Изображения страниц

this date, therefore defendants are in open binding on persons who in good faith acquire court three times audibly called and come subsequent liens, is nevertheless good between not, but herein wholly make default. The the parties." The statutes of this state, auplaintiff, W. Bent Wilson, was sworn and ex thorize service of process on the defendant amined, and his evidence heard; and the in cases before a justice of the peace “by leavcourt, being fully advised in the premises, ing a copy thereof at his last usual place of finds that there is due and owing to the residence." Section 1520, Burns' Ann. St. 1901 plaintiff from the defendant the sum $35.25 (section 1452, Rev. St. 1881; section 1452, and costs and charges herein. It is there Horner's Ann. St. 1901). It has been held fore considered and adjudged by the court that service by copy is not constructive, but that the plaintiff do have and recover of and actual, service and is conclusive between the from the defendant the sum of $35.25 and the parties. Pigg v. Pigg, 43 Ind. 117; Smith costs and charges and accruing costs of this v. Noe, 30 Ind. 117; Williams v. Hitzie, 83 writ. Witness my hand and seal this 26th Ind. 303; Hume v. Conditt, 76 Ind. 598, 600, day of June, 1899." That no fraud was com and cases cited; Splahn v. Gillespie, 48 Ind. mitted by the constable in his service of said 397, 405, 407, 410; Dunkle v. Elston, 71 Ind. process or in his return indorsed thereon. 585; Sturgis v. Fay, 16 Ind. 429, 79 Am. The conclusions of law stated were in favor Dec. 440. If, however, the process was not of appellees.

served by the officer, and false return was Appellants insist that said judgment is procured by the fraudulent acts of the plainvoid: (1) Because the statement of the cause tiff, or by a conspiracy between him and the of action is insufficient. (2) Because the officer, the same is not conclusive. CavanChristian names of the Meyer brothers are not augh v. Smith, 84 Ind. 380, 382, 383; Brown stated, and there is no allegation that the V. Eaton, 98 Ind. 591, 594; Krug v. Davis, same are unknown. (3) Because the return 85 Ind. 309; Walker v. Robbins, 14 How. 584, of the constable as to service of the summons 14 L. Ed. 552; Knox County V. Harshman, did not show a legal service thereof, in this: 133 U. S. 152, 10 Sup. Ct. 257, 33 L. Ed. 586; that (a) each defendant in said cause was Johnson v. Jones, 2 Neb. 133; Taylor v. entitled to a copy, and the return shows a Lewis, 2 J. J. Marsh (Ky.) 400, 19 Am. Dec. service by one copy; (b) that the return on 135; Thomas v. Ireland, 88 Ky. 581, 11 S. ly shows a service on "the defendant," when W. 653, 21 Am. St. Rep. 356. It is settled there was more than one defendant, and the law in this state that, even where the court one served is not designated; (c) that service is one of inferior jurisdiction, as a justice as shown by leaving a copy at the last and of the peace or board of commissioners, and usual place of residence is not a compliance there is a defective notice, and the court with the statute. This court has held that a has passed upon its sufficiency, as a general judgment rendered upon an insufficient com rule the judgment in such a case is not subplaint is not void for that reason. State v. ject to collateral attack. Freeman on JudgKing, 94 Ind. 366, 370; Abdil v. Abdil, 33 ments, $ 126; McAlpen v. Sweetser, 76 Ind. Ind. 460, 462; Fritz v. State, 40 Ind. 18, 21 78; Muncey V. Joest, 74 Ind. 409; Stout v. 23; State y. George, 53 Ind. 434, 438; Jarrell Woods, 79 Ind. 108; Brown v. Goble, 97 Ind. v. Brubaker, 150 Ind. 260, 272, 49 N. E. 1050; 86, 89. Maynard v. Waidlich, 156 Ind. 562, 575, 60 It is not necessary, however, to decide N. E. 348; 2 Van Fleet's Former Adjudica whether said judgment was void for want of tion, p. 767. A judgment in favor of or jurisdiction over the defendants in said acagainst a firm in their firm name, or in favor tion before the justice of the peace, for the of or against a person by his surname alone, reason that it was not alleged in the comor by name in which an initial letter is used, plaint in this case and proved at the trial instead of his Christian name, is not void, but that appellants had a meritorious defense is merely irregular. Hopper v. Lucas, 86 Ind. to said action in which said judgment was 43; Rogers v. Ware, 2 Neb. 49, 50, 52, 53; Jones rendered. The weight of authority is that, v. Martin, 5 Blackf. 351; Bridges v. Layman, where one seeks to enjoin a judgment as void 31 Ind. 384, 386; Peden's Adm'r v. King, 30 Ind. on account of want of service of process, there 181, 183; Thatcher v. Coleman, 5 Blackf. 76; being no appearance to the action, it is necCummins v. Peed, 109 Ind. 71, 72, 9 N. E. 603; essary to allege and prove that he has a McGaughey v. Woods, 106 Ind. 380, 382, 7 N. meritorious defense to the action in which E. 7; Ilahn v. Behrman, 73 Ind. 120, 122, the judgment was rendered. 2 Freeman on 123; Morningstar v. Wiles, 96 Ind. 458; 1 Judgments (4th Ed.) 88 495, 498, pp. 876-878; Freeman on Judgments (4th Ed.) p. 280; 20 1 Black on Judgments (2d Ed.) § 376; High Ency. of Pleading & Practice, 1131, 1183. on Injunctions (4th Ed.) 88 126, 129a; WilThis court said in McGaughey v. Woods, liams v. Hitzie, 83 Ind. 303, 308, 309; State 106 Ind., on page 382, 7 N. E., on page 8: v. Hill, 50 Ark. 458, 8 S. W. 401; Stewart v. “Where a judgment was taken in favor of Brooks, 62 Miss. 492; Newman v. Taylor, 69 partners by their firm name against a defend Miss. 670, 13 South. 831; Mass. Ben. Life Ass'n ant by the name of H. H. Greenup, it was v. Lobmiller, 20 C. C. A. 274, 74 Fed. 23; held the judgment was not a nullity.

Crafts v. Dexter, 8 Ala. 767, 42 Am. Dec. A judgment which omits the Christian names 666, note at page 669; Dunklin v. Wilson, of the parties altogether, wliile it may not be 64 Ala. 108; Rice v. Tobias, 83 Ala. 318, 3


South. 672; 89 Ala, 214, 7 South. 765; Raisin not interfere, either to stay proceedings or Fertilizer Co. v. McKenna, 114 Ala. 274, 21 to set aside a judgment, on the ground of South. 816; Gifford v. Morrison, 37 Ohio St. want of jurisdiction of the person of the 502, 41 Am. Rep. 537; Sharp v. Schmidt, 62 judgment defendant. In Williams v. Hitzie. Tex. 203; Gregory v. Ford, 14 Cal. 138, 73 83 Ind. 303, it was held that the collection of Am. Dec. 639; Texas Mexican R. Co. v. a judgment rendered before a justice of the Wright, 31 L. R. A., note pages 207, et seq; peace would not be enjoined for want of Burch v. West, 134 Ill. 258, 25 N. E. 658; jurisdiction, where there was no claim of Piggott v. Addicks, 3 G. Greene (Iowa) 427, payment of the judgment or denial of the 56 Am. Dec. 547; Crawford y. White, 17 cause of action upon which it was rendered." Iowa, 560; Coon v. Jones, 10 Iowa, 131; Fow There are some exceptions to this rule in this ler v. Lee, 10 Gill & J. (Md.) 363, 32 Am. Dec. state, but appellants have not by allegation 172; Harris v. Gwin, 10 Smedes & M. (Miss.) and proof brought themselves within any of 563; Wilson 'y. Shipman, 34 Neb. 573, 52 N. them. W. 576, 33 Am. St. Rep. 660, 662; Janes v. Judgment affirmed. Howell, 37 Neb. 320, 55 N. W. 965, 40 Am. St. Rep. 494; Pilger v. Torrence, 42 Neb. 903, 61 N. W. 99; Winters v. Means, 25 Neb. 241, 41 N. W. 157, 13 Am. St. Rep. 489; MCINTYRE V. ORNER. (No. 20,610.) Spooner v. Leland, 5 R. I. 348; Crocker V. (Supreme Court of Indiana. Jan. 30, 1906.) Allen, 34 S. C. 152, 13 S. E, 650, 27 Am. St. 1. HIGHWAYS-USE AUTOMOBILES—CARE Rep. 831; Stokes v. Knarr, 11 Wis. 389; Far REQUIRED well Co. v. Hilbert, 91 Wis. 437, 65 N. W. 172,

Inasmuch as automobiles have been recog. 30 L. R. A. 235; Ford v. Hill, 92 Wis. 188,

nized by Acts 1905, p. 202, c. 123, as lawful

vehicles, if the operation of an automobile re66 N. W. 115, 53 Am. St. Rep. 902, 904 and sults in injury to one traveling in another mode, cases cited; Jones y. Cullen, 142 Ind. 335, 348, the autoist is not liable for the injury, unless

he used the machine at a time, in a manner, 349, 40 N. E. 124, and cases cited.

or under circumstances inconsistent with a In Williams v. Hitzie, 83 Ind. 303, above

proper regard for the rights of others. cited, this court said, at pages 308, 309: 2. SAME-NEGLIGENCE IN OPERATING AUTOMO "Freeman, after stating that it has been held BILE. that, when judgment has been rendered

It was negligence for an autoist to drive

his automobile at the rate of more than 15 against a party without service of process

miles an hour toward a team of horses which and without his knowledge, he may be re were frightened at the machine, where the lieved without showing merits, adds: “But autoist saw, or could have seen, when 300 feet the better established rule undoubtedly is,

away, that the horses were frightened.

3. SAME_CONTRIBUTORY NEGLIGENCE. that notwithstanding an alleged want of

One riding in a carriage, who saw that the service of process, a court of equity will not

horses were frightened at an approaching autointerfere to set aside a judgment until it mobile, was not guilty of contributory negliappears that the result will be other or dif gence in remaining in the carriage. ferent fronu that already reached.' Stokes v.

4. NEGLIGENCE-QUESTIONS FOR JURY, Knarr, 11 Wis. 391. In the last case cited

Where, under the rules of law, a giren

class of facts, embodying, all the controlling the court says: “We do not deem it neces facts and evidence and the reasonable infersary to decide whether the justice of the ences arising therefrom, constitute negligence peace lost jurisdiction of the case.

or due care, it is proper to so instruct the

jury. It may be conceded for the purpose of this

[Ed. Note.-For cases in point, see vol. 37, case that he did, and we still think it does Cent. Dig. Negligence, $8 277–284, 293–297.] not follow that a court of equity will inter

5. HIGHWAYS OPERATION OF AUTOMOBILE fere to enjoin the judgment. Those courts NEGLIGENCE-INSTRUCTIONS. do not interfere merely for a defect of juris Where an autoist, when at the distance of diction in the court where the judgment is

300 feet from a team of horses, saw the team

trying to break away with fright, it was his rendered. 2 Story, Eq. Jur. $ 898. On the

duty, under the express provisions of Acts 1905. contrary, they interfere only to prevent in p. 202, c. 123, to stop or check up, and his justice. And if a party can say nothing

failure to do so not excusable on the against the justice of a judgment, can give

ground that he did not have the opportunity to

do so because of the necessity of his keeping his no reason why in equity he ought not to pay attention fixed on the road, in order to avoid it, a court of equity will not interfere, but holes and obstacles. will leave him to contend against it at law,

6. SAME. in the best way he can." In Woods v. Brown,

The failure of the autoist to stop on

perceiving the fright of the team was not ex93 Ind. 164, at page 168, 47 Am. Rep. 369,

cusable because of the fact that he had previously this court said: “It has already been ob passed the same team, and that the fright of served that the complaint fails to disclose the same had not caused any injury to the that Pierson has, or ever had, any valid or

occupants of the carriage.

7. TRIAL – INSTRUCTIONS — CONSTRUCTION OF meritorious defense to the causes of action on

CHARGE AS A WHOLE. 'which the judgments were predicated. Nor In action for injuries, an instruction defindoes the complaint show that anything has ing negligence was not erroneous, because it occurred since their rendition calling for

did not state what constituted contributors

negligence, where another instruction outlined equitable relief. In such case the better opin

the circumstances under which plaintiff should ion seems to be that a court of equity will be found guilty of contributory negligence.


[ocr errors]
[ocr errors]

& HIGHWAYS — FRIGHTENING ANIMALS - AC ing his machine in an unusual and extra-
In an action for injuries owing to plain-

ordinary manner by going at a high rate of
tiff's borses having been frightened by defend speed when meeting teams. On the way to
ant's automobile, an instruction that if plain Waterloo appellant drove his automobile past
tiff, in standing up in her carriage and trying the carriage in which the plaintiff was rid-
to get out, acted under a sudden fright and
impulse created by peril, and in so doing acted

ing, greatly frightened the horses, and causas "ordinarily prudent persons might act" under ed them to crowd to the side of the road. the circumstances, it was a question for the Both appellee and appellant saw the fright jury whether she was pegligent, was not er of the horses. Appellant proceeded with his roneous on the theory that prudent men often act imprudently.

party to Waterloo, remained but a short 9. TRIAL-SUBMISSION OF INTERROGATORIES

time, and entered upon his return to Auburn. COMMENT BY COUNSEL.

A short distance from the former town be The court having indicated an intention

met the funeral party. The hearse was 500 to submit interrogatories requested by defendant, it was not error to permit plaintiff's coun

feet ahead of the carriage. A short distance sel to read and comment on them to the jury.

before meeting the hearse, appellant drove

his automobile to one side of the road and Appeal from Circuit Court, Whitley Coun

was about to stop when the driver of the ty; Jos. W. Adair, Judge.

hearse signaled him to come on. Appellant Action by Susan Orner against William

proceeded, and, having passed the hearse, H. McIntyre. From a judgment in favor of

he speeded his automobile towards the carplaintiff, defendant appeals. Transferred

riage at more than 15 miles an hour, the from Appellate Court under section 1337u,

machine puffing and making a great noise, Burns' Ann. St. 1901. Affirmed.

and, when it approached within 200 feet of J. E. Rose, T. R. Marshall, W. F. Mc

the carriage, the horses, in apparent fright, Nagny, and P. H. Clugston, for appellant. began crowding to one side, and, when withChas. F. Holler, A. A. Adams, and L. H. in 15 to 20 feet of the plaintiff, whirled back Wrigley, for appellee.

into the road, and, in turning the carriage,

cramped and broke a fore wheel, tipping the HADLEY, J. Appellee successfully prose- | vehicle, and causing the plaintiff to be cuted this action against appellant to re thrown out and injured. The driver held the cover damages for injuries claimed to have

lines firmly and taut, and an ordinarily caubeen received by appellant's negligence in tious man could not have driven the team driving an automobile on the public highway. past the automobile, because it was apThe action is based upon the following facts | proaching at a high rate of speed. The drivdisclosed by the jury in answers to inter er did not request, nor signal, appellant to rogatories: The plaintiff, being 54 years of stop the machine; but, when the horses age and a resident of South Bend, about 3 whirled around, appellant threw off the powo'clock p. m. of November 1, 1902, left the er and applied the brake, and stopped the city of Auburn with the body of her deceased automobile when within 15 or 20 feet of son to drive across the county to the town of the plaintiff. The team manifested fright Waterloo, there to take a train for home. when the automobile was 200 feet away, The plaintiff and her son occupied the rear seeing which, an ordinarily prudent man seat, and Mr. Ling and Mr. Mayfield, friends would have anticipated that the further forof her deceased son, occupied the front seat, ward movement of the machine would be of a carriage, which, with team to draw it, likely to cause injury to the occupants of had been procured at a livery stable for the the carriage. If appellant had run his mapurpose, but without the knowledge and ap chine at less speed, it would have made less proval of the plaintiff. One of the horses noise; and he operated it in a careless manwas to some extent afraid of automobiles and | ner, because he speeded it too fast and too the other was not. Ling, accustomed to drive close to the team. ing and managing horses, drove the team There are two paragraphs of complaint, without approval, but without any expressed both proceeding upon the theory that the objection from the plaintiff. The road from plaintiff was injured by the negligence of apAuburn to Waterloo runs in a northeasterly | pellant in continuing to run his automobile direction. On the journey the hearse pre on the highway at an excessive speed, and ceded the carriage containing the plaintiff. failing to stop, or slow up, when, as alLater in the same afternoon appellant, with leged in one paragraph, "he saw from the three other gentlemen, left Auburn by the frightened condition of plaintiff's horses same road for Waterloo in a gasoline auto that to proceed further would result in inmobile belonging to appellant. The machine jury to the plaintiff," and, in the other, by was two-seated, could speed 20 miles an the exercise of reasonable care he might hour, and exploded its gasoline in a chamber have seen that fact. As relating to the which to some extent deadened the sound. question of negligence the complaint charAppellant drove and managed the machine. ges "that as said defendant approached said On the journey it was necessary for appel- | carriage with his said automobile, and when lant to look ahead to avoid holes and ob he was yet more than 300 feet distant therestructions in the road; but on the occasion of from, the horses attached to said carriage, the plaintiff's aceident appellant was operat drawing the plaintiff and her said compan

[ocr errors]


ions, became badly frightened at the ap by the observance of ordinary care to avoid proach of said automobile, the loud noise receiving injury, as well as from inflicting it made by the propulsion thereof, and the upon others.” Within these principles it was operation of its said motor, the high and incumbent upon appellant to take notice, bedangerous rate of speed-more than 15 miles

common knowledge that motor caran hour-at which the same was approach- riages are, as yet, usually strange objects ing them, and the size and appearance of to horses, and likely to startle them when said vehicle, and plunged, reared, shied, and driven up in front at a rapid rate. We asexbibited all of the evidences of fear usually sume, therefore, that he knew, when he met manifested by horses when greatly frighten the plaintiff's carriage on his return to Aued, * *

and said defendant, well know burn, especially after the fright he observed ing said frightened condition of said horses. in the horses as he passed them on the way well knowing, also, that his said automo to Waterloo, that his car, operated in the bile, the approach thereof at said high and manner and at the speed described, was highdangerous rate of speed, and the noise made ly calculated to frighten the horses, and lithereby, were the cause of such fright, and able to cause them to injure the occupants well knowing that the nearer approach of of the carriage. With such knowledge it was his said automobile at said speed and under appellant's duty to keep a lookout ahead, and, the circumstances aforesaid would greatly as he approached the carriage, note the efincrease the fright of said horses, without | fect of his onward movement upon the horses, exercising or using any care whatever, care and when he saw, or could have seen by lessly, recklessly, and negligently propelled the exercise of reasonable caution, that the his said automobile at said high and danger: horses were under excitement forcibly crowdous rate of speed up to and until the same ing off the road, and manifesting unmistakwas within less than 15 feet of said horses able fright, ordinary care required him to before the same was stopped or the speed slow up, stop his machine, or do whatever thereof checked,

causing said was reasonably required to relieve the perborses to whirl around in said highway and sons in the carriage of their perilous situarun away to the south along the same, break tion. In Shinkle v. McCullough (1903) 116 ing one of the wheels of said carriage to Ky. 960, 77 S. W. 196, 105 Am. St. Rep. 249. which they were attached, and throwing the it is said: “If appellant knew, or could plaintiff with great violence out of said car have known by the exercise of ordinary care, riage upon the hard ground, whereby," etc. that the machine under his control had so Is this a sufficient averment of negligence? far excited appellee's horse as to render him

The employment of the automobile on the dangerous and unmanageable, • it was his dupublic highways, as a means of transporta- ty to have stopped his automobile and taken tion, has been recognized in this state as a such other steps for appellee's safety as orlawful use of the road (Acts 1905, p. 202, c. dinary prudence might suggest." See, also, 123; Indiana Springs Co. v. Brown (Ind. to same effect, Christy v. Elliott, 216 Ill. 31, Sup.) 74 N. E. 615); and if it results in caus 74 N. E. 1035. This, it is alleged, appellant ing injury to one traveling by another mode, did not do, but, on the contrary, upon seeing the autoist cannot be held liable for the injury, the plaintiff's team rearing and plunging unless it is made to appear that he used the with fright, when 300 feet away, knowingly machine at a time, or in a manner, or under drove his machine into their faces at more circumstances inconsistent with a proper re than 15 miles an hour, without stopping or gard for the rights of others. There is noth checking his speed, until within 15 or 20 ing dangerous in the use of an automobile when feet of the plaintiff. As a charge of neglimanaged by an intelligent and prudent driver. gence, this is far within the limits of the Its guidance, its speed, and its noise are all rule. subject to quick and easy regulation, and Appellant insists that the complaint shows under the control of a competent and con upon its face that appellee was guilty of considerate manager it is as harmless, or may | tributory negligence. The claim springs soon become as harmless, on the road, as from the averınents “that the plaintiff was other vehicles in common use. It is the man traveling with three other persons in a twoner of driving an automobile on the highway, seated covered carriage, drawn by a team too often indulged in by thoughtless pleasure of gentle, well-broken horses, which were seekers and for the exploitation of a machine, in charge of, and driven by, a competent that constitutes a menance to public safety. and careful driver, who sat upon the front While it is the law that automobiles, subject seat of said carriage while the plaintifr to statutory restrictions, have equal right and her son occupied the rear seat,” and with other vehicles to occupy the highways, "on the road to Waterloo appellant, in his it must be borne in mind that this equality automobile, rapidly and with great noise of right imposes the reciprocal duty of mana. passed the carriage in which the plaintiff ging one's vehicle, whatever its character, was riding, whereby the horses attached to with care and caution to avoid causing in said carriage became greatly frightened, and jury to others with equal right. As we said reared, plunged, and became almost unman. in Indiana Springs Co. v. Brown, supra : ageable.” It is argued that, since it is "Each is required to regulate his own use shown that appellee occupied the carriage

[ocr errors][ocr errors][ocr errors]

when appellant drove his automobile by it

of facts, and direct the jury, if they found on the road to Waterloo, we must presume, them proved, they should find the existence because not denied, that she, as well as ap of negligence; and equally erroneous if the pellant beheld the fright and conduct of unstated facts would even tend to render the horses; and when appellant was about the question of negligence doubtful, or such to meet the carriage on his return from Wa.

as equally prudent persons would characterterloo, and saw, as alleged, the horses plun ize differently. But the controlling facts of ging and crowding when the automobile was a case may be of a character and so fully 300 feet distant, we must also presume that stated as to exclude all reasonable and possi. appellee in the carriage saw the automobile ble modifying inference, and in such cases we coming as far as appellant in the automobile see no impropriety in the court informing the saw the frightened horses plunging, and, so jury whether or not such facts if established seeing and knowing the increasing peril, it are sufficient in law. In so doing there is on was negligence on her part to remain in the invasion of the province of the jury. The carriage and make no effort to reach a place of facts are for the jury, and the law for the safety or have the horses secured. The spe court. If under the rules of the law a given cific allegations of the complaint are not suf class of facts, embodying all the controlling ficient to overcome the presumption of non facts in evidence and the reasonable infercontributory negligence created by the stat ences arising therefrom, constitute negliute. Greenawaldt v. Lake Shore, etc., R. Co. gence, or due care, it is proper for the trial (Ind. Sup. last term, April 7, 1905) 74 N. E. judge to tell the jury so for their guidance 1081. If we could presume that the plain in returning their verdict. His primary duty tiff saw the automobile coming when 300 feet on the bench is to see that the law is properly away, and the team was at the time rearing applied to the facts, and in principle he is and plunging, we could not presume that her

doing the same thing whenever he is called failure to jump out of the carriage was neg

upon to consider the correctness of a general ligence. It might have been far more dan

verdict in the light of the special facts upon gerous under the circumstances to attempt

which it is founded as disclosed by answers to alight than to remain seated in the car.

to interrogatories. The general rule is thus riage. We think the second paragraph of the

stated in Shoner v. Pennsylvania Co., 130 complaint is good and that the demurrer

Ind., at page 177, 28 N. E., at page 618. "In thereto was properly overruled.

cases involving questions of negligence, the Complaint is made of the giving and re

rule is now settled that, where the facts are fusing of certain instructions. In the third

undisputed (or found by a jury to exist) and instruction given, the court, after directing

the inferences which may be drawn from the jury that, if they found from the evidence

them are not equivocal and can lead to but the existence of certain enumerated facts re

one conclusion, the court may adjudge as

matter of law that there is, or is not, neglilating to the conduct of appellant in the op

gence." To same effect see Mann v. Belt, eration of his automobile at the time of the

etc., R. Co., 128 Ind. 139, 141, 26 N. E. 819; plaintiff's accident continued, "If the facts

Board v. Bonebrake, 146 Ind. 311, 316, 45 N. established by the evidence are as above

E. 470; Oleson v. Lake Shore Ry. Co., 143 Ind. stated, then you should find for the plain

405, 42 N. E. 736, 32 L. R. A. 149. tiff, unless you should also find it established

It is not claimed by appellant that the by a fair preponderance of the evidence that there was contributory negligence on the

facts summed up in the instruction were in

sufficient of themselves to constitute neglipart of, or imputable to, the plaintiff, which

gence; but he claims that the hypothesis precludes a recovery by her.”

should have embraced an additional fact It is objected, first, that the instruction is

shown by the evidence which tended to exerroneous, because the court had no right

cuse him for not heeding the fright of appelto declare that any state of facts-if the

lee's horses and stopping bis automobile question of negligence was to go to the jury

sooner, namely, that he, as manager of the constituted negligence; that the most the

auto, did not have time and opportunity to court could have properly done was to set

look, because it was necessary for him to out a group of facts and authorize the jury

keep his eyes and attention fixed on the track to construe them under the law, with all the

of the road to enable him to guide the maother facts and circumstances in evidence, in

chine safely by, avoiding chuck holes and determining the question of negligence. We other obstacles. We are unwilling to admit think the rule here contended for by appel

that the omitted fact would have furnished lant is too narrow. There are frequent cases,

appellant with a shadow of justification for no doubt, where certain facts in evidence

continuing to speed his machine at more than may be selected which, if standing alone, 15 miles an hour to within 15 or 20 feet of would constitute negligence, but under which, the carriage, and until the horses had whirled when considered with other facts and circum

around, thrown the plaintiff out, and taken stances in evidence of a modifying character, flight back into the road. With the knowlthe question of negligence becomes equivocal. edge that the horses to the plaintiff's carriage In such cases it would be clearly error for were nervous, and that he would soon meet the court to enumerate only the former class them, it would be a strange rule of law that

76 N.E.-48

« ПредыдущаяПродолжить »