UNITED STATES V. M'CALLU;\l.
is placed in circumstances which may involve peril, from whatever sources arising. And, on the other hand, it is also settled that, as a general rule, the employe who engages in or continues in a hazardous business assumes the risk of such dangers peculiar to it as are obvious. Hough v. Railway Co., supra; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Ttdtle v. Railway Co., 122 U. S. 189,7 Sup. Ct. Rep. 1166. And when it is said that he assumes the risk of dan'gers which are ous, we have defined the limitation of the rule, and made the suggestion of its counterpart. If the danger be not obvious, the employe does not assume the risk. The duty 'of information is devolved on the master. If it is given, and the servant goes on with the employment, he takes the risk. This would seem to be the logical deduction from the propositions laid down in the cases already cited. The rulings and tions upon the trial were substantially in accord with these propositions, and, upon a review of them, I cannot think there was any errorj at least not any of which the deJimdants can complain upon the trial. It is said that the evidence showed that the plaintiff had been a miner for many years, and must have known the dangerous character of the explosives by which he was injured. It is quite true that the plaintiff had been in such employment for a long time, but there was evidence which, if believed, showed that his experience in mining did not include blasting, and that it did not necessarily bring him to any definite edge of the peculiar properties of such materials as these exploders: My own conclusion upon the testimony as to the facts would have been different from that reached by the jury, but I· think the questions, as presented, were of such a nature that the court was bound to submit them to the jury, and, having done so, under instructions as to matters of law not now complained of, their verdict must be respected. Kane v. Railway Co., 128 U. S. 91,9 Sup. Ct. Rep. 16; Jonea v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. Rep. 118. , The motion for a new trial must be denied.
UNITED STATES V. MCCALLUM
(CirCUit Oourt, D. Massachu8etts.
IMMIGRATION-CONTRACT LABOR-NEW INDUSTRIES.
Defendants contracted with a resident of France to come to this country and work for them in the manufacture of "French silk stockings," which were shown to be articles materially different from ordinary silk stockings. It was shown that there had been manufactured here stockings whereof the feet were the same as those of the" French silk stockings, "but the legs were different. and made by different mao chines. Held, that the manufacture of the complete" French silk stockings" was a new industry, within the exemption of 23 St. U. S, p. 882, 0.164, imposing a penalty on the importation of contract labor. Machines for the manufacture of "French silk stockings" were already in use in this country for knitting the feet, and there was evidence that a skillful workman might learn to run them in a few weeks. It was shown for defendants that their machines stood idle until they imported the Frenchman in question, and they
had adyel,'tised for men to run them, but had to fipd any that were oompetent. Helil, that the evidence did not disclose such efforts on defendants' part as to show a necessity to resort to foreign workmen, and the;yare liable for the penalty.
At Law. F'rank.l).Alkn, Dist. Atty., and Henry A. Wyman, Asst. Dist. Atty., for the United States. George M. Stearrt8 and William H. Brooks, for defendants.
CARPENTER, J. This is an action brought to recover a penalty under chapter 164 of the Acts of the Second Session of the Forty-Eighth Congress, (23 St. 332,) and was heard by the court without a jury. It appeared that the defendants, on the 20th of October, 1885, contracted with Paul Glouton, resident l'It Troyes, in France, to emigrate to this country and work for them, at their factory in Holyoke, in Massachusetts, in the manufacture of silk stockings, and that he accordingly emigrated to this country, and commenced, and for a considerable time continued, to work under the contract. The defendants contend that Glouton's engagement was to work for them in a new industry not established in the United States. The testimony shows that for several years before 1885 silk stockings had been manufactured with considerable success in this country, there having been at different times manufactories :in Laconia, in New Britain, in Northampton, in Waltham, and perhaps in other places. It appears, however, that there is a certain sort of silk stockings known as "French silk stockings," which, before the year 1885, had not been made in this country. 'fhey differ from the other sorts of silk stockings in two particulars: First, in having only a single seam in the footjand, secondly, in a certain firmness and elasticity, and a certain of surface, which are due to the peculiar structure and operation oftheFrench knitting-machines. Before that year these French machines had been imported and successfully used in this country in the manufacture of silk stockings whereof the feet had the characteristics of the genuine French stocking, while the legs were knitted in machines of other constructionj but it appears that the complete product known as a "French silk stocking," having both feet and legs knitted on French machines, had never been produced in this country. Under these circumstances, I conclude that the manufacture of this peculiar sort of goods is to be considered as a new industrv not then established, within the meaning of the statute. I think the intends to except from the penalty therein denounced the manufacture of any distinctly new product, whether it be or be not included within a general class of goods now .produced among ps. The manufacture of stockings was established, and probably it may be said that the manufacture of silk stockings was es.before tbe passage of the statute. But the product here in question differs in appearance, in certain useful qualities, and, to some extent, in the method of manufacture from anything theretofore madej .and I think the. making of it is to be called a new industry. The questiot1..nextto be considered is whether skilled labor for the pwpose.oO,uld have. been obtained otherwise than by the bringing in of
Glouton. French machines were already in use for the knitting of stock-' ing feet, and it does not appear that the operation of these machines is materially different in the manufacture of the feet and the legs of stockings. Glouton gives it as his opinion that a skillJul workman, (meaning doubtless a skillful knitter,) after a few weeks, could learn to run them. The workman Oliver, who was skilled in English machines, learned to run the Fn!11ch machine without instruction at Northampton. The defendant McCallum testifies that the French machines imported by his firm stood idle from March until Glouton came to operate them; that they were broken when they first came, and required to be put in order, and in the mean time the defendants were attempting to get men to run them. It appears that they advertised in newspapers published in those neighborhoods where knitting is done; that one of their workmen wrote to two relatives in Nebraska, who, as he supposed, could run the machines; and that they were not able to find any person competent' to do the work. It also appears that two of their workmen attempted, without success, to run the machines. On consideration of the whole evidence, I come to the conclusion that the detlmdants have not used such reaaonable efforts to run their rua(;hines as would have disclosed the Jiwt they must resort to foreign workmen; and that such reasonable efforts would have enabled them to discover or to train workmen competent to do the desired work. The defendants are therefore liable to the penalty of the statute.
et al. v.
(C'/,rcuU Court. ,S. D. New York. December, 1800.)
CusTOMS DuTIlls-CJ.A.SSIlI'ICATION-JAPAN:s'ED WARE.
Hooks and eyes manufactured of iron, and coated with a hard, brilliant, black varnish, known as "japan," are dutiable as "japanned ware," under Schedule N of the Tariff Act of March 3, 18ll3, and not as "manufactures of iron," under Schedule C of that act.
At TAW. Action to recover back customs duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The merchandise involved in the present suit was imported by the plaintiffs from Europe in April and June, 1889, and was classified for duty by the defendant, collector, as "manufartures of iron," under Schedule C (Heyl, new, paragraph 216) of the Tariff Act of March 3, 1883. as follows: "216. Manutactures, articles, or wares not spepially enumerated or vided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, till, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly ruanulactured, forty-five per centum ad Against this classification the plaintiffs duly protested, claiming that the goods were dutiable under the provision of Schedule N (Heyl,