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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.

The damages found are not unreahold that public policy requires that sonable, but extremely moderate. the 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.

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 on 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 annotation on the same subject in 4 A.L.R. 1499.

On the question of the liability for negligence of a chauffeur furnished with a car hired for an extended period, see annotation in 8 A.L.R. 484.

1. Jitneys; busses. (Supplementing annotation in 4 A.L.R. 1500.)

The owner of a jitney bus is considered a common carrier of passengers, and as such owes a duty to the passengers to exercise the highest degree of care for their safety that is consistent with the conduct of its business. Simmons v. Pacific Electric R. Co. (1922) — Cal. App. —, 212 Pac. 637; Carnahan v. Motor Transit Co. (1924) Cal. App. —, 224 Pac. 143; Karnitsky Mashanic (1920) 94 N. J. L. 127, 109 Atl. 303; Thibodeau v. Hamley (1920) 95 N. J. L. 180, 112 Atl. 321; McCaffery v. Automobile Liability Co. (1922) 176 Wis. 230, 186 N. W. 585.

In the absence of a statute requir

ing jitney owners to provide the windows of the jitney busses with guards sufficient to prevent passengers from sticking parts of their bodies out of the windows, it is not negligence on the part of the bus owners to fail to provide such guards. Thibodeau v. Hamley (1920) 95 N. J. L, 180, 112 Atl. 321, supra.

The negligence of the driver of a public bus is not imputable to its passengers, who may recover either from the bus company or the street car company for injuries received in a collision between the bus and a street car. Simmons v. Pacific Electric R. Co. (Cal.) supra.

A jitney operator who, upon arriving at a street intersection, has by the law of the road the right of way, is justified in assuming that an automobile approaching from the intersecting street will comply with the law and yield the right of way, and in proceeding on his course, and where he takes an extra precaution in swerving his car 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 de. headlights 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, 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

or

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 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 passen. on 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 suf

fered in a collision between a jitney which was out of the window, the

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

V.

was nothing to obstruct the view of McMillan Auto Interurban Co. the driver of the jitney, who, in view (1923)

Wash. 221 Pac. 314. of the density of the traffic at the And in Kemp v. Van Bezel (1921) point where the accident occurred, 53 Cal. App. 312, 199 Pac. 1099, the was approaching at an excessive rate court affirmed a judgment for damof speed, without giving any signal ages for injuries received by the which would warn the driver of the plaintiff in a collision between a motor mail truck, or call the attention of the bus owned by the defendant, and a jitney passengers to the situation so railroad engine, holding that evidence that they could prepare for the blow that the engine was equipped with a of the impending collision, where a headlight and the bell was ringing at turn to the left or a timely reduction the time the bus was approaching a of speed on the part of the jitney railroad crossing, the view of which would have avoided the collision en- was obstructed by a high building, at tirely. The court stated that, under the rate of 20 miles an hour, was these conditions, the driver of the sufficient to establish negligence on jitney was bound to exercise such a the part of the driver of the bus. degree of care as was necessary for And in Bentrovato v. Concourse Bus the protection of his passengers from Line (1923) 200 N. Y. Supp. 356, in an injury.

action on behalf of a four-year-old Evidence that an automobile bus, child to recover for injuries resulting approaching a road intersection at a from being thrown from a bus behigh rate of speed, struck an automo- longing to the defendant, in which the bile coming out of the intersecting evidence was that the plaintiff was road, which, by the law of the road placed on the steps of the bus by his having the right of way, should have father, after it had come to a stop at been allowed sufficient time to cross the regular stopping place, and the the road by the driver of the bus does conductor had immediately given the not present a case where as a matter signal to start, the court reversed the of law it can be said that there was or judgment for the defendant, holding was not negligence on the part of the that the testimony of defendant's condriver of the bus, but is sufficient to ductor that he saw no one at the sustain a finding of his negligence by stopping place until after he gave the the jury.

Baker v. Western Auto signal to start, when he noticed the Stage Co. (1920) 48 Cal. App. 283, plaintiff on the step, was manifestly 192 Pac. 73, affirming a judgment for unbelievable. the plaintiff, a passenger in the bus And it has been held, in an action at the time of the collision, who was against one engaged in the business of injured. The court does not, however, carrying passengers for hire between discuss the degree of care which a two towns, that an instruction to the jitney-bus operator must exercise in re- effect that evidence showing that spect to the safety of his passengers.

while the plaintiff was a passenger in In an action by a passenger in a

defendant's automobile it suddenly stage to recover for injuries suffered went backwards down a hill and overwhen the machine, after a tire blew turned, thereby causing an injury to out, left the road and struck a tree at him, raised the presumption that the a distance of 300 feet, without an accident occurred through the negliappreciable decrease of speed, testi- gence of the carrier and cast the burmony that care was used in the selec- den upon it to show the absence of tion and inspection of the tires, such negligence or that it did not and that the clutch was disconnected proximately cause the accident, and and the brakes set immediately fol- that, unless such a presumption was lowing the blow-out, which is rebutted overcome, the verdict should be for by adverse testimony, does not as a the plaintiff, cannot be complained of matter of law show that what the on the ground that it relieved the driver did measured up to the skill and plaintiff of the burden of showing care required of a public carrier. negligence on the part of the defendant, for such instruction merely re- must respond in damages to a pagquired the defendant to rebut a prima senger for an unwarranted assault by facie case made against it. Seeing the driver, committed in the course of Denver Co. v. Morgan (1919) 66 Colo. the transportation. KORNER V. Cos. 565, 185 Pac. 339, affirming the judg- GROVE (reported herewith) ante, 1193. ment for the plaintiff.

The court observes that this rule in But it has been held that a passenger regard to unwarranted assaults and in a jitney bus who had engaged the insults in behalf of the carrier's agent driver to carry him home thus causing is firmly established in respect to rail the driver to deviate from the route transportation, and there is no reason designated by his employer, is not en- why it should be different in its applititled to recover from the employer cation to transportation by motor vefor an injury caused by the driver's hicles. negligence, occurring after he had de- A taxicab company must furnish parted from his usual route in express competent drivers for its cabs, and it violation of orders, notwithstanding is the duty of the drivers to exercise there was some evidence to show that the highest degree of care with rethe driver had occasionally deviated spect to the safety of their passenfrom the route, it not appearing that gers. Dowd v. Atlas Taxicab & Auto this fact was known to the defendant. Service Co. (1921) 187 Cal. 523, 202 Youngquist v. L. J. Droese Co. (1918) Pac. 870; McKellar v. Yellow Cab Co. 167 Wis. 458, 167 N. W. 736.

(Minn.) supra.

And ANDERSON v. YELLOW CAB Co. II. Taricabs.

(reported herewith) ante, 1197, holds a. Generally.

that regardless of whether a taxicab (Supplementing annotation in 4 company,

owning

and operating A.L.R. 1501.)

twenty-eight cabs, is, in a strictly The statement in the earlier an- technical sense, a common carrier of notation that, in cases involving the passengers, it is bound to use rearight of a passenger to recover from a sonable care according to the nature taxicab company, a company of such of the contract, which, in view of the a character, which holds itself out to nature of the business and the peril serve all who apply for transportation,

to life and limb of the passengers in for a fixed or agreed fare, is a common case of an accident, should be defined carrier of passengers, is affirmed by as the highest degree of care consistthe later decisions. McKellar v. Yel- ent with the proper transaction of the low Cab Co. (1921) 148 Minn. 247,

business. 181 N. W. 348; Burke v. Shaw Trans- KORNER v. COSGROVE (reported herefer Co. (1922) 211 Mo. App. 353, 243

with) ante, 1193, holds that persons S. W. 449, writ of certiorari quashed owning and operating public taxicabs in (1923) Mo. 250 S. W. 384;

for the transportation of passengers, KORNER V. COSGROVE (reported here

holding themselves out as willing to with) ante, 1193; ANDERSON V. YEL- carry persons generally for hire, are LOW CAB Co. (reported herewith) common carriers and the same rule ante, 1197.

and measure of responsibility in reSuch a carrier is required to exer

spect to the carriage of passengers cise the highest degree of care for the

attach to such owner and operator for safety of its passengers, consistent the acts of its agents and servants, as with the proper conduct of its busi- attach to other common carriers. ness. McKellar V. Yellow Cab Co. In Burke v. Shaw Transfer Co. (Minn.) supra; ANDERSON V. YELLOW (1922) 211 Mo. App. 353, 243 S. W. CAB Co. (reported herewith) ante, 449, writ of certiorari quashed in 1197.

(1923) Mo. 250 S. W. 384, the It is the duty of the driver of a defendant, who operated a line of public taxicab to treat passengers re- automobiles and taxicabs for hire, and spectfully, and the owner of a taxi- who, at the request of an undercab and the employer of its driver taker, furnished cabs to convey per

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