INJURIES TO PASSENGERS AND EMPLOYEES.
An Inefficient Line.--Passengers hurt.--Employees killed.--Lord
Campbell’s Act.--Compensation for Death.--Solatium for Feelings
Wounded.--Scotch Law.--American Law.--Hen-pecked Husband’s
Will.--The Rule in Massachusetts.--In Pennsylvania.--In
Maryland.--In Canada.--Hard to decide.--Annuity Tables.--Bad or
Diseased.--Insured.--Children Injured.--Parents Compensated.--Amounts
obtained.--A Leg at $24,700.--For what compensated.--Chances
of Matrimony.--Servants injured.--Fellow Servants.--Different
Companies.--Which One to sue.--Strangers’ Act.--Greedy Ruminant.
I had fondly hoped that no new points, quirks, or quiddities on railway
law would arise in the course of my not very extensive practise for
some time to come, so that I might have leisure to paddle my own little
canoes, and issue little billets-doux in the Queen’s name to the
company on my own account. But alas! I had scarcely settled down in
my office on the day of my arrival at home when my young friend, Tom
Jones (to whom I referred in the early pages of this interesting and
instructive diary of mine), came rushing in.
After a considerable amount of small talk, chit-chat and mutual
inquiries after mutual friends and affairs, and things mutually
interesting, Tom exclaimed, “I say, old fellow, I have a couple of
matters that are bothering me, and I want your advice thereon.”
By the way, nearly all Tom Jones’ matters bothered him, and when they
bothered him he bothered me, for he was not one of those who
Make law their study and delight,
Read it by day and meditate by night.
“All right,” I said, extending my left digits towards him for an
_honorarium_.
“Oh, I am not going to pay you,” he remarked coolly, “so you need not
expect it.”
“Ah, well,” I returned, quietly and with the air of an ill-used man,
“I shall do like old Thurlow did, he could never come to a decision
without a fee, and so when he had to decide upon some matter for
himself he would take a guinea out of one pocket and put it into
another. Now what are your questions?” I always preferred answering his
queries to lending him books, for although he was a miserable hand at
accounts he was a most excellent book-keeper.
“I suppose you know,” began T. J., “that a short time ago, owing to a
heavy storm, part of the line of the Blank Railway gave way”----
“That is _primâ facie_ evidence of the insufficiency of its
construction; and a company is bound to build its works in such a
manner as that they will be capable of resisting all extremes of
weather, which in the climate through which the line runs might be
expected, though rarely, to occur. So say that august assembly, the
Judicial Committee of the Privy Council.”[560]
“Can’t you wait a bit--that’s not the point at all;” said Jones.
“Go on then.”
“Several men were killed, and, as is usual, they all had large families
of small children. Three of the wives have come to me to see if I can
get damages against the company for them.”
“Were they passengers or employees, for that makes a great difference,”
I said.
“One was employed on the line, the others were not,” replied Tom.
“Well, let us settle about the others first.”
“Well, what do you do first to get your damages? I mean under what Act
do you proceed?”
“Under what in England is called Lord Campbell’s Act (9 & 10 Vic. ch.
93), the Canadian Act[561] is a transcript of that; and a similar
statute has been introduced into most of the States of the Union, to
obviate that most heathenish of maxims _actio personalis moritur cum
personam_. Our Act provides that when death shall be caused by the
wrongful act, neglect or default, of any person, such as would (if
death had not ensued) have entitled the party to an action, in every
such case an action may be maintained by the executor or administrator
of the party injured, and the jury may give such damages as shall be
proportioned to the injury resulting from the death of such party, to
be divided among the members of his family as the jury shall direct.
But, of course, if any negligence of the party himself, or those in
charge of him, contribute directly to the injury, there can be no
remedy.[562] Have twelve months elapsed since the death?”
“No,” was the response.
“All right.”
“What damages shall I claim?”
“Only such as will compensate for the pecuniary loss sustained,”[563] I
returned.
“But one of my wives--the richest one, too,--went into most awful fits
over the death of her husband, and has not been quite _compos mentis_
since; and I want something to solace her for her mental sufferings.”
“You cannot get it in this country, nor could you in England either.
If the jury were to inquire into the degree of mental anguish which
each member of a family suffers from a bereavement, then not only the
child without filial piety, but a lunatic child and one of very tender
years, and a posthumous child, on the death of the father, although
getting something for pecuniary loss, would not come _in pari passu_
with other children, and would be cut off from the solatium. If a jury
were to proceed to estimate the respective degrees of mental anguish
of a widow and twelve children from the death of the pater-familiás,
a serious danger might arise of damages being given to the ruin of
the defendants: especially would the damages be disastrous if all the
relatives mentioned in the fifth section of the Imperial Act (the
sixth of the Canadian), the father and the mother, grandfather and
grandmother, stepfather and stepmother, grandson and granddaughter,
stepson and stepdaughter, not only got compensation for their pecuniary
losses, but solatiums for their shattered affections, blighted
expectations and broken hearts.”[564]
“That is too bad,” said Jones, “for I am sure the Scotch law gives a
solatium for wounded feelings, even where the death of the man, instead
of being a loss, is a gain to the family, owing to his bankruptcy or
dissipated habits.”[565]
“Yes,” I replied, “but the Scotch are always more liberal than other
people; they grant a solatium to a man injured in his happiness and
circumstances by the death of his wife and child, whereas in England
a widower will not get anything unless the death of his spouse causes
him some pecuniary loss;[566] it being a pure question of pecuniary
compensation, and nothing more, which is contemplated by the Act.[567]
Nor, I believe, can a husband recover in New York State for the death
of his wife.[568] But where the damages are for the next of kin, the
services of the deceased mother in the nurture and instruction of her
children, had she survived, may be properly considered.[569] I wonder
what is the rule as to the solatium in the Republic--let us see.”
So saying, I reached down a most useful book on Railways, by Chief
Justice Redfield, of Vermont, and concerning “the great learning,
research, and power of reasoning displayed” in which, Lord Chief
Justice Cockburn speaks with expressions of admiration.
“Here it is: ‘There seems no doubt, according to the best considered
cases in this country, that the mental anguish which is the natural
result of the injury, may be taken into account, in estimating damages
to the party injured in such cases, although not of itself the
foundation of an action.’”[570]
“It seems,” remarked my friend, “somewhat strange that in Canada a
person’s feelings should make no difference; for one of my widows feels
her loss deeply, whereas the other is evidently one of those ‘viders’
against whom Samivel Veller, Senior, would have warned his hopeful boy.”
“Both are entitled to the same compensation, although one was as
closely joined in sympathy and spirit to her lost spouse as was Chang
to Eng, in the flesh; and the other was the Elizabeth referred to in
the will of that unfortunate wretch who died in London, in 1791. I
must read you that will, though it is rather beside the subject, for
it is a perfect model for hen-pecked husbands to follow; here it is.
‘Seeing that I have had the misfortune to be married to the aforesaid
Elizabeth, who ever since our union, has tormented me in every possible
way; that heaven seems to have sent her into the world solely to drive
me out of it; that the strength of Samson, the genius of Homer, the
prudence of Augustus, the skill of Pyrrhus, the patience of Job, the
philosophy of Socrates, the vigilance of Hermogenes, would not suffice
to subdue the perversity of her character; that no power on earth can
change her; seeing we have lived apart during the last eight years,
and that the only result has been the ruin of my son, whom she has
corrupted and estranged from me: weighing, maturely and seriously,
all these considerations, I have bequeathed and I do bequeath, to my
said wife Elizabeth, the sum of one shilling, to be paid to her within
six months of my death.’ But to return; as to damages, I see that
in Massachusetts by statute[571] the passenger carrier is subject to
a fine, not exceeding $5,000, to be recovered by indictment, to the
use of the executor or administrator of the deceased for the benefit
of his widow and heirs. Under this Act, if the death is instantaneous
and simultaneous with the injury, as no right of action accrues to the
person injured, there is none to which the Act can apply;[572] but
it is sufficient if one does not die for fifteen minutes, although
insensible from the first.[573] In Pennsylvania, the jury were told
to estimate damages ‘by the probable accumulations of a man of such
age, habits, health, and pursuits as the deceased, during what would
probably have been his lifetime.’[574] In Maryland the jury was
directed to give such damages as would yield the family of the deceased
the same support as they would have obtained from the labor of the
father during the time he would probably have lived and worked, and
that they might consider the age, health, and occupation of the man
killed, and the comfort and support he was to his family at the time of
his death.”[575]
“I see,” said Tom, who seemed unwilling that I should do all the
talking, “that our own Chief Justice Robinson, on one occasion,
confessed himself utterly at a loss to make a satisfactory computation
of the amount of damages to be awarded, or of the pecuniary loss
sustained by a widow and her children through the death of the head
of the house: he said he had no means of determining whether they
would have been better off if the father’s life had run its natural
course, or not; it was mere conjecture. The father might have become
extravagant or intemperate, and squandered his property; or from too
great eagerness to grow rich, might have lost it by grasping at too
much, or might have died from natural causes within a year or a month,
leaving his family no better off than he did leave them when carried
away by the sad accident.[576] And I think that I would be equally
puzzled were I on a jury; I don’t see how in the world a jury, except
by drawing lots, can calculate the damages arising from the loss of the
income, and of the care, protection, and assistance of the father.”
“Yes, it must be rather a nice calculation.”
“Suppose,” continued Jones, “there was an accident to a train
containing an archbishop, a lord chancellor, a bank director, a
lunatic, a wealthy but immoral man, and one virtuous but bankrupt,
and all these respectable persons came to final grief: how could any
ordinary jury estimate the pecuniary value of the conjugal and paternal
care, protection, and assistance of each of these.”
“You need not put such an unlikely case,” I said, “merely suppose that
there were together one who--
‘scorned life’s mathematics,
Could not reckon up a score,
Pay his debts, or be persuaded
Two and two are always four.
That another was exact as Euclid,
Prompt and punctual, no one more.’”
“Still,” I added, “these difficult calculations have to be made.”
“But how?”
“In England, it has been decided that the damages are not to be
estimated according to the life of the man, calculated by annuity
tables, but the jury should give what they consider a reasonable
compensation;[577] although, in the United States, it was thought
proper for the judge in charging the jury to allude to the
expectation of life according to the tables deduced from the bills of
mortality:[578] and even in England, in such cases, the average and
probable duration of the life is a material point, which cannot be
better shown than by the tables of insurance companies, who learn it
by experience.[579] And the probable benefits of the continuance of
the life of the father, as to the children, is to be estimated with
reference to their majority, and as to the widow, with reference to
the expectation of life as determined by the tables.[580] Of course,
the jury are not to attempt to give damages to the full amount of
a perfect compensation for the pecuniary injury, but must take a
reasonable view of the case, and give what they consider, under all the
circumstances, a fair compensation.”[581]
“Would it make any difference were the man of a bad character or
diseased?”
“If the man had a fatal disease which would be sure to kill him in a
short time, the amount of damages given should be less.[582] And as
to character, the loss is supposed to be of a man as he ought to be.
It has been held not to be necessary that the widow, or next of kin,
should have any legal claim upon the deceased for support.”[583]
“How would it be if he was insured, and by his death the family rather
made than lost?”
“Well, I presume that if the insurance goes to a man’s family, it would
be a good reason for reducing the amount of damages. There appears to
be only one English case on this point, and that was at _Nisi Prius_
and is not reported at length; in it Lord Campbell told the jury to
deduct from the amount of damages the amount of an insurance against
accidents, and any reasonable sum they should think fit in respect
of life insurance.[584] In a Canadian case, McLean, J., said, that if
the interest on the insurance would exceed the annual value of the
testator’s income while living and exercising his ordinary avocations,
it would surely be competent for the company to show that the widow had
sustained no pecuniary damages, and that only nominal damages should be
given, if indeed any.[585] But, I should say that if the insurance went
to some of the family only, the others would still have their right to
substantial damages.”[586]
“I believe,” continued the irrepressible Jones, “that if an injured
man settles with the company for a sum of money, that puts an end to
the whole matter, and if he afterwards shuffles off this mortal coil
nothing more is to be had.”
“Yes; once and forever, is the rule, even if the unfortunate makes a
mistake and takes too little.”[587]
“Can you make money out of the slaughter of children?”
“Oh, certainly; though in England doubts have been suggested as to
whether damages were obtainable to compensate for the loss of the
services of a child so young as to be unable to earn anything;[588]
but in New York a mother recovered $1,300 for the death of a daughter
seven years old.”[589]
“That was a pretty good figure for a female youngster.”
“Yes, as the pecuniary loss is not supposed to be extended beyond the
minority of the child.[590] In England, however, a father recovered
for the loss of a son twenty-seven years old, but unmarried, who had
been accustomed to make occasional presents to his parents.[591] There
the old man rather ‘tried to stick it on’; he had a swell funeral and
bought crape for the family and wanted the company to pay for them;
the jury said ‘Yea,’ but the court said ‘Nay.’ In one case, however, a
mourning husband recovered the funeral expenses of his wife.[592] As a
rule, damages of a pecuniary nature must be shown; so, where a son was
in the habit of assisting his father by carrying round coals for him,
it was held that £75 was too much to give the old man for compensation
for his death.[593] In an Irish case, where a boy of fourteen, earning
no wages and whose business capabilities were valued at _six-pence_
per day, was killed, it was considered that the probability of his
assisting his mother was good evidence to go to the jury.[594]
“What sums have been given and allowed by the court for the death of
the father?”
“Well, it was considered that $12,000 was not too much for the widow
and three children of an industrious well-to-do farmer;[595] in an
English case £1,000 was given to the widow, and £1,500 to each of
eight young children, $65,000 in all;[596] then $1,300 for that baby
girl.[597] But when $20,000 was given as damages for the death of a
blacksmith--the inventor of a patent plough--who was killed at the
celebrated Desjardins Canal accident, a new trial was granted, as the
court thought the sum enormously excessive.[598] On the other hand, in
one case, twelve miserable jurymen, who doubtless would have eagerly
skinned a mosquito for the sake of its hide and tallow, gave £1 to a
poor widow, and ten shillings each to her two fatherless children.[599]
So you see the sum goes by the rule of thumb.”
“So it appears,” answered my young friend, who sucked in knowledge as
a sponge does water--only to lose it again. “But some of those are not
bad figures.”
“Certainly not; yet they are by no means as good as some people
have get and had the pleasure of spending themselves. In one case, a
man received $6,000 for a broken leg, which got well in about eight
months:[600] another got $24,700 (Canada money) for the loss of his
leg.”[601]
“What a leg that must have been--a match for Miss Kilmansegg’s precious
limb, which
‘Was made in a comely mould,
Of gold, fine virgin glittering gold,
As solid as man could make it--
Solid in foot, and calf, and shank,
A prodigious sum of money it sank;
In fact, ’twas a branch of the family bank,
And no easy matter to break it.
All sterling metal,--not half-and-half,
The goldsmith’s mark was stamped on the calf,--
’Twas pure as from Mexican barter.
’Twas a splendid, brilliant, beautiful leg,
Fit for the Court of Scander-Beg,
That precious leg of Miss Kilmansegg!’”
Exclaimed Tom Jones glowing with poetic fire, his eye in a fine frenzy
rolling at the thought of the bawbees.
“Cease exhibiting your Hood,” I said severely. “In another case $10,000
was obtained for something or other, when if the man had been killed
outright his friends would only have got $5,000.[602] But in these
three cases, new trials were granted, as will always be the way where
the damages are so excessive as to strike every one as beyond all
measure unreasonable and corrupt, and as showing the jury to have been
actuated by passion, corruption, or prejudice.[603] Where, however, a
woman had lost one arm and the use of the other, and was so bruised,
battered, blackened and injured that she was in constant pain, and
her health and memory were impaired, and in three successive trials
recovered $10,000, $18,000, and $22,250 respectively, the first two
verdicts were set aside, but she was allowed to keep the third.[604]
And where one was disabled for two years, $4,500 was held not
exorbitant compensation;[605] and in Connecticut, $1,800 to a two year
old baby for the loss of a leg and hand were given and retained.[606]
And where a man broke his leg in two places, was confined to his room
for four or five months during which time the injured leg became
shorter than the other, he was allowed to retain $2,000 awarded to
him by the jury,[607] and Mr. Rockwell, who had to keep his bed six
weeks, suffering great pain the while, and could not attend to his
business for several months and had to pay $1,500 to the disciples of
Galen, was allowed to keep $12,000 given him by twelve jurymen.[608]
But $5,000 for a damaged hand was held too much.[609] As these things
rest a great deal in the discretion of the jury they must of necessity
be more or less uncertain. But the amount paid by railway companies
for compensation for injuries is enormous: the Revere accident, in
Massachusetts, a few years ago, cost the company half a million of
dollars, and in England between 1867 and 1871 the various companies
paid out $10,000,000 for this purpose.”
“Can you sue more than once?”
“No; you must go for all your damages, present and prospective, in one
action.”[610]
“What do you actually get paid for?”
“The effect of the accident--both at the present time and in the
future--upon one’s health, use of limbs, ability to attend to business
and pursue the course of life that one otherwise would have done, the
bodily pain and suffering endured, and in fact all injuries that are
the legal, direct, and necessary results of the accident.[611] If
sufficient time has not elapsed to enable the injury to be properly
computed, the trial should be postponed.[612] A jury may be properly
asked to consider the fact that the injured one had a reasonable
prospect of increasing his income although at the time it was
small.[613] In some cases the plaintiff has been allowed to add to his
actual damages of loss of time, expense of cure, pain and suffering,
and prospective disability, if any--counsel fees not recoverable as
taxable costs,[614] but this rule is not now followed.[615] A husband
may recover for the expense of the cure of his wife, and for the loss
of her services.[616] Expenses incurred by sickness of a wife caused by
the death of her child,[617] and damages for premature labor, and birth
of a still-born child caused by collision, are recoverable.[618] One
young lady, who was seriously injured by the upsetting of a passenger
car, sought to get additional damages because the prospects of her
forming a matrimonial alliance were lessened by her injuries, but the
poor thing failed in her attempt for lack of evidence on the point, and
because her attorney had neglected to insert the special claim in the
declaration.”[619]
“Oh that was too bad,” said Jones, “for the desire of marriage--her
chances of which had been lessened--arises naturally from the principle
of reproduction which stands next in importance to its elder born
correlative, self-preservation, and is equally a fundamental law of
existence: it is the blessing which tempered with mercy the justice of
the expulsion from Paradise; it was impressed upon the human creation
by a benevolent Providence, to multiply the images of Himself, and so
promote His own glory and the happiness of his creatures. Not man alone
but the whole animal and vegetable kingdoms are under an imperious
necessity to obey its mandates. From the lord of the forest to the
monster of the deep; from the subtlety of the serpent to the innocence
of the dove; from the celastic embrace of the mountain Kalima to the
descending fructification of the lily of the plain, all nature bows
submissively to this primeval law. Even the flowers which perfume the
air with their fragrance and decorate the forests and the fields with
their hues, are but curtains to the nuptial bed. The principles of
morality, the policy of nations, the doctrines of the common law, the
law of nature and the law of God, unite in condemning any act which
hinders people entering into the holy estate of wedlock.”[620]
“My conscience, Tom Jones, how did you become master of such mighty and
glowing strains of high toned eloquence,” I asked, as I “astonied stood
and blank.”
“Oh, I have an action for breach of promise coming on to-morrow, and I
thought I would see if I knew the peroration of my address to the jury.”
“Did you compose it?” I asked.
“Not quite. Mr. Justice Lewis, of Pennsylvania, originally uttered the
words in giving judgment in a will case. Now then,” said Jones, after a
pause, “what about the employee that was killed.”
“Ah! more of them are killed every year than the number of soldiers
who died during the Ashantee war; 1,000 or 1,200 appears to be the
annual number in the old country. But it is clearly settled both
in England and America, that a servant who is injured through the
negligence or misconduct of a fellow servant, can maintain no action
against the master,[621] if the latter has taken due care not to expose
him to unnecessary danger,[622] and has made a proper selection of
servants--competent and trustworthy--and has a sufficient number of
them,[623] and has himself not been guilty of negligence,[624] and
takes care to furnish and maintain suitable and safe machinery and
structures,[625] and if a servant continues his work knowing that his
fellows are incompetent, or the machinery defective, he is guilty of
contributory negligence.”[626]
“It seems,” remarked my friend, “strange that if my coachman runs over
a stranger and kills him, I have to make reparation, but if he runs
over the footman and disposes finally of that man of buttons, it is a
matter of no importance. And in this case it will prove very hard on
the poor family.”
“Ah, well! judges and juries must not be drawn out of the path of duty
even by their feelings for the widow and the orphan. The reason of the
law is, that when a servant engages to serve a master he undertakes to
run all the ordinary risks of the service, which includes, of course,
the negligence of fellow servants acting in the discharge of their duty
towards their common master.[627] If the rule was otherwise it might
become very hard on the master; as Lord Abinger suggests, the footman
who sits behind the carriage would have an action against his master if
he came to grief through the negligence of the coach-maker or harness
maker, or through the drunkenness, neglect, or want of skill of the
coachee; in fact the poor master would be liable to his servant for
the negligence of the chambermaid, in putting him into a bed with damp
sheets, whereby he took the rheumatism; for that of the upholsterer
in sending him a crazy bedstead, whereby he fell down while asleep
and injured himself; or for the negligence the cook in not properly
cleaning the copper vessels used in the kitchen; of the butcher in
supplying the family with meat injurious to health; of the builder for
a defect in the foundation of the house whereby it fell, and injured
both the master and the servants in its ruins.”[628]
“But what is a fellow servant?”
“In England all the servants of the same person, or company, engaged
in carrying forward the common enterprise--although in different
departments, widely separated or strictly subordinated to others--are
fellow servants and are bound to run the hazard of any negligence or
wrong doing which may be committed by any of their number,[629] and
it makes no difference that the negligence is imputed to a servant of
superior authority, whose directions the other was bound to obey.[630]
But in some of the American cases, it has been held that employees, who
are so far removed from each other as that the one is bound to obey
the other, are not fellow servants within the rule;[631] other judges,
however, have denied this qualification;[632] and now it seems settled
that it is sufficient to bring the case within the general rule, if the
servants are employed in the same general service,[633] or under the
same general control.”[634]
“All this may be very true, but then you see, my dear Eldon, my man was
killed in consequence of the state of the track,” said Jones.
“Why in the name of all that is sacred and profane did you not remind
me of that before. In one case a company was held responsible for
an injury to one of its servants through the track being out of
repair,[635] but in others it was considered that if the line was
properly built and inspected it was all that could be required.[636] So
you can draw your own conclusions, for I am getting tired of you.”
“Well, I’m off, and am much obliged. But, oh, one point more before
I leave you. One of the men was coming from Chicago and had a coupon
ticket which he purchased at the station there, does that make any
difference?”
“Through tickets do not import a contract with the purchaser on the
part of the company selling to carry him beyond the limits of their
own line: the coupons are to be considered as so many distinct tickets
for each road, sold by the first company as agent for the others;[637]
and each successive company is responsible for all injuries to through
passengers while upon its own line and in passing to the next company’s
line.[638] The companies cannot be considered partners so as to render
each liable for injuries or losses occurring upon the whole route.”[639]
“Is not that different from the rule as to carrying goods and baggage,
and the rule in England?”
“As to carriers of goods or baggage taking pay and giving checks
or tickets through, the first company is ordinarily liable for the
entire route;[640] and in England it has been decided[641] that where
a railway company contracts to carry a passenger from one terminus
to another, and on the journey the train has to pass over the line
of another railway company, the company issuing the ticket incurs
the same responsibility as that other company, over whose line the
train runs and by whose default the accident happens, would incur
if the contract to carry had been entered into by them. The company
issuing the ticket is liable for the negligence of the servants of
any other company over whose line the passenger has to pass to reach
his journey’s end; the contract with the passenger being the same
whether the journey be entirely over the line of the first company,
or partly over that of another company, and whether the passage over
the other line be under an agreement to share profits or simply under
running powers; and that contract is, not only that they will not be
themselves guilty of any negligence, but that due care will be used
in carrying the passengers from one end of the journey to the other,
so far as is within the compass of railway management.[642] In fact,
the rule in regard to companies that run over other roads than their
own seems now to be pretty well established; and it is, that the first
company is responsible for the entire route and must take the risk of
the employees of the other companies;[643] and where another company
has running powers over the first company’s line, the first company
is not liable for any injury arising through the negligence of such
other company; though if it were a case of goods they would be liable,
because they are then insurers.”[644]
“I suppose in England you can only sue the company granting the ticket.”
“Yes. I would just add, so that you may have an exhaustive discourse
on the subject, that if mischief arises from the act of a stranger
in leaving a log of wood across the railway, or doing any other
act which might endanger a railway train passing along the line of
another company, an action cannot be maintained against the railway
company, because in that case there would not be any direct or indirect
breach of duty, or breach of contract, on their part; they would
not be liable on their own line, or on any other company’s line for
that;[645] the same doctrine was held where a stranger had wilfully
and maliciously placed a stone upon the track which threw off the
train.[646] If, however, a man falls off the cars on to the track,
because he has no proper place to sit and his body throws the train
off, this will afford no excuse for damages to the man’s luggage from
such upsetting.[647] So, where the covetous greed of a young bullock
induced him to force his way through a hedge to gain some tempting
grass that grew luxuriantly on the track, and the collision with him
of the train hurt Mr. Buxton who was on board; and it appeared that
B. had been a passenger on the defendants’ railway to be carried from
Y. to T., and to reach T. it was necessary to travel over the line
belonging to another company, and while journeying over the latter line
the affair of the bullock took place. The court held that the contract
having been made with the defendants they were the proper parties to be
sued. A new trial was, however, granted because the judge had directed
the jury that it was negligence in the defendants if the fences were
insufficient; the court considering that there was no statutory
obligation on the company, towards their passengers, to keep up the
fences.”[648]
“What would it have been if the bullock had jumped over the hedge
instead of pushing through?” asked Jones.
“I don’t understand.” I returned.
“Why a case of cattle-lept-sy to be sure. Au revoir.”
FOOTNOTES:
[560] Gt. Western Rw. _v._ Fawcett; Same _v._ Braid, 1 Moore, P. C. C.
(N. S.), 101; 9 Jur. (N. S.), 339.
[561] Con. Stat. Can. ch. 78.
[562] Willets _v._ Buffalo & Rochester Rw., 14 Barb. 385, where a
lunatic was left by himself and in consequence was killed.
[563] Blake _v._ Midland Rw., 18 Q. B. 93; Bradburn _v._ G. W. R.,
L.R., 10 Ex. 3.
[564] Blake _v._ Midland Rw., 18 Ad. & Ell. (N. S.), 93; Pym _v._ Great
Northern Rw., 4 B. & S. (Ex. Ch.), 396.
[565] Ersk. Inst. 592, note 13.
[566] In argument Gillard _v._ Lancaster & Yorkshire Rw. Co., 12 L. T.
356.
[567] Armsworth _v._ Southeastern Rw. Co., 11 Jurist, 758.
[568] Lucas _v._ N. Y. C., 21 Barb. 245; Worley _v._ Cincinnati, H., &
D. Rw., 1 Handy, 481.
[569] Tilley _v._ Hudson River Rw., 29 N. Y. 252.
[570] Canning _v._ Williamstown, 1 Cush. 451; Morse _v._ Auburn &
Syracuse Rw., 10 Barb. 623; so in California, Fairchild _v._ California
Stage Co., 13 Cal. 599.
[571] 1842, c. 89.
[572] Hollenbeck _v._ Berkshire Rw., 9 Cush. 481.
[573] Bancroft _v._ Boston & Worcester Rw., 11 Allen, 34.
[574] Penn. Rw. Co. _v._ McCloskey, 23 Penn. St. 526, 528.
[575] Baltimore & Ohio Rw. _v._ State, 24 Md. 271.
[576] Secord _v._ Great Western Rw., 15 U. C. Q. B. 631.
[577] Armsworth _v._ Southeastern Rw., 11 Jur. 759.
[578] Smith _v._ N. Y. & Harlem Rw., 6 Duer, 225, City of Chicago _v._
Major, 18 Ill. 349.
[579] Rowley _v._ London & N. W. Rw., 29 Law Times Rep. (N. S.), 180.
[580] Balt. & Ohio Rw. _v._ State, 33 Md. 542; Macon & Western Rw. _v._
Johnson, 38 Ga. 409.
[581] Rowley _v._ London & N. W. Rw., 29 Law Times Rep. (N. S.), 180.
[582] Birkett _v._ Whitehaven Junction Rw., 4 H. & N. 732.
[583] Railway Co. _v._ Barron, 5 Wallace, 90.
[584] Hicks _v._ Newport A. & H. Rw., mentioned in 4 B. & S. 403; see
Bradburn _v._ G. W. Rw., L. R., 10 Ex. 3, where it was held that money
received on an accident insurance policy could not be considered in
reduction of damages for injuries caused by negligence.
[585] Ferrie _v._ Great Western Rw., 15 U. C. Q. B. 517.
[586] Pym _v._ Great Northern Rw., 4 B. & S. 397, Ex. Ch.
[587] Read _v._ Great Eastern Rw., L. R., 3 Q. B. 555; but see remark
of Erle, C. J., in Pym _v._ Gt. N. Rw., 4 B. & S. 406; and Coleridge,
J., in Blake _v._ Midland Rw., 18 Ad. & El. (N. S.), 93.
[588] Bramhall _v._ Lees, 29 Law Times, 111.
[589] Court of Appeals, 14 N. Y. 310.
[590] State _v._ Baltimore & Ohio Rw., 24 Md. 84; but see Penn. Rw.
_v._ Adams, 55 Penn. St. 499.
[591] Dalton _v._ S. E. Rw. 4 C. B. (N. S.), 296.
[592] Redfield on Railways, vol ii. p. 275.
[593] Franklin _v._ S. E. Rw. 3 H. & N. 211; Duckworth _v._ Johnson, 4
H. & N. 653.
[594] Condon _v._ Great Southern & Western Rw., 16 Ir. C. L. R. 415.
[595] Secord _v._ Great Western Rw., 15 U. C. Q. B. 631.
[596] Pym _v._ Great Northern Rw., 4 B. & S. 397 Ex. Ch.
[597] Court of Appeals, 14 N. Y. 310.
[598] Morley _v._ Great Western Rw., 16 U. C. Q. B. 504.
[599] Springett _v._ Balls, 7 B. & S. 477.
[600] Clapp _v._ Hudson R. R., 19 Barb. 461.
[601] Batchelor _v._ Buffalo & Brantford Rw., 5 U. C. C. P. 127.
[602] Collins _v._ Albany & Sch. Rw., 12 Barb. 492.
[603] Coleman _v._ Southwick, 9 Johns. 45; Gilbert _v._ Burtenshawf,
Cowp. 230; Hewlett _v._ Cruchley, 5 Taunt. 277.
[604] Shaw _v._ Boston & Worcester Rw., 8 Gray, 45.
[605] Curtiss _v._ Rochester & S. Rw., 20 Barb. 282.
[606] Redfield on Railways, vol. ii., p. 243.
[607] Fairbanks _v._ G. W. R., 35 Q. B. (Ont.), 523.
[608] Rockwell _v._ Third Avenue Rw., 64 Barb. N. Y. 438.
[609] Union Pacific Rw. _v._ Hand, 7 Kan. 380.
[610] Hodsoll _v._ Stallebras, 11 Ad. & El. 301; Whitney _v._
Clarendon, 18 Vt. 252.
[611] Curtiss _v._ Rochester & S. Rw., 20 Barb. 282; Memphis, etc. Rw.
_v._ Whitfield, 44 Miss. 466.
[612] Speers _v._ G. W. R., 5 Pr. Rep. (Ont.), 173.
[613] Fair _v._ L. & N. W. Rw., Q. B. 18 W. R. 66.
[614] Barnard _v._ Poor, 21 Pick. 381; Sandback _v._ Thomas, 1 Stark.
306.
[615] Grace _v._ Morgan, 2 Bing. (N. C.), 534; Jenkins _v._ Biddulph, 4
Bing. 160.
[616] Hopkins _v._ Atlantic & St. Lawrence Rw., 36 N. H. 9; Pack _v._
Mayor of New York, 3 Comst. 489; Campbell _v._ G. W. R., 20 U. C. C. P.
345.
[617] Ford _v._ Monroe, 20 Wendell, 210.
[618] Fitzpatrick _v._ Great Western Rw., 12 U. C. Q. B. 645.
[619] Hanover Rw. _v._ Coyle, 55 Penn. 396.
[620] Per Lewis, J. Commonwealth _v._ Stauffer, 10 Barr. 350.
[621] Priestley _v._ Fowler, 3 M. & W. 1; Farwell _v._ Boston & W. Rw.,
4 Met. 49; Brown _v._ Maxwell, 6 Hill, N. Y. 592.
[622] Hutchinson _v._ York, etc., Rw., 5 Ex. 353; Wiggett _v._ Fox, 11
Ex. 837; Keegan _v._ Western Rw., 4 Selden, 175.
[623] Tarrant _v._ Webb, 18 C. B. 805; Frazier _v._ Penn. Rw., 38 Penn.
St. 104; Wright _v._ New York Central, 28 Barb. 80; Hard _v._ Vermont &
Canada Rw., 32 Vt. 473.
[624] Ormond _v._ Holland, 1 El. Bl. & El. 102.
[625] Bartonshill Coal Co. _v._ Reid, 3 Macq. H. L. Cas. 266; Tarrant
_v._ Webb, 18 C. B. 797; Weems _v._ Mathieson, 4 Macq. 215.
[626] Holmes _v._ Clark, 6 H. & N. 349; 7 Ibid. 937.
[627] Morgan _v._ Vale of Neath Rw., L. R., 1 Q. B. 149.
[628] Priestley _v._ Fowler, 3 M. & W. 1.
[629] Tunney _v._ Midland Rw., L. R., 1 C. P. 291; see also, Plant _v._
G. T. R., 27 U. C. Q. B. 78.
[630] Feltham _v._ England, L. R., 2 Q. B. 33.
[631] Coon _v._ Syracuse & Utica Rw., 1 Selden, 492; Louisville & N.
Rw. _v._ Collins, 5 Am. Law Reg. (N. S.), 265.
[632] Farwell _v._ Boston & W. Rw., 4 Met. 49, 60; Gillshannon _v._
Stony Brook Rw., 10 Cush. 228; Chicago & N. W. Rw. _v._ Jackson, 55
Ill. 492.
[633] Wright _v._ N. Y. C., 25 N. Y. 562; and see Baird _v._ Pettit, 29
Phil. Rep. 397.
[634] Abraham _v._ Reynolds, 5 H. & N. 142; Hard _v._ Vermont & Canada
Rw., 32 Vt. 475.
[635] Snow _v._ Housatonic Rw., 8 Allen, 441.
[636] Faulkner _v._ Erie Rw., 49 Barb. 324; Warner _v._ Same, 8 Am. Law
Reg. (N. S.), 209.
[637] Sprague _v._ Smith, 29 Vt. 421; Hood _v._ N. Y. & N. H. Rw., 22
Conn. 1.
[638] Knight _v._ P. S. & P. R. Rw., 56 Me. 234; 2 Redf. Am. Rw. cases,
458.
[639] Ellsworth _v._ Tartt, 26 Ala. 733.
[640] McCormick _v._ Hudson R. Rw., 4 E. D. Smith, 181.
[641] Great Western Rw. _v._ Blake, 7 H. & N. 987, Ex. Ch.
[642] Thomas _v._ Rhymney Rw. Co., L. R., 6 Q. B. 266, Ex. Ch.; and
John _v._ Bacon, L. R., 5 C. P. 437.
[643] Redfield on Railways, vol. ii. p. 303; Railway Co. _v._ Barron,
5 Wall, 90; Ayles _v._ S. E. Rw., L. R., 3 Ex. 146; Birkett _v._
Whitehaven Junction Rw., 4 H. & N. 730; Sprague _v._ Smith, 29 Verm.
421, was an exceptional case.
[644] Wright _v._ Midland Rw., L. R., 8 Ex. 137.
[645] Mytton _v._ Midland Rw., 4 H. & N. 615; Great Western Rw. _v._
Blake, 7 H. & N. 987, Ex. Ch.; Weed _v._ Saratoga Rw., 19 Wend. 534.
[646] Latch _v._ Rimmer Rw., 27 L. J., Ex. 155; see also, Cunningham
_v._ Grand Trunk Rw., 31 U. C. Q. B. 350; Curtis _v._ Rochester &
Syracuse Rw., 18 N. Y. 534; Tennery _v._ Pippinger, 1 Phila. 543;
Thayer _v._ St. Louis, A. & T. H. Rw., 22 Ind. 26; Pitts., Ft. Wayne, &
Chicago Rw. _v._ Maurer, 21 Ohio, N. S. 421.
[647] Goldey _v._ Penn. Rw., 30 Penn. St. 242.
[648] Buxton _v._ Northeastern Rw., L. R., 3 Q. B. 549.