and Youell testified that Walquist was not boring holes; that he was handling and placing one end of each of the timbers, while Hull placed the other end; and that he stood at the place where the opposite end of the timber from Hull's end was to be placed, and his work was to catch and place the timber as it was swung to him, and Jones, Youell, and Olson testified that Walquist never bored any holes with the motor auger. There was undisputed testimony that the auger was heavy, that it weighed 10 to 12 pounds, that, if the operator let go of it, it would fall and break, and that no auger fell or broke at the time of Walquist's injury. Crimley testified that the timber was 32 feet long and was to be put in a certain place. Olson, Hull, and Youell testified that it was only 12 or 14 feet in length, and that it was to be put in a different place from that specified by Crimley. Crimley testified that the timber was swung to its place with unusual force and rapidity, and that no notice or warning of its approach was given to Walquist. Hull, who handled one end of it, testified that the timber came slowly, gradually, as they usually swung; that Walquist was standing there to catch hold of the timber and land it; that the timber came with a safe speed, with just the slow customary speed, but Walquist was talking to some man and paying no attention to his work, and Hull called, "Look out!" and the timber knocked Walquist over. Olson and Jones testified that the timber was moving slowly in the usual way, and that they used the same appliances and operated them in the same way as they had been doing during the days past. Crimley testified that it was the custom to use a guide rope or line on a timber when raising it with a derrick, in order to prevent its circling or twisting, and that when, on raising it, it circles or twists, it is customary to let it down again, and then raise it again slowly. Jones, Youell, Light, Olson, and Hull testified that the lines attached to the sides of the boom operated by Jones by means of the nigger heads and the engine controlled the movement, speed and steadiness of the swing of the boom, and Olson, Light, and Hull testified that where the movement of the boom was controlled in that way, and the operation was in an open space, away from buildings or such obstructions, a guide rope or line attached to the timber was not usually used, and that they had never seen one so used, and there was no custom to use it.

[1] The burden was on the plaintiff to prove that the Bridge Company was guilty of negligence or breach of duty which was the proxiinate cause of the injury to Walquist. The rules of law by which the question of law this case presents must be answered are:

[2-4] It is the duty of the employer to exercise ordinary care to furnish to its employé a reasonably safe place in which to work, and to exercise ordinary care to furnish him with reasonably safe appliances with which to perform his work, and this duty may not be so delegated by him that he may escape liability for its breach.

It is not, however, the duty of the employer to guard his employé against the risk and danger that a reasonably safe place it furnishes, or reasonably safe appliances it provides, may become dangerous by the negligent use of them by the latter's fellow employés, or by the negligence of his superior fellow servant, his foreman or superintendent, in the performance of the latter's duty of directing his sub

ordinate fellow employés in the performance of the work in which they are engaged. It is the duty of the employer to exercise reasonable care to provide place and appliances, but it is the duty of the employés to exercise reasonable care so to use the place and appliances furnished that their use shall inflict no injury upon them. The duty of the employer is one of original construction and provision. The duty of the employé is one of operation. The employé assumes the ordinary risks and dangers of his employment, and among these the risks and dangers of the negligence of his fellow servants in the performance of the work including the risk and danger of the negligence of his superior, be he foreman or superintendent, who in his direction or failure to direct the operation of the work is his fellow servant. Weeks v. Scharer, 111 Fed. 330, 335, 49 C. C. A. 372, 377; Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Gulf Transit Co. v. Grande, 222 Fed. 817, 819, 820, 138 C. C. A. 243, 245, 246; Northern Pac. Ry. Co. v. Hambly, 154 U. S. 349, 359, 14 Sup. Ct. 983, 38 L. Ed. 1009; Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181; City of Minneapolis v. Lundin, 58 Fed. 525, 527, 7 C. C. A. 344, 346; American Bridge Co. v. Seeds, 144 Fed. 605, 611, 612, 75 C. C. A. 407, 413, 414, 11 L. R. A. (N. S.) 1041; Wood v. Potlatch Lumber Co., 213 Fed. 591, 593, 594, 130 C. C. A. 171. "The true idea," said Judge Brewer, "is that the place and the instruments must in themselves be safe, for this is what the master's duty fairly compels, and not that the master must see that no negligent handling by an employé of the machinery shall create danger." Howard v. Denver & Rio Grande Ry. Co. (C. C.) 26 Fed. 837, 842.

[5] No substantial evidence has been discovered in this case that the Bridge Company failed to exercise ordinary care to furnish a reasonably safe place in which to construct this ice breaker, or that it failed to exercise ordinary care to furnish reasonably safe machinery and appliances with which to handle the timbers and build the structure. The nearest possible approach to any such evidence is Crimley's testimony that it was the custom, in raising timbers with a derrick, to use a line attached to the timber to prevent the whirling or twisting of the timber when it was raised, and that such line was not used on the timber which struck Walquist. It is possible that an inference might be drawn from this testimony that the Bridge Company furnished no snub line, or material to make a snub line, which the employés could use. But, even if that inference be indulged, this evidence falls far short of substantial evidence of negligence that was the proximate cause of the injury: (1) Because there is no evidence in the case that the failure to furnish, or even to use, such a line, caused, or probably caused, the injury, for the testimony of the plaintiff's witness is not that the injury was caused by the whirling or twisting of the timber when it was raised, but it is that it was caused by too forcible and rapid a swinging of the boom, a movement of operation, not of provision, which, if it occurred, was caused by the negligence of Walquist's fellow servant, the foreman, Olson, in his direction of the operation, or of the other fellow servants of Walquist, for which the Bridge Company is not liable. All the other acts or omissions of

which there is any testimony, and of which the plaintiff complains, such as the failure to raise the timber to a sufficient height, the failure to give Walquist warning of its approach, the failure to station a person near him to inform him of its movements, were acts or omissions in the operation of the work for which the foreman or the other fellow servants of Mr. Walquist were responsible, and the Bridge Company was not. The conclusion is that there was no substantial evidence in this case of any causal negligence of the Bridge Company, and the court should have instructed the jury to return a verdict in its favor.

Counsel for the plaintiff below cite Kreigh v. Westinghouse & Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984, in opposition to this conclusion. The citation does not appear to be helpful to them. In that case the employer furnished a derrick with only one guide rope, which was attached to the end of the boom, so that when the rope was slack the boom could not be steadied or controlled. To prove that the defendant did not exercise reasonable care to furnish a reasonably safe boom, the plaintiff introduced testimony that the usual method of constructing such booms was to provide them with two ropes, one attached on either side of the boom, to be used to haul it back and forth, and for the purpose of steadying its operation, the very method of construction of the boom furnished by the Bridge Company in the case at bar, and the court held that this testimony presented the question for the jury whether the failure of Westinghouse & Co. to furnish such a derrick and boom as the Bridge Company provided in this case was not negligence; and the court in that case, after stating the rule that an employé may assume, in the absence of notice, that reasonable care has been exercised by the employer in furnishing appliances requisite to carry on the business, set forth the principle that is decisive of the case at bar, in these words:

"But, while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty of providing a reasonably safe appliance and place for his employés to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. Armour v. Hahn, 111 U. S. 313 [4 Sup. Ct. 433, 28 L. Ed. 440]; Perry v. Rogers, 157 N. Y. 251 [51 N. E. 1021]." Kreigh v. Westinghouse & Co., 214 U. S. 249, 256, 29 Sup. Ct. 619, 622 [53 L. Ed. 984]. ́

There are other assignments of alleged errors; but as, if errors were made, the questions of law to which they refer are not likely to arise. upon a second trial of this case, their discussion is omitted.

Let the judgment below be reversed, and let the case be remanded to the court below for a new trial.

(243 Fed. 126)

YEE CHUNG v. UNITED STATES. *

(Circuit Court of Appeals, Ninth Circuit. May 28, 1917.)

No. 2799.

1. ALIENS 32(8)-PROCEEDINGS TO DEPORT-WEIGHT AND SUFFICIENCY OF EVIDENCE.

In a proceeding to deport a person of Chinese descent, evidence held sufficient to support his claim that he was a native-born citizen of the United States.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 84.]

2. ALIENS 32(8)—PROCEEDINGS TO DEPORT-WEIGHT AND SUFFICIENCY OF EVIDENCE.

In a proceeding to deport a Chinese person, the court could not arbitrarily and without reason reject or discredit the testimony of witnesses favorable to the defendant, on the ground that they were Chinese persons and unworthy of credit.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 84.]

Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benj. F. Bledsoe, Judge.

Proceeding by the United States to deport Yee Chung. From an order affirming an order of deportation, the defendant appeals. Reversed and remanded, with directions.

John L. McNab, of San Francisco, Cal., and Isidore B. Dockweiler, of Los Angeles, Cal., for appellant.

Albert Schoonover, U. S. Atty., and J. Robert O'Connor and Clyde R. Moody, Asst. U. S. Attys., all of Los Angeles, Cal.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS, Circuit Judge. The appellant was found by a commissioner of the United States to be unlawfully in this country and ordered deported to China, which order was, on hearing upon a writ of habeas corpus, affirmed by the court below. He claims to have been born in the United States of parents of Chinese descent, who, at the time of his birth, were subjects of the emperor of China, having a permanent domicile here and being engaged in business, and, therefore, that he is a citizen of the United States. It was said by Judge Holt in the case of United States v. Leu Jin (D. C.) 192 Fed. 580, that it is impossible in such cases "to be sure what the truth is," in which case, nevertheless, he reversed the order of deportation made by the commissioner, pointing out the insufficiency of the various inconsistencies relied upon by the government to overcome the evidence given that the defendant was born in this country. In the case of Pang Sho Yin v. United States, 154 Fed. 660, 83 C. C. A. 484, the Circuit Court of Appeals for the Sixth Circuit reversed the judgment of the District Court, which had affirmed an order of deportation made in a similar case by the commissioner, based on the immigration inspector's examination of the respondent, his answers to questions put to him on such examination, "and the testimony of the inspectors that at the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Rehearing denied October 8, 1917.

time they seized the respondent at Ecorse he was coming from the direction of the Detroit river, in company with three other persons, one of whom was a Chinese person, and the other two white men." In the inspector's examination, said the court:

"The respondent stated that he was 34 years old; that he was born in San Francisco; that his father's name was San Foy, and his father died when the respondent was quite young; that he went to China when he was 4 years old; that he had lived there until his recent return to this country; that his occupation there was farming; that when he returned he landed in Vancouver, British Columbia, and paid a head tax there of $500; that he had been in various parts of Canada; that he left Windsor at 10 o'clock the evening before his arrest by the inspectors, and came across the Detroit river in company with the other three persons mentioned by the inspectors; and that he was then on his way to Paducah, Ky., where he had a relative. This account might fairly excite suspicion, but it was not irreconcilable with the supposition that on his return to America he had no clear ground for expecting that he could prove his birth in the United States, and establish his identity and right to entrance here, and that he did not intend to rely upon the fact of his birth in the United States. But several persons have been found and produced as witnesses whose veracity is vouched for by their neighbors, who swear to the circumstances of his nativity in San Francisco and his going to China when quite young, all as stated by him. One of these states the name of the street in San Francisco where the father lived and the respondent was born, and the month and year of the event, and he then knew the father and son; that he (the witness) afterwards saw the respondent in China, when the latter was 10 years old, and now recognizes him as the same person. The identification of the appellant by the witness as the child of their acquaintance in San Francisco is so positive that we cannot feel justified in disregarding it when the consequences are so serious as the possible (and we think probable) expulsion from his native country of one who is entitled to share the birthright of citizenship. We think the judgment and order of the District Court should be reversed, and the appellant discharged.”

See, also, United States v. Chin Len, 187 Fed. 544, 109 C. C. A. 310; Woo Jew Dip v. United States, 192 Fed. 471, 112 C. C. A. 609.

[1] In the present case the appellant claims to have been born February 17, 1880, at 728 Sacramento street, San Francisco, where his father and mother at the time resided, the former being then bookkeeper for and a member of the firm of Quong Woh Chong; that in 1881 his father took his mother and himself (then about 2 years old) to China, where his father remained several months, and then returned to San Francisco, leaving the appellant in China with his mother; that appellant remained there until he was about 18 years old; that he married in China, and had one son born to him there July 5, 1897, and another born there after his return to this country; that in the latter part of December, 1897, he came back to the United States by way of Vancouver, British Columbia, going thence to Montreal, and from there to Burlington, Vt., where he was arrested on the charge of being unlawfully in this country, and after examination by a United. States commissioner was discharged by that officer; that his father, some time after his return to the United States, sold his business interest in San Francisco and went to Boston, where he entered the merchandise store of Sam Sing; that when the appellant was arrested in Burlington his father went from Boston to Burlington and was a witness at his examination, and after his discharge appellant went to Boston with his father, where he remained a few days, when the latter

155 C.C.A.-42