or be imprisoned not exceeding two years, or
both; and in addition to such fine such mer-
chandise shall be forfeited. These are the pen-
alties affixed to the criminal acts; the forfeiture
sought by this suit being one of them. If an
indictment had been presented against the
claimants, upon conviction the forfeiture of the
goods could have been included in the judg
ment. If the government prosecutor elects to
waive an indictment and to file a civil informa-
tion against the claimants (that is, civil in form)
can he by this device take from the proceeding
its criminal aspect and deprive the claimants of
their immunities as citizens, and extort from
them a production of their private papers, or,
as an alternative, a confession of guilt? This
cannot be. The information, though techni-
cally a civil proceeding, is in substance and ef-
fect a criminal one. As showing the close re-

cept leaving out the restriction to cases in which | ute; and it is declared that the offender shall be the court of chancery would decree a discovery, fined not exceeding $5,000, nor less than $50, it would be free from constitutional objection. But we think it has been made to appear that this result has not been attained; and that the law, though very speciously worded, is still obnoxious to the prohibition of the Fourth Amendment of the Constitution, as well as of the Fifth. It has been thought by some respectable members of the profession that the two Acts, that of 1868 and that of 1874, as being in pari materia, might be construed together so as to restrict the [633] operation of the latter to cases other than those of forfeiture; and that such a construction of the two Acts would obviate the necessity of declaring the Act of 1874 unconstitutional. But as the Act of 1874 was intended as a revisory Act on the subject of revenue frauds and prosecutions therefor, and as it expressly repeals the second section of the Act of 1867 but does not repeal the Act of 1868, and expressly excepts criminal suits and proceedings and does not ex-lation between the civil and criminal proceedcept suits for penalties and forfeitures, it would hardly be admissible to consider the Act of 1868 as having any influence over the construction of the Act of 1874. For the purposes of this discussion we must regard the fifth section of the latter Act as independent of the Act of 1868. Reverting then to the peculiar phraseology of this Act and to the information in the present case, which is founded on it, we have to deal with an Act which expressly excludes criminal proceedings from its operation, although embracing civil suits for penalties and forfeitures, and with an information not technically a criminal proceeding, and neither, therefore, within the literal terms of the Fifth Amendment to the Constitution any more than it is within the literal terms of the Fourth. Does this relieve the proceedings or the law from being obnoxious to the prohibitions of either? We think not; we think they are within the spirit of both.

[634]

ings on the same statute in such cases, we may refer to the recent case of Coffey v. U. S[ante, 684], in which we decided that an acquittal on a criminal information was a good plea in bar to a civil information for the forfeiture of goods arising upon the same acts. As, therefore, suits for penalties and forfeitures, incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, [635 ̧ within the meaning of the Fifth Amendment to the Constitution; and is the equivalent of a We have already noticed the intimate rela- search and seizure, and an unreasonable search tion between the two Amendments. They and seizure, within the meaning of the Fourth throw great light on each other. For the "un- Amendment. Though the proceeding in quesreasonable searches and seizures" condemned tion is devested of many of the aggravating inin the Fourth Amendment are almost always cidents of actual search and seizure, yet, as bemade for the purpose of compelling a man to fore said, it contains their substance and esgive evidence against himself, which in crimi- sence, and effects their substantial purpose. It nal cases is condemned in the Fifth Amendment; may be that it is the obnoxious thing in its mildand compelling a man "in a criminal case to be est and least repulsive form; but illegitimate a witness against himself," which is condemned and unconstitutional practices get their first in the Fifth Amendment, throws light on the footing in that way, namely: by silent apquestion as to what is an unreasonable search proaches and slight deviations from legal modes and seizure" within the meaning of the Fourth of procedure. This can only be obviated by Amendment. And we have been unable to per- adhering to the rule that constitutional provisceive that the seizure of a man's private books ions for the security of person and property and papers to be used in evidence against him should be liberally construed. A close and litis substantially different from compelling him eral construction deprives them of half their efto be a witness against himself. We think it is ficacy and leads to gradual depreciation of the within the clear intent and meaning of those right, as if it consisted more in sound than in terms. We are also clearly of opinion that pro- substance. It is the duty of courts to be watchceedings instituted for the purpose of declaring ful for the constitutional rights of the citizen, the forfeiture of a man's property by reason of and against any stealthy encroachments thereoffenses committed by him, though they may on. Their motto should be obsta principiis. be civil in form, are in their nature criminal. We have no doubt that the legislative body is In this very case, the ground of forfeiture as actuated by the same motives; but the vast acdeclared in the twelfth section of the Act of cumulation of public business brought before it 1874, on which the information is based, con- sometimes prevents it, on a first presentation, sists of certain acts of fraud committed against from noticing objections which become develthe public revenue in relation to imported mer-oped by time and the practical application of chandise, which are made criminal by the stat- the objectionable law.

[636]

[637]

There have been several decisions in the cir- ing used against him in any prosecution for a
cuit and district courts sustaining the constitu- crime, penalty or forfeiture. Judgment being
tionality of the law under consideration, as well rendered for the defendant, the case was car-
as the prior laws of 1863 and 1867. The prin- ried to the circuit court by writ of error; and
cipal of these are Stockicell v. U. S. 3 Cliff. 284; in that court Mr. Justice Hunt held that the Act
I Platt and Boyd, 7 Benedict, 261; U. S. v. of 1868 referred only to personal testimony or
Hughes, 12 Blatchf. 553; U. S. v. Mason, 6 Biss. discovery obtained from a party or witness, and
350; U. S. v. Three Tons of Coal, Id. 379; U. S. not to books or papers wrested from him; and
v. Distillery No. 28, Id. 483. The first and lead- as to the constitutionality of the law, he mere-
ing case was that of Stockwell v. U. S. decidedly referred to the Case of Stockwell, and the
by Mr. Justice Clifford and Judge Shepley, the judgment of the district court was reversed. In
law under discussion being that of 1867. Jus- view of what has been already said, we think it
tice Clifford delivered the opinion and relied unnecessary to make any special observations
principally upon the collection statutes, which on this decision. In U. S. v. Mason, Judge Blod-
authorized the seizure of goods liable to duty, gett took the distinction that in proceedings in
as being a contemporaneous exposition of the rem for a forfeiture, the parties are not required
Amendments, and as furnishing precedents of by a proceeding under the Act of 1874 to testi-
laws analogous to that complained of. As we fy or furnish evidence against themselves, be-
have already considered the bearing of these cause the suit is not against them but against
laws on the subject of discussion, it is unneces- the property. But where the owner of the
sary to say anything more in relation to them. property has been admitted as a claimant, we
The learned justice seemed to think that the cannot see the force of this distinction; nor can
power to institute such searches and seizures as we assent to the proposition that the proceeding
the Act of 1867 authorized, was necessary to is not, in effect, a proceeding against the owner
the efficient collection of the revenue, and that of the property, as well as against the goods;
no greater objection can be taken to a warrant for it is his breach of the laws which has to be
to search for books, invoices, and other papers proved to establish the forfeiture, and it is his
appertaining to an illegal importation than to property which is sought to be forfeited; and
one authorizing a search for the imported goods; to require such an owner to produce his private
and he concluded that, guarded as the new pro- books and papers, in order to prove his breach
vision is, it is scarcely possible that the citizen of the laws, and thus to establish the forfeiture
can have any just ground of complaint. It of his property is surely compelling him to fur-
seems to us that these considerations fail to meet nish evidence against himself. In the words
the most serious objections to the validity of of a great judge: “Goods, as goods, cannot of-
the law. The other cases followed that of Stockfend, forfeit, unlade, pay duties or the like, but
well v. U. S. as a precedent, with more or less men whose goods they are."
independent discussion of the subject. The
case of Platt and Boyd, decided in the District
Court for the Southern District of New York,
was also under the Act of 1867, and the opin-
ion in that case is quite an elaborate one; but,
of course, the previous decision of the circuit
court in the Stockwell Case had a governing in-
fluence on the district court. The other cases
referred to were under the fifth section of the
Act of 1874. The case of U. S. v. Hughes came
up, first, before Judge Blatchford in the district
court in 1875, 8 Ben. 29. It was an action of
debt to recover a penalty under the Customs
Act, and the judge held that the fifth section
of the Act of 1874, in its application to suits
for penalties incurred before the passage of the
Act, was an ex post facto law, and therefore, as
to them, was unconstitutional and void; but he
granted an order pro forma to produce the books
and papers required, in order that the objection
might come up on the offer to give them in evi-
dence. They were produced in obedience to
the order, and offered in evidence by the dis-
trict attorney, but were not admitted. The dis-
trict attorney then served upon one of the de-
fendants a subpoena duces tecum, requiring him
to produce the books and papers; and this be-
ing declined, he moved for an order to compel
him to produce them; but the court refused to
make such order. The books and papers re-
ferred to had been seized under the Act of 1867,
but were returned to the defendants under a
stipulation to produce them on the trial. The de-
fendants relied not only on the unconstitution-
ality of the laws, but on the Act of 1868, before
referred to, which prohibited evidence obtained
from a party by a judicial proceeding from be-

The only remaining case decided in the
United States courts to which we shall advert [638]
is that of U. S. v. Distillery No. 28. In that
case Judge Gresham adds to the view of Judge
Blodgett, in U. S. v. Mason, the further sug-
gestion that as in a proceeding in rem the owner
is not a party, he might be compelled by a
subpoena duces tecum to produce his books and
papers like any other witness; and that the
warrant or notice for search and seizure, under
the Act of 1874, does nothing more.
But we
cannot say that we are any better satisfied with
this supposed solution of the difficulty. The
assumption that the owner may be cited as a
witness in a proceeding to forfeit his property
seems to us gratuitous. It begs the question at
issue. A witness, as well as a party, is pro-
tected by the law from being compelled to give
evidence that tends to criminate him, or to sub-
ject his property to forfeiture. Queen v.
Newel, Parker, 269; 1 Greenl. Ev. §§ 451-453.
But, as before said, although the owner of
goods, sought to be forfeited by a proceeding
in rem, is not the nominal party, he is never-
theless the substantial party to the suit; he
certainly is so, after making claim and defense;
and in a case like the present he is entitled to
all the privileges which appertain to a person
who is prosecuted for a forfeiture of his prop-
erty by reason of committing a criminal of
fense.

We find nothing in the decfsions to change
our views in relation to the principal question
at issue.

159, 172, approved by Ch. Baron Parker in Mitchell
*Vaughan, C. J., in Shepherd v. Gosnold, Vaugh.
v. Torup, Parker, 227, 236.

We think that the notice to produce the invoice in this case, the order by virtue of which it was issued, and the law which authorized the order, were unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings.

We are of opinion, therefore, that the judgment of the Circuit Court should be reversed, and the cause remanded, with directions to award a new trial; and it is so ordered.

Separate opinion by Mr. Justice Miller:

I concur in the judgment of the court, reversing that of the Circuit Court, and in so much of the opinion of this court as holds the [639] fifth section of the Act of 1874 void as applicable to the present case.

I am of opinion that this is a criminal case within the meaning of that clause of the Fifth Amendment to the Constitution of the United States which declares that no person "shall be compelled in any criminal case to be a witness against himself."

served formally on the defendant or claimant,
by the United States Marshal, by delivering to
him a certified copy thereof, or otherwise serv-
ing the same as original notice of suit in the
same court is served; and if the defendant or
claimant shall fail or refuse to produce such
book, invoice or paper in obedience to such
notice, the allegations stated in the said motion
shall be taken as confessed, unless his failure
or refusal to produce the same shall be ex-
plained to the satisfaction of the court. And
if produced, the said attorney shall be permit-
ted, under the direction of the court, to make
examination (at which examination the defend-
ant or claimant, or his agent, may be present)
of such entries in said book, invoice or paper
as relate to or tend to prove the allegation afore-
said, and may offer the same in evidence on
behalf of the United States. But the owner
of said books and papers, his agent or attorney,
shall have, subject to the order of the court,
the custody of them, except pending their ex-
amination in court as aforesaid." 18 Stat. at
L. 187.

Nothing in the nature of a search is here
hinted at. Nor is there any seizure, because
And I am quite satisfied that the effect of the the party is not required at any time to part
Act of Congress is to compel the party on with the custody of the papers. They are to
whom the order of the court is served to be a be produced in court and when produced the
witness against himself. The order of the United States Attorney is permitted, under the
court under the statute is in effect a subpæna direction of the court, to make examination in
duces tecum; and though the penalty for the presence of the claimant, and may offer in evi-
witness' failure to appear in court with the dence such entries in the books, invoices or
criminating papers is not fine and imprison-papers as relate to the issue. The Act is care-
ment, it is one which may be made more severe, ful to say that "the owner of said books and
namely: to have charges against him of a crim-papers, his agent or attorney shall have, subject
inal nature taken for confessed and made the to the order of the court, the custody of them,
foundation of the judgment of the court. except pending their examination in court as
That this is within the protection which the aforesaid.'
Constitution intended against compelling a
person to be a witness against himself, is, I
think, quite clear.

But this being so, there is no reason why this court should assume that the action of the court below, in requiring a party to produce certain papers as evidence on the trial, authorizes an unreasonable search or seizure of the house, papers or effects of that party.

There is in fact no search and no seizure authorized by the statute. No order can be made by the court under it which requires or permits anything more than service of notice on a party to the suit. That there may be no mistake as to the effect of the statute and the power to be exercised under it, I give the section here verbatim:

Sec. 5. That in all suits and proceedings other than criminal arising under any of the revenue laws of the United States, the attorney representing the government, whenever, in his belief, any business book, invoice or paper, belonging to or under the control of the defendant or claimant, will tend to prove any allegation made by the United States, may make a written motion, particularly describing such book, invoice or paper, and setting forth the allegation which he expects to prove; and thereupon the court in which suit or proceed[640] ing is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice or paper, in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be

The Fourth Amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized."

The things here forbidden are two: search [641] and seizure. And not all searches or all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed; and if the thing sought be found, it may be seized.

But what search does this statute authorize? If the mere service of a notice to produce a paper to be used as evidence, which the party can obey or not as he chooses is a search, then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the Constitution was made. The searches meant by the Constitution were such as led to seizure when the search was successful. But the statute in this case uses language carefully framed to forbid any seizure under it, as I have already pointed out.

While the framers of the Constitution had their attention drawn, no doubt, to the abuses of this power of searching private houses and seizing private papers, as practiced in England, it is obvious that they only intended to restrain the abuse, while they did not abolish the power. Hence it is only unreasonable searches and seiz

[642]

ures that are forbidden, and the means of secur-
ing this protection was by abolishing searches
under warrants, which were called general
warrants, because they authorized searches in
any place, for anything.

This was forbidden, while searches founded
on affidavits, and made under warrants which
described the thing to be searched for, the per-
son and place to be searched, are still permit-
ted.

I cannot conceive how a statute aptly framed to require the production of evidence in a suit by mere service of notice on the party, who has that evidence in his possession, can be held to authorize an unreasonable search or seizure, when no seizure is authorized or permitted by the statute.

I am requested to say that the Chief Justice concurs in this opinion.

Messrs. George Gray and W. P. Clough, for plaintiff in error:

The examination of Weaver having conclusively proven the absence of any actual bias from his mind, and his business relations with the Company not furnishing any ground upon which bias could be implied, it follows that he stood proven to be a competent and lawful juror, summoned upon the venire and drawn upon the panel, in strict accordance with territorial laws; and hence, that the court erred in excluding him from the panel, against the objection of the defendant and merely because asked to do so by the plaintiff.

But it is said that such errors do not form grounds for reversal: because 1, a party is only entitled to an unbiased and a disinterested jury, in any case; and 2, if a reversal were to follow, the erroneously excluded juror would not be drawn upon the second jury. Ap plying these arguments to the case in hand it is said that, notwithstanding Weaver's exclusion, a fair jury was actually impaneled; and that COM-even if a new trial should be granted, Weaver could not be made one of the jurors to sit in it.

True copy. Test:
James H. McKenney, Clerk, Sup. Court, U. S.

NORTHERN PACIFIC RAILROAD
PANY, Piff. in Err.,

V.

CLAYTON D. HERBERT.

(See S. C. Reporter's ed. 642-660.)
Practice-allowance of challenge to juror-con-
dition of refusing new trial, remitting por-
tion of verdict, is discretionary-master's duty
as to coservants-duty as to machinery-con-
tributory negligence-Dakota Code.

1. A trial by an impartial jury being all that a
party can demand, the allowance of a challenge for
cause, even if the cause was insufficient, is no
ground of complaint where a competent and unbi-
ased jury was finally selected.

2. It is for the party asserting error to show it. Where a party was entitled to peremptory challenge it will not be assumed that a juror was rejected on a challenge for cause.

3. The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the damages awarded him by the verdict of the jury, is within the discretion of the trial court.

4. Where fellow servants are engaged in a com-
mon employment, each, in undertaking the service,
assumes the risk that the others may fail in that
care and vigilance which are essential to his safety.
5 It is the duty of the employer to select and re-
tain servants who are fitted and competent for the
service, and to furnish sufficient and safe materials,
machinery or other means by which it is to be per-
formed, and to keep them in repair and order. No

duty required of him for the safety and protection
of his servants can be transferred so as to exoner-
ate him from liability. This rule is not changed by
the Dakota Code.

From the standpoint of those who assert the power of the trial judge to reject a juror without legal reason for so doing, the matter is incapable of different statement; and the jury can be made up by the judge himself, selecting from the venire twelve men who are willing to swear themselves capable of deciding according to law and evidence; as what average man will not?

It would be sufficient for refuting the arguments of our opponents, under this head, to show that as a matter of fact a fair and unbiased jury was not impaneled to try the cause.

The record shows that at least three jurors were put upon the panel, over the Company's challenge for bias, whose examination showed them very clearly to have previously formed opinions, and at the time of the trial to have re tions necessarily involved in the controversy. tained positive opinions upon one or more ques

But what is perfectly conclusive as to the that the trial court itself so distinctly decided, prejudiced character of this jury as a body is when the issue was specifically presented to it. The verdict rendered against the Company was $25,000.

The Company moved to set it aside, upon the ground among others, that the damages were excessive, resulting from passion or prejudice on the part of the jury.

The amount of the verdict could not be put upon any other ground.

6. The liability of the employer is the same
whether he totally fails to provide persons to per-
The trial judge decided with the Company
form a duty he owes to his servant, or provides per-upon this issue, and directed a new trial, unless
sons who are incompetent and unskillful.

7. The rule of law as to contributory negligence
applied to the facts of the present case.
[No. 87.]

Argued Dec. 4, 8, 9, 1885. Decided Feb. 1, 1886.

verdict with which this alleged "competent" the plaintiff should remit 60 per centum of the jury had presented him.

The court necessarily found the jury which sat in the case to have been passionate or prej

IN ERROR to the Supreme Court of the Ter-udiced, the court permitted the verdict to stand,

ritory of Dakota.

The case is stated by the court.

NOTE.-Master and servant; injuries to servant from negligence of coservant; who are coservants. For a full discussion, see Hough v. Tex. P. R. R. Co., 100 U. S., bk. 25, 612, note. As to the general rule, see Randall v. B. & O. R. R. Co., 109 U. S., bk.27, 1003, 1005, many authorities cited.

and yet

in part. By so finding, the court also, by necessary implication, found that the issues in the case had not been tried by such a jury as the law contemplates, and yet denied the Company the right to have those issues passed upon by a fair and lawful jury.

The questions raised and litigated in thecourts

below in this suit are, to all intents and purposes, identical with those since settled by this court in the following cases:

Strauder v. West Va., and Ex parte Va. 100 U. S. 303, 349 (Bk. 25, L. ed. 664, 680); Neal v. Del. 103 U. S. 370 (Bk. 26, L. ed. 567).

Among the points necessarily adjudicated in those cases were: first, that the rights of suitors in the composition of juries are not limited to the negative one that the biased and interested shall be excluded, but embrace an affirmative one extending even to the race and color of those who may be admitted; or, in other words, that those rights extend to who shall be suffered to go on to the jury as well as to who shall be put off from it; and second, that the erroneous exclusion from the jury box of those who should have been admitted forms a ground for reversal.

tained injuries by the negligence of a fellow servant intrusted with the duty of keeping machinery in order, been compelled to admit that the employé who selects machinery and keeps it in repair and the one who uses it are fellow workmen.

Laning v.N. Y. C. R. R. Co. 49 N. Y. 521. By force of Section 6 of the Civil Code, the common law upon the subject of the liabilities of masters to their servants has been superseded in Dakota Territory, and the whole law upon that subject is to be found in sections 11291131. If any rule of the common law has not been embodied in these sections, it must be deemed to have been purposely omitted therefrom and to have been expurgated from the jurisprudence of the Territory.

It will be observed that while section 1130 embodies the general rule of the common law, it is silent regarding that exception making the master liable when the subject of the neglect by one servant is the condition of machinery to be

The trial court erred in denying defendant's motion to dismiss the suit upon the ground that the plaintiff had failed to establish any cause of action against the defendant; and also in re-used by another. fusing the several requests of the defendant that the jury be instructed to find in its favor.

The evidence failed to disclose any omission by the Company to do what it had undertaken to do by its contract of hiring.

The evidence conclusively showed the omission, on Herbert's own part, to do what the circumstances required for self protection.

The evidence further conclusively showed that if Herbert's injuries are attributable to omissions of others than himself, such others were persons employed by the same master in the same general business.

It is, however, of high importance to observe that one of the two or three exceptions from the common-law rule has been incorporated with this section of the Civil Code.

Side by side with the exception relating to machinery, the courts have ranked another one, to the effect that the general rule shall not apply unless there has been exercised due care in the selection of the guilty servant.

This exception the Legislature has thought it wise to retain. Its retention proves that the Legislature had specifically under view the subject of the common-law exceptions to the gen The accident is not attributable to any omis-eral rule, and decided to retain this one only. sion by the Company, because:

Even if the exception to the general rule, in (a) The rule of law, making an employer re-grafted thereon by the common law, existed in sponsible to an employé using machinery for Dakota Territory, that exception could not ap the care of another employé charged with the ply to Herbert's case. duty of keeping such machinery in order, is not in force in Dakota Territory.

(b) Even if such a rule were in force there, it would not be applicable to such an employment as Herbert's.

There is no resemblance between the case of putting into the hands of train men a train of cars ready to start out upon its run, or even placing cars in the hands of yard men, to be made up into a train for starting upon its run, and that of placing in the hands of the latter a train of cars, which has just arrived at a ter minal yard, as its ultimate destination, for dis

That the liability of a master to one servant, for negligence of another, in respect to keeping machinery in order, is nothing more than an exception to the general rule governing the re-tribution. sponsibility of the master, has been decided by this court.

Hough v. R. R. Co. 100 U. S. 213 (Bk. 25, L.ed. 612). See Besel v. N. Y. C. & H. R. R. R. Co.70 N. Y. 171: King v. Boston etc. R. R. Corp. 9 Cush. 112; Gillshannon v. 8. B. R. R. Corp. 10 Cush. 228; Seaver v. Boston, etc. R. R. 14 Gray, 466; Gilman v. Eastern R. R. Corp. 10 Allen, 233; 13 Allen, 433; Holden v. Fitchburg R.R. Co. 129 Mass. 268; Walker v. Boston etc. R. R. 128 Mass. 8.

In each and every one of these cases this state of facts existed: a servant charged exclusively with the duty of keeping machinery in repair was hurt by the negligence of another servant charged exclusively with the duty of using the same machinery, or vice versa; for, tracks, bridges and switches are, in respect to the responsibility of the master, to be viewed in the same light as cars or locomotives.

The courts of these States have, in their opinions in cases recognizing and enforcing the liability of the master to a servant who has sus

The cars in this train had not been put into Herbert's hands as fit to do service upon the road. On the contrary, they were turned over to him that they might be placed for unloading, so that the requisite repairs could be ascer tained and executed.

The following cases are decisive upon th point: Yeaton v. Boston, etc. R. R. Corp. 1: Mass. 418; Gibson v. N. C. R. Co. 22 Hun, 28 McCosker v. L. 1. R. R. Co. 84 N. Y. 77; Fla agan v. Chicago, etc. R. R. Co. 45 Wis. 98; Fla nagan v. Chicago, etc. R. R. Co. 50 Wis. 462 Brick v. Rochester R. R. Co. 98 N. Y. 211.

The accident resulted from Herbert's own carelessness. The evidence showed conclu sively that Herbert knew the train to have just arrived in the yard, after having encountered the perils and endured the wear and tear of the road. It did not appear from the evidence, that the Company had specially provided any serv ant whose exclusive duty it should be to look after the safety of the other workmen in the