CHAPTER XVI.

DON'T.

In school, church, and society many things are taught by the

prohibitory don't; and thus many rules of law relating to public and

private ways may be taught and illustrated in the same way. For

instance:--

Don't ever drink intoxicating liquor as a beverage, at least in

large quantities. If you ever have occasion to use it at all, use it

very sparingly, especially if you are travelling or are about to

travel with a team; for if you should collide with another team, or

meet with an accident on account of a defect in the way, in a state

of intoxication, your boozy condition would be some evidence that

you were negligent. The law, however, is merciful and just, and if

you could satisfy the court or jury that notwithstanding your

unmanly condition you were using due care, and that the calamity

happened through no fault of yours, you would still be entitled to a

decision in your favor; but when you consider how apt a sober human

mind is to think that an intoxicated mind is incapable of clear

thought and intelligent action, I think you will agree with the

decisions of the courts, which mean, when expressed in plain

language, "You had better not be drunk when you get into trouble on

the highway."[97]

[97] 3 Allen, 402; 115 Mass. 239.

Don't ever approach a railway crossing without looking out for the

engine while the bell rings, and listening to see if the train is

coming; for there is good sense as well as good law in the suggestion

of Chief Baron Pollock, that a railway track _per se_ is a warning of

danger to those about to go upon it, and cautions them to see if a

train is coming. And our court has decided that when one approaches a

railway crossing he is bound to keep his eyes open, and to look up and

down the rails before going upon them, without waiting for the engineer

to ring the bell or to blow the whistle.[98] It is a duty dictated by

common sense and prudence, for one approaching a railway crossing to do

so carefully and cautiously both for his own sake and the sake of those

travelling by rail. If one blindly and wilfully goes upon a railway

track when danger is imminent and obvious, and sustains damage, he must

bear the consequences of his own rashness and folly.

[98] 12 Met. 415.

Don't drive horses or other animals affected by contagious diseases

on the public way, or allow them to drink at public watering-places,

or keep them at home, for that matter. The common law allows a man

to keep on his own premises horses afflicted with glanders, or sheep

afflicted with foot-rot, or other domestic animals afflicted with

any kind of diseases, provided he guards them with diligence and

does not permit them to escape on to his neighbor's land or the

public way. But under the statute law of this State, a man having

knowledge of the existence of a contagious disease among any species

of domestic animals is liable to a fine of five hundred dollars, or

imprisonment for one year, if he does not forthwith inform the

public authorities of such disease.[99] Aside from the penalty of the

statute law, it is clearly an indictable offence for any one to take

domestic animals affected with contagious diseases, knowing or

having reason to know them to be so affected, upon the public ways,

where they are likely to give such diseases to sound animals; and he

would be answerable in damages, besides.[100]

[99] St. 1885, c. 148.

[100] 2 Rob. N.Y. 326; 16 Conn. 200.

If you are afflicted with a contagious or infectious disease, don't

expose yourself on a highway or in a public place; and don't expose

another person afflicted with such disease, as thereby you may

jeopardize the health of other people, and your property also, in

case you should be sued by some one suffering on account of your

negligence.[101]

[101] 4 M. & S. 73; Wood on Nuisances, 70.

When there is snow on the ground, and the movement of your sleigh is

comparatively noiseless, don't drive on a public way without having

at least three bells attached to some part of your harness, as that

is the statute as well as the common law. By the statute law you

would be liable to pay a fine of fifty dollars for each offence. And

by the statute and common law, in case of a collision with another

team, you would probably be held guilty of culpable negligence and

made to pay heavy damages. Of course you would be allowed to show

that the absence of bells on your team did not cause the accident or

justify the negligence of the driver of the other team, but it would

be a circumstance which would tell against you at every stage of the

case.[102]

[102] 12 Met. 415; 11 Gray, 392; 8 Allen, 436.

If you have no acquaintance with the nature and habits of horses,

and no experience in driving or riding them, don't try to ride or

drive any of them on a public way at first, but confine your

exercise in horsemanship to your own land until you have acquired

ordinary skill in their management; for the law requires every

driver or rider on a highway to be reasonably proficient in the care

and management of any animal he assumes to conduct through a public

thoroughfare.[103]

[103] 2 Lev. 173.

Don't ride with a careless driver, if you can help it, because every

traveller in a conveyance is so far identified with the one who

drives or directs it, that if any injury is sustained by him by

collision with another vehicle or railway train through the

negligence or contributory negligence of the driver, he cannot

recover damages for his injuries. The passenger, in law, is

considered as being in the same position as the driver of the

conveyance, and is a partaker with him in his negligence, if not in

his sins.[104]

[104] Addison on Torts, Sec. 479.

If you have a vicious and runaway horse, and you know it, you had

better sell him, or keep him at work on the farm. Don't, at any

rate, use him on the road yourself, or let him to other people to

use thereon; for if in your hands he should commit injuries to

person or property, you would have to foot the bills; and if he

should injure the person to whom you had let him, unless you had

previously informed him of the character and habits of the horse,

you would be liable to pay all the damages caused by the viciousness

of the horse. If you should meet with an accident by reason of a

defect in the highway, you could not recover anything, however

severely you might be injured or damaged, provided the vicious

habits of the horse contributed to the accident.[105]

[105] 4 Gray, 478; 117 Mass. 204.

In riding or driving keep hold of the reins, and don't let your

horses get beyond your control; for if you do your chances of

victory in a lawsuit will be pretty slim. If you tie up your reins

for the purpose of walking in order to get warm or to lighten the

load, and let your horses go uncontrolled, and they run over a child

in the road and kill it or seriously injure it, you will probably

have to pay more than the value of the horses, unless they are very

good ones. Or if, going thus uncontrolled, they fail to use due care

and good judgment in meeting other teams, and in consequence thereof

damages occur, you would be expected to make everything

satisfactory, because your team is required to observe "the law of

the road" whether you are with it or not, especially if you turn it

loose in the highway. Even if you have hold of the reins, and your

horses get beyond your control by reason of fright or other cause,

and afterwards you meet with an accident by reason of a defect in

the highway, you cannot recover anything.[106]

[106] 101 Mass. 93; 106 Mass. 278; 40 Barb. 193.

Don't encroach upon or abuse the highway, either by crowding fences

or buildings upon its limits or by using it as a storage yard. If

you set a building on the line of the road, and then put the

doorsteps, the eaves, and the bow-windows of the building over the

line, you are liable to an indictment for maintaining a public

nuisance; and possibly you may be ordered by the court to remove

them forthwith at your own expense.[107] If you build an expensive

bank-wall for a road fence, and place any part of it over the line,

you must remove it upon the request of the public authorities, or

else take your chances on an indictment for maintaining an illegal

obstruction in the highway. If you deposit on the roadside logs,

lumber, shingles, stones, or anything else which constitutes an

obstruction to travel or a defect in the way, or which is calculated

to frighten horses of ordinary gentleness, and allow the same to

remain for an unreasonable length of time, you are liable to respond

in damages for all injuries resulting therefrom. Even if the town

should have to settle for the damages in the first instance, you

might still be called upon to reimburse the town.[108]

[107] 107 Mass. 234.

[108] Wood on Nuisances, Secs. 326, 327; 102 Mass. 341; 18 Me.

286; 41 Vt. 435.

Don't ride on the outside platform of a passenger coach; for if you

cling upon a crowded stage-coach or street car, and voluntarily take

a position in which your hold is necessarily precarious and

uncertain, you have no right to complain of any accident that is the

direct result of the danger to which you have seen fit to expose

yourself. However, if the coach is stopped for you to get on and

fare is taken for your ride, the fact that you are on the platform

is not conclusive evidence against you; but the court will allow the

jury to determine, upon all the evidence and under all the

circumstances, whether you were in the exercise of due care,

instructing them that the burden of proof is upon you to show that

the injury resulted solely by the negligence of the proprietors of

the coach.[109]

[109] 103 Mass. 391; 8 Allen, 234; 115 Mass. 239.

Don't jump off a passenger coach when it is in motion; for if you

get off without doing or saying anything, or if you ring the bell

and then get off before the coach is stopped, without any notice to

those in charge of it, and without their knowing, or being negligent

in not knowing, what you are doing, the coach proprietors are not

liable for any injury you may receive through a fall occasioned by

the sudden starting of the coach during your attempt to get off.[110]

[110] 106 Mass. 463.

Don't wilfully break down, injure, remove, or destroy a milestone,

mile-board, or guide-post erected upon a public way, or wilfully

deface or alter the inscription on any such stone or board, or

extinguish a lamp, or break, destroy, or remove a lamp, lamp-post,

railing, or posts erected on a street or other public place; for if

you do you are liable to six months' imprisonment or a fine of fifty

dollars.[111]

[111] Pub. St. c. 203, Sec. 76.

If in travelling you find the road impassable, or closed for

repairs, and you find it convenient to turn aside and enter upon

adjoining land in order to go on your way, don't be careless or

imprudent; for if you take down more fences and do more damage than

necessary, you may have to answer in damages to the owner of the

land; and if you meet with an accident while thus out of the road,

you cannot look to the town for any remuneration therefor, because

when you go out of the limits of the way voluntarily, you go at your

peril and on your own responsibility.[112]

[112] 8 Met. 391; 7 Cush. 408; 7 Barb. 309.

Don't make the mistake of supposing that everything that frightens

your horse or causes an accident in the highway is a defect for

which the town is liable. If a town negligently suffers snowdrifts

to remain in the road for a long time, and thereby you are prevented

from passing over the road to attend to your business, or, in making

an attempt to pass, your horses get into the snow and you are put to

great trouble, expense, and loss of time in extricating them, you

are remediless unless you receive some physical injury in your

person or property; as the remedy provided by the statutes, in case

of defects in the highway, does not extend to expenses or loss of

time unless they are incident to such physical injury. In other

words, the statute gives no one a claim for damages sustained in

consequence of inability to use a road.[113] And so a town or city is

not obliged to light the highways, and an omission to do so is not a

defect in the way for which it is liable.[114]

[113] 13 Met. 297; 6 Cush. 141.

[114] 136 Mass. 419.

Nor is the mere narrowness and crookedness of a road a defect within

the meaning of the statutes. Towns and cities are only required to

keep highways in suitable repair as they are located by the public

authorities, and they have no right to go outside the limits defined

by the location in order to make the road more safe and convenient

for travel. If a highway is so narrow or crooked as to be unsafe,

the proper remedy is by an application to the county commissioners

to widen or straighten it.[115] Nor is smooth and slippery ice, in

country road or city street, a defect for which a town or city is

liable, if the road whereon the ice accumulates is reasonably level

and well constructed. In our climate the formation of thin but

slippery ice over the whole surface of the ground is frequently only

the work of a few hours; and to require towns and cities to remove

this immediately or at all is supposing that the legislature

intended to cast upon them a duty impossible to perform, and a

burden beyond their ability to carry.[116]

[115] 105 Mass. 473.

[116] 12 Allen, 566; 102 Mass. 329; 104 Mass. 78.

If you meet with an accident on the highway by reason of a defect

therein, don't fail to give notice in writing within thirty days, to

the county, town, place, or persons by law obliged to keep said

highway in repair, stating the time, place, and cause of the injury

or damage.[117] This notice is a condition precedent to the right to

maintain an action for such injury or damage, and cannot be waived

by the city or town.[118] Nothing will excuse such notice except the

physical or mental incapacity of the person injured, in which case

he may give the notice within ten days after such incapacity is

removed, and in case of his death it may be given by his executors

or administrators.[119] Formerly it was essential that the time,

place, and cause of the injury should be set forth in the notice

with considerable particularity, but now the notice is not invalid

by reason of any inaccuracy in stating the time, place, and cause,

if the error is not intentional and the party entitled to notice is

not misled.[120]

[117] Pub. St. c. 52, Secs. 19-21.

[118] 128 Mass. 387.

[119] Pub. St. c. 52, Sec. 21.

[120] St. 1882, c. 36.

Don't convey by warranty deed a piece of land over which there is a

public or a private way, without conveying subject to such way; for

if you do you may be called upon to make up the difference in value

in the land with the incumbrance upon it and with it off, which is

regarded as a just compensation for the injury resulting from such

an incumbrance.[121]

[121] 2 Mass. 97; 15 Pick. 66; 2 Allen, 428.

Finally, don't keep a dog that is in the habit of running into the

road and barking at passing teams. You had better get rid of him or

break him of the habit. Under our statutes the owner or keeper of a

dog is responsible to any person injured by him, either in person or

property, double the amount of damage sustained; and after he has

received notice of the bad disposition of his dog, he is liable to

have the damage increased threefold.

Every dog that has the habit of barking at people on the highway is

liable any day to subject his owner or keeper to large liabilities;

for if he frightens a horse by leaping or barking at him in mere

play, and the horse runs away, or tips over the vehicle to which he

is hitched, his owner or keeper is responsible for double the

damages thus caused by his dog. Hence I repeat the injunction, Get

rid of such a dog or break him of the habit; and if this cannot be

done, then break his neck.

Perhaps it might be well to say, in this connection, that any

traveller on the road, either riding or walking peaceably, who is

suddenly assaulted by a dog, whether licensed or not, may legally

kill him, and thus relieve his owner or keeper of a disagreeable

duty.[122]

[122] 11 Gray, 29; 1 Allen, 191; 3 Allen, 191.

The Road and the Roadside · 第 16 / 19 章