PUBLIC USE OF HIGHWAYS.
After the roads are ready for use and beautified by shade trees and
green parks at convenient places, we are confronted with the
question, How are they to be used by the public and the owners of
adjoining estates? We, as a people, are not only continental and
terrestrial travellers, but we are continually passing hither and
thither over the public ways of this State, and consequently it is
important for us to know how to travel the common roads in a legal
and proper manner.
In the first place, every one who travels upon a public thoroughfare
is bound to drive with due care and discretion, and to have an
ordinarily gentle and well trained horse, with harness and vehicle
in good roadworthy condition, as he is liable for whatever damages
may be occasioned by any insufficiency in this respect.[32]
[32] 4 Gray, 178.
Another duty which every traveller is bound to observe is to drive
at a moderate rate of speed. To drive a carriage or other vehicle on
a public way at such a rate or in such a manner as to endanger the
safety of other travellers, or the inhabitants along the road, is an
indictable offence at common law, and amounts to a breach of the
peace; and in case any one is injured or damaged thereby, he may
look to the fast driver for his recompense. But it does not follow
that a man may not drive a well-bred and high-spirited horse at a
rapid gait, if he does not thereby violate any ordinance or by-law
of a town or city; for it has been held that it cannot be said, as
matter of law, that a man is negligent who drives a high-spirited
and lively-stepping horse at the rate of ten miles an hour in a dark
night.[33]
[33] 8 Allen, 522.
It then behooves every one to drive with care and caution, whether
he is going fast or slow; and it also behooves him to see that his
servants drive with equal care and caution, for he is responsible to
third persons for the negligence of his servants, in the scope of
their employment, to the same extent as if the act were his own,
although the servants disobey his express orders. If you send your
servant upon the road with a team, with instructions to drive
carefully and to avoid coming in contact with any carriage, but
instead of driving carefully he drives carelessly against a
carriage, you are liable for all damages resulting from the
collision; and if the servant acts wantonly or mischievously,
causing thereby additional bodily or mental injury, such wantonness
or mischief will enhance the damage against you.[34]
[34] 3 Cush. 300; 114 Mass. 518.
You may think this a hard law; but it is not so hard as it would be
if it allowed you to hire ignorant, wilful, and incompetent servants
to go upon the road and injure the lives and property of innocent
people without redress save against the servants, who perchance
might be financially irresponsible. It should however be stated in
this connection that if your team should get away from you or your
servant, without any fault on your or his part, and should run away
and do great damage, by colliding with other teams, or by running
over people on foot, you would not be held responsible, as in law it
would be regarded as an inevitable accident. Thus, if your horse
should get scared by some sudden noise or frightful object by the
wayside, or through his natural viciousness of which you were
ignorant, or by some means should get unhitched after you had left
him securely tied, and in consequence thereof should plunge the
shaft of your wagon into some other man's horse, or should knock
down and injure a dozen people, you would not be liable, because the
injury resulted from circumstances over which you had no control.[35]
[35] 1 Addison on Torts, 466.