HUGHES v. HUDSON-BRACE MOTOR CO. et al. Especially where a petition is not attacked by motion or demurrer, the fact that it does not use the word negligence or a derivative thereof does not prevent VII. Killing horses, 972-974. VIII. Frightening horses, 974-975. IX. Driving off bridge, 975. X. No distinction between statute and ordinance as to rule of negligence, 975. Cross-references. Liability of owner of vehicle for injury to infant trespasser, see 20 N. C. C. A. 144-168; collision between motor vehicle and bicycle rider, see 20 N. C. C. A. 228-248; liability for injury by overtaking vehicle to pedestrian on street or highway, see 20 N. C. C. A. 257-279; liability of owner of automobile for injury to pedestrian at street crossing where ordinance gives pedestrian precedence, see 14 N. C. C. A. 10891101; liability of owner of automobile for injury to pedestrian near moving street car, see 15 N. C. C. A. 84-100; liability of owner of automobile for injury to person walking in front of or behind standing street car, see 15 N. C. C. A. 199-209; liability of automobile owner or driver for injury to pedestrian at street crossing in absence of ordinance regulating precedence, see 15 N. C. C. A. 978-1012; liability of owner or driver of automobile for injury to person walking on city street elsewhere than at street intersections, see 15 N. C. C. A. 880-917; liability for injury to pedestrian struck by automobile while making emergency turn to avoid collision with another vehicle or pedestrian, see 15 N. C. C. A. 776779; right of way at street intersection as between drivers of vehicles, see 15 its statement of a cause of action for negligent injury, where the acts complained of are alleged to have been illegal and in violation of the defendants' obligations. 2. Evidence-Effect of admission as to act in scope of employment. An admission in the answer that the driver of a car at the time of its collision with another was engaged in demonstrating cars for its owner is held to dispense with any evidence on the subject. 3. Motor vehicles-Violation of speed statute as contributory negligence as question for jury. The question whether the plaintiff in exceeding the statutory speed limit and in failing to see another car in time to prevent a collision was guilty of negligence contributing to his injury is held to have been one of fact, properly submitted to the jury. N. C. C. A. 463-480; liability for injuries caused by animals taking fright on meeting motor vehicles in street or highway, see 18 N. C. C. A. 589-626; liability for injury caused by motor vehicle frightening animal overtaken, or passed while standing, on or near street or highway, see 18 N. C. C. A. 472494; right to recover for injuries alleged to have been caused by defendant's violation of statute or ordinance where plaintiff was also guilty of violating such statute or ordinance, see 20 N. C. C. A. 653-660. Prefatory Note. This annotation is supplementary to the note to Schell v. Du Bois (Ohio St.), 13 N. C. C. A. 982, where the earlier cases on the present subject are collected and discussed. I. Injury to pedestrian. A. At street intersection. In Darish v. Scott, 212 Mich. 139, 180 N. W. 435 (1920), which was an action to recover damages brought against the defendant for the killing of plaintiff's intestate by driving into her with his automobile at a street intersection when she was attempting to cross the street, the case was tried upon the theory that the defendant drove his car into and through a congested area in a reckless and negligent manner, in that the speed of the car was excessive, if measured either by the statute or by the ordinance, and that he did not give sufficient warning of his approach. In this case the court * * * * said: "If it be true that the defendant The ap Plaintiff claimed that while walking across the street he was knocked down and injured by the defendant's automobile. The accident occurred at a street intersection, and among the acts of negligence charged against the defendant was that he approached the intersection at a rate of speed prohibited by the city ordinance. pellate court in this case approved an instruction of the trial court which told the jury that, "if they found that, while plaintiff was crossing the street at the time and place referred to and was traveling along places customarily used by people in crossing the street, he was struck by the automobile, and further found that it was being operated at a speed in excess of 10 miles per hour in violation of 4. Motor vehicles-Negligence-Effect of ordinance giving vehicle right of way according to direction of movement-Sufficiency of evidence. Where by ordinance a vehicle approaching a street intersection from one direction is given the right of way over one approaching it from another, the driver of an automobile from the disfavored direction is not required under all circumstances, before attempting to cross, to await the passage of every car he can see coming from the other direction which by any possible burst of speed might reach the crossing of their paths ahead of him. It is not negligence as a matter of law for a driver from either direction to undertake to cross the intersection ahead of a car which is at such a distance that he has ample time to get across, provided the other car does not exceed the highest speed he should reasonably anticipate. And it is held that in the present case the evidence warranted a finding that the defendants' car was coming so rapidly that the plaintiff, in the exercise of due diligence in that regard, underestimated its the ordinance fixing that rate of speed defendant placed him." Raymen v. over street intersections, then such viofation would be negligence, and if they further found from the evidence that as a direct result of that violation, if any, the plaintiff was injured, they should find for plaintiff. Schinogle v. Baughman (Mo. App.), 228 S. W. 897 (1921). Plaintiff, while crossing a street at its intersection with another street, was run into by defendant's automobile. A statute expressly provided that any person operating a motor vehicle upon approaching a pedestrian who is upon the traveled part of the highway and not upon a sidewalk, shall slow down and give an audible signal." The evidence tended to show that defendant was driving his car at a high rate of speed and that when he approached the crossing over which plaintiff was passing, instead of slowing down, he continued at the speed he was traveling and attempted to avoid the plaintiff by turning to one side. As he did so, plaintiff either stopped or stepped backwards and the car struck him. It was held that as defendant had violated the statute he was guilty of negligence. "The negligence of defendant," the court said, "in violating the statute by failing to slow down, as he says he did, or failing to both slow down and sound his horn, as plaintiff says he did, was the legal cause of the accident, and not the futile and, perhaps, ill-judged efforts of plaintiff to save himself from the peril in which the negligence of Galvin, Mo. 229 S. W. 747 In the case of Lady v. Douglass, 105 Neb. 489, 181 N. W. 173 (1920), which was an action for the death of a pedestrian run over by an automobile at a street intersection, the court adhered to the rule laid down in Stevens v. Luther, 105 Neb. 184, 180 N. W. 87, that the violation of a statute or ordinance fixing a rate of speed for automobiles is not negligence per se, but evidence proper for the consideration of the jury in connection with all the other facts and circumstances in evidence upon the question of negligence. B. Between street intersections. 1. Generally. Plaintiff, a child seven years of age, by next friend sued the defendant company to recover damages for injuries sustained when run into on the street by the defendant's auto-truck. The suit was grounded upon an alleged violation of a city ordinance which provided, substantially, that it should be unlawful to operate or run any motor vehicle upon the public highways of the city recklessly or at a rate of speed greater than was reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger property or the life or limb of any person. On appeal by defendant from a judgment for the plaintiff, the supreme court approved a charge of the trial court to the speed and reasonably believed that he had abundant time to cross until it was too late for him to do anything to avoid a collision. 5. Appeal and error-Harmless error-Inclusion in special finding of act of negligence shown by the evidence but not pleaded. Where, in an automobile collision case, a question is submitted to the jury calling for a statement of the character of the defendants' negligence, a reversal of a judgment in favor of the plaintiff is not required by the answer, "entering intersection on wrong side of street at excessive speed," although the defendants' being on the wrong side of the street was not pleaded nor submitted to the jury. [Headnotes by the Court.] T Appeal by defendant from a judgment in favor of plaintiff in an' effect that if the jury were reasonably satisfied by the evidence that plaintiff was injured as a proximate consequence of the violation of the ordinance by the defendant, then a prima facie case of actionable negligence was made out. The court further held that it was not necessary that the complaint should carry an averment of negligence eo nomine, for the failure of defendant's agent to observe the duty imposed by the mandatory ordinance was negligence per se. Hood & Wheeler Furniture Co. v. Royal, 200 Ala. 607, 76 So. 965 (1917). Plaintiff, as administrator, brought an action to recover damages for wrongful death against the defendant who, while driving his automobile along a city street, ran into and fatally injured plaintiff's intestate. Plaintiff's petition was based primarily upon the claim that the defendant did not operate his machine in a reasonable and proper manner, having regard for the width and traffic, use and the general and usual rules of the highway, in that he ran the car near the center of the street without having it under control and without having suitable brakes and appliances to stop or slow down so as to protect the life and limb of plaintiff's decedent. Defendant was also charged with operating his car at a greater speed than eight miles an hour and in the business and closely built-up portion of the city, in violation of the statute. Upon the trial the defendant offered in evidence an ordinance of the city defining the con gested district of the city, for the purpose of showing that the accident occurred at a place outside of this district. In holding that the trial court erred in excluding this ordinance, the supreme court said: "This court has held that the violation of an ordinance is negligence per se, and that would be particularly true of an ordinance regulating speed within the municipality. If such ordinance was violated, and such violation was a proximate cause of an injury, the ordinance would be clearly competent upon the issue of negligence. If, upon the contrary, the ordinance was duly observed, it is difficult to understand why it should not excuse liability, because we cannot conceive of a legal wrong being committed while the law is being all the while obeyed. The two positions are inconsistent, irreconcilable. If the ordinance is admissible to fix negligence, it is also admissible to disprove negligence. The defendant below was entitled to the admission of the ordinance in question, and because the same was denied to him there is error prejudicial to his substantial rights, for which the judgment below is reversed." Weimer v. Rosen, 100 Ohio 361, 126 N. E. 307. (1919). action for injuries received in a collision between automobiles at a street intersection. Affirmed. For appellants-Carson & Miller and Busby, Sparrow & Patterson. For appellee-L. O. Carter. MASON, J. Ewart S. Hughes was driving an automobile west on Washington avenue in Kansas City, Kan., while L. E. Tanner, who was in the employ of the Hudson-Brace Motor Company, was driving one belonging to that company north on Sixth street. The cars came together speed and signals might be considered on the question of his negligence, the ground of the exception being that the plaintiff saw the truck in ample time to escape, so that such violation had no causal connection with the accident. The exception was overruled, however, the court saying that the jury might conclude that after the plaintiff saw the truck neither actor was negligent, and that if the driver had been traveling at a proper speed, or had given seasonable warning of his approach the accident would have been avoided. 2. Passing in front of street car. The case of Berg v. Michell, 196 Ill. App. 509 (1915), was a suit for damages for injuries sustained by plaintiff who was struck by defendant's automobile while a foot passenger on a city street. Plaintiff was walking diagonally across the street, and passed by the front of a street car that had stopped to discharge and take on passengers. He was struck immediately after clearing the car tracks. One of the negligent acts charged against the defendant was that he was driving his automobile at a speed not permitted by the city ordinance. The accident occurred in the nighttime, and the court laid down the rule that under the Motor Vehicle Act of Illinois (J. & A. ¶ 10010), prohibiting the driving of motor vehicles on public highways at unreasonable speed and making the driving of such vehicles on such highway at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, driving a motor vehicle on such highway at a speed in excess of ten miles an hour will not be a violation of the statute and will not amount to negligence, where it appears that, owing to the deserted condition of the streets at night or the lack of traffic thereon, such speed is reasonable and proper and will not endanger life or limb or the property of any person. 3. Boarding or alighting from street car. Plaintiff was struck and injured by an automobile driven by defendant near a street intersection while plaintiff was about to enter a street car. Violation of the terms of a city ordinance was charged against the defendant in that he drove within less than 3 feet of the street car at a high rate of speed. The jury was instructed that between street intersections the maximum rate of speed allowed automobiles under the city ordinance was 20 miles an hour, and that any greater speed would constitute negligence and entitle the plaintiff to recover unless her injuries were caused proximately by her own negligence. The instruction was excepted to on the ground that there was no evidence in the case that the automobile was being driven at more than 20 miles an hour. "If so," said the court in overruling the exception, "it is difficult to see how the instruction could have been prejudicial, but, while no one testified in express |