The opinion of the court was drawn up by
Shepley J.
This suit arises out of a collision of the wagons, in which the plaintiff’s daughter and the defendant [45]*45Were traveling on the highway. The Statute, c. 26, prescribes certain duties to be performed by those, who thus travel; and provides by the sixth section, that “ any person injured by any of the offences or neglects aforesaid shall also be entitled to recover his damages in an action on the case to be commenced within one year after such injury.”
The counsel for the defendant contend, that the design of the statute was not to make those offending against its provisions liable for any other than direct injuries to the person or property of another; and that the services of a child during infancy cannot be considered the property of the father. They rely upon the case of Reed v. Belfast, 20 Maine R. 246. It was a different statute, containing different language, which received a construction in that case. That statute authorized a person, who had received an “ injury in his person, or in his horse, team, or other property,” occasioned by a defect of a highway, to recover damages. The manner, in which he must receive the injury, was prescribed by the statute; and the word injury was considered as thereby limited to the class of injuries named. In the clause of the statute now under consideration the word injured, is not limited by any other words used in connexion with it. There is nothing in the other sections of
the statute, which can have that effect. It was the design of the statute to regulate the conduct of such persons, not to abridge any rights, which they might have by the common law. When the inquiry arises, what constitutes an injury, the common use of language and the common law must decide. There can be no other safe guide. Their decision would be, that the loss of the services of a child would be an injury to the father. The case of Williams v. Holland, 6 C. & P. 28, cited by the council for another purpose, exhibits a case of recovery of damages for an injury occasioned by a collision on a highway to the son of the plaintiff, as well as to his cart. In the case of Hall v. Hollander, 4 B. & C. 660, Abbott C. 1. said, “it is a principle of the common law, that a master may maintain an action for a loss of service sustained by the tortious act of another, whether the servant be a child or notalthough [46]*46the action in that case could not be maintained, because the! child was too young to- be able to perform any service.
The counsel also insist, that the complaints of suffering made' by the daughter after the injury, and her description of the place injured, were improperly admitted.
The rule, as stated in Greenl. Ev. § 102, is, that “ whenever' the bodily or mental feelings of an individual are material to? be proved, the usual expressions of such feelings, made at the time in question, are also original evidence.” By the time in question, is not intended the time of injury, but the time, when-it is material to prove a condition of bodily or mental suffering.And that may be material for weeks and perhaps months after' an injury has been inflicted. If other persons could not be permitted to testify to them, when the person injured might be a witness, there might often be a defect of proof. The person injured might be unable to- recollect or state them by reason of the agitation and suffering occasioned by it.
Several requests were made for instructions, which were re-fused. The two first, intended to define the duties of persons passing each other with carriages on the highway, appear to1 have been founded upon a misapprehension of the duties enjoined By the statute.
When persons meet and pass each other, the first section re-quires, that each shall drive his “ carriage or other vehicle to-the right of the middle of the traveled part of such road or' bridge, when practicable.” When it is not practicable, that is', when it is difficult or unsafe for him to do- so on account of his vehicle being heavily loaded, or for other cause, the second* section requires, that he' should stop a reasonable time at a convenient part of the road to' enable the other person to pass. And this he should do in obedience to the statute without any request. These rules can be easily comprehended and obeyed.Those, who disregard them, cannot justly complain, when they are held responsible for any injuries, which they may thereby' occasion. It appears from the testimony presented in this case, that the defendant violated them. He did not turn to-the right from the middle of the traveled part of the road. [47]*47His excuse was, that his wagon was heavily loaded, that the earth was frozen, and that the wheels were iñ ruts, so that it would have been difficult or unsafe for him to have done so. In such case the law required him to stop a reasonable time at a convenient part of the road for the other wagon to pass; and this he did not do. The two first requests were therefore properly refused.
The third and the fifth requests present the question, whether the driver of the other wagon was not bound to exercise ordinary care to avoid an injury, although the defendant was conducting improperly. In suits against towns for the recovery of damages for injuries occasioned by defects in highways, the law is settled, that the plaintiff must shew, that the injury was not occasioned by negligence or the want of ordinary care on his own part. The same rule prevails, when the suit is brought against an individual to recover damages for an injury occasioned by some obstruction or nuisance, which he has caused to be placed in the road. Flower v. Adams, 2 Taunt. 314 ; Marriott v. Stanley, 1 Man. & Gran. 568 ; Smith v. Smith, 2 Pick. 621; Marlow v. Mumislon, 6 Cow. 191. It prevails also in cases of collision of vessels and boats, when meeting and passing in a river or canal. Lack v. Seward, 4 C. & P. 706; Lux ford v. Large, 5 C. & P. 421 ; Sills v. Brown, 9 C. & P. 601 ; Raisin v. Mitchell, Id, 613 ; Vennall v. Garner, 1 Crom. & Mee, 21 ; Rathbun v. Payne, 19 Wend, 399, It would seem, that a somewhat modified rule might prevail in admiralty in eases of collision of vessels upon the high seas. When the injury was occasioned by a want of skill or ordinary care in the management of each vessel, Lord Stowell considered, that the loss should be apportioned between them, The Woodrup Sims, 2 Dodson’s R. 83,
The duties required of each party, in cases of injury by collision and otherwise on the highways, have often been discussed in the decided cases. In the case of Knapp v. Salsbury, 2 Campb. 500, there was a collision of a post chaise and a cart. Lord Ellenborough said, “ if what happened arose from inevitable accident, or from the negligence of the [48]*48plaintiff, to be sure the defendant is not liable.” In the case of Jones v. Boyce, 1 Stark. R. 493, the coupling rein broke, one of the leaders became ungovernable, the coachman drew the carriage to one side of the road, where it came in contact with piles, one of which it broke, and the wheel was stopped by a post. The carriage was not overturned. The plaintiff being alarmed jumped from the top of it, and his leg was broken.
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The opinion of the court was drawn up by
Shepley J.
This suit arises out of a collision of the wagons, in which the plaintiff’s daughter and the defendant [45]*45Were traveling on the highway. The Statute, c. 26, prescribes certain duties to be performed by those, who thus travel; and provides by the sixth section, that “ any person injured by any of the offences or neglects aforesaid shall also be entitled to recover his damages in an action on the case to be commenced within one year after such injury.”
The counsel for the defendant contend, that the design of the statute was not to make those offending against its provisions liable for any other than direct injuries to the person or property of another; and that the services of a child during infancy cannot be considered the property of the father. They rely upon the case of Reed v. Belfast, 20 Maine R. 246. It was a different statute, containing different language, which received a construction in that case. That statute authorized a person, who had received an “ injury in his person, or in his horse, team, or other property,” occasioned by a defect of a highway, to recover damages. The manner, in which he must receive the injury, was prescribed by the statute; and the word injury was considered as thereby limited to the class of injuries named. In the clause of the statute now under consideration the word injured, is not limited by any other words used in connexion with it. There is nothing in the other sections of
the statute, which can have that effect. It was the design of the statute to regulate the conduct of such persons, not to abridge any rights, which they might have by the common law. When the inquiry arises, what constitutes an injury, the common use of language and the common law must decide. There can be no other safe guide. Their decision would be, that the loss of the services of a child would be an injury to the father. The case of Williams v. Holland, 6 C. & P. 28, cited by the council for another purpose, exhibits a case of recovery of damages for an injury occasioned by a collision on a highway to the son of the plaintiff, as well as to his cart. In the case of Hall v. Hollander, 4 B. & C. 660, Abbott C. 1. said, “it is a principle of the common law, that a master may maintain an action for a loss of service sustained by the tortious act of another, whether the servant be a child or notalthough [46]*46the action in that case could not be maintained, because the! child was too young to- be able to perform any service.
The counsel also insist, that the complaints of suffering made' by the daughter after the injury, and her description of the place injured, were improperly admitted.
The rule, as stated in Greenl. Ev. § 102, is, that “ whenever' the bodily or mental feelings of an individual are material to? be proved, the usual expressions of such feelings, made at the time in question, are also original evidence.” By the time in question, is not intended the time of injury, but the time, when-it is material to prove a condition of bodily or mental suffering.And that may be material for weeks and perhaps months after' an injury has been inflicted. If other persons could not be permitted to testify to them, when the person injured might be a witness, there might often be a defect of proof. The person injured might be unable to- recollect or state them by reason of the agitation and suffering occasioned by it.
Several requests were made for instructions, which were re-fused. The two first, intended to define the duties of persons passing each other with carriages on the highway, appear to1 have been founded upon a misapprehension of the duties enjoined By the statute.
When persons meet and pass each other, the first section re-quires, that each shall drive his “ carriage or other vehicle to-the right of the middle of the traveled part of such road or' bridge, when practicable.” When it is not practicable, that is', when it is difficult or unsafe for him to do- so on account of his vehicle being heavily loaded, or for other cause, the second* section requires, that he' should stop a reasonable time at a convenient part of the road to' enable the other person to pass. And this he should do in obedience to the statute without any request. These rules can be easily comprehended and obeyed.Those, who disregard them, cannot justly complain, when they are held responsible for any injuries, which they may thereby' occasion. It appears from the testimony presented in this case, that the defendant violated them. He did not turn to-the right from the middle of the traveled part of the road. [47]*47His excuse was, that his wagon was heavily loaded, that the earth was frozen, and that the wheels were iñ ruts, so that it would have been difficult or unsafe for him to have done so. In such case the law required him to stop a reasonable time at a convenient part of the road for the other wagon to pass; and this he did not do. The two first requests were therefore properly refused.
The third and the fifth requests present the question, whether the driver of the other wagon was not bound to exercise ordinary care to avoid an injury, although the defendant was conducting improperly. In suits against towns for the recovery of damages for injuries occasioned by defects in highways, the law is settled, that the plaintiff must shew, that the injury was not occasioned by negligence or the want of ordinary care on his own part. The same rule prevails, when the suit is brought against an individual to recover damages for an injury occasioned by some obstruction or nuisance, which he has caused to be placed in the road. Flower v. Adams, 2 Taunt. 314 ; Marriott v. Stanley, 1 Man. & Gran. 568 ; Smith v. Smith, 2 Pick. 621; Marlow v. Mumislon, 6 Cow. 191. It prevails also in cases of collision of vessels and boats, when meeting and passing in a river or canal. Lack v. Seward, 4 C. & P. 706; Lux ford v. Large, 5 C. & P. 421 ; Sills v. Brown, 9 C. & P. 601 ; Raisin v. Mitchell, Id, 613 ; Vennall v. Garner, 1 Crom. & Mee, 21 ; Rathbun v. Payne, 19 Wend, 399, It would seem, that a somewhat modified rule might prevail in admiralty in eases of collision of vessels upon the high seas. When the injury was occasioned by a want of skill or ordinary care in the management of each vessel, Lord Stowell considered, that the loss should be apportioned between them, The Woodrup Sims, 2 Dodson’s R. 83,
The duties required of each party, in cases of injury by collision and otherwise on the highways, have often been discussed in the decided cases. In the case of Knapp v. Salsbury, 2 Campb. 500, there was a collision of a post chaise and a cart. Lord Ellenborough said, “ if what happened arose from inevitable accident, or from the negligence of the [48]*48plaintiff, to be sure the defendant is not liable.” In the case of Jones v. Boyce, 1 Stark. R. 493, the coupling rein broke, one of the leaders became ungovernable, the coachman drew the carriage to one side of the road, where it came in contact with piles, one of which it broke, and the wheel was stopped by a post. The carriage was not overturned. The plaintiff being alarmed jumped from the top of it, and his leg was broken. Lord Ellenborough instructed the jury, if they should be of opinion, that the reins were defective, the inquiry would be, “ did this circumstance create a necessity for what he did, and did he use proper caution and prudence in extricating himself from the apparently impending peril.” In the case of Chaplin v. Hawes, 3 C. & P. 554, the driver of a cart injured the plaintiff’s horse, rode by his servant, while the cart was passing a gate on the wrong side of the road. The plaintiff’s servant was rightfully on the same side of the road and about to meet and pass the cart. Best C. J. stated to the jury, “if the plaintiff’s servant had such clear space, that he might have easily got away, then, I think, he would have been so much to blame as to prevent the plaintiff’s recovering.” In the case of Pluckwell v. Wilson, 5 C. & P. 375, there was a collision of the chaise of the plaintiff and the carriage of the defendant. Mr. Justice Alderson left it to the jury to say, “whether the injury to the plaintiff’s chaise was occasioned by negligence on the part of the defendant’s servant without any negligence on the part of the plaintiff himself; for that if the plaintiff’s negligence in any way concurred in producing the injury, the defendant would be entitled to the verdict.” In the case of Williams v. Holland, 6 C. & P. 23, there was a collision of the plaintiff’s cart and the defendant’s chaise. Mr. Justice Bosanquet told the jury, “ if the injury was occasioned partly by the negligence of the defendant, and partly by the negligence of the plaintiff’s son, the verdict could not be for the plaintiff.” In the case of Bridge v. The Grand Junction Railway Company, 3 Mees. & Weis. 244, the injury was alleged to have been occasioned by the negligent management of a train of railway carriages; and Baron Parke said, “ there [49]*49may have been negligence in both parties, and yet the plaintiff may be entitled to recover. The rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester, 11 East, 60, and that rule is, that although there may have been negligence on the part of the plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendant’s negligence, he is entitled to recover. If by ordinary care he might have avoided them, he is the author of his own wrong. That is the only way in which the rule as to the exercise of ordinary care is applicable to questions of this kind.”
An examination of the cases leads to the conclusion, that the correct rule is, that if the party by the want of ordinary care contributed to produce the injury, he will not be entitled to recover. But if he did not exercise ordinary care, and yet did not by the want of it contribute to produce the injury, he will be entitled to recover. In the case of Lane v. Crombie, 12 Pick. 177, the Court held, that, the burden of proof was on the plaintiff to show, that the injury was not occasioned by her own negligence. In the case of Hartfield v. Roper, 21 Wend. 615, a child about two years old was in the beaten track of a highway and a sleigh and horses passed over it. It is stated in the opinion, that “ it is perfectly well settled, that if the party injured by a collision on the highway has drawn the mischief upon himself by his own neglect, he is not entitled to an action even though he be lawfully in the highway pursuing his travels.” In the case of Palmer v. Barker, 2 Fairf. 388, the opinion states, that when two persons are traveling in opposite directions, and are about to meet and pass each other, “ in so doing both are bound to use ordinary care and caution.”
The counsel for the plaintiff contend, that this doctrine should not be applied to a case, where one person is traveling on the side of the road by law assigned to him, and another is refusing to obey the law. There is, however, no good reason, why a person, who is traveling on the proper side of the road, should recover damages of one who is not, for an injury, [50]*50which his own want of ordinary care has contributed to produce. A person should not by his own negligence occasion even the misconduct of another to be productive of greater mischiefs, than it otherwise would have been, and then claim of him a compensation for the entire injury. And the common law does not attempt to apportion the loss in such cases. The wrongdoer is made responsible for his own misconduct, not for the consequences of another’s neglect to exercise ordinary care.
They also contend, that the requested instructions were not applicable to the testimony in the case ; that they did not state the law correctly ; and were therefore properly refused.
The third request may be liable to the objection, that it would not haye left the jury at liberty to decide, whether the alleged negligence .and want of ordinary care contributed to occasion the injury. The fifth requested instruction is not liable to such an objection, for if there had been no collision, there would have been no injury occasioned by the defendant,
It is true, that the testimony might not have authorized a jury to find, that the daughter of the plaintiff by her want of ordinary care contributed to produce the injury; but the defendant so contended, and he was entitled to have the jury pass upon it under instructions, which would have presented if paore fully and perfectly to their consideration,
The verdict is set aside
and a new trial granted,