Earing v. Lansingh — 7 Wend. 185

Majority

p. 185

Earing vs. Lansingh.

Headnote

Or a question arising under the acts of the legislature, requiring all persons meeting each other on any turnpike road or public highway to drive their carriages to the right of the centre of the road, it was adjudged that the true construction of the acts is, that persons thus meeting shall keep to the right of the centre of the worked part of the road.

It is not the centre of the smooth or most travelled part of the road which is the dividing line, but the centre of the worked part, although the whole of the smooth or most travelled path may be upon one side of that centre,

it is no defence that the party had no design to offend, that he attempted to prevent a collision, that the road on his side was rough and rutty, and that it was more difficult for him than for the other party to turn out; unless the obstacles to turning out arc insuperable or extremely difficult, he is without excuse.

Error from the Rensselaer common pleas. This cause was tried in the Renssalaer common pleas on appeal from a justice’s judgment. Lansingh sued Earing before the justice and recovered a penalty of five dollars for not turning out to the right of the centre of a road on which they were travelling in their waggons, in opposite directions. They were travelling in the town of Greenbush, on the Rensselaer and Columbia turnpike road; Lansingh was proceeding to, and Earing coming from the village of Greenbush; at the place where they met, the worked part of the road is not over 20 feet wide ; on Baring’s right the worked part of the road run close to the fence, and was very rough and rutty, being frozen ; on Lansingh’s right there was a distance of five or six rods over a smooth piece of ground, on which waggons frequently passed, whereby a path was made, and the descent from the worked part of the road was gradual, without-much of a ditch. When the parties approached each other, their waggons were in the beaten track; Lansingh was driving on a good trot: Earing slacked the pace of his horses, and turned them and the waggon entirely to the right of the beaten track, and drove upon that part of the road which was very rough and rutty. Lansingh continued to drive at the same rate, and kept directly in the smooth part of the road, and whilst Earing was turning out, Lansingh’s waggon struck the waggon of the defendant, and broke the defendant’s axletree; Lansingh’s

p. 186

ws-ggon sustained no injury. Baring was at the time en-¿ea?or¡Qg ge}: further out of the road to the right, and had Lamslngh checked his horses to a walk, the waggons would not have come in contact The beaten or smooth part of the * track on which Lansingh travelled was two feet to the east of the centre afilíe worked part of the road, measuring from ditch to ditch. The court charged the jury that the only question for them to decide was, whether the defendant was to the right of íks centre cftke mador not,and that in deciding that question tbs centre must be determined by the worked part of the road only; that unless the defendant had shewn that he was to the right of that centre, the penalty would attach; and if they believed the plaintiff’s witnesses, they were bound to find a verdict in his favor. The court further charged the jury, that it was not necessary for the plaintiff to shew a wilful design or negligence on the part of the defendant, but the bare fact of his being on the left hand side of the worked part of the road was sufficient to entitle the plaintiff to recover; and that neither the situation of the rogd by reason of its being rough and rutty, nor the efforts of the defendant to get out of the road, would afford any excuse "for the defendant, who was bound to keep his own side of the road at al! events, unless insuperable obstacles prevented; and that the manner in which the plaintiff drove his team could not avail any thing to defeat his right of action, as a person had an undoubted right to drive as he pleased, either fast or slow, if he confined himself to his own side of the road. The defendant excepted; the jury found a verdict for the plaintiff, on which judgment was entered, and the defendant sued out a writ of error.

J. Komi, for plaintiff in error.

S. Cheemr, for defendant in error,

cited Cro. Jac. 446.

By the Court,

The charge of the court below was correct. The 6th section of theact concerning turnpike roads, 2 R. L. 227, and also the 41st section of the act to regulate highways, 2 R. L. 283, provide that in all cases of persons meeting each other on any turnpike road or public

p. 187

highway in this state, travelling with carriages, sleighs, waggons or carts, the persons so meeting shall seasonably lam, drive and convey their carriages, «fee. to the right of ike centre of the road, so as to enable carriages to pass, each other without interference or interruption, under a penalty of $5 for every neglect or offence—to be recovered by the party aggrieved, in an action of debt, in any court having cognizance thereof &c. The court charged the jury that the true construction of the act was, that parties were to keep to the right of the centre of the worked part of the road, and that unless the defendant was to the right of that centre when the plaintiff’s waggon came in contact with his, the penalty had attached, and that the situation of the road as being rough and rutty on the defendant’s side, or the want of design on his part to run against the plaintiff would be no defence, unless the road on his side was such as;to render it impracticable for him to turn out; and that the case was not affected by the circumstance that the plaintiff was driving fast and the defendant slow. This is the sound construction of the act; it was designed to settle and establish the rights of travellers in such a manner that there could be no mistake about them ; each party is to keep to the right of the centre of the worked part of the road; although it may be more difficult for one party to turn out than the other, that is no answer to the action. The act establishes, upon consideration of public policy, a broad general rule, which must be 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 centre of the worked part, although the whole the smooth or most travelled path may be upon one side of that centre, unless the situation of the road is sucli that it is impracticable or extremely difficult for the party to turn out. No such difficulty existed in this case. The road on the defendant’s side was rough, from having been rutted and frozen, but not so much so as to present any serious obstacle to his riding or driving over it. The questions of fact were properly left to the jury, and their verdict is warranted by the evidence.

Judgment affirmed.