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The Supreme Court of the United States has recently applied this rule to that much advertised highway of commerce necting Lake Michigan with the Mississippi River by means of the Chicago-Des PlainesIllinois rivers route. These streams have been united by artificial means which form internal barriers to navigation, and the route, for that and other reasons, has not been a success; and the riparian owners, especially those abutting on the banks of the Des Plaines river near Joliet have regarded the abandonment of the stream as an artery of commerce as determining the fact of the non-navigability of the stream and begun to erect dams and other obstructions in the stream without the consent of Congress. The Supreme Court, in a recent case, sustained an injunction against the erection of such obstructions and declared that Congress is the final arbiter of navigability and its consent must be obtained in cases of doubt. Economy Light & Power Co. v. United States, 41 Sup. Ct. 410. In this case the Court held that if a river, which, after practical service as a highway of commerce for a century and a half, has fallen into disuse partly through changes in the course of trade, or methods of navigation, or changes in its own condition, and partly as the result of artificial obstructions, and has not been used for almost 100 years, is to be abandoned as a highway of commerce, it is for Congress, and not for the courts, to so declare.

Although this river lies wholly in the State of Illinois, the Court held that it came within the purview of Ordinance of July 13, 1787, art. 4, providing that the navigable waters leading into the Mississippi and St. Lawrence should be common highways and forever free, although this did not make streams navigable in law unless so in fact, but simply declared the public rights therein so far as they were navigable in fact.

The Court further held that to the extent that it pertained to internal affairs within the present State of Illinois, the Ordinance of July 13, 1787, was superseded by the admission of the State of Illinois into the Union; but, so far as it established public rights of highway in navigable waters capable of bearing interstate commerce, it could not be repealed by one of the states.

On the question of navigability the Court held that the test is whether the stream in its natural state is capable of being used as a highway and that the question of navigabil

ity is not affected by the fact that there are obstructions in the stream, carrying places and portages, or whether it is open at all seasons or at all stages of the water. Finally it is for Congress to pass finally on the question and a private riparian owner cannot risk an investment on the question of navigability without consulting Congress. On this point the Court said:

**

"We concur in the opinion of the Circuit Court of Appeals that a river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions. And we agree that the provisions of section 9 of the Act of 1899 (30 Stat. 1151) apply to such a stream. The act in terms applies to "any * * navigable river, or other navigable water of the United States"; and, without doing violence to its manifest purpose, we cannot limit its prohibition to such navigable waters as were, at the time of its passage, or now are, actualy open for use. The Des Plaines river, after being of practical service as a highway of commerce for a century and a half, fell into disuse, partly through changes in the course of trade or methods of navigation, or changes in its own condition, partly as the result of artificial obstructions. In consequence, it has been out of use for a hundred years; but a hundred years is a brief space in the life of a nation. Improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it at the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make them again important avenues of commerce among the states. If they are to be abandoned, it is for Congress, not the courts, so to declare. The policy of Congress is clearly evidenced in the act of 1899, and, in the present case at least, nothing remains but to give effect to it."

VIOLATION OF SAFETY APPLIANCE ACT MUST BE THE PROXIMATE CAUSE OF INJURY TO JUSTIFY ACTION UNDER THAT ACT.-The Safety Appliance Act does not give a right of action to one injured simply because that act has been violated in respect of the car or train in which plaintiff was injured, unless it be shown that such violation of the Act was the proximate cause of the injury. Lang v. New York Central Ry. Co., 41 Sup. Ct. Rep. 380. In that case a car not equipped with couplers as required by Safety Appliance Act, § 2 (Comp. St. § 8606), was standing on

a siding. A train crew began to kick other cars on the siding, but did not intend to disturb, move, or couple any of the cars to the crippled car. It was the duty of a brakeman to stop the moving cars before coming in contact with the crippled car, but plaintiff's intestate failed to perform such duty, and his foot was caught between the moving cars and the crippled car, and he was injured. The Court held that the collision was not the proximate result of the defect in the car.

The contention of plaintiff in this case was that the absence of a coupler attachment and bumpers on the crippled bar caused plaintiff's leg to be crushed when the cars came together, and cited in support of this contention the case of Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, where the Supreme Court held it to be an "absolute duty" resting upon common carriers to provide couplers for every car and that by omission of this absolute duty "the carrier incurs a liability to make compensation to any employee who is injured by it."

On the other hand, the contention of the defendant adopted by the Court was that "the proximate cause of the accident was the failure of the deceased to stop the cars before they came in collision with the defective car. The absence of the coupler and drawbar was not the proximate cause of the injury, nor was it a concurring cause."

In support of this contention the defendant cited the decision in the case of St. Louis & San Francisco R. R. Co. v. Conarty, 238 U. S. 243, 35 Sup. Ct. 785. In that case the injury occurred by reason of a collision with a defective freight car. The deceased was riding on the front of the colliding car, and while an injury might have been avoided if the freight car had been equipped with a coupler attachment and bumper, yet, since the deceased was not attempting to couple the defective car, the absence of a coupler was held not to be the proximate cause of the injury. In this case the Court states the purpose of the Safety Appliance Act when it says that "nothing in its provisions gives any warrant for saying that they are intended to provide a place of safety between colliding cars. On the contrary, they affirmatively show that a principal purpose in their enactment was to obviate the necessity for men going between the ends of the cars.' 27 Stat. 531."

Justice McKenna, in his opinion in the principal case, declares that it was the duty of the

deceased not to couple the defective cars, but to stop the colliding car and to set the brakes upon it so as not to come into contact with the crippled car. "That duty," said Justice McKenna, "he failed to perform, and, if it may be said that notwithstanding he would not have been injured if the car collided with had been equipped with drawbar and coupler, we answer, as the Court of Appeals answered, "still the collision was not the proximate result of the defect," or, in other words, and as expressed in effect in the Conarty Case, that the collision under the evidence cannot be attributable to a violation of the provisions of the law "but only that, had they been complied with, it (the collision) would not have resulted in injury to the deceased."

There can be no doubt that lawyers and trial courts have been much confused by the Layton and Conarty Cases. In the Lang Case the trial court frankly relied on the Layton Case and the Appellate Court (N. Y.) relied specif ically on the Conarty Case. Justices Clarke and Day dissented in the principal case and the former expressly bases his dissent on the Layton Case, which he regards as controlling and which he explains as follows:

"The Layton Case, supra, coming after the Conarty Case, decided (all the members of this court as now constituted concurring) that: 'Carriers are liable to employees in damages whenever the failure to obey these safety appliance laws is the proximate cause of injury to them when in the discharge of duty.'

"And the Gotschall Case, 224 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995, clearly proceeded upon the same principle. Neither of the men injured in the Layton or Gotschall Cases was engaged in coupling or uncoupling cars when the accident occurred, but each was injured because of defective coupling appliances when he was going over the cars of his train in the discharge of his duty. Here Lang was injured, when in the discharge of his duty, because a defective car had been placed upon a much-used track in a busy yard in such a position that it was impossible for him, in the exercise of due care, to prevent the cars he was seeking to control from coming in contact with it. It would be difficult to conceive of a case in which the negligence of the master could be a more immediate and prox. imate cause of injury to a servant than it was in this case. Having regard to the extent to which this case must be accepted by other courts as a rule of decision, it would seem that the orderly and intelligible administration of justice required that the principle of the Layton and Gotschall Cases should be disavowed or overruled, for that principle is so plainly in conflict with the opinion in this case that courts and advising counsel will otherwise be left without any rule to guide them in the disposition of the many similar cases constantly pressing for disposition."

CONDITIONS IN ENGLISH SHIP

PING DOCUMENTS.

There is a probability that British law on this subject may, at a not distant date, be brought into line with the well-known Harter Act of the United States, passed in February, 1893. It is only right to mention, however, that before this legislation was adopted the American Courts had held that freedom of contract, as between goodsowner and carrier by sea, was limited in ways unknown to the English common law. A negligence clause in a bill of lading was held to be unenforceable and void as being against public policy.

The Hunter Act has a double purpose. It makes it unlawful for the shipowner to insert certain exemptions from liability in his contract. It also provides certain statutory grounds of exemption in favor of the shipowner, subject to certain conditions. The Act obviously would be enforced in any United States Court in regard to any contract made in the United States for shipment from a United States port. The Courts have also held that it applies to any contract, wherever made, for the carriage of cargo to a port in the United States, and this would be the result even in regard to a bill of lading signed in England and expressly providing that the contract should be subject to English law.

The American Harter Act has been imitated by the Parliaments of the Commonwealth of Australia, of New Zealand, and of the Dominion of Canada. The Australian Act (sect. 7) and the Canadian Act (sect. 12) impose a penalty on any master or agent who issues a bill of lading containing terms declared by the Acts to be illegal. As the issue of a bill of lading by a captain or agent in an Australian or Canadian port would be an act done within the Australian or Canadian jurisdiction, the effect of this is that the Acts have to be incorporated in bills of lading issued in Australia or Canada in the same

way as the Harter Act (by reason of sect. 5 of that Act) is incorporated in bills of lading issued in the United States.

Such legislation in the British Dominions has led to complaints from commercial bodies in the United Kingdom as to the practice of shipowners inserting conditions in their contracts which, under the law of the United States and the British Dominions referred to, are not allowable. An Imperial Shipping Committee was appointed to consider these complaints and their report which has lately been issued may, as already indicated, lead to a change in the law.

By the common law of England the shipowner, says the report, is responsible for the safe carriage and delivery of goods committed to his charge as a common carrier, but there is nothing in English law to stop him from contracting out of the whole or any part of his liability, and by a practice which has gradually extended since about 1880, British shipowners do habitually in their bills of lading contract themselves out of their common law liability to a large extent.

The liability of the shipowner relates to risks of two kinds. There are navigation risks, due to perils of the sea and other incidents of navigation; and there are carriers' risks, which are those of loss or damage to goods arising in the course of their receipt, stowage, custody, and delivery by the shipowner and his servants. The present demand for legislation is to prevent the shipowner from contracting out of his liability in respect of carriers' risks only. By general consent of all the parties concerned, he should continue to be free to relieve himself of his liability in respect of navigation risks from whatever cause. The practice of inserting the contracting-out clauses in bills of lading continues, notwithstanding that there is a widespread and persistent demand among commercial organizations throughout the Empire for legislation to render such clauses illegal.

On the one hand, the shippers submit Į to the insertion of the clauses in question, and yet through their organizations generally object to them; and, on the other hand, the shipowners insert the clauses, and yet many of them-and perhaps a majority-do not as a rule avail themselves fully of the rights which they so obtain. It seems to follow from such a situation that there is at any rate a prima facie case for legislation in the sense asked for, and that such legislation would appear likely to be a protection rather than otherwise to such shipowners as make it a practice to pay reasonable claims. It is argued that it would make for simplicity if he were also allowed to continue to contract himself out of his "carrier's risks," thus in effect throwing upon the shipper's underwriter the whole of the risks of every kind. Such simplicity does not, however, under present conditions appear to be attainable, for since pilferage has become rife underwriters both in London and Liverpool have not only refused to cover "risks of whatsoever kind," but have also refused to cover more than 75 per cent of the losses due to pilferage. Their object, it was explained to the Committee, was to make shippers more careful in packing and shipowners more diligent in supervising their

servants.

The Committee recommended uniform legislation throughout the Empire dealing with shipowners' liability and they suggest that the measure should be framed on the lines of the Canadian Water Carriage of Goods Act, 1910, subject to certain further provisions in regard to:

(1) Exceptional cases in which goods. should be allowed to be carried by shipowners at owner's risk;

(2) The precise definition of the physical limits to the shipowner's liability;

(3) The fixing of maximum values for packages up to which shipowners should be liable to pay.

The right of trial by jury of ancient and obscure origin has been safeguarded by provisions in each of the Constitutions of Kentucky and by amendment to the Federal Constitution. Other States have caused similar provisions to be incorporated in their organic law.

Courts existed before juries and when the latter were called in to assist in the ascertainment of disputed facts, the courts reserved to themselves the right and still continued to pass on numerous questions of fact.

That disputed questions of law are for the Judge has always been true in practice as well as theory; that disputed questions of fact are for the jury is a proposition theoretically sound, but never followed absolutely in point of practice.

Incidental questions of fact which must. be decided by the Court are constantly arising in every trial. Writings, the construction of which was a function of the Court, when juries, who in the early days could not read, came in, continued to be interpreted by the courts. What a foreign law may be is determined by the Court; the definition of legal terms, such as "malice," "false pretenses," "reasonable notice," are laid down for the jury's guidance by the

Court. The limits within which testimony must be confined, the extent to which collateral facts may be considered, the determination of what is relevant to the issue are all matters exclusively under the control of the Court. It alone determines what presumptions may be considered conclusive and which merely prima facie; it decides what the undisputed facts show as to proximate cause; it may declare a witness not competent before the jury is given an opportunity to say whether he is credible.

It is not strange, therefore, that the

courts in the exercise of their functions. have apparently encroached at times upon the province of the jury, nor is it a matter of surprise that the exact line of demarcation separating the functions of each is not always clearly outlined.

The present practice of directing verdicts, which has developed largely in the last seventy-five years, succeeds what was known at common law as a demurrer to the evidence.1

Soon after the practice of hearing witnesses by a jury came into existence, says James B. Thayer, this method of attempting to substitute for the jury's opinion on the evidence, that of the Court was devised. While it was claimed that this, like other demurrers, raised merely a question of law, in reality its effect was to withdraw from the jury all consideration of the facts and to submit to the Court, whether it were possible to give a verdict for the party producing the evidence as a matter of legitimate inference from the testimony. introduced.

That the same difficulties experienced by modern judges, confronted the older judges who were called upon to say where the dividing line separating the functions of Court and jury lay, is seen by reference to the noted case of Gibson v. Hunter, (1793) in which Ch. J. Eyre said:

"The questions referred by your lordships to the judges arise upon a proceeding, which is called a demurrer to evidence,

(1) Schuchardt v. Allens, 1 Wall. 359, 370.

and which though not familiar in practice, is a proceeding well known to the law. It is a proceeding by which the judges, whose province it is to answer to all questions of law, are called upon to declare what the law is upon the facts shown in evidence, analogous to the demurrer on facts alleged in pleading. My Lords, in the nature of the thing, the question of law to arise out of the fact, cannot arise till the fact is ascertained.

"It is the province of a jury to ascertain the fact, under the direction and assistance of the Judge; the process is simple and distinct, though in our books there is a good deal of confusion with respect to a demurrer upon evidence, and a bill of exceptions, the distinct lines of which have not always been kept so much apart as they ought to have been."

In this case it was held, thereby announcing a new rule, that before the party demurring to the evidence could insist upon the opposing party joining in the demurrer, he must distinctly admit upon the record, "every fact and every conclusion which the evidence given for the plaintiff conduced to prove."

The courts of a very limited number of States, among them Kentucky, have regarded the constitutional provisions above referred to as of such compelling force that in a trial of causes where the party upon whom the affirmative rests produces in support of the issues competent and relevant evidence, slight and unconvincing though it may be, the question must be submitted to the jury, even though the Court upon application would set aside a verdict based upon such evidence. That is what is known as the Scintilla Rule.

Among the first cases declaring this rule. in Kentucky is that of Thompson v. Thompson.3 The Court in that case marked out the boundary line beyond which courts are not permitted to go in the exercise of their supervisory powers in the trial of causes. That rule has been adhered to consistently to this day, and the only remedy against a verdict supported only by slight and unconvincing evi