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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmis A des taux de reduction diff^rents. Lorsque le document est trop grand pour Atre reproduit en un seul clich6, 11 est filmA A partir de Tangle sup6rieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 % r ■I "u ■ WRONGS AND RIGHTS OF A TRAVELLER. BY BOAT-BY STAGE -BY RAIL. BY A BARRISTER-AT-LAW, OF OSaOODB HALL. TORONTO : PUBLISHED BY R. CARSWELL 1875. i»rt(iiMifc.ii>.iail. 196827 Entered according to the Act of the Par- hament of Canada, in the year one thousand eight hundred and seventy-five, by R. Cars- well, for the author, in the office of the I Minister of Agriculture. nUNTRB, -.OSB AND CO., rUINTEHS AND BINDKKM, TOHONTO. TO HIS FELLOWS OF ,THE LEGAL FRATERNITY, THE TRAVELLING PUBLIC, AND ALL OTHERS WHO MAY CARE TO READ THEREIN THIS BOOK 18 §emmm\i §Mam BV THE AUTHOR. c PREFACE. rPHIS little work does not aspire to compete with the learned J. productions of Redfield, Chitty or Story, but merely to supply a want, felt by many to exist in this age of perpetual motion, of a plain and brief summary of the rights and liabilities of carriers and passengers by land and by water. An attempt is made in the following pages to combine instruc- tion with entertainment, information with amusement, and to impart knowledge while beguiling a few hours in a railway car- riage, or on a steamboat. Whilst it is hoped that the general public will peruse with interest the text, containing elegant extracts from ponderous legal tomes — gems from the rich mines of legal lore — and where in many cases the law is laid down in the very words of learned judges of England, Canada and the United States ; the notes — a cloud of authorities — the index and the list of cases are inserted for the special delectation of the professional reader. Though written in Ontario, the book will be found applicable to all parts of the Dominion, as well as to the United States and England. The Author, even if the style is deemed novel, does not seek the praise of originality for the substance of the following chap- ters, as the greater portion of the text, and well nigh all the notes, have been taken from the works of others, to whom all due thanks are now rendered How far the book is likely to be of use to the seeker after knowledge, or of assistance to those desiring to kill time, is for others to determine. If mistakes be discovered it is hoped that c VI PREFACE. the reader— professional or otherwise— will bear with them, " for if the work be found of sufficient merit to require another edition, they will probably be corrected, and if no such demand is made the book has received as much labour as it deserves." The Author is very « 'umble, coming of an 'umble famUy," like the celebrated Uriah— not the Hittite, but he of the Heap tribe— and he wiU be quite content and satisfied if every reader, after having perused this work, says of him as Lord Thurlow said of Mansfield : "A surprising man; ninety-nine times out of a hun- dred he is right in his opinions and decisions, and when once in a hundred times he is wrong, ninety-nine men out of a hundred would not discover it." COKTENTS. BOOK FIRST.— BY RAIL. CHAPTER I. DRIVING. PAOE New Year's Day— Collision with Old Bolus— Must I pay for my servant's deeds — Deaf man run over — EflFects of an Avalanche — Housemaid injured by Coachman — Wives, snakes or eels — Driver and Driven — Right side or wrong — Look out — Ersk.iie and Kenyon 1 CHAPTER II. INSURANCE. What's an accident ? — Major vis — Exposure and death — Wholly disabled — What can be recovered — Heavy weights — Stumbling — Pitchforked — Change of business — Lost beneath the dancing waves — A man not a pri- vate conveyance — Carelessness 8 CHAPTER III. STATIONS AND STARTING. Meditations on crossings — Bell or whistle — Access to stations — Slippery ice- Checks on trunks — Notice of arrivals and departures — Trains late as usual — Must keep time — Damages, damages — Proof — 111 fared Welfare — Wait- ing rooms not smoke-houses — Charge of the iron horse — Tripped up 14 CHAPTER IV. TICKETS, Man and wife double as to baggage — Money in trunk — Authority of Amerioan decisions — Annual tickets — Badge of officers — Legislature outwitted — "Tickets, sir"- "Good for this day only"— "Good for this trip"— Stepping off— Lose a ticket, and pay again — The Acts 26 c Vlll CONTENTS. CHAPTER V. PRODUCING TICKETS, OR EVICTION. Carried past— Jumping off— JtinotioiiB — Cave oanem — Condactora refusiog change — Fighting in the can — Tamed out in the dark — No seats — Coloured persons — Tickets lost and found too late — Conductor's conduct — Damages for wrongful ejectment' — Go quietly — Companies heavily mulcted — By law as to producing Tickets — ^A lover, his mark — Getting off for a moment 35 CHAPTER VI. PLATFORMS AND ALIOHTINO. Right to safe ingress, egress and regress — Defective platforms — The English- man and the C'rum cat'or — Getting out of cars — Train not at platform- Calling out name ; is it an invitation to alight ? Ladies jumping — Must have safe place to alight — Leaving train in motion 47 CHAPTER VIL BAGGAGE. Gone — Company liable for lost baggage — Carelessness of owner — Cheeking — What is baggage ? — Papers — Spring horse — Household goods going west —Luggage left in cloak room — Limitation of liability — Taking change — Railroad police — Beauties of checks — Fall of a window — Legs and arms outside — Officials squee2dng fingers— Stem Boreas 57 CHAPTER Vni. DUE CARE. Snowed up — Pacific Railway — Passenger carriers not insurers — Company must use due care — Defective machiiery — Broken axle — Company must ac- count for accident — Difference between goods and men — What is due care ? Latent defects in cars — English rule — Rule in New York — Moral- izing 69 CONTENTS. IX CHAPTER IX. ACCIDENTS TO TRAVELLERS. Standing on platforms of cars — Roum and seats to be furnished— Riding in express cars — In caboose car — Rule in Illinois — Walking through the train — Innocent blood — Damages to infants and juveniles — Child's fare unpaid — $1,800 for a baby's leg and hand — Negligence of a nurse — Travelling on free pass — Conditional liability — Company exempt — Pat and Sambo— Home again from a foreign shore 77 CHAPTER X. INJURIES TO PASSENGERS AND EMPLOYEES. Inefficient line — Passengers hurt — Employees killed — Lord Campbell's Act — Compensation for death — Solatium for wounded feelings- '^ jtch law — American law — Hen-pecked husband's «ul — The rule in Maasachr.^ettb — in Pennsv' r- " V— in Maryland — in Canada — Hard to decide— iUjiii^ty tables — Bad or diseased — Insured — Children iciured. — Parenlu compen- satuci — Amounts obtained. — A leg at $24,700 — For what compensated — Chances of matrimony — Servants injured — Fellow servants — Different companies — Which one to sue — Strangers' acts — Greedy ruminant 88 CHAPTER XL BAOOAQE AGAIN. Epistolary model — Dog lost — Quitting a moving car — When liability for lug- gage commences — Goods of third party — Left in the car— Baggage lost — English rule — Limited liability — Personal luggage, what it is — Watch — Rings — Pistol — Railroad porter — Hotel 'bus — Tools and pocket pistols — Fiddles and merchandize — Farewell 107 CHAPTER XII. TELEGRAMS AND FIRE. Assault — Authority of officials — A dear kiss — Arresting passengers— Tele- graphic messages — Interesting examples — Who can sue for mistake — Fire-fiend's pranks — Train arrives, liability ooi^ses — Trunks in ware- house—Baggage left at station — Dissolving domestic view 11 c CONTENTS. BOOK SECOND.— BY STAGE. CHAPTER I. EVERYTHING MUST BE SOUND, AND EVERYONE CAREFUL. The reason why — Literature of stages — Off on wheels — Soundness warranted —Seats taken — Fare paid, either first or last — Damage to trunks — In- voluntary aeronautics — Passengers injured — Negligence of passengers, or of drivers — Carrier liable for smallest fault — Not insurers — Genuine acci- dents — Horses left standing — Driving and upsetting a friend — Pleasures of the weed and rural life 124 CHAPTER II. 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— On the wrong side — The laws of the road —Fatal indecision — lien on trunks — Reflections on lawyers 135 CHAPTER III. DINING, RAINING, LOSING AND ENDING. Must wait at stopping places — Place booked taken at any time — Falling in as- cending— Drenched with rain — Coachmen are common carriers andliable as such — Loss of money — Loss of luggage— Dangerous short cut— Safe arrival. 141 BOOK THIRD.— BY BOAT. CHAPTER I. HOTEL EXPERIENCES. A common inn-keeper and his duties — Choice of rooms — Limitation of liability — Act of Parliament — The view — The tea — Mine host responsible for losses — Kicking horses— Ferries and ferrymen — Lien on travellers — A midnight hunt — Entomological^A man pummelled 147 CONTENTS. CHAPTER II. LIFE ON THE ROLLING DEEP. Primitive steamers— Hole in the wharf— Passenger injured— Curiosity hunters hurt— Breaking of fender— A grievous case— Steamboats must carry all —Unless disreputable, disobedient or disgusting— Not up to time— Time the essence of contract— Behaviour at table— Ungentlemanly conduct- Sea sickness XI 161 124 135 CHAPTER III. THE AUTOCRAT ON BOARD SHIP. Calm after storm— Disreputable people on board— Landing passengers nolens yofena— Carriers responsible for eflfects of gravitation— Protection against fellow traveUers— Lost by fire, Imperial, American and Dominion statutes —Rocks and snags— Running on anchor — Authority of captain— Im- prisonment- Compelling passengers to fight or work— Too far— The Devil's Invincibles— Charge— Tennysonian stanzas 172 CHAPTER IV. lost! and last! Petty larcenies— Statutory exceptions to liability— Valuables— American rule —Lien on luggage— None on person-Pranks of rats and mice— Acts of God, of the Queen's enemies— No fare for newly bom babes— Dead men must pay— Horse overboard— Vessel overladen— Trunk given to wrong man— Owner retaining possession of baggage— Limiting liabiUty of carrier — Delivery to passenger— Proof of age— Pedestrians— Colliding— Tele- grams after missing baggage— The King's town— The resting place 1 82 TABLE OF CASES. PAOB. Abraham v. Reynolds 103 Accidental Death Ass. Co. v. Hooper 9 Aimea v, Stevens 178 Alden v. N. Y. Central Railway 74, 75 Aldworth v. Stewart 179 Alexanders. Toronto & Nipisuing Railw. 86 Allen V. London & S. W. Railway 64 Anderson v. Novth Eastern Railway 62 Armistead v. White 154 Armsworth v. South Eastern Railw. 91, 94 Ashby V. White 138 Aston V. Heaven 70, 131, 132 Austin 1 Grand Trunk Railway 82, 85 Ayles V. .'outh Eastern Railway 105 Baird v. Pettit Baltimore & Ohio Rail. 103 V. Breing 136 " V. State 42, 71 93, 95 Bancroft v. Boston & Worcester Railw. 93 Barnard v. Poor 99 Barrett ». Maiden & Melrose Railw. 37 " V. Midland Railwajr 15 Barrow v, Baltimore & Ohio Railw. 42 Bartholemew v. St. Louis, Jackson- ville, &c., Railway 121 Bartonshill Coal Co. v. Reid 3, 101 Batchelor v. Buffalo & Brantford Railw. 98 Bayley v, Lancaster Railway 63 " V. Manchester, &c., Railw. 116, 117 Beecher v. Great Eas;;ern Railway 109 Belfast, B. L., &c.. Rail v. Keys 114 Bennett v. Mellor 155 " V. Peninsula and Oriental Steamboat Co. 164 Benson v. New Jersey Railway 21 Bernstein v. Baxendall 183 Bilbee v. London* Brighton Railw. 15, 136 Birkett v. Whitehaven Junction Railway 95, 105 Bimey v. New York and Washington Telegraph Co. 120 Blackman v. London B. &. S. C. Railw. 24 Blake v. Midland Railway 90, 91, 96 Bojfgs V. Great Western Railway 14, 135 Boice V. Hudson River Railway 31 Bonner v. Maxwell 111 Boss V. Litton 3 Boston &; Lowell Railw. v. Proctor 32 Bowie V. Buffalo, Brantford&G. Railw. 121 PAGE. 177 179, 180 28 16 96 126 68 40 54 142 22, 31 112 110 85 145 31 101 13 Bowman e. Teall Boyce t». Bayliffe Bradley v. WaterhouEe Brand v. Troy & Syracuse Railway Bramhill v. Lee Biemmer v. Williams • Briddon v. Great Northern Railway Bvidftes V. North London, &c., Railway 17, Brien v. Bennett Eriggs v. Grand Trunk Railw. Brind v. Dale Bristol A Exeter Railw. v. Collins Brissell V. New York Central Brooke v. Pickwick 111, " V. Grand Trunk Railway Brown V. Maxwell " V. Railway Pass. Accident Co. Bruty V. Grand Trunk Railw. Ill, 113, 114 Bryant «. American Telegraph Co. 120 " V. Rich 170 Butcher v. London & S. W. Railw. 112 Burgess v, Clements 153, 154 " V. Great Western Railway 49 Burwell v. New York Central 121 Butler V. Basing 144 Butterfield t>. Forrester 78 Butterworth v. Brownlow 28 Buxton V. North Eastern Railway 106, 163 C. Cahill V. London and North Western Railway 114 Camden v. Great Southern and Wes- tern Railway 97 Camden and Amboy Railway ». Bal- dauf 28 " " V. Belknap 108 Camp V. Western Union Tel. Co. 120 Campbell v. Caledonian Railway 109 " V, Grarid Trunk Railway 122 " V. Great Western Railway 99 Canning v. Williamstown 92 Carpenter v. Taylor 153 Carpue «. London and Brighton Rail- way 71, 72 Carr v, Lancashire and York Railw. Ill Carrol v. New York and New Hamp- shire Railway 79 Carter v. Hobbs 155 Cashill V. Wright 154 HP XIV TABLE OF CASES. PAOE. 24 159 16 176 12 Caswell V. Boaton and Worcester R^way Cayle's case 153, Chaffee v. Boston and Lowell Bailw. Chamberlain v. West. Trans. Co. Champlin v. Traveller's Pass. Ins. Co. Chaplin V. Haines 6, 138 Cheney v. Boston and Maine Bail- way 31, 173 Chicago and Alton Railw. v. Roberts 44 '• and Aurora Railw. v. Thompson 27 " and North" Western Uailw ». Jackson 103 «« c( • „, Williams 39 " B. and Q. Railw. v. Hazzard 80 Chilton V. London and Croydon Railw. 45 Christie v. Griggs 73, 130, 131 Cincinnati Col. & Co. Railw. v. Bar- tram ' & Co. Railw. V. Rontius City of Chicago v. Major Clapp V. Hudson River Clark V. Gray Clay V. Willan " V. Wood 6, Cleveland v. Terry Cockle V. London and South-Eastern Railw. 50, 55 Cogge t). Bernard 84 Cohen v. Frost 188 " V. Hume 156 Colegrove v. New York and N. H. Railw. " V. New York and Harlem Railw. Coleman v. Southwick " «. South-Eastem Railw. CoUett V. London and N.-W. Railw. 71, 85 Collins V. Albany and Schn. Railw. 98 " V. Boston and Maine Railw. 114 Colorado and Ind. Railw. v. Farrel .52 Colt V. McMeachan 178 Commonwealth v. Power 143, 173 Converse v, Brainard 177 Coon V, Syracuse and Utica Railw. 103 Copley V. Burton 148 Coppin V. Braithwaite 173, 178 Cotton V. Wood Corbin v. Leader 168, Cornwall v. Eastern Counties Railw. 31 110 95 98 143 28 139 85 78 130 99 67 17, Crafter v. Metronolitan Railw. Craig V. Great Western Railw. Cranston v. Marshall Crocker v. New London, Will. Pat. Railw. Croft «. Allison Crofts V. Waterhouae Crosby v. Fitch Cross V. Andrews Crouch V. London and N. Western Railw. Cunningham v. Grand Trunk Bailw. 14 189 24 25 32 167 and 4a, 44 2 126, 131 177 155 28 106 PAOE. Curtis V. Drinkwater 133 " V. Grand Trunk Railw. 34, 41 " V. Rochester and Syracuse Railw. 99,105 D. Dale V. Hall 186 Dalton V. South-Eastem Railway 97 Damont v. New Orleans and Carolton Railway 35, 36 Dascomb v. Buffalo and State Line Railway 136 Davey v. Chamberlain 6 Davis V. Grand Trunk Railway 43 Davis V. Talcot 21 Dawson v. Manchester, S. and L. Railw. 71,72 " V. Chaunoey 152, 156 Dearden v. Townsend 44 Deedes v. Graham 27 Denton ». Great Northern Railway 20 Derby v. Philadelphia and Reading Railway 117 Detouchest). Peck 127 Dexter v. S. B. and N. Y. Railway 113 Dickenson v. Winchester 113 Dietrich v. Penn. A. Railway 31, 32 Dibble v. Brown 114 Dill V. Railway Co. 17 Doe V. Laming 148 Downs V. N. Y. and N. H. Railway 29 Duckworth v. Johnson 97 Dudley v. Smith 125) Duffy t). Thompson 27, 58, 111 Duke V. Great Western Railway 30, 34 Dunlop V. International Steam Co. 183 Dunn V. Grand Trunk Railway 80 Dwight V. Brewster 143, 144 £. Eaton V. Delaware, Lacka. & W. Railw. 80 Edgerton v. New York & Harlem Railw. 79 Edwards v. London & N. W. Railw. 118 Eldridge v. Long la. Railw. 36 Ellis V. American Telegraph Co. 120 " V. Grand Trunk Railw. 135 Ellsworth V. Tartt 104 Ernst V. Hudson River Railw. 136 Ewbank v. Nutting 177 F. Fairchild v. California Stage Co. 92 Farewell v. Boston A Worcester Railw. 101, 103 " V. Grand Trunk Railw. 30, 35 Farmers A Mechanics' Bank v. Champlain Transportation Co. 110 TABLE OF CASES. XV Famsworth v. Parckard Famworth v. Packwood FarriBh v. Reigle Faulkner v. Erie Railway Faulkner v. Wright PAGE. 154 154 131 103 177 Feaver v. Montreal Telegraph Co. 119 Fell V. KnijAt 148, 150 Feltham v. England 103 Ferrie v. Great Western Bailw. 96 Fisher*. Clisbee 188 Filton V. Accidental Death Ins. Co. 11 Fitzpatrick v. Great Western Railw. 100 Flint V. Norwich & N. Y. Transp.Co. 174 Ford V. London & South Western Railw. 71 " V. Monroe 100 Fordham v. London, Brighton & South Coast Railw. 67 Forshaw v. Chabert 177 Forsyth v. Boston, &c., Railw. 24 Forward v. Pittard 176 Foy & Wife v. London B. & S. C. Railw. 52 Franklin v. South Eastern Railw. 97 Frazer v. Pennsylvania Railw. 101 Frink v. Potter 70, 129, 130 Frost V. Grand Trunk Railw. 47 Fuller V. Talbot 75 Fulton V. Grand Trunk Railw. 38, 40 G. Galena & Chicago Union Railw. v. Loomis 15, 136 Galena & Chicago Railw. v. Yarwoad 80 Gamble v. Great Western Railw. 58, 59 Gibbon v. Paynton Gibbons v. Pepper Gilbert v. Bertenshaw Giles V. Fauntleroy " V. Taff Vale Railw. Gillenwater v. Madisou & Indian. Railw. GiUshannon v. Stony Brook Railw. Gillivard v. Lancaster & Yorkshire Railw. Glover t). Itondon & South Western Railw. Godderd v. Railway Goff V. Northern Railw. Goldey v. Pennsylvania Railw. Goodman v. Taylor Gough V. Bryan Grace V. Morgan Grant v. Newton Great Northern Railw. v. Harrison 28 4 99 114 117 85 103 91 Great Western Bailw. 43 170 117 105 132 128 99 27 85 Shepherd 26, 110, 112, 114 Blake 104, 106, 163 V. Fawcett V. V. Greenland v. Champloin V. Chaplin Grieve v. Ontario &, St Lawrence Steam Co. Grimston v. Innkeeper Grippen v. New York Central Bailw. H. Hageman v. Western Bailw. Htdlv. Power Hamlin v. Great Northern Railw. Hammond v. White Hankel v. Pape Hanover Railw. v. Coyle Harold v. Great Western Railw. Harris v. Costar " *. Rand Harrow v. White Hart V. Windsor " V. Rensselaer & Saratoga Railw. PAGE. 137 174 V. Braid Great Western of Canada v. Brand Great Western Bailw. «. Gbodmau 89 89 84 58 1&^ 155 136 72 173 21 71 119 100 54 130 177 4 159 65, 110 136 39 Havens v, Erie Railw. Hawcroft v. Great Northern Railw, Hawkins v. Hoffman 58, 112, 113 Hawthorns;. Hammond 148 Hearle v. Ross 176 Heamt;. London & South- Western 18o, 188 Heim v. McCaughan 20, 166 Hewlett V. Crucn 99 Hickox V. Nangatuck Railw. 108 Hicks V. Newport, A. & H. Railw. 96 Higgins V. New York & Harlem Railw. 78 Hodsall V. Stallebras 99 Hogan V. Providence & W. Railw. 42 Holbrook v. Utica & Sch. Railw. 66 HoUenbeck v. Berkshire Railw. 93 Holly t). Boston Gas Light Co. 8;^ Holmes v. Clark 101 " V. Doane 42 Hood V. New York & N. Ham. Bailw. 104 Hooper v. Accidental Death Ins. Co. 10, 12 Homer v. Wood 21 Hopkins V. Atlantic & St. Lawrence Railw. Hopkins v. Westcott Howell V. Jackson Howland v. Brig Lavinia Hudston V, Midland Railw. Hunter v. McGowan Huntsman v. Great Western Railw Hurd V. Vermont & Canada Railw. Hurton v. Dibbin Hutchinson v. York, &c., Bailw. Hurst V. Great Western Railw. Hutton V. Bolton Hyde v. Trent & Mersey Navig. Co. I, Illinois Central Bailw. v. Abell V. R«ad 99 114 148 127 60 175 43 101, 103 183 101 21,38 143 176 35 85 XVI TABLE OF CASES. PAOE. Indiana Central Bailw. v. Mundy 85 Indianapolis & Cincinnati Railw. v. Ru- therford 66 Indemaur «. James 162 Ingalls V. Bills 36, 75, 126, 129, 130 Iiiman v. Buffalo & Lake Huron Bailw. 121 J. James v. Great Western Railw. 15 Jencks v. Coleman 143, 165 Jenkins v. Biddulph 99 Jennings v. Great Northern Railw. 29, 44 Joel V. Morrison 2 John V.Bacon 104,162 Johnston v. Northern Railw. 135, 136 Jones V. Boyce 126, 129 " V. Voorhes, 111, 143 Jordan v. Fall River Railw. 27 K. Kay V. Wheeler 184 Keegan v. Western Railw. 101 Keith V. Pinkman 130 Kenvard v. Benton 138, 139 Kent V. Midland Railw. Ill " V. Shuckard 154 Ker V. Mountain 126, 141 King w. Franklin 179 Knight V. Ponchartrain Railw. 55 V. P. S. & P, RaUw. 114 L. Lackawanna «. Cheneworth 130 Laing v. Calder 66, 71 Lamb v. Palk 2 Lambeth v. N. Carolina Railw. 56 Latch V. Rimmer Railw. 105 Laugher v. Forester 6 Lawrenceburgh and Upper Miss. Railw. V. Montgomery 80 licCouteur v. London & South-West- ern Railw. 58, 109 Leslie v. Canadian Inland Navigation Co. 175, . 176 Lewis & Wife V. London, C. & D. Railw. 55 2 119 18 126 16 103 143 91 Limpus V. London Omnibus Co. Lockwood V, Ind. Line of Tel. Co. Loker v. Inhabitants of Brookline Long V. Home Longraore v. Great Western Railw. Louisville & N. Railw. v. Collins Lovett V. Hobbs. Lucas V. New York Central Railw. ' ' V. Taunton & New Bedford Railw. 36, 108 Lygo V. Newbold 142 Lynch v. Smith 83 Lyon V. Mills 177 M. PAGE. Macon & Western Railw. v. Johnson 9^ Macrow v. Great Western Railw. 61, 111, 113, 114 Mallory v. Travellers' Insurance Co. 9, 11 Manser v. Eastern Counties Railw. 72 Marshall v. York, N. & B. Railw. 108 Martin v. Great Northern Railw. 49 Martin v. Travellers' Insurance Co. 10 Mayor ». Humphries 128 Meir v. Pennsylvania Railway 75 Memphis &c.. Railway v. Whitfield 55 Mershon v. Hobensacfc 176 Michael v. Alistree 4 Miles V. Cottle 144 " V, James 155 Minor v. Chicago & North Western Railway 122 Mississippi Central Railw. v. Kennedy 111 Mitchell V. Cressweller 2 Mobile & Chicago Railw. u, Hopkins 108 Motfatt V. Bateman 133 " V. East India Co. 186 Moore v. Auburn & Syracuse Railw. 92 " V. Metropolitan Railway 117 Morel t>. Mississ. Valley Ins. Co. 12 Morgan v. Ravey 153, 156 V. Vale of Neath Railway 102 Moriey v. Great Western Railway 97 Mo)rison v. Eiuropean & N. American Railway 191 Mote V. Chicago & North Western Railway 121 Mouse's case 187 Murray v. Metropolitan District Railw. 65 Muschamip v. Lancaster & Preston Junction Railway 110 Mutton V. Midland Railway 114 Mytton V. " " 105 McAndrew v. Electric Telegr. Co. 118, 120 McCawley v. Fumess Railway 86 McCormickt). Hudson'River Railw. 104, 111 McDonald v. Chicago and North Western Railway 23, 47, 49 McGiU «. Roward 111 Mclntyre v. New York Central Railw. 80 McKay ». '• " " 136 McLure v. Philadelphia, Will, and Bait. Railway 31 McManus u Crickett 2 McPadden v. New York Central Railway 71, 73, 75 N. New Jersey Railw. v. Kennard 66 New Orleans, &c., Railw. v. Hurla 166 New York A Wash. Printing Tel. Co V. Dryburgh 118, 120 Newman v. Walters 179 NichoUs V. Great Western Railw. 1.35, 137 Nicholson v, Lancashire & York Railw. 49' TABLE OF CASES. XVU PAOE. Nolton V. Western Railway 85 North America Insurance Co. v. Burroughs 11 North Pennsylvania Railw. v. Mahoney 8.1 Noyes v. Rutland & Burlington Railw. 117 O. Oakley v. Portsmouth & Ryde Steam Packet Co. 177 Ohio and Mississippi Railw. v. Muhling 84 " " V. Schiebe 55 Oliver v. North Western Railway 16 O'Neil V. Great Western Railway 121 Oppenhcim v. White Lion Hotel Co. 154 Orange Co. Bank e. Brown 27 Ormond v. Holland 101 Osborn v. Grillett 27 Ouimet v. Henshaw Oxlade, in re 61,122 20 99 60, 114 136, 139 1.S2 147 177 3 177 112 96 135 84 36 93 42 1^2 38 85 Pack V. Mayor of New York Pardee v. Drew Parker v. Adams " V. Flagg " V. Flint Parsons v. Hardy Paterson v. Wallace Pennewell v. Cullen Peixotti V. McLaughlin Pennsylvania Railway v. Adams V. Beale V. Books " " V. Kilgrove V. McClosky " " V. Vandiver Penton v. Grand Trunk Railway People r. Tillson Peoria Br. Ass. Co. v. Loomis Phelps V. London & North Western Railway 59, 114 Philadelphia & Reading Railway v. Derby 85, 117 Philleo V. Landlord 143 Pier V. Friel 31 Pittsburgh A. & M. Railw. v. Pearson 83 " Fort Wayne, &c. Railw. v. Hinds " Fort Wiiyne, &c. Railw. v. Maurer '• & H. W. Railw. V. Dunn Plant V. Midland Railway " V. Grand Trunk Railway Playford v. United Kingdom leiegraph Co. 119 Pluckwell V. Wilson 6, 138 Porter v. Hildebrand 113 Porterfield t). Humjjhreys 186 Poulton V. London & South Western RaUw. 118 B 39 105 136 54 102 PAGE. Powell V. Mills 157 Praeger r. Bristol & Exeter Raiiw. 51, 54 Prendergast v. Compton 170 Priestly V. Fowler 101, 102 Providence Life Ins. & Inv. Co. v. Fennel 11 Providence Life Ins. A Fire Co. v. Martin 9,11,12 Pym V. Great Northern Railw. 91, 96, 97 P. & C. Railway r. McClurg 66 Q. Queen, The, v. Frere Quam^Q V. Burnett R. Railway Company r. Aspell " V. Barrow Ranch v. Lloyd Read v. Great Eastern Railw. Readhead v. Midland Railw. Redpath v. Vaughan Reid V. Great Northern Railw. Rex V. .Jones Richards v. London, Brighton & S Richardson »'. Railw. 44 6 36 95, 105 82 96 74 177 72 148, 149 C. Metropolitan Railw. North Eastern Railw, 58,109 Richmond v. Smith Rigby V. Hewitt Ringland v. Corporation of Toronto Ripley v. Railway Passengers Absur. Co. Ripsley v. Railw. Pass. Ass. Co 67 108, 186 154 137 18 Rittenhouse v. Independent Line of Tel 12 9 Co. Robertson v. New York & E, Railw. Robinson v. Bletcher V. Cone " t>. Fitzburgh & Worcester Railw. " V. Dunmore H3, 145 " t'. Great Western Railw. 21 Rock Island & Pacific Railw. v, Fair- clough Roe V. Birkenhead, &c. Railw. Ross V. Hill Roth »'. Buffalo & State I>ine Railw. Rowley v. London & North Western Railw. 119 79 132 78 78 121 2 112 122 95 S. Sanback v. Thomas 99 Sawyer v. United States Casualty Co. 10 SchiefHen v. Harvey 188 Schneider i'. Prov. Life Ins. Co. 12 Secord v. Great Western Railw. 94, 97 Sellers v. Western Union Tel. Co. 120 XVUl TABLE OF CASES. FAOE. Senecal v. Richelieu Nav. Co. 187 Seymour ». Greenwood 2 Sharp V. Gray 126, 130, 178 Shaw V. Boston k Worcester Railw. 99 " V. Grand Trunk Railw. 114 Shedd V. Troy & Boston Railw. 32 Shepherd v. Bristol and Exeter Railw. 121 " V. Midland Railw. 18 Simmons v. New Bedfordshire, &c. Stage Co. 174 Sinclair v. Maritime Pass. Ass. Co. 8 Sinerr. Great Western Railw. 23, 53, 55 Singleton v. Eastern Counties Railw. 83 Skeiton v. London & North Western Railw. ;4, 136 Skinner «. London, Brighton and S. C. Railw. 72, 73, 85 Sleath V. Wilson 2 Smith V, Accidental Ins. Co. 11, 12 " V. Dearlove 157 " V. Great Eastern Railw. 37 " V. Marrable 158 " V. New York and Harlem Railw. 95 Smyrl v. Molin 177 Snow V. Housatonic Railw. 103 Southard v. Railway Pass. Ass. Co. 10 Southern Express Co. v. Shea 110 Southern Railw. v. Kendrick 66 Sprague v. Smith 104, 105 Springett v. Ball 97 Stallard v. Great Western Railw. 62 Stanton v. Waller 131 Stapley v. London, Brighton and S. C. Railw. 15, 16 St. John r. Pardee 178 State V. Baltimore & Ohio Railw. 96 State V. Campbell 31 " f. Gould 44 " V. Grand Trunk Railw. 46 " V. Overton 31 Steves V. Oswego & Syracuse Railway 16 Stokes V. Cardiff Steam Navigation Cfo. 37 " V. Saltonstall 36, 126, 129, 131 Story V. New York & Harlem Railw. 21 Stout V. S. C. & P. Railway 83 Stove V. United States Casualty Co. 11 Stuart V. Crawley 107, 186 Stubley v. London & North Western Railway 15, 136, 137 Sunbolf V. Alford 140, 157 Sutherland v. Great Western Railway 86 Sutton V. Temple 159 Sweetland v. IlUnois &c. TeL Co. 120 T. Talley v. Great Western Railway 58 Tarrant r. Webb 101 Taylor v. Humphries 148 Tebbutt V. Bristol & Exeter Railway 37 Teimiery v. Peppinger 105 Thatch V. Great Western Railway 73 Thayer v. St. Louis &c. Railway Theobald v. Railway Pass. Ass. Co. Ham- C. FAOE. 103 9,10, 11 104 137 91 40 Thomas v. Rhymney Railway Thorogood v. Bryan Tilley v. Hudson River Railway Tolandv. " " " Toledo & Wabash Railway v. mond Tooley v. Railway Pass. Ass. Co. Toomey v. London, Brighton & S, Railway Torrance v. Smith Tower v. Utica & Schenectady Railw, 58, 110, 145 Treadwin v. Great Eastern Railway 183 Trent Navigation Co. r. Wood 177 Trew V. Railway Pass. ^ss. Co. 11, 12 True V. International Telegraph Co. Tunney v. Midland Railway Tyler v. Western Union Tel. Co. Tyson v. Grand Trunk Railway Two Friends, The 114 12 25 176 120 102 120 136 179 U. United States Telegraph Co. v. Gilder- sleeve 120 V. Vanhom». Kemiet 108 Van Lantvoord v. St. John 110 Van Toll v. South Eastern Railway 62 Venton v. Middlesex &c. Railway 39 W, Wakeman v. Robinson 4 Walker v. Great Western Railway 49 " V. Jackson 28, 143, 127 Wann v. Western Union Tel. Co. 118, 120 Wanless v. North Eastern Railway 16 Warner v. Erie Railway 103 Warren v. Fitchburg Railway 48 Watbrooke v. Griffith 155 Watson V, Ambergate &c. Railway 110 '• V. Northern Railway 79 Wayde v. Carr 138 Webb V. Sage 143 Weed V. Saratoga & Sch. Railway 27 Weeds v. Saratoga Railway 105 Weems v. Mathieson 101 Weld V. Hudson River Railway 16 Welfare v. London & Brighton Railw. 17 22 Weller v. London Brighton & S. C. Railway 55 Welles V. New York Central Railw. 85, 86 Westchester Railway v. Miles 39 TABLE OF CASES. XIX PAGE. 105 Co. 9, 10, 11 104 137 91 40 C. 114 12 102 120 136 179 Western Union Telegraph Co. v. Carew 120 Wheatley v. Patrick g Whitaker v. Manchester & S. Railway 62,54 143 83 156 99 101 90 7,14 177 i 58 . 41 WiUougliby V. Horridge 156 Wilton V. Atlantic lioyal Mail Steam Nav. Co. 138 Wilsons «. Hamilton 156 Wmckler v. Great Western Railway w^i* Q 136, 137 ■ Wolf V. Summers ijo 134 Woodward v. Eastern Counties Railw.' 29 White V. Bolton "^ V. North Eastern Railway V. Winniesinick Co. Whitney ». Clarendon Wiggett V. Fox Willetts V. New York & Erie RaUw. Wilhams v. Richards " V. Grant " V. Great Western Railway WiUiamson v. Grand Trunk Railway WiUis V. Long Island Railway Woods V. Devon WoodruflFi; Great Western Railway Woolley V. Sewell "' Wordsworth v. Willan Worley v. Cincinnati, H. & D. RaUw Wright V. CaldweU *' V. Midland Railway V. Maiden & M. Railway V. New York Central RaUw. Wyld». Pickford 1^5 PAfiK. ll.J .{ (i 91 187 105 83 Yarborough v. Bank of England Yates V. DuflF Young V. Fewson " V. Smith Z. Zemp V. W. & M. Railway Zung V. South-Eastern Railway. 117 l(i6 168 189 7R 110 120 108 110 T 62 39 4 49 43, 127 18,120 16 103 48 155 110 79 138 143 27 105 101 16 Iw. 17 22 55 V. 85, 86 39 r^ 'f WRONGS AND RIGHTS OF A TRAVELLER BOOK FIRST.— BY RAIL. .-■ " Yet John says he told the man to get out of the way, and he wouldn't do it ;" pleaded my wife. "That does not matter.'^ I hope no more damage was done?" I queried. " Yes : the horse shied and upset the sleigh ; and John says that all his — I mean John's — ribs are broken, and that he is kilt entirely and he swears that he'll make you pay for it — that he'll sue you." " Let him sue away and be hanged ; he'll get nothing for his pains but the pleasure of spending his earnings : he is my servant and has to run the risk of being hurt in my employment."* " But then, Eliza Jane, the housemaid, was with him, was thrown out too and had all the skin taken oif her face ; and she says she'll sue too." " Oh, I'm sorry for that : I like her, and then she was so pretty." " Eldon ! how dare you say so — to your wife too ! " " I — T — only meant that I would have to pay for the damage to her, and that if I did not do it willingly any jury would be persuaded by her pretty face to gi>e a heavy sum against me for the injury done to her by my servant.* Well, 'tis a pretty how- do-ye-do for a New Year's gift. I'll go down and see the wretch." Off I went glad to get out of Elizabeth's sight : she had grown a little jealous because I had shown a few trifling civilities to pretty Eliza Jane — very trifling they were, I assure you : besides 1. Bo$s V. Litton, 5 C. & P., 407. 2. Woolley v. Seovell, 3 M. & Ry, 106. 3. Paterton v. Wallace, 1 Macq. 751. 4. Lord Cranworth, Bartonthell Coal Co. v. Bnd, 3 Macq., 294-307. IT l)j| 4 WRONGS AND RIGHTS OF A TRAVELLER. I wanted to vent my rage on the man John. In a very short time some words and phrases were used in the yard to which, doubtless, Moses would have objected, if he had the first table of stone in his hand : my ire, however, cooled down in time when I found that the man was " all serene," and that all the trouble had been caused by the horse having taken fright at the fall of a lot of snow and ice off a house-top — a circumstance over which, of course, I had not the slightest control ; and therefore I was not liable to Dr Bolus, the old man, nor to pretty Eliza Jane.' But to make matters all straight I gave my man a couple of dollars, and meeting E. J. on the back-stairs as I went in I chucked her under her dimpled chin, and told her that crying would make her pretty eyes look red and swollen ; and then retiring to my library read up all the cases bearing on the subject, beginning with the old case of Michael v. Alistree^ where the defendants " in Lin- coln's Inn Fields, a place where people are always going to and fro about their business, brought a coach with two ungovernable horses, et ex improvide, incaute et absque consideratione inapti- tudinis loci, there drove them, &c., and the horses, because of their ferocity, being not to be managed, ran into the plaintiff, and hurt and grievously wounded him," and the plaintiff got damages as well as damaged. At the appointed hour my friend and young brother-in-the-law, Tom Jones, arrived. As he sank into one of the softest of our draw- ing-room chairs, and gazed around, he exclaimed. " By Jove, Eldon, you look so snug and cosy here that I am half inclined to follow suit, quit our bachelor's hall, marry a nice little girl I wot of and settle down." " Do so at once," said my wife. " Ah ! I cannot forget the words of that good old judge, Sir John Moore ;" he replied with a sigh. 1. Wnkman v. Bobinsim, 1 Bing., 213; Harrnw v. White, 11 C.B., N.S., 688 ; Oib- bont V. Pepper, 1 Ld. Raym. , 38. . 2. 2Sev.,172; 1 Ventr. 295. DRIVING. 5 Sir Gib- " Oh, you are as bad as Eldon, always quoting some fusty old • judge. But what did he say ? " queried my wife. " He said that he would compare the multitude of women who are to be chosen for wives unto a bag full of snakes, having among them a single eel. Now, if a man should put his hand into this bag, he might chance to light on the eel, but it is one hundred to one he would be stung by a snake," returned Jones. " The horrid old wretch. I am sure I was neither a snake nor an eel : was I Eldon ? I hate both." " Oh, no, my dear," I replied. " But Tom, that surely is only an obiter dictum, not a decision of that worthy judge." " Of course," replied Jones ; " but all the dicta of judges are entitled to weight." Tom had just been called to the bar. " Here's the sleigh at the door ; and you two horrid men may go now," said Mrs. L. " Is your life insured against accidents, Mr. Jones ?" she added ; "for you are sure to be run away with and upset." " Only against railway accidents," he said. " That's stupid," I remarked, "for it is well settled that hardly seven per cent, of accidental claims arise from accidents in travel- ling by rail or water, while those arising from horse or carriage injuries exceed in number those from all other causes combined." " A plea.sant idea wherewith to start for an afternoon's drive :" quoth Tom. And off we went, bells jingling, horse prancing, dog barking, all joyous with the ediilarating influences of frost rnd sunshine. " Look here, old fellow," said Tom, " your horse seems pretty skittish to-day : let us settle the law as to our mutual liability for damages before we run into anything. Who will have to pay ? you don't seem veiy much accustomed to driving." " Never mind that. The law is clear ; as you are merely a pas- senger in my sleigh, you are not responsible for any misconduct of which I may be guilty while driving — you have nothing to do WRONGS AND RIGHTS OF A TRAVELLER. with the concern/ Even if I had only borrowed the turn-out, and kindly let you take the ribbons, I still would be the party re- sponsible for negligence."^ "That's satisfactory," returned ray friend. " But would it not he different if we had both hired the horse and cutter ? " " Quite correct Mr. T. J. : your store of legal lore is rapidly ac- cumulating. In the case you put, both of us would be equally Answerable for any accident arising from the misconduct of either whilst it was under our joint care,'' and if we had hired the hoises to draw my sleigh and had likewise obtained the services of a driver, then we would not be liable for the negligence or careless- ness of that driver."* " Look out, you had better keep on your own side of the road," said Jones. "Never mind I can go on either side, I'll only have to keep my eye a little wider open to avoid collisions f besides there is plenty of room for any person to pass, so he would have only him- self to blame in case of accidents."* " A person approaching you might think there was not sufficient space." " If an accident happens it will be a matter of evidence whether I have left ample room or not,' so you can look about you and see." " But suppose some fiery steed was to run into yours ? " urged Thomas. " My being on the wrong side would not prevent my recovering against a negligent driver, as long as there is room for him to pass without inconvenience.* Whoa, old fellow," T cried, just as I 1. Davey v. Chamberlain, 4 Esp., 229. 2. Wheatky v. Patrick, 2 M. & W., 650. 3. Davetf v. Chamberlain, 4 Bsp. , 229. 4. Laugher v. Foriiter, 5 B. AC, 547 ; Quarman v. Burnett, 6 M. & W., 499. 6. Pluckmll V. Wilion, 5 t. & P., 375. 6. Chaplin v. Hawet, 3 C. & P., 554. 7. Wordsworth v. Willan, 5 Esp., 273. A Clai/ V. Wood, 5 Esp., 44. DRIVING. was on the point of running over a philosopher who was walking slowly over a crossing gazing up at the azure vault of heaven. " What a stupid donkey ; it is as much his business to be watch- ful and cautious that he does not get under my sleigh, as it is mine that my sleigh does not get over him ! " " By the way," said Jones, *' have you seen that anecdote told by Erskine about Lord Kenyon, and which has recently been brought to light ? " " No. Has it anything to do with driving ? " "Everything. Kenyon was trying a case at the Guildhall and seemed disposed to leave it to the jury to say whether the plain- tiff might not have saved himself from being run into by the de- fendant by going on to the wrong side of the road, where — accord- ing to the witnesses — was ample room; so Lord Erskine in addressing the jury said : * Gentlemen, — If the noble and learned judge, in giving you hereafter his advice, shall depart from the only principle of safety (unless where collisions are selfish and malicious), and you shall act upon it, I can only say that I shall feel the same confidence in his lordship's general learning and justice, and shall continue to delight, as I always do, in attending his administration of justice: hut I pray Ood that I may never meet him on the road!' Lord Kenyon laughed, and so did the jury, and in summing uj) the judge told them that he believed it to be the best course stare super antiquas viaa," " Not so bad ! " On and on we drove, the very air seemed alive with the tintin- nabulation that so musically wells from the jingling and the tink- ling of the bells in the icy air of winter. 1. Williams v. Richard 3 C. & K., 81, CHAPTER II. INSURANCE. What's an accident ? — Major via — Exposure and death — Wholly disabled — What can be recovered — Heavy weights — Stumbling— Pitchforked — Change of business — Lost beneath the dancing waves — A man not a private conveyance— Carelessness. SHORTLY after the events related in uiy last chapter, business called me away from home. Accidents by rail — explosions, collisions, over-turnings, exploits of the fire-fiend — had become so much the reverse of angel's visits that though some said I had the hanging mark upon me, I determined to make assurance doubly Bure and take a bond of fate in the shape of an " accident ticket ;" not that hope told a flattering tale, or that vain expectations of making anything by the transaction filled my soul, but as a pre- ventive rather than a cure, for accidents seldom happen when one is prepared, as showers seldom descend when one is armed cap-a-pie with umbrella and thick boots. Ere spending my twenty cents, however, I determined to find out what an accident, within the meaning of the ticket, really might be ; but 1 discovered that no satisfactory definition of the word had ever been given by the courts. Cockburn, C. J., says that it means some violence, casualty, or vis iniajor ; and that disease or death generated by exposure to heat, cold, damp, the vicissitudes of climate or atmospheric influences, cannot be called accidental ; unless, perhaps, where the exposure is actually brought about by circumstances which might give it the character of accident — as a shipwrecked mariner dying from exposure to cold and wet in a small boat upon the roaring, raging ocean.' This 1. Sinclair v. Maritime Pa»», At». Co., 3 El. & E., 478. •0 INSURANCE. 9 decision settled that I could recover nothing if my nose or my toes were frozen off; nor if my early demise was brought about by croup, measles, or small-pox, caught in the cars, could my family recover any remuneration for the loss of the house-band. If, like the good Samaritan's friend, I should chance to fall among thieves, who should strip me of my raiment, wound me and depart leaving me dead, that, probably, would be considered a death by violent and accidental means, for Judge Withey, of Michigan, has laid it down that an accident is any event which takes place without the foresight or expectation of the person acted upon or aflf'ecti i by the event.^ In Maryland it has been defined as an unusual and unexpected result attending the perfoi'mance of a usual and necessaiy act ; and there it has been decided that every injury caused by accident, save those specially excepted by the policy, are covered by it.'^ And in New York an accident is said to be something which takes place without any intelligent or apparent cause, without design and out of course.^ I was pleased to find that I might recover for a " railway acci- dent," if anything happened to me while travelling by the cars, although nothing happened to the train, for instance if while getting out after the cars had stopped I should slip, fall and in- jure myself, not through any negligence of my own, but because the steps were slippery.* Where compensation to the insured is granted " in case of bodily injury of so serious a nature as wholly to disable the assured from following his usual business, occupa- tion or pursuits," I would be entitled to pay if so disabled that I could not get to my office to work, although I were well enouoh to transact business in my own bedroom, or clad in a robe de nvit instead of a professional toga.'' For total disability from 1. Ripsley v. Rw, Pas. Ass. Co,, 2 Bigelow, Ins. Casee, 738. 2. ProvL Life Ins. Co. v. Martin, 32 Maryland, 310. W. Mallory v. Travellers Ins. Co., 47 N.Y., 52. 4. Theoftald v. Ew. Pass. Ass. Co., 10 Ex., 45. 5. Accidental Death Ass. Co. v. Hooper, 5 H. & N., 540 ; affirmed on Appeal, 5 H. i N., 557. 10 WllONGS AND RIGHTS OF A TRAVELLER. the prosecution of one's usual employment means inability to follow one's usual occupation, business or pursuits in the usual way:* ie.-e.g., a farmer who can do nothing but milk, and a merchant who can only keep his books, are totally disabled with- in the meaning of such a provision as the above.^ To be wholly or quite disabled is to be unable to do what one is called upon to do in the ordinary course of business, and this is by no means the same thing as being " unable to do any part of one's business." The decided cases made it clear that I could recover only for the personal expense and pain occasioned by the accident, and not damage for loss of time or of profit occasioned thereby : and also, that if I insured my life for only $1000, it could not be assumed that my life was worth only that and nothing more, and an in- jury sustained estimated at a proportionate sum.* I also as a result of my researches learnt the following. If a policy provided that the "company would be responsible for acci- dents operating from external causes, I would get something if I injured my spinal marrow by lifting my trunk :^ but it would appear that rupture caused by jumping from the cai-s while in motion and afterwards running to accomplish certain business, done voluntarily and in the ordinary way, and without an}- necessity therefor, and with no uiiforseen or involuntary move- ment of the body, such as stumbling, or slipping, or falling, is not caused by violent or accidental means. Though it might be other- wise if in jumping I should lose my balance and fall, or strike some unseen object, or in running should stumble or slip." If, while on my travels, I should take to amateur farming (not the most likely thing in the world, bucoHc desires not filling my soul and the thermometer being down below nothing,) and while pitching 1. May on Insurance, p. 644. 2. Sawyer v. United States Casualty Co., 8 Law Reg., N.S., 233. 3. Per Wilde, B., .looper v. Accidental Death Ins. Co., 5 H. & N., 646. ' T/ieohaldv. Rw, Travellers Ins. Co,, 10 Ex. 45. '. Ta^in V. Travellers Ins. Co., 1 F. & F., 505. J^'uthardv, Rw. Pass. Ass. Co., 34 Conn., 574. % INSURANCE. 11 hay let the handle of the pitchfork slip and pitch into my bowels, producing thereby peritoneal inflammation, whereof I should die, that would be an accidental death !' Nor wouM the casual change of occupation from the pursuits of the forum to that of the field, forfeit my right to recover.'' Where an accident produced hernia, which caused death, it was held that the death was nol within the exception of the policy which provided that the com- pany did not insure against death or disability arising from rheu- matism, gout, hernia, &c.' If I should go in bathing and die from the action of the water^causing asphyxia, that, too, would be a death by external violence within the meaning of the policy, whether I swam out too far, struck my head against a rock in diving, or — unskilled in the natatorial art — got out of my depth ; but if I succumbed to an attack of apoplexy while taking the bath, that would not be a death from accident.* A provision that no claim is to be made under a policy, except in respect of an injury caused by some " outward and visible means," applies only to non-fatal injuries.^ I found also, that it was legally correct — however paradoxical it may appear — to say that I was travelling in a carriage when in fact I was actually alighting therefrom :" and that I would be " travelling in a carriage provided for the transportation of pas- sengers," if, while in the prosecution of my journey, I walked on foot, as passengers are wont to do from one station to another. The courts, ever ready to interpret a policy in the way most ad- 1. N. Amerimn Ins. Co. v. Burrouglis, 69 Penn. St., 43. 2. Admins, of Stone v, U. S. Casualty Co., 34 N.J., 371; N, A. Insurance Co. v. Burroughs, supra ; Provident Life Ins. Co. v. Fennel, 49 111., 180 ; Pro. Life Ins. & Inc. Co. V. Martin, 32 Ind., 310. 3. FHtton V. Ace. Death Ins. Co., 17 C.B,, N.S., 122 ; but see Smith v. Ace. Ins. Co., 22 L. J., 861, a case of erysipelas. 4. Trew v. Railway Pass. Ins. Co., 5 H. & N., 211, affirmed on Appeal, 6 H. & N., 839. 6. Mallory v. Travellers Ins. Co., Ct. of Appeals, 47 N.Y., 52. 6. Theobald v. Rw. Pats. Ass. Co., 10 Ex., 44. I If 12 WRONGS AND RIGHTS OF A TRAVELLER. vantageous to the insured/ will not allow " travelling in a public conveyance" to be construed literally, and if an accident happens while one is getting off or on a train, or attempting to do so for any reasonable purpose, it comes within the terms of a policy insuring against accidents while travelling by public con- veyance.'^ Mr. John Wilder May (who has written a large book on Insurance,) thinks that, perhaps, in a reasonable and sub- stantially accurate sense a man may be said to be travelling by public conveyance, when he is prosecuting a journey by rail or boat, whether he is sitting still in a motionless car, or standing serenely on the station-platform, or walking to and fro thereon waiting for a start, or going into a station for prog, or returning therefrom after having grubbed,* although Chase, C. J., held that a man who had performed the greater part of a journey by steamboat and, there being no public conveyance, proceeded on foot to his house some miles distant from the port, could not exactly be said to be a private conveyance to himself while walk- ing.^ A poor fellow away down in Kentucky inadvertently and need- lessly put his arm out of a car window and had it injured by being bumped against a post, and the court held the injury not accidental, being attributable to the person's own negligence.^ But as this case stands alone it will scarcely answer to point a moral or adorn a tale, and the better opinion seems to be that contributory negligence is no defence, as the liability rests upon contract, one of the chief objects of which is to protect a man against his own carelessness or negligence." But one must 1. Hooper v. Accid. Death Ina. Co., 5 H. & N, 545 ; 6 i6., 839 ; Smith v. Ace. Int. Co.y per Kelly, C.B., supra. 2. Tooley v. Rw. Pass. Ace. Ins. Co., 2 Ins. L. J., 275. a. May on Insurance, p- 661. 4. Ripley v. Rw. Pass. Ass. Co., 15 Wall (U.S.), 680. 5. Morel v. Mississippi Valley Life Ins. Co., 4 Bush (Ky.), 535. 6. Providence Life Ins. Co. v. Martin, 32 Md., 310 j Trew v. R%v. Pass. Ins. Co., 6 H. & N., 839 ; Schneider v. Providence Life Ins. Co., 24 Wis., 28 ; Champlin v. Travellers Pass. Ins. Co., 6 Lansing (N.Y.), 71. j INSURANCE. 13 not be guilty of wilful and wanton exposure of himself to un- necessary danger, for instance he must not ride on the engine' or attempt to cross the track when an approaching train is within fifty feet."' I was now assured that to be insured was sure to bring content- ment if not I'iches. 1. Brown v. Hw. Pass. Ass. Co., 45 Mo,, 221 ; May p. 657. 2. May on Insurance, p. 667. CHAPTER III. STATIONS AND STARTING. Meditations on crossings — Bell or whistle — Access to stations — Slippery ice- Checks on trunks — Notice of arrivals and departures — Trains late as usual — Must keep time — Damages, damages — Proof — 111 fared Welfare — Wait- ing rooms not smoke-houses — Charge of the iron horse — Tripped up. HAVING settled the insurance question to my own satisfac- tion, and purchased both a railway and an accident ticket, as the proper hour for the departure of my train appioached, I started bag in hand, being minded to go afoot to the station. " As I walked by myself, I talked to myself and myself replied to me, and the questions myself then put to myself with the answers, I give thee," my would-be-wise reader. Coming upon the railroad where it ran close to a house which hid the line on one side completely from view, I was rather startled by a freight train dashing past within a few feet of my nose, and I asked myself: " Should not a bell have been rung ?" and I replied: "Yes, wherever a train crosses a highway there the bell should be rung or the whistle sounded ; and no engine should have gone at such a speed." " Should not the company place a watchman at a crossing to warn pedestrians of the approach of trains ?" the answer that came was, " I fancy not, for prima facie, a foot passenger crossing a railway is bound to look out for his own safety ;^ just as it is his duty to use due care and caution in crossing a street, so as not recklessly to get among the carriages."* There is, it appears, no general duty devolving upon railway 1. Skelton v. L. dk N. W. Rw., L.R. 2 C.P., 631 ; Boggs v. Great Wettem Rw., 23 (U. C), C.P., 573. 2. WUliama v, Richard*, 3 C. & K., 82 ; Cotton v. Wood, 3 C.B., N.S., 571. ^\ STATIONS AND STARTING. 15 companies to place watchmen at such places, hut it depends upon the particular circumstances of each individual case as to whether the omission of such a precaution amounts to negligence or not/ But then this crossing is peculiarly dangerous, the line heing hid as it is ? In such a case the mere occurrence of an accident to one crossing, would be evidence of negligence.* I remember that once on a certain foggy morning in the land of fogs, a man took the trouble to look up the line and to look down the line, but owing to the dimness of the light failed to see a train coming, the engine never whi.stled, the man was injured and the company was found guilty of negligence.^ Where persons are in the habit of crossing a line at a particular place, though there is no right of way there, still the responsibility of taking reasonable precautions in their use of such place is thrown upon the company.* Every locomotive should be furnished with a bell and a steam- whistle, and the one should be sounded or the other rung at the distance of eighty rods from every place where the railway crosses a highway, and be kept ringing or sounding at short intervals, until the engine has crossed the road, under a penalty of eight dollars for every neglect, to be paid by the company, who will also be liable for all damages arising from such neglect.^ The omis- sion to give the required signal constitutes a prima facie case of negligence : still, to make the company liable for damages, the injury must be the result of the want of the signal, and the onus of showing this will not be upon the company, but upon the plaintiff." When a carriageway crossed a line on a level, and the gates on the down side of the line being open, young Wanless, with some 1. Stulley V. London & N. W. Rw., L.R., 1 Ex. 13. 2. Bilbeev. London & B. Rw., 54 L.J., 182 ; 18 C.B. (N.S. ), 584 ; see also, Stubley v L. & N. W., L.R., 1 Ex., 13 ; Stapley v. L. B. ^t'< being too often deemed effete from the very day they appear on the statute book, so I still further comforted and CvtisJed my wounded feelings by the thought that for this neglect oi o:r.iSsion they were liable t •^-. action at my suit, in which fuil costs might be recovered* (the latter was an object of importan( e just now). 1. Railway Act, 1868, a. 20, b.ij.6 and 6. 2. Ibid., B. 20., 8.8. 6. 3. Ibid. 8. 20., 8.8. % 4. 34 Vict., 0. 43, ► 6 (Can.). ■"^■P 20 WRONGS AND RIGHTS OF A TRAVELLER. I now retired into the waiting-room to ponder over the business that had thus unexpectedly turned up. I knew that few men were bold enough to fight a great railway company on any ques- tion, and especially one involving a small amount, and that as a result of this, railways have been virtually exempt from the penalties attaching to many breaches of duty and of contract which they are daily committing ; but I determined to sacrifice myself for the good of my fellows — I was eager, too, to see my name figuring in the reports. I also now began to reflect that if the train was much later I would miss my appointments, and then cause of action number four would accrue. For it is as clear as daylight that if a rail- way company publishes or authorizes the publication of a time- table, representing that a train will start at a particular hour for a particular place, or arrive at a particular hour, and no train is pre- pared or arrives, the company is responsible in damages to all persons who have acted upon the faith of the representation, and htave been deceived and put to expense, and have sustained dam- Hge thereby;^ but if they give proper notice they will not be lia- ble for any necessary delay." The company make a continuous representation whilst they continue to hold out printed or written papers as being their time-tables, and they thereby make a public profession and representation that they will exercise Lheir vocation of common carriers, and despatch passengers or goods, as the case may be, to certain specified places at or about the time named in such tables : and if they fail to do so they commit a breach of their duty as common carriers, and are guilty of a fraudulent representation, which may be the foundation of an action for deceit by any one who, relying on the representation, tenders him- self or his goods for conveyance at the appointed time, and finds then is no train about to start.' I also ran the risk of miss- 1. Addison on Torts, 3rd Ed., 447. 2. Red. on Railways, vol. 2, p. 276. They cannot free themselves from liability from delays caused by other Companies. Btalh v. i?. W.iJ., 18 Sol. J., 972. 3. Dtnton v. Gl. Northern iJw., 5 EIL & BL, 868 ; In re Oxlade, 1 C.B., N.S., 454 ; Heim v. McCaughan, 32 Miss., 17. STATIONS AND STARTING. 21 ing the connection at B ; but I remembered that once upon a time a tailor going down into the country to measure his customers, in consequence of the train not having reached a junction at the time advertised, missed his connection and had to spend the night at the junction and pay extra fare the ne^it morning ; he sued the company and recovered the amount of his hotel expenses and the extra fare, but not for damages sustained by not reaching his cus- tomers at the appointed time [but this rule seeuiS to be almost equivalent to a denial of all beneficial redress in such cases']. The Chief Baron in giving judgment, stated that as a rule, gen- orajly, in actions upon contracts "the plaintiff is entitled to recover 'Jiiitever damage naturally results from the breach of the con- tiaci but not damages for the disappointment of mind occasioned by tl.e breach of contract."'' It must clearly appear that the damajjes were sustained without any fault on the part of traveller, and in spite of his utmost efforts to avoid them.^ The mere production of a ticket, however, is not sufficient evi- dence of a contract to carry a passenger to a certain place within a given time, as one Hurst discovered when he sued for various expenses and losses sustained through missing a certain train in con- sequence of delay in starting ; the time-table must be produced to prove the contract.* And as I knew that to prove that the table was issued h\ i^''ority I would have to shew either that it was bought at ^ae of - he coi>ipany's stations, or at one of their re- cognise'*, icc b '"^,'^ offices, or that it was posted up in some ottice or place wher.. vu*) advertisements of the company were usually piace-i,"^ I started oti on a tour of investigation to see if I ^1 14 I i. lied, on Railways, vol. 2, p. 277, n. 2. Hamlin v, Ot. Northern Rw., 1 H. & N., 408, and as to damages for remote and uohftteral consequences, see Story v. N. Y, <£• Haarkin Rw., 2 Selden, 97 j Davit v. Talcot, 14 Bai hour, 611 ; Horner v. Wood, 10 Barbour, ;W6. 3. Benson \ . New Jersey Rw. Co., 9 Bosw., 412. 4. Hurst/. Ot. Western Rw., 34 L.J., C.P., 265; Robinson v. The same, 35 L.J., C.P., 123. 5. Addia.xi u;. Tor*e, p. 4K7. 22 WRONGS AND RIGHTS OF A TRAVELLER. could pick up the desired article, or evidence that would answer my purpose, keeping in mind how ill fared my friend, Mr. Wel- fare. He once innocently inquired of a railway porter when the train would be in, and being referred by the official to a time- table hanging upon the wall, he went to consult it; while doing so, down tumbled, through a hole in the roof, a heavy plank and a roll of zinc, and smote Mr. Welfare on the neck, doing him griev- ous bodily harm ; glaucing upwards, the poor stricken one beheld the legs of a man upon the roof Yet for the damages done the company was held not liable, a^ u' aught that my friend showed at the trial the man might have 1 - i : 'e servant of a contractor employed to mend the roof, or the s fortune might have been the result of a pure accident.' So the sufferings of my friend served but to point a moral — Beware! — and to adorn a volume of reports. But to return from this digiession anent my friend, to the topic on which I was musing. Strictly speaking, a company is not liable for mere delay, special damages must be proved ; but when- ever, in consequence of the delay, expenses are incurred, there is every ground for making the company liable.'^ Di'aper, C. J ., in one case, held that a time-table could not be treated as a part of the contract, but amounted to a representation only ; and that to recover damages one would have to show that he bought his ticket before the time specified for the train leaving, and not merely before the ariival of the train, for if that were after the time specified the would-be passenger would know as well as the company that the time-table had been departed from.^ While I was thus deeply ruminating, an old friend appeared — a Q. C, of high standing, at the bar of a neighbouring city ; and we went outside to enjoy a chat and weed while waiting for the train. Seeing an elderly female turn up her nose as a whiff of 1. Welfare v. London db Driyhton Rw. Co., L.R., 4 Q.B., 693. 2. See case cited in 1 U.C, L.J., N.S., p. 336. 3. Briiffia v. Orand Trunk Rw. Co., 24 U.C, Q.B., 516. STATIONS AND STARTING. 23 smoke tickled her nostrils, as if it were in very deed a blast from the lower regions, as King James said it was, my friend remarked : " Did you see that decision of Dillon, C. J., where he held that a woman who found the waiting-room unfit for her occupa- tion — tobacco and other impurities being offensive to her delicate nerves — and so attempted to enter the cars which had not as yet come up to the platform, and was injured by the giving way of the platform steps, was entitled to recover ? "' " No," I replied. "He ruled that it is the duty of railway passenger carriers to provide comfortable rooms for the accommodation of passengers while waiting at the stations, and to enforce such regulations in regard to smoking therein as to enable persons to occupy them in reasonable comfort." " A very good decision for the ladies, and those who have to wait hour after hour in a dirty room for a train ages behind its time." " Still I think it is pushing the doctrine of the liability of com- panies rather far." " Yes," I returned, " and rather in the teeth of the dictum of Mr. Justice Hannan, in Liner v. Great Western,^ where he said he thought that juries took an exaggerated view of the duties of railway companies : that the companies have done so much for the comfort and convenience of travellers that it is now made the subject of complaint if the highest degree of luxurious care is not attained in all their arrangements." " His is a much more sensible view of the case ;" said Smith who held some railway shares, " and one more likely to produce dividends for unfortunate stock-holders. If people avail thera- •selves of the benefits of railway travellers they should make some allowances. Ah ! look at our fair friond ! " i m 1. McDonald et ux. v. Chicago & N. W. R. Co,, 26 Iowa, 124. 2. L. B., JExch., 160. 'rn!' 24 WRONGS AND RIGHTS OF A TRAVELLER. She was at the far end of the platform, and an engine attached to a freight train seemed to be rushing straight at her ; she turned and fled, with a scream, to avoid the charge of the iron horse, and in her hurry tripped over a barrow and fell prostrate. The career of the locomotive was stopped ; it appeared that its antics had been caused by the negligent displacement of a switch. We raised the lady and found that although slightly damaged she was more frightened than hurt. We consoled her with the as- surance that if she chose to sue the company she could make them pay for the elephantine gambols of the fiery steed which had so disturbed her equanimity.^ Seeing a man a short way off to whom I desired to speak, I was on the point of jumping down off the platform, when my Q. C. exclaimed. " Hold ! be not rash ! If you jump, instead of going down by the steps, and are hurt yon cau ev . make the company pay for the plasters and the salves :^ besides here's the train." And so indeed it was at last : up it thundered to the station amid screeching and bell-ringing : out rushed the passengers eager to reach the refreshment room ; the crowd pushed my chum against a portable weighing-machine, and, catching his foot in it, he fell and injured himself Seeing that he was not very seriously damaged I could not help crying out : " Hold ! be not rash ! I knew a case on all fours with yours, where the foot of a machine projected above the level of the plat- form six inches and was tinfenced ; there it had stood for years without doing any damage, and it was held that there was no evidence to go to a jury of any negligence, the machine being where it might have been seen, and the accident not being one which could have been reasonably anticipated.^ An exactly similar case. Ho ! ho ! ho ! " 1. Camoell v. Boston no(yrth v. Broionlow, 34 L.J., C.P., 267. 3. Oibbon v. Paynton, 4 Burr., 2298. 4. Clay V. WUlan, 1 H. B., 298. 5. Bradley v. Waterhoute, 3 C. & P., 318. 6. II. TICKETS. 29 carriers were held relieved from liability. Then in England there is the Carrier's Act (11 Geo. 4. and 1 Wm. 4. c 68), applying to all goods above £10."* Here I was interrupted by the sudden cry of " Tickets ! Tickets ! " which rang through the car. The conductor entered, and stopped in front of a gentleman who said : " I have not got my ticket here. I hold a season one." " That won't do, sir ;" said the man. " Holders of annual tickets travelling on the line are bound to produce their tickets as much as ordinary passengers.^ So take your choice, show your ticket, pay your fare, or out you go."' " Well," replied the gentleman, " sooner than be turned out with my baggage, wherever you in your wisdom should deem best, I will pay my fare." " Don't do it, sir," I almost without intending it called out, so eager was I in my crusade against the company. " The conductor has no right to demand the tickets, nor receive any fare, nor in fact can he exercise any of the powers of his office, or meddle or interfere with any passenger or his baggage unless he has upon his hat or cap a badge indicating his office;* and a company before they can enforce any law as to the production of tickets must bring themselves strictly within the terms of the law." " Sold again," cried the Avretched official as he lugged out from his coat pocket a small cap ornamented with the word *' Conduc- tor" and showing it to me he added, " You pretend to know a great deal about the law, so perhaps you recollect that the statute 1. By it no carrier is liable for loss or injury to any articles of great value in small compass, or for money, bills, notes, jewellery, &c., above £10, unless the value and na- ture of the property has been declared, and an increased charge paid for it. As to carriers by water, see 37 Viot. (Ont.), ch. 25, s. 1 , Imp, St., 17 & 18 Vic, ch. 104, s. 503, and Act of Congress, March 3, 18.57, referred to infra Chapter IV, Book III. 2. Woodard v. Eastern Counties Bw., 7 Jur., N.S., 971, 4 L.T., N.S., 336 ; Downs v. N. Y. TICKETS. S3 at a little child who had got possession of his mother's ticket and was quietly by a process of suction reducing it to an unsightly and undistinguishable pulp ; then raising his voice, Smith, Q. C. exclaimed : " Excuse me, madam, you ought to be more careful of your ticket, for if you lose or destroy it, the conductor (unless he knows for a fact that you actually did pay your fare and obtain a ticket,) will be justified in demanding repayment from you, and, if you re- fuse it, may put you off the cars. Just listen to what the late lamented Chief Justice Robinson says on this very point, and where a mamed woman, and for aught T know a mother like yourself, was turned off the train, or had to pay her fare a second time, I forget which." And before the lady had recovered from her astonishment he dived into his red bag, produced an extensive brief, and read, as follows : " It may seem hard to a man who has lost his ticket, or perhaps had it stolen from him, that he should have to pay his fare a second time ; but it is better and more reasonable that a passenger should now and then have to suffer the consequences of his own want of care, than that a system (the system of issuing tickets as now in vogue) should be rendered impracticable, which seems necessary to the transaction of this important branch of business. It is not for the sole advantage, or for the pleasure and caprice of the rail- way company that these things are done in such a hurry. The public, whether wisely or not, desire to travel at the rate of four or five hundred miles a-day, and that rapidity of movement can- not be accomplished without peculiar arrangements to suit the exigency which must be found sometimes to produce inconvenience. If the passenger in this case, who I have no doubt lost her ticket, could claim as a matter of right to have it believed on her word that she had paid her passage, everybody else in u similar case must have the same right to tell the same story and to be canied 3 MHfBI BWim;fa.JfflWI'imillMa 11 ^i 1: 1 1 ': ri iji 1 t ' il, '{ 1 \l 1 f (1 :'; ill; WllONGS AND RIGHTS OF k TRAVELLER. through without paying the conductor, and without shoAving to him a proof that he had paid any one.'" " But," said the lady, who during the delivery of the judgment had time to recover her senses and her ticket ; " but my friend here could vouch for me that I spoke the truth." " Ah, my dear madam, do not deceive yourself : reflect that in Curtis V. G. T. R. Co' that ornament of the bench, Diaper, C J., remarked that he supposed that a man who produced no ticket, but asserted that he had paid his fare and had lost his ticket and therefore declined to pay again, would — though a by- stander corroborated the assertion — be deemed refusing to pay, within the meaning of the Acts." " I do not see what the Acts have to do with it. I never saw anything about such things in the Acts," said the lady, getting rather puzzled over the matter. " What, madam, do you read such things ? I should have im- agined that a fair creature like yourself would have found them too dry to read." " No sir : I am a member of the association of the Church of the New Jerusalem, and I read the Acts of the Apostles as well as every other part of the Bible," eagerly responded the lady. Amid broad smiles, giggling he-hes, hearty ha-has, guffawing ho-hos, the Q. C. hastened to explain. " Oh, my dear madam, I meant no allusion to Holy Writ ; I meant 31 Vic. c 68 — commonly called the Railway Act of 1868, which says at sec. 20 : " Any passenger refusing to pay the fare, may by the conductor of the train and the servants of the com- pany be put off the cars, with his luggage, at any usual stopping place, or near any dwelling house, as the conductor elects, the conductor first stopping the train and using no unnecessary force." 1. Duke V. Great Wettern Bw. Co., 14 U.C., Q.B., 377. 2. 12U.0.,0.P., 90. CHAPTER V. PRODUCING TICKETS, OR EVICTION. Carried past — Jumping oflf~ Junctions — Cave canem — Conductors refusing change — Fighting in the cars — Turned out in the dark — No seats — Coloured persons — Tickets lost and found too late — Conductor's conduct — Damages for wrongful ejectment — Go quietly — Companies heavily mulcted — By law as to producing Tickets — A lover, his mark — Getting off for a moment. FORTUNATELY for my friend the attention of our fellow travellers was drawn away from him by the language, more forcible than elegant, of a man who had been carried past a small way station at which he desired to alight, and for which he had a ticket. He vowed vengeance against the company because the train was not stopped and a reasonable opportunity given him to alight, and threatened loudly to sue the company for the damage which, he said, he would inevitably sustain through his non-de- livery at his destination. And no doubt he would be successful, judging from American authorities, in recovering compensation for the inconvenience, loss of time, and the labour of travelling back to the haven where he would be, because these are the direct consequences of the wrong done him.' The ticket must always be taken to be the contract between the passenger and the com- pany for the special purpose, and upon the terms which are con- tained in it.' Somebody — not a Solomon — asked the man why he had not jumped off: he, sensibly — considering he was in a passion — re- plied : 1. Damont v. New Orleant Js CaroHon Rw., 9 Louis. Am., 441 ; III. Cen. Rw. Co, v. AhtU, cited in 8 Can. L. J., N.S., 172 ; Bed. on Railways, vol. 2, 276 ; Hodges on Bail- ways, 619 2. Farewell v. Onmd Trunk Rw., 16 U.C., C.P., 427. « i I., w mmm 36 WRONGS AND RIGHTS OF A TRAVELLER. i'" " If I had been so foolhardy as to jump off while the train was in motion, without doubt, any court in the land would hold that I did it at my own risk, and, if hurt, could coolly tell me that for my gross imprudence I had nobody but myself to blame ;' if, how- ever, they had stopped but for a moment, I would have run the risk of being injured by their starting before I was quite off, for then they would have been liable." " But," sa^ i my legal luminary to me sotto-voce — for he was afraid to draw attention to himself again — " if a passenger is in- duced to leap from a car under the influence of a well-grounded fear of a collision that would be fatal to limb o" life, it seems to be regarded as well settled that he may recover against the car- riers, even though he would not have been hurt in the slightest degree, had he philosophically remained quiet." By this time we had reached the Junction, and friend Smith and myself and several other persons got out to take the cars of the one or the other of the two other companies whose lines here cross. The stations of the three companies are all open to each other, and the passengers of each pass directly from the one to the other, " no pent up Utica contracts their powers " of pedestria- nism, the whole area being used as common ground by the travel- lers on all three roads. While here, a porter of the B. and E. Co., who was trundling a truck laden high with luggage, let a portman- teau fall off and injure the toes of one of our fellow travellers who was on the part of the platform owned by the B. and E. R. W. Co. on his way to the terminus of the other line. (I afterwards heard that the court held that the negligence being an act of misfeasance by the servant of the company in the course of his employment, the maxim respondeat awperior applied, and that the 1. Davumt v. iVeto Orleans d: G. Rw. , supra ; Lucas v. Taunton d: New Bedford Rw. Co., 6 Gray, 64. 2. Penn. Rw. v. Kilgore, 32 Penn. St., 292. 3. Ingalls v. Bills, 9 Met., 1 ; Eldridge v. Long Is. Rw., 1 Sandf., 89 ; Rw. Go. v. Aspcll, 23 Penn. St., 147-160 ; Stokes v. SaltonstaU, 13 Peters (U.S.), 181. PRODUCING TICKETS, OR EVICTION. 37 company were liable ; but the judges doubted whether the rail- way would have been responsible supposing the man had been injured from the state and condition of the platform, as he had no business on it.)' As I was trudging along an ugly dog of the cur tribe with a noli me tangere expression of countenance dashed past me and rushed up to an innocent-looking individual, seizing him violently by the posterior part of the most indispensable portion of a man's attire, and judging from the row the fellow kicked up, by some- thing more sensitive than pantaloons as well : shaking vigorously, the dog detached a piece of cloth and drew a little blood. The victim had a heavy stick in his hand, and the little doggy's lively career was stopped then and there. I remarked to the man, " My friend, if you find out that that unfortunate puppy belonged to the company or to any of their servants, sue them for damages — if not, don't trouble yourself to do so unless you can show that they were able to dispose of the fractious animal and did not do it." Shortly after we were again under way a little excitement was occasioned by an altei'cation between the conductor and a man who had not fully made up his mind (whether owing to the magnitude or insignificance thereof, we cannot say) how far he intended to ride, and so did not wish to settle for the present. The strife of tongues waxed warm and the sound of the conflict rose high above the rattle and the din of the train. The conductor said that if he diJ not at once pay the fare to some place or other he would have the pleasure of walking there. The man still hesitated, so the official pulled the check-rope, and on the stoppage of the train proceeded to eject the traveller, who at the last moment tendered a $20 gold piece, and told the con- m 1. Tebhutt V. Brittol A Ex. R. Co., L.R., 6 Q. B., 73; Stokes v. Cardiff Steam IVav. Co., 33 L.J. (N.S.), Q.B., 310. 2. Smith V. Ot. Eatt. Rw., L.R., 2 C.P., 4 ; Bnrrett v. Maiden «fc Mclro»e Rw., 3 AUen, 101. f!!T 38 WRONGS AND RIGHTS OF A TRAVELLER. ductor to take the fare to the next station (some $1. 35) : the latter declined now to receive the money and put the man off, leaving him alone in his glory, breathing curses loud and deep.* Doubtless the official was justified in so doing, as in a somewhat similar case the court said that even an officer at a ticket office might reasonably object to an offer of a $20 gold piece to pay a fare of $1.35, on account of the trouble and risk involved : and that a person rushing into the cars without a ticket has no reason to expect that he will find the conductor prepared to change a $20 gold piece, for he relies upon receiving tickets from the passengers, or, if money be paid to him instead, he expects that it will be paid with reasonable regard to what is convenient under the circumstances." I may as well inform the general public here that it is con- sidered a reasonable condition for railway companies to require passengers to procure tickets before entering the train.^ My friend was just beginning to dilate upon the subject of ejecting passengers, when his voice was drowned by a crash, a scream, and a general uprising of our fellow-travellers. I verily thought within myself that there was a collision — that we were off the track — that — that — that, I don't know what I did not think in the few moments that elapsed before I saw that it was only a fight between some men who had been indulging deeply in that cup which inebriates and brutalises as well as cheers. The con- ductor soon arrived and quelled the disturbance. In this case fortunately it was not necessary — as it may sometimes be — for him to stop the train, call to his aid the engineer, the firemen, brakesmen and bellicose passengers, and leading the way himself — like some valiant knight of the middle ages — expel the dis- turbers of the peace, or else show by an earnest experiment that 1. People V. Tillson, 3 Parker, C, 2;>4. 2. FiUton V. Orand Trunk Rtv., 17 U.C., Q.B., 4.33. 3. HurH V. G. W. R., 19 C.B., N.S., 310. "ft PRODUCma TICKETS, OR EVICTION. 39 to do so was impossible.' If this latter contingency were to happen, the conductor must either discontinue the trip, or give the other passengers an opportunity of leaving the cars ; other- vise the company will be responsible for the acts of the rioters." A conductor is not bound to wait until some act of violence, pro- faneness, or other misconduct has been committed before exercis- ing the power reposed in him of excluding or expelling offen- ders.' Of course he is never bound to receive passengers who will not conform to reasonable regulations, or who from their be- haviour, state of health or person, are offensive to the other tra- vellers.* Where the company issue excursion tickets, stipulating to run trains in a particular manner, they cannot excuse themselves, by showing that the carriages are all filled.* In England, in ordi- nary cases, the ticket is issued subject to the condition that there is room in the train ; otherwise those who are booked for the gi'eatest distance have the preference." A considerable dis- cussion has taken place in some of the states of the Republic as to how far railway companies can require coloured persons to sit in a particular place or car; the right to do so was maintained by the Supi-eme Court of Pennsylvania,^ but other tribunals have denied it. In Illinois it was decided that a company could not from caprice, wantonness or prejudice, exclude a black woman from the ladies' car on account of her negro blood ; although it might not be an unreasonable rule to require coloured persons to occupy seats in a separate car, furnished as comfortably as the others.* 1. Pittsburgh, Fort Wayne, die. Rio., v. Hitula, 7 Am. Reg., 14. 2. Redfield on Railways, Vol. 2., p. 234. 3. Venton v. Middlesex Rio., 11 Allen, 306. 4. Hodges on Railways, 553. 5. Patteson, J., Hawcroft v. G. N. R., 16 Jur., 196. 6. Hodges on Railways, 563. 7. Westchester Rw. v. Miles, 55 Penn. St., 209. 8. Chicago dk If. W. v. Williams, 55 111., 185. 40 WRONGS AND RIGHTS OF A TRAVELLER. It is said to have been held by some court, in a case of 2'oland against The Hudson River Railway, that a passenger who is not provided with a seat is not obliged to pay any fare, and if expelled from the cars for refusing such payment may sustain an action against the company. But this doctrine must be taken cwmgrano sails. If a passenger is not accommodated as he should be he may decline any compromise, and sue the company for refusing to carry him, as their contract by the ticket or their duty re- quired; and he doubtless will succeed unless the company prove some just excuse. But if one chooses to accept a passage without a seat, the general understanding undoubtedly is that he must pay. If, however, he goes upon the cars expecting proper accom- modation, and is put off because he declines going without, he may still sue.^ So much by way of parenthesis and digression. " Well, what have you got to say about ejectment ? " I asked my chum. " Oh, that it is deuced hard that every dunderhead of a con- ductor may put a poor wayfaring-man off, even at the noon of night, near any dwelling-house he may choose. In one case the night was dark and cloudy; from where the ejected man was placed, the lights of the last station were visible, although no house was nigh, yet the court held that the servants of the com- pany had not exceeded their authority."" " How would it be, old boy, if the poor wretch was short- sighted ? " I inquired. " That defect in one's optics would impose no additional obliga- tion on the company ; at least so it would appear from the authori- ties."^ " What would be the consequences if a fellow was to mislay his ticket, and find it again after he had been ignominiously expelled : could he recover against the company ? " 1. Kedfield on Railways, vol. 2, p. 281. 2. Fulton V. G. T. R., supra. 3. Bridyts v, N. London Eiu., L.R., 6 Q.B., 377. PRODUCING TICKETS, OR EVICTION. 41 " 1 remember where one Curtis was travelling between St. Mary's and London, and had put his ticket away so safely — lest he should lose it — that he could not find it. The conductor called upon him to produce it ; in vain Curtis ransacked pocket after pocket in coat, waistcoat and trousers, pulling out papers, letters, newspapers, wool and all that precious olio to be found in a man's pockets. The other travellers were greatly edified and delighted at the exhibition of this omnium gatherum, and their laughs and jests added not a little to the confusion of the poor wretch search- ing for his little talismanic piece of paste-board. At length the conductor stopped the train and turned C. off, though while being put off" he offered to pay his fare. He sued the company, and got $300 out of them, the court holding the company liable for the acts of their officers duly authorised and styled (under the Act) conductors, when not committed in excess of authority which in this case had not been overstepped. The company applied for a new trial, but the court declined to disturb the verdict (it being the second one recovered by Curtis) although it considered the damages excessive."' " I suppose the courts assume that the conductors are the agents of the company and authorised to do all legal acts for the properly collecting tickets, keeping order, running the train, and removing persons who misbehave or will not pay, and such ? " I queried. "Yes," replied my friend who was suffering from an acute attack of cacoethes loquendi, "and if in assuming to carry out what he is legally empowered to do, he forcibly removes from the cars (without any excuse) a passenger who has paid his fare he will be liable for the assault ; but if while being removed the man should slip, fall, and be injured, the company will not be respon- sible for his scratches and bruises, or his sprains and strains, such things being the remote, and not the proximate, consequences of the ejectment."'' 1. CurH$ V. G. T.R., 12 C.P., 90. 2. Williaimon v. G. T. R., 17 U.C., C.P., 615. 42 WRONGS AND RIGHTS OF A TRAVELLER. " Suppose a man suffered serious detriment to his business by being wrongfully turned out of the cars, could he recover for such losses ? " 1 asked. " It has been so considered in the great Republic, if he declares specially in regard to them.* But it has been held — and I think rightly — that one cannot get vindictive or punitive damages against a company, unless they expressly or impliedly participate in the wrongful action by authorising it beforehand or approving of it afterwards f or the case be one of gross negligence or wil- ful misconduct."* " What is it, then, exactly, that a man can get for being with indignity and insolence hustled oul of a train, amid the laughs and jeers of the vulgar and the sneers of the polite ?" " Damages for actual injury, loss of time, pain of body, money paid to the doctor, or for injuries to the wounded feelings of the evicted one, may be allowed."^ " Suppose one was killed, and sent off unprepared to the happy hunting grounds of his fathers ? " I queried. "Then the company would be liable under Lord Campbell's Act:"° answered my Nestor. " I presume," I continued, still indulging my unquenchable thirst for knowledge, " that when a conductor gets into his cranium the idea that it is the proper thing to put one off, the best plan is quietly to submit to the inscrutable and go ? " *' Undoubtedly — spoken like a veritable Solon. In such an evil case it will be wise and prudent to gather together one's sur- roundings and belongings, and peaceably succumb to the powers that be, for if you leave any articles behind you, you cannot re- cover their value — unless you can show that the company got ■I ; 1. Holmes v. Doane, 3 Gray, S28. 2. Hogan v. Providence & W. Rw., .3 Rhode Is., 88. 3. Barrow v. Baltimore d- O. R.R., 24 Md., 188 ; Baltimore d- 0. R.R. v. State, lb., 271. 4. Hogan v. Prov. <£• W, Rw., supra. fi. Penn, Rio. Co. v. Vandiv^, 42 Penn. St., 365. PRODUCING TICKETS, OH EVICTION. 43 them, or that the violence or suddenness of your ejection rendered it impossible for you to take them with you and so they were lost. This point Mr. Glover had the pleasure of settling : he was trying to do the London and South- Western by giving half his ticket to a friend to save expenses, and when put out of the cars left a pair of glasses behind him, and the court told him that he had only himself to blame for the loss.' The courts never like the idea of mulcting railway companies in heavy damages for the sins of commission of their servants and conductors ; and so where a verdict of £50 was given against the G. W. R. because the conductor put the plaintiff off the train, though the inconveni- ence to him was a mere bagatelle, and |the conductor had acted bona fide under an impression that the fare had not been paid, and had used no harshness or violence, a new trial was granted on the ground of excessive damages, and the Chief Justice stigmatised the verdict as ' outrageous :' but there the jurors of our Lady the Queen and my lord differed ; and so on the second trial the yeo- men of the county gave the man only £5 less, and the company submitted.* And in another case the same Canadian court spoke regretfully of the exorbitant amount of damages (£50) where the company were not otherwise concerned than through the act of their conductor, who thought that he had only been doing his duty, as England expects every man to do.' And where an American jury gave $1000, no special damage being shown, a new trial was granted."* "To return to the question of tickets." I said, "I saw an Eng- lish decision the other day, which shows how one may save a little in going to an intermediate place, where opposition lines are running to some place beyond." " How is that ? " was asked. 1. Clover V. London i: ST W. Rw., 3 Q.B., 25. 2. Huntamany. O. W. R., 20 U.C, Q.B., 24, ;*. Davis V. O. W.R.,^ U.C, Q.B., 27 and Life of Lord Nelson. 4. Crocker v. New London, Will. Je Pat., 24 Conn., 249. 44 WRONGS AND RIGHTS OF A TRAVELLER. " Why often if two lines run to B. or there is an excursion thither, the fare is cheaper than to A., which, perhaps, is not half the dis- tance,and one can buy a ticket to B,and get off at A if he so wishes." " Would that be a safe dodge ? " " It appears to have been decided in England that one may pay his fare to one place, and yet leave the cars at some intermediate place where the train stops, although the fare to the latter place may be greater than it is to the former.'" " I saw another rather funny decision. By a by-law, passengers not delivering up their tickets when required were made liable to a penalty ; a man took a return ticket, yet after returning to the place whence he started, did not get off, but went on to a further station, without, however, any intention to defraud ; it was held that he could not be convicted under the by-law, for it only ap- plied to the case of a person wilfully refusing to show his ticket when lie Imd one, while here the man had none ! It was held, also, that the by-law only applied to people travelling minus a ticket with intent to defraud." Where a gentleman took tickets for himself and three servants, keeping the tickets in his own custody, and telling the guard that he had them, and the ser- vants were permitted to enter the car without having or show- ing each his ticket, the court held that the company were estopped from raising the objection that the by-law, as to the production and delivery up of tickets, had been infringed."' " I believe," I remarked, when a pause enabled me to squeeze in a remark, " a company if it chooses may allow a discount off tickets bought before entering the cars ; but that those who enter without their magic scraps of card-board cannot claim such indul- gence* even though they have been prevented purchasing them from the fact of the office being closed."* 1. The Queen v. Frere, 4 E. & B., 598 ; Moore v. Metropolitan Bw., 8 Q.B., 36. 2. Dearden v. Towtmnd, 12 Jur., N.S., 120, 13 L. J., N.S., 323. 3. Jenninga v. O. N. R., 1 L.R,, Q.B., 7. 4. The State v. Oould, 53 Maine, 279 ; Chicago and Alton Bw. v. Boberts, 40 111., 503. 6. Crocker v. New London, Will. 1. Warren v. Fitchlmrg Bw., 8 Allen, 227. PLATFORMS AND ALIGHTING. 49 trusted his case into the hands of either of us, for a railway com- pany is bound so to fence its station that the public will not be misled, by seeing a place unfenced, into injuring themselves by passing that way, it being the shortest road to the platform.' (Though by the way, a Canadian court has considered that com- panies are not responsible if parties come to grief through taking short cuts, if the proper way of ingress and egress to the station is safe, convenient and well-lighted.)'' Thinking that the man was an American citizen, I told him that Mr. C. J. Dillon, of the State of Iowa, had said on a com- paratively recent occasion that " railway companies are bound to keep in a safe condition all portions of their platforms and ap- proaches thereto to which the public do and would naturally resort, and all portions of their station- grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage in their cars, would naturally or ordinarily be likely to go."' " And, my dear sir," said the Q. C. who, more observant than myself, had noticed a pile of Hs accumulating in front of the man, " there is a much stronger English case, where one Martin arrived at a station less than two minutes before the time for the train to leave, and wliile running along the line — in a place where he should not have gone — in order to reach the train which was a little ahead, he stumbled over a switch handle, fell on his elbow, and was considerably hurt. The jury considered that the company had been guilty of negligence and want of proper care, and gave Martin £20, and the court would not interfere."* " Veil, hi think the Hinglish case is the one for my money," quoth our new found friend. " Hand hi'U rub my harm with a 1. Burgat v. G. W.R., 32 L.J., 76. 2. WtUktr V. a. fT. A, 8 U.C, C.P., 161. 3. McDonald v. Chicago, nt to it ; and .so I am afraid that the company, in cjuse of a loss, will not be liable as your goods exceed the prescribed limit.' V>>r the same reason they may also be excused for delay in re- delivering them, at least if such tardiness is not caused l)y any » »4tllard V Of. W. H, 2 B. * S., 411t ; 8 .Tiir,, N.S., 1076. 2. Andtrtov v North Eastern Rv\, 4 L.J., N.S., 216, 3. Van ToU v. Smith Eattern Rw. Co., 12 C.B., N.»., 76 ; 6 T,.T., N.S., 'M4. t » BA(;!GAG& 63 wilful act or default of their own, and Ik without their privity or knowledge.' Samples and patternn are not considered personal baggage."* " Many thanks for all your information. I think I can see my box through this crack, and here comes the man with the key ; so I am all right." " Well, good-bye ! there's my train, anyway, so I am off. Don't forget you owe me a fee for this." As I was passing into the car, J saw a crowd gathered round the ticket-office, and an unfortunate rnan — quite respectably ha- bilitated — struggling in the clutches of a policeman. I made in- quiries as to the cause of the arrest and was told that the prisoner had been buying a ticket at the office, and in giving change the clerk handed him two sous, a French piece, the man, whose name was Allen, objected and demanded a British penny in its place, and a« the clerk would not take back the sous, Allen determined to help himself: the bowl of the till containing copper coins ap- pearing to be within easy reach, he put in his hand to get tho money. Upon this the agent raised the hue and cry, summoned the conservator of the peace on duty, and gave A. into custody on the charge of attempting to rob the till. It seemed rather a hard case as the poor fellow was only trying to help himself to his change. (Being dubious as to what would be the upshot of the affair, I bore the matter in mind, and after the usual time required for issuing a writ, bringing a case to trial, moving in torm, and giving judgment, I discovered that in the action brought by A. against the company for false imprisonment it was held, that as the arrest, after the attempt had ceased, could not be necessary for the protection of the company's property, but was merely to vindi- c^e justice, thu clerk had no implied authority to arrest the man ; his authority only extended to the doing of such acts as were necessary for the fulfilment of the duties entrusted to him, and 1. Pgpper V. South Vaitem Rw. Co., 17 L. J., N.S., 469. 2. Bayky v. Lanctuter Rw. Co., 18 Sol. J., 301. ■W! I ' ! Trrrr 64 WRONGS AND RIGHTS OF A TRAVELLER. that the company was, therefore, not liable for the act of the clerk, nor for that of the policeman who took A. into custody. Blaiik- burn, J., was inclined to think that if a man in charge of a till were to find that a person was attempting to rob it, and he could only prevent his stealing by taking him into custody, he might have an implied authority to arrest the offender ; or, if the clerk had reason to believe that the money had been actually stolen and he could get it back by taking the thief into custody, and he took him up for that purpose, it might be that that also would be with- in the authority of the clerk.' A man standing by me asked how it was that the policeman had not on the same style of garments as those of his fellows who peiambulate in blissful ease and quiet serenity the city streets. I told him that railway companies had power to appoint constables to act on their lines for tlie preseiTation of peace, and securing persons and property against felonies and other unlawful acts on such railways and their works, and in all places not more than a quarter of a mile distant therefrom, and to take before a justice of the peace any pei-son guilty of an offence punishable by summary convictions under any act or by-law.* This time I had my impedimenta checked, and thus was re- lieved of the trouble of carrying them in and ouv of the car. All the world knows that the possession of a check is evidence against the company of the receipt of the baggage : the piece of metal has been compared to a bill of lading, in fact said to be identical therewith.^ It is always the source of great wonderment to me that the British public do not insist upon the British rail- ways introducing the system on their lines ; the continenta plan of registering, though far in advance of the English, is still much more troublesome than the simple process of checking, and very expensive. How convenient is our enlightened plan, when 1. Allen V. London ft S. W. Rw., L.R., 6 y.B., 65. 2. Railway Act, 18G8, a. 49. 3. Dill V. R. W. Co., 7 Rich, 158. *i 6AOGAOB. 65 ' lR| one has to change cars en route : no trouble looking after bag- gage ; one simply hajs to walk out of one train into the other, ticket for the whole journey and checks in your pocket ; and if your traps are lost you can sue either or any of the companies.' The car being rather crowded the atmosphere soon became rather close and stifling. A gentleman, after a considerable amount of coaxing, pushing, shoving and pulling, persuaded one of the win- dows to allow itseK to be lifted up to admit the sharp, clear, ex- hilarating winter's air. The person who opened the window got out and another got in and took his seat beside it, and carelessly allowed his left hand to rest on the ledge : a.s the train approached a station, the breaks were suddenly put on, and the vibration caused the window to fall athwart the man's fingers, inflicting a serious injury thereon. Aroused and attracted by the gi'unting and groaning, adjurations and exclamations of the injured one, sorar officious people came round him, advising and urging the poor fellow to sue the company, for that they were lx)und to pro- vide windows with good fastenings for the comfort and protection of passengoi-s. 1 merely said, that without positive proof of the defective construction of the window, the mere falling would not make a, prima faci& c&se of negligence against the company, as a Mr. Murray found when he sued a London railway company for exactly a similar injury.'^ Some people seem to be possessed of limbs which do not appear to belong to them of right, and with which they never seem to know exactly what to do, and such uncomfoi-tably constituted mortals are very apt to stretch their heads, or legs, or arms, out if the windows of railway cairiages, having no other improper place to put them when travelling by rail ; to such eccentric genii I would remark, that if they are injured while in this position they will not be able to recover damages agaiiist, the company, for the negligence is their own, and the company is not bound to put bars 1. IJart V. Rensallafr & Samtonn Rie., 4 Held, 37. 2. Murray v. Metroi.olitan DUtrUt liw., 27 L.T., N.8., 762. 6 M ' ! i ■ I' 66 WRONGS AND RIGHTS OF A TRAVELLER. across its carriage windows aa careful matrons do over their nursery panes.' It was once held that a company, in order to save the upper extremities of their passengers, was bound to provide wire gauzes, bars, slats, or other barricades for the windows,'^ but this fatherly decision has been overruled.^ Mrs. Holbrook found this to her cost when she had her arm broken (it was projecting from the window) by something coming against it as they were passing other cars on another track.* In the State where the principles of Brotherly Love prevail, or are supposed to, it was held that when passengers are liable to have their arms, if lying outside the windows, caught in passing bridges, the conductor should give them notice to put them effectually upon their guard, or the com- pany will be liable for injuries, and printed notices are not suffi- cient.* Talking about squeezing fingers — a decidedly unpleasant thing to thesqueezee, when not done by the human hand divine — riailway officials are not allowed, fis a rule, to apply extempore thumbscrews and pinch a man's digits in the door : this has been solemnly decided by the Court of Common Pleas, at Westminster Hall. One Ford- ham, was in the act of getting into a railway carriage, of the usual English make, with doors at the sides opening outwards ; having a parcel in his right hand, he very naturally placed his left on the open door to aid him on entering. The guard, without giving any previous warning, fiung too the door with a slam : F. having just at that moment his fingers where the door should meet the door-plate, and they possessing that quality of matter, compressi- bility, had thorn badly crushed. The Court of Common Pleas and the Exchequer Chamber thought that the guard had been guilty of carelessness and that Fordham had done nothing to contribute 1. Indianapotit «t Cincinnati Rw. v. Rutherford, 7 Am. Law Reg, (N.8.), 476. 2. N. J, R. V. Kennard, 21 Penn. St., 203. a P. «t C. Rw. V. McClurg, 7 Auv Law Reg. (N.S.), 277. 4. Holbrook v. Utim Cdiiman v. S. E. Rw. , 4 H. & C, 699. % Richardton v. Metrc^litan Rw., L.R., 3C.P., 374, n. If,-' it ■ M •\J fi m 68 WRONGS AND RIGHTS OF A TRAVELLER. m " If a line becomes blocked up and impeded by snow, the com- pany is bound to use all reasonable exertions to forward the pas- sengers, although that may put the company to extra expense, which of course they have no way of recovering from the travel- lers ;* so I presume ere long extra engines and snow ploughs will come to our rescue." *' It is to be hoped that the fuel will last," said the lady. " How I pity those poor cattle that we heard lowing so plaintively as we passed them at the last siding : " she added tenderly. " Yes ; no great efforts will be made for their convenience ; if a snow storm comes, the company is not bound to forward them by extraordinary means and at additional expense."^ " Poor things," said my fair companion, who seemed " A very womau ; full of tears, Hopes, blushes, tenderness, fears, Griefs, laughter, kindness, joys and sighs, Loves, likings, friendships, sympathies ; A heart to feel for every woe. And pity, if not dole, bestow." •' Poor things, unless in the hereafter there is a place where the spirits of animals be at rest, they have to bear a very heavy share of the primeval curae, and pay dearly for Adam's transgression and fall." 1. Addison on Torts, 3rd Ed., 448. 2. Briddon v. Ot. Northern Rw., 28 L.J., Ex. 51. ^i i.i>l CHAPTER VIII. DUE CARE. Snowed up — Pacific Railway — Passenger carriers not insurers— Company must use due care — Defective machinery — Broken axle — Company must account for accident — Difference between goods and men— What is due care — T^atent de- fects in cars — English rule — Rule in New York— Moralising. AS the train came to a solemn pause in a deep cutting, a num- ber of us gathered together in the warm and cosy Pullman, the ne pltw ultra of railway cars, far surpassing in comfort and luxury an English or Continental first-class carriage, though not adorned as are the Italian cars, with those abominations of the sterner sex — tidies for the head to rest against. And here, each in turn related railroad adventures and accidents ; tales which ex- cited laughter and joyous merriment, of engagements, love scenes, maniage ceremonies, undress exhibitions in sleeping cars ; tales of sorrow and grief, collisions, explosions, helpless people crushed, boiled, roasted to death ; dozens plunged into eternity in a moment by the simple derangement of a switch, the starting of a rail, a flaw in a wheel, a sleepy pointsman or a weary telegraph clerk. One told that, in India, railroad traffic is seriously affected by the stagnation of the matrimonial market, a wedding there being an occasion of gi'eat pomp and the gathering together of friends ; that the railways are breaking down the castes, as the conductors tumble into the same car proud, lofty, blue-blooded Brahmins, poor despised Pariahs, blood-thirsty Thugs, sun-worshiping Par- sees, and learned Musselmans : and go together these must, not- withstanding the dogmas of Shasters, Vedas and Korans, or else jump out and die. Another told of having found nuggets of gold, th e remains of melted jewellery, among the charred and blackened ■it m r-. n NT- 70 WRONGS AND RIGHTS OF A TRAVELLER. remains of unfortunates consumed at the Komoka (Ont.) accident. While a third in graphic terms described the efforts made to br«ak through a snow blockade on the Central Pacific ; the snow was a solid mass twenty feet high in front of the plough ; ten engines were at work ; they backed up about a mile, then reversing made a spring forward, locomotives shrieking and screeching, men yell- ing and gesticulating, volumes of smoke pouring forth from every funnel and hanging like a pall over the scene : the loud rumbling of the huge iron-beaked monster flying over the track, the hissing roaring din and the chorus of shrieking demons behind made up a scene that would blanch the boldest cheek ; with the force of a thousand giants the plough rushed upon the snow and hurled it in enormous masses, like mighty billows, down the mountain sides, crushing through the lofty pines, and glistening and gleaming like frosted silver as it fell upon the frozen cataract below ; but the charge was well nigh in vain. Thus with the flow of reason and the feast of soul passed some weary hours. At last, one gentleman turning to me, said : " I believe that a carrier of goods is liable for his freight in every event : is a carrier of passengei-s responsible to the same extent 1 " "No," I responded, " all jurists are agreed that railway com- panies are only liable for negligence, either proximate or remote, and not for injuries happening to passengers from unforeseen accident or misfortune, where there has been no negligence or default on the part of the carrier ;' still it is the bounden duty of a company to use due and proper care and skill in conveying travellers ; and this duty laid upon them does not arise from any contract made between the company and the persons conveyed by them, but is one which the law imposes. If railways are bound to carry, they are also bound to carry safely : it is not sufficient for them to bring merely the dead body of their pas- senger to the end of the journey, and there deliver up the remains, 1. AiUm V. Heaven, 2 Eep., 533 ; Fnnk v. Potter, 17 111., 496. ^i ilU DUB CARE. 71 parboiled or cut into sausage meat, to his executors and adminis- trators'. The fact that injury is suffered by any one while upon the company's train, as a passenger, through any failure of the means of safe transportation, is regarded as prima facie evidence of their liability;^ and such evidence, if not rebutted by the company, will justify a verdict against them which a court will not set aside."^ And having delivered myself of this harangue, I looked around with a self-satisfied air " and rubbed my hands with invisible soap, in imperceptible water," d la Tom Hood. " Yes," said an engineer, " a company is bound to use the best precautions in known practical use to secure the safety of their passengers, but not every possible preventive which the highest .scientific skill might have suggested,* nor every device which ingenuity might imagine.'^ But it appears hard that a company should be held liable — as they have been — for injuries arising from a crack in the axle of a car indiscoverable by any practical mode of examination,' and be bound to provide roadworthy carriages, absolutely and irrespectively of negligence." " Yes, that is the rule in New York State : but it has been somewhat questioned in later cases, and in fact it was laid down that a company is not responsible for injuries caused by via major, as the breaking of a rail through extreme cold."' "Wal, strangers," quoth a regular long, lean, lanky down - Easter, " look ye har, down in my State, a carrier is bound to use the highest degree of care that a reasonable man would use."* " That is substantially the same as the rule in the English 1 . CoUett V. London Jb N. W. Rw., 16 Ad. & Ell., N.S., 984. 2. Dunman, C.J., in Carpwy. London 3TBR, N.Y. US80 (716) 872-4503 # rr CHAPTER IX. ACCIDENTS TO TRAVELLERS. Standing on platforms of cars — Room and seats to be furnished — Riding iu ex- press cars — in caboose car — Rule in Illinois — Walking through the train- Innocent blood — Damages to infants and juveniles — Child's fare unpaid— $1,800 for a baby's leg and hand — Negligence of a nurse — Travelling on free pass — Conditional liability — Company exempt — Pat and Sambo — Home again from a foreign shore. OUR Connecticut friend went out of the car and stood on the platform, in defiance of the notice posted up on the door for- bidding people to stand there ; and, gazing out into the storm and the night, he tried, like sister Ann, to distinguish whether there were any signs of relief coming to us in our benighted condition. As he balanced himself on his long slender legs and stretched for- ward his lean and lank corpus to look ahead, the engine gave a sudden puff and plunge, Conn, lost his balance and fell to the ground : the snow prevented much damage happening to his fra- gile body, but unfortunately his foot rested partly on the raiiland the wheel of the car badly crushed his big-toe. The violent ear- piercing howls that issued from his tobacco-seasoned throat brought assistance very soon, and he was speedily helped back into the car; his damaged pedal member was dressed by a young member of the iEsculapian fraternity who chanced to be on board, and seemed eager to show his surgical skill. The injured man soon became violent in his denunciations of the carelessness of the company, in his threata of vengeance in the form of suits for damages. He was, however, suddenly checked in the outpouring of the vials of his Mnrath by one of the passen- gers remarking ' I N :'l mmw 78 WRONGS AND RIGHTS OF A TRAVELLER. " Perhaps you do not know that in these hyperborean regions people can claim no compensation for injuries received while on the platform of a car (or on any baggage, wood or freight car), in violation of the printed regulations posted up conspicuously, and where there is proper and ample accommodation for the passengers inside the car."* " And there is a similar statute in New York State," added another.'^ " Yes," I said, "no one can recover for an injury of which his own negligence was in the whole, or in part, the proximate cause."' " Wal, but the old conductor saw me thar and didn't say nothink agin' it," quoth the wounded man. " That makes no difference.* If there bad been no notice up you might get something out of them."^ " I think," I said, " that it has been held, in one case at least, to be a question for the jury, whether the passenger had notice not to stand outside, and whether the fact of his disregarding it con- tributed to the injury ; and they having failed to find these facts, the Court of Appeals let the plaintiff" keep the $10,000, awarded him."" " Oh, Jee-ru-sa-lem and Jee-ri-cho, I go in for that slick and quick," cried the victim, at the sound of the almighty dollars. " Ha-ha ; but the company, if you sue them, will only have to show that there was room and an unoccupied seat inside the cars for you. Of course, one is not obliged to displace either the per- sons or property of other passengers, or urge them to give up half a seat, or even a whole one, needlessly occupied by them ;^ that is the duty of the conductor." 1. Railway Act, 1868, s. 20 sub-sec. 13 (Canada). 2. Redfield on Railways, vol 2., p. 262. 3. Rooinion v. Cone, 22 Vt., 213 ; ButterfitJd v. Fomttery 11 East., 60. 4. HiggiM v. N. Y. Je Harltm Rw., 2 Bosw., 132. 6. CoUgrove v. If. Y. «fc N. H. Rw., 6 Duer, 382. 6. Zemp V. W. di M. Rw., 9 Rich, 84. 7. Robinvm v. Fitdmrg urgh & Upper Miss. Rw. v. Montgomei-y, 7 Porter (Ind.), 474. 2. Dunn v. O. T. Rw., 18 Am. Law Beg., N.S., 616. 3. EaUm v. Dtl, Lack, k W. Rw., 1 Am. Law Record, 121, Sup. Ct, N.Y. 4. Chicago B. kQ. Rw. v. Haamrd, 26 111., 37?. 6. Mclntyrt v. N. Y. Central Rw., 37 N. Y., 2fa7. 6. Chilena k Chicago Rw. v. Tarwood, 16 III, 468. ACCIDENTS TO TRAVELLERS. %1 " I rather think not; who could, when they elaborate such queer decisions from their brains and shew such ignorance. I know one case where an intelligent jury brought in a verdict of ' guilty ' against the plaintiff in a libel suit ; of another, where, at the close of a lengthy trial, the foreman coolly asked the judge to explain ' two terms of law, namely plaintiff and defendant.' Many of them would be decidedly improved were occasional punishment in- flicted as in the good old days of yore, when sometimes a juryman was fined and had his nose split; and the usual fate of a disagreeing jury was to be put into a cart and shot into the nearest ditch." Our train had been released from bondage and under weigh for some time, and just at this juncture the conversation was stopped by a collision taking place. Fortunately the drivers of the ap- proaching engines had discovered the danger some time previously ; they were, therefore, enabled by putting on the breaks so to deaden the speed that the trains barely touched each other — gently kissed, as it were — and although some of the passengers were jerked forward in an uncomfortable manner as if they had been suddenly punched in a sensitive part, still no persons were seriously hurt except two. One of these unfortunates was the newsboy who in passing from one car to another was thrown to the ground and had a leg badly crushed ; the other was a beauti- ful little child of some three or four summers who had been play- ing with a lady and was knocked violently down, and in falling hit his head against the side of a seat. From his pure white fore- head a purple stream was slowly trickling, dying his golden ringlets, as he lay unconscious upon his weeping mother's knee. While some tried to restore the child, and . others to console the parent, I took a business-like view of the transaction, and " with .all the homage due to a sex of which I am enthused dreadful," as Col. Morley of the Parisians would say, I approached and said, " Madam each drop of that child's blood is worth money : you may lay the foundation of his future fortune now in the days of 6 m 82 WRONGS AND RTQHTS OF A TRAVELLER. his youth by recovering damages against the company for the injury they have done to him ;" she heeded not, but I continued. " Why in one case a child two years old was wandering on a track and being run over by a train lost a leg and a hand, and the jurj'^ gave it $1800 :* why that sum put out at compound interest would " " Oh, you horrid man," exclaimed the mother, " to talk that way. But I did not buy a ticket for him, and I should have, as he is over three years old." And the mother's grief broke out afresh, as she thought she had lost this golden oppor- tunity. " Don't trouble yourself, madam, that makes no difference : the contract made with you when you bought your ticket was that both you and your child should be carried safely, and if there was any misrepresentation on your part as to the little sufferer's age, although it might render you liable for the fare that should have been paid, or for a penalty, still it does not alter the position of the company, and they were and are bound to caiTy you and the little dear safely."* "Ah!" sighed the mother, "if that nasty woman had only held liim up, and not have let him fall : — perhaps the jury will say she ought to have done so ? " I was glad to see that the thought of the almighty dollar was applying a golden salve to the mother's wounded heart, if not to the boy's forehead, for I hate tears, crocodile or otherwise, and was therefore willing to enlighten her ladyship as much as pos- sible, especially as I make it a constant practice to give advice gratuitously (when I think it won't be paid for), and putting down the usual charge for it to the account of my charitable disburse- ments ; so I said : " The misconduct of one assuming to take charge of a chUd, but 1. Bedfield on Bailwayi, vol. 2, p. 243, n. ; Ranch v. Lloyd, 31 Pena. St., 368w 2. AuHin v. Ot WaitemJlw., L.R., 2 Q.B., 442. h "Tf ACCIDENTS TO TRAVELLERS. 83 to whom it has not been entrusted, will not preclude a recovery on its part for the negligence of the company."* Alas, for the poor mother's peace of mind, there was a Job's comforter on board, and he opened his mouth, and although he did not bray as he should have done, being what he was, he spake thus: " The law in the State of Massachusetts is that, the negligence of those who have the charge of children, or invalids, unable to take care of themselves, will injuriously affect their right of action."' " Thank goodness we are not near the Hub of lb'; universe now," I exclaimed, sharply. "Well then," the wretch continued to i awl on, "in Tiugland where a f^hild five years old was in the charge of his grandmother and wa.s injured by a train wMle crossing thi; truck, it was held that he was so identified with his old grauny that on account of her carelessness an action in his name could not be maintained against the company.' And where a passing train cut otf the leg of a three and a half year old child, the court considered that the company were not responsible, unless it was shown that he had strayed upon the track through their negligence or default "♦ " Never mind his croaking, madam, these cases do not apply to you : and besides, on this side of the water a parent may suffer a four year old to cross a track by itself to school f or wander about a station,' without freeing the company from liability. Parents need only be ordinarily careful in not allowing their small fry to get into danger.^ But I must go and see the newsboy." 1. N. Penn. Sw. v. Mahoney, 57 Penn. St., 187. 2. Holly V. Botton Gat Liyht Co., 8 Grey, 123 ; Wrigkt v. Maiden & Af. Rw., 4 Allen, 283. 3. White V. Nwth Eastem Rw., El., Bl. k EL, 719. 4. Singleton v. Eastern Countiet Itw., 7 C.B., N.S., 287. 6. Lynch t. Smithy 104 Mass., 62. 6. Stout V. S. V. & P. Bw., 11 Am. Law. Tf'-eg., N.S., 226. 7. PUta>. A. ft M. Rv>. V. Pearton, 29 liaw Intell., 372. ' ' i; w 11 ill 84 WRONGS AND RIGHTS OF A TRAVELLER. Off I started ir. tanter- !!;j. " For a virtuous action should never be delayed. The impulse comes from heaven, and he who strives A moment to repress it, disobeys The god within his mind." ' I found the youth in the baggage car with his leg tightly band- aged. The pallor spread over his countenance, the beads of per- spiration on his brow, and his closely pressed lips, told that his sufferings were gteat ; but with Spartan courage he repressed every voluntary sign of pain. A group of rough, yet tender men were gathered round him, and they told me that it was feared he would have to lose his leg ; that he was the only son of his mother, and she wa.s a widow with no stay nor support save the earnings ot her boy. " I say, mister," said one of the party to me, " I kind of calcul- ate you are a lawyer from what I heard you say before we left the station, and I want to know whether a man who has not got a ticket can sue the railway for damages," I replied, "Every person is a passenger and entitled to be carried safely (so far as due care will provide for his safety), who is lawfully on the train ;* and the onus is on the company to prove affirmatively that he is a trespasser.* Any one permitted to ride in a train as a passenger is entitled to demand and expect the same immunity from peril whether he pay for his seat or no : the confidence induced is a sufficient legal consideration to create a duty in the performance of the service undertaken f so, if one is injured by the culpable negligence or want of skill of the company's servants he is entitled to recover although he is a dead- head.* Thus, a newspaper reporter travelling on a free ticket 1. Ot. Western of Canada v. Brand, 1 Moore P.C., N.S., lOL 2. Penn. Rw. Co. v. Books, 7 Am. Law Reg., N.S., 524. 3. Cngys v. Bernard, Holt, 13 4. Ohio & Miss. Rw. v. Muhling, 30 111., 9. h: ACCroENTS TO TRAVELLERS, 85 —even if granted to another brother of the press;* the presi- dent of one company riding by request of the president of an- other;* a mail-clerk travelling in charge of the mail bags/ and a child for whom no fare has been paid ;* were all held en- titled to damages when injured. Nor — though this is rather beside the matter — does the fact that the train has been hired for an excursion excuse the negligence, or remove the liability of the company."^ " All right," said the man to the boy ; " cheer up, sonny; you will get a pot of money for this that will keep you like a fighting- cock till you get round again." " I did not say that," I remarked, gloomily shaking my head. " Why, what do you mean ? " was anxiously queried by several. " Railway companies may stipulate for exemption from all re- sponsibility for losses accruing to passengers from the negligence of their servants, unless, indeed, it arise from their fraudulent, reckless or 'wilful misconduct f and where it has been agreed that, in consideration of a free pass, the passenger should travel at his own risk, or where he takes a free ticket having an express condition printed thereon ' whereby the holder assumes all. risk of accidents and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for an injury to the person, or for any loss of or injury to the property ' such agreement or condition is good, and will exclude all liability on the part of the company for any negligence (save gross or wilful)^ for which they would other- 1. Ot. Northern Bw. v. Harrmn, 12 C.B., 576 ; Oillenwater v. Maditon & Indian Sw., bind., 3^0. 2. Phil, ifc Read. Rw. v. Derhj/, 14 How. (U.S.), 483. 3. CoUett V, London di N. W. R., 16 Ad. & EL, N.S., 984; Nolton v. Western Bw,, 10 How. Pr. K.,97. 4. Austin \. Qt, Weafern /Jio., supra. 5. Skinner y. London, R. db S. C. Rxo., 5 Ex., 787 ; Cleveland v. Terry, 6 Ohio, N.8., 670 ; but Bee Peoria Br. Ass. v. Loomis, 20 111., 235. 6. Welles v. Jf. Y. C, 26 Barb., 041 ; Indiana Central Bw. v. Afundi/, 21 In»l., 48. 7. Ind. Cent. Bw. v. Mundy, aupra ; W-Xles v. N. Y. C. Rio., 26 Barb., 641 ; BisnU T. N. Y. C, 29 Barb., 602; III. C. B. v. Bead, 37 lU., 484. m Hi. j I 1 I 86 WBONGS AND KIGHTS OF A TRAVELLER. wise have been liable. That has been held in Canada ;* in New- York State,' in other States and in England the company is not even liable for wilful or gross negligence.' But of course such an agreement does not extend to an independent wrong, as an assault or false imprisonment, or any rights as to criminal proceed- ings,* nor where the traveller is carried under an agreement between the company and some third party which says nothing about the traveller taking the risk himself."^ "What's the use in such a long palaver," rudely interrupted my questioner, " the boy had no ticket at all." " Well, where a newsboy of the name of Billy Alexander, while on the platform of a station, was struck by a piece of wood pro- jecting from a passing car and so hurt that he died, it was held to be a good defence that he was a newsboy in the employ of Chisholm, selling papers on the company's trains under an agree- ment between Chisholm and the company, that the latter should not be liable for any injury to the newsboys or their goods, whether occasioned by the company's negligence or otherwise."' " Do you mean to tell me," cried a listener, indignantly, " that in this free land of ours the life of a child can thus be sold by his employer ?" " Ah," I returned, " that is a question which "Richards, C. J., did not decide : the case, however, has gone to the Court of Ap- peal. But if you want to know anything more on the subject call on me at my oflSce, and I shall be most happy to attend to you," I added, as I leit the car. I now retired to my berth in the Pullman. I was scarcely settled there ere I heard loud and angry voices proceeding from 1. Sutherland v. Ot. W. Rw., 7 C.P., 409 ; Woodrujf v. O. W. R., 18 Q.B., 420. 2. Wellet V. JV. Y. C, 26 Barb., 641. 3. McCawley v. Furnm Rw., L.R., 8 Q.B., 67. 4. Tbid. 6. Woodruff V. G. W. R., 18 U.C, Q.B., 420. 6. Alexander v. Toronto ds N. Rw., 32 U.C, Q.B., 474. r\- I >: h ...1 ACCIDENTS TO TRAVELLERS. 87 m the front end of the car, and recognised our Hamitic conductor's tones in the words — " I tell you, sah, this is a sleeping car, and you can't come in without a ticket." *' Shure and I had a ticket, and its after slaping I want to be ;" was the response in Milesian accents, broad and sweet. " Whar is it ? " " Shure and I have lost the plaguy thing." " If you have lost your ticket, sah, can you remember your berth ? " asked the African. A solemn pause, during which Paddy ruminated deeply, then he exclaimed, " Och, by jabers, it is a hard thing to remember that, though I know I was there at the time ; and my old mother, rest her bones, tould me that I was bom on Patrick's day in the morning, the year afore the famine, and more by token our old sow had a fine litter of pigs that selfsame day." When the burst of laughter that greeted this reply had died away, I quickly subsided into the " arms of Murphy," and knew nothing more of railroads, railroad-law, or railroad travelling, until I was called by the descendant of Noah's naughty son, and informed that we were just at the station which I had left some days previously, and where my journeyings were for a time to end, and from which in a few minutes I would be transported to the bosom of my beloved spouse. Right glad was I when once again I stood — mens sana in corpore sano — on the platform of the depot of my native city, and saw the cabby coming from the baggage car with my traps on his brawny shoulder. I will draw the veil of modesty over the reception that awaited me at home. ^^1 . ;1l '1 4 ill •I'l.t' i:i.h :M CHAPTER X. INJURIES TO PASSENGERS AND EMPLOYEES. inefficient line — Passengers hurt — Employees killed — Lord Campbell's Act — Com- pensation for death — Solatium for wounded feelings — Scotch law — American law — Hen-pecked husband's will — The rule in Massachusetts — in Pennsyl- vania — in Maryland — in Canada — Hard to decide — Annuity tables — Bad or diseased — Insured — Children injured. — Parents compensated — Amounts ob- tained. — A leg at $24,700 — For what compensated — Chances of matrimony — Servants injured — Fellow servants — Different companies— Which one to sue — Strangers' acts — 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 practice 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 enquiries 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, amd I want your adArice 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. H: 1 INJURIES TO PASSENGERS AND EMPLOYEES. 89 " 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 ont pocket and put it into another. Now what are yourquestioni 1" 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 Kailway gave way " " That is primd facie evidence of the insufficiency of its con- struction; 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 assem- bly, the Judicial Committee of the Privy Council."* " 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 ? " 1. Ot. Western Bio. v. Fawcett—Same v. Brand, 1 Moore, P.C.C, N.S., 101—9 Jur., N.S., ;«9. t ' T. % i f 'i ■<; 90 WRONGS AND RIGHTS OP A TRAVELLER, " Under what in England is called Lord Campbell's Act (9 & 10 Vic. ch. 93), the Canadian Act^ 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 personalia 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.* 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 sus- tained,"' 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 enquire 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 1. Con. Stat. Can., ch. 78. 2. WilleU V. N. Y. dk Erie Rw., 14 Barb., 385, where a lunatic vaa left by himself and in consequence was killed. 3. Blake v. Midland Rw., 18 Q.B., 93. -i. ijgit 1 INJURIES TO PASSENGERS AND EMPLOYEES. 91 not come in pari passu with other children, and would be cut oflF from the solatium. If a jury were to proceed to estimate tfie re- spective degrees of mental anguish of a widow and twelve child- ren from the death of the pater-familias, a serious danger might arise of damages being given to the ruin of the defendants : espec- ially 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, step- father 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."' " 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, ewing to his bankruptcy or dissipated habits."* " Yes," I replied, " but the Scotch are always more liberal than other people ; they grant a solatium to a man injured in his hap- piness 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 f it being a pure question of pecuniary compensation, and nothing more, which is contemplated by the Act.* Nor, I believe, can a husband recover in New York State for the death of his wife.® But where the damages are for the next of kin, the services of the de- ceased mother in the nurture and instruction of her children, had she survived, may be properly considered." I wonder what is the rule as to the solatium in the Republic — let us see." 1. Blakev. Midland Rw.. 18 Ad. & Ell., N.S., 93 ; Pym v. Great Northern Ew., 4 B. & S. (Ex. Ch.), 396, 2. Enk. Inst., 692, note 13. 3. In argument Oillivard v. Lancaster S Yorlahire Rw. Co., 12 L.T., 356. 4. Amuworth v. South Eottem Rw. Co., 11 Jurist, 758. 5. Lucai T. N. Y. C„ 21 Barb., 245; Worley v. Cincinnati H. ds D. Rw., 1 Handj. 481. 6. TUky T. Hudion River Rw., 29 N.Y., 262. h i iii I It 92 WRONGS AND RIGHTS OF A TRAVELLER. 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 admira- tion. " Here it is : 'There seems no doubt, according to the best con- sidered cases in this country, that the mental anguish, which is the natural result of the injury, may be taken into account, in estimat- ing damages to the party injured in such cases, although not of itself the foundation of an action."' "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 them ' vidders' 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 re- ferred to in the will of that unfortunate wretch who died in Lon- don, in 1791. I must read you that will, though it is rather be- side 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 Augus- tus, the skill of Pyrrhus, the patience of Job, the philosophy of Socrates, the vigilance of Hermogenes, would not suffice to sub- due 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 1. Canning v. WiUiamsUmn, 1 Cuah., 451 ; Moore v, Avhum & Syracaie Bw., 10 Barb., 623 ; bo in California, Fairchild v. California Stage Co., 13 Cal., 599. ^mm INJURIES TO PASSENGERS AND EMPLOYEES. 98 has corrupted and estranged from me : weighing, maturely and seriously, all these considerations, I have bequeathed and I do be- queath, 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* 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 f but it is sufficient if one does not die for fifteen minutes, although insensible from the first.' In Penn- sylvania, 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 life- time.'* In Maryland the jury was directed to give such dama- ges as would yield the family of the deceased the same support as they would have obtained from the labour 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."' " I see," said Tom, who seemed unwilling that I should do all the talking, " that our owr Chief Justice Robinson, on one occasion, confessed himself utterly a,: ;r l^ss to make a satisfactory computa- tion 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 determininir whether they would have been better off if the father's life had 1. 1842, c. 89. 2. HofUnbeck v. Berkshire Rw., 9 Cush., 481. 3. Bancroft v. Boston 1 1 B 'V,' ■ \ 104 WBONOS AND RIGHTS OF A TRAVELLER. many distinct tickets for each road, sold by the first company as agent for the others;^ and each successive company is re- sponsible for all injuries to through passengers while upon its own line and in passing to the next company's line.' The companies cannot be considered partners so as to render each liable for in- juries or losses occurring upon the whole route."' " 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 ;* and in England it has been decided" 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 hap- pens, would incur if the contract to carry had been entered into by them. The company issuing the ticket is liable for the negli- gence 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 carry- ing the passengers from one end of the journey to the other, so far as is within the compass of railway management." In fact the 1. Slprague v. Smith, 29 Vt., 421 ; Hood v. If. Y. «fc N. H. Sw., 22 Conn., 1. 2. Knight v. P. S. A P. JR. Rw., 66 Me., 234 ; 2 Bedf. Am. Rw. cases, 468. 3. mUworth V. Tartt, 26 Ala., 733. 4. McCormick v. Hudton, 4 E. D. Smith, 181. 5. Great Western Bw., v. Blake, 7 H. & N., 987, Ex. Ch. 6. Thomas v. PJiymney Bw. Co., L.R., 6 Q.B., 266, Ex. Ch. ; and John v. Bae»n, L. R, 5 O.P., 437. ■t n 1 INJURIES TO PASSUNGEKS AND EMPLOYEES. 105 and 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 ;' 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."^ " 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 undirect 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; the same doctrine was held where a stranger had wilfully and maliciously placed a stone up- on the track which threw off* the train.* 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.® So, where the covetous greed of a young bullock induced him to 1. Redfieldou RailwayB, vol. 2, 303 ; Railway Co. v. Barron, 6 Wall, 90 ; Aylea v. S.E. JKw., L.B., 3 Ex., 146; Birkett v. Whitehaven Junction Rw., 4 H. & N., 730; Sprague T. SmUh, 9 Verm., 421, was an exceptional case. 2. Wright v. Midland Rw., L.R., 8 Ex., 137. 3. Uytton v. Midland Rw., 4 H. & N., 615 ; Great Western Rw. v. Blake 7 H. & N., 967, £x. Ch. ; Weeds v. Saratoga Rw., 19 Wends., 634. 4. Latch V. Rimmer Rw., 27 L'J., Ex., 166 ; see also Cunningham v. Grand Trunk JBw., 31U.C., Q.B.,350; Curtis \. Rochester & Syracuse Rw., 18N.Y., 834; Teiriery T. Peppinger, 1 Wallace, 643 ; Thayer v. St. Louis, Ac, 22 Ind., 26 ; PiUs. Ft. Wayne S Chicago v. Maurer, 21 Ohio, U.S., 421. 5. Ooldey v. Penn. Rw., 30 Penn. St., 242. *m 106 WRONGS AND RIGHTS OP A TRAVEI.LER. I • force his way through a hedge to gain some tempting grass ihat 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 consider- ing that there was no statutory obligation on the company, to- wards their passengers, to keep up the fences."* " 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." 1. Buxton V. North Eattem Rw., 3 Q.B., L.B., 549. •I' 1 r' CHAPTER XL BAOOAOE AGAIN. Epistolary model — Dog lost — Quitting a moving car — When liability for lag- gage commences — Goods of third party — Left in the car— Baggage lost — English rule — Limited liability — Personal luggage, what it is — ^Watob — Rings — Pistol — Railroad porter — Hotel 'bus — Tools and pocket pistols^— Fiddles and merchandize — FarewelL M Y Dear Wife, Your letter announcing your safe arrival at M- -if indeed, you can be said to have arrived safely considering all that befell you, made me happy this a.m. The tale of your disasters was really quite rmusing, and I have passed some of my lonely hours most agreeably considering the law on the various points. So poor Fox is gone ; doubtless the mangled remains of that poor cur lie stark and cold upon the railway line, and crows are gathering in the leaden skies to assist at his funereal obsequies ; or, perchance, he may be gracing the board at some restaurant in the familiar form of sausages. You say it appears that he slipped his head through the noose of the string by which he was tied in the baggage car, if this be so the baggage man might have seen that he was not securely fastened ; and it was his duty to lock him up, or otherwise keep him safely.' Make out your bill, dearest, we'll make the company pay. At what figure do you value him ? (I had, however, better add that in a late case where a dog wctS fastened in the ordinary way, and there was nothing to show that he was likely to escape, the carrier was held 1. Stuart v. Crawley, 2 Stark, 324. i 108 WRONGS AND RIGHTS OF A TRAVELLER. justified in trusting to the owner having properly secured the animal).' Poor Miss Smith ought to have been more careful when she would insist upon going into the car to bid you a last adieu, even though her young man was waiting for her. She most certainly should not have attempted to leave the carriage after it was in motion, and when the conductor warned her not. Even if the conductor was to blame in negligently starting the train without the usual premonitory screech, and the unnecessary jerk assisted in the catastrophe, the company was not responsible ; her conduct was the mere outcome of that perverseness which is the char- acteristic trait of the feminine nature.^ You never told me that Eliza Jane had takea her trunk to the station some half dozen hours before the train was to start ; it was rather verdant of her so to do. I presume the desire to have a quiet drive with her John was the motive. The loss of her finery will teach her a lesson ; however, it will not really matter, as she can recover the value of her " things," for the responsibility of the company as common carriers attaches as soon as their ser- vants receive the baggage of the traveller at the proper place ; and the giving of the check does not control the time of the re- sponsibility attaching. The fact that you took and paid for her ticket will not prevent E. J. maintaining an action for her loss '* for it makes no difference whether a passenger pays her own f\re, or some one else kindly does it for her.^ In fact, if one is travelling on a free pass by which the company stipulates to be excused from all loss or damage, still they are responsible for the wilful or careless misconduct of their servants.' 1. Bkhardton v. North Eastern Rw., L.R., 7 C.P., 75, note. 2. Lucas V. Taunton & New Bedford Rw., 6 Gray, 64. 3. Camden A Amboy Rw, v Belknap, 21 Wendell, 364 ; Hickox v. Nangatuck Rw., 31 Conn.,28L 4. MarshaU v. York, N. & B. Rw., 11 C.B., 665. 5. Van Horn v. Kemiet, 4 E. D. Smith, 463. 6. Mobile akes to provide free transit to and from the cars, and you lost your book in his 'bus, he is liable.* Although it deeply pains me to find the slightest fault with my spouse, still I must say that I think that you have been a little careless during this trip ; in fact you have shown that the character your mother gave you was not quite a libel, when she said that you would lose your head were it not securely fastened on, and your tongue were it not in incessant use. While I am writing to you in this strain, I may as well give you a little further information concerning what you may, and what you may not, carry as personal baggage ; though doubtless you will soon forget all that I say, or if not— at all events — will not heed it, such is the forgetfulness and perverse- ness of that sex whose love, as Prince Charles Edward said " is writ on water, whose faith is traced on sand." Besides what I have already mentioned, if you are a sports- man you may take a gun, if a disciple of the gentle Izaak Walton, the necessary instrurnenta hella ;* if you are a joiner — I don't mean a parson — you may take a reasonable amount of tools with your clothes,* although perhaps you can't;* you may take new clothing and materials for yourself and family, though not for others f if you are of a nervous disposition and desire to defend yourself against thieves and robbers you may take a pocke* pis' i -don't suppose I mean a brandy flask -^if you ara a t ijJicose man of honour a couple of duelling pistols will be aiio'./ad." although in Maryland, one vvas not allow- 1. Dickenton v. Wine' eder, 4 Oush., Il8. 2. Macrow v. Great » iatern Rw., L.R., 6 Q.B., 623 ; Hawkint v. Hoffman, C. Hill, N.Y. R«p., 689. 3. Porter v Hildebrand, T. Harris Henn. Rep., 139. 4. Bruty v. Orand Trunk Rw., 32 U.C., Q.B., 86. 5. Dexter v.' a. B. & N. Y. Rw., 42 N. Y., 326. X Woods V. Devon, 13 111., 748 ; Bruty v. a. T. »»., 32.U 0., Q.B., 66, 8 i^ i%i ' Wi li M illl! ..:), lU WRONGS AND RIGHTS OF A TRAVELLER. ed to take a colt.* A theatre goer may take an opera glass f a student on his way to college, manuscripts necessary for the prosecution of his studies f but an artist cannot carry his pencil sketches as luggage in England; although Cockburn, C. J., thought he could.* J. Wilson, in a Canadian case, thought that one musically inclined might take a concertina, or a flute or that instrument in the playing of which a western writer says " the resined hair of the noble horse travels merrily over the intestines of the agile cat;'" but fortunately for mankind in general the majority of the court held otherwise. You cannot parry merchandize, either in England.^ th'j United States,* or the Dominion of Canada,' unless, in- deed, it is carried openly, or so packed that the carrier can s^ie what it is and does not object to it ; nor samples, if you belong to the confraternity of commercial travell«^t3;*" nor can a banker take money as such ;" nor can one carry ^'ilver spoons, nor surgi- cal instruments, unless he is a disciple ot Galen and Hippo- crates." But really, my dear, I must draw these remarks to a close, as the parsons say in their sermons. You cannot complain that this letter is too short. There are several items of news — of babies born, brides be-wed, bodies buried — ar ": such like trivialities, of which I might have tola you ; but as you spoke about your 1. OUet V. Fauntleroy, 13 Md., 126. 2. Toledo «fc Wahash Rw. v. Hammond, 33 Ind., 379. 3. Hopkint v. Wtitcatt, 7 Am. Law Reg., U.S., 533. 4. Mutton V. Midland Rw., 4 H. & N., 616. 5. Macrow v. Oreat Western Rw., L.H., 6 Q.B., 623. 6. Bruty v. Grand Trunk Rw., 32 U.C., Q.B., 66. 7. Great Western Rw. v. Shepherd, 8 Ex., 30 ; Macrow v. Oreat Western, supra. 8. Pardee v. Drew, 26 Wend., 459, Collins v. Boston A Maine Rw., 10 Gush., 606. 0. Shaw V. Oraitd Trunk Rw., 7 U.C, C.P., 493. 10. CahiU V. London A N. W. Rw., 13 C.B., N.S., 818 ; Belfast, B. L. A G. Rw. v. Keys, Ho. Lords, Cm., 556; Hawkin$ v. Hoffman, 6 Hill, 686 ; Dibble v. Brown, 12 Ga.,217. n. Phtlp* V. London A N. W. Rw., 19 C.B., N.S., 321. 12. OUe$ T. Fauntleroy, 13 Md., 126. m BAGOAOE AGAIN. 115 ■i losses I concluded that I would send you an instructive note, and let vain trifles rest quiescent until your return. Though you may think that this epistle smacks somewhat of business, yet please reflect that you are my sleeping partner and spend the greater portion of the profits of my office, and so 'tis becoming that you should be slightly acquainted with legal mat- ters, especially as you are the daughter of my mother-in-law. Adu ! adu ! reservoir ! Your Spanish Grandee. 9ff I w CHAPTER XII. TELEQRAMS AND FIRE. AbmuI^— Authority of officials — A dear kiss — Arresting passengers — Telegraphic messages — Interesting examples — Who can sue for mistake — Fire-fiend's pranks — Train arrives — Liability ceases — Trunks in warehouse — Baggage left at station- issolving domestic view. WHEN the ^ rived on which my wife was to return to rae, I deten':....v.i to go and meet her at N., so as to be on the spot to keep an eye on her baggage when she reached the sta- tion and avoid further loss and accident. I bought my ticket and got into the proper car, but just as the train was on the point of starting I asked the porter if I was in the right carriage, he replied, I was not, and must get out ; I hesitated, as the train was in motion, so he caught hold of me and violently pulled me out. We fell on the platfoi.n and I was con- siderably hurt, and what was as bad, the cars went on and left me behind. I went in search of the general superintendent of the line, as I was determined to seek redress, for a person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances which arise, when an act of that class is to be done ; consequently he is answerable for the wrong of the person so intrusted, either in the manner of doing such an act, or in doing such an act under circum- stances in which it ought not to have been done ; provided that what is done is not done from any caprice of the servant, but in the course of the employment.' And in a similar case it was held that the act of the porter, in pulling a man out of the car- Tiage, was an act done within the course of his employment as the 1. Bayltjf y. JIfancKater Jkc, L.B., 7 C.P., 418. \ TELEGRAMS AND FIRE. 117 company's servant, and one for which they were therefore respon- sible.* Railway companies are liable for all the acts of their servants and agents committed in the discharge of their business and their employment, within the range of such employment, whether wilful or negligent.' The injured person has to show that his assailant was not only a servant of the company, but that he had authority so to treat him, or that such conduct was subse- quently ratified by the company f although the daily press asserts that a jury gave a verdict of Sl,000 against the Chicago and North Western Railway because a conductor of theirs wrong- fully and without their order or approval kissed and caressed a young lady passenger. A railway is supposed to have at their stations officers with authority to do all such things as are necessary and expedient for tlie protection of the company's property and interests, and for the apprehension of wrong doers ; and where there are persons present who are acting as if they had express authority, it is prima facie evidence that they had such authority ;* and the company will be answerable if their officers, in the exercise of their discretion, make a mistake and apprehend an innocent f)er8on, or commit an assault through an excess of duty, or do any other act that cannot be justified.* And it makes no dif- ference with regard to the responsibility of the company that the servant disobeyed the directions of his superiors, if he was acting within the scope of his employment at the time.' But when he does an act which he has no authority to do, the company is not 1. Bayley v. Manchetter, ., 2 E. & B., 822 ; Moore v. Metropolitan Rw., L.R., 8 Q.B., 1 *! ?{ l! 36. 6. Phil. Jk Read. Rw. v. Derby 14 How., U.S., 468. 118 WRONGS AND RIGHTS OF A TRAVELLER. ,i I liable ;* nor are they when he does an act which the company themselves have no authority to do.' And thus a seeming par- adox arose in one case where a station master arrested a man for not paying the fare of a horse he had with him, and it was held that (as the company itself could not have done so) the company was not liable, though had the zealous official arrested him for not paying his own fare, damages might have been recovered against the company.' Thus ruminating over my wrongs and chewing the bitter cud of hatred and malice, I found my way into the office of the chief official, but as that important functionary was non eat, I had to nurse my wrath until some more convenient season. Just thea a f ' nd came up and shewed me a telegram which seemed perfectl}'^ enigmatical and worthy of the Sphinx of yore, and we thua gi>t speaking concerning such messages (or as they are often rightly cali»^d tell-o-crams). He asked me if I had ever noticed the case where a gentleman telegraphed for two hand bou- quets, and the operator changed hand into hund and added red, making the order for " Two hundred bouquets." The florist de- lighted at the extensive order, procured a quantity of expensive flowers, which the other party of course refused to accept, so the poor flower-man had to sue the company for damages, which he recovered,* as well on the ground of breach of contract, as of breach of duty, the telegraph company being public servants. " I believe that where the company gives notice that they will not be responsible except for repeated messages, such a condition will be held good," I said. " Yes." There have been several cases shewing the damage which the company will have to pay for mistakes in the perfor- 1. Edward* v. London 126 WRONGS AND RIGHTS OF A TRAVELLER. ble for accidents,* 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 har- ness 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 equip- ments of the conveyance, drivers, horses, harness were fit and suit- able.'' 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 ;' or let other persons get in- side," 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 myself and my wife 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."* With withering sarcasm the eldest maid replied, " Here is your money, sir." 1. Bremmerv. Wtiliamt, 1 C. & P. 414 ; Sharp v. Oray, 9 Bing., 467. 2. Crofts V. WaterfMute, 8 Bing., 321 ; Jonet v. Boyct, 1 Stark., 493 ; Stokes v. Saltan- hall, 13 Peters, 181 ; Ingalls v. Bills, 9 Matoalf, 1. 3. Long v. Home, 1 C. & P., 611. 4. Ker v. Mountain, 1 Esp., 27. EVEHYTHING SOUND, AND EVERYONE CAREFUL. 127 ■■ r 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 leceived. 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 doft. 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." ' At this the man of fares subsided, and we resumed our slow jog-trot without any diminution of numbers. The jolting of our vehicle 30on 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 fantened, the carrier would not be liable for any loss or damage liappening to it,* 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 humour ; with much grumbling he consented, and all was soon made taught and right. 1. Howland v. Briff Lavinia, 1 Peten Adm. 126 ; Detouchu v. Peek, 9 Johnaon, 210. 2. Walker v. Jackton, 10 M. ft W., 101. ; ■ M i. '^Mtv S ' 'i J! 128 WRONGS AND RIGHTS OF A TRAVELLER. To make up for lost tiue, we now rushed ahead at a terrific pace, considering the clumsy, cumbrous, jingling, jerking concern in which we were travelling. The ladies within 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 inju- ries that might happen to either oui-selves or our baggage, in con- sequence of his racing in such an improper manner.' " All right," said he, " I'm responsible, and I am ma . too, here ; so I'll do just what I like." Scarce had he uttered these words when we drew near a larpe 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 perfor- mances in the gymnasium, of the two threatening evils I chose what appeared the least, 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 conver- sation took place bf^tween 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 true," I replied, " if I had been the size of the little husband no bigger than a thumb what was put into a quart pot 1. Mayor r. Humphriet, 1 0. ft P., 261 ; Oough v. Bryan, S DowL, 760b M \ ■VS. EVERYTHING SOUND, AND EVERYONE CAREFUL. 129 and made to beat a drum ; but &]r. 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." * " 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 enter- tained a well founded apprehension of being decapitated by that ugly branch."* 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 ^eys, Chelsea. When in front of the gateway leading to the stable-yard of that inn, the coachman requested the travellers to alight, as the pas- sage 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, i.nd then lashed uj) his horses. The c^ach 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 re- covered, however, with £100 damages.^ I said: "Of course, to excuse the driver from responsibility, it 1. JngalU v. BUU, 9 Met. , 1 ; Stoka ▼. SalUmhaU, 13 Pet. (U.S. ), 181 ; Fnnk v. Pot- ter, 17 III., 406. 2. Jonu V. Boyee, 1 Stark., 493. 1 Dudlfy V. Smith, 1 Camp., 167. 9 .!(:;■ I 1 .,!! I 130 WRONGS AND RIGHTS OF A TRAVELLER. ^ ! X f must always be shown that the plaintiff was guilty of negligence which contributed directly to the injury.* 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 advice 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."* "It is clearly settled," returned my new made acquaintance, "that a driver, or his master, although he does not waixant the absolute safety of his passengers is, nevertheless, answerable for the smallest negligence f 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."* " An American, however, m gall and bitterness was told by a C'ourt, that carriers are not liable for injuries happening through hidden defects which could not from the most careful and thorough examination be discovered."'' •' Yes," interrupted my friend, " but in the State of Illinois, a Potter, who owned a stage-coach, was held liable for an injury tu a passenger, which resulted from the breaking of an axletree, through the eflfect of frost."* " Long ago the Courts in England held that a man established a prima 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 j)roprietor must show, if he could, that his vehicle was as 1. Colegrove v. N. Y. it Harlem tfcc, Rw. 6 Duer., 382. 2. Keith v. Pinkham, 43 Maine, 501 ; Laekatoana Bw. v. Cheneworth, 62 Penn. St., 382. 3. Harrii v. Gostar, 1 G.