tice of the presence of the canal boat and her pilot knew he would have to pass close to her. The "New York" was held liable for the damage, as it was her duty to have waited below the landing until the Norwich" had passed, or else to have stopped her paddlewheels while passing the canal boat.

In De Lelle v. The Atalanta, 34 Fed. 918, a steam yacht was passing down North river at a speed of less than fourteen knots an hour, creating waves about the same size as those of the largest steamers plying that river. Through the suction and swell caused by the yacht a canal boat discharging brick at a dock was seriously damaged. The yacht passed about one-half mile from the shore, and was in the habit of slackening her speed when she received any signal from the dock indicating that a vessel was there unloading. On the day of the accident she heard no signal and did not slow up. The canal boat was in plain view of the yacht. In holding the yacht guilty of negligence, Judge Brown, speaking for the court, said: "The heavy swells from steamers that make waves from one to three feet high are not, however, such ordinary incidents of navigation as boats are bound to take the risk of, whether large or small, new or old. On the contrary, it has been the settled law since the use of steamers in navigation, that, in plying about rivers and harbors where their swell and suction are likely to produce injury to other craft following their legitimate business, steamers must give heed to their presence, and by slowing, or stopping the engine temporarily, as the case may be, avoid doing them unnecessary damage."

In The Majestic, 44 Fed. 813, an ocean steamer, while passing up New York bay, passed a tug with heavily laden canal boats lashed on either side. A displacement wave produced by the steamer struck the tug and threw her with such force against one of the tows as to break in the side of the tow. The steamship had been running at a rate of eleven or twelve knots an hour but had reduced her specd to seven knots an hour. It was held by the district court that the steamer was liable for only one-half of the damage, because the tug had failed to turn so as to take the waves from the steamer end-on. But on appeal to the circuit court of appeals (The Majestic, 1 C. C. A. 78, 48 Fed. 730), the steamer was adjudged wholly liable for the injury. Said Judge Lacombe, speaking for the court of appeals: "The captain of the 'Majestic' testified that, at the lower rate of speed, her displacement wave would have no effect whatever at the distance of one thousand feet. The fact that the tug and the tows were in shallow water no doubt increased the swells, but it seems probable that the wave which did the damage was thrown off while at the higher rate of speed, and that the steamer passed considerably nearer than half a mile. Be that as it may, however, it is plain, upon the proof, that a wave was thrown up by the steamer, which made navigation unsafe for the canal boat, although she was, so far as appears, a proper craft to navigate the waters of the

upper bay, and was attached to her tug in a proper way for towing with the natural conditions of wind and waves, such as they were on that day. If, when moving at seven knots an hour, and the distance of half a mile, the 'Majestic' produces such results, then there is something in her size or build which makes it necessary for her officers to be watchful of craft they pass at that distance, as well as of those in the immediate vicinity, and to regulate her motions accordingly. It will not do to say that the swell she throws is no higher than such as are produced by a high wind in these waters. A high wind had not, on this particular day, rendered the bay unsafe for river craft. They were entitled to navigate there, and the proposition cannot be maintained that harbor waters may be put at all times and at all seasons in as perilous a condition for smaller craft, by the rapid movements of large ocean steamers, as they are occasionally by the prevalence of a gale of wind. Such waters are not to be appropriated for the exclusive use of any one class of vessels. We do not mean to hold that ocean steamers are to accommodate their movements to craft unfit to navigate the bay, either from inherent weakness, or overloading, or improper handling, or which are carelessly navigated. But of none of these is there any proof here, and, in the absence of such proof, we do hold that craft such as the libelants have the right to navigate there without the anticipation of any abnormal dangerous condition, produced solely by the wish of the owners of exceptionally large craft to run them at such a rate of speed as will insure the quickest passage. To hold otherwise would be virtually to exclude smaller vessels, engaged in a legitimate commerce, from navigating the same waters. Nor will it do to say that the 'Majestic' was navigating in the way and at the speed customarily adopted by vessels of her class. If such way and speed cause injury to a seaworthy craft of a kind properly in these waters, and properly handled, the custom will have to be modified, or the privilege paid for."

In The Kaiser Wilhelm der Grosse, 134 Fed. 1012, a large steamship passed near a dock at which a lighter was discharging. The displacement of waves by the steamer caused the lighter to dump a large part of her deckload. The steamer was going at the rate of about twelve nautical miles an hour. She was held guilty of negligence and liable for the damages resulting from her swells. There are two cases which do not agree with the general doctrines to be drawn from the above cases. Thus in The Daniel Drew, Fed. Cas. No. 3565, a canal boat in tow of the tug "Ohio" was injured by the suction of a passing steamer while both were navigating on the Hudson river. The steamer was going at its usual rate of speed and did not slacken speed when passing the tug and tow. Said the court: "These several steamboats were engaged in a lawful occupa tion, upon a great public highway, and by the use of lawful means. The Hudson river is a national watercourse, open to all who choose

to use it. The owners of the 'Ohio' had the right to navigate it with their steamboats and tows. The owners of the canal boats had the right to be towed thereon by the steamboat. The Daniel Drew was engaged in an occupation equally legitimate. Her owners had the same right to the use of the river for the purpose of carrying passengers upon their vessels, that the 'Ohio' and her tow had for their purposes. All had the right to its use, in the manner necessary for their lawful pursuits. The 'Ohio' occupied a much greater width of the stream than did the 'Drew.'. . . . The 'Drew,' on the other hand, requiring little room upon the surface of the river, found speed in passage indispensable to the success of its business, necessarily causing more swell and agitation than is made by the slower passage of a towboat. There is no law which limits the space a boat may occupy, or which prescribes how fast it may go, or how much swell it may cause, or how near it may pass to another boat. The rule of permission or of restriction depends in each case upon the reasonableness of the thing done. A dull sailing tow may not occupy unreasonably the entire channel of the river, and thus impede its navigation by all other vessels. A leviathan may not rush through the water with a speed that will overwhelm in its surges all the craft ordinarily to be found upon the river. Nor is a large vessel, under all circumstances, absolutely liable for an injury caused by its swells to an inferior vessel. The waters are open to the use of all kinds of crafts, large as well as small, and, while the rights of the smaller are to be carefully guarded, they are not to be made a pretense for excluding, or preventing the practical use of, larger or different vessels. Sea-going steamers move at a rapid rate of speed. They are large and bulky. They necessarily create much motion in the water. Vessels used in the bays and harbors and in the rivers near New York, for the carriage of passengers, are built for speed, and without speed their trade would soon come to an end. Their speed also creates much motion in the waters. Is there any rule of law which prescribes that these vessels shall absolutely be liable for injuries occasioned to smaller craft by a swell or motion caused by their passage through the water? Is there any greater or more stringent test of liability than that a large vessel shall use its large powers with care and diligence, and in the mode recognized by those accustomed to the business in which it is engaged, as being prudent and proper? . . . . If an overtaking and passing vessel, in prudent navigation, creates swells and suction, arrangements must be made that boats in a tow shall not be injured thereby. If the swell and suction created by the passing vessel are those to be expected in the ordinary navigation of a rapid vessel, which is managed with prudence and equipped and constructed in a suitable manner, and if the passing vessel has no reason to apprehend that she will do an injury, and a tow is injured thereby, the passing vessel is not responsible." This case is quoted with approval in Bell v. New Jersey

....

S. B. Co., 54 App. Div. 526, 66 N. Y. Supp. 1031, where it was held error to charge that in navigating rivers where small boats are accustomed to ply and may be reasonably expected, a steamboat is bound to navigate with caution and at a rate of speed sufficiently slow to avoid danger from her attending swells. But the rule announced in these two cases is opposed to the decided weight of authority, and in the recent case of The Asbury Park, 144 Fed. 553, the court referred to the "Drew" case and refused to follow it, saying that the later authorities had established a different rule. In this case the steamer "Asbury Park," while steaming up North river, passed a barge towed by a tug at a distance variously estimated at from three hundred to fifteen hundred feet, and though the steamer had reduced her speed her swells caused the barge to roll against the tug and was damaged. It was proved that the steamer generally passed tows at the reduced rate of speed at which she was going without injuring them, and had no reason to believe that she would cause injury to this tow, but she was nevertheless held liable.

b. Rowboats.-It is somewhat difficult to understand just what care the law requires of larger vessels to avoid imperiling rowboats by their swells, for the reason that rowboats are not classed as "vessels" within the steering and sailing rules embodied in the navigation laws of the United States. The rule requiring steamers to keep out of the way of sailing vessels and to slacken speed or stop their propellers or paddle-wheels when necessary to avoid endangering smaller craft is based mainly on the idea, as we have seen, that steamers are much more easily handled than sailing vessels, or vessels in charge of tows. But as rowboats, of all crafts, are the most easily handled, the reason for the rule which is applicable to other small craft would not seem to apply in the case of a rowboat. While the term "rowboat" does not occur in any of the cases quoted in the preceding subdivision of this note, no distinction seems to have been drawn by these cases between such craft and other small boats; and in the case of Daniels v. Carney, 148 Ala. 81, ante, p. 34, 42 South. 452, 7 L. R. A., N. S., 920, the inference is strong that the small craft which was capsized was rowboat. There are numerous authorities, however, which hold that while it is the duty of a rowboat to keep out of the way of a steamer, the latter would not be justified in negligently running her down: Wiggins Ferry Co. v. Redding, 24 Ill. App. 260; Conley v. Maine C. R. Co., 95 Me. 149, 45 Atl. 668; Bigley v. Williams, 80 Pa. 107; Philadelphia etc. R. R. Co. v. Adams, 89 Pa. 31, 33 Am. Rep. 721; Fischer v. Camden Ferry Co., 124 Pa. 154, 16 Atl. 634; Sekerak v. Jutte, 153 Pa. 117, 25 Atl. 994; Bulloch v. Lamar, Fed. Cas. No. 2129; The Mississquor, Fed. Cas. No. 9649, 8 Ben. 6.

a

It does not appear, however, from these cases that a steamer is bound to guard against the effect of her swells upon rowboats, by

slackening her speed, changing her course, or stopping her paddlewheels, as she is in the case of other small craft. For in Fischer v. Camden Ferry Co., 124 Pa. 154, 16 Atl. 634, a rowboat occupied by boys, while crossing the Delaware river, was capsized by a ferry and one of its occupants drowned. The rowboat was directly across the path of the ferry and the accident could have been avoided had the rowboat been properly managed. While the court asserted that the ferry would not be justified in recklessly swamping the rowboat, it also declared that when a rowboat is discovered at such a distance that a few strokes of the oårs would enable it to get out of the way, those in charge of the steamer would have the right to assume that those in charge of the rowboat will exercise the proper skill to avoid her, and that if the accident resulted from the ignorance of those in the rowboat, the steamer would not be to blame.

And in Carter v. Seaboard Air Line Ry. Co., 151 Fed. 531, a young man, nineteen years of age, while passing up Elizabeth river in a batteau, was drowned as the result of a collision, between the batteau and one of the defendant's barges in tow of a tug. It was proved that the tug and tow were navigating too close to the piers and also going at too great speed and without sufficient lookout. But it also appearing that the batteau did not use proper precaution to get out of the way, the tug was only held liable for one-half of the damages assessed.

It would seem from the above cases that a steamer is not bound to observe the same care to avoid collision with rowboats as she is with reference to other craft, and therefore by analogy the rules governing her duty to avoid imperiling smaller craft by her swells would not appear applicable to rowboats.

ENGLE v. SIMMONS.

[148 Ala. 92, 41 South. 1023.]

MARRIED WOMAN, Action, When Proper in the Name of.If, through the wrongful act of the defendant, a wife is thrown into a state of excitement, bringing on labor pains and resulting in miscarriage, an action is properly brought in her name. (pp. 60, 61.)

MARRIED WOMAN, Trespass Committed at Residence of, Leading to Injury to.-If a trespass is committed at the residence of a married woman and her husband, on account of which she suffers personal injury, it is not material whether the title to the property where she was residing was in her or in him. Whether it was in him or her, she may maintain an action for the injuries suffered by her. (p. 61.)