358 HARVARD LAW REVIEW. injury. Held, that the negligence of the parent is imputable to the child so as to pre- vent recovery. Juskowitz v. Dry Doer, etc. R. R. Co., 53 N. Y. Supp. 992 (Sup. Ct., Trial Term, N. Y. Co.). South Covinfiton, etc. R. R. Co. v. Herrklotz, 47 S. W. Rep. 265 (Ky.), contra. There is a direct conflict of authority on this point. Some jurisdictions hold that the parent or guardian is the agent of a child non sui juris, and in respect to third persons the contributory negligence of the parent or guardian must, on the theory of agency, be imputed to the child. Ilartfield v. Roper,2i Wend. 615; Wright v. Maiden, etc. R. R. Co., 4 Allen, 283. The relation between the child and the parent, however, cannot be that of principal and agent, as all the essential elements of agency are wanting, the child having no control over the acts of the parent, and no right to remove him from power or appoint another in his stead. The better opinion, there- fore, seems to be that the parent's negligence should not be imputed to the child, and he should not be precluded from recovery against one tort feasor, simply because others have contributed to cause the injury. Newman v, Phillipsburg Horse Car Co., 52 N. J. Law, 446; Robinson v. Cone, 22 Vt. 213. Torts — Malicious Prosecution of Civil Suit. — /i'"^/^, that an action for the malicious prosecution of a civil suit will not lie where there has been neither arrest of person, nor seizure of property, nor other special injury. Smith v. Michigan Buggy Co, 51 N. W. Rep. 569(111.). The question was squarely before the Illinois court for the first time, and after a full examination of the authorities a decision was reached which is probably contrary to the weight of American judicial opinion. Clossur v. Staples, 42 Vt. 207 ; McCardle V. McGinley, 86 Ind. 538. The authority in accord with the principal case, however, is strong. Wetmore v. Mellinger, 64 Iowa, 741 ; Muldoott v. Rickey, 103 Pa. no. The latter decisions must be put on the broad ground of public policy, and on that ground, it seems, ought to be supported. Allowing the action tends to increase useless and vexatious litigation, and one who honestly seeks redress through legal means should not be subjected to the probability of incurring another suit as a penalty for failure in his own. The successful defendant in a civil suit maliciously prosecuted suffers slight damage beyond the expense of the suit. He is reimbursed for this by way of costs, and if, as in most American jurisdictions, these do not cover his entire expense, that is a proper case for legislative action. Torts — Private Action for Public Nuisance. — The defendants, a railroad company, were required by statute to maintain a draw in a certain bridge. Through the defendants' negligence, the draw fell and the plaintiff's ship was delayed sev- eral days, for which this action is brought. Held, that the plaintiff can recover for the delay. Piscataqua Navigation Co. v. New York, etc. R. R. Co., 89 Fed. Rep. 362 (Dist. Ct., Mass.). To entitle a person to bring a private action for a public nuisance, he must show that he has suffered special damage. The rule is often laid down that such special damage must differ in kind, and not merely in degree, from that which the rest of the public suffers. Shaw v. Boston 6^ Albany R. R., 1 59 Mass. 597 ; Houck v. Wachter, 34 Md. 265. It seems more in accordance with public policy, which must be the ultimate reason for allowing recovery in such cases, that if the plaintiff can show substantial damage he should be allowed to recover, even if the rest of the public have suffered the same kind of damage, though in an inappreciable degree. This is substantially the rule laid down in the principal case, and it certainly seems less artificial, and open to fewer objections, than the other. Francis v. Schoelkopp, 53 N. Y. 152; Mayor v. Alexandria Canal Co., 12 Pet. 91. Torts — Railroads — Duty to Trespassers. — .^^/a?, that employees in charge of a train passing through a city must keep watch for trespassers on the track. Chesa- peale, etc. Ry. Co. v. Perkins, 47 S. W. Rep. 259 (Ky.). The decisions on this point are in direct conflict. It has been held that employees of the railroad are under no duty toward the trespasser on the tracks until he has been discovered. Wabash, etc. R. R. Co. v. Jones, 163 111. 167 ; Palmer v. Northern, etc. R. R. Co., 37 Minn. 223. There is abundant authority, however, in accord with the principal case, imposing on such employees the duty of keeping a lookout for ties- passers in inhabited neighborhoods where they may be expected. Whalen v. Chicago, etc. R. R. Co., 75 Wis. 654; South, etc. R. R. Co. v. Donovan, 84 Ala. 141. In Ohio, however, the court has gone a step further, and adopted what commends itself as the logical position. Here the rule of due care under the circumstances is applied to this case as to others, and holds that the engineer, consistently with his paramount duty towards the management of his train, must adopt ordinary precautions to discover danger to trespassers on the track. Cincinnati, etc. R. R. Co. v. Smith, 22 Ohio St. 227 ; Pickett V. Wilmington, etc. R. R. Co., 117 N. C. 616.
