FOOTNOTES:
[234] Chitty on Carriers, 253; Story on Bailments, § 597.
[235] Ker v. Mountain, 1 Esp. 27.
[236] Chitty on Carriers, 252.
[237] See Mr. Dowler’s remarks in Pickwick.
[238] Brien v. Bennett, 8 C. & P. 724; Lygo v. Newbold, 9 Ex. 302.
[239] Webb v. Page, 6 M. & G. 204; Walker v. Jackson, 10 M. & W. 168; Philleo v. Sandford, 17 Texas, 227.
[240] Clark v. Gray, 4 Esp. 177; Lovett v. Hobbs, 2 Shower, 127; Hutton v. Bolton, 1 H. Bla. 299 n.; Dwight v. Brewster, 1 Pickering (Mass.), 50; Jones v. Voorhees, 10 Ohio, 145.
[241] White v. Bolton, Peake, N. P. 113.
[242] Robinson v. Dunmore, 2 B. & P. 416.
[243] Commonwealth v. Power, 7 Met. 601; Jencks v. Coleman, 2 Sumner.
[244] Angell on Carriers, 262.
[245] Miles v. Cottle, 4 M. & P. 630; 6 Bing. 743; and on this point see chapter 8.
[246] Butter v. Basing, 2 C. & P. 614.
[247] Dwight v. Brewster, 1 Pick. (Mass.), 50.
[248] Robinson v. Dunmore, 2 B. & P. 419; Brooke v. Pickwick, 4 Bing. 218.
[249] Tower v. Utica & Sch. Rw., 7 Hill, 47.
[250] Doctor & Stud., Dial. 2d, p. 224.
[251] Gautret v. Egerton, L. R. 2 C. P. 371; State v. Seawell, 3 Hawks, 193.
[252] Jaquish v. Ithaca, 36 Wis. 108; Ward v. Jefferson, 24 Wis. 342.
[253] Ibid.
CHAPTER VII.
STATIONS AND STARTING.
Meditations on Crossings.—Bell or Whistle.—People on Track.—Access to Stations.—Slippery Ice.—Checks on Trunks.—Notice of Arrivals and Departures.—Trains late as usual.—Must keep Time.—Damages, Damages.—Proof.—Ill fared Welfare.—Waiting-rooms not Smoke-houses.—Charge of the Iron Horse.—Tripped up.
In course of time I had to go off on business, and, notwithstanding the unhappy demise of my wife’s step-mother’s brother’s wife’s mother’s aunt, I resolved to patronize the cars, and having long before settled the insurance question to my own satisfaction, I purchased both a railway and an accident ticket, and as the proper hour for the departure of my train approached, started bag in hand, being minded to go afoot to the station. “As I walked by myself, I talked to myself and myself replied to me, and the questions myself then put to myself with the answers, I give thee,” my would-be-wise reader.
Coming upon the railroad where it ran close to a house which hid the line on one side completely from view, I was rather startled by a freight-train dashing past within a few feet of my nose, and I asked myself: “Should not a bell have been rung?” and I replied: “Yes, wherever a train crosses a highway there the bell should be rung or the whistle sounded;[254] and no engine should have gone at such a speed.” “Should not the company place a watchman at a crossing to warn pedestrians of the approach of trains?” the answer that came was, “I fancy not, for primâ facie, a foot-passenger crossing a railway is bound to look out for his own safety;[255] just as it is his duty to use due care and caution in crossing a street, so as not recklessly to get among the carriages.”[256] There is, it appears, no general duty devolving upon railway companies to place watchmen at such places, but it depends upon the particular circumstances of each individual case as to whether the omission of such a precaution amounts to negligence or not.[257] If, however, one is employed, his neglect of duty will make the company liable.[258]
But then this crossing, I thought, is peculiarly dangerous, the line being hid as it is! In such a case the mere occurrence of an accident to one crossing will be evidence of negligence.[259] If a railroad unnecessarily crosses a highway in such a manner and place that travellers can neither see nor hear an approaching train until too late to save themselves; or if a company erect a building so as to shut off the view, they will be liable for collisions, in the absence of negligence on the part of the injured ones.[260] I remember that once, on a certain foggy morning in the land of fogs, a man took the trouble to look up the line and to look down the line, but owing to the dimness of the light failed to see a train coming; the engine never whistled, the man was injured and the company was found guilty of negligence.[261] Where persons are in the habit of crossing a line at a particular place, though there is no right of way there, still the responsibility of taking reasonable precautions in their use of such place is thrown upon the company.[262]
The omission to give the signals required by statute, such as, ringing the bell or sounding the whistle, constitutes a primâ facie case of negligence; still, to make the company liable for damages, the injury must be the result of the want of the signal, and the onus of showing this will not be upon the company, but upon the plaintiff.[263]
The public has a right to presume that if the proper warnings are not given at a crossing, that the speed of the train will be reduced; if not, to prevent an injured one getting damage it must be proved that he was rash. The company will be liable if he kept a proper lookout, though he was incautious in going on the track.[264]
Every one attempting to cross a railroad should do it with his eyes open. He should listen for the signals, notice all the signs that may be put up as warnings, and look up and down the road.[265] If, however, he is driving across, it does not appear that he is bound to get out of his carriage, or even stop for the purpose of listening.[266] If, by the use of one’s optics, the train could have been perceived, it is presumed in case of a collision, that the man hurt did not look, or did not heed, and so under ordinary circumstances, the company will not be liable.[267] Contributory negligence on the part of the afflicted excuses the railroad, whether the proper signals have been given or not, or whether the company is guilty of any other negligence or not.[268]
When a carriage-way crossed a line on the level, and the gates on the down side of the line being open, young Wanless, with some other boys, entered on the railway at the time when a train on the up side was passing, intending to cross as soon as the train had passed; meanwhile another train, on the down side, which he could have seen if he had looked, knocked him down and injured him. The Court of Queen’s Bench and the House of Lords both held that the company were guilty of negligence;[269] and that having the gate open was an intimation to the public that the line was clear. However, in New York State it was decided that a similar breach of duty only gave a right to the penalty affixed thereto, and was not evidence of negligence:[270] and that one must keep a lookout, even though no danger signal is given.[271] On the other hand, other American cases hold that one has a right to expect a company to do its duty, and give the proper notices and warnings.[272]
When on the point of crossing a track about the time a train is due one should not bundle up his head, so as to impair the sense of hearing, and then go straight ahead without looking out for the cars. If a man does so and is made mince-meat of, he has only himself to blame, even though neither bell nor whistle sounded.[273] One must not even hold his hat on with his hand on a rainy, blowy, stormy, snowy night, if he is thereby prevented seeing an approaching train.[274]
A railway company is not bound to use the same amount of care towards strangers who voluntarily and wilfully go on their track as they owe towards their passengers. This, Mr. Brand found out after he had his legs cut off while walking on the track through the city.[275] If one is unlawfully on the track, or contributes to the injury by his own carelessness or negligence, yet if the injury could have been avoided by the company’s servants using ordinary care, the railway is liable for damages.[276] An engine driver, however, is not bound to slacken speed when he sees before him, on the track, one whom he may reasonably suppose can take care of himself, until he sees that otherwise the man, woman, or child will be run over; but it is his duty to check the train so soon as he spies a very young child, or apparently helpless person in the way; if he does not do so and a collision ensues, the company will be liable for the consequences.[277]
A company is bound so to lay their line at a crossing that no injury will be done by reason of the rails being above the level of the road.[278]
Near the station and forming one way of access thereto is a bridge, said to be in a dangerous state, and across this I saw several persons hurrying, but I preferred to go round by a longer way, for although it has been decided that a company is liable for the death of a passenger through the faulty construction of a bridge erected by them for the more convenient access to the station, when there is a safe one about one hundred yards further off which the unfortunate deceased might have used,[279] still I considered discretion the better part of valor and chose keeping sound bones in a whole skin to my wife enjoying plenty and prosperity out of my life insurances. Besides, I recollected that Mr. Justice Clesby had once said, that where a passenger having full knowledge of the fact, still preferred using a dangerous way and in consequence was injured, it would seem that such a foolish body would have no ground of complaint, on the principle of the old maxim volenti non fit injuria.[280] What risks men will run to save a few minutes or a few steps; verily well saith the poet,—
“Of all the creatures that fly in the air
Swim in the sea, or tread earth so fair,
From Paris and Rome to Peru and Japan,
The most foolish beast, as I think, is man.”
On entering the station-yard I found engines puffing and snorting, backing and switching on every side, and really it was at considerable danger of my journey being summarily put an end to ere well commenced, that I made my way to the platform. This rather annoyed me and ruffled the habitual serenity of my temper (and the serenity of the most serene would be tried by a locomotive spirting and squirting out a jet of steam at one’s nether garments), for it is the duty of railway companies to take all reasonable care to keep their premises in such a state that those whom they invite there (and they invite all who may desire to be carried to any place whither the line runs) will not be unduly exposed to danger.[281] But they need not go so far as to put a hand-rail upon a stairway for unsteady folks to steady themselves with, where the stair is protected on either side by walls; and they may put brass on the steps instead of lead, although it is more slippery.[282]
I had scarcely stepped on to the platform when one foot slipped from under me, and down with a whack I descended upon the back of my head; my carpet-bag, too, fell with a crash, telling of ruin to some valuable therein contained. Up rose I in wrath and found that a strip of ice had been the cause of my discomfiture, and I registered an oath on high that the company should answer to me in solid gold for the damages I had sustained; for I knew of one Shepherd, who having fallen on a slippery place, while he tramped up and down the platform waiting for a train, recovered a goodly sum from the company; and Martin, B., said, railway servants ought to be alert during cold weather to see whether there is ice upon the platform, and to remove it, or make it safe by sanding it, or otherwise, if it is there.[283]
On I strode in ire—for I saw some girls snickering at me—to where the baggage-master was checking the luggage.
“Check this,” I exclaimed.
“Take it into the car with you,” he replied.
“I won’t; you must check it; there’s a handle,” I returned.
“I won’t; handle be hanged; you must take it,” he retorted.
“All right,” I answered, inwardly resolving that as a check had been refused me when demanded, the company should pay me the penalty of eight dollars, as well as the costs of the action which I should bring against them for it, and that I would insist upon the conductor in charge of the train refunding me the fare that I had paid for my ticket.[2] I was sorry now that I had bought the ticket in advance, for under the circumstances they would have had no right to collect or receive from me any toll or fare.[284]
I was determined to teach railway companies their duties, and baggage-masters are far too fond of refusing to check small parcels or bags; and at way stations, in their wisdom, even decline sometimes to check large trunks, although the law of this Canada of ours says, “Checks shall be affixed by an agent or servant to every parcel of baggage having a handle, loop or fixture of any kind thereupon (though what may be included in the latter term goodness only knows), and a duplicate shall be given to the passenger delivering the same.”[285]
It was not many minutes before I found cause of action number three against the respectable railway company to whose tender mercies I was about to commit my precious self. The law directs that “the trains shall be started and run at regular hours to be fixed by public notice,”[286] but most locomotives—their drivers and conductors—treat that clause with a contempt truly philosophical. The train by which I desired to embark was overdue for half an hour, according to the time-table which hung mockingly on the wall, so I looked about me to see if there had been “put up on the outside of the station-house over the platform of the station in some conspicuous place, a written or printed notice signed by the station-master, stating to the best of his knowledge and belief the time when such over-due train might be expected to reach the station,” as it was the duty of the company to do. Of course, no such notice was visible, such enactments being too often deemed effete from the very day they appear on the statute book, so I still further comforted and consoled my wounded feelings by the thought that for this neglect or omission they were liable to an action at my suit, in which full costs might be recovered[287] (the latter was an object of importance just now).
I now retired into the waiting-room to ponder over the business that had thus unexpectedly turned up. I knew that few men were bold enough to fight a great railway company on any question, and especially one involving a small amount, and that as a result of this railways have been virtually exempt from the penalties attaching to many breaches of duty and of contract which they are daily committing; but I determined to sacrifice myself for the good of my fellows. I was eager, too, to see my name figuring in the reports.
I also now began to reflect that if the train was much later, I would miss my appointments, and then cause of action number four would accrue. For it is as clear as daylight that if a railway company publishes or authorizes the publication of a time-table, representing that a train will start at a particular hour for a particular place, or arrive at a particular hour, and through negligence no train is prepared or arrives, the company is responsible in damages to all persons who have acted upon the faith of the representation, and have been deceived and put to expense, and have sustained damage thereby;[288] but if they give proper notice they will not be liable for any necessary delay.[289] A company announced that their trains would be punctual as far as possible; though, they said, they did not undertake that they would run exactly according to the time-tables, and that they would not be liable for any loss or damage arising from unpunctuality; the court, however, held, that a delay of twenty-seven minutes en route between Liverpool and Leeds was evidence of negligence or want of reasonable efforts to be punctual.[290] A notice that a company will not be responsible for deviations from the time-tables, unless the detentions are caused by the wilful neglect of their employees, is practically invalid.[291] The company make a continuous representation whilst they continue to hold out printed or written papers as being their time-tables, and they thereby make a public profession and representation that they will exercise their vocation of common carriers, and dispatch passengers or goods, as the case may be, to certain specified places at or about the time named in such tables; and if they fail to do so they commit a breach of their duty as common carriers, and are guilty of a fraudulent representation, which may be the foundation of an action for deceit by any one who, relying on the representation, tenders himself or his goods for conveyance at the appointed time, and finds there is no train about to start.[292]
Though neither time-table nor advertisement is an actual warranty for the arrival and departure of trains at the time named, still companies are unquestionably liable for any want of punctuality which they could have avoided by the use of due care or skill; nor can they plead any excuse, the existence of which was known to them when the tables were published.[293] And when there has been a change of time, due care should be used in notifying the public.[294]
I also ran the risk of missing the connection at B.; but I remembered that once upon a time a tailor going down into the country to measure his customers, in consequence of the train not having reached a junction at the time advertised, missed his connection and had to spend the night at the junction and pay extra fare the next morning; he sued the company and recovered the amount of his hotel expenses and the extra fare, but not for damages sustained by not reaching his customers at the appointed time [but this rule seems to be almost equivalent to a denial of all beneficial redress in such cases.[295]] The chief baron in giving judgment, stated that as a rule, generally in actions upon contracts the plaintiff is entitled to recover whatever damage naturally results from the breach of the contract, but not damages for the disappointment of mind occasioned by the breach of contract.[296] When in consequence of the company’s negligence M. Le Blanche reached Leeds too late for the Scarborough train, and he took a special train whereby he reached Scarborough an hour earlier than if he had waited for the next regular train, the court considered that although he had no special business at S., yet still he was entitled to recover from the railroad authorities the cost of the special train. But a man should not take a special, hoping to have the expense recouped him, unless it is a reasonable thing to do under the circumstances.[297] In Manchester (England), a music teacher recovered against a railway company five shillings which he had had to pay for cab-hire, the train through delays having failed to make certain connections.[298] If a party bound to do a certain thing does not do so, the other party may do it for him as reasonably and nearly as may be, and charge him for the reasonable expenses incurred in doing so. A company cannot escape damages for its failure to carry a passenger with sufficient dispatch by the fact that the delay was the wilful act of the conductor in charge of the train.[299] It must clearly appear that the damages were sustained without any fault on the part of the traveller, and in spite of his utmost efforts to avoid them.[300]
The mere production of a ticket, however, is not sufficient evidence of a contract to carry a passenger to a certain place within a given time, as one Hurst discovered when he sued for various expenses and losses sustained through missing a certain train in consequence of delay in starting; the time-table must be produced to prove the contract.[301] And as I knew that to prove that the table was issued by authority I would have to show either that it was bought at one of the company’s stations, or at one of their recognized receiving offices, or that it was posted up in some office or place where the advertisements of the company were usually placed,[302] I started off on a tour of investigation to see if I could pick up the desired article, or evidence that would answer my purpose, keeping in mind how ill fared my friend, Mr. Welfare. He once innocently inquired of a railway porter when the train would be in, and being referred by the official to a time-table hanging upon the wall, he went to consult it; while doing so, down tumbled, through a hole in the roof, a heavy plank and a roll of zinc, and smote Mr. Welfare on the neck, doing him grievous bodily harm; glancing upwards, the poor stricken one beheld the legs of a man upon the roof. Yet for the damages done the company was held not liable, as for aught that my friend showed at the trial the man might have been the servant of a contractor employed to mend the roof, or the misfortune might have been the result of a pure accident.[303] So the sufferings of my friend served but to point a moral—Beware!—and to adorn a volume of reports.
But to return from this digression anent my friend, to the topic on which I was musing. Draper, C. J., in one case, held that a time-table could not be treated as a part of the contract, but amounted to a representation only; and that to recover damages one would have to show that he bought his ticket before the time specified for the train leaving, and not merely before the arrival of the train, for if that were after the time specified, the would-be passenger would know as well as the company that the time-table had been departed from.[304]
While I was thus deeply ruminating, an old friend appeared,—a Q. C., of high standing, at the bar of a neighboring city,—and we went outside to enjoy a chat and weed while waiting for the train. Seeing an elderly female turn up her nose as a whiff of smoke tickled her nostrils, as if it were in very deed a blast from the lower regions, as King James said it was, my friend remarked:—
“Did you see that decision of Dillon, C. J., where he held that a woman who found the waiting-room unfit for her occupation—tobacco and other impurities being offensive to her delicate nerves—and so attempted to enter the cars which had not as yet come up to the platform, and was injured by the giving way of the platform steps, was entitled to recover?”[305]
“No,” I replied.
“He ruled that it is the duty of railway passenger carriers to provide comfortable rooms for the accommodation of passengers while waiting at the stations, and to enforce such regulations in regard to smoking therein as to enable persons to occupy them in reasonable comfort.”
“A very good decision for the ladies and those who have to wait hour after hour in a dirty room for a train ages behind its time.”
“Still I think it is pushing the doctrine of the liability of companies rather far.”
“Yes,” I returned, “and rather in the teeth of the dictum of Mr. Justice Hannan, in Siner v. Great Western,[306] where he said he thought that juries took an exaggerated view of the duties of railway companies; that the companies have done so much for the comfort and convenience of travellers that it is now made the subject of complaint if the highest degree of luxurious care is not attained in all their arrangements.”
“His is a much more sensible view of the case,” said Smith, who held some railway shares, “and one more likely to produce dividends for unfortunate stock-holders. If people avail themselves of the benefits of railway travellers, they should make some allowances. Ah! look at our fair friend!”
She was at the far end of the platform, and an engine attached to a freight train seemed to be rushing straight at her; she turned and fled, with a scream, to avoid the charge of the iron horse, and in her hurry tripped over a barrow and fell prostrate. The career of the locomotive was stopped. It appeared that its antics had been caused by the negligent displacement of a switch. We raised the lady and found that although slightly damaged she was more frightened than hurt. We consoled her with the assurance that if she chose to sue the company she could make them pay for the elephantine gambols of the fiery steed which had so disturbed her equanimity.[307]
Seeing a man a short way off to whom I desired to speak, I was on the point of jumping down off the platform, when my Q. C. exclaimed:—
“Hold! be not rash! If you jump, instead of going down by the steps, and are hurt, you can never make the company pay for the plasters and the salves;[308] besides here’s the train.”
And so indeed it was at last. Up it thundered to the station amid screeching and bell-ringing: out rushed the passengers eager to reach the refreshment room. The crowd pushed my chum against a portable weighing-machine, and, catching his foot in it, he fell and injured himself. Seeing that he was not very seriously damaged I could not help crying out:—
“Hold! be not rash! I knew a case on all fours with yours, where the foot of a machine projected above the level of the platform six inches and was unfenced; there it had stood for years without doing any damage, and it was held that there was no evidence to go to a jury of any negligence, the machine being where it might have been seen, and the accident not being one which could have been reasonably anticipated.[309] An exactly similar case. Ho! ho! ho!”
“I wish the whole platform had given way with the weight of that mob, and then there would without doubt have been evidence of negligence. Besides I might have had the pleasure of seeing you break your leg;” testily replied the Q. C. And he added, and more correctly than an angry man usually speaks, “A company should not allow their platform to be overcrowded, and they ought to have adequate means for protecting their passengers in the event of an unusual influx of travellers.[310] They are bound to see that the number of porters at each station is adequate for the safety of passengers.”[311]
“Ah! my dear sir, one must be careful and walk circumspectly about a station. You know where a man fell, seriously hurting himself, on a staircase down which some forty thousand people had passed every month without an accident, the court held that there was no evidence of negligence on the part of the company to go to a jury, although the brass covering on the step had been worn smooth, and said that ‘the mere fact of a man having fallen and hurt himself is not sufficient to charge the company with negligence in the construction of their station; and the court is in an especial manner bound to see that the evidence submitted to the jury in order to establish negligence, is sufficient and proper to go to them.’”[312]