“I should think not. It must be a poor body and mind to be worth no more than that.”
“Where,” I continued, “Mrs. Toms and her eight-year old boy were crossing a bridge in their buggy, the horse shied at some new planks on the bridge, backed to the edge and the hind wheels over a bank, Mrs. Toms tumbled out into the water some fourteen feet below, the jury considered that she had been driving in a proper manner and that the road ought to have had guards along the embankment. The court agreed with them, and held the township liable to make good her wounds and bruises; the want of railings was deemed the proximate cause of the injury, and not the horse becoming frightened or unmanageable.[94] A road which passes over a bank or bridge, or along a precipice, should always be properly guarded.[95] It seems that in the States of Vermont and Massachusetts corporations will be held liable for injuries (caused by defective ways) which are primarily imputable to pure accident (that is to an unexpected occurrence or event for which no one is responsible), if the accident happened without the fault of the injured one, and is such that common prudence could not have foreseen or guarded against, and if without the defect it would not have occurred.[96] Where, for instance, a runaway was crowded against the plaintiff’s nag, owing to an obstruction in the road, the town was held liable; for streets should be so made as to be reasonably safe when such accidents, as may reasonably be expected occasionally to happen in the best regulated places, do occur.[97] And so when a carriage ran away with the people in it by itself and over an embankment.[98] And all roads ought to be wide enough to allow of the ordinary shyings and frights of horses with safety, for shying is one of the natural habits of the animal,[99] and it must be in such repair that even skittish creatures may be driven without any risk of danger from its condition.[100] The road, however, need not afford a perfectly clear track to a runaway horse.”[101]
“I wish that horse would stop switching his tail about,” remarked my wife.
“A very sensible desire on your part; for it has been decided in Massachusetts that the liability of a town for accidents arising from defects in a highway is removed if the defect could have been avoided had not the horse by throwing its tail over the reins freed itself from the driver’s control and so knocked the carriage against the obstacles complained of.”[102]
“It is a pity that judges have not something better to do than consider the shakings of a horse’s tail,” said my wife, who seemed to be growing cross.
“’Tis a pity that they decided as they did, for one can scarcely believe that the tossing of tails over the reins is one of those extremely unlikely and abnormal acts which are considered acts of God, and which ordinary sagacity cannot foresee; it seems rather an ordinary incident of travel and so a contingency against which the road-maker should provide.[103] However, to continue the subject on which I was dilating, although a traveller is bound to have his carriage and harness in good road-worthy condition, or else bear quietly the pains and penalties,[104] still he need not always see that his carriage is perfect, his team of the most manageable character and in the best training, ere he goes out for a turn. If he uses ordinary care and prudence and an evil befalls him from the state of the road (coupled with some accidental cause), he can recover for his damages.[105] In Maine, however, the judges seem inclined to take a different view and absolve the town from liability where the accident would not have happened but for something going wrong with the horse or carriage; they say that if they are satisfied that an accident happened from a defect in the road and a defect in the harness making it unsafe,—although the driver knew not of it and thought all was right,—the injured one cannot sustain an action against the town.[106] Where one Moulton”—
“Do you mean Beecher’s quondam friend?” asked my wife.
“Oh, no; it was before the days of Mrs. Tilton’s notoriety. This Moulton was driving on a bridge, and his horse, seeing another plunge into the water, became unmanageable and threw the wagon into the stream, there being no railing; the town had not to pay the damages.[107] And where a sleigh-bolt broke, and then the horse bolted and injured itself against a heap of stones in the road, the judges considered that the driver had not exercised due care, and therefore would have to settle the farrier’s little bill himself.[108] Similarly, where a horse being instigated thereto by some evil spirit, refused to hearken to the reins and so went over an unprotected bank, whereon, perchance, the wild thyme grew, the poor owner of the nag was requested to show that the accident would equally have occurred if the horse had not been so uncontrollable, before he could get anything out of the town.”[109]
A gentle snore from the partner of my joys and sorrows told me that I was wasting my eloquence and learning on the midnight air, so I forbore, and shortly after we reached our home safe and sound.