Historically, the clear recognition by the courts that all adults in public intercourse owe a duty of reasonable care to avoid injuring others has been seen as an early nineteenth century development.Footnote 1 Occasionally it is recognized that what is known about the emergence of the tort of negligence in English law comes almost entirely from the printed reports of civil (plea side) cases tried in the three common law courts (King's Bench, Common Pleas, and Exchequer). It was not until the 1790s that regular printed reports of jury trials (or nisi prius cases, as they were called) began,Footnote 2 and even then, enlightenment from the nisi prius reports was limited. Most of those reports were sketchy, and very few included instructions given to the jury by the trial judge.Footnote 3 More importantly, the reports covered only a small fraction of the jury trials that were conducted by the common law courts. The overwhelming majority of civil jury trials ended with the jury verdict (or an occasional nonsuit), with no post-trial proceedings, and what happened in many thousands of these plea-side jury trials in the late eighteenth and early nineteenth centuries has been something of a black hole in the historical record.
Manuscript sources can provide some illumination. In my prior work with the surviving jury trial notes kept by Lord Mansfield, Chief Justice of the Court of Kings Bench from 1756 to 1788, I found numerous unreported negligence cases, demonstrating that the common law governing negligence between strangers was much more active than had been suggested by the scarcity of such cases in the standard law reports.Footnote 4 This is corroborated by trial notes kept by Lord Ellenborough, Chief Justice of King's Bench from 1802 until 1818.Footnote 5 These notes, stretching across 16 ½ years, cover an astonishing number of jury trials (totaling well over 13,000), averaging approximately 800 per year.Footnote 6 Of these trials, on average, only 9% per year appear in the nisi prius reports.Footnote 7
Yet there is another largely untapped printed source: the London newspapers. As is later discussed,Footnote 8 by the second half of the eighteenth century, newspapers in London held an active and rapidly expanding readership, and what was happening in the law courts was clearly of interest, especially in the Court of King's Bench under the commanding presence of Lord Mansfield.Footnote 9 In 1785, near the end of Mansfield's 32 years as chief justice, a new daily newspaper was started: The Daily Universal Register, subsequently becoming The Times or Daily Universal Register, and then simply The Times.Footnote 10
My principal goal in this article is to reveal and describe the prevalence and value of case reports on the law of negligence published in The Times. Most of these reports appear nowhere else in print, yet they show the law of negligence taking shape much earlier than has been commonly understood. The reports in The Times also reveal the congenial informality of the nisi prius courtrooms during the years covered. This atmosphere of respectful, almost friendly, interactions among the judges, barristers, jurors, and witnesses is often underappreciated by legal historians. This is especially so given the rigid class stratification in English society of the time.
Before turning to the newspaper reports, some attention should be given to the newspaper culture of the time, and to the proliferating occasions for negligently inflicted harm in the transport of people and goods on land and water. Writing in 1910, William Smart opened the first volume of his Economic Annals of the Nineteenth Century, 1801–1820, with a description of the social and economic landscape of Britain at the close of the eighteenth century. Near the end of the chapter, Smart gave only a single paragraph to the leading newspapers published in London in 1800. After naming a half dozen, he declared: “These newspapers, however, were of a very different character from those with which we are familiar; they had nothing in the shape of general intelligence—law and police news, and public proceedings of all kinds were entirely ignored.”Footnote 11 Perhaps Smart had seen only scattered samples of these newspapers at the time he wrote, but as to law and public proceedings, he was categorically wrong.
Rosamond Bayne-Powell, in her 1937 study of eighteenth century London life, devotes a chapter to newspapers and magazines in which she cites a Treasury Department statistic that as of 1711, “there are published weekly about 44,000 newspapers.”Footnote 12 She observes that the more reputable newspapers were costly; The Times cost as much as 4 ½d or 6d, and there were few who could afford it.Footnote 13 But this was ameliorated by communal practices, for example, “[s]ome of the inns took it [The Times] in together with other papers, and charged a penny or two for their perusal.” Moreover, “[t]here was a system which lasted for many years whereby a paper could be hired for an hour or two for a very small sum.”Footnote 14 Bayne-Powell's conclusion was that, “[t]he printed word among semi-literate people was looked upon with the greatest possible awe and respect.”Footnote 15
The London newspapers also travelled to the provinces. According to Douglas Hay and Nicholas Rogers in their 1997 book, Eighteenth-Century English Society, “by the 1750s there were four dailies and five tri-weekly newspapers, some of which had quite wide provincial circulation.”Footnote 16 Hay and Rogers acknowledged that it was difficult to know how many people read these papers, but “we know they were passed around and readily available in inns, public houses, assembly rooms, and coffee-houses.” They added that in London, “foreign observers were astounded to find labourers perusing newspapers” and this suggested a wide, sophisticated political readership.Footnote 17
Historian Jeremy Black gives additional details, summarizing the newspaper world in England in the second half of the eighteenth century. By his count, “[i]n 1760 London had four dailies and five or six tri-weekly's, and by 1790 there were “thirteen morning, one evening, seven tri-weekly and two bi-weekly papers; by early 1792 the number of dailies had risen to 14 and by the end of the year 16.” These numbers continued to increase, and by 1811, “the total of papers in all categories published in London was 52.”Footnote 18
In the early years of The Times, 1786–90, several standard legal columns were fashioned: “Law Report,” “Assize News,” “Law Intelligence,” and “Old Bailey Reports.” In addition, freestanding reports of cases were published, sometimes in large numbers, plus occasional reports of Chancery, Admiralty, and Ecclesiastical cases. Many of the case reports can be cross-checked against printed reports of the same cases by Durnford and East, and also against surviving manuscript notes kept by judges, barristers, and court officers. Moreover, the Old Bailey cases can be compared with the reports in the Old Bailey Sessions Papers, as John Langbein did for the years 1754–56 by comparing the Sessions Papers reports with the detailed shorthand case notes kept by King's Bench Chief Justice Dudley Ryder.Footnote 19 I have made many such comparisons for cases appearing in The Times in the late eighteenth and early nineteenth centuries, and it is my strong conclusion that the reports in The Times are generally trustworthy.
A further word should be added about access to the courts. Hay and Rogers observe that London was one place where “poor men and women were able to invoke the law,” explaining that because of “tribes of ‘low attorneys’, with or without formal qualifications, and the prevalence of fees contingent on success,” even the Court of King's Bench where Lord Mansfield presided “was open to some people of very limited means.” Further, the many varieties of courts in LondonFootnote 20 and the scores of justices of the peace made the law “available to a wider sector of the population than anywhere else in England.”Footnote 21
In a recent study of London's social history, Roy Porter observed that on the Thames, “London's imperial position and the tripling of trade between 1720 and 1800 resulted in dire congestion, especially in the Upper Pool, where up to 1,800 vessels packed into mooring space for 500.”Footnote 22 And on land, especially in metropolitan London, transport of people and merchandise became increasingly complex. Lighter goods would be delivered by stagecoach; heavier items customarily traveled by wagon.Footnote 23 Coaching “became big business,” and coaching firms flourished, supported by numerous coaching inns.Footnote 24 Over time, road conditions improved, so that, according to Porter, “Travel between the major towns was four or five times faster in 1830 than in 1750.”Footnote 25
Anthony Burgess in his “Historical Commentary” in the extravagantly illustrated elephantine volume, Coaching Days of England, discusses the need in the Age of Enlightenment for efficient land travel.Footnote 26 The number of stagecoaches multiplied, and by 1750, “Every coach…provided, in addition to the malodorous closed compartment for six, space on the roof for eight or nine.”Footnote 27 In 1784, at the instigation of John Palmer, M.P., smaller and lighter mail coaches were introduced, and soon, “a Palmer coach was delivering mail from London to every major city in the Kingdom.”Footnote 28 Speed was improved, so that the flying mail coaches reduced by half the 5 days required by stagecoaches to cover the 400 miles from London to Edinborough.Footnote 29 Naturally, the escalating number of mail coaches and stagecoaches created traffic problems and generated rules of the road. Burgess's summary description of the realities is a useful transition to the case reports in The Times:
When accidents did occur, they were usually due to over-confidence. The coachman of the Liverpool Umpire thought he could drive better drunk, and he crashed on Finchley Common. It was thought that the Hertford coach could easily bear thirty-four passengers; it could not, and one of the braces gave way. Passengers, especially aristocratic ones, persuaded the drivers to hand over the reins and then sometimes galloped to disaster. Sir St Vincent Cotton overturned the Cambridge Star and broke the leg of Calloway, England's premier jockey, on his way to Newmarket. This cost £2,000 in compensation. Sometimes the great professionals had snarling unofficial races, and the practice of ‘crossing’ could make the rear coach crash into the leading one.Footnote 30
The overwhelming majority of the negligence lawsuits reported in The Times were filed in the expanding catch-all category called “Trespass on the Case,” or simply “Case.”Footnote 31 That cause of action flourished after breaking away from the formal writ of Trespass vi et armis.Footnote 32 Early in the eighteenth century, the differentiating metric became the “direct–indirect” test: Trespass was proper to redress harm caused directly by the defendant, whereas Case was to be used for indirect (“consequential”) harm. The test was not easy to administer,Footnote 33 but it persisted into the nineteenth century.Footnote 34 As both Baker and Ibbetson state, the direct–indirect issue was not finally put to rest until 1833 in the case of Williams v. Holland.Footnote 35 Nevertheless, almost all of the collision cases reported in The Times from 1785 to 1820 were actions of Trespass on the Case, and most of them involved crashes that (by the common sense of the lay jurors, at least) caused direct harm to the plaintiffs (or to their wives or children).
The negligence cases reported in The Times were predominantly of two types: those involving the liability of common carriers for lost or damaged goods, and those involving a wide variety of collisions involving boats, ships, equestrians, pedestrians, horses, stagecoaches, and other horse-drawn vehicles.Footnote 36 In the discussion to follow, I first address the collision cases, and for analytical clarity I separate crashes on land from those on water because virtually all of the water cases involved sailing vessels, and this necessarily posed distinct questions about the “rules of the road” that shaped the applicable standard of care. As will be seen, some of the common law judges were evidently landlubbers who were thoroughly bewildered by seagoing terminology and conventions. I have grouped the land-based collision cases in two categories, private vehicles (chaises, gigs, carts) and public stagecoaches.
Collision Cases
Collisions on Land: Chaises, Gigs, Wagons, Carts, Horses
Collisions and accidents in the clogged streets of London in the late eighteenth and early nineteenth centuries were common, and when these occurred, there would be no insurance coverage. Claims against allegedly careless or reckless drivers and riders were often taken to court, and the defendants would automatically “put themselves upon the country”; that is, they would demand a jury trial, usually in the Court of King's Bench.
The centrality of the Court of King's Bench is sharply confirmed by the case reports in The Times. Even though the same common law was administered by the courts of Common Pleas, Exchequer, and King's Bench,Footnote 37 the predominance of King's Bench in the law reports in The Times is not surprising. When The Times was founded in 1785, the influential chief justiceship of Lord Mansfield was nearing its end, but both of Mansfield's successors, Lord Kenyon followed by Lord Ellenborough, were able and opinionated, ready to speak their minds in colloquies with counsel and in instructions to juries. These traits were positive attractions to the news media. Even more so was the predictable presence in King's Bench of the “rock stars” among the leading barristers of the day, barristers (notably Thomas Erskine) who were famous for spontaneous, mesmerizing speeches on behalf of their clients, or who were equally famous (notably William Garrow) for shrewd and effective cross-examination of witnesses.
Lord Mansfield's successor as chief justice of the Court of King's Bench, Sir Lloyd Kenyon, served from June 5, 1788 until April 2, 1802. In his instructions to juries in negligence cases reported in The Times, Lord Kenyon customarily gave the jurors the straightforward task of deciding who was at fault. In the 1789 case of Ammon v. Payne,Footnote 38 the plaintiff claimed that the defendant's coachman negligently ran his carriage against the plaintiff's cart, causing damage of £1,000. Lord Kenyon said to the jury, “if there was no fault in the coachman, if it was the effect of pure accident, then no man was to blame, and, of course no man was liable,” but the defendant clearly would be liable if the accident “might have been prevented by his prudent conduct.”Footnote 39
Many of the collision cases had similar features. One or both parties (usually the defendant or his servant) would be claimed to be “in liquor,”Footnote 40 and the witnesses for the two parties would give testimony that was flatly contradictory. Also, competitive driving was common: it was almost the eighteenth century equivalent of “drag racing.” In Lewsiner v. Smith,Footnote 41 a case tried before Lord Eldon in the Court of Common Pleas, the plaintiff was returning from Romford to London in a gig with his wife and daughter, and he tried to pass a post chaise, “but the post-boy not wishing to be beat, had run his carriage so near the bank on the right-hand side of the road as to leave no room for the gig to pass,” thus “his gig was dashed to pieces.” Lord Eldon said “that the evidence was completely contradictory; and that the witnesses on the one side or the other had grossly perjured themselves.”Footnote 42
Lord Kenyon's successor as chief justice of King's Bench, Lord Ellenborough, served from April 12, 1802 until October 29, 1818. During that time, he presided over many negligence cases.Footnote 43 Less than 2 months after he took office, he heard the case of Orde v. Beaufoy,Footnote 44 in which the plaintiff sued for damages for the death of his pony, which had been run into by the defendant's servant while driving his master's wagon. Ellenborough told the jury that the defendant should be held liable if “the accident arose from any negligence in the manner of the Defendant's Servant driving his Master's wagon,” but “if he had conducted himself with all due care, it was what the law called damnum absque injuria.”Footnote 45
In later years, Lord Ellenborough's descriptions of the appropriate standard of care took into account the urban context of accidents occurring within metropolitan London. In Williams v. Webb,Footnote 46 the defendant's cart struck and injured the plaintiff's 2-year-old child, and Lord Ellenborough commented “at some length on the culpable inattention of persons driving carts and coaches through the crowded streets of this metropolis.”Footnote 47 Similarly in Wilson v. Meux,Footnote 48 Lord Ellenborough told the jury,Footnote 49 “that such actions as this was [sic] the only means of preventing the furious and dangerous rate at which drays generally drove through the streets of London.”Footnote 50 A year later in the case of Mannington v. Nicholls,Footnote 51 the plaintiff sued for the serious harm to his 2 ½- year-old son who was run over by the defendant's hackney coach, and Lord Ellenborough imposed a high standard of care, admonishing the jury “that in this crowded and populous city, persons of that profession [coachmen] must exercise the greatest circumspection; and, therefore, if the coachman was not using all possible caution, he was not free from blame.”Footnote 52
Collisions on Land: Stagecoaches
As the principal means of urban, town-to-town, and country travel in the late eighteenth and early nineteenth centuries, stagecoaches were plentiful, and accidents happened. Many of the common features mentioned earlier for inner city driving of chaises, gigs, and similar vehicles were writ large with stagecoaches. Coachmen were continually accused of driving at excessive speed, overindulging in beer and spirits at coaching inns, pumping up revenue by taking too many passengers on board, and even occasionally competing for speed with other coaches on the roads. In Perry v. Hunswick, a case that came before Lord Kenyon on June 23, 1792,Footnote 53 witnesses for the plaintiff (who had been passengers in the coach at the time of the accident) testified that “the coach drove at a terrible rate, at least at the rate of 12 miles an hour,” and “the coachman drank Hollands or ale almost at every place where he stopped.” A further aggravation was that the coachman was one of the stagecoach proprietors. The plaintiff's wife, when the coach overturned, suffered grievous injuries, of which she subsequently died.Footnote 54
The fundamentals governing stagecoaches, nevertheless, were essentially the same as those governing private transport. In Lucas v. Willan,Footnote 55 a case that came before the Court of Common Pleas in July 1810, the Chief Justice, Sir James Mansfield,Footnote 56 delivered a primer on basic principles to the jury. Regarding a common carrier, he said that “the law exempted him in no case, except where the visitation of Providence or the unavoidable violence of an enemy interfered.” The liability of a coach proprietor, however, was different: “he was not responsible, unless he was negligent.”Footnote 57 Sir James said that if the jury “thought the accident might have been prevented by the driver's going more slowly, or putting a drag on his wheel, they would find for the Plaintiff: they would give him whatever damages they might consider due to him, both for his surgical expenses and personal injury.”
The most serious and recurring stagecoach problem, apart from inebriated coachmen, was that of overloaded coaches. In 1789, Parliament attempted a regulation, enacting a statute that specified a maximum of six passengers on the roof, with no more than two persons plus the driver on the box, and any driver who permitted these limits to be exceeded was to be fined 40s unless the driver was also the owner of the coach, in which case the fine was to be £4. If the fine went unpaid, the offender was to spend 1 month in the common gaol.Footnote 58
The statutory rules, however, proved wholly ineffective; indeed, they became a joking matter. In Wright v. Harris, reported in The Times on December 30, 1793,Footnote 59 the newspaper account began with the following editorial admonition: “We hope this case will serve as a warning to the Proprietors of all Stage Coaches, as well as to their Coachmen.” Appearing for the plaintiff, Thomas Erskine said that, “He took it for granted, that almost all the business that was carried on between the different parts of this Kingdom and the metropolis, was transacted by means of these conveyances; and though the Legislature had lately interfered, and had attempted to introduce some regulations and improvements with regard to stagecoaches,” yet “everyone knew, that this Act…had been treated with contempt, and was publicly disobeyed.” In the case before the court, there had been eleven outside passengers, and when the overloaded coach capsized, one of the plaintiff's wife's legs was so badly injured that it had to be amputated. Lord Kenyon told the jury that, “The conduct of those who drive stage-coaches is now become perfectly infamous, and the law which was lately made for the safety of outside passengers, is laughed at and derided.” He said that, “Causes of this nature shall never pass in judgment before me without my recommending it to Juries to convince the parties by their verdict, that it is in their interests, as well as their duty, to obey the late salutary Law.”Footnote 60
Lord Kenyon's exhortations had no effect; indeed, the problem grew worse. In a case before Sir James Mansfield and a special jury in the Court of Common Pleas in 1810, the stagecoach was loaded with six inside and seventeen outside passengers, plus the coachman and “an immense quantity of luggage.”Footnote 61 The plaintiff had been one of the roof passengers, and when the coach broke down, he was thrown off and was badly injured. He was given a verdict for £250.
Another case of a coach equally overloaded came before the Court of Common Pleas in 1817, as reported in The Times on June 30.Footnote 62 According to Serjeant Best, counsel for the plaintiff, there were seventeen outside passengers and a thoroughly intoxicated driver who drove nevertheless at a furious pace. Serjeant Best explained that when another coach approached, what happened was what anyone could anticipate: “The two coaches actually raced the one against the other, the drivers being utterly careless of consequences.” The coach overturned, and the plaintiff was crippled for life. Counsel for the parties conferred with the court and agreed to allow the jury to take a verdict for the plaintiff in the amount of £2,000, subject to a reference of the case, “stripped of all legal objections,” to a Mr. Bower, who would determine the extent of the actual damage.
Collisions on Water
Many ship cases came before the common law courts during the period studied, 1785–1820.Footnote 63 The ship collision cases are of special interest, illustrating the challenge to the judges in understanding the “rules of the road.” What was the standard of care that should govern sailing vessels? Was traffic in the Thames to be governed in the same manner as seagoing ships in harbors or on the high seas? Could the common law judges be expected to grasp these things without expert help?
To a greater extent than was possible with land-based collisions, variables of wind, weather, and tides often produced waterborne collisions that could not be shown to have been caused by negligent behavior. An example is the case of Roxey v. Fenwick,Footnote 64 in which the proprietors of a ship called the Prince Fredrick, heavily laden with coals, was run into by the defendant's ship, the Northumberland. The case was heard by a special jury of merchants, and according to The Times, “the Gentlemen of the Jury, were all perfectly satisfied that nobody on board either ship was to blame.” The accident was said to have occurred on the darkest night many experienced witnesses had ever known, and even though the crews on both ships were on the lookout, they could not see one another until the collision was unpreventable. Therefore, the plaintiffs were nonsuited.
Often determining who was at fault in ship cases was no easy task. There were well-accepted nautical “rules of the road” that were said not to have been observed by the defendants in these cases, and these rules and customs were location specific; that is, conditions were different on the Thames than in the English Channel, and from those on the high seas. Expertise was required in these cases, and there were at least four ways that the requisite expertise could be supplied. First, some of the leading counsel demonstrated extensive nautical knowledge in their arguments and in their questioning of witnesses.Footnote 65 Second, some such expertise might be possessed by the trial judge, although this would be fortuitous. Third, many of the jurors undoubtedly had sailing experience and possessed nautical knowledge; for example, the merchants and gentlemen who populated the special juries.Footnote 66 The fourth source of expertise was the most important: retired sea captains, residents of Trinity House, were frequently called upon to appear as advisors to the trial judges. They did so most frequently in Admiralty cases, but they also made appearances in the common law courts. Their role was that of assessors, and their function was to give neutral advice to help the judges understand the testimony and arguments being presented about ship or boat collisions.
A good example of counsel's familiarity with seagoing rules of the road is the case brought by the owner of the Judy Randolph against the owner of the Petersfield.Footnote 67 According to The Times:
Counsel for the plaintiff contended, that as the Judy Randolph was coming up the channel with the wind North by West, which after she had passed Dungeness, kept her close by the wind, with her larboard tacks on board, in order to reach the Downs, it was the duty of the Petersfield, who had the wind large, to pass her to leeward, and not to dispute the wind with her; it being a loss to a ship going to windward to be obliged to bear away, but none to a vessel going to leeward; and that as the accident happened by the Petersfield with the wind on the starboard beam, striking against the Judy Randolph, while she was close hauled on the larboard tack; and her sails indeed shivering, she was responsible for not having put her helm up and passed her to the leeward.
To those unfamiliar with the nautical world, this description appears to be a foreign language. The trial judge in this case, King's Bench Justice Francis Buller, was unfazed. He, “with great force and judgment, stated the importance of preserving it [the rule, as stated by plaintiff's counsel]; compared it to rules of the road, by which the security of carriages was preserved; and desired the Jury to find the custom, if they thought it supported by the evidence.”
In June 1788, Sir Lloyd Kenyon became chief justice of the Court of King's Bench. He was not nearly as comfortable with the ship cases as was Justice Buller, although at first, Kenyon maintained a pretense of understanding the nautical rules and customs. In Clarke v. Hamlock,Footnote 68 the plaintiff, owner of a sloop, claimed that the defendant's brig, the Fortitude, was so negligently steered into the plaintiff's sloop that the sloop was totally lost. Counsel for the plaintiff argued that, “The rule of the sea was that the ship, which in this case was the sloop, having the wind at large, should go either to the windward or the leeward of another vessel which was close hauled, which was the case of the sloop.” Lord Kenyon told the jury that “[i]n this cause every witness spoke the same language, and that language seemed to be bottomed in good sense.” He added the gratuitous observations that “[n]othing was clearer than that a vessel which had the wind was more manageable than a vessel that had the wind to contend with,” and that “the person who had the wind should yield to another that was close hauled.”Footnote 69
In time, Lord Kenyon became a frustrated spectator, as counsel and witnesses expostulated on the technicalities and customs governing a variety of sailing vessels. On December 10, 1791, The Times ran a brief report of the case of Drury v. Turner,Footnote 70 in which the defendant's boat, the William and Ann, ran into the plaintiff's boat, the Daphne, “and sunk her in the Thames, with a cargo of fish of the value of £25.” The report disposed of the case with a single sentence: “After a great display of nautical knowledge between Mr. Erskine and another Gentleman about the practice of the River, with respect to the manner of boats taking and giving way to one another, the Jury found the verdict for the plaintiff—damages £24.”
Cases involving accidents that occurred on the high seas were difficult for Lord Kenyon to comprehend. In Jones v. Tarbut,Footnote 71 the owners of the ship Albion sued the owners of the ship Amity Hall for having negligently run into the plaintiffs’ vessel while at sea, nearly destroying her. The ships were “part of 160 sail of merchant men, who sailed for Europe under a convoy of his Majesty's ships from Bluefields, in the Island of Jamaica.” According to The Times, Lord Kenyon first consulted two gentlemen from Trinity House, “who on account of their superior knowledge in naval affairs sat as assessors to his Lordship.” They gave their opinion that the Captain of the Amity Hall “ought to have made a signal when he tacked in the night, to put the other ships on their guard that he had changed his position.” Therefore, “the defendant was answerable for damages.”Footnote 72
By late 1795, Lord Kenyon's frustrations with these cases had become intense. In Addison v. Overend, tried on December 8, 1795,Footnote 73 the court dealt with a collision that had taken place in the Gulf of Finland. The plaintiff's witnesses said that the plaintiff's ship, the Sally, “was going close-hauled; whereas the Kingston [the defendant's ship] was sailing large, and therefore the Kingston ought to have given way.” This was contradicted by the testimony of the defendant's witnesses. As reported by The Times, Lord Kenyon “wished that this cause had been tried in the Court of Admiralty, where such cases used to be tried.” He complained that he “could hardly conceive a more disagreeable situation than that in which he was then placed, where, for the space of three hours, he had been obliged to write down so many unintelligible terms and phrases.” Again he was rescued by a Trinity House brother who “sat by his Lordship during the trial of this cause; and his Lordship said, that the great naval knowledge of that Gentleman amply supplied any defect of his.” This expert advice enabled Lord Kenyon to endorse the plaintiff's position, “namely, that if the Sally was close hauled and the Kingston sailing large, the Kingston ought to have gone out of the way.”Footnote 74
Another case exhibiting Lord Kenyon's frustrations was reported by The Times on December 21, 1799: Edmunds v. Surtees.Footnote 75 This case involved a collision in the English Channel, and counsel for the plaintiff, Thomas Erskine, argued that his client's vessel (a “lugger” called The Brave) was run down by the defendant's vessel, the Eclipse. Erskine claimed that the Eclipse was coming down before the wind, and while The Brave was standing close-hauled on the larboard tack, “the Eclipse whipped round out of her course, and struck The Brave, in consequence of which she sunk almost immediately.” Counsel for the defendant sarcastically referred to “his Learned Friend (Mr. Erskine)” as, “from his paramount talents in cases of this kind,” almost “the Lord of the Ocean,” but he encouraged the jury to remember that some accidents happen at sea when neither party was at fault. Lord Kenyon did not have the benefit of Trinity House brethren in this case, but he was aided by a special jury of merchants. Kenyon complained that, “he had heard a great deal of learning for two hours, without understanding one single word of it,” and he “wished that causes of this sort could be carried before some other jurisdiction.” He suspected, nevertheless, that the gentlemen of the jury would find a verdict for the plaintiff, as indeed they did.
Despite his annoyance, Lord Kenyon could not escape these nautical cases. In Colly v. Hurry,Footnote 76 reported in The Times on June 13, 1800, a collision had occurred “in the roads [the waterways]” of Guernsey, and Lord Kenyon again “wished this cause had been in the Court of Admiralty, where they understood these things better than he did.” He said that it “was an unfortunate thing when a cause came before a Judge who was unequal to the trial of it,” but two elder brethren of Trinity House had advised him; they “had been selected to assist him, on account of their extraordinary knowledge in navigation.” They advised that the defendant's behavior was wrong, and the jury returned a verdict for the plaintiff of £920.Footnote 77
Future Issues
A few reports in The Times of late eighteenth and early nineteenth century cases involving collisions on both land and water suggest doctrines that would later become fully established. An example is what would later be characterized as negligence per se.Footnote 78 In Hewitt v. Gray,Footnote 79 tried by King's Bench Chief Justice Sir Charles Abbott, the plaintiff had been an outside passenger on “The Old Original Windsor and Eton Stage Coach,” and according to The Times, the coach carried sixteen outside passengers (including the coachman), six inside passengers, and a large pile of luggage on top. The coach overturned, and the plaintiff was badly injured.Footnote 80 Chief Justice Abbott told the jury “that the defendants were clearly liable, upon the bare statement that the coach had been overladen with luggage and passengers to a greater amount than the law authorized.” Abbott explained that, “The law allowed of only 12 outside passengers, and expressly forbad any person sitting on the top of the luggage,” and “If the accident arose from these causes, the plaintiff was entitled to damages.”Footnote 81
In other cases, the doctrines of assumption of the risk and contributory negligence were anticipated. Indeed, in White v. Boulton,Footnote 82 assumption of the risk was expressly argued by counsel for the defendants. The defendants were proprietors of the Chester Mail Coach, and in a fit of furious driving, the inebriated coachman took too sharp a turn, oversetting the coach “with great violence,” such that the horses dragged the coach nearly 20 yards after it had fallen. Counsel for the defendants argued that “it had lately been determined in the Common Pleas, in the case of Harris v. Wilson Footnote 83 and others, that as the mail coaches are obliged to travel with great speed to effect the purposes of their establishment, and as the passengers who travel in them are aware that great expedition is requisite, they take all risques upon themselves, and that the proprietors are not answerable for any accidents that occur.” Lord Kenyon rejected the argument, stating that he was sure the case in the Common Pleas must have been misrepresented.
Much more common than assumption of the risk was the question of whether contributory negligence by the plaintiff mattered. When the facts permitted, counsel for defendants protested that their clients should not be held liable when the plaintiffs had also been careless: for example, by ignoring a ready opportunity to avoid the accident. In Stuchburg v. Walker,Footnote 84 the plaintiff's servant was riding a horse slowly on the customary side of the carriageway when the defendant's servant barreled up in a post chaise going 14 miles per hour, colliding with the plaintiff's servant and killing the horse. The plaintiff's servant testified that he was on his own side of the road when the accident happened, but if he had chosen, he might have prevented the crash. Lord Ellenborough then interrupted, stating that as the plaintiff's servant “might have prevented the accident, by going out of his own side of the road, he thought the action could not be maintained.” The plaintiff, therefore, was nonsuited. Taken at face value, this very short report sketches a harsh result. The voluntary statement by the plaintiff's servant that he did not abandon his proper side of the carriageway in order to avoid the oncoming chaise, even though he could have done so, barred any recovery for the reckless killing of the plaintiff's horse by the defendant's servant.
Yet less than 2 weeks later, another case came before Lord Ellenborough, Clay v. Wood,Footnote 85 in which a horse had been killed because of the unskillful driving of a “whiskey” [chaise] at a furious speed. The plaintiff's servant was riding slowly on the wrong side of the road when the whiskey chaise flew into and killed the plaintiff's horse. The evidence established that the defendant could have avoided the collision, and according to Espinasse's report of the case, Lord Ellenborough said that the fact that the plaintiff's servant was riding on the wrong side of the road did not justify his [the defendant's] “wantonly doing an injury, which might be avoided.” Therefore, even if riding on the wrong side of the road were to be considered contributory negligence, it did not bar recovery.Footnote 86 The report of the case in The Times makes clear that the plaintiff's servant was not negligent. According to The Times, the defendant was driving so furiously that the plaintiff's servant “stood a better chance of avoiding the accident than if he had attempted to get upon his own side”; also, “The right side of the road in this case was not of so much consequence, since the road was wide enough for four or five carriages to have passed.”Footnote 87
One more noteworthy case came before Lord Ellenborough during the last year of his time in office, as reported in The Times on March 5, 1818. In Bannister v. Spooner, Footnote 88 the defendants were the proprietors of a stagecoach traveling between Brixton and London, and after the stagecoach had gotten underway, the coachman recollected that he had forgotten to pick up two passengers who had booked places for that morning. He attempted to turn around, but the turn was too sharp, and the coach, burdened with passengers both inside and out, fell over. The plaintiff was reduced to “the helpless condition of a cripple.” According to The Times, Lord Ellenborough “was clearly of opinion that the defendants were liable, as the coachman, independently of the question regarding the mode of turning, had been negligent in omitting to take up the two passengers: had he not neglected that part of his duty, the driver would only have had to proceed directly to London.” This is a surprising declaration by Lord Ellenborough, seemingly going more to the issue of causation than to a question of negligence. Also, some of the defendant's witnesses suggested contributory negligence, testifying “that the accident was partly to be attributed to the unwieldy weight of the plaintiff.” Lord Ellenborough's response was that this was the proprietor's fault: “it was the duty of the proprietor of stages to take care that their servants did not receive passengers whose ponderousness might endanger the lives of all the other persons in the coach.” This surprising comment surely could not have been serious: it would neither have been feasible nor within the authority of a common law judge to require the proprietors of stagecoaches or their coachmen to gauge the weight of each passenger and to prevent those too “ponderous” from boarding.
Several ship cases in The Times also reveal suggestions of doctrinal developments yet to be developed, as in The Neptune v. The Scipio.Footnote 89 The Neptune was sunk as a result of striking the anchor of the Scipio in a section of the Thames called “Roger's Road.” Damages were claimed of £266. Justice Buller told the jury there were four questions for them to consider: (1) what was the usage of the river on whether it was necessary for buoys to be attached to submerged anchors in use for ships at rest, (2) whether there was a buoy attached to the anchor of the Scipio when the anchor was put down, (3) whether that anchor caused the harm, and (4) whether the plaintiff had been negligent by lying in Roger's Road. He said that if the jury “were of opinion with the defendant in any of these,” then the defendant should get the verdict. Therefore, even if (1) custom required buoys, (2) no buoy was shown to have been attached to Scipio’s anchor, and (3) that anchor caused the harm, yet (4) the plaintiff had been negligent by lying in Roger's Road, then the defendant should prevail. This would be a contributory negligence bar. The verdict was for the defendant, but nothing was revealed about how the jury answered Justice Buller's four questions.
Finally, in the case of Old v. Tulloch,Footnote 90 counsel for the defendant attempted to show the lack of causation. The case involved a ship collision in the Thames. It was shown that the plaintiff's vessel, the Lady Shore, was at anchor when the defendant's ship, a smack named the Forth, was beating upstream against the wind with full sail, and a third vessel, the Chumley, was coming downstream “broad-side.” The Forth and the Chumley collided, and the Forth was driven against the Lady Shore. On the theory that the Chumley was the original cause of the accident, counsel for the defendant, Attorney General William Garrow, argued that the plaintiff should look to the Chumley instead of the Lady Shore for redress. Garrow cited in support of his argument the well-known case of Scott v. Shepherd,Footnote 91 in which a lighted squib (firecracker) was thrown into a market and was then picked up and pitched from stall to stall, eventually exploding in the plaintiff's face, putting out one of the his eyes. Three of the four Common Pleas judges in the Scott case (Justice Blackstone dissenting) thought that the original thrower of the squib was responsible for all the mischief that followed and that the injury was sufficiently direct (despite the participation by intervening throwers) to justify suing in trespass vi et armis.Footnote 92 Therefore, in the Old case, Garrow argued that the Chumley ought to be fully responsible for the harm, just as was the initial thrower of the squib in the Scott case. But the evidence showed that the Forth initiated the harm by running afoul of the Chumley when the Chumley was floating helplessly broadside “like a log,” and the Forth, under full sail, could have gone on either side of the Chumley, or even after the collision could have avoided the Lady Shore by going aground. Garrow then backtracked and argued “that the action ought to have been Case and not Trespass, inasmuch as the Forth ran into the Lady Shore, in consequence of having been driven there by the Chumley, and not directly and immediately.” Lord Ellenborough was not persuaded; he thought it a simple matter of causation; he did not think Garrow's argument “could be made good, as the defendant's vessel had an alternative: she might have gone on shore, but she preferred to commit the trespass.”Footnote 93
Carrier Responsibility for Lost or Damaged Goods
The basics are simple. In the late eighteenth and early nineteenth centuries, a common carrier was one who transported goods or personal property for value,Footnote 94 and unless an exception applied (discussed subsequently), the common carrier was strictly liable for any loss or damage to the goods or property unless caused by an act of God or by enemy action. Even by the late eighteenth century, this rule about the scope of common carrier liability had a long history.Footnote 95
Disputes about the scope of liability nevertheless continued to arise, as is shown by a case that came before the Court of King's Bench on April 26, 1785, brought by the proprietors of the Staffordshire Navigation on the River Trent against a Mr. Wood, who had shipped cargo on the plaintiff's vessel. As reported by The Times,Footnote 96 “A question of some importance to the mercantile part of the world was this day settled in the Court of King's Bench.” The case was tried on assize, and it featured an unusual alignment of the parties. The plaintiffs were the proprietors, seeking to recover the cost that they had incurred to salvage the defendant's cargo. The transporting vessel “ran afoul of an anchor which belonged to the Union Brig, then lying in the River Trent without any buoy, which ought to have been floating to shew the anchor.” The plaintiffs had been nonsuited at the trial and applied to the Court of King's Bench “to set aside the nonsuit, and to grant a new trial, on the ground that they as carriers were not answerable for any damage happening to the goods, unless such damage happened through their own negligence,…[t]his being an inevitable accident against which they could not guard.” The court, however, “refused the motion, on the general ground that there is no difference between common carriers, whether by land or water, and that they are liable to answer for all accidents, except such as arise from the act of God or the King's enemies.” The court acknowledged that this doctrine might appear harsh, but that “it is for the public benefit, as tending to make carriers more careful and diligent.” The court “distinguished between neglect in fact, and neglect in law, either being sufficient to charge the carrier, though the latter frequently arose from inevitable necessity.”Footnote 97
In a later case, Buller v. Fisher,Footnote 98 Lord Kenyon said that “he must go upon the law of the land as it had been recorded for near two centuries,” and then delivered a historical narrative to the jury. He first stated the long-standing strict liability rule for common carriers, confessing that, “[i]f one were to lay down a new Rule on that subject, he did not know whether he would adopt the present law,” but much deliberation would be required before altering the law. Otherwise, “it might take away a great deal of responsibility that attached on the owners of ships, in consequence of which they got Captains and crews that were skillful, attentive, and knowing.” Further, “Lord Hale had, in the time of Charles II, considered it,” and after Lord Hale had “applied the whole strength of his wonderful mind to it, he held it to be law, as Lord Coke in his writings had done before him.” Lord Kenyon concluded by declaring: “I am not to make law, but to administer it.”
Yet as mercantile trade in England expanded, common carriers became concerned about their legal status, effectively as insurers, especially in an extremely common context: shipments of small packages with undisclosed contents of substantial value. The carriers cast about for some means of protection. It was not realistic to pay the cost of a blanket insurance policy, and the logical solution was to find a legally acceptable way to limit liability. Therefore, it rapidly became a common practice for the carriers to prepare a notice that they took no responsibility for lost or damaged property worth more than £5 unless the shipper purchased special insurance coverage.
This practice, at first, was readily accepted by the courts, as shown in a brief report in The Times of the case of Fregleton v. Godbehere and Ibberson.Footnote 99 The suit was to recover £100, the amount of cash and bank notes in a parcel sent by the defendant's coach but never delivered. According to the report, “It appeared that the plaintiff had previously received into his shop a hand-bill, in which was a N.B. that the proprietors would not be answerable for property above £5 unless entered and paid for as such. Lord Mansfield directed the jury to give a verdict for the defendants, which they did accordingly.”
In Dennis v. Proprietors of the Northampton Stage Coach,Footnote 100 two portmanteaus sent by the plaintiff on the defendant's stagecoach were stolen, and he sued for £60 to cover his loss. Counsel for the plaintiff, James Mingay, said that the defendant should be liable because a thief, albeit an enemy to all mankind, was neither an act of God nor a King's enemy. Justice Buller told the jury that, “the only question in the cause for their consideration would be, whether, upon the evidence they had heard, they were satisfied the plaintiff…had notice of the terms upon which the defendants carried goods.” The defendant's bookkeeper testified that their policy was for shipments of valuables to be entered into the books and paid for accordingly, but he admitted on cross-examination that “there was no board with large letters upon it in the notice, which anybody could read, and which was visible to any person that entered the office.” The jury evidently thought the defendant's notice insufficient, returning a verdict for the plaintiff for £60.
A number of cases involving the sufficiency of notice to customers about the need to pay extra in order to be protected when shipping valuable goods came before both Lord Kenyon and Lord Ellenborough during their respective years as chief justice of King's Bench. In Jardin v. Mountain,Footnote 101 a quantity of linen that had been shipped by the plaintiff was lost by the defendant's stagecoach driver. The defendant's counsel “said there was an advertisement in his [client's] office, which every person who came there must have observed, and from which it appeared that he would only be responsible for goods of the value of £5 unless they were paid for extra.” Lord Kenyon told the jury that this was a case of great importance to the public. He said that, “By the common law of England, a Carrier was an Insurer for the safe delivery of all goods entrusted to him, though at the same time he might exempt himself from the general law of the land by a special contract.” He told the jury it was their province “to decide whether the plaintiff had a reasonable notice.” Apparently the jury found the notice insufficient, returning a verdict for the plaintiff for the value of the linen, £38, 16s.
A month later, another case came before Lord Kenyon in which he forcefully stated his views on the question of notice. In Burton v. Bolton,Footnote 102 the report in The Times had the following editorial introduction: “This cause deserves the attention of every man in the Kingdom who may at any time have occasion to send goods, or wearing apparel, from one part of the country to another, by stagecoaches, waggons, &c.” The defendant operated the Chester Coach, and the plaintiff sued to recover the value of wearing apparel that he had sent on the defendant's coach and that had been lost. Counsel for the defendant, Thomas Erskine, informed the jury that, “[t]he venerable Earl of Mansfield had long ago advised people in the situation of the defendant, to publish in the News-papers on what terms they would contract with the Public to carry goods.” Indeed, Erskine said that the practice of public notice of terms and conditions of carriage had been in place for so many years that, in a similar case, Justice Buller “said he would venture to state it to the Jury as the law of the country.” Erskine also told the jury that his client had put up a board at his warehouse stating the terms on which he would carry the goods, and always had a number of printed advertisements to the same effect in his warehouse where goods were brought for shipment. The notice board and the advertisements stated that the defendant would not be answerable for the loss of goods beyond the value of £5, “unless he received an insurance of three-pence for every pound value above that amount.” A witness for the plaintiff, however, said that “he had been at the defendant's warehouse more than ten times, and had never seen this board till after the present action was brought”; moreover, “The board was placed in a dark part of the warehouse, and it was with difficulty it could be read.”
Echoing Erskine's speech, Lord Kenyon thought that public policy strongly favored the common carriers, and he told the common jury that “[t]his was a thing so settled by the common consent of mankind, that it would be the most dangerous thing in the world to alter it.” Otherwise, “a man might send a service of plate worth many thousand pounds by one of these coaches, and book it as a common parcel; if it was lost, and the proprietor of the coach was liable, it might ruin him.” This could “deprive the Public of all the advantages that were derived from these conveyances.” Bowing to Lord Kenyon's instructions, the jury returned a verdict for the defendant, but accompanied it with a recommendation that he “put a board in the most conspicuous part of his warehouse, so that no person who came there could help seeing it.” Lord Kenyon added a postscript: that he “hoped that no more causes of this sort might be brought, as it was only putting parties to useless expence, since the universal established law of the land was clear upon this subject.”
When Lord Ellenborough took over in 1802, however, things changed. Lord Ellenborough's philosophy was sharply different from Kenyon's, as was emphatically demonstrated in July 1803 in the case of Johnson v. Ottadfield.Footnote 103 As The Times noted in the first sentence of its report: “This was a case which, though the demand is but very trifling, is of considerable importance to the Public in consequence of what fell from the Court.” The defendant ran a common carrier business, and the plaintiff, an attorney, delivered to the defendant 36 gallons of porter,Footnote 104 to be shipped to Yorkshire by wagon. On arrival, the cask was intact, but the porter was entirely gone. The plaintiff, represented by Thomas Erskine, brought suit to recover for his loss.
Erskine acknowledged that carriers protected themselves by notices to the public “that they would not carry any valuable things, unless they were booked and paid for accordingly.” In the case before the court, however, the plaintiff did pay handsomely for the shipment: more than would have been customary for carriage of a cask of porter. Counsel for the defendant, William Garrow, said that the defendant had published a notice “which every person who came there might have an opportunity of seeing, stating, among other things, that they would not carry any liquids, unless at the same time that the carriage was paid they were insured.” He said that no insurance had been bought, and, therefore, that the action should not lie against his client.
Lord Ellenborough thought that the large price that the plaintiff had paid for the shipment might have included insurance, but the important point was that the plaintiff paid all that was demanded of him. There was also testimony that the publican's wife had praised the porter effusively when delivering the cask to the defendant's servants, and Lord Ellenborough said he could not help suspecting that this led to the porter's exit from the cask. The jury returned a verdict for the plaintiff, £5, 2s, 2d, “comprehending the price of the porter, of the cask, of the carriage, and of the booking.” Then, in a passionate outburst, Lord Ellenborough stated the following (printed by The Times entirely in italics):
In consequence of this frittering away of the Common Law obligation of Common Carriers, by introducing so many special contracts, it will be high time for the Legislature to interfere, and restore the Common Law obligation. Nobody now can send things safely. Wherever any alteration has been made by the Carrier of his Common Law obligation, I shall require actual Notice. The Common Law on this subject having existed for so many hundred years, was not without a reason.Footnote 105
Lord Ellenborough's declaration that he would thenceforth require proven actual notice did not appear to last long, as was pointed out many years later by the Court of Exchequer in Bodenham v. Bennett, in an opinion issued on May 7, 1817.Footnote 106 The Exchequer case involved the loss of a valuable bank parcel, evidently caused by a driver “in liquor” and an inattentive bookkeeper. The plaintiff sued in Trespass on the Case, and the trial was conducted at the Hereford assizes by Baron Richards and a special jury. The defense was the usual: there was a posted notice limiting liability for lost parcels of greater than £5 in value unless special insurance had been purchased. The trial judge told the special jury that the limited liability notice had been given to the plaintiff, but if the jury thought the defendant had been grossly negligent, the notice would not apply. The jury awarded the plaintiff £347, 11s. A motion for new trial was argued before the full Court of Exchequer in Easter Term 1817, and the result at trial was upheld. Baron Graham in his opinion saw no difficulty, stating the following: “By the old law, the carrier was bound to take the strictest care of the property entrusted to him; but of late it has been conceded, particularly in Nicholson v. Willan,Footnote 107 where Lord Ellenborough gave up his former opinion, that the liability of the carrier may be qualified, and that he may require an additional premium for the risk he runs; but yet he must take due care of parcels, and if neglects them, he is still liable.”Footnote 108
Returning, then, to Lord Ellenborough and his italicized outburst in 1803 in Johnson v. Ottadfield, he did seem to yield a year later in Nicholson v. Willan. There, the plaintiff sued the defendant carrier to recover for a lost package containing goods worth £58, even though the plaintiff was aware of the standard £5 limited liability notice that had been conspicuously posted by the defendant. Because of the notice, the jury awarded the plaintiffs only £5. A motion for new trial was filed, and at the hearing on November 27, 1804, Lord Ellenborough first recited the traditional strict liability rule for common carriers. Then, in apparent capitulation, he acknowledged the “extent and universality in which the practice of making such special acceptances of goods for carriage by land and water has now prevailed in this kingdom.” This had been done “with the allowance of Courts of Justice, and with the sanction also and countenance of the Legislature.” Further, there was no reported case “in which the right of a carrier thus to limit by special contract his own responsibility has ever been by express decision denied.” Therefore, no doubt with resignation, Lord Ellenborough declared that “[w]e cannot do otherwise than sustain such right in the present instance, however liable to abuse and productive of inconvenience it may be; leaving to the Legislature if it shall think fit to apply such remedy hereafter as the evil may require.”Footnote 109 By these comments, Lord Ellenborough did indeed appear to capitulate.
Appearances, however, can be deceiving. Subsequently, in case after case, the Court of King's Bench continued to protect customers by close analysis of the carriers’ posted notices and practices, and by anticipating the holding in Bodenham that the standard £5 notices did not prevent liability of carriers for gross negligence.Footnote 110
In Clayton v. Hunt (1811),Footnote 111 the plaintiff was a student at University College, Oxford. The defendant operated a carrier wagon and periodically sent a cart to different points in Oxford to receive goods for shipment on the wagon. The plaintiff delivered to the cart a box filled with wearing apparel valued at £21, which was lost. The defense was that there was a standard £5 notice at the office in Oxford, but unsurprisingly, Lord Ellenborough said that the £5 notice would not cover an Oxford student who never went to the defendant's office.Footnote 112 John Campbell's report of the case is very brief, but a fuller report appeared in The Times on November 12, 1811, and according to The Times, it was proved that the plaintiff had actually been several times to the defendant's office but had never read the notice; also, the plaintiff very likely had seen—at his club or elsewhere—a paper that stated the defendant's limited liability policy.Footnote 113 Nevertheless, Lord Ellenborough stated: “If carriers would overpower the common law, which made them liable for all parcels, by such notifications (and his Lordship was very sorry such restricted liabilities had ever been allowed for it makes these sort of people very careless), they must be narrowly watched.”Footnote 114
Lord Ellenborough and his fellow justices continued to chip away at the effectiveness of the £5 notice. In Beck v. Evans,Footnote 115 the plaintiffs, “spirit merchants at Shrewsbury,” shipped a cask of brandy on the defendant's wagon to be taken from Shrewsbury to London. The cask, worth £70, was damaged on route and most of the brandy was lost. The defendants’ wagons gave public notice “that they will not be answerable for cash, bank-notes, writings, jewels, plate, watches, lace, silk, bose, wool, muslins, china, glass, paintings, or any other goods of what nature or kind so ever, above the value of £5 if lost, stolen, or damaged, unless a special agreement is made, and an adequate premium paid.” Lord Ellenborough said that the reach of the catch-all phrase, “any other goods of what nature or kind so ever,” could not be “indefinite,” but must be understood to refer to shipments when the carrier has no means of knowing what the nature of the goods might be. Yet in the case before the court, the defendants knew that the shipment was a cask of brandy, and the shipment was paid for as such. Moreover, the cask of brandy did not “fall within the description of cash or notes, or of any of the goods enumerated in the notice.” The junior justices agreed. Justice LeBlanc said that the reason for the rule that supports the limited liability notice is inapplicable when the carrier is shipping a bulky object of known quality, and Justice Bayley pointed out that the words of the notice—“lost, stolen, or damaged”—did not extend to gross negligence.
One more restrictive step was taken by Lord Ellenborough in 1816 in the case of Hann v. Fagg, reported in The Times on November 30.Footnote 116 The plaintiff, a widow, had traveled from Salisbury to London by the defendant's night coach, and although the evidence showed that at some point she became aware of the defendant's £5 notice, it was unclear when or where she gained that awareness. The facts would have supported a verdict for the plaintiff without much precedential effect, but Lord Ellenborough took the occasion to revive the “actual notice” rule that he had stated in the Ottadfield case 13 years earlier. According to The Times, in summing up to the jury, Lord Ellenborough again stated the traditional common law rule of strict liability for common carriers, but he observed that “[i]n order to lessen this responsibility, about twenty years ago coach proprietors resorted to notices of the kind proved in this case.” However, he then said that “unless it could be established that an individual who had lost a parcel or box was acquainted with this notice, the common law liability of the carrier was not removed,” and it was a jury question whether or not the plaintiff knew of the notice or was ignorant of it. If ignorant, the plaintiff “was entitled to recover the full value.”Footnote 117
The “actual notice” rule was subsequently followed by King's Bench Justice Abbott, sitting as the trial judge in Currey v. Willan,Footnote 118 in which the plaintiff asked his banker in Glasgow to send £200 in cash and bank notes to a specified address in London. The bank clerk, Mr. Robinson, sent the parcel with the defendant's Glasgow coach, but it was stolen. Mr. Robinson admitted on cross-examination that he had heard of the existence of the £5 notice, but not specifically with regard to the Glasgow mail. Justice Abbott, “in summing up, observed that the object of these notices by carriers was to do away with their common law liability: but they would still be responsible, unless it were shown that the notice had come home to the knowledge of the party transmitting.” The jury returned a verdict for the plaintiff for £200.Footnote 119
From the standpoint of encouraging trade, the vacillation and uncertainties in the long trail of cases decided in the common law courts were, in the view of many, counterproductive. In time, Parliament intervened, enacting the Common Carriers Act of 1830. This statute, among other things, provided that shippers of “articles of great value in small compass” were limited to a recovery of a maximum of £10 unless they notified the carrier of the true value of their parcels.Footnote 120
Apart from losing or damaging goods in transit, a common problem for common carriers was delayed delivery. An attempt was made in the 1800 case of Clarke v. Pickford Footnote 121 to establish that delay that was not the carrier's fault should also excuse the carrier from liability. The plaintiffs (described as “eminent druggists in the City”) engaged the defendant's firm to send a large quantity of ginseng root from Liverpool to London by the defendant's “canal waggon.” According to counsel Thomas Erskine, representing the plaintiffs, the usual delivery time by this method was 10–14 days, but it took almost 6 weeks for the ginseng shipment to arrive, by which time the plaintiffs had suffered serious economic loss. Counsel for the defendant said that only by heroic effort had the shipment arrived when it did during the exceptionally harsh winter that year. Instructing the jury, Lord Kenyon (who, as noted earlier, thought that trade was enhanced by supporting the carriers) said that, “The general rule was, that those who were employed by others were to use due diligence, but the law did not require extraordinary exertion.” He said that all judges and juries “did not expect that exertions should be made beyond the ordinary course of the Post by which the ordinary transactions of mankind were carried on.” The question was simply “whether the Defendant had used due diligence.” The jury verdict was for the defendant.
Damages
In common carrier cases, ascertaining damages was often the straightforward task of determining the value of the contents of a lost or stolen parcel.Footnote 122 Also, when property was damaged or destroyed by a negligently caused collision or accident, the value of the destroyed or damaged property would be awarded, if satisfactorily brought out in evidence.Footnote 123
An unusual result was reached in the case of Owners of the Bon Adventure v. Owners of the Betsey. Footnote 124 The Bon Adventure had been sunk after colliding in the English Channel with the Betsey. Each party accused the other of not “steering according to the regulations observed at sea.” The plaintiffs prevailed, but instead of the value of the vessel (claimed to be £1,060), the jury awarded £500. Thus, according to The Times, “the Jury divided the loss between the parties.” By contrast, in the case of Perry v. Bouchier,Footnote 125 the jury, with unusual specificity, itemized its verdict for the plaintiff: £30 for repair of the boat that had been damaged by the defendant's vessel; £10 for diminution in value of the boat; £8 10s for an anchor; £8 7s, 6d for oars; and an allowance for incidentals and the cost of a rental boat while the plaintiff's boat was being repaired.Footnote 126
Not infrequently in ship collision cases, the evidence was insufficient to permit confident calculation of the damage that had been negligently caused, and in such cases, the usual solution was to take the verdict for the plaintiff and to refer the question of damages to an arbitrator, or to a trusted barrister, court official, or merchant.Footnote 127 Also, in Whitby v. Hill,Footnote 128 described previously, a settlement was reached to take a jury verdict for an unusually large amount (£2,000), and to make the verdict subject to an award by a Mr. Bower.
In personal injury cases, occasionally the plaintiff's demand was only to cover medical expenses,Footnote 129 but usually the jury awards had two components: reimbursement of medical expenses, and a supplementary amount to compensate, at least partially, for incapacitation from work, continuing disability, even pain and suffering. In Newcombe v. Robert,Footnote 130 the plaintiff was injured when an overloaded coach capsized, and the jury awarded £150 to cover medical expenses and £100 more in response to Lord Ellenborough's directive that “the Jury would assess what the plaintiff ought to have in addition to what he had laid out.” Similarly, in Hewitt v. Gray,Footnote 131 another overloaded coach case, the jury awarded £300 damages in response to Chief Justice Abbott's instruction that the plaintiff “appeared to have incurred a very considerable pecuniary expense for medical assistance; but in addition to the amount of that, she was entitled to something for her personal sufferings, and the permanent injury she seemed likely to have sustained.”
Occasionally, the elements of a personal injury award were specified. In Watts v. Fermor,Footnote 132 the plaintiff was a livery stable keeper who was awarded £400 damages for injuries suffered when the defendant's coachman ran into the plaintiff's gig. According to The Times, the jury award was to cover £9, 16s for harm to the gig and harness, and the remainder to cover the plaintiff's expenses for medical attendance for 8–10 weeks while he was confined and convalescing, together with “the loss he incurred from not being able to attend his business during all that time.” Also, in Bailey v. Wilson and Levi,Footnote 133 the driver on the defendant's stagecoach forced the plaintiff's carriage to the side of the road, causing it to overturn, and The Times reported that “the Plaintiff had his leg fractured in a manner too shocking to describe.” For remedy, the Plaintiff argued as follows: “For the term of eleven weeks he was confined at Horton Inn, where he was attended by Physicians and Surgeons, at a very considerable expence; and he sought from the Jury a just compensation and damages for the agony he had endured, for the charges he had incurred, and for the loss he sustained in the cessation of the business on which his subsistence so much depended.” The jury awarded the plaintiff £600.Footnote 134
Jury verdicts in personal injury cases were, nevertheless, unpredictable. In Ingham v. Chopping,Footnote 135 the trial judge, the lord chief barron of the Court of Exchequer (Sir Archibald Macdonald), told the jury that if they found the defendant negligent, to award “such damages as they thought reasonable compensation.” The jury awarded £60, an award that seems surprisingly small in view of the plaintiff's injuries: a fractured skull, becoming deaf in one ear and blind in one eye, and with little likelihood of ever recovering perfect health. Also, according to The Times, the “unfeeling” testimony of the driver of the coach “excited the disgust of all who heard him.”
When children were the injured victims, large damages were not to be expected. In Williams v. Webb,Footnote 136 the defendant's horse-drawn cart injured a 2-year-old child, and suit was brought for damages of £100. The child's arm was broken and the break was likely to cause lasting suffering. Lord Ellenborough praised “the moderation of the claim of damages,” and the jury awarded the amount that had been sought, £100. In Mannington v. Nicholls,Footnote 137 the plaintiff's 2-year-old son had required 3 months of medical attention and “would always be a cripple.” Yet Lord Ellenborough in his instructions said that it was not a case for outrageous damages, it appearing that the coachman was unaware of the accident and that the defendant was a man “in poor circumstances.” The jury awarded the plaintiff only £10.
When a wife was the victim, the damages assessed depended, at least to some extent, on whether the wife lived or died. In Palliser v. Page,Footnote 138 the plaintiff sued for injury to his wife when she was left alone in the defendant's coach while the driver and the guard went to a pub to drink. The horses spooked, and the wife suffered a broken leg, perhaps disabling her for life. The trial was before Sir James Eyre, Chief Justice of the Court of Common Pleas, and a special jury awarded damages of £500. A very different outcome occurred in the case of Perry v. Hunswick,Footnote 139 tried before Lord Kenyon and a common jury. The plaintiff's wife had been thrown from the defendant's stagecoach and suffered severe injuries, from which in a short time she died. Lord Kenyon told the jury that if they found that the harm was caused by the coachman's negligence, the second question for them would be “the quantum of damages,” and, “They would indemnify the plaintiff for all his expenses, and perhaps they would go a little further.” The jury returned a verdict for the plaintiff, £100.
A similar case came before Lord Ellenborough and a common jury in December 1808,Footnote 140 in which the plaintiff and his wife were outside passengers on the defendant's overloaded coach when the coach was overturned by the driver's negligent driving. According to the report by Campbell, “Lord Ellenborough said, the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife's society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution.”Footnote 141 Lord Ellenborough explained that, “In a civil Court, the death of a human being could not be complained of as an injury; and in this case, the damages, as to the plaintiff's wife, must stop with the period of her existence.”Footnote 142 Comparable expressions are in the report of the case in The Times, plus the following: “It was to be considered, that the Plaintiff had himself been confined to his bed two days, and at a time when he was most anxious to be near his wife.” The jury verdict was for the plaintiff, £100.
A final question with regard to damages is whether juries were ever permitted or encouraged to give punitive awards when the behavior of the defendant or the defendant's servants was exceedingly bad. According to reports in The Times, this was done, but it was rarely explicit. Lord Kenyon, however, was the exception. In a number of contexts, Lord Kenyon overtly encouraged juries to give exemplary damages as a deterrent to immoral or irresponsible conduct.Footnote 143 An example is the case of White v. Boulton,Footnote 144 in which the defendant's driver of the mail coach was “in liquor,” flogging his horses on a curve so furiously that the coach overturned, causing multiple injuries. Lord Kenyon told the jury “that the plaintiff did not ask for vindictive damages,” but only to cover his expenses “and some compensation for the pain he had endured.” Lord Kenyon said that the plaintiff was certainly entitled to those damages, and he “intimated, that even exemplary damages might be salutary in their consequences, since they would have a tendency to make the Proprietors cautious in future to employ skillful, discrete and sober drivers.” The jury verdict, however, was a mere £60.
Occasionally a jury would act on its own, returning a verdict of a large, round sum that surely included silent exemplary damages. A good example is the case of Matthews v. West Middlesex Water-Works.Footnote 145 The defendant had left a large pile of rubbish in the road that had overturned the Liverpool coach, causing the plaintiff's injuries. The plaintiff in this case was the coach driver, and plaintiff's counsel, Attorney General William Garrow, said that, “he hoped the damages the Jury would give in this case, would prove to the different Water Companies, that they must not trifle with the lives of his Majesty's subjects,” adding that, “The defendants were a wealthy Company and well able to pay any damages the Jury should think proper to give.” The jury, accordingly, returned a verdict of £500, and the attorney general was nonplussed; even though he was plaintiff's counsel, he said that the verdict could not be accepted because the plaintiff had only demanded £393.Footnote 146 After further deliberation, the jury refused to alter their verdict, and the attorney general capitulated, directing that the verdict should be recorded.
Conclusion
The feature of the nisi prius reports in The Times that is the most illuminating is the frequent inclusion of the instructions given by the trial judges to the juries. This is especially so in the contexts of collisions and common carriers. Both the judges and the lay jurors were intrinsically sympathetic to plaintiffs who had been injured by the carelessness, sometimes recklessness, of others in public thoroughfares and by methods of transport. Entrusting a jury of local residents with the responsibility of assessing evidence in order to decide who was at fault seemed fundamentally fair. Even when no fault could be found, juries were frequently able to return verdicts that were satisfactory based on broad principles of public policy, as in cases of common carriers.
Nevertheless, during the years under study, there were complicating cross-currents. The economic health of the nation was increasingly tied to commercial trade, and efficient transport of goods and travelers was of growing importance. Juries depended on instructions from the trial judges, and the judges’ personal philosophies were often instrumental. With common carriers, for example, the judges had to decide whether in their instructions to emphasize the public commercial benefits of the carriers and to endorse ways in which the carriers could limit their potential liabilities for negligently inflicted loss or harm. Lord Kenyon thought it his duty to do so, whereas Lord Ellenborough preferred to protect consumers and travelers. As has been shown, the law reports in The Times exhibit the various judicial viewpoints in jury instructions that would otherwise not have survived.
Further, the law reports in The Times collectively help in understanding why trial by jury in civil cases was so venerated by the public during the period under study, 1785–1820. Surviving manuscripts such as the trial notes kept by Lord Mansfield and Lord Ellenborough indicate that many hundreds of jury trials were conducted each year in London, most of them absent from the standard law reports, and in the vast majority of these (somewhere between 80 and 90%), the verdicts by unanimous panels of twelve jurors ended the disputes. Naturally the jury process was not flawless, but as the reports in The Times demonstrate, trial by jury was a well-accepted and largely successful means of settling many civil disputes that disrupted Londoners’ daily lives.
