US SUPREME COURT DECISIONS

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 chanrobles.com-red

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 chanrobles.com-red

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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 chanrobles.com-red

Page 144 U. S. 468

excessive. On the 24th of June, 1891, Judge Coxe filed an opinion, 46 F.5d 1, 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.8d 1. 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. chanrobles.com-red

Page 144 U. S. 471