Smith was a type-founder, and desired also to found a monument to his memory, that should be talked about. So he bequeathed half a million dollars to build a " monumental memorial" in Fairmont Park, Philadelphia, to include bronze equestrian statues of Generals McClellan and Hancock, colossal bronze statues of Generals Meade and Reynolds, bronze busts of Governors Curtin and Hartranft, Admirals Porter and Dahlgren, Generals Beaver and Crawford, the architect and the executor. Also a bronze statue of himself, "with the name Richard Smith, in large letters." Also a mural bronze tablet inscribed in a prescribed manner, including the name of Richard Smith. The court held this a valid char ity, and that it was not impaired by the provisions for the donor's statue, etc. It strikes us that Mr. Smith would have done better to build or endow a hospital for the sick, or an asylum for the needy — something that should do good to poor humanity and not simply minister to the cultivated artistic sense, or stir patriotic impulses. Much more discreet was the bequest of $50,000 for a children's play ground and play-house in the same park, including appliances for sickness. The contestant was only a half brother of Mr. Smith.
Knowledge of Infants.— A curious case con cerning the amount of knowledge to be attributed to children is Graney v. St. Louis, etc. Ry. Co. (Mo.), 38 L. R. A., 633, where it was held that the negli gence of a boy twelve years old in standing so near a passing train that he is drawn under it by a current of air is a question for the jury, and cannot be de clared as a matter of law. The court said : "The question then is, whether, in the circumstances under which the boy met his death, we can declare, as a matter of law, that he was guilty of contributory negligence. In order to declare this, as a conclusion of law, we must presume from his age alone that he was capable of under standing the danger to which he exposed himself. It has been held that a boy between eleven and twelve years of age will be presumed to know the danger he incurs in go ing upon a railroad track immediately in front of a running train. Masser v. Chicago, R. I. & P. R. Co. 68 Iowa, 602; Tucker v. New York C. & H. R. R. Co. 124 N. Y. 308. But the capacity to know and the ability to avoid danger are generally to be determined by the character of the danger, and the precaution necessary to be taken in order to avoid it. While a boy twelve years of age may well be presumed to know the obvious danger of going upon a railroad track before a running train, he might not have knowledge of the danger of standing so near the track while a train is passing. We do not think it conclusively appears from the mere evidence of the age of deceased that his knowledge was sufficient to justify the court in de claring, as a matter of law, that he knew of the danger of his negligent act, and the jury was properly left to determine
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whether, in the circumstances, contributory negligence should be imputed to him." This would seem to be an obviously correct con clusion, and yet three of the four judges constituting the court dissented. Late numbers of the " Harvard Law Review " and the "American Law Review " con tain articles on the responsibility of landowners for the condition of their premises in respect to intruding infants attracted by some alluring object.
Docs. — Whether dogs are " property " is a ques tion that has been variously decided. Anyone who is curious on the point may find the principal decis ions arrayed in 9 English Ruling Cases, 687. Just now the trend of decisions, which in this country has been inclined against the dog, gets a shunt the other way in St. Louis & C. R. R. Co. v. Stanfield, 63 Ark. 643; 37 L. R. A., 659, when the court unhesitatingly assert, ■ ■ dogs are property," and hold that a railroad company is liable for negligently killing one. The court continues : — "As was said by the Supreme Court of New York : ' Large amounts of money are now invested in dogs, and they are largely the subjects of trade and traffic. In many ways they are put to useful service, and so far as pertains to their ownership as personal property, they possess all the attributes of other personal property.' Mullaly v. People, 86 N. Y. 365. Much learning, ancient and modern, may be found in the books, more entertaining than useful, upon the question as to whether dogs are the subject of larceny. At the common law they were not so regarded, for the reason, as assigned by Mr. Blackstone, that they do not serve for food, have no intrinsic value, and are kept for the whim and pleasure of their owners. 4 Bl. Com. 235; 2 Bl. Com. 393. Following the common law in this respect the Supreme Court of Georgia held in Jemison v. South western R. R. Co. 75 Ga. 444, 58 Am. Rep. 476, that railroads are not liable for the negligent killing of dogs. See also Wilson v. Wilmington & M. R. R. Co. 10 Rich. L. 52. But the common law rule, even in cases of larceny, is extremely technical, and has no sound basis to rest upon. Mullaly v. People, 86 N. Y. 365. Except in cases of larceny, how ever, the dog was property at the common law, and the owner had his remedy by civil action for the loss or de struction of same. 4 Bl. Com. 236. Such is the general doctrine in America. Harrington v. Miles, 11 Kan. 481, 15 Am. Rep. 355, and authorities cited. Moreover under our statutes, and the decision of this court in Haywood v. State, 41 Ark. 479, it is evident that the doctrine of the common law as to the larceny of dogs could have no place. Sandels & H. Dig. §§ 1694-1698. We are unwilling to ex tend a doctrine, archaic and unsound even in criminal cases to civil cases having no analogy. The statute makes no exception as to dogs, and we can make none. We find but few adjudications upon the question, and none with facts exactly'similar. The Supreme Court of Texas supports our view in St. Louis, A. & T. R. R. Co. v. Hawks, 78 Tex. 300, 11 L. R. A. 385. See also 3 Elliot, Railroads, § 1190;
