« ΠροηγούμενηΣυνέχεια »
What, then, is the relation in which the railway company, as an appeilant, stands towards the city of Kansas in this litigation? Clearly, it has two distinct issues, or grounds of controversy: First, the value of its property taken for the street; secondly, the amount of benefit which the widening of the street will create to its remaining property, not so taken. It may have a third issue, and, judging from the course of the argument, it has a third issue, still more important to it than either of the others, to-wit, the right of a city to open a street at all across its depot grounds. Now this controversy, involving these three issues, is a distinct controversy between the company and the city. It may be settled in the same trial with the other appeals, and by a single jury; but the controversy is a distinct and separate one, and is capable of being tried distinctly and separately from the others. If the state circuit court had equity powers, it might direct a separate issue for the trial of this controversy by itself. It might try the other appeals without a jury, (the parties waiving a jury,) and try this controversy by a jury.
If this view of the subject is correct, we see no difficulty in removing the controversy between the city of Kansas and the railway company for trial in the circuit court of the United States. The proceedings for widening the street, pending in the state court, may have to await the decision of the case in the federal court; and the result of those proceedings may be materially affected by the decision of that case; but that consideration does not affect the separate and distinct character of the controversy between the city and the railway company, although it might raise a question of proper parties in a pure chancery proceeding as between the city and the company. This controversy is to all intents and purposes "a suit." The indirect effect upon the general proceedings for widening the street which would ensue in case the federal court should determine that the city of Kansas had no right to widen the street in the company's depot grounds, or that the valuation of its property was much too small, or the assessment for benefits against it was much too large, furnishes no good reason for depriving the company of its right to remove its suit into a United States court. We think that the case was removable to that court under the act of March 3, 1875.
This disposes of all the cases now before us, and renders it unnecessary to inquire whether the allegations in the several petitions of removal were, or were not, sufficient to bring the case within the 640th section of the Revised Statutes; or whether this section still remains in force.
The judgments are reversed in all the cases, and the causes will be remanded, with instructions to enter judgment in accordance with this opinion.
WAITE, C. J., dissenting. I am unable to agree to these judgments. In my opinion congress did not intend to give the words "arising under the constitution or laws of the United States," in the act of 1875, the broad meaning they have when used by Chief Justice MARSHALL in the argument of the opinion in Osborn v. Bank of U. S. I do not doubt the power of congress to authorize suits by or against federal corporations to be brought in the courts of the United States. That was decided in Osborn's Case, and with it I have no fault to find. Neither do I doubt that congress did, in the charters under which these corporations exist, authorize suits by or against them to be brought in the courts of the United States as well as in the courts of the states; but I cannot believe that, if the charters had given jurisdiction to the courts of the United States in only a limited class of actions, and had provided that in all others the suits must be brought in the courts of the proper state, the act of 1875 would have extended the jurisdiction of the courts of the United States to all suits by or against such corporations when the value of the matter in dispute exceeded $500.
The acts of incorporation made no provision for the removal to the courts of the United States of suits begun in a state court. The act of July 27, 1868, c. 255, § 2, (15 St. 227,) now section 640 of the Revised Statutes, did, however,
give authority for that purpose in suits brought against the company in a state court "upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the constitution, or of any treaty or law of the United States." If all suits by or against, and all defenses by, a federal corporation necessarily arise under the laws of the United States "because the charter of incorporation not only creates it, but gives it every faculty which it possesses," why require the corporation, when asking for a removal, to cause an oath to be filed with its petition that it has a defense in the suit which arises under the constitution or laws? If, "because the power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter a law of the United States," every suit by or against, and every defense to such a suit by, a federal corporation must arise under the laws of the United States, why require it to set forth in its petition for removal that its defense does arise under such a law? If such a corporation cannot "have a case which does not arise literally, as well as substantially, under the law," what is the necessity for saying more than that it is such a corporation?
The act of 1868 (section 640) related specifically to this class of corporations and this class of suits, and it shows distinctly that the words "arising under the laws of the United States" were there used in a restricted sense. I see no evidence of any intention by congress to use them in any other sense in the act of 1875, when applied to the same kind of suits and to the same kind of corporations.
I am authorized to say that Mr. Justice MILLER unites with me in this dissent.
(114 U. S. 615)
SCHOFIELD v. Chicago, M. & ST. P. RY. Co.1
(May 4, 1885.)
1. RAILROAD COMPANY-DUTY OF PARTY CROSSING TRACKS.
The doctrine laid down in Railroad Co. v. Houston, 95 U. 8. 697, cited and applied to the facts of this case.
Where a person, in a sleigh drawn by one horse, on a wagon road, approaching a crossing of a railroad track, with which he was familiar, could have seen a coming train, during its progress through a distance of 70 rods from the crossing, if he had looked from a point at any distance within 600 feet from the crossing, and was struck by the train at the crossing and injured, he was guilty of contributory negligence, even though the train was not a regular one, and was running at a high rate of speed, and did not stop at a depot 70 rods from the crossing in the direction from which the train came, and did not blow a whistle or ring a bell between the depot and the crossing.
8. SAME-DIRECTING VERDICT.
On these facts, it was proper for the trial court to direct a verdict for the defendant.
In Error to the Circuit Court of the United States for the District of Minnesota.
Chas. E. Flan
John B. Sanborn and S. L. Pierce, for plaintiff in error. Arau, for defendant in error. BLATCHFORD, J. This is an action brought by William R. Schofield against the Chicago, Milwaukee & St. Paul Railway Company, in a state court of Minnesota, and removed by the defendant into the circuit court of the United States for the district of Minnesota. It was tried before a jury, and, after the plaintiff had rested his case, the jury, under the instruction of the court, rendered a verdict for the defendant. The suit was one to recover damages for personal injuries to the plaintiff, caused by his being struck by a train
1 S. C. 8 Fed. Rep. 488.
running on the railroad of the defendant, while the plaintiff, in a sleigh drawn by one horse, was endeavoring to cross the track, on the thirteenth of February, 1881, at Newport, in Minnesota. The train was running north, on the east bank of the Mississippi river, through Newport, to St. Paul, about 4 o'clock in the afternoon, in daylight, on Sunday. The track was straight from the crossing to a point 2,320 feet south of it, and the country was flat and open. The plaintiff was himself driving, with a companion in the sleigh, in a northerly direction, on a wagon road which ran in the same general course with the railroad, and to the west of it, and attempted to cross it from the west to the east, as the train approached from the south. The crossing was 70 rods to the north of the depot at Newport. Opposite the depot, the wagon road was 280 feet distant to the west of the depot. The plaintiff had a slow horse, and was following the beaten track in the snow. When he arrived at a point in the wagon road 600 feet from the crossing, he could there, and all the way from there till he reached the crossing, have an unobstructed view of the railroad track to the south, and of any train on it, from the crossing back to the depot; and, when he reached a point in the wagon road 33 feet from the crossing, he could have an unobstructed view to a considerable greater distance southward beyond the depot. The evidence shows that, if the train had passed the depot when the plaintiff was at a point 600 feet, or any less number of feet, from the crossing, he could not have failed to see the train, if he had looked for it; and that, if the train had not reached the depot, when the plaintiff arrived at a point 33 feet from the crossing, he could not at that point, or at any point in the 33 feet, have failed to see the train beyond and to the south of the depot, if he had looked for it. When the train passed the depot the plaintiff was at least 100 feet from the crossing. The train consisted of a locomotive engine and seven or eight cars. The engine whistled at a point 4,300 feet south of the depot, which was the whistling place for that depot. The wind was blowing strongly from north to south. The man in company with the plaintiff was killed by the accident, as was the horse. The plaintiff resided in the neighborhood, and was familiar with the crossing. After the accident, the men, horse, and sleigh were found on the west side of the railroad, showing that they had been struck as they were entering on the crossing. The train was not a regular one, and no train was due at the time of the accident; it was moving at a high rate of speed; it did not stop at the depot; and it gave no signal by blowing a whistle, or ringing a bell, after it passed the depot.
The ground upon which the circuit court directed a verdict for the defendant (2 McCrary, 268, S. C. 8 Fed. Rep. 488) was that the plaintiff, by his own showing, was guilty of contributory negligence, whatever negligence there may have been on the part of the defendant. Applying the test, that, if it would be the duty of the court, on the plaintiff's evidence, to set aside, as contrary to the evidence, a verdict for the defendant, if given, the court had authority to direct a verdict for the defendant, it considered the case under the rules laid down in Continental Improvement Co. v. Stead, 95 U. S. 161, and especially in Railroad Co. v. Houston, Id. 697, and arrived at the conclusions of law that neither the fact that the train was not a regular one, nor the fact of its high rate of speed, excused the plaintiff from the duty of looking out for a train; that the fact that it did not stop at the depot could avail the plaintiff only on the view that, hearing a whistle from it, as it was south of the depot, he supposed it would stop there, and so failed to look, but that, in such case, he would have been negligent, because it was not certain the train would stop at the depot, and he would have had warning that a train was approaching; that the neglect of the train to blow a whistle or ring a bell between the depot and the crossing did not relieve the plaintiff from the duty of looking back, at least as far as the depot, before going on the track; and that, in view of the duty incumbent on the plaintiff to look for a coming train before going so near to the track as to be unable to prevent a collision, and of the
(114 U. S. 654)
fact that he was at least 100 feet from the crossing when the train passed the depot, and could then have seen it if he had looked, and have avoided the accident by stopping until it had passed by, he was negligent in not looking.
These conclusions of law approve themselves to our judgment, and are in accordance with the rules laid down in the cases referred to. In Railroad Co. v. Houston it was said: "The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employes, in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant." The court added that an instruction to render a verdict for the defendant would have been proper. These views concur with those laid down by the supreme court of Minnesota in Brown v. Milwaukee Ry. Co. 22 Minn. 165, and are in accord with the current of decisions in the courts of the states. It is the settled law of this court that, when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is insufficient to support a verdict for the plain-* tiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U. S. 319; Bowditch v. Boston, 101 U. S. 16; Griggs v. Houston, 104 U. S. 553; Randall v. Baltimore & Ohio R. Co. 109 U. S. 478; S. C. 3 SUP. CT. REP. 322; Anderson Co. Com'rs v. Beal, 113 U. S. 227; S. C. ante, 433; Baylis v. Travelers' Ins. Co. 113 U. S. 316; S. C., ante, 494. This rule was rightly applied by the circuit court to the present case. Judgment affirmed.
CANAL & CLAIBORNE STREETS R. Co., Garnishee, v. HART.
(May 4, 1885.)
1. REMOVAL OF Cause-Rev. ST. § 639, CL. 3-AFFIDAVIT-Petition.
A suit was commenced in a state court, November 4th, as No. 4,414. A petition by the plaintiff, to remove it into the circuit court of the United States, was filed the next day, entitled in the suit as No. 4,414, signed by his attorneys, not sworn to, referring to the suit as commenced, and asking for a removal under subdivision 3 of section 639 of the Revised Statutes, and stating facts showing a right to a removal, not only under that subdivision, but also under section 2 of the act of March 3, 1875, (18 St. 470,) and accompanied by an affidavit, made by the plaintiff 11 days before, stating that "he is the plaintiff" in the suit, as No. 4,414, and giving its title, and the name of the court, and alleging "that he has reason to believe, and does believe, that, from prejudice and local influence, he will not be able to obtain justice in said state court." The state court ordered the cause to be removed, and the circuit court refused, on motion of the defendant, to remand it. Held, (1) the affidavit was sufficient for a removal under subdivision 3 of section 639; (2) the petition made out a case for a removal under the act of 1875; (3) the absence of an oath to the petition was, at most, only an informality, which the defendant waived by not taking the objection on the motion to remand."
2. MOTION IN ARREST OF JUDGMENT-LOUISIANA CODE OF PRACTICE, ART. 246.
H., having obtained a money judgment against the city of New Orleans, in the circuit court of the United States for the Eastern district of Louisiana, filed in that court a supplemental petition and interrogatories, in accordance with the second paragraph of article 246 of the Code of Practice of Louisiana, added by the act of March 30, 1839, against a street railroad corporation, as a debtor to the city, praying that it be cited, as garnishee, and answer the interrogatories, and pay the judg
ment. The corporation was cited to answer, and did so, to the effect that it owed nothing to the city but some taxes. H. filed a traverse to the answers, in law and in fact, and it was tried before a jury, which found a verdict for the plaintiff, for a sum of money, on which judgment was rendered. Before it was signed, the corporation moved to expunge it and to arrest it, for specified reasons. The motion was overruled, a bill of exceptions was taken thereto, and judgment was signed. No bill of exceptions was taken in regard to the trial. Held, that the motion in arrest had no more effect than a motion for a new trial, and could not be reviewed on a writ of error.
The garnishment proceedings were warranted by section 916 of the Revised Statutes, being authorized by laws of Louisiana in force when section 916-formerly section 6 of the act of June 1, 1872, c. 255 (17 St. 197)—was enacted.
4. SUPPLEMENTARY PROCEEDINGS.
*The remedies supplementary to judgment, adopted by section 916, were those then provided by the laws of Louisiana in regard to judgments in suits of a like nature or class, and not the provisions of the act of the legislature of Louisiana, passed March 17, 1870, (Sess. Laws 1870, Extra Sess. Act No. 5, p. 10,) in regard to judgments against the city of New Orleans.
5. WRIT OF ERROR-QUESTIONS CONSIDERED.
Questions not raised on the trial before the jury, and saved by a bill of exceptions, cannot be considered by this court, on a writ of error.
In Error to the Circuit Court of the United States for the Eastern District of Louisiana.
J. R. Beckwith, for plaintiff in error. E. H. McCaleb and E. H. Farrar, for defendant in error,
BLATCHFORD, J. On the third of March, 1882, Judah Hart obtained a judgment, in the circuit court of the United States for the Eastern district of Louisiana, against the city of New Orleans, for $121,697.18, with 5 per cent. per annum interest thereon until paid, and costs, in a suit commenced by him in the civil district court for the parish of Orleans, and state of Louisiana, against the city, to recover the amount of sundry debts due by the city for labor done, services rendered, and materials furnished, which debts the creditors had assigned to him. The suit was removed into the circuit court of the United States by the plaintiff, and a motion made to that court to remand it was denied.
On March 15, 1882, the plaintiff filed in the circuit court a supplemental petition and interrogatories, in accordance with the second paragraph of article 246 of the Code of Practice of Louisiana, added by the act of March 30, 1839, averring that he had issued a writ of fl. fa. in the suit, and having reason to believe that the Canal & Claiborne Streets Railroad Company, a corporation organized under the laws of Louisiana, was indebted to the defendant in execution, or had property or effects in possession or under control, belonging to said debtor, he had caused the seizure to be made in the hands of said third person, and prayed that it be cited and ordered to answer, under oath, the annexed interrogatories, and, after due proceedings, be condemned to pay the amount of the judgment and costs. The interrogatories, three in number, inquired in various forms as to whether the corporation was indebted to the city or had any of its property. The court made an order that the corporation be made a garnishee, and be cited to answer the interrogatories, under oath. A citation was issued by the court and served on the corporation, requiring it to declare, on oath, what property or effects belonging to the city it had in its possession or under its control, or in what sum it was indebted to the city, and also to answer the interrogatories in writing, under oath, within 10 days after service of the citation, and stating that, otherwise, judgment would be entered against it for the amount claimed by the plaintiff, with interest and costs. It was also served with copies of the petition, interrogatories, and order of court, and with "notices of garnishee.
On the twenty-fifth of March, 1882, the corporation, without filing any exception, plea, or demurrer, filed the following answer, entitled in the suit against the citv: