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sun was shining, to allow his wagon, in the condition it was usually in, to stand open when he had taken out the cans, and whether, in his opinion, it would be likely to cause the substance inside to take fire. The answers to these questions were excluded on the ground that the witness was not shown to be qualified to answer them, and the court's ruling in that regard is alleged as error. Exceptions were also taken to the charge of the court to the jury, which rendered a verdict for the plaintiff, and the judgment is brought here for review on writ of error.

G. Harmon, for plaintiff in error.
B. F. James, for defendant in error.

Before LURTON and DAY, Circuit Judges, and WANTY, District Judge.

WANTY, District Judge, after making the foregoing statement of the case, delivered the opinion of the court.

1. The assignments of error relating to the testimony of the four expert witnesses for plaintiff, except that of the witness Young, cannot be considered, as no objection was made on the trial to the testimony of two of them, and to one there was only a general objection, without giving any reason for it. The objection to the answer of the witness Young to this hypothetical question was "that the witness had not been shown to have any practical knowledge of the question." This witness, sworn as an expert, was at the time of giving his testimony, and for the preceding fourteen years had been, filling the chair of advanced chemistry in the Ohio Normal University. He showed that he had studied the subject of nitroglycerine, gave the formula by which it was manufactured, and his testimony agreed with that of the manufacturers and the other chemists, to whose testimony no objection was made. He qualified as an expert, the question asked him was a hypothetical one, and his lack of practical experience was no ground for its exclusion. Bierce v. Stocking, 11 Gray, 174; 12 Am. & Eng. Enc. Law, 433.

2. The question propounded to the witness Smith, asking whether, in his opinion, it was ordinary care and prudence in that business for a shooter, when the sun was shining, to allow his wagon, in the condition it was usually in, to stand open, when he had taken out the cans, was properly excluded, as it called for the determination of an issue which was for the jury. If he had been qualified, he could have sworn to the chemical action of the sun's rays on the nitroglycerine in the wagon, but it would not be for him to say whether such exposure was negligence, as that was an inference to be drawn from the circumstances proven. Motey v. Granite Co., 20 C. C. A. 366, 74 Fed. 155– 159, and cases there cited. The other question was properly excluded on the ground that the witness was not shown to be qualified to answer it. He was a well-shooter, and had had considerable experience, but it was not shown that he had peculiar knowledge of any chemical action that might be produced by the sun's rays upon the substance in the wagon. It was urged that his long experience in handling nitroglycer ine and assisting in its manufacture qualified him to express an opinion, but such qualification is a question for the trial judge, and its determi nation is very largely in his discretion. Mr. Justice Gray, in Manufacturing Co. v. Phelps, 130 U. S. 520-527, 9 Sup. Ct. 601, 603, 32 L. Ed.

1035, thus tersely states the rule: "Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial, and his decision of it is conclusive, unless clearly shown to be erroneous in matter of law. Perkins v. Stickney, 132 Mass. 217, and cascs cited; Sorg v. Congregation, 63 Pa. 156.' See, aiso, Spring Co. v. Edgar, 99 U. S. 645–658, 25 L. Ed. 487, and cases cited.

3. The defendant complains here of the charge of the court on the question of contributory negligence, but the charge given accords substantially with the request made by the defendant, and correctly stated the law; but if it had not been requested, and had not correctly stated the law, no exception having been taken at the time, it could not be reviewed here.

4. There was no proof on the subject of how the nitroglycerine in question in this case was made. A number of witnesses swore that pure nitroglycerine will not explode spontaneously, and that impure nitroglycerine will so explode. The court charged the jury that if they believed from the evidence that pure nitroglycerine would not explode spontaneously, and that this nitroglycerine did so explode, they could take the fact of the explosion into consideration in determining the question as to the purity of the nitroglycerine; but that in considering that question, if they found that pure nitroglycerine would explode as well as impure nitroglycerine, the fact of the explosion could not be considered as bearing upon the question of purity, which instruction was immediately followed by the instruction complained of, which is:

"When there is, as in this case, an explosion of this nitroglycerine, there is a presumption arises that it was from some inherent defect, something in the character of the nitroglycerine itself, due to surplus acid or some other cause, that made it explode, without the intervention of any other agency. Now, that being the presumption, unless that is explained by the evidence, you are warranted in coming to the conclusion that the defendant furnished the plaintiff with impure nitroglycerine, and in that departed from his duty as an employer."

When the jury returned for further instructions this part of the charge was practically repeated, and the defendant complains that after the fact of the explosion, which was admitted, appeared in the case, it erroneously placed upon him the burden of proving that he was free from negligence. Under the evidence in this case, there could be no claim that the cause of the accident could not be accounted for.

It was accounted for if nitroglycerine, when properly manufactured, could not explode spontaneously, and this nitroglycerine did so explode. The jury were compelled to find the other necessary facts before they could infer negligence from the explosion. When that prima facie case was made, the burden of rebutting it was upon the defendant. The case does not come within the rule that the fact of accident carries with it no presumption of negligence on the part of the employer, laid down in Railroad Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136, and Patton v. Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361, nor within the cases in the state courts referred to in defendant's brief. Under the facts in this case, negligence in the

manufacture of the nitroglycerine would be presumed in the absence of evidence showing care in the manufacture of it, as the explosion raises a presumption of negligence, if there is no explanation of the real cause for such explosion. Judson v. Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146, and the note to the same case in 29 L. R. A. 718; Schoepper v. Chemical Co., 113 Mich. 582, 71 N. W. 1081.

We find no error,

and the judgment is affirmed.

(113 Fed. 898.)

FONG MEY YUK v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. February 24, 1902.)

No. 716.

CHINESE-FAILURE TO OBTAIN CERTIFICATE OF RESIDEnce-DeportatION— JURISDICTION.

Act Cong. May 5, 1892, gives a commissioner jurisdiction to hear the charge against a Chinaman of being in the country without a certificate of residence, though section 6, providing for issuance of such certificates to Chinamen, declares that one not obtaining a certificate within a certain time shall be adjudged to be unlawfully in the country, and shall be arrested and taken before a United States "judge"; the act. after continuing in force, by section 1, all laws prohibiting and regulating the coming in of Chinamen, and declaring, by section 2, that any Chinamen adjudged under any of said laws not entitled to remain in the country shall be deported, providing, by section 3, that any Chinaman arrested under "this act, or the acts hereby extended," shall be adjudged unlawfully in the country, unless he shall establish his right to remain to the satisfaction of "such justice, judge, or commissioner"; and Act Cong. March 3, 1901 (31 Stat. 1093), providing that the district attorney may designate the commissioner before whom a Chinaman, arrested for being unlawfully in the country or having unlawfully entered, shall be taken for hearing.

Appeal from the District Court of the United States for the Northern District of California.

The appeal in this case is taken from the judgment of the district court affirming an order of deportation of the appellant, Fong Mey Yuk, who was arrested at San Francisco on April 20, 1901, upon a warrant issued by a United States commissioner upon a complaint sworn to and lodged with said commissioner charging the appellant with being a Chinese manual laborer without the certificate of residence required by the act of congress entitled "An act to prohibit the coming of Chinese persons into the United States." approved May 5, 1892, and the act amendatory, approved November 3. 1893. On May 2, 1901, the appellant was brought to trial before said commissioner. Upon the evidence adduced, the commissioner made his findings and judg ment of deportation, holding that the appellant is a Chinese manual laborer and a subject of the empire of China, and that she was found within the limits of the United States without the certificate of residence required by said acts, and that she had not shown that she had been unable to obtain such certificate for any of the reasons which the act specifies as excuses therefor.

Lyman I. Mowry, for appellant.

Marshall B. Woodworth, U. S. Atty., and Benjamin L. McKin ley, for the United States.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The appeal presents two questions-First, had the United States commissioner jurisdiction to hear and determine the charge set forth in the complaint? And, second, was the evidence sufficient to justify his judgment? Section 12 of the act of May 6, 1882, provides that any Chinese person found unlawfully within the United States shall be deported to the country whence he came, after being brought before some "justice, judge, or commissioner of a court of the United States, and found to be one not lawfully entitled to be or remain in the United States." Section 12 of the act of July 5, 1884, provides substantially the same remedy as that of the act of May 6, 1882. Section 13 of the act of September 13, 1888, provides that any Chinese person found unlawfully in the United States may be arrested upon a warrant issued upon a complaint under oath "by any justice, judge, or commissioner of any United States court,' and when convicted upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, shall be removed to the country whence he came. Section 2 of the act of May 5, 1892, provides "that any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China." The previous acts had required that such person be removed to the country whence he came. Section 6 makes provision for the issuance of certificates of residence to Chinese persons lawfully in the United States, and enacts that "any Chinese laborer within the limits of the United States who shall neglect, fail or refuse to comply with the provisions of this act, or who after one year from the passage thereof shall be found within the jurisdiction of the United States without such certificate of residence, shall be decreed and adjudged to be unlawfully within the United States. and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies and taken before a United States judge." It is contended that all the prior legislation referred to Chinese who unlawfully entered the United States, and that by the act of 1892 provision was made for the deportation of a different class, those who, although they had entered lawfully, had failed to acquire the right to remain, and were therefore unlawfully within the United States; and it is contended that as to this second class the jurisdiction to order deportation is conferred only upon "a United States judge." Section I of the act of May 5, 1892, provides: "All laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act." Those laws, so continued in force, it may be conceded have reference to prohibiting and regulating the coming into this country of Chinese

51 C.C.A.-34

persons and persons of Chinese descent, and not the deportation of Chinese persons found to be unlawfully within the country. There would be no authority in the act of May 5, 1892, for the present proceeding, were it not for section 3, which provides as follows: “That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge or commissioner, his lawful right to remain in the United States." That section declares in plain terms that a proceeding may be instituted before a commissioner against any Chinese arrested under the provisions of the act of May 5, 1892. It has the effect to enlarge the provision of section 6, and to enact that the proceeding may be not only before a United States judge, but that it may be before a justice, judge, or commissioner. If there be any doubt that this is the true construction of the act, it is dispelled by the act of March 3, 1901 (31 Stat. 1093), which provides as follows: "That it shall be lawful for the district attorney of the district in which any Chinese person may be arrested for being found unlawfully within the United States or having unlawfully entered the United States to designate the United States commissioner within such district before whom such Chinese person shall be taken for hearing."

We find no ground for holding that the evidence is insufficient to justify the findings, judgment, and order of deportation. The commissioner saw the witnesses, heard their testimony, and reached the conclusion that the appellant was born in China, and that she was a laborer, and that she had not procured the certificate entitling her to remain in this country, as provided by law. There is no contention that in so holding he was guided by any erroneous view of the law or the evidence. Such being the case, we would not be justified in disturbing his conclusion, even if we deemed it contrary to the weight of the evidence, which we do not. The burden of proof rested upon the appellant to prove to the "satisfaction of the court" the facts upon which depended her right to remain in the United States. This she failed to do.

The judgment of the district court is affirmed.

(113 Fed. 900.,

ST. LOUIS MIN. & MILL. CO. OF MONTANA et al. v. MONTANA MIN. CO., Limited.

(Circuit Court of Appeals, Ninth Circuit. March 10, 1902.)

No. 714.

MINING EXTRALATERAL RIGHTS.

The owner of a mining claim given by Rev. St. § 2322, the right to possession of surface and everything within his claim, except veins having their apices in the surface of another claim, and also given the right to follow into adjoining claims veins having their apices in his claim, cannot tunnel from his claim through an adjoining patented claim till he strikes a vein therein having its apex in his claim; section 2319

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