CARRIAGE AND MISCARRIAGE
By DR. C. K. ALLEN, K.C.
THE motor vehicle may deplete the population, but it enriches unceasingly the law reports and the legal profession. An important type of motor vehicle is the hackney carriage, which, though the focus of much legal erudition, to the general public is merely a quaint archaism for a taxicab. Of late it has been behav- ing, in law, moie like a juggernaut than a cabriolet ; and the London taxi-driver, who, to the casual glance, may seem a mild and almost patriarchal kind of person, has been showing a militant spirit which has won some notable victories in the courts. It is, indeed, not too much to say that certain recent decisions constitute the Taxi- Driver's Magna Carta.
For example, it is now settled that if a London taxi is hired to take a passenger beyond the six-mile radius of 1 the metropolitan area, the driver is not limited to what is "on the clock," but may bargain for any sum which the passenger is prepared to pay. This does not seem an unreasonable arrangement for a long journey, but the court was able to affirm its legality only after anxious con- sideration of six statutes and a miscellany of orders, ranging from 1831 to 1934. It is a great mistake to think of the taxi as a mere by-product of the machine age. In law nothing is more interesting about it than its antiquarian dignity, for, as a hackney carriage, it must take its place in the long historical process of locomotion.
This is particularly true of the case of "Hunt v. Morgan," which must go into our books of constitutional law along with Somerset and Darnel and the Seven Bishops and other great pillars of liberty, since it marks the emancipation of the taxi-driver. If there was any legal principle, not excluding Habeas Corpus, established beyond doubt in the mind of the London pedestrian, it!-was that the dis- engaged cruising taxi was bound to stop and accept the passenger who hailed it. True, it seldom did ; true, its flag of invitation was frequently swathed in mufflers, socks, gloves or other cerements ; true, the passenger with a heavy bag and a train to catch was often left on the pavement outraged but helpless. Sometimes a Hampden, more resolute than the rest, would take the number of the taxi and visit the driver with the utmost rigour of the law ; and many a fine has been paid for this violation of the fundamental rights of an Englishman.
But the utmost rigour of the law was not law at all I Every one of these supercilious drivers was wrongly convicted ; every one of them is entitled to a free pardon, together with handsome apologies from the British public. For it now appears that the cruising taxi is not obliged to stop when hailed ; nay, more, if the driver actually solicits custom when cruising, it seems that he is guilty of an offence under the London Hackney Carriages Act, 1843. It may even be that the pedestrian who charters him is liable for aiding and abetting him. Again, the court had to begin at the year 1831 and, working through a rich variety of statutes and sub-statutes, was forced to the conclusion that a London taxicab is " plying for hire " only in two sets of circumstances: (1) when it is stationary and disengaged, having just set down a passenger, and (2) when it is on a rank. Find a rank and you may find a taxi ; and never mind if the rank is a mile away. The Lord Chief Justice indulged in some speculation about the origin of cab-ranks, recalling that they must have existed in 1827, since in that year Mr. Pickwick took the first cab on the rank at St. Martin's-le-Grand in order to take the coach to Rochester. This was unwise of Mr. Pickwick ; if he had lived in a later age, he would doubtless have remembered Mr. Sherlock Holmes's injunc- tion never to take the first cab on the rank. The problem of the
modern Pickwick, Holmes or Watson will be to find any cab on any rank.
This case is remarkable also for at least one startling dictum from the Lord Chief Justice: "Under modern conditions, the cruising taxi is one of the commonest sights in London streets." With great respect, yes—except when one needs it most. But perhaps the Lord Chief Justice has been more fortunate—or possibly more vigilant— than many of his fellow-citizens.
The court did not reach its conclusion without a reluctance natural to pedestrians (for judges nowadays are also pedestrians), and Lord Goddard pointed out that once upon a time, when all cabs were horse-drawn, the legislature may well have wished to " discourage the crawling cab " as a nuisance to traffic. But nobody today wishes to discourage the crawling taxi, unless, perhaps, he is inside it and is late for an appointment. We can only wait to see whether our legislators, a few of whom are also pedestrians (if below ministerial rank), will make the taxi crawl again. Meanwhile, the taximan can keep the flag flying in celebration of his victory ; and the pedestrian must derive what comfort he can from the reflection that whatever revolution in the law " Hunt v. Morgan " may have introduced in theory, in practice it will not make much difference after all.
Taxicabs are not the only kind of vehicle affected by the stately continuity and the imperturbable antiquity of our law. Suppose, for example, that a tram-driver negligently fails to apply his brakes at the right moment and runs into a lorry. Has he committed an offence ? Yes (says a recent case), if you regard a tram as a stage carriage, which indeed it is in law, and go back to the appropriate section of the Stage Carriages Act, 1832. A useful substantive, this word carriage, signifying, in 1948 as well as in 1832, anything which carries.
On the other hand a venerable statute may sometimes save a delinquent from what would seem to be a just vengeance. Thus, there is no commoner or more dangerous act of thoughtlessness than suddenly to open the off-side door of a stationary vehicle without looking to see what is coming behind. Many a cyclist has been swept to earth in this way, and although, as a motorist, I find it difficult to sympathise with a cyclist in any circumstances whatever a stern sense of justice compels me to admit that this sort of conduct treats the cyclist with less than his poor deserts. There is not a magistrate in the country who has not imposed fines for this offence, and there must be hundreds—perhaps more—of door-swingers who have paid for their sins at the rate of, say, forty shillings per sin. All these have been victims of miscarriages of justice. They, too, must have free pardons and apologies. The almost incredible reason is that, amid all the multitude of motoring do's and don't's, there is none which covers this particular manner of behaving " without due care and attention." Therefore it has been customary to go back to an Act of 1835 and to regard the motorist as the " driver of any carriage whatsoever," since a carriage is a carriage whether propelled by real horses or merely by horse-power. The motorist, as carriage- driver or coachman, could then be punished for " negligence or wilful misbehaviour " by which he caused any hurt or damage to any person, etc., being or passing upon the highway. But unfortunately until 1948 it had not been realised that the relevant section in this old Act was clearly intended to apply to misbehaviour while driving, not while standing still. And so the door-swinger also gets his Bill of Rights, and all the cyclist can do in future is to sue him for damages, with what optimism he can muster.
Devious as well as hard is the way of the transgressor. The stationary door-swinger is surely " in charge " of his vehicle, and yet he commits no crime. But if a motorist who has dined too convivially has the sense to realise that he is not fit to drive, and if he wisely stops and takes a recuperative nap in the back of the car, and if he is there found by a policeman, he has committed an offence, for he is " in charge " of his car when " under the influence." At rest or in motion, the influence is still the influence, and once under it you do not easily, in law, rise above it. Let me end on an ornithological note by mentioning that my authority for this last proposition is a case called " Duck v. Peacock." A parable, my brethren ? As the tortoise may outstrip the hare, so justice will come web-footed even to the nroudest bird.
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