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Statement of the Case.

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 therein before specifically admitted.

The case was tried by a jury, in April, 1891, before Judge Coxe, and resulted in a verdict for the plaintiff, for $4000. On May 28, 1891, a judgment was entered for the plaintiff for the $4000, with $26.66 interest and $33.10 costs, amounting in all to $4059.76. 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

Motion to Dismiss.

excessive. On the 24th of June, 1891, Judge Coxe filed an opinion, (46 Fed. Rep. 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. An opinion, on the affirmance by the Circuit Court of Appeals, was delivered by Judge Lacombe, and is set forth in the record. 1 U. S. App. 113.

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.

Mr. Roger Foster in support of the motion to dismiss.

I. The court will not construe the act creating Courts of Appeals literally and technically, but will give it a broad and liberal interpretation, consistent with its object, the relief of the Supreme Court, ut res magis valeat quam pereat.

Taken literally, section 5, which gives jurisdiction to the Supreme Court, amongst other cases, to “any case in which the jurisdiction of the court is in issue,” and section 6, which gives the Circuit Courts of Appeals jurisdiction only in “cases other than those provided for by the preceding section of this act unless otherwise provided by law,” would have excluded from the Circuit Courts of Appeals all cases in which the jurisdiction was put in issue by a denial of a difference of citizenship in the pleadings or otherwise. This court, however, gave

Argument against the Motion.

the act a construction, founded upon its intent rather than upon its literal language, in McLish v. Roff, 141 U. S. 661, 668.

II. This case is one in which the decision of the Circuit Court of Appeals is final. Section 6 decides that its jurisdiction “shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the controversy.” Here the jurisdiction depends upon the fact that the plaintiff is an alien and the defendant a corporation chartered by Congress, a citizen of the United States.

III. The final paragraph of section 6 of the act does not authorize a review by the Supreme Court of an order of a Circuit Court of Appeals.

The intention of that paragraph was to afford an omnium gatherum for any cases which had not been previously mentioned in section 5 or section 6, and to provide that in such cases, if any there were, there should be a review of the judgments or decrees of the Distriet or Circuit Courts, not of the Circuit Courts of Appeals, by the Supreme Court, where the matter in controversy exceeded one thousand dollars.

IV. The plaintiff in error has lost its right to a review of this judgment by the Supreme Court.

It appears by his fifth assignment of error in the Circuit Court of Appeals that “a question of jurisdiction is in issue.”

By failing to take a writ of error to the judgment of the Circuit Court from the Supreme Court immediately upon the entry of such judgment, and by electing to have a review of the whole case by the Circuit Court of Appeals, which has failed to certify any question to this court, the plaintiff in error has waived his right to a review here. McLish v. Roft, ubi supra.

V. If this court has jurisdiction of any writ of error in this case, the writ must run to the judgment of affirmance entered by the Circuit Court upon the mandate of the Circuit Court of Appeals, not to the order of the Circuit Court of Appeals that a mandate issue, after the mandate has issued and is filed in the Circuit Court.

Mr. A. H. Garland and Mr. H. J. May opposing.

Argument against the Motion.

P.M.

The motion to affirm should be denied, because the writ of error was not taken for delay, and the question upon which the jurisdiction depends is not frivolous.

The statement of the boss to Amato that no train would come over the bridge until a certain hour did not warrant Amato in walking over the bridge in the manner he did.

Under all the circumstances that statement was more of a warning than an assurance of safety. He said no train would come over until about 7 or 7.30.0

That was a notice that a train would come over about that time. The statement was that a train would come over about 7 or 7.30; that was a notice to Amato to be on the lookout before 7 P.M. Amato says

he started to walk over the bridge at about 5.30 or 6 P.m.; he probably put it quite as early as it was. Suppose he started at 6 P.M. He was lame and had to walk very slowly. The bridge measurements on the photograph show the bridge to be nearly half a mile long.. Thus a man, who, in conse quence of lameness, walks very slowly, is about to start at 6 P.M. to walk over a railroad bridge about half a mile long. He is told that a train will come over about 7 P.M. That statement was a warning to be on his guard, and not an assurance of safety excusing him from the obligation to watch and listen and warranting him in walking at his ease without thinking of anything

Under the circumstances it was Amato's duty to listen and to look, and not to walk carelessly into danger. Having omitted to use his senses and having walked thoughtlessly upon the track he was guilty of culpable negligence, that so far contributed to his injuries as to deprive him of any right to complain of the railroad company. Railroad Company v. Houston, 95 U. S. 697; Schofield v. Chicago, Milwaukee &c. Railway, 114 U. S. 615; Finlayson v. Chicago, Burlington &c. Railway, 1 Dillon, 579-584.

It having been shown by undisputed testimony that Amato's culpable negligence brought about the accident, and it not having been shown that the railroad company was guilty of any negligence, or failed to exercise such reasonable care and prudence as would, if exercised, have avoided the conse

Opinion of the Court.

quences of Amato's negligence, Amato was not entitled to recover, and the question was one of law to be decided by the court, and not of fact to be submitted to the jury. Railroad Company v. Houston, 95 U. S. 697; Schofield v. Chicago &c. Railway, 114 U. S. 615; Inland &c. Coasting Co. v. Tolson, 139 U. S. 551, 557.

MR. JUSTICE BLATCHFORD, after stating the case, 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 thę 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, 143 U. S. 47.

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