Palotta v. Jackson Light & Traction Co.

Smith, C. J., delivered the opinion of the court. The court below refused, though requested by appellant so to do, to submit to the jury the question of whether appellee’s “driver was negligent in not driving to the right,” instead of to the left, of the road on the occasion in question, and granted, at the request of appellee, an instruction “that what is known as the law of the road only applies to drivers of vehicles which are in motion on the public roads of the country, and the statutes which prescribe the rule of conduct denominated as the law of "the road have no application in this case.” It is unnecessary for us to determine whether or not section 4412 of the Code applies to the streets within a municipality, for the reason that, even should it be held not to apply thereto, it but announces a custom so long and universally observed as to be, in the absence of a statute, a part of our common law applicable to all highways. 37 Cyc. 269; 2 Elliott, Roads and Streets (3 Ed.), sec. 1078. In England the rule is that “in meeting, each party must keep to the left,” and according to Elliott, ■supra, in a note to section 1079, “this rule is thus stated in an old rhyme: ‘£ £ ’Tis a law of the road Though a paradox quite, If you keep to the left, You’ll always be right.’ ” With us, however, the rule is that, when persons meet on a highway, each must keep to the right, and “if there [66] is no statute upon the subject, proof of this custom is not necessary, for the court will take judicial knowledge of it/’ Elliott, supra, sec. 1080; Lee v. Foley, 113 La. Ann. 663, 37 So. 594. This rule, however, is not an inflexible one, and circumstances may arise which will make it. necessary to violate it. In the case at bar it is beyond question that, when appellee’s vehicle approached the place where the accident occurred, the right side of the street was occupied by a wagon, and, since two bodies cannot occupy the same space at the same time, there was nothing for appellee’s driver to do but turn to the left. He was therefore justified in so doing, for “that which is not otherwise lawful, necessity makes lawful, and necessity makes a privilege which supersedes the law.” It follows, therefore, that the court below committed no error in refusing to grant the instruction requested by appellant, and that no harm resulted to him by reason of the granting of the instruction requested by ap-pellee, for the reason that appellee was entitled to an instruction charging the jury that in so far as the law of the road is concerned its driver was justified in turning to the left. There being no merit in the other matters complained of, the judgment of the court below is affirmed. Affirmed-