Page:The Green Bag (1889–1914), Volume 09.pdf/62

 The Lawyers Easy Chair. such corporations and the people where there is room for doubt or casuistry, as to create the painful impres sion that that court sits as a sort of stakeholder for private corporations." This language is held of a de cision that a railroad company is not bound to lock or guard a turntable on its own lands for the protection of trespassing infants. We believe that the deci sion is wrong, but there is nothing in it to justify such intemperate and disrespectful language. The decision was foreshadowed in that court some years ago in a case between individuals, and is in harmony with de cisions in Massachusetts and New Hampshire. The statement in the same article that a Missouri judge once entertained the New York opinion, but was con verted by the death of a near relative of his, " a bright and promising boy," while playing on an unfastened turntable, strikes us as very funny. Causes are not de cided on such emotional and personal considerations in the Eastern States. The turntable cases are distinguished in a very re cent case in Texas (Missouri &c. Ry. Co. v. Ed wards, 32 L. R. A. 825), in which it was held that —

PRACTICAL JOKIXG. — Judge Dent of West Vir ginia, although evidently possessed of a sense of the humorous, does not believe in practical joking. In the recent case of Plate v. Durst (32 L. R. A. 404), it appeared that the plaintiff, in 1885, when twelve years old, went to live with the defendant, her brotherin-law. For three or four years she was sent to school, clothed and treated like a daughter, rendering in re turn a daughter's natural service in the family. She also acted as clerk in the defendant's store. This lasted till 1894, when the defendant and his wife quarreled and separated, and the plaintiff was turned adrift, without compensation or provision. It con clusively appeared that in 1890 the defendant asked her if she was tired. She said she was. Then he asked her how long she had been with him. She said five years. Then he replied, " When you are with me ten years I will give you $1000." On another occa sion he promised to give her on her marriage Siooo and a $500 diamond ring. The defense was that the defendant was joking. The Judge observes : —

"Injury to a child while playing on a pile of railroadbridge ties in the railroad yard, which is fenced except on the side along the railroad track, and out of which the ser vants of the company always ordered any children found there, does not render the railroad company liable, as it was not under obligation to so pile the ties as to prevent injury by a child climbing upon them."

"It must be admitted, in any view of the matter, that this was jesting on a very serious subject to this unfortunate and parentless young girl — still in the eyes of the law an infant — engaged early and late, week days and Sundays, atho:ae and abroad, actively, earnestly, and faithfully endeavoring to promote the worldly interests of the defendant. Jokes are sometimes taken seriously by the young and inexperienced in the deceptive ways of the business world, and if such is the case, and thereby the person deceived is led to give valuable services in the full belief and expectation that the joker is in earnest, the law will also take the joker at his word, and give him good reason to smile. The services were rendered in ad vancement of the defendant's business. They were valuable and necessary, and so he regarded them. Until she was seventeen, nothing was said as to compensation; but she was clothed, fed, furnished spending money, and received some so-called presents from the hands of the defendant. She had then arrived at an age when she had become quite pro ficient in his business, — that of a caterer and confectioner; was very useful to him, and diligent and attentive about his business. It was also quite time for her to begin thinking about her own future. He, as a sensible business man, un doubtedly realized this fact, and also that he was receiving gratuitously services to which he was not entitled, and that as soon as she became fully informed as to her own worth and rights, she would ask compensation at his hands, or seek other employment. The defendant says he was not in earnest, but only jesting. Admitting such to be the case, these con versations, whether he was in earnest or not, were calcu lated to mislead her, and leave the impression on her mind that in any event he would deal justly by her, and fully com pensate her for her services; and in this manner he retained her in his employ until it suited his convenience to discharge her without compensation, which he did, to say the least, in an unkind and heartless manner, ill becoming to a stranger, much less a brother-in-law. And now it devolves upon us to say whether she is entitled to pay for what her services were actually worth, or does the law, from the fact that he

The court adverting to the ground on which the turntable cases are put, namely, the attractiveness of the machine to children, observe : — "The question suggests itself, what object or place is not attractive to young persons who are left free to pursue their innate propensity to wander in quest of amusement? What object at all unusual is exempt from infantile curiosity? What place, conveniently accessible for their congregation, is free from the restless feet of adventurous truants? Here the language of an eminent judge in disposing of a similar case is appropriate : ' There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to inclose it or till up their ponds and level the surface so that trespassers may not be injured would be an oppressive rule. The law does not require us to enforce any such principle even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They lish, shoot, swim, and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is part of a boy's nature to trespass, especially where there is tempting fruit, yet I never heard that it was the duty of the owner of a fruit-tree to cut it down because a boy trespasser may pos sibly fall from its branches. Vet the principle contended for by the plaintiff would bring us to this absurdity if car ried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents.' Paxson, J., in Gillespie -/. McGowan, loo Pa. 144, 45 Am. Rep. 365."