permission or license, express or implied, and is injured by using a defective elevator intended for freight and not for passengers. Although not a trespasser, he is a mere naked licensee, to whom no duty is due except that of not willfully injuring him.
Obligation to Accept Office. — An entirely new question in this country is decided in People v . Williams, 145 Illinois, 573; 36 Am. St. Rep. 514, namely, that mandamus lies to compel acceptance of a municipal office after election or appointment, by one who is qualified but refuses, although the statute imposed a penalty for non-acceptance. Such appears to be the common law rule in England, as is shown by the citations in the opinion. The Court observe : — "Under our form of government the principle applies with even greater force than under a monarchy. In a republic the power rests in the people, to be expressed only in the forms of law. And if the duty, preservative of the common welfare, is disregarded, society may suffer great inconvenience and loss, before, through the methods of legislation, the evil can be corrected. Upon a refusal of officers to perform their functions, effective govern ment, pro tanto, ceases. All citizens owe the duty of aiding in carrying on the civil departments of government. In civilized and enlightened society men are not absolutely free. The burden of government must be borne as a contribution by the citizens in return for the protection afforded. The sovereign, subject only to self-imposed re strictions and limitations, may in right of eminent domain take the property of the citizen for public use. He is required to serve on juries, to attend as witness, and without compensation, is required to join the posse comilatus at the command of the representative of the sovereign power. He may be required to do military service at the will of the sovereign power. These are examples where private right and convenience must yield to the public welfare and necessity. It is essential to the public welfare, necessary to the preservation of government that public affairs be properly administered; and for this purpose civil officers are chosen, and their duties prescribed by law. A political organization must necessarily be defective which provides no adequate means to compel the obvious duty of the citizen, chosen to office, to enter upon and discharge the public duty imposed by its laws, and necessary to the exercise of the functions of government." "But how if he will not stand? "'
Infant's Negligence. — All the courts, except the Massachusetts, seem to have the tenderness of nursing mothers towards infants, and speak grievously towards adults who put dangers in their way, and palliate the natural curiosity of the young for med dling with attractive things. This is especially mani fested in the turntable cases, and in like manner
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infants have been excused for undue familiarity with dogs to whom they have not been introduced, and sometimes for wandering in by and forbidden paths. And so on the other hand, adults have been charged with the unpleasant results of selling or otherwise furnishing them with dangerous articles, like guns. A recent exemplification of this judicial tenderness is found in Haynes v. Raleigh Gas Co., decided in the Supreme Court of North Carolina in April, 1894 (19 S. E. R., 344), in which it was held that it was not contributory negligence for an intelligent boy, ten years old, when walking along the sidewalk, to grasp a guy wire hanging from an electric light pole to the ground, there being nothing to indicate that it was charged with electricity. The Court said : — "A child is held to such care and prudence as is usual among children of his age and capacity (Murray v. Rail road, 93 N.C., 92). The defendant contends that the deceased was ten years of age, ' a very healthy, intelligent moral and industrious boy.' Let us assume this to be true. As he returned to his home the morning of his death, passing along the streets of the city, he was tres passing on no one's property. He was walking where he had a right to walk, not by mere permission or invitation, but because he, as one of the public, had an absolute right so to do. The wire was on the sidewalk. Only one witness saw him when ' he took hold of the wire, and the wire threw him in the ditch.' That witness testified that ' he did not have to reach for it. He just reached out his hand and took it. He did not have to stoop.' No witness testified that there was anything from which even an adult could have inferred that this wire was carrying a deadly current of electricity, or indeed any current at all. True, the witness who saw him grasp the wire, when he came to his rescue, saw the fiery indications of the passing of the current from the wire to his hand, and several witnesses deposed, that, after the accident and the throw ing of the wire into a yard where there was wet grass, they noted that the wire was * steaming ' at the point where one of its coils touched the sidewalk, and also at its extremity in the yard. Grant this to be true, and yet there is not, as it seems to us, any evidence that it was steaming when the deceased caught the wire, or if it was, that its steaming was such as to carry, to a boy passing along, a warning that he must not touch it. We should be very loth to declare an adult guilty of negligence for grasping a wire such as this one under circumstances such as the defendant contends surrounded the deceased. We cer tainly cannot declare that this hoy, whose conduct must be judged with due regard for his boyish nature and habits, negligently caused his own death. The instruction that
- upon the evidence the plaintiffs intestate was not guilty
of contributory negligence* should have been given." The only doubt here seems to be whether contribu tory negligence was not a question of fact. A jury might well be justified in saying that the boy was not negligent, but can it be assumed, as matter of law, that he was not? But women and small boys are very powerful in courts of justice.
