\EATIONS 
 
 . AND FLIGHTS 
 OF A TRAVELLER 
 
 
GIFT OF 
 
 Saacroit 
 LIBRARY 
 
LEGAL RECREATIONS. 
 VOL. IV. 
 
 THE LAW OF THE EOAD. 
 
THE 
 
 LAW OF THE ROAD ; 
 
 WRONGS AND RIGHTS OF A TRAVELLER. 
 
 R. VASHON ROGERS, JE. 
 
 A BARRISTER AT LAW OF OSGOODE HALL. 
 
 SAN FRANCISCO: 
 SUMNER WHITNEY AND COMPANY. 
 
 NEW YORK: KURD AND HOUGHTON. 
 rtfjje: Cfje Etbrrs ttre 
 
COPYRIGHT, 1876, 
 BY SUMNER WHITNEY & CO. 
 
 GIFT OF 
 
 Bane roil 
 
 LIBRARY 
 
 RIVERSIDE, CAMBRIDGE: 
 
 STEREOTYPED AND PRINTED BY 
 
 H. 0. HOUGHTON AND COMPANY. 
 
PKEFACE 
 
 CANADIAN EDITION. 
 
 THIS little work does not aspire to compete 
 with the learned 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 instruction with entertainment, informa 
 tion with amusement, and to impart knowledge 
 while beguiling a few hours in a railway carriage, 
 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. 
 
 861370 
 
VI PREFACE. 
 
 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 sub 
 stance of the following chapters, 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 the 
 reader professional or otherwise will bear 
 with them, " for if the work be found of sufficient 
 merit to require another edition, they will prob 
 ably be corrected, and if no such demand is made 
 the book has received as much labor as it de 
 serves." 
 
 The author is very " umble, coming of an 
 umble family," like the celebrated Uriah not 
 the Hittite, but he of the Heap tribe and he 
 will 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 hundred 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." 
 
PREFACE 
 
 TO THE 
 
 AMERICAN EDITION. 
 
 IN this present year of grace the British Lion is 
 gently purring in the centennial eyry of the Ame 
 rican Eagle ; thither also, the Canadian Beaver, 
 with a maple-leaf, the emblem of sweetness, in 
 his mouth, has wended its way : a striking con 
 trast to the deeds of one hundred years agoiie, 
 when the followers of the quadrupeds were striving, 
 teeth and claw, to send the lovers of the biped to 
 that bourne from which no traveller returns. 
 
 The time seems therefore opportune for a 
 member of the Beaver family to present to the 
 worshippers of the mighty Eagle an edition of a 
 little book touching upon the wrongs and the 
 rights of those of the republic, and from distant 
 lands, who travel upon the 74,000 miles trav 
 ersed by the iron horse, or the hundreds of 
 thousands of leagues frequented by nags of more 
 mortal frame, on the American continent. 
 
 The following is a Canadian book, revised, en 
 larged, abridged (the watery element being omit- 
 
Vlll PREFACE. 
 
 ted), 1 and rendered more suitable to the palate of 
 Uncle Sam by the admixture of many more of the 
 wise sayings of the men learned in the law of the 
 United States. Originally published anonymous 
 ly, the author has been induced, by the kind no 
 tices of his little book that have appeared, to 
 acknowledge his bantling ; and he would seize this 
 opportunity of rendering thanks to those critics 
 who, when writing of the first edition of his work, 
 dipped their pens into a solution of sugar and 
 honey and not into an extract of wormwood, vine 
 gar and gall. 
 
 R. V. R. JR. 
 KINGSTON, ONTARIO, 
 June, 1876. 
 
 1 Also the List of Cas*s. 
 
WRONGS AND EIGHTS OF A 
 TRAVELLER! 
 
 CHAPTER I. 
 
 DEIVING. 
 
 New Year s Day. Collision with Old Bolus. Must I pay for my 
 Servant s Deeds. Deaf Man run over. Effects of an Avalanche. 
 
 Housemaid injured by Coachman. Wives, Snakes or Eels 
 Icy Walks. - Falling Snow. Board Walks. Driver and driven. 
 
 Right Side or Wrong. Look out. Walkers. Sunday Driv 
 ing and Visiting. Church-going. Sunday Laws. 
 
 MY life, so far as the readers of this sketch are 
 concerned, may be taken to have commenced on 
 the New Year s morning after I had married a 
 wife, and set up a trap with the necessary accom 
 paniments of a horse or two and a man. 
 
 It was my intention, pursuant to the time-hon 
 ored custom, to go out in the afternoon with a 
 friend to call upon my extensive circle of lady 
 acquaintances. At 10 A. M. Mrs. Lawyer came 
 into ^my library frantic and breathless ; the pal 
 pitations of her heart having somewhat subsided. 
 and her heaving bosom sunk to rest, she ex 
 claimed : 
 
 W. &R. OFT. 1 
 
DRIVING. 
 
 " O Eldon, that horrid John must be drunk I 
 He took out the horse and sleigh this morning, 
 and when driving down Main Street, he ran into 
 Dr. Bolus s cutter and knocked it all to pieces." 
 ;:\i*Ah, my/ c^ar jljlizabeth, calm your troubled 
 rm ritT;" "f*" coolly " replied, " John, without my 
 Jnpwl^lg^" I hd \yVpngf ully, took my horse and 
 sleigli Tor so^ne* "purpose or other of his own, and 
 ran into old Bolus s turn-out, you say : well, the 
 law is perfectly clear that I am not responsible for 
 the injury, as I did not intrust my servant with 
 the sleigh. 1 I may tell you for your edification 
 that the general rule is that a master is not liable 
 for the tortious act of his servant, unless that act 
 be done by an authority, either express or implied, 
 given him for that purpose by the master ; 2 or as 
 Mr. Baron Parke puts it, if a servant is going on 
 a frolic of his own, without being at all on his 
 master s business, the master will not be liable." 3 
 
 " Oh, but dear Don, I forgot to tell you that I 
 sent him to the confectioner s for some cakes ; but 
 I told him to drive along West Street." 
 
 " Confound it, that s a different matter. The 
 Doctor will rush off to friend Erskine, and I will 
 have to pony up for the damage ; because, as that 
 rascal John was driving on his master s business, 
 
 1 M Manus v. Crickett, 1 East, 106; Croft v. Alison, 4 B. & Aid. 590; 
 Sleath v. Wilson, 9 C. & P. 607, qualified by Seymour v. Greenwood, 6 II. & 
 N. 359, 7 II. & N. 355 ; Lamb v. Palk, 9 0. & P. 631 ; Sheridan v. Charlick, 4 
 Daly, 338. 
 
 2 Roe v. Birkenhead, etc., Rw. Co., 7 Ex. 36. 
 s Joel v. Morison, 6 C. & P. 501. 
 
DRIVING. 3 
 
 it matters not that he disobeyed his express orders 
 in going out of his way, or made a detour to 
 please himself." l 
 
 " Yes, but Eldon dear," continued my wife, 
 " it was not on his master s business, it was on 
 mine." 
 
 " Stupid, what difference does that make ? " re 
 plied I, impatiently ; and then, seeing that my 
 wife did not like the adjective, I added more feel 
 ingly, but rather vaguely, " Don t you see, I m 
 his master, you are mine, and so must be his 
 also." 
 
 " Heigh-ho ! " sighed the wife of my bosom. 
 " But I have not told you all. After the collision 
 the horse ran against an old man who was walk 
 ing along the street, knocked him down, and hurt 
 him : but, of course, he had no right to be on 
 the road, when there was a good sidewalk for 
 him." 
 
 " Of course he had a right to be on the road, 
 just as much right there as the horse and sleigh 
 had, even though he were sick and infirm ; and it 
 was John s business to take care where he was 
 going ! " 2 
 
 " Yet John says he told the man to get out of 
 the way, and he would n t do it ; " pleaded my 
 wife. 
 
 1 Limpus v. London Omn. Co., 1 II. & C. 526 ; Joel t>. Morison, 6 C. & T. 
 501 ; Mitchell t*. Crassweller, 13 C. B. 237; Seymour v. Greenwood, 7 H. & 
 N.356. 
 
 2 Boss v. Litton, 5 C. & P. 407 ; Brooks v. Schwerin, 54 N. Y. 343. 
 
4 DRIVING. 
 
 " That does not matter. 1 I hope no more dam 
 age 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 11 sue you." 
 
 u Let him sue away and be hanged ; he 11 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." 2 
 
 " But then, Eliza Jane, the housemaid, was 
 with him, was thrown out too, and had all the 
 skin taken off her face ; and she says she 11 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 I 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 give a heavy sum against me for the 
 injury done to her by my servant. 3 Well, tis a 
 pretty how-do-ye-do for a New Year s gift. I 11 
 go down and see the wretch." 
 
 Off I went, glad to get out of Elizabeth s sight. 
 
 1 Woolley v. SCOTCH, 3 M. & Ry. 105. 
 
 2 F-aterson v. Wallace, 1 Macq. 751 ; Meara s Admr. v. Holbrook, 20 Ohio 
 St. 137 ; C. & A. R. R. Co. v. Murphy, 53 111. 339. 
 
 s Lord Cramvorth, Bartonshill Coal Co. r. Reid, 3 Macq. 294-307. 
 
DRIVING. 
 
 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 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. 1 -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, 2 where the defendants " in Lincoln 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 inaptitudinis loci, there 
 
 1 Wakeman v. Robinson, 1 Bing. 213 ; Hammack v. White, 11 C. B. (N. S.) 
 588 ; Gibbons v. Pepper, 1 Ld. Raj T m. 38 ; Jackson v. Bellevieu, 30 Wis. 257; 
 Livingston v. Adams, 8 Cow. 175 ; Ficken v. Jones, 28 Cal. 618. 
 
 2 2 Ley. 172 ; 1 Ventr. 295. 
 
6 DRIVING. 
 
 drove them, etc., 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 drawing-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. 
 
 " 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, 
 
DRIVING. 
 
 that surely is only an obiter dictum, not a decis 
 ion 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. 
 
 " It is time that you two horrid creatures left 
 here," said Mrs. L. 
 
 " Well, suppose we start. Mind dear, to tell 
 the man to be sure to meet us, two hours from 
 now, at Mrs. Smith s." 
 
 " Is your life insured against accidents, Mr. 
 Jones ? " asked my wife. " 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 travelling by rail or 
 water, while those arising from horse or carriage 
 injuries exceed in number those from all other 
 causes combined." 
 
 "A pleasant idea wherewith to start for an 
 afternoon s drive," quoth Tom. 
 
 Off we went, followed by the best wishes of my 
 loving and lovely spouse. Scarce had our feet 
 touched the sidewalk when, with the exclama 
 tion, " Get out you rascallion ! " Jones executed a 
 pas seul, and then lay sprawling on the ground ; 
 and the small boy whose sled as it slid swiftly 
 down the board walk my friend had vainly en 
 deavored to avoid glided merrily on. As I 
 
8 DRIVING. 
 
 whisked the snow off, Jones in wrathful accents 
 consigned the juvenile to a place beyond the pos 
 sible limits of frost, and exclaimed : 
 
 " I 11 sue the city for allowing the road to be in 
 such a beastly state. Corporations are bound to 
 keep the street in a proper condition, so that the 
 lives and bones of passers-by will not be endan 
 gered." 
 
 " True," I replied, "but the accident was not 
 wholly caused by the slipperiness of the pave 
 ment ; the unlawful and careless act of the boy in 
 coasting had something to do with your over 
 throw ; and in the exactly similar case of Mrs. 
 Shepherd it was decided that the city was not 
 liable." i 
 
 " I tell you all towns and cities must keep their 
 highways and streets in repair, so that they are 
 without obstructions or structural defects which 
 may endanger the safety of travellers, and are 
 sufficiently level and smooth, and guarded by rail 
 ings when necessary, to enable people, by the ex 
 ercise of ordinary care, to move about with safety 
 and convenience." 2 
 
 " You repeated that sentence very well and 
 with great emphasis. It is quite correct in a 
 general way that highways, streets and sidewalks 
 should at all times be safe and convenient, but 
 
 1 Shepherd et ux. v. Chelsea, 4 Allen, 113 ; Ilutchinson v. Concord, 41 Vt. 
 271 ; Ray v. Manchester, 46 N. II. 59. 
 
 2 Hixon v. Lowell, 13 Gray, 59 ; Barber v. Roxtmry, 11 Allen, 320 ; Hewi- 
 son v. New Haven, 34 Conn. 142. 
 
DRIVING. 3 
 
 then regard must be bad to the locality and in 
 tended uses. 1 Towns are liable only for injuries 
 caused by defects and obstructions for which they 
 might be indicted. 2 They do not insure the 
 .safety of all using sidewalks in the depths of our 
 northern" winters ; 3 and it has been expressly de 
 cided that the mere existence of a little ice on the 
 walk is no evidence of actionable negligence : * 
 the slipperiness of the ice, if the walk is properly 
 constructed and free from accumulations of snow, 
 will not give those who fall a right to sue a city 
 with success. 6 One must go gingerly and with 
 due care on such occasions." 6 
 
 " All very fine, said Jones, " but when my 
 friend Clapp, in walking along the streets of the 
 city of Providence, at night, fell on some ice and 
 broke his thigh, he recovered damages." 
 
 " Yes, I remember ; but then there was a ridge 
 of ice and snow, hard trodden, in the centre of the 
 sidewalk, which was considered such an obstacle 
 as the city should have removed. 7 And " 
 
 Ere I had completed my sentence the hour of 
 my doom had struck, and I was as white as ever 
 miller was ; an avalanche of snow slid off a roof 
 and thundered down on my devoted head. Jones 
 
 1 City of Providence v. Clapp, 17 How. 168. 
 
 2 Merrill v. Hampden, 26 Me. 234. 
 
 s Eingland v. Toronto, 23 C. P. Out. 93. 
 
 * Ibid. 
 
 6 Stanton v. Springfield, 12 Allen, 566 ; Hutchins v. Boston, Ib. 571 n. 
 
 6 Wilson v. Charlestown, 8 Allen, 137. 
 
 i City of Providence v. Clapp, 17 How. 168 ; Church, v. Cherryfield, 33 Me 
 
10 DRIVING. 
 
 with a smirk asked me if I was going to sue for 
 damages. Sadly, as I twisted my head slowly 
 round and nodded first to right and then to left, 
 to see if the vertebrae were all in workino- order, 
 
 O 7 
 
 I replied : 
 
 " Ah, no ! I cannot do so with success. 1 It s a 
 case of damnum absque injuria" 
 
 " Ho ! ho ! " laughed my companion ; " strong 
 language ; but no wonder." 
 
 " If the owner of the house had left the ice and 
 snow there for an unusual and unreasonable time 
 after he knew of its presence and might have re 
 moved it, he probably would have been liable to 
 me, 2 or, if that old awning had fallen on me, 3 or if 
 that lamp hanging over the Sol s Arms door had 
 lighted on my crown, producing an extra bump, 
 for the edification of Fowler and Wells and the 
 savants of that ilk, I might have got something 
 in the first case out of the city ; in the other from 
 the landlord. 4 Or if one of those barrels had 
 rolled out of that warehouse, and, thumping against 
 your legs, had brought you down, you might have 
 sued the merchant." 5 
 
 " Look at that poor old woman ; she will come 
 to grief most assuredly." 
 
 Before us toddled an aged granny, assisting her 
 
 1 Hixon v. Lowell, 13 Gray, 59. 
 
 2 Shipley v. Fifty Associates, 101 Mass. 251 ; S. C. 106 Mass. 194. 
 
 3 Drake v. Lowell, 13 Met. 292. 
 
 Tarry v. Ashton, L. R.,1 Q. B. D. 314. 
 
 s Byrne r. Boadle, 2 II. & C. 722 ; Randleson v. Murray, 8 Ad. & E. 109. 
 
DRIVING. 11 
 
 septuagenarian extremities with an antique look 
 ing umbrella, of no color known to this life. It 
 was of a " flabby habit of waist, and seemed to be 
 in need of stays, looking as if it had served the 
 old dame for long years as a cupboard at home, as 
 a carpet-bag abroad." 
 
 " So feeble a person should not be out in such 
 slippery weather unattended ; 1 people should exer 
 cise common prudence. One who has poor sight 
 should take greater care in walking the streets 
 than one in full enjoyment of her faculties." 2 
 
 " I fancy the least obstacle or hole would upset 
 her," said Tom. 
 
 "And if she did stumble over a small impedi 
 ment she could not sue the city for damages. So 
 the court held where a man fell over the hinge of 
 a trap-door projecting a couple of inches above 
 the sidewalk in a village. 3 But the degree of re 
 pair in which the walks must be kept depends con 
 siderably upon the locality ; one may reasonably 
 expect better pavements in a city than in a village ; 
 and so in Boston where an iron box four inches 
 square, set in a sidewalk by a gas company, had 
 a rim projecting an inch above the level, the city 
 was held responsible for injuries caused by it." 4 
 
 " If she did meet with an accident and was held 
 entitled to damage, what would she get in hard 
 cash? " asked Jones. 
 
 1 Davenport v. Ruckman, 37 N. Y. 568. 
 
 a Winn v. Lowell, 1 Allen, 180. 
 
 3 Ray v. Petrolia, 24 C. P. Ont. 73. 
 
 * Loan v. Boston, 106 Mass. 450 ; Bacon v. Boston, 3 Gush. 174. 
 
12 DRIVING. 
 
 " Tis impossible to say. It would depend upon 
 so many things. In one case where an old man 
 of seventy, who was very feeble, fell at night into 
 an opening for a drain in the sidewalk, which was 
 covered with boards laid at right angles with the 
 others and projecting some two inches, over which 
 he stumbled, the jury gave $4,000 damages ; but 
 the court held that excessive, as the old man was 
 insolvent and incapable of much labor." l 
 
 " That was a large sum for injuries." 
 
 " But the old fellow died. We go in here," I 
 added. 
 
 "You may, I will not," replied Jones, as he 
 leant against the railing of a bridge over a little 
 stream. 
 
 " Well, do not stand there ; if the board gives 
 way and lets you down, you will have no remedy 
 against the city ; for it is not bound to keep up 
 railings strong enough for idlers to lounge against, 
 or children to play upon. 2 Look out, there is 
 another sled ! " As I rang the door-bell I heard 
 Jones mutter : 
 
 u Those boys ought to be indicted for obstruct 
 ing the sidewalk in such a way." 
 
 " True for you," I mentally ejaculated, " I re 
 member that one of those bewitched and besad- 
 dled wheelbarrow concerns, yclept velocipedes, was 
 held to be an indictable obstruction." 3 
 
 1 Hutton v. Windsor, 34 Q. B. Ont. 487. 
 
 2 Stickney v. Salem, 3 Allen, 374 ; Gregory v. Adams, 14 Gray, 242. 
 
 3 Reg. v. PJummer, 30 Q. B. Ont. 41. 
 
DRIVING. 13 
 
 In due time my servant met us with the sleigh, 
 and off we went, bells jingling, horse prancing, 
 dog barking, all joyous with the exhilarating in 
 fluences of frost and 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 very much accustomed to 
 driving." 
 
 " Never mind that. The law is clear ; as you 
 are merely a passenger in my sleigh, you are not 
 responsible for any misconduct of which I may be 
 guilty while driving ; you have nothing to do 
 with the concern. 1 Even if I had only borrowed 
 the turn-out, and kindly let you take the ribbons, 
 I still would be the party responsible for negli 
 gence." 2 
 
 " That s satisfactory," returned my friend. 
 " But would it not be different if we had both 
 hired the horse and cutter ? " 
 
 " Quite correct, Mr. T. J. ; your store of legal 
 lore is rapidly accumulating. 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, 3 and if we had 
 hired the horses to draw my sleigh, and had like 
 wise obtained the services of a driver, then we 
 
 1 Davey v. Chamberlain, 4 Esp. 229. 
 
 2 Wheatley v. Patrick, 2 M. & W. 650. 
 s Davey v. Chamberlain, 4 Esp. 229. 
 
DRIVING. 
 
 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 11 only 
 have to keep my eye a little wider open to avoid 
 collisions ; 2 besides, there is plenty of room for any 
 person to pass, so he would have only himself to 
 blame in case of accidents." 3 
 
 " 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 ; 4 
 so you can look about you and see." 
 
 "But suppose some fiery steed was to run into 
 yours?" urged Thomas, "or you upset in the 
 ditch ? " 
 
 " My being on the wrong side would not pre 
 vent my recovering against a negligent driver, as 
 long as there is room for him to pass without in 
 convenience. 5 Nor would it interfere with my 
 getting damages from the city for injuries caused 
 by their defective roads. 6 Whoa, old fellow ! " I 
 cried, just as I was on the point of running over 
 a philosopher who was walking slowly over a 
 
 Laugher r. Pointer, 5 B. & C. 547 ; Quarman v. Burnett, 6 M. & W. 499. 
 Pluckwell v. Wilson, 5 C. & P. 375. 
 Chaplin v. Ilawes, 3 C. & P. 554. 
 Wordsworth v. Willan, 5 Esp. 273. 
 Clay v. Wood, 5 Esp. 44. 
 
 Baker v. Portland, 10 Am. Law Reg. (N. S.), 559, 58 Me. 199 ; Gale v. Lis 
 bon, 52 N. II. 174. 
 
DllIVING. 15 
 
 crossing gazing up at the azure vault of heaven. 
 " What a stupid donkey ; it is as much his busi 
 ness to be watchful and cautious that he does not 
 get under my sleigh, as it is mine that my sleigh 
 does not get over him ! * It is gross carelessness 
 for one to attempt to cross a street when he sees 
 a horse and vehicle coming rapidly along ; and if 
 that fellow had been injured, he could have got 
 nothing out of me. 2 A man who* does not use all 
 his senses when crossing a highway is guilty of 
 contributory negligence, and so loses all right of 
 action." 3 
 
 " Yes," said T. J. " Still a foot passenger has 
 a clear right to cross a road, and persons driving 
 must avoid running him down ; it will be no valid 
 excuse that one could not pull up his nag for fear 
 of the reins breaking, for he should have good 
 harness. 4 But we may pass a pedestrian prome 
 nading on the road on whichever side is most con 
 venient, for the rules of the road do not apply to 
 walkers ; 5 they have no prior right of way." 6 
 
 " No ; men walking and driving have equal 
 rights on the streets ; all must exercise care and 
 prudence ; 7 and a pedestrian should not indulge 
 in nice calculations of chances, and run the gaunt 
 let of carriages in crossing a road." 8 
 
 Williams v. Richards, 30. & K. 81. 
 Woolf r. Beard, 8 Car. & P. 373. 
 
 Gray v. Second Avenue E. R. Co., 34 N. Y. Sup. Ct. (2 Jones & Spencer), 
 ol9. 
 
 Cotterill r. Starkey, 8 C. & P. 691. 
 
 Cotterill v. Starkey, supra; Lloyd v. Ogleby, 5 C. B. (N. S.), 667. 
 
 Bclton v. Baxter, 14 Abb. (N. Y.) Pr. (N. S.) 404. 
 
 Brooks v. Schwerin, 54 N. Y. 343. 8 Bc lton i: Baxter, supra 
 
16 DRIVING. 
 
 " I was out driving last Sunday " Jones 
 began. 
 
 " Oh, you naughty man ! " I cried. " Have 
 you no respect for the Sabbath day ? or perhaps 
 you wanted to have a ride without giving a quid 
 pro quo ? " 
 
 " How could I do that ?" queried my friend. 
 
 "Don t you know," replied I, / that a man 
 cannot recover for the hire of a horse and buggy, 
 let on Sunday for a pleasure drive ? 1 But if the 
 livery man imagined that the errand on which you 
 were bound was one of necessity or charity, he 
 would not be punishable for a breach of the Sun 
 day laws." 2 
 
 u Well, but my drive was a work of charity 
 (according to its original meaning), if not of ne 
 cessity. I was going to see Miss Blank." 
 
 u That very point was raised sometime since 
 in Massachusetts, where travelling on the Lord s 
 Day is forbidden. A young man, who had to 
 work all the week, was going to visit his be 
 trothed on Sunday, when he came to grief through 
 a defect in the highway. The question whether 
 this might not have been a work of necessity or 
 charity, was raised, but unfortunately, the matter 
 was not decided. 3 In one case, however, it was 
 held that a man might lawfully hire a horse and 
 carriage to go and visit his paternal progenitor, 
 
 i Berrill v. Smith, 2 Miles, 402. 
 
 * Myers v. The State, 1 Conn. 602. 
 
 8 Bufflnton v. Swansey, 2 Am. Law Rev. 235. 
 
DRIVING. 17 
 
 who resided in the country. 1 In some of the 
 States, where the laws for the observance of the 
 Sabbath are rigorous, and travelling on that day 
 is forbidden, young swells hire horses and race 
 them, knowing that they will not have to pay for 
 any injuries done to the old nags ; 2 not even if 
 they die from the Jehu-like driving. 3 But, come, 
 let us hear more about Miss Blank, Joney, my 
 boy." 
 
 " I presume," said Jones, "that one hurt while 
 travelling would have to show that the journey 
 was from necessity or charity ? Would one have 
 to stay in the house all day ? " 
 
 44 Oh, no ; even in Puritanic Boston it has been 
 decided that walking half a mile or so in the 
 streets on a Sunday evening, without any inten 
 tion of going anywhere save home again, is not 
 travelling within the meaning of the act. 4 And 
 of course one may .go to church or to his place of 
 worship, no matter what may be the style of the 
 ceremony. Once Mrs. Feital, a Spiritualist, went 
 to a camp-meeting where Miss Ellis was put in a 
 box with her hands tied : music was heard coming 
 from the box, and when it was open Miss Ellis 
 was found with her hands untied, and a ring that 
 had*been on her finger was then on the end of her 
 nose. On her way home from these amusing, if 
 
 1 Logan v. Mathews, 6 Penn. St. 417. 
 
 2 Gregg v. Wyman, 4 Gush. 322 ; but see Hall v. Corcoran, 107 Mass. 251. 
 
 3 Morton v. Gloster, 4ft Me. 520. 
 
 * Hamilton v. Boston, 14 Allen, 475. 
 W. &R. OFT. 2 
 
18 DRIVING. 
 
 not instructive services, Mrs. Feital broke her 
 leg on the cars. The railway company, tried to 
 prove that this was not divine service, but the 
 jury gave a verdict of 15,000 damages, and the 
 court refused to interfere. 1 On the other hand, 
 a poor sinner who was injured on a horse car 
 while going to visit a friend, was held to have 
 violated the sanctity of the Sabbath and broken 
 the law of the land, and so was precluded from 
 recovering damages." 2 
 
 "But is not the rule in Massachusetts excep 
 tional ? " queried my companion. 
 
 " In Vermont and Maine, as well as in Massa 
 chusetts, it has been held that if one is driving or 
 travelling on Sunday, without excuse, he cannot 
 maintain an action against the municipality for 
 any damage he may suffer through defects in the 
 highway, on the ground that the town is not 
 legally liable to furnish a man with a safe high 
 way at a time when he is by law forbidden to 
 travel on it. 3 Some of the decisions in these 
 States depend upon the peculiar legislation and 
 custom of the State, more than on any principle 
 of justice or law; 4 and they cannot be sustained 
 consistently with the broad principles of the law 
 
 1 Feital v. Middlesex R. R. Co., 109 Mass. 398. 
 
 2 Stanton v. Metropolitan Rvv., 2 Am. Law Rev. 234. 
 
 3 Johnson v. Warburgh,14 Am. Law Reg. 647 ; Jones v. Andover, 10 Allen, 
 18; Bosworth v. Swansey, 10 Met. 363; Hinckley v. Penobscot, 42 Me. 89; 
 Bryant v. Biddcford, 59 Me. 193. 
 
 * Per drier, J. Phil., etc., R. R. Co. v. Phil., etc., Towboat Co., 23 How 
 209. 
 
DRIVING. 19 
 
 of negligence laid down by the courts generally. 1 
 The fact that one was doing an unlawful act when 
 injured will not prevent a recovery, unless the act 
 was such as would naturally tend to produce the 
 injury. 2 If one breaks the law, the law itself, 
 and not a carrier or town, should inflict the pen 
 alty. In other States, New Hampshire, New 
 York, Pennsylvania, Wisconsin, for example, one 
 can sue for damages though injured while travel 
 ling on Sunday. 3 And in England Sunday trav 
 ellers are especially favored by the legislature, for 
 to none others can the publican dispose of beer, 
 wine or spirits on that day. 4 But come, what 
 about Miss Blank ? " 
 
 " By the way," said Jones, " have you seen 
 that anecdote told by Erskine about Lord Ken- 
 yon, and which has recently been brought to 
 light?" 
 
 " No. Has it anything to do with driving ? " 
 I Everything. Kenyon was trying a case at the 
 Guildhall and seemed disposed to leave it to the 
 jury to say whether the plaintiff might not have 
 saved himself from being run into by the defend 
 ant by going on to the wrong side of the road, 
 where according to the witnesses was ample 
 room ; so Lord Erskine in addressing the jury 
 
 1 Wharton on Negligence, 405. 
 
 2 Wharton on Negligence, 331, and cases cited. 
 
 3 Sutton v. Wauvvantosa, 29 Wis. 21 ; Button v. Weare, 17 N. II 34 Moh 
 ney v. Cook, 26 Pa. St. 342 ; Etchberry v. Levielle, 2 Hilton (N. Y ) 40 
 
 4 Byles, J. Taylor v. Humphreys, 10 C B. (N. S.), 429. 
 
20 DRIVING. 
 
 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: but I pray Grod that I may never meet 
 him on the road ! Lord Kenyon laughed, and so 
 did the jury, and in summing up the judge told 
 them that he believed it to be the best course 
 stare super antiquas vias." 
 
 " Not so bad ! " 
 
 On and on we drove ; the very air seemed alive 
 with the tintinnabulation that so musically wells 
 from the jingling and the tinkling of the bells in 
 the icy air of winter. 
 
A SLEIGH DRIVE. 21 
 
 CHAPTER II. 
 
 A SLEIGH DEIVE. 
 
 Fast Driving. Teams passing. Clearing Snow. Impassable Roads. 
 Stuck in a Snow-drift. Upset. Demolishing Juveniles. Mind 
 your Children. In the Ditch. Damages for Bad Roads. Unsafe 
 Bridges. Horses shying. Whisking Tails. Runaways. 
 
 ALL the morning 
 
 " Out of the bosom of the air, 
 
 Out of the cloud-folds of her garments shaken, 
 Over the woodlands brown and bare, 
 Over the harvest fields forsaken, 
 Silent, and soft, and slow, 
 Descended the snow," 
 
 But when the sun turned downwards towards his 
 couch, he shone out clear and bright, making every 
 snow-flake glisten and sparkle in the bracing air ; 
 so Mrs. L. determined to utilize the splendid 
 weather, and pay a round of country visits. Of 
 course I had to drive her. 
 
 The steeds needed no whip to urge them on. 
 Swiftly we glided down the street, and over the 
 bridge we trotted fast without drawing rein. The 
 boards creaked and cracked, as when one strives 
 to creep upstairs, unheard, at midnight. My wife 
 said in surprise : 
 
 " Eldon, did you not observe the notice threat- 
 
22 A SLEIGH DRIVE. 
 
 ening prosecution according to the utmost rigor 
 of the law to all crossing the bridge quicker than 
 at a walk ? Why do lawyers break the law ? " 
 
 " All right, my dear ; if the bridge had broken 
 down while we were trotting over it, I could not 
 have sued the owners for damages. 1 But as we 
 are over it, we need not discuss the subject." 
 
 " But," urged my wife, " it is not right to drive 
 so fast." 
 
 " No ; I know it. In fact it is an indictable 
 offense to drive through crowded streets like these 
 so as to endanger the safety of others." 2 
 
 " How fast may one go ? " 
 
 " That is difficult to say. Depends on circum 
 stances. A mile in four minutes is too fast ; 3 and 
 if you go a mile in three minutes and ten seconds 
 you become liable for all consequences. 4 Even 
 where a man was driving at only a smartish pace 
 and ran over a donkey he had to pay for it. 5 But 
 one may drive rapidly on an open country road 
 where the chance of collision is slight." 
 
 " Look out, Eldon ! " cried my gentle spouse. 
 44 See, a load of wood has just upset there ! What 
 a nuisance ! " 
 
 44 Not legally so, as the man went over accident- 
 ally." 6 
 
 Abbott v. Wolcott, 38 Vt. 666. 
 
 U. S. v. Hart, Peters C. C. 390. 
 
 Kennedy v. Way, 3 Law Reporter (N. S.), 184, Brightley (Pa.), 186. 
 
 Moody v. Osgood, 60 Barb. 644. 
 
 Davies v. Mann, 10 M, & W. 545. 
 
 Angell on Highways, 263. 
 
A SLEIGH DRIVE. 23 
 
 As we drove past we heard the woodman com 
 plaining bitterly that a sleigh that had just met 
 him had not turned out enough, and hence his 
 mishap. 
 
 " Too bad," I said ; " people ought to show an 
 accommodating spirit and cautious watchfulness 
 in avoiding difficulties when the roads are so 
 badly blocked with snow." 1 
 
 " But," said my wife, who seemed to have an 
 idea in her head, there was an abundance of 
 room for it, of qualifying herself to carry on my 
 business if some unforeseen event should chance 
 to carry me oft before I had realized some little in 
 dependence. " But, I thought the towns, or cor 
 porations, were bound to keep their roads safe and 
 convenient. I am sure that this one is neither 
 safe nor convenient when we have to pass any 
 one." 
 
 " Your supposition is correct. The rule applies 
 as well to a turnpike company as to a town, 2 and 
 to defects and obstructions caused by drifts of 
 snow. 3 Accumulations of snow and ice must be 
 removed so that streets and highways may be 
 passable. 4 Of course it is plain, as a Canadian 
 judge once remarked, that the owner of a road 
 cannot be expected to clear the snow off the 
 ground whenever it falls, or even to remove the 
 
 1 Hull v. Richmond, 2 Wood. & M. 343. 
 
 2 Mathews v. Winooski Turnpike Co., 24 Vt. 480. 
 
 3 Loker v Brookline, 13 Pick. 346 ; Holman v. Townsend, 13 Met. 297. 
 
 4 City of Providence v. Clapp, 17 How. 168. 
 
24 A SLEIGH DRIVE. 
 
 ice which may form there. It would frequently 
 be an impossible work to attempt it, and it would 
 often be mischievous and. a nuisance to effect it. 
 Snow forms the best and most suitable means of 
 travel in winter, and even when it falls to a great 
 and unusual depth, it is not the duty of any one, 
 as a rule, to remove it from the road. Nor can 
 any one be required to remove mud and mire from 
 a road. There are, however, cases when snow, ice, 
 and mud may and must be removed, and that is 
 when they cause an obstruction or danger which 
 can properly and reasonably be removed. 1 
 
 " If the corporation neglects its duty, what 
 must an unfortunate traveller do ? " 
 
 " If the highway is impassable for any reason, 
 he certainly should not try to force a passage, for 
 he would not be able to recover for his loss of 
 time, or his trouble and expense in extricating his 
 team from a snow-drift. 2 But he may go upon the 
 adjoining land, 3 as we are going to do now." 
 
 " That is rather hard upon the poor farmers," 
 said my wife. " Why, we may be driving over a 
 field of fall wheat ! " 
 
 " That makes no difference ; one ought, how 
 ever, to keep as near the road as possible." 4 
 
 " It takes much longer going by this circuitous 
 
 i Wilson, J. Caswell v. St. Mary s, etc., Road Co., 28 Q. B. (Ont.), 247. 
 
 - Brailey v. Southborough, 6 Gush. ]41 ; Willard v. Cambridge, 3 Allen, 
 574. In Massachusetts one cannot recover damages for not being able to use 
 the road, though he may for injuries received while using it. 
 
 3 Woolrych on Ways (2d ed.), 78 ; Campbell v. Race, 7 Gush. 408. 
 
 Taylor v. Whitehead, 2 Dougl. 749 ; Carrick v. Johnston, 26 Q. B. (Ont.), 
 66. 
 
A SLEIGH DRIVE. 25 
 
 route," said Mrs. Lawyer, with a woman s im 
 patience. 
 
 " Still, unfortunately, we cannot get compensa 
 tion from the town for the delay, even though we 
 had to neglect important business in consequence. 1 
 But if, in addition to being made to neglect busi 
 ness, one, after commencing his journey, is obliged 
 to turn back and go by a very roundabout way, 
 there is some authority to show that he may get 
 damages." 2 
 
 For some minutes we had been winding in and 
 out among lofty pines and evergreens with boughs 
 weighed down by the snow upon them, which was 
 now succumbing to the warm rays of the sun. 
 Something caused my horses to shy suddenly, and 
 over we went, cutter, wife, buffaloes, self, and all. 
 Fortunately our steeds did not run off. At first, 
 when I saw my spouse lying extended on the 
 ground, I was alarmed, but she quickly reassured 
 me by exclaiming : 
 
 " Pleasant it is, when woods are green, 
 
 And winds are soft and low, 
 To lie amid some sylvan scene, 
 Where, the long drooping boughs between, 
 Shadows dark and sunlight sheen, 
 Alternate come and go. 
 
 " Beneath some patriarchal tree 
 
 I lie upon the snaw. 
 His hoary arm uplifted he, 
 And all the white leaves over me 
 Dripping their little drops in glee, 
 In one continuous thaw." 
 
 1 Hubert v. Groves, 1 Esp. 148 ; Griffin v. Sanbornton, 44 N. II. 246. 
 
 2 Greasley v. Codling, 2 Bing. 263. 
 
26 A SLEIGH DRIVE. 
 
 " Come, come, get up," I said. " Don t lie there 
 playing the improvisatore and taking your death 
 of cold, for I fear me I could not recover damages, 
 although we had to come in here because the road 
 was impassable, as I knew it was so before I set 
 out, and therefore ought to have gone some other 
 way and not have come into this bush at my peril." 1 
 
 Soon all was again as it had been, and merrily 
 onward we went, now and then calling at a house 
 for a few minutes, and then on and on and on. 
 The day was too gloriously bright to spend much 
 time with our friends talking scandal. We came 
 upon some children engaged in the exhilarating 
 amusement of sliding down hill, and one of them 
 we nearly annihilated. The horses feet were well 
 nigh upon him before we noticed his little red 
 brick-top standing out in bold relief against the 
 pure white snow. 
 
 " Ha ! " I said, with a sigh of relief, " t is 
 well we did not knock the youngster into a cocked 
 hat. It might have taken a good slice off my 
 year s profits if I had. I remember a man who 
 was driving a loaded team down a hill at no snail s 
 pace, when he came upon a little rascal (not four 
 years old) on his way to school, and who to 
 relieve the monotony of the journey was sliding 
 down the hill (near the edge of the road) lying 
 upon his potatoe pouch on his hand-sleigh, . his 
 face turned towards the right, his legs Y-like 
 
 i Tisdale v. Norton, 8 Met. 388. 
 
A SLEIGH DRIVE. 27 
 
 stretching out behind in the opposite direction. 
 At a distance the man had taken the boy for 
 a dog, then as he came nearer he thought the 
 child would get out of the way, and when at 
 length he did himself try to turn out, although 
 there was plenty of room, still the hind runners 
 injured the boy s left leg so much that amputation 
 was necessary. The man had to pay heavy dam 
 ages for the injuries he had inflicted." * 
 
 " It seems hard that one should have to pay 
 for a parent s negligence in allowing such infants 
 to wander about by themselves," said Mrs. L. 
 
 " Occasionally the tables are turned. Mr. Roper 
 was once driving in his sleigh at a gentle trot 
 (there were some of his family with him and 
 strange to say they were not talking), when at 
 the foot of a hill they ran over a baby two years 
 old that was sitting in the snow in the middle of 
 the road all by himself. The jury gave the child 
 a verdict of $500, but the court would not hear 
 of such a thing, considering that the parents had 
 been guilty of criminal negligence in suffering 
 the child to be in such a place." 2 
 
 " I guess that court was composed of old bache 
 lors," exclaimed my wife in indignant accents. 
 
 " Well, my dear, even married judges, and those 
 who have been blessed with quivers full of those 
 sharp things, children, have declared the rule to 
 
 1 Robinson v. Cone, 3 Law Reporter (N. S.), 444; 22 Vt. 213. 
 
 2 Ilartfield v. Roper 21 Wend. 615 ; but see post. 
 
28 A SLEIGH DRIVE. 
 
 be that, if the plaintiff s negligence in any way 
 concurred in causing the damage, he cannot re 
 cover unless he could not, by the exercise of or 
 dinary care, have avoided the injury, or the de 
 fendant has been guilty of gross negligence, or 
 intentionally did the wrong." 1 
 
 A little feminine chit-chat now occupied our 
 attention ; criticism concerning the friends we had 
 been visiting, their foibles and weaknesses ; specu 
 lations as to the incomes of the husbands, the 
 age of the wives, and such like remarks which 
 absorb such a large proportion of the atmospheric 
 air that is converted into language. 
 
 In passing a man, he would not turn out, and 
 I grazed his horses legs, causing the animals to 
 plunge and kick so as to knock the cutter about 
 considerably ; but seeing that the fellow was drunk 
 and not able to drive properly, I was not at all 
 alarmed about any damage I might have done, for 
 I knew that I could not be held responsible. 2 
 
 The sun had gone to rest ; the stars were com 
 ing out one by one, dotting the vault of heaven as 
 with sparkling gems. We heard in the distance the 
 ringing laughter and the tinkling bells of a merry 
 driving part} 7 . My wife exclaimed : 
 
 " Hear the sledges with the bells, 
 
 Silver bells ! 
 What a world of merriment their melody foretells ! 
 
 1 Barnes v. Cole, 21 Wend. 188 ; Bridge v. Grand Junction Rw., 3 M. & W 
 246. 
 
 2 Cassedyr. Stockbridge, 21 Vt. 391. 
 
A SLEIGH DRIVE. 29 
 
 How they tinkle, tinkle, tinkle, 
 
 In the icy air of night ! 
 
 While the stars that oversprinkle 
 
 All the heavens, seem to twinkle 
 
 With a crystalline delight : 
 
 Keeping time, time, time, 
 
 In a sort of Runic rhyme, 
 To the tintinabulation that so musically wells 
 From the bells, bells, bells, bells, 
 
 Bells, bells, bells 
 From the jingling and the tinkling of the bells." 
 
 We were at this time driving down in a ditch for 
 the sake of the snow (the road itself being well- 
 nigh bare), and just as my wife concluded her 
 poetic quotation over we turned. Luckily fortune 
 again favored us, for my deviating from the right 
 path without sufficient cause would have prevented 
 my recovering for any damage we might have suf 
 fered. l One voluntarily encountering perils in the 
 dark does so at his own risk. 2 
 
 My wife impatiently suggested that she had 
 better take the reins. I told her that she could 
 reign at home, but that if she was driving and we 
 really met with an accident, twelve jurymen would 
 have to inquire into her capacity and the horses 
 character, 3 in considering whether ordinary care 
 had been exercised, and the less said on the first 
 subject the better. 
 
 " For goodness sake, then, tell me what I can 
 get if I am hurt on these abominable roads," 
 she pettishly asked. 
 
 1 Rice v. Montpelier, 19 Vt. 470; Tisdale v. Norton, 8 Met. 388, 
 
 2 Mt. Vernon v. Dusouchett, 2 Cart. 586. 
 s Cobb v. Standish, 14 Me. 198. 
 
30 
 
 A SLEIGH DRIVE. 
 
 " Well," I said, clearing my throat for a speech, 
 " if the town is to blame for the state of the road, 
 it is liable for the direct and immediate losses oc 
 casioned by the accident. 1 In some cases / could 
 recover for the loss of your services and the ex 
 penses of your sickness ; 2 although in Maine and 
 Connecticut it has been decided otherwise. 3 If I 
 myself were injured, I could get recouped for my 
 loss of time and medical expenses. 4 Where the 
 exertions of the plaintiff in endeavoring to rescue 
 his horses, which had broken through a bridge, his 
 exposure to the elements and his agitation all 
 the direct result of the defect in the bridge pro 
 duced epilepsy and made the man a wreck in body 
 and mind (the doctors said the disease usually ter 
 minated in paralysis and mental imbecility), the 
 jury gave the man $500 in compensation, and the 
 judges thought it was none too much." 5 
 
 "I should think not. It must be a poor body 
 and mind to be worth no more than that." 
 
 " Where," I continued, " Mrs. Toms and her 
 eight-year old boy were crossing a bridge in their 
 buggy, the horse shied at some new planks on 
 the bridge, backed to the edge and the hind 
 wheels over a bank, Mrs. Toms tumbled out into 
 the water some fourteen feet below, the jury 
 
 * Jenks *. Wilbraham, 11 Gray, 142. 
 
 2 Hunt v. Winfield, 36 Wis. 154 ; Woodman v. Nottingham, 49 N. II. 387. 
 
 3 Reed v. Belfast, 20 Me. 246 ; Chidsey i-. Canton, 17 Conn. 475. 
 
 * Sandford v. Augusta, 32 Me. 536. 
 8 Jaquish v. Ithaca, 36 Wis. 111. 
 
A SLEIGH DRIVE. 31 
 
 considered that she had been driving in a proper 
 manner and that the road ought to have had 
 guards along the embankment. The court agreed 
 with them, and held the township liable to make 
 good her wounds and bruises ; the want of rail 
 ings was deemed the proximate cause of the in 
 jury, and not the horse becoming frightened or 
 unmanageable. 1 A road which passes over a 
 bank or bridge, or along a precipice, should 
 always be properly guarded. 2 It seems that in 
 the States of Vermont and Massachusetts corpo 
 rations will be held liable for injuries (caused by 
 defective ways) which are primarily imputable 
 to pure accident (that is to an unexpected occur 
 rence or event for which no one is responsible), if 
 the accident happened without the fault of the 
 injured one, and is such that common prudence 
 could not have foreseen or guarded against, and if 
 without the defect it would not have occurred. 3 
 Where, for instance, a runaway was crowded 
 against the plaintiff s nag, owing to an obstruction 
 in the road, the town was held liable ; for streets 
 should be so made as to be reasonably safe when 
 such accidents, as may reasonably be expected 
 occasionally to happen in the best regulated 
 places, do occur. 4 And so when a carriage ran 
 away with the people in it by itself and over an 
 
 1 Toms v. Whitby, 36 Q. B. (Ont.) 195 ; S. C., In Appeal, 37 Q. B. 100. 
 
 2 Bliss v. Deerfield, 13 Pick. 102 ; Davis v. Hill, 41 N. II. 329. 
 8 Palmer v. Andover, 2 Cush. 601. 
 
 * Kelsey v. Glover, 15 Vt. 708 ; Swift v. Newbury, 36 Vt. 355. 
 
32 A SLEIGH DRIVE. 
 
 embankment. 1 And all roads ought to be wide 
 enough to allow of the ordinary shyings and 
 frights of horses with safety, for shying is one of 
 the natural habits of the animal, 2 and it must be 
 in such repair that even skittish creatures may be 
 driven without any risk of danger from its condi 
 tion. 3 The road, however, need not afford a per 
 fectly clear track to a runaway horse." 4 
 
 "I wish that horse would stop switching his 
 tail about," remarked my wife. 
 
 " A very sensible desire on your part ; for it 
 has been decided in Massachusetts that the liabil 
 ity of a town for accidents arising from defects in 
 a highway is removed if the defect could have 
 been avoided had not the horse by throwing its 
 tail over the reins freed itself from the driver s 
 control and so knocked the carriage against the 
 obstacles complained of." 5 
 
 "It is a pity that judges have not something 
 better to do than consider the shakings of a 
 horse s tail," said my wife, who seemed to be 
 growing cross. 
 
 " T is a pity that they decided as they did, 
 for one can scarcely believe that the tossing of 
 tails over the reins is one of those extremely un 
 likely and abnormal acts which are considered 
 
 Palmer v. Andorer, 2 Gush. 601. 
 
 Houfe v. Fulton, 29 Wis. 296 ; Stone v. Hubbardston, 100 Mass. 49 ; 
 lley v. Fond du Lac, 31 Wis. 180. 
 Lower Macungie Tp. v . Merkhoffcr, 71 Penn. St. 277. 
 Wharton on Neg. f 105. 
 * Fogg v. Nahant, 98 Mass. 578; S. P., 106 Mass. 278. 
 
A SLEIGH DRIVE. "33 
 
 acts of God, and which ordinary sagacity cannot 
 foresee ; it seems rather an ordinary incident of 
 travel and so a contingency against which the 
 road-maker should provide. 1 However, to con 
 tinue the subject on which I was dilating, al 
 though a traveller is bound to have his carriage 
 and harness in good road-worthy condition, or else 
 bear quietly the pains and penalties, 2 still he 
 need not always see that his carriage is perfect, 
 his team of the most manageable character and in 
 the best training, ere he goes out for a turn. If 
 he uses ordinary care and prudence and an evil 
 befalls him from the state of the road (coupled 
 with some accidental cause), he can recover for 
 his damages. 3 In Maine, however, the judges 
 seem inclined to take a different view and absolve 
 the town from liability where the accident would 
 not have happened but for something going 
 wrong with the horse or carriage ; they say that 
 if they are satisfied that an accident happened 
 from a defect in the road and a defect in the har 
 ness making it unsafe, although the driver knew 
 not of it and thought all was right, the injured 
 one cannot sustain an action against the town. 4 
 Where one Moulton " 
 
 "Do you mean Beecher s quondam friend?" 
 asked my wife. 
 
 1 Wharton, 106. 
 
 2 Welsh v. Lawrence, 2 Chitty, 262 ; Smith v. Smith, 2 Pick. 621. 
 
 3 Hunt v. Pownal, 9 Vt. 411. 
 * Moore v. Abbot, 32 Me. 46. 
 
 W. & R. OF T. a 
 
A SLEIGH DRIVE. 
 
 " Oh, no ; it was before the days of Mrs. Til- 
 ton s notoriety. This Moulton was driving on a 
 bridge, and his horse, seeing another plunge into 
 the water, became unmanageable and threw the 
 wagon into the stream, there being no railing ; 
 the town had not to pay the damages. 1 And 
 where a sleigh-bolt broke, and then the horse 
 bolted and injured itself against a heap of stones 
 in the road, the judges considered that the driver 
 had not exercised due care, and therefore would 
 have to settle the farrier s little bill himself. 2 
 Similarly, where a horse being instigated thereto 
 by some evil spirit, refused to hearken to the reins 
 and so went over an unprotected bank, whereon, 
 perchance, the wild thyme grew, the poor owner 
 of the nag was requested to show that the acci 
 dent would equally have occurred if the horse had 
 not been so uncontrollable, before he could get 
 anything out of the town." 3 
 
 A gentle snore from the partner of my joys and 
 sorrows told me that I was wasting my eloquence 
 and learning on the midnight air, so I forbore, 
 and shortly after we reached our home safe and 
 sound. 
 
 1 Moulton v. Sanford, 51 Me. 127 ; Horton v. Taunton, 97 Mass. 266, n. 
 
 2 Davis v. Dudley, 4 Allen, 557. 
 
 3 Titus v. Northbridge, 97 Mass. 25S. 
 
INSURANCE. 35 
 
 CHAPTER III. 
 
 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 Private Conveyance. Carelessness. 
 
 SHORTLY after the events related in my last 
 chapter, I expected business to call me away from 
 home. Accidents by rail explosions, collisions, 
 over-turnings, exploits of the fire-fiend had be 
 come 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 sure 
 and take a bond of fate in the shape of an " acci 
 dent ticket ; " not that hope told a flattering tale, 
 or that vain expectations of making anything by 
 the transaction filled my soul, but as a preventive 
 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 de 
 termined to find out what an accident, within the 
 meaning of the ticket, really might be ; but I dis 
 covered that no satisfactory definition of the word 
 
36 
 
 INSURANCE; 
 
 had ever been given by the courts. Cockburn, 
 C. J., says that it means some violence, casualty, 
 or vis major ; 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, raaino- 
 
 J- O 7 O ^ 
 
 ocean. 1 This 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 Samari 
 tan 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 affected by the event. 2 In 
 Maryland it has been denned as an unusual and 
 unexpected result attending the performance of a 
 usual and necessary act ; and there it has been 
 decided that every injury caused by accident, save 
 
 1 Sinclair v. Maritime Pass. Ass. Co., 3 El. & E. 478. 
 
 * Bipley v. Rw. Pass. Asa. Co., 2 Bigelow, Ins. Cases, 738. 
 
INSURANCE. 37 
 
 those specially excepted by the policy, are covered 
 by it. 1 And in New York an accident is said to 
 be something which takes place without any in 
 telligent or apparent cause, without design and 
 out of course. 2 
 
 I was pleased to find that I might recover for a 
 " railway accident," 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 injure myself, not through any negligence of 
 my own, but because the steps were slippery; 3 and 
 that any money to which I might become entitled 
 under the policy would not in any way lessen the 
 damages which I might claim against the carrier 
 for any injuries received to my corpus. 4 This is 
 only fair, as one pays premiums to insure himself 
 on the understanding that his right to be compen 
 sated when he is injured is an equivalent for the 
 premium paid. It is a quid pro quo ; larger if he 
 gets it, on the chance that he may never get it at 
 all. 5 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, occupation, or pursuits," I would 
 be entitled to pay if so disabled that I could not 
 
 1 Prov. Life Ins. & Inv. Co. v. Martin, 32 Maryland, 310. 
 
 2 Mallory v. Travellers Ins. Co., 47 N. Y. 52. 
 
 3 Theobald v. llw. Pass. Ass. Co., 10 Ex. 45. 
 
 * Bradburn v. Gt. W. R., L. II., 10 Ex. 3, 11 Eng. Rep. 330. 
 e Dolby f. Indian & L. Life Ass. Co., 15 C. B. 365. 
 
00 INSURANCE. 
 
 get to my office to work, although I were well 
 enough to transact business in my own bedroom, 
 or clad in a role de nuit instead of a professional 
 toga. 1 For total disability from the prosecution of 
 one s usual employment means inability to follow 
 one s usual occupation, business, or pursuits in the 
 usual way : 2 i. e., e. g., a farmer who can do noth 
 ing but milk, and a merchant who can only keep 
 his books, are totally disabled within the meaning 
 of such a provision as the above. 3 To be wholly 
 or quite disabled is to be unable to do what one is 
 called upon to do in the ordinary course of busi 
 ness, and this is by no means the same thing as 
 being " unable to do any part of one s business." 4 
 
 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 injury sustained 
 estimated at a proportionate sum. 5 
 
 I also, as a result of my researches, learned the 
 following : If a policy provided that the company 
 would be responsible for accidents operating from 
 external causes, I would get something if I injured 
 
 1 Hooper v. Accidental Death Ass. Co., 5 H. & N. 546; affirmed on ap 
 peal, 5 II. & N. 557. 
 
 2 May on Insurance, p. 644. 
 
 s Sawyer v. United States Casualty Co., 8 Law Reg. (N. S.), 233. 
 
 * Per Wilde, B., Hooper v. Accidental Death Ins. Co., 5 II. & N. 546. 
 
 Theobald v. Rw. Travellers Ins. Co., 10 Ex. 45. 
 
INSURANCE. 
 
 39 
 
 my spinal marrow by lifting my trunk ; l but it 
 would appear that rupture caused by jumping 
 from the cars while in motion and afterwards run 
 ning to accomplish certain business, done volun 
 tarily and in the ordinary way, and without any 
 necessity therefor, and with no unforeseen or in 
 voluntary movement of the body, such as stum 
 bling, or slipping, or falling, is not caused by 
 violent or accidental means. Though it might be 
 otherwise if in jumping I should lose my balance 
 and fall, or strike some unseen object, or in run 
 ning should stumble or slip. 2 If, while on my 
 travels, I should take to amateur farming (not the 
 most likely thing in the world, bucolic desires not 
 filling my soul, and the thermometer being down 
 below nothing), and while pitching hay let the 
 handle of the pitchfork slip and pitch into my 
 bowels, producing thereby peritoneal inflamma 
 tion, whereof I should die, that would be an acci 
 dental death ! 3 Nor would the casual change of 
 occupation from the pursuits of the forum to that 
 of the field, forfeit my right to recover. 4 Where 
 an accident produced hernia, which caused death, 
 it was held that the death was not within the ex 
 ception of the policy which provided that the com 
 pany did not insure against death or disability 
 
 1 Martin v. Travellers Ins. Co., 1 F. & F. 505. 
 
 2 Southard v. Rw. Pass. Ass. Co., 34 Conn. 574. 
 
 s N. Am. L. & A. Ins. Co. v. Burroughs, 69 Penn. St. 43. 
 
 * Admins, of Stone . U. S. Casualty Co., 34 N. J. 371 ; N. Am. L. & A. 
 Ins. Co. v. Burroughs, supra; Provident Life Ins. Co. v. Fennel, 49 111. 180 ; 
 Prov. Life Ins. & Inv. Co. v. Martin, 32 Md. 310. 
 
40 INSURANCE. 
 
 arising from rheumatism, gout, hernia, etc. 1 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 acci 
 dent. 2 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," ap 
 plies only to non-fatal injuries. 3 
 
 I found also, that it was legally correct how 
 ever paradoxical it may appear to say that I was 
 travelling in a carriage, when in fact I was actuallv 
 alighting therefrom ; 4 and that I would be " trav 
 elling in a carriage provided for the transportation 
 of passengers," 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 
 advantageous to the insured, 5 will not allow " trav 
 elling in a public conveyance " to be construed 
 literally, and if tin accident happens while one is 
 
 1 Fitton v Ace. Death Ins. Co., 17 C. B. (N. S.), 122 ; but sec Smith v. Ace. 
 Ins. Co., L. II., 5 Ex. 302, a case of erysipelas. 
 
 2 Trew v. Hallway Pass. Ass. Co., 5 H. & N. 211, affirmed on appeal, 6 
 II. & N. 839. 
 
 8 Mallory v. Traveller * Ins. Co., Ct. of Appeals, 47 N. Y. 52. 
 
 4 Theobald v. R\v. Pass. Ass. Co., 10 Ex. 44. 
 
 5 Hooper v. Accid. Death Ins. Co., 5 II. & N. 545 ; 6 Ib. 839 ; Smith v. Ace. 
 Iiis. Co., per Kelly, C. B., supra. 
 
INSURANCE. 41 
 
 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 conveyance. 1 Mr. John 
 Wilder May (who has written a large book on 
 Insurance) thinks that, perhaps, in a reasonable 
 and substantially 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; 2 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 
 walking. 3 An elephant may be a traveller. 4 
 
 A poor fellow away down in Kentucky inadver 
 tently and needlessly 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. 5 But as this case stands alone, it will 
 
 1 Tooley v. R\v. Pass. Ace. Ins. Co., 2 Ins. L. J. 275. 
 
 2 May on Insurance, p. 661 
 
 3 Ripley r. Ins. Co., 16 Wall. (U. S.), 336. 
 
 4 Gregory v. Adams, 14 Gray, 242. 
 
 s Morel v Mississippi Valley Life Ins. Co., 4 Bush (Ky.), 535. 
 
42 INSURANCE. 
 
 scarcely answer to point a moral or adorn a tale, 
 and the better opinion seems to be that contribu 
 tory 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. 1 But one must not be guilty of willful 
 and wanton exposure of himself to unnecessary 
 danger ; for instance he must not ride on the en 
 gine, 2 or attempt to cross the track when an ap- 
 approaching train is within fifty feet. 3 
 
 I was now assured that to be insured was sure 
 to bring contentment, if not riches. 
 
 1 Prov. Life Ins. & Inv. Co. v. Martin, 32 Md. 310 ; Trcw v. Rw. Pas^. Ass. 
 Co., 6 II. & N. 839 ; Schneider r. Provident Life Ins. Co., 24 Wis. 28 ; Cham- 
 plin v. Rw. Pass. Ass. Co., 6 Lansing (N. Y.), 71. 
 
 2 Brown . Rw. Pass Ass. Co., 45 Mo. 221 ; May, p. 657. 
 
 3 May on Insurance, p. 667. 
 
EVERYTHING MUST BE SOUND, ETC. 43 
 
 CHAPTER IV. 
 
 EVERYTHING MUST BE SOUND, AND EVERY ONE 
 CAREFUL. 
 
 The Reason why. Literature of Stages. Off on Wheels. Sound 
 ness warranted. Seats taken. Fare paid, either First or Last. 
 Damage to Trunks. Involuntary Aeronautics. Passengers in 
 jured. Negligence of Passengers, or of Drivers. Carriers liable 
 for Smallest Fault; Not Insurers. Genuine Accidents. Horses 
 left standing. Driving and upsetting a Friend. Non-repair of 
 Roads. Care required. Tennysonian Stanzas. Pleasures of the 
 Weed and Rural Life. 
 
 THE long vacation was rapidly approaching, 
 that season when the heat having lengthened out 
 the days (as it does everything else), the members 
 of the legal profession abandon rejoinders and de 
 murrers, cast briefs and records, with physic, to 
 the dogs, and, satisfied with bills and conveyances, 
 wander off in search of change in cooling streams 
 and pastures green. In my modest household was 
 eagerly discussed the question, " Whither shall we 
 flee ? " 
 
 My wife s step-mother s brother s wife s moth 
 er s aunt, had recently met with a horrible and 
 excruciating death upon a railway car, so my wife 
 had solemnly vowed never again to commit herself 
 to the safe-keeping of a railway company ; this, 
 
44 EVERYTHING MUST BE SOUND, 
 
 therefore, shut us off from the usual means of exit 
 from our inland city, and yet as " Exeunt omnes" 
 was the cry, we could not surely stay at home ; if 
 we did, we would have to lie low in the kitchen 
 and back premises, that we might appear to others 
 to be away. At last I found that there was still 
 a tumble-down old stage-coach making, with the 
 assistance of two skeleton horses, tri-weekly trips 
 to and from the little Village of Ayr, where we 
 could catch a steamboat and thus do in proper 
 style the Lakes and the St. Lawrence, the Ottawa 
 and the far-famed Saguenay. 
 
 When this discovery of mine was divulged at 
 home, great was the rejoicing, loud paeans rose, 
 and for days I was deluged with quotations from 
 all the novelists, from old Fielding to poor Dick- 
 ens anent stages, and coaches, and stage-coaches. 
 I was told of all the heroes of romance, from Tom 
 Brown back to Tom Jones, who had journeyed 
 thereby ; I was confidently informed, on the au 
 thority of Mr. William Makepeace Thackeray, 
 .that in every coach there is sure to be found an 
 asthmatic old gentleman, a fat man, swelling pre- 
 ternaturally with great coats and snoring inde 
 cently, and a lone widow who insists upon all the 
 windows being shut, and fills the vehicle with the 
 fumes of rum which she sucks perpetually from 
 a black bottle. Mr. Thomas Hughes was quoted 
 to prove how much more punctual stages are than 
 railway trains, for he tells of one that went u ten 
 
AND EVERY ONE CAREFUL. 
 
 miles an hour, including stoppages, and so punc 
 tual that all the road set their watches by her. 
 The old joke concerning the young man who, on 
 being asked if he had ever been through Euclid, 
 replied, Yes, I have driven through it on a 
 stage-coach," was given to me once again as if 
 uttered for the first time ; and I was informed 
 that an Indian squaw, the first time she saw a 
 coach pass at a spanking trot, and watched the 
 wheels revolving rapidly, clapped her hands in 
 delight, exclaiming, Run, little one, run ! or the 
 big one will catch you ! " The subject gradually 
 became monotonous. 
 
 At length, however, the day of our departure 
 
 dawned. 
 
 When the coach drove up to the door, at sight 
 of the dusty tumble-down conveyance, my wife- 
 true to her woman s nature was half inclined 
 to decline to trust her precious self therein, but 
 as I had paid our fares when booking our places 
 the driver having asked for the money, as he 
 had a perfect right to do 1 and as I assured her 
 every stage-coach proprietor warrants that his 
 stage is sufficiently secure to perform the journey 
 proposed, and is bound to examine his vehicles 
 every day, and if he does not is responsible for 
 accidents, 2 she consented to start; although 
 could see from her expression of countenance that 
 
 1 Chitty on Contracts, 292. 
 
 2 Bremner v. Williams, 1 C. & P. 414 ; Sharp t. Grey, 9 Bmg. 457. 
 
46 EVERYTHING MUST BE SOUND, 
 
 the ideal coach which she had been fondly cher 
 ishing was very different to the one into which we 
 entered. Our luggage was mounted on top, and 
 soon we were rumbling clown 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 my 
 self to the effect that she need not be anxious, as 
 the owner was responsible that all the equipments 
 of the conveyance, drivers, horses, harness, were 
 fit and suitable. 1 
 
 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 2 or let 
 other persons get inside," replied number one, 
 waxing wrathy. 
 
 " No, indeed," chorused the others. 
 
 "Ladies," I said, "I will be most happy to 
 give up my place and ride outside ; the driver 
 should have told me that the inside had been en- 
 
 1 Crofts v. Water-house, 3 Bing. 321 ; Jones v. Boyce, 1 Stark. 493 ; Stokes 
 v. Saltonstall, 13 Peters, 181 ; Ingalls v. Bills, 9 Met. 1. 
 
 2 Long v. Home, 1C. & P. 611. 
 
AND EVERY ONE CAREFUL. 47 
 
 gaged, and then my wife and myself would have 
 waited until some other day." 
 
 " Well," quoth the driver, " the ladies had not 
 paid for the seats, and we were not bound to keep 
 them for them." : 
 
 With withering sarcasm the eldest maid replied, 
 " Here is your money, sir." 
 
 If a look could have annihilated a coachee, never 
 again would that man have mounted a box, or 
 handled the ribbons, after the Medusa glance he 
 then received. I emerged from the inside, into 
 which the ladies stowed themselves and several 
 parcels, packages and bandboxes, while several 
 boxes of larger growth, containing their staple 
 goods, were hoisted up aloft. After picking up a 
 man we rattled off down the street into the open 
 country. 
 
 The last comer had not as yet paid his fare, 
 and at the first stopping-place- he was asked for 
 it ; but he demurred, saying that as he had not 
 prepaid the fare, it was not due until the whole 
 journey was completed. 
 
 " You will have to leave the stage then," said 
 the collector. 
 
 " I 11 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 acquies 
 cence in my riding to the end before paying up, 
 
 1 Ker v. Mountain, 1 Esp. 27. 
 
48 EVERYTHING MUST BE SOUND, 
 
 so you may howl and swear as much as you 
 like." 1 
 
 At this the man of fares subsided, and we re 
 sumed our slow jog-trot without any diminution 
 of numbers. The jolting of our vehicle soon 
 caused one of the trunks belonging to one or 
 other of the four sisters to gape and yawn in a 
 manner which exposed the contents thereof in a 
 way which would doubtless have caused the fail- 
 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 scat 
 tering themselves over the dusty road, and know 
 ing that the box not having been securely and 
 properly packed and fastened, the carrier would 
 not be liable for any loss or damage happening 
 to it, 2 I persuaded the driver to stop until the 
 mischief could be remedied ; for such an in 
 jury would vex a saint, much more a shrew of 
 her impatient humor. With much grumbling he 
 consented, and all was soon made taut and 
 right. 
 
 To make up for lost time, we now rushed ahead 
 at a terrific pace, considering the clumsy, cum 
 brous, jingling, jerking concern in which we were 
 travelling. The ladies within (who were crushing 
 their bonnets, elbowing each other under the fifth 
 rib, jumping up and bouncing into one another s 
 
 1 llowland v. Brig Lavinia, 1 Peters Adm. 126 ; Detouches v. Peck, 9 John 
 son, 210. 
 
 2 Walker v. Jackson, 10 M. & W. 161. 
 
AND EVERY ONE CAREFUL. 49 
 
 laps with every plunge of the coach), cried one 
 and all : 
 
 " Oh, do be careful don t go so fast." And 
 I, in admonitory tones, told the driver that we 
 would hold him liable for any injuries that might 
 happen to either ourselves or our baggage, in con 
 sequence of his racing in such an improper man 
 ner. 1 
 
 "All right," said he, "I m responsible, and I 
 am master too, here ; so I ll do .just what I like." 
 
 Scarce had he uttered these words when we 
 drew near a large spreading tree, standing in the 
 middle of the road. At a glance I saw that the 
 coach must pass under the outstretched branches, 
 and that they were so low that they would as 
 suredly sweep the top of the stage clear of lug 
 gage and whatsoever else was thereupon, and un 
 fortunately I myself was thereupon. I had no 
 choice left but to jump off or remain in certain 
 peril ; mindful of my early performances in the 
 gymnasium, of the two threatening evils I chose 
 what appeared the lesser, and as the foremost 
 twigs took off the hat of the driver (who was con 
 siderably 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 
 
 1 Mayor v. Humphries, 1 C. & P. 251 ; Gough v. Bryan, 5 Dowl. 765. 
 W. &R. OFT. 4 
 
50 EVERYTHING MUST BE SOUND, 
 
 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 con 
 versation took place between myself and the man, 
 interspersed with ejaculations more vigorous than 
 religious, he contending that I had only myself 
 to thank for my injuries, as if I had bent low 
 enough I would not have been touched by the 
 tree. 
 
 " All very well," I replied, " if I had been the 
 size of the little husband no bigger than a thumb 
 what was put into a quart pot and made to beat a 
 drum, but Mr. Thomas Thumb himself, if he had 
 been on top, could not have escaped from that 
 tree. However, your master is liable to me for 
 the injuries I have received." 1 
 
 " No, he is n t," surlily replied the Jehu, " be 
 cause I say if you had staid quiet you would not 
 have been hurt." 
 
 " Even if that were so, it would make no differ 
 ence, as I entertained a well-founded apprehension 
 of being decapitated by that ugly branch." 
 
 I argued not, however, with the man, but limp 
 ing 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 expos 
 ing myself to any more such frightful risks out 
 side, but to come within where she was sure there 
 
 1 Ingalls v. Bills, 9 Met. 1 ; Stokes v. Saltonstall, 13 Pet. (U. S.) 181 ; Frink 
 . Potter, 17 111. 406. 
 
 2 Jones v. Boj-ce, 1 Stark. 493. 
 
AND EVERY ONE CAREFUL. 51 
 
 was plenty of room ; but I preferred the fresh air 
 and fine view aloft to the close musty smell and 
 narrow field of vision down below. 
 
 When again under way, my fellow-passenger, 
 who by sitting on the box with the driver had 
 avoided the collision, began to tell me of his 
 grandmother, one Mistress Elizabeth Dudley, who 
 on one occasion was an outside passenger to the 
 Cross Keys, Chelsea. When in front of the gate 
 way leading to the stable-yard of that inn, the 
 coachman requested the travellers to alight, as the 
 passage into the yard was awkward. As Mrs. 
 Dudley did not wish to soil her pumps in the 
 dirty road, she said she would rather be driven 
 into the yard. Coachee told her to stoop, and 
 then lashed up his horses. The coach was 8 feet 
 9 in. high, and the archway only 9 feet 9 in., and 
 Betsy, not being able to squeeze herself into the 
 interstice of twelve inches, received a severe in 
 jury by having her back and shoulders knocked 
 against the archway ; she recovered, however, 
 with 100 damages. 1 
 
 I said : " Of course, to excuse the driver from 
 responsibility, it must always be shown that the 
 plaintiff was guilty of negligence which contrib 
 uted directly to the injury. 2 I remember one 
 case where a man was asked by the driver to ride 
 inside a coach, and told that if he remained out- 
 
 1 Dudley v. Smith, 1 Camp. 167. 
 
 Colegrove v. N. Y. & Harlem, etc., R. R. Co., 6 Duer, 382. 
 
52 EVERYTHING MUST BE SOUND, 
 
 side it would be at his own risk ; he treated both 
 the request and the hint with silent contempt, 
 and being injured by the overturning of the car 
 riage, sued the owners and got damages, as it ap 
 peared that the accident occurred from the negli 
 gence 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, al 
 though he does not warrant the absolute safety of 
 his passengers is, nevertheless, answerable for the 
 smallest negligence ; 2 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." 3 
 
 " An American, however, in gall and bitterness 
 was told by a court, that carriers, although bound 
 to use the utmost care and diligence to prevent 
 those injuries which human care and foresight can 
 guard against, still are not liable for injuries hap 
 pening through hidden defects which could not 
 from the most careful and thorough examination 
 be discovered." 4 
 
 " Yes," interrupted my friend, " but in the 
 State of Illinois, a Potter, who owned a stage- 
 
 1 Keith v. Pinkham, 43 Maine, 501 ; Lackawana & B. R. R. Co. v. Chene- 
 wirth, 52 Fenn. St. 382. 
 
 2 Harris v . Costar, 1 C. & P. 636 ; Christie v. Griggs, 2 Camp. 79. 
 s Sharp v. Grey, 9 Bing. 457. 
 
 4 Ingalls v. Bills, 9 Met. 1. 
 
AND EVERY ONE CAREFUL. 53 
 
 coach, was held liable for an injury to a passen 
 ger, which resulted from the breaking of an axle- 
 tree, through the effect of frost." 1 
 
 " Long ago the courts in England held that a 
 man established a primd facie case by proving his 
 taking passage in a coach, his coming to grief 
 while in it, and the injury he sustained ; and 
 then that the proprietor must show, if he could, 
 that his vehicle was as good as a vehicle could be, 
 and that the driver was as skillful a handler of 
 the reins as could be found." 2 
 
 " Yes, as Best, C. J., once said, a coachman 
 must have competent skill and must use that skill 
 with discretion ; he must be well acquainted with 
 the road he undertakes to drive ; he must be pro 
 vided with steady horses, a coach and harness of 
 sufficient strength and properly made, and also 
 with lights by night. If there be the least failure 
 in any one of these things, the duty of the propri 
 etor is not fulfilled, and he is answerable for any 
 injury or damage that happens. 3 He also is so un 
 less the driver exercised a sound discretion at the 
 time of the accident. If he could have exercised a 
 sounder judgment or better discretion than he did, 
 as by driving slower or faster, or by telling his 
 passengers to dismount at a dangerous or difficult 
 place, the owner must make compensation." 4 
 
 1 Frink v. Potter, 17 111. 406. 
 
 2 Christie v. Griggs, 2 Camp. 79. 
 
 Crofts v. Waterhouse, 3 Bing. 319 ; Farish v. Reigle, 11 Gratt. 697. 
 4 Stanton v. Weller, ffil. Term, 6 Viet. U. C. 
 
54 EVERYTHING MUST BE SOUND, 
 
 " Fortunately, however, for the pockets of car 
 riers, they are not considered as actual insurers of 
 the safety of those who intrust their precious bodies 
 to them. Accidents will happen in the best regu 
 lated concerns, and it appears to be settled that 
 when they do occur where there is no negligence 
 or default, the law will protect carriers from the 
 demands of injured ones." J 
 
 " Oh, yes, that is a well-established doctrine, 
 and many cases might be quoted to sustain it. 
 Where, for instance, on a dark night the lights 
 were obscured by a fog, or the coachman without 
 any fault of his gets off the road." 2 
 
 "And also," I chimed in, "where extreme cold 
 prevented the driver doing his duty ; 3 and where 
 the reflection of the sun upon falling water fright 
 ened the horses so that they ran away and knocked 
 things into pie ; 4 and where an axle-tree that was 
 sound and perfect snapped asunder. 5 And where 
 a sleigh or a carriage upsets through mere accident 
 and without culpable neglect on the part of the 
 driver as where he had been driving along a 
 track in a ditch to take advantage of the small 
 modicum of snow remaining and in turning on to 
 the road again got into a hidden hole and upset 
 and the horses escape from the hands of the Jehu, 
 
 1 Aston v. Heaven, 2 Esp. 533. 
 
 2 Crofts v. Waterhouse, 3 Bing. 321. 
 
 3 Stokes v. Saltonstall, 13 Peters, 181. 
 
 4 Aston v. Heaven, supra. 
 
 6 Parker v. Flagg, 26 Me. 181 ; Add. on Contracts, 495. 
 
AND EVERY ONE CAREFUL. 5.5 
 
 and ran away and do mischief to the person or 
 property of other people; though undoubtedly the 
 owner would be liable where there was clear neg 
 ligence on the part of himself or driver which led 
 to the carriage being overturned and the escape of 
 his horses. 1 If a man has carelessly left his horses 
 standing on the highway, while he is drinking or 
 loafing in a tavern, and the horses run away and 
 commit an injury, the right to recover damages is 
 clear. 2 Even if a third party causes the stampede 
 of the horses which are left standing alone, the 
 owner will be liable for all damage done; 3 and it 
 will be inferred that a horse was negligently fast 
 ened if it gets loose and runs away. 4 But where 
 a pony and chaise were left standing in the street 
 without any person to take care of them, and af 
 terwards the pony was seen running away with 
 the chaise, and those who saw the runaway did not 
 know the cause of the starting. The owner of the 
 turnout, however, proved that his wife was hold 
 ing the nag by the bridle, when a Punch and Judy 
 show coming up frightened the pony, which break 
 ing from the lady ran off, and Lord Den man in 
 charging the jury, said : If the facts are true as 
 suggested by the defense, I very much think you 
 will be disposed to consider this an inevitable ac 
 cident ; one which the defendants could not pre 
 vent, " 5 
 
 i Robinson v. Bletcher, 15 U. C. Q. B. Rep. 160. 2 ibid. 
 
 s Illidge v. Goodwin, 5 C. & P. 190; Park v. O Brien, 23 Conn. 339. 
 
 * Strup v. Edcns, 22 Wis. 432. 
 
 c Goodman v. Taylor, 5 C. & P. 410 ; Kennedy r. Way, Brightley (Pa ), 186. 
 
56 EVERYTHING MUST BE SOUND, 
 
 " Of course if one gentleman when out driving 
 offers another a seat in his carriage, he is not liable 
 at all for an accident afterwards occurring; unless, 
 indeed, it were of a gross description; and, as 
 nothing is more usual than for accidents to happen 
 in driving, without any want of care on the part 
 of the driver, no primd facie presumption of neg 
 ligence is raised when an accident does occur, so 
 the injured one must give affirmative evidence 
 of gross negligence on the part of his oblioino- 
 
 n . -. ., O & 
 
 inend. 
 
 " Oh, yes ; that is well settled by a case where 
 the Privy Council reversed the decision of the Su 
 preme Court of Victoria. A gentleman was con 
 veying the plaintiff, who was a decorator and gar 
 dener in his employ, to perform for him certain 
 work. The defendant, the gentleman, drove, and 
 while on the road the king-bolt broke, the horses 
 bolted, the carriage was overturned, the plaintiff 
 thrown out and stunned ; and when the man came 
 to himself the horses and forewheels of the buggy 
 had vanished. There being no evidence of gross 
 negligence, the decorator had to bear his injuries 
 and bruises unavenged. 1 One cannot fairly be 
 expected to examine very strictly and carefully 
 the state of the bolts and fastenings of his carriage 
 every time he goes out with it." 2 
 
 " By the way," said my companion, " your own 
 right to recover is perfectly clear, for I am sure 
 
 1 Moffatt v. Bateman, L. B,., 3 P. C. App. 115. 2 ibid. 
 
AND EVERY ONE CAREFUL. 57 
 
 that I have seen in some place or other that where 
 a woman was jolted off a stage and had her leg 
 fractured by some luggage that was thrown on it, 
 she was successful in a suit against the owners of 
 the vehicle." l 
 
 " Thanks for the information," I replied, " I 
 did not know that there was a case so exactly on 
 all fours with my own." 
 
 " A little research nowadays will enable one to 
 find a decision on almost every possible point the 
 mind of man can conceive, so great is the number 
 of the reports now accumulating with fearful ra 
 pidity upon the shelves of law libraries. Ah me ! 
 the speed- with which the yearly accretions of re 
 ports fill up every library, not of Brobdignagian 
 proportions, is an appalling phenomenon. It makes 
 me sigh to consider the lot of our grandchildren 
 who may chance to commence the study of law ! 
 I"- 
 
 A sudden jerk and bump, caused by a wheel 
 hitting against a stump in the middle of the road, 
 stopped the sentence and set us talking about the 
 liability of road companies and municipalities as 
 to keeping the roads in a proper, safe, and conven 
 ient condition. 
 
 " Yes," said my friend, " towns are not ab 
 solved from their responsibility because some one 
 else is bound by law to keep the road smooth and 
 safe. 2 But of course the liability is limited to in- 
 
 1 Curtis v. Drinkwater, 2 B. & Ad. 169. 
 
 2 Wallace v. New York, 2 Hilton, 440 ; Phillips v. Veazic, 40 Me. 96. 
 
58 EVERYTHING MUST BE SOUND, 
 
 juries caused by defects and obstructions for which 
 the town might be indicted, or which by law they 
 are bound to remove." 1 
 
 " I remember," I said, " hearing of a man who 
 lost his horse in a deep mud-hole filled with water 
 and partly in the highway, which he took for a wa 
 tering-place, recovering its value from the city." 2 
 
 " Yes ; if it had been a hired nag, for the 
 value of which the driver had to pay the owner, 
 his rights and his wrongs would have been just 
 the same. 3 If this coach had been upset just now, 
 the road company would have been liable to the 
 coach proprietor for all injuries to this vener 
 able structure on which we are perched, but not 
 for any damages which we might recover against 
 him for bruises and scratches, dislocations and 
 broken bones that might fall to our lot." 4 
 
 " Still there are some cases of accidental dam 
 age which the law regards as mere misfor 
 tunes, or pure accidents, where no negligence or 
 fault is imputable to any one ; as where a man 
 was thrown out of his wagon and broke his collar 
 bone in consequence of the wheel getting into a 
 small rut. The court will not assume that the 
 badness of the road is proved beyond a peradven- 
 ture merely because an accident took place while 
 the driver was exercising due care." 5 
 
 1 Merrill v. Hampden, 26 Me. 236 ; Davis v. Bangor, 42 Me. 522. 
 
 2 Colbb v. Standish, 14 Me. 198. 
 
 3 Littlefield v. Biddeford, 29 Me. 310. 
 
 * Talmadge v. Zanesville & M. Road Co., 11 Ohio, 197. 
 5 Chappel v. Oregon, 36 Wis. 145. 
 
AND EVEKY ONE CAREFUL. 59 
 
 " One is not required, however, to exercise ex 
 traordinary care and prudence. 1 And as old Lord 
 Ellenborough says, before one can recover damages 
 he must not only show that there was an ob 
 struction that caused the trouble, but also that he 
 himself was not lacking in ordinary care and in 
 endeavoring to avoid it." 2 
 
 " I always think highly of Ellenborough s de 
 cisions," I said, "although he was such a ninny 
 that when in the Devil s Invincibles (a famous 
 volunteer corps), he was ever in the awkward 
 squad ; and Eldon used to say that he thought 
 Ellenborough more awkward than himself, but 
 others thought it was difficult to determine which 
 of the two was entitled to bear the palm." 
 
 " Ah, yes ! the Devil s Invincibles was the 
 corps in which there were some attorneys, and 
 when Lieutenant-colonel Cox, Master in Chan 
 cery, who commanded, gave the word Charge, 
 two-thirds of the rank and file took out their note 
 books and wrote 6s. BdS 
 
 " Ha ! ha ! that is as good as the story of the 
 volunteer company of lawyers, who, when the 
 drill-sergeant gave the command Right about 
 face, all stood still, and cried, Why ? 
 
 " Unlike the six hundred, 
 
 Theirs was to make reply, 
 Theirs but to reason why, 
 Theirs not to do, nor die. " 
 
 1 Cremer r. Portland, 36 Wis. 92. 
 
 2 Butterfield v. Forrester, 11 Bast, 60 
 
60 EVERYTHING MUST BE SOUND, 
 
 " You might add the concluding lines of that 
 noble poem," I said. 
 
 " When can their glory fade ? 
 Oh the huge charge they made ! 
 
 All the world wondered. 
 Pay them the charge they made ! 
 Pay them the bill they made ! 
 Noble attorneys. " 
 
 " Good. Very good. Do you smoke." 
 And he added to the effect of his question by 
 handing me a well filled case of choice cheroots. 
 Soon we were both lazily puffing at our cigars, and 
 dreamily enjoying ourselves as we drove along 
 past woodland and meadow, up hill and down, 
 over sparkling, bubbling streamlets, beside fields 
 of waving grain. 
 
 The day was charming. The heat of the July 
 sun was tempered by a cooling breeze which blew 
 softly upon us as we journeyed. The dust had 
 been laid to rest by the sprinkling of an early 
 shower ; the birds carolled gayly amid their leafy 
 bowers ; here and there the squirrel peeped forth 
 from his hiding-place and chattered at us as we 
 passed, or raced ahead along the zig-zag fence ; at 
 one moment fluttered by a 
 
 Butterfly ranging on his yellow wings. 
 
 A primrose gone alive with joy, to dance with living things ; 
 
 then came large white ones " which looked as if 
 the May-flower had caught life, and palpitated 
 forth upon the winds." 
 
 And my friend dreamily muttered, " Would 
 
AND EVERY <^ 7 E CAREFUL. 61 
 
 that I were an insect ! Fancy the fun of tucking 
 one s self up for a night in the leaves of a rose, 
 and being rocked to sleep by the gentle sighs of 
 summer air ; and having nothing to do when you 
 awake but to wash yourself in a dewdrop, and 
 then eat your bedclothes." 
 
 Ever and anon we heard the truly rural sounds 
 of the whetstone against the scythe, and the low 
 ing of the kine, or the plaintive cry of some wan 
 dering lamb. All these arcadian sights and sounds 
 acted as a gentle lullaby upon our senses already 
 soothed by nicotine, and we slept. 
 
62 NEARLY DRIVEN TO DEATH, 
 
 CHAPTER V. 
 NEAELY DEIVEN TO DEATH, AND HOW TO PASS 
 
 Narrow Escape. Look out for the Locomotive when the Bell rings. 
 Railway not liable when Driver in Fault. Horses frightened by 
 Engine. Ferry-boats and Men- On the Wrong Side. The 
 Laws of the Road. Fatal Indecision-. Lien on Trunks. Reflec 
 tions on Lawyers. 
 
 WE had a sharp awakening from our calm re 
 pose. A shrill cry of " Stop ! " a jerk that nearly 
 threw us to the ground as the driver reined in his 
 horses, the wild fierce screech of an engine, the 
 rumbling roar of a train as it dashed by, recalled 
 us effectually from our wanderings in dream-land 
 to the fact that we had been near a sudden and a 
 fearful death. The driver had been nodding 
 sleepily on his box and had not noticed that we 
 were so near a railway crossing, and so had not 
 looked out for the train ; and when aroused, the 
 horses feet were actually upon the track and the 
 cars but some seventy yards distant. The train as 
 it rushed past almost scraped the horses noses, so 
 little had he been able to back them. On look 
 ing round I saw that the track must have been 
 visible for some time before we came upon it, and 
 one of the ladies said that she had heard a whistle 
 a few seconds previously. 
 
AND HOW TO PASS. 63 
 
 Of course, as might be expected, we all launched 
 forth against Master Coachee, who was too fright 
 ened to reply. I said : 
 
 " Don t you know that you are bound to keep 
 your eyes open ? It is your duty, and a duty dic 
 tated by common sense and prudence, on approach 
 ing a crossing, to do so carefully and cautiously, 
 both for the sake of your own passengers and 
 those travelling by rail." l 
 
 " Yes," chimed in my friend, " Chief Baron 
 Pollock says, that a railway track per se is a warn 
 ing of danger to those about to go upon it, and 
 cautions them to see whether a train is com- 
 ing." ^ 
 
 " One must judge and act reasonably in cross 
 ing a track/ I continued. " One must not blindly 
 and willfully drive upon it whether there is danger 
 to be apprehended from his doing so or not. If 
 one willfully .goes upon the line of rails, as you 
 were about to do, when danger is imminent and 
 obvious, and sustains damage, he must bear the 
 consequences of his own rashness and folly. 3 In 
 fact, of late it seems to have been held that a man 
 crossing a railway where there are no gates or flag- 
 
 1 Nicholls v. Gt. Western Rw., 27 U. C. Q. B. 393 ; Boggs v. Gt. Western 
 Rw. Co., 23 U. C. C. P. 573 ; Ellis v. Gt. Western Rw. Co., L. K., 9 C. P. 551 ; 
 Johnston v. Northern Rw. Co., 34 TJ C. Q. B. 432 ; Penn. Rw. Co. . Beale, 9 
 Can. L. J. (N. S.),298. 
 
 2 Stubley v. London and Northwestern Rw., L. R. 1 Ex. 16; questioning 
 Bilbee r. London, B., & S. C. Rw. Co., 18 C. B. (N. S.), 584. 
 
 3 Winckler v. Gt. Western Rw., 18 U. C. C. P. 261 ; Dascomb v. Buffalo & 
 State Line R. R. Co., 27 Barb 221 ; Mackey v. N. Y. & C. R R. Co., 27 Barb. 
 
64 
 
 NEARLY DRIVEN TO DEATH, 
 
 men must stop, listen, and keep a sharp lookout 
 for the trains." l 
 
 " And," quoth my new friend, " a traveller is 
 not exonerated from the duty of looking up and 
 down the rails before going upon them, by reason 
 of the engineer omitting to ring the bell or blow 
 the whistle ; nor is the company in such a case 
 liable for injuries, 2 unless it is shown that the 
 engineer s omission had a tendency to produce the 
 loss or damage." 3 
 
 " The Court of Appeals in the State of New 
 York, however, holds that a traveller on a public 
 road has a right to rely upon railway companies 
 obeying the law and giving the necessary warnings 
 when a train is approaching a crossing. 4 And if 
 through negligence h orses are frightened at a cross 
 ing, the railway company is responsible for all dam 
 ages arising. 5 Moreover, the late Sir J. B. Robin 
 son, C. J., of Ontario thought that where the proper 
 signals were neglected, the company could not ex 
 cuse themselves by showing that the injured one 
 did not manage so well as he might have done, or 
 that his horse was restive or unsteady ; 6 and " 
 
 1 Pittsburg, F. W., & C. Rw. v. Dunn, 56 Penn. St. 280 ; Bait. & Ohio R. R, 
 v. Brcinig, 25 Md.378; Skelton v. L. &N. W.Rw.,L. R.,2 C. P. 631; Johnston 
 v. Northern Rw., 34 U. C. Q. B. 439 ; Penn. R. v. Ackcrman, 74 Penn. St. 265. 
 
 2 Havens v. Erie R\v., 41 N. Y. 296 ; Grippen v. N. Y. 0., 40 N. Y. 34 ; Parker 
 v. Adams, 12 Met. 415 ; Johnston v. Northern Rw., supra; Bellefontaine Rw. 
 v. Hunter, 33 Ind. 335 ; Miller v. G. T. R., 25 C. P. (Ont.) 389. 
 
 3 Galena & Ch. Rw. v. Loomis, 13 111. 548. 
 
 4 Hart v. Erie Rw. Co., 3 Albany L. J. 312. See also Tabor v. Mo. Valley 
 Rw., 46 Mo. 353 ; S. C., 2 Am. Rep. 270. 
 
 5 Sncesby v. Lancashire & Y., etc., 1 Q. B. Div. 42. 
 
 c Tyson v. G. T. Rw., 20 U. C. Q. B. 258. See also, Ernst v. Hudson River 
 R\v., 35 N. Y. 9. 
 
AND HOW TO PASS. 65 
 
 Here a low wailing cry of " Oh, we might have 
 all been killed been killed been killed" 
 uttered by one of the old maids, the others joining 
 in the chorus, struck upon our ears. I chimed in 
 with : 
 
 " And if we had, allow me to inform you ladies, 
 that neither we ourselves nor those who come after 
 us could recover damages against the company 
 therefor, because it would have been owing to 
 the gross carelessness of our driver, 1 and we would 
 be considered as being in the same position as he 
 is and partakers with him in his sins." 2 
 
 " That s so," said my friend. " Every traveller 
 in a conveyance is so far identified with the man 
 who drives or directs it, that if any injury is sus 
 tained by him from collision with another vehicle, 
 through the joint negligence of the drivers of the 
 two traps, so that his driver could not maintain 
 an action against the other driver, the passenger 
 is himself equally prevented suing." 3 
 
 " What a shame ! " chorused the Graces, plus 
 one. " And is there nobody you can punish ? " 
 they querulously queried. 
 
 " Oh, yes ; you can sue your own driver, or his 
 employer. You have a clear and undoubted 
 remedy against them." 4 
 
 1 Winckler v. Gt. Western Rw., 18 U. C. C. P. 261 ; Nicholls v. Gt. Western 
 Rw.,27 Q. B. U. C. 382. 
 
 2 Stubley v. London & N. W. Rw., L. R., 1 Ex. 13. 
 
 3 Thorogood t>. Bryan, 8 C. B. 115, cited Id. 131 ; Rigby v. Hewitt, 5 Ex. 
 240; Greenland v. Chaplin, Ib. 247 ; Armstrong v Lancashire & Y. llw.,L. 
 R., 10 Ex. 47. 
 
 4 Maule, J., in Thorogood v. Bryan, 8 C. B. 131. 
 W. & R. OF T. 5 
 
66 NKARLY DRIVEN TO DEATH, 
 
 " Much good it would do you to sue me," 
 growled the man. " You can t take the breeks 
 off a Heelander." 
 
 " It has always seemed to me," I remarked to 
 the legal gentleman beside me, " to be highly un 
 reasonable that by a legal fiction the passenger 
 should be so identified with the driver. What do 
 you think on that point ? " 
 
 " I quite agree with you," he returned, " and 
 with my celebrated namesake, Mr. Smith, and I 
 think that the question why both the wrong-doers 
 should not be considered liable to a person free 
 from all blame not answerable for the acts of 
 either of them and whom they have both in 
 jured, should be more seriously considered than it 
 has yet been." l 
 
 " I was glad to see that recently in New Jersey 
 where a man on a street car was injured by a 
 railway train, the court held that the negligence 
 of the car-driver could not prevent the man from 
 getting damages, the driver not being his ser 
 vant." 2 
 
 " By the way," said my friend, " did you notice 
 how near we came to the post of the railway 
 crossing sign-board, as the man backed the horses 
 from the track ? I think such posts are a perfect 
 nuisance/ 
 
 " They are not necessarily an indictable nui- 
 
 1 Note to Ashby v. White, 1 Smith s Leading Cases (6th ed.), 355. 
 
 2 Bennett v. N. Y., etc., 36 N. J. 225. 
 
AND HOW TO PASS. 67 
 
 sance ; and as the law allows them to erect such a 
 sign, they would not be liable for any accident 
 arising from the posts obstructing part of the road, 
 at least if they were placed in a reasonably proper 
 manner with a due regard to all the surrounding 
 circumstances. 1 How the steam came out of the 
 engine ! It is a wonder that the horses were not 
 more frightened !" I added. 
 
 " Length of days, hard work, and shortness of 
 commons have doubtless curbed their spirits. I 
 remember on one occasion some railway em 
 ployees were endeavoring to put an engine on the 
 track near a crossing, when my friend Mrs. Stott 
 and another lady drove up in a wagon ; they 
 asked if they might cross. One man said Yes, 
 and then laughingly winked at the others. Mrs. 
 S. got out and led the horse, but before they had 
 passed over steam was let off through the sides of 
 the locomotive ; the horse got frightened, jumped 
 upon my friend, knocked her down, ran over her 
 and away. The court held the railway liable for 
 this injury ; the company tried to avoid the ver 
 dict by saying that the damages arose from the 
 unnecessary and wanton act of their servants ; 
 but the judges inclined to the opinion that even if 
 the act had been unnecessary and wanton, reck 
 less and improper, still as it was done in the 
 course of the servants employment, and for the 
 purpose of promoting it, the company must bear 
 
 i Soule v. G. T. R., 21 C. P. (Ont.), 308. 
 
68 NEARLY DRIVEN TO DEATH, 
 
 all the responsibility. 1 Of course, however, com 
 panies are not liable for accidents caused by 
 horses getting frightened at the smoke, steam, or 
 noise of their trains, when their servants do noth 
 ing amiss." 2 
 
 Presently we came to a broad river unspanned 
 by any bridge ; we had to cross, therefore, in an 
 old-fashioned ferry. All dismounted. I noticed 
 that the little wharf to which the scow was at 
 tached was much the worse for wear, but the 
 nymphs and naiads fell in love with none of us, so 
 no one broke through, fortunately for the ferry 
 man, for he would have been liable for any acci 
 dent. 3 % 
 
 " Ha ! said my friend, as the stage gave a 
 great bump in lighting on the boat. " My Chris 
 topher Columbus, you ought to have your flats so 
 that all drivers and carriages may embark with 
 ease ; and that jolt rattled the ivories in Jehu s 
 jaw." 4 
 
 " Shut up yours, and shell out," was the laconic 
 response. 
 
 "How deeply seated is habit," spake Mr. 
 Smith. " The bee makes honey just as sweet 
 now as when Samson stole it from the lion ; and 
 this pitiless navigator must be paid his fare before 
 
 1 Stott v. G. T. R., 24 II. C. C. P. (Ont.), 347; Limpus v. London Omnibus 
 Co., 1 H. & C. 626. 
 
 2 Burton v. Phila., etc.,B. K. Co., 4 Barring. (Del.), 252. 
 s Pate v. Henry, 5 Stew. & Port. 101. 
 
 4 Miles v. James, 1 McCord, 167. 
 
AND HOW TO PASS. 69 
 
 we start, 1 just as old Charon had to receive his 
 obolus ere he would ferry his fleshless passengers 
 across the gloomy Styx." 
 
 " You re too fleshy to lean up agin those thair 
 sticks, unless you want to take a header back 
 wards," quoth the ferryman. 
 
 " Oh ! " exclaimed Smith, starting inwards as 
 the rail started outwards, " you ought you 
 should you are bound by law to have your 
 boat, and your slips, and your landing stages, and 
 everything else, safe and secure, not only for pas 
 sengers, but also for their horses and carriages, 
 luggage and merchandise ; 2 and you are liable for 
 any damage happening to a vehicle, or the horses, 
 as soon as they are on board, although the driver 
 still keeps charge." 3 
 
 The latter part of the remark seemed called 
 forth by the coach having begun to slip back 
 wards towards the water. 
 
 " That thair is open to argyment," said the 
 boatman. " I guess I knows my bizness. Some 
 old judges say that a ferryman is not liable un 
 less the animals be put in his charge ; 4 nor where 
 the driver don t take care. 5 Nor yet where the 
 critters are so spry that they keant be trusted 
 on a boat, 6 which I calkerlate them thair nags 
 aint." 
 
 Pain v. Patrick, 3 Mod. 289. 
 
 Willoughby v. Horridge, 12 C. B. 751 ; Addison on Torts, 493. 
 
 Cohen v. Hume, 1 McCord, 439 ; Fisher v. Clisbee, 12 111. 344. 
 
 White v. Wimrisimmet Co., 7 Cush. 155. 
 
 Wilson t\ Hamilton, 4 Ohio St. 722. 
 
 Fisher . Clisbee, supra. 
 
70 NEARLY DRIVEN TO DEATH, 
 
 " Down in Mississippi, a ferryman had to pay 
 for twq stage-horses that jumped overboard, and 
 the court said that as soon as the property is put 
 on the boat, the boatman has it primd facie in his 
 charge, and is responsible for it, unless the owner 
 consents to take exclusive charge." 1 
 
 " I guess I wish we poor chaps could make a 
 prime and fashions charge. I have to Work this 
 old machine mornin , noon, and night, barring 
 when it is too windy, or I have gone to roost, as I 
 live away over there." 2 
 
 Safely we passed o er the flood, and safely dis 
 embarked and reseated ourselves in the venerable 
 trap, which with creaks and groans as though 
 rheumatic pains shot through every bolt and bar 
 ascended the bank. 
 
 Just then we passed a heavy wagon. It was 
 on the wrong side of the road, and we narrowly 
 escaped collision. I sung out to the farmer driv 
 ing it : 
 
 " If you want to drive on the wrong side, old 
 fellow, you should take more care and keep a bet 
 ter lookout, 3 for if an accident had happened, as 
 we had not ample room to avoid your wheels, you 
 would have been liable for the injury, being on 
 the wrong side of the road." 4 
 
 " Fine day, sir," was the only response that 
 
 1 Powell v. Mills, 37 Miss. 691. 
 
 2 Pate v. Henry, 5 Stew. & P. 101. 
 
 s Pluckwell . Wilson, 5 C. & P. 375. 
 < Chaplin v. Hawes, 3 C. & P. 554. 
 
AND HOW TO PASS. 71 
 
 came, and our driver, with a grin, told me that 
 the old man was as deaf as a door-nail. 
 
 My companion turned and said to me, " I have 
 often wondered why the rules of the road should 
 be so different in England from what they are in 
 America. In the old country the three laws are : 
 First, on meeting, each party shall bear to the 
 left ; second, in passing, the passer shall do so on 
 the right hand ; and, third, in crossing, the driver 
 shall bear to the left and pass behind the other 
 carriage. 1 In America, the first rule is the re 
 verse, that is, each party must keep to the right ; 2 
 but in passing, the foremost person bears to the 
 left, and the other passes on the off side, and in 
 crossing, the driver bears to the left hand and 
 passes behind the other carriage at least so says 
 Story." 3 
 
 " T is singular that there should be the differ 
 ence," I remarked. 
 
 " But that is not the only point of diversity. 
 In England these rules apply as well to eques 
 trians as to carriages; while in the United States 
 a traveller on horseback when meeting another 
 equestrian, or a carriage, may exercise his own 
 notions of prudence, and turn to the right or to 
 the left. 4 Of course common consent and imme- 
 
 1 Wayde v. Carr, 2 Dowl. & Ry. 255. 
 
 2 Kennard v. Benton, 25 Maine, 39 ; and in Ontario, by Con. St. U. C. ch. F6, 
 in meeting, conveyances must turn to right, and so when one is overtaken by 
 another. 
 
 3 Story on Bail. 699. 
 
 * Dudley v. Bolles, 24 Wend. 465. 
 
72 NEARLY DRIVEN TO DEATH, 
 
 morial usage require that a horseman should yield 
 the road to a wagon or other vehicle. 1 If, how 
 ever, he is mulish and will not turn out when he 
 might safely do so, and his steed is injured by a 
 collision, he is remediless. 2 Again, when one is 
 ahead in America he need not, unless he has some 
 milk of human nature in his veins, turn out at all 
 to let a man behind pass, if there is room enough 
 on either side." 
 
 " But if there is no room, what then ? " I 
 queried. 
 
 " Why, then, if it is practicable, the front one 
 must give an equal portion of the road to his fel 
 low biped behind ; and if it is not practicable, 
 number two must follow in Job s steps and exer 
 cise the Christian grace of patience, and wait until 
 a more favorable spot is reached. If number one 
 will not turn out when he can, he is answerable at 
 law for it. His pursuer, however, must not take 
 the matter into his own hands and attempt to 
 force his way past." 3 
 
 " It is," I said, "fortunate, however, that these 
 laws of the road are not inflexible like those of 
 the Medes and Persians of antique days, but may 
 on occasions be departed from." 4 
 
 u Yes ; if there is no other carriage in the way, 
 or if the road is broad enough, one may go on 
 
 i Washburn v. Tracy, 2 D. Chip. 128. 
 
 * Beach v. Par meter, 23 Penn. St. 196 ; Grier v. Sampson, 27 Pa. 183. 
 s Angell on Highways, 340. 
 
 * Wayde v. Carr, 2 Dow. & Ry. 255. 
 
AND HOW TO PASS. 73 
 
 whatever part lie fancies : l and in the crowded 
 streets of a city situations and circumstances may 
 frequently arise, where a deviation will not only 
 be justifiable, but absolutely necessary. 2 And, of 
 course, one may pass on the left side of a road, 
 or across it, in order to stop on that side ; 3 and 
 .conveyances stationary may be on either side." 
 
 " I believe that if there was sufficient room for 
 a defendant to pass without inconvenience, it will 
 not assist him when sued to say that the plaintiff 
 was on the wrong side. 5 Mr. Angell tells us that 
 if a man, not on his own side, suddenly meets 
 another and an injury results, he who is volun 
 tarily in the wrong must answer for all damages, 
 unless the other individual could have avoided 
 the accident. 6 And the fact that the one on the 
 wrong side is not able to turn out will not avail 
 him as a defence." 7 
 
 " Of course not. The injured one has not only 
 to show that the injurer was on the wrong side, but 
 also that he himself exercised ordinary precaution 
 to avoid collision. 8 If my share of the road is 
 trenched upon I cannot recklessly run into the 
 
 1 Aston v. Heaven, 2 Esp. 533 ; Palmer v. Barker, 11 Me. 338.; Foster r. 
 Goddard, 40 Me. 64. 
 
 2 Turley v. Thomas, 8 C. & P. 103. 
 5 Angell on Highways, 336. 
 
 * Johnson v. Small, 5 B. Mon. (Ken.), 25. 
 
 s Clay v. Wood, 5 Esp. 44 ; Parker v. Adams, 12 Mete. 415 ; Kennard 
 Burton, 11 Shepley (Me.), 39. 
 e Angell, 337. 
 i Brooks v. Hart, 14 N. H. 307. 
 Parker v. Adams, supra. 
 
74 NEARLY DRIVEN TO DEATH, 
 
 trespasser, and then turn round and sue for injury 
 arising from my devil-may-care conduct. I may, 
 of course, try to pass, if passing is reasonably pru 
 dent ; if not, I ought to delay and seek redress at 
 law, if damage ensue from my detention. 1 If a 
 wagon comes along so heavily laden that I cannot 
 pass it, the driver should stop at a convenient 
 place to let me go by. 2 A man on foot, or on 
 horseback, or in a light trap, cannot insist upon a 
 teamster with a heavy load giving up part of the 
 beaten track, if there be sufficient room to pass 
 without his doing so." 3 
 
 "I believe," I said, "that in winter when the 
 proper road is covered with snow, and the beaten 
 track is at the side, persons meeting on it must 
 turn to the right." 4 
 
 " If a collision does take place," said Smith, 
 who talked as if he had inwardly digested all the 
 reports ever published, " through a defendant s 
 fault, the plaintiff may recover against him dam 
 ages commensurate with the whole of the injury 
 sustained. 5 And, by-the-by, I noticed the other 
 day, that the laws of the road do not apply to 
 buildings which are traversing the highway." 6 
 
 " I should think not," I replied. 
 
 A pause for a few minutes took place. Better 
 
 * Brooks v. Hart, 14 N. H. 307. 
 
 2 Kennard . Burton, 25 Me. 39. 
 
 3 Grieru. Sampson, 27 Penn. St. 183. 
 
 4 Jaquith v. Richardson, 8 Met. 213 ; Smith v. Dygert, 12 Barb. 613. 
 Gilberton v. Richardson, 5 C. B, 502. 
 
 c Graves v. Shattuck, 35 N. II. 25Y 
 
AND HOW TO PASS. 
 
 far for me if it had never been broken on that 
 clay. But it was ordained otherwise. 
 
 " Well," said Mr. Smith at length, " we have had 
 a very pleasant drive together, and a very inter 
 esting conversation. I have enjoyed myself very 
 much, for it is not very often that one can meet 
 on the top of a coach, in this Ultima Thule of civ 
 ilization, with a man who can discourse so learn 
 edly on the law of carriers as you have done. But 
 I regret to say that I must leave you at this little 
 tavern, where the stage stops for dinner." 
 
 " I share your regret fully, and I, too, have 
 thoroughly enjoyed myself, and even my bruised 
 toe has forgotten to twinge and throb during our 
 
 converse." 
 
 "By the way," added Smith, "I find I have 
 forgotten, or lost, my purse ; could you kindly lend 
 me a V., for I have my fare to pay." 
 
 " Oh, certainly," I replied, with apparent pleas 
 ure, but with inward heaviness, for alas 
 
 I could plead, expound and argue, 
 
 Fire with wit, with wisdom glow ; 
 But one word for ever failed me, 
 
 Source of all my pain and woe ; 
 Luckless man ! I could not say it, 
 
 Could not dare not answer : No ! 
 
 The transfer of the Five was speedily made, 
 and at that moment the driver reined in his old 
 horses and drew up at the door of a country inn. 
 Quickly my debtor jumped off the coach ; with his 
 bag swinging in his hand, a nod to me and a low 
 
76 NEARLY DRIVEN TO DEATH, 
 
 salaam to the ladies, he was walking away, when 
 the driver called after him : 
 
 " I say, mister, where s that ere fare ? " 
 
 " Ah ! that s a trifle that quite escaped my mem 
 ory," responded my quondam comrade. " Never 
 mind, however, you will have a lien upon my 
 trunk in the meantime." l 
 
 " Where s your box ? " queried Jehu. 
 
 " Oh ! that s a question more easily asked than 
 answered. It is where many a more valuable 
 thing is, in nubibus, or in partibus infidelium. 
 However, it matters little, because you could not 
 detain me for the paltry fare, nor the clothes 
 that I have on, nor even this bag that I have in 
 my manual possession. 2 So by-by to you." 
 
 And away he went, leaving coachee pouring- 
 forth his vials of wrath in epithets and expletives 
 strong, if not polite. 
 
 " Alas," thought I to myself, "it is such sharp 
 and improper conduct that makes men wish, like 
 Shakespeare s Dick, 4 to kill all the lawyers ; 
 makes them abuse those who are (or should be) 
 the counsellors, secretaries, interpreters, and ser 
 vants of Justice the lady and queen of all moral 
 virtues and apply to the members of our pro 
 fession the language of Congreve of old : There s 
 many a cranny and leak unstopped in your con 
 science. If so be one had a pump in your bosom, 
 
 1 Wolf v. Summers, 2 Camp. 631. 
 
 2 Sunbolf v. Alford, 3 M. & W. 248. 
 
AND HOW TO PASS. < < 
 
 we should discover a foul liold. They say a witch 
 will sail in a sieve, but the devil could not ven 
 ture aboard your conscience. But I can flatter 
 myself that an honest lawyer, like myself, ; is the 
 life-guard of people s fortunes ; the best collateral 
 security for their estate ; a trusty pilot to steer 
 one through the dangerous and, oftentimes, inevi 
 table ocean of contention ; a true priest of justice, 
 that neither sacrifices to fraud or covetousness ; 
 and one who can make people honest that are ser 
 mon proof. He is one who can 
 
 Make the cunning artless, tame the rude, 
 Subdue the haughty, shake the undaunted soul ; 
 Yea, put a bridle in the lion s mouth, 
 And lead him forth as a domestic cur." 
 
78 DINING, RAINING, LOSING, AND ENDING. 
 
 CHAPTER VI. 
 
 DINING, RAINING, LOSING, AND ENDING. 
 
 Must wait at Stopping-places. Place booked taken at any Time. 
 Falling in ascending. Drenched with Rain. Coachmen are Com 
 mon Carriers, and liable as such. Loss of Money. Loss of 
 Luggage. Dangerous Short Cut. Bridges. Safe Arrival. 
 
 THE driver, annoyed at the loss of his fare, said 
 he would drive ahead at once and not wait, as he 
 usually did at this place, for his passengers to take 
 refreshments, but as my wife was hungry and the 
 old maids thirsty, I insisted upon his remaining ; 
 for a carrier has no right to deviate from estab 
 lished usages to gratify his own whims and fan 
 cies. 1 While we were partaking of a cold colla 
 tion, portions of which, doubtless, had done duty 
 on several former occasions, a gentleman arrived 
 at the inn, and from his conversation with the 
 driver I quickly perceived that he had paid his 
 fare for the whole way from town to our journey s 
 end, and that he now intended to take his seat, as 
 he clearly had a right to do. 2 He, too, was 
 booked for an inside place, and protested strongly 
 because sufficient room had not been left for him, 
 saying that as more than the legal number were 
 
 1 Chitty on Carriers, 253 ; Story on Bailments, 597. 
 
 2 Ker v. Mountain, 1 Esp. 27. 
 
DINING, RAINING, LOSING, AND ENDING. 79 
 
 already on board, he would not get on but would 
 sue the proprietor for all expenses he might be 
 put to in performing the remainder of his journey 
 by another conveyance. 1 
 
 " I took my place, " he exclaimed with empha 
 sis, " and now you are going to try to squeeze six 
 people into an infernal box that only holds five. 
 I 11 take a post-chaise and bring an action for all 
 the expenses incurred. I Ve paid my fare. It 
 won t do ; I told the clerk when I took my place 
 that it would not do. I know these things have 
 been done. I know they are done every day ; but 
 I never was done, and I never will be. Those 
 who know me best know it ; crush me." 2 
 
 The son of Nimshi tried to smooth down mat 
 ters, but in vain ; and the irascible gent went off 
 in high dudgeon ; whereat I rejoiced. 
 
 Just as we were starting, an old woman ap 
 proached, and after some chaffering agreed with 
 the driver as to the sum for which he would carry 
 her to the next village, and began to mount. Be 
 fore she was up the horses started, and she was 
 thrown to the ground and injured so much that 
 she could not come with us. I endeavored to 
 apply some balm by informing her that she had 
 better sue the owner of the stage ; for, she, being 
 a passenger as soon as the contract was made, he 
 was liable to her for the negligence of his man. 3 
 
 1 Chitty on Carriers, 252. 
 
 2 See Mr. Bowler s remarks in Pickwick. 
 
 3 Brien v. Bennett, 8 C. & P. 724 ; Lygo v. Newbold, 9 Ex. 302. 
 
80 DINING, RAINING, LOSING, AND ENDING. 
 
 We had not gone far, after our refreshments, 
 before the sky grew overcast, the wind arose, 
 heavy clouds began to scud across the sky, distant 
 mutterings of thunder grew more and more audi 
 ble, rolling, rumbling, rattling, nearer and nearer, 
 the heavens were wrapt in gloom, through which, 
 ever and anon, the lightning flashed vividly. 
 Quickly the thunderstorm was upon us, the rain 
 descended first in large heavy drops, then in a 
 perfect deluge ; the sky seemed on fire with elec 
 tric flashes, darting hither and thither like fiery, 
 flying serpents. In vain the coachee whipped up 
 his wearied horses and made their very bones to 
 rattle, striving to gain shelter from the pitiless 
 storm. Before protection could be gained we were 
 all drenched to the epidermis ; even those within 
 did not escape, for the old stage leaked like a 
 sieve and let in the flood at every part. (My 
 wife declared afterwards that she had read that in 
 the days of Henry II., of France, there were 
 three, and only three, coaches in existence, one 
 belonging to Catherine de Medicis, another to the 
 fair, but frail, Diana of Poictiers, and the third 
 to Rend de Laval, a noble seigneur, and that she 
 verily believed that this was the one owned by, 
 the fat old Rend, so weak, so frail, so rickety, 
 was the old antediluvian monster ; in fact, she 
 remarked, there was nothing strong about the en 
 tire concern except the smell !) 
 
 But, after all, it was only a thunderstorm, and 
 
DINING, RAINING, LOSING, AND ENDING. 81 
 
 ere very long its fury was overpassed, the sun 
 emerged from behind the murky clouds, and we 
 all steamed away beneath its fiery rays like small 
 portable steam-engines. Far worse, however, than 
 being thoroughly damped ourselves, the heavy 
 down-pour hud penetrated our trunks and bags, 
 playing the mischief with the things therein, for 
 the carrier had not provided tarpaulins, or cart 
 clothes and such necessary coverings to protect 
 the baggage from the rain, as he was bound to 
 do. 1 The thoughts of the damages which I might 
 recover, alone kept me from pouring forth my ire 
 upon the coachman s devoted head. 
 
 Of course, proprietors of stage-coaches, 2 or mail- 
 coaches, 8 who hold themselves out as carriers of 
 goods, as well as of passengers, are liable as com 
 mon carriers, and responsible at common law for 
 all damage and loss to goods during the carriage 
 from what cause soever arising, save only the act 
 of God ; and this liability extends to the luggage 
 of passengers, as well as to the goods of strangers, 
 although no specific charge be made for the lug 
 gage. 4 In England (by the Railway Clauses Act) 
 railways, stage-coach proprietors, and other com 
 mon carriers of passengers, their baggage and 
 
 1 Webb v. Page, 6 M. & G. 204 ; Walker v. Jackson, 10 M. & W. 163 ; 
 Philleo v. Sandford, 17 Texas, 227. 
 
 2 Clark v. Gray, 4 Esp. 177 ; Lovett v. Hobbs, 2 Shower, 127 ; Ilutton v. 
 Bolton, 1 II. Bla. 299 n. ; Dwight v. Brewster, 1 Pickering (Mass.), 50; Jones v 
 Voorhees, 10 Ohio, 145. 
 
 s White r. Bolton, Peake, N. P. 113. 
 * Robinson v. Dunmore, 2 B. & P. 416. 
 W. &R. OFT. 6 
 
82 DINING, RAINING, LOSING, AND ENDING. 
 
 freight, are put upon precisely the same ground, 
 both as to liability and as to any protection, priv 
 ilege or exemption ; and the same rule obtains 
 in the great republic, except, perhaps, that inas 
 much as transportation by rail is infinitely more 
 perilous, a proportionate degree of watchfulness 
 is demanded of carriers thereby. Care and dili 
 gence are relative terms, and the degree of care 
 and watchfulness is to be increased in proportion 
 to the hazard of the business. 1 
 
 The thorough damping which he had received 
 seemed to have had a mollifying effect upon our 
 knight of the reins, and when I ventured to ad 
 dress him on the subject of his master s liability 
 for loss or damage to luggage, I found him quite 
 thawed out, in fact, communicative. 
 
 " Wai," said he, "I knows summat about that; 
 but I rather guess you d find yourself mistook if 
 you thought him liable for all losses, and put a lot 
 of money in your trunk, and did n t tell on it, and 
 had it lost." 
 
 " Why," queried I, " what about that ? " 
 
 " Not much, only this : a chap one time thought 
 so as how he d come a sharp dodge on a coachman, 
 so he just put $11,250 in his old trunk and said 
 nothing about it ; and when they got to their 
 journey s end the box was nowheres ; the man 
 tried to make the owner of the stage pay, but 
 the judge decided he could not." 
 
 i Commonwealth c. Power, 7 Met. 601 ; Jencks t>. Coleman, 2 Sumner, 
 221. 
 
DINING, RAINING, LOSING, AND ENDING. 83 
 
 "Who told you all that?" 
 
 " Wai, stranger, I heerd it in rather a round 
 about way ; my master told me, another man told 
 him, and an angel told the other man." 1 
 
 "Ah, indeed ! " I exclaimed, " that is undoubted 
 authority." 
 
 " Another time there was a long fellow put a 
 <50 note in his bag among his old duds. In get 
 ting on the stage he gave his bag to the driver, 
 who lost it ; he sued the master to court, but the 
 jury only paid him for his old clothes." 2 
 
 " There must have been some stage-coachman 
 on that jury," I said. 
 
 " Like enough ; there s a deal of them scattered 
 around every civilized country." 
 
 " I suppose you know," I added, " that if you 
 were to carry parcels for your own particular 
 profit, your master would not be liable for the 
 loss of them, 3 unless, indeed, he paid you less 
 wages, because of the opportunity thus afforded 
 you of making small sums." 4 
 
 "I guess there s no chance of my makin a 
 fortun , along this ere road that ere way. Folks 
 think I ought to carry their traps for nothing. 
 Look ye here, mister, how would it be sposing a 
 man took his portmantee with him, and kept his 
 )wn eye on til it, and it was lost after all." 
 
 1 Angell on Garners, 262. 
 
 * Miles v. Cotfcle, 4 M. & P. 630 ; 6 Bing. 743 ; and on this point see chapter 8. 
 
 3 Butter v. Basing, 2 C. & P. 614. 
 
 4 Dwight v. Brewster, 1 Pick. (Mass.), 50. 
 
84 DINING, RAINING, LOSING, AND ENDING. 
 
 " Oh, it s clear the owner of the coach would be 
 liable. 1 But if a gentleman keep, for instance, his 
 overcoat wholly in his own custody and possession, 
 and does not actually deliver it to the carrier, the 
 latter cannot reasonably be held liable for the loss 2 
 if it disappears." 
 
 (P. S. and N. B. Any person or persons desirous 
 of becoming thoroughly posted upon the all im 
 portant question of the liability of carriers for the 
 loss of baggage, will find it to their advantage to 
 consult chapter fifteen of this my book.) 
 
 " I say, mister, had I better take a short cut 
 over that ere bridge, which is so rotten that I cal- 
 kerlate it will go down mighty soon with a tre 
 mendous whack into the water below, or go away 
 round a couple of miles to the stone bridge ? " 
 queried the driver. 
 
 " Well," I replied, " I think you had better go 
 round, for the law saith, if a common carrier 
 which you decidedly are in every sense of the word 
 goes by ways that be dangerous, or drive by 
 night, or in other inconvenient times, or if he 
 overcharge a horse, whereby he falleth into water 
 or otherwise, so that the stuff is hurt or impaired, 
 then lie shall be charged for his misdemeanor." 3 
 
 "But why does not the corporation repair the 
 bridge ? " I added. 
 
 " Oh, they don t own it ; old Squire Squaretoes 
 
 1 Robinson v. Dunmore, 2 B. & P. 419 ; Brooke v. Pickwick, 4 Bing. 218. 
 
 2 Tower v. Utica & Sch. Rw., 7 Hill, 47. 
 
 3 Doctor & Stud., Dial. 2d, p. 224. 
 
DINING, RAINING, LOSING, AND ENDING. 85 
 
 built it and owns it ; but he lets folks cross it if 
 they choose," replied the man. 
 
 " Then it is clear we would have no one to sue 
 if any accident happened through its defective 
 state." ! 
 
 I trust that my readers (if I have any) will 
 understand that a town is not liable for injuries 
 caused by a bridge being out of repair, if it has 
 become so, suddenly and unexpectedly, by reason 
 of a freshet, and sufficient time has not elapsed to 
 enable the authorities to repair it, or to guard 
 travellers against the danger; 2 but if the chairman 
 of the board of supervisors has had notice of the 
 defect, and no proper precautions are taken to 
 guard against accidents, the town will be held 
 liable for negligence. 3 
 
 Quickly now we drove along the bank of a lit 
 tle babbling, bubbling river, which " like a silver 
 thread with sunsets strung upon it thick like 
 pearls" wound in and out, and round about, doub 
 ling the distance we had to travel ; but I was 
 quite content and sought not to descend from my 
 high perch, for the breeze was 
 
 " Sweet as Sabaean odors from the shores 
 Of Araby the blest ; 
 
 and the woods near by had many verdurous 
 glooms and winding mossy ways, to charm the 
 eye, and I had ever loved to gaze upon 
 
 1 Gautret v. Egerton, L. R. 2 C. P. 371 ; State v. Seawell, 3 Hawks, 193. 
 
 2 Jaquish v. Ithaca, 36 Wis. 108 ; Ward v. Jefferson, 24 Wis. 342. 
 8 Ibid. 
 
86 DINING, RAINING, LOSING, AND ENDING. 
 
 "groups of lovely elm-trees bending 
 Languidly their leaf-crowned heads, 
 Like youthful maids, when sleep descending, 
 Warns them to their silken beds. 1 
 
 On and on we clattered along the rough and 
 stony road, rattling and jolting, till a loud and 
 sharp " Toot-toot-toot," with a long clear flourish 
 " that warbled away in an acoustic ringlet" from 
 the driver s horn, announced the fact that that 
 day s work was done ; that our journey was com 
 plete, and we were safe in the little village of Ayr. 
 
 As our journey beyond this point was upon the 
 trackless deep, I will here say nothing about it, 
 save that we were while on board the steamboats 
 neither blown up nor drowned. 
 
STATIONS AND STARTING. 87 
 
 CHAPTER VII. 
 
 STATIONS AND STARTING. 
 
 Meditations on Crossings. Bell or Whistle. People on Track. 
 Access to Stations. Slippery Ice. Checks on Trunks. Notice 
 of Arrivals and Departures. Trains late as usual. Must keep 
 Time. Damages, Damages. Proof. III fared Welfare. Wait- 
 ing- rooms not Smoke-houses. Charge of the Iron Horse. Tripped 
 
 up. 
 
 IN course of time I had to go off on business, 
 and, notwithstanding the unhappy demise of my 
 wife s step-mother s brother s wife s mother s aunt, 
 I resolved to patronize the cars, and having long 
 before settled the insurance question to my own 
 satisfaction, I purchased both a railway and an ac 
 cident ticket, and as the proper hour for the de 
 parture of my train approached, 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 
 
88 STATIONS AND STARTING. 
 
 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 ; l 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?" tile answer 
 that came was, " I fancy not, for primd facie, a 
 foot-passenger crossing a railway is bound to look 
 out for his own safety ; 2 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." 3 
 There is, it appears, no general duty devolving 
 upon railway companies to place watchmen at such 
 places, but it depends upon the particular circum 
 stances of each individual case as to whether the 
 omission of such a precaution amounts to negli 
 gence or not. 4 If, however, one is employed, his 
 neglect of duty will make the company liable. 5 
 
 But then this crossing, I thought, is peculiarly 
 dangerous, the line being hid as it is ? In such a 
 case the mere occurrence of an accident to one 
 crossing will be evidence of negligence. 6 If a 
 railroad unnecessarily crosses a highway in such a 
 manner and place that travellers can neither see 
 
 1 Galena & Chi- Rw. i-. Loomis, 13 111. 548. 
 
 2 Skelton v, L. & N. W. Rw., L. R , 2 C. P. 631 ; Boggs i-. Great Western 
 Rw., 23 U. C. C. P. 573. 
 
 3 Williams v. Richards, 3 C. & K. 82; Cotton *. Wood, 8 C. B. (N. S.), 571. 
 < Stubley v. L. & N. W. Rw., L. R., 1 Ex. 13. 
 
 Kissengerv. N. Y., etc., Rw., 56 N. Y. 538. 
 
 6 Bilbee v. L. & B. Rw., 18 C. B. (N. S.), 584 ; see also, Stapley v. L. B. & 
 S. C. Rw., L. R.,lEx. 21. 
 
STATIONS AND STARTING. 89 
 
 nor hear an approaching train until too late to 
 save themselves ; or if a company erect a building 
 so as to shut off the view, they will be liable for 
 collisions, in the absence of negligence on the part 
 of the injured ones. 1 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 
 whistled, the man was injured and the company was 
 found guilty of negligence. 2 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 com 
 pany. 3 
 
 The omission to give the signals required by 
 statute, such as, ringing the bell or sounding the 
 whistle, constitutes a primd facie case of negli 
 gence ; still, to make the company liable for dam 
 ages, 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. 4 
 
 The public has a right to presume that if the 
 proper warnings are not given at a crossing, that 
 the speed of the train will be reduced ; if not, to 
 
 1 Mackay v. N. Y. C., 35 N. Y. 75 ; Richardson v. N. Y. C., 45 N. Y. 846. 
 
 2 James v. Gt W. Rw., L. R., 2 C. P. 634 n. ; see p. 63. 
 
 3 Barrett v. Midland Rw., 1 F. & F. 361. 
 
 * Galena, etc., Union Rw. v. Loomis, 13 111. 548; Wakefield v. C. & P. R. 
 Rw., 37 Vt. 330. 
 
90 STATIONS AND STARTING. 
 
 prevent an injured one getting damage it must be 
 proved that he was rash. The company will be 
 liable if he kept a proper lookout, though he was 
 incautious in going on the track. 1 
 
 Every one attempting to cross a railroad should 
 do it with his eyes open. He should listen for the 
 signals, notice all the signs that may be put up as 
 warnings, and look up and down the road. 2 If, 
 however, he is driving across, it does not appear 
 that he is bound to get out of his carriage, or even 
 stop for the purpose of listening. 3 If, by the use 
 of one s optics, the train could have been perceived, 
 it is presumed in case of a collision, that the man 
 hurt did not look, or did not heed, and so under 
 ordinary circumstances, the company will not be 
 liable. 4 Contributory negligence on the part of 
 the afflicted excuses the railroad, whether the 
 proper signals have been given or not, or whether 
 the company is guilty of any other negligence or 
 not. 5 
 
 When a carriage-way crossed a line on the level, 
 and the gates on the down side of the line being 
 open, young Wanless, with some other boys, en 
 tered on the railway at the time when a train on 
 the up side was passing, intending to cross as soon 
 as the train had passed ; meanwhile another train, 
 
 1 B. & 0. Rw. v. Trainor, 33 Md. 542 ; Cliff v. Midland Rw., L. R., 5 Q. B. 
 258. 
 
 2 Wharton on Neg. 382 and notes, 
 s Davis v. N. Y. C., 47 N. Y. 400. 
 
 * Wharton, 382. 
 
 o Ernst v. Hudson R Rw., 39 N. Y. 61. 
 
STATIONS AND STARTING. 
 
 01 
 
 on the down side, which he could have seen if he 
 had looked, knocked him down and injured him. 
 The Court of Queen s Bench and the House of 
 Lords both held that the company were guilty of 
 negligence ; l and that having the gate open was an 
 intimation to the public that the line was clear. 
 However, in New York State it was decided that 
 a similar breach of duty only gave a right to the 
 penalty affixed thereto, and Avas not evidence of 
 negligence : 2 and that one must keep a lookout, 
 even though no danger signal is given. 3 On the 
 other hand, other American cases hold that one 
 has a right to expect a company to do its duty, 
 and give the proper notices and warnings. 4 
 
 When on the point of crossing a track about 
 the time a train is due one should not bundle up 
 his head, so as to impair the sense of hearing, and 
 then go straight ahead without looking out for the 
 cars. If a man does so and is made mince-meat 
 of, he has only himself to blame, even though 
 neither bell nor whistle sounded. 5 One must not 
 even hold his hat on with his hand on a rainy, 
 blowy, stormy, snowy night, if he is thereby pre 
 vented seeing an approaching train. 6 
 
 1 Wanless v. N. E. Rw., L. R., 6 Q. B. 481 ; S. C , L. R., 7 E. & I. App. 12 ; 
 Stapley v. London & B. Rw., L. R., 1 Ex. 21. 
 
 2 Brown . Buffalo, etc , 22 N. Y. 191. 
 
 3 Havens v. Erie Rw., 41 N. Y. 296. 
 
 4 Hart v. Erie Rw., 3 Alb. L. J. 312 ; Tabor v. Mo. Vail. Rw., 46 Mo. 858 ; 
 S. C., 2 Am. Rep. 270. 
 
 5 Steves r. Oswego & S. Rw., 18 N. Y. 422; Wilds v. Hudson R. Rw.. 24 
 N. Y. 430 ; but see Chaffee v. Boston & L. Rw., 104 Mass. 108. 
 
 6 Butterfield v. Western Rw., 10 Allen, 532; Miller v Q. T. R., 25 C. P. 
 (Ont.), 389. 
 
STATIONS AND STARTING. 
 
 A railway company is not bound to use the 
 same amount of care towards strangers who vol 
 untarily and wilfully go on their track as they 
 owe towards their passengers. This, Mr. Brand 
 found out after he had his legs cut off while walk 
 ing on the track through the city. 1 If one is un 
 lawfully on the track, or contributes to the injury 
 by his own carelessness or negligence, yet if the 
 injury could have been avoided by the company s 
 servants using ordinary care, the railway is liable 
 for damages. 2 An engine driver, however, is not 
 bound to slacken speed when he sees before him, 
 on the track, one whom he may reasonably sup 
 pose can take care of himself, until he sees that 
 otherwise the man, woman, or child will be run 
 over ; but it is his duty to check the train so soon 
 as he spies a very young child, or apparently help 
 less person in the way ; if he does not do so and a 
 collision ensues, the company will be liable for the 
 consequences. 3 
 
 A company is bound so to lay their line at a 
 crossing that no injury will be done by reason of 
 the rails being above the level of the road. 4 
 
 Near the station and forming one way of access 
 thereto is a bridge, said to be in a dangerous state, 
 
 1 Brand t>. Troy & S. Rw., 8 Barb. 368; Anderson v. N. Rw., 25 C. P. 
 (Ont.), 301. 
 
 2 Brown v. Hannibal & St. J., etc., 50 Mo. 461 ; B. & 0. Rw. v. Trainer, 
 33 Md. 542. 
 
 s Lake Shore Rw. v. Miller, 25 Mich. 277 ; Telfer v, N. Rw., 30 N. J. 188 ; 
 St. Louis, etc., v. Manly, 58 111. 300. 
 
 * Oliver v. N. E. Rw., L. R., 9 Q. B. 409 ; Thompson v. G. W. R., 24 C. P. 
 (Ont.), 429. 
 
STATIONS AND STARTING 93 
 
 and across this I saw several persons hurrying, 
 but I preferred to go round by a longer way, for 
 although it has been decided that a company is 
 liable for the death of a passenger through the 
 faulty construction of a bridge erected by them 
 for the more convenient access to the station, 
 when there is a safe one about one hundred yards 
 further off which the unfortunate deceased might 
 have used, 1 still I considered discretion the better 
 part of valor and chose keeping sound bones in a 
 whole skin to my wife enjoying plenty and pros 
 perity out of my life insurances. Besides, I recol 
 lected that Mr. Justice Clesby had once said, that 
 where a passenger having full knowledge of the 
 fact, still preferred using a dangerous way and in 
 consequence was injured, it would seem that such 
 a foolish body would have no ground of complaint, 
 on the principle of the old maxim volenti nonfit in- 
 juria. 2 What risks men will run to save a few min 
 utes or a few steps ; verily well saith the poet, 
 
 " Of all the creatures that fly in the air 
 Swim in the sea, or tread earth so fair, 
 From Paris and Rome to Peru and Japan, 
 The most foolish beast, as I think, is man." 
 
 On entering the station-yard I found engines 
 puffing and snorting, backing and switching on 
 every side, and really it was at considerable danger 
 of my journey being summarily put an end to ere 
 well commenced, that I made my way to the plat- 
 
 1 Longmore v. G. W. Rw., 19 C. B. (N. S.) 183. 
 
 2 Bridges v. N. London, etc., L. R., 6 Q. B. 377. 
 
94 STATIONS AND STARTING. 
 
 form. This rather annoyed me and ruffled the 
 habitual serenity of my temper (and the serenity 
 of the most serene would be tried by a locomotive 
 spirting and squirting out a .jet of steam at one s 
 nether garments), for it is the duty of railway 
 companies to take all reasonable care to keep their 
 premises in such a state that those whom they in 
 vite there (and they invite all who may desire to 
 be carried to any place whither the line runs) 
 will not be unduly exposed to danger. 1 But they 
 need not go so far as to put a hand-rail upon a 
 stairway for unsteady folks to steady themselves 
 with, where the stair is protected on either side 
 by walls ; and they may put brass on the steps 
 instead of lead, although it is more slippery. 2 
 
 I had scarcely stepped on to the platform when 
 one foot slipped from under me, and down with a 
 whack I descended upon the back of my head; 
 my carpet-bag, too, fell with a crash, telling of 
 ruin to some valuable therein contained. Up rose 
 I in wrath and found that a strip of ice had been 
 the cause of my discomfiture, and I registered an 
 oath on high that the company should answer to 
 me in solid gold for the damages I had sustained ; 
 for I knew of one Shepherd, who having fallen on 
 a slippery place, while he tramped up and down 
 the platform waiting for a train, recovered a 
 goodly sum from the company ; and Martin, B., 
 
 1 Welfare v. London & Brighton Kw., L. R., 4 Q. B. 693 ; Stott v. Qt. T. R., 
 24 C. P. (Ont.), 347. 
 
 2 Grafter v. Metropolitan Rw., L. R., 1 C. P. 300. 
 
STATIONS AND STARTING. 95 
 
 said, railway servants ought to be alert during 
 cold weather to see whether there is ice upon the 
 platform, and to remove it, or make it safe by 
 sanding it, or otherwise, if it is there. 1 
 
 On I strode in ire for I saw some girls snick 
 ering at me to where the baggage-master was 
 checking the luggage. 
 
 " Check this," I exclaimed. 
 
 " Take it into the car with you," he replied. 
 
 " I won t ; you must check it ; there s a handle," 
 I returned. 
 
 " I won t ; handle be hanged ; you must take 
 it," he retorted. 
 
 " All right," I answered, inwardly resolving 
 that as a check had been refused me when de 
 manded, the company should pay me the penalty 
 of eight dollars, as well as the costs of the action 
 which I should bring against them for it, and that 
 I would insist upon the conductor in charge of .the 
 train refunding me the fare that I had paid for 
 my ticket. 2 I was sorry now that I had bought 
 the ticket in advance, for under the circumstances 
 they would have had no right to collect or receive 
 from me any toll or fare. 2 
 
 I was determined to teach railway companies 
 their duties, and baggage-masters are far too fond 
 of refusing to check small parcels or bags ; and at 
 way stations, in their wisdom, even decline some- 
 
 1 Shepperd v. Midland Rw. Co., 20 W. R. 705 ; but see ante, p. 9. 
 
 2 Railway Act, 1868, 20, ss. 5 and 6 (Can.). 
 
96 STATIONS AND STARTING. 
 
 times to check large trunks, although the law of 
 this Canada of ours says, " Checks shall be affixed 
 by an agent or servant to every parcel of baggage 
 having a handle, loop or fixture of any kind there 
 upon (though what may be included in the latter 
 term goodness only knows), and a duplicate shall 
 be given to the passenger delivering the same." l 
 
 It was not many minutes before I found cause 
 of action number three against the respectable 
 railway company to whose tender mercies I was 
 about to commit my precious self. The law di 
 rects that " the trains shall be started and run 
 at regular hours to be fixed by public notice, 1 2 
 but most locomotives their drivers and conduc 
 tors treat that clause with a contempt truly phil 
 osophical. The train by which I desired to em 
 bark was overdue for half an hour, according to 
 the time-table which hung mockingly on the wall, 
 so I looked about me to see if there had been 
 " put up on the outside of the station-house over 
 the platform of the station in some conspicuous 
 place, a written or printed notice signed by the 
 station-master, stating to the best of his knowledge 
 and belief the time when such over-due train might 
 be expected to reach the station," as it was the 
 duty of the company to do. Of course, no such 
 notice was visible, such enactments being too often 
 deemed effete from the very day they appear on 
 
 1 Railway Act, 1868, 20, s. 5. 
 
 2 Ibid. 20, s. 2. 
 
STATIONS AND STARTING. 97 
 
 the statute book, so I still further comforted and 
 consoled my wounded feelings by the thought that 
 for this neglect or omission they were liable to an 
 action at my suit, in which full costs might be re 
 covered 1 (the latter was an object of importance 
 just now). 
 
 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 
 question, and especially one involving a small 
 amount, and that as a result of this railways have 
 been virtually exempt from the penalties attach 
 ing to many breaches of duty and of contract which 
 they are daily committing; but I determined to 
 sacrifice myself for the good of my ft-llows. 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 railway com 
 pany 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 through negligence no 
 train is prepared or arrives, the companv is re 
 sponsible in damages to all persons who have acted 
 upon the faith of the representation, and have been 
 deceived and put to expense, and have sustained 
 
 1 34 Viet. c. 43, 6 (Can.). 
 W. &R. OFT. 7 
 
98 STATIONS AND STARTING. 
 
 damage thereby ; l but if they give proper notice 
 they will not be liable for any necessary delay. 2 
 A company announced that their trains would be 
 punctual as far as possible ; though, they said, 
 they did not undertake that they would run ex 
 actly according to the time-tables, and that they 
 would not be liable for any loss or damage aris 
 ing from unpunctuality ; the court, however, held, 
 that a delay of twenty-seven minutes en route 
 between Liverpool and Leeds was evidence of 
 negligence or want of reasonable efforts to be 
 punctual. 3 A notice that a company will not be 
 responsible for deviations from the time-tables, 
 unless the detentions are caused by the wilful neg 
 lect of their employees, is practically invalid. 4 
 The company make a continuous representation 
 whilst they continue to hold out printed or writ 
 ten papers as being their time-tables, and they 
 thereby make a public profession and representation 
 that they will exercise their vocation of common 
 carriers, and dispatch 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 com 
 mon carriers, and are guilty of a fraudulent rep 
 resentation, which may be the foundation of an 
 action for deceit by any one who, relying on the 
 
 1 Addison on Torts, 3d cd. 447. 
 
 Redfield on Rail., vol. ii., p. 276. 
 
 Le Blanche v. L. & N. W. Bw., 34 L. T. R. 25. 
 
 * Becke v. Q. W. R., 18 Sol. J. 972. 
 
STATIONS AND STARTING. 99 
 
 representation, tenders himself or his goods for 
 conveyance at the appointed time, and finds there 
 is no train about to start. 1 
 
 Though neither time-table nor advertisement is 
 an actual warranty for the arrival and departure 
 of trains at the time named, still companies are 
 unquestionably liable for any want of punctuality 
 which they could have avoided by the use of due 
 care or skill ; nor can they plead any excuse, the 
 existence of which was known to them when the 
 tables were published. 2 And when there has been 
 a change of time, due care should be used in noti 
 fying the public. 3 
 
 I also ran the risk of missing 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 next 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 customers 
 at the appointed time [but this rule seems to be 
 almost equivalent to a denial of all beneficial re 
 dress in such cases. 4 ] The chief baron in giving 
 
 1 Denton v. G. N. Rw., 5 Ell. & Bl. 860 ; In re Oxlade, 1 C. B. (N. S.), 454 ; 
 Heirn v. McCaughan, 32 Miss. 17. 
 
 2 Gordon v. M. & L. Rw., 52 N. H. 596. 
 
 3 Sears v. Eastern Rw., 14 Allen, 433. 
 
 * Redfield on Railways, vol. ii., p 277 n. 
 
100 STATIONS AND STARTING. 
 
 judgment, stated that as a rule, generally in ac 
 tions upon contracts the plaintiff is entitled to 
 recover whatever damage naturally results from 
 the breach of the contract, but not damages for 
 the disappointment of mind occasioned by the 
 breach of contract. 1 When in consequence of the 
 company s negligence M. Le Blanche reached Leeds 
 too late for the Scarborough train, and he took 
 a special train whereby he reached Scarborough 
 an hour earlier than if he had waited for the next 
 regular train, the court considered that although 
 he had no special business at S., yet still he was 
 entitled to recover from the railroad authorities 
 the cost of the special train. But a man should 
 not take a special, hoping to have the expense re 
 couped him, unless it is a reasonable thing to do 
 under the circumstances. 2 In Manchester (Eng 
 land), a music teacher recovered against a railway 
 company five shillings which he had had to pay 
 for cab-hire, the train through delays having failed 
 to make certain connections. 3 If a party bound 
 to do a certain thing does not do so, the other 
 party may do it for him as reasonably and nearly 
 as may be, and charge him for the reasonable ex 
 penses incurred in doing so. A company cannot 
 escape damages for its failure to carry a passenger 
 
 1 Ilamlin v. G. N. R., 1 II. & N. 408, and as to damages for remote and col 
 lateral consequences, see Story v. N. Y. & H. Rw., 2 Selden, 85 ; Ilorner v. 
 Wood, 16 Barb. 386. 
 
 2 Le Blanche v. L. & N. W. R., 34 L. T. R. 26 ; reversed on Appeal, W. Notes, 
 May 27, 1876. 
 
 3 Becker v. L. & N. W. Rw., cited in 10 0. L. J. 311. 
 
STATIONS AND STARTING. 101 
 
 with sufficient dispatch by the fapjb ^lifti the .delay 
 was the wilful act of the co#d actor, in* charge ,of, 
 the train. 1 It must clearly appear -thai/ the data- 
 ages were sustained without any fault on the part 
 of the traveller, and in spite of his utmost efforts 
 to avoid them. 2 
 
 The mere production of a ticket, however, is 
 not sufficient evidence 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 consequence of delay in starting ; 
 the time-table must be produced to prove the con 
 tract. 3 And as I knew that to prove that the 
 table was issued by authority I would have to 
 show either that it was bought at one of the com 
 pany s stations, or at one of their recognized re 
 ceiving offices, or that it was posted up in some 
 office or place where the advertisements of the 
 company were usually placed, 4 I started off on a 
 tour of investigation to see if I could pick up -the 
 desired article, or evidence that would answer my 
 purpose, keeping in mind how ill fared my friend, 
 Mr. Welfare. He once innocently inquired of a 
 railway porter when the train would be in, and 
 being referred by the official to a time-table hang 
 ing upon the wall, he went to consult it ; while 
 
 1 Weed v. P. R. Rw., 17 N. Y. 362. 
 
 2 Benson v. New Jersey Rw. Co., 9 Bosw. 412. 
 
 8 Hurst v. Gt. Western Rw., 34 L. J. C. P. 265 ; Robinson v. The same, 35 
 L. J. C. P. 123. 
 4 Addison on Torts, p. 487. 
 
102 STATIONS AND STARTING. 
 
 doing so, down tumbled, through a hole in the 
 rtfoof> -a*, heavy: plank <ind a roll of zinc, and smote 
 Mr. Welfare on the neck, doing him grievous 
 bodily harm; glancing 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, as for aught that my friend showed at the 
 trial the man might have been the servant of a 
 contractor employed to mend the roof, or the mis 
 fortune might have been the result of a pure acci 
 dent. 1 So the sufferings of my friend served but 
 to point a moral Beware ! arid to adorn a vol 
 ume of reports. 
 
 But to return from this digression anent my 
 friend, to the topic on which I was musing. 
 Draper, 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 arrival 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. 2 
 
 While I was thus deeply ruminating, an old 
 friend appeared, a Q. C., of high standing, at 
 the bar of a neighboring city, and we went out 
 side to enjoy a chat and weed while waiting for 
 
 1 Welfare v. London & Brighton R\v. Co., L. R., 4 Q. B. 693. 
 
 2 Briggs v. Grand Trunk R\v. Co., 24 U. C. Q. B. 510, 516. 
 
STATIONS AND STARTING. 103 
 
 the train. Seeing an elderly female turn up her 
 nose as a whiff of 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 wait 
 ing-room unfit for her occupation 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 ? " l 
 
 " No," I replied. 
 
 " He ruled that it is the duty of railway passen 
 ger 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." 
 
 u Still I think it is pushing the doctrine of the 
 liability of companies rather far." 
 
 u Yes," I returned, " and rather in the teeth of 
 the dictum of Mr. Justice Hannan, in Siner v. 
 Great Western, 2 where he said he thought that 
 
 i McDonald et ux. v. Chicago & N. W. R. Co., 26 Towa, 124. 
 8 L. R., 3 Exch. 150. 
 
104 STATIONS AND STARTING. 
 
 juries took an exaggerated view of the duties of 
 railway companies ; that the companies have done 
 so much for the comfort and convenience of trav 
 ellers that it is now made the subject of complaint 
 if the highest degree of luxurious care is not at 
 tained 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 them 
 selves of the benefits of railway travellers, they 
 should make some allowances. Ah ! look at our 
 fair friend ! " 
 
 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 assurance 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. 1 
 
 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 : 
 
 1 Caswell v. Boston & Worcester Rw., 98 Mass. 194. 
 
STATIONS AND STARTING. 105 
 
 " Hold ! be not rash ! If you jump, instead of 
 going down by the steps, and are hurt, you can 
 never make the company pay for the plasters and 
 the salves ; l 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 re 
 freshment room. The crowd pushed my chum 
 against a portable weighing-machine, and, catch 
 ing 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 pro 
 jected above the level of the platform six inches 
 and was unfenced ; 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 neg 
 ligence, the machine being where it might have 
 been seen, and the accident not being one which 
 could have been reasonably anticipated. 2 An ex 
 actly similar case. Ho ! ho ! ho ! 
 
 " I wish the whole platform had given way 
 with the weight of that mob, and then there 
 would without doubt have been evidence of neg 
 ligence. Besides I might have had the pleasure 
 of seeing you break your leg ; " testily replied 
 the Q. C. And he added, and more correctly 
 
 1 Forsyth v. Boston & Alb. Rw., 103 Mass. 510. 
 
 2 Cormnan v. Eastern Counties Rw., 4 II. & N. 781 ; see also Blackman . 
 London, B., & S. C. Rw., 17 W. R. 769. 
 
106 STATIONS AND STARTING. 
 
 than an angry man .usually speaks, " A com 
 pany should not allow their platform to be over 
 crowded, and they ought to have adequate means 
 for protecting their passengers in the event of an 
 unusual influx of travellers. 1 .They are bound to 
 see that the number of porters at each station is 
 adequate for the safety of passengers." 2 
 
 " Ah ! my dear sir, one must be careful and 
 walk circumspectly about a station. You know 
 where a man fell, seriously hurting himself, on a 
 staircase down which some forty thousand people 
 had passed every month without an accident, the 
 court held that there was no evidence of neg 
 ligence on the part of the company to go to a 
 jury, although the brass covering on the step had 
 been worn smooth, and said that the mere fact 
 of a man having fallen and hurt himself is not 
 sufficient to charge the company with negligence 
 in the construction of their station ; and the court 
 is in an especial manner bound to see that the 
 evidence submitted to the jury in order to estab 
 lish negligence, is sufficient and proper to go to 
 them. " 3 
 
 1 Hogan v. S. E. Rw., 28 L. T. (N. S.), 271. 
 
 2 Jackson r. Metropolitan Ew. L. R. 10 C. P. 49. 
 
 3 Grafter v. Metropolitan Rw. Co., L. R., 1 C. P. 300. Where on the platform 
 there were two doors in close proximity to each other, the one for necessary 
 purposes, had painted over it the words " For gentlemen," the other had over 
 it " Lamp room. r The plaintiff having occasion to go to the former, inquired 
 its whereabouts and was directed to it : by mistake he opened the door of the 
 lamp room, fell down some stairs, and was injured : Held, that in the absence 
 of evidence that the place was more than ordinarily dangerous, a nonsuit was 
 right. Toomey . London B. & S. C., 3 C. B. (N. S.), 146. 
 
TICKETS. 107 
 
 CHAPTER VIII. 
 TICKETS. 
 
 Man and Wife double as to Baggage. Money in Trunk. Authority 
 of American 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. 
 
 JUST as we were starting, I overheard an al 
 tercation between the baggage-man and a woman 
 of a rather masculine appearance, " with angular 
 outlines and plain surface, hair like the fibrous 
 covering of a cocoanut in gloss and suppleness 
 as well as color, and a voice at once thin and 
 strenuous acidulous enough to produce efferves 
 cence with alkalies, and stridulous enough to sing 
 duets with the katydids." He was asserting that 
 she had too much baggage and that she must pay 
 freight ; the woman demurred to this, and pro 
 tested that as she and her husband were travelling 
 together they were entitled to a double quantity 
 of luggage. In this she was clearly right, as, 
 though the law considers that a man and a woman 
 joined together in the bonds of wedlock are one, 
 still as respects baggage they are two, 1 or half 
 a dozen, if one may judge from Saratoga trunks. 
 
 i Great Northern Rw. v. Shepherd, 8 Ex. 30. 
 
108 TICKETS. 
 
 The disputants moved off and I did not hear the 
 functionary s decision. 
 
 As my companion opened his pocket-book to put 
 in his checks, I noticed that he had nothing therein 
 except a few cents, so I remarked jokingly : 
 
 " You don t appear to have much of the need 
 ful about you." 
 
 He replied, " Pshaw ! I am not such a goose 
 as to carry money in my pocket to afford the 
 light-fingered gentry an opportunity of enriching 
 themselves at my expense." 
 
 " But how do you manage to travel without mon 
 ey ? I should like to learn the secret," I said. 
 " So should I. I carry my cash in my trunk." 
 " In your trunk ! Suppose you lose it ? " 
 " Well, the company s liable," he replied. 
 " Shouldn t think so," I said. 
 :t But I am sure of it. It has been held that 
 common carriers of passengers are responsible for 
 money bond fide included in the baggage of a pas 
 senger, for travelling purposes and personal use, 
 to an amount not exceeding what a prudent man 
 like myself for instance would deem proper 
 and necessary for the purpose. 1 But they are not 
 responsible for money beyond such an amount, or 
 intended for other purposes, unless, of course, the 
 loss is occasioned by the gross negligence of the 
 carriers or their servants." 2 
 
 1 Jordan v. Fall River Rvv., 5 Gush. 69. 
 
 2 Orange County Bank v. Brown, 9 Wend. 85 ; Weed v. Saratoga & Sen. 
 Rw., 19 Wend. 534 ; Duffy i: Thompson, 4 E. D. Smith, 178. 
 
TICKETS. 
 
 109 
 
 " Well, I don t think you are a prudent man ; 
 besides, I fancy that s only an American author 
 ity," I remarked. 
 
 " Only an American authority ! Suppose it is, it 
 is not to be despised. Brain well, B., once said, 
 that although the American authorities are not 
 indeed binding upon us, still they are entitled to 
 respect as the opinions of professors of English 
 law, and entitled to respect according to the posi 
 tion of those professors and the reasons they give 
 for their opinions, 1 and Spragge, C., in a late case, 
 uses a similar expression." 2 
 
 " Of course I bow to the dictum of the learned 
 baron and chancellor. But doubtless there are 
 American cases the other way." 
 
 " Perhaps. In fact I know there are. 3 But 
 the great American authority, Judge Redfield, 
 thinks they are incorrect. 4 I can give you a Penn 
 sylvania case sustaining the Massachusetts one I 
 quoted ; and that is where the company in their 
 advertisements stated that passengers were pro 
 hibited from taking anything as baggage but wear 
 ing apparel, which would be at the risk of the 
 owner, and the trunk of a passenger contained 
 specie the extra weight beyond the usual allow 
 ance was paid for and the company s agent took 
 
 1 Osborn v. Gillett, L. R., 8 Ex. 92. 
 
 2 Deedes v. Graham, 20 Grant, 258, 270. 
 
 s Grant v. Newton, 1 E. D. Smith, 95 ; Chicago and Aurora Rw. v. Thomp- 
 eon, 19 111. 578. 
 * Red on Railways, vol. ii., pp. 56-58. 
 
110 
 
 TICKETS. 
 
 charge of it. The trunk wandered from the right 
 way, went astray and was lost ; and it was held 
 that it was not incumbent upon the passenger to 
 inform the carrier of the contents of the trunk un 
 less he was asked, and that it was immaterial 
 whether it was to be considered baggage or freight, 
 and that the company was liable for its loss through 
 the negligence or fraud of their agents." 1 
 
 " Well, such may be the law on the other side 
 of the line, but in this hyperborean Dominion of 
 ours I must say that I think it is somewhat differ 
 ent. I think that if the conduct of the traveller 
 has in any way contributed to the loss, he has no 
 ground at common law for demanding compensa 
 tion from the carrier. 2 Why, there is that old 
 case in Burrows where a prudent man like your 
 self hid ,100 stg. in an old nail-bag with some 
 hay, and gave it to a common carrier to be taken 
 to a banker ; the money was lost, but the carrier 
 was held not responsible, as the consignor had 
 neglected to tell him the exceeding value of the 
 bag and so prevented him taking due care of it. 3 
 Then there was the case of the guineas tied up 
 with a bit of string in a brown-paper parcel, 4 the 
 case of the sovereigns in the tea, 5 and the bank- 
 
 1 Camden & Amboy Rw. v. Baldauf, 16 Penn. St. (4 Harris), 67; see also 
 AV alker v Jackson, 10 M. & W. 161, as to not inquiring contents, and Crouch 
 c. L. & N. W. Rw., 14 C. B. 255, as to right to inquire. 
 
 2 Butterworth v. Brownlow, 34 L. J. C. P. 257. 
 
 3 Gibbon v. Paynton, 4 Burr. 2298. 
 
 4 Clay v. Willan, 1 H. B. 298. 
 
 s Bradley v. Waterhouse, 3 C. & P. 318. 
 
TICKETS. Ill 
 
 notes and gold in the school-boy s box, 1 in all of 
 .which the carriers were held relieved from liability. 
 Then in England there is the Carrier s Act (11 
 Geo. IV. and 1 Wm. IV., c. 68), applying to all 
 goods above <10." 2 
 
 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 sea 
 son one." 
 
 " That won t do, sir ; " said the man. " Hold 
 ers of annual tickets travelling on the line are 
 bound to produce their tickets as much as ordinary 
 passengers. 3 So take your choice, show your 
 ticket, pay your fare, or out you go." 4 
 
 u 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." 
 
 u 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, 
 
 1 Batson r. Donavan, 4 B. & Aid. 37. 
 
 2 By it no carrier is liable for loss or injury to any articles of great value in 
 small compass, or for money, bills, notes, jewelry, etc., above 10, unless 
 the value and nature of the property has been declared, and an increased 
 charge paid for it. 
 
 3 Woodard v. Eistern Counties Rw., 7 Jur. (N. S.), 971, 4 L. T. (N. S.), 
 336 ; Downs v. N. Y. & N. H. Rw., 36 Conn. 287. 
 
 * Railway Act (Can.) 1868, 20, s. 12. 
 
112 TICKETS. 
 
 or meddle or interfere with any passenger or his 
 baggage unless he has upon his hat or cap a badge 
 indicating his office ; 1 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." 2 
 
 Sold again ! " cried the wretched official, as he 
 lugged out from his coat pocket a small cap orna 
 mented with the word " Conductor" and showing 
 it to me he added, " You pretend to know a great 
 deal about the law, so perhaps you recollect that 
 the statute does not say that the cap or hat, with 
 the badge, is to be worn on the head. The law 
 in its wisdom assumed that officers of the company 
 would or must have caps or hats, and that they 
 would or must wear them, and wear them upon 
 the head, but it did not enact that they should do 
 so. 3 It never entered the wise noddles of the leg 
 islators at Ottawa that a man might own two caps, 
 a jolly fur one for use, and another little chap for 
 show." 
 
 "I acknowledge that I spoke with undue haste," 
 I meekly replied, feeling very crestfallen as I heard 
 audible smiles from several of the passengers. 
 
 But the remorseless railway man continued: "It 
 is plain by the law of Canada that a passenger is 
 not obliged to purchase a ticket before he enters 
 the company s car ; he may pay the conductor, if 
 
 1 The Railway Act 1868, 20. 
 
 2 Jennings v. Gt. N. Rw., L. R., 1 Q. B. 7. 
 
 3 Farewell v. G. T. R., 15 U. C. C. P. 427. 
 
TICKETS. 113 
 
 he pleases, the fare. But if the passenger pays 
 and receives a ticket, then he accepts the ticket 
 upon the condition that he will produce it and de 
 liver it up when required by some duly authorized 
 person, and in such case it is part of the contract : l 
 so, my dear sir," he said soothingly to the gentle 
 man, though to me his words were very swords, 
 " please produce your ticket, or pay a second time. 
 If you refuse, it will be too late for you to produce 
 it when I have given the signal to stop the train 
 to put you off." 2 
 
 One lady, who appeared to be of the suspicious 
 class, rather hesitated when the conductor requested 
 her to give up her ticket, and take his check in 
 stead, but my friend told her that it was one of 
 the rules of the line and that she was bound to 
 obey it. 3 
 
 When the conductor at length came up for my 
 ticket I quietly shewed it, and telling him of the 
 circumstances connected with the refusal of the 
 baggage-man to check my trunk, asked him to re 
 fund the fare; this, as I expected, he refused to do, 
 adding that my friend would do as a witness to 
 prove that I had made the demand in case I chose 
 to sue the company. 
 
 After this obnoxious individual had departed, 
 the Q. C. entered into a lengthy disquisition con 
 cerning railway tickets; he remarked that the 
 
 1 Duke v. Great Western Rw., 14 U. C. Q. B. 377. 
 
 2 State v. Thompson, 20 N. H. 250. 
 
 3 N. R. Rw. v. Paige, 22 Barb. 130. 
 W. &R. OFT. 8 
 
114 TICKETS. 
 
 words usually printed on them, " Good for this 
 day only, A. to B., created a contract on the part 
 of the company to convey the holder in one con 
 tinuous journey from A. to B., to be commenced 
 on the day of issuing the ticket, and that if a 
 passenger alighted at an intermediate station he 
 would forfeit all his rights under the ticket, and 
 could not claim to be carried on to his journey s 
 end in a subsequent train without paying a new 
 fare. 1 And the same rule holds good when the 
 ticket is marked " Good for this trip only ; " 2 and 
 when marked " Good for one passage on this day 
 only," it can only be used on the day of its date. 3 
 And where a ticket with the words, " Good for 
 this trip only," marked upon it, and unmutilated, 
 but a few days old, was presented, it was held 
 that it was primd facie evidence that the holder 
 had paid the regular fare, was entitled to be car 
 ried between the places named, and that the ticket 
 had never been used ; and also that such words 
 referred to no particular trip, or time, but only to 
 a continuous trip which might be made on the 
 date or any subsequent day. 4 Some companies 
 give their conductors power to allow passengers to 
 
 1 Briggs v. G. T. Rw., 24 U. C. Q. B., 510 ; Dietrich r. Pcnn. A. Rvv., 8 C. 
 L. ,1. (N. S.), 202 ; McClure v. Phil., Wil., & Bait. Rw., 34 Md. 532 ; Boice v. 
 Hudson R. Rw., 61 Barb. 611 ; Cunningham v. G. T. R., 11 L. C. Jur. 107; 
 Cheney v. Boston & M. Rw., 11 Met. 121 ; Elmore v. Sands, 54 N. Y. 512 
 
 2 Cheney v. Boston & Maine Rw., 11 Met. 121. 
 
 3 State v. Campbell, 3 Vroom, 309. 
 Pier v. Finch, 24 Barb. 514. 
 
TICKETS. 115 
 
 stop by the way by endorsing permission on the 
 ticket, 1 
 
 Companies have no intention of allowing a man 
 after he has travelled on a ticket for a time by one 
 train to leave it, and afterwards, at his august 
 pleasure, to resume his seat in another train at 
 some intervening part of the road ; 2 such proceed 
 ings would lead to endless confusion, trouble, and 
 annoyance. But it appears that when one has tick 
 ets, in the coupon form, over distinct lines, if they 
 contain no restrictions one may delay as long as 
 he likes at the different changing places, 8 unless he 
 voluntarily and negligently detaches the coupon. 4 
 
 One Craig bought a ticket in Buffalo marked 
 " Good only for twenty days from date," from 
 Buffalo to Detroit. After viewing the glories and 
 magnificence of thundering Niagara he took his 
 seat in the afternoon accommodation train of the 
 Great Western at the Suspension Bridge. This 
 train ran on to London, but Craig for his own 
 pleasure got out at St. Catherines and went up to 
 see the town. As the night express was going 
 through that fashionable watering-place he applied 
 to be allowed to travel by it on the ticket he held, 
 and on being refused sued the company. The 
 court, however, considered that the ticket bound 
 the company to carry the plaintiff on one contin- 
 
 1 McClurer.Pb.il., Wil., & Bait. Rw., 34 Md. 532. 
 
 2 State v. Overton, 4 Zabriskie, 438 : Cincinnati, Columbus, & C. Rw. v. 
 Bartram, 11 Ohio St. (U. S.), 457. 
 
 3 Brooke v. Grand Trunk Rw , 15 Mich. 332 
 * Hamilton v. N. Y. C., 51 N. Y. 101. 
 
116 TICKKTS. 
 
 uous journey from the Suspension Bridge to De 
 troit, giving him the option of taking any passen 
 ger train from the point of commencement, and if 
 that train did not go the whole distance, to con 
 vey him the residue of the journey in some other 
 train, the whole journey to be completed in twenty 
 days ; but that it did not give the holder the right 
 to stop at every or any intermediate station as 
 Mr. Craig contended. 1 If one has left the train in 
 which he started on his journey, the fact that he 
 has subsequently entered another train and trav 
 elled over a part of the remaining distance with 
 out being required to pay fare by the conductor 
 in charge, does not prejudice the company or re 
 new the contract. 2 But, said my friend, "I be 
 lieve that in this last case Agnew, J., guarded his 
 meaning by saying that there might be excep 
 tions to the general rule, where from misfortune 
 or accident, without his fault, the transit of the 
 passenger is interrupted, and he afterwards re 
 sumes his journey. If, however, one has forfeited 
 his right to be carried any further by his stopping 
 over, and yet the company continue to carry him, 
 they are bound to exercise reasonable care both 
 towards him and towards his baggage. 3 
 
 While I was listening intently to the words of 
 knowledge that were flowing like some mighty 
 river from the lips of the learned counsel, and 
 
 1 Craig v. Great Western Rw. Co., 24 U. C. Q. B. 504 ; Boston & Lowell Rw 
 v. Proctor, 1 Allen, 267 ; Shedd r. Troy & Boston Rw., 40 Vt. 88. 
 
 2 Dietrich v. Penn. A. Rw. Co., 8 0. L. J. (N. S.), 202. 
 
 3 Smith v. G. T. R., 35 Q. B. (Ont.), 547, 557. 
 
TICKETS. 117 
 
 wondering how and why he was so deeply read on 
 the topic, he suddenly stopped in his discourse, 
 pointed his finger 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 refuse 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 married woman, and for aught I 
 know a mother like yourself, was turned off the 
 train, or had to pay her fare a second time, I for 
 get which." 
 
 And before the lady had recovered from her 
 astonishment he dived into his red bag, produced 
 an extensive brief, and reads as foil ows : 
 
 " 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 conse 
 quences of his own want of care, than that a sys 
 tem (the system of issuing tickets as now in 
 vogue) should be rendered impracticable, which 
 seems necessary to the transaction of this impor- 
 
118 TICKETS. 
 
 tant branch of business. It is not for the sole 
 advantage, or 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 cannot 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 be 
 lieved on her word that she had paid her passage, 
 everbody else in a similar case must have the 
 same right to tell the same story and to be carried 
 through without paying the conductor, and with 
 out showing to him a proof that he had paid any 
 one." i 
 
 " 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 Massachusetts it was decided that 
 if carriers require passengers to buy tickets before 
 going on board, and to deliver them up on going 
 off, and the passenger loses his ticket, he must on 
 landing pay again ; 2 and in Curtis v. G. T. R. 
 Co., 3 that ornament of the Canadian bench, Draper, 
 
 1 Duke v. Great Western Rw. Co., 14 U. C. Q. B. 377. 
 
 2 Standish v. Narragansett St. Co., Ill Mass. 512. 
 s 12 U. C. C. P. 89. 
 
TICKETS. 
 
 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 de 
 clined 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 imagined 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 ex 
 plain. 
 
 " Oh, my dear madam, I meant no allusion to 
 Holy Writ ; I meant 31 Vic., chapter 68, commonly 
 called the Railway Act of 1868, which says at sec 
 tion 20 : " Any passenger refusing to pay the fare, 
 may by the conductor of the train and the servants 
 the company be put off the cars, with his lug 
 gage, at any usual stopping-place, or near any 
 dwelling-house, as the conductor elects, the con 
 ductor first stopping the train and using no un 
 necessary force." 
 
120 PRODUCING TICKETS, OR EVICTION. 
 
 CHAPTER IX. 
 
 PRODUCING TICKETS, OR EVICTION. 
 
 Carried past. Jumping off. Junctions. Cave Canem. Con 
 ductors refusing Change. Fighting in the Cars. Conduct of 
 Passengers. Ladies Car. Turned out in the Dark. No Seats. 
 Colored Persons. Tickets lost and found too late. Conduc 
 tor s Conduct. Damages for Wrongful Ejectment. Go quietl} . 
 
 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-sta 
 tion 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 sus 
 tain through his non-delivery at his destination. 
 And no doubt he would be successful, judging from 
 authorities, in recovering compensation for the in 
 convenience, loss of time, and the labor of travel 
 ling back to the haven where he would be, because 
 these are the direct consequences of the wrong 
 done him. 1 One Hobbs, and Betsy his wife, with 
 
 i Damont v. N. 0. & C. Rw., 9 Lou. Ann. 441 ; 111. C. Rw. v. Able, 69 111. 
 131 ; Rcdficld on Railways, vol. ii., 276. 
 
PRODUCING TICKETS, OK EVICTION. 121 
 
 two juveniles, once took a midnight train home 
 ward bound ; they were landed, however, at 
 another village, some miles off from their house ; 
 it was so late that they could neither get a con 
 veyance, nor yet accommodation at an inn, and 
 so all had to walk home through a drizzling 
 rain. Betsy took cold and was laid up for some 
 time, and the jury gave a verdict of X28 in their 
 favor ; .8 for the personal inconvenience, the 
 balance for the wife s illness and its consequences. 
 The court considered that Hobbs was entitled to 
 the <8, but not to the rest, the sickness being too 
 remote a consequence of the breach of contract. 1 
 This was in England, but in Mississippi where a 
 man, subject to rheumatism, got carried past his 
 station and had to walk back in the rain, where 
 upon his old enemy attacked him, it was decided 
 that he might get satisfaction out of the company. 2 
 The ticket must always be taken to be the con 
 tract between the passenger and the company for 
 the special purpose, and upon the terms which 
 are contained in it, 3 and when the company has 
 issued a ticket to a particular place they are bound 
 to stop there, and it is not enough merely to slacken 
 off steam ; 4 but, without special agreement, one 
 cannot insist upon a train stopping at a place 
 where they do not usually delay." 5 
 
 Hobbs v. L. & S. W. Rw., L. R., 10 Q. B. 111. 
 Mobile, etc., Rw. v. McArthur, 43 Miss. 180. 
 Farewell v. G. T. R., 15 U. C. C. P. 427. 
 Georgia Rw. v. McOurdy, 45 Ga. 288. 
 Chicago, etc., Rw. v. Randolph, 53 111. 510 
 
122 PRODUCING TICKETS, OR KVICTION. 
 
 Somebody not a Solomon asked the man 
 why he had not jumped off; he sensibly con 
 sidering he was in a passion replied : 
 
 "If I had been so foolhardy as to jump off 
 while the train was in motion, without doubt, 
 many a 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, 1 if, however, 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, 2 and I 
 would have done so if the train had been moving 
 slowly." 3 
 
 " But," said my legal luminary to me, sotto-voce 
 for he was afraid to draw attention to himself 
 again "if a passenger is induced to leap from a 
 car under the influence of a well-grounded fear of 
 a collision that would be fatal to limb or life, it 
 seems to be regarded as well settled that he may 
 recover against the carriers, even though he would 
 not have been hurt in the slightest degree, had lie 
 philosophically remained quiet." 4 
 
 Another man wanted the conductor to stop the 
 train because he had just discovered that he was 
 on the wrong track ; but this favor was refused, 
 
 1 Damont v. N. 0. & C. R\v. 9 Lou. Ann. 441; Lucas v. T. & N. B. B\v., 6 
 Gray, 64 ; but see 111. 0. R\v. v. Able, 59 111. 131. 
 
 2 Penn. Rw. r. Kilgore, 32 Penn. St. 292. 
 
 a Filer v. N. Y. C., 49 N. Y. 47 ; Loyd v. Hannibal, etc., R\v , 53 Mo. 509. 
 Ingalls t\ Bills, 9 Met. 1 : EldrHgc f. Long Is. Rw , iSandf. 89; Rw. 
 Aspell, 23 Penn. St. 147. 
 
PRODUCING TICKETS, OR EVICTION. 123 
 
 and the stupid fellow had to pay the full fare to 
 the next stopping-place. 1 
 
 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 pedestrianism, 
 the whole area being used as common ground by 
 the travellers on all three roads. While here, a 
 porter of the B. and E. Co., who was trundling a 
 track laden high with luggage, let a portmanteau 
 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. Rw. Co. on his way to 
 the terminus of the other line. (I afterwards 
 heard that the court held that the negligence be 
 ing an act of misfeasance by the servant of the 
 company in the course of his employment, the 
 maxim respondeat superior applied, and that the 
 company were liable ; but the judges doubted 
 whether the railway 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.) 2 
 
 As I was trudging along an ugly dog of the cur 
 
 1 Columbus, etc., Rw. v. Powell, 40 Ind. 37. 
 
 2 Tebbutt v. Bristol & Ex. R. Co., L. R.,6 Q B. 73 ; Stiles v Cardiff Steam 
 Nav. Co., 33 L. J. (N S.), Q. B. 310 
 
124 PRODUCING TICKETS, OR EVICTION. 
 
 tribe, with a noli me tangere expression of coun 
 tenance, dashed past me and rushed up to an inno 
 cent-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 something 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 ser 
 vants, 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." 1 
 
 Shortly after we were again under way a little 
 excitement was occasioned by an altercation be 
 tween the conductor and a man who had not fully 
 made up his mind (whether owing to the magni 
 tude 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 did not at once 
 pay the fare to some place or other he would have 
 
 i Smith v. Great Eastern Rw. , L. R , 2 C. P. 4 ; Barrett v. Maiden & Melrose 
 Rw., 3 Allen, 101. 
 
PRODUCING TICKETS, OR EVICTION. 125 
 
 the pleasure of walking there. The man still hes 
 itated, so the official pulled the check-rope, and 011 
 the stoppage of the train proceeded to eject the 
 traveller, who at the last moment tendered a $20 
 gold piece, and told the conductor to take the fare 
 to the next station (some $1.35). The latter de 
 clined now to receive the money, and put the man 
 off, leaving him alone in his glory, breathing 
 curses loud and deep. 1 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 rush 
 ing 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 receiv 
 ing 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. 2 
 
 I may as well inform the general public here, 
 that it is considered a reasonable condition for 
 railway companies to require passengers to procure 
 tickets before entering the train. 8 
 
 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 up- 
 
 1 People v. Jillson, 3 Parker C. C. 234. 
 
 2 Fulton v. Grand Trunk Rw., 17 U. C. Q. B. 433. 
 
 3 Hurst v. G. W. R., 19 C. B. (N. S.) 310. 
 
126 PRODUCING TICKETS, OR EVICTION. 
 
 rising 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 brutalizes as well 
 as cheers. The conductor 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 disturbers 
 of the peace, or else show by an earnest experi 
 ment that to do so was impossible. 1 If this latter 
 contingency were to happen, the conductor must 
 either discontinue the trip, or give the other pas 
 sengers an opportunity of leaving the cars ; other 
 wise the company will be responsible for the acts 
 of the rioters. 2 A conductor is not bound to wait 
 until some act of violence, profaneness, or other 
 misconduct has been committed before exercising 
 the power reposed in him of excluding or expelling 
 offenders. 3 Of course he is never bound to receive 
 passengers who will not conform to reasonable reg 
 ulations, or who from their behavior, state of 
 
 1 Pittsburgh, F. W., etc., Rw. v. Hinds, 7 Am. Reg. (N. S.) 14 ; .S. C., 53 Pa. 
 St. 612. 
 
 2 Redfield on Railways,vol. ii., p. 234. 
 
 3 Vinton v. Middlesex Rw., 11 Allen, 306. 
 
PRODUCING TICKETS, OR EVICTION. 127 
 
 health or person, are offensive to the other travel 
 lers. 1 
 
 Carriers of passengers are just as responsible for 
 the misconduct of their living freight as they are 
 for the mismanagement of the train. They must 
 exercise the utmost vigilance in maintaining order 
 that first of Heaven s laws and in guarding 
 passengers against violence ; or if not, they must 
 pay for the consequences. In one case, they had 
 to pay for the eye which a passenger lost, through 
 the quarrel of some drunken men. 2 In another, 
 for an arm broken in a shindy between votaries of 
 Bacchus. 3 All disorderly and indecent conduct is 
 to be repressed, and those sons of Belial who are 
 guilty thereof must be excommunicated, or ex 
 pelled, with Puritanic severity. 4 No one should 
 be permitted to travel in a car, who so demeans 
 himself as to endanger the safety, or interfere with 
 the reasonable comfort and convenience of other 
 passengers. But a wolf in sheep s clothing, a 
 whited sepulchre, a serpent disguised as an angel 
 of light, cannot be refused transport ; nor need a 
 conductor remove a too-far-gone dissenter from the 
 principles of J. B. Gough, if he is neither disorderly 
 nor offensive, nor if he remains quiet after admon 
 ition. If there is nothing in the condition, con 
 duct, appearance, or manner of a passenger, from 
 
 1 Hodges on Railways, 553; 6th edit., 585. 
 
 2 Pittsburgh, etc., v. Pillow, 7 Leg. Gaz. 13 ; Sup. Ct Pa. 
 
 s Pittsburgh, F. W., etc., Rw. v. Hinds, 7 Am. Reg. (N. S.) 14 ; S. C., 53 Pa. 
 St. 512. 
 * Flint v. Norwich, etc., Transportation Co., 34 Conn. 554. 
 
128 PRODUCING TICKETS, OR EVICTION. 
 
 which it can reasonably be inferred that he means 
 mischief, the company will not be liable for any 
 sudden attack he may make upon another pas 
 senger. 1 
 
 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. 2 In England, in ordi 
 nary cases, the ticket is issued subject to the con 
 dition that there is room in the train ; otherwise 
 those who are booked for the greatest distance 
 have the preference. 3 And a carriage must not be 
 suffered to become, or at least to continue over 
 crowded. 4 A considerable discussion has taken 
 place in some of the States of the Republic as to 
 how far railway companies can require colored 
 persons to sit in a particular place or car. The 
 right to do so was maintained by the Supreme 
 Court of Pennsylvania, 5 but other tribunals have 
 denied it. In Illinois it was decided that a com 
 pany could not from caprice, wantonness, or preju 
 dice, exclude a black woman from the ladies car 
 on account of her negro blood ; although it might 
 not be an unreasonable rule to require colored 
 persons to occupy seats in a separate car, furnished 
 as comfortably as the others. 6 
 
 Putnam v. Broadway, etc., Rw., 56 N. Y. 108. 
 Patteson, J., in Hawcroft v. G. N. R., 16 Jur. 196. 
 Hodges on Railways, 553. 
 
 Jackson v. Metropolitan Rw., L. R., 10 C. P. 49. 
 Westchester Rw. v. Miles, 55 Penn. St. 209. 
 Chicago & N. W. v. Williams, 55 111. 185. 
 
PRODUCING TICKETS, OR EVICTION. 129 
 
 The duties of common carriers include the doing 
 of everything calculated to render the transporta 
 tion most comfortable and least annoying to pas 
 sengers. 1 Their contract with their patrons is a 
 stipulation for respectful treatment, that decency 
 of demeanor which constitutes the charm of social 
 life, that attention which mitigates evils without 
 reluctance, and that promptitude which adminis 
 ters aid to distress. And in respect to women it 
 proceeds still further ; it includes an implied stip 
 ulation against general obscenity, that immodesty 
 of approach which borders on lasciviousness, and 
 against that wanton disregard of the feelings which 
 aggravates every evil. 2 
 
 As men of all sorts and conditions are so con 
 stantly travelling on trains, it is not only a reason 
 able regulation, but almost a humane duty, to 
 have on every train a ladies car for women and 
 men accompanying them, from which creatures 
 wearing exposed bifurcated garments, unblessed by 
 the companionship of the fair sex, and women of 
 offensive habits and character may be excluded, 
 so that all the good ladies maybe together as they 
 will be in heaven. 3 And even though persons not 
 admissible under the letter of the regulation are 
 occasionally permitted within the charmed pre 
 cincts the rule is still binding, and a male in trow- 
 sers has no right to enter without license or reason- 
 
 i Day v. Owen, 5 Mich. 520. 
 
 * Chamberlain v. Chandler, 3 Mason, 242 ; Nieto v. Clark, 1 Clifford, 145. 
 3 Bass v. C. & N. W. llw., 36 Wis. 450. 
 W. &R. OFT. 9 
 
130 PRODUCING TICKETS, OR EVICTION. 
 
 able excuse. If passengers excluded, by regula 
 tions, from the ladies car cannot find seats in the 
 regular coaches and there is room in the privi 
 leged place, they must not be kept standing ; but 
 it is the officers of the train who must determine 
 who shall, or who shall not, be allowed to enter 
 the presence of the ladies ; one has no right to 
 enter or attempt an entrance by force. If one be 
 ing unable to find a seat elsewhere go peaceably 
 into the ladies car without being forbidden, he 
 cannot then be removed by violence, unless a seat- 
 in another carriage is offered to him and he re 
 fuses to move. But under no circumstances will a 
 brakesman be authorized in forcibly ejecting such 
 an intruder by throwing him on to the platform 
 while the train is crossing a river. A man is not 
 bound to stay in a smoking-car. 1 
 
 It is said to have been held by some court, in a 
 case of Toland against The Hudsoji River Rail 
 way, 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 sus 
 tain an action against the company. But this 
 doctrine must be taken cum grano salis. If a 
 passenger is not accommodated as he should be, he 
 may decline any compromise, and sue the com 
 pany for refusing to carry him as their contract 
 by the ticket or their duty required ; and he 
 doubtless will succeed unless the company prove 
 
 i Bass v. Chicago & N. W. Rw., 36 Wis. 450. 
 
PRODUCING TICKETS, OR EVICTION. 131 
 
 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 accommoda 
 tion, and is put off because he declines going with 
 out, he may still sue. 1 So much by way of par 
 enthesis and digression. 
 
 " Well, what have you got to say about eject 
 ment ? " I asked my chum. 
 
 " Oh, that it is deuced hard that every dun 
 derhead of a conductor may put a poor wayfar 
 ing-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 sta 
 tion were visible, although no house was nigh, 
 yet the court held that the servants of the com 
 pany had not exceeded their authority. 2 The law 
 in some States is that one can only be put out 
 at a station." 3 
 
 " 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 obligation on the company ; at least so 
 it would appear from the authorities." 4 
 
 " What would be the consequences if a fellow 
 
 1 Redfield on Railways, vol. ii., p. 282 ; but see Davis v. Kansas City Rw., 63 
 Mo. 317. 
 
 2 Fulton v. G. T. R., 17 U. C. Q. B. 433. 
 
 8 Toledo, P., & VV. Rw. v. Patterson, 63 111. 304. 
 * Bridges v. N. London Rw., L. R., 6 Q. B. 377. 
 
132 PRODUCING TICKETS, OR EVICTION. 
 
 was to mislay his ticket, and find it again after 
 he had been ignominiously expelled; could he 
 recover against the company ? " 
 
 " I 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 trowsers, 
 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 pasteboard. 
 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 
 authorized and styled (under the Act) conductors, 
 when not committed in excess of authority, which 
 in this case had not been overstepped. The com 
 pany applied for a new trial, but the court de 
 clined to disturb the verdict (it being the second 
 one recovered by Curtis), although it considered 
 the damages excessive." l 
 
 " I should think," I remarked, " one ought to 
 be allowed a reasonable time to find his ticket." 
 
 i Curtis v. G. T. R., 12 C. P. (U. C.), 89. 
 
PRODUCING TICKETS, OR EVICTION. 133 
 
 " Of course," was the reply, " a passenger has 
 a right to ride so long as there is a reasonable 
 expectation of his finding it during the trip. 1 A 
 conductor on a previous train wrongfully taking 
 the passenger s ticket does not excuse the traveller 
 from producing it, when called upon by another 
 conductor ; although, in such a case, the company 
 would be liable for the wrongful act of the first 
 conductor." 2 
 
 " I suppose the courts assume that the conduc 
 tors are the agents of the company and authorized 
 to do all legal acts for properly collecting the 
 tickets, keeping order, running the train and re 
 moving 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 eject 
 ment." ; Force may be used to prevent one un- 
 
 1 Maples v. N. Y. & N. H. Rw., 38 Conn. 557. 
 
 2 Townsend v. N. Y. C., 56 N. Y. 295 ; Hamilton v. N. Y. C., 51 N. Y. 100 ; but 
 see Pittsburgh, etc., v. Hennigh, 39 Ind. 509 ; Palmer v. Charlotte etc Rw 
 3 S. C. 580. 
 
 8 Williamson v. G. T. R., 17 C. P. (U. 0.), 615. 
 
134 PRODUCING TICKETS, OR EVICTION. 
 
 lawfully getting on a train and no liability be in- 
 curred for injuries ; but when once a man is fairly 
 on care must be taken in removing him. 1 Com 
 panies have a right to adopt such reasonable reg 
 ulations as are necessary for their security, and 
 if they are not complied with by the passengers, 
 not only may the railroad refuse them admission 
 to the cars, but if they are already within they 
 may remove them ; 2 and in the enforcement of 
 order, and in the execution of reasonable regula 
 tions for the safety and comfort of passengers and 
 for the security of the train, the authority of the 
 officer in charge must be obeyed." 3 
 
 " Suppose a man suffered serious detriment to 
 his business by being wrongfully turned out of the 
 cars, could he recover for such losses ? " I asked. 
 
 " It has been so considered in the great Re 
 public, if he declares specially in regard to them. 4 
 But it has been held and I think rightly that 
 one cannot get vindictive or punitive damages 
 against a company, unless they expressly or im- 
 pliedly participate in the wrongful action by au 
 thorizing it beforehand or approving of it after 
 wards ; 5 or the case be one of gross negligence or 
 wilful misconduct." 6 
 
 1 Kline v. Cent. Pac. Rw., 37 Cal. 400. 
 
 2 Stephen r. Smith, 29 Vt. 160. 
 
 3 Bass v. C. & N. W. Rw., 36 Wis. 463. 
 * Holmes v. Doane, 3 Gray, 328, 
 
 5 Hagan v. Providence & W. Rw., 3 Rhode Island, 88. 
 
 6 Bannon c. Baltimore & 0. R. R.. 24 Md. 108 ; Baltimore & 0. B. R. T. 
 State, Ib. 271. 
 
PRODUCING TICKETS, OR EVICTION. 
 
 " What is it, then, exactly, that a man can get 
 for being with indignity and insolence hustled out 
 of a train, amid the laughs and jeers of the vul 
 gar 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. 1 One man got $1,150 for being put 
 off, when sick, away from a station." 
 
 " Suppose one was killed, and sent off unpre 
 pared to the happy hunting grounds of his fath 
 ers? " I queried. 
 
 " Then the company would be liable under 
 Lord Campbell s Act," 3 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 surroundings and belong 
 ings, and peaceably succumb to the powers that 
 be, for if you leave any articles behind you, you 
 cannot recover their value, unless you can show 
 that the company got them, or that the violence 
 or suddenness of your ejection rendered it impossi 
 ble for you to take them with you and so they 
 
 1 Hagan v. Prov. & W. Rw., 3 Rhode Island, 88. 
 
 2 111., etc., Rw. t- . Button, 58 111. 397. 
 
 3 Penn. Rw. Co. v . Vandiver, 42 Penn. St. 365. 
 
136 PRODUCING TICKETS, OK EVICTION. 
 
 were lost. This point Mr. Glover had the pleas 
 ure of settling. He was trying to do the London 
 and Southwestern 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. 1 The courts never like the idea of 
 mulcting railway companies in heavy damages for 
 the sins of commission of their servants and con 
 ductors; and so where a verdict of X50 was given 
 against the G. W. R. because the conductor put 
 the plaintiff off the train, though the inconven 
 ience to him was a mere bagatelle and the con 
 ductor had acted bond 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 stigmatized the verdict as outrageous : 
 but there the jurors of our Lady the Queen and 
 my lord differed ; and so on the second trial the 
 yeomen of the county gave the man only <5 less, 
 and the company submitted. 2 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. 3 And where an Ameri- 
 
 1 GloTer v. London & S. W. Rw., 3 Q. B. 25. 
 
 2 Huntsman v. G. W. R., 20 U. 0- Q. B. 24. 
 
 s Davis v. G. W. R., 20 U. C. Q. B. 27, and Life of Lord Nelson. 
 
PRODUCING TICKETS, OR EVICTION. 137 
 
 can jury gave $1,000, no special damage being 
 shown, a new trial was granted." 
 
 " To return to the question of tickets." I said, 
 " I saw an English 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. 
 
 " 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 distance, 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." 2 
 
 "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- 
 
 1 Crocker v. New London, Will., & Pat. Rw., 24 Conn. 249. 
 
 2 The Queen v. Frere, 4 E. & B. 698 ; Moore v. Metropolitan Rw., 8 
 Q. B. 36. 
 
138 PRODUCING TICKETS, OR EVICTION. 
 
 plied to the case of a person wilfully refusing to 
 show his ticket when he had 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. 1 Where a gentle 
 man took tickets for himself and three servants, 
 keeping the tickets in his own custody and tell 
 ing the guard that he had them, and the servants 
 were permitted to enter the car without having or 
 showing 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." 2 
 
 44 1 believe," I remarked, when a pause enabled 
 me to squeeze in a remark, 4 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 indulgence, 3 even though they have 
 been prevented purchasing them from the fact of 
 the office being closed. 4 Although, I believe, it 
 has been held by some courts that the increased 
 rate cannot be collected unless every proper and 
 reasonable facility has been afforded for procuring 
 tickets at the station ; 5 and that if a man, without 
 
 1 Dearden v. Townsend, 12 Jur. (N. S.), 120 ; 35 L. J. Q. B. (N. S.), 98. 
 
 2 Jennings v. G. N. R., 1 L. R. Q. B 7. 
 
 s The State v. Goold, 53 Maine, 279 ; Chicago and Alton Rw. v. Roberts, 40 
 111. 503. 
 
 * Crocker v. New London, Will., & Pat. Rw., 24 Conn. 249. 
 B St. Louis, etc., Rw. v. Dalby, 19 111. 353. 
 
PRODUCING TICKETS, OR EVICTION. 
 
 139 
 
 any default on his part, is prevented getting a 
 ticket, he may pay the conductor the excess of 
 fare under protest, and recover it back by suit, or 
 else he may insist upon being taken at ticket rate, 
 and sue for damages if the company refuse." 
 
 " I see that in England some companies have a 
 by-law that if a passenger loses his ticket he shall 
 be liable to pay the full fare from the most distant 
 place on the line." j 
 
 "That s rather hard lines." 
 
 " Don t pun fortunately they cannot enforce 
 their by-law by detaining the traveller himself." : 
 The legal disquisitions on railway companies 
 were suffered to subside for a time, while the train 
 rattled on. I gazed about on my companions. In 
 the seat in front of me sat a young couple, and, 
 judging from the orange blossoms in the bonnet 
 of the one, and the clean shave and kid gloves of 
 the other, not many hours had elapsed since they 
 had stood side by side at Hymen s altar, and now 
 they were seated inclining towards each other like 
 the slanting sides of the letter A. The male had 
 a little piece of sticking-plaster on his lower lip. 
 As I was staring at the youthful couple, the train 
 dashed into a tunnel and all was darkness. I heard 
 a prolonged sucking sound as of a cow drawing 
 her hind foot out of a mud-hole to quote a 
 western poet of renown and when again we 
 
 Jeffersonville, etc., Rw. v. Rogers, 28 Ind. 1. 
 Chilton v. L. & C. Rw., 16 M. & W. 212. 
 
140 PRODUCING TICKETS, OR EVICTION. 
 
 emerged into the daylight, ho ! presto ! the plaster 
 was reposing securely on the ruby lip of the 
 orange-bonneted one; all else was serene and 
 tranquil, and the two looked childlike and bland. 
 How was his ? here was a mystery as interesting 
 as any involved in railway law. I meditated 
 deeply on the point until I recollected what in our 
 ante-nuptial days my Elizabeth and myself were 
 wont to do ; then all became clear and plain. 
 
 " Had a sleep, have you ? " I said to my friend, 
 who had been silent an hour and was now yawn- 
 ingly stretching himself. 
 
 " A sleep ? oh I no ! not even a cat-nap, scarcely 
 worthy of the name of a kitten-nap," was the 
 reply. 
 
 " Humph ! rather a long kitten ! twenty miles 
 or so ! " 
 
 We stopped at a small wayside station for a 
 few minutes while the engine took a draught of 
 water ; a gentleman got out to take a breath of 
 air or something of the sort, and while he was 
 wandering up and down the platform, off started 
 our train without a solitary premonitory screech, 
 leaving the individual wildly waving his arms and 
 frantically shouting after the hindermost car. In 
 thus quietly slipping off, the company were wrong, 
 for a traveller who alights temporarily, but with 
 out notice, invitation, or objection, while the train 
 is stopping at an intermediate station, does no un 
 lawful act, and although for a time he surrenders 
 
PRODUCING TICKETS, OR EVICTION. 141 
 
 his place and rights as a passenger, he may re 
 sume them again before the train starts, and the 
 officers of the railway are bound to give him rea 
 sonable notice of starting, 1 and must not steal off 
 silently like a thief in the night. And passengers 
 have a right to perambulate the platforms while 
 the train is stopping for refreshments, and the 
 firemen and stokers should not toss about wood or 
 coal so as to injure the travellers. 2 
 
 1 State v. G. T. R., 4 Am. Rep. 258 ; 58 Me. 176. 
 
 2 Jefferson ville, etc., Rw. v. Riley, 39 Ind. 568. 
 
142 PLATFORMS AND ALIGHTING. 
 
 CHAPTER X. 
 PLATFORMS AND ALIGHTING. 
 
 Right to Safe Ingress, Egress, and Regress. Defective Platforms. 
 The Englishman and the C mum cat or. Getting out of Cars. 
 Train not at Platform. Calling out Name ; is it Invitation to 
 alight ? Ladies jumping. Hoop-skirts. Must have Safe Place 
 to alight. Leaving Train in Motion. 
 
 " WELL, here we are at last at H.," said my 
 friend who was learned in the law. 
 
 " Yes, now we have a chance of getting some 
 grub (carefully collated from the plates of those 
 who were here before us), and taking the epider 
 mal covering off the interior of our mouths with a 
 scalding decoction dignified by the name of tea," 
 I replied. 
 
 " Ding-dong-all gone come along one-all," 
 sounded forth the bell of the refreshment-room, as 
 the train drew up to the platform, and all the 
 weary travellers sprang up eager to stretch their 
 limbs and to replenish the inner man. Out they 
 rushed. Night had thrown her sable mantle (she 
 has no other except for moonlight wear) over na 
 ture s tired bosom, so some of our fellow travellers, 
 in the gloom, were precipitated into a hole in the 
 platform, which the company carelessly suffered 
 
PLATFORMS AND ALIGHTING. 143 
 
 to be there yawning open-mouthed unmind 
 ful of the fact that passengers have the same rights 
 to safe ingress, egress, regress, and progress over 
 the stations and platforms at the intermediate 
 places where the trains stop for refreshment, as 
 they have at the termini of the line ; l although it 
 would appear that where a stoppage is made only 
 for the purposes of the railway, and people are not 
 expected to get in or out, the rights of the travel 
 ling public and the liability of the company are 
 both greatly curtailed. 2 As soon as one procures 
 a ticket he is to be regarded as a passenger, and 
 is entitled to a safe passage to his seat. 3 
 
 Though the unfortunates kissed mother earth, 
 they were not seriously damaged ; one indeed 
 as a medical witness afterwards put it suffered 
 " from a severe contusion of the integuments under 
 the left orbit, with a great extravasation of blood 
 and ecchymosis in the surrounding cellubas, having 
 also a considerable abrasion of the cuticle," or, as 
 the judge in common-place Anglo-Saxon expressed 
 it, "had a black eye." Soon comestibles of all 
 sorts, kinds, and descriptions were vanishing rap 
 idly by means of down grades into sub- waistcoat 
 and sub-bodice regions. 
 
 When we had finished our repast, the train still 
 seemed quiescent, appeared as motionless as a 
 painted ship upon a painted ocean, so it was 
 
 1 McDonald v. Chicago, etc., 26 Iowa, 124. 
 
 2 Frost t-. Grand Trunk Rw., 10 Allen, 387. 
 
 3 Warren v. Fitchburg Rw., 8 Allen, 22T. 
 
144 PLATFORMS AND ALIGHTING. 
 
 suggested that a little of something slightly 
 stronger than tea might not be unpalatable ; but, 
 alas ! spirits were tabooed on the line, so there was 
 nothing for it but to make a foray into the adjoin 
 ing neighborhood for additional stimulants. A 
 porter kindly showed the way to a public house on 
 the opposite side of the highroad passing the sta 
 tion. We were soon all practising with great suc 
 cess at the bar, but while enjoying ourselves to 
 the full, the engine-bell rang out sharp and clear 
 on the frosty air. Off we all rushed helter-skelter, 
 and to save time, instead of returning by the way 
 we came, we took what we thought was a bee-line 
 for the station lights (but which turned out to be 
 the engine s) across some unfenced ground. Be 
 fore we well knew where we were we were all 
 tumbling pell-mell, one over the other, into a wide 
 ditch some three feet deep. However, we gained 
 the cars in time, and then one of our chance 
 acquaintances who, having been leading in the 
 race, went down first and was trampled upon by 
 the rest found that his arm was badly hurt ; so 
 the Q. C. and myself tried to console him with the 
 assurance that he was safe to recover a verdict 
 against the company if he only entrusted his case 
 into the hands of either of us, for a railway com 
 pany is bound so to fence its station that the pub 
 lic will not be misled, by seeing a place unfenced, 
 into injuring themselves by passing that way, it 
 
PLATFORMS AND ALIGHTING. 145 
 
 being the shortest road to the platform. 1 (Though 
 by the way, a Canadian court has considered that 
 companies 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, con 
 venient, and well-lighted ; 2 but in another case a 
 man who broke his leg in two places by falling 
 into a culvert, constructed by the company in the 
 highway, while leaving the station on a dark and 
 stormy night, got $2,000 damages.) 3 The neglect 
 properly to light a station, or to have a sufficient 
 corps of servants to aid passengers in alighting at 
 night, is evidence of negligence.* 
 
 Thinking that the man was an American citi 
 zen, I told him that Mr. C. J. Dillon, of the State 
 of Iowa, had said on a comparatively recent occa 
 sion that " railway companies are bound to keep 
 in a safe condition all portions of their platforms 
 and approaches 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." 5 
 
 " And, my dear sir," said the Q. C., who, more 
 observant than myself, had noticed a pile of H s 
 
 Burgess v. Q. W. R., 32 L. J. 76. 
 Walker r. G. W. R., 8 U. C. C. P. 161. 
 Fairbanks v. G.W. R., 35 Q. B. (Ont.), 523. 
 Patten v. Ch. & N. W. Rvv., 36 Wis. 413. 
 McDonald v. Chicago, etc., 26 Iowa. 124. 
 W. & R. OF T. ID 
 
146 PLATFORMS AND ALIGHTING. 
 
 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 while 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." 1 
 
 "Veil, hi think the Hinglish case is the one for 
 my money," quoth our new found friend. " Hand 
 hi ll rub my harm with a little hof this to prevent 
 any arm," he added, producing a pocket comfor 
 ter that Job never knew of. 
 
 " Don t waste good stuff that way," said Mr. 
 Smith. " Apply it internally, and rub your arm 
 with the bottle." 
 
 " Ho-ho-ho ! " laughed John Bull at the wretched 
 joke, which doubtless Avas first perpetrated " when 
 the Memnonium was in all its glory." He took 
 the advice, however, and the brandy with a ven 
 geance. 
 
 Some little while after I saw him steadying 
 himself as he stood up on the seat, and poking 
 with his stick at the top of the car : supposing he 
 was striving to open the ventilator, I paid little 
 
 1 Martin v. Gt. Northern Rw., 16 C. B. 179 ; and see the case of stumbling 
 over the hampers, Nicholson r. Lancashire & York Rw., 3 Hurl. & C. 534. 
 
PLATFORMS AND ALIGHTING. 147 
 
 attention to him. In a few minutes the train 
 suddenly stopped, in a few seconds more the 
 conductor came rushing into the car, excitedly 
 asking if any one had pulled the rope or commu 
 nicator. 
 
 " C mum cat or ? " asked J. Bull, " I wang the 
 bell for some bwandy n-vater. And dooced ard 
 work hi ad to reach hit. Where s the andle?" l 
 Speedily the train was again under weigh. 
 
 At length, after several hours more of journey 
 ing we arrived at our destination, thankful that as 
 yet all bones were safe and sound. Alas, I was 
 hallooing before I was out of the wood, for as I 
 emerged, the light being very dim, I fancied I 
 was stepping on the platform, but as I landed vio 
 lently on the ground I found that the car was 
 some feet beyond the platform. Of course rail 
 ways should bring their trains to a halt at places 
 convenient for passengers to alight. Bringing a 
 car to a solemn stand-still at a spot at which 
 it is unsafe to get out, under circumstances which 
 warrant one in believing that it is intended 
 he shall alight and that he may do so in safety 
 (without giving him warning of his danger), 
 amounts to negligence on the part of the com 
 pany, for which an action may be maintained if 
 the passenger has not in any way contributed to 
 wards the accident. 2 This highly sensible rule 
 
 1 See Punch for February, 1874. 
 
 2 Cockle v. London & S. E. Rw. Co., L. R., 7 C. P. 721 (Ex. Ch.). 
 
148 PLATFORMS AND ALIGHTING. 
 
 was adopted in the case of one Praeger, where 
 as I afterwards found Lord Chief Justice Cock- 
 burn, of Geneva award renown, said : "I adopt 
 most readily the formula which has been sug 
 gested as applicable to these cases, viz., that the 
 company are bound to use reasonable care in pro 
 viding accommodation for passengers, and that 
 the passengers are also bound to use reasonable 
 care in availing themselves of the accommodation 
 provided for them." 1 Of course, if it had been 
 daylight, and I could have used my eyesight to 
 any practical purpose, and had noticed that the 
 car was not in the ordinary position with regard 
 to the platform, I would certainly have exercised 
 a little more caution in getting out and not have 
 been such a ninny-hammer as to step down in the 
 way I did, for I can assure the general public, 
 that it is anything but agreeable to step upon thin 
 air and be thrown violently upon one s nasal organ, 
 which always seems tremendously projecting 
 on such occasions, abrasing one s elbows and 
 knees. 
 
 As I had my homeward journey to perform by 
 rail, and there seemed a chance of my being re 
 duced to an atomic condition before I once again 
 saw the wife of my bosom, I then, for the benefit 
 of my numerous readers (for, of course, I meant 
 to publish a book, as every one does nowadays), 
 dotted down a few decisions which I thought might 
 
 i Praeger v. Bristol & Exeter Rw., 24 L. T. (N. S.) 105. 
 
PLATFORMS AND ALIGHTING. 149 
 
 be useful for them to bear in mind in case they 
 ever came to grief in alighting from a railway 
 train ; and here they are pro bono publico. 
 
 (N. B. Those frivolous persons who only read 
 to pass the time, had better turn at once to the 
 next chapter.) 
 
 Where the train overshot the platform so that 
 the car in which one Whitaker was sitting stood 
 opposite to the parapet of a bridge, the top of 
 which in the dusk looked like the platform ; the 
 porters having called out the name of the place, 
 W. getting out on the parapet in the bond fide be 
 lief that he was stepping on the platform, fell over 
 and was injured, but recovered from the company. 
 Bovill, C. J., held that on this occasion there was 
 a clear invitation to alight at a dangerous place, 
 and that W. was misled by the appearance of the 
 parapet, and so distinguished the case from the 
 Bridges one, to which I will refer in a moment or 
 two. 1 Where in the dark, a passenger on alight 
 ing fell into a culvert, over which the car had 
 stopped, the company were held liable. 2 
 
 Owing to the length of the train in which a 
 Mr. and Mrs. Foy were journeying, there was not 
 room for all the cars to be drawn up at the plat 
 form, and some of the passengers were desired to 
 get out upon the line beyond it. The distance 
 from the carriage to the ground was only three 
 
 1 Whitaker v. Manchester & S. Rw. Co., L. R., 5 C. P. 464. 
 
 2 Col. & Ind. C. Rw. Co. v. Farrell, 31 Ind. 408. 
 
150 PLATFORMS AND ALIGHTING. 
 
 feet ; Mrs. F. (instead of sensibly availing herself 
 of the two steps of the carriage) with the aid of 
 Mr. Foy jumped from the first step to the ground, 
 and not being a practised athlete or gymnast 
 but a sweet little thing came down upon the 
 ground like a barrel of sugar with such a thud 
 that the vertebrae of her back were jarred and the 
 spine injured. The jury found that the company 
 were guilty of negligence in not providing reason 
 able means of alighting, and that the lady had 
 not contributed to the accident, and they gave her 
 .500 to pay her doctor s bills ; and the court con 
 sidered the verdict warranted and declined to in 
 terfere with the damages. 1 Bovill, Q. C., urged 
 that if the lady, instead of jumping as she did, had 
 turned herself round and availed herself of the as 
 sistance of both steps and of the handles of the 
 carriage, the accident would not have happened ; 
 but Williams, J., said severely that " in the pres 
 ent fashion of female attire, the mode of descent 
 suggested by the learned counsel would be scarcely 
 decent ! ". This judgment was given in 1865, and 
 as fashions change two or three times a year, one 
 can hardly decide what a lady might or should do 
 in this present year of grace, especially as the vir 
 tuous judge did not insinuate wherein in such a 
 descent would lie the lack of woman s crowning 
 glory, modesty. 
 
 While speaking of ladies and their attire I may 
 
 3 Foy & Wife r. London, B., & S. C. Rw. Co., 18 C. B. (N. S.), 225. 
 
PLATFORMS AND ALIGHTING. 151 
 
 mention that Mrs. Mary Poulin, while alighting 
 from a Broadway car, with her youngest hopeful 
 in her arms, caught her steel hoop-skirt upon a 
 nail in the cur platform ; this threw her down, 
 and she was dragged some distance, and seriously 
 injured and greatly frightened. The company 
 tried to escape liability by the ungallant plea that 
 hoops were not a necessary article of female ap 
 parel and that if Mrs. P. was determined to wear 
 such inflated skirts she ought to have exercised 
 more care than is required of a brother in sit- 
 upons ; the court, however, differed from the com 
 pany, and considered that the fair lady had been 
 guilty of no negligence, and that if the railroad 
 carried passengers adorned with crinolines they 
 must see to their safety. 1 
 
 Old Siner and his wife arrived in daylight at 
 Rhyl Station and the carriage in which they were 
 overshot the platform ; the passengers were neither 
 told to keep their seats nor to get out, nor did the 
 train move until it started on its forward journey. 
 After exhausting his stock of patience, S. follow 
 ing the example of his fellow travellers alighted, 
 without asking the company s servants to back 
 the train to the platform or holding any commu 
 nication with them whatever. The wife then, 
 standing on the iron steps of the carriage, grasped 
 both her husband s hands and jumped down, strain 
 ing her knee in the act, She did not use thefoot- 
 
 1 Poulin v. Broadway, etc., Rw., 34 N. Y. Sup. Ct. 296. 
 
152 PLATFORMS AND ALIGHTING. 
 
 board. There was no evidence of any carelessness 
 or awkwardness except what might be inferred 
 from these facts. In an action brought against 
 the company for this injury, the court held (Kelly, 
 C. B. diss.) that there was no evidence of negli 
 gence in the defendants, and that the accident 
 was entirely the result of the woman s own act in 
 awkwardly and carelessly jumping. 1 The Foy 
 case was distinguished, as there an express invita 
 tion to alight was given. 
 
 Where a gentleman, the corneas of whose eyes 
 were far more convex than those of the generality 
 of the genus homo, knowing well the station, got 
 out of the train while the carriage in which he had 
 been sitting was still in a tunnel, and in making 
 his way to the platform stumbled over some rub 
 bish and fell, breaking his leg and otherwise in 
 juring himself so that he shortly died from the 
 effects, it was held by the House of Lords (re 
 versing the decision of the court below) that the 
 train having come to a stand-still, the calling out 
 the name of the place was an invitation to alight, 
 and that the company s servants calling out after 
 wards " Keep your seats," showed that it had been 
 improvidently uttered, and therefore furnished 
 evidence of negligence, and that the personal rep 
 resentative of Mr. Bridges was entitled to recover 
 against the company. 2 The shortsightedness of 
 
 1 Siner v. G. W. 11., L. R., 3 Ex. 150. 
 
 2 Bridges v. North London Rw. Co., L. R.. 6 Q. B. 377. T n appeal L. R., 
 7 II. L. 213. 
 
PLATFORMS AND ALIGHTING. 153 
 
 the deceased imposed no additional duties on the 
 company. In another case the court thought that 
 the conduct of a traveller, who fell down between 
 the car and the platform, which curved gracefully 
 back from the line, amounted to contributory neg 
 ligence and so made absolute a rule to enter a 
 nonsuit. 1 
 
 In Bridges case it was unanimously held by the 
 whole court, that the calling out the name of a 
 station is not in itself an intimation to the passen 
 gers to alight ; whether it is so or not must de 
 pend on the circumstances of each particular case. 
 Willes, J., said, " Nobody who travels by rail who 
 has a head on his shoulders would ever say that 
 calling out the name was an invitation ; " but 
 many a man with a head on his shoulders, and 
 with something in that head too, acts as if he did, 
 
 indeed C. J. Redfield says that Bridges only 
 
 did what the great majority of men would have 
 done under similar circumstances. (In fact Red- 
 field considers that in the late cases the English 
 courts have overstrained things in favor of the 
 companies.) 2 Baron Cleasby thought that in 
 reality the stopping of the train at the station is 
 the invitation to alight. Bovill, C. J., said that 
 whether calling out was a request to . get out or 
 not was a question for a jury. 3 In a late case 
 
 1 Praeger v. Bristol & Exeter Rw., L. R., 5 C. P. 460, n. 1 ; also Plant *. 
 Midland Rw. Co., 21 L. T. (N. 8.), 836 ; and llarrold t. Great Western Rw., 14 
 L. T. (N. S.), 440. 
 
 2 Redfield on Railways, vol. ii., p. 264. 
 
 s Whitaker v. Manchester & S. Rw., L. R., 5 C. P. 464. 
 
154 PLATFORMS AND ALIGHTING. 
 
 Mr. Justice Blackburn gave it as his decided opin 
 ion, that calling out the name is merely an inti 
 mation to all on the train that the place at which 
 the cars are about to stop is that particular sta 
 tion named ; and he adds (most truthfully) that 
 every person must have heard porters at stations 
 call out something which, if the traveller happens 
 to know the name of the place, is recognizable, 
 but if the name is not known, no reliable informa 
 tion is gained from the porter s cry. 1 In a still 
 later case it was said that the train having over 
 shot the platform and the name of the place hav 
 ing been called out, the omission of the company s 
 servants to caution passengers not to alight until 
 the train had been brought up at the proper place 
 was evidence of negligence, or according to Honey- 
 man, J., negligence itself. 2 
 
 Companies are bound to provide platforms, or 
 safe places of deposit, for passengers to alight on at 
 their stations and to deliver them there. If there 
 is any difficulty in the passengers getting out, the 
 officers should assist them to do so. 3 If the place 
 where one is required to alight is in fact danger 
 ous, it is his duty to request the train to be put in 
 its proper place ; and this is a request which no 
 station-master would venture to refuse, knowing 
 
 1 Lewis & Wife v. London C. & D. Rw., L. R., 9 Q. B. 69 ; Cockle t. Lon 
 don & S. E. Rw., L. R., 5 C. P. 457 (Ex. Ch.), distingaished. 
 
 2 Weller v. London, Brighton, & S. C. Rw., L. R., 9 C. P. 126. 
 
 3 Memphis & Charleston Rw. r. Whitficld, 44 Miss. 466 : Robson r. N. E. 
 Rw., L. R., 10 Q. B. 271. 
 
PLATFORMS AND ALIGHTING. 155 
 
 the risk he would incur if an accident happened 
 through his refusal. If the defendants will not 
 place the train properly, the plaintiff should stay 
 in the carnage. So, at least, said the judges in 
 Siner v. Great Western Railway {supra) ; l but 
 we can well imagine the surprised look tinged 
 strongly with scorn of a conductor upon any 
 one of our Cis-atlantic railways, were he asked to 
 move his train forwards or backwards merely for 
 the convenience of his living freight. 
 
 If a man persists in getting off a train while it 
 is in motion, especially if he has been warned by 
 the conductor not to do so, he has no claim against 
 the company for any damage he may receive in 
 the act ; 2 and so when one attemped to get on a 
 train while moving and was killed in the attempt, 
 it was held, as a matter of law, that no recovery 
 could be had. 3 But otherwise where one lost his 
 life in jumping off hy the direction of the conduc 
 tor. 4 The courts of Mississippi have laid it down 
 clearly that it is the duty of railway companies to 
 announce audibly in each car the name of the 
 station reached and then allow sufficient time for 
 the passengers safely to leave the carriages ; and 
 that on the other hand it is the duty of the pas 
 sengers to use reasonable care, and to conform to 
 the customs and usages of the company so far as 
 
 1 See also, Memphis & C. R\v. v. Whitfield, 44 Miss. 466. 
 
 2 Ohio & Miss. R\v. v. Schiebe, 44 111. 460. 
 
 s Knight v. Ponchartrain Rw., 23 La. Ann. 462. 
 * Lambeth v. North Carolina Rw., 66 N. C. 494. 
 
156 PLATFORMS AND ALIGHTING. 
 
 they know and understand them. 1 If a company 
 through neglect of their duty expose a passenger 
 to obvious peril, or grave inconvenience, and the 
 traveller to escape the threatened peril, or incon 
 venience, does something that is not obviously 
 dangerous (although it may be the cause of the 
 injury) the company will be liable. 2 
 
 Where a man is so drunk that he cannot take 
 care of himself, if the conductor is aware of it, he 
 must bestow upon him the requisite degree of at 
 tention to save him from injury; 3 and so when a 
 traveller is sick. 
 
 Ah me ! I fear that this long dilating will cause 
 my Diary to be sent 
 
 To bind a book, to line a box, 
 Or serve to curl a maiden s locks. 
 
 Southern R\v. v. Kendrick, 40 Miss. 374. 
 
 2 Adams v. Lancashire & Y. Rw., L. R., 4 C. P. 744. 
 
 8 Giles . G. W. R., 36 Q. B. (Ont.) 360. 
 
BAGGAGE. 157 
 
 CHAPTER XL 
 BAGGAGE. 
 
 Gone. Company liable for Lost Baggage. Carelessness of Owner. 
 
 Checking. 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 squeezing Fingers. Stern Boreas. 
 
 MISFORTUNES never come singly, for birds of a 
 feather flock together. Scarcely had I got to the 
 hotel and begun ruefully examining the discolora- 
 tions on my nether limbs and putting a piece of 
 sticking-plaster on the top of my proboscis, when a 
 thought struck me, and really hurt me, so that I 
 involuntarily exclaimed, " Why, where s my bag ? " 
 Of one thing I was soon satisfied, namely, that it 
 was not there. I ran my fingers through my hair 
 to let the cooling air as near as possible to my 
 heated brain, and after mature reflection came to 
 the conclusion that I had seen nothing of it since 
 I had left it in the car while I went out after 
 those refreshments already referred to ; for on my 
 return, finding in my seat a lovely girl, with long 
 dark eyelashes, soft tender dark-blue eyes, a be 
 witching smile, and dimples which rippled round 
 her ruby lips as she talked and laughed with a 
 
158 BAGGAGE. 
 
 young fellow of a vinegar aspect who sat beside 
 her, I had located myself elsewhere. Both these 
 individuals had got out at the next station, but I 
 had never again noticed, or even thought of, my 
 bag. 
 
 When I met the Q. C. in the dining-hall I told 
 him of my loss. 
 
 " What had you in your bag ? " he inquired, 
 with the air of a man who thought that he knew 
 a thing or two about lost luggage. 
 
 " Nothing but my brushes and razors, pen and 
 ink ; some shirt-fronts alias dickeys, and other 
 clothing." 
 
 " Ah well ! you are all right ! you can easily 
 recover the value of the waifs and strays from the 
 company ; for all those things have been held to 
 be such personal baggage as a traveller has a right 
 to carry with him. 1 Have you got your check ? " 
 he added. 
 
 " No. It was not checked. I carried it into the 
 car with me, and left it to keep my place when 
 we got out for refreshments, and it was gone be 
 fore I got back into my seat at least I have not 
 beheld it since." 
 
 " N importe ! as the frog-eaters say. You are 
 entitled to recover, for your ticket gives you a 
 right to be carried with your luggage ; 2 and a by- 
 
 1 Hawkins v. Hoffman, 6 Hill (N. Y.), 586 ; Duffy v. Thompson, 4 E. D. 
 Smith, 178. 
 
 2 Gamble v. G. W. Rw., 24 U. C. Q. B. 407 ; Le Contour v. London & S. W. 
 Rw., L. R., 1 Q. B. 54. 
 
BAGGAGE. 159 
 
 law to the effect that a company will not be re 
 sponsible for baggage unless booked, has been held 
 bad in England. 1 Of course, if you had kept ex 
 clusive control over your bag, the company would 
 not ordinarily be liable. 2 And when a man has 
 his traps taken into the car with him for his own 
 convenience he impliedly undertakes to use rea 
 sonable care ; and if one were to leave his port 
 manteau in one car while he went and travelled 
 in another, and the portmanteau was rifled, he 
 could not recover for his loss ; 3 nor, if he stupidly 
 forgot to take his overcoat with him, when he left 
 the train." 4 
 
 " I had an idea," I said, " that a Canadian 
 judge had expressed an opinion to the effect that 
 the system of checking in vogue in this enlight 
 ened country was notice to passengers that all ar 
 ticles must be checked or handed to the company s 
 servants, except what they desire or prefer to keep 
 under their own personal care and at their own 
 risk. Did you ever meet with such a dictum or 
 decision ? " 
 
 " Oh yes, I noticed the case only the other dny. 
 Morrison, J., did speak to that effect, but he was 
 overruled, and Draper, C. J., said that he con 
 sidered checking only as additional precautions 
 
 3 Williams v. G. W. Rw., 10 Ex. 15; see also, G. W. R. v. Goodman 12 
 C. B. 313. 
 
 2 Tower v. Utica & Sch. Rw., 7 Hill (N. Y.), 47; and Wilde, J., in Rich 
 ards v. London,.B., & S. C. Rw., 7 C. B. 839. 
 
 3 Talley v. G. W. R., L. R., 6 C. P. 44. 
 
 4 Tower v. Utica & Sch. Rw., supra 
 
160 BAGGAGE. 
 
 taken by the company, beyond what is customary 
 in England, in order to prevent the luggage from 
 being given up to the wrong person ; that the 
 company would be liable for a loss in case no such 
 means of checking was in use, and if, notwith 
 standing, a loss occurs, the liability is unchanged, 
 in the absence of express notice on their part that 
 they will be responsible only for articles checked. 1 
 By the way, were there any papers in your bag ? " 
 
 " No ; they were all in my pocket. I have not 
 many with me, and I remember seeing it decided 
 that title deeds, which an attorney was carrying 
 with him to produce on a trial, were not baggage 
 for the loss of which a carrier would be responsi 
 ble." 2 
 
 " Prudent man ! " replied my friend, as he 
 turned on his heel and departed. 
 
 What I did at the place where I now was con 
 cerns nobody except those who had the pleasure 
 of paying my travelling expenses to and fro and 
 my hotel bill while there. To dilate with any 
 particularity on the subject might lead one into a 
 breach of that well-established rule concerning 
 privileged communications between attorneys and 
 their clients. 
 
 At length my labors were at an end and I was 
 at perfect liberty to return to my Lares et Penates 
 at my earliest convenience. My readers must not 
 suppose, from the fact that my bag and baggage 
 
 i Gamble p. Great Western Rw., 24 U. 0- Q. B. 407. 
 Phelps v. London & N. W. Rw., 19 C. B. (N. 8.), 321. 
 
BAGGAGE. : l(jl 
 
 had been lost, that I was acting the Nazarite all 
 this time ; no indeed, I had bought all the neces 
 sary articles of a gentleman s toilet and some 
 changes of raiment, and with these in a bran new 
 valise I was ready to start en route for the place 
 whence I had come forth. 
 
 I was rather amused, while awaiting the arrival 
 of my train at the station, by a controversy be 
 tween what was evidently a "fond parient " of 
 rural origin and the baggage-master. The father 
 had invested in a spring-horse for his youthful 
 son and heir to exercise upon ; the creature was 
 forty-four inches long and weighed seventy-eight 
 pounds. The man wished it passed as luggage. 
 
 " No, you will have to pay freight for this, ; 
 said he of the chalk and checks. 
 
 "But I have nothing else, and I am certainly 
 entitled to carry something," urged the man. 
 
 " Yes," returned the other, " you are entitled 
 to take your personal baggage with you ; but 
 if you have none, that does not give you the 
 right to take other things instead, 1 and a horse of 
 this color is personal luggage by no manner of 
 means." 2 
 
 Just then a friend came up to me and asked 
 what was included in the personal baggage which 
 a man was entitled to take with him, free of 
 charge. I said : 
 
 1 Pardee v. Drew, 25 Wend. 459. 
 
 2 Hudston v. Midland Il\v., L. R., 4 Q. B. 366. 
 
 W. &R. OFT. 11 
 
162 BAGGAGE. 
 
 " My dear sir, that is a question which lias 
 often pressed itself seriously upon the considera 
 tion of a contemplative traveller and philosophic 
 jurist like myself, when on entering a crowded 
 train I have found one half of the seats occupied 
 bv c stern realities or bipedal extremities, and 
 the other half by bundles and bandboxes, nursery 
 paraphernalia, and the oleaginous and saccharine 
 products of the kitchen and the cook-shop ; and 
 -also when I have considered how gravely the 
 question has agitated courts of justice. One of our 
 own learned judges has forcibly remarked that 
 the authorities and references show it is much 
 easier to say what is not personal or ordinary lug 
 gage, than it is to decide what it is which a carrier 
 is bound, or which it is usual for him to carry 
 along with his passengers. 
 
 " You have made a long oration, but have not 
 answered my question ; just like you lawyers, 
 always darkening counsel by words." 
 
 u State your question more definitely," I re 
 marked. 
 
 " Well, then, there is a poor man here, moving 
 West with his family. He has a bed, pillows, 
 bolsters, and bed-quilt in a trunk, or a box, with 
 his clothes ; he is carrying them for his own use. 
 Should he be compelled to pay freight on them ? 
 He says that he has no money ; and I don t want 
 to see the poor beggar put upon." 
 
 " Yours is a question which I cannot definitely 
 
BAGGAGE. 163 
 
 answer. In England, it was decided that such 
 things were not personal baggage.! In Vermont 
 it was held a matter for a jury to pronounce upon, 
 after considering the peculiar circumstances, the 
 value, the quantity, and the intended use of the 
 articles." 2 
 
 " He would not, with a peremptory tone, 
 Assert the nose upon his face, his own ; 
 With hesitation, admirably slow, 
 He humbly hopes, presumes it may be so. " 
 
 said my friend mockingly, and then added pep- 
 perishly, " You unsatisfactory lawyers will never 
 give a sensible reply to the simplest question." 
 
 " Granted. But yours was not the simplest 
 question. Were an ordinary layman like your 
 self to read but a tithe of what has been written 
 on the moot point of personal luggage or not, you 
 would be a sadder, if not a wiser man than you 
 now are ; so voluminous are the decisions, that a 
 Saratoga trunk would fail to contain all." 
 
 " Well, you are not luminous anyway. 
 
 " Lawyers each dark question shun 
 
 And hold their farthing candle to the sun. 
 
 I m off to get my traps in the cloak-room." 
 
 " I 11 go with you," I replied. 
 
 When we got to the room we found the door 
 locked, and that the man in charge was off for an 
 hour or so. 
 
 44 Well, that is a pretty how-do-ye-do ; my train 
 
 1 Macrow v. Gt. Western Rw. Co., L. R., 6 Q. B. 612. 
 
 2 Ouimit r. Henshaw, 36 Vt. 605. 
 
] 64: BAGGAGE. 
 
 will be going in a few minutes, so what am I to 
 do?" 
 
 " Have you got a ticket for your baggage ? " I 
 inquired. 
 
 " Yes, and paid tuppence for it. Here it is." 
 On the back of it were some printed conditions, 
 but nothing was said as to the hours the cloak 
 room was kept open, or at what time the box was 
 to be re-delivered. 
 
 " It is clear," I remarked, " that the company 
 is bound to give you your box on your reasonable 
 request, and at any reasonable time." 1 
 
 " But what good does that do me, if they are 
 not here to give me my things now ? I must go 
 on whether I get them or not." 
 
 " You can sue them," I remarked. 
 
 "All very fine, but I have a case of patterns 
 which I need with me ; and suppose it is lost ?" 
 
 " Well, of course, you can t recover damages 
 beyond the actual value of the goods. No ware 
 houseman is responsible beyond the actual value 
 of the article lost or damaged, unless there was a 
 special contract. 2 What was the value ? " 
 
 " Thirty or forty pounds." 
 
 " What ! " 
 
 " Can t you hear ? I say thirty or forty pounds." 
 
 " Well, I am very sorry for you. Did not you 
 see the notice on the ticket that 4 the company 
 
 i Stallard v. Gt. W. B., 2 B. & S. 419 ; 8 Jur. (N. S.), 1076. 
 8 Anderson f . Northeastern Rw., 4 L. T. (N. S.), 216. 
 
BAGGAGE. 165 
 
 will not be responsible for any package exceeding- 
 the value of 10. " 
 
 " Oh, but I did not read that." 
 
 " The legal inference, however, is that you did 
 read it, and did assent to it ; and so I am afraid 
 that the company, in case of a loss, will not be 
 liable as your goods exceed the prescribed limit. 1 
 For the same reason they may also be excused for 
 delay in redelivering them, at least if such tardi 
 ness is not caused by any wilful act or default of 
 their own, and is without their privity or knowl 
 edge. 2 Samples and patterns are not considered 
 personal baggage." 3 
 
 " Many thanks for all your information. 1 think 
 I can see my box through this crack, and here 
 comes the man with the key ; so I am all right." 
 
 " Well, good-by ! 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, I saw a crowd 
 gathered round the ticket-office, and an unfortu 
 nate man quite respectably habited strug 
 gling 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 
 
 1 Van Toll v. Southeastern Rw. Co. ,12 C. B. (N. S.), 75; 6L. T.(N. S.),244; 
 Harris v. G. W. R., W. N. June 10, 1876 ; but see Henderson v. Stevenson, L 
 R., 2 S. & D. 470. 
 
 2 Pepper v. Southeastern Rw. Co., 17 L. T. (N. S.), 469. 
 s Bay ley v. Lancaster Rw. Co., 18 Sol. J. 301. 
 
166 BAGGAGE. 
 
 was Allen, objected and demanded a British penny 
 in its place, and as the clerk would not take back 
 the sous, Allen determined to help himself. The 
 bowl of the till containing copper coins appearing 
 to be within easy reach he put in his hand to get 
 the 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 term 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 neces 
 sary for the protection of the company s property, 
 but was merely to vindicate justice, the clerk had 
 no implied authority to arrest the man; his au 
 thority only extended to the doing of such acts as 
 were necessary for the fulfillment of the duties en 
 trusted to him, and that the company was, there 
 fore, not liable for the act of the clerk, nor for that 
 of the policeman who took A. into custody. Black 
 burn, J., was inclined to think that if a man in 
 charge of a till were to find that a person was at 
 tempting to rob it, and he could only prevent his 
 stealing by taking him into custody, he might 
 
BAGGAGK. 1G7 
 
 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 within the authority of the clerk. 1 ) 
 
 A man standing by me asked how it was that 
 the policeman had not on the same style of gar 
 ments as those of his fellows who perambulate in 
 blissful ease and quiet serenity the city streets. I 
 told him that railway companies had power to ap 
 point constables to act on their lines for the pres 
 ervation of peace, and securing persons and prop 
 erty 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 there^- 
 from, and to take before a justice of the peace any 
 person guilty of an offence punishable by summary 
 convictions under any act or by-law. 2 
 
 This time I had my impedimenta checked, and 
 thus was relieved of the trouble of carrying them 
 in and out 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. 3 It is always 
 the source of great wonderment to me that the 
 British public do not insist upon the British rail- 
 
 1 Allen v. London & S. W. Rw., L. R., 6 Q. B. 65. 
 
 2 Railway Act, 1868, 49. 
 
 s Dill v. Railroad Co., 7 Rich 158. 
 
168 BAGGAGE. 
 
 ways introducing the system on their lines; thvi 
 continental plan of registering, though far in ad 
 vance of the English, is still much more trouble 
 some than the simple process of checking, and 
 very expensive. How convenient is our enlight 
 ened plan, when one has to change cars en route : 
 no trouble looking after baggage ; one simply has 
 to walk out of one train into the other, ticket for 
 he whole journey and checks in your pocket, and 
 if your traps are lost, you can sue either or any of 
 the companies. 1 
 
 The car being rather crowded, the atmosphere 
 soon became rather close and stifling. A gentle 
 man, after a considerable amount of coaxing, push 
 ing, shoving, and pulling, persuaded one of the 
 windows to allow itself to be lifted up to admit 
 the sharp, clear, exhilarating winter s air. The 
 person who opened the window got out and another 
 got in and took his seat beside it, and carelessly 
 alloAved his left hand to rest on the ledge. As the 
 train approached a station, the breaks were sud 
 denly put on, and the vibration caused the window 
 to fall athwart the man s fingers, inflicting a seri 
 ous injury thereon. Aroused and attracted by the 
 grunting and groaning, adjurations and exclama 
 tions of the injured one, some officious people came 
 round him, advising and urging the poor fellow to 
 sue the company, for that they were bound to pro 
 vide windows with good fastenings for the comfort 
 
 1 Hart r. Rensellaer & Saratoga R\v., 4 Sold. 37. 
 
BAGGAGE. 169 
 
 and protection of passengers. I merely said, that 
 without positive proof of the defective construction 
 of the window, the mere falling would not make a 
 primd facie case of negligence against the com 
 pany, as a Mr. Murray found when he sued a 
 London railway company for exactly a similar in 
 jury. 1 
 
 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 uncomfortably constituted mortals 
 are very apt to stretch their heads, or legs, or 
 arms, out of the windows of railway carriages, 
 having no other improper place to put them when 
 travelling by rail ; to such eccentric genii I w would 
 remark, that if they are injured while in this posi 
 tion, they will not be able to recover damages 
 against the company, for the negligence is their 
 own, and the company is not bound to put bars 
 across its carriage windows as careful matrons do 
 over their nursery panes. 2 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, 3 but this fatherly decision has been over 
 ruled. 4 Mrs. Holbrook found this to her cost 
 
 1 Murray v. Metropolitan District Rw., 27 L. T. (N. S.), 762. 
 
 2 Indianapolis & Cincinnati Rw. v. Rutherford, 7 Am. Law Reg. (N. S.), 
 476. 
 
 3 N. .7. R. v. Kennard, 21 Penn. St., 203. 
 
 * P. & C. Rw. r. McClurg, 7 Am. Law Reg. (N. S.), 277 ; Pittsburgh, etc., 
 Rw. v. Andrews, 39 Md. 329. 
 
170 BAGGAGE. 
 
 when she had her arm broken (it was projecting 
 from the window) by something coining against it 
 as they were passing other cars on another track. 1 
 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 conductors 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 sufficient. 2 
 
 Talking about squeezing fingers a decidedly 
 unpleasant thing to the squeezee, when not done 
 by the human hand divine railway officials are 
 not allowed, as a rule, to apply extempore thumb 
 screws and pinch a man s digits in the door. This 
 has been solemnly decided by the Court of Com 
 mon 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, 
 flung to 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, compressibility, he had them 
 
 1 Holbrook v. Utica & Sch. Rw., 12 N. Y. 233. 
 
 2 Laing v. Colder, 8 Pcnn. St. 483. 
 
BAGGAGE. 171 
 
 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 thereto, 
 and so gave the latter damages against the rail 
 way company. 1 Mr. Jackson made <50 out of his 
 ride from Moorgate Street to Westbourne Park 
 by the underground railroad. The compartment 
 in which he was seated was full, but at Gower 
 Street two more got in despite our friend s re 
 monstrances. At the next station others tried to 
 enter (the door having been opened), but were 
 prevented by those in possession. The door re 
 mained unshut as the train passed along the plat 
 form, but just as it entered the tunnel the porter 
 slammed it to, and jammed Jackson s hand in the 
 hinge. The court considered that all these facts 
 showed such a careless and improper mode of con 
 ducting business that Jackson was entitled to keep 
 the little sum mentioned. 2 
 
 In another case, however, where a porter after 
 he had called out, " Take your seats take your 
 seats ! " squeezed a man s thumb in shutting to the 
 door, the same court considered that the official had 
 closed the door in the ordinary and proper exercise 
 of his duty, and that Mr. Richardson had only 
 to thank himself for his want of caution in leav- 
 
 1 Fordham v. L. B. & S. C. Rw., L. R., 3 C. P. 368 ; 4 C. P. 619 (Ex. Ch.) ; 
 also, Coleman v. S. E. Rw., 4 H. & C. 699. 
 
 2 Jackson r. Metropolitan Rw., L. R., 10 C. P. 49. 
 
172 BAGGAGE. 
 
 ing his member where it might be so easily 
 crushed. 1 
 
 To return from this digression, which my read 
 ers will probably have found as dull and heavy 
 as most wanderings of that nature. Before many 
 hours had passed, thick heavy clouds began to 
 scud across the sky ; the wind sighed and moaned 
 mournfully around the car ; Boreas came raging 
 from the icy regions of the North, and the snow- 
 flakes whirled wildly in ever-thickening clouds 
 as a Longfellow would have said had he been on 
 board that express train : 
 
 Ever thicker, thicker, thicker, 
 Froze the ice on lake and river : 
 Ever deeper, deeper, deeper, 
 Fell the snow o er all the landscape, 
 Felt the covering snow and drifted 
 Through the forest, round the carriage. 
 
 Slowly and more slowly did the laboring engine, 
 laden with its long line of cars, make its way 
 against the obstructing showers of feathery ice- 
 morsels, and fears arose in the hearts of the pas 
 sengers that our progress would soon be entirely 
 stopped and we would be left to spend the long 
 cold night imbedded in the rapidly rising banks of 
 snow. 
 
 A lady, shivering as she gazed out into the now 
 pitchy darkness, asked me in quivering tones, 
 what would be done if we came to a complete 
 standstill and the engine was unable to move at 
 all ? I replied : - 
 
 1 Richardson v. Metropolitan Rw., L. R., 3 C. P. 374, n. 
 
BAGGAGE. 173 
 
 " If a line becomes blocked up and impeded by 
 snow, the company is bound to use all reasonable 
 exertions to forward the passengers, although that 
 may put the company to extra expense which of 
 course they have no way of recovering from the 
 travellers; 1 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 woman ; 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 
 curse, and pay dearly for Adam s transgression 
 and fall." 
 
 1 Addison on Torts, 3d ed. 448. 
 
 2 Briddon v. Gt. Northern Rw., 28 L. J., Ex. 51. 
 
174 DUE CARE. 
 
 CHAPTER XII. 
 
 DUE CAKE. 
 
 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. Latent Defects in Cars. 
 English Rule. Rule in New York. Moralizing. Railroad 
 Death-rate. 
 
 As the train came to a solemn pause in a deep 
 cutting a number of us gathered together in the 
 warm and cosy Pullman, the ne plus ultra of rail 
 way 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 re 
 lated railroad adventures and accidents; tales 
 which excited laughter and joyous merriment, of 
 engagements, love scenes, marriage ceremonies, 
 undress exhibitions in sleeping cars ; tales of sor 
 row and grief, collisions, explosions, helpless peo 
 ple 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. 
 
DUE CAKE. 175 
 
 One told that, in India, railroad traffic is seri 
 ously affected by the stagnation of the matrimonial 
 market, a wedding there being an occasion of 
 great pomp and the gathering together of friends ; 
 that the railways are breaking down the castes, 
 as the conductors tumble into the same car prond, 
 lofty, blue-blooded Brahmins, poor despised Pari 
 ahs, blood-thirsty Thugs, sun- worshipping Parsees, 
 and learned Mussulmans ; and go together these 
 must, notwithstanding the dogmas of Shasters, 
 Vedas, and Korans, or else jump out and die. 
 Another told of having found nuggets of gold, the 
 remains of melted jewelry, among the charred 
 and blackened remains of unfortunates consumed 
 at the Komoka (Out.) accident. While a third 
 in graphic terms described the efforts made to 
 break 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 revers 
 ing made a spring forward, locomotives shrieking 
 and screeching, men yelling 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, 
 
176 DUE CARE. 
 
 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 gen 
 tleman turning to me, said : 
 
 " I believe that a carrier of goods is liable for 
 his freight in every event ; is a carrier of passen 
 gers responsible to the same extent ? " 
 
 " No," I responded, " all jurists are agreed that 
 railway companies 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 ; l 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 per 
 sons conveyed by them, but is one which the law 
 imposes. If railways are bound to carry, tfiey 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, parboiled or cut into sausage 
 meat, to his executors and administrators. 2 The 
 
 i Aston v. HeaYen, 2 Esp. 533 ; Frink v. Potter, 17 111. 406. 
 * Collett v. London & N. W. Rw., 16 Ad. & Ell. (N. S.), 984. 
 
DUE CARE. 177 
 
 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 re 
 garded as primd facie evidence of their liability ; 1 
 and such evidence, if not rebutted by the com 
 pany, will justify a verdict against them which a 
 court will not set aside." 2 And having delivered 
 myself of this harangue, I looked around with a 
 self-satisfied air and rubbed my hands with in 
 visible soap, in imperceptible water, a 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, 3 but not 
 every possible preventive which the highest scien 
 tific skill might have suggested, 4 nor every device 
 which ingenuity might imagine. 5 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 practi 
 cal mode of examination, 6 and be bound to provide 
 road worthy carriages, absolutely and irrespectively 
 of negligence," 
 
 " Yes, that is the rule in New York State, but 
 
 1 Denman, C. J., in Carpue v. London & B. Rvv., 5 Q. B. 747 ; Laing r. 
 Colder, 8 Penn. St/479-483. 
 
 2 Dawson v. Manchester S. & L. Rw., 5 L. T. (N. S.), 682 ; but see Hammock 
 f. White, 11 C. B. (X. S.), 587. 
 
 3 liegeman v. West. Rw. Corp., 16 Barb. 353. 
 
 * Ford v. London & S. W. R., 2 F. & F. 730, per Erie, C. J. 
 6 Baltimore & Ohio Rw. v. State, 29 Md. 252. 
 
 * Alden r. N. Y. Central Rw.. 23 N. Y. 102. 
 W. & R. OF T. 12 
 
178 DUE CARE. 
 
 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 vis major, 
 as the breaking of a rail through extreme cold. 7 1 
 
 " Wai, strangers," quoth a regular long, lean, 
 lanky down-easter, " look ye liar, down in my 
 State, a carrier is bound to use the highest degree 
 of care that a reasonable man would use." 2 
 
 44 That is substantially the same as the rule in 
 the English cases," I said, " and has, I believe, 
 been followed in most of the States, and in the 
 United States Supreme Court." 3 
 
 44 1 presume," said the machinist; " companies 
 are liable for defects in their cars whether they 
 manufacture them or purchase them ? " 
 
 " Oh yes," I rejoined, u the companies are alike 
 bound to see that in the construction no care or 
 skill has been omitted for the purpose of making 
 their engines and cars as safe as care and skill can 
 make them." 4 
 
 44 1 remember," spake the man of science, 44 hear 
 ing of one case where the engine ran off the track, 
 and it was found that a fore-axle was broken, but 
 no evidence was given as to whether the accident 
 caused, or was caused by, the breakage ; yet a 
 traveller who had his shoulder contused, and his 
 
 1 McPadden v. N. Y. C. Rw., 44 N. Y. 478 ; 47 Barb. 247. 
 
 2 13 Conn. 326. 
 
 s Redfield on Railways, vol. ii., 222 n. 
 
 * Ilogeinan r. Western Rw., 16 Barb. 353, affirmed by Court of Appeals, 13 
 N. Y. 9. 
 
DUE CARE. 179 
 
 a 
 
 hat crushed, and was rendered insensible for 
 time and sick for a longer period by the accident, 
 recovered a large sum against the company. 1 And 
 in another English case 2 an accident happened 
 from the breaking of the tire of a driving-wheel; 
 the defect could not have been discovered by the 
 original testing, but might have been if it had been 
 repeated when the tire was returned after being 
 considerably worn. The company was held liable. 
 And so where the defect might have been discov 
 ered when the car was mended, and it was sent on 
 without being thoroughly examined and repaired." J 
 " Yes," said one who had not yet spoken, " I 
 was on a jury in a case against the Great Western 
 of Canada. The axle of the tender had broken, and 
 the tender and a car went off the track, and a man 
 who was in the car had his arm broken. At the 
 trial the company proved by the engineer in 
 charge of the train, that he had examined the axle 
 shortly before the accident and that all appeared 
 in good order. The judge charged in favor of 
 the defendants, but we found a verdict for the 
 plaintiff, which the court refused afterwards to 
 interfere with, as we were the proper judges as to 
 whether or not there had been negligence on the 
 part of the company." 4 
 
 1 Dawson r. Manchester L. & L. Rw., 5 L. T. (N. S.), 682 ; see also, Skinner 
 v. London B. & S. C. Rw., 5 Ex. 787; Carpue v. Same, 5 Ad. & E. (N. S.), 
 747 ; Bird . Gt. Northern Rw. 28 L. J., Ex. 3. 
 
 2 Manser v. Eastern Counties Rw., 3 L. T. (N. S.), 585, Exch. 
 
 3 Richardson v. G. E. R., L. R., 10 C. P. 486; reversed on appeal, W. N. 
 May 20, 1876. 
 
 * Thatcher v. Gt. W. R., 4 U. C. C. P 543. 
 
180 DUE CARE. 
 
 " I think that it was in that case that Chief 
 Justice Macaulay remarked, that the accident 
 having happened unaccountably, and without any 
 proximate or active cause to account for it, consti 
 tuting as the cases say some evidence of negli 
 gence, it rested with the company to explain and 
 reconcile it with perfect innocence on their part. 
 It has been held, too, in England, that the plain 
 tiff is not bound to show specifically in what the 
 negligence of the company consisted ; but that if 
 some inevitable fatality caused the accident, it is 
 for the company to prove it. 1 In New York, too, 
 the same view is taken." 2 
 
 " Wai, stranger, what is yer law about this yer 
 in the old country ? Not that I care three shakes 
 of a dead possum s tail about the old country, and 
 all yer lawyers and judges with their horse-tail 
 wigs, but still I calkerlate I kind o like to know 
 what they do say on this here point ; as it appears 
 to me that the great Amerikin eagle has got rather 
 mixed up." And to add emphasis to his query, 
 our friend of the land of wooden nutmegs fired 
 from between his teeth a perfect feu dejoie of ex 
 tract of nicotine. 
 
 Thus appealed to, I cleared my throat, pulled 
 up my shirt-collar, crossed my legs, assumed as au 
 thoritative an expression of countenance as Dame 
 Nature ever permits me to do, and thus began : 
 
 1 Skinner v. London B. & S. C., 5 Ad. & E. (N. S.), 747. 
 McPadden v. N. Y. C., 44 N. Y. 478. 
 
DUE CARE. 181 
 
 So long ago as the clays of Sir James Mansfield 
 it was held l that there is a decided difference be 
 tween a contract to carry goods and one to carry 
 passengers. In the former case the carrier is lia 
 ble for his freight in any event, but he does not 
 warrant the safety of his passengers. His under 
 taking as to them extends no further than this, 
 that as far as human care and foresight can go 
 he will provide for their safe conveyance. So, if 
 the breaking of a coach is purely accidental the 
 injured traveller will have no remedy for the mis 
 fortune he has encountered. The contract made 
 by a general carrier of passengers is to take due 
 care to carry his living freight safely ; and it does 
 not amount to a warranty that the carriage or car 
 shall be in all respects perfect for its purpose, i. e., 
 free from all defects likely to cause a catastrophe, 
 although those defects were such that no skill, care, 
 or foresight could have detected their existence. 2 
 The obligation to use all due and proper care is 
 founded on reasons obvious to any one with a 
 semi-optic ; but to impose on the carrier the bur 
 den of a warranty that everything he necessarily 
 uses is absolutely without spot or blemish and free 
 from defects likely to cause peril when from the 
 nature of things defects must exist which no skill 
 can detect, and the effects of which no care or 
 foresight can avert would be to compel a man 
 
 * Christie v. Griggs, 2 Camp. 79. 
 
 2 Readhead r. Midland Rw., L. R.,4 Q. B. 379, Ex. Ch. ; alsoj L. R., 2 Q. B. 
 412, and the cases therein cited. 
 
182 DUE CARE. 
 
 by implication of law and not by his own will to 
 promise the performance of an impossible thing, 
 and would be directly opposed to the maxims of 
 law, Lex non cogit ad impossibilia, 4 Nemo tene- 
 tur ad impossibilia. [Here the audience coughed.] 
 4 Due care, however, undoubtedly means (having 
 reference to the nature of the contract to carry) 
 a high degree of care, and casts on carriers the 
 duty of exercising all vigilance to see that what 
 ever is required for the safe conveyance of their 
 passengers is in fit and proper order. But the 
 duty to take due and proper care, however widely 
 construed, however vigorously enforced, will not, 
 as that man Readhead sought to do, subject a 
 railway company to the plain injustice of being 
 compelled by law to make reparation for a disaster 
 arising from a latent defect in the machinery which 
 they are obliged to nse, which no human skill or 
 care could have prevented or detected, or eye de 
 scried unless of l the patent double million mag- 
 nifyin gas microscopes of hextra power kind to 
 which Mr. Weller, Jr., refers. In that case, the 
 accident was caused by the breaking of the tire of 
 one of the wheels of the carriage, owing to a 
 latent defect in it, which was not attributable to 
 any fault on the part of the manufacturers, nor 
 was it discoverable previously to the breakage. 
 The rule laid down in that case (Readhead s) 
 seems to be that although the carrier of passen 
 gers may be responsible for deficiencies caused by 
 
DUE CARE. 183 
 
 want of skill or care in the manufacture of the 
 carriages used, he is not to be so held when the 
 defect could not have been avoided in the making, 
 or detected on examination. It is so extremely 
 improbable that such a case should happen, that 
 the practical difference between this and the New 
 York rule of absolute responsibility 1 is not of much 
 importance, although the theoretical difference is. 
 But the rule in New York does not seem to be fully 
 approved of even on this side of the Atlantic. 2 
 The truth seems to be that carriers of persons 
 must be held to the utmost degree of care, vigi 
 lance, and precaution, but not to such a degree of; 
 vigilance as would be wholly inconsistent with the 
 mode of conveyance adopted and render it im 
 practicable. Nor is the utmost degree of care 
 which the human mind is capable of imagining 
 required. Such a rule would require such an ex 
 penditure of money and employment of hands so 
 as to render everything safe, as would prevent all 
 persons of ordinary prudence from engaging in 
 that kind of business. But the rule does necessi 
 tate that the highest degree of practicable care 
 and diligence that is consistent with the mode of 
 transportation adopted, should be used." 3 
 
 I stopped ; one universal sigh of relief uprose 
 
 1 Alden v. New York Central Rw., 26 N. Y. 102. 
 
 2 McPadden v. N. C., 44 N. Y. 478 ; Meier v. Perm. Rw., 64 Perm. St. 225, 
 and Ingalls v. Bills, 9 Met. 1, where the court said, " If the injury arise 
 from some invisible defect which no ordinary test will disclose, the carrier 
 is not liable. 
 
 Her v. Talbot, 23 111. 357. 
 
184 DUE CARE. 
 
 from those of my listeners who were not nodding 
 approvingly from the borders of Dreamland. The 
 Yankee said : 
 
 " Wai, stranger, that was a yarn. I guess I 11 
 go and have a smoke, and see if I can calkerlate 
 what in blazes you did mean by till that long 
 pow-wow." And he departed. 
 
 " I think," said the juror, " that the law ought 
 to be the most stringent possible in order to put a 
 stop to such barbarous and inhuman sacrifice of 
 multitudes, such horrible mangling of bodies and 
 limbs, such frightful cases of burning alive and 
 scalding to death that have occurred so frequently 
 of 1*." 
 
 " Yes, I hope that the day is not very far dis 
 tant when all our courts will hold, that all who 
 undertake the transportation of passengers by the 
 dangerous element of steam, and with the great 
 speed of railway trains, are responsible for the use 
 of every precaution \vhich any known skill or ex 
 perience has yet been able to devise, and that 
 passengers need not judge for themselves how 
 many of these precautions it is safe to forego." 
 
 " But," urged another, " people now-a-days 
 wish cheap and rapid travelling in all directions 
 and everywhere." 
 
 " Suppose they do ; we do not allow monoma 
 niacs or brigands to commit suicide or murder 
 without interference, because it is their pleasure 
 
 l Redfield on Railways, vol. ii., p. 237. 
 
DUE CARE. 185 
 
 or their interest to do so ; and I see no good rea 
 son why railway passengers or railway managers 
 should be allowed to roast a hecatomb in human 
 sacrifice, because it seems desirable or convenient 
 to the one or the other class concerned in the im 
 molation, or because the one class demands and 
 the other consents, to use a mode of transportation 
 which inevitably produces these results." 
 
 " Ah," said a lady, " I fear these dreadful acci 
 dents will continue until every train is compelled 
 to carry a director of the company, or a general 
 manager, upon the cow-catcher ; experience will 
 then soon induce them to be a little more careful 
 of the bodies and lives of others." 
 
 " But, sir ! " said the scientific gentleman, a 
 precise man of figures, " I fear you exaggerate 
 when you speak of hecatombs of sacrifices. I be 
 lieve that in proportion to the numbers carried 
 the accidents to passengers in the good old days of 
 stage-coaches were, as compared with these days 
 of railway dispensation, about as sixty to one. 
 Reliable statistics in France prove this. Figures, 
 which you know are proverbial for their truth, 
 show that absolutely more travellers were yearly 
 killed and injured, without fault of theirs, fifty 
 years ago on stage-coaches, than are now killed 
 on the cars. According to the Report of the 
 Board of Trade of Great Britain and Ireland, out 
 of all the 480,000,000 of journeys taken by pas- 
 
 i Redfield on Railways, vol. ii., p. 238. 
 
186 DUE CARE. 
 
 sengers by rail in the British Isles in 1874, only 
 212 people were killed, and 1,990 injured not 
 fatally ; so that you can easily see only one soli 
 tary traveller was killed to every 2,274,881 who 
 followed in the triumphant train of the iron horse, 
 and only one injured to every 242,301 passengers.* 
 
 " You speak only of passengers," said a listener. 
 " 1 presume far more employees were killed dur 
 ing that time." 
 
 " Certainly. Only 212 passengers were killed 
 that year while as many as 788 employees were ; 
 and of the injured ones 1,990 paid for the privi 
 lege, while 2,815 were paid for running the risk : 
 and of these mangled ones many had only them 
 selves to blame. Sir John Hawkshaw, an author 
 ity on these matters, recently asserted that rail 
 way accidents were fewer now than ever : that in 
 fact, on an average, a man might travel 100,000 
 miles each year for forty years, and the chances 
 would be slightly in favor of his not receiving the 
 smallest scratch, unless he ran into danger of his 
 own accord." 
 
 " You might almost as well at once assert that 
 it is less dangerous to travel by rail than to stay 
 at home," I remarked. 
 
 " That very statement was officially made in 
 France some years ago, and supported by the 
 proof, that while ten people were killed on the rail, 
 fourteen died at home from falling over carpets, 
 and having their garments catch fire." 
 
DUE CARE. 
 
 187 
 
 " All that may be true enough of England, or 
 Europe ; but I should think that it was widely 
 different in America," I replied. 
 
 " Of course it must be admitted that, taken as 
 a whole, the dangers incident to railway travelling 
 are materially greater in America than in any 
 country of Europe. Still the destruction of life 
 and limb is nothing frightful, the wonder rather 
 is that so few are hurt. Perhaps you will not be 
 lieve it, yet the truth of the fact remains, that in 
 the year 1874, throughout the whole of Massachu 
 setts, but one passenger was killed 011 the cars 
 through an accident to which his own carelessness 
 did not contribute ; while in the same year of grace, 
 in the city of Boston alone, fifteen people were 
 killed from falling down stairs, twelve by falling 
 out of windows, and seventeen were run over by 
 carriages and fatally injured." 
 
 "But perhaps, that was an exceptional year ! 
 " Let us take four years then, from September, 
 1870, to the same month of 1874 : in that time 
 the railroads disposed of 635 persons, all told, pas 
 sengers, employees, trespassers * in Massachu 
 setts ; and in Boston during the same years there 
 were 1,050 accidental deaths ! The returns for 
 the last fifteen years show, that in Massachusetts 
 only 39 passengers were killed, while 250 were 
 injured, but not fatally, from causes over which 
 they had no control : that is less than one killed 
 to each 8,900,000 travellers, and about one in each 
 
188 DUE CARE. 
 
 1,400,000 injured. The statistics for that State 
 would appear to indicate that if one chanced to be 
 born on a train and remained there travelling 
 500 miles a day, he would, with average good for 
 tune, be about two hundred and twenty years old 
 before being involved in any accident resulting in 
 death, or personal injury." 
 
 " That is quite long enough, since Methusaleh 
 is no more." 1 
 
 i See " Our Railroad Death-rate," in Atlantic Monthly for February, 1876, 
 by C. F. Adams, Jr. 
 
ACCIDENTS TO TRAVELLERS. 189 
 
 CHAPTER XIII. 
 
 ACCIDENTS TO TRAVELLERS. 
 
 Standing on Platforms of Cars. Room and Seats to be Furnished. 
 Over-crowding. 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. 
 
 OUR Connecticut friend went out of the car and 
 stood on the platform, in defiance of the notice 
 posted up on the door forbidding 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, an omniv 
 orous, breeches-wearing biped, balanced himself on 
 his long slender legs and stretched forward 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 fragile body, but unfor 
 tunately his foot rested partly on the rail, and the 
 wheel of the car badly crushed his big toe. The 
 violent ear-piercing howls that issued from his to 
 bacco-seasoned throat brought assistance very soon, 
 
100 ACCIDENTS TO TRAVELLERS. 
 
 and he was speedily helped back into the car ; his 
 damaged pedal member was dressed by a young 
 member of the ^Esculapian fraternity who chanced 
 to be on board and seemed eager to show his sur 
 gical skill. 
 
 The injured man soon became violent in his de 
 nunciations of the carelessness of the company, in 
 his threats of vengeance in the form of suits for 
 damages. He was, however, suddenly checked in 
 the outpouring of the vials of his wrath by one of 
 the passengers remarking : 
 
 " Perhaps you do not know that in these hyper 
 borean 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 viola 
 tion of the printed regulations posted up conspicu 
 ously, and where there is proper and ample ac 
 commodation for the passengers inside the car." 1 
 
 " And there is a similar statute in New York 
 State," added another. 2 
 
 " Yes," I said, " no one can recover for an in 
 jury of which his own negligence was in the whole, 
 or in part, the proximate cause." 3 
 
 " Wai, but the old conductor saw me thai* and 
 did n t say nothink agin it," quoth the wounded 
 man. 
 
 " That makes no difference. 4 If there had been 
 
 1 Railway Act, 1838, s. 20, sub-sec. 13 (Canada). 
 
 2 Redfield on Railways, vol. ii., p. 252. 
 
 3 Robinson v. Cone, 22 Vfc. 213 ; Butterfield v. Forrester, 11 East, 60. 
 * Higgins v. N. Y. & Harlem Rw., 2 Bosw. 132. 
 
ACCIDENTS TO TRAVELLERS. 191 
 
 no notice up you might get something out of 
 them." i 
 
 " 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 out 
 side, and whether the fact of his disregarding it 
 contributed to the injury ; and they having failed 
 to find these facts, the Court of Appeals let the 
 plaintiff keep the $10,000, awarded him." 2 
 
 " 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 
 persons or property of other passengers, or urge 
 them to give up half a seat, or even a whole one, 
 needlessly occupied by them ; 3 that is the duty of 
 the conductor ; nor is one obliged to sit in the 
 smoking car." * 
 
 " But," asked a lady, " should a passenger go 
 through all the train searching for a place wherein 
 to bestow her weary frame ? " 
 
 " No ; it is no compliance with the duty of the 
 company to provide proper accommodation, that 
 
 1 Colcgrove v. N. Y. & N. II. Rw., 6 Duer, 382. 
 
 2 Zemp v. W. & M. Rw., 9 Rich., 84. 
 
 3 Robinson r. Fitchburg & Worcester Rw., 7 Gray, 92 ; Willis v. Long Island 
 Rw., 34 N. Y. 670 ; Bass v. C. & N. W. Rw., 36 Wis. 461. 
 
 4 Bass v. C. & N. W. Rw., supra. 
 
192 ACCIDENTS TO TRAVELLERS. 
 
 there is sufficient room in a carriage remote from 
 the place where the passenger was allowed to en 
 ter. 1 C. J. Coleridge once remarked in the hear 
 ing of a friend of mine, that there may be no neg 
 ligence in the company s servants allowing too 
 many persons to get into a carriage, as it would be 
 difficult at all times to prevent it, and perhaps 
 there would be no help for it until the arrival at 
 the next station. But permitting an extra num 
 ber to remain in the car and to continue to impose 
 undue restraint and discomfort upon the other pas 
 sengers is evidence of negligence ; and companies 
 should have a sufficient number of attendants at 
 each station to see that their cars are not over 
 crowded." 2 
 
 " How would it be where a passenger is in the 
 baggage car with the knowledge of the conductor, 
 and is there injured?" asked one. 
 
 " It was decided in Canada, in such a case, that 
 the traveller could recover damages. There a 
 man went into the express company s compart 
 ment (which was not intended for passengers, but 
 whither they oft times resorted to smoke the pipe 
 of peace) : a notice was usually put upon the in 
 side of the doors of the passenger cars and on the 
 outside of the door of the baggage car, forbidding 
 travellers to ride in the latter, but it was not 
 shown that it was there on that particular day ; 
 
 i Willis v. Long Island Rw., 34 N. Y., 670. 
 
 a Jaeksor :. Metropolitan R\v., L. R., 10 C. P. 49. 
 
ACCIDENTS TO TRAVELLERS. 11)3 
 
 the conductor passed through the car twice while 
 the man was in there and made no objection. By 
 a collision, this Watson had an arm broken, while 
 none of those in the passenger car were much hurt, 
 and the court held that even if W. was aware of 
 the notices, yet the company were not thereby 
 excused, under the circumstances. 1 But where a 
 man rode free of charge on an engine, after the 
 engineer had told him that it was against the rules 
 for him to do so, it was held that he was a wrong 
 doer, and could not recover for injuries sustained 
 while lie bestrode the iron horse, as the consent of 
 the engineer conferred no legal right. 2 If, how 
 ever, passengers are carried, and charged fare, in 
 the caboose car (whatever that may be) of freight 
 trains, they have the same right to be conveyed 
 safely as if luxuriating in a gorgeous Pullman 
 palace car, 3 and so where one rides on a gravel 
 train. 4 And where the conductor, though against 
 the rules, allowed a passenger to travel in a freight 
 car, charging him a first-class fare, the company 
 were held to have incurred the same liability 
 for his safety as if he had been in a regular pas 
 senger train. 5 Ditto where the conductor of a coal 
 
 1 Watson v. Northern Rw. Co., 24 U. C. Q. B. 98; sec also, Carroll v. N. Y. 
 & N. H. Rw., 1 Duer, 571, where a man took a seat in the post office depart 
 ment of baggage car with the assent of the conductor. 
 
 2 Robertson v. N. Y. & E. Rw., 22 Barb , 91. 
 
 3 Edgerton v. N. Y. & II. Rw., 39 N. Y. St. 227 ; Indianapolis, etc., v. Beaver, 
 41 Ind. 497. 
 
 4 Lawrenceburgh & Upper Miss. Rw. v. Montgomery, 7 Ind. 474. 
 
 5 Dunn v. G. T. Rw., 10 Am. Law Reg. (N. 8.), 615. 
 W. & R. OF T. 13 
 
194 ACCIDENTS TO TRAVELLERS. 
 
 train invited a man to take a ride and charged 
 him naught." 1 
 
 " That may be true enough down east, but out 
 west if a passenger takes a freight train he takes 
 it with the increased risk and diminution of com 
 fort incident thereto, and if it is managed with the 
 care requisite for such trains, it is all he has a 
 right to expect or demand ; " 2 remarked one who 
 hailed from the city of Widow O Leary s celebrated 
 cow. 
 
 " By the way," said a gentleman, who had been 
 listening attentively to all the conversation ; " can 
 any of you gentlemen, who seem to have the whole 
 law appertaining to railways at your finger s ends 
 or the tips of your tongues (whichever expression 
 be the more correct or implies the greater knowl 
 edge), tell me whether it is safe for one to prom 
 enade from one end of the train to the other for 
 the sake of exercise or to see who is on board ? 
 Down in New York State the jury must decide 
 whether it is right so to do, in order to find a 
 seat." 3 
 
 " Out west," said the Chicagoian, " It has been 
 decided that passengers have no right to pass from 
 car to car, unless for some reasonable purpose ; 4 
 and heaven only knows what twelve enlightened 
 men from the body of the country would, in their 
 wisdom, deem to be reasonable." 
 
 1 Eaton v. Del., Lack., & W. Rw., 1 Am. Law Record, 121; 57 N. Y. S82. 
 
 2 Chicago, B., & Q. Rw. v. Ilazzard, 26 111. 373. 
 * Mclntyre v. N. Y. Central Rw., 37 N. Y. 287. 
 
 < Galena & Chicago Rw. r. Yarwood, 15 111. 468. 
 
ACCIDENTS TO TRAVELLERS. 195 
 
 " Humph, you don t seem to have a very high 
 opinion of juries," said the representative of that 
 class, who had already joined in the conversation. 
 
 " 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 inflicted 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 dis 
 agreeing 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 junc 
 ture 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 pas 
 sengers 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 
 
196 ACCIDKNTS TO TRAVELLERS. 
 
 the newsboy, who in passing from one car to an 
 other was thrown to the ground and had a leg 
 badly crushed ; the other was a beautiful little 
 child of some three or four summers who had 
 been playing with a lady and was knocked vio 
 lently down, and in falling hit his head against 
 the side of a seat. From his pure white forehead 
 a purple stream was slowly trickling, dyeing 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 Paris 
 ians 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 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 
 jury gave it fl^SOO; 1 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 
 
 i Redfield on Railways, vol. ii., p. 243, n. ; Rauch v. Lloyd, 31 Penn. St. 
 
ACCIDENTS TO TRAVELLERS. 197 
 
 afresh, as she thought she had lost this golden 
 opportunity. 
 
 " 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 
 carry you and the little dear safely." l 
 
 "Ah!" sighed the mother, "if that nasty 
 woman had only held him 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 there 
 fore willing to enlighten her ladyship as much as 
 possible, especially as I make it a constant prac 
 tice 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 dis 
 bursements ; so I said : 
 
 " The misconduct of one assuming to take 
 charge of a child, but to whom it has not been 
 entrusted, will not preclude a recovery on its part 
 
 1 Austin v. Ot. Western Rw., L. R., 2 Q. B. 442. 
 
198 ACCIDENTS TO TRAVELLERS. 
 
 for the negligence of the company. 1 In fact 
 many of the American courts hold that no amount 
 of negligence on the part of parents and guar 
 dians will excuse those injuring a child; 2 espe 
 cially, if the action for such injury is brought 
 by the child and not by the parents to recover 
 damages for the death of their little one." 3 
 
 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." 4 
 
 " Thank goodness we are not near the Hub of 
 the universe now," I exclaimed, sharply. 
 
 " And very much the same rule is laid down 
 in England, and in the States of Maine, New 
 York and Indiana. 5 In England where a child 
 five years old was in the charge of his grand 
 mother and was injured by a train while crossing 
 the track, it was held that he was so identified 
 with his old granny that on account of her careless- 
 
 1 N. Penn. Rw v. Mahoney, 57 Penn. St. 187. 
 8 Wharton on Negligence, 310. 
 
 3 N. P. Rw. v. Mahoney, supra; B. & I. Rw. v. Snyder, 18 Ohio St. 399. 
 Holly v. Boston Gas Light Co., 8 Gray, 123; Wright v. Maiden & M. Rw., 
 4 Allen, 283. 
 5 Wharton on Negligence, 311 
 
ACCIDENTS TO TRAVELLERS. 199 
 
 ness an action in his name could not be main 
 tained against the company. 1 And where a pass 
 ing train cut off the leg of a three and a half 
 year old child, the court considered that the com 
 pany were not responsible, unless it was shown 
 that he had strayed upon the track through their 
 negligence or default. 2 And in the United States 
 it has been held that to allow an infant, four years 
 old, to wander at its own sweet will in the public 
 streets, is such negligence on the part of the 
 parents as will prevent the child recovering for 
 any damages sustained. 3 
 
 " But not if the child were six, and the street 
 a quiet one " 4 I broke in, but my adversary 
 continued : 
 
 " Or to suffer a child of two summers to cross 
 a street traversed by a horse-railway." 5 
 
 " But a five year old may cross such a street," 6 
 I again broke in. 
 
 " Or even to cross a street and go a few yards 
 down to its house." 7 Here he stopped. 
 
 " I have read somewhere that in England they 
 take more pains to protect an oyster than a child," 8 
 remarked one of the listeners. 
 
 Waite v. N. E. Rw., El. Bl. & El. 719. 
 
 Singleton v. Eastern C. Rw., 7 C. B. N. S. 287. 
 
 Mangam v. Brooklyn, etc., Rw., 36 Barb. 230. 
 
 Cosgrove r. Ogden, 49 N. Y. 265 ; see Karr v. Parks, 40 Cal. 188. 
 
 Wright v. Maiden & M. Rw., 4 Allen, 283. 
 
 Barksdull v. N. 0. & C. R., 23 La. An. 180. 
 
 Callahan v. Bean, 9 Allen, 401. 
 
 Wharton on Negligence, 312. 
 
200 ACCIDENTS TO TRAVELLERS. 
 
 "Never mind his croaking, madam," I went 
 on. " These cases he mentions do not apply to 
 you. If they did it would be visiting the sins of 
 the fathers upon the children to an extent not 
 contemplated by the decalogue (as a judge once 
 remarked), 1 and, besides, on this side of the water 
 a parent may suffer a child four years old to cross 
 a street by itself to school ; 2 or wander about a 
 station, 3 without freeing the company from liabil- 
 ity." 
 
 " Ditto down where I growed ; " 4 interrupt- 
 ingly ejaculated our Connecticut friend. 
 
 " Parents," I added, " need only be ordinarily 
 careful in not allowing their small fry to get into 
 danger. 5 But I must go and see the newsboy." 
 
 Off I started instanter 
 
 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 bandaged. The pallor spread over his 
 countenance, the beads of perspiration on his brow, 
 and his closely pressed lips, told that his sufferings 
 were great ; but with Spartan courage he re 
 pressed every voluntary sign of pain. A group of 
 rough, yet tender men were gathered round him, 
 
 1 Lannen v. Albany Gas Light Co., 46 Barb. 264. 
 
 2 Lynch v. Smith, 104 Mass. 52. 
 
 3 Stout r. S. C. & P. Rw., 11 Am. Law Reg. (N. S.), 226 
 
 4 Daley r. Norwich & W. Rw., 26 Conn. 591. 
 
 P. A. & M. Rw. v. Pearson, 72 Penn. St. 169 
 
ACCIDENTS TO TRAVELLERS. 201 
 
 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 was a widow with no stay nor 
 support save the earnings of her boy. 
 
 " I say, mister," said one of the party to me, 
 " I kind of calculate 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 
 a ticket can sue the railway for damages." 
 
 I replied, " Every person is a passenger and en 
 titled to be carried safely (so far as due care will 
 provide for his safety), who is lawfully on the 
 train ; l and the onus is on the company to prove 
 affirmatively that he is a trespasser. 2 Any one 
 permitted to ride in a train as a passenger is en 
 titled to demand and expect the same immunity 
 from peril whether he pay for his seat or no ; the 
 confidence induced is a sufficient legal considera 
 tion to create a duty in the performance of the 
 service undertaken ; 3 so, if one is injured by the 
 culpable negligence or want of skill of the com 
 pany s servants he is entitled to recover although 
 he is a dead-head. 4 Thus, a newspaper reporter 
 travelling on a free ticket even if granted to 
 another brother of the press ; 5 the president of 
 of one company riding by request of the president 
 
 Gt. Western of Canada v. Braid, 1 Moore P. C. (N. S.), 101. 
 Penn. Rw. Co. v. Books, 7 Am. Law Keg. (N. S.), 524. 
 Coggs v. Bernard, Holt, 13. 
 Ohio & Miss. Rw. v. Muhling, 30 111. 9. 
 
 Gt. Northern Rw. v. Harrison, 12 C. B. 576; Gillenwater v. Madison & 
 Indian Rw., 5 Ind. 340. 
 
202 ACCIDENTS TO TRAVELLERS. 
 
 of another; 1 a mail-clerk travelling in charge of 
 the mail bags, 2 and a child for whom no fare has 
 been paid; 3 were all held entitled to damages 
 when injured. Nor though this is rather be 
 side the matter does the fact that the train has 
 been hired for an excursion excuse the negligence, 
 or remove the liability of the company." 4 
 
 " 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 exemp 
 tion from all responsibility for losses accruing to 
 passengers from the negligence of their servants, 
 unless, indeed, it arise from their fraudulent, reck 
 less or wilful misconduct ; 5 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 c whereby the holder assumes all 
 
 1 Phil & Read. Rw. r. Derby, 14 How. (U. S.), 483. 
 
 2 Collett v. London & N. W. R., 16 Ad. & El. (N. S.) 984; Nolton v. West 
 ern R., 10 How. Pr. R. 97. 
 
 s Austin r. Gt. Western Rw., L. R., 2 Q. B. 442. 
 
 * Skinner v. London, B., & S. C. Rw., 5 Ex. 787 ; Cleveland, C. & C. Rw. 
 v. Terry, 8 Ohio (N. S.), 570 ; but see Peoria Br. Ass. . Loomis, 20 111. 235. 
 
 B Welles v. N. Y. C , 26 Barb. 641 ; Indiana Central Rw. v. Mundy, 21 Ind. 
 48. 
 
ACCIDENTS TO TRAVELLERS. 203 
 
 risk of accidents and expressly agrees that the 
 company shall not be liable under any circum 
 stances, 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) 1 for which they would otherwise 
 have been liable. That has been held in Canada ; 2 
 in New York State, 3 in other States, and in Eng 
 land the company is not even liable for wilful or 
 gross negligence. 4 The words " travel at his own 
 risk " include all the incidents connected with the 
 journey; all those risks which arise during the 
 transit and until the transit is actually at an end, 
 are guarded by these words. So if a man, whose 
 ticket is thus marked after leaving the train and 
 while going off the company s premises fall over 
 a parapet and is injured, he will not be able to 
 recover ; 5 I mean to recover damages. But of 
 course such an agreement does not extend to an 
 independent wrong, as an assault or false impris 
 onment, or any rights as to criminal proceedings, 6 
 
 1 Ind. Cent. Rw. v. Mundy, 21 Ind. 48; Welles v. N. Y. C. Rw., 26 Barb. 
 641 ; Bissell v. N. Y. C., 29 Barb. 602 ; 111. C. R. v. Read, 37 111. 484. 
 
 2 Sutherland . Gt. W. Rw., 7 U. C. C. P. 409 ; Woodruff v. Q. W. R., 18 
 U. C. Q. B.420. 
 
 s Welles v. N. Y. C., 26 Barb. 641. 
 
 4 McCawley v. Furness Rw., L. R., 8 Q. B. 57. 
 
 5 Gallin v. L. & N. W. Rw., L. R., 10 Q. B. 212; Hall v. N. E. Rw., L. R. 
 10 Q. B. 437. 
 
 o Ibid. 
 
204 ACCIDENTS TO TRAVELLERS. 
 
 nor where tlie traveller is carried under an agree 
 ment between the company and some third party 
 which says nothing about the traveller taking the 
 risk himself." 1 
 
 " 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 projecting 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 agreement 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." 2 
 
 " Do you mean to tell me," cried a listener, in 
 dignantly, " 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. But if you want 
 to know anything more on the subject call on me 
 at my office, and I shall be most happy to attend 
 to you," I added, as I left the car. 
 
 I now retired to my berth in the Pullman, 
 where the company was bound to keep both my- 
 
 1 Woodruff v. G. W. B., 18 U. C. Q. B. 420. 
 
 2 Alexander r. Toronto & N. Rw., 83 U. C. Q. B. 474; S. C., on appeal, 35 
 U. C. Q. B. 453. 
 
ACCIDENTS TO TRAVELLERS. 205 
 
 self and my goods in safety while I slept. 1 I was 
 scarcely settled there ere I heard loud and angry 
 voices proceeding from the front end of the car, 
 and recognized our Hamitic conductor s tones in 
 the words 
 
 44 1 tell you, sah, this is a sleeping car, and you 
 can t come in without a ticket." 
 
 " Slmre and I had a ticket, and its after slap- 
 ing 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, 
 
 44 Och, by jabers, it is a hard thing to remem 
 ber that, though I know I was there at the time ; 
 and my ould mother, rest her bones, tould me that 
 I was born 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 
 44 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 
 
 i Palmater v. Wagner, Marine Ct. N. Y. 1875. 
 
206 ACCIDENTS TO TRAVELLERS. 
 
 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, and where I soon showed 
 myself to be "a forked straddling animal with 
 bandy legs," as Dean Swift puts it ; or as Sir 
 John Falstaff, Knight, would say, " for all the 
 world like a forked radish with a head fantasti 
 cally carved upon it with a knife." 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 207 
 
 CHAPTER XIV. 
 
 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 An Inefficient Line. -Passengers hurt. Employees killed. - Lord 
 Campbell s Act. Compensation for Death. Solatium for Feel 
 ings Wounded. Scotch Law. American Law. Hen-pecked 
 Husband s Will. The Rule in Massachusetts. In Pennsyl 
 vania. In Maryland. In Canada. - Hard to decide. An 
 nuity Tables. Bad or Diseased. Insured. Children Injured. 
 
 Parents Compensated. Amounts obtained. A Leg at $24,700. 
 
 For what compensated. Chances of Matrimony. Servants 
 in j ured . _ Fellow Servants. Different Companies. Which One 
 to sue. Strangers Act. Greedy Ruminant. 
 
 I HAD fondly hoped that no new points, quirks, 
 or quiddities on railway law would arise in the 
 course of my not very extensive practise for some 
 time to come, so that I might have leisure to pad 
 dle my own little canoes, and issue little billets- 
 doux in the Queen s name to the company on my 
 own account. But alas ! I had scarcely settled 
 down in my office on the day of my arrival at 
 home when my young friend, Tom Jones (to whom 
 I referred in the early pages of this interesting 
 and instructive diary of mine), came rushing in. 
 
 After a considerable amount of small talk, chit 
 chat and mutual inquiries after mutual friends 
 and affairs, and things mutually interesting, Tom 
 exclaimed, " I say, old fellow, I have a couple of 
 
208 INJURIES TO PASSENGERS AND 1-::,IPLOYEE9. 
 
 matters that are bothering me, and I want your 
 advice thereon." 
 
 By the way, nearly all Tom Jones matters 
 bothered him, and when they bothered him he 
 bothered me, for he was not one of those who 
 
 Make law their study and delight, 
 Read it by day and meditate by night. 
 
 "All right," I said, extending my left digits 
 towards him for an honorarium. 
 
 " Oh, I am not going to pay you," he remarked 
 coolly, " so you need not expect it." 
 
 " Ah, well," I returned, quietly and with the 
 air of an ill-used man, " I shall do like old Thur- 
 low did, he could never come to a decision without 
 a fee, and so when he had to decide upon some 
 matter for himself he would take a guinea out of 
 one pocket and put it into another. Now what 
 are your questions ? " I always preferred answer 
 ing his queries to lending him books, for although 
 he was a miserable hand at accounts he was a 
 most excellent book-keeper. 
 
 " I suppose you know," began T. J., " that a 
 short time ago, owing to a heavy storm, part of the 
 line of the Blank Railway gave way " 
 
 " That is primd facie evidence of the insuffi 
 ciency of its construction ; and a company is bound 
 to build its works in such a manner as that they 
 will be capable of resisting all extremes of weather, 
 which in the climate through which the line runs 
 might be expected, though rarely, to occur. So 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 209 
 
 say that august assembly, the Judicial Committee 
 of the Privy Council." 1 
 
 " 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 dam 
 ages? I mean under what Act do you proceed ? " 
 
 " Under what in England is called Lord Camp 
 bell s Act (9 & 10 Vic. ch. 93), the Canadian 
 Act 2 is a transcript of that ; and a similar statute 
 has been introduced into most of the States of the 
 Union, to obviate that most heathenish of maxims 
 actio personalis moritur cum personam. Our Act 
 provides that when death shall be caused by the 
 wrongful act, neglect or default, of any person, 
 such as would (if death had not ensued) have en 
 titled the party to an action, in every such case 
 an action may be maintained by the executor or 
 
 1 Gt. Western Rw. v. Fawcett; Same v. Braid, 1 Moore, P. C. C. (N. S.), 
 101; 9,Tur. (N. S.), 339. 
 
 2 Con. Stat. Can. ch. 78. 
 W. & R. OF T. 14 
 
210 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 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 tlie party himself, or those in 
 charge of him, contribute directly to the injury, 
 there can be no remedy. 1 Have twelve months 
 elapsed since the death ? " 
 
 u No," was the response. 
 
 " All right." 
 
 " What damages shall I claim ? " 
 
 u Only such as will compensate for the pecuniary 
 loss sustained," 2 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 in 
 quire into the degree of mental anguish which 
 each member of a family suffers from a bereave 
 ment, then not only the child without filial piety, 
 but a lunatic child and one of very tender years, 
 and a posthumous child, on the death of the 
 father, although getting something for pecuniary 
 loss, would not come in pari passu with other 
 
 1 Willets r. Buffalo & Rochester Rw., 14 Barb. 385, where a lunatic was 
 loft by himself and in consequence was killed. 
 
 2 Blake v. Midland Rw., 18 Q. B. 93 ; Bradburn v. Q. W. R-, L.R., 10 Ex. 3. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 211 
 
 children, and would be cut off from the solatium. 
 If a jury were to proceed to estimate the respec 
 tive degrees of mental anguish of a widow and 
 twelve children from the death of the pater-f ami- 
 lias, a serious danger might arise of damages be 
 ing given to the ruin of the defendants : especially 
 would the damages be disastrous if all the rela 
 tives 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 grand 
 daughter, stepson and stepdaughter, not only got 
 compensation for their pecuniary losses, but sola 
 tium s for their shattered affections, blighted ex 
 pectations and broken hearts." 1 
 
 " That is too bad," said Jones, " for I am sure 
 the Scotch law gives a solatium for wounded feel 
 ings, even where the death of the man, instead of 
 being a loss, is a gain to the family, owing to his 
 bankruptcy or dissipated habits." 2 
 
 " Yes," I replied, " but the Scotch are always 
 more liberal than other people ; they grant a sola 
 tium to a man injured in his happiness and cir 
 cumstances by the death of his wife and child, 
 whereas in England a widower will not get any 
 thing unless the death of his spouse causes him 
 some pecuniary loss ; 3 it being a pure question of 
 
 1 Blake v. Midland R\v., 18 Ad. & Ell. (N. S.), 93 ; Pym v. Great Northern 
 Rw., 4 B. & S. (Ex. Ch.), 396. 
 
 2 Ersk. Inst. 592, note 13. 
 
 8 In argument Gillard v. Lancaster & Yorkshire Rw. Co., 12 L. T. 356. 
 
212 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 pecuniary compensation, and nothing more, which 
 is contemplated by the Act. 1 Nor, I believe, can 
 a husband recover in New York State for the 
 death of his wife. 2 But where the damages are 
 for the next of kin, the services of the deceased 
 mother in the nurture and instruction of her chil 
 dren, had she survived, may be properly consid 
 ered. 3 I wonder what is the rule as to the solatium 
 in the Republic let us see." 
 
 So saying, I reached down a most useful book 
 on Railways, by Chief Justice Redfield, of Ver 
 mont, and concerning " the great learning, re 
 search, and power of reasoning displayed " in 
 which, Lord Chief Justice Cockburn speaks with 
 expressions of admiration. 
 
 " Here it is : There seems no doubt, according 
 to the best considered cases in this country, that 
 the mental anguish which is the natural result of 
 the injury, may be taken into account, in estimat 
 ing damages to the party injured in such cases, 
 although not of itself the foundation of an ac 
 tion. " 4 
 
 " 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 
 
 1 Armsworth v. Southeastern Rw. Co., 11 Jurist, 758. 
 
 2 Lucas v. N. Y. C., 21 Barb. 245; Worley v. Cincinnati, II., & D. Rw., 
 1 Handy, 481. 
 
 3 Tilley v. Hudson River Rw., 29 N. Y. 252. 
 
 4 Canning v. Williamstown , 1 Gush. 451; Morse v. Auburn & Syracuse 
 Rw., 10 Barb. 623 ; so in California, Fairchild v. California Stage Co., 13 Cal. 
 599. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 213 
 
 loss deeply, whereas the other is evidently one of 
 those viders against whom Samivel Veller, 
 Senior, would have warned his hopeful boy." 
 
 " Both are entitled to the same compensation, 
 although one was as closely joined in sympathy 
 and spirit to her lost spouse as was Chang to Eng, 
 in the flesh ; and the other was the Elizabeth re 
 ferred to in the will of that unfortunate wretch 
 who died in London, in 1791. I must read you 
 that will, though it is rather beside the subject, 
 for it is a perfect model for hen-pecked husbands 
 to follow ; here it is. fc Seeing that I have had the 
 misfortune to be married to the aforesaid Eliza 
 beth, who ever since our union, has tormented me 
 in every possible way ; that heaven seems to have 
 sent her into the world solely to drive me out of 
 it ; that the strength of Samson, the genius of 
 Homer, the prudence of Augustus, the skill of 
 Pyrrhus, the patience of Job, the philosophy of 
 Socrates, the vigilance of Hermogenes, would not 
 suffice to subdue the perversity of her character ; 
 that no power on earth can change her; seeing 
 we have lived apart during the last eight years, 
 and that the only result has been the ruin of my 
 son, whom she has corrupted and estranged from 
 me: weighing, maturely and seriously, all these 
 considerations, I have bequeathed and I do be 
 queath, to my said wife Elizabeth, the sum of one 
 shilling, to be paid to her within six months of my 
 
214 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 death. But to return ; as to damages, I see that 
 in Massachusetts by statute l the passenger carrier 
 is subject to a fine, not exceeding $5,000, to be re 
 covered 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 ; 2 but it 
 is sufficient if one does not die for fifteen minutes, 
 although insensible from the first. 3 In Pennsyl 
 vania, the jury were told to estimate damages 4 by 
 the probable accumulations of a man of such age, 
 habits, health, and pursuits as the deceased, during 
 what would probably have been his lifetime. 4 In 
 Maryland the jury was directed to give such dam 
 ages as would yield the family of the deceased the 
 same support as they would have obtained from 
 the labor of the father during the time lie 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." 5 
 
 " I see," said Tom, who seemed unwilling that 
 I should do all the talking, " that our own Chief 
 Justice Robinson, on one occasion, confessed him- 
 
 1842, c. 89. 
 
 Ilollenbeck v. Berkshire Rw., 9 Gush. 481. 
 Bancroft v. Boston & Worcester Rw., 11 Allen, 84. 
 Penn. Rw. Co. v. McCloskey, 23 Penn. St. 526, 528. 
 Baltimore & Ohio Rw. v. State, 24 Md. 271. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 215 
 
 self utterly at a loss to make a satisfactory compu 
 tation of the amount of damages to be awarded, or 
 of the pecuniary loss sustained by a widow and 
 her children through the death of the head of the 
 house : he said he had no means of determining 
 whether they would have been better off if the 
 father s life had run its natural course, or not ; it 
 was mere conjecture. The father might have be 
 come extravagant or intemperate, and squandered 
 his property ; or from too great eagerness to grow 
 rich, might have lost it by grasping at too much, 
 or might have died from natural causes within a 
 year or a month, leaving his family no better off 
 than he did leave them when carried away by the 
 sad accident. 1 And I think that I would be 
 equally puzzled were I on a jury ; I don t see 
 how in the world a jury, except by drawing lots, 
 can calculate the damages arising from the loss of 
 the income, and of the care, protection, and assist 
 ance of the father." 
 
 " Yes, it must be rather a nice calculation." 
 " Suppose," continued Jones, " there was an ac 
 cident to a train containing an archbishop, a lord 
 chancellor, a bank director, a lunatic, a wealthy 
 but immoral man, and one virtuous but bankrupt, 
 and all these respectable persons came to final 
 grief : how could any ordinary jury estimate the 
 pecuniary value of the conjugal and paternal care, 
 protection, and assistance of each of these." 
 
 1 Secord v. Great Western Bw., 15 U. C. Q. B. 631. 
 
216 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 " You need not put such an unlikely case," I 
 said, " merely suppose that there were together 
 one who 
 
 scorned life s mathematics, 
 Could not reckon up a score, 
 
 Pay his debts, or be persuaded 
 Two and two are always four. 
 
 That another was exact as Euclid, 
 Prompt and punctual, no one more. 
 
 "Still," I added, "these difficult calculations 
 have to be made." 
 
 " But how ? " 
 
 " In England, it has been decided that the dam 
 ages are not to be estimated according to the life 
 of the man, calculated by annuity tables, but the 
 jury should give what they consider a reasonable 
 compensation ; l although, in the United States, it 
 was thought proper for the judge in charging the 
 jury to allude to the expectation of life according 
 to the tables deduced from the bills of mortality: 2 
 and even in England, in such cases, the average 
 and probable duration of the life is a material 
 point, which cannot be better shown than by the 
 tables of insurance companies, who learn it by ex 
 perience. 3 And the probable benefits of the con 
 tinuance of the life of the father, as to the chil 
 dren, is to be estimated with reference to their 
 majority, and as to the widow, with reference to 
 
 1 Armsworth v. Southeastern Rw., 11 Jur. 759. 
 
 2 Smith v. N. Y. & Ilarlem Rw., 6 Duer, 225 ; City of Chicago t. Major, 18 
 111. 349. 
 
 s Rowley v. London & N. W. Rw., 29 Law Times Rep. (N. S.), 180. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 217 
 
 the expectation of life as determined by the 
 tables. 1 Of course, the jury are not to attempt to 
 give damages -to the full amount of a perfect com 
 pensation for the pecuniary injury, but must take 
 a reasonable view of the case, and give what they 
 consider, under all the circumstances, a fair com 
 pensation." 2 
 
 " Would it make any difference were the man 
 of a bad character or diseased ? " 
 
 " If the man had a fatal disease which would 
 be sure to kill him in a short time, the amount of 
 damages given should be less. 3 And as to char 
 acter, the loss is supposed to be of a man as he 
 ought to be. It has been held not to be necessary 
 that the widow, or next of kin, should have any 
 legal claim upon the deceased for support." 4 
 
 " How would it be if he was insured, and by his 
 death the family rather made than lost? " 
 
 " Well, I presume that if the insurance goes to 
 a man s family, it would be a good reason for re 
 ducing the amount of damages. There appears to 
 be only one English case on this point, and that 
 was at Nisi Prius and is not reported at length ; 
 in it Lord Campbell told the jury to deduct from 
 the amount of damages the amount of an insur 
 ance against accidents, and any reasonable sum 
 
 1 Bait. & Ohio Rw. v. State, 33 Md. 542 ; Macon & Western R\v. v. Johnson, 
 38 Ga. 409. 
 
 2 Rowley v. London & N. W. Rw., 29 Law Times Rep. (N. S.), 180. 
 
 3 Birkett v. Whitehaven Junction Rw., 4 II. & X. 732. 
 * Railway Co. v. Barren, 5 Wallace, 90. 
 
218 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 they should think fit in respect of life insurance. 1 
 In a Canadian case, McLean, J., said, that if the 
 interest on the insurance would exceed the annual 
 value of the testator s income while living and 
 exercising his ordinary avocations, it would surely 
 be competent for the company to show that the 
 widow had sustained no pecuniary damages, and 
 that only nominal damages should be given, if in 
 deed any. 2 But, I should say that if the insurance 
 went to some of the family only, the others would 
 still have their right to substantial damages." 3 
 
 " I believe," continued the irrepressible Jones, 
 " that if an injured man settles with the company 
 for a sum of money, that puts an end to the whole 
 matter, and if he afterwards shuffles off this mor 
 tal coil nothing more is to be had." 
 
 " Yes ; once and forever, is the rule, even if the 
 unfortunate makes a mistake and takes too little." 4 
 
 " Can you make money out of the slaughter of 
 children ? " 
 
 " Oh, certainly ; though in England doubts 
 have been suggested as to whether damages were 
 obtainable to compensate for the loss of the ser 
 vices of a child so young as to be unable to earn 
 
 1 Hicks v. Newport A. & II. Rw., mentioned in 4 B. & S. 403 ; see Bradburn 
 . G. W. Rw., L. R. , 10 Ex. 3, where it was held that money received on an 
 accident insurance policy could not be considered in reduction of damages for 
 injuries caused by negligence. 
 
 2 Ferric v. Great Western Rw., 15 U. C Q. B. 517. 
 
 3 Pym v. Great Northern Rw., 4 B. & S. 397, Ex. Ch. 
 
 4 Read v. Great Eastern Rw., L. R., 3 Q. B. 555 ; but see remark of Erie, 
 C. J., in Pym v. Gt. N. Rw., 4 B. & S. 406; and Coleridge, J., in Blake v. 
 Midland Rw., 18 Ad. & El. (N. S.), 93. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 219 
 
 anything ; l but in New York a mother recovered 
 $1,300 for the death of a daughter seven years 
 
 old." 2 
 
 " That was a pretty good figure for a female 
 
 youngster." 
 
 " Yes, as the pecuniary loss is not supposed to 
 be extended beyond the minority of the child. 3 
 In England, however, a father recovered for the 
 loss of a son twenty-seven years old, but unmar 
 ried, who had been accustomed to make occasional 
 presents to his parents. 4 There the old man 
 rather tried to stick it on ; he had a swell funeral 
 and bought crape for the family and wanted the 
 company to pay for them ; the jury said Yea, 
 but the court said Nay. In one case, however, 
 a mourning husband recovered the funeral ex 
 penses of his wife. 5 As a rule, damages of a pe 
 cuniary nature must be shown ; so, where a son 
 was in the habit of assisting his father by carrying 
 round coals for him, it was held that 75 was too 
 much to give the old man for compensation for his 
 death. 6 In an Irish case, where a boy of fourteen, 
 earning no wages and whose business capabilities 
 were valued at six-pence per day, was killed, it 
 
 1 Bramhall v. Lees, 29 Law Times, 111. 
 
 2 Court of Appeals, 14 N. Y. 310. 
 
 s State v. Baltimore & Ohio Rw., 24 Md. 84 ; but see Penn. Rw. v. Adams, 
 55 Penn. St. 499. 
 
 * Dalton v. S. E. Rw. 4 C. B. (N. S.), 296. 
 
 B Redfield on Railways, vol. ii. p. 275. 
 
 6 Franklin v. S. E. Rw. 3 II. & N. 211 ; Duckworth v. Johnson, 4 II. & N. 
 653. 
 
220 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 was considered that the probability of his assisting 
 his mother was good evidence to go to the jury. 1 
 
 " What sums have been given and allowed by 
 the court for the death of the father ? " 
 
 " Well, it was considered that $12,000 was not 
 too much for the widow and three children of an 
 industrious well-to-do farmer ; 2 in an English 
 case XI, 000 was given to the widow, and 1,500 
 to each of eight young children, $65,000 in all ; 3 
 then |1,300 for" that baby girl. 4 But when 
 $20,000 was given as damages for the death of a 
 blacksmith the inventor of a patent plough 
 who was killed at the celebrated Desjardins Canal 
 accident, a new trial was granted, as the court 
 thought the sum enormously excessive. 5 On the 
 other hand, in one case, twelve miserable jurymen, 
 who doubtless would have eagerly skinned a mos 
 quito for the sake of its hide and tallow, gave XI 
 to a poor widow, and ten shillings each to her two 
 fatherless children. 6 So you see the sum goes by 
 the rule of thumb." 
 
 "So it appears," answered my young friend, 
 who sucked in knowledge as a sponge does water 
 only to lose it again. "But some of those are 
 not bad figures." 
 
 " Certainly not ; yet they are by no means as 
 
 Condon v. Great Southern & Western Rw., 16 Ir. C. L. R. 415. 
 
 Secord v. Great Western Rw., 15 U. C. Q. B. 631. 
 
 Pym v. Great Northern Rw., 4 B. & S. 397 Ex. Ch. 
 
 Court of Appeals, 14 N. Y. 310. 
 
 Morley v. Great Western Rw., 16 U. C. Q. B. 504. 
 
 Springett v. Balls, 7 B. & S. 477. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 221 
 
 good as some people have got and had the pleas 
 ure of spending themselves. In one case, a man 
 received $6,000 for a broken leg, which got well 
 in about eight months: 1 another got $24,700 
 (Canada money) for the loss of his leg." 
 
 44 What a leg that must have been a match 
 for Miss Kilmansegg s precious limb, which 
 
 Was made in a comely mould, 
 Of gold, fine virgin glittering gold, 
 As solid as man could make it 
 Solid in foot, and calf, and shank, 
 A prodigious sum of money it sank; 
 In fact, t was a branch of the family bank, 
 And no easy matter to break it. 
 
 All sterling metal, not half-and-half, 
 The goldsmith s mark was stamped on the calf. 
 Twas pure as from Mexican barter. 
 
 T was a splendid, brilliant, beautiful leg, 
 
 Fit for the Court of Scander-Beg, 
 
 That precious leg of Miss Kilmansegg ! 
 
 Exclaimed Tom Jones glowing with poetic fire, 
 his eye in a fine frenzy rolling at the thought of 
 the bawbees. 
 
 44 Cease exhibiting your Hood," I said severely. 
 44 In another case $10,000 was obtained for some 
 thing or other, when if the man had been killed 
 outright his friends would only have got $5,000. 3 
 But in these three cases, new trials were granted, 
 as will always be the way where the damages are 
 
 1 Clapp v. Hudson R. R., 19 Barb. 461. 
 
 2 Batchelor v. Buffalo & Brantford Rw., 5 U. C. C. P. 127. 
 
 3 Collins v. Albany & Sch. Rw., 12 Barb. 492. 
 
222 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 so excessive as to strike every one as beyond all 
 measure unreasonable and corrupt, and as show 
 ing the jury to have been actuated by passion, cor 
 ruption, or prejudice. 1 Where, however, a woman 
 had lost one arm and the use of the other, and 
 was so bruised, battered, blackened and injured 
 that she was in constant pain, and her health and 
 memory were impaired, and in three successive 
 trials recovered $10,000, 118,000, and $22,250 
 respectively, the first two verdicts were set aside, 
 but she was allowed to keep the third. 2 And 
 where one was disabled for two years, $4,500 was 
 held not exorbitant compensation ; 3 and in Con 
 necticut, 11,800 to a two year old baby for the 
 loss of a leg and hand were given and retained. 4 
 And where a man broke his leg in two places, 
 was confined to his room for four or five months 
 during which time the injured leg became shorter 
 than the other, he was allowed to retain $2,000 
 awarded to him by the jury, 5 and Mr. Rock 
 well, who had to keep his bed six weeks, suffer 
 ing great pain the while, and could not attend to 
 his business for several months and had to pay 
 $1,500 to the disciples of Galen, was allowed to 
 keep $12,000 given him by twelve jurymen. 6 
 
 i Colcman v. Southwick, 9 Johns. 45 ; Gilbert v. Burtenshawf, Cowp. 230; 
 Hewlett v. Cruchley, 5 Taunt. 277. 
 
 Shaw v. Boston & Worcester Rw., 8 Gray, 45. 
 Curtiss v. Rochester & S. Rw., 20 Barb. 282. 
 Redfield on Railways, vol. ii., p. 243. 
 Fairbanks r. G. W. R., 35 Q. B. (Ont.), 523. 
 Rockwell v. Third Avenue Rw., 64 Barb. N. Y. 438. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 223 
 
 But $5,000 for a damaged hand was held too 
 much. 1 As these things rest a great deal in the 
 discretion of the jury they must of necessity be 
 more or less uncertain. But the amount paid by 
 railway companies for compensation for injuries 
 is enormous : the Revere accident, in Massa 
 chusetts, a few years ago, cost the company half 
 a million of dollars, and in England between 
 1867 and 1871 the various companies paid out 
 $10,000,000 for this purpose." 
 
 " Can you sue more than once ? " 
 
 " No ; you must go for all your damages, pres 
 ent and prospective, in one action." 2 
 
 " What do you actually get paid for ? " 
 
 " The effect of the accident both at the pres 
 ent time and in the future upon one s health, 
 use of limbs, ability to attend to business and 
 pursue the course of life that one otherwise would 
 have done, the bodily pain and suffering en 
 dured, and in fact all injuries that are the legal, 
 direct, and necessary results of the accident. 3 If 
 sufficient time has not elapsed to enable the in 
 jury to be properly computed, the trial should be 
 postponed. 4 A jury may be properly asked to 
 consider the fact that the injured one had a 
 reasonable prospect of increasing his income al- 
 
 1 Union Pacific Rw. v. Hand, 7 Kan. 380. 
 
 2 Hodsoll v. Stallebras, 11 Ad. & El. 301 ; Whitney v. Clarendon, 18 Vt. 252. 
 
 3 Curtiss v. Rochester & S. Rw. 20 Barb. 282 ; Memphis, etc. Rw. v. Whit- 
 field, 44 Miss. 466. 
 
 Speers v. G. W. R., 6 Pr. Rep. (Ont.), 173. 
 
224 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 though at the time it was small. 1 In some eases 
 the plaintiff has been allowed to add to his 
 actual damages of loss of time, expense of cure, 
 pain and suffering, and prospective disability, 
 if any counsel fees not recoverable as taxable 
 costs, 2 but this rule is not now followed. 3 A 
 husband may recover for the expense of the cure 
 of his wife, and for the loss of her services. 4 Ex 
 penses incurred by sickness of a wife caused by 
 the death of her child, 5 and damages for prema 
 ture labor, and birth of a still-born child caused 
 by collision, are recoverable. 6 One young lady, 
 who was seriously injured by the upsetting of a 
 passenger car, sought to get additional damages 
 because the prospects of her forming a matri 
 monial alliance were lessened by her injuries, but 
 the poor thing failed in her attempt for lack of 
 evidence on the point, and because her attorney 
 had neglected to insert the special claim in the 
 declaration." 7 
 
 " Oh that was too bad," said Jones, " for the 
 desire of marriage her chances of which had 
 been lessened arises naturally from the princi 
 ple of reproduction which stands next in impor- 
 
 Fair v. L. & N. W. Rw., Q. B. 18 W. 11. 66. 
 
 2 Barnard v. Poor, 21 Pick. 381 ; Sandback v. Thomas, 1 Stark. 306. 
 s Grace v. Morgan, 2 Bing. (N. C.), 534 ; Jenkins v. Biddulph, 4 Bing. 160. 
 * Hopkins v. Atlantic & St. Lawrence Rw., 36 N. II. 9 ; Pack v. Mayor of 
 New York, 3 Comst. 489 ; Campbell v. G. W. II., 20 U. 0. C. P. 345. 
 s Ford v. Monroe, 20 Wendell, 210. 
 e Fitzpatrick v. Great Western Rw., 12 U. C. Q. B. 645. 
 7 Hanover Rw. v. Coyle, 55 Penn. 396. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 225 
 
 tance to its elder born correlative, self-preserva 
 tion, and is equally a fundamental law of existence: 
 it is the blessing which tempered with mercy the 
 justice of the expulsion from Paradise ; it was 
 impressed upon the human creation by a benevo 
 lent Providence, to multiply the images of Him 
 self, and so promote His own glory and the hap 
 piness of his creatures. Not man alone but the 
 whole animal and vegetable kingdoms are under 
 an imperious necessity to obey its mandates. 
 From the lord of the forest to the monster of the 
 deep ; from the subtlety of the serpent to the 
 innocence of the dove ; from the celastic embrace 
 of the mountain Kalima to the descending fructi 
 fication of the lily of the plain, all nature bows 
 submissively to this primeval law. Even the 
 flowers which perfume the air with their fragrance 
 and decorate the forests and the fields with their 
 hues, are but curtains to the nuptial bed. The 
 principles of morality, the policy of nations, the 
 doctrines of the common law, the law of nature 
 and the law of God, unite in condemning any act 
 which hinders people entering into the holy estate 
 of wedlock." l 
 
 " My conscience, Tom Jones, how did you be 
 come master of such mighty and glowing strains 
 of high toned eloquence," I asked, as I " astonied 
 stood and blank." 
 
 " Oh, I have an action for breach of promise 
 
 1 Per Lewis, J. Commonwealth v. Stauffer, 10 Barr. 350. 
 W & R. OF T. 15 
 
226 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 coming on to-morrow, and I thought I would see if 
 I knew the peroration of my address to the jury." 
 
 " Did you compose it ? " I asked. 
 
 " Not quite. Mr. Justice Lewis, of Pennsyl 
 vania, originally uttered the words in giving judg 
 ment in a will case. Now then," said Jones, 
 after a pause, " what about the employee that was 
 killed." 
 
 " Ah ! more of them are killed every year than 
 the number of soldiers who died during the 
 Ashantee war ; 1,000 or 1,200 appears to be the 
 annual " number in the old country. But it is 
 clearly settled both in England and America, that 
 a servant who is injured through the negligence or 
 misconduct of a fellow servant, can maintain no 
 action against the master, 1 if the latter has taken 
 due care not to expose him to unnecessary dan 
 ger, 2 and has made a proper selection of servants 
 competent and trustworthy and has a suffi 
 cient number of them, 3 and has himself not been 
 guilty of negligence, 4 and takes care to furnish 
 and maintain suitable and safe machinery and 
 structures, 5 and if a servant continues his work 
 
 1 Priestley v. Fowler, 3 M. & W. 1 ; Farwell v. Boston & W. Rw., 4 Met. 49 ; 
 Brown v. Maxwell, 6 Hill, N. Y. 592. 
 
 2 Hutchinson v. York, etc., Rw., 5 Ex. 353 ; Wiggett v. Fox, 11 Ex. 837 ; 
 Keegan v. Western Rw., 4 Selden, 175. 
 
 3 Tarrant v. Webb, 18 0. B. 805; Frazier v. Penn. Rw., 38 Penn. St. 104; 
 Wright v. New York Central, 28 Barb. 80 ; Hard v. Vermont & Canada Rw., 
 32 Vt. 473. 
 
 * Ormond v. Holland, 1 El. Bl. & El. 102. 
 
 B Bartonshill n oa l Co. v. Reid, 3 Macq. II. L. Cas. 266 ; Tarrant v. Webb, 18 
 C. B. 797 ; Weems v. Mathieson, 4 Macq. 215. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 227 
 
 knowing that his fellows are incompetent, or the 
 machinery defective, he is guilty of contributory 
 negligence." 1 
 
 " It seems," remarked my friend, " strange that 
 if my coachman runs over a stranger and kills 
 him, I have to make reparation, but if he runs 
 over the footman and disposes finally of that man 
 of buttons, it is a matter of no importance. And 
 in this case it will prove very hard on the poor 
 family." 
 
 u Ah, well! judges and juries must not be 
 drawn out of the path of duty even by their feel 
 ings for the widow and the orphan. The reason 
 of the law is, that when a servant engages to 
 serve a master he undertakes to run all the ordi 
 nary risks of the service, which includes, of course, 
 the negligence of fellow servants acting in the 
 discharge of their duty towards their common 
 master. 2 If the rule was otherwise it might be 
 come very hard on the master ; as Lord Abinger 
 suggests, the footman who sits behind the carriage 
 would have an action against his master if he 
 came to grief through the negligence of the coach- 
 maker or harness maker, or through the drunken 
 ness, neglect, or want of skill of the coachee ; in 
 fact the poor master would be liable to his servant 
 for the negligence of the chambermaid, in putting 
 him into a bed with damp sheets, whereby he took 
 
 1 Holmes v. Clark, 6 H. & N. 349 ; 7 Ibid. 937. 
 
 2 Morgan v. Vale of Neath Rw., L. R., 1 Q. B. 149. 
 
228 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 the rheumatism ; for that of the upholsterer in 
 sending him a crazy bedstead, whereby he fell 
 down while asleep and injured himself; or for 
 the negligence the cook in not properly clean 
 ing the copper vessels used in the kitchen ; of the 
 butcher in supplying the family with meat injuri 
 ous to health ; of the builder for a defect in the 
 foundation of the house whereby it fell, and in 
 jured both the master and the servants in its 
 
 ruins. 
 
 "But what is a fellow servant ? " 
 
 " In England all the servants of the same per 
 son, or company, engaged in carrying forward the 
 common enterprise although in different de 
 partments, widely separated or strictly subordi 
 nated to others are fellow servants and are 
 bound to run the hazard of any negligence or 
 wrong doing which may be committed by any of 
 their number, 2 and it makes no difference that the 
 negligence is imputed to a servant of superior 
 authority, whose directions the other was bound 
 to obey. 3 But in some of the American cases, it 
 has been held that employees, who are so far re 
 moved from each other as that the one is bound 
 to obey the other, are not fellow servants within 
 the "rule; 4 other judges, however, have denied 
 
 1 Priestley v. Fowler, 3 M. & W. 1. 
 
 2 Tunney v. Midland Rw., L. R., 1 C. P. 291 ; see also, Plant v. G. T. R.. 27 
 U. C. Q. B. 78. 
 
 Feltham v. England, L. R., 2 Q. B. 33. 
 
 4 Coon v. Syracuse & Utica Rw., 1 Selden, 492 ; Louisville & N. Rw. v. Col 
 lins, 5 Am. Law Reg. (N. S.), 265 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 229 
 
 this qualification ; 1 and now it seems settled that 
 it is sufficient to bring the case within the general 
 rule, if the servants are employed in the same 
 general service, 2 or under the same general con 
 trol." 3 
 
 " All this may be very true, but then you see, 
 my dear Eldon, my man was killed in consequence 
 of the state of the track," said Jones. 
 
 " Why in the name of all that is sacred and 
 profane did you not remind me of that before. 
 In one case a company was held responsible for an 
 injury to one of its servants through the track be 
 ing out of repair, 4 but in others it was considered 
 that if the line was properly built and inspected 
 it was all that could be required-. 5 So you can 
 draw your own conclusions, for I am getting tired 
 of you." 
 
 "Well, I m off, and am much obliged. But, 
 oh, one point more before I leave you. One of 
 the men was coming from Chicago and had a 
 coupon ticket which he purchased at the station 
 there, does that make any difference ? " 
 
 " Through tickets do not import a contract with 
 the purchaser on the part of the company selling 
 
 1 Farwell v. Boston & W. Rw., 4 Met. 49, 60 ; Gillshanuon v. Stony Brook 
 Rw., 10 Gush. 228 ; Chicago & N. W. Rw. v. Jackson, 55 111. 492. 
 
 2 Wright v. N. Y. C., 25 N. Y. 562 ; and see Baird v. Pettit, 29 Phil Rep 
 397. 
 
 8 Abraham v. Reynolds, 5 II. & N. 142 ; Hard v. Vermont & Canada Rw 
 32 Vt. 475. 
 
 * Snow v. Housatonic Rw., 8 Allen, 441. 
 
 8 Faulkner v. Erie Rw., 49 Barb. 324; Warner v. Same, 8 Am. Law Reg 
 (N. S.), 209. 
 
230 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 to carry him beyond the limits of their own line : 
 the coupons are to be considered as so many dis 
 tinct tickets for each road, sold by the first com 
 pany as agent for the others ; a and each successive 
 company is responsible for all injuries to through 
 passengers while upon its own line and in passing 
 to the next company s line. 2 The companies can 
 not be considered partners so as to render each 
 liable for injuries or losses occurring upon the 
 whole route." 3 
 
 " Is not that different from the rule as to carry 
 ing 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 ; 4 
 and in England it has been decided 5 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 rail 
 way company, the company issuing the ticket in 
 curs the same responsibility as that other com 
 pany, over whose line the train runs and by whose 
 default the accident happens, would incur if the 
 contract to carry had been entered into by them. 
 The company issuing the ticket is liable for the 
 negligence of the servants of any other company 
 
 Sprague v. Smith, 29 Vt. 421 ; Hood v. N. Y. & N. H. Rw., 22 Conn. 1 
 
 Knight v. P. S. & P. R. Rw., 56 Me. 234 ; 2 Redf. Am. R\v. cases, 458. 
 
 Ellsworth v. Tartt, 26 Ala. 733. 
 
 McCormick v. Hudson R. Rw., 4 E. D. Smith, 181. 
 
 Great Western Rw. v. Blake, 7 II. & N. 987, Ex. Ch. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 231 
 
 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 them 
 selves guilty of any negligence, but that due care 
 will be used in carrying the passengers from one 
 end of the journey to the other, so far as is within 
 the compass of railway management. 1 In fact, the 
 rule in regard to companies that run over other 
 roads than their own seems now to be pretty^ well 
 established ; and it is, that the first company is re 
 sponsible for the entire route and must take the 
 risk of the employees of the other companies ; 2 
 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 neg 
 ligence of such other company ; though if it were 
 a case of goods they would be liable, because they 
 are then insurers." 3 
 
 " I suppose in England you can only sue the 
 company granting the ticket." 
 
 " Yes. I would just add, so that you may have 
 
 1 Thomas v. Rhymney Rw. Co., L. R., 6 Q. B. 266, Ex. Ch. ; and John v. 
 Bacon, L. R., 5 C. P. 437. 
 
 2 Redfield on Railways, vol. ii. p. 303 ; Railway Co. v. Barren, 5 Wall, 90 ; 
 Ayles v. S. E. Rw., L. R., 3 Ex. 146 ; Birkett v. AVhitehaven Junction Rw., 4 
 H. & N. 730 ; Sprague v. Smith, 29 Verm. 421, was an exceptional case. 
 
 s Wright v. Midland Rw., L. R., 8 Ex. 137. 
 
232 INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 an exhaustive discourse on the subject, that if 
 mischief arises from the act of a stranger in leav 
 ing 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 ac 
 tion cannot be maintained against the railway 
 company, because in that case there would not be 
 any direct or indirect breach of duty, or breach of 
 contract, on their part ; they would not be liable 
 on their own line, or on any other company s line 
 for that ; a the same doctrine was held where a 
 stranger had wilfully and maliciously placed a 
 stone upon the track which threw off the train. 2 
 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. 3 So, where the covetous greed of a 
 young bullock induced him to force his way 
 through a hedge to gain some tempting grass that 
 grew luxuriantly on the track, and the collision 
 with him of the train hurt Mr. Buxton who was 
 on board; and it appeared that B. had been a 
 passenger on the defendants railway to be carried 
 from Y. to T., and to reach T. it was necessary 
 
 J Mytton . Midland Rw., 4 II. & N. 615 ; Great Western Rw., v. Blake, 7 
 U. & N. 987, Ex. Ch. ; Weed v. Saratoga Rw., 19 Wend. 534. 
 
 2 Latch v. Rimmer Rw., 27 L. J., Ex. 155 ; see also, Cunningham v. Grand 
 Trunk Rw., 31 U. C. Q. B. 350 ; Curtis v. Rochester & Syracuse Rw., 18 N. Y. 
 534 ; Tennery v. Pippinger, 1 Phila. 543 ; Thayer v. St. Louis, A. & T. II. Rw. 
 22 Ind. 26 ; Pitts., Ft. Wayne, & Chicago Rw. v. Maurer, 21 Ohio, N. S. 421. 
 
 3 Goldey c. Penn. Rw., 30 Penn. St. 242. 
 
INJURIES TO PASSENGERS AND EMPLOYEES. 
 
 233 
 
 to travel over the line belonging O another com 
 pany, 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 de 
 fendants they were the proper parties to be sued. 
 A new trial was, however, granted because the 
 judge had directed the jury that it was negli 
 gence in the defendants if the fences were insuffi 
 cient ; the court considering that there was no 
 statutory obligation on the company, towards 
 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. 
 
 " T don t understand." I returned. 
 
 " Why a case of cattle-lept-sy to be sure. Au 
 revoir." 
 
 i Buxton v. Northeastern Rw., L. R., 3 Q. B. 549. 
 
234 BAGGAGE AGAIN. 
 
 CHAPTER XV. 
 BAGGAGE AGAIN. 
 
 Epistolary Model. Dog lost. Quitting a Moving Car. When Lia 
 bility for Luggage commences. Goods of Third Partv. Left in 
 the Car. Baggage lost. English Rule. Limited Liability. 
 Personal Luggage, what it is. Watch Rings. Pistol. Rail 
 road Porter. Hotel Bus. Tools and Pocket Pistols. Fiddles 
 and Merchandise. Farewell. 
 
 MY 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 amusing, 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 re 
 mains 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, per 
 chance, he may be gracing the board at some res 
 taurant 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 
 
BAGGAGE AGAIN. 235 
 
 it was his duty to lock him up, or otherwise keep 
 him safely. 1 Make out your bill, dearest, we 11 
 make the company pay. At what figure do you 
 value him ? (I had, however, better add that in a 
 late case where a dog was fastened in the ordinary 
 way, and there was nothing to show that he was 
 likely to escape, the carrier was held justified in 
 trusting to the owner having properly secured the 
 animal.) 2 
 
 Poor Miss Smith ought to have been more care 
 ful 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 out 
 come of that perverseness which is the character 
 istic trait of the feminine nature. 3 
 
 You never told me that Eliza Jane had taken 
 her trunk to the station some half dozen hours be 
 fore 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, 
 
 1 Stuart v. Crawley, 2 Stark, 324. 
 
 2 Richardson r. Northeastern R\v., L. R., 7 C. P. 75, note, 
 s Lucas v. Taunton & New Bedford Rw., 6 Gray, 64. 
 
236 BAGGAGE AGAIN. 
 
 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 servants receive the baggage of the traveller 
 at the proper place ; and the giving of the check 
 does not control the time of the responsibility at 
 taching. 1 One is a passenger, and entitled to sue 
 for damages sustained, the moment he mounts the 
 bus (run by the company) on his way to the sta 
 tion. 2 But where an intending passenger, fifteen 
 minutes before the train was to start, entered a 
 car at the terminus, left his valise on a vacant seat 
 and went out ; and on his return shortly after 
 wards his baggage was gone ; as he did not show 
 that there was any one in charge of the train or 
 any other passenger on board, the court would not 
 hold the company liable. 3 The fact that you took 
 and paid for her ticket will not prevent E. J. 
 maintaining an action for her loss, 4 for it makes 
 no difference whether a passenger pays her own 
 fare, or some one else kindly does it for her. 5 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, 6 
 
 1 Camden & Amboy Rw. v. Belknap, 21 Wendell, 354; Hickox v. Nauga- 
 tuck Rw., 31 Conn. 281. 
 
 Buffet v. Troy Rw., 40 N. Y. 163. 
 Kerr v. G. T. R., 24 C. P. (Ont.), 209. 
 Marshall v. York, N., & B. Rw., 11 0. B., 655. 
 Van Horn v. Kermit, 4 E. D. Smith, 453. 
 Mobile & Ohio Rw. v. Hopkins, 41 Ala. 486. 
 
BAGGAGE AGAIN. 237 
 
 But, unfortunately, I fear that you must quietly 
 submit to the loss of those things of yours which 
 she had in her trunk, for the contract to carry was 
 with her alone ; the company thought that the 
 trunk contained her luggage ; if they had been told 
 that it was not they might have objected to carry, 
 considering the Saratogas you had, not to speak of 
 bandboxes, bundles, and parcels ; and even if you 
 had had no luggage yourself, it would have been 
 all the same ; ] and as they were not Eliza Jane s 
 I don t suppose she can sue for them either. 
 
 And so that pretty dressing-case which I gave 
 you on that memorable day when we twain became 
 one flesh, is gone ! you say that you put it under 
 your seat in the car, and that it must have been 
 left there when the porter carried your traps to 
 the cab at your journey s end ; well, I cannot say 
 that placing it where you did was a very wise 
 thing, still as another lady who once did the same 
 in England recovered the value of her dressing- 
 case (although she failed to recover the case it 
 self), 2 so doubtless if money will dry your tears 
 for the loss of that memento of our wedding-day, 
 you will be consoled. Probably the fact of your 
 name and address not being on it will not affect 
 your rights in the matter. 3 A railway company is 
 liable for the loss of a passenger s luggage though 
 
 1 Becher v. G. E. Rw., L. R., 5 Q. B. 241. 
 
 2 Richards v. London, B., & S. C. Rw., 7 C. B. 839. 
 
 3 Campbell v. Caledonian Rw., 14 Ct. of Sess. Cas. 2 Per. 806 ; 1 S. M. & P. 
 742. 
 
238 BAGGAGE AGAIN. 
 
 carried in the carriage in which he himself is trav 
 elling. 1 Very special circumstances, and circum 
 stances leading irresistibly to the conclusion that 
 the traveller takes such personal control and 
 charge of his luggage as altogether to give up all 
 hold upon the company, are required before a 
 court will say that the company as common car 
 riers are not liable in the event of a loss. 2 Even 
 if luggage is never given to a railroad servant but 
 kept by the passenger in his own possession, still 
 in the eye of the law it is considered to be in the 
 custody of the company, so as to render them re 
 sponsible for the loss. 3 In England, a railway 
 company that receives goods or luggage, and books 
 it for a certain place beyond the terminus of its 
 road (unless it specially stipulates to be exempt 
 for whatever happens on other lines), is responsi 
 ble for any evil that befalls it before its arrival at 
 its journey s end, even though it happens while 
 the goods are passing over the rails of another 
 company ; 4 in fact one has no remedy except 
 against the company with whom the contract is 
 made. But the justice and soundness of the Eng 
 lish decisions have been seriously questioned by 
 
 1 Le Contour v. London & S. AY. R\v., L. R., I Q. B. 54. 
 
 2 Ibid. 
 
 3 Great Northern Rw. v. Shepherd, 8 Ex. 30 ; but see Tower v. Utica & 
 Sen. Rw., 7 Hill, N. Y. 47. 
 
 * Muschamp v. Lancaster & Preston Junction Rw., 8 M. & W.421 ; Watson 
 r. Ambergate, N. & B. Rw., 15 .Tur. 448; Bristol & Ex. Rw. v. Collins, 7 
 House Lords Cas. 194. The same rule applies in Canada, Smith v. G. T. Rw. 
 35 U. C. Q. B. 547. 
 
BAGGAGE AGAIN. 239 
 
 the American courts, who think that the carrier is 
 only liable for the extent of his own route, and 
 for safe storage, and safe delivery to the next car 
 rier. 1 Many cases, however, follow the English 
 ones, and others hold that the responsibility is only 
 primd facie, and may be controlled by general 
 usage among carriers, whether such usage be 
 known to the traveller or not. 2 (But this subject 
 is so mixed that I will show you what Judge Red- 
 field says when you get back again.) 3 Where dif 
 ferent railways forming a continuous line run 
 their cars over the whole line and sell tickets for 
 the whole route, checking baggage through, an 
 action lies against any company for the loss of bag 
 gage. 4 
 
 Of course if there was any notice on your 
 ticket limiting the liability of the company with 
 regard to your traps, you are bound thereby, even 
 if you never read it ; 5 for railway companies, as 
 well as other carriers, may limit their responsi 
 bility by special contract of which notice is given 
 to the passenger or owner, and to which he as 
 sents or does not object, subject to such excep 
 tion, limitation, or qualification as reason and jus- 
 
 1 Farmers & Mechanics Bank v. Champlain Trans. Co., 16 Vt. 52 ; 18 Vt. 
 131 ; 23 Vt. 186 ; Van Santvoord v. St. John, 6 Hill, N. Y. 158. 
 
 2 Southern Express Co. v. Shea, 38 Ga. 519 ; Cincinnati, etc., Rw. v. Pon 
 tius, 19 Ohio (N. S.), 221. 
 
 3 Redfield on Railways, vol. ii., p. 126, et seq. 
 
 * Hart v. Rensselaer & Saratoga Rw., 4 Seld. 37. 
 
 s Zunz v. South-eastern Rw., L. R., 4 Q. B. 539 ; but see Kent v. Midland 
 Rw. Co., L. R., 10 Q. B. 1 ; Henderson v. Stevenson, L. R., 2 S. & D. 470. 
 
240 BAGGAGE AGAIN. 
 
 tice may require and a judge and jury decide with 
 reference to each particular case. 1 
 
 I don t exactly know what you had in that 
 dressing-case of yours, but the rule is, " that 
 whatever a passenger takes with him for his own 
 personal care and convenience, or even for his 
 instruction and amusement, 2 according to the hab 
 its or wants of the particular class to which he 
 belongs, either with reference to the immediate 
 necessities or the ultimate purpose of the journey, 
 must be considered as personal luggage," for 
 the loss of which the carrier is liable ; 3 and ar 
 ticles of jewelry, such as a lady usually wears, are 
 considered personal luggage. 4 So is a watch ; 5 
 though in Tennessee a watch was not deemed a 
 proper part of necessary baggage. 6 Where was 
 yours ? So are finger rings. 7 In one case a man 
 was allowed to have two gold chains, two gold 
 rings, a locket and a silver pencil-case ; 8 so I will 
 leave you to calculate how many a lady should be 
 
 1 Carr v. Lancashire & York Rw., 7 Ex. 707 ; Redfield on Railways, vol. ii., 
 p. 101. Where the condition on ticket was " that the company does not hold 
 itself responsible for any delay, detention, or other loss arising off its lines,- 
 and the baggage was never delivered to any other company, held that mean 
 ing of last words was " out of the custody of the company." Kent v . Mid 
 land Rw., L. R., 10 Q.B.I. 
 
 2 Hawkins v. Hoffman, 6 Hill, 586. 
 
 3 Cockburn, C. J., in Macrow v. Great Western Rw., L. R., 6 Q. B. 625 ; 
 Great Northern Rw. v. Shepherd, 8 Ex. 38. 
 
 * Brooke v. Pickwick, 4 Bing. 218 ; McGill . Rowand, 3 Penn. St. 451. 
 c Jones v. Voorhees, 10 Ohio, 145; Miss. C. Rw. v. Kennedy, 41 Miss. 471. 
 
 6 Bomer v. Maxwell, 9 Humphrey, 621. 
 
 7 MtCormick v. Hudson River Rw., 4 E. D. Smith, 181. 
 
 8 Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66. 
 
BAGGAGE AGAIN. 241 
 
 allowed to carry about with her. Your swell 
 gold spectacles would also come within the cate 
 gory ; l and by the way, that linen which you 
 bought for my new shirt fronts would be in 
 cluded 2 (if you were good enough to take it with 
 you to make them up, and unfortunate enough to 
 lose it) ; and that little present you were taking 
 for your sister perhaps. 3 I don t know what 
 else you had in that case which will now know its 
 place on our dressing table no more forever. Of 
 course, your brushes, razors pardonnez moi, 
 madame, I forgot to whom I was writing pen 
 and ink, etc., are fairly baggage within the mean 
 ing of the term. 4 
 
 Not content with the abandoment of your dress 
 ing-case, you say you lost a bandbox by stupidly 
 letting a porter carry it for you to a cab, which 
 you could not afterwards find : well, if it is the 
 custom on that line for the company s porters to 
 assist passengers to obtain cabs, within the station 
 grounds, and place their baggage therein, the 
 company will be liable for this loss also. This 
 my old friend Butcher satisfactorily established : 
 he had a carpet-bag with him containing a large 
 sum of money, and this he wisely kept in his own 
 possession while journeying up to London. On 
 
 1 Re II. M. Wright, Newberry Admiralty, 494. 
 
 2 Duffy v. Thompson, 4 E. D. Smith, 178. 
 
 3 Great Western Rw. v. Shepherd, 8 Ex. 38 ; but see Bell v. Drew, 4 E. D. 
 Smith, 59. 
 
 * Hawkins r. Hoffman, 6 Hill, N. Y. Rep. 589. 
 W. & R. OF T.-16 
 
242 BAGGAGE AGAIN. 
 
 arriving at the station there, however, he un 
 wisely even Jove sometimes nods let a porter 
 take it from him for the purpose of securing a 
 cab. The porter put the bag in a fly and then 
 returned to the platform to get my friend s other 
 luggage. Meanwhile cabby disappeared and the 
 bag and all that was therein was lost. The court 
 considered the company liable, as there had been a 
 delivery of the bag to them to be carried, and 
 no re-delivery to Butcher. 1 Where baggage has 
 been lost, the owner may recover all reasonable 
 expenses incurred in his hunt after it, such as 
 telegraphing, cab-hire, etc. : but his loss of time is 
 a dead loss. 2 
 
 Your next misfortune was the loss of that new 
 book I gave you, wherewith to beguile the weari 
 ness of the way ; you say you left it in the omni 
 bus that took you up to the hotel ; well, omnibus 
 drivers who take passengers from the stations 
 about the towns are unquestionably responsible 
 as common carriers. 3 Although in England it has 
 been held that a cab-driver or hackney-coachman 
 was not ; 4 still they are bound to use an ordinary 
 degree of care. If the hotel proprietor under 
 takes to provide free transit to and from the cars, 
 and you lost your book in his bus, he is liable. 5 
 
 1 Butcher v. London & S. W. Rw., 16 C. B. 13. 
 
 2 Morrison r. E. & N. A. llw., 2 Pugsley s Rep. No. 3, p. 295. 
 s Peixotti v. McLaughlin, 1 Strob. 468. 
 
 < Brind v. Dale, 8 C. & P. 207 ; Ross v. Hill, 2 C. B. 887. 
 s Dickinson v. Winchester, 4 Gush. 115. 
 
BAGGAGE AGAIN. 243 
 
 Although it deeply pains me to find the slight 
 est 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 char 
 acter 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 con 
 cerning 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 
 even ts, will not heed it, such is the forgetfulness 
 and perverseness 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 sportsman you may take a gun, if a disciple 
 of the gentle Izaak Walton, the necessary instru- 
 menta bella ; l if you are a joiner I don t mean 
 a parson you may take a reasonable amount of 
 tools with your clothes, 2 although perhaps you 
 can t ; 3 for in Pennsylvania a carpenter was per 
 mitted to carry a reasonable amount of his tools 
 with him, 2 while in Ontario a brother of the same 
 craft was not ; 3 the judge thinking that a black- 
 
 1 Macrow v. Great Western Rw., L. R., 6 Q. B 622 ; Hawkins v. Hoffman, 
 6 Hill, N. Y. Rep. 589. 
 
 2 Porter v. Hildebrand, 14 Penn. St. 129. 
 
 s Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66. 
 
244 BAGGAGE AGAIN. 
 
 smith might just as reasonably expect to carry his 
 forge, or a farmer his plough, as part of his bag 
 gage. You may take new clothing and materials 
 for yourself and family, though not for others ; 1 
 if you are of a nervous disposition and desire to 
 defend yourself against thieves and robbers, you 
 may take a pocket pistol, don t suppose I mean 
 a brandy flask, if you are a bellicose man of 
 honor a couple of duelling pistols will be allowed, 2 
 or even a gun, 3 although in Maryland, one was not 
 allowed to take a colt. 4 A theatre goer may take 
 an opera glass ; 5 a student on his way to col 
 lege, manuscripts necessary for the prosecution 
 of his studies ; 6 but an artist cannot carry his 
 pencil sketches as luggage in England ; 7 although 
 Cockburn, C. J., thought he could, and his easel 
 as well. 8 J. Wilson, in a Canadian case, thought 
 that one musically inclined might take a concer 
 tina, 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 intes 
 tines of the agile cat; " 9 but fortunately for man 
 kind in general the majority of the court held 
 otherwise. 
 
 Dexter v. S. B. & N. Y. Rw., 42 N. Y. 326. 
 
 Woods v. Devon, 13 111. 746 ; Bruty v. G. T. Rw. 32 U. C. Q. B. 66. 
 
 Davis v. Cayuga & S. Rw., 10 How. Prac. 330. 
 
 Giles v. Fauntleroy, 13 Md. 126. 
 
 Toledo & Wabash Rw. v. Hammond, 33 Ind. 379. 
 
 Hopkins v. Westcott, 7 Am. Law Reg. (N. S.), 533. 
 
 Mytton v. Midland Rw., 4 H. & N. 615 ; Morritt v. N. E. R., L. R., 1 Q. B. 
 
 D. 
 
 302. 
 
 Macrow v. Great Western Rw., L. R., 6 Q. B. 622. 
 Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66. 
 
BAGGAGE AGAIN. 245 
 
 You cannot carry merchandise, either in Eng 
 land, 1 the United States, 2 or the Dominion of 
 Canada, 3 unless, indeed, it is carried openly, or so 
 packed that the carrier can see what it is and 
 does not object to it ; nor samples, if you belong 
 to the confraternity of commercial travellers ; 4 
 nor can a banker take money as such ; 5 nor can 
 one carry silver spoons, nor surgical instruments, 
 unless he is a disciple of Galen and Hippocrates; 6 
 nor boxes of jewelry for sale; 7 nor silver-ware; 8 
 nor the regalia and jewels of a society ; 9 nor a 
 sewing-machine ; 10 and it is beyond a peradven- 
 ture that if a carrier accepts a trunk, or baggage, 
 containing such tabooed articles, without knowl 
 edge of such contents, he incurs no liability." If 
 he is deceived into taking it, he is not bound to 
 carry it safely. 11 
 
 But really, my dear, I must draw these re 
 marks to a close, as the parsons say in their ser 
 mons. You cannot complain that this letter is 
 
 1 Great Western Rw. v. Shepherd, 8 Ex. 30 ; Macrow v. Great Western Rw., 
 L. R..6Q. B. 616. 
 
 2 Pardee v. Drew, 25 Wend. 459 ; Collins v. Boston & Maine Rw., 10 Cush. 
 506. 
 
 Shaw v. Grand Trunk Rw., 7 U. C. C. P. 493. 
 
 Cahill v. London & N. W. Rw., 13 C. B. (N. S.), 818 ; Belfast B. L. & C. 
 Rw. v. Keys, 9 House Lords Cas. 556 ; Hawkins v. Hoffman, 6 Hill, 586 ; 
 D bblc v. Brown, 12 Ga. 217. 
 
 Phelps v. London & N. W. Rw., 19 C. B. (N. S.), 321. 
 
 Giles v. Fauntleroy, 13 Md. 126. 
 
 Richards v. Wescott, 2 Bosw. 589. 
 
 Bell v. Drew, 4 E. D. Smith, 59. 
 
 Nevins v. Bay State S. B. Co., 4 Bosw. 225. 
 10 Bruty r. Grand Trunk Rw., 32 U. C. Q. B. 66. 
 Sleat r. Fagg, 5 B. & Al. 342. 
 
246 BAGGAGE AGAIN. 
 
 too short. There are several items of news of 
 babies born, brides be-wed, bodies buried, and 
 such like trivialities, of which I might have told 
 you ; but as you spoke about your losses I con 
 cluded that I would send you an instructive note, 
 and let vain trifles rest quiescent until your re 
 turn. 
 
 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 be 
 coming that you should be slightly acquainted 
 with legal matters, especially as you are the 
 daughter of my mother-in-law. 
 
 Adu ! adu ! O reservoir ! 
 Your 
 
 SPANISH GKANDEE. 
 
TELEGRAMS AND FIRE. 24? 
 
 CHAPTER XVI. 
 TELEGRAMS AND FIRE. 
 
 Assault. Authority of Officials. A dear Kiss. Arresting Passen 
 gers. Telegraphic Messages. Interesting Examples. Who can 
 sue for Mistake. Fire-fiend s Pranks. Train Arrives. Liabil 
 ity Ceases. Trunks in Warehouse. Baggage left at Station. 
 Dissolving Domestic View. 
 
 WHEN the day arrived on which my wife was 
 to return to me, I determined 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 station 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 hesi 
 tated, as the train was in motion, so he caught 
 hold of me and violently pulled me out. We fell 
 on the platform and I was considerably hurt; and 
 what was as bad, the cars went on and left me be 
 hind. I went in search of the general superin 
 tendent 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 circum- 
 
248 TELEGRAMS AND FIRE. 
 
 stances 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 circumstances 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. 1 And in a similar 
 case it was held that the act of the porter, in 
 pulling a man out of the carriage, was an act 
 done within the course of his employment as the 
 company s servant, and one for which they were 
 therefore responsible. 2 
 
 Railway companies are liable for all the acts of 
 their servants and agents committed in the dis 
 charge of their business and their employment, 
 within the range of such employment, whether 
 wilful or negligent. 3 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 subsequently 
 ratified by the company. 4 Where a conductor 
 chancing to be alone in the car with Miss 
 Cracker, cracked some jokes, sat down beside her, 
 put his hand in her muff with her s (although 
 she objected that there was no room for it), threw 
 
 1 Bayley v. Manchester, etc., Rw., L. R., 7 C. P. 415. 
 
 2 Ibid. 
 
 s Phil. & R. Rw. v. Derby, 14 How. 468; Noyes v. Rutland, etc., Kw., 27 
 Vt. 110 ; Yarborough v. Bank of England, 16 East. 6 
 -* Roe v. Berkenhead & L. Rw., 7 W. II. & G. 36. 
 
TELEGRAMS AND FIUE. 249 
 
 his arms around her neck, and kissed her five or 
 six times, while she struggled to escape. Miss 
 C. to have sweet revenge, the kisses being so sour, 
 and not relishing such blandishments and dislik 
 ing chaps about her lips, or a railway man s bill 
 stuck in her face, had him arrested and fined $25 
 for an assault : the company then dismissed the 
 gay Lothario from their employ, and were rather 
 surprised when the injured female sued them and 
 recovered against them $1,000. The court con 
 sidered the verdict was not excessive, and that a 
 carrier s contract bound him to protect his pas 
 sengers against all the world, which in this case 
 had not been done. It was not denied that if 
 such an attack had been made by a stranger and 
 the conductor had neglected to protect Miss C. 
 the company would have been liable, but it was 
 contended that the company was not responsible 
 for the malicious breach of the contract by their 
 servant, the conductor. Ryan, C. J., thought 
 such a contention was much like saying that if 
 one hired a dog to guard sheep against wolves, 
 and the dog slept while a wolf made away with a 
 sheep, the owner of the dog would be liable ; but if 
 the dog played wolf, and devoured the sheep him 
 self, the owner would not be liable. Every wo 
 man has a right to assume that when she travels 
 in a car she will meet nothing, see nothing, hear 
 nothing, to wound her delicacy, or insult her wo 
 manhood. 1 
 
 i Craker v. Chicago & N. W. Rw., 36 Wis. 657. 
 
250 TELEGRAMS AND FIRE. 
 
 Some courts have held that a, railway company 
 can only act through their officers and servants, 
 and as they, of necessity, commit their trains abso 
 lutely to the charge of men of their own appoint 
 ment, and passengers of necessity commit to them 
 their safety and comfort while journeying, the 
 whole power and authority of the company for 
 that purpose is vested on those officers ; and as 
 far as travellers are concerned they are to be con 
 sidered as the corporation itself ; and the latter is 
 as responsible for the acts of the officers in run 
 ning the train towards the passengers in it, as the 
 officers would be for themselves were they the 
 proprietors of the road and train. 1 Exemplary 
 damages, however, will not be given against a 
 company for the malicious acts of its agent, unless 
 it is shown that the company expressly author 
 ized or confirmed the deeds. 2 
 
 A railway is supposed to have at its stations 
 officers with authority to do all such things as are 
 necessary and expedient for the protection of the 
 company s property and interests, and for the ap 
 prehension of wrong-doers ; and where there are 
 persons present who are acting as if they had ex 
 press authority, it is primd facie evidence that 
 they had such authority, 3 and the company will 
 
 1 Bass v. Chicago & N. W. Rw., 36 Wis. 450 ; Craker v. C. & N. W. Rw., 
 33 Wis. 657 ; Goddard v. G. T. R , 57 Me. 202. 
 
 2 M. & M. R. R. Co. r. Finncy, 10 Wis. 388 ; but see Goddard v. G. T. R., 57 
 Me. 202 ; Sanford r. Rw. Co., 23 N. Y. 343. 
 
 3 Goff v. Gt. Northern Rw., 3 E. & E. 672. 
 
TELEGRAMS AND FIRE. 251 
 
 be answerable if their officers, in the exercise of 
 their discretion, make a mistake and apprehend 
 an innocent person, or commit an assault through 
 an excess of duty, or do any other act that cannot 
 be justified. 1 And it makes no difference with 
 regard to the responsibility of the company that 
 the servant disobeyed the directions of his supe 
 riors, if he was acting within the scope of his em 
 ployment at the time. 2 But when he does an act 
 which he has no authority to do, the company are 
 not liable ; 3 nor are they when he does an act 
 which the company themselves have no authority 
 to do. 4 And thus a seeming paradox 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 were not liable, 
 though had the zealous official arrested him for 
 not paying his own fare, damages might have 
 been recovered against the company. 5 
 
 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 est, I had to nurse 
 my wrath until some more convenient season. 
 
 Just then a friend came up and showed me a 
 
 1 Giles v. Taff Vale Rw., 2 E. & B. 822 ; Moore v. Metropolitan Rw., L. R., 
 8 Q. B. 36. 
 
 2 Phil. & Read. Rw.u. Derby, 14 How. (U. S.), 468. 
 
 3 Edwards v. London & N. W. Rw., L. R., 5 C. P. 445. 
 * Poulton T. London & S. W. Rw., L. R., 2 Q. B. 534. 
 s Ibid. 
 
252 TELEGRAMS AND FIRE. 
 
 telegram which seemed perfectly enigmatical and 
 worthy of the Sphinx of yore, and we thus got 
 speaking concerning such messages (or as they 
 are often rightly called tell-o-crams). He asked 
 me if I had ever noticed the case where a gentle 
 man telegraphed for two hand bouquets, and the 
 operator changed hand into hund and added red, 
 making the order for " Two hundred bouquets." 
 The florist delighted at the extensive order, pro 
 cured 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, 1 as well on the ground of 
 breach of contract, as of breach of duty, the tele 
 graph company being public servants. 
 
 " I believe that where the company give notice 
 that they will not be responsible except for re 
 peated messages, such a condition will be held 
 good," I said. 
 
 " Yes. 2 There have been several cases showing 
 the damage which the company will have to pay 
 for mistakes in the performance of their duty : in 
 one where a merchant sent the message 4 Stop 
 sewing pedal braid till I see you, and it was de 
 livered Keep sewing, etc., etc., and in conse 
 quence a large quantity of unfashionable braid 
 was manufactured which the merchant received 
 and disposed of in the best manner. He was 
 
 1 N. Y. & Wash. Print. Tel. Co. v. Dryburgh, 35 Penn. St. 298. 
 
 2 McAndrew f. Electric Tel. Co., 17 C. B. 3; Wann v. Western, etc., Tel. 
 Co., 37 Mo. 472. 
 
TELEGRAMS AND FIRE. 253 
 
 held entitled to recover the whole loss sustained 
 in consequence of the error; 1 and it was so held 
 where the message was changed from c 5,000 sacks 
 of salt, into 5,000 casks: 2 the fact that the error 
 was made in the transmission because the message 
 was unintelligible to the operator will not excuse 
 the company, so long as the words were plain." 2 
 
 " How is the law in England ? " 
 
 " It has been held there, and in Canada, that 
 the party employing the telegraph company, or 
 sending the message on his own account, is the 
 only party who can maintain an action for any 
 failure to perform their duty in respect of the 
 message. 3 And where a message was sent for 
 three rifles and when received it read the rifles, 
 and the plaintiff supposing it referred to a former 
 communication sent the sender of the despatch fifty 
 rifles, the number before named ; and these were 
 refused ; the plaintiff sued the sender for the 
 price, but the court held that the defendant was 
 not responsible for the mistake in transmitting 
 the message, and that the plaintiff could only re 
 cover for three rifles. 4 The American jurists think 
 that the English courts are guilty of an incon 
 sistency, if not of a blunder, in holding that the 
 only party who can sue the company is not re- 
 
 1 Lockwood v. Ind. Line of Tel. Co., N. Y., C. P. 1865. 
 
 2 Rittenhouse v. The same, 1 Daly, 0. P. 474. 
 
 3 Playford v. United Kingdom Tel. Co., L. R., 4 Q. B. 706 ; Feaver v. Mon 
 treal Tel. Co., 23 U. C. C. P. 150. 
 
 * Ilenkel v. Pape, L. R., 6 Ex. 7. 
 
254 TELEGRAMS AND FIRE. 
 
 sponsible tor the mistake. They say that the 
 party who suffers by the mistake should, at all 
 events, be allowed to maintain an action to re 
 cover the damage sustained by him ; and they say 
 that is the rule throughout the republic. 1 In an 
 action against the company that delivers the mes 
 sage, where it has passed over several lines, they 
 may excuse themselves by showing that the neg 
 ligence complained of was that of some prior 
 line. 2 Where there are several connected lines 
 the company that took the message are generally 
 liable for any negligence or mistake in the trans 
 mission." 3 
 
 " It seems to be the law that the regulations of 
 a telegraph company relieving them from liability, 
 unless the message is repeated, are reasonable, 
 and will free them from the effects of many mis 
 takes ; 4 but they will not be construed so as to 
 release the company from liability occasioned by 
 their own wilful misconduct or negligence, 5 as 
 where our was changed into your? or the mes 
 sage was never sent, 7 or delayed in delivery ; 8 there 
 
 1 Redfield on Railways, vol. ii., p. 314. 
 
 2 La Grange r. S. W. Tel. Co., 25 La. An. 383. 
 s De Rutte v. Tel. Co., 1 Daly, 547. 
 
 * McAndrcw v. Electric Tel. Co., 17 C. B. 3 ; but see Tyler v. W. U. Tel. 
 Co., 5 Chi. Leg. News, 550; Wolf v. W. Tel. Co., 62 Pa. St. 83. 
 
 e N. Y. & Wash. Tel. Co. . Dryburgh, 35 Penn. St. 298 ; True v. Inter 
 national Tel. Co., 60 Maine, 9; Sweetland v. Illinois, etc., Tel. Co., 27 Iowa, 
 433. 
 
 Sellers v. W. U. Tel. Co., 3 Am. Law Reg. 777. 
 
 7 Birney v. N. Y. & Wash. Tel. Co., 18 Maryland, 341. 
 
 8 U. S. Tel. Co. v. Gildersleeve, 29 Maryland, 232; Bryant v. Am. Tel. Co., 
 1 Daly, 575. 
 
TELEGRAMS AND FIRE. 255 
 
 must, however, be proof of negligence distinct 
 from the infirmities of telegraphing. 1 Some of 
 the American courts, however, have held that the 
 receiver of the message is not bound by such a 
 notice. 2 The company may restrict their liability 
 on other points as well, by giving notice ; but the 
 restriction must be reasonable, not one, for in 
 stance, that the company would not be respon 
 sible for mistakes to an amount greater than that 
 paid for the message. 3 The notice will, moreover, 
 only benefit the company to which it is confined 
 by the contract, and not a connecting line. 4 
 
 " But suppose one is not aware of these rules 
 and regulations ? " 
 
 " To prevent one recovering they must be 
 brought home to his knowledge 5 but he will be 
 presumed to know what is on the blank used, and 
 to make the conditions thereon his own, whether 
 he read them or not." 6 
 
 " Speaking about the freaks of the telegraph, 
 did you see that one about the young parson who 
 was about to start for his new parish, but was un 
 expectedly delayed by the inability of the Presby 
 tery to ordain him ? To explain his non-arrival he 
 
 1 Ellis v. Am. Tel. Co., 13 Allen, 226 ; and Wann v. West. U. Tel. Co., 37 
 Mo. 472. 
 
 2 La Grange v. S. W. Tel. Co., 25 La. An. 385. 
 s True 7v International Tel. Co., 60 Maine, 9. 
 
 4 Squire v. W. U. Tel. Co., 98 Mass. 232. 
 
 5 Camp v. West. Union Tel. Co., 1 Met. (Ky.) 164. 
 
 6 West. Union Tel. Co. v. Carew, 15 Mich. 525; Wolf v. W. Tel. Co., 
 G2 Pa. St. 83; but see Henderson v. Stevenson, L. R., 2 S. & D. 470. 
 
256 TELEGRAMS AND FIRE. 
 
 telegraphed to the church officials, Presbytery 
 lacked a quorum to ordain. In the course of its 
 journey this got strangely metamorphosed, and 
 the message-boy handed to the astonished deacons 
 a telegram saying, " Presbytery tacked a worm 
 on to Adam." The sober elders were sorely dis 
 composed and mystified, but after grave consulta 
 tion the happy thought struck one of them that 
 this was the new minister s facetious way of an 
 nouncing his marriage, and accordingly they pro 
 vided lodgings for two instead of one." 
 
 "That is rather rich." 
 
 Thus chatting with my friend about the tele 
 graph, the law and the profits thereof, occasionally 
 indulging in the luxury of that odious weed of 
 the great Sir Walter Raleigh, and frequently 
 practising the bibulistic art, the time passed 
 rapidly and pleasantly enough, and at length the 
 shrill ear-piercing screech of a locomotive an 
 nounced the arrival of the train, containing, as 
 Horace neatly puts it, animce dimidium mew* or 
 as ordinary folks say, " my better half." After 
 the usual oscillatory exercises, I inspected the 
 amount of her handboxes, bundles, satchels and 
 checks, and concluded that it would be useless to 
 expect a cabby to carry home such a vast amount 
 of baggage, and at well nigh the noon of night it 
 would be equally vain to endeavor to obtain the 
 services of a carter ; so, knowing that travellers 
 have a reasonable time to claim and remove their 
 
TELEGRAMS AND FIRE. 257 
 
 baggage, I determined to leave it at the station 
 for the night. 
 
 With the checks clinking together in my pocket 
 and my wife by my side, and Eliza Jane in front 
 of me, I drove home comfortably, thinking that 
 in the morning the checks would bring forth the 
 trunks ; but alas ! I leant upon a broken reed, 
 and ere the morrow s light appeared the baggage 
 and my right to recover for its loss had vanished 
 for ever and ever, like a morning mist before the 
 rising sun. 
 
 A fire broke out at the station and favored by 
 the winds of heaven it grew into a mighty confla 
 gration, and before the morning watch the devour 
 ing element had consumed the station and all that 
 therein was. 
 
 After a visit to the charred and smouldering 
 ruins of the once handsome depot my numer 
 ous inquiries having confirmed my worst fears as 
 to the total loss of my wife s apparel I returned 
 to my office to consult the law on the subject, be 
 fore I encountered her ladyship with the direful 
 news of the antics of the Fire Fiend. There I 
 quickly found that after a reasonable time and op 
 portunity to take away his baggage has been given 
 to a traveller, the company s responsibility as 
 carriers ends : they are no longer responsible for 
 its absolute security, but degenerate into mere 
 warehousemen bound to exercise only that care 
 which a prudent man ordinarily does in keeping 
 
 W. & R. OF T. 17 
 
258 TELEGRAMS AND FIRE. 
 
 his own goods of a similar kind and value ; 1 and 
 that care is exercised by the company placing the 
 goods in a secure warehouse ; 2 or, as a Canadian 
 Chief Justice of high repute and great experience 
 says, "the terminus of the transport being reached, 
 the duty of the common carrier is fulfilled by 
 placing the goods in a safe place, alike safe from 
 the weather and from danger of loss or theft." 3 
 It was perfectly clear that the company was not 
 responsible to me for the loss of my baggage, 4 
 through the foul pranks of the Fire Fiend. And 
 it would have been just the same if it had been 
 stolen from the warehouse ; 5 or if on the arrival of 
 the train I had taken possession of the trunks, and 
 afterwards for my own convenience handed them 
 back to the baggage-master at the station to be 
 kept until sent for, and they had come to grief or 
 been pilfered ; 6 unless, indeed, there was some 
 gross negligence on the part of the company. And 
 I found by my books that it is the duty of the 
 company to have the baggage ready for delivery 
 upon the platform, at the usual place, until the 
 owner may with due diligence call for, and receive 
 
 * Shepherd v. Bristol & Ex. Kw., L. R., 3 Ex. 189 ; Mote v. Chicago & N. 
 W. Rw., 1 Am. Rep. 212 ; 27 Iowa, 22 ; Burnell v. N. Y. C., 46 N. Y. 187 ; 
 Rock Island & Pacific Rw. v. Fairclough, 52 111. 106. 
 
 2 Bartholomew v. St. Louis, Jacksonville, etc., Rw., 53 111. 227. 
 
 3 Inman v. Buffalo & L. H. Rw., 7 U. C. C. P. 325 ; O Neill v. Great West 
 ern Rw., Ibid. 203; Bowie v. Buffalo, Brantford, & G. Rw., Ibid. 191. 
 
 < Roth v. Buffalo & State Line Rw., 34 N. Y. 548. 
 
 o Penton v. Grand Trunk Rw., 28 U. C. Q. B. 367 ; Campbell v. The same, 
 Hilary Term, 1873 (Ont.). 
 Minor v. Chicago & North Western Rw., 19 Wis. 40. 
 
TELEGRAMS AND FIRE. 259 
 
 it ; and that it is the owner s duty to call for and 
 remove it within a reasonable time ; and that 
 " reasonable time " is directly upon the arrival of 
 the train, making a reasonable allowance for delay 
 caused by the crowded state of the depot at the 
 time ; but that the lateness of the hour makes no 
 difference if the baggage be put upon the plat 
 form. 1 Nor does the fact of it being Sunday make 
 any difference. 2 But if the traveller does not 
 choose to call and take away his impedimenta (as 
 Julius Caesar calls it), the company do all they 
 need by putting it into their baggage room arid 
 keeping it for him, with the liability of ordinary 
 warehousemen. 
 
 Thus conscious that I should wring nothing 
 from the iron grasp of the railway company, and 
 that out of my own professional earnings I should 
 have to replenish my wife s wardrobe, I went 
 home sad, down-cast and dejected, to break the 
 direful news to her. 
 
 Scarcely had I entered my house, which had 
 been so peaceful and calm during the past few 
 weeks, when my alter ego flew at me with a perfect 
 storm of words and questionings as to why her 
 trunks had not yet come up, and assertions that 
 she had literally nothing to wear. (Though to the 
 eyes of an ordinary mortal she appeared far from, 
 being in puris naturalibus.) 
 
 1 Ouimit v. Henshaw, 36 Vt. 605. 
 
 2 Jones v. Norwich & N. Y. T. Co., 60 Barb. 193. 
 
260 TELEGRAMS AND FIRE. 
 
 When I told of the fate that had befallen her 
 paraphernalia the storm increased into a hurri 
 cane, and when it was announced that the com 
 pany were not liable, a perfect tornado a cy 
 clone a typhoon a simoon of words, whirled 
 with terrific fury around my head, then a perfect 
 waterspout shot forth ; and I, remembering sud 
 denly an appointment down town, vanished from 
 the scenes, resolved that henceforth both myself 
 and my amiable but hysterical spouse would 
 eschew the iron horse and his train forever, and 
 living peaceable at home avoid the Wrongs and 
 Rights of Travellers by Rail, by Stage, by Pri 
 vate Conveyance. 
 
INDEX. 
 
 A. 
 
 PAGE 
 
 Accident, different kinds of 7 
 
 horses frightened by 5 
 
 not sufficient proof of negligence . . 106,177 
 carriers not liable for unforeseen . . .54,176 
 number of 185,188 
 
 Accident Insurance, what is an accident ? . 36 
 
 Lord Cockburn s definition 36 
 
 Michigan definition 36 
 
 Maryland and New York . . . . 36, 37 
 
 injury, no accident to car 37 
 
 compensation for injuries 37, 38 
 
 none for loss of time 38 
 
 injuries from external causes 39 
 
 while bathing 40 
 
 caused by negligence ...... 41 
 
 wilful exposure 42 
 
 Acts of Parliament, not those of the Apostles . .119 
 
 Agents. (See SERVANTS.) 
 
 carrier liable for torts of .... 248-251 
 
 for wilful acts within range of employment . . 248 
 injured one must show authority of . . 248 
 
 persons acting, presumed to be .... 250 
 
 assault by . . . . . . 249 
 
 exemplary damages . . . . . . . 250 
 
 carrier liable if agents disobey .... 251 
 
 but not when they exceed authority . . . .251 
 
 Alighting at Railway Stations, cars should be stopped at 
 
 safe place 147, 148 
 
262 INDEX. 
 
 Alighting at Railway Stations Continued. 
 
 is calling out name an invitation to alight . 152-154 
 
 depends on circumstances 153 
 
 stopping of train an invitation 153 
 
 calling out name a mere intimation . . . . 154 
 
 jumping off the steps 150,151 
 
 company should assist at difficult places . . 154 
 passenger should ask train to be put in a proper place 154 
 alighting when warned not to . . . . 155 
 
 sufficient time must be given 155 
 
 sick or drunken passengers 156 
 
 American Cases, authority of 109 
 
 Anecdote, Lord Kenyon and Erskine . . . . 19 
 
 The Devil s Invincibles 59 
 
 a sleeping-car 205 
 
 Arrests, by carrier s servants 166,251 
 
 Authority, Acts in Excess of, arresting to prevent a 
 
 crime 166 
 
 carriers not liable for acts of agents .... 251 
 
 B. 
 
 Baby, value of leg of 222 
 
 Baggage of Passengers. (See CHECKING BAGGAGE.) 
 
 falling on one s toes . . . . . . .123 
 
 checking 95, 96 
 
 what is personal baggage ? . . . 158,162,240 
 owner may recover for loss, unless negligent . 82, 159 
 what is not personal baggage . . . 160, 165 
 goods cannot be taken instead of . . . .161 
 earner not liable beyond actual value . . . 164 
 
 notice limiting liability 165, 239 
 
 when liability begins . . . . . 236 
 
 when it ceases . ... . . . 258, 259 
 
 can only recover for one s own . . . . 237 
 
 left in car by servant . . . . . 237 
 
 need not be marked with name .... 237 
 
 carrier liable even if with owner ... 83, 238 
 loss on other lines . .... 238, 239 
 
INDEX. 
 
 263 
 
 Baggage of Passengers. Continued. 
 
 money with baggage ..... 108-110 
 
 is a present baggage f . . , . . 241 
 what is sufficient re-delivery . . . 242, 258, 259 
 hotel omnibuses, lost in ...... 242 
 
 liability ceases when ready for re-delivery . .257 
 
 loss of by fire at station 257 
 
 stolen from warehouse 258 
 
 owner should remove it in reasonable time . . 259 
 
 not properly packed 48 
 
 carrier has lien on, for fare 76 
 
 Bed-clothing, is it baggage ? 163 
 
 Bridge, when municipality must repair .... 85 
 at railway station, out of repair .... 93 
 
 C. 
 
 Calling out name of station, duty of conductor . 153, 155 
 (See ALIGHTING AT STATIONS.) 
 
 Care. (See DUE CARE, NEGLIGENCE, PASSENGER CARRIERS.) 
 
 Carelessness. (See NEGLIGENCE.) 
 
 Of Railway Company, misplacement of switch . . 104 
 
 injury not positive proof. of 106 
 
 Of Injured Party, jumping off platform . . .105 
 
 running against fixtures 105 
 
 losing money . ... .110 
 
 jumping off train 150-152 
 
 jumping off train in motion . . . 122, 155, 235 
 
 Carriers Act Ill 
 
 Carrying past Stations, damages for . . . 120,121 
 
 Change, right to expect or demand . . . . 125 
 helping one s self to 166 
 
 Checking Baggage, when must be done . . .95, 96 
 
 penalty for refusing .95 
 
 not necessary 158 
 
 is merely additional precaution .... 159 
 
 check is evidence of receipt of baggage . 167 
 
 Children, running over . ". . . 26,27 
 damages for injuring . . . 196-200 
 
264 
 
 INDEX. 
 
 Children. Continued. 
 
 loss of leg and hand 196 
 
 travelling without ticket . . . . . 197 
 misconduct of guardian . . . . 198-200 
 
 wandering about . . . . . 199^ 200 
 
 cave required of parents 200 
 
 damages for death of 218,219 
 
 value of limbs of 196,222 
 
 Cloak Room, should be kept open 164 
 
 Colored Persons, separate cars for 128 
 
 Compensation. (See ACCIDENT INSURANCE, DEATH, 
 DAMAGES.) 
 
 Conductor, wilful delay of .... * v . . 101 
 
 his hat and badge . . . . . . .111 
 
 his duty when there is fighting in cars . . 126, 127 
 whom he may refuse to receive . . .126 
 
 when he may eject passenger . . . . 131 
 
 is the agent of company . . . . . .133 
 
 carelessness of 170, 171 
 
 should call out names of stations . . . .155 
 kissing a traveller 249 
 
 Crossings. (Sec RAILWAY CROSSINGS.) 
 
 C rtim Cater ... 147 
 
 D. 
 
 Damages. (See PASSENGER CARRIERS, NEGLIGENCE.) 
 
 from bad roads . . 30, 33 
 
 trains behind hand . . . . . 98, 99 
 
 unpunctuality of trains 99,100 
 
 passenger carried too far 120, 121 
 
 passenger bitten by dog 1 24 
 
 passenger injured by others . . . . .127 
 passenger unlawfully ejected . . . 132, 135 
 
 too remote 133 
 
 for loss of baggage. (See BAGGAGE.) 
 injury caused bv vis major . . . . . 178 
 nnforseen accidents . . . 176, 182 
 
 discoverable defects . . . . . 177, 179 
 
INDEX. 265 
 
 Damages. Continued. 
 
 injuries to children. (See CHILDREN.) 
 
 to passengers and employees .... 209, 226 
 
 injuries producing death. (See DEATH.) 
 
 amounts recovered for injuries and death . 218-223 
 
 excessive, ground for new trial .... 222 
 
 prospective . . , . . 223 
 
 for what injuries given 223, 224 
 
 Deadhead. (See FREE PASSENGERS.) 
 
 Death Produced by Injuries, remedy for, purely statutory 209 
 
 Lord Campbell s Act 209 
 
 who may sue for damages 210 
 
 damages for pecuniary loss 210 
 
 for mental anguish . . . . . . 210-212 
 
 loss of wife 212 
 
 loss of mother 212 
 
 death must not be instantaneous .... 214 
 different rules as to amount of damages . . 214-217 
 damages not to be full compensation . . . 217 
 deceased diseased, or of bad character . . .217 
 
 or heavily insured 217,218 
 
 amounts given 218-220 
 
 settlement before death 218 
 
 Delay, carrier liable in damages for . . . . 98, 99 
 from bad roads 25 
 
 Devil s Invincibles, the 59 
 
 Dog, company responsible for acts of, at station . . 124 
 lost dog 235 
 
 Driving. (See STAGE COACHES, ROAD.) 
 negligence in, chapters I. and II. 
 
 owner, if driving, responsible . . . . 13 
 
 carriage jointly hired, joint liability . . .13 
 
 too fast 22 
 
 upsetting 23, 29, 56 
 
 turning out, when 23 
 
 running over children . . . . . 26, 27 
 
 running against drunken men .... 28 
 
 driver must be capable . . . . . .29 
 
 horses running away . . . ... 31-34, 55 
 
266 INDEX. 
 
 Driving. Continued. 
 
 horses shying 32 
 
 horses and carriage must be sound ... 33 
 need not examine carriage every day . . 65, 66 
 in dangerous places ...... 84 
 
 Drunken Passenger, when earner may refuse to take 126, 127 
 when conductor must assist 156 
 
 Due Care, what it is 182 
 
 carrier must exercise 176 
 
 not enough to give up passenger s corpse . . 176 
 carrier must use best precautions in practical use . 177 
 
 E. 
 
 Eviction from Cars, for not showing ticket . . . 125 
 Excessive Damages, a ground for new trial . . . 222 
 Excursion Trains, company liable for accidents on . 202 
 
 F. 
 
 Fare, (See TICKETS, PASSENGERS.) 
 
 passenger refusing to pay on cars . . . .125 
 prepayment on stages ...... 45, 47 
 
 if paid, seat reserved 46 
 
 if not prepaid, payable at end of journey . . 47 
 carrier has lien on baggage for .... 76 
 
 but not on passenger 76, 139 
 
 tendering at last moment 
 
 must be paid even if no seat provided . . . 130 
 Ferryman, Fare in advance to . * .68 
 must provide safe boats, etc. . . . 68, 9 
 
 liable for safety of horses, though driven by owner 69, 70 
 must work at all times . . .70 
 horses jumping overboard ..... 
 
 Fighting in Car 126 - ^ 
 
 Fingers, Squeezing, in Car . . . . 170,171 
 Fire, baggage burnt at station . . . . 257, 258 
 Fishing-Rod, is personal baggage .... 243 
 
 Fog, accidents arising from ...... 54 
 
INDEX. 267 
 
 Free-pass Holders, entitled to be carried safely . 201, 202 
 unless special agreement exempting carrier . 202, 204 
 
 newsboy 204 
 
 loss of baggage of 236 
 
 G. 
 
 Getting on and off, stage coach 79 
 
 train in motion 155, 235 
 
 Good for this day only, ticket marked . . . .114 
 
 or " for this trip " 114 
 
 " for twenty days from date " 115 
 
 Gun and Pistols, considered personal luggage . 243, 244 
 
 H. 
 
 Hand, value of a 220 
 
 Horses Running Away 31, 34, 55 
 
 Husband and Wife, entitled to carry double baggage . 107 
 
 henpecked husband s will 213 
 
 injuries to wife 224 
 
 I. 
 
 Ice and Snow, on roads and sidewalks . . . . 8, 9 
 falling off houses . . . . . 10 
 
 on railway platforms 94 
 
 Indian Railways 175 
 
 Indecision . 75, 163 
 
 Infirm and Aged People, accidents to . . . .11,12 
 Insurance against Accidents ..... 36-42 
 Invitation to alight. (See ALIGHTING AT STATIONS.) 
 Iron Horse, injuries from charge of . ; . . .104 
 
 J. 
 
 Jewelry, is personal baggage .... 240, 245 
 
 Jumping off stage coach ....... 50 
 
 train in motion 122, 155, 235 
 
 through fear of accidents 122,156 
 
268 INDEX. 
 
 Junctions, liability of various companies at . . 123 
 
 Jury, decisions of . . . . . . . 195 
 
 K. 
 
 Kiss, company pays for conductor s 249 
 
 L. 
 
 Ladies Car, who may use 129 
 
 when train full men may enter . . . . 130 
 
 Lawyers 76, 77 
 
 Leg, value of a . 221 
 
 value of a baby s . . 222 
 
 Limitation of Liability, of carriers for baggage . 165, 239 
 Locomotives, must ring or whistle at crossings . . 64, 88 
 
 Loss of Time 224 
 
 Lost Baggage. (See BAGGAGE.) 
 Lost Ticket. (See TICKET.) 
 
 loss of ticket falls on passenger . . . 117,118 
 even though previous purchase proved . . .119 
 
 M. 
 
 Man run over 232 
 
 Master. (See KAILWAY COMPANY, STAGES, STEAM 
 BOAT.) 
 
 when liable for acts of servants . . . . 2, 3 
 
 Matrimonial Prospects, damages for injuries to . 224, 225 
 
 Merchandise, not personal baggage .... 245 
 
 Money of Passengers, when carrier liable for . 82, 108-110 
 
 negligence of passengers . . . . .83,110 
 
 not beyond a reasonable sum 108 
 
 Musical Instruments, are they personal baggage ? . 244 
 
 N. 
 
 Negligence of Party. (See PASSENGER CARRIERS.) 
 
 in charge of children 27 
 
INDEX. 
 
 269 
 
 Negligence of Party. Continued. 
 
 in driving . . 3 - 34 
 
 plaintiff in fault 28 
 
 party is affected by driver s negligence ... 65 
 
 at stations -105 
 
 arms and legs projecting . 
 
 injury received in alighting .... 151,152 
 
 in entering car 1* 
 
 on platform car, or in baggage, wood, or freight 
 
 car 19- 194 
 
 no room inside l91 
 
 party in express car 192 
 
 when killed .210 
 
 Negligence of Bailway Companies, injury not sufficient 
 
 proof of 10G 
 
 starting train too soon 1 22 
 
 baggage falling on passenger 123 
 
 stopping at unsafe places 
 
 defect in car window 169 
 
 squeezing fingers 170 > 171 
 
 unforeseen accident 17G 
 
 injury prima facie proof of negligence . . . 177 
 
 latent defects 181 > 182 
 
 loss of a dog 235 
 
 not whistling at crossings 64. 
 
 (See RAILWAY COMPANY, STATIONS.) 
 
 Negligence of Servants, in driving . . 2, 3, 4 
 towards fellow-servants ... . - 4 
 
 baggage falling off track 12 7 
 
 Negligence of Stage Coach Owner, liable for negligence 
 
 of driver 50 5l 
 
 drivers must watch where they go . . .51 
 
 plaintiff s negligence . . 
 
 owner answerable for smallest negligence ... 52 
 
 or defects in the coach 
 
 unless defects are hidden 52 
 
 driver must be discreet, and all things sound 53 
 
 owners not actual insurers 54 
 
 real accidents . 54, 55 
 
270 
 
 INDEX. 
 
 Negligence of Stage-coach Owner. Continued. 
 
 horses running away 55 
 
 passenger suffers from driver s neglect . . .56, 65 
 
 party falling in ascending 79 
 
 damage from rain 81 
 
 acts of God 81 
 
 driver charging for parcels 83 
 
 dangerous places 84 
 
 P. 
 
 Passenger. (See FARE, TICKET.) 
 By Coach. 
 
 negligence of driver affects passenger * . . 56, 65 
 driver must stop at usual places .... 78 
 
 By Railway. 
 
 on wrong train . . . . . . 122 
 
 refusing to pay, may be put off . . . 125, 131 
 
 tendering fare at last moment . . . . 125 
 
 drunk and disorderly . .... 126, 127 
 
 may be excluded for bad conduct . . . . 127 
 
 should be treated with respect, 129 
 
 without seat, must pay 130 
 
 but may sue the company .... 130, 131 
 
 when he may be put off . . . . . . 131 
 
 ticket mislaid ... . . . . . 132 
 
 damages for ejectment ..... 132-134 
 
 killed in being put off . . . . . .135 
 
 better quietly submit to conductor . . 135, 136 
 
 getting off at intermediate stations . . . 137, 140 
 not delivering up or showing ticket . . . 137 
 
 rights at way stations 140, 141 
 
 must conform to regulations . . . . . 190 
 
 in improper places 190-193 
 
 walking through train . . . . . . 194 
 
 Passenger Carriers, not insurers . . . 176, 181, 54 
 extent of liability .... 52-54, 181-184 
 
 Pedestrians, may walk on road 3, 15 
 
 must look out at crossings ... 15 
 
1ND-EX. 271 
 
 R. 
 
 Railway Accidents, very few . . . ... 
 
 Bail way Companies. (See NEGLIGENCE.) 
 
 sign-post in the way 
 
 letting off steam at crossing 67 
 
 must take more care of passengers than strangers . 
 
 need only stop at usual places 121 
 
 must maintain order 
 
 must forward passengers if line blocked . . .173 
 are not insurers of passengers . . - 176,181 
 extent of liability . . . .176,180 
 
 rule in England as to liability . . . 178 
 
 in New York . . i77 
 
 do not warrant that car is perfect . 
 
 presumption when passenger injured 177, 180 
 responsible for utmost care . . . 176,178,183 
 obligation extends to all apparatus of transporta 
 tion "7,178 
 
 perfect apparatus not expected . . 177, 182 
 
 degree of care required 
 
 must adopt every precaution in known use . .177 
 contributory negligence . . ... . 190 
 
 seats must be provided 190, 191 
 
 too many in train . . . * *^ 2 
 injuries to children. (See CHILDREN.) 
 responsible for all lawfully aboard 
 
 may limit liability 202-204 
 
 limitation does not extend to independent wrongs 203 
 injuries producing death. (See DEATH.) 
 liability for acts of agents ana servants. (See 
 AGENTS, SERVANTS.) 
 
 bad construction of line 2 8 
 
 rule as to passengers and employees 
 
 wrongs done by strangers . . . . 232, 233 
 
 when liability for baggage ceases . . . 257, 258 
 
 afterwards liable as warehousemen . . . 2.57 
 
 Railway Act of 1868 . . . . ... .119 
 
272 INDEX. 
 
 Railway Crossings, people must look out at . . 63, 64 
 
 letting off steam at 67,68 
 
 watchmen not always needed at .... 88 
 when crossing dangerous . . . . . 89 
 
 bell or whistle to be sounded at ... 64, 88, 89 
 diligence required in crossing, though bell is not 
 
 rung . 64, 90, 91 
 
 negligence of driver of carriage affects all in it, . 65 
 
 leaving railway gates open 90 
 
 rails must be level with road . , . . 92 
 
 Railway Police . . . . . . . . .167 
 
 Railway Stations. (See ALIGHTING AT STATIONS.) 
 
 company liable for dangerous access to . .. 93, 145 
 
 dangers at 94, 104 
 
 must be fit for occupation . . . . 103 
 
 must be careful at . . . . 106, 141 
 
 ferocious dogs at . . . . . . 1-4 
 
 platforms 106, 145, 154 
 
 hole in platform . . . . . . . 143 
 
 should be properly fenced . . . . .144 
 
 should be lighted . . . . . . 145 
 
 Road, should be kept in repair 8, 57 
 
 slippery . . ... . ... 
 
 repair depends on locality . . - . . .11 
 railing giving way on ...... 
 
 accidents on Sunday on 18, 19 
 
 snow and ice on 23, 24 
 
 when impassable may go in fields ... 24, 26 
 deviating from 29 
 
 Road, Laws of the. (See DRIVING.) 
 
 keeping on right side . . 
 greater care needed on wrong side . . . 14, 70, 73 
 rules in England, Canada and United States 
 may be departed from . . . .72 
 
 passing laden wagons . . . . . 72, /4 
 
 not applicable to buildings . . 4 
 
 Runaway Horses, injuries done by . . 6,31,55 
 
 Rural Sights and Sounds . . ... . 60 64 
 
INDEX. 273 
 
 s. 
 
 Samples and Patterns, not personal luggage . . 1 65 
 
 Servants. (See MASTERS, RAILWAY, STACK.) 
 
 when master liable for acts of 3 
 
 master in general not liable for injuries to 4 
 
 negligence of fellow-servants .... 226-228 
 improper servants or machinery .... 226 
 
 who is a fellow-servant ? 228 
 
 servants of different grades 228 
 
 Sidewalks, should be safe and in repair 
 
 slippery ......... 9 
 
 Sleeping-car Scene 205 
 
 Smoking-car 130 
 
 Snakes and Eels 6 
 
 Snow Blockade, duty of company . . . . . 173 
 on Pacific Railway . . . . .175 
 StageCoaches. (See NEGLIGENCE.) 
 
 literature of 44 
 
 payment of fare. (See FARE.) .... 
 
 owner warrants soundness of stage and equip 
 ments . . . . . . . . 45, 46, 53 
 
 reserving inside ....... 46 
 
 racing 49 
 
 negligence of driver . . . . . 50, 51 
 
 passenger entitled to seat as agreed ... 46, 79 
 jolted off . . ....... 57 
 
 time for refreshments ..... 78 
 
 when fare paid, seat may be taken at any time . 79 
 
 owners not actual insurers 54 
 
 Stations. (See RAILWAY STATIONS.) 
 
 Stairway, slippery * . 24 
 
 Stopping at way stations . -. 115 
 
 Strangers, acts of . . .... . . 102 
 
 Sunday, deeds of necessity and charity allowed on . 16,17 
 visiting sweetheart . . . . ll> 
 
 going to church on 17 
 
 accidents on 
 
 18 
 
274 
 
 INDEX. 
 
 T. 
 
 Telegrams and Telegraph Companies, specimen tele 
 gas 252,255 
 
 company responsible for negligence . . . 252 
 notice as to repeating telegrams . . . 252 254 
 effect of notice .... 954 955 
 
 does not free from wilful mistakes .... 254 
 
 or delay in delivery ...... 254 
 
 sender must be aware of the rule . 254 
 
 company liable for their own default . . . 253 
 who may sue ......... 2 53, 254 
 
 Ticket, not proof of contract to cany . . 101, 121 
 
 annual or season 1 1 1 
 
 , passenger need not buy before starting . 112,125,138 
 
 must be produced when demanded . . r 113 
 
 exchanging ticket for check . ]13 
 
 " good for this day only " . . . , , 114 
 
 . " good for this trip only ir .114 
 
 unmutilated, but old . , -114 
 
 coupon ticket U5 
 
 cannot be used, twice 115 
 
 if journey interrupted, ticket useless- . . no 
 if lost, fare must be paid again . . 117, 118, 139 
 even if previous payment proved . . . 118,119 
 producing ticket, OT eviction . . . 125 
 
 ticket mislaid 132 
 
 unlawfully taken by conductor . 133 
 
 discount on 138 
 
 children without . . . . . . . 197 
 
 through ticket 230 231 
 
 Time Tables, representations in .... 98 
 
 must be produced 101 
 
 proof of . . 101 
 
 change of 99 
 
 Title Deeds, not personal baggage 160 
 
 Tobacco-perfumed Stations . . . . . 103 
 
 Track, must be kept in order . ..... 229 
 
INDEX. 275 
 
 Trains, must be run At regular hours . 96 
 
 time of starting must be advertised . 96 
 
 un punctuality of . 98, 99 
 
 missing connection 99, 100 
 
 taking special tram 100 
 
 separate car for colored people 129 
 
 ladies car 129 
 
 excursion trains 128 
 
 smoking car 130 
 
 starting too soon and without notice . . 140, 141 
 running over a man 2.32 
 
 Travelling in Carriage, within meaning of accident 
 
 ticket 40,41 
 
 U. 
 Upsetting. (See DRIVING-.) 
 
 y. 
 
 Velocipedes are nuisances .12 
 
 W. 
 
 Walking on Track , .... 92 
 
 Windows of Car, falling down . . . . .169 
 
 need not be protected .... .170 
 
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