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.