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ANNOTATION.

Constitutionality of statute which makes the application of regulations affecting

place or conditions of work dependent upon demand of employees.

But little has been found within the mine, was held not to satisfy the lanscope of this annotation.

guage of the statute imposing the duty In Booth v. State (1913) 179 Ind. as to wash rooms upon the owner, op405, L.R.A.1915B, 420, 100 N. E. 563, erator, lessee, superintendent, or other Ann. Cas. 1915D, 987, it was held that person in charge of every coal mine.) a provision in a statute for the main- The Booth Case was approved and tenance of washhouses by coal miners, followed in Princeton Coal Co. v. Fetonly upon petition of their employees, tinger (1916) 185 Ind. 676, 113 N. E. is not an unconstitutional delegation 236, 114 N. E. 406, a case upon the of legislative power. The court said: same statute. “Appellant insists that the act is in- On the other hand, it will be seen valid for the reason that it is for the that in the reported case (Com. v. benefit of individuals employed in the BEAVER DAM COAL Co. ante, 920) it is particular mine, and that its operation held that making a statute requiring is left entirely to the dictation of cer- employers to furnish wash rooms for tain persons. That a certain law may their employees depend upon a vote of be called into exercise by petition does a specified percentage of the emnot violate $ 25, article 1, of the Con- ployees violates a constitutional prostitution." The section referred to vision that no law shall be enacted to provided: "No law shall be passed, take effect upon the approval of any the taking effect of which shall be other authority than the general asmade to depend upon any authority, sembly. except as provided in this Constitu- As will appear from the annotation tion." This

was affirmed in in 15 A.L.R. 1430, on the duty of an (1915) 237 U. S. 391, 59 L. ed. 1011, 35 employer with respect to the timbering Sup. Ct. Rep. 617, the court stating as of a mine, under statutes relating to the matter of delegation of legis- specifically to the subject, it is stated, lative power: "With this objection

at page 1464, that under certain statwe are not concerned. The supreme

utes "the aty to which the employer court of the state decided that the law

is subject with regard to the delivery could be called into operation by peti

of timbers to the miner does come into tion, and in the decision no Federal

existence until the latter has notified question is involved."

the former that the timbers are need(The statute involved in Booth v. State was before the court in Hewitt

ed.” But the question of the constiv. State (1908) 171 Ind. 283, 86 N. E.

tutionality of such statutes so far as 63, where an affidavit alleging that the concerns the delegation of legislative defendant was superintendent, but not power does not seem to have been alleging that he was in charge of the discussed.

B. B. B.

case

CITY OF DALLAS, Piff. in Err.,

V.
B. G. MAXWELL et ux.

Texas Commission of Appeals (Section B) - March 7, 1923.

(- Tex. —, 248 S. W. 667.)

Highway - necessity of guard alongside.

1. A municipal corporation is not bound to maintain a guard between

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a highway and a ravine to protect automobiles from plunging into the ravine, where the roadway is level and well paved, and a space for a sidewalk exists between the roadway and the ravine.

[See note on this question beginning on page 937.] Municipal corporations - duty to [See 13 R. C. L. 421; 3 R. C. L. Supp. maintain highways safe.

52.] 2. A municipal corporation is lia

Highways – liability for extraordible ' for all damages proximately

nary occurrences. caused by its failure to exercise ordi

7. The duty to keep roads reasonanary care to construct and maintain

bly safe for ordinary travel excludes its highways so as to render them rea

liability for those consequences which sonably safe for ordinary travel.

arise from unusual or extraordinary [See 13 R. C. L. 310; 3 R. C. L. Supp.

occurrences. 40.] Negligence — necessity of anticipa- Negligence -- of driver of automobile

- imputation to guest. tion of consequences.

8. The negligence of the driver of 3. Anticipation of consequences is

an automobile is not a defense to an à necessary element in determining

action by a guest to hold the municinot only whether a particular act or

pality liable for an accident result. omission is actionable negligence, but

ing from a defective condition of the also whether the injury complained of

highway, where the guest is not in is proximately caused by such act or

such relation to the driver as to share omission.

in the responsibility for his negli[See 20 R. C. L. 30; 3 R. C. L. Supp.

gence. 1020; 22 R. C. L. 124.]

[See 2 R. C. L. 1207; 1 R. C. L. Supp. - liability for consequences which 743; 20 R. C. L. 158; 3 R. C. L. Supp. should have been anticipated. 1039.] 4. One is bound to anticipate those

Municipal corporations - liability for consequences of his acts which, in the

uncontrolled automobile plunging ordinary course of human experience, might reasonably be expected to re

over unguarded declivity. sult therefrom, and is legally re

9. A municipal corporation is not

liable for injury caused by an automosponsible therefor. [See 20 R. C. L. 30; 3 R. C. L. Supp.

bile plunging over an unguarded de1020; 22 R. C. L. 120 et seq.; 3 R. C.

clivity along the side of the public L. Supp. 1234.]

highway, where the machine was en

tirely out of control because of de- relation of act to person injured. fects in the steering gear or negli

5. In determining the question of gence of the driver, since such occurlegal responsibility for a particular rence is so unusual and extraordinary act or omission, the relation thereto as within the contemplation of law to of the injured party or of persons in be unforeseen. situations analogous to his is a con- [See 2 R. C. L. 1204; 1 R. C. L. Supp. trolling factor.

741.] Municipal corporations - unguarded Proximate cause injury to passendeclivity along highway — liability

ger in automobile breaking of for injury to occupant of automo- steering gear. bile.

10. The breaking of the steering 6. To hold a city liable for injury to gear of an automobile traveling on a the occupant of an automobile which well-paved and level roadway, which plunged over an unguarded declivity causes it to plunge into a ravine at at the edge of a highway, the evi- the side of the road, and not the abdence should warrant the conclusion sence of a barrier along the edge of that, in the ordinary use of streets by the ravine, is the proximate cause of motor vehicles, some injury might injury to the occupants of the car. reasonably be foreseen as the result [See 13 R. C. L. 454; see also note in of the unguarded bank.

14 A.L.R. 1339.]

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ERROR to the Court of Civil Appeals for the Seventh Supreme Judicial District to review a judgment affirming a judgment of the District Court - Ter. --, 248 S. W. 667.) for Dallas County (Whitehurst, J.) in favor of plaintiffs in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion of the court. Messrs. James J. Collins, Allen ligence, concurrently with that of Charlton, W. S. Bramlett, Carl B. the driver, was the proximate cause Callaway, and Charles L. Black for

of the accident; and (7) that Mrs. plaintiff in error.

Maxwell did not fully understand or Messrs. McCutcheon & Church and W. D. Cardwell for defendants in er

appreciate the dangers incident to

vehicular traffic on Carlisle street. ror.

Upon this verdict the trial court McClendon, P. J., filed the follow

rendered judgment for plaintiffs, ing opinion:

which was affirmed by the court of About 6:30 o'clock P. M. on De

civil appeals. - Tex. Civ. App. cember 19, 1916, a jitney car in

,

231 S. W. 429, 20 N. C. C. A. 749. which Mrs. Laura Maxwell and oth

The accident occurred at the iners were passengers, and which was

tersection of Carlisle and Vine traveling in a south or southwest

streets. The south line of the laterly direction on Carlisle street, in

ter forms a right angle with the east the city of Dallas, became unman

and west line of the former, while ageable by reason of some defect in

the east line of Vine street makes a the steering gear, turned to the

slight angle with Carlisle street, so right across the sidewalk, and

that in traveling south or southwest plunged into a deep ravine. One of

on the latter there is a slight curve the passengers was killed, and Mrs. Maxwell

to the right or west at the west line was

seriously injured. of Vine street. Vine street, alThis suit was brought by Mrs. Max

though platted, appears never to well and her husband against the

have been used as a street, north of city to recover compensatory dam

Carlisle, and is taken up entirely by ages for Mrs. Maxwell's injuries; it

a deep ravine. Formerly there was being alleged that the city was neg

a bridge across this ravine; but ligent in not providing a barrier to

some three or four years before the prevent automobiles and other ve

accident the city removed this hicles from falling into the ravine.

bridge, placed a cement culvert or The case was tried twice. On the

storm sewer at the bottom of the first appeal it was remanded for new

ravine, and filled in above it. Cartrial for error in the charge.

lisle street was 50 feet wide between Tex. Civ. App. —, 210 S. W. 725. The second trial was to a jury up

property lines and had a sidewalk

on either side about 5 feet wide, on special issues; the jury finding, leaving about 40 feet of roadway in in addition to the amount of dam

the center. This roadway was maages, in substance, the following:

adamized, surfaced with gravel, and (1) That the city's failure to have

was in good condition for travel by a "sufficient and adequate guard or

motor and other vehicles. On the barrier along the north or north

west side of Carlisle street there west line of Carlisle street at the place and time of the accident” was

were concrete curbings and cement negligence: (2) that such negligence

footpaths up to the north and south

lines of Vine street, leaving a break was the proximate cause of the in

of about 50 feet with no curbing or juries complained of; (3) that the

cement walk. A board walk some 2 jitney driver was negligent in operating the car; (4) that the steer

or 3 feet wide had been constructed ing gear of the car was defective,

to connect the cement walks. A few and the driver could not control or feet south of the end of the curbing guide it; (5) that such negligence at the north of Vine street was a was not the sole proximate cause of light or telephone pole, which stood the accident; (6) that the city's neg. slightly west of the line of the curb

27 A.L.R.-59.

.

ing extended south. The board walk fair presentation of it is given in the was west of the pole, and west of the following extracts from the driver's board walk the ground sloped off testimony: “I recall an accident at rapidly, terminating in a 9-foot per- Carlisle and Vine streets on Decempendicular retaining wall. The bot- ber 9, 1916, that was about 6:30 tom of the ravine was some 40 or o'clock in the evening. I was travel50 feet lower than the surface of the ing in a southwestern direction. I street. There was some conflict in was coming to town on Carlisle just the evidence as to whether the side- prior to this accident. The jitney at walk space across which the board the time—there was a little boy in walk extended was on a level with the front seat with me. . . That or slightly elevated above the gutter car, the steering wheel or steering or drain adjoining the roadway; gear was on the left side, and I was some of the witnesses testifying seated in the left side of the front there was no elevation, while others, seat, and the boy was seated on the including Mr. Maxwell, gave an right side by me, in the front seat. elevation of a few inches. This

That was

a five-passenger Ford. seems to be borne out by photo. Then, besides the boy and I, there graphs introduced by plaintiff, was in the car, I found out later, which also clearly indicate that the Mrs. Holford and Mrs. Maxwell. ground west of the board walk be

My automobile had a top on gan to slope at about where the it at that time and I had side curproperty line would be, leaving tains. The top was up and the curabout the usual 5 feet of sidewalk tains half up; the curtains were up space to the curb line. The traveled to the back seat where the ladies sat. part of the roadway began a foot or

As to how fast I was runmore from the curbing, thus leaving ning between Sneed street and Vine a space of 6 or more feet between street just before this accident, I the traveled part of the road and the can't tell just how fast I was runpoint of danger. No character of

No character of ning, but I know I wasn't running guard or barrier had been con- very fast; I don't think I could have structed to prevent those using the been possibly been making over 8 street from precipitation down the or 10 miles an hour—not over 8 incline and into the ravine. About miles or 10. From my experience 300 feet north of Vine street Car- of a motor bus or jitney I am famillisle intersects Sneed street. The iar with the speed of such vehicles. jitney driver was traveling south on In my opinion between Vine and the west side of Carlisle street. He Sneed streets before this accident was familiar with the road, and had occurred I do not think I was going traveled it many times daily on his over 8 miles, if that much. regular route for about a month. When I stopped and the ladies got Mrs. Maxwell and a lady companion in, one of the ladies, I don't know boarded the car as passengers which one, one said, 'Let's fasten up Sneed street. They occupied the these curtains; it is cold. Well, rear seat, Mrs. Maxwell being on the I didn't think it had been cold left. The driver was on the left side enough to put up the curtains, and of the front seat, and by his side was that is the reason I had them fixed another passenger.

When the car up so they would protect the pasneared the north line of Vine street, sengers in the back seat, just the it veered to the right, struck the front part coming up; so I reached telephone pole, went around it, back-I just reached back that way crossed the board walk, and plunged with my left hand; my right hand, down the embankment to the bottom when I reached back with my left of the ravine. There is no material hand, was on the steering wheel, and controversy as to the manner in I was sitting just like I am now which the accident happened. A and reached back that way. I was (- Tex. , 248 8. V. 667.) sitting just like I am now and of exercising ordinary care to so reached back that way. I was setting construct and mainwith my face straight ahead, looking tain its public high- corporations

Municipal straight ahead on the street. I don't ways as to render duty to maintain

highways safe. think I ever turned in the seat, but them reasonably I just reached back and gave the safe for ordinary travel. A breach curtains a jerk, and I saw it was of that duty imposes legal liabilnot fastened in some way, and the ity for all damages which are therelady said, 'I will fasten this,' and I by proximately caused. says, 'All right. Well, I seen that In this state it is now a settled my car had cut-cut to the right doctrine that anticipation of consesome. I don't know how it was, but quences is a necessary element in deit seemed like it wanted to go to the termining not only right all the time, and I tried to cut whether a particular necensity of

Negligenceit to the left and couldn't; and about act or omission is anticipation of

consequences. that time I seen the pole, and it hit actionably neglithe pole in some way, I don't know gent, but also whether the injury just how it hit the pole, and then it complained of is

proximately sorter seemed like it was going the caused by such act or omission. other way, it seemed like it sorter Seale v. Gulf, C. & S. F. R. Co. 65 turned a little, and all at once it just Tex. 274, 57 Am. Rep. 602; Texas turned, and I seen where that ditch & P. R. Co. v. Bigham, 90 Tex. 223, was, and I grabbed the emergency

38 S. W. 162; Gulf, C. & S. and tried to stop the car, but

F. R. Co. v. Bennett, 110 Tex. 270, couldn't, and we went off then. It 219 S. W. 197; San Antonio & A. P. seemed like it was all done in a sec

R. Co. v. Behne, Tex. —, 231 S. ond. I remember the car hitting the

W. 354. This doctrine is the result pole, and up to that time we were of an effort by the courts to avoid pretty near off.

The pole as far as possible the metaphysical was located right near the curb, it and philosophical niceties in the seemed like; it was right at the edge age-old discussion of causation, and of the ditch like, or the gutter, the to lay down a rule of general applistreet gutter, just a little to the cation which will, as nearly as may right of that.

I stated a while
a

be done by a general rule, apply a ago that my machine kept trying to practical test, the test of common turn to the right. I later found the experience, to human conduct when cause of that. I think my wheels determining legal rights and legal . had become toed and caused the axle liability. Actual anticipation is of to tip forward, and the radius course not in any sense the test; but knuckle, the left knuckle on the ra- what one should under the circumdius rod, I think, broke.. . At stances reasonably anticipate as the time I struck this pole I was try- consequences of his conduct. And ing to cut my car to the left, at that “when it is found that a man ought time. I was trying to cut the car to to have foreseen in a general way the left with the steering wheel. I consequences of a certain kind, it was trying to turn the steering will not avail him to say that he wheel, using both hands, in an effort could not foresee the precise course to cut the car to the left. That or the full extent of the consesteering gear wouldn't work; it quences, being of that kind, which in wouldn't cut to the left; my steering fact have happened.” Sir Frederick gear was loose.

After the car Pollock in "Liability for Consestruck this pole and went over the quences,” 38 Law Quarterly Rev. sidewalk it went right off into that 165 (1922). ditch."

Human beings in their common The general rule is that a mu- dealings with each other in society nicipality is charged with the duty should be required to exercise some

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