Page:The Green Bag (1889–1914), Volume 08.pdf/106

 Rh It is at all events a jest quite original with him, for nothing like it was ever heard of before in the history of jurispru dence, and nothing but the eminent standing of the coun sel who invents and champions it could secure for it a moment's serious attention, and save it from contempt." Fraud having been eliminated from the case by the proofs, the counsel likened it to the removal, from the ancient cosmogony, of the tortoise on which rested the elephant which supported the earth. " He goes through the motions of drawing water after the bottom of his bucket has fallen out. He is like the Calvinist, who said in discussion, ' Why, sir, if you take away my total depravity, you leave me nothing to stand on.'"

Electricity. — In Girandi v. Electric Imp. Co., California Supreme Court, 28 L. R. A. 596, it was held that placing electric light wires over the metallic roof of a hotel where persons may come in contact with them, without raising them high enough to pre vent such contact, is sufficient proof of negligence in case of injury to a person by an electric shock from such wires; and that want of ordinary care of an employe in a hotel in going out on a metallic roof in a dark night with his employer to secure signs which seemed to be endangered during a heavy rain, and coming in contact with electric light wires which he knew were above the roof, but which he may not have known to be dangerous, is a question for the jury. The last three decisions illustrate the curious and novel questions with which modern courts of law are called upon to deal. None of these questions both ered Coke, nor Kent, nor any of the great judges who flourished twenty years ago.

Constructive Flight. — The North Carolina court seems to be in a little trouble with itself about this subject. Comment has been made on its deci sion in the Hall case, where it held that if a man stood in North Carolina and fired across the bound ary and killed a man in Tennessee, he was not so con structively present in the latter State as to warrant his extradition thither for trial. (115 N. C. 811; 28 L. R. A. 289.) But now they hold that the departure of one to his home in another State after making criminally false representations, in reliance on which the goods were subsequently delivered to a common carrier and shipped to him, is within the law a flight from justice for which he may be surrendered on a requisition. In other words, a man may " fly " with out knowing or intending it. If this is right, and very likely it is, there is such a thing as constructive flight, and if so, why should there not be such a thing as constructive presence?

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Experiments in Court. — A case that may be added to the collection on demonstrative evidence made some time ago in this periodical, is Libby etc. v. Scherman, Illinois. It appeared that the plaintiff was working in a packing-house alongside large piles of barrels full of pork. One of the barrels located about the centre of one of the piles leaked and the foreman of defendant knocked in the head of the barrel and had its contents removed, leaving the empty barrel in its place in the pile. Shortly there after the pile gave way at this place and one of the falling barrels injured plaintiff. Defendant offered to prove by witnesses who made experiments that an empty barrel located as the one in question could be taken out without causing the pile to give way and that the head of a barrel located relatively the same as the one in question could be knocked out and its contents removed without affecting the stability of the pile. — Held: that the court properly rejected the proffered testimony. The court said : — "We are clearly of the opinion that experiments of that character, and their results, and inference drawn from them by witnesses, were mere collateral matters which could have no legitimate bearing upon the issues before the jury. Besides the impossibility of showing that the conditions under which these experiments were made were in all respects identical with those existing at the time the plaintiff was injured, and the multitude of collateral issues which an attempt to prove identity of conditions would raise, the fact that one experiment had been conducted to a successful issue would have little if any tendency to show that in another case precisely like it, an accident might not happen. A thousand men may pass an impend ing wall with safety, or at least without injury, but the next man who attempts to pass it may be crushed by its fall. The question is not whether a pile of barrels might not stand with an empty barrel situated as was the one in this case, but whether leaving such barrel in the condition shown rendered the support of the barrels above it less secure, and that to such a degree as to constitute negli gence, and whether the plaintiff's injury occurred as the result of such negligence."

Master and Servant — Term of Hiring. — The New York Court of Appeals, in the recent case of Martin v. New York Life Insurance Company, have held that — A general or definite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof; that A hiring at so much a day, week, month, or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for the time actually served, and Accordingly, that a contract to pay the plaintiff