VINCENT, J. This is an action for the to the general treasurer a tax of one per cenrecovery of a tax paid by the plaintiff, un- tum, and every other insurance company incorder protest, to Walter L. Clarke, city treas-porated and doing business in this state shall annually, on the first Monday in April, pay to the urer of the city of Providence. The defend- general treasurer a tax of two per centum, on ant demurred to the original declaration, the premiums and assessments received by such and an amended declaration was filed by the company during the year ending on the thirtyfirst day of December next preceding (without plaintiff on the 22d day of December, 1916. any deduction for dividends or unearned premiOn January 15, 1917, the defendant called ums applied in part payment of such premiums to the attention of the court that the consti- or returned to policy holders in cash or otherwise), on property and upon the lives of individtutionality of an act of the General Assembly uals insured by such company within the state, had been brought in question upon the rec- and on property and upon the lives of individuals ord, and on the same day the case was certi- insured by such company in any other state on which such company has not paid, and is not fied to this court, under section 1 of chapter liable to pay a tax to such other state: Provid298 of the General Laws of 1909, for the deed, that such companies issuing the standard termination of such constitutional question. The question raised by the pleadings and stated by the parties is as follows:

larger than that of the stock fire insurance | 3. STREET RAILROADS 118(3)—INJURY TO companies which compete with the plaintiff AUTOMOBILE-INSTRUCTION.

in the same class and character of business, and that the record is not complete on the point of discrimination until the plaintiff has shown this and has been permitted to

show it.

damage to plaintiff's automobile when it was In an action against a street railroad for run into by a runaway horse frightened when the team it drew was struck by defendant's electric car, the court informed the jury that there was a law requiring the driver of the team to display lights on his vehicle, visible both in front and rear, but instructed that, even if the driver did violate the law, and was negligent the railroad company was negligent in running into the vehicle, so that both of them were guilty of negligence, plaintiff could, if it saw fit, hold the railroad company alone responsible, and the court also charged that the fact that there was no light on the vehicle might be taken into consideration in determining whether or not the motorman was guilty of negligence in running the matter in its proper light, and that the court into it. Held, that the charge as given presented properly refused to charge that it was the duty of the driver of the team to display lights in accordance with the provisions of the statute, as the jury might easily have been misled thereby. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 261.]

[2] In other words, the plaintiff's exception is directed to the refusal of the trial court to hear testimony, in aid of the record, aft-in operating the vehicle, and, at the same time, er the constitutionality of an act of the General Assembly has been brought in question and is ready for certification under the statute, on the ground that the record itself is insufficient to show the unconstitutional discrimination of which the plaintiff complains. We do not think that the plaintiff can be permitted to do this. In Blais v. Franklin, 30 R. I. 413, 75 Atl. 399, this court said:

"Whether a constitutional question is properly presented, and whether its determination is necessary for the disposition of the case, will be proper subjects for consideration at the time of hearing upon any constitutional question be fore this court.

The lower court should

not attempt to reform the question sought to be raised, but should take the same position with reference to this question that it takes in regard to other pleadings of the parties, transmitting them to this court, when required, in the same form in which they are filed.'

[3] We do not think that an objection taken to the certification of a cause to this court on a constitutional question can be properly presented by a bill of exceptions, but that such objection, if any there be, should be considered when the constitutional question is heard.

The plaintiff's bill of exceptions is dismissed, and the case will stand for hearing upon the constitutional questions.

(40 R. I. 232)

4. TRIAL 267(3)-ACTION FOR INJURIES— INSTRUCTIONS.

In such action defendant requested the court to charge that under the circumstances it was not the duty of the motorman to run his car so slowly as to be able to stop within the distance of the projection of the rays of the headlight, and that, if the motorman, after he saw the team on the track, did everything in his power, with the appliances at his command, to stop the car, he was not guilty of negligence, if he failthe jury in accordance with the first request, ed to stop it before collision. The court charged adding that they should find from all the evidence including the circumstance, taken in connection with all the other evidence, whether or not defendant was guilty of negligence, etc., and also charged the second request, adding that, if the motorman was guilty of no negligence at all, but was running the car down at the rate accident, and the only light was that of the headof five or six miles an hour at the time of the light, and he was guilty of no negligence, and did all he could to check the speed of the car as soon as he discovered the presence of the team, verdict should be for defendant, etc. Held, that the modifications or explanations accompanying the requests were sufficiently favorable

J. SAMUELS & BRO., Inc., v. RHODE IS- to defendant.
LAND CO. (No. 5007.)

(Supreme Court of Rhode Island. April 4,

1917.)

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 672.]

5. STREET RAILROADS 112(1)-AccIDENT ON TRACKS-NEGLIGENCE-BURDEN OF PROOF.

In an action against a street railroad for damage to plaintiff's automobile when it was run into by a runaway horse frightened when the team it drew was struck by defendant's electric car, the accident having taken place in a city street, the burden was on the street railroad to explain that the collision was not the result of negligence on the part of its motorman. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 227, 228.]

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by J. Samuels & Bro., Incorporated, against the Rhode Island Company. There was verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted for entry of judgment on the verdict.

Boss & Barnefield, of Providence, for plaintiff. Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

BAKER, J. On the night of January 13, 1915, between half past 9 and 10 o'clock, the plaintiff's automobile was being driven by an employé in a southerly direction on Broad street near Norwood avenue, in the city of Cranston. A runaway horse came along the street in a northerly direction, ran into the automobile, and damaged it to the amount (it is agreed) of $39.90. Just before this occurrence the horse had been attached to a wagon owned by a Mrs. McCarron, and driven by one John Nichols. The team was used at the time to carry wire and the tools and implements of employés of the Narragansett Electric Lighting Company. A severe storm had been in progress during the day, wires had been broken down, and on the evening in question all of the street lights were out and it was dark, "very dark," one witness said. There had been quite a heavy fall of snow, and the going was difficult. The two car tracks were cleared, thereby causing the snow to be gathered in greater quantity in the roadway. One witness says it might be two or three feet deep at the place of the accident. Nichols was driving the horse in the right

hand car track towards Providence, when his wagon was struck in the rear by a car of the defendant, by which collision he was thrown off into the snow, the horse was thrown down, which then freed himself from the wagon and ran away with the result already described. The front axle of the wagon was broken. The driver heard no gong, no shouting, did not look behind, and was not aware of the approach of the car till it hit the wagon. Among other things on the wagon was an extension ladder, which ex

a very fast rate of speed, and the first thing I noticed was what I supposed was the driver running from the sidewalk. I thought at that time that he wanted to board the car. I started to bring my car down and I noticed an object. Of course, I did not see the ladder projecting from the rear end; that is all we hit of the team; it was the ladder we hit:" that the car went "possibly six feet after hitting the ladder."

twelve or fifteen feet from the object when He says he was looking ahead, and was he first noticed it, and that at the time the car was going "five or six or seven miles an hour." The headlight shone on the track, but he could not say how many feet ahead of the car the reflection extended. The conductor says that just before the accident they were going about twelve or fifteen miles an hour, and when they appeared to come to a stop they were going about five or six miles also says that after the accident, the tail end of the wagon was about three feet in front of the car, right on the track, and the ladder then extended about four feet out from the rear end of the wagon. He heard no "hollering" before the accident.

an hour. He stood in the rear vestibule. He

At the trial of the case in the superior court the jury returned a verdict for the plaintiff for $39.90, and the case is here on

defendant's bill of exceptions.

The exceptions pressed are five in number, namely:

[1, 2] 1. The refusal of the justice presiding at the trial to direct a verdict for the defendant. This was a collision in a city street in which a wagon on the car track was run into from behind. The existing conditions were unusual owing to the absence of all street lighting on a dark evening, and the accumulation of snow in the streets outside

of the car tracks. The circumstances imposed more than ordinary care upon those

operating cars and other vehicles upon the

Atl. 817; Pawtucket Baking Co. v. Rhode Island Co., 32 R. I. 517, 80 Atl. 665; Galvin v. Rhode Island Co., 34 R. I. 283, 83 Atl. 330. [3] 2. The defendant excepts to the court's refusal to charge the jury as follows:

tended a few feet back of the rear of the wagon, two witnesses saying four or five street. While there is little conflict in the feet, and one of them (the driver) in crossexamination "between five and ten," and then the collision resulted from the negligent and testimony, we think the question of whether said, "Yes, sir" to this question, "But the fact careless operation of the car by defendant's is it extended about twelve or fifteen feet servant was properly submitted to the jury, beyond the rear of the wagon; isn't that so?" and that there was no error in denying the The wagon carried no lights. Two of the motion. Jenison v. R. I. Sub. Ry. Co., 67 employés of the Narragansett Electric Light-Atl. 367; Oliveira v. Rhode Island Co., 72 ing Company were walking along on the sidewalk near the wagon, but some distance behind it. They heard no gong, but saw and heard the car and "hollered" at the motorman, when they saw that he was coming so close to the wagon. One of them says he "banged into the team" and threw the horse down. The motorman and conductor both say that there were no passengers on the car at the time of the accident. The former stated that the headlight of the car was lighted, as did also the two men on the sidewalk, one of whom said it was shining as bright as usual. The motorman gives this account of what happened:

"I had stopped at a white pole at the street below to pick up some passengers. They didn't want to ride. Of course, I was not running at

"(1) Under the circumstances of time and place it was the duty of the driver of the team to display one or more lights on his vehicle, visible both in front and in the rear, in accordance with the provisions of chapter 1028 of the Public Laws of 1914."

While the judge did not read this request to the jury, he did inform them that there was such a law, but instructed them that, even if the driver did violate this law and was negligent in operating his vehicle, and at the same time the railroad company was guilty of negligence in running into the ve

hicle, and therefore both of them guilty of | verdict should be for the defendant. As I have negligence, then the plaintiff could, if it saw fit, hold the company alone responsible. He had previously said:

"It would be simply a case, under those circumstances, of an accident occurring through the concurring negligence of two parties, and in a case of that kind the party who receives the injury, if the concurring negligence that is, if the negligence of each one, is the proximate cause, and both concurred, and neither one proximate to the other, but both concurring in causing the accident, then the party who is injured can maintain his action against either one or both." Volume 21, Am. & Eng. Ency. of Law, 496.

See, also, Lee v. Union Railroad Co., 12 R. I. 383, 34 Am. Rep. 668.

The court did, however, instruct the jury that the fact that there was no light on the vehicle might be taken into consideration by them in determining whether or not the motorman was guilty of negligence in running into the wagon. We are of the opinion that it was not error to refuse to give the charge requested, as the jury might easily have been misled thereby as to the real issue, and that the charge as given presented the matter in its proper light.

[4] 3. The next exception is to the modification or explanation by the court of two requests to charge by the defendant. The requests and the comments of the court are given as they appear in the transcript, as follows:

"The Court: The second I will give you, and it is as follows: '(2) Under the circumstances of this case as to time and place it was not the duty of defendant's motorman to run his car so slowly as to be able to stop his car within the distance of the projection of the rays of the headlight of the car.'

already said, the plaintiff can only recover in case this car was operated in a negligent manner, and by reason of that negligence this accident occurred to the plaintiff's automobile by reason of the fact that the collision occurred, the horse pulling the vehicle was caused to run away and come in contact with the automobile of the plaintiff."

Request 2 is apparently based upon Vizacchero v. Rhode Island Co., 26 R. I. 392, 59 Atl. 105, 69 L. R. A. 188. That was an accident "upon a sparsely-settled country road" in the nighttime, and the court announced as applicable to the circumstances of that case the rule substantially embodied in this request. It is plainly implied in that case, however, that such rule is not applicable to all conditions.

We think the modifications or explanations accompanying these requests were sufficiently favorable to the defendant.

4. The next exception covers two matters and was taken as appears by the transcript as follows:

"Will your honor note my exception to that portion of the charge that has to do with the duty of the person driving the team to look in the rear, and to that part of the charge which has to do with the burden of proof shifting from the plaintiff to the defendant in cases where a rear-end collision is made out, the burden of proof to explain the occurrence of the accident?"

The duty of the driver as to looking behind him was referred to in the charge thus:

"The person driving along the track is not bound to look behind him all the time. His place is to look ahead and see that he does not run into somebody there. He is not bound to ride backwards so as to watch the approaching car."

Some cases are cited by the defendant in "The Court: I so charge you, that is, the which it is held that the driver of a vehicle mere fact that he did not run the car so slowly on a city street car track should "look bethat it could be stopped within the distance that hind him from time to time," among them the rays of the headlight throw light, does not, as a matter of law, establish negligence, but Adolph v. Central P. N. & E. River R. R. you will find from all the evidence in this case Co., 76 N. Y. 530. We do not deem it neceswhether or not that circumstance, taken in con- sary, however, in this case to pass on the nection with all the other evidence in the case, whether or not the defendant was guilty of point thus attempted to be raised, for the negligence in the matter. Of course, the motor- reason that the court, as already stated, had man is bound to take cognizance of the condi- very fully and clearly charged the jury that tions that prevailed there at that time. It was in order for the plaintiff to recover they a dark night, snow was on the street, vehicles might reasonably be expected to pass back and must find the defendant guilty of negligence forth, and vehicles could not well pass along in causing the injury to plaintiff's automothe street in the deep snow, and that there bile, irrespective of whether or not the drivfore they might be very likely found moving along on the track, and all those things should beer was also guilty of negligence contributing taken into consideration together with all the thereto. rest of the evidence in the case, as bearing upon the question of whether or not the defendant was guilty of negligence in this case."

"The third is granted and is as follows: (3) If defendant's motorman, after he saw the team upon the track, did everything in his power with the appliances at his command to stop the car, he was not guilty of negligence if he fail ed to stop it before colliding with the team.'

"The Court: Of course, if the person in charge of the car was guilty of no negligence at all, but was running the car down at the rate of five or six miles an hour at the time of the accident, and the only light was that of the headlight, and he was guilty of no negligence in that manner, and as soon as he discovered the presence of the vehicle he did all he could to check the speed of the car and avert the acci

[5] The defendant does not clearly point out the portion of the charge relating to the duty of the operator of a street car to explain why he ran into a vehicle proceeding along on the car track in front of the car. We presume that this may be the part object

ed to.

"If a collision of that kind does occur, the burden is upon the defendant to explain in some way that the collision was not the result of negligence on the part of the one in charge of that car, and if they did not explain to your satisfaction the circumstances which freed them from the imputation of negligence by reason of that collision, you would be warranted in finding that the collision occurred by reason of the neg

The plaintiff and defendant both cite Fa-1 their closing to guard against accident to those gan v. Rhode Island Co., 27 R. I. 51, 60 Atl. entering the inclosure through narrow runways. [Ed. Note.-For other cases, 672. That was a head-on collision at midsee Carriers, Cent. Dig. §§ 1363-1366.] night on a country road, in which a street 3. CARRIERS 347(3) INJURY TO PROSPECcar ran into a team on the car track going TIVE PASSENGER CONTRIBUTORY NEGLIin the opposite direction. The driver of the GENCE QUESTION FOR JURY. team was asleep. The only testimony as to In an action against a street railroad for inthe cause of the accident was that of the juries to plaintiff when she was struck and caught by a gate operating on rollers in a picket motorman, who said that he saw ahead clear fence erected by the road about its loop, question of the track what appeared to be a pair of whether plaintiff was negligent in not seeing the horses followed by a covered wagon; that gate approaching her before it struck her held for the jury under plaintiff's testimony showing suddenly, when close to the car, the team that she was walking in a natural manner turned in upon the track, and the collision through the runway and the gateway, and when could not then be avoided by him. We think in the gateway itself the gate without any warnthe facts in the Fagan Case and in the three ing was closed suddenly, rapidly, and with great other cases cited on this point by the de[Ed. Note.-For other cases, see Carriers, fendant are not sufficiently like those in the Cent. Dig. §§ 1355, 1356, 1363-1366, 1402.] case at bar as to render them in point. In Exceptions from Superior Court, Provithe Fagan Case, supra, this court, in speak-dence and Bristol Counties; George T. Brown, ing of the "implication of negligence" arising in certain circumstances, said:

"If the collision had been with a team in a frequented city street, where care is always necessary to avoid collisions and where proper care will generally avoid them, the implication would arise that proper care had not been used, and the burden would have been upon the company to show that it had not been negligent."

See, also, Vincent v. Norton & Taunton St. Railway, 180 Mass. 104, 61 N. E. 822; 27 Am. & Eng. Ency. of Law, 71.

We think the instruction given was proper. 5. This exception was taken to the denial of defendant's motion for a new trial: (a)

Because contrary to the evidence; (b) be

cause contrary to the law. For reasons already indicated this exception is overruled. We have examined all the cases cited in defendant's brief, but have not deemed it necessary to discuss them further than we have already done in this opinion.

The defendant's exceptions are all overruled, and the case is remitted to the superior court for the entry of judgment on the verdict.

EARLEY v. RHODE ISLAND CO. (No. 5026.)

(Supreme Court of Rhode Island. April 4, 1917.)

1. APPEAL AND ERROR 930(1)-CONSIDERATION OF EVIDENCE.

In passing upon the question whether the evidence as matter of law shows that plaintiff was guilty of contributory negligence, the evidence must be considered as favorably to plaintiff as reasonable men could fairly regard it.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3755, 3756, 3758.] 2. CARRIERS 327-INJURY TO PROSPECTIVE PASSENGER-DUTY OF PASSENGER.

In going through a gate in a picket fence maintained by a street railroad about its loop, it was not the duty of plaintiff to watch the gate lest it close suddenly without warning and hit and injure her, since plaintiff, as a prospective passenger, had a right to rely upon the road's adopting all necessary and reasonable precautions in the operation and control of the gates, and upon its giving suitable notice or warning of

force.

Judge.

Action by Rose A. Earley against the Rhode Island Company. There was verdict for plaintiff, and to an order granting her new trial on all the issues, defendant excepts. Exceptions overruled, and case remitted for new trial.

Cooney & Cahill, of Providence, for plaintiff. Clifford Whipple and Alonzo R. Williams, both of Providence, for defendant.

PER CURIAM. This is an action of tres

pass on the case to recover damages for injuries alleged to have been caused by the negligence of the defendant's servant and agent. Between 6 and 7 o'clock in the afternoon of July 4, 1913, the plaintiff, who was then 21 years of age, in company with her mother and brother, went to Rocky Point by means of the defendant's cars. While there they met a Mr. Buffington, a friend of the plaintiff. Shortly after 9 o'clock the four started to return to Providence by defendant's cars. At Rocky Point the car tracks form a loop. To facilitate the safe handling of its passenger traffic the defendant had erected around the whole loop a high picket fence. In this fence were several gates in charge of employés of the defendant who opened and closed them so as to regulate the number of passengers entering the loop from time to time. The fence in its construction conformed to the loop. The gate in the fence, which now concerns us, was a wooden picket gate, and the bottom of the pickets ran in a groove in the ground. At the top of the gate were wheels which ran along on an iron rod or track, and the gate was accordingly a sliding one. When closed it came up against a post, on the other side of which was another gate of similar construction. The gate in question was 9 feet and 104 inches long, and 7 feet and 9 inches high. In opening this gate moved from west to east, and in closing from east to west. Perpendicular to the opening across the end of which the gate ran were constructed three passageways or run