162 N.W. 935 | S.D. | 1917
Plain-tiff, while riding on a -bicycle along a country road in McPherson county, wa© struck and severely injured by an automobile driven by defendant, and brings this action for the recovery of damages resulting from' said, injuries. Plaintiff had judgment, and defendant appeals.
There is no dispute as to the facts. The road on which the accident occurred is in a lane, 66 feet wide, and bounded on either side by a barbed wire fence. No part of the road had been worked in the sense of having been rounded up or ditched and graded. ' The roadway that was used by the public for travel at that particular place 'Consisted of but a 'single track that had been, ■worn by .wagons and other vehicles that had been .passing over it. At the place where the accident occurred, this track ran along
That respondent’s- injuries are serious and permanent is not disputed. But appellant contends that, a® the respondent was traveling on hi-s left-hand side of the center line of the 66-foot lane or right of way, he was guilty of negligence, and tliat, but for such negligence, the accident would- not have occurred. Section 1766 of the Pbl. Code attempts to define the rights and duties of travelers while using the public highways of this state. This section reads as follows:
“Whenever any persons shall meet each other on any bridge or -road, -traveling with carriages, 'wagons, sleds, sleighs -or other vehicle, each shall pass to the right of the middle of the traveled part of such bridge or road, so that the respective carriages or vehicles aforesaid -may -pass each other without interference.”
It is appellant’s contention that the phrase, “middle of the traveled part of the bridge or road,” as used in -said statute, means a line parallel to and halfway between the -boundary lines- of the 66-foot right of wiay. But upon- this subject the trial court instructed -the jury a-s follows :
“The traveled part of the road mentioned in the statute refers to that part which is commonly used by the public for public travel or has -been worked, prepared1, and made fit for public travel-. And I will say further, gentlemen, -that the statute refers not merely to -the track in which parties are traveling, but to the entire traveled portion of the -high way, provided that the track itself is not all there i-s in the traveled- portion of the highway.’’
. W-e believe this to be the correct interpretation of said1 statute. I-t is a matter of -common knowledge that, while the right of way for highways in this state is generally 66 feet wide, as a matter
Appellants cites and relies upon Fales v. Dearborn, I Pick. (Mass.) 345, in support of his contention that the phrase “traveled part of the road1” means the entire width of the right of wiay. The Massachusetts- statute is the same as -ours, but that case grew out of a -colisi-on between two- -carriages on one of the streets in the city -of Boston where the street throughout its entire width, is presumed to have been kept open and prepared for general travel; and what is said in that case -is not applicable to country roads in this state. The New York statute -requires people, in passing each -other, to turn to the right of the center of the road, and the New York -court holds this to- mean- th-e center of the worked part of the road. Earing v. Lansingh, 7 Wend. (N. Y.) 185. The evidence in this case shows that, at the place where the accident occurred, no -part of the road had ever been worked.
Tille judgment and order appealed from are affirmed.