they have a right to be. ' '^^ Sec. 435. At street crossing — in general. At a street crossing, a pedestrian has equal rights with the driver of a m.otor vehicle.^^ It is the duty of each to exercise reasonable care.''* While ordinary care is said to measure to vigilance of the driver of an automobile,^^ the vigilance of the driver must vary according to the danger naturally antici- pated from the operation of his machine. What would not be an excessive or even moderate speed under some conditions, w^ould be considered as recldess under others. When ap- proaching a street intersection or crossing which is much fre- quented by vehicles and pedestrians, a much less speed and much greater amount of vigilance is required than between 62. Manly v. Abernathy, 167 N. Car. of the pedestrian about as easily and 220, 83 S. E. 343. quickly as he can get out of its way, 63. Weihe v. Rathjen Mercantile Co., although it is usually the case, and 34 Cal. App. 302, 167 Pac. 287; Brown rightfully so, that the pedestrian en- V. City of Wilmington, 4 Boyce (Del.) deavors to keep out of the way of vehi- 492, 90 Atl. 44; Crandall v. Krause, cles at street crossings; but, if he does 165 111. App. 15 ; Wortman v. Trott, not, this does not excuse the driver of 202 111. App. 528 ; Switzer v. Baker, that vehicle who runs him down, unless 178 Iowa, 1063, 160 N. W. 372; Miller it be that the driver was free from V. New York Taxicab Co., 120 N. Y. negligence, and the pedestrians by his Suppl. 899. "The automobile must use want of care was to blame for the col- only the carriage way of the street, lision." Weidner v. Otter, 171 Ky. while the pedestrian, except at street 167, 188 S. W. 335. And see section crossings, uses generally only the side- 414. walk. But the pedestrian, in the use 64. Weihe v. Rathjen Mercantile Co., of the street at a regular crossing, has 34 Cal. App. 302, 167 Pac. 287 ; Switzer the same right to its use as vehicles v. Baker, 178 Iowa, 1063, 160 N. W. and is under no legal duty to give way 372; Shields v. Fairchild, 130 La. 648, to automobiles. The automobile can go 58 So. 497. around him as well as he can go 65. Section 277. around it. It can get out of the way Collision With Pedestrian. 525 crossings or at crossing where the traffic is less.^*^ The degree of care which the driver of the vehicle must exercise is that which a reasonably prudent man would exercise under the same circumstances, considering the nature and extent of the traffic and the surrounding circumstances. Following this line of reasoning, it is sometimes said that the driver of an automobile is required to exercise a ''greater" degree of care at street intersections." In using the streets and highways an automobilist does so with knowledge that at street intersections other vehicles may approach to cross or turn into the one over which he is travel- ing, and that at such points crosswalks are ordinarily pro- vided for the use of pedestrians. He should, therefore, oper- ate his car wath that degree of care which is consistent with the conditions thus existing, the rate of speed and his control over the car varying according to the traffic at the particular place. Under all circumstances he should at such points keep a careful w^atch ahead to avoid injury to pedestrians using the crosswalks.'^^ He should maintain such control of his machine that, on the shortest notice, he can stop it so as to prevent in- jury to pedestrians." It is the duty of the operator of an automobile, when approaching a street crossing used by pedes- trians, to keep a lookout, to give reasonable and timely warn- ing of the movement of the machine by the usual and cus- 66. Vv'eihe v. Rathjen Mercantile Co., right to be." Manlev v. Abernathy, 34 Cal. App. 302, 167 Pac. 287; Brown 167 N. Car. 220, 83 S. E. 343. V. City of Wilmington, 4 Boyce (Del.) 67. Weihe v. Rath.ien Mercantile Co., 492, 90 Atl. 44. "Those who handle 34 Cal. App. 302, 167 Pac. 287; Cccchi these machines, which are highly dan- v. Lindsay, 1 Boyce (Del.) 185, 75 Atl. gerous if driven rapidly, especially 376, reversed 80 Atl. 523; Grier v. along a crowded thoroughfare, and Samuel, 4 Boyce (Del.) 106, 86 Atl. more especially when turning at the 209; Brown v. City of Wilmington. 4 angle of two intersecting streets or Boyce (Del.) 492, 90 Atl. 44; Arnold roads, should strictly obey the law and v. McKelvey, 253 Pa. 324. 98 Atl. 559; cxcrc'se that degree of care generally Virgilio v. Walker, 254 Pa. 241, 98 Atl. which is commensurate with the great 815. hazard produced by a failure to do so. 68. Rowe v. Hammond, 172 Mo. App. They should hold their cars well -- 203, 157 S. W. 880; Lyons v. Volz (N. hand and give timely signals at pyints J.), 114 Atl. 318. where people should reasonably be ex- 69. Virgilio v. Walker, 254 Pa. 241. pectcd to be and where thoy have a 98 Atl. 815. 526 The Law of Automobiles. tomary signals, and to operate it at a reasonable rate of speed, considering the amount of foot and vehicular traffic at the crossing.'^" If the pedestrian is upon the crosswalk at the time of the arrival of the motor vehicle, the driver should slacken or stop the machine ; but he is not necessarily bound to stop until the pedestrian has passed over the entire crosswalk and reached the opposite sidewalk.''^ Between crossings, the same standard of care is not required of the operator of an auto- mobile; although he must exercise reasonable care and con- stantly be on the lookout for the safety of others.''^ Positive regulations may affect the duty of the automobilist at street crossings, such as limitations as to speed, requirements as to signals or warning; or regulations may give the pedestrian the right of way at street crossings.''^ If, owing to the dif- ferent methods of locomotion and travel, the law recognizes a right of precedence in the use of a crossing, it does not mean that the persons having such right may loiter upon or obstruct the crossings to, the exclusion of others or to the interruption of street traffic, but rather that, when two or more persons moving in different directions approach a crossing at the same time or in such manner that if both or all continue their re- spective courses there is danger of collision, then the one hav- ing the preference is entitled to the first use of such crossing, and it is the duty of others to give him reasonable opportunity to do so.'* 70. Weidner v. Otter, 171 Ky. 167, and maintain such control that, on the 188 S. W. 335. shortest possible notice, they can stop 71. Switzer v. Baker, 178 lowt 1063, their cars so as to prevent danger to 160 N. W. 372. pedestrians; on the other hand, be- 72. Virgilio v. Walker, 254 Pa. 341. tween crossings drivers are not held to 98 Atl. 815. See also Weidner v. Otter, the same high standard of care, al- 171 Ky. 167, 188 S. W. 335. "The laW though, of course, they must be con- requires that every person shall take stantly on the looTcout for the safety of due care for the safety of himself anl others." Virgilio v. Walker, 254 Pa. others according to the circumstances 241, 98 Atl. 815. in which he is placed. Vehicles have 73. Switzer v. Baker, 178 Iowa, 1063, the right of way on the portion of the 160 N. W. 372; Elmberg v. Pielow highway set apart for them, but at (Wash.), 194 Pac. 549. crossings all drivers, particularly of 74. Switzer v. Baker, 178 Iowa, 1063, motor vehicles, must be highly vigilant 160 N. W. 372. Collision With Pedestrian. 527 Sec. 436. At street crossing — unfavorable weather condi- tions. Among the circumstances to be considered by the driver of an automobile at a street crossing are the weather conditions. Thus, in a blinding snow storm, it may be difficult for either the pedestrian or the driver to see, less so for the former when he is protected by a wind shield. Under such circumstances more caution should be exercised by him in the management of the car, and consideration must be given to the less favor- able conditions under which the pedestrian may be proceed- ing. A similar situation may exist in the case of a heavy rain storm."^^ And, if there is ice or snow upon a crosswalk making it more difficult for a person to walk and compelling him to proceed at a slower pace, the operator of the vehicle should exercise a degree of care which is consistent with the condi- tions presented. Sec. 437. At street crossings — view obstructed. Where there is an obstruction to an automobilist's view of a street crossing, he must exercise a degree of care such as a reasonably prudent man would exercise under the same cir- cumstances to avoid injury to pedestrians or other vehicles at such poinf* Sec. 438. Lookout for pedestrians. A motorist is bound to realize that other vehicles and pe- destrians will use the streets and highways, and he is bound to anticipate that they will lawfully occupy portions of the street in his course. He must, therefore, keep a reasonably careful lookout for the presence of such other travelers in order that injury to them may be avoided.'^ He should, keep 75. Harting v. Kjiapwurst, 178 111. El. App. 255; Smith v. Tappen, 208 App. 409. See also Powers v. Wilson, HI. App. 433; Arkin v. Page, 212 HI. 138 Minn. 407, 165 N. W. 231. App. 282. 76. Deputy v. Kimmell, 73 W. Va. Indiana.— Hussen v. Scharfe, 130 N. 595, 80 S. E. 919. E. 437. 77. United States. — Pennison v. Mc- Iowa. — Holderman v. Witmer, 166 Morton, 228 Fed. 401, 142 C. C. A. 631. Iowa, 406, 147 N. W. 926. Illinois. — Coppock v. Schlatter, 193 Kentuclcy. — Weidner v. Otter, 171 528 The Law of Automobiles. a lookout for pedestrians, not only at street crossings, but between street intersections.'^^ The duty to look implies the duty to see what is in plain view, unless some reasonable ex- Ky. 167, 188 S. W. 335; Major Taylor & Co. V. Harding, 182 Ky. 236, 206 S. W. 285. Louisiana. — Eeed v. Sievers, 146 La. 391, 83 So. 685. Minnesota. — Noltmier v, Rosenber- ger, 131 Minn. 369, 155 N. W. 618. Missouri. — Eisenman v. Griffith, 181 Mo. App. 183, 167 S. W. 1142; Hop- flinger v. Young (Mo. App.), 179 S. W. 747; Weiss v. Sodemann Heat & Power Co. (Mo. App.), 227 S. W. 837: Schinogle V. Baughman (Mo. App.), 228 S. W. 897. New Hampshire. — Hamel v. Peabody, 78 N. H. 585, 97 Atl. 220. New Jersey. — "The driver of the automobile was under a legal duty to use reasonable care to avoid colliding with other vehicles or persons in the public highway. His duty was to be on the alert to observe persons who were in the street or about to cross the street and to use reasonable care to avoid colliding with them. He was un- der a duty to have his automobile under proper control. He was un- der an obligation to take notice of the conditions existing in the public street and to propel his car in a manner suit- able to those conditions. He was un- der a duty to observe the condition which existed at the crosswalk, in that for a distance of 12 feet the view of a person crossing from the east to the west side of Halsey street was obscured by the top of the wagon. Pool v. Brown, 89 N. J. Law, 314, 98 Atl. 263. New York. — Keosayan v. Geiger, 188 App. Div. 829, 176 N. Y. Suppl. 585; Thies V. Thomas. 77 N. Y. Suppl. 276. Pennsylvania. — Kuehne v. Brown. 257 Pa. 37, 101 Atl. 77. Bhode Island. — Thomas v. Burdick, 100 Atl. 398. Virginia. — Core v. Wilhelm, 98 S. E. 27. Washington. — Adair v. McNeil, 95 Wash. 160, 163 Pac. 393. Canada.— White v. Hegler, 29 D. L. R. 480, 34 W. L. R. 1061. And see sections 332-336. Not negligence per se. — The failure to keep a lookout is not necessarily negligence per se. Texias Motor Co. v. Buffington (Ark.), 203 S. W. 1013. More lookout required of driver than of pedestrians. — "It is, too, a familiar rule in the law of negligence that the care to be exercised must cor- respond with the capacity to injure, and accordingly the automobilist is un- der a much higher degree of care to look out for the pedestrian than the pedestrian is to look out for the auto- mobilist. The pedestrian cannot merely by the manner in which he uses the street harm the automobilist, but the automobilist may by his manner of us- ing the street kill the pedestrian; and so, generally speaking, the pedestrian is required only to look after his own safety, and not the safety of others, while the automobilist must look out for the safety of the pedestrian rather than his own." Weidner v. Otter, 171 Ky. 167, 188 S. W. 335. 78. Ivy V. Marx (Ala.), 87 So. 813, holding that the fact that an ordinance prohibits the crossing by the pedestrian does not relieve the driver of his duty to keep a lookout between crossings. Pedestriaji crossing street not at regular crossing.— In White v. Hegler, 29 D. L. R. (Canada) 480, 34 W. L. R. 1061, it was said: "I think it is the law that a pedestrian crossing not at a crossing and not looking, and there- fore being very careless, would be en- titled to damages from an automobile Collision With Pedestrian. 529 planation is presented for a failure to see.'^ The driver of an automobile is bound to operate his conveyance with refer- ence not only to the pedestrians and conditions he actually sees, but also as to such as he should see in the exercise of reasonable care.^** In other words, negligence may be in- ferred from the failure to see a pedestrian as "svell as in the management of an automobile either before or after seeing him. "To have looked too late was not to have looked at all." Moreover, he is bound to take notice of such conditions in the street as obscure an approaching pedestrian, and to have his machine under proper control so as to avoid injury to one who is so obscured.^^ Testimony on the part of the driver of an automobile or of the occupants thereof that they did not see a pedestrian who was struck by the machine, may tend to in- culpate rather than excuse their management of the automo- bile.^^ So, testimony on the part of the defendant that the automobile was proceeding slowly and that its lights were in proper order, while perhaps exonerating him as to the negli- gence in those respects, may afford ground for charging him with negligence in failing to keep a proper lookout for persons in the street.^^ Whether one is negligent in not seeing a pedes- trian sooner, is generally a question for the jury.^^ The duty driver who with no obstructed view App.), 198 Pac. 640; Holderman v. could have seen the pedestrian at a Witmer, 166 Iowa, 406, 147 N. W. 926. Buffic'ent distance to avoid him, but Question for jury. — The rcasonable- who for instance for no justifiable pur- ness of the explanation for a failure pose kept his eyes either on his feet in to see, is a question for the jury, the car or on a window at the side of Holderman v. Witmer, 166 Iowa, 406, the street and so did not see the pedes- 147 N. W. 926. trian and ran over him — who, in other 80. Walker v. Rodrijjuez, 139 La. words, did not keep a lookout to see 251, 71 So. 499. See also Coppock v. that he did not run into anyone. Also Schlatter, 193 111. App. 255. an automobile driver who does not keep 81. Pool v. Brown, 89 N. J. L. 314. a pood lookout and docs not see a pe- 98 Atl. 262. And see section 326. dcstrian apparently going to cross his 82. See Holderman v. Witmer, 166 path without looking, is not entitled to Iowa, 406, 147 N. W. 926; Gray v. go on and leave the responsibility upon Batchclder, 208 Mass. 441, 94 N. E. the pedestrian. He must use reason- 702; McMonagle v. Simpers (Pa. St."). able care, when he sees the danger, to 110 Atl. 83. avoid hira." 83. Adair v. McNeil, 95 Wash. 160. 79. Warner v. BerthofF, 40 Cal. App. 163 Pac. 393. 776, 181 Pac. 808; Stone v. Gill (Cal. 84. Booth v. Meagher, 224 Mass. 472 34 530 The Law of Automobiles. to look for other persons is satisfied by looking in the direction in which the machine is proceeding ; there is no duty cast upon the operator of looking behind to see that children do not attempt to climb on the machine,^^ or to see that pedestrians keep clear from the rear end of his vehicle or the load thereon.^*^ But he must anticipate that pedestrians will ap- proach from the side, and he should keep a lookout toward the side as well as the front, particularly at street crossings.*^ Sec. 439. Avoidance of person standing in street. Where a person is standing still in the street and does not observe the approach of an automobile, it is the duty of the driver to turn out so as to avoid striking him.''^ Especially is this so, when there is ample room for the auto driver to pass the pedestrian in safety.^^ He is not permitted to run him down and then claim that such pedestrian was guilty of con- tributory negligence in not seeing and avoiding the automo- bile.^° As was said in one case,^^ '* While it is no doubt true that a person in a highway must use care, yet when one is rightfully in the highway, and standing there, another per- son certainly cannot run him down without being guilty of 113 N. E. 367; Beno v. Kloka (Mieh.), (Cal. App.), 193 Pac. 259. "For these 178 N. W. 646; Marsters v. Isensee defendants to proceed up the avenue, (Oreg.)) 192 Pac. 907. even at a speed of eight miles an hour 85. Hebard v. Mabie, 98 111. App. (to say nothing of the evidence war- 543. And see section 333. ranting the inference that they were 86. Barton v, Craighill (Pa.), 112 going faster) all the time seeing this Atl. 96. boy standing in the gutter with his 87. Thomas v. Burdick (R. I.), 100 back to them, and apparently unmind- Atl. 398; Bulger v. Olataka Yamoaka ful of their approach, and to run him (Wash.), 191 Pac. 786. down without the slightest effort to 88. Wells v. Shepard, 135 Ark. 466, warn or avoid him, is so indicative of 205 S. W. 806; Amaz v. Forbes (Cal. carelessness as to afford abundant evi- App.), 197 Pac. 364; Nehing v. Charles dence to make a question for the M. Monroe Stationery Co. (Mo. App.), jury." Dervin v. Frenier, 91 Vt. 398, 191 S. W. 1054; Humes v. Schaller, 100 Atl. 760. 39 R. I. 519, 99 Atl. 55; Dervin v. 89. Stephenson v. Parton, 89 Wash. Frenier, 91 Vt. 398, 100 Atl. 760; 653, 155 Pac. 147. Stephenson v. Parton, 89 Wash. 653, 90. Humes v. Schaller, 39 R. I. 519, 155 Pac. 147 ; Ouellette v. Superior 99 Atl. 55. Motor & M. Works, 157 Wis. 531, 147 91. Stephenson v. Parton, 89 Wash. N. W. 1014. See also Coffman >. Singh 653, 155 Pac. 147. Collision With Pedestrian. 531 negligence." Thus, it is held that one running an autoino- bile is bound to take notice of a person standing in the road- way conversing with a friend, and is bound to use care not to injure him.^^ ^nd, where it appeared that a ''jumper" on a delivery wagon, after alighting and while taking some parcels from the wagon, was struck by an automobile, it was held that the negligence of the parties was properrly submitted to the jury.^3 Sec. 440. Sudden turning or backing without warning. The driver of an automobile will be liable for injuries sus- tained by a pedestrian, where the machine makes a sudden turn without warning, thereby coming in collision with such pedestrian.^* And, where one passing several feet back of a standing automobile is injured by reason of the sudden back- ing of the machine without warning, the jury is justified in charging the driver with negligence.^^ The backing of a ma- chine over a crossing without warning in a direction contrary to the general traffic, permits an inference of negligence.*® One backing a machine from a garage to the street should exercise reasonable diligence to give a warning of his ap- proach or to ascertain the danger to which other travelers are exposed.*'^ If the car strikes a person or other vehicle before reaching the crosswalk, the situation is different than when a pedestrian along the walk is injured.*^ But the law does not absolutely forbid the backing of a vehicle, and the jury may properly find in some cases that the driver exercised due care in the maneuver.^^ The mere fact that the chauffeur 92. Kathmeyer v. Mehl (N. J.), 60 S. W. 699; Glinco v. Wimer (W. Va.), Atl. 40. See also Hanser v. Youugs 107 S. E. 198. (Mich.), 180 N. W. 409. 96. Wirth v. Burns Bros., 229 N. Y. 93. Gerhard v. Ford Motor Co., 155 148, 128 N. E. 111. Mich. 618, 119 N. W. 904, 20 L. R. A. 97. Texas Motor Co. v. Buffington (N. S.) 232. (Ark.), 203 S. W. 1013. 94. O'Dowd V. Newnham, 13 Ga. 98. Caplan v. Reynolds (Iowa), 182 App. 220, 80 .3. E. 36. See also Boh- N. W. 641. ringer v. Campbell, 154 N. Y. App. 99. Sheldon v. James, 175 Cal. 474, Div. 879, 137 N. Y. Suppl. 241. 166 Pac. 8, 2 A. L. R. 1493; Caplan v. 95. Estrom v. Neumoegen, 126 N. Y. Reynolds (Iowa), 182 N. W. 641; Suppl. 660. See also Suddarth v. Kirk- Glinco v. Wimer (W. Va.), 107 8. E. land Daley Motor Co. (Mo. App.), 220 198. 532 The Law of Automobiles. cannot see over the back of the automobile while sitting would not, in and of itself, convict him of negligence in the backing of the car, if he took reasonable precautions before so doing by looking to the right and left, or by standing up and so looking over the back of his car.^ Sec. 441. Speed and control of automobile — control in gen- eral. The driver of an automobile is bound to anticipate that other travelers, both in carriages and on foot, will use the highway, and hence it is his duty to have his machine under reasonable control so as to avoid injury to such travelers.^ This requires that the speed of the car shall be reasonable 1. Sheldon v. James, 175 Cal. 474, 166 Pac. 8, 2 A. L. R. 1493. 2. Alabama. — Hood & Wheeler Furn- ture Co. V. Royal (Ala. App.), 76 So. 965. Illinois: — Kessler v. Washburn, 157 111. App. 532; Crandall v. Krause, 165 111. App. 15. Iowa. — Brown v. Des Moines Steam Bottl-ng Works, 174 Iowa, 715, 156 N. W. 829; Gilbert v. Vanderwall, 181 Iowa, 685, 165 N. W. 165. Kentucky. — Baldwin's Adm'r v. Maggard, 162 Ky. 424, 172 S. W. 674; Major Taylor & Co. v. Harding, 182 Ky. 236, 206 S. W. 285 ; Ferris v. Mc- Aidle, 92 N. J. L. 580, 106 Atl. 460. Louisiana. — Walker v. Rodriguez, 139 La. 251, 71 So. 499. Michigan. — Levyn v. Koppin, 183 Mich. 232, 149 N. W. 993. Minnesota. — Johnson v. Johnson, 137 Minn. 198, 163 N. W. 160; Geiger v. Sanitary Farm Dairies, 178 N. W. 501. Neiv Jersey. — Pool v. Brown, 89 N. J. L. 314, 98 Atl. 262. Neiv York. — Bohringer v. Campbell, 154 Ap:i. Div. 879, 137 N. Y. Suppl. 241 ; Thies v. Thomas, 77 N. Y. Suppl. 276; Busacca v. McLaughlin Supply Co., 189 App. Div. 584, 178 N. Y. Suppl. B49. North Carolina. — Manley v. Aber- nathy, 167 N. C. 220, 83 S. E. 343. Oregon. — Weygandt v. Bartle, 88 Oreg. 310, 171 Pac. 587; Marstera v. Isensee, 192 Pac, 907. Pennsylvania. — Lorah v. Rhinehart, 243 Pa. St. 231, 89 Atl. 967; Reese v. France, 62 Pa. Super. Ct. 128; Healy V. Shedaker, 264 Pa. St. 512, 107 Atl. 842; Schweitzer v. Quaker City Cab Co. (Pa.), 112 Atl. 442; Mackin v. Patterson (Pa.), 112 Atl. 738; Twinn V. Noble (Pa.), 113 Atl. 686. "In a crowded city street, the dictates of common prudence clearly require that a heavy vehicle, such as an automo- bile, shall be kept under control so as to avoid, or at least minimize, the dan- gers of a coirsion. Common experi- ence and observation show that the only adequate method of control is to run the machine slowly." Lorah v. Rinehart, 243 Pa. St. 231, 89 All. 967; Sehoepp v. Gerety, 263 Pa. St. 538, 107 Atl. 317; Anderson v. Wood, 264 Pa. St. 98, 107 Atl. 658. Virginia. — Core v. Wilhelm, 124 Va. 150, 98 S. E. 27. Washington.—De'^tehleT v. Ball, 99 Wash. 483, 170 Pac. 123; Locke v. Greene, 100 Wash. 397, 171 Pac. 245. Collision With Pedestrian. 533 under the circumstances,^ and that it shall not be greater than the rate prescribed by statute or municipal ordinance.* The control required of the driver of an automobile is not "al)so- lute" control; all that is required is "reasonable" control.'^ He is not compelled at all times to run so slowly that he can stop instantly.^ The test of control is the ability to stop quickly and easily. When this result was not accomplished, the inference is obvious that the car was running too fast or that a proper effort to control it was not made.' When the circumstances at a given point demand that the speed be slackened or that the car be stopped, the sounding of the horn or any other warning of approach will not be sufficient.^ If, however, the machine is traveling at a reasonable speed and is under reasonable control, there will ordinarily be no lia- jjility for an injury to a pedestrian who unexpectedly jumps in front of the machine so close thereto that the driver by an exercise of due care is unable to avoid a collision.^ Sec. 442. Speed and control of automobile — stopping. The duty to have an automobile under reasonable control naturally implies that the driver shall exercise the power of control whenever reasonably necessary for the avoidance of injuries to others.!** If a pedestrian is crossing his course in 3. Sections 305, 443. from all the evidence in this case, that 4. Section 444. as the driver of the defendant 's truck 5. Baldwin's Adm'r v. Maggard. at the time and place in question ap- 162 Ky. 424, 172 S. W. 674. proached the place where the deceased 6. McMillen v. Shaihmamn, 264 Pa. was injured there was no apparent ne- 13, 107 Atl. 332. cessity appearing for the driver of said 7. Lorah v. Rinehart, 243 Pa. St. truck stopping or slacking the speed 231, 89 Atl. 967, holding that the jury of the truck in order to prevent injury may take into consideration in judg- to the deceased, then the law did not ing of the speed of an automobile, the require the driver of the truck to stop distance it traveled after striking a pe- or slacken the speed of the truck." destrian before it came to a stop. Devine v. Brunswick-Balke-Collendor 8. Kessler v. Washburn, 157 111. App. Co., 270 111. 504, 110 N. E. 780. wherein ^^^- the court said: "This instruction was 9. Lewis V. Steel, 52 Mont. 300, 157 clearly erroneous. It is not a question Pac. 575. And see section 416. as to whether or not, in approaching 10. Instructions as to necessity for the place in question, there was no stopping.— It has been held error for 'apparent necessity appearing for the the court to charge: "If you believe, driver of said truck stopping or slack- 534 The LaA^ of Automobiles. such proximity that a collision is possible, the speed of the car should be slackened." But he is not required to begin stopping the machine as soon as he sees a pedestrian in front, irrespective of his being in a position of danger.^^ Moreover, the circumstances may be such, as when a collision is immi- nent, that reasonable care in the operation of the machine requires the stopping thereof." The driver of an automobile does not necessarily fulfill his duty by proceeding very slowly, but he should bring his machine to a stop if it is necessary in order to prevent an injury to a pedestrian." Thus, when one crossing a street becomes confused and vacillates as to the course he shall pursue, reasonable care may require that the driver stop his automobile in order to avoid the collision.^ Likewise, if his vision is obscured by the glare of other lights, he should stop his machine instead of running the danger of a collision by proceeding.^* And it may be the duty of thp driver to stop when he meets or overtakes a street car which is receiving or discharging passengers.^^ But, in the absence of statute or other regulation on the subject, there is no rule of law which requires the driver of an automobile to slack its speed while he is passing a moving street car." ing the speed of the truck in order to Kessler v. Washburn, 157 HI. App. prevent injury to the deceased,' but 532; Crawford v. McElhinney, 171 whether or not the driver was operat- Iowa, 606, 154 N. W. 310; Walmer- ing the car with that degree of care Roberts v. Hennesey (Iowa), 181 N. and skill which an ordinarily prudent W. 798 ; Kelly v. Schmidt, 142 La. 91, and skillful driver would have exer- 76 So. 250; Thies v. Thomas, 77 N. Y. cised under the circumstances, having Suppl. 276. See also Clark v. Jones due regard to the location, circum- (Oreg.), 179 Pac. 272. stances and surroundings in which the 14. Crawford v. McElhinney, 171 driver was operating his car at the Iowa, 606, 154 N. W. 310; Gagnon v. time." Robitaille, 16 R. L. N. S. 235. 11. Levyn v. Koppin, 183 Mich. 232, 15. Section 421. 149 N. W. 993. 16. Hammond v. Morrison, 90 N. J. 12. Selinger v. Cromer (Mo. App.), L. 815, 100 Atl. 154. 208 S. W. 871. 17. Section 423, et seq. 13. New York Transp. Co. v. Gar- 18. Starr v. Schenk, 25 Mont. L. Rep. side, 157 Fed. 521, 85 C. C. A. 285; (Pa.) 18. Silvia V. Scotten (Del.), 114 Atl. 206; Collision With Pedestrian. 535 Sec. 443. Speed and control of automobile — speed. Independently of any statute or municipal regulation affect- ing the question, it is the duty of a motorist to run his auto- mobile not faster than a reasonable rate of speed.^ If an excessive speed is a proximate cause of injuries to a child or adult in the street, the jury may be warranted in holding the driver of the machine liable for the injuries thus received.^" 19. Section 305. Evidence, — The testimony of an oc- cupant of an automobile that the pe destrian who was killed thereby ap peared so suddenly that the collision could not have been avoided, even if the speed had not exceeded four miles an hour, is admissible as tending to show that the accident was not due to excessive speed. Lewis v. Steel, 52 Mont. 300, 157 Pac. 575. 20. United States. — New York Transp. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285. Arkansas. — Texas Motor Co. v. Buf- fington, 203 S. W. 1013: Tlughey v. Lennox, 219 S. W. 323. California. — Bannister v. H. Jevne Co., 28 Cal. App. 133, 151 Pac. 546; Clohan v. Kelso (Cal. App.), 183 Pac. 349. Connecticut. — Lynch v. Shearer, 83 Conn. 73, 75 Atl. 88. Illinois. — Kessler v. Washburn, 157 111. App. 532; Kuchler v. Stafford, 185 ni. App. 199; Trzetiatowski v. Even- ing American Pub. Co., 185 111. App. 451 ; Osberg v. Cudahy Packing Co., 198 111. App. 551; Brantigan v. Union Overall Laundry & Supply Co., 211 111. App. 354. Indiana. — Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457. Kentucky. — Buford v. Hopewell, 140 Ky. 666, 131 S. W. 502; Forgy v. Rut- ledge. 167 Ky. 182, 180 S. W. 90; Weidner v. Otter. 171 Ky. 167. 188 S. W. 335. Massachusetts. — Rasmussen v. Whip- ple, 211 Mass. 546, 98 N. E. 592; Tripp V. T.-ift, 219 Mass. 81. 106 N. E. 578; Creedon v. Galvin, 226 Mass. 140, 115 N. P]. 307 ; French v. Mooar, 226 Mass. 173, 115 N. E. 235: Buoniconte v. Lee, 234 Mass. 173, 124 N. E. 791; Kamin- ski v. Foumier, 126 N. E. 279. Michigan. — Levyn v. Koppin, 183 Mich. 232, 149 N. W. 993; Wilson v. .Johnson, 195 Mich. 94, 161 N. W. 924. Minnesota. — Johnson v. Johnson, 137 Minn. 198, 163 N. W. 160. .Uis.t&uri. — Sullivan v. Chauvenet ^Mo.), 222 S. W. 759;- Hopflinger v. Young (Mo. App.), 179 S. W. 747. New Jersey.- — Ilecknian v. Cohen, 90 N. J. L. 322, 100 Atl. 695. \ew York. — Bohringer v. Campbell, 154 App. Div. 879, 137 N. Y. Suppl. 241 ; Fittin v. Sumner, 176 App. Div. 617, 163 N. Y. Suppl. 443; Dultz v. Fisehowitz, 104 N. Y. Suppl. 357. Oregon. — Weygandt v. Bartle. S8 Oreg. 310, 171 Pac. 587. Pennsylvania. — Freel v. Wanamaker, 208 Pa. St. 279, 57 Atl. 563; Lorah v. Rinehart. 243 Pa. St. 231, 89 Atl. 967; Schoepp V. Gerety, 263 Pa. St. 538, 107 Atl. 317; Michalsky v. Putney, 51 Pa. Super. Ct. 163; Karaffa v. Ferguson, 68 Pitts. Leg. Jour. 109. South Dakota. — Heidner v. Germ- schied, 41 S. Dak. 430. 171 N. W. 208. Tennessee. — Lauterbach v. State, 132 Tenn. 603, 179 S. W. 130. Washington. — Heath v. Seattle Taxi- cab Co., 73 Wash. 177. 131 Pac. 843; Adair v. McNeil. 95 Wash. 160. 163 Pac. 393; Deitchler v. Ball. 99 Wash. 183, 170 Pac. 123; Locke v. Greene, 100 Wash. 397, 171 Pac. 245. 536 The Law of Automobiles. The speed of the vehicle is the critical point in determining whether it is under control. Thus, it has been said, "Common experience and observation show that the only adequate method of control is to run the machine slowly. "^^ What is a reasonable rate depends upon the circumstances of each particular case,^^ and is ordinarily a question for the jury.^ With a clear track and plenty of room, the rate of twelve to fifteen miles an hour would, no doubt, be deemed very moderate, but in the thick of traffic where the streets are crowded with vehicles and pedestrians, a jury might conclude that a prudent person with due regard to the safety of him- self and others, would drive a heavy automobile at a much slower rate.^^ A speed of five or six miles an hour when driving through a crowd of children playing in the street may be gross negligence.^^ But a speed of from five to eight miles an hour when approaching the crossing of a busy street, is not necessarily negligent.^*' Sec. 444. Speed and control of automobile — speed prescribed by statute or ordinance. Statutory and municipal regulations as to the speed of au- tomobiles are to be obeyed, and, if an injury results to a pedes- trian from a violation of such a regulation, the driver, as a general proposition, jnust answer for the damages.^' It is 21. Lorah v. Rinehart, 243 Pa. St. Hunt (Cal. App.), 183 Pac. 358; 231, 89 Atl. 967. Heartsell v. Billows, 184 Mo. App. 420, 22. Hood & Wheeler Furniture Co. v. 171 S. W. 7; McCown v. Muldrow, 91 Royal (Ala. App.), 76 So. 965; Ginter S. Car. 523, 74 S. E. 386; Franey v. V. O'Donoghue (Mo. App.), 179 S. W. Seattle Taxicab Co., 80 Wash. 396, 141 732; Lorah v. Rinehart, 243 Pa. St. Pac. 890; Bruner v. Little, 97 Wash. 231, 89 Atl. 967. 319, 166 Pac. 1166. 23. LaDuke v. Dexter (Mo. App.), And see section 297. 202 S. W. 254. And see section 325. Homicide. — In case of a violation of 24. Lorah v. Rinehart, 243 Pa. St. a speed statute resulting in the death 231, 89 Atl. 967. of a pedestrian, the circumstances may 25. Haacke v. Davis, 166 Mo. App. be such that a prosecution for homi- 249 148 S. W. 450. cide can be sustained. Lauterbach v. 26. Gilbert v. Vanderwall, 181 Iowa, State, 132 Tenn. G03, 179 S. W. 130. 685, 165 N. W. 165. And see section 759. 27. Denison v. McNorton, 228 Fed. Fire apparatus. — As a general rule 401, 142 C. C. A. 631; Randolph v. the fire apparatus of a municipality is Collision With Pedestrian. 537 sometimes held that the violation of the prescribed speed is negligence per se;^^ in other jurisdictions and under regula- tions with different language, the violation is thought to be prima facie evidence of negligence.^^ Some regulations do not forbid a greater speed than that specified but merely make the greater speed prima facie evidence that the automobile was proceeding at an unreasonable speed ; in such a case, the driver may show that under the circumstances in a particular case, the speed was not unreasonable though greater than the prescribed rate.^*^ The fact that the operator of the car was proceeding within the prescribed limit of speed, does not necessarily require a holding that he was free from negli- gence.^^ Though the speed may be limited by statute or muni- cipal ordinance, nevertheless the duty remains on the driver to operate his machine no faster than a reasonable speed under the circumstances, and the jury may be authorized to find that a speed below the limit was unreasonable.^^ Sec. 445. Speed and control of automobile — auto turning corner. When an automobile is turning a corner, the driver should take notice that pedestrians may be crossing the street; and, exempted from the speed limitations, and a pedestrian injured by such ap- paratus cannot recover for his injuries merely because the speed exceeded the general limit prescribed by statute. Hubert v. Granzow, 131 Minn. 361, 155 N. W. 204. 28. Weimer v. Rosen, 100 Ohio, 361, 126 N. E. 307; Whaley v. Ostendorff, 90 S. Car. 281, 73 S. E. 186; McCown V. Muldrow, 91 S. Car. 523, 74 8. E. 386; Ludke v. Buick, 160 Wis. 440, 152 N. W. 190, L. R. A. 1915D 968. And see section 321. 29. Bruhl v. Anderson, 189 111. App. Rutledge, 167 Ky. 182, And see section 322. Michell, 196 HI. App. 461 ; Forgy \ 180 S. W. 90 30. Berg v 509. 31. Section 324. 32. Kessler v. Washburn, 157 HI. App. 532; Bohm v. Dalton, 206 111. App. 374; Forgy v. Rutledge, 167 Ky. 182. 180 S. W. 90; Ginter v. O'Donog hue (Mo. App.), 179 S. W. 732; Adair V. McNeil, 95 Wash. 160, 163 Pac. 303. "No owner or operator of an autonio bile is necessarily exempt from lia- bility for 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 the law or the ordinances. On the contrary, he still remains bound to an- ticipate that he may meet persons at any point in the public street and ho must keep a proper lookout for them and keep his machine under such con trol as will enable him to avoid a col lision with another person, using proper care and caution." Kessh^r v Washburn. 157 HI. App. 532. 538 The Law of Automobiles. under such circumstances, the speed of the machine should be slowed and the car operated with care.^ A pedestrian cross- ing the street at such a place has a right to assume that the driver of an automobile will operate his conveyance with due regard to the rights of pedestrians at such places.^* Thus it is said : "Those who handle these machines, which are highly dangerous if driven rapidly, especially along a crowded thoroughfare, and more especially when turning at the angle of two intersecting streets or roads, should strictly obey the law and exercise that degree of care generally which is com- mensurate with the great hazard produced by a failure to do so. They should hold their cars well in hand and give timely signals at points where people should reasonably be expected to be, and where they have a right to be."^^ j^ go^^e juris- dictions there have been enacted drastic regulations as to the speed of motor vehicles when turning corners, and their vio- lation may form the basis for an action for injuries by a pe- destrian.^*^ Where the driver of an automobile traveling at the rate of ten or twelve miles an hour turned his car across the sidewalk into an alley, without having the machine under control so as to avoid striking persons passing along the street or crossing the alley, it was held that he was guilty of negli- gence.^'^ Sec. 446. Vehicle left standing in street. The mere leaving of an automobile in the street for a rea- sonable length of time is not necessarily negligence.'* Proper precautions should be taken, however, to the end that it will not automatically start and thereby cause injury to a person in the street. Thus, if the machine is stopped on a hill, the operator should set the brakes and use care to the end that the force of gravity will not set it in motion.^^ But, when the 33. Buscher v. New York Transpor- 36. Heartsell v. Billows, 184 Mo. tation Co., 106 N. Y. App. Div. 493, App. 420, 171 S. W. 7. 94 N. Y. Suppl. 798. 37. Kuchler v. Stafford, 185 HI. 34. Buscher v. New York Transpor- App. 199. tation Co., 106 N. Y. App. Div. 493, 38. Section 340. 94 N. Y. Suppl. 798. 39. Oberg v. Berg, 90 Wash. 435, 156 35. Manley v. Abernathy, 167 N. C. Pac. 391. 220, 83 S. E. 343. (.'OLLLSION AVlTH l^KDESTRIAN. 539 starting of the machine is rhio to tlic^ iinhiwi'ul act of children or other persons, an interesting question of proximate cause arises. As a general proposition, it is held that the unlawful act of such a trespasser is an intervening cause which the operator of the machine is not bound to anticipate, and hence he is not liable for injuries caused thereby.'"' Where it ap- peared that, while the defendant's automobile was at a stand- still in the street, the plaintiff, after pulling out another ))oy's foot which was stuck ))etweeii l)arrels on the machine jumped off, and the car then backed up a hill about five feet running over the plaintiff, it was held that the circumstances called for some explanation by the defendant.'" Sec. 447. Lights. Independently of statute, it is held to be a neglect of due care for an automobile not to be equipped with a light suffi- cient for the driver to distinguish other travelers and objects in the highway sufficiently far in advance that he may avoid a collision therewith.^- But, in any event, it is now almost universally required l)y statute that motor vehicles shall carry illumination, in some cases the statutes in detail providing the kind of equipment in this respect. A regulation relative to lights may l)e deemed to be for the protection of pedestrians as well as for other vehicles, so that a pedestrian injured by an automobile may ground his action on the failure of the 40. Vincent v. Crandall & Godley Co., said: "It makes no difference whether 131 N. Y. App. Div. 200, 115 N. Y. the friend was a trespasser on the au- Suppl. 600; Larzarowitz v. Levy, 194 tomobile, or whether plaintiff came to N. Y. App. Div. 400, 185 N. Y. Suppl. his assistance or not. The plaintiff 359; Berraan v. Schultz, 84 N. Y. had a right to be in the public street. Suppl. 292; Sorrusca v. Hobson, 155 The automobile of defendant was at a N. Y. Suppl. 364; Frashella v. Taylor, .stop and the unexplained sudden back- 157 N. Y. Suppl. 881; Rhad v. Du- ing of the automobile, without any quesne Light Co., 255 Pa. St. 409, 100 warning, calls at least for some ex- Atl, 262. See also Oberg v. Berg, 90 planatiou on the part of the defend- Wash. 435, 156 Pac. 391. Compare, ant." Lee V. Van Buren, etc., Co.. 190 App. 42. Walden v. Stone (Mo. App.), 223 Div. 742, 180 N. Y. Suppl. 295. And S. W. 136; Lannon v. Fond du Lac, see section 342. 141 Wis. 57. 123 N. W. 629, 25 L. B. 41. Grudberg v. Ehret, 79 Mi.sc. 627, A. (N. S.) 40. And see sections 344- 140 N. Y. Suppl. 379, wherein it wa« 348. 540 The Law of Automobiles. driver to have the machine properly equipped with lights.'*^ In case of conflict as to whether the lamps were lighted, a question of fact for the jury is presented.''* A statute rela- tive to the lights on a motor vehicle has been held not appli- cable to a "dead" car towed by another/^ Sec. 448. Signal of approach. Due care may require, when the operator of a motor vehi- cle, sees that a pedestrian is in or is about to enter into his course, that he sound his horn or give some warning of his approach. If he fails to do so, and a pedestrian in the exer- cise of due care is thereby injured, he is properly chargeable with negligence rendering him liable for the injuries proxi- mately resulting.''^' The giving of a signal to a traffic officer 43. Stewart Taxi Service Co. v. Roy, 127 Md. 70, 95 Atl. 1057; Johnson v. Quinn, 130 Minn. 134, 153 N. W. 267; Thomas v. Stevenson (Minn.), 178 N. W. 1021. See also Buford v. Hope- well, 140 Ky. 666, 131 S. W. 502. 44. Johnson v. Quinn, 130 Minn. 134, 153 N. W. 267. 45. Musgrave v, Studebaker Bros. Co. of Utah, 48 Utah, 410, 160 Pac. 117. 46. California. — Blackwell v. Ran- wick, 21 Cal. App. 31, 131 Pae. 94. Indiana. — J. F. Darmody Co. v. Reed, 111 N. E. 317 ; Russell v. Scharfe, 130 N. E. 437. Iowa. — ^Wine v. Jones, 183 Iowa, 1166, 162 N. W. 196, 168 N. W. 318. Kentucky. — Buford v. Hopewell, 140 Ky. 666, 131 S. W. 502; Weidner v. Otter, 171 Ky. 167, 188 S. W. 335; Collett v. Standard Oil Co., 186 Ky. 142, 216 S. W. 356; Adams v. Parish, 225 S. W. 467. Louisiana. — Kelly v. Schmidt, 142 La. 91, 76 So. 250. Massachusetts. — Rasmussen v. Whip- ple, 211 Mass. 546, 98 N. E. 592; Tripp V. Taft, 219 Mass. 81, 106 N. E. 578; Buckley v. Sutton, 231 Mass. 504, 121 N. E. 527. Michigan. — Levyn v. Koppin, 183 Mich. 232, 149 N. W. 993; Johnston V. Cornelius, 200 Mich. 209, 166 N. W. 983, L. R. A. 1918D 880. Minnesota. — Johnson v. Quinn, 130 Minn. 134, 153 N. W. 267. Missouri. — Reynolds v. K e n y o n (Mo.), 222 S. W. 476; Sullivan v. Chauvenet (Mo.), 222 S. W. 759; Gin- ter V. O'Donoghue (Mo, App.), 179 S. W. 732; Young v. Bacon (Mo. App.), 183 S. W. 1079; Dignum v. Weaver (Mo. App.), 204 S. W. 566; Brooks v. Harris (Mo. App.), 207 S. W. 293; Rubick v. Sandler (Mo. App.), 219 S. W. 401; Weiss v. Sodemann Heat & Power Co. (Mo. App.), 227 S. W. 837. New Hampshire. — Hamel v. Peabody, 78 N. H. 585, 97 Atl. 220. New Jersey. — Pool v. Brown, 89 N. J. Law 314, 98 Atl. 262; Heckman v. Cohen, 90 N. J. L. 322, 100 Atl. 695. Neio Yortc. — Cowell v. Saperston, 149 App. Div. 373, 134 N. Y. Suppl. 284; Klosayian v. Geiger, 188 App. Div. 829, 176 N. Y. Suppl. 585; Bradley v. Jaekel, 65 Misc. 509, 119 N. Y. Suppl. 1071; Dultz V. Fischowitz, 104 N. Y. Suppl. 357. North Carolina. — Manly v. Aber- nathy, 167 N. Car. 220, 83 S. E. 343. Collision With Pedestrian. 541 may not be sufficient." The driver of a car is bound to assume that pedestrians will be using street crossings as he ap- proaches them and he must give them, or be ready to give them, reasonable warning of his approach.*^ And, when pass- ing a street car which is discharging passengers, he is bound to anticipate that passengers and other persons may pass be- hind the car in his course, and he must give a warning of his approach.^^ The common law duty in respect to warning other travelers is now generally affirmed by statutes or municipal regulations.^^ A statute requiring motor vehicles to be equipped with a horn or other signals, impliedly requires that such equipment shall be used for the warning of pedestrians and other travelers with whom a collision may be expected." The fact that the horn was not sounded, however, does not conclusively establish the liability of an automobilist for in- juries to a person in the street. For example, if a boy sud- denly and unexpectedly darts in front of an automobile, the failure of the operator to sound the horn may not be suffi- cient proof of negligence to support an action for the injuries to the child.52 tj^^ failure to sound the horn is not negligence Pennsylvania.^ecola v. 44 Cigar 49. Johnson v. Johnson, 137 Minn. Co., 253 Pa. G23, 98 Atl. 775; Kuehno 198, 163 N. W. 160. V. Brown, 257 Pa. 37, 101 Atl. 77. 50. Rolfs v. Mullins, 180 Iowa, 472, Washington.— SegorstTom v. Law- 163 N. W. 232; Wine v. Jones, 183 rente, 64 Wash, 245, 116 Pac, 876; Iowa, 1166, 162 N. W. 196, 168 N. W, Moy Quon v, M, Furruya Co., 81 Wash. 318; Creedon v. Galvin, 226 Mass. 140, 526, 143 Pac. 99; Olsen v. Peerless 115 N. E. 307; Johnston v. Cornelius, Laundry (Wash.), 191 Pac. 756. 200 Mich. 209, 166 N. W. 983, L. R. A. " The uncontradicted fact in the case 1918D 880; Benson v, Larson, 133 is that the driver of the automobile Minn. 346, 158 N. W. 426; Aiken v. gave no audlhle s'gnal or warning of Metcalf, 92 Vt. 57, 102 Atl, 330. And his approach to tho obscured part of see section 330. the crosswalk. From that fact alono 51. Forgy v. Rutledge, 167 Ky. 182, the jury might properly have found 180 S. W. 90; Johnston v. Cornelius that the driver's failure to sound a (Mich.), 166 N. W. 983; Vannett v. warning of the approach of his auto- Colo (N. Dak.), 170 N. W, 663, mobile to the crossing was negligent 52. Bishard v. Engelbcck, 180 Iowa conduct." Pool V. Brown, 89 N. J. 1132, 164 N. W. 203; Levosque v. Du- Law 314, 98 Atl. 262. mont, 116 Me. 25, 99 Atl. 719; Chiap- 47. Walmer-Robcrts v, Hennessey pone v. Grcnebaum, 189 App. Div. 579, (Iowa), 181 N. W. 798, 178 N, Y. Suppl. 854; Winter v. Van 48. Coppock V. Schlatter, 193 111, Blarcom, 258 Mo. 418, 167 S. W. 498; App. 255; Raymen v, Galvin (Mo,), Fcvrer v, Durbrow (Wis.). 178 N, W. 229 S, W. 747. 306, 542 The Law of Automobu.es. yer se under all circumstances.^ But in some cases the viola- tion of a regulation of this nature is thought to constitute negligence per se,^* or prima facie negligence.^^ Except pos- sibly where the requirements as to the horn are specially pre- scribed by statute, whether the equipment of the machine in this respect is sufficient, is generally a question for the jury.^^ The mere sounding of a signal of approach may not be suffi- cient evidence of due care, for the circumstances may be such that due caution requires the slacking of the machine or even the stopping of progress." The fact, however, that a horn was sounded and as a result thereof a pedestrian was startled and became confused so that he sustained an injury, does not afford ground for rendering the operator of the machine liable.s^ Tjie purpose of sounding a horn is to give a warn- ing to other travelers of the approach of the vehicle ; and, if the person injured has actual knowledge of the approaching car, the failure to give the signal will not generally afford basis for a charge of negligence. Under such circumstances, the failure to give the warning is said not to be a proximate cause of injury .^^ But, though the pedestrian is aware of the approach of the machine, if the driver intends to depart from the customary course of travel a warning may be required.®"* Sec. 449. Towing disabled vehicle. It sometimes happens, when a disabled automobile is towed through the streets by another vehicle, that a pedestrian seek- ing to cross the street trips over the connecting rope or cable 53. Selinger v. Cromer (Mo. App.), Pac. 932. 208 S. W. 871; Texas Motor Co. v. 58. Wall v. Merkert, 166 App. Div. Buffington (Ark.), 203 S. W. 1013; 608, 152 N. Y. Suppl. 293. Anderson v. Voetz (Mo. App.), 206 59. Bruce's Adm'r v. Callahan, 185 S. W. 584. Ky. 1, 213 S. W. 557; Collet v. Stand- 54. Collett V. Standard Oil Co., 186 ard Oil Co., 186 Ky. 142, 216 S. W. Ky. 142, 216 S. W. 356. 356; Herzig v. Sandberg (Mont.), 172 55. Darish v. Scott (Mich.), 180 N. Pac. 132. See also, Offerman v. Yellow W. 435. Cab. Co. (Minn.), 175 N. W. 537; 56. Coppock V. Schlatter, 193 HI. Feyrer v. Durbrow (Wis.), 178 N. W. App 255. 306. 57. Kessler v. Washburn, 157 HI. 60. Woodhead v. Wilkinson (Cal.), App. 532; Herald v. Smith (Utah), 190 185 Pac. 851, 10 A. L. E. 291. Collision With Pedestrian. 543 and is thereby injured." It is not negligence per se for one vehicle to draw another in this manner, and thus a pedestrian injured must show some neglect of duty on the part of those operating the machine.*'^ It is, of course, the duty of one tow- ing a vehicle to exercise reasonable prudence to avoid injury to pedestrians and other travelers upon the highway .^^ But the fact that some other course might have involved less dan- ger to other travelers is not necessarily decisive." Whether a warning of the situation to pedestrians is necessary depends upon the surrounding circumstances, such as the light at the place, the size and color of the rope, and other pertinent facts.'^'^ Under the New York statute relative to the licensing of chauffeurs, liability is not imposed merely because the driver of the rear car was not licensed, for even if the failure to have a license could be construed as violation of the statute, it was not a cause of the accident, where there is no proof of his incompetency.'^ Nor can negligence be based merely on the fact that a system of signals was not arranged so that the driver of the rear vehicle could signal the forward driver for the stopping of his machine.^^ And, under the statutes in some 61. Wolcott V. Renault Selling haps, to have moved the cars only be- Branch, 175 App. Div. 858, 162 N. Y. tween certain hours after midnight Suppl. 496. and before daylight. Again, it might 62. Steinberger v. California Elee. have been safer to move them one at Grarage Co., 176 Cal. 386, 168 Pac. a time and by their own power to 570; Wolcott v. Renault Selling have handled only one at a time with Branch, 223 N. Y. 288, 119 N. E. 556, a team, or to have moved them only on reversing 175 N. Y. App. Div. 858; certain streets that were not being Canfield v. New York Transp. Co., 128 greatly used by pedestrians. The law N. Y. App. Div. 450, 112 N. Y. Suppl. does not prescribe any particular 854 ; Wolcott v. Renault Selling method by which vehicles may bo Branch, 175 App. Div. 858, 162 N. Y. moved on the streets. But in moving Suppl. 496. them it imposes the duty of exercising 63. Steinberger v. California Elec. due or ordinary care." Garage Co., 176 Cal. 386, 168 Pac. 570. 65. Steinberger v. California Elec. 64. Musgrave v. Studebaker Bros. Co. Garage Co.. 176 Cal. 386, 168 Pac. 570. of Utah, 48 Utah 410, 160 Pac. 117, 66. Wolcott v. Renault Spiling wherein it was said: "It may well be Branch, 175 App. Div. 858. 162 N. Y. conceded that so far as pedestrians were Suppl. 496. concerned there may have been a safer 67. Musgrave v. Studebaker Bros, way to move automobiles through the Co. of Utah, 48 Utah. 410, 160 Pac. streets of the city, but that is not the 117. test. It might have been safer, per- 544 The Law of Automobiles. jurisdictions, the absence of lights on the rear vehicle is not necessarily negligence, for the statute may be construed as applicable only to those vehicles which are proceeding under their own motive power/^ But, when a car is being towed out of a garage across the sidewalk in the night time, the driver of the first car is under the duty of giving some warn- ing to persons traveling along the sidewalk who might be ex- pected to pass directly behind the first car.*^ In accordance with the foregoing rules, it has been held that there can be no recovery for the death of a pedestrian, who, while attempting to cross a city street, tripped over a tow line ten feet in length, where it appears that he stopped after a warning from the driver of the first vehicle and then at- tempted to pass between the two vehicles, although warned by the driver of the second to look out for the rope, and the driver of the second machine unsuccessfully attempted to avoid striking him by running his car on the sidewalkJ** So, too, where it appeared that an electric hansom was being 68. Musgravc v. Studebaker Bros. Co. of Utah, 48 Utah, 410, 160 Pac. 117. 69. Eapetti v. Peugeot Auto Import Co., 97 Misc. 610, 162 N. Y. Suppl. 133, wherein it was said: "Upon these facts, it is claimed that no prima facie case of negligence was made out. The basis of this contention is that it could not have been reason- ably anticipated by the chauffeur that the plaintiff would cross immediately behind the first automobile and trip over the tow-line under the circut"- stances existing. It seems to me that this is just what any person of ordinary intelligence would have anticipated. The automobiles were not going fast and it is a most common thing for pe- destrians to pass in front of on-coming automobiles proceeding slowly at cross- ings where there is as much of a margin of safety as twelve feet. Particularly is this so where, as at the entrances to garages and to many apartment houses and hotels, automobiles are permitted to cross the sidewalk. With the tens of thousands of automobiles that now swarm the city streets, it is second na- ture for a pedestrian to proceed on his way immediately after a blockading automobile has passed, and he has a right to do so unless halted by trafic rules or by the danger of a swiftly ap- proaching vehicle. Otherwise in a stream of slowly moving traffic pedes- trians would never get across the streets ftt all. So it cannot be said that the chauffeur could not reasonably antici- pate that the plaintiff and his com- panion who were halted on the side- walk by the first automobile, would not immediately proceed on their way once it had passed although another auto- mobile was approaching slowly twelve feet away." See also Young v. Herr- man, 119 N. Y. App. Div. 445, 104 N. Y. Suppl. 72, 192 N. Y. 554. 70. Wolcott V. Eenault Selling Branch, 175 App. Div. 858, 162 N. Y. Suppl. 496. Collision With Pedestrian. 545 towed by another hansom of the defendant with a rope six or seven feet in length, with a driver on a high seat on the rear of each machine, and that they stopped at a crossing at the signal of a traffic officer; that a pedestrian attempted to pass between the conveyances, when the driver on the rear car- riage called out a warning which the pedestrian testified she did not hear, it was held that the defendant was not guilty of negligence and not liable for injuries sustained by the pedes- trian in tripping over the rope.'^^ When, upon an automobile becoming disabled along the road, a guest therein procured a rope fifty feet long and connected the disabled car with the car of another person who had offered to assist them, and such guest thereupon entered the forward car and, while they were driving along the city streets, the forward car turned a corner but the disabled car was not turned so that the connect- ing rope swept a portion of the street and caused injury to a bicyclist, it was held that the guest was not liable for the in- juries, for assuming that he was guilty of negligence in fasten- ing the two cars, such negligence was not the proximate cause of the injury, but that the cause of the injury was the negli- gence of the rear driver in failing to make the turn.''^ And, where it appeared that the owner of an automobile sent his hired chauffeur with the machine to haul a disabled car to a garage and such chauffeur requested the owner's son to steer the rear vehicle while he drove the forward car, and while the two cars were stalled in a blockade in the street, the son gave a pedestrian permission to pass between, but the forward car moved ahead about a foot and she was tripped by the raising of the connecting rope, it was held that the son was not to be charged with negligence in failing to warn the chauffeur that the pedestrian was about to pass where no facts were shown which could have led the son to anticipate that the forward car would be moved; and that the chauffeur was not negli- gent in moving the machine where he was ignorant that the movement would likely cause injury to any one ; and that in 71. Canfield v. New York Transp. 72. Herome v. Hawley, 147 App. Div. Co., 128 N. Y. App. Div. 450. 112 N. 475, 131 N. Y. Suppl. 897. Y, Suppl. 854. 35 546 The Law of Automobiles. any event the son would not be liable for the negligence of the chauffeur as the relation of master and servant did not exist between them.''^ But where one crossing the street stumbled over the connecting rope and was killed by the second car, and it appeared that no warning was given of the tow and there was nothing in the condition or operation of the second car to show that it was not under its own power, it was held that the question of negligence was for the jury J* Sec. 450. Pleading. In an action by a pedestrian for injuries sustained by reason of a collision with a motor vehicle, as a general propo- sition, the complaint should allege the respect in which the defendant was negligent. That is to say, a complaint alleging generally that the plaintiff, without fault and while exercising due care, was injured through the negligence of the defendant, without specifying any duty owing by the defendant to the plaintiff, or the act or omission by the defendant which caused the injuries, would be demurrable.''^ But, under the liberal construction of pleadings in force in New York, it has been held that where the only allegations tending to charge the defendant with negligence are that the plaintiff was struck and injured in the public street by the defendant's automobile which was under his control and operated by him at the time, and that her injuries were caused solely by the negligence and carelessness of the defendant, the complaint is sufficient.''^ 73. Titus V. Tangeman, 116 N. Y. not thrown but slipped and fell in at- App. Div. 487, 101 N. Y. Suppl. 1000. tempting to avoid the machine, the 74. Wolcott V. Eenault Selling variance is not substantial. Ainslie v. Branch, 223 N. Y. 288, 119 N. E. 556, Biggs, 211 HI. App. 463. reversing 175 N. Y. App. Div. 858. 76. Peterson v. Eighimie, 175 App. 75. Silvia V. Scotten (Del.), 114 Atl. Div. 113, 161 N. Y. Suppl. 1065, 206; Peterson v. Eighimie, 175 App. wherein it was said: "The question Div. 113, 161 N. Y. Suppl. 1065. Com- depends upon whether the plaintiff has pare, Jackson v. Vaugh (Ala.), 86 So. charged the defendant with negligence 469, in operating the automobile. Of course Variance.— Where the complaint al- a complaint which merely alleged gen- leges that the machine struck the plain- erally that the plaintiff without fault tiff and threw him to the ground, and on his part and while exercising due the proof »hows that the plaintiff was care was injured through the negligence Collision "With Pedestrian. 547 General charges of negligence are deemed limited by those charges particularly alleged in the complaint.^ Thus, where, in an action to recover for injuries to the plaintiff who was run over by the defendant's electric cab while waiting for a street car to pass, the only specific charges of negligence on the part of the defendant were the excessive speed of the cab and the failure to give warning of its approach, it is rever- sible error for the court to refuse to charge in effect that, un- less the plaintiff establishes one of the two specific charges of negligence alleged, there can be no recovery.''^ A complaint in a negligence case alleging that plaintiff was traveling in a buggy driven by her uncle upon a public high- way, that she saw defendant approaching behind them in an automobile, and that when the machine was about 300 or 400 feet distant plaintiff requested her uncle to stop the horse so she could get out, and while getting out she signalled defend- ant to stop the automobile, which was then about 200 feet away and running slowly, and that plaintiff had crossed the highway and was standing on the other side of the traveled part, when defendant negligently ran the automobile against her, is not open to the objection that it leaves an inference of contributory negligence on plaintiff's part.'^ Sec. 451. Damapges. In an action by a pedestrian to recover damages resulting from his being struck by an automobile, it is said that the ver- dict should be for such sum as will reasonably compensate of the defendant without specifying general charge of negligence following any duty owing by the defendant to the relates to that, and in effect is a charge plaintiff or the act of omission or com- tliat the automobile was negligently mission by the defendant which caused operated by the defendant which is the injuries would be demurrable, for sufficient." it would merely state a conclusion of 77. Capell v. New York Transp. Co., law with respect to negligence on thr 150 N. Y. App. Div. 723, 135 N Y part of the defendant without setting Suppl. 691. forth the act of the defendant which it 78. Capell v. New York Transp. Co.. was claimed was negligently performed ; 150 N. Y. App. Div. 723, 135 N. Y. but here the particular act is stated, Suppl. 691. and it consists in the operation of the 79. Kinmore v. Cresse, 53 Ind. App. automobile along the street, bringing it 603. 102 N. E. 403. into collision with plaintiff, and the 548 The Law of Automobiles. him for his pain and suffering in the past and such as may come to him in the future resulting from the accident.^^ But damages are not generally permitted for mere fright un- attended by any physical injury.^^ In some jurisdictions, punitive damages are allowed where the operator of the motor vehicle was guilty of gross negligence.^^ g^t, in an action for the death of a pedestrian in a collision with an automobile, it was held that, there being no evidence of an intent to inflict the injury or of negligence of such a high degree as would be deemed equivalent to a wilful or wanton act, it being undis- puted that the defendant put on the brakes as soon as the intestate came into the range of defendant's vision, an in- struction that there could be no recovery under a count alleg- ing wanton and wilful conduct on the part of the defendant was proper.^ Sec. 452. Function of jury. In an action by a pedestrian for injuries sustained by a col- lision with a motor vehicle, the burden is on the plaintiff of establishing the negligence of the defendant, and ordinarily it is a question for the jury to determine whether he has suffi- ciently proved the issue.^* 80. Cecchi v. Lindsay, 1 Boyce (Del.) Transp. Co., 33 Cal. App. 24, 164 Pac. 185, 75 Atl. 376, per Hastings, J.; 342. judgment reversed in Lindsay v. Cec- Colorado. — Louthan v. Peet, 66 Colo, chi, 3 Boyce (Del.) 133, 80 Atl. 523. 204, 179 Pac. 135. 81. Bachelder v. Morgan, 179 Ala. Connecticut. — Butterly v, Alexander 339, 60 So. 815. And see section 356. Dallas, Inc., 93 Conn. 95, 105 Atl. 340. 82.. Williams v. Benson, 87 Kans. Illinois. — Rasmussen v. Drake, 185 421, 124 Pac. 531; Buford V. HopeweU, 111. App. 526; Smith v. Tappen, 208 140 Ky. 666, 131 S. W. 502. 111. App. 433. 83. Gordon v. Stadelman, 202 111. Iowa. — Brown v. Des Moines Steam App. 255. Bottling Works, 174 Iowa, 715, 156 N. 84. Arkansas. --Bon^ v. S. R. Thomas W. 829. Auto Co., 137 Ark. 217, 208 S. W. 306 ; Kentucky .—MhilSith. v. Sea, 144 Ky. Breashears v. Arnett, 222 S. W. 28 ; 749, 139 S. W. 930. Terry Dairy Co. v. Parker, 223 S. W. 6. Massachusetts. — Dudley v. Kinga- California. — Pemberton v. Army, 182 bury, 199 Mass. 258, 85 N. E. 76; Ras- Pac. 964; Webster v. Motor Parcel De- mussen v. Whipple, 211 Mass. 546, 98 livery Co. (Cal. App.) 183 Pac. 220; N. E. 592; Roach v. Hinchcliff, 214 Kuhns V. Marshall (Cal. App.), 186 Mass. 267, 101 N. E. 383; Brown v. Pac. 632; Potter v. Back County Thayer, 212 Mass. 392, 99 N. E. 237 j Collision With Pedestrian. 549 And, speaking in general terms, the plaintiff's contributory French v, Mooar, 226 Mass. 173, 115 N. E. 235; Cowles v. Springfield Gaslight Co., 234 Mass. 421, 125 N. E. 589: Noonan v. Leavitt Co. ]31 N. E. 297. Michigan. — Bouma v. Dubois, 169 Mich. 422, 335 N. W. 322; Czarniski V. Security Storage & Transfer Co., 204 Mich. 276, 170 N. W. 52; Barger v. Bissell, 204 Mich. 416, 170 N. W. 76: Patterson v. Wagner, 204 Mich, 593, 171 N. W. 356; Van Goosen v. Barium. 183 N. W. 8. Mirmesota. — Smith v. Bruce, 131 Minn. 51, 154 N. W. 659; Noltmier v. Rosenberger, 131 Minn. 369, 155 N. W. 618; Benson v. Lar?on, 133 Minn. 346, 158 N. W. 426; Johnson v. Johnson. 137 Minn. 198, 163 N. W. 160; Archer V. Skahen, 137 Minn. 432, 163 N. W. 784; Powers v. Wilson, 138 Minn. 407, 165 N. W. 231 ; Hefferon v. Reeves, 140 Minn. 505, 167 N. W. 423; Plasch v. Fass, 144 Minn. 44, 174 N. W. 438; 10 A. L. R. 1446; Allen v. -Johnson. 144 Minn. 333, 175 N. W. 545; Bnrsaw v. Plenge, 144 Minn. 459, 175 N. W. 1004; Gibson v. Grey Motor Co., — Minn. — , 179 N. W. 729. Missouri. — Hodges v. Chambers, 171 Mo. App. 563, 154 S. W. 429; Eisen- man v. Griffith, 181 Mo. App, 183, 167 S. W. 1142; LaDuke v. Dexter, — Mo. App. — , 202 S. W. 254; Brooks v. Harris, — Mo. App. — , 207 S. W, 293; Rubick v. Sandler, — Mo. App. — , 219 8, W. 401 ; Schinogle v, Baugh- man (Mo. App.), 228 S. W. 897. Nebraska. — Rule v. Claar Transfer A Storage Co., 102 Neb. 4, 165 N. W. 883. New Hampshire. — Hamel v. Pea- body, 78 N. H. 585, 97 Atl. 220. New York. — Wolcott v. Renault Sel- ling Branch, 223 N. Y. 288, 119 N. E. 556; Fitzgerald v. Russel. ,155 App. Div. 854, 140 N. Y. Suppl. 519; Haas V. Newbery, 190 App. Div. 275, 179 N. Y. Suppl. 816; Gindberg v. Ehret, 79 -Misc. R. 627, 140 N. Y. Suppl. 379; Baker v. Close, 137 N. Y. App. Div, 529, 121 N. Y. Suppl. 729; Miller v. N'ow York Taxicab Co., 120 N. Y. Suppl. 899. Nwth Dakota. — Vannett v. Cole, 170 N, W. 663. Oregon. — Ahonen v. Hrygzke, 90 Greg. 451, 175 Pac. 616. Pennsylvania. — Miller v. Tiedemann. 249 Pa. 234, 94 Atl. 8.35; Rowand v. Germantown Trust Co., 248 Pa. 341, 93 Atl, 1070; Edelman v, Connell, 257 Pa. 317, 101 Atl. 653; Schoepp v. Gerety, 263 Pa. St. 538, 107 Atl. 317; Lamont v. Adams Express Co., 264 Pa. 17, 107 Atl. 373; O'Brien v. Bieling, 110 Atl. 89; Reese v. Franco, 62 Pa. Super. Ct. 128; Bailey v. Borchers, 66 Pitts Leg. Journ. 530; Banks v. M. L. Shoemaker & Co., 260 Pa. 375, 103 Atl, 734; M'aynard v. Barrett, 261 Pa. 378. 104 Atl. 612; Petrie v. E, A. Myers Co. (Pa.), 112 Atl. 240; King V. Brillhart (Pa.), 114 Atl. 515. "Rhode Island. — Gouin v. Ryder, 87 Atl. 185; Thomas v. Burdick. 100 Atl. • 398; Doyle v. Holland, 100 Atl. 466. Texa.^. — Vespor v, lavender. — Tex. Civ. — , 149 S. W. 377; Merchants' Transfer Co. v. Wilkinson, — Civ. App. — , 219 S. W. R91 Utah. — Sorenson v. Bell. 51 Utah, 262. 170 Pac. 72. Wn-shwf/ton. — Hillebrant v. Manz. 71 Wash. 250, 128 Pac. 898: Coughlin v. Wooks. 75 Wash. 568, 13.5 Pac. 649: Brunrr v. Little. 97 Wash. 319. 166 Pac. 1166; Bulgere v. Olataka Yamoaka, 191 Pac, 7S6; Almberg v. Pielow, 194 Pac. 549: Tniva v. Good- year Tire & Rubber Co., 194 Pac. 386. Wi.sf>onsiv. — Ouellette v. Superior Motor R, 1373. All. 526, 19 Ann. Cas. 752. Contributory Negligence of Pedestrians. 561 companion of the driver, it was held that he was guilty of negligence.^^ Sec. 460. Duty to look for approaching automobiles — looking for vehicles on wrong side of street. As a general proposition, it is not contributory negligence per se for a pedestrian to look only in the direction from which vehicular traffic may be expected to move in accordance with the law of the road f and, if such a person looks in one direc- tion and judging the highway reasonably safe for passage starts across but is struck by a motor vehicle proceeding along the wrong side of the street, his negligence is not to be decided as a matter of law, but should be left for the jury.^^ One has the right, to some extent, to assume that the drivers of auto- mobiles will obey the recognized law of the road as to the side on which they will proceed.^^ Whether one is guilty of negli- 52 Fulton V. Mohr, 200 Mich. 538. 166 N. W. 851. 53. Buckley v. Sutten, 231 Mass. 604, 121 N. E. 527; New York Transp. Co. V. Garside, 157 Fed. 521, 85 C. C. A. 285. Contrary view.— "It is the duty of a foot passenger to look both ways be- fore starting to cross a street, particu- larly when, as in this instance, the street over which he intends to pass is a busy thoroughfare in the heart of the business district of a great city." Davis V. Breuner Co., 167 Cal. 683, 140 Pac. 586. 54. United (States. — New York Transp. Co. v. Garsidt>, 157 Fed. 521. 85 C. C. A. 285. California. — Lewis v. Tanner (Cal. App.), 103 Pac. 287. New YorTc. — Bradley v. Jacckol, 65 Misc. 509, 119 N. Y. Suppl. 1071: Hall V. Dilworth, 94 Misc. Rep. 240. 157 N. Y. Suppl. 1091. "Especially would it be unwarranted to hold that, when a person steps from tho curb of a city street, particularly one not constitut- ing an important artory of traffic, he must look, not onlv in the direction fiom wiiich vehicle.s may rightfully be traveling on that side of the .street, but that he must look back, as well, in or- der to be sure that nothing is ap- proaching from the rear on the side of the street prohibited by the rule of the road to vehicles traveling from that direction." Bradley v. Jaeckel, 65 Misc. 509. 119 N. Y. Suppl. 1071, per Oiegcrich, J. Vcnnont. — Aiken v. ]\Ietcalf, 90 Vt. 106. 97 Atl. 669. Washington. — Nickelson v. Fischer, 81 Wash. 423, 143 Pac. 1160. "Plain- tilT was not bound to anticipate a car or other vehicle eoniing south on the left-hand side of the street. There are certain rules or laws of the road, the observance of which or reliance upon become instinctive. The care of a pe- destrian, situated as plaintiff was, would be to look to her right for cars or vehicles, relying upon the fact that traffic upon that side of the street would be from that direction.'' Mickel- son v. Fischer. 81 Wash. 423. 142 Pac. 1160. 55. Section 473. 568 The Law of Automobiles. gence in failing to look for a violation of the law of the road, depends npon whether a person would reasonably apprehend danger in such direction, and the question is one which is left to the jury.^" When one is passing from the east side toward the west side of a street, after passing beyond the center line of the road, the jury may properly infer that a reasonably prudent man would shift his attention from cars approaching from the south to those approaching from the north.^' Sec. 461. Duty to look for approaching automobiles — ob- structed view. The law does not require one to do the impossible, and hence if a pedestrian's view in a certain direction is obstructed by a street car or other barrier, he is not necessarily guilty of con- tributory negligence because he fails to look in such direc- tion.58 Th^g^ where it appeared that a street railway pas- senger alighted from a car and passed to the rear thereof and in front of a car on the other track, and as she cleared the front of the latter car, was struck by an automobile driving close to the car without giving a signal, it was held that she was not guilty of negligence as a matter of law in failing to look in the direction whence the automobile came, for the street car obstructed any view in that direction.^^ But after passing an obstruction, reasonable care may require that the pedestrian look for danger.^^^ Thus, where a boy playing in the street started to cross and passed behind a wagon into the path of an automobile so near to it that the accident could not be avoided, it was held that he was negligent.^'' 56. Park v. Irbson (Cal. App.), 842, 161 N. Y. Suppl. 472; Kaplan v. 184 Pae. 428; Hall v. Dilworth, 94 Posner, 192 App. Div. 59, 182 N. Y. Misc. (N. Y.) 240, 157 N. Y. Suppl. Suppl. 612. ^Q9j 59. Sternfield v. Willison, 174 App. 57. Aiken v. Metcalf, 90 Vt. 196, 97 Div. 842, 161 N. Y. Suppl. 472. ^tl 669 59a. Moss v. Boynton (Cal. App.), 58. Regan v. Los Angeles Ice & Cold 186 Pac. 631. Storage Co. {Oal. App.). 189 Pac. 474; 60. Levesque v. Dumont, 116 Me. 25, Sternfield v. Willison, 174 App. Div. 99 Atl. 719. Contributory Negligence of Pedestrians. 569 Sec. 462. Duty to look for approaching automobiles — con- tinuing to look. It is very generally held that a pedestrian about to cross a street is not required to look continuously for the approach of motor vehicles.^^ If, as he leaves the curb, he looks for the approach of machines, he is not necessarily guilty of negli- gence in failing to keep a continuous outlook, or in looking a second time, but whether he has exercised a reasonable degree of prudence is a question for the jury.*^ Circumstances may exist, however, when one who fails to look a second time is guilty of negligence as a matter of law.*'^ Even if he sees an 61. United -Stages.— Phillips v. Taxi Service Co., 183 Fed. 869. affirmed 187 Fed. 734, 109 C. C. A. 483. California. — Blackwell v. Rcnwick, 21 Cal. App. 131, 131 Pac. 94; Bel- linger V. Hughes, 31 Cal. App. 464, 160 Pac. 838; Sheldon v. James. 175 Cal. 474, 166 Pae. 8, 2 A. L. R. 1493; Mc- Mullen V. Davenport (Cal. App.). 186 Pac. 796. Indiana. — Marker v. Oiuhl. 62 Ind. App. 177, 111 N. E. 457. "As a mat- ter of law, a pedestrian who is lawfully using a public thoroughfare need not be constantly looking or listening to ascertain if automobiles are approach- ing under the penalty that if he fails to do so and is injured that his failure conclusively charges him with negli- gence." Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457. lotoa. — Wine v. Jones, 183 Iowa, 1166, 162 N. W. 196, 168 N. W. 318. Kentucky. — Weidner v. Otter. 171 Ky. 167. 188 S. W. 335. Michigan. — Gerhard v. Ford Motor Co., 155 Mich. 618, 119 N. W. 904. 20 L. R. A. (N. S.) 232. "There is no im- perative rule of law requiring a pe- destrian when lawfully using the pub- lic ways to be continuously looking or listening to ascertain if auto cars are approaching, under the i>enalty that upon the failure so to do, if he is in- jured, his own negligence must be con- clusively presumed." Gerhard v. Ford Motor Co.. 155 Mich. 618, 119 N. W. 904. 20 L. R. A. (N. S.) 232 . Missouri. — Carradine v. Ford, 195 Mo. App. 684, 187 S W. 285; Ginter v. O'Donoghue (Mo. App.). 179 S. W. 732: T^ury v. Smith (Mo. App.), 198 S. W. 437. New Yorfc.— O'Neill v. Everet. 189 App. Div. 221, 178 N. Y. Suppl. 506. Pennsylvania. — Lewis v. Wood, 247 Pa. St. 545, 93 Atl. 605. Virginia. — Core v. Wilhelm. 124 Va. 150, 98 S. E. 27. Washington. — Yanse v. Seattle Taxi- cab & Transfer Co., 91 Wash. 415, 157 l^ac 107; Olsen v. Peerless Ixuindry, 101 Pac. 756. See also Crowl v. West Coast Steel Co.. 186 Pac. 866. 62. Taxi Service Co. v. Phillips, 187 Fed. 734, 109 C C. A. 482. affirming 183 Fed. 869; Harker v. Gruhl, 62 li.d. App. 177, 111 N. E. 457; Johnson v. Brastad, 143 Minn. 332. 173 N. W. 668: Ginter v. O'Donoghue (Mo. App.). 179 S. W. 732; Healy v. Shed- aker, 264 Pa. St. 512. 107 Atl. 842; Mackin v. Patterson (Pa.), 112 Atl. 738; Core v. Wilhelm. 124 Va. 150, 98 S. E. 27; Redick v. Peterson, 99 Wash. 368, 169 Pac. 804; Moore v. Roddie, 103 Wash. 386, 174 Pac. 648; Westcr\elfc V. Schwabacher (Wash.), 176 Pac. 545. 63. Moss v. Bo3mton (Cal. App.), J86 Pac. 631: Prince v. Claur^n-Flana- 570 The Law of Automobiles. automobile approaching he is not under the duty of continu- ally watcliing its approach, but he may assume that he has sufficient time to cross the street and that the machine will not run him down.^^ Just where he should look depends upon shifting conditions and is a question of fact rather than of law.*^^ He must, of course, exercise a reasonable degree of caution, and be on his guard to avoid injury and should use the same degree of alertness as a reasonably careful man would use.^^ If one seeking a street car steps off the curb after making observations concerning the traffic on the street and believing it to be safe, passes by one line and without taking further observations attempts to reach the further side of the other line, when he is struck by an automobile, his con- tributory negligence is a question for the jury.^^ And, where gan Brewery, 177 N. Y. Suppl. 168; Crowl V. West Coast Steel Co., 109 Wash. 426, 186 Pao. 866. 64. Section 467. 65. Mackin v, Patterson (Pa), 112 Atl. 738. 66. Lorah v. Rinehart. 24.3 Pa. St. 231, 89 Atl. 967. 67. Phillips V. Taxi Service Co, 183 Fed. 869, affirmed 187 Fed. 734, 109 C. C. A. 482; Klokow v. Harbaugh, 166 Wis. 262. 164 N. W. 999. "The point of the defendant below was that the law required the traveler across the street to look to tlie oast after passing behind the standing car which had obstructed his view, and that in not doing it negligence resulted as a matter of law. The learned judge, while dealing with this phase of tlie situation, and while explaining to the jury that there was no absolute rule of law, like that which applies to rail- road crossings, a place of universally recognized danger, where common pru- dence requires that travelers on the highway should use the precaution of looking, which applies itself as be- tween automobile highway travelers and pedestrians at highways or street crossings, and therefore that the ques- tion of fact was at large, to be deter- mined upon the usual rules governing questions of fact, made the remark of which complaint is made, which, road in connection with what preceded it, must be accepted as meaning, and we think on the whole that the jury must have 80 understood it, that if after looking at the sidewalk the plaintiff below walked in the ordinary way, turning his head as he went along as a man naturally does who goes along in an ordinary walk, he was not in fault as matter of law simply because he did not stop again and look around tbe side of the car. It was evidently the purpose of the learned judge to say that he would not be at fault as a matter of law. Indeed, it would seem quite clear that the purpose was to state that there was no rule of law which operated upon the situation, be- cause it was further explained by such expressions as, 'if tlie plaintiff while on the sidewalk looked, and then walked in the usual manner across tl e street, looking as he went, and then in an ordinary walk crossed to take the car,' he was not at fault simply be- cause he failed to stop again and look around. We think it reasonable to ac- Contributory Negligence of Pedestrians. 571 it appeared that a "jumper" on a delivery wagon, before jumping off, looked back and saw no automobile approaching, but was struck by an automobile while standing beside the wagon, the machine having a clear space of thirty feet within which to avoid him and running 100 feet farther before it was stopped, it was held that the negligence of the parties was properly submitted to the jury.^ Sec. 463. Duty to look for approaching automobiles — look- ing back. One traveling along or crossing a street is not necessarily required to look back for the approach of vehicles; if struck by an auto his negligence presents a jury question.®^ When one is walking along that part of the road used by motor vehi- cles, he is not required to look back constantly to see whether such a machine is approaching.™ And one crossing a street between the public crossings without looking back, is not necessarily guilty of negligence, whether he passes directly or diagonally.'^^ So, too, one walking along with a street car with the intention of boarding it, is not necessarily negligent in failing to look back for approaching automobiles.'^^ Thus, where it appeared that a woman was driving a cow and calf along a rural highway, and her entire attention was directed to such animals, so that she did not hear the automobile horn cept this, not as an instruction u] on Wood. 264 Piv. St. 98, 107 Atl. 658. the question of care, but as a state- 70. Rlaokwell v. Ran wick, 21 Cal. ment and an illustration to the jury App. LSI, 131 Pac. 94; Stone v. (iill that the question of the plaintiff's care (Oal. App.), 198 Pac. 640; McKenna v. was not controlled against him by a Lynch (Mo.), 233 S. W. 175; King v. rule of law which would of itself put Hrillhart (Pa.), 114 Atl. 515. "It him in fault. Taxi Service Co. v. ut constanly and n'i>eatedly to ob- 68. Gerhard v. Ford Motor Co., 15r, serv<- the approacli of possible vehicles Mich. 618. 119 N. W. 904, 20 L. R. A. from the rear where the drivers of such (N. S. ) 232. vehicles could plainly observe them in 69. Sheldon v. James, 175 Cal. 474, ti»>o to give warning, or to turn out 166 Pac. 82 A. L. R. 1493; Cusick v. and avoid a collision." Blackwcll v. Miller, 102 Kans. 663, 171 Pae. 599; Kenwick. 21 Oal. App. 131, 131 Pac. 94. Mears v. McElfish (Md.). 114 Atl. 71. Laniont v. Adams Express Co., 701; Creedon v. Galvin, 226 Mass. 140, ^«-* Pa. 17, 107 Atl. 373. 115 N. E. 307; Loury v. Smith (Mo. 72. Warner v. Bertholf, 40 Cal. App. App.), 198 S. W. 437; Anderson v. 776, ISl Pac. SOS. 572 The Law of Automobiles. if it was blown, and continued walking along the road with her back to the automobile until she was struck, it was held that there was no duty imposed on her of looking or listening for the approach of the automobile.''^ And where it appeared that one was walking along a sidewalk across a private drive- way which led into a building, it was held that he was not necessarily guilty of negligence because he failed to look back and see if an automobile was coming through the driveway.''* But, where a boy nearly twelve years old sitting on the tail- board of a moving wagon facing the rear, turned around, and, facing the driver, alighted and proceeded to cross the street in a diagonal direction forward toward his left, when he was struck by an automobile approaching from his rear, it was held that he was not in the exercise of due care.''^ And where one in crossing a street was struck by a machine backing into him, and it appeared that the machine made an extremely loud and raucous noise in backing which should have attracted his attention, but he did not look, the jury is justified in find- ing him guilty of negligence."'* Sec. 464. Failure to see approaching- machine after looking- — in general. Though it may be negligence per se for a pedestrian to start heedlessly across a street without looking in either direc- tion to see whether vehicles may be approaching,^^ yet, if he actually looks, his negligence in failing to see or appreciate the danger from a motor vehicle on the street may be a ques- tion for the jury.''^ In other words, the sufficiency of his con- 73. Dozier v. Woods, 190 Ala. 279, Minn. 332, 173 N. W. 668; Fittin v. 67 So. 283. Sumner, 176 App. Div. 617, 163 N". Y. 74. Tuttle V. Briscoe Mfg. Co., 190 Suppl. 443. See also Bruner v. Little, Mich. 22, 155 N. W, 724. 97 Wash. 319. 166 Pac. 1166. 75. Mills V. Powers, 216 Mass. 36, Automobile ahead of street car. — 102 N. E. 912, Where it appeared that the plaintiff 76. Sheldon v. James, 175 Oal. 474, while crossing the street was struck by 166 Pac. 8, 2 A. L. B. 1493. the defendant's automobile, which was 77. Section 459. proceeding without lights and at negli- 78. Bohm v. Dalton, 206 111. App. gent rate of speed, and the plaintiff 374; Perkins v. Holser (Mich.), 182 testified that he saw only a street car N. W. 49; Johnson v. Brastad, 143 approaching, and when on the track Contributory Negligence of Pedestrians. 573 duct in looking and failing to see the danger, is a question within the province of the jury.''^ If the accident happens in the night time, the absence of statutory or sufficient lights on the machine, may amply excuse the failure to observe its ap- proach.^" Testimony on the part of one injured that he looked for approaching vehicles before attempting to cross the street, but that he did not see an automobile until it collided with him in the street, is not inconceivable, and the credibility of the witnesses is for the jury.^^ But, if the collision occurs almost immediately after the plaintiff steps from the curb, the court may refuse to believe that he looked and failed to see the car, and may charge him with negligence as a matter of law.^2 Thus, it was held that a person who was run down by an automobile could not recover for the injuries received where he testified that before stepping upon the roadway he looked and did not see the vehicle, and he had an unobstructed view for such a distance, and was struck within such a short distance after stepping upon the roadway, that the testimony would imply that the automobile was going at an impossible was struck by the automobile which 59, 182 N". Y. Supp. 612; Jones v. then had come ahead of the car, it was Wiese, 88 Wash. 356, 153 Pac. 330. held that the failure of the plaintiflT "If respondent had looked at all, or to observe the approaching automobile taken the slightest heed to his sur was not so clearly contributory negli- roundings, the sufficiency of his look or gence as to become a question of law. act would have been for the jury; but, Fittin V. Sumner, 176 App. Div. 617, where absolutely no precaution is 163 N. Y". Suppl 443. taken, there is nothing for the jury to Reason for plaintiff's opinion that consider upon this point, and the law- he looked. — It is, perhaps, not proper decides against recoverj'." Jones v. for the plaintift' to testify on direct ex- Wiese, 88 Wash. 356. 153 Pac. 330. amination as to his reason for being 80. Beleveau v. S. C. Lowe Supply certaiii that he stoppetl and looked for Co., 200 IMass. 237, 86 N. E 301. vehicles before attempting to cross the 81. Ottaway v. Gutman. 207 Mich, street, the subject being more properly 393, 174 N. W. 127; Archer v. Skahen, a subject of cross-examination, but it 137 Minn. 432, 163 N. W. 784; Miller is not reversible error to permit the v. New York Taxicab Co., 120 N. Y. plaintiff to so testify on direct exami- Suppl. 899; Woods v. North Carolina nation, where the reason was that an Public Senice Co., 174 N. Car. 697, 94 accident had befallen his son while S. E 459. 1 A. L. R. 942. crossing the street a short time before 82 O'Reilly v. Davis, 136 N. Y. App. and that this was in his mind when he Div. 386, 120 N. Y. Suppl. 883; Stephen reached the crossing. Segerstrom v. Putney Shoe Co. v. Orrasby's Adm'r. Lawrence, 64 Wash. 245, 116 Pac. 876. (Va.), 105 S. E. 563. 79. Kaplan v. Posner, 192 App. Div. 574 The Law of Automobiles. rate of speed, as such testimony showed that the pedestrian did not look with the care required by law.^^ Where, in an action by one struck by an automobile while crossing the street, the defendant relies upon a plea of con- tributory negligence, and the plaintiff testified that before starting to cross the street she looked and listened to see if there were any vehicles and neither saw or heard anything that would prevent her from crossing over, and did not see the automobile which struck her nor hear any whistle, horn or unusual noise at all, an instruction that each is presumed and held by law to have seen the other if both had an un- obstructed view of the street for a sufficient distance and length of time to avoid a collision by the exercise of ordinary care, was held to be erroneous, as not only was there no evi- dence to support it, but it was a presumption against the evi- dence and the law does not presume facts which are disproved by the evidence.^ Sec. 465. Failure to see approaching machine after looking — view obstructed. "When the view of a pedestrian about to cross a street is obstructed, it is easier to excuse his failure to see an approach- ing motor vehicle.^ One crossing a street is not bound to anticipate that behind a wagon standing in the street is an approaching automobile which may turn past the wagon as the pedestrian crosses the street.^^ Thus, if a street car inter- venes so that one does not see an automobile approaching on the wrong side of the street, he is not guilty of contributory negligence as a matter of law.^' Where one alighting from a south bound street car passed to the rear of such car and in front of a car bound in the opposite direction, and as she 83. O'Reilly v. Davis, 136 App. Div. St. 425. 88 Atl. 656. (N. Y.) 386, 120 N. Y. Suppl. 883. See Elevated railroad pillars may con=^ti- also Suga v. Haase (Conn.). 110 Atl. tute such an obstruction as to carry 837. the case to the jury. Paplan v. Posner, 84. Hough V. Kobuseh Automobile 192 App Div. 59, 182 N. Y. Sup-pl. 612. Co., 146 Mo. App. 58, 123 S. W. 83 86. Pool v. Brown, 89 N. J. Law, See also Hillebrant v. Manz, 71 Wash. 314, 98 Atl. 262. 250. 128 Pac. 892. 87. Nickelson v. Fischer, 81 Wash. 85. See Kurtz v. Tourison, 241 Pa. 423, 142 Pac. 1160. Contributory Negligence of Pedestrians. 575 cleared the front of such car was struck by the defendant's automobile, which was driven through a narrow space be- tween the car and the curb without sounding a horn, it was held that the jury was justified in finding that she was free from contributory negligence.*^ Sec. 466. Failure to see approaching machine after looking — weather conditions. Weather conditions such as a blinding snow or rain storm may under some circumstances excuse the failure of a pedes- trian to see a motor vehicle until too late to avoid a collision therewith.^ Thus, where a pedestrian, in crossing a street in a blinding rain storm, looked up the intersecting street but failed to see a fast approaching automobile, or to distinguish its lights from other street lights, the question of contributory negligence is properly left with the jury.^^ Under such cir- cumstances, even his failure to look for an approaching vehi- cle might not take the case from the jury.^^ So, too, one is not guilty of contributory negligence as a matter of law. Avhen, owing to the storm and to an umbrella he is carrying, he fails to see an approaching vehicle.^^ And where, in an action to recover for personal injuries, it appeared that the plaintiff, having assisted friends to board a street car, started to cross the street ; that she looked up and down when crossing the first and second car tracks and saw nothing and was struck 88. Stemfield v. Willison, 174 App. view in that direction, and after she Div. 842. 161 N. Y. Suppl 472, where- had passed the cars, and before she in it was said: "There can be no could look, the auto hit her. She did doubt of the defendant's neglige:icc, look in all other directions. Of course and his attorney, while not conceding she was not compelled to accomplish negligence, makes but little of that the impossible. The law has never do- point in his brief; but he does contend manded that.'" vigorously that the plaintiff was pal- 89. See Booth v. Meagher, 224 Masa. pably guilty of contributory negli- 472. 113 N. E. 367. gence. He argues stoutly that she did 90 Bruhl v. Amderson, 189 111. App. not look south, the direction from 461. which the auto came. But this argu- 91. Bruhl v. Amderson. 180 III. App. ment seems to be utterly devoid of 461. force. She could not lonk south The 92. Elliott v. O'Rouke, 40 E. I. 187, trolley cars, pnrticularly the north- 100 Atl. 314. bound car, completel}' olxstructed her 576 The Law of Automobiles. by an automobile when she had nearly reached the curb, and the chauffeur testified that plaintiff ran from behind the street car in front of his machine, and that he did what he could to avoid her, but was unable to do so, while disinterested witnesses testified that the automobile was going from twenty to thirty miles an hour and made no effort to avoid the plain- tiff, who was walking, and that the impact threw her ten or fifteen feet, and it appeared that it was windy with a flurry of snow, both the negligence of the chauffeur and the con- tributory negligence of the plaintiff were held to be for the jury.^2 Sec. 467. Avoidance of machine which has been seen — right to cross street in front of approaching vehicle. One is not necessarily guilty of contributory negligence, if, when about to cross a street frequented by motor vehicles, he looks for approaching machines and sees one, but believes that it is safe for him to cross the street before the car passes over the .crossing.^* If the pedestrians on some busy streets were prohibited from passing over when a vehicle was in view, their right to cross the street would be practically abro- gated.^^ It is, of course, true that in certain cases a pedes- trian would exercise recklessness in attempting to cross in front of an approaching car; when such a situation is pre- sented, the court can find him guilty of negligence as a matter of law.^^ And, when one is starting back of a standing auto- mobile, he is not required to assume that the machine may be backed without warning, and he is not necessarily guilty of contributory negligence in going behind the car.®^ Wher< the 93. Baker v. Close, 137 App. Div. Meagher, 224 Mass. 472, 113 N. E. 367; (N. Y.) 529, 121 N. Y. Suppl. 729, O'Neill v. Everet, 189 App Div. 221, holding that under the circumstances 179 N. Y. Suppl. 506; Lamont v. it could not be said that had the plain- Adams Express Co., 264 Pa. 17, 107 tiff looked she would have seen the au- Atl. 373. tomobile, so as to be guilty of con- 95. Harker v. Gruhl, 62 Ind. App. tributory negligence as a matter of 177, 111 N. E. 457. law. 96. Folwell v. Demach Motor Car 94. Kessler v. Washbubm, 157 111. Co.\ 144 La. 783, 81 So. 313. App. 532; Harker v. Gruhl, 62 Ind. 97. Estrom v. Neumoegen, 126 N. Y. App. 177, 111 N. E. 457; Booth v. Suppl. 660. Contributory Negligence of Pedestrians. 577 plaintiff, as he was about to alight I'roiii a street car, saw an automobile about twenty feet away and immediately upon alighting he was struck by the automobile which was stopped before its front wheel had gone over him, it was held that the evidence was insufficient to establish his freedom from con- tributory negligence.^^ Sec. 468. Avoidance of machine which has been seen — con- tinual observation of approaching vehicle. Not only may one cross a street in front of a moving vehicle without his negligence being conclusively established, but it is also h^ld that he need not, as a matter of law constantly observe the vehicle.®^ AVTiether one is warranted, after see ing an approaching automobile a short distance away, know- ing that it will cross his line of travel, in not further watch- ing the approach thereof, may be a question on which minds may well differ, and presents a problem for the jury.' Du^ care may require that he look out for defects in the street, for other pedestrians, for street cars, and for other vehicles, and he should not devote all his faculties to the observation of a particular vehicle which he saw when he left the curb.^ He may properly assume that the approaching automobile will not exceed a reasonable rate of speed and that care will be used to avoid injury to persons in the street.^ r 98. Vilicki v. New York Transporta- law to look again. The law does not tion Co, 65 Misc. (N. Y.) 43, 119 N. even say that, because he sees a wagon Y. Suppl. 220. approaching he must stop till it haa 99. Bellinger v. Hughes, 31 Cal. passed. He may go forward until it is App. 464, 160 Pac. 838; Harker v. close upon him; and whether he is Gruhl, 62 Ind. App. 177, 111 N. E. nf^ligent in going forward will be a 457; Carradine v. Ford, 195 Mo. App. question for the jury." Knapp v. Bar- 684, 187 S. W. 285: Curro v. Barrett, rett, 216 N. Y. 226. 110 N. E. 428. 156 N. Y. Suppl. 289. "His duty is to 1. Bellinger v. Hughes, 31 Cal. Api>. use his eyes, and thus protect himself 464. 160 Pac. 838; O'Neill v. Everet. from danger. . . . The law does 189 App. Div. 221. 178 N. Y. Suppl. not say how often he must look, or pre- 506. cisely how far, or when, or from 2. See I.«wis v. Wood. 247 Pa. St. where. If, for example, he looks aa he 545, 93 Atl. 605. starts to cross, and the way seems 3. Keasler v. Wa^hlnirn, 157 111. clear, he is not bound as a matter of App. 532. And see section 472 37 578 The Law of Automobiles. Sec. 469. Avoidance of machine which has been seen — mis- calculation of danger. A pedestrian may not heedlessly step in front of a moving car;^ but some latitude is alloAved to a pedestrian who mis- calculates the danger of crossing a street in front of the ma- chine.^ His error in judgment does not preclude a recovery if the machine is approaching at an unlawful rate of speed.'' Whether he is guilty of contributory negligence in assuming that he caji cross in safety, is generally a question for the jury.'' Thus, where it appeared that an elderly woman in broad daylight attempted to cross a street in front of a heavy motor truck then fifty feet away, it was held that her negli- gence was a question for the jury.^ But, where it appeared that a plaintiff and two other ladies were crossing a corner diagonally, when they saw a taxicab coming and stopped to let it pass, but the plaintiff becoming nervous lost her presence of mind and broke away from her companions and attempted to pass ahead of the machine when it was close upon her, it was held that a verdict for the defendant was proper.® Where 1 4. Bruce's Adm'r v. Callahan, 185 street, even at a regular crossing, when Ky. 1, 213 S. W. 557; Rochfeld v. Cler- a. motor truck, going 'fast' was ap- kin, 98 Misc. (N. Y.) 192, 162 N. Y. proaching at a distance of only two Suppl. 1056; Shott V. Korn, 1 Ohio houses, say fifty feet away, was guilty App, 458, 34 Ohio Circuit Eep. 260; of contributory negligence as a matter Todesco V. Maas, 23 D. L. R. (Canada) of fact. But the question is whether 417, 8 A. L. R. 187, 7 W. W. R. 1373. the plaintiff was guilty of contributory 5. Russell V. Vergason (Conn.), Ill negligence as a matter of law. It has Atl. 625; Roohfeld v. Clerkin, 98 Misc. been very pointedly stated by the (N. Y.) 192, 162 N. Y. Suppl. 1056; Court of Appeals, and I think it is Curro V. Barrett, 156 N. Y. Suppl. 289. generally understood by the bar, that See also Grerhard v. Ford Motor Co., in these street crossing eases the ques- 155 Mich. 618, 119 N. W. 904, 20 L. R. tion of the pedestrian's contributory A. (N. S.) 232. negligence is generally one of fact. Of 6. Kessler v. Washburn, 157 111. course there are certain extreme cases App. 532; Emery v. Miller, 231 Mass. where a pedestrian steps directly in 243, 120 N. E. 654. front of a vehicle and in eflfect runs 7. Section 487. into it, in which the court is justified 8. Rothfeld v. Clerkin, 98 Misc. (N. in determining the question of the pe- Y.) 192, 162 N. Y. Suppl. 1056. where- deatrian's negligence as a matter of in it was said: "Of course it might law. These cases, however, are rare." well have been found by a jury that 9. Brand v. Taxi Cab Co., 129 La. the plaintiff in attempting to cross the 781, 56 So. 885. Contributory Negligence of Pedestrians. 579 a boy, who was riding in a cart proceeding on a street car track, jumped from the rear end, and, seeing an approaching automobile, either walked or ran into its side, a verdict for the injuries will be set aside and a new trial granted on the ground that it was contrary to the evidence, plaintiff having failed to sustain the burden of proof that his conduct did not in any way contribute to the accident.^** Sec. 470. Avoidance of machine which has been seen — state- ments of companion as to safety in crossing-. Where, in an action for injuries to a pedestrian struck by an automobile, there was evidence that he and his companions, while on the street, took precautions against injury, evidence that just before the accident one of the companions looked back, and stated that two street cars were coming, and that he looked back a second time, and said that if they hurried they could catch the second car, was admissible as bearing on the plaintiff's case, on the jury finding that the plaintiff was justified in relying on his companions." Sec. 471. Reliance on proper conduct by automobilist — exer- cise of due care by chauffeur. In the absence of anything appearing to the contrary, a traveler in attempting to cross a street has a right to assume that others using the highway will exercise a proper degree of care to avoid injuring him.^^ His failure to anticipate neg- 10. Smith V. Listman, 96 Misc. Rep. App. 717. 175 S. W. 244. 285, 160 N. Y. Suppl. 129. New Jersey.— Pool v. Brown, 89 N. 11. Beleveau v. S. C. Lowe Supply J. Liaw, 314, 98 Atl. 262. Co.. 200 Mass. 237, 86 N. E. 301. New yorfc.— Buscher v. New York 12. Connecticut. — Russell v. Verga- Transportation Co., 106 N. Y. App. son, 111 Atl. 625. Div. 493. 94 N. Y. Suppl. 798; Caesar Indiana. — Cole Motor Co. v. Lu- v. Fifth Ave. Stao:e Co, 45 Misc. 331. dorff, 61 Ind. App. 119, 111 N. E. 447: 90 N. Y. Suppl. 359. Gardner v. Vance, 63 Ind. App. 27, 113 Pennsylvania. — Ivpwis v. Wood. 247 N. E. 1006. Pa. St. 545. 93 Atl. 605; Oelrioh v. Massachusetts. — Rogers v. Phillips. Kent. 259 Pa. 407, 103 Atl. 109; 206 Mass 308, 92 N. E. 327, 28 L. R. .Vlackin v. Patterson (Pa.), 112 Atl. A. (N. S.) 944; Buonicouti v. Leo. 234 738. "It is.no defense for one who in- Mass. 173. 124 N. E. 791. .jures another by his negligent act that Missouri. — Cool v. Peterson, 189 Mo. (he injured party did not anticipate 580 The Law of Automobiles. ligence on the part of the driver of a motor vehicle does not render him negligent as a matter of law.^^ He may assume that the driver will operate his car not faster than a reason- able rate of speed," and that he will keep a lookout for foot travelers and have the machine under reasonable control when he reaches a crossing where pedestrians may be passing." When one is standing in the street in a place where he has a right to be, or is walking along the highway, he can properly assume that the driver of a motor vehicle will not run him down, but will avoid contact with him.^^ And he may also the wrongdoer •would not observe or- dinary care, the failure of which re- sulted in the accident. The failure to anticipate negligence which results in injury is not negligence, and will not defeat an action for the injury sus- tained. A party is not bound to guard against the want of ordinary care on the part of another; he has a right to presume that ordinary care will be used to protect him and his property from injury." Lewis v. Wood, 347 Pa. St. 545, 93 Atl. 605. Rhode Island. — ^Marsh v. Boyden, 33 R. L 519, 83 Atl. 393, 40 L. R. A. (N. S.) 583. U.tah. — Ferguson v. Reynolds, 176 Pac. 367. Vermont. — Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669. "Moreover, the way- faring man has a right to assume, nothing to the contrary appearing, that the automobile driver will obey the law. . . . And this means, when applied to the case in hand, that the plaintiff had a right to assume that the defendant or any other automobile driver would not drive 'in a careless or negligent manner.' . . . He also had the right to assume that the usual road rules would be observed, and that automobiles would not, in ordinary cir- cumstances, take the left-hand side of the roadway." Aiken v. Metealf, 96 vt. 196, 97 Atl. 669. Canada. — Toronto General Trusts Corp. v. Dunn, 20 Manitoba (Can.) 413'. 13. McMullen v. Davenport (Cal. App.), 186 Pac, 796; Owens v. W. J. Burt Motor Car Co. (Cal. App.), 186 Pac. 831; Rolfs v. Mullins, 179 Iowa, 1333, 163 N. W. 783; Kaminski v. Fournier (Mass.). 136 N. E. 279; Papic v. Freund (Mo. App.), 181 S. W. 1161; Oelrich v. Kent (Pa. St.), 103 Atl. 109. "A person lawfully in a public highway may rely upon the ex- ercise of reasonable care by drivers of vehicles to avoid injury, and the fail- ure to anticipate the omission of such care does not render him negligent." Lewis v. Woo.d, 347 Pa. St. 545, 93 Atl. 605. 14 Section 473. 15. McKenna v. Lynch (Mo.), 233 S. W. 175; Heckman v. Cohen, 90 N. J. L. 323, 100 Atl. 695 ; Jessen v. J. L. Kesner Co., 159 N. Y. App. Div. 898, 144 K Y. Suppl. 407. 16. Wells v. Shepard. 135 Ark. 466, 205 S. W. 806; Regan v. Los Angeles Ice & Coal Storage Co. (Cal. App,), 189 Pac. 474; Gardner v. Vance, 63 Ind. App. 27, 113 K E. 1006; Burns v. Oliver Whyto Co., 331 Mass. 519, 121 N. E. 401: Moffatt v. Link (Mo. App.) 229 S. W. 836; Dervin v. Frenier (Vt.), 100 Atl. 760; Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890: Stephenson v. Parton, S9 Wash. 653, 155 Pac. 147; Yanase v. Seattle Taxicab & Transfer Co.. 91 Wash. 415. 157 Pac. 1076. Contributory Negligence of Pedestrians. 581 assume that the driver of an approaching machine will give a signal of warning so that an accident may be avoided." One crossing a street is under no legal duty to anticipate that there is an approaching automobile behind a wagon which he sees ; and, even though such duty of anticipation could be im- posed on the foot traveler, he is not required to assume that the automobile may attempt to pass the wagon on the left side of the street at a place where persons may be crossing the street.^^ Sec. 472. Reliance on proper conduct by automobilist — ex- cessive speed. A person crossing a street may assume, when he has no in- formation to the contrary, that the driver of a motor vehicle will not operate his machine at a speed in excess of statutory or municipal regulations or at an unreasonable speed under the circumstances, and is not necessarily guilty of contribu- tory negligence because he relies on such assumption." When, however, the pedestrian has knowledge that an automobile is approaching at an excessive speed, the situation is changed. He is not entitled to rely on an assumption which he knows is contrary to the actual condition, but must exercise reason- able care under the circumstances.^'^ Where an ordinance makes it unlawful for the driver of an automobile to pass over a crossing at a greater speed than four miles an hour, a pedes- trian upon a crossing is entitled to the prptection afforded thereby.^^ 17. DtTvin v. Frenier, 91 Vt. 398, N. E. 369; Kaminski v. Fournier 100 Atl. 760; Toronto General Trusts (Mass.), 126 N. E. 279: Franey v. Corp. V. Dunn, 20 Manitoba (Canada) Seattle Taxicab Co., 80 Wash. 396. 141 "412. Pac. 890. See also AtcKicrnan v. Leb- 18. Pool V. Brown, 89 N. J. Law. maier, 85 Conn. Ill, 81 Atl. 969. 314, 98 Atl. 262. 20. Rump v. Woods. 50 Ind. App 19. Park v. Orbison (Cal. App.), 347, 98 N. E. 369; Becker v. West Side 184 Par. 428; Cole Motor Co. v. Lu- Dye Works (Wis.), 177 N. W. 907. dorff, 61 Ind. App. 119, 111 N. E. 447; 21. Ludwifj v. Dumas, 72 Wa<«h. 68. Rump V Woods. 50 Ind. App. 347, 98 129 Pac, 903 582 The Law of Automobiles. Sec. 473. Reliance on proper conduct by automobilist — obedience to law of road. As a general proposition, a pedestrian is not required to anticipate that other travelers will violate the law of the road.22 The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which comes to him only from violation of law or duty h\ such other person.^^ Until appearances are to the contrary, he may rely on the assumption that vehicles will travel only on the right-hand side of the road.^* When leav- ing the curb on one side of the street, generally speaking, he need be on the lookout for automobiles coming from but one direction; and when he passes over next to the curb on the other side of the street, he need look only in the opposite direction.^^ Evidence that the vehicle causing the injury was proceeding along the wrong side of the street is, therefore, admissible, not only on the theory that it tends to show negli- gence on the part of the driver, but also on the ground that it relevantly bears on the contributory negligence of the per- son injured.^^ A pedestrian is not required to anticipate that an automobile proceeding along behind a wagon will turn to 22. Harris v. Johnson, 174 Cal. 55, Atl. 87. "Plaintiff was not bound to 161 Pac. 1155. anticipate a car or other vehicle com- 23. Harris v. Johnson, 174 f:al. 55, ing south on the left-hand side of the 161 Pac. 1155. street. There are certain rules or laws 24. Harris v. Johnson, 174 Cal. 55, of the road, the observance of which 161 Pac. 1155; Park v. Orbison (Cal. or reliance upon become instinctive. App ), 184 Pac. 428; Lewis v. Tanner The care of a pedestrian, situate as (Cal. App.), 93 Pac. 287; Trzetia- plaintiff was, would be to look to her towski v. Evening American Pub. Co., right for cars or vehicles, relying upon. 185 111. App. 451; Unmacht v. Whit- the fact that traffic upon that side of ney (Minn.), 178 N". W. 886; Hall v. the street would be from that direc- Dilworth, 94 Misc. (N. Y.) 240, 157 tion." Mickelson v. Fischer. 81 Wash. N. Y. Suppl. 1091; Aiken -" Metcalf. 423, 142 Pac. 1160. 90 Vt. 196, 97 Atl. 669; Mickelson v. 25. Lewis v. Tanner (Cal. App.), Fischer, 81 Wash. 423. 142 Pac. 1160. 193 Pac. 287; Holdman v. Witmer, 166 See also Davis v. Breuner Co., 167 Cal. Iowa, 406, 147 N. W. 926; Aiken v. 683, 140 Pac. 586; New York Transp. Metcalf, 90 Vt. 196, 97 Atl. 669. Co. V. Garside. 157 Fed. 521, 85 C. C. 26. Devine v. Ward Baking Co., 188 A. 285; Benoit v. Miller (R. L), 67 111. App. 588. Contributory Negligence of Pedestrians. o83 the left to i)ass such wagon at a place where foot travelers may be crossing the street,^ or that two passing machines will be close together in violation of a statute requiring vehi- cles passing in opposite directions to give as nearly as pos- sible one-half of the road.^^ A pedestrian is not entitled to rely on obedience by a motorist to a traffic signal when it is apparent that the motorist is not going to obey the signal.^ Sec. 474. Reliance on proper conduct by automobilist — place reserved for pedestrian. One who is standing on the sidewalk or other place especi- ally reserved for the use of foot travelers, may properly as- sume that he will not be struck by a vehicle.^*^ A pedestrian on a sidewalk has a right to assume that the sidewalk is safe from automobiles crossing it, although he has impaired sight and hearing.^^ When one has reached a sidewalk, he has every reason to suppose, as a reasonably prudent person, that he has secured a place free from danger from contact with an automobile.^^ So, too, when one is standing in a ''safety zone," he has every reason to believe that he will not be struck by a motor vehicle, and he may rely upon the apparent safety of such a place.^^ Sec. 475. Reliance on proper conduct by automobilist — per- son passing" on or off street car. It is the duty of the operator of a motor vehicle, when pass- ing a street car, to anticipate that persons will be passing on and off the car; and a passenger alighting from the ear or boarding it has the right to assume that the operator will 27. Pool V. Brown, 89 N: J. Law, 31. Crawl.y v. .Jermain 218 Ml. 314, 98 Atl. 262. App. 51. 28. OflF V. Crump, 40 Cal. App. 173, 32. Brown v. Des .Moines Steam 180 Pac. 360. Bottling Works, 174 Iowa. 715, 156 29. O'Brien v. Bieling (Pa), 110 N. W. 829. Atl. 89. 33. Crombie v. O'Brian, 178 App. 30. See Young v. Bacon (Mo. App), Div. 807, 165 N". Y. Suppl. 858. See 183 S. W. 1079. See also Rearaes v. also Church v. Lamed, 206 Mich. 77, Heymanson, 186 Wash. . 325, 186 Pac. 172 N. W. 551. 325. 584 The Law of Automobiles. exercise care to avoid injury to him.^* The passenger is, therefore, not generally required to look for approaching motor vehicles, but the drivers thereof should exercise cau- tion to avoid striking the passenger.^^ One getting off a street car may direct his attention toward alighting with safety and may watch his step rather than direct his atten- tion to vehicles along the street.^^ Thus, it is generally held that where a street railway passenger is struck by an auto- mobile Avhile he is getting on or off the car or while he is crossing the street to or from the curb, his contributory neg- 34. United States. — New York Transp. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285. ArTcansas. — Minor v. Mapes. 102 Ark. 351, 144 S. W. 219. Connecticut. — Naylor v. Havilaud, 88 Conn. 256, 91 Atl. 186. Illinois. — Kerchner v. Davis, 183 111. App. 600; Horn v. Berg, 210 111. App. 238. Massachusetts. — Harnett v. Tripp, 231 Mass. 382, 121 N. E. 17. Minnesota. — Kling v. Thompson-Mc- Donald Lumber Co., 127 Minn. 468, 149 N. W. 947; Zimmerman v. Med- nikoif, 165 Minn. 333, 162 N. W. 349. Missouri. — Bongner v. Ziegenheim, 165 Mo. App. 328, 147 S. W. 182. New Jersey. — Galenter v. Peti. 114 Atl. 408. New York. — Brewster v. Barker, 129 N. Y. App. Div. 907, 113 N. Y. Suppl. 1026; Kalb v. Redwood, 147 N. Y. App. Div. 77, 131 N. Y. Suppl. 789: Co well V. Saperston, 149 App. Div. 373^ 134 ISr. Y. Suppl. ^84; Caesar v. Fifth Ave. Stage Co.. 45 Misc. 331. 90 N. Y. Siippl. 359. Bhodc Island. — Marsh v. Boyden. '.3 R. I. 519, 82 Atl. 393. Texas. — Ward v. Oathey ((iiv. App.), 210 S. W. 289. Washington. — Yanase v. Seattle Taxicab & Transfer Co., 91 Wash. 415. 157 Pae. 1076. Wisconsin. — Klokovv v. Harbaugh. 166 Wis. 262, 164 N. W. 999. '.' Schenck, 25 Mont. L. Rep. 18. See also Maryland Ice Moving street car. — There is, how- ever, no duty on the driver of an au- tcnnobile to anticipate that persons may jump from a moving street car. and saich a person cannot assume that the driver will have his car under such control as to avoid an accident under the circumstances. Brown v. Bra- shear, 22 Oal. App. 135. 133 Pac. 505: Starr (Pa.) Cream Co. v. Woodburn, 133 Md. 295. 105 Atl. 269. 35. McGourty v. De Maroo. 200 Mass. 57, 85 X. E. 891; Liehecht v. Crandall, 110 Minn. 454. 126 N. W. 69. 36. '"Besides looking in the direction of the automobile, the plaintiff had other important duties to perform tf> protect himself from danger. While descending the steps he had necessarily to give his attention to them and to the place on the ground on which ho was to alight. An equally imperative duty as he was leaving the car and moving across the street required the ] laintifF to look to the rear of the ear for approaching automobiles and other vehicles. Had he disregarded this duty f.nd been struck by a horse-drawn ve- hicle and injured, his negfligence would have prevented a recovery." Lewis v. Wood, 247 Pa. St. 545. 93 Atl. 605. And see Lithecht v. Crandall, 110 Minn. 454, 126 N. W. 69. wherein it was said: "While it is true that he did not, as he stepped from the car, Contributory Negligence of Pedestrians. 585 ligence is a question for thfe jury." The passenger is, of course, required to exercise reasonable care under the circum- stances.^^ And the passenger may pass around the rear of the street car and attempt to cross the street on the left side of the car, and he may assume that automobilists will exercise reasonable care to avoid a collision with him.^ His position in such a case is very strong when the automobile which struck him was proceeding along the wrong side of the street.*** And, particularly, when it is provided by statute that auto- mobiles shall not pass a street car until it has started and the passengers have crossed the street, the passengers have a right to assume that chauffeurs will obey the statute; and contributory negligences will not be charged against one in- jured merely because he has relied on obedience to the stat- ute.^^ Even if a passenger before alighting sees an automo- look in the direction from which the automobile was approaching, following the car, this alone is not suflieient to charge him, as a matter of law, with contributory negligence. His attention at the moment was directed toward alighting from the car in safety, and lie was not required to anticipate the iicglijTonce of defendant in driving his automobile at a reckless rate of speed upon him." 37. Mann v. Scott, 180 Cal. 550. 182 Pac. 281; Naylor v. TTaviland, 88 Conn. •-'56, 91 Atl. 186 Kasmussen v. Drake, J 85 111. App. 526; Walmer-Roberts v. Hennessey (Iowa), 181 N. W. 798; Metzler v. Gould (Me), 110 Atl. 686; HeflFeron v. Reeves. 140 Minn. 505, 167 N". W. 423; Joyce v. Smith (Pa.), 112 Atl. 549: Michalsky v. Putney, 51 Pa. Super. Ct. 163. 38. Becker v. West Side Dye Works (Wis.), 177 N. W. 907. 39. Hall V. Dilworth, 94 Misc. (N. Y.) 240. 157 N. Y. Suppl. 1091. See also Sternfeld v. Willison. 174 N. Y. App. Div. 842, 161 N. Y. Suppl. 472. Duty to look for machine after pass- ing in front of street car. — Wliere one could have easily seen an approaching motor vehicle after passing in front of a standing street car, but he failed to look for approaching vehicles, it was lield that he was guilty of negligence. Di Stephano v. Smith (R. I.). 102. Atl. 817. 40. Link v. Skeeles, 207 111. App. 48; Delohery v. Quinlan, 210 111. App. 321; FTall V. Dilworth, 94 ]Misc (N". Y.) liO, 157 N. Y. Suppl. 1091. 41. Mann v. Scott, 180 (Cal.) 550. 182 Pac. 281; Zimmerman v. Med- nikofT, 165 Minn. 333, 162 N. W. 349; Lewis V. Wood, 247 Pa. St, 545. 93 Atl. 605; Frankel v. Norris. 252 Pa. 14, 97 Atl. 104. "Of course, if he saw the machine approaching at a high rate of speed, he was not justified in stepping in front of it, but. on th«' other hand, ii he was looking in the op- ^posite direction for an approaching ve- hicle, as he was required to do. he could act on the assumption that the driver of the automobile would olvy the law by stopping until the street car was again in motion, and he wouM not be negligent in proceeding across the street." I^ewis v. Wood, 247 Pa. St. 545. 93 Atl. 605. 586 The Law of Automobiles. bile approaching, he may assume in such a case that it will obey the statute and stop before passing the street car.^^ Where a street car conductor testified that he stepped off the front end of his car while it was standing in the street for the purpose of going to the rear end thereof and that as he stepped off, he was struck by an automobile proceeding about three feet from the track at a rate of from three to five miles an hour, although there was a clear space of from twelve to fifteen feet between the track and the curb, it was held that he was entitled to rely on the presmnption that the drivers of vehicles would exercise reasonable care to avoid causing injury to persons in the street, and that his failure to anticipate the omission of such care did not render him negligent as a matter of law.*^ And, in an action by a motor- man against the owner of an automobile to recover damages for personal injuries, the questions of defendant's negligence and the plaintiff's contributory negligence were held to be for the jury, where the evidence tended to show that the plain- tiff alighted from his car, and while it was not in motion looked up and down the street, then passed behind the car to cross to the other side of the street and was immediately struck on the leg by defendant's automobile, which was being driven at a high rate of speed, within a few inches of the side 42. Lewis v. Wood, 247 Pa. St. 545, ing in the direction in which hia car 93 All. 605. was to proceed, as any person would 43. Caesar v. Fifth Avenue Coach ordinarily do under the same circum- Co., 45 M'isc. (N. Y.) 331, 90 N. Y. stances, and so did not observe the au- Suppl. 359, whereinit was said: "The tomobile. According to the statem«nts question of the plaintiff's contributory of his witnesses the automobile was negligence was also properly left to the then from twelve to fifteen feet distant jury. Assuming that the car was at to the north, and not brea^ of the car, a standstill, as the jury could very well with tlie clear space already alluded, find from the evidence, the operator of to west of the track. He had a right the automobile could reasonably apprc- tc rely upon the exercise of reasonable hend the departure of persons from the rare of drivers of vehicles, to avoid ear. The plaintiff Avas at all times en- causing injury to persons in t)ie street, gaged in the performance of hi« duty uiid his failure to anticipate the omis- and this required him to go from t' e sion of such care did not render him forward end of the ear to the rear. iKgligent." He chose the street as a means, look- Contributory Negligence of Pedestrians. 587 of the car, and in a narrow space between the car and the curb.''^ But where a passenger alights from a street car, it is his duty to look where he is going, and not to rush blindly into danger. Such a person is not relieved from the charge of contributory negligence if, without looking, he takes two steps from the car and then suddenly, seeing an automobile, stops and is run down and injured.*^ Sec. 476. Stopping in street. One is not necessarily guilty of contributory negligence be- cause he is standing in the street when he is struck by a motor vehicle. When one is lawfully standing in the street, and no obstacle intervenes between such person and the driver of an approaching automobile, the duty is imposed on the driver to avoid a collision and not run down the foot traveler.^*' A person has the right to use the street for the purpose of boarding a street car,^^ or waiting for a train ;*^ and his con- duct in standing in the street for such a purpose, is not negli- gence per se.^^ While such a person cannot be entirely ob- livious to his surroundings, he is not necessarily guilty of negligence because he does not look or see or hear the ap- proaching machine.^ Nor is one negligent in stopping in the street to permit a street car to pass, for the law does not re- quire one to return to the sidewalk under such circumstances.^ 44. Dugan v. Lyon, 41 Pa. Super Ct. Works, 157 Wis. 531. 147 N. W. 1014. 5'^* 50. Walmer-Roberts v. Hennessey 45. Kauffman v. Nelson, 225 Pa. St. (Iowa), 181 N. W. 798: Arseneau v. 174. 73 Atl. 1105. Sweet. 106 Minn. 257, 119 N. W. 46. 46. Kathmeyer v. Mehl (N. J.). 60 Violation of ordinance.— ^Vliere a Atl. 40; Lewis v. Seattle Taxicab Co., person was struck while lie wa> gather- 72 Wash 320, 130 Pac. 341; Stephen- ing kindling wood which had been son V. Parton, 89 Wash. 653. 155 Pac. dumped near the curb, it was held that 147 ; Ouellette v. Superior Motor & M. he was barred from recovery on account Works. 157 Wis. 531, 147 N. W. 1014. of his violation of an ordinance re- And see section 439. quiring the display of a light over 47. Wellington v. Reynolds, 177 Ind. such a pile of wood. Holut v. Coot- 549. 97 N. E. 155. ware, 169 Wis. 176. 170 N. W. 939 48. Fong Lin v. Robert, (C.nJ. App.). 51. Arnaz v. Forbes (Cal. App. >. 197 195 Pac. 437. Pac. 364; Melville v. Rollw.igr. 171 49. Ouellett<> v. f?uperior Motor 4 M. Ky. 607. 188 S. W. 638 588 The Law of Automobiles. He may, however, be guilty of iiegiigeiiee where he starts back to the curb and does not look for approaching vehicles.^^ So, too, a pedestrian is not negligent per se because he stands in the road conversing with the driver of a team,^^ or because he is standing beside a wagon of watermelons mth the inten- tion of purchasing one.^* And, in case of rain, an automo- bilist may stop his machine and get out to put up the top; and, if he is struck by another machine while thus working in the road, and it appears that there is plenty of room for the latter to avoid the injury, contributory negligence is not to be charged as a matter of law.^^ Similarly, if an automo- bilist or his guest gets out of his machine because of a punc- tured tire or other difficult}^, while standing in the road by the machine, he is not required to anticipate and be on his guard to avoid injury from another machine.^^ When one standing in the street heedlessly steps back in front of an approaching vehicle, he may be guilty of negligence as a matter of law;^'' but, when a collision results because both the pedestrian and the operator of the machine changed their course in several different ways to avoid the impending col- lision, the foot traveler is not necessarily guilty of negli- gence.^^ Where one crossing a street in a northwesterly di- rection toward an alley observed an automobile approaching from the Avest, and on reaching the curb he noticed that the automobile was about to turn into the alley, and instead of 52. Todesco v. Maas, 23 D. L. R. 54. Wells v. Shepard. 135 Ark. 466, (Canada) 417, 8 A. L. E. 187, 7 W. W. 205 S. W. 806. R. 1373. 55. Deitchler v. Ball, 99 Wash. 483, 53. Kathmeyer v. Mehl (N. J.), 60 170 Pac. 128. Atl. 40. wherein the court expressed 56. Coffman v. Singh (Cal. App.), its views as follows: "Certainly he 193 Pac. 259; Hanser v. Youngs had no reason to suppose that, merely (Mich.), 180 N. W. 409; Walder v. because he was standing in the road- Stone (Mo. App.), 223 S. W. 136; way, he would be run down by the Humes v. Schaller. 39 R. T. 519, 99 Tccklessness of the driver of an auto- Atl. 55. mobile. He was lawfully there, and 57. Stephenson v. Parton. 89 Wash, any person using the highway was 653, 155 Pac. 147. bound to take notice of him, and to 58. Heartsell v. Bellows, 184 Mo. use cart; not to injure him, and the App. 420, 171 S. W. 7; Cbughlin v. plaintiff had a right to assume that Weeks, 75 Wash. 568, 135 Pac. 649. this would bo done." And see section 421. Contributory Negligence of Pedestrians. 589 continuing his course in a northwesterly direction across the alley he stepped to a point on the sidewalk near a fence on the property line about two and one-half feet east of the alley curb, where he was struck by the machine, it was held thai the fact that he could have avoided injury by stepping in an- other direction or by having continued in his original course did not render him guilty of contributory negligence/^ And where one is sitting in a chair in the street near the curb and does not move when he sees an approaching car, he may be charged with negligence.*'" Sec. 477. Watching auto race. Where a spectator who was watching an auto race on fair grounds was injured by a car leaving the track and bursting through a wooden guard fence, it was held that ho was not guilty of negligence in standing by the fence surrounding the track, where that was the only place, other than the grand- stand, from which the races could be viewed.^^ And one at- tempting to cross a race track on the grounds may have his negligence submitted to the jury.^^ Sec. 478. Children — in general. A motorist should bear in mind the lack of judgment of children of immature years and is bound to operate his ma- chine in accordance therewith.^^ And, on the question of their contributory negligence, judgment is not passed on their con- duct with the same strictness as in the case of adults in the streets."* Children are not regarded as possessing the same mental capacity to appreciate the dangers incident to the use of the public thoroughfares as those of mature age. What is required of a child is that it shall exercise the same degree of care as would be exercised by a reasonably careful child of 59. Kuchler v. Stafford, 185 111. App. 63. Section 418. 199. 64. Indian Refininff Co. v. Marcnim 60. Scott V. Dounson, 148 La. — , 86 (Ala ), 88 So. 44.5; Burlie v. Stephens So 821. (Wash.), 193 Pac. 684: Quinn v. Ross 61. Arnold v. State. 163 N. Y. App. Motor Car Co.. 157 Wis. 543. 147 N. Div. 253. 148 N. Y. Suppl 479. W. 100, 62. Mankin v. Bartlcv, 266 Fed. 466. 590 The Law of Automobiles. the same age and intelligence.^^ The degree of care required is such as is conunensurate with his years and intelligence.^^ This requirement may, of course, result in a finding that a child in the street was guilty of contributory negligence which contributed to its injury .^^ But generally the negligence of the child is a question for the jury.^» Thus, whether a child six years old playing in the street is guilty of contributory negligence presents a question within the province of the j^py 69 And, it has been held that whether contributory negli- 65. California. — Todd v. Orcutt (Cal. App.), 183 Pae. 963. Connecticut. — Kisbalaski v. Sulli- van, 108 Atl. 538; Schrayer v. Bishop & Lyons, 92 Conn. 677, 104 Atl. 349; Streetman v. Bussey (Ga. App.). 104 S. E. 517. Kansas. — Routh v. Weakley, 97 Kan. 74, 154 Pac. 218. Kentucky. — Collet v. Standard Oil Co., 186 Ky. 142, 216 S. W. 356. Minnesota. — Roberts v. Ring. 143 Minn. 151, 173 N. W. 437. New York. — Jacobs v. Koehler, S. G. Co., 208 N. Y. 416, 102 N. E. 519; Gross V. Foster, 134 N. Y. App. Div. 243, 118 N. Y. Snppl. 889. Oregon. — Ahonen v. . Hryszko, 90 Dreg. 451, 175 Pac. 616. Pennsylvania. — Edelman v. Ck>nnell, 257 Pa. 317, 101 Atl. 653. Utah. — Herald v. Smith, 190 Pac 932. Wisconsin. — Quinn v. Ross Motor Car Co., 157 Wis. 543, 147 N. E. 100. 66. Miller v. Flash Chemical a>., 230 Mass. 419. 119 N. E. 702. 67. Illinois. — ^Carlin v. CTark, 172 111. App. 239. Maine. — ^Moran v. Smith . 114 Me. 55, 95 Atl. 272. Massachusetts. — Mills v. Powers, 216 Mass. 36, 102 N. E. 912. New York. — Paul v. Clark, 161 App. Div. 456, 145 N. Y. Suppl. 985 ; Marius V. Motor Delivery Co., 146 App. Div (J08, 131 N. Y. Suppl. 357. Rhode Island. — Curley v. Baldwin, 90 Atl. 1. Washington. — Daugherty v. Metro- politan Motor Car Co , 85 Wash. 105, 147 Pac. 655. 68. Alabama. — Reaves v. Maybank, 193 Ala. 614, 69 So. 137. Connecticut. — Lynch v. Shearer, 83 Conn. 73, 75 Atl, 88; Duff v. Husted, 111 Atl. 186. Illinois. — ^Krug v. Walldren Expre.59 & Van Co., 214 111. App. 18. Kansas. — Routh v. Weakley, 97 Kan. 74, 154 Pac. 218. Kentucky. — Akers v. Fulkerson, 153 Ky, 228, 154 S, W. 1101. Massachusetts. — Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592; Patrick v. Deziel, 223 Mass. 505, 112 N. E. 223; Cowles v. Springfield Gas- light Co., 234 Mass. 421, 125 N. E. 589. New York. — Gross v. Foster, 134 N. Y. App. Div. 243, 118 N. Y. Suppl. 889; Bohringer v. Campbell, 154 N. Y. App. Div. 879, 137 N. Y. Suppl. 241. Vermont. — Dervin v. Frenier, 91 Vt. 398, 100 Atl. 760. Washington. — Bruner v. Little, 97 Wash. 319, 166 Pac, 1166. 69. Meserve v. Libby, 115 Me. 282, 98 Atl. 754; Thies v. Thomas, 77 N. Y. Suppl. 276. See also Barger v. Bissell, 188 Mich. 366, 154 N. W. 107. Contributory Negligence or Pedestrians. 591 gence can be attributed to a child eleven years old, is a jury question."** Sec. 479. Children — application of rules. A child thirteen years of age who runs across a public street without loojiing for any vehicle which might be coming has been held to be guilty of contributory negligence preclud- ing recovery for injuries received by being run down )jy an automobile,''^ as has also a child of eleven who while playing in the street suddenly turned and darted in front of an auto- mobile.'^^ So, too, where a child nine years old was playing in the street and having a good view in both directions started across the street passing from behind a wagon in the path of an automobile, it was held that he was negligent.''^ And where a child eight years of age left a place of safety and started to run across the street in front of an approaching automobile, which struck him, it was held that he was guilty of contributory nfigligence precluding a recovery."^ Simi- larly, where a child, four years of age, accompanied by his sister ran from her into the street where he was struck by an automobile, the driver was held not to be negligent, it ap- pearing that he made every effort to stop the car when he saw the act of the child.^^ Likewise, where a boy nearly twelve years old sitting on the tail board of a moving wagon facing the rear turns around and facing the driver alighted from the wagon and proceeded to cross the street in a diagonal direction forward toward his left, when he was struck by an automobile approaching from the rear, it was held tliat he was not in the exercise of due care.'^^ In another case, where there was a large crowd gathered around a patrol wagon in a street and a boy hastening to the scene was struck as he had 70. Rule V. Claar Transfer & Stor- 2"), 99 Atl. 719. age Co, 102 Neb. 4, 165 N. W. 883. 74. >roran v. xSniitli. 114 Mc. 55, 95 71. Zoltovski V. Gzella, 159 Mich. Atl. 272. 620, 124 N. W. 527. 26 L. R. A. (N. 75. Paul v. Clark, 161 N. Y. App. S ) 435. Div. 456, 145 N. Y. Suppl. 985. 72. Hargrave v. Hart. 9 l)<>rii. I.^i\v 76. Mills v. Powers, 216 Mnas. 36, Rep. (Canada) 521. 102 N. E. 912. 73. Levesque v. Dumont, 1 1(> Me. 592 The Law of Automobiles. stepped about three or four feet from the curb by an auto- mobile going in the same direction but on the wrong side of the street, the court declared that had the defendant been duly observant he would have noticed that the course of the boy was convergent with his own ; that there was no question of contributory negligence, and that even if there was con- tributory negligence the defendant would be responsible under the last clear chance doctrine, for had he been looking, as he was legally bound to be doing, he would have seen the boy and seen that he was unaware of the danger into which he was going.'^'^ Where it appeared from the evidence that the automobile was on the proper side of the street, in the middle of the block, proceeding at a moderate rate ; that the boy must have seen it if he had looked; that the roadway was clear in front of it; that the boy, interested in catching the ball, suddenly ran from the sidewalk on the south side of the street, where he was in a place of safety, immediately in front of the ma- chine at a distance variously stated from four to twelve feet ; that the automobile was stopped so that its Avheels skidded and only proceeded five feet beyond the body of the boy, the court declared that it was unable to find any negligence on the part of the defendant, but did find contributory negli- gence on the part of the deceased.'* If an automobile comes upon a boy in such a way as to produce terror, and his fear causes an error of judgment by which he runs in front of the automobile, he is not guilty of contributory negligence.'^ In an action for the death of a boy run over by a motor car, the fact that the accident did not happen at a street crossing, but at a point between blocks, may be considered by the jury on the issue of negligence.^'* As bearing upon the question of the negligence of the driver of an automobile evidence is also properly admissible that 77. Burvant v. Wolfe, 126 La. 787, 79. Thies v. Thomas, 77 N. Y. Suppl. 52 So. 1025, 29 L. R. A. (N. S.) 677. 276. 78. Jordan v. American Sight-Seeing 80. Thies v. Thomas, 77 N. Y. Suppl. Coach Co., 129 K Y. App. Div. 313, 276. 113 N. Y. Suppl. 786. Contributory Negligence of Pedestrians. 593 there were a number of children in the street and that the machine approached them at a "very fast" rate.^^ Where the plaintiff's evidence tended to show that his in- testate, a boy eleven years old, started to run across the street, without looking in either direction ; that he was struck and fatally injured by an automobile, running at an excessive speed, on the wrong side of the road, and that no signal had been sounded since it passed a point four hundred feet away, it was held that the jury were entitled to determine whether the boy exercised such care as could be reasonably expected of one of his age, judgment and experienced^ But it has been held improper to instruct the jury, in an action for an injury to a boy seven years of age, that it is a question for them to settle "whether or not, having seen the boy as they say they did seventy-five feet away, it was not their duty to decrease the speed of the machine so as to have it under such reason- able control as would enable them to stop, if necessary, in order not to run against the boy, even if the boy was acting in the most careless way possible and running in front of the machine.^2 As to this charge it was said : ' ' This instruction eliminated all question of contributory negligence on the part of the plaintiff, and in effect charged the jury that the ma- chine must be under such control that the defendant could immediately stop it if the plaintiff, by the most careless act possible, heedlessly came in contact with the machine. Under the charge, if the driver saw the boy standing motionless in the road, and not within the line of the course he was follow- ing looking directly at him as he approached, he would be liable for the injuries caused by striking plaintiff, even if he suddenly and in the most careless manner ran in front of the machine as it came near him. The instruction amounted to a direction of a verdict for the plaintiff, because the evidence was conclusive that the defendant did not have such control of the machine as to stop it and prevent a collision, if the boy was acting in the most careless manner possible." 81. Cedar Creek Store Co. v. Stead- 83. Verdoii v. Crescent Automobile ham, 187 Ala. 622, 65 So. 984. Co.. 80 N. J. L. 199. 76 Atl 346. 82. Lyncl) v. Shearer, 83 Conn. 73, 84. Per Bergen, J. 75 Atl. 88. 38 594 The Law or Automobiles. Sec. 480. Children — children non sui juris. Children of very tender years, such as in law are considered non sui juris, are not. chargeable with contributory negligence from their own conduct ;«5 i^^t in their cases, the negligence of parents or of those having guardianship is imputed to them.«« But the mere fact that a six year old child was playing in the street is not per se negligence on the part of its parents, but a question for the jury is presented.^' Nor are the parents of a school child guilty of any negligence in permitting it to go to school unattended.^^ Negligence may, however, be charged against a parent permitting a child of tender years to cross a street unaccompanied.^^ But, it is not necessarily contributory negligence on the part of parents of a child over eight years old who permit it to cross a street unattended.^<> The question of negligence in such cases necessarily depends upon the amount of traffic, the obstructions to the view, and 85. Alabama. — Hood & Wheeler Fur- niture Co. V. Royal (Ala. App.), 76 So. 965. Connecticut. — Duff v. Husted, 111 Atl. 186. Illinois. — Smith v. Tappan, 208 111. App. 433. Indiana. — J. F. Darmondy Co. v. Reed, 111 N. E. 317. Michigan. — Beno v. Kloka, 178 N. W. 646. New York. — Jacob.s v. Koehlcr S. G. Co., 208 N. Y. 416, 102 N. E. 519. Oregon. — ^Ahonen v. Hryszko, 90 Oreg. 451, 175 Pac. 616. F?outh Carolina. — King v. Holiday, 108 S E. 186. Nine years old. — ^It is a question for the jury to determine whether a child between nine and ten year.s of age is sui juris. Gunsburger v. Kristeller, 189 App. Div. 82, 179 N. Y. Suppl 506. 86. Miller v. Flash Chemical Co., 230 Mass. 419, 119 N. E. 702; Sullivan v. Chadwick. 127 N. E. 632. 87. Thies v. Thomas 77 N. Y. Suppl. 276. "That the deceased was sui juris is clear, but that an infant wherever he becomes sui juris is required to exercise the same degree of caution aa an adult is not the law of this State. . . . We think the rules governing the contributory negligence of infants are very well settled by the decisions of this court, though these rules do not obtain in many other jurisdictions. An infant may be of such tender years as to be incapable of personal negli- gence. At such age the infant is termed non sui juris, but if not re- sponsible for its own negligence, the negligence of its parents or guardians in suffering it to incur danger may be imputed to it. This is what is called the doctrine of imputed negligence." Jacobs V. Koehler S. G. Co., 208 N Y. 416, 102 N. E. 519. 88. Tripp V. Taft, 219 Mass. 81, 106 N. E. 578. 89 Kuehne v. Brown. 257 Pa. 37. 101 Atl. 77. Compare Miller v. Flash Chemical Co., 230 Mass. 419, 119 N". E. 702. 90. Bruner v. Little, 97 Wa.sh. 319, 166 Pac. 1166. Contributory Negligence of Pedestrians. 595 other surrounding circumstances, as well as the age and in- telligence of the child.^^ The question is generally for the j^j.y 92 ^r^en a child is too young to have any intelligence or discretion about taking care of itself in a public street, and when it has carelessly been allowed to go there unattended, still while upon the street it may have done nothing which would be deemed dangerous or lacking in due care, provided its movements had been directed by an adult person of reason- able and ordinary prudence in charge of it, and yet it may have been hurt. Under such circumstances, it may recover damages for the injury .^^ Sec. 481. Persons under disability. The fact that a pedestrian is under some disability is con- sidered on the question whether he has acted with the degree of care required by the law. A blind person is entitled to use the streets and is not guilty of negligence in so doing, the law requiring him, however, to use ordinary care under the circumstances.^* And a similar situation exists in the case of a person who is deaf.®^ Likewise a beggar on his crutches has the right to use the streets, being required to exercise reasonable care under the circumstances for his safety .^^ So the fact that a pedestrian was intoxicated at the time of the injury may be considered as bearing both upon the question of whether he was exercising the required care at that time and upon the degree of care exercised by the driver of the automobile.^'' One with impaired sight and hearing who, 91. Six years old. — It is not neces- Sullivan v. Chadwick (Mass.). 127 N. sarily negligent for the parents of a E 632. child to permit it to cross a street on 94. McLaughlin v. Griffin, 155 Iowa, an errand, where the locality was one 302, 135 N. W. 1107. See also HefTeron in which there was little traffic ex- v. Reeves (Minn.), 167 N. W. 423. cept by pedestrians, and the child was 95. Furtado v. Bird. 26 Colo. A pp. accustomed to cross the street on its 153. 146 Pac. 58. way to school. Yeager v. Gatelj- & 96. Millsai>s v. Brogdon, 97 Ark. Fitzgerald, Inc , 262 Pa. 466, 106 Pa. 469, 134 S. W. 632. 76. 97. GrifTcn v. Wood. 93 Conn. 99. 92 Hughey v. Lennox (Ark.). 219 105 Atl. 354; Brown v. City of Wi!m S. W. 323; Arkin v. Page, 212 111. ington. 4 Boyco (Del.) 492. 90 Atl. 44 ; App. 282. ITorzig v. Sandberg (Mont.). 172 Pac. 93. Wiswell v. Doyle, 160 Mass. 42, 132. 35 N. E. 107, 39 Am. St. Rep. 451; 596 The Law of Automobiles. while walking along the sidewalk, is struck by a machine back ing from a private roadway may recover although the driver sounded his horn.^^ Sec. 482. Workmen in street — in general. Laborers whose employment requires that tliey work in the streets are not considered in the same light as pedestrians.^* The latter are not continuously in the street and their atten- tion is devoted to the safe passage along the highway, while the attention of street laborers must be, to a considerable ex- tent, at least, devoted to their tasks. There can be no duty imposed on a workman to be constantly on the lookout for motor vehicles ;i on the contrary it is the duty of drivers of vehicles to observe the street laborers and to avoid contact with them.2 j|- jg ^ot negligence as a matter of law for a work- man to keep his eyes on his work and to fail to look and listen for approaching vehicles, if he remains in one spot.' And a laborer may properly assume that the automobilist will not be guilty of negligence in running him down without warn- ing." Thus, where a street laborer is struck by a machine, he cannot generally be found guilty of contributory negligence as a matter of law, but at least a question for the jury is pre- sented.^ The rule as to the reciprocal rights and duties of persons driving vehicles and of laborers on the highway has been stated as follows: "Persons riding or driving are bound to exercise reasonable care to see and avoid injuring persons who are at work in the streets, as well as pedestrians. 98. Crawley v. Jermain, 218 111. Charles M. Monroe Stationery Co. App. 51. (Mo. App.), 191 S. W. 1054. 99 Ceco^a v. 44 Cigar Co., 253 Pa. 5. King v. Grien, 7 Cal. App. 473. St. 623. 98 Atl. 775. 94 Pac. 777; Carn^hi v. Gerlach, 208 1. Diibe V. Keogh Storage Co. Ill App. 340; Nehring v. Charles M. (Mass.), 128 N. E 782; Burger v. Monroe Stationery Co. (Mo. App.). Taxicab Motor Co., 66 Wash. 676, 120 191 S. W. 1054; Cecola v. 44 Cigar Pae. 519. Co., 253 Pa, St. 623, 98 Atl. 775; 2. Section 422. Burger v. Taxicab Motor Co., 66 3. Nehring v. Charles M. Monroe Wash. 676, 120 Pac. 519; Morrison v. Stationery Co, (Mo. App,), 191 S. W. Conley Taxicab Co., 94 Wash. 436, 162 1054. Pac 365. See also Saper v. Baker, 91 4 Dube V. Keogh Storage Co. N. J. L. 713, 104 Atl. 26. (Mass.), 128 N. E. 782; Nehring v. Contributory Negligence of Pedestrians. 097 And the laborer is not bound to neglect his occupation, in order to avoid injury from the want of ordinary care on the part of drivers of vehicles. But he cannot recover if actually guilty of contributory negligence."*^ And one working on the floor of a way in a railroad station stands in practically the same legal situation as one working on a public highway.'' Sec. 483. Workmen in street — violation of law by workman. The fact that the plaintiff in an action for negligence has himself violated the law, is held to be immaterial and irrele- vant, unless a causal connection is shown between his illegal act or omission and the subsequent injury for which he seeks to recover. So, where the plaintiff's intestate was run over and killed by an automobile while superintending the renewal of a telephone underground service wire at a manhole in a city street and an ordinance of the city required the use of a lighted red lantern at the excavation, but none was in fact used, it was decided that the violation of the ordinance would not defeat the action unless such violation contributed to cause the injury and that it was for the jury to determine, under proper instructions, whether the absence of the lantern contributed to the accident or not, and also w^hether the de- cedent, in remaining at the manhole, after he saw the ap- proaching automobile, acted as a reasonably prudent person would have acted under similar circumstances.^ Sec. 484. Workmen in street — traffic officer. A traffic officer in the performance of his duties is, the same as other persons in the highways, bound to exercise reason- able care for his safety.^ But he is not required to use the same degree of diligence as is required of an ordinary pedes- trian passing along or across the street.^*^ Tie is required 6. Burger v. Taxicab Motor Co., 66 App. IMv. 262. 151 N. Y. Suppl. 552: Wash. 676, 120 Pac. 519. White v. East Side Mill & Lumber Co . 7. Papic V. Fmind (Mo. App.). 181 84 Greg. 224. 161 Pac. 969. 164 Pac. >;. W. 1161. 736. 8. Case v. Clark. 83 Conn. 1S3. 76 10. Xenofloohius v. Fifth Ave. Coaoh \tl. 526. Co., 129 App. Div. 26. 113 X. Y. Snppl. 9. Fitzsinion- v. lanian, 166 N. Y. 135; Fitzsiinons v. Isnian. 166 N. Y. 598 The Law of Automobiles. to exercise only the degree of caution that might be expected of an officer engaged in such duties." Hence, as a general proposition, his negligence presents a question for the jury; and, if they acquit him of neglect of care, the court will not interfere.^2 While walking or standing near the center of the highway, he is entitled to assume that, owing to his presence, vehicles will obey the law of the road and keep to the right.^^ And he may assume that the automobilist will not wrongfully cut the corner, and he is not required as a matter of law to be on the lookout to avoid the consequences of such conduct." Sec. 485. Last chance doctrine. Under the ''last clear chance" doctrine, a person who has been guilty of negligence is sometimes permitted to recover for his injuries, where, after the discovery of such negligence, the other party could nevertheless by the exercise of reason- able care have avoided the accident. There is no room for the doctrine in a case where both parties are equally guilty of concurring acts of negligence, and the negligence of both con- tributed to the accident at the time of its occurrence.^^ The App. Div. 262, 151 N. Y. Suppl. 552. 11. Xenodocliius v. Fifth Ave. Coach See also Heath v. Seattle Taxicab Co., Co., 129 N. Y. App. Div. 26. 113 N. Y. 73 Wash. 177, 131 Pac. 843. "The in- Suppl. 135. testate, as said, was a police officer and 12. Xenodochius v. Fifth Ave. Coach at the time was performing his duty as Co., 129 N. Y. App. Div. 26. 113 N. Y. Buch. He was, undoubtedly, required. Suppl. 135. in view of the performance of the work 13. Xenodochius v. Fifth Ave. Coach assigned to him, to use reasonable care Co., 129 N. Y. App. Div. 26, 113 N. Y. to prevent being run over. He was not. Suppl. 135. however, obliged to use the same degree 14. White v. East Side Mill & Lum- of care that would he required of an ber Co., 84 Oreg. 224, 161 Pac. 969, 164 ordinary pedestrian." Fitzsimons v. Pac. 736. Isman, 166 N. Y. App. Div. 262, 151 15. Mayer v. Anderson (Cal. App.). N". Y. Suppl. 552. 173 Pac. 174: Stephenson v. Parton. Police pension.— The fact that a 89 Wash. 653, 155 Pac. 147. "There policeman injured by a taxicab was is more or less confusion, if not con- partially reimbursed for his injuries flict, in the treatment of this subject from a pension fund, in part kept up by the courts in different jurisdic- toy dues received from him, does not tions; but this court is committed to inure to the defendant's benefit so as to the doctrine that the last clear chance lessen the amount of liability. Heath rule cannot be invoked where the neg- V. Seattle Taxicab Co.. 73 Wash. 177, ligence of the plaintiff is concurrent 131 Pac. 843. ^'it^ ^^^^ "f the defendant. The law Contributory Negligence of Pedestrians. 599 doctrine is applied only in cases where antecedent negligence on the part of the pedestrian is shown.^*' The general rule, and a somewhat similar doctrine prevailing in a few States and known as the "humanitarian" rule, is frequently invoked in cases of collisions between street cars and automobiles." As between pedestrians and the drivers of motor vehicles, a pedestrian who has been guilty of negligence in getting into a dangerous situation, in some jurisdictions, may be permitted to recover for his injuries where the driver, after he dis- covered or should have discovered the situation, could in the exercise of reasonable care, have avoided the collision.^^ That is to say, if a person injured in crossing a street failed to on that subject, as recognized in this State, is well stated in French v. Grand Trunk Ry. Co., 76 Vt. 411, 58 Atl. 722, that when a traveler has reached a point where he cannot extri cate himself and vigilance on his part will not avert the injury, his negli- gence in reaching that position becomes the condition and not the proximate cause of the injury and will not pre- clude a recovery, but that it is equally true that if a traveler, when he reaches the point of collision, is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery, notwitli- standing the fact that the trainmen could have stopped tlic train in season to have avoided injurying him. Tlie rule that, if the plaintiff's negligence proximately contributes to his own injury, he cannot recover is so well set- tled in this .State that it needs no cita- tion of authorities upon that }X)int, and therefore the last clear chance rule can never apply where the plaintiff's negli- gence is concurrent with and of the same degree as that of the defendant. A charge as requested by the plaintiff would justify the jury in finding for him, though his negligence may have proximately contributed to his own in- jury. That the plaintiff cannot recover when his negligence is concurrent with and of tlu' same degree as that of the defendant is also shown in Trow v. Vt. Central R. R. Co.. 24 Vt. 487. 58 Am. Dec. 191, in which the authorities upon that subject are collected and com- mented upon." Aiken v. Metcalf, 02 Vt. 57, 102 Atl. 330. 16. Keiper v. Pacific Has & Elec. Co. (Cal. App.). 172 Pac. 180: Indiana- polis Tr. «fe Terminal Co. v. Lie (Iiid. App.). 118 N. F. O.-iO. 17. Section 613. 18. Duter v. Sharen. 81 Mo. App. 612; School v. Grayson, 147 Mo. App. 652. 127 S. W. 415: Wynne v. Wag- oner Undertaking Co. (Mo ), 204 S. W. 15; Ballman v. H. A. Luecking Teaming Co. (Mo.), 219 S. W. 603; Reynolds v. Kenyon (Mo.). 222 S. W. 476: Rubick v. Sandler (Mo. App.). 219 S. W. 401 ; Raymen v. Galvin ( Mo. ) . 229 S. W. 747 ; Weiss v. Sodo- mann H. & P. Co. (Mo. App.l, 227 S. W. 837; Schinogle v. Baughman (Mo. App.), 228 S. W. 897; Bibb v. Grady (Mo. App.). 231 S. W. 1020: Hark v. Jones (Greg.), 17^) Pac. 272; White v. Hegler. 29 D L. R. (Canada) 480, 34 W. L. R. 1061. See also Ginter v. O'Donoghue (Mo. App.), 179 S. W. 732: Ca-stle v. Wilson (Mo. App.). 183 S. W. 1106; Ottoby v. Mississippi Val- ley Trust Co.. 197 Mo. App. 473, 196 S. W. 428. 600 The Law of Automobiles. exercise ordinary care and prudence for his own safety, it is nevertheless proper to leave to the jury the question whether, if the driver of the vehicle by which he was injured had been watchful, he could have discovered the peril to which the plaintiff was exposed in time to have avoided the i^ijury." Thus, it was said in one ease,^^ "I think it is the law that a pedestrian crossing, not at a crossing and not looking and therefore being very careless, would be entitled to damages from an automobile driver who with no obstructed view could have seen the pedestrian at a sufficient distance to avoid him, but who for instance for no justifiable purpose kept his eyes either on his feet in the car or on a window at the side of the street and so did not see the pedestrian and ran over him— who, in other words, did not keep a lookout to see that he did not run into anyone. Also an automobile driver who does not keep a good lookout and does not see a pedestrian apparently going to cross his path without looking, is not entitled to go on and leave the responsibility upon the pedestrian. He must use reasonable care, when he sees the danger, to avoid him." But there is no opportunity for the application of the last clear chance rule in a case where the person injured passed in front of the machine so suddenly that the collision could not be avoided.^i Where a defendant has charged contribu- tory negligence on the part of the deceased, alleging that he passed hurriedly from the sidewalk into the street near the 19. Walldren Express & Van Co. v. or any other signal, but keeps on his Krug, 291 111. 472, 126 N. E. 97; Dutea* speed, it is the duty of the automobile V. Sharen, 81 Mo. App. 612; Witten- to slacken its speed and to take no herg V. Hyatt's Supply Co. (Mo. App.), risks as to the pedestrian increasing 219 S. W. 686. See also G-ordon v. his speed." Diamond v. Cowles. 174 Stadelman, 202 111. App. 255. Fed. 571, 98 C. C. A. 417. Instructions.— It has been held proper 20. White v. Hegler, 29 D. L. R. to instruct the jury as follows: "The (Canada) 480, 34 W. L. R. 1061. defendant has just as much right on 21. Bishard v. Englebeck, 180 Iowa, the highway as the automobile, and the 1132, 164 N. W. 203: Wynne v. Wag- driver of the automobile must pay at- oner Undertaking Co. (Mo.), 204 S. W. tention to pedestrians who are on the 15; Goldman v. Lanigan Bros. Co., 185 liighway, and if it assumes to take the App. Div. 742, 173 K Y. Suppl. 777 ; r isles of a pedestrian, who is crossing Stephen Putney Shoe Co. v. Ormsby's the highway, getting out of its course, Adm'r (Va.), 105 S. E. 563; Burlie v. and the pedestrian does not increase Stephens (Wash.), 193 Pac. 684. his speed after the blowing of the horn Contributory Negligence of Pedestrians. 601 automobile, and so near that it was impossible to stop in time to avoid injury to him, and has introduced evidence to prov(^ these allegations, it is held profjer to peiTnit the plaintiff to prove the possibility of stopping the machine after the dan- gerous position of deceased should have been seen, not as a basis of recovery, but to overcome the defcnse.^^ In many jurisdictions, however, the last clear chance doc- trine is applicable, if at all, only when the defendant had actual knowledge of the dangerous situation of the plaintiff, and is not applicable when such situation is unknown, though it might have been discovered had the defendant kept a reasonably careful outlook.^ In such jurisdictions where a more limited view is taken of the doctrine, the rule may be stated that the plaintiff may recover for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposing him to the risk of injury, if such in- jury was more immediately caused by the defendant's omis- sion, after becoming aware of the plaintiff" 's danger, to use ordinary care for the purpose of avoiding injury to him.'^ Thus, where the driver of an automobile sees a person stand- ing in the highway and blows the horn at a distance of two or three hundred yards, but makes no further effort to avoid him, a recovery may be had.^ If a plaintiff relies upon the fact that he was not guilty of contributory negligence, but that the injury was caused by 22. Scholl V. Grayson, 147 Mo. App. a situatiou from which the exercise 652. 127 S. W. 415. of reasonable care on his own part 23. "It is true that the instructions thereafter would not extricate him. are faulty in that they fail to mark The appellant, hoAvever, is in no posi- the distinction between the application tion to complain of tliis defect." Moy of that rule where the driver of the an- Quon v. M. Furuya Co.. SI Wash. 526. tomobile actually saw the respondent 14.3 Pac. 99. in time to avoid the injury and where 24. Hess v. Keniinoror. 65 Pa. Super the driver, by the exercise of reason- Ct. 247; [Tndorhill v. St4n-enson, 100 able care, might have seen and appre- Wash. 129, 170 Pac. 3.')4. See also ciated the respondent's danger in time Russell v. Vergason (Conn.K 111 Atl. to avoid the injury. In the first situa- G25: Williams v. Lonibanl. 87 Greg, tion, the respondent's negligence, con- 245, 170 Pae. 316; Clark v. Jones tinning to the time of the injury. (Greg.), 179 Pac. 272; I»cke v. would be immaterial. In tho second. Greene, 100 Wash. 397, 171 Pac. 245. the rule of last clear chance would ner control, and where the man in cliarge apjwrently gave such warnings as the circum- stances required. The latter may have misjudged the probable movements of the pedestri.in while he was "zigzag- ging' in front of the automobile, and this may, in the end, have been the '•ause of the collision; but tiiere is nothing in the story told by any of tho witnesses which would justify an in ference that the driver wantonly niu into Mr. Virgilio, or that he m^li- gently omittetl to do those things which an ordinarily careful person similarly situattxl would have done. In short, the unfortunate man who was .struck appears to have jumped around in front of the car, and, while ()04 The Law of Automobiles. of the blame for the accident is peculiarly within the province of the jury.^^ And where one is leading a domestic animal along the highway and it becomes frightened by the approach of an automobile, his negligence in holding onto the rope while being dragged in front of the machine may be presented to the jury.^* Where the plaintiff and two other ladies were crossing a street diagonally, when they saw a taxicab coming half a block away and stopped to let it pass; and, while the plaintiff's two companions remained stationary, the plaintiff becoming ner- vous lost her presence of mind arid broke away from her com- panions and attempted to pass ahead of the machine when it was close upon her, it was held that a verdict of the jury in favor of the defendant would be affirmed.^^ And, where a man fiftj^^nine years of age started to cross a street, and, after reaching a space between two surface railway tracks, he heard the sound of the horn on the defendant's automobile, and, apparently excited thereby, took one or two steps back in front of the automobile and was hit, the machine being run at a speed of between eleven and twelve miles an hour, with lamps lighted, and no other vehicles obstructing the street, it was held that a verdict that the decedent was free from con- tributory negligence and that the accident was caused solely by the negligence of the driver, was against the weight of the evidence.^*^ A third person who attempts to catch a runaway motor vehicle for the purpose of changing its course, where persons ' lives are endangered, and who is injured in so doing, is not thereby guilty of negligence as a matter of law so as to pre- clude a recovery for injuries thus sustained.^'' both the chauffeur and he were en- Div. 696, 183 N. Y. Suppl. 482. deavoring to avoid the threatened 35. Brand v. Taxa Cab Co., 129 La. danger, 'zigzagged' or 'jockeyed' him- 781, 56 So. 885. self into the collision." Virgilio v. 36. Wall v. Merkert, 166 N. Y. App. Walker, 254 Pa. St. 241, 98 Atl. 815. Div. 608, 152 K Y. Suppl. 293. 33. McKiernan v. Lehmaier, 85 37. American Express Co. t. Terry, Conn. Ill, 81 Atl. 969. 126 Md. 254, 94 Atl. 1026. 34. Boos V. Field, 192 N. Y. App. Contributory Negligence of Pedestrians. 605 Sec. 487. Function of jury. As a general proposition, in an action by a pedestrian for injuries sustained in a collision with a motor vehicle, the neg- ligence of the defendant,'^ and the contributory negligence of the plaintiff present questions within the province of the jury.^^ Particularly, is the contributory negligence of the 38. Section 452. 39. United States. — New York Tranap. Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285. Arkansas. — Breashears v. Arnett, 222 S. VV. 28; Terry Dairy Co. v. Par- ker, 223 S. W. 6. Alabama. — Adler v. Martin. 179 Ala. 97, 59 So. 597; Bachelder v. Mor- gan, 179 Ala. 339, GO So 815. California. — Blackvvell v. KeiTwick. 21 Cal. App. 131. 131 Pac. 94; Potter V. Back County Transp. Co., 33 Cal. App. 24, 164 Pac. 342; Weihe v. Rath- jeii Mercantile Co., 34 Cal. App. 302, 167 Pac. 287; Off v. Crump. 40 Cal. App. 173, 180 Pac. 360: Randolph v. Hunt (Cal. App.), 183 Pac. 358; Webster v. Motor Parcel Delivery Co. (Cal. App.). 183 Pac. 220; Baldarachi V, Leach (Cal. App.), 186 Pac. 1060: Gross V. Burnside (Cal), 199 Pac. 780. "Contributory negligence is a question of law only when the evidence is of such a character that it will sup- port no other legitimate inference than that in the one case the plaintiff was guilty of contributory negligence. . . When the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from those facts reasonable men can draw but one inference, and that an infer- ence pointing unerringly to the negli- gence of the plaintiff contributing to his own injury, then, and only then, does the law step in and forbid plain- tiff a recovery. . . . Even where the facts are undisputed, if reasonable minds might draw different conclu- sions upon the question of negligence, the question is one of fact for the jury." Moss v. Boynton (Cal. App.), 186 Pac. 631. Colorado. — Loutban v. Peet, 66 Colo. 204, 179 Pac. 135. Illinois. — Crandall v. Krause, 165 111. App. 15; Rasmusscn v. Drake, 185 111. App. 526; Bohm v. Dalton. 206 111. App. 374; Heclan v. Guggenheim, 210 111. App. 1 ; Brautigan v. Union Over- all Laundry & Supply Co., 211 111. App. 354. Indiana. — Rump v. Woods, 50 Ind. App. 347, 98 N. E. 369. loioa. — 'Brown v. Des Moines Steam Px>ttling Works, 174 Iowa, 715, 156 N. VV. 829; Rolfs v. Mullins, 179 Iowa, 1223, 162 N. W. 783; Gilbert v. Van- derwall, 181 Iowa. 685, 165 N. W. 165. Kansas. — Johnson v. Kansas City Home Telep. Co., 87 Kaus. 441, 124 Pac. 528. Maryland. — ^American Express Co. v. State of Use of Denowitch, 132 Md. 72, 103 Atl. 96. Massachusetts. — Dudley v. Kings- bury, 199 Mass. 258. 85 N. E. 76; Rog- ers V. Phillips, 206 Mass. 308, 92 N. E. 327, 28 L. R. A. (N. S.) 944; Creedon V. Oalvin, 226 Mass. 140, 115 N. E. 307; French v. Mooar, 226 Mass. 173. 115 N. E. 235; Chaplin v. Broklinc Taxi Oo., 230 Mass. 155, 119 N. E. 650; Miller v. Flash Chemical Co., 230 Mass. 419, 119 N. E. 702; Emery v. Miller, 231 Mass. 243. 120 N. E. 654; Sarmente v. Vance. 231 Mass. 310, 120 N. E. 848; Inangelo v. Petterson. 128 N. E. 713. Michigan. — Sehoek v. Cooling. 175 Mich. 313, 141 N. E. 675; Bouma v. Dubois, 169 Mich. 422, 135 N. W. 322: Tutle V. Briscoe Mfg. Co.. 190 Mich 606 The Law of Automobiles. plaintiff a jury question when he is a child of immature age.'**' A verdict of the jury in favor of the person injured will not ordinarily be set aside, if there was evidence upon which they 22. 155 N. W. 724; Czarniski v. Secur- ity Storage & Transfer Co., 204 Mich. 276, 170 N. W. 52; Patterson v. Wag- ner, 204 Mich. 593, 171 N. W. 356; Darish v. Scott, 212 Mich. 139, 180 N. W. 43^; Perkins v. Holser, 182 N. W. 49; Degens v. Langredge, 183 N. W. 28. Minnesota. — ^Smith v. Bruce, 131 Minn. 51, 154 N. W. 659; Johnson v. Johnson. 137 Minn. 198, lf)3 N. W. 160; Archer v. Skahen, 137 Minn. 432, 163 N W. 784; Powers v. Wilson, 138 Minn. 407, 165 N. W. 231; Hefteron V. Reeves, 140 Minn. 505, 167 N. W. 423; Johnson v. Brastad, 143 Minn. 332, 173 N. W. 668; Plasch v. Fass, 144 Minn. 44, 174 N. W. 438; 10 A. L. R 1446; Oflferman v. Yellow Cai» Co., 144 Minn. 478, 175 N. W. 537; Al- len V. Johnson, 144 Minn. 333, 175 N. W. 545; Unmacht v. Whitney, 178 N. W. 886; Gibson v. Grey Motor Co., 179 N. W. 729. Missouri. — Frankel v. Hudson, 271 Mo. 495, 196 S. W. 1121; Raymen v. Galvin (Mo.), 229 S. W. 747; M'c- Kenna v. Lynch (Mo.), 233 S. W. 175; Hodges v. Chambers, 171 Mo. App. 563. 154 S. W. 429; Ginter v. O'DoTioghue, — Mo. App. — , 179 S. W. 732; Sullivan v. Chauvenet, — Mo. App. — , 186 S. W. 1090; LaDuke v. Dexter. — Mo. App. — , 202 S. W. 254 ; Breaks V. Harris, — Mo. App. — , 207 S. W. 293; Schinogle v. Baughman (Mo App.), 228 S. W. 897. Nrbraska. — Rule v. Claar Transfer & Storage Co., 102 Neb. 4. 165 N. W. 883. New Jersey. — Turner v. Hall, 74 N. J. I^w, 214, 64 Atl. 1060; Pool v. Brown. 89 N J. Law. 314, 98 Atl. 262; Galen ter v. Peti. 114 Atl. 408. New York. — Wolcott v. Renault Sell- ing Branch, 223 N. Y. 288, 119 N. E. 556; Cowell v. Saperston, 149 App. Div. 373, 134 N. Y. Suppl. 284; Fitz- gerald V. Russell, 155 App. Div. 854, 140 N. Y. Suppl. 519; O'Neil v. Kopke, 170 N. Y. App. Div. 601, 156 N. Y. Suppl. 664; Lorenzo v. Manhattan Steam Bakery, 178 App. Div. 706, 165 N". Y. Suppl. 847 ; Haas v. Newbery, 190 App. Div. 275, 179 N. Y. Suppl. 816; Perlmutter v. Byrne, 193 App. Div. 769, 184 N. Y. Suppl. 580; Roth- feld V. Clerkin, 98 Misc. 192, 162 N. Y. Suppl. 1056. North Dakota. — Vannett v. Cole, 170 N. W. 663. Pennsylvania. — Kurtz v. Tourison, 241 Pa. St. 425, 88 Atl. 656; Walleigh v. Bean, 248 Pa. St. 339, 93 Atl. 1069; Miller v. Tiedemann, 249 Pa. 234, 94 Atl. 835; Oelrich v. Kent, 259 Pa. 407, 103 Atl. 109; Banks v. M. L. Shoe- maker & Co., 260 Pa. 375. 103 Atl. 734; Kerk v. Peters, 261 Pa. 279, 104 Atl. 549; O'Brien v. Bieling, 110 Atl. 89; Michalsky v. Putney, 51 Pa. Super. Ct. 163; King v. Brillharfc (Pa.), 114 Atl. 515. Rhode Island. — Thomas v. Burdick, 100 Atl. 398. South Dakota. — Heidner v. Germ- schied, 41 S. Dak. 430, 171 N. W. 208. Texas. — Burnett v. Anderson, — Giv. App. — , 207 S. W. 540; Mer- chants' Transfer Co. v. Wilkin.son, — Civ. App. — , 219 S. W. 891. Utah. — Sorenson v. Bell, 51 Utah, 262, 170 Pac. 72. Virginia. — Core v. Wilhelm, 124 Va. 150, 98 S. E. 27. Washington. — Lewis v. Seattle Taxi- cab Co., 72 Wash. 320, 130 Pac. 341; Chase v. Seattle Taxi cab Co., 78 Wash. 537, 139 Pac. 499; Mickelson v. Fisher, 81 Wash. 423, 142 Pac. 1160; Mco"e v. Roddie. 103 Wash. 386, 174 Pac. 648; McClure v. Wilson, 186 Pac. 302; Contributory Negligbnce of Pedestrians. 607 might reasonably have rendered their decision.*^ Negligence as a matter of law may be found, however, when a pedestrian seems to have heedlessly walked in front of an approaching aiitomobile.^2 As was said in one case," "It has been very pointedly stated by the Court of Appeals, and I think it is generally understood by the bar, that in these street crossing cases the question of the pedestrian's contributory negligence is generally one of fact. Of course there are certain extreme cases where a pedestrian steps directly in front of a vehicle and in effect runs into it, in which the court is justified in determining the question of the pedestrian's negligence as a matter of law. These cases, however, are rare." Olsen V. Peerless Ijaundry, — , 191 Pac. 756; Elraberg v. Pielow, 194 Pae. 549. West Virfiinia. — Deputy v. Kimmell. 73 W. Va. r)9r>, 80 S. E. 919. Wiscovsin. — Ouellette v. Superior Motor & M. Works, 157 Wis. 531, 147 N W. 1014; Klokow v. Harbaugh, 166 Wis. 262, 164 Wis. 999; Kellner v. Christianson, 169 Wis. 390. 172 N. W. 796; Luethe v. Schmidt-Gaertner Co, 170 Wis. 590, 176 N. W. 63. 40. Alabama. — Reaves v. Maybank, 193 Ala. 614, 69 So. 137. Connecticut. — Lynch v. Shearer, 83 Conn. 73, 75 Atl. 88; Dessureault v. Masselly, 92 Conn. 690, 104 Atl. 347. Kentucky. — Ackers v. Fulkersor, 153 Ky. 228, 154 S. W. 1101. • Massachusetts. — Rasmussen v. Whip- ple, 211 Mass. 546, 98 N. E. 592. Missouri. — Sullivan v. Chauvenet (Mo.), 222 S. W. 7.59; LaDuke v. Dex- ter (Mo. App.). 202 S. W. 254. New York. — Pennige v. Reynolds, 98 Misc. 239, 162 N. Y. Suppl. 966. Pennsylvania. — Greenbaum v. Costa, 113 Atl. 79. 41. McKiernan v. Lehmaier, 85 Conn. 111. 81 Atl. 969; Marsters v. loeusee (Oreg.), 192 Pac. 907. 42. Moss V. H. R. Boynton (Cal. App.), 186 Pac. 631; Shott v. Korn. 1 Ohio App. 458, 34 Ohio Cir. Rep. 260. 43. Rothfeld v. Clerkin, 98 Misc. (N. Y.) 192, 162 N. Y. Suppl. 1056. 608 The Law of Automobiles. CHAPTER XIX. MISCELLANEOUS TRAVELERS— CYCLISTS, RIDERS, ANIMALS IN HIGHWAY. Section 488. Relative rights of cyclists and automobilists. 489. Horseback travelers — duty of machine operators. 490. Horseback travelers — contributory negligence of rider. 491. Use of highway for domestic animals. 492. Violation of law of road — in general. 493. Violation of law of road — meeting and passing cyclist. 494. Violation of law of road— overtaking and passing cyclist. 495. Violation of law of road — cyclist overtaking automobilist. 496. Violation of law of road — meeting cyclist after overtaking other vehicle. 497. Violation of law of road — street intersection. 498. Violation of law of road — turning corners. 499. Violation of law of road — turning or backing in street. 500. Lookout. 501. Speed and control of auto. 502. Warning of approach. 503. Contributory negligence of cyclist — in general. 504. Contributory negligence of cyclist — statutory requirement as to de- gree of care. 505. Contributory negligence of cyclist — proximate cause. 506. Contributory negligence of cyclist — looking for approaching ve- hicles. 507. Contributory negligence of cyclist — care in looking. 508. Contributory negligence of cyclist — crossing in front of observed auto. 509. Contributory negligence of cyclist — speed of cyclist. 510. Contributory negligence of cyclist — warning of approach. 512. Contributory negligence of cyclist — reliance on observance of law of automobilist. 513. Contributory negligence of cyclist — last clear chance doctrine. 514. Contributory negligence of cyclist — ^acts in emergencies. 515. Negligence of guest of cyclist. 516. Function of jury. Sec. 488. Relative rights of cyclists and automobilists. A bicycle or niotorcycle is recognized as a legitimate method of travel on the highways, the right to the use of snch method, however, being subject to a reasonable regard for the rights of other travelers.^ One may use a bicycle for travel on the 1. Richards v. Palace Laundry Co. low, 136 Wis. 46, 116 N. W. 844. (Utah), 186 Pac. 439: Weber v. Swal- Miscellaneous Travelers. 609 highways for pleasure or recreation.^ When using the same street or crossing as an automobile, each party is bound, in view of the place and circumstances, to exercise reasonable care to avoid injury to the other.^ The operator of the auto- mobile does not insure against a collision with a cyclist, and is liable for damages to the latter only in case negligence is shown.* Neglect of due care in the operation of an automo- bile may be found, not only in a violation of the law of the road,^ or the excessive speed of its operation,^ but also through inattention, incompetency, or a mistake in judgment of the driver.^ Statutory or municipal regulations may change the relative rights of travelers in a highway. For example, a municipal ordinance which gives the engines and apparatus of the fire department a right of way over other conveyances, is valid.^ And this is so, though statutes prescribe that owners of motor vehicles shall have the same rights in the public streets as other users of the highways for such a stat- ute is not construed so as to interfere with the police power 2. Cooper v. Scannell (Mass.), 130 N. E. 494. 3. Eadwick v. Goldstein, 90 Conn. 701, 98 Atl. 583; Schrayer v. Bishop & Lyons, 92 Conn. 677, 104 Atl. 349; Lemmon v. Broadwater (Del.), 108 Atl. 273; Frieker v. Philadelphia Rapid Transit Co., 63 Pa. Super. Ct. 381; Heath v. Cook (R. I.), 68 Atl. 427; Weber v. Swallow, 136 Wis. 46, 116 N. W. 84^; Rex v. Wilson, 32 Canada C. C. 102, 50 D. L. R. 117. 4. Radwick v. Goldstein, 90 Conn. 701, 98 Atl. 583; Lemmon v. Board- water, 30 Del. (7 Boyce) 472, 108 Atl. 273; Larsh v. Strasser, 183 Iowa, 1360, 168 N. W. 142; Nordley v. Sorlie, 35 N. Dak. 395, 160 N. W. 70; Parker v. Cartier (R. L), 105 Atl. 393. Instructions to jury. — In an action by a bicyclist to recover damages for personal injuries sustained in a colli- sion with defendant's motor truck, where the evidence is conflicting as to 39 the negligence of the defendant and the contributory negligence of the plaintiff, and the court correctly instructs the jury as to the riglits of the parties if they find one or the other or both guilty of negligence, the court cannot be cliarged with error in failing to say that tliere could be no recovery if neither party was in fault, if it appears that no request was made to so cliarge, and the court did say that if the plain- tiff got "into the position where the accident was practically unavoidable by anybody," he could not recover. Wolf V. Schmidt & Sons Brewing Co., 236 Pa. St. 240, 84 Atl. 778. 5. Chapter XIV. 6. Section 303, ct seq. 7. Frieker v. Philadelphia Rapid Transit Co., 63 Pa. Super. Ct. 381. 8. Sutter v. Milwnukee Board of Fire Underwriters, 164 Wis. 532. 166 N. W. 57. 610 The Law of Automobiles. of municipalities to make regulations for the use of lln' streets.^ Sec. 489. Horseback travelers — duty of machine operators. The driver of a motor vehicle must exercise reasonable care to avoid causing an injury to a person riding on a horse or pony or other animal of burden." The owner of an automo- bile has the same rights on the highways as those riding on horseback, but must operate the machine with due regard for the rights of others; and the speed of the machine, its size, appearance, manner of movement, the danger of operating it upon the highway, and the other surrounding circumstances, will be taken into consideration in determining the care re- quired of such owner." If he needlessly or recklessly runs his machine into the horse of a rider and thereby injures the horse or the rider, he is liable for the injury.^^ When over- taking a person on horseback who apparently does not hear the approach of the car, the operator cannot proceed regard- less of the fact that the rider does not turn out, but the speed of the machine should be slackened." If reasonably neces- sary, the automobile should be brought to a stop.^* The par- ties have equal rights to the use of the highway, and the horse- man is not required to surrender more than half of the beaten track in order that the automobilist may pass.^^ If, when an 56 Okla. 476, 56 Okla 476, 9. Sutter v. Milwaukee Board of Fire Underwriters, 164 Wis. 532, 166 N. W. 57. 10. Traeger v. Wasson, 163 111. App. 572; White v. Rukes, 56 Okla. 476, 155 Pac. 1184. 11. White V. Rukos, 155 Pac. 1184. 12. White V. Rukes, 155 Pac. 1184. 13. Furtado v. 153, 146 Pac. 58. 14. Furtado v. 153, 146 Pac. 58. 15. Traeger v. Wasson, 163 111. App. 572. wherein it was said: "Under the common law and under the statute all parties using the public highway for Bird. 26 Cal. App. Bird, 26 Cal. App. legitimate and lawful purposes have equal rights therein. Had plaintiff and defendant been going in opposite directions and it became necessary for them to pass in the public highway, the law created no greater obligation upon the part of the plaintiff to leave the traveled roadway for the purpose of permitting defendant to pass than it did upon the part of the defendant to leave the traveled roadway for the purpose of pei-mitting plaintiff to pass. WTiile it may be known as a matter of general knowledge that out of curtesy a man traveling upon horseback usually leaves the beaten track for the use of a vehicle for the reason that it may be easier for the horse without a vehicle Miscellaneous Travelers. 611 automobile is passing a nmle ridden along the highway, it suddenly backs directly against the machine, which is well equipped with brakes and under perfect control at the time, but the operator of which is unable to avoid injury, the owner of the mule is not entitled to recover damages.^'' Warning must generally be given of the approach of the machine, but negligence cannot be charged in this respect where the rider .has actual knowledge of the approach of the machine; for, in such a case, the neglect to sound the signal cannot be deemed the proximate cause of the injury.^'^ Of course, the ownei- of the automobile which collides with a horse may recover for damages to the machine, if he shows negligence of the rider and freedom from contributing negli- gence on the part of the driver of the car. Where, in an ac- tion to recover for damages to an automobile, it appeared that the plaintiff while driving his car along the left-hand side of a country road, saw a horseman coming rapidly toward him who was also on the wrong side of the road and turned attached to travel upon that portion of the highway which is not included in the beaten track, the statute does not require that a person travelinn^ upon horseback so do. Under the rule that persons' rights U]>on the public liigh way are equal, plaintiff Lad the right to continue to use at least one-half of the beaten track and the record dis- closes that he did no more than this, that he surrendered the right side of the beaten track for the use of the de- fendant, and that was all that he was required to do. The fact that tlie par tics were going in the same direction instead of in opposite directions im posed no greater obligation upon the plaintiff to leave the beaten track, and the plaintiff was not guilty of con- tributory negligence by traveling on the left side of the beaten track as tlie I'ecord discloses that he did. Tf the de- fendant desired to pass the plaintiff upon the public highway, going in the same direction, he cannot insist that any greater burden should be cast upon tfie plaintiff to permit him to pass than the defendant sliall be reipiired to as- sume for himself. It i> insisted, how- ever, by defendant thnt he did attempt to turn his automobile from the beaten track but that on account of the rough condition of the public highway at that point he was unable to do so, and the car swerved back into the public high- way. Conceding that such condition is iiiwM by the record, it then became the 'liity of the defendant to so manage and control his automobile that he would not run into and against the horse of tlie plaintiff. We are satisfied that the jury were fully warranted in finding the defendant guilty of the negligence charged in the plaintiff's declaration." 16. r.aldwin v. Siuitherman. 171 X. C. 772, 88 S. E. 854. 17. Priebe v. Crandall (Mo. App), 187 S. W. 605. And see section 329. 612 The Law of Automobiles. his car so as to go to the right, and in so doing swung across the path of the horseman, who ran into him, it was held that the negligence of the horseman was established, but that a judgment entered on a verdict in defendant's favor would not be reversed, for there was sufficient evidence of contribu- tory negligence on the part of the plaintiff to sustain the verdict.^^ Sec. 490. Horseback travelers — contributory negligence of rider. As is the case with all classes of travelers on the public highways, a horseback rider is bound to exercise reasonable care for his safety. If he sustains a collision with an automo- bile, as a general proposition, he cannot recover damages for his injuries unless he was free from negligence contributing to the accident. A horseback rider, when approaching an intersecting street, must exercise reasonable caution to avoid injury from a motor vehicle proceeding along such street, but the rule that one about to cross a railroad track must stop, 18. Tompkins v. Barnes, 145 App. horse, and the situation thus presented Div. 637, 130 N. Y. Suppl. 320, where- the question for the jury whetlier this in it was said: "On the question of was exercising that reasonable degree contributory negligence, however, the of care which the law demands as a plaintiff is silent, and as absence of condition of recovery. The jury has contributory negligence is as much a found that the plaintiff is not entitled part of the cause of action as the negli- to recover, and it may well be that, in gence of the defendant, we are unable to considering the evidence, they reached acquiesce in the proposition that the the conclusion that the plaintiff, al- judgment should be reversed. The evi- though generally speaking he is en- dence clearly shows that the plaintiff titled to be upon the right-hand side of ' was on the westerly side of the high- the highway, was not called upon, in way, upon his left hand, when the de- the exercise of reasonable care, to get fendant came into view, the latter upon to the right-hand side of the road in the easterly side of the highway, on the face of this horse, which according his left hand as he approached. There to the testimony, was being ridden was no presumption that the horse recklessly along the highway. The would change his course, and the plain- plaintiff, after seeing the horse, left tiff was not in danger to remain on his a place of safety and ran into the left hand side of the street as he was course of the horse, and it was for the going. Instead of keeping to his jury to determine whether this was course, he testified that he crossed over prudent or not under all of the cir- to his right-hand side of the street, cumstances." directly in the path of the oncoming Miscellaneous Travelers. 613 look, and listen, does not apply to a traveler thus coming out of an intersecting- street into a highway upon which autonio biles are customarily run.^^ When proceeding along the pub- lic highway, a horseback rider is not necessarily guilty of contributory negligence because he does not surrender the en- tire beaten track to the use of a motor vehicle approaching from the rear.^" Nor is a rider necessarily guilty of contril)u- tory negligence because he is driving or leading an unbroken horse along the highway by means of a rope or lariat.^^ Whether the rider has exercised the care of an ordinarily prudent man under the circumstances, is a question which is generally to be left to the jury.^^ Sec. 491. Use of highway for domestic animals. In some jurisdiction^ a dog running unattended along or across a public highway is regarded more in the light of a trespasser than as a lawful traveler along the highway.^ When regarded in this light, the duty of the driver of a motor vehicle is to refrain from intentional or wanton injury to the animal, and he is not liable merely for negligence. But, as- suming a duty to exercise reasonable care to avoid injury to a dog in the street, there can be no liability imposed by the courts merely upon proof of the death of a dog by an auto- mobile, leaving the manner of its death a matter of specula- tion.^* The driver of a motor vehicle traveling at a moderate 19. Studer v. Plumlee. 130 Tenn. driving him aloiigr with no means of 517, 172 S. W. 305. control or cheek. Under these eircum- 20. Traeger v. Wasson, 163 111. App. stances it cannot be claimed that the 572. question was not properly left to the 21. Townsend v. Butterfield, 168 Oal. jury." 564, 143 Pac. 760, wherein it was said: 22. Studer v. Plumlee. 130 Tenn. "Highways are made and maintained 517, 172 S. .W. 305. for the free passage of persons, and of 23. Unlicensed dog. — Under the law their horses and cattle when properly of Massachusetts, an unlicensed dog is controlled. Tliere was no evidence that not a trespasser or outlaw upon the the method of controlling the unbroken public highway, and an automobilist horse by means of a rope or lariat is liable for the negligent killing of fastened to his neck, while taking him the animal. Lacker v. Straups. 226 along the highway, was an improper Mass. 579, 116 N. E. 236. or careless method. The use of a rope 24. Wallace v. Waterhousc. S6 Conn, for that purpose would seem to be a 546, 86 Atl. 10; Flowerec v. Thorn- proper precaution and preferable to berry (Mo. App.),' 183 S. W. 350: 614 The Law of Automobiles. rate of speed may properly assume that a dog running by the side or in front of the vehicle will exercise the ordinary in- stincts of such animals and keep out of danger.^^ Reliance on such assumption can continue, however, only until it appears that the animal may not avoid collision with the machine; when it appears that the dog is threatened with injury, it is the duty of the chauffeur to exercise reasonable care to avoid the danger. Even in the case of a horse which may lawfully be upon the highway, it is necessary for its owner to prove negligence in case the horse is injured or killed by an automobile. But, it has been held, where a person tied his horse to a hitching post at the curb of the street and a few minutes later discovered that the animal had been injured by the defendant's automo- bile, that the doctrine of res ipsa loquitor placed the burden on the defendant of explaining that the accident did not occur from want of care on his part.^^ One may use the highways for the purpose of leading or driving horses or stock. Such use of the highway is lawful and an automobilist is required to exercise reasonable care to avoid a collision mth such animals.^'^ As in other cases, O'Hara v. Gould, 84 N. J. L. 583, 87 cause of it." Wallace v. Waterhouse, Atl. 117. "It would be «asy to sur 86 Conn. 546, 86 Atl. 10. "It appears mise a variety of things entering, as that during the day-time the accident acts of causation, into the injury of the took place. A dark-colored auto driven dog, which might have occurred in ad- H ^^^ defendant passed in the street. dition to these determinable factors The witness saw the dog in the road, and consistent with them. Such addi- ^^'^ *^^* ^^ "^^^ run over by the auto. tional factors in the situation might ^^^^^ ^^^ "^t slow up, but was going point to a lack of care on the part of ^* ^ moderate rate of speed. The wit- the driver of the automobile. They "^^^ afterwards saw the dog lying in easily might, on the other hand, dem- ^^^ '•°^'^- ^^ ^^'^ ^« *^« ^^ ^^^^^- . ^ ^, ^ , . , , , both auto and dog were lawfully in the onstrate that he AA-as free from blame. , . mi . . , , ,.,,,,, ., , , street. J.here is no evidence of cave- and that the dog was responsible for , , . . ^, <• . .i . ■. ° ^ less driving. The mere fact that it ran his own death. No light was thrown -, . . , ^ • . i. v ° over a dog is not suincient to charge upon these matters of possible con- ,. , , .. , ^ ^ negligence, much less can it support a trolling importance, and the jury was ^^^.^ j^^ ^ ^j^f^i j„.^^ » q,jj^^^ ^, left to conjecture as to what occurred (l^ould 84 N" J L 583 87 \tl 117 and what the real proximate cause of 25. FloAveree v. Thornberry (Mo. the killing of the animal was. The im- A^p.), 183 S. W. 359. proper speed of the automobile may 26. Whitwell v. Wolf, 127 Minn. have ooncurred in point of time with 529 J49 x. W. 299. the dog-s injury without being the 27. Maddox v. Jones (Ala.). 89 So. Miscellaneous Travelers. 615 lie does not insure against injury.^ So, too, the one having charge of the animal must exercise reasonable care to avoid a collision with the motor vehicle.^ The questions of negli- gence and contributory negligence are generally for the jury.^- One who is driving cattle upon a traveled highway must use reasonable care to keep the cattle upon the right side of the highway; and if they get upon the wrong side of the road, ' in a city street leading the horse that was killed behind a buggy. He found him- self in the rear of two coal wagons which were keeping to the right, so that he wus compelled to turn to the left. After passing one wagon and be- ing still opposite to the second, he saw an automobile approaching at a rapid rate, with one wheel in the c^r track. Finding that he had not room between the automobile and the coal wagon, he turned further to the left until he came within two feet of the curb. The au- tomobile passed the buggy, then in- clined to the right and struck the horse. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained. Everett v •^tiirires. 46 Pa. Super (>. 612. 616 The Law of Automobiliss. the driver suffers them to travel upon this side, he is bound to use more care and keep a better lookout for approaching vehicles than would be required of him if the cattle were upon the right side, either by notice, or other means, in order to avoid collision between the cattle and the approaching vehicle. Only such care under the circumstances would be reasonable care.^^ But, under statutes prohibiting the run- ning loose of stock and animals on the public highways, the owner of a mule may be precluded as a matter of law, from recovering damages for an injury to the animal.^^ If, by reason of the negligence of the owner of the horse, it causes injury to an automobile or to an occupant thereof, the owner of the animal may be liable for the damages.^ Thus, if the owner of a horse leaves the same unattended and untied in a city street, thereby violating an ordinance of the city, and it runs away and runs into the plaintiff's automo- bile, the violation of the ordinance may be considered negli- gence per se, and the owner of the machine may recover for injuries proximately resulting from the violation.^* And the owner of an automobile may be allowed to recover for in- juries thereto occasioned by a collision with a dog.^^ Sec. 492. Violation of law of road — in general. As a general proposition, a cyclist is subject to the law of the road.^^ In case a collision occurs between an automobile 31. Andrews v. Dougherty (Conn.), v. Condon. 14 Ala. App. 332. 70 So. 112 Atl. 700. 208. 32. Dillon v. Stewart (Tex. Civ. 34. Hill v. Condon, 14 Ala. App. 332, App), 180 S. W. 648. 70 So. 208. 33. Marshall v. Suburban Dairy Co. 35. Tasker v. Arey, 114 Me. 551. 96 (N. J.), 114 Atl. 750; Stevens v. Sas- Atl. 737. But see Melicker v. Sedlacek katoon Taxicab Co., 45 D. L. R. (Iowa), 179 N. W. 197, where the ac- ( Canada) 763. tion failed because viciousness of the Insurance on automobile. — ^The fact do^ was not shown, that the owner of an automobile car- Sow in road. — See Higgins v. Searle. ries insurance thereon as against acci- 100 L. T. (Eng. ) 280. dent and has collected such insurance Sheep.— Owner of sheep in highway moneys, is not admissible for tlie pur- not liable for injury to automobilist. pose of reducing the damages recover- Heath's Garage v. Hodges (1916), 2 able for the defendant's n^ligence in K. B. (Eng.) 370. permitting the horse to run away. Hill 36. Clarke v. Woop, 159 N. Y. App. Miscellaneous Travelers. 617 and a bicycle or motorcycle, and the automobile is found to have violated the law of the road in beini^ on the wrong side of the highway, a presumption arises that the chauffeur was guilty of negligence.^"' That is, a prima facie case of negli- gence is presented upon proof that the automobile was on the wrong side of the highway at the time of the collision.^ So, too, contributory negligence may be charged against the cyclist when he is the one who is traveling on the wrong side of the street or highway.^^ The use of the wrong side of the highway may be excused by the exigencies of the occasion, so as to carry the question of negligence to the jury, as, for example, when it is necessary to make a diversion from the usual course in order to avoid an obstruction or an injury to another.^" So, too, one may be justified in using the wrong side of the highway when such course is necessary to avoid injury to the plaintiff or to some other traveler." Moreover, it is necessary that the injuries be such as proximately result from the violation of the law of the road,*^ but, in accidents of this character when one turns to the wrong side of the highway and there strikes a cyclist, whether the injuries are the proximate cause is easily a question for the jury.*^ Sec. 493. Violation of law of road — meeting and passing cyclist. In this country, the law of the road requires that the driver of an automobile shall turn to the right upon meeting another traveler.** If, at the time of a collision with a bicycle or Div. 437, 144 N. Y. iSuppl. 595. And 39. Section 510. see section 245. 40. Potter v. Glassell, 146 La. 687. 37. Slaughter v. Goldberg, Bowen & 83 So. 898 ; Clarke v. Woop, 159 N". Y. Co., 26 Cal. App. 318, 147 Pae. 90; App. Dir. 437, 144 N. Y. Suppl. 595. Cooke V. Jerome, 172 N. Car. 626, 90 41. Clarke v. Woop, 159 N. Y. App. S. E. 767; Johnson v. Heitman, 88 Div. 437, 144 N. Y. Suppl. 595; Cooke Wash. 595, 153 Pac. 331; Hartley v. v. Jerome, 172 N. Car. 626, 90 S. E. Lasater, 96 Wash. 407, 165 Pac. 106. 767. See also Grulich v. Paine, 231 N. Y. 42. Weaver v. Carter, 28 Cal. App. 311; Walleigh v. Bean, 248 Pa. St. 339, 241, 152 Pac. 323. 93 Atl. 1069. And see section 267. 43. Baillargeon v. Neyers (Cal.). 182 38. Clarke v. Woop, 159 N. Y. App. Pac. 37. Div. 437, 144 N. Y. Suppl. 595; Casey 44. Section 249. V. Boyer (Pa.), 113 Atl. 364. 618 The Law of Automobiles. motorcycle the automobile is on the wrong side of the street, a prima facie case of negligence is presented."^ Particularly is this so, when the approaching cyclist is in plain view of the operator of the motor vehicle.*^ In some States a violation of a statute regulating the law of the road is considered neg- ligence 2jer se.^'^ And, when both travelers are proceeding on their respective sides of the street or highway, but the driver of the automobile suddenly crosses the road a short distance in front of the cyclist, ordinarily a fair question of negligence is presented for the consideration of the jury."^ Where the complaint alleges that the defendant's automobile suddenly crossed the street without warning and struck the plaintiff, a specific allegation of negligence is not necessary, for the act of the defendant in such a case necessarily gives rise to ar. inference of negligence.'*^ But, where a bicyclist continues to ride on the wrong side of the road along which a motor car is approaching in full view from the opposite direction, and maintains that position until the motorist in order to avoid a collision turns to the left, and the bicyclist is killed owing to the fact that he turns to the right at the same time, the motorist is not liable.^^ And it has been held that the driver of an automobile, as a matter of law, is not negligent in travel- ing along the traveled roadbed of the highway, for one can not be said to be on the ''wrong" side of the highway when he is following the usual course of travelers.^^ 45. Slaughter v. Goldberg, Bowen & 47. Lemmon v. Broadwater, 30 Del. Co., 26 Cal. App. 318, 147 Pac. 90; (7 Boyce) 472, 108 Atl. 273. And see Schnabel v. Kafer, 39 S. Dak. 70, 162 sections 267, 297. N. W. 935; Figueroa v. Madero (Tex. 48. Parmenter v. McDougall, 172 Cal. Civ. App.), 201 8. W. 271; Harris v. 306, 156 Pac. 460; Brandenberg v. Parks (Utah), 196 Pac. 1002; Peterson Klehr, 197 111. App. 459. V. Pallis, 103 Wash. 180, 173 Pac. 1021. 49. Herrick v. Oakland Motor Co., 29 And see section 267. • Cal. App. 414, 155 Pac. 1006. 46. Slaughter v. Goldberg, Bowen & 50.' Clarke v. Woop, 159 N. Y. App. Co., 26 Cal. App. 318, 147 Pac. 90; Div. 437, 144 N. Y. Suppl. 595. Konig V. Lyon (Cal. App.), 192 Pac. 51. ISTordley v. Sorlie, 35 N. Dak. 395. 875; Morken v. St. Pierre (Minn.), 179 160 N. W. 70. N. W. 681. Miscellaneous Travelers.' 619 Sec. 494. Violation of law of road — overtaking and passing cyclist. When the driver of an autoinoljile overtakes and desires to pass a bicycle or motorcycle proceeding in the same direction, the law of the road in this country requires that he shall pass to the left side of the cyclist.^^ The requirement that the rear vehicle shall pass to the left is now generally affirmed by statutory enactment.^^ If, without a sufficient legal excuse, he attempts to pass on the wrong side, he may be charged with such damages as proximately result from his wrongful use of the highway.^^ The cyclist should turn to the right so as to afford the faster vehicle a reasonable opportunity to turn to the left. If, however, the cyclist, instead of turning as re- quired by the law of the road, swerves toward the left, the motorist may be justified in attempting to pass on the right side.^ In case of a conflict as to whether the rider of a bicycle turned in the wrong direction, a question within the province of the jury is presented.^^ Reasonable care may forbid the automobilist from attempting the passage near an intersect- ing street where the cyclist might turn toward the left; in case he turns toward the left at the same time that the driver of the auto attempts the passage, the negligence of the respec- tive parties is generally a question for the jury.^^ Sec. 495. Violation of law of road — cyclist overtaking auto- mobilist. In ease a cyclist wishes to pass a motor vehicle, the legnl situation is the same as when a motorist seeks to pass a cyclist. The faster cyclist should turn toward the left in making the passage, the autoist concurrently turning toward the right.^'' 52. Section 252. 241, 152 Pac. 323; Cooke v. Jerome. 53. Statute requiring forward ve- IT'S N. Car. 626, 90 S. E. 767. hide to turn to right.— A statutory 55. Cook v. Jeromo. 172 N. Car. (l^r.. enactment requiring that the forward 90 S. E. 767. vehicle shall turn to the right, im- 56. Cook v. Jerome, 172 N. Car. 62r>. plieflly requires and permits the over- 90 S. E. 767. taking one to pass on the left side. 57. Hartley v. Lasater, 96 Wa-oh. Paschel v. Hunter, 88 N. J. Law, 445, 407, 165 Pac. 106. 97 Atl. 40. 58. Borg v. Larson. 60 Ind. .A.pp. 54. Weaver v. Carter, 28 Cal. App. 514, 111 N. E. 201. 620 The Law of Automobiles. In turning back toward the center of the highway, the cyclist should exercise due care to the end that the movement is made far enough from the automobile that a collision will not ensue. In case the cyclist slips or from some other cause is in a dan- gerous situation after the passage, the driver of the automo- bile should exercise reasonable care to avoid injury to the cyclist.''^ Sec. 496. Violation of law of road — meeting cyclist after overtaking other vehicle. The general rule of the road requires that a motorist, when overtaking a slower conveyance, shall turn to the left.*^*^ The law of the road, however, does not give the driver of the ma- chine a license to pass the slower vehicle under all circum- stances. He can do so only when reasonable prudence per- mits the passing.^^ If he attempts to pass the vehicle at the same time that a cyclist is attempting to pass from the op- posite direction, he may be liable for injuries sustained by the latter.^2 The driver of the automobile is required to exer- cise such care as the circumstances demand.^^ Reasonable care may require that the speed of the machine be much lessened and that it be brought under control so that travelers from the 59. Winslow v. New England Co-op. rear, in passing, towards another vehi- Soc, 225 Mass. 576, 114 N. E. 748. cle that may be approaching in an op- 60. Section 252. posite direction. The approach of the 61. "A person attempting to pass a vehicle in the opposite direction is vehicle ahead of him and going in the simply one of the circumstances which same direction must exercise proper must be considered by the rear man care in so doing. If a vehicle is ap- when he attempts to pass. It is preaching from the opposite direction simply one of the things which demands at the moment when he desires to pass the exercise of care upon his part under the vehicle in front, and the highway all circumstances, and in some circum- is not wide enough to safely accommo- stances he would be required to refrain date all three teams abreast, then it from attempting to pass until the ap- ^!F0uld be the duty of the person in proaehing vehicle had gone by. " Ribaa charge of the rear vehicle, in the exer- v. Revere Rubber Co., 37 R, I. 189, 91 cise of proper care under the circum- Atl. 58. stances, to wait until the vehicle com- 62. Wiley v. Young, 178 Cal. 681, 174 ing in the opposite direction had passed Pac. 316 ; Ribas v. Revere Rubber Co., by before he attempted to turn out. 37 R. I. 189, 91 Atl. 58. It is not necessary to involve the ques- 63. Ribas v. Revere Rubber Co., 37 tion as to the duty of the vehicle in the R. I. 189, 91 Atl. 58. Miscellaneous Travelers. 621 opposite direction may be more easily avoided.''^ In such a situation, the cyclist would be traveling along what to him is the right side of the highway, and he is not charged with knowledge that an automobile will swerve past a vehicle to his side of the road. Sec. 497. Violation of law of road — street intersection. In the absence of statutory or municipal regulation chang- ing the rights of the parties, a cyclist and the driver of a motor vehicle have equal rights at the intersection of street crossings. Each is bound to exercise reasonable precaution to avoid a collision; but, if one is at the intersection decidedly in advance of the other, he is generally allowed the right of Avay, and he has a right to assume that the other will respect his prior right."^ The ordinary rights of the parties may be changed by municipal ordinance. Thus, in behalf of the crowded traffic on some of the busy thoroughfares, ordinances sometimes prescribe that vehicles along such a thoroughfare shall have a right of way over those on cross streets.^'' So, too, traffic laws in some States give a right of way to a traveler approaching an intersecting street from the right." At a street crossing each traveler is expected to keep on the right side of the highway along which he is tT'aveling; and, where the duty is imposed by statute or municipal ordinance, its vio- lation in a few jurisdictions is negligence per .l. 208. parent to one using an instrumentality 41. See Ward v. Meadows (Ala.), 88 that will injure him unless some action So. 427; Rooney v. Levison (Conn.), is taken by the one controlling same to 111 Atl. 794; Kelley v. Keller (Mich.), avert it, and the attitude of the one in 636 The Law of Automobiles. "last chance" rule applies oiily where the defendant actually saw the dangerous situation and not where reasonable care on his part would have enabled him to have seen it.^^ In any event, if the cyclist suddenly places himself in the dangerous position, as when he suddenly swerves in front of the motor vehicle, there is generally no room for application of the last clear chance doctrine/^ That is to say, when the contributory negligence of the cyclist is concurrent with the negligence of the driver of the vehicle, the cyclist cannot recover.** Sec. 514. Contributory negligence of cyclist — acts in emer- gencies. When one riding on a bicycle or motorcycle is suddenly placed in danger of an imminent collision with an automobile driven negligently, he is not expected to use the coolness with danger is apparent for a sufficient length of time for the ordinarily rea- sonable person, using ordinary vigi- lance, to have discovered it, and the user of such instrumentality has at his hands the means, by the exercise of ordinary use of same, to avoid an in- jury, it becomes his duty to so manage his instrumentality as not to cause in- jury, and a failure so to do constitutes negligence and liability under the hu- manitarian rule. The very basis of the rule is that the plaintiff is in a posi- tion of danger from which there is an inability on his part to escape, and that inability may result from a physi- cal cause, as of a foot being caught, which renders him unable to escape, or from a mental state, as of being un- conscious or oblivious to his danger, and for that reason, while his physical state is unimpaired, he is deprived of the mentality to realize his danger and escape it. It therefore becomes most essential, then, in order that there may be a recovery under the humanitarian rule, that a finding be made that to an ordinary person the injured party was apparently oblivious to the danger, in cases where the evidence presented the question that the injured party was oblivious and unconscious of his dan- ger, or on the other hand there must be a finding that the injured party ap- parently could not extricate himself, although conscious of his danger." Al- bright V. Joplin Oil Co. (Mo. App.), 229 S. W. 829. South Carolina. — ^The "last clear chance" doctrine cannot be invoked in South Carolina. Spillers v. Griffin, 109 S. Car. 78, 95 S. E. 133. 42. Maris v. Lawrence Ry. & Light Co., 98 Kans. 205, 158 Pac. 6; Twit- chell V. Thompson, 78 Oreg. 285, 153 Pdc. 45; Alamo Iron Works v. Prado (Tex. Civ. App.), 220 S. W. 282; BuUis V. Ball, 98 Wash. 342, 167 Pac. 942. See also Radwick v. Goldstein, 90 Conn. 701, 98 Atl. 583; Goodman v. Bauer, 60 Ind. App. 671, 111 N. E. 315. 43. Nelson v. Hedin, 184 Iowa, 657, 169 N. W. 37 ; Kalinowski v. Veermann (Mo. App.), 211 S. W. 723; Hartley V. Lasater, 96 Wash. 407, 165 Pac. 106. 44. Rooney v. Levinson (Conn.), Ill Atl. 794; Bullis v. Ball, 98 Wash. 342, 167 Pac. 942. Miscellaneous Travelers. 637 which he would act under normal circumstances/^ His lack of judgment and failure to use the best means to avoid the acci- dent, do not necessarily render him guilty of contributory negligence as a matter of law.*^ A question for the jury is presented." The fact that in the emergency he violates the law of the road by running on the wrong side thereof, does not conclusively establish his negligence.^^ The best means of avoiding the accident might be the stopping of his bicycle as soon as possible, but he is not charged with negligence per se because he attempts to avoid the collision in some other manner.''^ And, if the cyclist, in order to avoid the impending collision, runs his machine into the curb and is thereby in- jured, the injuries received may be deemed the proximate result of the negligence of the automobilist.^" In many juris- 45. "Men who act in emergencies are not to be held to that strict account- ability that the law demands of those who act deliberately. Nor are they to be penalized because they did not do what, in the light of subsequent events, or in theory, would have avoided the accident. Tlie instinct of self-preser- vation and the instinct to refrain from harming others are always present in emergent situations aflfecting personal security. These impulses prompt that which is done, and what is done is usually that which should have been done, or all that could have been done. Hence the law will excuse an act which, if done deliberately or after a lapse of time sufficient for reflection, would make the actor answerable as for a willful tort." Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106. 46. Lebsack v. Moore, 65 Colo. 315, 177 Pac. 137; Walterick v. Hamilton, 197 Iowa, 607, 161 N. W. 684; Pyers V. Tiers, 89 N. J. L. 520, 99 Atl. 130; Wright V. Mitchell, 252 Pa. 325, 97 Atl. 478 ; Sheffield v. Union Oil Co., 82 Wash. 386, 144 Pac. 529; Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106. See also Beickhemer v. Empire Carry- ing Corp., 172 N. Y. App. Div. 866, 158 N. Y. Suppl. 856. 47. Cheney v. Buck (Utah), 189 Pac. 81; Harris v. Parks (Utah), 196 Pac. 1002; Sheffield v. Union Oil Co., 82 Wash. 386, 144 Pac. 529. 48. Potter v. Glassell, 146 La. 687, 83 So. 898; Sheffield v. Union Oil Co., 82 Wash. 386, 144 Pac. 529. 49. Pyers v. Tiers, 89 N. J. L. 520, 99 Atl. 130. 50. Wright v. Mitchell, 252 Pa. 325, 07 Atl. 478, wherein it was said : "If at the time of the accident, the plain- tiff was exercising proper care in pass- ing along the highway, and the defend- ant negligently managed his machine so as suddenly to imperil the safety of the plaintiff, the latter would not be guilty of negligence if, while exercis- ing the caution of a prudent man, his bicycle struck the curb when he was attempting to escape the peril. In that case the proximate cause of the acci- dent would not be the act of the plain- tiff in riding his bicycle against the curb, but the negligence of the defend- ant which endangered the plaintiff's safety. If the plaintiff would have been struck and injured by the defend- 638 The Law of Automobiles. dictions, this general doctrine is limited to cases where the injured person is placed in peril through the negligence of the defendant and without negligence on his part." Sec. 515. Negligence of guest of cyclist. Though a contrary rule prevails in a few jurisdictions, the rule generally adopted in this country is that the negligence of the driver of an automobile is not imputed to a mere guest riding therein.^^ Qne riding as a guest on the rear or side of a motorcycle is to be considered similarly .^^ But, though the negligence of the driver is not imputed to the passenger, the latter nevertheless must exercise reasonable care for his own safety.^'' As in other cases of negligence and contributory negligence, whether reasonable care has been employed is generally a question for the jury.^^ Negligence will not neces- ant's machine had he not deflected from the straight course along the highway as a means of escaping from impending danger, he would not neces- sarily be guilty of negligence if, in at- tempting to escape the danger, he did not exercise the care or judgment re- quired of him if it had been his volun- tary action. All that was required of him to protect himself from the anti- cipated danger was to use the care of an ordinarily prudent man, under all the circumstances, and, if he did so. he could not be charged with negligence. When a person has been put in sudden peril by the negligent act of another, and, in an instinctive effort to escape from that peril, falls upon another peril, it is immaterial whether under different circumstances he might and ought to have seen and avoided the latter danger." 51. Newmann v. Hudson County Co., 155 N. Y. App. Div. 271, 139 N. Y. Suppl. 1028, wherein it was said: "If the child, in the exercise of due care, had found herself in a position of dan- ger caused by the negligence of the de- fendant, and became frightened sud- denly, then, of course, she was not chargeable with the exercise of what in a moment of calmness would be ordi- nary care, and she should .not be charge- able with blame in turning the bicycle to the south and running in front of the oncoming motor truck in order to avoid it, but such rule applies only to a case where the person injured was put in a position of danger through the negligence of the defendant, and without any negligence on his or her part, and the court should have so stated. ' ' See also Corning v. Maynard, 179 Iowa, 1065, 162 N. W. 564. 52. Section 679. 53. Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642; Parmenter V. McDougall, 172 Cal. 306. 156 Pae. 460; Wiley v. Young, 178 Cal. 681, 174 Pac. 316; Sanders v. Taber, 79 Oreg. 522, 155 Pac. 1194. 54. Parmenter v. McDougall, 172 Cal. 306, 156 Pac. 460; Bell v. Jacobs, 261 Pa. 204, 104 Atl. 587. 55. Pai-raenter v. McDougall, 172 Cal. 306, 156 Pac. 460; Simpson v. Schiff (Kans.), 197 Pac. 857. Miscellaneous Travelers. 639 sarily be charged against the guest merely because he has reason to believe that the cyclist was usually careless; but such fact is merely one of the circumstances to be considered by the jury in determining whether the guest has exercised proper care.^*' But, though the negligence of the cyclist will not be imputed to the guest, there may remain the question whether the negligence of the automobilist was a proximate cause of the accident, or whether the negligence of the cyclist was the sole cause of the accident; in the latter event, the automobilist is not liable for the injury to the guest." Sec. 516. Function of jury. As in other cases of negligence, when a cyclist is bringing an action for injuries received from a collision with a motor vehicle, the negligence of the defendant and the contributory negligence of the plaintiff are generally questions for the jury.^^ As has been said,^^ ''It is well established that if the 56. Wiley v. Young (Cal.), 174 Pac. 316. 57. Karpeles v. City Ice Delivery Co.. 198 Ala. 449, 73 So. 642; Hagenah v. Bidwell (Cal. App.), 189 Pac. 799: Lemmon v. Broadwater, 30 Del. (7 Boyce) 472, 108 Atl. 273. 58. Arizona. — Benton v. Regeser, 20 Ariz. 273, 179 Pac. 966. California. — Townsend v. Keith, 34 Cal. App. 564, 168 Pac. 402 ; Whitelaw V. McGillard, 179 Cal. App. 349, 176 Pac. 679; Christy v. McCall (Cal. App.), 177 Pac. 507; Guderitz v. Boad- way Bros., 39 Cal. App. 48, 177 Pac. 859; Baillargeon v. Neyers, 180 Cal. 504, 182 Pac. 37; Brimberry v. Dud- field Lumber Co., 191 Pac. 894; Konig V. Lyon (Cal. App.), 192 Pac. 875. Illinois.— noAg.es v. Coey, 205 111. App. 417; Thomas v. Howatt, 210 J\\. App. 380. Indiana.. — Fame Laundry Co. v. Henry (Ind. App.), 131 N. E. 411; Nordyke & Marmon Co. v. Smith (Ind. .Vpp.), 131 N. E. 414. Iowa. — Nelson v. Hedin, 184 Iowa, 657, 169 N. W. 37; Dice v. Johnson. 175 N. W. 38; Powell v. Alitz, 182 N. W. 236. Kansas. — Keil v. Evans, 99 Kans. 273, 161 Pac. 639; Simpson v. SchifF (Kans.), 197 Pac. 857. Massachusetts. — Hallett v. Crowell. 232 M^s. 244, 122 N. E. 264. Michigan. — Vezina v. Shermer, 165 N. W. 697; Dier v. Voorhees, 200 Mich. 510, 167 N. W. 26; Rotter v. Detroit United Ry., 171 N. W. 514; Ward v. De Young, 177 N. W. 213; Black v. Parke, Davis & Co., 178 N. W. 700; Kelley v. Keller, 179 N. W. 237. Minnesota. — Riser v. Smith, 136 Minn. 417, 162 N. W. 520; Kelly v. McKcon, 139 Minn. 285, 166 N. W. 329; Williams v. Larson. 140 Minn. 468. Mississippi. — Porter v. Nesmith, 87 So. 5. Missouri. — Roy v. North Kansas City Development Co. (Vo. App.), 209 S. W. 990; Meredith v. Claycomb (Mo. App.), 216 S. W. 794. 540 The Law of Automobiles. evidence in a personal injury action for negligence is con- flicting, or, if not, if the inferences to be drawn therefrom are doubtful and uncertain, then the questions of negligence are for a jury." Where there is a conflict in the evidence as to whether a collision between the plaintiff's bicycle and the defendant's automobile was caused by the defendant sud- denly turning to the left-hand side of the street and thereby striking the plaintiff, who was coming from the opposite di- rection, or by the sudden veering of the plaintiff's bicycle, a question arises for the jury.'''^ Whether the acts of negligence alleged were the proximate cause of the damages resulting from a collision of the plaintiff's motorcycle with the defend- ant's automobile, is a jury question.^'i i^ an action for negli- gent injuries claimed to have resulted from the collision of a motorcycle and an automobile, the owner of which is shown by undisputed evidence to have failed in complying with the statute requiring the driver of a motor vehicle to keep to the right of street intersections in turning corners, while the bicyclist was claimed to have been negligent, under disputed testimony, in failing to avoid the accident, the question of negligence and of contributory negligence were held to be for the jury.^'^ Nexo Hampshire.— Whitnej v. Carr, App.), 217 S. W. 440. 106 Atl. 37. Utah.— Cheney v. Buck, 189 Pac. 81. New Jersey. — Siegeler v. Nevweiler, Washington.— Clark v. Wilson, 108 91 N. J. L. 273, 103 Atl. 349 ; Des- Wash. 127, 183 Pac. 103 ; Walmsley v. mond V. Basch & Greenfield, 108 Atl. Pickrell, 186 Pac. 847. 362. Wisconsin. — Slack v. Joyce, 163 Wis. New Yorfc.— Linneball v. Levy Dairy 567, 158 N. W. 310 ; Dunkel v. Snaith, Co., 173 N. Y. App. Div. 861, 160 N. Y. 168 Wis. 257, 169 N. W. 567. Suppl. 114. 59. Priedrich v. Boulton, 164 Wis. North Carolina.— Cooke v. Jerome, 526, 159 N. W. 803. 172 N. Car. 626, 90 S. E. 767. 60. Harris v. Pew, 185 Mo. App. 275, Fennsylvania.—\Ya\]eigh v. Bean, 248 170 S. W. 344. Pa. St. 339, 93 Atl, 1069 ; Pickering v. 61. F, J. Cooledge & Sons v. John- Snyder, 113 Atl. 375. son-Gewinner Co., 17 Ga. App. 733, 88 South Dalcota.— Cameron v. Miller, S. E. 409 ; Weber v. Beeson, 197 Mich. 180 N. W. 71. 607, 164 N. W. 255. Texas.— A\amo Iron Works v. Prado 62. Reed v. Martin, 160 Mich. 253, (Civ. App.), 220 S. W. 282; Templeton 125 N. W, 61. V. Northern Texas Traction Co. (Civ. Frightening Horses. 641 CHAPTER XX. FRIGHTENING HORSES. Section 517. In general. 518. Degree of care to avoid frightening horses. 519. Auto driver not an insurer. 520. Notice that horses take fright. 521. Proximate cause. 522. Horse not on highway. 523. Automobile left unattended by side of highway. 524. Noise — usual noise. 525. Noise — unusual noise. 52G. Noise — failure to sound horn. 527. Emission of smoke or vapor. 528. Speed. 529. Operating auto in proximity to horse. 530. Stopping — independently of statute. 531. Stopping — discretion as to stopping. 532. Stopping — overtaking and passing frightened horse. 533. Stopping — stopping engine. 534. Stopping — statutory duty to stop on fright of horse. 535. Stopping — stopping in front of horse after passing. 536. Statute requiring stopping on signal — in general. 537. Statute requiring stopping on signal — discretion as to stopping. 538. Statute requiring stopping on signal — effect of failure to give signal. 539. Statute requiring stopping on signal — signal by passenger. 540. Negligence after stop. 541. Lights on machine. 542. Contributory negligence — general duty of driver of carriage to ex- ercise reasonable care. 543. Contributor}' negligence— leaving horse unattended. 544. Contributory negligence — nature of horse. 545. Contributory negligence — driving frightened horse past automobile. 546. Joint wrong-doers. 547. Pleading. 548. Punitive damages. 349. Questions for jury. Sec. 517. In general. Owners of animal-drawn and motor vehicles have eqnal rights in the streets and highways, subject to the exercise of reasonable care by each with respect to the rights of the other.^ 1. Arkansas. — Russ v. Strickland, 130 Ark. 406, 197 S. W. 709. 41 642 The Law of Automobiles. Therefore the fact, standing alone, that a horse becomes frightened by the operation of an automobile in a street does not render the motorist liable for an injury thus incurred.^ And, though the owner of an animal may be aware of its tendency to become frightened at the approach of an automo- bile, he is not guilty of negligence in driving it along a street or highway.^ In all cases the principle controls that reason- able care is required of all users of the public thoroughfares. It is the duty of the driver of an automobile in every case where he sees an animal is liable to, or is becoming, frightened by the operation of the car to exercise such care as a reason- ably prudent man would under the same circumstances ;^ and, if it appears that from his failure to exercise such care injury has resulted, he will be liable therefor.^ Delaware. — Walls v. Windsor, 5 Boyce's (28 Del.) 265, 92 Atl. 989. Indiana.- — Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762; East v. Amburn, 47 Ind. App. 530, 94 N. E. 895. "Counsel insists that one operat- ing an automobile has the same rights to the use of the streets as one operat- ing any other kind of vehicle. So he has; and he is also charged with the same degree of care and caution, and the same regard for the rights of others in the use of the streets. We desire to make no distinction in favor of or against the operator of an automobile, but it is his duty, 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 of the highway." East V. Amburn, 47 Ind. App. 530, 94 N. E. 895 Missouri. — Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122. Montana. — "The drivers of horse- drawn vehicles have the same right to use the public streets as street cars or automobiles — neither more nor less ; none of them may go blithely along in- different to the danger of others, but each must be operated so as to prevent doing avoidable injury to others, stop- ping if and when necessary to that end." Anderson v. Missoula St. Ry. Co., 54 Mont. 83, 167 Pac. 841. Nehraslca. — Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128. New YorTc. — Knight v. Lanier, 69 N. Y. App. Div. 454, 74 N. Y. Suppl. 999. Tennessee. — Coca Cola Bottling Works V. Brown, 139 Tenn. 640, 202 S. W. 926. And see section 49. 2. Hall V. Compton, 130 Mo. App. 675; 108 S. W. 1122; Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128. See also Walls V. Windsor, 5 Boyce's (28 Del.) 265, 92 Atl. 989. And see section 519. 3. Butler v. Cabe, 116 Ark. 26, 171 S. W. 1190. 4. Arl'onsas. — Russ v. Strickland, 130 Ark. 406, 197 S. W. 709. Illinois. — Traeger v, Wasson, 163 111. App. 572. Iowa. — Pekarek v. Myers, 159 Iowa, 206, 140 N. W. 409. Minnesota. — Nelson v. Holland, 127 Minn. 188, 149 N. W. 194. NeirasJca. — Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128. Texas. — Blackwell v. McGrew (Civ. App.), 141 S. W. 1058. 5. Illinois. — Fitzsimmons v. Snyder, Frightening Horses. 643 Sec. 518. Degree of care to avoid frightening horses. It is a fundamental rule that the operator of a motor vehicle is bound to exercise reasonable care to prevent injury to othei- travelers in the highway.^ This general rule includes, not only the duty to avoid actual collisions with other conveyances, but also the obligation of using reasonable care to operate the machine in such a way that horses and other animals will not be frightened thereby. One driving a horse may rely on the exercise of reasonable care by the operator of an automo- bile approaching from the rear, and in using a street fre- quented by automobiles he assumes only the risk of their operation in a reasonably careful manner."^ It is a rule of the common law that, although one may travel with a con- veyance which is likely to frighten horses, yet, while doing so, he must exercise reasonable care to avoid injury to others lawfully using the highway.^ The fact that motor vehicles are novel and unusual in appearance and for that reason are likely to frighten horses, is no reason for prohibiting the use of such machines.^ It is, however, the duty of one operating a motor car to take all reasonable precautions against frightening horses or other domestic animals on the high- way.^" But, if the driver of an automobile proceeds wnth due 181 111. App. 70; Freeze v. Harris, 162 Div. 121, 92 ^;. Y. Supp. 2d3. See also 111. App. 118. Upton V. Windham, 75 Conn. 288, 53 lowo.— Staley v. Forest, 157 Iowa, Atl. 660. 188, 138 N. W. 441. 9. Indiana Springs Co. v. Brown, 165 Maine.— BlRckden v. Blaisdell. 113 Ind. 465, 74 N. E. 615, 1 L. R. A. Me. 567, 93 Atl. 540. (N. S.) 238, 6 Ann. Cas. 656. .Vnd see Minnesota. — Nelson v. Holland, 127 sections 47, 48. Minn. 188, 149 N. W. 194. 10. Arkansas. — Kuss v. Strickland, iVeferoi-fco.— Schueppe v. Uhl, 97 Neh. 130 Ark. 406, 197 S. W. 709. 328, 149 N. W. 789. /«tnot*.— Traeger v. "Wasson, 163 HI. Smith Daliota. — Van Horn v. Simp- App. 572. son, 35 S. D. 640, 153 N. W. 883. Indiana. — Indiana Springs Co. v. Texas. — Carsey v. Hawkins, 163 S. Brown, 165 Ind. 465, 74 N. E. tilS, 1 W. 586, 165 S. W. 64. L. R. A. (N. S.) 238, 6 Ann. Cas. 656; 6. Section 277. Brinkman v. Pacholko, 41 Ind. App. 7. Delfs V. Dunsliec, 143 Iowa, 381. 062, 84 N. E. 762; East v. Arabnrn, 47 122 N. W. 236. Ind. App. 530, 94 N. E. 895. 8. Harris v. Hicks (Ark.), 221 S. W. 7o7r(T.— Strand v. Grinnell Automo- 472; Murphy v. Wait. 102 N. Y. App. )>ile Garage Co., 136 Iowa, 68, 113 N. G44 The Law of Automobiles. care and with a proper regard to the rights of other travelers having equal rights in the street, he is not liable for injuries occasioned by the frightening of a horse.^^ The degree of care to be exercised by the driver of the automobile depends upon the circumstances of each particular case, such as the disposition of the horse, the natural surroundings, and the size and appearance of the auto.^^ In many States statutes have been passed prescribing the degree of care to be exer- W. 488; Delfg v. Dunshee, 143 Iowa, 381, 122 N. W. 236; Pekarek v. Myers, 159 Iowa, 206, 140 N. W. 409. Kentucky. — Shinkle v. McCullough, 116 Ky. 960, 77 S. W. 196. Minnesota. — Nelson v. Holland, 127 Minn. 188, 149 N. W. 194. Mississippi. — Burcliam v. Robinson, 113 Miss. 527, 74 So. 417. Missouri. — Hall v. Compton, 130 Mo. App, 675, 108 S. W. 1122; Graham v. Sly, 177 Mo. App. 348, 164 S. W. 136. NebrasJca. — Tyler v. Hoover, 92 Nob. 221, 138 N. W. 128. New YorJc. — Knight v. Lanier, 69 N. Y. App. Div. 454, 74 N. Y. Suppl. 999. South Dakota. — Van Horn v. Simp- son, 35 S. Dak. 640, 153 N. W. 883. Tennessee. — Coco Cola Bottling Works V. Brown, 139 Tenn. 640, 202 S. W. 926. Texas. — Blackwell v. McGrew (Civ. App.), 141 S. W. 1058. High degree of care. — Statutory pro- visions in some states may require that the driver of an automobile exercise the "highest" degree of care when traveling along a public highway. Hufft V. Dougherty, 184 Mo. App, 374, 171 S. W. 17. Such a provision is consti- tutional. Hays V. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 19180 715, Ann. Cas. 1918E 1127. And see section 281. " Every reasonable precaution." — Statutes 1903, c. 463, § 7 of Massachu- setts required that the driver of one ' ' approaching ' ' any vehicle drawn by a horse or horses, shoitld operate, manage and control such automobile 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 per- son riding or driving the same. Under this statute it was held that an auto- mobile overtaking a horse-drawn vehi- cle from behind, was "approaching" within the meaning of the statute. Gifford V. Jennings, 190 Mass. 54, 76 N. E. 233. 11. Hall V. Compton, 130 Mo. App. 675, 108 S. W. 1122. 12. Giles V. Voiles, 144 Ga. 853, 88 S. E. 207; Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656; Delfs V. Dunshee, 143 Iowa, 381, 122 N. W. 236. Loading of machine. — In Pease t. Cochran (S. D.), 173 N. W. 158, 5 A. L. R. 936, where negligence was charged in the unusual appearance of the load on the machine, the court said: "In order to constitute actionable negli- gence on this branch of the case, there must have been something about the appearance of the car or the manner in which it was loaded that would sug- gest to an ordinarily prudent man that it would terrify or frighten an ordi- nary horse, i. e., a horse that had be- come accustomed to automobiles on the road. There are horses that would take fright at any automobile, regard- leas of whether it was loaded at all; Frightening Horses. (54') cised by automobilists and in some cases the course of con- duct to be pursued by them.^^ Such a statute may be held to apply, not only in the case of animals in harness, but also where animals are being conducted or driven along a highway by a drover." Sec. 519. Auto driver not an insurer. While the driver of an automobile is required to use reason- able care to avoid frightening horses, he does not insure that horses will not become frightened at the approach of his car or that he will answer for the injuries occasioned by their fright.^^ As was said in one case,^" ''The frightening of a horse driven or ridden along a public highway caused by en- countering a vehicle or pedestrian does not, of itself, raise any inference of negligence on the part of the pedestrian or the driver of the vehicle. The law contemplates that all sorts of people and all kinds of conveyances may use the highway with equal right and, as long as the driver of a lawful vehicle observes the laws of the road and proceeds with the degree of care to be expected of an ordinarily careful and prudent person in such situation, he cannot be held liable for an in- jury caused by the fright of the animal at his appearance or at that of his conveyance." One injured by the fright of but people are not required to refrain Pac. 1135; Arrington v. Horney, 88 from using automobiles on the high- Kan. 817, 129 Pac. 1159; Cra.ton v. way to avoid frightening such horses, Huntzinger, 163 Mo. App. 718, 147 S. and a person taking such horse on the W. 512; Curry v. Fleer, 157 N. C 16, highway would do so at his own peril. 72 S. E. 626. On the other hand, there are horses Sufficiency of indictment <>r inior- that would not take fright at an auto- mation under a statute. See Holland mobile, no matter how it might be v. State. 11 Ga. App. 769. 76 S. E. 104; loaded or what its appearance might Coryell v. State. 92 Neb. 482. 138 N. be. But this fact would not justify a W. 572. person in going upon a highway with 14. Fitzsimmons v. Snyder, 81 111. an automobile so loaded, or having such App. 70. an appearance, that it would be cal- 15. Giles v. Voiles. 144 Ga. 853, 88 culated to frighten or terrify an ordi- S. E. 207; Hall v. Compton, 130 Mo. nary horse." App. 675. 108 S. W. 1122. 13. See the following cases: Walls 16. Hall v. Compton, 130 Mo. App. V. Windsor (Del. Super.), 92 Atl. 989; 675, 108 S. W. 1122. Ell.sworth V. Jarvis, 92 Kan. 895. 141 64.6 The Law of x\utomobiles. horses necessarily assumes the burden of showing the negli- gence of the driver of the automobile." Thus, it is error for the presiding justice to charge broadly that : ' ' The degree of diligence which nmst be exercised in a particular exigency is such as is necessary to prevent injuring others. "^^ "Auto- mobiles are constantly driven along streets pasl horses with- out frightening them, and if the appearance and movement of a particular automobile and the noise incident to its opera- tion are in no way unusual, it is not per se a wrongful act to operate it in x>roximity to a horse, so long as the horse ex- hibits no fright. "^^ Thus, where the automobile was of ordi- nary appearance and no unusual noise was produced and it was operated at a low rate of speed and there was no evi- dence to show that the operator of the machine had any rea- son to suppose that a team of horses was likely to become 17. Delowore. — ^^Yalls v. Windsor, 92 Atl. 989. Georgia. — Giles v. Voilea, 144 Ga. 853, 88 S. E. 207. Iowa. — Gearliart v. Stouder, 161 Iowa, 644, 143 N. W. 499; Ciesswell V. Wainwright, 154 Iowa, 167, 134 N. W. 594 ; Gipe v. L;^Tich, 155 Iowa, 627, 136 N. W. 714. Kentucl'.y. — Slielton v. Hunter, 162 Ky. 531, 172 S. W. 950. Mame. — Carter v. Potter, 110 Me. 545, 86 Atl. 671. Missouri. — Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; Sapp v. Hunter, 134 Mo. App. 685, 115 S. W. 463; Fields v. Sevier, 184 Mo. App. 685, 171 S. W. 610. New York. — Barnett v. Anheuser- Busch Agency, 134 N. Y. Suppl. 734. Tennsylvania. — Silberman v. Huy- ette, 22 Montg. Co. L. Eep. 39. Texas. — Kiley v. Fisher (Civ. App.), 146 S. W. 581. TJtdh. — Fowkes v. J. I. Case Thresh- ing Mach. Co.. 46 Utah, 53, 151 Pac. 53. Washmgton. — Yttregarl v. Young, 77 Wash. 523, 137 Pac. 1043. Statute of limitations. — Action for injuries alleged to be due to frighten- ing of horses by an automobile, held to be barred by the statute of limita- tions of Connecticut. Sharkey v. Skil- ton, 83 Conn. 503, 77 Atl. 950. 18. Giles V. Voiles, 144 Ga. 853, 88 S. E. 207, wherein it was said: "In stating the degree of diligence that the defendant was required to observe, the court informed the jury that he was bound to a degi-ee of diligence which would prevent injury to the defendant. This, in effect, imposed upon the de- fendant the duty of observing the dili- gence required of an insurer, and eli- minated all such questions as accident, contributory negligence, and the duty of the plaintiff to exercise ordinary care to avoid the consequences of the defendant's negligence. It was the equivalent of instructing the jury that it was the duty of the defendant to avoid injury to the plaintiff's property at all events." 19. O'Donnell v. O'Neil, 130 Mo. App. 360, 109 S. W. 815; Pease v. Cochran (S. D.), 173 N. W. 158, 5 A. L. R. 936. Frightening Horses. 647 frightened and after the horses had become frightened noth- ing could have been done by him to avoid the accident, as it happened instantly and the horses in a few seconds were free from the vehicle and dashing along the street, it was held that he was in the exercise of reasonable care and not liable to one injured by the runaway team,^'' And where, in an ac- tion for damages occasioned by the frightening of plaintiff's team by the operation of defendant's automobile, it appeared that the team pulled back and escaped immediately on the stopping of the automobile, and it did not appear that, had the defendant arrested the sparker as soon as he saw or might have seen that the team was frightened, it would have been in time to have obviated their escape, or that he could have done anything to have stopped their fright after he might have discovered it, he was not guilty of negligence war- ranting a recovery.^ Sec. 520. Notice that horses take fright. The operator of an automobile propelled by a gasoline engine is charged with notice of the fact that horses may be frightened thereby, and is bound to exercise reasonable care to handle his machine in such a manner as to avoid frighten- ing horses lawfully on the highway.^^ 20. Simmons v. Lewis, 146 Iowa, ToO, 4 L. R. A. (N. S.) 1130, 8 Ann. 316, 125 N. W. 194. Gas. 1087; Gaskins v. Hancock. 156 21. House V. Cramer, 134 Iowa, 374, N. C. 56, 72 S. E. 80. 112 N, W. 3, 13 Ann. Cas. 461, 10 L. Excuse for failure to observe fright R. A. (N. S.) 655. ened horses. — It is no justification for 22. House v. Cramer, 134 Iowa, 374, tlie failure uf the driver of an auto- 112 N. W. 3, 13 Ann. Cas. 461, 10 L. mobile to look ahead and observe the R. A. (N. S.) 655; Hall v. Compton. fright of horses drawing an approach- 130 Mo. App. 675, 108 S. W. 1123. It ing carriage that it is necessary for is incumbent upon a person driving an him to keep his eyes and attention automobile along a highway to take no- fixed on the track of the road to enable tice that motor cars are, as yet, usually him to guide the machine by the car- strange objects to horses, and are likely riage safely and to avoid chuck holes t(i startle the animals when driven up and other obstacles. Mclntyre v. Orner. in front of them at a rapid rate. Me- 166 Ind. 57. 76 N. E. 750, 4 L. R. A. Intyre v. Orner, 166 Ind. 57. 76 N. E. TN. S.') 1130. 3 Ann. Cas. 10S7. 648 The Law of Automobiles. Sec. 521. Proximate cause. Assuming the negligence of the operator of a motor vehicle, he is liable only for such injuries as proximately result from such negligence. Before one injured by the fright of a horse can recover from the driver of an automobile for such in- juries, he must show that the negligence of the auto driver was a proximate cause of the fright of the horse and that his injuries result from such fright.^^ When a horse is frightened by the negligent operation of a motor vehicle, the results of the fright such as a physical injury thereby inflicted on the driver or a damage to property from the horse running away, are natural results which may be expected from the negligence of the operator of the machine. For example, if an automo- bile chauffeur negligently frightens a horse, and as a result of such fright the horse kicks its driver, the personal injuries thus sustained by the driver may be deemed the proximate result of the negligence.^* But, it has been held, that, where the fright of the horse caused it to rupture a blood vessel in its heart resulting in death, in the absence of any physical 23. Henderson v. Northam, 176 Cal. the third party, was the legal cause of 493, 168 Pac. 1044 ; Lee v. City of Bur- the injury to the horse, and whether or lington, 113 Iowa, 356, 85 S. W. 618; not the defendant was negligent, were Herdman v. Zwart, 167 Iowa, 500, 149 issues for a jury. Nixon v. Williams N. W. 631; Coughlin v. Mark, 173 Ky. (Ga. App.), 103 S. E. 880. 728, 191 S. W. 503. See also Martin Instruction to jury. — ^In an action V. Garlock, 82 Kans. 266, 108 Pac. 92. based on the frightening of a horse Act of person in carriage. — Where by an automobile, in the absence of a the plaintiff was driving a horse at- request for a more definite instruction, tached to a buggy along a public high- a charge to the jury that a recovery way, and the horse became frightened could be had if the injury was caused by the operation of an approaching au- by the negligence of the defendant, tomobile of the defendant, and fell into without contributory negligence on the a ditch and was injured, the act of a part of the plaintiff, is not renderecT third person in the buggy with the materially erroneous by the omission to plaintiff in grabbing the lines and at- state that the negligence complained of tempting to control the frightened must have been the proximate cause horse, which pulled the horse into the and that the injury must have been one ditch, where he was injured, was not reasonably to have been anticipated as necessarily the legal cause of the in- a result thereof. Martin v. Garlock, 82 jury. Whether the operation of the de- Kans. 266, 108 Pac. 92. fondant's automobile in frightening the 24. Gifford v. Jennings, 190 Mass. horse, or the grabbing of the lines by 54, 76 N. E. 233. Frightening Horses. ^^ injury to it, there was no liability ior the horse.^^ Though a different rule may obtain in a few jurisdictions, it is generally held that the failure to have an automobile properly licensed and registered as required by statute is not the proximate cause of an injury occasioned by the machine. Thus, when such an automobile frightens a horse, ground of liability other than the mere violation of the statute must be sho^\^l.2•^ So, too, the fact that the automobilist violates the statute with reference to stopping after the accident and giving his name to one injured is not to be considered on the question of negli- gence in causing the accident.^^ To a reasonable extent the municipality charged with the maintenance of a highway is bound to anticipate that horses wnll become frightened on the highway and must use reasonable care to avoid injuries from such fright. Thus, when a horse becomes frightened at an automobile and shys and an injury results because the muni- cipality has failed properly to guard or fender the road, the injury may be said to be the proximate result of the negli- gence of the municipality and it will be liable for the in- juries.^^ 25. Lee v. City of Burlington, 113 possessefl of the most vivid imagina- lowa, 356, 85 N. W. 618, wherein it tion, one could hardly anticipate such was said: "If there had been any results as are said to have followed physical injury to the horse due to de- from the fright of the horse. It was fendant's negligence and resulting in such an unusual occurrence that the law death, there would undoubtedly be lia- will not consider it the proximate re- bility. But where death results from suit of the alleged negligence." fright alone the defendant is not liable 26. Black v. Moree, 135 Tenn. 73. 185 in damages, since such a result is so S. W. 683; Mumme v. Sutherland (Tex. unusual and extraordinary that one Civ. App.), 198 S. W. 395. And see ought not to be held liable therefor. section 126. As a general rule, no recovery may be 27. Henderson v. Northam. 176 Cal. had for injuries resulting from fright 493, 168 Pac. 1044. caused by the negligence of another, 28. Livingston & Co. v. Philley, 155 where no immediate personal injury is Ky. 224. 159 S. W. 665; Maynard v. received. This is the settled rule as to Westfield, 87 Vt. 532. 90 Atl. 504; human beings. . . . and we see no Davis v. Township of Usbome, 28 D. reason why the same rule should not be L. R. (Canada) 397, 36 O. L. R. 148, applied to animals (see also Mahoney 9 O. W N. 484. And see section 701. V. Dankwart, 108 Iowa, 321). Although 650 The Law of Automobiles. Sec. 522. Horse not on highway. Statutory provisions relative to the use of highways by motor vehicles are designed, as a general proposition, solely for the protection of other travelers along the way. Thus, the fact that the operator of a motorcycle violated a speed statute and thereby frightened a team working in a field ad- joining the highway, affords no cause of action for ensuing injuries.^ But, where, upon the approach of an automobile, the driver of a horse leads it off the highway on private lands in order to avoid its fright, it seems that the same rules apply to the conduct of the driver of the machine, as would apply if the horse had remained on the public highway.^** Sec. 523. Automobile left unattended by side of highway. Where a horse has become frightened at an automobile which has been left standing by the side of the highway, whether the operator thereof has exercised due care depends upon the surrounding circumstances, such as the appearance of the automobile, the time it has been left unattended, and the necessity for its remaining at such place. If a motor vehicle is left at the side of the road because of a breakdown, its operator is not guilty of negligence, unless he has unrea- sonably delayed its repair or removal.^^ But where a bright red automobile with brass trimmings was left standing by the side of the road for a long time, and the jury found that the use of the highway was not reasonable but rather was an un- authorized obstruction thereof, it was held that the finding would not be disturbed upon appeal.^^ Sec. 524. Noise — usual noise. An automobile, being a legitimate vehicle for travel upon the public highways, may be operated though noises result therefrom.^^ The right to operate an automobile upon the 29. Walker v. Faelber, 102 Kans. N. Car. 233, 62 S. E. 1088. 646, 171 Pac. 605. 32. M'clntyre v. Cbote. 19 Ont. L. R. 30. Harroun v. Benton, 197 111. App. (Canada) 9. See also Harris v. 138. Mobbs, L. R. 3 Exch. Div. (Eng.) 268. 31. Davis & Sons v. Thornburg. 149 33. Section 49. Frightening Horses. 65] public highways necessarily carries the right to make the usual noises incident to such operation.^* It may not, of it- self, be negligence to permit the engine of an automobile to run while the machine is temporarily standing still on the highway, and when it is not shown that the driver knew or should have known that the machine was frightening a horse, in time to have avoided the accident, the court may properly refuse to submit the auto driver's negligence in this respect.^ But the situation may be such that even the usual noises of operation should be abated in order to avoid frightening a horse, and their continuance may be a ground of negligence.'^ Thus, where a motorist, in compliance with a signal from the driver of a mule, ran his machine into a cut-out in the bank on the side of the road, and stopi>ed the forward motion of the machine, but the motor, however, was permitted to run, and, according to the testimony given in an action by the party driving the mule, gave forth considerable noise and caused the whole machine to vibrate. The plaintiff continued his ap- proach; the mule becoming more or less frightened as he neared the machine, and when he was almost opposite it, he became uncontrollable, and ran over to the extreme right of the road, where he struck a telephone pole, throwing the plain- tiff from the wagon. The question of the negligence of the defendant was permitted to go to the jury and tlie jury found negligence and awarded damages to the plaintiff; and it was held that it is a fact of which courts Avill take judicial notice that automobiles on highways, especially when they are in- frequent, have a tendency to frighten animals ; and the duty, therefore, devolves upon the drivers of such machines to exer- cise due care to prevent accidents. The amount of necessary care varies with the various circumstances, and acts Avhich in a given case might be negligence in another might be due care, and therefore it is almost absolutely necessary that what 34. CApe V. Lynch. 155 Towa. 627. 35. Pipe v. Lynch, 1.j5 L.wa. 627. 136 N. W. 714; Coca Cola Bottlinj? 1.^6 NT. W. 714. Works V. Brown. 139 Tenn. 640, 202 36. EllsAvorth v. Jarvi.«. 92 Kan.v S. W. 926; Brown V. Thome, 61 Wash. 895, 141 Pac. 1135: Carscy v. Haw- 18. Ill Pac. 1047. Sep also Day v. kins (Tex.). 163 S. W. ."iSfi. 165 S TTelly. 50 Mont. 306. 146 Pac. 930. W. 64. 652 The Law of Automobiles. action amounts to due care must be a question of fact.^^ And, while the noise of a machine may not, of itself, afford a basis for the recovery of damages for injuries, yet the running of the car at a high speed so that a traveler's horse is thereby frightened may be such negligence as will sustain a verdict.^^ Sec. 525. Noise — unusual noise. It cannot, as a matter of law, be said that the operation of an automobile in a manner to make a loud noise, creating dust and smoke, constitutes negligence.^^ But the jury may charge negligence against the operator of a motor vehicle approach- ing a horse, if the machine makes an unusual or unnecessary noise, and he may be responsible for injuries accruing from the fright of the horse.^*^ Thus, where a horse became restless upon the approach of an automobile and the operator of the machine, not only failed to stop, but tooted his horn as he came in proximity to the horse, it was held that he might properly be charged with negligence.'*^ And, it has been held that there was sufficient evidence of negligence in the driving of an automobile, whereby a team was frightened and ran away, to require the case to be submitted to the jury, where it appeared that the automobile was run at a speed of twenty or twenty-five miles an hour, on a street where there were many teams and where the city ordinances prohibited a speed in excess of ten miles an hour, that the driver passed within fifteen feet of the team and blew his whistle when directly opposite and did not notice the horses before they started to 37. Rochester v. Bull. 78 S. C. 249, Queb. S. C. (Canada) 190. 58 S. E. 766. See also Sapp v. Hunter, Evidence. — In an action for dam- 134 Mo. App. 685, 115 S. W. 463; ages caused by the alleged frightening Fletched v. Dixon, 107 Md. 420. 68 Atl. of a horse hj an automobile, it has 875. been held that a witness acquainted 38. Shinkle v. McClillough, 116 Ky. with the defendant's automobile may 960, 77 S. V^ 196. See also Mason v. testify that it was exceedingly noisy West, 61 N. Y. App. Div. 160, 70 N. Y. and was the loudest machine he had Suppl. 478. And see section 525. ever heard Fletcher v. Dixon. 113 Md. 39. Henderson v. Northam. 176 Cal. 101, 77 Atl. 326. 493. 168 Pac. 1044. 41. Messer v. Bruening, 32 N. Dak. 40. Coughlin v. Mark, 173 Ky. 728, 515, 156 N". W. 241. 191 S. W. 503; Lubier v. Mohaud, 38 Frightening Horses. 653 run.''^ So, too, where the driver of a motorcycle overtook the driver of a restive horse and sounded his whistle, making an unusual noise, it was held that he was liable for injuries sus- tained by the driver of the horse as a result of the horse be- coming frightened and overturning the buggy in the ditch.'*'^ But one may be justified in sounding his horn when passing a horse, when the signal is given in good faith for the purpose of a warning to another traveler some distance in advance.^* Where the plaintiff's witnesses testified that the automobile, when along side of a team of horses, started ''chugging," and frightened them into a runaway, resulting in the death of one of the horses, it was held that such evidence was sufficient evidence of negligence to take the case to the jury.''^ Simi- larly, negligence may be inferred from the circumstances that a team became frightened at the flapping of the curtains on an auto van.''^ But, where the operator of an automobile stopped it in the street near a blacksmith shop, and expected to start it shortly, it was held that he was not negligent in allowing explosions from his engine to continue, unless he saw horses were being frightened thereby, or in the exercise of ordinary care should have noticed the fright, and by the exercise of reasonable diligence could have stopped the noise in time to have avoided the runaway.''^ In other words, the operator of the machine need not necessarily stop the motor: whether he is negligent in continuing the running of the engine will de- pend upon the circumstances involved in each particular case."*^ It might not be negligence to leave the engine running while the operator leaves the machine for a short time, but gross negligence may be charged against one who leaves the machine so running for a considerable period.'*^ ^Vhere the 42. Grant v. Armstrong. 55 Wash. 47. House v. Cramer, 134 Iowa, 374, 365. 104 Pac. 632. 112 N. W. 3. 10 L. R. A. (N. S.) 655. 43. Hutson v. Flatt, 194 111. App 29. 13 Ann. Cas. 461. 44. Conrad v. Shuford (N. C), 94 S. 48. Affcld v. Murphy. 137 Minn. 331, E- 424. 163 N. W. 530; Sapp v. Huntrr. 134 45. Kirlin v. Chittenden, 176 III. Mo. App. 685, 115 S. W. 463. App. 550. 49. Coco Cola Pottlin? Works v. 46 La Brash v. Wall. 134 Minn. Brown. 139 Tenn. 640, 202 S. W. 926. 130. 1,58 N. W. 723. g54 The Law of Automobiles. chauffeur commenced to crank his machine for the purpose of starting in close proximity to harnessed horses standing quietly in charge of a driver, without giving any previous warning, and continued to do so after the horses exhibit symp- toms of fright, and thereby caused them to run away, it was held that he was held guilty of actionable negligence, for it was his duty when he began to "crank up" to keep a watchful eye on the horses standing so close by and that when he saw that they manifested symptoms of fright, to stop at once, until they could be removed.^*^ Statutes which require the driver of the machine to stop when signaled by the driver of a horse, do not require that the engine of the machine be stopped ; whether it should be stopped mil depend on the cir- cumstances of each particular case.^^ But a statute which under some circumstances requires the stopping of the engine on "meeting" a team ^ driven by a woman does not apply when the driver of the machine turns into a by-road to avoid the "meeting" and there stops the machine, but not the motor.^^ Sec, 526. Noise — failure to sound horn. It is, perhaps an anomoly in one case to charge the driver of a motor vehicle with negligence in sounding his horn when approaching a horse-driven vehicle, and in another case to impute negligence to him if he fails to give a warning of his approach and his sudden appearance frightens the horse. 50. Tudor v. Bowen, 152 N. C. 441, favorable opportunity he turned aside 67 S. E. 1015, 30 L. E. A. (N. S.) 804, and avoided a meeting. There was 21 Ann. Caa. 646. surely no fault unless the failure to 51. Mahoney v. Maxfield. 102 Minn. stop the motor was a fault. The auto 377, 113 N. W. 904. 14 L. R. A. (N. was then a considerable distance from S. ) 251, 12 Ann. Cas. 289. the team, and it was not reasonably 52. Affeld v. Murphy, 137 Minn. 331, to be anticipated that any harm would 163 N. W. 530, wherein the court said: come. We hold that the statute was "A majority of the court are of the without application* in the situation opinion that the statute mentioned does disclosed, that a failure to stop the not apply, and that there is no basis motor did not involve liability because for a charge of negligence apart from of the statute, and that independently it. The driver did not meet the team. of the statute there was no basis for He turned into the side road to avoid a finding of negligence." a meeting. He was cautious. At a Frightening Horses. ^^^ Whether he should sound a signal, and when it should be done, depends upon what course of action is reasonable care under the circumstances. Where one in control of an auto- mobile on a public street came up behind a wagon drawn by a horse not given to shying, kicking or running and not afraid of automobiles, and without sounding his horn came within ten feet of the nearer hind wheel of the wagon and tried to pass where there was not sufficient room, it was held that he could be found negligent in not sounding his horn as required by the statute.^^ Where an operator of an automobile saw, or by ordinary care could have seen, a horse and vehicle on a highway ahead of him, and he was required by statute to give warning of his approach, and to use every reasonable pre- caution to insure the safety of the occupants of the^ vehicle, and there was evidence that he did not give any warning, that he drove the machine at a high rate of speed, and that he did nothing toward respecting the safety of the persons in the vehicle, except to swerve the machine to the right to pass it, it was held that such evidence was prima facie proof of negli- gence, authorizing a recovery for injuries received by the per- sons in the vehicle in consequence thereof." Sec. 527. Emission of smoke or vapor. Actionable negligence may be based on the fact that, when an automobile is in proximity to a horse, a cloud of steam or smoke suddenly ensues from the machine, the horse thereby becomes frightened and causing injuries either to persons or to property .^^ To approach close to a horse-drawn vehicle and then suddenly to project a cloud of smoke or vapor in the face of the horse, could not w^ell be expected to produce any result other than the fright of the horse.^'' Thus, where, in 53. GifiFord v. Jennings, 190 Mass. as in other respects, is novel and there- 54, 76 N. E. 233, wherein it was said: fore may be dangerous, and that the "The jury might find that a horn defendant should have known this." should be sounded on overtaking a 54. National Casket Co. v. Powar. horse not only to warn the driver of 137 Ky. 156, 125 9. W. 279. the horse to keep to his sido of the 55. Graham v. Sly, 177 Mo. App. road, but also to give timely warning 348. 164 S. W. 136. of the approach of this machine which, 56. Graham v. Sly. 177 Mo. App. in the kind of noise made by it, as well 348, 164 S. W. 136. 656 The Law of Automobiles. an action against the driver of an automobile to recover for personal injuries, it appeared that the plaintiff, driving in a buggy with his wife and small child, approached, at a point in a narrow road, an automobile driven by defendant; that plaintiff threw the lines to his wife, descended to the ground, and without looking at, or speaking to the defendant, went to the head of his horse, which had become restless and that the defendant started to proceed, when immediately a volume of vapor as large as a hat was spurted from a tube in the rear axle, under and against the horse, accompanied by a hissing sound and strong odor of gasoline and that the horse became unmanageable, overturning the buggy and injuring the wife and it further appeared that the horse was eighteen years old and prior to the accident trustworthy, it was decided that the case was for the jury." Sec. 528. Speed. The requirement that an autoist shall use reasonable care in the operation of his machine is frequently violated by run- ning at an excessive speed,^^ and especially is this so when the limit prescribed by statute or municipal ordinance is vio- lated. If the fright of a horse and consequent injuries are the proximate result of the excessive speed of a motor vehicle, the driver thereof may be liable.^** ' Independently of statute, 57. Reed v. Snyder, 38 Pa. Super. remaining stationary for but a mo- Ct. 421, wherein it was said: "The ment." defendants must necessarily have seen 58. Section 305. the nervous horse, the man at its head, 59. Georgia. — Strickland v. What- the mother and child in the buggy, ley, 142. Ga. 802, 83 S. E. 856. and must certainly have known that Illinois. — Hutson v. Flatt, 194 111. when the machine over which they had App. 29. full control would be started by their Indiana. — Carter v. Caldwe'l. 183 direction, the vapor .would be ejected Ind, 434, 109 K E. 355; Brirkman v. in the direction of the horse, that a Pacholke, 41 Ind. App. 662, '84 N. E. noise would be produced, with an ac- 762; East v. Amburn, 47 Ind. App. 530, companying odor of gasoline. A jury 94 N. E. 895. would be warranted in concluding that Iowa. — Delfs v. Dunshee, 143 Iowa, they had full control of their machine, 381, 122 N. W. 236; Lenxke v. Ady, 159 and should have known the hazard fol- N. W. 1011. lowing their progress, which could have Kentucky. — East Tenn. Telep. Co. t been relieved of all possible danger by Cook. 155 Ky. 649, 160 S. W. 166. Frightening Horses. 657 no person should operate a motor vehicle on the public high- ways at a rate of speed greater than is reasonable and proper in view of the time and place, and having regard to the trathc and condition and use of the highway .'^'^ Sec. 529. Operating auto in proximity to horse. Negligence may sometimes be charged against the driver of an automobile on account of the proximity with which he drives his machine to a horse.^^ Thus, if in passmg a horse from the rear, the automobile is guided back into the center of the road sooner than due caution would require and thereby it comes close to the horse's head, the jury may be justified m imputing negligence to the chauffeur.^^ And, when meeting a horse, if the driver of an automobile delays his turn to the right, so that apparently the machine is coming head-on to the horse, negligence may be found.^^ Neglect of due care is especially clear in such a case, when the automobile is violat- ing the law of the road in proceeding along the wrong side thereof,^'' or is appropriating to itself more than its share of the road.^^ The attempt of the automobilist to pass on the left Instruction to jury.-The trial court than six miles per hour. Strickland v. may properly instruct the jury as to Whatley, 142 Ga^802. 83 S. E. 856 the consideration to be given to the 60. Hams v. ^icks (Ark ) 221 S. fact of speed, if found to be less than W. 472; Wade v. Brebts, 161 Ky. 607 the statutory rate, where the instrue- 171 S. W. 188. And see section 305. tion further outlines the duty of the 61. Zelezny v. Birk Bros. Brew. Co.. automobilist to use proper care, under 211 111. App. 282; Zellner v^McTague, the circumstances, in passing plaintiff's 170 Iowa, 534. 153 N. Y^/^.'.f f .Z' buggy. Brirkman v. Pacbolke. 41 Ind. Compton, 130 Mo. App. 675. 108 S. ^\. App 662 84 N. E. 762. Where the 1122. plaintiff 'testified that at the pla^e 62. Delfs v. Dunshee, 143 Iowa. 381. whore the defendant's automobile 122 N. W. 236. passed his buggy, frightened his mule 63. East v. Amburn. 47 Ind. App. and caused it to jump from the road 530, 94 N. E. 895; ^taley v. Forr st and to throw the occupants from the 157 Iowa, 188; 138 N. W. 44 ; Holbs buggv, there was a fill three feet high. v. Preston, 115 Me^ 553 98 Atr 75. it was not error to charge the portion 64. Hannan v. St. Clair, 44 Co.o. of the statute which declared that 134. 96 Pac. 822; Bureham v. Rob.n- "upon approaching a . . • high son. 113 Miss. 527. 74 So. 417. embankment." the person operating an 65. Hall v. Compton, 130 Mo. App. automobile shall have it under control 075, 108 S. W. 1122. and operate it at a speed not greater 42 658 The Law of Automobiles. side contrary to the law of the road, is not conclusively negli- gence, but places a burden on the driver of the machine to show why he diverted from the rule of the road.^*^ If the narrowness of a road, the frightened appearance of a horse, and the size of the space for passage, are apparent to the driver of an automobile and he takes his chance of passing safely and miscalculates the space, he will not be in a position to complain of a verdict against him, where he can pass safely by waiting a few minutes until reaching a wider space in the road.^^ Evidence tending to show that upon a traveled track twenty- two feet wide, with a ditch on each side, the plaintiff had driven his single horse as far as he could to the right and had stopped as the defendant approached with his automobile; that defendant could have kept wholly to the right of the center of the road, but instead of doing so he turned his machine to the left and passed so close to plaintiff's buggy that there was but from one to two feet between the wheel track of the buggy and that of the car ; that water and slush were splashed toward the horse as the car passed; and that the horse, though not ordinarily afraid of automobiles, sud- denly lurched and overturned the buggy, has held sufficient to sustain a verdict to the effect that the defendant was negli- gent and that this negligence proximately caused the injury.^^ Sec. 530. Stopping — independently of statute. If the driver of an automobile knows, or, by the exercise of reasonable care should know, that further progress with his machine will render a horse unmanageable, it is his duty to stop the machine and take such steps as may seem necessary for the safety of the horse-drawn vehicle.^^ The presumption 66. Herdman v. Zwart, 167 Iowa. Ala. 333, 70 So. 271. 500; 149 N. W. 631. And see sections Illinois. — Stout v. Taylor, 168 111. 270-274. App. 410. 67. Gurney v. Piel, 105 Me. 501, 74 Indiana. — Mclntyre v. Orner. 166 Atl. 1131. Ind. 57, 76 N. E. 750, 4 L. R. A. (N. 68. Pfeiffer v. Radke, 142 Wis. 512. S ) 1130, 8 Ann. Cas. 1087; Brink- 125 N. W. 934. man v. Pacholke, 41 Ind. App. 662, 84 69. Alabama.— Roa,ch v. Wright, 195 N". E. 762. Frightening Horses. 659 is that the machine is always under the control of the operator, and it is his duty to stop it, if he knows or in the exercise of reasonable prudence should know that it is exciting a horse so that there is danger in continuing the forward motion of the car.'^" The duty of stopping is now, as a general proposi- tion, expressly required by statute.''^ But, independently of any statute on the subject, the driver of a motor vehicle should stop when he sees that he is frightening a horse by proceeding.'^^ And this is true after, as well as before, statu- tory enactments have provided for stopping on signals or under other circumstances.''^ As a general rule it may be stated that if the operator of an automobile knows, or by the exercise of ordinary care may know, that the movement or noise of his machine will render an animal unmanageable, he must use all the care and caution which a prudent and careful driver should exercise under the same circumstances. He 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- cumstances and will not negligently or recklessly expose him- self to danger, but rather make an attempt to avoid it. But when an operator has had time to realize, or by the exercise of a proper lookout should have realized, that a person whom he meets is in a perilous position, or in a position of dis- advantage, and therefore seemingly unable to avoid the coming automobile, he must exercise increased exertion to avoid a loiva. — Raber v. Hinds, 133 Iowa, 71. See following sections. 312, 110 N. W. 597; Walkup v. Beebe, 72. Christy v. Elliott. 216 111. 31, 1 139 Iowa. 395, 116 N. W. 321. L. R. A. (N. S.) 215, 74 N. E. 1035, Kentucky. — Shinkle v. MeCullough, 108 Am. St. Rep. 196, 3 Ann. Cas. 487; 116 Ky. 960. 77 S. W. 196. Strand v. Griniiell Automobile Garage Mississippi. — Burcham v. Robin- Co., 136 Iowa. 68, 113 N. W. 488: son, 113 Miss. 527, 74 So. 417. Walkup v. Beebe, 139 Iowa. 395, 116 Missouri. — Fields v. Sevier, 184 Mo. N. W. 321; Nelson v. Holland. 127 App. 685, 171 S. W. 610. Minn. 188, 149 N. W. 194: Pease v Washington. — Brown v. Thorne, 61 Cochran (S. Dak.), 173 N. W. 158. 5 Wash. 18, 111 Pac. 1047. A. L. R. 936. Canada. — Campbell v. Pugsley, 7 D. 73. Strand v. Grinnell Automobile L. R. 177. Garage Co., 136 Iowa. 68, 113 N. W. 70. Brown v. Thorne. 61 Wash. 18, 488; Nelson v. Holland. 127 Minn. 188, ni Pae. 1047. 149 N. W. 194. 660 The Law of Automobiles. collision, or what is equivalent, the fright of a horse induced by an automobile.''* Where the plaintiff testified that, while driving .an ordi- narily gentle horse on a city street, the horse became fright- ened at the defendant's automobile when it was within one hundred and thirty-nine feet of her, and as the automobile approached the horse became more frightened, and, turning quickly, threw plaintiff to the street close to the sidewalk; that the automobile was then eighty feet away, coming toward her, and ran over her without any attempt being made to stop it, and the defendant testified that he was driving at the rate of five or six miles an hour, and first discovered the horse's fright when he was twenty feet away; that the horse turned quickly to the side of the street on which the defendant was driving when the defendant turned the machine in on the pavement to avoid a collision ; that he was obliged to leave the pavement on account of a house built close thereto and when he returned to the street there was room between the sidewalk and planitiff's buggy for him to pass, but as he was doing so, the plaintiff jumped out and fell immediately in front of the machine, so close that he could not stop, and to avoid running the wheels over her he turned the machine and the body of the car passed over her, it was held that under either version of the affair the jury were authorized to find defend- ant negligent in failing to stop when he discovered, or should have discovered by ordinary care, the fright of the plaintiff's horse.^^ Ssc. 531. Stopping" — discretion as to stopping. The general rule as to stopping stated in the preceding section is not an inflexible one. In some cases the proper 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, 74. Sparkler v. Markley, HP Pa. Yoder, -SO Kan. 25, 101 Pae. 468. Sun-r. Ct. 351. 357, pel' Orlady, J. 75. Webb v. Moore, 136 Ky. 708, 125 Must use reasonable piecaut'on com- S. W. 152. mensurate with danger. McDonald v. Frightening Horses. 661 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 presents different conditions and situations. ^Vhat 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.''*' So in a case in South Carolina the court declared that it is not prepared to adopt as a correct statement of the common law that the driver of an automobile must stop if it can be discovered by ordinary foresight that an animal has become frightened, for there might be circumstances when the most prudent thing to do, upon discovery that a horse is frightened, would be to get by with the automobile as quickly as possible so as to remove the cause of fright. The true rule was said to be that the driver must exercise the care which ordinary prudence requires under the circumstances.'^^ And, in another case, it was said that it is reasonable to presume that in some cases the fright of a horse will be increased by stopping an automobile just opposite to him, rather than by passing on by and if the driver of a machine passes on he is not responsible for the damages inflicted by the horse, where the emergency in which he was placed was occasioned by an imprudent act of the plaintiff.''^ So, too, the owner of an automobile who was running his machine in a careful manner, at a slow rate of speed, along a city street crowded with travelers and vehicles, and keeping a lookout to avoid accidents, was held not liable for an injury inflicted by a horse taking fright thereat, when he was not aware of any danger from said fright until his machine had reached a point opposite to or had passed the horse's head, and then deemed it less dangerous to pass on than to stop, and when the horse was in charge of three able-bodied men, and there 76. Fleming v. Gates, 123 Ark. 28, 77. Gue v. Wilson. 87 S. C. 144, 69 182 S. W. 509; Harris v. Hicks (Ark.), S. E. 99. 221 S. W. 472; Webb v. Moore, 136 Ky. 78 Baiigher v. Harman, 110 Va. 316, 708, 125 S. W. 152. And see section 66 S. E. 86. 277. 662 The Law of Automobiles. was nothing in its behavior to lead him to suppose that it would become unmanageable.'^ But statutory enactments have abrogated in most jurisdic- tions any discretion in the matter of stopping. Under stat- utes requiring the driver of an automobile to stop his car when he sees that a horse is frightened or when he receives a signal from^the driver, the chauffeur has no discretion as to the means he shall take to avoid frightening a horse. It is his duty to stop his machine.^ Sec. 532. Stopping — overtaking and passing frightened horse. When an automobile is approaching a horse-driven vehicle from the rear, the chauffeur is not necessarily guilty of negli- gence in attempting to pass. It is his duty to exercise reason- able care to avoid injury to the travelers in the wagon, and what is reasonable care will depend on the circumstances. A statute requiring an automobilist to stop when passing a frightened horse, is not generally applicable in the case of a motor vehicle overtaking and attempting to pass.^^ Where the evidence tended to show that the machine approached the plaintiff's wagon from the rear, and was within a few feet from the horse and turned in front of it a short distance ahead, it was held that the negligence of the driver of the auto was for the jury.^^ And if there is an opportunity to turn the horse into a side road a short distance ahead, the driver of the machine may be charged with negligence in attempting to pass the animal and in not waiting until its driver had an opportunity to turn out.^ Sec. 533. Stopping — stopping engine. Though it may be the duty of the operator of a motor vehicle to stop the machine on the approach of an excited horse, it is not always necessary for him to stop the running 79. Baugher v. Harman. 110 Va. 316, 81. Section 534. 66 S. E. 86. 82 Delfs v. Dunshee, 143 Iowa. 381, 80. Stout V. Taylor, 168 111. App. 122 N. W. 236. 410; Searcy v. Golden, 172 Ky. 42, 188 83. Brinkman v. Pacholke, 41 Ind. S. W. 1098. App. 662, 84 N. E. 762. Frightening Horses. 663 of the engine. Due caution may require that the engine be stopped in some cases, but under other circumstances the con- tinuance of the running of the engine may be consistent with an exercise of reasonable caution. This proposition may be better considered under the duty of the operator to avoid noises which ^^dll frighten timid horses, and is therefore dis- cussed under another section.^^ Sec. 534. Stopping — statutory duty to stop on fright of horse. In many jurisdictions statutes have been enacted which impose a duty on the drivers of automobiles to stop when it is apparent that a horse is being frightened by the operation of the machine.«5 Under such statutes the driver of the auto- mobile has no discretion as to stopping; it is his duty to stop though he might in good faith believe that the danger could be more easily averted by rapidly continuing his progress.^^' Indeed, the violation of the statute may be deemed negligence 111. Horner. 88 172 84. Section 525. 85. Arkansas. — Russ v. Strickland, 130 Ark. 406, 197 S. W. 709. Delatca/re.—W aWs, v. Windsor (Del. Super.), 92 Atl. 989. Illinois. — Smith v. Heish, 161 App. 83. Xansas.— Arrington v, Kan. 817, 129 Pac. 1150. Kentwky.— Searcy v. Golden, Ky. 42, 188 S. W. 1098. New York. — Union Transfer & Stor- age Co. V. Westcott Express Co., 79 Misc. 408, 140 N. Y. Suppl. 98. North Carolina. — Curry v. Fleer. 157 N. C. 16, 72 S. E. 626. Utah. — Beggs v. Clayton. 40 l^tah. 389, 121 Pac. 7. Canada.— ^JAihier v. Nichaud, 38 Que. S. C. 190; Stewart v. Steele, 6 D. L. R. 1. 86. Fleming v. Gates. 132 Ark. 28. 182 S. W. 509: Russ V. Strickland (Ark.), 197 S. W. 709; Searcy v. Golden, 172 Ky. 42. 188 S. W. 1098. "The driver of a car cannot determine for himself whether it is as safe or safer to proceed tlian it is to stop. The law lias decreed that he must stop his ear, and he is under the duty to do so, altliough, in his opinion, some other course may be safer. His failure to stop the car under these circum- stance is tlierefore nt^ligence, and renders him liable for any injury of which it is the proximate cause, pro- vided the party injured is not himself guilty of negligence contributing to his injurj\" Euss v. Strickland (Ark.). 197 S. W. 709. Question for jury. — ^Where the stat- ute requires the driver of an automo- bile to stop when a horsp is frightened at the approach of the machine, and it is conceded that the driver did not stop, the court cannot submit to the jury the question whether it was neces- sary for him to stop. Searcy v. Golden. 172 Kv. 42 188 S. W. 1098. 664 The Law of Automobiles. per se^ A statutory requirement that the operator of an automobile shall stop when it appears that his machine is frightening a horse, may be construed to mean that he shall stop whenever, in the exercise of due care, it should appear to him that his machine was having that effect.«« In other words, a chauffeur cannot negligently fail to observe that a horse is frightened or about to become frightened. The statute may require the automobilist to stop when there is indication of fright,^^ and may apply to a horse which has actually become frightened as w^ell as to one which is about to be frightened.®"^ It is held, however, that a statute requiring the driver of a motor vehicle to stop until a horse about to be frightened by the machine has passed, does not apply when the machine approaches the horse from the rear, but in such case the duty of the chauffeur is governed by the general rule to exercise reasonable care to avoid injury to other travelers on the high- way.®^ A construction of the statute which would require the automobile to stop until the horse-drawn vehicle had passed, would impede the use of the road almost to the extent of denying to the automobilist the right to travel the road. 87. Beggs V. Clayton, 40 Utah, 389, -llie purpose of that statute was to 121 Pac 7. require drivers of automobiles to come 88. Ru33 V. Strickland (Ark.), 197 to a full stop when they observe that S. W. 709 ; Ward v. Meredith, 220 111. an approaching horse, ridden or driven 66 77 N. E. 118; Stout v. Taylor. 168 by another traveler, is about to become 111. App. 410. ifrightened. The statute imposes an "Just when a horse is about to absolute duty on the driver of the au- become frightened and just when he tomobile to stop, and liability for dam- is actually frightened is very difficult ages arises from a violation of that to determine, and we think the plain statute. We think, however, that the meaning of the statute is to require statute was not intended to impose the persons using such vehicles as automo- absolute duty upon the driver of an biles, calculated to frighten horses, to automobile to stop his machine because stop the same whenever a horse shows a team in front, going in the same di- indication of fright upon their ap- rection, appears to be frightened, but proach." Ward v. Meredith, 220 111. under those circumstances it is left to 66 77 N. E. 118. a t"al jury to say whether under all 89. Ward v. Meredith, 220 111. 66, 77 the circumstances of the case the driver N. E. 118. of the automobile has been guilty of 90. Ward v. Meredith, 122 111. App. negligence. . . . Doubtless the leg- 159, affirmed 220 111. 66, 77 N. E. 118. islature took into consideration the 91. Fleming v. Gates, 122 Ark 28, hardship of requiring the driver of an 182 S. W. 509, wherein it was said: automobile to stop his car merely be- Frightening Horses. 665 Sec. 535. Stopping- — stopping in front of horse after passing. When an automobile has overtaken and passed a horse- dra^vii vehicle, thereby exciting the animal, the stopping of the motor vehicle in front of the horse may add to the fright of the horse so that injuries will result. The operator of the machine may be charged with negligence under such circum- stances.®^ Where the evidence justified a finding, that after the de- fendant had passed the 'plaintiff, who had gained a partial control of his frightened horse, and upon hearing its approach, stopped his car a short distance ahead of the horse, thus adding to its fright, it was decided that the court was justified in calling the attention of the jury to this evidence and direct- ing them to determine whether defendant was negligent in thus stopping the car, without specially defining in that con- nection the care required of defendant, the court having in other instructions correctly defined negligence.®^ Sec. 536. Statute requiring stopping on signal — in general. In many States, statutes have been enacted to the effect that the operator of a motor vehicle shall stop his machine upon the signal of the driver of an animal-drawn vehicle.®* The constitutionality of such a law is hardly open to ques- cause a team in front of him appears makers evidently intended to omit any to be frightened. The automobile, of definite requirement applicable to a course, travels faster than vehicles state of facts such as is shown in this drawn by horses, and if this statute case, so that the question of negligence applied, it would prevent the driver of or due care could rest upon settled an automobile from passing the slower principles on that subject. This case vehicle. On the other hand, it is per- should have been submitted to the jury fectly reasonable to require the driver on the question whctlier appellant ex- of a machine, when meeting another ercised ordinary care to avoid frighten traveler driving a team, to stop and ing the team, without giving to the let the team pass. The legislature jury the statute which imposed the ab- doubtless had this distinction in mind solute duty of stopping until the team in failing to put into the statute a got out of the way." positive requirement tliat aji automo- 92. Delfs v. Dunshee, 143 Iowa, 381. bile overtaking another kind of vehicle 122 N. W. 236. should stop, for such a requirement 93. Delfs v. Dunshee, 143 Iowa. 381. would impede travel almost to the ex- 122 N. W. 230. tent of denying the driver of an auto- 94. Arkansas. — Battle v. Guthroy, mobile the use of the road. The law- 137 Ark. 228. 208 S. W. 289. QQQ The Law of Automobiles. tion.^^ The fact that the driver does not see the signal will not necessarily excuse him.^^^ Such a statute does not gen- erally require that the running of the motor be stopped, but the obligation of the automobilist in respect to the noise so made is governed by the particular circumstances and his gen- eral obligation to use reasonalile care in the operation of his machine.^6 Negligence in failing to stop an automobile, upon signal by the driver of a horse, that it has taken fright, is held to be sufficient to sustain a verdict for the plaintiff, even though other grounds of negligence are not sustained.^^ And it has been said that, if the jury were satisfied that a signal to stop given by a person driving horses was seen by a person driving an automobile, and that, without slacking speed, the latter unnecessarily kept on, passing within two feet of the horses and causing them to become unmanageable and run away, when the width of the roadway was sufficiently ample to have enabled him to go by at a distance of twenty feet, which might have prevented the accident, they would have been warranted in finding that the automobile was carelessly operated in violation of a statute, requiring the driver of an automobile to exercise every reasonable precaution when pass- ing teams to avoid frightening the horses.^^ Thus, in a typical case, the plaintiff, who was about seventy years of age, testi- fied that while driving on a dark evening, he met the defend- ant coming from the opposite direction on a public road in an automobile; that the defendant had no lights on his auto- /otco,.— Horak v. Dougherty, 114 N. 25 N. D. 599, 142 N. W. 158, 48 L. R. W. 883; Walkup v. Beebe, 139 Iowa, A. (N. S.) 945. 395, 116 N. W. 321. Virginia. — Cohen v. Meader, 119 Va. Kansas.— Sterner v. Issitt, 89 Kan. 429, 89 S. E. 876. 357. 131 Pae. 551. 95. Hays v. Hogan, 273 Mb. 1, 200 Mtw/wesota.— Schaar v. Comtforth, 128 S. W. 286, L. R. A. 1918 C. 715, Ann. Minn. 460, 151 N. W. 275. Oas. 1918 E. 1127. Missouri.— State v. Wilson, 188 Mo. 95a. King v. Hyndman, 7 Canada C. App. 342, 174 S. W. 163; Hays V. C. 469. Hogan. 273 Mo. 1, 200 S. W. 285, L. 96. Mahoney v. Maxfield, 102 Minn. R. A. 1918 C. 715, Ann. Gas. 1918 E. 377, 113 N. W. 904. 14 L. R. A. (N. 1127. S.) 251, 12 Ann. Cas. 289. New York.— Union Transfer & Stor- 97. Brown v. Thorne, 61 Wa*h. 18, age Co. V. Westcott Express Cb., 79 111 Pac. 1047. Misc. 408, 140 N. Y. Suppl. 98. 98. Trombley v. Stevens-Dnryea Co., North Dakota.— Messer v. Bruening, 206 Mass. 516, 92 N. W. 764. Frightening Horses. 667 mobile, and that he, the plaintiff, was unable to notice its approach until it was almost on him : that he was driving a perfectly tractable and gentle horse on the proper side of the road; and when the automobile was about twenty-five steps away he recognized it, and rising in his buggy, held up his hand as a signal to the driver of the car to stop, and called out: ''Hold on, wait, stranger, until I get out and hold my horse." The machine was either slowed down or stopped in obedience to this signal, and then the plaintiff attempted to get out of his buggy, in order to go to the head of his horse: and when in this situation the machine was suddenly staited and approached the buggy with considerable noise, which caused the horse to shy and run against the fence, so that the plaintiff was thrown out over the wheel and quite seriously injured. This testimony was contradicted by the defendant and other persons who were in the automobile. Under the facts the case was held to be one for the jury, and it was decided that a verdict and judgment for plaintiff should be sustained.^* Sec. 537. Statute requiring stopping on signal — discretion as to stopping. In most jurisdictions, the statute as to stopping on signal does not give the operator of the machine any discretion as to whether or not he should stop. He cannot speculate as to whether the horse is gentle or wild, or whether it will become frightened or not, but he must, if signaled, stop his machine.^ The statute is peremptory and it is his duty to stop though he might be of the opinion that there would be less risk oi injury in proceeding. Under such a statute, the violation of the statute is considered negligence, and the chauffeur is generally liable for all damages that proximately result from his wrongful act. But, under a statute requiring that the operator of an automobile on a signal of distress by a person driving horses shall cause the automobile to stop all motor power and remain stationary, unless a movement forward 99. Spanglor v. Markley. 39 Pa. 1. Cohen v. Meader. 119 Va. 429. 89 Super. Ct. 351.' ^- ^- 876. 668 The Law of Automobiles. shall be deemed necessary to avoid accident or injury, it is for the operator to determine whether a forward movement is necessary, and his determination is controlling unless he acts unreasonably or in bad faith.^ Sec. 538. Statute requiring stopping on signal — effect of failure to give signal. The failure of the driver of a horse to give a signal to an approaching automobile operator, does not necessarily permit the latter to proceed. The driver of the machine is bound to exercise reasonable care to avoid injury to other travelers, and if due care requires the stopping of the automobile, negli- gence may be charged against him.^ In other words, the enactment of the statute does not abrogate the duty of stopping which existed theretofore. And the failure of the driver of the horse to give the signal prescribed by statute, does not necessarily impute contributory negligence to him.* Sec. 539. Statute requiring stopping on signal — signal by passenger. Whether a signal given by a passenger in a horse-drawn vehicle is effective to call the statute into operation so as to place an imperative duty on the operator of a motor vehicle to stop, will, of course, depend on the construction of the particular statute. In at least one jurisdiction, the view has been taken that the statutory signal may be given by a pas- senger.^ The contrary view is also sustained by the courts of 2. McCummins v. State, 132 Wis. refusing to bring his car to a stop, 236, 112 N. W. 25. upon being signaled to do so, in com- 3. Walkup V. Beebe, 139 Iowa, 395, plianee with the statutes of that State 116 N. W. 321; Nelson v. Holland, 127 which provide a penalty for the driver Minn. 188, 149 N. W. 194. And see of an automobile who fails to stop upon section 530. request by signal from any person 4. Strand v. Automobile Garage Co., "riding, leading, or driving a horse." 136 Iowa, 68. 113 N. W. 488. As to In this case the signal, which was contributory negligence, see sections ignored by the motorist, came from a 542-545. carriage containing two persons and 5. Motorist must stop on signal was given by the occupant who was not from any occupant .of carriage unde* driving, the driver being engrossed in Indiana statute. — A prosecution was his efforts to restrain, the frightened lodged against an Indiana motorist for horse. The motorist sought to escape Frightening Horses. 669 at least one jurisdiction.^ But, though there does not exist a statutory duty to stop on the signal of a mere occupant of the carriage, nevertheless the duty of exercising reasonable care which is placed on the operator of a motor vehicle under all circumstances, may be violated if he disregards a signal ot distress from such a person. That is to say, the jury under some circumstances may be authorized to find the automobilist guilty of negligence if he fails to stop on receiving a signal from a passenger in the carriage.^ Sec. 540. Negligence after stop. Though an automobilist has brought his machine to a stop to avoid frightening a horse, he has not necessarily fulfilled his entire duty to travelers in the carriage. He must continue to exercise reasonable care to avoid injury to them. Thus, if he starts the engine while the horse is being driven past his machine, and the horse thereby becomes frightened and causes injury, the jury may find the operator of the machine guilty of negligence.8 And, even when the driver of the automobile liability on the ground that the signal would be unreasonable, if not absurd, did not come from the person "driv- and that the signal to stop, in order to in.." the horse, as required by the stat- be legally effective need not be given ute but was given by some one in the by the person holding the lines but carriage who was not actually engaged may be given by any occupant of the in driving. In other words, he asked vehicle. State v. Goodwin. 169 Ind. the court to construe the statute to 265, 82 N. E. 459. mean that it was not his duty to stop 6. Messer v. Bruening 25 N Dak. unless signaled to do so by the person 599, 142 N. W. 158, 48 L. R. A. (N. handling the reins. As is usual in a S.) 945; Messer v. Bruening, 32 N. case where a precise definition of a Dak. 515, 156 N. W. 241. word is required, recourse was had to 7. Messer v. Bruening, 32 N. Dak. the dictionaries, where driving is found 515, 156 N. W. 241. to mean "to ride in a vehicle dra^vn by 8. Fischer v. McGrath, 112 Mmn. horses, or other animals, or to direct 456, 128 N. W. 579. -If, as the jury or control the animals that draw it." has found, the defendant w^s aware While criminal statutes, as a rule, are that the machine in his possession and to be strictly construed, courts refuse control had so far excited tho plain- on one hand,"to hold persons not clearly tiff's horse as to render him dangerous brought within the scope of the statute and unmanageable, and if having stop- and, on the other hand, to discharge ped at the urgent solicitation of tbe oc- those not clearly within its scope. It cupants of the surrey m order o af- was held that, to attach to the statute ford them an opportumty to al.ght, he. the construction claimed by the defense before they could do so, started the 670 The Law of Automobiles. on meeting a horse gets out of his machine to assist in getting the horse past, if he is guilty of negligence in handling the horse, he may be liable for injuries sustained by the occupant of the wagon.^ In one case it appeared that the plaintiff and his sister were riding in an open wagon drawn by one horse, and, discovering the canopy top of an approaching automobile in which the defendant and a companion were traveling, the sister gave the statutory signal b}^ raising the hand for the automobile to stop. The defendant disregarded the signal to stop and ran the automobile out of the highway two or three rods into a dooryard. The plaintiff was thereby induced to believe that he could drive along in safety, but the automobile unexpectedly turned and reappeared in the highway directly in front of the plaintiff, frightening his horse, and causing several personal injuries to the plaintiff. The verdict was for the plaintiff, who was awarded $225 damages. If the defend- ant had regarded the plaintiff's signal and promptly stopped his machine, the plaintiff would have had an opportunity to drive into the dooryard himself, as he intended to do. If the defendant had kept his car stationary for a few seconds in the dooryard, the plaintiff could have driven along the highway safely. The defendant did neither of these things ; but, having induced the plaintiff to believe that the car would remain bej'Ond the area of danger, he suddenly reappeared with it in front of the plaintiff, partly in the highway. His explanation of this management of his car was that the team was so far up the road that it had passed out of his view. This must be deemed thoughtless inattention on his part, and ** thoughtless inattention" has been declared b}" the Supreme Judicial Court of Maine to be the "essence of negligence." The court held that the defendant's thoughtless inattention under the cir- cumstances was a failure of duty on his part toward the plain- tiff, and the proximate cause of the injury, and that the nmchine again and so caused the horse nary care.'- Knight v. Laniere, 69 N. to run away, a question of fact was Y. App. Div. 454, 74 N. Y. Suppl. 999. clearly presented for determination 9. Pekarck v. Myers, 159 Iowa, 206, whether, under all the circumstances, 140 N. W. 409. his conduct was characterized bv ordi- Frightening Horses. 671 verdict in favor of the plaintiff was warranted by the evi- dence.^" Sec. 541. Lights on machine. The violation of a statute requiring the maintenance of lights on motor vehicles during certain hours may form the basis for a charge of negligence.^ If such a violation results in the frightening of a horse, in the absence of contributory negligence, tlie automobilist is liable for damages which na- turally follow from the fright.^^ Such a statute, however, generally applies only to public highways, not to private roads.^^ Sec. 542. Contributory negligence — general duty of driver of carriage to exercise reasonable care. The general duty of exercising reasonable care, which is im- posed upon all classed of travelers, requires that one driving a horse along a public highway shall use a reasonable degree of caution to avoid injury to himself or vehicle. And, in case a horse is frightened by an automobile, if the driver is guilty of contributory negligence which is one of the proximate causes of its fright, as a general rule, there can be no recovery for damages ensuing to the owner or driver of the carriage." 10. Towle V. Morse, 103 Me. 250, 68 North Dalcota. — Messer v. Bruening, Atl. 1044, citing Tasker v. Farming;- 32 N. Dak. 515, 156 N. W. 241. dale, 85 Me. 523, 27 Atl. 464. Texas.— C-Arsey v. Hawkins (Civ. 11. Sections 344-348. App.), 165 S. W. 64. 12. Stewart v. Smith (Ala. App.), 78 Instructions to jury. — An instruc- So. 724. tion to the effect that, if the plaintiff 13. Stewart v. Smith, 16 Ala. App. was driving along the road and "usinc 461, 78 So. 724. due care for his own safety," is not 14. Illinois. — Donovan v, Lambert, had for failing to define the meaning 139 111. App. 532. of "due care," where o^her instruc- lotva. — Gipe v. Ljiich, 155 Iowa, 627, tions were given defining negligence and 136 N. W. 714; Drier v. McDermott. (Contributory negligence, and the care 157 Iowa, 726, 141 N. W. 315. required of the plaintiff. Brinkman v. Kansas. — Arrington v. Horner, 88 Pacholke, 41 Ind. App. 662, 84 N. E. Kans. 817. 129 Pac. 1159. 762. Maine. — Hobbs v. Preston. 11.5 Me. Failure to jump. — In an action to .')53, 98 Atl. 757. recover damages for personal injuries New Hampshire. — Nadeau v. Saw- su.itained by the plaintiff in conse- yer, 73 N. H. 70, 59 Atl. 369. quence of the frightening of hia horses 672 The Law of Automobiles. The right of a passenger in the carriage to recover for his in- juries which are in part caused by the negligence of the driver, depends on whether the negligence of the driver is to be im- puted to the passenger.^^ The driver of a carriage is required to exercise such care as an ordinarily prudent person would under the circum- stances.^® The driver of a well broken horse may rely on the exercise of ordinary care by those approaching from the rear ; for in using a street frequented by automobiles, he assumes only the risk incident to their operation in a reasonably care- ful manner." But he may be guilty of negligence and be barred from recovering for his injuries, if a violation by him of the law of the road contributed to the accident.^^ So, too, one driving a horse or mule while intoxicated may be guilty of contributory negligence as matter of law.^^ He is not, how- ever, necessarily guilty of contributory negligence because the seat was crowded with several passengers."** Nor is he guilty of negligence as a matter of law because he failed to give the statutory signal for the stopping of the automobile, and the driver of the machine therefore continued his course.^' by the defendant's automobile, an alle- not under the custom of unloading gation in the declaration that at an pjravel," it was held that the answer earlier hour on the same day of the ac- was open to some remark as being am- cident the defendant's automobile had biguous and that the question should passed the plaintiff's carriage and be answered plainly and without any greatly frightened his horses, does not attempt at or room for evasion. Mar- justify the court in presuming that it shall v. Gowans, 20 Ont. W. R. 37, 3 was contributory negligence for the Ont. W. N. 69. plaintiff to fail to jump out of his car- 15. See sections 679-687. riage upon the second approach of the 16. Donovan v. Lambert, 139 111. automobile. Mclntyre v. Orner, 166 App. 532. Ind. 57, 76 N. E. 750, 8 Ann. Cas. 17. Delfs v. Dunshee, 143 Iowa, 381, 1087, 4 L. R. A. (N. S.) 1130. 122 N. W. 236; Coco Cola Bottling Finding as to contributory negli- Works v. Brown, 139 Tenn. 640, 202 gence ambiguous. — Where deceased was S. W. 926. unloading gravel and it was claimed 18. Donovan v. Lambert. 139 111. that, owing to the negligent operation App. 532. of a motor, the horses used in hauling 19. Stewart v. Smith, 16 Ala. App. the gravel became frightened and ran 461, 78 So. 724. away and the jury were asked, "Could 20. Shaffer v. Coleman, 35 Super, deceased by the exercise of reasonable Ct. 386. care and diligence have avoided the ac- 21. Strand v. Grinnell Automobile cident, and the answer was given, "No, Garage Co., 136 Iowa, 68, 113 N. W. Frightening Horses. 673 Sec. 543. Contributory negligence — leaving horse unat- tended. One who leaves a horse unattended and unfastened in the public streets, speaking in general terms, takes the risk of what it may do. A presumption of negligence arises from such conduct and the driver is called upon to explain.^^ The strength of the presumption depends largely on the surround- ing circumstances. If the horse is young, skittish, nervous, or unused to the lights and sounds of a city street, the pre- sumption would be strong; while, if he is old, staid and accus- tomed to city life, it might be slight. But even a staid and veteran horse may be liable to a sudden fright. It is a matter for the jury." The unexplained presence on a public high- way of a team of runaway horses, harnessed to a wagon, un- attended by the owner or other person, raises a presumption of negligent management on the part of the owner; and if they collide with another vehicle on the street because they are not under proper control, the owner will be liable for dam- ages resulting therefrom.^* But, on the other hand, no infer- ence of negligence arises from the mere fact that a gentle horse was left untied in a public street, free from the presence of anything that might disturb him, when the driver was within a few feet of the wagon, and it appears that the driver had been accustomed to use the horse in that way for many years without an accident.^' 488 ; Cusick v. Kinney, 164 Mich. 35, away, knovs-n to its owner, if it was left 128 N. W. 1089. in the street unhitched under circum- 22. Henry v. Klopfer, 147 Pa. St. stances which made it negligence to do 178, 23 Atl. 337. See also Wade v. so. Haywood v. Hamm, 77 Conn. 158, Brents, 161 Ky. 607, 171 S. W. 188. 58 Atl. 695. A person in charge of a 23. Stevenson v. United States Ex- horse on a public highway is bound to press Company, 221 Pa. St. 59, 70 Atl. take care that it will do no injury in 275. consequence of being frightened, and 24. Kokoll V. Brohm & Buhl Lumber if he leaves it, must see that it is Co., 77 N. J. Law, 169, 71 Atl. 120. securely fastened. City of Denver v. Injury by horse.— One may recover Utzler, 38 Colo. 300, 88 Pac. 143, 8 L. for injury caused by a runaway horse R. A. (N. S.) 77. •which has beeil left unhitched, without 25. Bellns v. Kcllner, 67 N. J. L. 255. proof that it had a habit of running 51 Atl. 700, 57 L. R. A. 627 43 674 The Law of Automobiles. Sec. 544. Contributory negligence — nature of horse. Thoiigli the disposition of a horse may not be such as can be characterized as ''gentle," its owner is nevertheless en- titled to drive it along the highway, exercising, however, such degree of caution as would be exercised by an ordinarily pru- dent man in driving an animal of similar nature.-'^ Of course, it is possible that a horse be of such a wild or vicious nature that one knowing its propensities would be charged with con- tributory negligence if he drove the animal along a highway used by motor vehicles.^^ The question depends on the degree of the viciousness and its actions when confronted by an auto- mobile. The contention that it is contributory negligence on the part of the owner of a horse of ordinarily gentle and tractable habits to use him on the highway, simply because the animal occasionally becomes frightened at an automobile, cannot be sustained.^^ As bearing on the questions of negli- gence and contributory negligence, evidence should be re- ceived as to the character of a horse alleged to have been frightened by a motor vehicle. Thus, it may be shown that the horse in question would become frightened and unmanage- able at the sight of an automobile and would turn and run whether or not the machine made a noise, for such a circum- stance is proper to be considered by the jury, together with the other facts, in order to arrive at the cause of the runaway and to determine whether the driver thereof was guilty of 26. Spangler v. Markley, 39 Pa. bile in motion can, with reasonable Super. Ct. 351; Cohen v. M'eader. 119 safety to the rider, be taken by the car Va. 429, 89 S. E. 876; Eoss v. Rose, 109 if the conditions of the statute are com- Wash. 273, 186 Pac. 892. plied with. The plaintiff's horse had 27. '*There may be exceptional cases been struck by a machine once before, in which the wild and dangerous char- and was "pretty shy of machines"; acter of a horse would make his use on but there was nothing in the evidence a road frequented by automobiles neg- to indicate that a man accustomed, as ligence per se, but in the average case, plaintiff was, to the use of horses, and in such a case as we think the evi- would experience any serious difficulty dence, viewed most favorably for de- in riding the horse by a oar if the driver fendants, shows this one to be, it is a thereof obeyed the statute." Cohen v. fair presumption that a horse which is Meader, 119 Va. 429, 89 S. E. 876. likely to become frightened and un- 28. Spangler v. Markley, 39 Pa. manageable upon meeting an automo- Super. Ct. 351, 356, per Orlady, J. Frightening Horses. 675 f . ■ ---' r, , negligence.-^ And, too, it is held, in an action for injuries from a runaAvay alleged to have been caused by a horse being frightened by an automobile, that evidence of the character of the horse as being vicious and having a jDropensity to run away is admissible, on the issue of whether the proximate cause of the injury was the negligence of the defendant or the vice of the animal. And evidence of the reputation of the horse in these respects would be admissible, where the issue of contributory negligence is raised, to show that the plaintiff had knowledge of its character as to viciousness.^^ One who has handled horses for twenty years and has observed their conduct and habits, especially when frightened, is competent to testify as an expert on the characteristics and habits of a horse.^^ Sec. 545. Contributory negligence — driving frightened horse pa5t automobile. It has been held, that, where the driver of a frightened horse attempts to pass an automobile that stopped when the fright of the horse was discovered, he will be guilty of such contributory negligence as will defeat a recovery, unless the evidence shows that there was no other reasonable course that he could pursue, and that the negligence of the driver of the automobile placed him in the position of peril. So where a person who was driving a restive horse, turned off the road for the purpose of quieting his horse, and about the same time the driver of the automobile, discovering the fright of the horse, stopped the machine some distance away and the horse becoming more unmanageable, its driver undertook to force him by the standing machine, and in the attempt was thrown out of the vehicle, it was held that he could not recover.^^ 29. Bliss V. Wolcott. 40 Mont. 491, 31. Delfs v. Dunshee, 143 Iowa. 381. 107 Pac. 423. Compare Wells, Farrjo 122 X. W. 236. & Co. V. Keeler (Tex. Civ. App.). 173 32. Cumliorland Telegraph i- Tcle- S. W. 926. phone Co. v. Yeiser, 141 Ky. 15. 131 30. Cain v. Wintersteen. 144 Mo. S. W. 1040, 31 L. R. A. CS. S.") 1137. App. 1, 128 S. W. 274. 676 The Law of Automobiles. Sec. 546. Joint wrong-doers. Where two defendants, each mounted on a motor tricycle with a gasoline engine emitting steam and making a loud noise, came up behind the plaintiff, who was driving slowly in a wagon and passed him at a high rate of speed, one on each side, causing his horse to shy so that injury resulted, it was held that it was a question for the jury whether each contributed to the accident, and that if both were found to be wrong-doers, it was not material that there was no concert between them or that it was impossible to determine what portion of the injury was caused by each.^^ Sec. 547. Pleading. Automobiles being lawful vehicles, a person who claims to have been injured by the operation of one, as where horses are frightened, must plead and prove that some act or acts of negligence on the part of the operator of the machine were the proximate cause of the injury.^* A complaint alleging that a team was frightened by the negligence of the driver of an automobile in blowing his whistle when directly opposite the team, while driving at a high rate of speed in violation of a city ordinance, in such a manner as to frighten the team, fairly includes the rate of excessive speed as a proximate cause of the accident.^" An answer, in an action for injuries from a runaway, alleged to be caused by a horse being frightened by an auto- mobile, which, in addition to a general denial, contains the allegation that ** plaintiff's alleged damages and injuries, if any she sustained, were caused by and directly due to the plaintiff's own carelessness and negligence," is held not to be a plea of contributory negligence, but a direct negation of the cause of action pleaded.'^ An order requiring a pleading to be made more definite and certain should not require the disclosure of matters which 33. Corey v. Havener, 182 Mass. 250, 35. Grant v. Armstrong, 55 Wash. 65 N. E. 69. 365, 104 Pac. 632. 34. Sapp V. Hunter, 134 Mo. App. 36. Cain v. Wintersteen, 144 Mo. 685, 115 S. W. 463. App. 1, 128 S. W. 274. Frightening Horses. 677 are more properly the subject of a bill of particulars. Thus, in an action founded upon the negligence of the defendant in operating an automobile, allegations in the complaint that the defendant operated his automobile negligently and care- lessly by not giving proper and adequate signals, and by run- ning at a dangerous rate of speed, should not be required to be made more definite and certain; further information as to these allegations, if the defendant be entitled thereto, should be procured by motion for a bill of particulars. On the con- trary, allegations that the defendant was negligent in not ob- serving and obeying rules and regulations promulgated by the authorities having control of the highway and its use should be required to be made more definite and certain. The plaintiffs should be required to state the rules and regulations referred to, and the authorities by whom they were made and pronmlgated.^^ Where the plaintiff alleged that the defendant drove its automobile on a street at a high rate of speed, and negligently ran it against the plaintiff's horses, frightening and injuring them, and causing them to run away, evidence that the auto- mobile approached slowly, but that the driver failed to stop it, or slacken its speed when seeing that the horses were frightened and about to run, was proof of facts not legally identical with those alleged, and the plaintiff could not recover.'^ Sec. 548. Punitive damages. Punitive or exemplary damages are, as a general proposi- tion, allowed to one injured by the wrong of another, when the act is maliciously perpetrated, or when the wrongful act is done knowingly, wantonly and recklessly, under such cir- cumstances as indicate that the wrong-doer knew that the act was fraught with probable injury to person or property. To justify the imposition of such damages, malice must accom- pany the wrong complained of, or such gross negligence or 37. Harrington v. Stillman, 120 N. 38. Tront Brook Ice Co. v. Hartford Y. App. Div. 659, 105 N. Y. Suppl. Electric Light Co., 77 Conn. 338, 59 75. Afl. 405. 678 The Law of Automobiles. oppression or fraud as amounts to malice.^^ The circum- stances attendant upon the perpetration of a wrong largely determine the character of the wrong. An act, done in one place, or under one set of circumstances, may not amount to an act of simple negligence even; the same act, done in another place or under another set of circumstances, may amount to that reckless disregard of persons, lives or property of others as to amount, in law, to wantonness.'"^ Where, in an action for injuries to travelers on a highway by their horse becoming frightened by an automobile and running away, the evidence showed that the operator failed to comply with the statutory regulations as to the maximum speed and warning of his ap- proach, and there was nothing to show that the horse showed symptoms of fright until the automobile was so near that it was probably impracticable to stop it, that the operator knew that the horse was frightened or that he purposely refrained from looking, punitive damages were held not to be recover- able.*^ But, where the driver of the automobile knows of the animal's fright and ignores it in violation of the statute relative to stopping, punitive damages may properly be awarded against him.^ Sec. 549. Questions for jury. Speaking in general terms, in an action to recover damages occasioned by the fright of a horse from a motor vehicle, the negligence of the defendant and the contributory negligence 39. Bowles v. Lowery, 5 Ala. App. the plaintiff's rights may be sufficient 555, 59 So. 696; Searey v. Golden, 172 to show silch malice as to warrant the Ky. 42. 188 S. W. 1098. recovery of punitive damages, although Pleading. — In Alabama, under a the words were spoken after the hap- complaint averring only simple negli- pening of the accident. Martin v. Gar- gence. it is not permissible to recover lock, 83 Kans. 266, 108 Pac. 92. punitive or vindictive damages. Louis- 40. Bowles v. Lowery, 5 Ala. App. villo & N. R. Co. V. Markoe, 103 Ala. 555, 59 So. 696; Searcy v. Golden, 160, 15 So. 511; Roach v. Wright, 195 172 Ky. 42, 188 S. W. 1098. Ala. 333, 70 So. 271 ; Bowles v. Lowery, 41. National Casket Co. v. Powar, 5 Ala. App. 555, 59 So. 690. 137 Ky. 156, 125 S. W. 279. Evidence of words spoken after ac- 42. Searey v. Golden, 172 Ky. 42, cident.— Evidence that the defendant 188 S. W. 1098. used language showing a disregard of Frightening Horses. 679 of the plaintiff are questions for the jury.^' Thus, where it appeared that the plaintiff was leading his horse along the highway Avhen defendant approached in his automobile and the horse became frightened while the car was some distance away, and, as defendant came nearer, reared, struck plaintiff down and injured him, and plaintiff did not signal for the driver to check the machine, it was held that the questions of negligence and contributory negligence were for the jury/* Especially are the issues for the jury, where there is a sharp conflict in the evidence and the determination depends on the credibility of the witnesses and the weight to be given to their testimony.'*^ And even when there is no conflict in the testimony, if different conclusions can rationally be drawn from tlie evidence, a question is presented for tho jury.*'' 43. Arkansas.— BjtA v. Smith. 215 S. AV. 640. lotca. — Strand v. Grinnell Automobile Garago Co., 136 Iowa, 69, 113 N. "\V. 488; Horak v. Dougherty, Il4 N. W. 883; Cresswell v. \Vaimvright, 134 Iowa, 167, 134 X. W. 594; Gipe t. Lynch, 155 Iowa. 627. 136 N. W. 714; Herdman v. Zwart, 167 Iowa, 500, 149 K W. 631; Younkin v. Yettcr, 181 N. W. 793. KentucJcii.—Wade v. Brebts, 161 Ky. 607, 171 S. "\V. 188; Coughlin v. Mark, 173 Ky. 728, 191 S. W. 503; Weiskopf V. Bitter, 29 Ky. Law Eep. 1268, 97 S. W. 1120. Maine. — Blackden v. Blaisdell, 113 Me. 567, 93 Atl. 540; Hobbs v. Pres- ton, 115 Mo. 553, 98 Atl. 757. MicMfian. — Chapman v. Strong, 162 Mich. C23, 127 N. W. 741; Kasprzak V. Chapman. 197 Mich. 552, 164 N. W. 358. Minnesota. — La Brash v. Wall, 134 Minn. 130, 158 N. W. 723. Missouri. — Fields v. Sevier. 184 Mo. App. 6S5, 171 S. W. 610. North CaroUtia. — Conrad v. Shuford, 94 S. E. 424. North Dakota. — Messer v. Bruening, 32 X. Dak. 515, 156 N. W. 241. Sonth Carolina. — Rochester v. Bull, 78 S. Car. 249, 58 S. E. 766. Tennessee. — Coco Cola Bottling Works V. Brown, 139 Tenn. 640. 202 8. W. 926. Washington. — Ross v. Rose, 186 Pac. 892. 44. Cusick T. Kinney, 164 Mich. 25, 128 N. W. 1089. 45. Kirlin v. Chittenden. 176 111. App. 550 ; Kasprzak v. Chapman, 197 Mich. 552. 16i N. W. 258; Burchan v. Robinson. 113 Miss. 527. 74 So. 417; Messer v. Bruening, 32 X. Dak. 515, 156 N. W. 241. 46. Henderson v. Northam. 176 Cal. 493, 168 Pac. 1044. 680 The Law of Automobiles. CHAPTER XXI. RAILROAD CROSSINGS. Section 550. Contributory negligence of auto driver, in general. 551. Statute requiring " highest " degree of care of autoraobilist. 552. Distinction between automobiles and other vehicles. 553. Burden of proof as to contributory negligence of autoist. 554. When contributory negligence not a bar. 555. Care of taxicab driver. 556. Relative rights of autoraobilist and railroad. 557. Duty to look and listen — in general. • 558. Duty to look and listen — place of looking and listening. 559. Duty to look and listen — obstructed view. 560. Duty to look and listen — failiore to observe approaching train, though looking. 561. Duty to look and listen — looking by passenger. 562. Duty to look and listen — reliance on flagman. 563. Duty to look and listen — reliance on open gates. 564. Duty to look and listen — reliance on automatic signals. 565. Duty to look and listen — reliance on signal from engineer. 566. Duty to look and listen — running into train. 567. Duty to stop before crossing track — majority rule. 568. Duty to stop before crossing track — minority rule. 569. Crossing in front of observed train. 570. Choice of crossings. 571. Sounding of horn by automobilist. 572. Speed and control. 573. Violation of statute regulating automobiles. 574. Machine stalled on track. 575. Last clear chance. 576. Acts in emergencies. 577. Function of jury. 578. Negligence of railroad in operation of train — inevitable accident. 579. Negligence of railroad in operation of train — speed. 580. Negligence of railroad in operation of train — warning. 581. Negligence of railroad in operation of train — obstruction along railroad. 582. Negligence of railroad in. operation of train — defective crossing. 583. Negligence of railroad in operation of train — private crossing. 584. Negligence of railroad in operation of train — permissive use of tracks of railroad company. Sec. 550. Contributory negligence of anto driver, in gen- eral. Eeasonable care under the circumstances is the general doc- trine in actions of negligence as to the measure of one's duty. And thus it is said that the driver of an automobile about to Railroad Crossings. 681 cross a railroad track shall exercise such care as a reasonably prudent man would, taking into consideration all of the cir- cumstances which should affect his conduct.^ The oblii?ation 1. United States. — Lehigh Valley R. Co. V. Kilmer, 231 Fed. 628, 145 C. C. A. 514. " The failure of one about to cross a railroad track to use due care deprives him of his right to recover damages, if such negligeiu-e proxi- mately contributed to the injury, but not otherwise. . . . Due care in these cases means ordinary care. It implies the use of such watchfulness and pre- cautions to avoid coming into danger as a person of ordinary prudence would use under the same circum- stances in view of the danger to be avoided. But no greater care than that is required. Totten v. Phipps, 52 N. Y. 354; Davis v. Concord, etc., E. R. Co., 68 N. H. 247, 44 Atl. 388. A person is not bound to use extraordi- nary care or to exercise the best judg- ment or to use the wisest precaution." Lehigh Valley R. Co. v. Kilmer, 231 Fed. 628, 145 C. C. A. 514. Arkansas. — St. Louis-San Francisco Ry. Co. v. Stewai-t, 137 Ark. 6, 207 S. W. 440; Smith v. Missouri Pac. R. Co., 138 Ark. 589, 211 S'. W. 657. Delaware. — Trimble v. Philadelphia, etc., R. Co., 4 Boyce (Del.) 519, 89 Atl. 370. Georgia. — Seabord Air Line Ry. v. Hallis, 20 Ga. App. 555, 93 S. E. 264. Idaho. — Graves v. Northern Pac. Ry. Co., 30 Idaho, 542, 166 Pac. 571. Illinois. — Marshall v. Illinois Cen- tral R. Co., 207 111. App. 619. Indiana. — Pittsburgh, etc., R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609; Central Indiana Ry. Co. v. Wishard, 186 Ind. 262, 104 N. E. 593; Ft. Wayne & N. I. Tr. Co. V. Schoeff, 56 Ind. App. 540, 105 N. E. 924; Central Indiana Ry. Co. V. Wishard, 114 N. E. 970; Union Traction Co. v. Elmore, 66 Ind. App. 95, 116 N. E. 837; Lake Erie & W. R. Co. V. Howarth (Ind. App.), 124 N. E. 687. loioa.—WuiT V. Wabash R. Co., 162 Iowa, 702, 144 N. W. 703; Dombrenos V. Chicago, etc., Ry. Co., 174 N. W. 596; Corbett v. Hines, 180 N. W. 690. Kentucky. — Louisville & I. R. Co. v. Morgan, 174 Ky. 633, 192 S. W. 672; Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337. 200 S. W. 634; Piersall's Adm'r. v. Chesapeake & O. Ry. Co., 180 Ky. 659, 203 S. W. 551; Louisville, etc., R. Co. v. Schuester, 183 Ky. 504, 209 S. W. 542, 4 A. L. R. 1344. '"The duty ordinarily required of one about to cross a railroad track, if he would escape contributing to hia own injury by negligence, is to exer- cise ordinary care to discover the ap- proach of a car and to avoid being struck by it, and to so use and move his own vehicle as t-o avoid colliding with the car upon the railroad track. The care required of him is such care as an ordinarily prudent person would exercise under similar circumstances." Louisville & I. R. Co. v. Morgan, 174 Ky. 633, 192 S. W. 672. Louisiana. — Perrin v. New Orleans Terminal Co.. 140 La. 818, 74 So. 160. NebrasJca. — Morris v. Chicago, etc., R. Co., 101 Neb. 479, 163 N. W. 799. New Jersey. — Jacobson v. New York, etc., 87 N. J. L. 378. 94 Atl. 577. Oklahoma. — St. Louis & S. F. R. Co. v. Model Laundry. 42 Okla. 501, 141 Pac. 970. Oregon. — Robison v. Oregon- Wash- ington R. & Nav. Co., 90 Oreg. 490. 176 Pac. 594. Pennsylvania. — Follmer v. Pennsyl- vania R. Ck>., 246 Pa. St. 367. 92 Atl. 340. Tennessee. — Hurt v. Yazoo, etc., R. Co., 140 Tenn. 623. 205 S. W. 437. Teasaa.— Houston Belt & T. R. Co. 682 The Law of Automobiles. of reasonable care is required, not only for the safety of tlie automobilist, Imt also for the safety of the puhlic.- But '' reasonable care " varies according- to the circumstances, being' commensurate with the dangers involved.'' The care which common prudence requires of a traveler on the highway where there is no such peril, is not the standard by which his conduct must be judged when approaching the tracks of a rail- road in front of a rapidly moving train.* It is the duty of a traveler at a railroad crossing to assume a present danger which includes the immediate approach of a train within a dangerous distance.^ A railroad track is, of itself, a procla- mation of danger which imposes a positive duty on the auto- mobilist of using care to avoid trains.^ "A railroad cross- V. Ruoker (Civ. App.), 167 S. W. 301; Adams v. Galveston H. & S. A. R. Co. (Civ. App.), 164 S. W. 853; St. Louis Southwestern Ry. Co. v. Hariell, 194 S. W. 971; Beaumont, S. L. & W. Ry. Co. V. Myrich, 208 S. W. 935. f/fa/t.— Shortino v. Salt Lake & U. R. Co., 52 Utah 476, 174 Pac. 861. Virginia. — Seaboard Air Line Ry. v. Abernathy, 121 Va. 173, 92 S'. E. 913. 2. Wiar v. Wabash R. Co., 162 Iowa, 702, 144 N. W. 703; Wehe v. Atehison. etc., Ry. Co. 97 Kans. 794, 156 Pac. 742, L. R. A. 1916 E. 455. 3. Section 278. 4. Fogg v. New York, etc., R. Co.. 223 Mass. 444, HI N. E. 960. 5. Riekert v. Union Pac. R. Co. 100 Neb. 304, 160 N. W. 86. 6. Busli V. Brewer, 136 Ark. 248. 206 S. VV. 322; Rayhill v. Southern Pa«. Co. 35 Cal. App. 231, 169 Pac. 718; Walker v. Southern Pac. Co., 38 Cal. App. 3/7, 176 Pac. 175; Waking V. Cincinnati, etc., R. Co. (Ind. App.), 125 N. E. 799; Flannery v. Interurban Ry. Co., 171 Iowa, 238, 153 N. W. 1027; Bunton v. Atchison, etc., Ry. Co., 100 Kans. 165, 163 Pac. 801; Slipp v. St. Louis, etc., Ry. Co. ,,„;„ ,.. New Orleans Terminal 7. McKinney v. Port Townsend & P. Co.. 140 La. 818. 74 So. 160; Wash- S. Ry., 91 Wash. 387, 158 Pac. 107; ington & O. D. Ry. v. Zell's Adm'x. Peck v. New York, etc., R. Co., 50 118 Va. 755, 88 S. E. 309. Conn. 379, 394; quoted in Borhlum v. 10. Oordon v. Illinois Cent. R. Co. New York, etc., R. Co., 90 Conn. 52, 168 Wis. 244, 169 N. W. 570. ^^ ^^'- ^^^- 11. Treadgill v. United Rvs. Co. of 8. Louisville t N. R. Co. v. Trean- St. Louis. 279 Mo. 466 214 S W 161- or's Adm'r, 179 Ky. 337, 200 S. W. Monroe v. Chicago, etc.. R. Co. (>ro.)' 634; Catheart v. Oregon- Wash ington 219 S. W. 68: Daniel v. Pr>-or (Mo.) 684 The Law of Automobiles. Sec. 552. Distinction between automobiles and other vehicles. The courts in many States have said that the driver of a motor vehicle is required to use more caution in passing over a railroad crossing than is required of a pedestrian or traveler in a horse-drawn conveyance.^^ Qne of the reasons for impos- ing greater precautions on the driver of a motor car is that the heavy steel construction of the machine may, perhaps, cause injury to passengers on the train, whereas there is shght possibihty of injury to such persons from a collision with a pedestrian or carriage.^^ The distinction between automobile 227 S. W. 102; Carroll v. Missouri Pac. Ry. Co. (Mo.) 229 S. W. 234. Compare Advance Transfer Co. v. Chicago, etc., R. Co. (Mo. App.), 195 S. W. 566; Slipp v. St. Louis, etc., Ry. Co. (Mo. App.), 211 S. W. 730. The statute involved in these decisions was repealed in 1917. Edmonston v. Bar- rock (Mo. App.), 230 S. W. 650. 12. Northern Pac. Ry. Co. v. Tripp, 220 Fed. 286; Chase v. New York Cent., etc., R. Co., 208 Mass. 137, 94 N. E. 377; Olds v. Hines, 95 Oreg. 580, 187 Pac. 586; Washington & O. D. Ry. v. Zell's Adm'x., 118 Va. 755, 88 S. E. 309. See also Rickert v. Union Pac. R. Co., 100 Neb. 304, 160 N. W. 86. 13. Washington & O. D. Ry. v. Zell's Adm'x., 118 Va. 755, 88 S. E. 309. " A pedestrian is required to be diligent in looking out for his own safety in crossing a railroad track, but his duty is not very great to avoid running in- to a passing engine or train because of the danger of injury to those on the engine or train. The driver of a team of horses hitched to a vehicle is under the same duty to look out for his own safety as is the pedestrian. It is his duty to exercise some care for the safety of those riding on a train. The driver of an automobile must ex- ercise care for himself, and because of the character of the machine that he is driving — aheavy steel structure, dangerous to others — he must exercise some degree of care for the safety of those rightfully traveling on a rail- road train when he is about to cross the track. His machine is easy of control. It will stand where he leaves it. It will not get frightened. If by his negligence he should derail the train, he would be responsible to pas- sengers injured, even though the men in charge of the train were guilty of negligence, if the rule applied to a passenger in an automobile when the driver of the automobile is guilty of negligence is applied to passengers on a train." Wehe v. Atchison, etc., Ry. Co., 97 Kans. 794, 156 Pac. 742, L. R. A. 1916 E. 455. " Because of the fact that a collision betAveen a railroad train and an automobile, endangers, not only those in the automobile, but also those on board the train, and also because the car is more readily con- trolled than a horse vehicle and can be left by the driver, if necessary, the law exacts from him a strict perform- ance of the duty to stop, look, and listen before driving upon a railroad crossing, where the view is obstructed, and to do so at a time and place where stopping, looking, and listening will be effective." Callery v. Morgan's Lou- isiana, etc., S<. S. Co.. 139 La. 763, 72 So. 222. See also Cathcart v. Ore- gon-Washington Rd. & Navigation Co., 86 Oreg. 250, 168 Pac. 308. Railroad Crossings. 685 travelers and other travelers was expressed in one case in the following language : '' With the coming into use of the auto- mobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train is subject to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but when the passing vehicle is a pondrous steel structure, it threatens not only the safety of its own occupants, but also those on the colliding train. And when to the perfect control of such a machine is added the factor of high speed, the temptation to drive over the track at terrific speed makes the automobile, unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly con- trolled, this powerful machine possesses possibilities con- tributing to safety. When a driver of horses attempts to make a crossing and is suddenly confronted by a train, diffi- culties face him to which the automobile is not subject. He cannot drive close to the track, or stop there, without risk of his horse frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and if he goes forward to the track to get an unobstructed view and look for coming trains, he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen that an automo- bile driver has the opportunity, if the situation is one of un- certainty, to settle that uncertainty on the side of safety, with less inconveniepce, no danger and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new con ditions, rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection the 686 The Law of Automobiles. possibilities of automobile crossing accidents will be mini- mized. ' ' ^^ According to the mode of exj^ression used by other courts, it is said that " reasonable " or *' ordinary " care is all that is required of travelers approaching a railroad crossing, and the same degree of care is required regardless of the con- veyance in which he is traveling.^^ The argument that pas- 14. New York Cent. & H. R. Co. v. Maidment, 168 Fed. 21, 23, 93 C. C. A. 415, 21 L. R. A. (N. S.) 794, per BuflBngton, J.; quoted in Biommer v. Pennsylvania R. Co., 179 Fed. 577. 579, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924; Northern Pac. Ry. Co. v. Tripp, 220 Fed. 286. and cited in Chase v. New York Cent. R. Co. (Mass.), 94 N. E. 377. See also, Anderson v. Great Northern Ry. Co. (Minn.), 179 N. W. 687. 15. Monroe v. Chicago, etc.. R. Co. (Mo.) 219 S. W. 68. "The fact that one is driving an automobile may have an influence on the question of con- tributory negligence, just as the num- ber and qualities of horses and the kind of vehicles they are driving may have; but the standard of care to be used which is necessary to absolve from contributory negligence is the same whether the traveler is on foot, on horseback, in a wagon, a carriage, an automobile, or any other vehicle. It is that degree of care which one of ordinary prudence would use in the particular circumstances." Pittsburgh, etc., R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609. " The care required of him is such care as an ordinarily prudent person would exercise under similar circumstances. The same standard of care applies to every one who under- takes to cross a railroad track, Whether he is upon horseback, on foot, or occupying a wagon or auto- mobile. The danger of the crossing. the inability to observe, because of natural obstructions, the qualities of the horse driven, or the automobile in use, the failure to sound a horn or to look for the train, and many other circumstances, are proper subjects for consideration in determining whether the traveler has or has not exercised ordinary care; but these are matters to be considered and passed upon by the jury in determin- ing whether the traveler has or has not exercised ordinary care under the circumstances to look out for the car and keep out of its way." Louisville & I. R. Co. v. Morgan. 174 Ky. 633, 192 S. W. 672. " Appellant asserts that a distinction should be dra^\Ti between automobiles and vehicles drawn by horses in respect to the con- duct of the driver in approaching a railway crossing. It is suggested that the speed of an automobile is under the complete control of a driver, and that, when moving at slow speed, it can be brought to a quick stop within a few feet of the tracks, if necessary to avoid danger, without exposing the occupant to the danger incident to the fright of liorses, which would be likely if the vehicle were drawn by horses. There can be no doubt that it is possible for the driver of an automobile to take some precautions which are not available to the driver of horses, and the facts suggested, if they appear from the evidence, are all proper for the consideration of the jury in de- termining what precautions ordinary care required the driver of a motor car to use under the circumstances of the particular case. Aft^r all is said, however, the driver of a motor Railroad Crossings. 687 sengers on the train may be endangered by a collision be- tween the train and a motor vehicle is not sound, for experi- ence has demonstrated that it is only the occupants of the vehicle who are injured.^^ Sec. 553. Burden of proof as to contributory negligence of autoist. Under the common law rules, the burden of proof, as a gen- eral proposition, was placed on the plaintiif to show, not only the negligence of the defendant, but also his own absence of contributoiy negligence. The rule remains unchanged in some jurisdictions.^' But, in other jurisdictions, statutory modifications have placed the burden on the issue ^vith the defendant, requiring that he show the contributory negligence of the plaintiff as an amrmutive defense.^'^ Ordinarily, there car is required to use only ordinary care; but what he should do in the exercise of due care must depend on the conditions surrounding him. as shown by the evidence, and the means available for controlling the speed and managing the car." Central In- diana Ky. Co. V. Wishard, 186 Ind. 262. 114 N. E. 970. 16. " We do not think the fact that the automobile is capable of inflict- ing more harm than the ordinary ve- hicle is suflBcient to require at cross- ings the application of a rule differ- ent from that applied to heavy wagons or vehicles. It is a matter of common knowledge that when a collision occurs between an automo- bile and an engine, the result is the same as Avhen the engine strikes a •wagon, buggy, or other ordinary ve- hicle — the occupants of the automo- bile or vehicle are the ones who are crippled or killed, and not the pas- sengers on the train or its employees." Louisville & X. R. Co. v. Ireanor's Adm'r., 179 Ky. 337. 200 S. W. 634. 17. Simnes v. Illinois Cent. K. Co.. 201 111. App. oTS: rittshm-h. etc., R. Co. V. Dove. 184 Ind. 447. Ill X. E. 609; Chicago, etc., Ry. Co. v. Van Stone (Ind App.), 119 N. E. 874; Fogg V. New York, etc., R. Co., 223 Mass. 444, 111 X. E. 960. 18. Ujiited States. — Emens v. Le- high Valley R. Co.. 223 Fed. 810; Lake Erie & W. R. Co. v. Schneider, 257 Fed. 675. California . — Ellis v. Central Califor- nia Tract. Co.. 37 Cal. App. 390, 174 I'ac. 407. Indiana. — Indiana Union Traction Co. V. Love, 180 Ind. 442, 99 X. E. 1005; Lake Erie & W. R. Co. v. Howarth (Ind. App.), 124 X. E. 687. Massachusetts. — Morel v. X. Y.. etc., n. (o.. 131 X. E. 175. Missouri. — ^Morrow v. Hines (Mo. App.) 233 S. W. 493. }foniana — George v. Xorthcrn Pac. Ry. Co. (Mont.). 196 Pac. 869. North Carolina. — Goff v. Atlantic Coast Line R. Co., 179 X. Car. 216. 102 S. E. 320; Parker v. Seaboard Air Line Co.. IIK) S. E. 755. Texas. — ^loye v. Beaumont. S. L. & \V. Ky. Co. (Tex. Civ. App.), 212 S. \V. 471; Chicago, etc., R. Co. v. John- son (loK. Civ. App.). 224 S. W. 277. ^Vashington. — Hines v. Chicago, etc.. Ry. Co., 117 Pac. 795. Instructions. — A charge to the jury 688 The Law of Automobiles. is no presumption that the driver of the machine was or was not in the exercise of due care at the time of the injury.^^ But, in some jurisdictions, the rule is adopted that a pre- sumption of due care arises on the part of one who was killed while crossing a railroad track.-^ Sec. 554. When contributory negligence not a. bar. Under the common law system, contributory negligence on the part of the driver of a motor vehicle when crossing a rail- road track, bars any recovery for the injuries to the driver or to the machine.*^^ The negligence of the railway em- ployees does not excuse the negligence of the operator of the car.^- Of course, under the general principles of the law of negligence, contributory negligence is not a bar unless such negligence was one of the proximate causes of the injury on which the action is based.^^ But, if an automobilist negli- gently crosses or stops on a railroad track and is struck by a train, there is generally no difficulty with the question of proximate cause.^* Statutory enactments have changed that the burden of proving contribu- v. Cooper (Ala.), 86 La,. 396; Smith tory negligence is upon the defend- v. Missouri Pac. R. Co., 138 Ark. 589, ant, has been condemned, because the 211 S. W. 657; Perrin v. New Orleans instruction should have concluded Terminal Co., 140 La. 818, 74 La. 160; " unless such contributory negligence Lanier v. Minneapolis, etc.. Ry. Co. was disclosed by the plaintiff's evi- (Mich,), 176 N. W. 410; Daniel v. dence, or could fairly be inferred Pryor (Mo.), 227 S. W. 102; Swegart from the circumstances" or in Ian- v. Lush, 196 Mo. App. 471, 192 S. W. guage of similar import. Norfolk 138; Atlantic Coast Line R. Co. v. Southern R. Co. v. Smith, 122 Va. 302, Church, 120 Va. 725, 92 S. E. 905. 94 S. E. 789. 22. Lehigh Valley R. Co. v. Kilmer, 19. Chicago, etc., Ry. Co. v. Van 231 Fed. 628, 145 C. C. A. 514. Stone (Ind. App.), 119 N. E. 874. 23. Hines v. Champion (Ala.), 85 Bee also Sohl v. Chicago, etc., Ry. Co., So. 511; Hines v. Paden (Ala.), 87 So. 183 Iowa 616, 167 N. W. 529. 88; Chicago, etc., R. Co. v. Neizgodski, 20. Graves v. Northern Pac. Ry. Co., 66 Ind. App. 557. 118 N. E. 559; Mon- 30 Idaho, 542 166 Pac. 571; Rice v. roe v. Chicago, etc., R. Co. (Mo.), 219 Erie R. Co. (Pa.), 114 Atl. 640; Bar- S. W. 68; Cottam v. Oregon Short Line rett V. Chicago, etc., R. Co. (Iowa). R. Co. (Utah), 187 Pac. 827. See also 175 N. W. 950; Smith v. Inland Em- Lehigh Valley R. Co. v. Kilmer, 231 pire R. Co. (Wash.), 195 Pac. 236; Fed. 628. 145 C. C. A. 514. And see See also Gillett v. Michigan United section 575. Trax:t. Co., 205 Mich., 410. 171 N. W. 24. Bagdad Land & Lumber Co. v. 536. Money way (Fla.), 86 So. 687; An- 21. Lehigh Valley R. Co. v. Kilmer, drews v. Mynier (Tex. Civ. App.). 231 Fed. 628, 145 C. C. A. 514; Hines 190 S. W. 1164. Railroad Crossings. 689 many of the common law rules of negUgence. For example, in a few States, the doctrine of " comparative " negligence has been created, under which contributory negligence m some cases is a partial, not an absolute, defense.^^' In Texas, 25. nines v. Hoover, 271 Fed. 645; Seaboard Air Line Ky. Co. v. Good (Fla.), 84 So. 733; Central of Ga. Ry. Co. V. McKey, 13 Ga. App. 477, 79 S. E. 378; Central of Ga. Ry. Co. v. Lar- sen, 19 Ga. App. 413, 91 S. E. 517; Yazos. etc., R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Hines v. McCul- lers, 121 Miss. 666, 83 So. 734. Instruction to jury.— Where there is evidence of mutual negligence on the part of the driver of the automo- bile, as well as on the part of the de- fendant and the comparison of such negligence is, therefore, a question for the jury, it is error to refuse a written request to charge as follows: " If you believe that the plaintiflf and defendant were both negligent, but that the negligence of the plaintiff exceeded that of the defendant, or equalled it, then the plaintiff could not recover, and you should find for the defendant." Central of Ga. Ry. Co. V. McKey, 13 Ga. App. 477. 79 S. E. 37S. Comparative negligence in Georgia. _In Central of Ga. Ry. Co. v. Lar- son, 19 Ga. App. 413, 91 S'. E. 517, the court said: "While at common law, if the negligence of the plaintiff contributed to the injury, he could not recover in this State the liabil- ity of railroad companies for injury done by them to persons or property has been modified, so that the law governing such liability is as follows: Under the provisions of section 2781 of the Civil Code, no person shall re- cover damages from a railroad com- pany for injury done to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agent of the company are 44 both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him. The doctrine usually referred to as that of contributory negligence is not the law of this State, inasmuch as that term, properly used, expresses, not such negligence as would dimin- ish, but only such negligence as would preclude, a recovery. The doctrine which here obtains can be and is more accurately and properly desig- nated as that of comparative negli- gence. . . . Thus, if the plaintiff and the defendant were both negli- gent, the former can recover, unless his negligence was equal to or greater than the negligence of the defendant, except that this rule is further quali- fied by the provisions of section 4426 of the Civil Code, which provides that if the plaintiff, by ordinary care, could have avoided the consequences to him<^elf caused by the defendant's negligence, he is not. in such event, entitled to recover. . The rule stated in section 4426. however, ap- plies only where the defendant's neg- ligence became apparent to the per- Ro'n injured, or where, by the exer- cise of ordinary care, he could have become aware of it. and he thereafter failed to exercise ordinary and rea- sonable diligence to avoid the conse- quences of the defendant's negligence. Thus it will be seen that a plaintiff can recover partial damages for injuries caused by the negligence of a railway company, notwithstand- ing his own fault, which might, in some less degree, have contributed thereto provided that he exercised ordinarv and reasonable caution by plaintiff to avoid the consequences of 690 The Law or Automobiles. the rule of comparative negligence applies as between com- mon carriers and their employees, but not as between com- mon carriers and persons injured by crossing their tracks.-^ In some jurisdictions gross or wanton negligence on the part of a railroad company may have the effect of excusing the contributory negligence of a traveler,-" but not the gross negligence of the traveler.-^ But the mere fact that the rail- road company in the running of its trains violated a munici- pal ordinance, or even several ordinances simultaneously, does not make wanton or willful negligence which will render the company liable for the injuries irrespective of simple negligence on the part of the traveler.-^ Wanton or willful misconduct cannot be charged against the railroad because it approaches a much used crossing without proper warning, where the speed of the train is very reasonable."** Sec. 555. Care of taxicab driver. As between the driver of a taxicab and a passenger riding therein, the driver is considered as a common carrier and is required to exercise what is sometimes termed as the '* high- est " degree of care.^^ This doctrine, however, has no appli- cation as between the driver and the railroad over whose track he attempts to pass but is struck by a train. In such a case, the rule of ordinary care measures the duty of the driver.-''- the defendant's negligence, after it 632. 152 N. W. 204. had or should have become apparent. 28. Morel, New York, etc.. R. Co. Ordinarily the question of negligence, (Mass.), 131 N. E. 175. both on the part of the plaintiff and 29. Fluckey v. Southern Ry. Co., 242 the defendant, is an issue to be de- Fed. 469; Chatelle v. Illinois Cent. R. termined by the jury; but where the Co., 210 111. App. 475. plain tiflF's petition shows on its face 30. Bailey v. Southern Ry. Co., 196 that he has no right to recover, and Ala. 133, 72 So. 67. See also, Evans v. this question is raised by general de- Illinois Cent. R. Co. (Mo.), 233 S. W. murrer, it is the duty of the court to :}P7, sustain the demurrer and dismiss the 31. Section 282. petition." 32. Southern Ry. Co. v. Voughan^s 26. Andrews v. Mynier (Tex. Civ. Adm'r, 118 Va. 692, 88 S. E. 305, L. App.), 190 S. W. 1164. ].. A. 1916 E. 1222. 27. See Rouso v. Blair. 185 Mich. Railroad Crossings. 691 Sec. 556. Relative rights of automobilist and railroad. At a point where a railroad track crosses a public highway, motor vehicles along tlie road and railroad trains along the railroad are said to have equal rights to the use of the cross- ing.^" Such a statement, however, is not to be construed as 33. Hurt V. Yazoo, etc., R. Ct-.. 140 Tenn. 623, 205 S. W. 437; Galveston- Houston Elec. Ry. Co. v. Patella (Tex. Civ. App.), 222 S. W. 615. See also Flannery v. Interurban Ry. Co,, 171 Iowa, 238, 153 N. W. 1027. Erroneous instruction to jury. — It has been held improper for the pre- siding judge to charge the jury " That as a matter of law the de- ceased (the driver of an automobile) had an equal right to travel on the dirt road at the intersection with the railroad, as the railroad had to run its train on its track at that point." Baker v. Collins (Tex. Civ. App.). 199 S. W. 519, wherein the court, holding that the charge was confus- iig end misleading and th?refci\.> ci- loneous. said: "As bearing upon the question of negligence charged against railroad companies in the operation of their trains, our Supreme Court has frequently said that railroads have no exclusive right to the use of their tracks where they cross public highways; that the public have the right to travel such highways, and in .so doing to cross railroad tracks; and that tlic law imposes upon those operating railroad trains the duty of exercising due care to prevent injury to persons who may be so traveling. And in considering the question of negligence on the part of the rail- road company, it is not improper to give such charge, if it is so framed as to limit it to that question. The charge now under consideration was nut rolriitcil to a consideration of till" (luestiun of the defendant's neg- ligence, and the jury had the right to consider it in deterniininir the •luostion of contributory negligence. And when so considered, and in view of the fact that it specifically de- clared that Mr. Collins had an equal right to travel on the dirt road at the intersection of the railroad as the railroad had to run its trains on its track at that point, the jury may liave concluded that the charge meant that as Collins had such right, proof c)f the fact that he knowingly and willfully ran his automobile upon the track at a time when he must ' have known that it was very danger- ous to do so would not defeat the plaintiffs' right to recover. It is not sufficient answer to say that in its main charge the court instructed the jury othei^wise, and therefore the re- quested charge was harmless. The point is that this charge when liter- ally construed was in contlict with the main cliarge of the court, and therefore it was calculated to confuse and mislead the jury upon one of the most vital questions in the case. Of course, it is not true in either law or reason that when a person is trav- eling a public highway which crosses a railroad track, that such person and the railroad each have the right to pass the intersection at tlie same time. Under such circumstances, and in the very nature of things, one or the other must have the right of precedence, because they cannot both occupy the point of intersection at tlie same time. Such right of prece- dence is not fixed by statute in this Slate, but, generally speaking, com- mon sense and the public welfare dic- tate that it should be accorded to railroad trains; and it is a matter of 692 The Law of Automobiles. interfering with the rights of priority which are accorded to railroad trains so far as its tracks are concerned.^* '' Trav- elers approaching a pubHc crossing must bear in mind that, while their rights and those of the railroad company at that point are ' mutual,' ' reciprocal,' and * coextensive ' in gen- eral, the law has always accorded, and in the nature of the case must accord, to a moving train the right of way. ' '^"* Sec. 557. Duty to look and listen — in general. In some jurisdictions, an imperative duty is placed on the driver of a motor vehicle to stop, look and listen before cross- ing the tracks of a railroad company. This view, however, is the minority view; and the rule sustained in most States is that there is no imperative duty to stop under all circum- stances.^^ But whatever difference of opinion there may be on the question of stopping an automobile before crossing the track, it is practically agreed that the driver is guilty of con- tributory negligence as a matter of law if he does not look and listen for approaching trains before venturing on the tracks.^^ Both looking and listening are ordinarily required; common knowledge that, as a general ington & 0. D. Ry. v. Zell's Adm'x, 118 rule, the traveling public recognize Va. 755, 88 S. E. 309. " The use of and accord such right of precedence the highway at these crossings by the to approaching trains. We do not railway and the general public is a state this as a rule of law to be given common one, to be enjoyed by each in charge to juries, though the writer, consistently with the rights of the speaking for himself only, believes other. While the railroad has gener- that it should be." See also. Southern ally the priority of right of way, that Traction Co. v. Kirksey (Tex. Civ. priority depends upon the principle of App.), 222 S. W. 702. equality as applied to the nature of 34. Indiana Union Traction Co. v. the public service it performs and the Love, 180 Ind. 442, 99 N. E. 1005; character of the machinery and ap- Lake Erie & W. Ry. Co. v. Sams (Ind. pliances necessary for its prosecu- App.), 127 N. E. 566; Dombrenos v. tion." Jackson v. Southwest Missouri Chicago, etc., Ry. Co. (Iowa), 174 N. R. Co. (Mo.), 189 S. W. 381. W. 596; Walters v. Chicago, etc., R. 36. Section 567. Co., 47 Mont. 501, 133 Pac. 357, 46 L. 37. United Sifa^es.— Northern Pan. E. A. (N. S.) 702; Olds v. Hines Ry. Co. v. Tripp, 220 Fed. 286; Dela- 95 Oreg. 580, 187 Pac. 586; Washing- ware L. & W. R. Co. v. Welshman, 229 ton & O. D. Ry. v. Zell's Adm'x, 118 Fed. 82, 143 C. C. A. 358; Lehigh Val- Va. 755, 88 S. E. 309. ley R. Co. v. Kilmer. 231 Fed. 628, 143 35. Pittsburgh, etc., Ry. Co. v. Nich- C. C. A. 514. ols (Ind. App.), 130 N. E. 546; Wash- Railroad Crossings. 693 the traveler has no right to depend exclusively on his hearing when there are attendant noises which materially interfere Alabama.— Bailey v. Southern Ry Co., 196 Ala. 133, 72 So. 67. Arfconsas.— Bush v. Brewer, 136 Ark. 248, 206 S. W. 322. California.— Thompson v. Southern Pac. Co., 31 Cal. App. 567. 161 Pac. 21; Jones v. Southern Pa«. Co., 34 Cal. App. 629, 168 Pac. 586; Murray v. Southern Pac. R. Co., 169 Pac. 675; Rayhill v. Southern Pac. C'>. 35 Cal. App. 231, 169 Pac. 718; Walk- er V. Southern Pac. Co., 38 Cal. App. 377, 176 Pac. 175. Georgia.— ilines v. Stevens {Ga. App.), 106 S. E. 298. 7Wi?iois.— Sunnes v. Illinois Cent. R. Co., 201 111. App. 378; Elder v. Pitts- burgh, etc., R. Co., 186 111. App. 199. Indiana. — Pittsburgh, etc., R. Co. V. Dove, 184 Ind. 447, lU N. E. 609; Central Indiana Ry. Co. v. Wishard. 186 Ind. 262, 114 N. E. 970; Waking v. Cincinnati, etc., R. Co. (Ind. App.), 125 N. E. 799. /otoa.— Duggan v. Chicago, M. & St. P. Ry. Co., 159 N. W. 228; Beemer V. Chicago, R. I. & P. Co., 162 N. W. 43; Sohl V. Chicago, etc., Ry. Co., 183 Iowa 616, 167 N. W. 529; Hawkins v. Interurban Ry. Co., 184 Iowa 232, 168 N. W. 234; Corbett v. Hines (Iowa), 180 N. W. 690; Reynolds v. Interurban Ry. Co. (Iowa), 182 N. W. 804. £:onsas.— Cor ley v. Atchison, etc., Ry. Co., 90 Kans. 70. 133 Pac. 555; Jacobs V. Atchison, etc., Co., 97 Kans. 247. 154 Pac. 1023; Wehe v. Atchison, etc., Ry. Co., 97 Kans. 794, 156 Pac. 742, L. R. A. 1916 E. 455; Prichard v. Atchison, T. & S'. E. Ry. Co., 99 Kans. 600, 162 Pac. 315; lum- ton V. Atchison, etc., Ry. Co.. 100 Kans. 165, 163 Pac. 801; Kirkland v. Atchison, etc., Ry. Co., 179 Pac. 362. Louisiana.— W&lV^er v. Rodiguez. 139 La. 251, 71 So. 499; Perrin v. New Orleans Terminal Co., 140 La. 818, 74 So. IGO. Maiue.^onant v. Grand Trunk Ry. Co., 114 Me. 92, 95 Atl. 444. Massachusetts. — Fogg v. New York, etc., R. Co., 223 Mass. 444, 111 N. E. 960. Michigan. — Pershing v. Detroit, etc., R. Co., 206 Mich. 304, 172 N. W. 530; Hardy v. Pere Marquette Ry. Co., 208 Mich. 622, 175 N. W. 462; Groves v. Grand Trunk Western Ry., 178 N. W. 232. Mississippi. — Yazoo, etc., R. Co. v. Williams, 114 Miss. 236, 74 So. 835. Missouri.— Coby v. Quincy, etc., R. Co., 174 Mo. App. 648, 161 S. W. 290; Swigart v. Lush. 196 Mo. App. 471, 192 S. W. 138: Tannehill v. Kansas City, etc., Ry. Co., 279 Mo. 158, 213 S. W. 818; Slipp v. St. Louis, etc., Ry. Co. (Mo. App.), 211 S. W. 730; Cen- tral Coal & Coke Co. v, Kansas City So. Ry. Co. (Mo. App.), 215 S. W. 914; Lyter v. Hines (Mo. App.), 223 R. W. 795; Alexander v. St. Louis, etc., Ry. Co. (Mo.), 233 S. W. 44; Evans v. Illinois Cent. R. Co. (Mo.), 233 W. 397. ifon). V. :\Iyrich (Civ. App.), 208 S. W. 93.-) : Southern Traction Co. v. Kirksey, (Civ. App), 222 S. W. 702; Hinea v. Roan (Civ. App), 230 S. W. 1070. Utah. — Shortino v. Salt Lake & U. R. Co., 52 Utah 476, 174 Pac. 861. Virginia. — Virginia & S. W. Ry. Co. V. Skinner, 119 Va. 843, 89 S. E* 887; Washington & O. D. Ry. v. Zell's Adm'x, 118 Va. 755. 88 S. K. .309. Washington. — Golay v. Northcni I'ar. Ry. Co., 177 Pac. 804; Miller v. Northern Pac. Ry. Co., 105 Wash. (i45. 178 Pac. 808; Hoyle v. Northern Pac. R. Co., 105 Wash. 652, 178 Pac. 810; Monso v. Bellingham & N. Ry. Co.. 106 Wash. 299, 179 Pac. 848. West Virginia. — Helvey v. Prince- Ion Power Co., 99 S. E. 180. Wisconsin. — Puhr v. Chicago, etc., R. Co., 176 N. W. 767. Statutes may modify the " look and listen " rule. Baer v. Lehigh, etc., Ry. Co., 93 J. L. 85. 106 Atl. 421; Gordon v. Illinois Cent. R. Co., 16& Wis. 244, 169 N. W. 570. Instruction to jury. — ^The plaintiflF's iL'slaUir was niii ilmsu and killed by a train of the defendant railroad cor- poration while ho was endeavoring to drive his automobile over its tracks. The court, on request by defendant's counsel, refused to charge, substan- tially, that if the jury believed that the deceased had a fair vieAv of ap- proaching trains at ;ill places within not less than one liundred and fifty feet from the cro.ssirig, he was negli- gent m not discovering the approach- ing train. Ilcld, that as there was. evidence from which the jury might have found facts as they were as- sumed in the request, the refusal to so charge was error. Kidd v. New York Central, etc., R. Co., 218 N. Y. 313, 112 N. E. 1051. Muffling engine. — If looking is in- effective and the noise of the engine interferes with his hearing, it may be Iiis duty to muffle the engine. Central Coal & Cc4ce Co. v. Kansas City So. Ry. Co. (Mo. App.). 215 S. W. 914; Lyter v. Hines (Mo. App.), 223 Si W. 795. Driver looking down at engin-j of auto. — When, as an automobile was approaching a railroad track, the driver was looking down and listen- Railroad Crossings. 695 crossing.'^'* The general rule applies to a city crossing as well as to one in a rural section."''-' And it applies to a cross- ing over a siding or switch track as well as to a crossing over the main line track of the railroad."*'^ But it may not be ap- plicable when there is no evidence sho^^'ing that looking and listening would have given notice in time to have avoided the colli si on. "^^ Indeed, it is recognized that in some cases the surrounding circumstances may be such as to relieve one from the absolute duty of looking and listening for trains.'*- Thus, one may be excused from looking and listening for trains when he is not conscious that he is approaching a rail- road track.^^ ing to the engine of his machine, and the other occupants were joking and " kidding " the occupants of another automobile, none of them giving any attention to the crossing, it Avas held that all the occupants of the machine were guilty of negligence. Conant v. Grand Trunk Ry. Co., 114 Me. 92, 95 Atl. 444. A presumption arises that a person killed at siich a crossing did look and listen and the defendant has burden of showing contributory negligence. Emens v. Lehigh Valley R. Co., 223 Fed. SIO; Hines v. Hoover, 271 Fed. G45. 38. Cathcart v. Oregon -Washington Rd. & Navigation Co., 86 Oreg. 250. 168 Pac. 308; Robison v. Oregon- Washington R. & Nav. Co., 90 Oreg. 490, 176 Pac. 594. See also Siejak v. United Rys. etc.. Co.. 135 Md. 367, 109 .Ul. 107. 39. Jacobs v. Atchison, etc.. Ry. Co., 97 Kans. 247, 154 Pac. 1023. 40. Morrow v. Hines (Mo. App.). 233 S. W. 493; Peoples v. Pennsyl- vania R. Co., 251 Pa. St. 275, 96 Atl. 652. 41. Union Traction Co. of Indiana v. Hawortli. 1S7 Ind. 4.-.I. 11.', N. E. 753. 42. Case v. Atlanta, etc.. Ry., 107 S. C. 216, 92 S. E. 472; Hurt v.' Yazoo, etc., R. Co., 140 Tenn. 623, 205 S. W. 437; Seaboard Air Line Ry. v. Aber- nathy. 121 Va. 173, 92 S. E.' 913. "The rule that it is negligence per se to en- ter upon a railroad tra^-k without looking or listening has been applied to the ordinary case in which the plaintiff, or the deceased, wa-s not pre- vented from seeing or hearing by any other circumstances, and had the use of his faculties. In such case an ordi- narily prudent man is deemed, under the law, to be guilty of such negli- gence as would bar a recovery if he entered upon the tra<'k without doing so. And it is only in exceptional cases that the rule does not apply, and in eases in which the facts re- lied upon as creating the exception itself are not superinduced by the want of due care. But what is due care in the circumstances of the ex- ception is ordinarily a question for the jury." Hurt v. Yazoo, etc.. R. Co.. 140 Tenn. 623. 205 S. W. 437. 43. Hurt V. Yazoo, etc.. R. Co. 140 IVnn. 623. 205 S. W. 437. 696 The Law of Automobiles. Sec. 558. Duty to look and listen — place of looking and listening. The driver of a motor vehicle about to cross a railroad track must at an appropriate place use his faculties to learn of the approach of trains.*^ That is, he must look, where, by looking he can see; and must listen, where, by listening he can hear.'*^ " To have looked too late was not to have looked 44. United States. — Delaware, L. & W. R. Oo. V, Welshman, 229 Fed. 82, 143 C. C. A. 358. Arkansas. — Bush v. Brewer, 136 Ark, 248, 206 S. W. 322. Illinois. — Sunnes v. Illinois Cent. R. Co., 201 111. App. 378. Indiana. — Pittsburgh, etc., R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609; Central Indiana Ry. Co. v. Wishard, 186 Ind. 262, 114 N. E. 970; Indian- apolis, etc.. Tract. Co. v. Harrell (Ind. App.), 131 N. E. 17. 'The duty to use ordinary care to avoid injury which is imposed on one about to make use of a street over which rail- road trains cross does not ordinarily require him to stop, but it does re- quire him to look and listen and to exercise ordinary care to select a place where the act of looking and listening will be reasonably effective." Pitta- burgh, etc., R. Co. V. Dove, 184 Ind. 447, 111 N. E. 609. Massachusetts. — Fogg v. New York, etc., R. Co., 223 Mass. 444. Ill N. E. 960. Michigan. — Groves v. Grand Trunk Western Ry., 178 N. W. 232. Missouri. — Lyter v. Hines (Ma. App.), 223 S. W. 795. IS! etc York. — ^Spencer v. New York Cent., etc., R. Co., 123 N. Y. App. Div. 789. 108 N. Y. Suppl. 245, affirmed without opinion, 197 N. Y. 507. Pennsylvania. — Peoples v. Pennsyl- vania R. Co., 251 Pa. St. 275, 96 Atl. 652. Tennessee. — Stem v. Nashville Ry., 142 Tenn. 494, 221 S. W. 192. Texas. — Texas, etc.. R. Oo. v. Hous- ton Undertaking Co. (Civ. App.), 218 S. W. 84. Virginia. — ^Virginia & S. W. Ry. Co. V. Skinner. 119 Va. 843, 89 S. E. 887; Norfolk & W. Ry. Co. v. Simmons, 103 6'. E. 609. Within last thirty feet. — ^A chauf- feur, forty years of age and in full possession of his faculties, who was injured by a railroad train while driving an automobile in broad day- light over a grade crossing, is guilty of contributory negligence, as matter of law, when the evidence shows that the train was in ■ plain sight long enough to have enabled him to bring the machine to a standstill before reaching the track, and that he was driving so slowly that he could have stopped the car immediately. The fact that the plaintiff looked twice before reaching the track and did not see the train does not show freedom from contributory negligence if he traversed the last thirty feet before reaching the track without looking; nor is his failure to do so excused by the fact that the car was hemmed in by a crowd of people bound for a nearby railroad station. Spencer v. New York Central, etc., R. Co., 123 N. Y. App. Div. 789, 108 N. Y. Suppl. 245. affirmed without opinion, 197 N. Y. 507. 45. Delaware, L. & W. R. Co. v. Welshman. 229 Fed. 82, 143 C. C. A. 358; .Jone.s v. Southern Pac. Co., 34 Cal. App. 629. 168 Pac. 586; Rickert V. Union Pac. R. Co., 100 Neb. 304, 160 N. W. 86; Askey v. Chicago, etc., Ry. Co., 101 Neb. 266, 162 N. W. 647; Railroad Crossings. 697 at all."^" Failing to use his faculties at a proper place may be as serious as a failure to use them at all; and may pre- clude a recovery for his injuries.^^ But the law does not re- quire that the driver look at the precise place and time when and where looking would be of the most advantage.*^ All that is required of the driver is that he exercise reasonable care in selecting the place in view of the conditions before Cathcart v. Oreg-oii-Washington Rd. & Navigation Co., 86 Oreg. 250, 16S Pac. 308; Luken v. Pennsylvania R. Co. (Pa.), 110 Atl. 151. "The incontest- able conclusions of fa«t to be drawn from the facts established by the evi- dence are that Pritohard, had he looked when he was 30 feot from the track, or anywhere from that point until he reached the place where he was struck, could have seen the ap- proaching train; that there was noth- ing to prevent his seeing the train, and that if he looked, he saw the train coming and attempted to cross the track in front of it. The facts show contributory negligence on the part of James' A. Pritchard and prevent any recovery." Pritchard v. Atchison, etc., Ry. Co', 99 Kans. 600. 162 Pac. 315. 46. Walker v. Rodiguez, 139 La. 251, 71 So. 499. 47. Thompson v. Southern Pac. Co., 31 Cal. App. 567, 161 Pac. 21; Indian- apolis, etc., Tract. Co. v. Harrell (Ind. App.), 131 N. E. 17; Sturgeon v. Min- neapolis, etc., R. Co. (Iowa), 174 N. W. 381; Walker v. Rodiguez. 139 La. 251, 71 So. 499; Rickert v. Union Pac. R. Co., 100 Nob. 304. 160 -N. W. 86; Shoemaker v. Central Railroad of New Jersey (N. J.). 89 Atl. 517; Cathcart V. Oregon- Washington Rd. & Navi- gation Co., 86 Oreg. 250, 168 Pac. 308. "The duty of due care is not dis- charged unless the traveler looks and listens at a place where looking and listening will be effective, unless a reasonable excuse exists for failing so to do." Rickert v. Union Pac. R. Co., 100 if eh. 304, 160 N. W. 86. "It is undisputed that the plaintiff knew that ho was approaching the railroad, because he had just crossed it, and he testifies that the automobile was mov- ing slowly, and that he could have stopped it within a distance of 10 feet. It also appears that the train was coming from the north, and, when the plaintiff was within 42 feet of the track, he had a clear view along it of 900 or more feet ; and the clear weight of the testimony shows that he did not look along the track in the direc- tion from which the train was coming until he was very near to the track. It also appears that a number of other persons who were farther away than he saw the train coming, and shouted warnings to him. We fail to perceive how it was possible under this evi- dence for the jury to find that the plaintiff exercised even ordinary care in approaching the crossing. If he had looked when at least 42 feet from the track, he could have seen the train, and, if he did not see it, it can only be because he did not look." Shoe- maker v. Central Rd. of N. J. (N. J. L.), 89 Atl. 517. 48. Lehigh A^'allcy R. Co. v. Kilmer. 231 Fed. 628. 145 C. C. A. 514; Al- loggi V. Sotithern Pac. Co. (Cal. App.). 173 Pac. 1117; Pittsburgh, etc.. R. Co. V. Dove. 184 Ind. 447. Ill N. E. 609; Central Indiana Ry. Co. v. Wishnrd. 186 Ind. 262. 114 N. E. 970: Rupener V. Cedar Rapids & Iowa City Railway & Light Co.. 178 Iowa. 615. 159 N. W. 1048. 698 The Law of Automobiles. him and the danger reasonably to be anticipated.^^ Whether he nsed ordinary care in the selection of his view point, may be a question within the province of the jury/^^ The circum- stances may require the autoist to continue to look as he ap- proaches the cro&sing,5i yet the courts recognize that prud- ence requires him to give at least a part of his attention to the road and the crossing. Especially is this so when the crossing is rough and in bad condition, and he is under no absolute duty to stop.^- Where there is evidence that the driver stopped the machine within three or four yards of the track and looked for approaching cars but saw none, the courts will not say as a matter of law that he was guilty of contributory negligence in proceeding across the track.^^ 49. Alloggi V. Southern Pac. Co., 37 Cal. App. 72, 173 Pac. 1117; Pitts- burgh, etc., K. Co. V. Dove, 184 Ind. 447. Ill N. E. 609; Lake Erie & W. R. Co. V. Sanders (Ind. App.), 125 N. E. 793: Waking v. Cincinnati, etc., R. Co. (Ind. App.), 125 N. E. 799; Hauft V. S. D. Cent. Ry. Co.. 34 S..Dak. 183, 147 N. W. 986. 50. Van Orsdal v. Illinois Cent. R. Co., 210 111. App. 619; Pittsburgh, etc., R. Co. V. Dove, 184 Ind. 447, 111 N. E. 609; Union Traction Co. of Indiana V. Haworth. 187 Ind. 451, 115 X. E. 753; Littlewood v. Detroit United Ry., 189 Mich. 388, 155 N. W. 698; Mis- souri, etc., R. Co. V. Thayer (Tex. Civ. App.), 178 S. W. 988. "That point, however, in its precise relation to the track in feet, is seldom to be deter- mined as a matter of law; the under- lying test being: Was ordinary care used by the traveler in selecting the place in view of the conditions before him and the danger reasonably to be anticipated. It is only when ordi- narily prudent, impartial, and sensible men could reacli but one conclusion that the question becomes one of law. When different men equally possessing such qualities might draw different in- ferem^es from the facts as to the ex- istence of contributory negligence, then it is not a question of law." Pittsburgh, etc., R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609. 51. See Wingert v. Philadelphia, etc., Ry. Co., 262 Pa. 21, 104 Atl. 859; Jester v. Philadelphia, etc., R. Co. (Pa.), 109 Atl. 774; Luken v. Penn- sylvania R. Co. (Pa.), 110 Atl. 151. " If, from a place of safety on his way, the traveler in control of the vehicle in which he is riding can ob- tain a view of the coming train, he must look upon the course of the train from that point, and this responsi- bility is constant until the danger is past; that is, until he is safely across the railway track. The duty is con- stant because the danger is incessant. Instead of being intermittent, it grows as the traveler gets near the crossing, and reaches its climax only as he ac- tually crosses the track in his pas- sage." Robison v. Oregon-Washington R. & Nav. Co., 90 Oreg. 490, 176 Pac. 594. 52. Louisville, etc., R. Co. v. Schues- ter, 183 Ky. 504, 209 S. W. 542; 4 A. L. R. 1344. 53. Littlewood v. Detroit United Ry., 189 Mich. 388, 155 X. W. 698; Compare Canody v. Xorfolk. etc., Ry. Co. (Va.), 105 S. E. 585. Railroad Crossings. 699 And one stopping and listening- when twenty-one feet from the track may be justified in proceeding without again look- ing.^* But, when one could have seen the approaching train when comparatively near the track, he is guilty of contributory negligence when he looks only at a distance of a hundred yards therefrom/'""' , Sec. 559. Duty to look and listen — obstructed view. The presence of obstinictions along the railroad track which have the effect of interfering with a traveler's view, are material m considering whether he has fulfilled his duty of observing proper care.^^ The fact that the driver is aware of obstructions imposes on him care proportionate to the known danger.'"'" The greater the difficulty of seeing and hearing an approaching train as it nears a crossing, the greater caution the law imposes upon the traveler.^^ So long as buildings and other o})jects obstruct his Wew, a traveler is perhaps, excused from looking for approaching trains, for the law does not compel one to do the impossible. ^^ But, when the traveler reaches a point where his view is no longer obstructed, due care requires that at such place, or at some place nearer the track, he use his faculties to learn of the approach of trains.^^ Where the obstruction continues until 54. Advance Transfer Co. v. Chi- 57. Murray v. Southern Pac. R. Co. r.ipo. etc.. R. Co. (Mo. App.). 195 S. 177 Cal. 1, 169 Pac. 675; Sunnes v. \V. 566. Illinois Cent. R. Co., 201 111. App. 378; 55. Virginia & S'. W. Ry. Co. v. Piersall's Adm'r. v. Chesapeake & 0. Skinner, 119 Va. 843, 89 S. E. 887. Ry. Co. (Ky.), 203 8'. W. 551. One hundred fifteen feet. — One look- 58. Piersall's Adm'r v. Chesapeake ing at a distance of 115 feet from the & 0. Ry. Co., 180 Ky. 659, 203 S. W. track, does not nc<;essarily fulfill his 551; Perrin v. New Orleans Terminal duty. Sturgeon v. Minneapolis, etc., Co.. 140 La. 818, 74 So. 160; Blanch- Ry. Co. (Iowa). 1.74 N. W. 381. ard v. Maine Cent. R. Co. 116 Me. 170. 56. Cathcart v. Oregon-Wasliington 100 Atl. 666; ^fcKinney v. Port Town- Rd. & Navigation Co.. 86 Oreg. 250, send & P. S. Ry. Co.. 91 VVa-sh. 387. 158 168 Pac. 308; Texas & P. Ry. Co. v. Pac. 107. Eddleman (Tex. Civ. App.), 175 S. W. 59. See Ohio Electric Ry. Co. v. 775; Seaboard Air Line Ry. v. Aber- Weingertner, 93 Ohio St. 124. 112 X. nathy, 121 Va. 173. 92 S. E. 913. E. 203; Case v. Atlanta, etc.. Ry., 107 Smoke and dust. — May constitute an S. C. 216, 92 S. E. 472; Hxibenthal v. obstruction to the driver's view, and Spokane, etc., R. Co.. 97 Wa-^^h. 581, may have a bearing on hi»( negligence. liiO Pac. 797. Smith v. Missouri Pac. R. Co. (Ark.), 60. i'nifed States. — riuckey v. 211 S. W. 657. Southern Rv. Co.. 242 Fed. 469. 700 The Law of Automobiles. comparatively close to the track, the operator of the machine should have his car under such control and running at such speed so that, if he sees a train, he can stop his car in time to avoid a collision.^^ Where the track was obscured until he was within forty-three feet of the track, he was deemed guilt}^ of negligence in failing to look for an approaching train while passing over the interval of forty-three feet.®^ If the obstructions continue so close to the track that the trav- eler cannot look effectively until he is in a place where he will be struck by the train, reasonable care would seem to require that he stop his machine previously and listen,^^ Thus, if a Alabama. — Rothrock v, Alabama Great Southern R. Co., 78 So. 84. /otca.— Corbett v. Hines, 180 N. W. 690. Missouri. — Gersman v. Atchison, etc., R. Co., 229 S. W. 167; Alexander V. St. Louis, etc., Ry. Co., 233 S. W. 41 Pennsylvania. — Luken v. Pennsyl- vania R. Co., 110 Atl. 151. Virginia. — Canody v. Norfolk, etc., Ry. Co., 105 S. E. 585. 61. Fluckey v. Southern Ry. Co., 242 Fed. 469; Gersman v. Atchison, etc., R. Co. (Mo.), 229 S. W. 167; Spencer v. New York Cent., etc., R. Co., 123 N. Y. App. Div. 789, 108 N. Y. Suppl. 245, affirmed without opinion, 197 N. Y. 507; Washington & 0. D. Ry. v. Zell's Adm'x, 118 Va. 755, 88 S. E. 309; McKinney v. Port Townsend & P. S. Ry. Co., 91 Wash. 387, 158 Pae. 107. And see section 572. 62. Northern Pac. Ry. v. Tripp, 220 Fed. 286. And see Fluckey v. South- ern Ry. Co., 242 Fed. 469, wherein the court explained the situation as fol- lows: "When the automobile reached a point 40 feet from the rail, the buildings and the standing cars on the driver's left had so far ceased to ob- struct his view that he could see 120 feet along the straight track upon which the car was approaching, and at that moment the car was not more than 100 feet from the point of col lision. It was broad daylight, there was neither smoke nor dust to ob- scure the view, there was no other moving train to drown the noise of the approaching car, nor was there any- thing to distract the driver's atten- tion. It is not to be disputed that, if the driver had looked at the first in- stant when looking would do any good, he would have seen the car coming. He was familiar with the crossing, and knew that, by reason of the ob- structions, it was a dangerous crossing and must be approached cautiously. His clear duty was not only to look as soon as he could see, but to have his machine under such control that, if necessary, he could stop before getting into the danger zone. In this respect, the case is to be distinguished from that of one driving horses, where to undertake to stop so near the rail mav involve danger. 63. Chicago Great Western R. Co. v. Biwer, 266 Fed. 965; Rothrock v. Alabama Great Souttiern R. Co. (Ala.), 78 So. 84; Thompson v. Southern Pac. R. Co., 31 Cal. App. 567, 161 Pac. 21; Nailor v. Maryland, D. & V. Ry. Co., 6 Boyce's (29 Del.) 145, 97 Atl. 418; Wehe V. Atchison, etc., Ry. Co., 97 Kans. 794, 156 Pac. 742, L. R. A. 1916 E. 455; Turch v. New York, etc., R. Co., 108 N. Y. App. Div. 142, 95 N. Y. Nuppl. 1100; Washington & O. D. Ry. V. Zell's Adm'x, 118 Va. 755, 88 Kailroad Crossings. 701 passing train obstructs the view of the automobilist so as to render the crossing unsafe, it is his duty to delay the crossing until that train has passed so far that a sufficient view may be had.*^* Even the motor should be stopped, if necessary to make listening effective.^'' Or it may be that the circum- stances will require the automobilist to alight from his ma- chine before crossing the track.^c where the plaintiff ad- mitted that he knew of the crossing and that he ran his ma- chine at from eighteen to twenty miles an hour over a very rough road up to within fifty feet of the crossing, which was in plain view, by the side of a hedge which he could not see over, although he looked until he was satisfied that no train was coming, it was held that his evidence showed a want of ordinary care amounting to gross negligence which would prevent a recovery.^^ Sec. 560. Duty to look and listen — failure to observe ap- proaching train, though looking. When the driver of a motor vehicle is struck by a railroad train at a crossing, and the evidence shows that the train was plainly visible for a considerable distance from the crossing, the law places the driver in a dilemma. Either he looked or he did not look. If he did not look, the law may charge him with negligence as a matter of law for his failure in that re- spect.^* If he looked, he either saw the approaching train S. E. 309; Robison v. Oregon-Wash- of thirty miles an hour to Avithin sixty ington R. & Nav. Co. 90 Oreg. 400, 176 or ninety feet of the crossing when the Pac. 594. And see section 567. emergency brakes were applied, it was 64. Langley v. Hines (Mo. App.), held that the question of contributory 227 S. W. 877; Turch v. New York, negligence was for the jury. Stone v. etc., R. Co., 108 N. Y. App. Div. 142, Northern Pac. Ry. Co., 29 N. Dak. 480, 95 N. Y. Suppl. 1100. 151 N. W. 36. Question for jury.— Where, in an 65. Rayhill v. Southern Pac. Co.. action for injuries from a collision 35 Cal. App. 231, 169 Pac. 718. between an automobile and a train, 66. Murray v. Southern Pac. Ry. Co. there was evidence to the effect that 177 Cal. 1, 169 Pac. 675: Blanchard v. the traveler's view was obstructed by Maine Cent. R. Co. 116 Me. 179. 100 freight cars, and that a twenty-mile Atl. 666. per hour wind was blowing carrying 67. Sunnes v. Illinois Cent. R. Co.. the roar of the train away from the 201 111. App. 378. traveler, and the crossing was dusty, 68. Section 557. and the train was running at a speed 702 The Law of Automobiles. or he did not see it. If he saw it, he may be found gniilty of negligence in taking the chances of beating the train over the crossing.^^ If he claims that he looked and did not see the danger, even if the courts believe his statement, he may be charged with negligence in failing to see what was plainly visible."^^ A person before attempting to cross a railroad track, and when an approaching train is in full view, is chargeable with seeing what he could have seen if he had looked, and with hearing what he would have heard if he had listened. In other words, where he apparently looks and listens, but does not see or hear the approaching train, it will be presumed that he did not look or listen at all, or, if he did, that he did not heed what he saw or heard.'^ Thus, where one at a point five feet from the track has an unobstructed view over a straig-ht track for nine hundred feet, but he testifies that he did not see an approach- ing train which struck him before he passed the track, it was held that there was no evidence of freedom from contributory 69. Section 569. 70. California. — Jones v. Southern Pac. Co., 34 Cal. App. 629, 168 Pac. 586. Connecticut. — Lassen v. New York, etc., R. Co., 87 Conn. 705, 87 Atl. 734. louoa. — Anderson v. Dickinson, 174 N. W. 402; Waters v. Chicago, etc., R. Co., 178 N. W. 534; Swearington v. U. S. Railroad Administration, 183 N. W. 330. Kansas. — Prichard v. Atchison, T. & S. F. Ry. Co., 99 Kans. 600, 162 Pac. 315. Louisiana. — Perrin v. Xew Orleans Terminal Co., 140 La. 818, 74 So. 160. Massachusetts. — Fogg v. Xew York, etc., R. Co., 223 Mass. 444, 111 X. E. 960. New Hampshire. — Collins v. Ilustis, 111 Atl. 286. New Jersey. — Shoemaker v. Central Railroad of Xew Jersey, 89 Atl. 517. See also Barber v. McAdoo, 110 Atl. 119. Oregon. — Olds v. Hines, 95 Oreg. 580, 187 Pac. 586. Pennsylvania: — Sjnifch v. McAdoo, ■im Pa. 328, 109 Atl. 759. Texas. — Baker v. Collins (Civ. App.), 199 S. W. 519. Utah. — Lawrence v. Denver, etc., R. Co.. 52 Utah 414, 174 Pac. 817. Virginia. — Virginia & S. W. Ry. Co. V. Skinner, 119 Va. 843, 89 'S. E. 887. Disbelief of jury. — ^Where the jury finds that there is nothing to obstruct the view of a person approaching a railway crossing, nothing to prevent him seeing a train for a quarter of a mile or more, such finding in effect is an expression of the jury's disbelief of his evidence that he looked and listened and saw no train approaching. Buntoii v. Atchison, etc.. Ry. Co., 100 Kans. 16.5, 163 Pac. 801. 71. Anderson v. Great Xorthern Ry. Co. (Minn.) 179 X. W. 687; George v. Xorthern Pac. Ry. Co. (Mont.) 196 Par. -869: Olds v. Hines, 95 Oreg. 580, 1S7 Pac. 5S6; Louisiana Western Ry. Co. v. Jones (Tex. Civ. App.), 233 S'. W. 363; LaM-rence v. Denver, etc.. R. Co.. .52 Utah 414. 174 Pac. 817. Kailroad Crossings. 703 negligence sufficient to go to the jury on the issue.'- But, if the traveler's view is obstructed, the circumstancL's may be such that he can fairly claim that he exercised reasonable care and looked for approaching trains but did not see the one which struck him.'^s Qr, if traveling in the night time, a driver who is struck ])y a backing train or car, with no lights may be entitled to go to the jury on the question of his negH- gence."^* The courts are not always compelled to believe the testimony of a, person in a motor vehicle when he says that he looked for an approaching train and did not see one. The relative speeds of the machine and train and their respective distances from the crossing may show conclusively that the train was in plain sight when the machine was at a place where there was a duty to look for trains.'^ But, if there is any doubt as to whether or not the train was in sight when the traveler says that he looked and did not see it, the testi- mony will not be held to be incredible as a matter of law.*^^ 72. Virginia & S. W. Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887. 73. Ft. Smith, etc., E. Co. v. Pence, 122 Ark. 611, 182 S. W. 568; De Vriendt, Chicago, etc., R. Co. (Minn.), 175 N. W. 99; Smith v. Inland Em- pire R. Co. (Wash.). 195 Pac. 236. See also Golay v. Northern Pac. Ry. Co. (Wash.), 177 Pac. 804; Pogue v. Great Northern Ry. Co., 127 Minn. 79. 148 N. W. 889, wherein it Avas said : " It is contended that the evidence is con- clusive that plaintifT was guilty of contributory negligence. We cannot so hold. Plaintiff's view of the train was obscured by a long string of box cars on an intervening track. The distance between these standing cars and the passing train was less than 30 feet. Not until he passed these cars could he have a clear view of the approach- ing train. Plaintiff's testimony as given on this trial was to the effect that after passing these standing cars, he stopped his automobile and looked up and down the track, did not see jinything, and went ahead; that he did not discover the train until ' just like a flash of your eye it was right there. and then a blow.' It is conceded that, if this testimony is believable, plain- tiff was not guilty of contributory negligence. The evidence is conflicting as to just how dark it was. Plaintiff's witnesses testified that it was very dark. There is some evidence that the evening was cloudy and gloomy. The lights of the village were lighted. The lights on plaintiff's automobile were lighted. There is evidence that the trainmen were giving signals with lighted lanterns. The trainmen them- selves deny this, but it is admitted that they lighted their lanterns for this purpose at Solway, the station above. If it was as dark as plaintiff now claims, it is not unbelievable that he might look and still fail to see the approaching engine beyond the range of his own lights." 74. Louisville & N. R. Co. v. Eng- lish, 78 Fla. 211, 82 So. 819; Mills v. Waters. 198 Mich. 637. 165 N. W. 740; De Vriendt v. Chicago, etc., R. Co., 144 Minn. 467, 175 N. W. 99. 75. Coby V. Quincy, etc., R. Co.. 174 Mo. App. 648, 161 S. W. 290. 76. Loomis v. Brooklyn Heights R 704 The Law of Automobiles. Sec. 561. Duty to look and listen — looking by passenger. When an action is brought by a passenger to recover in- juries sustained in a collision at a grade crossing, the general rule is that the negligence of the driver is not imputed to the passenger. There are, however, various exceptions to the general rule, and in some States a passenger is required to exercise more or less diligence in looking for approaching trains independently of the duty cast upon the driver in that respect. The negligence of passengers, so far as it bars an action for their injuries, is discussed in another place in this work."^^ Where the employer of the driver is riding with him and has undertaken to look out for approaching trains, such situation is a circumstance to be considered in judging the driver's conduct on an issue of his negligence.'^^ An em- ployee riding with his employer, the latter driving the ma- chine, may be under the duty of looking for trains.'^^ Co., 133 N. Y. App. Div. 247, 117 N. Y. Suppl. 292. Not necessarily incredible. — Where in an action to recover for injuries re- ceived from a collision at a crossing' between defendant's train and an auto- mobile whicli plaintiff was driving, there is evidence that the train was running under full headway, and that although the view of the track was partly obstructed by a house and a sign, plaintiff looked south, the direc- tion from which the train came, until he passed the sign, when, his view be- ing entirely obstructed in that di- rection by a hedge, he looked north, and that he did not see the train until within eight feet of the track, it can- not be held as matter of law that plaintiff's testimony is incredible al- though at one point a view between the house and the sign could be had for 450 feet down the track and the train would have reached this point unless it were going at the rate of sixty miles an hour, which was thought impossible, as it had stopped at a station 1,000 feet south of the crossing. Where, in addition, it ap- pears that the train gave no signal of its approach to the crossing; that plaintiff listened all the time while nearing the track but heard nothing, a judgment entered on the dismissal of the complaint will be reversed, since the calculation on which it was based did not take into account the con- stantly increasing speed of the train, and there was no evidence that it was impossible for the train to attain a speed of sixty miles an hour within 500 feet. Loomis v. Brooklyn Heights R. Co.. 133 N. Y. App. Div. 247, 117 N. Y. Suppl. 292. 77. Sections 688-695. 78. Lehigh Valley R. Co. v. Kilmer, 231 Fed. 628, 145 C. C. A. 514. 79. Hoyle v. Northern Pac. R. Co., 105 Wash. 652, 178 Pac. 810. Railroad Crossings. 705 Sec. 562. Duty to look and listen — reliance on flagman. It is held that the fact that a railroad company maintains at a crossing a flagman to warn travelers of the approach of a train, does not necessarily justify the driver of a motor vehicle in relying on the flagman for information as to ap- proach of trains ; but, on the contrary, the driver is required to exercise his own faculties and to look and listen for ap- proaching trains.^^ Indeed the presence of the flagman ren- ders it possible for the traveler to call to him and ascertain whether the crossing is safe. In a close case, however, the fact that the traveler relied on the flagman for warning from trains, may be an important circumstance to be considered with the other circumstances surrounding the accident.^^ If the driver proceeds across the track on the signal of the flag- man, the courts will not condemn him of negligence as a mat- ter of law because he does not thereafter stop and look and listen for the approach of a train.^- Of course, the act of the flagman in giving a signal that the way is safe, may reasonably 80. Brommer v. Pennsylvania R. Co., 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924; Hajnes v. New York, etc.. R. Co. 91 Conn. 301, 99 Atl. 694; Reynolds v. Inter-Urban Ry, Co. (Iowa), 182 N. W. 804; Stephana V. Chicago, etc., R. Co. (Mo. App.), 199 S. W. 273. 81. Derr v. Chicago, M. & St. P. Ry. Co., 163 Wis. 234, 157 N. W. 753. See also. Brink v. Erie R. Co., 190 App. Div. 527, 180 N. Y. Suppl. 931. " It is further held that the presence or absence of signal warning or other precaiitionary measures usually ob- served by the company at a given crossing is always relevant and must be given due weight in deciding as to whether the traveler has been obser- vant of proper care before entering on the crossing and in failing to come to a complete stop." Shepard v. Norfolk, etc., R. Co., 166 N. Car. 539, 82 S. E. 872. "If the facts are that such a flagman customarily signaled to ap- proaching travelers to protect them 45 against existing dangers of approach- ing cars and trains and plaintiff knew this and relied on the absence of such signal when he approached the cross- ing as indicating that no car or train was approaching, then plaintiff's con- duct as to looking and listening for moving cars while approaching the crossing must be considered in the light of these circum=tnnces." Derr v. Chicago, etc., R. Co.. 163 Wis. 234, 157 N. W. 753. " While it is true that the failure of the flagman to perform his duty will not wholly absolve the traveler from the duty to look out, yet the fact that a flagman is maintained and he gives no warning has its in- fluence, and may frequently be allowed to relieve a traveler of what might otherwise have been culpable negli- gence." Stephan v. Chicago, etc.. R. Co. (Mo. App.), 199 S'. W. 273. 82. Deheave v, Hines, 217 111. App. 427; Lake Erie & W. R. Co. v. Sand- ers (Ind. App.), 125 N. E. 793. 706 The Law of Automobiles. dissuade the driver from making an independent lookout for trains, and his conduct in this respect is not necessarily negli- gent.^ But the fact that the flagman beckons him to pass over the crossing does not relieve the driver from the exercise of due care or necessarily excuse him from taking some precau- tions for his safety.^* ^\Tiere the flagman has his back to an approaching automobile and is waving a white flag as a signal for the train to come on, the driver of the machine is guilty of contributory negligence if he attempts to cross, and he can- not excuse his conduct by claiming that the waving of the flag was an assurance of safety rather than a warning of dan- ger.^^ Where the flagman ordered the driver to stop, then ordered him to go back, but then ordered him to proceed, but the driver seeing a train approaching jmiiped from the car which was destroyed, it was held that the driver's negligence was a question for the jury.^^ Sec. 563. Duty to look and listen — reliance on open gates. Where a grade crossing is equipped with gates which are lowered to bar the passage of travelers at times of danger, and the driver of an automobile does not attempt to cross the tracks until the gates are raised, he is not necessarily guilty of contributory negligence because he fails to look and listen before starting across the tracks.^"^ As has been said,®® 83. Deheave v. Hines. 217 111. App. conclusion. It is a matter of common 427; Stephan v. Chicago, etc., R. Co. knowledge that flagmen appointed to (Mo. App.), 199 S. W. 273. See also guard railway crossings do not stand Shepard v. Norfolk, etc., R. Co., Ififi in the traveled path waving flags ex- N. Car. 539, 82 S. E. 872. . cept when a train is approaching the 84. Haynes v. New York, etc., R. crossing. There was nothing in the Co., 91 Conn. 301, 99 Atl. 694. conduct of this flagman, who stood 85. Borglum v. New York, etc., R. with his back to the a/pproaching auto- Co., 90 Conn. 52. 96 Atl. 174, wherein mobile waving his flag across its line it was said: "It is claimed that the of travel, which would reasonably sug- jury might have found that the plain- gest to the plaintiff's decedent that he tiff's decedent was in the exercise of lyas inviting him to cross in front of due care on the theory that he had a the approaching train." right to interpret the flagman's pren- 86. Central of Ga. Ry. Co. v. How- ence in the highway, waving a white ell 23 Ga. App. 269, 98 S. E. 105. flag across the line of travel, as an as- 87. Delaware, L. & W. R. Co. V. surance of safety and an invitation to Welshman, 229 Fed. 82, 143 C. C. A. cross the track. We think the jury 358. See also Shepard v. Norfolk, etc., could not reasonably have come to that R. Co., 166 N, Car. 539, 82 S. E. 872; Railroad Crossings. 707 " We tbiiik the experience and judgment of every day life is that the raised gate is an index of the railroad's view that crossing may be safely made, and that a crosser may reason- ably accept it as an invitation to go forward." The fact that the gates are open, when the driver does not know that they are out of order, is some assurance of safety.^'' The fact that the gate is raised does not establish freedom from con- tributoi-y negligence, but permits the question to go to the jury who are to determine whether the traveler exercised proper care under the circumstances.^^ Though he may place Director-General v. Lucas (Va.)> 107 S. E. 675. Traveler struck by gate. — It is the duty of a railroad company to exercise reasonable care in the operation of safety gates so as to protect a traveler from the gates; and the jury may be authorized to find negligence on the part of the railroad when the gates are so operated that a traveler is struck thereby. S'gier v. Philadelphia, etc.. Ry. Co.. 260 Pa. 243. 103 Atl. 730; Sikorski v. Philadelphia, et-c., Ry. Co.. 260 Pa. 243, 103 Atl. 618. 88. Delaware, L. & W. R. Co. v. Welshman, 229 Fed. 82. 143 C. C. A. 358. 89. Hines v. Smith. 270 Fed. 132; vStepp V. Minneapolis, etc., R. Co., 137 Minn. 117. 162 N. W. 1051. 90. Blan chard v. Maine Central R. Co., 116 Me. 179, 100 Atl. 666. "Of course, the raising of the gates did not make the railroad either an insurer or the sole guardian of the crosser's safety. The duty of care, of the use by the crosser of sight, hearing, and such other factors of safety as the situation and circumstances permitted and required of one intent on his own safety, still rested on him. The raised gate is not an invitation to cross with- out care, but an invitation to cross with the use of all care the situation permits. To hold otherwise would be to make gates and flagman harmful creators of negligence instead of help- ful aids to safety. The crossing driver must bear in mind that the flagman is human and therefore liable to make mistakes, and that in so important a thing as his own safety and life the driver must not intrust them to any one man, but that common sense as well as common law require him, not- withstanding the invitation, to himself use all possible care to aid in a safe crossing. If the driver does not con- tribute such care, he contributes lack of care, and lack of care is contribu- tory negligence." Delaware, L. & W. f".. Co. V. Welshman, 229 Fed. 82, 143 r. C. A. 358. " The fact that the gat^s are open is an important fact for con- sideration in the determination of the question whether the deceased exer- "ised due care. The weight properly to III' given to this fact necessarily will vary in different cases and will be af- fected by consideration of the location of the ^t«s, whether on a street in a populous city or in the country, the presence or absence of traffic on the highway at the particular time and place, the presence or absence of ob- structions near the track, the presence or absence of a ^latoman, etc. If the facts are in controversy or if fair- min'led men ean draw different con- clusions from facts which are not i;on- troverted the question of contributory negligence would be then properly sub- mitted to a jury." Oeoffrey v. New York, etc., R. Co. (R. I.). 104 Atl. 88.3. 708 The Law of Automobiles. some reliance on tlie circumstances that the gates are open, he is not thereby relieved from the obligation of exercising all care for his safety.^^ And, in a particular case, the cir- cumstances may be such that the court is able to say as a matter of law that the driver was guilty of negligence, if he proceeded actoss the track without looking for trains, al- though the gates were open.^^ In Pen?isylvania, it is held that the fact that the safety gates are raised at the time the driver approaches, does not relieve him of the duty to stop, look and listen for approaching trains.^^ In at least one jurisdiction, it is i3rovided by statute that when the gates are not down, the question of contributory negligence shall be one for the jury; but it is held that this statute does not de- prive the court of the power to determine the question as one of law when the facts are undisputed.^'* Sec. 564. Duty to look and listen — reliance on automatic signals. It has been held to be contributory negligence as a matter of law for the driver of a mooter vehicle to attempt to cross a railroad crossing without looking and listening for ap- proaching trains, although an electric warning bell is main- tained at the crossing and such bell is not ringing at the time.^^ But, while a traveler cannot blindly rely on auto- 91. Blanchard v. Maine Central R. most can be nothing but a warning of Co., 116 Me. 179, 100 Atl. 666. an approaching train to those who 92. Geoffroy v. New York, etc., R listen, cannot be classed with a gate Co. (R. I.), 104 Atl. 883. thrown across a street to prevent pasa- 93. Earle v. Philadelphia & R. R, ing over railroad tracks; neither can Co., 248 Pa. St. 193, 93 Atl. 1001. it be classed with a flagman who 94. Hall V. West Jersey & Seashore stands in the street and stops those R. Co., 244 Fed. 104, construing a w^ho desire to cross when there is dan- statute of New Jersey. ger. It is more nearly analogous to 95. Jacobs v. Atchison, etc., Ry. Co., the locomotive beJl and whistle. Fail- 97 Kans. 247, 154 Pac. 1023, wherein ure to ring the engine bell or sound it was said: "In the present case an the whistle does not relieve the travel- electrical mechanical device was in- er from the duty to look and listen be- tended to give warning of approaching fore attempting to cross a railroad trains. Sometimes this bell would not track. If the plaintiff's contention in ring when trains were passing, and at this respect is correct, a railroad in- other times it rang when no train was creases its responsibility and liability in sight. An electric bell, which at by putting in electric bells at highway Railroad Crossings. 709 matic signals, the fact that the signal was not given accord- ing to the usual custom may be considered, and in a dose case •it may be sufficient to carry the traveler's contribntory iico]' gence to the jury.^® Sec. 565. Duty to look and listen — reliance on signal from engineer. In some States it is held that the driver of a vehicle when approaching a grade crossing cannot assume that the rail- road employees will ring the bell and blow the whistle as re- quired by law and thus give him warning of the approach of the train. The law requires the traveler to look and listen for cars approaching on the railroad tracks, and his neglect of duty in this respect is not excused by the failure of the railroad employees to fulfill their duty in respect to warn- ings. The absence of proper warning will not carry the ques- tion of contributory negligence to the jnry, but the matter will be disposed of as a question of law.^" In other decisions and street crossings. The object in putting in electric bells is to promote public safety, not to increase railroad liability. Silence of such a bell is not an invitation to cross railroad tracks without taking the ordinary pre- cautions. . . . We think the better rule is that the failure of an electric bell to ring does not relieve one about to cross a railroad track of the impera- tive duty to look and listen before crossing; if he fails to do so, he is guilty of such contributory negligence as will prevent his recovery for any injuries sustained, and there is noth- ing to submit to the jury." See, to the same eflfect, McSweeny v. Erie Rail- road Co., 93 N. Y. App. Div. 496, 87 N. Y. Suppl. 836, making the same ruling with reference to a buggy cross- ing a railroad track. Statutes may make a different rule in some jurisdictions. Baer v. Lehigh, etc., E. Co., 93 N. J. L. 85. 106 Ail. 421. 96. Birmingham So. Ry. Co. v. Har- rison. 203 Ala. 284. 82 So. 534; Bush V. Brewer, 136 Ark. 248, 206 S. VV. 322; Swigart v. Lush, 196 Mo. App. 471, 192 S. W. 138; Director-General V. Lucas (Va.), 107 S. E. 675. 97. Hines v. Smith, 270 Fed. 132; Swearingen v. U. S. Railroad Adminis- tration (Iowa), 183 N. W. 330; Jacobs V. Atchison, etc., Ry. Co.. 97 Kans. 247, 154 Pac. 1023; Fogg v. New York, etc., R. Co., 223 Mass. 444, 111 N. E. 960; Central Coal & Coke Co. v. Kansas City So. Ry. Co. (Mo. App.). 215 S. W. 94; Gersman v. Atchison R. Co. (Mo.), 229 S. W. 167: Loiselle v. Rhode Island Co. (R. I.), 110 Atl. 407. See also Robison v. Oregon- Washington R. & Nav. Co. 90 Oreg. 490, 176 Pac. 594. " Coming to a place of danger like a railroad crossing, where there is opportunity for sight and hearing, a traveler is not in the exercise of due care unless he uses his senses, looks and listens, and governs his conduct accordingly. He cannot, entirely, rely upon signals and the per- formance of duty by the agents of the defendant. He must actively seek to 710 The Law of Automobiles. the rule obtains, that, if the view is obstructed, the traveler may ordinarily rely upon his sense of hearing, and if he listens and is. induced to enter on the crossing because of the negligent failure of the company to give the ordinaiy signals this will usually be attributed to the failure of the company to warn the traveler of the danger, and not imputed to him for contributory negligence.^** It has been said that these cases may be harmonized so that the rule may be deduced to tlie effect that the traveler may, in regulating his conduct, have some regard to the presumption that the railroad will give proper signals, and, if he hears none, the same prepared- ness and caution will not be expected of him as would be re- quired in case proper signals were given; but that he cannot wholly omit the duty of looking and listening simply because he hears none of the customary or required signals of the approach of a train.®® safegxiard his own safety by using his faculties, and making use of the means at hand to save himself from danger." Fogg V. New York. etc.. R. Co.. 223 Ma.ss. 444, 111 N. E. 960. 98. Smith v. Missouri Pac. R. Co., 138 Ark. 589, 211 S. W. 657; Union Tract. Co. v. McTurnan (Ind. App.). 129 N. E. 404; Barrett v. Chicago, etc.. R. Co. (Iowa), 175 N. W. 950; Slipp V. St. Louis, etc., Ry. Co. (Mo. App.), 211 S. W. 730; Brown & Co. v. Atlan- tic Coast Line R. Co., 171 N. C. 266, 88 S. E. 329; GoflF v. Atlantic Coast Line R. Co., 179 N. Car. 216, 102 S. E. 320; Costin v. Tidewater Power Co. (N. Car.). 106 S. E. 568; Parker v. Seaboard Air Line Co. (N. C), 106 S. E. 755. See also Union Traction Co. V. Elmore. 66 Ind. App. 95, 116 S. E. 837; Waking v. Cincinnati etc., R. Co. (Ind. App.), 125 N. E. 799. "We believe that the driver did all that was required of him whwi he stopped, looked, and listened for trains. At least we cannot say as a matter of law that he was required to do more. As it has already been stated, when the driver stopped, looked and listened, his truck was 21 ftet inches from tlie west rail of the track, and his view of the track to the soutli was obstructed. Not having hoard any signal, the driver had the right to- presume that in handling itvS cars the railroad company would act witli appropriate care, and that the usual signals of approach would be seasonably given, and he was justified in proceeding to cross the track with- out again looking." Advance Trans- fer Co. V. Chicago, etc., R. Co. (Mo. App.), 195 S\ W. 566. "Reasonable minds might, we think, have differed as to whether a reasonably prudent person, having the right to expect that the bell of the engine would be ringing if it was moving, would have con- cluded, when he saw and heard noth- ing indicating that it was moving, that the engine was standing still, and that he could safely pass." Texark- ana & Ft. Smith Ry. Co. v. Rea (Tex. Civ. App.), 180 S. W. 945. 99. PogTie V. Great NortJiern Ry. Co.. 127 Minn. 79, 148 N. W. 889, wherein it was said: "There are cases which hold that a person cannot rely upon signals to remind him of danger, that the failure of the traveler Railroad Crossings. 711 Sec. 566. Duty to look and listen — running into train. When the driver of a motor vehicle runs his machine into a train or a car at a crossing, the courts have no difficulty in finding, as a matter of law, that the accident would have been avoided had he exercised reasonable care.^ A recovery may be justified, however, if a car is permitted to stand at a cross- ing with no lights or attending watchman. - Sec. 567. Duty to stop before crossing track — majority rule. While, in a few jurisdictions, it is held that there is a posi- tive duty on the driver of an automobile to stop the machine before crossing a railroad track,^ the rule adopted in the larger nmnber of jurisdictions is that there is no such im- perative duty.'^ The question whether the operator of the to look and listen is negligence or not, according to the circumstances, but that the neg'ligence of the employees of a railroad company in failing to whistle or ring a bell is no excuse for negligence on the part of the person about to cross in failing to use his senses to discover danger. ... On the other hand, numerous cases hold that when a traveler is approaching a rail- road track, he may, in regulating his own conduct, have a right to presume that the railroad company will act with proper care in giving signals of the approach of its trains. . . . We think these cases may be harmonized, and that the rule deduciblc from them is that the traveler may, in regulating his conduct, have some regard to the presumption that the railroad com- pany will give proper signals, and, if he hears none, the same preparedness and caution Avill not be expected of him as would be required in case proper signals were given; but he can- not in any case wholly omit the duty of looking and listening simply because he hears none of the customary or re- quired signals of the approach of a train. ... In other words, the failure of the defendant to give expected sig- nals may excuse a traveler in relaxing somewhat in his vigilance, but it has never been held to dispense with vigil- ance altogether. If such were the law, then there would be little left of the rule which requires the traveler to look and listen, for the rule is only ap- plied as bearing upon the question of his contributory negligence, and that question is never reached unless there is some negligent act or omission in the operation of the train. See also, Saiidry v. Hines (Mo. App.). 226 S. W. ()4fi. 1. n. Worth, et«., R. Co. v. Hart (Tex. Civ. App.), 178 S. W. 795 South- ern Tr. Co. V. Kicksey (Tex. Civ. App.). 181 S. W. 545. 2. Prescott v. Hines (S. Car.). 103 S. K. 543. 3. Section 568. 4. United States. — Hines v. Hoover, 271 Fed. 645. Arizona. — I>avis v. Boggs. 199 Pac. 116. Arkansas. — St. Louis-San Francisco Ry. Co, V. Stewart, 137 Ark. 6, 207 S. W. 440; Hines v. Gunnells. 222 S. W. 10. Idaho. — Graves v. Nofthern Pac. Ry. Co., 30 Idaho, 542, 166 Pac. 571. Indiana. — Pittsburgh, etc., R. Co. v. Dove, 184 Ind. 447, 111 N. E. 609; 712 The Law of Automobiles. macliine is guilty of negligence under the circumstances is for tile jury.^ Of course, the traveler must look for approach- Central Indiana Ry. Co. v. Wishard, 186 Ind. 262, 114 N. E. 970; Cleveland, etc., R. Co. V. Baker (Ind.), 128 N. E. 836. Kansas. — Jacobs v. Atchison, etc., Ry. Co., 97 Kans. 247, 154 Pac. 1023; Bunton v. Atchison, etc., Ry. Co., lOOl Kans. 165, 163 Pac. 801. Kentucky. — Louisville & I. R. Co. v. Morgan, 174 Ky. 633, 192 S. W. 672; Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634; Louisville, etc., R. Co. v. Clore, 183 Ky. 261, 209 S. W. 55; Louisville & N. R. Co. V. Scott, 184 Ky. 319, 211 S. W. 747. Michigan. — Rouse v. Blair, 185 Mich. 632, 152 N. W. 204. See also Nichols V. Grand Trunk Western Ry. Co., 203 Mich. 372, 168 N. W. 1046; Deland v. Michigan Ry. Co. (Mich.), 180 N. W. 389. Minnesota. — Laurisch v. Minneap- olis, St. P., R. & D. Electric Traction Co., 132 Minn. 114, 155 N. W. 1074. Missouri. — Monroe v. Chicago, etc., R. Co., 219 S. W. 68; Slipp v. St. Louis, etc., Ry. Co. (Mo. App.), 211 S. W. 730. Montana. — Walters v. Chicago, etc., R. Co., 47 Mont. 501, 133 Pac. 357, 46 L. R. A. (N. S.) 702. New Jersey. — Dickinson v. Erie R. Co., 81 N. J. L. 464. 81 Atl. 104; Wil- son v. Central Railroad of N. J., 88 N. J. L. 342, 96 Atl. 79. New York. — Brooks v. Erie R. Co., 177 App. Div. 290, 164 N. Y. Suppl. 104; Brink v. Erie R. Co.. 190 App. Div. 527, 180 N. Y. Suppl. 931. North Carolina. — Shepard v. Nor- folk, etc., R. Co., 166 N. Car. 539, 82 S. E. 872; Hunt v. North Carolina R. Co., 170 N. Car. 442, 87 S. E. 210; Brown v. R. R., 171 N. C. 269. 88 S. E. 329; Perry v. McAdoo, 104 S. E. 673. North Dakota. — ^Pendroy v. Great Northern Ry. Co., 17 N. D. 433, 117 X. W. 531. Orcfjon. — Cathcart v. Oregon-Wash- ington Rd. & Navigation Co., 86 Greg. 250, 168 Pac. 308; Robison v. Oregon- Washington R. & Nav. Co., 90 Greg. 490, 176 Pac. 594. " While failure to stop may be considered on the subject of contributory negligence with other evidence, it is not necessarily controll- ing in the matter. If, by the use of his faculties of hearing and seeing, one approaching a crossing can safely de- termine whether there is danger or not, stopping would not essentially add to or detract from his diligence. Stop- ping is necessary only when continued advancing would materially affect his senses of seeing or hearing." Cathcart V. Oregon- Washington Rd. & Navi- gation Co., 86 Greg. 250, 168 Pac. 308. Tennessee. — Hurt v. Yazoo, etc., R. Co., 140 Tenn. 623. 205 S. W. 437; Hines v. Partridge, 231 S. W. 16. Texas. — Texas & Pac. R. Co. v. Hil- gartner (Civ. App.), 149 S. W. 1091; Chicago, etc., Ry. Co. v. Zumwalt. (Civ. App.), 226 S. W. 1080. Virginia. — Seaboard Air Line Ry. v. .\bernathy, 121 Va. 173. 92 S. E. 913. Washington. — McKinney v. Port Townsend & P. S. Ry. Co., 91 Wash. 387, 158 Pac. 107; Hines v. Chicago, etc., Ry. Co., 177 Pac. 795; Kent v. Walla Walla Valley Ry. Co., 108 Wash. 251, 183 Pac. 87. 5. St. Louis-San Francisco Ry. Co. V. Stewart, 137 Ark. 6, 207 S. W. 440; Hawkins v. Interurban Ry. Co., 184 Iowa 232, 168 N. W. 234; Louisville & N. R. Co. V. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634; Monroe v. Chicago, etc.. R. Co. (Mo.), 219 S. W. 68, (citing Huddy on Automobiles). Wal- ters V. Chicago, etc., R. Co., 47 Mont. 501, 133 Pac. 357, 46 L. R. A. (N. S.) 702; Dickinson v. Erie R. Co., 81 N. J. L. 464, 81 Atl. 104; Brooks v. Erie Railroad Crossings. 713 ing trains,*^ and he must take all other reasonable precau- tions for his safety.' And, though it is not negligence per se to fail to stop before crossing the track, the jury may in a particular case properly find that he was guilty of negligence in driving on the track without stopping.^ Moreover, the facts may be such in particular cases that the court can say that the driver was guilty of negligence as a matter of law in failing to stop under the circumstances.^ Thus, where ob- structions continue close to the track so that a view cannot be had of approaching trains until the diiver of the machine R. Co., 177 N. Y. App. Div. 290 164 N. Y. Suppl. 104; Shepard v. Norfolk, etc., R. Co., 166 N. Car. 539, 82 S. E. 872; Kent v. Walla Walla Valley Ry. Co., 108 Wash. 251, 183 Pac. 87. 6. Section 557. 7. Louisville k N. R. Co. v. Trean- or's Adm'r, 179 Ky. 337, 200 S. W. 634; St. Louis Southwestern Ry. Co V. Harrell (Tex. Civ. App.). 194 S. W. 971. "Now Avhen a travelei- has exer- cised such care as a person of ordinary prudence would exercise, considering all the surrounding conditions, to learn of the approach of trains and keep out of their way, this measure of care is, we think, sufficient to meet all reasonable requirements. It is true this rule does not prescribe any specific thing the traveler must do, but it puts on him the duty of doing everything that a person of ordinary prudence would think it necessary to do for his own safety. This is the usual and gen- erally approved standard of care that the common sense law demands that men shall observe when they are un- der a duty to exercise care in the regu- lation of their own conduct, and is as great as the average person should be expected to observe. Louisville & N. R. Co. V. Treanor's Adm'r, 179 Ky. 337, 200 S. W. 634. 8. Central Indiana Ry. Co. v. Wis- hard. 186 Ind. 262, 114 N. E. 970; Union Traction Co. v. Elmore, 66 Ind. App. 95, 116 N. E. 837; Kimbrough v. Hines (N. Car.), 104 S. E. 684. Inability to stop. — ^Evidence that the >irivor applied the brakes, but they failed to stop the car, may carry the (^ase to the jury. Norfolk & W. Ry. Co. v. Simmons (Va.), 103 S. E. 609; Puhr V. Chicago, etc., R. Co. (Wis.), 176 N. W. 767. 9. Waking v. Cincinnati, etc., R. Co. (Ind. App.), 125 N. E. 799; Keith v. Great Northern Ry. Co. (Mont.), 199 Pac. 718; Cline v. McAdoo (W. Va.), 102 S. E. 218. "The duty to keep a sharp look- out for trains at a public crossing has often been expounded by this court. A railroad crossing is itself a danger signal. One who proposes to cross a railroad must look and listen. It is not required, in this State, that a per- son must necessarily stop, in order to look and listen, unless the surround- ings and circumstances demand that unusual prudence. If the circumstances do demand such prudence, then there is a duty to stop, look and listen." Bunton v. Atchison, etc., Ry. Co., 100 Kans. 165, 163 Prac. 801. Place of stopping. — Though the driver is required by the surrounding circumstances to stop, in selecting the stopping place, he is not required to exercise more than the ordinary care that a reasonably prudent man would exercise for his own protection under the circumstances. Pittsburgh, etc., R. Co. V. Dove. 184 Ind. 447. Ill N. E. 609. 714 The Law of Automobiles. is in a position of clanger, it may be his absolute duty to stop his ear and listen for approaching trains.^^^ Or, if he sees an approaching train as he nears the track, it may be negli- gence as a matter of law for him to attempt to pass ahead of the train.i^ And, if the nmning of the automobile inter- feres with his hearing or looking, it is his duty to stop and look and listen so as to make looking and listening effective.^" Sec. 568. Duty to stop before crossing track — minority rule. In a few juiisdictions, a positive duty is imposed on the driver of a motor vehicle to stop before passing over a grade crossing of a raikoad, and a failure to observe this precau- tion renders the driver gniilty of negligence as a matter of law.^^ Indeed, mider some circumstances of obstructed view, 10. Wehe v. Atchison, etc., Ry. Co., 97 Kans. 794, 156 Pac. 742, L. R. A. 1916 E. 455; Acker v. Union Pac. R. Co., 106 Kans. 401, 188 Pac. 419; Rule V. Atc-hison Ry. Co., 107 Kans. 479, 192 Pac. 729; Sanford v. Grand Trunk- Western Ry. Co.. 190 Mich. 390, 157 N. W. 38; Woodard v. Bush (Mo.), 220 S. W. 839 (discussing the rule in Kansas) ; Gersman v. Atchison, etc., R. Co. (Mo.), 229 S. W. 167 (discuss- ing the rule in Kansas) ; Bonert v. Long Island R. Co., 145 N. Y. App. Div. 552, 130 N. Y. Suppl. 271. And see section 559. 11. Corley v. Atchison, etc., Ry. Co., 90 Kans. 70, 133 Pac. 555; McKinney V. Port Townsend & P. S. Ry. Co., 91 Wash. 387, 158 Pac. 107. And see sec- tion 569. 12. Washington & O. D. Ry. v. Zell's Adm'x, 118 Va. 7.55. 88 S. E. 309. 13. United States. — New York Cent. & H. R. R. Co. V. Maidment. 168 Fed. 21, 93 C. C. A. 415, 21 L. R. A. (N. S.) 924; Brommcr v. Pennsylvania R. Co., 179 Fed. 577. 103 C. C. A. 135. 29 L. R. A. (N. S.) 924. Compare, Lake Erie & W. R. Co. v. Schneider. 257 Fed. 675; Hines v. Hoover, 271 Fed. 645. Alabama. — Bailev v. Soxithern Rv. Co.. 196 Ala. 133, 72 So. 67; Fayet v. St. Louis P. S. F. R. Co., 203 Ala. 3, 81 So. 671 ; Central of Georgia Ry. Co. V. Faust (Ala. App.), 82 So. 36; Hines v. Cooper, 86 S'o. 396; Hurt v. South- em Ry. Co., 87 So. 533; Hines v. Cooper, 88 So. 133. California. — GriflBn v. San Pedro, etc., R. Co., 170 Cal. 772, 151 Pac. 282, L. R. A. 1916 A. 842; Thompson v. Southern Pac. R. Co., 31 Cal. App. 567, 161 Pac. 21; Walker v. Southern Pac. Co., 38 Cal. App. 377, 176 Pac. 175. " It is true, as declared in the opin- ions, that the rule requiring the traveler to stop is not an absolute one. If the view is entirely unobstructed, the traveler, while going toward a crossing, may see whether a train is approaching in dangerous proximity. Of course, in a case like that it would be idle to require the traveler to stop to find out something that he can as- certain just as well without stopping. He must, however, avail himself of the vision, and if he is exercising ordinary care, he need not stop except to allow an approaching train to pass so as to avoid a collision. But where the view is obstructed, he must place himself in a position where he can use his facul- ties of observation to advantage. In Railroad Crossings. 715 the driver sliould alight or stop the motor of his vehicle iu order that listening may be effective." The existence of ob- structions to the driver's view emphasizes his duty to observe the rule.^'' His duty is to '' stop, look and listen " for the Huch case he stops — not primarily to avoid a collision — but to ascertain whether a collision is threatened. Whereas, if the view is unobstructed, if he stops, it is to allow the approach- ing train to pass." Thompson v. Southern Puc. R. Co., 31 Cal. App. 567, 161 Pac. 21. Louisiana. — Callery v. Morgan's Louisiana, etc., S. S. Co.. 139 La. 763, 72 So. 222; Perrin v. New Orleans Jer- minal Co.. 140 La. 818, 74 So. 160. Massachusetts. — Chase v. New Cent. R. Co., 208 Mass. 137, 94 N. E. 377. See also Fogg v. New York, etc., R. Co., 223 Mass. 444, 111 N. E. 960 Pennsylvania. — Craig v. Pennsyl- vania R. Co., 243 Pa. St. 455, 90 Atl. 135; Senft v. Western Md. Ry. Co.. 246 Pa. St. 446, 02 Atl. 553; Barle v. Philadelphia & R. R. Co.. 248 Pa. St. 193, 93 Atl. 1001; Peoples v, Pennsyl- vania R. Co., 251 Pa. St. 275, 96 Atl. 652; Hamilton v. Philadelphia. B. & W. R. Co., 252 Pa. St. 615, 97 Atl. 850; KJnepp v. Baltimore, etc., R. Co.. 262 Pa. 421, 105 Atl. 636; Martin v. Pennsylvania R. Co., 265 Pa. St. 282, 108 Atl. 631: 'Hiompson v. Philadel- phia & R. Ry. Co., 263 Pa. St. 569, 107 Atl. 330; Gordon v. Director-Cen- eral, 112 Atl. 68; Serfs v. Lehigh, etc., R. Co.. 113 Atl. 370; Sefton v. Balti- more & Ohio R. Co.. 64 Pa. Super. Ct. 218. Darkness. — " The duty to stop is ■nbeiiding, and darkness is no excuse for failure to perform it." Eline v. Western Maryland R. Co.. 262 Pa. 33. 104 Atl. 85T. See also, Serfas v. I^- bigh, etc.. R. Co. (Pa.), 113 Atl. 370. Unknown crossing. — The obligation of a driver when passing over a cross- ing which is unknown to him. is not so strict, and a question may be left with the jury as to his care in discov- ering the danger of the passage. Mc- (liiri- V. Suuthern Pac. Co. (Cal. App.), 183 Pac. 248; Wanner v. Philadelphia, vU:. Ry. Co. (Pa.), 104 Atl. 570. See also Whitney v. Northwestern Pac. R. Co.. :19 Cal. App. 139. 178 Pac. 326. Railroad siding, — The duty of stop- ping is applied to one crossing a sid- ing as well as to one crossing a main linf. Peoples v. Penubylvania R. Co., 251 P:.. St. 275, 96 Atl. 652, wherein it was said : " We know of no case in which a distinction has been made be- tween the degree of care required of a person driving along a highway at a pul)lif crossing over the main tracks of a railroad and that which is re- quired at a public crossing over a rail- road siding. No good reason for any 8uch distinction is apparent, especially where, as here, the siding was in fre- quent and at least daily use by the railroad company. It appears from the testimony that plaintiff lived near the crossing, was familiar with the locality, had used the crossing at in- t<^rvals during a period of four years, and knew that the siding was used by the railroad company at least once each day. It is hardly necessary to say that there has been, in this State, no relaxation of the rule making it the iluty of a traveler on a public high- way, as he approaches a railroad cross- ing, to stop, look and listen.'" See also, Serfas v. Lehigh, etc.. \l. Co. (Pa.). 113 Atl. 370. 14, Murray v. Southern Pac. R. Co.. 177 Cal. 1. 169 Pac. 675: Rayhill v. Southern Pac. Co.. 35 Cal. App. 231, 169 Pac. 718; Knepp v. Baltimore, etc.. R. Co., 262 Pa. 421. 105 Atl. 636. 15, Hincp v. Cooper (Ala.). S6 So. 396. 716 Thk Law of Automobiles. approach of trains, and lie should stop at a place where his conduct will be effective in discovering whether a train is approaching.^^ His stopping place should be sufficiently close to the railroad to enable him to look up and down the track and to see or hear any approaching train,^'^ and should not be so close that a slight unexpected movement of the ma- chine will cause it to enter a place of danger.^^ But the fact that there was a better stopping place whioli the traveler dis- regarded is not conclusive on the question of his negligence.^^ Unless it affirmatively appears that the stopping place he used was an improper one, the question is for the jury. If there is any doubt as tO' the stopping place being a proper one, the court cannot decide the question as a matter of law, although it may be that there is a place nearer the track where a better view could be liad.-^ If the driver stops at the place where people usually do so, it may be sufficient to exonerate him from a charge of negligence.^^ And, if the traveler has stopped to look and listen for trains, but is nevertheless struck when he continues his journey, he is not necessarily guilty of contributory negligence. If he failed to see the 16. New York Cent. & H. R. R. Co. view for four hundred and eighty feet. V. Maidment, 168 Fed. 21, 93 C. C. A. Sefton v. Baltimore & Ohio R. Co., 64 415, 21 L. R. A. (N. S.) 924; Brom- • Pa. Super. Ct. 218. mer v. Pennsylvania R. Co., 179 Fed. 17. Perrin v. New Orleans Terminal 577, 103 C. C. A. 135, 29 L. R. A. (N. f o.. 140 La. 818, 74 So. 160. S.) 924; Delaware, L. & W. R. Co. v. 18. Gordon v. Director-General Welshman, 229 Fed. 82. 143 C. C. A. (Pa.), 112 Atl. 68. 358; Fayet v. St. Louis P. S. F. R. Co., 19. Allogi v. Southern Pac. Co., 37 203 Ala. 3, 81 So. 671; Hines v. Cal. App. 72, 173 Pac. 1117; Bush v. Cooper (Ala.), 88 So. 133; Knepp v. Philadelphia, etc., Ry. Co., 232 Pa. St. Baltimore, etc.. R. Co. (Pa.), 105 Atl. 327, 81 Atl. 409; Hamilton v. Phil- 636; Thompson v. Philadelphia & R. adelphia, B. & W. R. Co., 252 Pa. 615, Ry. Co.. 263 Pa. St. 569. 107 Atl. 330. 97 Atl. 850. On tr&ck. — Stopping on the track is 20. Walker v. Southern Pac. Co., 38 not a compliance with the rule. Ser- Cal. App. 377, 176 Pac. 175; Bush v. fas V. Lehigh, etc., R. Co. (Pa.), 113 Philadelphia, etc., Ry. Co.. 232 Pa. St, Atl. 370. 327, 81 Atl. 409; Hamilton v. Phil- Forty-five feet from track.— The adelphia, B. & W. R. Co., 252 Pa. St. driver of a motor vehicle was held 615, 97 Atl. 850; Wingert v. Philadel- guilty of contributory negligence phia, etc., Ry. Co., 262 Pa. 21, 104 Atl. where he stopped forty-five feet from 8.59; Jester v. Philadelphia, etc., R. Co. the track and looked, hut did not stop (Pa.), 109 Atl. 774. again, although just before going on 21. Knepp v. Baltimore, etc., R. Co., the track he had an unobstructed 262 Pa. 421, 105 Atl. 636. Railroad Crossings. 717 train by which he was stiiick, whether he exercised due cau tion in proceeding may be a question for the jury.-- Sec. 569. Crossing in front of observed train. When one about to pass over a railroad crossing sees a train approaching, as a general proposition, it is his duty to stop his machine and permit the train to pass.-" The law does not permit him to indulge in a race with the train and then recover if he misjudged the speed of the train. The traveler cannot assume that the train will not move over the crossing at a rate faster than that allowed by statute or 22. Firth v. Southern Pac. Co. (Cal. App.), 186 Pac. 815; Witmer v. Besse- mer, etc., R. Co., 241 Pa. St. 112, 88 Atl. 314; Clinger v. Payne (Pa.), 113 Atl. 830; Rice v. Erie R. Co. (Pa.), 114 Atl. 640. Whether a driver stopped a suffi- cient length of time and whether he exercised due caution before going on a railroad track are questions for the jury. Rush v. Philadelphia & R. Ry. Co., 232 Pa. St. 327, 81 Atl. 409. 23. Alabama. — Hurt v. Southern Ry. Co.. 87 So. 533. California. — Jones v. Southern Pao.. Co., 34 Cal. App. 629, 168 Pac. 586. Connecticut. — Lessen v. New York, etc., R. Co., 87 Conn. 705, 87 Atl. 734. Iowa. — ^Sohl V. Chicago, etc.. Ry. Co., 183 Iowa 472, 167 N. W. 529; Corbctt V. Hines. 180 N. W. 690. Kansas. — Corley v. Atchison, etc., Ry. Co., 90 Kans. 70, 133 Pac. 555; Pritchard v. Atchison, T. & S. F. Ry. Co., 99 Kans. 600, 162 Pac. 315; Kirk- land V. Atchison, etc.. Ry. Co., 179 Pac. .362. Maine. — Thompson v. Lewiston, etc., St. Ry., 115 Me. 560, 99 Atl. 370. Massachusetts. — Fogg v. New York, etc., R. Co.. 223 Mass. 444. Ill N. E. 960. Minnesota. — Wesler v. Chicago, etc., R. Co., 143 Minn. 159, 173 N. W. 563; Anderson v. Great Northern Ry. Co., 179 N. W. 687. Missouri. — Coby v. Quincy, etc., R. Co., 174 Mo. App. 648, 161 S. W. 290. T^ebraska. — Rickert v. Union Pac. R. Co., 100 Neb. 304, 160 N. VV. 86. "A traveler on the l\ighway who, being aware of an approaching train at a railroad crossing, attempts to beat the train over the crossing, must suffer the consequences of his own experiment." Rickert v. Union Pac. R. Co., 100 Neb. 304, 160 N. W. 86. New Hatp.pshire. — ^Collins v. Hustis, 111 Atl. 286. New York. — Turch v. New York, etc.. R. Co., 108 N. Y. App. Div. 142, 95 N. Y. Suppl. 1100. Rhode Island. — Fillmore v. Rhode Island Co., 105 Atl. 564. Sotith Carolina. — Gibson v. Atlantic Coast Line R. Co., 170 S. Car. 331, 96 S. E. 519. Texas. — Baker v. Collins (Civ. App.), 199 S. W. 519. Compare, St. Louis, etc., Ry. Co. v. Morgan (Civ. App.), 220 S. W. 281. Washington. — McKinney v. Port Townsend & P. S. Ry. Co.. 91" Wash. 387. 158 Pac. 107. Wisconsin. — Puhr v. Chicago, etc.. R. Co., 176 N. W. 767. Presumption. — In an action for the death of a driver of an automobile at a railroad crossing, there is no pre- sumption that the decedent was guilty of negligence in attempting to make the crossing ahead of the train. Gal- veston, etc., R. Co. v. Sloman (Tex. Civ, App.), 195 S. W. 321. 718 The Law of Automobiles. municipal ordinance, and calculate that he can pass if the train does not exceed such limit, and then blindly go ahead without determining the true rate of speed.-* There may be cases where the approaching train is so far distant that one in the exercise of reasonable care may be justified in attempt- ing to cross without waiting. But, he may be charged with contributory negligence as a matter of law in attempting to cross, though he would have made the passage in safety had he not struck a depression between the rails wliich caused the engine to stop.^^"' Contributoiy negligence will not be charged as a matter of law against an automobilist who does not stop as a protection from a train standing still with the rear car near the highway, though it happens that a collision ensues from the sudden starting of the train.^^ 24. Coby V. Quincy, etc., R. Co.. 174 Mo. App. 648, 161 s". W. 290. "While a railway company may not operate its train.? over highway crossings at such a speed as, in view of local con- ditions, will endanger the lives of those prudently making use of these, a traveler is not permitted to make nice calculations as to whether he will be able to pass over in front of a rapidly approaching train in safety. The lat- ter is under the same duty of exer- cising ordinary care to avoid a col- . lision as is the company. The degree of care to be observed by each is to be measured by the threatened danger, and the traveler is no more excusable for risking himself before an oncoming train than the company is in running him down when it knows long enough beforehand to enable it to avoid the collision that he cannot or will not get out of its way." Sohl v. Chicago, etc., Ry. Co., 183 Iowa 616, 167 N. W. 529. 25. Bunton v. Atchison, etc., Ry. Co., 100 Kans. 16.5, 163 Pac. 801. 26. DeHardt v. Atchison R. & S. F. Ry. Co., 100 Kans. 24, 163 Pac. 650, wherein it was said: ". . . Where one end of a string of ears is stand- ing still near a crossing, an engine being at the other end, ordinary pni- dence does not require a traveler to stop and look up the track before at- tempting to cross, because whatever risk he runs is that the engine may suddenly start up, and stopping his own vehicle and going upon the track to look would not give him any addi- tional information as to the likelihood of that taking place." . . . " Where a single freight car, or a small group of cars, is standing near the crossing, it would be possible to ascertain, by looking from a point in the road close to the track, whether a train is about to run into it and drive it across the highway. But we do not think it can be said as a matter of law that the driver of an approaching vehicle is guilty of negligence if he neglects to take this precaution. He is bound to act upon the assumption that a train may at any moment be ' approaching upon an otherwise unoccupied track, until he has employed all reasonable means to assure himself to the con- trary. He may not rely on the fact that no signal has been given, for that affirmative precaution on the part of the trainmen may be thoughtlessly omitted. But if he sees that the track is obstructed by a detached car or string of oars, the probability of in- Kailroad Crossings. 719 Sec. 570. Choice of crossings. In an action for the recovery of damages caused by a col- lision with a railroad train, the fact that the crossing used by the driver was dangerous to his knowledge and that there was another crossing which was safer and which could have been used without inconvenience, is a matter which may be considered by the jury on the question of his contributory negligence.^^ Sec. 571. Sounding of horn by automobilist. It is held that the failure of an automobilist to sound his horn when approaching the crossing of an interurban rail- road does not necessarily convict him of contributory negli- gence, but that such failure is to be considered by the jury with the other surrounding circumstances in determining whether he exercised proper precautions.-*^ jury resulting to him from a train coming from that direction is so far diminished that we think the question ■whether ordinary prudence forbids his attempting to cross without further in- vestigation is a fair one for a jury." 27. Ft. Smith and W. R. Co. v. Seran, 44 Okla. 169. 143 Pac. 1141. 28. Louisville & I. R. Co. v. Mor- gan, 174 Ky. 633, 192 S. W. 672. wherein it was said : " As a matter of fact, the horn was not sounded as the automobile approached the crossing, and the question is presented whether the failure of an automobile to sound its horn while approaching a railroad crossing is such negligence per sc as to bar a recovery for damages to the automobile, when it is demolished upon the crossing by the negligence of the railroad company. The rule in this State is that contributory negli- gence, such as without which the in- jury would not have been received- bars a recoverj-. and in the instruc- tions to the jury in such cases thf courts have not o^-tablished any other rule for an automobilist, who is suing a railroad for damages to his automo- bile, than is applied to the owner of a wagon, threshing machine, or other vehicle, whose owner undertakes to cross a railroad track with it, and is struck by a train being operated upon the track. If one with a traction en- gine proposes to cross a railroad track, the jury is not told that it becomes the duty of the owner of the engine to sound a whistle from it, nor is the owner of a wagon or other vehicle re- quired, before crossing a railroad track, to shout, or to sound a horn, as a warning to the ones operating the cars upon the railroad tracks. The duty ordinarily required of one about to cross a railroad track, if he would escape contributing to his own injury by negligence, is to exercise ordinary care to discover the approach of a car and to avoid being struck by it, and to so use and move his own vehicle as to avoid colliding with the car upon the railroad track. The care required of him is such care as an ordinarily pru- dent person would exercise under simi- lar circumstances. The same standard of care applies to every one who under- takes to cross a railroad track, 720 The Law of Automobiles. Sec. 572. Speed and control. The driver of an automobile may be guilty of contributory negligence in running his machine over a railroad crossing at an unreasonable speed so that he will be barred from any remedy for injuries sustained in a collision with a railroad train.-'"^ Seasonable care requires that the driver of a motor vehicle have the machine under such control at a railroad crossing that it may be stopped if necessary to avoid a train.^o" His contributory negligence is especially clear, when whether he is upon horseback, on foot, or occupying a wagon or automobile. The danger of the crossing, the inabil- ity to observe, because of natural ob- structions, the qualities of the horse driven, or the automobile in use, the failure to sound a horn or ta kok for the train, and many other circum- stances, are proper subjects for con- sid-^ration in determining whether the traveler has or has not .exercised ordi- nary care; but these are matters to be considered and passed upon by the jury in determining whether the trav- eler has or has not exercised ordinary care under the circumstances, to look out for the car and keep out of its way. Our attention has not been called to any case in any jurisdiction where it has been held that it was the duty of the court to specifically direct the jury that, when an automobilibt proposes to cross a railroad track, to avoid the imputation of contributory negligence, he must sound the automo- bile's horn." 29. Hayes v. New York, etc., R. Co., 91 Conn. 301, 99 Atl. 694; Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517; Gage v. Atchison, etc., R. Co., 91 Kans.- 253, 137 Pac. 938; Farmer v. New York, etc., R. Co., 217 Mass. 158, 104 N. E. 492; Askey V. Chicago, etc., Ry. Co., 101 Neb. 266, 162 N. W. 647. And see section 305. Question for jury. — It is a question for the jury whether one is operating a motor vehicle at a rate of speed greater than is reasonable and proper. Central of Ga. R.'Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517. 30. Great Western Ry. Co. v. Lee (Colo.), 198 Pac. 270; Corbett v. Hines (Iowa), 180 N. W. 690; Gage v. Atch- ison, etc., R. Co., 91 Kans. 253, 137 Pac. 938; Walker v. Rodriguez, 139 La. 251, 71 So. 499; Farmer v. New York, etc., R. Co., 217 Mass. 158, 104 N. E. 492; Sanford v. Grand Trunk Western Ry. Co., 190 Mich. 390, 157 N. W. 38; Evans v. Illinois Cent. R. Co. (Mo.), 233 S. W. 397; Askey v. Chicago, etc., Ry. Co., 101 Neb. 266, 162 N. W. 647. Set also Sandresky v. Erie R. Co., 91 Misc. 67, 153 N. Y. Suppl. 612; Craig v. Pennsylvania R. Co., 243 Pa. St. 455, 90 Atl. 135; Bene- dict V. Hines (Wash.), 188 Pac. 512. " It is the duty of one operating an automobile and approaching a crossing with which he is familiar, and where the view is obstructed until near the track, to drive his car at such speed that he can stop it after discovering a train in time to avoid a collision. The high speed which prevents such con- trol at a railroad crossing is negligence as a matter of law. . . . This rule springs from the rule which recognizes a railroad crossing as a place of dan- ger and requires one, knowing he is approaching it, to look and. listen be- fore attempting to cross. Control of the vehicle is essential. The decedent either did not look for a train at a time when he could have saved him- self as he was approaching the cross- ing, or he was driving at a rate of Railroad Crossings. 721 he has exceeded the limit of speed fixed by statute or munici- pal ordinance.=^i ^iid in some cases reg-ulations prescribe the speed at which a motor traveler shall approach a railroad crossing ''- Of course, there may be a question for the jury whether the excessive speed was one of the proximate causes ■ of the injury .23 But, when the car is driven at such a speed that after the driver has reached the place to look for trains, he is unable to stop without being propelled on the track, his negligent speed is the cause of the collisionJ^^ It is the rule, however, in most States that the driver is not required, as a matter of law under all circumstances, to stop his machine, ^ and hence, if his speed is not clearly excessive, there may be a question for the jury whether speed of the machine consti- tutes contributory negligence.^^ A margin is allowed the 36. Payne v. Wall is (Tex. Civ. App.), 231 S. W. 1114. "The law ac- cords with common experience and rea- son that persons approaching a rail- road crossing when the view is ob- structed depend on the sense of hear- ing to inform them of approaching trains and this hearing includes the hearing of such warning signals as law or custom, or both, require. And in such a case, when a person is regu- lating his speed and conduct so as to maKe hearing effectual and listens at- tentively and hears no train, because of defendant's fault in not giving the required signals, then he may proceed at an ordinarily safe speed on the theory that the crossing is safe; and where the evidence tends to show that he did this, the court cannot declare him guilty of contributory negligence." Swigart v. Lush. 196 Mo. App. 471, 192 S. W. 138. A statute requiring a stop, and making it a misdemeanor not to do so. but containing provisions limiting its application so as not to aflTcct damage cases, was held not applicable to an action for injuries at a grade crossing. Hines v. Partridge (Tenn.), 231 S. W. 16. speed which made his discovery of the train unavailing. The failure to do these things is more than a slight negligence as a matter of law." Ask- ey V. Chicago, etc., Ry. Co., 101 Neb. 266, 162 N. W. 647. 31. Sections 321, 322. 32. Central of Ga. R. Co. v. Larsen, 19 Ga. App. 413 91 S. E. 517; Collins V. Hustis (N. H.), Ill Atl. 286; Texas, etc., R. Co. v. Harrington (Tex. Civ. App.), 209 S. W. 685. See also Texas & Pac. R. Co. v. Hilgartner (Tex. Civ. App.), 149 S. W. 1091; SchafT V. Bearden (Tex. Civ. App.), 211 S. W. 503; Chicago, etc., R. Co. v. Johnson (Tex. Civ. App.), 224 S. W. 277. 33. Central Indiana Ry. Co. v. Wis- hard, 186 Ind. 262, 114 N. E. 970; Shepard v. Norfolk Southern R. Co., 169 N. Car. 239, 84 S. E. 277; Hinton v. Southern Ry. Co., 172 N. Car. 587, 90 S. E. 756; Case v. Atlanta, etc., Ry. Co., 107 S. Car. 216, 92 S. E. 472; Houston, etc.. Ry. Co. v. Wilkerson (Tex. Civ. App.), 224 S. W. 574. 34. Christman v. Southern Pac. Co., 38 Cal. App. 196, 175 Pac. 808; Lan- ier V. Minneapolis, etc., Ry- Co. (Mich.), 176 N. W. 410. 35. Section 567. 46 722 The Law of Automobiles. operaix)r of tlie machine for a miscalculation of the distance within which he can stop the car.^^ In many States statutes have been enacted restricting th* speed of motor vehicles at the intersection of " highways." The term *' highway " may be construed to include such public ways as railroads and hence such regulations may be applicable to railroad crossings.^^ This question, however, is not free from difficulty, and a contraiy conclusion has been reached.^^ Sec. 573. Violation of statute regulating automobiles. The violation of a statute regulating the operation of motor vehicles is generally negligence ; and, if such violation is a proximate cause to injuries sustained by the operator, as a general rule he cannot recover for his injuries. Thus, an automobilist who attempts to cross a railroad traxik at a rate of speed greater than that prescribed by statute or municipal ordinance, is guilty of such conduct that, if the col- lision with a train is the proximate result of the speed, he cannot recover for his injuries.^^ The question of proximate cause is an important one, when contributoiy negligence is sought to be charged against the operator of a motor vehicle on account of the violation of some positive regulation. In most jurisdictions, the failure of the owner to have the ma- chine registered and licensed in accord with the statutes on the subject does not bar an action for injuries received in a collision with a train.*^ Similarly, the fact that the chauf- feur's badge was not in sight as required by law does not bar the action.^- 37. Bush V. Brewer, 136 Ark. 248, S. E. 168; Gilman v. Central Vt. Ry 206 S. W. 322. Co. (Vt.), 107 Atl. 122; Southern 38. Hinton v. Southern Ry. Co., 172 Ry. v. Voughan's Adm'r, 118 Va. 692, N. C. 587, 90 S. E. 756. 88 S. E. 305, L. R. A. 1916 E. 1222; 39. Dobbins v. Seaboard Air Line R. Derr v. Chicago, M-. & St. P. Ry. Co., Co. 108 S. Car. 254, 93 S. E. 932. 163 Wis. 234, 157 N. W. 753. And see 40. Section 572. section 126. 41. Central of Ga. Ry. Co. v. Moore, 42. Latham v. Cleveland, etc., R. 149 Ga. 581, 101 S. E. 668; Central of Co., 164 111, App. 559. Ga. Ry. Co. v. Moore (Ga. App.), 102 Railroad Crossings. 723 Sec. 574. Machine stalled on track. Where the operator of a motor vehicle exercises due care in approaching a railroad crossing and is justified in attempt- ing to pass over because no train is in sight, he is not neces- sarily guilty of contributoi-y negligence because his machine becomes '* stalled " on the track so that he cannot remove it before the approach of a train.^^ Questions of negligence in such cases are generally for the jury.'** And, on the other hand, if the engineer sees the machine stalled on the track, it is his duty to bring the train to a stop if reasonably pos- sible without danger to his passengers."^ In these cases, the last clear chance or " humanitarian " doctrine may be ap- 43. Littlewood v. Detroit United Ry., 189 Mich. 388. 155 N. W. 698; Gembell v. Minneapolis, etc., Ky. Co., 129 Minn. 262, 152 N. W. 408: Pack- ard V. New York, etc., R. Co.. 160 N. Y. App. Div. 856, 146 N. Y. Suppl. 878; Denkers v. Southern Pac. Co., 52 Utah 18, 171 Pac. 999; Norfolk-South- ern R. Co. V. Whitehead, 121 Va. 139, 92 S. E. 916; Hull v. Seattle, etc.. R. Co., 60 Wash. 162, 110 Pac. 804. Defective automobile. — If the ma- chine stops on the track on account of its def«ctive engine, and the railroad employees do everything in their power to stop the train before it reaches the automobile, the company is not liable. Louisville & Nashville R. Co. V. Harrison, 78 Fla. 38. 83 So. 89. Duty of flagman. — ^Where, as an automobile was close to a railroad track, for some unexplained reason it-s gears became locked and it could not be moved away from the track and was so close that the front part was struck by a passing train a few min- utes later, it was held that the proxi- mate cause of the injury was the stop- ping of the automobile and not the statement of a flagman stationed at sueli crossing that no train would come along for a long time. Further- more the court held that such a state- ment was outside his duty as a flag- man and not binding on the railroad company. And it was also held that he was under no duty to leave the crossing and go up the track and sig- nal the approaching train to atop. Car- nochan v. Erie R. Co., 73 Misc. 131, 130 N. Y. Suppl. 514. 44. Southern Pac. Co. v. Martinez, 270 Fed. 770; Geml>ell v. Minneapolis, etc., Ry. Co., 129 Minn. 262, 152 N. W. 408; Taylor v. Lehigh Valley R. Co., 87 N. J. L. 673. 94 Atl. 566; Packard V. New York, etc., R. Co., 160 N. Y. App. Div. 856, 146 N. Y. Suppl. 878; San Antonio, etc., Ry. Co. v. Moore (Tex. Civ. App.). 208 S. W. 754. Guilty of negligence. — ^Where the driver of an automobile got on the wrong road, crossed the railroad track, and discovering his mistake, turned and started to recross the track, got off the planking, which was sixteen feet wide over the track, and got his machine stalled crosswise of the track near the cattle guards, and it appeared that the night was bright, and that the stars were shining, and that all the lights on his machine were lighted and in good condition, it was thought that he was clearly guilty of contribu- tory negligence. Nicol v. Oregon- Washington R. & Nav. Co., 71 Wash. 409, 128 Pac. 628. 45. Taylor v. Lehigh Valley R. Co., 87 N. J. L. 673, 94 Atl. 566; Costin v. 724 The Law of Automobiles. plied with some force.^^ But the train operators are not re- quired to presume that an automolnle crossing the track in front of the engine will stop on the track.'^'^ An occupant may, however, be guilty of contributory negligence as a mat- ter of law, where with plenty of time to leave the car, he remains therein until it is struck by the train.^^ Not only for the rescue of the machine, but also to avoid possible mi- jury to the passengers on the railroad train, the operator of the motor vehicle owes a duty to remove the car if possible before the arrival of a train; and he will not be held guiUy ol negligence merely because he attempts to use the self .starter for that purpose.*^ Sec. 575. Last clear chance. Under the '' last clear chance " doctrine, as limited in the larger number of States, an automobilist who has negligently placed himself in a dangerous position on a railroad crossing may nevertheless recover for his injuries where the engineer of the approaching train discovered his peril and could by the exercise of reasonable diligence have stopped the train in time to have avoided the injury but negligently failed to do so.^*^ Moreover, when the engineer sees one in a danger- Tidewater Power Co. (N. Car.), 106 S. 49. Taylor v. Lehigh Valley R. Co., E. 568; San Antonio, etc., Ry. Co. v. 87 N. J. L. 673, 94 Atl. 566. Moore (Tex. Civ. App.), 208 S. W. 50. Alabama. — Hines v. Champion, 754, 85 So. 511; Miles v. Hines, 87 So. 837. 46. Monson v. Chicago, R. I. & P. Iowa. — Barrett v. Chicago, etc., R. Ry. Co. (Iowa), 159 N. W. 679; Mc- Co., 175 N. W. 950. See Waters v. Guire v. Chicago, etc., R. Co. (Mo. Chicago, etc., R. Co., 178 N. W. 534. App.), 228 S. W. 541; Taylor v. Le- Kansas. — Springer v. Chicago, etc., high Valley R. Co., 87 N. J. L. 673, 94 R. Co., 95 Kans. 408, 148 Pac. 611. Atl. 566; Norfolk-Southern R. Co. v. Maryland. — Payne v. Healey, 114 Whitehead, 121 Va. 139, 92 S. E. 916; Atl. 693. Nicol V. Oregon-Washington R. & Nav. Missouri. — Sandry v. Hines (Mo. Co., 71 Wash. 409, 128 Pac. 628. And App.) 226 S. W. 646. see section 575. A'eio Hampshire. — Chellis Realty Co. 47. Bagdad Land & Lumber Co. v. v. Boston & M. R. Co., 106 Atl. 742; Money way (Fla.), 86 So. 687. Xorth Carolina. — Goff v. Atlantic 48. Smith v. Erie R. Co., 182 N. Y. Coast Line R. Co., 179 N. Car. 216, 102 App. Div. 528. 169 N. Y. Suppl. 831; S. E. 320. Coleman v. Pittsburgh, etc., St. Ry. Oklahoma. — Wichita Falls, etc., R. Co., 251 Pa. 498, 96 Atl, 1051. Com^ Co. v. Groves, 196 Pac. 677, pare Taylor v, Lehigh Valley R. Co., Texas. — Texas Cent. R. Co. v, Lumas 87 N. J. L. 673, 94 Atl. 566. (Tex. Civ. App,), 149 S. W. 543; Gal- Railroad Crossings. 725 ous position, it may be his duty to blow his whistle or other- wise give warning of his approach.^^ If the engineer sees that an automobile is stalled on the track, he must use a rea- sonable degree of care to stop the train before it strikes the maohine, and he may be charged with negligence for his failure.^- And where an automobile collided with the rear of a freight train, and was pushed for a considerable distance along the track and then overturned, and an occupant was run over and killed, it was held that the railroad company was liable for the death,- notwithstanding any negligence of the decedent prior to the collision, if its employees could by exer- cising reasonable care, after becoming aware of the danger, have stopped the train before the overturning of the auto- mobile.^^ The discovery of the peril in time to avoid the acci- dent is generally an essential element of liability under this doctrine; there is no liability where the railroad employees did not discover, or could not by the exercise of reasonable care have discovered, the danger of the automobilist in time to have avoided the accident.^* Where the operator of the veston, etc., R. Co. v. S'oloman (Tex. 95 Kans. 364, 148 Pac. 621; Coby v. Civ. App.), 195 S. W. 321. Quincy, etc., R. Co., 174 Mo. App. 648, Washington. — Nicol v. Oregon- 161 S. W. 290; Tannehill v. Kansas Washington R. & Nav. Co., 71 Wash. City, etc., Ry. Co., 279 Mo. 158. 213 409, 128 Pac. 628. S'. W. 818; Andrews v. Mymer (Tex. 51. Costin V. Tidewater Power Co. Civ. App.). 190 S. W. 1164; Galveston, (N. Car.), 106 S. W. 568; Galveston, etc., R. Co. v. Sloman (Tex. Civ. etc., R, Co. v. Sloman (Tex. Civ. App.), 195 S. W. 321; Hines v. Fore- App.), 195 S. W. 321. man (Tex. Civ. App.), 229 S. W. 630; 52. Monson v. Chicago. R. I. & P. Hubenthal v. Spokane, etc., R. Co., 97 Ry. Co. (Iowa), 159 N. W. 679; Mc- Wash. 591, 166 Pac. 797; Monso v. Guire v. Chicago, etc., R. Co. (Mo. Bellingham & N. Ry. Co., 106 Wash. App.), 228 S. W. 541; Taylor v. I^e- 299, 179 Pac. 848. See also Lassen v. high Valley R. Co., 87 N. J. Law 673, New York, etc.. R. Co.. 87 Conn. 795, 94 Atl. 566; Costin v. Tidewater 87 Atl. 734. Power Co. (N. Car.), 106 S. E. 568; Automobile light shining across Norfolk Southern R. Co. v. Whitehead, track. — ^The fact that the lights from 121 Va. 139. 92 S. E. 916. And see an automobile which is out of sight section 574. are shining across the track does not, 53. Springer v. Chicago, etc., R. Co., of itself, charge the engineer with in- 05 Kans. 408. 148 Pac. 611. See also, formation that the occupants of the Cleveland, etc.. R. Co. v. Baker (Ind.), machine are in danger. Coby v. 128 N. E. 836. Quincy, etc., R. Co.. 174 Mo. App. 648. 54. McBeth v. Atchison, etc., R. Co., 161 S. W. 290. 726 The Law of Automobiles, motor vehicle drives on the track but a short distance ahead of a rapidly approaching train, there is no opportunity for application of the doctrine.^^ Until the engineer sees that the automobilist intends to hazard a crossing in the face of the train, he may properly assume that the car will be stopped before reaching the track.-^*^' As a general proposition, it is also an essential element for the operation of the last clear chance doctrine that the negligence of the plaintiff should have spent itself before the injury; if it continues np to the time of the collision, it bars his action.^' Sec. 576. Acts in emergencies. If the operator of a motor vehicle, while crossing a rail- road track, is suddenly confronted with a rapidly approach- ing train, he is not expected to use the judgment which he would exercise when not in such a position of peril.^^ His Machine struck and left near track. — An automobile owner who negligent- ly attempts to drive his car across a railroad track cannot recover from the railroad company for the injury done to the car, where it is hit by a passing train, which leaves the car by the side of the track in such a position that in a few minutes it is struck by another train, the engineer on which does not see it in time to stop his train before colliding with it. Greene v. Atchison, etc., R. Co. (Kans.), 198 Pac. 056. 55. Coby V. Quincy, etc., R. Co., 174 Mo. App. 648, 161 S. W. 290; Virginia & S. W. Ry. Co. V. Skinner, 119 Va. 843, 89 S. E. 887; Norfolk-Southern R. Co. V. Smith, 122 Va. 302, 94 S. E. 789. 56. Hurt V. Southern Ry. Co. (Ala.). 87 So. 533; Trasher v. St. Louis, etc., Ry. Co. (Okla.), 198 Pac. 97; Miller v. Northern Pac, Ry. Co., 105 Wash. 645, 178 Pac. 808. 57. Borglum v. New York, etc., R. Co., 90 Conn. 52. 96 Atl. 174; Rule v. Atchison Ry. Co., 107 Kans. 479, 192 Pac. 729; Callery v. Morgan's Louis- iana, etc., S. S. Co., 139 La. 763, 72 So. 222; Krouse v. Southern Mich. Ry. Co. (Mich.), 183 N. W. 768. "The doc- trine of last clear chance is applied perhaps most frequently to cases where the plaintiff's negligence has termi- nated, and where the defendant there- after, in the exercise of reasonable care and owing a duty to exercise it, should have discovered the peril in time to have prevented an injury. It has also (►ften been applied where it would be appjirent to one in control of a danger- ou.e agency, if exercising reasonable vigilance, that a traveler is imcon- ^ious of his danger or so situated as to be incapable of self-protection, and in such cases, if the one controlling the agency could have averted the dan- ger by exercising reasonable care and failed to do »o. liability follows. It is based upon the principle that the negligence of the one is remote, and that the negligence of the other is the proximate and efficient cause of the catastrophe; he having the last clear opportunity of preventing it." Nicol v. Oregon- Washington R. & Nav. Co.. 71 Wash. 409. 128 Pa<\ 628. 58. T'lvted states. — Lehigh Valley Railroad Ceossings. 727 conduct is not closely scrutinized, and his negligence may be a question for the jury though he did not in the emergency use the best method of avoiding in jury. ^''^ He may jump from the vehicle or he may stay with the machine in the hope of passing the danger point before he is struck; and his con tributoo' negligence in taking either alternative, though it develops that the other would have better availed him, is gen- erally a question for the jury.^^ And it has been held that one approaching a railroad track and having his vehicle under such control that he could have stopped it without in- jury, is not necessarily charged with negligence because he became confused and scared by reason of the negligence of the railroad and thus failed to stop the machine before reach- ing the tracks.^i The rule releasing one from responsibility for careless acts committed in an emergency, cannot be in- voked in behalf of one who has placed himself in such a posl tion through his own lack of care.^- R. Co. V. Kilmer, 231 Fed. 628, 145 C. C. A. 514; McClure v. Siouthern Pac. Co. (Cal. App.), 183 Pac. 248. Indiana. — Indiana Union Traction Co. V. I>ove. 180 Ind. 442, 99 N. E. 1005. Michigan. — Littlewood v. Detroit United Ry., 189 Mich. 388, 155 N. W. 698. Missouri. — Swigart v. Lusk, 196 Mo. App. 471, 192 S. W. 138. New Jersey. — Dickinson v. Erie R. Co., 81 N. J. L. 464, 81 Atl. 104. North Carolina. — Brown & Co. v. Atlantic Coast Line R. Co., 171 N. C. 266, 88 S. E. 329. " If without fault, he went upon the track and was then confronted s^uddenly by a grave peril, and exercised such care as a man of ordinary prudence and presence of mind would have used under the same circumstance«i, negligence will not be imputed to him, and the court bo charged the jury. Not having brought the danger upon himself, or, if he did, the defendant having a fair oppor- tunity to prevent the injury, he was not required to act wisely or discreet- ly, but only with such care and judg- ment as would be c.vpecttU uf a man of ordinary prudence in a like situ- ation.'" Brown & Co. v. Atlantic Coast Line R. Co., 171 N. Car. 266, 88 S. E. 329. Texas. — See Baker v. Collins (Civ. App.), 199 S. VV. 519. 59. Indiana Union Traction Co. v. Love, 180 Ind. 442, 99 N. E. 1005; Dombrenos v. Chicago, etc., Ry. Co. (Iowa), 174 N. VV. 596; Brown & Co. V. Atlantic Coast Line R. Co., 171 X. C. 266, 88 S. E. 329. 60. Indiana Union Traction Co. \f. Love, 180 Ind. 442, 99 N. E. 1005; Sherwood v. New York Central, etc.. R. Co.. 120 N. Y. App. Div. 639, 105 N. Y. Suppl. 547. See also Northern Pac. R. Co. V. Vidal, 184 Fed. 707; Krouae v. Southern Mich. Ky. Co. (Mich.), 183 N. W. 768. 61. Central of Georgia Ry. Co. t. Faust (Ala. App.), 82 So. 36; Gillipie V. Pryor (Mo. App.), 204 S. W. S35. 62. Fogg V. New York, etc.. R. Co., 223 Mass. 444, HI N. E. 960: Dob- bins V. Seaboard Air Line R. Co.. 108 S. Car. 254, 93 S. E. 932. 728 The Law of Automobiles. Sec. 577. Function of jury. While negligence and contributory negligence of parties are essentially questions within the province of the jury,^'^ the contributory negligence of an automobilist while crossing 63. United States. — Lake Erie & W. R. Co. V. Schneider, 257 Fed. 675; Fish V. Pennsylvania Co., 259 Fed. 201; Hines v. Hoover, 271 Fed. 645. Alabama. — Illinois Cent. R. Co. v. Camp, 201 Ala, 4, 75 So. 290. Arizona. — By the State Constitu- tion, contributory negligence is a jury question. Davis v. Boggs, 199 Pac. 116. Arkansas. — Bush v. Brewer, 136 Ark. 248, 206 S. W. 322; St. Louis-San Francisco Ry. Co. v. Stewart, 137 Ark. 6, 207 S, W. 440. Delaware. — Nailor v. Maryland D. & V. Ry. Co., 6 Boyce's (29 Del.) 145, 97 Atl. 418. Florida. — Louisville & N. R. Co. v. English, 78 Fla. 38, 82 So. 819. Georgia. — Seaboard Air Line Ry. v. Hallis, 20 Ga. App. 555, 93 S. E. 264. Illinois. — Moore v. Bloomington, etc., R. Co., 295 111. 173, 128 N. E. 72; Boggs v. Iowa Central Ry. Co., 187 111. App. 621; McDonell v. Lake Erie & Western Ry. Co., 208 111. App. 442. Indiana. — Lake Erie & W. R. Co., v. Hawarth (Ind. App.), 124 N. E. 687; Lake Erie & W. R. Co. v. Griswold (Ind. App.), 125 N. E. 783. Iowa. — Rupener v. Cedar Rapids & Iowa City Railway Co., 178 Iowa 615, 159 N. W. 1048; Fuller v. Illinois Cen- tral R. Co., 186 Iowa 686, 173 N. W. 137; Dombresnos v. Chicago, etc., Ry. Co., 174 N. W. 596; Black v. Chicago Great Western R. Co., 174 N. W. 774; Barrett v. Chicago, etc., R. Co., 180 N. W. 670. Kansas. — Keys v. Schaff, 193 Pac. 322, 107 Kans. 620. Kentucky. — Louisville, etc., R. Co. v. Clore. 183 Ky. 261, 209 S. W. 55. Massachusetts. — See Stretton v. N. Y., etc., R. Co., 198 Mass. 573, 84 N. E. 799. Michigan. — Mills v. Waters, 198 Mich. 637, 165 N. W. 740; Fillingham V. Detroit, etc., R. Co., 207 Mich. 644, 175 N. W. 227. Minnesota. — Green v. Great North- ern R. Co., 123 Minn. 279, 143 N. W. 722; Stepp v. Minneapolis, etc., R. Co., 137 Minn. 117. 162 N. W. 1051; De- Vriendt v. Chicago, etc., R. Co., 144 Minn. 467, 175 N. W. 99. Missouri. — Gillipie v. Pryor (Mo. App.), 204 S. W. 835; Monroe v. Chi- cago, etc., R. Co., 219 S. W. 68. New Jersey. — Baer v. Lehigh, etc., Ry. Co., 93 N. J. Law. 85, 106 Atl. 421. Oklahoma. — By constitutional pro- visions, contributory negligence is a jury question. See Wichita Falls, etc., Pv. Co. v. Groves (Okla.), 196 Pac. 677. Oregon. — Robinson v. Oregon-Wash- ington R. & Navigation Co., 90 Oreg. 490, 176 Pac. 594. Tennessee. — Hines v. Partridge, 231 S. W. 16. Texas. — ^Kirksey v. Southern Trac- tion Co., 217 S. W. 139; Harrell v. St. Louis, etc., R. Co., 222 S. W. 221; Southern Pac. R. Co. v. Walker (Civ. App.), 171 S. W. 264; Missouri, etc., R. Co. v. Thayer (Civ. App.), 178 S. W. 988; Galveston H. & S. A. R. Co. V. Marti (Civ. App.). 183 S. W. 846; Beaumont S. L. & W. Ry. Co. v. My- rieh (Civ. App.), 208 S. W. 935; Schaff V. Merchant (Civ. App.), 212 S. W. 970; Moye v. Beaumont, S. L. & W. Ry. Co. (Civ. App.), 212 S. W. 471; Galveston-Houston EJec. Ry. Co. V. Patella (Civ. App.), 222 S. W. 615; St. Louis, etc., Ry. Co. v. Morgan (Civ. App.), 220 S. W. 281; Hines v. Fore- man (Civ. App.), 229 S. W. 630. Railroad Crossings. 729 a railroad track is many times decided as a matter of law. Thus, if lie attempts to cross the track without properly look- ing and listening for approaching trains, he will be denied recovery for his injuries as a matter of law.*^^ If the ques- tion is, however, presented to the jury, a verdict for the rail- road company would not be disturbed, except under the most unusual circumstances.^^ As a general rule it is only in clear cases where the facts are undisputed and but one infer- ence can be drawn from them, that courts can declare as a matter of law a party g-uilty of contributory negligence.^'* Utah. — Shortino v. Salt Lake & U. R. Co., 52 Utah 476, 174 Pac. 861. Washington. — Brand v. Northern Pac. Ry. Co., 6 A. L. R. 669 n. 105 Wash. 138, 177 Pac. 806. Wisconsin. — Gordon v. Illinois Cent. R. Co., 168 Wis. 244, 169 N. W. 570. 64. Section 557. 65. Jerolleman v. New Orleans Ter- minal Co., 140 La. 895, 74 So. 186. 66. Delaware. — Nailor v. Maryland, etc., R. Co., 97 Atl. 418. Georgia. — Seaboard Air Line Ry. v. Hallis, 20 Ga. App. 555, 93 S. E. 264. Indiana. — Indiana Union Traction Co. V. Love, 180 Ind. 442, 99 N. E. 1005; Union Traction Co. of Indiana V. Haworth. 187 Ind. 451, 115 N. E. 753. " The law imposes a duty on travelers on a highway approaching a railway crossing to use reasonable care. This duty arises out of the re- lation of parties, and is declared to exist as a matter of law; but, when the question arises as to what acts or conduct ordinary care requires under the circumstances of a particular case, this must generally be determined as a question of fact. The court cannot eay as a matter of law that ordinary care requires a designated act to be done, or that it required a specific act to be omitted, unless the act in ques- tion was of such a character as to be wholly incompatible with the exercise of reasonable care when considered in the light of attending circumstances. It must be so absolutely inconsistent with the exercise of ordinary care that there could be no room for reasonable minds to diflFer on the ([uestion. So long as there is room for an honest dif- ference between reasonable minds as to whether or not the doing (or the omission to do, as the case might be) of the particular act was consistent with the care that a man of ordinary prudence would use under the circum- stances, the question is one of fact for the jury." Central Indiana Ry. Co. v. Wishard. 186 Ind. 262, 114 N. E. 970. ' Iowa. — Hawkins v. Interurban Ry. Co., 184 Iowa 232, 168 N. W. 234. Pennsylvania. — Witmer v. Bessemer, etc., R. Co.. 241 Pa. St. 112, 88 Atl. 814. Tennessee. — ^Hurt v. Yazoo, etc., R. Co., 140 Tenn. 623, 205 S. W. 437. Texas. — " Before this court can say that any of the alleged acts of the driver on the occasion in question was contribiitory negligence as a matter of law. such acts must haye been in vio- lation of some law, or that the facts were undisputed and admitted of but one inference regarding the care of the party in doing the acts in question. In other words, to have authorized the court to take the question from the jury, the evidence must have been of such character that tliore was no room for ordinary minds to differ as to the conclusion to be drawn from it." Hous- ton Belt & Terminal Ry. Co. v. Hardin Lumber Co. (Tex. Civ. App.), 189 S. W. 518. 730 The Law of Automobiles. But, if one blindly crosses a railroad track without taking any measures to ascertain whether a train is approaching, but one inference can be drawn ; no reasonable person would say that the driver was in the exercise of ordinary oare/'^ The failure to stop before attempting to cross the track, in most States, will present under ordinary circumstances a question of contributoiy negligence for the jury;^^ in some States, however, the courts dispose of the question by hold- ing as a matter of law that the traveler is guilty of negli- gence.*^^ Sec. 578. Negligence of railroad in operation of train — ^in- evitable accident. A railroad company is not an insurer of the safety of trav- elers crossing its tracks over a grade crossing ;^^ its duty is to exercise ordinary care under the circumstances and to comply with such regulations as are imposed by State and municipalities upon the operation of its trains.^^ If the rail- Utah. — Sliortino v. Salt Lake & U. R. Co., 52 Utah 476, 174 Pac. 86L "If there is any substantial doubt whether a plaintiff was or was not guilty of contributory negligence, or whether, if negligent, such negligence was the proximate cause of the injury, the court cannot determine the right to re- cover as a matter of law, but mu.st submit the question of contributory negligence or of proximate cause, or both, to the jury as ques,tions of fact." Shortino v. Salt Lake & U. R. Co.. 52 Utah 476, 174 Pac. 861. Virginia. — Seaboard Air Line Ry. v. Abemathy, 121 Va. 173, 92 S. E. 913. 67. Singer v. Erie R. Co.. 231 N. Y. 268. " While it is true that the trav- eler, in attempting to cross a railroad track at a public crossing, i> required to exercise only ordinary care, yet what constitutes ordinary care under such circiimstances. or, as it is some- times termed, " the mdasure of duty.' is prescribed by law, and therefore is not left to the whim or caprice of either court or jury. The measure of duty in such case is to look and listen, and, under certain circumstances, it may even be necessary to stop. If, there- fore, the evidence discloses that the traveler has failed to comply with the duty the law imposes, and his failure is the proximate cause of the accident and injury, the law prevents a recov- ery." Shortino v. Salt Lake & U. R. Co., 52 Utah 476, 174 Pac. 861. 68. Section 567. 69. Section 568. 70. Greiner v. Pennsylvania Co., 198 111. App. 260. Oiled road. — ^A railroad company is not required to anticipate that on ac- count of oil on the road an aiitoist will be unable to stop his car when approaching the track. Oilman v. Central Vt. Ry. Co. (Vt.). 107 Atl. 122. 71. Taylor v. LeMgh Valley R. Co., 87 N. .7.L. 673. 94 Atl. .566; Nicol v. Oregon-Washington R., & Nav. Co., 71 Wash. 409, 128 Pac. 628. Railroad Crossings. 731 road employees comply with all requirements of the law, but an automobilist suddenly drives upon the track in front of the train, the ensuing accident is due either to inevitable acci- dent or to the contributory negligence of the traveler. In either contingency, the railroad is not responsible for damages.^- Sec. 579. Negligence of railroad in operation of train — speed. Municipal ordinances or statutes regulating the speed of railroad trains over street or highway crossings are to be obeyed, and their violation may render it liable for injuries proximately resulting to one traveling in a motor vehicle and exercising due care for his safety.'^" But, in the absence of ordinance or statute, it is not a breach of duty to operate a train at any speed over such a public crossing unless the operative of the train knows that the use of the crossing by the public is so frequent and so constant as that people or property are likely, probably, in exposed positions at or about the crossing.'^ Ordinarily, the engineer is not required to 72. Bagwell v. Southern Ry, Co., 167 16ti Pao. 797. N. Car. 611, 83 S. E. 814; Andrews v. Interurban car. — It is not neces Mynier (Tex. Civ. App.), 190 S. W. sarily negligence to run an interurban 1164. electric car across a city street at a 73. Van Orsdale v. Illinois Cent. R. speed of from ten to fifteen miles an Co., 210 111. App. 619; Pittsburgh, etc., hour. Union Traction Co. v. Howard, R. Co. V. Dove, 184 Ind. 447, 111 N. 173 Ind. 335, 90 N. E. 764. Or, in the E. 609; Black v. Chicago Great West- absence of some regulation fixing the ern R. Co., 174 N. W. 774; Broussard .speed, at a rate of thirty miles over V. Louisiana Western R. Co., 140 La. a country highway. Indiana Union 517, 73 So. 606; Dyer v. Maine Cent. Traction Co. v. Love, 180 Ind. 442, 99 R. Co. (Me.), 113 Atl. 26; Laurisch v. N. E. 1005. But in some cases the Minneapolis, St. P. R. & D. Electric speed of an interurban car will pre- Traction Co., 132 Minn. 114. 155 N. sent a nuestion for the jury. Stem v. W. 1074; Brinkley v. Southern Ry. Kashville Interurban Ry., 142 Tenn. Co., 113 Miss. 367. 74 So. 280; Hines 494, 221 S. W. 192. V. Moore (Miss.), 87 So. 1; Houston 74. Rothrock v. Alabama Great Belt & Terminal Ry. Go. v. Hardin Southern R. Co. (Ala.). 78 So. 84; Lumber Co. (Tex. Civ. App.), 189 S. Pittsburgh, etc.. Ry. Co. v. Nichols W. 518; Baker v. Streater (Tex. Civ. (Ind. App.), 130 N. K. .')46; Piersall'a App.), 221 S. W. 1039; Shortino v. Adm'r, v. Chesapeake & O. Ry. C. 180 Salt Lake & U. R. Co., 52 Utah 476. Ky. 659, 203 S. W. 551; Denkers v 174 Pac. 861. See also Hubenthal v. Southern Pao. Co. .52 Utah 18, 171 Pac. Spokane, etc. R. Co.. 97 Wa-sh. 581. 999. 732 The Law of Automobiles. stop his train because there are automobile travelers in the vicinity of a crossing. If such travelers are apparently under no disability, either mentally or physically, he may properly assume that they will not place themselves in a dan- gerous position; or, if they are on the track when the train is at some distance, that they will go forward or backward and avoid a collision/^ But, if the engineer sees that a motor vehicle is apparently stalled on the tracks, it is his duty to stop his train, as quickly as is consistent with the safety of his passengers.''^ Sec. 580. Negligence of railroad in operation of train — warning. In nearly all .jurisdictions, the railroad employees running an engine are required by statute to ring the bell or blow the whistle, or both, when the engine is approaching a grade crossing. The failure to give the proper warning affords ample ground for liability; and, if an automobilist in the ex- ercise of due care receives injuries by reason of a neglect to give the proper warning, the railroad must generally respond in damages.'*^' And, after sunset, it is a general requirement 75. Yazos, etc., R. Co. v. Williams, Western Ry. Co., 208 111. App. 442; 114 Miss. 236, 74 So. 835; McMillian Van Orsdale v. Illinois Cent. R. Co., V. Atlanta, etc., Ry. Co., 172 N. C. 853, 210 III. App. 619. 90 S. E. 683. Indiana.— PittshuTgh, etc., R. Co. v. 76. McBeth v. Atchison, etc., R. Co., Dove, 184 Ind. 447, 111 N. E. 609; 95 Kans. 364, 148 Pac. 621; Taylor v. Lake Erie & W. R. Co. v. Howarth Lehigh Valley R. Co., 87 N. J. Law, (Ind. App.), 124 N. E. 687; Cleveland, 673, 94 Atl. 566. And see section 574. etc., R. Co. v. Baker (Ind.), 128 N. E. 77. United States.— Lake Erie & W. 836. R. Co. V. Schneider, 257 Fed. 675; Kentuclcy. — Piersall's Adm'r v. Charleston, etc., R. Co. v. Alwang, 258 Chesapeake & 0. Ry. Co., 180 Ky. 659, Fed. 297. 203 S. W. 551; Louisville, etc., R. Co. Arizona,.— D&viB v. Boggs, 199 Pac. v. Clore, 183 Ky. 261, 209 S. W. 55. 116. Louisiana. — Clements v. Texas, et«.. California.— EAW^ v. Central Call- Ry. Co., 148 La. , 88 So. 394. fornia Tract. Co., 37 Cal. App. 390, 174 Massachusetts. — Lydon v. New York, Pac. 407. etc., R. Co., 126 N. E. 794. Georgia. — ^Seaboard Air Line Ry. v. Michigan. — Nichols v. Grand Trunk Hallis, 20 Ga. App. 555, 93 S. E. 264. Western Ry. Co., 203 Mich. 372, 16S Idaho. — Graves v. Northern Pac. Ry. N. W. 1046. Co., 30 Idaho 542. 166 Pac. 571. Minnesota. — Laurisch v. Minne.ij.- Illinois. — ^McDonell v. Lake Erie & olis, St. P. R. & D. Electric Traction Railroad Crossings. 733 that the engine shall have a headlight, the absence of which may justify a charge of negligence.'^ If, however, the per- Co., 132 Minn. 114, 155 N. W. 1074; Anderson v. Great Northern Ry. Co., 179 N. W. 687. Mississippi. — Yazos, etc., R. Co. v. Williams, 114 Miss. 236, 74 So. 835. North Carolina.— GoS v. Atlantic Coast Line R. Co., 179 N. Car. 216, 102 S. E. 320; Perry v. McAdoo, 104 S. E. 673; Costin v. Tidewater Power Co., 106 S. E. 568. OA'/tt/ioma.— Midland Valley R. Co. V. Lawhorn, 198 Pac. 586. Pennsylvania. — V^'anner v. Philadel- phia, etc., Ry. Co., 261 Pa. 273, 104 Atl. 570; Ellne v. Western Maryland Ry. Co., 262 Pa. 33, 104 Atl. 857; Win- gert V. Philadelphia, etc., Ry. Co., 262 Pa. 21, 104 Atl. 859. Tennessee. — Tennessee Cent. R. Co. V. Vanhoy, 226 S. W. 225. Texas. — Texarkana & Ft. Smith Ry. Co. V. Rea (Civ. App.), 180 S. W. 945; Houston Belt & Terminal Ry. Co. v. Hardin Lumber Co. (Civ. App.), 189 S. W. 518; Chicago, etc., Ry. Co. v. Johnson (Civ. App.), 224 S. \Y. 277; Hines v. Foreman (Civ. App.), 229 S. W. 630. yjr^tnia.— Norfolk & W. Ry. Co. v. Simmons, 103 S'. E. 609. Washington.— McK'mney v. Port Townsend & P. S. Ry. Co., 91 Wash. 387, 158 Pac. 107; Kent v. Walla Walla Valley Ry. Co., 108 Wash. 251, 183 Pac. 87. "In almost every State it is made by statute the duty of an engineer, in approaching a crossing, to sound his whistle or ring his bell, or both. W^here the statute imposes the duty, the fail- ure to comply with it is negligence per se. Unless the duty is imposed by statute, the failure to give such sig- nals is not as matter of law a neglect of duty. In such a case the failure to give the signals would be a question of fact for the jury to decide whether, under the circumstances, the omission amounted to a failure to exercise due care." Lehigh Valley R. Co. v. Kil- mer, 231 Fed. 628, 145 C. C. A. 514. Testimony of occupants of automo- bile. — In the absence of evidence show- ing that the noise of the vehicle would drown the sound of the bell upon the locomotive, the courts will not say that the occupants of the vehicle were prevented from hearing the signal of the locomotive, and will not hold as a matter of law that their testimony that no signal was given is valueless. Advance Transfer Co. v. Chicago, etc., R. Co. (Mo. App.). 195 S. W. 566. Negative testimony.— Testimony of witnesses that they did not hear the bell rung, or the whistle sounded, will not sustain a finding of the jury that such warnings were not given where the witnesses testified that they were not paying any particular attention to that occurrence and that the signals might have been given without their knowledge, and other witnesses testi- fied postively that the signals were given. Rickert v. Union Pac. R. Co., 100 Neb. 304, 160 N. W. 86. See also, as to negative testimony, Fayet v. St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671; Collins v. Hustis (N. H.), Ill Atl. 286; Schaff v. Bearden (Tex. Civ. App.), 211 S. W. 503; Hines v. Roan (Civ. App.), 230 S. W. 1070; McKin- ney v. Port Townsend & P. S. Ry. Co., gi'Wash. 387, 158 Pac. 107; Matutino- Vich v. New York Central R. Co., 182 App. Div. 451, 162 N. Y. Suppl. 350. Question for jury. — In case of con- flict in the testimony whether the proper warning was given, a question is presented within the province of the jury. Louisville & N. R. Co. v. Treanor's Adm'r. 179 Ky. 337, 200 S. W. 634; Advance Transfer Co. v. Chi- cago, etc.. R. Co. (Mo. App.). 195 S. W. 566. 78. Laurisch v. Minneapolis. St. P. 734 The Law of Automobiles. son injured had actual knowledge of the approach of the train, the failure to give the statutory warning cannot be deemed the proximate cause of his injuriesJ^ A railroad is not required to have a gate or flagman or brakeman, or to ma:inta.in signals and lights at every crossing of a highway, but only at such places as may be regarded as reasonably necessaiy for the protection of travelers. What might be considered as reasonably necessary for such protection at one grossing might be deemed wholly needless and unnecessary at another, in each case depending upon the amount of travel upon the highway, the frequency with which trains passed over it, upon the view which could be obtained of trains as they approached the crossing and upon other conditions.^^ It is not incumbent upon a railroad to keep and maintain a gong at a crossing, since other modes of warning might equally suffice, but having so estabUshed it and educated trav- elers to rely upon such a warning, it is the duty of the rail- road either to keep it in efficient operation, or to give notice that it is not in working order.'^*^*' R. & D. Electric Traction Co., 132 (Iowa), 180 N. W. 152; Trask v. Bos- Minn. 114, 155 N. W. 1074; Hines v. ton & M. R. Co., 219 Mass. 410, 106 N. Chicago etc., Ry. Co. (Wash.), 177 E. 1022; Southern Pac. R. Co. v. p^^ 795 Walker (Tex. Civ. App.), 171 S. W. Backing a train over a crossing at 264; Baker v. Streater (Tex. Civ. night without a warning or light, is App.), 221 S. W. 1039; Chicago, etc.. negligence. Parker v. Seaboard Air R. Co. v. Shockley (Tex. Civ. App.), Line Ry. (N. Car.), 106 S. E. 755. 214 S. W, 716; Chicago, etc., Ry. Co. 79 Central of Ga. Ry. Co. v. Mc- v. Zumwalt (Tex. Civ. App.), 226 S. Key 13 Ga. App. 477, 79 S. E. 378; W. 1080. See also Conant v. Grand Frush v. Waterloo, etc., Ry. Co. 185 Trunk Ry. Co., 114 Me. 92, 95 Atl. 444. Iowa 156, 169 N. W. 360. 80-a. Washington v. Birmingham Sign.— The failure to obey a statute Southern R. Co., 203 Ala. 295, 82 requiring a sign at a crossing is not So. 545; Birmingham So. R. Co. v. the proximate cause of an injury. Harrison, 203 Ala. 284, 82 So. 534. where the driver has actual knowledge Negligence of flagman.— See Lake of the crossing. Hines v. McCullers,- Erie & W. R. Co. v. Griswold (Ind. 121 Miss. 666, 83 So. 734. App.), 125 N. E. 783; Lake Erie & W. 80. Opp V. Pryor (HI.), 128 N. E. R. Co. v. Sanders (Ind. App.), 125 N. 580; Glanville v. Chicago, etc., R. Co. E. 793. Railroad Crossings. 735 Sec. 581. Negligence of railroad in operation of train — obstruction along railroad. While a railroad company cannot be charged with negli- gence because the railroad station or some other building or object useful in the operation of the railroad obstructs the view of approaching travelers,^^ in some jurisdictions the maintenance of unnecessary obstructions may afford ground for an allegation of negligence.^- In any event, the existence of obstructions may influence the precautions to be taken by the railroad; if a view of the crossing is obstructed, it is rea- sonable to expect the train to be propelled at a lower speed and the warning signals to be given with greater care.^^ In an action for injuries arising from a collision with a car standing on a crossing, the automobilist cannot recover on the theory that the railroad company violated the statute forbid- ding the blocking of a crossing for more than five minutes, where he fails to show how long the car had remained at the crossing.^* Sec. 582. Negligence of railroad in operation of train — defec- tive crossing. A duty is imposed on a railroad company to exercise rea- sonable care to keep its grade crossings in repair for the avoidance of injury, not only to its own passengers, but also to vehicular travelers using the crossing.^^ The duty of the company in this respect is generally affirmed by statute.^ If, 81. Corley v. Atchison, etc., Ry. Co., Mass. 410, 106 N. E. 1022. And see 90 Kans. 70, 133 Pac. 555; Bickert T. Central Indiana Ry. Co. v. Wishard, Union Pac. R. Co., 100 Neb. 304, 160 186 Ind. 262, 114 N. E. 970; Galves- ]Sr. W. 86. ton, H. & S. A. R. Co. v. Marti (Tex. 82. Corley v. Atchison, etc., Ry. Co., Civ. App.), 183 S. W. 846. 90 Kans. 70, 133 Pac. 555; Burzio v. 85. Southern Pac. Co. v. Martinez, Joplin, etc., Ry. Co., 102 Kans. 287- 270 Fed. 770; Southern Ry. Co. v. 562, 171 Pac. 3*51; Texas & P. Ry. Co. Flynt, 203 Ala. 65. 82 So. 25; Taylor V. Eddleman (Tex. Civ. App.), 175 S. v. Lehigh Valley R. Co., 87 N. J. L. W. 775. 673, 94 Atl. 566; Pusey v. Atlantic 83. vSchaefer v. Arkansas Valley In- Coast Line R. Co. (N. Car.), 106 S. E. tx:rurban Ry. Co. (Kans.), 179 Pac. 452; Dobbins v. Seaboard Air Line R. 323; Fimple v. Southern Pac. Co., 38 Co.. 108 S. Car. 254, 93 S. E. 932. Cal. App. 727, 177 Pac. 871. 86. Root v. Connecticut Co. (Conn.). 84. Trask v. Boston & M. R. Co., 219 108 Atl. 506; Peterson v. Chicago, etc., 736 The Law of Automobiles. on account of a defect in the crossing, tlie occupant of an automobile using due care is injured, the company must re- spond in damages.*^^ If a defective crossing causes the en- gine of the automobile to become stalled so that the machine cannot be moved before the arrival of the train the company may be liable.^^ Even after the appointment of a receiver for the company, the duty of maintaining the crossing in a reasonably safe condition continues in force, so that dam- ages may be collected of the receiver.^^ Some difficulty may be encountered in locating the demarkation between the crossing to be maintained by the railroad and the approach thereto to be maintained by the town, county or other high- way district.^^ Sec. 583. Negligence of railroad in operation of train — pri- vate crossing. The duty of the employees of a railroad company at a pri- vate crossing is different than at a public crossing. Many statutory provisions governing the operation of trains over crossings will be found inapplicable at private crossings.^^ At a private crossing in a rural district, ordinarily the rail- road is not required to give any warning of the approach of its cars, nor is it required to slacken the speed thereof, but may run them at any speed consistent with its duty to its own passengers.^- As to a mere licensee using the private cross- ing, the duty of the railroad is merely to use reasonable care R. Co., 185 Iowa 378, 170 N. W. 452; 270 Fed. 770. Taylor v. Lehigh Valley R. Co., 87 N. 89. Louisville & I. R. Co. v. Spreck- J. L. 673, 94 Atl. 566; Felton v. Mid- man, 169 Ky. 385, 183 S. W. 915. See land Continental R. R., 32 N. Dak. 223, also, Cottam v. Oregon Short Line R. 155 N. W. 23. Co. (Utah), 187 Pac. 827. Absolutely safe. — Statutes do not 90. See Louisville & I. R. Co. v. require that the crossing shall be ab- Speckman, 169 Ky. 385, 183 S. W. 915. solutely safe for travelers. Peterson v. 91. Hawkins v. Interurban Ry. Co. Chicacro, etc., R. Co., 185 Iowa 378, 170 184 Iowa 232, 168 N. W. 234. N. W. 452. 92. Central of Ga. Ry. v. McKey, 13 87, Still v. Atlantic Coast Line R. Ga. App. 477, 79 S. E. 378; Louisville Co. (S'. Car.), 101 S. E. 836; Smith v. & I. R. Co. v. Morgan. 174 Ky. G?.3, Illinois Cent. R. Co., 162 Wis. 120, 155 192 S. W. 672; Louisville & L R. Co. N. W. 933. v. Cantrell, 175 Ky. 440, 194 S. W. 88. Southern Pac. Co. v. Martinez, 353. Railroad Crossings. 737 to avoid injury after discovery of the peril of the licensee.'-*^ But it is further held that if the railroad has customarily given signals of the approach of trains to a private crossing, and these were relied on by the persons using the crossing, and one is injured on the crossing by the failure to give the signals, a recovery may be had. It is also held that, if the crossing is one where the presence of persons is to be ex- pected, and therefore anticipated, a lookout duty rests upon the railroad company. If the crossing is a private one, in the country, and it is shown that the public generally uses the crossing with the knowledge and acquiescence of the railroad company, the presence of persons upon the crossing is to be anticipated by those operating the trains.^^ The use of a private crossing by many persons does not put upon the rail- road a lookout duty as to them, nor require an anticipation of their presence upon the track or dangerously near to it, unless the use is with the knowledge and acquiescence of the railroad. It may, however, be said that wherever, from the nature and use of a crossing by the public, the duty is im- posed upon the railroad of anticipating the presence of per- sons upon the crossings, the duty of the ones operating a rail road train to maintain a lookout, to give warnings of the ap- proach, and to have the train under control, follows.^^ Sec. 584. Negligence of railroad in operation of train — per- missive use of tracks of railroad company. Where a person driving an automobile is injured at a point where the railroad crosses a street or highway and such in- jury is due to the negligence of the company, it is liable therefor. And where such company simply permits another railroad company to run cars upon its tracks, it is declared to be the general rule that the former is liable for damages caused by the negligence of the company enjoying the per- 93. Central of Ga. Ry. Co. v. McKey, & I. R. Co. v. Cantrell, 175 Ky. 440, 13 Ga. App. 477, 79 S. E. 378; Whit- 194 S. W. 353; Louisville, etc.. R. Co. ner v. Southern R. Co., 101 S. Car. 441, v. Clore, 183 Ky. 261, 209 S. W. 55. 85 S. E. 1064. 95. Louisville & I. R. Co. v. Mor- 94. Louisville &. I. R. Co. v. Morgan, gan, 174 Ky. 633, 192 S. W. 672. 174 Ky. 633, 192 S. W. 672; Louisville 47 738 The Law op Automobiles. missive use. In this connection, in an action against a rail- road company for an injury sustained at a grade crossing by one riding in an automobile, it was decided that the case was for the jury upon evidence that the safety gates at the crossing where the accident, occurred were raised, that there was no watchman on duty, that no warning was given, that the automobile stopped at a proper place and was immedi- ately started again when a trainman of the defendant mo- tioned them to proceed, and that it was struck before it got across the tracks.^® 96. Sanders v. Pennsylvania R. Co., 225 Pa. St. 105, 73 Atl. 1010. Collisions With Street Cars. 739 CHAPTER XXII. COLLISIONS WITH STREET CARS. SBction 585. Relative rifjhts of street cars and automobiles — at intersecting streets. 586. Relative rights of street cars and automobiles — between cross- ings. 587. Relative rig'hts of street cars and automobiles — street railway company not an insurer 588. Relative rights of street cars and automobiles — burden of proof as to negligence. 589. Relative rights of street cars and automobiles — when contribu- tory negligence not necessarily a bar. 590. Relative rights of street cars and automobile? — proximate cause. .591. General duty of automobilist to exercise due care. 592. Looking for approaching street cars — in general. 593. Looking for approaching street cars — proper place for looking. 594. Looking for approaching street care — continuity of looking. 595. Looking for approaching street cars — ignorance of street car line. 596. Looking for approaching street cars — backing or tiirniing in street. 597. Looking for approaching street cars — failure to see, though looking. 598. Ix)oking for ;ipproaehing street cars — looking to rear. 599. Crossing in front of observed car. 600. I>riving auto along track — in general. 601. Driving auto along track — car from rear. 602. Driving auto along track- — ^car in front. 60.3. Speed and control of automobile — approaching imtersecting streets. 604. Speed and control of automobile — stopping. 605. Speed and control of automobile — unfamiliarity with brakes. 606. Speed and control of automobile — automobile rimning against street car. 607. Stopping auto near track. 608. Turning or backing auto in street. 609. ReliaBce on proper care by street railway. 610. Violation of regulation by autoist. 611. Auto stalled on tracks. 612. Acts in emergencies. 613. Last clear chance doetrine. 614. Function of jury. 615. Negligence of railway in general. 616. Negligence of railway- lookout. 617. Negligence of railway- speed. 618. Negligence of railway- stopping, if necessary. 619. Negligence of railway- warning of approach. 620. Negligence of railway— -private crossings. 621. Liability of street railway (■< mpany to its passenger. 622. Liability of auto driver. 740 The Law of Automobiles. Sec. 585. Relative rights of street cars and automobiles — at intersecting streets. At intersecting streets, the general rule is that a street car crossing in one direction and an automobile approaching at right angles have equal right to the use of the crossing.^ 1. Idaho. — Holmes v. Sandpoint & I. R. Co., 25 Idaho 345, 137 Pac. 532. Illinois. — Hedmark v. Chicago Rys. Co., 192 111. App. 584; Johnson Oil Re- fining Co. V. Galesburgh, etc.. Power Co., 200 111. App. 392. Maine. — Cobb v. Cumberland County Power & Light Co., 117 Me. 455, 104 Atl. 844. Maryland. — United Rys. & Elec. Co. V. State to Use of Mantik, 127 Md. 197, 96 Atl. 261. Minnesota. — Syck v. Duluth St. Ry. Co., 177 N. W. 944. New York. — Harlan v. Joline, 77 Misc. (N. Y.) 184. 136 N. Y. Suppl. 72; Ebling Brewing Co. v. Linch, 80 Misc. (N. Y.) 517, 141 N. Y. Suppl. 480; James Everard's Breweries v. New York Rys. Co., 151 N. Y. Suppl. 905. Canada. — Carleton v. City of Re- gina, 1 D. L. R. 778. "A street car has no paramount right of way over other vehicles and pedestrians at the intersections of streets where the car tracks cross other streeta than the one they run along. The preference of right of way accorded to street cars upon city streets, especially between street cross- ings, and in respect to vehicles passing in the same or opposite directions to the cars, within the space embraced within their tracks, does not apply at street crossings, and their rights to the use of the streets at crossings are precisely the same as those of pedestrians and other vehicles crossing their tracks there. Neither has a superior right to the other. The car has a right to cross, and must cross the street; and a vehicle or pedestrian has the right to cross and must cross the railroad track. The right of each must be exercised with due regard to the right of the other, in a reasonable and careful manner, and so as not un- reasonably to abridge or interfere with the rights of the other. The trolley car and the driver may each acquire a right of way to cross at street inter- sections, though it is suggested that a driver might be negligent though he has a right of way if he persists in crossing when he perceives or ought to perceive that the motorman is not j'ielding to his just claim. It is in- cumbent upon a street railway com- pany in operating its cars at public crosisings to use ordinary care to avoid injury, and this rule is applicable in thickly populated or much-used dis- tricts regardless of whether or not there is a statute or a municipal ordi- nance limiting the rate of speed. While a street railway company has a preferential right of way it has no right to proceed upon the assumption that it may take no heed of the prob- ability of encountering vehicles at crossings. A motorman in approach- ing crossings must proceed with such care and caution that he can reduce to the minimum the danger to others. A street car should be kept under the reasonable control of the motorman when crossing a street, and persons with or without vehicles, passing over the track at street crossings, may as- sume that care will be used to reduce the speed at such crossings. The rail- road company must recognize and re- spect the equal rights of all others, and cause its servants who operate the cars to exercise the care which the in- creased danger arising under the travel at street crossings demand, and others using the street must take all reason- able and proper precaution to avoid Collisions With Street Caes. 741 Each must exercise reasonable care to avoid a collision,- and neither can heedlessly continue his course on the assumption that the other will give way.^ But, if one reaches the inter- accidents. If it is the rule that cars must be under control at street cross- ings, this control, in the absence of legislative requirements, must be a reasonable control, depending upon the circumstances, and not an absolute control so that the car may be stopped immediately under all circumstances. If the motorman sees a clear track and has no occasion to stop and no reason to anticipate danger to another, it would not be negligence to maintain the usual rate of speed, even over a crossing. But if he sees, or ought to see, persons or vehicles thereon, not able to get out of his way readily, it would certainly be negligence not to have such control of his car as to be able to stop before reaching such cross- ing. The general rule is that at a street crossing, or at a place used as a street crossing, the motonnan in charge of a car approaching one dis- charging passengers is bomid to keep a sharp lookout for passengers or other persons who may attempt to cross the tracks behind the standing or moving car, to have his car under such con- trol that he can stop it upon the ap- pearance of danger, and to give such sig-nals as will usually protect travel- ers who are in the exercise of ordinary prudence." Nellis on Street Railways (2d Ed.), § 388. While street cars and other vehicles have equal rights at street intersec- tions, a vehicle is not equally entitled to cross at the same moment the car is crossing without regard to the speed at which the car is running. Hed- mark v. Chicago Rys. Co., 192 111. App. 584. A fast suburban trolley line oper- ated over the tracks of an ordinary railroad has a paramount and superior right of way over vehicles at street crossings. Letzter v. Ocean Elec. Ry. Co.. 192 N. Y. App. Div. 114, 182 N. Y. Suppl. 649. But where the railway is not operated on its own right of way, their rights are more equal. Sut- ton V. Virginia Ry. & P. Co., 125 Va. 449, 99 S. E. 670. 2. Hoff V. Los Angeles-Pac. Co., 158 Cal. 596, 112 Pac. 53; Garrett v. Peo- ples R. Co., 6 Penn. (Del.) 29, 64 Atl. 254; Joyce v. Interurban R. Co., 172 Iowa, 727, 154 N. W. 936; Louisville Ry. Co. V. Budwell. 189 Ky. 424, 224 S. W. 1065; United Rys. & Elec. Co. v. State to Use of Mantik, 127 Md. 197, 96 Atl. 261 ; Travelers Indemnity Co. V. Detroit United Ry., 193 Mich. 375, 159 N. W. 528; Granader v. Detroit United Ry. 206 Mich. 367, 171 N. W. 362; Kirk v. St. Paul City Ry. Co. (Minn.), 170 N. W. 517; Reed v. Ta- coma Ry. & P. Co. (Wash.). 188 Pac. 409. " It was Just as incumbent upon the motorman to exercise due care in running the cars over the crossing, as it was upon the chauffeur to act pru- dently in the management of the motor truck as it drew near to that place of possible danger. A due re- gard for the interests of those having an equal right to the use of the cross- ing required that the usual signal should have been given as the cars ap- proached the jimction of the streets, and that their speed should have been reduced and under ready control, es- pecially as the presence of trees in foliage obstructed the view of the track from the position which the drivers of motor trucks and other vehicles are accustomed to occupy." United Rys. & Elec. Co. v. State to Use of Mantik, 127 Md. 197. 96 Atl. 2m. And see section 591. 3. Kirk v. St. Paul City Ry. 141 Minn. 457, 170 N. W. 517; Jame« Everard's Breweries v. New York Rys. Co., 151 N. Y. Suppl. 905. 742 The Law of Automobiles. section clearly in advance of the other, in the absence of statute or ordinance regulating the priority, the law generally permits him to continue his course.^ A statute or a munici- pal ordinance may, however, give the street railway cars a priority which is to be respected by other travelers.' Or traffic on certain busy streets may be preferred to that upon less busy cross streets.^ A traffic statute requiring the driver of a vehicle approaching the intersection of a street, to grant the right of way to any vehicle coming from the right, does not necessarily apply to the motorman of a street car,'^ though in some states such a regulation may be applied as between a street ear and automobile.'* Regulations of this 4. Margolis v. Chicago Rya. Co., 205 111. App. 286-, Reed v. Public Service Ry. Co., 89 N. J. L. 431. 99 Atl. 100; Harlan v. Joline, 77 Misc. (N. Y.) 184, 136 N. Y. Suppl. 72. "The driver of the automobile would have the right of way if, proceeding at a rate of speed which under the circumstance-s of the time and locality was rea-oii- able, he should reach ,the point, .if crowing in time to go safely upon the tracks in advance of the approaching car; the latter being sufficiently dis- tant to be checked, and. if need be, stopped, before it should reach him." Reed v. Public Service Pvy. Co.. 89 N, J. L. 431, 99 Atl. 100. 5. Walker v, Rodriguez. 139 La. 251, 71 So. 499. 6. .Johnson Oil Refining Co. v. Gales- burgh, etc.. Power Co.. 200 III. App. 392; Tx)uisville Ry. Co. v. Budwell. 189 Ky. 424, 224 S. W. 1065; Cook v. United Rys. & Elec. Co. of Baltimore, 132 Md. .553, 104 Atl. 37; Boston Ins. Co. v. Brooklyn Heights R. Co., 182 N. Y. App. Div. 1, 169 N. Y. Suppl. 251 ; Ebling Brewing Co. v. Linch, 80 Misc. (N. Y.) 517, 141 N. Y. Suppl. 480. Question for jury as to right of way. — In an action for damages aris- ing from a collision between an auto- mobile proceeding in an easterly di- rection and a trolley car proceeding in a northerly direction, the court re- fused to charge plaintiff's request that if tlie front of the automobile waa from twenty to twenty-five feet from the railroad track at the time when the street car was from one-half to three-quarters of a block away, the trolley car did not have the right of way, and further refused to charge Chat if the automobile got within the square formed by the intersection of the streets before the trolley car, that at that point the trolley car would not liave, a.s matter of law, the right of way. Held, that if suoh were the factd as the jury might have found, it could not be said as a matter of law that the trolley car had the right of way, but that would be a question of fact depending on the speed at which the respective vehicles were approaching, and the court instead of declining the request should have instructed, the jury that whether the trolley car did then have the right of way depended on whether or not if the vehicles pro- ceeded without changing their speed, the trolley car would have reached the path of the automobile before that vehicle would have cleared the street car track. Boston Ins. Co. v. Brook- lyn Heights R. Co.. 182 N. Y. App. Div. 1. 169 N. Y. Suppl. 251. 7. Reed v. Public Service Ry. Co., 89 N. J. L. 431, 99 Atl. 100. And see section 246. 8. Syck v. Duluth St. Ry. Co. (Minn.), 177 N. W. 944. Collisions With Street Cabs. 743 character, however, do not relieve the party entitled to pri- ority from the duty of exercising reasonable care to avoid injury to other travelers. That is to say, he cannot blindly rely on his right of priority.® Nor are such regulations to be extended to such an extent as to place a practical prohibi- tion upon traflSc not entitled to priority,^ ^ Sec. 586. Relative rights of street cars and automobiles — between crossings. Between street crossings, the street railway cars are gen- erally accorded a preferential right to use the space allotted for their tracks.^^ That is, an automobile or other traveler 9. Sy«k V. Duluth St. Ry. Co. (Minn.), 177 N. W. 944; El Paso Elec. Ry. Co. v. Benjamin (Tex. Civ. App.), 202 S. W. 996. 10. Cook V. United Rya. & Elec. Co. of Baltimore, 132 Md. 553, 104 Atl. 37. 11. Capital Tr. Co. v. Crump, 35 App. D. C. 169; Coggin v. Shreveport Rys. Co., 147 I>a. 84 So. 902. "A street raUway company has not the exclusive right to the use of its tracks, but it has a paramount right to that of others traveling on the high- way and using it, including that por- tion occupied by the company's tracks, in common, in that portion of the highway taken up by its tracks which is between intersecting streets or street crossings. Its cars have a preference in the streets, and while they must be managed with care so as not to negligently injure persons and property in the streets, pedestrians and persons riding or driving on the higihway -must use reasonoble caution and diligence to keep out of their way, and not unnecessarily obstruct or in- terfere with their passage. This rule is foimded upon the fact that the car is confined to a fixed track and cannot turn out or leave the track, and that the convenience of the individual should be subordinated to the con- venience and accommodation of the public. The street railway company has no exclasive right to occupancy of that portion of the highway on which its tracks arc located. Other travelers have an equal right to use this, as well as different portions of the way, not only for crossing, but for progressing, subject only to the restriction that they must not unreasonably obstruct the street cars, which by the limit- ations of their construction and legal right* can proceed only on their rails. Although street cars have a superior right of way to general travel on the streets, at places other than crossings, the general public have the right to use and travel upon the entire street, including that portion of it on which the car tracks are laid, and are in no sense to be treated as trespassers for so doing. No part of a public street is withdraiATi from use by placing a street railway track upon it, such street is merely burdened with an ad- ditional easement in favor of the street railway company, with the pre- ferential right of passage over it. The right and duty of pedestrians, and the right and duty of the person in charge of the motive power of a street car when crossing streets, are re- ciprocal, and each is bound to use equal diligence to avoid collision. It is incumbent on a street railway com- pany to use such reasonable care in 744 The Law of Automobiles. may use the part of the street occupied by tracks, but he should give way to the prior right of a street car upon its approach.^- The motorman of the street car, however, must not willfully run into the vehicle.^^ When meeting an auto- mobile, the street car must be accorded the right of way along its tracks; it cannot turn out, and the automobile must give way to permit the passage.^* Sec. 587. Relative rights of street cars and automobiles — street railway company not an insurer. It is, of course, a fundamental principle in the law of street railway eompanies that they do not insure travelers from injury from their cars.^^ On the contrary, it is only liable for damages resulting from a collision between one of its cars and a motor vehicle, when some negligence on its part is shown and when absence of contributory negligence on the part of the occupants of the vehicle exists.^^ When the accident is the result of an inevitable accident, no liability is operating its cars, as to speed, giving signals, and slowing up and stopping the car when danger is imminent, as is demanded by the surroxmding cir- cumstances, and persons using the streets are also bound to stop, and, if need be turn out of the tracks, in the presence of danger. Street railway companies and travelers must each use the street with reasonable regard for the safety and convenience of the other." N-ellis on Street Railways (2d Ed.), § 387. 12. Busch V. Los Angeles Ry. Corp. 178 Cal. 536, 174 Pac. 665, 2 A. L. R. 1607; Pantagis v. Seattle El. Co., 63 Wash. 159, 114 Pac. 1044. 13. Capital Tr. Co. v. Crump, 35 App. D. C. 169. 14. Slavage v. Public Service Ry. Co., 89 N. J. L. 555, 99 Atl. 383; Pan- tages V. Seattle Elec. Co., 55 Wash. 453, 104 Pac. 629. " A traveler on a public street may lawfully use any part of the street he pleases when the same is not in the immediate use of another, even though there is no other requirement for him so to do than that of convenience. He must realize, of course, that in so far as street cars are concerned they can travel over only a given space, and that he m^ust avoid this space on the approach of a car. But his right to use any part of the street when not in use by a car is not to be governed by the question of necessity." Pantages v. Seattle El. Co., 63 Wash. 159, 114 Pac. 1044. 15. Winter v. British Columbia Elec. R. W. Co., 13 W. L. R. (Canada) 352. 16. Arkansas. — ^Miller v. Ft. Smith Light & Tract. Co., 136 Ark. 355, 206 S. W. 329. Connecticut. — Bodek v. Connecticut Co., Ill Atl. 590. Delaware. — Garrett v. Peoples R. Co., 6 Penn. 29, 64 Atl. 254. Massachusetts. — ^Lynch v. Boston Elevated Ry. Co., 224 Mass. 93, 112 N. E. 488; Boyd v. Boston Elevated Ry. Co., 224 Mass. 199, 112 N. E. 607. Michigan. — King v. Grand Rapid* Ry. Co., 176 Mich. 645, 143 N. W. 36. Collisions With Street Cars. 745 imposed on the company. ^"^ The fact of the collision does not ordinarily^ of itself, establish either the negli^-ence of the railroad company or the absence from contributory negli- gence of the complaining party.^* If neither party is guilty of negligence contributing to the collision, neither is liable for the damages sustained by the other.^'^ If a traveler unex- pectedly rushes in front of a street ear which is run at a proper speed and with due precautions for the rights of other travelers, and the motorman is unable to stop the car before a collision results, the accident is chargeable to the contribu- tory negligence of the traveler or to inevitable accident, and the street railway company is not liable.-*' But the fact that, after the discovery of the peril of an automobilist on a street car track, the motorman is unable to stop his car before strik- ing the machine, does not absolve the company from liability for its prior negligence. That is to say, if the car was run- ning at an excessive speed, the compan}^ is chargeable with negligence, though it was unable to stop after seeing a traveler dangerously near the track.^^ Nebraska. — Berto v. Omaha, etc., Co., 178 N. W. 912. Pennsylvania^ — ^Taylor v. Philadel- phia Rapid Transit Co., 55 Pa. Super. Ct. 607. Washington. — Pantages v. Seattle Elec, Co.. 55 Wash. 453, 104 Pac. 629. Canada. — Winter v. British Colum- bia Elec. R. W. Co., 13 W. L. R. (Canada) 352. 17. Mobile Light & R. Co. v. Harris Grocery Co. (Ala. App.), 84 So. 867. Unavoidable accident. — ^Where an automobile was on a street railway track the company was held not liable in damages for an injury due to a col- lision between a tram car and the automobile, it appearing that the de- fendant's car was not running at an excessive rate of speed: that the motorman was competent, and that from the time he received a signal that the motor car was in trouble he not only did everything that a reasonable man could be exepcted to do but every- thing that he could possibly do to avoid the aecident, and there being no defect in the car equipment. Winter v. British Columbia Elec. R. W. Co., 13 W. L. R. (Canada) 352. 18. Busch v. Los Angeles Ry. Corp. 178 Cal. 536, 174 Pac. 665, 2 A. L. R. 1607; Garrett v. Peoples R. Co., 6 Penn. (Del.) 29, 64 Atl. 254; Texas Electric Ry. Co. v. Crump (Tex. Civ. App.), 212 S. W. 827. 19. Boyd V. Boston Elev. Ry. Co.. 224 Mas5. 199, 112 N. E. 607. 20. Dale v. Denver City Tramway Co., 173 Fed. 787, 97 C. C. A. 511; West Helena Consol. Co. v. MeCray, 256 Fed. 753; Vanek v. Chicago City Ry. Co., 210 111. App. 148; Good Roads Co. V. Kansas City Rys. Co. (Mo. App.), 217 S. W. 858; Lindley v. Fries, etc., Co., 153 N. Car. 394, 69 S. E. 274; Gooderham v. Toronto R. Co. 80 W. N. (Canada), 3, 22 D. L. R. S98. 21. Chappell v. United Rye. Co., 174 Mo. App. 126, 156 S. W. 819. 746 The Law of Automobiles. Sec. 588. Relative rights of street cars and automobiles — burden of proof as to negligence. The cominon law rule, as a general proposition, required that the plaintiff in an action of negligence should establish, not only the negligence of the defendant, but also his own absence from contributory negUgence.^- While the common law rule remains in force in some jurisdictions,^^ the tendency in recent years has been to change the rule as to contributory negligence and to place the burden of that issue on the de- fendant.^* Indeed statutory provisions may be enacted to the extent of raising in some cases a presumption of negli- gence on the part of a street railway company when one of its cars has struck an automobile.-^ Such a presumption is rebutted when it is shown that the company did everything possible to avoid the accident.^^ Sec. 589. Relative rights of street cars and automobiles — when contributory negligence not necessarily a bar. The general rule is that any contributory negligence on the part of the driver of an automobile contributing to the acci- dent will be an absolute defense to an action against a street railway company for injuries received in a collision between his machine and one of its street cars.-" Modern innovations 82. " The general rule is that a 445, 141 N. W. 795; Dreger v. Inter- plaintiff, in an action for negligence, national Ry. Co., 190 N. Y. App, Div. must show that his injuries were not 570, ISO N. Y. Suppl. 436; Gagon v. caused by his own want of reasonable Worcester Consol. St. Ry. Co., 231 care, and whether he exercised such Mass. 160, 120 N. E. 381; Hersley v. care, and, if not, whether his failure to Kansas City Rya. Co. (Mo. App.), 214 do so contributed essentially to his in- S. W. 287. jury, are questions for the jury to de- 25. Murphy v. Georgia Ry. & Power termine from a consideration of all the Co., 146 Ga. 297, 91 S. E. 108; Krebs circumstances of the case." Clarke v v. Paseagoula St. Ry. & Power Co., 117 Connecticut St. Ry. Co., 83 Conn. 210. Miss. 771, 78 So. 753. 76 All. 523. 26. Krebs v. Paseagoula St. Ry. & 23. .Johnson Oil Refining Co. v. Power Co.. 117 Miss. 771. 78 So. 753. Galesburg, etc.. Power Co.. 200 111. 27. Calvert v. Detroit United Ry., App. 392; Boyd v. Boston Elevated Ry. •_>02 Mich. 311. 168 N, W. 508; Vogt v. Co., 224 Mass. 199, 112 N. E. 607. Uniteeen quite gener- ally held that one who drives upon a street car track in front of an ap- proaching trolley car. without looking or listening, and is injured by an en- suing collision, is guilty of such con- tributory negligence as will bar a re- covery, when, if he had looked and listened, he might or must have known of the dangerous proximity of the car. But a driver or one riding with him is not bound luider all circumstances to take the same precautions before driv- ing upon street railway tracks as is required of a pedestrian. If the driver of a vehicle does not know of the ex- istence of street railway tracks upon the street which he is^about to cross, and there is nothing in the physical conditions to impute to him such knowledge, no warning signal being sounded, the law does not impose an absolute duty upon him to look and listen for an approa<;hing car before attempting to make the crossing, and for failure to do so he is not charge- able with contributory negligence as a matter of law. The driver of a vehicle upon the streets of a city has a right to rely upon the law which requires the street railway company to give timely warnings of the approach of a car." Nellis on Street Railways (2d Ed.), § 416. 46. United States, — Dale v. Denver City Tramway Co., 173 Fed. 787, 97 C. C. A. 511. Alabama. — Ross v. Brannon, 198 .Ala. 124, 73 So. 439. California. — Hoflf v. Loa Angelea- Pac. Co., 158 Cal. 596, 112 Pac. 53; Loftus v. Pacific Elec. Ry. Co., 166 Cal. 464, 137 Pac. 34. Connecticut. — Greenhill v. Connecti- cut Co., 92 Conn. 560, 103 Atl. 646. Illinois. — Swancutt v. Trout Auto Livery Co., 176 111. App. 606; Gray v. Chicago, etc., R. Co., 155 111. App. 428; Bastien v. Chicago City Ry. Co., 189 III. App. 369; Hack v. Chicago Interurban Traction Co., 201 111. App. 572; Garden v. ( hicago Rys. Co., 210 .111. App. 155. Iowa. — Flannery v. Interurban Ry. Co., 171 Iowa, 238, 153 N. W. 1027; Bensing v. Waterloo, etc., R. Co., 179 N. W. 835. Kansas. — Shelton v. Union Traction Co., 99 Kans. 34, 160 Pac. 977. Louisiayia. — Walker v. Rodriguez, 139 La. 251, 71 So. 499. Maryland. — State to Use of Stumpf V. Baltimore & B. Elec. Rys. Co., 133 Md. 411, 105 Atl. 532. Michigan. — Puffer v. Muskegon, etc., Co., 173 Mich. 193, 139 N. W. 19; Don- lin v. Detroit United Ry., 198 Mich. 327, 164 N. W. 447; Congdon v. Mich- igan United Traction Co., 199 Mich. 564, 165 N. W. 744; Hickey v. Detroit United Ry., 202 Mich. 496* 168 N. W. 517; Gillett v. Michigan United Tract. Co.. 205 Mich. 410. 171 N. W. 536. Minnesota. — Syck v. Duluth St. Ry. Co., 177 N. W. 944. Missouri. — Chappell v. United Rye. Co., 174 Mo. App. 126, 156 S. W. 819; Voelker Products Co. v. United Rys. Co., 185 Mo. App. 310, 170 S. W. 332; England v. Southwest Missouri R. Co. (Mo. App.). 180 S. W. 32. Xorfh Carolina. — Lindlev v. Fries, 752 The Law of Automobiles. is expressed as that of looking and listening.*' Moreover, under some circumstances, as where the view of the track is obstructed, it may be that the automobilist should stop his machine before attempting the crossing.*^ The tracks, of themselves, are a signal of danger, and impose a correspond- ing degree of care on the automobilist.'*^ Failure to look and etc., Co., 153 N. Car. 394, 69 S. E. 274; Kime v. Southern Railway Co., 153 N. Car. 398, 69 S. E. 274. Pennsylvania. — Clifford v. Philadel- phia Rapid Transit Co., 112 Atl. 468; Lessig V. Reading Transit & L. Co., 113 Atl. 381; Hill v. Philadelphia Rapid Transit Co., 114 Atl. 634; Miller North Broad Storage Co. v. Philadel- phia Rapid Transit Co., 62 Pa. Super. Ct. 568. Rhode Island. — Brien v. Rhode Is- land Co., 99 Atl. 1026; Hambly v. Bay State St. Ry. Co., 100 Atl. 497; Ent- wistle V. Rhode Island Co., 103 Atl. 625; Levein v. Rhode Island Co., 110 Atl. 602; King v. Rhode Island Co., 110 Atl. 623. l/taTi.— Oswald v. Utah L. & R. Co., 39 Utah 245, 117 Pac. 46. Washington. — Bowden v. Walla Walla Valley Ry. Co., 79 Wash. 184. 140 Pac. 549; Briscoe v. Washington- Oregon Corp., 84 Wash. 29, 145 Pac. 995; Herrett v. Puget Sound, etc., P. Co., 103 Wash. 101, 173 Pac. 1024; Heath v. Wylie, 109 Wash. 86, 186 Pac. 313. West Virginia. — Helvey v. Prince- ton Power Co., 99 S. E. 180. Canada. — Carleton v. City of Re- gina, 1 D. L. R. 778. 47. Alabama. — Ross v. Brannon, 73 So. 439. California. — Hoff v. Los Angeles- Pac. Co., 158 Cal. 596, 112 Pac. 53; Loftus V. Pacific Elec. Ry. Co., 166 Cal. 464, 137 Pac. 34. Delaware. — Garrett v. People's R. Co., 6 Penn. 29, 64 Atl. 254. Indiana. — Union Traction Co. v. Moneyhun (Ind. App.). 127 N. E. 443. Louisiana. — Walker v. Rodriguez, 139 La. 251, 71 So. 499. Missouri. — Chappell v. United Rys. Co., 174 Mo. App. 126, 156 S. W. 819; Voelker Products Co. v. United Rys. Co., 185 Mo. App. 310, 170 S. W. 332. North Carolina. — Lindley v. Fries, etc., Co., 153 N. Car. 394, 69 S. E. 274; Kime v. Southern Railway Ca, 153 N. Car. 398, 69 S: E. 274. Pennsylvania. — Benamy v. Reading Transit & Light Co., 112 Atl. 437. Wisc07isin. — Dahinden v. Milwaukee Elec. Ry. & L. Co., 171 N. W. 669; Moody V. Milwaukee Elec. Ry. & L. Co., 180 N. W. 266. Distance. — A driver is not required as a matter of law to look three or four blocks. Coons v. Olympic L. & P. Co. (Wash.), 191 Pac. 769. 48. State to Use of Stumpf v. Bal- timore, etc., Rys. Co., 133 Md. 411, 105 Atl. 532. 49. Loftus V. Pacfic Elec. Ry. Co., 166 Cal. 464. 137 Pac. 34; Chappell v. United Rys. Ce., 174 Mo. App, 126, 156 S. W. 819. " It is unnecessary to enlarge upon the well-settled rule that a railroad track is in and of itself a sign of danger, and that one approach- ing such track with intent to cross it is bound to exercise his faculties of sight and hearing in order to ascer- tain whether a train is approaching." Herbert v. S. P. Co., 121 Cal. 227, 53 Pac. 651 ; Zibbell v. S. P. Co., 160 Cal. •237, 116 Pac. 513. "While these re- quirements of care have usually been applied to persons seeking to cross the track of a steam railroad, they are al- so fairly applicable to crossings over the track of an electric railway, con- Collisions With Street Cars. 753 listen for approaching trains at a steam railroad crossing is negligence per se,^^ but the rule is not so strict at street rail- way crossings ; in the latter class of cases, a question for the jury may be presented, though the negligence of the traveler would have been declared as a matter of law had the crossing been that of a steam railroad.^^ Sec. 593. Looking for approaching street cars — proper place for looking. When approaching a street railway track, the duty of look- ing for cars implies that the required observation shall be made at a place where looking will be effective ; that is, at a place from which he can stop his machine if necessary to avoid a collision.^- The taking of an observation when some considerable distance from the track, with a complete failure to again look for cars before reaching the traok, may be con- tributory negligence as a matter of law.^^ Thus, where one looked for cars when he was about sixty feet from the track, structed and operated as the defend- ant's road was." Loftus v. Pacific Elec. Ry. Co., 166 Cal. 464, 137 Pac. 34. 50. Section 557. 51. Dahinden v. Milwaukee Elec. Ry. & L. Co. (Wis.), 171 N. W. 669. And see section 614. 52. Walker v. Rodriguez, 139 La. 251. 71 So. 499; Daiill v. New Orleans Ry. & L. Co. 147 La. 1012, 86 So. 477; Foos V. United Rys. & Elec. Co. (Md.), 110 Atl. 849; Donlin v. Detroit United Ry. 198 Mich. 327, 164 N. W. 447; Congdon v. Michigan United Traction Co., 199 Mich. 564, 165 N. W. 744; Brien v. Rhode Island Co. (R. I.), 99 Atl. 1026; Entwistle v. Rhode Island Co. (R. I.). 103 Atl. 625. "No one can doubt that the law enjoins the duty, not only of listening for the ap- proach of the car, but of looking at a point where the vision is open for a considerable distance, at least when considered with reference to the known likelihood of cars to approach at a 48 high rate of speed." Voelker Products Co. V. United Rys. Co.. 185 Mo. App. 310, 170 S. W. 332. Probabilities not determinative. — In an action where the defense is that plaintiff was guilty of contributory negligence in attempting to cross a street car track with his automobile without ascertaining in sufficient sea- son whether cars were approaching, the question of contributory negligence is to be determined by the situation when plaintiff was at such a distance before going on the track that he could control his machine and avoid the danger, rather than by probabilities. Hack V. Chicago & Interurban Tract. Co., 201 111. App. 572. 53. Gray v. Chicago, etc. R. Co.. 155 111. App. 428; Congdon v. Michi- gan United Traction Co.. 199 :Mich. 564, 165 N. W. 744; Shore v. Dunham (Mo. App.), 178 S. W. 900; England V. Southwest Missouri R. Co. (Mo. App.), 180 S. W. 32; Brien v. Rhode Island Co. (R. I.), 99 Atl. 1026. 754 The Law of Automobiles. but attempted to drive across the track without looking again, when the track was straight and unobstructed for six hun- dred feet, it was held that he was guilty of contributory negligence.^* And when one looked for approaching cars when about thirty feet from the track at a place where his view was very limited, it was held that he was guilty of negUgence in failing to look again before reaching the track.^^ But where there is no car in sight when the driver of the machine starts across the street, he is not necessarily guilty of negligence because he does not thereafter look for a car.^^ The operator of a motor vehicle should look for approaching cars at a point where the view is open for a distance propor- tionate to the probable speed of cars at that point.^^ If the view is obstructed as the driver approaches, the duty to use his faculties before going upon the track, continues, and he should at some reasonable point before reaching the track look for cars,^^ even though it is necessary for him to stop in order to get an effective view of the track.^^ A lookout by the traveler at a point where he cannot see more than sixty feet is not sufficient to establish his exercise of care, for the question of his care depends on his precautions when he is at such a distance from the track that he can control his ma- chine and avoid the danger of the approaching car.^^ When passing behind a street car on one track, he must use his senses to discover whether there is a car approaching on the parallel track. ^^ 54. Puffer v. Muskegon, etc., Co., 102 Kans. 268, 170 Pac. 397; Donlin v. 173 Mich. 193. 139 Nu W. 19. Detroit United Ry., 198 Mich. 327, 164 55. Brien v. Rhode Island Co. (R. N. W. 447; Voelker Products Co. v. I.). 99 Atl. 1026. United Rys. Co., 185 Mo. App. 310, 170 56. Brandt v. New York Rys. Co., S. W. 332. And see section 604. 85 Misc. (N. y.) 40, 147 N. Y. Suppl. 60. Hedmark v. Chicago Rys. Co., 17. See also Reichle v. Detroit United 192 111. App. 584. Ry., 203 Mich. 276, 168 N. W. 972. 61. Schrankel v. Minneapolis St. Ry. 57. Voelker Products Co. v. Unite