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.”