Supreme Court of United States.
*468 Mr. Roger Foster in support of the motion to dismiss.
Mr. A.H. Garland and Mr. H.J. May opposing.
*471 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 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, 143 U.S. 47.
*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 $1000 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 *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 *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 7½ 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 *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.
