The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-11-10

ana that no effort or prcc0utlou OF the de-
fendant could have prevented the occurrence.
Fales vs.. Dearborn, l Pick. S4l, was case
precisely like the present There the Court
instructed the jury, that the defendant, who
was turning a corner upon the left, was an
sweraele for all the Injury, and the Court
above held that the defendant. before at
tempting TO cross In that manner, should have
waited 10 see IL be would thereby Interfere
with persous in the proper exercise Of their
right In Lovejoy rs Dolan, 10 Cush, 49o,
the defendant was driving around corner,
upon the right side, when he eollided with
the plaintiffs coach, which was on the left
The judge declined TO dismiss the case on
[ these facts, and instructed the jury that the
statute did not apply to such a cas- that the
[ position Of the plaintiffs coach was 10 be
I considered as circumstance bearing upon
| the question of negligence on his pSrt. The
Supreme Court, (Bigclow, J., afterwards c.
- sustained their ruling. using this Ian.
Z guage: The language of the statute mani
I testify has reference only TO the meeting Of
/ persons travelling on the same highway. The
/ terms "meet" aud pass are used in their
strict Specification, aud are intended to apply
only where travellers are approaching each
other from opposite diretious, intending to
pass on the same road. They cannot with
accuracy be said 10 meet and pass, when they
/ come together in different directions from
I two roads or streets which intersect each
other Resides b.. so H.
that whenever any persons shall meet each
other on any road, &c, each person shall sea
sonably drive, &c, to the right of the middle
part of such road" clearly contemplates
only one road upon which travellers are COM
ing towards each other from opposite d.
reetious.n But We do not regard the view
Of the learned Court in the last case as deci-
sive of the rights of the parties in this case
Ii was the plaintiff in the former case, and
not the defendant, who was on the left side
The instructions, leaving the whole question
TO the jury, were precisely those given in this
case, and were expressly approved. Fales rs
Dearborn, Hbi supra, was disapproved in Love
JOY rs. DOlsu, in so far as the Court had decid-
ed that there was lsgGl negligence, instead Of
leaving it TO the jury. In Pluekwell rs VIII
son, 5. c. * p, S75. Anderson, j., held ''that a
person is not bound TO keep on the ordinary
side of the road, but that il he did not do so,
be was bound to use more care and diligence,
and keep better lookout" In the case at
bar, the jury by their verdict, affirmed the
want of such due care, as would absolve the
defendants servant and put the collision
under the.eategory ofthose accidents in which
neither party is to blame.
Was this negligence of the servant, in law,
the negligence of the plaintiff! In Goodhue
vs. Dix, Gray, Isl, the action was founded
upon the statute, and the Court held that the
remedy was not against the owner OF the
team, who was not shown to be implicated
in the servants act, but was solely against
the servant Its TO be observed, that the
action in that case was brought under the
statute by the declaration, and that no
syerment was made of carelessness or
negligence on the part of the defend
ant or his servant. The Court below
made the defendant responsible for the re-
suits Of the servants act, in emitting to
bear to the right, and were overruled. In
the present case, which was appealed from
the Police Court, no written declaration was
made, or required, the plaintiff relying on
his common law rights, as well as on the
statute. In the Massachusetts statute, every
person offending against its provisions, be-
sides being liable to fine, is expressly made
liable for all damage resulting Our statute
makes the offender personally liable to
dne, but does not refer the general civil
liability TO him. We think, therefore, that
the common law liability of the plaintiff,
for his servants negligence is not affected by
this statute.
The evidence offered was pT-ima .fdeie suf-
ieient TO show that the servant was acting in
the scope of his usual employment lSmith's
Master and Servant, p. 1S4, ct Passi1l. The
terms Of hiring were known to the defend
ant. His servant was driving, and if this
was a servant engaged for other duties, as
house servant for instance, and not for driy-
ing, it was easy for the defendant to show it,
The test of the masters liability is not in
his consent or intention, nor indeed is it in
the intention Of the servant All persons
owe to the community the duty Of selecting
servants for driving, who can be trusted to
drive iprudently in the common highways
The rule is clearly drawn in Howe VS..
Newmarch, Il Allen Sc, (Hoar J.,) thus:
The master is not responsible as a
trespasser unless by direct or implied
authority to the servant he consents to the
wrongful act But if the master give an
order to 4 servant which implies the use Of
force and violence to Others, leaving to the
discretion of the servant to decide when the
occasion arises TO which the order applies,
and the extent and kind of force TO be used,
he is liable if the servant in executing the
order makes use of force In a manner or to 8
degree which is unjustifable, and in an action
of tort in the nature of an action on the case,
the master is not responsible if the wrong
done by the servant is done without his au-
thority, and not for the purpose Of executing
bis orders or doing his work So that if the
servant, wholly for purpose of bis own,
disregarding the object for which he Is en-
ployed, and not intending by his act to exc
cute it, does an injury 10 another not within
the scope of his employment, the master is
not liable. But if the act be done in the ex-
ecation Of the authority given him BY his
master, aud for the purpose Of performing
what the master had directed, the master
will h. resnoossb1e vrhefkar fha -,-o..--