Page:The Green Bag (1889–1914), Volume 05.pdf/166

 Rh THE COLOR LINE. — A curious case upon the "color line" is Central Railroad, etc Co. 7>. Strick land, in the Georgia Supreme Court, in which it was held that the damages of a passenger wrongfully expelled from a railroad train are not to be enhanced because of the employment of a colored train-hand in the " bouncing." The court said : — "It cannot be denied that a railroad company, or any oilier person, has the right to employ a colored servant, and may require of such servant the performance of all proper duties which fall within the scope of his employ ment. To establish the contrary of this proposition would lead to consequences utterly absurd and unreasonable, and would result in endless trouble and inconvenience. This is too plain for argument, and consequently there can be no wrong or impropriety in the employment by a railroad company of a colored train-hand; and it is equally appar ent that this train-hand may, if necessary, be called upon by the conductor to assist in ejecting a passenger from the train who has no right to be upon it. If the passenger is lawfully and rightly ejected, he certainly would have no cause of action against the company merely because a colured employe assisted in putting him off. This being triie, the wrongful ejection of a passenger is not aggra vated by the fact that the conductor called upon a colored train-hand for assistance in making such ejection. . . . Hut we do rule distinctly and unequivocally that the race question is not properly involved in such transactions, and that it is unlawful to hold a railroad company liable for greater damages than the amount for which it would be justly liable were the employe aiding in the expulsion of the passenger a man of his own color. In our opinion, therefore, the court erred in refusing to charge the request contained in the tenth ground of the motion. Especially under the circumstances attending the trial of the present case do we think the defendant company was entitled to have the jury instructed as to the law governing its lia bility in this respect. Counsel for the plaintiff in arguing the case before the jury had insisted that his client was entitled to greater damages, because the conductor called upon a 'nigger' employe to aid in pulling him off. In fact, the ' nigger ' did not touch the plaintiff; but the charge requested was specially pertinent in view of the argument, and the refusal of it not improbably worked a hardship on the company."

AN OBITER MULE. — In Marshall v. Dossett, Supreme Court of Arkansas, 20 S. W. Repr, 810, the court thus stated and decided the case, which was replevin by attorneys at law for a mule: — "An attorney who had agreed to defend a prisoner confined in jail, for a stipulated fee, afterwards, and while the relation of attorney and client subsisted, accepted a promise from the client to confer upon him a gratuity, in the form of a mule, in case the attorney succeeded in restoring him to liberty. Such is the jealousy with which the courts guard transactions hetween attorney and client, while that relation exists, that the authorities agree that if the gift had been executed by delivery, when the prom

ise was made under the case found, the client could have revoked it Weeks Ally's, § 364; I Bigelow Frauds, 265; Lecatt 7'. Bailee, 3 Port. (Ala.) 115. But the prom ise to make the gift in this case was not executed. The promise to make a gift of chattels, irrespective of the rela tion of attorney and client, confers no title or right of possession to the property promised, and affords no ground for a remedy against the promisor, by replevin or otherwise."

The latter ground was clearly sufficient, and the former was obiter. We are inclined to think that the gift, if executed, would have been revocable on the ground that it was against public policy not to leave the prisoner a mule on which to get out of the State. ROLLING HOOP. — The Supreme Court of Wis consin, in Reed v. City of Madison, 53 N. W. Rep. 547, hold that a child injured by a defect in a side walk is not debarred from recovery because she was rolling hoop at the time. This was put on the ground that she is notwithstanding a " traveller." The court said : — "A person passing from place to place on a sidewalk is a traveller thereon. He is going somewhere. It makes no difference whether it is for business or for pleasure, or merely to gratify an idle curiosity. Chicago v. Keefe, 114 Ill. 222. It is not unlawful, wrong, or negligent for children to play on the sidewalk. McGarry v. I.oomis, 63 N. Y. 104; s. C. 20 Am. Rep. 510. The plaintiff was travelling on the sidewalk to go to a certain place to meet her playmates, and while so travelling she followed her hoop, which she guided before her. The hoop accelerated her travelling, and made it a pleasure. The following and guiding her hoop did not make her any the less a traveller. She did not stop to play with her hoop on the sidewalk, and the playing with her hoop did not divert her from going straight on toward her destination. She was a ' traveller ' in the strictest sense of the word. The rolling of her hoop before her was not per se negligence; but the jury may consider that fact on the question, and as to whether it contributed to produce the injury. Sutton v. Wauwatosa, 29 Wis. 21; s. c. 9 Am. Rep. 534; Kunz v. City of Troy, 104 N. Y. 344; s. c. 58 Am. Rep. 508. See other cases cited in appellant's brief. Every case must be decided on its own facts. We hold only that in this case the rolling of the hoop was not inconsistent with the plaintiff being at the same time a traveller on the sidewalk. It is natural for a child to play, early and late, at home and abroad, going and coming, and everywhere. Because it plays on its travels on the sidewalk it should not be declared an outlaw, or excluded from the usual remedies of the law. This seems to be a very plain case, both by reason and authority, that this little girl was a traveller on the walk when injured by reason of its defective condition."

Whether this would apply if the child had been injured at a game of tag, or while selling newspapers, might be doubtful. How would it have been held if she had been skipping rope?