safe condition. The information he had received from the conductor, taken together with the exigencies of the occasion, were sufficient to relieve the plaintiff from the charge of contributory negligence, as the court very properly held in that case.

In the case of Kane v. Railroad Co., supra, among other things, it was said:

"But it is said that the efficient, proximate cause of the injury to the plaintiff was his use of the defective appliances at the end of the car from which he fell, when he knew, and, at the moment of letting himself down from that car should not have forgotten, as he said he did, that one of its steps was missing. It is undoubtedly the law that the employé is guilty of contributory negligence, which will defeat his right to recover for injuries sustained in the course of his employment, where such injuries substantially resulted from dangers so obvious and threatening that a reasonably prudent man, under similar circumstances, would have avoided them if in his power to do so. He will be deemed. in such case, to have assumed the risks involved in such heedless exposure of himself to danger. Hough v. R. R. Co. [100 U. S. 224, 25 L. Ed. 612], Dist. of Columbia v. McElligott [117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946], and Goodlett v. Louisville & Nash. R. R. Co. [122 U. S. 391, 7 Sup. Ct. 1254, 30 L. Ed. 12301, above cited; Northern Pac. R. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755."

In submitting the instruction hereinbefore referred to, the court failed to explain to the jury that the rule in regard to contributory negligence was different from the one which pertains to assumption of risk. These two defenses being essentially different, and not depending upon the same principles of law, the granting of this instruction. was calculated to confuse the minds of the jury in determining the issues submitted for their consideration. In the case at bar the injuries sustained resulted from dangers that were so open, patent, and obvious that a reasonably prudent man, situated as the injured person was on that occasion, could have avoided the same if he had exercised ordinary care and caution. Therefore the rule announced in the Kane Case, supra, and relied upon as controlling in this case, does not apply. Even if the brake had been defective, as contended by counsel for defendant in error, it is shown by the evidence that if he had stood on the running board, or near thereto, that he could have avoided all danger; but in utter disregard of dangers that were well known to him, for some unknown reason, he took a position on the car which necessarily brought him in contact with the eaves of the house, and was thereby injured. Under the circumstances it cannot be contended that his injury was in any wise due to the negligence of the plaintiff in error.

It is insisted by defendant in error that the brakes failed to work at the time he was injured. This is not evidence that the same were defective. It is true that the master is required to furnish his employés with reasonably safe appliances with which to work, and to use ordinary care in keeping the same in repair; but the rule does not go to the extent of constituting the master an insurer. If the master negligently fails to perform his duty towards his servants in providing them with reasonably safe appliances with which to work, or fails to inspect such appliances, and injury results therefrom, then he can be held liable for injuries which may be received by his servants by reason of such failure. In an action like the one at bar, the burden

is on the plaintiff to show one or the other of these facts. He must either show by competent evidence that the master was negligent in furnishing the appliances or machinery, or that he did not exercise ordinary care in repairing and inspecting the same. These facts must affirmatively appear in order to entitle the plaintiff to recover.

"The mere fact of the accident is not enough to establish negligence. There must be additional and affirmative proof of the particular negligence which caused the accident, and it must also appear that the master had opportunity of previous knowledge." 1 Bail. Mas. & Servt. § 406.

"The presumption is that the master has done his duty by furnishing safe and suitable appliances, and, when this is overcome by positive proof that the appliances were defective, the plaintiff is met by the further presumption that the master had no notice of the defect, and was not negligently ignorant of it. It is not sufficient to show that the plaintiff was injured, and that the injury resulted from a defect in the machinery; but it must go further and establish the fact that the injury happened because the master did not exercise proper care in the premises. 1 Bail. Per. Inj. Mas. & Servt. § 365.

The evidence in this case fails to show that the master was negligent in any respect. It was shown by the defendant in error that he undertook to operate the brake, but that it would not hold. Further on in his cross-examination he said, "I wound the chain up tight," which shows that the chain was not broken. Even if in attempting to set the brakes he had broken the chain, this of itself would not have constituted negligence on the part of the master. However, the uncontradicted evidence of the conductor and brakeman is to the effect that immediately after the accident the brake was found in perfect order. Under these circumstances, we do not think that there was sufficient evidence as to the negligence of the defendant company to warrant the submission of the case to the jury.

In the case of Edgens v. Mfg. Co., 69 S. C. 529, 48 S. E. 538, the court, said:

"The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence. * It is not sufficient for the employé to show that the employer may have been guilty of negligence. The evidence must point to the fact that he was."

The learned judge who tried the case below was evidently impressed with the fact that there was not sufficient legal evidence to entitle the plaintiff to recover, and, in discussing this phase of the question, said: "I am doubtful if the plaintiff has the right to recover in this case. I am inclined to think that this injury was the result of his own negligence; but I think there is a question for the jury, and I will let it go to the jury."

While there are a number of exceptions to the charge of the court, at the same time, we do not deem it necessary to consider the same, feeling, as we do, that there is not sufficient legal evidence from which the jury could infer that the injury sustained was the result of the negligence of the defendant in error.

For the reasons herein stated, the judgment of the Circuit Court is

reversed, and the case remanded to that court, with instructions to set aside the verdict, award a new trial, and to proceed thereafter in accordance with the views herein expressed.

UNITED STATES v. LARKIN.

(Circuit Court of Appeals, Sixth Circuit. April 5, 1907.)

No. 1,595.

1 CUSTOMS DUTIES-PROCEEDING FOR FORFEITURE OF SMUGGLED GOODS-JURISDICTION.

Jurisdiction of a proceeding for the forfeiture of smuggled goods exists only in the district of seizure, which is the district in which the goods, if on land, are found; a collector cannot, by carrying them into another district and there making the formal seizure, confer jurisdiction of the proceeding on the court in such district.

2. PLEADING-NEGATIVE PREGNANT.

Pleas which are evasive or double are bad, and a negative pregnant is not a good plea for any purpose.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 202205, 261-263.]

Appeal from the District Court of the United States for the Northern District of Ohio.

This is a proceeding to declare the forfeiture of certain valuable jewelry alleged to have been fraudulently smuggled into the United States, through the port of New York, on June 10, 1902, by one Cassie L. Chadwick. The information contains the usual and requisite averments touching the intentional and fraudulent importation with intent to cheat and defraud the revenue of the United States, and then avers that the property so smuggled had been seized by Charles F. Leach, collector of the Northern District of Ohio, within said district, on May 19, 1905. Adrian H. Larkin, being interested as a claimant, came in and entered his appearance for the sole purpose of denying the jurisdiction of the court below to entertain jurisdiction of any proceeding for the forfeiture of said property. To this plea a demurrer was filed which, upon argument, was overruled. A reply to the plea was then filed, and to this reply the claimant demurred. This demurrer was sustained. The government declined to amend or further plead. The court sustained the plea, and dismissed the information. From this judgment, the United States have appealed, and assigned error.

John J. Sullivan, for the United States.
A. C. Dustin, for defendant.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge (after stating the case). The articles against which this forfeiture proceeding was begun were illegally imported through the port of New York. Subsequently, they were found in the city of New York and in the possession of the claimant as bailee. These jewels had been pledged by the owner and importer, Mrs. Cassie L. Chadwick, to one J. W. Friend, and Friend placed them in the custody of Adrian H. Larkin, as bailee and attorney. Friend, learning that a claim had been made that same had been illegally and surreptitiously imported through the port of New York by the pledgor, visited the Secretary of the Treasury and made disclosure of his

153 F.-8

possession of same and his rights, and, as averred by the plea, made an agreement with the Secretary that same should be kept in the city of New York, open to the inspection and examination of any official of the department. Friend, not being himself a resident of New York, placed them in the custody of the claimant, with authority to conduct any transactions with the Treasury Department growing out of the claim that same may have been fraudulently imported. At the request of the department, Mr. Leach, collector of the port of Cleveland, went to New York for the purpose of examining the jewelry and determining by inspection whether same had been illegally imported, and whether it was subject to seizure and forfeiture. He accordingly applied to Larkin to be allowed an inspection, and this was permitted. The plea then states that Leach "informed said Larkin that certain of said jewelry had not been wrongfully imported, and that he did not care to make further examination thereof, but that certain of said pieces he was in doubt about, and would like to exhibit them to a person, located in New York City, who was expert in such matters, for his opinion, and asked permission to take said jewelry away from the office of said Larkin for that purpose, he promising and agreeing to return said property to said Larkin, at his office in New York City, on the afternoon of that same day. Thereupon, said Larkin, relying upon said promise and agreement of said Leach, delivered said property into his possession and custody, receiving from said Leach a receipt therefor in writing, a true copy of which is hereto attached and marked "Exhibit A," and made a part hereof.

The receipt referred to is in these words:

"New York, March 14, 1905.

"Received of A. H. Larkin, attorney for J. W. Friend, the following pieces of jewelry, for examination and identification:

"1 Marquise (single stone) diamond ring.

"1 ruby and diamond ring.

"1 diamond ring, about three karats, off color diamond.

"1 ring set with two cabochin rubies and sixteen diamonds.

"2 earrings set with two karat diamond and small pear-shaped diamond pendants.

"1 Marquise (canary) diamond ring.

"1 ring set with diamonds in shape of shield.

"2 empty settings.

"1 ring set with diamond in shape of shield.

"1 ring set with two five-karat diamonds, twelve diamonds in shank.

"1 six-karat diamond (white) ring.

"1 seven-stone pearl ring.

"2 opal stick pins.

"1 chatelaine watch.

"1 brooch (one oval opal) surrounded by eight diamonds and small spr. rubies.

"1 card case set with jewels.

"[Signed]

Chas. F. Leach, Collector of Customs."

It is then averred that said Leach, in violation of his agreement, carried same to Cleveland. That from there he returned certain pieces of the lot to Larkin, as not subject to seizure, and seized the remainder at Cleveland, as having been illegally imported, and then caused this proceeding to be instituted in the District Court for the Northern District of Ohio. To this plea the district attorney replied. So far

as this relates to the promise or agreement under which the collector received the property here involved, it is in these words:

"That after an examination of the jewelry aforementioned, the said collector informed the said Adrian II. Larkin that he was in doubt as to which specific articles of jewelry and merchandise were unlawfully imported, and that it would be necessary for him to take such articles as to which he was in doubt and further examine them as to whether or not they had been unlawfully imported; and thereupon the said Charles F. Leach received into his care certain of the said articles of jewelry and merchandise, and gave to the said Adrian H. Larkin a receipt for the same, a copy of which is set forth in the plea to the jurisdiction herein filed."

"Plaintiff further says, that it denies that the said Charles F. Leach, collector as aforesaid, promised to the said Adrian H. Larkin that he would immediately return the said articles of jewelry and merchandise which he thus received into his care, and plaintiff further denies that he took said jewelry into his care merely to submit it to an expert in New York for valuation, or that be said to said Larkin, or any other person, that such was his purpose or intention. But plaintiff says that only in the city of Cleveland, Ohio, could the said collector of customs, Charles F. Leach, ascertain which of said articles were unlawfully imported, and that, with consent of the said J. W. Friend, the said Charles F. Leach brought the said articles of jewelry and merchandise to Cleveland, and that he there made a careful investigation and ascertained that certain of the said articles of jewelry and merchandise which he had thus brought from New York were not unlawfully imported, and these articles of jewelry and merchandise he forthwith returned to the said J. H. Larkin, at New York; the remaining articles of jewelry and merchandise that is to say, those mentioned in the information herein filed-he ascertained were unlawfully imported, and thereupon-that is to say, on the 19th day of May, 1905, in Cleveland, Ohio-he did seize the said articles of jewelry and merchandise mentioned in the said information, and did claim title in the same for the plaintiff, the said United States."

The reply is ambiguous. The averment is that he promised to return the jewelry to the claimant upon the "afternoon" of the day he received it. The reply is a denial that he promised to "immediately return the said articles." It is that form of pleading which is styled a "negative pregnant," an admission that he received same under a promise to return same and a tender of an issue as to whether his promise was to return same immediately. The averment was that he received the jewelry under a statement that he wished to submit same to an expert in the city. The reply is that he did not take it into his custody "merely to submit to an expert in New York for valuation." The question is not whether he entertained a purpose not expressed, but whether he did not promise to return same when he had carried out the purpose for which he had requested possession. The reply is evasive and does not deny the substantial averments of the plea. "The law refuseth double pleading," said Lord Hobart, in Slade v. Drake, Hob. 295, “and negative pregnants, though they be true, because they do inveigle and do not settle judgment upon one point." Stephen on Pleading (Heard's) *381, 382. We quite agree with the court below that under the circumstances of this case, these jewels were not subject to seizure in Cleveland, but should have been seized in the district of New York. The articles were found in the latter district and should have been there seized.

Section 3072, Rev. St. [U. S. Comp. St. 1901, p. 2011], is supposed to confer general authority upon every collector to make seizures of property both within and without his district, if he has ground for