Archive for August 11th, 2011

A Legal Lyric – The Martyred Mule

August 11, 2011



The 139th volume of the Pennsylvania State Reports, recently published, contains as an appendix the following interesting verses.




A dissenting opinion, by permission from “The Green Bag,” III., 27. Audi alteram parlem!

Where a mule, on his way home from work, unattended, is on a railway track at a highway crossing, the railroad company is under no obligation to sound the whistle, to warn him of an approaching train: Fisher v. Penna. R. Co., 126 Pa. 293.

In Texas, where the potent twelve
Pronounce the penalty of crime,
I find, when in the books I delve,
That rather more than half the time
The jury, with a disregard
Of custom, by some novel rule,
Pronounce the sentence, somewhat hard,
That man is worth much less than a mule;
But then, in Pennsylvania,
This stupid quadruped of late,
By some judicial mania,
Is much less favored in estate;

From off a dusty, hot highway,
Entranced as in a pleasing dream,
A tired mule doth careless stray
Where coaches are propelled by steam, —
A sober and industrious beast,
Released at close of day from load,
Perchance the sight of grassy feast,
Where lands of railway cross his road,
Upon the tracks attracted him
Away from customary beat;
Perchance an expectation dim
Some donkey-engine there to meet.
And there he crops the juicy herb,
Oblivious of the deadly car,
While spasms of delight disturb
Appendages auricular;
The while assiduous tail doth twitch
To fend mosquitoes from his back; —
Alas! it had no power to switch
Approaching train from off the track!

Poor silly wretch! he strays along
Unthinking, heedless, void of fear;
And though his ears are very long,
Alas! he has no engineer.
And so a locomotive rude,
Upon that deadly iron rail,
Doth very wantonly intrude
‘Twixt ample ears and meager tail.

Now, when to suit the matter grew,
The engineman had naught to say,
Save that though he no whistle blew,
He thought the mule would step away.
He knew the measure of his care
Toward men appearing on the road;
To mules he never was aware
A similar vigilance was owed.
‘Twas strange if sorry quadruped
Could stay the progress of the mails,
Because from rightful precincts led
To loiter on forbidden rails.
His ears were thrice as long as men’s,
So should his sense of hearing be;
He’d twice as many legs, and hence
The abler accidents to flee.
He had no claim to bell nor whistle;
He had no right that men respect!
If too intent on meal of thistle,
He met the fate he might expect.

This heartless but ingenious plea
Seduced that hasty magistrate,
And this illogical decree
Sustained the corporation’s prate:
“If engineers were held to sound
The whistle or to ring the bell,
The mule conclusively was bound
To listen, stop, and look as well.”
This judgment was pronounced Per Cur.;
No wonder that his Honor should
Anonymity prefer
Where justice was misunderstood.

Such was the Court’s idea of wit
And law to animals applied;
Humaner lawyers, hearing it,
Its relevancy have denied.

When men are walking on the track,
The law presumes that they will heed
The present danger, and step back,
And so to stop the train no need.
Mules have not men’s intelligence,
Are not forewarned by human fears;
And so presumptive evidence
Is not proportioned to their ears.
The whistle might arouse a mule,
And scare him out of danger’s way,
As well as any two-legged fool
Who should in such dilemma stray.
As well might engineer neglect
A man of danger to apprise,
By signals which he might suspect
He was too deaf to recognize.

If mules could read this bitter tale,
They’d wave a sympathetic ear;
With dismal bray the air assail,
And drop a heavy muleteer.

In some horse-heaven, his rest well earned,
This mule with Davies’ donkey *treads;
Their shoes laid off, and collars turned
To glorious halos round their heads.

*The defendent, driving his wagon at a “smartish” pace, negligently drove against and killed the plaintiff’s ass, left fettered by the fore-feet on the highway, and thus unable to get out of the way of the wagon. Held, that, although it was an illegal act on the part of the plaintiff so to fetter the ass on the highway, yet, all the same, the plaintiff was entitled to recover; ABINGER C.B. PARKE, GURNEY and ROLFE, B.B., in Davis vs. Mann, 10 M. & W., 546 (1842).

Wellsboro Agitator (Wellsboro, Pennsylvania) Oct 2, 1891