Page:The Green Bag (1889–1914), Volume 19.pdf/409

 38o

THE GREEN BAG

though having a certificate that she was not a fit subject for vaccination is determined in favor of the town in the recent case of Hammond v. Town of Hyde Park, 80 N. E. Rep. 650. By law it is provided in Massachussetts that a child who has not been vaccinated shall not be permitted to enter a public school except by presentation of a certificate signed by a legular physician that she is not a fit subject for vaccination. This law, the court held, impliedly permits a child who is not vaccinated but presents a proper certificate to attend school when there is no particular reason to apprehend danger but is not intended to take away from the school committee the power to make proper regulations for the protection of all the pupils if the prevalence of smallpox seems to require special precautions. As the school board in this case acted in good faith in excluding pupils not vaccinated during an epidemic of smallpox and had relieved the plaintiff from the suspension as soon as the crises had passed, the court held that the town was not b'able. NEGLIGENCE. (Electricity.) Miss. — In Temple v. McComb City Electric Light & Power Co., 42 So. Rep. 874, an electric light company is held liable for injuries to a small boy received by coming in contact with an uninsulated wire while climbing a tree through which the wire passed. The tree in which the accident happened was a small oak tree, abounding in branches extending almost to the ground. As the light company had knowledge of the tree and what kind of a tree it was, the court held that it also knew what any person of practical common sense would know — that it was just the kind of a tree children might climb into, to play in the branches. The court remarks that the immemorial habit of small boys to climb little oak trees filled with abundant branches reaching almost to the ground is a habit which corporations stretching wires over such trees must take notice of. As far as within the court's power, it is going to safe-guard the right of small boys to climb such trees. NEGLIGENCE. (Proximate Cause.) BI. — The liability of a railroad company for injuries to a child received while the child was playing on a clay pile alongside the railroad track received con sideration in Seymour v. Union Stockyards and Transit Company, 79 N. E. 950. In this case it was sought to hold the railroad company liable on the theory that it had by leaving clay piled along its track created a nuisance attractive to children. It appeared in the case, however, that though the child injured was attracted by the clay piled along the railroad track and went thereon and was there at play, he was not while so en gaged in any danger; but as a train passed, the child, no longer absorbed by the attractions of the

clay pile, began touching, playing with and run ning alongside the slowly moving cars, finally falling under them and sustaining the injuries complained of. Under such circumstances, the court was of the opinion that an element inter vened between the acts induced by the allure ments of the clay pile and the injury, viz., the movements of the boy in placing himself in contact with and running along side the cars. Thus the case at bar was distinguished from Kansas City, Ft. Scott & Memphis R. Co. v. Matson, 68 Kan. 815, 75 Pac. 503, relied on by plaintiff. Counsel for plaintiff made no claim as to negligence which might otherwise have been predicated on the fact that the clay was not so leveled down or was not placed at such distance from the track as to make or leave the approach to the railroad track over smooth or level ground. The court holds that the railroad company was not liable in this case, the proximate cause of the injury not being the pile of clay, nor any danger with which the child was brought in contact while gratifying any curiosity or desire excited by that pile, but the movements of the child in placing his hands upon and running alongside the car. NEGLIGENCE. (Street Railroads — Subway Crowds.) Mass. — Passengers frequently receive more or less serious injuries while struggling to board street cars in crowds. A case dealing with this question and exhaustedly discussing the com pany's liability under such circumstances is that of Kuhlen v. Boston and Northern Street Railway Company, 79 N. E. 815. In this case plaintiff was injured in a crush while attempting to enter a car at a subway station in Boston. The court notes as cardinal principles that a carrier is bound to select and employ a sufficient number of com petent servants to meet any exigency which, in the exercise of that high degree of vigilance and care to which it is held, it had reason to anticipate, and that it is its duty to use all proper means and precautions to protect its passengers against in juries caused by the misconduct of other passen gers, such as under the circumstances might have been anticipated and could have been guarded against. Numerous authorities are cited in sup port of these rules. As there was evidence in tnis case that there was an unusually large crowd in the subway station at the time of day plaintiff was injured and that there had been on many previous occasions the same surging and struggling as occurred at that time, the court held that the jury had the right to find that the defendant and its servants ought to have anticipated just what actually took place, and ought, in the exercise of necessary care, to have taken reasonable precau tions to guard against such injuries as were caused to plaintiff, and that they were negligent in tail