FOOTNOTES:
[180] Nicholls v. Gt. Western Rw., 27 U. C. Q. B. 393; Boggs v. Gt. Western Rw. Co., 23 U. C. C. P. 573; Ellis v. Gt. Western Rw. Co., L. R., 9 C. P. 551; Johnston v. Northern Rw. Co., 34 U. C. Q. B. 432; Penn. Rw. Co. v. Beale, 9 Can. L. J. (N. S.), 298.
[181] Stubley v. London and Northwestern Rw., L. R. 1 Ex. 16; questioning Bilbee v. London, B., & S. C. Rw. Co., 18 C. B. (N. S.), 584.
[182] Winckler v. Gt. Western Rw., 18 U. C. C. P. 261; Dascomb v. Buffalo & State Line R. R. Co., 27 Barb. 221; Mackey v. N. Y. & C. R. R. Co., 27 Barb. 528.
[183] Pittsburg, F. W., & C. Rw. v. Dunn, 56 Penn. St. 280; Balt. & Ohio R. R. v. Breinig, 25 Md. 378; Skelton v. L. & N. W. Rw., L. R., 2 C. P. 631; Johnston v. Northern Rw., 34 U. C. Q. B. 439; Penn. R. v. Ackerman, 74 Penn. St. 265.
[184] Havens v. Erie Rw., 41 N. Y. 296; Grippen v. N. Y. C., 40 N. Y. 34; Parker v. Adams, 12 Met. 415; Johnston v. Northern Rw., supra; Bellefontaine Rw. v. Hunter, 33 Ind. 335; Miller v. G. T. R., 25 C. P. (Ont.) 389.
[185] Galena & Ch. Rw. v. Loomis, 13 Ill. 548.
[186] Hart v. Erie Rw. Co., 3 Albany L. J. 312. See also Tabor v. Mo. Valley Rw., 46 Mo. 353; S. C., 2 Am. Rep. 270.
[187] Sneesby v. Lancashire & Y., etc., 1 Q. B. Div. 42.
[188] Tyson v. G. T. Rw., 20 U. C. Q. B. 256. See also, Ernst v. Hudson River Rw., 35 N. Y. 9.
[189] Winckler v. Gt. Western Rw., 18 U. C. C. P. 261; Nicholls v. Gt. Western Rw., 27 Q. B. U. C. 382.
[190] Stubley v. London & N. W. Rw., L. R., 1 Ex. 13.
[191] Thorogood v. Bryan, 8 C. B. 115, cited Id. 131; Rigby v. Hewitt, 5 Ex. 240; Greenland v. Chaplin, Ib. 247; Armstrong v. Lancashire & Y. Rw., L. R., 10 Ex. 47.
[192] Maule, J., in Thorogood v. Bryan, 8 C. B. 131.
[193] Note to Ashby v. White, 1 Smith’s Leading Cases (6th ed.), 356.
[194] Bennett v. N. Y., etc., 36 N. J. 225.
[195] Soule v. G. T. R., 21 C. P. (Ont.), 308.
[196] Stott v. G. T. R., 24 U. C. C. P. (Ont.), 347; Limpus v. London Omnibus Co., 1 H. & C. 526.
[197] Burton v. Phila., etc., R. R. Co., 4 Harring. (Del.), 252.
[198] Pate v. Henry, 5 Stew. & Port. 101.
[199] Miles v. James, 1 McCord, 157.
[200] Pain v. Patrick, 3 Mod. 289.
[201] Willoughby v. Horridge, 12 C. B. 751; Addison on Torts, 493.
[202] Cohen v. Hume, 1 McCord, 439; Fisher v. Clisbee, 12 Ill. 344.
[203] White v. Winnisimmet Co., 7 Cush. 155.
[204] Wilson v. Hamilton, 4 Ohio St. 722.
[205] Fisher v. Clisbee, supra.
[206] Powell v. Mills, 37 Miss. 691.
[207] Pate v. Henry, 5 Stew. & P. 101.
[208] Pluckwell v. Wilson, 5 C. & P. 375.
[209] Chaplin v. Hawes, 3 C. & P. 554.
[210] Wayde v. Carr, 2 Dowl. & Ry. 255.
[211] Kennard v. Benton, 25 Maine, 39; and in Ontario, by Con. St. U. C. ch. 56, in meeting, conveyances must turn to right, and so when one is overtaken by another.
[212] Story on Bail. § 599.
[213] Dudley v. Bolles, 24 Wend. 465.
[214] Washburn v. Tracy, 2 D. Chip. 128.
[215] Beach v. Parmeter, 23 Penn. St. 196; Grier v. Sampson, 27 Pa. 183.
[216] Angell on Highways, § 340.
[217] Wayde v. Carr, 2 Dow. & Ry. 255.
[218] Aston v. Heaven, 2 Esp. 533; Palmer v. Barker, 11 Me. 338.; Foster v. Goddard, 40 Me. 64.
[219] Turley v. Thomas, 8 C. & P. 103.
[220] Angell on Highways, § 336.
[221] Johnson v. Small, 5 B. Mon. (Ken.), 25.
[222] Clay v. Wood, 5 Esp. 44; Parker v. Adams, 12 Metc. 415; Kennard v. Burton, 11 Shepley (Me.), 39.
[223] Angell, § 337.
[224] Brooks v. Hart, 14 N. H. 307.
[225] Parker v. Adams, supra.
[226] Brooks v. Hart, 14 N. H. 307.
[227] Kennard v. Burton, 25 Me. 39.
[228] Grier v. Sampson, 27 Penn. St. 183.
[229] Jaquith v. Richardson, 8 Met. 213; Smith v. Dygert, 12 Barb. 613.
[230] Gilberton v. Richardson, 5 C. B. 502.
[231] Graves v. Shattuck, 35 N. H. 257.
[232] Wolf v. Summers, 2 Camp. 631.
[233] Sunbolf v. Alford, 3 M. & W. 248.
CHAPTER VI.
DINING, RAINING, LOSING, AND ENDING.
Must wait at Stopping-places.—Place booked taken at any Time.—Falling in ascending.—Drenched with Rain.—Coachmen are Common Carriers, and liable as such.—Loss of Money.—Loss of Luggage.—Dangerous Short Cut.—Bridges.—Safe Arrival.
The driver, annoyed at the loss of his fare, said he would drive ahead at once and not wait, as he usually did at this place, for his passengers to take refreshments, but as my wife was hungry and the old maids thirsty, I insisted upon his remaining; for a carrier has no right to deviate from established usages to gratify his own whims and fancies.[234] While we were partaking of a cold collation, portions of which, doubtless, had done duty on several former occasions, a gentleman arrived at the inn, and from his conversation with the driver I quickly perceived that he had paid his fare for the whole way from town to our journey’s end, and that he now intended to take his seat, as he clearly had a right to do.[235] He, too, was booked for an inside place, and protested strongly because sufficient room had not been left for him, saying that as more than the legal number were already on board, he would not get on but would sue the proprietor for all expenses he might be put to in performing the remainder of his journey by another conveyance.[236]
“I took my place,” he exclaimed with emphasis, “and now you are going to try to squeeze six people into an infernal box that only holds five. I’ll take a post-chaise and bring an action for all the expenses incurred. I’ve paid my fare. It won’t do; I told the clerk when I took my place that it would not do. I know these things have been done. I know they are done every day; but I never was done, and I never will be. Those who know me best know it; crush me.”[237]
The son of Nimshi tried to smooth down matters, but in vain; and the irascible gent went off in high dudgeon; whereat I rejoiced.
Just as we were starting, an old woman approached, and after some chaffering agreed with the driver as to the sum for which he would carry her to the next village, and began to mount. Before she was up the horses started, and she was thrown to the ground and injured so much that she could not come with us. I endeavored to apply some balm by informing her that she had better sue the owner of the stage; for, she, being a passenger as soon as the contract was made, he was liable to her for the negligence of his man.[238]
We had not gone far, after our refreshments, before the sky grew overcast, the wind arose, heavy clouds began to send across the sky, distant mutterings of thunder grew more and more audible, rolling, rumbling, rattling, nearer and nearer, the heavens were wrapt in gloom, through which, ever and anon, the lightning flashed vividly. Quickly the thunderstorm was upon us, the rain descended first in large heavy drops, then in a perfect deluge; the sky seemed on fire with electric flashes, darting hither and thither like fiery, flying serpents. In vain the coachee whipped up his wearied horses and made their very bones to rattle, striving to gain shelter from the pitiless storm. Before protection could be gained we were all drenched to the epidermis, even those within did not escape, for the old stage leaked like a sieve and let in the flood at every part. (My wife declared afterwards that she had read that in the days of Henry II., of France, there were three, and only three, coaches in existence, one belonging to Catherine de Medicis, another to the fair, but frail, Diana of Poictiers, and the third to René de Laval, a noble seigneur, and that she verily believed that this was the one owned by, the fat old René, so weak, so frail, so rickety, was the old antediluvian monster; in fact, she remarked, there was nothing strong about the entire concern except the smell!)
But, after all, it was only a thunderstorm, and ere very long its fury was overpassed, the sun emerged from behind the murky clouds, and we all steamed away beneath its fiery rays like small portable steam-engines. Far worse, however, than being thoroughly damped ourselves, the heavy down-pour had penetrated our trunks and bags, playing the mischief with the things therein, for the carrier had not provided tarpaulins, or cart clothes and such necessary coverings to protect the baggage from the rain, as he was bound to do.[239] The thoughts of the damages which I might recover, alone kept me from pouring forth my ire upon the coachman’s devoted head.
Of course, proprietors of stage-coaches,[240] or mail-coaches,[241] who hold themselves out as carriers of goods, as well as of passengers, are liable as common carriers, and responsible at common law for all damage and loss to goods during the carriage from what cause soever arising, save only the act of God; and this liability extends to the luggage of passengers, as well as to the goods of strangers, although no specific charge be made for the luggage.[242] In England (by the Railway Clauses Act) railways, stage-coach proprietors, and other common carriers of passengers, their baggage and freight, are put upon precisely the same ground, both as to liability and as to any protection, privilege or exemption; and the same rule obtains in the great republic, except, perhaps, that inasmuch as transportation by rail is infinitely more perilous, a proportionate degree of watchfulness is demanded of carriers thereby. Care and diligence are relative terms, and the degree of care and watchfulness is to be increased in proportion to the hazard of the business.[243]
The thorough damping which he had received seemed to have had a mollifying effect upon our knight of the reins, and when I ventured to address him on the subject of his master’s liability for loss or damage to luggage, I found him quite thawed out, in fact, communicative.
“Wal,” said he, “I knows summat about that; but I rather guess you’d find yourself mistook if you thought him liable for all losses, and put a lot of money in your trunk, and didn’t tell on it, and had it lost.”
“Why,” queried I, “what about that?”
“Not much, only this: a chap one time thought so as how he’d come a sharp dodge on a coachman, so he just put $11,250 in his old trunk and said nothing about it; and when they got to their journey’s end the box was nowheres; the man tried to make the owner of the stage pay, but the judge decided he could not.”
“Who told you all that?”
“Wal, stranger, I heerd it in rather a roundabout way; my master told me, another man told him, and an angel told the other man.”[244]
“Ah, indeed!” I exclaimed, “that is undoubted authority.”
“Another time there was a long fellow put a £50 note in his bag among his old duds. In getting on the stage he gave his bag to the driver, who lost it; he sued the master to court, but the jury only paid him for his old clothes.”[245]
“There must have been some stage-coachman on that jury,” I said.
“Like enough; there’s a deal of them scattered around every civilized country.”
“I suppose you know,” I added, “that if you were to carry parcels for your own particular profit, your master would not be liable for the loss of them,[246] unless, indeed, he paid you less wages, because of the opportunity thus afforded you of making small sums.”[247]
“I guess there’s no chance of my makin’ a fortun’, along this ere road that ere way. Folks think I ought to carry their traps for nothing. Look ye here, mister, how would it be ’sposing a man took his portmantee with him, and kept his own eye on til it, and it was lost after all.”
“Oh, it’s clear the owner of the coach would be liable.[248] But if a gentleman keep, for instance, his overcoat wholly in his own custody and possession, and does not actually deliver it to the carrier, the latter cannot reasonably be held liable for the loss[249] if it disappears.”
(P.S. and N.B. Any person or persons desirous of becoming thoroughly posted upon the all important question of the liability of carriers for the loss of baggage, will find it to their advantage to consult chapter fifteen of this my book.)
“I say, mister, had I better take a short cut over that ere bridge, which is so rotten that I calkerlate it will go down mighty soon with a tremendous whack into the water below, or go away round a couple of miles to the stone bridge?” queried the driver.
“Well,” I replied, “I think you had better go round, for the law saith, if a common carrier—which you decidedly are in every sense of the word—goes by ways that be dangerous, or drive by night, or in other inconvenient times, or if he overcharge a horse, whereby he falleth into water or otherwise, so that the stuff is hurt or impaired, then he shall be charged for his misdemeanor.”[250]
“But why does not the corporation repair the bridge?” I added.
“Oh, they don’t own it; old Squire Squaretoes built it and owns it; but he lets folks cross it if they choose,” replied the man.
“Then it is clear we would have no one to sue if any accident happened through its defective state.”[251]
I trust that my readers (if I have any) will understand that a town is not liable for injuries caused by a bridge being out of repair, if it has become so, suddenly and unexpectedly, by reason of a freshet, and sufficient time has not elapsed to enable the authorities to repair it, or to guard travellers against the danger;[252] but if the chairman of the board of supervisors has had notice of the defect, and no proper precautions are taken to guard against accidents, the town will be held liable for negligence.[253]
Quickly now we drove along the bank of a little babbling, bubbling river, which “like a silver thread with sunsets strung upon it thick like pearls” wound in and out, and round about, doubling the distance we had to travel; but I was quite content and sought not to descend from my high perch, for the breeze was
“‘Sweet as Sabæan odors from the shores
Of Araby the blest;’”
and the woods near by had many verdurous glooms and winding mossy ways, to charm the eye, and I had ever loved to gaze upon
“groups of lovely elm-trees bending
Languidly their leaf-crowned heads,
Like youthful maids, when sleep descending,
Warns them to their silken beds.”
On and on we clattered along the rough and stony road, rattling and jolting, till a loud and sharp “Toot-toot-toot,” with a long clear flourish “that warbled away in an acoustic ringlet” from the driver’s horn, announced the fact that that day’s work was done; that our journey was complete, and we were safe in the little village of Ayr.
As our journey beyond this point was upon the trackless deep, I will here say nothing about it, save that we were while on board the steamboats neither blown up nor drowned.