THE LAW OF THE ROAD.
THE
LAW OF THE ROAD;
OR,
WRONGS AND RIGHTS OF A TRAVELLER.
BY
R. VASHON ROGERS, Jr.
A BARRISTER AT LAW OF OSGOODE HALL.
SAN FRANCISCO:
SUMNER WHITNEY AND COMPANY.
NEW YORK: HURD AND HOUGHTON.
Cambridge: The Riverside Press.
Copyright, 1876,
By SUMNER WHITNEY & CO.
RIVERSIDE, CAMBRIDGE:
STEREOTYPED AND PRINTED BY
H. O. HOUGHTON AND COMPANY.
PREFACE
TO THE
CANADIAN EDITION.
This little work does not aspire to compete with the learned productions of Redfield, Chitty, or Story, but merely to supply a want, felt by many to exist in this age of perpetual motion, of a plain and brief summary of the rights and liabilities of carriers and passengers by land and by water.
An attempt is made in the following pages to combine instruction with entertainment, information with amusement, and to impart knowledge while beguiling a few hours in a railway carriage, or on a steamboat. Whilst it is hoped that the general public will peruse with interest the text, containing elegant extracts from ponderous legal tomes—gems from the rich mines of legal lore—and where in many cases the law is laid down in the very words of learned judges of England, Canada, and the United States; the notes—a cloud of authorities—the index and the list of cases are inserted for the special delectation of the professional reader.
Though written in Ontario, the book will be found applicable to all parts of the Dominion, as well as to the United States and England.
The author, even if the style is deemed novel, does not seek the praise of originality for the substance of the following chapters, as the greater portion of the text, and well nigh all the notes, have been taken from the works of others, to whom all due thanks are now rendered.
How far the book is likely to be of use to the seeker after knowledge, or of assistance to those desiring to kill time, is for others to determine. If mistakes be discovered it is hoped that the reader—professional or otherwise—will bear with them, “for if the work be found of sufficient merit to require another edition, they will probably be corrected, and if no such demand is made the book has received as much labor as it deserves.”
The author is very “’umble, coming of an ’umble family,” like the celebrated Uriah—not the Hittite, but he of the Heap tribe—and he will be quite content and satisfied if every reader, after having perused this work, says of him as Lord Thurlow said of Mansfield: “A surprising man; ninety-nine times out of a hundred he is right in his opinions and decisions, and when once in a hundred times he is wrong, ninety-nine men out of a hundred would not discover it.”
PREFACE
TO THE
AMERICAN EDITION.
In this present year of grace the British Lion is gently purring in the centennial eyry of the American Eagle; thither also, the Canadian Beaver, with a maple-leaf, the emblem of sweetness, in his mouth, has wended its way: a striking contrast to the deeds of one hundred years agone, when the followers of the quadrupeds were striving, teeth and claw, to send the lovers of the biped to that bourne from which no traveller returns.
The time seems therefore opportune for a member of the Beaver family to present to the worshippers of the mighty Eagle an edition of a little book touching upon the wrongs and the rights of those of the republic, and from distant lands, who travel upon the 74,000 miles traversed by the iron horse, or the hundreds of thousands of leagues frequented by nags of more mortal frame, on the American continent.
The following is a Canadian book, revised, enlarged, abridged (the watery element being omitted),[1] and rendered a more suitable place to the palate of Uncle Sam by the admixture of many more of the wise sayings of the men learned in the law of the United States. Originally published anonymously, the author has been induced, by the kind notices of his little book that have appeared, to acknowledge his bantling; and he would seize this opportunity of rendering thanks to those critics who, when writing of the first edition of his work, dipped their pens into a solution of sugar and honey and not into an extract of wormwood, vinegar and gall.
R. V. R. Jr.
Kingston, Ontario,
June, 1876.
WRONGS AND RIGHTS OF A TRAVELLER.
CHAPTER I.
DRIVING.
New Year’s Day.—Collision with Old Bolus.—Must I pay for my Servant’s Deeds.—Deaf Man run over.—Effects of an Avalanche.—Housemaid injured by Coachman.—Wives, Snakes or Eels.—Icy Walks.—Falling Snow.—Board Walks.—Driver and driven.—Right Side or Wrong.—Look out.—Walkers.—Sunday Driving and Visiting.—Church-going.—Sunday Laws.
My life, so far as the readers of this sketch are concerned, may be taken to have commenced on the New Year’s morning after I had married a wife, and set up a trap with the necessary accompaniments of a horse or two and a man.
It was my intention, pursuant to the time-honored custom, to go out in the afternoon with a friend to call upon my extensive circle of lady acquaintances. At 10 A. M. Mrs. Lawyer came into my library frantic and breathless; the palpitations of her heart having somewhat subsided, and her heaving bosom sunk to rest, she exclaimed:—
“O Eldon, that horrid John must be drunk! He took out the horse and sleigh this morning, and when driving down Main Street, he ran into Dr. Bolus’s cutter and knocked it all to pieces.”
“Ah, my dear Elizabeth, calm your troubled mind;” I coolly replied, “John, without my knowledge, and wrongfully, took my horse and sleigh for some purpose or other of his own, and ran into old Bolus’s turn-out, you say: well, the law is perfectly clear that I am not responsible for the injury, as I did not intrust my servant with the sleigh.[2] I may tell you for your edification that the general rule is that a master is not liable for the tortious act of his servant, unless that act be done by an authority, either express or implied, given him for that purpose by the master;[3] or as Mr. Baron Parke puts it, if a servant is going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”[4]
“Oh, but dear Don, I forgot to tell you that I sent him to the confectioner’s for some cakes; but I told him to drive along West Street.”
“Confound it, that’s a different matter. The Doctor will rush off to friend Erskine, and I will have to pony up for the damage; because, as that rascal John was driving on his master’s business, it matters not that he disobeyed his express orders in going out of his way, or made a detour to please himself.”[5]
“Yes, but Eldon dear,” continued my wife, “it was not on his master’s business, it was on mine.”
“Stupid, what difference does that make?” replied I, impatiently; and then, seeing that my wife did not like the adjective, I added more feelingly, but rather vaguely, “Don’t you see, I’m his master, you are mine, and so must be his also.”
“Heigh-ho!” sighed the wife of my bosom. “But I have not told you all. After the collision the horse ran against an old man who was walking along the street, knocked him down, and hurt him: but, of course, he had no right to be on the road, when there was a good sidewalk for him.”
“Of course he had a right to be on the road, just as much right there as the horse and sleigh had, even though he were sick and infirm; and it was John’s business to take care where he was going!”[6]
“Yet John says he told the man to get out of the way, and he wouldn’t do it;” pleaded my wife.
“That does not matter.[7] I hope no more damage was done?” I queried.
“Yes; the horse shied and upset the sleigh; and John says that all his—I mean John’s—ribs are broken, and that he is kilt entirely; and he swears that he’ll make you pay for it—that he’ll sue you.”
“Let him sue away and be hanged; he’ll get nothing for his pains but the pleasure of spending his earnings; he is my servant and has to run the risk of being hurt in my employment.”[8]
“But then, Eliza Jane, the housemaid, was with him, was thrown out too, and had all the skin taken off her face; and she says she’ll sue too.”
“Oh, I’m sorry for that; I like her, and then she was so pretty.”
“Eldon! how dare you say so—to your wife, too!”
“I—I—only meant that I would have to pay for the damage to her, and that if I did not do it willingly, any jury would be persuaded by her pretty face to give a heavy sum against me for the injury done to her by my servant.[9] Well, ’tis a pretty how-do-ye-do for a New Year’s gift. I’ll go down and see the wretch.”
Off I went, glad to get out of Elizabeth’s sight. She had grown a little jealous because I had shown a few trifling civilities to pretty Eliza Jane,—very trifling they were, I assure you; besides I wanted to vent my rage on the man John. In a very short time some words and phrases were used in the yard to which, doubtless, Moses would have objected, if he had the first table of stone in his hand. My ire, however, cooled down in time when I found that the man was “all serene,” and that all the trouble had been caused by the horse having taken fright at the fall of a lot of snow and ice off a house-top—a circumstance over which, of course, I had not the slightest control; and therefore I was not liable to Dr. Bolus, the old man, nor to pretty Eliza Jane.[10] But to make matters all straight I gave my man a couple of dollars, and meeting E. J. on the back-stairs as I went in I chucked her under her dimpled chin, and told her that crying would make her pretty eyes look red and swollen; and then retiring to my library read up all the cases bearing on the subject, beginning with the old case of Michael v. Alistree,[11] where the defendants “in Lincoln’s Inn Fields, a place where people are always going to and fro about their business, brought a coach with two ungovernable horses, et ex improvide, incaute et absque consideratione inaptitudinis loci, there drove them, etc., and the horses, because of their ferocity, being not to be managed, ran into the plaintiff, and hurt and grievously wounded him,” and the plaintiff got damages as well as damaged.
At the appointed hour my friend and young brother-in-the-law, Tom Jones, arrived. As he sank into one of the softest of our drawing-room chairs, and gazed around, he exclaimed:—
“By Jove, Eldon, you look so snug and cosy here that I am half inclined to follow suit, quit our bachelor’s hall, marry a nice little girl I wot of, and settle down.”
“Do so at once,” said my wife.
“Ah! I cannot forget the words of that good old judge, Sir John Moore,” he replied with a sigh.
“Oh, you are as bad as Eldon, always quoting some fusty old judge. But what did he say?” queried my wife.
“He said that he would compare the multitude of women who are to be chosen for wives unto a bag full of snakes, having among them a single eel. Now, if a man should put his hand into this bag, he might chance to light on the eel, but it is one hundred to one he would be stung by a snake,” returned Jones.
“The horrid old wretch. I am sure I was neither a snake nor an eel: was I, Eldon? I hate both.”
“Oh, no, my dear,” I replied. “But Tom, that surely is only an obiter dictum, not a decision of that worthy judge.”
“Of course,” replied Jones; “but all the dicta of judges are entitled to weight.” Tom had just been called to the bar.
“It is time that you two horrid creatures left here,” said Mrs. L.
“Well, suppose we start. Mind dear, to tell the man to be sure to meet us, two hours from now, at Mrs. Smith’s.”
“Is your life insured against accidents, Mr. Jones?” asked my wife. “You are sure to be run away with and upset.”
“Only against railway accidents,” he said.
“That’s stupid,” I remarked, “for it is well settled that hardly seven per cent. of accidental claims arise from accidents in travelling by rail or water, while those arising from horse or carriage injuries exceed in number those from all other causes combined.”
“A pleasant idea wherewith to start for an afternoon’s drive,” quoth Tom.
Off we went, followed by the best wishes of my loving and lovely spouse. Scarce had our feet touched the sidewalk when, with the exclamation, “Get out you rascallion!” Jones executed a pas seul, and then lay sprawling on the ground; and the small boy—whose sled as it slid swiftly down the board walk my friend had vainly endeavored to avoid—glided merrily on. As I whisked the snow off, Jones in wrathful accents consigned the juvenile to a place beyond the possible limits of frost, and exclaimed:—
“I’ll sue the city for allowing the road to be in such a beastly state. Corporations are bound to keep the street in a proper condition, so that the lives and bones of passers-by will not be endangered.”
“True,” I replied, “but the accident was not wholly caused by the slipperiness of the pavement; the unlawful and careless act of the boy in coasting had something to do with your overthrow; and in the exactly similar case of Mrs. Shepherd it was decided that the city was not liable.”[12]
“I tell you all towns and cities must keep their highways and streets in repair, so that they are without obstructions or structural defects which may endanger the safety of travellers, and are sufficiently level and smooth, and guarded by railings when necessary, to enable people, by the exercise of ordinary care, to move about with safety and convenience.”[13]
“You repeated that sentence very well and with great emphasis. It is quite correct in a general way that highways, streets and sidewalks should at all times be safe and convenient, but then regard must be had to the locality and intended uses.[14] Towns are liable only for injuries caused by defects and obstructions for which they might be indicted.[15] They do not insure the safety of all using sidewalks in the depths of our northern winters;[16] and it has been expressly decided that the mere existence of a little ice on the walk is no evidence of actionable negligence:[17] the slipperiness of the ice, if the walk is properly constructed and free from accumulations of snow, will not give those who fall a right to sue a city with success.[18] One must go gingerly and with due care on such occasions.”[19]
“All very fine,” said Jones, “but when my friend Clapp, in walking along the streets of the city of Providence, at night, fell on some ice and broke his thigh, he recovered damages.”
“Yes, I remember; but then there was a ridge of ice and snow, hard trodden, in the centre of the sidewalk, which was considered such an obstacle as the city should have removed.[20] And”—
Ere I had completed my sentence the hour of my doom had struck, and I was as white as ever miller was; an avalanche of snow slid off a roof and thundered down on my devoted head. Jones with a smirk asked me if I was going to sue for damages. Sadly, as I twisted my head slowly round and nodded first to right and then to left, to see if the vertebræ were all in working order, I replied:—
“Ah, no! I cannot do so with success.[21] It’s a case of damnum absque injuria.”
“Ho! ho!” laughed my companion; “strong language; but no wonder.”
“If the owner of the house had left the ice and snow there for an unusual and unreasonable time after he knew of its presence and might have removed it, he probably would have been liable to me,[22] or, if that old awning had fallen on me,[23] or if that lamp hanging over the Sol’s Arms’ door had lighted on my crown, producing an extra bump, for the edification of Fowler and Wells and the savants of that ilk, I might have got something in the first case out of the city; in the other from the landlord.[24] Or if one of those barrels had rolled out of that warehouse, and, thumping against your legs, had brought you down, you might have sued the merchant.”[25]
“Look at that poor old woman; she will come to grief most assuredly.”
Before us toddled an aged granny, assisting her septuagenarian extremities with an antique looking umbrella, of no color known to this life. It was of a “flabby habit of waist, and seemed to be in need of stays, looking as if it had served the old dame for long years as a cupboard at home, as a carpet-bag abroad.”
“So feeble a person should not be out in such slippery weather unattended;[26] people should exercise common prudence. One who has poor sight should take greater care in walking the streets than one in full enjoyment of her faculties.”[27]
“I fancy the least obstacle or hole would upset her,” said Tom.
“And if she did stumble over a small impediment she could not sue the city for damages. So the court held where a man fell over the hinge of a trap-door projecting a couple of inches above the sidewalk in a village.[28] But the degree of repair in which the walks must be kept depends considerably upon the locality; one may reasonably expect better pavements in a city than in a village; and so in Boston where an iron box four inches square, set in a sidewalk by a gas company, had a rim projecting an inch above the level, the city was held responsible for injuries caused by it.”[29]
“If she did meet with an accident and was held entitled to damage, what would she get in hard cash?” asked Jones.
“’Tis impossible to say. It would depend upon so many things. In one case where an old man of seventy, who was very feeble, fell at night into an opening for a drain in the sidewalk, which was covered with boards laid at right angles with the others and projecting some two inches, over which he stumbled, the jury gave $4,000 damages; but the court held that excessive, as the old man was insolvent and incapable of much labor.”[30]
“That was a large sum for injuries.”
“But the old fellow died. We go in here,” I added.
“You may, I will not,” replied Jones, as he leant against the railing of a bridge over a little stream.
“Well, do not stand there; if the board gives way and lets you down, you will have no remedy against the city; for it is not bound to keep up railings strong enough for idlers to lounge against, or children to play upon.[31] Look out, there is another sled!” As I rang the door-bell I heard Jones mutter:—
“Those boys ought to be indicted for obstructing the sidewalk in such a way.”
“True for you,” I mentally ejaculated, “I remember that one of those bewitched and besaddled wheelbarrow concerns, yclept velocipedes, was held to be an indictable obstruction.”[32]
In due time my servant met us with the sleigh, and off we went, bells jingling, horse prancing, dog barking, all joyous with the exhilarating influences of frost and sunshine.
“Look here, old fellow,” said Tom, “your horse seems pretty skittish to-day; let us settle the law as to our mutual liability for damages before we run into anything. Who will have to pay? You don’t seem very much accustomed to driving.”
“Never mind that. The law is clear; as you are merely a passenger in my sleigh, you are not responsible for any misconduct of which I may be guilty while driving; you have nothing to do with the concern.[33] Even if I had only borrowed the turn-out, and kindly let you take the ribbons, I still would be the party responsible for negligence.”[34]
“That’s satisfactory,” returned my friend. “But would it not be different if we had both hired the horse and cutter?”
“Quite correct, Mr. T. J.; your store of legal lore is rapidly accumulating. In the case you put, both of us would be equally answerable for any accident arising from the misconduct of either whilst it was under our joint care,[35] and if we had hired the horses to draw my sleigh, and had likewise obtained the services of a driver, then we would not be liable for the negligence or carelessness of that driver.”[36]
“Look out! you had better keep on your own side of the road,” said Jones.
“Never mind, I can go on either side. I’ll only have to keep my eye a little wider open to avoid collisions;[37] besides, there is plenty of room for any person to pass, so he would have only himself to blame in case of accidents.”[38]
“A person approaching you might think there was not sufficient space.”
“If an accident happens, it will be a matter of evidence whether I have left ample room or not;[39] so you can look about you and see.”
“But suppose some fiery steed was to run into yours?” urged Thomas, “or you upset in the ditch?”
“My being on the wrong side would not prevent my recovering against a negligent driver, as long as there is room for him to pass without inconvenience.[40] Nor would it interfere with my getting damages from the city for injuries caused by their defective roads.[41] Whoa, old fellow!” I cried, just as I was on the point of running over a philosopher who was walking slowly over a crossing gazing up at the azure vault of heaven. “What a stupid donkey; it is as much his business to be watchful and cautious that he does not get under my sleigh, as it is mine that my sleigh does not get over him![42] It is gross carelessness for one to attempt to cross a street when he sees a horse and vehicle coming rapidly along; and if that fellow had been injured, he could have got nothing out of me.[43] A man who does not use all his senses when crossing a highway is guilty of contributory negligence, and so loses all right of action.”[44]
“Yes,” said T. J. “Still a foot passenger has a clear right to cross a road, and persons driving must avoid running him down; it will be no valid excuse that one could not pull up his nag for fear of the reins breaking, for he should have good harness.[45] But we may pass a pedestrian promenading on the road on whichever side is most convenient, for the rules of the road do not apply to walkers;[46] they have no prior right of way.”[47]
“No; men walking and driving have equal rights on the streets; all must exercise care and prudence;[48] and a pedestrian should not indulge in nice calculations of chances, and run the gauntlet of carriages in crossing a road.”[49]
“I was out driving last Sunday”—Jones began.
“Oh, you naughty man!” I cried. “Have you no respect for the Sabbath day? or perhaps you wanted to have a ride without giving a quid pro quo?”
“How could I do that?” queried my friend.
“Don’t you know,” replied I, “that a man cannot recover for the hire of a horse and buggy, let on Sunday for a pleasure drive?[50] But if the livery man imagined that the errand on which you were bound was one of necessity or charity, he would not be punishable for a breach of the Sunday laws.”[51]
“Well, but my drive was a work of charity (according to its original meaning), if not of necessity. I was going to see Miss Blank.”
“That very point was raised sometime since in Massachusetts, where travelling on the Lord’s Day is forbidden. A young man, who had to work all the week, was going to visit his betrothed on Sunday, when he came to grief through a defect in the highway. The question whether this might not have been a work of necessity or charity, was raised, but unfortunately, the matter was not decided.[52] In one case, however, it was held that a man might lawfully hire a horse and carriage to go and visit his paternal progenitor, who resided in the country.[53] In some of the States, where the laws for the observance of the Sabbath are rigorous, and travelling on that day is forbidden, young swells hire horses and race them, knowing that they will not have to pay for any injuries done to the old nags;[54] not even if they die from the Jehu-like driving.[55] But, come, let us hear more about Miss Blank, Joney, my boy.”
“I presume,” said Jones, “that one hurt while travelling would have to show that the journey was from necessity or charity? Would one have to stay in the house all day?”
“Oh, no; even in Puritanic Boston it has been decided that walking half a mile or so in the streets on a Sunday evening, without any intention of going anywhere save home again, is not travelling within the meaning of the act.[56] And of course one may go to church or to his place of worship, no matter what may be the style of the ceremony. Once Mrs. Feital, a Spiritualist, went to a camp-meeting where Miss Ellis was put in a box with her hands tied: music was heard coming from the box, and when it was open Miss Ellis was found with her hands untied, and a ring that had been on her finger was then on the end of her nose. On her way home from these amusing, if not instructive services, Mrs. Feital broke her leg on the cars. The railway company tried to prove that this was not divine service, but the jury gave a verdict of $5,000 damages, and the court refused to interfere.[57] On the other hand, a poor sinner who was injured on a horse car while going to visit a friend, was held to have violated the sanctity of the Sabbath and broken the law of the land, and so was precluded from recovering damages.”[58]
“But is not the rule in Massachusetts exceptional?” queried my companion.
“In Vermont and Maine, as well as in Massachusetts, it has been held that if one is driving or travelling on Sunday, without excuse, he cannot maintain an action against the municipality for any damage he may suffer through defects in the highway, on the ground that the town is not legally liable to furnish a man with a safe highway at a time when he is by law forbidden to travel on it.[59] Some of the decisions in these States depend upon the peculiar legislation and custom of the State, more than on any principle of justice or law;[60] and they cannot be sustained consistently with the broad principles of the law of negligence laid down by the courts generally.[61] The fact that one was doing an unlawful act when injured will not prevent a recovery, unless the act was such as would naturally tend to produce the injury.[62] If one breaks the law, the law itself, and not a carrier or town, should inflict the penalty. In other States,—New Hampshire, New York, Pennsylvania, Wisconsin, for example, one can sue for damages though injured while travelling on Sunday.[63] And in England Sunday travellers are especially favored by the legislature, for to none others can the publican dispose of beer, wine or spirits on that day.[64] But come, what about Miss Blank?”
“By the way,” said Jones, “have you seen that anecdote told by Erskine about Lord Kenyon, and which has recently been brought to light?”
“No. Has it anything to do with driving?”
“Everything. Kenyon was trying a case at the Guildhall and seemed disposed to leave it to the jury to say whether the plaintiff might not have saved himself from being run into by the defendant by going on to the wrong side of the road, where—according to the witnesses—was ample room; so Lord Erskine in addressing the jury said: ‘Gentlemen,—If the noble and learned judge, in giving you hereafter his advice, shall depart from the only principle of safety (unless where collisions are selfish and malicious), and you shall act upon it, I can only say that I shall feel the same confidence in his lordship’s general learning and justice, and shall continue to delight, as I always do, in attending his administration of justice: but I pray God that I may never meet him on the road!’ Lord Kenyon laughed, and so did the jury, and in summing up the judge told them that he believed it to be the best course stare super antiquas vias.”
“Not so bad!”
On and on we drove; the very air seemed alive With the tintinnabulation that so musically wells from the jingling and the tinkling of the bells in the icy air of winter.