3. PLEADING (§ 428*)-OBJECTIONS-MODE OF, nection with facts to which it was intended to MAKING. apply.

The proper way, in an action for injuries to a bicyclist in a collision with an automobile, to have raised the question whether under the rule of pleading (Practice Book 1908, p. 244, § 144) plaintiff should have alleged that the automobile was driven by defendant by his agent would have been to object to proof that it was so driven.

[Ed. Note. For other cases, see Pleading, Dec. Dig. § 428.*]

4. TRIAL (§ 295*)-INSTRUCTIONS-CONSTRUCTION AS A WHOLE.

An instruction, in an action for injuries sustained by a bicyclist in a collision with an automobile, that the statute law made it defendant's duty, when he met plaintiff, to slacken his speed, if necessary, and to seasonably turn to the right so as to give her one-half of the traveled path, if practicable, and a fair and equal opportunity to pass, clearly stated defendant's duty as fixed by Pub. Acts 1905, p. 412, c. 216, and pages 426, 427, c. 230, §§ 10, 11, 14, and was not open to criticism that it placed the entire burden of avoiding the collision upon defendant, where the court had already defined plaintiff's duty, and had instructed that she could not recover if the accident was due to her failure to perform it.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 706.*]

9. MUNICIPAL CORPORATIONS (§ 705*)—STREETS

-NEGLIGENT USE-AUTOMOBILES.

of speed through city streets at times when, The driving of an automobile at a high rate and places where, other vehicles are constantly around corners at the intersection of streets, or passing, and persons liable to be crossing, or in passing by street cars from which passengers have just alighted, or may be about to alight, or in other similar places and situations where persons are liable not to observe an approaching automobile, is in itself actionable negligence; and one operating an automobile is bound to take notice of the peculiar dangers of collisions in such places, and cannot secure immunity from liability by merely sounding the automobile horn.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 705.*]

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Personal injury action by Annie Irwin against Franklin Judge. There was verdict and judgment for plaintiff for $500, and a [Ed. Note.-For other cases, see Trial, Dec. motion to set aside the verdict was denied, Dig. § 295.*] and defendant appeals. No error.

5. TRIAL (§ 295*)-INSTRUCTIONS-CONSTRUCTION AS A WHOLE.

J. Belden Hurlbutt, for appellant. James

Instructions, in an action for injuries to T. Hubbell, for appellee.

a bicyclist in a collision with an automobile, that if defendant was on the left-hand side of the street when the collision occurred, he failed to perform a duty which he owed by statute to plaintiff, and should be found negligent, unless he was coming from an intersecting street, and had not had time to get to the right-hand side, and that when a collision occurs, the fact that a person is on the wrong side is prima facie evidence of negligence, are not open to the criticism that they stated that one may not lawfully drive upon the left-hand side of the road, where the court had previously instructed that the law did not require a person to drive on his right side, but did require him to turn to his right when meeting another, and since such instructions were expressly confined to the position of

defendant at the time of the collision.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 295.*]

6. MUNICIPAL CORPORATIONS (§ 702*)-STREETS -NEGLIGENT USE.

To turn an automobile sharply to the driver's left hand on coming in from an intersecting street is negligence.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 702.*]

HALL, J. The plaintiff, who at the time of the accident by which she was injured was 16 years of age, brings this action by her next friend, alleging in her complaint that, on the 1st day of August, 1906, at about 6 o'clock in the afternoon, when she was going southerly down North Main street on the right-hand side of the street, in the city of South Norwalk, riding a bicycle, at a moderate rate of speed, she was, at a described point, run into by an auto car going northerly on the left-hand side of the road, and driven by the defendant at a high rate of speed, and injured, and that the accident was caused by the defendant's negligence in being on the wrong side of the street, and running his car at so high a rate of speed that it was beyond his control. Main street, in the city of South Norwalk, runs north and south. Washington street, running east and west, crosses it at a central point of the trav

7. MUNICIPAL CORPORATIONS (§ 705*)-NEG-el and traffic of the city. On the map, made LIGENT USE-HIGH RATE OF SPEED.

A high rate of speed is an unreasonable one. considering the time and place, and one which prevents the driver from controlling the automobile so as to avoid a collision, though it may be less than the maximum statutory rate. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1515; Dec. Dig. 8 705.*]

8. MUNICIPAL CORPORATIONS (§ 706*)-STREETS -ACTIONS FOR NEGLIGENT USE-INSTRUCTIONS.

An instruction, in an action for injuries sustained by a bicyclist in a collision with an automobile, that if defendant was driving at a high rate of speed at the time, the jury must find that such act was in itself unlawful, and therefore negligent, must be considered in con

a part of the record, the portions of Main
street north and south of the Washington
street crossing are designated, respectively,
"North" and "South" Main street, and those
of Washington street east and west of said
crossing "East" and "West" Washington
street. There are trolley tracks near the
center lines of each of said streets. On the
1st of August, 1906, the defendant, in his
automobile, was riding easterly on West
Washington street, intending to turn up
North Main street. His machine was op-
erated by one Caldwell, who commenced
a chauffeur about two weeks
working as
before that time. The plaintiff was riding

Among the other statements made in the charge to which the defendant takes exception in his reasons of appeal are the following:

44 #

a bicycle on North Main street, going south- | fendant's) car and running it, and that he erly, and intending to turn down East Wash- (the defendant) was teaching him how to ington street. The collision occurred north run it. Caldwell's testimony was to the same of the Washington street crossing. There effect. The defendant further testified on was a conflict of testimony as to the precise cross-examination that he did not claim that point where the collision occurred, and also he was not responsible for what occurred beregarding the exact direction in which the cause he was not running the car. The propplaintiff was going, and the speed of the au- er way to have raised the question of whethtomobile and the direction in which it was er under the rule of pleading (section 144, going. The plaintiff claimed that as going p. 244, Practice Book 1908), the plaintiff southerly on North Main street, she ap- should have alleged that the automobile was proached the Washington street crossing, she driven by the defendant by his agent Caldwas riding her wheel on the west side of the well would have been to object to proof that street, and just west of the trolley tracks it was so driven. on North Main street, and that the automobile coming from West Washington street turned northerly, and came rapidly up the west side of North Main street, and ran into her wheel, and threw her off, as she was about to cross the trolley track to go over to East Washington street. The defendant claimed that when, going easterly along West Washington street, he reached the Main street crossing, he at a slow rate of speed crossed to the east side of North Main street, and when his automobile had stopped, or nearly stopped, the plaintiff, who had crossed, or was crossing, to the east side of North Main street, ran into the automobile. In his appeal to this court the defendant complains: (1) That the damages awarded are excessive; (2) that the trial court erred in denying defendant's motion to set aside the verdict as against the evidence; and (3) that it erred in refusing certain requests to charge, and in giving certain instructions to the jury. The claim that the damages awarded are excessive is not pursued by the defendant. Regarding the second point, it would be unprofitable to repeat here the evidence which we deem sufficient to support the verdict rendered. It is enough to say of this claim, that an examination of the evidence satisfies us that the trial judge correctly stated, in his memorandum of decision, that "upon the conflicting evidence presented the jury might have found in favor of either party." Those of the alleged errors in refusing to charge as requested which require notice are sufficiently considered in discussing the exceptions to the charge itself.

First, regarding the charge, error is predicated upon the statement of the court to the jury that the defendant was "liable for the management of his car by Caldwell upon the undisputed relations which existed between them." This statement was clearly warranted. Although it appeared that Caldwell was in the employ and pay of another person than the defendant, it was undisputed that at the time of the accident he was, aud for some weeks before had been, intrusted by the defendant with the running and management of his car, as chauffeurs ordinarily are by owners of automobiles. He seems to have differed from the ordinary chauffeur only in his inexperience. The defendant testified

(2) "The statute law of the state in force at the time of this accident made it the duty of the defendant, when he met the plaintiff, to slacken his speed, if necessary, and to seasonably turn to the right so as to give her one-half of the traveled path, if practicable, and a fair and equal opportunity to pass.” (3) * If you find that he (the defendant) was on the left-hand side of the street when the collision occurred, he failed to perform a duty which he owed, by positive statute, to the plaintiff, and you should find him negligent in that one of the respects alleged in the complaint, unless you find that he was coming into a side street from an intersecting street, and had not had time to get over to the right-hand side of the street.

*

(4) "When a collision occurs, the fact that a person is on the wrong side of the road is prima facie evidence of negligence."

(5) "But if you find that he (the defendant) was driving at a high rate of speed at that time, then you must find that such act in itself was unlawful, and was therefore a negligent act."

(6) "No matter how great the rate of speed allowed by law, the operator remains bound to anticipate that he may meet persons or vehicles on a public street, and he must keep his machine under such control as will enable him to avoid a collision."

The statute law thus referred to in the charge, and in force at the time of the accident, provides that when a person driving or operating a vehicle in a highway (and the word "vehicle" by the language of the statute is made to include both automobiles and bicycles) "shall meet another person thus driving or operating a vehicle, if such persons are moving in opposite directions, each shall slacken his pace if necessary and seasonably turn to the right, so as to give half of the traveled road if practicable, and a fair and equal opportunity to pass, to the other * * *"; and that "any such person shall, at the intersection of public highways, keep to the right of the intersection of the centers of such highways when

of such intersection when turning to the
left," and that every person who, by neg-
lecting to conform to such rule, "shall cause
any injury to the person or property of an-
other or shall negligently collide with an-
other
* Ishall pay to the party in-
jured treble damages and costs," and that
if the owner of such vehicle shall intrust it
to his "agent, servant or employé," to be
operated by him upon the highway, and such
agent, servant or employe "while in the
execution of such owner's business, within
the scope of his authority," shall by neglect
ing to conform to such rule, cause injury to
another's property or negligently collide with
him, such owner shall pay the injured party
his actual damages and costs. The act also
imposes a punishment by fine for the viola-
tion of certain of its provisions. Pub. Acts
1905, p 412, c. 216.

that one may not lawfully travel upon the left-hand side of the road, and further that the jury were not properly informed what was meant by the wrong side of the road. The trial judge had previously charged the jury, just as the defendant had requested, that the law did not require a person to travel on his right-hand side of the road, but did require him to turn to his right upon meeting a person or team. The remarks of the court in these paragraphs concerning the "left-hand side of the street," and on the "wrong side of the road," were expressly confined to the position of the defendant at the time of the collision. If the collision occurred at the place and in the manner claimed by the defendant, the jury could not, under the instructions given, have found that he was on the wrong side of the road. If it occurred at the point where the plaintiff and some of her witnesses testified it did, the defendant was on his left-hand side that is, the west side of the middle line of North Main street, and therefore did not give to the plaintiff that part of the traveled road which the statute required him to give her, if practicable. That it was practicable to give her "half of the traveled road and a fair and equal opportunity to pass" is unquestioned. The court told the jury that it was "agreed that the street was wide enough for both parties to have passed, and that there was no obstruction that made it impracticable for the defendant to give the "plaintiff one-half the traveled path." If the defendant turned from West Washington street sharply to the left hand, or west side of North Main street, as the jury evidently found he did, he failed to perform a duty which the law clearly imposed upon him, and he was therefore guilty of negligence. such violation of duty was one of the causes of the plaintiff's injury, as under the charge of the trial judge we think the jury must have found it was, that negligence was clearly actionable negligence.

Sections 10, 11, and 14 of chapter 230, pp. 426, 427, Acts 1905, further provide that no person shall "operate a motor vehicle on the public highways of this state at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property or the life or limb of any person, or in any event, within the limits of any city or borough, at a greater rate of speed than one mile in five minutes," and that upon approaching "a crossing of intersecting highways the person operating a motor vehicle shall have the same under control, and shall reduce its speed, and impose a penalty by fine and imprisonment for the violation of said provisions.

The provisions of the two chapters cited are intended to regulate the conduct of persons moving in the traveled portion of a public highway in passing each other, when going in opposite directions, when going in the same direction, and when approaching the crossings of intersecting highways. The ground of the present action is the alleged failure of the defendant to seasonably turn to the right, when he and the plaintiff approached each other, moving in opposite directions on North Main street, and the driving of his car by the defendant at a high rate of speed at the time of the collision. The complaint contains no reference to any intersection of streets or to any misconduct of the defendant upon approaching a crossing. The second quoted paragraph of the charge correctly stated the duty of the defendant as fixed by the statute. It is not open to the criticism that it placed the entire burden of avoiding the collision upon the defendant. The court had already defined the duties of the plaintiff, practically as requested by the defendant, and had instructed the jury that she could not recover if the accident was caused by her failure to perform them.

The defendant complains of the language of said paragraphs 3 and 4 of the charge,

If

As we understand the defendant's objections to paragraphs 5 and 6 of the charge, they are that the trial judge failed to inform the jury what was meant by a high rate of speed, and also erroneously instructed the jury that driving the automobile at a high rate of speed was in itself negligence. In other parts of the charge the trial judge sufficiently defined a high rate of speed by saying, in effect, that it was an unreasonable one, considering the time and place, and one which prevented the defendant from controlling his machine so as to avoid the collision, even though it was less than the maximum statutory rate within the limits of a city. These instructions were correct. In fixing the maximum rate within a city at 12 miles an hour, the statute does not purport to establish a rate of speed which will be lawful under all circumstances. To op

(81 Conn. 479)

plaintiff's demand, and, where more money has WOODBRIDGE ICE CO. v. SEMON ICE been paid than the ice was worth, defendant

CREAM CORPORATION.

(Supreme Court of Errors of Connecticut. Jan. 6, 1909.)

1. SALES (8 363*)-MODIFICATION-ASSENT OF PARTIES QUESTION FOR JURY.

If plaintiff agreed to sell defendant ice for a stated period at a certain price, plaintiff alone could not modify the contract, without defendant's assent thereto, by notifying defendant that a different price would be charged, and the latter's acceptance of the ice and payment of the increased price did not, as a matter of law, operate to modify the contract. [Ed. Note. For other cases, see Sales, Dec. Dig. 363.*]

may recover for overpayment, was erroneous, as it permitted defendant to recoup not only for the defective quality of the ice, but to recover for overpayments not alleged in the an

swer.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1066; Dec. Dig. 364.*] 8. APPEAL AND ERROR (§ 1064*)-HARMLESS ERROR-PREJUDICIAL EFFECT.

That an instruction, allowing defendant to recover a greater amount than claimed in his answer, was prejudicial, was shown by the fact that the verdict was excessive.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1064.*]

RATIONS.

9. EVIDENCE (§ 271*)-SELF-SERVING DECLAIn an action for the price of ice, where defendant claimed that the ice furnished was of quality, testimony that defendant's agent had told witness that plaintiff was robbing him, and he would not pay his bill, was inadmissible as a self-serving declaration made in plaintiff's absence.

2. SALES (8 359*)-MODIFICATION-EVIDENCE.
Where plaintiff, after agreeing to sell de-
fendant ice for a year at a certain price, noti-
fied him that an increased price would be there-inferior
after charged, defendant's acceptance of the ice
and payment of the increased price was strong
evidence of a modification of the original con-
tract.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 359.*]

3. PLEADING (8 409*)-DEFECTS-WAIVER OF OBJECTION.

In an action for the price of ice sold, where the answer alleged a contract to sell ice for a year at a certain price, but failed to allege that defendant agreed to take the ice for that period, the defect should have been brought to the court's attention by demurrer or objection to evidence of the contract, and not by a requested charge taking from the jury all evidence of the contract.

[Ed. Note. For other cases, see Pleading, Dec. Dig. § 409.*]

4. PLEADING (§ 11*)-MATTERS OF EVIDENCE. Where in an action for the price of ice sold, defendant claimed that the price agreed upon was less than that charged, a general allegation in the answer that plaintiff agreed to sell defendant ice for a year at a certain price was sufficient, without alleging that defendant promised to take ice for a year and pay for it; that being a matter of proof.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 31; Dec. Dig. § 11.*] 5. APPEAL AND ERROR (§ 884*)-REVIEW-ESTOPPEL TO ALLEGE ERROR.

Where an instruction requested by appellant, assumed that a contract set up in appellee's answer was valid, appellant's contention on appeal that the contract was invalid will not be considered.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 1087; Dec. Dig. § 271.*] 10. EVIDENCE (§ 271*)-Self-Serving Decla

RATIONS.

In an action for the price of ice, where defendant claimed that the ice furnished was of poor quality, testimony that defendant had called the attention of various persons, some of whom were not witnesses, to the poor qual ity of the ice, and that he had called nearly everybody's attention to it, was inadmissible to prove the quality of the ice.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1068-1085; Dec. Dig. § 271.*] 11. SALES (§ 358*)-MODIFICATION OF CONTRACT EVIDENCE.

In an action for the price of ice, where defendant claimed that the parties had contracted for a lower price than that charged, testimony of defendant's agent that he stated to plaintiff's agent, on being notified of the increased price, that defendant was a poor man, and the increase would ruin him, and that plaintiff had a combination, etc., was not admissible to show that defendant paid the increased price under protest and without waiving the contract.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 358.*]

12. APPEAL AND ERROR (§ 1050*)—HARMLESS ERROR-ADMISSION OF EVIDENCE.

Irrelevant testimony in reference to the poverty of the prevailing party is ground for [Ed. Note. For other cases, see Appeal and reversal, since it tends to prejudice the jury Error, Dec. Dig. § 884.*]

[Ed. Note. For other cases, see Sales, Cent. Dig. § 41, 42; Dec. Dig. § 22.*]

7. SALES (8 364*)-ACTION FOR PRICE-COUNTERCLAIM-INSTRUCTIONS.

and improperly arouse its sympathy.
[Ed. Note.-For other cases, see Appeal and
Error, Dec. Dig. § 1050.*]

Appeal from Superior Court, New Haven
County; Joel H. Reed, Judge.

Action by the Woodbridge Ice Company against the Semon Ice Cream Corporation. From a judgment for defendant on its counterclaim, plaintiff appeals. Reversed, and new trial ordered.

E. P. Arvine, Albert D. Penney, David E. Fitzgerald, and Walter J. Walsh, for appellant. Richard H. Tyner, for appellee.

Where defendant, in an action for the price of ice, claimed damages for no more than the difference between the value of the ice delivered and that which should have been delivered, an instruction that defendant could THAYER, J. This is an action upon the show any defects in the ice in mitigation of common counts with a bill of particulars For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes