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diff --git a/old/69664-0.txt b/old/69664-0.txt deleted file mode 100644 index 1857083..0000000 --- a/old/69664-0.txt +++ /dev/null @@ -1,8889 +0,0 @@ -The Project Gutenberg eBook of The law of the road, by R. (Robert) -Vashon Rogers - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: The law of the road - or wrongs and rights of a traveller - -Author: R. (Robert) Vashon Rogers - -Release Date: December 30, 2022 [eBook #69664] - -Language: English - -Produced by: The Online Distributed Proofreading Team at - https://www.pgdp.net (This file was produced from images - generously made available by The Internet Archive/American - Libraries.) - -*** START OF THE PROJECT GUTENBERG EBOOK THE LAW OF THE ROAD *** - - - - - - LEGAL RECREATIONS. - - VOL. IV. - - - THE LAW OF THE ROAD. - - - - - THE - - LAW OF THE ROAD; - - OR, - - WRONGS AND RIGHTS OF A TRAVELLER. - - BY - - R. VASHON ROGERS, JR. - - A BARRISTER AT LAW OF OSGOODE HALL. - - SAN FRANCISCO: - SUMNER WHITNEY AND COMPANY. - NEW YORK: HURD AND HOUGHTON. - Cambridge: The Riverside Press. - - - - - COPYRIGHT, 1876, - BY SUMNER WHITNEY & CO. - - - RIVERSIDE, CAMBRIDGE: - - STEREOTYPED AND PRINTED BY - - H. O. HOUGHTON AND COMPANY. - - - - - PREFACE - - TO THE - - CANADIAN EDITION. - - -This little work does not aspire to compete with the learned -productions of Redfield, Chitty, or Story, but merely to supply a want, -felt by many to exist in this age of perpetual motion, of a plain and -brief summary of the rights and liabilities of carriers and passengers -by land and by water. - -An attempt is made in the following pages to combine instruction with -entertainment, information with amusement, and to impart knowledge -while beguiling a few hours in a railway carriage, or on a steamboat. -Whilst it is hoped that the general public will peruse with interest -the text, containing elegant extracts from ponderous legal tomes--gems -from the rich mines of legal lore--and where in many cases the law -is laid down in the very words of learned judges of England, Canada, -and the United States; the notes--a cloud of authorities--the index -and the list of cases are inserted for the special delectation of the -professional reader. - -Though written in Ontario, the book will be found applicable to all -parts of the Dominion, as well as to the United States and England. - -The author, even if the style is deemed novel, does not seek the praise -of originality for the substance of the following chapters, as the -greater portion of the text, and well nigh all the notes, have been -taken from the works of others, to whom all due thanks are now rendered. - -How far the book is likely to be of use to the seeker after -knowledge, or of assistance to those desiring to kill time, is for -others to determine. If mistakes be discovered it is hoped that the -reader--professional or otherwise--will bear with them, “for if the -work be found of sufficient merit to require another edition, they -will probably be corrected, and if no such demand is made the book has -received as much labor as it deserves.” - -The author is very “’umble, coming of an ’umble family,” like the -celebrated Uriah--not the Hittite, but he of the Heap tribe--and he -will be quite content and satisfied if every reader, after having -perused this work, says of him as Lord Thurlow said of Mansfield: “A -surprising man; ninety-nine times out of a hundred he is right in his -opinions and decisions, and when once in a hundred times he is wrong, -ninety-nine men out of a hundred would not discover it.” - - - - - PREFACE - - TO THE - - AMERICAN EDITION. - - -In this present year of grace the British Lion is gently purring in -the centennial eyry of the American Eagle; thither also, the Canadian -Beaver, with a maple-leaf, the emblem of sweetness, in his mouth, has -wended its way: a striking contrast to the deeds of one hundred years -agone, when the followers of the quadrupeds were striving, teeth and -claw, to send the lovers of the biped to that bourne from which no -traveller returns. - -The time seems therefore opportune for a member of the Beaver family to -present to the worshippers of the mighty Eagle an edition of a little -book touching upon the wrongs and the rights of those of the republic, -and from distant lands, who travel upon the 74,000 miles traversed by -the iron horse, or the hundreds of thousands of leagues frequented by -nags of more mortal frame, on the American continent. - -The following is a Canadian book, revised, enlarged, abridged (the -watery element being omitted),[1] and rendered a more suitable place -to the palate of Uncle Sam by the admixture of many more of the wise -sayings of the men learned in the law of the United States. Originally -published anonymously, the author has been induced, by the kind notices -of his little book that have appeared, to acknowledge his bantling; and -he would seize this opportunity of rendering thanks to those critics -who, when writing of the first edition of his work, dipped their pens -into a solution of sugar and honey and not into an extract of wormwood, -vinegar and gall. - - R. V. R. JR. - - KINGSTON, ONTARIO, - _June, 1876_. - - - - - WRONGS AND RIGHTS OF A - TRAVELLER. - - - - - CHAPTER I. - - DRIVING. - - New Year’s Day.--Collision with Old Bolus.--Must I pay for - my Servant’s Deeds.--Deaf Man run over.--Effects of an - Avalanche.--Housemaid injured by Coachman.--Wives, Snakes or - Eels.--Icy Walks.--Falling Snow.--Board Walks.--Driver and - driven.--Right Side or Wrong.--Look out.--Walkers.--Sunday Driving and - Visiting.--Church-going.--Sunday Laws. - - -My life, so far as the readers of this sketch are concerned, may be -taken to have commenced on the New Year’s morning after I had married a -wife, and set up a trap with the necessary accompaniments of a horse or -two and a man. - -It was my intention, pursuant to the time-honored custom, to go out in -the afternoon with a friend to call upon my extensive circle of lady -acquaintances. At 10 A. M. Mrs. Lawyer came into my library frantic and -breathless; the palpitations of her heart having somewhat subsided, and -her heaving bosom sunk to rest, she exclaimed:-- - -“O Eldon, that horrid John must be drunk! He took out the horse and -sleigh this morning, and when driving down Main Street, he ran into Dr. -Bolus’s cutter and knocked it all to pieces.” - -“Ah, my dear Elizabeth, calm your troubled mind;” I coolly replied, -“John, without my knowledge, and wrongfully, took my horse and sleigh -for some purpose or other of his own, and ran into old Bolus’s -turn-out, you say: well, the law is perfectly clear that I am not -responsible for the injury, as I did not intrust my servant with the -sleigh.[2] I may tell you for your edification that the general rule is -that a master is not liable for the tortious act of his servant, unless -that act be done by an authority, either express or implied, given him -for that purpose by the master;[3] or as Mr. Baron Parke puts it, if a -servant is going on a frolic of his own, without being at all on his -master’s business, the master will not be liable.”[4] - -“Oh, but dear Don, I forgot to tell you that I sent him to the -confectioner’s for some cakes; but I told him to drive along West -Street.” - -“Confound it, that’s a different matter. The Doctor will rush off to -friend Erskine, and I will have to pony up for the damage; because, as -that rascal John was driving on his master’s business, it matters not -that he disobeyed his express orders in going out of his way, or made a -detour to please himself.”[5] - -“Yes, but Eldon dear,” continued my wife, “it was not on his master’s -business, it was on mine.” - -“Stupid, what difference does that make?” replied I, impatiently; and -then, seeing that my wife did not like the adjective, I added more -feelingly, but rather vaguely, “Don’t you see, I’m his master, you are -mine, and so must be his also.” - -“Heigh-ho!” sighed the wife of my bosom. “But I have not told you all. -After the collision the horse ran against an old man who was walking -along the street, knocked him down, and hurt him: but, of course, he -had no right to be on the road, when there was a good sidewalk for him.” - -“Of course he _had_ a right to be on the road, just as much right there -as the horse and sleigh had, even though he were sick and infirm; and -it was John’s business to take care where he was going!”[6] - -“Yet John says he told the man to get out of the way, and he wouldn’t -do it;” pleaded my wife. - -“That does not matter.[7] I hope no more damage was done?” I queried. - -“Yes; the horse shied and upset the sleigh; and John says that all -his--I mean John’s--ribs are broken, and that he is kilt entirely; and -he swears that he’ll make you pay for it--that he’ll sue you.” - -“Let him sue away and be hanged; he’ll get nothing for his pains but -the pleasure of spending his earnings; he is my servant and has to run -the risk of being hurt in my employment.”[8] - -“But then, Eliza Jane, the housemaid, was with him, was thrown out too, -and had all the skin taken off her face; and she says she’ll sue too.” - -“Oh, I’m sorry for that; I like her, and then she was so pretty.” - -“Eldon! how dare you say so--to your wife, too!” - -“I--I--only meant that I would have to pay for the damage to her, and -that if I did not do it willingly, any jury would be persuaded by her -pretty face to give a heavy sum against me for the injury done to her -by my servant.[9] Well, ’tis a pretty how-do-ye-do for a New Year’s -gift. I’ll go down and see the wretch.” - -Off I went, glad to get out of Elizabeth’s sight. She had grown a -little jealous because I had shown a few trifling civilities to pretty -Eliza Jane,--very trifling they were, I assure you; besides I wanted -to vent my rage on the man John. In a very short time some words -and phrases were used in the yard to which, doubtless, Moses would -have objected, if he had the first table of stone in his hand. My -ire, however, cooled down in time when I found that the man was “all -serene,” and that all the trouble had been caused by the horse having -taken fright at the fall of a lot of snow and ice off a house-top--a -circumstance over which, of course, I had not the slightest control; -and therefore I was not liable to Dr. Bolus, the old man, nor to pretty -Eliza Jane.[10] But to make matters all straight I gave my man a couple -of dollars, and meeting E. J. on the back-stairs as I went in I chucked -her under her dimpled chin, and told her that crying would make her -pretty eyes look red and swollen; and then retiring to my library -read up all the cases bearing on the subject, beginning with the old -case of Michael _v._ Alistree,[11] where the defendants “in Lincoln’s -Inn Fields, a place where people are always going to and fro about -their business, brought a coach with two ungovernable horses, _et ex -improvide, incaute et absque consideratione inaptitudinis loci_, there -drove them, etc., and the horses, because of their ferocity, being not -to be managed, ran into the plaintiff, and hurt and grievously wounded -him,” and the plaintiff got damages as well as damaged. - -At the appointed hour my friend and young brother-in-the-law, Tom -Jones, arrived. As he sank into one of the softest of our drawing-room -chairs, and gazed around, he exclaimed:-- - -“By Jove, Eldon, you look so snug and cosy here that I am half inclined -to follow suit, quit our bachelor’s hall, marry a nice little girl I -wot of, and settle down.” - -“Do so at once,” said my wife. - -“Ah! I cannot forget the words of that good old judge, Sir John Moore,” -he replied with a sigh. - -“Oh, you are as bad as Eldon, always quoting some fusty old judge. But -what did he say?” queried my wife. - -“He said that he would compare the multitude of women who are to be -chosen for wives unto a bag full of snakes, having among them a single -eel. Now, if a man should put his hand into this bag, he might chance -to light on the eel, but it is one hundred to one he would be stung by -a snake,” returned Jones. - -“The horrid old wretch. I am sure I was neither a snake nor an eel: was -I, Eldon? I hate both.” - -“Oh, no, my dear,” I replied. “But Tom, that surely is only an _obiter -dictum_, not a decision of that worthy judge.” - -“Of course,” replied Jones; “but all the dicta of judges are entitled -to weight.” Tom had just been called to the bar. - -“It is time that you two horrid creatures left here,” said Mrs. L. - -“Well, suppose we start. Mind dear, to tell the man to be sure to meet -us, two hours from now, at Mrs. Smith’s.” - -“Is your life insured against accidents, Mr. Jones?” asked my wife. -“You are sure to be run away with and upset.” - -“Only against railway accidents,” he said. - -“That’s stupid,” I remarked, “for it is well settled that hardly seven -per cent. of accidental claims arise from accidents in travelling by -rail or water, while those arising from horse or carriage injuries -exceed in number those from all other causes combined.” - -“A pleasant idea wherewith to start for an afternoon’s drive,” quoth -Tom. - -Off we went, followed by the best wishes of my loving and lovely -spouse. Scarce had our feet touched the sidewalk when, with the -exclamation, “Get out you rascallion!” Jones executed a _pas seul_, -and then lay sprawling on the ground; and the small boy--whose sled as -it slid swiftly down the board walk my friend had vainly endeavored to -avoid--glided merrily on. As I whisked the snow off, Jones in wrathful -accents consigned the juvenile to a place beyond the possible limits of -frost, and exclaimed:-- - -“I’ll sue the city for allowing the road to be in such a beastly state. -Corporations are bound to keep the street in a proper condition, so -that the lives and bones of passers-by will not be endangered.” - -“True,” I replied, “but the accident was not wholly caused by the -slipperiness of the pavement; the unlawful and careless act of the boy -in coasting had something to do with your overthrow; and in the exactly -similar case of Mrs. Shepherd it was decided that the city was not -liable.”[12] - -“I tell you all towns and cities must keep their highways and streets -in repair, so that they are without obstructions or structural defects -which may endanger the safety of travellers, and are sufficiently -level and smooth, and guarded by railings when necessary, to enable -people, by the exercise of ordinary care, to move about with safety and -convenience.”[13] - -“You repeated that sentence very well and with great emphasis. It is -quite correct in a general way that highways, streets and sidewalks -should at all times be safe and convenient, but then regard must be -had to the locality and intended uses.[14] Towns are liable only for -injuries caused by defects and obstructions for which they might be -indicted.[15] They do not insure the safety of all using sidewalks -in the depths of our northern winters;[16] and it has been expressly -decided that the mere existence of a little ice on the walk is no -evidence of actionable negligence:[17] the slipperiness of the ice, if -the walk is properly constructed and free from accumulations of snow, -will not give those who fall a right to sue a city with success.[18] -One must go gingerly and with due care on such occasions.”[19] - -“All very fine,” said Jones, “but when my friend Clapp, in walking -along the streets of the city of Providence, at night, fell on some ice -and broke his thigh, he recovered damages.” - -“Yes, I remember; but then there was a ridge of ice and snow, hard -trodden, in the centre of the sidewalk, which was considered such an -obstacle as the city should have removed.[20] And”-- - -Ere I had completed my sentence the hour of my doom had struck, and -I was as white as ever miller was; an avalanche of snow slid off a -roof and thundered down on my devoted head. Jones with a smirk asked -me if I was going to sue for damages. Sadly, as I twisted my head -slowly round and nodded first to right and then to left, to see if the -vertebræ were all in working order, I replied:-- - -“Ah, no! I cannot do so with success.[21] It’s a case of _damnum absque -injuria_.” - -“Ho! ho!” laughed my companion; “strong language; but no wonder.” - -“If the owner of the house had left the ice and snow there for an -unusual and unreasonable time after he knew of its presence and might -have removed it, he probably would have been liable to me,[22] or, if -that old awning had fallen on me,[23] or if that lamp hanging over the -Sol’s Arms’ door had lighted on my crown, producing an extra bump, -for the edification of Fowler and Wells and the savants of that ilk, -I might have got something in the first case out of the city; in the -other from the landlord.[24] Or if one of those barrels had rolled out -of that warehouse, and, thumping against your legs, had brought you -down, you might have sued the merchant.”[25] - -“Look at that poor old woman; she will come to grief most assuredly.” - -Before us toddled an aged granny, assisting her septuagenarian -extremities with an antique looking umbrella, of no color known to this -life. It was of a “flabby habit of waist, and seemed to be in need of -stays, looking as if it had served the old dame for long years as a -cupboard at home, as a carpet-bag abroad.” - -“So feeble a person should not be out in such slippery weather -unattended;[26] people should exercise common prudence. One who has -poor sight should take greater care in walking the streets than one in -full enjoyment of her faculties.”[27] - -“I fancy the least obstacle or hole would upset her,” said Tom. - -“And if she did stumble over a small impediment she could not sue the -city for damages. So the court held where a man fell over the hinge -of a trap-door projecting a couple of inches above the sidewalk in a -village.[28] But the degree of repair in which the walks must be kept -depends considerably upon the locality; one may reasonably expect -better pavements in a city than in a village; and so in Boston where an -iron box four inches square, set in a sidewalk by a gas company, had a -rim projecting an inch above the level, the city was held responsible -for injuries caused by it.”[29] - -“If she did meet with an accident and was held entitled to damage, what -would she get in hard cash?” asked Jones. - -“’Tis impossible to say. It would depend upon so many things. In one -case where an old man of seventy, who was very feeble, fell at night -into an opening for a drain in the sidewalk, which was covered with -boards laid at right angles with the others and projecting some two -inches, over which he stumbled, the jury gave $4,000 damages; but the -court held that excessive, as the old man was insolvent and incapable -of much labor.”[30] - -“That was a large sum for injuries.” - -“But the old fellow died. We go in here,” I added. - -“You may, I will not,” replied Jones, as he leant against the railing -of a bridge over a little stream. - -“Well, do not stand there; if the board gives way and lets you down, -you will have no remedy against the city; for it is not bound to keep -up railings strong enough for idlers to lounge against, or children -to play upon.[31] Look out, there is another sled!” As I rang the -door-bell I heard Jones mutter:-- - -“Those boys ought to be indicted for obstructing the sidewalk in such a -way.” - -“True for you,” I mentally ejaculated, “I remember that one of those -bewitched and besaddled wheelbarrow concerns, yclept velocipedes, was -held to be an indictable obstruction.”[32] - -In due time my servant met us with the sleigh, and off we went, bells -jingling, horse prancing, dog barking, all joyous with the exhilarating -influences of frost and sunshine. - -“Look here, old fellow,” said Tom, “your horse seems pretty skittish -to-day; let us settle the law as to our mutual liability for damages -before we run into anything. Who will have to pay? You don’t seem very -much accustomed to driving.” - -“Never mind that. The law is clear; as you are merely a passenger in -my sleigh, you are not responsible for any misconduct of which I may -be guilty while driving; you have nothing to do with the concern.[33] -Even if I had only borrowed the turn-out, and kindly let you take the -ribbons, I still would be the party responsible for negligence.”[34] - -“That’s satisfactory,” returned my friend. “But would it not be -different if we had both hired the horse and cutter?” - -“Quite correct, Mr. T. J.; your store of legal lore is rapidly -accumulating. In the case you put, both of us would be equally -answerable for any accident arising from the misconduct of either -whilst it was under our joint care,[35] and if we had hired the horses -to draw my sleigh, and had likewise obtained the services of a driver, -then we would not be liable for the negligence or carelessness of that -driver.”[36] - -“Look out! you had better keep on your own side of the road,” said -Jones. - -“Never mind, I can go on either side. I’ll only have to keep my eye a -little wider open to avoid collisions;[37] besides, there is plenty of -room for any person to pass, so he would have only himself to blame in -case of accidents.”[38] - -“A person approaching you might think there was not sufficient space.” - -“If an accident happens, it will be a matter of evidence whether I have -left ample room or not;[39] so you can look about you and see.” - -“But suppose some fiery steed was to run into yours?” urged Thomas, “or -you upset in the ditch?” - -“My being on the wrong side would not prevent my recovering against -a negligent driver, as long as there is room for him to pass without -inconvenience.[40] Nor would it interfere with my getting damages -from the city for injuries caused by their defective roads.[41] Whoa, -old fellow!” I cried, just as I was on the point of running over a -philosopher who was walking slowly over a crossing gazing up at -the azure vault of heaven. “What a stupid donkey; it is as much his -business to be watchful and cautious that he does not get under my -sleigh, as it is mine that my sleigh does not get over him![42] It is -gross carelessness for one to attempt to cross a street when he sees -a horse and vehicle coming rapidly along; and if that fellow had been -injured, he could have got nothing out of me.[43] A man who does not -use all his senses when crossing a highway is guilty of contributory -negligence, and so loses all right of action.”[44] - -“Yes,” said T. J. “Still a foot passenger has a clear right to cross -a road, and persons driving must avoid running him down; it will -be no valid excuse that one could not pull up his nag for fear of -the reins breaking, for he should have good harness.[45] But we may -pass a pedestrian promenading on the road on whichever side is most -convenient, for the rules of the road do not apply to walkers;[46] they -have no prior right of way.”[47] - -“No; men walking and driving have equal rights on the streets; all must -exercise care and prudence;[48] and a pedestrian should not indulge -in nice calculations of chances, and run the gauntlet of carriages in -crossing a road.”[49] - -“I was out driving last Sunday”--Jones began. - -“Oh, you naughty man!” I cried. “Have you no respect for the Sabbath -day? or perhaps you wanted to have a ride without giving a _quid pro -quo_?” - -“How could I do that?” queried my friend. - -“Don’t you know,” replied I, “that a man cannot recover for the hire of -a horse and buggy, let on Sunday for a pleasure drive?[50] But if the -livery man imagined that the errand on which you were bound was one of -necessity or charity, he would not be punishable for a breach of the -Sunday laws.”[51] - -“Well, but my drive was a work of charity (according to its original -meaning), if not of necessity. I was going to see Miss Blank.” - -“That very point was raised sometime since in Massachusetts, where -travelling on the Lord’s Day is forbidden. A young man, who had to work -all the week, was going to visit his betrothed on Sunday, when he came -to grief through a defect in the highway. The question whether this -might not have been a work of necessity or charity, was raised, but -unfortunately, the matter was not decided.[52] In one case, however, -it was held that a man might lawfully hire a horse and carriage to go -and visit his paternal progenitor, who resided in the country.[53] In -some of the States, where the laws for the observance of the Sabbath -are rigorous, and travelling on that day is forbidden, young swells -hire horses and race them, knowing that they will not have to pay for -any injuries done to the old nags;[54] not even if they die from the -Jehu-like driving.[55] But, come, let us hear more about Miss Blank, -Joney, my boy.” - -“I presume,” said Jones, “that one hurt while travelling would have to -show that the journey was from necessity or charity? Would one have to -stay in the house all day?” - -“Oh, no; even in Puritanic Boston it has been decided that walking half -a mile or so in the streets on a Sunday evening, without any intention -of going anywhere save home again, is not travelling within the meaning -of the act.[56] And of course one may go to church or to his place of -worship, no matter what may be the style of the ceremony. Once Mrs. -Feital, a Spiritualist, went to a camp-meeting where Miss Ellis was put -in a box with her hands tied: music was heard coming from the box, and -when it was open Miss Ellis was found with her hands untied, and a ring -that had been on her finger was then on the end of her nose. On her -way home from these amusing, if not instructive services, Mrs. Feital -broke her leg on the cars. The railway company tried to prove that this -was not divine service, but the jury gave a verdict of $5,000 damages, -and the court refused to interfere.[57] On the other hand, a poor -sinner who was injured on a horse car while going to visit a friend, -was held to have violated the sanctity of the Sabbath and broken the -law of the land, and so was precluded from recovering damages.”[58] - -“But is not the rule in Massachusetts exceptional?” queried my -companion. - -“In Vermont and Maine, as well as in Massachusetts, it has been held -that if one is driving or travelling on Sunday, without excuse, he -cannot maintain an action against the municipality for any damage he -may suffer through defects in the highway, on the ground that the town -is not legally liable to furnish a man with a safe highway at a time -when he is by law forbidden to travel on it.[59] Some of the decisions -in these States depend upon the peculiar legislation and custom of -the State, more than on any principle of justice or law;[60] and they -cannot be sustained consistently with the broad principles of the law -of negligence laid down by the courts generally.[61] The fact that one -was doing an unlawful act when injured will not prevent a recovery, -unless the act was such as would naturally tend to produce the -injury.[62] If one breaks the law, the law itself, and not a carrier -or town, should inflict the penalty. In other States,--New Hampshire, -New York, Pennsylvania, Wisconsin, for example, one can sue for -damages though injured while travelling on Sunday.[63] And in England -Sunday travellers are especially favored by the legislature, for to -none others can the publican dispose of beer, wine or spirits on that -day.[64] But come, what about Miss Blank?” - -“By the way,” said Jones, “have you seen that anecdote told by Erskine -about Lord Kenyon, and which has recently been brought to light?” - -“No. Has it anything to do with driving?” - -“Everything. Kenyon was trying a case at the Guildhall and seemed -disposed to leave it to the jury to say whether the plaintiff might -not have saved himself from being run into by the defendant by -going on to the wrong side of the road, where--according to the -witnesses--was ample room; so Lord Erskine in addressing the jury -said: ‘Gentlemen,--If the noble and learned judge, in giving you -hereafter his advice, shall depart from the only principle of safety -(unless where collisions are selfish and malicious), and you shall act -upon it, I can only say that I shall feel the same confidence in his -lordship’s general learning and justice, and shall continue to delight, -as I always do, in attending his administration of justice: _but I pray -God that I may never meet him on the road!_’ Lord Kenyon laughed, and -so did the jury, and in summing up the judge told them that he believed -it to be the best course _stare super antiquas vias_.” - -“Not so bad!” - -On and on we drove; the very air seemed alive With the tintinnabulation -that so musically wells from the jingling and the tinkling of the bells -in the icy air of winter. - - -FOOTNOTES: - -[1] Also the List of Cases. - -[2] M’Manus _v._ Crickett, 1 East, 106; Croft _v._ Alison, 4 B. & Ald. -590; Sleath _v._ Wilson, 9 C. & P. 607, qualified by Seymour _v._ -Greenwood, 6 H. & N. 359, 7 H. & N. 355; Lamb _v._ Palk, 9 C. & P. 631; -Sheridan _v._ Charlick, 4 Daly, 338. - -[3] Roe _v._ Birkenhead, etc., Rw. Co., 7 Ex. 36. - -[4] Joel _v._ Morison, 6 C. & P. 501. - -[5] Limpus _v._ London Omn. Co., 1 H. & C. 526; Joel _v._ Morison, 6 -C. & P. 501; Mitchell _v._ Crassweller, 13 C. B. 237; Seymour _v._ -Greenwood, 7 H. & N. 356. - -[6] Boss _v._ Litton, 5 C. & P. 407; Brooks _v._ Schwerin, 54 N. Y. 343. - -[7] Woolley _v._ Scovell, 3 M. & Ry. 105. - -[8] Paterson _v._ Wallace, 1 Macq. 751; Meara’s Admr. _v._ Holbrook, 20 -Ohio St. 137; C. & A. R. R. Co. _v._ Murphy, 53 Ill. 339. - -[9] Lord Cranworth, Bartonshill Coal Co. _v._ Reid, 3 Macq. 294-307. - -[10] Wakeman _v._ Robinson, 1 Bing. 213; Hammack _v._ White, 11 C. -B. (N. S.) 588; Gibbons _v._ Pepper, 1 Ld. Raym. 38; Jackson _v._ -Bellevieu, 30 Wis. 257; Livingston _v._ Adams, 8 Cow. 175; Ficken _v._ -Jones, 28 Cal. 618. - -[11] 2 Lev. 172; 1 Ventr. 295. - -[12] Shepherd _et ux._ _v._ Chelsea, 4 Allen, 113; Hutchinson _v._ -Concord, 41 Vt. 271; Ray _v._ Manchester, 46 N. H. 59. - -[13] Hixon _v._ Lowell, 13 Gray, 59; Barber _v._ Roxbury, 11 Allen, -320; Hewison _v._ New Haven, 34 Conn. 142. - -[14] City of Providence _v._ Clapp, 17 How. 168. - -[15] Merrill _v._ Hampden, 26 Me. 234. - -[16] Ringland _v._ Toronto, 23 C. P. Ont. 93. - -[17] Ibid. - -[18] Stanton _v._ Springfield, 12 Allen, 566; Hutchins _v._ Boston, Ib. -571 n. - -[19] Wilson _v._ Charlestown, 8 Allen, 137. - -[20] City of Providence _v._ Clapp, 17 How. 168; Church _v._ -Cherryfield, 33 Me. 460. - -[21] Hixon _v._ Lowell, 13 Gray, 59. - -[22] Shipley _v._ Fifty Associates, 101 Mass. 251; _S. C._ 106 Mass. -194. - -[23] Drake _v._ Lowell, 13 Met. 292. - -[24] Tarry _v._ Ashton, L. R., 1 Q. B. D. 314. - -[25] Byrne _v._ Boadle, 2 H. & C. 722; Randleson _v._ Murray, 8 Ad. & -E. 109. - -[26] Davenport _v._ Ruckman, 37 N. Y. 568. - -[27] Winn _v._ Lowell, 1 Allen, 180. - -[28] Ray _v._ Petrolia, 24 C. P. Ont. 73. - -[29] Loan _v._ Boston, 106 Mass. 450; Bacon _v._ Boston, 3 Cush. 174. - -[30] Hutton _v._ Windsor, 34 Q. B. Ont. 487. - -[31] Stickney _v._ Salem, 3 Allen, 374; Gregory _v._ Adams, 14 Gray, -242. - -[32] Reg. _v._ Plummer, 30 Q. B. Ont. 41. - -[33] Davey _v._ Chamberlain, 4 Esp. 229. - -[34] Wheatley _v._ Patrick, 2 M. & W. 650. - -[35] Davey _v._ Chamberlain, 4 Esp. 229. - -[36] Laugher _v._ Pointer, 5 B. & C. 547; Quarman _v._ Burnett, 6 M. & -W. 499. - -[37] Pluckwell _v._ Wilson, 5 C. & P. 375. - -[38] Chaplin _v._ Hawes, 3 C. & P. 554. - -[39] Wordsworth _v._ Willan, 5 Esp. 273. - -[40] Clay _v._ Wood, 5 Esp. 44. - -[41] Baker _v._ Portland, 10 Am. Law Reg. (N. S.), 559, 58 Me. 199; -Gale _v._ Lisbon, 52 N. H. 174. - -[42] Williams _v._ Richards, 3 C. & K. 81. - -[43] Woolf _v._ Beard, 8 Car. & P. 373. - -[44] Gray _v._ Second Avenue R. R. Co., 34 N. Y. Sup. Ct. (2 Jones & -Spencer), 519. - -[45] Cotterill _v._ Starkey, 8 C. & P. 691. - -[46] Cotterill _v._ Starkey, _supra_; Lloyd _v._ Ogleby, 5 C. B. (N. -S.), 667. - -[47] Belton _v._ Baxter, 14 Abb. (N. Y.) Pr. (N. S.) 404. - -[48] Brooks _v._ Schwerin, 54 N. Y. 343. - -[49] Belton _v._ Baxter, _supra_. - -[50] Berrill _v._ Smith, 2 Miles, 402. - -[51] Myers _v._ The State, 1 Conn. 502. - -[52] Buffinton _v._ Swansey, 2 Am. Law Rev. 235. - -[53] Logan _v._ Mathews, 6 Penn. St. 417. - -[54] Gregg _v._ Wyman, 4 Cush. 322; but see Hall _v._ Corcoran, 107 -Mass. 251. - -[55] Morton _v._ Gloster, 46 Me. 520. - -[56] Hamilton _v._ Boston, 14 Allen, 475. - -[57] Feital _v._ Middlesex R. R. Co., 109 Mass. 398. - -[58] Stanton _v._ Metropolitan Rw., 2 Am. Law Rev. 234. - -[59] Johnson _v._ Warburgh, 14 Am. Law Reg. 547; Jones _v._ Andover, 10 -Allen, 18; Bosworth _v._ Swansey, 10 Met. 363; Hinckley _v._ Penobscot, -42 Me. 89; Bryant _v._ Biddeford, 59 Me. 193. - -[60] Per Grier, J. Phil., etc., R. R. Co. _v._ Phil., etc., Towboat -Co., 23 How. 209. - -[61] Wharton on Negligence, § 405. - -[62] Wharton on Negligence, § 331, and cases cited. - -[63] Sutton _v._ Wauwatosa, 29 Wis. 21; Dutton _v._ Weare, 17 N. H. 34; -Mohney _v._ Cook, 26 Pa. St. 342; Etchberry _v._ Levielle, 2 Hilton (N. -Y.), 40. - -[64] Byles, J. Taylor _v._ Humphreys, 10 C. B. (N. S.), 429. - - - - - CHAPTER II. - - A SLEIGH DRIVE. - - Fast Driving.--Teams passing.--Clearing Snow.--Impassable - Roads.--Stuck in a Snow-drift.--Upset.--Demolishing Juveniles.--Mind - your Children.--In the Ditch.--Damages for Bad Roads.--Unsafe - Bridges.--Horses shying.--Whisking Tails.--Runaways. - - - All the morning - - “Out of the bosom of the air, - Out of the cloud-folds of her garments shaken, - Over the woodlands brown and bare, - Over the harvest fields forsaken, - Silent, and soft, and slow, - Descended the snow,” - -But when the sun turned downwards towards his couch, he shone out clear -and bright, making every snow-flake glisten and sparkle in the bracing -air; so Mrs. L. determined to utilize the splendid weather, and pay a -round of country visits. Of course I had to drive her. - -The steeds needed no whip to urge them on. Swiftly we glided down the -street, and over the bridge we trotted fast without drawing rein. The -boards creaked and cracked, as when one strives to creep upstairs, -unheard, at midnight. My wife said in surprise:-- - -“Eldon, did you not observe the notice threatening prosecution -according to the utmost rigor of the law to all crossing the bridge -quicker than at a walk? Why do lawyers break the law?” - -“All right, my dear; if the bridge had broken down while we were -trotting over it, I could not have sued the owners for damages.[65] But -as we are over it, we need not discuss the subject.” - -“But,” urged my wife, “it is not right to drive so fast.” - -“No; I know it. In fact it is an indictable offense to drive through -crowded streets like these so as to endanger the safety of others.”[66] - -“How fast may one go?” - -“That is difficult to say. Depends on circumstances. A mile in four -minutes is too fast,[67] and if you go a mile in three minutes and ten -seconds you become liable for all consequences.[68] Even where a man -was driving at only a smartish pace and ran over a donkey he had to pay -for it.[69] But one may drive rapidly on an open country road where the -chance of collision is slight.” - -“Look out, Eldon!” cried my gentle spouse. “See, a load of wood has -just upset there! What a nuisance!” - -“Not legally so, as the man went over accidentally.”[70] - -As we drove past we heard the woodman complaining bitterly that a -sleigh that had just met him had not turned out enough, and hence his -mishap. - -“Too bad,” I said; “people ought to show an accommodating spirit and -cautious watchfulness in avoiding difficulties when the roads are so -badly blocked with snow.”[71] - -“But,” said my wife, who seemed to have an idea in her head,--there -was an abundance of room for it,--of qualifying herself to carry on my -business if some unforeseen event should chance to carry me off before -I had realized some little independence. “But, I thought the towns, or -corporations, were bound to keep their roads safe and convenient. I am -sure that this one is neither safe nor convenient when we have to pass -any one.” - -“Your supposition is correct. The rule applies as well to a turnpike -company as to a town,[72] and to defects and obstructions caused by -drifts of snow.[73] Accumulations of snow and ice must be removed so -that streets and highways may be passable.[74] Of course it is plain, -as a Canadian judge once remarked, that the owner of a road cannot be -expected to clear the snow off the ground whenever it falls, or even -to remove the ice which may form there. It would frequently be an -impossible work to attempt it, and it would often be mischievous and a -nuisance to effect it. Snow forms the best and most suitable means of -travel in winter, and even when it falls to a great and unusual depth, -it is not the duty of any one, as a rule, to remove it from the road. -Nor can any one be required to remove mud and mire from a road. There -are, however, cases when snow, ice, and mud may and must be removed, -and that is when they cause an obstruction or danger which can properly -and reasonably be removed.[75] - -“If the corporation neglects its duty, what must an unfortunate -traveller do?” - -“If the highway is impassable for any reason, he certainly should not -try to force a passage, for he would not be able to recover for his -loss of time, or his trouble and expense in extricating his team from -a snow-drift.[76] But he may go upon the adjoining land,[77] as we are -going to do now.” - -“That is rather hard upon the poor farmers,” said my wife. “Why, we may -be driving over a field of fall wheat!” - -“That makes no difference; one ought, however, to keep as near the road -as possible.”[78] - -“It takes much longer going by this circuitous route,” said Mrs. -Lawyer, with a woman’s impatience. - -“Still, unfortunately, we cannot get compensation from the town -for the delay, even though we had to neglect important business in -consequence.[79] But if, in addition to being made to neglect business, -one, after commencing his journey, is obliged to turn back and go by a -very roundabout way, there is some authority to show that he may get -damages.”[80] - -For some minutes we had been winding in and out among lofty pines and -evergreens with boughs weighed down by the snow upon them, which was -now succumbing to the warm rays of the sun. Something caused my horses -to shy suddenly, and over we went, cutter, wife, buffaloes, self, and -all. Fortunately our steeds did not run off. At first, when I saw my -spouse lying extended on the ground, I was alarmed, but she quickly -reassured me by exclaiming:-- - - “Pleasant it is, when woods are green, - And winds are soft and low, - To lie amid some sylvan scene, - Where, the long drooping boughs between, - Shadows dark and sunlight sheen, - Alternate come and go. - - “Beneath some patriarchal tree - I lie upon the ‘snaw,’ - His hoary arm uplifted he, - And all the white leaves over me - Dripping their little drops in glee, - In one continuous thaw.” - -“Come, come, get up,” I said. “Don’t lie there playing the -improvisatore and taking your death of cold, for I fear me I could not -recover damages, although we had to come in here because the road was -impassable, as I knew it was so before I set out, and therefore ought -to have gone some other way and not have come into this bush at my -peril.”[81] - -Soon all was again as it had been, and merrily onward we went, now and -then calling at a house for a few minutes, and then on and on and on. -The day was too gloriously bright to spend much time with our friends -talking scandal. We came upon some children engaged in the exhilarating -amusement of sliding down hill, and one of them we nearly annihilated. -The horses’ feet were well nigh upon him before we noticed his little -red brick-top standing out in bold relief against the pure white snow. - -“Ha!” I said, with a sigh of relief, “’tis well we did not knock the -youngster into a cocked hat. It might have taken a good slice off my -year’s profits if I had. I remember a man who was driving a loaded -team down a hill at no snail’s pace, when he came upon a little rascal -(not four years old) on his way to school, and who--to relieve the -monotony of the journey--was sliding down the hill (near the edge of -the road) lying upon his potatoe pouch on his hand-sleigh, his face -turned towards the right, his legs Y-like stretching out behind in the -opposite direction. At a distance the man had taken the boy for a dog, -then as he came nearer he thought the child would get out of the way, -and when at length he did himself try to turn out,--although there was -plenty of room,--still the hind runners injured the boy’s left leg so -much that amputation was necessary. The man had to pay heavy damages -for the injuries he had inflicted.”[82] - -“It seems hard that one should have to pay for a parent’s negligence in -allowing such infants to wander about by themselves,” said Mrs. L. - -“Occasionally the tables are turned. Mr. Roper was once driving in -his sleigh at a gentle trot (there were some of his family with him -and strange to say they were not talking), when at the foot of a hill -they ran over a baby two years old that was sitting in the snow in the -middle of the road all by himself. The jury gave the child a verdict of -$500, but the court would not hear of such a thing, considering that -the parents had been guilty of criminal negligence in suffering the -child to be in such a place.”[83] - -“I guess that court was composed of old bachelors,” exclaimed my wife -in indignant accents. - -“Well, my dear, even married judges, and those who have been blessed -with quivers full of those sharp things, children, have declared the -rule to be that, if the plaintiff’s negligence in any way concurred -in causing the damage, he cannot recover unless he could not, by the -exercise of ordinary care, have avoided the injury, or the defendant -has been guilty of gross negligence, or intentionally did the -wrong.”[84] - -A little feminine chit-chat now occupied our attention; criticism -concerning the friends we had been visiting, their foibles and -weaknesses; speculations as to the incomes of the husbands, the age of -the wives, and such like remarks which absorb such a large proportion -of the atmospheric air that is converted into language. - -In passing a man, he would not turn out, and I grazed his horses’ legs, -causing the animals to plunge and kick so as to knock the cutter about -considerably; but seeing that the fellow was drunk and not able to -drive properly, I was not at all alarmed about any damage I might have -done, for I knew that I could not be held responsible.[85] - -The sun had gone to rest; the stars were coming out one by one, dotting -the vault of heaven as with sparkling gems. We heard in the distance -the ringing laughter and the tinkling bells of a merry driving party. -My wife exclaimed:-- - - “Hear the sledges with the bells, - Silver bells! - What a world of merriment their melody foretells! - How they tinkle, tinkle, tinkle, - In the icy air of night! - While the stars that oversprinkle - All the heavens, seem to twinkle - With a crystalline delight: - Keeping time, time, time, - In a sort of Runic rhyme, - To the tintinnabulation that so musically wells - From the bells, bells, bells, bells, - Bells, bells, bells-- - From the jingling and the tinkling of the bells.” - -We were at this time driving down in a ditch for the sake of the snow -(the road itself being well-nigh bare), and just as my wife concluded -her poetic quotation over we turned. Luckily fortune again favored us, -for my deviating from the right path without sufficient cause would -have prevented my recovering for any damage we might have suffered.[86] -One voluntarily encountering perils in the dark does so at his own -risk.[87] - -My wife impatiently suggested that she had better take the reins. I -told her that she could reign at home, but that if she was driving and -we really met with an accident, twelve jurymen would have to inquire -into her capacity and the horses’ character,[88] in considering whether -ordinary care had been exercised, and the less said on the first -subject the better. - -“For goodness’ sake, then, tell me what I can get if I am hurt on these -abominable roads,” she pettishly asked. - -“Well,” I said, clearing my throat for a speech, “if the town is -to blame for the state of the road, it is liable for the direct and -immediate losses occasioned by the accident.[89] In some cases _I_ -could recover for the loss of your services and the expenses of your -sickness;[90] although in Maine and Connecticut it has been decided -otherwise.[91] If I myself were injured, I could get recouped for my -loss of time and medical expenses.[92] Where the exertions of the -plaintiff in endeavoring to rescue his horses, which had broken through -a bridge, his exposure to the elements and his agitation--all the -direct result of the defect in the bridge--produced epilepsy and made -the man a wreck in body and mind (the doctors said the disease usually -terminated in paralysis and mental imbecility), the jury gave the man -$500 in compensation, and the judges thought it was none too much.”[93] - -“I should think not. It must be a poor body and mind to be worth no -more than that.” - -“Where,” I continued, “Mrs. Toms and her eight-year old boy were -crossing a bridge in their buggy, the horse shied at some new planks on -the bridge, backed to the edge and the hind wheels over a bank, Mrs. -Toms tumbled out into the water some fourteen feet below, the jury -considered that she had been driving in a proper manner and that the -road ought to have had guards along the embankment. The court agreed -with them, and held the township liable to make good her wounds and -bruises; the want of railings was deemed the proximate cause of the -injury, and not the horse becoming frightened or unmanageable.[94] A -road which passes over a bank or bridge, or along a precipice, should -always be properly guarded.[95] It seems that in the States of Vermont -and Massachusetts corporations will be held liable for injuries -(caused by defective ways) which are primarily imputable to pure -accident (that is to an unexpected occurrence or event for which no -one is responsible), if the accident happened without the fault of the -injured one, and is such that common prudence could not have foreseen -or guarded against, and if without the defect it would not have -occurred.[96] Where, for instance, a runaway was crowded against the -plaintiff’s nag, owing to an obstruction in the road, the town was held -liable; for streets should be so made as to be reasonably safe when -such accidents, as may reasonably be expected occasionally to happen -in the best regulated places, do occur.[97] And so when a carriage ran -away with the people in it by itself and over an embankment.[98] And -all roads ought to be wide enough to allow of the ordinary shyings -and frights of horses with safety, for shying is one of the natural -habits of the animal,[99] and it must be in such repair that even -skittish creatures may be driven without any risk of danger from its -condition.[100] The road, however, need not afford a perfectly clear -track to a runaway horse.”[101] - -“I wish that horse would stop switching his tail about,” remarked my -wife. - -“A very sensible desire on your part; for it has been decided in -Massachusetts that the liability of a town for accidents arising from -defects in a highway is removed if the defect could have been avoided -had not the horse by throwing its tail over the reins freed itself from -the driver’s control and so knocked the carriage against the obstacles -complained of.”[102] - -“It is a pity that judges have not something better to do than consider -the shakings of a horse’s tail,” said my wife, who seemed to be growing -cross. - -“’Tis a pity that they decided as they did, for one can scarcely -believe that the tossing of tails over the reins is one of those -extremely unlikely and abnormal acts which are considered acts of God, -and which ordinary sagacity cannot foresee; it seems rather an ordinary -incident of travel and so a contingency against which the road-maker -should provide.[103] However, to continue the subject on which I was -dilating, although a traveller is bound to have his carriage and -harness in good road-worthy condition, or else bear quietly the pains -and penalties,[104] still he need not always see that his carriage is -perfect, his team of the most manageable character and in the best -training, ere he goes out for a turn. If he uses ordinary care and -prudence and an evil befalls him from the state of the road (coupled -with some accidental cause), he can recover for his damages.[105] In -Maine, however, the judges seem inclined to take a different view and -absolve the town from liability where the accident would not have -happened but for something going wrong with the horse or carriage; they -say that if they are satisfied that an accident happened from a defect -in the road and a defect in the harness making it unsafe,--although -the driver knew not of it and thought all was right,--the injured one -cannot sustain an action against the town.[106] Where one Moulton”-- - -“Do you mean Beecher’s quondam friend?” asked my wife. - -“Oh, no; it was before the days of Mrs. Tilton’s notoriety. This -Moulton was driving on a bridge, and his horse, seeing another -plunge into the water, became unmanageable and threw the wagon into -the stream, there being no railing; the town had not to pay the -damages.[107] And where a sleigh-bolt broke, and then the horse bolted -and injured itself against a heap of stones in the road, the judges -considered that the driver had not exercised due care, and therefore -would have to settle the farrier’s little bill himself.[108] Similarly, -where a horse being instigated thereto by some evil spirit, refused to -hearken to the reins and so went over an unprotected bank, whereon, -perchance, the wild thyme grew, the poor owner of the nag was requested -to show that the accident would equally have occurred if the horse had -not been so uncontrollable, before he could get anything out of the -town.”[109] - -A gentle snore from the partner of my joys and sorrows told me that -I was wasting my eloquence and learning on the midnight air, so I -forbore, and shortly after we reached our home safe and sound. - - -FOOTNOTES: - -[65] Abbott _v._ Wolcott, 38 Vt. 666. - -[66] U. S. _v._ Hart, Peters C. C. 390. - -[67] Kennedy _v._ Way, 3 Law Reporter (N. S.), 184, Brightley (Pa.), -186. - -[68] Moody _v._ Osgood, 60 Barb. 644. - -[69] Davies _v._ Mann, 10 M. & W. 545. - -[70] Angell on Highways, § 263. - -[71] Hull _v._ Richmond, 2 Wood. & M. 343. - -[72] Mathews _v._ Winooski Turnpike Co., 24 Vt. 480. - -[73] Loker _v._ Brookline, 13 Pick. 346; Holman _v._ Townsend, 13 Met. -297. - -[74] City of Providence _v._ Clapp, 17 How. 168. - -[75] Wilson, J. Caswell _v._ St. Mary’s, etc., Road Co., 28 Q. B. -(Ont.), 247. - -[76] Brailey _v._ Southborough, 6 Cush. 141; Willard _v._ Cambridge, 3 -Allen, 574. In Massachusetts one cannot recover damages for not being -able to use the road, though he may for injuries received while using -it. - -[77] Woolrych on Ways (2d ed.), 78; Campbell _v._ Race. 7 Cush. 408. - -[78] Taylor _v._ Whitehead, 2 Dougl. 749; Carrick _v._ Johnston, 26 Q. -B. (Ont.), 65. - -[79] Hubert _v._ Groves, 1 Esp. 148; Griffin _v._ Sanbornton, 44 N. H. -246. - -[80] Greasley _v._ Codling, 2 Bing. 263. - -[81] Tisdale _v._ Norton. 8 Met. 388. - -[82] Robinson _v._ Cone, 3 Law Reporter (N. S.), 444; 22 Vt. 213. - -[83] Hartfield _v._ Roper, 21 Wend. 615; but see _post_. - -[84] Barnes _v._ Cole, 21 Wend. 188; Bridge _v._ Grand Junction Rw., 3 -M. & W. 246. - -[85] Cassedy _v._ Stockbridge, 21 Vt. 391. - -[86] Rice _v._ Montpelier, 19 Vt. 470; Tisdale _v._ Norton, 8 Met. 388. - -[87] Mt. Vernon _v._ Dusouchett, 2 Cart. 586. - -[88] Cobb _v._ Standish, 14 Me. 198. - -[89] Jenks _v._ Wilbraham, 11 Gray, 142. - -[90] Hunt _v._ Winfield, 36 Wis. 154; Woodman _v._ Nottingham, 49 N. H. -387. - -[91] Reed _v._ Belfast, 20 Me. 246; Chidsey _v._ Canton, 17 Conn. 475. - -[92] Sandford _v._ Augusta, 32 Me. 536. - -[93] Jaquish _v._ Ithaca, 36 Wis. 111. - -[94] Toms _v._ Whitby, 35 Q. B. (Ont.) 195; _S. C._, In Appeal, 37 Q. -B. 100. - -[95] Bliss _v._ Deerfield, 13 Pick. 102, Davis _v._ Hill, 41 N. H. 329. - -[96] Palmer _v._ Andover, 2 Cush. 601. - -[97] Kelsey _v._ Glover, 15 Vt. 708; Swift _v._ Newbury, 36 Vt. 355. - -[98] Palmer _v._ Andover, 2 Cush. 601. - -[99] Houfe _v._ Fulton, 29 Wis. 296; Stone _v._ Hubbardston, 100 Mass. -49; Kelley _v._ Fond du Lac, 31 Wis. 180. - -[100] Lower Macungie Tp. _v._ Merkhoffer, 71 Penn. St. 277. - -[101] Wharton on Neg. § 105. - -[102] Fogg _v._ Nahant, 98 Mass. 578; _S. P._, 106 Mass. 278. - -[103] Wharton, § 106. - -[104] Welsh _v._ Lawrence, 2 Chitty, 262; Smith _v._ Smith, 2 Pick. 621. - -[105] Hunt _v._ Pownal, 9 Vt. 411. - -[106] Moore _v._ Abbot, 32 Me. 46. - -[107] Moulton _v._ Sanford, 51 Me. 127; Horton _v._ Taunton, 97 Mass -266, n. - -[108] Davis _v._ Dudley, 4 Allen, 557. - -[109] Titus _v._ Northbridge, 97 Mass. 258. - - - - - CHAPTER III. - - INSURANCE. - - What’s an Accident?--Major Vis.--Exposure and - Death.--Wholly disabled.--What can be recovered.--Heavy - Weights.--Stumbling.--Pitchforked.--Change of Business.--Lost beneath - the Dancing Waves.--A Man not a Private Conveyance.--Carelessness. - - -Shortly after the events related in my last chapter, I expected -business to call me away from home. Accidents by rail--explosions, -collisions, over-turnings, exploits of the fire-fiend--had become so -much the reverse of angel’s visits, that though some said I had the -hanging mark upon me, I determined to make assurance doubly sure and -take a bond of fate in the shape of an “accident ticket;” not that hope -told a flattering tale, or that vain expectations of making anything by -the transaction filled my soul, but as a preventive rather than a cure, -for accidents seldom happen when one is prepared, as showers seldom -descend when one is armed _cap-a-pie_ with umbrella and thick boots. - -Ere spending my twenty cents, however, I determined to find out what -an accident, within the meaning of the ticket, really might be; -but I discovered that no satisfactory definition of the word had -ever been given by the courts. Cockburn, C. J., says that it means -some violence, casualty, or _vis major_; and that disease or death, -generated by exposure to heat, cold, damp, the vicissitudes of climate -or atmospheric influences, cannot be called accidental, unless, -perhaps, where the exposure is actually brought about by circumstances -which might give it the character of accident,--as a shipwrecked -mariner dying from exposure to cold and wet in a small boat upon the -roaring, raging ocean.[110] This decision settled that I could recover -nothing if my nose or my toes were frozen off; nor if my early demise -was brought about by croup, measles, or small-pox, caught in the -cars, could my family recover any remuneration for the loss of the -house-band. If, like the good Samaritan’s friend, I should chance to -fall among thieves, who should strip me of my raiment, wound me, and -depart leaving me dead, that, probably, would be considered a death -by violent and accidental means, for Judge Withey, of Michigan, has -laid it down that an accident is any event which takes place without -the foresight or expectation of the person, acted upon or affected -by the event.[111] In Maryland it has been defined as an unusual and -unexpected result attending the performance of a usual and necessary -act; and there it has been decided that every injury caused by -accident, save those specially excepted by the policy, are covered -by it.[112] And in New York an accident is said to be something which -takes place without any intelligent or apparent cause, without design -and out of course.[113] - -I was pleased to find that I might recover for a “railway accident,” if -anything happened to me while travelling by the cars, although nothing -happened to the train, for instance, if while getting out, after the -cars had stopped, I should slip, fall, and injure myself, not through -any negligence of my own, but because the steps were slippery;[114] -and that any money to which I might become entitled under the policy -would not in any way lessen the damages which I might claim against -the carrier for any injuries received to my corpus.[115] This is only -fair, as one pays premiums to insure himself on the understanding that -his right to be compensated when he is injured is an equivalent for -the premium paid. It is a _quid pro quo_; larger if he gets it, on the -chance that he may never get it at all.[116] Where compensation to the -insured is granted “in case of bodily injury of so serious a nature -as wholly to disable the assured from following his usual business, -occupation, or pursuits,” I would be entitled to pay if so disabled -that I could not get to my office to work, although I were well enough -to transact business in my own bedroom, or clad in a _robe de nuit_ -instead of a professional toga.[117] For total disability from the -prosecution of one’s usual employment means inability to follow one’s -usual occupation, business, or pursuits in the usual way:[118] _i. e._, -_e. g._, a farmer who can do nothing but milk, and a merchant who can -only keep his books, are totally disabled within the meaning of such a -provision as the above.[119] To be _wholly_ or _quite disabled_ is to -be unable to do what one is called upon to do in the ordinary course of -business, and this is by no means the same thing as being “unable to do -any part of one’s business.”[120] - -The decided cases made it clear that I could recover only for the -personal expense and pain occasioned by the accident, and not damage -for loss of time or of profit occasioned thereby; and also, that if I -insured my life for only $1000, it could not be assumed that my life -was worth only that and nothing more, and an injury sustained estimated -at a proportionate sum.[121] - -I also, as a result of my researches, learned the following: If a -policy provided that the company would be responsible for accidents -operating from external causes, I would get something if I injured -my spinal marrow by lifting my trunk;[122] but it would appear that -rupture caused by jumping from the cars while in motion and afterwards -running to accomplish certain business, done voluntarily and in -the ordinary way, and without any necessity therefor, and with no -unforeseen or involuntary movement of the body, such as stumbling, or -slipping, or falling, is not caused by violent or accidental means. -Though it might be otherwise if in jumping I should lose my balance and -fall, or strike some unseen object, or in running should stumble or -slip.[123] If, while on my travels, I should take to amateur farming -(not the most likely thing in the world, bucolic desires not filling my -soul, and the thermometer being down below nothing), and while pitching -hay let the handle of the pitchfork slip and pitch into my bowels, -producing thereby peritoneal inflammation, whereof I should die, that -would be an accidental death![124] Nor would the casual change of -occupation from the pursuits of the forum to that of the field, forfeit -my right to recover.[125] Where an accident produced hernia, which -caused death, it was held that the death was not within the exception -of the policy which provided that the company did not insure against -death or disability arising from rheumatism, gout, hernia, etc.[126] -If I should go in bathing and die from the action of the water causing -asphyxia, that, too, would be a death by external violence within the -meaning of the policy, whether I swam out too far, struck my head -against a rock in diving, or--unskilled in the natatorial art--got out -of my depth; but if I succumbed to an attack of apoplexy while taking -the bath, that would not be a death from accident.[127] A provision -that no claim is to be made under a policy, except in respect of an -injury caused by some “outward and visible means,” applies only to -non-fatal injuries.[128] - -I found also, that it was legally correct--however paradoxical it may -appear--to say that I was travelling in a carriage, when in fact I was -actually alighting therefrom;[129] and that I would be “travelling in a -carriage provided for the transportation of passengers,” if, while in -the prosecution of my journey, I walked on foot, as passengers are wont -to do from one station to another. The courts, ever ready to interpret -a policy in the way most advantageous to the insured,[130] will not -allow “travelling in a public conveyance” to be construed literally, -and if an accident happens while one is getting off or on a train, -or attempting to do so for any reasonable purpose, it comes within -the terms of a policy insuring against accidents while travelling -by public conveyance.[131] Mr. John Wilder May (who has written a -large book on Insurance) thinks that, perhaps, in a reasonable and -substantially accurate sense a man may be said to be travelling by -public conveyance, when he is prosecuting a journey by rail or boat, -whether he is sitting still in a motionless car, or standing serenely -on the station-platform, or walking to and fro thereon waiting for a -start, or going into a station for prog, or returning therefrom after -having grubbed;[132] although Chase, C. J., held that a man who had -performed the greater part of a journey by steamboat and, there being -no public conveyance, proceeded on foot to his house some miles distant -from the port, could not exactly be said to be a private conveyance to -himself while walking.[133] An elephant may be a traveller.[134] - -A poor fellow away down in Kentucky inadvertently and needlessly -put his arm out of a car window and had it injured by being bumped -against a post, and the court held the injury not accidental, being -attributable to the person’s own negligence.[135] But as this case -stands alone, it will scarcely answer to point a _moral_ or adorn a -tale, and the better opinion seems to be that contributory negligence -is no defence, as the liability rests upon contract, one of the chief -objects of which is to protect a man against his own carelessness or -negligence.[136] But one must not be guilty of willful and wanton -exposure of himself to unnecessary danger; for instance he must -not ride on the engine,[137] or attempt to cross the track when an -approaching train is within fifty feet.[138] - -I was now assured that to be insured was sure to bring contentment, if -not riches. - - -FOOTNOTES: - -[110] Sinclair _v._ Maritime Pass. Ass. Co., 3 El. & E. 478. - -[111] Ripley _v._ Rw. Pass. Ass. Co., 2 Bigelow, Ins. Cases, 738. - -[112] Prov. Life Ins. & Inv. Co. _v._ Martin, 32 Maryland, 310. - -[113] Mallory _v._ Travellers Ins. Co., 47 N. Y. 52. - -[114] Theobald _v._ Rw. Pass. Ass. Co., 10 Ex. 45. - -[115] Bradburn _v._ Gt. W. R., L. R., 10 Ex. 3, 11 Eng. Rep. 330. - -[116] Dalby _v._ Indian & L. Life Ass. Co., 15 C. B. 365. - -[117] Hooper _v._ Accidental Death Ass. Co., 5 H. & N. 546; affirmed on -appeal, 5 H. & N. 557. - -[118] May on Insurance, p. 644. - -[119] Sawyer _v._ United States Casualty Co., 8 Law Reg. (N. S.), 233. - -[120] Per Wilde, B., Hooper _v._ Accidental Death Ins. Co., 5 H. & N. -546. - -[121] Theobald _v._ Rw. Travellers Ins. Co., 10 Ex. 45. - -[122] Martin _v._ Travellers Ins. Co., 1 F. & F. 505. - -[123] Southard _v._ Rw. Pass. Ass. Co., 34 Conn. 574. - -[124] N. Am. L. & A. Ins. Co. _v._ Burroughs, 69 Penn. St. 43. - -[125] Admins. of Stone _v._ U. S. Casualty Co., 34 N. J. 371; N. Am. -L. & A. Ins. Co. _v._ Burroughs, _supra_; Provident Life Ins. Co. _v._ -Fennel, 49 Ill. 180; Prov. Life Ins. & Inv. Co. _v._ Martin, 32 Md. 310. - -[126] Fitton _v._ Acc. Death Ins. Co., 17 C. B. (N. S.), 122; but see -Smith _v._ Acc. Ins. Co., L. R., 5 Ex. 302, a case of erysipelas. - -[127] Trew _v._ Railway Pass. Ass. Co., 5 H. & N. 211, affirmed on -appeal, 6 H. & N. 839. - -[128] Mallory _v._ Travelers’ Ins. Co., Ct. of Appeals, 47 N. Y. 52. - -[129] Theobald _v._ Rw. Pass. Ass. Co., 10 Ex. 44. - -[130] Hooper _v._ Accid. Death Ins. Co., 5 H. & N. 545; 6 Ib. 839; -Smith _v._ Acc. Ins. Co., per Kelly, C. B., _supra_. - -[131] Tooley _v._ Rw. Pass. Acc. Ins. Co., 2 Ins. L. J. 275. - -[132] May on Insurance, p. 661. - -[133] Ripley _v._ Ins. Co., 16 Wall. (U. S.), 336. - -[134] Gregory _v._ Adams, 14 Gray, 242. - -[135] Morel _v._ Mississippi Valley Life Ins. Co., 4 Bush (Ky.), 535. - -[136] Prov. Life Ins. & Inv. Co. _v._ Martin, 32 Md. 310; Trew _v._ Rw. -Pass. Ass. Co., 6 H. & N. 839; Schneider _v._ Provident Life Ins. Co., -24 Wis. 28; Champlin _v._ Rw. Pass. Ass. Co., 6 Lansing (N. Y.), 71. - -[137] Brown _v._ Rw. Pass. Ass. Co., 45 Mo. 221; May, p. 657. - -[138] May on Insurance, p. 667. - - - - - CHAPTER IV. - - EVERYTHING MUST BE SOUND, AND EVERY ONE CAREFUL. - - The Reason why.--Literature of Stages.--Off on Wheels.--Soundness - warranted.--Seats taken.--Fare paid, either First or Last.--Damage to - Trunks.--Involuntary Aeronautics.--Passengers injured.--Negligence - of Passengers, or of Drivers.--Carriers liable for Smallest Fault; - Not Insurers.--Genuine Accidents--Horses left standing.--Driving and - upsetting a Friend.--Non-repair of Roads.--Care required.--Tennysonian - Stanzas.--Pleasures of the Weed and Rural Life. - - -The long vacation was rapidly approaching,--that season when the heat -having lengthened out the days (as it does everything else), the -members of the legal profession abandon rejoinders and demurrers, cast -briefs and records, with physic, to the dogs, and, satisfied with bills -and conveyances, wander off in search of change in cooling streams -and pastures green. In my modest household was eagerly discussed the -question, “Whither shall we flee?” - -My wife’s step-mother’s brother’s wife’s mother’s aunt, had recently -met with a horrible and excruciating death upon a railway car, so -my wife had solemnly vowed never again to commit herself to the -safe-keeping of a railway company; this, therefore, shut us off from -the usual means of exit from our inland city, and yet as “_Exeunt -omnes_,” was the cry, we could not surely stay at home; if we did, we -would have to lie low in the kitchen and back premises, that we might -appear to others to be away. At last I found that there was still a -tumble-down old stage-coach making, with the assistance of two skeleton -horses, tri-weekly trips to and from the little Village of Ayr, where -we could catch a steamboat and thus do in proper style the Lakes and -the St. Lawrence, the Ottawa and the far-famed Saguenay. - -When this discovery of mine was divulged at home, great was the -rejoicing, loud pæans rose, and for days I was deluged with quotations -from all the novelists, from old Fielding to poor Dickens anent stages, -and coaches, and stage-coaches. I was told of all the heroes of -romance, from Tom Brown back to Tom Jones, who had journeyed thereby; -I was confidently informed, on the authority of Mr. William Makepeace -Thackeray, that in every coach there is sure to be found an asthmatic -old gentleman, a fat man, swelling preternaturally with great coats and -snoring indecently, and a lone widow who insists upon all the windows -being shut, and fills the vehicle with the fumes of rum which she sucks -perpetually from a black bottle. Mr. Thomas Hughes was quoted to prove -how much more punctual stages are than railway trains, for he tells of -one that went “ten miles an hour, including stoppages, and so punctual -that all the road set their watches by her.” The old joke concerning -the young man who, on being asked if he had ever been through Euclid, -replied, “Yes, I have driven through it on a stage-coach,” was given -to me once again as if uttered for the first time; and I was informed -that an Indian squaw, the first time she saw a coach pass at a spanking -trot, and watched the wheels revolving rapidly, clapped her hands in -delight, exclaiming, “Run, little one, run! or the big one will catch -you!” The subject gradually became monotonous. - -At length, however, the day of our departure dawned. - -When the coach drove up to the door, at sight of the dusty tumble-down -conveyance, my wife--true to her woman’s nature--was half inclined to -decline to trust her precious self therein, but as I had paid our fares -when booking our places--the driver having asked for the money, as he -had a perfect right to do[139]--and as I assured her every stage-coach -proprietor warrants that his stage is sufficiently secure to perform -the journey proposed, and is bound to examine his vehicles every day, -and if he does not is responsible for accidents,[140] she consented to -start; although I could see from her expression of countenance that -the ideal coach which she had been fondly cherishing was very different -to the one into which we entered. Our luggage was mounted on top, and -soon we were rumbling down the street to pick up other passengers, as -we were numbers one and two. A sudden stop to mend some broken harness -called forth an exclamation of disgust from the fair being beside me, -and a remark from myself to the effect that she need not be anxious, as -the owner was responsible that all the equipments of the conveyance, -drivers, horses, harness, were fit and suitable.[141] - -In a few minutes we drew up at the door of a large mansion from which -quickly emerged four old maids; they drew back in horror when they saw -my pantaloons, one exclaiming:-- - -“Driver, we engaged the whole inside of the coach, and there’s a man in -it.” - -“Yes, mum,” said John, “but one of you can sit outside along of me for -a bit; the gentleman is not going far.” - -“You have no right to separate us[142] or let other persons get -inside,” replied number one, waxing wrathy. - -“No, indeed,” chorused the others. - -“Ladies,” I said, “I will be most happy to give up my place and ride -outside; the driver should have told me that the inside had been -engaged, and then my wife and myself would have waited until some -other day.” - -“Well,” quoth the driver, “the ladies had not paid for the seats, and -we were not bound to keep them for them.”[143] - -With withering sarcasm the eldest maid replied, “Here is your money, -sir.” - -If a look could have annihilated a coachee, never again would that man -have mounted a box, or handled the ribbons, after the Medusa glance he -then received. I emerged from the inside, into which the ladies stowed -themselves and several parcels, packages and bandboxes, while several -boxes of larger growth, containing their staple goods, were hoisted up -aloft. After picking up a man we rattled off down the street into the -open country. - -The last comer had not as yet paid his fare, and at the first -stopping-place he was asked for it; but he demurred, saying that as he -had not prepaid the fare, it was not due until the whole journey was -completed. - -“You will have to leave the stage then,” said the collector. - -“I’ll do nothing of the kind,” returned the other, “and if you force me -off it will be at your peril, for your driver permitting me to commence -the journey without prepayment is an acquiescence in my riding to the -end before paying up, so you may _howl and_ swear as much as you -like.”[144] - -At this the man of fares subsided, and we resumed our slow jog-trot -without any diminution of numbers. The jolting of our vehicle soon -caused one of the trunks belonging to one or other of the four sisters -to gape and yawn in a manner which exposed the contents thereof in -a way which would doubtless have caused the fair owner to blush to -the roots of her hair (if it was her own she wore), and it appearing -probable that articles of feminine apparel would soon be scattering -themselves over the dusty road, and knowing that the box not having -been securely and properly packed and fastened, the carrier would not -be liable for any loss or damage happening to it,[145] I persuaded the -driver to stop until the mischief could be remedied; for such an injury -would vex a saint, much more a shrew of her impatient humor. With much -grumbling he consented, and all was soon made taut and right. - -To make up for lost time, we now rushed ahead at a terrific pace, -considering the clumsy, cumbrous, jingling, jerking concern in which we -were travelling. The ladies within (who were crushing their bonnets, -elbowing each other under the fifth rib, jumping up and bouncing into -one another’s laps with every plunge of the coach), cried one and -all:-- - -“Oh, do be careful--don’t go so fast.” And I, in admonitory tones, told -the driver that we would hold him liable for any injuries that might -happen to either ourselves or our baggage, in consequence of his racing -in such an improper manner.[146] - -“All right,” said he, “I’m responsible, and I am master too, here; so -I’ll do just what I like.” - -Scarce had he uttered these words when we drew near a large spreading -tree, standing in the middle of the road. At a glance I saw that the -coach must pass under the outstretched branches, and that they were -so low that they would assuredly sweep the top of the stage clear of -luggage and whatsoever else was thereupon, and unfortunately I myself -was thereupon. I had no choice left but to jump off or remain in -certain peril; mindful of my early performances in the gymnasium, of -the two threatening evils I chose what appeared the lesser, and as the -foremost twigs took off the hat of the driver (who was considerably -below where I was perched), I sprang to the ground, and, as if in rage -at my escape, the giant forest tree hurled two or three trunks after -me; one came with a thud upon my foot and bruised it rather badly. - -Of course the ladies screamed loudly as they saw me flying in a -graceful parabolic curve through the azure air. The driver as rapidly -as possible pulled up his old horses. Some loud conversation took -place between myself and the man, interspersed with ejaculations more -vigorous than religious, he contending that I had only myself to thank -for my injuries, as if I had bent low enough I would not have been -touched by the tree. - -“All very well,” I replied, “if I had been the size of the little -husband no bigger than a thumb what was put into a quart pot and made -to beat a drum, but Mr. Thomas Thumb himself, if he had been on top, -could not have escaped from that tree. However, your master is liable -to me for the injuries I have received.”[147] - -“No, he isn’t,” surlily replied the Jehu, “because I say if you had -staid quiet you would not have been hurt.” - -“Even if that were so, it would make no difference, as I entertained -a well-founded apprehension of being decapitated by that ugly -branch.”[148] - -I argued not, however, with the man, but limping back to the coach, -remounted to my elevated seat, accompanied by the prayers and -entreaties of my wife, not to blight her young life by exposing myself -to any more such frightful risks outside, but to come within where she -was sure there was plenty of room; but I preferred the fresh air and -fine view aloft to the close musty smell and narrow field of vision -down below. - -When again under way, my fellow-passenger, who by sitting on the box -with the driver had avoided the collision, began to tell me of his -grandmother, one Mistress Elizabeth Dudley, who on one occasion was -an outside passenger to the Cross Keys, Chelsea. When in front of the -gateway leading to the stable-yard of that inn, the coachman requested -the travellers to alight, as the passage into the yard was awkward. As -Mrs. Dudley did not wish to soil her pumps in the dirty road, she said -she would rather be driven into the yard. Coachee told her to stoop, -and then lashed up his horses. The coach was 8 feet 9 in. high, and -the archway only 9 feet 9 in., and Betsy, not being able to squeeze -herself into the interstice of twelve inches, received a severe injury -by having her back and shoulders knocked against the archway; she -recovered, however, with £100 damages.[149] - -I said: “Of course, to excuse the driver from responsibility, it must -always be shown that the plaintiff was guilty of negligence which -contributed directly to the injury.[150] I remember one case where a -man was asked by the driver to ride inside a coach, and told that if -he remained outside it would be at his own risk; he treated both the -request and the hint with silent contempt, and being injured by the -overturning of the carriage, sued the owners and got damages, as it -appeared that the accident occurred from the negligence of the driver, -and that the position of the obstreperous man in no way contributed to -it.”[151] - -“It is clearly settled,” returned my new made acquaintance, “that -a driver, or his master, although he does not warrant the absolute -safety of his passengers is, nevertheless, answerable for the smallest -negligence;[152] and that the proprietor is also responsible for -all defects in the coach, even though they be out of sight and not -discoverable upon an ordinary examination, as a _sharp_ fellow once -proved.”[153] - -“An American, however, _in gall_ and bitterness was told by a court, -that carriers, although bound to use the utmost care and diligence -to prevent those injuries which human care and foresight can guard -against, still are not liable for injuries happening through hidden -defects which could not from the most careful and thorough examination -be discovered.”[154] - -“Yes,” interrupted my friend, “but in the State of Illinois, a -_Potter_, who owned a stagecoach, was held liable for an injury to a -passenger, which resulted from the breaking of an axle-tree, through -the effect of frost.”[155] - -“Long ago the courts in England held that a man established a _primâ -facie_ case by proving his taking passage in a coach, his coming to -grief while in it, and the injury he sustained; and then that the -proprietor must show, if he could, that his vehicle was as good as a -vehicle could be, and that the driver was as skillful a handler of the -reins as could be found.”[156] - -“Yes, as Best, C. J., once said, a coachman must have competent skill -and must use that skill with discretion; he must be well acquainted -with the road he undertakes to drive; he must be provided with steady -horses, a coach and harness of sufficient strength and properly made, -and also with lights by night. If there be the least failure in any -one of these things, the duty of the proprietor is not fulfilled, and -he is answerable for any injury or damage that happens.[157] He also -is so unless the driver exercised a sound discretion at the time of -the accident. If he could have exercised a sounder judgment or better -discretion than he did, as by driving slower or faster, or by telling -his passengers to dismount at a dangerous or difficult place, the owner -must make compensation.”[158] - -“Fortunately, however, for the pockets of carriers, they are not -considered as actual insurers of the safety of those who intrust their -precious bodies to them. Accidents will happen in the best regulated -concerns, and it appears to be settled that when they do occur where -there is _no_ negligence or default, the law will protect carriers from -the demands of injured ones.”[159] - -“Oh, yes, that is a well-established doctrine, and many cases might be -quoted to sustain it. Where, for instance, on a dark night the lights -were obscured by a fog, or the coachman without any fault of his gets -off the road.”[160] - -“And also,” I chimed in, “where extreme cold prevented the driver doing -his duty;[161] and where the reflection of the sun upon falling water -frightened the horses so that they ran away and knocked things into -pie;[162] and where an axle-tree that was sound and perfect snapped -asunder.[163] And where a sleigh or a carriage upsets through mere -accident and without culpable neglect on the part of the driver--as -where he had been driving along a track in a ditch to take advantage of -the small modicum of snow remaining and in turning on to the road again -got into a hidden hole and upset--and the horses escape from the hands -of the Jehu, and run away and do mischief to the person or property -of other people; though undoubtedly the owner would be liable where -there was clear negligence on the part of himself or driver which led -to the carriage being overturned and the escape of his horses.[164] If -a man has carelessly left his horses standing on the highway, while -he is drinking or loafing in a tavern, and the horses run away and -commit an injury, the right to recover damages is clear.[165] Even if a -third party causes the stampede of the horses which are left standing -alone, the owner will be liable for all damage done;[166] and it will -be inferred that a horse was negligently fastened if it gets loose and -runs away.[167] But where a pony and chaise were left standing in the -street without any person to take care of them, and afterwards the pony -was seen running away with the chaise, and those who saw the runaway -did not know the cause of the starting. The owner of the turn-out, -however, proved that his wife was holding the nag by the bridle, when -a Punch and Judy show coming up frightened the pony, which breaking -from the lady ran off, and Lord Denman in charging the jury, said: ‘If -the facts are true as suggested by the defense, I very much think you -will be disposed to consider this an inevitable accident; one which the -defendants could not prevent.’”[168] - -“Of course if one gentleman when out driving offers another a seat -in his carriage, he is not liable at all for an accident afterwards -occurring; unless, indeed, it were of a gross description; and, -as nothing is more usual than for accidents to happen in driving, -without any want of care on the part of the driver, no _primâ facie_ -presumption of negligence is raised when an accident does occur, so the -injured one must give affirmative evidence of gross negligence on the -part of his obliging friend.” - -“Oh, yes; that is well settled by a case where the Privy Council -reversed the decision of the Supreme Court of Victoria. A gentleman -was conveying the plaintiff, who was a decorator and gardener in his -employ, to perform for him certain work. The defendant, the gentleman, -drove, and while on the road the king-bolt broke, the horses bolted, -the carriage was overturned, the plaintiff thrown out and stunned; and -when the man came to himself the horses and forewheels of the buggy had -vanished. There being no evidence of gross negligence, the decorator -had to bear his injuries and bruises unavenged.[169] One cannot fairly -be expected to examine very strictly and carefully the state of the -bolts and fastenings of his carriage every time he goes out with -it.”[170] - -“By the way,” said my companion, “your own right to recover is -perfectly clear, for I am sure that I have seen in some place or other -that where a woman was jolted off a stage and had her leg fractured -by some luggage that was thrown on it, she was successful in a suit -against the owners of the vehicle.”[171] - -“Thanks for the information,” I replied, “I did not know that there was -a case so exactly on all fours with my own.” - -“A little research nowadays will enable one to find a decision on -almost every possible point the mind of man can conceive, so great is -the number of the reports now accumulating with fearful rapidity upon -the shelves of law libraries. Ah me! the speed with which the yearly -accretions of reports fill up every library, not of Brobdignagian -proportions, is an appalling phenomenon. It makes me sigh to consider -the lot of our grandchildren who may chance to commence the study of -law! I”-- - -A sudden jerk and bump, caused by a wheel hitting against a stump in -the middle of the road, stopped the sentence and set us talking about -the liability of road companies and municipalities as to keeping the -roads in a proper, safe, and convenient condition. - -“Yes,” said my friend, “towns are not absolved from their -responsibility because some one else is bound by law to keep the -road smooth and safe.[172] But of course the liability is limited to -injuries caused by defects and obstructions for which the town might -be indicted, or which by law they are bound to remove.”[173] - -“I remember,” I said, “hearing of a man who lost his horse in a deep -mud-hole filled with water and partly in the highway, which he took for -a watering-place, recovering its value from the city.”[174] - -“Yes; if it had been a hired nag, for the value of which the driver -had to pay the owner, his rights and his wrongs would have been just -the same.[175] If this coach had been upset just now, the road company -would have been liable to the coach proprietor for all injuries to -this venerable structure on which we are perched, but not for any -damages which we might recover against him for bruises and scratches, -dislocations and broken bones that might fall to our lot.”[176] - -“Still there are some cases of accidental damage which the law regards -as mere misfortunes, or pure accidents, where no negligence or fault is -imputable to any one; as where a man was thrown out of his wagon and -broke his collarbone in consequence of the wheel getting into a small -rut. The court will not assume that the badness of the road is proved -beyond a peradventure merely because an accident took place while the -driver was exercising due care.”[177] - -“One is not required, however, to exercise extraordinary care and -prudence.[178] And as old Lord Ellenborough says, before one can -recover damages he must not only show that there was an obstruction -that caused the trouble, but also that he himself was not lacking in -ordinary care and in endeavoring to avoid it.”[179] - -“I always think highly of Ellenborough’s decisions,” I said, “although -he was such a ninny that when in ‘the Devil’s Invincibles’ (a famous -volunteer corps), he was ever in the awkward squad; and Eldon used to -say that he thought Ellenborough more awkward than himself, but others -thought it was difficult to determine which of the two was entitled to -bear the palm.” - -“Ah, yes! ‘the Devil’s Invincibles’ was the corps in which there were -some attorneys, and when Lieutenant-colonel Cox, Master in Chancery, -who commanded, gave the word ‘Charge,’ two-thirds of the rank and file -took out their notebooks and wrote ‘6_s._ 8_d._’” - -“Ha! ha! that is as good as the story of the volunteer company of -lawyers, who, when the drill-sergeant gave the command ‘Right about -face,’ all stood still, and cried, ‘Why?’” - -“Unlike the six hundred, - - ‘Theirs was to make reply, - Theirs but to reason why, - Theirs not to do, nor die.’” - -“You might add the concluding lines of that noble poem,” I said. - - “‘When can their glory fade? - Oh the huge charge they made! - All the world wondered. - Pay them the charge they made! - Pay them the bill they made! - Noble attorneys.’” - -“Good. Very good. Do you smoke.” - -And he added to the effect of his question by handing me a well filled -case of choice cheroots. Soon we were both lazily puffing at our -cigars, and dreamily enjoying ourselves as we drove along past woodland -and meadow, up hill and down, over sparkling, bubbling streamlets, -beside fields of waving grain. - -The day was charming. The heat of the July sun was tempered by a -cooling breeze which blew softly upon us as we journeyed. The dust -had been laid to rest by the sprinkling of an early shower; the birds -carolled gayly amid their leafy bowers; here and there the squirrel -peeped forth from his hiding-place and chattered at us as we passed, or -raced ahead along the zig-zag fence; at one moment fluttered by a - - Butterfly ranging on his yellow wings. - A primrose gone alive with joy, to dance with living things; - -then came large white ones “which looked as if the May-flower had -caught life, and palpitated forth upon the winds.” - -And my friend dreamily muttered, “Would that I were an insect! Fancy -the fun of tucking one’s self up for a night in the leaves of a rose, -and being rocked to sleep by the gentle sighs of summer air; and having -nothing to do when you awake but to wash yourself in a dewdrop, and -then eat your bedclothes.” - -Ever and anon we heard the truly rural sounds of the whetstone against -the scythe, and the lowing of the kine, or the plaintive cry of some -wandering lamb. All these arcadian sights and sounds acted as a gentle -lullaby upon our senses already soothed by nicotine, and we slept. - - -FOOTNOTES: - -[139] Chitty on Contracts, 292. - -[140] Bremner _v._ Williams, 1 C. & P. 414; Sharp _v._ Grey, 9 Bing. -457. - -[141] Crofts _v._ Waterhouse, 3 Bing. 321; Jones _v._ Boyce, 1 Stark. -493; Stokes _v._ Saltonstall, 13 Peters, 181; Ingalls _v._ Bills, 9 -Met. 1. - -[142] Long _v._ Horne, 1 C. & P. 611. - -[143] Ker _v._ Mountain, 1 Esp. 27. - -[144] Howland _v._ Brig Lavinia, 1 Peters Adm. 126; Detouches _v._ -Peck, 9 Johnson, 210. - -[145] Walker _v._ Jackson, 10 M. & W. 161. - -[146] Mayor _v._ Humphries, 1 C. & P. 251; Gough _v._ Bryan, 5 Dowl. -765. - -[147] Ingalls _v._ Bills, 9 Met. 1; Stokes _v._ Saltonstall, 13 Pet. -(U. S.) 181; Frink _v._ Potter, 17 Ill. 406. - -[148] Jones _v._ Boyce, 1 Stark. 493. - -[149] Dudley _v._ Smith, 1 Camp. 167. - -[150] Colegrove _v._ N. Y. & Harlem, etc., R. R. Co., 6 Duer, 382. - -[151] Keith _v._ Pinkham, 43 Maine, 501; Lackawana & B. R. R. Co. _v._ -Chenewirth, 52 Penn. St. 382. - -[152] Harris _v._ Costar, 1 C. & P. 636; Christie _v._ Griggs, 2 Camp. -79. - -[153] Sharp _v._ Grey, 9 Bing. 457. - -[154] Ingalls _v._ Bills, 9 Met. 1. - -[155] Frink _v._ Potter, 17 Ill. 406. - -[156] Christie _v._ Griggs, 2 Camp. 79. - -[157] Crofts _v._ Waterhouse, 3 Bing. 319; Farish _v._ Reigle, 11 -Gratt. 697. - -[158] Stanton _v._ Weller, Hil. Term, 6 Vict. U. C. - -[159] Aston _v._ Heaven, 2 Esp. 533. - -[160] Crofts _v._ Waterhouse, 3 Bing. 321. - -[161] Stokes _v._ Saltonstall, 13 Peters, 181. - -[162] Aston _v._ Heaven, _supra_. - -[163] Parker _v._ Flagg, 26 Me. 181; Add. on Contracts, 495. - -[164] Robinson _v._ Bletcher, 15 U. C. Q. B. Rep. 160. - -[165] Ibid. - -[166] Illidge _v._ Goodwin, 5 C. & P. 190; Park _v._ O’Brien, 23 Conn. -339. - -[167] Strup _v._ Edens, 22 Wis. 432. - -[168] Goodman _v._ Taylor, 5 C. & P. 410; Kennedy _v._ Way, Brightley -(Pa.), 186. - -[169] Moffatt _v._ Bateman, L. R., 3 P. C. App. 115. - -[170] Ibid. - -[171] Curtis _v._ Drinkwater, 2 B. & Ad. 169. - -[172] Wallace _v._ New York, 2 Hilton, 440; Phillips _v._ Veazie, 40 -Me. 96. - -[173] Merrill _v._ Hampden, 26 Me. 236; Davis _v._ Bangor, 42 Me. 522. - -[174] Cobb _v._ Standish, 14 Me. 198. - -[175] Littlefield _v._ Biddeford, 29 Me. 310. - -[176] Talmadge _v._ Zanesville & M. Road Co., 11 Ohio, 197. - -[177] Chappel _v._ Oregon, 36 Wis. 145. - -[178] Cremer _v._ Portland, 36 Wis. 92. - -[179] Butterfield _v._ Forrester, 11 East, 60. - - - - - CHAPTER V. - - NEARLY DRIVEN TO DEATH, AND HOW TO PASS. - - Narrow Escape.--Look out for the Locomotive when the Bell - rings.--Railway not liable when Driver in Fault.--Horses frightened - by Engine.--Ferry-boats and Men.--On the Wrong Side.--The Laws of the - Road.--Fatal Indecision.--Lien on Trunks.--Reflections on Lawyers. - - -We had a sharp awakening from our calm repose. A shrill cry of “Stop!” -a jerk that nearly threw us to the ground as the driver reined in his -horses, the wild fierce screech of an engine, the rumbling roar of a -train as it dashed by, recalled us effectually from our wanderings in -dream-land to the fact that we had been near a sudden and a fearful -death. The driver had been nodding sleepily on his box and had not -noticed that we were so near a railway crossing, and so had not looked -out for the train; and when aroused, the horses’ feet were actually -upon the track and the cars but some seventy yards distant. The train -as it rushed past almost scraped the horses’ noses, so little had he -been able to back them. On looking round I saw that the track must -have been visible for some time before we came upon it, and one of the -ladies said that she had heard a whistle a few seconds previously. - -Of course, as might be expected, we all launched forth against Master -Coachee, who was too frightened to reply. I said:-- - -“Don’t you know that you are bound to keep your eyes open? It is your -duty, and a duty dictated by common sense and prudence, on approaching -a crossing, to do so carefully and cautiously, both for the sake of -your own passengers and those travelling by rail.”[180] - -“Yes,” chimed in my friend, “Chief Baron Pollock says, that a railway -track _per se_ is a warning of danger to those about to go upon it, and -cautions them to see whether a train is coming.”[181] - -“One must judge and act reasonably in crossing a track,” I continued. -“One must not blindly and willfully drive upon it whether there is -danger to be apprehended from his doing so or not. If one willfully -goes upon the line of rails, as you were about to do, when danger -is imminent and obvious, and sustains damage, he must bear the -consequences of his own rashness and folly.[182] In fact, of late it -seems to have been held that a man crossing a railway where there are -no gates or flagmen must stop, listen, and keep a sharp lookout for -the trains.”[183] - -“And,” quoth my new friend, “a traveller is not exonerated from the -duty of looking up and down the rails before going upon them, by reason -of the engineer omitting to ring the bell or blow the whistle; nor is -the company in such a case liable for injuries,[184] unless it is shown -that the engineer’s omission had a tendency to produce the loss or -damage.”[185] - -“The Court of Appeals in the State of New York, however, holds that a -traveller on a public road has a right to rely upon railway companies -obeying the law and giving the necessary warnings when a train is -approaching a crossing.[186] And if through negligence horses are -frightened at a crossing, the railway company is responsible for all -damages arising.[187] Moreover, the late Sir J. B. Robinson, C. J., -of Ontario thought that where the proper signals were neglected, the -company could not excuse themselves by showing that the injured one did -not manage so well as he might have done, or that his horse was restive -or unsteady;[188] and”-- - -Here a low wailing cry of “Oh, we might have all been killed--been -killed--been killed”--uttered by one of the old maids, the others -joining in the chorus, struck upon our ears. I chimed in with:-- - -“And if we had, allow me to inform you ladies, that neither we -ourselves nor those who come after us could recover damages against -the company therefor, because it would have been owing to the gross -carelessness of our driver,[189] and we would be considered as being in -the same position as he is and partakers with him in his sins.”[190] - -“That’s so,” said my friend. “Every traveller in a conveyance is so far -identified with the man who drives or directs it, that if any injury -is sustained by him from collision with another vehicle, through the -joint negligence of the drivers of the two traps, so that his driver -could not maintain an action against the other driver, the passenger is -himself equally prevented suing.”[191] - -“What a shame!” chorused the Graces, plus one. “And is there nobody you -can punish?” they querulously queried. - -“Oh, yes; you can sue your own driver, or his employer. You have a -clear and undoubted remedy against them.”[192] - -“Much good it would do you to sue me,” growled the man. “You can’t -take the breeks off a Heelander.” - -“It has always seemed to me,” I remarked to the legal gentleman beside -me, “to be highly unreasonable that by a legal fiction the passenger -should be so identified with the driver. What do you think on that -point?” - -“I quite agree with you,” he returned, “and with my celebrated -namesake, Mr. Smith, and I think that the question why both the -wrong-doers should not be considered liable to a person free from all -blame--not answerable for the acts of either of them--and whom they -have both injured, should be more seriously considered than it has yet -been.”[193] - -“I was glad to see that recently in New Jersey where a man on a street -car was injured by a railway train, the court held that the negligence -of the car-driver could not prevent the man from getting damages, the -driver not being his servant.”[194] - -“By the way,” said my friend, “did you notice how near we came to the -post of the railway crossing sign-board, as the man backed the horses -from the track? I think such posts are a perfect nuisance.” - -“They are not necessarily an indictable nuisance; and as the law -allows them to erect such a sign, they would not be liable for any -accident arising from the posts obstructing part of the road, at least -if they were placed in a reasonably proper manner with a due regard to -all the surrounding circumstances.[195] How the steam came out of the -engine! It is a wonder that the horses were not more frightened!” I -added. - -“Length of days, hard work, and shortness of commons have doubtless -curbed their spirits. I remember on one occasion some railway employees -were endeavoring to put an engine on the track near a crossing, when -my friend Mrs. Stott and another lady drove up in a wagon; they asked -if they might cross. One man said ‘Yes,’ and then laughingly winked -at the others. Mrs. S. got out and led the horse, but before they had -passed over steam was let off through the sides of the locomotive; the -horse got frightened, jumped upon my friend, knocked her down, ran over -her and away. The court held the railway liable for this injury; the -company tried to avoid the verdict by saying that the damages arose -from the unnecessary and wanton act of their servants; but the judges -inclined to the opinion that even if the act had been unnecessary and -wanton, reckless and improper, still as it was done in the course of -the servants’ employment, and for the purpose of promoting it, the -company must bear all the responsibility.[196] Of course, however, -companies are not liable for accidents caused by horses getting -frightened at the smoke, steam, or noise of their trains, when their -servants do nothing amiss.”[197] - -Presently we came to a broad river unspanned by any bridge; we had to -cross, therefore, in an old-fashioned ferry. All dismounted. I noticed -that the little wharf to which the scow was attached was much the worse -for wear, but the nymphs and naiads fell in love with none of us, so no -one broke through, fortunately for the ferryman, for he would have been -liable for any accident.[198] - -“Ha!” said my friend, as the stage gave a great bump in lighting on the -boat. “My Christopher Columbus, you ought to have your flats so that -all drivers and carriages may embark with ease; and that jolt rattled -the ivories in Jehu’s jaw.”[199] - -“Shut up yours, and shell out,” was the laconic response. - -“How deeply seated is habit,” spake Mr. Smith. “The bee makes honey -just as sweet now as when Samson stole it from the lion; and this -pitiless navigator must be paid his fare before we start,[200] just as -old Charon had to receive his obolus ere he would ferry his fleshless -passengers across the gloomy Styx.” - -“You’re too fleshy to lean up agin those thair sticks, unless you want -to take a header backwards,” quoth the ferryman. - -“Oh!” exclaimed Smith, starting inwards as the rail started outwards, -“you ought--you should--you are bound by law to have your boat, -and your slips, and your landing stages, and everything else, safe -and secure, not only for passengers, but also for their horses and -carriages, luggage and merchandise;[201] and you are liable for any -damage happening to a vehicle, or the horses, as soon as they are on -board, although the driver still keeps charge.”[202] - -The latter part of the remark seemed called forth by the coach having -begun to slip backwards towards the water. - -“That thair is open to argyment,” said the boatman. “I guess I knows -my bizness. Some old judges say that a ferryman is not liable unless -the animals be put in his charge;[203] nor where the driver don’t take -care.[204] Nor yet where the critters are so spry that they keant be -trusted on a boat,[205] which I calkerlate them thair nags aint.” - -“Down in Mississippi, a ferryman had to pay for two stage-horses that -jumped overboard, and the court said that as soon as the property is -put on the boat, the boatman has it _primâ facie_ in his charge, and -is responsible for it, unless the owner consents to take exclusive -charge.”[206] - -“I guess I wish we poor chaps could make a prime and fashious charge. I -have to work this old machine mornin’, noon, and night, barring when it -is too windy, or I have gone to roost, as I live away over there.”[207] - -Safely we passed o’er the flood, and safely disembarked and reseated -ourselves in the venerable trap, which with creaks and groans--as -though rheumatic pains shot through every bolt and bar--ascended the -bank. - -Just then we passed a heavy wagon. It was on the wrong side of the -road, and we narrowly escaped collision. I sung out to the farmer -driving it:-- - -“If you want to drive on the wrong side, old fellow, you should take -more care and keep a better lookout,[208] for if an accident had -happened, as we had not ample room to avoid your wheels, you would have -been liable for the injury, being on the wrong side of the road.”[209] - -“Fine day, sir,” was the only response that came, and our driver, with -a grin, told me that the old man was as deaf as a door-nail. - -My companion turned and said to me, “I have often wondered why the -rules of the road should be so different in England from what they are -in America. In the old country the three laws are: First, on meeting, -each party shall bear to the left; second, in passing, the passer shall -do so on the right hand; and, third, in crossing, the driver shall -bear to the left and pass behind the other carriage.[210] In America, -the first rule is the reverse, that is, each party must keep to the -right;[211] but in passing, the foremost person bears to the left, and -the other passes on the off side, and in crossing, the driver bears to -the left hand and passes behind the other carriage--at least so says -Story.”[212] - -“’Tis singular that there should be the difference,” I remarked. - -“But that is not the only point of diversity. In England these rules -apply as well to equestrians as to carriages; while in the United -States a traveller on horseback when meeting another equestrian, or a -carriage, may exercise his own notions of prudence, and turn to the -right or to the left.[213] Of course common consent and immemorial -usage require that a horseman should yield the road to a wagon or other -vehicle.[214] If, however, he is mulish and will not turn out when -he might safely do so, and his steed is injured by a collision, he -is remediless.[215] Again, when one is ahead in America he need not, -unless he has some milk of human nature in his veins, turn out at all -to let a man behind pass, if there is room enough on either side.” - -“But if there is no room, what then?” I queried. - -“Why, then, if it is practicable, the front one must give an equal -portion of the road to his fellow biped behind; and if it is not -practicable, number two must follow in Job’s steps and exercise the -Christian grace of patience, and wait until a more favorable spot is -reached. If number one will not turn out when he can, he is answerable -at law for it. His pursuer, however, must not take the matter into his -own hands and attempt to force his way past.”[216] - -“It is,” I said, “fortunate, however, that these laws of the road are -not inflexible like those of the Medes and Persians of antique days, -but may on occasions be departed from.”[217] - -“Yes; if there is no other carriage in the way, or if the road is -broad enough, one may go on whatever part he fancies:[218] and in the -crowded streets of a city situations and circumstances may frequently -arise, where a deviation will not only be justifiable, but absolutely -necessary.[219] And, of course, one may pass on the left side of a -road, or across it, in order to stop on that side;[220] and conveyances -stationary may be on either side.”[221] - -“I believe that if there was sufficient room for a defendant to pass -without inconvenience, it will not assist him when sued to say that the -plaintiff was on the wrong side.[222] Mr. Angell tells us that if, a -man, not on his own side, suddenly meets another and an injury results, -he who is voluntarily in the wrong must answer for all damages, unless -the other individual could have avoided the accident.[223] And the fact -that the one on the wrong side is not able to turn out will not avail -him as a defence.”[224] - -“Of course not. The injured one has not only to show that the injurer -was on the wrong side, but also that he himself exercised ordinary -precaution to avoid collision.[225] If my share of the road is trenched -upon I cannot recklessly run into the trespasser, and then turn round -and sue for injury arising from my devil-may-care conduct. I may, -of course, try to pass, if passing is reasonably prudent; if not, -I ought to delay and seek redress at law, if damage ensue from my -detention.[226] If a wagon comes along so heavily laden that I cannot -pass it, the driver should stop at a convenient place to let me go -by.[227] A man on foot, or on horseback, or in a light trap, cannot -insist upon a teamster with a heavy load giving up part of the beaten -track, if there be sufficient room to pass without his doing so.”[228] - -“I believe,” I said, “that in winter when the proper road is covered -with snow, and the beaten track is at the side, persons meeting on it -must turn to the right.”[229] - -“If a collision does take place,” said Smith, who talked as if he -had inwardly digested all the reports ever published, “through a -defendant’s fault, the plaintiff may recover against him damages -commensurate with the whole of the injury sustained.[230] And, -by-the-by, I noticed the other day, that the laws of the road do not -apply to buildings which are traversing the highway.”[231] - -“I should think not,” I replied. - -A pause for a few minutes took place. Better far for me if it had -never been broken on that day. But it was ordained otherwise. - -“Well,” said Mr. Smith at length, “we have had a very pleasant drive -together, and a very interesting conversation. I have enjoyed myself -very much, for it is not very often that one can meet on the top of -a coach, in this Ultima Thule of civilization, with a man who can -discourse so learnedly on the law of carriers as you have done. But I -regret to say that I must leave you at this little tavern, where the -stage stops for dinner.” - -“I share your regret fully, and I, too, have thoroughly enjoyed myself, -and even my bruised toe has forgotten to twinge and throb during our -converse.” - -“By the way,” added Smith, “I find I have forgotten, or lost, my purse; -could you kindly lend me a V., for I have my fare to pay.” - -“Oh, certainly,” I replied, with apparent pleasure, but with inward -heaviness, for alas - - I could plead, expound and argue, - Fire with wit, with wisdom glow; - But one word for ever failed me, - Source of all my pain and woe; - Luckless man! I could not say it, - Could not--dare not--answer: No! - -The transfer of the Five was speedily made, and at that moment the -driver reined in his old horses and drew up at the door of a country -inn. Quickly my debtor jumped off the coach; with his bag swinging in -his hand, a nod to me and a low salaam to the ladies, he was walking -away, when the driver called after him:-- - -“I say, mister, where’s that ere fare?” - -“Ah! that’s a trifle that quite escaped my memory,” responded my -quondam comrade. “Never mind, however, you will have a lien upon my -trunk in the meantime.”[232] - -“Where’s your box?” queried Jehu. - -“Oh! that’s a question more easily asked than answered. It is -where many a more valuable thing is, _in nubibus_, or _in partibus -infidelium_. However, it matters little, because you could not detain -me for the paltry fare, nor the clothes that I have on, nor even this -bag that I have in my manual possession.[233] So by-by to you.” - -And away he went, leaving coachee pouring forth his vials of wrath in -epithets and expletives strong, if not polite. - -“Alas,” thought I to myself, “it is such sharp and improper -conduct that makes men wish, like Shakespeare’s Dick, ‘to kill all -the lawyers;’ makes them abuse those who are (or should be) the -counsellors, secretaries, interpreters, and servants of Justice--the -lady and queen of all moral virtues--and apply to the members of our -profession the language of Congreve of old: ‘There’s many a cranny and -leak unstopped in your conscience. If so be one had a pump in your -bosom, we should discover a foul hold. They say a witch will sail -in a sieve, but the devil could not venture aboard your conscience.’ -But I can flatter myself that an honest lawyer, like myself, ‘is the -life-guard of people’s fortunes; the best collateral security for -their estate; a trusty pilot to steer one through the dangerous and, -oftentimes, inevitable ocean of contention; a true priest of justice, -that neither sacrifices to fraud or covetousness; and one who can make -people honest that are sermon proof.’ He is one who can - - Make the cunning artless, tame the rude, - Subdue the haughty, shake the undaunted soul; - Yea, put a bridle in the lion’s mouth, - And lead him forth as a domestic cur.” - - -FOOTNOTES: - -[180] Nicholls _v._ Gt. Western Rw., 27 U. C. Q. B. 393; Boggs _v._ Gt. -Western Rw. Co., 23 U. C. C. P. 573; Ellis _v._ Gt. Western Rw. Co., L. -R., 9 C. P. 551; Johnston _v._ Northern Rw. Co., 34 U. C. Q. B. 432; -Penn. Rw. Co. _v._ Beale, 9 Can. L. J. (N. S.), 298. - -[181] Stubley _v._ London and Northwestern Rw., L. R. 1 Ex. 16; -questioning Bilbee _v._ London, B., & S. C. Rw. Co., 18 C. B. (N. S.), -584. - -[182] Winckler _v._ Gt. Western Rw., 18 U. C. C. P. 261; Dascomb _v._ -Buffalo & State Line R. R. Co., 27 Barb. 221; Mackey _v._ N. Y. & C. R. -R. Co., 27 Barb. 528. - -[183] Pittsburg, F. W., & C. Rw. _v._ Dunn, 56 Penn. St. 280; Balt. & -Ohio R. R. _v._ Breinig, 25 Md. 378; Skelton _v._ L. & N. W. Rw., L. -R., 2 C. P. 631; Johnston _v._ Northern Rw., 34 U. C. Q. B. 439; Penn. -R. _v._ Ackerman, 74 Penn. St. 265. - -[184] Havens _v._ Erie Rw., 41 N. Y. 296; Grippen _v._ N. Y. C., 40 -N. Y. 34; Parker _v._ Adams, 12 Met. 415; Johnston _v._ Northern Rw., -_supra_; Bellefontaine Rw. _v._ Hunter, 33 Ind. 335; Miller _v._ G. T. -R., 25 C. P. (Ont.) 389. - -[185] Galena & Ch. Rw. _v._ Loomis, 13 Ill. 548. - -[186] Hart _v._ Erie Rw. Co., 3 Albany L. J. 312. See also Tabor _v._ -Mo. Valley Rw., 46 Mo. 353; S. C., 2 Am. Rep. 270. - -[187] Sneesby _v._ Lancashire & Y., etc., 1 Q. B. Div. 42. - -[188] Tyson _v._ G. T. Rw., 20 U. C. Q. B. 256. See also, Ernst _v._ -Hudson River Rw., 35 N. Y. 9. - -[189] Winckler _v._ Gt. Western Rw., 18 U. C. C. P. 261; Nicholls _v._ -Gt. Western Rw., 27 Q. B. U. C. 382. - -[190] Stubley _v._ London & N. W. Rw., L. R., 1 Ex. 13. - -[191] Thorogood _v._ Bryan, 8 C. B. 115, cited Id. 131; Rigby _v._ -Hewitt, 5 Ex. 240; Greenland _v._ Chaplin, Ib. 247; Armstrong _v._ -Lancashire & Y. Rw., L. R., 10 Ex. 47. - -[192] Maule, J., in Thorogood _v._ Bryan, 8 C. B. 131. - -[193] Note to Ashby _v._ White, 1 Smith’s Leading Cases (6th ed.), 356. - -[194] Bennett _v._ N. Y., etc., 36 N. J. 225. - -[195] Soule _v._ G. T. R., 21 C. P. (Ont.), 308. - -[196] Stott _v._ G. T. R., 24 U. C. C. P. (Ont.), 347; Limpus _v._ -London Omnibus Co., 1 H. & C. 526. - -[197] Burton _v._ Phila., etc., R. R. Co., 4 Harring. (Del.), 252. - -[198] Pate _v._ Henry, 5 Stew. & Port. 101. - -[199] Miles _v._ James, 1 McCord, 157. - -[200] Pain _v._ Patrick, 3 Mod. 289. - -[201] Willoughby _v._ Horridge, 12 C. B. 751; Addison on Torts, 493. - -[202] Cohen _v._ Hume, 1 McCord, 439; Fisher _v._ Clisbee, 12 Ill. 344. - -[203] White _v_. Winnisimmet Co., 7 Cush. 155. - -[204] Wilson _v._ Hamilton, 4 Ohio St. 722. - -[205] Fisher _v._ Clisbee, _supra_. - -[206] Powell _v._ Mills, 37 Miss. 691. - -[207] Pate _v._ Henry, 5 Stew. & P. 101. - -[208] Pluckwell _v._ Wilson, 5 C. & P. 375. - -[209] Chaplin _v._ Hawes, 3 C. & P. 554. - -[210] Wayde _v._ Carr, 2 Dowl. & Ry. 255. - -[211] Kennard _v._ Benton, 25 Maine, 39; and in Ontario, by Con. St. U. -C. ch. 56, in meeting, conveyances must turn to right, and so when one -is overtaken by another. - -[212] Story on Bail. § 599. - -[213] Dudley _v._ Bolles, 24 Wend. 465. - -[214] Washburn _v._ Tracy, 2 D. Chip. 128. - -[215] Beach _v._ Parmeter, 23 Penn. St. 196; Grier _v._ Sampson, 27 Pa. -183. - -[216] Angell on Highways, § 340. - -[217] Wayde _v._ Carr, 2 Dow. & Ry. 255. - -[218] Aston _v._ Heaven, 2 Esp. 533; Palmer _v._ Barker, 11 Me. 338.; -Foster _v._ Goddard, 40 Me. 64. - -[219] Turley _v._ Thomas, 8 C. & P. 103. - -[220] Angell on Highways, § 336. - -[221] Johnson _v._ Small, 5 B. Mon. (Ken.), 25. - -[222] Clay _v._ Wood, 5 Esp. 44; Parker _v._ Adams, 12 Metc. 415; -Kennard _v._ Burton, 11 Shepley (Me.), 39. - -[223] Angell, § 337. - -[224] Brooks _v._ Hart, 14 N. H. 307. - -[225] Parker _v._ Adams, _supra_. - -[226] Brooks _v._ Hart, 14 N. H. 307. - -[227] Kennard _v._ Burton, 25 Me. 39. - -[228] Grier _v._ Sampson, 27 Penn. St. 183. - -[229] Jaquith _v._ Richardson, 8 Met. 213; Smith _v._ Dygert, 12 Barb. -613. - -[230] Gilberton _v._ Richardson, 5 C. B. 502. - -[231] Graves _v._ Shattuck, 35 N. H. 257. - -[232] Wolf _v._ Summers, 2 Camp. 631. - -[233] Sunbolf _v._ Alford, 3 M. & W. 248. - - - - - CHAPTER VI. - - DINING, RAINING, LOSING, AND ENDING. - - Must wait at Stopping-places.--Place booked taken at any - Time.--Falling in ascending.--Drenched with Rain.--Coachmen are - Common Carriers, and liable as such.--Loss of Money.--Loss of - Luggage.--Dangerous Short Cut.--Bridges.--Safe Arrival. - - -The driver, annoyed at the loss of his fare, said he would drive -ahead at once and not wait, as he usually did at this place, for his -passengers to take refreshments, but as my wife was hungry and the old -maids thirsty, I insisted upon his remaining; for a carrier has no -right to deviate from established usages to gratify his own whims and -fancies.[234] While we were partaking of a cold collation, portions -of which, doubtless, had done duty on several former occasions, a -gentleman arrived at the inn, and from his conversation with the driver -I quickly perceived that he had paid his fare for the whole way from -town to our journey’s end, and that he now intended to take his seat, -as he clearly had a right to do.[235] He, too, was booked for an inside -place, and protested strongly because sufficient room had not been -left for him, saying that as more than the legal number were already -on board, he would not get on but would sue the proprietor for all -expenses he might be put to in performing the remainder of his journey -by another conveyance.[236] - -“I took my place,” he exclaimed with emphasis, “and now you are going -to try to squeeze six people into an infernal box that only holds -five. I’ll take a post-chaise and bring an action for all the expenses -incurred. I’ve paid my fare. It won’t do; I told the clerk when I took -my place that it would not do. I know these things have been done. I -know they are done every day; but _I_ never was done, and I never will -be. Those who know me best know it; crush me.”[237] - -The son of Nimshi tried to smooth down matters, but in vain; and the -irascible gent went off in high dudgeon; whereat I rejoiced. - -Just as we were starting, an old woman approached, and after some -chaffering agreed with the driver as to the sum for which he would -carry her to the next village, and began to mount. Before she was up -the horses started, and she was thrown to the ground and injured so -much that she could not come with us. I endeavored to apply some balm -by informing her that she had better sue the owner of the stage; for, -she, being a passenger as soon as the contract was made, he was liable -to her for the negligence of his man.[238] - -We had not gone far, after our refreshments, before the sky grew -overcast, the wind arose, heavy clouds began to send across the sky, -distant mutterings of thunder grew more and more audible, rolling, -rumbling, rattling, nearer and nearer, the heavens were wrapt in -gloom, through which, ever and anon, the lightning flashed vividly. -Quickly the thunderstorm was upon us, the rain descended first in -large heavy drops, then in a perfect deluge; the sky seemed on fire -with electric flashes, darting hither and thither like fiery, flying -serpents. In vain the coachee whipped up his wearied horses and made -their very bones to rattle, striving to gain shelter from the pitiless -storm. Before protection could be gained we were all drenched to the -epidermis, even those within did not escape, for the old stage leaked -like a sieve and let in the flood at every part. (My wife declared -afterwards that she had read that in the days of Henry II., of France, -there were three, and only three, coaches in existence, one belonging -to Catherine de Medicis, another to the fair, but frail, Diana of -Poictiers, and the third to René de Laval, a noble seigneur, and that -she verily believed that this was the one owned by, the fat old René, -so weak, so frail, so rickety, was the old antediluvian monster; in -fact, she remarked, there was nothing strong about the entire concern -except the smell!) - -But, after all, it was only a thunderstorm, and ere very long its -fury was overpassed, the sun emerged from behind the murky clouds, -and we all steamed away beneath its fiery rays like small portable -steam-engines. Far worse, however, than being thoroughly damped -ourselves, the heavy down-pour had penetrated our trunks and bags, -playing the mischief with the things therein, for the carrier had not -provided tarpaulins, or cart clothes and such necessary coverings to -protect the baggage from the rain, as he was bound to do.[239] The -thoughts of the damages which I might recover, alone kept me from -pouring forth my ire upon the coachman’s devoted head. - -Of course, proprietors of stage-coaches,[240] or mail-coaches,[241] who -hold themselves out as carriers of goods, as well as of passengers, are -liable as common carriers, and responsible at common law for all damage -and loss to goods during the carriage from what cause soever arising, -save only the act of God; and this liability extends to the luggage of -passengers, as well as to the goods of strangers, although no specific -charge be made for the luggage.[242] In England (by the Railway Clauses -Act) railways, stage-coach proprietors, and other common carriers of -passengers, their baggage and freight, are put upon precisely the -same ground, both as to liability and as to any protection, privilege -or exemption; and the same rule obtains in the great republic, except, -perhaps, that inasmuch as transportation by rail is infinitely more -perilous, a proportionate degree of watchfulness is demanded of -carriers thereby. Care and diligence are relative terms, and the degree -of care and watchfulness is to be increased in proportion to the hazard -of the business.[243] - -The thorough damping which he had received seemed to have had a -mollifying effect upon our knight of the reins, and when I ventured to -address him on the subject of his master’s liability for loss or damage -to luggage, I found him quite thawed out, in fact, communicative. - -“Wal,” said he, “I knows summat about that; but I rather guess you’d -find yourself mistook if you thought him liable for all losses, and put -a lot of money in your trunk, and didn’t tell on it, and had it lost.” - -“Why,” queried I, “what about that?” - -“Not much, only this: a chap one time thought so as how he’d come a -sharp dodge on a coachman, so he just put $11,250 in his old trunk and -said nothing about it; and when they got to their journey’s end the box -was nowheres; the man tried to make the owner of the stage pay, but the -judge decided he could not.” - -“Who told you all that?” - -“Wal, stranger, I heerd it in rather a roundabout way; my master told -me, another man told him, and an angel told the other man.”[244] - -“Ah, indeed!” I exclaimed, “that is undoubted authority.” - -“Another time there was a _long fellow_ put a £50 note in his bag among -his old duds. In getting on the stage he gave his bag to the driver, -who lost it; he sued the master to court, but the jury only paid him -for his old clothes.”[245] - -“There must have been some stage-coachman on that jury,” I said. - -“Like enough; there’s a deal of them scattered around every civilized -country.” - -“I suppose you know,” I added, “that if you were to carry parcels for -your own particular profit, your master would not be liable for the -loss of them,[246] unless, indeed, he paid you less wages, because of -the opportunity thus afforded you of making small sums.”[247] - -“I guess there’s no chance of my makin’ a fortun’, along this ere -road that ere way. Folks think I ought to carry their traps for -nothing. Look ye here, mister, how would it be ’sposing a man took his -portmantee with him, and kept his own eye on til it, and it was lost -after all.” - -“Oh, it’s clear the owner of the coach would be liable.[248] But if a -gentleman keep, for instance, his overcoat wholly in his own custody -and possession, and does not actually deliver it to the carrier, -the latter cannot reasonably be held liable for the loss[249] if it -disappears.” - -(P.S. and N.B. Any person or persons desirous of becoming thoroughly -posted upon the all important question of the liability of carriers for -the loss of baggage, will find it to their advantage to consult chapter -fifteen of this my book.) - -“I say, mister, had I better take a short cut over that ere bridge, -which is so rotten that I calkerlate it will go down mighty soon with -a tremendous whack into the water below, or go away round a couple of -miles to the stone bridge?” queried the driver. - -“Well,” I replied, “I think you had better go round, for the law saith, -if a common carrier--which you decidedly are in every sense of the -word--goes by ways that be dangerous, or drive by night, or in other -inconvenient times, or if he overcharge a horse, whereby he falleth -into water or otherwise, so that the stuff is hurt or impaired, then he -shall be charged for his misdemeanor.”[250] - -“But why does not the corporation repair the bridge?” I added. - -“Oh, they don’t own it; old Squire Squaretoes built it and owns it; -but he lets folks cross it if they choose,” replied the man. - -“Then it is clear we would have no one to sue if any accident happened -through its defective state.”[251] - -I trust that my readers (if I have any) will understand that a town is -not liable for injuries caused by a bridge being out of repair, if it -has become so, suddenly and unexpectedly, by reason of a freshet, and -sufficient time has not elapsed to enable the authorities to repair it, -or to guard travellers against the danger;[252] but if the chairman of -the board of supervisors has had notice of the defect, and no proper -precautions are taken to guard against accidents, the town will be held -liable for negligence.[253] - -Quickly now we drove along the bank of a little babbling, bubbling -river, which “like a silver thread with sunsets strung upon it thick -like pearls” wound in and out, and round about, doubling the distance -we had to travel; but I was quite content and sought not to descend -from my high perch, for the breeze was - - “‘Sweet as Sabæan odors from the shores - Of Araby the blest;’” - -and the woods near by had many verdurous glooms and winding mossy ways, -to charm the eye, and I had ever loved to gaze upon - - “groups of lovely elm-trees bending - Languidly their leaf-crowned heads, - Like youthful maids, when sleep descending, - Warns them to their silken beds.” - -On and on we clattered along the rough and stony road, rattling and -jolting, till a loud and sharp “Toot-toot-toot,” with a long clear -flourish “that warbled away in an acoustic ringlet” from the driver’s -horn, announced the fact that that day’s work was done; that our -journey was complete, and we were safe in the little village of Ayr. - -As our journey beyond this point was upon the trackless deep, I will -here say nothing about it, save that we were while on board the -steamboats neither blown up nor drowned. - - -FOOTNOTES: - -[234] Chitty on Carriers, 253; Story on Bailments, § 597. - -[235] Ker _v._ Mountain, 1 Esp. 27. - -[236] Chitty on Carriers, 252. - -[237] See Mr. Dowler’s remarks in Pickwick. - -[238] Brien _v._ Bennett, 8 C. & P. 724; Lygo _v._ Newbold, 9 Ex. 302. - -[239] Webb _v._ Page, 6 M. & G. 204; Walker _v._ Jackson, 10 M. & W. -168; Philleo _v._ Sandford, 17 Texas, 227. - -[240] Clark _v._ Gray, 4 Esp. 177; Lovett _v._ Hobbs, 2 Shower, 127; -Hutton _v._ Bolton, 1 H. Bla. 299 n.; Dwight _v._ Brewster, 1 Pickering -(Mass.), 50; Jones _v._ Voorhees, 10 Ohio, 145. - -[241] White _v._ Bolton, Peake, N. P. 113. - -[242] Robinson _v._ Dunmore, 2 B. & P. 416. - -[243] Commonwealth _v._ Power, 7 Met. 601; Jencks _v._ Coleman, 2 -Sumner. - -[244] Angell on Carriers, 262. - -[245] Miles _v._ Cottle, 4 M. & P. 630; 6 Bing. 743; and on this point -see chapter 8. - -[246] Butter _v._ Basing, 2 C. & P. 614. - -[247] Dwight _v._ Brewster, 1 Pick. (Mass.), 50. - -[248] Robinson _v._ Dunmore, 2 B. & P. 419; Brooke _v._ Pickwick, 4 -Bing. 218. - -[249] Tower _v._ Utica & Sch. Rw., 7 Hill, 47. - -[250] Doctor & Stud., Dial. 2d, p. 224. - -[251] Gautret _v._ Egerton, L. R. 2 C. P. 371; State _v._ Seawell, 3 -Hawks, 193. - -[252] Jaquish _v._ Ithaca, 36 Wis. 108; Ward _v._ Jefferson, 24 Wis. -342. - -[253] Ibid. - - - - - CHAPTER VII. - - STATIONS AND STARTING. - - Meditations on Crossings.--Bell or Whistle.--People on Track.--Access - to Stations.--Slippery Ice.--Checks on Trunks.--Notice of Arrivals - and Departures.--Trains late as usual.--Must keep Time.--Damages, - Damages.--Proof.--Ill fared Welfare.--Waiting-rooms not - Smoke-houses.--Charge of the Iron Horse.--Tripped up. - - -In course of time I had to go off on business, and, notwithstanding the -unhappy demise of my wife’s step-mother’s brother’s wife’s mother’s -aunt, I resolved to patronize the cars, and having long before -settled the insurance question to my own satisfaction, I purchased -both a railway and an accident ticket, and as the proper hour for the -departure of my train approached, started bag in hand, being minded to -go afoot to the station. “As I walked by myself, I talked to myself and -myself replied to me, and the questions myself then put to myself with -the answers, I give thee,” my would-be-wise reader. - -Coming upon the railroad where it ran close to a house which hid the -line on one side completely from view, I was rather startled by a -freight-train dashing past within a few feet of my nose, and I asked -myself: “Should not a bell have been rung?” and I replied: “Yes, -wherever a train crosses a highway there the bell should be rung or -the whistle sounded;[254] and no engine should have gone at such a -speed.” “Should not the company place a watchman at a crossing to warn -pedestrians of the approach of trains?” the answer that came was, “I -fancy not, for _primâ facie_, a foot-passenger crossing a railway is -bound to look out for his own safety;[255] just as it is his duty to -use due care and caution in crossing a street, so as not recklessly to -get among the carriages.”[256] There is, it appears, no general duty -devolving upon railway companies to place watchmen at such places, but -it depends upon the particular circumstances of each individual case as -to whether the omission of such a precaution amounts to negligence or -not.[257] If, however, one is employed, his neglect of duty will make -the company liable.[258] - -But then this crossing, I thought, is peculiarly dangerous, the line -being hid as it is! In such a case the mere occurrence of an accident -to one crossing will be evidence of negligence.[259] If a railroad -unnecessarily crosses a highway in such a manner and place that -travellers can neither see nor hear an approaching train until too -late to save themselves; or if a company erect a building so as to -shut off the view, they will be liable for collisions, in the absence -of negligence on the part of the injured ones.[260] I remember that -once, on a certain foggy morning in the land of fogs, a man took the -trouble to look up the line and to look down the line, but owing to the -dimness of the light failed to see a train coming; the engine never -whistled, the man was injured and the company was found guilty of -negligence.[261] Where persons are in the habit of crossing a line at -a particular place, though there is no right of way there, still the -responsibility of taking reasonable precautions in their use of such -place is thrown upon the company.[262] - -The omission to give the signals required by statute, such as, ringing -the bell or sounding the whistle, constitutes a _primâ facie_ case of -negligence; still, to make the company liable for damages, the injury -must be the result of the want of the signal, and the onus of showing -this will not be upon the company, but upon the plaintiff.[263] - -The public has a right to presume that if the proper warnings are not -given at a crossing, that the speed of the train will be reduced; if -not, to prevent an injured one getting damage it must be proved that -he was rash. The company will be liable if he kept a proper lookout, -though he was incautious in going on the track.[264] - -Every one attempting to cross a railroad should do it with his eyes -open. He should listen for the signals, notice all the signs that may -be put up as warnings, and look up and down the road.[265] If, however, -he is driving across, it does not appear that he is bound to get out -of his carriage, or even stop for the purpose of listening.[266] If, -by the use of one’s optics, the train could have been perceived, it is -presumed in case of a collision, that the man hurt did not look, or did -not heed, and so under ordinary circumstances, the company will not -be liable.[267] Contributory negligence on the part of the afflicted -excuses the railroad, whether the proper signals have been given or -not, or whether the company is guilty of any other negligence or -not.[268] - -When a carriage-way crossed a line on the level, and the gates on the -down side of the line being open, young Wanless, with some other boys, -entered on the railway at the time when a train on the up side was -passing, intending to cross as soon as the train had passed; meanwhile -another train, on the down side, which he could have seen if he had -looked, knocked him down and injured him. The Court of Queen’s Bench -and the House of Lords both held that the company were guilty of -negligence;[269] and that having the gate open was an intimation to -the public that the line was clear. However, in New York State it was -decided that a similar breach of duty only gave a right to the penalty -affixed thereto, and was not evidence of negligence:[270] and that one -must keep a lookout, even though no danger signal is given.[271] On the -other hand, other American cases hold that one has a right to expect a -company to do its duty, and give the proper notices and warnings.[272] - -When on the point of crossing a track about the time a train is due one -should not bundle up his head, so as to impair the sense of hearing, -and then go straight ahead without looking out for the cars. If a man -does so and is made mince-meat of, he has only himself to blame, even -though neither bell nor whistle sounded.[273] One must not even hold -his hat on with his hand on a rainy, blowy, stormy, snowy night, if he -is thereby prevented seeing an approaching train.[274] - -A railway company is not bound to use the same amount of care towards -strangers who voluntarily and wilfully go on their track as they owe -towards their passengers. This, Mr. Brand found out after he had his -legs cut off while walking on the track through the city.[275] If one -is unlawfully on the track, or contributes to the injury by his own -carelessness or negligence, yet if the injury could have been avoided -by the company’s servants using ordinary care, the railway is liable -for damages.[276] An engine driver, however, is not bound to slacken -speed when he sees before him, on the track, one whom he may reasonably -suppose can take care of himself, until he sees that otherwise the man, -woman, or child will be run over; but it is his duty to check the train -so soon as he spies a very young child, or apparently helpless person -in the way; if he does not do so and a collision ensues, the company -will be liable for the consequences.[277] - -A company is bound so to lay their line at a crossing that no injury -will be done by reason of the rails being above the level of the -road.[278] - -Near the station and forming one way of access thereto is a bridge, -said to be in a dangerous state, and across this I saw several persons -hurrying, but I preferred to go round by a longer way, for although it -has been decided that a company is liable for the death of a passenger -through the faulty construction of a bridge erected by them for the -more convenient access to the station, when there is a safe one about -one hundred yards further off which the unfortunate deceased might have -used,[279] still I considered discretion the better part of valor and -chose keeping sound bones in a whole skin to my wife enjoying plenty -and prosperity out of my life insurances. Besides, I recollected that -Mr. Justice Clesby had once said, that where a passenger having full -knowledge of the fact, still preferred using a dangerous way and in -consequence was injured, it would seem that such a foolish body would -have no ground of complaint, on the principle of the old maxim _volenti -non fit injuria_.[280] What risks men will run to save a few minutes or -a few steps; verily well saith the poet,-- - - “Of all the creatures that fly in the air - Swim in the sea, or tread earth so fair, - From Paris and Rome to Peru and Japan, - The most foolish beast, as I think, is man.” - -On entering the station-yard I found engines puffing and snorting, -backing and switching on every side, and really it was at considerable -danger of my journey being summarily put an end to ere well commenced, -that I made my way to the platform. This rather annoyed me and ruffled -the habitual serenity of my temper (and the serenity of the most -serene would be tried by a locomotive spirting and squirting out a -jet of steam at one’s nether garments), for it is the duty of railway -companies to take all reasonable care to keep their premises in such a -state that those whom they invite there (and they invite all who may -desire to be carried to any place whither the line runs) will not be -unduly exposed to danger.[281] But they need not go so far as to put a -hand-rail upon a stairway for unsteady folks to steady themselves with, -where the stair is protected on either side by walls; and they may put -brass on the steps instead of lead, although it is more slippery.[282] - -I had scarcely stepped on to the platform when one foot slipped from -under me, and down with a whack I descended upon the back of my head; -my carpet-bag, too, fell with a crash, telling of ruin to some valuable -therein contained. Up rose I in wrath and found that a strip of ice had -been the cause of my discomfiture, and I registered an oath on high -that the company should answer to me in solid gold for the damages -I had sustained; for I knew of one Shepherd, who having fallen on a -slippery place, while he tramped up and down the platform waiting for a -train, recovered a goodly sum from the company; and Martin, B., said, -railway servants ought to be alert during cold weather to see whether -there is ice upon the platform, and to remove it, or make it safe by -sanding it, or otherwise, if it is there.[283] - -On I strode in ire--for I saw some girls snickering at me--to where the -baggage-master was checking the luggage. - -“Check this,” I exclaimed. - -“Take it into the car with you,” he replied. - -“I won’t; you must check it; there’s a handle,” I returned. - -“I won’t; handle be hanged; you must take it,” he retorted. - -“All right,” I answered, inwardly resolving that as a check had been -refused me when demanded, the company should pay me the penalty of -eight dollars, as well as the costs of the action which I should -bring against them for it, and that I would insist upon the conductor -in charge of the train refunding me the fare that I had paid for my -ticket.[2] I was sorry now that I had bought the ticket in advance, -for under the circumstances they would have had no right to collect or -receive from me any toll or fare.[284] - -I was determined to teach railway companies their duties, and -baggage-masters are far too fond of refusing to check small parcels or -bags; and at way stations, in their wisdom, even decline sometimes -to check large trunks, although the law of this Canada of ours says, -“Checks shall be affixed by an agent or servant to every parcel of -baggage having a handle, loop or fixture of any kind thereupon (though -what may be included in the latter term goodness only knows), and a -duplicate shall be given to the passenger delivering the same.”[285] - -It was not many minutes before I found cause of action number _three_ -against the respectable railway company to whose tender mercies I was -about to commit my precious self. The law directs that “the trains -shall be started and run at regular hours to be fixed by public -notice,”[286] but most locomotives--their drivers and conductors--treat -that clause with a contempt truly philosophical. The train by which -I desired to embark was overdue for half an hour, according to the -time-table which hung mockingly on the wall, so I looked about me to -see if there had been “put up on the outside of the station-house over -the platform of the station in some conspicuous place, a written or -printed notice signed by the station-master, stating to the best of -his knowledge and belief the time when such over-due train might be -expected to reach the station,” as it was the duty of the company to -do. Of course, no such notice was visible, such enactments being too -often deemed effete from the very day they appear on the statute book, -so I still further comforted and consoled my wounded feelings by the -thought that for this neglect or omission they were liable to an action -at my suit, in which full costs might be recovered[287] (the latter was -an object of importance just now). - -I now retired into the waiting-room to ponder over the business that -had thus unexpectedly turned up. I knew that few men were bold enough -to fight a great railway company on any question, and especially one -involving a small amount, and that as a result of this railways have -been virtually exempt from the penalties attaching to many breaches of -duty and of contract which they are daily committing; but I determined -to sacrifice myself for the good of my fellows. I was eager, too, to -see my name figuring in the reports. - -I also now began to reflect that if the train was much later, I would -miss my appointments, and then cause of action number _four_ would -accrue. For it is as clear as daylight that if a railway company -publishes or authorizes the publication of a time-table, representing -that a train will start at a particular hour for a particular place, -or arrive at a particular hour, and through negligence no train is -prepared or arrives, the company is responsible in damages to all -persons who have acted upon the faith of the representation, and -have been deceived and put to expense, and have sustained damage -thereby;[288] but if they give proper notice they will not be liable -for any necessary delay.[289] A company announced that their trains -would be punctual as far as possible; though, they said, they did not -undertake that they would run exactly according to the time-tables, -and that they would not be liable for any loss or damage arising from -unpunctuality; the court, however, held, that a delay of twenty-seven -minutes _en route_ between Liverpool and Leeds was evidence of -negligence or want of reasonable efforts to be punctual.[290] A -notice that a company will not be responsible for deviations from the -time-tables, unless the detentions are caused by the wilful neglect -of their employees, is practically invalid.[291] The company make a -continuous representation whilst they continue to hold out printed -or written papers as being their time-tables, and they thereby make -a public profession and representation that they will exercise their -vocation of common carriers, and dispatch passengers or goods, as the -case may be, to certain specified places at or about the time named in -such tables; and if they fail to do so they commit a breach of their -duty as common carriers, and are guilty of a fraudulent representation, -which may be the foundation of an action for deceit by any one who, -relying on the representation, tenders himself or his goods for -conveyance at the appointed time, and finds there is no train about to -start.[292] - -Though neither time-table nor advertisement is an actual warranty for -the arrival and departure of trains at the time named, still companies -are unquestionably liable for any want of punctuality which they could -have avoided by the use of due care or skill; nor can they plead any -excuse, the existence of which was known to them when the tables were -published.[293] And when there has been a change of time, due care -should be used in notifying the public.[294] - -I also ran the risk of missing the connection at B.; but I remembered -that once upon a time a tailor going down into the country to measure -his customers, in consequence of the train not having reached a -junction at the time advertised, missed his connection and had to spend -the night at the junction and pay extra fare the next morning; he sued -the company and recovered the amount of his hotel expenses and the -extra fare, but not for damages sustained by not reaching his customers -at the appointed time [but this rule seems to be almost equivalent -to a denial of all beneficial redress in such cases.[295]] The chief -baron in giving judgment, stated that as a rule, generally in actions -upon contracts the plaintiff is entitled to recover whatever damage -naturally results from the breach of the contract, but not damages for -the disappointment of mind occasioned by the breach of contract.[296] -When in consequence of the company’s negligence M. Le Blanche reached -Leeds too late for the Scarborough train, and he took a special train -whereby he reached Scarborough an hour earlier than if he had waited -for the next regular train, the court considered that although he had -no special business at S., yet still he was entitled to recover from -the railroad authorities the cost of the special train. But a man -should not take a special, hoping to have the expense recouped him, -unless it is a reasonable thing to do under the circumstances.[297] -In Manchester (England), a music teacher recovered against a railway -company five shillings which he had had to pay for cab-hire, the train -through delays having failed to make certain connections.[298] If a -party bound to do a certain thing does not do so, the other party may -do it for him as reasonably and nearly as may be, and charge him for -the reasonable expenses incurred in doing so. A company cannot escape -damages for its failure to carry a passenger with sufficient dispatch -by the fact that the delay was the wilful act of the conductor in -charge of the train.[299] It must clearly appear that the damages were -sustained without any fault on the part of the traveller, and in spite -of his utmost efforts to avoid them.[300] - -The mere production of a ticket, however, is not sufficient evidence of -a contract to carry a passenger to a certain place within a given time, -as one Hurst discovered when he sued for various expenses and losses -sustained through missing a certain train in consequence of delay in -starting; the time-table must be produced to prove the contract.[301] -And as I knew that to prove that the table was issued by authority I -would have to show either that it was bought at one of the company’s -stations, or at one of their recognized receiving offices, or that -it was posted up in some office or place where the advertisements -of the company were usually placed,[302] I started off on a tour -of investigation to see if I could pick up the desired article, or -evidence that would answer my purpose, keeping in mind how ill fared my -friend, Mr. Welfare. He once innocently inquired of a railway porter -when the train would be in, and being referred by the official to a -time-table hanging upon the wall, he went to consult it; while doing -so, down tumbled, through a hole in the roof, a heavy plank and a roll -of zinc, and smote Mr. Welfare on the neck, doing him grievous bodily -harm; glancing upwards, the poor stricken one beheld the legs of a -man upon the roof. Yet for the damages done the company was held not -liable, as for aught that my friend showed at the trial the man might -have been the servant of a contractor employed to mend the roof, or the -misfortune might have been the result of a pure accident.[303] So the -sufferings of my friend served but to point a moral--Beware!--and to -adorn a volume of reports. - -But to return from this digression anent my friend, to the topic on -which I was musing. Draper, C. J., in one case, held that a time-table -could not be treated as a part of the contract, but amounted to a -representation only; and that to recover damages one would have to -show that he bought his ticket before the time specified for the train -leaving, and not merely before the arrival of the train, for if that -were after the time specified, the would-be passenger would know as -well as the company that the time-table had been departed from.[304] - -While I was thus deeply ruminating, an old friend appeared,--a Q. -C., of high standing, at the bar of a neighboring city,--and we went -outside to enjoy a chat and weed while waiting for the train. Seeing -an elderly female turn up her nose as a whiff of smoke tickled her -nostrils, as if it were in very deed a blast from the lower regions, as -King James said it was, my friend remarked:-- - -“Did you see that decision of Dillon, C. J., where he held that a woman -who found the waiting-room unfit for her occupation--tobacco and other -impurities being offensive to her delicate nerves--and so attempted -to enter the cars which had not as yet come up to the platform, and -was injured by the giving way of the platform steps, was entitled to -recover?”[305] - -“No,” I replied. - -“He ruled that it is the duty of railway passenger carriers to provide -comfortable rooms for the accommodation of passengers while waiting -at the stations, and to enforce such regulations in regard to smoking -therein as to enable persons to occupy them in reasonable comfort.” - -“A very good decision for the ladies and those who have to wait hour -after hour in a dirty room for a train ages behind its time.” - -“Still I think it is pushing the doctrine of the liability of companies -rather far.” - -“Yes,” I returned, “and rather in the teeth of the dictum of Mr. -Justice Hannan, in Siner _v._ Great Western,[306] where he said he -thought that juries took an exaggerated view of the duties of railway -companies; that the companies have done so much for the comfort and -convenience of travellers that it is now made the subject of complaint -if the highest degree of luxurious care is not attained in all their -arrangements.” - -“His is a much more sensible view of the case,” said Smith, who held -some railway shares, “and one more likely to produce dividends for -unfortunate stock-holders. If people avail themselves of the benefits -of railway travellers, they should make some allowances. Ah! look at -our fair friend!” - -She was at the far end of the platform, and an engine attached to a -freight train seemed to be rushing straight at her; she turned and -fled, with a scream, to avoid the charge of the iron horse, and in -her hurry tripped over a barrow and fell prostrate. The career of the -locomotive was stopped. It appeared that its antics had been caused by -the negligent displacement of a switch. We raised the lady and found -that although slightly damaged she was more frightened than hurt. We -consoled her with the assurance that if she chose to sue the company -she could make them pay for the elephantine gambols of the fiery steed -which had so disturbed her equanimity.[307] - -Seeing a man a short way off to whom I desired to speak, I was on the -point of jumping down off the platform, when my Q. C. exclaimed:-- - -“Hold! be not rash! If you jump, instead of going down by the steps, -and are hurt, you can never make the company pay for the plasters and -the salves;[308] besides here’s the train.” - -And so indeed it was at last. Up it thundered to the station amid -screeching and bell-ringing: out rushed the passengers eager to reach -the refreshment room. The crowd pushed my chum against a portable -weighing-machine, and, catching his foot in it, he fell and injured -himself. Seeing that he was not very seriously damaged I could not help -crying out:-- - -“Hold! be not rash! I knew a case on all fours with yours, where -the foot of a machine projected above the level of the platform six -inches and was unfenced; there it had stood for years without doing -any damage, and it was held that there was no evidence to go to a -jury of any negligence, the machine being where it might have been -seen, and the accident not being one which could have been reasonably -anticipated.[309] An exactly similar case. Ho! ho! ho!” - -“I wish the whole platform had given way with the weight of that mob, -and then there would without doubt have been evidence of negligence. -Besides I might have had the pleasure of seeing you break your leg;” -testily replied the Q. C. And he added, and more correctly than an -angry man usually speaks, “A company should not allow their platform to -be overcrowded, and they ought to have adequate means for protecting -their passengers in the event of an unusual influx of travellers.[310] -They are bound to see that the number of porters at each station is -adequate for the safety of passengers.”[311] - -“Ah! my dear sir, one must be careful and walk circumspectly about -a station. You know where a man fell, seriously hurting himself, on -a staircase down which some forty thousand people had passed every -month without an accident, the court held that there was no evidence -of negligence on the part of the company to go to a jury, although the -brass covering on the step had been worn smooth, and said that ‘the -mere fact of a man having fallen and hurt himself is not sufficient -to charge the company with negligence in the construction of their -station; and the court is in an especial manner bound to see that the -evidence submitted to the jury in order to establish negligence, is -sufficient and proper to go to them.’”[312] - - -FOOTNOTES: - -[254] Galena & Chi. Rw. _v._ Loomis, 13 Ill. 548. - -[255] Skelton _v._ L. & N. W. Rw., L. R., 2 C. P. 631; Boggs _v._ Great -Western Rw., 23 U. C. C. P. 573. - -[256] Williams _v._ Richards, 3 C. & K. 82; Cotton _v._ Wood, 8 C. B. -(N. S.), 571. - -[257] Stubley _v._ L. & N. W. Rw., L. R., 1 Ex. 13. - -[258] Kissenger _v._ N. Y., etc., Rw., 56 N. Y. 538. - -[259] Bilbee _v._ L. & B. Rw., 18 C. B. (N. S.), 584; see also, Stapley -_v._ L. B. & S. C. Rw., L. R., 1 Ex. 21. - -[260] Mackay _v._ N. Y. C., 35 N. Y. 75; Richardson _v._ N. Y. C., 45 -N. Y. 846. - -[261] James _v._ Gt. W. Rw., L. R., 2 C. P. 634 n.; see p. 63. - -[262] Barrett _v._ Midland Rw., 1 F. & F. 361. - -[263] Galena, etc., Union Rw. _v._ Loomis, 13 Ill. 548; Wakefield _v._ -C. & P. R. Rw., 37 Vt. 330. - -[264] B. & O. Rw. _v._ Trainor, 33 Md. 542; Cliff _v._ Midland Rw., L. -R., 5 Q. B. 258. - -[265] Wharton on Neg. § 382 and notes. - -[266] Davis _v._ N. Y. C., 47 N. Y. 400. - -[267] Wharton, § 382. - -[268] Ernst _v._ Hudson R. Rw., 39 N. Y. 61. - -[269] Wanless _v._ N. E. Rw., L. R., 6 Q. B. 481; _S. C._, L. R., 7 E. -& I. App. 12; Stapley _v._ London & B. Rw., L. R., 1 Ex. 21. - -[270] Brown _v._ Buffalo, etc., 22 N. Y. 191. - -[271] Havens _v._ Erie Rw., 41 N. Y. 296. - -[272] Hart _v._ Erie Rw., 3 Alb. L. J. 312; Tabor _v._ Mo. Vall. Rw., -46 Mo. 353; _S. C._, 2 Am. Rep. 270. - -[273] Steves _v._ Oswego & S. Rw., 18 N. Y. 422; Wilds _v._ Hudson R. -Rw., 24 N. Y. 430; but see Chaffee _v._ Boston & L. Rw., 104 Mass. 108. - -[274] Butterfield _v._ Western Rw., 10 Allen, 532; Miller _v._ G. T. -R., 25 C. P. (Ont.), 389. - -[275] Brand _v._ Troy & S. Rw., 8 Barb. 368; Anderson _v._ N. Rw., 25 -C. P. (Ont.), 301. - -[276] Brown _v._ Hannibal & St. J., etc., 50 Mo. 461; B. & O. Rw. _v._ -Trainor, 33 Md. 542. - -[277] Lake Shore Rw. _v._ Miller, 25 Mich. 277; Telfer _v._ N. Rw., 30 -N. J. 188; St. Louis, etc., _v._ Manly, 58 Ill. 300. - -[278] Oliver _v._ N. E. Rw., L. R., 9 Q. B. 409; Thompson _v._ G. W. -R., 24 C. P. (Ont.), 429. - -[279] Longmore _v._ G. W. Rw., 19 C. B. (N. S.) 183. - -[280] Bridges _v._ N. London, etc., L. R., 6 Q. B. 377. - -[281] Welfare _v._ London & Brighton Rw., L. R., 4 Q. B. 693; Stott -_v._ G. T. R., 24 C. P. (Ont.), 347. - -[282] Crafter _v._ Metropolitan Rw., L. R., 1 C. P. 300. - -[283] Shepperd _v._ Midland Rw. Co., 20 W. R. 705; but see _ante_, p. 9. - -[284] Railway Act, 1868, § 20, ss. 5 and 6 (Can.). - -[285] Railway Act, 1868, § 20, s. 5. - -[286] Ibid. § 20, s. 2. - -[287] 34 Vict. c. 43, § 6 (Can.). - -[288] Addison on Torts, 3d ed. 447. - -[289] Redfield on Rail., vol. ii., p. 276. - -[290] Le Blanche _v._ L. & N. W. Rw., 34 L. T. R. 25. - -[291] Becke _v._ G. W. R., 18 Sol. J. 972. - -[292] Denton _v._ G. N. Rw., 5 Ell. & Bl. 860; _In re_ Oxlade, 1 C. B. -(N. S.), 454; Heirn _v._ McCaughan, 32 Miss. 17. - -[293] Gordon _v._ M. & L. Rw., 52 N. H. 596. - -[294] Sears _v._ Eastern Rw., 14 Allen, 433. - -[295] Redfield on Railways, vol. ii., p. 277 n. - -[296] Hamlin _v._ G. N. R., 1 H. & N. 408, and as to damages for remote -and collateral consequences, see Story _v._ N. Y. & H. Rw., 2 Selden, -85; Horner _v._ Wood, 16 Barb. 386. - -[297] Le Blanche _v._ L. & N. W. R., 34 L. T. R. 25; reversed on -Appeal, W. Notes, May 27, 1876. - -[298] Becker _v._ L. & N. W. Rw., cited in 10 C. L. J. 311. - -[299] Weed _v._ P. R. Rw., 17 N. Y. 362. - -[300] Benson _v._ New Jersey Rw. Co., 9 Bosw. 412. - -[301] Hurst _v._ Gt. Western Rw., 34 L. J. C. P. 265; Robinson _v._ The -same, 35 L. J. C. P. 123. - -[302] Addison on Torts, p. 487. - -[303] Welfare _v._ London & Brighton Rw. Co., L. R., 4 Q. B. 693. - -[304] Briggs _v._ Grand Trunk Rw. Co., 24 U. C. Q. B. 510, 516. - -[305] McDonald _et ux. v._ Chicago & N. W. R. Co., 26 Iowa, 124. - -[306] L. R., 3 Exch. 150. - -[307] Caswell _v._ Boston & Worcester Rw., 98 Mass. 194. - -[308] Forsyth _v._ Boston & Alb. Rw., 103 Mass. 510. - -[309] Cornman _v._ Eastern Counties Rw., 4 H. & N. 781; see also -Blackman _v._ London, B., & S. C. Rw., 17 W. R. 769. - -[310] Hogan _v._ S. E. Rw., 28 L. T. (N. S.), 271. - -[311] Jackson _v._ Metropolitan Rw. L. R. 10 C. P. 49. - -[312] Crafter _v._ Metropolitan Rw. Co., L. R., 1 C. P. 300. Where on -the platform there were two doors in close proximity to each other, -the one for necessary purposes, had painted over it the words “For -gentlemen,” the other had over it “Lamp room.” The plaintiff having -occasion to go to the former, inquired its whereabouts and was directed -to it: by mistake he opened the door of the lamp room, fell down some -stairs, and was injured: _Held_, that in the absence of evidence that -the place was more than ordinarily dangerous, a nonsuit was right. -Toomey _v._ London B. & S. C., 3 C. B. (N. S.), 146. - - - - - CHAPTER VIII. - - TICKETS. - - Man and Wife double as to Baggage.--Money in Trunk.--Authority of - American Decisions.--Annual Tickets.--Badge of Officers.--Legislature - outwitted.--“Tickets, Sir.”--“Good for this Day only.”--“Good for this - Trip.”--Stepping off.--Lose a Ticket, and pay again.--The Acts. - - -Just as we were starting, I overheard an altercation between the -baggage-man and a woman of a rather masculine appearance, “with -angular outlines and plain surface, hair like the fibrous covering of -a cocoanut in gloss and suppleness as well as color, and a voice at -once thin and strenuous--acidulous enough to produce effervescence -with alkalies, and stridulous enough to sing duets with the katydids.” -He was asserting that she had too much baggage and that she must pay -freight; the woman demurred to this, and protested that as she and -her husband were travelling together they were entitled to a double -quantity of luggage. In this she was clearly right, as, though the -law considers that a man and a woman joined together in the bonds of -wedlock are one, still as respects baggage they are two,[313] or half a -dozen, if one may judge from Saratoga trunks. The disputants moved off -and I did not hear the functionary’s decision. - -As my companion opened his pocket-book to put in his checks, I -noticed that he had nothing therein except a few cents, so I remarked -jokingly:-- - -“You don’t appear to have much of the needful about you.” - -He replied, “Pshaw! I am not such a goose as to carry money in my -pocket to afford the light-fingered gentry an opportunity of enriching -themselves at my expense.” - -“But how do you manage to travel without money? I should like to learn -the secret,” I said. - -“So should I. I carry my cash in my trunk.” - -“In your trunk! Suppose you lose it?” - -“Well, the company’s liable,” he replied. - -“Shouldn’t think so,” I said. - -“But I am sure of it. It has been held that common carriers of -passengers are responsible for money _bonâ fide_ included in the -baggage of a passenger, for travelling purposes and personal use, -to an amount not exceeding what a prudent man--like myself for -instance--would deem proper and necessary for the purpose.[314] But -they are not responsible for money beyond such an amount, or intended -for other purposes, unless, of course, the loss is occasioned by the -gross negligence of the carriers or their servants.”[315] - -“Well, I don’t think you are a prudent man; besides, I fancy that’s -only an American authority,” I remarked. - -“Only an American authority! Suppose it is, it is not to be despised. -Bramwell, B., once said, that although the American authorities are -not indeed binding upon us, still they are entitled to respect as -the opinions of professors of English law, and entitled to respect -according to the position of those professors and the reasons they -give for their opinions,[316] and Spragge, C., in a late case, uses a -similar expression.”[317] - -“Of course I bow to the dictum of the learned baron and chancellor. But -doubtless there are American cases the other way.” - -“Perhaps. In fact I know there are.[318] But the great American -authority, Judge Redfield, thinks they are incorrect.[319] I can give -you a Pennsylvania case sustaining the Massachusetts one I quoted; -and that is where the company in their advertisements stated that -passengers were prohibited from taking anything as baggage but wearing -apparel, which would be at the risk of the owner, and the trunk of a -passenger contained specie--the extra weight beyond the usual allowance -was paid for and the company’s agent took charge of it. The trunk -wandered from the right way, went astray and was lost; and it was held -that it was not incumbent upon the passenger to inform the carrier -of the contents of the trunk unless he was asked, and that it was -immaterial whether it was to be considered baggage or freight, and that -the company was liable for its loss through the negligence or fraud of -their agents.”[320] - -“Well, such may be the law on the other side of the line, but in this -hyperborean Dominion of ours I must say that I think it is somewhat -different. I think that if the conduct of the traveller has in any way -contributed to the loss, he has no ground at common law for demanding -compensation from the carrier.[321] Why, there is that old case in -Burrows where a prudent man like yourself hid £100 stg. in an old -nail-bag with some hay, and gave it to a common carrier to be taken to -a banker; the money was lost, but the carrier was held not responsible, -as the consignor had neglected to tell him the exceeding value of the -bag and so prevented him taking due care of it.[322] Then there was -the case of the guineas tied up with a bit of string in a brown-paper -parcel,[323] the case of the sovereigns in the tea,[324] and the -banknotes and gold in the school-boy’s box,[325] in all of which the -carriers were held relieved from liability. Then in England there is -the Carrier’s Act (11 Geo. IV. and 1 Wm. IV., c. 68), applying to all -goods above £10.”[326] - -Here I was interrupted by the sudden cry of “Tickets! Tickets!” which -rang through the car. The conductor entered, and stopped in front of a -gentleman who said:-- - -“I have not got my ticket here. I hold a season one.” - -“That won’t do, sir;” said the man. “Holders of annual tickets -travelling on the line are bound to produce their tickets as much as -ordinary passengers.[327] So take your choice, show your ticket, pay -your fare, or out you go.”[328] - -“Well,” replied the gentleman, “sooner than be turned out with my -baggage, wherever you in your wisdom should deem best, I will pay my -fare.” - -“Don’t do it, sir;” I almost without intending it called out, so -eager was I in my crusade against the company, “the conductor has no -right to demand the tickets, nor receive any fare, nor in fact can he -exercise any of the powers of his office, or meddle or interfere with -any passenger or his baggage unless he has upon his hat or cap a badge -indicating his office;[329] and a company before they can enforce any -law as to the production of tickets must bring themselves strictly -within the terms of the law.”[330] - -“Sold again!” cried the wretched official, as he lugged out from his -coat pocket a small cap ornamented with the word “_Conductor_,” and -showing it to me he added, “You pretend to know a great deal about the -law, so perhaps you recollect that the statute does not say that the -cap or hat, with the badge, is to be worn on the head. The law in its -wisdom assumed that officers of the company would or must have caps -or hats, and that they would or must wear them, and wear them upon -the head, but it did not enact that they should do so.[331] It never -entered the wise noddles of the legislators at Ottawa that a man might -own two caps, a jolly fur one for use, and another little chap for -show.” - -“I acknowledge that I spoke with undue haste,” I meekly replied, -feeling very crestfallen as I heard audible smiles from several of the -passengers. - -But the remorseless railway man continued: “It is plain by the law of -Canada that a passenger is not obliged to purchase a ticket before he -enters the company’s car; he may pay the conductor, if he pleases, the -fare. But if the passenger pays and receives a ticket, then he accepts -the ticket upon the condition that he will produce it and deliver it -up when required by some duly authorized person, and in such case it -is part of the contract:[332] so, my dear sir,” he said soothingly to -the gentleman, though to me his words were very swords, “please produce -your ticket, or pay a second time. If you refuse, it will be too late -for you to produce it when I have given the signal to stop the train to -put you off.”[333] - -One lady, who appeared to be of the suspicious class, rather hesitated -when the conductor requested her to give up her ticket, and take his -check instead, but my friend told her that it was one of the rules of -the line and that she was bound to obey it.[334] - -When the conductor at length came up for my ticket I quietly shewed it, -and telling him of the circumstances connected with the refusal of the -baggage-man to check my trunk, asked him to refund the fare; this, as I -expected, he refused to do, adding that my friend would do as a witness -to prove that I had made the demand in case I chose to sue the company. - -After this obnoxious individual had departed, the Q. C. entered into -a lengthy disquisition concerning railway tickets; he remarked that -the words usually printed on them, “Good for this day only, A. to B.,” -created a contract on the part of the company to convey the holder in -one continuous journey from A. to B., to be commenced on the day of -issuing the ticket, and that if a passenger alighted at an intermediate -station he would forfeit all his rights under the ticket, and could -not claim to be carried on to his journey’s end in a subsequent train -without paying a new fare.[335] And the same rule holds good when -the ticket is marked “Good for this trip only;”[336] and when marked -“Good for one passage on this day only,” it can only be used on the -day of its date.[337] And where a ticket with the words, “Good for -this trip only,” marked upon it, and unmutilated, but a few days old, -was presented, it was held that it was _primâ facie_ evidence that -the holder had paid the regular fare, was entitled to be carried -between the places named, and that the ticket had never been used; -and also that such words referred to no particular trip, or time, -but only to a continuous trip which might be made on the date or any -subsequent day.[338] Some companies give their conductors power to -allow passengers to stop by the way by endorsing permission on the -ticket.[339] - -Companies have no intention of allowing a man after he has travelled -on a ticket for a time by one train to leave it, and afterwards, at -his august pleasure, to resume his seat in another train at some -intervening part of the road;[340] such proceedings would lead to -endless confusion, trouble, and annoyance. But it appears that when one -has tickets, in the coupon form, over distinct lines, if they contain -no restrictions one may delay as long as he likes at the different -changing places,[341] unless he voluntarily and negligently detaches -the coupon.[342] - -One Craig bought a ticket in Buffalo marked “Good only for twenty days -from date,” from Buffalo to Detroit. After viewing the glories and -magnificence of thundering Niagara he took his seat in the afternoon -accommodation train of the Great Western at the Suspension Bridge. -This train ran on to London, but Craig for his own pleasure got out -at St. Catherines and went up to see the town. As the night express -was going through that fashionable watering-place he applied to be -allowed to travel by it on the ticket he held, and on being refused -sued the company. The court, however, considered that the ticket bound -the company to carry the plaintiff on one continuous journey from -the Suspension Bridge to Detroit, giving him the option of taking any -passenger train from the point of commencement, and if that train did -not go the whole distance, to convey him the residue of the journey in -some other train, the whole journey to be completed in twenty days; -but that it did not give the holder the right to stop at every or any -intermediate station as Mr. Craig contended.[343] If one has left -the train in which he started on his journey, the fact that he has -subsequently entered another train and travelled over a part of the -remaining distance without being required to pay fare by the conductor -in charge, does not prejudice the company or renew the contract.[344] -But, said my friend, “I believe that in this last case Agnew, J., -guarded his meaning by saying that there might be exceptions to the -general rule, where from misfortune or accident, without his fault, the -transit of the passenger is interrupted, and he afterwards resumes his -journey. If, however, one has forfeited his right to be carried any -further by his stopping over, and yet the company continue to carry -him, they are bound to exercise reasonable care both towards him and -towards his baggage.”[345] - -While I was listening intently to the words of knowledge that were -flowing like some mighty river from the lips of the learned counsel, -and wondering how and why he was so deeply read on the topic, he -suddenly stopped in his discourse, pointed his finger at a little child -who had got possession of his mother’s ticket and was quietly by a -process of suction reducing it to an unsightly and undistinguishable -pulp, then raising his voice, Smith, Q. C., exclaimed:-- - -“Excuse me, madam, you ought to be more careful of your ticket, for if -you lose or destroy it, the conductor (unless he knows for a fact that -you actually did pay your fare and obtain a ticket) will be justified -in demanding repayment from you, and, if you refuse it, may put you off -the cars. Just listen to what the late lamented Chief Justice Robinson -says on this very point, and where a married woman, and for aught I -know a mother like yourself, was turned off the train, or had to pay -her fare a second time, I forget which.” - -And before the lady had recovered from her astonishment he dived into -his red bag, produced an extensive brief, and reads as follows:-- - -“It may seem hard to a man who has lost his ticket, or perhaps had it -stolen from him, that he should have to pay his fare a second time; -but it is better and more reasonable that a passenger should now and -then have to suffer the consequences of his own want of care, than -that a system (the system of issuing tickets as now in vogue) should -be rendered impracticable, which seems necessary to the transaction of -this important branch of business. It is not for the sole advantage, -or the pleasure and caprice of the railway company that these things -are done in such a hurry. The public, whether wisely or not, desire -to travel at the rate of four or five hundred miles a day, and -that rapidity of movement cannot be accomplished without peculiar -arrangements to suit the exigency which must be found sometimes to -produce inconvenience. If the passenger in this case, who I have no -doubt lost her ticket, could claim as a matter of right to have it -believed on her word that she had paid her passage, everybody else in -a similar case must have the same right to tell the same story and to -be carried through without paying the conductor, and without showing to -him a proof that he had paid any one.”[346] - -“But,” said the lady, who during the delivery of the judgment had time -to recover her senses and her ticket, “but my friend here could vouch -for me that I spoke the truth.” - -“Ah, my dear madam, do not deceive yourself; reflect that in -Massachusetts it was decided that if carriers require passengers to buy -tickets before going on board, and to deliver them up on going off, and -the passenger loses his ticket, he must on landing pay again;[347] and -in Curtis _v._ G. T. R. Co.,[348] that ornament of the Canadian bench, -Draper, C. J., remarked that he supposed that a man who produced -no ticket, but asserted that he had paid his fare and had lost his -ticket and therefore declined to pay again, would--though a by-stander -corroborated the assertion--be deemed refusing to pay, within the -meaning of the Acts.” - -“I do not see what the Acts have to do with it. I never saw anything -about such things in the Acts,” said the lady, getting rather puzzled -over the matter. - -“What, madam, do you read such things? I should have imagined that a -fair creature like yourself would have found them too dry to read.” - -“No sir; I am a member of the association of the Church of the New -Jerusalem, and I read the Acts of the Apostles as well as every other -part of the Bible,” eagerly responded the lady. - -Amid broad smiles, giggling he-hes, hearty ha-has, guffawing ho-hos, -the Q. C. hastened to explain. - -“Oh, my dear madam, I meant no allusion to Holy Writ; I meant 31 -Vic., chapter 68, commonly called the Railway Act of 1868, which -says at section 20: ‘Any passenger refusing to pay the fare, may by -the conductor of the train and the servants the company be put off -the cars, with his luggage, at any usual stopping-place, or near any -dwelling-house, as the conductor elects, the conductor first stopping -the train and using no unnecessary force.’” - - -FOOTNOTES: - -[313] Great Northern Rw. _v._ Shepherd, 8 Ex. 30. - -[314] Jordan _v._ Fall River Rw., 5 Cush. 69. - -[315] Orange County Bank _v._ Brown, 9 Wend. 85; Weed _v._ Saratoga & -Sch. Rw., 19 Wend. 534; Duffy _v._ Thompson, 4 E. D. Smith, 178. - -[316] Osborn _v._ Gillett, L. R., 8 Ex. 92. - -[317] Deedes _v._ Graham, 20 Grant, 258, 270. - -[318] Grant _v._ Newton, 1 E. D. Smith, 95; Chicago and Aurora Rw. _v._ -Thompson, 19 Ill. 578. - -[319] Red on Railways, vol. ii., pp. 56-58. - -[320] Camden & Amboy Rw. _v._ Baldauf, 16 Penn. St. (4 Harris), 67; see -also Walker _v._ Jackson, 10 M. & W. 161, as to not inquiring contents, -and Crouch _v._ L. & N. W. Rw., 14 C. B. 255, as to right to inquire. - -[321] Butterworth _v._ Brownlow, 34 L. J. C. P. 267. - -[322] Gibbon _v._ Paynton, 4 Burr. 2298. - -[323] Clay _v._ Willan, 1 H. B. 298. - -[324] Bradley _v._ Waterhouse, 3 C. & P. 318. - -[325] Batson _v._ Donavan, 4 B. &. Ald. 37. - -[326] By it no carrier is liable for loss or injury to any articles -of great value in small compass, or for money, bills, notes, jewelry, -etc., above £10, unless the value and nature of the property has been -declared, and an increased charge paid for it. - -[327] Woodard _v._ Eastern Counties Rw., 7 Jur. (N. S.), 971, 4 L. T. -(N. S.), 336; Downs _v._ N. Y. & N. H. Rw., 36 Conn. 287. - -[328] Railway Act (Can.) 1868, § 20, s. 12. - -[329] The Railway Act 1868, § 20. - -[330] Jennings _v._ Gt. N. Rw., L. R., 1 Q. B. 7. - -[331] Farewell _v._ G. T. R., 15 U. C. C. P. 427. - -[332] Duke _v._ Great Western Rw., 14 U. C. Q. B. 377. - -[333] State _v._ Thompson, 20 N. H. 250. - -[334] N. R. Rw. _v._ Paige, 22 Barb. 130. - -[335] Briggs _v._ G. T. Rw., 24 U. C. Q. B., 510; Dietrich _v._ Penn. -A. Rw., 8 C. L. J. (N. S.), 202; McClure _v._ Phil., Wil., & Balt. Rw., -34 Md. 532; Boice _v._ Hudson R. Rw., 61 Barb. 611; Cunningham _v._ G. -T. R., 11 L. C. Jur. 107; Cheney _v._ Boston & M. Rw., 11 Met. 121; -Elmore _v._ Sands, 54 N. Y. 512. - -[336] Cheney _v._ Boston & Maine Rw., 11 Met. 121. - -[337] State _v._ Campbell, 3 Vroom, 309. - -[338] Pier _v._ Finch, 24 Barb. 514. - -[339] McClure _v._ Phil., Wil., & Balt. Rw., 34 Md. 532. - -[340] State _v._ Overton, 4 Zabriskie, 438: Cincinnati, Columbus, & C. -Rw. _v._ Bartram, 11 Ohio St. (U. S.), 457. - -[341] Brooke _v._ Grand Trunk Rw., 15 Mich. 332. - -[342] Hamilton _v._ N. Y. C., 51 N. Y. 101. - -[343] Craig _v._ Great Western Rw. Co., 24 U. C. Q. B. 504; Boston & -Lowell Rw. _v._ Proctor, 1 Allen, 267; Shedd _v._ Troy & Boston Rw., 40 -Vt. 88. - -[344] Dietrich _v._ Penn. A. Rw. Co., 8 C. L. J. (N. S.), 202. - -[345] Smith _v._ G. T. R., 35 Q. B. (Ont.), 547, 557. - -[346] Duke _v._ Great Western Rw. Co., 14 U. C. Q. B. 377. - -[347] Standish _v._ Narragansett St. Co., 111 Mass. 512. - -[348] 12 U. C. C. P. 89. - - - - - CHAPTER IX. - - PRODUCING TICKETS, OR EVICTION. - - Carried past.--Jumping off.--Junctions.--Cave Canem.--Conductors - refusing Change.--Fighting in the Cars.--Conduct of - Passengers.--Ladies’ Car.--Turned out in the Dark.--No Seats.--Colored - Persons.--Tickets lost and found too late.--Conductor’s - Conduct.--Damages for Wrongful Ejectment.--Go quietly.--Companies - heavily Mulcted.--By-law as to producing Tickets.--A Lover, his - Mark.--Getting off for a Moment. - - -Fortunately for my friend the attention of our fellow travellers was -drawn away from him by the language, more forcible than elegant, -of a man who had been carried past a small way-station at which he -desired to alight, and for which he had a ticket. He vowed vengeance -against the company because the train was not stopped and a reasonable -opportunity given him to alight, and threatened loudly to sue the -company for the damage which, he said, he would inevitably sustain -through his non-delivery at his destination. And no doubt he would be -successful, judging from authorities, in recovering compensation for -the inconvenience, loss of time, and the labor of travelling back to -the haven where he would be, because these are the direct consequences -of the wrong done him.[349] One Hobbs, and Betsy his wife, with two -juveniles, once took a midnight train homeward bound; they were landed, -however, at another village, some miles off from their house; it was so -late that they could neither get a conveyance, nor yet accommodation -at an inn, and so all had to walk home through a drizzling rain. Betsy -took cold and was laid up for some time, and the jury gave a verdict -of £28 in their favor; £8 for the personal inconvenience, the balance -for the wife’s illness and its consequences. The court considered -that Hobbs was entitled to the £8, but not to the rest, the sickness -being too remote a consequence of the breach of contract.[350] This -was in England, but in Mississippi where a man, subject to rheumatism, -got carried past his station and had to walk back in the rain, -whereupon his old enemy attacked him, it was decided that he might -get satisfaction out of the company.[351] The ticket must always be -taken to be the contract between the passenger and the company for the -special purpose, and upon the terms which are contained in it,[352] -and when the company has issued a ticket to a particular place they -are bound to stop there, and it is not enough merely to slacken off -steam;[353] but, without special agreement, one cannot insist upon a -train stopping at a place where they do not usually delay.[354] - -Somebody--not a Solomon--asked the man why he had not jumped off; he -sensibly--considering he was in a passion--replied:-- - -“If I had been so foolhardy as to jump off while the train was in -motion, without doubt, many a court in the land would hold that I did -it at my own risk, and, if hurt, could coolly tell me that for my gross -imprudence I had nobody but myself to blame,[355] if, however, they had -stopped but for a moment, I would have run the risk of being injured by -their starting before I was quite off, for then they would have been -liable,[356] and I would have done so if the train had been moving -slowly.”[357] - -“But,” said my legal luminary to me, sotto-voce--for he was afraid to -draw attention to himself again--“if a passenger is induced to leap -from a car under the influence of a well-grounded fear of a collision -that would be fatal to limb or life, it seems to be regarded as well -settled that he may recover against the carriers, even though he would -not have been hurt in the slightest degree, had he philosophically -remained quiet.”[358] - -Another man wanted the conductor to stop the train because he had -just discovered that he was on the wrong track; but this favor was -refused, and the stupid fellow had to pay the full fare to the next -stopping-place.[359] - -By this time we had reached the Junction, and friend Smith and myself -and several other persons got out to take the cars of the one or the -other of the two other companies whose lines here cross. The stations -of the three companies are all open to each other, and the passengers -of each pass directly from the one to the other, “no pent up Utica -contracts their powers” of pedestrianism, the whole area being used -as common ground by the travellers on all three roads. While here, -a porter of the B. and E. Co., who was trundling a track laden high -with luggage, let a portmanteau fall off and injure the toes of one -of our fellow-travellers who was on the part of the platform owned by -the B. and E. Rw. Co. on his way to the terminus of the other line. -(I afterwards heard that the court held that the negligence being an -act of misfeasance by the servant of the company in the course of his -employment, the maxim _respondeat superior_ applied, and that the -company were liable; but the judges doubted whether the railway would -have been responsible supposing the man had been injured from the state -and condition of the platform, as he had no business on it.)[360] - -As I was trudging along an ugly dog of the cur tribe, with a _noli me -tangere_ expression of countenance, dashed past me and rushed up to an -innocent-looking individual, seizing him violently by the posterior -part of the most indispensable portion of a man’s attire, and judging -from the row the fellow kicked up, by something more sensitive than -pantaloons as well: shaking vigorously, the dog detached a piece -of cloth and drew a little blood. The victim had a heavy stick in -his hand, and the little doggy’s lively career was stopped then and -there. I remarked to the man, “My friend, if you find out that that -unfortunate puppy belonged to the company or to any of their servants, -sue them for damages; if not, don’t trouble yourself to do so unless -you can show that they were able to dispose of the fractious animal and -did not do it.”[361] - -Shortly after we were again under way a little excitement was -occasioned by an altercation between the conductor and a man who -had not fully made up his mind (whether owing to the magnitude or -insignificance thereof, we cannot say) how far he intended to ride, and -so did not wish to settle for the present. The strife of tongues waxed -warm, and the sound of the conflict rose high above the rattle and the -din of the train. - -The conductor said that if he did not at once pay the fare to some -place or other he would have the pleasure of walking there. The man -still hesitated, so the official pulled the check-rope, and on the -stoppage of the train proceeded to eject the traveller, who at the -last moment tendered a $20 gold piece, and told the conductor to take -the fare to the next station (some $1.35). The latter declined now -to receive the money, and put the man off, leaving him alone in his -glory, breathing curses loud and deep.[362] Doubtless the official -was justified in so doing, as in a somewhat similar case the court -said that even an officer at a ticket office might reasonably object -to an offer of a $20 gold piece to pay a fare of $1.35, on account -of the trouble and risk involved: and that a person rushing into the -cars without a ticket has no reason to expect that he will find the -conductor prepared to change a $20 gold piece, for he relies upon -receiving tickets from the passengers, or, if money be paid to him -instead, he expects that it will be paid with reasonable regard to what -is convenient under the circumstances.[363] - -I may as well inform the general public here, that it is considered a -reasonable condition for railway companies to require passengers to -procure tickets before entering the train.[364] - -My friend was just beginning to dilate upon the subject of ejecting -passengers, when his voice was drowned by a crash, a scream, and -a general uprising of our fellow-travellers. I verily thought -within myself that there was a collision--that we were off the -track--that--that--that, I don’t know what I did not think in the few -moments that elapsed before I saw that it was only a fight between some -men who had been indulging deeply in that cup which inebriates and -brutalizes as well as cheers. The conductor soon arrived and quelled -the disturbance. In this case, fortunately, it was not necessary--as -it may sometimes be--for him to stop the train, call to his aid the -engineer, the firemen, brakesmen and bellicose passengers, and leading -the way himself--like some valiant knight of the Middle Ages--expel -the disturbers of the peace, or else show by an earnest experiment -that to do so was impossible.[365] If this latter contingency were -to happen, the conductor must either discontinue the trip, or give -the other passengers an opportunity of leaving the cars; otherwise -the company will be responsible for the acts of the rioters.[366] A -conductor is not bound to wait until some act of violence, profaneness, -or other misconduct has been committed before exercising the power -reposed in him of excluding or expelling offenders.[367] Of course he -is never bound to receive passengers who will not conform to reasonable -regulations, or who from their behavior, state of health or person, -are offensive to the other travellers.[368] - -Carriers of passengers are just as responsible for the misconduct of -their living freight as they are for the mismanagement of the train. -They must exercise the utmost vigilance in maintaining order--that -first of Heaven’s laws--and in guarding passengers against violence; -or if not, they must pay for the consequences. In one case, they had -to pay for the eye which a passenger lost, through the quarrel of some -drunken men.[369] In another, for an arm broken in a shindy between -votaries of Bacchus.[370] All disorderly and indecent conduct is to -be repressed, and those sons of Belial who are guilty thereof must -be excommunicated, or expelled, with Puritanic severity.[371] No one -should be permitted to travel in a car, who so demeans himself as to -endanger the safety, or interfere with the reasonable comfort and -convenience of other passengers. But a wolf in sheep’s clothing, a -whited sepulchre, a serpent disguised as an angel of light, cannot -be refused transport; nor need a conductor remove a too-far-gone -dissenter from the principles of J. B. Gough, if he is neither -disorderly nor offensive, nor if he remains quiet after admonition. If -there is nothing in the condition, conduct, appearance, or manner of -a passenger, from which it can reasonably be inferred that he means -mischief, the company will not be liable for any sudden attack he may -make upon another passenger.[372] - -Where the company issue excursion tickets, stipulating to run trains -in a particular manner, they cannot excuse themselves, by showing that -the carriages are all filled.[373] In England, in ordinary cases, the -ticket is issued subject to the condition that there is room in the -train; otherwise those who are booked for the greatest distance have -the preference.[374] And a carriage must not be suffered to become, -or at least to continue overcrowded.[375] A considerable discussion -has taken place in some of the States of the Republic as to how far -railway companies can require colored persons to sit in a particular -place or car. The right to do so was maintained by the Supreme Court -of Pennsylvania,[376] but other tribunals have denied it. In Illinois -it was decided that a company could not from caprice, wantonness, or -prejudice, exclude a black woman from the ladies’ car on account of -her negro blood; although it might not be an unreasonable rule to -require colored persons to occupy seats in a separate car, furnished as -comfortably as the others.[377] - -The duties of common carriers include the doing of everything -calculated to render the transportation most comfortable and least -annoying to passengers.[378] Their contract with their patrons is a -stipulation for respectful treatment, that decency of demeanor which -constitutes the charm of social life, that attention which mitigates -evils without reluctance, and that promptitude which administers -aid to distress. And in respect to women it proceeds still further; -it includes an implied stipulation against general obscenity, that -immodesty of approach which borders on lasciviousness, and against that -wanton disregard of the feelings which aggravates every evil.[379] - -As men of all sorts and conditions are so constantly travelling -on trains, it is not only a reasonable regulation, but almost a -humane duty, to have on every train a ladies’ car for women and men -accompanying them, from which creatures wearing exposed bifurcated -garments, unblessed by the companionship of the fair sex, and women -of offensive habits and character may be excluded, so that all the -good ladies may be together as they will be in heaven.[380] And even -though persons not admissible under the letter of the regulation are -occasionally permitted within the charmed precincts the rule is still -binding, and a male in trowsers has no right to enter without license -or reasonable excuse. If passengers excluded, by regulations, from -the ladies’ car cannot find seats in the regular coaches and there -is room in the privileged place, they must not be kept standing; but -it is the officers of the train who must determine who shall, or who -shall not, be allowed to enter the presence of the ladies; one has no -right to enter or attempt an entrance by force. If one being unable to -find a seat elsewhere go peaceably into the ladies’ car without being -forbidden, he cannot then be removed by violence, unless a seat in -another carriage is offered to him and he refuses to move. But under -no circumstances will a brakesman be authorized in forcibly ejecting -such an intruder by throwing him on to the platform while the train is -crossing a river. A man is not bound to stay in a smoking-car.[381] - -It is said to have been held by some court, in a case of _Toland_ -against _The Hudson River Railway_, that a passenger who is not -provided with a seat is not obliged to pay any fare, and if expelled -from the cars for refusing such payment may sustain an action against -the company. But this doctrine must be taken _cum grano salis_. If -a passenger is not accommodated as he should be, he may decline any -compromise, and sue the company for refusing to carry him as their -contract by the ticket or their duty required; and he doubtless -will succeed unless the company prove some just excuse. But if one -chooses to accept a passage without a seat, the general understanding -undoubtedly is that he must pay. If, however, he goes upon the cars -expecting proper accommodation, and is put off because he declines -going without, he may still sue.[382] So much by way of parenthesis and -digression. - -“Well, what have you got to say about ejectment?” I asked my chum. - -“Oh, that it is deuced hard that every dunderhead of a conductor -may put a poor wayfaring-man off, even at the noon of night, near -any dwelling-house he may choose. In one case the night was dark -and cloudy; from where the ejected man was placed, the lights of -the last station were visible, although no house was nigh, yet the -court held that the servants of the company had not exceeded their -authority.[383] The law in some States is that one can only be put out -at a station.”[384] - -“How would it be, old boy, if the poor wretch was short-sighted?” I -inquired. - -“That defect in one’s optics would impose no additional obligation on -the company; at least so it would appear from the authorities.”[385] - -“What would be the consequences if a fellow was to mislay his ticket, -and find it again after he had been ignominiously expelled; could he -recover against the company?” - -“I remember where one Curtis was travelling between St. Mary’s and -London, and had put his ticket away so safely--lest he should lose -it--that he could not find it. The conductor called upon him to produce -it; in vain Curtis ransacked pocket after pocket in coat, waistcoat, -and trowsers, pulling out papers, letters, newspapers, wool, and all -that precious olio to be found in a man’s pockets. The other travellers -were greatly edified and delighted at the exhibition of this _omnium -gatherum_, and their laughs and jests added not a little to the -confusion of the poor wretch searching for his little talismanic piece -of pasteboard. At length the conductor stopped the train and turned C. -off, though while being put off he offered to pay his fare. He sued -the company, and got $300 out of them, the court holding the company -liable for the acts of their officers duly authorized and styled (under -the Act) conductors, when not committed in excess of authority, which -in this case had not been overstepped. The company applied for a new -trial, but the court declined to disturb the verdict (it being the -second one recovered by Curtis), although it considered the damages -excessive.”[386] - -“I should think,” I remarked, “one ought to be allowed a reasonable -time to find his ticket.” - -“Of course,” was the reply, “a passenger has a right to ride so -long as there is a reasonable expectation of his finding it during -the trip.[387] A conductor on a previous train wrongfully taking -the passenger’s ticket does not excuse the traveller from producing -it, when called upon by another conductor; although, in such a -case, the company would be liable for the wrongful act of the first -conductor.”[388] - -“I suppose the courts assume that the conductors are the agents of the -company and authorized to do all legal acts for properly collecting -the tickets, keeping order, running the train and removing persons who -misbehave or will not pay, and such?” I queried. - -“Yes,” replied my friend, who was suffering from an acute attack of -_cacoethes loquendi_, “and if in assuming to carry out what he is -legally empowered to do, he forcibly removes from the cars (without -any excuse) a passenger who has paid his fare, he will be liable for -the assault; but if while being removed the man should slip, fall, and -be injured, the company will not be responsible for his scratches and -bruises, or his sprains and strains, such things being the remote, and -not the proximate consequences of the ejectment.”[389] Force may be -used to prevent one unlawfully getting on a train and no liability -be incurred for injuries; but when once a man is fairly on care must -be taken in removing him.[390] Companies have a right to adopt such -reasonable regulations as are necessary for their security, and if they -are not complied with by the passengers, not only may the railroad -refuse them admission to the cars, but if they are already within -they may remove them;[391] “and in the enforcement of order, and in -the execution of reasonable regulations for the safety and comfort of -passengers and for the security of the train, the authority of the -officer in charge must be obeyed.”[392] - -“Suppose a man suffered serious detriment to his business by being -wrongfully turned out of the cars, could he recover for such losses?” I -asked. - -“It has been so considered in the great Republic, if he declares -specially in regard to them.[393] But it has been held--and I think -rightly--that one cannot get vindictive or punitive damages against a -company, unless they expressly or impliedly participate in the wrongful -action by authorizing it beforehand or approving of it afterwards;[394] -or the case be one of gross negligence or wilful misconduct.”[395] - -“What is it, then, exactly, that a man can get for being with -indignity and insolence hustled out of a train, amid the laughs and -jeers of the vulgar and the sneers of the polite?” - -“Damages for actual injury, loss of time, pain of body, money paid to -the doctor, or for injuries to the wounded feelings of the evicted one, -may be allowed.[396] One man got $1,150 for being put off, when sick, -away from a station.”[397] - -“Suppose one was killed, and sent off unprepared to the happy hunting -grounds of his fathers?” I queried. - -“Then the company would be liable under Lord Campbell’s Act,”[398] -answered my Nestor. - -“I presume,” I continued, still indulging my unquenchable thirst for -knowledge, “that when a conductor gets into his cranium the idea that -it is the proper thing to put one off, the best plan is quietly to -submit to the inscrutable and go?” - -“Undoubtedly--spoken like a veritable Solon. In such an evil case -it will be wise and prudent to gather together one’s surroundings -and belongings, and peaceably succumb to the powers that be, for if -you leave any articles behind you, you cannot recover their value, -unless you can show that the company got them, or that the violence or -suddenness of your ejection rendered it impossible for you to take them -with you and so they were lost. This point Mr. Glover had the pleasure -of settling. He was trying to do the London and Southwestern by giving -half his ticket to a friend to save expenses, and when put out of the -cars left a pair of glasses behind him, and the court told him that -he had only himself to blame for the loss.[399] The courts never like -the idea of mulcting railway companies in heavy damages for the sins -of commission of their servants and conductors; and so where a verdict -of £50 was given against the G. W. R. because the conductor put the -plaintiff off the train, though the inconvenience to him was a mere -bagatelle and the conductor had acted _bonâ fide_ under an impression -that the fare had not been paid, and had used no harshness or violence, -a new trial was granted on the ground of excessive damages, and the -Chief Justice stigmatized the verdict as ‘outrageous:’ but there the -jurors of our Lady the Queen and my lord differed; and so on the second -trial the yeomen of the county gave the man only £5 less, and the -company submitted.[400] And in another case the same Canadian court -spoke regretfully of the exorbitant amount of damages (£50) where the -company were not otherwise concerned than through the act of their -conductor, who thought that he had only been doing his duty, as England -expects every man to do.[401] And where an American jury gave $1,000, -no special damage being shown, a new trial was granted.”[402] - -“To return to the question of tickets.” I said, “I saw an English -decision the other day, which shows how one may save a little in going -to an intermediate place, where opposition lines are running to some -place beyond.” - -“How is that?” was asked. - -“Why, often if two lines run to B. or there is an excursion thither, -the fare is cheaper than to A., which, perhaps, is not half the -distance, and one can buy a ticket to B. and get off at A. if he so -wishes.” - -“Would that be a safe dodge?” - -“It appears to have been decided in England that one may pay his fare -to one place, and yet leave the cars at some intermediate place where -the train stops, although the fare to the latter place may be greater -than it is to the former.”[403] - -“I saw another rather funny decision. By a by-law, passengers not -delivering up their tickets when required were made liable to a -penalty; a man took a return ticket, yet after returning to the place -whence he started, did not get off but went on to a further station, -without, however, any intention to defraud; it was held that he could -not be convicted under the by-law, for it only applied to the case of -a person wilfully refusing to show his ticket _when he had one_, while -here the man had none! It was held, also, that the by-law only applied -to people travelling minus a ticket with intent to defraud.[404] Where -a gentleman took tickets for himself and three servants, keeping the -tickets in his own custody and telling the guard that he had them, and -the servants were permitted to enter the car without having or showing -each his ticket, the court held that the company were estopped from -raising the objection that the by-law as to the production and delivery -up of tickets had been infringed.”[405] - -“I believe,” I remarked, when a pause enabled me to squeeze in a -remark, “a company if it chooses may allow a discount off tickets -bought before entering the cars; but that those who enter without their -magic scraps of card-board cannot claim such indulgence,[406] even -though they have been prevented purchasing them from the fact of the -office being closed.[407] Although, I believe, it has been held by some -courts that the increased rate cannot be collected unless every proper -and reasonable facility has been afforded for procuring tickets at the -station;[408] and that if a man, without any default on his part, is -prevented getting a ticket, he may pay the conductor the excess of -fare under protest, and recover it back by suit, or else he may insist -upon being taken at ticket rate, and sue for damages if the company -refuse.”[409] - -“I see that in England some companies have a by-law that if a passenger -loses his ticket he shall be liable to pay the full fare from the most -distant place on the line.” - -“That’s rather hard lines.” - -“Don’t pun--fortunately they cannot enforce their by-law by detaining -the traveller himself.”[410] - -The legal disquisitions on railway companies were suffered to subside -for a time, while the train rattled on. I gazed about on my companions. -In the seat in front of me sat a young couple, and, judging from the -orange blossoms in the bonnet of the one, and the clean shave and kid -gloves of the other, not many hours had elapsed since they had stood -side by side at Hymen’s altar, and now they were seated inclining -towards each other like the slanting sides of the letter A. The male -had a little piece of sticking-plaster on his lower lip. As I was -staring at the youthful couple, the train dashed into a tunnel and all -was darkness. I heard a prolonged sucking sound as of a cow drawing her -hind foot out of a mud-hole--to quote a western poet of renown--and -when again we emerged into the daylight, ho! presto! the plaster was -reposing securely on the ruby lip of the orange-bonneted one; all else -was serene and tranquil, and the two looked childlike and bland. How -was this? here was a mystery as interesting as any involved in railway -law. I meditated deeply on the point until I recollected what in our -ante-nuptial days my Elizabeth and myself were wont to do; then all -became clear and plain. - -“Had a sleep, have you?” I said to my friend, who had been silent an -hour and was now yawningly stretching himself. - -“A sleep? oh! no! not even a cat-nap, scarcely worthy of the name of a -kitten-nap,” was the reply. - -“Humph! rather a long kitten! twenty miles or so!” - -We stopped at a small wayside station for a few minutes while the -engine took a draught of water; a gentleman got out to take a breath of -air or something of the sort, and while he was wandering up and down -the platform, off started our train without a solitary premonitory -screech, leaving the individual wildly waving his arms and frantically -shouting after the hindermost car. In thus quietly slipping off, the -company were wrong, for a traveller who alights temporarily, but -without notice, invitation, or objection, while the train is stopping -at an intermediate station, does no unlawful act, and although for a -time he surrenders his place and rights as a passenger, he may resume -them again before the train starts, and the officers of the railway -are bound to give him reasonable notice of starting,[411] and must -not steal off silently like a thief in the night. And passengers have -a right to perambulate the platforms while the train is stopping for -refreshments, and the firemen and stokers should not toss about wood or -coal so as to injure the travellers.[412] - - -FOOTNOTES: - -[349] Damont _v._ N. O. & C. Rw., 9 Lou. Ann. 441; Ill. C. Rw. _v._ -Able, 59 Ill. 131; Redfield on Railways, vol. ii., 276. - -[350] Hobbs _v._ L. & S. W. Rw., L. R., 10 Q. B. 111. - -[351] Mobile, etc., Rw. _v._ McArthur, 43 Miss. 180. - -[352] Farewell _v._ G. T. R., 15 U. C. C. P. 427. - -[353] Georgia Rw. _v._ McCurdy, 45 Ga. 288. - -[354] Chicago, etc., Rw. _v._ Randolph, 53 Ill. 510. - -[355] Damont _v._ N. O. & C. Rw. 9 Lou. Ann. 441; Lucas _v._ T. & N. B. -Rw., 6 Gray, 64; but see Ill. C. Rw. _v._ Able, 59 Ill. 131. - -[356] Penn. Rw. _v._ Kilgore, 32 Penn. St. 292. - -[357] Filer _v._ N. Y. C., 49 N. Y. 47; Loyd _v._ Hannibal, etc., Rw., -53 Mo. 509. - -[358] Ingalls _v._ Bills, 9 Met. 1; Eldridge _v._ Long Is. Rw., 1 -Sandf. 89; Rw. _v._ Aspell, 23 Penn. St. 147. - -[359] Columbus, etc., Rw. _v._ Powell, 40 Ind. 37. - -[360] Tebbutt _v._ Bristol & Ex. R. Co., L. R., 6 Q. B. 73; Stiles _v._ -Cardiff Steam Nav. Co., 33 L. J. (N. S.), Q. B. 310. - -[361] Smith _v._ Great Eastern Rw., L. R., 2 C. P. 4; Barrett _v._ -Malden & Melrose Rw., 3 Allen, 101. - -[362] People _v._ Jillson, 3 Parker C. C. 234. - -[363] Fulton _v._ Grand Trunk Rw., 17 U. C. Q. B. 433. - -[364] Hurst _v._ G. W. R., 19 C. B. (N. S.) 310. - -[365] Pittsburgh, F. W., etc., Rw. _v._ Hinds, 7 Am. Reg. (N. S.) 14; -_S. C._, 53 Pa. St. 512. - -[366] Redfield on Railways, vol. ii., p. 234. - -[367] Vinton _v._ Middlesex Rw., 11 Allen, 306. - -[368] Hodges on Railways, 553; 5th edit., 585. - -[369] Pittsburgh, etc., _v._ Pillow, 7 Leg. Gaz. 13; Sup. Ct. Pa. - -[370] Pittsburgh, F. W., etc., Rw. _v._ Hinds, 7 Am. Reg. (N. S.) 14; -_S. C._, 53 Pa. St. 512. - -[371] Flint _v._ Norwich, etc., Transportation Co., 34 Conn. 554. - -[372] Putnam _v._ Broadway, etc., Rw., 55 N. Y. 108. - -[373] Patteson, J., in Hawcroft _v._ G. N. R., 16 Jur. 196. - -[374] Hodges on Railways, 553. - -[375] Jackson _v._ Metropolitan Rw., L. R., 10 C. P. 49. - -[376] Westchester Rw. _v._ Miles, 55 Penn. St. 209. - -[377] Chicago & N. W. _v._ Williams, 55 Ill. 185. - -[378] Day _v._ Owen, 5 Mich. 520. - -[379] Chamberlain _v._ Chandler, 3 Mason, 242; Nieto _v._ Clark, 1 -Clifford, 145. - -[380] Bass _v._ C. & N. W. Rw., 36 Wis. 450. - -[381] Bass _v._ Chicago & N. W. Rw., 36 Wis. 450. - -[382] Redfield on Railways, vol. ii., p. 282; but see Davis _v._ Kansas -City Rw., 53 Mo. 317. - -[383] Fulton _v._ G. T. R., 17 U. C. Q. B. 433. - -[384] Toledo, P., & W. Rw. _v._ Patterson, 63 Ill. 304. - -[385] Bridges _v._ N. London Rw., L. R., 6 Q. B. 377. - -[386] Curtis _v._ G. T. R., 12 C. P. (U. C.), 89. - -[387] Maples _v._ N. Y. & N. H. Rw., 38 Conn. 557. - -[388] Townsend _v._ N. Y. C., 56 N. Y. 295; Hamilton _v._ N. Y. C., 51 -N. Y. 100; but see Pittsburgh, etc., _v._ Hennigh, 39 Ind. 509; Palmer -_v._ Charlotte, etc., Rw., 3 S. C. 580. - -[389] Williamson _v._ G. T. R., 17 C. P. (U. C.), 615. - -[390] Kline _v._ Cent. Pac. Rw., 37 Cal. 400. - -[391] Stephen _v._ Smith, 29 Vt. 160. - -[392] Bass _v._ C. & N. W. Rw., 36 Wis. 463. - -[393] Holmes _v._ Doane, 3 Gray, 328. - -[394] Hagan _v._ Providence & W. Rw., 3 Rhode Island, 88. - -[395] Bannon _v._ Baltimore & O. R. R., 24 Md. 108; Baltimore & O. R. -R. _v._ State, Ib. 271. - -[396] Hagan _v._ Prov. & W. Rw., 3 Rhode Island, 88. - -[397] Ill., etc., Rw. _v._ Sutton, 53 Ill. 397. - -[398] Penn. Rw. Co. _v._ Vandiver, 42 Penn. St. 365. - -[399] Glover _v._ London & S. W. Rw., 3 Q. B. 25. - -[400] Huntsman _v._ G. W. R., 20 U. C. Q. B. 24. - -[401] Davis _v._ G. W. R., 20 U. C. Q. B. 27, and Life of Lord Nelson. - -[402] Crocker _v._ New London, Will., & Pat. Rw., 24 Conn. 249. - -[403] The Queen _v._ Frere, 4 E. & B. 598; Moore _v._ Metropolitan Rw., -8 Q. B. 36. - -[404] Dearden _v._ Townsend, 12 Jur. (N. S.), 120; 35 L. J. Q. B. (N. -S.), 98. - -[405] Jennings _v._ G. N. R., 1 L. R. Q. B., 7. - -[406] The State _v._ Goold, 53 Maine, 279; Chicago and Alton Rw. _v._ -Roberts, 40 Ill. 503. - -[407] Crocker _v._ New London, Will., & Pat. Rw., 24 Conn. 249. - -[408] St. Louis, etc., Rw. _v._ Dalby, 19 Ill. 353. - -[409] Jeffersonville, etc., Rw. _v._ Rogers, 28 Ind. 1. - -[410] Chilton _v._ L. & C. Rw., 16 M. & W. 212. - -[411] State _v._ G. T. R., 4 Am. Rep. 258; 58 Me. 176. - -[412] Jeffersonville, etc., Rw. _v._ Riley, 39 Ind. 568. - - - - - CHAPTER X. - - PLATFORMS AND ALIGHTING. - - Right to Safe Ingress, Egress, and Regress.--Defective Platforms.--The - Englishman and the C’mum cat’or.--Getting out of Cars.--Train not - at Platform.--Calling out Name; is it Invitation to alight?--Ladies - jumping.--Hoop-skirts.--Must have Safe Place to alight.--Leaving Train - in Motion. - - -“Well, here we are at last at H.,” said my friend who was learned in -the law. - -“Yes, now we have a chance of getting some grub (carefully collated -from the plates of those who were here before us), and taking the -epidermal covering off the interior of our mouths with a scalding -decoction dignified by the name of tea,” I replied. - -“Ding-dong-all gone--come along--one-all,” sounded forth the bell of -the refreshment-room, as the train drew up to the platform, and all -the weary travellers sprang up eager to stretch their limbs and to -replenish the inner man. Out they rushed. Night had thrown her sable -mantle (she has no other except for moonlight wear) over nature’s -tired bosom, so some of our fellow travellers, in the gloom, were -precipitated into a hole in the platform, which the company carelessly -suffered to be there--yawning open-mouthed--unmindful of the fact that -passengers have the same rights to safe ingress, egress, regress, and -progress over the stations and platforms at the intermediate places -where the trains stop for refreshment, as they have at the termini of -the line;[413] although it would appear that where a stoppage is made -only for the purposes of the railway, and people are not expected to -get in or out, the rights of the travelling public and the liability of -the company are both greatly curtailed.[414] As soon as one procures a -ticket he is to be regarded as a passenger, and is entitled to a safe -passage to his seat.[415] - -Though the unfortunates kissed mother earth, they were not seriously -damaged; one indeed--as a medical witness afterwards put it--suffered -“from a severe contusion of the integuments under the left orbit, -with a great extravasation of blood and ecchymosis in the surrounding -cellubas, having also a considerable abrasion of the cuticle,” or, as -the judge in common-place Anglo-Saxon expressed it, “had a black eye.” -Soon comestibles of all sorts, kinds, and descriptions were vanishing -rapidly by means of down grades into sub-waistcoat and sub-bodice -regions. - -When we had finished our repast, the train still seemed -quiescent,--appeared as motionless as a painted ship upon a painted -ocean,--so it was suggested that a little of something slightly -stronger than tea might not be unpalatable; but, alas! spirits were -tabooed on the line, so there was nothing for it but to make a foray -into the adjoining neighborhood for additional stimulants. A porter -kindly showed the way to a public house on the opposite side of the -highroad passing the station. We were soon all practising with great -success at the bar, but while enjoying ourselves to the full, the -engine-bell rang out sharp and clear on the frosty air. Off we all -rushed helter-skelter, and to save time, instead of returning by the -way we came, we took what we thought was a bee-line for the station -lights (but which turned out to be the engine’s) across some unfenced -ground. Before we well knew where we were we were all tumbling -pell-mell, one over the other, into a wide ditch some three feet -deep. However, we gained the cars in time, and then one of our chance -acquaintances--who, having been leading in the race, went down first -and was trampled upon by the rest--found that his arm was badly hurt; -so the Q. C. and myself tried to console him with the assurance that he -was safe to recover a verdict against the company if he only entrusted -his case into the hands of either of us, for a railway company is bound -so to fence its station that the public will not be misled, by seeing a -place unfenced, into injuring themselves by passing that way, it being -the shortest road to the platform.[416] (Though by the way, a Canadian -court has considered that companies are not responsible if parties come -to grief through taking short cuts, if the proper way of ingress and -egress to the station is safe, convenient, and well-lighted;[417] but -in another case a man who broke his leg in two places by falling into -a culvert, constructed by the company in the highway, while leaving -the station on a dark and stormy night, got $2,000 damages.)[418] The -neglect properly to light a station, or to have a sufficient corps -of servants to aid passengers in alighting at night, is evidence of -negligence.[419] - -Thinking that the man was an American citizen, I told him that Mr. C. -J. Dillon, of the State of Iowa, had said on a comparatively recent -occasion that “railway companies are bound to keep in a safe condition -all portions of their platforms and approaches thereto to which the -public do and would naturally resort, and all portions of their -station-grounds reasonably near to the platforms, where passengers, or -those who have purchased tickets with a view to take passage in their -cars, would naturally or ordinarily be likely to go.”[420] - -“And, my dear sir,” said the Q. C., who, more observant than myself, -had noticed a pile of H’s accumulating in front of the man, “there is -a much stronger English case, where one Martin arrived at a station -less than two minutes before the time for the train to leave, and while -running along the line--in a place where he should not have gone--in -order to reach the train which was a little ahead, he stumbled over -a switch handle, fell on his elbow, and was considerably hurt. The -jury considered that the company had been guilty of negligence and -want of proper care, and gave Martin £20, and the court would not -interfere.”[421] - -“Vell, hi think the Hinglish case is the one for my money,” quoth our -new found friend. “Hand hi’ll rub my harm with a little hof this to -prevent any ’arm,” he added, producing a pocket comforter that Job -never knew of. - -“Don’t waste good stuff that way,” said Mr. Smith. “Apply it -internally, and rub your arm with the bottle.” - -“Ho-ho-ho!” laughed John Bull at the wretched joke, which doubtless was -first perpetrated “when the Memnonium was in all its glory.” He took -the advice, however, and the brandy with a vengeance. - -Some little while after I saw him steadying himself as he stood up on -the seat, and poking with his stick at the top of the car: supposing he -was striving to open the ventilator, I paid little attention to him. -In a few minutes the train suddenly stopped,--in a few seconds more the -conductor came rushing into the car, excitedly asking if any one had -pulled the rope or communicator. - -“C’mum ’cat’or?” asked J. Bull, “I wang the bell for some bwandy -’n-vater. And dooced ’ard work hi ’ad to reach hit. Where’s the -’andle?”[422] Speedily the train was again under weigh. - -At length, after several hours more of journeying we arrived at our -destination, thankful that as yet all bones were safe and sound. Alas, -I was hallooing before I was out of the wood, for as I emerged, the -light being very dim, I fancied I was stepping on the platform, but as -I landed violently on the ground I found that the car was some feet -beyond the platform. Of course railways should bring their trains to -a halt at places convenient for passengers to alight. Bringing a car -to a solemn stand-still at a spot at which it is unsafe to get out, -under circumstances which warrant one in believing that it is intended -he shall alight and that he may do so in safety (without giving him -warning of his danger), amounts to negligence on the part of the -company, for which an action may be maintained if the passenger has not -in any way contributed towards the accident.[423] This highly sensible -rule was adopted in the case of one Praeger, where--as I afterwards -found--Lord Chief Justice Cockburn, of Geneva award renown, said: “I -adopt most readily the formula which has been suggested as applicable -to these cases, viz., that the company are bound to use reasonable care -in providing accommodation for passengers, and that the passengers -are also bound to use reasonable care in availing themselves of the -accommodation provided for them.”[424] Of course, if it had been -daylight, and I could have used my eyesight to any practical purpose, -and had noticed that the car was not in the ordinary position with -regard to the platform, I would certainly have exercised a little more -caution in getting out and not have been such a ninny-hammer as to step -down in the way I did, for I can assure the general public, that it is -anything but agreeable to step upon thin air and be thrown violently -upon one’s nasal organ,--which always seems tremendously projecting -on such occasions,--abrasing one’s elbows and knees. t As I had my -homeward journey to perform by rail, and there seemed a chance of my -being reduced to an atomic condition before I once again saw the wife -of my bosom, I then, for the benefit of my numerous readers (for, of -course, I meant to publish a book, as every one does nowadays), dotted -down a few decisions which I thought migh be useful for them to bear -in mind in case they ever came to grief in alighting from a railway -train; and here they are _pro bono publico_. - -(N. B.--Those frivolous persons who only read to pass the time, had -better turn at once to the next chapter.) - -Where the train overshot the platform so that the car in which one -Whitaker was sitting stood opposite to the parapet of a bridge, the -top of which in the dusk looked like the platform; the porters having -called out the name of the place, W. getting out on the parapet in the -_bonâ fide_ belief that he was stepping on the platform, fell over and -was injured, but recovered from the company. Bovill, C. J., held that -on this occasion there was a clear invitation to alight at a dangerous -place, and that W. was misled by the appearance of the parapet, and so -distinguished the case from the Bridges one, to which I will refer in -a moment or two.[425] Where in the dark, a passenger on alighting fell -into a culvert, over which the car had stopped, the company were held -liable.[426] - -Owing to the length of the train in which a Mr. and Mrs. Foy were -journeying, there was not room for all the cars to be drawn up at the -platform, and some of the passengers were desired to get out upon the -line beyond it. The distance from the carriage to the ground was only -three feet; Mrs. F. (instead of sensibly availing herself of the two -steps of the carriage) with the aid of Mr. Foy jumped from the first -step to the ground, and--not being a practised athlete or gymnast -but a sweet little thing--came down upon the ground like a barrel of -sugar with such a thud that the vertebræ of her back were jarred and -the spine injured. The jury found that the company were guilty of -negligence in not providing reasonable means of alighting, and that the -lady had not contributed to the accident, and they gave her £500 to pay -her doctor’s bills; and the court considered the verdict warranted and -declined to interfere with the damages.[427] Bovill, Q. C., urged that -if the lady, instead of jumping as she did, had turned herself round -and availed herself of the assistance of both steps and of the handles -of the carriage, the accident would not have happened; but Williams, -J., said severely that “in the present fashion of female attire, the -mode of descent suggested by the learned counsel would be scarcely -decent!” This judgment was given in 1865, and as fashions change two or -three times a year, one can hardly decide what a lady might or should -do in this present year of grace, especially as the virtuous judge did -not insinuate wherein in such a descent would lie the lack of woman’s -crowning glory, modesty. - -While speaking of ladies and their attire I may mention that Mrs. -Mary Poulin, while alighting from a Broadway car, with her youngest -hopeful in her arms, caught her steel hoop-skirt upon a nail in the -car platform; this threw her down, and she was dragged some distance, -and seriously injured and greatly frightened. The company tried to -escape liability by the ungallant plea that hoops were not a necessary -article of female apparel and that if Mrs. P. was determined to wear -such inflated skirts she ought to have exercised more care than is -required of a brother in sit-upons; the court, however, differed from -the company, and considered that the fair lady had been guilty of no -negligence, and that if the railroad carried passengers adorned with -crinolines they must see to their safety.[428] - -Old Siner and his wife arrived in daylight at Rhyl Station and the -carriage in which they were overshot the platform; the passengers were -neither told to keep their seats nor to get out, nor did the train -move until it started on its forward journey. After exhausting his -stock of patience, S. following the example of his fellow travellers -alighted, without asking the company’s servants to back the train to -the platform or holding any communication with them whatever. The wife -then, standing on the iron steps of the carriage, grasped both her -husband’s hands and jumped down, straining her knee in the act. She -did not use the footboard. There was no evidence of any carelessness -or awkwardness except what might be inferred from these facts. In an -action brought against the company for this injury, the court held -(Kelly, C. B. _diss._) that there was no evidence of negligence in -the defendants, and that the accident was entirely the result of the -woman’s own act in awkwardly and carelessly jumping.[429] The _Foy_ -case was distinguished, as there an express invitation to alight was -given. - -Where a gentleman, the corneas of whose eyes were far more convex than -those of the generality of the genus _homo_, knowing well the station, -got out of the train while the carriage in which he had been sitting -was still in a tunnel, and in making his way to the platform stumbled -over some rubbish and fell, breaking his leg and otherwise injuring -himself so that he shortly died from the effects, it was held by the -House of Lords (reversing the decision of the court below) that the -train having come to a stand-still, the calling out the name of the -place was an invitation to alight, and that the company’s servants -calling out afterwards “Keep your seats,” showed that it had been -improvidently uttered, and therefore furnished evidence of negligence, -and that the personal representative of Mr. Bridges was entitled to -recover against the company.[430] The shortsightedness of the deceased -imposed no additional duties on the company. In another case the court -thought that the conduct of a traveller, who fell down between the car -and the platform, which curved gracefully back from the line, amounted -to contributory negligence and so made absolute a rule to enter a -nonsuit.[431] - -In Bridges’ case it was unanimously held by the whole court, that the -calling out the name of a station is not in itself an intimation to -the passengers to alight; whether it is so or not must depend on the -circumstances of each particular case. Willes, J., said, “Nobody who -travels by rail who has a head on his shoulders would ever say that -calling out the name was an invitation;” but many a man with a head -on his shoulders, and with something in that head too, acts as if he -did,--indeed C. J. Redfield says that Bridges only did what the great -majority of men would have done under similar circumstances. (In fact -Redfield considers that in the late cases the English courts have -overstrained things in favor of the companies.)[432] Baron Cleasby -thought that in reality the stopping of the train at the station is -the invitation to alight. Bovill, C. J., said that whether calling -out was a request to get out or not was a question for a jury.[433] -In a late case Mr. Justice Blackburn gave it as his decided opinion, -that calling out the name is merely an intimation to all on the train -that the place at which the cars are about to stop is that particular -station named; and he adds (most truthfully) that every person must -have heard porters at stations call out something which, if the -traveller happens to know the name of the place, is recognizable, -but if the name is not known, no reliable information is gained from -the porter’s cry.[434] In a still later case it was said that the -train having overshot the platform and the name of the place having -been called out, the omission of the company’s servants to caution -passengers not to alight until the train had been brought up at the -proper place was evidence of negligence, or according to Honeyman, J., -negligence itself.[435] - -Companies are bound to provide platforms, or safe places of deposit, -for passengers to alight on at their stations and to deliver them -there. If there is any difficulty in the passengers’ getting out, -the officers should assist them to do so.[436] If the place where -one is required to alight is in fact dangerous, it is his duty to -request the train to be put in its proper place; and this is a request -which no station-master would venture to refuse, knowing the risk -he would incur if an accident happened through his refusal. If the -defendants will not place the train properly, the plaintiff should stay -in the carriage. So, at least, said the judges in Siner _v._ Great -Western Railway (_supra_);[437] but we can well imagine the surprised -look--tinged strongly with scorn--of a conductor upon any one of our -Cis-atlantic railways, were he asked to move his train forwards or -backwards merely for the convenience of his living freight. - -If a man persists in getting off a train while it is in motion, -especially if he has been warned by the conductor not to do so, he -has no claim against the company for any damage he may receive in the -act;[438] and so when one attempted to get on a train while moving -and was killed in the attempt, it was held, as a matter of law, that -no recovery could be had.[439] But otherwise where one lost his life -in jumping off by the direction of the conductor.[440] The courts of -Mississippi have laid it down clearly that it is the duty of railway -companies to announce audibly in each car the name of the station -reached and then allow sufficient time for the passengers safely to -leave the carriages; and that on the other hand it is the duty of the -passengers to use reasonable care, and to conform to the customs and -usages of the company so far as they know and understand them.[441] -If a company through neglect of their duty expose a passenger to -obvious peril, or grave inconvenience, and the traveller to escape -the threatened peril, or inconvenience, does something that is not -obviously dangerous (although it may be the cause of the injury) the -company will be liable.[442] - -Where a man is so drunk that he cannot take care of himself, if the -conductor is aware of it, he must bestow upon him the requisite degree -of attention to save him from injury;[443] and so when a traveller is -sick. - -Ah me! I fear that this long dilating will cause my Diary to be sent - - To bind a book, to line a box, - Or serve to curl a maiden’s locks. - - -FOOTNOTES: - -[413] McDonald _v._ Chicago, etc., 26 Iowa, 124. - -[414] Frost _v._ Grand Trunk Rw., 10 Allen, 387. - -[415] Warren _v._ Fitchburg Rw., 8 Allen, 227. - -[416] Burgess _v._ G. W. R., 32 L. J. 76. - -[417] Walker _v._ G. W. R., 8 U. C. C. P. 161. - -[418] Fairbanks _v._ G. W. R., 35 Q. B. (Ont.), 523. - -[419] Patten _v._ Ch. & N. W. Rw., 36 Wis. 413. - -[420] McDonald _v._ Chicago. etc., 26 Iowa, 124. - -[421] Martin _v._ Gt. Northern Rw., 16 C. B. 179; and see the case of -stumbling over the hampers, Nicholson _v._ Lancashire & York Rw., 3 -Hurl. & C. 534. - -[422] See _Punch_ for February, 1874. - -[423] Cockle _v._ London & S. E. Rw. Co., L. R., 7 C. P. 721 (Ex. Ch.). - -[424] Praeger _v._ Bristol & Exeter Rw., 24 L. T. (N. S.) 105. - -[425] Whitaker _v._ Manchester & S. Rw. Co., L. R., 5 C. P. 464. - -[426] Col. &. Ind. C. Rw. Co. _v._ Farrell, 31 Ind. 408. - -[427] Foy & Wife _v._ London, B., & S. C. Rw. Co., 18 C. B. (N. S.), -225. - -[428] Poulin _v._ Broadway, etc., Rw., 34 N. Y. Sup. Ct. 296. - -[429] Siner _v._ G. W. R., L. R., 3 Ex. 150. - -[430] Bridges _v._ North London Rw. Co., L. R., 6 Q. B. 377. In appeal -L. R., 7 H. L. 213. - -[431] Praeger _v._ Bristol & Exeter Rw., L. R., 5 C. P. 460, n. 1; also -Plant _v._ Midland Rw. Co., 21 L. T. (N. S.), 836; and Harrold _v._ -Great Western Rw., 14 L. T. (N. S.), 440. - -[432] Redfield on Railways, vol. ii., p. 264. - -[433] Whitaker _v._ Manchester & S. Rw., L. R., 5 C. P. 464. - -[434] Lewis & Wife _v._ London C. & D. Rw., L. R., 9 Q. B. 69; Cockle -_v._ London & S. E. Rw., L. R., 5 C. P. 457 (Ex. Ch.), distinguished. - -[435] Weller _v._ London, Brighton, & S. C. Rw., L. R., 9 C. P. 126. - -[436] Memphis & Charleston Rw. _v._ Whitfield, 44 Miss. 466; Robson -_v._ N. E. Rw., L. R., 10 Q. B. 271. - -[437] See also, Memphis & C. Rw. _v._ Whitfield, 44 Miss. 466. - -[438] Ohio & Miss. Rw. _v._ Schiebe, 44 Ill. 460. - -[439] Knight _v._ Ponchartrain Rw., 23 La. Ann. 462. - -[440] Lambeth _v._ North Carolina Rw., 66 N. C. 494. - -[441] Southern Rw. _v._ Kendrick, 40 Miss. 374. - -[442] Adams _v._ Lancashire & Y. Rw., L. R., 4 C. P. 744. - -[443] Giles _v._ G. W. R., 36 Q. B. (Ont.) 360. - - - - - CHAPTER XI. - - BAGGAGE. - - Gone.--Company liable for Lost Baggage.--Carelessness of - Owner.--Checking.--What is Baggage?--Papers.--Spring-horse.--Household - Goods going West.--Luggage left in Cloak-room.--Limitation - of Liability.--Taking Change.--Railroad Police.--Beauties of - Checks.--Fall of a Window.--Legs and Arms outside.--Officials - squeezing Fingers.--Stern Boreas. - - -Misfortunes never come singly, for birds of a feather flock together. -Scarcely had I got to the hotel and begun ruefully examining -the discolorations on my nether limbs and putting a piece of -sticking-plaster on the top of my proboscis, when a thought struck me, -and really hurt me, so that I involuntarily exclaimed, “Why, where’s -my bag?” Of one thing I was soon satisfied, namely, that it was not -there. I ran my fingers through my hair to let the cooling air as near -as possible to my heated brain, and after mature reflection came to the -conclusion that I had seen nothing of it since I had left it in the car -while I went out after those refreshments already referred to; for on -my return, finding in my seat a lovely girl, with long dark eyelashes, -soft tender dark-blue eyes, a bewitching smile, and dimples which -rippled round her ruby lips as she talked and laughed with a young -fellow of a vinegar aspect who sat beside her, I had located myself -elsewhere. Both these individuals had got out at the next station, but -I had never again noticed, or even thought of, my bag. - -When I met the Q. C. in the dining-hall I told him of my loss. - -“What had you in your bag?” he inquired, with the air of a man who -thought that he knew a thing or two about lost luggage. - -“Nothing but my brushes and razors, pen and ink; some shirt-fronts -_alias_ dickeys, and other clothing.” - -“Ah well! you are all right! you can easily recover the value of the -waifs and strays from the company; for all those things have been held -to be such personal baggage as a traveller has a right to carry with -him.[444] Have you got your check?” he added. - -“No. It was not checked. I carried it into the car with me, and left -it to keep my place when we got out for refreshments, and it was gone -before I got back into my seat--at least I have not beheld it since.” - -“_N’importe!_ as the frog-eaters say. You are entitled to recover, for -your ticket gives you a right to be carried with your luggage;[445] -and a by-law to the effect that a company will not be responsible for -baggage unless booked, has been held bad in England.[446] Of course, -if you had kept exclusive control over your bag, the company would not -ordinarily be liable.[447] And when a man has his traps taken into the -car with him for his own convenience he impliedly undertakes to use -reasonable care; and if one were to leave his portmanteau in one car -while he went and travelled in another, and the portmanteau was rifled, -he could not recover for his loss;[448] nor, if he stupidly forgot to -take his overcoat with him, when he left the train.”[449] - -“I had an idea,” I said, “that a Canadian judge had expressed an -opinion to the effect that the system of checking in vogue in this -enlightened country was notice to passengers that all articles must be -checked or handed to the company’s servants, except what they desire or -prefer to keep under their own personal care and at their own risk. Did -you ever meet with such a dictum or decision?” - -“Oh yes, I noticed the case only the other day. Morrison, J., did speak -to that effect, but he was overruled, and Draper, C. J., said that -he considered checking only as additional precautions taken by the -company, beyond what is customary in England, in order to prevent the -luggage from being given up to the wrong person; that the company would -be liable for a loss in case no such means of checking was in use, and -if, notwithstanding, a loss occurs, the liability is unchanged, in the -absence of express notice on their part that they will be responsible -only for articles checked.[450] By the way, were there any papers in -your bag?” - -“No; they were all in my pocket. I have not many with me, and I -remember seeing it decided that title deeds, which an attorney was -carrying with him to produce on a trial, were not baggage for the loss -of which a carrier would be responsible.”[451] - -“Prudent man!” replied my friend, as he turned on his heel and departed. - -What I did at the place where I now was concerns nobody except those -who had the pleasure of paying my travelling expenses to and fro and my -hotel bill while there. To dilate with any particularity on the subject -might lead one into a breach of that well-established rule concerning -privileged communications between attorneys and their clients. - -At length my labors were at an end and I was at perfect liberty to -return to my _Lares et Penates_ at my earliest convenience. My readers -must not suppose, from the fact that my bag and baggage had been lost, -that I was acting the Nazarite all this time; no indeed, I had bought -all the necessary articles of a gentleman’s toilet and some changes of -raiment, and with these in a brand new valise I was ready to start _en -route_ for the place whence I had come forth. - -I was rather amused, while awaiting the arrival of my train at the -station, by a controversy between what was evidently a “fond parient” -of rural origin and the baggage-master. The father had invested in -a spring-horse for his youthful son and heir to exercise upon; the -creature was forty-four inches long and weighed seventy-eight pounds. -The man wished it passed as luggage. - -“No, you will have to pay freight for this,” said he of the chalk and -checks. - -“But I have nothing else, and I am certainly entitled to carry -something,” urged the man. - -“Yes,” returned the other, “you are entitled to take your personal -baggage with you; but if you have none, that does not give you the -right to take other things instead,[452] and a horse of this color is -personal luggage by no manner of means.”[453] - -Just then a friend came up to me and asked what was included in the -personal baggage which a man was entitled to take with him, free of -charge. I said:-- - -“My dear sir, that is a question which has often pressed itself -seriously upon the consideration of a contemplative traveller and -philosophic jurist like myself, when on entering a crowded train I have -found one half of the seats occupied by ‘stern realities’ or bipedal -extremities, and the other half by bundles and bandboxes, nursery -paraphernalia, and the oleaginous and saccharine products of the -kitchen and the cook-shop; and also when I have considered how gravely -the question has agitated courts of justice. One of our own learned -judges has forcibly remarked that ‘the authorities and references show -it is much easier to say what is not personal or ordinary luggage, than -it is to decide what it is which a carrier is bound, or which it is -usual for him to carry along with his passengers.’” - -“You have made a long oration, but have not answered my question; just -like you lawyers, always darkening counsel by words.” - -“State your question more definitely,” I remarked. - -“Well, then, there is a poor man here, moving West with his family. -He has a bed, pillows, bolsters, and bed-quilt in a trunk, or a box, -with his clothes; he is carrying them for his own use. Should he be -compelled to pay freight on them? He says that he has no money; and I -don’t want to see the poor beggar put upon.” - -“Yours is a question which I cannot definitely answer. In England, it -was decided that such things were not personal baggage.[454] In Vermont -it was held a matter for a jury to pronounce upon, after considering -the peculiar circumstances, the value, the quantity, and the intended -use of the articles.”[455] - - “‘He would not, with a peremptory tone, - Assert the nose upon his face, his own; - With hesitation, admirably slow, - He humbly hopes, presumes it may be so.’” - -said my friend mockingly, and then added pepperishly, “You -unsatisfactory lawyers will never give a sensible reply to the simplest -question.” - -“Granted. But yours was not the simplest question. Were an ordinary -layman like yourself to read but a tithe of what has been written on -the moot point of personal luggage or not, you would be a sadder, if -not a wiser man than you now are; so voluminous are the decisions, that -a Saratoga trunk would fail to contain all.” - -“Well, you are not luminous anyway. - - “‘Lawyers each dark question shun - And hold their farthing candle to the sun.’ - -I’m off to get my traps in the cloak-room.” - -“I’ll go with you,” I replied. - -When we got to the room we found the door locked, and that the man in -charge was off for an hour or so. - -“Well, that is a pretty how-do-ye-do; my train will be going in a few -minutes, so what am I to do?” - -“Have you got a ticket for your baggage?” I inquired. - -“Yes, and paid tuppence for it. Here it is.” On the back of it were -some printed conditions, but nothing was said as to the hours the -cloakroom was kept open, or at what time the box was to be re-delivered. - -“It is clear,” I remarked, “that the company is bound to give you your -box on your reasonable request, and at any reasonable time.”[456] - -“But what good does that do me, if they are not here to give me my -things now? I must go on whether I get them or not.” - -“You can sue them,” I remarked. - -“All very fine, but I have a case of patterns which I need with me; and -suppose it is lost?” - -“Well, of course, you can’t recover damages beyond the actual value of -the goods. No warehouseman is responsible beyond the actual value of -the article lost or damaged, unless there was a special contract.[457] -What was the value?” - -“Thirty or forty pounds.” - -“What!” - -“Can’t you hear? I say thirty or forty pounds.” - -“Well, I am very sorry for you. Did not you see the notice on the -ticket that ‘the company will not be responsible for any package -exceeding the value of £10.’” - -“Oh, but I did not read that.” - -“The legal inference, however, is that you did read it, and did assent -to it; and so I am afraid that the company, in case of a loss, will -not be liable as your goods exceed the prescribed limit.[458] For the -same reason they may also be excused for delay in redelivering them, at -least if such tardiness is not caused by any wilful act or default of -their own, and is without their privity or knowledge.[459] Samples and -patterns are not considered personal baggage.”[460] - -“Many thanks for all your information. I think I can see my box through -this crack, and here comes the man with the key; so I am all right.” - -“Well, good-by! there’s my train, anyway, so I am off. Don’t forget you -owe me a fee for this.” - -As I was passing into the car, I saw a crowd gathered round -the ticket-office, and an unfortunate man--quite respectably -habited--struggling in the clutches of a policeman. I made inquiries -as to the cause of the arrest and was told that the prisoner had been -buying a ticket at the office, and in giving change the clerk handed -him two sous, a French piece; the man, whose name was Allen, objected -and demanded a British penny in its place, and as the clerk would not -take back the sous, Allen determined to help himself. The bowl of the -till containing copper coins appearing to be within easy reach he put -in his hand to get the money. Upon this the agent raised the hue and -cry, summoned the conservator of the peace on duty and gave A. into -custody on the charge of attempting to rob the till. It seemed rather -a hard case, as the poor fellow was only trying to help himself to his -change. (Being dubious as to what would be the upshot of the affair I -bore the matter in mind, and after the usual time required for issuing -a writ, bringing a case to trial, moving in term and giving judgment, -I discovered that in the action brought by A. against the company for -false imprisonment it was held, that as the arrest, after the attempt -had ceased, could not be necessary for the protection of the company’s -property, but was merely to vindicate justice, the clerk had no implied -authority to arrest the man; his authority only extended to the doing -of such acts as were necessary for the fulfillment of the duties -entrusted to him, and that the company was, therefore, not liable for -the act of the clerk, nor for that of the policeman who took A. into -custody. Blackburn, J., was inclined to think that if a man in charge -of a till were to find that a person was attempting to rob it, and he -could only prevent his stealing by taking him into custody, he might -have an implied authority to arrest the offender; or, if the clerk had -reason to believe that the money had been actually stolen and he could -get it back by taking the thief into custody, and he took him up for -that purpose, it might be that that also would be within the authority -of the clerk.[461]) - -A man standing by me asked how it was that the policeman had not on -the same style of garments as those of his fellows who perambulate in -blissful ease and quiet serenity the city streets. I told him that -railway companies had power to appoint constables to act on their -lines for the preservation of peace, and securing persons and property -against felonies and other unlawful acts on such railways and their -works, and in all places not more than a quarter of a mile distant -therefrom, and to take before a justice of the peace any person guilty -of an offence punishable by summary convictions under any act or -by-law.[462] - -This time I had my _impedimenta_ checked, and thus was relieved of the -trouble of carrying them in and out of the car. All the world knows -that the possession of a check is evidence against the company of the -receipt of the baggage. The piece of metal has been compared to a bill -of lading, in fact said to be identical therewith.[463] It is always -the source of great wonderment to me that the British public do not -insist upon the British railways introducing the system on their -lines; the continental plan of registering, though far in advance of -the English, is still much more troublesome than the simple process -of checking, and very expensive. How convenient is our enlightened -plan, when one has to change cars _en route_: no trouble looking after -baggage; one simply has to walk out of one train into the other, ticket -for the whole journey and checks in your pocket, and if your traps are -lost, you can sue either or any of the companies.[464] - -The car being rather crowded, the atmosphere soon became rather close -and stifling. A gentleman, after a considerable amount of coaxing, -pushing, shoving, and pulling, persuaded one of the windows to allow -itself to be lifted up to admit the sharp, clear, exhilarating winter’s -air. The person who opened the window got out and another got in and -took his seat beside it, and carelessly allowed his left hand to rest -on the ledge. As the train approached a station, the breaks were -suddenly put on, and the vibration caused the window to fall athwart -the man’s fingers, inflicting a serious injury thereon. Aroused and -attracted by the grunting and groaning, adjurations and exclamations -of the injured one, some officious people came round him, advising and -urging the poor fellow to sue the company, for that they were bound to -provide windows with good fastenings for the comfort and protection of -passengers. I merely said, that without positive proof of the defective -construction of the window, the mere falling would not make a _primâ -facie_ case of negligence against the company, as a Mr. Murray found -when he sued a London railway company for exactly a similar injury.[465] - -Some people seem to be possessed of limbs which do not appear to belong -to them of right, and with which they never seem to know exactly what -to do; and such uncomfortably constituted mortals are very apt to -stretch their heads, or legs, or arms, out of the windows of railway -carriages, having no other improper place to put them when travelling -by rail; to such eccentric genii I would remark, that if they are -injured while in this position, they will not be able to recover -damages against the company, for the negligence is their own, and the -company is not bound to put bars across its carriage windows as careful -matrons do over their nursery panes.[466] It was once held that a -company, in order to save the upper extremities of their passengers, -was bound to provide wire gauzes, bars, slats, or other barricades for -the windows,[467] but this fatherly decision has been overruled.[468] -Mrs. Holbrook found this to her cost when she had her arm broken (it -was projecting from the window) by something coming against it as they -were passing other cars on another track.[469] In the State where the -principles of brotherly love prevail, or are supposed to, it was held -that when passengers are liable to have their arms, if lying outside -the windows, caught in passing bridges, the conductors should give them -notice to put them effectually upon their guard, or the company will be -liable for injuries, and printed notices are not sufficient.[470] - -Talking about squeezing fingers--a decidedly unpleasant thing to the -squeezee, when not done by the human hand divine--railway officials are -not allowed, as a rule, to apply extempore thumb-screws and pinch a -man’s digits in the door. This has been solemnly decided by the Court -of Common Pleas, at Westminster Hall. One Fordham was in the act of -getting into a railway carriage, of the usual English make with doors -at the sides opening outwards; having a parcel in his right hand, he -very naturally placed his left on the open door to aid him on entering. -The guard, without giving any previous warning, flung to the door -with a slam. F. having just at that moment his fingers where the door -should meet the door-plate, and they possessing that quality of matter, -compressibility, he had them badly crushed. The Court of Common Pleas -and the Exchequer Chamber, thought that the guard had been guilty of -carelessness, and that Fordham had done nothing to contribute thereto, -and so gave the latter damages against the railway company.[471] Mr. -Jackson made £50 out of his ride from Moorgate Street to Westbourne -Park by the underground railroad. The compartment in which he was -seated was full, but at Gower Street two more got in despite our -friend’s remonstrances. At the next station others tried to enter (the -door having been opened), but were prevented by those in possession. -The door remained unshut as the train passed along the platform, but -just as it entered the tunnel the porter slammed it to, and jammed -Jackson’s hand in the hinge. The court considered that all these facts -showed such a careless and improper mode of conducting business that -Jackson was entitled to keep the little sum mentioned.[472] - -In another case, however, where a porter after he had called out, -“Take your seats--take your seats!” squeezed a man’s thumb in shutting -the door, the same court considered that the official had closed -the door in the ordinary and proper exercise of his duty, and that -Mr. Richardson had only to thank himself for his want of caution in -leaving his member where it might be so easily crushed.[473] - -To return from this digression, which my readers will probably have -found as dull and heavy as most wanderings of that nature. Before many -hours had passed, thick heavy clouds began to send across the sky; the -wind sighed and moaned mournfully around the car; Boreas came raging -from the icy regions of the North, and the snowflakes whirled wildly in -ever-thickening clouds--as a Longfellow would have said had he been on -board that express train:-- - - Ever thicker, thicker, thicker, - Froze the ice on lake and river: - Ever deeper, deeper, deeper, - Fell the snow o’er all the landscape, - Fell the covering snow and drifted - Through the forest, round the carriage. - -Slowly and more slowly did the laboring engine, laden with its long -line of cars, make its way against the obstructing showers of feathery -ice-morsels, and fears arose in the hearts of the passengers that our -progress would soon be entirely stopped and we would be left to spend -the long cold night imbedded in the rapidly rising banks of snow. - -A lady, shivering as she gazed out into the now pitchy darkness, asked -me in quivering tones, what would be done if we came to a complete -standstill and the engine was unable to move at all? I replied:-- - -“If a line becomes blocked up and impeded by snow, the company is bound -to use all reasonable exertions to forward the passengers, although -that may put the company to extra expense which of course they have no -way of recovering from the travellers;[474] so I presume ere long extra -engines and snow ploughs will come to our rescue.” - -“It is to be hoped that the fuel will last,” said the lady. “How I pity -those poor cattle that we heard lowing so plaintively as we passed them -at the last siding,” she added tenderly. - -“Yes; no great efforts will be made for their convenience; if a -snow-storm comes, the company is not bound to forward them by -extraordinary means and at additional expense.”[475] - -“Poor things,” said my fair companion, who seemed - - A very woman; full of tears, - Hopes, blushes, tenderness, fears, - Griefs, laughter, kindness, joys, and sighs, - Loves, likings, friendships, sympathies; - A heart to feel for every woe, - And pity, if not dole, bestow. - -“Poor things, unless in the hereafter there is a place where the -spirits of animals be at rest, they have to bear a very heavy share of -the primeval curse, and pay dearly for Adam’s transgression and fall.” - - -FOOTNOTES: - -[444] Hawkins _v._ Hoffman, 6 Hill (N. Y.), 586; Duffy _v._ Thompson, 4 -E. D. Smith, 178. - -[445] Gamble _v._ G. W. Rw., 24 U. C. Q. B. 407; Le Conteur _v._ London -& S. W. Rw., L. R., 1 Q. B. 54. - -[446] Williams _v._ G. W. Rw., 10 Ex. 15; see also, G. W. R. _v._ -Goodman, 12 C. B. 313. - -[447] Tower _v._ Utica & Sch. Rw., 7 Hill (N. Y.), 47; and Wilde, J., -in Richards _v._ London, B., & S. C. Rw., 7 C. B. 839. - -[448] Talley _v._ G. W. R., L. R., 6 C. P. 44. - -[449] Tower _v._ Utica & Sch. Rw., _supra_. - -[450] Gamble _v._ Great Western Rw., 24 U. C. Q. B. 407. - -[451] Phelps _v._ London & N. W. Rw., 19 C. B. (N. S.), 321. - -[452] Pardee _v._ Drew, 25 Wend. 459. - -[453] Hudston _v._ Midland Rw., L. R., 4 Q. B. 366. - -[454] Macrow _v._ Gt. Western Rw. Co., L. R., 6 Q. B. 612. - -[455] Ouimit _v._ Henshaw, 35 Vt. 605. - -[456] Stallard _v._ Gt. W. R., 2 B. & S. 419; 8 Jur. (N. S.), 1076. - -[457] Anderson _v._ Northeastern Rw., 4 L. T. (N. S.), 216. - -[458] Van Toll _v._ Southeastern Rw. Co., 12 C. B. (N. S.), 75; 6 L. -T. (N. S.), 244; Harris _v._ G. W. R., W. N. June 10, 1876; but see -Henderson _v._ Stevenson, L. R., 2 S. & D. 470. - -[459] Pepper _v._ Southeastern Rw. Co., 17 L. T. (N. S.), 469. - -[460] Bayley _v._ Lancaster Rw. Co., 18 Sol. J. 301. - -[461] Allen _v._ London & S. W. Rw., L. R., 6 Q. B. 65. - -[462] Railway Act, 1868, § 49. - -[463] Dill _v._ Railroad Co., 7 Rich. 158. - -[464] Hart _v._ Rensellaer & Saratoga Rw., 4 Seld. 37. - -[465] Murray _v._ Metropolitan District Rw., 27 L. T. (N. S.), 762. - -[466] Indianapolis & Cincinnati Rw. _v._ Rutherford, 7 Am. Law Reg. (N. -S.), 476. - -[467] N. J. R. _v._ Kennard, 21 Penn. St., 203. - -[468] P. & C. Rw. _v._ McClurg, 7 Am. Law Reg. (N. S.), 277; -Pittsburgh, etc., Rw. _v._ Andrews, 39 Md. 329. - -[469] Holbrook _v._ Utica. & Sch. Rw., 12 N. Y. 236. - -[470] Laing _v._ Colder, 8 Penn. St. 483. - -[471] Fordham _v._ L. B. & S. C. Rw., L. R., 3 C. P. 368; 4 C. P. 619 -(Ex. Ch.); also, Coleman _v._ S. E. Rw., 4 H. & C. 699. - -[472] Jackson _v._ Metropolitan Rw., L. R., 10 C. P. 49. - -[473] Richardson _v._ Metropolitan Rw., L. R., 3 C. P. 374, n. - -[474] Addison on Torts, 3d ed. 448. - -[475] Briddon _v._ Gt. Northern Rw., 28 L. J., Ex. 51. - - - - - CHAPTER XII. - - DUE CARE. - - Snowed up.--Pacific Railway.--Passenger Carriers not - Insurers.--Company must use Due Care.--Defective Machinery.--Broken - Axle.--Company must account for Accident.--Difference between Goods - and Men.--What is Due Care.--Latent Defects in Cars.--English - Rule.--Rule in New York.--Moralizing.--Railroad Death-rate. - - -As the train came to a solemn pause in a deep cutting a number of us -gathered together in the warm and cosy Pullman, the _ne plus ultra_ -of railway cars, far surpassing in comfort and luxury an English or -Continental first-class carriage, though not adorned as are the Italian -cars with those abominations of the sterner sex--tidies for the head -to rest against. And here, each in turn related railroad adventures -and accidents; tales which excited laughter and joyous merriment, of -engagements, love scenes, marriage ceremonies, undress exhibitions -in sleeping cars; tales of sorrow and grief, collisions, explosions, -helpless people crushed, boiled, roasted to death; dozens plunged -into eternity in a moment by the simple derangement of a switch, the -starting of a rail, a flaw in a wheel, a sleepy pointsman, or a weary -telegraph clerk. - -One told that, in India, railroad traffic is seriously affected by -the stagnation of the matrimonial market, a wedding there being an -occasion of great pomp and the gathering together of friends; that -the railways are breaking down the castes, as the conductors tumble -into the same car proud, lofty, blue-blooded Brahmins, poor despised -Pariahs, blood-thirsty Thugs, sun-worshipping Parsees, and learned -Mussulmans; and go together these must, notwithstanding the dogmas of -Shasters, Vedas, and Korans, or else jump out and die. Another told -of having found nuggets of gold, the remains of melted jewelry, among -the charred and blackened remains of unfortunates consumed at the -Komoka (Ont.) accident. While a third in graphic terms described the -efforts made to break through a snow blockade on the Central Pacific; -the snow was a solid mass twenty feet high in front of the plough; ten -engines were at work; they backed up about a mile, then reversing made -a spring forward, locomotives shrieking and screeching, men yelling -and gesticulating, volumes of smoke pouring forth from every funnel -and hanging like a pall over the scene; the loud rumbling of the huge -iron-beaked monster flying over the track, the hissing, roaring din and -the chorus of shrieking demons behind made up a scene that would blanch -the boldest cheek. With the force of a thousand giants the plough -rushed upon the snow and hurled it in enormous masses, like mighty -billows, down the mountain sides, crushing through the lofty pines, and -glistening and gleaming like frosted silver as it fell upon the frozen -cataract below; but the charge was well nigh in vain. - -Thus with the flow of reason and the feast of soul passed some weary -hours. At last, one gentleman turning to me, said:-- - -“I believe that a carrier of goods is liable for his freight in every -event; is a carrier of passengers responsible to the same extent?” - -“No,” I responded, “all jurists are agreed that railway companies -are only liable for negligence, either proximate or remote, and not -for injuries happening to passengers from unforeseen accident or -misfortune, where there has been no negligence or default on the part -of the carrier;[476] still it is the bounden duty of a company to -use due and proper care and skill in conveying travellers; and this -duty laid upon them does not arise from any contract made between the -company and the persons conveyed by them, but is one which the law -imposes. If railways are bound to carry, they are also bound to carry -safely; it is not sufficient for them to bring merely the dead body -of their passenger to the end of the journey, and there deliver up -the remains, parboiled or cut into sausage meat, to his executors and -administrators.[477] The fact that injury is suffered by any one while -upon the company’s train, as a passenger, through any failure of the -means of safe transportation, is regarded as _primâ facie_ evidence -of their liability;[478] and such evidence, if not rebutted by the -company, will justify a verdict against them which a court will not set -aside.”[479] And having delivered myself of this harangue, I looked -around with a self-satisfied air and rubbed my hands with invisible -soap, in imperceptible water, _à la_ Tom Hood. - -“Yes,” said an engineer, “a company is bound to use the best -precautions in known practical use to secure the safety of their -passengers,[480] but not every possible preventive which the highest -scientific skill might have suggested,[481] nor every device which -ingenuity might imagine.[482] But it appears hard that a company -should be held liable--as they have been--for injuries arising from -a crack in the axle of a car indiscoverable by any practical mode -of examination,[483] and be bound to provide roadworthy carriages, -absolutely and irrespectively of negligence.” - -“Yes, that is the rule in New York State, but it has been somewhat -questioned in later cases, and in fact it was laid down that a company -is not responsible for injuries caused by _vis major_, as the breaking -of a rail through extreme cold.”[484] - -“Wal, strangers,” quoth a regular long, lean, lanky down-easter, “look -ye har, down in my State, a carrier is bound to use the highest degree -of care that a reasonable man would use.”[485] - -“That is substantially the same as the rule in the English cases,” I -said, “and has, I believe, been followed in most of the States, and in -the United States Supreme Court.”[486] - -“I presume,” said the machinist; “companies are liable for defects in -their cars whether they manufacture them or purchase them?” - -“Oh yes,” I rejoined, “the companies are alike bound to see that in -the construction no care or skill has been omitted for the purpose -of making their engines and cars as safe as care and skill can make -them.”[487] - -“I remember,” spake the man of science, “hearing of one case where the -engine ran off the track, and it was found that a fore-axle was broken, -but no evidence was given as to whether the accident caused, or was -caused by, the breakage; yet a traveller who had his shoulder contused, -and his hat crushed, and was rendered insensible for a time and sick -for a longer period by the accident, recovered a large sum against the -company.[488] And in another English case[489] an accident happened -from the breaking of the tire of a driving-wheel; the defect could -not have been discovered by the original testing, but _might have_ -been if it had been repeated when the tire was returned after being -considerably worn. The company was held liable. And so where the defect -might have been discovered when the car was mended, and it was sent on -without being thoroughly examined and repaired.”[490] - -“Yes,” said one who had not yet spoken, “I was on a jury in a case -against the Great Western of Canada. The axle of the tender had broken, -and the tender and a car went off the track, and a man who was in the -car had his arm broken. At the trial the company proved by the engineer -in charge of the train, that he had examined the axle shortly before -the accident and that all appeared in good order. The judge charged -in favor of the defendants, but we found a verdict for the plaintiff, -which the court refused afterwards to interfere with, as we were the -proper judges as to whether or not there had been negligence on the -part of the company.”[491] - -“I think that it was in that case that Chief Justice Macaulay -remarked, that the accident having happened unaccountably, and without -any proximate or active cause to account for it, constituting as the -cases say some evidence of negligence, it rested with the company to -explain and reconcile it with perfect innocence on their part. It has -been held, too, in England, that the plaintiff is not bound to show -specifically in what the negligence of the company consisted; but that -if some inevitable fatality caused the accident, it is for the company -to prove it.[492] In New York, too, the same view is taken.”[493] - -“Wal, stranger, what is yer law about this yer in the old country? Not -that I care three shakes of a dead possum’s tail about the old country, -and all yer lawyers and judges with their horse-tail wigs, but still I -calkerlate I kind o’ like to know what they do say on this here point; -as it appears to me that the great Amerikin eagle has got rather mixed -up.” And to add emphasis to his query, our friend of the land of wooden -nutmegs fired from between his teeth a perfect _feu de joie_ of extract -of nicotine. - -Thus appealed to, I cleared my throat, pulled up my shirt-collar, -crossed my legs, assumed as authoritative an expression of countenance -as Dame Nature ever permits me to do, and thus began:-- - -“So long ago as the days of Sir James Mansfield it was held[494] -that there is a decided difference between a contract to carry goods -and one to carry passengers. In the former case the carrier is liable -for his freight in any event, but he does not warrant the safety -of his passengers. His undertaking as to them extends no further -than this, that as far as human care and foresight can go he will -provide for their safe conveyance. So, if the breaking of a coach is -purely accidental the injured traveller will have no remedy for the -misfortune he has encountered. The contract made by a general carrier -of passengers is to take due care to carry his living freight safely; -and it does not amount to a warranty that the carriage or car shall be -in all respects perfect for its purpose, _i. e._, free from all defects -likely to cause a catastrophe, although those defects were such that no -skill, care, or foresight could have detected their existence.[495] The -obligation to use all due and proper care is founded on reasons obvious -to any one with a semi-optic; but to impose on the carrier the burden -of a warranty that everything he necessarily uses is absolutely without -spot or blemish and free from defects likely to cause peril--when from -the nature of things defects must exist which no skill can detect, -and the effects of which no care or foresight can avert--would be to -compel a man by implication of law and not by his own will to promise -the performance of an impossible thing, and would be directly opposed -to the maxims of law, ‘Lex non cogit ad impossibilia,’ ‘Nemo tenetur -ad impossibilia.’ [Here the audience coughed.] ‘Due care,’ however, -undoubtedly means (having reference to the nature of the contract -to carry) a high degree of care, and casts on carriers the duty of -exercising all vigilance to see that whatever is required for the safe -conveyance of their passengers is in fit and proper order. But the -duty to take due and proper care, however widely construed, however -vigorously enforced, will not, as that man Readhead sought to do, -subject a railway company to the plain injustice of being compelled by -law to make reparation for a disaster arising from a latent defect in -the machinery which they are obliged to use, which no human skill or -care could have prevented or detected, or eye descried unless of ‘the -patent double million magnifyin’ gas microscopes of hextra power kind’ -to which Mr. Weller, Jr., refers. In that case, the accident was caused -by the breaking of the tire of one of the wheels of the carriage, owing -to a latent defect in it, which was not attributable to any fault on -the part of the manufacturers, nor was it discoverable previously to -the breakage. The rule laid down in that case (Readhead’s) seems to -be that although the carrier of passengers may be responsible for -deficiencies caused by want of skill or care in the manufacture of -the carriages used, he is not to be so held when the defect could -not have been avoided in the making, or detected on examination. It -is so extremely improbable that such a case should happen, that the -practical difference between this and the New York rule of absolute -responsibility[496] is not of much importance, although the theoretical -difference is. But the rule in New York does not seem to be fully -approved of even on this side of the Atlantic.[497] The truth seems to -be that carriers of persons must be held to the utmost degree of care, -vigilance, and precaution, but not to such a degree of vigilance as -would be wholly inconsistent with the mode of conveyance adopted and -render it impracticable. Nor is the utmost degree of care which the -human mind is capable of imagining required. Such a rule would require -such an expenditure of money and employment of hands so as to render -everything safe, as would prevent all persons of ordinary prudence from -engaging in that kind of business. But the rule does necessitate that -the highest degree of practicable care and diligence that is consistent -with the mode of transportation adopted, should be used.”[498] - -I stopped; one universal sigh of relief uprose from those of my -listeners who were not nodding approvingly from the borders of -Dreamland. The Yankee said:-- - -“Wal, stranger, that was a yarn. I guess I’ll go and have a smoke, and -see if I can calkerlate what in blazes you did mean by all that long -pow-wow.” And he departed. - -“I think,” said the juror, “that the law ought to be the most stringent -possible in order to put a stop to such barbarous and inhuman sacrifice -of multitudes, such horrible mangling of bodies and limbs, such -frightful cases of burning alive and scalding to death that have -occurred so frequently of late.” - -“Yes, I hope that the day is not very far distant when all our courts -will hold, that all who undertake the transportation of passengers by -the dangerous element of steam, and with the great speed of railway -trains, are responsible for the use of every precaution which any known -skill or experience has yet been able to devise, and that passengers -need not judge for themselves how many of these precautions it is safe -to forego.”[499] - -“But,” urged another, “people now-a-days wish cheap and rapid -travelling in all directions and everywhere.” - -“Suppose they do; we do not allow monomaniacs or brigands to commit -suicide or murder without interference, because it is their pleasure -or their interest to do so; and I see no good reason why railway -passengers or railway managers should be allowed to roast a hecatomb in -human sacrifice, because it seems desirable or convenient to the one or -the other class concerned in the immolation, or because the one class -demands and the other consents, to use a mode of transportation which -inevitably produces these results.”[500] - -“Ah,” said a lady, “I fear these dreadful accidents will continue until -every train is compelled to carry a director of the company, or a -general manager, upon the cow-catcher; experience will then soon induce -them to be a little more careful of the bodies and lives of others.” - -“But, sir!” said the scientific gentleman, a precise man of figures, -“I fear you exaggerate when you speak of hecatombs of sacrifices. I -believe that in proportion to the numbers carried the accidents to -passengers in the good old days of stage-coaches were, as compared -with these days of railway dispensation, about as sixty to one. -Reliable statistics in France prove this. Figures, which you know -are proverbial for their truth, show that absolutely more travellers -were yearly killed and injured, without fault of theirs, fifty years -ago on stage-coaches, than are now killed on the cars. According to -the Report of the Board of Trade of Great Britain and Ireland, out of -all the 480,000,000 of journeys taken by passengers by rail in the -British Isles in 1874, only 212 people were killed, and 1,990 injured -not fatally; so that you can easily see only one solitary traveller was -killed to every 2,274,881 who followed in the triumphant train of the -iron horse, and only one injured to every 242,301 passengers.” - -“You speak only of passengers,” said a listener. “I presume far more -employees were killed during that time.” - -“Certainly. Only 212 passengers were killed that year while as many -as 788 employees were; and of the injured ones 1,990 paid for the -privilege, while 2,815 were paid for running the risk: and of these -mangled ones many had only themselves to blame. Sir John Hawkshaw, an -authority on these matters, recently asserted that railway accidents -were fewer now than ever: that in fact, on an average, a man might -travel 100,000 miles each year for forty years, and the chances would -be slightly in favor of his not receiving the smallest scratch, unless -he ran into danger of his own accord.” - -“You might almost as well at once assert that it is less dangerous to -travel by rail than to stay at home,” I remarked. - -“That very statement was officially made in France some years ago, -and supported by the proof, that while ten people were killed on the -rail, fourteen died at home from falling over carpets, and having their -garments catch fire.” - -“All that may be true enough of England, or Europe; but I should think -that it was widely different in America,” I replied. - -“Of course it must be admitted that, taken as a whole, the dangers -incident to railway travelling are materially greater in America than -in any country of Europe. Still the destruction of life and limb is -nothing frightful,--the wonder rather is that so few are hurt. Perhaps -you will not believe it, yet the truth of the fact remains, that in the -year 1874, throughout the whole of Massachusetts, but one passenger was -killed on the cars through an accident to which his own carelessness -did not contribute; while in the same year of grace, in the city of -Boston alone, fifteen people were killed from falling down stairs, -twelve by falling out of windows, and seventeen were run over by -carriages and fatally injured.” - -“But perhaps, that was an exceptional year!” - -“Let us take four years then, from September, 1870, to the same month -of 1874: in that time the railroads disposed of 635 persons, all -told, passengers, employees, trespassers--in Massachusetts; and in -Boston during the same years there were 1,050 accidental deaths! The -returns for the last fifteen years show, that in Massachusetts only 39 -passengers were killed, while 250 were injured, but not fatally, from -causes over which they had no control: that is less than one killed to -each 8,900,000 travellers, and about one in each 1,400,000 injured. -The statistics for that State would appear to indicate that if one -chanced to be born on a train and remained there travelling 500 miles -a day, he would, with average good fortune, be about two hundred and -twenty years old before being involved in any accident resulting in -death, or personal injury.” - -“That is quite long enough, since Methusaleh is no more.”[501] - - -FOOTNOTES: - -[476] Aston _v._ Heaven, 2 Esp. 533; Frink v. Potter, 17 Ill. 406. - -[477] Collett _v._ London & N. W. Rw., 16 Ad. & Ell. (N. S.), 984. - -[478] Denman, C. J., in Carpue _v._ London & B. Rw., 5 Q. B. 747; Laing -_v._ Colder, 8 Penn. St. 479-483. - -[479] Dawson _v._ Manchester S. & L. Rw., 5 L. T. (N. S.), 682; but see -Hammack _v._ White, 11 C. B. (N. S.), 587. - -[480] Hegeman _v._ West. Rw. Corp., 16 Barb. 353. - -[481] Ford _v._ London & S. W. R., 2 F. & F. 730, per Erle, C. J. - -[482] Baltimore & Ohio Rw. _v._ State, 29 Md. 252. - -[483] Alden _v._ N. Y. Central Rw., 26 N. Y. 102. - -[484] McPadden _v._ N. Y. C. Rw., 44 N. Y. 478; 47 Barb. 247. - -[485] 13 Conn. 326. - -[486] Redfield on Railways, vol. ii., 222 n. - -[487] Hegeman _v._ Western Rw., 16 Barb. 353, affirmed by Court of -Appeals, 13 N. Y. 9. - -[488] Dawson _v._ Manchester L. & L. Rw., 5 L. T. (N. S.), 682; see -also, Skinner _v._ London B. & S. C. Rw., 5 Ex. 787; Carpue _v._ Same, -5 Ad. & E. (N. S.), 747; Bird _v._ Gt. Northern Rw. 28 L. J., Ex. 3. - -[489] Manser _v._ Eastern Counties Rw., 3 L. T. (N. S.), 585, Exch. - -[490] Richardson _v._ G. E. R., L. R., 10 C. P. 486; reversed on -appeal, W. N. May 20, 1876. - -[491] Thatcher _v._ Gt. W. R., 4 U. C. C. P. 543. - -[492] Skinner _v._ London B. & S. C., 5 Ad. & E. (N. S.), 747. - -[493] McPadden _v._ N. Y. C., 44 N. Y. 478. - -[494] Christie _v._ Griggs, 2 Camp. 79. - -[495] Readhead _v._ Midland Rw., L. R., 4 Q. B. 379, Ex. Ch.; also; L. -R., 2 Q. B. 412, and the cases therein cited. - -[496] Alden _v._ New York Central Rw., 26 N. Y. 102. - -[497] McPadden _v._ N. C., 44 N. Y. 478; Meier _v._ Penn. Rw., 64 Penn. -St. 225, and Ingalls _v._ Bills, 9 Met. 1, where the court said, “If -the injury arise from some invisible defect which no ordinary test will -disclose, the carrier is not liable.” - -[498] Tuller _v._ Talbot, 23 Ill. 357. - -[499] Redfield on Railways, vol. ii., p. 237. - -[500] Redfield on Railways, vol. ii., p. 238. - -[501] See “Our Railroad Death-rate,” in Atlantic Monthly for February, -1876, by C. F. Adams, Jr. - - - - - CHAPTER XIII. - - ACCIDENTS TO TRAVELLERS. - - Standing on Platforms of Cars.--Room and Seats to be - Furnished.--Over-crowding.--Riding in Express Cars.--In Caboose - Car.--Rule in Illinois.--Walking through the Train.--Innocent - Blood.--Damages to Infants and Juveniles.--Child’s Fare - Unpaid.--$1,800 for a Baby’s Leg and Hand.--Negligence of a - Nurse.--Travelling on Free Pass.--Conditional Liability.--Company - Exempt.--Pat and Sambo.--Home again from a Foreign Shore. - - -Our Connecticut friend went out of the car and stood, on the platform, -in defiance of the notice posted up on the door forbidding people to -stand there; and gazing out into the storm and the night, he tried, -like sister Ann, to distinguish whether there were any signs of -relief coming to us in our benighted condition. As he, an omnivorous, -breeches-wearing biped, balanced himself on his long slender legs and -stretched forward his lean and lank corpus to look ahead, the engine -gave a sudden puff and plunge, Conn. lost his balance and fell to the -ground: the snow prevented much damage happening to his fragile body, -but unfortunately his foot rested partly on the rail, and the wheel of -the car badly crushed his big toe. The violent ear-piercing howls that -issued from his tobacco-seasoned throat brought assistance very soon, -and he was speedily helped back into the car; his damaged pedal member -was dressed by a young member of the Æsculapian fraternity who chanced -to be on board and seemed eager to show his surgical skill. - -The injured man soon became violent in his denunciations of the -carelessness of the company, in his threats of vengeance in the form of -suits for damages. He was, however, suddenly checked in the outpouring -of the vials of his wrath by one of the passengers remarking:-- - -“Perhaps you do not know that in these hyperborean regions people can -claim no compensation for injuries received while on the platform of -a car (or on any baggage, wood, or freight car), in violation of the -printed regulations posted up conspicuously, and where there is proper -and ample accommodation for the passengers inside the car.”[502] - -“And there is a similar statute in New York State,” added another.[503] - -“Yes,” I said, “no one can recover for an injury of which his own -negligence was in the whole, or in part, the proximate cause.”[504] - -“Wal, but the old conductor saw me thar and didn’t say nothink agin’ -it,” quoth the wounded man. - -“That makes no difference.[505] If there had been no notice up you -might get something out of them.”[506] - -“I think,” I said, “that it has been held, in one case at least, to be -a question for the jury, whether the passenger had notice not to stand -outside, and whether the fact of his disregarding it contributed to -the injury; and they having failed to find these facts, the Court of -Appeals let the plaintiff keep the $10,000, awarded him.”[507] - -“Oh, Jee-ru-sa-lem and Jee-ri-cho, I go in for that slick and quick,” -cried the victim at the sound of the almighty dollars. - -“Ha-ha; but the company, if you sue them, will only have to show that -there was room and an unoccupied seat inside the cars for you. Of -course, one is not obliged to displace either the persons or property -of other passengers, or urge them to give up half a seat, or even a -whole one, needlessly occupied by them;[508] that is the duty of the -conductor; nor is one obliged to sit in the smoking car.”[509] - -“But,” asked a lady, “should a passenger go through all the train -searching for a place wherein to bestow her weary frame?” - -“No, it is no compliance with the duty of the company to provide -proper accommodation, that there is sufficient room in a carriage -remote from the place where the passenger was allowed to enter.[510] -C. J. Coleridge once remarked in the hearing of a friend of mine, that -there may be no negligence in the company’s servants allowing too many -persons to get into a carriage, as it would be difficult at all times -to prevent it, and perhaps there would be no help for it until the -arrival at the next station. But permitting an extra number to remain -in the car and to continue to impose undue restraint and discomfort -upon the other passengers is evidence of negligence; and companies -should have a sufficient number of attendants at each station to see -that their cars are not overcrowded.”[511] - -“How would it be where a passenger is in the baggage car with the -knowledge of the conductor, and is there injured?” asked one. - -“It was decided in Canada, in such a case, that the traveller -could recover damages. There a man went into the express company’s -compartment (which was not intended for passengers, but whither they -oft times resorted to smoke the pipe of peace): a notice was usually -put upon the inside of the doors of the passenger cars and on the -outside of the door of the baggage car, forbidding travellers to -ride in the latter, but it was not shown that it was there on that -particular day; the conductor passed through the car twice while the -man was in there and made no objection. By a collision, this Watson -had an arm broken, while none of those in the passenger car were much -hurt, and the court held that even if W. was aware of the notices, yet -the company were not thereby excused, under the circumstances.[512] -But where a man rode free of charge on an engine, after the engineer -had told him that it was against the rules for him to do so, it was -held that he was a wrong-doer, and could not recover for injuries -sustained while he bestrode the iron horse, as the consent of the -engineer conferred no legal right.[513] If, however, passengers are -carried, and charged fare, in the caboose car (whatever that may be) -of freight trains, they have the same right to be conveyed safely as -if luxuriating in a gorgeous Pullman palace car,[514] and so where one -rides on a gravel train.[515] And where the conductor, though against -the rules, allowed a passenger to travel in a freight car, charging -him a first-class fare, the company were held to have incurred the -same liability for his safety as if he had been in a regular passenger -train.[516] Ditto where the conductor of a coal train invited a man to -take a ride and charged him naught.”[517] - -“That may be true enough down east, but out west if a passenger takes -a freight train he takes it with the increased risk and diminution of -comfort incident thereto, and if it is managed with the care requisite -for such trains, it is all he has a right to expect or demand;”[518] -remarked one who hailed from the city of Widow O’Leary’s celebrated cow. - -“By the way,” said a gentleman, who had been listening attentively to -all the conversation; “can any of you gentlemen, who seem to have the -whole law appertaining to railways at your finger’s ends or the tips -of your tongues (whichever expression be the more correct or implies -the greater knowledge), tell me whether it is safe for one to promenade -from one end of the train to the other for the sake of exercise or -to see who is on board? Down in New York State the jury must decide -whether it is right so to do, in order to find a seat.”[519] - -“Out west,” said the Chicagoian, “It has been decided that passengers -have no right to pass from car to car, unless for some reasonable -purpose;[520] and heaven only knows what twelve enlightened men from -the body of the country would, in their wisdom, deem to be reasonable.” - -“Humph, you don’t seem to have a very high opinion of juries,” said -the representative of that class, who had already joined in the -conversation. - -“I rather think not; who could, when they elaborate such queer -decisions from their brains and shew such ignorance. I know one case -where an intelligent jury brought in a verdict of ‘guilty’ against the -plaintiff in a libel suit; of another, where, at the close of a lengthy -trial, the foreman coolly asked the judge to explain ‘two terms of -law, namely plaintiff and defendant.’ Many of them would be decidedly -improved were occasional punishment inflicted as in the good old days -of yore, when sometimes a juryman was fined and had his nose split; and -the usual fate of a disagreeing jury was to be put into a cart and shot -into the nearest ditch.” - -Our train had been released from bondage and under weigh for some time, -and just at this juncture the conversation was stopped by a collision -taking place. Fortunately the drivers of the approaching engines had -discovered the danger some time previously; they were, therefore, -enabled by putting on the breaks so to deaden the speed that the trains -barely touched each other--gently kissed, as it were--and although -some of the passengers were jerked forward in an uncomfortable manner -as if they had been suddenly punched in a sensitive part, still no -persons were seriously hurt except two. One of these unfortunates was -the newsboy, who in passing from one car to another was thrown to the -ground and had a leg badly crushed; the other was a beautiful little -child of some three or four summers who had been playing with a lady -and was knocked violently down, and in falling hit his head against -the side of a seat. From his pure white forehead a purple stream was -slowly trickling, dyeing his golden ringlets, as he lay unconscious -upon his weeping mother’s knee. While some tried to restore the -child, and others to console the parent, I took a business-like view -of the transaction, and “with all the homage due to a sex of which I -am enthused dreadful,” as Col. Morley of the Parisians would say, I -approached and said,-- - -“Madam, each drop of that child’s blood is worth money; you may lay -the foundation of his future fortune now in the days of his youth by -recovering damages against the company for the injury they have done to -him;” she heeded not, but I continued. “Why, in one case a child two -years old was wandering on a track and being run over by a train lost a -leg and a hand, and the jury gave it $1,800;[521] why, that sum put out -at compound interest would--” - -“Oh, you horrid man,” exclaimed the mother, “to talk that way. But I -did not buy a ticket for him, and I should have, as he is over three -years old.” And the mother’s grief broke out afresh, as she thought -she had lost this golden opportunity. - -“Don’t trouble yourself, madam, that makes no difference, the contract -made with you when you bought your ticket was that both you and your -child should be carried safely, and if there was any misrepresentation -on your part as to the little sufferer’s age, although it might render -you liable for the fare that should have been paid, or for a penalty, -still it does not alter the position of the company, and they were and -are bound to carry you and the little dear safely.”[522] - -“Ah!” sighed the mother, “if that nasty woman had only held him up, and -not have let him fall,--perhaps the jury will say she ought to have -done so?” - -I was glad to see that the thought of the almighty dollar was applying -a golden salve to the mother’s wounded heart, if not to the boy’s -forehead, for I hate tears, crocodile or otherwise, and was therefore -willing to enlighten her ladyship as much as possible, especially as I -make it a constant practice to give advice gratuitously (when I think -it won’t be paid for), and putting down the usual charge for it to the -account of my charitable disbursements; so I said:-- - -“The misconduct of one assuming to take charge of a child, but to whom -it has not been entrusted, will not preclude a recovery on its part -for the negligence of the company.[523] In fact many of the American -courts hold that no amount of negligence on the part of parents and -guardians will excuse those injuring a child;[524] especially, if the -action for such injury is brought by the child and not by the parents -to recover damages for the death of their little one.”[525] - -Alas, for the poor mother’s peace of mind, there was a Job’s comforter -on board, and he opened his mouth, and although he did not bray as he -should have done, being what he was, he spake thus:-- - -“The law in the State of Massachusetts is that the negligence of those -who have the charge of children, or invalids, unable to take care of -themselves, will injuriously affect their right of action.”[526] - -“Thank goodness we are not near the Hub of the universe now,” I -exclaimed, sharply. - -“And very much the same rule is laid down in England, and in the States -of Maine, New York, and Indiana.[527] In England where a child five -years old was in the charge of his grandmother and was injured by a -train while crossing the track, it was held that he was so identified -with his old granny that on account of her carelessness an action in -his name could not be maintained against the company.[528] And where -a passing train cut off the leg of a three and a half year old child, -the court considered that the company were not responsible, unless it -was shown that he had strayed upon the track through their negligence -or default.[529] And in the United States it has been held that to -allow an infant, four years old, to wander at its own sweet will in the -public streets, is such negligence on the part of the parents as will -prevent the child recovering for any damages sustained.”[530] - -“But not if the child were six, and the street a quiet one”[531]--I -broke in, but my adversary continued:-- - -“Or to suffer a child of two summers to cross a street traversed by a -horse-railway.”[532] - -“But a five year old may cross such a street,”[533] I again broke in. - -“Or even to cross a street and go a few yards down to its house.”[534] -Here he stopped. - -“I have read somewhere that in England they take more pains to protect -an oyster than a child,”[535] remarked one of the listeners. - -“Never mind his croaking, madam,” I went on. “These cases he mentions -do not apply to you. If they did it would be visiting the sins of -the fathers upon the children to an extent not contemplated by the -decalogue (as a judge once remarked),[536] and, besides, on this side -of the water a parent may suffer a child four years old to cross a -street by itself to school;[537] or wander about a station,[538] -without freeing the company from liability.” - -“Ditto down where I growed;”[539] interruptingly ejaculated our -Connecticut friend. - -“Parents,” I added, “need only be ordinarily careful in not allowing -their small fry to get into danger.[540] But I must go and see the -newsboy.” - -Off I started instanter-- - - For a virtuous action should never be delayed, - The impulse comes from heaven, and he who strives - A moment to repress it, disobeys - The god within his mind. - -I found the youth in the baggage car with his leg tightly bandaged. -The pallor spread over his countenance, the beads of perspiration on -his brow, and his closely pressed lips, told that his sufferings were -great; but with Spartan courage he repressed every voluntary sign of -pain. A group of rough, yet tender men were gathered round him, and -they told me that it was feared he would have to lose his leg; that he -was the only son of his mother, and she was a widow with no stay nor -support save the earnings of her boy. - -“I say, mister,” said one of the party to me, “I kind of calculate you -are a lawyer from what I heard you say before we left the station, and -I want to know whether a man who has not got a a ticket can sue the -railway for damages.” - -I replied, “Every person is a passenger and entitled to be carried -safely (so far as due care will provide for his safety), who is -lawfully on the train;[541] and the _onus_ is on the company to prove -affirmatively that he is a trespasser.[542] Any one permitted to ride -in a train as a passenger is entitled to demand and expect the same -immunity from peril whether he pay for his seat or no; the confidence -induced is a sufficient legal consideration to create a duty in the -performance of the service undertaken;[543] so, if one is injured by -the culpable negligence or want of skill of the company’s servants -he is entitled to recover although he is a dead-head.[544] Thus, a -newspaper reporter travelling on a free ticket--even if granted to -another brother of the press;[545] the president of one company riding -by request of the president of another;[546] a mail-clerk travelling -in charge of the mail bags,[547] and a child for whom no fare has been -paid;[548] were all held entitled to damages when injured. Nor--though -this is rather beside the matter--does the fact that the train has been -hired for an excursion excuse the negligence, or remove the liability -of the company.”[549] - -“All right,” said the man to the boy; “cheer up, sonny; you will get a -pot of money for this that will keep you like a fighting-cock till you -get round again.” - -“I did not say that,” I remarked, gloomily shaking my head. - -“Why, what do you mean?” was anxiously queried by several. - -“Railway companies may stipulate for exemption from all responsibility -for losses accruing to passengers from the negligence of their -servants, unless, indeed, it arise from their fraudulent, reckless -or wilful misconduct;[550] and where it has been agreed that, in -consideration of a free pass, the passenger should travel at his own -risk, or where he takes a free ticket having an express condition -printed thereon ‘whereby the holder assumes all risk of accidents -and expressly agrees that the company shall not be liable under any -circumstances, whether of negligence by their agents or otherwise, for -an injury to the person, or for any loss of or injury to the property,’ -such agreement or condition is good, and will exclude all liability on -the part of the company for any negligence (save gross or wilful)[551] -for which they would otherwise have been liable. That has been held in -Canada;[552] in New York State,[553] in other States, and in England -the company is not even liable for wilful or gross negligence.[554] The -words “travel at his own risk” include all the incidents connected with -the journey; all those risks which arise during the transit and until -the transit is actually at an end, are guarded by these words. So if -a man, whose ticket is thus marked after leaving the train and while -going off the company’s premises fall over a parapet and is injured, -he will not be able to recover;[555] I mean to recover damages. But -of course such an agreement does not extend to an independent wrong, -as an assault or false imprisonment, or any rights as to criminal -proceedings,[556] nor where the traveller is carried under an -agreement between the company and some third party which says nothing -about the traveller taking the risk himself.”[557] - -“What’s the use in such a long palaver,” rudely interrupted my -questioner, “the boy had no ticket at all.” - -“Well, where a newsboy of the name of Billy Alexander, while on the -platform of a station, was struck by a piece of wood projecting from a -passing car and so hurt that he died, it was held to be a good defence -that he was a newsboy in the employ of Chisholm, selling papers on the -company’s trains under an agreement between Chisholm and the company, -that the latter should not be liable for any injury to the newsboys -or their goods, whether occasioned by the company’s negligence or -otherwise.”[558] - -“Do you mean to tell me,” cried a listener, indignantly, “that in this -free land of ours the life of a child can thus be sold by his employer?” - -“Ah,” I returned, “that is a question which Richards, C. J., did not -decide. But if you want to know anything more on the subject call on me -at my office, and I shall be most happy to attend to you,” I added, as -I left the car. - -I now retired to my berth in the Pullman, where the company was bound -to keep both my-self and my goods in safety while I slept.[559] I was -scarcely settled there ere I heard loud and angry voices proceeding -from the front end of the car, and recognized our Hamitic conductor’s -tones in the words-- - -“I tell you, sah, this is a sleeping car, and you can’t come in without -a ticket.” - -“Shure and I had a ticket, and its after slaping I want to be;” was the -response in Milesian accents, broad and sweet. - -“Whar is it?” - -“Shure and I have lost the plaguy thing.” - -“If you have lost your ticket, sah, can you remember your berth?” asked -the African. - -A solemn pause, during which Paddy ruminated deeply, then he exclaimed, - -“Och, by jabers, it is a hard thing to remember that, though I know I -was there at the time; and my ould mother, rest her bones, tould me -that I was born on Patrick’s day in the morning, the year afore the -famine, and more by token our old sow had a fine litter of pigs that -selfsame day.” - -When the burst of laughter that greeted this reply had died away, I -quickly subsided into the “arms of Murphy,” and knew nothing more of -railroads, railroad-law, or railroad travelling, until I was called by -the descendant of Noah’s naughty son, and informed that we were just -at the station which I had left some days previously, and where my -journeyings were for a time to end, and from which in a few minutes -I would be transported to the bosom of my beloved spouse. Right glad -was I when once again I stood--_mens sana in corpore sano_--on the -platform of the depot of my native city, and saw the cabby coming from -the baggage car with my traps on his brawny shoulder. I will draw the -veil of modesty over the reception that awaited me at home, and where I -soon showed myself to be “a forked straddling animal with bandy legs,” -as Dean Swift puts it; or as Sir John Falstaff, Knight, would say, “for -all the world like a forked radish with a head fantastically carved -upon it with a knife.” - - -FOOTNOTES: - -[502] Railway Act, 1868, s. 20, sub-sec. 13 (Canada). - -[503] Redfield on Railways, vol. ii., p. 252. - -[504] Robinson _v._ Cone, 22 Vt. 213; Butterfield _v._ Forrester, 11 -East, 60. - -[505] Higgins _v._ N. Y. & Harlem Rw., 2 Bosw. 132. - -[506] Colegrove _v._ N. Y. & N. H. Rw., 6 Duer, 382. - -[507] Zemp _v._ W. & M. Rw., 9 Rich., 84. - -[508] Robinson _v._ Fitchburg & Worcester Rw., 7 Gray, 92; Willis _v._ -Long Island Rw., 34 N. Y. 670; Bass _v._ C. & N. W. Rw., 36 Wis. 461. - -[509] Bass _v._ C. & N. W. Rw., _supra_. - -[510] Willis _v._ Long Island Rw., 34 N. Y., 670. - -[511] Jackson _v._ Metropolitan Rw., L. R., 10 C. P. 49. - -[512] Watson _v._ Northern Rw. Co., 24 U. C. Q. B. 98; see also, -Carroll _v._ N. Y. & N. H. Rw., 1 Duer, 571, where a man took a seat -in the post office department of baggage car with the assent of the -conductor. - -[513] Robertson _v._ N. Y. & E. Rw., 22 Barb., 91. - -[514] Edgerton _v._ N. Y. & H. Rw., 39 N. Y. St. 227; Indianapolis, -etc., _v._ Beaver, 41 Ind. 497. - -[515] Lawrenceburgh & Upper Miss. Rw. _v._ Montgomery, 7 Ind. 474. - -[516] Dunn _v._ G. T. Rw., 10 Am. Law Reg. (N. S.), 615. - -[517] Eaton _v._ Del., Lack., & W. Rw., 1 Am. Law Record, 121; 57 N. Y. -382. - -[518] Chicago, B., & Q. Rw. _v._ Hazzard, 26 Ill. 373. - -[519] McIntyre _v._ N. Y. Central Rw., 37 N. Y. 287. - -[520] Galena & Chicago Rw. _v._ Yarwood, 15 Ill. 468. - -[521] Redfield on Railways, vol. ii., p. 243, n.; Rauch _v._ Lloyd, 31 -Penn. St. 358. - -[522] Austin _v._ Gt. Western Rw., L. R., 2 Q. B. 442. - -[523] N. Penn. Rw. _v._ Mahoney, 57 Penn. St. 187. - -[524] Wharton on Negligence, § 310. - -[525] N. P. Rw. _v._ Mahoney, _supra_; B. & I. Rw. _v._ Snyder, 18 Ohio -St. 399. - -[526] Holly _v._ Boston Gas Light Co., 8 Gray, 123; Wright _v._ Malden -& M. Rw., 4 Allen, 283. - -[527] Wharton on Negligence, § 311. - -[528] Waite _v._ N. E. Rw., El. Bl. & El. 719. - -[529] Singleton _v._ Eastern C. Rw., 7 C. B. N. S. 287. - -[530] Mangam _v._ Brooklyn, etc., Rw., 36 Barb. 230. - -[531] Cosgrove _v._ Ogden, 49 N. Y. 255; see Karr _v._ Parks, 40 Cal. -188. - -[532] Wright _v._ Malden & M. Rw., 4 Allen, 283. - -[533] Barksdall _v._ N. O. & C. R., 23 La. An. 180. - -[534] Callahan _v._ Bean, 9 Allen, 401. - -[535] Wharton on Negligence, § 312. - -[536] Lannen _v._ Albany Gas Light Co., 46 Barb. 264. - -[537] Lynch _v._ Smith, 104 Mass. 52. - -[538] Stout _v._ S. C. & P. Rw., 11 Am. Law Reg. (N. S.), 226. - -[539] Daley _v._ Norwich & W. Rw., 26 Conn. 591. - -[540] P. A. & M. Rw. _v._ Pearson, 72 Penn. St. 169. - -[541] Gt. Western of Canada _v._ Braid, 1 Moore P. C. (N. S.), 101. - -[542] Penn. Rw. Co. _v._ Books, 7 Am. Law Reg. (N. S.), 524. - -[543] Coggs _v._ Bernard, Holt, 13. - -[544] Ohio & Miss. Rw. _v._ Muhling, 30 Ill. 9. - -[545] Gt. Northern Rw. _v._ Harrison, 12 C. B. 576; Gillenwater _v._ -Madison & Indian Rw., 5 Ind. 340. - -[546] Phil. & Read. Rw. _v._ Derby, 14 How. (U. S.), 483. - -[547] Collett _v._ London & N. W. R., 16 Ad. & El. (N. S.) 984; Nolton -_v._ Western R., 10 How. Pr. R. 97. - -[548] Austin _v._ Gt. Western Rw., L. R., 2 Q. B. 442. - -[549] Skinner _v._ London, B., & S. C. Rw., 5 Ex. 787; Cleveland, C. & -C. Rw. _v._ Terry, 8 Ohio (N. S.), 570; but see Peoria Br. Ass. _v._ -Loomis, 20 Ill. 235. - -[550] Welles _v._ N. Y. C., 26 Barb. 641; Indiana Central Rw. _v._ -Mundy, 21 Ind. 48. - -[551] Ind. Cent. Rw. _v._ Mundy, 21 Ind. 48; Welles _v._ N. Y. C. Rw., -26 Barb. 641; Bissell _v._ N. Y. C., 29 Barb. 602; Ill. C. R. _v._ -Read, 37 Ill. 484. - -[552] Sutherland _v._ Gt. W. Rw., 7 U. C. C. P. 409; Woodruff _v._ G. -W. R., 18 U. C. Q. B. 420. - -[553] Welles _v._ N. Y. C., 26 Barb. 641. - -[554] McCawley _v._ Furness Rw., L. R., 8 Q. B. 57. - -[555] Gallin _v._ L. & N. W. Rw., L. R., 10 Q. B. 212; Hall _v._ N. E. -Rw., L. R., 10 Q. B. 437. - -[556] Ibid. - -[557] Woodruff _v._ G. W. R., 18 U. C. Q. B. 420. - -[558] Alexander _v._ Toronto & N. Rw., 33 U. C. Q. B. 474; _S. C._, on -appeal, 35 U. C. Q. B. 453. - -[559] Palmater _v._ Wagner, Marine Ct. N. Y. 1875. - - - - - CHAPTER XIV. - - INJURIES TO PASSENGERS AND EMPLOYEES. - - An Inefficient Line.--Passengers hurt.--Employees killed.--Lord - Campbell’s Act.--Compensation for Death.--Solatium for Feelings - Wounded.--Scotch Law.--American Law.--Hen-pecked Husband’s - Will.--The Rule in Massachusetts.--In Pennsylvania.--In - Maryland.--In Canada.--Hard to decide.--Annuity Tables.--Bad or - Diseased.--Insured.--Children Injured.--Parents Compensated.--Amounts - obtained.--A Leg at $24,700.--For what compensated.--Chances - of Matrimony.--Servants injured.--Fellow Servants.--Different - Companies.--Which One to sue.--Strangers’ Act.--Greedy Ruminant. - - -I had fondly hoped that no new points, quirks, or quiddities on railway -law would arise in the course of my not very extensive practise for -some time to come, so that I might have leisure to paddle my own little -canoes, and issue little billets-doux in the Queen’s name to the -company on my own account. But alas! I had scarcely settled down in -my office on the day of my arrival at home when my young friend, Tom -Jones (to whom I referred in the early pages of this interesting and -instructive diary of mine), came rushing in. - -After a considerable amount of small talk, chit-chat and mutual -inquiries after mutual friends and affairs, and things mutually -interesting, Tom exclaimed, “I say, old fellow, I have a couple of -matters that are bothering me, and I want your advice thereon.” - -By the way, nearly all Tom Jones’ matters bothered him, and when they -bothered him he bothered me, for he was not one of those who - - Make law their study and delight, - Read it by day and meditate by night. - -“All right,” I said, extending my left digits towards him for an -_honorarium_. - -“Oh, I am not going to pay you,” he remarked coolly, “so you need not -expect it.” - -“Ah, well,” I returned, quietly and with the air of an ill-used man, -“I shall do like old Thurlow did, he could never come to a decision -without a fee, and so when he had to decide upon some matter for -himself he would take a guinea out of one pocket and put it into -another. Now what are your questions?” I always preferred answering his -queries to lending him books, for although he was a miserable hand at -accounts he was a most excellent book-keeper. - -“I suppose you know,” began T. J., “that a short time ago, owing to a -heavy storm, part of the line of the Blank Railway gave way”---- - -“That is _primâ facie_ evidence of the insufficiency of its -construction; and a company is bound to build its works in such a -manner as that they will be capable of resisting all extremes of -weather, which in the climate through which the line runs might be -expected, though rarely, to occur. So say that august assembly, the -Judicial Committee of the Privy Council.”[560] - -“Can’t you wait a bit--that’s not the point at all;” said Jones. - -“Go on then.” - -“Several men were killed, and, as is usual, they all had large families -of small children. Three of the wives have come to me to see if I can -get damages against the company for them.” - -“Were they passengers or employees, for that makes a great difference,” -I said. - -“One was employed on the line, the others were not,” replied Tom. - -“Well, let us settle about the others first.” - -“Well, what do you do first to get your damages? I mean under what Act -do you proceed?” - -“Under what in England is called Lord Campbell’s Act (9 & 10 Vic. ch. -93), the Canadian Act[561] is a transcript of that; and a similar -statute has been introduced into most of the States of the Union, to -obviate that most heathenish of maxims _actio personalis moritur cum -personam_. Our Act provides that when death shall be caused by the -wrongful act, neglect or default, of any person, such as would (if -death had not ensued) have entitled the party to an action, in every -such case an action may be maintained by the executor or administrator -of the party injured, and the jury may give such damages as shall be -proportioned to the injury resulting from the death of such party, to -be divided among the members of his family as the jury shall direct. -But, of course, if any negligence of the party himself, or those in -charge of him, contribute directly to the injury, there can be no -remedy.[562] Have twelve months elapsed since the death?” - -“No,” was the response. - -“All right.” - -“What damages shall I claim?” - -“Only such as will compensate for the pecuniary loss sustained,”[563] I -returned. - -“But one of my wives--the richest one, too,--went into most awful fits -over the death of her husband, and has not been quite _compos mentis_ -since; and I want something to solace her for her mental sufferings.” - -“You cannot get it in this country, nor could you in England either. -If the jury were to inquire into the degree of mental anguish which -each member of a family suffers from a bereavement, then not only the -child without filial piety, but a lunatic child and one of very tender -years, and a posthumous child, on the death of the father, although -getting something for pecuniary loss, would not come _in pari passu_ -with other children, and would be cut off from the solatium. If a jury -were to proceed to estimate the respective degrees of mental anguish -of a widow and twelve children from the death of the pater-familiás, -a serious danger might arise of damages being given to the ruin of -the defendants: especially would the damages be disastrous if all the -relatives mentioned in the fifth section of the Imperial Act (the -sixth of the Canadian), the father and the mother, grandfather and -grandmother, stepfather and stepmother, grandson and granddaughter, -stepson and stepdaughter, not only got compensation for their pecuniary -losses, but solatiums for their shattered affections, blighted -expectations and broken hearts.”[564] - -“That is too bad,” said Jones, “for I am sure the Scotch law gives a -solatium for wounded feelings, even where the death of the man, instead -of being a loss, is a gain to the family, owing to his bankruptcy or -dissipated habits.”[565] - -“Yes,” I replied, “but the Scotch are always more liberal than other -people; they grant a solatium to a man injured in his happiness and -circumstances by the death of his wife and child, whereas in England -a widower will not get anything unless the death of his spouse causes -him some pecuniary loss;[566] it being a pure question of pecuniary -compensation, and nothing more, which is contemplated by the Act.[567] -Nor, I believe, can a husband recover in New York State for the death -of his wife.[568] But where the damages are for the next of kin, the -services of the deceased mother in the nurture and instruction of her -children, had she survived, may be properly considered.[569] I wonder -what is the rule as to the solatium in the Republic--let us see.” - -So saying, I reached down a most useful book on Railways, by Chief -Justice Redfield, of Vermont, and concerning “the great learning, -research, and power of reasoning displayed” in which, Lord Chief -Justice Cockburn speaks with expressions of admiration. - -“Here it is: ‘There seems no doubt, according to the best considered -cases in this country, that the mental anguish which is the natural -result of the injury, may be taken into account, in estimating damages -to the party injured in such cases, although not of itself the -foundation of an action.’”[570] - -“It seems,” remarked my friend, “somewhat strange that in Canada a -person’s feelings should make no difference; for one of my widows feels -her loss deeply, whereas the other is evidently one of those ‘viders’ -against whom Samivel Veller, Senior, would have warned his hopeful boy.” - -“Both are entitled to the same compensation, although one was as -closely joined in sympathy and spirit to her lost spouse as was Chang -to Eng, in the flesh; and the other was the Elizabeth referred to in -the will of that unfortunate wretch who died in London, in 1791. I -must read you that will, though it is rather beside the subject, for -it is a perfect model for hen-pecked husbands to follow; here it is. -‘Seeing that I have had the misfortune to be married to the aforesaid -Elizabeth, who ever since our union, has tormented me in every possible -way; that heaven seems to have sent her into the world solely to drive -me out of it; that the strength of Samson, the genius of Homer, the -prudence of Augustus, the skill of Pyrrhus, the patience of Job, the -philosophy of Socrates, the vigilance of Hermogenes, would not suffice -to subdue the perversity of her character; that no power on earth can -change her; seeing we have lived apart during the last eight years, -and that the only result has been the ruin of my son, whom she has -corrupted and estranged from me: weighing, maturely and seriously, -all these considerations, I have bequeathed and I do bequeath, to my -said wife Elizabeth, the sum of one shilling, to be paid to her within -six months of my death.’ But to return; as to damages, I see that -in Massachusetts by statute[571] the passenger carrier is subject to -a fine, not exceeding $5,000, to be recovered by indictment, to the -use of the executor or administrator of the deceased for the benefit -of his widow and heirs. Under this Act, if the death is instantaneous -and simultaneous with the injury, as no right of action accrues to the -person injured, there is none to which the Act can apply;[572] but -it is sufficient if one does not die for fifteen minutes, although -insensible from the first.[573] In Pennsylvania, the jury were told -to estimate damages ‘by the probable accumulations of a man of such -age, habits, health, and pursuits as the deceased, during what would -probably have been his lifetime.’[574] In Maryland the jury was -directed to give such damages as would yield the family of the deceased -the same support as they would have obtained from the labor of the -father during the time he would probably have lived and worked, and -that they might consider the age, health, and occupation of the man -killed, and the comfort and support he was to his family at the time of -his death.”[575] - -“I see,” said Tom, who seemed unwilling that I should do all the -talking, “that our own Chief Justice Robinson, on one occasion, -confessed himself utterly at a loss to make a satisfactory computation -of the amount of damages to be awarded, or of the pecuniary loss -sustained by a widow and her children through the death of the head -of the house: he said he had no means of determining whether they -would have been better off if the father’s life had run its natural -course, or not; it was mere conjecture. The father might have become -extravagant or intemperate, and squandered his property; or from too -great eagerness to grow rich, might have lost it by grasping at too -much, or might have died from natural causes within a year or a month, -leaving his family no better off than he did leave them when carried -away by the sad accident.[576] And I think that I would be equally -puzzled were I on a jury; I don’t see how in the world a jury, except -by drawing lots, can calculate the damages arising from the loss of the -income, and of the care, protection, and assistance of the father.” - -“Yes, it must be rather a nice calculation.” - -“Suppose,” continued Jones, “there was an accident to a train -containing an archbishop, a lord chancellor, a bank director, a -lunatic, a wealthy but immoral man, and one virtuous but bankrupt, -and all these respectable persons came to final grief: how could any -ordinary jury estimate the pecuniary value of the conjugal and paternal -care, protection, and assistance of each of these.” - -“You need not put such an unlikely case,” I said, “merely suppose that -there were together one who-- - - ‘scorned life’s mathematics, - Could not reckon up a score, - Pay his debts, or be persuaded - Two and two are always four. - That another was exact as Euclid, - Prompt and punctual, no one more.’” - -“Still,” I added, “these difficult calculations have to be made.” - -“But how?” - -“In England, it has been decided that the damages are not to be -estimated according to the life of the man, calculated by annuity -tables, but the jury should give what they consider a reasonable -compensation;[577] although, in the United States, it was thought -proper for the judge in charging the jury to allude to the -expectation of life according to the tables deduced from the bills of -mortality:[578] and even in England, in such cases, the average and -probable duration of the life is a material point, which cannot be -better shown than by the tables of insurance companies, who learn it -by experience.[579] And the probable benefits of the continuance of -the life of the father, as to the children, is to be estimated with -reference to their majority, and as to the widow, with reference to -the expectation of life as determined by the tables.[580] Of course, -the jury are not to attempt to give damages to the full amount of -a perfect compensation for the pecuniary injury, but must take a -reasonable view of the case, and give what they consider, under all the -circumstances, a fair compensation.”[581] - -“Would it make any difference were the man of a bad character or -diseased?” - -“If the man had a fatal disease which would be sure to kill him in a -short time, the amount of damages given should be less.[582] And as -to character, the loss is supposed to be of a man as he ought to be. -It has been held not to be necessary that the widow, or next of kin, -should have any legal claim upon the deceased for support.”[583] - -“How would it be if he was insured, and by his death the family rather -made than lost?” - -“Well, I presume that if the insurance goes to a man’s family, it would -be a good reason for reducing the amount of damages. There appears to -be only one English case on this point, and that was at _Nisi Prius_ -and is not reported at length; in it Lord Campbell told the jury to -deduct from the amount of damages the amount of an insurance against -accidents, and any reasonable sum they should think fit in respect -of life insurance.[584] In a Canadian case, McLean, J., said, that if -the interest on the insurance would exceed the annual value of the -testator’s income while living and exercising his ordinary avocations, -it would surely be competent for the company to show that the widow had -sustained no pecuniary damages, and that only nominal damages should be -given, if indeed any.[585] But, I should say that if the insurance went -to some of the family only, the others would still have their right to -substantial damages.”[586] - -“I believe,” continued the irrepressible Jones, “that if an injured -man settles with the company for a sum of money, that puts an end to -the whole matter, and if he afterwards shuffles off this mortal coil -nothing more is to be had.” - -“Yes; once and forever, is the rule, even if the unfortunate makes a -mistake and takes too little.”[587] - -“Can you make money out of the slaughter of children?” - -“Oh, certainly; though in England doubts have been suggested as to -whether damages were obtainable to compensate for the loss of the -services of a child so young as to be unable to earn anything;[588] -but in New York a mother recovered $1,300 for the death of a daughter -seven years old.”[589] - -“That was a pretty good figure for a female youngster.” - -“Yes, as the pecuniary loss is not supposed to be extended beyond the -minority of the child.[590] In England, however, a father recovered -for the loss of a son twenty-seven years old, but unmarried, who had -been accustomed to make occasional presents to his parents.[591] There -the old man rather ‘tried to stick it on’; he had a swell funeral and -bought crape for the family and wanted the company to pay for them; -the jury said ‘Yea,’ but the court said ‘Nay.’ In one case, however, a -mourning husband recovered the funeral expenses of his wife.[592] As a -rule, damages of a pecuniary nature must be shown; so, where a son was -in the habit of assisting his father by carrying round coals for him, -it was held that £75 was too much to give the old man for compensation -for his death.[593] In an Irish case, where a boy of fourteen, earning -no wages and whose business capabilities were valued at _six-pence_ -per day, was killed, it was considered that the probability of his -assisting his mother was good evidence to go to the jury.[594] - -“What sums have been given and allowed by the court for the death of -the father?” - -“Well, it was considered that $12,000 was not too much for the widow -and three children of an industrious well-to-do farmer;[595] in an -English case £1,000 was given to the widow, and £1,500 to each of -eight young children, $65,000 in all;[596] then $1,300 for that baby -girl.[597] But when $20,000 was given as damages for the death of a -blacksmith--the inventor of a patent plough--who was killed at the -celebrated Desjardins Canal accident, a new trial was granted, as the -court thought the sum enormously excessive.[598] On the other hand, in -one case, twelve miserable jurymen, who doubtless would have eagerly -skinned a mosquito for the sake of its hide and tallow, gave £1 to a -poor widow, and ten shillings each to her two fatherless children.[599] -So you see the sum goes by the rule of thumb.” - -“So it appears,” answered my young friend, who sucked in knowledge as -a sponge does water--only to lose it again. “But some of those are not -bad figures.” - -“Certainly not; yet they are by no means as good as some people -have get and had the pleasure of spending themselves. In one case, a -man received $6,000 for a broken leg, which got well in about eight -months:[600] another got $24,700 (Canada money) for the loss of his -leg.”[601] - -“What a leg that must have been--a match for Miss Kilmansegg’s precious -limb, which - - ‘Was made in a comely mould, - Of gold, fine virgin glittering gold, - As solid as man could make it-- - Solid in foot, and calf, and shank, - A prodigious sum of money it sank; - In fact, ’twas a branch of the family bank, - And no easy matter to break it. - - All sterling metal,--not half-and-half, - The goldsmith’s mark was stamped on the calf,-- - ’Twas pure as from Mexican barter. - - ’Twas a splendid, brilliant, beautiful leg, - Fit for the Court of Scander-Beg, - That precious leg of Miss Kilmansegg!’” - -Exclaimed Tom Jones glowing with poetic fire, his eye in a fine frenzy -rolling at the thought of the bawbees. - -“Cease exhibiting your Hood,” I said severely. “In another case $10,000 -was obtained for something or other, when if the man had been killed -outright his friends would only have got $5,000.[602] But in these -three cases, new trials were granted, as will always be the way where -the damages are so excessive as to strike every one as beyond all -measure unreasonable and corrupt, and as showing the jury to have been -actuated by passion, corruption, or prejudice.[603] Where, however, a -woman had lost one arm and the use of the other, and was so bruised, -battered, blackened and injured that she was in constant pain, and -her health and memory were impaired, and in three successive trials -recovered $10,000, $18,000, and $22,250 respectively, the first two -verdicts were set aside, but she was allowed to keep the third.[604] -And where one was disabled for two years, $4,500 was held not -exorbitant compensation;[605] and in Connecticut, $1,800 to a two year -old baby for the loss of a leg and hand were given and retained.[606] -And where a man broke his leg in two places, was confined to his room -for four or five months during which time the injured leg became -shorter than the other, he was allowed to retain $2,000 awarded to -him by the jury,[607] and Mr. Rockwell, who had to keep his bed six -weeks, suffering great pain the while, and could not attend to his -business for several months and had to pay $1,500 to the disciples of -Galen, was allowed to keep $12,000 given him by twelve jurymen.[608] -But $5,000 for a damaged hand was held too much.[609] As these things -rest a great deal in the discretion of the jury they must of necessity -be more or less uncertain. But the amount paid by railway companies -for compensation for injuries is enormous: the Revere accident, in -Massachusetts, a few years ago, cost the company half a million of -dollars, and in England between 1867 and 1871 the various companies -paid out $10,000,000 for this purpose.” - -“Can you sue more than once?” - -“No; you must go for all your damages, present and prospective, in one -action.”[610] - -“What do you actually get paid for?” - -“The effect of the accident--both at the present time and in the -future--upon one’s health, use of limbs, ability to attend to business -and pursue the course of life that one otherwise would have done, the -bodily pain and suffering endured, and in fact all injuries that are -the legal, direct, and necessary results of the accident.[611] If -sufficient time has not elapsed to enable the injury to be properly -computed, the trial should be postponed.[612] A jury may be properly -asked to consider the fact that the injured one had a reasonable -prospect of increasing his income although at the time it was -small.[613] In some cases the plaintiff has been allowed to add to his -actual damages of loss of time, expense of cure, pain and suffering, -and prospective disability, if any--counsel fees not recoverable as -taxable costs,[614] but this rule is not now followed.[615] A husband -may recover for the expense of the cure of his wife, and for the loss -of her services.[616] Expenses incurred by sickness of a wife caused by -the death of her child,[617] and damages for premature labor, and birth -of a still-born child caused by collision, are recoverable.[618] One -young lady, who was seriously injured by the upsetting of a passenger -car, sought to get additional damages because the prospects of her -forming a matrimonial alliance were lessened by her injuries, but the -poor thing failed in her attempt for lack of evidence on the point, and -because her attorney had neglected to insert the special claim in the -declaration.”[619] - -“Oh that was too bad,” said Jones, “for the desire of marriage--her -chances of which had been lessened--arises naturally from the principle -of reproduction which stands next in importance to its elder born -correlative, self-preservation, and is equally a fundamental law of -existence: it is the blessing which tempered with mercy the justice of -the expulsion from Paradise; it was impressed upon the human creation -by a benevolent Providence, to multiply the images of Himself, and so -promote His own glory and the happiness of his creatures. Not man alone -but the whole animal and vegetable kingdoms are under an imperious -necessity to obey its mandates. From the lord of the forest to the -monster of the deep; from the subtlety of the serpent to the innocence -of the dove; from the celastic embrace of the mountain Kalima to the -descending fructification of the lily of the plain, all nature bows -submissively to this primeval law. Even the flowers which perfume the -air with their fragrance and decorate the forests and the fields with -their hues, are but curtains to the nuptial bed. The principles of -morality, the policy of nations, the doctrines of the common law, the -law of nature and the law of God, unite in condemning any act which -hinders people entering into the holy estate of wedlock.”[620] - -“My conscience, Tom Jones, how did you become master of such mighty and -glowing strains of high toned eloquence,” I asked, as I “astonied stood -and blank.” - -“Oh, I have an action for breach of promise coming on to-morrow, and I -thought I would see if I knew the peroration of my address to the jury.” - -“Did you compose it?” I asked. - -“Not quite. Mr. Justice Lewis, of Pennsylvania, originally uttered the -words in giving judgment in a will case. Now then,” said Jones, after a -pause, “what about the employee that was killed.” - -“Ah! more of them are killed every year than the number of soldiers -who died during the Ashantee war; 1,000 or 1,200 appears to be the -annual number in the old country. But it is clearly settled both -in England and America, that a servant who is injured through the -negligence or misconduct of a fellow servant, can maintain no action -against the master,[621] if the latter has taken due care not to expose -him to unnecessary danger,[622] and has made a proper selection of -servants--competent and trustworthy--and has a sufficient number of -them,[623] and has himself not been guilty of negligence,[624] and -takes care to furnish and maintain suitable and safe machinery and -structures,[625] and if a servant continues his work knowing that his -fellows are incompetent, or the machinery defective, he is guilty of -contributory negligence.”[626] - -“It seems,” remarked my friend, “strange that if my coachman runs over -a stranger and kills him, I have to make reparation, but if he runs -over the footman and disposes finally of that man of buttons, it is a -matter of no importance. And in this case it will prove very hard on -the poor family.” - -“Ah, well! judges and juries must not be drawn out of the path of duty -even by their feelings for the widow and the orphan. The reason of the -law is, that when a servant engages to serve a master he undertakes to -run all the ordinary risks of the service, which includes, of course, -the negligence of fellow servants acting in the discharge of their duty -towards their common master.[627] If the rule was otherwise it might -become very hard on the master; as Lord Abinger suggests, the footman -who sits behind the carriage would have an action against his master if -he came to grief through the negligence of the coach-maker or harness -maker, or through the drunkenness, neglect, or want of skill of the -coachee; in fact the poor master would be liable to his servant for -the negligence of the chambermaid, in putting him into a bed with damp -sheets, whereby he took the rheumatism; for that of the upholsterer -in sending him a crazy bedstead, whereby he fell down while asleep -and injured himself; or for the negligence the cook in not properly -cleaning the copper vessels used in the kitchen; of the butcher in -supplying the family with meat injurious to health; of the builder for -a defect in the foundation of the house whereby it fell, and injured -both the master and the servants in its ruins.”[628] - -“But what is a fellow servant?” - -“In England all the servants of the same person, or company, engaged -in carrying forward the common enterprise--although in different -departments, widely separated or strictly subordinated to others--are -fellow servants and are bound to run the hazard of any negligence or -wrong doing which may be committed by any of their number,[629] and -it makes no difference that the negligence is imputed to a servant of -superior authority, whose directions the other was bound to obey.[630] -But in some of the American cases, it has been held that employees, who -are so far removed from each other as that the one is bound to obey -the other, are not fellow servants within the rule;[631] other judges, -however, have denied this qualification;[632] and now it seems settled -that it is sufficient to bring the case within the general rule, if the -servants are employed in the same general service,[633] or under the -same general control.”[634] - -“All this may be very true, but then you see, my dear Eldon, my man was -killed in consequence of the state of the track,” said Jones. - -“Why in the name of all that is sacred and profane did you not remind -me of that before. In one case a company was held responsible for -an injury to one of its servants through the track being out of -repair,[635] but in others it was considered that if the line was -properly built and inspected it was all that could be required.[636] So -you can draw your own conclusions, for I am getting tired of you.” - -“Well, I’m off, and am much obliged. But, oh, one point more before -I leave you. One of the men was coming from Chicago and had a coupon -ticket which he purchased at the station there, does that make any -difference?” - -“Through tickets do not import a contract with the purchaser on the -part of the company selling to carry him beyond the limits of their -own line: the coupons are to be considered as so many distinct tickets -for each road, sold by the first company as agent for the others;[637] -and each successive company is responsible for all injuries to through -passengers while upon its own line and in passing to the next company’s -line.[638] The companies cannot be considered partners so as to render -each liable for injuries or losses occurring upon the whole route.”[639] - -“Is not that different from the rule as to carrying goods and baggage, -and the rule in England?” - -“As to carriers of goods or baggage taking pay and giving checks -or tickets through, the first company is ordinarily liable for the -entire route;[640] and in England it has been decided[641] that where -a railway company contracts to carry a passenger from one terminus -to another, and on the journey the train has to pass over the line -of another railway company, the company issuing the ticket incurs -the same responsibility as that other company, over whose line the -train runs and by whose default the accident happens, would incur -if the contract to carry had been entered into by them. The company -issuing the ticket is liable for the negligence of the servants of -any other company over whose line the passenger has to pass to reach -his journey’s end; the contract with the passenger being the same -whether the journey be entirely over the line of the first company, -or partly over that of another company, and whether the passage over -the other line be under an agreement to share profits or simply under -running powers; and that contract is, not only that they will not be -themselves guilty of any negligence, but that due care will be used -in carrying the passengers from one end of the journey to the other, -so far as is within the compass of railway management.[642] In fact, -the rule in regard to companies that run over other roads than their -own seems now to be pretty well established; and it is, that the first -company is responsible for the entire route and must take the risk of -the employees of the other companies;[643] and where another company -has running powers over the first company’s line, the first company -is not liable for any injury arising through the negligence of such -other company; though if it were a case of goods they would be liable, -because they are then insurers.”[644] - -“I suppose in England you can only sue the company granting the ticket.” - -“Yes. I would just add, so that you may have an exhaustive discourse -on the subject, that if mischief arises from the act of a stranger -in leaving a log of wood across the railway, or doing any other -act which might endanger a railway train passing along the line of -another company, an action cannot be maintained against the railway -company, because in that case there would not be any direct or indirect -breach of duty, or breach of contract, on their part; they would -not be liable on their own line, or on any other company’s line for -that;[645] the same doctrine was held where a stranger had wilfully -and maliciously placed a stone upon the track which threw off the -train.[646] If, however, a man falls off the cars on to the track, -because he has no proper place to sit and his body throws the train -off, this will afford no excuse for damages to the man’s luggage from -such upsetting.[647] So, where the covetous greed of a young bullock -induced him to force his way through a hedge to gain some tempting -grass that grew luxuriantly on the track, and the collision with him -of the train hurt Mr. Buxton who was on board; and it appeared that -B. had been a passenger on the defendants’ railway to be carried from -Y. to T., and to reach T. it was necessary to travel over the line -belonging to another company, and while journeying over the latter line -the affair of the bullock took place. The court held that the contract -having been made with the defendants they were the proper parties to be -sued. A new trial was, however, granted because the judge had directed -the jury that it was negligence in the defendants if the fences were -insufficient; the court considering that there was no statutory -obligation on the company, towards their passengers, to keep up the -fences.”[648] - -“What would it have been if the bullock had jumped over the hedge -instead of pushing through?” asked Jones. - -“I don’t understand.” I returned. - -“Why a case of cattle-lept-sy to be sure. Au revoir.” - - -FOOTNOTES: - -[560] Gt. Western Rw. _v._ Fawcett; Same _v._ Braid, 1 Moore, P. C. C. -(N. S.), 101; 9 Jur. (N. S.), 339. - -[561] Con. Stat. Can. ch. 78. - -[562] Willets _v._ Buffalo & Rochester Rw., 14 Barb. 385, where a -lunatic was left by himself and in consequence was killed. - -[563] Blake _v._ Midland Rw., 18 Q. B. 93; Bradburn _v._ G. W. R., -L.R., 10 Ex. 3. - -[564] Blake _v._ Midland Rw., 18 Ad. & Ell. (N. S.), 93; Pym _v._ Great -Northern Rw., 4 B. & S. (Ex. Ch.), 396. - -[565] Ersk. Inst. 592, note 13. - -[566] In argument Gillard _v._ Lancaster & Yorkshire Rw. Co., 12 L. T. -356. - -[567] Armsworth _v._ Southeastern Rw. Co., 11 Jurist, 758. - -[568] Lucas _v._ N. Y. C., 21 Barb. 245; Worley _v._ Cincinnati, H., & -D. Rw., 1 Handy, 481. - -[569] Tilley _v._ Hudson River Rw., 29 N. Y. 252. - -[570] Canning _v._ Williamstown, 1 Cush. 451; Morse _v._ Auburn & -Syracuse Rw., 10 Barb. 623; so in California, Fairchild _v._ California -Stage Co., 13 Cal. 599. - -[571] 1842, c. 89. - -[572] Hollenbeck _v._ Berkshire Rw., 9 Cush. 481. - -[573] Bancroft _v._ Boston & Worcester Rw., 11 Allen, 34. - -[574] Penn. Rw. Co. _v._ McCloskey, 23 Penn. St. 526, 528. - -[575] Baltimore & Ohio Rw. _v._ State, 24 Md. 271. - -[576] Secord _v._ Great Western Rw., 15 U. C. Q. B. 631. - -[577] Armsworth _v._ Southeastern Rw., 11 Jur. 759. - -[578] Smith _v._ N. Y. & Harlem Rw., 6 Duer, 225, City of Chicago _v._ -Major, 18 Ill. 349. - -[579] Rowley _v._ London & N. W. Rw., 29 Law Times Rep. (N. S.), 180. - -[580] Balt. & Ohio Rw. _v._ State, 33 Md. 542; Macon & Western Rw. _v._ -Johnson, 38 Ga. 409. - -[581] Rowley _v._ London & N. W. Rw., 29 Law Times Rep. (N. S.), 180. - -[582] Birkett _v._ Whitehaven Junction Rw., 4 H. & N. 732. - -[583] Railway Co. _v._ Barron, 5 Wallace, 90. - -[584] Hicks _v._ Newport A. & H. Rw., mentioned in 4 B. & S. 403; see -Bradburn _v._ G. W. Rw., L. R., 10 Ex. 3, where it was held that money -received on an accident insurance policy could not be considered in -reduction of damages for injuries caused by negligence. - -[585] Ferrie _v._ Great Western Rw., 15 U. C. Q. B. 517. - -[586] Pym _v._ Great Northern Rw., 4 B. & S. 397, Ex. Ch. - -[587] Read _v._ Great Eastern Rw., L. R., 3 Q. B. 555; but see remark -of Erle, C. J., in Pym _v._ Gt. N. Rw., 4 B. & S. 406; and Coleridge, -J., in Blake _v._ Midland Rw., 18 Ad. & El. (N. S.), 93. - -[588] Bramhall _v._ Lees, 29 Law Times, 111. - -[589] Court of Appeals, 14 N. Y. 310. - -[590] State _v._ Baltimore & Ohio Rw., 24 Md. 84; but see Penn. Rw. -_v._ Adams, 55 Penn. St. 499. - -[591] Dalton _v._ S. E. Rw. 4 C. B. (N. S.), 296. - -[592] Redfield on Railways, vol ii. p. 275. - -[593] Franklin _v._ S. E. Rw. 3 H. & N. 211; Duckworth _v._ Johnson, 4 -H. & N. 653. - -[594] Condon _v._ Great Southern & Western Rw., 16 Ir. C. L. R. 415. - -[595] Secord _v._ Great Western Rw., 15 U. C. Q. B. 631. - -[596] Pym _v._ Great Northern Rw., 4 B. & S. 397 Ex. Ch. - -[597] Court of Appeals, 14 N. Y. 310. - -[598] Morley _v._ Great Western Rw., 16 U. C. Q. B. 504. - -[599] Springett _v._ Balls, 7 B. & S. 477. - -[600] Clapp _v._ Hudson R. R., 19 Barb. 461. - -[601] Batchelor _v._ Buffalo & Brantford Rw., 5 U. C. C. P. 127. - -[602] Collins _v._ Albany & Sch. Rw., 12 Barb. 492. - -[603] Coleman _v._ Southwick, 9 Johns. 45; Gilbert _v._ Burtenshawf, -Cowp. 230; Hewlett _v._ Cruchley, 5 Taunt. 277. - -[604] Shaw _v._ Boston & Worcester Rw., 8 Gray, 45. - -[605] Curtiss _v._ Rochester & S. Rw., 20 Barb. 282. - -[606] Redfield on Railways, vol. ii., p. 243. - -[607] Fairbanks _v._ G. W. R., 35 Q. B. (Ont.), 523. - -[608] Rockwell _v._ Third Avenue Rw., 64 Barb. N. Y. 438. - -[609] Union Pacific Rw. _v._ Hand, 7 Kan. 380. - -[610] Hodsoll _v._ Stallebras, 11 Ad. & El. 301; Whitney _v._ -Clarendon, 18 Vt. 252. - -[611] Curtiss _v._ Rochester & S. Rw., 20 Barb. 282; Memphis, etc. Rw. -_v._ Whitfield, 44 Miss. 466. - -[612] Speers _v._ G. W. R., 5 Pr. Rep. (Ont.), 173. - -[613] Fair _v._ L. & N. W. Rw., Q. B. 18 W. R. 66. - -[614] Barnard _v._ Poor, 21 Pick. 381; Sandback _v._ Thomas, 1 Stark. -306. - -[615] Grace _v._ Morgan, 2 Bing. (N. C.), 534; Jenkins _v._ Biddulph, 4 -Bing. 160. - -[616] Hopkins _v._ Atlantic & St. Lawrence Rw., 36 N. H. 9; Pack _v._ -Mayor of New York, 3 Comst. 489; Campbell _v._ G. W. R., 20 U. C. C. P. -345. - -[617] Ford _v._ Monroe, 20 Wendell, 210. - -[618] Fitzpatrick _v._ Great Western Rw., 12 U. C. Q. B. 645. - -[619] Hanover Rw. _v._ Coyle, 55 Penn. 396. - -[620] Per Lewis, J. Commonwealth _v._ Stauffer, 10 Barr. 350. - -[621] Priestley _v._ Fowler, 3 M. & W. 1; Farwell _v._ Boston & W. Rw., -4 Met. 49; Brown _v._ Maxwell, 6 Hill, N. Y. 592. - -[622] Hutchinson _v._ York, etc., Rw., 5 Ex. 353; Wiggett _v._ Fox, 11 -Ex. 837; Keegan _v._ Western Rw., 4 Selden, 175. - -[623] Tarrant _v._ Webb, 18 C. B. 805; Frazier _v._ Penn. Rw., 38 Penn. -St. 104; Wright _v._ New York Central, 28 Barb. 80; Hard _v._ Vermont & -Canada Rw., 32 Vt. 473. - -[624] Ormond _v._ Holland, 1 El. Bl. & El. 102. - -[625] Bartonshill Coal Co. _v._ Reid, 3 Macq. H. L. Cas. 266; Tarrant -_v._ Webb, 18 C. B. 797; Weems _v._ Mathieson, 4 Macq. 215. - -[626] Holmes _v._ Clark, 6 H. & N. 349; 7 Ibid. 937. - -[627] Morgan _v._ Vale of Neath Rw., L. R., 1 Q. B. 149. - -[628] Priestley _v._ Fowler, 3 M. & W. 1. - -[629] Tunney _v._ Midland Rw., L. R., 1 C. P. 291; see also, Plant _v._ -G. T. R., 27 U. C. Q. B. 78. - -[630] Feltham _v._ England, L. R., 2 Q. B. 33. - -[631] Coon _v._ Syracuse & Utica Rw., 1 Selden, 492; Louisville & N. -Rw. _v._ Collins, 5 Am. Law Reg. (N. S.), 265. - -[632] Farwell _v._ Boston & W. Rw., 4 Met. 49, 60; Gillshannon _v._ -Stony Brook Rw., 10 Cush. 228; Chicago & N. W. Rw. _v._ Jackson, 55 -Ill. 492. - -[633] Wright _v._ N. Y. C., 25 N. Y. 562; and see Baird _v._ Pettit, 29 -Phil. Rep. 397. - -[634] Abraham _v._ Reynolds, 5 H. & N. 142; Hard _v._ Vermont & Canada -Rw., 32 Vt. 475. - -[635] Snow _v._ Housatonic Rw., 8 Allen, 441. - -[636] Faulkner _v._ Erie Rw., 49 Barb. 324; Warner _v._ Same, 8 Am. Law -Reg. (N. S.), 209. - -[637] Sprague _v._ Smith, 29 Vt. 421; Hood _v._ N. Y. & N. H. Rw., 22 -Conn. 1. - -[638] Knight _v._ P. S. & P. R. Rw., 56 Me. 234; 2 Redf. Am. Rw. cases, -458. - -[639] Ellsworth _v._ Tartt, 26 Ala. 733. - -[640] McCormick _v._ Hudson R. Rw., 4 E. D. Smith, 181. - -[641] Great Western Rw. _v._ Blake, 7 H. & N. 987, Ex. Ch. - -[642] Thomas _v._ Rhymney Rw. Co., L. R., 6 Q. B. 266, Ex. Ch.; and -John _v._ Bacon, L. R., 5 C. P. 437. - -[643] Redfield on Railways, vol. ii. p. 303; Railway Co. _v._ Barron, -5 Wall, 90; Ayles _v._ S. E. Rw., L. R., 3 Ex. 146; Birkett _v._ -Whitehaven Junction Rw., 4 H. & N. 730; Sprague _v._ Smith, 29 Verm. -421, was an exceptional case. - -[644] Wright _v._ Midland Rw., L. R., 8 Ex. 137. - -[645] Mytton _v._ Midland Rw., 4 H. & N. 615; Great Western Rw. _v._ -Blake, 7 H. & N. 987, Ex. Ch.; Weed _v._ Saratoga Rw., 19 Wend. 534. - -[646] Latch _v._ Rimmer Rw., 27 L. J., Ex. 155; see also, Cunningham -_v._ Grand Trunk Rw., 31 U. C. Q. B. 350; Curtis _v._ Rochester & -Syracuse Rw., 18 N. Y. 534; Tennery _v._ Pippinger, 1 Phila. 543; -Thayer _v._ St. Louis, A. & T. H. Rw., 22 Ind. 26; Pitts., Ft. Wayne, & -Chicago Rw. _v._ Maurer, 21 Ohio, N. S. 421. - -[647] Goldey _v._ Penn. Rw., 30 Penn. St. 242. - -[648] Buxton _v._ Northeastern Rw., L. R., 3 Q. B. 549. - - - - - CHAPTER XV. - - BAGGAGE AGAIN. - - Epistolary Model.--Dog lost.--Quitting a Moving Car.--When Liability - for Luggage commences.--Goods of Third Party.--Left in the - Car.--Baggage lost.--English Rule.--Limited Liability.--Personal - Luggage, what it is.--Watch.--Rings.--Pistol.- Railroad Porter.--Hotel - ’Bus.--Tools and Pocket Pistols.--Fiddles and Merchandise.--Farewell. - - - MY DEAR WIFE,-- - -Your letter announcing your safe arrival at M----, if, indeed, you -can be said to have arrived safely, considering all that befell you, -made me happy this A. M. The tale of your disasters was really quite -amusing, and I have passed some of my lonely hours most agreeably -considering the law on the various points. - -So poor Fox is gone; doubtless the mangled remains of that poor cur -lie stark and cold upon the railway line, and crows are gathering in -the leaden skies to assist at his funereal obsequies; or, perchance, -he may be gracing the board at some restaurant in the familiar form -of sausages. You say it appears that he slipped his head through the -noose of the string by which he was tied in the baggage car; if this be -so the baggage man might have seen that he was not securely fastened; -and it was his duty to lock him up, or otherwise keep him safely.[649] -Make out your bill, dearest, we’ll make the company pay. At what figure -do you value him? (I had, however, better add that in a late case -where a dog was fastened in the ordinary way, and there was nothing to -show that he was likely to escape, the carrier was held justified in -trusting to the owner having properly secured the animal.)[650] - -Poor Miss Smith ought to have been more careful when she would insist -upon going into the car to bid you a last adieu, even though her young -man was waiting for her. She most certainly should not have attempted -to leave the carriage after it was in motion, and when the conductor -warned her not. Even if the conductor was to blame in negligently -starting the train without the usual premonitory screech, and the -unnecessary jerk assisted in the catastrophe, the company was not -responsible; her conduct was the mere outcome of that perverseness -which is the characteristic trait of the feminine nature.[651] - -You never told me that Eliza Jane had taken her trunk to the station -some half dozen hours before the train was to start; it was rather -verdant of her so to do. I presume the desire to have a quiet drive -with her John was the motive. The loss of her finery will teach her a -lesson; however, it will not really matter, as she can recover the -value of her “things,” for the responsibility of the company as common -carriers attaches as soon as their servants receive the baggage of -the traveller at the proper place; and the giving of the check does -not control the time of the responsibility attaching.[652] One is a -passenger, and entitled to sue for damages sustained, the moment he -mounts the bus (run by the company) on his way to the station.[653] -But where an intending passenger, fifteen minutes before the train was -to start, entered a car at the terminus, left his valise on a vacant -seat and went out; and on his return shortly afterwards his baggage -was gone; as he did not show that there was any one in charge of the -train or any other passenger on board, the court would not hold the -company liable.[654] The fact that you took and paid for her ticket -will not prevent E. J. maintaining an action for her loss,[655] for -it makes no difference whether a passenger pays her own fare, or some -one else kindly does it for her.[656] In fact, if one is travelling -on a free pass by which the company stipulates to be excused from all -loss or damage, still they are responsible for the wilful or careless -misconduct of their servants.[657] - -But, unfortunately, I fear that you must quietly submit to the loss of -those things of yours which she had in her trunk, for the contract to -carry was with her alone; the company thought that the trunk contained -her luggage; if they had been told that it was not they might have -objected to carry, considering the Saratogas you had, not to speak of -bandboxes, bundles, and parcels; and even if you had had no luggage -yourself, it would have been all the same;[658] and as they were not -Eliza Jane’s I don’t suppose she can sue for them either. - -And so that pretty dressing-case which I gave you on that memorable -day when we twain became one flesh, is gone! you say that you put it -under your seat in the car, and that it must have been left there when -the porter carried your traps to the cab at your journey’s end; well, -I cannot say that placing it where you did was a very wise thing, -still as another lady who once did the same in England recovered the -value of her dressing-case (although she failed to recover the case -itself),[659] so doubtless if money will dry your tears for the loss -of that memento of our wedding-day, you will be consoled. Probably -the fact of your name and address not being on it will not affect -your rights in the matter.[660] A railway company is liable for the -loss of a passenger’s luggage though carried in the carriage in -which he himself is travelling.[661] Very special circumstances, and -circumstances leading irresistibly to the conclusion that the traveller -takes such personal control and charge of his luggage as altogether to -give up all hold upon the company, are required before a court will -say that the company as common carriers are not liable in the event -of a loss.[662] Even if luggage is never given to a railroad servant -but kept by the passenger in his own possession, still in the eye of -the law it is considered to be in the custody of the company, so as -to render them responsible for the loss.[663] In England, a railway -company that receives goods or luggage, and books it for a certain -place beyond the terminus of its road (unless it specially stipulates -to be exempt for whatever happens on other lines), is responsible for -any evil that befalls it before its arrival at its journey’s end, even -though it happens while the goods are passing over the rails of another -company;[664] in fact one has no remedy except against the company with -whom the contract is made. But the justice and soundness of the English -decisions have been seriously questioned by the American courts, who -think that the carrier is only liable for the extent of his own route, -and for safe storage, and safe delivery to the next carrier.[665] Many -cases, however, follow the English ones, and others hold that the -responsibility is only _primâ facie_, and may be controlled by general -usage among carriers, whether such usage be known to the traveller -or not.[666] (But this subject is so mixed that I will show you what -Judge Redfield says when you get back again.)[667] Where different -railways--forming a continuous line--run their cars over the whole line -and sell tickets for the whole route, checking baggage through, an -action lies against any company for the loss of baggage.[668] - -Of course if there was any notice on your ticket limiting the liability -of the company with regard to your traps, you are bound thereby, -even if you never read it;[669] for railway companies, as well as -other carriers, may limit their responsibility by special contract -of which notice is given to the passenger or owner, and to which he -assents or does not object, subject to such exception, limitation, or -qualification as reason and justice may require and a judge and jury -decide with reference to each particular case.[670] - -I don’t exactly know what you had in that dressing-case of yours, -but the rule is, “that whatever a passenger takes with him for his -own personal care and convenience, or even for his instruction and -amusement,[671] according to the habits or wants of the particular -class to which he belongs, either with reference to the immediate -necessities or the ultimate purpose of the journey, must be considered -as personal luggage,” for the loss of which the carrier is liable;[672] -and articles of jewelry, such as a lady usually wears, are considered -personal luggage.[673] So is a watch;[674] though in Tennessee a -watch was not deemed a proper part of necessary baggage.[675] Where -was yours? So are finger rings.[676] In one case a man was allowed -to have two gold chains, two gold rings, a locket and a silver -pencil-case;[677] so I will leave you to calculate how many a lady -should be allowed to carry about with her. Your swell gold spectacles -would also come within the category;[678] and by the way, that linen -which you bought for my new shirt fronts would be included[679] (if you -were good enough to take it with you to make them up, and unfortunate -enough to lose it); and that little present you were taking for your -sister--perhaps.[680] I don’t know what else you had in that case which -will now know its place on our dressing table no more forever. Of -course, your brushes, razors--_pardonnez moi, madame_, I forgot to whom -I was writing--pen and ink, etc., are fairly baggage within the meaning -of the term.[681] - -Not content with the abandonment of your dressing-case, you say you -lost a bandbox by stupidly letting a porter carry it for you to a -cab, which you could not afterwards find: well, if it is the custom -on that line for the company’s porters to assist passengers to obtain -cabs, within the station grounds, and place their baggage therein, the -company will be liable for this loss also. This my old friend Butcher -satisfactorily established: he had a carpet-bag with him containing a -large sum of money, and this he wisely kept in his own possession while -journeying up to London. On arriving at the station there, however, he -unwisely--even Jove sometimes nods--let a porter take it from him for -the purpose of securing a cab. The porter put the bag in a fly and then -returned to the platform to get my friend’s other luggage. Meanwhile -cabby disappeared and the bag and all that was therein was lost. The -court considered the company liable, as there had been a delivery of -the bag to them to be carried, and no re-delivery to Butcher.[682] -Where baggage has been lost, the owner may recover all reasonable -expenses incurred in his hunt after it, such as telegraphing, cab-hire, -etc.: but his loss of time is a dead loss.[683] - -Your next misfortune was the loss of that new book I gave you, -wherewith to beguile the weariness of the way; you say you left it in -the omnibus that took you up to the hotel; well, omnibus drivers who -take passengers from the stations about the towns are unquestionably -responsible as common carriers.[684] Although in England it has been -held that a cab-driver or hackney-coachman was not;[685] still they -are bound to use an ordinary degree of care. If the hotel proprietor -undertakes to provide free transit to and from the cars, and you lost -your book in his ’bus, he is liable.[686] - -Although it deeply pains me to find the slightest fault with my -spouse, still I must say that I think that you have been a little -careless during this trip; in fact you have shown that the character -your mother gave you was not quite a libel, when she said that you -would lose your head were it not securely fastened on, and your tongue -were it not in incessant use. - -While I am writing to you in this strain, I may as well give you a -little further information concerning what you may, and what you may -not, carry as personal baggage; though doubtless you will soon forget -all that I say, or if not,--at all events,--will not heed it, such is -the forgetfulness and perverseness of that sex whose love, as Prince -Charles Edward said, “is writ on water, whose faith is traced on sand.” - -Besides what I have already mentioned, if you are a sportsman you may -take a gun, if a disciple of the gentle Izaak Walton, the necessary -_instrumenta bella_;[687] if you are a joiner--I don’t mean a -parson--you may take a reasonable amount of tools with your clothes,[2] -although perhaps you can’t;[3] for in Pennsylvania a carpenter was -permitted to carry a reasonable amount of his tools with him,[688] -while in Ontario a brother of the same craft was not;[689] the judge -thinking that a blacksmith might just as reasonably expect to carry -his forge, or a farmer his plough, as part of his baggage. You may -take new clothing and materials for yourself and family, though not -for others;[690] if you are of a nervous disposition and desire to -defend yourself against thieves and robbers, you may take a pocket -pistol,--don’t suppose I mean a brandy flask,--if you are a bellicose -man of honor a couple of duelling pistols will be allowed,[691] or -even a gun,[692] although in Maryland, one was not allowed to take -a colt.[693] A theatre goer may take an opera glass;[694] a student -on his way to college, manuscripts necessary for the prosecution of -his studies;[695] but an artist cannot carry his pencil sketches as -luggage in England;[696] although Cockburn, C. J., thought he could, -and his easel as well.[697] J. Wilson, in a Canadian case, thought that -one musically inclined might take a concertina, or a flute, or that -instrument in the playing of which a western writer says “the resined -hair of the noble horse travels merrily over the intestines of the -agile cat;”[698] but fortunately for mankind in general the majority of -the court held otherwise. - -You cannot carry merchandise, either in England,[699] the United -States,[700] or the Dominion of Canada,[701] unless, indeed, it is -carried openly, or so packed that the carrier can see what it is and -does not object to it; nor samples, if you belong to the confraternity -of commercial travellers;[702] nor can a banker take money as -such;[703] nor can one carry silver spoons, nor surgical instruments, -unless he is a disciple of Galen and Hippocrates;[704] nor boxes of -jewelry for sale;[705] nor silver-ware;[706] nor the regalia and jewels -of a society;[707] nor a sewing-machine;[708] and it is beyond a -peradventure that if a carrier accepts a trunk, or baggage, containing -such tabooed articles, without knowledge of such contents, he incurs no -liability.[705] If he is deceived into taking it, he is not bound to -carry it safely.[709] - -But really, my dear, I must draw these remarks to a close, as the -parsons say in their sermons. You cannot complain that this letter is -too short. There are several items of news--of babies born, brides -be-wed, bodies buried,--and such like trivialities, of which I might -have told you; but as you spoke about your losses I concluded that I -would send you an instructive note, and let vain trifles rest quiescent -until your return. - -Though you may think that this epistle smacks somewhat of business, yet -please reflect that you are my sleeping partner, and spend the greater -portion of the profits of my office, and so ’tis becoming that you -should be slightly acquainted with legal matters, especially as you are -the daughter of my mother-in-law. - -Adu! adu! O reservoir! - - Your - SPANISH GRANDEE. - - -FOOTNOTES: - -[649] Stuart _v._ Crawley, 2 Stark, 324. - -[650] Richardson _v._ Northeastern Rw., L. R., 7 C. P. 75, note. - -[651] Lucas _v._ Taunton & New Bedford Rw., 6 Gray, 64. - -[652] Camden & Amboy Rw. _v._ Belknap, 21 Wendell, 354; Hickox _v._ -Naugatuck Rw., 31 Conn. 281. - -[653] Buffet _v._ Troy Rw., 40 N. Y. 168. - -[654] Kerr _v._ G. T. R., 24 C. P. (Ont.), 209. - -[655] Marshall _v._ York, N., & B. Rw., 11 C. B., 655. - -[656] Van Horn _v._ Kermit, 4 E. D. Smith, 453. - -[657] Mobile & Ohio Rw. _v._ Hopkins, 41 Ala. 486. - -[658] Becher _v._ G. E. Rw., L. R., 5 Q. B. 241. - -[659] Richards _v._ London, B., & S. C. Rw., 7 C. B. 839. - -[660] Campbell _v._ Caledonian Rw., 14 Ct. of Sess. Cas. 2 Ser. 806; 1 -S. M. & P. 742. - -[661] Le Conteur _v._ London & S. W. Rw., L. R., 1 Q. B. 54. - -[662] Ibid. - -[663] Great Northern Rw. _v._ Shepherd, 8 Ex. 30; but see Tower _v._ -Utica & Sch. Rw., 7 Hill, N. Y. 47. - -[664] Muschamp _v._ Lancaster & Preston Junction Rw., 8 M. & W. 421; -Watson _v._ Ambergate, N. & B. Rw., 15 Jur. 448; Bristol & Ex. Rw. _v._ -Collins, 7 House Lords Cas. 194. The same rule applies in Canada, Smith -_v._ G. T. Rw., 35 U. C. Q. B. 547. - -[665] Farmers’ & Mechanics’ Bank _v._ Champlain Trans. Co., 16 Vt. 52; -18 Vt. 131; 23 Vt. 186; Van Santvoord _v._ St. John, 6 Hill, N. Y. 158. - -[666] Southern Express Co. _v._ Shea, 38 Ga. 519; Cincinnati, etc., Rw. -_v._ Pontius, 19 Ohio (N. S.), 221. - -[667] Redfield on Railways, vol. ii., p. 126, _et seq._ - -[668] Hart _v._ Rensselaer & Saratoga Rw., 4 Seld. 37. - -[669] Zunz _v._ South-eastern Rw., L. R., 4 Q. B. 539; but see Kent -_v._ Midland Rw. Co., L. R., 10 Q. B. 1; Henderson _v._ Stevenson, L. -R., 2 S. & D. 470. - -[670] Carr _v._ Lancashire & York Rw., 7 Ex. 707; Redfield on Railways, -vol. ii., p. 101. Where the condition on ticket was “that the company -does not hold itself responsible for any delay, detention, or other -loss arising off its lines,” and the baggage was never delivered to any -other company, held that meaning of last words was “out of the custody -of the company.” Kent _v._ Midland Rw., L. R., 10 Q. B. 1. - -[671] Hawkins _v._ Hoffman, 6 Hill, 586. - -[672] Cockburn, C. J., in Macrow _v._ Great Western Rw., L. R., 6 Q. B. -622; Great Northern Rw. _v._ Shepherd, 8 Ex. 38. - -[673] Brooke _v._ Pickwick, 4 Bing. 218; McGill _v._ Rowand, 3 Penn. -St. 451. - -[674] Jones _v._ Voorhees, 10 Ohio, 145; Miss. C. Rw. _v._ Kennedy, 41 -Miss. 471. - -[675] Bomer _v._ Maxwell, 9 Humphrey, 621. - -[676] McCormick _v._ Hudson River Rw., 4 E. D. Smith, 181. - -[677] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66. - -[678] _Re_ H. M. Wright, Newberry Admiralty, 494. - -[679] Duffy _v._ Thompson, 4 E. D. Smith, 178. - -[680] Great Western Rw. _v._ Shepherd, 8 Ex. 38; but see Bell _v._ -Drew, 4 E. D. Smith, 59. - -[681] Hawkins _v._ Hoffman, 6 Hill, N. Y. Rep. 589. - -[682] Butcher _v._ London & S. W. Rw., 16 C. B. 13. - -[683] Morrison _v._ E. & N. A. Rw., 2 Pugsley’s Rep. No. 3, p. 295. - -[684] Peixotti _v._ McLaughlin, 1 Strob. 468. - -[685] Brind _v._ Dale, 8 C. & P. 207; Ross _v._ Hill, 2 C. B. 887. - -[686] Dickinson _v._ Winchester, 4 Cush. 115. - -[687] Macrow _v._ Great Western Rw., L. R., 6 Q. B. 622; Hawkins _v._ -Hoffman, 6 Hill, N. Y. Rep. 589. - -[688] Porter _v._ Hildebrand, 14 Penn. St. 129. - -[689] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66. - -[690] Dexter _v._ S. B. & N. Y. Rw., 42 N. Y. 326. - -[691] Woods _v._ Devon, 13 Ill. 746; Bruty _v._ G. T. Rw. 32 U. C. Q. -B. 66. - -[692] Davis _v._ Cayuga & S. Rw., 10 How. Prac. 330. - -[693] Giles _v._ Fauntleroy, 13 Md. 126. - -[694] Toledo & Wabash Rw. _v._ Hammond, 33 Ind. 379. - -[695] Hopkins _v._ Westcott, 7 Am. Law Reg. (N. S.), 533. - -[696] Mytton _v._ Midland Rw., 4 H. & N. 615; Morritt _v._ N. E. R., L. -R., 1 Q. B. D. 302. - -[697] Macrow _v._ Great Western Rw., L. R., 6 Q. B. 622. - -[698] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66. - -[699] Great Western Rw. _v._ Shepherd, 8 Ex. 30; Macrow _v._ Great -Western Rw., L. R., 6 Q. B. 616. - -[700] Pardee _v._ Drew, 25 Wend. 459; Collins _v._ Boston & Maine Rw., -10 Cush. 506. - -[701] Shaw _v._ Grand Trunk Rw., 7 U. C. C. P. 493. - -[702] Cahill _v._ London & N. W. Rw., 13 C. B. (N. S.), 818; Belfast B. -L. & C. Rw. _v._ Keys, 9 House Lords Cas. 556; Hawkins _v._ Hoffman, 6 -Hill, 586; Dibble _v._ Brown, 12 Ga. 217. - -[703] Phelps _v._ London & N. W. Rw., 19 C. B. (N. S.), 321. - -[704] Giles _v._ Fauntleroy, 13 Md. 126. - -[705] Richards _v._ Wescott, 2 Bosw. 589. - -[706] Bell _v._ Drew, 4 E. D. Smith, 59. - -[707] Nevins _v._ Bay State S. B. Co., 4 Bosw. 225. - -[708] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66. - -[709] Sleat _v._ Fagg, 5 B. & Al. 342. - - - - - CHAPTER XVI. - - TELEGRAMS AND FIRE. - - Assault.--Authority of Officials.--A dear Kiss.--Arresting - Passengers.--Telegraphic Messages.--Interesting Examples.--Who can - sue for Mistake.--Fire-fiend’s Pranks.--Train Arrives.--Liability - Ceases.--Trunks in Warehouse.--Baggage left at Station.--Dissolving - Domestic View. - - -When the day arrived on which my wife was to return to me, I determined -to go and meet her at N., so as to be on the spot to keep an eye on -her baggage when she reached the station and avoid further loss and -accident. - -I bought my ticket and got into the proper car, but just as the train -was on the point of starting I asked the porter if I was in the right -carriage, he replied, I was not, and must get out; I hesitated, as -the train was in motion, so he caught hold of me and violently pulled -me out. We fell on the platform and I was considerably hurt, and what -was as bad, the cars went on and left me behind. I went in search of -the general superintendent of the line, as I was determined to seek -redress, for a person who puts another in his place to do a class of -acts in his absence necessarily leaves him to determine, according to -the circumstances which arise, when an act of that class is to be -done; consequently he is answerable for the wrong of the person so -intrusted, either in the manner of doing such an act, or in doing such -an act under circumstances in which it ought not to have been done; -provided that what is done is not done from any caprice of the servant, -but in the course of the employment.[710] And in a similar case it was -held that the act of the porter, in pulling a man out of the carriage, -was an act done within the course of his employment as the company’s -servant, and one for which they were therefore responsible.[711] - -Railway companies are liable for all the acts of their servants -and agents committed in the discharge of their business and their -employment, within the range of such employment, whether wilful or -negligent.[712] The injured person has to show that his assailant -was not only a servant of the company, but that he had authority so -to treat him, or that such conduct was subsequently ratified by the -company.[713] Where a conductor chancing to be alone in the car with -Miss Cracker, cracked some jokes, sat down beside her, put his hand -in her muff with her’s (although she objected that there was no room -for it), threw his arms around her neck, and kissed her five or six -times, while she struggled to escape. Miss C. to have sweet revenge, -the kisses being so sour, and not relishing such blandishments and -disliking chaps about her lips, or a railway man’s bill stuck in her -face, had him arrested and fined $25 for an assault: the company -then dismissed the gay Lothario from their employ, and were rather -surprised when the injured female sued them and recovered against them -$1,000. The court considered the verdict was not excessive, and that a -carrier’s contract bound him to protect his passengers against all the -world, which in this case had not been done. It was not denied that -if such an attack had been made by a stranger and the conductor had -neglected to protect Miss C. the company would have been liable, but it -was contended that the company was not responsible for the malicious -breach of the contract by their servant, the conductor. Ryan, C. J., -thought such a contention was much like saying that if one hired a dog -to guard sheep against wolves, and the dog slept while a wolf made -away with a sheep, the owner of the dog would be liable; but if the -dog played wolf, and devoured the sheep himself, the owner would not -be liable. Every woman has a right to assume that when she travels in -a car she will meet nothing, see nothing, hear nothing, to wound her -delicacy, or insult her womanhood.[714] - -Some courts have held that a railway company can only act through -their officers and servants, and as they, of necessity, commit their -trains absolutely to the charge of men of their own appointment, and -passengers of necessity commit to them their safety and comfort while -journeying, the whole power and authority of the company for that -purpose is vested on those officers; and as far as travellers are -concerned they are to be considered as the corporation itself; and -the latter is as responsible for the acts of the officers in running -the train towards the passengers in it, as the officers would be for -themselves were they the proprietors of the road and train.[715] -Exemplary damages, however, will not be given against a company for -the malicious acts of its agent, unless it is shown that the company -expressly authorized or confirmed the deeds.[716] - -A railway is supposed to have at its stations officers with authority -to do all such things as are necessary and expedient for the protection -of the company’s property and interests, and for the apprehension of -wrong-doers; and where there are persons present who are acting as if -they had express authority, it is _primâ facie_ evidence that they -had such authority,[717] and the company will be answerable if their -officers, in the exercise of their discretion, make a mistake and -apprehend an innocent person, or commit an assault through an excess -of duty, or do any other act that cannot be justified.[718] And it -makes no difference with regard to the responsibility of the company -that the servant disobeyed the directions of his superiors, if he -was acting within the scope of his employment at the time.[719] But -when he does an act which he has no authority to do, the company are -not liable;[720] nor are they when he does an act which the company -themselves have no authority to do.[721] And thus a seeming paradox -arose in one case where a station master arrested a man for not paying -the fare of a horse he had with him, and it was held that (as the -company itself could not have done so) the company were not liable, -though had the zealous official arrested him for not paying his own -fare, damages might have been recovered against the company.[722] - -Thus ruminating over my wrongs and chewing the bitter cud of hatred and -malice, I found my way into the office of the chief official, but as -that important functionary was _non est_, I had to nurse my wrath until -some more convenient season. - -Just then a friend came up and showed me a telegram which seemed -perfectly enigmatical and worthy of the Sphinx of yore, and we thus got -speaking concerning such messages (or as they are often rightly called -tell-o-crams). He asked me if I had ever noticed the case where a -gentleman telegraphed for _two hand_ bouquets, and the operator changed -_hand_ into _hund_ and added _red_, making the order for “Two hundred -bouquets.” The florist delighted at the extensive order, procured a -quantity of expensive flowers, which the other party of course refused -to accept, so the poor flower-man had to sue the company for damages, -which he recovered,[723] as well on the ground of breach of contract, -as of breach of duty, the telegraph company being public servants. - -“I believe that where the company give notice that they will not be -responsible except for repeated messages, such a condition will be held -good,” I said. - -“Yes.[724] There have been several cases showing the damage which the -company will have to pay for mistakes in the performance of their duty: -in one where a merchant sent the message ‘Stop sewing pedal braid till -I see you,’ and it was delivered ‘Keep sewing, etc., etc.,’ and in -consequence a large quantity of unfashionable braid was manufactured -which the merchant received and disposed of in the best manner. He was -held entitled to recover the whole loss sustained in consequence of -the error;[725] and it was so held where the message was changed from -‘5,000 sacks of salt,’ into 5,000 casks:[4] the fact that the error -was made in the transmission because the message was unintelligible to -the operator will not excuse the company, so long as the words were -plain.”[726] - -“How is the law in England?” - -“It has been held there, and in Canada, that the party employing the -telegraph company, or sending the message on his own account, is the -only party who can maintain an action for any failure to perform -their duty in respect of the message.[727] And where a message was -sent for _three rifles_ and when received it read _the rifles_, and -the plaintiff supposing it referred to a former communication sent -the sender of the despatch fifty rifles, the number before named; and -these were refused; the plaintiff sued the sender for the price, but -the court held that the defendant was not responsible for the mistake -in transmitting the message, and that the plaintiff could only recover -for three rifles.[728] The American jurists think that the English -courts are guilty of an inconsistency, if not of a blunder, in holding -that the only party who can sue the company is not responsible for -the mistake. They say that the party who suffers by the mistake -should, at all events, be allowed to maintain an action to recover -the damage sustained by him; and they say that is the rule throughout -the republic.[729] In an action against the company that delivers -the message, where it has passed over several lines, they may excuse -themselves by showing that the negligence complained of was that of -some prior line.[730] Where there are several connected lines the -company that took the message are generally liable for any negligence -or mistake in the transmission.”[731] - -“It seems to be the law that the regulations of a telegraph company -relieving them from liability, unless the message is repeated, are -reasonable, and will free them from the effects of many mistakes;[732] -but they will not be construed so as to release the company from -liability occasioned by their own wilful misconduct or negligence,[733] -as where _our_ was changed into _your_,[734] or the message was never -sent,[735] or delayed in delivery;[736] there must, however, be proof -of negligence distinct from the infirmities of telegraphing.[737] Some -of the American courts, however, have held that the receiver of the -message is not bound by such a notice.[738] The company may restrict -their liability on other points as well, by giving notice; but the -restriction must be reasonable, not one, for instance, that the company -would not be responsible for mistakes to an amount greater than that -paid for the message.[739] The notice will, moreover, only benefit the -company to which it is confined by the contract, and not a connecting -line.[740]” - -“But suppose one is not aware of these rules and regulations?” - -“To prevent one recovering they must be brought home to his -knowledge[741] but he will be presumed to know what is on the blank -used, and to make the conditions thereon his own, whether he read them -or not.”[742] - -“Speaking about the freaks of the telegraph, did you see that one about -the young parson who was about to start for his new parish, but was -unexpectedly delayed by the inability of the Presbytery to ordain him? -To explain his non-arrival he telegraphed to the church officials, -‘Presbytery lacked a quorum to ordain.’ In the course of its journey -this got strangely metamorphosed, and the message-boy handed to the -astonished deacons a telegram saying, “Presbytery tacked a worm on to -Adam.” The sober elders were sorely discomposed and mystified, but -after grave consultation the happy thought struck one of them that this -was the new minister’s facetious way of announcing his marriage, and -accordingly they provided lodgings for two instead of one.” - -“That is rather rich.” - -Thus chatting with my friend about the telegraph, the law and the -profits thereof, occasionally indulging in the luxury of that odious -weed of the great Sir Walter Raleigh, and frequently practising the -bibulistic art, the time passed rapidly and pleasantly enough, and at -length the shrill ear-piercing screech of a locomotive announced the -arrival of the train, containing, as Horace neatly puts it, _animæ -dimidium meæ_, or as ordinary folks say, “my better half.” After the -usual osculatory exercises, I inspected the amount of her handboxes, -bundles, satchels and checks, and concluded that it would be useless to -expect a cabby to carry home such a vast amount of baggage, and at well -nigh the noon of night it would be equally vain to endeavor to obtain -the services of a carter; so, knowing that travellers have a reasonable -time to claim and remove their baggage, I determined to leave it at -the station for the night. - -With the checks clinking together in my pocket and my wife by my side, -and Eliza Jane in front of me, I drove home comfortably, thinking that -in the morning the checks would bring forth the trunks; but alas! I -leant upon a broken reed, and ere the morrow’s light appeared the -baggage and my right to recover for its loss had vanished for ever and -ever, like a morning mist before the rising sun. - -A fire broke out at the station and favored by the winds of heaven it -grew into a mighty conflagration, and before the morning watch the -devouring element had consumed the station and all that therein was. - -After a visit to the charred and smouldering ruins of the once handsome -depot--my numerous inquiries having confirmed my worst fears as to the -total loss of my wife’s apparel--I returned to my office to consult -the law on the subject, before I encountered her ladyship with the -direful news of the antics of the Fire Fiend. There I quickly found -that after a reasonable time and opportunity to take away his baggage -has been given to a traveller, the company’s responsibility as carriers -ends: they are no longer responsible for its absolute security, but -degenerate into mere warehousemen bound to exercise only that care -which a prudent man ordinarily does in keeping his own goods of a -similar kind and value;[743] and that care is exercised by the company -placing the goods in a secure warehouse;[744] or, as a Canadian Chief -Justice of high repute and great experience says, “the terminus of the -transport being reached, the duty of the common carrier is fulfilled by -placing the goods in a safe place, alike safe from the weather and from -danger of loss or theft.”[745] It was perfectly clear that the company -was not responsible to me for the loss of my baggage,[746] through the -foul pranks of the Fire Fiend. And it would have been just the same -if it had been stolen from the warehouse;[747] or if on the arrival -of the train I had taken possession of the trunks, and afterwards -for my own convenience handed them back to the baggage-master at the -station to be kept until sent for, and they had come to grief or been -pilfered;[748] unless, indeed, there was some gross negligence on the -part of the company. And I found by my books that it is the duty of the -company to have the baggage ready for delivery upon the platform, at -the usual place, until the owner may with due diligence call for, and -receive it; and that it is the owner’s duty to call for and remove -it within a reasonable time; and that “reasonable time” is directly -upon the arrival of the train, making a reasonable allowance for -delay caused by the crowded state of the depot at the time; but that -the lateness of the hour makes no difference if the baggage be put -upon the platform.[749] Nor does the fact of it being Sunday make any -difference.[750] But if the traveller does not choose to call and take -away his _impedimenta_ (as Julius Cæsar calls it), the company do all -they need by putting it into their baggage room and keeping it for him, -with the liability of ordinary warehousemen. - -Thus conscious that I should wring nothing from the iron grasp of the -railway company, and that out of my own professional earnings I should -have to replenish my wife’s wardrobe, I went home sad, down-cast and -dejected, to break the direful news to her. - -Scarcely had I entered my house, which had been so peaceful and calm -during the past few weeks, when my _alter ego_ flew at me with a -perfect storm of words and questionings as to why her trunks had not -yet come up, and assertions that she had literally nothing to wear. -(Though to the eyes of an ordinary mortal she appeared far from being -_in puris naturalibus_.) - -When I told of the fate that had befallen her paraphernalia the storm -increased into a hurricane, and when it was announced that the company -were not liable, a perfect tornado--a cyclone--a typhoon--a simoon--of -words, whirled with terrific fury around my head, then a perfect -waterspout shot forth; and I, remembering suddenly an appointment down -town, vanished from the scenes, resolved that henceforth both myself -and my amiable--but hysterical--spouse would eschew the iron horse and -his train forever, and living peaceable at home avoid the Wrongs and -Rights of Travellers by Rail, by Stage, by Private Conveyance. - - -FOOTNOTES: - -[710] Bayley _v._ Manchester, etc., Rw., L. R., 7 C. P. 415. - -[711] Ibid. - -[712] Phil. & R. Rw. _v._ Derby, 14 How. 468; Noyes _v._ Rutland, etc., -Rw., 27 Vt. 110; Yarborough _v._ Bank of England, 16 East. 6. - -[713] Roe _v._ Berkenhead & L. Rw., 7 W. H. & G. 36. - -[714] Craker _v._ Chicago & N. W. Rw., 36 Wis. 657. - -[715] Bass _v._ Chicago & N. W. Rw., 36 Wis. 450; Craker _v._ C. & N. -W. Rw., 36 Wis. 657; Goddard _v._ G. T. R., 57 Me. 202. - -[716] M. & M. R. R. Co. _v._ Finney, 10 Wis. 388; but see Goddard _v._ -G. T. R., 57 Me. 202; Sanford _v._ Rw. Co., 23 N. Y. 343. - -[717] Goff _v._ Gt. Northern Rw., 3 E. & E. 672. - -[718] Giles _v._ Taff Vale Rw., 2 E. & B. 822; Moore _v._ Metropolitan -Rw., L. R., 8 Q. B. 36. - -[719] Phil. & Read. Rw. _v._ Derby, 14 How. (U. S.), 468. - -[720] Edwards _v._ London & N. W. Rw., L. R., 5 C. P. 445. - -[721] Poulton _v._ London & S. W. Rw., L. R., 2 Q. B. 534. - -[722] Ibid. - -[723] N. Y. & Wash. Print. Tel. Co. _v._ Dryburgh, 35 Penn. St. 298. - -[724] McAndrew _v._ Electric Tel. Co., 17 C. B. 3; Wann _v._ Western, -etc., Tel. Co., 37 Mo. 472. - -[725] Lockwood _v._ Ind. Line of Tel. Co., N. Y., C. P. 1865. - -[726] Rittenhouse _v._ The same, 1 Daly, C. P. 474. - -[727] Playford _v._ United Kingdom Tel. Co., L. R., 4 Q. B. 706; Feaver -_v._ Montreal Tel. Co., 23 U. C. C. P. 150. - -[728] Henkel _v._ Pape, L. R., 6 Ex. 7. - -[729] Redfield on Railways, vol. ii., p. 314. - -[730] La Grange _v._ S. W. Tel. Co., 25 La. An. 383. - -[731] De Rutte _v._ Tel. Co., 1 Daly, 547. - -[732] McAndrew _v._ Electric Tel. Co., 17 C. B. 3; but see Tyler _v._ -W. U. Tel. Co., 5 Chi. Leg. News, 550; Wolf _v._ W. Tel. Co., 62 Pa. -St. 83. - -[733] N. Y. & Wash. Tel. Co. _v._ Dryburgh, 35 Penn. St. 298; True _v._ -International Tel. Co., 60 Maine, 9; Sweetland _v._ Illinois, etc., -Tel. Co., 27 Iowa, 433. - -[734] Seilers _v._ W. U. Tel. Co., 3 Am. Law Reg. 777. - -[735] Birney _v._ N. Y. & Wash. Tel. Co., 18 Maryland, 341. - -[736] U. S. Tel. Co. _v._ Gildersleeve, 29 Maryland, 232; Bryant _v._ -Am. Tel. Co., 1 Daly, 575. - -[737] Ellis _v._ Am. Tel. Co., 13 Allen, 226; and Wann _v._ West. U. -Tel. Co., 37 Mo. 472. - -[738] La Grange _v._ S. W. Tel. Co., 25 La. An. 385. - -[739] True _v._ International Tel. Co., 60 Maine, 9. - -[740] Squire _v._ W. U. Tel. Co., 98 Mass. 232. - -[741] Camp _v._ West. Union Tel. Co., 1 Met. (Ky.) 164. - -[742] West. Union Tel. Co. _v._ Carew, 15 Mich. 525; Wolf _v._ W. Tel. -Co., 62 Pa. St. 83; but see Henderson _v._ Stevenson, L. R., 2 S. & D. -470. - -[743] Shepherd _v._ Bristol & Ex. Rw., L. R., 3 Ex. 189; Mote _v._ -Chicago & N. W. Rw., 1 Am. Rep. 212; 27 Iowa, 22; Burnell _v._ N. Y. -C., 45 N. Y. 187; Rock Island & Pacific Rw. _v._ Fairclough, 52 Ill. -106. - -[744] Bartholemew _v._ St. Louis, Jacksonville, etc., Rw., 53 Ill. 227. - -[745] Inman _v._ Buffalo & L. H. Rw., 7 U. C. C. P. 325; O’Neill _v._ -Great Western Rw., Ibid. 203; Bowie _v._ Buffalo, Brantford, & G. Rw., -Ibid. 191. - -[746] Roth _v._ Buffalo & State Line Rw., 34 N. Y. 548. - -[747] Penton _v._ Grand Trunk Rw., 28 U. C. Q. B. 367; Campbell _v._ -The same, Hilary Term, 1873 (Ont.). - -[748] Minor _v._ Chicago & North Western Rw., 19 Wis. 40. - -[749] Ouimit _v._ Henshaw, 35 Vt. 605. - -[750] Jones _v._ Norwich & N. Y. T. Co., 50 Barb. 193. - - - - - INDEX. - - - A. - - PAGE - - =Accident=, different kinds of, 7 - horses frightened by, 5 - not sufficient proof of negligence, 106, 177 - carriers not liable for unforeseen, 54, 176 - number of, 185, 188 - - =Accident Insurance=, what is an accident?, 36 - Lord Cockburn’ s definition, 36 - Michigan definition, 36 - Maryland and New York, 36, 37 - injury, no accident to car, 37 - compensation for injuries, 37, 38 - none for loss of time, 38 - injuries from external causes, 39 - while bathing, 40 - caused by negligence, 41 - wilful exposure, 42 - - =Acts of Parliament=, not those of the Apostles, 119 - - =Agents.= (See SERVANTS.) - carrier liable for torts of, 248-251 - for wilful acts within range of employment, 248 - injured one must show authority of, 248 - persons acting, presumed to be, 250 - assault by, 249 - exemplary damages, 250 - carrier liable if agents disobey, 251 - but not when they exceed authority, 251 - - =Alighting at Railway Stations=, cars should be stopped at safe - place, 147, 148 - is calling out name an invitation to alight, 152-154 - depends on circumstances, 153 - stopping of train an invitation, 153 - calling out name a mere intimation, 154 - jumping off the steps, 150, 151 - company should assist at difficult places, 154 - passenger should ask train to be put in a proper place, 154 - alighting when warned not to, 155 - sufficient time must be given, 155 - sick or drunken passengers, 156 - - =American Cases=, authority of, 109 - - =Anecdote=, Lord Kenyon and Erskine, 19 - The Devil’s Invincibles, 59 - a sleeping-car, 205 - - =Arrests=, by carrier’s servants, 166, 251 - - =Authority, Acts in Excess of=, arresting to prevent a crime, 166 - carriers not liable for acts of agents, 251 - - - B. - - =Baby=, value of leg of, 222 - - =Baggage of Passengers.= (See CHECKING BAGGAGE.) - falling on one’s toes, 123 - checking, 95, 96 - what is personal baggage?, 158, 162, 240 - owner may recover for loss, unless negligent, 82, 159 - what is not personal baggage, 160, 165 - goods cannot be taken instead of, 161 - carrier not liable beyond actual value, 164 - notice limiting liability, 165, 239 - when liability begins, 236 - when it ceases, 258, 259 - can only recover for one’s own, 237 - left in car by servant, 237 - need not be marked with name, 237 - carrier liable even if with owner, 83, 238 - loss on other lines, 238, 239 - money with baggage, 108-110 - is a present baggage?, 241 - what is sufficient re-delivery, 242, 258, 259 - hotel omnibuses, lost in, 242 - liability ceases when ready for re-delivery, 257 - loss of by fire at station, 257 - stolen from warehouse, 258 - owner should remove it in reasonable time, 259 - not properly packed, 48 - carrier has lien on, for fare, 76 - - =Bed-clothing=, is it baggage?, 163 - - =Bridge=, when municipality must repair, 85 - at railway station, out of repair, 93 - - - C. - - =Calling out name of station=, duty of conductor (See ALIGHTING AT - STATIONS.), 153, 155 - - =Care.= (See DUE CARE, NEGLIGENCE, PASSENGER CARRIERS.) - - =Carelessness.= (See NEGLIGENCE.) - _Of Railway Company_, misplacement of switch, 104 - injury not positive proof of, 106 - _Of Injured Party_, jumping off platform, 105 - running against fixtures, 105 - losing money, 110 - jumping off train, 150-152 - jumping off train in motion, 122, 155, 235 - - =Carriers’ Act=, 111 - - =Carrying past Stations=, damages for, 120, 121 - - =Change=, right to expect or demand, 125 - helping one’s self to, 166 - - =Checking Baggage=, when must be done, 95, 96 - penalty for refusing, 95 - not necessary, 158 - is merely additional precaution, 159 - check is evidence of receipt of baggage, 167 - - =Children=, running over, 26, 27 - damages for injuring, 196-200 - loss of leg and hand, 196 - travelling without ticket, 197 - misconduct of guardian, 198-200 - wandering about, 199, 200 - care required of parents, 200 - damages for death of, 218, 219 - value of limbs of, 196, 222 - - =Cloak Room=, should be kept open, 164 - - =Colored Persons=, separate cars for, 128 - - =Compensation.= (See ACCIDENT INSURANCE, DEATH, DAMAGES.) - - =Conductor=, wilful delay of, 101 - his hat and badge, 111 - his duty when there is fighting in cars, 126, 127 - whom he may refuse to receive, 126 - when he may eject passenger, 131 - is the agent of company, 133 - carelessness of, 170, 171 - should call out names of stations, 155 - kissing a traveller, 249 - - =Crossings.= (See RAILWAY CROSSINGS.) - - =C’rum Cater=, 147 - - - D. - - =Damages.= (See PASSENGER CARRIERS, NEGLIGENCE.) - from bad roads, 30, 33 - trains behind hand, 98, 99 - unpunctuality of trains, 99, 100 - passenger carried too far, 120, 121 - passenger bitten by dog, 124 - passenger injured by others, 127 - passenger unlawfully ejected, 132, 135 - too remote, 133 - for loss of baggage. (See BAGGAGE.) - injury caused by _vis major_, 178 - unforseen accidents, 176, 182 - discoverable defects, 177, 179 - injuries to children. (See CHILDREN.) - to passengers and employees, 209, 226 - injuries producing death. (See DEATH.) - amounts recovered for injuries and death, 218-223 - excessive, ground for new trial, 222 - prospective, 223 - for what injuries given, 223, 224 - - =Deadhead.= (See FREE PASSENGERS.) - - =Death Produced by Injuries=, remedy for, purely statutory, 209 - Lord Campbell’s Act, 209 - who may sue for damages, 210 - damages for pecuniary loss, 210 - for mental anguish, 210-212 - loss of wife, 212 - loss of mother, 212 - death must not be instantaneous, 214 - different rules as to amount of damages, 214-217 - damages not to be full compensation, 217 - deceased diseased, or of bad character, 217 - or heavily insured, 217, 218 - amounts given, 218-220 - settlement before death, 218 - - =Delay=, carrier liable in damages for, 98, 99 - from bad roads, 25 - - =Devil’s Invincibles, the=, 59 - - =Dog=, company responsible for acts of, at station, 124 - lost dog, 235 - - =Driving.= (See STAGE COACHES, ROAD.) - negligence in, chapters I. and II. - owner, if driving, responsible, 13 - carriage jointly hired, joint liability, 13 - too fast, 22 - upsetting, 23, 29, 56 - turning out, when, 23 - running over children, 26, 27 - running against drunken men, 28 - driver must be capable, 29 - horses running away, 31-34, 55 - horses shying, 32 - horses and carriage must be sound, 33 - need not examine carriage every day, 65, 66 - in dangerous places, 84 - - =Drunken Passenger=, when carrier may refuse to take, 126, 127 - when conductor must assist, 156 - - =Due Care=, what it is, 182 - carrier must exercise, 176 - not enough to give up passenger’s corpse, 176 - carrier must use best precautions in practical use, 177 - - - E. - - =Eviction from Cars=, for not showing ticket, 125 - - =Excessive Damages=, a ground for new trial, 222 - - =Excursion Trains=, company liable for accidents on, 202 - - - F. - - =Fare.= (See TICKETS, PASSENGERS.) - passenger refusing to pay on cars, 125 - prepayment on stages, 45, 47 - if paid, seat reserved, 46 - if not prepaid, payable at end of journey, 47 - carrier has lien on baggage for, 76 - but not on passenger, 76, 139 - tendering at last moment, 125 - must be paid even if no seat provided, 130 - - =Ferryman=, Fare in advance to, 68 - must provide safe boats, etc., 68, 69 - liable for safety of horses, though driven by owner, 69, 70 - must work at all times, 70 - horses jumping overboard, 70 - - =Fighting in Car=, 126, 127 - - =Fingers, Squeezing, in Car=, 170, 171 - - =Fire=, baggage burnt at station, 257, 258 - - =Fishing-Rod=, is personal baggage, 243 - - =Fog=, accidents arising from, 54 - - =Free-pass Holders=, entitled to be carried safely, 201, 202 - unless special agreement exempting carrier, 202, 204 - newsboy, 204 - loss of baggage of, 236 - - - G. - - =Getting on and off=, stage coach, 79 - train in motion, 155, 235 - - =Good for this day only=, ticket marked, 114 - or “for this trip”, 114 - “for twenty days from date”, 115 - - =Gun and Pistols=, considered personal luggage, 243, 244 - - - H. - - =Hand=, value of a, 220 - - =Horses Running Away=, 31, 34, 55 - - =Husband and Wife=, entitled to carry double baggage, 107 - henpecked husband’s will, 213 - injuries to wife, 224 - - - I. - - =Ice and Snow=, on roads and sidewalks, 8, 9 - falling off houses, 10 - on railway platforms, 94 - - =Indian Railways=, 175 - - =Indecision=, 75, 163 - - =Infirm and Aged People=, accidents to, 11, 12 - - =Insurance against Accidents=, 36-42 - - =Invitation to alight.= (See ALIGHTING AT STATIONS.) - - =Iron Horse=, injuries from charge of, 104 - - - J. - - =Jewelry=, is personal baggage, 240, 245 - - =Jumping off= stage coach, 50 - train in motion, 122, 155, 235 - through fear of accidents, 122, 156 - - =Junctions=, liability of various companies at, 123 - - =Jury=, decisions of, 195 - - - K. - - =Kiss=, company pays for conductor’s, 249 - - - L. - - =Ladies’ Car=, who may use, 129 - when train full men may enter, 130 - - =Lawyers=, 76, 77 - - =Leg=, value of a, 221 - value of a baby’s, 222 - - =Limitation of Liability=, of carriers for baggage, 165, 239 - - =Locomotives=, must ring or whistle at crossings, 64, 88 - - =Loss of Time=, 224 - - =Lost Baggage.= (See BAGGAGE.) - - =Lost Ticket.= (See TICKET.) - loss of ticket falls on passenger, 117, 118 - even though previous purchase proved, 119 - - - M. - - =Man run over=, 232 - - =Master.= (See RAILWAY COMPANY, STAGES, STEAMBOAT.) - when liable for acts of servants, 2, 3 - - =Matrimonial Prospects=, damages for injuries to, 224, 225 - - =Merchandise=, not personal baggage, 245 - - =Money of Passengers=, when carrier liable for, 82, 108-110 - negligence of passengers, 83, 110 - not beyond a reasonable sum, 108 - - =Musical Instruments=, are they personal baggage?, 244 - - - N. - - =Negligence of Party.= (See PASSENGER CARRIERS.) - in charge of children, 27 - in driving, 30-34 - plaintiff in fault, 28 - party is affected by driver’s negligence, 65 - at stations, 105 - arms and legs projecting, 169 - injury received in alighting, 151, 152 - in entering car, 171 - on platform car, or in baggage, wood, or freight car, 190-194 - no room inside, 191 - party in express car, 192 - when killed, 210 - - =Negligence of Railway Companies=, injury not sufficient proof of, 106 - starting train too soon, 122 - baggage falling on passenger, 123 - stopping at unsafe places, 147-153 - defect in car window, 169 - squeezing fingers, 170, 171 - unforeseen accident, 176 - injury _primâ facie_ proof of negligence, 177 - latent defects, 181, 182 - loss of a dog, 235 - not whistling at crossings, 64 - (See RAILWAY COMPANY, STATIONS.) - - =Negligence of Servants=, in driving, 2, 3, 4 - towards fellow-servants, 4 - baggage falling off track, 127 - - =Negligence of Stage Coach Owner=, liable for negligence of driver, - 50, 51 - drivers must watch where they go, 51 - plaintiff’s negligence, 51 - owner answerable for smallest negligence, 52 - or defects in the coach, 52 - unless defects are hidden, 52 - driver must be discreet, and all things sound, 53 - owners not actual insurers, 54 - real accidents, 54, 55 - horses running away, 55 - passenger suffers from driver’s neglect, 56, 65 - party falling in ascending, 79 - damage from rain, 81 - acts of God, 81 - driver charging for parcels, 83 - dangerous places, 84 - - - P. - - =Passenger.= (See FARE, TICKET.) - _By Coach._ - negligence of driver affects passenger, 56, 65 - driver must stop at usual places, 78 - _By Railway._ - on wrong train, 122 - refusing to pay, may be put off, 125, 131 - tendering fare at last moment, 125 - drunk and disorderly, 126, 127 - may be excluded for bad conduct, 127 - should be treated with respect, 129 - without seat, must pay, 130 - but may sue the company, 130, 131 - when he may be put off, 131 - ticket mislaid, 132 - damages for ejectment, 132-134 - killed in being put off, 135 - better quietly submit to conductor, 135, 136 - getting off at intermediate stations, 137, 140 - not delivering up or showing ticket, 137 - rights at way stations, 140, 141 - must conform to regulations, 190 - in improper places, 190-193 - walking through train, 194 - - =Passenger Carriers=, not insurers, 54, 176, 181 - extent of liability, 52-54, 181-184 - - =Pedestrians=, may walk on road, 3, 15 - must look out at crossings, 15 - - - R. - - =Railway Accidents=, very few, 185-188 - - =Railway Companies.= (See NEGLIGENCE.) - sign-post in the way, 67 - letting off steam at crossing, 67 - must take more care of passengers than strangers, 92 - need only stop at usual places, 121 - must maintain order, 127 - must forward passengers if line blocked, 173 - are not insurers of passengers, 176, 181 - extent of liability, 176, 180 - rule in England as to liability, 178 - in New York, 177 - do not warrant that car is perfect, 181 - presumption when passenger injured, 177, 180 - responsible for utmost care, 176, 178, 183 - obligation extends to all apparatus of transportation, 177, 178 - perfect apparatus not expected, 177, 182 - degree of care required, 181-184 - must adopt every precaution in known use, 177 - contributory negligence, 190 - seats must be provided, 190, 191 - too many in train, 192 - injuries to children. (See CHILDREN.) - responsible for all lawfully aboard, 201 - may limit liability, 202-204 - limitation does not extend to independent wrongs, 203 - injuries producing death. (See DEATH.) - liability for acts of agents and servants. (See AGENTS, SERVANTS.) - bad construction of line, 208 - rule as to passengers and employees, 209-228 - wrongs done by strangers, 232, 233 - when liability for baggage ceases, 257, 258 - afterwards liable as warehousemen, 257 - - =Railway Act of 1868=, 119 - - =Railway Crossings=, people must look out at, 63, 64 - letting off steam at, 67, 68 - watchmen not always needed at, 88 - when crossing dangerous, 89 - bell or whistle to be sounded at, 64, 88, 89 - diligence required in crossing, though bell is not rung, 64, 90, 91 - negligence of driver of carriage affects all in it, 65 - leaving railway gates open, 90 - rails must be level with road, 92 - - =Railway Police=, 167 - - =Railway Stations.= (See ALIGHTING AT STATIONS.) - company liable for dangerous access to, 93, 145 - dangers at, 94, 104 - must be fit for occupation, 103 - must be careful at, 106, 141 - ferocious dogs at, 124 - platforms, 106, 145, 154 - hole in platform, 143 - should be properly fenced, 144 - should be lighted, 145 - - =Road=, should be kept in repair, 8, 57 - slippery, 8 - repair depends on locality, 11 - railing giving way on, 12 - accidents on Sunday on, 18, 19 - snow and ice on, 23, 24 - when impassable may go in fields, 24, 26 - deviating from, 29 - - =Road, Laws of the.= (See DRIVING.) - keeping on right side, 14 - greater care needed on wrong side, 14, 70, 73 - rules in England, Canada and United States, 71 - may be departed from, 72 - passing laden wagons, 72, 74 - not applicable to buildings, 74 - - =Runaway Horses=, injuries done by, 6, 31, 55 - - =Rural Sights and Sounds=, 60, 64 - - - S. - - =Samples and Patterns=, not personal luggage, 165 - - =Servants.= (See MASTERS, RAILWAY, STAGE.) - when master liable for acts of, 3 - master in general not liable for injuries to, 4 - negligence of fellow-servants, 226-228 - improper servants or machinery, 226 - who is a fellow-servant?, 228 - servants of different grades, 228 - - =Sidewalks=, should be safe and in repair, 8 - slippery, 9 - - =Sleeping-car Scene=, 205 - - =Smoking-car=, 130 - - =Snakes and Eels=, 6 - - =Snow Blockade=, duty of company, 173 - on Pacific Railway, 175 - - =Stage Coaches.= (See NEGLIGENCE.) - literature of, 44 - payment of fare. (See FARE.) - owner warrants soundness of stage and equipments, 45, 46, 53 - reserving inside, 46 - racing, 49 - negligence of driver, 50, 51 - passenger entitled to seat as agreed, 46, 79 - jolted off, 57 - time for refreshments, 78 - when fare paid, seat may be taken at any time, 79 - owners not actual insurers, 54 - - =Stations.= (See RAILWAY STATIONS.) - - =Stairway, slippery=, 94 - - =Stopping at way stations=, 115 - - =Strangers, acts of=, 102 - - =Sunday=, deeds of necessity and charity allowed on, 16, 17 - visiting sweetheart, 16 - going to church on, 17 - accidents on, 18 - - - T. - - =Telegrams and Telegraph Companies=, specimen telegrams, 252, 255 - company responsible for negligence, 252 - notice as to repeating telegrams, 252, 254 - effect of notice, 254, 255 - does not free from wilful mistakes, 254 - or delay in delivery, 254 - sender must be aware of the rule, 254 - company liable for their own default, 253 - who may sue, 253, 254 - - =Ticket=, not proof of contract to carry, 101, 121 - annual or season, 111 - passenger need not buy before starting, 112, 125, 138 - must be produced when demanded, 113 - exchanging ticket for check, 113 - “good for this day only”, 114 - “good for this trip only”, 114 - unmutilated, but old, 114 - coupon ticket, 115 - cannot be used twice, 115 - if journey interrupted, ticket useless, 116 - if lost, fare must be paid again, 117, 118, 139 - even if previous payment proved, 118, 119 - producing ticket, or eviction, 125 - ticket mislaid, 132 - unlawfully taken by conductor, 133 - discount on, 138 - children without, 197 - through ticket, 230, 231 - - =Time Tables=, representations in, 98 - must be produced, 101 - proof of, 101 - change of, 99 - - =Title Deeds=, not personal baggage, 160 - - =Tobacco-perfumed Stations=, 103 - - =Track=, must be kept in order, 229 - - =Trains=, must be run at regular hours, 96 - time of starting must be advertised, 96 - unpunctuality of, 98, 99 - missing connection, 99, 100 - taking special train, 100 - separate car for colored people, 129 - ladies’ car, 129 - excursion trains, 128 - smoking car, 130 - starting too soon and without notice, 140, 141 - running over a man, 232 - - =Travelling in Carriage=, within meaning of accident ticket, 40, 41 - - - U. - - =Upsetting.= (See DRIVING.) - - - V. - - =Velocipedes are nuisances=, 12 - - - W. - - =Walking on Track=, 92 - - =Windows of Car=, falling down, 169 - need not be protected, 170 - - - - Transcriber’s Notes - -Errors in punctuation have been fixed. - -Page 19: In the footnote, “Sutton _v._ Wauwantosa” changed to “Sutton -_v._ Wauwatosa.” - -Page 29: “To the tintinabulation” changed to “To the tintinnabulation” - -Page 48: In the footnote, “Mallory _v._ Traveller” changed to “Mallory -_v._ Travelers’” - -Page 155: “when one attemped” changed to “when one attempted” - -Page 161: “a bran new” changed to “a brand new” - -Page 171: “in shutting to the” changed to “in shutting the” - -Page 201: “the president of of one” changed to “the president of one” - -Page 248: “the conrse” changed to “the course” - -*** END OF THE PROJECT GUTENBERG EBOOK THE LAW OF THE ROAD *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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