(115 A.) of fact to be determined by the jury upon such evidence as was submitted, provided that the proofs were sufficient to enable the jury to determine that fact. It is common knowledge that the value of a car depreciates' with use, ordinarily, and, although common knowledge can hardly be used as a substitute for proof, yet, on the other hand, there is no presumption existing against it. This being so, the burden rested upon the plaintiff to show either that there had been no deterioration in value, if that was the fact, or, if the fact was the contrary, then to prove the extent of that depreciation. For this reason, the judgment under review must be reversed. [6] As this case must go back to be retried, we think it proper to state that we find no merit in the contention of the appellant that, by the terms of the policy, the appellant is only liable for the actual cost of repairing the car. That provision only applies in cases where the car can be repaired, but has no application where it is shown that the car has been reduced to a total wreck and is beyond the possibility of repair. (96 N. J. Law, 518) SIMPSON et al. v. SNELLENBURG et al. (No. 81.) se, and whether it was negligence contributing to an accident to the bicyclist due to the sudden stopping of the truck depends on the circumstances and is for the jury. 4. Highways176-Bicyclist following motortruck which suddenly stops without warning only bound to use ordinary care in attempting to pass to left. A bicyclist following a motortruck and on the sudden stopping of the truck without warning, attempting to pass to the left, where he was injured by an approaching auto, was not bound to use infallible judgment as to the course to pursue to avoid a collision with the truck or his companions, but only to exercise that degree of care which an ordinarily prudent person would have taken. 5. Highways176-To charge bicyclist following truck with assumed risk as to danger from its stopping, he must have or could have obtained knowledge of danger. To charge a bicyclist following a truck with having assumed the risk of danger from the truck driver's negligence in stopping, the traveler must either have knowledge of its existence or could have obtained such knowledge by the exercise of reasonable care. 6. Highways 184 (3)-Bicyclist's assumption of risk of truck driver's negligence held for the jury. Whether a bicyclist closely following defendant's truck assumed the risk of injury from the truck driver's negligence in stopping suddenly, making it necessary for the bicyclist to turn to (Court of Errors and Appeals of New Jersey. the left, where he was struck by an auto, was a Nov. 14, 1921.) 1. Highways 176-Driver of motortruck obstructing view of persons following owes duty to warn them of danger ahead. Operating a motortruck which obscures the vision along the public highway to such an extent as to prevent persons following from observing conditions which ought to be known to them to insure their safety casts a duty on the driver to use a reasonable degree of care that warning be given of approaching danger to those whose view of impending peril he obstructs. 2. Highways 176-Bicyclist following truck cutting off his view held not guilty of contributory negligence in passing truck and receiving injury from approaching auto. question for the jury, as the danger could not have been anticipated or known. Walker, C., and Black, Williams, and Gardner, JJ., dissenting. Appeal from Supreme Court. Action by J. C. Simpson, Jr., by next friend, and another, against Nathan Snellenburg and others. Judgment for plaintiffs, and defendants appeal. Affirmed. Ott & Carr, of Camden, for appellants. Albert S. Woodruff, of Camden, for respondents. KALISCH, J. The single question presented on this appeal is whether the evidence was so clear and conclusive that the trial judge could properly have said, as a matter of law, that the plaintiff was guilty of con Where a bicyclist was following a motortruck, which practically cut off visibility, and the driver, knowing that he and others with him were following, suddenly stopped without warning, and in attempting to avoid a collisiontributory negligence, and therefore should with the truck or his companions, he passed to have taken the case from the jury and the left of the truck and was injured by an approaching auto, held, that he was not guilty of contributory negligence; the driver of the truck owing him the duty to warn him of danger ahead. 3. Highways 184(3)—Not negligence per se for a bicyclist to follow behind a motortruck at 8 to 20 feet. Following a motortruck on a bicycle at a distance of 8 to 20 feet is not negligence per directed a verdict for defendant. To determine this query requires an examination of the facts established by the testimony in the cause. Briefly stated, they were as follows: Simpson, Jr., and his father sued the defendants to recover damages for injuries sustained by the former while riding a bicycle on a public road leading from Philadelphia to Pleasantville in this state. The son, a lad 16 years of age, accompanied by four companions, on bicycles, was riding along the road, and when he and they reached a place called Stratford, a motor delivery truck, belonging to the defendants, passed them. Besides the defendants' chauffeur who operated the truck there was a helper sitting in the rear looking back. From the time the motortruck passed Simpson and his companions up to the time of the happening of the accident they rode behind the truck at a distance from 12 to 20 feet. Th chauffeur of the truck spoke to the bicyclists as he passed them, and the testimony is undisputed that he knew they were riding behind his truck, and that the inclosed body of his truck was of such size as to practically shut off visibility to those behind of vehicles which were approaching from the opposite direction. The truck was going very rapidly, and it is apparent that Simpson and his companions were trying to keep up with it. As they were going down a long incline the driver of the truck observed a farm wagon standing across the road, also beyond it, coming rapidly from the opposite direction, six or seven touring cars, apparently on their way to Philadelphia. He attempted to pass around the farm wagon before the passing point was reached by the motorcars, and, discovering when he was almost on top of the farm wagon that, he could not accomplish his purpose, he put on his brakes with full force and came to a sudden stop within a few feet of the farm wagon. He did this without any warning to Simpson or his companions, who he knew were closely following him. Three of them in order to avoid colliding with the truck undertook to pass to the right, with the résult that they piled upon one another in a ditch alongside the road. The plaintiff, observing this and warned by his companions' fate and in order to avoid a mishap, turned to the left just as the first of the string of autos observed by the operator of the truck was passing the farm wagon, with the result that, though Simpson kept as near the delivery wagon as practicable, he was hit by the automobile and very seriously injured. urged that the plaintiff by riding behind the moving truck within a distance of 8 to 20 feet was guilty of negligence per se. The adoption of such a view would result in disastrous consequences to public travel, by preventing the free use of our public roads for all kinds of vehicular traffic and materially impede the proper running of vehicles for both business and pleasure. For it is a matter of common knowledge that conditions of traffic often become such that vehicles are necessarily much closer to each other than 8 feet, and therefore must be run and guided as to their speed by the vehicles ahead, and to denounce such conduct as negligent per se cannot be justified in good sense. The mere fact that a vehicle is moving in close proximity to a moving vehicle ahead and keeping up with it does not of itself constitute negligent conduct per se, but whether or not it was the negligence of the operator of the rear vehicle contributing to the negligence of the driver ahead in case of an accident to the former depends upon all the circumstances surrounding the happening of the accident, and almost invariably presents questions of fact for the decision of a jury. [4] The plaintiff had a right to assume that the truck driver was using reasonable care to observe the condition of the traffic ahead, and would so operate and regulate the speed of the truck so as not to endanger those who were driving or riding in his rear and whose view up the road and of the approach of vehicles was shut off by the truck, and that the driver would use reasonable care to give timely and ample warning of any danger ahead, so as to afford them an opportunity to halt their bicycles in time to avoid running into the truck, or at least to turn into a place of safety. That the truck driver failed in his duty in that regard, and thus practically by his negligent conduct lured the plaintiff and his companions into a dangerous situation, appears clearly from the evidence. As a consequence of such negligent conduct, the plaintiff and his companions were overtaken by an unforseen and sudden peril which called upon them, on the instant, in a state of mind more or less distracted by the impending peril, to exercise their best judgment to reach a place of safety, with the result that those turning to the right fell on top of one another into a ditch alongside of the road, whereas the plaintiff to avoid the mishap of his companions and to avoid injuring them and himself turned to the left, hugging closely as practicable the side of the truck only to be met and struck by an ap [1, 2] Operating a motortruck which obscures a vision along the public highway to such an extent as to prevent those driving or riding behind such vehicle from observing conditions which ought to be known to them, in order to reasonably insure their safety of life and limb, casts a duty upon the driver of such vehicle to use a reasonable degree of care that timely and ample warning be given of approaching danger to those whose view of the impending peril he ob-proaching automobile which was hidden from structs. That being the measure of the operator's legal duty, it is difficult to perceive how under the evidence it can fairly be maintained that the plaintiff was guilty of contributory negligence. his view by the truck. The plaintiff in the circumstance in which he found himself was not bound to exercise an infallible judgment as to what course to take to escape threatening and imminent danger; all that was required (115 A.) for his safety as an ordinary prudent person, |tered the plaintiff has appealed to this court. suddenly overtaken by a peril, in a similar Affirmed by divided court. situation, would have taken, and that presented clearly a jury question. The suggestion that the plaintiff assumed a risk of danger to himself, by riding closely behind the truck and keeping up with it, and thereby was debarred of any right to a recovery, is wholly without legal force. [5] There was no risk of danger, as arose in this case, except such as was the direct result of the truck driver's negligence. In order to successfully charge a plaintiff with having assumed the risk of danger, he must either have knowledge of its existence, or could have obtained such knowledge by the exercise of reasonable care. Clarence L. Goldenberg, of Atlantic City, for appellant. Thompson & Hanstein, of Atlantic City, for respondents. PER CURIAM. The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible. For affirmance: The CHANCELLOR, the CHIEF JUSTICE, JUSTICES SWAYZE, BERGEN, MINTURN, and BLACK, and JUDGE WILLIAMS. For reversal: JUSTICES PARKER, KALISCH, and KATZENBACH, and JUDGES HEPPENHEIMER, GARDNER, WHITE, and ACKERSON. (13 Del. Ch. 39) [6] In the present case it was the truck driver's negligent conduct which created the dangerous situation, which danger could not have been anticipated or known by the plaintiff, and it is therefore difficult to understand by what process of logical reasoning it can properly be said that the plaintiff assumed such risk. At any rate, whether that particular risk was assumed by the plaintiff was (Court of Chancery of Delaware. Aug. 27, clearly not a court question, but one for the jury. The trial judge was therefore warranted in refusing to direct a verdict for the defendants. Judgment is affirmed, with costs. The CHANCELLOR and BLACK, WIL LIAMS, and GARDNER, JJ., dissent. (96 N. J. Law, 298) MONROE HOTEL CO. v. SOMERS' ESTATE et al. (No. 18.) TAYLOR et al. v. SMITH et al. 1921.) 1. Injunction 74-Courts have no right to substitute their judgment for that of officers exercising discretion. In matters involving the exercise of discretion, courts have no right to substitute their judgment of what is best for the judgment of the officers on whom the law casts the responsibility of deciding. ment of court not substituted for judgment of city council by enjoining issuance of bonds. The sale of a bond issue, recommended by a plan for establishing a fire department for the city of Wilmington under Act March 16, (Court of Errors and Appeals of New Jersey. 1921 (32 Del. Laws, c. 111), approved by the Nov. 23, 1921.) (Syllabus by the Court.) Appeal and error 1123-Judgment must stand affirmed where court is equally divided. The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible. ty. Appeal from Circuit Court, Atlantic Coun Suit by the Monroe Hotel Company against the estate of Richard B. Somers and Helena S. Conover and others, executors, to recover on the indorsement of a promissory note. Upon plaintiff's counsel opening the case to the court and jury, counsel for defendants moved to nonsuit the plaintiff upon the ground that the facts offered to be proved did not constitute a cause for action against the defendants. The trial judge granted the motion. city council, cannot be enjoined under an objection that the plan submitted to the council was not such as the act contemplated; the council having the discretionary power of approving or disapproving the judgment of the department of public safety submitting the plan, even though the council displayed bad business judgment. 3. Municipal corporations 917(1)-Taking over of property of fire department held not necessarily to precede issuance of bonds to pay therefor. The taking over of property of fire comMarch 16, 1921 (32 Del. Laws, c. 111), creating panies in the city of Wilmington, under Act the department of public safety and providing for the establishment of a fire department, need not precede the passage of an ordinance approving the plan of the department, or sale of bonds to pay for such property. 4. Municipal corporations 916-Bonds cannot be issued in excess of cost of property taken over. It was proper for the council of the city From the judgment thereupon en- of Wilmington to provide for the issuance of bonds to the amount of the estimated cost of property to be taken over, under Act March 16, 1921 (32 Del. Laws, c. 111), creating the department of public safety and providing for the establishment of a fire department, by taking over property of fire companies in the city, but only so many of the bonds so authorized may be actually issued as will equal the actual cost of the property taken over. 5. Municipal corporations 921(1)-Bonds to be issued at par to be used in establishment of fire department. The provision of Act Gen. Assem. March 16, 1921 (32 Del. Laws, c. 111), § 6, relating to the creation of a department of public safety for the City of Wilmington and the establishment of a fire department, to the effect that the amount of bonds issued in payment of property taken over shall not exceed the cost of the property, contemplates that the bonds must be sold at par. 6. Municipal corporations 236-Department of public safety of city of Wilmington held required to publicly invite bids for materials. An ordinance of the city of Wilmington in relation to publicly inviting bids for materials to be furnished and work to be done applies to the department of public safety, created by Act March 16, 1921 (32 Del. Laws, c. 111), in connection with the establishment of a fire department, except where specific property is to be purchased under the act, and the contracts are of such nature that they are in reason excluded from the operation thereof. 7. Municipal corporations 201-Department of public safety of city of Wilmington may purchase screw couplings for fire hose under statute. The act of the Legislature requiring that couplings for fire house throughout the state should be the same as were in use in the city of Wilmington did not prevent the department of public safety of such city, created by Act March 16, 1921 (32 Del. Laws, c. 111), from adopting screw couplings in lieu of snap couplings then in use. 8. Injunction 12-City not restrained from purchasing fire couplings, remedy, if any, being against use. A department of a city cannot be enjoined from purchasing screw couplings for fire hose under an ordinance requiring that snap couplings be used; the proper time to ask for the injunction being when use thereof is under 11. Constitutional law 70 (3)-Cannot substitute own conception for law as written. When legislative authority, whether state or municipal, acting within the scope of its lawful power, declares what the law shall be, it is not in the power of any court by forced construction to substitute for the law as written its own conception of what the law ought to be. Bill by Charles E. Taylor and others against Samuel K. Smith and others, constituting and composing the Department of Public Safety for the City of Wilmington, and others. On rule to show cause why preliminary injunction should not issue. Preliminary injunction allowed. Decree modified. 115 Atl. 413. The bill as amended seeks to enjoin the payment of money and the issuance of municipal bonds by the authorities of the city of Wilmington, under the provisions of the act of the Legislature (chapter 111, vol. 32, Laws of Delaware) entitled "An act creating a department of public safety for the city of Wilmington, and prescribing its powers." The act, or so much thereof as is pertinent to the questions involved, provides as follows: as "Section 5. That on and after the first day of May, A. D. 1921, 'the mayor and council of Wilmington' is hereby authorized and empowered through the agency of the 'department of public safety' hereby created, constituted and appointed, and their successors in office, to prepare a plan for the establishment of a fire department for said city, and the estimated costs thereof, and to take over for public use, hereinafter provided, or otherwise, such real by purchase, compromise, condemnation and personal property of the several fire companies of the city of Wilmington, Delaware, as were in existence and recognized by 'the mayor and council of Wilmington' as a part of the fire department of the said city, on September first, A. D. 1918, as a competent appraiser, or appraisers may deem worthy of being used in a fire department of a city of its class, together with such other property as may be necessary, at such price or prices as may be determined in any of the above proceedings, or agreed upon by the department of public safety in agreements to purchase the same. If said plan is approved by the council,' of 'the mayor and council of Wilmington,' the said department of public safety shall proceed to acquire by gift, purchase, condemnation as hereinafter provided, or otherwise, such real and personal property as may be contemplated in said plan. Any firecompany may reserve the right to accept or reject the amount agreed upon by the appraisers. "Section 6. For the purpose of defraying all the costs and expenses of acquiring such real and personal property of fire companies, or otherwise, as are considered by the above mentioned competent appraiser or appraisers, as necessary and worthy of being used by the said department of public safety 'the council,' of 'the Mayor and council of Wilmington,' shall have power to issue bonds to an amount not exceed (115 A.) ing the cost of such real and personal property so taken over, plus the cost of such additional real estate and personal property that is deemed by the department of public safety necessary to buy, to establish an efficient fire department, and as contemplated in said plans heretofore approved by 'the council.' Said bonds shall be sinking fund bonds to be issued in manner and form as 'the council,' of 'the mayor and council of Wilmington,' shall determine, the same to be approved as to form by the city solicitor of the city of Wilmington. "All the aforesaid bonds shall be signed by the mayor, and countersigned by the city treasurer and city auditor, in the same manner as other bonds of the city of Wilmington, and a record thereof shall be made and kept by the said auditor and treasurer respectively. "To the President and Members of Council, Municipal Building, Wilmington, DelawareGentlemen: "Pursuant to an act creating the department of public safety for the city of Wilmington, passed by the Delaware Legislature 1921, the directors of the department of public safety herewith submit their report covering a general plan preparing for the establishment of a fire department for the city of Wilmington, and the estimated costs thereof. "The study of the city of Wilmington's needs as to a fire department is, for the purpose of this plan, divided into four divisions, which may be amplified, extended and subdivided as the growth and needs of the city justify. 1. The acquisition and location by the city Additions and repairs to fire houses at an owned by the several volunteer fire com- The acquisition by the city of new fire "Section 7. The department of public safety may, from time to time, submit to 'the council,' of the mayor and council of Wilmington,' plans 2. for extensions, enlargements or additions to its original plan as approved by 'the council' of 'the mayor and council of Wilmington,' for the 3. The acquisition of fire equipment now further improvement of the police and fire departments of the city of Wilmington, as it may deem desirable; upon receiving the approval of the council,' of 'the mayor and council of 4. Wilmington,' the same shall be added to and made a part of the original plan. "The council,' of 'the mayor and council of Wilmington,' upon giving its approval thereto, may then proceed 5. by ordinance to borrow upon the faith and credit of the mayor and council of Wilmington,' 6. Organization expenses, including the emsuch additional sum or sums of money as may be necessary to enable the said department of public safety to carry out the said supplemental plan, to be expended in the same manner as heretofore prescribed in this Act for the original plan. "Section 9. Immediately after the taking over by the department of public safety of said real and personal property, the fire department of the city of Wilmington shall be under the control and management of the said department of public safety, and the said department shall have the power, and it shall be its duty, to cause to be done, performed and observed, all the regulations, matters and things prescribed by law, or by the charter and ordinances of the city of Wilmington relating to fire protection, in the city of Wilmington. * "Section 13. Within three months after the taking over by the 'department of public safety,' of the real and personal property of the several fire companies, the said 'the mayor and council of Wilmington' shall pay to the proper officers of the Volunteer Firemen's Relief Association, the sum of fifteen thousand dollars, the same being in full payment for all claims and demands whatsoever." The department of public safety, newly created by this act, undertaking to act in accordance with the provisions of section 5, prepared a plan for the establishment of a fire department and submitted the same to the council of the city for its approval. This plan, so submitted, was presented to the 7. Improvements and additions to the fire $303,500 100,000 115,000 108,500 15,000 ployment of trained experts and other 15,000 40,000 $697,000 "If your honorable body approves the above plan you are hereby requested to cause to be issued bonds which when sold will net this department six hundred ninety-seven thousand dollars ($697,000) for the purpose of establishing a paid fire department in accordance with said plan. "Respectfully, "S. K. Smith, "I. P. Wickersham, "Wm. B. Megear, "Directors Department of Public Safety." The council, upon whom the law had cast the responsibility of passing upon the plan, was satisfied with that which was presented, and on June 30 last, attempting to act under the authority of section 6, it passed an ordinance providing for the issuance and sale of bonds in the amount of $697,000, which is the amount of the total estimated cost of establishing the fire department as evidenced by the plan above referred to. The bonds were duly advertised for sale and were sold to a New York purchaser at a price below par. They have not yet been delivered. The bill asks that their delivery be enjoined, on the ground (1) that there never was any plan submitted to the council by the |