The sun., 1915-06-27
NOVEL POINTS OF THE LAW.

NOVEL POINTS OF THE LAW.
The recent decision of the United
States Circuit Court of Apeals, Sixth
Circuit, in Erie Railroad VS.. Hurlburt,
is in line with other judicial rulings
that IL a person undoubtedly would have
noticed an approaching train or car
If he had looked at all intently he will
not be permitted to recover because
fe says he did not see 1t. The court
points out that traveller who looked
for trains as she approached "A railroad
crossing was chargeabe with seeing
what there was to be seen by an
ordinarily pruden. person by the exeT-
else of reasonable care, and II she
looked intently and failed to see what
was plainly to be seen she was negli-
gent The court said on this point:
"It challenges human credulty to be
asked to believe that Mrs Hurlburt
looked and listened as she says that
she did. and neither saw nor heard the
train that smashed into her buggy and
wrought such havoc. There is no evi-
dence that tends to explain why she did
not see the oncoming train. Her own
testimony explcdes every theory upon
which to predicate an explanation that
would tend to excuse her Indeed, 1t is
50 improbable that 1t does not afford
a sontilla of evidence upon which to
go to the jury"
4 railroad company owes a duty to
switchman, sitting on velocipede near
its platform. to prevent other employees
piling trunks thereon from casting one
over on the switchman.-San Antonio
and A. r. Ry Company vs.. Blair, Texas,
l73 S. w, 1856.
In n brief by counsel in Casper vs..
Kalt-Zlmmers Manufacturing Company
in the Supreme Court Of Wisconsin the
attorneys said that they have grown
to believe tperhaps enormously, as a
general proposition) that courts OF
equity recognize no limitations upon
their powers, and that they enjoy most
the finding of new plausible ways Tor
the destruction OF rights, however foru-
fed by constitutions, statutes or well es-
tablished principles. II once II has been
made to seem TO them personally desira-
bic to accomplish that end
The court declared that such language
was a nagrant violation OF professional
ethics and of the duty and respect whlcn
attorneys owe TO courts. which Will pe
punished by denial of costs both for
printing the brief and for attorneys
fees and by striking the brief from
the flies. The court said:
This court does not claim infallibi-
ity IL realizes that IL is only human
agency and therefore may err But IL
does claim that II is earnestly laborlhs
to administer justice TO preserve, not
TO destroy. rights; to so interpret ana
amply the constitution, statutes and prin-
ciples OF law. that they shall become
the shield of right, not OF wrong ana
to conserve them In their spirit and IN
,egrIty. TO the end that they may truly
fulfil the purpose for which they were
ordained and established. To accom-
plish this object TO its fullest extent
this court needs no unprofessional goad.
judicial labor is not lightened. nor is
judicial balance strengthened, by such
language as counsel has used. Hence II
is reprehensible from every point or
view and deserves the severest con-
demnation from bench and bar alike
Improper comments by an attorney
concerning opposing counsel in brier
before the Supreme Court OF the United
States called forth the following IAN
guage from Chief Justice White in Royal
| Arcanum vs.. Green:
Before making the order OF reversal
| We regret that We must say something
more. The printed argument for the
| defendant in error is SO full OF vitupera-
| tive. unwarranted and !mpertinent eN-
! presslons as 10 opposing counsel that We
| feel we cannot. having due regard 10 the
| respect we entertain for the profession,
permit the brid TO pass unrebuked or 10
remain upon our files. and thus preserve
| the evidence Of the forgetfulness by ono
| OF the members OF this bar of his OBJ
vlous duty Indeed. we should have no.
! tlced the matter at once when II came 10
! our attention after the argument OF tho
! case had We not feared that by doing so
delay In the examination Of the case and
possible detriment 10 the parties would
| result. Following the precedent estab-
| lished in Green V. Ebert OBJ L. 3.
! Gl5). which We hope We may not again
| have occasion to apply. the brief Of the
| defendant in error is ordered to be
/ stricken from the files and the decree
| below, in accordance with the views
which We have expressed, Will be re-
versed and the cause remanded for fur
! ther proceedings not inconsistent with
! this opinion"
/ Where an employee slipped and re-
ce.ved fatal injuries in attempting 20
| dodge playful attack OF another en-
ployee held that the injuries were re
ceived in the course of empl yment
within the workmen's compensation
act.-uulley v. Mossbrugger, y. j., 93
Att. 70.
conveyance by an old and feeble
man OF his homestead to his daughter
in consideration Of her caring Tor him
is not necessarily fraudulent nt--MC X LIP
V. Farmers State Bank OF Des LaCas,
y. D.. Isl y. w, 2s7.
The New York Appellate Division
Second Department, has decided in
Pei pie VS.. International Nickel Com
pany that an indictment will not lie IN
this state against the defendant oper-
ing a plant At Bayoane, y. j. in such
manner that fumes and gases are car
ried by the wind across the Kill van
Kull into Richmond county, whereby tho
health OF many residents there is en-
dangered. The indictments We're sought
| under the section Of the New York penal
law authoriziNS the punishment of Il per
/ son without the state, who. with Intent
10 cause within the state a result con-
trary to the laws Of the state, does an
act which In its nature and usual course
| results in an effect contrary to the
| state laws. The court decides that &
Is the maintenance and operation OF the
factory and not the fumes themselN es
that constitute the nuisance. The rem
cdy Is po!ned out as follows:
THE situs II this nuisance is in an
other state While the results Of the
nuisance may affect the inhabitants oi
this State, criminal redress against me
defendant will have to hc sought IN the
courts OF the state of New Jersey, where
the nuisance is, or, at the suit or The