muscular fibres generally." Century Dictionary, tit. tit. "Tonic." Among the drugs or preparations which are classed as tonics are "weak alcoholic beverages in very moderate quantities." Universal Cyclopaedia, tit. "Tonic." The same authority says: "The stimulant and tonic properties of beer are due to the alcohol and bitter principle of the hop, while its nutritive value is ascribed to the extractive matters derived chiefly from the malt. The exact character of many of the constituents of beer is not known." Id. tit. "Beer."

Beyond all question the article put on the market by the plaintiff and labeled as a tonic was a tonic as that term is defined by standard authorities. Whatever else it contained, it contained alcohol and the bitter principle of the hop in proportions that made it a mild tonic, instead of an intoxicating beverage. This is undeniable, since the plaintiff explains that its reason for putting the article up in the manner it did was to sell it in the Indian Territory and the state of Kansas and other prohibition localities, where it was unlawful to sell ordinary beer and other intoxicating beverages.

It is common knowledge that physicians frequently prescribe some kinds of beer as a tonic to be taken by their patients for physical ailments. The word "tonic" in itself signifies to the common understanding a preparation having medicinal qualities. The plaintiff unquestionably used the word in this sense, as it well might do, for, as we have seen, the alcohol and hop extract which the preparation contained did constitute it a tonic according to all definitions of that term, which might well be used, and often is used, for medicinal purposes; and brought it directly within the terms of the statute which embraces every medicinal preparation or composition whatsoever which is held out as having remedial properties, or as remedies for any diseases or affections of the human body, or which are advertised on the package or otherwise as remedies for any ailment, or as having any special claim to merit or to any peculiar advantage in mode of preparation, quality, use, or effect. By labeling its bottles "J. D. Iler's Rochester Tonic" the plaintiff did thereby distinctly advertise on the package that its tonic had tonic or medicinal qualities. The statute does not require the ingredients of the tonic or its mode of preparation to appear on the package. The plaintiff will be presumed to have conformed to the law, which prohibited it under heavy penalties from shipping or removing its fermented liquors under any other than the proper name to designate their kind and quality. The plaintiff knew the ingredients and qualities of its products, and with this knowledge, and the further knowledge that the law required it under heavy penalties to mark or label its packages with "the proper name" of their contents, it deliberately chose to name and label this product "Rochester Tonic," and put it on the market as such, and obtained an extensive sale for it in that character. Having enjoyed all the benefits of its sale as a tonic, it is now too late to call it by another name for the purpose of escaping taxation. Law and morals alike forbid the allowance of such a claim. We feel constrained to accept the name the plaintiff itself bestowed on its product under the most serious sanctions, and thus acquit it of a deliberate intention to perpetrate a fraud on the pub

lic, and violate the criminal laws of the United States. Moreover, to hold otherwise would give the plaintiff a great and unfair advantage over its competitors in the fermented liquor trade.

It is said that to compel the plaintiff to pay a stamp tax on this product will be subjecting it to double taxation; but it is not so. A tax paid on beer in the barrel does not exempt that product from a stamp tax when it possesses mild tonic properties, and is put up in bottles, and named and labeled in a manner that brings it within the purview of Schedule B. The plaintiff voluntarily assumed the obligation to pay the stamp tax when it bottled and labeled and named it a tonic, which, as we have seen, it really was.

It was amply compensated for paying a stamp tax by the extended sale of its tonic to persons who wanted to purchase a tonic, and not beer, or any stronger beverage, and by its very extended sale in localities where beer could not be sold.

For the sale of "Rochester Tonic" the plaintiff paid no tax until it paid the tax which it seeks in this suit to recover back. Moreover, it would be entirely competent for Congress to impose a tax on beer in barrels and an additional tax on it when put up in bottles. If the plaintiff had been proceeded against criminally for a violation of section 3449 of the Revised Statutes, it is not doubted but what it could and would have successfully defended the prosecution upon. the ground that the contents of these bottles was not ordinary beer, but a mild tonic, and that the bottles were, therefore, truthfully labeled.

The judgment of the Circuit Court is reversed, and the cause remanded, with instructions to dismiss the plaintiff's petition.

NORTHERN PAC. RY. CO. v. SPIKE.

(Circuit Court of Appeals, Eighth Circuit. February 19, 1903.)

No. 1,797.

1. RAILROADS-CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCE.

Plaintiff's intestate was riding home alone after dark, in a lumber wagon, when he was killed by a collision at a crossing. The highway and railroad ran parallel for some distance, till within 75 feet of the crossing the highway turned down a declivity to the crossing. At the time of the accident the train was 12 hours late, and running at a speed of 30 miles an hour, in the same direction deceased was driving. It gave no signals upon approaching the crossing, and the wind was in the opposite direction. The view of the track was more or less obstructed from the highway, and from the turn to the crossing neither the train nor its headlight could be seen until one was on or near the track. Defendant attempted to show by photographs taken some time after the accident, and in the daytime, that at various points before reaching the crossing decedent could have seen the headlight on the locomotive, had he looked, but no photograph was shown of any point between the turn and the crossing. Held, that decedent was not shown to have been guilty of contributory negligence, as a matter of law.

Where the view of a railroad track, running almost parallel with a highway, is obstructed by trees, fences, etc., so that a train can be seen

only at intervals, and at a distance of 75 feet from a crossing such view is entirely cut off by an embankment till the traveler is on or near the track, it is imperatively necessary for the safety of travelers that trains give the statutory signals on approaching the crossing.

8. SAME CONTRIBUTORY NEGLIGENCE-PRESUMPTION.

The presumption that a traveler killed at a railroad crossing was at the time in the exercise of due care is sufficient to warrant a recovery in the absence of countervailing testimony.

In Error to the Circuit Court of the United States for the District of Minnesota.

L. T. Chamberlain (C. W. Bunn, on the brief), for plaintiff in er

ror.

Halvor Steenerson (Charles Loring, on the brief), for defendant in

error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL, Circuit Judge. On the 31st day of December, 1900, about 8:25 p. m., William I. Spike, a man of intelligence, 31 years old, in the full possession of all his senses, was traveling along the public highway, with which he was familiar, leading from Detroit, Minn., to his home; driving a span of mules, hitched to an ordinary lumber wagon. For some distance the highway runs east and west, and nearly parallel to the railroad, but at varying distances from it, until the highway approaches within about 75 feet of the point at which it crosses the railroad track, when it turns south, and, going down a declivity, crosses the railroad at grade. At this crossing a locomotive pulling one of defendant's passenger trains came in collision with the team driven by Mr. Spike, killing him instantly, and this action is brought by his administratrix, under the Minnesota statute, to recover damages for his death, upon the ground that the accident resulted solely from the culpable negligence of the defendant railway company. In this court it is not contended that the evidence did not warrant the jury's finding that the railway company was guilty of negligence. The contention is that the deceased was guilty of contributory negligence, and that this court should so declare, as matter of law. The burden is on the defendant to establish this defense of contributory negligence by clear and satisfactory testimony. A brief summary of some of the leading facts will show very clearly that it has not discharged this burden.

The accident occurred after night. The deceased and the train were going in the same general direction until the highway turned sharp to the south to cross the railroad track. The train was running at the speed of 30 miles an hour. As it approached the highway it gave no signal by whistle or bell, as required by the law of the state. The wind was blowing in the opposite direction to that which the deceased and the train were moving. The train was 12 hours behind its schedule time. The country along and over which the highway ran was somewhat broken, and owing to this fact, and the presence of brush, trees, telegraph poles, fences, and the like, the train or its headlight could only have been seen at intervals by one

looking back for that purpose; and, owing to a railroad cut and the topography of the country, neither the train nor its headlight could be seen from the point where the highway 'turned to the south to cross the railroad track until one was on or near the track.

The defendant's evidence consists chiefly of photographs taken under the supervision of its claim agent, which, it is claimed, show that at various points before the deceased reached the crossing he might have seen the headlight of the approaching train if he had turned and looked. But it is obvious enough that these photographs were taken only at the points from which the train could be seen, and not at any of the points along the road from which the train could not be seen, and particularly was no photograph taken from the point in the highway where it descends to and crosses the railroad track. The photographs were taken some time after the accident, and in daylight, and from points of view chosen by the defendant. Having been taken under such widely varying conditions from those surrounding the deceased at the time of the accident, they fall far short of furnishing the clear and satisfactory evidence essential to establish the defense of contributory negligence. Courts have had frequent occasion to consider this character of evidence, and comment on its inconclusive and unsatisfactory character, in this class of cases. Miller v. Truesdale, 56 Minn. 274, 57 N. W. 661; Hutchinson v. St. Paul Ry. Co., 32 Minn. 401, 21 N. W. 212; Kellogg v. N. Y. C. & H. R. R. Co., 79 N. Y. 77; Massoth v. Delaware & Hudson Canal Co., 64 N.. Y. 524.

The rules governing the rights and duties of travelers and railway trains at grade crossings are clearly defined by the Supreme Court of the United States in Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403, and Texas & Pacific Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186, and by this court in St. Louis & S. F. Ry. Co. v. Barker, 23 C. C. A. 475, 77 Fed. 810. In the first of these cases the Supreme Court, speaking by Mr. Justice Bradley, says:

"The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. On the other hand,

those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case."

And it is further said in the same case:

"Conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with and conditioned upon the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition."

And in Texas & Pacific Ry. Co. v. Gentry, supra, the court, speaking by Mr. Justice Harlan, says:

"Whether he [the deceased] did or did not stop and look and listen for approaching trains the jury could not tell from the evidence. The presumption is that he did; and, if the court had given the special instructions asked, it would have been necessary to accompany it with the statement that there was no evidence upon the point, and that the law presumed that the deceased did look and listen for coming trains before crossing the track."

No one was with the deceased or witnessed his movements, and the presumption prevails that he exercised ordinary care in approaching this crossing, and that he would not have been killed but for the culpable negligence of the defendant in neglecting to give the required timely warning of the train's approach. The conditions prevailing at this crossing at the time of the accident were such as to make it imperatively necessary for the safety of travelers for the railway train to give the statutory signals of its approach.

The rule is well settled that where the accident results in instant death, as it did in this case, "the law, out of regard to the instinct of self-preservation, presumes the deceased was at the time in the exercise of due care, and this presumption is not overthrown by the mere fact of injury. The burden rests upon the defendant to rebut this presumption." Flynn v. Railroad Co., 78 Mo. 195, 212, 47 Am. Rep. 99.

The presumption arising from this natural instinct of self-preservation stands in the place of positive evidence, and is sufficient to warrant a recovery, in the absence of countervailing testimony. Johnson v. Railroad Co., 20 N. Y. 65, 69, 75 Am. Dec. 375; Oldfield_v. N. Y. & Harlem R. Co., 14 N. Y. 310; Adams v. Iron Cliffs Co. (Mich.) 44 N. W. 270, 18 Am. St. Rep. 441; Railway Co. v. State, 29 Md. 420, 438, 96 Am. Rep. 545; Railroad Co. v. Nowicki, 46 Ill. App. 566; The City of Naples, 32 U. S. App. 613, 16 C. C. A. 421, 69 Fed. 794; Allen v. Willard, 57 Pa. 374; Schum v. Railroad Co., 107 Pa. 8, 52 Am. Rep. 468; Cox v. R. Co. (N. C.) 31 S. E. 848; Cameron v. Railway Co. (N. D.) 77 N. W. 1016. Nor is this presumption applied only when no one witnesses the accident. It has its application in all cases, and may be strong enough to overcome the testimony of an eyewitness. In the case of McGhee v. Kennedy's Adm'r, 66 Fed. 502, 13 C. C. A. 608, 31 U. S. App. 366, a witness testified that the deceased saw the train, and attempted to get over before it, and whipped up his horses to do so. The Circuit Court of Appeals states that, "if that were true, it would have been the duty of the court below to charge the jury to return a verdict for the receivers." But the court said:

"It is very improbable that, if Kennedy had seen the train coming, he would have attempted to cross when so far from the track that he could not reach it with his wagon wheels before the coming of the train. The presumption of fact, and of law, too, would be against the existence of such wanton and reckless negligence, and the plaintiff was entitled to have the jury weigh the credibility of Miss Caldwell's evidence in the light of the circumstances."

This principle has been repeatedly affirmed and applied by the Supreme Court of the United States. Railroad Co. v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Railwa, Co. v. Griffith, 159 U. S. 603, 610,