A public thoroughfare is a way for foot-passengers as well as carriages, and a person has a right to walk on the carriage-way if he pleases; but, as Chief Justice Denman once remarked, "he had better not, especially at night, when carriages are passing along."[48 ] However, all persons have an undoubted right to walk on the beaten track of a road, if it has no sidewalk, even if infirm with age or disease, and are entitled to the exercise of reasonable care on the part of persons driving vehicles along it. If there is a sidewalk which is in bad condition, or obstructed by merchandise or otherwise, then the foot-passenger has a right to walk on the road if he pleases. But it should be borne in mind that what is proper on a country road might not be in the crowded streets of a city. In law every one is bound to regulate his conduct to meet the situations in which he is placed, and the circumstances around him at the time. A person infirm with age or disease or afflicted with poor eyesight should always take extraordinary precaution in walking upon the road.[49 ] Thus, a man who traverses a crowded thoroughfare with edged tools or bars of iron must take especial care that he does not cut or bruise others with the things he carries. Such a person would be bound to keep a better lookout than the man who merely carried an umbrella; and the man who carried an umbrella would be bound to take more care when walking with it than a person who had nothing.[50 ]
Footmen have a right to cross a highway on every proper occasion, but when convenient they should pass upon cross-walks, and in so doing should look out for teams; for it is as much their duty, on crossing a road, to look out for teams, as it is the duty of the drivers of teams to be vigilant in not running over them. "The law of the road" as to the meeting of vehicles does not apply to them. They may walk upon whichever side they please, and turn, upon meeting teams, either to the right or to the left, at their option, but it is their duty to yield the road to such an extent as is necessary and reasonable; and if they walk in the beaten track or cross it when teams are passing along, they must use extraordinary care and caution or they will be remediless in case of injury to themselves. They may travel on the Lord's day for all purposes of necessity or charity; and they may also take short walks in the public highway on Sundays, simply for exercise and to take the air, and even to call to see friends on such walks, without liability to punishment therefor under the statutes for the observance of the Lord's day, and they can recover damages for injuries wrongfully sustained while so walking.[51 ]
CHAPTER XII.
OMNIBUSES, STAGES, AND HORSE-CARS.
Nearly every one has occasion, more or less often, to travel over the public ways in the coaches of passenger carriers. Whoever undertakes to carry passengers and their baggage for hire from place to place is bound to use the utmost care and diligence in providing safe and suitable coaches, harnesses, horses, and coachmen, in order to prevent such injuries as human care and foresight can guard against.
If an accident happens from a defect in the coach or harness which might have been discovered and remedied upon careful and thorough examination, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a passenger happening by reason of such accident.
On the other hand, where the accident arises from a hidden and internal defect, which careful and thorough examination would not disclose, and which could not be guarded against by the exercise of sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense.
If a passenger, in peril arising from an accident for which the proprietors are responsible, is in so dangerous a situation as to render his leaping from the coach an act of reasonable precaution, and he leaps therefrom and breaks a limb, the proprietors are answerable to him in damages, though he might safely have retained his seat.[52 ]
When the proprietors of stages or street-car coaches, which are already full and overloaded, stop their coaches, whether at the signal or not of would-be passengers, and open the doors for their entrance, they must be considered as inviting them to ride, and thereby assuring them that their passage will be a safe one, at least so far as dependent upon the exercise of reasonable and ordinary care, diligence, and skill, on their part, in driving and managing their horses and coaches; and, in fact, they are rather to be held responsible for such increased watchfulness and solicitous care, skill, and attention, as the crowded condition of the vehicle requires. If, under such circumstances, a passenger is thrown out of or off the coach by its violent jerk at starting or stopping, or in any other way through the negligence of the proprietors or their agents, he may hold them liable for his injuries.[53 ] A passenger must pay his fare in advance, if demanded, otherwise he may have to pay a fine for evading fare; and if he is riding free, the proprietors are not responsible, except for gross negligence; and he must also properly and securely pack his baggage, if he expects to recover damages in case of loss. A mail-coach is protected by act of Congress from obstructions, but is subject in all other respects to "the law of the road."[54 ]