The morning journal-courier., 1908-04-22


 against all dangers that might possI- bly, occur,
 I, The law Is SO that the plaintiff had as much right to the highway as the defendant had, and 1t was the duty of the defendant to so use his right as to not interfere with tho right of the plalntlff, and if he neglIgently failed in this, he is liable if his neg llsence caused the Injury complained Of and contributory negligence,
 Rights on Highway.
 ., An autumobilist has right to use the highway in proper and legal way, but his use of the highway is not greater or superior to that of an- other person on it, The right tD use q highway Is one common to all travellers and should be so exercised by each that tho just rights of others ire not interfcred with, and 1t was the duty of the automobilist as he ap- preached this cross street which inter- sected Campbell avenue, to have so had his machine under control that he could have stopped the same with In q reasonable distance in order to avoid injury to any person lawfully using the highway at the point where the injury happened (which this plaintiff was doIng)
 Avoiding Collisions.
 6. It was the duty of the driver or automobIlist to use such care, in view of all of tho attending circumstances, Including the duty to slow up or stop his machine If necessary, to avoid Il collision, or to avoid injury to per son lawfully crossing the highway.
 [. The plaintiff was justified In proceeding from the car from which he had alighted, and across the high he had reasonable grounds for be- lievng that he could do so in safety, and that those persons who were like ly to be on the highway and in charge of vehicles such as this defendant was in charge of. would act with reasona- ble regard to his rights, and that he would act with reasonable regard tO the rights of the other. The duty to slow up or stop If necessary to pre- vent a colliion, is duty which is encountered upon an automobllist, If necessary to avoid collision.
 Taking Chances.
 &. The automobiist had no right to calculate close chances as to his abIl- ty to pass the plaintiff without strlk- ing him, and thus throw the. risk of injury on the plaintiff, and it is ques- tion of fact whether or not the auto mohillst did push forward under such circumstances as left no time for cal- culatlon on the part of the plaintiff, and while pushing forward or running under such circumstances, injury re- suited to tho plaintiff as alleged.
 2. The plaintiff claims that the conduct of the defendant in not stop ping after he had injured The plain tiff. was presumptlve evidence of his inability to stop and an acknowledg- ment on his part that he was in fault and that his fault was the entire cause of the injury.
 10. It was tho duty of the auto mobilist or person in charge, of the automobile. to operate his automobile as reasonably prudent man would do, skilled in the operation of such vehicle. under likc circumstances. It was his duty to keep constant watch for pedestrians or vehicles which were on the highway at or near that DOT ton on which Inc was travelling, and he should not run his automobile or vehicle at q greater rate of speed than was reasonable and consistant with tho use of the highway, and par ticularly with the highway crossings used by the public twith safety)
 What the Pedestrians Must Do.
 II. There Is no law requiring a man in the lawful usc of public street, alichting from q car to go lo the cross walk. to stop and scan the entire length of a street before leav- ing the car. to look or listen to sec or hear if vehicle Is approaching, but such person is bound only to usc such care under all circumstances as a man of ordinary prudence would have cX- ercisod, and if tho jury find from the evidence that the plaintiff exercised such care at the time of, and preced- Ing the injury then he is not guilty of contributary negligence.
 H. If the jury find that the de- fandant operated his machine at such Il high rate of speed. for tho time and place, as to constitute negligence, and that such negligence was the sole and approximate cause of the plain tiff's injuries. without contrihutary negligence, then tho verdict must be for the plaintiff.
 Is. If the jury find that the de- fondant could have seen the plaintiffs peril and danger in time to have avoided and prevented tho accident, and that tho defendant was negligent in failing SO to do, and that such neg ligonce was the approximate and sole cause of tho plaintiffs injuries, then the verdict should be for the plaintiff,
 
 WILL NOT INSTRUCT.