Page:The Green Bag (1889–1914), Volume 06.pdf/631

 584

best, he had a choice of perils : a choice to be ex ercised on the instant by a man crippled in both feet, and consequently a not very agile jumper. He had been put in this position by no act of his own, but by the negligence of one or other, or both, of the railroad companies. We fail to see any evidence of absence of ordinary care here, under these circumstances. The instruction, in substance that ordinary care re quired plaintiff to perform the duties of conductor and motorman; that, practically, he was to exercise the same care as if he had been driving his own horse, — ' stop, look, and listen,' — was erroneous, and cal culated to mislead the jury. It would have been but a step further, and a short step at that, to have directed the jury to inquire whether plaintiff had not been guilty of contributory negligence in taking passage on a street-car, which he knew, in its route, would cross a steam railroad at grade. The law imposes no such duty upon the traveler by public conveyances laid down in this charge." The reason of this decision is very adroitly put in the last sen tence but one. A valuable note in 23 L. R. A. 200, cites many other cases, for example, Richmond v. Long, 17 Gratt. 375, 94 Am. Dec. 461, in which the city was held not liable for the negligence of its agents at a city hospital, resulting in the death of a slave, who was being treated in a hospital. This is the doctrine also of McDonald v. Mass. General Hospital, 120 Mass. 432; 21 Am. Rep. 529. On the other hand it was held in Rhode Island, in respect to a hospital, that it was liable to a patient for negligent treat ment, although the hospital was administered largely as a charity, with income derived mainly from en dowments and voluntary contributions, and its physi cians gave gratuitous services, and the patient paid nothing except a small amount for board and atten dance. Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675, citing Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; 11 H. L. Cas. 686.

Dower and Divorce. — An important point, and one probably not generally understood by the profession, is thus commented on by the New Jersey Law Journal, vol. 19, p. 130. : "The Chief Justice in giving the opinion of the Court of Errors, in Calame v. Calame, 25 N. J. Eq. (10 C. E. G.) 548, suggested a doubt whether a decree for divorce from the bonds of matrimony would have the effect in this state, of barring the wife's dower, saying that ' the point was settled the other way in a case receiving great consideration from the Court of Appeals of New York, the statute of that state being perhaps not substantially variant from our own. Wait v. Wait, 4 N.Y. 95.' The Chancellor in a

recent case (Pullen v. Pullen, 28 Atl. Rep. 719), decides that the wife's dower is barred in such a case. He says he does not think the Chief Justice intended to pronounce against the correctness of the conclusion, and that his use of the word ' perhaps ' shows that he did not pretend to have made a careful examination of the question. The Chancellor says he finds that Mr. Justice Gray, of the United States Supreme Court, in commenting upon the case of Wait v. Wait, in Barrett v. Failing, i11 U. S. 523, states that the ground of that decision was a provision in the statute of New York, which is not found in our statute, and the conclusion in Barrett v. Failing was that a valid divorce from the bond of matrimony, for the fault of either party, bars the wife's dower, unless the dower right be expressly or impliedly reserved by statute. This was the doctrine declared by Vice-Chancellor Dodd, in Calame v. Calame, 24 N. J. Eq. (9 C. E. G.) 440, and his decision on this point was not overruled by the Court of Errors and Appeals. So also Vice-Chancellor Van Fleet, in American Legion of Honor v. Smith, 45 N. J. Eq. (18 Stew.) 466469, said ' a divorce from the bond of matrimony affects property rights of both parties. A divorce of that kind puts an end to any right which has been acquired in the property of the other by the marriage, unless its effect in that regard is restrained by statute,' citing Barrett v. Failing, III U. S. 523; Tyler v. Odd Fellows' Relief Association, 145 Mass. 134. Vice-Chancellor Dodd went further, and held that since under our law divorce was absolute and the wife is no longer the wife, and no longer holds her dower or other interest in the property of the husband, the Court of Chancery might go further than the ecclesiastical courts of England, and might give the wife a portion of the husband's estate, and not merely of the income. It was this decision that was disapproved of by the Court of Errors, which held that the meaning of the word alimony was not changed, and that it must be con fined to payments in the way of annuity, and could not be extended so as to include a portion of the estate, although (if the divorce did have the effect of depriving the wife of dower, ' her loss in this respect might have the effect of increasing the amount of her alimony.'" We infer that the question is confined to cases where the divorce is granted on account of the husband's fault, and that the wife universally loses her dower by absolute divorce for her own fault. The doctrine of New York seems to be based upon the language of the statute, "in case of divorce dissolving the marriage contract, or the misconduct of the wife, she shall not be endowed," and its apparent restrictive intent, because the statute "has nowhere said that when the husband is the offender, she shall forfeit her dower as a condition of her divorce." It should be noted that even in New York divorce for the fault of either destroys the wife's right to administer on or share in his estate. Ensign's Estate, 103 N. Y., 284; 57 Am. Rep. 717. The general doctrine is probably based on the theory that the wife elects to give up her dower for the sake of the divorce, or the court makes up the loss by an allowance of alimony.