The opinion of the Court was delivered by
Gibson, C. J.
Among the reasons assigned for anew trial, there is but one which deserves to be noticed ; and there is so little even in it, that were it not necessary to correct an. apparent misapprehension on the subject of it, and in a matter of very general concern, it would not be made a subject of remark. The movement of carriages passing on our turnpike roads in opposite directions, is regulated by *363special enactment; but there is no positive law to regulate the passing of those who are travelling in the same direction. The defendants gave evidence of its being a custom in the latter case, for the leading carriage to incline to the right, the other making the transit at the same time by the left; whence it was attempted to be shown, that the injury suffered by the plaintiff, had been occasioned by his own neglect of this custom, which was said to have acquired the consistence of a law, but which was very properly exploded by the court. Nothing should be more pertinaciously resisted, than these attempts to transfer the functions of the judge from the bench to the witness’s stand, by evidence of customs in derogation of the general law, that would involve the responsibilities of the parties in rules, whose existence, perhaps, they had no reason to suspect before they came to be applied to their rights. If the existence of a law be so obscure, as to be known to the constitutional expositors of it only through the evidence of witnesses, it is no extravagant assumption to take for granted, that the party to be affected was ignorant of it at the time when the knowledge of it would have been most material to him ; and to try a man’s actions by a rule with which he had not an opportunity to become. acquainted beforehand, is the very worst species of tyranny. The probability of actual ignorance in respect to this particular custom, is greater than in respect to almost any other that can be imagined, as the traveller might reasonably suppose the whole law of the road to be comprised in the statutory admonition that meets the eye at every gate and bridge. The use of parol proof has been, to say the least, sufficiently extended by suffering it to control the private written laws whichindividualsestablish between themselves for the regulation of their rights in particular transactions, without suffering it to control the general law of the land. The judge, therefore, did a valuable service to the stability of the law, by freeing the cause from a matter so entirely foreign to it. It remains, therefore, to be seen, whether the rule laid down by him is founded in the principles of justice and reason. It was not pretended that the mail coaches are entitled to precedence, or the enjoyment of. any particular privileges. They are indeed protected by an act of congress from being wilfully and wantonly obstructed or delayed ; but in every other respect they are on a footing with all other carriages; and it is right, perhaps, that it should be so. Experience proves, tha.t the drivers of them are not the most eligible depositories of power; and there are few who have not to do with them, either as passengers or travellers. The public, consequently, has an important interest in having them, in common with the drivers of other carriages, held strictly to] the measure of their rights ; and this can be done only by making their employers sureties for their good conduct as far as the law permits, and liable for their acts. They are seldom of sufficient estate to respond in damages to any considerable extent; and to treat them as exclusively liable, would in most instances be a denial of redress. With these consid*364erations in view, the judge stated the law to be, that a traveller may use the middle, or either side of the road at his pleasure, and without being bound to turn aside for another travelling in the same direction, provided there be convenient room to pass on the one hand, or on the other : and why should it be otherwise ? The law to regulate the deflection of those who are travelling in opposite directions, was designed for the specific case mentioned in it; the object being, to avoid, by a preconcerted movement, the collision which might otherwise ensue from the mutual misapprehension of intention, frequently observable between foot passengers. But this uncertainty is productive of no collision between carriages travelling in the same direction, and the principle of the enactment is, therefore, not to be extended to it. It is certainly but reasonable, that the traveller, to be accommodated, should be at the pains to give his carriage the proper direction to enable him to profit by his superior speed ; and if there be convenient room to pass on any particular part of the road, he ought not to complain. If there be not, it is doubtless the duty of the other to afford it, on request made, by yielding him an equal share of the road, if that be adequate and practicable; if not, the object must be deferred till the parties arrive at ground more favourable to its accomplishment. Should the leading traveller refuse to comply, he would be answerable for it. But to effect the passage by a forcible collision with him, is not to be justified, redress being demandable only by due course-of law. Conformably to this, it was impossible to doubt that the injury entitled the plaintiff to his action ; and as it clearly appeared to have been the effect of negligence, the verdict was properly rendered for such damages as will probably induce the proprietors of mail coaches to take care that their drivers, be more attentive to the rights of others for the future.
Judgment affirmed.