Page:The Green Bag (1889–1914), Volume 08.pdf/332



CURRENT TOPICS. Criticisms of the Judiciary. — It will be an occasion for regret to many that the learned and dig nified "American Law Review" lends its pages to the circulation of Governor Pennoyer's incendiary and foolish utterances against the power of the United States Supreme Court to set aside an unconstitutional act of Congress or of a State legislature. All law yers know, of course, that the editors of that excel lent periodical do not approve their contributor's peculiar views, but this will not prevent a general re gret that they should give any opportunity to such a crazy and dangerous creature to exploit them. It is very much as if the Rev. Dr. Parkhurst should lend his pulpit to Bob Ingersoll in order to enable him to abuse the Christian religion. Pennoyer is no better than an anarchist; indeed, he is worse, for he is a mere demagogue, which very few anarchists are. Let him print his ridiculous notions in some country news paper, and fume and threaten the justices with im peachment, and ride his horse in gore to the bridle in imagination in such harmless obscurity. If he could only somehow form a partnership with Ignatius Donnelly in the political business it would seem very fitting. We join the " New York Law Journal" in regret also that the " Review" should deem it necessary to charge the New York Court of Appeals with favoritism toward corporations, on account of their decisionin Cosulich v. Standard Oil Company, 122 New York, 118. To quote the " Review's " language : — "That case nakedly holds that evidence that an oil refinery in charge of the defendant exploded, causing a quantity of burning oil to flow down a pipe used for pumping oil to the works from vessels moored at the wharf of the company, from which burning oil a lighter moored at the wharf took fire and exploded, communicating the fire to the plaintiffs vessel, is not sufficient to take the question of negligence to the jury, and that upon such a state of evidence the Court below erred in refusing a non-suit. The Court holds that the rule of res ipsa loquitur is not applicable in such a case. Exactly the reverse should have been held." The Court could not have held differently without contradicting the uniform course of their decisions. They held the same doctrine, in respect to an ex plosion of a steamer boiler, in Losee v. Buchanan, 51 N. Y. 476, which certainly was not a corporation

case, and that has been the well recognized doctrine in respect to spread of fires, ever since Clark v. Foot, 8 Johns. 421. They found the decision in ques tion on Losee v. Buchanan, and fortify it by citations from Iowa, Ohio and Tennessee. They even cite the indubitable authority of one of the learned Reviewers, Judge Thompson himself, as follows : " It is believed that it is never true, except in contractual relations, that the proof that the mere fact that the accident happened to the plaintiff, without more, will amount to prima facte proof of negligence on the part of the defendant. 2 Thompson on Negligence, 1227." Judge Thompson publishes the Losee case in full in his approved work on Negligence, and says that it "undoubtedly proceeds upon the true ground." The decision in question may also probably be up held on another ground, namely, the New York rule concerning proximate and remote cause of damage, as laid down in Ryan v. N. Y. Cent. R. Co., 35 N. Y. 210; but as that was a corporation case we will not urge it, and, indeed, that doctrine was not relied on in the Cosulich case. The Court may be wrong in principle, although there seems highly respectable authority to sustain them, as cited above; but there appears to be no reason whatever for charging the Court with favorit ism toward corporations on account of this decision.

A New Species of Demonstrative Evidence.— In a recent English case of Gladys Ffolliott, an actress, against the Nottingham Theatre Company, for injuries sustained by falling through a dilapidated stairway in the theater, the plaintiff had a verdict of $5000, chiefly attributable to the evidence of x-ray pictures of the injured foot, showing serious displace ment of the bones. This is said to be the first in stance of the introduction of this species of evidence. An appeal is pending, but there would seem to be no more impropriety in this evidence than in the case of ordinary photographs. They are good for what they are worth, and that is a question of expert testimony. Miss Ffolliott seems to have had better luck than Miss Seymour, the chorus singer, in her suit against Maddox (16 Q. B. 326), for injuries sustained by falling through an open trap-door in passing off the stage. The Court, in the latter case, were comparatively in3«>3