The Road and the Roadside Part 3

After the roads are ready for use and beautified by shade trees and green parks at convenient places, we are confronted with the question, How are they to be used by the public and the owners of adjoining estates? We, as a people, are not only continental and terrestrial travellers, but we are continually pa.s.sing hither and thither over the public ways of this State, and consequently it is important for us to know how to travel the common roads in a legal and proper manner.

In the first place, every one who travels upon a public thoroughfare is bound to drive with due care and discretion, and to have an ordinarily gentle and well trained horse, with harness and vehicle in good roadworthy condition, as he is liable for whatever damages may be occasioned by any insufficiency in this respect.[32]

[32] 4 Gray, 178.

Another duty which every traveller is bound to observe is to drive at a moderate rate of speed. To drive a carriage or other vehicle on a public way at such a rate or in such a manner as to endanger the safety of other travellers, or the inhabitants along the road, is an indictable offence at common law, and amounts to a breach of the peace; and in case any one is injured or damaged thereby, he may look to the fast driver for his recompense. But it does not follow that a man may not drive a well-bred and high-spirited horse at a rapid gait, if he does not thereby violate any ordinance or by-law of a town or city; for it has been held that it cannot be said, as matter of law, that a man is negligent who drives a high-spirited and lively-stepping horse at the rate of ten miles an hour in a dark night.[33]

[33] 8 Allen, 522.

It then behooves every one to drive with care and caution, whether he is going fast or slow; and it also behooves him to see that his servants drive with equal care and caution, for he is responsible to third persons for the negligence of his servants, in the scope of their employment, to the same extent as if the act were his own, although the servants disobey his express orders. If you send your servant upon the road with a team, with instructions to drive carefully and to avoid coming in contact with any carriage, but instead of driving carefully he drives carelessly against a carriage, you are liable for all damages resulting from the collision; and if the servant acts wantonly or mischievously, causing thereby additional bodily or mental injury, such wantonness or mischief will enhance the damage against you.[34]

[34] 3 Cush. 300; 114 Ma.s.s. 518.

You may think this a hard law; but it is not so hard as it would be if it allowed you to hire ignorant, wilful, and incompetent servants to go upon the road and injure the lives and property of innocent people without redress save against the servants, who perchance might be financially irresponsible. It should however be stated in this connection that if your team should get away from you or your servant, without any fault on your or his part, and should run away and do great damage, by colliding with other teams, or by running over people on foot, you would not be held responsible, as in law it would be regarded as an inevitable accident. Thus, if your horse should get scared by some sudden noise or frightful object by the wayside, or through his natural viciousness of which you were ignorant, or by some means should get unhitched after you had left him securely tied, and in consequence thereof should plunge the shaft of your wagon into some other man's horse, or should knock down and injure a dozen people, you would not be liable, because the injury resulted from circ.u.mstances over which you had no control.[35]

[35] 1 Addison on Torts, 466.

CHAPTER X.

"THE LAW OF THE ROAD."

There are certain rules applicable to travellers upon public ways, which are so important that everybody ought to know and observe them. The law relative thereto is known as "the law of the road."

These rules relate to the meeting, pa.s.sing, and conduct of teams on the road; and it is more important that there should be some well established and understood rules on the subject than what the rules are. In England the rules are somewhat different, and some of them are the reverse of what they are in this country. But the rules and the law relating thereto in this country are about the same in every State of the Union. Our statutes provide that when persons meet each other on a bridge or road, travelling with carriages or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the travelled part of such bridge or road, so that their respective carriages or other vehicles may pa.s.s each other without interference; that one party pa.s.sing another going in the same direction must do so on the left-hand side of the middle of the road, and if there is room enough, the foremost driver must not wilfully obstruct the road.[36]

[36] Pub. St. c. 93.

Although these are statutory rules, yet they are not inflexible in every instance, as on proper occasions they may be waived or reversed. They are intended for the use of an intelligent and civilized people; and in the crowded streets of villages and cities, situations or circ.u.mstances may frequently arise when a deviation will not only be justifiable but absolutely necessary. One may always pa.s.s on the left side of a road, or across it, for the purpose of stopping on that side, if he can do so without interrupting or obstructing a person lawfully pa.s.sing on the other side.[37] And if the driver of a carriage on the proper side of the road sees a horse coming furiously on the wrong side of the road, it is his duty to give way and go upon the wrong side of the road, if by so doing he can avoid an accident.[38] But in deviating from the "law of the road," one must be able to show that it was the proper and reasonable thing to do under the circ.u.mstances, or else he will be answerable for all damages; for the law presumes that a party who is violating an established rule of travelling is a wrongdoer.[39] Of course a person on the right side of the road has no right to run purposely or recklessly into a trespa.s.ser, simply because he has wrongfully given him the opportunity to receive an injury, and then turn round and sue for damages arising from his own foolhardiness and devil-may-care conduct.[40]

[37] Angell on Highways, -- 336.

[38] Shear. & Red. on Negligence, -- 309.

[39] 121 Ma.s.s. 216.

[40] 12 Met. 415.

Every one seeking redress at law on account of an accident must be able to show that he himself was at the time in the exercise of ordinary care and precaution, and it is not enough for him to show that somebody else was violating a rule of law. When the road is unoccupied a traveller is at liberty to take whichever side of the road best suits his convenience, as he is only required "seasonably to drive to the right" when he meets another traveller; but if parties meet _on the sudden_, and an injury results, the party on the wrong side of the road is responsible, unless it clearly appears that the party on the proper side has ample means and opportunity to prevent it.[41]

[41] 10 Cush. 495; 3 Carr. & Payne, 554; Angell on Carriers, -- 555.

Where there is occasion for one driver to pa.s.s another going in the same direction, the foremost driver may keep the even tenor of his way in the middle or on either side of the road, provided there is sufficient room for the rear driver to pa.s.s by; but if there is not sufficient room, it is the duty of the foremost driver to afford it, by yielding an equal share of the road, if that be practicable; but if not, then the object must be deferred till the parties arrive at ground more favorable to its accomplishment. If the leading traveller then wilfully refuses to comply, he makes himself liable, criminally, to the penalty imposed by the statute, and answerable at law in case the rear traveller suffers damage in consequence of the delay. There being no statute regulations as to the manner in which persons should drive when they meet at the junction of two streets, the rule of the common law applies, and each person is bound to use due and reasonable care, adapted to the circ.u.mstances and place.[42]

[42] 12 Allen, 84.

By the "travelled part" of the road is intended that part which is usually wrought for travelling, and not any track which may happen to be made in the road by the pa.s.sing of vehicles; but when the wrought part of the road is hidden by the snow, and a path is beaten and travelled on the side of the wrought part, persons meeting on such beaten and travelled path are required to drive their vehicles to the right of the middle of such path.[43] Many drivers of heavily loaded vehicles seem to think that all lightly loaded ones should turn out and give them all the travelled part of the road. No doubt a lightly loaded vehicle can often turn out with less inconvenience than a heavily loaded one, and generally every thoughtful and considerate driver of a light vehicle is willing to, and does, give the heavy vehicle more than half the road on every proper occasion; but the driver of the heavy vehicle ought to understand that it is done out of courtesy to himself and consideration for his horses, and not because it is required by any rule of law. The statute law of the road in this State makes no distinction between the lightly and the heavily loaded vehicle. Both alike are required to pa.s.s to the right of the travelled part of the road. In case of accident the court would undoubtedly take into consideration the size and load of each vehicle, as bearing upon the question of the conduct of the drivers under the circ.u.mstances, and their responsibility would be settled in accordance with "the law of the road," modified and possibly reversed by the situation of the parties and the circ.u.mstances surrounding them at the time.[44]

[43] 4 Pick. 125; 8 Met. 213.

[44] 111 Ma.s.s. 360.

A traveller in a common carriage may use the track of a street railway when the same is not in use by the company; but the company is ent.i.tled to the unrestricted use of their rails upon all proper occasions, and then such traveller must keep off their track, or else he renders himself liable to indictment under the statutes of the State.[45]

[45] Pub. St. c. 113, -- 37; 7 Allen, 573.

CHAPTER XI.

EQUESTRIANS AND PEDESTRIANS.

In England "the law of the road" applies as well to equestrians as to travellers by carriage, and I can see no good reason why it should not do so here. The statutes are silent on the subject, and I cannot find that our Supreme Court has ever had occasion to pa.s.s upon the question; but it has been decided in some of the States that when a traveller on horseback meets another equestrian or a carriage, he may exercise his own notions of prudence, and turn either to the right or to the left at his option.[46] By common consent and immemorial usage an equestrian is expected to yield the road, or a good share of it, to a wagon or other vehicle. It has been decided in Pennsylvania that if he has a chance to turn out and refuses to do so, and his steed or himself is injured by a collision, he is remediless.[47]

[46] 24 Wend. 465.

[47] 23 Penn. St. 196.

It is clear that the statute law of the road in this State is not applicable to people on horseback, as it is expressly limited to carriages or other vehicles, and therefore equestrians are amenable only to the common law of the land. By this law they are required to ride on the public ways with due care and precaution, and to exercise reasonably good judgment on every occasion, under all the attendant circ.u.mstances. When they meet wagons, whether heavily loaded or not, they ought to yield as much of the road as they can conveniently,--certainly more than half, as they do not need that much of the road to pa.s.s conveniently,--but when they meet a vehicle in the form of a bicycle there seems to be no good reason why they should yield more than half the road. For the convenience of themselves and the public at large, on meeting vehicles or each other, they ought to pa.s.s to the right, as by adopting the statute law of the road in this respect order is promoted and confusion avoided.

A public thoroughfare is a way for foot-pa.s.sengers as well as carriages, and a person has a right to walk on the carriage-way if he pleases; but, as Chief Justice Denman once remarked, "he had better not, especially at night, when carriages are pa.s.sing along."[48] However, all persons have an undoubted right to walk on the beaten track of a road, if it has no sidewalk, even if infirm with age or disease, and are ent.i.tled to the exercise of reasonable care on the part of persons driving vehicles along it. If there is a sidewalk which is in bad condition, or obstructed by merchandise or otherwise, then the foot-pa.s.senger has a right to walk on the road if he pleases. But it should be borne in mind that what is proper on a country road might not be in the crowded streets of a city. In law every one is bound to regulate his conduct to meet the situations in which he is placed, and the circ.u.mstances around him at the time. A person infirm with age or disease or afflicted with poor eyesight should always take extraordinary precaution in walking upon the road.[49] Thus, a man who traverses a crowded thoroughfare with edged tools or bars of iron must take especial care that he does not cut or bruise others with the things he carries. Such a person would be bound to keep a better lookout than the man who merely carried an umbrella; and the man who carried an umbrella would be bound to take more care when walking with it than a person who had nothing.[50]

[48] 5 Carr. & Payne, 407.

[49] 1 Allen, 180.

[50] 1 Addison on Torts, -- 480.

Footmen have a right to cross a highway on every proper occasion, but when convenient they should pa.s.s upon cross-walks, and in so doing should look out for teams; for it is as much their duty, on crossing a road, to look out for teams, as it is the duty of the drivers of teams to be vigilant in not running over them. "The law of the road" as to the meeting of vehicles does not apply to them.

They may walk upon whichever side they please, and turn, upon meeting teams, either to the right or to the left, at their option, but it is their duty to yield the road to such an extent as is necessary and reasonable; and if they walk in the beaten track or cross it when teams are pa.s.sing along, they must use extraordinary care and caution or they will be remediless in case of injury to themselves. They may travel on the Lord's day for all purposes of necessity or charity; and they may also take short walks in the public highway on Sundays, simply for exercise and to take the air, and even to call to see friends on such walks, without liability to punishment therefor under the statutes for the observance of the Lord's day, and they can recover damages for injuries wrongfully sustained while so walking.[51]

[51] 14 Allen, 475; Barker v. Worcester, 139 Ma.s.s. 74.

CHAPTER XII.

OMNIBUSES, STAGES, AND HORSE-CARS.

Nearly every one has occasion, more or less often, to travel over the public ways in the coaches of pa.s.senger carriers. Whoever undertakes to carry pa.s.sengers and their baggage for hire from place to place is bound to use the utmost care and diligence in providing safe and suitable coaches, harnesses, horses, and coachmen, in order to prevent such injuries as human care and foresight can guard against.

If an accident happens from a defect in the coach or harness which might have been discovered and remedied upon careful and thorough examination, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a pa.s.senger happening by reason of such accident.