EVERYTHING MUST BE SOUND, AND EVERY ONE CAREFUL.
The Reason why.--Literature of Stages.--Off on Wheels.--Soundness
warranted.--Seats taken.--Fare paid, either First or Last.--Damage to
Trunks.--Involuntary Aeronautics.--Passengers injured.--Negligence
of Passengers, or of Drivers.--Carriers liable for Smallest Fault;
Not Insurers.--Genuine Accidents--Horses left standing.--Driving and
upsetting a Friend.--Non-repair of Roads.--Care required.--Tennysonian
Stanzas.--Pleasures of the Weed and Rural Life.
The long vacation was rapidly approaching,--that season when the heat
having lengthened out the days (as it does everything else), the
members of the legal profession abandon rejoinders and demurrers, cast
briefs and records, with physic, to the dogs, and, satisfied with bills
and conveyances, wander off in search of change in cooling streams
and pastures green. In my modest household was eagerly discussed the
question, “Whither shall we flee?”
My wife’s step-mother’s brother’s wife’s mother’s aunt, had recently
met with a horrible and excruciating death upon a railway car, so
my wife had solemnly vowed never again to commit herself to the
safe-keeping of a railway company; this, therefore, shut us off from
the usual means of exit from our inland city, and yet as “_Exeunt
omnes_,” was the cry, we could not surely stay at home; if we did, we
would have to lie low in the kitchen and back premises, that we might
appear to others to be away. At last I found that there was still a
tumble-down old stage-coach making, with the assistance of two skeleton
horses, tri-weekly trips to and from the little Village of Ayr, where
we could catch a steamboat and thus do in proper style the Lakes and
the St. Lawrence, the Ottawa and the far-famed Saguenay.
When this discovery of mine was divulged at home, great was the
rejoicing, loud pæans rose, and for days I was deluged with quotations
from all the novelists, from old Fielding to poor Dickens anent stages,
and coaches, and stage-coaches. I was told of all the heroes of
romance, from Tom Brown back to Tom Jones, who had journeyed thereby;
I was confidently informed, on the authority of Mr. William Makepeace
Thackeray, that in every coach there is sure to be found an asthmatic
old gentleman, a fat man, swelling preternaturally with great coats and
snoring indecently, and a lone widow who insists upon all the windows
being shut, and fills the vehicle with the fumes of rum which she sucks
perpetually from a black bottle. Mr. Thomas Hughes was quoted to prove
how much more punctual stages are than railway trains, for he tells of
one that went “ten miles an hour, including stoppages, and so punctual
that all the road set their watches by her.” The old joke concerning
the young man who, on being asked if he had ever been through Euclid,
replied, “Yes, I have driven through it on a stage-coach,” was given
to me once again as if uttered for the first time; and I was informed
that an Indian squaw, the first time she saw a coach pass at a spanking
trot, and watched the wheels revolving rapidly, clapped her hands in
delight, exclaiming, “Run, little one, run! or the big one will catch
you!” The subject gradually became monotonous.
At length, however, the day of our departure dawned.
When the coach drove up to the door, at sight of the dusty tumble-down
conveyance, my wife--true to her woman’s nature--was half inclined to
decline to trust her precious self therein, but as I had paid our fares
when booking our places--the driver having asked for the money, as he
had a perfect right to do[139]--and as I assured her every stage-coach
proprietor warrants that his stage is sufficiently secure to perform
the journey proposed, and is bound to examine his vehicles every day,
and if he does not is responsible for accidents,[140] she consented to
start; although I could see from her expression of countenance that
the ideal coach which she had been fondly cherishing was very different
to the one into which we entered. Our luggage was mounted on top, and
soon we were rumbling down the street to pick up other passengers, as
we were numbers one and two. A sudden stop to mend some broken harness
called forth an exclamation of disgust from the fair being beside me,
and a remark from myself to the effect that she need not be anxious, as
the owner was responsible that all the equipments of the conveyance,
drivers, horses, harness, were fit and suitable.[141]
In a few minutes we drew up at the door of a large mansion from which
quickly emerged four old maids; they drew back in horror when they saw
my pantaloons, one exclaiming:--
“Driver, we engaged the whole inside of the coach, and there’s a man in
it.”
“Yes, mum,” said John, “but one of you can sit outside along of me for
a bit; the gentleman is not going far.”
“You have no right to separate us[142] or let other persons get
inside,” replied number one, waxing wrathy.
“No, indeed,” chorused the others.
“Ladies,” I said, “I will be most happy to give up my place and ride
outside; the driver should have told me that the inside had been
engaged, and then my wife and myself would have waited until some
other day.”
“Well,” quoth the driver, “the ladies had not paid for the seats, and
we were not bound to keep them for them.”[143]
With withering sarcasm the eldest maid replied, “Here is your money,
sir.”
If a look could have annihilated a coachee, never again would that man
have mounted a box, or handled the ribbons, after the Medusa glance he
then received. I emerged from the inside, into which the ladies stowed
themselves and several parcels, packages and bandboxes, while several
boxes of larger growth, containing their staple goods, were hoisted up
aloft. After picking up a man we rattled off down the street into the
open country.
The last comer had not as yet paid his fare, and at the first
stopping-place he was asked for it; but he demurred, saying that as he
had not prepaid the fare, it was not due until the whole journey was
completed.
“You will have to leave the stage then,” said the collector.
“I’ll do nothing of the kind,” returned the other, “and if you force me
off it will be at your peril, for your driver permitting me to commence
the journey without prepayment is an acquiescence in my riding to the
end before paying up, so you may _howl and_ swear as much as you
like.”[144]
At this the man of fares subsided, and we resumed our slow jog-trot
without any diminution of numbers. The jolting of our vehicle soon
caused one of the trunks belonging to one or other of the four sisters
to gape and yawn in a manner which exposed the contents thereof in
a way which would doubtless have caused the fair owner to blush to
the roots of her hair (if it was her own she wore), and it appearing
probable that articles of feminine apparel would soon be scattering
themselves over the dusty road, and knowing that the box not having
been securely and properly packed and fastened, the carrier would not
be liable for any loss or damage happening to it,[145] I persuaded the
driver to stop until the mischief could be remedied; for such an injury
would vex a saint, much more a shrew of her impatient humor. With much
grumbling he consented, and all was soon made taut and right.
To make up for lost time, we now rushed ahead at a terrific pace,
considering the clumsy, cumbrous, jingling, jerking concern in which we
were travelling. The ladies within (who were crushing their bonnets,
elbowing each other under the fifth rib, jumping up and bouncing into
one another’s laps with every plunge of the coach), cried one and
all:--
“Oh, do be careful--don’t go so fast.” And I, in admonitory tones, told
the driver that we would hold him liable for any injuries that might
happen to either ourselves or our baggage, in consequence of his racing
in such an improper manner.[146]
“All right,” said he, “I’m responsible, and I am master too, here; so
I’ll do just what I like.”
Scarce had he uttered these words when we drew near a large spreading
tree, standing in the middle of the road. At a glance I saw that the
coach must pass under the outstretched branches, and that they were
so low that they would assuredly sweep the top of the stage clear of
luggage and whatsoever else was thereupon, and unfortunately I myself
was thereupon. I had no choice left but to jump off or remain in
certain peril; mindful of my early performances in the gymnasium, of
the two threatening evils I chose what appeared the lesser, and as the
foremost twigs took off the hat of the driver (who was considerably
below where I was perched), I sprang to the ground, and, as if in rage
at my escape, the giant forest tree hurled two or three trunks after
me; one came with a thud upon my foot and bruised it rather badly.
Of course the ladies screamed loudly as they saw me flying in a
graceful parabolic curve through the azure air. The driver as rapidly
as possible pulled up his old horses. Some loud conversation took
place between myself and the man, interspersed with ejaculations more
vigorous than religious, he contending that I had only myself to thank
for my injuries, as if I had bent low enough I would not have been
touched by the tree.
“All very well,” I replied, “if I had been the size of the little
husband no bigger than a thumb what was put into a quart pot and made
to beat a drum, but Mr. Thomas Thumb himself, if he had been on top,
could not have escaped from that tree. However, your master is liable
to me for the injuries I have received.”[147]
“No, he isn’t,” surlily replied the Jehu, “because I say if you had
staid quiet you would not have been hurt.”
“Even if that were so, it would make no difference, as I entertained
a well-founded apprehension of being decapitated by that ugly
branch.”[148]
I argued not, however, with the man, but limping back to the coach,
remounted to my elevated seat, accompanied by the prayers and
entreaties of my wife, not to blight her young life by exposing myself
to any more such frightful risks outside, but to come within where she
was sure there was plenty of room; but I preferred the fresh air and
fine view aloft to the close musty smell and narrow field of vision
down below.
When again under way, my fellow-passenger, who by sitting on the box
with the driver had avoided the collision, began to tell me of his
grandmother, one Mistress Elizabeth Dudley, who on one occasion was
an outside passenger to the Cross Keys, Chelsea. When in front of the
gateway leading to the stable-yard of that inn, the coachman requested
the travellers to alight, as the passage into the yard was awkward. As
Mrs. Dudley did not wish to soil her pumps in the dirty road, she said
she would rather be driven into the yard. Coachee told her to stoop,
and then lashed up his horses. The coach was 8 feet 9 in. high, and
the archway only 9 feet 9 in., and Betsy, not being able to squeeze
herself into the interstice of twelve inches, received a severe injury
by having her back and shoulders knocked against the archway; she
recovered, however, with £100 damages.[149]
I said: “Of course, to excuse the driver from responsibility, it must
always be shown that the plaintiff was guilty of negligence which
contributed directly to the injury.[150] I remember one case where a
man was asked by the driver to ride inside a coach, and told that if
he remained outside it would be at his own risk; he treated both the
request and the hint with silent contempt, and being injured by the
overturning of the carriage, sued the owners and got damages, as it
appeared that the accident occurred from the negligence of the driver,
and that the position of the obstreperous man in no way contributed to
it.”[151]
“It is clearly settled,” returned my new made acquaintance, “that
a driver, or his master, although he does not warrant the absolute
safety of his passengers is, nevertheless, answerable for the smallest
negligence;[152] and that the proprietor is also responsible for
all defects in the coach, even though they be out of sight and not
discoverable upon an ordinary examination, as a _sharp_ fellow once
proved.”[153]
“An American, however, _in gall_ and bitterness was told by a court,
that carriers, although bound to use the utmost care and diligence
to prevent those injuries which human care and foresight can guard
against, still are not liable for injuries happening through hidden
defects which could not from the most careful and thorough examination
be discovered.”[154]
“Yes,” interrupted my friend, “but in the State of Illinois, a
_Potter_, who owned a stagecoach, was held liable for an injury to a
passenger, which resulted from the breaking of an axle-tree, through
the effect of frost.”[155]
“Long ago the courts in England held that a man established a _primâ
facie_ case by proving his taking passage in a coach, his coming to
grief while in it, and the injury he sustained; and then that the
proprietor must show, if he could, that his vehicle was as good as a
vehicle could be, and that the driver was as skillful a handler of the
reins as could be found.”[156]
“Yes, as Best, C. J., once said, a coachman must have competent skill
and must use that skill with discretion; he must be well acquainted
with the road he undertakes to drive; he must be provided with steady
horses, a coach and harness of sufficient strength and properly made,
and also with lights by night. If there be the least failure in any
one of these things, the duty of the proprietor is not fulfilled, and
he is answerable for any injury or damage that happens.[157] He also
is so unless the driver exercised a sound discretion at the time of
the accident. If he could have exercised a sounder judgment or better
discretion than he did, as by driving slower or faster, or by telling
his passengers to dismount at a dangerous or difficult place, the owner
must make compensation.”[158]
“Fortunately, however, for the pockets of carriers, they are not
considered as actual insurers of the safety of those who intrust their
precious bodies to them. Accidents will happen in the best regulated
concerns, and it appears to be settled that when they do occur where
there is _no_ negligence or default, the law will protect carriers from
the demands of injured ones.”[159]
“Oh, yes, that is a well-established doctrine, and many cases might be
quoted to sustain it. Where, for instance, on a dark night the lights
were obscured by a fog, or the coachman without any fault of his gets
off the road.”[160]
“And also,” I chimed in, “where extreme cold prevented the driver doing
his duty;[161] and where the reflection of the sun upon falling water
frightened the horses so that they ran away and knocked things into
pie;[162] and where an axle-tree that was sound and perfect snapped
asunder.[163] And where a sleigh or a carriage upsets through mere
accident and without culpable neglect on the part of the driver--as
where he had been driving along a track in a ditch to take advantage of
the small modicum of snow remaining and in turning on to the road again
got into a hidden hole and upset--and the horses escape from the hands
of the Jehu, and run away and do mischief to the person or property
of other people; though undoubtedly the owner would be liable where
there was clear negligence on the part of himself or driver which led
to the carriage being overturned and the escape of his horses.[164] If
a man has carelessly left his horses standing on the highway, while
he is drinking or loafing in a tavern, and the horses run away and
commit an injury, the right to recover damages is clear.[165] Even if a
third party causes the stampede of the horses which are left standing
alone, the owner will be liable for all damage done;[166] and it will
be inferred that a horse was negligently fastened if it gets loose and
runs away.[167] But where a pony and chaise were left standing in the
street without any person to take care of them, and afterwards the pony
was seen running away with the chaise, and those who saw the runaway
did not know the cause of the starting. The owner of the turn-out,
however, proved that his wife was holding the nag by the bridle, when
a Punch and Judy show coming up frightened the pony, which breaking
from the lady ran off, and Lord Denman in charging the jury, said: ‘If
the facts are true as suggested by the defense, I very much think you
will be disposed to consider this an inevitable accident; one which the
defendants could not prevent.’”[168]
“Of course if one gentleman when out driving offers another a seat
in his carriage, he is not liable at all for an accident afterwards
occurring; unless, indeed, it were of a gross description; and,
as nothing is more usual than for accidents to happen in driving,
without any want of care on the part of the driver, no _primâ facie_
presumption of negligence is raised when an accident does occur, so the
injured one must give affirmative evidence of gross negligence on the
part of his obliging friend.”
“Oh, yes; that is well settled by a case where the Privy Council
reversed the decision of the Supreme Court of Victoria. A gentleman
was conveying the plaintiff, who was a decorator and gardener in his
employ, to perform for him certain work. The defendant, the gentleman,
drove, and while on the road the king-bolt broke, the horses bolted,
the carriage was overturned, the plaintiff thrown out and stunned; and
when the man came to himself the horses and forewheels of the buggy had
vanished. There being no evidence of gross negligence, the decorator
had to bear his injuries and bruises unavenged.[169] One cannot fairly
be expected to examine very strictly and carefully the state of the
bolts and fastenings of his carriage every time he goes out with
it.”[170]
“By the way,” said my companion, “your own right to recover is
perfectly clear, for I am sure that I have seen in some place or other
that where a woman was jolted off a stage and had her leg fractured
by some luggage that was thrown on it, she was successful in a suit
against the owners of the vehicle.”[171]
“Thanks for the information,” I replied, “I did not know that there was
a case so exactly on all fours with my own.”
“A little research nowadays will enable one to find a decision on
almost every possible point the mind of man can conceive, so great is
the number of the reports now accumulating with fearful rapidity upon
the shelves of law libraries. Ah me! the speed with which the yearly
accretions of reports fill up every library, not of Brobdignagian
proportions, is an appalling phenomenon. It makes me sigh to consider
the lot of our grandchildren who may chance to commence the study of
law! I”--
A sudden jerk and bump, caused by a wheel hitting against a stump in
the middle of the road, stopped the sentence and set us talking about
the liability of road companies and municipalities as to keeping the
roads in a proper, safe, and convenient condition.
“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 ‘6_s._ 8_d._’”
“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.’”
“You might add the concluding lines of that noble poem,” I said.
“‘When can their glory fade?
Oh the huge charge they made!
All the world wondered.
Pay them the charge they made!
Pay them the bill they made!
Noble attorneys.’”
“Good. Very good. Do you smoke.”
And he added to the effect of his question by handing me a well filled
case of choice cheroots. Soon we were both lazily puffing at our
cigars, and dreamily enjoying ourselves as we drove along past woodland
and meadow, up hill and down, over sparkling, bubbling streamlets,
beside fields of waving grain.
The day was charming. The heat of the July sun was tempered by a
cooling breeze which blew softly upon us as we journeyed. The dust
had been laid to rest by the sprinkling of an early shower; the birds
carolled gayly amid their leafy bowers; here and there the squirrel
peeped forth from his hiding-place and chattered at us as we passed, or
raced ahead along the zig-zag fence; at one moment fluttered by a
Butterfly ranging on his yellow wings.
A primrose gone alive with joy, to dance with living things;
then came large white ones “which looked as if the May-flower had
caught life, and palpitated forth upon the winds.”
And my friend dreamily muttered, “Would that I were an insect! Fancy
the fun of tucking one’s self up for a night in the leaves of a rose,
and being rocked to sleep by the gentle sighs of summer air; and having
nothing to do when you awake but to wash yourself in a dewdrop, and
then eat your bedclothes.”
Ever and anon we heard the truly rural sounds of the whetstone against
the scythe, and the lowing of the kine, or the plaintive cry of some
wandering lamb. All these arcadian sights and sounds acted as a gentle
lullaby upon our senses already soothed by nicotine, and we slept.
FOOTNOTES:
[139] Chitty on Contracts, 292.
[140] Bremner _v._ Williams, 1 C. & P. 414; Sharp _v._ Grey, 9 Bing.
457.
[141] Crofts _v._ Waterhouse, 3 Bing. 321; Jones _v._ Boyce, 1 Stark.
493; Stokes _v._ Saltonstall, 13 Peters, 181; Ingalls _v._ Bills, 9
Met. 1.
[142] Long _v._ Horne, 1 C. & P. 611.
[143] Ker _v._ Mountain, 1 Esp. 27.
[144] Howland _v._ Brig Lavinia, 1 Peters Adm. 126; Detouches _v._
Peck, 9 Johnson, 210.
[145] Walker _v._ Jackson, 10 M. & W. 161.
[146] Mayor _v._ Humphries, 1 C. & P. 251; Gough _v._ Bryan, 5 Dowl.
765.
[147] Ingalls _v._ Bills, 9 Met. 1; Stokes _v._ Saltonstall, 13 Pet.
(U. S.) 181; Frink _v._ Potter, 17 Ill. 406.
[148] Jones _v._ Boyce, 1 Stark. 493.
[149] Dudley _v._ Smith, 1 Camp. 167.
[150] Colegrove _v._ N. Y. & Harlem, etc., R. R. Co., 6 Duer, 382.
[151] Keith _v._ Pinkham, 43 Maine, 501; Lackawana & B. R. R. Co. _v._
Chenewirth, 52 Penn. St. 382.
[152] Harris _v._ Costar, 1 C. & P. 636; Christie _v._ Griggs, 2 Camp.
79.
[153] Sharp _v._ Grey, 9 Bing. 457.
[154] Ingalls _v._ Bills, 9 Met. 1.
[155] Frink _v._ Potter, 17 Ill. 406.
[156] Christie _v._ Griggs, 2 Camp. 79.
[157] Crofts _v._ Waterhouse, 3 Bing. 319; Farish _v._ Reigle, 11
Gratt. 697.
[158] Stanton _v._ Weller, Hil. Term, 6 Vict. U. C.
[159] Aston _v._ Heaven, 2 Esp. 533.
[160] Crofts _v._ Waterhouse, 3 Bing. 321.
[161] Stokes _v._ Saltonstall, 13 Peters, 181.
[162] Aston _v._ Heaven, _supra_.
[163] Parker _v._ Flagg, 26 Me. 181; Add. on Contracts, 495.
[164] Robinson _v._ Bletcher, 15 U. C. Q. B. Rep. 160.
[165] Ibid.
[166] Illidge _v._ Goodwin, 5 C. & P. 190; Park _v._ O’Brien, 23 Conn.
339.
[167] Strup _v._ Edens, 22 Wis. 432.
[168] Goodman _v._ Taylor, 5 C. & P. 410; Kennedy _v._ Way, Brightley
(Pa.), 186.
[169] Moffatt _v._ Bateman, L. R., 3 P. C. App. 115.
[170] Ibid.
[171] Curtis _v._ Drinkwater, 2 B. & Ad. 169.
[172] Wallace _v._ New York, 2 Hilton, 440; Phillips _v._ Veazie, 40
Me. 96.
[173] Merrill _v._ Hampden, 26 Me. 236; Davis _v._ Bangor, 42 Me. 522.
[174] Cobb _v._ Standish, 14 Me. 198.
[175] Littlefield _v._ Biddeford, 29 Me. 310.
[176] Talmadge _v._ Zanesville & M. Road Co., 11 Ohio, 197.
[177] Chappel _v._ Oregon, 36 Wis. 145.
[178] Cremer _v._ Portland, 36 Wis. 92.
[179] Butterfield _v._ Forrester, 11 East, 60.