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unless the injury was caused by the use of unnecessary force by the brakeman.-Railroad Co. v. Bernard, 37 S. W. 811.
[d] (Ky. Super. Ct. 1886) A carrier may eject from its train one who has no right to be there, but before putting him off must so reduce the speed of the train as to insure his safety, or must take him to the next stopping place.-Railroad Co. v. Ferrell, 7 Ky. Law Rep. 607.
(e) (No. Sup. 1897) Where a brakeman, acting within the scope of his authority, negligently ordered a trespasser to alight from a moving train, and the trespasser was injured while obeying the order, the company is liable, though no actual force was used.-Farber v. Railway Co., 40 S. W. 932, 139 Mo. 272.
[f] (Mo. App. 1900) A trespasser stealing a ride may be removed from a train, but cannot be compelled to leap from a train running at such speed as to make the jump hazardous; but an instruction authorizing a recovery if plaintiff was compelled to leave the train while in motion is erroneous, since the motion may be such as not to make the alighting dangerous.—Krueger v. Railway Co., 84 Mo. App. 358.
[g] (N. C. Sup. 1901) Plaintiff was stealing a ride beneath a freight car, and while the train was moving about five miles an hour the brakeman threw a rock at him and cursed him and told him to get off, and the flag. man said, "Give it to him," and plaintiff was injured by jumping off. Held, that the company was liable for the wrongful manner in which the ejection was accomplished.-Cook v. Railway Co., 38 S. E. 925, 128 N. C. 333.
[b] (Tex. Civ. App. 1895) A railroad company is liable in damages to a trespasser who was ejected from a moving train by the porter, and seriously injured, when greater force than necessary was used.-Railway Co. v. Huffman, 32 S. W. 30.
[i] (Va. Sup. Ct. App. 1896) A trespasser on a train must be given a reasonable opportunity to alight without danger, and may recover for injuries received through being forced to leave the train, while it is in motion, by employés acting within the scope of their employment.-Railroad Co. v. Anderson, 25 S. E. 947, 93 Va. 650.
[j] (Wis. Sup. 1900) A railway company may require a willful trespasser on one of its moving trains to get off without stopping the train, its speed not being so great that an injury to him would be reasonably expected to occur.-Bolin v. Railway Co., 84 N. W. 446, 108 Wis. 333, 81 Am. St. Rep. 911. 6. Contributory Negligence of Trespasser.
[a] (La. Sup. 1901) Where a railway company's brakeman pelts a trespasser with rocks in order to drive him from the car, and in attempting to escape he is injured, his act in stealing the ride is not contributory negligence, so as to relieve the company from damages for the injury received.Dorsey v. Railway Co., 29 South. 177, 104 La. 478, 52 L. R. A. 92.
[b] (Tex. Sup. 1898) An engineer of a switch engine threw hot water upon a trespasser riding upon the footboard, causing him to jump off and fall beneath the wheels. Held, that the act of the engineer was willful assault, and therefore the negligence of the trespasser in placing himself in such a position was not a contributing cause of the injury.-Railwiry Co. v. Zantzinger, 48 S. W. 503, 92 Tex. 365, 44 L. R. A. 553, 71 Am. St. Rep. 859.
(c) (Tex. Sup. 1898) His act in jumping from the engine, being induced by a willful injury, was not negligence.-Railway Co. v. Zantzinger, 48 S. W. 563, 92 Tex. 365, 44 L. R. A. 553, 71 Am. St. Rep. 859.
[d] (Wis. Sup. 1900) Where a trainman commands a willful trespasser, riding on the bumpers of a freight train moving at the rate of four or five miles an hour, and wbo such trainman has reasonable ground to believe is skilled in jumping on and off trains under the existing circumstances, to get off, no means reasonably calculated to cause such trespasser to lose his self-control being used to enforce the command, an intention to injure such trespasser, necessary to a willful injury, cannot reasonably be inferred therefrom, so as to preclude a defense of contributory negligence.--Bolin v. Railway Co., 84 N. W. 446, 108 Wis. 333, 81 Am. St. Rep. 911.
7. Actions for Wrongful Ejection.
[a] (Ill. App. 1900) Deceased, with three other boys, got on the footboard of an engine in defendant's yard. The engineer, on discovering the boys and while the engine was moving, started towards them. The three boys testified that he ordered them to get off, and that he kicked one of them in the back, and kicked deceased with such force that he fell off and was run over by the engine. The engineer denied that he ordered the boys off, or that he kicked them. Held that, in a suit against the railroad company for the death, a finding for plaintiff will not be disturbed, since, if the boys' testimony was believed by the jury, the company was liable.- Railway Co. v. Hendrian, 92 Ill. App. 462, judgment affirmed (Sup. 1901) 60 N. E. 902, 190 Ill. 501.
[b] (N. C. Sup. 1899) In an action for death of a trespasser on a train hy wrongful act of defendant's servant, the proper issues are whether plaintiff's intestate was killed by defendant's negligence, whether he contributed to his death by his own negligence, and whether defendant by the exercise of reasonable care and prudence could have avoided the accident notwithstanding intestate's contributory negligence.- Pierce v. Railroad Co., 32 S. E. 399, 124 N. C. 83, 44 L. R. A. 316. 8. Pleading.
[a] (Ala. Sup. 1900) Where the complaint in an action against a railroad company for damages for injuries to a trespasser by being shoved from a moving freight train alleges that the plaintiff was wantonly and recklessly or intentionally injured by defendant through its servant or agent, it states a cause of action against defendant.-Railroad Co. v. Robinson, 28 South. 28. 125 Ala. 483.
[b] (Ala. Sup. 1900) The word “recklessly,” when used conjunctively with “wantonly,” means something more than "negligently,” and assignments of demurrer on the idea that the word "recklessly,” used conjunctively with “wantonly,” in a complaint for personal injuries inflicted on plaintiff in removing him from a freight train as a trespasser, means “negligently," are without merit.--Railroad Co. v. Robinson, 28 South, 28, 125 Ala. 483.
[c] (Tex. Civ. App. 1900) Where plaintiff alleged that defendant's employés negligently and recklessly compelled her son to jump from its train while in motion, and that the boy jumped, alarmed by their threats, a demurrer on the ground that the son was a trespasser was properly overruled, since the allegations were sufficient to charge willful negligence, and this, if sustained, would have entitled plaintiff to recover, though her son was a trespasser.-House v. Blum, 56 S. W. 82.
[d] (Tex. Civ. App. 1900) Where plaintiff, a trespasser on a freight train, was thrown therefrom by the brakeman, a defense that plaintiff knew of a rule forbidding him to ride, and that the brakeman was acting for himself in taking plaintiff aboard, and also in ejecting him from the train, cannot be considered, because not specially pleaded.-Railway Co. v. Black, 57 S. W. 330, 23 Tex. Civ. App. 119. 9. Evidence.
[a] (Ill. App. 1898) A trespasser on a freight train, suing for injuries caused by his expulsion by a brakeman, has the burden of showing that the brakeman had authority to expel him.-Railway Co. v. Brackman, 78 Ill. App. 141.
[b] (Mo. Sup. 1897) A conductor was permitted without objection to testify that after an accident to plaintiff's son, a trespasser, he stopped the train, and took the boy into the caboose, and that on being asked how he came to be injured the boy answered that the brakeman put him off, and in trying to get on he got hurt. Held that, though incompetent as against plaintiff, the evidence would support an instruction that, if the boy was injured while attempting to board the train, there could be no recovery.-Farber v. Railway Co., 40 S. W. 932, 139 Mo. 272.
[c] (Mo. App. 1900) Expressions of employés not connected with the removal of a trespasser from the train are inadmissible on the trial to recover damages for such removal.-Krueger v. Railway Co., 84 Mo. App. 358.
[d] (Mo. App. 1900) A brakeman cannot be asked whether certain acts
are in the line of his duties, but he could state what he was directed to do, or that he had done certain acts, and how long he had been accustomed to do them.-Krueger v. Railway Co., 84 Mo. App. 358.
(e) (N. H. Sup. 1995) There was evidence that the conductor, on ordering plaintiff to leave the car, almost immediately ejected, or attempted to eject, bim, slapped him in the face, and struck him so hard that finger prints were on his face a short time thereafter. Held, that the evidence was competent on the questions whether the conductor ejected, or attempted to eject, plaintiff without giving him a sufficient opportunity to leave, or used more force than was necessary.-Rowell v. Railroad Co., 44 Atl. 488, 68, N. H. 358.
[f] (Tex. Sup. 1901) Where petition, in an action for injuries to a trespasser on a train, alleged that the brakeman of the train was authorized to eject trespassers, and acted within the scope of his authority in attempting to expel plaintiff, evidence was admissible to prove that rules of the company forbidding brakemen to eject trespassers were mere pretexts, and that in practice bra kemen were empowered by defendant to exercise such authority. --Railway Co. v. Rutherford, 62 S. W. 1056, 94 Tex. 518, affirwing judgment (Civ. App. 1901) 62 S. W. 1069.
[g] (Va. Sup. Ct. App. 1896) In an action against a railroad company, it appeared that plaintiff got on a box car to steal a ride. He testified: That he got on between two box cars, and was standing between the cars, when a man said, "What are you doing?” That he just turned his back to get off, “and he kicked me and knocked me off.” His testimony placed the man who kicked him off on top of the car, and he testified that the man had nothing in his hands: "It felt like a kick;" "I guess it was a kick." The testimony showed that from the top of the car to plaintiff's shoulder, where he said he was kicked, was 3/4 feet, and that it was impossible for a man to stand on top of the car and kick down 34 feet, especially when the cars were in motion. Held, that a verdict for plaintiff was contrary to the law and evidence.—Railroad Co. v. Anderson, 25 S. E. 947, 93 Va. 650. 10. Trial.
[a] (Kan. Sup. 1896) Whether a train from which a trespasser was ejected was running too fast for his safe ejection is a question of fact for the jury. -Railway Co. v. Mitchell, 13 Pac. 244, 56 Kan. 324.
[b] (Ky. App. 1899) Where the evidence tended to show that a brakeman, immediately after frightening plaintiff, a trespasser, from the train, pushed him against the moving car so that his feet were crushed under the wheels, it was error to instruct the jury that there could be no recovery unless plaintiff was still holding to the car when the brakeman seized him; the whole being a continuous transaction, and the removal of trespassers from the tra in being within the apparent scope of the brakeman's duty.-Elliot v. Railroad Co., 52 S. W. 833.
[c] (Ky. App. 1901) Two men entered a freight car at B. for the purpose of stealing a ride to a distant station. After passing one station, the train stopped at a place at which it was not accustomed to stop, and several hours thereafter the two men were found at that place, near the track, unconscious from injuries which seemed to have been inflicted by some blunt or heavy instrument. It was the duty of the servants in charge of the train to eject trespassers on discovering their presence. In an action against the railroad company to recover damages for the death of one of the men, held, that a peremptory instruction for defendant was proper, as the jury could not infer that the men were ejected from the train, and that unnecessary force was used in ejecting them.-Morris' Adm'r v. Railroad Co., 61 S. W. 41.
[d] (Ky. Super. Ct. 1886) In an action by a trespasser against a carrier for being ejected, it is error to instruct the jury that they may find for plaintiff if they believe defendant's employés used force in ejecting plaintiff from its railroad car “when such force was not necessary," as plaintiff was there without right, there being no evidence that he would have left the car without force.- Railroad Co. v. Ferrell, 7 Ky. Law Rep. 607.
[e] (Mo. Sup. 1897) Where the brakeman who ejected plaintiff, a trespasser, and other brakemen testified that it was the brakeman's duty to put trespassers off, it was error to leave it to the jury whether such ejection was a part of the duty of the brakeman.-Farber v. Railway Co., 40 S. W. 932, 139 Mo. 272.
[f] (Mo. Sup. 1897) In an action for ejection of plaintiff's son, a trespasser, by a brakeman acting within the scope of his employment, an instruction that if "said employé forced plaintiff's son to comply with such order by stepping on his fingers on the ladder whereon plaintiff's son was then standing, and that in so doing said employé failed to exercise ordinary care to put off said son of plaintiff in a place and manner safe to life and limb (regard being had to all the facts and circumstances shown by the evidence),” the verdict should be for plaintiff, authorizes a finding for plaintiff if the brakeman negligently ordered the son to leave the train while in motion, and he was injured while obeying the order, though the brakeman may not have stepped on his fingers to force him off.-Farber v. Railway Co., 40 S. W. 932, 139 Mo. 272.
[g] (Mo. App. 1897) A trespasser on a freight train was pushed from the train while it was in motion, and fell under the wheel, having a leg cut off. There was evidence by employés of the road that the duty of a brakeman on discovering a trespasser was to warn him away, and to then notify the conductor if he refused to leave. former conductor testified that it was the duty of brakemen to expel intruders. Held, that the question whether, at the time of the injury, the brakeman was acting within the scope of his authority, was for the jury.—Brennan v. Santa Fé Receivers, 72 Mo. App. 107.
[h] (N. Y. Sup. 1899) In an action against a railroad company for injuries alleged to have been caused by defendant's conductor in removing plaintiff from a moving freight train on which he was trespassing, an instruction that if, when plaintiff was about to alight therefrom, the conductor pushed him, so that he was thrown to the ground and injured, he could re cover, was proper, when based on the version of the transaction as shown by plaintiff's testimony.-Barrett v. Railroad Co., 61 N. Y. Supp. 9, 45 App. Div. 225.
[i] (N. Y.) Whether a conductor, in kicking from the platform of a street car a boy who was stealing a ride, was acting through malice, and hence outside his authority, or through zeal in the performance of his duty, is a question for the jury. -(Super. Ct. 1878) Hoffman v. Railroad Co., 4 N. Y. Super. Ct. 1, affirmed (App. 1878) 75 N. Y. 005; (Super. Ct. 1880) Id., 46 V. Y. Super. Ct. 526, atfirmed (App. 1881) 87 N. Y. 25, 41 Am. Rep. 337.
[j] (N. C. Sup. 1901) Where plaintiff sued for injuries arising from a wrongful ejection from a train, and defendant offered evidence denying that plaintiff was forced to get off, the question was properly submitted to the jury.-Cook v. Railway Co., 38 S. E. 925, 128 N. C. 333.
[k] (Tex. Sup. 1886) A railroad company, defendant in an action for damages for putting plaintiff off a train, is not entitled to have the judge charge that, if plaintiff was a trespasser, and refused to pay fare, she could be put off at any station, if plaintiff's uncontradicted testimony shows that she was on the train by an innocent and natural mistake. — Railroad Co. 7. Smith, 1 S. W. 565.
 (Tex. Sup. 1901) Where, in an action for injuries to trespasser ejected from train by brakeman, there was evidence that it was the custom of conductors to delegate to brakemen the authority to eject trespassers, it is no objection to an instruction that, if general officers of defendant company knew that conductors were accustomed to delegate such authority to the brakemen and retained them in their employment, defendant company thereby waived such instruction, that there was no evidence that the particular conductor of the train from which plaintiff was ejected had intrusted the brakeman on the train with such power.-Railway Co. v. Rutherford, 62 S. W. 1056, 94 Tex, 518, affirming judgment (Civ. App. 1901) 62 S. W, 1009.
[m] (Tex. Civ. App. 1899) Where an engineer on a moving engine throws steam so as to strike a trespasser standing on the footboard, causing him to jump, whereby he was injured, an instruction that if the engineer threw the steam to frighten the trespasser off, and such act was negligent, defendant was liable, requires the finding of a fact making the engineer's act willful, so that the additional requirement that it must also have been negligent was harmless.--Railway Co. v. Zantzinger, 49 S. W. 677.
(n) (Tex. Civ. App. 1900) Where the evidence showed that a trespasser on a train was assaulted by the conductor while getting off the car, and there was no evidence of burglarious intention, it was not error to instruct that, though plaintiff was on the car without right, and attempting to break into it, yet if the conductor used more force than was necessary to eject him, and keep him from breaking into such car, then defendant was liable for the damages sustained.-Southern Pac. Co. v. Bender, 57 S. W. 574, 24 Tex. Civ. App. 133.
(113 Fed. 1016.)
BENZIGER et al. v. UNITED STATES.
No. 12, 1. Customs DUTIES-RELIGIOUS FIGURES.
Certa in figures five feet six inches in height, representing religious subjects, and scenes in the life of the Saviour, composed of pulverized stone, cement, plaster of Paris, and other materials, and colored and otherwise decorated, were properly assessed for duty under Act July 24, 1897, pars. 97, 450, at 45 per cent. and 35 per cent. ad valorem, as manufactures of plaster of Paris not specially provided for, or as articles and wares composed wholly or in chief value of earthy or mineral substances not specially provided for; and were not exempt from duty, under paragraph 649 of said act, as casts of sculpture imported in good faith
for the use of a society incorporated for religious purposes. Appeal from the Circuit Court of the United States for the Southern District of New York.
This was an appeal by the Importers from a Decision of the Board of United States General Appraisers. From an affirmance of such decision the importers appeal.
The opinion filed below, and here reprinted from 107 Fed. 257, was in full as follows:
TOWNSEND, District Judge. On March 25, 1899, Benziger Bros. imported into the port of New York certain figures in the round five feet six inches in height, representing the Saviour, St. Anthony of Padua, and other religious subjects, and certain bas reliefs representing scenes in the life of the Saviour and known as “Stations of the Cross." These objects are composed of pulverized stone, cement, plaster of Paris, terra cotta, and other materials, and are colored and otherwise decorated. They were assessed for duty at 35 per cent, and 45 per cent. ad valorem, under the provisions of paragraphs 450 and 97 of the act of July 24, 1897, as “manufactures of plaster of Paris not specially provided for," or as "articles and wares composed wholly or in chief value of earthy or mineral substances not specially provided for.” The importers protested, claiming that the merchandise was exempt from duty as "casts of sculpture imported in good faith for the use of a society incorporated for religious purposes," under paragraph 649 of said act. These objects are produced in the following manner, as stated by the board:
"The clay model of the subject, of desired size, is covered by a workman with a coating some two inches thick of plaster of Paris. When this coat