“Yes,” said my friend, “towns are not absolved from their responsibility because some one else is bound by law to keep the road smooth and safe.[172] But of course the liability is limited to injuries caused by defects and obstructions for which the town might be indicted, or which by law they are bound to remove.”[173]
“I remember,” I said, “hearing of a man who lost his horse in a deep mud-hole filled with water and partly in the highway, which he took for a watering-place, recovering its value from the city.”[174]
“Yes; if it had been a hired nag, for the value of which the driver had to pay the owner, his rights and his wrongs would have been just the same.[175] If this coach had been upset just now, the road company would have been liable to the coach proprietor for all injuries to this venerable structure on which we are perched, but not for any damages which we might recover against him for bruises and scratches, dislocations and broken bones that might fall to our lot.”[176]
“Still there are some cases of accidental damage which the law regards as mere misfortunes, or pure accidents, where no negligence or fault is imputable to any one; as where a man was thrown out of his wagon and broke his collarbone in consequence of the wheel getting into a small rut. The court will not assume that the badness of the road is proved beyond a peradventure merely because an accident took place while the driver was exercising due care.”[177]
“One is not required, however, to exercise extraordinary care and prudence.[178] And as old Lord Ellenborough says, before one can recover damages he must not only show that there was an obstruction that caused the trouble, but also that he himself was not lacking in ordinary care and in endeavoring to avoid it.”[179]
“I always think highly of Ellenborough’s decisions,” I said, “although he was such a ninny that when in ‘the Devil’s Invincibles’ (a famous volunteer corps), he was ever in the awkward squad; and Eldon used to say that he thought Ellenborough more awkward than himself, but others thought it was difficult to determine which of the two was entitled to bear the palm.”
“Ah, yes! ‘the Devil’s Invincibles’ was the corps in which there were some attorneys, and when Lieutenant-colonel Cox, Master in Chancery, who commanded, gave the word ‘Charge,’ two-thirds of the rank and file took out their notebooks and wrote ‘6s. 8d.’”
“Ha! ha! that is as good as the story of the volunteer company of lawyers, who, when the drill-sergeant gave the command ‘Right about face,’ all stood still, and cried, ‘Why?’”
“Unlike the six hundred,
‘Theirs was to make reply,
Theirs but to reason why,
Theirs not to do, nor die.’”