A more ancient reference to literature held to be libellous was in the case where the plaintiff had been stigmatized by the defendant as a "frozen snake, ' meaning that he had been guilty of base ingratitude.
INFANCY'. — The tenderness of most of the courts towards infants is illustrated by Chicago, etc. Ry. Co. •v Me Arthur, 53 Fed. Rep 464, where the syllabus is as follows : — "Some children playing near a railroad track within the limits of a town, upon hearing the whistle of an approaching train, placed pins upon the rail, and then ran into some bushes The persons in charge of the train intended to nuke a • flying switch,' so as to cut out several cars from the middle of the train, and for that purpose the train was cut in three sections, the conductor pulling the pin between the first and second section, and then immediately going to the rear of the first car of the second section to man the brake. After the first section had passed, the children ran out from the bushes, and one of them, while stooping to pick up the pins, was struck by the second section, the conductor being unaware of his presence. The place of the accident was within the limits of a street which, ac cording to the plat of the town, here crossed the track; but the street had not been opened for vehicles, and was only used by pedestrians, field, that on these facts the court properly refused to direct a verdict for defendant, for the failure to have a lookout on the front of the second section tended to show a want of proper care."
On the point of contributory negligence the court said • — "It is certainly not illegal for children or adults to en gage in what may be termed ' play; ' and if while so engaged need arises for going upon a street, they arc jus tified in so doing, provided due care is used in guarding against accidents Thus, if persons engage in playing ball at a place where such sport is permitted, and the ball happens to be thrown across or into a public street, cer tainly any one of the players, whether a child or adult, may go upon the street lor the purpose of getting the ball, without being deemed a trespasser. . . . The right to pass along or across streets or other highways is certainly not limited to those uses which pertain to business, as dis tinguished from pleasure or amusement; and therefore the mere fact that a person is engaged in what is called ' play ' at the time he goes upon a street does not necessarily make him a trespasser thereon."
This is quite in harmony with the hoop-rolling case in our last number. Again, in Sandford v Hestonville, etc. Ry. Co., Pennsylvania Supreme Court, 25 Atl. Rep. 833, it was held that where a child riding on the platform of a street car is of such tender years as not to be chargeable with negligence, and there is some evidence, although disputed, that the conductor approached for fare in a manner calculated to frighten him, so that he jumped and was injured, the case is
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for the jury. The conductor should approach not "like the rugged Russian bear," etc., but with a smiling countenance and soothing words!
NUISANCE — FISH-OIL FACTORY. — In Tuttle v. Church, 53 Fed. Rep. 422, it was held that the op eration of a factory for making oil and fertilizers from fish should not be enjoined on the petition of the owner ot a summer cottage distant a mile and a half therefrom, when the family of counsel insti gated, directed, and furnished money to carry on the suit; when there is no regular or serious pollution of the water, and the offensive odors have decreased by reason of improved processes so as to be seldom troublesome in the summer; when the cottager has lived in that vicinity thirteen years, and in his present house ten years, while the factory had been in opera tion twenty years; and when the granting of an in junction would inflict great injury upon the factory owners and many employés, while its denial would injure the cottager but little. Citing the oft-quoted language of Vice-Chancellor Bruce, in Walter v. Seife, 4 De Gex & S. 322: — "The inconvenience must not be fanciful, or one of mere delicacy or fastidiousness, but an inconvenience interfering with the ordinary physical comfort of human existence, and not merely according to elegant or dainty habits of living, but according to the plain, sober, and simple no tions among the English people."
So one who neighbors to Caliban may not reason ably complain that he " hath an ancient and a fish like smell." ELEVATORS. — In Lawrence v. Mycenian Co., .New York City Common Pleas (i Misc. Rep. 105), it was lately held that the failure of a landlord to fur nish proper elevator service to an upper tenant in a building provided with an elevator for the use of the tenants amounts to an eviction, and is a valid defence to an action for rent. The lease was of a loft (it does not appear how high up), and the only allusion to the elevator was in the words excepting from the demise "the hallway and the hatch and elevator ways which are for the common use of all the tenants." There was a covenant for quiet enjoyment This is a very important doctrine to upper tenants of "sky-scrap ers." The court say: — "But we are to assume the facts involved in the verdict; and they are, that the plaintiff retained charge and con trol of the elevator; that its use by defendant was part and parcel of the estate demised, and indispensable to its bene ficial enjoyment; that of such enjoyment the defendant was deprived by plaintiff's persistent mismanagement of the elevator and neglect to repair it; and that because he was so denied the beneficial enjoyment of the premises, the defendant abandoned them before the rent in suit fell due.
