344
Standing Referees. — Mr. Fiero, the late pres ident of the New York State Bar Association, has devised an expedient to help the judges out with their arrears. It is to have a certain number of standing referees, to whom causes shall be sent for hearing and decision. If we are correctly informed, the proposal is to have the judges who go out of office at seventy years of age — presumably because they are no longer fit to discharge judicial duties — form this body, or part of it, and thus do something towa[d earning their pensions. The office would much resemble that of master in chancery, which was vehemently discarded in that State nearly half a century ago. There is probably little danger of the adoption of this scheme, but somehow we are re minded of it by a passage in an article on " Lord Wardens of the Cinque Ports," in the "Pall Mall Magazine" for last month. The passage is as follows : — "On re-entering Westminster Hall, the barons found it transformed into a banqueting hall, with their table duly set on the right hand of the King. They were properly indignant at finding one of their fifteen chairs occupied by a stranger. In answer to inquiries, he said he was a Master in Chancery, and not finding a seat specially assigned to him, had appropriated one at the table. The barons, who had had nothing to eat since five o'clock in the morning, politely, but firmly, called his attention to the fact that each chair had painted on its back ' Barons of the Cinque Ports.' The Master in Chancery said he didn't care. He'd been asked to dinner, and he'd come. The sequel is modestly told in the report, where it is written :
- The solicitors were compelled to exercise a considerable
degree of firmness and decision before they could displace him.'" We hope the State will not find equal difficulty in keeping the ancient judges out of the old seats. Judge Herrick, of Albany, presents to the constitu tional convention the proposal to employ the super annuated judges as a court for the disposal of disputed election cases. This is subject to the same evident objection that if the judge is presumably unfit by reason of age to act generally, he must be unfit to act at all in a judicial capacity. If we are driven to it, we may have to dispose of these troublesome per sons according to the ancient custom of Crete in respect to very old people — kill them!
NOTES OF CASES. Imputed Negligence. — The Supreme Court of Michigan, in Mullen v. City of Owosso (April 17, 1894), hold that where the owner of the carriage, with whom plaintiff was riding, carelessly drove over a pile of sand in the street, with full knowledge of the obstruction, at a rate of speed not allowed by
ordinance, — overturning the carriage, and causing the injuries complained of, — the city was not liable. McGrath, C.J., and Hooker, J., dissenting. This is held upon the authority of Railroad Co. v. Miller, 25 Mich. 274. The decision is contrary to the law of England, and of every other state of the Union, we believe, except Wisconsin. See 37 Am. Rep. note, 488. It is also contrary to the doctrine of the Su preme Court of the United States, Little v. Hackett, 116 U.S. 366. It is somewhat singular that the Michigan court should cleave to the old Eng lish doctrine of Thorogood v. Bryan, now discarded in England (The Bernia, 12 Pr. Div. 58; Mills v. Armstrong, 13 App. Cas. 1), and yet should refuse to impute the negligence of parent to child in an action by the child, contrary to the doctrine of New York in Hartfeld v. Roper, 21 Wend. 617. We believe the doctrine of that case, as well as that of the prin cipal case, to be insupportable in reason. A writer in 38 Cent. ^.J. 432, doubts that the doctrine of the principal case is really supported by the Miller
Damages — Remote — Insanity. — In Haile's Curator v. Texas & P. R'y Co., United States Circuit Court of Appeals (60 Fed. Rep. 557), it was held that where a passenger on a railroad train receives no bodily injury from an accident caused by the com pany's negligence, but is made insane by the excite ment, hardship and suffering resulting therefrom, the company is not liable in damages therefor, since in sanity is not a probable or ordinary result of exposure to a railroad accident. The Court said : — "While the defendant, as a common carrier, had reason to anticipate that an accident would cause physical injury and would produce fright and excitement, it had no reason to anticipate that the latter would result in permanent in jury, as a disease of the mind, or any other disease that might be caused by excitement, exposure and hardship sometimes incident to travel. If the disease was not likely to result from the accident, and was not one which the de fendant could have reasonably foreseen in the light of the attending circumstances, then the accident was not the proximate cause. The defendant had no reason to antici pate that the result of an accident on its road would so operate on Haile's mind as to produce disease — the disease of insanity — any more than that the exposure and hard ships he suffered, would produce grippe, pneumonia or any other disease. He sustained no bodily injury by the acci dent so far as the petition shows; but it caused a shock and an excitement which, under his peculiar mental and physical condition at the time, resulted in his insanity. The defendant owed him the duty to carry him safely — not to injure his person by force or violence. It owed him no duty to protect him from fright, excitement or from any hardship that he might subsequently suffer because of the unfortunate accident. The case of Schaffer v. Railroad Co.
