504
Men intrusted with such powers are quite apt to be come impracticable purists and, as Mr. Comstock would deprive the world of a great deal of good litera ture because he thinks it diseased and demoralizing, so these wise men would so grow so conservative — conceding that by chance they should agree in any particular case — that they would bring the country to a standstill in this class of production. Law is quite uncertain enough, but medicine is even more uncertain.
NOTES OF CASES. Too MUCH SENTIMKXTALITY. — It is not often that a new trial is awarded on account of excess of sentimentality on the part of the judge, but it was done in Last Chance Mining & M. Co. v. Ames, 23 Colo. 167. This was an action by an employee against his employer for a personal injury by defective machinery. In respect to the amount of care requi site on the part of the master, the court charged that it must be such as an ordinarily prudent man would exercise having regard for his own safety " and the safety of those nearest and dearest to him." The words quoted spoiled the verdict. Such men are extraordinarily prudent.
PROXIMATE CAUSE. — A very singular case of the application of the doctrine of proximate cause is Wood v. Penn. R. Co., 177 Pa. St. 306; 35 L. R. A. 199, where it was held that failure to give warning of the approach of a fast train which strikes and kills a woman at ä crossing near a depot, and hurls her body against a man standing on a station platform, is not the proximate cause of an injury to the latter, and does not make the company liable for such injury. The court relied much on Hoag -v. Lake Shore, etc., R. Co., 85 Pa. 81.293; 27 Am. Rep. 653, where an oil train was thrown from the track by a recent landslide, and the tanks bursting, the oil was ignited, ran down into a neighboring creek, swollen by recent rains and, flowing down the creek, fired the plaintift's buildings, three or four hundred feet distant; and the damage was held too remote. In the present case the Court said : "But does anyone believe the natural and probable con sequence of standing fifty feet from a crossing, to the one side of a railroad, when a train is approaching, either with or without warning, is death or injury? Do not the most prudent, as well as the public generally, all over the land, do just this thing every day, without fear of danger? The
crowded platforms and grounds of railroad stations, gener ally located at crossings, alongside of approaching, depart ing and swiftly passing trains, prove that the public, from experience and observation, do not, in that situation, fore see any danger from trains. They are there because, in their judgment, although it is possible a train may strike an object, animate or inanimate, on the track, and hurl it against them, such a consequence is so highly improbable that it suggests no sense of danger. They feel as secure as if in their homes. To them it is no more probable than that a train at that point will jump the track and run over them. If such a consequence as here resulted was not natural, probable or foreseeable to anybody else, should de fendant, under the rule laid down in Hoag v. Lake Shore & M. S. R. Co., be chargeable with the consequence? Clearly it was not the natural and probable consequence of its neglect to give warning, and therefore was not one which it was bound to foresee. The injury, at most, was remotely possible, as distinguished from the natural and probable consequences of the neglect to give warning."
"PERSON."— A man's trousers, folded and placed under his pillow while he is asleep, are not a part of his " person," within the statute of larceny. People 7'. McElroy, California Supreme Court, April. 1897. liut a man's " pants are a part of his " person or property," within a statute as to injuries by dogs. Schaller v. Conners, 57 Wis. 321. Probably not so of the clog's pants. In the latter case the plaintiff sued for fifteen dollars, of which he alleged three dol lars and a half was for the "pants." The defend ant alleged tender of fifty cents, which was paid into court. The plaintiff recovered one dollar and a half before a justice of the peace. This was affirmed in the circuit, and again in the Supreme Court. De cidedly a case de mininas. The court agreed with counsel that no appeal ever should have been taken, but inasmuch as the appeals seemed to have been in good faith, declined to award double costs by way of punishment. One is curious to know how the justice of the peace divided the damage between jjerson and pants. There have been some amusing legal defini tions of " person." An Indian, a judge, an infant and a woman have been adjudged to be persons; but not so of a dog or a colt. A clog is not personal goods (State v. Doe, 79 Ind. 9; 41 Am. Rep. 599). The birth of a child is not a "personal transaction" between him and his mother, so as to exclude her from testifying as to the time (Will v. Paige. 6 Alb. L. Journ. 126). And it has several times been ad judged that improper conduct of a husband toward another woman is not a " personal indignity " toward the wife.
