misdemeanor, under the ordinance of the city of Ft. Worth, for leaving his horse in the street without a com petent person to take charge of him. The jury might have found that the appellee, being in the wagon, was in charge of him himself, or they might have found the deafmute boy, being on the seat of the wagon, was competent to take charge of him. The horse did not run away. The ordinance shows that its purpose is to make owners of horses left in the street without some competent person to take charge of them responsible for all damages caused by the horses running away, and to punish the act as a misdemeanor, in the interest of the public as a police regulation."
THE RESTLESS SMALL BOY. — In Catlett v. St. Louis, I. M. & S. Ry. Co., Supreme Court of Arkansas, 21 S. W. Rep. 1062, it was held not neg ligence for a railroad company to omit to keep a lookout to prevent boys from swinging on the lad ders of its slowly moving freight-trains. The court said : — "A railway company is not bound to keep a lookout to prevent boys from swinging on the ladders of its moving freight-trains; and its failure to do so is not negligence. Bishop v. Railway Co., 14 R. I. 314; Railway Co. v. Stumps, 69 Ill. 409; Railway Co. v. Ledbetter, 45 Ark. 246; Railway Co. v. Connell, 88 Pa. St. 520. If boys have stolen rides in that way at a given point, without remonstrance from the company's train-men, that fact does not amount to an invitation to do so on another occasion. The boy who attempts it is a trespasser, and the company owes him no duty save not to injure him wantonly. Daniels v. Railway Co. (Mass.), 28 N. E. Rep. 283;! Morrissey v. Railway Co., 126 Mass. 377; Wright v. Railway Co. 142 Mass. 296; Rodgers v. Lees, 140 Pa. St. 475, and cases cited; Shelton v. Railway Co., 60 Mo. 412; Duff v. Railway Co., 91 Pa. St. 458; Railway Co. v. Smith, 46 Mich. 504. The appellant argues that a slowly moving train is ' dangerous machinery,' alluring to boys; and that it is therefore negligent of the company to fail to take precaution to keep them off such trains. That is the argument made to sustain a class of cases known as the ' Turn-table Cases,' the leading one of which is Railway Co. v. Stout, 17 Wall. 657. The doctrine of those cases has been much criticised and doubted, and by some courts repudiated. See Daniels v. Railway Co. (Mass.), 28 N. E. Rep. 283; Patt. Ry. Ace. Law, § 196. Whatever its merits may be, it has never been extended to such length as to control a case like this. See Bishop v. Railway Co., 14 R. I. 314; Shelton v. Railway Co., 60 Mo. 412. The youth of the person injured will sometimes excuse him from concurring negligence, but no amount of youthful recklessness can supply the place of proof of negligence on the part of a defendant sought to be charged on account of negligence. Patt. Ry. Ace. Law, § 75."
WHAT is A "CHILD"?— In Quinlen v. Welch, decided last month by the Supreme Court of New 1 See " The Siren Turn-Table," 4 Green Kag, 124.
York, it was held that under the Civil Damage Act, which gives a right of action to any husband, wife, or child, for injury in person, property, or means of sup port in consequence of the intoxication of any person, against the seller of the intoxicants or the lessor of the premises where they were sold, an action may be maintained by a child en ventre sa mere at the time of the injury and subsequently born alive. In this case the father became intoxicated, wandered on a railway, and was killed by a train; the child was born alive the next day. Haight, J., in a very well reasoned opinion, showed by ample authority that a child en ventre sa mere has many civil rights in re spect to estates, and in The George and Richard. L. R. 3 Adm. 465, it was held that such a child, if born alive, would be entitled to damages under Lord Campbell's Act, against the ship-owners for the death of the father produced by a collision, and consequent loss of support. The case of Walker v. Gt. Northern R. Co., 21 Irish L. R. 69; 26 Am. Law Rev. 50; 43 Albany Law Journal, 464, where it was held that such a child could not recover damages against the carrier for an injury to its person in transportation while en ventre sa mere, was distinguished on the ground that the company contracted only to carry the mother and was not liable for the injury to her freight; or as Judge Haight puts it, " that while the company must be regarded as the common carrier of the mother, under the law of the Emerald Isle, as understood by the court, the mother was the common carrier of her un born child." That decision is clearly not in conflict with the present, nor with that in the admiralty case. The four judges of the court concurred. We see no satisfactory answer to the position of the court that the action is maintainable because "an unborn child, subsequently born alive, if deprived of a parent suf fers in its means of support equally with the children that were living at the time of the decease of such parent." Certainly if an unborn child can at birth take a benefit by will, there is no reason why it can not enforce a benefit under a statute.
A SAD Loss. — Lang 7'. Pennsylvania R. Co., 26 Atlantic Rep. 570, Supreme Court of Pennsyl vania, is calculated to strike horror to a Kentuckian's heart. Freight-cars loaded with whisky, having been stopped by a flood, were attacked and broken into by thieves, and part of the whisky was taken. The conductor and train-men were present, but left, and made no effort to protect the property. A body of citizens drove the thieves away, and guarded the cars until the next morning, when, to keep it from falling into the hands of the mob, they destroyed the rest of the whisky. Held, that as the employes aban doned the whisky, and made no effort to protect it. the carrier was liable for its loss. The loss did not
