.. be
that without danger."
The rule of the road and the sailing rules adopted by Congress
from England are modern examples of such statutes. By the former
rule, the question has been narrowed from the vague one, Was the
party negligent? to the precise one, Was he on the right or left
of the road? To avoid a possible misconception, it may be
observed that, of course, this question does not necessarily and
under all circumstances decide that of liability; a plaintiff may
have been on the wrong side of the road, as he may have been
negligent, and yet the conduct of the defendant may have been
unjustifiable, and a ground of liability. /2/ So, no doubt, a
defendant could justify or excuse being on the wrong side, under
some circumstances. The difference between alleging that a
defendant was on the wrong side of the road, and that he was
negligent, is the difference between an allegation of facts
requiring to be excused by a counter allegation of further facts
to prevent their being a ground of liability, and an allegation
which involves a conclusion of law, and denies in advance the
existence of an [114] excuse. Whether the former allegation ought
not to be enough, and whether the establishment of the fact ought
not to shift the burden of proof, are questions which belong to
the theory of pleading and evidence, and could be answered either
way consistently with analogy.
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