business. This exception, however, is not a real exception, for transportation is itself but an aid to or incident of business done elsewhere than in a street."

Justice Provosty further says that: “No good legal ground could be found in any particular city to deny to these vehicles the use of its streets when every other city in the world allows such use as a matter of course."

We submit that the learned justice is too much impressed by the fact, that the general use of such vehicles stands for recognition of absolute right to use the streets, when it merely indicates that regulation has not been asserted. The comparison the Chief Justice makes between a common carrier and a baker using the street for his private use scarcely could be more apt. Both businesses are subject to regulation and long have been.

If vehicles used for carriage of passengers or freight for hire have any rights in a street, that are not possessed by other businesses purely private, upon what is the difference based? The public interest in the business of a carrier cannot be thought to confer any right in a highway. Its only effect is to confer a right on the public because by its permission business uses highways for private advantage. But this is in the way of grant by the public, which can attach any conditions to the grant it sees fit. When it attaches one condition it is not implied that it has estopped itself from attaching other conditions. It is not presumed to exhaust its power by a single regulation or a series it makes. Were this so, none of the elaborate regulations, that are now being enforced, could have been begun at all, except as to subsequently established businesses. This subject has been very fully treated in cases, where it has been claimed, that public utilities were free from regulation, because of grants, in which it was expressly agreed vested rights were conferred, and the obligation of contracts were impaired.

NOTES OF IMPORTANT DECISIONS.

CARRIERS-RIDING FREE WITH EMPLOYE'S CONSENT.-Recovery in a state court for one riding on the tender of an engine by the engineer's permission was reversed by the U. S. Supreme Court, because of federal statute making it a misdemeanor for a carrier to grant or any person to accept any interstate free transportation, the state court holding that the statute had nothing to do with the matter. Illinois C. R. Co. v. Messina, 36 Sup. Ct. 368, Justices Hughes and McKenna dissenting.

Justice Holmes said: "We cannot think that, if a prominent merchant or official should board a train and by assumption and an air of importance should obtain free carriage, he would escape the act. We are of opinion, therefore, that the act was construed wrongly."

Justice Hughes said: "Congress did not concern itself with the possibility that prominent persons or others might steal a ride through the unauthorized action of some employe of the railroad company. Congress was concerned with the well-known abuse which consisted in the giving of passes or free transportation by railroad companies and it directed its legisla tion to that abuse."

Though it be evident that the mind of Congress was directed only to the things of which the dissenting Justice speaks, still it seems to us that all and every kind of free transportation was forbidden to be given or accepted. While it may be true that accepting permission to ride from one unauthorized to give permission may be the same thing as to "steal a ride," yet is not this true also of one riding in plain contravention of the statute, to-wit: the well-known abuse spoken of? In this way the "prominent merchant or official" who rides in the tender is the same as the tramp who does not steal by permission of the engineer.

made a transfer of any of his property and if at the time of transfer or the record

ing or registering of the transfer, if by law recording or registering is required and being within four months before the filing of the petition in bankruptcy or after filing thereof and before adjudication, the bankrupt be insolvent and the transfer then operate as a preference, etc., shall be voidable by the trustee."

In the sixth, seventh and eighth circuits their Courts of Appeals have held that the period of four months refers to the character of the instrument, while in the second, fifth and ninth circuits the time runs from date of the instrument or may, according to the requirement of state local law, so run.

Justice Hughes, in this case, refers to Ohio decision to the effect that under the statute of that state failure to record a deed did not render it invalid as to creditors of the grantor, notwithstanding they became such on the faith of his representation that he was the owner of the property conveyed. Construing this ruling, Justice Hughes said: "We assume that there was no requirement that this (one referred to) conveyance should be recorded in order to give it validity as against any creditor of the bankrupt, whether a general creditor or a lien creditor or a judgment creditor with execution returned unsatisfied; that is, as against any class of persons represented by the trustee or with whose 'rights, remedies and powers' he was to be deemed vested."

This, however, was claimed by the trustee not to be determinative of the manner in which the bankruptcy statute was to be applied. The Justice thereupon traces the history of section , 60 and deduces the conclusion that "as Congress did not undertake to hit all preferential transfers (otherwise valid)" the inquiry is simply as to the nature of the requirement of recording to which it referred

* *

*

the natural and, as we think, the intended meaning, was to embrace those cases in which recording was necessary in order to make the transfer valid as against those concerned in the distribution of the insolvent estate.

Under this view the time to be considered, with reference to the four months' period, is not uniform but varies according to the rule in the state where a conveyance is made-in some it may begin from the date of the filing for record, in others from the date of con

veyance. There is here merely construction of the bankruptcy statute and, as we see, it recognizes the validity of state laws, just as is recognized such validity where a bankrupt claims relief under homestead and exemption laws. In the latter case the bankrupt is not deprived of his rights because of the proceeding or the forum in which it is and so where his vendee claims a right.

RIGHTS AND DUTIES OF AUTOMOBILE DRIVER WHEN MEETING AND PASSING HORSE-DRAWN

VEHICLES.

Introductory.-All persons have equal right to use the public highways for purposes of travel by proper means; and all alike must exercise reasonable care for the safety of others.2

The driver of a horse-drawn vehicle has no rights in the highway superior to the rights of the driver of an automobile; both have the right to go upon the public highway, and each is restricted in the exercise of his rights by the corresponding rights of the other, and each is entitled to regulate his use of the highways by the observance of ordinary prudence under all circumstances.

It is the duty of drivers of every kind of vehicle to watch ahead for other vehicles. so that injury to others as well as themselves may be avoided.

Sometimes by statutory provision operators of automobiles are required to keep "a vigilant watch for all vehicles drawn by animals." The term "vigilant watch," as so used, is held to include, not only the task of looking ahead for animal-drawn vehicles, but while approaching them, to keep a sharp lookout for exhibitions by such animals of fright or uneasiness which,

necessary to prevent injury, aside from any statutory requirements; and this without reference to any negligence on the part of the persons he is meeting.12 This duty he owes to the driver of horses, whether the

accordingly, in the absence of notice or knowledge to the contrary.

Status of Automobile on the Highway.— Soon after the appearance of the automobile upon the highways as a vehicle of pleasure and commerce, it was declared not to be a nuisance, and not inherently dangerous.' And it is now beyond question that it is a proper means of conveyance on the public highways.

Consequently, no liability is imposed on the automobile operator on account of the character of his vehicle."

But the driver of an automobile has no

greater right in the use of the highways than the driver of any other kind of conveyance,1o and usually, in view of numerous statutes and ordinances regulating the use of automobiles, his obligations and duties are greater and more numerous than the driver of vehicles drawn by animals.

The operator of an automobile has the right to assume and to act upon the assumption that every other person traveling on the highway will exercise ordinary care and caution according to the circumstances.

11

or private one, and even though the driver of horses is a mere licensee, or even a trespasser, and the operator a lawful user of the highway.13

However, the fact that a horse becomes frightened by an automobile upon the highway does not render the operator of such vehicle liable for resulting injury, as the horse has no paramount or exclusive right to the road. But if he sees that a horse which he is meeting is restive and frightened, it is his duty, regardless of statute, to take such course to avoid causing an injury as the dictates of ordinary prudence may demand. He should reduce the speed. of his car, or stop it, if so requested or if he sees that this is necessary to avoid an accident, or do whatever a reasonably prudent man would do in the circumstances.14

The operator must use good judgment and be guided by the exigencies of the occasion. It may be necessary not only to stop the automobile at the side of the road to allow the horse-drawn vehicle to pass, but to stop the running of the motive power to prevent frightening the horses by the noise.15

Where the operator sees that a team he is approaching are becoming frightened at his machine and are liable to run away, and he increases the speed and noise of his machine and continues to approach them, his conduct is negligent, and he is liable for injury to the team caused thereby. Nor can he escape liability because the partic

(12) McIntyre v. Orner, 166 Ind. 57, 68, 76 N. E. 750 (13)

Knight v. Lanier, 69 App. Div. 454, 74 N. Y. Supp. 999. (14) Tyler v. Hoover, 92 Neb. 221, 138 N. W. Rochester v. Bull, 78 S. C. 249, 58 S. E.

128.

(15)

ular injury occurring could not reasonably have been anticipated; some injury being likely to result from his negligence.16

Operators must carefully observe all statutory requirements, but they are not insurers of the safety of persons they meet driving horses on the highways. Even under a statute regulating their conduct when meeting horse-drawn vehicles, and requiring them "to give such personal assistance as would be reasonable to insure the safety of all persons concerned and to prevent accidents," it was held error to charge the jury that it was his duty "to render such personal assistance as would insure the safety of plaintiff." "Effort reasonably directed to insure safety," said the court on appeal, "is a far different proposition from an absolute insurance of such safety, as directed in the instruction.”17

But the operator is required to take notice that his machine is liable to scare horses along the highway, and he should keep a proper lookout not to cause injury to others by the frightening of horses.18

Passing at Excessive Speed.-Allega tions showing that plaintiff's horse became. frightened by the speed at which defendant operated his automobile; that such speed was in excess of six miles an hour, which was in violation of a statute; and that such violation proximately caused the injury complained of, was held to state a cause of action.19

Following the rule that when the purpose of a statute is the protection of individuals, one who violates it is liable to those for whose protection it was intended for injuries directly resulting from its violation, the driver of an automobile who passes the driver of a draft animal at a

(16) Carsey v. Hawkins, Tex. Civ. App., 1911,

165 S. W. 64.

(17) Craton v. Huntzinger, 163 Mo. App. 718, 147 S. W. 512.

(18) Gaskins v. Hancock, 156 N. C. 56, 72 S. E. 80.

(19) Carter v. Caldwell, Ind. 1915, 109 N. E. 355.

rate of speed prohibited by statute, is liable for such injuries as proximately result because of the excessive speed.20

Driving on Wrong Side of Road.-Vehicles, whether automobiles, horse-drawn or bicycles, when meeting on the highways, must turn seasonably to the right of the center or traveled portion of the highway, in order to give the other room to pass.21

A driver is not necessarily negligent in driving on the left, or "wrong," side of the highway, as he is at liberty to use any part of the highway, except when meeting another vehicle or person, at which time, under the law of the road, he is required to keep to the right.22

The driver of a vehicle proceeding on the wrong side of the highway is not liable for injury to another incurred in a collision therewith, unless the negligent act of driving on the wrong side was the proximate cause of the injury. There must be a casual connection between the unlawful act and the injury.23 His presence on that side may be explained and justified.2*

Where the operator of an automobile is driving on the wrong side of the road at the time he collides with a horse-drawn vehicle, in violation of statute or ordinance, his presence there is held in some states to amount only to prima facie evidence of negligence.25 But in other states it is held to amount to negligence per se.20

As it is some evidence of negligence when it is shown that a person was driving on the wrong side of the road when his

(20) Schaar v. Cornforth, 128 Minn., 460, 151 N. W. 275.

(21) Slaughter v. Goldberg, Bowen & Co., Cal. App. 1915, 147 Pac. 90 (1915).

(22) Giles v. Ternes, 93 Kan. 140, 143 Pac. 491: 93 Kan. 435, 144 Pac. 1014.

(23) Baillargeon v. Myers, Cal. App., 1915, 149 Pac. 378; Giles v. Ternes, 93 Kan. 140, 143 Pac. 491; 93 Kan. 435, 144 Pac. 1014.

(24) Riepe v. Elting, 89 Ia. 82, 56 N. W. 285; 26 L. R. A. 769; Hubbard v. Bartholomew, Ia. 1913, 144 N. W. 13.

(25) Herdman v. Zwart, Ia. 1914, 149 N. W. 631.

(26) Slaughter v. Goldberg, Bowen & Co., Cal. App., 1915, 147 Pac. 90; Moy Quon v. Furnya Co., Wash. 1914. 143 Pac. 99.