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”