The question at issue in this case was whether the injury' to the plaintiff was caused solely by a defect in the highway, and in no part by his own negligence.
The mere fact that he was travelling on the wrong side of the road, in violation of the statute, did not as matter of law defeat this action, if his own fault or negligence did not contribute to the injury. But it was competent evidence of negligence on his part, to be submitted to the jury. Smith v. Gardner, 11 Gray, 418. Spofford v. Harlow, 3 Allen, 176. Jones v. Andover, 10 Allen, 18, 20. Steele v. Burkhardt, 104 Mass. 59, 61.
The instruction of the learned judge, that the statute was immaterial, and that the case was to be determined as if no such statute existed, was therefore erroneous, in withdrawing from the consideration of the jury an element which, if they had been permitted to consider it, might have had some weight in their determination of the question whether the plaintiff, in attempting to pass the other carriage on the wrong side of the road, used such care as was required of him under the circumstances in which he found himself. Exceptions sustained.