observed the child, upon the assumption that the plaintiff would heed his approach and remain away from the course of the automobile." 55

§ 471. Child starting unattended truck, injuring playmate. Where defendant had permitted children to play on and about his motor trucks, which were kept standing in front of his place of business, and the deceased, a five-year-old boy, was killed by the starting of an electric truck by a playmate, the brakes of which were defective and the switch not thrown off, it was held that the question of defendant's negligence was for the jury.

"In the case at bar, the electric truck on the day of the accident was standing in front of defendant's place of business a considerable time, pursuant to a habit defendant had of allowing its machines to do so. The switch, which if thrown off would render the machine. absolutely dead, was on, and all that was necessary to start it was to touch the lever, which the boy on the driver's seat did, and immediately the truck started. The brakes were in a worn and defective condition, to the defendant's knowledge. The defendant knew that children in the neighborhood played on and around its automobiles. I think it was a question for the jury as to whether defendant was guilty of negligence that was the proximate cause of decedent's death. Under the opening, the plaintiff could have introduced evidence to make out a prima facie case against the defendant. While an automobile is not necessarily a dangerous device, it can easily be made so by having it in a defective condition or placed under circumstances that constitute it a menace to others. It cannot be said as matter of law that the infant decedent was guilty of contributory negligence.

1956

Defendant's chauffeur stopped his electric truck to make a delivery, saying to one of several children, "mind the automobile." The truck was stopped where there was a one per cent. grade sloping in the direction it was facing. Four children boarded the truck, and a boy pulled a little lever under the steering wheel, and at the same time the truck started, injuring the plaintiff, a child, who was leaning against it. There was testimony that the key was not removed to prevent the power from being turned on; that the machine would not have started without the application of power, and that the chauffeur knew that children had been in the habit of playing about the machine when stopped there on former occasions. Held, that the case was for the jury.57

§ 472. Driving through crowd of children. It has been declared to be an act of gross negligence to drive an automobile through a large crowd of playful, noisy children at the rate of 5 or 6 miles an hour; that when driving through a crowd of children the operator must exercise care commensurate with the exigencies of the situation; and that in such a situation the greatest care is only ordinary care.58

55 Herald v. Smith, 56 Utah 304, 190 Pac. 932 (1920).

56 Lee v. Van Beuren & N. Y. B. P. Co., 190 App. Div. 742, 180 N. Y. Supp. 295 (1920).

57 Grumbrell V. Clausen Flanagan Brewery, 199 App. Div. 778, 192 N. Y. Supp. 451 (1922).

58 Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450 (1912).

The plaintiff, a girl 6 years old, was one of a crowd of 40 to 100 children and adults gathered about a wrecked automobile in a public street, about 6 o'clock on the afternoon in question. There was much noise and confusion, and some of the children were playing. It was a thickly populated community. There was evidence that defendant's automobile approached, and the crowd opened a way for it, and it proceeded through the crowd at a rate of speed much faster than a fast walk; that the plaintiff was standing on the edge of the crowd, was seen to fall, and the rear wheel of the automobile ran over her. No witness for the plaintiff saw the automobile strike her, but the defendant stated that there was a collision between the plaintiff and the mud guard or step, caused by her running out from the crowd and against the machine. Other witnesses testified that she did not run out of the crowd or against the machine. Held, that the evidence was sufficient to support a verdict for the plaintiff.59

§ 473. Striking one of a group of children in plain view. Action was brought to recover for the death of an eleven-year-old boy, who was killed by defendant's automobile on an August afternoon, in a public boulevard which was visited at this time of the year by thousands of people daily, while he, with 25 or 30 other children, was running and skipping across the boulevard. A man, seeing the automobile coming towards the children, ran out to about the center of the boulevard and tried to stop the boys; holding his left hand horizontally and his right hand upward, facing towards the automobile. Eight or ten of the children continued across. Deceased, who perhaps at first was slightly behind some of the others, was "skipping sideways," and "skipped in between the boys." "The way he was skipping towards the end of the line" brought him facing towards the automobile. He was perhaps a foot in advance of the boy next to him, and had come to a stop before he was struck. There was evidence that defendant was driving 15 miles an hour, some witnesses estimating it at 25, and that apparently he did not abate the speed from the time he saw the boys 200 feet away from him until after the accident, and that he sounded no horn or other warning of his approach. It was held that the evidence was ample for a finding of negligence on the part of defendant, and on the question of the conduct of the deceased, the court said: "Whether the deceased was in the exercise of due care or not was a question of fact. He was at a public park in company with a large number of boys. The conduct of the group was what might have been expected of normal boys out for a holiday. And one of such a large group of children, if he paused to reason about it in advance, fairly might have expected that no automobile would be driven through their midst at a high rate of speed. It falls far short of being negligence as matter of law for the decedent to have run to the end of the line of his companions and stopped a foot in advance of them. The boulevard was not a race track but a place where travelers had a right to be." 60

59 Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450 (1912).

60 Clark v. Blair, 217 Mass. 179, 104 N. E. 435, 8 N. C. C. A. 385n (1914).

"Whether or not the defendant's conduct was negligent rested upon these facts: His automobile, 'going fast,' was driven without warning signal of

Where an automobilist drove his automobile on a much used public boulevard at the rate of at least 15 miles an hour, there being evidence that it was as much as 25 miles, and struck and killed one of a group of 25 or 30 children, who were running and skipping across the boulevard, it was held that the evidence would support a finding that the automobilist violated the provisions of a statute by operating his automobile at a speed "greater than is reasonable and proper having regard to traffic and the use of the way and the safety of the public. "It might have been pronounced negligence," said the court, "to run an automobile along this boulevard within a foot or two of a group of boys which might have been seen by the defendant to have been restrained by their adult companion and within about the same distance of others who had run ahead of the group which was stopped.” 61

§ 474. Excessive speed of automobile. In an action to recover for the death of a boy, it appeared from the special findings of the jury that he was struck and killed by defendant's automobile on the north side of an east and west street just west of an intersecting avenue; that there was a brick building 37 feet wide fronting on the east and west street at the northwest corner of the intersecting avenue; that in front of the building, at the street curb, there were two wagons, with horses hitched to them, the west wagon having a covered top, while the other did not; that there was a passageway between the wagons; that the automobile was proceeding west, and before reaching the intersecting avenue reduced its speed; that the automobile was making a loud noise; that while the automobile was approaching the intersecting avenue, deceased was playing with other boys on the sidewalk in front of the building; that the driver first saw deceased in the street when the machine was only 8 feet distant from him, and he immediately turned the car and endeavored to stop it; that the boy was 8 years and 10 months of age, in possession of all his faculties, of average intelligence, and was of sufficient age and intelligence to know and appreciate the risk and danger of going into the street. It was not found whether the boy entered the roadway between the wagons, or what, if anything, obstructed his view of the approaching machine. There was evidence that the machine, which was being tested, was driven at the rate of 50 miles an hour. It was held that the special findings were not inconsistent with a general verdict for the plaintiff, and judgment in his favor was affirmed.62

Where defendant saw the plaintiff start across the street, and plaintiff traversed a distance of 16 feet before he was struck, the question

any kind and with no slackening of its speed, toward the place where seven or eight young boys were playing on the edge of the traveled road, shouting, in motion and noisily absorbed in and intent upon their game, and came into fatal collision with the plaintiff's decedent, who was one of the boys so engaged. We cannot say that in the situation so presented, and with the question of contributory negligence wholly

eliminated by the age of the boy, the jury might not have found for the plaintiff." Nonsuit was held error. Duff v. Husted, 95 Conn. 206, 111 Atl. 186 (1920).

61 Clark v. Blair, 217 Mass. 179, 104 N. E. 435, 8 N. C. C. A. 385n (1914).

62 American Motor Car Co. v. Robbins, 181 Ind. 417, 103 N. E. 641, 8 N. C. C. A. 373n (1913).

whether the speed at which defendant was driving contributed to the accident was for the jury.63

§ 475. Automobile backing. The plaintiff and another boy ran after the defendant's automobile, and the other boy jumped on it: Then when some one yelled "Get off," the other boy tried to get off, and in doing so got his foot stuck between some barrels on the automobile, and plaintiff went to his assistance and pulled out his foot from between the barrels. At this time the automobile had stopped, and, the other boy being free, plaintiff jumped off. Just at this time the automobile, without warning, backed up hill a distance of five feet running over the plaintiff.

Held, that the evidence made a prima facie case, and judgment of dismissal was reversed and a new trial granted.64

While the court did not expressly refer to such rule, this case clearly shows the application of the doctrine of res ipsa loquitur.

The driver of a truck, stopped at the curb, saw a six-year-old boy at the rear of the truck, lifted him to the sidewalk, and told him that he was going to back the truck. After a short time spent in cranking the engine, and after noticing that the boy was not where he had placed him, and without determining where the boy was, he backed the truck over the boy. Held, that whether he had exercised due care for the safety of the boy was a jury question.65

Where a child, playing in a frequented street just behind a standing automobile, and easily seen, is injured by the sudden backing of the machine without warning and without a careful inspection by the driver to ascertain his presence in a place so obviously dangerous, the jury is justified in charging the operator with negligence.66

§ 476. Steering gear failing to work. In an action to recover for the death of a boy, about 13 years of age at the time of his death, there was evidence that deceased and several other children were walking along a public highway on their way home from school; that they saw the defendant's automobile approaching and got out of the road; that when the automobile was 50 to 70 feet distant from them it began to leave the road, going to the side on which deceased and three other children were walking; that, while his companions escaped, the deceased was struck by the machine and so injured that he died as a result thereof; that the highway was 40 feet 9 inches wide, and there was a ditch 18 inches deep on the south side, about three and a half feet from the fence; that deceased was between the ditch and the fence, and about one foot from the fence when he was struck; that when the automobile left the traveled part of the road defendant shut off the gasoline, and attempted to guide the machine back into the traveled part, but the steering gear would not work and it gradually

went to the side of the road; that after striking the boy the machine continued to a telephone pole, which was 2 feet from the fence, and the hub of one wheel struck the pole with sufficient force to tear a wheel off the car, and break the crosshead on the pole; that it then continued until it struck an oak post in a wire fence at the south side of the road, where it stopped, after breaking the post, a distance of 141 feet from the place where the boy was hit; that the machine was traveling 25 to 35 miles an hour, which was in violation of statute; that the machine was equipped with an emergency brake, which was in good condition; that the car could have been stopped with the emergency brake within 40 or 50 feet when running at 30 miles an hour, and within 20 to 25 feet if running at a speed of 12 to 15 miles an hour.

It was held that there was evidence which justified a finding that the negligent rate of speed was the proximate cause of the accident, and also that defendant's negligent failure to promptly apply the emergency brake after discovering that the steering gear was broken justified a finding in plaintiff's favor.67

§ 477. Automobile skidding onto sidewalk. The deceased, a boy of about 8 years of age, was fatally injured by being struck by a skidding automobile of the defendant while he was standing on the sidewalk on the south side of the street. The automobile was being driven westerly on the north side of the street, when its progress was obstructed by a wagon, and by a street car, which was moving more slowly than the automobile had been, and which was proceeding westerly on the northerly of two tracks. The driver then turned his automobile at right angles or diagonally across the street to the south side, moving at a rapid rate, and in making the turn on that side of the street to continue westerly the rear part of the automobile slued or skidded and the top, which projected over the sidewalk, struck the boy. The roadway was dry, and the boy was in plain view from the course pursued by the automobile. Held, that the case was for the jury, and judgment for the plaintiff was affirmed.68

§ 478. Automobile turned to left to avoid other vehicle. In an action to recover for injuries to a child who was struck by an automobile which was turned to the left and run upon the sidewalk, the defense being that the injury was caused by the unforeseen result of the efforts of the automobile driver to avoid collision with a motorcycle which was approaching on the wrong side of the street at a dangerous rate of speed, instructions were held to be correct which charged the jury that, if they found that the defendant, in operating the car, turned to the left on meeting an approaching vehicle and that by reason of the turning the accident happened, this would be prima facie evidence of negligence and would raise a presumption that defendant was negligent in turning to the left and upon the sidewalk, but that this act of defendant might be explained by him so as to justify it; and "If you find from the evidence that the person

67 Fox v. Barekman, 178 Ind. 572, 99 N. E. 989 (1912).

68 McGettigan v. Quaker City Auto Co., 48 Pa. Super. Ct. 602 (1912).