words without trimming; Mr. Webster plucked away his flowers of speech whose bloom and fragrance pleased him less than when first used. So too Mr. Webster tormented proof-readers and printers who had the misfortune to be engaged in putting his speeches in print; at times changing the words and forms of expression which had been used in deliberately prepared orations. But it is said that Mr. Choate, never at a loss for the word, could express clearly the very things he wished to say, and leave his words to be printed as they fell from his lips. He was so consistent in this habit that Judge Fancher could not induce him to correct the stenographer's report of one of his greatest arguments. The author thinks that "as a consequence, it may be said that he who would know these authors from their printed pages should remember that while one of them appears as in state dress, every part carefully arranged, the other appears in the unstudied dress of every-day life."

Judge Neilson has some prudent suggestions as to classical studies. The subject could not well be avoided, as such studies were part of Mr. Choate's daily life, and modified his character. Then too, as if his devotion was foolish, it had been said that such studies were unprofitable; the lessons learned soon forgotten. In the brief space which he could give Judge Neilson shows the use and value of such studies. He reminds us however that some scholars of great mental powers had suffered from the study of the ancient classics, and points out the distinction that should be observed in respect to students. He would not have them come out of college ignorant of every thing but Latin and Greek, or unduly neglect such studies, or take them up with a slothful or indifferent spirit. He says:

"It is obviously unjust, it is bad economy, to prescribe such tasks for a student without regard to his taste, or to the course of life he is to pursue. Whatever his calling is to be he must study his own language closely, critically, profoundly, and be conversant with the best authors in it. Especially must he study the Bible daily, and cultivate a love for its words and style. He may thus become a good English scholar. He must master many subjects of practical importance also, and in the history, life and contentions of the world be well informed. In all this he will be following Mr. Choate's example. But he who looks forward to a life of literary leisure, and to the highest intellectual enjoyments attainable, or aspires to one of the learned professions, must take up the ancient classics. Such studies however are to be vigorously pursued. In its early stages the work is difficult and full of discouragements. Only after much devotion, after he has passed the region of toil and pain, does the student enter into the spirit of the language, and take delight in the literature. Of that delight he who abandons the study early feels and knows nothing. It is as when two travellers attempt to climb a mountain. In the morning mist they see only the steep and stony path

under their feet. After much effort one becomes weary and turns back; the other pushes on and reaches the top. The rising sun illumines the summit, chases the shadows from the valleys, and gradually takes possession of the earth. He sits bathed in a flood of glory never before conceived; never to be forgotten."

A lawyer of genius and culture, much given to public speaking, generally has a style of his own; the thoughts and the dress of corresponding wealth and variety. It was pre-eminently so with Rufus Choate. As to the adverse criticism which falls to the lot of such men Judge Neilson declares: "Those who condemn what they cannot emulate deserve little attention." He is however disturbed by the blunders of a friendly biographer. Thus the esteemed author of the "Memoirs" says that "Mr. Choate created a taste for his peculiar style," and the judge answers:

"That taste must have been of sudden growth. His first juries understood him, his early trials, triumphs; and the people, when he appeared before great assemblies a stranger, hung upon his lips with breathless interest." Again when it is said, in substance, that Mr. Choate was conscious that his style was not suitable for an author, we are told: "Mr. Choate could say what he would, in whatever style he would, with ease and certainty. He writes and speaks as one thoughtless of mere style, and there seems to be almost no limit to the variety of tone and expression."

After what we have years ago written of Mr. Choate we need not say that we accept, and sympathize with the views of the author.

It was wise to give, as have been given, some portions of Mr. Choate's writings and speeches. The reader may have a vivid and refreshing sense of the grace, beauty, clearness, simplicity and power of his English.

The sixth chapter will be of great value to students. The question as to the Anglo-Saxon element of the English language received some attention from Sharon Turner and George P. Marsh on a narrow basis, and more at large from Doctor Weiss. In this instance the author took up the question with especial reference to the vocabulary of Rufus Choate, and the number of unrepeated words used by him, as printed, is given. Happily the work was extended. The percentage of words of Anglo-Saxon, Greek and Latin derivation in our language, as used in special efforts by twenty distinguished American and British authors, as well as by Mr. Choate, have been ascertained, and the results put in tabular forms. This work has been faithfully performed, and is more clear and satisfactory than any other work of the kind with which we are acquainted.

The author and the old friends of Mr. Choate, working in concert, have done such full and exact justice to their subject that the critic will find no occasion to add to or to abate from the analysis. The special information given by Edward Ellerton

Pratt, Mr. Choate's son-in-law, and sprinkled through these pages, is of great value and interest. We regard the book as a permanent and valuable contribution to biographical literature.

MUNICIPAL CORPORATIONS

EXCAVATION IN STREET-CONTRIBUTORY NEGLIGENCE.

SUPREME COURT OF NEBRASKA, JULY 1, 1884.

CITY OF LINCOLN V. WALKER.*

A person travelling on a public street, if he exercises ordinary care, has a right to be absolutely safe against all accidents arising from obstructions or imperfections in the street. And if a person is authorized to make an excavation in the street, he is bound at his peril to protect the same and leave the street in as safe a condition as it would be if the excavation had not been made.

In an action of negligence, where the plaintiff can prove his case without disclosing any negligence on his part, contributory negligence is a matter of defense, the burden of proving it being on the defendant.

ERROR from Lancaster county.

A. C. Ricketts and Mason & Whedon, for plaintiff. Lamb, Billingsley & Lambertson, for defendant. MAXWELL, J. This action was brought by the defendant in error against the city of Lincoln to recover damages alleged to have been sustained by him from falling into an excavation on O street, in front of block 52, whereby he sustained damages to the amount of $3,000. The answer is that said plaintiff well knew of said excavation; that it was well protected by guards placed over and across the sidewalks where they approached said excavation; that the street lamp of the St. Charles Hotel lighted up the same, and would have enabled the most casual observer to see the nature and extent of the excavation; that the injury was occasioned wholly by the plaintiff's negligence, etc. The jury returned a verdict in favor of the plaintiff below for the sum of $1,200. The city filed a motion for a new trial, in which are 41 assignments of error. The motion was overruled and judgment rendered on the verdict, but taxing the costs to each party.

The errors relied upon are to the giving and refusing certain instructions. The testimony tends to show that at the time the accident occurred a large brick building was being constructed on the northeast corner of block 52, fronting on Eighth and O streets; that an excavation of the same depth as the cellar extended into O street from twelve to fifteen feet, and from fifty to sixty-five feet in length; that this excavation was walled up a little above the surface of the ground, being about four inches above at the north-east corner, and nineteen at the north-west; that as this excavation extended across the sidewalk, a temporary fence was erected across the sidewalk on the east and west sides by nailing up two six or eight inch boards at each of said places; that a similar fence was constructed on the north side of the posts, consisting of two by four scantling five feet in length, driven into the ground about eighteen inches, and two six or eight inch boards nailed on to these posts. There were two openings left for carrying material into the building, one being near the north east corner, and the other near the north-west corner. It is claimed that these openings were closed at night, but this is denied. The distance this fence was from the excavation is not cer. *S. C., 20 N. W. Rep. 113.

tain; some of the witnesses saying it was close to the wall of the excavation, while others state it was three feet away. A temporary sidewalk from three to four feet in width was constructed around this excavation, laid on two by four inch scantling, and the fenceposts were nailed to the south side of the temporary walk. The St. Charles Hotel was immediately west of the excavation in question, and the fence around it commenced on the east side at the hotel. There was a dim light in front of the hotel, apparently at the outer edge of the sidewalk, showing the name of the hotel. O street is one of the public streets of Lincoln; the Union Pacific depot being located at the foot of the street, and there being a very large number of persons passing and repassing along said street. That on the twenty-fourth of November, 1881, the plaintiff below, being a stranger in Lincoln, left the Oriental Hotel in said city about 7 o'clock in the evening, to go to the Union Pacific depot. On inquiring the way, he was directed to go north to O street, thence west along said street to the depot. The night seems to have been very dark; and the plaintiff not knowing of the obstruction in question, while a short distance east of the same, two men passed on to the sidewalk about forty feet in front of him, going in the same direction that he was, and supposing them to be more familiar with the street than he was, he followed them, being guided by their voices. As the two persous named came in front of the St. Charles Hotel, he observed that they passed between the light in front of the hotel; and that building being considerably to his left, and he believing that he was too far into the street, stepped to the left, and fell into the excavation in question, a depth of seven feet three inches, and sustained serious injuries, by which he was rendered incapable of performing any labor for a number of months. The verdict is not too large if the city is liable.

The attorneys for the city asked the following instruction, which was refused: "The jury is instructed that before the plaintiff can recover in this action, it is incumbent upon him to show that no negligence of his contributed to the injury, damages for which are claimed herein, and that upon the plaintiff rests the burden of proof of the absence of such contributory negligence." There is no uniform rule established in regard to the party upon whom rests the burden of proof of contributory negligence. In some of the States it is held that where the plaintiff can prove his case without showing contributory negligence, the burden is on the defendant. In others that the plaintiff's case is not presumed, and he must disprove contributory negligence. In some of the cases it is held that there is no presumption as to care or the want of it and that if the facts show a duty of care, the plaintiff must give some evidence that he exercised it; otherwise not. The question is presented to this court for the first time.

In Randall v. N. W. Tel. Co., 54 Wis. 147; S. C., 41 Am. Rep. 17, it was held that contributory negligence was purely matter of defense, citing Railroad Co. v. Hunter, 11 Wis. 160; Hoyt v. Hudson, 41 id. 105; 22 Am. Rep. 714; Prideaux v. Mineral Point, 43 Wis. 524: S. C., 28 Am. Rep. 558; Bessex v. Railroad Co., 45 Wis. 477. And this seems to be the rule of the United States courts. Railroad Co. v. Gladmone, 15 Wall. 401; Railroad Co. v. Horst, 93 U. S. 291. See also Kelley v. C. & N. W. R. Co., 19 N. W. Rep. 521.

The New York rule seems to be that if the evidence shows the plaintiff's presence or conduct, or that of his servant or agent, to have been involved in the disaster, or its causes, then he must disprove contributory negligence. Abb. Tr. Ev. 596. See the New York cases cited in 18 Alb. L. J. 144,164, 184. And this rule is recognized in Massachusetts. Parker v. Lowell, 11

fancy or feeling of the court, but that the matter being one which cannot be determined by the application of definite and precise rules, it is to be acted upon in the exercise of a sound practical judgment, in view of all the relevant facts of the particular case, or to use a current expression, in view of the "whole situation." When then the propriety of an order granting a new trial for excessive damages comes before an appellate court for review the question is not precisely that presented to the trial court, as above indicated, but whether it clearly appears (for here, as elsewhere, error must appear affirmatively, and every presumption is against it) that the trial court abused its sound discretion; or as more fully stated, that it failed to exercise a sound practical judgment upon all the relevant facts before it.

Applying those views to the case in hand, we are forced to the conclusion that the order granting a new trial should be affirmed. We have no intention (especially as there is to be a new trial) of entering in this opinion into any detailed consideration of the testimony or its effect. But after a careful perusal of the settled case, and due consideration of the suggestions of counsel, we find ourselves utterly unable to say that the learned District judge erred in the exercise of his discretionary authority to grant or refuse a new trial. On the contrary, it seems to us that the reasons for his action, as set forth in his memorandum, such as the absence of actual malice, the apparent good faith of the reporter, the character of the charge, the want of allegations and of evidence of special damage, are of no inconsiderable weight.

It is to be remembered that in determining upon an application for a new trial on the ground of an excessive verdict, as on other grounds, the trial judge occupies a position of practical advantage over an appellate court, especially when, as in this instance, the plaintiff is one of his own principal witnesses. There is a certain atmosphere of the case and trial, well known to the profession, which cannot be put upon paper. Upon all these considerations we find ourselves unable to conclude that there was any failure on the part of the judge below to exercise the proper sound, practical judgment upon all the relevant facts of the case before him.

What is said in Wilcox v. Landberg, 30 Minn. 95, upon the point that an appellate court will not necessarily sustain an order granting a second or third new trial, because it has sustained one granting a first, although the facts may be substantially the same, has no application to this appeal. At the first of the two former trials of this case the verdict was not set aside on the ground of excessive damages. At the second trial the jury failed to agree. The third trial, being that upon which the order now before us was made, appears then to be the first upon which a new trial has been granted for excessive damages.

These conclusions would dispose of the case, but with reference to a future trial we observe, that as held in this case when it was here before (30 Minn. 41, 62), libels like that here charged are actionable per se, and neither proof of special damage or actual malice is necessary to the maintenance of an action therefor. The words complained of impute negligence to the plaintiff in his profession as a physician. The rule is well settled that where defamatory words are falsely spoken or written of one in his profession, prejudice to him, and malice on the part of the defamer, are implied in law. Cooley Torts, 193, 196; Bigelow Torts, 38, 40, 46; Simmons v. Hoister, 13 Minn. 249 (Gil. 232); Folkard's Starkie Sland. & Lib., § 188; Ingram v. Lawson, 6 Bing. N. C. 212.

The order granting a new trial is

Affirmed.

NOTE. (1) Excessive Damages.-See 9 Am. Rep. 200; 4 id. 593; 8 id. 661; 33 Eng. R. 736; 30 id. 769; 20 Alb. L. J. 332.

Verdicts are set aside only when they are not supported by proof, or when they are so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. Ayliff v. Hardy's Exrs., 25 Ark. 49; Kelly v. McDonald, 39 id. 387; Teras & St. Louis R. Co. v. Eddy, 42 id. 527; Benson v. Chicago & Alton R. Co., 78 Mo. 504.

In Texas & P. Ry. Co. v. Lowry, 61 Texas, 149, it was held that when a bodily injury was sustained in consequence of the negligence of a railway company, which injury was of a permanent character, inflicting great bodily pain when it was received, and for a long time afterward, it was held that a verdict for $2,000 was not so excessive as to require a reversal. See also Texas and Pacific R. Co. v. McAtee, 61 Texas, 695.

In Van Winter v. Henry County, where through defendant's negligence' plaintiff suffered a compound fracture of the left arm, and a partial dislocation of the elbow, impairing the use of the arm for life, and rendering it quite painful at certain seasons, held, that a verdict for $4,000 was not excessive. In Lombard v. C., R. I. verdict for a broken leg $2,500, but in that case jury. The leg was as

was.

& P. R. Co., 47 Iowa, 494, the was reduced from $4,000 to there was no permanent in sound and strong as it ever

In an action brought by a brakeman, twenty-seven years of age and receiving wages of $60 per month, against a railroad company for damages caused by the negligence of the company, where the permanent disability is the loss of a leg below the knee, and where the plaintiff after his injury had his leg sawed off three times before the surgeon got it right, then was confined to his room over fifty days, and during the time had the lockjaw for twelve or fifteen days so severely as to be unconscious at times, and suffered every thing that a man could suffer and not die, and upon the first trial a verdict for $8,000 was rendered, and upon the second trial a verdict for $10,000, held, that the last verdict is not so excessive as to warrant the Supreme Court to set it aside and grant a new trial solely on the ground of excessive damages. Western, etc., R. Co. v. Moore, 31 Kans. 197.

In Marshall v. St. Louis, etc., R. Co., 78 Mo. 610, in‍an action against a railroad company for carrying a female passeuger beyond her station, the circumstances were such that the plaintiff was only entitled to recover for the loss of time and expense incurred in being taken past her station and back, and the jury were so instructed. The evidence showed that she lost two or three hours' time, and paid $1.50 for a returning conveyance. There was a verdict for $1,000, reduced by remittitur to $750, and judgment accordingly. Held, excessive, and judgment reversed.

(2) Libel.-See 6 Am. Rep. 105; 18 id. 380; 22 id. 303; 25 id. 755; 30 id. 367; 31 id. 757: 58 How. 471.

In White v. Cheesbro (S. C., 16 Week. Dig. 186) the defendant charged that plaintiff, who was a merchant, was a dishonest man; that he had on various occasion, for a period of years filled defendant's can, which beld but five gallons, with kerosene oil, and had charged him with six gallons, and that it was done at the plaintiff's store. Held, actionable per se.

In an action for slander defendant cannot give in evidence specific acts of dishonesty on the part of the plaintiff without having set them up in his answer. White v. Cheesbro, 16 Week. Dig. 186.

He may deny and justify. See 2 Am. Rep. 66; 29 Eng. R. 313; 17 Barb. 649; 9 How. Pr. 282.

So in assault and battery. 9 How. Pr. 289.
A justification being pleaded must be established as

THIS

THIS was an action of tort to recover damages for the diversion of the waters of Tatnuck brook, to the injury of the plaintiff. It appeared in evidence at the trial before Judge Barker and a jury, that the plaintiff's mill is situated on the Blackstone river in the State of Rhode Island, and that in 1876 the defendant pumped water from Tatnuck brook into a reservoir for a water supply, and thereby diminished the flow of water at the plaintiff's mill. The defendant asked the court to instruct the jury that inasmuch as the plaintiff is not shown to have any interest in any reservoir or in the waters situated within this State, the diversion of the waters of a natural stream in this State and preventing the same coming to the plaintiff's mill, situated in Rhode Island, is not an act for which the plaintiff can maintain an action in this Commonwealth. The court refused so to rule. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

W. S. B. Hopkins, for plaintiff.

Frank P. Goulding, for defendant.

HOLMES, J. This was an action of tort. It appeared at the trial that the plaintiff was the owner of a mill in Rhode Island upon the Blackstone river, and there was evidence that the defendant had withdrawn enough of the waters of Tatnuck brook, a tributary of that river in Massachusetts, to materially affect the operation of the plaintiff's mill. The main question argued before us is raised by the refusal of a ruling requested that "the diversion of the waters of a natural stream in this State, and preventing the same from coming to the plaintiff's mill, situated in Rhode Island, is not a tort for which the plaintiff can recover in the courts of the Commonwealth."

The defendant's counsel contend, in the first place, that such rights as the plaintiff claims cannot extend beyond the Rhode Island line, and went the length of maintaining that servitude cannot be created in our State in favor of lands in another.

We are unable to agree to this proposition from either principle or authority. Every decision and dictum that we have found bearing on the precise point is the other way. Slack v. Walcott, 3 Mason, 508, 516; Thayer v. Brooks, 17 Ohio, 489; Stillman v. White Rock Manuf. Co., 3 Wood & M. 538; Foot v. Edwards, 3 Blatchf. 310; 14 How. 80: Wall., Jr., 274.

We think that the cases which recognize civil and even criminal liability for flowing land in one State by reason of a dam in another are hardly less pertinent. Howard v. Ingersoll, 17 Ala. 780; 39 Me. 246; 17 Ill. 534; 54 Texas, 623; 16 N. H. 357.

The defendant admits these cases to be law, and tries to distinguish them. But we cannot assent to the distinction between discharging and withholding

water. The consequence in one case is positive, in the other negative; but in each it is the consequence of an act done outside of the jurisdiction where harm occurs, and the consequence is as direct in the latter case as in the former. The right infringed in the former case is called absolute ownership, in the latter easement; but the laws of Rhode Island which make a man owner of land there have no more power to diminish freedom of action in Massachusetts than any other of its laws. A concurrence of the laws of both States is as necessary in that case as in the one at bar to create a liability which could be enforced in either State consistent with principle. Such a concurrence presents no technical difficulties, and if the substantive end to be attained is a proper one it will be recognized and acted on here, as we have no doubt it would be in Rhode Island if the position of the parties were reversed.

Of course the laws of Rhode Island cannot subject Massachusetts lands to servitude, and apart from any constitutional considerations, if there are any, which we do not mean to intimate, Massachusetts might prohibit the creating of snch servitude. So it might authorize any acts to be done within its limits, however injurious to lands or persons outside them. But it does not do either. It has no more objection to a citizen of Rhode Island owning an easement as incident to his ownership of land in that State than it has to his owning it in gross or to his purchasing lands here in fee. Questions might be conceived as to the transfer of such easements, but they do not arise here. So far as their creation is concerned, the law of Massachusetts governs whether the mode of creation be by deed or prescription, or whether the right be one which is regarded as materially arising out of the relation between the two estates; being created by the laws of Rhode Island, by permission of that of Massachusetts, lays hold of them and attaches to them in such way as it is applicable to lands there, Massachusetts being secured against any thing contrary to its views of policy by the common traditions of the two States, and by the power over its own territory which it holds in re

serve.

It was also contended for the defendant that the action could only be brought in Rhode Island. This objection is purely technical. The reasons which once made the venue important have long disappeared, and we see no reason for any greater strictness than is absolutely required by the statutes and precedents. If the plaintiff's mill was in any other county of this State an action for damages would be rightly brought in Worcester, not by public statutes only, but by the common law. As between two States, both of which recognize the right if the rule is to vary at all, it should be on the side of greater liberality to prevent a failure of justice, such as would be likely to happen in the present case if this action were not maintained. The weight of judicial opinion is altogether in favor of allowing an action to be maintained where the water was withdrawn. Most of the cases where both the action and the consequences complained of were outside the State in which the action was brought are not opposed to our conclusion, and we are not called upon to decide between Lord Mansfield in Mostyn v. Fabrizas,and Lord Kenyon in another case. The American cases have generally followed the latter.

The plaintiff asked the court to rule that the defendant was liable for damages measured by the loss of power which the whole amount of water pumped by the defendants would have made, although the defendant had introduced evidence that a certain percentage of it was returned to the river. This ruling was refused, and rightly. So far as the water returned, its withdrawal was no wrong to the plaintiff; and even if it