CHAPTER IV.
REPAIRS.
After a road is located and constructed, economy as well as public convenience demands that it be kept in good condition the year round. If a road is allowed to go for several months at a time without repairs, ruts and holes are likely to form on its surface, and frequently the middle becomes lower than the sides. Then, in order to put it in good condition again, a great deal of work and expense are necessary, whereas if every break is repaired immediately, much less labor and expense are required to keep up the road for the same length of time, besides the increased advantage and convenience of a good road from day to day.
No doubt our roads could be kept in better condition than at present without any additional expense, by the application of good sense and business principles in their management. The present system in nearly all our country towns consists in dividing up the roads into districts, and appointing a highway surveyor for each district, with a stated allowance of money to expend on repairs; and sometimes the tax-payer residing in the district has a right to work out his road tax. This surveyor is usually a farmer, who is very busy during planting-time in the spring, and during the haying and harvesting seasons; and consequently he works upon the roads between the planting and the haying seasons, or in the autumn after he has finished the fall work upon his farm. It sometimes happens that he works out all the money allowed him in early summer, and then nothing more is done for a year.
If a road is only to be repaired once a year, the work ought to be done in the spring, when the soil is moist and will pack together hard, and not in the summer, when it is dry and turns easily to dust, nor in the late autumn, when the fall rains make it muddy. The surveyor generally makes the repairs by ploughing up the road-bed and smoothing it off a little, or else by ploughing up the dust, turf, and stones alongside the road-bed, and scraping the same upon it. After this is done he goes about his farm work.
The stones in the road soon begin to work up to the surface, and remain there like so many footballs for every horse to kick as he passes over them. A horse-path naturally forms in the centre of the road, and wheel-ruts upon either side, which make excellent channels for the water to run in during every rain-storm. At first the water finds its way over the water-bars in small quantities; but the channels increase in depth with every shower, and soon during every hard rain there are from one to three streams of water running over the road-bed from the top to the bottom of nearly every hill, and as a consequence the road is washed all to pieces. The road then generally remains in this condition until the next fall, and sometimes until the next spring. When a road is repaired in this way, it follows as a matter of course that it is in a bad condition all the year round. Just after repairs the road is wretched, for it is then in better condition to be planted than to be travelled over; when trodden down a little, the wash of the rains and the loose stones make it bad again; it then grows worse and worse until another general repair makes it wretched again, and so onad infinitum. The only way to remedy this state of affairs is to change the system.
There should be only one highway surveyor for the whole town, with authority to supply such men and teams as may be necessary to keep the roads in a good state of repair. Let them not only work in the early summer and fall, but at all times when there is anything which needs to be done to the roads. A few shovels of dirt and a little labor in the nick of time will do more towards keeping a road in good condition than whole days of ploughing and scraping once or twice a year only. Every good housewife knows that there is a world of truth in the old maxim, "A stitch in time saves nine." The managers of all our well-conducted railroads understand this. They have a gang of men pass often over each section of the roads.
What would be said of a mill-owner who should let his milldam wash away once or twice each year, and then rebuild it instead of keeping it in constant repair? The proprietors of the great turnpike road from Sacramento to Virginia City in California, which runs mainly over mountains a distance of one hundred and fifty miles, and has an annual traffic of seven or eight thousand heavy teams, have found by careful experiment that the cheapest way to keep that great road in good condition is to have every portion of it looked after every day, and during dry weather every rod of it is sprinkled with water. This continual-repair system was adopted in Baden, Germany, 1845. It was soon found that it was less expensive and more satisfactory than the old system of annual repairs. Other European countries soon found it to their advantage to follow Baden's example in this respect; and now the new system is in universal use in all the civilized nations of Europe. As a consequence the roads in those countries as a general thing are in splendid condition throughout the year. They are on an even grade, and as smooth as a racing-track in this country. The poorest roads in France, Germany, Switzerland, or Great Britain are as good as the best of our own. They are nearly all macadamized, and are kept in continuous repair by laborers and competent engineers and surveyors, who give their sole labor and attention to the roads as a business throughout the year.
But it is not necessary to go to Europe to prove the superiority of the new system over the old. Many towns in this country, especially those situated in the vicinity of the large cities, have adopted the new system, and find by experiment that it is better than the old. An intelligent citizen and town official of Chelmsford, Mass., Mr. Henry S. Perham, thus describes the operation of the old and the new system in that town: "Until 1877 the old highway district system, common in the New England country towns, was in vogue here. Eleven highway surveyors were chosen annually in town-meeting, who had charge of the roads in their respective districts; and although the town appropriated money liberally for highway repairs, the roads seemed to be continually growing worse, owing to the superficial manner in which the repairs were made. In 1877 the town adopted an entirely different plan for doing the work. The plan was to choose one surveyor for the whole town, who was to have charge of all the roads, and the town to purchase suitable teams and implements to be kept at the town farm. This is now the ninth year in which this system has been in practice, and the result of the change has been most satisfactory. The advantages are that the surveyor is chosen for his especial fitness for the work. The men under him are mostly employed by the month and boarded at the town farm, where the teams are also kept. A force now costing the town ten dollars per day will accomplish more and better work in one week than would be ordinarily accomplished by a surveyor under the old system in a season. And the reason is obvious. The men and teams are accustomed to the work; the best implements and machinery are employed, road-scrapers doing the work where the nature of the soil will permit; and what is still more important, the work is directed by the surveyor to the best advantage. In the winter season the teams break out the roads after heavy snows, and in fair weather cart gravel on to the roads as in summer. And although we have an extraordinary length of road to support,—namely, two hundred and seventy-five miles, being more by twenty-five miles than any other town in the State,—there has been a marked and continual improvement in their condition.
"When this plan was first presented to the attention of the town, it met with sharp opposition, and passed by only a small majority; but the favor with which it is now regarded may be judged by the fact that since its adoption it has met with almost universal approval, and we should now as soon think of going back to the school-district system or to support the churches by taxation as of returning to the old method of repairing our roads."
This method is undoubtedly better than the old district system; but the system of the future will not include a road-scraper except for the building of new roads. Any system is radically defective which scrapes the dust and worn-out soil of the gutters or the turf and loam of the roadside upon the road-bed. Perhaps this kind of repairing is better than none in many localities; but as civilization advances and the true principles of road-making become better known, after the foundation of a road-bed has been properly established, nothing but good road material will ever be put upon it, and this will be put there from time to time as needed to keep up a continual good condition of the road.
CHAPTER V.
LAWS RELATING TO THE LAYING OUT OF WAYS.
New roads are not often required now to reach and develop new tracts of land, except in large towns and cities; but they are frequently needed to shorten distances and to improve grades. Consequently the laws relative to the laying out, maintenance, and use of highways are of personal interest to every citizen, and many are also interested in the laws relating to private ways.
The public have a right to lay out ways for purposes of business, amusement, or recreation, as to markets, to public parks or commons, to places of historic interest or beautiful natural scenery.1And such ways may be established by prescription, by dedication, or by the acts of the proper public authorities. Twenty years' uninterrupted use by the public will make a prescriptive highway. Many of the old roads in our towns and cities have become public thoroughfares by prescriptive use, which began in colonial days, and perhaps then followed Indian trails, or were first used as bridle-paths.
When the owner in fee of land gives to the public a right of passage and repassage over it, and his gift is accepted by the public, the land thus travelled over becomes a way by dedication. The dedication may be made by the writing, the declaration, or by the acts of the owner. It must, however, clearly appear that he intended and has made the dedication; and when it has been accepted by the public it is irrevocable. Formerly it could be accepted by the public by use, or by some act or circumstance showing the town's assent and acquiescence in such dedication; but now no city or town is chargeable for such dedicated way until it has been laid out and established in the manner provided by the statutes.2It was formerly thought that this act applied to prescriptive ways as well as to dedicated ways; but it is now settled that it applies only to ways by dedication, and ways by prescription are not affected by it.3
The proper town or city authorities have jurisdiction to lay out or alter ways within the limits of their respective cities or towns, and to order specific repairs thereon. The county commissioners have also jurisdiction to lay out public ways, the termini of which are exclusively within the same town; and they are also clothed with authority to lay them out from town to town. Hence roads may be either town ways or public highways. When the proceedings for their location originate with the town or city officials, they are town ways; and when the proceedings originate with the county commissioners, they are public highways.4Suppose a new road is wanted, or an alteration in an old one is desired, within the limits of a town, a petition therefor may be presented either to the town authorities or to the county commissioners. If the proposed road is not situated entirely within the limits of one town or city, then the commissioners alone have jurisdiction in the premises. When the selectmen or road commissioners of a town decide to lay out a new road, or to alter an old one, their doings must be reported and allowed at some public meeting of the inhabitants regularly warned and notified therefor; but while the inhabitants are vested with the right of approval, they have no right to vote that the selectmen or road commissioners shall lay out a particular way, as it is the intention of the statute that these officials shall exercise their own discretion upon the subject.5If the town authorities unreasonably refuse or neglect to lay out a way, or if the town unreasonably refuses or delays to approve and allow such way as laid out or altered by its officials, then the parties aggrieved thereby may, at any time within one year, apply to the county commissioners, who have authority to cause such way to be laid out or altered. But when a petition for a public way is presented in the first instance to the county commissioners, or when the matter is brought before them by way of appeal, their decision on the question of the public necessity and convenience of such way is final, and from it there is no appeal. If damage is sustained by any person in his property by the laying out, alteration, or discontinuance of a public way, he is entitled to receive just and adequate damages therefor, to be assessed, in the first place, by the town or city authorities or by the county commissioners, and, finally, by a jury, in case one is demanded by him. He is entitled to a reasonable time to take off any timber, wood or trees, which may be upon the land to be taken; but if he does not remove the same within the time allowed, he is deemed to have relinquished his right thereto. In estimating the damage to the land-owner caused by the laying out or the alteration of a public way over his land, neither the city nor town authorities nor a jury are confined to the value of the land taken. He is also entitled to the amount of the damage done to his remaining land by such laying out or alteration.6But in such estimation of damages any direct or peculiar benefit or increase of value accruing to his adjoining land is to be allowed as a betterment, by way of set-off; but not any general benefit or increase of value received by him in common with other land in the neighborhood.7
The cost of making and altering ways, including damages caused thereby, is to be paid by the city or town wherein the same are located, provided the proceedings originate with the town or city authorities; but when the proceedings originate with the county commissioners, they divide the cost between the towns and the county in such manner as they think to be just and reasonable.8
CHAPTER VI.
LAW AS TO REPAIRS.
After highways, town-ways, streets, causeways, and bridges have been established, they are to be kept in such repair as to be reasonably safe and convenient for travellers at all seasons of the year at the expense of the town or city in which they are situated.
It is the duty of each town to grant and vote such sums of money as are necessary for repairing the public ways within its borders; and if it fails to do so, the highway surveyors, in their respective districts, may employ persons, as directed in the statutes, to repair the roads, and the persons so employed may collect pay for their labor of the town. In order to make such repairs, city and town authorities may select and lay out land within their respective limits as gravel and clay pits from which may be taken earth and gravel necessary for the construction and repairs of streets and ways.9And they may turn the surface drainage of the roads upon the land of the adjoining owners without liability.10But no highway surveyor has a right, without the written approbation of the selectmen, to cause a watercourse, occasioned by the wash of the road, to be so conveyed by the roadside as to incommode a house, a store, shop, or other building, or to obstruct a person in the prosecution of his business.11Properly authorized city or town officers may trim or lop off trees and bushes standing in the public ways, or cut down and remove such trees; and may cause to be dug up and removed whatever obstructs such ways, or endangers, hinders, or incommodes persons travelling therein.12Even the boundaries of public ways are so well guarded that when they are ascertainable no length of time less than forty years justifies the continuance of a fence or building within their limits; but the same may, upon the presentment of a grand jury, be removed as a nuisance.13
It is so important that the public ways be kept free for travel, that any person may take down and remove gates, rails, bars, or fences upon or across highways, unless the same have been there placed for the purpose of preventing the spreading of a disease dangerous to the public health, or have been erected or continued by the license of the selectmen or county commissioners.14A highway surveyor acting within the scope of his authority may dig up and remove the soil within the limits of the public ways for the purpose of repairing the same, and may carry it from one part of the town to another;15and he has a right to deposit the soil thus removed on his own land, if that is the best way of clearing the road of useless material.16
Though the law is imperative that the roads must be kept in good condition, and to this end gives municipal corporations great powers, yet let no one who is not a highway surveyor or in his employ imagine that he can repair a road not on his own land with impunity; for it has been decided that if an unauthorized person digs up the soil on the roadside by another person's land for the purpose of repairing the road, he is a trespasser and liable for damages, although he does only what a highway surveyor might properly do.17It is also the duty of cities and towns to guard with sufficient and suitable railings every road which passes over a bank, bridge, or along a precipice, excavation, or deep water; and it makes no difference whether these dangerous places are within or without the limits of the road, if they are so imminent to the line of public travel as to expose travellers to unusual hazard.18But towns are not obliged to put up railings merely to prevent travellers from straying out of the highway, where there is no unsafe place immediately contiguous to the way.19
The roads are for the use of travellers, and a city or town is not bound to keep up railings strong enough for idlers to lounge against or children to play upon.20
The travelled parts of all roads ought to be wide enough to allow of the ordinary shyings and frights of horses with safety, for shying is one of the natural habits of the animal;21although it seems that switching his tail over the reins is not a natural habit of the animal, as it has been decided that if a horse throws his tail over the reins and thereby a defect in the road is run against, no damages can be recovered.22
CHAPTER VII.
GUIDE-POSTS, DRINKING-TROUGHS, AND FOUNTAINS.
The statutes undertake to provide for the erection and maintenance of guide-posts at suitable places on the public ways; but a person has to travel but little in many of the towns of the State to come to the conclusion that the law is either deficient in construction or a dead letter in execution. The law makes it incumbent upon the selectmen or road commissioners of each town to submit to the inhabitants, at every annual meeting, a report of all the places in which guide-posts are erected and maintained within the town, and of all places at which, in their opinion, they ought to be erected and maintained. For each neglect or refusal to make such report they shall severally forfeit ten dollars. After the report is made the town shall determine the several places at which guide-posts shall be erected and maintained, which shall be recorded in the town records. A town which neglects or refuses to determine such places, and to cause a record thereof to be made, shall forfeit five dollars for every month during which it neglects or refuses to do so.
At each of the places determined by the town there shall be erected, unless the town at the annual meeting agrees upon some suitable substitute therefor, a substantial post of not less than eight feet in height, near the upper end of which shall be placed a board or boards, with plain inscription thereon, directing travellers to the next town or towns and informing them of the distance thereto.
Every town which neglects or refuses to erect and maintain such guide-posts, or some suitable substitutes therefor, shall forfeit annually five dollars for every guide-post which it neglects or refuses to maintain.23These forfeitures can be recovered either by indictment or by an action of tort for the benefit of the county wherein the acts of negligence or refusal occur; and any interested or public-spirited person can make complaint of such negligence or refusal to the superior court, or to any trial justice, police, district or municipal court, having jurisdiction of the matter.24
The selectmen may establish and maintain such drinking-troughs, wells, and fountains within the public highways, squares, and commons of their respective towns, as in their judgment the public necessity and convenience may require, and the towns may vote money to defray the expenses thereof.25But the vote of a town instructing the selectmen to establish a watering-trough at a particular place would be irregular and void, because towns in their corporate capacity have not been given the right by statute to construct drinking-troughs in the public highways. And towns would not be liable for the acts of the selectmen performed in pursuance of this statute, because the law makes the selectmen a board of public officers, representing the general public, and not the agents of their respective towns. However, if the inhabitants of a town should construct a drinking trough or fountain of such hideous shape, and paint it with such brilliant color, that it would frighten an ordinarily gentle and well-broken horse, by reason of which a traveller should be brought in contact with a defect in the way or on the side of the way, and thus injured, the town might be held liable to pay damages.26
It is my purpose to state what the law is, and not what it ought to be; but I will venture the suggestion that it would not be an unreasonable hardship on towns to require them to establish and maintain suitable watering-troughs at suitable places, and it would be a merciful kindness to many horses which now frequently have to travel long distances over dusty roads in summer heat without a chance to get a swallow of water from a public drinking-trough.
CHAPTER VIII.
SHADE TREES, PARKS, AND COMMONS.
The law of the Commonwealth not only requires the public ways to be kept safe and convenient, but of late years statutes have been passed allowing owners of land, improvement societies, cities and towns, to do something to beautify the roadsides and public squares of any city or town. A city or town may grant or vote a sum not exceeding fifty cents for each of its ratable polls in the preceding year, to be expended in planting, or encouraging the planting by the owners of adjoining real estate, of shade trees upon the public squares or highways.27Such trees may be planted wherever it will not interfere with the public travel or with private rights, and they shall be deemed and taken to be the private property of the person so planting them or upon whose premises they stand.28
Improvement societies, properly organized for the purpose of improving and ornamenting the streets and public squares of any city or town by planting and cultivating ornamental trees therein, may be authorized by any town to use, take care of, and control the public grounds or open spaces in any of its public ways, not needed for public travel. They may grade, drain, curb, set out shade or ornamental trees, lay out flower plots, and otherwise improve the same; and may protect their work by suitable fences or railings, subject to such directions as may be given by the selectmen or road commissioners. And any person who wantonly, maliciously, or mischievously drives cattle, horses, or other animals, or drives teams, carriages, or other vehicles, on or across such grounds or open spaces, or removes or destroys any fence or railing on the same, or plays ball or other games thereon, or otherwise interferes with or damages the work of such corporation, is subject to a fine not exceeding twenty dollars for each offence, for the benefit of the society.29
It is also a legal offence for any one wantonly to injure or deface a shade tree, shrub, rose, or other plant or fixture of ornament or utility in a street, road, square, court, park, or public garden, or carelessly to suffer a horse or other beast driven by or for him, or a beast belonging to him and lawfully on the highway, to break down or injure a tree, not his own, standing for use or ornament on said highway.30And no one, even if he be the owner of the land, has the right to cut down or remove an ornamental or shade tree standing in a public way, without first giving notice of his intention to the municipal authorities, who are entitled to ten days to decide whether the tree can be removed or not. And whoever cuts down or removes or injures such tree in violation of the law shall forfeit not less than five nor more than one hundred dollars for the benefit of the city or town wherein the same stands.31
CHAPTER IX.
PUBLIC USE OF HIGHWAYS.
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 passing 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
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
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
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 circumstances over which you had no control.35
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, passing, 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 pass each other without interference; that one party passing 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
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 circumstances may frequently arise when a deviation will not only be justifiable but absolutely necessary. One may always pass 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 passing on the other side.37And 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.38But 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 circumstances, 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.39Of course a person on the right side of the road has no right to run purposely or recklessly into a trespasser, 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
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 meeton 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
Where there is occasion for one driver to pass 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 pass 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 circumstances and place.42
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 passing 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.43Many 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 pass 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 circumstances, 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 circumstances surrounding them at the time.44
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 entitled 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
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 pass 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.46By 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
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 circumstances. 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 pass 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 pass 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-passengers 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 passing along."48However, 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 entitled 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-passenger 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 circumstances 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.49Thus, 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
Footmen have a right to cross a highway on every proper occasion, but when convenient they should pass 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 passing 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