tween original upland and made-land. In the upper bay of New York to-day Governor's Island is being extended by filling in to such an extent as to double its area. When that work is done the entire portion above water will be Governor's Island. Why a harbor or haven may not be so improved by artificial structures as to enlarge its capacity and increase its security without losing its character we do not see. The waters inclosed by the breakwaters and forming a continuation of the interior harbor, southeasterly along the shore to the city line, constitute a "haven" within the ordinary meaning of that word as given in the standard dictionaries. It is difficult to see why the circumstances that the federal government constructed the breakwaters and that unless they are kept in repair they would probably be washed away should change the meaning of the word.

Moreover, the intention of Congress as evidenced in the sections quoted is in harmony with our construction. It was very careful to avoid giving jurisdiction of these particular offenses to the federal courts, when they were committed on waters which are indisputably within the jurisdiction of some one of the states which constitute the United States. U. S. v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071, held generally that the waters of the Great Lakes and of the rivers which connected them were to be considered "high seas" in the same sense as oceans are. Of jurisdiction touching the particular offense then before the court, which was committed in the Detroit river near the Canadian shore, it held:

"The statute under consideration (section 5346) provides that every person who, upon the high seas or in any river connecting with them, as we construe its language, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, commits on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, an assault on another with a dangerous weapon or with intent to perpetrate a felony, shall be punished, etc. The Detroit river from shore to shore is within the admiralty jurisdiction of the United States and connects with the open waters of the lakes-high seas, as we hold them to be, within the meaning of the statute. From the boundary line, near its center to the Canadian shore it is out of the jurisdiction of the state of Michigan. The case presented is therefore directly within its provisions."

This language would certainly seem to imply that, if the vessel on which the assault was committed had been so close to the Michigan shore as to be within the jurisdiction of that state, a different conclusion would have been reached. The same sections, or the older statutes from which they are taken, were considered in U. S. v. Morin, 26 Fed. Cas. 1310; Wynne v. U. S. (April 4, 1910) 30 Sup. Ct. 447, 54 L. Ed.

The government further relies on Act Sept. 4, 1890, c. 874, 26 Stat. 424 (U. S. Comp. St. 1901, p. 3627), which provides that the Circuit and District Courts shall have jurisdiction of such offenses as are specified in the sections above quoted, when committed by any person on a registered or enrolled vessel "being on a voyage upon any of the waters of the Great Lakes * or any of the waters connecting any of the said lakes." The evidence, however, shows that the "John Mitchell" was not at the time "on a voyage." She had been towed to anchorage to be fitted out. No fire had been kindled under her boilers. She was not equipped, and had not been equipped that sea

* *

son, with a crew. Her full crew numbered 21 men. Only 10 had been engaged at any time that season. None of them had yet signed papers for any trip, and her clearance papers were not issued until nearly a week after the occurrences. Under these circumstances, it cannot be held, under the authorities, that the "John Mitchell" on May 18th was on a voyage. See Brown v. Jones, 2 Gall. 477, Fed. Cas. No. 2,017; The Brutus, 2 Gall. 526, Fed. Cas. No. 2,060; The John L. Dimmick, 3 Ware, 196, Fed. Cas. No. 7,355; Bowen v. Hope Ins. Co., 37 Mass. 275, 32 Am. Dec. 213; Burgess v. Equitable Marine Ins. Co., 126 Mass. 70, 30 Am. Rep. 654.

The order is reversed, and cause remanded, with instructions to discharge petitioner.

COXE, Circuit Judge (dissenting). The petitioner is charged with violating a law of the United States which provides, in substance, that every person who, on board a vessel belonging to citizens of the United States, upon the high seas, or in any river, haven, creek, basin or bay, within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular state, commits an assault, or maliciously assaults, with intent to plunder, shall be punished as therein provided. The assault in question was made on board the steamer John Mitchell when she was lying 300 feet from the land side of the breakwater built at the eastern end of Lake Erie, and about half a mile from the shore. The situation can be better appreciated by an examination of the following diagram than by many words of description:

LAKE

MITCHELL

In United States v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071, the Supreme Court, following the inevitable deduction from the reasoning of The Genesee Chief, 12 How. 443, 13 L. Ed. 1058, decided that the Great Lakes were high seas within the meaning of the statutes here in question and that the courts of the United States have jurisdiction to try the offenses described therein. The sole question, therefore, is whether the erection by the government of a breakwater which may be used, and is used, as an anchorage ground for vessels unable, because of congestion or other reason, to enter the harbor and also for vessels delayed in beginning their westward voyages, converts this portion of the lake into a "haven" within the jurisdiction of the courts of the state of New York?

It is conceded on all sides, that the point where the Mitchell was anchored was "upon the high seas" but for the wall 300 feet west of that point. So the question may be stated thus: Does the erection of a stone breakwater half a mile from the shore, neither end being connected with the land, convert that portion of the high seas lying between it and the shore into a "haven"? To my mind the answer should be in the negative. The Mitchell was anchored inside the wall known as the "Old Breakwater" and it is true that two other sections of wall known as the "South Breakwater" and "Stony Point Breakwater," the latter being connected with the shore, run south from. the "Old Breakwater" on a line substantially parallel with it. Between these sections there are wide sea openings said to be 500 and 250 feet respectively. If it be contended that the three walls in question are to be considered as one continuous wall, it follows that a section of Lake Erie four miles long and half a mile wide has been converted into a haven and removed from the jurisdiction of the United States

courts.

But, however this may be, it remains true that the existence of the "Old Breakwater" is necessary to give any plausibility to the argument of the petitioner. If that did not exist, the assault would have occurred on a vessel anchored in the waters of Lake Erie. The same is true if the Mitchell had been anchored 300 feet west of the breakwater. Should a storm destroy the wall or the government decide to discontinue it, the jurisdiction of the federal courts might be restored in a single night to the venue of the assault. The unwisdom of vesting the jurisdiction of the United States courts upon circumstances so factitious seems to me obvious.

The word "haven" as used in the statute does not mean the quiet waters under the lee of a wall which man has erected to protect the land from the inroads of the sea, but refers to those places of safety between fauces terræ which nature has protected from the elements and where ships may ride in safety. The latter construction creates. a jurisdiction as immutable as the laws of nature; the one contended for by the petitioner must constantly change with the improvements made by man. A breakwater built to protect a city from the tides or prevent a harbor from being inundated may destroy a jurisdiction which existed before the Union was formed. It is true that in one sense the issue is not important, as it relates to what may be considered. a simple assault and battery, but in its consequences it is far reaching.

The trend of decision in the federal courts has been steadily in favor of widening the jurisdiction in admiralty; if we uphold the petitioner's contention, it will, in my judgment, be a distinct step backwards. The facts in the present case illustrate how easy it will be to hamper the commerce of the Great Lakes by lawless acts if large sections of the high seas are to be removed from the jurisdiction of the national courts. If the doctrine contended for be universally adopted, it follows that not only on the Great Lakes, but on the ocean as well, the section, where ships may anchor between a protecting wall and the shore must be withdrawn from the jurisdiction of the federal courts, with the constant clashing of authority which is sure to follow.

The commerce of the Great Lakes is not only national, but international, in character and should be under the jurisdiction and protection of the national courts.

The decision of the District Court should be affirmed.

ERIE R. CO. v. HANNA.

(Circuit Court of Appeals, Third Circuit. June 17, 1910.)

No. 23.

RAILROADS (8350*)—ACCIDENTS AT CROSSINGS-NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE-WHEN QUESTIONS FOR Jury.

Plaintiff was struck and injured by a train while driving over a grade crossing on defendant's railroad at night. He and two other witnesses, who stated they were paying particular attention, testified directly that the train gave no signal for the crossing by either bell or whistle. The track to within 300 feet of the crossing ran through a cut from 1,200 to 1,500 feet long, which hid it from the view of a person on the highway. The train which struck plaintiff was a fast freight running downgrade very quietly at a speed of from 50 to 70 miles an hour. Plaintiff stopped and looked and listened by a tree 100 feet from the crossing, which was the usual place, because from there the road ran down a grade to the crossing and the view of the track was more or less obstructed all the way. He did not see nor hear the train, and drove onto the crossing without again stopping, but continued to look and listen. Held that, on such evidence, the questions of defendant's negligence and plaintiff's contributory negligence were both properly submitted to the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. 350.*]

In Error to the Circuit Court of the United States for the Western District of Pennsylvania.

Action by George Hanna against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

George F. Davenport, for plaintiff in error.

Eugene Mackey and Frank J. Thomas, for defendant in error Before BUFFINGTON and LANNING, Circuit Judges, and ARCHBALD, District Judge.

BUFFINGTON, Circuit Judge. In the court below George Hanna sued the Erie Railroad Company, and recovered a verdict against it For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

for injuries suffered by him when struck by its train. Judgment was entered on the verdict, whereupon the railroad sued out this writ, and assigned for error the refusal of its point asking for binding instructions. Two questions arise therefrom: First, was there evidence of defendant's negligence to submit to the jury? And, second, were the facts such as convicted the plaintiff of contributory negligence?

The railroad's alleged negligence consisted in failing to give warning of the approach of its train to the public road crossing where plaintiff was injured. The train in question was a midnight, highspeed, freight running very quietly downgrade and at from 50 to 70 miles an hour. The track to within 300 feet of the crossing led through a cut which was from 1,200 to 1,500 feet long and hid it from a person approaching the crossing. Witnesses testified no crossing whistle was blown, and their evidence rose higher than the mere negative proof of persons who simply did not observe. For reasons stated by them they were closely observing the whistlings made at this crossing. The plaintiff's accident occurred on June 12, 1906. A fatal accident had occurred at this crossing, which was in a rural neighborhood, in April preceding, and Mr. Davis, who lived some 35 rods from the crossing, and his wife, who had seen a neighbor killed in such accident, said they had since then been paying attention to the trains as they passed the crossing. Mr. Davis was lying awake in bed when he heard the train about half a mile beyond. His testimony was:

"Q. Mr. Davis, do you remember the night of June 12, 1906? A. I do. Q. Where were you that night? A. I was at home in bed. Q. Were you awake about midnight? A. I was. Q. State if you heard anything at that time. A. Yes, sir; I heard a train; made a peculiar noise, which drawed my attention at first, and I listened particularly to hear what it was, and I found it was a passing train and she must have been up about the water tank when I first heard it, probably a half a mile above me, and I listened particularly. Q. Is the water tank north or south of the whistling post? A. It's north of the public highway. Q. Well, is it north or south of the whistling post? A. It is north. Q. And away north? A. Yes. Q. Go on and tell what you heard. A. And I finally made up my mind that it was a fast train, and I listened to it particularly, and it shot across the crossing very rapidly, and was running fast and still. Q. About how was it running with reference to speed? A. Well, in my judgment, living there as long as I have, I would say it was running in the neighborhood of 60 or 70 miles an hour. Q. State, Mr. Davis if you gave any attention to the train at that time. A. I did. Q. Did you notice as to whether it gave any signals at the crossing? A. I did. Q. What, if any signals did it give? A. It did not give any. Q. Did you have any particular reason for noting as to whether there were signals given? A. I did. There was an accident on that same crossing in April, and ever after that I was paying particular attention to the trains when I heard them. Q. About what time did that train pass there? A. It passed there about 12 or 12:05. Q. What do you say as to whether that train sounded a whistle or rang a bell? A. I say it did not."

Mrs. Davis, who was with him, testified to the same effect, viz.: "Q. Do you remember the night when Mr. Hanna was injured? A. Yes, sir. Q. Where were you that night? A. I was home in bed. Q. About what time of night was it? A. Well, I thing it was about 12 o'clock at night. Q. Did you hear anything? A. Why, yes; I heard the train coming down. Q. Just tell the court and jury what you heard. A. Why, I heard it just coming down