arily and naturally produced the acts of the others.

In conclusion the court said, "I will not say that ascending in a balloon is an unlawful act, for it is not so, but it is certain that the aëronaut has no control over his motion horizontally; he is at the sport of the winds and is compelled to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff, at a short distance from the place where he ascended. Now if his descent, under such circumstances would ordinarily and naturally draw a crowd of people about him, either from curiosity or for the purpose of rescuing him from a perilous situation--all this he ought to have foreseen and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled perhaps by the double motive of rendering aid and gratifying a curiosity which he had excited. Can it be doubted that if the defendant had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the inclosure? I think not. In that case they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly liable for all the injury sustained."

This case came out of the city and State of New York, about the year 1822. The second case comes from near Richmond, Virginia, where the cause of action originated in 1893, and after being ventillated by lawyers and courts, reached an end in 1897.

In this case a street railway company was the defendant, and ran its cars to a park. This park was owned by the company, was under its control and management, was kept

opened to the public and was made attractive in various ways, to induce people to make it a pleasure resort and thereby gain patronage for the street railway. The defendant employed and paid one Peter Blum, to go upon their park premises and make three balloon ascensions, on separate dates. The defendant advertised these performances in the newspapers, by handbills and otherwise, and in this manner extended to the public an invitation to visit its premises and witness the balloon ascensions. This invitation drew a large crowd to the defendant's premises, and on the evening of the last day advertised, there were many children present, among them the plaintiff's intestate, a little boy eight years and six months old.

In arranging for the balloon ascension, two poles, each about forty feet long, were placed in an upright position fifty feet apart and secured by guy ropes attached to stakes driven in the ground. A rope was run from the top of one pole to the top of the other, and the balloon was swung to this rope, until inflated and ready to ascend, when the guy ropes were released and the poles were thrown down. By the evidence it appeared that the crowd generally knew nothing of the danger they would be in from the falling of the poles and supposed the poles were fixed and stationary; that the grown people, as well as the children, had crowded around. the poles, watching the inflation and other preparations for the ascension. As the balloon was about ready to go up, Blum made some effort to clear away for the first pole to fall, and a signal was given to look out. The people took this to mean that the balloon was about to go up and it created great excitement and running for better points of view. At this juncture the pole was released and fell, striking the plaintiff's intestate on the head and killing him.

The first proposition of law the above situation suggested, was that when one expressly or by implication invites others to

come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. Next it was immaterial how the deceased went to the park, whether he walked or paid his fare on the street cars, or by some other mode of conveyance. The gravamen of the action is the negligent failure of the defendant to use proper care to protect the deceased from a danger on its premises while he was there at the defendant's invitation. It was the duty of the defendant to exercise due care in keeping its premises reasonably safe for those persons it had invited to come upon them to see a balloon go up.

When man flies, whither he listeth, there may have to be a radical change, or at least some modification in that old maxim, he who owns the soil owns it up to the sky. Owning it up to the sky, how is a balloon to fly without trespassing upon your or my flume of air? Will the flyer be required to purchase his right of way througn the air from the proprietors, or will the adage be a legal fiction then so as to permit him to go free? While legally and necessarily according to this old maxim, the aëronaut must be a trespasser when he sails, yet he will be one who will do no damages in going into and out of my flume of air, hence we venture to predict that the law will never recognize any right of recovering for trespassing through my air shaft unless actual damage results therefrom.

There will be other questions to be determined in that flying era. Will the aëronaut be able to acquire a right of way in and out of your or my air flume by prescription, by occupation for twenty-one years, so that we might not be able to dislodge him after his right had become firmly and legally attached thereto by time? Suppose I shall own an acre or two across which some flyer will accustom

himself to cross in starting from his station, and which would be recrossed in returning thereto. This passage might be at an altitude of a hundred feet. He would use this right of way for sufficient length of time to ordinarily give it to a user by prescription. At length I should decide to erect a twenty story house on that acre lot which would simply wipe out of existence his right of way through my air flume. Perhaps all of us will have to have twenty-story houses in that day from which to launch our flyers. Would the owner of the right of way of the dirigible, or what not, be able to restrain me from building my skyscraper, or would I, having built, be liable to him in damages for a trespass upon his right of way acquired by prescription, or will it be decided that no right of way can be acquired by prescription in air flumes, and that any user of the same may at any time be ousted by the owner of the soil underneath?

Another inquiry suggests itself. Suppose one air ship collides with another in my air shaft, and the machines ceasing to fly, sink to earth and in reaching it wreck valuable improvements upon my soil. Will the owners of the two machines be liable to me for the injuries done my property, or if the accident occurred through the fault of one of the flyers without any contribution on the part of the other, will lack of contributory negligence absolve the one flyer from all damages in dropping through space on me, and saddle the entire bill on the machine responsible for the accident? Or will the noncontributing machine be responsible for the reason of being a trespasser ab initio in my air flume? Will a right of way over my property by prescription be such laches on my part that I will assume all hazard of trespassing flyers? Or will I, in order to protect mý property, be required to keep a reflector operating up my air flume signalling, "Stop, look, listen, no trespassing by flyers permitted."

The following are ventured as the answers of the legal sphinx in the era of the air ship to the flying riddles proposed. Flyers will not be compelled to purchase rights of way through the atmosphere, nor will rights of way be acquired by prescription. Flyers will not be trespassers on your or my air shafts as there will be no damages to you or me by the passing of the air ships through them. Flyers will have to have places of ascent and descent with egress and ingress to the same, and they will have to own enough soil to furnish this and prevent themselves from being built out of aerial stations by skyscrapers. The owner of any machine causing any ac cident will be responsible for its results. The owner of the soil will at no time assume the hazard of being upon the earth with machines in the heavens moving over his life, liberty and property.

The cases already cited determine that flyers will have to start from their stations with all the care and caution of a limited from a terminal. Necessarily they will have to advertise their business and movements. There will be persons impelled by curiosity, others as travelers to go where the flyer is preparing to fly. There will have to be a proper care to protect them from danger. The station and its neighborhood must be reasonably safe for mortals to be in. If the flyer be of eccentric habits, there will have to be due caution and care to provide against the risks of such eccentricities. If for the want of the same, one is injured, or if in starting the machine pulls over a few chimneys, digs a hole in a skyscraper, the law will compel the owner of the flyer to pay all damages. That is, if process can be obtained, for we venture to say that the laws regulating the service of all kinds of processes will have to be changed to meet the new order of things. Sheriffs will have to live in air ships and services will have to be good wherever caught, or there will be a deluge of bailiff jumping as to outdo anything the world has yet seen in that line.

In descending the navigator of the sky will not be able to come down in my garden and tear up all my vegetables, without paying me for the value. Ascending or descending there may be such perilous situations as may invite multitudes to go to the rescue. However, in extricating those in peril, the latter will have to pay as prize money all damages a multitude of heroic rescuers may do. If an anchor to an air ship is allowed to drag and go skipping across country, picking up to destruction a cow, part of a roof or anything else of value, the owner of the machine can expect to answer for the same.

It is to be expected that the operators of the flyers will largely perform their work subject to the hazard of their employment. If aught is done to the machinery or the gearing or any part of the flyer by the employé, whereby he meets with an accident, it will, of course, be such contributory negli gence on the part of the employé as to make it impossible to legally resort to the employer. If the employé goes up in the discharge of his duties, and meets a tornado or simoon, which the weather bureau had not been able to get track of, and is stripped of a wing or the propeller is jammed, it will be an act of Providence, and in accepting the employment, the operator accepted the hazard of everything Providence might put in his way or do unto him. If, however, a wireless came out of the heavens telling that it was not safe for flying things to be abroad. among the winds, and the employer, notwithstanding the wireless warning, sends the operator on a trip, the hazard will likely be transferred to the employer and the employé on such rare occasions will not be nonsuited.

As to passengers it may be surmised that those who have paid their fares for a safe journey will not only be entitled to what their tickets called for, but also a safe going up and coming down. Deadheads will take their lives in their hands when they step aboard a flyer. If having paid for a safe trip,

a passenger is placed in peril of his life, and crys aloud for help, so that some good flying Samaritan rushes to the rescue, and thereby does damages to the cabbages of a third party, surely the passenger will not be liable for the broken cabbage heads. His ticket will be held to pay to be rescued and the flying navigating trust of those days must answer for all trespasses committed in attempts to rescue him from any peril. The passenger will also be able to fall back upon the same concern for all injuries received on the fly, and his administrator or executor for the value of a long projected fly into immortality.

Suppose while on a trip a cyclone descend

ed from nowhere, and gathered the flyer into its revolving bosom, will the trip be at the hazard of the passenger when the company has done the utmost in its power to provide for a safe journey? A point will undoubtedly be reached where the court will say that leaving earth was the voluntary act of every passenger and that to a certain extent they would take the risk of all hazards which could not be foreseen and provided for.

In those flying days it is even conceivable that there shall be lawyers, who, having inade a specialty of the laws of moving things that be above the firmament, as well as that through which they move, will have well established reputations as legal sky pilots.

T

HE lawyers of Lancaster, Mo., have a curious habit in making their statements and arguments to juries, of presenting a certain proposition to one man on the jury and making a personal appeal to him. For instance, Col. C. C. Fogle will say, when representing a much-abused defendant: "Don't you see, Tom, that in the light of this evidence, taking all the facts as they have been presented, that under no possible hypothesis. could you find the defendant guilty. You see that, too, Bill, don't you? Of course, you do."

Tom and Bill, whose intelligence has been so earnestly appealed to, are jurymen. And during the speech every one of the twelve will be singled out in the same familiar way, and asked to find the defendant innocent and send him home a free man to his waiting wife and ten anxious little children. No man on the jury is missed. It would be dangerous to show marked attention to a few and let the balance go.

The county of Schuyler is small, and all the older attorneys there know about every man in it, and a great deal of his family history. But visiting attorneys do not enjoy this advantage, and as a result they frequently go down in defeat because of their inability to address the jury from the vantage ground of a long-time friendship.

A few years ago a farmer sued the Wabash road for the killing of an antiquated mule, whose natural death would have taken place in a few days if a merciful engineer had not knocked it some mile or so skyward, and relieved it of its sufferings. It was plainly an effort to sell the carcass to the railroad company, and the railroad was making a hot fight to keep from buying the valueless quadruped.

In his opening statement plaintiff's attorney pursued the usual tactics of appealing to the jurymen by their first names, and pattingthem familiarly on the knees to emphasize a point. The railroad attorney quickly gauged

the advantage promised by this course, and asked permission to poll the jury and get their full names. He had a diagram of the jury box on a card, and as the names were given he wrote down Tom, Jack, Bill, Luke or whatever the first name was, on his card, taking care to see that each was assigned to the proper place on it.

The case continued all afternoon, and there was an adjournment for supper. At the night session the road's attorney made the closing argument for the defendant, in which he very cleverly followed the home attorney's method of appealing to individual jurymen, he having evidently studied his jury diagram to good advantage.

The case was at last submitted to the jury. Everybody thought the defendant would get the verdict in short order, as it had pretty well established the plaintiff had driven his venerable mule on the right-of-way through a fence-gap of his own construction.

At

But there was a hitch somewhere. midnight the court sent out for the jury. They came in red-eyed and vengeful looking. They were asked as to the probability of a verdict. Ten men shook their heads dejectedly, but the foreman, a stalwart lumberman from Red Brush, said:

"We ain't right together on the evidence, yet, your honor, but if you'll give us a little more time, I think I can get 'em to look at this thing right."

From this it took no seer to infer there were about eleven hard-headed men on that jury. The court studied the matter for a few moments and then ordered the sheriff to take them back. It was three in the morning when the jury voluntarily reported. The foreman's face wore a triumphant expression as he answered, "Yes," to the usual

question as to whether a verdict had been reached. The decision was for the plaintiff and double damages were awarded him! On a poll of the jury the foreman and one other answered with decision that that was his verdict. The others were a bit weak in their responses. The verdict was filed and the jury was discharged.

The road's attorney stayed over to investigate. He got a juryman to one side and a flood of light was thrown upon the singular action of the peersmen.

"It was just this way," said the juryman, as a weary expression crossed his face; "the minute we took a vote on it there was ten of us for you, and two for the fellow who owned the old mule. At first the case looked to us plain enough for a Chinaman, but the trouble was, in talking to the jury you got Jim Dowell, that's the foreman-you got him and Lige Simpson mixed. Jim and Lige ain't good friends, having had a fallin' out over a calf last fall, and every time you said so and so, Jim, and called him Lige, why Lige cussed, and when you palavered to Lige and called him Jim, then Jim cussed. You see, after supper they changed seats, and I guess that made it come wrong on the card you had. It warn't your fault, and we was all for you, but Lige and Jim was agin you from the start. We didn't want to stay cooped up there all night, and so we got to thinking it over, and concluded they might be right after all, and so we let 'em 'convince' us that way. Some of the boys said Jim had a knife and Lige an old gun in his boots, but we didn't keer for that. We just let 'em arger us into it by 'reasonin'."

The railroad company, however, managed to get the best of the "reasonin'" in the Appellate Court, and the case was reversed.