[179] Butterfield v. Forrester, 11 East, 60.
CHAPTER V.
NEARLY DRIVEN TO DEATH, AND HOW TO PASS.
Narrow Escape.—Look out for the Locomotive when the Bell rings.—Railway not liable when Driver in Fault.—Horses frightened by Engine.—Ferry-boats and Men.—On the Wrong Side.—The Laws of the Road.—Fatal Indecision.—Lien on Trunks.—Reflections on Lawyers.
We had a sharp awakening from our calm repose. A shrill cry of “Stop!” a jerk that nearly threw us to the ground as the driver reined in his horses, the wild fierce screech of an engine, the rumbling roar of a train as it dashed by, recalled us effectually from our wanderings in dream-land to the fact that we had been near a sudden and a fearful death. The driver had been nodding sleepily on his box and had not noticed that we were so near a railway crossing, and so had not looked out for the train; and when aroused, the horses’ feet were actually upon the track and the cars but some seventy yards distant. The train as it rushed past almost scraped the horses’ noses, so little had he been able to back them. On looking round I saw that the track must have been visible for some time before we came upon it, and one of the ladies said that she had heard a whistle a few seconds previously.
Of course, as might be expected, we all launched forth against Master Coachee, who was too frightened to reply. I said:—
“Don’t you know that you are bound to keep your eyes open? It is your duty, and a duty dictated by common sense and prudence, on approaching a crossing, to do so carefully and cautiously, both for the sake of your own passengers and those travelling by rail.”[180]
“Yes,” chimed in my friend, “Chief Baron Pollock says, that a railway track per se is a warning of danger to those about to go upon it, and cautions them to see whether a train is coming.”[181]
“One must judge and act reasonably in crossing a track,” I continued. “One must not blindly and willfully drive upon it whether there is danger to be apprehended from his doing so or not. If one willfully goes upon the line of rails, as you were about to do, when danger is imminent and obvious, and sustains damage, he must bear the consequences of his own rashness and folly.[182] In fact, of late it seems to have been held that a man crossing a railway where there are no gates or flagmen must stop, listen, and keep a sharp lookout for the trains.”[183]
“And,” quoth my new friend, “a traveller is not exonerated from the duty of looking up and down the rails before going upon them, by reason of the engineer omitting to ring the bell or blow the whistle; nor is the company in such a case liable for injuries,[184] unless it is shown that the engineer’s omission had a tendency to produce the loss or damage.”[185]
“The Court of Appeals in the State of New York, however, holds that a traveller on a public road has a right to rely upon railway companies obeying the law and giving the necessary warnings when a train is approaching a crossing.[186] And if through negligence horses are frightened at a crossing, the railway company is responsible for all damages arising.[187] Moreover, the late Sir J. B. Robinson, C. J., of Ontario thought that where the proper signals were neglected, the company could not excuse themselves by showing that the injured one did not manage so well as he might have done, or that his horse was restive or unsteady;[188] and”—