Turning Out of Wet Car Tracks.-A boy about 5 years of age was standing on a sidewalk when an automobile operated by defendant suddenly left the roadway and, running with great force upon the sidewalk, struck and forced him against a building, causing injuries from which he died. There was evidence that the machine was being driven in a street railway track; that water was running in the track, and the surface of the street in the vicinity was wet and slippery; that, without slackening but with increased speed, defendant turned to get off the track; that the car skidded on the rails and passed upon the sidewalk. The type of car and the testimony of the expert called by the plaintiff warranted a finding that by reason of their diameter the tires adhered tenaciously to the groove of the track, and, if an attempt were made to turn out, the tendency of the car, even with a dry track, would be to twist around and run onto the sidewalk, while with a wet rail the tendency to move laterally, and of the rear wheels to cling to the track, would be greatly increased. The defendant testified that he had been running an automobile about eight months, and never before on the street where the accident occurred.

It was held that the case was for the

jury; that the jury properly were permitted to pass upon the question whether from his experience as shown by his testimony the defendant's conduct in the operation of the car in running in the groove of the track, and in applying increased power when trying to turn therefrom, was that of the ordinarily prudent driver acting under like conditions.*

Due to Oily Condition of Road.-One who was injured while a passenger in a public motor omnibus brought suit to recover therefor alleging, first, negligence in the operation of the vehicle whereby it was driven against a electric light standard, and, second, negligence in placing on the high

(4) Williams v. Holbrook, 216 Mass. 239 (1913).

way a dangerous vehicle which was liable to become, and did in fact become, uncontrollable owing to the slippery condition of the road, and which, on that account, constituted a nuisance. The trial court permitted the case to go to the jury only on the second ground. The injury occurred when the omnibus skidded against the standard. There was a verdict for the plaintiff, which the trial judge set aside and entered judgment for defendant. In the course of his opinion the judge stated that it was not suggested at the trial that the defendant company used an imperfectly constructed or wrongly designed vehicle, or that the company had omitted to use any known contrivance or take any proper precaution to prevent skidding. The accident occurred while the omnibus was traveling about five miles an hour, and was due to the oily condition of the road. As there was no question of any defect in this particular vehicle, and as the question considered by the jury was whether, in view of the fact that motor omnibuses and other motor propelled vehicles have a tendency to skid on slippery roads, it was negligence on the part of defendant, which had knowledge of this tendency to skid, to place in service a vehicle likely to become uncontrollable in slippery conditions of the road, it was found that there was no evidence of negligence having regard to the fact that motor omnibuses had been run in the streets for years.5

Due to Excessive Speed.-While standing on the sidewalk at a street corner, plaintiff was knocked down and run over by defendant's automobile. The defendant had ten years' experience in driving his own. car. The car in question was new, of 48 or 50 horsepower, in perfect condition, and equipped with the latest anti-skid and safety appliances. Defendant Defendant was going west on a wide street, in which were two car tracks, during daylight, with his car straddling the north rail, and when about. 100 feet from the cross street he sought to

(5) Wing v. London General Omnibus Co., 101 L. T. 411 (1909), K. B. 652 (1909), rev'g 100 L. T. 301.

pavement unless propelled by exceptional force."

track the front wheel crossed the rail in safety, but the rear wheel caught and the whole body of the car skidded at right angles to the track, mounted the curb, and, as described by defendant, "both side wheels were up and the car was standing in its proper direction. It really made what looked like a flying jump." While in this position, the car moved forward about seven feet, knocked the plaintiff down, ran over her, her, and was stopped by running against a heavy iron plug. Defendant stated that he was going "very slow," at 8 or 10 miles an hour, and that he had the car under perfect control when he turned from the track. The driver of a wagon testified that the defendant "came along the car track, and shot in ahead of me-he was going at a pretty good rate."

There was judgment for plaintiff, which was affirmed on appeal, the court holding that, "Every reasonable deduction to be drawn from the defendant's own testimony leads to but one conclusion, that the accident was entirely due to the speed of the car when it left the car rail to occupy the wet asphalt." Continuing the court said: "His experience and the conditions he faced required him to exercise special care at that time. He did not slacken his speed, and his idea of what was perfectly safe, and very slow, was demonstrated to be an unsafe standard of his duty. The rate of 8 to 10 miles an hour is generally a prudent one, but conditions may, and frequently do arise where it is an imperative duty to come to a full stop. The jury were fully warranted in concluding that when the defendant left the car track, with his heavy car going at the admitted speed, to occupy a wet asphalt roadway, he was negligent to a degree bordering on recklesness. An inanimate body of the weight of a heavy automobile, will not take a 'flying jump' over a curb onto a

The plaintiff's intestate was walking

a public street, in the exercise of due care, when an automobile driven by one of the defendants 'ran upon the sidewalk behind him and struck him with such force that he died almost immediately. There was evidence that the street was wide, straight, level and dry; that no other vehicles were in the highway, and it was a clear morning; that the automobile was being driven 18 to 25 miles an hour; that after going upon the sidewalk the car ran 30 or 40 feet, with deceased; that there was some trouble with no diminution of speed, before it struck the the engine that caused it to "skip" when running at low speed, but that this did not interfere with the operation of the brake or of the steering gear. There was evidence from which the jury could find that if the automobile had been under proper control it could have been stopped after its tires exploded-which occurred when it struck the curb-and before it reached deceased: and that it was due in whole or in part to excessive speed that the automobile skidded against the curb and caused the tires to burst and the car to leave the roadway. A verdict for the plaintiff was sustained.

Collision of Autos Causing Injury to Third Person.-Defendant M was driving his automobile in a westerly direction on the north side of a city street, and defendant K was following a short distance behind, and on the south side of the street. There was evidence in behalf of plaintiff that M was driving about 5 or 6 miles an hour; that K's car was a large, heavy one; that just before reaching an intersecting street K quickened his speed, and when he reached the intersection he was running very fast; that when M reached the intersection he first bore a little to the north and

(6) Van Winckler v. Morris, 46 Pa. Super. Ct. 142 (1911).

(7) Roach v. Hinchcliff, 214 Mass. 267, 101 N. E. 383 (1913).

then turned to the south, this to avoid the street railway track; that neither gave any warning of his approach to the crossing; that K knew that M was in front, but M did not know that K was following him; that when M turned towards the south there was a collision of the automobiles, which caused M's machine to be thrown about 30 feet, and K's machine to skid to the sidewalk, striking and killing the plaintiff's intestate, who was standing on the sidewalk. K testified that as he neared the crossing he slowed up; that M turned as if to go north on the intersecting street, and that he (K) turned to the left or south to get by him; that when he had run almost even with M's machine, the latter suddenly turned and struck the front wheels of his machine with such force as to knock the steering wheel out of his hands, which caused him to lose control of the machine. There was judgment against both defendants, and M appealed.

It was held that if there was any defect in plaintiff's proof, the testimony of K was sufficient to make out the case against M.8 Racing Car Skidding from Course. The plaintiff, a boy between 15 and 16 years of age, was viewing an automobile race which took place on certain public highways. He took up a position where there was a sharp turn in the road followed by the automobiles, and at the mouth of a road which branched off at this point. While so situated the defendant's car was driven along this part of the course, and in making the turn it skidded a considerable distance, striking and injuring the plaintiff. The evidence justified a finding of negligence on the part of defendant's driver, but it was held that the plaintiff was precluded from recovery by his contributory negligence.

It appeared that plaintiff was somewhat familiar with the use of automobiles, and knew their tendency to skid when rounding a curve at a high rate of speed; that he

(8) Matlack v, Sea, 144 Ky. 749, 139 S. W. 930 (1911).

had observed during the progress of the race that every car as it passed around this curve had skidded more or less, and he estimated that he had seen this happen during this race about a hundred times; that the place of view he selected was one of the most dangerous in case a car skidded or was deflected from its course while making the turn; that plaintiff knew of this danger from his own experience, and had been cautioned by his father not to stay at the mouth of the road in question, because the position was dangerous; that he was crossing the mouth of this branch road when he observed defendant's car approaching at a high rate of speed about 400 or 500 feet distant; that he proceeded across the road without paying any further attention to the car, which skidded in trying to round the curve and struck him when he was about half way across the road. The plaintiff's negligence was held to be affirmatively established."

Breaking Lamp Post on Sidewalk.-It has been held in England that where a lamp standard, erected about 14 inches from the curb by the plaintiff, was broken by defendant's omnibus, which skidded against it, the defendant could not raise the question of the plaintiff's right to erect or maintain the standard on the sidewalk, and that the fact that a vehicle which, in ordinary circumstances, confined itself to the roadway, knocked down a permanent structure on the sidewalk, was evidence upon which a jury might come to the conclusion that there was negligence on the part of the driver.10

A lamp standard belonging to plaintiff and which stood on the pavement in front of a music hall was broken by one of defendant's motor-buses skidding against it. On the day of the accident the roads were greasy, and the trial judge found that the driver was guilty of no personal negli

(9) Baldwin v. Locomobile Co., 143 App. Div. (N. Y.) 599 (1911).

(10) Walton & Co. v. Vanguard Motorbus Co. (K. B. Div.), 25 T. L. Rep. 13 (1908).

gence; that it was a well-known fact that in certain conditions motor-omnibuses were liable to skid, and that when they did so it was impossible to control them. The judge accordingly held that the defendant was liable for placing a nuisance on the highway and for negligently using the highway, and entered judgment for the plaintiff. On appeal to the King's Bench Division the judgment was allowed to stand.11

Evidence of Negligence. The mere skidding of an automobile is not an occurrence of such uncommon or unusual character, that, unexplained, it can be said to furnish evidence of negligence in the operation of the car.12

Where a passenger in a public motoromnibus was injured by the skidding of the vehicle against an electric light standard, and there was no claim or indication that the accident was due to any defect or insufficiency in the vehicle itself, the claim being that the omnibus company was negligent in sending out a vehicle likely to skid and become unmanageable on greasy roads, it was held that the happening of the accident did not raise a presumption of negligence on the part of the company. In part it was said, in the leading opinion in this case: "No doubt the mere fact of the accident be may prima facie evidence of negligence when the accident itself is evidence of a defect in the particular carriage; but I do not think that an accident resulting from the tendency of motor-omnibuses, however well constructed and designed, to skid is any evidence of negligence or of nuisance.”13

It has been held that, where an automobile was traveling at an ordinary rate of speed, the act of the chauffeur in applying the brakes to reduce the speed was not evidence of negligence; although the evidence showed that with the pavement in the condition that existed at the time in

(11) Gibbons v. Vanguard Motorbus Co., 25 T. L. Rep. 14 (1908).

(12) Williams v. Holbrook, 216 Mass. 239 (1913); Philpot v. Fifth Avenue Coach Co., 142 App. Div, (N. Y.) 811 (1911).

(13) Wing v. London General Omnibus Co., 101 L. T. 411 (1909), 2 K. B. 652 (1909).

question, skidding was likely to result from an application of the brakes. "If the chauffeur had not attempted to regulate the speed of the omnibus by the application of the brakes, there would be a question as to whether the speed was not evidence of negligence."14 C. P. BERRY.

St. Louis, Mo.

(14) Philpot v. Fifth Avenue Coach Co., 142 App. Div. (N. Y.) 811 (1911).

TELEGRAPHS AND TELEPHONESAGENCY.

MT. GILEAD COTTON OIL CO. v. WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina. May 31, 1916.

89 S. E. 21.

Where plaintiff sent a message offering to buy cotton seed at $20, but the telegraph company delivered to the addressee a message offering to buy at $22, plaintiff was not bound by such act and would not be compelled to accept the cotton seed at $22, since the company was no more his agent than that of the addressee.

The action was to recover damages caused by erroneous transmission of a telegram, making an offer for purchase of cotton seed. On the testimony, the court ruled that plaintiff's recovery was restricted to nominal damages or amount tendered therefor by defendant, to-wit, 41 cents. Judgment for this amount, and plaintiff excepted and appealed.

HOKE, J. The evidence tended to show that on October 1, 1914, plaintiff, doing busi ness at Mt. Gilead, N. C., delivered to defendant company for transmission to John Kearns, at Wagram, N. C., a message offering $20 per ton for cotton seed, and requiring immediate acceptance; that, under the arrangement between plaintiff and Kearns, the latter was to buy the seed at his own price and sell to plaintiff at the price offered; that the message was erroneously delivered, "twenty-two," instead of twenty, making an error of $2 per ton; that, acting on the erroneous message, Kearns bought or contracted for immediate delivery of four carloads of seed, part of which were in the cars at Wagram, when the plaintiff's agent and manager, having occasion next day to go to Wagram and ascertaining that the

mistake had occurred, countermanded the order as to further purchases, paid Kearns for the seed already bought or contracted for, at the price of $22, and brought suit against the company, claiming as damage the excess of $2 per ton, paid or contracted for by Kearns, by reason of the mistaken message; the damages so estimated amounting to $220.34.

(1) On these, the facts chiefly relevant, we are of opinion that his honor correctly held that plaintiff could only recover nominal damages or the amount for which judgment had been tendered by defendant of 41 cents. There is much contrariety of decision on the question whether a telegraph company may be properly considered the agent of a sender so as to bind him by a contract made in his name or for his benefit by reason of a message which has been erroneously transmitted. In this jurisdiction, it is held that the company, in such case and to that extent, is not the agent of the sender; that the latter is not bound by the terms of the erroneous message, and, unless otherwise in default, may not be held responsible for the effects of it. Pegram v. Telegraph Co., 100 N. C. 28, 6 S. E. 770, 6 Am. St. Rep. 557. The position has the support of authoritative and well-considered cases in other jurisdictions (Pepper v. Tel. Co., 87 Tenn., 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 669; Shingleur v. Tel. Co., 72 Miss. 1030, 18 So. 425, 30 L. R. A. 444, 48 Am. St. Rep. 604; Strong v. Tel. Co., 18 Idaho 389, 109 Pac. 910, 30 L. R. A. [N. S.] 409, Ann. Cas. 1912A, 55), is said to be in accord with the English and Canadian decisions on the subject, and in a recent work on electricity, after a full discussion of the subject, it is approved by the authors as the better rule (Joyce on Electricity [2d Ed.] § 907). It is said by some of the textwriters that the opposing position is supported by the weight of authority in the American courts; a statement that is examined and combatted successfully we think, by Judge Folkes, in his learned and forcible opinion in Pepper's Case, to which we have heretofore referred. The American cases which uphold the view that the company is to be properly considered the sender's agent for the purpose and to the extent indicated are made to rest chiefly on the proposition that, as the sender first resorted to this means of communication, he should be held to bear the loss arising from the company's negligent breach of duty; but this, to our minds, is very far from satisfactory. As a matter of fact, we know that neither the sender nor the addressee has any control over the operations of the company or its methods. Both are equally aware of its liability to mistakes and the extent of them, and

of

both have equal opportunity to verify the message by repetition, etc., and it seems to us that the doctrine which undertakes to hold the sender liable under the ordinary principles agency is unsound, and that the position as it prevails with us and which considers the company as a public service agency, acting, in the respect suggested, independently of either, has the better reason, and certainly, as now advised, we have no present disposition to question it. This, then, being in our opinion the correct principle, on the facts as presented in the record, his honor correctly held that plaintiff was restricted to nominal damages. It is not at all clear that any of the seed had been delivered when the mistake was discovered, but, if it were otherwise and four carloads of seed were then in the cars at Wagram ready for shipment, these seed, purchased at $22 per ton, were not the seed that plaintiff had ordered, and he had then the legal right to reject and return them to addressee of the message. The latter could have recovered of the company the damage incident to their culpable mistake, but plaintiff, having with full notice elected to take the seed at the higher price when not legally obligated to do so, has thereby entered into a new contract concerning them and is not now in a position to sue the company because of its breach of contract with him.

(2) It is the recognized position that, in case of breach of contract or of tort, the injured party must do what reasonable business prudence required to minimize his damage (Hocutt v. Tel. Co., 147 N. C. 187, 60 S. E. 980; Bowen v. King, 146 N. C. 391, 59 S. E. 1044; Tilinghast v. Cotton Mills, 143 N. C. 268, 55 S. E. 621; Railroad v. Hardware Co., 143 N. C. 54, 55 S. E. 422; and a fortiori where, in such case, the injured party, the plaintiff in this instance, has voluntarily paid the higher price for the seed when he was not compelled to do so, he has no legal right to insist on such payment as an element of damage. It may be that if, before the mistake was discovered, plaintiff had received and disposed of the seed, and conditions were such that he had no means of recoupment for his loss, a case might be presented for recovery of such damages, as naturally arising from the company's breach of contract; but no such case is presented in this record, the facts showing that the seed or a portion of them were then in the cars at Wagram and the remainder subsequently delivered and voluntarily taken over, as stated, by plaintiff at the higher price.

(3) It was insisted for plaintiff that he was in any event entitled to recover for certain