registered with the track leading to the stall in the roundhouse where the engine was to be placed. The stalls were separated by posts which supported the roof and also supported swinging doors. The clearance between the engine and these posts was about 11 inches. The construction in this respect was similar to that of other roundhouses, the clearance varying in different structures from about 4 inches, which is the minimum clearance, to 13 inches, which is the maximum. The plaintiff was an experienced railroad man and for five years prior to the accident had acted as "hostler" in defendant's roundhouse at Hopewell. This roundhouse was similar in construction to the one at East Hartford where the accident happened. The evidence showed that the clearance was insufficient to enable a man to alight from an engine while it was passing through the entrance to the stall before the posts had been passed. Ordinarily the "hostler" has no occasion to alight at this point. His duty is to remain on the engine until it comes to a standstill. It also appeared that such an accident as happened to the plaintiff was unknown among railroad men. The combination of unusual circumstances which led to the accident in question was as follows: The engine came in from the road at about 5 a. m. It had not sufficient steam to move into the roundhouse and there was no air to operate the brakes; in short, the engine was "dead." This condition was reported to one Moriarity, who procured another locomotive and pushed the plaintiff's engine to the sand house, the water station, and, finally, onto the turntable. Subsequently, with still another locomotive, Moriarity backed up against the plaintiff's engine on the turntable and gave it a "kick" for the purpose of sending it into the stall. The plaintiff, fearing lest the engine might run into and, perhaps, through the rear wall of the roundhouse, and being unable to stop its momentum, attempted to alight at the moment the post was being passed, for the purpose of blocking the wheels. He was caught between the post and the tender and received the injuries complained of. At the close of the testimony the defendant moved the court to dismiss the complaint and direct a verdict for the defendant on the following grounds: First, that no negligence had been proven against the defendant in the construction and maintenance of the roundhouse; second, that if the proximate cause of the accident was the action of Moriarity, it was the act of a fellow servant, for which the defendant is not responsible; third, that the plaintiff had full knowledge of the situation on the night of the accident and assumed the risk of the alleged defects in construction. This motion was denied and the defendant excepted.

It is clear that the accident was caused, primarily, by Moriarity, who was a fellow servant, in giving the "dead" engine upon which the plaintiff was stationed too vigorous a "kick" when it was helpless upon the turntable. Whether the plaintiff's action contributed to the accident it is unnecessary to decide. In order to sustain the verdict it must appear that the defendant was guilty of fault. If not guilty of fault, there can be no verdict against it. The only negligence alleged is in the construction of the roundhouse in question, which is said to be faulty for the reason that there was not a wider space between the en

gines and the posts at the entrance to the stalls. It is shown that the construction in this regard was the usual one and that the spaces left were much wider than in the average roundhouse. Was the defendant bound to guard against the wholly abnormal and unusual combination of circumstances which caused the plaintiff's injuries? Is a master required to anticipate an accident which, so far as the evidence here is concerned, had never happened before and may never happen again? We think not. The authorities cited by the plaintiff are not, in our judgment, germane. They all relate to cases where the dangerous structures were allowed to remain where employés in the discharge of their duties might come in contact with them. For instance, it has frequently been held that a brakeman who is required to be on the roof of a car while passing a low bridge may recover, if no warning is given of the proximity of the dangerous structure. So, too, where telegraph poles or other structures are placed so near the moving trains that an employé in the discharge of his duty may come in contact with them. In fact, this court, in the case of the Boston & Maine Railway Company v. John N. Gokey, 149 Fed. 42, 79 C. C. A. 64, held that an employé who was required, while in the discharge of his duty, to be upon a moving train while passing a switch target which was placed so near the track as to strike him while on the ladder at the side of the car, might maintain an action against the railroad.

These cases rest upon the proposition that if it can be foreseen by the exercise of ordinary prudence that an employé may be injured by the machinery furnished for his use, it is the duty of the employer to minimize the danger as far as possible.

In the case at bar, under ordinary circumstances, the "hostler" is required to remain at his post on the engine until it is finally placed in the stall in the roundhouse. Ordinarily the engines are operated by their own steam and are stopped by their own brakes. Here the concurrence of the absence of steam and of insufficient air to operate the brakes made it necessary to call in the services of another engine. The defendant was not, however, required to guard against such an extraordinary combination of circumstances as produced the injury in question. The opening into the stalls of the roundhouse between the posts was ample for all ordinary conditions and, having provided such a structure, the defendant cannot be held responsible because the plaintiff saw fit to attempt to alight at the very moment when the engine was passing the posts. If the contention of the plaintiff be sustained by the courts, it necessarily follows that the owner of a stable who has provided ample room for his horses and carriages to enter can be held. liable if his coachman loses control of the horses and receives injuries. in an attempt to descend from the vehicle at the moment it is passing through the door. It will hardly be contended that the owner of a garage is required to provide an entrance wide enough not only to admit the motor car with perfect safety, but also sufficiently ample to enable the chauffeur, should the machine become unmanageable, to leap out while passing through the entrance.

We know of no rule holding a master to such extreme care. If he provides structures which guard against all accidents which can rea

sonably be foreseen, he has done his duty to those whom he employs. We think the court should have granted the motion for the direction of a verdict for the defendant.

Judgment reversed.

EDSELL, Chinese Inspector, v. D. CHARLIE MARK.

(Circuit Court of Appeals, Ninth Circuit. May 26, 1910.)

No. 1,673.

1. CITIZENS (§ 10*)—EVIDENCE OF CITIZENSHIP.

A passport issued to a Chinese person by the Secretary of State is not evidence of the citizenship of such person in the United States.

[Ed. Note. For other cases, see Citizens, Cent. Dig. § 17; Dec. Dig. § 10.*

Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]

2. ALIENS (§ 32*)-CHINESE EXCLUSION ACT-REVIEW OF Order OF DEPORTATION-JURISDICTION OF COURTS.

A finding by the immigration officers against the right of a person of the Chinese race to enter the United States, which right was claimed on the ground that the applicant was a native-born citizen, is conclusive, and a court cannot entertain habeas corpus proceedings for his discharge, unless it is shown that he was not given a fair and impartial hearing.

[Ed. Note. For other cases, see Aliens, Cent. Dig. § 95; Dec. Dig. § 32.*]

Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.

Proceeding by D. Charlie Mark against H. Edsell, Chinese Inspector in Charge of the Port of Sumas, for writ of habeas corpus. Judgment granting the writ, and defendant appeals. Reversed.

The appellee, D. Charlie Mark, a Chinese person, seeks admission to the United States as a returning native-born citizen. He was denied admission after the usual investigation by the appellant, the Chinese inspector in charge at Port Sumas, Wash. An appeal from the order of rejection was taken to the Secretary of Commerce and Labor, and after consideration the appeal was dismissed, and the order of rejection affirmed. While being detained at Sumas, Wash., awaiting deportation, in accordance with the order of the Secretary of Commerce and Labor, the appellee, through one Loon Kee, filed a petition in the United States District Court for the Western District of Washington, praying for a writ of habeas corpus, alleging, among other things, that the appellee was a native-born citizen of the United States, and was entitled to admission therein; that when seeking admission he was possessed of a passport duly and regularly issued by the Secretary of State of the United States, and that the same was presented to the officers of the Bureau of Immigration at the port of entry, but no consideration was given by the said officers to said passport; further, that he was not given a fair and impartial hearing on his application for admission to the United States by the officers of the Bureau of Immigration. Thereupon the writ as prayed for was granted by the District Court. Appellant objected to the taking of testimony in said cause, other than such as related to the question whether he had been given a fair and impartial hearing on his application for admission into the United States. The objection was overruled, and thereupon testi*For other cases see sami topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

mony on the merits was taken and submitted to the District Court, which thereafter directed the discharge of the appellee from custody. From the order of discharge, the present appeal is taken.

Elmer E. Todd, U. S. Atty., and Charles T. Hutson, Asst. U. S. Atty., for appellant.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

PER CURIAM. The passport issued to the appellee by the Department of State was not evidence of his citizenship. Urtetiqui v. D'Arcy, 34 U. S. 692, 9 L. Ed. 276; In re Gee Hop (D. C.) 71 Fed. 274. With respect to the proceedings before the executive officers concerning the right of appellee to enter the United States on the ground that he was a citizen of the United States, we find nothing in the record indicating that he was deprived of a fair and impartial hearing.

Upon the authority of the case of United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, and In re Tang Tun, 168 Fed. 488, 93 C. C. A. 644, the judgment of the court below is reversed, and the case remanded, with directions to dismiss the proceedings.

CORNELL STEAMBOAT CO. v. FALLON.

(Circuit Court of Appeals, Second Circuit. December 14, 1909. Rehearing Denied February 16, 1910.)

No. 53.

1. SEAMEN (§ 29*)-INJURY TO SEAMAN-Extent oF RECOVERY.

A seaman, who is injured in the service of the vessel, may only recover for his wages and the expenses of maintenance and cure to the end of the voyage, or as long as he has a right to wages, whether he or the shipowners were negligent or not, except that, if the seaman's injury is due to the personal negligence or default of the shipowners, he may recover full indemnity.

[Ed. Note.-For other cases, see Seamen, Cent. Dig. §§ 186-194; Dec. Dig. § 29.*]

2. DEATH (§ 85*)-SEAMEN-ACTION BY ADMINISTRATRIX-EXTENT OF RECOV

ERY.

Where plaintiff, as administratrix, sued for the death of a seaman under Code Civ. Proc. N. Y. § 1902, authorizing an action for wrongful death resulting from negligence, and decedent, had he lived, could have recovered in tort, the fact that he could not have recovered full indemnity did not preclude plaintiff, his administratrix, from recovering full compensation for the pecuniary injuries resulting to her from his death.

[Ed. Note. For other cases, see Death, Cent. Dig. § 111; Dec. Dig. § 85.*]

3. EXECUTORS AND ADMINISTRATORS (§ 29*)-APPOINTMENT-COLLATERAL ATTACK-APPOINTMENT OF ADMINISTtrator-BoNDS.

Where decedent, a resident of New Jersey, died in New York county, and had property in New York, viz., a cause of action for wrongful death, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the surrogate of New York county had Jurisdiction to grant letters of administration, as provided by Code Civ. Proc. N. Y. 2476; and hence, there being no fraud or collusion alleged in obtaining such letters, the administratrix's appointment could not be collaterally attacked, in an action brought by her for decedent's wrongful death, because she was not required to give bond.

[Ed. Note.--For other cases, see Executors and Administrators, Cent. Dig. 177-182; Dec. Dig. § 29.*]

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

Action by Annie V. Fallon, as administratrix, etc., against the Cornell Steamboat Company. Judgment for plaintiff, and defendant brings error. Affirmed.

See, also, 162 Fed. 329.

Amos Van Etten, for plaintiff in error.

Hyland & Zabriskie (Nelson Zabriskie, of counsel), for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD, Circuit Judge. This is an action at law, in which the plaintiff, as administratrix, has recovered a judgment against the defendant under section 1902 of the Code of Civil Procedure of New York because the death of her husband was caused by the defendant's neglect. The deceased was engineer of the tug Scott, and while acting in place of an absent fireman was drowned as the result of a collision between that tug and the tug Williams, also owned by the defendant. The testimony showing no act of God, sudden emergency, or anything to account for the collision other than the negligent navigation of one or both of the tugs, and also showing no negligence on the part of the decedent, the trial judge directed the jury to find a verdict for the plaintiff in such sum as would compensate the parties entitled under the statute for the pecuniary injuries resulting to them from the death of the decedent.

Following many cases decided before that of The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760 (1903), counsel have discussed the questions whether the decedent was a fellow servant of the master of the tug Scott, on which he was employed, or of the master of the Williams, the other tug in collision, or of both. These interesting inquiries seem to us irrelevant. The contract between the defendant and the deceased is a maritime contract, and establishes their relation as well in courts of law as in courts of admiralty. A seaman injured in the service of the vessel has a right to recover against the vessel and her owners for his wages and the expenses of his maintenance and cure to the end of the voyage, or as long as he has a right to wages, whether he is or they are guilty of negligence or not. And this is the extent of his right to recover. There is an exception, apparently a departure from the maritime law, but established by so many decisions that the Supreme Court has declined to disturb it, viz., that if the seaman's injury is due to the personal negligence or default of the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes