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.