Lewis v. Stout

15 Citing cases

  1. Washtenaw Rd. Com'rs v. P.S. Comm

    349 Mich. 663 (Mich. 1957)   Cited 19 times

    A revisal repealing all acts repugnant to the provisions thereof cannot affect statutes which are omitted, and which are not repugnant to its provisions. State v. Pollard, 6 R.I. 290. The rule of implied repeal is clearly inapplicable also where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions of earlier acts as are inconsistent with it, which is regarded as a declaration that it shall repeal only such provisions, and leave unaffected such as are not inconsistent. Endlich, Interpretation of Statutes, § 203; Patterson v. Tatum (USDC Cal), 3 Sawy 164; Lewis v. Stout, 22 Wis. 234; Gaston v. Merriam, 33 Minn. 271 ( 22 N.W. 614). Applying these rules to the present case, it must be held that section 3 of the act of 1887 was not repealed. The court therefore had power to impose the sentence, commencing after the former sentence shall have expired."

  2. In re Estate of Kinsey

    152 Neb. 95 (Neb. 1949)   Cited 19 times

    As an elementary proposition, of course, if Mrs. Kinsey were guilty of negligence proximately causing the accident as alleged by plaintiff and heretofore discussed, then Heitman did not assume the risk thereof. See, Miller v. Mathis, 233 Iowa 221, 8 N.W.2d 744; Edwards v. Kirk, 227 Iowa 684, 288 N.W. 875; Stout v. Lewis, 11 La. App. 503, 123 So. 346; Marks v. Dorkin, 105 Conn. 521, 136 A. 83, 61 A. L. R. 1224; Hedding v. Pearson, 76 Cal.App.2d 481, 173 P.2d 382; Panhandle S. F. Ry. Co. v. Haywood (Tex. Civ. App.), 227 S.W. 347; Hanaman v. Liberty Trucking Co., 243 Wis. 478, 11 N.W.2d 130, 149 A. L. R. 640. The foregoing instructions contained no such qualifications of the rule, and in that regard, the effect of the order erroneously entered by the trial court subsequently granting a new trial, and dismissing plaintiff's action upon the ground that plaintiff's decedent assumed the risk as a matter of law, was to erroneously assume and conclude that plaintiff's decedent assumed the risk of Mrs. Kinsey's negligence.

  3. Edwards v. Kirk

    288 N.W. 875 (Iowa 1939)   Cited 23 times

    "One is entitled to assume that another will exercise proper care until he perceives or ought reasonably to perceive that that other is not doing so, and he does not assume the risk that another will by some sudden negligent act or omission subject him to danger. Stout v. Lewis, 11 La. App. 503, 123 So. 346. A pedestrian crossing a highway and injured by the negligent operation of an automobile upon it, or the driver of one car injured by collision with another, may be guilty of contributory negligence, but he does not assume the risk of the sudden negligent act or omission of the party who caused the collision. 1 Pollock, Torts, 173. So the mere fact that there is a possibility known to the guest in an automobile that the driver may be guilty of a negligent act or omission may not be a sufficient basis upon which to hold that he has assumed the risk.

  4. Willi v. Schaefer Hitchcock Co.

    53 Idaho 367 (Idaho 1933)   Cited 24 times

    From the following authorities, the rule is that it is a question of the agent's right or authority to invite a guest to ride, not the nature of the activity of, or the business or reason for, the guest being in the car, other than that he was such authorized invitee, which determines the master's or employer's liability. As indicated in the opinion supra, there was evidence to justify the conclusion that Mr. Bruce had authority to invite a guest to ride with him and that the trip was on company business, therefore the company would be liable to the guest whether the guest was on company business or not. ( Philadelphia Reading R. Co. v. Derby, 14 How. (U.S.) 468, 14 L. ed. 502; Paiewonsky v. Joffe, 101 N.J.L. 521, 129 Atl. 142, 40 A.L.R. 1335; Tyler Co. v. Kirby's Admr., 219 Ky. 389, 293 S.W. 155; Stout v. Lewis, 11 La. App. 503, 123 So. 346; Fedden v. Brooklyn Eastern Dist. Terminal, 204 App. Div. 741, 199 N.Y. Supp. 9; Louisville N. R. Co. v. Marlin, 135 Tenn. 435, 186 S.W. 595, L.R.A. 1917A, 417; Nash v. Longville Lumber Co. 148 La. 943, 88 So. 226; 7-8 Huddy, Cyc. of Automobile Law, pp. 268, 269, sec. 101.) Petition for rehearing denied.

  5. Freedman v. Hurwitz

    116 Conn. 283 (Conn. 1933)   Cited 39 times
    Recognizing the defense, but, after trial, declining to find it applicable under the facts found

    One is entitled to assume that another will exercise proper care until he perceives or ought reasonably to perceive that that other is not doing so, and he does not assume the risk that another will by some sudden negligent act or omission subject him to danger. Stout v. Lewis, 11 La. App. 503, 123 So. 346. A pedestrian crossing a highway and injured by the negligent operation of an automobile upon it, or the driver of one car injured by collision with another, may be guilty of contributory negligence, but he does not assume the risk of the sudden negligent act or omission of the party who caused the collision. 1 Pollock, Op. Cit., p. 173.

  6. Krashin v. Grizzard

    31 S.W.2d 984 (Mo. 1930)   Cited 18 times

    (4) A judgment by default could not be legally rendered while a motion to stay the proceeding was pending and undisposed of. 34 C.J. 171, sec. 384; The Osprey v. Jenkins, 9 Mo. 643; Raming v. St. Ry. Co., 157 Mo. 513; Daugherty v. Lanning Harris C. . G. Co., 265 S.W. 873; Case v. Smith, 257 S.W. 151. (5) Appellants knew that attorney for defendants, in the cause where default judgment was obtained, was sick and took advantage of that fact, and the court was justified in setting aside default judgment on that ground. Moore v. Davison, 210 Mo. App. 9, 239 S.W. 532; Bank v. Martin, 171 Mo. App. 194; McElvain v. Maloney, 186 S.W. 747; Bresnehan v. Price, 57 Mo. 422; Stout v. Lewis, 11 Mo. 438; Martin v. Tob. Co., 53 Mo. App. 655. (6) The undisputed evidence showed that the motion to stay the proceeding was delivered to the clerk of the circuit court in case No. 203241 for filing and same was filed in contemplation of law without regard as to whether he noted it of record.

  7. Jackson v. Young

    99 So. 2d 400 (La. Ct. App. 1957)   Cited 16 times

    The facts in the case at bar distinguish it from the cited cases. The Orleans Court of Appeal in Stout v. Lewis, 11 La. App. 503, 123 So. 346, 348, was faced with the following situation: the plaintiff was riding on a running board on an automobile contra to a City Ordinance prohibiting persons from riding on the running board or fender of the vehicle or hanging on or hitching on the rear of the vehicle. Plaintiff was injured when another car struck the automobile upon which plaintiff was riding.

  8. Salone v. Shreveport Rys. Co.

    41 So. 2d 240 (La. Ct. App. 1949)   Cited 3 times
    In Salone v. Shreveport Rys. Co. (La.App. 2d Cir. 1949), 41 So.2d 240, an 18-year-old boy was killed while riding on the rear fender of an automobile in violation of a municipal ordinance.

    Robinson v. Miller, La. App., 177 So. 440. This is true even in cases where the probabilities are that plaintiff would not have been injured had he been inside the car. Stout v. Lewis, 11 La. App. 503, 123 So. 346. As to the quantum, we are convinced that the award of the District Court was inadequate.

  9. Robinson v. Miller

    177 So. 440 (La. Ct. App. 1937)   Cited 8 times
    In Robinson v. Miller, La. App., 177 So. 440, the petitioner alleged that the operators of the two cars "were driving their said vehicles at a reckless, careless and negligent speed and in total disregard of the safety of petitioners' child."

    On behalf of the defendant Schiffler, the argument is made that because plaintiffs' son was riding on the running board of the Ford truck in violation of rule 22 of section 3 of Act No. 21 of 1932, he was guilty of negligence which precludes his recovery; citing Lampkin v. McCormick, 105 La. 418, 29 So. 952, 83 Am.St.Rep. 245, and Belden v. Roberts, 3 La.App. 338. It is sufficient answer to this contention to say that, though it is negligence for a person to ride on a running board in defiance of a prohibitory statute, that circumstance alone is not sufficient to establish contributory negligence on the part of the offender so as to preclude his recovery in an action for damages against the owner or operator of a vehicle which collides with the one on the running board of which the person is riding. In Stout v. Lewis, 11 La.App. 503, 123 So. 346, 348, plaintiffs' minor son, John Stout, Jr., in violation of a city ordinance, was riding on the running board of an automobile when it collided with another car. As a result of the collision he was thrown to the ground and his leg broken.

  10. Balsamo v. Hall

    170 So. 402 (La. Ct. App. 1936)   Cited 5 times

    There is no plea that this constituted contributory negligence on the part of the child, or on the part of his father, who permitted him to stand in that position, but, even if there was such a plea, we would find it impossible to hold that his location had legal causal connection with the damage ultimately sustained by him. In Stout v. Lewis, 11 La. App. 503, 123 So. 346, we considered the question of whether or not a person riding on the running board of an automobile could be precluded from recovering by reason of the fact that he had carelessly placed himself in a position of danger and' we held that, unless the position assumed by the person could be said to be responsible for the injury, he could not be deprived of recovery. This leaves for our consideration only the question of the amount to be awarded plaintiff in his own behalf and for the use and benefit of his three children.