534
The Green Bag
Negligence. Res Ipsa Loquitur— Employer's Liability. Wash. The doctrine of res ipsa loquitur is held, in La Bee v. Sultan Logging Co. 47 Wash. 57, 91 Pac. 560, 20 L.R.A. (N.S.) 405, to apply in case of injury to a servant through the alleged negligence of the master, where the facts eliminate blame on the part of the servant or his fellow servants, but show prima facie negligence on the part of some one. Nuisance. Mandatory Injunction to Quell Fire Which Has Become a Public Enemy. Pa. Within the city limits of Carbondale, Pennsylvania, a fire had been started near a coal mine by dumping hot cinders into an excavation. For some years the fire was so insignificant as to escape attention, but eventually it covered several acres and filled the entire mine. In an effort to check the flame an amount greater than the mine owner's capital stock was expended with no beneficial results. In McCabe v. Watt, 73 Atl. Rep. 453, a mandatory injunction was sought to compel the mine owner to extin guish the fire on the ground that it consti tuted a nuisance. The Pennsylvania Supreme Court held that if the fire ever was a nuisance in the legal sense it had long ago spread beyond any limitation, and should, in this advanced and dangerous stage, be treated as a public enemy against which the common inter ests of all citizens should be united and that the enforcement of an injunction would re quire the employment and supervision of a large force of men for a long period of time. This the courts would not undertake. Patents. Selden Patent on Gasolene Auto mobiles—A Pioneer Patent. U. S. In the United States Circuit Court for the southern district of New York, Judge Hough filed a decision Sept. 15 in the suit of George B. Selden and Electric Vehicle Company v. Ford Motor Company and C. A. Duerr & Co., 0. J. Gude Company, John Wanamaker and others, Sociiti Anonyme des Anciens Etablissements, Panhard & Levasseur, Andri Massenat, and Henry and A. C. Neubauer, which has been pending in the United States courts for several years, and in which 8,000 printed pages of testimony, comprised in thirty-two big volumes, were taken. The Court held:— "The statement of the complainants' posi tion seems sufficient to show that the subjectmatter of these suits is the modern gasolene automobile. The defendants are severally
the manufacturer, seller, and user of the Ford machine (a well-known American make), and the maker and importer of the Panhard, a celebrated and typical French product. If these defendants infringe, it is because the complainants own a patent so fundamental and far reaching as to cover every modern car driven by any form of petroleum vapor and as yet commercially successful. "If I have correctly apprehended it, there was room for a pioneer patent, and it must be held that on its face and in view of the art Selden's was such a patent. This means that Selden is entitled to a broad range of equiva lents." The cases will all be appealed. Procedure. Power of Court to Limit Number of Witnesses Called—Cumulative Testimony. R. I. Bearing upon the very important question how far the Court may legitimately go, in limiting the number of witnesses who may be called to testify on a particular point, in the interest of judicial expedition and court effi ciency, a decision was handed down by the Supreme Court of Rhode Island in July, in Campbell v. Campbell et al., in which the Court (per Johnson, J.) reviewed the authorities with much care, and said (reported in National Corporation Reporter, v. 39, p. 107, Sept. 9, 1909) :— "The appellant's counsel was forced either to close his case in rebuttal then and there [at 4.30 p. m., there being an evening session of the court of which he had not been noti fied] on the testimony which he had already put in, or name the witnesses whom he would call on the following day. The trial justice also told him that he should hold him pretty rigidly to his number of witnesses on the fol lowing day. We do not think that this was a proper exercise of judicial discretion. . . . "It is also urged that in any event his testi mony as to the mental condition of James Campbell would have been cumulative. Upon that point we think the language of the court in Ward v. Dick, supra, 45 Conn. 235, at page 237, 29 Am. Rep. 677, is entirely in point: 'We know no better rule than to allow the party holding the weight of evidence an-oppor tunity to bring it to bear upon the jury, when it concerns the real issue.' ... "We cannot say that the testimony of this witness outlined in his affidavit would have had no effect upon the jury, or that it might not have changed the result." The Court ordered a new trial.
