sistent, so that no evidence appears for impeachment of such proceedings in the probate court. We are of opinion that the trial court committed no error in its instruction to the jury accordingly.

3. The objection that actionable negligence was not established as the cause of death is urged under these contentions: (a) That the doctrine "res ipsa loquitur" is not applicable, because the intestate was not riding on the train in the relation of passenger, but as a servant of the company; (b) that the "Kansas fellow servant act" is not applicable to such case; and (c) that the plaintiff is not entitled to the benefits of such act, in any view, for want of notice of the injury, as required by an amendment in 1903.

The first-mentioned contention is untenable, as we believe, in the view in which it is pressed in the argument, namely, that the carrier is not liable for an injury to the servant thus riding to or from his work, without proof of negligence on the part of the carrier other than the mere fact of the collision of trains, although it be assumed that the statute of Kansas imposes liability for the negligence of fellow servants. Under the common-law rule of liability, the distinction is well settled by the authorities between the case of a passenger and that of a servant on the train, in the proof required to charge such liability for injury arising from collision or other accident, and that "the fact of an accident carries with it a presumption of negligence on the part of the carrier," in favor of the injured passenger, while no such presumption is raised in favor of the injured employé, who must prove affirmatively that the employer was negligent. This rule is distinctly recognized and stated as resting, in the one instance upon the breach of the contract to carry the passenger safely, and in the other upon the relation of master and servant, with its assumption by the latter of risk for negligence of fellow servants, the frequent cause of such happenings; hence the burden cast on the emplové to prove negligence for which the master is chargeable in such case. Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361, and cases cited. Whether such rule of distinction is applicable to the case of an employé (as in the present instance), injured or killed by collision of trains, during his conveyance by the employer, pursuant to contract, from his place of work to a lodging place, in the absence of controlling statutory provisions, is a question not free from difficulty, in the light of the various authorities, but its solution is not deemed needful, in view of our conclusions upon the effect of the Kansas statutes referred to. If the employé thus in course of such conveyance under agreement with his employer, a common carrier, is relieved by the statute from the common-law rule of assumed risk for negligence of fellow servants in such service, no ground exists for the above-mentioned distinction, under that rule, between the obligation of the carrier to the employé thus carried and its obligation to the passenger under his contract for transportation. As stated in the early and leading case of Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 191, 10 L. Ed. 115, and frequently approved (3 Notes U. S. Rep. 810), the undertaking for carriage is "that so far as human care and foresight can go he will transport them safely." The prima facie breach arising from the accident is

alike in both cases, and thus "the happening of an injurious accident" (as in a passenger case, Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 443, 11 Sup. Ct. 859, 35 L. Ed. 458), is "prima facie evidencé of negligence on the part of the carrier," and casts the burden of proof upon the carrier "to show that its whole duty was performed." We are satisfied, therefore, that proof of the collision unexplained authorizes recovery for the death of an employé so riding on the train, unless the Kansas statute is without force under the circumstances. The statute known as the "Employer's Liability Act," adopted in Kansas in 1874 (section 1, c. 93, p. 143, Laws 1874; paragraph 1251, Taylor's 1889 Compilation of General Statutes), reads as follows: "Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés to any person sustaining such damage."

This provision was upheld and construed, in Missouri Pac. Ry. Co. v. Haley, 25 Kan. 35, 53, to embrace "only those persons more or less exposed to the hazards of the business of railroading"; and it is plain that the employé in question was within such definition of service and exposure. The contention that he was not entitled to its benefits, because not engaged in the operation of the train, is without merit, under the denial of such distinction in Union Pac. Ry. Co. v. Harris, 33 Kan. 416, 418, 6 Pac. 571, and in subsequent decisions reviewed in Missouri, K. & T. Ry. Co. v. Medaris, 60 Kan. 151, 55 Pac. 875. While the last-mentioned decision is cited in support of the contention, it is applicable only for its recognition of the rule as above stated. Both facts and ruling are clearly distinguished in the opinion from the circumstances of the present case. In reference to the Iowa cases, cited as supporting the contention, it is sufficient to remark, as stated in Union Pac. Ry. Co. v. Harris, supra, that the statute construed in these recent decisions is materially changed from its original provision, adopted in Kansas, and the rulings thereunder furnish no aid for the construction sought here of the Kansas statute. We are impressed with no view which excludes the employé in question from the benefits of the act, either under its terms or in any interpretation by the Supreme Court of Kansas brought to our attention.

The remaining objection raised against such benefit is predicated on an amendment of this employer's liability act, adopted in 1903 (Laws 1903, p. 599, c. 393), in a proviso as follows:

"That notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident."

This proviso was adopted in March, to go into effect July 1, 1903, while the injury and death in question occurred April 26, 1903. Whether it would require notice to be given by a person injured prior to the date so fixed for the amendment to become operative needs no determination in the present case, under our view of its terms as inapplicable to recovery by representatives for an injury causing death. As notice cannot be given "by or on behalf" of the de

ceased, and the representatives entitled to recover damages are not "the person injured," it is obvious that no provision is expressly made for notice in such cases. The purpose of the requirement in cases of alleged injury is well recognized that timely notice be given to enable the party charged with negligence to investigate the facts, of which he may not otherwise be fairly advised-and the just inference is that notice of injuries causing death was not within the reasonable purpose and requirement of the proviso, and thus excluded from its terms. In any view of the requirement, however, the statute must be strictly construed, as no notice is needful at common law, and we are of opinion that the trial court rightly overruled the objections thereunder.

The judgment of the Circuit Court appears to be well supported and free from reversible error, and is affirmed.

(161 Fed. 72.)

GULF, C. & S. F. RY. CO. v. MOSELEY.

(Circuit Court of Appeals, Eighth Circuit. April 20, 1908.)

No. 2,541.

LIMITATION OF ACTIONS-TRESPASS-PERMANENT DIKES DEFLECTING CURRENT OF STREAM-ACTION FOR INJURY TO LAND-ACCRUAL.

Defendant railroad company built dikes along the bank of a river to prevent the current from washing away its roadbed. They were constructed by driving rows of large piles from five to seven feet into the earth, seven feet apart, planking between, and filling in with stone. The ef fect of such dikes was to deflect the current of the river against plaintiff's land on the opposite bank, portions of which were thereafter constantly being undermined and destroyed. Held, that the dikes were permanent structures, and that the damages for injury to plaintiff's land, both present and prospective, were recoverable in a single action, the right to bring which accrued at once when the dikes were completed and the injury commenced, and was barred in three years thereafter, under Mansf. Dig. Ark. § 4478 (Ind. T. Ann. St. 1899, § 2945), limiting the time for bringing actions for trespass upon lands.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 303-305.]

In Error to the United States Court of Appeals in the Indian Territory.

For opinion of the court below, see 98 S. W. 129.

S. T. Bledsoe, for plaintiff in error.

A. Eddleman and J. F. Sharp, for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge. The defendant in error (hereinafter designated the "plaintiff") in the United States Court for the Southern District of the Indian Territory recovered judgment against the plaintiff in error (hereinafter designated the "defendant") for damages to her land in the sum of $1,980, with interest at 6 per cent. from July 4, 1895, which judgment was affirmed by the Court of Ap

peals of the Territory, to reverse which this writ of error is prosecuted.

In 1893 the plaintiff, under the homestead law, owned a tract of land of 137 acres, bordering on the east bank of the Canadian river, in Cleveland county, Oklahoma Territory. The defendant railroad company prior to 1893 had constructed its roadbed along the opposite west bank of said river on its right of way. The Canadian river, of varying width, at the point in question was perhaps one-half mile wide under high stage of water. The stream was somewhat treacherous in its flow, subject annually to high floods, which rendered its current, when veering to the bank, destructive to adjacent lands. The bank along the plaintiff's land, owing to the sandy soil formation, was quite susceptible to disintegration from the wash of the current; and owing to the low surface of the body of the land this condition existed throughout the tract, so that the caving in of large areas of the land was an apparent inevitable result when the current was sent against the east bank of the river. Prior to 1893 the normal flow of the current was toward and along the west shore line, opposite the plaintiff's land, with the result that it was constantly making inroads on the right of way of the defendant company, endangering its roadbed and tracks, until, as the defendant claims and the testimony tends to establish, it became necessary for the preservation of its roadbed to construct at the point in question a line of powerful dikes, with the view of throwing the current back to its wonted place as at the time of the construction of the road. The effect of these dikes, the plaintiff claims, was to so deflect the natural current of the river as to drive it forcibly against the opposite shore line, undermining and disintegrating the natural barrier of the bank protecting her land.

The petition avers that in September, 1893, about one month after the completion of the dikes, the current of the river so diverted washed away of the plaintiff's land about 5 acres, in 1894 about 10 acres, in 1895 about 75 acres, and in 1897 about 5 acres. This action was originally instituted on the 11th day of December, 1897, covering the damages sustained up to that time. On the 23d day of November, 1899, an amended petition was filed, claiming damages for the destruction of 5 acres of the land in 1898 and for damages to the remaining portion of the land. A demurrer to the petition having been overruled, the defendant answered, pleading, inter alia, the statute of limitations. The trial court denied the applicability of this defense. If in fact and law this plea was good, the discussion of other assignments of error is unnecessary. The statute of the state of Arkansas (section 4478, Mans. Dig. [Ind. T. Ann. St. 1899, § 2945]), applicable to the Indian Territory, declares that an action for trespass upon lands shall be brought within three years after cause of action accrues. As construed by the Supreme Court of Arkansas, the three-year period applies to an action for damages of this character. St. Louis, I. M. & S. Ry. Co. v. Morris, 35 Ark. 612.

The defendant's contention is that the dikes were permanent in construction, and under the allegations of the petition and the proofs the injuries to the plaintiff's freehold were obviously consequential,

and therefore the entire damages could have been recovered in one action, the cause for which arose as early as September, 1893, more than four years prior to the institution of suit, which was more than three years after the damage was done in 1894. The contention of the plaintiff is that the structure did not immediately involve the entire destruction of her estate, or its beneficial use, but the damages were apportionable from time to time, and therefore separate actions might be brought to recover damages for each successive injury as it occurred. That the structure of the dikes was permanent in character, and intended by the defendant to be so, hardly admits of debate. The evidence shows that the piles, at the large end, were from 14 inches to 2 feet in diameter, and were driven down into the earth from 5 to 7 feet, and were about 7 feet apart, with caps of heavy boards along the tops. These rows of dikes were boarded up with planks from 2 to 3 inches in thickness, and were filled in with smaller stones at the bottom, and on the top with stones so large that only three of them could be loaded onto a car, which was run out along the side of the dike, and the stones were lifted in place by derricks. It may be true, in the abstract, that nothing constructed by the hand of man is indestructible. The razure of time and the process of erosion of the waters may wear away this structure. But in its relation to the practical affairs of human action, with which the law deals, this formidable, substantial work must be regarded as possessing in a high degree the quality of a permanent structure. The petition itself avers:

"That the natural and probable consequence of the erection of said dikes was to change the current and channel of said river, by turning the current over and against the east or left bank of said river and cutting and washing said bank away, and that they were built and maintained by the defendant for this purpose. * That the effect of said dikes was to, and they did, change the current of said river, and threw the same over and against the left or east bank of the same, and cut and washed the same away, and destroyed plaintiff's land, and changed the channel of said river. making the same much farther east than it ever was before the wrongful building of said dikes. That after and on account of the said building and maintaining of said dikes, at each successive rise in said river, the current was thrown over and upon plaintiff's land, and washed a portion of the same away, and destroyed it."

As if to aid this defense, the plaintiff's evidence was full and strong to the point that within the month succeeding the construction of the dikes the effect was to send the current of the river directly across to the east shore, where it began rapidly to eat away the bank, destroying 5 acres of the land, and in the following year 10 acres, and 1895 75 acres more. In the very nature of the situation, this deflection of the current to the east shore was constant-more destructive at intermittent periods of high water than at others. This characteristic of the river, its history shows, was as certain of manifestation as the coming of the seasons. The quality of the soil composing the ever-receding bank and the lay of the land rendered it so probable that this process of disintegration and work of destruction would proceed, unless arrested by human agency, as to have permitted at tangible estimation of the whole damage, within the admissibility of