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'of "imminent danger" and it is the duty of drivers and motormen to assume that he may not get out of the way as an ordinary pedestrian would.
Regulations By Gas Companies.—The Supreme Court of Kansas declares that a gas company which accepts the terms of a franchise ordinance expressly providing that a certain specified rate shall not be exceeded, and authorizing the shutting off of gas from any consumer in arrears for a longer period than fifteen days, has no right to require a $5 deposit or to add a penalty of 5 cents a thousand cubic feet for non-payment by a certain time in the month.8 Previous judicial ruling on the matter of regulations and charges have involved only the reasonableness of regulations by municipalities or other public service corporations, and not, as in this case, the sole matter of contract right. In a general way the law is settled that such companies are required to supply all patrons without partiality or discrimination, and may make reasonable regulations to insure full and prompt payment, although the courts have differed somewhat as to the reasonableness of certain means employed. However, in one Kentucky case where the contract between the city and the company provided that private consumers should be supplied with gas at a rate not to exceed $2 a thousand cubic feet, it was held that the company had no right to require payment of meter rent in addition thereto. Evidence of usage so to do was held inadmissible, such usage being inconsistent with the contract.9 In another case in the same State10 where the charter fixed the rates to be charged, an attempt to uphold a meter rate was frustrated by the Court. In Alabama it is held that a gas company whose rates are fixed by the city cannot charge a meter rent when consumption does not reach a certain limited amount each month.11 In New York12 the Supreme Court decided that under a statute providing that no gaslight corporation should charge or collect rent on its meters in either a direct or indirect manner, it was unlawful to make or enforce a service charge to the consumer based on the capacity of the meters which it called a minimum gas service bill, which meant that in ease of a consumer who.did not use up to a certain limit of gas a month a charge would be made outside of that amount fixed for the gas itself. At the close of the opinion it was suggested that the charge was voluntarily fixed by agreement, and that it could not have been forgotten when
this was done that some people would take so small a quantity of gas that it would make their business undesirable and unprofitable, and "presumably, as a condition of securing from the municipality certain rights and privileges, a schedule of rates was adopted which, taking into account the entire business, would yield adequate returns in the way of profits." In the principal case the Court says:
"The familiar means used by public service companies furnishing gas, water, or electricity to secure prompt payment are the requirement of certain deposits, a charge for meter service, a minimum charge, even when no product is used, a penalty for non-payment, and the shutting off of the supply. When the gas company made its contract with the city, it was doubtless familiar with these means ordinarily employed to insure the collection of a legal or proper charge, but the only one of these mentioned in the ordinance was the provision that the company should have the right to shut off all gas from any consumer in arrears for a longer period than 15 days. No mention was made of a deposit, a minimum charge or a penalty for non-payment. ... It made a contract with the city and accepted its franchise on a basis of charging its consumers no more than the rate specified. By requiring a deposit of $5 from each patron a fund would be created the interest on which would be of value, adding materially to the income arising from the contract rate, and, of course, an .addition of 5 cents a thousand for non-payment at a certain time" in the month is plainly an additional charge."
Killing Animal In Self-defense.—In State v. Ward13 the Supreme Court of Iowa decides that one charged with killing deer in violation of the statute law of that State may show in justification that a deer, when killed, was on his premises, destroying his property. The Iowa statute seeks "to establish title in the State to all wild game, whether dead or alive." The Supreme Court of Iowa says that "this title was fully recognized by the defendant at every step. No attempt was made by him to appropriate or conceal the carcass of the slain deer. On the contrary, he immediately notified the public authorities and tendered the carcass to the appropriate officer." The opinion of the Court continues:
"It will be noted that the deer was killed not only while upon the defendant's premises, but while he was actually engaged in the destruction of the defendant's property. Giving the testimony the fullest credence, the deer was one of great voracity. He was capable of doing, and was threatening to do, great injury to defendant's property. By way of analogy we may note that the plea of reasonable self-defense may always be interposed in justification of the killing of a human being. We see no fair reason for holding that the same plea m»y not be interposed in justification of the killing of a goat or a deer. The right of defense of person and property is a constitutional right (art. 1, sec. 1, Const. Iowa), and is recognized in the construction of all statutes. If in this case it was reasonably necessary for the defendant to kill the deer in question in order to prevent substantial injury to his property, such fact, we have no doubt, would afford justification for the killing (Aldrich v. Wright, 53 N.
H., 398, 16 Am. Rep., 339). We do not presume to pass upon the weight of the evidence tending to prove the fact of reasonable necessity. It is sufficient to say that the evidence would have sustained such a finding if made by the trial court. The case was tried below on the theory that such defense was not available." It will be noted that the act of killing, as contended by defendant, was wholly defensive and preventive. Whether a deer may be lawfully killed today by way of retaliation for the damage wrought by it yesterday, or whether it may be so killed by way of reprisal for damage wrought or threatened by other deer, are questions not involved herein, and we do not purport to pass on them."
Proximate Cause Op Injury.—In a late ease in Washington it was alleged that the defendant, through its agents or employees, left certain dynamite caps exposed at a place on its premises that was frequented by small children, and there was no evidence that the defendant ever objected to their presence. There was no danger sign anywhere about the plant except on the door of the machinery building. The explosives were habitually kept in a careless manner in a clay pit, guarded by nothing more substantial than a wooden door, which was never locked.
"On or about the 1st day of April, 1913, Eric Hilton and Ray Martin, two boys who were then attending the public school, went over to the defendant's brickyard after school, one of them said, looking for lizards in the soil pit. They found in one of the buckets of the elevator, used for hoisting soil from the pit, near the bottom, a partly filled box of dynamite caps. These they took and hid, and on the next day carried some of them to school. There was evidence tending to show that while these two boys and the plaintiff, Jesse Mathis, then a boy about eleven years old, were running and playing together on the school ground one of the caps fell from the pocket of either Ray Martin or Eric Hilton, probably the latter, and was picked up by the plaintiff, who said he saw it before it struck the ground. He carried this cap for a few days in a pocket of his overalls, showing it to no one. He did not know what it was. On Saturday the plaintiff's mother washed these overalls and removed the cap with a large number of other trinkets from the pockets, placing them on a desk in the sitting room. The plaintiff, finding it there, picked it up and undertook to pick the substance out of it with a hairpin, when it exploded, mutilating the thumb and three fingers of his left hand and injuring his left ear, resulting in the loss of the fingers and thumb and a permanent impairment of his hearing."
The action was for personal injuries, and the Supreme Court of Washington reverses a non-suit granted to the defendant. It was held that a question was presented for the jury whether the acts of either of the boys, Ray Martin and Eric Hilton, or of the plaintiff's mother, amounted to an "independent, intelligent, intervening, efficient factor, interrupting the chain of causation," so as to relieve the defendant, or whether the defendant's negligence was the proximate cause of the injury. The Court said:
"Whether, prior to the time when the cap which caused the injury came into plaintiff's possession, Eric Hilton knew that such caps could be exploded by any other means than by a fuse, and appreciated their dangerous character, were questions of fact to be determined from the evidence. They cannot on this evidence be determined by the court as a matter of law. Considering all of the evidence bearing upon the subject, it is capable of the inference that he knew that dynamite caps were dangerous, but did not know, or at least did not appreciate, the extent of their dangerous character. The evidence is capable of the reasonable inference that he did not know that they could be exploded by concussion or in an accidental manner without the aid of a fuse.
"It is equally clear that the act of appellant's mother was not an independent, intervening, efficient cause. In considering the motion for a nonsuit, we must assume that she told the truth. She testified in substance that when she took the playthings from the boy's pocket she noticed the cap, and at first thought it was a ferule from a pencil, but concluded it was too small; that she noticed the cap, because it was bright and new and something out of the ordinary; that she had never seen a dynamite cap prior to that time, and carelessly laid it on the desk with the other things, 'not dreaming of its being a dynamite cap.'
"The respondent's primary negligence, which we have seen was a question for the jury, consisted in abandoining this cap in such manner that it was likely to fall into irresponsible hands, thus setting in motion a chain of causation from which might have been reasonably anticipated just such an injury as actually resulted. To say that this chain was broken as a matter of law, by the unwitting failure of the mother to interrupt it, is to lose the logical perspective and take a distorted view of the relative importance of the incidents. It would be to eclipse the duty of one who knows of the dangerous character of an agency to control it, by magnifying the innocent failure of another to imagine a danger of which she had no knowledge into a positive duty to know and avoid it. It would be to miss entirely the basic principle of the exercise of reasonable care, which measures the duty by the magnitude of the danger reasonably to be anticipated by one possessed of the knowledge necessary to foresee it."
Authorities from other jurisdictions are cited which tend to support the present decision, and it is laid down that courts "should not look too narrowly for independent intervening causes where the negligence is in the use or care of extremely dangerous agencies and the disastrous results of such negligence might reasonably be anticipated."14
Mistake As To Person Contracting.—The three cases where mistake prevents the formation of an agreement are said to be first where it is regarding the nature of the transaction, second where it is concerning the person with whom it is made, and third, where it is concerning the subject matter of the proposed agreement.15 A recent application of the second of these cases is found in the decision of the Court of Appeals of Maryland, that a buyer who in ordering goods from the agent of the seller, an individual trading in a company name in another State, is misled by such agent,
"Mathis v. Granger Brick Co., is Lawson Contr. § 209 et seg. 143 P. 3.
on inquiry, to believe the seller is a company or corporation extensively engaged in manufacturing the goods which, however, the seller only bought and sold, must be held to have intended to contract with the alleged corporation, and hence is not bound.18 The Court says: "In the ease at bar the Sisters who represented the defendant never knew or heard of Reuben R. Kusnitt. but thought they were contracting with and intended to contract with a company or corporation engaged in manufacturing goods of the kind they ordered. They had in view a definite person with whom they intended to contract; and, as there was no such person or company, there was no contract. This is not the case of dealing with an agent, supposing him to be acting for himself. Holstein represented that he was acting for a company or corporation which in fact did not exist,"17 The well-known English and American cases of Boulton v. Jones and Boston Ice Co. v. Potter18 are illustrations of the rule.
New Trials For Newly Discovered Evidence.—It has been well said that it is a matter of absolute necessity, that courts should not incline toward granting motions for new trials on the ground of newly discovered evidence, for if the issues could be fought out afresh whenever new evidence of an unimportant character or what is merely cumulative is discovered, there never would be an end of litigation. The authorities show that it is not sufficient that the new evidence, had it been offered on the trial, might have changed the verdict. According to the weight of authority, it must be sufficiently important to make it probable that a different verdict will be returned on another trial. According to some authorities, the evidence must be of a decisive or conclusive character, or such as to render a different result reasonably certain.
In Allen v. Pearson,TM the Supreme Court of Errors of Connecticut illustrates the reluctance of the Court to grant a new trial if the newly discovered evidence is plainly or even substantially cumulative. A verdict had been recovered by a man against a woman for damages sustained by him while he was riding a motorcycle through collision with her automobile. It appeared that the plaintiff at the time of the collision had room to turn to the right and thus probably avoid it and that he was looking down at his engine while riding. A new trial was sought upon the ground of newly discovered evidence, the substance of which was that plaintiff shortly before the accident, was seen upon another street some distance from the place of the accident in an intoxicated condition, that he
'c School Sisters of Notre Dame, is123 Mass. 28. 93 A. 928. is94 AU. 277.
"2 H. & N. 564.