Page:The Green Bag (1889–1914), Volume 06.pdf/174

 Rh •• noises disturbing the peace of the day." The whole section is evidently aimed at acts and occupa tions of a character calculated to disturb the peace of the day. If the publicity is not essential, pray why was the word " public " inserted? Why was not the enactment simply against the things named, "or other sport"? This would conclusively have em braced the acts when privately done as well as when public. If this is not the proper construction, a man would be a misdemenant for playing " penny-anti" in the privacy of his household on Sunday. It may well be doubted that such a construction as the court have made is constitutional. If we should grant that it is not necessary that the acts (except noises) should be disturbing to the public peace, at least they must be public, — publicly conducted, publicly visible. We regret a decision that marks a backward step, and puts the State on a level of puritanic narrowness with Massachusetts whose courts sent a poor shoemaker to prison for hoeing a few hills of corn in his dooryard early on Sunday night, and sent a farmer to prison for gathering seaweed on a lonely beach at 10 o'clock on Sunday night. Set us down, not as a Puritan, but as a dissenter, in this case.

Negligence — Infancy —Trespass. — In Gay v. Essex St. Ry. Co., Massachusetts Supreme Judicial Court (21 Lawy. Rep. Ann. 448), it was held that leaving street-cars in the street is not an invitation or license to children to play upon them, even though the street-car company knows that they attract children, and that the youth of a wrongdoer and tres passer, although he acted as reasonably as might be expected of him, if his conduct contributes to an in jury which he receives, will not prevent his contrib utory negligence from constituting a defense to a person whose negligence also contributed to the in jury. The Court said : — "Assuming that there was evidence for the jury of defend ant's negligence in leaving the cars in the street as it did (see Powell v. Deveney, 3 Cush. 300, 50 Bm. Dec. 738), we then come to the question whether plaintiff's intestate is to be regarded as a trespasser and joint actor with the other children. If he is, then the question whether he was in the exercise of due care becomes immaterial. His wrong doing as a trespasser and joint actor would, in such event, be a cause contributing to the injury, though in doing what he did he might be doing no more than would naturally be expected from a cliild of his age. We think he must be regarded as a trespasser and joint actor with the other children. Leaving the cars in the street as it did was not an invitation or license by the defendant to him to play upon them, even though defendant knew that they were calculated to attract children, and did in fact attract them. Knowledge on the defendant's part that they attracted children was not an invitation or license to them; other

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wise, the fact that one knowingly maintained on his own premises an object that allured children would constitute an invitation to them. Nor could an invitation or license be implied from the negligence of the defendant, if there was negligence, in leaving the cars in the street. The most that can be said for the plaintiff is that the defendant, knowing that the cars would be, and were, attractive to children, was bound to anticipate what actually occurred, and to exercise a corresponding degree of care to see that the cars were securely fastened and guarded, and is liable for an injury occurring to the plaintiff's intestate through its failure to do so. This assumes that all the plaintiff is re quired to show is that his intestate acted as reasonably might be expected of him. But he might do that, and still be a wrongdoer and trespasser, and contribute by his con duct to the injury which he received. If he did, then the fact of his youth, and the fact that the defendant's negli gence also contributed to it, would not render the defend ant liable. If the cars had been set in motion by other children and the plaintiff's intestate had been injured by them while lawfully upon the highway, the defendant, clearly, would have been liable. Lane v. Atlantic Works, 107 Mass. 104; i11 Mass. 136. But he was using the highway and the cars for play, and was a joint actor with other children in causing that to happen which resulted in his injury. We might fairly assume, if it were necessary, that a boy ten years of age, and of ordinary intelligence, would know that he had no right to play upon cars which a street railway company had left standing in the streets. Upon the declaration, as we interpret it, we do not think that under the decisions in this State the plaintiff is entitled to recover. See cases 21 L. R. A."

Latent Ambiguities. — In Hallady v. Hess, Supreme Court of Illinois, October, 1893 (35 N. E. R. 380), it was held that where a deed describes the land by metes and bounds, beginning at a certain corner of "section eight" in a certain county, without naming the township and range, and it appears that there are in said county several sec tions numbered 8, it may be shown by parol evidence in a suit to reform the deed what section was in tended, since the ambiguity is latent. The Court said : — "The description, taken in connection with the proof, reveals a latent ambiguity. There are several sections numbered 8 in La Salle County, and this fact is ascer tained outside of the deed, and does not arise upon the face of it. When an ambiguity is made to appear by the introduction of proof outside of the deed it is a latent ambiguity, and may be explained by parol evidence. It being made to appear that there is a section 8 in each of several different townships in the county, it may be shown by parol in what township the section 8 mentioned in the deed was located (Dougherty v. Purdy, 18 Ill. 206; Bybee v. Hageman, 66 Ill. 519; Clark a. Towers, 45 Ill. 283; Billings v. Coal Co., 67 Ill. 489; Fisher v. Quackenbush, 83 Ill. 310). Here the evidence shows that the grantor, Abram Hess, owned a tract of land in section 8, in town-