(108 A.) signify for what period; that shortly thereafter four men came into the garage, one of whom claimed to be the owner of the car, describing it, and asked for it; that the employé in charge of the garage, after asking him certain questions to establish his familiarity with the car, and after requiring him to stand in a light so that he would know him again, permitted him to take the car out.

(8) An individual or corporation is liable for negligence of a servant. Pusey v. Webb, 2 Pennewill, 490, 47 Atl. 701; Wilson v. Rockland Manufacturing Co., 2 Har. 67; Garrett v. People's Railway Co., 6 Pennewill, 31, 64 Atl. 254. See 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 322, Ann. Cas. 1913E, 823.

Evidence was introduced by both sides as to the value of the car at the time it was left in the garage, and also as to the extent of the damages resulting from the injuries to the car.

Plaintiff's Prayers.

(9) While the general rule is that negligence is never to be presumed, but must be proved like any other substantive fact, when the burden of proof is upon the plaintiff, where the property is damaged or injured while in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injury was not occasioned by negligence of himself or his servants or agents. Pusey v. Webb, 2 Pennewill, 490, 494, 47 Atl. 701; Bowen v.

(1) If a person receives property as a bailee, and such property is damaged or injured while in his possession and by the neg-Isenberg, 6 Pennewill, 230, 231, 67 Atl. 152; ligent conduct or carelessness of the bailee, his servant or agent, he is liable for such damage or injury. Pusey v. Webb, 2 Pennewill, 490, 47 Atl. 701; Bowen v. Isenberg, 6 Pennewill, 230, 67 Atl. 152.

(2) Negligence is the failure to use such care as a reasonably prudent and careful person would exercise under similar circumstances. Garrett v. People's Railway Co., 6 Pennewill, 31, 64 Atl. 254; Keith Co. v. Booth Fisheries Co., 4 Boyce, 231, 87 Atl. 715.

(3) A garage keeper is bound to exercise reasonable or ordinary care to protect from injury automobiles left by their owners at his garage for hire. McLain v. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. A. (N. S.) 561, Ann. Cas. 1915D, 956; Firemen's Fund Insurance Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823.

(4) It is not ordinary or reasonable care for one charged with the safe-keeping of an automobile in a garage to allow it to go out on the road in the hands of a third party without the owner's consent. McLain V. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. A. 564, Ann. Cas. 1915D, 956.

3

(5) Every bailee is bound at his peril to know that the person to whom he delivers the chattel is the proper person to receive it, and if he delivers it to the wrong person, though acting in perfect good faith, he is, nevertheless, liable for its conversion. Amer. & Eng. Ency. of Law (2d Ed.) 754. (6) The only surrender of an automobile that a garage keeper can rightfully make is on the order of the owner, expressed or reasonably implied.

(7) In case of bailment for hire without an express undertaking to keep safely the bailee is still liable for neglect. Vaughan v. Webster, 5 Har. 256; McLain v. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. A. 561, 564, Ann. Cas. 1915D, 956.

Stone v. Case, 34 Okl. 5, 124 Pac. 960, 43
L. R. A. (N. S.) 1169.

(10) The general rule of law is that where property is delivered to a bailee and the latter fails to return it on demand, or if property was delivered to the bailee in good condition and was returned damaged in such a way as does not usually occur by the exercise of proper care, a prima facie case is made out against the bailee and negligence will be presumed. 34 Okl. 5, 124 Pac. 960, 43 L. R. A. (N. S.) 1169; Russell v. Fagan, 7 Houst. 389, 396, 8 Atl. 258; 6 C. J. 1158 (§ 160).

(11) The measure of damages in such cases, according to the laws of this state, is the difference between the value of the automobile in its damaged state and its value before it was damaged, with interest from the date of such damage, and also such reasonable sum as the plaintiff may have expended incident to such accident, the rule being that the injured party ought to be put in the same condition, so far as money can do it, as though the accident had never happened or had been instantly repaired. Keith v. Booth Fisheries Co., 4 Boyce, 231, 232, 87 Atl. 715; Schelich v. Wilmington, 1 Boyce, 57, 60, 74 Atl. 367; Garrett v. People's Railway Co., 6 Pennewill, 29, 35, 64 Atl. 254; 8 Thompson on Negligence, 7242.

Defendant's Prayers.

(1) As to the law of bailment, as to what constitutes a bailment, and that there must have been a contract of bailment before the plaintiff can recover in this case.

(2) That, under the law of bailment, the bailee is obliged to use only the ordinary care of a prudent man, and that if the jury should, from the evidence, be satisfied that the automobile was taken in any way by the permission of plaintiff's agent, the plaintiff cannot recover.

(3) As to the measure of damages

(108 A.)

cows off the track, into and upon the travelHILL v. RHODE ISLAND CO. (No. 5254.) ed part of the highway, but was unable to do

(Supreme Court of Rhode Island.

1919.)

1. RAILROADS 446(11)-LIABILITY FOR INJURIES TO ANIMALS ON TRACK A JURY QUESTION.

SO. There was evidence on the part of the Nov. 14, plaintiff's hired man, who was in the barn at the time, that his attention was attracted to the car by the rays of its headlight, which shone into the barn as the car approached and rounded the curve, and that he ran out and saw the car approaching and rounding the curve, and that "the car was going just as fast as it could go"-that "it was going pretty fast; like lightning." There was further evidence that the headlight (a strong arc light), which was lighted on the car, shone at a tangent to the track in rounding the curve, thus leaving the track in darkness

In an action against a railroad company for damage to cows going on its track while driven along the adjoining highway, plaintiff's evidence on the issue of motorman's negligence in operating the car at a high speed as he was rounding a curve, which deprived him of the benefit of the headlight, held sufficient to take the case to the jury.

for a considerable distance ahead of the car;

2. APPEAL AND ERROR 1002-VERDICT ON that shortly after rounding the curve the

CONFLICTING EVIDENCE SUSTAINED.

car struck three cows in succession, knock

Verdict on conflicting evidence will not be ing them off the track and seriously injuring disturbed by the appellate court.

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

them; that it struck a fourth cow, and ran over and killed her, and when the car was finally stopped the cow killed was up against the wheels of the rear truck and was dead.

From all these facts it would be possible for the jury to infer negligence of the motorAction by George E. Hill against the Rhode man in approaching and rounding a curve at Island Company. Nonsuit was directed as a high and negligent rate of speed, at a moto the first count of the complaint, and there ment when he would be deprived of the benewas a verdict for plaintiff on the second, and fit of his headlight, entering upon a portion of both parties except. Defendant's exception the track which would be so dark that he overruled, and case remitted to the superior | could not see any obstruction of the track in court, with directions to grant a new trial | time to avoid accident and injury. We are of as to the first count and enter judgment for plaintiff on the second.

Edward M. Sullivan and John J. Sullivan, both of Providence, for plaintiff.

Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

PER CURIAM. [1] As to the first count for damage done to cows: This court, after reading and due consideration of all the evidence, is of the opinion that the trial judge erred in directing a nonsuit at the close of the plaintiff's testimony. It appeared that the plaintiff after sunset was driving a herd of 35 or more cows in the highway in a westerly direction towards his barn; that the railroad track was laid at the extreme left, or southerly, side of the highway, and that no car was in sight at the time when the cows left their pasture and were driven up the highway towards the west: that some of the cows were on the track, and some on other parts of the highway; that at or near the barn, towards which the cows were being driven, there was a curve in the track; that at some distance down the track near a bridge the plaintiff first heard the noise of a car appoaching, and then and thereafter endeavored with the aid of his dog to get the

the opinion that all this was such evidence of negligence on the motorman's part as to require the defendant to enter upon its defense, and to explain and show all the facts which were peculiarly within its knowledge as to the speed of the car and the precautions, if any, which were taken. It was error to take the case from the jury, and to order a nonsuit as to the first count, and the plaintiff's exception on that point is sustained.

[2] As to the second count for killing the hog: There was evidence both as to defendant's negligence and as to contributory negligence of the plaintiff's servants in allowing the hog to go upon the track in front of an approaching car. It was properly submitted to the jury in a charge to which no exception was taken. There was sufficient evidence to support the verdict of the jury in favor of the plaintiff, and we find no error in the refusal of the trial judge to grant the defendant's motion for a new trial. The defendant's exception, based upon this ground, is overruled.

The case will be remitted to the superior court sitting in Providence county, with direction to grant a new trial on the first count and to enter judgment for the plaintiff upon the second count upon the verdict as rendered by the jury.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-5

(42 R. I. 389)

TROTTIER v. FOLEY. (No. 324.) (Supreme Court of Rhode Island. Nov. 7, 1919.)

On motion for reargument. nied.

only infer that, after hearing said testimony, the judge came to the conclusion that the garnishee in fact did owe to the defendant the sums of $14 and $18, respectively, as set forth in the decision. As stated in our rescript Motion de- (filed October 15, 1919):

For former opinion, see 107 Atl. 869. John L. Curran, of Providence, for petitioner.

Robinson & Robinson, of Providence, for respondent.

"The petitioner could have requested the judge to state in his decision the grounds thereof. See Gen. Laws R. I. 1909, c. 288, § 20. He has seen fit to bring the record here as it is, and there is nothing therein from which we can find any error of law subject to review."

Under the authority of Ashaway National PER CURIAM. After the rescript of this Bank v. Superior Court, 28 R. I. 355, 359, 67 court, filed October 15, 1919, upon the peti- Atl. 523, it was competent for the judge of tion of the garnishee, Original Bradford Soap the district court at any time to have amended Works, Incorporated, for a writ of error to his decision "in the interest of truth," by review the action of a judge of the district amplifying it, if necessary to conform to the court of the Sixth judicial district in charging statute, as of the date of the decision (Septhe garnishee, in which rescript this court tember 24). If that were done, it would then held that it could find no error upon the appear whether the decision was based wholly record, and ordered that the writ of error be upon facts, or upon conclusions of law. Upon abated, the petitioner, by leave of court, filed a writ of error this court considers only quesa motion for reargument. This court has tions of law; errors of fact are not thus reconsidered the grounds of that motion, and viewable. In the present state of the record finds nothing therein which in any wise we are unable to find any error of law to rechanges its opinion as expressed in its review. If, by addition to or amendment of script. In that rescript we said:

"The petitioner could have requested the judge to state in his decision the grounds thereof. See Gen. Laws R. I. 1909, c. 288, § 20."

Chapter 288, § 20, reads as follows:

the decision, it shall hereafter be made to appear that any question of law is involved, such question may be reviewed upon another writ of error.

The motion for reargument is denied.

(42 R. I. 394) PUBLIC UTILITIES COMMISSION v. RHODE ISLAND CO.

"Sec. 20. In every case tried by the district court, or by the superior court without the intervention of a jury, the court deciding the same shall briefly note its conclusions of law and fact on its docket, or file the same with the papers in the case, and such record shall Appeals of TOWN OF WEST WARWICK be known as a decision."

et al. (Nos. 325-333.)

1919.)

The decision noted by the judge on the (Supreme Court of Rhode Island. back of the writ and thus filed "with the papers in the case" is as follows:

"September 24, 1919. On motion and proof judgment is entered for the plaintiff for $10.25 and costs, the garnishee charged to the extent of $14 on the original attachment, and to the extent of $18 on the attachment by mesne pro

cess.

Frederick Rueckert, Justice."

It appears in the papers that the treasurer of the garnishee was summoned by writ of subpœna duces tecum to appear with books and papers, etc., to testify before the court on September 24, 1919, but no record of such testimony appears in the papers, and the only

Nov. 14,

CARRIERS 18(2)—APPEAL BY CITY FROM OR

DER FIXING RATES NOT A STAY.

Where a carrier is in the hands of the receiver and on account of a strike there are no funds to operate, on appeal by cities from order by the Public Utilities Commission increasing the rates, the court will order, under Pub. Utilities Act, § 35, that the appeals shall not operate as a stay of the order fixing the rates, although it is argued that the order increasing the rate of fares was unjust and discriminative, the commission in making such orders not attempting to raise the fares so that a return be given to the capital investment; purpose being to deal with an emergency.

Vincent, J., dissenting.

Heard on motion of the Rhode Island Com

record which appears in the papers is the decision quoted above. We are led to infer that the garnishee's treasurer did appear and testify, and that the judge made his decision on September 24, 1919, after hearing such pany that appeals do not operate as a stay of testimony; but no record appears, other than an order of the Public Utilities Commission. that decision, which shows what the judge's On petition by the Rhode Island Company "conclusions of law and fact" were. We can the Public Utilities Commission approved of

(108 A.)

increased passenger rates, and the town of West Warwick, the city of Cranston, the town of Cumberland, the town of Warwick, the town of Johnston, the town of Burrillville, the town of East Greenwich, the city of Pawtucket and the town of North Providence severally appealed. Thereupon the Rhode Island Company, the Supreme Court not be ing in session, presented to a single justice a motion praying that the appeals would not operate as a stay of the order of the Public Utilities Commission, and that motion being granted, the several appellants applied for a vacation thereof, and their applications were directed (107 Atl. 871) to be set down for hearing. Ordered that none of the appeals should operate as a stay of the order of the commission.

John F. Murphy, Town Sol., of Providence,

for Town of West Warwick.

Frank H. Wildes, City Sol., of Providence, for City of Cranston.

Patrick E. Dillon, Town Sol., of Providence, for Town of Cumberland.

Harold R. Curtis, Town Sol., of Providence, for Town of Warwick.

James E. Dooley, Town Sol., of Providence,

for Town of Johnston.

John J. Lace, Jr., Town Sol., of Providence, for Town of Burrillville.

Alfred G. Chaffee, of Providence, for Town of East Greenwich.

til otherwise ordered by the commission." Said order increased the rates which said company was authorized to charge, and each of the above appellants duly appealed from said order to this court.

Section 35 of chapter 795 of the Public Laws (1911-1912) provides that every such appeal shall act as a stay of the order appealed from:

not in session, any justice of such court, may "Provided, that the court, or if the court is at any time order that such appeal shall not so operate if, in the opinion of such court, or justice, the appeal is brought for purposes of delay, or if justice, equity or public safety shall so require."

Each of the above appeals was taken at a time when this court was not in session and in connection with each appeal a separate order was entered by a single justice providing that such appeal shall not operate as a stay of said order of said commission. The full court, in an opinion filed October 20, 1919, 107 Atl. 871, held that the orders entered by a single justice operated only as a temporary stay of said order of said commission, and the motions of said company that said appeals should not operate as a stay of said order of said commission were heard, after notice to parties, de novo by the full court. At this hearing all parties were

James G. Connolly, City Sol., of Pawtucket represented and heard. The transcript of for City of Pawtucket.

Arthur Cushing, Town Sol., of Providence, for Town of North Providence.

Clifford Whipple, of Providence, and G. Frederick Frost, of Providence, for receivers of Nathaniel W. Smith, of Providence,

and Rhode Island Co.

Edwards & Angell, of Providence (Eugene A. Kingman, of Providence, of counsel), for receiver of United Traction & Electric Co.

RATHBUN, J. Heard on motion of the Rhode Island Company that the above appeals from an order of the Public Utilities Commission do not operate as a stay of said order.

evidence taken by the commission and the report of the commission were before the court. It appeared that a strike of the employés of the Rhode Island Company on July 19, 1919, for increased wages and improved working conditions resulted in a cessation of service until August 6, 1919, on which date the strike was settled. According to the report of the commission the strike caused a net loss to the company of $142,000; and the settlement agreement increased the annual wage charge $663,900. It appeared that before the commission entered said order increasing the rate of fares the necessary operating expenses of said company were greatly in excess of its receipts. It is manifest that receivers cannot long operate a railroad without funds.

The appellants objected to the granting of said motions and argued that the order increasing the rate of fares was unjust and discriminatory against the patrons of certain communities, and that the commission granted a greater increase in fares than was necessary.

On August 8, 1919, the Rhode Island Company by its receivers filed with the Public Utilities Commission a petition praying that an order be made modifying, in accordance with the plans set forth in said petition, the tariff rates then applying to said company. After an extended hearing, at which all parties interested were heard, said commission on September 23, 1919, entered an order that the Rhode Island Company file with the Public Utilities Commission tariff schedules, in accordance with a plan marked B, in modification of the tariff rates then in effect; "said tariffs to become effective upon three days' notice to the public and commission; that said tariffs so made effective shall be and remain effective during the continuance of the receivership of said company and un-service."

As this court said in Public Utilities Commission v. Rhode Island Co., 104 Atl. 690: determined by this court after a hearing upon "The force of these objections can only be the merits of the appeals. In the meantime it is essential to the welfare and safety of the various communities served by said company that there should be no interruption of that