“Yes, as Best, C. J., once said, a coachman must have competent skill and must use that skill with discretion; he must be well acquainted with the road he undertakes to drive; he must be provided with steady horses, a coach and harness of sufficient strength and properly made, and also with lights by night. If there be the least failure in any one of these things, the duty of the proprietor is not fulfilled, and he is answerable for any injury or damage that happens.[157] He also is so unless the driver exercised a sound discretion at the time of the accident. If he could have exercised a sounder judgment or better discretion than he did, as by driving slower or faster, or by telling his passengers to dismount at a dangerous or difficult place, the owner must make compensation.”[158]
“Fortunately, however, for the pockets of carriers, they are not considered as actual insurers of the safety of those who intrust their precious bodies to them. Accidents will happen in the best regulated concerns, and it appears to be settled that when they do occur where there is no negligence or default, the law will protect carriers from the demands of injured ones.”[159]
“Oh, yes, that is a well-established doctrine, and many cases might be quoted to sustain it. Where, for instance, on a dark night the lights were obscured by a fog, or the coachman without any fault of his gets off the road.”[160]
“And also,” I chimed in, “where extreme cold prevented the driver doing his duty;[161] and where the reflection of the sun upon falling water frightened the horses so that they ran away and knocked things into pie;[162] and where an axle-tree that was sound and perfect snapped asunder.[163] And where a sleigh or a carriage upsets through mere accident and without culpable neglect on the part of the driver—as where he had been driving along a track in a ditch to take advantage of the small modicum of snow remaining and in turning on to the road again got into a hidden hole and upset—and the horses escape from the hands of the Jehu, and run away and do mischief to the person or property of other people; though undoubtedly the owner would be liable where there was clear negligence on the part of himself or driver which led to the carriage being overturned and the escape of his horses.[164] If a man has carelessly left his horses standing on the highway, while he is drinking or loafing in a tavern, and the horses run away and commit an injury, the right to recover damages is clear.[165] Even if a third party causes the stampede of the horses which are left standing alone, the owner will be liable for all damage done;[166] and it will be inferred that a horse was negligently fastened if it gets loose and runs away.[167] But where a pony and chaise were left standing in the street without any person to take care of them, and afterwards the pony was seen running away with the chaise, and those who saw the runaway did not know the cause of the starting. The owner of the turn-out, however, proved that his wife was holding the nag by the bridle, when a Punch and Judy show coming up frightened the pony, which breaking from the lady ran off, and Lord Denman in charging the jury, said: ‘If the facts are true as suggested by the defense, I very much think you will be disposed to consider this an inevitable accident; one which the defendants could not prevent.’”[168]
“Of course if one gentleman when out driving offers another a seat in his carriage, he is not liable at all for an accident afterwards occurring; unless, indeed, it were of a gross description; and, as nothing is more usual than for accidents to happen in driving, without any want of care on the part of the driver, no primâ facie presumption of negligence is raised when an accident does occur, so the injured one must give affirmative evidence of gross negligence on the part of his obliging friend.”
“Oh, yes; that is well settled by a case where the Privy Council reversed the decision of the Supreme Court of Victoria. A gentleman was conveying the plaintiff, who was a decorator and gardener in his employ, to perform for him certain work. The defendant, the gentleman, drove, and while on the road the king-bolt broke, the horses bolted, the carriage was overturned, the plaintiff thrown out and stunned; and when the man came to himself the horses and forewheels of the buggy had vanished. There being no evidence of gross negligence, the decorator had to bear his injuries and bruises unavenged.[169] One cannot fairly be expected to examine very strictly and carefully the state of the bolts and fastenings of his carriage every time he goes out with it.”[170]
“By the way,” said my companion, “your own right to recover is perfectly clear, for I am sure that I have seen in some place or other that where a woman was jolted off a stage and had her leg fractured by some luggage that was thrown on it, she was successful in a suit against the owners of the vehicle.”[171]
“Thanks for the information,” I replied, “I did not know that there was a case so exactly on all fours with my own.”
“A little research nowadays will enable one to find a decision on almost every possible point the mind of man can conceive, so great is the number of the reports now accumulating with fearful rapidity upon the shelves of law libraries. Ah me! the speed with which the yearly accretions of reports fill up every library, not of Brobdignagian proportions, is an appalling phenomenon. It makes me sigh to consider the lot of our grandchildren who may chance to commence the study of law! I”—
A sudden jerk and bump, caused by a wheel hitting against a stump in the middle of the road, stopped the sentence and set us talking about the liability of road companies and municipalities as to keeping the roads in a proper, safe, and convenient condition.