absence of lights at night, or the failure to sound a horn in the proper situation or environment." 52 § 156. Higher degree of care imposed by statute. The Missouri statute of 1911, since repealed,53 relating to the use of automobiles on the highways, exacted of the operator the highest degree of care that a very careful person would use under like or similar circumstances, to prevent injury or death to persons on, or traveling over public roads, streets, avenues or places much used for travel.54 This statute has been held by the Supreme Court of Missouri to establish a rule of conduct for drivers not only in respect to other users of the highways but also as to the degree of care to be exercised for their own safety; that it prescribes a standard for testing both negligence and contributory negligence.55 Under this statute it is the duty of the operator to keep a lookout for persons who fail to observe the approach of his machine. He is required to keep a lookout, not only straight ahead, but laterally ahead,56 and it is his duty to guard against all movements of persons likely to take place in the highway which a prudent man, exercising high care, should anticipate as within the range of reasonable probability and likely to occur according to the rationale of human experience.57 But the measure of care thus imposed is to be determined in the circumstances of the particular case.58 The court, in one case, suggested that, "among the precautions, 52 Siegeler v. Neuweiler, 91 N. J. L. 275, 102 Atl. 349 (1917). 53 Mo. Laws 1911, p. 327, sec. 8. 54 State ex rel. v. Allen, Mo., 250 S. W. 580 (1923); Daniel V. Pryor, Mo. 227 S. W. 102 (1920); Ford v. Dowell, Mo. App. 243 S. W. 366 (1922); Davis v. -· United Rys. Co., Mo. App. 218 8. W. 357 (1920); Dignum v. Weaver, 204 S. W. 566 (1918); Mo. App. Rappaport v. Roberts, Mo. App. 203 S. W. 676 (1918); Mitchell v. Brown, Mo. App. (1916); Carradine v. Ford, 195 Mo. App. 684, 187 S. W. 285 (1916); Grouch v. Heffner, 184 Mo. App. 365, 171 S. W. 23 (1914); Roberts v. Trunk, 179 Mo. App. 358 (1914); Porter v. Hetherington, 172 Mo. App. 502, 158 S. W. 469 (1913); Hodges v. Chambers, 171 Mo. App. 563, 154 S. W. 429 (1913); Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 (1912); Fields v. Sevier, 184 Mo. App. 685, 171 S. W. 610 (1914); Williams v. Kansas City, Mo. App. - 177 S. W. 783 (1915); Cool v. Peterson, 189 Mo. App. 717, 175 S. W. 244 (1915); Ginter v. O'Donoghue, Mo. App. 179 S. W. 732 (1915). This rule applies to a motorist approaching a railroad crossing. Eng. land v. Southwest Mo. R. Co., 66 -- Mo. Under the circumstances, it was the duty of the driver of defendant's automobile to exercise a high degree of care to have the machine so under control as to be able to stop quickly, when attempting to pass the pony near the edge of the traveled portion of the roadway." Priebe v. Crandall, Mo. App. 187 S. W. 605 (1916). 55 Freie v. St. Louis & S. F. R. Co., Mo. App., 241 S. W. 671 (1922); Threadgill v. United R. Co., 279 Mo. 466, 214 S. W. 161 (1919); Monroe v. Chicago & A. R. Co., Mo. S. W. 68 (1920); overruling Stepp v. St. Louis S. F. R. Co., Mo. App. 211 S. W. 730 (1919); Advance Thresher Co. v. Chicago, R. I. & P. R. Co., Mo. App. 195 S. W. 566 (1917); Hopkins v. Sweeney Auto School Co., Mo. App. 196 S. W. 772 (1917). 219 56 Aronson v. Ricker, 185 Mo. App. 528, 172 S. W. 641 (1915); Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 (1912). 57 Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 (1912). 58 Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 (1912). which a very careful person exercising the highest degree of care would use, would be that of watching to see whether the plaintiff's team," which the automobile was overtaking and passing, "was becoming badly frightened." 59 Where the duty is an extraordinary one, like that imposed by this statute, and the situation highly suggestive of hurt to others, slight evidence may be sufficient to suggest a breach.60 Such a provision, being in derogation of the common law, is strictly construed, but not so as to defeat the obvious intention of the law makers.61 Under this statute, where a collision occurred at an intersection of streets between a motorcycle and an automobile, if the cyclist was warranted in believing that he could safely proceed, and entered upon the intersection after exercising reasonable care to see that he would not be run into, he was not required to look back to see whether the automobile would turn toward and overtake him.62 This statute was held to apply to injury to animals running at large in the highways, as well as to those which are being driven or in control of someone.63 Such a provision applies at the time of an accident, as well as immediately before.64 A failure to exercise this degree of care by a servant in the operation of his master's automobile is regarded as a failure on the part of the master.65 This statute was not applicable to one riding as a guest of the driver of an automobile.66 Where a statute required the erection of signs each way on public highways 300 feet from railroad crossings, and provided that, "It shall be the duty of the driver of any vehicle using such street or highway and crossing to reduce speed to a safe limit upon passing such sign and to proceed cautiously and carefully with the vehicle under complete control," it was held that such statute requires greater care in approaching railroad crossings than theretofore obtained.67 § 157. Care required of motorist for his own safety. Under the "ordinary care" rule, a motorist is required to exercise the same degree of care for the protection and safety of others that he is required to exercise for his own safety. The Missouri statute of 1911 provided that operators of automobiles: "Shall use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways, or places much used for travel. Any owner, operator or person in control of an automobile, failing to use such degree of care, shall be liable to damages, to a person or property injured by failure of the owner, operator or person[s] in control of an automobile, to use such degree of care, unless the injury or death is caused by the negligence of the injured or deceased person, contributing thereto." Under this provision it was held that a motorist is required to exercise the specified high degree of care alike for his own safety and the safety of others.68 § 158. Statute creating only criminal liability for violation. The Missouri Motor Vehicle Statute of 1917, unlike the act of 1911, which was repealed by the 1917 act, does not provide a civil liability, but only a criminal penalty for its violation. Hence the failure to have two lamps bright enough to reveal objects 150 feet away does not create a civil cause of action, though the failure to have any lights at all so as to enable one to avoid running into another does give rise to a cause of action under the common law to one injured by the failure of any automobile driver to see.69 "But, though the statute does not provide a civil remedy, yet an injured party may find redress by a common-law action, based on the negligence found in violation of the statute (a violation being considered to be negligence per se). If one violates a city ordinance, it is negligence, and the ordinance may be admitted in evidence on the issue of negligence. If a general statute is violated, notice will be taken of its provisions, and a common-law action may be sustained by proof of violation of the statute and the resulting injury to the plaintiff. But an injured party cannot sue, and submit his case to the jury under the statute, when the statute fails to give a right of action, although he may have a right of action at common law for the same wrong. In this case plaintiff cannot be allowed to sustain his judgment by an appeal to the common law, when his action was not under that law. A plaintiff may sue at common law, and make proof of negligence by showing a violation of a statute or an ordinance; but, if he brings his action under the statute, he must confine his proof to the statutory negligence, and he cannot recover at common law." 70 It is also held that, as the violation of a penal statute regulating the operation of automobiles is negligence, a civil action may be predicated upon a violation of such statute.71 69 Walden v. Stone, 223 S. W. 136 (1920). 70 Dortch v. Reichel Motor Co., Mo. App., 223 S. W. 675 (1920); Lenz v. Seibert, Mo. App. S. W. 829 (1924). 68 Threadgill v. United Rys. Co., 279 Mo. 466, 214 S. W. 161 (1919); Monroe v. Chicago & A. R. Co., Mo. 219 S. W. 68 (1920), overruling Stepp v. St. L. & S. F. R. Co., Mo. App. 211 S. W. 730 (1919); Advance Thresher Co. v. Chicago, R. I. & P. R. Co., Mo. App. 195 S. W. 566 (1917); Hopkins v. Sweeney Auto School Co., Mo. App., 196 S. W. 772 (1917); Carroll v. Missouri Pac. 259 71 Flores v. Garcia, Tex. Civ. App. 226 S. W. 743 (1920). § 159. Must observe statutory requirements. Statutory duties. imposed upon operators of automobiles are cumulative; that is, additional to the common law, and do not destroy the duties that the common law imposes upon them.72 In fact these statutes frequently are merely declaratory of the common law.73 Thus, the following statutory provisions were declared to state merely what was already common law: "In approaching or passing a car of a street railway, which has been stopped to allow passengers to alight or embark, the operator of every motor vehicle shall slow down, and, if it be necessary for the safety of the public, he shall bring said vehicle to a full stop. Upon approaching a pedestrian, who is upon the traveled part of any highway and not upon a sidewalk, and upon approaching an intersecting highway or a curve or a corner in a highway, where the operator's view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn, or other device for signaling."74 An automobilist should ever bear in mind the ordinances and statutes regulating the operation of his machine and designed for the protection of the public.75 § 160. Control of automobile. "Speed is not the only element that enters into the question of negligence, and, regardless of it, a car may be under such imperfect control as to amount to negligent operation, and evidence of it would sustain the charge of negligence. 76 The phrase "having his car under control" does not necessarily mean ability to stop instanter under any and all circumstances. Such a rule would be impossible of observance. A car is "under control" within the meaning of the law if it is moving at such a rate, and the driver has the mechanism and power under such control, that it can be brought to a stop with a reasonable degree of celerity."7 § 161. Inexperience as affecting liability. An unskillful or inexperienced driver is not to be excused from liability 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 an automobile. Where a person operates an automobile along a public highway frequented by other travelers, he assumes the responsibility for injuries resulting from his unskillfulness in the operation of the car. Hence, an instruction which contained the statement that the driver "must ing pedestrians and intersections, held not to apply in the City of New York. Shifman v. Whalen, 234 N. Y. 283, 137 N. E. 331 (1922). 76 Anderson v. Wood, 264 Pa. St. 98, 107 Atl. 658; King v. Brillhart, 271 Pa. St. 301, 114 Atl. 515 (1921); Rankin v. Ward Baking Co., 272 Pa. St. 108, 116 Atl. 58 (1922). 77 Carruthers v. Campbell, 192 N. W. 138 (1923). Ia. possess reasonable skill in operating an automobile before he undertakes to operate said automobile upon the public thoroughfares or highways," was held to properly state the law.78 It has been declared that if one does not have ordinary skill, it is lack of ordinary care for him to attempt to drive an automobile where there is danger of colliding with others.79 § 162. Liability of occupants of automobile for injury to another. A passenger or guest in an automobile is not liable for injuries to a third person caused by the negligent operation of the automobile, unless he himself is guilty of negligence, or is engaged in a joint enterprise with the owner or operator.80 § 163. Duty to drivers following in rear. Young Simpson, one of the plaintiffs, a lad 16 years of age, accompanied by four companions, on bicycles, was riding along the road, and when he and they reached a place called Stratford, a motor delivery truck, belonging to the defendants, passed them. Besides the defendants' chauffeur who operated the truck there was a helper sitting in the rear looking back. From the time the motortruck passed Simpson and his companions up to the time of the happening of the accident they rode. behind the truck at a distance from 12 to 20 feet. The chauffeur of the truck spoke to the bicyclists as he passed them, and the testimony is undisputed that he knew they were riding behind his truck, and that the inclosed body of his truck was of such size as to practically shut off visibility to those behind of vehicles which were approaching from the opposite direction. The truck was going very rapidly, and Simpson and his companions were trying to keep up with it. As they were going down a long incline the driver of the truck observed a farm wagon standing across the road, also beyond it, coming rapidly from the opposite direction, six or seven touring cars. He attempted to pass around the farm wagon before the passing point was reached by the motorcars, and, discovering when he was almost on top of the farm wagon that he could not accomplish his purpose, he put on his brakes with full force and came to a sudden stop within a few feet of the farm wagon. He did this without any warning to Simpson or his companions, who he knew were closely following him. Three of them in order to avoid colliding with the truck undertook to pass to the right, with the result that they piled upon one another in a ditch alongside the road. The plaintiff, observing this and warned by his companions' fate and in order to avoid a mishap, turned to the left just as the first of the string of autos observed by the operator of the truck was passing the farm wagon, with the result that, though Simpson kept as near the delivery wagon as practicable, he was hit by the automobile and very seriously injured. In affirming judgment for the plaintiff, the court in part said: 78 Hughey v. Lennox, 142 Ark. 593, 219 S. W. 323 (1920). See post, § 259. 79 Arnold v. San Francisco Oakland Ter. Rys., 175 Cal. 1, 164 Pac. 798 (1917). 80 Burns v. Southern Pac. Co., 43 Cal. App. 667, 185 Pac. 875 (1919); Foxley v. Gallagher, 55 Utah 298, 185 Pac. 775 (1919). |