and appellant contends that thereby the burden was placed upon the government of showing that appellant was not born within the United States. This contention is directly in the teeth of the statute, which provides that every "Chinese person or person of Chinese descent arrested under" its provisions "shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of" the judge or commissioner, "his lawful right to remain in the United States." 27 Stat. 25, § 3; 32 Stat. 176, Chap. 641; Chin Bak Kan v. United States, 186 U. S. 193, 200, 22 Sup. Ct. 891, 46 L. Ed. 1121; Lum Kim v. United States (C. C. A. 6) 225 Fed. 31, 34, 140 C. C. A. 357; Bak Kun v. United States (C. C. A. 6) 195 Fed. 53, 55, 115 C. C. A. 55; Ng You Nuey v. United States, supra, 224 Fed. at page 343, 140 C. C. A. 26. To hold that the burden thus distinctly imposed upon appellant is shifted by the assertion of a claim of domestic birth would be to emasculate the statute.

[3, 4] The important question is whether appellant has sustained. the burden of proof imposed upon him. The testimony was all taken in open court before the then District Judge (the present Mr. Justice Clarke), who was decidedly of the opinion that appellant's birth in the United States was not satisfactorily shown. This conclusion of the trial judge, fortified as it is by the findings of the commissioner, is, to say the least, entitled to very great weight, and should not be lightly disturbed. Tom Hong v. United States, 193 U. S. 517, 522, 24 Sup. Ct. 517, 48 L. Ed. 772; Bak Kun v. United States, supra, 195 Fed. at page 55, 115 C. C. A. 55. Appellant testified that he was 30 years of age, and was born in San Francisco, Cal.; that he lived there until he was 9 years old, when his father and mother both returned to China, leaving him in charge of Woo Shing, an uncle, who took him to Ashland, Ky. (where the uncle died), and where appellant lived with one Woo Jan; that his parents died in China several years after returning to that country, and that appellant has no brothers or sisters. Appellant's own testimony is not necessarily convincing. Before the District Judge he testified that he was born in a building on Dupont street in San Francisco; that he did not know what his father "was doing, but he was engaged in builder's business." Before the inspector he testified that he was born on a farm, but could not say whether the farm was in San Francisco or outside of that city. Neither before the District Judge nor before the inspector was he able to tell the name of any street in San Francisco (except that in the District Court he mentioned Dupont street as his place of residence); nor does he seem to have had any definite recollection regarding San Francisco, its streets, or general conditions. He refers to no one there who would know him, or who ever knew him. No one else testified to his residence in Ashland.

Appellant produced but two witnesses to sustain his claim of birth in the United States. Both these witnesses testified they were cousins of appellant-one of them, Woo Kong, that appellant was a son of Woo Yeh; the other, Woo Shang, gave the name of appellant's father as Woo Sen. The one said the father was in the general merchandise business, and was agent for a railroad and a steamship company; he seemed to know nothing of the father's being a farmer. The other

said the father had a store at which he sold "Chinese clothes and groceries and such things"; says he may have had other business, but does not appear to have known of any other. Each claimed to have been living in San Francisco about 30 years ago, and at the time appellant was born, and to have known of his birth. But the testimony. of these witnesses, at the most, comes substantially to this: the Chinaman who appellant says was his father had a child born in San Francisco at the time appellant claims he was born; for the witness Woo Kong had not seen appellant from the time he was 2 years old until he was 14 or 15 years of age (and then in Charleston, W. Va.), and naturally did not then recognize him. The other witness had never seen appellant from the time he was 2 months old until he was about 28 years old, 2 years before the trial in the District Court, and then in Cleveland, Ohio. Manifestly, neither of these witnesses would be able to identify appellant as the child born in San Francisco at the time alleged, except for appellant's statement that he was the son of the Chinaman referred to, and that he was born on the date claimed, unless to the extent that statements made regarding persons or facts within the knowledge of the witnesses might have some persuasive force in that direction.

The trial judge refused to credit the testimony of the two corroborating witnesses, saying:

"The manner of these two witnesses on the witness stand and their contradictions in the course of their direct examination, as they testified before this court, and particularly the manner and contradictions of this doctor [Woo Kong], lead this court to believe that no credit can be given to their testimony at all."

In the opinion of the trial judge appellant's claim to citizenship was finally left to rest solely upon his unsupported statement. Careful consideration of the testimony convinces us that we would not be justified. in disturbing the conclusion of the court below. It is, of course, entirely possible that appellant has told the entire truth, and that he is entitled to remain here. If so, his deportation is a serious hardship. But the absence of satisfactory evidence to prove it, through death. of witnesses or otherwise, is his misfortune, and not the fault of the courts, which are not at liberty to disregard the express statute, requiring affirmative and satisfactory proof of his right to remain, nor the settled rules governing appellate administration. Ng You Nuey v. United States, supra, 224 Fed. at page 343, 140 C. C. A. 26.

[5] Exception is taken to the overruling of objections to certain testimony of the inspector, as to his conversations with certain persons. at Ashland, Ky., and with the witness Woo Kong in Charleston, W. Va. Of the latter testimony it is enough to say that the fact testified to had before been substantially admitted by Woo Kong. The statement that the witness had a talk with Woo Chan was harmless, as it was not said what the conversation was. It is doubtful if the testimony as to the statement of Ah Hay was objected to. If the objection was intended to apply to that testimony, it was not good.

The judgment of the District Court must be affirmed.

WILLIAM CRAMP & SONS SHIP & ENGINE BLDG. CO. v. WACZAK. (Circuit Court of Appeals, Third Circuit. May 24, 1917.)

No. 2193.

1. MASTER AND SERVANT 278(5)—ACTIONS FOR INJURIES-SUFFICIENCY OF EVIDENCE.

In an employé's action for injuries, there was testimony to show that a pneumatic drill or chisel operated by him, and which, when in proper order, would operate only when a spring or lever was pressed, and would cease operating when such pressure was withdrawn, was defective, in that it would not respond properly to the lever mechanism, but would start when it should stop, and stop when it should start, that, when an attempt was made to stop it, it continued to operate, with the result that the chisel stuck and the blade broke, a portion of it striking plaintiff in the eye, and that the employer was informed of this defect in the apparatus. Held, that these facts, if true, were sufficient proof of the employer's negligence in failing to provide a safe and suitable instrument with which to work, to support the action, and the case was not one in which an attempt was made to deduce negligence from the happening of the accident.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 961.] 2 MASTER AND SERVANT 189(7)—FELLOW SERVANTS-FOREMAN.

Where there was testimony that an employé in the conduct of his work was wholly subject to a foreman's orders and that the foreman, though not having the power of final discharge, had the power to select men for discharge, and that discharges were made by another upon his recommendation, the court properly refused to hold the foreman a fellow servant of the employé, without power to speak for the employer in directing the employé in his work.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 448.] 3. MASTER AND SERVANT 289(8)-ACTIONS FOR INJURIES QUESTION FOR

JURY.

Reasonable reliance by a servant on a master's promise to repair, and continued use of a defective instrument for a reasonable period pending performance, is not contributory negligence as a matter of law.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1097.] 4. MASTER AND SERVANT 289(8)—ACTIONS FOR INJURIES QUESTIONS FOR JURY.

In an employé's action for injuries, there was evidence that a pneumatic drill or chisel, intended to operate only when a spring or lever was pressed, did not respond properly to pressure, in that it would start when it should stop, and stop when it should start, that the employé operating it told his foreman that it was no good, that the foreman after examining it and trying it for himself, said it was all right, and for the employé to go to work, and that he would fix it when he got a chance, that the employé continued to work with it for about three hours, and that he was then injured by its failure to work properly. There was no evidence to show that, after the promise to repair, there was any change in the defective operation, or anything to indicate that the danger was greater or more imminent after the promise than before. Held, that the court properly refused to hold as a matter of law that plaintiff relied upon the promise for an unreasonable period, and imprudently continued in the employment in the face of obvious and imminent danger, and was therefore guilty of contributory negligence, as what is a reasonable period to continue in the employment, in reliance on a promise of repair, is ordinarily a question for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1097.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.

Action by Adam Waczak against the William Cramp & Sons Ship & Engine Building Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Graham & Gilfillan and Joseph Gilfillan, all of Philadelphia, Pa., for plaintiff in error.

B. D. Oliensis, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY, Circuit Judge. This is an action for personal injuries sustained by the plaintiff, in consequence, it is alleged, of the negligence of the defendant in ordering and directing him to use a tool known by the defendant to be defective and dangerous.

The plaintiff was a chipper and caulker in the shipyard of the defendant. He worked with a pneumatic drill or chisel called an “air gun." The mechanism of this appliance was such that when in proper order it would operate only when a spring or lever was pressed and it would cease operating the instant pressure was withdrawn.

Shortly after going to work on the day of the accident, the plaintiff found that the air gun did not respond properly to pressure, in that it would start when it should stop and stop when it should start. He took it to his foreman and had the following conversation with him. The plaintiff said:

""Charlie, that machine no good, he don't drive regular.' And Charlie Ginhart said to me-he got hold of the machine to look at it, and he started it himself. He said, 'The machine is all right. You go to work. When I get a chance I will fix it right.'"

The plaintiff returned to work with the tool in this condition and continued to work with it for about three hours, when, as he testified, the chisel of the gun stuck against the iron, the gun refused to stop upon release of pressure, and the chisel broke, one part remaining in the iron, and the other flying through the air struck him in the eye and inflicted the injury complained of. These facts were vigorously controverted, but are now established by the verdict of the jury.

[1] The first error assigned was the court's refusal to direct a verdict for the defendant on the ground that the plaintiff had failed to prove negligence. In support of this contention, the defendant urges that evidence which showed that the spring would not work, but did not show why it would not work, was not evidence of the defective condition of the appliance, and in default of other evidence left the jury to find negligence from the fact of the accident.

This was not a case where the act which caused the injury was unknown or left in doubt, as in those cases in which attempts have been made to deduce negligence from the happening of the accident (Ceen v. Cramp, 249 Pa. 415, 95 Atl. 101; Montgomery v. Rowe, 239 Pa. 321, 86 Atl. 923; Brynelson v. Concrete Steel Co., 239 Pa. 346, 86 Atl. 924); for here the testimony showed that the tool was defective and wherein it was defective, and how the accident happened in conse

quence of the defect. It showed that the defect in the appliance was its refusal to respond properly to the lever mechanism; that in the lever mechanism was the seat of the trouble, and that because it would not respond it continued to operate when an attempt was made to stop it, with the result that the chisel stuck and the blade broke, and in that way caused the injury. It further appeared that the defendant was informed of the defect. Assuming this to be a true narrative of the facts, it was proof of the master's negligence in failing to provide the servant with a safe and suitable instrument with which to work, amply sufficient to support the action. Whether it was true was a question wholly for the jury. Gerding v. Standard Pressed Steel Co., 220 Pa. 229, 69 Atl. 672.

Error is charged to the court for submitting to the jury the question of the plaintiff's right to recover after returning to work with a known defective appliance upon the direction of the foreman and in reliance upon his promise to repair. This error is assigned upon several grounds, the first of which is that the foreman was the plaintiff's fellow servant and therefore was without authority to bind the defendant by his order and promise.

[2] In presenting this question, counsel did not invoke the law of vice principal as declared by the Pennsylvania Employers' Liability Act (P. L. 1907, p. 523), but relied generally upon the sufficiency of the testimony to take the foreman out of the class of fellow servants. Considering the point along the line of the argument, we are satisfied that there was testimony in abundance that the plaintiff, in the conduct of his work, was wholly subject to the foreman's orders, and that the foreman, though not having the power of final discharge, had the power to select men for discharge, and upon his recommendation discharges were formally made by another. Upon the evidence as to the relative positions of the plaintiff and the foreman and as to the foreman's control of the plaintiff, we are of opinion that the court committed no error in refusing to hold the foreman a fellow servant of the plaintiff without power to speak for the defendant in directing the plaintiff in his work.

[3, 4] The defendant contends finally that even if the foreman was authorized to speak for and bind the defendant, his promise to fix the appliance when he got a chance was not sufficiently definite in point of time for the plaintiff to rely upon it, and if in reliance upon it he continued to work with the tool for something more than three hours, knowing its defects all the while, he was guilty of contributory negli gence, and therefore the court should have directed a verdict for the defendant. This contention is controlled by well settled principles. In Glass v. College Hill Borough, 233 Pa. 457, 82 Atl. 771, the court said:

"That a servant may be guilty of contributory negligence in continuing to use a machine which he knows to be in a dangerous condition, notwithstanding he has protested against such use, and received the master's promise to repair, is not to be questioned; but, after all, the test of contributory negligence in such case is whether the danger in using the machine was so imminent that no man of ordinary prudence would assume the risk. Except where the danger is so imminent that a reasonably prudent man would not incur it, the servant may, in reliance on the promise of the employer to