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road Rate Regulation, and Mr. James H.

THE ALBANY LAW JOURNAL Wilkerson, of Chicago, will lead the discus

A Monthly Record of the Law and the Lawyers

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sion for the affirmative. Some of the other

The

Published by THE ALBANY LAW JOURNAL COMPANY, Albany subjects on the program are as follows, Municipal Court of Chicago," Hon. Harry yers' queries or comments, criticisms on various law ques- Olson, Chief Justice; The Pure Food

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Uniform Laws and Negotiable Instruments Law, Judicial Administration, Legal History and Biography, Law Reform and the Practice Act, and other matters of interest to the members of the association.

Justice Walter Lloyd Smith, of the Appel

passages:

"Item: I give to good fathers and mothers, in

The next meeting of the Illinois State Bar Association will be held at Galesburg, Illinois, July 11th and 12th. The executive late Division of the Supreme Court, Third committee has secured Hon. Edward Morse Department, at the recent dinner of the New Shepard, of New York city, to deliver the York University Law School Alumni Assoannual address. In "Who's Who in Amer- ciation, presented what he termed "the most we find the following statement about remarkable document that ever came into Mr. Shepard: his possession." This was nothing less than Shepard, Edward Morse. lawyer, born in New York, 1850, graduated an alleged "last will," which "bequeathed" College City of New York, A. B. 1869, Civil to posterity a most valuable estate. For the Service Comm'r, Brooklyn, 1883-5; chair- benefit of those of our readers who have not seen it, we print several of the most striking man, 1888-90; New York State Forestry Comm'r, 1884-5; Democratic candidate for mayor of Greater New York in 1901, since proposed for gubernatorial and other nominations in his party; director in numerous railway and other corporations; chairman Board of Trustees College City of New York; 66 Item: I leave to children inclusively, but only trustee Packer Collegiate Institute, New for the term of their childhood, all and every, the York; author of Martin Van Buren (in flowers of the fields and the blossoms of the woods, American Statesmen Series), Memoirs of with the right to play among them freely according Dugdale, and many reviews, magazine and to the customs of children, warning them at the same other articles and addresses on political, in- time against thistles and thorns. dustrial and educational topics; member Cobden Club, England." He was the principal counsel for the defense of Hapgood, editor of Collier's Weekly, in the celebrated Mann libel prosecution and was at one time principal counsel for the subway commission of

New York.

The subject for discussion will be Rail

trust for their children, all good little words of praise and encouragement, and all quaint pet names and endearments, and I charge said parents to use them justly and generously, as the needs of their children may require.

And I devise to children the banks of the brooks and the golden sands

beneath the waters thereof, and the odors of the willows that dip therein, and the white clouds that float high over the giant trees. And I leave the children the long, long days to be merry in, in a thousand ways, and the night and the moon and the train of the Milky Way to wonder at, but subject, neverthe

less, to the rights hereinafter given to lovers.

"Item: I devise to boys jointly all the useful idle fields and commons where ball may be played;

all pleasant waters where one may swim; all snowclad hills where one may coast, and all streams and ponds where one may fish, or where, when grim winter comes, one may skate; to have and to hold the same for the period of their boyhood. And all meadows with the clover blossoms and butterflies thereof, the woods and their appurtenances, the squirrels and birds, and echoes of the strange noises, and all distant places which may be visited, together with the adventures there found. And I give to said boys each his own place at the fireside at night, with all pictures that may be seen in the burning wood, to enjoy without let or hindrance and without any incum

brance or care.

"Item: To lovers I devise their imaginary world, with whatever they may need, as the stars of the sky, the red roses by the wall, the bloom of the hawthorn,

the sweet strains of music, and aught else by which they may desire to figure to each other the lasting ness and beauty of their love."

much of it at the time. It was published, paid for, and, as I believed, forgotten. Its revival a decade later comes in the nature of a surprise."

Its revival may also result in keeping the author's name from being forgotten.

Not so very many years ago, when the Wizard of Menlo Park brought out his invention, the phonograph, many predictions were made of the manifold uses to which it would speedily be put and of the revolution it would work in the carrying on of every-day correspondence by the use of sealed records transmitted through the mails, not to speak of many other directions in which its utility would be demonstrated. While some of these predictions have not yet been verified, it remains true that the instrument is quietly but It has been stated that the author of this surely extending its uses. Now we are told (6 prose poem was an insane person, con- that it will be the privilege of mankind to fined in an institution for the feeble minded, hear the voices of eminent men long after but the fact seems to be the other way, and they are in their graves. The arrival in this good judges declare that the endowments country of phonographic records of the voice made give stronger evidence of the world's of the German emperor, to be preserved in insanity than of the testator's. The Roch- the Congressional Library and at Harvard eşter Post-Express is authority for the state- University, naturally suggests the possibilities ment that the author of this remarkable docu- of the remarkable instrument as a historical ment is Williston Fish, a former army officer a Chicago attorney, and an infrequent contributor to the magazines. A decade ago his name was occasionally seen in "Puck" and "Life," but after the appearance of " A Last Will," in the issue of "Harper's Weekly" for September 3, 1898, Mr. Fish dropped out of the literary world. The exquisite conceit to teach languages and singing, to preach serattracted no attention at its initial publication, but Judge Smith's reading of the "document" at the alumni dinner, and his attributing it to a dying insane man rescued it from obscurity. Of his lost child Mr. Fish

says:

witness. An exchange well asks why cannot the voices of our great men as well be preserved as the "coon songs," vaudeville specialties and trivial jingles? Unquestionably the instrument is gradually coming into more general use. Testimony by phonograph is accepted in courts of law, the machines are used

mons and to deliver funeral orations; in Congress the official stenographers make use of them in transcribing their notes, each shorthand writer taking his turn in the debates and "talking" his notes into the machine at a rapid rate, by means of which amanuenses "Charles Lounsbury was my great-great-grand- transcribe them on the typewriters. Not these father. He lived in New York State, and was a uses alone, but many others are being made giant in stature. Various members of our family of the instrument now that its novelty as a have been named after him. After I was graduated wonderful toy has worn off. Mr. Hearst, it will be remembered, employed them in his gubernatorial campaign to appeal to the "plain pee-pul;" the Smithsonian Institu

from West Point, my army life gave me an oppor

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tunity to write. I used to write for Puck and 'Life,' and 'A Last Will' was just one of those little fancies that sometimes occur to you. I didn't think

tion has preserved in phonographic form the will be given to the smelting companies condialects of the vanishing Indian tribes of the cerned to perfect plans now under way to West; many writers use the machine for dic- remove the cause of complaint, but if the tation purposes, and we recently heard of a nuisance is not speedily abolished a permayoung student of shorthand, who, instead of nent injunction will be issued. In the other paying someone for dictating to him while at case referred to, it appeared that another facpractice to increase his speed, made use of the tory similar to that of the defendant's was phonograph with entire success. The sugges- located in the neighborhood which used antion that the voices of our great men, and in- thracite coal and caused no annoyance; hence deed those of the world, be preserved in this it was found that the use of soft coal was not form, is one that appeals strongly to the im- a necessity to the practical management of agination and should be followed by all the plant, although a change to hard coal means. How inspiring, for example, would might entail some additional expense. It was it be for future generations to be able to hear therefore held that the facts sustained a conthe real voice of our strenuous President, long clusion of law that the defendant should be after he has been gathered to his fathers, or enjoined from continuing the conditions of the magic eloquence of his rival, William stated. These decisions are significant. They Jennings Bryan, of Choate, Root, Taft, and indicate that there may yet be hope for the innumerable other orators of national and Pittsburghers, and that the ditty which pokes international fame. The real uses of the fun at the soiled appearance of "Mary's Litmarvelous instrument are many and un- tle Lamb," after it had changed its habitat deniable. Too marvelous, indeed, is it, to be temporarily to the smoky metropolis of Pennmonopolized by the exponents of rag-time sylvania, will not always be apropos. ditties.

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Some new and important law was enunciThe granting of an injunction against sev ated by the Appellate Division of the Sueral copper smelting companies in Georgia preme Court of this State in the First followed more recently by a decision of the loss to adjacent residence owners, is significant Court of Appeals of this state in the case of reciprocal rights and duties of telegraph comMcCarty v. Natural Carbonic Gas Company, panies and the senders of messages thereby, that an action will lie to restrain a manu- in the case of Halstead v. Postal Telegraphfacturing company from using soft coal in its Cable Co. A judgment obtained by Halfactory when the use is unreasonable and stead & Company about a year ago against causes much discomfort and some financial the Postal Telegraph-Cable Company for an loss to adjacent residence owners, is significant error in the transmission of an of the trend of the courts of last resort in a peated" message has been reversed by the very important direction. In the Georgia Appellate Division, which holds that the percase, Mr. Justice Holmes, who wrote the son receiving a telegram is bound by the opinion, said the State of Georgia had a right terms and conditions the same as the sender. to demand that the air over it should not be It was not disputed that the message in quespolluted on a great scale by sulphuric acid tion was an unrepeated message, and the trial gas, that the forests in its mountains should judge charged the jury that as between the not be further impaired, and that its crops sender and the company this was a valid and orchards should not be injured from the and lawful limitation by contract, but same source. The opinion of the court was he charged that it did not limit the unanimous, and the court's declarations are rights of the plaintiff in this particunow the law of the land. An opportunity lar action so far as concerned the actual

damages sustained through the error of trans mission. The Appellate Court, in reversing the judgment, approved a decision of the Supreme Court of Massachusetts in a similar case, wherein it was said:

66

There is nothing in this regulation which tends to embarrass or hinder the free use of the telegraph, or to impose on those having occasion to transmit or receive messages any onerous or impracticable duty. If the defendant had been obliged to accept and transmit the message, without regulations, then it would assume its common law obligations, but having the right to make regulations, and it appearing that the sender did sign the blank provided by the company, and which contained the limitations above mentioned, it must be presumed that the company undertook the duty only as thus limited by its reasonable regulations, and whether the action is deemed to rest upon the contract of the sender, or to result from a breach of duty, the limitation upon the amount of damages | to be recovered being reasonable, the plaintiff has no standing to maintain this action unless he is the real principal in the transaction, and then only to the extent of the amount paid for the transmission of the message."

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Negligence and Contributory Negligence.

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accident occurred is not disputed, but the extent of defendant therefor is denied. The action has been the plaintiff's injuries and the responsibility of the tried twice. On the first trial the plaintiff recovered a verdict. The judgment entered thereon was versed by the Appellate Division and a new trial ordered, "upon the ground that the verdict of the jury was against the weight of the evidence," one of the judges concurring in the result, "only upon the ground that the finding of the jury that the defendant was negligent was against the weight of the evidence (Serano v. N. Y. C. & H. R. R. R., 102 App. Div. 621). On the second trial the plaintiff again recovered a verdict. On appeal from the judgment entered thereon the Appellate Division, by a divided court, reversed the judgment and ordered a new trial, "upon questions of law only, the facts having been examined and no error found therein" (114 App. Div. 684). The effect of such an order was considered by this court in Albring v. N. Y. C. & H. R. R. R. (174 N. Y. 179), in which case the court say: that the Appel

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late Division reached the conclusion after examining all the evidence that the jury were justified in accepting as true in all instances of conflict in testimony that which was most favorable to the plaintiff, and yet it could not permit the judgment to stand because that most favorable view of the testimony fell short of supporting the judgment."

This court, as said in the case last mentioned, can

RAILROAD CROSSING ACCIDENT TO CHILD OF TENDER review the questions of law that were before the Ap

YEARS.

NEW YORK COURT OF APPEALS. Decided April 2, 1907.

ANNIE SERANO, an infant, by MICHAEL SERANO, her guardian ad litem, appellant, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, respondent.

Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered May 1, 1906, which reversed an order of a trial term denying the motion for a new trial after a verdict in favor of the plaintiff and granted a new trial. The nature of the action and facts, so far as material, is stated in the opinion.

pellate Division. Our review is confined to such questions. The plaintiff is the child of poor parents, who, for three or four years prior to the accident, lived a short distance from the crossing where the accident occurred. She was an intelligent child, and had attended school for about one year prior to the accident. She had been accustomed to cross the tracks of the defendant's road without attendants, and to play with other little girls in the locality of the crossing. She had been told by both her father and mother that in crossing the railroad tracks she should be very careful and look up and down the tracks before crossing to see if a train was coming.

It was not negligence as a matter of law for plaintiff's parents to permit her to go into the street (Huerzeler v. Central C. T. R. R., 139 N. Y. 490). Her parents seem to have regarded her as possessing

Udelle Bartlett, for appellant; Henry Purcell, for sufficient discretion so that she could go to school respondent.

CHASE, J.-On the 29th day of December, 1902, the plaintiff was struck at the Willow street crossing, in the city of Oswego, by a locomotive attached to a passenger train owned and operated by the defendant. At the time of the accident she was less than six years of age. She brings this action to recover damages for her personal injuries. The fact that an

and upon errands and to play in the streets unattended. She had sufficient mental and physical capacity so that prior to the day in question she had avoided accidents. The plaintiff was not sworn on the trial and the record does not disclose why she was crossing the defendant's tracks at the time when the accident occurred. The mother testified that plaintiff left the house ten or fifteen minutes before

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the time when she was brought to the house after the that she looked both ways, and that when she came accident. At the crossing in question the defendant to the last track she looked the way from which the has east and west bound tracks. The general direc- train was coming and was then struck. Another wittion of the tracks is east and west and Willow street ness for the plaintiff, who saw the accident, testified crosses the tracks so as to make the southeasterly that after the east-bound train had passed about angle of the street line with the tracks about fifty-seventy-five feet the plaintiff looked east and started eight degrees. The locomotive that hit the plaintiff across the track and was then struck. The defendwas going west on the westbound, or northerly, track. ant's engineer and fireman and eleven other witnesses, The tracks east of the crossing curve sharply to the all of whom were on the train, with two exceptions, right, and there is a bank with fences and buildings and eight of whom were defendant's employees, testiadjoining the railroad tracks on the south. The fied that the bell on the locomotive was rung. curve of the defendant's road is such that with an plaintiff produced five witnesses who were in the otherwise unobstructed view the engineer sitting on vicinity of the crossing, who testified, in substance, the box on the right side of his locomotive cannot see that they were in a position where they could hear the crossing until within about forty feet of the same, the bell if rung and that they listened for it, but it and the fireman sitting on the box on the left side was not rung, and that no signal of any kind was of the locomotive, which is the inside of the curve, given. Other witnesses for the plaintiff testified that cannot see the crossing until within about one hun- they did not hear any signals. Eleven witnesses for dred feet of the same. It is not claimed that the the defendant, all but two of whom were upon the whistle of the locomotive was blown until a moment train, and a majority of whom were the defendant's before the accident, when it was blown at the same employees, testified that the train was running at a time that the emergency brakes were applied. The speed of from six to eight miles an hour. The plaindefendant claims that the bell had been ringing auto- tiff produced four witnesses, each of whom were in a matically since the train left the Oswego station, position where they could observe the train, and one about one-half mile east of the crossing where the of them testified that the train was running fifteen accident occurred. An east-bound train had passed miles an hour; one that it was running twenty miles over the southerly track of the defendant's road a an hour, and two that it was running from twenty moment before the accident. The engineer on the to twenty-five miles an hour. The train was running west-bound train testified that the locomotives of up grade, with only twelve to fifteen passengers, and the two trains passed about one hundred or two hun- the emergency brakes were fitted to all of the wheels dred feet east of Willow street, and other witnesses of the train and the train was stopped, as the jury confirm his estimate. The defendant claims that the could have found, in about two hundred and twenty plaintiff was not at the Willow street crossing, but feet from where the brakes were first applied. One that she was on the defendant's right of way, walk- other fact that the jury could have considered in ing between the rails on the west-bound track about determining the defendant's negligence and the plainten to twenty-five feet east of the crossing, and that tiff's freedom from contributory negligence relates to the engineer and fireman of the defendant's west- the steam and smoke from the east-bound train that bound train saw the plaintiff on the tracks as stated, it is claimed concealed the west-bound train. Defacing west, when their locomotive was within twenty fendant's engineer testified, in referring to his seeing "I couldn't see her sooner or twenty-five feet of the plaintiff, and that the train the plaintiff on track: was then stopped as quickly as possible, and that the because there was a very sharp curve there. The plaintiff, as she was stepping off the track, was curve and the approaching train-some steam from struck by the locomotive and thrown into Willow the approaching train-but the curve had the most to street. Two other witnesses for the defendant cordo hiding my view from her." And he further testiroborated the defendant's contention. Five witnesses fied: "I saw steam from the other engine, the eastfor the plaintiff testified that the plaintiff was on the bound engine, as I approached the Willow street easterly sidewalk of Willow street, going towards the crossing, and this girl; it settled; it blew across the crossing, and that when she arrived within a few west-bound tracks; it cleared up as we approached feet of the east-bound track she stopped and waited the girl." The baggage man, who, after the danger for the east-bound train to pass, and when it had signal was given, opened the door of his baggage car on the left hand side and looked towards the locomopassed so that the rear of the train was from twelve "Observed nothing on acto seventy-five feet east of the crossing she proceeded tive of his train, testified: across the tracks. The distance between the east and count of the smoke and steam escaping from the train west bound tracks is eight feet. One witness for the that we met there." A passenger, referring to the plaintiff, who saw the accident, testified that the east-bound train, said: "I didn't see the east-bound plaintiff walked slowly, and when she came to the train, because the steam and smoke came in between middle between the east-bound and west-bound tracks the trains." And another, that "the smoke and steam

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