Page:The Green Bag (1889–1914), Volume 05.pdf/419

frightened him. I say if he do it, it would kill him, kill "Assuming that there was evidence for the jury of him right off. ... He always wanted to play the part of defendant's negligence in leaving the cars in the street as the villain in his play. He was to abduct the banker's it did (see Powell v. Devenev, 3 Cush. 300), we then come daughter, and kill the banker, get his money, and escape. to the question whether plaintiff's intestate is to be He was supposed to be hired by another to do this. He regarded as a trespasser, and joint actor with the other children. If he is, then the question whether he was in also attempted to create a new language, somewhat like the Volapuk, only better and easier. With this new the exercise of due care becomes immaterial. His wrong language he was to communicate with the devil. Q. — Is doing as a trespasser and joint actor would, in such event, this the language? [Exhibits B and C.] A. — Yes; be a cause contributing to the injury, though in doing what he did he might be doing no more than would nat that is the A, B, C. He said he would go to the grave urally be expected from a child of his age. We think he yard at night, and talk to the devil. . . . When he was must be regarded as a trespasser and joint actor with the acting his play, he had weapons and false beard that he other children. Leaving the cars in the street as it did would put on and take off at times. . . . He had two was not an invitation or license by the defendant to him large sheets, with three circular rings on them, and many to play upon them, even though defendant knew that strange figures, letters, signs, and crosses. With these things he said he would go the graveyard, and by their they were calculated to attract children, and did in fact attract them. Knowledge on the defendant's part that aid he would force the devil to appear. The devil was to they attracted children was not an invitation or license to make him large, take all the pimples and blotches off his them; otherwise, the fact that one knowingly maintained face; also he would receive great power, and a horse with which he could fly in the air. All he had to do was • on his own premises an object that allured children would constitute an invitation to them. Nor could an invitation to stamp on the ground and a big horse would appear, or license be implied from the negligence of the defendant, one that he could ride a mile a second on He always if there was negligence, in leaving the cars in the street. had these notions, even when he was little." The most that can be said for the plaintiff is that the It would however seem a great pity to hang so defendant, knowing that the car« would be and were versatile and imaginative a person. attractive to children, was bound to anticipate what actu ally occurred, and to exercise a corresponding degree of NEGLIGENCE IK A RJGHT LINE. — It seems to care to see that the cars were securely fastened and be thought in some courts that although an infant guarded, and is liable for an injury occurring to the plaintiffs intestate through its failure to do so. This may not be negligent in playing on a railway con assumes that all that the plaintiff is required to show is trivance that goes in a circle, yet he is negligent in that his intestate acted as reasonably as might be expected playing on one that goes in a straight line. It is not of him. Hut he might do that, and still be a wrongdoer so "enticing." But the Massachusetts court makes and trespasser, and contribute by his conduct to the injury no allowance for difference in direction. In Gay v. which he received. If he did, then the fact of his youth, and the fact that the defendant's negligence also contrib Essex Electric St. Ry. Co. (Mass.), 34 N. E. Rep 186, it was held that a street-car company that leaves uted to it, wouid not render the defendant liable. If the its cars standing in the public street, with unfastened cars had been set in motion by other children, and the brakes, contrary to a city ordinance, knowing that plaintiffs intestate had been injured by them while law the cars would be likely to attract children, is not fully upon the highway, the defendant clearly would have liable for injuries, caused by the Hying back of a been liable. Lane v. Atlantic Works, supra. But he was using the highway and the cars for play, and was a brake, to a ten-year old boy who goes upon the cars joint actor with other children in causing that to happen to play. The court said : — which resulted in his injury. We might fairlv assume, if it were necessary, that a boy ten years of age. and of ordi "If the cars had been left standing by the defendant on nary intelligence, would know that he had no right to its own premises, near the highway, in the same condition play upon cars which a street-railway company had left in which they were left standing on the street, it is clear, standing in the streets. Upon the declaration, as we under the decisions of this court, that however attractive interpret it, we do not think that under the decisions in they might have been to children, if the plaintiff's intes this State the plaintiff is entitled to recover. See cases, tate had been injured by them while at play upon them, supra; also McAlpin v. Powell, 70 N. Y. 126. It is pos he would have been a trespasser, and the defendant sible a different result might be reached in the English would not have been liable. Daniels -: Railroad Co., courts, though the law does not seem to be finally settled 154 Mass. 349; McEachern v. Railroad Co, 150 Mass. there (Lynch v. Nurdin, I Adol. & E. [N. s.] 29; Hughes 515; Morrissey v. Railroad Co., 126 Mass. 377; Lane v. v. Macfie, 2 Hurl. & C. 744; Mangan v. Atterton, L. R. Atlantic Works, 107 Mass. 104, in Mass. 136. In such i Exch. 239; Clark v. Chambers. 3 Q. B. Div. 327), or a case the only duty which the defendant would have in other courts in this country (Railroad Co. v. Stout, 17 owed him would have been not to injure him wantonly, or Wall. 657; Keffe v. Railway Co., 21 Minn. 209; Railway by conduct recklessly careless on its part. Daniels v. Co. v. Fiusimmons, 22 Kan. 686)." Railroad Co., supra; Morrissey -'. Railroad Co., supra.