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and that this speed made a collision between the car and a street car inevitable, and that to minimize its effect the chauffeur turned sharply, causing the machine to skid and collide with the street car.

And the evidence in Neumiller v. Acme Motor Car Co. (1912) 49 Pa. Super. Ct. 183, was held sufficient to warrant the jury in finding negligence on the part of the chauffeur, it appearing that the accident occurred in the daylight on a broad highway over which the chauffeur had a choice of direction, and full control of the speed of his car, that he knew the risk presented by a wet street, and the difficulty of crossing rails of a trolley track extending 3 or 4 inches above the street level, and that his course and speed were such that in going from one side of the street to the other the rear wheel of the car caught or dragged, causing the car to skid with such force that it struck the curb and ran into a tree, injuring the passenger.

3. Accidents from car starting during chauffeur's absence.

The evidence in Wallace v. Keystone Automobile Co. (1913) 239 Pa. 110, 86 Atl. 699, in which a recovery was sought against the owner of an automobile for injuries sustained by a passenger to whom it had been rented with a chauffeur, was held sufficient to justify the jury in finding that the accident causing the injury would not have occurred had the machine been in a proper condition, and had the chauffeur been competent and skilful and free from negligence, it appearing that the chauffeur stopped the automobile, alighted from it, and when he had gone but a few yards towards a team on the opposite side of the road, from the occupants of which he intended to make inquiries as to his route, the automobile started towards him, and that he ran back to the machine, and in attempting to avoid a collision with the team and its occupants the machine went over an embankment, killing the plaintiff's husband, and injuring her. It was further held that the starting of the automobile was the proximate cause

of the accident, resulting in the death of the plaintiff's husband and her injury, and there was held to be no intervening, independent agency.

In the Wallace Case a cause of action was held to be alleged by a complaint which stated that on account of the want of repair and defects in the automobile furnished, and the incompetency, unskilfulness, and negligence of the chauffeur in handling the automobile, the car started and was carelessly and negligently run, or driven, against a tree by the chauffeur, and that as a result the plaintiff's husband was killed and she was injured. The court held that it was unnecessary to allege anything more definite as to the facts constituting the alleged negligence, or to set out the evidence by which it was expected to prove the want of repair, or the incompetency or negligence of the chauffeur.

b. Injuries to guests.

Where an automobile is hired from an undertaker for use in conveying persons at a funeral, the contract for hire is for the benefit of each occupant of the machine invited by the person hiring it, and imposes the same duty on the person renting the machine towards each of the occupants, and the fact that the person renting the machine did not know the number or names of the persons for whom it was hired does not affect the question of liability, in case of an injury to one of the occupants through the negligence of the chauffeur. Dunne v. Boland (1916) 199 Ill. App. 308.

In the Dunne Case, it was held that the undertaker was in the position of a private carrier for hire, no different from that of a liveryman rendering similar carriage service, and that it made no difference whether he or his chauffeur did the driving. The court stated that he was required to exercise the same measure of skill and care which was applied to a person engaged in any special pursuit in which he undertakes to perform services for others for a compensation, that such a one undertakes to possess the skill adequate to the undertaking, and promises to exercise due diligence and care in its performance, but that or

dinary skill, diligence, and prudence are all that the law exacts from him. The evidence in this case, however, was held to show a want of ordinary skill and positive negligence, there being evidence that, while it was being operated by the defendant's chauffeur, it struck a rail of a bridge and upset, and it appearing that, although the driver was within the jurisdiction of the court, he was not called to refute the evidence tending to show that the accident was due wholly to his inattention and carelessness.

Although the defendant in the Dunne Case introduced evidence that after the accident a defect was found in the steering gear that was not discoverable by the exercise of reasonable care in the inspection of the machine, yet, as there was nothing in the record to indicate that the defect might not have resulted from the accident, and the driver was not called to prove that he had any difficulty in steering the car, it was held not to refute the plaintiff's proof of negligence.

In Rodenburg v. Clinton Auto & Garage Co. (1913) 84 N. J. L. 545, 87 Atl. 71, affirmed in (1913) 85 N. J. L. 729, 91 Atl. 1070, the question whether the plaintiff was in the car by the invitation of the defendant was held for the jury, and the evidence was held to show that the car was rented for the use of the hirer and his guests, and that the plaintiff was present at the invitation of the hirer.

With respect to the obligation of the defendants to the guests of the hirer, the court stated that the duty of the defendants was similar to that which the owner of an apartment house owes to visitors of his tenants with regard to the condition of the common passages, that while the plaintiff was riding in their car, driven by the defendants' chauffeur, they owed him the duty, at least, of reasonable care for his safety, and that the failure of the driver to use such care would render them liable, in the absence of contributory negligence. The question whether the chauffeur was the servant of the hirer or of the owner of the machine was left to the jury, and this was held as favorable to the

defendant as he could expect, the court stating that normally the driver of a hired conveyance, when furnished and paid by the owner thereof, is the servant of the owner, and not of the hirer.

In this case, the collision resulting in the guest's injury occurred when the driver attempted to crowd between a standing truck and the curb, during the process of which the truck horses moved. The question whether the driver of the automobile, in the exercise of due care, should have tried to get through the narrow opening, was held for the jury, as were also the questions of proximate cause and concurring negligence on the part of the truck driver in leaving his horses unattended.

In Routledge v. Rambler Automobile Co. (1906) - Tex. Civ. App. —, 95 S. W. 749, the evidence was held to justify a recovery by a guest of one who had rented the machine from the defendant, where the car was being driven at 25 or 30 miles an hour, and the chauffeur was unable to make a curve and ran into a fence, injuring the plaintiff, although there was evidence that other members of the party had requested the chauffeur to drive at a high rate of speed, but it did not appear that the plaintiff had made such a request, or had acquiesced in the demand of the others.

IV. Miscellaneous.

It will be observed that in the reported case (DANTZLER SHIPBUILDING & DRY DOCKS Co. v. HURLEY, ante, 1487), the court was of the opinion that there was no breach of the carrier's contract for hire, and no negligence shown, by reason of the fact that the driver of the motor truck passed the gate in front of the passenger's boarding house a few feet or yards, it not appearing that there were any impediments in the way of his getting to the house; but it was held that, assuming that the driver should have stopped immediately in front of the gate, and failed to do so, there could be no recovery for the death of the passenger, who jumped from the automobile while

it was running at not less than 3 miles an hour, and fell under the wheels, since his act was the proximate cause of the injury.

It has been held that one who operates a sight-seeing automobile over regular routes in a city, which he invites the general public to patronize for hire, owes patrons the duty of exercising in the operation of the vehicles the highest degree of care consistent with the proper transaction of the business. Hinds v. Steere (1911) 209 Mass. 442, 35 L.R.A. (N.S.) 658, 95 N. E. 844, 1 N. C. C. A. 134.

And in McFadden v. Metropolitan Street R. Co. (1911) 161 Mo. App. 652, 143 S. W. 884, where a passenger on a sight-seeing automobile sought recovery for an injury sustained in a collision between the automobile and a street car, it was held that the driver of the automobile owed his passengers the highest degree of care, and the

evidence was held to show a failure to use reasonable care, there being testimony that if he had looked in the direction of the street car he must have observed the negligence of the motorman in operating his car.

In Wing v. London General Omnibus Co. [1909] 2 K. B. (Eng.) 652, 3 B. R. C. 79, 78 L. J. K. B. N. S. 1063, 101 L. T. N. S. 411, 73 J. P. 429, 25 Times L. R. 729, 53 Sol. Jo. 713, 7 L. G. R. 1093, in an action by a passenger on a motor omnibus for personal injuries sustained in consequence of the vehicle skidding on the slippery road and colliding with an electric light pole, the mere fact that the owner of the omnibus operated it on the highway for the carriage of passengers when the road was in a slippery or greasy condition, with knowledge of the tendency of such vehicles to skid, was held no evidence of negligence on the part of the owner. J. T. W.

A. H. KARNES, Plff. in Err.,



Virginia Supreme Court of Appeals – June 18, 1919.

(-Va., 99 S. E. 562.)

Evidence declarations of fear of other persons.

1. One accused of murder may show that, about the time of the crime, deceased, by words and acts, showed that she was afraid of another person, who she claimed had threatened to kill her.

[See note on this question beginning on page 1516.]

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of the court.

ERROR to the Corporation Court of Roanoke to review a judgment convicting defendant of murder in the second degree. Reversed. The facts are stated in the opinion Messrs. Hoge & Darnall and Hairston & Hopkins, for pliantiff in error: The jury was not legally summoned and impaneled.

Patrick v. Com. 115 Va. 933, 78 S. E. 628; Jones v. Com. 100 Va. 847, 41 S. E. 951; Looney v. Com. 115 Va. 921, 78 S. E. 625; Wash v. Com. 16 Gratt. 538.

Section 3055 of the Code, giving jurisdiction a mile beyond the corporate limits of the city, is unconstitutional.

Pine v. Com. 121 Va. 842, 93 S. E. 652; Ruffin v. Com. 21 Gratt. 790; 16 R. C. L. §§ 14, 15; Andrews v. Com. 100 Va. 806, 42 S. E. 935.

Declarations of the murdered woman were admissible.

Cluverius v. Com. 81 Va. 787; Tilley v. Com. 89 Va. 136, 15 S. E. 526.

Messrs. John R. Saunders, Attorney General, J. D. Hank, Jr., Assistant Attorney General, and Morton L. Wallerstein, for the Commonwealth:

The verdict of the jury was not contrary to the law and the evidence.

Horton v. Com. 99 Va. 848, 38 S. E. 184; Andrews v. Com. 100 Va. 801, 40 S. E. 935; Hardy v. Com. 110 Va. 913, 67 S. E. 522; Tilley v. Com. 89 Va. 136, 15 S. E. 526; Cluverius v. Com. 81 Va. 787; Dean v. Com. 32 Gratt. 912.

The jury was legally summoned and impaneled.

Patrick v. Com. 115 Va. 933, 78 S. E. 628; Thurman v. Com. 107 Va. 912, 60 S. E. 99; Ashlock v. Com. 108 Va. 877, 61 S. E. 752; Hardy v. Com. 110 Va. 910, 67 S. E. 522; Hall v. Com. 80 Va. 555; Myers v. Com. 90 Va. 785, 20 S. E. 152; Jones v. Com. 100 Va. 842, 41 S. E. 951.

Section 3055 of the Code, giving jurisdiction to corporation courts over of fenses committed in the county within 1 mile of the corporate limits, is constitutional.

Ruffin v. Com. 21 Gratt. 790; Bertram v. Com. 108 Va. 902, 62 S. E. 969; Anderson v. Com. 100 Va. 860, 42 S. E. 865; Re McDonald, 20 Cal. App. 641,

(— Va. —, 99 S. E. 562.)

129 Pac. 957; State v. Robinson, 14 Minn. 447, Gill. 333; Wray v. State, 154 Ala. 36, 15 L.R.A. (N.S.) 493, 129 Am. St. Rep. 18, 45 So. 697, 16 Ann. Cas. 362; Mischer v. State, 41 Tex. Crim. Rep. 212, 96 Am. St. Rep. 780, 53 S. W. 627; State ex rel. Hooten v. McKinney, 5 Nev. 194; Ex parte Settle, 114 Va. 715, 77 S. E. 496; Polglaise v. Com. 114 Va. 850, 76 S. E. 897.

The declarations of the murdered woman were not admissible.

Mullins v. Com. 113 Va. 787, 75 S. E. 193; Alexander v. United States, 138 U. S. 355, 34 L. ed. 956, 11 Sup. Ct. Rep. 350; 8 R. C. L. § 178; State v. Moon, Ann. Cas. 1913A, 731 note; Whart. Crim. Ev. p. 452; Richards v. Com. 107 Va. 881, 59 S. E. 1104; McBride v. Com. 95 Va. 818, 30 S. E. 454; Mings v. Com. 85 Va. 638, 8 S. E. 474; Johnson v. Com. 111 Va. 877, 69 S. E. 1104.

Admissions of defendant on the stand as to the contents of letters alleged to have been written by him to the murdered woman are proper testimony.

Johnson v. Com. supra; Taylor v. Peck, 21 Gratt. 11; Wigmore, Ev. 88 §§

1255, 1256.

Prentis, J., delivered the opinion of the court:

The accused was convicted of murder in the second degree and sentenced to twelve years' confinement in the penitentiary.

Jury-objection to panelwaiver.

1. The prisoner objected to the jury as impaneled, upon the ground that it was illegally constituted and selected, and in support of his motion had the original venire facias made a part of the record. His objection was overruled, and he excepted.

The question is controlled by § 4018 of the Code, the last paragraph of which provides that "no irregularity or error in drawing the names or in making out or copying or signing or failing to sign the list or in summoning the persons named on the list shall be cause for summoning a new panel or for setting aside a verdict or granting a new trial, unless objection thereto was made before the jury was sworn, and unless it appears that such irregularity, error, or failure was intentional or is such as to probably

cause injustice to the commonwealth or to the accused."

It appears that six of the jurors who served were not in the list of jurors named in the original venire facias. If this objection had been made before the jury was sworn, and the record failed to show that the additional jurors had been lawfully impaneled, then it is clear that the motion should have been sustained. It appears, however, from the bill of exceptions, that this objection was not made until after the jury had been impaneled. A jury is not impaneled until



it has been selected, found free from exceptions, and duly sworn in the case; and inasmuch as the clear inference is that the jury had been sworn before the objection was made, it was properly overruled, for it does not appear that the irregularity was intentional, or such as probably to cause any injustice to the accused. While the statutes with reference to the summoning and impaneling of jurors in criminal cases are mandatory and must be strictly followed, yet this court will indulge every proper presumption in favor of the


regularity of the irregularity in will not reverse the case where no and Jury-reversal. proceedings, tion is made before the jury is injury is shown, unless the objec


2. The crime charged (which was the murder of a married woman who was habitually maintaining illicit relations with the prisoner, and had previously previously maintained similar relations with other men) was committed in the county of Roanoke, just outside of the city of Roanoke, and within 1 mile of the city limits. The accused was indicted in the corporation court of the city of Roanoke. He demurred to the indictment, upon the ground that the venue of the crime was in the county of Roanoke, and that he could not be tried in the city, because, among other reasons, by § 8 of article 1 of the Virginia Consti

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