hard-and-fast rule, and the center does not necessarily mean the exact center, but may be the beaten path. It is practically impossible to observe the statute or custom in all instances, and under all conditions or circumstances. In the case of a heavily loaded vehicle, or for any other reason, the driver of such wagon should stop in order to enable the other one to pass, and if he does neither, and a collision happens, he will be liable for any injury occasioned to the other. Heavily loaded vehicles may be generally excused from turning out, so as to avoid a light vehicle, or a horseman."

8

These, and many other similar illustrations, might be furnished in support of the impropriety of adopting a hard-and-fast rule, leaving it open for the courts to adapt their rulings to the exigencies of the case. So the current weight of authority is to the effect that the mere act of driving on the wrong side of the street is not negligence per se, or evidence of negligence on the part of a driver of a vehicle.10 "His negligence must necessarily arise out of an effort, or want of effort, to avoid a collision," upon meeting another team.11 Still we find conclusions in reports of decisions to the effect that "one who violates the 'law of the road' by driving on the wrong side assumes the risk of such an experiment, and is required to use

6 Clark v. Commonwealth, 4 Pick. 125.

7 Kennard v. Burton, 25 Me. 39, 43 Am. Dec. 249. See Grier v. Sampson, 27 Pa. St. 183.

8 Beach v. Parmeter, 23 Pa. St. 196; Grier v. Sampson, 27 Pa. St. 183.

9 Id.

10 Wayde v. Carr, 2 Dowl. & R. 255; Brooks v. Hart, 14 N. H. 307; Meservey v. Lockett, 161 Mass. 332, 37 N. E. 310; Wood v. Luscomb, 23 Wis. 287; Parker v. Adams, 12 Met. 415, 46 Am. Dec. 694; Spofford v. Harlow, 3 Allen, 176; Neanow v. Uttech, 46 Wis. 581, 1 N. W. 221; Rand v. Syms, 162 Mass. 163, 38 N. E. 196. 11 Id.; Riepe v. Elting, 48 Am. St. Rep. 375, note.

greater care than if he had kept on the right side of the road; and if a collision takes place in such circumstances, the presumption is against the party who is on the wrong side. And this is especially true where the collision takes place in the dark." 12 A presumption against the violator of the law of the road naturally arises, as it is more than likely that he is responsible for an injury, but this presumption does not rise high enough to make it negligent per se, but is a mere circumstance to go to the jury with all the evidence in the case. The law of the road as to turning to the right does not apply to one who is turning into one street from another.13

§ 270. Relative Rights of Footmen and Vehicles.Persons traveling on foot and in vehicles in roads and streets have equal rights; it cannot be said that either has a superior right.14 Many travelers do not realize this truth, or do not know what is right under particular circumstances, and indeed it is always a question for the jury. Equality of right requires that both driver of vehicle and footman shall exercise ordinary care under the circumstances of a given case to avoid injury. The principal difficulty or conflict between persons traveling in streets lies in crossing the streets, especially in crowded thoroughfares. The same due and ordinary care must be exercised by persons in crossing public streets as in other transactions of life. The duty is equally incumbent on both pedestrian and driver of vehicle or

12 Angell v. Lewis, 20 R. I. 391, 78 Am. St. Rep. 881, 39 Atl. 521; Brooks v. Hart, 14 N. H. 307; Wilson v. Rockland Mfg. Co., 2 Harr. (Del.) 67; Fales v. Dearborn, 1 Pick. 345. See Walkup v. May, 9 Ind. App. 409, 36 N. E. 917.

13 Lovejoy v. Dolan, 10 Cush. 495; Morse v. Sweenie, 15 Ill. App.

14 Brooks v. Schwerin, 54 N. Y. 343; Myers v. Dixon, 3 Jones

horseman to be on the lookout for danger. While what constitutes ordinary care is a question of fact, it would seem that, as matter of law, ordinary care requires, as some courts have held, that a pedestrian crossing, or about to cross, a public street should be on the lookout, and take the necessary precautions demanded by the character of the thoroughfare so as to avoid collision with approaching horsemen or vehicles. The authorities seem to require the footman to look both ways. "Both parties must be on the lookout, the one for passing teams, and the other for foot-passengers. Both have the right of way, and both must be equally cautious." Both are bound to use reasonable care to avoid collision.16

15

It certainly would seem that prudence would require the foot-traveler to be on the lookout, and so with the driver, not in the sense of "stopping, looking and listening," as in approaching a railway track, but a lookout such as would be reasonably necessary in streets. Such a rule would not countenance a person walking across streets without turning at all, depending upon the caution of drivers of vehicles, but he must have such a realization of his condition and surrounding circumstances as will enable him to respect the rights of drivers of vehicles, and to know that he cannot take chances or make nice calculations on being able to cross the street and be able to avoid injury. If one makes a

& S. 390; Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578; Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331.

15 Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331; Schmidt v. McGill, 120 Pa. St. 412, 6 Am. St. Rep. 713, 14 Atl. 383; Buzly v. Philadelphia Traction Co., 126 Pa. St. 559, 12 Am. St. Rep. 919, 17 Atl. 895; Brooks v. Schwerin, 54 N. Y. 343; Noisi v. Empire Steam Laundry, 117 Cal. 257, 49 Pac. 185; Wolfskill v. Los Angeles Ry. Co., 129 Cal. 114, 61 Pac. 775.

16 Id.; Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578; Colton v. Wood, 8 Com. B., N. S., 568.

18

mistake in his calculations and is injured, then he has not exercised prudence, and cannot complain if he is injured.17 In some states the courts have apparently stumbled upon the question in respect to the necessity of a traveler to keep a lookout, first concluding that it was the duty of a traveler on foot upon crossing a street to look in both directions along the street for a reasonable distance, and that a failure so to do constituted contributory negligence. The trouble with such a conclusion is, in going too far in saying that a failure to look up a street for a reasonable distance rather invades the province of the jury. A lookout such as is reasonably necessary to avoid danger is all that is necessary. A later decision by the same court announcing the view above stated retracts from the position by making the inapt comparison with the rule of crossing railroads. It is said that the "duty to look up and down a street before attempting to cross the track of a railroad does not, as a matter of law, attach to one who is about to pass from one side to another of a city street."19 Of course the rule of duty applicable to travelers in crossing railroad tracks should not apply to crossing city streets, so far as concerns a lookout for wagons and other vehicles.

The correct rule requiring travelers to keep such a lookout as is reasonably necessary under the circumstances has been stated, but it does not follow from the mere fact that a person has not looked up and down the street that he was not in the exercise of care, because, under the circumstances, he may have

17 Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578. 18 Barker v. Savage, 45 N. Y. 191, 6 Am. Rep. 66.

19 Moebus v. Herrmann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415.

Torts, Vol. I-37

been prudent and it is a question for the jury.20 Whether these rules apply to crossing at any part of the street cannot be safely stated, not at least so far as concerns the relative rights of foot-traveler and vehicles, though we have authority holding, so far as concerns obstructions in the street, that a traveler may cross at any point and is not restricted to the regular crossings.21 A driver must have his horse and vehicle under such usual, ordinary and reasonable control as to be able to prevent a collision.22 A driver must observe such watchfulness for footmen, and have his animal under such control, as will enable him to avoid injury to others who have corresponding and reciprocal rights in the streets.23

§ 271. Collisions Between Vehicles Passing in Same Direction. English and American law differ in regard to the respective duties of travelers upon highways when the one in the rear desires to pass the one in front of him. In England the one in front is required to give way to the one desirous of passing, by turning to the left,24 while in this country the one in front does not have to give way if there is room for the one behind to pass.25 The law of the road in this country is that when a driver attempts to pass a vehicle which is going in the same direction with himself, he must go to the left. But the one in the rear who attempts to pass the one in front assumes

20 Bowser v. Wellington, 126 Mass. 391; Williams v. Grealy, 112 Mass. 79; Randolph v. O'Riordon, 155 Mass. 331, 29 N. E. 583. 21 Raymond v. City of Lowell, 6 Cush. 524, 53 Am. Dec. 57. 22 Young v. Cowden, 98 Tenn. 577, 40 S. W. 1088.

23 Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331, citing Murphy v. Orr, 96 N. Y. 14; Brooks v. Schwerin, 54 N. Y. 343; Daniels v. Clegg, 28 Mich. 32; Shapleigh v. Wyman, 134 Mass. 118.

24 Wayde v. Carr, 2 Dowl. & R. 255.

25 Bolton v. Colder, 1 Watts, 360.