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In Re Heverin (1875) 32 Phila. Leg. Int. (Pa.) 188, an attorney, upon the court's refusal to adjourn to allow him to prepare a reply to the commonwealth's counsel, replied: "Then if you will not give me time, I will not speak unless my legal rights are sustained. Let the responsibility rest with the court," and made the same rude answer when the court suggested that he might address the jury following the address made by the prosecuting attorney. Again, after the court had charged the jury, he said with great vehemence: "I desire your Honor to say to this jury there is not a word of evidence to warrant a conviction." The court having declined so to charge, he continued in the same manner: "Then I ask that my client shall be heard," etc. Other indignities and insults were offered the court, for all of which the attorney was adjudged in contempt and fined. Said the court: If the respondent had conceived that his client was aggrieved by the rulings of the court, instead of losing his temper, he should have submitted to the rulings, and after the trial reviewed them upon motion for a new trial or in the supreme court. He should have steadily kept before him that it was the duty of the court to decide every question raised by the learned counsel on either side, according to the court's best judgment of the law, and not lose his temper when such judgment was given.

In People ex rel. Chanler v. Newburger (1904) 98 App. Div. 92, 90 N. Y. Supp. 740, where an attorney persisted in his attempts to compel the court to reverse its ruling, and abruptly deserted the case in the midst of the trial because he could not coerce the court into compliance with his request, it was held proper for the court to assess a fine for contempt, though the conduct of the attorney was prompted by excessive zeal, under a misunderstanding, for the time being, of what his duties required, and though there was no intent to reflect upon the integrity of

the court. The court said: "The attitude taken by counsel was such as must necessarily have impressed the jurors and others attending the court with the idea that the judge had deprived a prisoner on trial of a substantial right, and hence acted in an arbitrary manner. If the court were wrong in its ruling (and we are not called upon now to determine whether it was or not), an adequate remedy was afforded by the law."

But in Ex parte Coffee (1913) 72 Tex. Crim. Rep. 209, 161 S. W. 975, where the court granted one not a licensed attorney the privilege of appearing for his minor son in a criminal prosecution, it was held not to be contempt of court for the county attorney to state to the court that if such privilege were given he would sever his connection with the case, nor for him so to sever his connection, where the court did not order him to proceed with the case, but adjourned, and subsequently appointed another attorney, who conducted the prosecution. The court said: "The simple fact that a lawyer states he severs his connection with a case in the presence of the court would not, in our judgment, in and of itself, form a basis of contempt punishment. There must be something more. If the court had ordered him to proceed, and he had disobeyed the order, we would have a different proposition. There may be reasons why an attorney may under some circumstances sever his connection with a case, and in which he would not only be justified, but the ethics of his profession, as well as the law, may demand or authorize such action. We are of the opinion, therefore, that the mere act of stating he severed his connection with the case would not be sufficient to justify the court in placing the attorney in contempt. We are of opinion the county attorney was not in contempt of court in stating that he severed his connection with the case under the circumstances."

L. S. E.

Trial

(—— N. J. —, 123 Atl. 760.)

JAMES J. KLORAN, Respt.,

V.

LOUIS DROGIN, Appt.

New Jersey Court of Errors and Appeals — March 3, 1924.

jury

(— N. J. —, 123 Atl. 760.)

injury to passenger on jitney bus explosion of tire. The jury must determine the question of liability of the proprietor of a motor bus by explosion of a tire, where noises emanating apparently from the wheel had attracted the attention of the driver several times, so that he stopped to examine the cause.

[See note on this question beginning on page 1202.]

APPEAL by defendant from a judgment of a trial court in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion of the court.

Mr. George L. Record for appellant. Messrs. Lazarus & Brenner for respondent.

Minturn, J., delivered the opinion of the court:

The plaintiff boarded a jitney bus of the stage type, owned by the defendant and operated by his servant, and used upon the Hudson county boulevard as a common carrier of passengers. It was equipped with pneumatic tires which were placed upon wheels which revolved under the seats immediately under the floor of the vehicle. While in operation it was observed that the bus emitted a peculiar noise, emanating apparently from the location of the right rear wheel. Three times the driver left his seat to observe the conditions under which the noise was produced, but returned to his place, apparently unable to locate the trouble. Thereafter, while the bus was proceeding upon its course under those conditions, the tire in question with a loud explosion blew out, raising a portion of the flooring over which the plaintiff was sitting, to such a degree as to strike him and inflict injuries which present the basis for this suit. This situation was fully corroborated by witnesses at the circuit, the defendant offering no testimony in rebuttal thereof,

and the trial court, refusing a motion to nonsuit and a motion to direct a verdict, allowed the case to go to the jury, who found for the plaintiff.

The legal objection now urged to the judgment is that the trial court erred in refusing to nonsuit or to direct a verdict, for the reason that the accident was of that unavoidable character which no degree of care could have obviated. We are inclined to conclude that the learned trial court was not in error in this respect. It is unnecessary to place the case in that character of tortfeasance, which falls under the rule inherent in the maxim "res ipsa loquitur," although it might with some degree of reason be contended that it is within that category of torts which, at least, calls upon the defendant for an explanation with the view of eliminating him from the category of an active or passive tort-feasor. Hughes v. Atlantic City & S. R. Co. 85 N. J. L. 212, L.R.A.1916A, 927, 89 Atl. 769; Mackenzie v. Oakley, 94 N. J. L. 67, 108 Atl. 771; Mannon v. Vesper Lodge, 97 N. J. L. 215, 116 Atl. 784; Higgins v. Goerkekrich Co. 91 N. J. L. 464, 103 Atl. 37.

In the Mackenzie-Oakley Case the plaintiff, an invitee, was injured by

the skidding of an automobile due to the condition of the road after an unexpected shower of rain, and the case was held to be one for the jury, for the purpose of enabling the defendant to exculpate himself from the presumption of negligence which arose from the unexplained and abnormal happening of the accident. In the last case mentioned, the plaintiff, an invitee in a department store, was examining an ice box, when the lid, which was supposed to be securely upheld, suddenly fell, injuring her hand; and the same rule requiring an explanation upon the part of the defendant for the purposes of exculpation was there applied.

The tort-feasance in the case at bar consisted in negligence in operation, with notice of a dangerous defect which might cause damage to those intrusted to defendant's care. The defendant being a common carrier of persons, the high degree of care required of him in the circumstances has become a proverbial rule of law; and whether he exercised that care in his conduct of the car, after having received notice on at least three distinct occasions of an existing defect or an abnormal situation in one of the necessary or

Trial-juryinjury to pas

senger on jitney bus-explosion of tire.

gans of locomotion, apparently of sufficient moment to cause him to stop and look at the de

fective parts before proceeding further upon his route, became a jury question.

The case in this respect is not, in legal principle, unlike that of Beck v. Hines, 95 N. J. L. 158, 112 Atl. 332, where the captain of a ferryboat, presumably experienced in his business, and with a possible danger of an approaching vessel at high speed in sight, took the risk of bringing his boat sufficiently close to the on-coming danger to invite the

accident which occurred, and which occasioned the injury. This court there declared that the direction of a verdict for the defendant was erroneous, and that the question of defendant's negligence was for the jury. We there reiterated the rule that foresight for harm, in view of an existing abnormal or dangerous situation, standardized by the care likely to be exercised, in the circumstances, by the ordinarily prudent man, furnished the controlling test, and we there observed that one is within the category "who, observing the probability of impending danger from adopting a certain course of action, does all that such a man could have reasonably done to avoid inmeshing himself and those intrusted to his care in the dangerous environment that confronted him, and thus creating the proximate cause or the causa sine qua non which superinduced the accident."

Such is the rule applicable to the situation existing in the case sub judice; and the learned trial court, therefore, properly left the question to the jury for solution.

The judgment appealed from will be affirmed.

For affirmance: The Chancellor, the Chief Justice, Justices Trenchard, Minturn, Kalisch, Black, and Katzenbach, and Judges Heppenheimer, Gardner, Van Buskirk, and Clark.

For reversal: None.

NOTE.

The duty and liability of a carrier. of passengers for hire by automobile is the subject of the annotation in 4 A.L.R. 1499, which is supplemented by the annotation following ANDERSON V. YELLOW CAB Co. post, 1202. More specifically, as to the liability of proprietors of jitneys or motor busses, see subd. I. of those annotations.

(108 Ohio St. 484, 141 N. E. 267.)

C. H. KORNER et al., Doing Business under the Firm Name of C. H. Korner & Son, Plffs. in Err.,

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1. The same rule and measure of responsibility attach to the owner and operator of a public taxicab for the acts of agents and servants as apply to other common carriers.

[See note on this question beginning on page 1202.]

Master and servant liability for
acts after working hours.
2. A person employed as a driver of
a public taxicab, whose duties under
his contract of employment usually
end at 6:30 P. M., and who on a single
occasion, without being specially re-
quested so to do, drives one of the
vehicles of his employer, at about the
hour of midnight, in transporting a
passenger, the usual and customary
fee for such service being collected by
the driver, and the same being prompt-
ly paid to the employer, is engaged in
the service of the master, and the same
measure of responsibility attaches to
the master for the acts of the servant
as though the service was performed
during the regular hours of service.
Headnotes by the COURT.

Carriers

taxicabs.

3. Persons owning and operating public taxicabs for the transportation. of passengers, holding themselves out as willing to carry persons generally for hire, are "common carriers."

[See 1 R. C. L. Supp. 1163; 4 R. C. L. Supp. 275. See also note in 4 A.L.R. 1501.]

assault by driver liability.

4. It is the duty of the driver of a public taxicab to treat passengers respectfully, and the owner of such taxicab and employer of such driver must respond in damages to a passenger for the unwarranted assault of such driver committed in the course of such transportation.

[See 4 R. C. L. 1169; 1 R. C. L. Supp. 1286; 4 R. C. L. Supp. 308.]

ERROR to the Court of Appeals for Crawford County to review a judgment affirming a judgment of the Court of Common Pleas in favor of plaintiff in an action brought to recover damages for an assault committed by defendants' servant, alleged to have been negligently and carelessly employed by them as driver. Affirmed.

The facts are stated in the opinion

Messrs. Gallinger & McCarron, for plaintiffs in error:

Defendants were not liable to respond in damages for the criminal act of their employee, the only negligence charged against them being that of employers.

Louisville & N. R. Co. v. Wolfe, 80 Ky. 84; Mechem, Agency, § 740; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 410, 4 L.R.A. (N.S.) 506, 45 N. E. 634; Morier v. St. Paul, M. & M. R. Co. 31 Minn. 351, 47 Am. Rep. 793, 17 N. W. 952; Slater v. Advance

of the court.

Thresher Co. 97 Minn. 305, 5 L.R.A. (N.S.) 598, 107 N. W. 133; Rahmel v. Lehndorff, 142 Cal. 681, 65 L.R.A. 88, 100 Am. St. Rep. 154, 76 Pac. 659, 16 Am. Neg. Rep. 7; Hardeman v. Williams, 150 Ala. 415, 10 L.R.A. (N.S.) 653, 43 So. 726; 26 Cyc. 1526; Crelly v. Missouri & K. Teleph. Co. 84 Kan. 19, 33 L.R.A. (N.S.) 328, 113 Pac. 386, 3 N. C. C. A. 854; Collette v. Rebori, 107 Mo. App. 711, 82 S. W. 552; Hudson v. Missouri, K. & T. R. Co. 16 Kan. 470; Mirick v. Suchy, 74 Kan. 717, 87 Pac. 1141, 11 Ann. Cas. 366; Johnson

v. Alabama Fuel & I. Co. 166 Ala. 534, 52 So. 312.

Messrs. Chester A. Meck and Benjamin Meck for defendant in error.

Marshall, Ch. J., delivered the opinion of the court:

The plaintiff in this action, a passenger in a public taxicab, sued to recover damages from Korner & Son, as owners and operators of a line of public taxicabs then being operated for hire in the city of Bucyrus, Ohio. It was alleged in the petition and admitted in the answer that the defendants did, at the time complained of, own and operate a line of taxicabs for hire. It was claimed that plaintiff, at about the hour of 12 o'clock at night, went to the place of business of defendants in Bucyrus, and applied for a taxicab to take her to her home in a remote part of the city, and found Edward Driscoll, an employee of defendants, who started to take her to her home in a taxi, but who, instead of going directly to her home, drove the machine into the country, where he assaulted and ravished her.

At the trial the defendants endeavored to prove that Driscoll was not on duty at the time; that by the terms of his employment his duties ceased at 6:30 in the evening. It was admitted, however, that Driscoll used a machine belonging to the defendants, and on his return to the garage paid into the hands of one of the defendants the usual fee for such taxi service.

The testimony of plaintiff, strongly supported by the testimony of her mother and other attendant circumstances, if believed, made a clear case of rape. Driscoll testified at the trial, and while admitting having driven the girl into the country before taking her home, and admitting the act of sexual intercourse, denied that it was against her will.

The court clearly instructed the jury that there could be no recovery unless it was found that there was unlawful carnal knowledge by force and against plaintiff's will.

The

jury were further definitely instructed that, if the act of intercourse was with plaintiff's consent, the verdict should be in favor of the defendants.

In addition to the allegations of the petition that plaintiff was a passenger in a public taxicab driven by an employee of the firm owning and operating the taxicab, the petition contained the further allegation that the driver was a person of low morals and a depraved character, which fact his employers knew, or by the exercise of ordinary care should have known.

Much of the charge of the court is taken up with that feature of the case, which need not receive serious attention at our hands, because the conclusions we have reached in this controversy make it unnecessary to prove that the owner and operator of a public taxicab had notice or knowledge of the depraved character of the driver. The jury returned a verdict in favor of the plaintiff, and this verdict must have been based upon a finding that rape, as defined by the court, had actually been committed.

While it was not seriously questioned that the defendants were common carriers of passengers, inasmuch as there has never been an authoritative declaration by this court upon this point, it will be proper to briefly state that all the authorities, without exception, have declared that public taxicabs, operated for hire, and which are offered promiscuously to the public for the Carriers-taxiservice of transportation of passengers, are common carriers. This is true, without any regard to the limits of the service. Huddy, Auto. 5th ed. p. 45; Berry, Auto. 3d ed. § 1502.

cabs.

It was admitted in the answer that they "were the owners and operators of a certain line of taxicabs for hire in the city of Bucyrus, Ohio," and in their testimony that they held themselves out as willing to haul people in taxicabs for hire. The court further instructed the

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