NEW .:nmSEY &: . N. Y. B. CO. fl. Y().UNG.
& N. Y. B.Ca.
(CIrcuit Oourt oj' Appeal:B, Second
January 18, 1899.)
Negligence oannot be imputed to a fireman becau",e he does not endeavor to en· force upon ,the engineer obedience to the regulations of the railroad. For a fireman, knowing of a defect in the air-brake, to remain upon a locomotive is not conclusive of negligence on hill part, and it Is a proper question for the jury whether the defect is such tbat a man of ordinary prudence and intelligence would not have remained, and also whether the acoident would have happened had the brake been in propel' order.
.um BERVANT-PBRSONAL INIURIES-IMPUTBD NBGLIGBNOB.
8AMB-KNOWLEDGE 011' DEII'ECT!l-CONTINUANCB IN SERVICE.
8AME-PROMISE TO RBPAIB.
The negligence of a fellow-servant does not excuse the master from llablllty for an accident which would not have happened had tbe master performed his duty. (6 Fed. Rep. 160, dlrmed. '
On Writ of Error from Circuit Court, Eastern District of New York. Action by William H. Young against the New Jersey & New York Railroad Company, for damages lor personal injuries. The cause was origiOlllly brought in the supreme court of New York, and subsequently removed to the federal court. Verdict and judgment were there rp.ndered for plaintiff, and a new trial was denied. Deiendllnt brings elTor. Affirmed. Robert w: De Forest, for plaintiff in error. Charles C. Suffrffn, (Irving Brown, of' counsel,) for defendant in error. Before WALLACE and LACOMBE, Circuit Judges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the original suit to review a judgment for thtl plaintiff rendered upon a verdict of the jury. The plaintiff, a fireman in the employ of the defendant, while firing the locomotive of an express train on the defendant's railway on a trip from Jersey City to Havl:Jrstraw, was injured by a collision between his train and some cars upon a sidetrack of the railway. The side track was not disconnected from the main track at the time, and ,this fact was indicated by a danger signal of a red light, intlieating that the switch was open. A white light would have indicated that it was closed. The track was straight for a considerable distance ahead of the switch. The side track was at a station where there is a junction between the tracks of the defendant's railway and those of another railway. Among the regulations of the defendant, furnished to its engineers, Wert' the following: , "All trains must approach ... ... ... junctions ... ... ... prepared to stop; and must not proceed until the switch or signals are seen to be right, qrthe trat·k is plainly seen to. be clear. ... ... ... Ht' [the engineer] must always run upon the supposition that at any station he may find a switt'h out of.;place, and he must have his train well in hand. on apl'l'oaching a SWitch or station. H
· nl>EtU.L RBPORTEB, vol.
As train was approaching the switch, at the rate of 25 miles an hour, and when 'several hundred .feet distant, the plaintiff noticed the signal was a red light, and the engineer immediately reversed his engine and applied the air-brake. The testimony upon the trial authorized the jury to find that the air-brake was out of repair; that if it had been in proper order the train could have been stopped between the place where it was applied by the engineer and the switch; that both the plaintiff of order; that within the preand the engineer knew the brake was vious week the engineer, in the presence of the plaintiff, had notified the defendant's superintendent that the brake was out of order; and that the superintendent, through the engineer, had directed the defendant's repairer to put it in order, but the repairer had neglected to do so. The testimony also authorized the jury find that, owing to the fog at the time, the color of the signal was not distinguishable further away than the place at which the brake was applied. At the closeo[the testimony the to render a defendant's counsel req:uested the Judge to instruct the verdict for the defendant on the grounds (1) that no negligence on the part of the defendant shownj (2)that the accident was caused by the negligence either of the plaintiff or of the engin'eer, his fellow-serv- , ant; .and (3) that the proximate cause of the accident was the negligence onhe engineer or fireman with reference to the danger signal, irrespectiveof any defect in the brake. The court refused these instructions, and the defendant took an exception. The defendant assigns error because of the refusal of the trial judge to give these instructions. We think the instructions were properly refused. It is not fairly open to discussion that the facts In evidence would authorize a recovery by the plaintiff if he had not been· aware of the defective condition of the air-bra.ke, or if the engineer had not been guilty of negligence in running his train in of. the regulation; especiallyso when he knew that the brake was out of order. A fireman has no authority to interfere with the engineer jn the management of a train, and therefore negligence cannot be. imputed to the plaintiff because he did not endeavor to enforce obedience to the regulations upon the engineer.. His personal negligence, if there was any, is to be found in his conduct in remaining as a fireman upon ldocomotive which was so de:; fectively equipped that it could not be seasonably stopped. It was clear Mter the accident that the brake was so defective that the train Muld not be stopped within a distance at which, on a foggy night like the one in question, danger signals could b'e discerned. But there is notli. ing in the evidence to indicate that'. this' was manifest to the plaintiff before the accident took place. It Was a questionf6r the jury to de-, 'termine whether the defect was 'such:'tbat a man of ordinary prudence and intelligence would not have .,remained. Upon a locomotive as a fire'man after knowledge of it. That the plaintiff knew of the defect in appliance was not, under the and us a laaUer of law, absolutely conclqsive of negligence on his part"even though there had peen no assurance frqm the tllat it should be . Ford v. Railroad 00., 110 Mass. 240, 261; Laning v. Railroad 00·· ,49
NEW JERSEY & N. Y. R. CO. V.'YOUNG.
521; Daley v. Printing Co., 150 Mass. 77, 22 N. E. Rep. 439; Myers v. Iron Co., 150 Mass. 125, 22.N.E. Rep. 631; Hough v. Railway Co.. 100 U. S. 213; District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. Rep. 884; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044. But.the evidence authorized the jury to find that the plaintiff had been assured that the defendant would repair the air-brake. "If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks." Cooley, Torts, 559. This doctrine is cited with approval in Hough v. Railway Co., BUpra, as is also the following language from Shear. & R. Neg. (3d Ed.) § 96: "There can bE' no doubt that, where a master has expressly promised to repair a defect, the servant can recover for un injury caused thereby within such a period of time after the promise as it would be reasonable to allow fOL its performance, and, as we think, fOf an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept." See, also, Holmes v. Clark, 10 Wkly. Rep. 405; Laning v. Railroad Co., supra; Greenleafv. Railroad Co., 33 Iowa, 52; Railroad Co. v. Platt, 89 Ill. 141. If it should be assumed that the engineer was guilty of negligence, either by his disregard of the regulations or otherwise, which contributed to the accident, such negligence would not necessarily defeat the action, if the negligence of the .ant was also contributory. Railway Co. v. Oummings, 106U. S; 700, 1 Sup. Ct. Rep. 493. The defendant would not be liable if theheg1igence of the engineer was the sole cause of the accident, because, being a fellow-servant with the plaintiff, his negligence was one of the risks for which the defendant, as master, did not assume to be responsible. But negligence of a fellow-servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty. Coppins v. Railroad 00., 122 N. Y. 557, 25 N. E. Rep. 915. It was a fair question of fact in the present case whether the accident would have happened if the air-bra)re had been in proper· order, because, notwithstanding the train was proceeding at an improper rate of speed and in violation of the instructions, there was evidence to indicate that the train could have been stopped hefore reaching the switch after the brake was applied. The judgment is affirmed.
(Circu" Oourt, 8. D. NtIID Yor1c. December"
OvI'1'Omil'Dtl'1'IB8-CLASSII'IOATION,....ELuTio CoRDS AIm BlLUDa-sJU, AND IImIJ. e bB- SILK CllntIl' VALUE.
E1W\io oords and braids, manufa,otured of lilk and India rubber, lilk being the oomr;o>nent material of chief value, are dutiable at roper centum ad 1IaZorem, unde.. Schedule L, tariff act of Marob. 8,1888, (He,}'!, Tariff Ind., New, par. 888,) and Dot at 80 per centum ad 1IaZorem. under the provision for India rubber fabrica, et.o., in Schedule N of aaid tari1r act, (Beylo Tariff Ind., New, par. 453.)
At Law. Application by the collectol' of the port of New York, under the prol'ISions of section 15 of the of congress of June 10, 1890, entitled "An act to simplify the laws in relation to the collection of the revenues," for" review by the United States circuit court of the decision of the boaM of United States general appraisers at the port of New York, rathe decision of the collector of said port rela,ting to the classification for duty of certain ,elastio cords and braids, which were entered at said port by the importers July 28, 1890, and were olassified for duty by the collector as "manufactures of silk and India rubber, silk chief value," and duty accordingly assessed thereon at the rate of 50 per centum ad oolorem under ,Schedule L of the tariff act of March 3, 1883, (HeyJ, Tariff Ind., New, par. 383,) which provision is as follows: .. All p;oods, wares, and merchanrlisE', not specially enumerated or provided for in this act, made of sUk, orot which silk is the component material of chief value, fifty per centum ad 'Oalorem." Against this classification the importers duly protested, claiming that the merchandise. was dutiable at no more than 30 per centum ad valorem under the provisiQD in l$cherlttle N of said tariff act, (Heyl, Tariff Ind., New, par. 453,) which is as follows: "India rubber fabrics, composed Wholly or In part of India rubber. Dot specially enumerated or provided for in tbis act, thirty per centum Q.a valorem." The board of United States genE'!ral appraisers in their decision susthe protest of tile importers, and reversed the decision of the collector, finding as matters. of lact that uthe merchandise consisted of fabrics..inthe pillce, composed of silk and India rubber, of which the MlklVas the component of chief value; that it was invoiced as elastic braida and elastic cords,/lnd belongs toa class of goods commonly and comniercially known as: India rubber fabrics.' n The colIector procured the return of the board Of United States general appraisers to be filed in the circuit court, pursuant to the above-mentioned statute of June 10, 1890, and thereafter further procured an order of the court referring the matter to one of the said board of general appraisers as an officer of the ,ourt to take testimony therein; no testimony having been taken in the proceedings belore the board of general appraisers. Upon the reference it was proved in behalf of the collector and the government by competent trade witnesses that in March, 1883, and immediately prior thereto. the
merchandise in question was known in the trade as "silk elastic strands" or "silk braid," "satin ovltl' Braids 'or elastics," and "silk elastic cord," and that these articles were never known at that time in the trade ilS "India rubber fabrics." It appea.red also by thettade testimony that, so far as the term "India-rubber fabrics" had any specific meaning in trade,it applied to a. class of dry goods which commonly nonelastic. It also appeared that the articles involved in this proceeding cameinthe piece, running about 36 yards .in length, wound on cards, and a quarter gross in a box. On the trial it was contended on behalf of theg'overnment that the testimony of the trade witnesses examined before the officer of the court had disproved the fact found by the board of general appraisers that these articles werekriown in the trade ns " India-rubber fabrics;" that the term "India-rubber fabrics," as used in the statute, not having any distinct or special trade signification, was not as specific e. designation of the merchandise as the description, "all goods, wares, and merchandise not specially enumerated or provided for in this a,et, made of silk, or of which silk is the component material of chief value," as contaiued in paragraph 383 of the Silk Schedule Lj and that under the decision of the United States supreme court in the case of Hartranft v. Meyer, 135 U. S. 237, 10 Sup. Ct. Rep. 751, the enumeration in the silk paragraph was a special enumeration. rather than the term "India-rubber fabrics," as used in paragraph 453; and consequently that the rate of duty provided for in the silk schedule as assessed by the collector was the correct one, and that the decision of the board of general appraisers should therp-fore be reversed. Edward Mitchell, U. S. Atty., and James T. Van Ren88elaer, Asst. U. S. Atty., for collector and the United States. Durie, Smith &: Mackie, for importers.
LACOMBE" Circuit Judge. These articles seem fairly within the dictionary meaning of the word "fabric," and I do not find sufficient in the testimony of the trade witnesses to show a specific trade meaning for the term "India-rubber fabrics," such as would take these out of such ordinary mooning. The word "fabric" is rather a broad one in common speech. It is certainly as broad, if not broader, than the word "cloth.": I feel constrained by the decision in the supreme court in Hartranft v. Meyer, 135 U. S. 237, 10 Sup. Ct. Rep. 751, to reverse the decision of the board of general appraIsers in this case, in view of the fact that the court in that case had before them a cloth which was composed in part of wool, and still found that it was dutiable under the provision of ScheduleL, for the reason that silk was the component material of chief value. It appears that silk is the component of chief value in this case, I understand that I am but following the rule'of the supreme court in holding that the silk clause should control here as against the term "India-rubber fabrics," just as in the other case it controlled the classificationof a "cloth" which was "COmposed in part of wool." The decision of the board of appraisers is reversed, and the articles should be classified under paragraph 383. This decision applies to the articles covered by the collector's appeal.
(OCrcuCt Oourt, 8. D. New York. January 11, 1899.)
OtISTOll8 DUTIEs-CLASSIFIOATION-" BENEDIOTINE CORDIAL. It
The l4.qy.eur cordial known as "Benediotine It prepared in France after a secret formula derived from Benedictine monks of the abbey of Feoamp. in that country, and put up in bottles with labels signed and trade-marked by the proprietors. and acCompanied. in the case of each bOttle. by a circular claiming for. the liquor certain therapeutic and prophylactic qualities; but the· fact appearing in evidence that the" Benedictine." was a pleas,aIlt after-dinner drink, taken. in small liqueur glasses, and that the greater part of it' was sold to grocers, liquot dealers, and private families,and used 88 a that it was dutiable under Schedule R (paragraph 818, Tariff Ind. New) of the .tariff act of March 8, 1888, as a cordial con.tainiog spirits, at two dollars per gallon, and not as a proprietaty preparation under Schedule A (paragraph 1111, Tariff Ind. New) of the same act.
(SflllabuB 1YJJ the Cou1't.)
. AIllllication by the imllorters under. the Ilrovisions of secto simplify the laws in tion 15:of the a,et of congress relation to the collection of the approved June 10,1890, for a review by the United States circuit.court of the decision of the board of United. States general aIlllraisers affirming the decision of the collector at the port of New York in the cla,ssi.fication for'duty of certain Benedictine entered at said Ilort, Selltember, 22, 1890, which was assessed and bottles each, 3 for duty as "cordial (not Ilroof) cases of gallons toJhe case," at the rate oft:wo dollars Iler gallon,.1,lnder the Ilrovisions of Schedule H (HeyI's Tariff' Ind. New, par.B13) of the tariff act 'of March 3, 1883, and at three cepts per bottle on the bottles containIng the same, under the provisions of paragraph 310 of the same schedule and act. Said paragraIlh 313 rea,ds.as follows: "Cordials, liquors. arrack. absinthe. kirschwasser, ratafia. and other similar spirituous beverages or bitters.· containing spirits, and not specially enumerated or provided for 1n this act,' two dollars per proof gallon." The imllorters duly Illotested, claiming that'the merchandise was dutiable at 50 Iler cent. on the valueQf the Benedictine, as a Ilrollrietary prepllration, under Schedule A (Beyl's Tariff Ind., New, Ilar. 99) of said t!\riff act, and at 30 percent. on the value of the filled bottles conta,iQing the same, under Schedule B ,Of sllid act, (Heyl's Tariff Ind., New, . par. 133.) Said Ilaragraph 99 Ili-ovides as follows: , "Proprietary preparations. to-wit, aU cosmetics, pUIs, powders, troches or lozenges. sirups, cordials, bitters, anodynf's, tonics. plasters. liniments, salves, ointments, pastes, drops. waters, essences, spirits. oils,or preparaor tions orcQmpoilitions, recommended tothe public as proprietary prepared accol'ding to some private formula as remedies or specifics for any ,disease all diseases or affections whatever, affecting the human or animal body, includinK .all toilet preparations whatever, used as applications to the ,hair. mouth. teeth,or skin, not specially enumerated or provided for in this act, fifty per centum ad tlalO1·em. , ·. was. before .the board of the United States general allpraisers, all an officer of the in behalf of the imllorters and of the goyernm,ent, by which, and from the sam!)le of ,the liqueur Ilra-