against Deslauriers, and to prevent them from weighing the evidence with that discrimination and impartiality to which he was entitled. It may have caused the finding against him. We are of the opinion, therefore, that a new trial should be granted.

New trial granted, and case remitted to the common pleas division.

NEW TRIAL.-LANGUAGE OF COUNSEL calculated to humilfate and degrade the defendant in the eyes of the jury and bystanders cannot be permitted, and if it is not checked or is persisted in after warning from the court, it is ground for granting a new trial: Monographic note to McDonald v. People, 9 Am. St. Rep. 566. See, too, Haupt v. State, 108 Ga. 53, 75 Am. St. Rep. 19; Kearney v. State, 101 Ga. 803, 65 Am. St. Rep. 344.

MORGRIDGE v. PROVIDENCE TELEPHONE CO.
[20 Rhode Island, 386.]

MASTER AND SERVANT-FELLOW-SERVANTS HOW DETERMINED.-The character of the act, and not the rank of the person performing it, furnishes the test by which to determine whether in the performance thereof the person acting is the representative of the master or a fellow-servant.

MASTER AND SERVANT-FELLOW-SERVANTS-SUPERINTENDENT AND WORKMAN.—A superintendent of a telephone company in directing workmen to let go their hold on a telephone pole which they are raising is a fellow-servant with them, when the order might as well have been given by any other employé as by such superintendent. In giving such order the superintendent does not perform any act on behalf of the company which legally devolves upon it to perform.

D. R. Ballou and C. S. Tower, for the plaintiff.

D. S. Baker and W. B. Vincent, for the defendant.

886 TILLINGHAST, J. We think the demurrer should be sustained. The plaintiff, while assisting in the moving of a large telephone pole, was injured by reason of the falling thereof upon his body. The declaration shows that the superintendent in charge of the work had directed the plaintiff and several other fellow-servants of his to raise the top end of the pole, in order that a carriage on two wheels, called a "dinkey," could be placed under said pole for the purpose of moving it. to the hole where it was to be erected. After the pole had

been raised, said "dinkey" was wheeled under the same, by direction of the superintendent, but before it had reached the 387 place where it was intended it should receive said polethat is, before it came in contact with the pole so as to support the same the superintendent gave the order to "let go,” whereupon the plaintiff, supposing that the "dinkey" was so placed as to instantly receive the weight of said pole, he not being in a position where he could see the "dinkey," obeyed the order, and, by reason of the fact that the pole was some distance above the "dinkey" when said order was given, it fell, striking the plaintiff and seriously injuring him. In support of the declaration it is contended that the act of the superintendent, in ordering the plaintiff and his fellow-servants to let go their hold on the pole, was in law the act of the defendant corporation and, being a negligent act, gives the plaintiff a right of action. This contention is not tenable. In directing the plaintiff and his fellow-servants to let go their hold on the pole the superintendent was not performing, on behalf of the defendant corporation, any duty imposed by law upon it, that is, it was not an act which legally devolved upon the defendant to perform. The order to let go might as well have been given by any other employé as by the superintendent. It was a mere incident in connection with the raising of the pole. And as it is the character of the act, and not the rank of the person performing it, which is the test by which to determine whether in the performance thereof the person acting is the representative of the master (Hanna v. Granger, 18 R. I. 507, 512; Larich v. Moies, 18 R. I. 513; Moody v. Hamilton Mfg. Co., 159 Mass. 70, 38 Am. St. Rep. 396), it is clear that in the giving of said order the superintendent was acting as a fellowservant.

The recent case of Donnelly v. San Francisco Bridge Co., 117 Cal. 417, is singularly pertinent. There the plaintiff was injured while engaged in the work of pile-driving. A pile had been driven too deep, and the plaintiff, with other men, was sent by the superintendent to lay a foundation for a jackscrew to raise the pile. This required the plaintiff to work under the pile-driver. He was engaged in carrying and arranging blocks upon which to place the jack. The blocks were supplied from a place ten or twelve feet above, from which height 388 they were thrown down to the workmen below, the superintendent directing the work. While the plaintiff was stooping down to pick up a block he was struck by one thrown from

above. The man above inquired before he threw the block if all was clear below, and was answered in the affirmative by the superintendent and others, and the block was thrown. The superintendent, when he gave his answer, was standing within a few feet of the plaintiff, and there was nothing to obstruct his view of him. It appeared that the superintendent noticed the plaintiff the instant after he had given the order, and called to the workman to hold, but it was too late, as the block was already falling. The court held that the injury resulted from the negligent performance of an act which it was no part of the duty of the defendant to perform, and hence that as to that act the superintendent was not the representative of the master, and reversed the judgment of the court below, which was in favor of the plaintiff.

We think that it is clear, both from our own decisions and from the weight of authority generally, that the declaration does not state any cause of action.

Demurrer sustained, and case remitted to the common pleas division with direction to enter judgment for the defendant for costs.

FELLOW-SERVANTS.-WHO ARE fellow-servants is discussed in the note to Fisk v. Central Pac. R. R. Co., 1 Am. St. Rep. 32, 33; Fox v. Sandford, 67 Am. Dec. 588-597; Lawler v. Androscoggin R. R. Co., 16 Am. Rep. 495-502. The character of the act, in the performance of which an injury results to a coemployé, determines whether the offending servant is a representative of the master; his place or grade of service is immaterial: See the monographic note to Mast v. Kern, 75 Am. St. Rep. 587-589.

ANGELL v. LEWIS.

[20 Rhode Island, 391.]

LAW OF ROAD.-The driver of a team taking the left-hand side of the highway assumes the risk of consequences which may arise from his inability to get out of the way of another team ap proaching on the right side of the road, and is responsible for injury, sustained by the latter while exercising ordinary care.

LAW OF ROAD.-One who violates the law of the road by driving on the left side assumes the risk of such experiment, and is required to use greater care than if he had kept to the right, and if, under such circumstances, a collision takes place, the presumption is against the person on the left side of the road, especially if the accident occurs in the dark.

LAW OF ROAD.-The driver of a team has the right to presume that the driver of a team coming in an opposite direction Am. St. Rep., Vol. LXXVIII-56

will observe the law of the road and keep to the right, as he himself is doing.

LAW OF ROAD.-If the driver of a team observing the law of the road discovers a team approaching in an opposite direction in time to prevent a collision, by stopping or otherwise, it is his duty to do so, although the driver of the other team is guilty of negligence in violating the law of the road.

A. J. Cushing, for the plaintiff.

S. A. Cooke and L. A. Angell, for the defendant.

892 TILLINGHAST, J. The evidence shows that on January 3, 1897, between 5 and 6 o'clock P. M., the plaintiff's wife, together with her hired girl, while driving from her home at Fruit Hill toward Centredale, in North Providence, in the plaintiff's team, which consisted of a horse and top-buggy, met with an accident in the following manner: The plaintiff's wife, while driving along on the right-hand side of the road, saw two teams coming toward her from the opposite direction, and seasonably turned out still further toward the right to allow them to pass. As she was passing them the defendant, who was in his team-a two-wheeled village cart-immediately in the rear of said teams and coming in the same direction, instead of keeping behind them, suddenly turned out to his left, and, in attempting to pass said teams, ran into the plaintiff's team, and caused the damage to recover which this suit is brought. It was dark and foggy at the time of the accident, and a team could not be seen at any considerable distance. The defendant admits that there were two teams ahead of him; that he turned out to his left to go by them, and that as he turned out he met and collided with the plaintiff's team, which he did not see until he started to go by the others, when it was too late to avoid the collision. He also admits that when he pulled out to pass the teams ahead of him he was not thinking that some one might be coming toward him on the other side of the road. The road where the accident happened was practically level and was thirty-seven and one-half feet in width, twenty-five feet of which, at least, could be safely used for carriages. The teams in front of defendant were traveling, according to the testimony of the persons driving the same, at the rate of eight or nine miles per hour 393 when defendant attempted to pass them; and the evidence is pretty clear that defendant was driving at a rapid pace when he attempted to pass the other teams.

These being the material facts in the case, the verdict of the jury, which was for the defendant, was clearly against the evidence and ought to be set aside.

General Laws of Rhode Island, caption 74, section 1, provides that: "Every person traveling with any carriage or other vehicle, who shall meet any other person so traveling on any highway or bridge, shall seasonably drive his carriage or vehicle to the right of the center of the traveled part of the road, so as to enable such person to pass with his carriage or vehicle without interference or interruption."

The evidence shows that the plaintiff's wife complied with this requirement on meeting the two teams aforesaid, and that she was in the act of passing them safely, when the defendant suddenly pulled his team to the left and collided with hers. In thus taking the wrong side of the road, the defendant took the risk of the consequences which might arise from his inability to get out of the way of another team approaching on the right side of the road, and is responsible for injuries sustained by the latter while exercising ordinary care. In other words, one who violates the "law of the road" by driving on the wrong side assumes the risk of such an experiment, and is required to use greater care than if he had kept on the right side of the road; and, if a collision takes place in such circumstances, the presumption is against the party who is on the wrong side. And this is especially true where the collision takes place in the dark: Cruden v. Fentham, 2 Esp. 685; Shearman and Redfield on Negligence, 4th ed., sec. 651; Elliott on Roads and Streets, 620, and cases cited in notes 5-7; Chaplin v. Hawes, 3 Car. & P. 554. In Brooks v. Hart, 14 N. H. 307 (311), the court says: "It is legal negligence in anyone to occupy the half of the way appropriated by law to others having occasion to use it in traveling with teams and carriages, and he is chargeable for any injury flowing exclusively from that cause." To the same effect are Wilson v. Rockland Mfg. Co., 2 Harr. (Del.) 67 (70), and 394 Fales v. Dearborn, 1 Pick. 345: See, also, 12 Am. & Eng. Ency. of Law, 957-960, and cases; Kennard v. Burton, 25 Me. 39, 43 Am. Dec. 249. The plaintiff's wife had the right to presume that the driver of any team coming in the opposite direction would duly observe the law of the road as she herself was doing: Wood v. Luscomb, 23 Wis. 287 (291); and hence she was not called upon to exercise that degree of care which devolved upon the defendant when taking the wrong side of the road: Pluckwell v. Wilson, 5 Car. & P. 375. Of course, if