A suit was brought in the supreme court of New York against a
railroad corporation created by an act of Congress to recover
damages for personal injuries sustained by the plaintiff, who was a
laborer on the road, from the negligence of the defendant. The suit
was removed by the defendant into a circuit court of the United
States on the ground that it arose under the act of Congress. It
was tried before a jury, and resulted in a verdict and judgment for
the plaintiff for $4,000. The defendant took a writ of error from
the circuit court of appeals, which affirmed the judgment. On a
writ of error taken by the defendant from this Court to the circuit
court of appeals, a motion was made by the plaintiff to dismiss or
affirm:
Held:
(1) Under § 6 of the Act of March 3, 1891, c. 517, 26 Stat.
826, the writ would lie, because the jurisdiction of the circuit
court was not dependent entirely on the fact that the opposite
parties to the suit were one of them an alien and the other a
citizen of the United States, or one of them a citizen of one state
and the other
Page 144 U. S. 466
a citizen of a different state, but was dependent on the fact
that, the corporation being created by an act of Congress, the suit
arose under a law of the United States, without reference to the
citizenship of the plaintiff.
(2) The decision of the circuit court of appeals was not final,
nor in effect made final by the act of 1891, as in
Lau Ow Bew
v. United States, 144 U. S. 47.
(3) As it did not appear by the record that on the trial in the
circuit court the defendant made any objection to the jurisdiction
of that court, and the petition for removal recognized the
jurisdiction, it could not be said as a ground for the motion to
dismiss that the defendant might have taken a writ of error from
this Court to the circuit court under § 5 of the said act of
1891, and had, by failing to do so, waived its right to a review by
this Court.
(4) There was color for the motion to dismiss, and the judgment
must be affirmed on the ground that the writ was taken for delay
only.
(5) The main defense was contributory negligence on the part of
the plaintiff, and the court charged the jury that they had the
right to take into consideration the fact that the foreman of the
defendant told the plaintiff it was safe for him to cross at the
time the bridge where the accident took place, through the
plaintiff's being struck by a locomotive engine while he was
crossing the bridge on foot. The question was fairly put to the
jury, as to the alleged contributory negligence. The case was one
for the jury.
On February 11, 1890, Dominick Amato brought an action in the
Supreme Court of the State of New York in the County of New York
against the Northern Pacific Railroad Company, a corporation
created by an Act of Congress approved July 2, 1864, c. 217, 13
Stat. 365. The summons in the action was duly served on the
defendant, and it appeared by attorney.
The complaint stated that the plaintiff was a resident of the
City and County and State of New York; that on or about November 6,
1888, in or near the County of Burleigh, in the then Territory of
Dakota, now State of North Dakota, through the negligence of the
defendant and without negligence on his part, he was run over by an
engine owned and operated by the defendant, from which he sustained
injuries which caused him the loss of his leg; that on account of
said injuries, he was confined in a hospital for 7 1/2 months, and
had sustained permanent injuries which made him unable to work, and
had
Page 144 U. S. 467
been damaged thereby in the sum of $25,000, and that he demanded
judgment against the defendant for that sum.
On the 13th of March, 1890, the defendant filed, in the supreme
court of the State of New York, a petition in due form setting
forth that the action was a suit of a civil nature arising under
said act of Congress, accompanied this with a proper bond, and
prayed that the suit be removed into the Circuit Court of the
United States for the Southern District of New York. The supreme
court of the state made an order, on the 21st of March, 1890,
approving the bond and removing the cause into the said circuit
court, and staying all further proceedings therein in the state
court.
A certified copy of the record being filed in the circuit court,
the defendant put in its answer in that court, setting forth that
on or about November 5, 1888 at or near the east end of its bridge
which extends across the Missouri River from Burleigh County to
Morton County in North Dakota, the plaintiff, who at the time was a
laborer on its road, attempted without any right or authority to do
so to get or jump upon the footboard at the front end of a
locomotive engine, the property of the defendant, while the same
was in motion, that he slipped and fell, and one of his legs was
run over by one of the wheels of the engine; that the defendant,
its agents and servants, were using due care and diligence in
running said locomotive at the time of the accident, which was not
due to any negligence on the part of the defendant, its agents or
servants, but was owing to the negligence and fault of the
plaintiff himself, and that that was the matter referred to in the
complaint, and the answer denies each and every allegation in the
complaint contained not thereinbefore specifically admitted.
The case was tried by a jury in April, 1891, before Judge Coxe,
and resulted in a verdict for the plaintiff for $4,000. On May 28,
1891, a judgment was entered for the plaintiff for the $4,000, with
$26.66 interest and $33.10 costs, amounting in all to $4,059.76. A
motion was afterwards made before Judge Coxe to set aside the
verdict as contrary to law and against the weight of evidence, and
because the damages were
Page 144 U. S. 468
excessive. On the 24th of June, 1891, Judge Coxe filed an
opinion, 46 F. 561, denying the motion. A bill of exceptions was
duly made and signed July 16, 1891, and filed July 22, 1891.
A writ of error to review the judgment, returnable August 20,
1891, was duly sued out by the defendant from the Circuit Court of
Appeals for the Second Circuit. The plaintiff moved in that court
to dismiss the writ of error for want of jurisdiction. On the 25th
of January, 1892, an order was entered in that court denying the
motion to dismiss and affirming the judgment of the circuit court
and ordering that a mandate issue to the latter court directing it
to proceed in accordance with the decision and order of the circuit
court of appeals. 49 F. 881. An opinion, on the affirmance by the
circuit court of appeals, was delivered by Judge Lacombe, and is
set forth in the record.
On the 20th of February, 1892, the defendant sued out a writ of
error from this Court, which was allowed by an Associate Justice of
this Court, to review the judgment of the circuit court of appeals,
and the transcript of the record has been duly filed in this Court.
The plaintiff now moves to dismiss the writ of error and to affirm
the judgment.
Page 144 U. S. 471
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The first ground urged for the motion to dismiss is that, under
the Act of March 3, 1891, c. 517, 26 Stat. 826, the writ of error
will not lie. That act provides, in § 6, that the circuit
courts of appeals established by it shall exercise appellate
jurisdiction to review, by appeal or by writ of error, "final
decision" in the existing circuit courts in all cases other than
those provided for in § 5 of the act, unless otherwise
provided by law, and that
"the judgments or decrees of the circuit courts of appeals shall
be final in all cases in which the jurisdiction is dependent
entirely upon the opposite parties to the suit or controversy,
being aliens and citizens of the United States, or citizens of
different states."
The present case is not one provided for in § 5 of the act,
and the judgment of the circuit court was not directly reviewable
by this Court under § 5, nor was the judgment of the circuit
court of appeals final in this case, because the jurisdiction of
the circuit court was not dependent entirely upon the fact that the
opposite parties to the suit were one of them an alien and the
other a citizen of the United States, or one of them a citizen of
one state and the other a citizen of a different state. The
jurisdiction of the circuit court in this case depended upon the
fact that, the defendant being a corporation created by an act of
Congress, the suit arose under a law of the United States, without
reference to the citizenship of the plaintiff. His citizenship is
not mentioned in the complaint or in the petition for removal, and
that petition states that the action arises under the act of
Congress. Nor was the decision of the circuit court of appeals in
effect made final, as in
Lau Ow Bew v. United States,
144 U. S. 47.
Page 144 U. S. 472
Section 6 of the act of 1891 provides that in all cases not
thereinbefore, in that section, made final,
"there shall be of right an appeal, or writ of error, or review
of the case by the Supreme Court of the United States, where the
matter in controversy shall exceed one thousand dollars besides
costs."
Under that provision, as the judgment of the circuit court of
appeals in the present case was not made final by § 6, and as
the matter in controversy exceeds $1,000 besides costs, the
defendant had a right to a writ of error from this Court.
We do not think there is anything inconsistent with this view in
what was said by this Court in
McLish v. Roff,
141 U. S. 661, or
in
Chicago, St. Paul & Omaha Railway v. Roberts,
141 U. S. 690.
In the circuit court of appeals, the defendant, by its fifth
assignment of error, took the point that the circuit court had no
jurisdiction of its person or of the subject matter of the action,
and on the present writ of error from this Court, the first
assignment of error, filed in the circuit court of appeals and sent
up as part of the record, assigns as error the several errors set
out in the assignment of errors before the circuit court of
appeals. The plaintiff therefore contends on this motion that as,
under § 5 of the act of 1891, the jurisdiction of the circuit
court was in issue, the case might have been brought by a writ of
error directly from the circuit court to this Court. But it does
not appear by the record that on the trial, the defendant made any
objection to the jurisdiction of the circuit court. On the
contrary, its petition for removal states that the action had been
brought against it, and that the complaint had been duly served on
it, and that the defendant had duly appeared. And even if a writ of
error from this Court to the circuit court could have been taken,
yet, as the defendant did not take such a writ of error, but took
one from the circuit court of appeals to the circuit court, the
plaintiff cannot be heard to assert as the ground of this motion
the fact that the defendant might have taken a writ of error from
this Court to the circuit court. Equally it cannot be said as a
ground for this motion that the case is one which involved in the
circuit court the construction
Page 144 U. S. 473
or application of the Constitution of the United States on the
ground that the question arose whether the act of Congress
incorporating the defendant was constitutional. Nor can it be
objected as a ground for this motion that the defendant has waived
its right to a review by this Court because it failed to take a
writ of error from this Court to the circuit court to review the
judgment of the latter court.
But although this Court has jurisdiction of this writ of error,
we are of opinion that, under clause 5 of Rule 6 of this Court, the
judgment of the circuit court of appeals must be affirmed on the
ground that there was color for the motion to dismiss and that the
writ was taken for delay only.
The bill of exceptions in the circuit court shows that the
plaintiff was sworn as a witness and that, after he had given his
testimony, he rested, and then the defendant's counsel moved to
dismiss the complaint on the ground that the plaintiff, upon his
testimony, was shown to be guilty of contributory negligence. The
motion was denied, and the defendant excepted. The defendant then
called several witnesses, who were in its employ and who testified
that the plaintiff was injured at a point 110 feet east of the east
end of the bridge, while attempting to jump on the front footboard
of a moving locomotive, and that this occurred on the evening of
November 5, 1888. The testimony of all but one of those witnesses
for the defendant was taken by deposition in Dakota, and, except
that one, they were not cross-examined.
The testimony of the plaintiff was that the accident happened
while he was crossing a railroad bridge near Bismarck, in North
Dakota, on November 6, 1888; that he was a laborer on the
defendant's railroad, and was at work fixing up the track near the
west end of the bridge; that he lived near the east end of the
bridge; that the custom of the company was to take the men home
from their work on a car drawn by a locomotive over the bridge from
the west to the east end at about half past 5 o'clock in the
afternoon; that he had never crossed the bridge before; that, on
the afternoon of the 6th of November, "the English boss" told the
laborers, about 56 in number, of whom the plaintiff was one, that
there would be
Page 144 U. S. 474
no train to take them across the bridge that night, and that
they would have to walk across; that the boss said that no train or
engine would come over the bridge until about 7 or half past 7;
that the plaintiff started to walk across the bridge with the other
laborers at about half past 5 or 6 o'clock P.M., but, in
consequence of a pain in his side, the result of a fall a week
previous, he was not able to keep up with the others, and fell
behind, and walked over the bridge by himself; that there was but
one track on the bridge, and he was walking on that track; that he
could not walk at the side of the track without crawling from one
trestle to another; that the engine came on the bridge from the
east, meeting him about its middle; that there was room on the
bridge to allow him to step aside and let the engine pass if he had
seen it coming; that it was coming in front of him, right around
the turn, but he could not see it; that he did not see it until it
was on top of him; that he then tried to get out of the way, but
slipped on the track, which was slightly frozen, and fell, and
caught his leg under the wheel, and the engine passed over it, and
his leg was cut off; that he remained in the hospital 7 1/2 months,
and had not been able to work since, and that before the accident
he earned $1.50 a day.
On cross-examination, he testified that if he had seen the
locomotive coming, he would have stepped to one side, out of the
way, but he did not see it because it was coming around the curve,
and that he never thought of the locomotive, because the boss told
him there was nothing to come across, and he was walking at his
ease, without thinking of anything. He further testified that he
did not attempt to jump on a moving locomotive at the east end of
the bridge.
At the close of the testimony on both sides, the defendant moved
that the court direct a verdict for it on the ground that the
plaintiff had been guilty of contributory negligence in walking
across the bridge in the manner he did, and also upon the ground
that he was a trespasser on the bridge, and it was necessary for
him to prove gross negligence on the part of the defendant. The
motion was denied, and the defendant excepted.
The court, in its charge, put the question fairly before the
Page 144 U. S. 475
jury, and, among other things, told them that on the question
whether it was a prudent thing for the plaintiff to walk across the
bridge in the manner he did and not see the engine approaching
until it was directly upon him, they had the right to take into
consideration the statement which he said was made to him by the
boss, that it was safe for him to cross at that time, and that no
engine would cross the bridge until about half past 7 o'clock. To
that portion of the charge the defendant excepted, but not to any
other portion.
We concur with the view of Judge Coxe, in his opinion on the
motion to set aside the verdict, that the question of the
plaintiff's negligence was one of fact, and was submitted to the
jury under instructions as favorable to the defendant as it could
expect, and that the testimony of the plaintiff that the boss or
foreman of the defendant had told him that no train or engine would
come over the bridge until about 7 or half past 7 o'clock was
properly to be taken into consideration by the jury in determining
the question whether the plaintiff was negligent in not seeing the
engine.
We concur also with the view of the circuit court of appeals, in
the opinion of that court given by Judge Lacombe, that it was
fairly a question for the jury to determine whether or not it was
negligence on the part of the plaintiff not to keep a lookout for a
coming engine, in view of the assurance of the boss that there was
none to come, and that the case is quite within the decisions in
Bradley v. New York Central Railroad, 62 N.Y. 99, and
Oldenburg v. New York Central Railroad, 124 N.Y. 414.
The judgment is affirmed, and the cause remanded to the
Circuit Court of the United States for the Southern District of New
York for further proceedings, as required by § 10 of the Act
of March 3, 1891, 26 Stat. 829.
MR. JUSTICE BREWER and MR. JUSTICE BROWN dissented on the ground
that the circuit court should have directed a verdict for the
defendant because the plaintiff had been guilty of contributory
negligence.
