
    MARIANO MUÑOZ v. ATLAS TRANSFER COMPANY.
    San Juan,
    Law,
    No. 929.
    Injuby to Motorman in Collision op Truck and Car.
    Negligence — Street Car.
    1. The motorman of a street car has the right, when he sees an auto upon the track, to assume that it will turn off in time to avoid a collision; hut he must in the meantime remain in control of his car and in condition to avert an accident if the auto does not turn off the track.
    Note. — As to the right of motorman to assume that person on the-track will get out of the way, see note in 21 L.R.A. (N.S.) 880.
    
      Motorman — Doubt.
    2. A motorman is the actual representative of the owner of the' trolley car, responsible for the fortunes of the car, and in case of doubt as to the preponderance of the evidence cannot recover.
    Opinion filed May 9, 1914.
    
      Mr. J. Henri Brown for tbe plaintiff.
    
      Mr. N. B. K. Pettingill for tbe defendant.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbis case grows out of tbe same state of facts as Nos. 92T [post, 48], and 928 [ante, 44]. Tbe front part of tbe car was crushed to pieces and tbe motorman was severely injured.. He brings suit against tbe owners of tbe truck for bis injuries..

1. Tbe motorman of a street car bas tbe right, even when be sees an automobile upon tbe track, to assume that that vehicle will turn off in time to avoid a collision. Tbis right,, however, bas its limits. Tbe motorman must not meanwhile-lose control of bis car, and must remain in condition to avert an accident if tbe automobile in point of fact does not turn off tbe track. Davids, Motor Vehicles, § 171. Tbe motorman-bas tbe right to make tbis assumption because reasonable beings can properly be assumed to avoid danger of which they are informed. Tbis principle, however, can hardly be said to. apply in tbe case at bar, because tbe automobile in question was not moving, and tbe motorman did not see it. Tbe case-rests upon other principles.

2. It bas been beld in No. 928 that tbe owner of tbe trolley ■ear cannot recover under tbe circumstances surrounding both cases, because it is not established by a preponderance of tbe ■evidence that it did not contribute to its own injury. Can tbe motorman, wbo was tbe actual representative of tbe owner of tbe trolley car, be considered in any other light than tbe owner whom be represented?

Tbe motorman was in charge of tbe car, was a part of it, .subject to its fortunes, and, in fact, was responsible for its fortunes. If tbe accident was due to any defect in tbe machinery, which, of course, is not decided, at least this was something which could not be charged up to tbe defendant.

No reasoning is perceived by which a different view can be beld for tbe motorman from that which bas been beld for tbe owner of tbe car.

Tbe judgment, therefore, is for tbe defendant.  