FOOTNOTES:
[139] Chitty on Contracts, 292.
[140] Bremner v. Williams, 1 C. & P. 414; Sharp v. Grey, 9 Bing. 457.
[141] Crofts v. Waterhouse, 3 Bing. 321; Jones v. Boyce, 1 Stark. 493; Stokes v. Saltonstall, 13 Peters, 181; Ingalls v. Bills, 9 Met. 1.
[142] Long v. Horne, 1 C. & P. 611.
[143] Ker v. Mountain, 1 Esp. 27.
[144] Howland v. Brig Lavinia, 1 Peters Adm. 126; Detouches v. Peck, 9 Johnson, 210.
[145] Walker v. Jackson, 10 M. & W. 161.
[146] Mayor v. Humphries, 1 C. & P. 251; Gough v. Bryan, 5 Dowl. 765.
[147] Ingalls v. Bills, 9 Met. 1; Stokes v. Saltonstall, 13 Pet. (U. S.) 181; Frink v. Potter, 17 Ill. 406.
[148] Jones v. Boyce, 1 Stark. 493.
[149] Dudley v. Smith, 1 Camp. 167.
[150] Colegrove v. N. Y. & Harlem, etc., R. R. Co., 6 Duer, 382.
[151] Keith v. Pinkham, 43 Maine, 501; Lackawana & B. R. R. Co. v. Chenewirth, 52 Penn. St. 382.
[152] Harris v. Costar, 1 C. & P. 636; Christie v. Griggs, 2 Camp. 79.
[153] Sharp v. Grey, 9 Bing. 457.
[154] Ingalls v. Bills, 9 Met. 1.
[155] Frink v. Potter, 17 Ill. 406.
[156] Christie v. Griggs, 2 Camp. 79.
[157] Crofts v. Waterhouse, 3 Bing. 319; Farish v. Reigle, 11 Gratt. 697.
[158] Stanton v. Weller, Hil. Term, 6 Vict. U. C.
[159] Aston v. Heaven, 2 Esp. 533.
[160] Crofts v. Waterhouse, 3 Bing. 321.
[161] Stokes v. Saltonstall, 13 Peters, 181.
[162] Aston v. Heaven, supra.
[163] Parker v. Flagg, 26 Me. 181; Add. on Contracts, 495.
[164] Robinson v. Bletcher, 15 U. C. Q. B. Rep. 160.
[165] Ibid.
[166] Illidge v. Goodwin, 5 C. & P. 190; Park v. O’Brien, 23 Conn. 339.
[167] Strup v. Edens, 22 Wis. 432.
[168] Goodman v. Taylor, 5 C. & P. 410; Kennedy v. Way, Brightley (Pa.), 186.
[169] Moffatt v. Bateman, L. R., 3 P. C. App. 115.
[170] Ibid.
[171] Curtis v. Drinkwater, 2 B. & Ad. 169.
[172] Wallace v. New York, 2 Hilton, 440; Phillips v. Veazie, 40 Me. 96.
[173] Merrill v. Hampden, 26 Me. 236; Davis v. Bangor, 42 Me. 522.
[174] Cobb v. Standish, 14 Me. 198.
[175] Littlefield v. Biddeford, 29 Me. 310.
[176] Talmadge v. Zanesville & M. Road Co., 11 Ohio, 197.
[177] Chappel v. Oregon, 36 Wis. 145.
[178] Cremer v. Portland, 36 Wis. 92.
[179] Butterfield v. Forrester, 11 East, 60.
CHAPTER V.
NEARLY DRIVEN TO DEATH, AND HOW TO PASS.
Narrow Escape.—Look out for the Locomotive when the Bell rings.—Railway not liable when Driver in Fault.—Horses frightened by Engine.—Ferry-boats and Men.—On the Wrong Side.—The Laws of the Road.—Fatal Indecision.—Lien on Trunks.—Reflections on Lawyers.
We had a sharp awakening from our calm repose. A shrill cry of “Stop!” a jerk that nearly threw us to the ground as the driver reined in his horses, the wild fierce screech of an engine, the rumbling roar of a train as it dashed by, recalled us effectually from our wanderings in dream-land to the fact that we had been near a sudden and a fearful death. The driver had been nodding sleepily on his box and had not noticed that we were so near a railway crossing, and so had not looked out for the train; and when aroused, the horses’ feet were actually upon the track and the cars but some seventy yards distant. The train as it rushed past almost scraped the horses’ noses, so little had he been able to back them. On looking round I saw that the track must have been visible for some time before we came upon it, and one of the ladies said that she had heard a whistle a few seconds previously.
Of course, as might be expected, we all launched forth against Master Coachee, who was too frightened to reply. I said:—
“Don’t you know that you are bound to keep your eyes open? It is your duty, and a duty dictated by common sense and prudence, on approaching a crossing, to do so carefully and cautiously, both for the sake of your own passengers and those travelling by rail.”[180]
“Yes,” chimed in my friend, “Chief Baron Pollock says, that a railway track per se is a warning of danger to those about to go upon it, and cautions them to see whether a train is coming.”[181]
“One must judge and act reasonably in crossing a track,” I continued. “One must not blindly and willfully drive upon it whether there is danger to be apprehended from his doing so or not. If one willfully goes upon the line of rails, as you were about to do, when danger is imminent and obvious, and sustains damage, he must bear the consequences of his own rashness and folly.[182] In fact, of late it seems to have been held that a man crossing a railway where there are no gates or flagmen must stop, listen, and keep a sharp lookout for the trains.”[183]
“And,” quoth my new friend, “a traveller is not exonerated from the duty of looking up and down the rails before going upon them, by reason of the engineer omitting to ring the bell or blow the whistle; nor is the company in such a case liable for injuries,[184] unless it is shown that the engineer’s omission had a tendency to produce the loss or damage.”[185]
“The Court of Appeals in the State of New York, however, holds that a traveller on a public road has a right to rely upon railway companies obeying the law and giving the necessary warnings when a train is approaching a crossing.[186] And if through negligence horses are frightened at a crossing, the railway company is responsible for all damages arising.[187] Moreover, the late Sir J. B. Robinson, C. J., of Ontario thought that where the proper signals were neglected, the company could not excuse themselves by showing that the injured one did not manage so well as he might have done, or that his horse was restive or unsteady;[188] and”—
Here a low wailing cry of “Oh, we might have all been killed—been killed—been killed”—uttered by one of the old maids, the others joining in the chorus, struck upon our ears. I chimed in with:—
“And if we had, allow me to inform you ladies, that neither we ourselves nor those who come after us could recover damages against the company therefor, because it would have been owing to the gross carelessness of our driver,[189] and we would be considered as being in the same position as he is and partakers with him in his sins.”[190]
“That’s so,” said my friend. “Every traveller in a conveyance is so far identified with the man who drives or directs it, that if any injury is sustained by him from collision with another vehicle, through the joint negligence of the drivers of the two traps, so that his driver could not maintain an action against the other driver, the passenger is himself equally prevented suing.”[191]
“What a shame!” chorused the Graces, plus one. “And is there nobody you can punish?” they querulously queried.
“Oh, yes; you can sue your own driver, or his employer. You have a clear and undoubted remedy against them.”[192]
“Much good it would do you to sue me,” growled the man. “You can’t take the breeks off a Heelander.”
“It has always seemed to me,” I remarked to the legal gentleman beside me, “to be highly unreasonable that by a legal fiction the passenger should be so identified with the driver. What do you think on that point?”
“I quite agree with you,” he returned, “and with my celebrated namesake, Mr. Smith, and I think that the question why both the wrong-doers should not be considered liable to a person free from all blame—not answerable for the acts of either of them—and whom they have both injured, should be more seriously considered than it has yet been.”[193]
“I was glad to see that recently in New Jersey where a man on a street car was injured by a railway train, the court held that the negligence of the car-driver could not prevent the man from getting damages, the driver not being his servant.”[194]
“By the way,” said my friend, “did you notice how near we came to the post of the railway crossing sign-board, as the man backed the horses from the track? I think such posts are a perfect nuisance.”
“They are not necessarily an indictable nuisance; and as the law allows them to erect such a sign, they would not be liable for any accident arising from the posts obstructing part of the road, at least if they were placed in a reasonably proper manner with a due regard to all the surrounding circumstances.[195] How the steam came out of the engine! It is a wonder that the horses were not more frightened!” I added.
“Length of days, hard work, and shortness of commons have doubtless curbed their spirits. I remember on one occasion some railway employees were endeavoring to put an engine on the track near a crossing, when my friend Mrs. Stott and another lady drove up in a wagon; they asked if they might cross. One man said ‘Yes,’ and then laughingly winked at the others. Mrs. S. got out and led the horse, but before they had passed over steam was let off through the sides of the locomotive; the horse got frightened, jumped upon my friend, knocked her down, ran over her and away. The court held the railway liable for this injury; the company tried to avoid the verdict by saying that the damages arose from the unnecessary and wanton act of their servants; but the judges inclined to the opinion that even if the act had been unnecessary and wanton, reckless and improper, still as it was done in the course of the servants’ employment, and for the purpose of promoting it, the company must bear all the responsibility.[196] Of course, however, companies are not liable for accidents caused by horses getting frightened at the smoke, steam, or noise of their trains, when their servants do nothing amiss.”[197]
Presently we came to a broad river unspanned by any bridge; we had to cross, therefore, in an old-fashioned ferry. All dismounted. I noticed that the little wharf to which the scow was attached was much the worse for wear, but the nymphs and naiads fell in love with none of us, so no one broke through, fortunately for the ferryman, for he would have been liable for any accident.[198]
“Ha!” said my friend, as the stage gave a great bump in lighting on the boat. “My Christopher Columbus, you ought to have your flats so that all drivers and carriages may embark with ease; and that jolt rattled the ivories in Jehu’s jaw.”[199]
“Shut up yours, and shell out,” was the laconic response.
“How deeply seated is habit,” spake Mr. Smith. “The bee makes honey just as sweet now as when Samson stole it from the lion; and this pitiless navigator must be paid his fare before we start,[200] just as old Charon had to receive his obolus ere he would ferry his fleshless passengers across the gloomy Styx.”
“You’re too fleshy to lean up agin those thair sticks, unless you want to take a header backwards,” quoth the ferryman.
“Oh!” exclaimed Smith, starting inwards as the rail started outwards, “you ought—you should—you are bound by law to have your boat, and your slips, and your landing stages, and everything else, safe and secure, not only for passengers, but also for their horses and carriages, luggage and merchandise;[201] and you are liable for any damage happening to a vehicle, or the horses, as soon as they are on board, although the driver still keeps charge.”[202]
The latter part of the remark seemed called forth by the coach having begun to slip backwards towards the water.
“That thair is open to argyment,” said the boatman. “I guess I knows my bizness. Some old judges say that a ferryman is not liable unless the animals be put in his charge;[203] nor where the driver don’t take care.[204] Nor yet where the critters are so spry that they keant be trusted on a boat,[205] which I calkerlate them thair nags aint.”
“Down in Mississippi, a ferryman had to pay for two stage-horses that jumped overboard, and the court said that as soon as the property is put on the boat, the boatman has it primâ facie in his charge, and is responsible for it, unless the owner consents to take exclusive charge.”[206]
“I guess I wish we poor chaps could make a prime and fashious charge. I have to work this old machine mornin’, noon, and night, barring when it is too windy, or I have gone to roost, as I live away over there.”[207]
Safely we passed o’er the flood, and safely disembarked and reseated ourselves in the venerable trap, which with creaks and groans—as though rheumatic pains shot through every bolt and bar—ascended the bank.
Just then we passed a heavy wagon. It was on the wrong side of the road, and we narrowly escaped collision. I sung out to the farmer driving it:—
“If you want to drive on the wrong side, old fellow, you should take more care and keep a better lookout,[208] for if an accident had happened, as we had not ample room to avoid your wheels, you would have been liable for the injury, being on the wrong side of the road.”[209]
“Fine day, sir,” was the only response that came, and our driver, with a grin, told me that the old man was as deaf as a door-nail.
My companion turned and said to me, “I have often wondered why the rules of the road should be so different in England from what they are in America. In the old country the three laws are: First, on meeting, each party shall bear to the left; second, in passing, the passer shall do so on the right hand; and, third, in crossing, the driver shall bear to the left and pass behind the other carriage.[210] In America, the first rule is the reverse, that is, each party must keep to the right;[211] but in passing, the foremost person bears to the left, and the other passes on the off side, and in crossing, the driver bears to the left hand and passes behind the other carriage—at least so says Story.”[212]
“’Tis singular that there should be the difference,” I remarked.
“But that is not the only point of diversity. In England these rules apply as well to equestrians as to carriages; while in the United States a traveller on horseback when meeting another equestrian, or a carriage, may exercise his own notions of prudence, and turn to the right or to the left.[213] Of course common consent and immemorial usage require that a horseman should yield the road to a wagon or other vehicle.[214] If, however, he is mulish and will not turn out when he might safely do so, and his steed is injured by a collision, he is remediless.[215] Again, when one is ahead in America he need not, unless he has some milk of human nature in his veins, turn out at all to let a man behind pass, if there is room enough on either side.”
“But if there is no room, what then?” I queried.
“Why, then, if it is practicable, the front one must give an equal portion of the road to his fellow biped behind; and if it is not practicable, number two must follow in Job’s steps and exercise the Christian grace of patience, and wait until a more favorable spot is reached. If number one will not turn out when he can, he is answerable at law for it. His pursuer, however, must not take the matter into his own hands and attempt to force his way past.”[216]
“It is,” I said, “fortunate, however, that these laws of the road are not inflexible like those of the Medes and Persians of antique days, but may on occasions be departed from.”[217]
“Yes; if there is no other carriage in the way, or if the road is broad enough, one may go on whatever part he fancies:[218] and in the crowded streets of a city situations and circumstances may frequently arise, where a deviation will not only be justifiable, but absolutely necessary.[219] And, of course, one may pass on the left side of a road, or across it, in order to stop on that side;[220] and conveyances stationary may be on either side.”[221]
“I believe that if there was sufficient room for a defendant to pass without inconvenience, it will not assist him when sued to say that the plaintiff was on the wrong side.[222] Mr. Angell tells us that if, a man, not on his own side, suddenly meets another and an injury results, he who is voluntarily in the wrong must answer for all damages, unless the other individual could have avoided the accident.[223] And the fact that the one on the wrong side is not able to turn out will not avail him as a defence.”[224]
“Of course not. The injured one has not only to show that the injurer was on the wrong side, but also that he himself exercised ordinary precaution to avoid collision.[225] If my share of the road is trenched upon I cannot recklessly run into the trespasser, and then turn round and sue for injury arising from my devil-may-care conduct. I may, of course, try to pass, if passing is reasonably prudent; if not, I ought to delay and seek redress at law, if damage ensue from my detention.[226] If a wagon comes along so heavily laden that I cannot pass it, the driver should stop at a convenient place to let me go by.[227] A man on foot, or on horseback, or in a light trap, cannot insist upon a teamster with a heavy load giving up part of the beaten track, if there be sufficient room to pass without his doing so.”[228]
“I believe,” I said, “that in winter when the proper road is covered with snow, and the beaten track is at the side, persons meeting on it must turn to the right.”[229]
“If a collision does take place,” said Smith, who talked as if he had inwardly digested all the reports ever published, “through a defendant’s fault, the plaintiff may recover against him damages commensurate with the whole of the injury sustained.[230] And, by-the-by, I noticed the other day, that the laws of the road do not apply to buildings which are traversing the highway.”[231]
“I should think not,” I replied.
A pause for a few minutes took place. Better far for me if it had never been broken on that day. But it was ordained otherwise.
“Well,” said Mr. Smith at length, “we have had a very pleasant drive together, and a very interesting conversation. I have enjoyed myself very much, for it is not very often that one can meet on the top of a coach, in this Ultima Thule of civilization, with a man who can discourse so learnedly on the law of carriers as you have done. But I regret to say that I must leave you at this little tavern, where the stage stops for dinner.”
“I share your regret fully, and I, too, have thoroughly enjoyed myself, and even my bruised toe has forgotten to twinge and throb during our converse.”
“By the way,” added Smith, “I find I have forgotten, or lost, my purse; could you kindly lend me a V., for I have my fare to pay.”
“Oh, certainly,” I replied, with apparent pleasure, but with inward heaviness, for alas
I could plead, expound and argue,
Fire with wit, with wisdom glow;
But one word for ever failed me,
Source of all my pain and woe;
Luckless man! I could not say it,
Could not—dare not—answer: No!
The transfer of the Five was speedily made, and at that moment the driver reined in his old horses and drew up at the door of a country inn. Quickly my debtor jumped off the coach; with his bag swinging in his hand, a nod to me and a low salaam to the ladies, he was walking away, when the driver called after him:—
“I say, mister, where’s that ere fare?”
“Ah! that’s a trifle that quite escaped my memory,” responded my quondam comrade. “Never mind, however, you will have a lien upon my trunk in the meantime.”[232]
“Where’s your box?” queried Jehu.
“Oh! that’s a question more easily asked than answered. It is where many a more valuable thing is, in nubibus, or in partibus infidelium. However, it matters little, because you could not detain me for the paltry fare, nor the clothes that I have on, nor even this bag that I have in my manual possession.[233] So by-by to you.”
And away he went, leaving coachee pouring forth his vials of wrath in epithets and expletives strong, if not polite.
“Alas,” thought I to myself, “it is such sharp and improper conduct that makes men wish, like Shakespeare’s Dick, ‘to kill all the lawyers;’ makes them abuse those who are (or should be) the counsellors, secretaries, interpreters, and servants of Justice—the lady and queen of all moral virtues—and apply to the members of our profession the language of Congreve of old: ‘There’s many a cranny and leak unstopped in your conscience. If so be one had a pump in your bosom, we should discover a foul hold. They say a witch will sail in a sieve, but the devil could not venture aboard your conscience.’ But I can flatter myself that an honest lawyer, like myself, ‘is the life-guard of people’s fortunes; the best collateral security for their estate; a trusty pilot to steer one through the dangerous and, oftentimes, inevitable ocean of contention; a true priest of justice, that neither sacrifices to fraud or covetousness; and one who can make people honest that are sermon proof.’ He is one who can
Make the cunning artless, tame the rude,
Subdue the haughty, shake the undaunted soul;
Yea, put a bridle in the lion’s mouth,
And lead him forth as a domestic cur.”