1888, secs. 2528, 2529, 3172; Norris v. Corkill, 32 Kan. 409; 49 Am. Rep. 489; Merrill v. St. Louis, 12 Mo. App. 466; 2 Bacon's Abridgment, 61; Martin v. Robson, 65 Ill. 129; 16 Am. Rep. 578; Cooley on Torts, 118; 2 Bishop on Married Women, sec. 24, and note; Marks v. Culmer, 6 Utah, 419; Warr v. Honeck, 8 Utah, 61; Ricci v. Mueller, 41 Mich. 214.

In Belle Wilson's demurrer is stated, as the last ground of demurrer, "that the action is barred by subdivision 1 of section 196 of the Code of Civil Procedure" (general section 3145), which limits the right of action to two years. The judgment was rendered April 30, 1892. Plaintiff paid it July 1, 1893, and brought this action June 15, 1894. This was an action for indemnity against actual damages, and the party indemnified had no cause of action until he was damaged, and the statute of limitations commences to run from the time the judgment was paid: Oaks v. Scheifferly, 74 Cal. 478; Wicker v. Hoppock, 6 Wall. 96.

The order and judgment of the trial court sustaining 150 the demurrer of R. G. Wilson is affirmed, and the order and judgment sustaining the demurrer of defendant Belle Wilson is set aside and vacated, with instructions to the court below to enter such order accordingly. Plaintiff is entitled to recover costs against Belle Wilson, and R. G. Wilson is entitled to recover costs against the plaintiff.

Zane, C. J., and Bartch, J., concur.

JOINT LIABILITY - ALLOWANCE OF CONTRIBUTION AMONG JOINT TORT FEASORS.-Wrongdoers cannot have redress or contribution against each other upon being held liable for the unlawful act, but this rule is confined to cases where the person claiming redress knew, or must be presumed to have known, that the act was unlawful: Jacobs v. Pollard, 10 Cush. 287; 57 Am. Dec. 105; Acheson v. Miller, 2 Ohio St. 203; 59 Am. Dec. 663; Johnson v. Torpy, 35 Neb. 604; 37 Am. St. Rep. 447, and note. The general principle that contribution or indemnity will not be awarded as between joint wrongdoers is limited to intentional meditated wrongs, and has no Just application when the parties are acting in good faith, in ignocance of facts rendering their conduct tortious, and such ignorance is not superinduced by their own fault or negligence: Vandiver v. Pollak, 107 Ala. 547; 54 Am. St. Rep. 118, and note. Compare Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; 30 Am. St. Rep. 685.

HUSBAND AND WIFE-LIABILITY OF HUSBAND FOR TORTS OF WIFE.-A husband is liable for the torts of his wife committed by her alone and not in his presence: Flesh v. Lindsay, 115 Mo. 1; 37 Am. St. Rep. 374, and note, showing that a wife is liable for a tort committed by her, unless the husband was present and directed the doing of it, when he alone is liable, and citing authorities, upon the liability of both husband and wife, for her torts, under modern statutes. A husband is liable for his wife's torts committed before marriage: Hubble v. Fogartie, 3 Rich. 413; 45 Am. Dec. 775.

HALL V. OGDEN CITY STREET RAILWAY COMPANY.

[18 UTAH, 243.]

RAILROADS-STREET RAILWAYS-ORDINANCE AS EVIDENCE OF SPEED ALLOWED.-In an action against a street railway company for injuries caused by its alleged negligence, a city ordinance, if not invalid, or inapplicable to the case, ought to be admitted in evidence to show the rate of speed allowed on street railways in the city.

RAILROADS.-A STREET RAILWAY HAS NO SUPERIOR RIGHT, on a public street, to that of the public at large, except the right to lay its track and operate its cars; and, if it adopts a propelling power, such as electricity, which increases the danger to the public, it must be held to a degree of care proportionate to such increase of danger.

RAILROADS-STREET RAILWAYS-RIGHT OF WAYAVOIDANCE OF ACCIDENT.-A street-car has the right of way when a person or vehicle is met on the track, but each party, in order to avoid accident, must exercise ordinary care, and such reasonable prudence and precaution as the surrounding circumstances may require.

NEGLIGENCE. THE EXISTENCE OF NEGLIGENCE MUST DEPEND, in each case, upon the circumstances peculiar to it, and which surrounded the parties at the time of the occurrence on which the controversy is based. What may be considered ordinary care in one case may amount to culpable negligence in another. Thus, an act which would have been viewed with indifference when street-cars were drawn by horses at such a low rate of speed as to be easily controlled might be gross negligence when the car is propelled by electric power at a much higher rate of speed.

RAILROADS-DUTY OF MOTORMAN AT PUBLIC CROSSING-NEGLIGENCE.-It is the duty of a motorman, when he approaches a public crossing, to look and ascertain whether or not the track is clear, to sound the gong as a warning, and to keep his car under control. A failure to do this is negligence on the part of the street railway company.

RAILROADS-STREET RAILWAYS-SPEED IN ABSENCE OF ORDINANCE.-Regardless of any ordinance limiting the rate of speed, a street railway company has no right to run its cars at such a high rate of speed, over a public crossing, or through a frequented street in a city, as will endanger public safety, and put those who are rightfully in the use of the street to extra hazards.

RAILROADS - STREET RAILWAYS-SPEED AS EVIDENCE OF NEGLIGENCE.-While some courts hold that where the speed of a street railway company is greater than that permitted by ordinance it is negligence per se, the better rule appears to be that it is a circumstance from which negligence may be inferred, and is always proper to be considered by the jury.

RAILROADS-STREET RAILWAYS-NEGLIGENCE-COLLISION.-A NONSUIT, in an action to recover damages for injuries occasioned by a collision, in a city, with a street railway car, is im properly granted where it appears that the plaintiff was driving a wagon toward a public crossing on the track; that he looked before he got to the track, but saw no car coming; that he then attempted to cross the track though he did not look for a car just as his horses stepped upon the track, the view being then somewhat obstructed by electric poles; that the car was propelled by an electric motor at the rate of twenty-five to thirty miles an hour; that the brakes were not applied and no attempt made to stop the car; and that no gong was sounded until about the time of the collision.

RAILROADS STREET RAILWAYS-CARE

REQUIRED

OF TRAVELERS.-Persons traveling on a public street, along or across a street railway track, are not held to the exercise of the same degree of care and precaution as they are when traveling along, or upon, or across an ordinary steam railroad.

NEGLIGENCE - LIABILITY WHERE INJURY COULD HAVE BEEN AVOIDED.—Although a party, injured by the negli gence of another, is negligent himself in the first instance, such negligence will not defeat his right of action where it is shown that the defendant might have avoided the injury by the exercise of ordinary care and reasonable prudence; and the question as to whose negligence was the proximate cause of the injury is one of fact for the jury to determine under the circumstances of each particular case.

RAILROADS-LIABILITY OF STREET RAILWAY COMPANY WHERE INJURY COULD HAVE BEEN AVOIDED.—Although a person, with a wagon, drives incautiously upon a street railway track, at a public crossing, the company cannot recklessly run him down, and then shield itself from liability on the ground that such person was negligent in the first instance.

Action for damages for personal injuries. After plaintiff's evidence was introduced, a nonsuit was granted on the ground that the evidence showed that the plaintiff was guilty of contributory negligence, which caused the injuries complained of. The plaintiff's evidence, upon cross-examination, which was taken as the basis of the nonsuit, showed that he looked before he got to the track, but saw no car coming; that he then attempted to cross the track, but did not look, as his team stepped on the track, as the view was then somewhat obstructed by electric poles; that he had made up his mind that there was a clear way; and that he was looking after, and attending to, his team more than anything else while he was crossing the track. Other features of the evidence appear in the opinion. The plaintiff appealed.

Maloney & Perkins and Rhodes & Tait, for the appellant. Evans & Rogera, for the respondent.

250 BARTCH, J. This suit was brought in consequence of alleged carelessness of the defendant company, which resulted in personal injury to the plaintiff. When the evidence had been introduced, the court granted a motion for a nonsuit, on the ground that the plaintiff was guilty of contributory negligence, and afterward denied a motion for a new trial. These rulings are assigned as error on appeal. At the time of the accident, the defendant was operating a street-car railway in the city of Ogden, and the injury was caused on its line on Washington avenue where it intersects with First street. The plaintiff had delivered a load of hay to one Anderson, and on his return passed through

private alley, just north of First street, over the sidewalk,

which is one rod wide, onto said avenue, which is eight rods wide, and then, turning slightly to the south, continued across the eastern portion of said avenue in a westerly direction, and turned his horses to cross the defendants' track, when the collision occurred. Extending north from First street there is a row of shade trees at the edge of the sidewalk on the avenue, and electric poles about one hundred feet apart, on the middle thereof, and the car track is on the west side of the electric poles. These trees and poles obstruct, from the sidewalk, the view to the north, where the car in question came from, and just after the plaintiff, who was driving slowly, and sitting on the front end of his hay rack on the wagon, had left the sidewalk, he looked to the north and south for a car, without seeing any, but did not look immediately before attempting to cross. When near the track, the electric poles somewhat obstructed the view of the plaintiff to see the car. There is some conflict in the evidence as to how far the car was from the wagon when the gong was sounded. The plaintiff 151 testified that he heard no gong, and had no knowledge of the car's approach until it struck him. The witness Anderson, who was in the best position to see, said the car was not more than from five to eight feet from plaintiff, and two other witnesses that it was not more than fifty or sixty feet from him when the gong sounded. The car at the time was running at the rate of twenty-five to thirty miles per hour, and, no brakes being set, or any effort made to stop, it struck with full force, demolishing the wagon and hay rack, killing one horse and severely and permanently injuring the plaintiff. The wagon and team were dragged about fifty feet after being struck. The accident happened at the crossing on First street, which, however, is not a laid-out street west of the avenue, but it is open, and the public cross through there, it being a short way to Harrisville avenue. The railway track, to the north of the place of the accident, is straight, with no obstruction to the view except the electric poles. The plaintiff knew that the cars were running regularly about every fifteen minutes. The accident happened on the 10th of August, 1893, at 5:30 P. M., it being a calm and clear day. Such is the testimony, in substance, disclosed by the record. The plaintiff also offered in evidence a city ordinance, to show the rate of speed which was allowed on railroads in Ogden City; but this was rejected by the court on the ground that it was incompetent, irrelevant, and immaterial. Counsel for the appellant insist that the court erred in rejecting the ordinance, and we are inclined to sustain their contention. It was admissible, unless for some special reason it was either

invalid or did not apply to this case. shown, it ought to have been admitted.

No such reason being

The main question in this case arises on the action of the court in granting the nonsuit. Assuming the evidence to be true -which we must for the purpose of a 252 nonsuit-the question is, Did it present such a case as justified the court in determining, as a matter of law, that the appellant could not recover? To determine this, it becomes important to advert to the relative rights of the public and street railway companies to the use of the streets in a city. When streets in a city or village have been regularly platted and dedicated for public use, all persons have equal rights thereon, so far as public travel is concerned. Originally, such streets were not designed for street railways, but they were confined to the right of public travel in the ordinary modes. Courts, however, have become much more lax in the enforcement of strict technical rules as to the use of streets, through advanced civilization, enlightened public policy, and a desire to subserve the public welfare, and now permit a reasonable portion of the streets to be used for street railways, holding that such is a proper use. Nevertheless, this confers upon a street railway company no superior right to that of the public at large, except the right to lay its track and operate its cars, which must be done with as little inconvenience to ordinary travel as practicable. Nor does its franchise, apart from this, confer upon it any greater or superior right to the use of the street than is enjoyed by any one of the citizens. The right to lay its track and operate its cars includes within it no exclusive right to the use of any particular portion of the street, not even that whereon the track is laid. Nor does it relieve the company from its obligations to exercise due care in the operation of its road, so as to avoid injury to persons traveling upon the street, or in the rightful use of the same, or from liability for accidents, which are the proximate result of the want of proper care, skill, or vigilance on the part of its agents. The duty of the company to recognize the rights of persons in the lawful use of the streets is imperative, and, if 253 it adopts a propelling power which increases the hazards of such persons, it must be held to a degree of care proportionate to the increase of danger because of such propelling power. This is so because the more dangerous the appliance, the more likely it is for casualties to happen, and conBequently, the greater the degree of care which must necessarily be exercised in order to avoid their occurrence. As the company, however, is held to a degree of care commensurate with the circumstances of each particular case, so, likewise, is the citizen, for