840
FEDERAL REPORTER.
it conveys, but does not, in .anyof its provisions, affect the conlU1oh-law right of action belonging to any holder of the coupons of the Norfolk Southern Company who has not participated in the action of the majority of the creditors of the company. , Judgment may be taken for the amount claimed, upon the coupons in
suu.
'
NET,SON 11. ALLEN PAPER CAR-WHEEL Co. (Circuit OOU1't, No D. llZzTwia.
December 10,,1886'\
MASTER AND SERVANT-INjuRY TO SERVANT.
Plaintiff was employed in hauliI:lg', heavy paohges of paper from defendant's warehouse to his it, appeared that, at the warehouse door, through which the truck-loads of paper passed, there' was a stone sill about im inch and a half higher than, the' fioor,aiid,in'order to make an easy rise Over the sUI, a plank beveled: o;tf at one end was laid so as to surmountt1le sill;' but the plank had become so worn as to leave a jolt of half inch abrupt rise, overwhlCh the wheels of the truck had tel 'pass. l'laintiff, beingengliged in drawing the truck over it,struck the sill. He fell,and: several bundles of the paper, weighing 50 poundS,ea,ch, fell on and inj1ll'edhi'm. in an action against his eJJ!.ployer, if the crossing from the floo,17 to the sill had been used'in the same condition thant was in at the time plaintlff was hurt, without accident, and nothing had occurred to indicate danger to, men continuing to use it wit.h due care, then the uld say there was.no in leaving such a slight obstruction to. the' truck-wheels unremedied. To charge the defendant, the danger should appear to be such as to suggest itself to a man of ordinary prudence. '
At Law. Dent & Black, for plaintiff. Flower, Remy & Gregory, for defendant. This was an action to recover damages for personal injuries sustained by the plaintiff while in the enlploy of the defendant, by reason of the alleged negligence of the defendant. It appeared from the proof that the defendant was engaged in the manufacture of car-wheels, in which paper was used as one of the materials of such wheels. The paper was stored in a warehouse .about 60 feet fronl the shop where the paper was worked up, and between the warehouse and the shop was a plank platform, across which the paper was carried upon a four-wheel truck, with a frame or a platform about five and a. half feet long and three feet wide, extending over the wheels. This paper came in blocks or bundles, weighing about 50 pounds each, and about 25 bundles of paper were piled upon the trock as a load. At the shop-door, through which these truck-loads of paper passed, there was a stone sill, which was about an inch an a half higher than the plank platform, and, in order to make an easy rise from the. platform over the sill, a beveled plank was laid down, one edge which was chamfered off so as to make an inclined plane to surmount the sill,and this plank had become so worn or abraded where it came against the sill as to leave a jog or jolt of not
of
NELSON V. ALLEN PAPER CAR-WHEEL CO.
841
more thana half inch abrupt rise, over which the wheels had to vass. The pllli'ntiff'had been at work fat: the defendant about a week prior to the accident complained of, and, on the forenoon of the day on which he was injured, he, with two other men, had been engaged in carting paper from the warehouse into the shop. The usual mode of operating the truck was to load it with 25 or 30 bundles of paper, when one of the men took hold of the tongue, and steered the truck and pulled, and the other two pushed, so as to give it the necessary motion to run it into the shop. After dinner, the plaintiff went at some other kind of work, and three other men were setto moving the paper into the shop. For some reason, one of these men was called away from this work, and the plaintiff was directed to: resume his place in operating the truck. At the time he was so called the truck had been run partly across the platform, and, .from· some' canse,part of· the load had fallen off. These bundles the plaintiff took hold of the tongue, apart of the work 'he had nevei' before done, and the other .two men pusbed, . As the truck mounted the beveled plank, it struck against the stone sill where tbe,p1l,l.nkwas partly worn away, and, either because the plaintiff stumbled, or did not strike the aiUsquarely with both wheElIs at ,the same tiJ;Xle1hefelldown; and"the motion of the truck being stopped, some of .the 'p:undles of paper fell oft'. tbe. truck, striking the plaintiff, and producingthe injuries complained of. BLODGETT, J., (charging jv;ry.) An employer is bound to furnish his employe with safe and proper means and appliancesfor doing the work which such employe is E\et about, but he does not become a guarantor of the safety of his men. When he has made reasonable provision for their safety, such as an ordinarily prudent man would make for his own safety if he were doing the work himself, he has, as a rule, performed hisdutjt to his employe or servant. He is not bound to anticipate and provide against accidents to his men which are not apparent, and do not become apparent until after the accident has happened. What I mean is that ,the condition of the implements Or the premises must be such as to suggest to an ordinarily careful man that there is danger before an employer can be charged with negligence in not providing against it. If this crossing from the platform to the sill had been used in substantially condition that it was at the time the plaintiff was hurt without the aceideIit,and nothing had occurred to indicate that there was any peril to'mell in 'continuing, with due care, so to use it, then you canpropedy say that there was no negligence on the part of the defendant in leaving this slight obstruction to the truck-wheels. The danger must be such astbsnggest itself to a man of6rdinary prudence and care for himself and others, so that when the attempt is made to run a truck, loaded as this was" over such a route, such a man would say, "This is dangeroust before,the defendants should be charged with negligence. If yotlfind fx:omthe proof that it unnecessarily endangered the men engaged in motirig these truck-loads of' paper to require or allow thetl'llCk to 'pa'!!s over th18 jolt at the shop and that an ordinarily prudeiltand
842
, rEDERAL REPORTER.
careful man would, have foreseen such danger, then you can properly find the defendant guilty of the negligence charged; ,while, on the contrary, if you find that the accident to the plaintiff was not such a one as a man of ordinary prudence would have foreseen and guarded against, then you can properly say that the defendent is not guilty of the negligence charged.
PERKINS V. ROBERTSON.
(Ol'I'cuit Court, 8. D. New York. CUSTOMS
February 11, 1887.)
DuTiEs-DUTY ON CRop·ENDSOi' STEEL RAILS"':'UNWROUGBT METALS. Thetarlll act of 1883, Schedule C, metals, (22 St. U. S. 497-501,) providing not enumerated or provided for in this act, " on a d!lty on f "mmeral 'substances m the crude state, and metals U'l//I.orought, not speClally enumerated or provided for in this act, " the plaintiff imported the crop-ends of steel being the rough, r/tggeq, IUld imperfect ends ,of the rails when first rpUed, cut off to make perfect ralls, with square and even ends, and defendant, 'as collector, exacted d'uty,on them as manufactures of steel not specially provided for. which wsstll.Clsame steel not specially proyided for. 'I Helft, the rails shouldhave,been classified 1t appearing they were a mere surplus of metal not' made mto anythmg. The classification should be with the class which is more specific, and "unwrought steel" is more specific than" steel. ..
Action to Recover D,uties Paid., · ' Ward, for plajJ;l.ti1f. : " , ,Henry 0. Platt, Asst. U. S. ;Atty., {or defendant.
!. Langdon
WHEELER J. In Schedule C,ple,tals, of the tariff act of 1883, there are many specific provisions for duties on steel in ingots, blooms, bars,and sheets, and many other forms"ready for manufacturE;l, and on many manufactures of steel, and ,paJi;ly of steel i a provision for "steel not specially enumerated ,or provided for in this act i" a provisionfor "manufactures, articles, or wares, not specially enumerated or provided for in this act, composed wholly orin part of iron, steel, copper," etc.; and a provision for" mineral substances in a crude state, and metals unwrought, not specially enumerated or providedfor in this act." , ,22 St. 497-501. Th,e plaintiffimp0l'ted the crop-ends of steel rails,whichare the rough, ragged, and imperfect ends of the rails when first rolled, cut off to make perfect rails, with square and even ends. The defendant, as collector, exacted duty on them as ma,nufactures of steel not spepia.uy enumerated or provided for, which was the sawe as that on steel not specially enumerated or provided for. The plaintiff protested that they should be classified as metals unwrought. ,On the trial by jury, the plaintiff's evidence tended to show that such crop-ends are principally used for remelting; tpe defendant's, that SOnIe ofthem are cutlengthwise bars for use in making various, articles. On instructiop.s from the court, in subsbtnQe, to return a verdict for ,the plaintiff if these crop-ends were a
·
RE AVA.:M8.
843
mere excess of the material for steel rails left over after their manufacture, not suitable for use withoutbeirig further wrought, and to return a verdict for the defendant if they were otherwise, the jury returned a verdict for the plaintiff, and the defendent moved for a new trial. On this motion the argument for the defendant, in substance, is that the crop-ends were steel, and subject as such to the duty laid upon them, without reference to their being an excess of the crude material, or their suitability for use as they were. They were in fact steel, according to all the evidence, and this argument is well founded, unless they are otherwise specially enumerated and provided for as metals unwrought. They are not, on the finding of the jury, manufactures, articles, or wares composed wholly or in part of steel; for such things would be made of steel, and these crop-ends. are a mere surplus of metal not made into '11he classification falls between steel not otherwise specially enumerated or provided for, and unwrought metals not otherwise specially enumerated or provided for. It belongs to the class which is most specially enumerated or provided for. Steel is a metal, and unwrought steel is more specific than steel; for the latter would include both that which. is wrought and that which is unwrought, while the former would be confined to that which is unwroughtonly. And "wrought," within the meaning of the tariff laws, is understood to be applied to things made suitable for use. Ddwning v.'Robert8on, Sup. Ct. U. S. It may be suggested that unwrought metals is a term which includes the whole range of metals when unwrought, and for that reason is broader than steel; buHhat construction would make statute mean as if it read, "unwrought metals other than steel," and these statutes have to be taken exactly as they are. Motion denied.
In re
ADAMS,
Bankrupt.
(DiBtrict Oourt, D. NfJ/J) Jmey. January 18,1887.)
L BANimUPrcY DICTION.
DISOBARGlIl -
PARTNlIlRSHIP-POOO:m:mDINGB TO ANNUL-JURIS-
Three members of a copartnership, of which A. was the fourth member, were adjudged bankrupts on their own petition, "8 was the firm. A.'s namewas signed to the petition, but without his consent, and. in composit.ion proceed· ings which resulted in a resolution assented to by creditors and approved by the court, and a settlement with creditors on the basis thereof, It was expressly stated that A.'s individual assets and debts were not included in the schedules. Afterward,S, in involuntary proceedings in another district. wherein A. resided, he was adjudged a bankrupt, and waS granted a discharge. In proceedings under Rev. St, U. 5120, to annul the discharge, the jurisdiction ,of the court to entertain themvoluntary bankruptcy and to pant the discharge, was, denied by creditors. Held that, notwithstanding Irregularities in the voluntary proceeding, and in· the composition effected therein, these irregularities could not be availed of at this stage of the present procileging, and affordlld nl) ground for annulling the discharge for want of Jurisdiction to grant it. .