and listen for an approaching train does not necessarily, or as a matter of law, constitute negligence. This is the general rule. Topeka, etc., Co. v. Cline, 135 Ill. 41; Eilert v. Green Bay, etc., Co., 48 Wis. 606; Davis v. N. Y., etc., Co., 47 N. Y. 400. Quite a number of the states, however, hold that a failure to look and listen is negligence, per se. Denver, etc., Co. v. Ryan, 17 Colo. 98; Phila., etc., Co. v. Hogeland, 66 Md. 149; Smith v. P. & R. Ry. Co., 160 Pa. St. 117; McBride v. Northern Pacific Ry. Co., 19 Ore. 64; The C. H. & I. Ry. Co. v. Duncan, Admr., 143 Ind. 524; Ga. Pac. Ry. Co. v. Lee, 92 Ala. 262; Johnson v. Chicago, etc., Co., 91 Io. 248. One Pennsylvania case went so far as to hold that, where a traveler approaching the tracks with a team, if unable to see them, he must get out and lead his team across. Pa. Ry. Co. v. Beale, 73 Pa. St. 509. Even in those states which consider a failure to stop, look and listen, contributory negligence, there are a number of things which excuse such failure. For example: where the party is thrown off his guard by some act of the company. Grand Rapids, etc., Co. v. Cox, 8 Ind. App. 29. When smoke and dust would prevent a view. Chicago & Northwestern Ry. Co. v. Hansen, 166 Ill. 623. Where snow, gale and wind prevent seeing. Atchison, etc., Co. v. Morgan, 43 Kan. 1. If fences and buildings are in the way of sight. Randall v. Conn. River Ry. Co., 132 Mass. 269. In case a gateman is stationed at the track to warn people, in such case it is not contributory negligence to approach track with a team, and drive over in a trot. Railroad Co. v. Schneider, 45 Oh. St. 678.

SLANDER-PRIVILEGED

COMMUNICATIONS-COMMON

INTEREST.-ROSEN

BAUM V. ROCHE, 101 S. W. 1164 (Tex.).—Held, where an employer is requested by the father of a discharged employee, who, though of age, is living with her father as a member of his family, and under his care and protection, to state the reason why his daughter was discharged, the reply of the employer would be privileged; but if the employer voluntarily states to the father the reason why the discharge was made, the statement would not be privileged.

When the communication is made in good faith, without malice, in honest belief of truth, it would be privileged, Fresh v. Cutter, 73 Md. 91, but it must be shown that the words were spoken at such a time, and under such circumstances as to negative the supposition of malice, and plaintiff must prove the existence of malice as the real motive of defendant's language. Buler v. Jackson, 64 Mo. 589. When slanderous words are spoken with malice, they are not privileged. Preston v. Frey, 91 Cal. 107; but if, in answer to a request of the mother in regard to misconduct of a minor daughter, it is privileged, Long v. Peters, 47 Ia. 239, or if made voluntarily to one who has an interest in it, or one that has a reasonable duty to receive such information, Erber v. Dun, 12 Fed. 526, and if a statement is made in the discharge of a public or private duty, whether legal or moral, it is also privileged. Moore v. Butter, 48 N. H. 165.

STREET

RAILROADS-ACCIDENT-CONTRIBUTORY

NEGLIGENCE-Care RE

QUIRED BY THE COMPANY.-HARRIS V. LINCOLN TRACTION CO., 111 N. W. 580 (NEB.).—Held, that the mere fact that the car was running at a rate of speed prohibited by the ordinance of the city does not of itself entitle plaintiff to

recover.

It has been held in a number of states that an injury caused by a street car running at a greater rate of speed than that prescribed by the ordinance of the city establishes negligence per se. Kan. City Sub. Belt. Ry. Co. v. Herman, 62 Pac. 543; Moore v. St. Louis Transit Co., 194 Mo. 1. But it seems, in many courts, that whether the lawful rate of speed be considered as negligence per se or not, the proximate cause of the accident must have been the excessive rate of speed. Memphis St. Ry. Co. v. Haynes, 112 Tenn. 712; Bresse v. Los Angeles Traction Co., 85 Pac. 152. Some courts have said that the mere violation of a city ordinance regulating the rate of speed within its corporate limits will not render a railroad liable for personal injury, unless the disobedience was an appreciable agency in producing the injury. B. & P. Ry. Co. v. Golway, 6 App. Div. D. C. 143; Stahl v. Lake Shore & M. S. Ry. Co., 117 Mich. 273. And it has even been held that as it is always a question for the jury to determine, whether a car was traveling at a dangerous rate of speed or not, what was the lawful rate is not admissible for any purpose. Ford v. Paducah City Ry. Co., 99 S. W. 355 (Ky.). However, in a majority of the states, although it is recognized that the fact that the car was being driven at an unlawful rate of speed would not alone give the injured a right of action, yet this fact is admissible and may be taken into consideration on the question of negligence. Hanlon v. So. Boston H. Ry. Co., 129 Mass. 310; Wall v. Helena St. Ry. Co., 12 Mont. 45.

STREET RAILROADS-REGULATION-SEATS FOR PASSENGERS-NORTH JERSEY Sr. Ry. Co. v. JERSEY CITY, 67 ATL. (N. J.) 1072.-Held, that an ordinance requiring trolley corporations to run a sufficient number of cars during evening rush hours to provide with a seat every passenger from whom a fare is demanded and to keep no one waiting more than five minutes, not appearing to be unreasonable as to one terminal and not under all circumstances unreasonable as to other, will not be set aside in toto.

Public convenience is the main consideration of such a question. Loader v. Brooklyn Hg'ts R. Co., 35 N. Y. Supp. 996. Though the ownership of such a company is private, the use is public. Olcott v. The Supervisors, 16 Wall. 695. The reasonableness of an ordinance is to be regarded. Mayor, etc., of New York v. N. Y. & H. R. Co., 31 N. Y. Supp. 147. If the power to legislate is possessed, there is a presumption as to the reasonableness of the legislation, and, unless clearly shown otherwise, courts will not interfere. Paxson v. Sweet, 1 Cr. (N. J.) 196. Loss of profits or incurring great expense does not control the situation. Mayor, etc., v. D. D., E. B. & B. R. R. Co., 133 N. Y. 113. If an ordinance is efficacious in one locality, it need not be an entire nullity. Penna. R. R. Co. v. Jersey City, 18 Vroom. 286. For cases regulating the running of cars, see Mayor, etc., v. D. D., E. B. & B. R. R. Co., ut supra; City of N. Y. v. N. Y. & H. R. Co., supra.

V.

TAXATION-MUNICIPAL PROPERTY-ELECTRIC LIGHT PLANT.-COM. CITY OF PADUCAH, 102 S. W. 882 (KEN.).-Held, a city's electric light plant is not liable for state and county taxes. O'Rear, C. J., and Nunn and Carroll, J.J., dissenting.

The law in regard to electric light plants is analogous to that of city water and gas works, upon which the courts are not agreed. Whatever property is necessary to the administration of the city is exempt, but where it is used

by city for its own profit, it is not exempt, City of Louisville v. Com., 62 Ky. 295, and it must be used for public purposes, Newark v. Township of Clinton, 49 N. J. L. 370. Waterworks and gasworks are property for public purposes, Dillon Mun. Corps., 3rd Ed., Sec. 508; while in Board of Trustees v. Atlanta, 113 Ga. 883, public property was said to embrace only such property as is owned by the state and title to which is vested directly in it. Tangible property used for waterworks is subject to taxation, and must be treated as property of a private corporation, City of Newport v. Com., 106 Ky. 434, as contracts for furnishing gas to inhabitants are not made by virtue of its power of local sovereignty, but in the capacity of a private corporation. Western Saving Fund Society v. City of Phila., 31 Pa. St. 175. The majority of cases seem to consider it exempt, saying that the business of conducting a waterworks is a business of public nature, Rochester v. Rush, 80 N. Y. 302, being matters within the scope of functions that are attributed to governments, State v. Toledo, 48 Ohio St. 112, and buildings and other property owned by municipal corporations and appropriated to public uses are exempt. Camden v. Village Corporations, 77 Me. 530. Municipal corporations running waterworks for public purposes exclusively are exempt, but not if run for pecuniary gain, City of Nashville v. Smith, 86 Tenn. 213, but the fact that the city charged residents within its corporate limits for water furnished, and thereby realized a considerable revenue, does not defeat the implied exemption from taxation, Smith v. Nashville, 88 Tenn. 464; Summer County v. Wallington, 66 Kan. 590; Town of West Hartford v. Board of Water Coms., 44 Conn. 360, as the imposition of water rents is only a mode of taxation for raising revenue to carry on the work of government. Springfield H. & M. Ins. Co. v. Keeseville, 148 N. Y. 467.

THEATER TICKETS-REFUSAL OF ADMISSION-DAMAGES. PEOPLE EX REL. BURNHAM V. FLYNN, 82 N. E. 169.-Held, that the holder of a ticket of admission to a place of amusement is, on being refused admission, entitled to recover the amount paid therefor and the necessary expenses incurred to attend.

The courts of this country generally hold that a ticket of admission to a public performance is merely a revocable license to witness the performance, the revocation of which entitles the holder to damages as for the breach of a simple contract. Burton v. Scherff, 1 Allen 133; Collister v. Haymen, 183 N. Y. 250. In some of the earlier cases it has been said that the action is analogous to that of a passenger for the illegal removal from a passenger train, in which case damage for the injury to the plaintiff's feelings and his wounded pride is allowed. Smith v. Leo, 92 Hun. 242. But the duties and obligations of common carriers, as distinguished from theater managers, are clearly marked and defined and their liability rests on different grounds. Horney v. Nixon, 213 Pa. 20. And although a revocation without just cause, accompanied by a rude ejection, will give rise to an action ex delicto, Joseph v. Bidwell, 28 La. Ann. 382; Drew v. Peer, 93 Pa. 234; and punitive damages may be allowed to be recovered where the statutes of the state make it unlawful to refuse admission to anyone presenting a ticket, Greenberg v. Western Turf Ass'n, 140 Cal. 357, the rule generally recognized is that if, in revoking the license, the defendant violated his contract, he is liable for any damages sustained by reason of such breach. Johnson v. Wilkinson, 139 Mass. 3.

WATERS-GREAT PONDS-POWERS OF STATE.-AMERICAN WOOLEN Co. v. KENNEBEC Water Dist., 66 Atl. 316 (Me.).—Held, that lakes and ponds of more than ten acres in extent are known as "great ponds" and are under the ownership and control of the state for the benefit of the public. The state can, at its discretion, authorize the diversion of their waters for public purposes, without providing compensation to riparian owners upon the ponds or their outlets.

Maine and Massachusetts are the only states which hold that ponds of ten acres and over are public property; this came from the Colonial Ordinance of 1641-1647. Mansur v. Blake, 62 Me. 38; Hittinger v. Eames, 121 Mass. 539. In the other states, only the great inland lakes which are navigable, and highways of inland communication and trade are public property, while in the small, unnavigable ponds, the riparian bound is the center. Fletcher v. Phelps, 28 Vt. 257; Edwards v. Ogle, 76 Ind. 302. These courts hold that the state, as proprietor, has no greater right than any other proprietor would have, as against the owners upon the streams from ponds, on the grounds that a permanent deprivation means the loss of a constitutional right, i. e., the protection of property, Cowles v. Kidder, 24 N. H. 364; that damages must be given for injuries sustained because of another exercising his rights under a statute, G. R. Booming Co. v. Jarvis, 30 Mich. 308; that no riparian proprietor has a right to use the waters of a stream to the prejudice of other proprietors above or below, Clinton v. Myers, 46 N. Y. 511; that the legislature cannot authorize the infliction of such an injury without making provisions for compensation. Eaton v. B. C. P. M. R. R., 51 N. H. 504.

WILLS-CONSTRUCTION-PAROL EVIDENCE. PEET V. PEET, 82 N. E. (ILL.) 376.-Testator made a will leaving all his property to his wife, making no references to his children. Eighteen months thereafter a child was born. A state statute provided that a child born to any testator after the making of his will shall not be disinherited unless it shall appear from the will that it was the intention of the testator to disinherit such child. Held, that parol evidence was admissible to enable the court to see and determine that such was the testator's intention. Cartwright, Farmer, and Dunn, J.J., dissenting A will is at common law revoked by subsequent marriage and birth of issue. 1 Redfield on Wills, Ch. VII. Neither one alone is enough to revoke a will. Brush v. Wilkins, 4 Johns. Ch. 506. Birth of a child alone will effect a revocation of a will. McCullum v. McKenzie, 26 Ia. 510. Parol evidence of testator's intention is admissible to explain latent ambiguities. I Jarman on Wills, Section 402, et seq.; Trustees v. Peasely, 15 N. H. 317. That testator did not intend the person to have any part of the estate must be ascertained from the proper meaning of the words of the will and not from extrinsic testimony. Chenault's Guardian v. Chenault's Exec., 88 Ky. 83. Extrinsic testimony is admissible of circumstances relating to the testator, individually, and his affairs, to enable the court to discover the meaning attached by the testator to the words used in the will, and apply them to the particular facts in the case. Peet v. Railway, 70 Tex. 522. Under statute similar to one in this case, extrinsic testimony showing an intention to disinherit child was held admissible. Willson v. Fosket, 6 Metc. 440; Lorieux v. Keller, 510, 196; Coulan v. Doull, Estate of Garraud, 35 Cal. 336; Hill v. Hill, 4 Utah 267. Contra, 7 Wash. 409.

WITNESSES-PRIVILEGED COMMUNICATIONS TO PHYSICIANS-WAIVER..NOELLE V. HOQUIAM LUMBER AND SHINGLE Co., 92 PAC. (Wash.) 372.— Plaintiff in an action for personal injuries testified as to the character and extent of his injuries. Held, that he did not thereby waive the privilege granted him by statute, which enjoins secrecy upon attending physicians, unless they have the consent of their patients to be examined. Hadley, C. J., and Root, J., dissenting.

These statutes commonly provide that physicians cannot testify to the result of examinations and observations made by them upon the person of a patient, unless the patient consents, or in some way waives his privilege. Williams v. Johnson, 112 Ind. 273; Davis v. Supreme Lodge, 165 N. Y. 159. He may do so by calling physician to testify in his behalf, or by a clause in a contract. Adreveno v. Mutual, etc., Assn., 34 Fed. 870. But he need not, when he calls his physician to testify, specifically state his intention to make such waiver. Holcomb v. Harris, 166 N. Y. 257. Where a patient goes on the stand and testifies to what the physician said and found, he thereby waives his privilege under the statute and the physician may testify. Highfill v. Mo. Pac. Ry. Co., 93 Mo. App. 219. But where she has testified as to her general health, that does not permit her physician to be called in order to contradict her, wherein he relates confidential communications made by her to him. McConnell v. City of Osage, 80 Ia. 293. A client does not consent that attorney shall testify to privileged communication made by him, by himself testifying to the action generally, but he does if he discloses the confidential communication. Oliver v. Pate, 43 Ind. 132. Patient by calling on his physician to testify does not thereby waive his right to object to other physicians who have treated him, testifying on the same subject. Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Baxter v. Grand Rapids, 103 Ia. 599. The rule of evidence which excludes the communication between physician and patient must be evoked by an objection at the time the evidence of the witness is given. Lissar v. Crocker Estate Co., 119 Cal. 442; Hoyt v. Hoyt, 112 N. Y. 514. Under a statute practically the same as the one in this case a physician who attended a party was not allowed to testify to her condition and symptoms, as disclosed by his examination and observation, even though she had testified in her own behalf in respect thereto. Green v. Nebagamani, 113 Wis. 508.