Page:Harvard Law Review Volume 5.djvu/110

94 94 HARVARD LAW REVIEW. is continuing at the time of the injury suffered, it is so in one of two ways : it is either concurrent with that of the defendant as an active cause in pro- ducing the result — in which case the plaintiff will be barred ; or it is continuing in the sense of being a condition of the dangerous situation — in which case the defendant's act will be considered as the legal cause of the injury, and the plaintiff will not be barred. The negligence of the plaintiff does not absolve the defendant from his duty of care. In the language of Carpenter, J., in Company v. Railroad, 62 N. H. 164.: "If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter is incuria, but not incuria dans locum injuriae — it is the cause of the danger; the former is the cause of the injury." It is not claimed that this test — namely, fixing the liability on the last human wrong-doer — will reconcile all authorities, yet it is claimed that it will reconcile more than any other test suggested. RECENT CASES. [These cases are selected from the current English and American decisions not yet regularly reported, for the purpose of giving the latest and most progressive work of the court. No pains are spared in selecting all the cases, comparatively few in number, which disclose the general prog- ress and tendencies of the law. When such cases are particularly suggestive, comments and refer- ences are added, if practicable.] Agency — Employer's Liability Act — Contract in Contravention of.— Code Ala. § 2590, subd. 5, makes an employer liable to an employee for personal inju- ries resulting from the negligence of any person in the employer's service, who has charge or control of any engine, car, or train upon a railroad. Held, that a provision in a contract between a railroad company and a switchman, whereby the regular wages paid the latter were to cover all risks and liability to accident from every cause, and the right to damages was not to be recognized, was " in contravention of the statutory pro- visions, opposed to public policv," and void. Hissong v. Richmond cV D. R. Co., 8 So. Rep. 776 (Ala.). An opposite view of such a contract was taken in England, Griffiths v. Earl of Dudley, L. R. 9 Q. B. Div. 357. But see Baddeley v. Earl of Granville, L. R. 19 Q. B. Div. 423. In this country, in those States where it is not settled by statute, both views find support. Agency — Intoxicating Liquors — Sale by Agent. — One who unlawfully sells liquor, as clerk or agent for a wholesale liquor-dealer, without a license, may be convicted of carrying on the business of a wholesale liquor-dealer without a license, though he has no pecuniary interest other than as agent or clerk. Abel v. State, 8 So. Rep. 760 (Ala.). Bills and Notes. — One S obtained by fraud a United States postal money-order payable to A or order. He forged the indorsement of A upon it, and obtained payment from the post-office, in the form of a check payable to A or order, drawn by the United States upon the defendant bank. The post-office clerk was not negligent in paying S, as the latter had fraudulently contrived to get several reputable persons to identify him as A. S took the check to the defendant bank, indorsed it in the name of A. was iden- tified by the same persons as before, and received payment. The United States, on discovery of the fraud, paid the amount of the order to A, and brought action against the bank for the money paid by it upon the check. Held, that the plaintiff could not