Section 1150.- DAMAGES FOR NEGLIGENCE.Where a person or property are injured by the negligent running of an automobile, the owner and the chauffeur, or both, are liable for damages, but the owner is responsible for the act of his chauffeur only when such act is done in the course of his employment. Therefore, if the chauffeur should take the machine out, without the consent or knowledge of the owner, and at a time when he was prohibited from taking it out, the owner would not be responsible, for the chauffeur would not be acting at such time in the course of his employment. The owner is not responsible for the act of a borrower of his machine. But the owner is responsible for the act of a friend who may be driving for him, where the accident is caused by the carelessness, negligence, or the incompetence of such friend. If a person other than the owner has actual control of the machine, and employs the chauffeur, at the time of the accident, he, and not the owner, is responsible for damages.

Section 1151.-WHAT IS NEGLIGENCE.-What acts on the part of the person operating a machine will constitute negligence depends upon the peculiar circumstances of each case. If the operator fails or refuses to do what the law requires, in the operation of his machine, this of itself will constitute negligence; or if he fails to observe a degree of care on the streets or highways which an ordinary prudent man would be expected to observe, this would be negligence on his part for which he will be liable. In all cases, however, it is for the jury to say whether the operator was in fact negligent, or whether the person receiving an injury was himself careless and contributed to his own hurt.

Section 1152.-RELATION BETWEEN EMPLOYER AND CHAUFFEUR.-The acts of the chauffeur, in operating an automobile, within the authority of his employment, are the acts of a servant. The relation of master and servant exists between the owner and his employee, and in operating

the machine the chauffeur is the agent of the employer, and the employer is responsible for the acts of his agent. In civil actions, the person injured may sue the chauffeur or the owner, or both, for damages.

ence.

Section 1153.-CONFLICT OF ORDERS AND DUTY -It is no defense for the chauffeur to plead that his violation of law or duty was in obedience to the commands of his employer. The chauffeur occasionally finds himself between the horns of a dilemma. Such a situation arises when he receives an order from his employer, to do that which he knows from his knowledge of the law to be a violation thereof. The persistency of the employer may be such as to threaten the loss of position in case of disobediThe dilemma presents itself to the chauffeur in this way: "If I disobey the order and obey the law, I lose my position. If I obey the order disobeying the law, I risk a chance of being caught in the latter for the sake of a certainty of saving my position." Obedience to the law should control the chauffeur in any view of the matter, because if he loses his position by disobedience to order, he still has his license, and may be employed again; but if he loses his license, not only does he lose his position, but he also loses the chance of being employed by someone else. In any event, if he disobeys the laws he runs an obvious risk, and it does not lie with him to complain if the law finds him out.

Babbitt's Law Applied to Motor Vehicles, page 204.

Section 1154.-RESPONSIBILITY OF TAXICAB DRIVERS. The chauffeur of a taxicab, or of a sightseeing motor omnibus, will be held to the exercise of more abundant caution and to the exhibtion of a finer skill than would be required of the operator of a private car. This is upon the theory that by reason of his constant practice, he is expected to obtain the highest attainable dexterity.

Section 1155.-DEMANDING OR ACCEPTING A COMMISSION OR BONUS.-Good faith demands that an agent should not without the knowledge and consent of the principal make any profit out of the agency, beyond his stipulated pay. If, therefore, the chauffeur, who under general or special instructions should purchase supplies or order repairs, demands or accepts a commission or bonus, or other fee or reward, from the person to whom the order is given or from whom the purchase is made, he is guilty of a violation of his duty to his employer.

Section 1156.-ORDERING SUPPLIES AND REPAIRS. A chauffeur by virtue of his position has no authority to contract for general repairs. In cases of sudden or unexpected breakdown, or "road trouble," he may bind his employer in ordering such repairs of a temporary character, or necessary supplies, as will enable him to continue his journey; but he has at no time implied authority to make contracts for repairs of a general or permanent nature.

Section 1157.-PLACING CAR IN STORAGE. It is the chauffeur's duty, in case of a breakdown on the road, to put his employer's car for safe keeping in some proper place, and the employer will be responsible for the proper expenses of such storage.

Section 1158.-GENERAL RULES AS TO THE EXERCISE OF CARE.-Travelers must always exercise at least ordinary care and skill, being guilty of no want of proper diligence, nor of rashness or mismanagement. In automobile cases, the burden usually rests heavily on the motorist, by reason of the character of the vehicle. The meaning of the word care, and what constitutes due care, are relative. They may mean one thing on a country road, and another thing on the crowded street of a city. The operator of an automobile must use reasonable care and skill, and a traveler on foot or in another vehicle must also take care of himself. A public highway is open in all its length and breadth to the reasonable, common and equal use of the people, on foot

or in vehicles. The owner of an automobile has the same right as the owner of other vehicles to use the highway, and like them he must exercise reasonable care and caution for the safety of others. A traveler on foot has the same right to the use of the public highway as an automobile or any other vehicle. In using such highway all persons are bound to the exercise of reasonable care to prevent accidents. Such care must be in proportion to the danger in each case. There is a like duty of exercising reasonable care on the part of all. The person having the management of the automobile, and the traveler on foot, are both required to use such reasonable care, circumspection, prudence, and discretion as circumstances require; an increase of care being required where there is an increase of danger; and both are bound to the reasonable use of all their senses for the prevention of accident, and to the exercise of all such reasonable caution. as ordinary careful and prudent persons would exercise under the same circumstances. The more dangerous the character of the vehicle or machine, and the greater its liability to do injury to others, the greater degree of care and caution is required in its use and operation. The person traveling by foot on a public road is required to use reasonable care to avoid collision with an automobile, and if he saw the automobile before it struck him, or by the reasonable use of his senses could have seen it, in time to avoid the injury, it was his duty to get out of the way. It is the duty of the motorist to keep a vigilant watch ahead for other vehicles, and on the first appearance of danger to take proper steps to avoid it.

TRAVELING AT

Section 1159.-CARE WHILE NIGHT. In running a car at night, the exercise of ordinary care requires greater vigilance than in the daytime, particularly in a strange locality; and it is negligent to run an automobile without lights sufficient to enable the traveler to see objects ahead of him. The same principle applies where rain, mist, or fog prevail to obscure the outlook. In

a case at Los Angeles, the evidence showed that at about six o'clock P. M., while a woman was crossing Main Street, she was struck and knocked down by an automobile operated by defendant, which she did not see until it was upon her, as a result of which she sustained serious injuries; and that it was dark at the time, and before attempting to cross the street, she looked up and down the street and saw no vehicle approaching. There were no lights on the machine. There was introduced in evidence an ordinance of the city of Los Angeles, making it unlawful to operate a machine upon the streets of the city between one-half hour after sunset and onehalf hour before sunrise, unless such automobile displayed a lamp or lantern throwing a white light toward the front and a red light toward the rear of the machine. On the day of the collision the sun set at 4:50 P. M. The court instructed the jury that a failure to comply with the municipal ordinance was negligent in itself; and that if they found the plaintiff had not done anything to bring the injury upon herself, they must give a verdict of damages against the defendant. The District Court of Appeals, in deciding the case, said that it must assume, in the absence of any proof to the contrary, that plaintiff was in the possession of the sense of seeing, and hence, had the car possessed the lights required by the ordinance, she might have seen the car approach and avoided the collision. Such evidently was the view entertained by the jury and they were justified in their verdict for damages. (Decided by the District Court of Appeals, in the case of Fenn vs. Clark, which decision is printed in Volume 103 of the Pacific Reporter, page 944.)

Section 1160.-CLIMBING OR HANGING ON BEHIND. It is not the duty of a driver of an automobile to keep a lookout behind, so as to see whether children or adults are riding on the rear end. Instead, his duty is to look ahead, to avoid collision with persons or with other vehicles. Nor does he owe even to children any duty to prevent them from climbing upon his vehicle while in motion; but if his