received in the mistaken effort. It is not the exercise of common or ordinary care on his part. When alighting from a street car, a person is not bound as a matter of law to look both ways; but he must look where he is going, and he must not walk blindly into danger. A driver of an automobile has the right to suppose that a person, whether on foot or in a vehicle, when duly warned in sufficient season, will not cross his path, or attempt to do so; but if he does make such attempt, it is the duty of the driver to do everything in his power to avoid an accident. When two automobiles are passing, it is the duty of each driver to look out for pedestrians suddenly appearing from behind the other automobile.

Section 1171.-INJURY OF PERSONS ENGAGED AT WORK IN THE ROADWAY.-One who carelessly injures a laborer or other person whose vocation calls upon him to be in the highway, is liable for the injury inflicted. In Los Angeles, an employee of the Los Angeles Street Railroad Company was oiling the tracks on the street, in pursuance of his employment. While he was so engaged, the driver of an automobile proceeding along East First Street, at a high rate of speed, carelessly and negligently ran into him. The jury gave a verdict for the plaintiff for $7000 damages. The District Court of Appeals affirmed the judgment, and said that under the circumstances it was the duty of the driver of the automobile to proceed at a slow pace, if he were to escape liability even to a pedestrian for injuries done to him. It appears that the plaintiff in this case was walking backward, but that he had to go backward in the performance of his work. The court says: "Had a pedestrian with no occupation requiring his presence in that part of the street opened to the use of vehicles been struck by a passing vehicle, while he was backing along the road not looking to see where he was going, it is clear he would have been guilty of contributory negligence; but the rights of a laborer whose duty requires him to be in the

Not roadway, cannot be determined by the same rule. that he is bound to exercise any less care, but because the care to be exercised must be determined from a different standpoint. The proper discharge of his duties required the plaintiff to move backward along the road in which he was oiling. He did this in such a manner as to face in the direction from which any car or vehicle obeying the law of the road would approach, and also looked in the other direction often enough to satisfy the trial court that he was exercising due care at the time he was struck. His care or want of care was a fact to be determined from all the circumstances surrounding him at the time." (Decided by the District Court of Appeals, in the case of King vs. Green, which decision is printed in Volume 94 of the Pacific Reporter, page 777.)

Section 1172.-PERSONS UNDER DISABILITIES. -At times a greater degree of care is demanded of an operator of an automobile than at other times. Thus, if a person under obvious disability, such as old age, infancy, lameness, drunkenness, or the like, is crossing the road, the duty of avoiding him is greater than if he were a person of ordinary capacity. Care and caution must be exercised in proportion to the apparent risk.

Babbitt's Law Applied to Motor Vehicles, page 279.

Section 1173.-CHILDREN IN THE STREET.-The rule of law is, that streets and highways are made for the use of all travelers, children as well as others. But in the case of children, the question of negligence becomes largely a question of due care on the part of the person having charge of the child, allowing it to be in the place where the injury was received. In the case of children who are of an age to go about unattended, to school and the like, the rule requires of them the use of such discretion as such children have-not so much as in the case of an adult, but only the ordinary care of school children. The operator

of a car in a street where there are children is required to manage his car with reference to all the risks that may reasonably be expected, and among these may be reckoned the risks arising from the heedlessness and indiscretion of children in the street. Being or playing upon a street is not of itself contributory negligence in a child of tender years. If the child is of sufficient age and discretion to be in the street alone, then an error of judgment, based on such experience and discretion as a very young child would naturally possess, is not negligence on the child's part, particularly if the error in judgment was the result of circumstances calculated to inspire fright, such as the unexpected or sudden appearance of an automobile.

EXCEEDING

Section 1174.-DEFENSE OF NOT SPEED LIMITATIONS.-No owner or operator of an automobile is exempt from liability for a collision in a public street by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by state law or city ordinances. On the contrary, no matter how great the rate of speed may be, which the general law and city ordinances permit, the operator of an automobile still remains bound to anticipate that he may meet persons on any point in a public street, and he must keep a proper lookout for them, and keep his machine under such control as will enable him to avoid collision with another person also using proper care and caution. If necessary, he must slow up, and even stop. No blowing of a horn or of a whistle, nor the ringing of a bell, without an attempt to slow the speed is sufficient if the circumstances at a given point demand that the speed should be slackened or the machine be stopped, and where such a course is practicable. The true test is, that the operator must use all the care and caution which a careful and prudent driver would have exercised under the same circumstances. The idea prevails among some motor drivers, that when once they have sounded the horn they are justified in going at any rate of

speed, and that people are bound to get out of their way; but the law will not excuse the owner or driver of an automobile for any such reason.

Section 1175.—EVIDENCE OF OVER-SPEEDING. -In cases where drivers or owners are being prosecuted for over-speeding, the testimony of a witness who has had experience in timing or knowing the speed of motor vehicles is evidence of better quality than that of one who has not. If the speed was timed over a known or measured distance by a clock or time piece, or by a stop watch or other mechanical device, in the possession of a person skilled in managing it, such evidence would have greater weight than that of a witness who spoke from impression only.

Section 1176.-RESPONSIBILITY OF OWNER FOR NEGLIGENCE OF DRIVER.-The general rule in this country, as to the extent of the liability of the master for the act of his servant, is, that if the act is done without the authority of the master and not for the purpose of obeying his orders or doing his work, then he is not responsible; but if it is done in the execution of the authority given by the master and for the purpose of performing what he has directed, then he is responsible, whether the act be negligent or wilful. The test to determine whether a master is liable to a stranger for his servant's misconduct, is to inquire whether the latter was doing what he was employed to do at the time he caused the injury complained of. If he was, the fact that he was not doing it in the way expected is immaterial. But, if at the time he did the act which caused the injury, he was not acting within the scope of his employment, the master is not liable. The master is one who has the supreme charge, control and direction of the servant, and whose will the servant represents not merely in the work, but in all its details. In strictness, the servant is one who for a consideration engages in the service of another and undertakes to serve his direction in some lawful business. Therefore, if the master is himself driving his car, and from

want of skill causes injury to a passerby, he is, of course, responsible for that want of skill. If, instead of driving the car with his own hands, he employs a chauffeur to drive it, the chauffeur is but an instrument set in motion by the master. It was the master's will that the chauffeur should drive, and whatever the chauffeur does, in order to give effect to his master's will, may be treated as the act of the master. The acts of the chauffeur, when operating an automobile, within the authority of his employment, are the acts of a servant. The relation of master and servant exists between the chauffeur and his employer, and the employer is responsible for the acts of his servant done within the limits of his employment.

Section 1177.-RESPONSIBILITY FOR AN OPERATOR WHO IS NOT HIRED.-When the car is being driven by a friend upon invitation or by permission, if the owner is present, the law presumes that he has retained control of the car, and the law would imply an agency upon the part of the friend, which would render the owner liable for his acts.

Section 1178.-LIABILITY OF CORPORATIONS.Corporations, like individuals, are liable as employers, for the acts of their servants in operating automobiles on the roads or streets in pursuance of their employment.

Section 1179. - EMPLOYER'S RESPONSIBILITY FOR UNAUTHORIZED USE OF CAR.-The chauffeur has no right to use his employer's car to serve his own needs and purpose, whether of business or pleasure. Such acts are wholly outside the relation of master and servant, and in such cases the master cannot be held liable for the wrongful acts of the servant, for they are clearly outside of the employment. If a chauffeur takes out the car, without his employer's knowledge or consent, for a joy ride or frolic of his own, or if he so uses it outside of his employment for his own business, the employer is not liable for damages caused