1,10 ,statement of th.e no referenceto :eyidence. FurthermOJ;e,Jtwas me as a bill ofexcep#Qnll, and I 'lYasl1otaske<l t;o.sign it. ,evidently,as it was doubtleas. intepded to be, only, J' from which I might afterwards;vetifya bill of exceptions,as I should from my 9wn I therefore decline to sign th.e bill.. ..
LUCAS tl. RWHY()Nl)&
Oourt, D. Sooth OaroUna. December 9, 1889.)
RAIutOADOoHPANIBI-WALKING ON TlWlx-NBGLIGENOB.
In anlWtloJ;1 for personal injury, ltappea,red that pla1ntt1fwB$.walking on de. fendant'srailroad track, and B.'tepped off a few feet, whefi a·train passed, and he saw the ahadow of something,ll.ndwaa:felled. to the 'gronnd;: that;a severe wound was found on .his head, and a stick of,Wood, similar to the llticks used on the locomotive, was· found imbedded in the 'e"hhnear where he fell. .There was no other evidence that the wood was thrown JrOm the locomotive, or how it was thrown, or that it IItruck plaintiff. The speed oUhe train was about 60 an hour·. Held that, utllerewll.s nocontractl1ll.l relation between plaintifl a'l1d defendant, there was no presumption. of negligence against the latter, and'a Verdict Ilhould be di· recteHor the defendal/o'" ·. . . ..
orr and J. a.
Cra,tlJjord and G.
to Instruct the Juty .tq
for Defendant. plaintiff'. " .
The plaintiff brings nction the defendant for negligenge. He waswalking.@ thernilroad trackfrom: Batesburg to Leesville,. in th;is state.. The tra:ck had been used for over 20 years asa pathway. by the inhabitants of thel,le two about two miles apart. While so walking he heard a coming train, and stepped about breast off the track,placing himself eight or nine Uletfroql .the track.:. ·Just as the engine high, and; tbetrain passed him, he saw the shadow and of so.mfthiIlg il),; the air, and. waS :felled to .the grO\1nd.,. lie lost consciousness forll-. tim,e. Recovering:, he pursued his. way, to Leesville, and was .by, a physician. wound was on the side of his head,. mada ,by some The· acQident was about to the of the accideut, noon-day. .In :the afternoon he.. some 600 yare's frqm Leesville..There he found a piece of wood, simi.. . lar to that fQr,firing up loconlQtiyes on, this and supposed that it was the piece which struck him.. , It was imbedded. in the bank where he was standing. . l'hewitnesses for plllintiff say that the train was rUnning somessy60 miles an The track at this pIneais sm,ooth .and. !ltrai,ght, within the corporate limits of Lees-vill(l, ill the ol,ltskirts, of the toW,D. ,The,gist of this action is negligence. It proved. There being no contJ:actualrelation be-
tween these parties, there is no presumption of negligence against the defendant. ,There is no proof that the stick of wood found by plaintiff, and supposed to be the cause of the injury, Was not lying in the place it was found anterior to the accident. There is no proof that it ever was on the engine or tender. None that it came .from either, or, if it did come from either, whether it came from under the engine, from in front of it, or from the top or the back of the tender. It may have been on thetrack, thrown off by the cow-catcher. It may have been on the rail, and have been thrown off by the wheel. It may have come from the tender, although there is no proof that the tender was full of wood, or, indeed, had any· wood at all in it. This constitutes the distinotion between this case and the class of cases quoted by Mr. Thompson in his work on Negligence. Kel.L1'rIRIJJ v. Railway Co., and notes, 2 Thomp. Neg. 1220. The maxim, Tesipsaloqwitu'r', does not apply. A case must be made out by 'facts, not conjecture. Proof muet be furnished the jury, notgTE>t1ndsf()r guess-work; and these facts and proofs the plairitiff must establish before he C/l.n retain his standing in court. The jury are instructed tb find a verdict for defendant. The circuit judgeh'asbeen detained in Baltimore by triaVof a capital case. 'Fhiscase is important to plaintiff. He should have the benefit of a full court. Leave is given him to :for anewtriaJ before the court as' soon as the eir-cult judge shall arrive.' , . ON MOTION FOR NEW TRIAL.
BOND, J. It appears fromthestatementoffacts in this case that the plaintiff, Lucas, was walking along the track of the defendant company, where the people of the neighborhood were accUfltomed to,walk. wllen visiting from one village to another. He saw the train 'of the defendant company approaching, and stepped off the track, and placed himself in an upright position, nine feet from the track, with his back against the bank of earth left there when the cut was made through which the track was laid. The engine and tender were propelled at the rate of 60 miles an hour. A1ierit had' passed about i'ninutes, the' plaintiff was discovered seriQu,sly wounded in the roaq. .' There was, Ilear where the plaintiff found imbedded in the b'atlk a piece of wood like that found at a neighboring wood-pile where the tender had been supIt appears the embankment against which plaintiff bieast high, as some say, others makin.g it as high as his., head. " The pieoeofwood was not f,ound on this elevation. Upon ,this sitting in the circuitcourt,directed the ;juryto.,mrid a verdict fOIthe defendant. A motion for a new trial was have hear4 argued. I do not see upon what ground tlie plll.lnhff can recover. He:wiul ,walkiug upon the railroad track, a common place to walk, perhaps, but still the railroad companywaS 'bound to e<keIY.Iiseno extmordinary care.beeause
of any permission or license he may have acquired by custom to walk there, and there is no proof that they were not as careful on this occasion in the management of their locomotive and tender. as on any other part of their road. To run a train at 60 miles an hour is not negligence, nor in itself to be reprimanded. The plaintiff, when he undertook to walk the defendant's track, took all the risks of such a promenade incident to the railroad's proper conduct of its business. While standing there the plaintiff says he saw the shadow of something in the air, which struck him, and then he lost consciousness. This is all the t>roof there is that the thing that wounded him came from the engine or tender of the defendant, except tbat a stick was,found imbedded in the bank, behind his back, not head, after he was picked up. It would be mere guesswork for thejnry to find that the wound was produced by this stick of wood. It might have been there for weeks. There was no blood on it; nothing but the shadow of something in .the air to indicate the cause of , plaintiff's unfortunate wound.. But suppose, for the sake of thecase, the stick of wood fell from the tender,or, already upon the track, was 'struck by the cow-catcher, and sent fiying through the air. What help .would that he to plaintiff.'s case? Would any amount of care prevent !this? Is not a cow-catcher t>uton the engine to knock things off the track? The plaintiff in this case,. it seems to me, took all the risks of danger and accident incident to running carson the track where he was. If it were proved, which it is not, that the aC,cident was caused by defendant's engine or tender, andit appeared, as it does, that the machinery was run in the ordinary way, he would not be entitled in law to recover. Sixty miles an hour for short distances 'is: not unusual.. I think the district judge was right in instructing the jury that plaintiff had nG "case, and directing a verdict for defElDdant.
(Oircuit Oourt, So D.New York.
CuSTOMS DUTIBS-CLASSIFICATION-LINEN TAPBS.
As linen tapes, composed wholly of flax, or of which· flax is the. component mate-. rial of chief value, woven in a IOOID. and having a warp linen corset laces. a braided fabrlctand linen "braids" or "bobbins, "-Come within the desorlption In both paragrapns 884 and 886, (Tariff Index, new,lof Schedule J of the tarlfl act. of March 3,1888, viz., "manufactures.of.flax, or of which flax shall be the component material of chief value," thel' are dutiable under the highest rate provided in the two paragraphs mentioned, per cent. ad vawrem under 836', accordingto Rev. St. U.S.§ 2499, as amendec'l.. bytheact of March.8,l888, which provides that, when two or more rates are applicable. the article ilhall be classified 'nndel' the highest. .
Action to recover back customs duties.