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competent watchman on duty between 9 o'clock p. m. and 6 o'clock a. m. to guard against fire and give warning in case a fire breaks out. It further requires that a large alarm bell or gong shall be placed on each floor or story of a building used as a hotel, to be used to alarm inmates in case of fire. It appeared that during the night, while plaintiff was a guest in defendant's hotel, a fire occurred; that plaintiff was injured in attempting to escape by means of an inadequate fire rope escape; that the hotel was not properly patrolled to discover fires in their inception; and that the guests were not seasonably notified to escape before the fire gained headway. There were other elements of negligence in this case besides failure to obey the statutory provision with regard to a watchman, but, speaking of that single feature, the Court said:

"This is sufficient to attach a civil liability to the innkeeper for negligence in not properly safeguarding his guest. While an innkeeper is not an insurer of the safety of his guest, yet he may not. omit to do the things that are reasonably necessary for his safety and protection (11 Am. & Eng. Ency. Law, 1st ed., 32). The law seems to be well settled that when a statute commands or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his benefit or for a wrong done him contrary to its terms."

The following language from the dissenting opinion of Mr. Justice Miller, in Gelder v. Int. Ore Treating Co., treating of neglect to guard machinery as required by section 81 of the Employers' Liability Act, felicitously expresses the argument for the position now taken by the Court of Appeals:

"I am aware that it has been said in many cases that the violation of a municipal ordinance or a statute is evidence of negligence. But in all of those cases other elements were involved in the determination of the question of the defendant's negligence. Either duty violated was not mandatory as to the plaintiff or its violation was not the immediate cause of the injury. In this case the plaintiff was injured by the violation of a mandatory duty imposed for his benefit and without the intervention of any other cause. Negligence is the violation of duty. Surely it would not have been error for the court to charge that it was the mandatory duty of the defendant to guard this machine if it was practicable to do so, the danger being obvious. How, then, can it be said that it was error to charge that the defendant was negligent if it violated that duty?"

The Court of Appeals of New York exercised common sense and promoted justice in holding that in the present case a finding was authorized that the injury occurred "without the intervention of any other cause." We think it might be legitimate to go much further than was required to be done in this case in concluding that lack of statutory safeguards was the cause of an accident.

THE TRAFFIC POLICEMAN AND THE NEGLIGENT MOTORMAN.-The traffic policeman whose presence has become more necessary and

150 App. Div., 184, 189.

whose liability to injury has become very great in the streets of our large cities since the advent of the automobile, appears in an Appellate Court as a litigant in Mobile R. Co. v. Burch where one in the City of Mobile, Alabama, sued a street railroad company for damages for personal injuries. The plaintiff was able to invoke a city ordinance prohibiting any person driving a vehicle or operating a street car from crossing either street at frequented intersections of two streets until signaled by one of the traffic officers on the post. The Supreme Court ruled that it was negligence for a street car to cross such a street intersection without a signal. It was further laid down that where a traffic policeman struck by a street car had his back towards such car, and the motorman gave no warning by ringing the gong or otherwise, the negligence in crossing a street without a signal from one of the traffic officers stationed there might have been the proximate cause of the injury, as the policeman had a right to assume that the car would not cross without a signal, and, acting upon such assumption, to refrain from moving from the track until the car was so signaled. The evidence showed that at the time of the accident the plaintiff was a police officer in the City of Mobile, who was at such time stationed, under orders from the municipal authorities, at the intersection of two streets for the purpose of looking after, regulating and directing at that point, in conjunction with another officer there stationed, traffic of all kinds, to the end of preventing collisions and accidents; such point being, even on crdinary occasions, a much used and frequented crossing in the city, and more so on the occasion in question, when the President of the United States was in the city, which fact attracted to it large crowds. Were there no city ordinance, and merely according to custom in controlling street traffic by officers, the policeman would have a right to assume that a car would not cross without a signal. The court discusses the duty of cars towards traffic policemen on general principles. It was laid down that if a street car motorman saw a traffic policeman on the track or in dangerous proximity thereto, with his back to the car, he was guilty of negligence in failing to sound the gong or to give warning in some way of the car's approach, as he had no right to assume that the policeman was conscious of the approach of the car. The proposition is advanced that unless a street car motorman knows or has good reason to believe that a person on or dangerously near the track is deaf, he may, after the sounding of the gong or giving warning in some way of the car's approach, assume that such person hears the warning and will get out of the way, but that assumption cannot be indulged after such person's danger becomes imminent, and when such time arrives it is the duty of the motorman to stop the car and avoid the injury if he can do so. The position of a traffic policeman on duty is always more or less one

7 68 S. 509.

of "imminent danger" and it is the duty of drivers and motormen to assume that he may not get out of the way as an ordinary pedestrian would.

REGULATIONS BY GAS COMPANIES.-The Supreme Court of Kansas declares that a gas company which accepts the terms of a franchise ordinance expressly providing that a certain specified rate shall not be exceeded, and authorizing the shutting off of gas from any consumer in arrears for a longer period than fifteen days, has no right to require a $5 deposit or to add a penalty of 5 cents a thousand cubic feet for non-payment by a certain time in the month. Previous judicial ruling on the matter of regulations and charges have involved only the reasonableness of regulations by municipalities or other public service corporations, and not, as in this case, the sole matter of contract right. In a general way the law is settled that such companies are required to supply all patrons without partiality or discrimination, and may make reasonable regulations to insure full and prompt payment, although the courts have differed somewhat as to the reasonableness of certain means employed. However, in one Kentucky case where the contract between the city and the company provided that private consumers should be supplied with gas at a rate not to exceed $2 a thousand cubic feet, it was held that the company had no right to require payment of meter rent in addition thereto. Evidence of usage so to do was held inadmissible, such usage being inconsistent with the contract. In another case in the same State1o where the charter fixed the rates to be charged, an attempt to uphold a meter rate was frustrated by the Court. In Alabama it is held that a gas company whose rates are fixed by the city cannot charge a meter rent when consumption does not reach a certain limited amount each month. In New York12 the Supreme Court decided that under a statute providing that no gaslight corporation should charge or collect rent on its meters in either a direct or indirect manner, it was unlawful to make or enforce a service charge to the consumer based on the capacity of the meters which it called a minimum gas service bill, which meant that in case of a consumer who did not use up to a certain limit of gas a month a charge would be made outside of that amount fixed for the gas itself. At the close of the opinion it was suggested that the charge was voluntarily fixed by agreement, and that it could not have been forgotten when

11

8 City of Columbus v. American

Gas Co., 149 P. 402.

9 Capital Gas Co. v. Gaines, 49 S. W. 462.

10 Louisville Gas Co. v. Dulaney, 100 Ky. 405; 38 S. W. 703.

11 Montgomery L. & W. P. Co. v. Watts, 165 Ala. 370; 51 S. 726.

12 Buffalo v. Buffalo Gas Co., 80 N. Y. S. 1073.

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this was done that some people would take so small a quantity of gas that it would make their business undesirable and unprofitable, and "presumably, as a condition of securing from the municipality certain rights and privileges, a schedule of rates was adopted which, taking into account the entire business, would yield adequate returns in the way of profits." In the principal case the Court says: "The familiar means used by public service companies furnishing gas, water, or electricity to secure prompt payment are the requirement of certain deposits, a charge for meter service, a minimum charge, even when no product is used, a penalty for non-payment, and the shutting off of the supply. When the gas company made its contract with the city, it was doubtless familiar with these means ordinarily employed to insure the collection of a legal or proper charge, but the only one of these mentioned in the ordinance was the provision that the company should have the right to shut off all gas from any consumer in arrears for a longer period than 15 days. No mention was made of a deposit, a minimum charge or a penalty for non-payment. It made a contract with the city and accepted its franchise on a basis of charging its consumers no more than the rate specified. By requiring a deposit of $5 from each patron a fund would be created the interest on which would be of value, adding materially to the income arising from the contract rate, and, of course, an addition of 5 cents a thousand for non-payment at a certain time in the month is plainly an additional charge."

KILLING ANIMAL IN SELF-DEFENSE.-In State v. Ward13 the Supreme Court of Iowa decides that one charged with killing deer in violation of the statute law of that State may show in justification that a deer, when killed, was on his premises, destroying his property. The Iowa statute seeks to establish title in the State to all wild game, whether dead or alive." The Supreme Court of Iowa says that "this title was fully recognized by the defendant at every step. No attempt was made by him to appropriate or conceal the carcass of the slain deer. On the contrary, he immediately notified the public authorities and tendered the carcass to the appropriate officer." The opinion of the Court continues:

"It will be noted that the deer was killed not only while upon the defendant's premises, but while he was actually engaged in the destruction of the defendant's property. Giving the testimony the fullest credence, the deer was one of great voracity. He was capable of doing, and was threatening to do, great injury to defendant's property. By way of analogy we may note that the plea of reasonable self-defense may always be interposed in justification of the killing of a human being. We see no fair reason for holding that the same plea may not be interposed in justification of the killing of a goat or a deer. The right of defense of person and property is a constitutional right (art. 1, sec. 1, Const. Iowa), and is recognized in the construction of all statutes. If in this case it was reasonably necessary for the defendant to kill the deer in question in order to prevent substantial injury to his property, such fact, we have no doubt, would afford justification for the killing (Aldrich v. Wright, 53 N..

13 152 N. W. 501.

H., 398, 16 Am. Rep., 339). We do not presume to pass upon the weight of the evidence tending to prove the fact of reasonable necessity. It is sufficient to say that the evidence would have sustained such a finding if made by the trial court. The case was tried below on the theory that such defense was not available. It will be noted that the act of killing, as contended by defendant, was wholly defensive and preventive. Whether a deer may be lawfully killed today by way of retaliation for the damage wrought by it yesterday, or whether it may be so killed by way of reprisal for damage wrought or threatened by other deer, are questions not involved herein, and we do not purport to pass on them."

PROXIMATE CAUSE OF INJURY.-In a late case in Washington it was alleged that the defendant, through its agents or employees, left certain dynamite caps exposed at a place on its premises that was frequented by small children, and there was no evidence that the defendant ever objected to their presence. There was no danger sign anywhere about the plant except on the door of the machinery building. The explosives were habitually kept in a careless manner in a clay pit, guarded by nothing more substantial than a wooden door, which was never locked.

"On or about the 1st day of April, 1913, Eric Hilton and Ray Martin, two boys who were then attending the public school, went over to the defendant's brickyard after school, one of them said, looking for lizards in the soil pit. They found in one of the buckets of the elevator, used for hoisting soil from the pit, near the bottom, a partly filled box of dynamite caps. These they took and hid, and on the next day carried some of them to school. There was evidence tending to show that while these two boys and the plaintiff, Jesse Mathis, then a boy about eleven years old, were running and playing together on the school ground one of the caps fell from the pocket of either Ray Martin or Eric Hilton, probably the latter, and was picked up by the plaintiff, who said he saw it before it struck the ground. He carried this cap for a few days in a pocket of his overalls, showing it to no one. He did not know what it was. On Saturday the plaintiff's mother washed these overalls and removed the cap with a large number of other trinkets from the pockets, placing them on a desk in the sitting room. The plaintiff, finding it there, picked it up and undertook to pick the substance out of it with a hairpin, when it exploded, mutilating the thumb and three fingers of his left hand and injuring his left ear, resulting in the loss of the fingers and thumb and a permanent impairment of his hearing."

The action was for personal injuries, and the Supreme Court of Washington reverses a non-suit granted to the defendant. It was held that a question was presented for the jury whether the acts of either of the boys, Ray Martin and Eric Hilton, or of the plaintiff's mother, amounted to an "independent, intelligent, intervening, efficient factor, interrupting the chain of causation," so as to relieve the defendant, or whether the defendant's negligence was the proximate cause of the injury. The Court said:

"Whether, prior to the time when the cap which caused the injury came into plaintiff's possession, Eric Hilton knew that such caps could be ex

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