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and indicate wherein they in our judgment | declaring without qualification that the Synare distinguishable from the case at bar. dicate Company was not doing business. In
Zonne v. Minneapolis Syndicate Co., 220 this case, as reported, it appears that counsel U. S. 187, 31 Sup. Ct. 361, 55 L. Ed. 428, for the defendant urged that the debates in was heard with the above-mentioned corpo-Congress as well as the affirmative action of ration cases and decided the same day. Mr. that body show that holding companies were Justice Day wrote the opinion in both the entitled to be excluded from the operation Flint and the Zonne Cases. The court says: of the corporation tax law. The court does
“The case presents a peculiarity of corporate not expressly find that holding companies organization and purpose not involved in the are not taxable. But if the decision were to case just decided. The Minneapolis Syndicate, be so interpreted, it clearly would not be as the allegations of the bill, admitted by the demurrer, show, was originally organized for a precedent in the present case inasmuch as and engaged in the business of letting stores and our statute, as already shown, clearly indioffices in a building owned by it, and collect-cates a legislative intent to tax such coming and receiving rents therefor. On the 27th of December, 1906, the corperation demised and panies. The case cited, for these reasons let all of the tracts, lots, and parcels of land be- is distinguishable from the present one. longing to it, *
for the term of 130 In McCoach v. Minehill Railway Co., 228 years from January 1, 1907, at an annual rent; U. S. 295, 33 Sup. Ct. 419, 57 L. Ed. 842, the al of $61,000, to be paid by said lessees to said corporation. At that time the corporation caus- facts are substantially these: The Minehill ed its articles of incorporation, which had there- Company was incorporated in 1828 for the tofore been those of a corporation organized for purpose of conducting and operating a railprofit, to be so amended as to read; "The sole purpose of the corporation shall be to hold the road. It built a railroad and operated it for title to the westerly one-half of block 87 of the many years. In 1896 it leased its entire railtown of Minneapolis, now vested in the cor- road and all of its property of every descripporation, subject to a lease thereof for a term tion in use or adapted for use in, upon, or of 130 years from January 1, 1907, and, for the convenience of its stockholders, to receive, and about the railroad, and also "all the rights, to distribute among them, from time to time, powers, franchises (other than the franchise the rentals that accrue under said lease, and the of being a corporation), and privileges which proceeds of any disposition of said land.' * * * The corporation involved in the pres- may now, or at any time hereafter during the ent case, as originally organized and owning time hereby demised, be lawfully exercised and renting an office building, was doing busi- or enjoyed in or about the use, management, ness within the meaning of the statute as we maintenance, renewal, extension, alteration, have construed it. Upon the record now presented we are of opinion that the Minneapolis or improvement of the demised premises Syndicate, after the demise of the property and or any of them" to the Philadelphia & Readreorganization of the corporation, was not en- ing Railway Company, for a term of 999 gaged in doing business within the meaning of the act. It had wholly parted with control and years from January 1, 1897, at a yearly rentmanagement of the property; its sole author-al of $252,612; that being equivalent to 6 ity was to hold the title subject to the lease for per cent. upon the capital stock of the Mine 130 years, to receive and distribute the rent-hill Company. Thereupon the railroad and als which might accrue under the terms of the lease, or the proceeds of any sale of the land if its property were turned over to the Reading it should be sold. The corporation had prac- Company, which has since operated it, and tically gone out of business in connection with the Minehill Company has not carried on any the property and had disqualified itself by the terms of reorganization from any activity in business in connection with its operation. respect to it. We are of opinion that the cor- The Minehill Company maintains its corpoporation was not doing business in such wise as rate existence and organization by electing to make it subject to the tax imposed by the act officers annually. It receives said yearly of 1909."
rental and interest on its bank deposits and The wholly parting with the control and maintains a contingent fund from which it management of the property and disqualifi- receives annual sums as interest or divication of itself by the terms of reorganization dends. It pays the necessary expenses incifrom any activity in respect to it are stated dent to maintaining its offices and corporate as the significant facts and reasons for find- existence including salaries of officers and ing that the corporation had practically clerks. It keeps stock books for the transfer gone out of business in connection with the of its stock, which is bought and sold upon property. Such facts do not exist in the the market. The annual income from the case at bar. The traction company has in no contingent fund is about $24,000, and the anparticular parted with the control and man- nual payments for state tax about as much, agement of its property, nor has it in any and its expenditures. for corporate mainterespect disqualified itself from exercising any nance about $5,000. On page 303 of 228 U. of its powers or activities relative thereto, S., on page 422 of 33 Sup. Ct. (57 L. Ed. 842), or any of its other powers. The Zonne Case the court says: does clearly imply that the mere holding of
"The precise question presented by the present the title to the real estate and receiving record is whether the Minehill Company is 'doand distributing the rentals under the lease ing business' in the sense in which the realty are not doing business within the meaning companies concerned in Flint v. Stone Tracy
U. of the corporation tax act, although the Ed.' 389, Ann. Cas. 1912B, 1312), were doing court is apparently careful to refrain from business, or had gone out of business in sub
stantially the same sense that the Minneapolis from its investments, on the authority of the Syndicate had done so. From the facts as stat. Pollock Case, 157 U. S. 429, 15 Sup. Ct. 673, ed above it is entirely clear that the Minehill Company was not, during the years of 1909 and 39 L. Ed. 759 (the Income Tax Case), would 1910, engaged at all in the business of main- in effect be a direct tax upon property imtaining or operating a railroad, which was the posed thereon solely by reason of its ownerprime object of its incorporation. This busi- ship and therefore invalid because not apness, by the lease of 1896, it had turned over to the Reading Company. If that lease had portioned according to population; and, been made without authorization of law, it third, that the collection and distribution of may be that for some purposes, and possibly for rentals and income to stockholders, and the the present purpose, the lessee might be deemed other activities of the Minehill Company as
; lessor held estopped to deny such agency. But described, were not carrying on business the lease was made by the express authority within the meaning of the Corporation Tax of the state that created the Minehill Com- Act, such activities being incidental to the pany, conferred upon it its franchise, and imposed upon it the correlative public duties. The ownership of property merely. effect of this legislation and of the lease made The principal point in this decision is based thereunder was to constitute the Reading Com- on the fact that the Minehill Company was pany the public agent for the operation of the not transacting the business for which it railroad and to prevent the Minehill Company from carrying on business in respect of the was incorporated, although that it was domaintenance and operation of the railroad so ing business is not denied, but expressly conlong as the lease shall continue. And it is the ceded. As to this point the decision does not Reading Company, and not the Minehill Company, that is doing business' as a railroad com: apply to the case at bar, as the traction company upon the lines covered by the lease and is pany is doing what it was incorporated to taxable because of it. The Corporation Tax do. Neither is the distinction between a tax Law does not contemplate double taxation in on business and property of importance here, respect of the same business.
* * We conclude that the Minehill Company was not tax- as the tax under the state Tax Act is exable with respect to the railroad business." pressly a tax on property. If the reference And the court further 'says:
to the collection and distribution of income "In our opinion the mere receipt of income arising from investments and from the rental from the property leased (the property being of the Minehill property, etc., as not constiused in business by the lessee and not by the tuting carrying on business under the act, lessor) and the receipt of interest and dividends from invested funds, bank balances, and the like. contains the implication that the Minehill and the distribution thereof among the stock Company had become in effect a holding comholders of the Minehill Company, amount to no pany and as such not taxable, what we have more than receiving the ordinary fruits that already said as to the scope of our own act arise from the ownership of property. The ground of the decision in the Pollock Case in this particular distinguishes the case at was that a tax upon income received from real bar from the Minehill Case. But in view of estate and invested personal property (as dis- the decision as to the realty companies in tinguished from income received from the trans- the Flint Case it is at least questionable if action of business) was in effect a direct tax upon the property itself, and therefore invalid such implication was intended in the Minehill unless apportioned according to the population.” Case. The Supreme Court up to the present
And on page 308 of 228 U. S., on page 424 time has apparently carefully refrained from of 33 Sup. Ct. (57 L. Ed. 842), after discuss- declaring a holding company not taxable. ing the section of the Corporation Tax Act
Three of the court dissented in the Mineproviding for the including of income from hill Case on the ground that it was carrying nontaxable property in order to ascertain the on business and Mr. Justice Day wrote the measure of the tax, the court says:
dissenting opinion. We make extracts there“The distinction is between (a) the receipt from because they are suggestive and pertiof income from outside property or investments nent in some particulars in giving interpretaby a company that is otherwise engaged in busi- tion to our own tax act and are in general ness, in which event the investment income may be added to the business income in order harmony with the views we have already to arrive at the measure of the tax; and (b) expressed. Among other things, he says: the receipt of income from property or invest- “The amount of business done is utterly imments by a company that is not engaged in material. The doing of any business with the business except the business of owning the prop- advantages which inhere in corporate organizaerty, maintaining the investments, collecting the tion brings the corporation within the terms of income, and dividing it among its stockholders. the act. Such was the ruling in the Flint Case In the former case the tax is payable; in the after full consideration by this court of the latter not. And so, upon the whole, we think terms and scope of the law. It is said, howthe court below correctly held that the present ever, that this case is controlled by the ruling case is governed by Zonne v. Minneapolis Syn- in the Zonne Case. * * It seems to me dicate, 220 U. S. 187 [31 Sup. Ct. 361, 55 L. that the present case is quite unlike that one. Ed. 428], and that the taxes under considera
In the present case the corporation tion were unlawfully imposed."
has not disqualified itself from business activity. If we interpret this opinion aright, it It maintains a considerable force in active emamounts (speaking broadly) to this: First, from the railroad lease, so deposits and invests
ployment and, entirely apart from the receipts that the Minehill Company was not taxable its funds as to create, in these days of low inwith respect to the railroad business for terest upon good investments, an annual inwhich it was incorporated, inasmuch as it come of over $24,000, as appears by its return. had transacted no such business; second, upon the exercise of judgment and the efficiency
The amount derived from investments depends that a tax upon its income of $24,000, arising of management.
If business includes every
thing that occupies the time, attention, and la- carrying on business for profit within this bor of men for profit, it seems to me that these state in 1912 within the meaning of the facts show that the Minehill Company is carry: Tax Act of 1912; that it was liable to taxaing on business in the present instance. I think the present case is much nearer the rul- tion under the provisions of sections 9 to 20 ing made by this court in the Corporation Tax of said act; and that the petitioner as a Cases in the matter of the really companies holder of the shares of the capital stock of therein involved. Take, for instance, the Park_ Realty Company. That corporation was organ- said traction company was exempt from taxaized to work, develop, sell, and convey real es- tion in this state thereon. tate; to lease, exchange, hire, or otherwise ac- The exception of the petitioner is sustainquire property; to erect, alter, or improve ed;. the decision of the court below is rebuildings; to conduct, operate, manage, or lease hotels, etc. It appeared that at the time versed, and the case is remitted to the suof the imposition of the tax the sole business perior court, with direction to enter judgor property owned by the realty company was ment for the petitioner for $148.05 with inthe Hotel Leonori. It was leased for 21 years terest thereon from October 18, 1912. at an annual rental of $55,000. The corporation was engaged in no business, except the management and lease of that hotel property, and was in receipt of no other income than that
(37 R. I. 189) derived from its rental, and has no assets other RIBAS V. REVERE RUBBER CO. than that property and the income thereof. It
(No. 4682.) was held to be doing business within the meaning of the act.”
(Supreme Court of Rhode Island. July 10,
1914.) State v. Anniston Rolling Mills, 125 Ala. 1. EVIDENCE ($ 351*) – DOCUMENTARY Evi
8 121, 27 South. 921, is similar to the Minehill
DENCE-ADMISSIBILITY. Case. The action was to recover a license To render a record admissible as evidence, tax imposed for doing business as a corpora- there need not be any law or ordinance requirtion. The rolling mill corporation, after or-orá be kept by some person in the regular course
ing ganizing for the purpose of manufacturing of his occupation or business. and dealing in iron and iron products, leased [Ed. Note. For other cases, see Evidence,
[ its plant to another corporation, and its only Cent. Dig. $$ 1388–1397; Dec. Dig. & 351.*] corporate acts during the year in question 2. EVIDENCE (8 373*) - DOCUMENTARY EVIwere the collection of rents, the payment of
DENCE-HOSPITAL RECORD. taxes, the rent of some of its money, and to show that a hospital record was required to
In a personal injury action, evidence held collecting interest thereon, the doing all such be kept by an interne, rendering it admissible other things as are incident to the preserva- as evidence. tion of its property and the holding of its di- [Ed. Note. For other cases, see Evidence, rectors' meetings. The test under the law Cent. Dig. 88 1581-1586, 1590, 1592, 1593,
1610, 1611; Dec. Dig. $ 373.*] was whether the corporation exercised any of the functions, powers, or franchises which 3. EVIDENCE (8 351*) - DOCUMENTARY EVI
) it was intended to perform, or was engaged
DENCE-DELAY IN MAKING ENTRIES.
For a record to be admissible as evidence, in the transaction of the business or any the entries must be made contemporaneously part thereof which it was organized to trans- with the facts to which they relate. act. It was held that it had not done so, and [Ed. Note. For other cases, see Evidence, that it was not taxable. This case is also dence, Cent. Dig. $$ 1388–1397; Dec. Dig. $
351.*1 readily distinguishable from the case at bar on grounds already indicated.
4. EVIDENCE ($ 351*) — DOCUMENTARY EVI
DENCE-DELAY IN MAKING ENTRIES—"CONIn People v. Horn Silver Mining Co., 105
TEMPORANEOUS." N. Y. 76, 11 N. E. 155, the acts and activi- That a hospital record was only made up ties of the defendant company were held to every three days, as was the regular method, constitute “doing business." Peterson v. Chi- did not render it inadmissible because not con
temporaneous, since "contemporaneous" does cago, R. I. & P. R. Co., 205 U. S. 364, 27 | not mean that the record must be made at the Sup. Ct. 513, 51 L. Ed. 841; People v. Ameri- moment of the occurrence, but only within such can Bell Telephone Co., 117 N. Y. 241, 22 time as would reasonably make it a part of the
transaction. N. E. 1057; Mannington V. Hocking Val
[Ed. Note.-For other cases, see Evidence, ley R. R. Co. (C. C.) 183 Fed. 133; Chica- Cent. Dig. SS 1388–1397; Dec. Dig. $ 351.* go Title & Trust Co. v. Bashford, 120 Wis. For other definitions, see Words and Phrases, 281, 97 N. W. 940; and Toledo Traction, vol. 2, p. 1489.] ;
2 Light & Power Co. v. Smith (D. C.) 205 5. EVIDENCE (8 351*) - DOCUMENTARY EviFed. 643—are authorities for the doctrine DENCE-ENTRIES MADE FROM INFORMATION. that the holding by a corporation of a con
A hospital record of the progress of a trolling portion or all of the capital stock of patient, made by an interne in the regular
course of business, was not rendered inadmissia local corporation and the exercise of the ble because some of the facts recorded were not rights of a stockholder, such as voting on the of his own personal knowledge but were restock and assenting to the adoption of regu- ported to him by nurses and other doctors. lations, do not constitute doing business with-cent. Dig. SS 1388–1397 ; Dec. Dig. $ 351.*]
[Ed. Note. For other cases, see Evidence, in the state of the local corporation. They
$$ need no further comment.
6. EVIDENCE ($ 351*) – DOCUMENTARY Evi
DENCE-ENTRIES MADE FROM INFORMATION. We are of the opinion therefore that the
A hospital record kept by an interne, based United Traction & Electric Company was partly upon his own knowledge and partly on *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
reports from others, was not inadmissible be- VINCENT, J. This is an action of trescause the witnesses who made the reports tes- pass on the case for negligence, and is now tified at the trial, since such record tended to before this court upon the defendant's bill corroborate the testimony of the witnesses.
[Ed. Note.-For other cases, see Evidence, of exceptions. The case was tried in the Cent. Dig. $$ 1388–1397; Dec. Dig. $ 351.*] superior court to a jury, and a verdict was 7. EVIDENCE (8 351*) - DOCUMENTARY EVI. rendered for the plaintiff in the sum of $5,DENCE-HOSPITAL RECORD-ADMISSIBILITY. 000. Thereafter the defendant filed its mo
A hospital record of the condition and tion for a new trial which motion was deprogress of a patient, kept by an interne in the nied, whereupon it filed its bill of exceptions, regular course of business, was admissible as evidence of the facts recorded.
embracing the following 21 assignments of [Ed. Note. For other cases, see Evidence, error: Cent. Dig. $$ 1388–1397; Dec. Dig. § 351.*] "(1) To a certain ruling of said justice at said 8. TRIAL ($ 234*)-INSTRUCTIONS — MISLEAD- trial admitting certain evidence objected to by ING INSTRUCTIONS.
the defendant, as shown on page 238 of the Where, in a personal injury action, defend-transcript of testimony, etc., filed herewith. ant claimed that plaintiff's injury was aggravato trial admitting certain evidence objected to by
“(2) To a certain ruling of said justice at said ed by his disobedience of instructions of the surgeons at the hospital, and the surgeons tes the defendant, as shown on page 274 of the tified that in their opinion the injury was ag
transcript of testimony, etc., filed herewith. gravated thereby, it was error to charge that
"(3) To a certain ruling of said justice at the jury must first find "as an affirmative fact" said trial, excluding certain evidence offered by that the injury was so aggravated, since the es
the defendant, as shown on page 377 of the tablishment of such fact could not be by pos- transcript of testimony, etc., filed herewith.
, itive proof, but only by opinion evidence.
“(4) To a certain ruling of said justice at [Ed. Note. For other cases, see Trial, Cent. to by the defendant, as shown on pages 451 and
said trial, admitting certain evidence objected Dig. $8 534-538, 566; Dec. Dig. § 234.*s
452 of the transcript of testimony, etc., filed 9. HIGHWAYS (8 176*)-LAW OF ROAD-Ov- herewith. ERTAKING AND PASSING-CARE REQUIRED.
"(5) To a certain ruling of said justice at said Under Gen. Laws 1909, c. 87, § 1, requiring trial, admitting certain evidence objected to by a carriage or other vehicle overtaking any oth the defendant, as shown on page 456 of the er carriage or vehicle on any highway to pass transcript of the testimony, etc., filed herewith. on the left side thereof and the person over- "(6) To a certain ruling of said justice at said taken to drive to the right, a person in the rear trial, admitting certain evidence objected to by passing a vehicle in front is only required to the defendant as shown on page 494 of the exercise such care as conditions and circum- transcript of testimony, etc., filed herewith. stances demand.
“(7) To a certain ruling of said justice at [Ed. Note. For other cases, see Highways, said trial, refusing to give to the jury defendCent. Dig. $ 465; Dec. Dig. & 176.*]
ant's request to charge No. 1, the exception ap
pearing on page 516, and the said request to 10. TRIAL (_240*) - INSTRUCTION — ARGU- charge on page 525 of the transcript of testiMENTATIVE INSTRUCTION.
mony, etc., filed herewith. In an action for an injury to plaintiff, caus- “(8) To a certain ruling of said justice at ed by being run down by defendant's auto truck, said trial refusing to give to the jury defenddriven by his chauffeur, the court properly re-ant's request to charge No. 2, the exception apfused defendant's request to charge that in ar-pearing on page 516, and the said request to riving at a verdict the jury should act as though charge on page 525 on the transcript of testithe case had been brought against the chauffeur, mony, etc., filed herewith. etc.
“(9) To a certain ruling of said justice at [Ed. Note. For other cases, see Trial, Cent. said trial, refusing to give to the jury defendDig. § 561; Dec. Dig. § 240.*]
ant's request to charge No. 3, the exception ap.11. HIGHWAYS ($ 175*) – USE OF HIGHWAY charge on pages 525 and 526 of the transcript
pearing on page 516, and the said request to AND LAW OF THE ROAD—CARE REQUIRED.
of testimony, etc., filed herewith. Where plaintiff was riding a bicycle east on the south side of a highway and was in the said trial, refusing to give to the jury defend
"(10) To a certain ruling of said justice at exercise of ordinary care, and the driver of de ant's request to charge No. 4, the exception apfendant's auto truck going west suddenly drove pearing on page 516, and the said request to to the left to pass a team in front, and met and charge on page 526 of the transcript of testiran over plaintiff, who in the exercise of ordinary care could not get out of the way, defend-mony, etc., filed herewith.
"(11) To a certain ruling of said justice at ant was liable. [Ed. Note. For other cases, see Highways, ant's request to charge No. 5, the exception ap
said trial refusing to give to the jury defendCent. Dig. $$ 461-464; Dec. Dig. § 175.*] pearing on page 516, and the said request to Johnson, C. J., and Sweetland, J., dissenting. charge on page 526 of the transcript of testi
mony, etc., filed herewith. Exceptions from Superior Court, Provi. “(12) To the giving of a certain portion of dence and Bristol Counties; John Doran, the charge to the jury by said justice at said Judge.
are set forth on page 520 of the transcript of Action by Ramon Ribas against the Revere testimony, etc., filed herewith, lines 7 to 11, inRubber Company. Judgment for plaintiff, clusive, said part also appearing in the charge and defendant appeals. Reversed and remit' | by said justice on page 519 of the transcript of
Reversed and remit- testimony, etc., filed herewith. ted for new trial.
"(13) To the giving of a certain portion of Washington R. Prescott and Edward H. trial, which part and the exception thereto are
the charge to the jury by said justice at said Ziegler, both of Providence, for plaintiff. set forth on page 520 of the transcript of tesGardner, Pirce & Thornley, of Providence timony, etc., filed herewith, lines 12-15, inclu(James A. Pirce and Charles R. Haslam, both sive, said part also appearing in the charge by
said justice on pages 508 and 509 of the of Providence, of counsel), for defendant. transcript of testimony, etc., filed herewith.
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
tin's request to charge no.3, and send platine The plaintiff's declaration consists of one
"(14) To the reading to the jury by said the rights and duties toward rehicles approachjustice at maid trial during his charge to said ing from the opposite direction. jury of certain portions of the decision of the B. It was error for the court to charge Supreme Court of the state of Rhode Island in that, if the defendant was at the time of the acthe case of Angell v. Lewis, the exception there-cident traveling on the left of the road, he asto being set forth on page 520 of the transcript sumed the risk of so doing, and was required of testimony, etc., filed herewith, lines 24–26, to use greater care than if he had been travelinclusive, said portions appearing on pages 508 | ing on the right side. and 509 of the transcript of testimony, etc., "C. It was error for the trial justice to filed herewith.
charge that, if at the time of the accident the “(15) To the giving of certain instructions to defendant was on the left of the road, he would the jury by said justice at said trial at the re- be liable for all injury flowing exclusively therequest of the plaintiff, namely, the plaintiff's from. second request to charge as modified by said “D. It was error for the court to include in justice, the exception thereto appearing on its charge the quotations from the opinion in page 520, said plaintiff's request to charge No. the case of Angell v. Lewis, 20 R. I. 391 [39 2 on page 522, and said plaintiff's request to Atl. 521, 78 Am. St. Rep. 881.]. charge No. 2 as modified by said justice and giv- "E. It was error for the trial justice to re
en to the jury on page 517 of the transcript of fuse to grant the defendant's first, second, third, • testimony, etc., filed herewith.
and fourth requests to charge. "(16) To the giving of certain instructions to “F. It was error for the trial justice to the jury by said justice at said trial at the re- grant the plaintiff's fifth request to charge." quest of the plaintiff, namely, the plaintiff's (4) The trial justice erred in denying the dethird request to charge, the exception thereto fendant's motion for a new trial. appearing on page 520, said plaintiff's request And (5) the damages were excessive. to 3 522, said
as given to jury by said justice on page 517 of the tran- count. He alleges that on June 14, 1912, he script of testimony, etc., filed herewith.
was riding a bicycle easterly along Point "(17) To the giving of certain instructions to street in the city of Providence when an auto the jury by said justice at said trial at the re- truck near the boundary of Point Street quest of the plaintiff, namely, the plaintiff's fifth request to charge as modified by said jus- Bridge, traveling westerly, was driven so tice, the exception thereto appearing on page carelessly by the defendant's chauffeur that 520, said plaintiff's request to charge No. 5 on it ran into him, throwing him to the ground, page_523 and said plaintiff's request to charge as a result of which he sustained a fracture No. 5 as modified by said justice and given to the jury on page 518 of the transcript of testi- of the left leg between the hip and the knee. mony, etc., filed herewith.
It appears from the evidence that about 6 “(18) To the giving of a certain portion of o'clock, on the afternoon of je 14, 1912, the the charge to the jury by said justice at said defendant's auto truck, used for carrying trial, which part and the exception thereto are set forth on page 521 of the transcript of tes- merchandise, was being driven in a westerly timony, etc., filed herewith, line 3, said part direction over the Point Street Bridge, and also in the charge of said justice, being para- was being operated by one Alexander J. graph 'First' at line 8 on page 515 of the tran- Lodge, one of the defendant's employés. Anscript of testimony, etc., filed herewith.
"(19) To the giving of a certain portion of other employé of the defendant, Arthur Berthe charge to the jury by said justice at said ry, was upon the truck with Lodge at the trial, which part and the exception thereto are time. set forth of
In proceeding across the bridge the timony, etc., filed herewith, line 3, said part truck traveled at a low rate of speed along also in the charge of said justice, being para- the northerly side thereof, and behind a twograph 'Third' at line 21 on pages 515 and 516 horse wagon, the horses being driven at a of the transcript of testimony, etc., filed here- walk. When the wagon in front reached a with.
"(20) To the giving of a certain portion of point near the west end of the bridge, having the charge to the jury of said justice at said already passed the gates at the west end of trial, which part and the exception thereto are the draw and also the joist set in the middle
of tes timony, etc., filed herewith, lines 4 to 8, in- of the bridge to separate the driveways, clusive, said portion also appearing in the charge Lodge sounded his horn, shifted his speed of the said justice on pages 514 and 515 of said from first to second, and started to pass on transcript of testimony, etc., filed herewith. "(21) To the decision of said justice denying thus attempting to pass the team in front, a
the left of the wagon in front of him. While defendant's motion for a new trial, which motion was based upon the following grounds."
collision took place between the truck and
the plaintiff, who was riding a bicycle in an The several questions which the defendant opposite direction. The collision resulted in argues under its bill of exceptions are more throwing the plaintiff to the ground and inparticularly set forth in its brief as follows: flicting upon him injuries for which he now
(1) That the hospital record, showing clear. seeks to recover damages. At the westerly ly the misconduct of the plaintiff at the hospital, end of the bridge, where the asphalt pavewhich, to some extent precluded a satisfactory recovery from his injuries, should have been ment and the granite block pavement meet, admitted in evidence.
the roadway for. vehicles is 24' 10" in width, (2) That the trial justice charged the jury and this width continues across the bridge improperly as to the plaintiff's misconduct at to the east. In a westerly direction from the hospital.
(3) That the trial justice instructed the jury the bridge, the roadway widens gradually on improperly as to the law of the road as applied the north side until it reaches a width of to the facts of this case:
32' 4". It then commences to widen on the “A. It was error for the court to charge that the statutory rule of the road in case of south side, and finally reaches a width of one vehicle overtaking another does not affect 40' that being the full width of Point street.