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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 tlat 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 i 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
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 lookea, 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 tho 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 onitted 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, a 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; Grigys v. Houston, 104 U. $. 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.
(114 U. S. 654)
(May 4, 1885.)
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 theact 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 cir. cuit 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 or JUDGMENT-LOUISIANA CODE OF PRACTICE, ART. 246.
H., having obtained a nioney 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 216 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, pray. ing 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 plaintifï, 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 motio: was overruled, a bill of exceptions was taken thereto, and judgment was signed. Nabill of exceptions was taken in regard to the trial. Held, that the motion in arrest hud no more effect than a motion for a new trial, and could not be reviewed on a writ
of error. 8. SAME-GARNISHMENT.
The garnishment proceedings were warranted by section 916 of the Revised Statutes, being authorized by laws of Louisiana in force when section 916--formuerly section 6 of the act of June 1, 1872, c. 255 (17 St. 197)—was enacted. 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. 6. 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, oi demurrer, filed the following answer, entitled in the suit against the city:
"The Canal & Claiborne Streets Railroad Company, made garnished herein, now comes into court, and for answer to the interrogatories propounded, by and through its president, E. J. Hart, says: To first interrogatory, •No; except taxes of the year 1882.' To second interrogatory, •No; except taxes of the year 1882.' To third interrogatory, 'No.' And for a full and correct statement of the facts upon which the above answers are made, respondent, further answering, says that the privilege of the right of way of the said Canal & Claiborne Streets Railroad Company was granted for and in consideration of a bonus of two-sixteenths of a cent per passenger, payably monthly; the rate of fare is five cents per passenger; that the total receipts of the com pany from first March, 1870, to fifteenth March, 1882, are: *For the year 1870,
$118,515 20 1871,
152,098 75 1872,
144,373 05 1873,
136,656 60 1874,
115,625 40 1875,
96,101 60 1877,
89,701 90 1878,
90,205 20 1879,
89,267 25 1880,
95,269 45 1881,
98,591 70 20,889 60
"Your respondent further says that the receipts from the fifteenth March, 1872, to the fifteenth March, 1882, amount to the sum of $1,046,918. Your respondent, further answering, says that he is informed and believes that the bonus was in lieu and place of the license; that the city could not claim both; that it has ceased to demand the bonus, but has imposed a license on the company, and the company has paid the same in 1880, based on the receipts of 1879; in 1881, based on the receipts of 1880; and in 1882, based on the receipts of 1881, viz., $375 each year, making in all $1,125, thereby releasing the company from any obligation to pay any bonus for said years. And respondent further says that he is informed and believes that any claim for the bonus based on the receipts of preceding years is prescribed. Respondent further swears that the said Canal & Claiborne Streets Railroad Company has already been garnished in the suits of Myra Clark Gaines, Samuel Smith, Subrogee, v. City of New Orleans, No. 2,695 of the United States circuit court, and of Charles Parsons v. City of New Orleans, No. 8,088 of same court, and that, should judgments be rendered against said company, they will amount to more than the company can in any event owe. *Respondent further says that the company has claims against the city of New Orleans for damages caused by overflows in 1869, 1871, and 1881, and against which it should have been protected by the city; and that the amount due for said damages exceeds any amount which would be due for the bonus, if any was due. For this and other reasons the city has not required the bonus.”
On March 30, 1882, the plaintiff, according to the practice in Louisiana, filed a traverse of the answers, and the court made an order, which set forth that, on motion of the plaintiff, and on suggesting to the court that the answers were false, and that the corporation was indebted to the city in larger suns than stated in the answers, and that the plaintiff traversed the answers, in law and in fact, it was ordered that the corporation show cause, on April 5, 1882, why the interrogatories should not be taken for confessed, and why judgment should not be rendered against it for the amount of the plaintiff's claiin,
with interest and costs. On March 31, 1882, a copy of this order was served on the corporation. On the fifth of April, 1882, a stipulation in writing between the plaintiff and the city was filed, agreeing that all sums paid by the corporation should be deposited in the registry of the court, to await the decision whether the money was subject to seizure under the plaintiff's execution. On the same day, the traverse to the answer came on for trial before a jury. The record states that, “after hearing the pleadings, the evidence and arguments of counsel, and receiving a charge from the court,” the jury found I verdict for the plaintiff against the corporation, as garnishee, “for the following sums,” naming 13 several sums, with interest on each, at 5 per cent. per annum, from a specified date, being a total of $33,684.74,"with interest on the various sums, from dates as above stated, until payment.” On this
lict, and in accordance with it, a judgment was, on the same day, rendered, that the corporation, garnishee, be condemned to pay to the plaintiff $33,684.74, with interest at the rate of 5 per cent. per annum “on the following sums, from the following dates," specifying as in the verdict, until paid, with costs; and ordering that the amount, with interest, be deposited in the registry of the court, subject to the terms of the foregoing stipulation. The judgment was, on the nineteenth of April, 1882, amended nunc pro tunc, so as to order that the garnishee pay that amount, with interest, into the registry of the court, “subject to the rights of all parties concerned.” The entire judgment was signed April 26, 1882.
The corporation made a motion for a new trial, which was refused on April 21, 1882. It also filed and made a motion that the proposed jud written upon the minutes and record against it as garnishee be expunged therefrom, and be never signed and made operative, and that any judgment by reason of the verdict be arrested, for 10 specified reasons. This motion was overruled on April 26, 1882, and then the judgment was signed. To reverse this judgment the corporation has brought a writ of error. The record contains a bill of exceptions, which states that at the same term at which all the foregoing proceedings took place, and before any final judgment against the corporation as garnishee had been signed and become final, the corporation made the motion in writing for arrest of the judgment, and both parties appeared, and the court overruled and refused the motion, and the corporation excepted to the ruling and judgment of the court in that particular. It is assigned for error that the circuit court never acquired jurisdiction of the original suit against the city. The petition by which the original suit was commenced in the state court was filed November 4, 1881, and is marked No. 4,414. The citation was issued and served on the city on that day. The plaintiff's petition for removal is entitled in the suit as No. 4,414. It was filed November 5, 1881, and is signed by the attorneys for the plaintiff, and states that the suit was commenced about November 1881; "that your petitioner was, at the time of bringing said suit, and is now, a citizen of the state of New York, and a resident thereof;” and “that there is, and was at the time said suit was brought, a controversy therein between your petitioner and the said defend*ant, the city of New Orleans, who is a citizen of the state of Louisiana, and a resident thereof." It also states that the removal is desired “in pursuance of the act of congress in that behalf provided, to-wit, the Revised Statutes of the United States, § 639, subd. 3;" and that the petitioner “has filed the affi. davit required by the statute in such cases. The petition was accompanied by an affidavit, filed therewith, sworn to by the petitioner, in the city of New York, before a commissioner for Louisiana, on the twenty-fifth of October, 1881, in which the petitioner stated that “he is the plaintiff in the case of Judah Hart v. The City of New Orleans, No. 4,414, civil district court, parish of Orleans, state of Louisiana, and 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, on consideration of the petition, affidavit, and bond, made an order removing the cause. In the motion to re