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.