Here a low wailing cry of “Oh, we might have all been killed—been killed—been killed”—uttered by one of the old maids, the others joining in the chorus, struck upon our ears. I chimed in with:—
“And if we had, allow me to inform you ladies, that neither we ourselves nor those who come after us could recover damages against the company therefor, because it would have been owing to the gross carelessness of our driver,[189] and we would be considered as being in the same position as he is and partakers with him in his sins.”[190]
“That’s so,” said my friend. “Every traveller in a conveyance is so far identified with the man who drives or directs it, that if any injury is sustained by him from collision with another vehicle, through the joint negligence of the drivers of the two traps, so that his driver could not maintain an action against the other driver, the passenger is himself equally prevented suing.”[191]
“What a shame!” chorused the Graces, plus one. “And is there nobody you can punish?” they querulously queried.
“Oh, yes; you can sue your own driver, or his employer. You have a clear and undoubted remedy against them.”[192]
“Much good it would do you to sue me,” growled the man. “You can’t take the breeks off a Heelander.”
“It has always seemed to me,” I remarked to the legal gentleman beside me, “to be highly unreasonable that by a legal fiction the passenger should be so identified with the driver. What do you think on that point?”
“I quite agree with you,” he returned, “and with my celebrated namesake, Mr. Smith, and I think that the question why both the wrong-doers should not be considered liable to a person free from all blame—not answerable for the acts of either of them—and whom they have both injured, should be more seriously considered than it has yet been.”[193]
“I was glad to see that recently in New Jersey where a man on a street car was injured by a railway train, the court held that the negligence of the car-driver could not prevent the man from getting damages, the driver not being his servant.”[194]
“By the way,” said my friend, “did you notice how near we came to the post of the railway crossing sign-board, as the man backed the horses from the track? I think such posts are a perfect nuisance.”