liability for injury.

5. An instruction in an action to recover

damages for injury by collision with a street car, that the verdict should be for defendant if the motorman used ordinary care in the management of the car at and near the place of the injury, includes a requirement of constant lookout for persons on the track. Same conflict - ability to harmonize. 6. Instructions should not be considered as in conflict if they can be harmonized. action for violation of statute not expressly conferring it, see note to Wolf v. Smith, 9 L.R.A. (N.S.) 338.

Generally as to the rules of the road governing vehicles proceeding in opposite directions, see note to Smith v. Barnard, 41 L.R.A. (N.S.) 322.

As to rules of the road governing vehicles proceeding in the same direction, see note to Hackett v. Alamito Sanitary Dairy Co. 41 L.R.A. (N.S.) 337.

As to rules of the road governing vehicles at intersection of streets and when turning across street, see note to Molin v. Wark, 41 L.R.A. (N.S.) 346.

As to rule of the road as affecting street cars and vehicles meeting or passing, see note to Foster v. Curtis, 42 L.R.A. (N.S.)

1188.

The cases passing upon the effect of a violation of an ordinance giving fire apparatus going to a fire a superior right of way with reference to liability for collision with a street car are presented in the note to Dole v. New Orleans R. & Light Co. 19 L.R.A. (N.S.) 626.

or

While the cases in the present note hold that the violation of a statute or ordinance giving a vehicle a superior right of way over another vehicle may be shown in evi dence, in an action for injury, as a circumstance for the consideration of the jury from which negligence may be inferred in determining whether the parties were were not guilty of negligence, attention is called to the fact that there is considerable conflict among the cases as to what extent a violation of a statute or ordinance may affect liability for injury. Thus it has been held that a violation of a statute or ordinance which is clearly for the benefit and protection of persons imposes a legal duty,

7. Notwithstanding an ordinance giving wagons carrying United States mail a right of way over street cars on the public streets, the one in charge of such wagon, who, while looking at an approaching car, drives in front of it, cannot hold the railroad company liable for the resulting injury unless the motorman was negligent in failing to use due care in endeavoring to stop the car after discovering his peril.

9. It is not such an abuse of discretion on the part of the trial court to refuse to admit the neglect to discharge which gives any person injured thereby a right of action against persons violating its provisions. But if the duty enjoined is one due to the public at large only, no right of action accrues to an individual from a failure to discharge such duty. See notes in 5 L.R.A. (N.S.) 186; 9 L.R.A. (N.S.) 338; and 47 L.R.A. (N.S.) 820.

In numerous cases it is held that a violation of an ordinance or statute is negligence per se. In other cases it is held that a violation of an ordinance or statute is only evidence of negligence to be considered by the jury, as is held in BAIN v. FT. SMITH LIGHT & TRACTION CO. It should be observed, however, that the cases quite generally hold that the violation of a statute or ordinance must be the proximate cause of the injury in order that it may be available in an action for the injury complained of.

A municipal ordinance giving ambulances the right of way over all other vehicles is admissible in evidence, in an action by an ambulance surgeon for personal injuries sustained by collision with a street car in a city street, as the violation of the ordinance is some evidence of the street railway company's negligence. Buys v. Third Ave. R. Co. 45 App. Div. 11, 61 N. Y. Supp. 113.

Under a statute (chap. 186, New York Laws 1879) giving an ambulance the right of way as against an ice wagon, the driver of the ambulance has the right to assume that the driver of the ice wagon will pay proper heed to the ringing of the ambulance bell and the driver's shouting. Byrne v. Knickerbocker Ice Co. 24 Jones & Š. 337, 4 N. Y. Supp. 531, affirmed without opinion in 121 N. Y. 700, 24 N. E. 1100.

A municipal ordinance which gives the right of way at street intersections to ve

Statement by Wood, J.:

The appellant was a United States mail collector, and under an ordinance of the city of Ft. Smith, in case of conflict, had the preferential right of way over the appellee in the use of the streets. While in the discharge of his duties, he drove his cart to the mail box at Manhattan Café on Garrison avenue, stopped the cart about 4 feet from the box, which was at the curb, gathered the mail from the box, and as he locked the box hicles moving north and south over those going east and west is admissible in evidence in an action for damages caused by a collision at a crossing. H. E. Taylor & Co. v. Metropolitan Street R. Co. 84 N. Y. Supp. 282. The exclusion of this evidence when offered by the defendant for the purpose of showing contributory negligence on the part of the plaintiff was held to constitute reversible error in the above case. The court said: "Disregard of the duly established rule of the road would not necessarily constitute contributory negligence in the driver, but, if found, it would be a circumstance within the consideration of the jurors, as every man proceeding lawfully may rightfully assume that others will confirm their conduct to the requirements of statute, and regulations having the force of statute."

So, in Elbing Brewing Co. v. Linch, 80 Misc. 517, 141 N. Y. Supp. 480, it was said, in holding such an ordinance admissible in evidence in an action for injuries caused by a collision at a street crossing, that "the question of right of way had an important bearing, not alone upon the question of defendant's negligence, but upon the freedom of the plaintiff's chauffeur from contributory negligence."

In McCarragher v. Proal, 114 App. Div. 470, 100 N. Y. Supp. 208, it was held that when a municipal ordinance gives the right of way at street intersections to vehicles moving north and south over those going east and west, it is the duty of those moving in either of the latter directions and meeting those moving at right angles, to wait until the latter have passed; and a failure to do so, when a collision happens, is evidence of negligence for the jury.

In Quinn v. New York City R. Co. 94 N. Y. Supp. 560, it was held in an action for

his horse started across the street, as he was in the habit of doing, to the mail box on the opposite side. Appellant jumped into the cart when same was 10 or 12 feet from the curb, and about the middle of the street between the curb and the first car track. At this time the street car was at or crossing Fifth street, about 75 feet away. Appellant did not know the speed the car was going. It increased its speed after crossing Fifth street, but appellant thought the motorman would check the speed and control the car so as not to run over him. This the motorman could have done had he applied the brakes in time, but the motorman did not check up the speed of the car until he was within 10 or 12 feet of appellant's cart, when he made a hurried effort to do so. Appellant's wagon nearly cleared the track, but the hind wheel was struck by the car, causing appellant's horse and cart to be dragged against the first trolley post east of the point of contact, which was more than 50 feet from where appellee's car struck the cart of appellant. Appellant was thrown injuries caused by a collision with a street car that a city ordinance which gave the street car a superior right of way was admissible as bearing upon the degree of caution imposed upon the motorman under the circumstances.

In Connor v. Electric Traction Co. 173 Pa. 602, 34 Atl. 238, it was held that the disobedience of a municipal ordinance regulating the movements of vehicles, and giving a right of way to those moving in certain directions at street intersections, is not necessarily negligence, but only evidence of negligence.

Although not strictly within the scope of the present note, attention is here called to Foulke v. Wilmington City R. Co. 5 Penn. (Del.) 363, 60 Atl. 973, where it was held, in an action to recover damages for injuries sustained by a collision with a street car at a street crossing, that the uniform usage or practice of the street car company to stop its cars at crossings to permit funeral processions to pass without interruption, known to the driver of the injured team, and relied upon by him while going to a funeral at the time of the accident, may be taken into consideration by the jury in estimating the degree of diligence required by the driver in looking out for an approaching car before attempting to cross the railroad track, as he might reasonably presume or infer the continuance of that usage; but that the failure to observe such usage would not amount to neg ligence on the part of the street car company, and such usage would not relieve the driver of reasonable care in making the crossing. To the same effect is White v. Wilmington City R. Co. 6 Penn. (Del.) 105, 63 Atl. 931, which was an action growing out of the same accident. A. L. R.

art, 62 Ark. 164, 34 S. W. 889; St. Louis Southwestern R. Co. v. Bryant, 81 Ark. 368, 99 S. W. 693.

thorize the construction of street railways (Kirby's Dig. § 5443), and in the ordinance granting the charter to the appellee the city could undoubtedly have reserved to itself

1. The appellant asked the court to tell the jury, in his prayer No. 4, that the city ordinance gave United States mail wagons when in use collecting mail the right of way, and that the appellant, as the driver of such wagon, had the right to assume that appellee's motorman, if he discovered, or, by the exercise of ordinary care, would have discovered, the approach of the mail wagon, would accord it and the driver the right of way. The court refused this prayer, but instructed the jury as follows: "The motorman and the driver of the mail wagon are presumed to have been familiar with the ordinance giving the United States mail wagons the right of way, and their conduct must be judged in the light of this provision."

And further, at appellant's request, prayer No. 10: "The jury, in determining whether defendant was guilty of negligence and whether plaintiff was guilty of contributory negligence, may take into consideration the ordinance introduced in evidence so far as same affects the rights of plaintiff and defendant."

The court further instructed the jury on its own motion No. A as follows: "The ordinance of the city of Ft. Smith introduced in evidence does not create any liability against the defendant and is only to be considered by the jury in passing upon the question as to whether there was negli gence upon the part of either the plaintiff or defendant."

Did the court err? It is not within any of the general or special powers conferred upon municipal corporations in this state to create a right of action between third persons, nor to enlarge the common-law or statutory liability of citizens among themselves. This could only be done by contract between the municipality and the company sought to be charged with the violation of an ordinance alleged to be for the benefit of a citizen. Kirby's Dig. chap. 115; Holwerson v. St. Louis & Suburban R. Co. 157 Mo. 216, 50 L.R.A. 850, 57 S. W. 770. Such power is not implied from any of the powers expressly conferred. A municipal corporation has no powers except those expressly conferred and those fairly implied for the attainment of declared purposes. Morrilton Waterworks Improv. Dist. v. Earl, 71 Ark. 4, 69 S. W. 577, 71 S. W. 666. See also Winchester v. Redmond, 93 Va. 711, 57 Am. St. Rep. 822, 25 S. E. 1001.

The city had the express power to au

the granting of the franchise,-the power to pass ordinances for the protection of persons and property of individuals, and creating a liability in their favor against the company for a violation of such ordinances; and the company, if it accepted the franchise with these provisions, would be bound thereby and liable in damages to individuals for a violation of such ordinances. It is not shown that the city of Ft. Smith reserved to itself such power as a consideration for the grant of its franchise to the appellee, or that the company accepted the franchise with such power reserved as a consideration therefor. The violation of the ordinance, therefore, could not become the basis of the liability for personal injuries. See Byington v. St. Louis R. Co. 147 Mo. 673, 49 S. W. 876.

We have no statute creating a liability against street railway companies in favor of parties injured for breaches of ordinances passed for the protection of persons or property, and there is no statute conferring upon municipal corporations the power to pass such ordinances, as was the case in Hayes v. Michigan C. R. Co. 111 U. S. 228, 28 L. ed. 410, 4 Sup. Ct. Rep. 369. Therefore no power existed in the city to create a liability in favor of appellant against appellee for a violation of the ordinance under review, and, if the ordinance had created such liability, it would have been void for lack of power to enact it.

A city, under its general police power over the streets, could pass any reasonable and proper regulations prescribing the manner in which the franchise of street railways should be enjoyed, not inconsistent or in conflict with their charter rights. 36 Cyc. 1447, and note.

As we construe the ordinance, it does not undertake to create a liability in favor of United States mail collectors against the appellee for a violation of its terms. It is only a police regulation, to be enforced solely by fine, and was designed primarily for the benefit of the general public, to insure the United States mail free course. True, it operates incidentally to protect the mail carts and the persons of mail collectors while engaged in their duties, but it was not enacted for their special personal benefit in the sense of creating a right of action in their favor against the street railway company for a violation of the ordinance. What effect, then, should be given the ordinance in this case?

In common-law actions for negligent in