sistant Secretary of the Treasury, to the collector at New York of March 7, 1898 (19,052), Synopsis of Decisions, Treasury Department (1898), vol. 1, p. 365, that the classification of extract of nutgalls, according to the ruling of March 5, 1879 (3,898), had been followed by the Department until that time. It further appears that the appraiser at New York at that time expressed the opinion that the extract was a nonenumerated manufactured article, and dutiable at the rate of 20 per cent. ad valorem, and that it did not assimilate to dyewood extracts. This arose under the act of 1897. The Assistant Secretary expressed no cpinion on the matter, but simply directed that the extract should be classified accordingly, "leaving the importers to their remedy by protest." There had appeared in the act of 1883 (Act March 3, 1883, c. 121, 22 Stat. 488 [U. S. Comp. St. 1901, p. 2247]) a provision for "nutgalls" "advanced," which disappeared in the act of 1894 (Act Aug. 27, 1894, c. 349, 28 Stat. 509), but which now appears in paragraph 20 (30 Stat. 152 [U. S. Comp. St. 1901, p. 16281), as we have fully explained. This made no change in the practical construction of the statute until the letter of March 7, 1898, and the decision of the Board of General Appraisers of July 11, 1900 (22,278, G. A. 4,716), Treasury Decisions, vol. 3, 504, where it was ruled that extract of nutgalls was to be classified as excrescences or nutgalls advanced, either by direction or under the similitude clause.

Meanwhile, there came the decision of the Board of General Appraisers of July 3, 1896 (17,354, G. A. 3,574), Synopsis of Decisions, Treasury Department (1896), 633, to the effect that a certain importation known as "Keller's Tannin Powder" was dutiable as tannin or tannic acid. The decision remarked that tannin and tannic acid may be regarded as synonymous terms. This was shown to be a powder produced from nutgalls, and the Board observed that it was conceded "to be something more than nutgalls simply powdered, which, as it said, would contain woody fibre and other matter insoluble either in alcohol or water." It was stated that the importation contained 85.30 per cent. tannic acid, more than three times as much as extract of nutgalls. It was also said that, being imported and sold by only one importer, it had no general commercial designation. The Board thought it was tannin, and assessable as such, and this without any reliance on the similitude clause. It seems to have been supposed that this reversed the former rulings which we have cited, but there is no indication of any such intention. The former rulings were not even referred to, and the decision of the Board of General Appraisers of June 11, 1900, made no reference to this decision of July 3, 1896, but continued to refuse to classify extract of nutgalls as tannin or tannic acid. Indeed, it went so far in this direction as to close its last opinion with the following positive phraseology:

“We deem it advisable to admonish classifying officers to exercise great care in order that this article, nutgall extract, shall not be confounded with concentrated solution of tannin or tannic acid."

Pending all these decisions, there had been no change in the statutes which could affect the present claim of the United States that the importations to which this appeal relates should be classified as tannin

or tannic acid, either by direction or similitude. The specification of "nutgalls advanced," etc., so far from strengthening the case in favor of a classification as tannic acid or tannin, only weakened it by adding to the range of possible similitudes. Thus, by an unbroken practice of 26 years, from 1874 to 1900, with customs acts always specifically providing for tannin and tannic acid, and none specially providing for extract of nutgalls, the rulings of the Department, so far as any supposed similitude between these two kinds of importations is concerned, were firmly consistent in rejecting it, and were intensified at the last by the cautionary observation which we have already quoted from the Board of General Appraisers of June 11, 1900. That they were firmly consistent against classifying as tannin or tannic acid is all that is required for this case, although they fluctuated in other directions.

This consistency of rulings continued until October 9, 1900, after, as we have said, the present importers, undoubtedly relying on the previous classifications, ordered the merchandise in question, when the Treasury addressed the letter to the collector at New York already explained, directing the assessment of 50 cents per pound. We are of the opinion, therefore, that the views which we have expressed, covering the natural and sensible reading of the statute, find reliable. support in the long-continued practical construction given similar phraseology in previous acts, and to the present statutes until October, 1900; and we may go further, and add that this practical construction has been accepted by Congress, and re-enacted into law in the tariff acts of March 3, 1883 (chapter 121, 22 Stat. 488 [U. S. Comp. St. 1901, p. 2247]), October 1, 1890 (chapter 1244, 26 Stat. 567), August 27, 1891. (chapter 349, 28 Stat. 509), and July 24, 1897 (chapter 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626]).

The tariff legislation re-enacted in the Revised Statutes conceived that there was a distinction between tannic acid as such and tannin as such. We have not been advised on what theory this distinction was made. However, the conditions at the dates involved in this appeal, as said in the decision of the Board of General Appraisers with reference to Keller's Tannin Powder, which we have cited, were such that tannin and tannic acid must be regarded as synonymous terms. The only possible question on that point which can arise in this case comes from the fact that the record speaks of liquid tannin, which we have already referred to, without clearly showing what it is. Buhl. a witness called by the United States, testified that his partnership. made tannic acid in the form of powder and also in liquid form. He added, what bears on another part of the case, that there is no difference between extract of nutgalls and the liquid tannic acid "except in name." But names, it is always conceded, are important under customs statutes; and, moreover, as was well said by a witness for the importers, tannin and tannic acid can be produced from extract of nutgalls, but extract of nutgalls cannot be produced from either tannin or tannic acid. Therefore, they are in no way convertible terms. Rau, a witness for the United States, whom we have already referred to, testified that "the word, 'tannin' as used in commerce is identical with the words 'tannic acid' as used in commerce." Therefore, all our discussion with regard

to the claimed classification with tannic acid applies also to the word "tannin" found in paragraph 1 of the act of 1897 (chapter 11, § 1, Schedule A, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626]).

Only one topic remains to be considered. The United States maintain that, under the circumstances, the findings of the Board of General Appraisers are, on matters of fact, not reviewable by us; and they cite a number of decisions which they say sustain their proposition that such findings are not to be disturbed where there is any evidence to sustain them. It is not necessary to discuss in detail the decisions cited. So far as we have examined them, they fail to support the United States on this proposition; and, while we are constantly administering this law, we have never been aware that we were bound by any such rule. Section 15 of the customs administrative act of 1890, (chapter 407, 26 Stat. 138 [U. S. Comp. St. 1901, p. 1933]) expressly provides that the Circuit Court shall review the questions of iaw and fact involved in any decision of the Board of General Appraisers with reference to which application is made to it. The rule, as now expressed by the Supreme Court, is that, where there have been decisions by two tribunals below, as to which it classifies masters in chancery and other like representatives of the courts as standing for one tribunal, the result should have especial weight on appeal; but here we have an entirely different condition-a decision of the Board of General Appraisers in favor of the United States and a decision of the Circuit Court against them.

As we have already said, we have no occasion to determine any proposition except that expressed in the final decree-that the decision. of the Board of General Appraisers assessing duty at 50 per cent. on the imports in question should be reversed. Therefore, we have no occasion to determine the proper rate of duty to be assessed; and we are not bound by any incidental expressions in reference thereto which may have occurred in this opinion. Especially we guard ourselves from any implication in connection with the protests of the importers, which, as we have said, contain a number of alternative propositions as to classification, to the effect that the United States may or may not eiect out of the same such classification as they deem most favorable, and thus finally avoid any determination herein which would bind the court as to any future importation.

The judgment of the Circuit Court is affirmed.

CHICAGO, M. & ST. P. RY. CO. v. RILEY.

(Circuit Court of Appeals, Seventh Circuit. April 10, 1906.)

No. 1,223.

1. MASTER AND SERVANT-INJURIES TO SERVANT-RAILROADS-APPLIANCESENGINEERING SCHEME.

The location of a switch stand in a railroad yard by a railroad company between two tracks, so close to one of them that the switch handle would strike the steps of passenger cars on another track, was a part of an engineering scheme in the construction of the railroad, and, in the absence

of manifest errors in construction patent to an ordinary observer, did not involve a question of negligence, to be passed on by a jury in an action for injuries to a switchman while using the switch.

[Ed. Note.-Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]

2. SAME--SAFE PLACE OF WORK-ASSUMED RISK.

A switchman in the employ of a railroad company was entitled to assume that the latter would use due care to furnish him with a reasonably safe place in which to do his work and to furnish suitable appliances in the operation of the business, and did not therefore assume the risk of the railroad company's negligence in performing such duties.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 547-555.

Assumpsit of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

3. KNOWLEDGE OF DEFECTS-FAILURE TO WARN.

Where defendant railroad company located a switch stand as a part of its prearranged plans for the construction of its yards in such a position between two track leads that under certain conditions likely to arise the handle of the switch would come in contact with the steps of passenger cars passing the stand, but such danger was neither obvious nor known to plaintiff, a switchman, who was injured by having his hand crushed be tween the switch handle and a car step, defendant was guilty of negligence in failing to warn plaintiff of the danger.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 315-316%.]

In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

The defendant in error brings this suit to recover damages for personal injuries received on or about June 1, 1904. Riley had been in the service of the Chicago, Milwaukee & St. Paul Railway Company about nine years at different places in its Western avenue switch yards, and for two months he had been foreman or conductor in charge of the switch crew, operating, among other switches, switch known as No. 3, by means of which he alleges the accident occurred. He worked from 7 in the morning until 6 o'clock in the evening, and in the discharge of his duties threw said switch very frequently. The switch stand was of the kind known as a "ground switch." Immediately preceding the accident, the handle or arm depended from the stand on the east side thereof, and hung practically perpendicularly, resting in a slot, and hugging the switch stand. To throw the switch, defendant in error stood on the east side of the switch stand, reached down and seized the handle, raised it until it stood at a right angle to the switch stand, and then pushed it horizontally towards the north, 90 degrees. When the desired switch connection is made, the handle, released from the grasp of the operator's hand, drops again into a perpendicular position at that place, and is thereby set. The switch stand is one of a series of seven stands controlling several lead tracks. The switch stands were situated between two tracks, one known as the "rip lead track" on the south, upon which, with its connecting side tracks, defendant in error was employed as foreman of a switching crew engaged in sorting and distributing freight cars to the different side tracks, and the other or northern track known as the "passenger yard lead," over which passenger trains were moved to and from the storage yard lying to the west. The switch stands were used in connection with the rip lead track and its branches, and in the sorting of said cars, defendant in error had occasion to throw some one of said switches as often as one in each 10 minutes during the day. The distance between the passenger lead and the rip lead at switch No. 1 was 7 feet 10 inches; at switch 2, 7 feet 8 inches; at No. 3 (here involved), 7 feet 9 inches; and at No. 4, 8 feet 4 inches. At the other three switches the distance was much greater, owing to the curving of the track. The center of switch stand No. 1 was 4 feet 3 inches from the nearest rail of the passenger

lead, and 3 feet 84 inches from the nearest rip lead rail. The center of switch stand No. 2 was 3 feet 1 inch from the nearest rip lead rail, and 4 feet 7 inches from that of the passenger lead. The center of switch stand No. 3 was 3 feet 9 inches from the nearest rail of the passenger lead, and 4 feet from the rip lead rail. The center of switch stand No. 4 was 4 feet 72 inches from the nearest passenger lead rail, and 3 feet 94 inches from the rip lead rail. The switch handle extended 21 inches from the center of the stand, and when raised was 14 inches above the base of the stand. This switching device had been in operation at that point for more than eight years, and no accident had theretofore occurred from its use. On the day in question, the switch engine under the charge of defendant in error and one car were upon the rip lead track at switch stand No. 1, about 30 or 40 yards distant from stand No. 3, moving to the west and toward switch stand No. 3. At the same time the coaches of the Elgin accommodation train were being backed westward and toward switch stand No. 3 on the passenger lead track. Defendant in error was desirous of setting the one car from the rip track onto side track 3. Standing on the east side of switch stand 3, he raised the switch handle, which was 1 or 2 inches in diameter, until perpendicular to the switch stand, taking hold of the end of it with his thumb and forefinger so that they extended beyond the end of the handle half a finger's length or width (plaintiff uses both terms). By the time he had moved the handle 90 degrees, or until it extended directly to the north, the Elgin train had backed up, and was passing from behind him to the westward, opposite the end of the extended switch handle. In some way, as he says, his hand was caught between the handle and one of the car steps of the Elgin train. The back of his hand, his forefinger, and his second finger were crushed. The thumb was not injured. He knew that the passenger train was approaching, but did not, he says, know that it would come near enough to the bandle end to strike it or touch his hand. There is no evidence tending to show that plaintiff in error or any of its servants knew from observation that the handle and steps of any of the cars would collide in passing. Some of the witnesses who had operated the switch had observed that the steps came very close to the handle, and had been careful to throw the switch handle, which was the act of a moment, while the body of the car between the steps was passing, to avoid the steps. Trains were passing on the passenger lead at short intervals all day long. There was a slight northward curve in the passenger lead at or near switch stand No. 3. Assuming this to be so, defendant in error says there would be a lateral swaying or side motion, tending to throw the end of the car nearer the switch. The car which caused the accident cannot be identified. After the accident, the yardmaster of plaintiff in error, Costello, caused three passenger coaches to be pulled to the switch stand in suit and stopped. The steps of the second car from the engine, when thus standing, would not clear the handle. The first car did clear. The cars used varied considerably in width, the latest patterns being the widest. By stipulation of the parties, four photographic views of the tracks and switch stands in the immediate vicinity of switch stand 3 were introduced, and are part of the record on review. In his declaration defendant in error plaintiff below, charged negligence on the part of the plaintiff in error in placing and maintaining the switch, and in failing to give notice to him that the same was too close to the passenger lead. No question is raised as to the pleadings. At the close of the evidence, plaintiff in error requested the court to direct a verdict for the defendant, which request the court refused, and exceptions were taken, which are now before this court, numbered 1 to 4, inclusive. Other exceptions were taken to the ruling of the trial court in giving and refusing instructions. Exceptions 14. 15, and 16 refer to the admission of certain evidence. There was a verdict and judgment for the plaintiff below, and the case is brought here for review.

Chas. B. Keeler, for plaintiff in error.

James C. McShane, for defendant in error.

Before GROSSCUP, BAKER, and KOHLSAAT, Circuit Judges.