Plaintiff brought this action in the District Court of Salt Lake County, to recover a judgment for damages for personal injuries. At the close of the evidence the court directed verdict for defendant. Plaintiff assigns error. The *Page 372 action grows out of the following facts: Defendant maintains and operates a street railway system in Salt Lake City. It operates electric street cars, lories propelled by electric current from the wires but running on rubber tires instead of tracks, and gasoline motor buses. Extending north and south along Main Street are double street car tracks. East and west on Second South Street and intersecting Main Street are double tracks. Rounding each corner of the intersection on "three center curves" are tracks permitting street cars to turn from Main Street into Second South Street, or vice versa. Across Main Street in line with the sidewalks are pedestrian lanes twenty feet wide, marked by yellow lines painted across the street. Abutting and east of the tracks on Main Street, and just south of the pedestrian lane on the south side of Second South Street, is a safety zone for the protection of people getting on, off, or waiting for street cars. This safety zone is set off by a row of iron posts set in the pavement, 7 feet 2 inches from the east rail and extending south from the pedestrian lane about 7 feet. At the intersection was a traffic light semaphore and also a police officer directing traffic on the afternoon of the accident.
Plaintiff was walking west across Main Street in the pedestrian lane on the south side of Second South Street. As she reached a point in the pedestrian lane north of the safety zone, the traffic lights changed for the east and west traffic to stop and the north and south traffic to go. At the whistle indicating a change in the lights, plaintiff stopped, looked at the traffic lights, and then looked (southward) down the tracks, decided she was in a safe place and waited for the lights to change again so she could continue her journey. On the east Main Street track immediately south of the pedestrian lane, and along the safety zone above mentioned, stood defendant's motor bus awaiting the signal to start and take the turn east into Second South Street. After the lights changed the traffic officer standing at the center of the intersection blew his whistle, hand signaled the north-bound traffic on Main Street to stop, moved over towards *Page 373 the southeast corner of the intersection, and signaled the motor bus to move on its course turning eastward into Second South Street. The operator moved the bus forward, following the tracks around the curve. The side of the bus on the overhang around the curve struck plaintiff, causing her to fall to the ground. She was picked up at a point north of the pedestrian lane and the rear wheel had run over her leg. She sustained a badly crushed leg, fractured ribs and other bruises.
She brings this action for damages alleging the following acts or grounds of negligence on the part of defendant: (1) Failing to yield the right-of-way to plaintiff; (2) Failing to sound a horn; (3) Failing to give plaintiff warning in any manner whatsoever; (4) Failing to keep a proper lookout; (5) Turning the bus suddenly and abruptly without warning so as to strike the plaintiff. We shall assume that each of these grounds is sufficiently pleaded to make an issue as a ground or basis for liability and consider in order whether they are sustained by the evidence and the law.
(1) Is there evidence to take the case to the jury on the ground that defendant failed to yield to plaintiff the right-of-way? Plaintiff's own testimony, as that of all other witnesses at the scene of the accident who testified, was to the effect that there was a traffic regulating 1 semaphore at the intersection and that plaintiff, a part of the west bound traffic, heard the whistle and saw the signal lights change for east and west bound traffic to stop and "north and south bound traffic to go"; that pursuant thereto she stopped near the safety zone, and not in front of the bus, to let the north and south bound traffic go, waiting for the lights to change again and give her the right-of-way. It is also admitted that a traffic officer was at the intersection directing the movement of traffic and that the bus moved only upon and under his direction. As to whether the plaintiff, having started across the street while the lights were in her favor, could had she chosen so *Page 374 to do have continued onto the other side of the street, we need not determine. She did not do so. She does not contend that she did so or that she intended to do so. She states that she stopped and yielded the right-of-way "knowing that the traffic wouldgo"; that she looked around, decided she was in a place of safety and waited for the lights to change again. According to all the evidence she was standing still, not needing, not demanding, not using and not claiming the right-of-way, and defendant was therefore under no liability to yield that which no one else wanted, demanded or needed. Guillory v. United GasPub. Service Co., La. App., 148 So. 274; Laws of Utah 1935, Chap. 48; 57-7-9 and 57-7-2, R.S. Utah 1933. There is no evidence at all of any negligence on this ground.
(2) Did plaintiff show any negligence in defendant's failure to sound a horn? It may be granted that the operator of the bus did not sound a horn or bell as it proceeded from its stopping point at the safety zone around the curve track into Second South Street. Sec. 57-7-29, Chap. 48, Laws of Utah 1935, as far as material here reads:
"No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audiblesignal by sounding the horn if any pedestrian may be affected bysuch movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. * * *"
The law is well settled that the purpose of warning signals by trains or motor vehicles is to give notice of their presence or approach so another person will not be taken by surprise or caught napping. But where the other party has actual knowledge of the approach, presence, or movement of the 2 train or vehicle, a warning signal is not necessary to impart that knowledge to him, and therefore the failure to give such warning does not ipso facto establish negligence because there is then lacking a causal connection between the failure and the accident. *Page 375
In Ryan v. Trenkle, 203 Iowa 443, 212 N.W. 888, 890, the court said:
"A person who has knowledge of the presence of a train or auto which imparts to him the very thing that a signal was intended to impart cannot, under ordinary circumstances, predicate negligence on the failure to give a signal."
To the same effect are Haarstrich v. Oregon Short Line R.Co., 70 Utah 552, 262 P. 100; Schmidt v. Chicago N.W.R.Co., 191 Wis. 184, 210 N.W. 370; McGlauflin v. Boston M.R.R. Co., 230 Mass. 431, 119 N.E. 955, L.R.A. 1918E, 790;Nadasky v. Pub. Service R. Co., 97 N.J.L. 400, 117 A. 478.
Plaintiff testified that she stopped at the traffic lights' change; that she saw the bus standing by the safety zone ready to go; that she knew it would move forward with the change in lights and therefore she stopped so the traffic (including the bus) could move forward. When she knew it was there, knew it was going to move forward when it did, and stopped waiting for it to pass, she cannot well assert that she was taken unawares and the failure to sound the horn was the proximate cause of the injury. It may be argued that she assumed the bus would go straight north whereas its course would take it around the corner. It was a traction company bus, rails went around the corner as well as straight ahead, and there was no more cause for thinking it would go north than that it might turn east, especially since before the bus moved the traffic policeman after letting part of the traffic go north, right before her eyes, blew his whistle, stopped the automobile traffic and signalled the bus to make the turn around the corner.
In addition to the statute quoted above, Chap. 48, Laws of Utah 1935, 57-7-10, provides:
"The driver of a vehicle or operator of a street or interurban car or electric trolley coach intending to turn to the right or left at an intersection where traffic is controlled by traffic control signals or by a police officer shall proceed to make either turn with proper care *Page 376 to avoid accident, and only upon the `Go' signal, except as otherwise provided in this section or unless otherwise directed by a police officer or by official traffic signs or special signals."
And R.S. Utah 1933, 57-7-2 and 57-7-9 read:
Section 57-7-2. "It is unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of any traffic or police officer invested by law with authority to direct, control or regulate traffic."
Section 57-7-9. "It is unlawful for the driver of any vehicle or for the operator of any street or interurban car or electric trolley coach to disobey the instructions of any official traffic sign or signal placed in accordance with the provisions of law, unless otherwise directed by a police officer."
It is therefore evident that there was no showing that the failure of the operator of the bus to sound a horn had any legal causal connection with or was or could be the proximate cause of the injuries to plaintiff, and the directed 3 verdict on this score was proper. Southern R. Co. v.Walters, 284 U.S. 190, 52 S. Ct. 58, 76 L. Ed. 239.
(3) What we have said in discussing point Number 2 above disposes also of point Number 3, regarding failure to give any warning or signal.
(4) Did the plaintiff show any failure on the part of defendant to keep a proper lookout, or any causal connection between such failure if any and the accident? In considering this question we may ask: What constitutes a failure to keep a proper lookout, and wherein if at all did defendant 4 fail? We shall not attempt a specific definition of "proper lookout" — the term perhaps defines itself as well as any other language can do. It imposes upon the driver the duty of being watchful and reasonably alert so as to see and observe any person, vehicle or other substantial object upon the road he is travelling sufficiently far in advance of his car to enable him to avoid striking such person or object; and to be on the alert and watchful for such persons or objects as he may reasonably expect to be upon the street or in such proximity thereto as to be *Page 377 in a position of, or exposed to danger from the movement of his vehicle. It means he must be aware of such things as in the exercise of ordinary care he should have known; he must be watchful for dangers which may reasonably be anticipated, keeping his visual consciousness awake as to things in front of him and coming into his path from the sides, or likely to come in from the sides, back substantially as far as he can see without turning his head so far as to take the part immediately in front of him out from his field of vision.
To require the driver or operator to be watching for persons or objects which might come into the danger zone after the driver has passed, that is, to require him to be watching out behind while he is going forward, would be impracticable and contrary to law and would increase the dangers and 5 collisions and accidents ahead. When a vehicle has reached a given point, eliminating the question as to right-of-way, the duty is upon the other party to avoid running into such vehicle. He must be on the alert and keep a proper lookout. Cases have been cited where negligence was found when the operator backed his car into another person. Coke v.Timby, 57 Utah 53, 192 P. 624. Such cases do not affect what has here been said. When a driver backs his car the rear end is in effect the front or forward end in the movement, and the driver must keep a lookout ahead in the direction he is moving. Is there any evidence here that defendant failed to keep a proper lookout? Plaintiff testified that she stood at a point off the tracks and so far away that she though she was in a safe place. Her witnesses, Gates and Everett, saw her where she was standing and did not think she was in any situation of danger. There was no testimony from any one else who saw her at all standing in the cross walk before she was struck. She was not in front of nor in the path of the bus. The operator looked ahead over his course and saw no one in any place of apparent danger. The people in the northbound automobiles stopped by the traffic officer for the bus to make the turn saw no *Page 378 one in any place of apparent danger, nor did the traffic policeman who stood to the east and right to the curve the bus was to follow, directing the movement of the bus. There is therefore no evidence at all that plaintiff was in any position where a lookout would or should have revealed her as being in a position of apparent danger, and therefore no evidence from which it could be inferred that the operator failed to keep a proper lookout.
(5) Did the bus turn abruptly and suddenly so as to strike the plaintiff? Every witness but one who testified as to the position of the bus stated that as it moved from its position near the safety zone around the curve "it followed the rails," that is, it was "astraddle of the rails," "as near centered as could be," and that "the right front wheel was not more than a few inches" over the rail. One witness said it "seemed to turn abruptly after it crossed the pedestrian zone" but he could not tell where it was. The rails make a "three point curve" around the corner from the center of Main Street south of the intersection to the center of Second South Street east of the intersection. This curve the bus was following moving under the directions of the traffic officer. The turn to the right therefore was not a sudden or abrupt turn but an established arc for the buses and street cars, as sweeping, gradual, and wide as could be made around the corner. The speed was from zero at starting to about 3 to 4 miles per hour at the point of the accident, so there was no sudden or abrupt change in the movement or speed which caused or contributed to the accident.
Let us now examine the authorities and see what is the duty of the operator of a street car or bus, and also of the other persons using the highway, to protect such other parties from collision with the overhang of the street car or bus as it rounds a curve. The cases cited by appellant on the question are not in point. They are cases dealing with 6 rights-of-way and collisions at crossings and on highways where the injured party was upon the highway in front of the approaching car. The law seems to be well *Page 379 settled that the operator of a street car or motor bus when rounding a curve and moving in accordance with traffic laws and regulations, and in broad daylight, is justified in assuming that an adult person knowing that a bus is in the street and taking a position in the street far enough away to permit the front end of the vehicle to clear and pass him, will if necessary move back far enough to avoid being hit by the inward swing of the overhang at the middle or the outward swing of the rear end.
In 25 Ruling Case Law, p. 1245, under title "Street Railways," the law applicable to this class of cases is thus stated:
"Rounding Curves: It seems that a street railway company is bound to use only a reasonable amount of care to keep pedestrians from being struck and injured by its cars at curves. The rule approved by the weight of authority is that in view of the well known fact that in rounding a curve the rear end of a street car will swing beyond the track and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person standing near the track who is apparently able to see, hear and move, and having notice of the approach of a street car and of the existence of the curve, will draw back far enough to avoid being struck by the rear of the car as it swings around the curve in the usual and expected manner, and, therefore, no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of the swing, if he remains in the same position."
In Kent v. Ogden, L. I.R. Co., 50 Utah 328, 342,167 P. 666, it was said by this court, as epitomized in the syllabus:
"Where a person waiting for a train at a crossing stop crossed the track as the train was approaching, but remained so close thereto that she was struck by the train, the position carelessly assumed by her was the cause of her injury, and not any negligence of the company respecting the speed of the train or the dazzling brilliance of the headlight."
And in the opinion the court said:
"If the deceased had stood upon the track under the circumstances here disclosed until she was struck, no one could, in reason, contend that the position which she carelessly assumed was not the proximate cause of her injury. If that be so, how can it reasonably be contended *Page 380 that the position which she carelessly assumed, so near the track as to be in the path of the passing cars, likewise was not the cause of her injury? Where one voluntarily assumes a position on or so near a railway track that a train of cars in passing on the track must necessarily strike him, can reasonable minds differ as to whether his act in so placing himself was the proximate cause of injury in case the cars strike him? We think not. What is there to differ about? * * *
"The only remaining question, therefore, is, Is there anything in the evidence from which the jury could find an excuse for the conduct of the deceased in taking a position so near the railway track? * * * What others saw she must be deemed to have been able to see. As pointed out before, there is nothing disclosed by the evidence which would excuse her conduct. This court, in a number of cases, has illustrated and applied the conditions and circumstances under which a jury may find an excuse for the deceased's conduct in determining the question of contributory negligence. See Newton v. Oregon Short Line R. Co., 43 Utah 219,134 P. 567; Gibson v. Utah L. T. Co., 46 Utah 562,151 P. 76; Oswald v. Railroad Co., 39 Utah 245, 117 P. 46. In the first two cases we went as far as permissible to go in permitting a jury to pass upon the question of contributory negligence. In the last case cited we held that the plaintiff was prevented from recovering upon the ground of contributory negligence as a matter of law. In those cases it is held that so long as there is any question of fact upon which reasonable minds may differ and arrive at different conclusions in determining the question of negligence or contributory negligence, the question is for the jury, but when there are no facts or circumstances which would authorize reasonable minds to differ, the question becomes one of law. When, as in this case, there can be no doubt whatever regarding the proximate cause of the accident, nor any doubt that it was wholly within the power of the deceased at any moment before the collision to have averted it by merely moving a foot or two out of the zone of danger, this court cannot shirk its duty in determining the result. Before a judgment for damages can be sustained there must be some act, either of commission or omission, on the part of the defendant in the action constituting negligence, and it must not appear as a matter of law that the plaintiff's own conduct caused the injury and consequent damages. If no negligence is shown on the part of the defendant, or if it appear as a matter of law that the plaintiff's inexcusable negligence caused the injury and damages, then to allow a judgment for damages to stand would be equivalent to transferring property from one person to another without sanction of law, and hence without right. In this case it is quite immaterial whether the defendant was guilty of any or of all of the acts complained of, since all of those acts, taken either singly or in combination, *Page 381 merely constituted the ultimate, while the deceased's inexcusable conduct constituted the proximate cause of the injury."
In Fittipaldi v. Philadelphia Rural Transit Co., 107 Pa. Super. 385,163 A. 397, it was said [page 398]:
"As the bus moved forward and around the corner into Huntingdon pike, she remained standing in the cartway at a point which she had selected as a safe place to stand. The event proved she had been mistaken in her judgment, but defendant cannot be held liable for such mistake upon her part.
"We are all of opinion that the cause of plaintiff's regrettable injuries was her own lack of care under the circumstances."
In Noonan v. Boston Elevated R. Co., 263 Mass. 305,160 N.E. 811, the court said:
"There is nothing in the record to warrant a finding that the conductor or motorman knew or should have known that she was in a position of danger and was appreciative of it when the car was started. Widmer v. West End Street Railway Co., 158 Mass. 49,32 N.E. 899."
In Steggell v. Salt Lake Utah R. Co., 50 Utah 139,167 P. 237, the Supreme Court of Utah held, according to the syllabus:
"The operators of a train have a right to assume that a person of mature years, sound of body and mind, who is walking on the track, on a bright day, with an unobstructed view, toward the rapidly approaching train, which on his entering on the track was more than a mile away, will see and hear, as is his duty, the approaching train, and will be timely in removing himself to a place of safety."
In Miller v. Public Service Corp., 86 N.J.L. 631,92 A, 343, L.R.A. 1915C, 604, the Court said:
"The rule approved by the weight of authority is that, in view of the well-known fact that in rounding a curve the rear end of a street car will swing beyond the track, and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person, standing near the track, who is apparently able to see, hear, and move, and, having notice of the approach of a street car, and of the existence of the curve, will draw back far enough to avoid *Page 382 being struck by the rear of the car as it swings around the curve in the usual and expected manner, and therefore no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of the swing, if he remains in the same position. * * *
"The distance she was standing from the front of the car as it passed around the curve was not shown, and we think the motorman had a right to presume, either that she was beyond the swing, or that if not, she would move out of its range. We must take the case as it is presented to us; and, without proof of the exact position taken by the plaintiff with reference to the approaching car, beyond the fact that the front passed her without injury, we are asked to say that the motorman must assume, under such circumstances, that she would not act as a reasonably prudent person, and withdraw from a danger of which she was aware, or which she supposed did not exist because of the distance she was from the car, but about which, it subsequently appeared, she was mistaken. To accede to this request would impose a duty upon those operating street railways which in our opinion has no legal basis."
See, also, Steinburg v. Milwaukee Elec. Ry. L. Co.,222 Wis. 37, 266 N.W. 793.
What was said in Ryan v. Milwaukee Northern R. Co.,186 Wis. 537, 538, 203 N.W. 340, 342, has some application here:
"Since it was necessary for the motorman to keep close watch forward, we do not consider that he was also required to look constantly to the rear to avoid such a collision as occurred. The law does not impose any such responsibility."
In Weir v. Kansas City Rys. Co., 108 Kan. 610, 196 P. 442, the court said [page 443]:
"In another case where a person was walking in the wagonway of a street near a track, and the front end of the car had passed without contact, but he was struck by the hind end of the car as it went around a curve, it was said:
"`Under such circumstances it was not the duty of the motorman to watch plaintiff after the front end of the car passed safely beyond her and the team, and therefore he could not be held to have knowledge of the danger assumed by her in walking between the team and the car toward the rear end.' Wood v. Los AngelesR. Corp., 172 Cal. 15, 155 P. 68. *Page 383
"In Louisville R. Co. v. Ray, (Ky.), 124 S.W. 313, it was held to be the duty of those in charge of a street car to keep a lookout so as to avoid injury to those who may be crossing a street in front of or near a moving car. `But the rule has never been so extended as to require the employees in charge of the car to keep a lookout at corners and curves so as to prevent others using the street from colliding with the rear end of the car.'"
In Zalewski v. Milwaukee Elec. Ry. L. Co., 219 Wis. 541,263 N.W. 577, the court said [page 580]:
"In the midst of the heavy traffic conditions at that intersection, it was plaintiff's duty to look and listen, and to observe and hear, all that could have been observed and heard by an adult pedestrian exercising ordinary care in that situation; and her failing to observe and hear the moving car, which she knew was close to her and about to proceed around the curve, and to keep out of its pathway by moving slightly ahead or aside, could well be deemed to constitute negligence which proximately contributed to her injury. Peters v. Milwaukee Electric Ry. Light Co. 217 Wis. 481, 259 N.W. 724; Hirschberg v. MilwaukeeElectric Ry. Light Co., 179 Wis. 175, 190 N.W. 829; Bubb v.Milwaukee Electric Ry. Light Co., 165 Wis. 338, 162 N.W. 180;Schmidt v. Milwaukee Electric Ry. Light Co., 158 Wis. 505,149 N.W. 221; Schliesleder v. Milwaukee Electric Ry. LightCo., 147 Wis. 668, 134 N.W. 144."
In Gannaway v. Puget Sound Traction, Light P. Co.,77 Wash. 655, 138 P. 267, the rule was applied [page 268]:
"It is not a duty of street car companies to warn pedestrians on the streets that there is an overhang to an ordinary street car when it rounds a curve. This is a matter of common knowledge, and ordinary prudence requires that everyone take notice of the fact."
To like effect are the following cases: Steggell v. SaltLake Utah R. Co., 50 Utah 139, 167 P. 237; Noonan v. BostonElevator R. Co., 263 Mass. 305, 160 N.E. 811; Jelly v. NorthJersey St. R. Co., 76 N.J.L. 191, 68 A. 1091; Widmer v. WestEnd St. R. Co., 158 Mass. 49, 32 N.E. 899; Garvey v. RhodeIsland Co., 26 R.I. 80, 58 A. 456; Hayden v. Fair Haven W.R. Co., 76 Conn. 355, 56 A. 613; Steinberg v. MilwaukeeElec. Ry. L. Co., 222 Wis. 37, 266 N.W. 793; Weir v. KansasCity Rys. Co., 108 Kan. 610, 196 P. 442; *Page 384 Matulewicz v. Metropolitan St. R. Co., 107 A.D. 230,95 N.Y.S. 7; Miller v. Public Service Corp., 86 N.J.L. 631,92 A. 343, L.R.A. 1915C, 604; Wood v. Los Angeles R. Corp.,172 Cal. 15, 155 P. 68; Hoffman v. Philadelphia Rapid TransitCo., 214 Pa. 87, 63 A. 409; Note, 16 L.R.A., N.S., 890; Note, Ann. Cas. 1916E, 682; Duffy v. Philadelphia Rapid TransitCo., 291 Pa. 564, 140 A. 496; Zalewski v. Milwaukee El. Ry. L. Co., 219 Wis. 541, 263 N.W. 577.
So too the law does not require operators of street cars or motor buses to keep a lookout to the rear to see that adults apparently in full possession of their faculties do not either move into the side of a car passing in front of them or unnecessarily place themselves in a position to contact 7 the overhang of the car on a curve. Wood v. LosAngeles R. Corp., supra; Gribbins v. Kentucky Terminal Co.,150 Ky. 276, 150 S.W. 338 (citing South Covington R. Co. v.Besse, 108 S.W. 848, 33 Ky. Law Rep. 52, 16 L.R.A., N.S., 890, and Louisville R. Co. v. Ray, Ky., 124 S.W. 313); Brightman v. Union Street R. Co., 216 Mass. 152, 103 N.E. 379; Miller v. Public Service Corp., supra; Greenleaf v. Public ServiceCorp., 88 N.J.L. 715, 92 A. 344; Kaufman v. Interurban St. R.Co., 43 Misc. 634, 88 N.Y.S. 382; Matulewicz v. MetropolitanSt. R. Co., supra; Beeck v. Coney Island B.R. Co., Sup., 135 N.Y.S. 600; Hoffman v. Philadelphia Rapid Transit Co., supra, Thus in Miller v. Public Service Corp., supra, it was said:
"The rule approved by the weight of authority is that, in view of the well-known fact that in rounding a curve the rear end of a street car will swing beyond the track, and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person, standing near the track, who is apparently able to see, hear, and move, and having notice of the approach of a street car, and of the existence of the curve, will draw back far enough to avoid being struck by the rear of the car as it swings around the curve in the usual and expected manner, and therefore no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of the swing, if he remains in the same position." *Page 385
And in Garvey v. Rhode Island Co., supra, 58 A. 457, the court said:
"Every person * * * must be presumed to take notice of the obvious fact that the body of a street car, in rounding a curve must necessarily swing out some little distance from the track on the outside of the curve. And for one to place himself within reach of the swing or overhang of a car while it is in motion is as much a bar to his recovery in an action against the company as though he had negligently placed himself in front of a moving car and been injured thereby."
The court further held, according to the syllabus that plaintiff's placing himself within reach of the "overhang" of the car, and not the acceleration of its speed, was the proximate cause of the injury.
To like effect are the following cases: Kiley v. BostonElevated R. Co., 207 Mass. 542, 93 N.E. 632, 31 L.R.A., N.S., 1153; Wheeler v. Des Moines City R. Co., 205 Iowa 439,215 N.W. 950, 55 A.L.R. 473; Widmer v. West End St. R. Co., supra; Riddle v. Forty-Second St. R. Co., 173 N.Y. 327,66 N.E. 22.
We find no error in the action of the trial court 8 and the judgment is affirmed. Costs to Respondent.
FOLLAND, C.J., and MOFFAT, JJ., concur.