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inson, Carriers, 3d ed. § 100, is quoted with approval: "The safety and lives of those who avail themselves of this means of carriage must of necessity be intrusted in a great measure to the care of those who control and operate the cars. The law, therefore, justly holds that, while the owners of passenger elevators are not insurers of the safety of their passengers, they are bound to exercise in their behalf the highest degree of skill and foresight, or, as some courts have expressed it, the utmost human care and foresight consistent with the efficient use and operation of the means of conveyance employed."

The language thus quoted from Hutchinson is apt, and applicable to the instant case. The rule requiring the high degree of care referred to is based upon a consideration of public policy designed to protect the lives and limbs of passengers upon such conveyances.

Whether in a strictly technical sense the defendant can be regarded as a common carrier of passengers or not, the defendant was bound to use reasonable care according to the nature of the contract, and that, in view of the nature of the business and the peril to life and limb of the passengers likely to arise from an accident, this reasonable care should be defined as

Carrier-care

the highest degree due from oper- of care consistent ator of taxicab. with the proper transaction of the business. Hinds v. Steere, 209 Mass. 442, 35 L.R.A. (N.S.) 658, 95 N. E. 844, 1 N. C. C. A. 134.

In Gardner v. Boston Elev. R. Co. 204 Mass. 213, 90 N. E. 534, it is said: "A common carrier of passengers either by rail or by water has so complete a control, and the consequences of negligence on his part may be so serious, that he is justly held to a very high degree of care for their safety; and accordingly it has been often said, both in this and in other jurisdictions, that

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and held for public hire at designated places subject to municipal control. Every element involved in the carriage of a passenger in a passenger elevator is included in the service performed by a taxicab. The operator of the taxicab is in no manner under the control of the passenger, excepting only with respect to the transportation to the place of destination. The operation of the cab is completely within the power and control of the operator. Like in a passenger elevator, the passenger is inclosed in a cab, and when he engages the services, he places himself completely in the power, of the operator. The cab itself is subject to the call of any member of the public. In fact, the defendant maintained for such service twenty-eight of these cabs. The particular cab in question was stationed at a railroad depot, presumably for the conveyance of travelers, and was despatched to the place where the plaintiff required service, by an employee at the office of the defendant. No specific bargain was made as to mileage or rates, but the ordinary rule in vogue for passenger service for the benefit of the public was employed. The cab was supplied with a taximeter, which registered the mileage, and the fixed rates were applied to the actual mileage, and the sum charged was based both upon the rates and the mileage. Those employing taxicabs desire greater speed and convenience in transacting their business than are furnished by the ordinary street car or jitney bus.

In connection with what has been said, we cannot ignore our common knowledge with respect to the extent of the development of the taxicab business engaged in the transportation of members of the public

(179 Wis. 300, 191 N. W. 748.)

in the larger cities. Such development has kept pace with the use of the automobile generally; and while the evidence in this particular case is not as complete and as satisfactory as it undoubtedly could have been made, nevertheless there is every indication persuasive of the fact that the defendant's business was operated pursuant to the usual and ordinary custom prevailing with respect to the taxicab business in general.

Defendant's counsel places great reliance upon the decision in the case of Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 60 L. ed. 984, P.U.R.1916D, 972, 36 Sup. Ct. Rep. 583, Ann. Cas. 1916D, 765. In that case the court held that that portion of the defendant's business, being of its entire business, and which consisted mainly in furnishing automobiles from its central garage on orders, generally by telephone, was not to be regarded as a public utility. In the Terminal Taxicab Case it was said that "the bargains are individual, and, however much they may tend towards uniformity in price, probably have not quite the mechanical fixity of charges that attends the use of taxicabs from the station and hotels."

In the Federal case referred to, a distinction was drawn between those cabs which travel between fixed points, like hotels and railroad stations, and taxicabs hired pursuant to an individual bargain at a fixed price. In rendering its decision, however, the court freely admitted its doubt as to the correctness of the position taken by it.

A careful comparison of the facts in the Federal case and the instant case will show that, while the service furnished by the defendant in the instant case was pursuant to a telephone call to the general office, the cab furnished was not stationed at the office, but at the depot, and that no individual bargain was made for the service, but that the transportation proceeded upon a regular schedule, based upon fixed

31 A.L.R.-76.

rates and on mileage registered by a taximeter. The facts in the instant case would indicate quite clearly that the cab was for the general use of members of the public; that all members were treated alike, and were subjected to fixed charges.

-necessity of

utility.

In order to constitute a public conveyance a common carrier, it is not necessary that it come within the definition of a public utility so as to be subjected to the rules and Carrier-public regulations of a being public public utility commission. Newcomb v. Yellow Cab Co. (Ill.) P.U.R.1916B, p. 985. To constitute the conveyance of a common carrier it is not necessary that it should move between fixed termini or even upon fixed routes. Parmelee v. Lowitz, 74 Ill. 116, 24 Am. Rep. 276; Pennewill v. Cullen, 5 Harr. 238. It has also been held that fixed charges are not an essential attribute of a common carrier of goods. Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 70 Am. St. Rep. 432, 52 N. E. 665.

Under the trend of modern judicial decisions it appears that the great weight of authority is in favor of holding a taxicab like that in the instant case as a public carrier. -commonAnderson v. Fidel

taxicab as.

ity & C. Co. 228 N. Y. 475, 9 A.L.R. 1549, 127 N. E. 584; Cushing v. White, 101 Wash. 172, L.R.A. 1918F, 463, 172 Pac. 229; Carlton v. Boudar, 118 Pa. 521, 4 A.L.R. 1480, 88 S. E. 174; Georgia L. Ins. Co. v. Easter, 189 Ala. 472, L.R.A. 1915C, 456, 66 So. 514; Fidelity & C. Co. v. Joiner, Tex. Civ. App.

178 S. W. 806; Lemon v. Chanslor, 68 Mo. 341, 30 Am. Rep. 799; Lewark v. Parkinson, 73 Kan. 553, 5 L.R.A. (N.S.) 1069, 85 Pac. 601, 20 Am. Neg. Rep. 81; Jackson Architectural Iron Works v. Hurlbut and Parmelee v. Lowitz, supra; Donnelly v. Philadelphia & R. R. Co. 53 Pa. Super. Ct. 78, 82; Van Hoeffen v. Columbia Taxicab Co.

179 Mo. App. 591, 599, 600, 162 S. W. 694; Primrose v. Casualty Co. of America, 232 Pa. 210, 37 L.R.A. (N.S.) 618, 622, 623, 81 Atl. 212; Huddy, Auto. 6th ed. p. 152, § 131; 2 Moore, Carr. 944.

From what has been said, we hold that public policy requires that the taxicab in the instant case be classed a common carrier, and that

the instruction of the court complained of was proper.

We have carefully examined the evidence, and find that there is evidence, ample credible testimony to support the answers of the jury to the questions of the special verdict. The damages found are not unreasonable, but extremely moderate.

The judgment of the lower court must therefore be affirmed.

ANNOTATION.

Duty and liability of carrier of passengers for hire by automobile.

I. Jitneys; busses, 1202.

II. Taxicabs:

a. Generally, 1206.

b. Effect of passenger giving directions as to route, 1207.

c. Employees restraining and causing arrest as ground of action, 1208.

[No later decisions herein.]

d. Failure to complete trip as

breach of contract, 1208. [No later decisions herein.]

e. [New] Duty of passenger; contributory negligence, 1208.

This anotation is supplementary to annotation on the same subject in 4 A.L.R. 1499.

On the question of the liability for negligence of a chauffeur furnished with a car hired for an extended period, see annotation in 8 A.L.R. 484.

I. Jitneys; busses. (Supplementing annotation in 4 A.L.R. 1500.)

The owner of a jitney bus is considered a common carrier of passengers, and as such owes a duty to the passengers to exercise the highest degree of care for their safety that is consistent with the conduct of its business. Simmons v. Pacific Electric R. Co. (1922) - Cal. App. —, 212 Pac. 637; Carnahan v. Motor Transit Co. (1924) Cal. App. —, 224 Pac. 143; Karnitsky v. Mashanic (1920) 94 N. J. L. 127, 109 Atl. 303; Thibodeau v. Hamley (1920) 95 N. J. L. 180, 112 Atl. 321; McCaffery v. Automobile Liability Co. (1922) 176 Wis. 230, 186 N. W. 585.

In the absence of a statute requir

III. Rented automobiles:

a. Injuries to hirer:

1. Generally, 1209.

2. Accidents on wet street, 1211.

[No later decisions herein.]

3. Accidents from car starting during chauffeur's absence, 1211.

[No later decisions herein.]

b. Injuries to guests, 1211.

c. [New] Duty of passenger; contributory negligence, 1211.

IV. Miscellaneous, 1211.

ing jitney owners to provide the windows of the jitney busses with guards sufficient to prevent passengers from sticking parts of their bodies out of the windows, it is not negligence on the part of the bus owners to fail to provide such guards. Thibodeau v. Hamley (1920) 95 N. J. L. 180, 112 Atl. 321, supra.

The negligence of the driver of a public bus is not imputable to its passengers, who may recover either from the bus company or the street car company for injuries received in a collision between the bus and a street car. Simmons v. Pacific Electric R. Co. (Cal.) supra.

A jitney operator who, upon arriving at a street intersection, has by the law of the road the right of way, is justified in assuming that an automobile approaching from the intersecting street will comply with the law and yield the right of way, and in proceeding on his course, and where he takes an extra precaution in swerving his car in the opposite direction from that in

which the other car is approaching, in order to avoid any possibility of collision, he is, as a matter of law, free from negligence, although the approaching automobile thereafter, in violation of the law of the road, cuts across, causing a collision with the jitney which the driver could not avert. McCaffery v. Automobile Liability Co. (Wis.) supra, affirming a judgment of dismissal in an action by a passenger in the jitney to recover for injuries received in the collision. The court stated that while the operator of a jitney, under the law pertaining to common carriers, is obligated to exercise the high degree of care above referred to, he is not charged with the necessity either of possessing superhuman powers of anticipating, or exercising such powers in, a threatened emergency, but that the degree of care must be such as is consistent with the practical operation of the jitney.

Where a bus, which was being driven at night at a speed ranging from 25 to 40 miles per hour and was equipped with headlights which threw rays only 100 feet ahead in violation of the Motor Vehicle Law requiring headlights to throw rays 200 feet, skidded into another machine on the side of the road which apparently the driver did not see, although both headlights and taillights were burning, when it encountered oil flowing from a broken pipe line, and covering the highway, the color of which was similar to that of the highway, and which the driver did not see until the car began to skid and he could not thereafter prevent it from slipping either by use of the brakes or clutch, the court in Carnahan v. Motor Transit Co. (Cal.) supra, in affirming a judgment for the plaintiff, a passenger in the bus, for injuries received in the collision, stated that, conceding it was beyond the power of the driver to control the bus after it began to skid, if the bus had been equipped with proper lights, the driver would have discovered the oil in the highway in sufficient time to have brought his car into control before reaching it, provided he was in the

exercise of that care and diligence enjoined upon one in charge of a vehicle of a common carrier.

A bus driver, required to exercise the highest degree of care for the safety of his passengers, who, for their comfort, drives the bus on the more dangerous part of the highway, in close proximity to the street car tracks knowing that street cars are likely to approach from the rear, must exercise the utmost care in order to hear warning signals, and turn away from the tracks as soon as the diligence commensurate with the high degree of care which he owes his passengers will permit, and his failure to hear the signal of an approaching car shows a lack of care on his part and renders him liable to a passenger who is injured by a rear-end collision with the street car, following the driver's failure to turn off the tracks after the signal is given by the car. Simmons

v. Pacific Electric R. Co. (Cal.) supra.

KLORAN V. DROGIN (reported herewith) ante, 1191, holds that the jury must determine the liability of the owner of a jitney bus, who as a common carrier must exercise the high degree of care required by the established rule in respect to common carriers, for an injury to a passenger caused by the explosion of a tire, where noises emanating apparently from the wheel had attracted the attention of the driver several times, so that he stopped to examine into the

cause.

And in Tansey v. Tedesco (1919) 93 N. J. L. 259, 107 Atl. 419, in an action to recover damages for injuries alleged to have been caused in attempting to board a jitney bus, the court held that the evidence that the plaintiff attempted to board the jitney while it was moving slowly, and in so doing slipped on the icy steps, and that the driver of the jitney refused to stop after he had knowledge of the plaintiff's predicament, was sufficient to sustain a judgment for the plaintiff.

In Farrell v. Boggs & Buhl (1919) 263 Pa. 221, 106 Atl. 198, it was held that the question of the negligence of

a chauffeur employed by the defendant to drive a motor bus which it operated in connection with a department store was properly submitted to the jury, where the evidence showed that the chauffeur saw the car with which he collided, backing out of an alley 45 feet distant, and could have stopped before reaching that point, but failed to do so, and failed to slacken his speed or give any signal. In Ivancich v. Davies (1921) 186 Cal. 520, 199 Pac. 784, the owner of a jitney bus was held liable to one who, without the actual knowledge of the driver of the bus, had jumped on the running board with the intention of becoming a passenger, and had been compelled to stand there on account of the crowded condition of the bus, he being injured when the bus was driven so close to a truck standing by the curb as to cause his knee to strike the fender of the truck. The court held that in veiw of the evidence as to the crowded condition of the bus the mere fact that the plaintiff was riding on the running board did not, as a matter of law, constitute negligence barring recovery. Nor could recovery be barred on the ground that he was contributorily negligent in allowing parts of his body to protrude beyond the sides of the car, inasmuch as the evidence indicated that the injury was caused, not because of the protruding of the plaintiff's leg, but because of the difference in the height of the fenders of the two machines, which allowed the fender of the bus to go under that of the truck, and that the plaintiff was riding close up to the body of the bus and not leaning out.

And in Thibodeau v. Hamley (1920) 95 N. J. L. 180, 112 Atl. 321, where the plaintiff, a passenger on a jitney bus, was injured when it came in contact with another bus, crushing his arm, which was out of the window, the court, in affirming a judgment for the plaintiff, held that the mere fact that a passenger in a jitney bus puts his arm out of the window is not negligence per se, but the question of his negligence is a fact to be determined by the jury, considering all the cir

cumstances of the case; also, it is for the jury to say whether such negligence contributed to the particular injury.

An instruction that it was not negligence per se for a pasenger to ride on the step of a jitney bus, if the bus was crowded, is not objectionable for the reason that it carries the implication that in case the bus was not crowded it was negligence per se to ride on the step, although the passenger did so with the express or implied consent of the owner, for the fact that he occupied a place of danger with the consent of the carrier has no relevancy to the question of whether he was negligent or not, unless he was compelled either to take that place or else not become a passenger. Karnitsky v. Mashanic (1920) 94 N. J. L. 127, 109 Atl. 303. It was stated, however, that the consent or invitation might impose a greater obligation on the carrier to look after the safety of the passenger, although it would not change the character of the passenger's act from a negligent to a nonnegligent one.

The court is, however, not required to use any particular form of words in charging the jury on the question of the care which the operator of a bus owes to its passengers, and a charge that it is for the jury to say whether the driver "operated his automobile as a reasonably careful and prudent person would operate it,-whether or not, in view of the high degree of care which is owing by a carrier of passengers to the passengers, he did what an ordinarily prudent and careful man would have done," is a sufficient statement of the law in that respect. Ibid.

And in Sinclair v. Wiles & Foy (1921) 116 Wash. 409, 199 Pac. 725, in an action to recover for injuries suffered in a collision between a jitney bus and a mail truck, it was held that the trial court properly denied a motion for a nonsuit and a motion for judgment notwithstanding the verdict, where the evidence showed that the mail truck had the right of way over ordinary traffic, that its driver gave the proper signal, and that there

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