Page:Harvard Law Review Volume 9.djvu/177

Rh law, to compel a purchaser either to rely upon the uncertain future performance of a seller already in default, or to huy his goods elsewhere at the risk of responding in damages should the original vendor prove prepared to fulfil the remainder of his contract. On the facts of this particular case the dissenting opinion of Van Syckel, J., seems the better view.

— An interesting and only too frequent problem presented to courts for solution is whether a little fellow attracted by an unfastened turntable can recover against a railroad company for negligence, — a question usually depending entirely upon the existence of a duty in the case. In Walsh v. Fitchbuerg R. Co., 39 N. E. R. 1068, reversing Walsh v. Fitchburg R. Co., 28 N. Y. Supp. 1097, the New York Court of Appeals has expressed a strong opinion, almost — decided, - almost, for the case is, perhaps, explainable on other grounds, — that he cannot. This result is, doubtless, in accord with some of the most carefully considered judgments on this point, but is, on the whole, rather against the numerical weight of authority. The latter cases, while not claiming that landowners must furnish safe premises for trespassers, contend that contrivances introduced, liable to allure children, must not be carelessly allowed to become death-traps for the young and unwary. This doctrine, although attempting to distinguish between juvenile and adult trespassers, and easily capable of being made ridiculous by too great an extension, seems fair and just enough if properly limited, as in this connection. There is no endeavor to impose an insurer's liability, only reasonable care of a most dangerous thing is demanded; nor is it hoped that vicious children can be kept away, only those who are unaware of the peril are to be protected. In some jurisdictions, the feeling that parents should be compelled to look out for their infants, and the undoubted practical truth that any recovery by the child would probably inure to the benefit of the careless guardians, have had great weight. In New York, however, where the doctrine of imputed negligence still flourishes, that reason would seem of little force. From the theoretical point of view much can be said on either side, but one cannot but sympathize with the more merciful and less technical rule, the one at which, perhaps unfortunately, the New York court did not arrive

— The doctrine of vice-principal is one whose value, theoretical and practical, may well be doubted; nor do the tests which are used in its application render it more attractive. In Blomqutist v. ''C., M. & St. P. Ry. Co.'' (Supreme Court of Minnesota, Apr. 9, 1895), the difficulty of a satisfactory determination as to when the superior servant is a vice-principal, has lead to a vigorous dissent by Canty, J., in which some novel and interesting principles are laid down. The theory of the learned judge seems to be that the mere authority to hire, discharge, or oversee, is not the correct test, but that the disparity must be more substantial, such as disparity of knowledge or disparity of skill. Although it is, perhaps, impossible in the present state of the law on this subject (8, 57) to judge accurately of the weight which is to be attached to such thoughtful discriminations, yet the careful opinion of Canty, J., is one which cannot profitably be disregarded by any person interested in the development of this doctrine.