The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1909-12-23
Q recover the price Of the paper sold

~ ,ts. ssts
to recover the price Of the paper sold
The supreme court passed upon this
case within the last year or two, and
Its decree created q profound impress
sion throughout tie business world.
The court affirmed aJudge Lurton by
vote Of five to four, and again the
late Justice Peckham sided with the
minority. Thus, IL another case in
volvtng the same vital principle as
came up in the wall paper trust case
should arise, the supreme court would
stand six to three instead of five to
four If Lurton were on the bench.
There are several other cases which
afford Lurton the opportunity to sus-
tain every feature 1of the antitrust
act. The title of one of these is John
ID. Park & Sons against Hartman.
Here the court puteAn end to an effort
to control the prices at which whole
sale and retail druggists should sell
certain patent medicines.
Upheld Freedoraof Commerce.
In his opinion this case Judge
Lurton said: ~
ut has been shSgested that we
should have regard for new CONNER
cial conditions andXa tendency for a
relaxation Of the, did common law
principles which teKd to prevent de-
velopment on modern lines. This is
an argument bettersarldressed to legis-
lative bodies than tosthe courts. Mel
ther is 1t wise for the courts to counte-
nance the introduction of artificial
distinctions depending, upon the vari-
ant economic views of Individual
Observation-Disclosures Ahich are speci-
GUS or analogies width afford oppor-
tunities to whittle Saway broad eco
nomic principles lying at the bottom
of our public policy Like argument
81 expected whenever some new
method of circumventing the freedom
of commerce comes Under the test Of
the law"
1t has been alleged that Judge Lur-
ton has shown himself to be out of
sympathy with Legislation looking to
the betterment of thesworking classes.
In sustaining the judgment Of the
court below, in favor of an employe
who had been injured, the Judge, in
the case of the National Still COM
pany vs.. Hore, said:a
1T was the duty Of the company to
guard against such accidents as could
be seen as liable to occur, by the
exercise of reasonable care, and the
employe had right to assume that
the master had not unreasonably and
negligently subjected him to the dan
ger that this block would blow out
To assume, as a matter of law, that
a common laborer, such as Hore was,
should have known that there was
this danger, Is going too far. To de-
feat an action by defense of assump-
tion of risk, the employer must show
not only that the servant knew of the
negligence of which he complains,
but that he knew and understood, or
ought to have known and appreciated,
the increased danger to which he
voluntarily exposed himself. There
is distinction between knowledge of
defects, or Of auegedAAegligent acts,
and knowledge of sthe risk resulting
therefrom."
Protecting Railway Labor.
Again, in the case of FELTON, VS.. Bull
lard, Judge Lurton, sitting with Judge
Taft, gave an opinion holding that a
railroad was liable in a case in which
the brakeman had been killed while
descending from the top of a moving
car by reason of the defective char
acter Of grabiron, although the car
did not belong to the defendant, but
to another company. In deciding
against the railroad, Lurton said:
The we'll known course of business
pursued by common carriers involves
SO large use of foreign cars as to
make it inadmissible that any dis
tinction should be recognized between
the duty of carrying for the safety
and protection of employees engaged
in operating such cars and that ex-
acted in respect to cars owned or con-
trolled by the carrier. Employees can
no more be said to assume the re-
sponsibility for injuries due to the
defective condition of foreign cars
than they can be said to assume the
risk arising from defects in domestic
cars. A railroad company owes to
its servants the legal duty of not ex-
posing them to dangers arising from
defects which might be discovered by
reasonable inspection"
The Case Summed. Up.
These references to Judge Lurton's
showing that. contrary to the argyll
criticised his appointment, he is not
! cuClIely OuI VI HdI IlllOAy Will IuC
spirit which has been compelling
force in bringing about legislation for
the proper control of trusts as we'll
as for the protection and ameliora-
ton of the working classes
The contention is not offered that
his opinions have always met with
universal approval. but this would be
too much to claim for any jurist of
! the present or the past. Moreover,
If the presidents judicial Office can
not be depended upon, especially when
he sat on the same bench with him
for seven or eight years. whose judg
ment can be said to be worthy of seri-
GUS consideration?
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