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. A 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 recover, 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., 44 N. Y. Super. Ct. 1, affirmed (App. 1878) 75 N. Y. 605; (Super. Ct. 1880) Id., 46 N. Y. Super. Ct. 526, affirmed (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. v. Smith, 1 S. W. 565.

[1] (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, 1069.

[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.

(Circuit Court of Appeals, Second Circuit. February 7, 1902.)

No. 12.

1. CUSTOMS DUTIES-RELIGIOUS FIGURES.

Certain 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 workmən with a coating some two inches thick of plaster of Paris. When this coat

ing has 'set' or hardened sufficiently, the clay figure inside is broken up and removed, and a plaster of Paris mold thereof is thus obtained. Plaster is then carefully forced into this mold, and when dry is taken out in the form of the original clay figure. This plaster figure, after having been carefully gone over by an artist or skilled workman to cure any defects in the molding, is in turn thoroughly covered with specially prepared plaster for the final mold. This is made in sections, which, when dry, are removed, and together form a perfect mold, and this composite mold becomes the manufacturer's substitute for the artist's clay or plaster cast model, from which he (the manufacturer) produces his molded statues in unlimited numbers. In the molding process the several sections of the mold are in turn laid with the concave side upward, and having a lining of 'carton pierre,' one-half inch or more in thickness, carefully laid and pressed into them by the molder's hands with the aid of suitable tools. The extended arms, fingers, and other slender parts are strengthened by pieces of iron wire laid in the 'carton pierre,' which is then lined either with heavy paper or coarse-woven vegetable fiber cloth secured with glue. After the carton pierre' has dried sufficiently, the several sections of the mold are removed, and their contents joined together around a framework of wood, and a figure is thus formed, the counterpart of the original model. The statue then goes to a skilled workman, called 'finisher,' who, with knife or other instrument, removes any roughness resulting from the joining of the sections, cures any other defects in the molding. and smooths it down generally. It is then passed to the painter and decorator, who completes it in the style desired."

The evidence as to whether these figures, as originally molded or cast, were or were not casts of sculpture, is conflicting. In their present condition they are not so known commercially, or to the profession of sculptors generally. In the technical or professional sense, a cast of sculpture is one taken from an original creation in clay as part of the process of making the completed statue in bronze or marble. In a broader sense, the term embraces casts from sculptured objects in marble or bronze, which reproduce the original objects. These objects have been cast or molded, as above explained, from a sculptured object, using the term "sculptured" in its broadest sense. The provisions of paragraph 649 of said act of July 24, 1897, are as follows:

"649. Regalia and gems, statuary, and specimens or casts of sculpture, where specially imported in good faith for the use and by order of any society incorporated or established solely for religious, philosophical, educational, scientific or literary purposes, or for the encouragement of the fine arts, or for the use and by order of any college, academy, school, or seminary of learning in the United States, or any state or public library, and not for sale."

It seems as though congress must have intended by the term "casts of sculpture" such copies of artistic statuary or other sculpture cast in materials such as plaster of Paris as are adapted, for example, for educational institutions, whether intended to be thereafter used as a part of the process of making the statue or not. It cannot have been the intention of congress, however, by said provision to permit our churches, colleges, and historical societies to import free of duty their whole interior decorations in the plastic art under the guise of casts of sculpture.

Counsel for the importers contends that, inasmuch as these articles are cast, and are copies of sculptured objects, they are, in fact, casts of sculpture, and that, as no trade designation is involved, the testimony of professional sculptors is inadmissible to show the

meaning of said term. But in this case the peculiar phraseology of the statute requires that the court should inquire as to the classes of articles included under the broad term "casts of sculpture," in order to determine which would be appropriate for such importations for religious or literary societies. In its broadest sense "casts of sculpture" might be so perverted as to embrace, for example, an India-rubber doll. It is not necessary, however, in the disposition of this case to determine whether such objects, if imported in their crude state, would be free of duty under said paragraph. They have been advanced by the skill of the artist from a mere manufacture from composition to a completed decorative object. Not only have the figures themselves been elaborately painted and gilded, but in two of the exhibits original paintings have been made, showing sky and clouds, temples, arches, and other decorations entirely independent of the figure itself. To one of the exhibits there has also been added a piece of twine simulating the rope used by soldiers in their infliction of tortures upon the Saviour. The faces have been so painted as to suggest the sentiments of the actors, and paint simulating drops of blood has been applied to the forehead of the figure of the Saviour. Such objects are not "casts of sculpture." The decision of the board of general appraisers is affirmed.

W. Wickham Smith, for appellants.

Chas. D. Baker, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM. Affirmed on opinion of court below.

(113 Fed. 1017.)

THE E. LUCKENBACH (three cases).

(Circuit Court of Appeals, Second Circuit.

Nos. 106-108.

1. TOWAGE-INJURY OF Tow-LIABILITY OF TUG.

February 24, 1902.)

The owner of a tug is not an insurer against marine perils, and is liable only for the want of reasonable diligence and skill in the towing service; nor is an error of judgment on the part of the master equivalent to negligence.

2. SAME.

A tug having in tow five mud scows, proceeding down the Elizabeth river to the dumping grounds in Chesapeake Bay, laid up during the night, owing to a high wind. In the morning the weather was clearing, the wind had abated, and the tug proceeded out into the bay. When near the dumping grounds the wind suddenly increased, the lines parted, and some of the scows were injured. The weight of the evidence showed that there was no good reason to anticipate danger until it was too late to safely return. Held, that the tug was not liable for the damage to the scows.1

Appeals from the District Court of the United States for the Southern District of New York.

1As to perils by wind and waves, see note to The Dunbritton, 19 C. C. A. 467.

These causes come here upon appeals from decrees of the district court, Southern district of New York, dismissing the libels, which were brought to recover for damages sustained by scows while in tow of the steam tug E. Luckenbach in Hampton Roads, about 10 a. m., October 31, 1900. Libelants appeal from a decree dismissing the libel.

The opinion filed below, and here reprinted from 109 Fed. 487, was in full as follows:

BROWN, District Judge. In the forenoon of October 31, 1899, five scows in tow of the tug Luckenbach in Chesapeake Bay, near the ripraps off Old Point Comfort, got adrift in a gale and sustained damages or incurred charges for which the above three libels were filed. The tug and tow had come down Elizabeth river the night previous intending to proceed out into the bay to dump the scows; but meeting a high wind they laid up for the night at Lambert's Point below Norfolk. The following morning between 7 and 8 o'clock, the wind being much abated and the sun out occasionally, the tug resumed her way. On coming into the open bay at Sewell's Point, there was more wind, and when near the ripraps, the wind increased suddenly, the tug's bridle soon broke, and afterwards the lines connecting the tandem scows.

The libel charges the tug with fault, first, in leaving Lambert's Point in the existing conditions of the weather; and, second, in not turning back after leaving Sewell's Point on account of the high wind. The answers deny any negligence and aver that the weather was suitable on leaving Lambert's Point and Sewell's Point but increased suddenly at the ripraps; and that the damage arose from the parting of the lines between the scows supplied by the libelants, and also that the tug was chartered to the libelant and was navigated under his control and direction.

The evidence shows that the libelant was the charterer of the tug for the purpose of towing the mud scows; but the navigation of the tug on the particular trips to which she was assigned, was I think under the direction and control of the master of the tug as the representative of the owner at that time, and that the tug is therefore responsible for any negligence or fault of the master in such navigation.

The owner of the tug, however, is not an insurer against marine perils, and is liable only for the want of reasonable diligence and skill in the towing service. The Margaret, 94 U. S. 494, 496, 24 L. Ed. 146; The Allie and Evie (D. C.) 24 Fed. 745.

I think considerable of the testimony on the part of the libelant as respects the conditions of the weather on leaving Lambert's Point and Sewell's Point, is the result of the wisdom that comes after the event. Mr. Buckner, the government inspector, who was on board the tug to superintend the dumping, and a man of long sea experience and a wholly disinterested witness who was called by the libelant, clearly repels any charge of negligence or fault in leaving both places. He says: