“Q. That was the reason you started to go around him ? A. Yes, sir. Q. Did he turn out? A. He never moved his team until I was up against the wagon, and he started to pull out his team.”
There was no room for controversy as to whether defendant, before undertaking to pass, was fully aware that
“Whenever a person in any vehicle shall approach from the rear upon the public highway and desire to pass, it shall be the duty of the driver or operator of such vehicle ahead to give one half of the beaten path thereof, upon proper signal or request, by turning to the right. The vehicle approaching from the rear shall turn to the left and shall not return to such road or path within less than thirty feet of the team or vehicle which has been passed; provided, however, that such vehicle need not give such right of way when it would jeopardize the safety of the driver or operator to do so. Failure to comply with the above shall be deemed a misdemeanor and punishable as such.”
This was followed by saying that:
“If defendant undertook to pass without signal or request, and the collision was in consequence of such omission, plaintiff, if without fault, was entitled to recover; but that, if signal- was given, and at a time and distance from plaintiff that it was reasonable to believe the plaintiff could and did hear the same, and you find the plaintiff could have given one half of the beaten path without jeopardizing the safety of the plaintiff, and you further find that plaintiff failed, on signal of defendant, to give one half of the beaten path, and you further find defendant, from the action and conduct of plaintiff, believed and had a right to believe that plaintiff was about to give one half of the beaten path, but did not do so, and the failure of plaintiff to respond to the signal of defendant and give one half of the beaten path was the cause of the accident, or contributed to the accident and injury to plaintiff, then plaintiff cannot recover in this action, and your verdict should be for the defendant.”
This was erroneous; for there was no evidence war
“I saw Mr. Shaffer’s wagon in the beaten, traveled tracks of the highway during all of the time I traveled 140 yards, and knew his wagon was in the highway; and yet I believed he was going to get out of the highway.”
He was well aware that plaintiff was making no effort so to do, and if he so believed, it must have had reference to the future, either with the help of his automobile, or in the natural course of events. Surely, he entertained no such belief as to plaintiff’s team and wagon’s vacating one half of the road before he reached the wagon with his automobile, moving at a speed of 25 to 85 miles an hour. He was in no manner misled; but, with knowledge that plaintiff had not turned his team or wagon to the right, he undertook to drive his automobile along the embankment and between it and the wagon, where there was not sufficient room within which to pass. There is no basis in the evidence for such an instruction.
II. Section 1571-ml9 of the Code Supplement, 1.913, declares that:
2. negligence : mobüe.°f aut°" “Every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, and at a rate of speed so as not to endanger the property of another, or the life or limb of any person; provided, that a rate of speed in excess of twenty-five miles an hour shall be presumptive evidence of driving at a rate of speed which is not careful and prudent in case of injury to the person or property of another.”
The court submitted whether the automobile was mov
Because of these errors, the judgment is — Reversed.