The sun. [volume] (New York [N.Y.]) 1833-1916, 1916-02-06
NOVEL POINTS OF THE LAW.

tThChb. hTc Helu III. EuWhTuS w. tue 4NeW
York Central by the Appellate Division
Of the Supreme Court. Second Depart
mont. to be guilty Of c~ontributory negll-
gence In case Of an accident. The court
reverses q verdict for $4,000 in ttehalf
Of Minnie T.. Edwards. whose HUSBAND
Lehman Edwards, was killed at Ridge
field Park, N. j.. on December 20. 1871.
The facts Of the case showed that there
was an overhead bridge at the station.
crossing defendants tracks, and also u
planked crossing At the end Of the sta-
with a gong which rang automatically,
at the approach Of a train. There was
evidence that this gong was ringing at
the time Of the accident and that the APP
preaching train had whistled. The de-
cedent. however. instead of using the
aforesaid meant Of crossing, proceeded
across the defendants tracks intending
to pass through or over a fence which
was In n more or less daiapidafed con-
dition. there being evidence that other
persons had, crossed the tracks lin a
similar
The, court said
1.-The doctrine Of a permitted crossing
of a de facto path. rests on actual
rights OF way. or may sometimes be
grounded on an established foot pas
sagewa y-one not merely tolerated by
the railroad, but by Implication invited
by 1t to be so used. In q comparatively
rural locality like this. the doctrine or
such a crossing cannot be set up 10
shield impatient commuters In ther
habit of spreading out II rushing over
barriers. in too great haste to walt and
use a proper crossing, or to walk up ana
over the bridge.
The fact tina the path provided .
less convenient thar the short cut at
tempted makes no difference. The rail-
road invited passage where II
had best guarded against danger. by bell
and by fiagman and II from another
railroad passengers see fit TO venture
on defendants tracks away from Inc
safe crossings they must be deemed 10
take the risk Of their impatience'
Tho Supreme Court OF Mississippi
holds that while II Il the duty OF a
passenger to inquire before eotnS upon
n train whether Il will stop At the station
his ticket recites as his destination. yet
IL also In the duty OF the conductor, to tell
rhe passenger upo presenting ms TICKET
that his train will not stop, III II VIII
rot, at such station. so that ne may d's-
embark at h station next before tram
reaches the one specified. faolo q NJ
Y. II Co. V. Walls. 20 So. 3tS. This
0uyN DtlnH lfIDoE'h "a ~
1, Their held hi PASSENGER going beyond
his station. he mas no right TO eject MIN
from the train between stations on u
da rk and rainy night at n place with
which he Is not familiar, the passenger
being without money to pay additional
fare. Therefore,, where a passenger was
injured. after being elected. by falling
through a tresile, he had a good cause
OF action.
In people v. Wiener. in the supreme
Court OF Illinois December. 1915. llo
y. Z, SOD, II was held that a statute
Of HI state CLaws 19l5..p 800 pro-
hibiting the use OF cotton or otser ma
terial made second hand by use abou;
the person in the manufacturing OF mat
quilts or bed conforters ana
the sale OF mattresses. &c.. in which any
such second hand material Is used Is
void. because depriving citizens or the
lawful use OF their property in a manner
not Injurious or dangerous to others. II
Is said that while b; would be proper 70
require tina material be free from germs
OF c%ontagion or infection. the possible
danger to health does not justify tile
absolute prohibition OF a useful industry
where such danger could be dealt with
by regulation. II was further held that
the statute could not be sustained as one
10 prevent fraud or deceit In the sale OF
goods. as that matter could also be regu-
lated withou, prohibiting the use or
second hand material IL properly reno
waited and s,eri.ized.
Where decedent, q ~trespasser. az
tempted t. board a train In motion. in
violation Of statute. IL was conductors
duty to prevent him from boarding by
tbs exercise of al reasonable means. In
Guiding a reasonable degree Of force -
Hawthorne V. Delano. Iowa, lji y. W.
$50.
Plaintiff. whose buggy was driven on
the extreme right Of the travelled part
OF a highway. might assume that driver
OF an approaching team would turn on.
in time 10 avoid "A collision. M that he
was paying some attention to whereNe
was going.-Muehlbauer V. klockner.
Wis, 1874 y. W. GA.
A statement made 70 a person in the
presence OF others. "All want you 20
do Is to pay your honest debts is he'd
not slanderous in Hamilton v. McKenna.
l.. r. A, 1915, T.. 455.
"A more serious question arises out OF
an expression ussd by the public prose-
cutor in his closing argument to the
jury. In the course OF his remarks he
avouched his faith in the States case
by declaring that he believed the de-
PENDANTS guilty and that he hoped God
would send lightning from heaven to
strike him dead IL he did no. so believe.
Considerable allowance is made for pro-
fess!onal enthusiasm even in criminal
cases, but II Is not permissible TO ground
an appeal for conviction upon facts not
given in evidence AT the trial. We dc
not attach much importance 10 the offer
or counse. to test the truth Of his
statement by ordeal. What he said in
that behalf had no real significance Il
was a mere rhetorical flourish. Calling
spirits from the 'vasty deep or levin
from the sky is. in this ma~terialistic
age "A perfectly harmless diversion, for
however vehement the call may be. no
answer is expected" Per Sullivan. c. J..
in Reed v. State. &c Neb. lss.
The offer OF n candidate for public
office TO turn back Ia the treasury ali
his salary above 81 500 II elected is held
by the Supreme Court of North Dakota
In D!ehl w. Tottcn TO be a violation Of
The corrupt practice. act disqualifying
him from holding such office. In con-
tending that. the judgment against him
wal wrong the defendant, said in his
bri,r
"'n .his case there Is no. .corrupt In
tent, no wilful ~wrongdoing, but merely,
"A mistake as to the legal rights of the
parties, brought about BY public discuss
sion of the question whether the old Of
ficer was not collecting a larger compen
station than he was entitled IN rrh. a.