In a petition for rehearing the appellant's counsel direct attention to the fact that the foregoing opinion does not dispose of their contention that the court erred in declining to give requested instructions on the question of negligence. It is said that the court entirely failed to instruct the jury on the question of negligence and it was therefore error to decline to give the requested instructions which properly stated the law. In the course of the charge the court said:
"Everybody traveling upon the highway in an automobile or any other vehicle, but we are dealing with automobiles now, must be certain that his automobile is in fit condition to travel upon the highway, and he must have it well under control; must take into consideration the kind and character of highway he is traveling over, the width of the road, and the condition of the road; the condition of the day or night, and the condition as to light or darkness, and take into view all other circumstances and conditions that surround him in traveling upon the highway, and must handle his automobile and drive it at a speed in consideration of all these circumstances and conditions, as an ordinarily prudent man would do, under the same circumstances and conditions."
While the above charge is not given as a definition of the term "negligence," it nevertheless states with substantial correctness the legal duty of the driver of an automobile upon the highway. This, in connection with other portions of the charge, lays down the test according to which the liability of the defendant is to be determined and imposes upon the plaintiff the burden of establishing a breach of duty resulting in liability.
The petition for rehearing is denied.
CHRISTIANSON, Ch. J., and BURR, NUESSLE and BURKE, JJ., concur. *Page 563