ordinary or reasonable care must apply. He cannot be required to act until he knows or in the exercise of reasonable care ought to know of the requirement.

For the purpose of determining the question whether this case should have been taken from the jury because of contributory negligence of the deceased, we must treat the evidence most favorably to plaintiff and must therefore assume under the proof that neither red nor green colored light was displayed on the switch stand; but, on the contrary, that no light of any kind appeared there.

The engineer clearly was not required to slow down the train until he ascertained, or, in the exercise of reasonable care, could have ascertained, that no light was displayed on the switch stand. On the question whether the proof so conclusively established the engineer's. want of care in failing to ascertain that fact as to prevent recovery because of his contributory negligence, I differ radically from the view entertained by the majority. I do not think it so clearly appears that the engineer in the exercise of due care could have discovered the want of a light on the switch stand in time to slow down the train before it reached the switch and was derailed that all reasonable men in the exercise of an honest and impartial judgment would say so. That is the test as frequently declared by us. On the contrary, I think the facts and circumstances surrounding the engineer and the running of his train at the time in question were such as left that issue fairly debatable and rendered it particularly appropriate for the consideration of a jury. The engineer, by reason of running on a curve at the time, was not brought into a line of vision of the switch stand until he came within twelve hundred feet of it. He was running on a special order requiring him to make the unusual speed of 50 to 60 miles per hour. The night was dark, windy, and foggy. The engine had run a long distance. The windows through which he had to look were presumably affected by smoke and fog. The engineer, as he approached the switch stand, had duties to discharge in running his train which required diversified attention. The discovery of the negative fact that no light was displayed was not easy, and in itself would reasonably have taken some time.

These and other facts like them, together with the reasonable inferences deducible from them, were, in my opinion, sufficient to require the submission of the issue of contributory negligence to the jury. They were not so essentially different from those involved in the Bishard Case referred to in the foregoing opinion as to require. the radically different treatment which the majority gives them. In my opinion there was less evidence of contributory negligence in this case than in that. As no other reversible error is claimed to be disclosed by the record, I think the judgment should be affirmed.

BURDITT & WILLIAMS CO. v. UNITED STATES.

(Circuit Court of Appeals, First Circuit. April 9, 1907.

No. 678.

1. CUSTOMS DUTIES-CONSTRUCTION OF STATUTE-DOUBLE DUTIES.

The schedules of the tariff acts of 1890 and 1897 are based on the principle of protection to American industry, and in the construction of their provisions no inference can be drawn against a particular construction, because it will result in imposing double or treble duties on an article by adding duties for each stage it is advanced in manufacture.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 10.]

2. SAME CONSTRUCTION BY TREASURY DEPARTMENT.

The rule applied that a uniform construction given to a provision of a tariff schedule by the Treasury Department through a number of years, during which importations are made in reliance thereon, will not be overruled by the courts, except for cogent reasons.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 10.]

3. SAME-CLASSIFICATION-ARTICLES MADE FROM COATED STEEL WIRE.

Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 137, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1639], imposes a duty on steel wire smaller than No. 16 wire gauge of 2 cents per pound, with an additional duty of 14 cents per pound on articles manufactured from such wire, "and on iron or steel wire coated with zinc, tin, or any other metal two-tenths of 1 cent per pound in addition to the duty imposed on the wire from which it is made." In 1900 the Treasury Department ruled that articles manufactured from steel wire coated were subject to all three of such duties, but shortly thereafter, and in the same year, formally reversed such ruling, and has since uniformly ruled that the additional duty of two-tenths of 1 cent was not to be imposed on articles manufactured from coated steel wire. Held, that in view of the uncertainty of the language of the statute such uniform ruling by the executive department, continued for five years, would be treated as a practical construction of the act, and would not be reversed by the courts.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

For opinion below, see 147 Fed. 892.

Charles S. Hamlin, for appellants.

William H. Garland, Asst. U. S. Atty. (Asa P. French, U. S. Atty., on the brief), for appellee.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM, Circuit Judge. This case arises on the construction of paragraph 137 of the customs act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule C, par. 137, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1639]), as follows:

"137. Round iron or steel wire, not smaller than number thirteen wire gauge, one and one-fourth cents per pound; smaller than number thirteen and not smaller than number sixteen wire gauge, one and one-half cents per pound; smaller than number sixteen wire gauge, two cents per pound: Provided, that all the foregoing valued at more than four cents per pound shall pay forty per centum ad valorem. Iron or steel or other wire not specially provided for

in this act, including such as is commonly known as hat wire, or bonnet wire, crinoline wire, corset wire, needle wire, piano wire, clock wire, and watch wire, whether flat or otherwise, and corset clasps, corset steels and dress steels, and sheet steel in strips, twenty-five one-thousandths of an inch thick or thinner, any of the foregoing, whether uncovered or covered with cotton, silk, metal, or other material, valued at more than four cents per pound, forty-five per centum ad valorem: Provided, that articles manufactured from iron, steel, brass, or copper wire, shall pay the rate of duty imposed upon the wire used in the manufacture of such articles, and in addition thereto one and one-fourth cents per pound, except that wire rope and wire strand shall pay the maximum rate of duty which would be imposed upon any wire used in the manufacture thereof, and in addition thereto one cent per pound; and on iron or steel wire coated with zinc, tin, or any other metal, two-tenths of one cent per pound in addition to the rate imposed on the wire from which it is made."

The importations consisted of rat traps, made of steel wire coated with copper. Some question arose at our bar whether the traps were made of coated wire, or whether the coating was done after the traps were put in shape, but the record shows that the former was the case. As said by the importer, practically the only question in the case is whether, on account of the wire being coated, the traps are subject to the additional duty of two-tenths of one cent per pound, stated in the concluding words of the paragraph in question. The ruling was against the importer, and thereupon it appealed to us.

In developing its position here, the importer says that the words "except that" in the proviso to which the imposition of two-tenths of one cent per pound is attached govern everything which follows. them, leading to the result that "wire coated" is itself a manufacture of wire, so that the rat traps in question and coated wire are each of them manufactures especially and alternately provided for. The importer also claims that, on the ruling of the Circuit Court, a double duty is imposed, which, of course, is the fact. On the other hand, the United States makes no definite proposition beyond maintaining in general terms the result reached by the Circuit Court, except only that they rely upon Salt v. United States (C. C.) 127 Fed. 890, affirmed by the Circuit Court of Appeals in 134 Fed. 1021, 58 C. C. A. 442; and except, also, that they make some reference to "component material of chief value," which is inapplicable under the act of 1897. Salt v. United States is, also, to some extent relied on by the importer; but it affords no assistance to us because it arose from importations of manufactures of copper wire. Although copper wire and iron and steel wire are all covered by paragraph 137, yet the methods by which each is treated are so essentially different that we need make no further observation in reference to the decision thus cited pro and con.

The reliance which the importer places on the words "except that," to which we have referred, is not supported by any plausible reason therefor drawn from the context. It would have support if coated wire could be regarded a manufacture of wire, so as to be, as further suggested by the importer, an alternative for other manufactures of wire; but we will see that that proposition cannot be sustained. In no other aspect could these words relieve the particular portion of paragraph 137 in issue from the difficulties which present themselves. The. words "and on" would still remain undisposed of, indicating that that portion is dislocated.

Although the objection by the importer on the point of double duty was given some weight by the Treasury in decision (22,474), hereafter cited, it is clearly of no assistance. There is a double duty on any construction of the statute, and the question is not one of double, but of treble, duty. However this may be, under the protective systems involved in the statutes of 1890 and 1897, duties specific and ad valorem were piled on each other so often that no particular inference can be drawn from any suggestion as to double duties or treble duties as applied to the case at bar. So, also, the claim by the importer that iron and steel wire coated is a manufacture of wire, and therefore is to be classed with other manufactures of wire, it is plain cannot be maintained. In support of this position, the importer cites several decisions of the Treasury, all of which were prior to the statutes of 1890 and 1897, and were either so remote or coupled with such special circumstances that they are of no assistance whatever. Under the practical rules of construction of customs statutes, to which commercial designations have so much relation, the mind which is fairly experienced perceives at once that giving an ordinary coating to wire does not constitute a new manufacture within the ordinary commercial sense of the expression, or within the meaning of such statutes. This topic was extensively developed by us in United States v. Proctor, 145 Fed. 126, 131, 76 C. C. A. 96, where we pointed out that the extract of nutgalls, although in such advanced state that it contained all the elements of tannin or tannic acid, had not changed its nomenclature so as to be said to be advanced into a distinctly new thing, as water is advanced into steam, or clay into alumina and its metal aluminum. Hartranft v. Wiegmann, 121 U. S. 609, 615, 616, 7 Sup. Ct. 1240, 30 L. Ed. 1012; Tidewater Company v. United States, 171 U. S. 210, 216, 18 Sup. Ct. 837, 43 L. Ed. 139; Allen v. Smith, 173 U. S. 389, 399, 19 Sup. Ct. 446, 43 L. Ed. 741; and United States v. Dudley, 174 U. S. 670, 678, 19 Sup. Ct. 801, 43 L. Ed. 1129. There remains, nevertheless, to be considered the proposition made by the importer that, on a fair and natural reading of the proviso applicable here, the specific duty of twotenths of one cent is not to be levied, except on wire which has been coated and which is imported as such. We will return to this later.

The Board of General Appraisers did not discuss the particular topic before us, and the reason therefor is apparent. The appraiser at the port of Boston, where the merchandise was entered, assessed a duty of 40 per cent. ad valorem, plus 14 cents per pound. Nothing was said by him about the two-tenths of one cent. The protests of the importer were against the 40 per cent.; and those parts of the protests which name the proper duty to be assessed contained several possibly lawful rates, among the rest that of 2 cents, plus 14 cents, plus two-tenths of one cent, the very duty which was held by the Circuit Court to be lawful. This latter suggested rate is what is spoken of by the Board of Appraisers as "(c)". The Board rejected the 40 per cent. ad valorem duty; and, without discussion as to it, it accepted (c) exactly as it stood in the protests, so that the importer is now protesting a rate of duty suggested by itself. This is, nevertheless, without objection on the part of the United States, so that it remains for us to determine what assessment is in fact in accordance with the statute.

By a decision of the Treasury of April 20, 1900 (22,168), it was held that heddles, tinned, carried the specific duties now under discussion of 14 cents per pound and two-tenths of one cent for the tinning. Subsequently, by its decision of September 7, 1900 (22,474), the Treasury formally reversed its decision of April 20th, and held that the additional duty of two-tenths of one cent per pound was not to be imposed upon heddles manufactured of wire tinned. The heddles stand exactly for the rat traps here under consideration; and the decision of the Treasury of September 7, 1900, is directly in point. We are informed that, until the protests in this case, which bear date respectively on September 20, 1905, and October 13, 1905, the importations of this importer were constantly assessed without the addition of the two-tenths of one cent per pound, and duties were paid accordingly. The record shows no trace of any assessment of this additional duty anywhere, or any claim by the Treasury for any such assessment, during the five years which thus intervened. So absolutely uniform was the practice that, in the case before us, the appraiser, as a matter of course, added only 14 cents to the 40 per cent. ad valorem, although, clearly, the additional duty of two-tenths of one cent must be added to the ad valorem duty on iron or steel wire if added to the specific duty. Therefore, we have here a formal ruling of the Treasury, supported by five years continuous, uniform, and universal practice, and this with reference to the construction and practical operation of a statute which certainly must be held in doubt, in view at least of the fact that the experts of the Treasury gave it two absolutely opposite constructions within a period of less than six months.

Aside from this decision of the Treasury of September 7, 1900, and the practice following it, the paragraph in question has no satisfactory history, and no prototype, except as we may hereafter explain. It shows a dislocated form of expression, in that it uses the words "and

which have no proper relation to any phraseology which precedes them. This suggests that it came in by an amendment, the circumstances touching which have in no manner been explained to us. Therefore it is practically impossible to apply the more ordinary rules of construction, except, on the one hand, that, where a question of interpretation of a customs statute is doubtful, the doubt will be resolved in favor of the importer-a general rule constantly repeated-and, on the other hand, that, applying a particular exceptional rule as to the statutes of 1890 and 1897, we must regard the policy running through them to be one of protection to our manufactures. Arnold v. United States, 147 U. S. 494, 497, 13 Sup. Ct. 406, 37 L. Ed. 253. The most which can be said as to general rules of construction is that the phraseology here interposed by Congress cannot be rejected, and must be interpreted in some way.

The importer finds support for his view of this paragraph in that the words on which the United States rely close the paragraph, and, by their mechanical arrangement, come in after the entire question as to the duty on these importations has apparently been disposed of. Therefore the importer's general position which we have stated— that the closing words have nothing to do with these importationsis not without some plausibility. On the other hand, the peculiar