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.
DIECKERHOFF fl. ROBERTSON.
The plaintiffs, in 1885, imported certain goods consisting of linen tapes, corset laces, and braids, the latter being commercially known as "bobbins." These articles were classified by the defendant, the collector at the port of New York, under Schedule J of the tariff act of 1883, (Tariff Index, new, 336,) providing for "flax or linen thread, twine and pack thread, and all manufactures'of flax, or of which flax shall be the component material of chief value, not specially enumerated or provided for in this act, forty per centum ad valorem." The plaintiffs paid the duty under protest, claiming that the goods were dutiable under a preparagraph (Tariff Index. new, 334) of the same schedule as and bleached linerts, ducks, canvas, paddings, cot bottoms, diapers, crash, huckabacks, handkerchiefs, lawns, or other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, not specially enumerated or provided for in this act, thirty-five per centum ad valorem." It was shown on the trial that the tapes were linen, or composed chiefly of flax fibres; that they were woven fabrics having a warp and weft; that the corset laces were made of linen threads braided, as were also the other "braids" or "bobbins." When the plaintiffs rested, the defendant's counsel moved the court to direct a verdict for t4e defendant; citing Arthur's &'rs v. Butterfield, 125 U. S. 70,8 Sup. Ct. Rep. 714; Powers v. Barney,.5 Blatchf. 202; Liebenrothv. Robertson, 33 Fed. Rep. 457; Rev. St. U. S. § 2499, as amended by act of March 3, 1883. Alexander P. Ketchum, for plaintiffs. Edward Mitchell. U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for defendant;
LACOMBE, J., (orally.) It is a pretty hopeless task, in many of these cases. to undertake to determine exactly what congress meant to provide. These tariff acts have grown in such a way, by the cutting up of old acts, by transposing sections, by additions and alterations, that there are necessal'ily many cases which might, under the application of the rules of interpretation as settled by the courts, be decided either way with eqllalpropriety. In the' case before us the controlling point seems to be that, if either of these'paragraphs (334 or 336) were stricken out, the article would be found plainly and distinctly covered by the other. I do not appreciate the weight which is sought to be given to the use of the two words" or other" in 011e of the paragraphs, when the words used in the other paragraph' are "and all." When read with their respective contexts, I cannot see that they grammatically import different meanings. That being so, if the law remained as it was before the passage of the act of 1883, this case would be disposed of according to the order in which the p",ragraphs are printed in the act,.or, in other words, according to the assumed chronological order in which congress passed them ,-a mere assumption, because, for all that we know, canmar have constructed paragraph 334 many weeks after it constructed paragraph 336. Powers v. Barney, 5 Blatchf. 202. But any question as to that method of interpretation is laid at rest by the act it-
self,'CI meaidhe act of 1883,) which, in section expressly provided that, "if two or more l!ates oXdutyshoulQ be applicable to any impottedartiple, it shall be classified for duty under the highest of such rates." . In:view of the rule of interpretation imposed u,pon the court, I fool constrained to hold thattbese articles, being covered by the descriptiOn in both paragraphs, (384 and 336,} should pay the higher rateofdpty,viz.,40 per centum. ",verdict directed for defendant.
al.e. ,MAGONE, Collector.
S.,D,}::1ew York.. December·4,1889.)
Rattan, from which' the ouooi' Mtk' or enamel ("chair -Cane") bas been out by II ftrst process t'romithe materllU, ,leaving a prO<'luct know\lin tra<le and commerce in the United Stl,\oosat.the time of the passage of the tarilr act of S, 1888, U "round reeds," are duty free; under that act.' .. Free-List," (Tariff Index, new, 770,) ..Rattans aud reeds, unmQnUfaQtured. " . .. S.UIE. , . "'. ,.'. " . ' .. ,' The artioles bOWD in trade ll-n([ oouiineroe at the samedateaa"square reeds," "oval re¢s, "and l'fiat reeds, obiained by a further process ot ;cutting froJIl, the '"ar" duty under the provision of act, (la. 482,) So edule Nj "Suil riElS, , j .. Rattans and reeds, manufaotured. but not made up into compleooa articles, teil per. centum ad va£orem. " ,;
L CVBTOMB DtlT1lII....CW-IlSIPlc;lATION-R.T'J'AN REEDS. .
At Law. , Action,to 'recover:back customs·duties. The articles involved in the suit were imported by the plaintiffs from Germany into the port of New York in 1887 and 1888, and were as$essed for duty oy.the'collector at ;10 per centum ad valorem, under act of March 3, 1883, Schedule N, "Sundries," (Tariff Index, new, 482,) as Urattans and reeds, manufactpred, .but not made up into com:pleted plaintiffs protested, claiming that the goods were -duty free under the same act, ".Free List," (Id. 770,) and brought this 1!-ction to· recover the amount .Rattan: ')Vl!#' shown to :be the stem of a.plant grown in the East ]:Jldi!;ls,9f solidt.tough, fiber, and of various lengths. It was trialtbat the raw rattan waS submitted toa meoba-nicEU! proqess by \,Vhich the outer bark or enamel was cut off in strips. This, bark orjenamel, thus proeduced, was called in the'trade"chairca.ne." The inner core or pith of the rattan,which remained in ..acylindrical form of cutting, was iJ!!uerally known in the trade, at and for .some time prior to the 'passage of ,the act of 1883, as "round reed," It was the crudest :furmin which such "reeds'? w('re known to the trade.dealingin them. 'Defundant'switneases: proved that the.articla known. as, reed" ·might be 'obtained by a first procesS of from. thera,w rattan, or ,might be made ,by squaring the "rc:mnd reedl by a process of -cutting with knives operated by, macbhlery;,tha,t the"ova1, reed" was .always prodnced '. from a. process of manu· . facture or (luttingl' and that the. "tlat reed" thepr09uct