CHAPTER LX. INJURIES ON HIGHWAYS. § 1165. Injuries while driving on the highway-Liability in general. § 1169. Contributory negligence on highways-Duty to look for defects and dangers. § 1170. What is and what is not proper use of highway by traveler. § 1173. § 1174. Skittish or scared horse-Defective vehicle or harness. § 1165. Injuries while Driving on the Highway-Liability in General.-A traveler on the highway is liable for any injury which he may cause to another by want of care on his part; i. e., want of such care as ordinarily prudent and skillful men would use under the same circumstances. Great care, it is said, should be used in driving a carriage through a crowded street. From the mere happening of an accident between travelers on the highway, no presumption of negligence on the part of either arises; the plaintiff must therefore prove that the defendant was negligent, and that his own carelessness did not contribute to the injury. gence is a question for the jury. The question of negli- Am. Dec. 694; Schmidt v. Harkness, Dressler v. Davis, 7 Wis. 527; Lane v. Crombie, 12 Pick. 177. Schienfeldt v. Norris, 115 Mass. 17; Templeman v. Haydon, 12 Com. B. 507; Sheehan v. Edgar, 58 N. Y. 631; Vincent v. Stinehour, 7 Vt. 62; 29 Am. Dec. 145; Wakeman v. Robinson, 1 Bing. 213; 8 J. B. Moore, 63; Brooks v. Schwerin, 54 N. Y. 343; Munroe v. Leach, 7 Met. 274. be justified in leaving the case to them where the plaintiff's evidence is equally consistent with the absence as with the presence of negligence in the defendant. It is proper to tell them that if they believe, from the evidence, that the injury was caused by the negligence or fault of the defendant driver, without any greater want of care or skill on the part of the plaintiff driver than could reasonably be expected of a person of ordinary prudence and skill in such a situation, the plaintiff is entitled to recover.2 It is not negligence per se to drive a team at a "lively trot" in the streets of a city. One so driving is not limited to any particular rate of speed, but is bound simply to use proper care not to injure other persons lawfully upon the streets. If damages are inflicted by reason of the breaking of the carriage or harness of a traveler on the highway, the traveler or owner of the harness or vehicle is liable only on the principle of want of ordinary care. It must be shown by the plaintiff that he knew, or might with reasonable diligence have known, of the defect, and was negligent in not repairing it. The mere fact that a wheel comes off, or that an axle-tree breaks, is not negligence per se.5 The fact that the plaintiff was at the time of the accident violating the law will not prevent him from recovering if the defendant could nevertheless have avoided the injury by the exercise of ordinary care; as, for instance, where he was driving at an unlawful rate of speed;" or without the number of bells required by a statute; or racing for a wager;" or traveling on Sunday;10 or suffering his vehicle to stand crosswise of the road. for the purpose 1 Cotton v. Wood, 8 Com. B., N. S., 568. 2 Comsen v. Ely, 37 Ill. 338. Crocker v. Ice Co., 92 N. Y. 652. Doyle v. Wragg, 1 Fost. & F. 7. 6 Welch v. Wesson, 6 Gray, 505; Morton v. Gloster, 46 Me. 520. 1 Hall v. Ripley, 119 Mass. 135. 8 Counter v. Couch, 8 Met. 436; Kidder v. Dunstable, 11 Gray, 342. Welch v. Wesson, 6 Gray, 505. 10 Schmid v. Humphrey, 48 Iowa. 652. of unloading;1 or stopping in his pung in a traveled street, waiting for two of his acquaintances to swap horses; or suffering his ass to go fettered in the highway; or leaving his horse standing in the highway.* ILLUSTRATIONS.-A driver was negligent in not having a "skid" or brake to check his wagon when going down hill, and in looking at his horses so that he did not see the deceased until he was within three yards of him. The deceased was guilty of some negligence in attempting to cross the road where there was no regular crossing. Held, that his representative was entitled to recover if the defendant could nevertheless have avoided the accident by the exercise of reasonable care: Springett v. Ball, 4 Fost. & F. 472. § 1166. Law of the Road-Keeping to the Right. By the law of the road, a traveler in any vehicle in passing another coming towards him must keep to the right." Failing to keep to the right is evidence of negligence on his part in case of a collision, but it does not make the party absolutely liable, as circumstances may make it necessary to drive to the left, instead of to the right." Where two persons meet traveling in their wagons upon the highway, and a collision takes place, and one of them is thrown from his wagon and injured, in order that the person injured may maintain an action for the damages sustained by him, the injury must not have been caused by any want of ordinary care on his part to avoid it, although he was traveling in the manner prescribed by the statute, and 1 Steele v. Burkhardt, 104 Mass. 59; 6 Am. Rep. 191. Contra, Stiles v. Geesey, 7 Pa. St. 439. 2 Bigelow v. Reed, 51 Me. 325. 3 Davies v. Mann, 10 Mees. & W 546. Streett v. Laumier, 34 Mo. 469. 5 Wilson v. Rockland Mfg. Co., 2 Harr. (Del.) 67; McLane v. Sharpe, 2 Harr. (Del.) 481. This common-law rule is adopted by statute in some states: See Mass. Rev. Stats., c. 51, sec. 1; Mich. Comp. Laws, 1871, sec. 2002; Palmer v. Barker, 11 Me. 338; 1 N. Y. Rev. Stats., 695, sec. 1; Fales v. Dearborn, 1 Pick. 344. As to the rule when both are going in the same direction, it has been held that proof of custom is not admissible: Bolton v. Colder, 1 Watts, 360. 6 Jones v. Andover, 10 Allen, 20; Goodhue v. Dix, 2 Gray, 181; Spofford v. Harlow, 3 Allen, 176; Clay v. Wood, 5 Esp. 44; Wayde v. Lady Carr, 2 Dowl. & R. 255. See Brooks v. Hart, 14 N. H. 307. McLane v. Sharp, 2 Harr. (Del.) 481; Strouse v. Whittlesey, 41 Conn. 559; Beckerlee v. Weiman, 12 Mo. App. 354. 5 the other party was not.1 The traveler is not obliged to go to the extreme right; it is sufficient that he goes far enough for the other to pass safely.2 Nor need a traveler keep on the right side of the road all the time; this is required of him only when meeting another traveler.3 A driver on the wrong side of the road must use greater care than if he was on the proper side. If he is on the wrong side of the road, he must give way to a vehicle on the right side. The duty under a statute to turn to the right, it is held, does not apply where one vehicle is going along a street into which another is turning from a cross street, nor where two vehicles meet at the intersec-. tion of two streets. Under a statute requiring travelers meeting each other on the highway to drive to the right of the middle of the traveled part of the road or bridge when practicable, it is the duty of the traveler, when it is difficult or unsafe for him to drive to the right, to stop a reasonable length of time at some convenient part of the road to enable the other person to pass, and without any request from him. The fact that the plaintiff was at the time of the collision on the wrong side of the road does not prevent his recovering if the defendant could nevertheless, by the exercise of ordinary care, have avoided the injury." Nor does the fact that the defendant is thus violating the law of the road entitle the plaintiff to recover damages of him, if the plaintiff could have avoided the collision by the exercise of ordinary care; he cannot negligently or wantonly run into the defendant, and then 1 Kennard v. Burton, 25 Me. 39; 43 Am. Dec. 249; Parker v. Adams, 12 Met. 415; 46 Am. Dec. 694. 2 Wordsworth v. Willan, 5 Esp. 273. 3 Parker v. Adams, 12 Met. 415; 46 Am. Dec. 694; Daniels v. Clegg, 28 Mich. 32; Palmer v. Barker, 11 Me. 338; Wordsworth v. Willan, 5 Esp. 273; Brooks v. Hart, 14 N. H. 307. 375. Pluckwell v. Wilson, 5 Car. & P. 5 Palmer v. Barker, 11 Me. 338. Lovejoy v. Dolan, 10 Cush. 495; Smith v. Gardner, 11 Gray, 418. 1 Garrigan v. Berry, 12 Allen, 84. 8 Kennard v. Burton, 25 Me. 39; 43 Am. Dec. 249. And see Earing v. Lansingh, 7 Wend. 185. Jones v. Andover, 10 Allen, 20; Clay v. Wood, 5 Esp. 44; Chaplin v. Hawes, 3 Car. & P. 555; Simmonson v. Stellenmerf, 1 Edm. Sel. Cas. 194; Smith v. Gardner, 11 Gray, 418. make him pay damages for the resulting harm simply because the defendant was violating the law.1 Persons meeting on highways owe to each other reciprocal duties, and are bound to use reasonable precautions to avoid collision.2 5 The law of the road or the statutes of this country do not apply as between a person on horseback and a vehicle, or a vehicle and a pedestrian; nor where both vehicles are going in the same direction; nor to vehicles. not moving or passing; nor to buildings that are being moved through a public highway. When a driver attempts to pass another going in the same direction on a public road, he does so at his peril. At least, he must be responsible for all damages which he causes to the one whom he attempts to pass, and whose right to the proper use of the road is as great as his, unless he is guilty of such recklessness, or even gross carelessness, as would bring disaster upon himself. The Michigan statute, adopted from Massachusetts, enacts that the traveler shall "seasonably drive his carriage or other vehicle to the right of the middle of the traveled part of such bridge or road, so that the respective carriages or other vehicles aforesaid may pass each other without interference." The "traveled part" of the road was formerly, in Massachusetts, held to mean that part which is wrought for traveling, and was not confined simply to the most traveled wheel-track, or to any track which might happen to be made in the road by the passing of vehicles; and the supreme court of Michigan, adopting with the statute |