cial directions for operating the machine. We have said there was evidence tending to prove these things. It is not to be disputed that other evidence was put into the case tending to refute some or all of the matters thus stated, and which, if we were weighing the facts, might persuade us to a different conclusion as to some of them. But this was the province of the jury, and not of the court, if, as we think was the case here, evidence was given, which, if credited, tended fairly to show such facts, notwithstanding they might have been disputed by evidence more persuasive with the court. The plaintiff, while employed on the machine as above stated, had occasion to run a “chaser” through it. It stopped in the machine, and it was necessary, as the plaintiff supposed, to get it out. Accordingly, he went around to the rear end of the machine, and, seizing the "chaser" with his hands, pressed one foot against the rear end of the platform, and tried to pull it out. The rear cylinder was obscured by a pile of chips and shavings, and he says he did not see it. His foot slipped, and went back under the platform into contact with the cylinder, and was so mutilated that amputation became necessary.

At the close of the evidence the defendant's counsel prayed an instruction to the jury that the plaintiff was not entitled to recover, for the reasons, as then stated: "That under the evidence in the case the plaintiff was guilty of contributory negligence. That the risk was an obvious risk. The plaintiff had an equal opportunity with the defendant to know and appreciate the danger, and that by bracing his foot against that end of the planer and pulling upon the chaser, as shown by the evidence, he was guilty of such contributory negligence as defeated his right to recover." This instruction was refused, and the defendant excepted. Although there are other exceptions, the principal controversy is upon the question whether this instruction should have been granted. We think the court correctly held that the case was such that it was required to submit it to the jury. Appeal is made to the rule as first stated by the supreme court in Pleasants v. Fant, 22 Wall. 116, 22 L..Ed. 780, in which Mr. Justice Miller declared the "true principle to be that, if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury." But, gauged by this rule, there was some testimony bearing upon the facts which it was incumbent on the plaintiff to make out to support his action, which, if the jury thought it most worthy of credit, justified the verdict. It is a well-settled proposition that, when the employer sets his employé at new work in conditions of danger not understood or appreciated by the latter, the employer is bound to warn him of the peril. And if the work is to be done by machinery with the operation of which the employé is not acquainted, and there is a safe way and an unsafe way, the employer, if he has reason to know that the employé is unskilled, is required to give him instructions for operating it in the way by which he will avoid injury. This duty is emphasized where, as in this case, the employé is a mere youth; for the presumption of the lack of knowledge and skill on his part is all the greater. We have quite recently

had under review so many cases in which questions of this character have been involved and the rules applicable thereto have been explained and applied that we think it unnecessary to go into extended discussion of the subject. Ellsworth v. Metheney, 44 C. C. A. 484, 104 Fed. 120, 51 L. R. A. 389; Railway Co. v. Miller, 43 C. C. A. 436, 104 Fed. 124; Felton v. Girardy, 43 C. C. A. 439, 104 Fed. 127; Telegraph Co. v. Burgess, 47 C. C. A. 168, 108 Fed. 26.

What we have said has equal application to the questions relating to the assumption of risk by the plaintiff and his alleged contributory negligence. But we add that the plaintiff did not assume risks which, from his inexperience and lack of warning and the obscurity of the danger, he could not fairly be regarded as having contemplated. In the circumstances which we have recited, we think it was for the jury to determine whether or not the risk to which he was exposed was of the character which he was bound to assume.

Nearly all of the other matters discussed in his brief and in argument upon the hearing by counsel for the plaintiff in error consist of subordinate points involved in the question already considered as to whether the court should have taken the case from the jury, none of which requires independent consideration.

One other question remains. It is urged that the court, in its instructions to the jury, gave them to understand that the defendant became an absolute insurer of the plaintiff's safety. In order to see whether this objection is well founded, perhaps the best way will be to set forth the instructions which are supposed to have induced the . wrong understanding on the part of the jury.

"That is, gentlemen, if Ebert [the foreman] set him at one end of this machine simply to feed in the boards and not to take out the chaser, then he cannot recover; but if Ebert set him to running this machine.-to do this planing, and it was understood that the man who did the planing took out the chaser, as the plaintiff swears he saw Ebert and other operatives of this machine do, then you would be justified in finding, if you came to that conclusion, that when Ebert set him to putting the boards into this machine and running this planer that he was not only to feed in the boards, but to do the work of the operator of the machine, which would be, he says, to take out the chaser after the last board had been run through. You must find that from the evidence."

"And if you find that Ebert did set the plaintiff at work to run this planer, and it was his understanding that the plaintiff was not only to run the boards through, but the plaintiff was to run the last board through by means of the chaser, and then take the chaser out; and if you find that under all the facts and circumstances in the case it was the duty of Ebert to instruct the plaintiff that the chaser should be taken out by loosening the pressure bar, if you find that was the way in which the chaser was to be taken out when it was found to be fastened so that it required force, then I instruct you, gentlemen, that you may find it was the duty of Mr. Ebert (if that was not apparent so that any one could see it of ordinary intelligence and the age of this young man) to instruct the young man that to take out the chaser it would be only necessary for him to loosen this pressure bar."

"Gentlemen, if he was put there for the purpose of feeding the boards through, and, after he got through, to take out the chaser, then you could find that it was negligence in Mr. Ebert in not instructing him how to take out the chaser by unscrewing this set screw and relieving it by removing the pressure bar."

"But it is for you to find, under all the circumstances of the case, whether or not it was negligence for Ebert not to instruct him to release this pressure bar, and thereby release this chaser."

These instructions are not, in our opinion, susceptible of the interpretation that the court led the jury to understand that the defendant became the insurer of the plaintiff's safety. We have looked into the charge of the court, which appears to be set forth in full in the bill of exceptions, and think the case was fairly and correctly submitted to the jury.

Finding no error, the judgment must be affirmed.

(119 Fed. 334.)

UNITED STATES v. MULLINS.

(Circuit Court of Appeals, Sixth Circuit. December 2, 1902.)

No. 1,014.

1. INTERNAL REVENUE-RECOVERY OF TAX-EFFECT OF NEGLIGENCE OF OFFICERS.

The negligence of officers in failing to collect a tax on spirits at the proper time, when the spirits were removed from the warehouse, will not preclude the United States from recovering such tax in an action upon the distiller's bond, if it was properly chargeable.

2. SAME-TAX ON DISTILLED SPIRITS-PURCHASE AND WITHDRAWAL BY UNITED STATES.

Packages of distilled spirits purchased by the United States while in a bonded warehouse, and ordered by the secretary of the treasury to be allowed to be withdrawn "free of tax," under the provisions of Rev. St. § 3464 [U. S. Comp. St. 1901, p. 2284], are thereby withdrawn entirely from the operation of the internal revenue laws, and there is no occasion for the regauging and adjustment of the tax thereon, as upon a withdrawal for private consumption, and the distiller cannot be charged with the tax upon a claimed excess of shrinkage therein.

In Error to the District Court of the United States for the Western District of Kentucky.

R. D. Hill, for the United States.

Charles H. Stoll, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS, Circuit Judge. This cause consists of the consolidation of three actions brought to recover, upon three warehousing bonds executed and delivered by Dwight A. Aiken, as principal, and Alfred R. Mullins, as surety, certain taxes alleged to be due and unpaid on account of a quantity of distilled spirits entered and bonded at the distillery of Aiken, at Lexington, Ky. The bonds were given upon three several entries for the months of March, April and June, respectively, in 1881. On August 9, 1883, the United States having purchased some of the spirits, the secretary of the treasury directed the collector of that district to allow an agent of the United States to withdraw from the warehouse certain numbered packages thereof, "free of tax," for the use of the medical department of the army. The packages mentioned consisted of some of each of the several entries. They were withdrawn accordingly. They were regauged, but there was no provision made for the liquidation of the taxes here in question. All the packages of the several en

tries were gauged at the time of their deposit in the warehouse, and the tax of 90 cents per gallon assessed against them, as prescribed by law. But at the date of the withdrawal a shortage was found to exist in the packages withdrawn, greater than that which the law permits for deduction on account of shrinkage. This excess of shrinkage amounted to 260 gallons, and the tax thereon, if chargeable, amounted to $234; and it is for this, with penalty and interest, the government seeks recovery. It does not appear whether the government purchased the spirits of Aiken directly, or from some other person. The burden was on the plaintiff to prove that the purchase was of another person, if it claimed any advantage from such a fact.

The defendants filed an answer to the petition, in which, among other things, it was set forth that Mullins was a surety; that the government had a lien on the spirits for all taxes thereon, and owed him the duty to collect all taxes due on the spirits at the time of the purchase; and that, it having failed to do this, he (the surety) was discharged. The petitioner demurred to this answer. The court sustained the demurrer as to Aiken, and judgment was given for the plaintiff. As to Mullins, the demurrer was overruled. At this stage of the cause the government and Mullins agreed upon a statement of facts to be submitted to the court, without a jury, for judgment. The facts agreed upon were those hereinbefore set out. The court rendered judgment for the defendant Mullins, and the plaintiff brings the case here on writ of error.

Apparently, the court rendered its judgment in favor of the surety upon the ground that he was discharged by the failure of the government to deduct the tax on the shrinkage from the price paid for the spirits at the time of the withdrawal. We think that was a mistake, and that if the tax was chargeable, and the officers who conducted the business should have deducted it, but neglected to do so, the government was not responsible for their negligence. If that be so, neither of the obligors upon the bonds was discharged from liability for the tax, if that was a proper charge. Nevertheless, we are of opinion that the judgment in favor of the defendant Mullins was right for other reasons.

At the time the withdrawal was directed to be made, the tax, although there had been a preliminary gauging, had not yet matured; and the question arises whether the withdrawal for the government of the spirits "free of tax" involved the regauging and the adjustment of taxes, or, in other words, whether any further consideration of taxes upon the packages withdrawn was required. The statute under which the withdrawal was made was section 3464, Rev. St. [U. S. Comp. St. 1901, p. 2284], reading as follows:

"The privilege of purchasing supplies of goods imported from foreign countries for the use of the United States, duty free, which now does or hereafter shall exist by provision of law, shall be extended, under such regulations as the secretary of the treasury may prescribe, to all articles of domestic production which are subject to tax by the provisions of this title."

Counsel have not referred us to any statute giving the privilege mentioned in section 3464. The only one, then or thereafter, and

prior to the date of this transaction, existing, which provided for the purchase and withdrawal of imported goods for the use of the United States duty free, of which we are aware, was section 2514, Rev. St. [U. S. Comp. St. 1901, p. 1695], which was as follows:

"All articles of foreign production needed for the repair of American vessels engaged exclusively in foreign trade may be withdrawn from bonded warehouses free of duty, under such regulations as the secretary of the treasury may prescribe."

This section plainly imports that the articles purchased are withdrawn thereby from the operation of the statute providing for the payment of a duty. Section 3464 extends this privilege of purchasing "duty free" to all articles of "domestic production" which are subject to tax under the internal revenue act. There is no provision anywhere for the readjustment of the tax, such as takes place on withdrawal on private account, and it would be illogical and inconsistent with the purpose of the statute that there should be any such readjustment, the only object of which would be to ascertain whether the tax should be varied. It seems unreasonable to suppose that, the article having been made "tax free," the statute intended that an inquiry should be made to ascertain what tax would be due on account of the article. Regauging was necessary, of course, in order to measure the purchase price.

The argument by which the collection of the tax in question is supported seems technical and highly artificial. It assumes, without reason, as we think, that when the spirits are purchased by the United States the withdrawal is to take place with the same incidents as upon a withdrawal for private purposes. And upon this assumption it is contended that the theory of the transaction is that the government takes account of the tax, charges it up against the owner according to the original measurement, gives him credit for the tax according to the readjustment, and collects the tax on the shrinkage; imputing the shrinkage to the negligence or fraud of the owner. Of course, it is not difficult to see a certain plausibility in all this, if the premises were sound, but it is built up by construction upon an assumption which we think not well taken. It has been often held that, when a statute providing for taxation is of doubtful construction, the doubt is to be resolved in favor of the taxpayer. U. S. v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; U. S. v. Isham, 17 Wall. 496, 21 L. Ed. 728; Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012; Twine Co. v. Worthington, 141 U. S. 474, 12 Sup. Ct. 55, 35 L. Ed. 821; Rice v. U. S., 4 C. C. A. 104, 53 Fed. 910; Matheson & Co. v. U. S., 18 C. C. A. 143, 71 Fed. 394. And such is undoubtedly the English rule. Partington v. Attorney General, L. R. 4 H. L. 100. We think that at least it is permissible to say of this doctrine what is said by Cooley in his work. on Taxation (page 275 of the second edition):

"But there can be no propriety in construing such a law either with exceptional strictness, amounting to hostility, or with exceptional favor, beyond that accorded to other general laws. It is as unreasonable to sound a charge upon it as an enemy to individual and popular rights, as it is to seek for sophistical reasons for grasping and holding by its authority every subject of taxation which the dragnet of the official force has brought within