any person who, intentionally or by negligence, injures it, making repair or rebuilding necessary, to recover the expense incurred." The court said: "The town was under an obligation to keep in repair its bridges and make them suitable for public travel, so that it shall incur no liability for their de fects, and it may have compensation from one who wrongfully, by negligence or otherwise, makes such repair necessary and so exposes it to the expenditure of money. Egerly's Case, 3 Salk. 183: The overloading of a wagon, thus damaging a highway, is a public nuisance. Speaking of civil liability it is said in 15 Am. & Eng. Enc. Law (2d. Ed.), p. 507. "Counties, towns and cities which are bound by law to maintain and keep in repair highways within their limits, have a property interest therein, and may recover damages of any person who wilfully or negligently destroys or injures such ways. Citing Inhabitants of Monmouth v. Gardiner, 35 Me. 247; City of Augusta v. Moulton, 75 Me. 284; Inhabitants of Brookfield v. Walker, 100 Mass. 94; Woodring v. Forks Township, 28 Pa. St. 355 (70 Am. Dec. 134); Town of Monroe v. Lumber Co., 68 N. H. 89 (39 Atl. 1019). Criminal liability is also asserted in numerous authorities. In Elliott on Roads and Streets (1st Ed.), p. 316, it is said: "We have had frequent occasion to say that an easement of the public in a rural road consists in the right to use it for the purpose of passing and repassing." Louisville, etc., R. Co. v. Whitley County Court, 95 Ky. 215 (24 S. W. 604, 15 Ky. Law Rep. 734, 44 Am. St. Rep. 220), is to the effect. that a county may maintain an action to recover damages for the injury or destruction of one of its highways. In Lawrence County v. Railroad Co., 81 Ky. 225, it is held that under their statute the county was the real party in interest, holding and controlling the highways and bridges therein for the benefit of the public, and that it has such interest in the highways and bridges as entitles it to an action in its own name for any injury thereto. The court said: "We need not consume time to demonstrate that an unlawful and wrongful obstruction of the highways and bridges constitute an injury for which the law gives a remedy." a cable or rope extending from the engine on one side of the stream to the horses on the opposite side. When the engine was about midway in the passage the bridge broke down, causing the injury complained of. Negligence of the county was charged in the original construction of the bridge, as well as in its maintenance. The principal defense was that the petition failed to show any compliance by plaintiff with the statute which required one who operated a traction engine over or across a bridge on a public highway to strengthen such structure by laying down extra planks. It was held that the statute had no application to a case where the engine was being hauled by In Hooksett v. Amoskeag Manfg. Co., 44 N. H. 105, it was held that a town has such an interest in the roadways and bridges which it erected on its public highways that it can maintain an action on the case against a wrongdoer for the obstruction of such a roadway or bridge. That was a case of flowage of a highway by the defendant, and, while not directly in point, the principle is the same as the one here contended for by the plaintiffs. City of Concord v. Burleigh, 67 N. H. 106 (36 Atl. 606), holds that, towns and cities, being bound by law to maintain and keep in repair the highways within their limits, have a property interest therein and may recover damages of any person who wilfully or negligently destroys or injures the ways. In Town of Monroe v. Lumber Co., supra, it is held that towns may sue for the obstruction or destruction of highways in their limits. It seems to have been a case of flowage. The court said: "It is useless at this day and in this jurisdiction to discuss the proposition that towns have not such an interest in the highways within their limits as to enable them to maintain an action on the case, for their destruction or obstruction." We refrain from further citation of authorities. Let it be conceded that the defendants had lawful right to test their trucks by driving them upon the public highways in the ordinary manner trucks are driven in the transportation of persons and property over the public highways, still such right can be no defense or protection to the defendants. where the facts, as stated, and for the purposes of this case are conceded, show that the acts of the defendants in destroying and injuring the highways in question were characterized by reckless, wilful and wanton misconduct, and reckless disregard of the rights of the township. Upon the whole record we are of the opinion that the court erred in directing a verdict and judgment for the defendants. What the evidence. may disclose upon another trial we do not know. For the errors pointed out the judgment of the circuit court is reversed and a new trial granted, with costs to the plaintiffs. animal power and was not being propelled in whole or in part by steam or other mechanical power. Speaking of the statutory requirement the court said: "The provision is one in derogation of the common right of the public to use the highway as an avenue upon which vehicles for the transportation of passengers, goods, freight, and traffic of all kinds may be freely moved, hav ing due regard for the rights of others, KELLY v. CITY OF WATERBURY. [Supreme Court of Errors of Connecticut, July 22, 1921.] 1. Pleading-Demurrer-Refusal to plead over. The decision of the trial court sustaining a demurrer to a complaint as to one of the defendants became the law of the case until reversed on appeal and a judgment in favor of such defendant, upon the neglect or refusal of plaintiff to plead over, was a necessary consequence. 2. Parties-Effect of sustaining of demurrer as to one defendant. In an action for damages against a city and certain individuals, where the court sustained a demurrer by the city because the operation in which the injury occurred was a governmental function, the city was removed from the case and, until an amendment or an improved cause of action against it had been filed, it was no longer one of the defendants. 3. Appeal and error-Demurrer-Effect of failure to appeal from ruling. Where no appeal was taken from the sustaining of a demurrer to a complaint as against a city which was one of the defendants, the ruling of the court that the city was not liable because the acts charged against it as negligence were done in the performance of a governmental duty is not before the court on appeal. 4. Trial-Nonsuit as to one defendant-When proper. In an action for damages for personal injuries against several defendants, where certain evidence as to one of the defendants was properly excluded, and, without such evidence, there was no evidence to sustain a judgment against him, a motion to set aside a nonsuit as to such defendant was properly denied. 5. Trial-Order of evidence-Exclusion of hearsay until necessary to understanding of other evidence. In an action against the superintendent of police and a patrolman who was driving a patrol wagon which injured plaintiff, testimony of plaintiff's sister as to what she told the superintendent she had heard officers say as to the competency of the driver, was properly excluded until such time as it should become admissible to make the superintendent's reply understandable. 6. Evidence-Admissions-Silence. Where a superintendent of police, who was made a party defendant with the driver of a patrol wagon in an action for injuries received through such driver's negligence, was told what other officers thought of the fitness of such driver, the subject matter of the statement was not within the line of his duty and, if he had remained silent, that fact could not have been used as an admission against him. 7. Evidence-Expert testimony-Opinion as to competency of driver of automobiles. In an action for damages based upon the negligence of the driver of a police patrol automobile, one who duly qualified as to the driving, handling, and care of automobiles may testify as to the proper course of conduct in the given circumstances, but he cannot give an opinion, based upon the evidence, as to whether the driver in question was incompetent or inexperienced. Action by an administrator for the death of his intestate against the driver of a police patrol automobile, a sergeant of police, the superintendent of police and the city. Demurrer of the city sustained, and nonsuit entered in favor of the superintendent and sergeant of police. Appeal by plaintiff from the denial of a motion to set aside the nonsuit as to the superintendent of police and by the driver from a judgment against him for damages. No error. in plaintiff's behalf, by expert operators of automobiles that a machine of the type operated by defendant, at a speed of 5 or 6 miles an hour, could be stopped in 8 or 10 feet, and in any event in much less than 75 or 80 feet. The court held, in affirming the judgment, that this testimony was competent. Crandall v. Krause, 165 Ill. App. 15 (1911). Plaintiff brought an action to recover damages for personal injuries sustained by him when he was struck by an automobile belonging to and driven by defendant while plaintiff was crossing a triangular space formed by the intersection of three streets. It was charged that the operation of the car without adequate lights, and without sounding due warning of its approach was the cause of the accident. Appealing from a judgment for plaintiff, defendant assigned as error the permission of cer tain experts to testify as to the distance within which a car of the kind defendant was driving could be stopped. Affirming the judgment, the court said, with respect to this assignment: "We hold that the trial court did not abuse its discretion in finding the witnesses qualified, that the subject was one for expert testimony, and that there was no fatal defect in the questions asked. It might further be well held that there was no prejudice here, even if there was technical error. "" Johnson v. Quinn, 130 Minn. 134, 153 N. W. 267 (1915). B. After deflecting impact. While the defendant was driving his electric automobile along a city street, another automobile, approaching from defendant's left at high speed, struck the left front wheel of the electric with such force that the electric was di For appellant-Nathaniel R. Bronson, Lawrence L. Lewis and Charles E. Hart, Jr. For appellees-Francis P. Guilfoile and Ulysses G. Church. WHEELER, C. J. This action is brought to recover damages for the loss of life of the plaintiff's intestate, caused by the alleged negligence of Petrosky, a patrolman of the city of Waterbury, in driving its patrol automobile when in the execution of the business of the police department of the city and by order of McLean, the sergeant of police. The complaint alleges: That Superintendent of Police Beach had the authority to provide experienced and competent drivers for the patrol automobile, and although he knew Petrosky was not an experienced and competent driver he permitted him to serve in this capacity; that McLean, a sergeant of police, had assigned Petrosky to this duty although he knew him to be inexperienced and incompetent; that the city of Waterbury was alleged to be made liable because of the said negligence of Beach, McLean, and Petrosky. The demurrer of the city of Waterbury to the complaint was sustained upon the ground that the alleged wrongful acts of Beach, McLean, and Petrosky were performed by them in the exercise of a public and governmental function for which the city could not be held liable. The complaint was not attempted to be amended so as to avoid the decision verted from its course so that it ran up to and upon the sidewalk at defendant's right, striking and killing plaintiff's husband. Trial of plaintiff's action for damages resulted in judgment upon a directed verdict for defendant. Plaintiff, appealing, assigned as error, inter alia, the refusal of the trial court to permit her to ask a witness, testifying as an expert, the distance within which an electric automobile like that driven by defendant could be stopped, after it had been struck and deflected from its course by the impact shown to have been given to defendant's car in the case at bar, assuming that at the time of the impact the electric car was going ahead at first or second speed. The court sustained the ruling, on the ground that the matter was not one for expert testimony. "The only aid an expert could have given," said the court, "would have been for him to have stated within what distance a vehicle of the type in question and run at the rate given could have been stopped. It was impossible for him to form any more accurate judgment of the effect of the impact of the touring car against the electric coupé than the jury could form for itself." Bishop v. Wight, 221 Fed. 392 (1915). II. Effect of sudden change in course. In Martin v. Kansas City (Mo. App.), 224 S. W. 141 (1920), an action to recover damages for injury to the plaintiff while a passenger in a hired automobile, due to a collision with a pile of lumber alleged to have been negligently left by the defendant in the driveway portion of a viaduct, it was held not error to refuse to allow a witness to state that "if a rapidly moving automobile should make a sud |