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the driver places the passenger in a state of peril, and they have at that time reasonable ground for supposing the stage will upset or that the driver is incapable of managing his horses, the plaintiff is entitled to recover, although the jury may believe from the position in which the coach was placed by the negligence of the driver, that the attempt of the plaintiff on his wife to escape may have increased the peril or even caused the stage to upset, and although they may also find that the plaintiff and his wife would have sustained little or no injury, if they had remained in the stage.' Jones v. Boyce, 1 Stark. 493, was followed in Ingalls v. Bills, 9 Met. 1, 43 Am. Dec. 346, and the point ruled the same way. There the words “reasonable precaution” and “prudent precaution” were applied to the act of leaping from a stage coach, where an axle-tree had broken and the hind wheel came off, causing the coach to settle down on one side, as if about to be overset.

These early cases in England and this country are generally followed, and the substance of the rulings in them is given in the formula above stated. Occasionally, perhaps, there may be found departures from that formula; but the great current of authority flows in the direction heretofore indicated. Thus, in Coulter v. American M. U. Exp. Co. 56 N. Y. 585, the plaintiff was walking upon the sidewalk when an express wagon of the defendant company, driven rapidly upon the sidewalk, came so quickly up behind her that she had no time to look around, but instinctively sprang aside to escape the impending danger, and in so doing struck her head against a wall, receiving injuries; and it was ruled in affirmance of the judgment that if she had time to look around before jumping in order to discover the cause of her sudden alarm it was her duty to do so; otherwise her instinctive effort to avoid the danger would not defeat her right to a recovery, nor diminish the defendant's previously incurred responsibility arising from his negligent act. The plaintiff in another case was a passenger on a street car,

the route of which crossed a railroad track. Just as the street car approached that track, upon which an express train was approaching with the speed customary to such trains, the driver stopped to allow a passenger to alight. Had he remained stationary, the

Stokes v. Saltonstall, 38 U. S. 13 Pet, 181, 10 L. ed. 115.

train could have passed; but he recklessly whipped up his horses, and drove on the railroad track in front of a fast moving train. All of the passengers in the car, with one exception, perceiving the danger, rushed out, and jumped from the car. The plaintiff, in doing so, fell, and was injured, and the car passed over the track just in time to escape the engine, the engineer, by promptly reversing and by putting on brakes, l:aving barely succeeded in preventing a collision with the car; and the plaintiff was held entitled to recover,—the propriety of which decision cannot be doubted, since all the elements of a great and impending peril were present; a peril produced by the recklessly negligent act of the street car driver; a peril, too, well calculated to disconcert the highest self-possession, and appall the stoutest heart,"

In a New York case a passenger on a train, which was proceeding west, saw another train coming on the same track towards the one on which he was, at an unusual rate of speed,-i.e., about 25 miles an hour. Strenuous efforts were made, by reversing the engine attached to the plaintiff's train, to avert a collision, but without avail, for the collision occurred, driving the cars of one of the trains from 40 to 60 rods over the ties, killing one man on the eastward bound train, jamming up the westward bound train, and breaking off some of the platforms of the cars. Upon seeing the approaching train, the men jumping from other cars to avoid the impending danger, the plaintiff left his seat, rushed to the forward door of the car, and stepped one foot upon the platform at the same instant of the collision and of his injury. And it was held that the railway company was guilty of the grossest negligence in allowing the collision to occur in the circumstances there stated, and of the plaintiff it was aptly said: “His act was not the result of a rash apprehension of danger that did not exist." * The inquiry in such a case is, Did the negligence of the carrier put the injured party to the choice of adopting the alternative of an attempt to escape, or to remain under the apparently well grounded apprehension of serious personal injury ? :

Troomley v. Central Park N. & E. R. Co. 69 N. Y. 158, 25 Am. Rep. 162. Buel v. New York Cent. R. Co. 31 N. Y. 314, 87 Am. Dec. 271. 3 Woolery v. Louisville, N. A. & C. R. Co. 5 West. Rep. 667, 107 Ind. 381;

Jeffersonviile R. Co. v. Swift, 26 Ind. 459; Pennsylvania R. Co. v. Aspell, 23 Pa. 147; Jones v. Boyce, 1 Stark. 492; Stokes v. Saltonstall, 38 U. S. 13

One who acts unreasonably, rashly, or becomes frightened at a trivial occurrence not calculated to alarm a reasonably prudent man, and thereby brings injury upon himself, cannot recover damages therefor.

Pet. 181, 10 L. ed. 115; Card v. Elsworth, 65 Me. 547; Sears v. Dennis, 105 Mass. 310; Wilson v. Northern Pac. R. Co. 26 Minn. 278; Buel v. New York Cent. R. Co. 31 N. Y. 314; Pittsburgh v. Grier, 22 Pa. 54;

Indianapolis & St. L. R. Co. v. Stout, 53 Ind. 143. South Covington & C. St. R. Co. v. Ware, 84 Ky. 267.

CHAPTER XXII.

STATE CONTROL OVER CARRIERS.

$ 130. Not Entirely Surrendered by Grant of Charter. $ 131. How far the State may Regulate Subjects of Commerce. 8 132. National Control over Charges by Carrier. $ 133. State and National Control over Agencies of Commerce. $ 134. Common Carriers and Persons Controlling Grain Elevators

Occupy Analogous Positions.

$ 130. Not Entirely Surrendered by Grant of

Charter.

The grant of power by a charter, to the directors of a railroad company, to make needful rules and regulations touching the rates of toll and the manner of collecting the same, does not deprive the state of its general authority itself to regulate the rates of toll to be collected by the company.

A charter of a railroad company giving power to the directors of that company to make rules as to rates of toll does not constitute an irrepealable contract with that company that it shall have the right for all future time to prescribe its rates of toll, free from control by the legislature of the state. A railroad corporation takes its charter, containing such a provision, subject to the general law of the state, and to such changes as may be made in such general law, and subject to future constitutional provisions and future general legislation, in the absence of any prior contract with it exempting it from liability to such future general legislation. Exemption from future general legislation, either by a constitutional provision or by an act of the legislature, does not exist unless it is given expressly or unless it follows by an implication equally clear with express words.'

A railroad company is chartered solely for the purpose of performing the duties of a common carrier. The grant in its charter is nothing more than a right to be exercised within the same Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970.

limitations that the common law, in behalf of justice and public policy, imposes upon the natural man;' and in the exercise of its authority the legislature may require railroad corporations and persons operating railroads in the state to observe precautionary measures against accident, forbid unjust discrimination and extortionate charges; and, where there is no valid contract to the contrary, prescribe a reasonable maximum of charges for the service to be performed by them, and enforce the same by appropriate pains and penalties. But the legislature cannot, under the pretense of regulation, deprive a corporation of any of its essential rights and privileges. In other words, the rules prescribed and the power exercised, must be within the police power in effect, and not covert amendments to their charters nor a curtailment of their corporate franchises. Nor can the legislature in the exercise of this power, make any regulation in contravention of the state or national constitution." But it does not appear that there has been any such confiscation as amounts to a taking of property without due process of law, because the income of a railroad at the rate of fare fixed by the statute will pay only 14 per cent on the original cost of the road.

In the absence of any legislative regulation upon the subject, the courts must decide for the company, as they do for private persons, when controversies arise, what rates are reasonable.' Yet state legislation which deprives owners of a railroad line within the state of all compensation from their business, cannot be upheld on the ground that the company is a foreign corporation. Nor can it be upheld on the ground that the railroad affected thereby is an interstate road, and its deficiency of revenue may be made up by receipts from interstate commerce or by traffic in other states; or on the ground that a future increase of business may render the prescribed rates remunerative."

The legislature of a state has the power to prescribe the charges of a railroad company for the carriage of persons and merchandise within its limits, in the absence of any provision in the charter of

*Chicago & A. R. Co. v. People, 67 Ill. 11. Sharp v. Whiteside, 19 Fed. Rep. 156. Dono v. Beidelman, 2 Inters. Com. Rep. 56, 125 U. S. 680, 31 L. ed. 840. *Chicago & N.W. R. Co. v. Dey, 1 L. R. A. 744, 2 Inters. Com. Rep. 325, 35 Fed. Rep. 866.

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