at the time of its entry. Tariff Act July 27, 1897, c 11, § 33, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701]. That any merchandise deposited in any public or private bonded warehouse may be withdrawn for consumption within three years from the date of original importation, on payment of the duties and charges to which it may be subject by law at the time of such withdrawal; Provided, that the same rate of duty shall be collected thereon as may be imposed by law upon like articles of merchandise imported at the time of withdrawal.--Extract from Act Dec. 15, 1902, c. 1, 32 Stat. 753 [U. S. Comp. St. Supp. 1905, p. 419], amending section 20. Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 140 [U. S. Comp. St. 1901, p. 1950]. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares and merchandise previously entered without payment of duty, and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to no other duty upon the entry or withdrawal thereof than if the same were imported respectively after that day; *** Provided, further, that when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse said duties shall be levied and collected upon the weight of such merchandise at the time of its withdrawal. Extract from Tariff Act Oct. 1, 1890, c. 1244, § 50, 26 Stat. 624. Hatch Keener & Clute (J. Stuart Tompkins, of counsel), for the importers. Henry A. Wise, Asst. U. S. Atty. PLATT, District Judge. The merchandise in question consists of certain tobacco entered in bonded warehouse and subsequently withdrawn. At the time of withdrawal the importer claimed that such tobacco had lost in weight and that duties should be assessed thereon according to the weight at the time of withdrawal, the collector having liquidated the duties upon the entered weight of such merchandise. The position taken by the Board of General Appraisers, namely, that section 33 of the act of 1897 is repugnant to section 50 of the act of 1890, is untenable, because neither of said sections is general in its application, but is restricted to merchandise previously imported for which no entry has been made. Upon another ground, however, it would seem that the general position taken by the Board ought to be sustained. The importers contend that section 20 of the act of June 10, 1890, as amended by the act of December 15, 1902, authorizes them to withdraw the merchandise from the warehouse upon payment of duties and charges based upon its weight at the time of withdrawal. To reach this conclusion they are obliged to contend that the section just quoted repeals section 2983 of the Revised Statutes [U. S. Comp. St. 1901, p. 1958], which reads: "In no case shall there be any abatement of the duties or allowance made for any injury, damage, deterioration, loss or leakage sustained by any merchandise while deposited in any public or private bonded warehouse." That is, they are forced to make that contention if the plain reading of section 2983 covers such a loss of weight as occurred in the case of the merchandise in question. It seems too plain for discussion that the word "loss," coupled as it is in the disjunctive with "leakage," applies precisely to such a case as the one before us. I cannot find any sound reason for believing that the Congress did not have section. 2983 in mind when it enacted said section 20, as amended. It is obvious that section 20, especially as amended, refers exclusively to rate rather than weight. For these reasons the decision of the Board of Appraisers ought to be sustained. Decision affirmed. ADAMS TOP-CUTTING MACH. CO. v. WILDMAN MFG. CO. (Circuit Court, E. D. Pennsylvania. June 9, 1906.) NEW TRIAL-GROUNDS-WAIVER. No. 35. Where evidence as to loss of profits was introduced by both parties in an action for breach of contract, and fully argued and submitted to the jury without objection and under instructions to which no exception was taken, the question of the right to recover such profits as an element of damages cannot be raised by defendant on a motion for new trial. [Ed. Note. For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 6266.] On Motions by Defendant for a New Trial, and for Judgment on Reserved Point, Notwithstanding the Verdict. Boyd Lee Spahr and Ellis Ames Ballard, for plaintiff. J. B. McPHERSON, District Judge. The reserved question must certainly be determined, I think, in favor of the plaintiff, for there was a considerable body of evidence, contradicted, no doubt, by evidence on the other side, to the effect that the defendant had broken its contract with the plaintiff, and should therefore be called upon to respond in damages. How much these damages should be was a matter to which both parties directed much attention. A great deal of evidence was taken upon this subject, it was elaborately argued to the jury as a question of fact, and no objection was made concerning their competency to decide it. This being so, I see no reason for interfering with their settlement of the controversy. The loss of profits was the principal item of damage claimed by the plaintiff, and, as the defendant interposed no objection at the trial to the instructions given by the court nor to the submission of the question to the jury, it is too late, in my opinion, to raise the question now whether it was proper either to hear evidence upon this subject or to permit the jury to pass upon it. The motion for a new trial is overruled. The defendant's motion for judgment notwithstanding the verdict is also refused, and to the refusal of the latter motion an exception is sealed. WOODWARD et al. v. CHICAGO, M. & ST. P. RY. CO. No. 2,307. 1. TRIAL-VERDICT SHOULD BE DIRECTED WHEN ONLY ONE SUSTAINABLE. It is the duty of the trial court to direct a verdict at the close of a trial before a jury in two classes of cases: (1) That class in which there is no conflict in the evidence; and (2) that class in which the evidence is conflicting, but is of so conclusive a character that the court in the exercise of a sound judicial discretion would set aside a verdict in opposition to it. [Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 376-395.] 2. RAILROADS-FIRES-STATUTORY PRESUMPTION FROM SETTING BY RAILROADS IN MINNESOTA REBUTTABLE. The presumption of negligence or of defects in machinery from scattering fire, raised by section 2700, Gen. St. Minn. 1894, was created to change the burden of proof. When this has been done, and the evidence has been adduced, it is functus officio, and it cannot be used to raise an issue which the evidence does not present. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1710-1712. Presumption of negligence from railroad fires, see note to McCullen v. Chicago & N. W. Ry. Co., 41 C. C. A. 370.] 3. SAME COURT SHOULD DIRECT VERDICT AS IN OTHER CASES. If the proper employés of the railway company have testified to the effect that there were no defects in the locomotive, or that reasonable care had been used to avoid them, and that the locomotive was operated with ordinary care and skill, and the evidence at the close of the trial is so conclusive that an opposite finding is not sustainable, the statutory presumption of negligence is overcome as a matter of law, and it is the duty of the trial court to instruct the jury in a fire case from Minnesota, as in other cases, to return a verdict for the defendant. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 1711.] 4. SAME NEGLIGENCE-CUSTOMARY SPEED OF PASSENGER TRAIN ON DRY AND WINDY DAYS IS NOT. A railway company owes to the owners of isolated buildings near its tracks no duty to stop or to diminish the customary speed of its regular passenger trains as they pass them on dry and windy days, in the absence of fires previously set or other evidence of the danger of setting a fire. [Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 1672.] 5. EVIDENCE-TESTIMONY THAT ACT WAS NOT DONE BASED ON ABSENCE OF RECORD AND THE RECORD ITSELF ADMISSIBLE. In the absence of memory, one who knows that, if an act had been done by him or by his department, it would have been recorded upon a book or paper which he had at the time and which he identifies, may testify that he knows it was not done, from the absence from the record of any note of it, although this fact does not refresh his memory, and the record and this testimony are competent evidence of the fact that the act was not performed. 6. RAILROADS FIRES-CONDITION OF LOCOMOTIVE DURING PRECEDING MONTH NOT TOO REMOTE. Testimony of the condition of the devices upon a locomotive for arresting sparks and preventing the escape of fire at various times within a month preceding the setting of the fire in controversy is not too remote. 7. SAME EVIDENCE OF REQUIREMENT AND CUSTOM OF INSPECTION COMPETENT. Testimony that for a number of years the railway company had required the firemen of its passenger trains, and that it had been their custom, to 145 F.-37 inspect the dampers, ashpans and dump grates of their locomotives before they started on their trips to see that they were clean and in good order. and that the company had required both firemen and engineers to report what, if anything, was needed, is competent upon the issue of the negligence of the company. (Syllabus by the Court.) In Error to the Circuit Court of the United States for the District of Minnesota. See 122 Fed. 66. P. J. McLaughlin (F. W. Gail and William D. Mitchell, on the brief), for plaintiffs in error. F. W. Root, for defendant in error. Before SANBORN, HOOK, and ADAMS, Circuit Judges. SANBORN, Circuit Judge. This is an action against the railway company for damages for alleged negligence in the operation of one of its locomotives whereby the farm buildings of the plaintiff Woodward were burned. The main line of the defendant's railroad between Minneapolis and Chicago ran within 150 feet of Woodward's buildings. Between the railroad and the buildings there was a traveled highway. On the afternoon of May 1, 1900, after an engine of the defendant drawing a regular passenger train of eight cars had passed southeasterly along the railroad, a fire, which subsequently consumed the buildings, was discovered in some combustible material 106 feet northeasterly from the railroad. It was a dry time, and a strong wind was blowing across the track from the southwest. As the engine passed at the usual speed of about 35 miles an hour, sparks and cinders flew from its smokestack, and some of them were blown into an open window of one of the cars and were probably of the size of a navy bean. When the plaintiffs had established these facts they rested their case, and the defendant introduced evidence to the effect that there were no defects in its locomotive, and that there was no negligence in its operation which could have caused the fire. The court then charged the jury to return a verdict for the defendant, and this instruction is the first alleged error, which is specified. It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting but is of so conclusive a character that the court in the exercise of a sound judicial discretion would set aside a verdict in opposition to it. And, where the trial court has directed a verdict upon the latter ground, the appellate court may not lawfully reverse the judgment founded upon it, unless upon a consideration of the evidence it is convinced that it was not of such a conclusive character that the court below in the exercise of a sound judicial discretion should not have sustained a verdict in the opposite direction. Patton v. Tex. & Pac. Ry. Co., 179 U. S. 658, 660, 21 Sup. Ct. 275, 45 L. Ed. 361; Randall v. Baltimore & Ohio R. Co., 109 U. S. 478, 481, 482, 3 Sup. Ct. 322, 27 L. Ed. 1003; Marshall v. Hubbard, 117 U. S. 415, 417, 119, 6 Sup. Ct. 806, 29 L. Ed. 919; Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U. S. 674, 15 Sup. Ct. 718, 39 L. Ed. 853; Riley v. Louisville & N. R. Co., 66 C. C. A. 598, 133 Fed. 904; Haggerty v. Chicago, Milwaukee & St. Paul Ry. Co. (C. C. A.; decided at the September, 1905, term), 141 Fed. 966; Waters-Pierce Oil Company v. Van Elderen (C. C. A.) 137 Fed. 557, 569, 571; Chapman v. Yellow Poplar Lumber Co., 32 C. C. A. 402, 404, 89 Fed. 903, 905; New York Central, etc., R. Co. v. Difendaffer, 62 C. C. A. 1, 3, 125 Fed. 893, 895; Shoup v. Marks, 62 C. C. A. 540, 545, 128 Fed. 32, 37. The court below directed the verdict on this ground, and the question is: Should that court in the exercise of a sound judicial discretion have sustained a verdict upon the evidence in this case to the effect that the defendant failed to exercise ordinary care to avoid setting a fire to Woodward's property by the operation of its railroad? For the gravamen of this action is not the setting of the fire, but the negligence of the defendant whereby the fire was kindled. The railroad company had the same right to operate its railroad by the use of engines, cars, fire, and steam near the premises of Woodward that the latter had to carry on his farm by the use of horses, men, machinery, steam, and electric power in proximity to the railroad. The limit of the duty of each was to exercise ordinary care to prevent injury to the property of the other by the use of his own. Neither was liable to the other for injuries which resulted from the use of his own property, notwithstanding his exercise of reasonable care to prevent them. There was undisputed evidence that the use of the most approved devices and machinery and the reasonably careful operation of locomotives will retain only about 75 per cent. of the sparks necessarily manufactured in their operation, while about 25 per cent. thereof will be unavoidedly thrown forth from the smokestack upon the air. If the property of Woodward was injured by one of these sparks whose escape ordinary care could not have prevented, the company was not liable for the damage caused thereby, because that damage was not the result of any negligence on its part, and it owed him no duty to avoid damages which reasonable care could not prevent. There was evidence in this case from which a jury might have inferred that the fire was set by a spark thrown from the smokestack of the defendant's locomotive. The specific question, therefore, which the court was called upon to determine, was whether or not the evidence was so conclusive that this spark was not one of the 75 per cent. whose escape might have been prevented by ordinary care that a verdict to the contrary could not have been lawfully sustained. The statute of Minnesota did not relieve the court from the determination of this question. It provides that: "All railroad companies or corporations operating or running cars or steam engines over roads in this state shall be liable to any party aggrieved for all damage caused by fire being scattered or thrown from said cars or engines, without the owner or owners of the property so damaged being required to show defect in their engines or negligence on the part of their employés; but the fact of such fire being so scattered or thrown shall be construed by all courts having jurisdiction as prima facie evidence of such negligence or defect." Gen. St. Minn. 1894, § 2700. Statutes of the same nature have been adopted in the adjoining states of North Dakota and South Dakota. These statutes were passed |