LEGAL RECREATIONS.

VOL. IV.

THE LAW OF THE ROAD.

THE
LAW OF THE ROAD;
OR,
WRONGS AND RIGHTS OF A TRAVELLER.

BY
R. VASHON ROGERS, Jr.
A BARRISTER AT LAW OF OSGOODE HALL.

SAN FRANCISCO:
SUMNER WHITNEY AND COMPANY.
NEW YORK: HURD AND HOUGHTON.
Cambridge: The Riverside Press.

Copyright, 1876,
By SUMNER WHITNEY & CO.

RIVERSIDE, CAMBRIDGE:
STEREOTYPED AND PRINTED BY
H. O. HOUGHTON AND COMPANY.

PREFACE
TO THE
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, information 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.

Though written in Ontario, the book will be found applicable to all parts of the Dominion, as well as to the United States and England.

The author, even if the style is deemed novel, does not seek the praise of originality for the substance of the following 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 probably be corrected, and if no such demand is made the book has received as much labor as it deserves.”

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 American Eagle; thither also, the Canadian Beaver, with a maple-leaf, the emblem of sweetness, in his mouth, has wended its way: a striking contrast to the deeds of one hundred years agone, 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 traversed 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, enlarged, abridged (the watery element being omitted),[1] and rendered a more suitable place 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 anonymously, the author has been induced, by the kind notices 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, vinegar and gall.

R. V. R. Jr.

Kingston, Ontario,
June, 1876.

WRONGS AND RIGHTS OF A TRAVELLER.

CHAPTER I.
DRIVING.

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 Driving 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 accompaniments of a horse or two and a man.

It was my intention, pursuant to the time-honored 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 palpitations of her heart having somewhat subsided, and her heaving bosom sunk to rest, she exclaimed:—

“O Eldon, that horrid John must be drunk! 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.”

“Ah, my dear Elizabeth, calm your troubled mind;” I coolly replied, “John, without my knowledge, and wrongfully, took my horse and sleigh for some 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.[2] 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;[3] 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.”[4]

“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, it matters not that he disobeyed his express orders in going out of his way, or made a detour to please himself.”[5]

“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?” replied I, impatiently; and then, seeing that my wife did not like the adjective, I added more feelingly, 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 walking 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!”[6]

“Yet John says he told the man to get out of the way, and he wouldn’t do it;” pleaded my wife.

“That does not matter.[7] I hope no more damage was done?” I queried.

“Yes; the horse shied and upset the sleigh; and John says that all his—I mean John’s—ribs are broken, and that he is kilt entirely; and he swears that he’ll make you pay for it—that he’ll sue you.”

“Let him sue away and be hanged; he’ll get nothing for his pains but the pleasure of spending his earnings; he is my servant and has to run the risk of being hurt in my employment.”[8]

“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’ll sue too.”

“Oh, I’m sorry for that; I like her, and then she was so pretty.”

“Eldon! how dare you say so—to your wife, too!”

“I—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.[9] Well, ’tis a pretty how-do-ye-do for a New Year’s gift. I’ll go down and see the wretch.”

Off I went, glad to get out of Elizabeth’s sight. She had grown a little jealous because I had shown a few trifling civilities to pretty Eliza Jane,—very trifling they were, I assure you; besides 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.[10] 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,[11] 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 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, that surely is only an obiter dictum, not a decision of that worthy judge.”

“Of course,” replied Jones; “but all the dicta of judges are entitled to weight.” Tom had just been called to the bar.

“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 exclamation, “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 endeavored to avoid—glided merrily on. As I whisked the snow off, Jones in wrathful accents consigned the juvenile to a place beyond the possible limits of frost, and exclaimed:—

“I’ll 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 endangered.”

“True,” I replied, “but the accident was not wholly caused by the slipperiness of the pavement; the unlawful and careless act of the boy in coasting had something to do with your overthrow; and in the exactly similar case of Mrs. Shepherd it was decided that the city was not liable.”[12]

“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 railings when necessary, to enable people, by the exercise of ordinary care, to move about with safety and convenience.”[13]

“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 then regard must be had to the locality and intended uses.[14] Towns are liable only for injuries caused by defects and obstructions for which they might be indicted.[15] They do not insure the safety of all using sidewalks in the depths of our northern winters;[16] and it has been expressly decided that the mere existence of a little ice on the walk is no evidence of actionable negligence:[17] 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.[18] One must go gingerly and with due care on such occasions.”[19]

“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.[20] 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 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 vertebræ were all in working order, I replied:—

“Ah, no! I cannot do so with success.[21] 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 removed it, he probably would have been liable to me,[22] or, if that old awning had fallen on me,[23] 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.[24] 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.”[25]

“Look at that poor old woman; she will come to grief most assuredly.”

Before us toddled an aged granny, assisting her septuagenarian extremities with an antique looking 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;[26] people should exercise common prudence. One who has poor sight should take greater care in walking the streets than one in full enjoyment of her faculties.”[27]

“I fancy the least obstacle or hole would upset her,” said Tom.

“And if she did stumble over a small impediment 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.[28] But the degree of repair in which the walks must be kept depends considerably 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.”[29]

“If she did meet with an accident and was held entitled to damage, what would she get in hard cash?” asked Jones.

“’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.”[30]

“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.[31] Look out, there is another sled!” As I rang the door-bell I heard Jones mutter:—

“Those boys ought to be indicted for obstructing the sidewalk in such a way.”

“True for you,” I mentally ejaculated, “I remember that one of those bewitched and besaddled wheelbarrow concerns, yclept velocipedes, was held to be an indictable obstruction.”[32]

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 influences 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.[33] Even if I had only borrowed the turn-out, and kindly let you take the ribbons, I still would be the party responsible for negligence.”[34]

“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,[35] and if we had hired the horses to draw my sleigh, and had likewise obtained the services of a driver, then we would not be liable for the negligence or carelessness of that driver.”[36]

“Look out! you had better keep on your own side of the road,” said Jones.

“Never mind, I can go on either side. I’ll only have to keep my eye a little wider open to avoid collisions;[37] besides, there is plenty of room for any person to pass, so he would have only himself to blame in case of accidents.”[38]

“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;[39] 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 prevent my recovering against a negligent driver, as long as there is room for him to pass without inconvenience.[40] Nor would it interfere with my getting damages from the city for injuries caused by their defective roads.[41] Whoa, old fellow!” I cried, just as I was on the point of running over a philosopher who was walking slowly over a crossing gazing up at the azure vault of heaven. “What a stupid donkey; it is as much his business to be watchful and cautious that he does not get under my sleigh, as it is mine that my sleigh does not get over him![42] 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.[43] 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.”[44]

“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.[45] But we may pass a pedestrian promenading on the road on whichever side is most convenient, for the rules of the road do not apply to walkers;[46] they have no prior right of way.”[47]

“No; men walking and driving have equal rights on the streets; all must exercise care and prudence;[48] and a pedestrian should not indulge in nice calculations of chances, and run the gauntlet of carriages in crossing a road.”[49]

“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?[50] 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 Sunday laws.”[51]

“Well, but my drive was a work of charity (according to its original meaning), if not of necessity. I was going to see Miss Blank.”

“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 betrothed 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.[52] In one case, however, it was held that a man might lawfully hire a horse and carriage to go and visit his paternal progenitor, who resided in the country.[53] 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;[54] not even if they die from the Jehu-like driving.[55] 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?”

“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 intention of going anywhere save home again, is not travelling within the meaning of the act.[56] 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 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 $5,000 damages, and the court refused to interfere.[57] 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.”[58]

“But is not the rule in Massachusetts exceptional?” queried my companion.

“In Vermont and Maine, as well as in Massachusetts, 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 highway at a time when he is by law forbidden to travel on it.[59] 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;[60] and they cannot be sustained consistently with the broad principles of the law of negligence laid down by the courts generally.[61] 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.[62] If one breaks the law, the law itself, and not a carrier or town, should inflict the penalty. In other States,—New Hampshire, New York, Pennsylvania, Wisconsin, for example, one can sue for damages though injured while travelling on Sunday.[63] And in England Sunday travellers are especially favored by the legislature, for to none others can the publican dispose of beer, wine or spirits on that day.[64] But come, what about Miss Blank?”

“By the way,” said Jones, “have you seen that anecdote told by Erskine about Lord Kenyon, and which has recently been brought to light?”

“No. Has it anything to do with driving?”

“Everything. Kenyon was trying a case at the Guildhall and seemed disposed to leave it to the jury to say whether the plaintiff might not have saved himself from being run into by the defendant 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 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 God 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.

FOOTNOTES:

[1] Also the List of Cases.

[2] M’Manus v. Crickett, 1 East, 106; Croft v. Alison, 4 B. & Ald. 590; Sleath v. Wilson, 9 C. & P. 607, qualified by Seymour v. Greenwood, 6 H. & N. 359, 7 H. & N. 355; Lamb v. Palk, 9 C. & P. 631; Sheridan v. Charlick, 4 Daly, 338.

[3] Roe v. Birkenhead, etc., Rw. Co., 7 Ex. 36.

[4] Joel v. Morison, 6 C. & P. 501.

[5] Limpus v. London Omn. Co., 1 H. & C. 526; Joel v. Morison, 6 C. & P. 501; Mitchell v. Crassweller, 13 C. B. 237; Seymour v. Greenwood, 7 H. & N. 356.

[6] Boss v. Litton, 5 C. & P. 407; Brooks v. Schwerin, 54 N. Y. 343.

[7] Woolley v. Scovell, 3 M. & Ry. 105.

[8] Paterson v. Wallace, 1 Macq. 751; Meara’s Admr. v. Holbrook, 20 Ohio St. 137; C. & A. R. R. Co. v. Murphy, 53 Ill. 339.

[9] Lord Cranworth, Bartonshill Coal Co. v. Reid, 3 Macq. 294-307.

[10] Wakeman v. Robinson, 1 Bing. 213; Hammack v. White, 11 C. B. (N. S.) 588; Gibbons v. Pepper, 1 Ld. Raym. 38; Jackson v. Bellevieu, 30 Wis. 257; Livingston v. Adams, 8 Cow. 175; Ficken v. Jones, 28 Cal. 618.

[11] 2 Lev. 172; 1 Ventr. 295.

[12] Shepherd et ux. v. Chelsea, 4 Allen, 113; Hutchinson v. Concord, 41 Vt. 271; Ray v. Manchester, 46 N. H. 59.

[13] Hixon v. Lowell, 13 Gray, 59; Barber v. Roxbury, 11 Allen, 320; Hewison v. New Haven, 34 Conn. 142.

[14] City of Providence v. Clapp, 17 How. 168.

[15] Merrill v. Hampden, 26 Me. 234.

[16] Ringland v. Toronto, 23 C. P. Ont. 93.

[17] Ibid.

[18] Stanton v. Springfield, 12 Allen, 566; Hutchins v. Boston, Ib. 571 n.

[19] Wilson v. Charlestown, 8 Allen, 137.

[20] City of Providence v. Clapp, 17 How. 168; Church v. Cherryfield, 33 Me. 460.

[21] Hixon v. Lowell, 13 Gray, 59.

[22] Shipley v. Fifty Associates, 101 Mass. 251; S. C. 106 Mass. 194.

[23] Drake v. Lowell, 13 Met. 292.

[24] Tarry v. Ashton, L. R., 1 Q. B. D. 314.

[25] Byrne v. Boadle, 2 H. & C. 722; Randleson v. Murray, 8 Ad. & E. 109.

[26] Davenport v. Ruckman, 37 N. Y. 568.

[27] Winn v. Lowell, 1 Allen, 180.

[28] Ray v. Petrolia, 24 C. P. Ont. 73.

[29] Loan v. Boston, 106 Mass. 450; Bacon v. Boston, 3 Cush. 174.

[30] Hutton v. Windsor, 34 Q. B. Ont. 487.

[31] Stickney v. Salem, 3 Allen, 374; Gregory v. Adams, 14 Gray, 242.

[32] Reg. v. Plummer, 30 Q. B. Ont. 41.

[33] Davey v. Chamberlain, 4 Esp. 229.

[34] Wheatley v. Patrick, 2 M. & W. 650.

[35] Davey v. Chamberlain, 4 Esp. 229.

[36] Laugher v. Pointer, 5 B. & C. 547; Quarman v. Burnett, 6 M. & W. 499.

[37] Pluckwell v. Wilson, 5 C. & P. 375.

[38] Chaplin v. Hawes, 3 C. & P. 554.

[39] Wordsworth v. Willan, 5 Esp. 273.

[40] Clay v. Wood, 5 Esp. 44.

[41] Baker v. Portland, 10 Am. Law Reg. (N. S.), 559, 58 Me. 199; Gale v. Lisbon, 52 N. H. 174.

[42] Williams v. Richards, 3 C. & K. 81.

[43] Woolf v. Beard, 8 Car. & P. 373.

[44] Gray v. Second Avenue R. R. Co., 34 N. Y. Sup. Ct. (2 Jones & Spencer), 519.

[45] Cotterill v. Starkey, 8 C. & P. 691.

[46] Cotterill v. Starkey, supra; Lloyd v. Ogleby, 5 C. B. (N. S.), 667.

[47] Belton v. Baxter, 14 Abb. (N. Y.) Pr. (N. S.) 404.

[48] Brooks v. Schwerin, 54 N. Y. 343.

[49] Belton v. Baxter, supra.

[50] Berrill v. Smith, 2 Miles, 402.

[51] Myers v. The State, 1 Conn. 502.

[52] Buffinton v. Swansey, 2 Am. Law Rev. 235.

[53] Logan v. Mathews, 6 Penn. St. 417.

[54] Gregg v. Wyman, 4 Cush. 322; but see Hall v. Corcoran, 107 Mass. 251.

[55] Morton v. Gloster, 46 Me. 520.

[56] Hamilton v. Boston, 14 Allen, 475.

[57] Feital v. Middlesex R. R. Co., 109 Mass. 398.

[58] Stanton v. Metropolitan Rw., 2 Am. Law Rev. 234.

[59] Johnson v. Warburgh, 14 Am. Law Reg. 547; Jones v. Andover, 10 Allen, 18; Bosworth v. Swansey, 10 Met. 363; Hinckley v. Penobscot, 42 Me. 89; Bryant v. Biddeford, 59 Me. 193.

[60] Per Grier, J. Phil., etc., R. R. Co. v. Phil., etc., Towboat Co., 23 How. 209.

[61] Wharton on Negligence, § 405.

[62] Wharton on Negligence, § 331, and cases cited.

[63] Sutton v. Wauwatosa, 29 Wis. 21; Dutton v. Weare, 17 N. H. 34; Mohney v. Cook, 26 Pa. St. 342; Etchberry v. Levielle, 2 Hilton (N. Y.), 40.

[64] Byles, J. Taylor v. Humphreys, 10 C. B. (N. S.), 429.

CHAPTER II.
A SLEIGH DRIVE.

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 threatening 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.[65] 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.”[66]

“How fast may one go?”

“That is difficult to say. Depends on circumstances. A mile in four minutes is too fast,[67] and if you go a mile in three minutes and ten seconds you become liable for all consequences.[68] Even where a man was driving at only a smartish pace and ran over a donkey he had to pay for it.[69] But one may drive rapidly on an open country road where the chance of collision is slight.”

“Look out, Eldon!” cried my gentle spouse. “See, a load of wood has just upset there! What a nuisance!”

“Not legally so, as the man went over accidentally.”[70]

As we drove past we heard the woodman complaining 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.”[71]

“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 off before I had realized some little independence. “But, I thought the towns, or corporations, 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,[72] and to defects and obstructions caused by drifts of snow.[73] Accumulations of snow and ice must be removed so that streets and highways may be passable.[74] 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 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.[75]

“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.[76] But he may go upon the adjoining land,[77] 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, however, to keep as near the road as possible.”[78]

“It takes much longer going by this circuitous route,” said Mrs. Lawyer, with a woman’s impatience.

“Still, unfortunately, we cannot get compensation from the town for the delay, even though we had to neglect important business in consequence.[79] But if, in addition to being made to neglect business, 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.”[80]

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.”

“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.”[81]

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, “’tis 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 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 damages for the injuries he had inflicted.”[82]

“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.”[83]

“I guess that court was composed of old bachelors,” 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 be that, if the plaintiff’s negligence in any way concurred in causing the damage, he cannot recover unless he could not, by the exercise of ordinary care, have avoided the injury, or the defendant has been guilty of gross negligence, or intentionally did the wrong.”[84]

A little feminine chit-chat now occupied our attention; criticism concerning the friends we had been visiting, their foibles and weaknesses; speculations 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.[85]

The sun had gone to rest; the stars were coming 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 party. My wife exclaimed:—

“Hear the sledges with the bells,
Silver bells!
What a world of merriment their melody foretells!
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 tintinnabulation 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 suffered.[86] One voluntarily encountering perils in the dark does so at his own risk.[87]

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,[88] 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.

“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 occasioned by the accident.[89] In some cases I could recover for the loss of your services and the expenses of your sickness;[90] although in Maine and Connecticut it has been decided otherwise.[91] If I myself were injured, I could get recouped for my loss of time and medical expenses.[92] 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—produced epilepsy and made the man a wreck in body and mind (the doctors said the disease usually terminated in paralysis and mental imbecility), the jury gave the man $500 in compensation, and the judges thought it was none too much.”[93]

“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 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 railings was deemed the proximate cause of the injury, and not the horse becoming frightened or unmanageable.[94] A road which passes over a bank or bridge, or along a precipice, should always be properly guarded.[95] It seems that in the States of Vermont and Massachusetts corporations will be held liable for injuries (caused by defective ways) which are primarily imputable to pure accident (that is to an unexpected occurrence 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.[96] 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.[97] And so when a carriage ran away with the people in it by itself and over an embankment.[98] 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,[99] and it must be in such repair that even skittish creatures may be driven without any risk of danger from its condition.[100] The road, however, need not afford a perfectly clear track to a runaway horse.”[101]

“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 liability 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.”[102]

“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.

“’Tis 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 unlikely and abnormal acts which are considered 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.[103] However, to continue the subject on which I was dilating, although a traveller is bound to have his carriage and harness in good road-worthy condition, or else bear quietly the pains and penalties,[104] 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.[105] 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 harness 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.[106] Where one Moulton”—

“Do you mean Beecher’s quondam friend?” asked my wife.

“Oh, no; it was before the days of Mrs. Tilton’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.[107] 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.[108] 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 accident would equally have occurred if the horse had not been so uncontrollable, before he could get anything out of the town.”[109]

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.

FOOTNOTES:

[65] Abbott v. Wolcott, 38 Vt. 666.

[66] U. S. v. Hart, Peters C. C. 390.

[67] Kennedy v. Way, 3 Law Reporter (N. S.), 184, Brightley (Pa.), 186.

[68] Moody v. Osgood, 60 Barb. 644.

[69] Davies v. Mann, 10 M. & W. 545.

[70] Angell on Highways, § 263.

[71] Hull v. Richmond, 2 Wood. & M. 343.

[72] Mathews v. Winooski Turnpike Co., 24 Vt. 480.

[73] Loker v. Brookline, 13 Pick. 346; Holman v. Townsend, 13 Met. 297.

[74] City of Providence v. Clapp, 17 How. 168.

[75] Wilson, J. Caswell v. St. Mary’s, etc., Road Co., 28 Q. B. (Ont.), 247.

[76] Brailey v. Southborough, 6 Cush. 141; 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.

[77] Woolrych on Ways (2d ed.), 78; Campbell v. Race. 7 Cush. 408.

[78] Taylor v. Whitehead, 2 Dougl. 749; Carrick v. Johnston, 26 Q. B. (Ont.), 65.

[79] Hubert v. Groves, 1 Esp. 148; Griffin v. Sanbornton, 44 N. H. 246.

[80] Greasley v. Codling, 2 Bing. 263.

[81] Tisdale v. Norton. 8 Met. 388.

[82] Robinson v. Cone, 3 Law Reporter (N. S.), 444; 22 Vt. 213.

[83] Hartfield v. Roper, 21 Wend. 615; but see post.

[84] Barnes v. Cole, 21 Wend. 188; Bridge v. Grand Junction Rw., 3 M. & W. 246.

[85] Cassedy v. Stockbridge, 21 Vt. 391.

[86] Rice v. Montpelier, 19 Vt. 470; Tisdale v. Norton, 8 Met. 388.

[87] Mt. Vernon v. Dusouchett, 2 Cart. 586.

[88] Cobb v. Standish, 14 Me. 198.

[89] Jenks v. Wilbraham, 11 Gray, 142.

[90] Hunt v. Winfield, 36 Wis. 154; Woodman v. Nottingham, 49 N. H. 387.

[91] Reed v. Belfast, 20 Me. 246; Chidsey v. Canton, 17 Conn. 475.

[92] Sandford v. Augusta, 32 Me. 536.

[93] Jaquish v. Ithaca, 36 Wis. 111.

[94] Toms v. Whitby, 35 Q. B. (Ont.) 195; S. C., In Appeal, 37 Q. B. 100.

[95] Bliss v. Deerfield, 13 Pick. 102, Davis v. Hill, 41 N. H. 329.

[96] Palmer v. Andover, 2 Cush. 601.

[97] Kelsey v. Glover, 15 Vt. 708; Swift v. Newbury, 36 Vt. 355.

[98] Palmer v. Andover, 2 Cush. 601.

[99] Houfe v. Fulton, 29 Wis. 296; Stone v. Hubbardston, 100 Mass. 49; Kelley v. Fond du Lac, 31 Wis. 180.

[100] Lower Macungie Tp. v. Merkhoffer, 71 Penn. St. 277.

[101] Wharton on Neg. § 105.

[102] Fogg v. Nahant, 98 Mass. 578; S. P., 106 Mass. 278.

[103] Wharton, § 106.

[104] Welsh v. Lawrence, 2 Chitty, 262; Smith v. Smith, 2 Pick. 621.

[105] Hunt v. Pownal, 9 Vt. 411.

[106] Moore v. Abbot, 32 Me. 46.

[107] Moulton v. Sanford, 51 Me. 127; Horton v. Taunton, 97 Mass 266, n.

[108] Davis v. Dudley, 4 Allen, 557.

[109] Titus v. Northbridge, 97 Mass. 258.

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 become so much the reverse of angel’s visits, that though some said I had the hanging mark upon me, I determined to make assurance doubly sure and take a bond of fate in the shape of an “accident ticket;” not that hope told a flattering tale, or that vain expectations of making anything by the transaction filled my soul, but as a 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 determined to find out what an accident, within the meaning of the ticket, really might be; but I discovered that no satisfactory definition of the word had ever been given by the courts. Cockburn, C. J., says that it means some violence, casualty, or vis 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, raging ocean.[110] 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 Samaritan’s friend, I should chance to fall among thieves, who should strip me of my raiment, wound me, and depart leaving me dead, that, probably, would be considered a death by violent and accidental means, for Judge Withey, of Michigan, has laid it down that an accident is any event which takes place without the foresight or expectation of the person, acted upon or affected by the event.[111] In Maryland it has been defined 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 those specially excepted by the policy, are covered by it.[112] And in New York an accident is said to be something which takes place without any intelligent or apparent cause, without design and out of course.[113]

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;[114] 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.[115] This is only fair, as one pays premiums to insure himself on the understanding that his right to be compensated 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.[116] 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 get to my office to work, although I were well enough to transact business in my own bedroom, or clad in a robe de nuit instead of a professional toga.[117] 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:[118] i. e., e. g., a farmer who can do nothing but milk, and a merchant who can only keep his books, are totally disabled within the meaning of such a provision as the above.[119] To be wholly or quite disabled is to be unable to do what one is called upon to do in the ordinary course of business, and this is by no means the same thing as being “unable to do any part of one’s business.”[120]

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.[121]

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 my spinal marrow by lifting my trunk;[122] but it would appear that rupture caused by jumping from the cars while in motion and afterwards running to accomplish certain business, done voluntarily and in the ordinary way, and without any necessity therefor, and with no unforeseen or involuntary movement of the body, such as stumbling, 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 running should stumble or slip.[123] 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 inflammation, whereof I should die, that would be an accidental death![124] Nor would the casual change of occupation from the pursuits of the forum to that of the field, forfeit my right to recover.[125] Where an accident produced hernia, which caused death, it was held that the death was not within the exception of the policy which provided that the company did not insure against death or disability arising from rheumatism, gout, hernia, etc.[126] If I should go in bathing and die from the action of the water causing asphyxia, that, too, would be a death by external violence within the meaning of the policy, whether I swam out too far, struck my head against a rock in diving, or—unskilled in the natatorial art—got out of my depth; but if I succumbed to an attack of apoplexy while taking the bath, that would not be a death from accident.[127] A provision that no claim is to be made under a policy, except in respect of an injury caused by some “outward and visible means,” applies only to non-fatal injuries.[128]

I found also, that it was legally correct—however paradoxical it may appear—to say that I was travelling in a carriage, when in fact I was actually alighting therefrom;[129] and that I would be “travelling 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,[130] will not allow “travelling in a public conveyance” to be construed literally, and if an accident happens while one is getting off or on a train, or attempting to do so for any reasonable purpose, it comes within the terms of a policy insuring against accidents while travelling by public conveyance.[131] 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;[132] 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.[133] An elephant may be a traveller.[134]

A poor fellow away down in Kentucky inadvertently 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.[135] But as this case stands alone, it will scarcely answer to point a moral or adorn a tale, and the better opinion seems to be that contributory negligence is no defence, as the liability rests upon contract, one of the chief objects of which is to protect a man against his own carelessness or negligence.[136] But one must not be guilty of willful and wanton exposure of himself to unnecessary danger; for instance he must not ride on the engine,[137] or attempt to cross the track when an approaching train is within fifty feet.[138]

I was now assured that to be insured was sure to bring contentment, if not riches.

FOOTNOTES:

[110] Sinclair v. Maritime Pass. Ass. Co., 3 El. & E. 478.

[111] Ripley v. Rw. Pass. Ass. Co., 2 Bigelow, Ins. Cases, 738.

[112] Prov. Life Ins. & Inv. Co. v. Martin, 32 Maryland, 310.

[113] Mallory v. Travellers Ins. Co., 47 N. Y. 52.

[114] Theobald v. Rw. Pass. Ass. Co., 10 Ex. 45.

[115] Bradburn v. Gt. W. R., L. R., 10 Ex. 3, 11 Eng. Rep. 330.

[116] Dalby v. Indian & L. Life Ass. Co., 15 C. B. 365.

[117] Hooper v. Accidental Death Ass. Co., 5 H. & N. 546; affirmed on appeal, 5 H. & N. 557.

[118] May on Insurance, p. 644.

[119] Sawyer v. United States Casualty Co., 8 Law Reg. (N. S.), 233.

[120] Per Wilde, B., Hooper v. Accidental Death Ins. Co., 5 H. & N. 546.

[121] Theobald v. Rw. Travellers Ins. Co., 10 Ex. 45.

[122] Martin v. Travellers Ins. Co., 1 F. & F. 505.

[123] Southard v. Rw. Pass. Ass. Co., 34 Conn. 574.