TOWltiSJi}ND V.
'919
-:feek; n, I saw an engine was bIowing'Ollt numbers of I would not know Whether. it had It poor spark.. 0): a good one, in pretty fair,sJlap.e; it would not bea firl!F-class spark.arrester to permltth<lot sort of thing. but it might bea mediull/o,qne. I do, not personally go arotihdevery dlloY to inspect every spark-arrester that comes in that a man that goes around to inspect them, and when I have any ideii;tllitt:they have got in 1m,: bad conditioll,I inspect them myself,. 'It is too' long ago for rne ,bosay 1f inspected 55. Don't know who ,inventerltlle diamond stack llpark.arrester. It ;is considered that the exten,lli()n is a saVing of f\lel. are used on tris road, to tl1ebel,'lt of' my they are aboll t eq ually di vided Baird and considered equaUygood spal'k.arrestets, but the extension front " , as to engine was ,time ,In questl.on. .!f, the is estapenglll,e No. 55 was eqlllJ>ped the most appro,:ed 'In ;tbe way of. and, that same was ragaeyery left it to.reunder ;above not shovrn , tbat ,tp,6, operated by a and .in ,a ,m,anQer.,; , .''.' , :" r , ' ev.idenoo is u.D,con.tradieted. that th'e engine , helgb.t,_,H9,t, ,50,",', ",fee,t,',' h1C,h,," w" ;ca. n,ed, a di,sta,. r ,o"r. 1.00 ,teet from "th.,.,e rO.ad,.ltlsfll.lr to. presume" the testimony, pf X{eefe above quoted, that. tPJ, .sp,ark-arrest.ef. order,. and: engine was erated lD a careful .. None of the emplqyes on, the train 1n the Clise., " :"""" ,. 'On tlJe case, I agree withtbe repQrUlwllJ ,be,confirmed·
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'TOWNSEND 'tl. LANGLl!:S.
(Oircuit Cowrt, E. D.
Louiriana.
April 11,18llO.)
L MAsTJm
''lnan ootion by an employe for inju,ries rllC(livec1 from maohinery, the peotItton al· legell that his hand WBS, by oogo·wheels while,he was ,brushing them off, and that he .\Vas iiiexperienced'in hlLndling machinery, add (Uti not know and had IJ,ot been llold of the danger·· Held, that heoould notrecover·..as the danger was apto the employment. parept, and In such an' action, the failure of the employer to 'provide coverings for the CoBwheels is notnegligenoe per Be. ' , ,j
AND SERVANT-NEGLIGENCE-DANGEROUS ElIIPLOnfENT.
S.
SAME-ExPOSED MACHINERY·.
At Law. 0n exception to the petition·. ' '" Aotion by Jobn Townsend against Justin J. Lll.ng1es. ,B. F. l'brman and L. plaintiff.,::
J.
!I
920
FEDERAL REPORTER,
.vol. 41.
BILLINGS', J.This cause is submitted upon the petition and an exceptionth&reto' in' the nature of a general demurrer, and presents the any cause of action is set forth therein. The petition states' lpt\.t:.the :plaintiff was a workman employed by the defendant in the factory; that while to and operating a machine know,nas a "dough-mixer," where he had been directed to work by the defendant OT his foreman in said factory, his hand was violently, suddenly, a.hd:,without his fault, and without any means or power on his part it, or any-knowledge ofthe danger that threatened him of the machinery of said mixer, viz.,jhe so crushed' and mutilated that, notwithstanding all effort on his part, his (plaintiff's) hand,in consequence of the injury so received, had to aowas lost to him; that theplaintiff had worked but be doul?;h-mixer, although for a longer a few period ,employed ", indEifendanttjrfactory; that he was ',i,#experienced in that, the'adcidenthappene'd through no fault of his; 'that Mm,'nor did he know of'the danger; that the high rate' a/speed; that plam:tlft ll.t: the tune of hIS aCOldent was engaged in off, with a hair, brush, the machinery and cog-wheels; and due to the:w.i1lful illega!n.eg1ect on the part of thedefenda;nt to warn the ,plaIntIff 'ofhIS danger, 'and of the dangerous character'ofthe machinety, and to provide covetiUKrl, around the cogwheels.:: mValao avers tl1/it' sjioh coverings wp.repJ'ov'ided and placed around 'lifiDUat' rtiachinery in other parts of the' factorY. , . The question presented ,by the demurrer; and' Ilt1he argument upon it, is the ,plairitffl','when he agreed to work ,at the doughmixer, asstiOie'a 'risk;'t6 be bomeby himself; of 'all the circumstances out of which he says his injury arose? So fltr as relates to the absence of the upon and around the cog-wheels, this fact has been held by very highly esteemed autlionties' not to be per se negligence on the part of the employer. Schroeder v. Car Co., 56 Mich. 132, 22 N. W. Rep. 220; Sanborn .v. RaiJ,roq,d :Oqn 35 Kan. 292, 10 Pac. Rep. 860. It is settled law that, so far as open and visible causes of injury incidental e!Dployed, as himself and to the the employer, taCItly agrees to run the l'lsk. In Tutae v. Rmlway C-o., 122 U. S:, at page 19p, 7 Sup. Ct.ltep.,ll.tpage 1168, the supreme court United'Stateslay down the principle of law as follows: "The rule is now well tllllt, when aserv'ant, in the execution of :business, receives an injury which befans him from one of the risks incident to the business; he cantiot hold the master responsipear the himself;" and that court in that ca.se 'lield that a. brakeman was bound to exercise the care and caution which the perils of the business demanded. In a late case, Oare:y v. SeYers, 41 La. Ann. 500, 502, 6 South. 813, the supreme court of this state have, with great precision, laid ,down the same rule. 1 think the textwriters, and all the well-cousider¢ cases, establish the same doctrine. Attention was called by the counsel for plaintiff to Myhan v. Powe
BALLIN 'V. MAGONE.
921
00., 6 South. Rep. 799. The occult nature of the business in which the employe was employed, viz., that of generating and distributing electricity, may have been the ground of the ruling there made. Here the whole source of danger was most palpable. I think the exception is well founded,· and should be maintained.
BALLIN
et 01.
tl. MAGONE.
(Circuit Court, S. D. New York. April,l800.)
L
CUSTOMS DPTIES-CLASSIFIOATION-MANUFACTURES OF WORSTED.
Worsted cloths or coatings. known in the trade as "diagonals," "corkscrews," "fancy weaves," etc., manufactured entirely of yarn produced from wool of the sheep by combing, and spinning, a process resulting in a product known in 1883 and prior thereto as "worsted yarns," are "manufactnres of worsted," under Schedule K, (paragraph 363, Tariff Index, New,) of the tariff act of March 8, 1888.
.. SAME-WOOLEN CLOTHS.
The statute itself recognizes a difference between woolen and worsted articles; and the words "woolen cloths," used in paragraph 862 of the same schedUle; are to be taken as including only those woolen cloths which are not worsted, or composed of worsted, within the meaning of those terms as used in the tariff act. (Syllabus b1I the Court.)
At Law. Action to recover back duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The goods involved in the present suit were imported by the plaintiffs from" England in April, 1889, and were entered as Uworsteds," under Schedule Kofthe act of March 3, 1883, (paragraph 363, Tariff Index, New,) a part thereof being valued at not exceeding 80 cents per pound, and claimed to be dutiable at 24 cents per pound and 35 per cent. ad valorem, and a part at not exceeding 60 cents per pound, and dutiable at 18 cents per pound and 35 per cent. ad valorem. The collector classified the merchandise as "manufactures of· wool," and as "woolen cloth," valued at less than 80 cents per pound, and dutiable at 35 cents per pound, and 35 per cent. a,d valorem, under parap;raph 362 of the same schedule. The plaintiffs duly protested, and appealed from the decision of the collector to the secretary of the treasury, who affirmed the classification of the collector. The plaintiffs' witnesses proved on the trial that the goods in suit were manufactured, as to part oftbem, from fine, cross-bred Australian wool, of a fibre of from 2! to 5 inches in length, and, as to the rest, from low grade Australian cross-bred wool, of a fibre varying from 5 to 9 or"10 inches in lellgth; that the wool was scoured and otherwise prepared; then carded,and afterwards combed by a machine known as the "Noble Comb,'! by which latter process the "noils" or short and broken fibres were removed, and the remaining fibres laid straight and parallel, resulting in a product known as "top," which was further drawn out by a process of "gilling" and drawing, and finally spun into worsted yarn,. Bnd that the goods in suit contained nothing but such yarn; that so-