Chapter XVI: Don't

In school, church, and society many things are taught by the prohibitory don't; and thus many rules of law relating to public and private ways may be taught and illustrated in the same way. For instance:--

Don't ever drink intoxicating liquor as a beverage, at least in large quantities. If you ever have occasion to use it at all, use it very sparingly, especially if you are travelling or are about to travel with a team; for if you should collide with another team, or meet with an accident on account of a defect in the way, in a state of intoxication, your boozy condition would be some evidence that you were negligent. The law, however, is merciful and just, and if you could satisfy the court or jury that notwithstanding your unmanly condition you were using due care, and that the calamity happened through no fault of yours, you would still be entitled to a decision in your favor; but when you consider how apt a sober human mind is to think that an intoxicated mind is incapable of clear thought and intelligent action, I think you will agree with the decisions of the courts, which mean, when expressed in plain language, "You had better not be drunk when you get into trouble on the highway."[97]

[97] 3 Allen, 402; 115 Mass. 239.

Don't ever approach a railway crossing without looking out for the engine while the bell rings, and listening to see if the train is coming; for there is good sense as well as good law in the suggestion of Chief Baron Pollock, that a railway track _per se_ is a warning of danger to those about to go upon it, and cautions them to see if a train is coming. And our court has decided that when one approaches a railway crossing he is bound to keep his eyes open, and to look up and down the rails before going upon them, without waiting for the engineer to ring the bell or to blow the whistle.[98] It is a duty dictated by common sense and prudence, for one approaching a railway crossing to do so carefully and cautiously both for his own sake and the sake of those travelling by rail. If one blindly and wilfully goes upon a railway track when danger is imminent and obvious, and sustains damage, he must bear the consequences of his own rashness and folly.

[98] 12 Met. 415.

Don't drive horses or other animals affected by contagious diseases on the public way, or allow them to drink at public watering-places, or keep them at home, for that matter. The common law allows a man to keep on his own premises horses afflicted with glanders, or sheep afflicted with foot-rot, or other domestic animals afflicted with any kind of diseases, provided he guards them with diligence and does not permit them to escape on to his neighbor's land or the public way. But under the statute law of this State, a man having knowledge of the existence of a contagious disease among any species of domestic animals is liable to a fine of five hundred dollars, or imprisonment for one year, if he does not forthwith inform the public authorities of such disease.[99] Aside from the penalty of the statute law, it is clearly an indictable offence for any one to take domestic animals affected with contagious diseases, knowing or having reason to know them to be so affected, upon the public ways, where they are likely to give such diseases to sound animals; and he would be answerable in damages, besides.[100]

[99] St. 1885, c. 148.

[100] 2 Rob. N.Y. 326; 16 Conn. 200.

If you are afflicted with a contagious or infectious disease, don't expose yourself on a highway or in a public place; and don't expose another person afflicted with such disease, as thereby you may jeopardize the health of other people, and your property also, in case you should be sued by some one suffering on account of your negligence.[101]

[101] 4 M. & S. 73; Wood on Nuisances, 70.

When there is snow on the ground, and the movement of your sleigh is comparatively noiseless, don't drive on a public way without having at least three bells attached to some part of your harness, as that is the statute as well as the common law. By the statute law you would be liable to pay a fine of fifty dollars for each offence. And by the statute and common law, in case of a collision with another team, you would probably be held guilty of culpable negligence and made to pay heavy damages. Of course you would be allowed to show that the absence of bells on your team did not cause the accident or justify the negligence of the driver of the other team, but it would be a circumstance which would tell against you at every stage of the case.[102]

[102] 12 Met. 415; 11 Gray, 392; 8 Allen, 436.

If you have no acquaintance with the nature and habits of horses, and no experience in driving or riding them, don't try to ride or drive any of them on a public way at first, but confine your exercise in horsemanship to your own land until you have acquired ordinary skill in their management; for the law requires every driver or rider on a highway to be reasonably proficient in the care and management of any animal he assumes to conduct through a public thoroughfare.[103]

[103] 2 Lev. 173.

Don't ride with a careless driver, if you can help it, because every traveller in a conveyance is so far identified with the one who drives or directs it, that if any injury is sustained by him by collision with another vehicle or railway train through the negligence or contributory negligence of the driver, he cannot recover damages for his injuries. The passenger, in law, is considered as being in the same position as the driver of the conveyance, and is a partaker with him in his negligence, if not in his sins.[104]

[104] Addison on Torts, § 479.

If you have a vicious and runaway horse, and you know it, you had better sell him, or keep him at work on the farm. Don't, at any rate, use him on the road yourself, or let him to other people to use thereon; for if in your hands he should commit injuries to person or property, you would have to foot the bills; and if he should injure the person to whom you had let him, unless you had previously informed him of the character and habits of the horse, you would be liable to pay all the damages caused by the viciousness of the horse. If you should meet with an accident by reason of a defect in the highway, you could not recover anything, however severely you might be injured or damaged, provided the vicious habits of the horse contributed to the accident.[105]

[105] 4 Gray, 478; 117 Mass. 204.

In riding or driving keep hold of the reins, and don't let your horses get beyond your control; for if you do your chances of victory in a lawsuit will be pretty slim. If you tie up your reins for the purpose of walking in order to get warm or to lighten the load, and let your horses go uncontrolled, and they run over a child in the road and kill it or seriously injure it, you will probably have to pay more than the value of the horses, unless they are very good ones. Or if, going thus uncontrolled, they fail to use due care and good judgment in meeting other teams, and in consequence thereof damages occur, you would be expected to make everything satisfactory, because your team is required to observe "the law of the road" whether you are with it or not, especially if you turn it loose in the highway. Even if you have hold of the reins, and your horses get beyond your control by reason of fright or other cause, and afterwards you meet with an accident by reason of a defect in the highway, you cannot recover anything.[106]

[106] 101 Mass. 93; 106 Mass. 278; 40 Barb. 193.

Don't encroach upon or abuse the highway, either by crowding fences or buildings upon its limits or by using it as a storage yard. If you set a building on the line of the road, and then put the doorsteps, the eaves, and the bow-windows of the building over the line, you are liable to an indictment for maintaining a public nuisance; and possibly you may be ordered by the court to remove them forthwith at your own expense.[107] If you build an expensive bank-wall for a road fence, and place any part of it over the line, you must remove it upon the request of the public authorities, or else take your chances on an indictment for maintaining an illegal obstruction in the highway. If you deposit on the roadside logs, lumber, shingles, stones, or anything else which constitutes an obstruction to travel or a defect in the way, or which is calculated to frighten horses of ordinary gentleness, and allow the same to remain for an unreasonable length of time, you are liable to respond in damages for all injuries resulting therefrom. Even if the town should have to settle for the damages in the first instance, you might still be called upon to reimburse the town.[108]

[107] 107 Mass. 234.

[108] Wood on Nuisances, §§ 326, 327; 102 Mass. 341; 18 Me.
286; 41 Vt. 435.

Don't ride on the outside platform of a passenger coach; for if you cling upon a crowded stage-coach or street car, and voluntarily take a position in which your hold is necessarily precarious and uncertain, you have no right to complain of any accident that is the direct result of the danger to which you have seen fit to expose yourself. However, if the coach is stopped for you to get on and fare is taken for your ride, the fact that you are on the platform is not conclusive evidence against you; but the court will allow the jury to determine, upon all the evidence and under all the circumstances, whether you were in the exercise of due care, instructing them that the burden of proof is upon you to show that the injury resulted solely by the negligence of the proprietors of the coach.[109]

[109] 103 Mass. 391; 8 Allen, 234; 115 Mass. 239.

Don't jump off a passenger coach when it is in motion; for if you get off without doing or saying anything, or if you ring the bell and then get off before the coach is stopped, without any notice to those in charge of it, and without their knowing, or being negligent in not knowing, what you are doing, the coach proprietors are not liable for any injury you may receive through a fall occasioned by the sudden starting of the coach during your attempt to get off.[110]

[110] 106 Mass. 463.

Don't wilfully break down, injure, remove, or destroy a milestone, mile-board, or guide-post erected upon a public way, or wilfully deface or alter the inscription on any such stone or board, or extinguish a lamp, or break, destroy, or remove a lamp, lamp-post, railing, or posts erected on a street or other public place; for if you do you are liable to six months' imprisonment or a fine of fifty dollars.[111]

[111] Pub. St. c. 203, § 76.

If in travelling you find the road impassable, or closed for repairs, and you find it convenient to turn aside and enter upon adjoining land in order to go on your way, don't be careless or imprudent; for if you take down more fences and do more damage than necessary, you may have to answer in damages to the owner of the land; and if you meet with an accident while thus out of the road, you cannot look to the town for any remuneration therefor, because when you go out of the limits of the way voluntarily, you go at your peril and on your own responsibility.[112]

[112] 8 Met. 391; 7 Cush. 408; 7 Barb. 309.

Don't make the mistake of supposing that everything that frightens your horse or causes an accident in the highway is a defect for which the town is liable. If a town negligently suffers snowdrifts to remain in the road for a long time, and thereby you are prevented from passing over the road to attend to your business, or, in making an attempt to pass, your horses get into the snow and you are put to great trouble, expense, and loss of time in extricating them, you are remediless unless you receive some physical injury in your person or property; as the remedy provided by the statutes, in case of defects in the highway, does not extend to expenses or loss of time unless they are incident to such physical injury. In other words, the statute gives no one a claim for damages sustained in consequence of inability to use a road.[113] And so a town or city is not obliged to light the highways, and an omission to do so is not a defect in the way for which it is liable.[114]

[113] 13 Met. 297; 6 Cush. 141.

[114] 136 Mass. 419.

Nor is the mere narrowness and crookedness of a road a defect within the meaning of the statutes. Towns and cities are only required to keep highways in suitable repair as they are located by the public authorities, and they have no right to go outside the limits defined by the location in order to make the road more safe and convenient for travel. If a highway is so narrow or crooked as to be unsafe, the proper remedy is by an application to the county commissioners to widen or straighten it.[115] Nor is smooth and slippery ice, in country road or city street, a defect for which a town or city is liable, if the road whereon the ice accumulates is reasonably level and well constructed. In our climate the formation of thin but slippery ice over the whole surface of the ground is frequently only the work of a few hours; and to require towns and cities to remove this immediately or at all is supposing that the legislature intended to cast upon them a duty impossible to perform, and a burden beyond their ability to carry.[116]

[115] 105 Mass. 473.

[116] 12 Allen, 566; 102 Mass. 329; 104 Mass. 78.

If you meet with an accident on the highway by reason of a defect therein, don't fail to give notice in writing within thirty days, to the county, town, place, or persons by law obliged to keep said highway in repair, stating the time, place, and cause of the injury or damage.[117] This notice is a condition precedent to the right to maintain an action for such injury or damage, and cannot be waived by the city or town.[118] Nothing will excuse such notice except the physical or mental incapacity of the person injured, in which case he may give the notice within ten days after such incapacity is removed, and in case of his death it may be given by his executors or administrators.[119] Formerly it was essential that the time, place, and cause of the injury should be set forth in the notice with considerable particularity, but now the notice is not invalid by reason of any inaccuracy in stating the time, place, and cause, if the error is not intentional and the party entitled to notice is not misled.[120]

[117] Pub. St. c. 52, §§ 19-21.

[118] 128 Mass. 387.

[119] Pub. St. c. 52, § 21.

[120] St. 1882, c. 36.

Don't convey by warranty deed a piece of land over which there is a public or a private way, without conveying subject to such way; for if you do you may be called upon to make up the difference in value in the land with the incumbrance upon it and with it off, which is regarded as a just compensation for the injury resulting from such an incumbrance.[121]

[121] 2 Mass. 97; 15 Pick. 66; 2 Allen, 428.

Finally, don't keep a dog that is in the habit of running into the road and barking at passing teams. You had better get rid of him or break him of the habit. Under our statutes the owner or keeper of a dog is responsible to any person injured by him, either in person or property, double the amount of damage sustained; and after he has received notice of the bad disposition of his dog, he is liable to have the damage increased threefold.

Every dog that has the habit of barking at people on the highway is liable any day to subject his owner or keeper to large liabilities; for if he frightens a horse by leaping or barking at him in mere play, and the horse runs away, or tips over the vehicle to which he is hitched, his owner or keeper is responsible for double the damages thus caused by his dog. Hence I repeat the injunction, Get rid of such a dog or break him of the habit; and if this cannot be done, then break his neck.

Perhaps it might be well to say, in this connection, that any traveller on the road, either riding or walking peaceably, who is suddenly assaulted by a dog, whether licensed or not, may legally kill him, and thus relieve his owner or keeper of a disagreeable duty.[122]

[122] 11 Gray, 29; 1 Allen, 191; 3 Allen, 191.