9

.

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

plaintiff." “You are instructed that in arriving at a We do not see any error in charging the verdict in this case you are to act just as if jury in accordance with this request, nor do the case had been brought against the defendant's employé, Alexander J. Lodge, instead of we see any error in the refusal of the trial the defendant company, and you should not find court to grant a new trial; the latter being a verdict against the defendant, the Revere covered by the defendant's exception numberRubber Company, unless you would have found ed 21. a verdict against Alexander J. Lodge if the case had been brought against him.”

The defendant's exceptions 1, 2, 4, 5, 6, 7, 8,

9, 10, 12, 17, and 21 are overruled. The deWhile this language might have been used fendant's exceptions 3, 11, 13, 14, 15, 16, 18, with propriety in the course of argument, it 19, and 20 are sustained, and the case is redoes not seem to us that it was of any par-mitted to the superior court for a new trial. ticular importance as an instruction to the jury. The defendant's twelfth exception is to a

JOHNSON, C. J. (dissenting). I am unportion of the charge to the effect that the able to agree entirely with the opinion of the last half of section 1, c. 87, Gen. Laws 1909, majority of the court. By said opinion all in no respect changes the rights or duties of the defendant's exceptions are overruled exthe automobile about to pass a team in re- cept its exceptions numbered 3, 11, 13, 14, 15, gard to vehicles going the other way. It is 16, 18, 19, and 20, which are thereby sus

, not altogether clear as to what the trial court tained. I dissent only as to the exceptions had in mind in giving this instruction. The sustained. section of the statute referred to deals with The third exception is to the exclusion of two situations: (1) When parties proceeding the record of the Rhode Island Hospital. in different directions approach each other; Upon the subject of said record prior to the and (2) when one vehicle desires to pass an offer thereof in evidence, Dr. McAlilay testiother going in the same direction. As we fied that in June, 1912, Dr. Johnson was have before substantially said, a person at- house surgeon. Dr. Peet was the second, and tempting to pass a vehicle ahead of him and the witness the third, man in the service. going in the same direction must exercise He said: proper care in so doing. If a vehicle is ap- “Well, the last six weeks of every service, proaching from the opposite direction at the that is of every houseman's term, which is three moment when he desires to pass the vehicle months, his junior writes the continued notes; in front, and the highway is not wide enough the first six weeks of his own service the house

surgeon writes them himself." to safely accommodate

accommodate all three teams abreast, then it would be the duty of the per

He testified that this was Dr. Peet's duty son in charge of the rear vehicle, in the exer- during the early part of the period when the cise of proper care under the circumstances, plaintiff was at the hospital; that Dr. Peet to wait until the vehicle coming in the oppo- was then the junior house surgeon; that the site direction had passed by before he at- records were in Dr. Peet's handwriting from tempted to turn out. It is not necessary to June 15th to August 15th; that Dr. Peet was involve the question as to the duty of the at Philadelphia, at the time of the trial. The vehicle in the rear, in passing, towards an- question was then asked: other vehicle that may be approaching in an

“How are these records made up; what is opposite direction. The approach of the ve

the custom and rule of the hospital with refhicle in the opposite direction is simply one tor?" A. "The man who has charge of writing

erence to the making up of the records, Docof the circumstances which must be consider the names on the case is supposed to make notes ed by the rear man when he attempts to on that case every three days, that is, the impass. It is simply one of the things which portant things that have happened in the case,

every three days and oftener if necessary." demands the exercise of care upon his part under all circumstances, and in some circum- The question is then asked: stances he would be required to refrain from "And then those notes are incorporated into attempting to pass until the approaching ve- the hospital record ?” A. “Yes, sir." Q. “Are hicle had gone by.

those notes which he makes every three days in

the usual course of his duty based upon his own [11] The defendant's seventeenth exception observation or upon the observation of himself is based upon the charge of the court as re- and others ?” quested by the plaintiff in his fifth request.

The witness: "I served three months as senior This request is as follows:

man on the nose and throat service, and I had

to make records every three days. I served “If you find that at the time of the accident nearly three months as house physician, and I the plaintiff was riding upon Point street on his had to make notes every three days on every right side of the highway, and was in the exer- patient." cise of ordinary care, and the driver of the The Court: “Is your answer complete ?" auto truck of the defendant company suddenly Witness: "No. I said that you made the drove his truck to the left side of the highway notes from your own observation and the obin an effort to pass a team in front of him, and servation of your visiting man on the rounds, the plaintiff was unable to get out of the way of and I said that was my experience, and my exthe auto truck owing to the suddenness of de- perience is the custom of the hospital; that is, it fendant's approach in front of him, by the ex- is the custom there for every man to do the crcise of ordinary care, then the defendant com- same thing.”

The record was then offered. It was ruled And in section 1424: out, and defendant's exception noted.

The hearsay rule is merely an additional test This record was offered for the purpose of or safeguard to be applied to testimonial evi

dence otherwise admissible. The admission of showing unruly behavior on the part of the hearsay statements by way of exception to the plaintiff and his disobedience of the orders rule therefore presupposes that the assertor posof the surgeons and nurses as to keeping sessed the qualifications of a witness in regard quiet and refraining from movements which to knowledge and the like. These qualifications

are fundamental as rules of relevancy, and can would be likely to interfere with the proper never be dispensed with. Thus these extrajudiadjustment and knitting together of the frac- cial statements may be inadmissible because of tured bone. It also appears in evidence that their failure to fulfill the ordinary rules about some, if not all, of those who reported the qualifications, even though they meet the re

quirements of a hearsay exception.” plaintiff's condition and actions from time to "Personal knowledge of entrant; entries by time were called as witnesses at the trial, bookkeeper, etc., on report of salesman, team

(1) There can be no doubt that the and that therefore, as the plaintiff claims, ster, etc.

general principle of testimonial evidence (ante, the exclusion of the record did not in effect section 657) should apply here as elsewhere, deprive the defendant of any useful or im- namely, that the person whose statement is reportant testimony.

ceived as testimony should speak from personal

observation or knowledge. This principle has The objections of the plaintiff to the ad- often been invoked in excluding entries made by mission of the record made by Dr. Peet, as persons who had no personal knowledge of the set forth in his brief, are: (1) That there is supposed facts recorded. 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 trans

Ante, 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 knowl

"So far as respects the admissibility of the edge of the person recording them ; and records of the Carney Hospital under St. 1905, (6) that facts reported by others to Dr. Peet c. 330, the same rule applies because these recand by him recorded were capable of proof defendant insists, however, that the records of

ords also were made before it was passed. The by those who reported them, and who were, this hospital are admissible under the common or might have been, called as witnesses on law. While it is true that the records were not behalf of the defendant. It appears from made in accordance with a requirement of law, the evidence that some of the facts recorded meaning of the rule that legal records or copies

and therefore were not legal records within the by Dr. Peet were not within his personal thereof are generally admissible, still it appears knowledge, and the plaintiff claims that, it that they were made in the usual course of busibeing impossible to separate the facts therein ness by a person in the discharge of a duty, who

appears not only as the maker of them, but as due to such personal knowledge from those their custodian. If she had died and her handreceived by reports from others, the record writing had been proved, in the absence of any as a whole must be excluded.

other testimony as to the manner in which they Upon the question of knowledge on the As in the case of Townsend v. Pepperell, 99

were made up, they would have been admissible. part of the witness, it is said in section 657 Mass. 40, it would have been assumed that the of Wigmore on Evidence:

records were of facts known to her. The rule “Knowledge must be founded on personal ob- entries must be made by a person having per

applicable to such records ordinarily is that the servation by the senses, not on hearsay. The sonal knowledge of the truthfulness of the statefirst corollary from the general principle of ments. This test has been applied by this court knowledge is that what the witness represents in the case of shop books offered to prove deas his knowledge must be an impression derived livery of goods, and it has been held that where from the exercise of his own senses, not from the clerk who made the entries had no knowlthe reports of others; in other words, must be edge of the facts, the entries are not admissible, founded on personal observation. This general although the

clerk testified that he correctly put rule, to which contrary instances can be only down the information he received from the percasual exceptions, has long been recognized as

son by whom the delivery was said to be made. fundamental. Upon this principle, the testimony of one claiming to have knowledge has applied with the same strictness to other mem

* It is true that this rule has not been constantly been rejected, when it appeared that oranda. But in substance the general principle he had lacked personal observation.'

is the same. In the leading case of Welsh v. Among the exceptional cases under this Barrett, 15 Mass. 380, 386, in which a bank's principle when knowledge founded on hear- tice made by him in the course of his duty was

messenger's memorandum of a demand and nosay may suffice is that of testimony of deceas-admitted upon proof of his handwriting, he beed or absent persons under the hearsay ex- ing dead, the principle was stated in these words: ception. Upon this, Mr. Wigmore says, in 'What a man has said when not under oath

may not, in general, be given in evidence when section 670:

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 wellknown exceptions to this rule, as in questions, witness would be permitted to corroborate his concerning pedigree. But what a man has actu- testimony by saying that the witness had ally done and committed to writing, when under obligation to do the act, it being in the course of previously made the same statement to him. the business he has undertaken, and he being Further, the judge, on the evidence submitdead, there seems to be no danger in submitting ted preparatory to the offer of the record to the consideration of the jury.' And the rule kept by the junior house surgeon, may prophas been adhered to quite generally except where in the course of the business the clerk erly have found that the record was impermaking the entry receives his information ei- fect or not properly kept. Upon such a findther orally or in writing from various persons ing it would be properly excluded. In my whom he cannot expect to remember, and whom it will be impracticable to call. To apply the opinion there was no error in the exclusion rule in such a case, and to require the evidence of the record offered. of every person in the long line of persons who The defendant alleges error in the charge have had anything to do with the transaction re- to the jury with reference to the conduct of corded, would be practically impossible, and so the plaintiff in the hospital. as a practical necessity the record is admitted

The defendant upon the oath of the recorder, if alive, or upon requested the court to charge the jury upon proof of handwriting if he be dead. It is prob- this point as follows: able that this exception has been carried farther elsewhere than in this state. For a general dis- for the natural consequences resulting from

"If defendant is liable in this case it is only cussion of the subject, see Wigmore on Evidence, $ 1530, and cases cited in the notes. In the collision. If the plaintiff unreasonably disour own state this exception seems to have been obeyed the orders of the physicians or nurses recognized in Briggs v. Rafferty, 14 Gray

in the hospital with regard to keeping quiet, (Mass.) 525; Adams v. Coulliard,' 102 Mass. and this failure produced more serious injury

than would otherwise have resulted from the 167.

"In the present case the records were produc- accident, the defendant is not responsible to ed by the witness Gabagan. It appeared that the plaintiff for this aggravation of his inju

. the records were made by her, and that she was the proper custodian of them. But it further

This request was refused, the court chargappeared that she never had any personal knowledge of the facts stated therein; that she ing the jury as follows: received slips of paper from Dr. Painter, the

"Now the first thing in that connection, and physician, and copied them into the record; to my mind one of the most important things and that was all she knew about them. The for you to decide, is, is it established as an record was offered as evidence to show that the affirmative fact that the plaintiff's acts have statements therein made were true. As hand- caused an aggravation of the injury? I instruct ed to the witness by the physician, they were you that, unless you find on the evidence as an simply statements of the physician as to what affirmative fact that the plaintiff by his acts has the patient had said to him, or as to the diag- caused such aggravation of the injury, then you nosis made by the physician. The records were are to dismiss this claim from your consideracomparatively recent. It was not shown that tion. It is not enough to decide that the plainthe physician was not living and within the ju- tiff may have aggravated his condition; that risdiction of the court. No necessity was shown, would be pretty nearly the same as saying that therefore, for the introduction of this hearsay the plaintiff's acts may not have aggravated his testimony. For aught that appeared there was condition. It has got to be more than that; better evidence. Under these circumstances the you have got to find as an affirmative fact, reason upon which the general rule was based. before you make this allowance, that he did agnamely, that the record should be a record of gravate his condition by his own act. The subfacts of which the writer had personal knowl- ject is one that I have not found easy to find edge, should be applied. The case is not with- definite authority on to satisfy my own mind in in the above-mentioned exception to the gen- the time allowed during this trial, but I am eral rule."

going to give my construction of the law on it. The case at bar differs from the case last I will put it in three paragraphs, so that if

you wish to except to the reading of any, cited in that here the entrant was shown to just note your exception. 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 volunta

rily 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 called and testified. The defendant was

material harm. therefore able to get the testimony of the knowingly, and with the knowledge that such

"Second. If the plaintiff did voluntarily and original witnesses.

acts would necessarily or probably do him maThe majority opinion says:

terial harm, commit acts which materially ago "We do not think that the plaintiff's claim gravated the effects of his injury, he cannot rein this regard is well founded. The exclusion of caused by his own act; but this does not affect

cover for the aggravation to his injuries so the record deprived the defendant of its force defendant's liability for damages caused by its as corroborative of the testimony of the oth- wrongful act, and for the necessary and proxer witnesses, the record having been made long imate consequences of that act of the defendant. prior to the suit and without any reference to

“Third. If the plaintiff's injury was aggrathe plaintiff's claim."

vated by restlessness or acts done by him which The defendant had the testimony of the were merely the necessary or proximate consedeclarants, which was the best evidence, and quences of the original injury, you will not, beit is not entitled to corroborate the testimony required to compensate for the injury done him,

cause of such aggravation, lessen the damages of said witnesses by showing that they had, but will consider the results of such aggravawhen not under oath, made the same state- tion as a part of the results of the original inments as when under oath. After a witness lessness, or any other act beyond the control

jury. If it is involuntary, if it is due to resthad testified, I do not think that another of the plaintiff, or done without consciousness

In

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

what actually exists, something that is a fact." The only criticism of this instruction by That is an admirable definition of the the majority opinion is of the words:

word as used in the instruction, and its use "Now the first thing in that connection, and was entirely proper. The judge did not err to my mind one of the most important things for in this instruction. The foregoing discussion you to decide, is, is it established as an affirma

, tive fact that the plaintiff's acts have caused an involves exceptions 11, 18, 19, and 20. aggravation of the injury? I instruct you that, The defendant also excepted to the followunless you find on the evidence as an affirma- ing portion of the charge of the court: tive fact that the plaintiff by his acts has caus

"The case that I want to cite from is Aned such injury, then you are to dismiss this gell v. Lewis: And there the plaintiff's wife claim from your consideration."

was driving a buggy between Fruit Hill and And later:

Centerdale. The findings of the court and jury "You have got to find as an affirmative fact showed that she kept to her right, did not get before you make this allowance that he did ag- beyond the middle; that two wagons came gravate his condition by his own act."

to meet her, came towards her; the first one

continued to keep to its right and went by safeThe majority opinion says:

ly. The defendant was in the second, and as he “We think that the use of this language was came near the plaintiff's buggy he swung to the unfortunate for the reason that the jury might left to pass the wagon in front of him, and in so naturally, and would be likely, to understand doing smashed into the plaintiff's buggy, and it therefrom that, without some positive proof that was found and declared that Mrs. Angell, who the rebellious acts of the plaintiff caused the was driving, could not reasonably do anything failure to obtain the best result, they were to to prevent the accident. On that state of affairs dismiss that subject from their consideration. the court used expressions that would be apThe word 'affirmative,' as used in that portion plicable to this case if this case happened on the of the charge before referred to, describes some supposition that I have named. And the case I . thing positive, something declaratory of what think is pertinent in other respects. The eviactually exists, something that is a fact." dence shows, that the plaintiff's wife complied The word is defined in Webster's New In- and that she was in the act of passing them

with this requirement on meeting the two teams, ternational Dictionary,

safely when the defendant suddenly pulled his "2. That affirms; asserting that the fact is team to the left and collided with hers. so; declaratory of what exists; answering thus taking the wrong side of the road the de'yes' to a question-opposed to negative; as an fendant took the risk of the consequences which affirmative answer or vote."

might arise from his inability to get out of the

way of another team approaching on the right The opinion then says:

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 inWhile it is true that the testimony of the plaintiff's wife had the right to presume that

jury flowing exclusively from that cause. The 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 upon facts sufficient to justify such opinion, not called upon to exercise that degree of care

road as she herself was doing, and hence she was 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 the case in which that language was used. That

"Now you will remember the circumstances of against a good recovery” would be a fact was used with reference to the facts, then bewhich, taken in connection with movements fore the court, that the plaintiff's wife, Mrs. and behavior of the plaintiff shown by the Angell, was on and had kept on her side of the evidence, would furnish a basis for an opin- road and the collision was caused because the ion by the physicians as to the probable effect and smashed into the plaintiff's buggy; and it

defendant left his right, drove over on his left of such movements and behavior of the plain- is to be remembered in considering the opinion tiff. The majority opinion says:

there, the words of the opinion, that the opin"From the nature of things it could not be a

ion was used with reference to that state of

facts.” matter of positive proof but only a matter of opinion.”

The case of Angell v. Lewis, 20 R. I. 391, While the testimony of the physician would 39 Atl. 521, 78 Am. St. Rep. 881, has never consist in the statement of his opinion, in- been overruled, doubted, or distinguished in cluding the grounds thereof, what is to be any way to diminish its authority. The docestablished as the result of the proof is not trine therein laid down that one who violates an opinion but a fact. As the majority opin- the law of the road by driving on the wrong ion says:

side assumes the risk of such experiment, and "The word 'affirmative,' as used in that por- is required to use greater care than if he had tion of the charge before referred to, describes kept on the right side of the road, and if a

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 approaching with a desire to pass him with a vethe wrong side of the road, and that quoted of the street,

not occupied by another; yet when

hicle, the driver had the right to use any part from the case therein cited, "It is legal neg- he turned abruptly on Seventeenth street in ligence in any one to occupy the half of the the manner shown by the testimony, he was takway appropriated by law to others having ing the chance of a collision with other travelers occasion to use it in traveling with teams and going north on that street, whose rights at that

place were superior to his." carriages, and he is chargeable for any in

In Louis Perlstein v. American Express Co., jury flowing exclusively from that cause," 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959, have been consistently followed in this state. the court, Knowlton, J., said: Angell v. Lewis was cited in Winter v. Har

“The plaintiff introduced testimony that he ris, 23 R. I. 47, 49 Atl. 398, 54 L. R. A. 643, himself was driving on the right-hand side of in whichi case the court says:

Harrison avenue, close to the sidewalk, and it “The plaintiff showed no sufficient cause or ex- tended to show that he was in the exercise of

due care. cuse for being on the wrong side of the road at

The driver of the other team was the time of the accident, and the injuries she driving 'very fast in the

opposite direction, and complained of were attributable mainly, if not collided with the plaintiff. This was evidence wholly, to her own failure to exercise due care; that he was acting in violation of the statute, hence, under the circumstances of this case, we which requires persons meeting each other as find no error in the charge of the justice, to these persons were to drive to the right of the which exception was taken.”

middle of the traveled part of the road, and

unexplained it indicated negligence. Reynolds Also in Pick v. Thurston, 25 R. I. 36, 54 v. Hanrahan, 100 Mass. 313; Young v. South Atl. 600, where the court said:

Boston Ice Co., 150 Mass. 527 [23 N. E. 326]; "As the plaintiff in the case at bar was vio- Randolph v. O’Riordon, 155 Mass. 331 [29 N. lating the 'law of the road,' she must show some E. 583].” sufficient cause or excuse for being on the wrong

"One who violates the law of the road by drivside to enable her to attribute negligence to the ing on the wrong side of the way assumes the defendant."

risk of all such experiments, and must use greatMany cases in other jurisdictions are in er care than if he keeps upon the right side of

the road. If a collision takes place, the preaccord.

sumption 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:

In the charge it does not clearly appear "Ordinarily, if one traveler, in meeting anoth- whether the judge read from Angell v. Lewis er, be found upon the half of the way appoint- or not. In his statement of the facts, he does ed to him by the statute, traveling with ordinary care and prudence, and he sustain an in- not follow the language literally, while he jury by a collision with the vehicle of another, does so in substance. The instructions in who is upon that part of the way to which he matters of law are given as in the report of has not the statutory right, the individual who said case. I see no reason for criticism in has thus sustained the injury may have redress by action against him who was thus on the his use of said case in the charge, and in my part of the way to which the statute did not give opinion there was no error in such use. As him the right. The traveler who thus travels to the suggestion in the majority opinion prudently and carefully upon the half of the way that the language of Angell v. Lewis must be assigned to him will ordinarily pass at the hazard and risk of him who trenches upon his considered in connection with the facts of rights in the manner already stated. * * that case in order to get at its intended meanIt is legal negligence in any one thus to occupy ing, the case is not peculiar in that regard. the half of the way appropriated by law to No two cases are exactly alike in all their others having occasion to use it in traveling with teams and carriages, and he is chargeable circumstances. The fact, however, that the for any injury flowing exclusively from that collision in that case occurred between 5 and cause.

6 o'clock p. m. on January 3, 1897, while In Riepe v. Elting (1893) 89 Iowa, 82, 56 that in this case occurred about 6 o'clock in N. W. 285, 26 L. R. A. 769, 48 Am. St. Rep. the afternoon on June 14, 1912, or the fact 356, the court said:

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. Neg. § 650; Elliott, Roads and Streets (3d Ed.) Šed to pass on the left of the wagon in 1082

front of him, and while thus attempting to In Foote v. American Product Co. (1900) pass the team in front a collision took place 195 Pa. 190, 45 Atl. 934, 49 L. R. A. 764, 78 between the truck and the plaintiff who was Am. St. Rep. 806, the court said:

riding a bicycle in the opposite direction, con"In passing north along the east side of Sev-stitute such differences in the facts of the enteenth street, the boy was where he had a two cases as render the law of the former right to be and where, if traveling on the street case inapplicable to the case at bar. in that direction, the law of the road, as well

The law of the road is now given in Gen. as the city ordinance, required him to be. When the collision occurred the driver was turning his Laws, 1909, sections 1 and 2, as follows: wagon around the southeast corner of Spruce “Section 1. Every person traveling with any and Seventeenth streets, and the plaintiffs claim carriage or other vehicle, who shall meet any that it was with the intention of going south other person so traveling on any highway or

*