did not appear whether the truck was at the time crossing the tracks or proceeding along the track, but in any event a street car of the defendant company, approaching at this moment, struck and damaged the truck and its load. There was evidence tending to show that the truck had come to a stop some time before the street car came in sight, and it was clearly shown that the truck was at a standstill when the motorman first saw it. The negli gence chiefly relied upon was that of running the car at a speed in excess of that permitted by ordinance, with the result that it was impossible to stop the street car in time to avoid the collision. The first judgment recovered by the plaintiff was reversed because of the failure of the trial court to take from the jury the issue based upon the alleged negligent failure of the motorman to sound the gong in warning, this being held error because not approximate cause of the accident. The judgment recovered by the plaintiff on the second trial was affirmed. Mobile Light & R. Co. v. R. O. Harris Grocery Co., 17 Ala. App. 354, 84 So. 867 (1920). For opinion on second appeal, see Ala. App. - 88 So. 55 (1921).

2. While backing from garage. Plaintiff's garage faced a city street along which ran the defendant's single track street car line, the nearer rail of which was about 4 feet from the sidewalk in front of the garage. From the garage or this sidewalk there was an unobstructed view of the street to the next intersection, where the street car made its last stop before passing the garage. Plaintiff backed his automobile out of the garage and across

the sidewalk, but as he reached the curb the engine stalled, with the result that the car came to a stop with the rear wheels on the car track. It was there struck and damaged by an approaching car. The case came up on exceptions following a judgment for defendant. It was held no error to exclude testimony tending to show that plaintiff expected the motorman to stop the car, and that he had reasonable grounds for so expecting, for the reason that these considerations were not factors in causing anything done or omitted by plaintiff. It was further held that a request to charge that plaintiff "had a right to assume that the motorman would use reasonable care to avoid running him down" was rightly refused, lacking as it did the qualification stated in the charge given that this assumption "does not excuse him from taking reasonable care himself, and making reasonable observations to see that he does not get into a dangerous place." Gadbois v. Bay State St. R. Co., 216 Mass. 188, 103 N. E. 294 (1913).

3. While entering private driveway.

Plaintiff, attempting to drive his automobile out of the street and into an adjacent yard, stalled at the curb, so that the car came to a standstill close to the defendant's tracks, with the top of the car, which was down, projecting over them. Plaintiff and his companions got out, and one of them attempted to crank the engine, but while they were so engaged, a car approached on the track, striking the projecting top and upsetting the automobile. This action was brought to recover for the resultant injury to the

machine. Plaintiff's theory of the case was that the motorman had an unobstructed view of the automobile, obviously in a dangerous position, while still 150 feet away, and that he nevertheless came on, with unslackened speed, when he could and should have stopped in time to avoid striking the machine. The motorman testified that he saw the machine when far enough away to have stopped, but that it appeared to him to be far enough away so that his car could clear it; that he did not then see that the top of the auto projected back over the track, because the light was poor and the top was of an inconspicuous light gray color; that he first shut off the power but did not set the brakes, and then turned on the power again, so continuing until, when within 10 feet of the automobile, he saw for the first time that he could not clear the top; that he then shut off the power and set the brakes, but too late to stop before the collision. Judgment for defendant was reversed, on appeal, because of the failure of the trial court to instruct the jury in effect, as requested by plaintiff, that if the motorman saw the automobile close to the track, helpless and in close and dangerous proximity to the track, and had time to stop the car so as to avoid hitting it, but did not do so but instead of doing so ran by taking the chance that he would not hit it, he was negligent as a matter of law. "This error," said the court, "was highly prejudicial in connection with the instructions previously given, as it allowed the jury to infer that if the motorman was merely convinced, without the exercise of care on his part, that he could run by in safety, the

defendant was not negligent." Mertz v. Connecticut Co., 217 N. Y. 475, 112 N. E. 166 (1916), rev 'g 161 N. Y. App. Div. 941, 145 N. Y. Supp. 1133 (1914). Wilcox v. Swan and Morris v. Swan,

R. I., 116 Atl. 658 (1922), while tried separately below, were considered together on appeal from an order in each case setting aside a verdict for the plaintiff and directing a new trial on the ground that the verdict was against the preponderance of the evidence. Both actions were based upon a collision between a street car operated by servants of the defendant and an automobile owned by the plaintiff Wilcox and being operated by the plaintiff Morris. The accident occurred when Morris attempted to drive the car from the street, where he had been following a southbound course, into a private driveway leading to the premises of the plaintiff Wilcox, a movement which required him to drive across the west or southbound street car track, which ran between the traveled portion of the street and the curb. At this time a southbound street car was approaching on this track, but at what speed and distance did not appear. In any event the car stalled on the track and was run down by the street car. The evidence was conflicting as to what was done by the motorman with reference to seeking to avoid the collision and as to his opportunity to do any thing. It showed, however, that plaintiff Morris had a clear view up the track towards the approaching car for 900 feet at the time he started to drive across the track. The court held that "there was nothing which indicates that the trial justice was not fully warranted in granting a new trial in each

"Yes; exceeding speed limit.

case, on the ground that the verdict was against the preponderance of the evidence."

4. Result of collision with another vehicle.

The automobile in which plaintiff was a passenger collided with another automobile, skidded, stalled and stopped, standing diagonally across the tracks of the defendant street car company, and, according to plaintiff's testimony, was in this position when struck by defendant's street car on a well lighted city street. Plaintiff further testified that at the time the automobile stopped the street car was nearly a block away, approaching at a speed less than that usually maintained by street cars, and that it continued to approach at that speed until the collision occurred. There was testimony for defendant to the effect that the automobile ran upon the track immediately ahead of the street car. The case was submitted to the jury under an instruction to the effect that a verdict for plaintiff would not be warranted unless the jury believed that the automobile came to a stop on the street car track a sufficient length of time before the collision for the motorman, in the exercise of due care, to have stopped the street car in time to have avoided the accident. In affirming judgment for plaintiff, the court held that this charge fairly submitted the real issue of the case. Niman v. Detroit United Ry., 214 Mich. 456, 183 N. W. 48 (1921).

Plaintiff K, driving his automobile along a street paralleled by defendant's

street car line, saw a light ahead of him which he mistakenly thought was that of a vehicle traveling in the same direction. He turned to the left to pass, and came into collision with a horse and wagon traveling towards him, with the result that the automobile became stalled across the tracks of the defendant's line. Seeing a car approaching, K ran towards the car about 200 feet, waving his hands as a signal to stop. Plaintiff R, riding in the automobile with K, remained in the car, apparently caught so that he was unable to escape. The street car motorman failed to see or heed the stop sig nal, and ran into the stalled automobile, injuring R and damaging the automobile. It was held that the issues as to the negligence of the motorman and the contributory negligence of the plaintiffs should have been submitted to the jury, and, pursuant to the stipu lations under which the cases were submitted following a directed verdict for defendant in each case, judgments were entered against defendant without discussion of the question whether the negligence of K should be imputed to R.

Keeney v. Springfield St. R. Co., 210 Mass. 44, 96 N. E. 73 (1911).

5. At street intersection. Plaintiff, traveling north on a city street east of and alongside defendant's street car tracks, approached an intersecting street just as one of defendant's cars, coming from the east, swung around the corner towards, the south. When the plaintiff and the motorman discovered each other, they were between 10 and 15 feet apart.

"Yes.

"Nothing.

According to plaintiff and his witnesses, plaintiff at once stopped his car, but when he attempted to back out of the street car's way he found that he had killed his engine, so the car remained standing until the street car ran into it.

The motorman and another witness testified, on the other hand, that the street car was stopped as soon as the automobile came in sight, but the automobile came ahead and ran into the standing street car. The jury found for plaintiff, and he had judgment on their verdict for $40. On appeal it was held that the evidence presented a case for the jury on the issues of defendant's negligence and plaintiff's alleged contributory negligence, and that no reason appeared for interference with the result. Moreover, said the court, assuming negligence on the part of the plaintiff, there was still evidence from which the jury could properly find that defendant's employees in charge of the street car had the last clear chance to avoid a collision, the failure of plaintiff's engine having left him helpless to get out of the way. Joyner v. Interurban R. Co., 172 Iowa 727, 154 N. W. 936 (1915).

6. After stopping for railroad crossing.

While plaintiff was driving his automobile along a city street, running partly within the track of the defendant street car company, he stopped his car at a railroad crossing to await the passage of a train. After the train had passed, he attempted to start, but the engine stalled, whereupon he alighted and started to crank the engine. While he was so engaged, a

street car, approaching from the rear of his machine, struck the car with such force as to propel it along the street a considerable distance. Plaintiff was severely injured in the collision, and brought this suit to recover damages. Having been awarded $1,000 damages, he appealed on the ground that the judgment was inadequate. It appeared without dispute that the automobile was in full view of the motorman at the time he ran it down, and the defendant offered no evidence tending to excuse or palliate the act of running the machine down. Ordering a new trial, the court held that, under the circumstances shown, the plaintiff was entitled to an instruction authorizing punitive damages, in addition to the elements of compensatory damages submitted at the first trial. Woody v. Louisville R. Co., 153 Ky. 14, 154 S. W. 384 (1913).

7. In fenced-off right of way.

About 10 o'clock on a December night there was a collision between an electric car of the plaintiff street railway company, operated by the plaintiffs L and H as motorman and conductor respectively, and a motor truck owned by the defendant and operated by his agent V with defendant's authority and on his business. The accident happened on a public highway at a point about 100 feet westerly from an intersecting street, and where the railway was operated through a sparsely settled district at or near a village. The railway track, although wholly within the street, was on its southerly side and separated from the traveled way by a

"'Yes.

fence. The grade of the track was lower than the traveled way. The construction was that commonly known as steam railroad construction, the rails and sleepers being exposed. On account of a considerable fall of snow, the space between the ties was somewhat filled with the snow and ice, and for a like reason travel upon the adjoining portion of the highway was somewhat difficult. V testified that on the night of the accident he had been having much trouble in driving the truck, on account of the snow and ice; that shortly before reaching that point in the street where the fence above mentioned began, the truck slipped out of the traveled way and into the street car track; that he then attempted to follow the track through to the point where the fence ended, and had gone about 200 feet on that course when the car stalled in the snow; that he and his assistant were attempting to start the car when they saw the street car approaching from the east, but did nothing to warn the motorman of the situation, relying upon his seeing a red lantern which, V testified, was swinging at the rear end of the truck; that when they saw that the street car would not stop they climbed the fence to avoid injury themselves. Other testimony tended to show that the street car approached the point of collision at a speed between 15 and 20 miles an hour, with the headlight showing clearly; that there was no lantern on the truck; that the motorman did not see the truck until he was within 20 feet thereof, when he put on brakes and reversed, with such alacrity that the street car did not move the truck

when the collision took place. There was conflicting testimony as to the extent of prior use of this portion of the track for ordinary vehicles, and it also appeared that both before and immediately after the accident other vehicles successfully passed over that part of the street where V had professed to be unable to drive the truck. Overruling defendant's exceptions to verdicts for the plaintiffs, the court held that if defendant failed to display a red light at the rear end of the truck, in violation of statute, that would be evidence of negligence; that the question of the defendant's negligence in failing to warn the motorman, considered in view of the alleged lack of light and the alleged use of a part of the street not customarily traveled except by street cars, was for the jury; that it was likewise a jury question whether the plaintiffs operating the car were guilty of negligence contributing to their own injury in failing to see the stalled truck early enough to stop before the collision. Lounsbury v. McCormick, Mass. 129 N. E. 598 (1921).

B. Stuck at defective crossing. Making repairs on a portion of its track, the defendant street railway company tore up a considerable section of the street, establishing at one point a temporary crossing for vehicles. Plaintiff, driving his automobile along this street, attempted to use this temporary crossing. One of the front wheels struck a rail protruding nearly three inches above the surface and skidded sidewise, causing the car to slide into a position such