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Words and

cab."

inson, Carriers, 3d ed. $ 100, is he is held to the exercise of the quoted with approval: "The safe

“The safe highest degree of care.” ty and lives of those who avail The term "taxicab" describes a themselves of this means of car- conveyance similar to a hackney riage must of necessity be intrusted carriage, but proin a great measure to the care of pelled by electric phrases"taxl. those who control and operate the or steam

power, cars. The law, therefore, justly and held for public hire at desigholds that, while the owners of pas- nated places subject to municipal senger elevators are not insurers of control. Every element involved in the safety of their passengers, they the carriage of a passenger in a are bound to exercise in their be- passenger elevator is included in half the highest degree of skill and the service performed by a taxicab. foresight, or, as some courts have The operator of the taxicab is in no expressed it, the utmost human manner under the control of the care and foresight consistent with passenger, excepting only with rethe efficient use and operation of spect to the transportation to the the

means of conveyance em- place of destination. The operation ployed."

of the cab is completely within the The language thus quoted from power and control of the operator. Hutchinson is apt, and applicable Like in a passenger elevator, the to the instant case. The rule re- passenger is inclosed in a cab, and quiring the high degree of care re- when he engages the services, he ferred to is based upon a consid- places himself completely in the eration of public policy designed to power, of the operator. The cab itprotect the lives and limbs of pas- self is subject to the call of any sengers upon such conveyances. member of the public. In fact, the

Whether in a strictly technical defendant maintained for such sense the defendant can be regard- service twenty-eight of these cabs. ed as a common carrier of passen- The particular cab in question was gers or not, the defendant was stationed at a railroad depot, prebound to use reasonable care ac- sumably for the conveyance of travcording to the nature of the con- elers, and was despatched to the tract, and that, in view of the na- place where the plaintiff required ture of the business and the peril to service, by an employee at the office life and limb of the passengers like- of the defendant. No specific barly to arise from an accident, this gain was made as to mileage or reasonable care should be defined as rates, but the ordinary rule in

the highest degree vogue for passenger service for the
of care consistent benefit of the public was employed.
with
the
proper

The cab was supplied with a taxtransaction of the business. Hinds imeter, which registered the milev. Steere, 209 Mass. 442, 35 L.R.A. age, and the fixed rates were ap(N.S.) 658, 95 N. E. 844, 1 N. C. plied to the actual mileage, and the C. A. 134.

sum charged was based both upon In Gardner v. Boston Elev. R.

the rates and the mileage. Those Co. 204 Mass. 213, 90 N. E. 534, it employing taxicabs desire greater is said: “A common carrier of pas

speed and convenience in transact

ing their business than are fursengers either by rail or by water

nished by the ordinary street car or has so complete a control, and the

jitney bus. consequences of negligence on his

In connection with what has been part may be so serious, that he is

said, we cannot ignore our common justly held to a very high degree of knowledge with respect to the excare for their safety; and according- tent of the development of the taxily it has been often said, both in cab business engaged in the transthis and in other jurisdictions, that portation of members of the public

Carrier care due frem operator of taxicab.

a

(179 Wis. 300, 191 N. W. 748.) in the larger cities. Such develop- rates and on mileage registered by ment has kept pace with the use of a taximeter. The facts in the inthe automobile generally; and while stant case would indicate quite the evidence in this particular case clearly that the cab was for the is not as complete and as satisfac- general use of members of the pubtory as it undoubtedly could have lic; that all members were treated been made, nevertheless there is alike, and were subjected to fixed every indication persuasive of the charges. fact that the defendant's business In order to constitute a public was operated pursuant to the usual

conveyance a common carrier, it is and ordinary custom prevailing not necessary that it come within with respect to the taxicab business the definition of a public utility so in general.

as to be subjected Defendant's counsel places great the rules and

Carrier-publio

-necessity of reliance upon the decision in the regulations of being public

utility. case of Terminal Taxicab Co. v. public utility comKutz, 241 U. S. 252, 60 L. ed. 984, mission. Newcomb v. Yellow Cab P.U.R.1916D, 972, 36 Sup. Ct. Rep. Co. (Ill.) P.U.R.1916B, p. 985. To 583, Ann. Cas. 1916D, 765. In that constitute the conveyance of a comcase the court held that that por- mon carrier it is not necessary that tion of the defendant's business, be- it should move between fixed tering t of its entire business, and mini or even upon fixed routes. which consisted mainly in furnish- Parmelee v. Lowitz, 74 Ill. 116, 24 ing automobiles from its central Am. Rep. 276; Pennewill v. Cullen, garage on orders, generally by tele- 5 Harr. 238. It has also been held phone, was not to be regarded as that fixed charges are not an essena public utility. In the Terminal tial attribute of a common carrier Taxicab Case it was said that "the of goods. Jackson Architectural bargains are individual, and, how- Iron Works v. Hurlbut, 158 N. Y. ever much they may tend towards 34, 70 Am. St. Rep. 432, 52 N. E. uniformity in price, probably have 665. not quite the mechanical fixity of Under the trend of modern judicharges that attends the use of cial decisions it appears that the taxicabs from the station and ho- great weight of authority is in fatels.”

vor of holding a taxicab like that in In the Federal case referred to, the instant case as a distinction was drawn between a public carrier. -commonthose cabs which travel between Anderson V. Fidelfixed points, like hotels and railroad ity & C. Co. 228 N. Y. 475, 9 A.L.R. stations, and taxicabs hired pursu- 1549, 127 N. E. 584; Cushing v. ant to an individual bargain at a White, 101 Wash. 172, L.R.A. fixed price. In rendering its deci- 1918F, 463, 172 Pac. 229; Carlton sion, however, the court freely ad- v. Boudar, 118 Pa. 521, 4 A.L.R. mitted its doubt as to the correct- 1480, 88 S. E. 174; Georgia L. Ins. ness of the position taken by it. Co. v. Easter, 189 Ala. 472, L.R.A.

A careful comparison of the facts 1915C, 456, 66 So. 514; Fidelity & in the Federal case and the instant C. Co. v. Joiner, — Tex. Civ. App. case will show that, while the serv- 178 S. W. 806; Lemon v. Chansice furnished by the defendant in lor, 68 Mo. 341, 30 Am. Rep. 799; the instant case was pursuant to a Lewark v. Parkinson, 73 Kan. 553, telephone call to the general office, 5 L.R.A.(N.S.) 1069, 85 Pac. 601, the cab furnished was not stationed 20 Am. Neg. Rep. 81; Jackson at the office, but at the depot, and Architectural Iron Works v. Hurlthat no individual bargain was but and Parmelee v. Lowitz, supra; made for the service, but that the Donnelly V. Philadelphia & R. R. transportation proceeded upon a Co. 53 Pa. Super. Ct. 78, 82; Van regular schedule, based upon fixed Hoeffen v. Columbia Taxicab Co.

31 A.L.R.–76.

taxicab as.

179 Mo. App. 591, 599, 600, 162 S. the instruction of the court comW. 694; Primrose v. Casualty Co. plained of was proper. of America, 232 Pa. 210, 37 L.R.A.

We have carefully examined the (N.S.) 618, 622, 623, 81 Atl. 212; evidence, and find that there is Huddy, Auto. 6th ed. p. 152, § 131; ample credible testimony to sup2 Moore, Carr. 944.

port the answers of the jury to the From what has been said, we

questions of the special verdict. hold that public policy requires that sonable, but extremely moderate.

The damages found are not unreathe taxicab in the instant case be The judgment of the lower court classed a common carrier, and that must therefore be affirmed.

ANNOTATION.

Duty and liability of carrier of passengers for hire by automobile.

on

I. Jitneys; busses, 1202.
II. Taxicabs:

a. Generally, 1206.
b. Effect of passenger giving direc-

tions as to route, 1207.
c. Employees restraining and caus-

ing arrest as ground of action,

1208.
[No later decisions herein.)
d. Failure to complete trip

breach of contract, 1208.

[No later decisions herein.)
e. [New] Duty of passenger; con-

tributory negligence, 1208.

III. Rented automobiles :

a. Injuries to hirer:

1. Generally, 1209.
2. Accidents wet street,

1211.
[No later decisions herein.]
3. Accidents from car starting

during chauffeur's absence,

1211. (No later decisions herein.] b. Injuries to guests, 1211. c. (New) Duty of passenger; con

tributory negligence, 1211. IV. Miscellaneous, 1211.

as

This anotation is supplementary to ing jitney owners to provide the winannotation on the same subject in dows of the jitney busses with guards 4 A.L.R. 1499.

sufficient to prevent passengers from On the question of the liability for sticking parts of their bodies out of negligence of a chauffeur furnished the windows, it is not negligence on with a

car hired for an extended the part of the bus owners to fail to period, see annotation in 8 A.L.R. 484. provide such guards. Thibodeau v.

Hamley (1920) 95 N. J. L. 180, 112 Atl. 1. Jitneys; busses.

321, supra. (Supplementing annotation in

in 4

The negligence of the driver of a A.L.R. 1500.)

public bus is not imputable to its pasThe owner of a jitney bus is considered a common carrier of passengers,

sengers, who may recover either from

the bus company or the street car and as such owes a duty to the pas

company for injuries received in a colsengers to exercise the highest de

lision between the bus and a street gree of care for their safety that is

car.

Simmons v. Pacific Electric R. consistent with the conduct of its

Co. (Cal.) supra. business. Simmons v. Pacific Electric R. Co. (1922)

A jitney operator who, upon arrivCal. App. -, 212 Pac. 637; Carnahan v. Motor Transit Co.

ing at a street intersection, has by the (1924) Cal. App. —, 224 Pac. 143;

law of the road the right of way, is Karnitsky V. Mashanic Mashanic (1920) 94

justified in assuming that an automoN. J. L. 127, 109 Atl. 303; Thibodeau

bile approaching from the intersectv. Hamley (1920) 95 N. J. L. 180, 112 ing street will comply with the law and Atl. 321; McCaffery V. Automobile

yield the right of way, and in proceedLiability Co. (1922) 176 Wis. 230, 186 ing on his course, and where he takes N. W. 585.

an extra precaution in swerving his car In the absence of a statute requir- in the opposite direction from that in

which the other car is approaching, in exercise of that care and diligence enorder to avoid any possibility of col- joined upon one in charge of a vehicle lision, he is, as a matter of law, free of a common carrier. from negligence, although the ap- A bus driver, required to exercise proaching automobile thereafter, in the highest degree of care for the safeviolation of the law of the road, cuts ty of his passengers, who, for their across, causing a collision with the comfort, drives the bus on the more jitney which the driver could not dangerous part of the highway, in avert. McCaffery v. Automobile Lia- close proximity to the street car tracks bility Co. (Wis.) supra, affirming a knowing that street cars are likely judgment of dismissal in an action by to approach from the rear, must exera passenger in the jitney to recover cise the utmost care in order to hear for injuries received in the collision. warning signals, and turn away from The court stated that while the opera- the tracks as soon as the diligence tor of a jitney, under the law per- commensurate with the high degree taining to common carriers, is of care which he owes his passengers obligated to exercise the high degree will permit, and his failure to hear of care above referred to, he is not the signal of an approaching car charged with the necessity either of shows a lack of care on his part and possessing superhuman powers of renders him liable to a passenger who anticipating, or exercising such pow- is injured by a rear-end collision with ers in, a threatened emergency, but the street car, following the driver's that the degree of care must be such failure to turn off the tracks after the as is consistent with the practical signal is given by the car. Simmons operation of the jitney.

v. Pacific Electric R. Co. (Cal.) suWhere a bus, which was being pra. driven at night at a speed ranging KLORAN V. DROGIN (reported herefrom 25 to 40 miles per hour and was with) ante, 1191, holds that the jury equipped with headlights which threw must determine the liability of the rays only 100 feet ahead in violation owner of a jitney bus, who as a comof the Motor Vehicle Law requiring mon carrier must exercise the high deheadlights to throw rays 200 feet, gree of care required by the estabskidded into another machine on the lished rule in respect to common carside of the road which apparently the riers, for an injury to a passenger driver did not see, although both head- caused by the explosion of a tire, lights and taillights were burning, where noises emanating apparently when it encountered oil flowing from from the wheel had attracted the ata broken pipe line, and covering the tention of the driver several times, so highway, the color of which was simi- that he stopped to examine into the lar to that of the highway, and which cause, the driver did not see until the car And in Tansey v. Tedesco (1919) 93 began to skid and he could not there- N. J. L. 259, 107 Atl. 419, in an action after prevent it from slipping either to recover damages for injuries alby use of the brakes or clutch, leged to have been caused in attemptthe court in Carnahan V. Motor ing to board a jitney bus, the court Transit Co. (Cal.) supra, in affirm- held that the evidence that the plaining a judgment for the plaintiff,

plaintiff tiff attempted to board the jitney a passenger in the bus, for injuries while it was moving slowly, and in so received in the collision, stated that, doing slipped on the icy steps, and conceding it was beyond the power of that the driver of the jitney refused the driver to control the bus after it to stop after he had knowledge of the began to skid, if the bus had been plaintiff's predicament, was sufficient equipped with proper lights, the driver to sustain a judgment for the plainwould have discovered the oil in the tiff. highway in sufficient time to have In Farrell v. Boggs & Buhl (1919) brought his car into control before 263 Pa. 221, 106 Atl. 198, it was held reaching it, provided he was in the that the question of the negligence of a chauffeur employed by the defend- cumstances of the case; also, it is for ant to drive a motor bus which it the jury to say whether such neglioperated in connection with a depart- gence contributed to the particular ment store was properly submitted to injury. the jury, where the evidence showed An instruction that it was not neglithat the chauffeur saw the car with gence per se for a pasenger to ride on which he collided, backing out of an the step of a jitney bus, if the bus was alley 45 feet distant, and could have crowded, is not objectionable for the stopped before reaching that point, reason that it carries the implication but failed to do so, and failed to that in case the bus was not crowded slacken his speed or give any signal. it was negligence per se to ride on the

In Ivancich v. Davies (1921) 186 step, although the passenger did so Cal. 520, 199 Pac. 784, the owner of a with the express or implied consent of jitney bus was held liable to one who, the owner, for the fact that he occuwithout the actual knowledge of the pied a place of danger with the condriver of the bus, had jumped on the sent of the carrier has no relevancy running board with the intention of to the question of whether he was becoming a passenger, and had been negligent or not, unless he was compelled to stand there on account of compelled either to take that place or the crowded condition of the bus, he else not become a passenger. Karnitbeing injured when the bus was driven sky v. Mashanic (1920) 94 N. J. L. 127, so close to a truck standing by the 109 Atl. 303. It was stated, however, curb as to cause his knee to strike the that the consent or invitation might fender of the truck. The court held impose a greater obligation on the that in veiw of the evidence as to carrier to look after the safety of the the crowded condition of the bus the passenger, although it would not mere fact that the plaintiff was riding change the character of the passenon the running board did not, as a ger's act from a negligent to a nonmatter of law, constitute negligence negligent one. barring recovery. Nor could recovery The court is, however, not required be barred on the ground that he was to use any particular form of words in contributorily negligent in allowing charging the jury on the question of parts of his body to protrude beyond the care which the operator of a bus the sides of the car, inasmuch as the owes to its passengers, and a charge evidence indicated that the injury was that it is for the jury to say whether caused, not because of the protruding the driver "operated his automobile as of the plaintiff's leg, but because of a reasonably careful and prudent perthe difference in the height of the son would operate it,whether or not, fenders of the two machines, which in view of the high degree of care allowed the fender of the bus to go which is owing by a carrier of passenunder that of the truck, and that the gers to the passengers, he did what plaintiff was riding close up to the an ordinarily prudent and careful man body of the bus and not leaning out.

would have done,"—is a sufficient And in Thibodeau v. Hamley (1920)

statement of the law in that respect. 95 N. J. L. 180, 112 Atl. 321, where the

Ibid. plaintiff, a passenger on a jitney bus,

And in Sinclair v. Wiles & Foy was injured when it came in contact

(1921) 116 Wash. 409, 199 Pac. 725, in with another bus, crushing his arm,

an action to recover for injuries sufwhich was out of the window, the

fered in a collision between a jitney

bus and a mail truck, it was held that court, in affirming a judgment for the

the trial court properly denied a moplaintiff, held that the mere fact that

tion for a nonsuit and a motion for a passenger in a jitney bus puts his

judgment notwithstanding the verarm out of the window is not negli- dict, where the evidence showed that gence per se, but the question of his the mail truck had the right of way negligence is a fact to be determined over ordinary traffic, that its driver by the jury, considering all the cir- gave the proper signal, and that there

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