Clifford v. Tyman

Smith, J. The statute requiring a traveller with a vehicle, who meets another person so travelling on a highway, to turn seasonably to the right of the centre of the travelled part of the road (G. L., e. 75, s. 11,) does not require either of two travellers going in the same direction to turn to the right of the other. They must pass each other in such manner as may be most convenient under the particular circumstances. Sherman & Redf. on Negligence, s. 311. It is the right of every person to travel on any part of the highway that may suit his convenience, not occupied by another, provided no one meets him with a vehicle having occasion or a desire to pass him. Brooks v. Hart, 14 N. H. 307, 310; Gale v. Lisbon, 52 N. H. 174; Lovejoy v. Dolan, 10 Cush. 495; Smith v. Gardner, 11 Gray 418. When two persons are travelling in a highway in the same direction there is no rule of law that compels one to travel behind the other, or gives one the exclusive right to precede the other. The rear traveller may pass to the front whenever he may do so in safety, with the exercise of ordinary care. The plaintiff, to recover, must show, 1, that his damages were occasioned by the fault of the defendant, and, 2, that the want of ordinary care and prudence on the part of his driver did not contribute to the injuries to his horse and wagon. We understand the referee’s finding to be that the defendant was not in the exercise of due care, that is, of ordinary care, at the time of the col *511 lision. The defendant did not expect the plaintiff’s horse would back into her path, and therefore believed she would be able to pass in safety, and acted in good faith in attempting it. But it is found she did not exercise due care in driving so near the plaintiff’s horse that she saw was unmanageable. A traveller is bound to exercise only ordinary care and diligence in providing himself with a suitable horse. Tucker v. Henniker, 41 N. H. 317. It is not the rule that the traveller must be provided with horses, carriages, and harnesses absolutely sound and free from defect in every respect and at every point, nor to the exercise of extraordinary care and prudence in respect to his equipage. A horse, though reasonably safe, may prove unmanageable in some cases where a horse perfectly trained would have avoided the accident. Clark v. Barrington, 41 N. H. 44, 51. This rule in regard to diligence, applied in a suit by a traveller against a town for damages from a defective highway, is equally applicable in the present case. We understand the referee’s finding to mean, that, under the circumstances reported, the plaintiff’s horse was a suitable one, and reasonably safe for his wife to drive at the time of the accident. We cannot say as matter of law that there was want of due care in this respect. The plaintiff was not bound to furnish “a strong and thoroughly experienced driver,” but a driver of ordinary care and prudence. By the referee’s finding, that it was not imprudent for the plaintiff to permit his wife to drive at the time of the accident, we understand he meant that she possessed ordinary skill and prudence. He does not find that she failed to exercise ordinary skill and prudence in the management of her horse at the time of the accident. The plaintiff having prevailed upon both issues, is entitled to recover. Exceptions overruled. Allen, J., did not sit: the others concurred.