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to do, attended to the belt, and habitually, and with the knowledge of the defendant's officers, placed the same in position without accident, and his course of conduct in relation thereto was such as to induce the defendant or its officers to believe that he had the requisite skill for that purpose, or that he had willingly assumed the duty of so placing the belt, the defendant was not in default for not having instructed him as to any danger incident to the operation." Another instruction given by the court in lieu of the sixteenth one requested by the defendant was as follows: "But the jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was only bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe. The other instructions given by the court were modifications to a degree of those asked by the defendant, and were mere amplifications of those above mentioned.

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We do not think there was any error in any of these instructions of which the defendant has any right to complain. The propositions contained in them are in strict accord with the principles laid down by the decisions of this court. Hough v. Railway Co., 100 U. S. 213, 217; Railroad Co. v. Herbert, 116 U. S. 642, 647, 648, 6 Sup. Ct. Rep. 590; Kane v. Railway Co., 128 Ü. S. 91, 94, 9 Sup. Ct. Rep. 16; Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. Rep. 118. The general principles of law by which the liability of an employer for injuries to an employe growing out of defective machinery is tested are well settled by those decisions. Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employes. Nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was or ought to have been known to him, and was unknown to the employe or servant. But if the employe knew of the defect in the machinery from which the injury happened, and yet remained in the service, and continued to use the machinery, without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And further, if the employe himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, although it was occasioned by the defect of the machinery, through the negligence

of the employer. The state decisions in harmony with the principles laid down by this court on this subject are too numerous for citation.

We will now briefly notice the assignments of error, the first of which is that the court erred in refusing to direct the jury to return a verdict for the defendant, as requested by counsel. It is argued in support of this assignment that there is not a scintilla of evidence to show negligence on the part of the defendant as ther employer of the plaintiff; that the part of the machinery which caused the accident was not defective; that the evidence showed it to be of the most approved character, purchased without regard to cost, and such as was generally in use throughout the country that loose pulleys and a shifter or leve for shifting the belt were not used in blacksmith shops; that the plaintiff had been in the shop for nearly 18 months, and had become familiar, by constant use, with the operation of putting the belt on the pulley, and it was impossible for him not to know what danger attended its use; that the company had employed a man, competent and skillful, whose duty it was to put on all the belts in the establishment; that it was not in the line of the duty of the plaintiff to put on this belt, and whenever he did so he was acting outside the scope of his employment; and, lastly, that the manner in which the accident occurred, as described by the plaintiff himself, in failing to wait until Kline had slowed up the engine, shows that he was, by his own heedlessness and rash want of care, the author of his own misfortune. On the other hand, the evidence offered by the plaintiff certainly tended to show that the injury would not have occurred but for the defect of the fixed pulley and the projecting screw; that the machinery was unsafe, and not such as was generally used in shops of that kind, as testified to by experienced machinists introduced by the plaintiff, and the only one examined in behalf of the defendant; that he (the plaintiff) was unaware of the dangers attendant upon putting on the belt by hand; that he did not know that the belt in which he was caught had been recently, and perhaps imperfectly, repaired; that there were in the other shops of the establishment shifters and levers which could put the belt on the pulley without danger; that he was wholly unaware of the danger attendant upon putting on the belt by hand; and that he supposed he was in the line of his duty when the injury. happened. If this evidence was worthy of belief, it certainly could not be said to show such contributory negligence as would justify the court in directing a verdict for the defendant below. As a general rule, the question of contributory neg-a ligence is one for the jury, under proper instructions by the court, especially where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences. Railroad Co. v. Stout, 17 Wall. 657. Upon every question in the case-the safety or unsafety of the machinery, the ignorance on the part f the plaintiff of the danger of it, and the negligence of the

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plaintiff at the time of the accident-the | evidence was controverted, and rendered the case just such a one as this court in Jones v. Railroad Co., supra, said that "a due regard for the respective functions of the court and the jury would seem to demand that these questions should have been be submitted to the jury." In the language there used, "we see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others."

There are two recent cases in Massachusetts which are so analogous in many of their features to the case under consideration that we deem a special reference to them proper. Daley v. Printing Co., 150 Mass. 77, 22 N. E. Rep. 439, was an action by an employe for personal injuries sustained while in the performance of his duties in the defendant's mill, using an elevator operated by a belt passing over a pulley on a shaft. At the trial the evidence introduced by the plaintiff tended to show that the belt was frequently off the pulley, that there was no one in the employ of the defendant specially charged with putting it on when it came off, and that any one using the elevator put the belt on when he found it off. It further showed that the plaintiff, having occasion, in the course of his regular duties, to use the elevator, found the belt off, and proceeded to put it on, but in so doing was caught in a setscrew projecting from a collar on the shaft, and whirled around the shaft, and received serious injuries. The defendant introduced testimony to show that there was another man whose duty it was to put on the belt. At the conclusion of the testimony the trial court directed a verdict in favor of the defendant, and, the case being carried up on exceptions to the supreme judicial court, that court reversed the judgment of the court below, and ordered a new trial. In its opinion the court said: "The ground upon which the case was withdrawn from the jury is not stated; but we cannot say, as matter of law, that no sufficient evidence was introduced or offered of negligence on the part f the defendant, or of freedom from negli gence on the part of the plaintiff.

If the machinery was found to be unsuitable, and if the plaintiff was within the line of his duty in attempting to adjust the belt, we cannot say that he was not entitled to go to the jury on the question of whether he was in the exercise of due care." Myers v. Iron Co., 150 Mass. 125, 22 N. E. Rep. 631, was an action for personal injuries sustained by the plaintiffs while in the employ of the defendant. We extract from the syllabus the following: “A mine was reached through a vertical shaft by a bucket lowered by the unwinding of a rope from the uncoupled drum of a hoisting engine, and usually controlled in its descent by a brake operated by the engineer. Laborers employed in the mine entered the bucket to descend as usual; and upon word being given the engineer started to let it down, but soon found that the brake was not holding. The bucket fell rapidly for many feet, when it was sud

denly stopped by planks across the shaft, and the laborers were hurt. In actions against the employer to recover for such injuries, there was evidence that the brake, besides a loss of initial efficiency, was in design and original construction insufficient; that there were safer contrivances for controlling such a descent, some of which the defendant used elsewhere about the mine; and that gearing used in hoisting had, through wear and a change made in it by the defendant, become less useful as a possible means f stopping the bucket if the brake failed to hold, and in fact proved ineffectual to stop the bucket at the time; also, that no person had previously been hurt in going down in the bucket. Held, that the cases were properly submitted to the jury, who were warranted in finding verdicts for the plaintiff." In the course of the opinion the court said: "The risk of the safety of machinery is not assumed by an employe unless he knows the danger, or unless it is so obvious that he will be. presumed to know it." And in another part of the opinion it was said: "The plaintiffs were allowed to show that other machinery or appliances than those used by the defendant would have been safer; for example, a strap-brake, a friction V, so called, or a reversible engine. In order to aid the jury in determining whether the defendant had exercised reasonable care in providing and maintaining the machinery actually in use, it was competent to show what other kinds of machinery or appliances were used elsewhere, and might have been used at shaft No. 1. Wheeler v. Manufacturing Co., 135 Mass. 294, 298. It does not follow from the introduction of such evidence that the defendant was bound to use the very safest or newest, or any particular, machinery or appliances; but, as reasonable care' is a relative term, the jury might properly consider what could be done to secure safety, and the evidence was competent.'

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As regards the instruction given by the court on its own motion, above quoted, we think nothing contained therein is prejudicial to the defendant. Indeed, it may be doubted if it did not favor the defendant more than the evidence in the case. and the law applicable thereto, would warrant. The same remark is true of the instruction given by the court in lieu of the sixteenth one asked by the defendant. That instruction, as requested, was as follows: "The employer is bound to use ordinary care and prudence in providing proper machinery, but he is not a guarantor of its safety. If he uses ordinary care and prudence he is absolved from responsibility. The machinery need not be the safest of the kind, provided it is such as a person of reasonable care and prudence would provide." The one given by the court in lieu thereof was as follows: "But the jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was only bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe." The instruction here given is in a large part identical

with the language used by this court in Hough v. Railway Co., supra. The assignment of error is inexact in its statement that the court said, in effect, "that the defendant was bound to use and employ such machinery only 'as the experience of trade and manufacture sanctioned as reasonable and safe.'" What the court said was that the defendant "was only bound to use ordinary care and prudence in the selection and arrangement and care" of its machinery. In adding that the defendant had the right to use such machinery "as the experience of trade and manufacture sanctioned," the court imposed no additional obligation upon it, but relaxed the rigor of the rule in its favor. If there was any error in such relaxation, the defendant could not complain of it. But, taken in connection with the other instructions given by the court on that question, we think the instruction as it stands was just and reasonable; at least, not prejudicial to the defendant. We repeat, we are of the opinion that all of the instructions sufficiently guarded the interests of the defendant, and that, in the language of the court below, "if there was any error, it was in too great an indulgence and relaxation of the law in its favor."

Nor do we see any error in the refusal of the court to grant all the instructions prayed for by the defendant. Such of them as were correct, as mere abstract propositions, had already been covered by the instructions which the court had given. The others, had they been granted, would, as conclusions of law, have bound the jury to render a verdict for defendant. For the foregoing reasons the judgment of the court below is affirmed.

BREWER, J., not having been a member of the court at the time this case was considered, took no part in its decision.

(136 U. S. 479)

STATE OF INDIANA V. STATE OF KENTUCKY.

(May 19, 1890.)

BOUNDARIES OF STATES-CESSION OF NORTH-WEST TERRITORY-WEIGHT OF EVIDENCE.

1. Under Act Va. Dec. 20, 1783, authorizing her delegates in congress to convey to the United States all her right, title, and claim, as well of soil as of jurisdiction, "to the territory or tract of country within the limits of the Virginia charter, situate, lying, and being to the north-west of the River Ohio, " and under the deed made in pursuance thereof, the boundary of the ceded tract was fixed at low-water mark, as it then existed, on the north side of the Ohio, and that line now remains the boundary between Indiana and Kentucky. Following Handly's Lessee v. Anthony, 5 Wheat. 374.

and issued process thereto; that under 2 St. at Large, c. 35, p. 277, authorizing a survey of the public lands north of the Ohio river, the United States surveyors, in December, 1805, treated the stream north of the island as the true boundary; and that Indiana, by act of February 27, 1875, authorizing the appointment of a commissioner to act with one from Kentucky in running a line to set. tle the disputes as to the land in question, directed that the line of the government survey should be followed.

Bill in equity.

J. E. McDonald, M. M. Butler, and A. H. Snow, for complainant. Proctor Knott and P. W. Hardin, for defendant.

FIELD, J.* This is a controversy between the state of Indiana and the state of Kentucky, growing out of their respective claims to the possession of, and jurisdiction over, a tract of land nearly five miles in length and over half a mile in width, embracing about 2,000 acres, lying on what is now the north side of the Ohio river. Kentucky alleges that when she became a state, on the 1st of June, 1792, this tract was an island in the Ohio river, and was thus within her boundaries, which had been prescribed by the act of Virginia creating the district of Kentucky. The territory assigned to her was bounded on the north by the territory ceded by Virginia to the United States. The tract in controversy was then, and has ever since been, called "Green River Island. Kentucky founds her claim to its possession, and to jurisdiction over it, upon the alleged ground that at that time the River Ohio ran north of it, and her boundaries extended to low-water mark on the north side of the river, also upon her long undisturbed possession of the premises, and the recognition of her rights by the legislation of Indiana. Indiana rests her claim, also, upon the boundaries assigned to her when she was admitted into the Union, on the 11th of December, 1816, of which the southern line was designated "as the River Ohio from the mouth of the Great Miami river to the mouth of the Wabash." This boundary, as she alleges, embraces the isl and in question; she contending that the river then ran south of it, and that a mere bayou separated it from the main-land on the north.

The territory lying north and west of the Ohio, embracing the state of Indiana, as well as the territory lying south of that river, embracing the state of Kentucky, was previous to 1776, and down to the cession of the same to the United States, held by the state of Virginia. Indeed, that commonwealth claimed that all the territory lying north of the Ohio river and west of the Alleghanies, and extending to the Mis. sissippi, was within her chartered limits. As stated by Chief Justice MARSHALL in Handly's Lessee v. Anthony, 5 Wheat.

2. In a suit by Indiana against Kentucky to determine the right of jurisdiction over a tract of land known as "Green River Island, " now, by the gradual filling of an old channel, connected with the Indiana shore, the evidence of witnesses and of ancient maps being indefinite and conflict-374, 376, at an early period of the Revolu ing as to the line of low-water mark, at the time of such cession, it is decisive in favor of Kentucky's claim that, from her formation as a state, she continuously claimed and exercised jurisdiction thereof; that Indiana never exercised such jurisdiction, and for 70 years from her formation as a state never, by legal proceedings, questioned Kentucky's right; that in 1834 the United States circuit court for the district of Kentucky, in an action at law, determined the title to lands thereon,

tionary war, "the question whether the immense tracts of unsettled country which lay within the charters of particular states ought to be considered as the property of those states, or as an acquisition made by the arms of all for the benefit of all, convulsed our confederacy, and threatened its existence. To remove this cause of disturbance, congress, in September, 1780, passed

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a resolution recommending "to the several states having claims to waste and unappropriated lands in the western country a liberal cession to the United States of a portion of their respective claims for the common benefit of the Union." The commonwealth of Virginia yielded to this recommendation; and on the 20th of December, 1783, an act was passed by her legislature authorizing her delegates in congress to convey to the United States all her right, title, and claim, as well of soil as of jurisdiction, "to the territory or tract of country within the limits of the Virginia charter situate, lying, and being to the northwest of the River Ohio," subject to certain conditions, among which was that the territory should be laid out and formed into states containing a suitable extent of territory, not less than 100 nor more than 150 miles square, or as near thereto as the circumstances would admit, and that the states so formed should be distinct, republican states, and admitted members of the federal Union, having the same rights, sovereignty, freedom, and independence as the other states. In pursuance of this act the delegates in congress, on the 1st of March, 1784, executed a formal deed ceding to the United States all the right, title, and claim, as well of soil as of jurisdiction, which the commonwealth had to the territory or tract of country within the limits of the Virginia charter, "situate, lying, and being to the north-west of the River Ohio," for the uses and purposes, and subject to the conditions, mentioned in the act of the com. monwealth. By the act of congress of July 13, 1787, entitled, "An ordinance for the government of the territory of the United States north-west of the River Ohio," a modification was made of the terms of the cession of Virginia, to the effect that there should be formed in the ceded territory not less than three nor more than five states. the fixed and established boundaries of which were designated, and of which the Ohio river was declared to be one.

As thus seen, the territory ceded by the state of Virginia to the United States, out of which the state of Indiana was formed, lay north-west of the Ohio river. The first inquiry, therefore, is as to what line on the river must be deemed the southern boundary of the territory ceded, or, in other words, how far did the jurisdiction of Kentucky extend on the other side of the river? Early in the history of the state, doubts were raised on this point; and, to quiet them, its legislature, on the 27th of January, 1810, passed the following act declaring the boundaries of certain counties in the commonwealth: "Whereas, doubts are suggested whether the counties calling for the River Ohio as the boundary line extend to the state line on the north-west side of said river, or whether the margin of the south-east side is the limit of the counties; to explain which, be it enacted by the general assembly, that each county of this commonwealth calling for the River Ohio as the boundary line shall be considered as bounded in that particular by the state line on the north-west side of said river; and the bed of the river and the islands, therefore, shall be within the respective counties holding the main-land opposite thereto,

within this state, and the several county tribunals shall hold jurisdiction accordingly." Statute Law of Kentucky, vol. 1, p. 268.

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Upon this question of boundary, we also have, happily, a decision of this court rendered so early as 1820. In Handly's Lessee v. Anthony, 5 Wheat. 374, ejectment was brought to recover land which the plaintiff claimed under a grant from the state of Kentucky, while the defendants held under a grant from the United States; and the title depended upon the question whether the land lay in the state of Kentucky, or in the state of Indiana. It was separated from the main-land of Indiana by a bayou, a small channel, which made out of the Ohio, and entered that river again a few miles below. This bayou was from four to five poles wide, and its bed was dry during a portion of* the year. The court said that the question whether the land lay within the state of Kentucky or of Indiana depended chiefly upon the land law of Virginia, and on the cession of that state to the United States; and, in determining this question, it went into the consideration of the proper construction to be given to the deed of cession, and reached the conclusion that the boundary between the states was at low-water mark on the north-west side of the river. "In pursuing this inquiry," said the court, we must recollect that it is not the bank of the river, but the river itself, at which the cession of Virginia commences. She conveys to congress all her right to the territory situate, lying, and being to the north-west of the River Ohio;' and this territory, according to express stipulation, is to be laid off into independent states. These states, then, are to have the river itself, wherever that may be, for their boundary. This is a natural boundary; and, in establishing it, Virginia must have had in view the convenience of the future population of the country. When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newlycreated state extends to the river only. The river, however, is its boundary. If, instead of an annual and somewhat irregular rising and falling of the river, it was a daily and almost regular ebbing and flowing of the tide, it would not be doubted that a country bounded by the river would extend to low-water mark. This rule has been established by the common consent of mankind. It is founded on common convenience. Even when a state retains its dominion over a river which constitutes the boundary between itself and another state, it would be extremely inconvenient to extend its dominion over the land on the other side which was left bare by the receding of the water; and this inconvenience is not less where the rising and falling is annual than where it is diurnal. Wherever the river is a boundary between states, it is the main, the permanent river, which constitutes that bound

ary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark. When the state of Virginia made the Ohio the boundary of states, she must have intended the great River Ohio, and not a narrow bayou into which its waters occasionally run. All the inconvenience which would result from attaching a narrow strip of country lying on the north-west side of that noble river to the states on its south-eastern side would result from attaching to Kentucky, the state on its south-eastern border, a body of land lying north-west of the real river, and divided from the main-land only by a narrow channel, through the whole of which the waters of the river do not pass until they rise ten feet above the lowwater mark."

This decision has been followed by the courts of Kentucky. See Church v. Chambers, 3 Dana, 279; McFarland v. McKnight, 6 B. Mon. 510; Fleming v. Kenny, 4 J. J. Marsh. 158; McFall v. Com., 2 Metc. (Ky.) 394. In this last case, the defendant, a justice of the peace for a Cincinnati township, in the state of hio, solemnized a marriage on a ferry boat upon the Ohio river, midway between Newport, in Kentucky, and Cincinnati, in Ohio, and was indicted in the courts of Kentucky for unlawfully solemnizing a marriage, and was convicted of the offense; he not having been authorized to perform that ceremony by the county court of that state. The court of appeals of Kentucky, in affirming the conviction, referred to the authority of Handly's Les

see

v. Anthony, and said: "That the boundary and jurisdiction of the state of Kentucky rightfully extend to low-water mark on the western or north-western side of the River Ohio must now be considered as settled." The same doctrine was maintained in Com. v. Garner, 3 Grat. 655, by the general court of Virginia, at its June term, 1846, after elaborate consideration, against the earnest contention of some of its judges that the jurisdiction of the state after the cession extended to the line of high-water mark on the north-west side of the river.

We agree with the observations of the court in Handly's Lessee v. Anthony, that great inconvenience would have followed if land on either side of the river, that was separated from the main-land only by a mere bayou, which did not appear to have ever been navigable, and was dry a portion of the year, had been attached to the jurisdiction of the state on the opposite side of the river; and, in the absence of proof that the waters of the river once flowed between the tract in controversy in this case, and the main-land of Indiana, we should feel compelled to hold that it was properly within the jurisdiction of the latter state. But the question here is not, as if the point were raised to-day for the first time, to what state the tract, from its situation, would now be assigned, but whether it was at the time of the cession of the territory to the United States, or more properly when Kentucky became a state, separated from the main-land of Indiana by the waters of the Ohio river. Undoubtedly, in the present condition of

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the tract, it would be more convenient for the state of Indiana if the main river were held to be the proper boundary between the two states. That, however, is a matter for arrangement and settlement between the states themselves, with the consent of congress. If, when Kentucky became a state, on the 1st of June, 1792, the waters of the Ohio river ran between that tract known as "Green River Island" and the main body of the state of Indiana, her right to it follows from the fact that her jurisdiction extended at that time to lowwater mark on the north-west side of the river. She succeeded to the ancient right and possession of Virginia; and they could not be affected by any subsequent change of the Ohio river, or by the fact that the channel in which that river once ran is now filled up, from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the state of Indiana. Its waters might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Missouri v. Kentucky, 11 Wall. 395, 401. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river.

*The question, then, becomes one of fact.* Did the waters of the Ohio pass between Green River island and the main-land of Indiana when Kentucky became a state, and her boundaries were established? There is much evidence introduced on the part of Indiana to show that since her admission into the Union the Ohio river has not passed between the island and the main-land except at intervals of high water, and that at low water the main-land has been accessible for portions, at least, of the year, from the island, free from any water obstructions. Aside from the speculations of geologists, which are not of a very convincing character, the evidence consisted principally of the recollections of witnesses, which were more or less vague and imperfect. Apart from those speculative theories, she produced no evidence that at the time the cession was made by Virginia to the United States, in 1784, or when Kentucky became a state, the tract was attached to, and formed a part of, the territory then ceded, out of which the state of Indiana was created, or that the waters of the Ohio did not run between it and the main-land of Indiana, so as to justify its designation as an island in the river. Much evidence has also been given on that subject by Kentucky, and a great number of transactions shown which proceeded upon the assumption that the tract was within the jurisdiction of that State. It is clear, we think, from the whole testimony, that, at an early day after Kentucky became a state, the channel between the island and the main-land of Indiana was often filled with water the whole year, and sometimes to the width of 200 yards, and that water passed through it, of more or less depth.

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