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jury in accordance with defendant's fourth pany is liable for the injuries received by the request, which reads as follows: plaintiff."

We do not see any error in charging the jury in accordance with this request, nor do we see any error in the refusal of the trial court to grant a new trial; the latter being covered by the defendant's exception number21.

"You are instructed that in arriving at a verdict in this case you are to act just as if the case had been brought against the defendant's employé, Alexander J. Lodge, instead of the defendant company, and you should not find a verdict against the defendant, the Revere Rubber Company, unless you would have founded a verdict against Alexander J. Lodge if the case had been brought against him."

While this language might have been used with propriety in the course of argument, it does not seem to us that it was of any particular importance as an instruction to the jury.

The defendant's twelfth exception is to a portion of the charge to the effect that the last half of section 1, c. 87, Gen. Laws 1909, in no respect changes the rights or duties of the automobile about to pass a team in regard to vehicles going the other way. It is not altogether clear as to what the trial court had in mind in giving this instruction. The section of the statute referred to deals with two situations: (1) When parties proceeding in different directions approach each other; and (2) when one vehicle desires to pass an other going in the same direction. As we have before substantially said, a person attempting to pass a vehicle ahead of him and going in the same direction must exercise proper care in so doing. If a vehicle is approaching from the opposite direction at the moment when he desires to pass the vehicle in front, and the highway is not wide enough

to safely accommodate all three teams abreast, then it would be the duty of the person in charge of the rear vehicle, in the exercise of proper care under the circumstances, to wait until the vehicle coming in the opposite direction had passed by before he attempted to turn out. It is not necessary to involve the question as to the duty of the vehicle in the rear, in passing, towards another vehicle that may be approaching in an opposite direction. The approach of the vehicle in the opposite direction is simply one of the circumstances which must be considered by the rear man when he attempts to pass. It is simply one of the things which demands the exercise of care upon his part

under all circumstances, and in some circumstances he would be required to refrain from attempting to pass until the approaching vehicle had gone by.

[11] The defendant's seventeenth exception is based upon the charge of the court as requested by the plaintiff in his fifth request. This request is as follows:

"If you find that at the time of the accident the plaintiff was riding upon Point street on his right side of the highway, and was in the exercise of ordinary care, and the driver of the auto truck of the defendant company suddenly drove his truck to the left side of the highway in an effort to pass a team in front of him, and the plaintiff was unable to get out of the way of the auto truck owing to the suddenness of defendant's approach in front of him, by the excrcise of ordinary care, then the defendant com

The defendant's exceptions 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 17, and 21 are overruled. The defendant's exceptions 3, 11, 13, 14, 15, 16, 18, 19, and 20 are sustained, and the case is remitted to the superior court for a new trial.

JOHNSON, C. J. (dissenting). I am unable to agree entirely with the opinion of the majority of the court. By said opinion all the defendant's exceptions are overruled except its exceptions numbered 3, 11, 13, 14, 15, 16, 18, 19, and 20, which are thereby sustained. I dissent only as to the exceptions sustained.

The third exception is to the exclusion of the record of the Rhode Island Hospital. Upon the subject of said record prior to the offer thereof in evidence, Dr. McAlilay testified that in June, 1912, Dr. Johnson was house surgeon. Dr. Peet was the second, and the witness the third, man in the service. He said:

"Well, the last six weeks of every service, that is of every houseman's term, which is three months, his junior writes the continued notes; the first six weeks of his own service the house surgeon writes them himself."

He testified that this was Dr. Peet's duty during the early part of the period when the plaintiff was at the hospital; that Dr. Peet was then the junior house surgeon; that the records were in Dr. Peet's handwriting from June 15th to August 15th; that Dr. Peet was at Philadelphia, at the time of the trial. The question was then asked:

"How are these records made up; what is the custom and rule of the hospital' with reference to the making up of the records, Doctor?" A. "The man who has charge of writing the names on the case is supposed to make notes on that case every three days, that is, the important things that have happened in the case, every three days and oftener if necessary."

The question is then asked:

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"And then those notes are incorporated into the hospital record?" A. "Yes, sir." Q. "Are those notes which he makes every three days in the usual course of his duty based upon his own observation or upon the observation of himself and others?"

The witness: "I served three months as senior man on the nose and throat service, and I had to make records every three days. I served nearly three months as house physician, and I had to make notes every three days on every patient."

The Court: "Is your answer complete?"

Witness: "No. I said that you made the notes from your own observation and the observation of your visiting man on the rounds, and I said that was my experience, and my experience is the custom of the hospital; that is, it is the custom there for every man to do the same thing."

The record was then offered. It was ruled out, and defendant's exception noted.

This record was offered for the purpose of showing unruly behavior on the part of the plaintiff and his disobedience of the orders of the surgeons and nurses as to keeping quiet and refraining from movements which would be likely to interfere with the proper adjustment and knitting together of the fractured bone. It also appears in evidence that some, if not all, of those who reported the plaintiff's condition and actions from time to time were called as witnesses at the trial, and that therefore, as the plaintiff claims, the exclusion of the record did not in effect deprive the defendant of any useful or important testimony.

And in section 1424:

The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements by way of exception to the rule therefore presupposes that the assertor possessed the qualifications of a witness in regard to knowledge and the like. These qualifications are fundamental as rules of relevancy, and can never be dispensed with. Thus these extrajudicial statements may be inadmissible because of their failure to fulfill the ordinary rules about qualifications, even though they meet the requirements of a hearsay exception."

"Personal knowledge of entrant; entries by bookkeeper, etc., on report of salesman, teamgeneral principle of testimonial evidence (ante, ster, etc. (1) There can be no doubt that the section 657) should apply here as elsewhere, namely, that the person whose statement is received as testimony should speak from personal observation or knowledge. This principle has often been invoked in excluding entries made by persons who had no personal knowledge of the supposed facts recorded.

* *

The objections of the plaintiff to the admission of the record made by Dr. Peet, as set forth in his brief, are: (1) That there is nothing in the case to show that such record the hearsay exceptions, must be subject to the "The use of a party's entries, like that of all is required by law or ordinance; (2) that ordinary principles of testimonial qualifications. there is nothing to show that it was the duty Ante, section 1424. When the party is the enof any particular person to keep such record; trant, then he must have the elementary quali(3) that it was not a public record, but some-action recorded. fication, the personal knowledge of the transAnte, section 657." Id. § thing that was kept simply for the conven- 1530. ience and assistance of attending doctors and The admission of such records is discussed nurses; (4) that the recording was not con- in Delaney v. Framingham Gas, etc., Power temporaneous with the happening of the Co., 202 Mass. 359, at page 366, 88 N. E. 773, events recorded; (5) that some of the events at page 776, the court said: recorded were not within the personal knowledge of the person recording them; and (6) that facts reported by others to Dr. Peet and by him recorded were capable of proof by those who reported them, and who were, or might have been, called as witnesses on behalf of the defendant. It appears from the evidence that some of the facts recorded by Dr. Peet were not within his personal knowledge, and the plaintiff claims that, it being impossible to separate the facts therein due to such personal knowledge from those received by reports from others, the record as a whole must be excluded.

Upon the question of knowledge on the part of the witness, it is said in section 657 of Wigmore on Evidence:

"Knowledge must be founded on personal observation by the senses, not on hearsay. The first corollary from the general principle of knowledge is that what the witness represents as his knowledge must be an impression derived from the exercise of his own senses, not from the reports of others; in other words, must be founded on personal observation. This general rule, to which contrary instances can be only casual exceptions, has long been recognized as fundamental. Upon this principle, the testimony of one claiming to have knowledge has constantly been rejected, when it appeared that he had lacked personal observation.'

"So far as respects the admissibility of the records of the Carney Hospital under St. 1905, c. 330, the same rule applies because these recdefendant insists, however, that the records of ords also were made before it was passed. The this hospital are admissible under the common law. While it is true that the records were not made in accordance with a requirement of law, and therefore were not legal records within the meaning of the rule that legal records or copies thereof are generally admissible, still it appears that they were made in the usual course of business by a person in the discharge of a duty, who appears not only as the maker of them, but as their custodian. If she had died and her handwriting had been proved, in the absence of any other testimony as to the manner in which they As in the case of Townsend v. Pepperell, 99 were made up, they would have been admissible. Mass. 40, it would have been assumed that the records were of facts known to her. The rule entries must be made by a person having perapplicable to such records ordinarily is that the sonal knowledge of the truthfulness of the statements. This test has been applied by this court in the case of shop books offered to prove delivery of goods, and it has been held that where the clerk who made the entries had no knowledge of the facts, the entries are not admissible, although the clerk testified that he correctly put down the information he received from the person by whom the delivery was said to be made.

* It is true that this rule has not been applied with the same strictness to other memoranda. But in substance the general principle is the same. In the leading case of Welsh v. Barrett, 15 Mass. 380, 386, in which a bank's messenger's memorandum of a demand and notice made by him in the course of his duty was admitted upon proof of his handwriting, he being dead, the principle was stated in these words: 'What a man has said when not under oath may not, in general, be given in evidence when he is dead, because his words may be miscon"Under the exceptions to the hearsay rule the strued and misrecollected, as well as because it testimony of the witness deceased or absent cannot be known that he was under any strong must equally be based on personal observation." | motive to declare the truth. Yet there are well

Among the exceptional cases under this principle when knowledge founded on hearsay may suffice is that of testimony of deceased or absent persons under the hearsay exception. Upon this, Mr. Wigmore says, in section 670:

known exceptions to this rule, as in questions concerning pedigree. But what a man has actually done and committed to writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury.' And the rule has been adhered to quite generally except where in the course of the business the clerk making the entry receives his information either orally or in writing from various persons whom he cannot expect to remember, and whom it will be impracticable to call. To apply the rule in such a case, and to require the evidence of every person in the long line of persons who have had anything to do with the transaction recorded, would be practically impossible, and so as a practical necessity the record is admitted upon the oath of the recorder, if alive, or upon proof of handwriting if he be dead. It is probable that this exception has been carried farther elsewhere than in this state. For a general discussion of the subject, see Wigmore on Evidence, § 1530, and cases cited in the notes. In our own state this exception seems to have been recognized in Briggs v. Rafferty, 14 Gray (Mass.) 525; Adams v. Coulliard,' 102 Mass.

167.

"In the present case the records were produced by the witness Gabagan. It appeared that the records were made by her, and that she was the proper custodian of them. But it further appeared that she never had any personal knowledge of the facts stated therein; that she received slips of paper from Dr. Painter, the physician, and copied them into the record; and that was all she knew about them. The record was offered as evidence to show that the statements therein made were true. As handed to the witness by the physician, they were simply statements of the physician as to what the patient had said to him, or as to the diagnosis made by the physician. The records were comparatively recent. It was not shown that the physician was not living and within the jurisdiction of the court. No necessity was shown, therefore, for the introduction of this hearsay testimony. For aught that appeared there was better evidence. Under these circumstances the reason upon which the general rule was based. namely, that the record should be a record of facts of which the writer had personal knowledge, should be applied. The case is not within the above-mentioned exception to the general rule."

witness would be permitted to corroborate his testimony by saying that the witness had previously made the same statement to him. Further, the judge, on the evidence submitted preparatory to the offer of the record kept by the junior house surgeon, may properly have found that the record was imperfect or not properly kept. Upon such a finding it would be properly excluded. In my opinion there was no error in the exclusion of the record offered.

The defendant alleges error in the charge to the jury with reference to the conduct of the plaintiff in the hospital. The defendant requested the court to charge the jury upon this point as follows:

"If defendant is liable in this case it is only for the natural consequences resulting from the collision. If the plaintiff unreasonably disobeyed the orders of the physicians or nurses in the hospital with regard to keeping quiet, and this failure produced more serious injury accident, the defendant is not responsible to the plaintiff for this aggravation of his inju

than would otherwise have resulted from the

ries."

This request was refused, the court charging the jury as follows:

"Now the first thing in that connection, and to my mind one of the most important things for you to decide, is, is it established as an affirmative fact that the plaintiff's acts have caused an aggravation of the injury? I instruct you that, unless you find on the evidence as an affirmative fact that the plaintiff by his acts has caused such aggravation of the injury, then you are to dismiss this claim from your consideration. It is not enough to decide that the plaintiff may have aggravated his condition; that would be pretty nearly the same as saying that the plaintiff's acts may not have aggravated his condition. It has got to be more than that; you have got to find as an affirmative fact, before you make this allowance, that he did aggravate his condition by his own act. The subject is one that I have not found easy to find definite authority on to satisfy my own mind in the time allowed during this trial, but I am going to give my construction of the law on it. I will put it in three paragraphs, so that if you wish to except to the reading of any, just note your exception.

The case at bar differs from the case last cited in that here the entrant was shown to be outside the jurisdiction of the court. It "First. The plaintiff's acts, to have the effect appears, however, that the testimony of those of striking from your consideration any consefrom whom the entrant received the informa-quences of the injury, must have been voluntarily and knowingly performed, and performed tion which he wrote down was available, and with the knowledge or means of knowledge that that many, if not all, of said persons were such acts would necessarily or probably do him The defendant was material harm. called and testified. therefore able to get the testimony of the original witnesses.

The majority opinion says: "We do not think that the plaintiff's claim in this regard is well founded. The exclusion of the record deprived the defendant of its force as corroborative of the testimony of the other witnesses, the record having been made long prior to the suit and without any reference to the plaintiff's claim."

The defendant had the testimony of the declarants, which was the best evidence, and it is not entitled to corroborate the testimony of said witnesses by showing that they had, when not under oath, made the same statements as when under oath. After a witness had testified, I do not think that another

"Second. If the plaintiff did voluntarily and knowingly, and with the knowledge that such acts would necessarily or probably do him material harm, commit acts which materially ag gravated the effects of his injury, he cannot recaused by his own act; but this does not affect cover for the aggravation to his injuries so defendant's liability for damages caused by its wrongful act, and for the necessary and proximate consequences of that act of the defendant.

"Third. If the plaintiff's injury was aggravated by restlessness or acts done by him which were merely the necessary or proximate consequences of the original injury, you will not, because of such aggravation, lessen the damages required to compensate for the injury done him, but will consider the results of such aggravation as a part of the results of the original inlessness, or any other act beyond the control jury. If it is involuntary, if it is due to restof the plaintiff, or done without consciousness

that it must or probably would hurt him, then it something positive, something declaratory of is to be disregarded."

The only criticism of this instruction by the majority opinion is of the words:

"Now the first thing in that connection, and to my mind one of the most important things for you to decide, is, is it established as an affirmative fact that the plaintiff's acts have caused an aggravation of the injury? I instruct you that, unless you find on the evidence as an affirmative fact that the plaintiff by his acts has caused such injury, then you are to dismiss this claim from your consideration."

And later:

"You have got to find as an affirmative fact before you make this allowance that he did aggravate his condition by his own act."

The majority opinion says:

"We think that the use of this language was unfortunate for the reason that the jury might naturally, and would be likely, to understand therefrom that, without some positive proof that the rebellious acts of the plaintiff caused the failure to obtain the best result, they were to dismiss that subject from their consideration. The word 'affirmative,' as used in that portion of the charge before referred to, describes something positive, something declaratory of what actually exists, something that is a fact."

The word is defined in Webster's New International Dictionary

"2. That affirms; asserting that the fact is so; declaratory of what exists; answering 'yes' to a question-opposed to negative; as an affirmative answer or vote."

The opinion then says:

what actually exists, something that is a fact."

That is an admirable definition of the word as used in the instruction, and its use was entirely proper. The judge did not err in this instruction. The foregoing discussion involves exceptions 11, 18, 19, and 20.

The defendant also excepted to the following portion of the charge of the court: "The case that I want to cite from is Angell v. Lewis: And there the plaintiff's wife was driving a buggy between Fruit Hill and Centerdale. The findings of the court and jury showed that she kept to her right, did not get to meet her, came towards her; the first one beyond the middle; that two wagons came continued to keep to its right and went by safely. The defendant was in the second, and as he came near the plaintiff's buggy he swung to the left to pass the wagon in front of him, and in so doing smashed into the plaintiff's buggy, and it was found and declared that Mrs. Angell, who was driving, could not reasonably do anything to prevent the accident. On that state of affairs the court used expressions that would be applicable to this case if this case happened on the supposition that I have named. And the case I. think is pertinent in other respects. The evidence shows, that the plaintiff's wife complied and that she was in the act of passing them with this requirement on meeting the two teams, 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. "The testimony of the physicians and sur- sustained by the latter while exercising ordinary geons is simply an expression of their opin- care. In other words, one who violates the ion. This opinion is based: First, upon the law of the road by driving on the wrong side asabsence of other conditions which would mil-sumes the risk of such an experiment, and is reitate against a good recovery; and, second, up- quired to use greater care than if he had kept on the probable effect of the movements and be- on the right side of the road, and if a collihavior of the plaintiff. From the very nature of sion took place in such circumstances the prethings it could not be a matter of positive proof, sumption is against the party who is on the but only a matter of opinion. It was something, wrong side-and this: In another case cited by however, which was proper for the jury to con- the Rhode Island court these words are used: sider. It was proper for them to consider it in 'It is legal negligence in any one to occupy the determining whether or not the failure to obtain half of the way appropriated by law to others the best result was to some extent due to the having occasion to use it in traveling with teams unwarranted behavior of the plaintiff himself." and carriages, and he is chargeable for any injury flowing exclusively from that cause. The While it is true that the testimony of the plaintiff's wife had the right to presume that physicians and surgeons is an expression of the driver of any team coming in the oppotheir opinion, such testimony must be based site direction would duly observe the law of the road as she herself was doing, and hence she was upon facts sufficient to justify such opinion, not called upon to exercise that degree of care in order to affirmatively establish that which which devolved upon the defendant when taking such opinion asserts to be true. "The absence the wrong side of the road.' of other conditions which would militate against a good recovery" would be a fact which, taken in connection with movements and behavior of the plaintiff shown by the evidence, would furnish a basis for an opinion by the physicians as to the probable effect of such movements and behavior of the plaintiff. The majority opinion says:

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"Now you will remember the circumstances of was used with reference to the facts, then bethe case in which that language was used. That fore the court, that the plaintiff's wife, Mrs. Angell, was on and had kept on her side of the defendant left his right, drove over on his left road and the collision was caused because the and smashed into the plaintiff's buggy; and it is to be remembered in considering the opinion there, the words of the opinion, that the opinion was used with reference to that state of facts."

The case of Angell v. Lewis, 20 R. I. 391, 39 Atl. 521, 78 Am. St. Rep. 881, has never been overruled, doubted, or distinguished in any way to diminish its authority. The doctrine therein laid down that one who violates the law of the road by driving on the wrong side assumes the risk of such experiment, and is required to use greater care than if he had kept on the right side of the road, and if a

approaching with a desire to pass him with a vehicle, the driver had the right to use any part of the street, not occupied by another; yet when he turned abruptly on Seventeenth street in the manner shown by the testimony, he was taking the chance of a collision with other travelers going north on that street, whose rights at that place were superior to his."

collision took place in such circumstances the | on the east side of the street. When no one was presumption is against the party who is on the wrong side of the road, and that quoted from the case therein cited, "It is legal negligence in any one 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," have been consistently followed in this state. Angell v. Lewis was cited in Winter v. Harris, 23 R. I. 47, 49 Atl. 398, 54 L. R. A. 643, in which case the court says:

"The plaintiff showed no sufficient cause or excuse for being on the wrong side of the road at the time of the accident, and the injuries she complained of were attributable mainly, if not wholly, to her own failure to exercise due care; hence, under the circumstances of this case, we find no error in the charge of the justice, to which exception was taken."

Also in Pick v. Thurston, 25 R. I. 36, 54 Atl. 600, where the court said:

"As the plaintiff in the case at bar was violating the law of the road,' she must show some sufficient cause or excuse for being on the wrong side to enable her to attribute negligence to the defendant."

Many cases in other jurisdictions are in

accord.

In Louis Perlstein v. American Express Co., 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959, the court, Knowlton, J., said:

"The plaintiff introduced testimony that he himself was driving on the right-hand side of Harrison avenue, close to the sidewalk, and it tended to show that he was in the exercise of due care. The driver of the other team was driving 'very fast' in the opposite direction, and collided with the plaintiff. This was evidence that he was acting in violation of the statute, which requires persons meeting each other as these persons were to drive to the right of the middle of the traveled part' of the road, and unexplained it indicated negligence. Reynolds v. Hanrahan, 100 Mass. 313; Young v. South Boston Ice Co., 150 Mass. 527 [23 N. E. 326]; Randolph v. O'Riordon, 155 Mass. 331 [29 N. E. 583]."

"One who violates the law of the road by driving on the wrong side of the way assumes the risk of all such experiments, and must use greater care than if he keeps upon the right side of the road. If a collision takes place, the presumption is generally against the party on the

In Brember v. Jones (1893) 67 N. H. 374, 30 wrong side." Elliott, Roads and Streets, § 1082. Atl. 411, 26 L. R. A. 408, the court says:

"Ordinarily, if one traveler, in meeting another, be found upon the half of the way appointed to him by the statute, traveling with ordinary care and prudence, and he sustain an injury by a collision with the vehicle of another, who is upon that part of the way to which he has not the statutory right, the individual who has thus sustained the injury may have redress by action against him who was thus on the part of the way to which the statute did not give him the right. The traveler who thus travels prudently and carefully upon the half of the way assigned to him will ordinarily pass at the hazard and risk of him who trenches upon his rights in the manner already stated.

*

In the charge it does not clearly appear whether the judge read from Angell v. Lewis or not. In his statement of the facts, he does not follow the language literally, while he does so in substance. The instructions in matters of law are given as in the report of said case. I see no reason for criticism in his use of said case in the charge, and in my opinion there was no error in such use. As to the suggestion in the majority opinion that the language of Angell v. Lewis must be considered in connection with the facts of *that case in order to get at its intended meaning, the case is not peculiar in that regard. No two cases are exactly alike in all their circumstances. The fact, however, that the collision in that case occurred between 5 and 6 o'clock p. m. on January 3, 1897, while that in this case occurred about 6 o'clock in the afternoon on June 14, 1912, or the fact that in that case the defendant admitted that "The general rule seems to be that, where a when he pulled out to pass the teams ahead collision occurs between the horse or vehicle of of him he was not thinking that some one a person on the wrong side of the road and that might be coming towards him on the other of a person coming towards him, the presumption is that it was caused by the negligence of side of the road, while in this case the dethe person who was on the wrong side of the fendant's servant sounded his horn, shifted road, but that his presence on that side may be his speed from first to second, and startexplained and justified. 2 Shearm. & Redf. Neged to pass on the left of the wagon in § 650; Elliott, Roads and Streets (3d Ed.) § 1082."

It is legal negligence in any one thus 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.'

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In Riepe v. Elting (1893) 89 Iowa, 82, 56 N. W. 285, 26 L. R. A. 769, 48 Am. St. Rep. 356, the court said:

In Foote v. American Product Co. (1900) 195 Pa. 190, 45 Atl. 934, 49 L. R. A. 764, 78 Am. St. Rep. 806, the court said:

"In passing north along the east side of Seventeenth street, the boy was where he had a right to be and where, if traveling on the street in that direction, the law of the road, as well as the city ordinance, required him to be. When the collision occurred the driver was turning his wagon around the southeast corner of Spruce and Seventeenth streets, and the plaintiffs claim that it was with the intention of going south

front of him, and while thus attempting to pass the team in front a collision took place between the truck and the plaintiff who was riding a bicycle in the opposite direction, constitute such differences in the facts of the two cases as render the law of the former case inapplicable to the case at bar.

The law of the road is now given in Gen. Laws, 1909, sections 1 and 2, as follows:

"Section 1. Every person traveling with any carriage or other vehicle, who shall meet any other person so traveling on any highway or

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