Smith v. Dygert

[615] By the Court, Hubbard, J. The revised statutes (1 R. S. 695, § 1,) provide that whenever any persons traveling with any carriages shall meet on any turnpike road or public highway in this state, the persons so meeting shall seasonably turn their carriages to the right of the center of the road, so as to permit such carriages to pass without interference or interruption, under the penalty of five dollars for any neglect or offense, to be recovered by the party injured. The center of the road as defined in Earing v. Lansingh, (7 Wend. 185,) is the center of the worked part, irrespective of the smooth or traveled track. So that persons meeting are required to turn their vehicles to the right of that dividing line, although attended with inconvenience, resulting from roughness of the road. This rule of the road must be strictly observed, except obstacles insuperable or extremely difficult to overcome intervene. But it is contended, and with reason I think, that such construction should not be given to the statute, as applied to the winter season, when the depth of snow renders it difficult if not impossible to ascertain the center of the worked part of the road. To apply this construction to the season of snows would, in my judgment, defeat the very object of the statute. That object was to prescribe a general rule, which should establish the rights of travelers so clearly as to leave no room for doubt or mistake. When there is no snow upon the ground, the worked part of the road can be readily seen, and vehicles can be conducted with precision to either side of its center, with entire certainty. Hot so when a mantle of snow covers the ground. It can not be presumed that any traveler has a previous knowledge of the precise center of the worked part of all or any considerable portion of the road he may travel; and hence, to extend the statute, as construed in Earing v. Lansingh, to all seasons and circumstances, would be to require, in the season of deep snows, an observance of a rule under a penalty, entirely impracticable. It would be wholly impossible for the traveler to ascertain where the center of the worked part of the road is, and hence he could not drive with reference to it. The statute does not define what shall be regarded as the cen [616] ter of the road, and I think the legislature could not have intended the absurdity of requiring persons meeting to guide their "vehicles with reference to a line which could not be ascertained. It seems to me that it is a general and reasonable construction of the statute, to define the center of the road when obscured by snow, to be the center of the beaten or traveled track, without reference to the worked part. Guided by this line, the rights of travelers are certain, well understood, and no difficulty or mistake can arise. [Oswego General Term, April 5, 1852. In this case, the defendant compelled the plaintiff to give the ■whole of the traveled road, and hence incurred the penalty of five dollars. The defendant’s sleigh, it seems, was loaded with wood, but this fact is not stated in the proofs, nor is the depth of snow or other obstacle alledged as an excuse for his monopoly of the road. The judgment of the county court must be affirmed. Wm. F. Alkn, Hubbard and Pratt, Justices.]