The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-11-10
Supreme Court-Octobcr Term,
1859.


TAaS Cssnsrsi,ss IS Nia, SstaEsr.
Tort for damages to plAinda's horse b,
collision with defendants team. The plain
tits son Was driving the plaintiff : two-horS'
wagon down Fort street, Honolulu, upon th'
right hand side. and near the corner Of King st.
the plaintiff's OF horse was struck IN th'
breast by the of shsft ofihe defendants mule
cart The mule was driven by the defendant:
servant, upon the len hand side OF the street
and was just turning the eoruer when tn,
accident occurred, The mule was going al
very slow troi, and the driver attempted tC
{ rein him up as soon as be saw the PLAINTIFF
I horses. The defendant was not personally
present, nor had be authorized his servant q
I drive thus. The force Of the collision was
such that the driver was thrown from the
cart. leiterof the defendants, in evidence,
admitted that his servant was driving, and
there WAS other testimony to the same effect,
bat there WAS no evidence that the servant
was specially employed as a driver, or other
wise. The Court Instructed the jury that
they might iufer, in the absence Of evidence
TO the contrary, that the servant was acting
within the scope Of his employment, aud
that il was tor them TO decide whether he
used due care, or was negligent in driving
around the corner as he did. The defend
snt's counsel claimed that, under the statute,
the plaintiffs only remedy was against the
servant, bat the Court overruled their mo.
tion TO dismiss the action on this ground.
The jury rendered verdict for the plaintiff,
with $40 damages.
Al the request Of the defendants counsel,
the judge presiding at the trial reserved the
questions of law, and reported the case for
the Court, ia baReo.
HAKrwELL, J.: This case presents points
OF interest TO the community. All persons
have right 10 travel freely upon the high
way, subject only to due regard to the
rights Of each other Those rights depend
upon certain statute regulations, upon Gus
tom, and upon the peculiar circumstances of
each case In England, where there is no
statute upon the subject, the custom requires
each traveller to bear to the left in meeting
The statutes of this Kingdom prescribe rs
follows:
Whenever any persons shall meet each
other on any bridge, road, or other highway,
travelling With carriages, wagons, carts, or
other vehicles, each person 80 meeting shall
seasOnSSly turn his horse or other animal, or
drive his carriage or other vehicle, TO the
right Of the middle OF the Travelled part of
such road or bridge, when practicable; so
- . II -.
aforesaid, may pass each other without inter
ference
when it is difficult or unsafe, for per
sous travelling with any of the aforesaid
carriages or vehicles, on account of their
beiug heavily laden, or otherwise, to turn or
drive their carriages, or other vehicles, 10 the
right Of the middle of such travelled part, as
Aforesaid. any person thus prevented, when
meeting with any other person travelling with
any Of the carriages, or vehicles aforesaid
shall stop reasonable time, al convenient
part Of the road, TO enable such other person
TO pass by"
Whenever 4 traveller ask another to
permit him TO pass, the vehicle OF the lat
ter being stationary at an inconyenient place
for passing by, or travelling at 4 slower rate
il shall BE the duty Of the person so request
ed, 10 make room for passing.
No person shall permit his carriage or We
hicle 10 travel or pass on any such bridge or
road without suitable driver or conductor;
nor shall leave the same on any such bridge
or road stationary, in such s situation as to
ObstrUct other persons travelling with any
carriage OF other vehicle"
Every person violating either Of the fore
going provisions Of the law Of the road.
shall be fued for each offense not less than
one, nor more than twenty-five dollars, and
any person Injured BY any violation Of the
provisions Aforesaid, shall be entitled to re-
cover damages in an action TO be commenced
within six months after the injury" [Com-
piled Penal Code, Ch. So, Sects. 9-l3; Civil
Code, Sects- STS-ST5.
1t will be remarked, that no person is for
hidden 10 travel upon the left side, or upon
any portion of the highway. ANY one may
drive in the middle, or upon either side of
the travelled road, provided he do not, in so
doing. unressonably obstruet persons who
sre upon the laEfil side The statute itself
recognizes this right, in providing that per
sons meeting "shalI seasOnably turn to the
right" and that any one prevented from so
doing, "shall stop a reasonable time" &c.
1t only requires the turning to the right,
when practicable"
In New Hampshire, it is iutimsted
in one case "that if q person volunta-
rily goes upon the prohibited side of the
way, his inability TO yield the way probably
would not furnish legal excuse, exoBera:ing
him from liability for au injury sustained by
one in passing, who was noEise at fault II
would be legal fault. a question of
law upon the facts proved, and not ques-
ton of fact for the jury" Brooks Vs. Hart,
Il y z. So7.l Bronson vs.. Moves, Wen
dell, Is6, sustains the same doctrine, and
both cases are cited without dissent by An
geIl, in the text Of his treatise on the law Of
highways, Sec S33.
But We are unable to accept, as sound
Law, the doctrine that where neither party is
in fault, otherwise than By one being upon
the wrong side Of the road, the only question
for the jury shall be, TO assess the damages
and fad for the plaintiff The law gives to
all the fuH reasonable use of the travelled
road, and We are OF the opinion that the
question of negligence in the conduct Of
traveller who finds himself upon the LEFT, and
unable TO turn seasonably, Is exclusively for
the jury
Our view of the law, is taken in Par
ker vs- Adams, 12 Net. as, where the Court
Dewey, J. held as follows: "It Is insisted
that the defendant, being on the wrong
side of the road, IN violation Of the provi-
sions Of the Statute, vas al all events liable
for all damage occasioned thereby, DotEith-
standing any negligence on the part of the