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 THE GREEN BAG

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Comparing the language of the court in the Utah case above quoted with the doctrine of our own Commonwealth it would seem that the Western state had gone much too far. The so-called " elevated space " cases Will worth v. Boston Elevated Ry. Co., 188 Mass. 220, Hilhorn v. Boston Elevated Ry. Co., 191 Mass. 14, Hawes v. Boston Elevated Ry. Co., 192 Mass. 324,

cannot possibly be reconciled under such a doc trine, yet those decisions have met with repeated approval. The " jerk, jar and jolt " cases which have been so frequently before the Full Bench are entirely inconsistent with the theory of the Utah Bench. Byron v. Lynn & Boston St. Ry. Co., 177 Mass. 303. 58 N. E. 1015. Timms v. Old Colony St. Ry. Co., 183 Mass. 193. 66 N. E. 197. Weinschenk v. N.Y., N.H. & H. R.R. Co., 190 Mass. 250. Foley v. Boston & Maine R.R., 193 Mass. 332. Jameson v. Boston Elevated Ry. Co., 193 Mass. 560. Sanderson v. Boston Elevated Ry. Co., 194 Mass. 337. In the cases above cited the whole situation was under the care, custody or control of the carrier, or was caused by something connected with or related to the transportation of passengers, but the court held that there was not enough evi dence to make out a prima facie case. Res Ipsa Loquitur applies only where the entire situation is under the exclusive care, custody and control of the carrier plus the fact that the acci dent is of a kind such as does not commonly happen except in consequence of negligence. It must be shown that some appliance failed to do that which it was expected to do, that some employee failed in the performance of a duty, or that conditions were improper for the work being done. Graham v. Badger, 164 Mass. 42. 41 N. E. 61. Magee v. N.Y., N.H. & H. R.R. Co., 195 Mass. in. To say that a prima facie case had been made out if it merely appears that an accident occurred, and that an injury was sustained by a passenger, and " that the injury was caused by something which at the time it occurred was in the care, custody or control of the carrier, or in some way connected with or related to his business in the transportation of passengers " would go so far as to make the carrier an insurer of its passengers. H. J. H. COMMERCE. (Freight Rates on Goods Shipped from Foreign Country.) Wash. — The validity of a special agreement relating to freight rates on goods shipped from Norway to Seattle came up in

Fishery. Great Northern Ry. Co., 95 Pac. Rep. 77. The railroad company published a schedule of rates required by the interstate commerce act in which the charges on canned goods from Stavanger, Norway, to Seattle were placed at $1.31 per 100 pounds. Coupled with this was the statement that such rate would only be protected when the ocean charges were such as to leave a minimum of 75 cents per hundred to be properly apportioned among the railroads transporting from the sea» board to Seattle. While this schedule was posted, the defendant company entered into a special agreement with plaintiff for carriage of canned goods between the points named at a rate of 85 cents per hundred pound. When the goods arrived delivery was refused unless plain tiff would pay charges amounting to $1.137 per hundred, being 75 cents plus an ocean rate of 38.7 cents which was claimed to be the best that could be obtained, and that under the interstate com merce act the published rate would prevail over any special agreement. The court held that the agreement was not necessarily in violation of the statute and in the absence of proof that ocean competition did not justify it, would be upheld. CONSTITUTIONAL LAW. (Due Process of Law in Assessment for Public Improvements.) U. S. Sup. Ct. — An important decision on the constitutional requirements of proceedings for public improvements and the assessment of expenses thereof was handed down by the United States Supreme Court in Londoner v. Denver, 28 Sup. Ct. Rep. 708. Proceeding under the Denver city charter, the board of public works transmitted to the city council a resolution and form of ordinance authorizing certain improve ments. The ordinance was thereupon enacted and by its terms undertook to determine in substance that a proper petition had been filed and necessary preliminary proceedings had. The city charter makes such a determination as to preliminary petition conclusive. After comple tion of the work, notice that objections would be heard if filed within thirty days was published but no place or time of hearing was specified. Written objections were filed in accordance with the notice. The council acting as a board of equali zation thereafter met and proved the apportion ment of the assessments, and later on, sitting as a council, passed an assessment ordinance. No hearing was given to the property owners at any stage of the proceedings other than on the written objections referred to above, and there was no opportunity for argument or oral proof. Tlje Supreme Court of Colorado had held the pro ceedings valid in Denver v. Kennedy. 33 Colo. 80, 80 Pac. Rep. 122, 467. and Denver v. Dumars,