and skill enough to comprehend them," but if LIABILITIES AND DUTIES OF he is not so possessed, it is not the carrier's fault. STREET RAILWAY COMPANIES WHERE CHILDREN ARE ON OR NEAR TRACKS. INSURANCE LIABILITY OF REINSURER ON ORIGINAL POLICY.-A very important English decision discusses the extent of the liability of the re-insurer on the original policy. The books-and especially the text booksare particularly bare of instances or statements relating to the subject of re-insurance. For that reason the recent judgment of the Judicial Committee of the Privy Council of England in the case of Australian Widows Fund Life Assurance Society v. National Mutual Life Association of Australasia, is the more welcome on this account. After coming before three courts in Australia, in the course of which seven opinions were delivered, four one way and three the other, the decision of the high court of Australia was eventually reversed by the Judicial Committee, and it was decided that the re-insurers were not liable. The Law Journal of London has the following to say of that decision: "The whole subject of re-insurance is difficult. In some instances it has been laid down that there is a general rule to the effect that a re-insurer may rely on any defense which the original insurer might have relied on in contesting the claims of the assured. Elsewhere the general rule is stated to be the other way -that the re-insurer is bound by a settlement bona fide entered into between the assured and the original insurer. There appears to be no general rule on the subject. A policy of reinsurance may embody a contract of indemnity merely, or it may embody an independent contract of insurance-it is really a matter of construing the particular policy. In the present case the contract was held to be one of insurance in the sense usually attached to life insurance, and a good deal turned on the manner in which the policy of re-insurance incorporated by reference the terms of the original policy. The original policy was based on certain statements of the assured which turned out to be false to his knowledge. Although the respondents considered it better to pay the claim rather than contest it, the appellants were held entitled to contest the claim against them under the re-insurance on the footing of the original policy being void by reason of the mis-statements, and they succeeded in showing that the original policy was void and the re-insurance policy also for the same reasons." Preliminary Statement.-One of the most frequent subjects of litigation in the trial courts to-day is that of the liability of street railway companies to persons who have been injured either while the relation of carrier and passenger exists or as a result of the operation of the cars through the streets and highways. Of the latter class of cases a large proportion is the result of injuries to children and others who are under some mental or physical disability. In our large cities where many families are housed within a small area and the numerous children do not possess the advantages which the youthful population in the smaller suburban towns possess of having some convenient field or playground where they may enjoy their various games, they are of necessity, to a great extent, confined to the use of the streets, fraught with their various perils not only to adults in the exercise of vigorous, mental and physical powers but also to those whose lot in life has not been so fortunate in these respects and especially to the youth who are non sui juris and who are limited to the streets for a playground. Owing to the frequent injuries sustained by the latter much hostility to street railway companies has arisen. Especially in some of our metropolitan centers do we find this condition of affairs and it is frequently manifested in some sections thereof by an exhibition of threatened, and in some cases of actual, violence against the employes who may be in charge of the car at the time of the unfortunate occurrence, especially where the victim is a child. This hostile feeling exists not only among the more ignorant classes of the community but in some cases extends to sections where the seeds of education and good citizenship have been sown and where we do not expect to find hysterical manifestations of feelings. This under sidewalk much nearer to the track. In such a case it is the proximity of the sidewalk to the track which bears upon the question. of negligence in the operation of the car and not the broad statement that danger need not be anticipated where the child is playing upon the walk. So it is with other factors. Each case must depend upon the circumstances and conditions surrounding it and the question of negligence is to be determined by these circumstances and con current which often rises to the surface on such occasions is also frequently found to have influenced the verdict of the jury, either in their determination of the question of liability or upon the amount of the verdict rendered. It is doubtful whether there is any particular branch of the law respecting which more judgments have been reversed than in that relating to the liability of street railway companies for injuries to persons using the public highways. It is of value, therefore to consider the few gen-ditions and what a reasonably prudent man eral principles which are controlling in this class of cases having special reference to injuries to children. Degree of Care Required.-Various expressions of the courts may be found in regard to the degree of care required where children are upon the streets, expressions which in fact tend rather to confuse than to clarify. Thus we find in different opinions statements that "ordinary care," "high degree of care," "highest degree of care," must be used. Notwithstanding that these various statements as to the degree of care required may each be a correct expression of the obligation inforced yet they all practically amount to this that the person in control of the car should exercise such care as a reasonably prudent man would exercise if placed in the same situation and surrounded by the same conditions. What would be the requisite degree of care under one set of circumstances would not be under another. What would be reasonable conduct on the part of a motorman where his car is proceeding through a wide thoroughfare with children playing upon the sidewalk many feet distant would not satisfy the standard where the street is a narrow one and the (1) Hanley v. Ft. Dodge Light & Power Co., 133 lowa 326, 107 N. W. 593, 110 N. W. 579, 4 St. Ry, Rep. 304; United Rys. & Elec. Co. v. Carneal, 110 Md. 211, 72 Atl. 771; Galveston City Ry. Co. v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639. (2) Bergen County Traction Co. v. Heitman, 61 N. J. L. 682, 40 Atl. 641, 11 Am. & Eng. R. Cas. (N. S.) 286, 4 Am. Neg. Rep. 511. (3) Murray v. Patterson Ry. Co., 61 N. J. L. 301, 39 Atl. 648. would have done if placed in the same situation. It can readily be seen from the foregoing. that it is not necessary that the act should be wanton or willful in order to create a liability for the injury sustained, though where the act was of such a character that it can be so characterized the jury might properly consider this in determining the question of damages. Duty as to Keeping Car Under Control and Stopping.-Where children are upon the street through which a car runs the law imposes upon the motorman the duty of keeping the car under such control as a reasonably prudent man would exercise under the same circumstances and conditions. What would be a reasonable rate of speed and degree of control consistent with the proper degree of care required in some cases might, under a different state of facts, amount to negligence. Bringing the car to a full stop may, under certain conditions, be the only course which fulfills the requirement set while in others it is only necessary that the car should be under such control that it may be brought to an immediate stop. (4) Heinzle v. Metropolitan St. Ry. Co., 213 Mo. 102, 111 S. W. 536. (5) Sheffield Co. v. Harris (Ala.), 61 So. 88; Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, 63 N. E. 907, 58 L. R. A. 270, affg. 95 Ill. App. 314; Danna v. City of Monroe, 129 La. 138, 55 So. 741; Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106; Simon v. Metropolitan St. Ry. Co., 231 Mo. 65, 132 S. W. 250, 140 Am. St. Rep. 498, 7 St. Ry. Rep. 158; Cyston v. St. Louis Tr. Co., 205 Mo. 692, 104 S. W. 109; Meeker v. Metropolitan St. Ry. Co., 178 Mo. 173, 77 S. W. 58, 2 St. While no hard and fixed rule can be stated as to the exact rate of speed at which a car may be run or as to the degree of control which must be exercised where children are in the street yet there is a rule which may be applied equally well in every instance and this is that the motorman must operate his car at that rate of speed and have it under such control as a reasonably prudent man would if placed in the same situation. The question of negligence must in each case be determined by the facts and circumstances as they existed at the time of the accident. Consideration must be given to such factors as the number of children upon the street at the time, their nearness to the tracks and, if upon the sidewalk, then the distance from there to the tracks, whether they were standing still at the time or running back and forth and if so in what direction with regard to the car. The age of the child injured may also be a fact bearing upon the question of negligence and contributory negligence. In view of these various elements the conduct of the motorman is to be weighed and the liability of the company is to be determined. If it appears that, taking all the factors into consideration, he acted as a reasonably prudent man would have acted under the same conditions, then no recovery should be allowed. Motorman Cannot Speculate as to Conduct of Child.-It is not within the province of the motorman where a child is in a position of danger to speculate as to what the conduct of the latter may be. He has no right to assume, under such circumstances, that the child will abandon such position and proceed to one of safety and, regardless of the apparent peril, to continue to operate his car, acting upon such as Rys. Rep. 537; Wagner v. Metropolitan St. Ry. Co., 160 Mo. App. 334, 142 S. W. 463; McFarlane v. Elmira W. L. & R. Co., 136 App. Div. (N. Y.) 194, 120 N. Y. Supp. 292; Totarewicz v. United Traction Co., 220 Pa. St. 560, 69 Atl. 995, 6 St. Ry. Rep. 770; Galveston City Ry. Co. v. Hanna, 34 Tex. Civ. App. 608, 79 S. W. 639; Mowrean v. Eastern Wisconsin R. & L. Co., 152 Wis. 618, 140 N. W. 309. sumption. In other words, his belief as to what the child will do will not relieve him of his duty to exercise the required care. and control over his car. Duty of Motorman as to Keeping Lookout and Giving Warning.-It is the duty of the motorman to keep a careful lookout at all times to see whether a person is upon the tracks or by reason of his approaching them is in a position of peril. This applies alike in the case of adults and of children.' The motorman is stationed upon the front platform of the car. It is his duty to manage the appliances provided for the propulsion of the car through the streets. A proper performance of that duty carries. with it the obligation to exercise his powers of observation for the purpose of discovering whether children are in a perilous position upon or near the tracks. For the purpose of warning them the car is also usually equipped with a gong which it is the duty of the motorman to sound under such circumstances, as where a school is being dismissed and a large number of children are coming upon the street." This placing of the gong upon the car may also be regarded as a recognition by the company of the duty to keep a careful lookout. Child Suddenly Running Towards Track. -Accidents frequently occur as the result of a child suddenly leaving a place of safety (6) Citizens' St. Ry. Co. v. Hamer, 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778; Simon v. Metropolitan St. Ry. Co., 231 Mo. 65, 132 S. W. 250, 140 Am. St. Rep. 498, 7 St. Ry. Rep. 158. (7) Hanley v. Ft. Dodge Light & Power Co., 133 Iowa 326, 107 N. W. 304, 110 N. W. 579, 4 St. Ry. Rep. 304; Louisville Ry. Co. v. Bryant, 142 Ky. 159, 134 S. W. 182; Band v. Citizens Ry. Co., 146 Mo. 265, 48 S. W. 781; Bergen County Traction Co. v. Heitman, 61 N. J. L. 682, 40 Atl. 641, 11 Am. & Eng. R. Cas. (N. S.) 286, 4 Am. Neg. Rep. 511. (8) Murphy v. Derby St. Ry. Co., 73 Conn. 249, 47 Atl. 120; Consolidated City & C. P. R. Co. v. Carlson, 58 Kan. 62, 48 Pac. 635; Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106; Butler v. Metropolitan St. Ry. Co., 117 Mo. App. 354, 93 S. W. 877; Byrnes v. Brooklyn H. R. Co., 148 App. Div. (N. Y.) 794, 133 N. Y. Suppl. 243: Hoon v. Beaver Valley Traction Co., 204 Pa. St. 369, 54 Atl. 270. (9) Consolidated City & C. P. Ry. Co. v. Carlson, 58 Kan. 62, 48 Pac. 635; Hoon v. Beaver Valley Traction Co., 204 Pa. 369, 54 Atl. 270. and darting upon the tracks. While a motorman may not speculate as to the course a child may pursue yet where he sees one at such a distance from the track as to be in no danger and there is no apparent intention of the child to abandon that position, a failure to run the car at the same rate of speed as where one is dangerously near the track or to have the car under the same degree of control as would be required in the latter case will not constitute negligence. 10 Contributory Negligence of Child.—The rule ordinarily stated as to the degree of care required of a child to free itself from contributory negligence is that it should exercise such a degree of care as an ordinarily prudent child of like years and inteligence would under the same circum (10) Perryman v. Chicago City Ry. Co., 242 Ill., 269, 89 N. E. 980, affg. 145 Ill. 187; Cloud v. Alexandria Elec. Rys. Co., 121 La. 1061, 46 So. 1017, 6 St. Ry. Rep. 303; Rollo v. City Elec. Ry. Co., 152 Mich. 77, 115 N. W. 727, 15 Det. Leg. N. 148; Graham v. Consolidated Traction Co., 64 N. J. L. 10, 44 Atl. 964; Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109, 81 Am. St. Rep. 871. (11) Di Prisco v. Wilmington City Ry. Co., 4 Pennew. (Del.) 527, 57 Atl. 906; Indianapolis St. R. Co. v. Schomberg, 164 Ind. 111, 72 N. E. 1041, 3 St. Ry. Rep. 146; McLaughlin v. New Orleans & C. R. Co., 48 La. Ann. 23, 18 So. 703; Colomb v. Portland & B. St. R. Co., 100 Me. 418, 61 Atl. 898, 4 St. Ry. Rep. 11, 19 Am. Neg. Rep. 11; Burns v. Worcester. Consol. St. R. Co., 193 Mass. 63, 78 N. E. 740, 5 St. Ry. Rep. 454; Wise v. St. Louis Transit Co., 198 Mo. 546, 95 S. W. 898, 5 St. Ry. Rep. 611. (12) Grealish v. Brooklyn Q. C. & S. R. Co., 130 App. Div. (N. Y.) 238, 114 N. Y. Supp. 582, affd. 197 N. Y. 540, 91 N. E. 1114; see also Cleveland C. C. & St. L. Ry. Co. v. Miles, 162 Ind. 646, 70 N E. 985. SOLVING THE PROBLEM OF REFORM IN PROCEDURE. With the same joy that one lost in the blackness of midnight, greets the rising of the sun, so are we inclined to rejoice at the prospect of an early solution of the vexed problem of reforming procedure, a problem that has disturbed lawyers and perplexed legislatures for nearly a century since the time when English jurisprudence first began to emerge from the nightmare of common law technicalities. David Dudley Field led the first determined and successful assault on the fabric of common law procedure, but so resistant was this wonderful system that it continued to live on, even in those states where it was said to have been stamped out, and it infected the new code rules with its own unbending and unyielding severity until the last state (code procedure) is worse than the first. Ever since Mr. Field tried his hand at the problem many others, far less capable than Mr. Field to handle the problem, have rushed in where angels have feared to tread and proposed changes and panaceas, only to witness their complete failure and often only to leave the problem more complicated than before. The New York Code, with over 2,000 statutory rules, is the hideous hobgoblin of code procedure used so often to scare legislatures, bar associations and laymen. from any further tinkering with the subject of procedure. Five years ago Mr. Thomas W. Shelton first proposed his plan for reforming procedure to the standing committee of the American Bar Association. It was not at that time well received, and the writer well remembers how Mr. Shelton drew him and others into a conspiracy to begin a campaign of education among the lawyers of America and of the members of the American Bar Association in particular. The idea to be cul tivated was that procedure was not a matter of substantial right and, therefore, not a proper subject for statutory legislation. That it did not even concern the remedy, but was merely a set of rules regulating the court in applying a remedy given by the statute and that these rules ought to be made by the courts and not by the legislatures. For, he argued, if made by the latter, the court cannot ignore them and thus they become technicalities impeding justice. But if they are mere rules of court, they do not constitute substantial rights of the parties, and being elastic, the court can accommodate them in each case to serve the ends of justice. This idea we have pressed forward in these columns with as much enthusiasm as we possess. Our personal association with Mr. Shelton has inoculated us to some extent with the same germ of irrepressible optimism, with respect to the ultimate success of this idea that possesses Mr. Shelton and which led him to witness the complete success of his idea at the last meeting of the American Bar Association at Montreal, when the Association indorsed his program by a large majority, and President W. H. Taft placed in his hands, as chairman of a special committee, the duty of pressing the new propaganda for reforming procedure to a successful conclusion. The success of the English Judicature Act in practice and of the new Federal to regulate pleading, procedure, and practice on the common-law side of the Federal courts. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court shall have the power to prescribe, from time to time, and in any manner, the forms and manner of service of writs and all other process; the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving process serving process of all kinds; of taking ing and obtaining evidence; drawing up, entering, and enrolling orders; and generally to regulate and prescribe by rule the forms for the entire pleading, practice, and procedure to be used in all actions, motions, and proceedings at law of whatever nature by the district courts of the United States." In the farthest reach of Mr. Shelton's vision is the adoption by the United States Supreme Court of an ideal code of rules administering justice in federal and law courts. After the system has been thoroughly tried and tested in the federal courts, the idea is that each bar association shall then endeavor to persuade its own legislature to quit tinkering with the subject of procedure and confer absolute authority to make rules governing procedure on its highest appellate court. Mr. Shelton's scheme then includes an annual conference of state and federal judges, from whose interchange of ex equity rules really hastened the adop-periences will finally result, not only in a tion of this new idea of judge-made rules of procedure more than any other outside contributory influence. The first act of Mr. Shelton's committee was to draw up a bill repealing section 914 of the U. S. Revised Statutes and a bill known as House Bill No. 133, which contains the germ of the new idea as follows, to-wit: "A bill to authorize the Supreme Court to prescribe forms and rules generally more perfect system of procedure, thoroughly elastic and simple, as rules of court must necessarily make it, but practically uniform as well, not only in all the state courts, but between state and federal courts as well. Surely a dream like this is worthy of the best efforts of any man's whole lifetime. It seemed to us like a dream when we first heard of it, but it has been more than a dream ever since we learned to grasp the soundness 1 |