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of poles before going on them as they should deem essential to their own safety in doing the work they assumed to do. The case in this respect differed from Cumberland Telephone Co. v. Bills (C. C. A.) 128 Fed. 272, where there was evidence tending to show that under the practice and usage of that company it was the duty of the foreman of linemen to test the safety of a pole before it was climbed by the linemen, and that the plaintiff in that case did not make such a test as he otherwise would because he relied upon the foreman doing his duty. We therefore held that, if the jury found that the Cumberland Telephone Company had assumed to make an independent inspection before requiring its linemen to climb any particular pole, that the neglect of that duty by the gang foreman, upon whom the company had imposed it, would be the neglect of the company, and not that of a fellow servant. But we see no reason why a lineman, in view of the peculiar character of his work, may not lawfully contract to do any inspecting or testing reasonably necessary to determine whether he can safely climb a particular pole for the purpose of adjusting, transposing, or placing new wires. His acceptance of service with knowledge of the way in which the company conducts this part of its business, whether that way be the safest way for him or not, would imply an assumption of the risks incident to that mode of carrying on its work. Linemen must, in the very nature of the occupation, be often required to work alone, or in association with another lineman, and it would seem quite impracticable and unreasonable to send one man as an inspector with another of equal fitness to test a pole before climbed by the latter. The case might be altogether different if skill of a kind not presumably required from a lineman in the usual course of his calling was necessary to apply the tests reasonably sufficient in such cases. The tests which the plaintiff's evidence shows to be customarily used are by shaking, by pushing against the pole by means of a long staff with a point at one end, and by throwing away the dirt next the surface at the base of the pole and examining by use of an axe or crowbar the soundness of the pole at that point. These tests are all simple, and quite within the range of the experience of a qualified lineman, as shown by the evidence in this case. The experience of any such lineman would advise him that the life of a pole varies with climate, soil, and character of the wood. The same experience would warn him of the danger of putting the strain incident to climbing and removing or adjusting wire upon a pole of uncertain age, for a pole may well stand under the support of wires extending from one pole to another which will not stand under the weight of a man with the tension of the wires removed. That he should be held to assume the risks incident to climbing after making such examination and tests as his own experience and judgment should indicate were necessary is not inconsistent with the fair implications arising from his acceptance of employment. This is the view indicated by the opinion of Judge Richards in Cumberland Tel. Co. v. Bills, cited above, and is supported by the cases cited by him of McIsaac v. Northampton Electric Co., 172 Mass. 89, 51 N. E. 524, 70 Am. St. Rep. 244, and McGorty v. The Southern New England Tel. Co., 69 Conn. 635, 38 Atl. 359, 61 Am. St. Rep. 62. To these we add Cumberland Tel. Co. v. Loomis, 87 Tenn. 504, 11 S. W. 356; Sias

v. Lighting Co. (Vt.) 50 Atl. 554. McGuire v. Bell Telephone Co., 167 N. Y. 208, 209, 212, 60 N. E. 433, 52 L. R. A. 437, is not in conflict. The evidence there showed an assumption of the duty of inspection, before climbing, by the company, and the opinion distinguishes the case from McIsaac v. Tel. Co., 172 Mass. 89, 51 N. E. 524, 70 Am. St. Rep. 244, upon that very ground. This is also true of W. U. Tel. Co. v. Tracy, 114 Fed. 282, 52 C. C. A. 168. The principle applicable in such cases is that by continuing in the service with knowledge of the manner in which that business is conducted the servant agrees that the dangers obviously incident to the discharge of his duties when he is expected to determine for himself the safety of a particular pole before climbing shall constitute a term of the contract of employment. This is the doctrine of assumption of risk as many times expounded by this and other courts. Narramore v. Cleveland Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68; Chesapeake & Ohio R. Co. v. Hennessey, 96 Fed. 713, 38 C. C. A. 307; Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665, 672, 18 Sup. Ct. 777, 42 L. Ed. 1188;. Gibson v. The Erie Ry. Co., 63 N. Y. 449, 20 Am. Rep. 552; Hickey v. Taafe, 105 N. Y. 26, 12 N. E. 286; Hawk v. Penn. Ry. Co. (Pa.) 11 Atl. 459; Whelton v. Ry. Co., 172 Mass. 555, 52 N. E. 1072; Richards v. Rough, 53 Mich. 212, 18 N. W. 785; Hayden v. Smithville M. Co., 29 Conn. 548; Randall v. B. & O. R. R., 109 U. S. 478, 482, 3 Sup. Ct. 322, 27 L. Ed. 1003; Tuttle v. Milwaukee Ry., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114; Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150; Felton v. Girardy, 104 Fed. 127, 43 C. C. A. 439.

3. But it is urged that the plaintiff was an inexperienced lineman, and that the defendant company knew this, and did not instruct him as to the methods of inspecting or testing a pole before climbing, and did not furnish him with the tools adapted to make tests. The learned trial judge erred, as we think, in taking this question from the jury. The extent of the experience of this plaintiff in the matter of climbing poles, new or old, was, upon his testimony, quite limited. Whether it was sufficient to constitute him a competent lineman in all branches of his work was a matter left in some doubt by the testimony of certain alleged experts as to the time necessary to make a first-class lineman. The occupation of a lineman is evidently one attended with a considerable degree of risk, and these risks are accentuated if he be put to the business of dismantling an old line of telephone poles. The dangers incident are for the most part of an obvious kind, but the best way of minimizing them by determining the reasonable safety of a given. pole for one whose duty it is to climb and detach the wires must be acquired by experience in and observation of such work, or by instruction. A qualified lineman may be presumed to know how to take care of himself. But the presumption does not hold true as to an inexperienced man. Was the plaintiff a man who had had the experience and observation needful to enable him to guard in the best way against the dangers of a decaying or weak pole under the strain of a man working among the wires at its top? If he applied for employment as a lineman, and was apparently mature and intelligent, the company might act safely upon the presumption that he was qualified for his work, and capable of exercising due care to guard against the dangers inci

dent to his duties. In such case no duty to instruct would be imposed. But where facts are brought to the notice of the master showing the disqualifications of the servant to safely encounter dangers which the employer knows he will meet, and which he has reason to believe the servant, from inexperience or other cause, does not appreciate or know how to guard against, the duty of cautioning and instructing becomes a personal duty of the master. Louisville & Nashville R. Co. v. Miller, 43 C. C. A. 436, 104 Fed. 124; Felton v. Girardy, 43 C. C. A. 439, 104 Fed. 127; Burgess v. W. U. Tel. Co. (C. C.) 108 Fed. 26. But application for or representations of qualifications for the duties of a particular place will not excuse the master from cautioning and instructing a servant whom he knows, from inexperience or otherwise, to be in fact either ignorant of dangers known to the master or ignorant of the methods of guarding himself against such unknown dangers. In L. & N. R. Co. v. Miller, cited above, we said:

"It is illogical to say that a servant impliedly assumes the hazards and risks of an occupation which are known to the master, but which the master knows are unknown to the servant, unless the dangers are so obvious that even an inexperienced person could not fail to escape them by the exercise of ordinary care."

But it was in evidence in this case that the plaintiff had been in the employment of the defendant company as a lineman for some two weeks in the spring preceding the September when he was hurt, and that he had been discharged for incompetency by the foreman under whom he was then working. He says he complained to the manager that he had not been treated right in thus discharging him, and applied for another job, and that the manager said he would inquire into the grounds of his discharge, and might return upon another day. He did return, and was told to apply for work to one Whiting. He accordingly applied to Whiting, and this is what plaintiff says occurred: "Whiting asked me if I was a lineman. I says, 'No, sir, I am not a lineman; I haven't been working at line work long enough to call myself a lineman, but I can do some work.'" Upon this he was employed as a second-class lineman. The difference between a first-class and a second-class lineman is not defined. But it appears that this first employment was as a green_hand—an apprentice learning the business. When Mr. Brennan, the manager, inquired as to why plaintiff had been discharged, he was told that it was because of his inexperience; "because we were afraid he would hurt himself or some one else." It was also in evidence that Mr. Whiting, one of the defendant company's officials of whom Mr. Brennan made inquiry, recommended his employment as an "instrument man; not as a lineman." The witness Whiting says: "I told him I thought he would do well enough if he put him inside somewhere, where he did not have so much climbing to do; that he was inexperienced for to do Columbus work." The result was that he was employed and first put on some inside work, and then to hauling cross-arms and distributing them, and then to digging holes and putting in the new poles. Two weeks before he was hurt he was changed. over to the wire gang, and put to the dangerous work of dismantling an old line of poles of their wires. He says he was told nothing whatever of the dangers incident, and nothing of how to test poles before

climbing. He saw other linemen shaking the poles before going up. and he "followed suit." He was not told about examining the base of the pole below the ground, or the use of the pike staff, or furnished with tools to make either test. Under these facts we think the court should have put to the jury the question as to whether the circumstances did not raise the duty of cautioning and instructing plaintiff before putting him into the work of transferring wires from this dangerous line of poles.

For this reason the judgment is reversed, and a new trial will be awarded.


(Circuit Court of Appeals, Second Circuit. June 2, 1904.)

No. 181


Under the mandate of a Circuit Court of Appeals directing a new trial the entry of judgment upon the pleadings without taking testimony may properly be directed by the trial court. If the pleadings present such a state of conceded facts as to entitle either party to a judgment, the action of the trial court in making proper disposition of the case, after hearing the argument, is itself a trial.


In moving for a judgment on the pleadings in a cause on trial in a federal court it is not required by section 537, Code Civ. Proc. N. Y., that a notice of motion should be given. When the cause is regularly reached for trial, the parties are sufficiently advised that the pleadings and the proofs are before the court for consideration. The notice contemplated in said section is required only when some special application is to be made for judgment on the pleadings in advance of the trial.


In construing the provision in paragraph 697. Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689], that $100 in value of articles purchased abroad by returning residents of the United States may be admitted free of duty, held that it is the passengers' duty to enter and declare the value of such articles, whether they cost more than $100 or not, and that when not so declared they are subject to forfeiture under section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873]. 4. SAME-FORFEITURE—Fraudulent Intent-SmuggLING.

In construing section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873), providing for the forfeiture of "any article subject to duty * found in the baggage of persons arriving in the United States, which was not at the time of making the entry for such baggage mentioned to the collector before whom the entry was made," held, that fraudulent intent is not an ingredient of the cause of forfeiture; also, that dutiable articles found in the handbag of a passenger after said passenger had entered other dutiable articles were subject to the enforcement of the penalties prescribed by said section.

In Error to the District Court of the United States for the Southern District of New York.

Note U. S. v. Harts (D. C.) 131 Fed. 886, herewith.

This cause comes here upon a writ of error to review a judgment of the District Court, Southern District of New York, condemning one pearl necklace, with charm studded with one ruby and diamonds, one pearl and diamond band

131 F.-54

necklace, and other articles of jewelry, the property of the claimant, a resi dent of the United States returning from abroad, which had been purchased abroad. The two pearl necklaces were presents, which had been given to her during a visit in Paris shortly before she left to return home. The facts sufficiently appear in the opinion.

W. Wickham Smith, for plaintiff in error.
Ernest E. Baldwin, for the United States.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE, Circuit Judge. This case has once before been considered by this court (111 Fed. 164, 49 C. C. A. 287, 56 L. R. A. 130), and to the opinion then rendered but little need be added. The information set forth three causes of action, of which the first was abandoned at the first trial; the second and third were based, respectively, on sections 3082 and 2802, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2014, 1873]. Upon the first trial the case was submitted to the jury under instructions which were, in substance, that if the jewelry was brought in by the claimant without any purpose of escaping the payment of duties, and not as merchandise in the guise. of baggage, she was entitled to a verdict. We held that such instruction was erroneous, and that, "if the claimant omitted to mention the jewelry to the customs officer who received her entry made before the examination of her baggage, the articles became liable to forfeiture if they were in fact dutiable." This conclusion was based upon the language of section 2802, which reads:

"Sec. 2802. Whenever any article subject to duty is found in the baggage of any person arriving within the United States, which was not, at the time of making entry for such baggage, mentioned to the collector before whom such entry was made by the person making entry, such article shall be forfeited, and the person in whose baggage it is found shall be liable to a penalty of treble the value of such article."

Commenting upon this section, we said:

"The forfeiture provision does not mean necessarily that the article is subject to forfeiture whenever it appears that it was not mentioned in the entry or the declaration. The statute does not so declare, and as a penal statute it is not to be enlarged by implication to embrace cases not within its terms. The entry and declaration by the passenger are usually made upon the vessel, and often hurriedly, and omissions may occur in the documents from inadvertence or ignorance as well as from intention. The documents are executed in the presence of the customs officer, who administers the oath to the declaration, and who is the representative of the collector in receiving the entry; and, if these omissions are brought to his notice by the passenger, it would seem to be sufficient to satisfy the statute. If at any time while the entry is being made, and before it is completed, there is a disclosure by the passenger which is sufficient to put the customs officer upon inquiry as to the dutiable character of any of the contents of the packages, we think that within the meaning of the statute it is to be deemed that the articles were 'mentioned to the collector before whom such entry was made,' notwithstanding they were not mentioned in the documents. Of course, if the articles are mentioned in the entry or declaration, they are mentioned to the collector. Section 2802 does not make the element of fraudulent intent an ingredient of the cause of forfeiture."

It was further held that the jewelry, including (as the majority held) those articles which had been purchased by others and presented to her, was dutiable. The record showed that the claimant

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