In answering the defendant's first point, the court below defined the duty of the agent in respect of giving information to his principal of the sale of goods, and charged that a violation of this duty was negligence on the part of the agent. This was in accordance with the defendant's request and covers all the abstract law that is contained in the second and third points. These latter points were refused, because there was no evidence that the loss on the sale of the butter was occasioned by neglect, or that any loss was incurred by the failure of the plaintiffs to keep the defendant informed either for a whole year or for any unreasonable time. The counsel for the plaintiff in error has not pointed

dence of the particular matter in controversy, and therefore not admissible. The question at issue was whether the contract between the parties was a sale or a consignment. The defendant was a competent witness and could prove by his own testimony and by that of any other person having knowledge what the contract was. All this he did. Had he not been a competent witness, the case would have been quite different. It might well be that in such a situation the book entries would have been competent from the necessity of the case. But as he was competent and did testify, the necessity of introducing evidence of a secondary character no longer existed. In these circumstances the entries are nothing but the defend-out to us the evidence necessary to sustain these ant's unsworn declarations in writing of the points, and after carefully reading the testisame fact which he could and did prove by his mony, we fail to discover it. The trouble seems own oath. The case of Welsh v. Cooper, 8 Barr, to have been that the butter was not sold for a 217, is not applicable. There the very question long time after it was shipped on account of the at issue was whether a certain person was the very low price which prevailed, and the absence owner of a stock of store goods at a certain place of demand. When it was sold it was necessaand it was held competent to prove that a store rily at a loss, for which neither the plaintiffs business was carried on at that place, by that nor the foreign consignees were responsible. person, and with the goods there kept. Of When the account sales were received by the course the fact that books of account, showing plaintiffs does not appear, but the plaintiffs' sales of goods there and by that person were book-keeper, Shoester, testified that they were constantly kept in the name of that person, was sent to the defendant, who retained them, a fact proper to be proved as part of the res shortly after they were received. The witness, gesta. The same offer of proof was proper and Hobson, testified that he communicated confor the same reason in the case of Welsh v. stantly with the defendant from the time of Speakman, 8 W. & S., 257. But this does not shipment to the time of receipt of account, and touch the present case or the present question. that he kept him advised of the condition of the The utmost that could be proved by these en- English market. The case was tried chiefly tries could be and actually was proved by testi- upon the question whether the transaction was mony of a superior order, and therefore this a sale or a consignment. The evidence was inferior and unnecessary testimony was prop- conflicting, but the jury have determined, and erly rejected. upon sufficient testimony, that it was a consignment. As we see no error in the record, The judgment is affirmed. SHARSWOOD, C. J., and TRUNKEY, J., dissent.

The seventh assignment is not pressed nor could it be with any force, as it was a proposition to prove with the agent that he had no authority to do the act which he did do, and as a consequence of which the money of the plaintiffs was paid by them and received by him. The case of Mundorff v. Wickersham, 13 P. F. Smith, 87, goes further than this and holds that if an agent obtains possession of the property of another by making a stipulation or condition which he was not authorized to make, the principal must either return the property, or if he receives it, it must be subject to the condition upon which it was parted with by the former owner. In the present case, the defendant was allowed to prove by the agent all the facts which transpired when the receipts were given, and this was as far as he could go.

Circuit Court, United States.

Western District of Pennsylvania.
IN EQUITY.

ALLEGHENY BASE BALL CLUB v. CHAS.
W. BENNETT.

Bill to enforce compliance with agreement to enter into contract to give personal services.

Bill in equity by the Allegheny Base Ball Club, a corporation of Pennsylvania, against Charles W. Bennett, a citizen of Michigan, to compel the respondent to execute a formal conThe eighth and ninth assignments are not tract, to give his exclusive services as a base ball pressed and there is nothing in them. player to the complainant, during the base ball

It is hereby agreed, this 3d day of August, 1882, between the Allegheny Base Ball Club and Charles W.straint of trade. Bennett, that said Charles W. Bennett hereby promises and binds himself, that between the 15th and 31st days of October, 1882, he will sign a regular contract of the Allegheny Base Ball Club, a chartered company belonging to the American Association of Base Ball Clubs, which contract shall bind him to give his services as a base ball player to said club for the season of 1883, and shall bind said Allegheny Club to pay him the sum of $1,700 for and during such season of 1883, and in consideration of his agreement to sign such contract in October, the sum of $100 is now paid to said C. W. Bennett, the receipt of which is hereby acknowledged. Witness our hands and seals this 3d day of August, 1882.

A court of chancery will not decree the specific performance of a contract, where it would be impossible for the court to enforce the exe-equity will not interfere either actively to comcution of its decree, or where the literal performance, if enforced, would be a vain and idle

Pittsburgh Legal Journal.

ESTABLISHED 1853.

E. Y. BRECK,

N. S.. Vol. XIII.

0. S., Vol. XXX.

:

:

Editor.

No. 18.

PITTSBURGH, PA., DECEMBER 13, 1882.

Supreme Court, Penn’a.

THE BALTIMORE & OHIO RAILROAD COM

PANY v. WILLIAM SCHWINDLING.

A child between five and six years of age, not a passen

ger, without invitation from any one, went on the platform of the railroad company at a station and stood so near the track as to be struck and injured by a passing car. Held, that the child was a trespasser, the company owed him no duty and would not be liable for anything less than wanton or intentional injury.

Unless the duty of protection is owed, the omission to furnish it is not negligence, and no liability is incurred

therefor either to adults or children.

Gillis v. Pennsylvania Railroad Co., 9 P. F. Smith, 140;

Railroad v. Hummell, 8 Wright, 375, and Kay v. Pennsylvania Railroad Co., 15 P. F. Smith, 276, approved and followed.

five years, had followed them and was then standing upon the platform close to the edge nearest the track. The train had been cut some distance west of the station and the engine, with some cars destined for Osceola siding, had gone ahead, leaving the rear part of the train to drift down slowly in charge of a brakeman and flagman. The speed of this detached portion of the train as it approached the platform was not more than three or four miles an hour. This portion of the train was stopped alongside of the platform and there stood for ten minutes. The engine came back, coupled to the detached portion, “and pulled ahead easy." Willie, the plaintiff, standing close to the train, was at that moment, according to his brother's testimony, caught by a car stirrup or step, that was alleged to be projecting, was thrown under the cars and received the injuries complained of.

On behalf of defendant it was testified by the brakeman and conductor that the cars had been examined after the accident and found in perfect order; that in all their experience they had never seen a car stirrup bent out beyond the side of the car.

There was verdict for plaintiff for $2,000 and

Error to the Court of Common Pleas, No. 1, judgment on the verdict. of Allegheny county.

The plaintiff, William Schwindling, a minor, sued by his father to recover for the loss of a leg | and for other injuries done him by the cars of the defendant company.

For plaintiff in error, Messrs. Henry M. Hoyt, Jr., Welty McCullogh, Johns McCleave and Geo. Shiras, Jr.

Contra, Messrs. M. Swartzwelder and Frank Thomson.

Osceola, where the accident happened, is a small station on the line of the Baltimore & Ohio Railroad, a few miles east of McKeesport, consisting of a platform and store on one side of the tracks, and some tenement houses on the other. The store and tenement houses belong to a company operating coal mines in the vicinity. The platform, wholly situated within the railroad company's right of way, is the property of the railroad company, and is used for the purpose of receiving and discharging freight and passengers. The people living in the houses on the west or river side of the tracks trade at the store on the east side, and for this purpose cross the tracks of the railroad company. According to the testimony of the plaintiff's elder brother, a boy of fourteen years, and another witness, the mother of the plaintiff, on the afternoon of September 15, 1880, sent the plaintiff's two elder brothers, including the witness, to the store above mentioned to make some purchases. Finding the storekeeper busy they came back to the station platform to see a freight training, but he refused to do so. A passing car then approaching on its way east. When they reached the platform they found that their younger brother, the plaintiff below, a lad of

Opinion by GREEN, J. Filed November 20, 1882.

At the time the plaintiff received his injury he was standing on the platform of the defendant, so close to its edge that, according to the theory upon which the case was tried for the plaintiff, he was struck by a slight projection from the side of a passing freight car. He was not a passenger, he had no business of any kind. with the defendant or any of its agents or employees, in fact he was a boy about five or six years of age amusing himself, looking at the moving train. He was not invited upon the platform by any agent of the defendant, and he was not engaged in the act of crossing either the track or the platform, at the time of the accident. He was simply loitering upon the edge of the platform with no other purpose or motive than his own personal enjoyment. His elder brother, his principal witness, testified that he told him to come back from where he was stand

moving at a very slow rate of speed, not exceeding three or four miles an hour, with an iron step projecting a few inches from the side of the

It will be perceived that it is entirely immaterial, in solving this question, whether the person injured is an adult or a child.

There is no question of contributory negli gence involved in the inquiry, or essential to its consideration. If the defendant did not owe the duty of protection against the injury suffered in the particular case, the omission to furnish such protection is not negligence, and there is no liability on that ground. Take the present case as an illustration.

The only duty which is, or can be, claimed, as having been violated, was a duty to protect the plaintiff, when standing upon the edge of the defendant's platform, from injury, from a car-step projecting a few inches beyond the side of a slowly passing car.

car (as alleged by the plaintiff though denied | anything negligence which is less than a failby the defendant), struck him and pulled him ure to discharge a legal duty. If the law defrom the platform under the wheels of the car clares, as it does, that there is no duty resting so that he was run over and injured. In these upon any person to anticipate wrongful acts in circumstances was there any right of recovery? others, and to take precautions against such We think clearly not. We held, in the case acts, the the jury cannot say that a failure to of Gillis v. Pennsylvania Railroad Co., 9 P. F. take such precautions, is a failure in duty and Smith, on p. 141, that, "The platform of a rail- negligence." *** "Blowing the whistle of the road company at its station or stopping place locomotive, or making any other signal, was is in no sense a public highway. There is no not a duty owed to the persons in the neighbordedication to public use as such. It is a struct- | hood, and consequently the fact that the whistle ure erected expressly for the accommodation of was not blown, nor a signal made, was no evipas-engers arriving and departing in the train. dence of negligence." Being unenclosed, persons are allowed the privilege of walking over it for other purposes, but they have no legal right to do so." *** "Still even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner." Again, on page 143: "The plaintiff may not have been technically a trespasser. The platform was open; there was a general license to pass over it. But he was where he had no legal right to be. His presence there was in no way connected with the purposes for which the platform was constructed." *** "As to all such persons to whom they stood in such relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity or to give vent to his patriotic feelings. The defendants had nothing to do with that." Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held there could be no recovery although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers or upon business connected with the defendant. In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff. But there was no such duty because of the absence of the relation, and hence there was no right of action. The controlling feature of the inquiry in all such cases is, was there a duty to the plaintiff which was violated by the defendant? If there was not, there is no legal liability. This was essentially the distinction on which Railroad v. Hummell, 8 Wr., 375, was decided. On page 379, STRONG, J., said: "Yet a jury cannot hold parties to a higher standard of care than the law requires, and they cannot find

But how can any such duty arise out of such circumstances?

The plaintiff had no right to place himself in the position in which it was possible for him to be injured in such a manner, and the defendant was not bound to take precaution against such injury.

It is not denied that this would be true if the plaintiff were an adult, how then can it be otherwise than true as to a child? The absence of duty is precisely the same in either case, and the consequent absence of liability must be the same in both. It is quite true that young children can recover for injuries in circumstances in which adults cannot. But even children cannot recover unless there is negligence, and there can be no negligence without a breach of duty. In Kay v. Pennsylvania Railroad Co., 15 P. F. Smith, on p. 276, we said: "If there be no negligence on the part of the company, then the incapacity of the child creates no liability, and its injury is its own misfortune which it must bear."

In Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright, 300, where a child five years old, suddenly ran across the track in front of an approaching engine, and was struck and injured, we said, on page 303: "The engine in