A SLEIGH DRIVE.
Fast Driving.--Teams passing.--Clearing Snow.--Impassable
Roads.--Stuck in a Snow-drift.--Upset.--Demolishing Juveniles.--Mind
your Children.--In the Ditch.--Damages for Bad Roads.--Unsafe
Bridges.--Horses shying.--Whisking Tails.--Runaways.
All the morning
“Out of the bosom of the air,
Out of the cloud-folds of her garments shaken,
Over the woodlands brown and bare,
Over the harvest fields forsaken,
Silent, and soft, and slow,
Descended the snow,”
But when the sun turned downwards towards his couch, he shone out clear
and bright, making every snow-flake glisten and sparkle in the bracing
air; so Mrs. L. determined to utilize the splendid weather, and pay a
round of country visits. Of course I had to drive her.
The steeds needed no whip to urge them on. Swiftly we glided down the
street, and over the bridge we trotted fast without drawing rein. The
boards creaked and cracked, as when one strives to creep upstairs,
unheard, at midnight. My wife said in surprise:--
“Eldon, did you not observe the notice threatening prosecution
according to the utmost rigor of the law to all crossing the bridge
quicker than at a walk? Why do lawyers break the law?”
“All right, my dear; if the bridge had broken down while we were
trotting over it, I could not have sued the owners for damages.[65] But
as we are over it, we need not discuss the subject.”
“But,” urged my wife, “it is not right to drive so fast.”
“No; I know it. In fact it is an indictable offense to drive through
crowded streets like these so as to endanger the safety of others.”[66]
“How fast may one go?”
“That is difficult to say. Depends on circumstances. A mile in four
minutes is too fast,[67] and if you go a mile in three minutes and ten
seconds you become liable for all consequences.[68] Even where a man
was driving at only a smartish pace and ran over a donkey he had to pay
for it.[69] But one may drive rapidly on an open country road where the
chance of collision is slight.”
“Look out, Eldon!” cried my gentle spouse. “See, a load of wood has
just upset there! What a nuisance!”
“Not legally so, as the man went over accidentally.”[70]
As we drove past we heard the woodman complaining bitterly that a
sleigh that had just met him had not turned out enough, and hence his
mishap.
“Too bad,” I said; “people ought to show an accommodating spirit and
cautious watchfulness in avoiding difficulties when the roads are so
badly blocked with snow.”[71]
“But,” said my wife, who seemed to have an idea in her head,--there
was an abundance of room for it,--of qualifying herself to carry on my
business if some unforeseen event should chance to carry me off before
I had realized some little independence. “But, I thought the towns, or
corporations, were bound to keep their roads safe and convenient. I am
sure that this one is neither safe nor convenient when we have to pass
any one.”
“Your supposition is correct. The rule applies as well to a turnpike
company as to a town,[72] and to defects and obstructions caused by
drifts of snow.[73] Accumulations of snow and ice must be removed so
that streets and highways may be passable.[74] Of course it is plain,
as a Canadian judge once remarked, that the owner of a road cannot be
expected to clear the snow off the ground whenever it falls, or even
to remove the ice which may form there. It would frequently be an
impossible work to attempt it, and it would often be mischievous and a
nuisance to effect it. Snow forms the best and most suitable means of
travel in winter, and even when it falls to a great and unusual depth,
it is not the duty of any one, as a rule, to remove it from the road.
Nor can any one be required to remove mud and mire from a road. There
are, however, cases when snow, ice, and mud may and must be removed,
and that is when they cause an obstruction or danger which can properly
and reasonably be removed.[75]
“If the corporation neglects its duty, what must an unfortunate
traveller do?”
“If the highway is impassable for any reason, he certainly should not
try to force a passage, for he would not be able to recover for his
loss of time, or his trouble and expense in extricating his team from
a snow-drift.[76] But he may go upon the adjoining land,[77] as we are
going to do now.”
“That is rather hard upon the poor farmers,” said my wife. “Why, we may
be driving over a field of fall wheat!”
“That makes no difference; one ought, however, to keep as near the road
as possible.”[78]
“It takes much longer going by this circuitous route,” said Mrs.
Lawyer, with a woman’s impatience.
“Still, unfortunately, we cannot get compensation from the town
for the delay, even though we had to neglect important business in
consequence.[79] But if, in addition to being made to neglect business,
one, after commencing his journey, is obliged to turn back and go by a
very roundabout way, there is some authority to show that he may get
damages.”[80]
For some minutes we had been winding in and out among lofty pines and
evergreens with boughs weighed down by the snow upon them, which was
now succumbing to the warm rays of the sun. Something caused my horses
to shy suddenly, and over we went, cutter, wife, buffaloes, self, and
all. Fortunately our steeds did not run off. At first, when I saw my
spouse lying extended on the ground, I was alarmed, but she quickly
reassured me by exclaiming:--
“Pleasant it is, when woods are green,
And winds are soft and low,
To lie amid some sylvan scene,
Where, the long drooping boughs between,
Shadows dark and sunlight sheen,
Alternate come and go.
“Beneath some patriarchal tree
I lie upon the ‘snaw,’
His hoary arm uplifted he,
And all the white leaves over me
Dripping their little drops in glee,
In one continuous thaw.”
“Come, come, get up,” I said. “Don’t lie there playing the
improvisatore and taking your death of cold, for I fear me I could not
recover damages, although we had to come in here because the road was
impassable, as I knew it was so before I set out, and therefore ought
to have gone some other way and not have come into this bush at my
peril.”[81]
Soon all was again as it had been, and merrily onward we went, now and
then calling at a house for a few minutes, and then on and on and on.
The day was too gloriously bright to spend much time with our friends
talking scandal. We came upon some children engaged in the exhilarating
amusement of sliding down hill, and one of them we nearly annihilated.
The horses’ feet were well nigh upon him before we noticed his little
red brick-top standing out in bold relief against the pure white snow.
“Ha!” I said, with a sigh of relief, “’tis well we did not knock the
youngster into a cocked hat. It might have taken a good slice off my
year’s profits if I had. I remember a man who was driving a loaded
team down a hill at no snail’s pace, when he came upon a little rascal
(not four years old) on his way to school, and who--to relieve the
monotony of the journey--was sliding down the hill (near the edge of
the road) lying upon his potatoe pouch on his hand-sleigh, his face
turned towards the right, his legs Y-like stretching out behind in the
opposite direction. At a distance the man had taken the boy for a dog,
then as he came nearer he thought the child would get out of the way,
and when at length he did himself try to turn out,--although there was
plenty of room,--still the hind runners injured the boy’s left leg so
much that amputation was necessary. The man had to pay heavy damages
for the injuries he had inflicted.”[82]
“It seems hard that one should have to pay for a parent’s negligence in
allowing such infants to wander about by themselves,” said Mrs. L.
“Occasionally the tables are turned. Mr. Roper was once driving in
his sleigh at a gentle trot (there were some of his family with him
and strange to say they were not talking), when at the foot of a hill
they ran over a baby two years old that was sitting in the snow in the
middle of the road all by himself. The jury gave the child a verdict of
$500, but the court would not hear of such a thing, considering that
the parents had been guilty of criminal negligence in suffering the
child to be in such a place.”[83]
“I guess that court was composed of old bachelors,” exclaimed my wife
in indignant accents.
“Well, my dear, even married judges, and those who have been blessed
with quivers full of those sharp things, children, have declared the
rule to be that, if the plaintiff’s negligence in any way concurred
in causing the damage, he cannot recover unless he could not, by the
exercise of ordinary care, have avoided the injury, or the defendant
has been guilty of gross negligence, or intentionally did the
wrong.”[84]
A little feminine chit-chat now occupied our attention; criticism
concerning the friends we had been visiting, their foibles and
weaknesses; speculations as to the incomes of the husbands, the age of
the wives, and such like remarks which absorb such a large proportion
of the atmospheric air that is converted into language.
In passing a man, he would not turn out, and I grazed his horses’ legs,
causing the animals to plunge and kick so as to knock the cutter about
considerably; but seeing that the fellow was drunk and not able to
drive properly, I was not at all alarmed about any damage I might have
done, for I knew that I could not be held responsible.[85]
The sun had gone to rest; the stars were coming out one by one, dotting
the vault of heaven as with sparkling gems. We heard in the distance
the ringing laughter and the tinkling bells of a merry driving party.
My wife exclaimed:--
“Hear the sledges with the bells,
Silver bells!
What a world of merriment their melody foretells!
How they tinkle, tinkle, tinkle,
In the icy air of night!
While the stars that oversprinkle
All the heavens, seem to twinkle
With a crystalline delight:
Keeping time, time, time,
In a sort of Runic rhyme,
To the tintinnabulation that so musically wells
From the bells, bells, bells, bells,
Bells, bells, bells--
From the jingling and the tinkling of the bells.”
We were at this time driving down in a ditch for the sake of the snow
(the road itself being well-nigh bare), and just as my wife concluded
her poetic quotation over we turned. Luckily fortune again favored us,
for my deviating from the right path without sufficient cause would
have prevented my recovering for any damage we might have suffered.[86]
One voluntarily encountering perils in the dark does so at his own
risk.[87]
My wife impatiently suggested that she had better take the reins. I
told her that she could reign at home, but that if she was driving and
we really met with an accident, twelve jurymen would have to inquire
into her capacity and the horses’ character,[88] in considering whether
ordinary care had been exercised, and the less said on the first
subject the better.
“For goodness’ sake, then, tell me what I can get if I am hurt on these
abominable roads,” she pettishly asked.
“Well,” I said, clearing my throat for a speech, “if the town is
to blame for the state of the road, it is liable for the direct and
immediate losses occasioned by the accident.[89] In some cases _I_
could recover for the loss of your services and the expenses of your
sickness;[90] although in Maine and Connecticut it has been decided
otherwise.[91] If I myself were injured, I could get recouped for my
loss of time and medical expenses.[92] Where the exertions of the
plaintiff in endeavoring to rescue his horses, which had broken through
a bridge, his exposure to the elements and his agitation--all the
direct result of the defect in the bridge--produced epilepsy and made
the man a wreck in body and mind (the doctors said the disease usually
terminated in paralysis and mental imbecility), the jury gave the man
$500 in compensation, and the judges thought it was none too much.”[93]
“I should think not. It must be a poor body and mind to be worth no
more than that.”
“Where,” I continued, “Mrs. Toms and her eight-year old boy were
crossing a bridge in their buggy, the horse shied at some new planks on
the bridge, backed to the edge and the hind wheels over a bank, Mrs.
Toms tumbled out into the water some fourteen feet below, the jury
considered that she had been driving in a proper manner and that the
road ought to have had guards along the embankment. The court agreed
with them, and held the township liable to make good her wounds and
bruises; the want of railings was deemed the proximate cause of the
injury, and not the horse becoming frightened or unmanageable.[94] A
road which passes over a bank or bridge, or along a precipice, should
always be properly guarded.[95] It seems that in the States of Vermont
and Massachusetts corporations will be held liable for injuries
(caused by defective ways) which are primarily imputable to pure
accident (that is to an unexpected occurrence or event for which no
one is responsible), if the accident happened without the fault of the
injured one, and is such that common prudence could not have foreseen
or guarded against, and if without the defect it would not have
occurred.[96] Where, for instance, a runaway was crowded against the
plaintiff’s nag, owing to an obstruction in the road, the town was held
liable; for streets should be so made as to be reasonably safe when
such accidents, as may reasonably be expected occasionally to happen
in the best regulated places, do occur.[97] And so when a carriage ran
away with the people in it by itself and over an embankment.[98] And
all roads ought to be wide enough to allow of the ordinary shyings
and frights of horses with safety, for shying is one of the natural
habits of the animal,[99] and it must be in such repair that even
skittish creatures may be driven without any risk of danger from its
condition.[100] The road, however, need not afford a perfectly clear
track to a runaway horse.”[101]
“I wish that horse would stop switching his tail about,” remarked my
wife.
“A very sensible desire on your part; for it has been decided in
Massachusetts that the liability of a town for accidents arising from
defects in a highway is removed if the defect could have been avoided
had not the horse by throwing its tail over the reins freed itself from
the driver’s control and so knocked the carriage against the obstacles
complained of.”[102]
“It is a pity that judges have not something better to do than consider
the shakings of a horse’s tail,” said my wife, who seemed to be growing
cross.
“’Tis a pity that they decided as they did, for one can scarcely
believe that the tossing of tails over the reins is one of those
extremely unlikely and abnormal acts which are considered acts of God,
and which ordinary sagacity cannot foresee; it seems rather an ordinary
incident of travel and so a contingency against which the road-maker
should provide.[103] However, to continue the subject on which I was
dilating, although a traveller is bound to have his carriage and
harness in good road-worthy condition, or else bear quietly the pains
and penalties,[104] still he need not always see that his carriage is
perfect, his team of the most manageable character and in the best
training, ere he goes out for a turn. If he uses ordinary care and
prudence and an evil befalls him from the state of the road (coupled
with some accidental cause), he can recover for his damages.[105] In
Maine, however, the judges seem inclined to take a different view and
absolve the town from liability where the accident would not have
happened but for something going wrong with the horse or carriage; they
say that if they are satisfied that an accident happened from a defect
in the road and a defect in the harness making it unsafe,--although
the driver knew not of it and thought all was right,--the injured one
cannot sustain an action against the town.[106] Where one Moulton”--
“Do you mean Beecher’s quondam friend?” asked my wife.
“Oh, no; it was before the days of Mrs. Tilton’s notoriety. This
Moulton was driving on a bridge, and his horse, seeing another
plunge into the water, became unmanageable and threw the wagon into
the stream, there being no railing; the town had not to pay the
damages.[107] And where a sleigh-bolt broke, and then the horse bolted
and injured itself against a heap of stones in the road, the judges
considered that the driver had not exercised due care, and therefore
would have to settle the farrier’s little bill himself.[108] Similarly,
where a horse being instigated thereto by some evil spirit, refused to
hearken to the reins and so went over an unprotected bank, whereon,
perchance, the wild thyme grew, the poor owner of the nag was requested
to show that the accident would equally have occurred if the horse had
not been so uncontrollable, before he could get anything out of the
town.”[109]
A gentle snore from the partner of my joys and sorrows told me that
I was wasting my eloquence and learning on the midnight air, so I
forbore, and shortly after we reached our home safe and sound.
FOOTNOTES:
[65] Abbott _v._ Wolcott, 38 Vt. 666.
[66] U. S. _v._ Hart, Peters C. C. 390.
[67] Kennedy _v._ Way, 3 Law Reporter (N. S.), 184, Brightley (Pa.),
186.
[68] Moody _v._ Osgood, 60 Barb. 644.
[69] Davies _v._ Mann, 10 M. & W. 545.
[70] Angell on Highways, § 263.
[71] Hull _v._ Richmond, 2 Wood. & M. 343.
[72] Mathews _v._ Winooski Turnpike Co., 24 Vt. 480.
[73] Loker _v._ Brookline, 13 Pick. 346; Holman _v._ Townsend, 13 Met.
297.
[74] City of Providence _v._ Clapp, 17 How. 168.
[75] Wilson, J. Caswell _v._ St. Mary’s, etc., Road Co., 28 Q. B.
(Ont.), 247.
[76] Brailey _v._ Southborough, 6 Cush. 141; Willard _v._ Cambridge, 3
Allen, 574. In Massachusetts one cannot recover damages for not being
able to use the road, though he may for injuries received while using
it.
[77] Woolrych on Ways (2d ed.), 78; Campbell _v._ Race. 7 Cush. 408.
[78] Taylor _v._ Whitehead, 2 Dougl. 749; Carrick _v._ Johnston, 26 Q.
B. (Ont.), 65.
[79] Hubert _v._ Groves, 1 Esp. 148; Griffin _v._ Sanbornton, 44 N. H.
246.
[80] Greasley _v._ Codling, 2 Bing. 263.
[81] Tisdale _v._ Norton. 8 Met. 388.
[82] Robinson _v._ Cone, 3 Law Reporter (N. S.), 444; 22 Vt. 213.
[83] Hartfield _v._ Roper, 21 Wend. 615; but see _post_.
[84] Barnes _v._ Cole, 21 Wend. 188; Bridge _v._ Grand Junction Rw., 3
M. & W. 246.
[85] Cassedy _v._ Stockbridge, 21 Vt. 391.
[86] Rice _v._ Montpelier, 19 Vt. 470; Tisdale _v._ Norton, 8 Met. 388.
[87] Mt. Vernon _v._ Dusouchett, 2 Cart. 586.
[88] Cobb _v._ Standish, 14 Me. 198.
[89] Jenks _v._ Wilbraham, 11 Gray, 142.
[90] Hunt _v._ Winfield, 36 Wis. 154; Woodman _v._ Nottingham, 49 N. H.
387.
[91] Reed _v._ Belfast, 20 Me. 246; Chidsey _v._ Canton, 17 Conn. 475.
[92] Sandford _v._ Augusta, 32 Me. 536.
[93] Jaquish _v._ Ithaca, 36 Wis. 111.
[94] Toms _v._ Whitby, 35 Q. B. (Ont.) 195; _S. C._, In Appeal, 37 Q.
B. 100.
[95] Bliss _v._ Deerfield, 13 Pick. 102, Davis _v._ Hill, 41 N. H. 329.
[96] Palmer _v._ Andover, 2 Cush. 601.
[97] Kelsey _v._ Glover, 15 Vt. 708; Swift _v._ Newbury, 36 Vt. 355.
[98] Palmer _v._ Andover, 2 Cush. 601.
[99] Houfe _v._ Fulton, 29 Wis. 296; Stone _v._ Hubbardston, 100 Mass.
49; Kelley _v._ Fond du Lac, 31 Wis. 180.
[100] Lower Macungie Tp. _v._ Merkhoffer, 71 Penn. St. 277.
[101] Wharton on Neg. § 105.
[102] Fogg _v._ Nahant, 98 Mass. 578; _S. P._, 106 Mass. 278.
[103] Wharton, § 106.
[104] Welsh _v._ Lawrence, 2 Chitty, 262; Smith _v._ Smith, 2 Pick. 621.
[105] Hunt _v._ Pownal, 9 Vt. 411.
[106] Moore _v._ Abbot, 32 Me. 46.
[107] Moulton _v._ Sanford, 51 Me. 127; Horton _v._ Taunton, 97 Mass
266, n.
[108] Davis _v._ Dudley, 4 Allen, 557.
[109] Titus _v._ Northbridge, 97 Mass. 258.