mobile must exercise ordinary care not to increase the danger of such undertaking, or create a new danger, and will be liable to the person so invited for injuries caused by his failure thus to exercise ordinary care for his guest's safety." It further held that the guest is required to warn the driver if he is incompetent or careless, or is not taking proper precautions, but ordinarily the driver is entrusted with caring for the safety of the occupants of the vehicle, and the guest is entitled to rely upon the assumption that the driver will exercise such ordinary care, unless an obvious danger appears. If a danger not apparent to the driver appears, the guest should give warning. Usually the question of due care on the part of the guest or passenger is for the jury. In this case the finding of the jury must have been that the driver was guilty of negligence and that the decedent was not guilty of contributory negligence, and such finding was conclusive. The verdict was not excessive, and the judgment was affirmed with costs. Tennessee Cent. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S. W. 225 (1920).

The plaintiff, who had been invited by defendant to go to a certain place in his car on a hunting trip, was seated directly behind the defendant, who was driving. After proceeding for some miles on the trip, an accident happened, giving basis to the action for negligence wherein the plaintiff claimed that defendant was negligent in op

erating it, so that the plaintiff was injured. There was a motion for a nonsuit, the ruling on which was reserved until the coming in of the verdict, and after a verdict for the plaintiff, the defendant also moved for a new trial. The court held that the verdict of the jury necessarily assumed that questions as to the negligence of the defendant, the contributory negligence of the plaintiff, and whether the parties were engaged in a joint enterprise, were found in favor of the plaintiff, and the evidence sustained the verdict as to the first two questions. The court also held that if the guest was injured through the negligence of the driver, and such guest was free from contributory negligence, a recov ery could be had. The evidence also failed to show that the parties were engaged in a joint enterprise, within the principles imputing negligence of the defendant to the plaintiff. The motions were denied with costs. Wilmes v. Fournier, 111 N. Y. Misc. 9, 180 N. Y. Supp. 860 (1920).

A plaintiff and a defendant had been friends for some years, and agreed to take an automobile trip to New York. Later two other men were asked to join in the trip, and the four men agreed to take the trip and divide the expenses. The plaintiff was selected as cashier, and he paid all expenses, including hotel bills, meals, gasoline and oil. On the trip, when near a town, the defendant was driving the car on a smooth asphalt road, and the

1. Defendant admits:

over.

thereon.

party overtook a car going in the same direction. The defendant testified that he was driving about 25 miles an hour, that in order to pass the car overtaken it was necessary to drive with the two left wheels of the car on a dirt shoulder adjoining the asphalt pavement, that after he had passed the car and had gone about a mile, the rear left tire blew out, causing the automobile to sway to the right, that he promptly shut off the gas and swung the car to the left to avoid hitting a tree, and that the car ran into a hole near the edge of the pavement and turned over, and that after the accident the four men in the automobile were taken to a hospital, and that they afterwards settled with the plaintiff, for their respective shares of the expenses incurred on the trip. The plaintiff testified that the defendant drove at a rate of 40 to 52 miles an hour just before the accident, that he warned him not to drive so fast, and that the defendant did not heed the warning. The plaintiff's action was for damages for personal injuries and he alleged negligence in driving at an excessive rate of speed, causing one of the rear tries to puncture and blow out. The jury returned a verdict in favor of the defendant, and a motion for a new trial was overruled, after which judgment was entered on the verdict. On appeal by the plaintiff, the court held that one riding in an automobile as the guest of the owner, was in a sense in the custody of such owner, who was

required to exercise reasonable care for the safety of the guest. Although there was no direct evidence as to what caused the blowout, the negligence of the owner was a question for the jury. An instruction that the allegation in the declaration that the plaintiff was riding as a guest of the defendant was a necessary and material part of the plaintiff's case was not erroneous. The instruction charged that if the persons riding in the automobile were engaged in a joint enterprise, then the proof did not sustain the plaintiff's allegation that he was a guest, and he could not recover, and this was proper. The plaintiff's claim that he was a guest was not supported by proof of his occupancy of the automobile, and he failed to show that he was a passenger. The judgment was affirmed. Barnett v. Levy, 213 Ill. App. 129 (1919).

In an action for the death of a woman, a sealed verdict for a defendant was held against the court's plain charge. To find the defendent free from blame, the jury must have disregarded his own account of the way he ran the car towards the shore, ending in a breakneck plunge through barriers to the beach beneath. If the jury had the unfounded idea that a person having a friendly, gratuitous ride was not entitled to proper care, and had no remedy for such carelessness, they failed to heed the court's instructions. The order setting aside the verdict for the defendant was affirmed. Atwell v. Winkler, 196 N. Y.

App. Div. 946, 188 N. Y. Supp. 158 (1921).

Plaintiff and her husband were friends of a defendant, and were accustomed to going riding as defendant's guests in his automobile. The husband having announced that he would go on a trip to a neighboring town the next day, defendant suggested that he would drive the wife to such town, and meet the husband, and they could all return together in the evening. Pursuant to this plan plaintiff and defendant started by automobile for the neighboring town, plaintiff being seated on the front seat beside the defendant. At a suburb there were various delays, which the defendant undertook to make up by fast driving. The wife afterwards stated that she repeatedly requested the defendant not to drive so fast, and that he replied that it was necessary to meet the train, whereupon she answered that, rather than get hurt, they had better miss the train. The road was a country road, high in the center and down on the sides, and the wife thought they were traveling at about 40 miles an hour. Finally the car left the road and turned into a tree, and the wife, when she became conscious, found herself lying in a ditch about 10 feet from the car. The defendant was a physician and as such treated the wife for the injuries sustained, and afterwards she went riding with him as before. But the accident caused serious and permanent injuries, she suffered much pain and was treated

in two hospitals, and she was unable to return to her work as a professional singer until the winter of 1917-18. She brought an action to recover for the injuries sustained, and at the trial, at the close of the plaintiff's evidence, the court instructed the jury to return a verdict finding the defendant not guilty, which they did, whereupon judgment was entered. By writ of error, the plaintiff sought to reverse such judgment. The court held that it was for the jury to determine whether the defendant was guilty of negligence in driving as he did, in spite of the repeated protests of the plaintiff. Under a general charge of negligence in the plaintiff's declaration, and under the facts and circumstances disclosed, the doctrine of res ipsa loquitur applied. Also under another count of the declaration, the plaintiff made out a prima facie. case of negligence under the statute (J. & A. ¶¶ 10010, 10017), as the automobile was driven on a public highway at 40 miles an hour, in excess of 25 miles an hour. The plaintiff's evidence did not show that she was guilty of contributory negligence as contended. The judgment of the superior court was reversed and the cause remanded. Masten v. Cousins, 216 Ill. App. 268 (1919).

B. Intoxicated owner as driver.

Plaintiff brought an action for the death of her husband, claiming that he was killed while a guest of the defendant in an automobile owned and driven

by defendant. It appeared that the defendant was intoxicated, which fact was known to the deceased, while driving the car. There were five or six persons in the car, all drunk together, and, after crossing a bridge, the defendant began to drive the car fast. Some of the parties cried to stop, but the speed increased. A turn in the road was approached at a speed of 30 to 40 miles an hour, and at the time of the accident when the car was overturned the speed was at least 15 miles an hour. The plaintiff's intestate was killed and the others narrowly escaped death. The jury returned a special verdict on which judgment was rendered against the defendant for $3,000. On appeal the court held that the verdict was sustained by the evidence showing that the deceased came to his death by means of the reckless driv ing and gross neglect of the defendant. The deceased might well have concluded that since others went to ride with the defendant, there was no great or apparent danger, even though they were intoxicated. The accident occurred from a lack of care and a desire to do a dare-devil stunt and frighten the guests. The jury found that the reckless driving was the proximate cause of the death, and the verdict was moderate. Accordingly the judgment was affirmed. McKeen v.

sustained by reason of the careless and negligent operation of an automobile driven by the defendant, in which plaintiff was riding by invitation. The accident occurred on the morning of December 25, on a state highway, when the automobile driven by defendant skidded off the roadway and turned over, crushing the plaintiff under the steering wheel, breaking her collar bone, and inflicting other injuries. The testimony was in conflict as to the manner of operating the automobile and the rate of speed. The plaintiff testified that the defendant was drinking whisky, that he drove at the rate of 45 miles an hour, once running off the highway, that she was nervous and alarmed and requested slower driving, and that the machine was going at the rate of 45 miles an hour when the accident occurred. The defendant denied driving in excess of 25 miles an hour, and also denied that the plaintiff requested slower driving. He declared that the morning was foggy and the road slippery, and that the machine skidded without any fault on his part. A witness who arrived immediately after the accident testified that the road was moist but not wet, and that the road was in good condition. Other witnesses familiar with the road testified that skidding might happen if a speed of 20 or 25 miles an hour was maintained. They were permitted to testify as to similar accidents occurring under similar weather conditions. The defendant was an experi