doing. It also appeared in this case that the accident happened at night, and both front and rear lamps of the machine were lighted.49 In order to charge a wife with negligence in riding in an automobile, driven by her husband, whom she knew had an injured hand, it must also appear that she knew, or in the exercise of ordinary care was required to know, that by reason of such injury he was unable to manage the automobile with ordinary safety.50

Where a wife, who owned an automobile, sent it to another city for her husband to use, and while there on a casual visit she was injured while riding in the machine with her husband, it was held that, as she was exercising no control over the machine, the negligence of her husband was not attributable to her; he being a bailee of the car.51

It has been held that a wife, riding with her husband, may not rely implicitly upon the care and prudence exercised by him, and that it is her duty, where they were approaching a street railway track at a careless rate of speed, to attempt to have him check his speed to a safe rate, and that a failure on her part so to do constitutes negligence.52

It has been held that where a wife was driving her husband's car and he was riding with her, her negligence was imputable to him.53 The mere relationship of father and son does not change the rule relating to imputable negligence. Hence, a father who was riding in an automobile driven by his 29-year-old son was not chargeable with the latter's negligence; the father having no control over the operation of the machine.54

Where the plaintiff was riding as his brother's guest on a motorcycle when defendant's automobile collided therewith, inflicting the injuries complained of, and there was no evidence that he had or could exercise any control over his brother in the operation of the motor-cycle, the negligence, if any, of the brother was not attributable to him.55

Where the plaintiff was riding in an automobile as the guest of her aunt, the negligence of her cousin, who was driving the car, was not imputable to her.56

The rule applied where a daughter was riding as guest of her father, and her brother was driving.57

The negligence of the master's servant is not to be imputed to the master's wife.58

Negligence of the owner's chauffeur is not imputable to the owner's child riding with the chauffeur.59

49 Lawrence v. Fitchburg & L. St. R. Co., 201 Mass. 489, 87 N. E. 898 (1909).

50 Gaffney v. Dixon, 157 Ill. App. 589 (1910).

51 Virginia R. & P. Co. v. Gorsuch, 120 Va. 655, 91 S. E. 632 (1917).

52 Miller v. Ft. Smith L. & Tr. Co., 136 Ark. 272, 206 S. W. 329 (1918). 53 Wisconsin & Ark. Lbr. Co. V. Brady, 157 Ark. 449, 248 S. W. 278 (1923).

54 Bryant v. Pacific El. R. Co., 174 Cal. 737, 164 Pac. 385 (1917).

55 Parmenter v. McDougall, 172 Cal. 306, 156 Pac. 460 (1916).

56 Turney v. United Rys. Co., 155 Mo. App. 513, 135 S. W. 93 (1911). 57 Walsh v. Altoona & L. V. El. R. Co., 232 Pa. St. 479.

58 Moon v. St. Louis Transit Co., 237 Mo. 425, 141 S. W. 870. 59 Stemler v. Cady, Mass., 141 N. E. 109 (1923).

In an action by a husband in his individual capacity to recover for injuries to his wife, negligence on his part which contributes to the injury is a bar to his recovery.60

§ 551. Husband and wife riding in community property automobile. In Washington, owing to statutes relating to community property, which merge the husband and wife in legal entity, the wife's administrator could not recover for her death, occurring while she was riding with her husband in an automobile, which the husband negligently drove onto a railroad crossing, both being almost immediately killed by a passing train, as the contributory negligence of the husband was that of the entity.61

§ 552. Wife riding in her car driven by husband. A wife riding in her automobile, driven by her husband on an outing trip, is chargeable with the negligence of her husband. "If in this case the negligence of Mr. Prendergast is imputed to his wife, such determination would not be made because of the marital relation, but because she was the owner of the automobile; that it was being operated by the husband for the wife in furtherance of a purpose in which she was an interested party, and because from those circumstances the relation of principal and agent would arise between Mrs. Prendergast and her husband.” 62

§ 553. As between co-employees. The fact that the operator of an automobile and a person riding therein with him are empolyees of the same corporation does not cause the negligence of the former to be imputable to the latter.63

Negligence of the chauffeur is not imputable to his helper, a coemployee, riding with him.64

However, an employee may commit his safety to his co-employee so that the negligence of the latter may be imputed to him.65

§ 554. As between members of fire department. Where plaintiff and another were riding upon the rear of a truck which was being driven at a high rate of speed to a fire, and plaintiff had no voice in the selection of the driver, and no control over his actions or the

employed in connection with the delivery of the ice; the driver having charge of the wagon, driving the horse and handing out the ice from the wagon to the boy, who carried it from the wagon and delivered it to the customers; both of whom rode on the wagon and occupied the same seat. Baxter v. St. Louis Transit Co., 103 Mo. App. 597, 78 S. W. 70.

64 Rowe v. United Rys. Co., 211 Mo. App. 526, 247 S. W. 443 (1923).

65 Morel v. New York, N. H. & H. R. R. Co., 238 Mass. 392, 131 N. E. 175 (1921).

speed of the truck, but was required by his duties to mount thereon. and proceed to the scene of the fire upon an alarm being given, and render such assistance as was possible, and while riding thereon a collision occurred between said truck and a street car, resulting in injuries to plaintiff, the negligence, if any, of the driver of said truck could not be imputed to plaintiff.66

$555. As between policeman and automobile patrol chauffeur. The negligence of the chauffeur of a police patrol automobile was not imputable to a policeman, who was required to ride in the automobile in answer to a riot call in the course of his duties; he having no right to select such chauffeur, and no power of control over him.67

§ 556. As between nurse and driver of ambulance. Where a nurse, driver and ambulance were furnished by the employer of the nurse and driver to carry crippled children home, the negligence of the driver was not imputable to the nurse.68

§ 557. As between dealer's chauffeur and prospective purchaser. The deceased was in the drayage business, and both for the purpose of trying out a truck with a view to purchasing it, and to make certain transfers, applied to the owner for the use of the truck. The latter assented on condition that an experienced chauffeur should drive the truck and demonstrate it and that deceased should pay a certain sum per day for its use. Under this arrangement, the truck was put into use, and while deceased was riding with the chauffeur the latter negligently drove onto a railroad crossing, where a train struck the truck, and deceased was killed. It was held that deceased, although riding on the truck, and directing its general route, was a passenger thereon, and was not chargeable with the chauffeur's negligence. 69

§ 558. Undertaker's driver and passenger. The negligence of an undertaker's driver is not imputable to one riding in the automobile after attending a funeral, in this instance as a pallbearer. language of the Missouri case cited is a little unfortunate in the use of the words "as a matter of law." In such circumstances as these the driver's negligence is never imputable to the person riding with

him. For his negligence to be imputable to the occupant he must at the time be acting as agent of the occupant.70

§ 559. Rights of guest when driver without authority to permit him to ride. The fact that an employee, engaged in testing a car, had no authority to invite anyone to ride with him, did not affect the right of a person riding with him at his invitation to recover for injuries received in a collision due to the negligence of the driver of another machine.71

§ 560. Presumption when passenger is killed. When a passenger in an automobile is killed, in the absence of evidence to the contrary, it is presumed that he exercised reasonable care for the protection of his safety.72

One who was riding with another in an automobile approaching a railroad crossing where the view was obscured until the machine was within 50 feet of the track, from which position a train could be seen a distance of 150 or 200 feet, and the automobile was stopped about 44 feet from the track, it was presumed that he attempted to warn the driver or leave the machine.73

If the pas

§ 561. Operator and occupant as fellow servants. senger is a fellow servant of the driver the employer is not liable to him on account of the driver's negligence. A maid riding with the owner's wife was held to be a fellow servant of the chauffeur.74 A laundress being conveyed from her place of work to her home

70"It is important to determine whether the alleged negligence of the automobile driver was imputable to plaintiff. The latter was sitting on the rear seat of the automobile and on the west side of same from which the on-coming car was approaching. It is undisputed that plaintiff was riding in a hired vehicle, then operated by defendants Newcomer in the course of their undertaking business, and that defendants Newcomer furnished this vehicle and carried plaintiff, with other pallbearers, on account of the consideration which they had received. The plaintiff had no control over the driver of the machine, was not in any way directing his movements at the time and place of accident; and, as the collision occurred in such a short time after the gripman and driver of the machine came in view of each other, we are of the opinion that the alleged negligence of the automobile driver should not be imputed to plaintiff as a matter of law." Mahany v. Kansas City R. Co., 286 Mo. 601, 228 S. W. 821 (1921).

71 Barry v. Harding, 244 Mass. 588, 139 N. É. 298 (1923).

72 Carpenter v. Atchison, T. & S. F. R. Co., 51 Cal. App. 60, 195 Pac. 1073 (1921).

73 Drouillard v. Southern Pac. Co., 36 Cal. App. 447, 172 Pac. 405 (1918).

In the absence of direct evidence or rebutting circumstances, deceased is presumed to have exercised reasonable care in looking for trains. McKerall

v. St. Louis-San Francisco R. Co., Mo. App., 257 S. W. 166 (1924).

74 Erjauschek v. Kramer, 141 App. Div. 545, 126 N. Y. Supp. 289 (1910).

The driver of a large wagon used in hauling vehicles from defendant's factory to the depot for shipment, was empowered to employ and did employ the men needed by him in loading and unloading the vehicles, and managed that work, having control of the men and giving them a statement of the number of hours each worked, and those were paid by defendant. As one of such men was in the act of climbing on the wagon in the course of his duties, the driver negligently started the wagon, and the former was injured. Held, that, in hiring the men and controlling their work in loading and unloading the wagon the driver was a vice-principal of defendants; but in driving the wagon, and at the immediate time of the accident, he was a fellow servant with the plaintiff, who, on that account, could not recover for

in her employer's automobile, as part of her contract of employment, was held to be a servant of the employer at the time, and she could not recover for injuries, due to the chauffeur's negligence.75

A farm laborer, helping to operate a tractor, was held to be a fellow servant of the driver.76

The driver of an express truck and his helper have been held to be fellow servants.77

The chauffeur of a truck and a helper employed by the owner to assist in loading and unloading and in watching the contents of the truck, where held to be fellow servants at a time when the truck was being driven across a street car track, where it was struck by a car. In this case the plaintiff knew nothing about operating a truck. He was riding on the seat with the driver, and it was not disputed that he was in the course of his employment. Hence, the truck was his place of work, and the driver was in sole control of the operation of the truck. The driver was the one person who could take the truck (place of work) into a place of danger, or keep it out of danger. So far as the operation of the truck was concerned, the safety of the place of work depended upon the exercise of due care by the driver. This place of work was moved about from place to place. Could the employer delegate to a driver such control over the place of work as to relieve himself of liability for the negligence of his driver in making the place of work dangerous in respect to a matter over which the driver was given full control? 78

An employer who undertook to transport an employee, an electrical engineer, to his work, was bound to exercise ordinary care, and was liable for injuries resulting to such employee from the negligence of his driver.79

In an action by an employee to recover from his employer for injuries alleged to have been due to the negligence of the driver of the employer's truck while transporting the plaintiff and other employees from one town to another, the defense of fellow servant was not raised.80

A bundle boy who was subject to the directions of the driver in making deliveries, was not a fellow servant of the driver while attempting to board the truck after having made a delivery.81 The fellow servant rule does not apply where a servant riding in an automobile is injured by the combined negligence of the driver and the employer. 82