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.”