“A far higher standard of care should be demanded of the motorist by reason of his having brought upon the public roads a lethal instrument of great mobility and power,” a famous judge didn’t say in the 1920s. Didn’t say because the judge was an invention of comic writer, trained barrister and one-time MP for Oxford University, A. P. Herbert, who wrote a regular column in Punch. This column was a parody of the common law. In his cases – some of which were later reported as real ones, such as a cow being used as a cheque – Sir Alan Patrick Herbert poked fun at judges, lawyers, barristers, and the police. His anti-hero was Albert Haddock, who got into a great many scrapes, and was frequently – and hilariously – prosecuted. With wit and verve, Haddock (assumed to be a smart Alec version of Herbert himself) would often beat the legal system.
Herbert was very much opposed to the lack of a speed limit in the UK. For a few brief years in the 1930s motorists were allowed to choose whatever speed they wanted wherever they wanted. And it’s against this background that the following fictitious case should be read. It highlights the sense of entitlement to the public highway that many motorists of the time displayed, and which I discuss at length in my book.
Haddock v Thwale may be fictitious but there were many other authority figures in the early part of the twentieth century who fretted about the monopolisation of roads by those driving “monsters” at great speed.
HADDOCK v. THWALE – Or; WHAT IS A MOTOR-CAR?
THE Court of Appeal to-day gave judgment in this case, which raises an interesting point concerning the rights of the pedestrian and the legal nature of a motor-car.
The Master of the Rolls: This is an appeal from a judgment of the Lord Chief Justice dismissing an action for damages brought by Mr. Albert Haddock against Mr. Frank Thwale. Mr. Haddock, while crossing a public thoroughfare in London, was knocked down by Mr. Thwale’s motor-car and received bodily injury. Such events are now so familiar a part of the life of our streets that few citizens any longer resent or even remark upon them. But Mr. Haddock saw fit to make an accusation of negligence against Mr. Thwale and to demand compensation.
Mr. Thwale replied that Mr. Haddock himself had been guilty of negligence in passing across the road in front of his advancing motor-car, which was approaching the crossroads at a reasonable speed of thirty-five miles an hour; that Mr. Haddock was in fact what is contemptuously known as a ‘jay-walker’, that is to say, a pedestrian who may in the near future be expected to have wings. (Laughter) Mr. Haddock replied that seven minutes before the accident he had been a prudent and reasonable man, patiently waiting for the motorcars to go by in order that he might cross the road and keep an appointment, which in his judgment was as, important as any of the affairs of the various motorists whose vehicles blocked his passage; that he stood for several minutes under a board marked ‘PLEASE CROSS HERE’; that he made five separate attempts to cross at that point, but in each case was driven back in fear to the pavement; that the constable on duty took no steps to arrest the stream of motor-cars; that the said stream continued, and threatened to continue, without interruption; that he was reluctant to spend the remainder of the day on the wrong side of the road; and that at last, growing desperate, he did, in fact, scuttle across the road to a refuge eight yards away in the usual manner of the pedestrian-that is to say, as it were a criminal in flight, a soldier pursued by a sniper, or a common hen; that he underestimated the speed and ferocity of Mr. Thwale; that Mr. Thwale, though some distance away when the crossing began, was travelling too fast to avoid him, and that, if he is a jay-walker, Mr. Thwale may fairly be described as a jackal-driver.
The Lord Chief justice directed the jury that it was the duty of both parties to take reasonable care and to avoid as much as possible the consequences of the negligence of the other, and to recollect that what happened might have been due to the simultaneous negligence of both. The jury found that there had in fact been contributory negligence on the part of Mr. Haddock, and returned a verdict for Mr. Thwale. Mr. Haddock appealed on the ground of misdirection of the jury.
The appellant has conducted his own case with singular ability and charm, and he has advanced a novel proposition. He asks this Court to say that the Lord Chief Justice was wrong in law in placing upon all fours the negligence of a motorist and the negligence of a pedestrian. The appellant’s contention is that a far higher standard of care should be demanded of the motorist by reason of his having brought upon the public roads a lethal instrument of great mobility and power. If, says Mr. Haddock, the respondent were to walk on a crowded pavement carrying a loaded gun and with his finger on the trigger, a pedestrian who was wounded by the accidental discharge of that gun would not be held guilty of contributory negligence by reason only that he had failed to keep out of the way or had omitted to proceed upon his hands and knees.
But Mr. Haddock goes further. He has argued that this Court is bound by the celebrated case of Rylands v. Fletcher (L. R. 3 H. L. 330). In that case the plaintiff’s property was damaged by water which, without any fault of his, escaped from his neighbour’s, the defendant’s, reservoir. The House of Lords concurred with Mr. Justice Blackburn’s memorable pronouncement, which has been set to music(1):
‘We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. . . . The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works is damnified without any fault of his own, and it seems but reasonable and just that the neighbour who has brought something on to his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued; and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequence. And upon authority this we think is established to be the law, whether the things so brought be beasts or water, or filth or stenches.’
‘Or motor-cars,’ Mr. Haddock adds. And we think he is right. Mr. Thwale’s motor-car should in law be regarded as a wild beast; and the boast of its makers that it contains the concentrated power of forty-five horses makes the comparison just. If a man were to bring upon the public street forty-five horses tethered together, and were to gallop them at their full speed. past a frequented crossroads, no lack of agility, judgment, or presence of mind in the pedestrian would be counted such negligence as to excuse his injury. And the fact that the forty-five horses of Mr. Thwale are enclosed in a steel case and can approach without sound or warning does not diminish, but augment, their power to do injury. The ordinary walking citizen cannot be expected to calculate to a nicety the speed, direction and future conduct of such monsters, for not even their own drivers can do that. In the face of a procession of them the wise may well blunder. the brave falter, the resolute waver, and the swift be too slow. Mr. Haddock himself is of an athletic habit, a cool thinker, accustomed to danger, a good runner and jumper; but still his equipment was not enough to save him from a mauling. What precautions then can avail the aged and infirm, the deaf, the halt, the nursemaid, and the child? If Mr. Haddock had been manifestly lame no jury would have excused Mr. Thwale for knocking him down; but the motorist is no more entitled to murder a man with two legs than a man with one. We all have a right to expect that people will not deliberately let loose mad dogs in the streets, expose us to the assaults of tigers, or go about with dangerous explosives which they are unable to control and if they do these things they do them at their peril. Mr. Thwale has brought on to his own property and allowed to escape from it on to the public highway, which in a sense is the property of Mr. Haddock, as of all the King’s subjects, a dangerous instrument ‘which was not naturally there, harmless to others so long as it was confined to his own property, but which he knew would be mischievous if it got out. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep’ it there.’
It has been argued before us that his act is one sanctified by long popular usage; but we are concerned, not with popular usage, but with the law. The fact that this point of law has never before been brought to the notice of this Court does not deprive it of substance. Lord Mildew said, in Staggers v. The Metropolitan Water Board: ‘There can be no prescriptive right to murder or maim the King’s subjects.’ We sometimes laugh at our ancestors, who insisted that a red flag must be carried in front of every motor-car; but we begin to see that there was something in it. At any rate that precaution throws some light upon the juridical character of the motor-car at its birth, and nothing, so far as we know, has happened to alter it.
An act of wanton defiance or wilful carelessness in the injured party might be a circumstance which would justify a reduction or even denial of damage; but prima facie the owner of the wild beast, as we hold this motor-car to be, is liable for the consequences of his rash act. In any case we find nothing of the sort here. Mr. Haddock, while lawfully crossing the road, was injured by a dangerous and uncontrollable monster, which had been released by the act of the respondent; and he must receive damages of five thousand pounds. We order that the motor-car be destroyed.(2)
Lord Justice Batter: I agree – but upon other grounds. I do not think that. it is necessary to drag in Rylands v. Fletcher, and draw fanciful comparisons between reservoirs and vehicles. But I think that Mr. Haddock should succeed upon principles analogous to those which govern the movements of ships at sea. There seems to be present in the minds of the respondent and his advisers the notion that he has rights on the highroad prior or superior to those of Mr. Haddock.(3) The notion, of course, is contrary to history, to social justice and to well-accepted principles of Common Law.(4) But the fact remains that whenever the question arises on the highroad: ‘Shall A, the walker, or B, the motor-driver, pause in his progress or deviate from his course in order to avoid a collision?’, the assumption is invariably made by B (5) that it must, or will, be A who pauses, deviates, or stops. And the defendant under cross-examination admitted that this assumption was operative in his mind when he saw Mr. Haddock hovering anxiously in the gutter; which is tantamount to saying that he has a better right to occupy the road than Mr. Haddock. For what reason? Because he is in control of a vehicle possessing great mobility and Mr. Haddock is not. But what is the proper conclusion from that? That he is better able to keep out of the way, and therefore, so far from having greater rights, he has greater responsibilities.
The rule of the road at sea provides a striking and instructive parallel. It is the rule at sea that a steam vessel shall, at her peril, keep out of the way of weaker vessels-that is to say, of sailing-ships or oared boats. The principle of that is the principle already adumbrated: that the steamer, having the greater power and capacity for manoeuvre, able to proceed easily at will in any desired direction, is the better equipped for the avoidance of collisions. The greater the power the greater the duty; not, as the respondent seems to say, the greater the power the greater the rights. The steam-vessel is not too proud to alter her course. or reduce her speed in order to avoid a sailing-vessel. Nor are those sailing-vessels which are run down by steamers described as ‘jay-sailors’ or recorded contemptuously as having been sunk through ‘carelessly crossing the ocean’. The sailing-vessel, like the walker, may be almost obsolete, but she retains her rights; she ventures confidently across the seas and is not compelled. to cower in port because of the speed and power of the steamer. On the other hand, in a narrow or dangerous channel, where the steam-vessel no longer has freedom of manoeuvre, the sailorman must not and does not foolishly insist upon his rights, a point which should be noted by the pedestrian.
These just principles and values, consistently maintained, would diminish the risk of collisions on land as they do by water.(6) And though they are not yet embodied in Statute Law they should guide the Courts in the distribution of responsibility for what we euphemistically call motor-‘accidents’.
Mr. Haddock has as good a right to go about the town without undue impediment as the respondent; his appointments, and his peace of mind, are as important as Mr. Thwale’s-in the present instance more so; for Mr. Haddock was on his way to work and the defendant was on his way to pleasure. So that, if there were any question of priority, Mr. Haddock would have the advantage. But there is no such question. The appellant relies solely upon the common rights of reasonable mobility upon the King’s highway. A row of motor-cars is no more entitled to obstruct the pedestrian than a row of pedestrians, to obstruct the motorist. A man does not, when he acquires a pistol or a gun, acquire the right to menace or retard the movements of his fellow-citizens: neither does he acquire that right when he acquires a powerful motorcar. Yet, so far as I can understand the defendant’s case, he maintains that he does, and that the plaintiff has no just cause of complaint against a motorcar until it kills him.(7)
He advanced, during cross-examination, the singular defence that if Mr. Haddock had run very fast he could have crossed the road in safety sooner. But there is no law requiring the pedestrian to run across the King’s highway. Indeed, there are many citizens who through age or infirmity are unable to run. ‘They, too, have a right not merely to life but to convenience, dignity, and peace of mind; and the defendant has a duty not only not to kill them but not to chivvy them across the road as if they were heads of cattle or poultry. The dignity of the human race must not be made subordinate to any machine. The time may come when pedestrians will be compelled by law to tunnel under the roads, build bridges over the roads, or be fired across by means of rockets. But so long as they share the roads in common with the defendant, the defendant must so conduct himself that the careful citizen is able to walk across the common highway at a reasonable pace, without alarm, inconvenience, or injury. He has not done so. He must pay damages.
Poppitt, L.J., concurred.
1 Law Students’ Glee Book (Webster and Stow, 2s. 6d.), and see Inner Temple Idylls (arranged by H. Strauss), 6d.
2 A pleasing reversion to the old law of ‘deodand’, under which a personal chattel which had been the immediate occasion of the death of any reasonable creature was forfeited to the Crown, to be applied to pious uses, as e.g. where an adult (but not an infant) fell from a cart or horse and was killed. See Maltravers Case (i Bole- 1731) in which a homicidal bull was held not liable for forfeit, the deceased being a woman.
3 It is sometimes backed by the impudent plea that the motorist pays a petrol duty which is not borne by the pedestrian. Which is like saying that he who pays duties on liquor has a better right to enter a hotel than a teetotaller: or that he who pays tobacco-duty is entitled to blow smoke in the face of a non-smoker.
4 Qui prior est tempore potior est jure.
5 This was in 1930- pre-Hore-Belisha days.
6 Cf. Bracton: ‘In via non velocitas sed vita valet.’ And see Wool, J., in Archdeacon Rogers v. Lightning Motor Coach Co.: ‘What is the point of all this speed? Is any one a penny the better? Are we wiser, more efficientare we even more punctual? Gosh, no! We start later and we arrive later. A-tishoo! When I see these young fools dashing about- A-tishoo! Drunk with speed, Sir Ethelred! A boy of seventeen may not buy a glass of beer; but he may drive a motor-car at seventy miles an hour. Nothing said till he kills somebody, and not much then. What a country! Usher, stand by- I am going to sneeze again.’ (Gresharn Law Reports, 1929, page 341)
7 Cf. Hale’s Maxims: ‘Viventi nonfit injuria.’