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”--

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.”

“They are not necessarily an indictable nuisance; and as the law

allows them to erect such a sign, they would not be liable for any

accident arising from the posts obstructing part of the road, at least

if they were placed in a reasonably proper manner with a due regard to

all the surrounding circumstances.[195] How the steam came out of the

engine! It is a wonder that the horses were not more frightened!” I

added.

“Length of days, hard work, and shortness of commons have doubtless

curbed their spirits. I remember on one occasion some railway employees

were endeavoring to put an engine on the track near a crossing, when

my friend Mrs. Stott and another lady drove up in a wagon; they asked

if they might cross. One man said ‘Yes,’ and then laughingly winked

at the others. Mrs. S. got out and led the horse, but before they had

passed over steam was let off through the sides of the locomotive; the

horse got frightened, jumped upon my friend, knocked her down, ran over

her and away. The court held the railway liable for this injury; the

company tried to avoid the verdict by saying that the damages arose

from the unnecessary and wanton act of their servants; but the judges

inclined to the opinion that even if the act had been unnecessary and

wanton, reckless and improper, still as it was done in the course of

the servants’ employment, and for the purpose of promoting it, the

company must bear all the responsibility.[196] Of course, however,

companies are not liable for accidents caused by horses getting

frightened at the smoke, steam, or noise of their trains, when their

servants do nothing amiss.”[197]

Presently we came to a broad river unspanned by any bridge; we had to

cross, therefore, in an old-fashioned ferry. All dismounted. I noticed

that the little wharf to which the scow was attached was much the worse

for wear, but the nymphs and naiads fell in love with none of us, so no

one broke through, fortunately for the ferryman, for he would have been

liable for any accident.[198]

“Ha!” said my friend, as the stage gave a great bump in lighting on the

boat. “My Christopher Columbus, you ought to have your flats so that

all drivers and carriages may embark with ease; and that jolt rattled

the ivories in Jehu’s jaw.”[199]

“Shut up yours, and shell out,” was the laconic response.

“How deeply seated is habit,” spake Mr. Smith. “The bee makes honey

just as sweet now as when Samson stole it from the lion; and this

pitiless navigator must be paid his fare before we start,[200] just as

old Charon had to receive his obolus ere he would ferry his fleshless

passengers across the gloomy Styx.”

“You’re too fleshy to lean up agin those thair sticks, unless you want

to take a header backwards,” quoth the ferryman.

“Oh!” exclaimed Smith, starting inwards as the rail started outwards,

“you ought--you should--you are bound by law to have your boat,

and your slips, and your landing stages, and everything else, safe

and secure, not only for passengers, but also for their horses and

carriages, luggage and merchandise;[201] and you are liable for any

damage happening to a vehicle, or the horses, as soon as they are on

board, although the driver still keeps charge.”[202]

The latter part of the remark seemed called forth by the coach having

begun to slip backwards towards the water.

“That thair is open to argyment,” said the boatman. “I guess I knows

my bizness. Some old judges say that a ferryman is not liable unless

the animals be put in his charge;[203] nor where the driver don’t take

care.[204] Nor yet where the critters are so spry that they keant be

trusted on a boat,[205] which I calkerlate them thair nags aint.”

“Down in Mississippi, a ferryman had to pay for two stage-horses that

jumped overboard, and the court said that as soon as the property is

put on the boat, the boatman has it _primâ facie_ in his charge, and

is responsible for it, unless the owner consents to take exclusive

charge.”[206]

“I guess I wish we poor chaps could make a prime and fashious charge. I

have to work this old machine mornin’, noon, and night, barring when it

is too windy, or I have gone to roost, as I live away over there.”[207]

Safely we passed o’er the flood, and safely disembarked and reseated

ourselves in the venerable trap, which with creaks and groans--as

though rheumatic pains shot through every bolt and bar--ascended the

bank.

Just then we passed a heavy wagon. It was on the wrong side of the

road, and we narrowly escaped collision. I sung out to the farmer

driving it:--

“If you want to drive on the wrong side, old fellow, you should take

more care and keep a better lookout,[208] for if an accident had

happened, as we had not ample room to avoid your wheels, you would have

been liable for the injury, being on the wrong side of the road.”[209]

“Fine day, sir,” was the only response that came, and our driver, with

a grin, told me that the old man was as deaf as a door-nail.

My companion turned and said to me, “I have often wondered why the

rules of the road should be so different in England from what they are

in America. In the old country the three laws are: First, on meeting,

each party shall bear to the left; second, in passing, the passer shall

do so on the right hand; and, third, in crossing, the driver shall

bear to the left and pass behind the other carriage.[210] In America,

the first rule is the reverse, that is, each party must keep to the

right;[211] but in passing, the foremost person bears to the left, and

the other passes on the off side, and in crossing, the driver bears to

the left hand and passes behind the other carriage--at least so says

Story.”[212]

“’Tis singular that there should be the difference,” I remarked.

“But that is not the only point of diversity. In England these rules

apply as well to equestrians as to carriages; while in the United

States a traveller on horseback when meeting another equestrian, or a

carriage, may exercise his own notions of prudence, and turn to the

right or to the left.[213] Of course common consent and immemorial

usage require that a horseman should yield the road to a wagon or other

vehicle.[214] If, however, he is mulish and will not turn out when

he might safely do so, and his steed is injured by a collision, he

is remediless.[215] Again, when one is ahead in America he need not,

unless he has some milk of human nature in his veins, turn out at all

to let a man behind pass, if there is room enough on either side.”

“But if there is no room, what then?” I queried.

“Why, then, if it is practicable, the front one must give an equal

portion of the road to his fellow biped behind; and if it is not

practicable, number two must follow in Job’s steps and exercise the

Christian grace of patience, and wait until a more favorable spot is

reached. If number one will not turn out when he can, he is answerable

at law for it. His pursuer, however, must not take the matter into his

own hands and attempt to force his way past.”[216]

“It is,” I said, “fortunate, however, that these laws of the road are

not inflexible like those of the Medes and Persians of antique days,

but may on occasions be departed from.”[217]

“Yes; if there is no other carriage in the way, or if the road is

broad enough, one may go on whatever part he fancies:[218] and in the

crowded streets of a city situations and circumstances may frequently

arise, where a deviation will not only be justifiable, but absolutely

necessary.[219] And, of course, one may pass on the left side of a

road, or across it, in order to stop on that side;[220] and conveyances

stationary may be on either side.”[221]

“I believe that if there was sufficient room for a defendant to pass

without inconvenience, it will not assist him when sued to say that the

plaintiff was on the wrong side.[222] Mr. Angell tells us that if, a

man, not on his own side, suddenly meets another and an injury results,

he who is voluntarily in the wrong must answer for all damages, unless

the other individual could have avoided the accident.[223] And the fact

that the one on the wrong side is not able to turn out will not avail

him as a defence.”[224]

“Of course not. The injured one has not only to show that the injurer

was on the wrong side, but also that he himself exercised ordinary

precaution to avoid collision.[225] If my share of the road is trenched

upon I cannot recklessly run into the trespasser, and then turn round

and sue for injury arising from my devil-may-care conduct. I may,

of course, try to pass, if passing is reasonably prudent; if not,

I ought to delay and seek redress at law, if damage ensue from my

detention.[226] If a wagon comes along so heavily laden that I cannot

pass it, the driver should stop at a convenient place to let me go

by.[227] A man on foot, or on horseback, or in a light trap, cannot

insist upon a teamster with a heavy load giving up part of the beaten

track, if there be sufficient room to pass without his doing so.”[228]

“I believe,” I said, “that in winter when the proper road is covered

with snow, and the beaten track is at the side, persons meeting on it

must turn to the right.”[229]

“If a collision does take place,” said Smith, who talked as if he

had inwardly digested all the reports ever published, “through a

defendant’s fault, the plaintiff may recover against him damages

commensurate with the whole of the injury sustained.[230] And,

by-the-by, I noticed the other day, that the laws of the road do not

apply to buildings which are traversing the highway.”[231]

“I should think not,” I replied.

A pause for a few minutes took place. Better far for me if it had

never been broken on that day. But it was ordained otherwise.

“Well,” said Mr. Smith at length, “we have had a very pleasant drive

together, and a very interesting conversation. I have enjoyed myself

very much, for it is not very often that one can meet on the top of

a coach, in this Ultima Thule of civilization, with a man who can

discourse so learnedly on the law of carriers as you have done. But I

regret to say that I must leave you at this little tavern, where the

stage stops for dinner.”

“I share your regret fully, and I, too, have thoroughly enjoyed myself,

and even my bruised toe has forgotten to twinge and throb during our

converse.”

“By the way,” added Smith, “I find I have forgotten, or lost, my purse;

could you kindly lend me a V., for I have my fare to pay.”

“Oh, certainly,” I replied, with apparent pleasure, but with inward

heaviness, for alas

I could plead, expound and argue,

Fire with wit, with wisdom glow;

But one word for ever failed me,

Source of all my pain and woe;

Luckless man! I could not say it,

Could not--dare not--answer: No!

The transfer of the Five was speedily made, and at that moment the

driver reined in his old horses and drew up at the door of a country

inn. Quickly my debtor jumped off the coach; with his bag swinging in

his hand, a nod to me and a low salaam to the ladies, he was walking

away, when the driver called after him:--

“I say, mister, where’s that ere fare?”

“Ah! that’s a trifle that quite escaped my memory,” responded my

quondam comrade. “Never mind, however, you will have a lien upon my

trunk in the meantime.”[232]

“Where’s your box?” queried Jehu.

“Oh! that’s a question more easily asked than answered. It is

where many a more valuable thing is, _in nubibus_, or _in partibus

infidelium_. However, it matters little, because you could not detain

me for the paltry fare, nor the clothes that I have on, nor even this

bag that I have in my manual possession.[233] So by-by to you.”

And away he went, leaving coachee pouring forth his vials of wrath in

epithets and expletives strong, if not polite.

“Alas,” thought I to myself, “it is such sharp and improper

conduct that makes men wish, like Shakespeare’s Dick, ‘to kill all

the lawyers;’ makes them abuse those who are (or should be) the

counsellors, secretaries, interpreters, and servants of Justice--the

lady and queen of all moral virtues--and apply to the members of our

profession the language of Congreve of old: ‘There’s many a cranny and

leak unstopped in your conscience. If so be one had a pump in your

bosom, we should discover a foul hold. They say a witch will sail

in a sieve, but the devil could not venture aboard your conscience.’

But I can flatter myself that an honest lawyer, like myself, ‘is the

life-guard of people’s fortunes; the best collateral security for

their estate; a trusty pilot to steer one through the dangerous and,

oftentimes, inevitable ocean of contention; a true priest of justice,

that neither sacrifices to fraud or covetousness; and one who can make

people honest that are sermon proof.’ He is one who can

Make the cunning artless, tame the rude,

Subdue the haughty, shake the undaunted soul;

Yea, put a bridle in the lion’s mouth,

And lead him forth as a domestic cur.”

FOOTNOTES:

[180] Nicholls _v._ Gt. Western Rw., 27 U. C. Q. B. 393; Boggs _v._ Gt.

Western Rw. Co., 23 U. C. C. P. 573; Ellis _v._ Gt. Western Rw. Co., L.

R., 9 C. P. 551; Johnston _v._ Northern Rw. Co., 34 U. C. Q. B. 432;

Penn. Rw. Co. _v._ Beale, 9 Can. L. J. (N. S.), 298.

[181] Stubley _v._ London and Northwestern Rw., L. R. 1 Ex. 16;

questioning Bilbee _v._ London, B., & S. C. Rw. Co., 18 C. B. (N. S.),

584.

[182] Winckler _v._ Gt. Western Rw., 18 U. C. C. P. 261; Dascomb _v._

Buffalo & State Line R. R. Co., 27 Barb. 221; Mackey _v._ N. Y. & C. R.

R. Co., 27 Barb. 528.

[183] Pittsburg, F. W., & C. Rw. _v._ Dunn, 56 Penn. St. 280; Balt. &

Ohio R. R. _v._ Breinig, 25 Md. 378; Skelton _v._ L. & N. W. Rw., L.

R., 2 C. P. 631; Johnston _v._ Northern Rw., 34 U. C. Q. B. 439; Penn.

R. _v._ Ackerman, 74 Penn. St. 265.

[184] Havens _v._ Erie Rw., 41 N. Y. 296; Grippen _v._ N. Y. C., 40

N. Y. 34; Parker _v._ Adams, 12 Met. 415; Johnston _v._ Northern Rw.,

_supra_; Bellefontaine Rw. _v._ Hunter, 33 Ind. 335; Miller _v._ G. T.

R., 25 C. P. (Ont.) 389.

[185] Galena & Ch. Rw. _v._ Loomis, 13 Ill. 548.

[186] Hart _v._ Erie Rw. Co., 3 Albany L. J. 312. See also Tabor _v._

Mo. Valley Rw., 46 Mo. 353; S. C., 2 Am. Rep. 270.

[187] Sneesby _v._ Lancashire & Y., etc., 1 Q. B. Div. 42.

[188] Tyson _v._ G. T. Rw., 20 U. C. Q. B. 256. See also, Ernst _v._

Hudson River Rw., 35 N. Y. 9.

[189] Winckler _v._ Gt. Western Rw., 18 U. C. C. P. 261; Nicholls _v._

Gt. Western Rw., 27 Q. B. U. C. 382.

[190] Stubley _v._ London & N. W. Rw., L. R., 1 Ex. 13.

[191] Thorogood _v._ Bryan, 8 C. B. 115, cited Id. 131; Rigby _v._

Hewitt, 5 Ex. 240; Greenland _v._ Chaplin, Ib. 247; Armstrong _v._

Lancashire & Y. Rw., L. R., 10 Ex. 47.

[192] Maule, J., in Thorogood _v._ Bryan, 8 C. B. 131.

[193] Note to Ashby _v._ White, 1 Smith’s Leading Cases (6th ed.), 356.

[194] Bennett _v._ N. Y., etc., 36 N. J. 225.

[195] Soule _v._ G. T. R., 21 C. P. (Ont.), 308.

[196] Stott _v._ G. T. R., 24 U. C. C. P. (Ont.), 347; Limpus _v._

London Omnibus Co., 1 H. & C. 526.

[197] Burton _v._ Phila., etc., R. R. Co., 4 Harring. (Del.), 252.

[198] Pate _v._ Henry, 5 Stew. & Port. 101.

[199] Miles _v._ James, 1 McCord, 157.

[200] Pain _v._ Patrick, 3 Mod. 289.

[201] Willoughby _v._ Horridge, 12 C. B. 751; Addison on Torts, 493.

[202] Cohen _v._ Hume, 1 McCord, 439; Fisher _v._ Clisbee, 12 Ill. 344.

[203] White _v_. Winnisimmet Co., 7 Cush. 155.

[204] Wilson _v._ Hamilton, 4 Ohio St. 722.

[205] Fisher _v._ Clisbee, _supra_.

[206] Powell _v._ Mills, 37 Miss. 691.

[207] Pate _v._ Henry, 5 Stew. & P. 101.

[208] Pluckwell _v._ Wilson, 5 C. & P. 375.

[209] Chaplin _v._ Hawes, 3 C. & P. 554.

[210] Wayde _v._ Carr, 2 Dowl. & Ry. 255.

[211] Kennard _v._ Benton, 25 Maine, 39; and in Ontario, by Con. St. U.

C. ch. 56, in meeting, conveyances must turn to right, and so when one

is overtaken by another.

[212] Story on Bail. § 599.

[213] Dudley _v._ Bolles, 24 Wend. 465.

[214] Washburn _v._ Tracy, 2 D. Chip. 128.

[215] Beach _v._ Parmeter, 23 Penn. St. 196; Grier _v._ Sampson, 27 Pa.

183.

[216] Angell on Highways, § 340.

[217] Wayde _v._ Carr, 2 Dow. & Ry. 255.

[218] Aston _v._ Heaven, 2 Esp. 533; Palmer _v._ Barker, 11 Me. 338.;

Foster _v._ Goddard, 40 Me. 64.

[219] Turley _v._ Thomas, 8 C. & P. 103.

[220] Angell on Highways, § 336.

[221] Johnson _v._ Small, 5 B. Mon. (Ken.), 25.

[222] Clay _v._ Wood, 5 Esp. 44; Parker _v._ Adams, 12 Metc. 415;

Kennard _v._ Burton, 11 Shepley (Me.), 39.

[223] Angell, § 337.

[224] Brooks _v._ Hart, 14 N. H. 307.

[225] Parker _v._ Adams, _supra_.

[226] Brooks _v._ Hart, 14 N. H. 307.

[227] Kennard _v._ Burton, 25 Me. 39.

[228] Grier _v._ Sampson, 27 Penn. St. 183.

[229] Jaquith _v._ Richardson, 8 Met. 213; Smith _v._ Dygert, 12 Barb.

613.

[230] Gilberton _v._ Richardson, 5 C. B. 502.

[231] Graves _v._ Shattuck, 35 N. H. 257.

[232] Wolf _v._ Summers, 2 Camp. 631.

[233] Sunbolf _v._ Alford, 3 M. & W. 248.

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