will defeat his action when he fails to exercise that degree of care and prudence which may be reasonably expected from him.1 § 722. A railroad company which continues to use a defective and dangerous locomotive engine, after notice of its dangerous condition, is liable even to one of its servants engaged in running the engine for an injury sustained by him in consequence of the defects, without negligence on his part. This liability is placed upon the ground that the master is liable for his own negligence to his servant; and that this negligence may consist in the employment of unfit and incompetent servants and agents, or in the furnishing for the work to be done, or for the use of the servant, machinery or other implements and facilities improper and unsafe for the purposes to which they are to be applied.3 The employment of an intemperate or unskillful workman, or the retention of him, with knowledge, renders the master liable to a servant who is injured through the negligence or unskillfulness of the incompetent man. As the liability rests on the ground of negligence in the cmployer, he is not held liable, as for a defective structure, where he does his best to employ competent men to perform and supervise the work.5 The workmen being properly chosen, the master is not liable to one of them for the negligence of the other; and yet may be held liable where his own negligence combines with that of his servants to produce the injury. E. g., a railroad company is guilty of negligence in not sending out with a train a sufficient number of brakemen, and is liable to a servant on another train for a personal injury resulting therefrom and from the negligence of co-servants.7 § 723. The responsibility of the carrier for the safe conveyance of passengers is the same, whether the work is done by him personally or by his servants and agents. His own obligation is the measure of the 1 Thurber v. Harlem, B. M. & F. R. R. Co., CO N. Y., 326; McMahon v. Mayor &c. of New York, 33 N. Y., 642; Honesberger v. Second Ave. R. R. Co., 1 Keyes, 570. 2 Keegan v. The Western R. R. Co., 8 N. Y., 175; Coon v. Syracuse & Utica R. Co., 5 N. Y., 492; Farwell v. B. & W. R. R. Co., 4 Met., 49. 3 Wright v. N. Y. Central R. Co., 25 N. Y., 562; Priestly v. Fowler, 3 M. & W., 1; Hayden v. Smithville Manuf. Co., 23 Conn., 543; Plank v. N. Y. Central & Hudson R. R. Co., C0 N. Y., G07. + Laning v. N. Y. Central R. Co., 49 N. Y., 521. 5 Warner v. Eric R. Co., 39 N. Y., 468; Hard v. Vermont Central R. Co., 32 Vt., 473; see also, Gibson v. Erie R. Co., C3 N. Y., 449. 6 Hofnagle v. N. Y. Central & Hudson R. R. Co., 55 N. Y., 608; Haskins v. N. Y. C. & H. R. R. Co., 65 Barb., 129. 7 Flike v. Boston & Albany R. R. Co., 53 N. Y., 519; Sprong v. same Co., 58 N. Y., 56. diligence and circumspection and foresight demanded of those who are engaged in his employment. The act or neglect of the servant is that of the principal, who engages to assume and answer for it as his own; and it is immaterial whether the agent be in fact incompetent, or being competent proves himself negligent in performing the duties of his place. If he be an intemperate man or otherwise untrustworthy, his employer is answerable for any injury that may result from his misconduct; for it is a great neglect of duty in the carrier of passengers to entrust to such a person any responsibility for human life." It follows from the general rule of liability already stated, and it has been distinctly adjudged, that the carrier of passengers is answerable for any injury resulting from rash and furious driving, racing, or other reckless conduct in the conveyance of passengers. Merely fast driving is not of itself evidence of misconduct; but the least degree of imprudence or want of care in the driver renders his employers liable; and where a collision or other accident occurs while the driver is engaged in a race or trial of speed, the carrier is responsible in exemplary damages.1 The same principle applies to a railroad carrier. The company is liable to a passenger for the reckless conduct of an engineer in driving a train of cars with speed against obstructions upon the track in broad daylight; they are liable for his rashness in driving a train with improper speed over a defective track, or for running out of time on a track on which a train is due coming from an opposite direction. 5 § 724. Law of the Road. It is the duty of the carrier of passengers, as well as of all other travellers upon the highways, to observe the established usage or law of the road in passing other teams and vehicles. In England the custom is to keep to the left in passing; in this country 1 Ante § 710; Williams v. Vanderbilt, 28 N. Y., 217; Roberts v. Johnson, 58 N. Y., 613. 89. 2 Stokes v. Saltonstall, 13 Peters, 181; Eldridge v. Long Island R., 1 Sandf. 3 Peck v. Neil, 3 McLean C. C., 22; Monroe v. Leach, 7 Met., 274; Churchill v. Rosebeck, 15 Conn., 359; Mayor v. Humphries, 1 Carr. & P., 251; Gough v. Bryan, 5 Dowl. P. C., 765; Claflin v. Wilcox, 18 Vt., 605. 4 Peck v. Neil, supra, and cases above cited. Willis v. Long Island R. Co., 34 N. Y., 670, 675. 6 Buel v. N. Y. Central R. Co., 31 N. Y., 314; Carpue v. Brighton R., 5 Q. B., 747; Farwell v. Boston R., 4 Met., 49. The carrier is also liable for an injury caused by the sudden backing of a train, while a passenger is attempting to get off; and cannot escape liability by showing that the passenger was intoxicated: Millman v. N. Y. C. & II. R. Co., 66 N. Y., 642. the rule is reversed, each party keeping to the right.' But the rule is not so invariable as to require the traveller in all cases to keep exactly to the right; if a carriage coming in any direction leave sufficient room for any other carriage, horse or passenger on their proper side of the way, it is a sufficient compliance with the law of the road. Where the road is clear, the driver may go on what part of the road he thinks fit, and is not chargeable with the consequences, though by reason of his horses taking fright an injury is caused to a third person which might not have happened if he had been on the right side of the road.3 Under our statutes, wherever any persons, travelling with any carriages or other conveyances, shall meet on any turnpike road or public highway in this State, the persons so meeting shall seasonably turn their carriages to the right of the centre of the road, so as to permit such carriages to pass without interference or interruption, under a penalty for every neglect or offence, to be recovered by the party injured. On 1 a question arising under this act, it was adjudged that by a sound construction of it, the parties are to keep to the right of the center of the road, although it may be more difficult for one party to turn out than the other; the act was designed to settle and establish the rights of travellers in such a manner that there can be no mistake about them; and it does establish, upon consideration of public policy, a broad, general rule, which is strictly enforced, although sometimes it may operate inconveniently upon parties. It is not the centre of the smooth or most travelled part of the road which is the dividing line, but the center of the worked part, although the whole of the smooth or most travelled path may be upon one side of that centre, unless the situation of the road is such that it is impracticable or extremely difficult for the party to turn out.5 A traveller on horseback meeting another horseman or vehicle on a public highway, is not required to turn out in any particular direction ;6 all that is required is prudent care under existing circumstances. In England, on the contrary, it is adjudged that the rule of the road as to 1 Story on Bailm., § 599; Kennard v. Burton, 25 Maine R., 39. 2 Wordsworth v. Willan and others, 5 Esp. R., 273. 3 Aston v. Heaven, 2 Esp. R., 533; Foster v. Goddard, 40 Maine, 64. 41 R. S., 873, 3d ed.; 2 R. S., 965, 5th ed. Earing v. Lansing, 7 Wend. R., 185; Johnson v. Small, 5 B. Mon., 25; Burdick v. Worrall, 4 Barb., 596; the rule is qualified when a road is covered with deep snow; Smith v. Dygert, 12 Barb., 613. 6 Dudley v. Bolles, 24 Wend. R., 465. The owner of the adjoining land may occupy that part of the sides of the road, not subject to the right of way. 6 Cowen R., 189. keeping the proper side applies to saddle horses as well as to carriages; and where a carriage and horse are to pass, the carriage must keep its proper side, and so must the horse. If, however, the driver of a carriage is on his proper side, and sees a horse coming furiously on the wrong side of the road, it is the duty of the driver of the carriage to give way and avoid an accident, although in so doing, he goes a little on what would otherwise be his wrong side of the road.1 § 725. When a traveller deviates from the rule of the road, he is bound to use a greater degree of care and caution, and keep a more watchful lookout to avoid coming in contact with other vehicles, than is necessary when he remains on the right side of the road. And so where parties on the road meet on a sudden, and a collision ensues, the party on the wrong side must answer for the damages, unless the other has been deficient in the exercise of ordinary care; and his failure to adopt on the instant the best means of avoiding a collision, is not considered want of ordinary care in a party driving on the right side. The circumstances are to be considered in the application of the rule. Parties driving along a road in the night time, must on that account observe the rule with care; while a party driving along the highway in the daytime, with a heavy load, is not so strictly bound, when he meets a light wagon where there is plenty of room.5 So on the crowded streets of a city, situations and circumstances frequently arise where the driver is justified in deviating from the law of the road, and is actually bound to do so to avoid a collision." The statute prescribing the rule, that persons in carriages meeting on the highway must seasonably turn to the right of the centre of the road, receives a reasonable interpretation. If the road be covered with deep snows or drifts, the parties are to turn to the right of the centre of the beaten or travelled track. The statute in some of the States, in terms, requires travellers to keep to the right of the centre of the worked portion of the road, which when covered with snow is construed to mean the beaten and travelled track. § 726. One man's failure to observe the law of the road does not justify another in purposely riding or driving against him; nor can an obstruction 1 Turley v. Thomas, 8 Carr. & Payne R., 103. Pluckwell v. Wilson, 5 C. & Payne, 375. 3 Chaplin v. Hawes, 3 C. & Payne, 554; Kennard v. Burton, 25 Maine, 39. 4 Cruden v. Fentham, 2 Esp., 685. Grier v. Sampson, 27 Penn St., 183; Wordsworth v. Wielan, 4 Esp., 273. 6 Jackson v. Tollett, 2 Stark., 37; Waydo v. Carr, 2 Dow. & K., 255. Smith v. Dygert, 12 Barb., 613. Jaquith v. Richardson, 8 Met., 213; 5 B. Mon., 25. in the way be made a ground of action to one who rides upon it with great violence, or without using ordinary care; nor can a private action be maintained to remove the obstruction.2 The practical operation and effect of the law or usage of the road, appears when an action is brought to recover damages against a party, caused by his driving or turning on the wrong side. The injured party recovers, when it appears that without fault on his part, he was injured by the illegal and careless act of the defendant; and he fails to recover, when it appears that his fault or negligence in any way contributed to the injury of which he complains.3 The fact that the plaintiff is on the wrong side of the road, at the time of a collision, indicates negligence; but it does not prevent à recovery, where the defendant intentionally or unnecessarily drives against him. Keeping on the right side of the road, a party can only be required to exercise ordinary diligence to prevent a collision. The same rule holds when a person driving a span of horses is overtaken by another team, rushing against his wagon; he may recover, where he could not avoid the injury by the use of ordinary care. The carriage in advance has the right to occupy any part of the road; and the carriage attempting to pass, should ordinarily calculate upon the exercise of this right, and so keep clear of a collision." § 727. The rule of the road does not apply with respect to a carriage and a foot passenger; for as regards foot passengers, a carriage may go on either side of the road. But a foot passenger has a right to cross the carriage road, and a person driving a carriage on it is bound to use. reasonable care to avoid driving against him. So in crossing the streets of a city; neither footmen nor teams have any right of way superior to the other. They have each the right in common, and equally with the other, and are bound in its exercise to use reasonable care for their own 7 1 Butterfield v. Forrester, 11 East, 60; Smith v. Smith, 2 Pick., 621. 2 Dawson v. St. Paul Fire Ins. Co., 15 Minn., 136; Houck v. Wachter, 34 Md., 265. 3 Morris v. Phelps, 2 Hilton, 38; Burcle v. N. Y. Dry Dock Co., 2 Hall, 151; Lane v. Crombie, 12 Pick., 177; Kennard v. Burton, 25 Maine, 39. 4 Burdick v. Worrall, 4 Barb., 596. 5 Center v. Finney, 17 Barb., 94; Davies v. Mann, 10 Mees. & Wels., 546. An act of neglect by the plaintiff preceding that of the defendant, will not excuse the defendant where he has time to prevent an injury; Brownell v. Flagler, 5 Hill, 282, and note. 6 Mahew v. Boyce, 1 Stark., 423. Boss v. Litton, 5 C. & Payne, 407; 473; Wolf v. Beard, 8 C. & Payne, 373; Barb., 368, 380. Hawkins v. Cooper, 8 C. & Payne, |