by drowning herself, or at least had been guilty of contributory negligence. The de ceased was last seen leaving Elsinore in the direction of defendant's estate. The only direct evidence as to the manner of her death is that of Gertrude, Queen of Den mark, who testified as follows : — "There is a willow grows aslant a brook, That shows his hoary leaves in the glassy stream; There, with fantastic garlands did she come, Of crow-flowers, nettles, daisies and long purples, That liberal shepherds give a grosser name, But our cold maids do dead men's fingers call them; There, on the pendent boughs her coronet weeds Clambering to hang, an envious sliver broke, When down her weedy trophies and herself, Fell in the weeping brook. Her clothes spread wide, And mermaid-like, awhile they bore her up; but long it could not be, Till that her garments, heavy with their drink, Pulled the poor wretch from her melodious lay To muddy death." Meagre as this account is, the greater por tion of it is clearly irrelevant, and might well have been objected to in the court below. However, such as it is, it is absolutely un contradicted, and must be taken as verity. It therefore appears that deceased came to her death by the breaking of an " envious sliver," and not by her own premeditated act. If the " envious sliver " had been above dry ground, this could not have happened; and we are therefore clearly of opinion that it was gross negligence in the defendant to leave a sliver of that notoriously bad charac ter in such a position. There is no evidence that the sliver was acting outside the scope of his ordinary employment, and no question of the constitutionality of the act of the sliver has been raised. The finding of the crowner's quest casts no light on the subject. Following the growing disposition of such bodies, they have found many facts of general interest, but have neglected to find by what means the deceased came to her death. The case principally relied on by defend
ant in error is that of Fisher v. Pennsylvania Railroad Co., 126 Penn. St. 293. The facts in that case are as follows : The action was brought to recover damages against de fendant company for the killing of a mule. The mule was returning from his daily toil, and in attempting to cross defendant's track was struck by one of defendant's engines and killed. The court, in a per curiam opin ion, say : " The mule was killed upon the track by one of the defendant's locomotives. The alleged negligence of the company con sisted in not ringing the bell or sounding the whistle as the engine approached the crossing near which the mule was killed. If it was the duty of the engineer to blow the whistle as notice to the mule, I do not see why the mule should not be held to the rule to ' stop, look, and listen.' " The action of the court below in granting a compulsory nonsuit was affirmed. It was most earnestly urged in the argu ment that the above case rules the one now under consideration. Mr. Dickey pressed the point with great eloquence that ladies are not ordinarily more stubborn than mules, and are really more intelligent, and should therefore be strictly held to as high a degree of care. This argument is ingenious rather than sound. The cases can be readily dis tinguished. We will admit, for the sake of argument, that ladies are not usually more infatuated with their own intentions than mutes. But the mule is both by nature and habit peculiarly adapted to an easy compli ance with at least two of the requisites of the rule. Nature never does a vain thing; and if the unusual development of the auric ular appendages and the inborn and ineradi cable disposition to stop were not implanted in the mule by a kind providence, with pro phetic reference to this very rule, I am at a loss to account for extraordinary faculties otherwise so prodigally wasted in the ordi nary routine of the domestic life of a mule. Again, the law no more than nature insists on vain things. If an act could do no good, the law mercifully dispenses
