upon the highway on the ground of inevitable accident, it must appear that the collision was unavoidable and without blame imputable to the defendant.1 Where two alternatives are presented to a traveller upon the highway as modes of escape from collision with an approaching traveller, either of which might be fairly chosen by an intelligent and prudent person, the law will not hold him guilty of negligence for taking either. And where a traveller selects one of two alternatives of escape from such collision, it is not a question of law, unless in extreme cases and where the facts are undisputed, which alternative he should select; but a question for the jury, whether, in making his selection, he acts with ordinary care.2 If it is not practicable, that is, if it is difficult or unsafe for one to pass the other on account of his vehicle being heavily loaded, or for any other cause, he should stop for a reasonable time at a convenient part of the road in order to enable the other person to pass without any request from him.3 A party, having before him the whole road free from obstructions, and having no notice of any carriage behind him in season to stop or change his course, is at liberty to travel on any part of the road that he pleases.4 One driving behind another in the same direction may pass either to the right or left without necessarily being chargeable away in a city, the law will presume negligence on the part of the owner. Hummel . Wester, Bright. (Pa.) 133. Where a horse not properly secured is frightened and runs away, the neglect of the owner to guard against such an accident renders him liable for the consequences, as well as the person causing the fright. McCahill v. Kipp, 2 E. D. Smith (N. Y.) 413. From the fact that horses got loose and ran away, negligence in fastening them may be reasonably inferred. Strup v. Edens, 22 Wis. 432. If a horse runs away without the fault of the driver he is not answerable, But he must show he was not in the fault. Kennedy v. Way, Bright. (Pa.) 186. Driving Sleigh Without Bells.-A man who drives a sleigh without the bells required by Massachusetts Rev. Stat., ch. 51, §§ 2, 3, is not liable for injuries caused by collision with his sleigh unless his neglect contributes to the accident. Kidder v. Dunstable, 11 Gray (Mass.) 342. Evidence. It is matter of evidence whether sufficient room is left or not, in case any accident happens. Wordsworth v. Willan, 5 Esp. 273. 12 C. of L.-61 961 1. Center v. Finney, 17 Barb. (N. Y.) 94. See Wrin v. Jones, III Mass. 360; Any part of the highway may be used by the traveller, provided he therein conforms to all laws and well settled rules connected with such use. Stinson v. Gardiner, 42 Me. 248. A traveller in a wagon may use the middle or either side of the road, at his pleasure, and is not bound to turn to either side to allow another going in the same direction to pass him, provided there is room enough. Bolton v. Colder, 1 Watts (Pa.) 360. Although a person driving a carriage is not bound to keep on the regular side of the road, yet if he does not, he must use more care, and keep a better lookout, to avoid concussion, than would be necessary if he was on the proper side of the road. Pluckwell 7. Wilson, 5 C. & P. 375. with negligence in case of collision.1 If damage occurs without fault on the part of the advance team, the party attempting to pass, and causing the damage, is liable for the consequences.2 If one, in making use of horses as a means of locomotion on the highway, is injured by the act or omission of another using a steam locomotive, the question is not one of superior privilege, but whether, under all the circumstances, there is negligence imputable to some one, and, if so, who should be accountable for it.3 One transporting unusual machinery over a highway should employ a sufficient number of men to warn travellers of their danger, and, if necessary, to assist them in passing it.4 It is no defence that the party had no design to offend; that he attempted to prevent a collision; that the road on his side was 1. Clifford v. Tyman, 61 N. H. 508. 2. Knowles v. Crampton, 55 Conn. 336; Simmonson v. Stallenmerf, 1 Edw. (N. Y.) Sel. Cas. 194. When a driver attempts to pass another on the public road, he does so at his peril. At least, he must be responsible for all damages which he causes to the one whom he attempts to pass, and whose right to the proper use of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as would bring disaster upon himself. Avegno v. Hart, 25 La. An. 235. Upon trial of an action for damages for collision on a highway, between defendant's wagon, which was in motion, and plaintiff's, which was standing somewhat crosswise, there was some evidence that the collision was caused by plaintiff's horse backing his wagon against defendant's. Held, that a verdict for defendant was warranted, and should not be set aside on motion for a new trial. Patten v. Paul, 7 Atl. Rep. 267. Plaintiff, driving with two other persons in the same seat of his buggy, with two horses, one wild and both hard mouthed, attempted, in a road sufficiently wide, to pass the defendant going in the same direction and driving a lumber wagon. Defendant whipped and urged his horses. Thereupon plaintiff's horses ran off, broke the buggy, and one horse broke his leg. Held, that these facts, it not appearing that defendant knew plaintiff's team or situation, did not justify an instruction that, if defendant knew that plaintiff was acting imprudently, and could have avoided the injury with reason able care, plaintiff should recover. Aznoe v. Conway (Iowa), 34 N. W. Rep 422. 3. A highway is a public way for the use of the public in general, for passage and traffic without distinction. Persons making use of horses as the means of travel or traffic by the highways have no rights therein superior to those who make use of them in other permissible modes; improved methods of locomotion are admissible, and cannot be excluded from existing public roads if not inconsistent with the present methods. Macomber v. Nichols, 34 Mich. 212. 4. In Bennett v. Lovell, 12 R. I. 166; 34 Am. Rep. 628, POTTER, J., said, "It cannot be doubted that the defendant had a right to transport his machinery over the highway. This right is undoubted, but it is to be so exercised as not to endanger the lives of or property of others who have equal rights upon the highway. The man who, claiming to be in the exercise of his own right to drive along the highway an object or animal, which from its appearance, noise or other offensiveness, is calculated to frighten horses, without taking precautions by having a sufficient number of persons in charge of it to warn others of the danger, and if need be to aid them in passing it, for women and children have a right to drive on the highway as well as men, or who leaves such an object on the highway without proper precautions, cannot be said to be using that due care he ought to use, and which the law and a proper regard for the lives of his fellow men and the common duty of humanity require of him.” rough and rutty, and that it was more difficult for him than for the other party to turn out; unless the obstacles to turning out are insuperable or extremely difficult, he is without excuse.I Though one may lawfully pass on the left side of the road or across it for the purpose of turning up to a house, store, or other object on that side of the road, yet in so doing he must not obstruct those who are lawfully passing along on the same side.2 Where a traveller is delayed by such occupancy of the prohibited side of the road, damage arising from the detention would probably furnish a valid and substantial ground or cause of action.3 Vehicles not moving or passing are not required to occupy any particular part of a turnpike road.a Where two parties, each without any better right than the other, strive to occupy the same place in the public highway, he is in the wrong who first uses force.5 III. Obstructions.—If a private or public right of way be unlawfully obstructed by the owner of the adjoining land, a person entitled to use the way may pass over the adjoining close so far as necessary to avoid the obstruction, taking care to do no unnecessary damage.6 IV. Rate of Speed.-Persons driving in the streets of a city are not limited to any particular rate of speed. They may drive slowly or rapidly, but they must use proper care and prudence so as not to cause injury to other persons lawfully upon the streets.7 V. Stopping by the Wayside.-Travellers may stop temporarily by the roadside for their own personal convenience or for the purpose of loading and unloading their carriages, but this right must be strictly subordinated to the primary use of highways as thoroughfares for travel.8 1. Earing v. Lansingh, 7 Wend. (N. Y.) 185. 2. Palmer v. Barker, 11 Me. 338. 3. Brooks v. Hart, 14 N. H. 307. 4. Johnson v. Small, 5 B. Mon. (Ky.) 25. 5. Goodwin v. Avery, 26 Conn. 585. 6. Kent v. Judkins, 53 Me. 160. Where a public way is impassable, and where the act is done as the only means of extricating a team from a mud hole or bog therein, the pulling down of a fence at the side of the way and passing over the adjoining land is a necessary and justifiable act. Hedgepeth 7. Robertson, 18 Tex. 858. 7. Crocker v. Knickerbocker Ice Co., 92 N. Y. 652. The fact that a plaintiff or defendant was violating a city ordinance as to fast driving is admissible to show negligence, but is not conclusive. Hall v. Ripley, 119 Mass. 135; Wright v. Malden R. Co., 4 Allen (Mass.) 283; Hanlon v. South Boston R. Co., 129 Mass. 310. In an action against the proprietor of a coach for running over the plaintiff in the street, held that it was not error to permit proof of a municipal ordinance regulating the rate of speed of vehicles, for it tended to relieve the plaintiff from the imputation of negligence. Williams v. O'Keefe, 24 How. (N. Y.) Pr. 16. 343; 8. Angell on Highways, Rex v. Russell, 6 East 427. See Moulton v. Aldrich, 28 Kan. 214. The plaintiff's horse and wagon were backed up to the sidewalk in front of their shop and extended half across the highway. The horse was fastened by a strap and weight. While the plaintiffs, who were the only persons in charge of VI. Foot Passengers. The public, as foot passengers, have the right to use the carriage way as well as the sidewalk. Children are not restricted in passing and repassing upon the streets and roads more than adults.2 Walking in the carriageway is not of itself prima facie evidence of want of ordinary care, nor from that fact alone will the law infer negligence.3 VII. Pleading. In a complaint against a traveller for not driv-. ing his carriage to the right of the travelled part of a road, it is. not necessary to set forth a particular description of the road.1 VIII. Canals. When boats meet on the canals, it is the duty of the master of each to turn out to the right so as to be wholly on the right side of the centre of the canal.5 LAWYER — (See 942.) (See also ATTORNEY AND CLIENT, vol. 1, p.. Definition. A popular term for a person whose business it is to know and practice law.6 It is any person who for fee or reward prosecutes or defends causes in the courts of record or other judicial tribunals of the the team were engaged in putting a barrel into the wagon the defendant's runaway horse ran into the plaintiffs' horse. Held, in an action to recover for the injury to the plaintiffs' horse that the judge rightly refused to rule, as matter of law, that the plaintiffs were not in the exercise of due care. Greenwood v. Callahan, 111 Mass. 298. The plaintiff's horse and wagon were standing upon the public highway. Defendant, while driving along the highway, struck the plaintiff's wagon. Held, that the plaintiff has the burden of proof to show that the collision took place without any negligence on his part. Parks v. O'Brien, 23 Conn. 339. 1. Coombs v. Purrington, 42 Me. 332. 2. Stinson v. Gardiner, 42 Me. 248. 3. Coombs v. Purrington, 42 Me. 332. 4. Com. v. Allen, 11 Met. (Mass.) 403. 5. 1 New York Rev. Stat. 248, § 154; Rathbun v. Payne, 19 Wend. (N. Y.) 399. A boat navigating the Erie canal struck another boat lying in the canal waiting her turn to pass the locks. The judge presiding at the trial charged the jury that the defendant was liable if he had been guilty of negligence, or intended to inflict the injury; but that if there was no negligence or design of injury, and if in attempting to pass, the defendant managed his boat in a prudent and skilful manner and the injury was sustained by means of the acts of the plaintiff himself, or by mere accident, the defendant was not liable, and the jury found for the defendant. A new trial was granted for the omission. of the judge to instruct the jury to enquire whether, under the circumstances of the case, the defendant was not bound to know that his boat could not pass without hazard, and if he was, whether he ought not to have proceeded with greater caution, Dygest v. Bradley, 8. Wend. (N. Y.) 470. In passing on the Erie and Champlain canals freight boats are bound to afford every facility for the passage of packet boats as well through the locks as elsewhere on the canal. And where a freight boat passing west on the Erie canal was waiting for the emptying of a lock when a packet boat overtook her, held that the packet boat should pass first. On request, the master of the freight boat refusing to consent to this, the master of the packet may use all. necessary means to obtain the preference due to him short of a breach of the peace; as by pulling back the freight boat and forcing his own forward, for which no action of trespass will lie, no necessary damage to the freight boat being done. If the freight boat be detained or injured through the obstinate resistance of the master to the exercise of the right of preference of the packet, this is the fault of the former, for which he cannot recover damages against the master of the latter. Farnsworth v. Groot, 6 Cow. (N. Y.) 698. 6. Anderson's L. Dict.. 605. United States, or any of the States, or whose business it is to give legal advice to any cause or matter whatsoever.1 LAY. See note 2. LAY CORPORATION (See also CHARITIES, vol. 3, p. 122; CORPORATIONS (Private), vol. 4, p. 184). A lay corporation is "a corporation composed of lay persons or for lay purposes."3 They are divided into two classes, eleemosynary and civil,4 and civil corporations are divided into public and private. LAY DAYS-(See also DEMURRAGE). I. Definition, 965. II. Commencement, 965. (a) In General, 965. (b) When Specified in Charter, 968. (c) Discharge in Two Places, 973. III. Computation, 973. I. DEFINITION.—Lay days, strictly speaking, are the number of days specified in a charter party that the charterer is permitted to detain the boat for the purpose of delivering the cargo to and receiving it from the boat without incurring any liability to pay the boat owners for such detention.6 II. COMMENCEMENT-(a) In General.-The lay days all belong to 1. Act of July 13th, 1866. See 9 U. S. Stat. at Large, 121. 2. A Lay, in Maritime Law. In the New England ship owning States, "when the owners of vessels agree with a mariner that he shall sail the vessel on 'a lay,' both parties understand that the mariner is to take command of her as master, to victual and man her and pay half the port charges; the owner to keep the vessel in repair, and the freight and earnings to be equally divided between them. Upon a contract of this kind, the vessel, during its continuance, is under the exclusive control of the master as respects her voyages and employment. He alone has the right to determine what voyages he will undertake what cargo he will carry-upon what terms-and to what ports he will sail in search of freight. His share of the earnings of the vessel are his wages, and he receives no other compensation for his services as master." TANEY, C. J., 19 How. (U. S.) 33. Laying Out a Highway.-When is the act of laying out complete? See Hitchcock v. Alderman of Springfield, 121 Mass. 382; Wolcott v. Pond, 19 Conn. 597. The laying out of a highway includes a survey of it. Small v. Eason, 11 Ired. L. (N. Car.) 94. its laying out. In re Application of Dept. of Public Parks, 86 N. Y. 437, affirming s. c., 24 Hun (N. Y.) 378. The words "laying out" and "opening" are constantly used as equivalent expressions in the road laws of Pennsylvania. In re Twenty-eighth St., 102 Pa. St. 146. An order widening a highway is a laying out of a highway. Fuller v. Mayor, 123 Mass. 289. Laying Out a Park. The phrase "laying out" has the same meaning in the Massachusetts statutes relating to parks as it has in those relating to highways. Foster v. Board of Park Commissioners, 133 Mass. 321. Laying Out a Sewer.-The act of laying out a sewer is complete when the court of common council has designated its locality, and its dimensions and mode of construction. Cone v. City of Hartford, 28 Conn. 363. 56. 3. Bouvier's Law Dict. vol. 2, p. 4. 2 Kent Com. 274; 1 Blackstone Com. 470. 5. 2 Kent Com. 274; 1 Black. Com. 470, 471; Dartmouth College v. Woodward, 4 Wheat (U. S.) 518-670. 6. 3 Kent Com. 202; 2 Step. Com. 141; Brooks v. Minturn, 1 Cal. 481; 10 M. & W. 331; 3 Esp. 121; Rowe v. The opening of a street is a part of Smith, 10 Bosw. (N. Y.) 268. |