of this chapter, have the sole liberty of printing, publishing and vending the same.' This would seem to demonstrate the intention of Congress to vest in 'assigns,' before copyright, the same privilege of subsequently acquiring complete statutory copyright as the original author, inventor, dealer or proprietor," and there was an explicit definition of the right transferred as follows: "While it is true that the property in copyright in this country is the creature of the statute, the nature and character of the property grows out of the recognition of the separate ownership of the right of copying from that which inheres in the mere physical control of the thing itself, and the statute must be read in the light of the intention of Congress to protect these intangible rights as a reward of the inventive genius that has produced the work." In other words, an assignee within the meaning of the statute is one who receives a transfer, not necessarily of the painting but of the right to multiply copies of it. And such right does not depend alone upon the statute, as contended by plaintiff, but is a right derived from the painter and secured by the statute to the assignee of the painter's right. Of this the opinion leaves no doubt, for it is further said: "We think every consideration of the nature of the property and the things to be accomplished support the conclusion that this statute means to give to the assignees of the original owner of the right to copyright an article [italics ours], the right to take out the copyright secured by the statute independently of the ownership of the article itself." The same idea was repeated when the court came to consider whether the exhibition of the painting, which was the subjectmatter of the case, in the Royal Gallery, constituted a general publication which deprived the painter, as the owner of the copyright, of the benefit of the statutory provision. It was said: "Considering this feature of the case, it is well to remember that the property of the author or painter in his intellectual creation is absolute until he voluntarily parts with the same." And the painter had the right of copyright, he being a subject of Great Britain, that country having copyright relations with

the United States. His assignee, Werckmeister, was also a citizen of a country having copyright relations with us. But it was the right of the painter which was made prominent in the case and determined its decision.

It was not an abstract right the court passed on, one that arose simply from ownership of the painting. It was the right given by the statute, and which, when transferred, constituted the person to whom it was transferred an assignee under the statute and of the rights which the statute conferred on the assignor. "It is the physical thing created, or the right of printing, publishing, copying, etc., which is within the statutory protection." It is this right of multiplication of copies that is asserted in the case at bar, and it is not necessary to consider what right plaintiff might have had under the common law "before he sought his Federal copyright and published the painting." See White-Smith Music Co. v. Apollo Co., 209 U. S. 1.

It is next contended that Hernandez, as a subject of Peru, was entitled to a statutory copyright in his own right, because, as it is further contended, Peru belongs to the Montevideo International Union. This contention is based on the words of § 13, supra, which gives the right of copyright to a citizen or subject of a foreign state or nation when such state or nation "is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement." If this were all there were in the statute, the contention of the plaintiff might have some foundation. The statute, however, provides that the existence of such condition. "shall be determined by the President of the United States by proclamation, made from time to time, as the purposes" of the "act may require." It is insisted, however, that this provision is directory and a right is conferred independent of the action of the President, his proclamation being only a convenient mode of proving the fact. - We cannot concur in this view, nor do the cases cited by plain

tiff sustain it. In Morrill v. Jones, 106 U. S. 466; Campbell v. United States, 107 U. S. 407; Williamson v. United States, 207 U. S. 425, this court decided that where the Secretary of the Treasury or Secretary of the Interior is authorized to make regulations in aid of the law, he cannot make regulations which defeat the law. In Buttfield v. Stranahan, 192 U. S. 470, a regulation of the Secretary of the Treasury fixed the primary standard of imported tea, and was sustained as an "executive duty to effectuate the legislative policy declared in the statute."

It is admitted that the decision of the State Department is adverse to the contention, and, it is asserted by defendant and not denied by plaintiff, that the Librarian of Congress has always construed the statutes as denying to citizens of Peru copyright protection. We think, besides, the statute is clear and makes the President's proclamation a condition of the right. And there was reason for it. The statute contemplated a reciprocity of rights, and what officer is better able to determine the conditions upon which they might depend than the President?

On the record, we think there was no error in directing a verdict on the opening statement of counsel. We agree, however, with plaintiff that it is better to let a case be developed by evidence. In Hoffman House v. Foote, 172 N. Y. 348, it was pertinently said: "The practice of disposing of cases upon the mere opening of counsel is generally a very unsafe method of deciding controversies where there is or was anything to decide."

Judgment affirmed.

214 U. S.

Syllabus.

KREIGH v. WESTINGHOUSE, CHURCH, KERR &

COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT.

No. 188. Argued April 27, 28, 1909.-Decided May 24, 1909.

Where at the time of removal to the Federal court neither of the parties was a resident nor citizen of the district, that defect, although jurisdictional, being only as to the particular district, can be waived; and is waived, if, as in this case, the parties make up the issues on the merits without objecting to the jurisdiction. Re Moore, 209 U. S. 490; Western Loan Co. v. Butte Co., 210 U. S. 368.

It is the duty of the master to use reasonable diligence in providing a safe place for his employés to work in and to carry on his business; and the employé may, in the absence of notice to the contrary, assume that the master will use reasonable care in furnishing appliances for carrying on the business. Choctaw & Oklahoma R. R. v. McDade, 191 U. S. 64.

The duty of the master to provide safe place and appliances for his employés is a continuing one and must be exercised whenever circumstances demand it, Santa Fe & Pacific R. R. v. Holmes, 202 U.S. 438; and this applies where the workmen are engaged in work more or less dangerous and it is only a matter of using due skill and care to make the place and appliances safe. Choctaw & Oklahoma R. R. v. McDade, 191 U. S. 64.

Where the negligence of the master in failing to provide and maintain a safe place contributes to the injury of the employé, the master is liable notwithstanding the concurring negligence of those performing the work. Deserant v. Cerillos Coal R. R. Co., 178 U. S. 409. Questions of negligence do not become questions of law except where all reasonable men must draw the same conclusion from the evi- . dence, nor should a case be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish. Gardner v. Michigan Cent. R. R., 150 U. S. 349.

In this case held that there was sufficient evidence as to the defective condition of a derrick and the method in which it was operated to

Argument for Petitioner.

214 U.S.

require the submission, under proper instructions from the court, to the jury.

152 Fed. Rep. 120, reversed.

THE facts are stated in the opinion.

Mr. James S. Botsford and Mr. Rees Turpin for petitioner: The plaintiff's injury was the natural and probable consequence of an act of negligence and is therefore actionable because it could have been foreseen and reasonably anticipated and was the probable result of the act and omission of defendant. B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 386.

It was plaintiff's duty to be where he was at the time of the accident, and he had a right to assume that the bucket was being moved by a lever or by guy and ropes, so as to control the movement of the bucket, and that warnings and signals of the movement of the bucket would be given. L. & N. R. R. Co. v. Ward, 61 Fed. Rep. 927; Union Pac. R. R. Co. v. McDonald, 152 U. S. 262; Colusa-Parrot Mining & Smelting Co. v. Monahan, 162 Fed. Rep. 276; Lang v. Terry, 163 Massachusetts, 138; Newark Electric Light & Power Co. v. Garden, 78 Fed. Rep. 74.

Not only was plaintiff ignorant of the defendant's failure to provide for his safety, but the law cast no obligation upon him to become familiar with it. Swoboda v. Ward, 40 Michigan 420; Grace Hyde Co. v. Kennedy, 99 Fed. Rep. 682.

The statement of the Circuit Court of Appeals as to the rule of safe place is correct as a general statement of the law, but does not lead to the result adjudged. The rule applicable to the present case is correctly laid down in National Refining Co. v. Willis, 143 Fed. Rep. 147; Austin Manufacturing Co. v. Johnson, 89 Fed. Rep. 677; 32 C. C. A. 309.

Where the servants engaged in a department of work themselves change the condition of the place where they are employed by the work they are doing and by that work create a peril by reason of which one of their number engaged in the same department of work is injured the master is not liable.