rash action, was a matter of fact and of degree properly left to the jury; 'the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt.'

Concluding, as we do, that the fact that the plaintiff, when she elected to descend the steps from her residence to reach the sidewalk, had knowledge of the existence of the uncovered water-box at the foot of the steps, was not alone sufficient to charge her with contributory negligence as a matter of law, it follows that the judgment below was erroneous if it rested upon such theory. But as the knowledge of the existence of the defective water-box would have been sufficient to impute contributory negligence per se, as a matter of law, if the hazard resulting therefrom to one seeking to pass over it from the steps was so great that no reasonably prudent person would have made the attempt, it remains only to consider the case in that aspect. Of course, from that point of view the question is, Did the facts proved as to the situation of the waterbox and the attempt of the plaintiff to step across it from the stoop so conclusively give rise to the inference of a want of ordinary care in making the attempt, that no reasonable mind could draw a contrary conclusion? This question is readily answered when it is seen that the undisputed fact was that the water-box at its outer edge was only about four inches from a line drawn from the tread of the step nearest the sidewalk to the ground. Whilst it is true that the undisputed proof was that the plaintiff was aware of a danger from the box when she sought egress from her residence, and judged that a longer step than usual would be required to cross over it, it cannot be in reason said that all reasonable minds must draw the conclusion that contributory negligence, necessarily, as a matter of law, resulted from the act of attempting to step over the box to the sidewalk. This is especially so in view of the undisputed testimony given by the plaintiff that she was keeping the water-box in mind and was exercising all possible care, and had on previous occasions safely stepped over the

box. This condition of proof, we think, made a case proper to be passed upon by the jury.

The conclusion just stated is not affected by the contention that when the plaintiff reached the tread of the last step she might by stepping to one side or the other have avoided the water-box, and, therefore, as she elected to cross over the box, she was guilty of contributory neglect. This but reiterates in another form, the proposition that by electing to use the steps to reach the sidewalk with knowledge of the existence of the water-box contributory negligence as a matter of law resulted. The act of attempting to step from the tread of the last step over the water-box is to be tested by the general principle governing the right to use a highway with knowledge of a defect therein. Coming to apply such principle, the question is this, Was the situation of the water-box and the hazard to result from an attempt to step over it so great that the plaintiff, with the knowledge of the situation, could not, as a reasonably prudent person, have elected to step across the box instead of stepping to the sidewalk from either side of the tread of the last step? And this, we think, was, under the undisputed proof, a question for the jury and not for the court.

The judgment of the Court of Appeals of the District of Columbia is reversed, with instructions to that court to reverse the judgment of the Supreme Court of the District of Columbia, and to grant a new trial.

MR. JUSTICE BREWER, MR. JUSTICE BROWN and MR. JUSTICE PECKHAM, dissent.

191 U. S.

Opinion of the Court.

MCLOUGHLIN v. RAPHAEL TUCK CO.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 73. Argued November 11, 12, 1903.-Decided November 30, 1903.

The penal provisions of § 4693, R. S., as amended by the act of March 3, 1891, had no extraterritorial operation and did not embrace the act of affixing in a foreign country to a publication, a false statement that it was copyrighted under the laws of the United States.

Prior to the amendment of March 3, 1897, there was no provision in the copyright laws forbidding the importation into, or the sale after its importation within, the United States of an article falsely stamped with the copyright notice in a foreign country and the proviso in the amending act expressly saved the right to sell such an article if it had been imported prior thereto.

THE facts are stated in the opinion.

Mr. A. Bell Malcomson for plaintiff in error.

Mr. Harold Binney for defendant in error. Mr. Louis C. Raegener was on the brief.

MR. JUSTICE WHITE delivered the opinion of the court.

Section 4963 of the Revised Statutes, as amended by the act of March 3, 1891, relating to the notice of copyright to be affixed to copyrighted articles, provided as follows:

"Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic, or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States."

On March 3, 1897, the foregoing provisions were amended, 29 Stat. 694, c. 392, by the following:

"Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, photograph, chromo, or lithograph or other article bearing such notice of copyright or words of the same purport, which is not copyrighted in this country, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty and one-half to the use of the United States; and the importation into the United States of any book, chromo, lithograph, or photograph, or other article bearing such notice of copyright, when there is no existing copyright thereon in the United States, is prohibited; and the Circuit Courts of the United States sitting in equity are hereby authorized to enjoin the issuing, publishing, or selling of any article marked or imported in violation of the United States copyright laws, at the suit of any person complaining of such violation: Provided, That this act shall not apply to any importation of or sale of such goods or articles brought into the United States prior to the passage hereof."

The state of the law prior to 1897, pertinent to this case, was therefore this: A penalty was imposed of $100 for untruthfully impressing upon an article which was subject to be copyrighted in the United States the fact that the same had been copyrighted, but there was no provision or penalty concerning the importation from a foreign country of an article which was untruthfully stamped in such country as having been copyrighted in the United States, and no express provision or penalty concerning the sale of an article in the United States which was untruthfully stamped as copyrighted. The amendment

of 1897 caused the previous provision as to untruthfully stamping a notice of copyright to apply, although the article was not subject to copyright under the law of the United States, and prohibited the importation of an article untruthfully stamped from a foreign country, and also prohibited the sale of an article in the United States which was falsely stamped, the penalty previously provided being made applicable to the added prohibitions.

The plaintiff in error in 1898 commenced this action in the Circuit Court of the United States against the defendant in error, to recover the $100 penalty, provided in the statute, for each of eighty-three alleged distinct violations of the statute. The basis of the first to the seventieth cause of action was asserted to be that on or about the first day of August, 1896, the defendant, "at the city of New York, in the State of New York, did publish and issue a certain picture book or booklet" (a distinct article being named in the statement of each of the seventy distinct causes of action) "and in and upon said book did knowingly insert and impress a false and fictitious notice that the same was copyrighted. The seventy-first

and seventy-second causes of action charged that the defendant on the eleventh day of June, 1897, in the city of New York, "did knowingly issue and sell a certain picture book," described therein, with a false notice of copyright stamped on it. The seventy-third to the eighty-third and last cause of action charged the commission as to different publications, of like acts, in the city of New York on or about April 26, 1897.

On the trial to a jury the defendant admitted that all the publications referred to had on them an untruthful statement that they had been copyrighted under the laws of the United States, which statement had been affixed in a foreign country at their request and for their account. It was also proved by the defendant, without conflict in the testimony, that all the publications having on them the untruthful statement of copyright were imported into the United States prior to the enactment of the amendment of 1897. Under this state of