NORTHERN PAC. R. CO. tI. AllATO.
CO. 17. AMATO.
(OIrcua Oourt of
Second Of7'cmf. January 18,1892.)
CmcuIT CoURT OJ' APPEALS-WRITS OJ' ERROR.
Under the .act circuit courtof appeals, (26 St. p. 826, c. 517,) which provides, in section 11, that all existing provisions of law, "regulating the system and methods of review through appeals' and writs of error," shall be applicable to sUQhreview in the circuit court of appeals, a wnt of error returnable to the circuit court of appeals may be Issued from the clerk's office of the circuit court in which the &etion was tried. As Rev. St. U. S. § 691, as amended by Act Feb. 16,1875, limiting the jurisdiction of the supreme court to cases involVing $5,000 or over, was expressly repealed by section 14 of the circuit court of appeals.act, there was no ground for contending that such limitatioll applies to the jurisdiction of the ,circuit court of appeals. Thaact the circuit court of appeals took e1I'ect from the date of its passage,' and the court.had jurisdiction to reVlew, by writ of error, a judgment entered thereafter,.and before the third Tuesday in June following, which was merely the day for the first meeting of the court, as fixed by the joint resolution passed on the same day with the act. 111 7'6 1L Sup. Ct. Rep. 785,140 U. ·S. 200, followed.
SAMB-DATE OF CREATION.
.. SAME---PllNDING SUITS.
The'circuit court of appeals has jUrisdiction to review causes pending in the circuit courts·at the time of its;creatlOn, even though such causes, for less than $5,000, .were not before reviewable in any court. Making the cause reviewable is not impairi'ng the jUrisdiction of the court, within the meaning of the clanse of the joint resolution which declares that the act shall not in any wise impair the jurisClictionof any federal court in pending causes. In 7'6 Owasen,11 Sup. Ct. Rep. 135, 140 U. S. 200, followed. While rules 67 and 69 of the circuit court for the southern district of New York require exceptions in comlJlon-law cases to be drawn up and.served before judgment, they do not require the exceptions to be settled and filed before that time.
BILL OF EXCEPTIONs-TIME OF SETTLING AND FILING-CIRCUIT COURT RULES.
&. MASTllR AND SllRVANT.,.-CONTRIBUTORY NllGLIGllNCll.
it was contributory negligence for a railroad laborer, returning from his work at night across a slippery railroad bridge, to walk "at his ease," without keeping a lookout for trains, in view of his boss' assur:;.nce that there would be no trains two hours, is a question for the jury.
Ertor to the Circuit Court of the United tltates for the Southern District of New York. Action by Dominick Amato against the Northern Pacific Railroad Company for damages for personal injuries. The CRuse was brought originally in the supreme court of New York for New York county, and was subsequently removed by defendant to the United States circuit court for the southern district of New York. Verdict and judgment for plaintiff in the sum of $4,000, and a motion for a new trial denied. 46 Fed. Rep. 561. Defendant brings error. Affirmed. On writ of error from the supreme court, affirmed, 12 Sup. Ct. Rep. 740.
STATEMENT BY LACOMBE, CIRCUIT JUDGE.
In November, 1888, Amato, the defendant in error, who was alaborer on the railroad of the plaintiff in error, was run over, and his leg cut off, by one of the company's locomotives. He had been at work, with a gang of 56, near the west end of the railroad bridge, at Bismarck, in North Dakota. They lived near the east end of the bridge, and it was the of the company to take the men home from their work on a v,49F.no.11-56
car drawn by a locomotive, about half past 5 o'clock each afternoon. On the day of the aecident, however, the boss told them there would be no train to take them acrOSEl, and that they would have to walk. He further tOfiiihem thatfto 'engine would come over th6'bridge until about in conse7 or half past 7. They all started to walk across, of not keep up with the others, fell behU;ld, There was, but onE1 track on the brIdge, and on'that track he walked; There was not room to walk at the side of'the track with6ut crawling from one trestle to another. An engine came, on the bridge from, the east, meeting him about mid way acrOss. From the place where he met the engine to the ea,at end was about 700 feet, and thetlrack straight. There was room on the bridge to allow him to step aside and let the engine pass, if he haA seen it coming. He did Bot see it until it was I'on top of him." Then ,he tried to get put of but slipped on the track, which was slightly frozen, fell, and caught his leg under the wheel of the engine, which passed over it, cutting it off. 'The action was commenced in February, 1890" and was tried in the circuit court of the United States for the Bbuthern district of New York, April 17, 1891, reeulting in a verdict for $4,000 in favor of theplai,ntiff below. Judgment was entered May 28, 1891, and the, bill was signed July 16, 1891. A writ of error from this court of was issued from the clerk's office of the circuit court oli July 27. 1891. Henry Stanton, for plaintiff in errOl. ,Roger Foster" for defendant in error. Before WALJ..ACE and LACOMBE, Circuit Judges. Judge, after stating the case as above, delivered the opinion olthe: court. The defendant in error contends that the writ of error is void, because it was the, circuit court, and not from, circui,tcourt of appeals. Such contention is unsound. The act of March 3,1891, 00of appeals, (26 St. p. 826, c.517,) provides in its section that "all provisions of law now in force [when the act passed] regulating t.he methods and system of review, through appea1sQr writs of error, &hall regulate the. methods Rnd system of the circuit ofappeals anQ,wrHs pi' error provided for in this act in the time the act was passed it was provided, by court of section 1004 of the Statutes, that "writs of efrOl returnable to the suprerpe coqrt :may be issued as well by the clerk$ofthe circuit courts, under the sealEithereof, as by the clerk of the supreme court." By the eleventh section (above quoted) this regulation tcltlching the method of review by writ of error was extended 'to cases 'returnable to the new courts of review: ' . Itis also ut'ged on behalf of the defendant In error that no writ of error liesinrevievv of this judgment,inasmuch as the ,matter in dispute, exclusive of ebsts, is IMs thafi $5,000. Reference is Inade to the eleventh section ofthefietesta1alishtng the circuit courtsofappeals, (above quoted,) and to the provisions of section 691 of the Revised Stl1tl.1tes, as amended
by section 3 of the act of February 16, 1875, (18 St. pp. 315, 316, c. 77,) limiting the jurisdiction of the supreme court to cases involving that amount. The difficulty with this argument is that the very act which created the new courts expressly repealed section -691 of the Revised Statutes, and also section 3 of the later act of February 16, 1875, limiting thejllrisdiction to cases involving $5,000. Act March 3, 1891, § 14. At. .the time the new act was passed, these provisions as to the in controversy ceased to exist, and were therefore not transferred to the new courts as "provisionsoflaw [then] inforce." Defendant in error further contends that this court has no jurisdiction to review, by writ or error, a judgment which was entered before the day prescribed in the joint resolution of March 3, 1891, (Joint Resolution No. 17, Mareh 3, 1891; 26 St. p. 1115,) for the organiza.tion .of; this court, and that this action ia. not affected by the act of March 3, 1891, having been begun before its passage, and therefore within the saving clause of the joint resolution, which provides that "said act shull not * * * in any wise * * * impair the jurisdiction of any court of the United States in any case now pending before it." It is argued that the jurisdiction of the circuit court would be imlJaired if, in a case where its judgment!' were formerly absolute, they may now be reversed bJ writ of error. Thil:l point. however, has been disposed of by the supreme court in Re Claasm, 140 U. S. 200, 11 Sup. Ct. Rep. 735, where a writ of error wos allowed under the new act to review a final judgment renderell March IS, 1891, in a criminal action pending before the pasf>age of the act, and which judgment was not (except for such act) reviewable by writ or error, the court holding.that the act of March 3, 1891, went into immediate operation, 80 as to permit a writ of error in such a case. The new courts were created Qy the act of March 3, 1891, § 2, which took effect upon its passage, not by the joint resolution, which merely provided for thdr first meeting day. Defendant in error further contends that the bill of exceptions cannot be. considered, because it was allowed too late, judgment having beeu en1891, and the bill of exceptions allowed July 16, 1891; tered May and refers to circuit court rules 67 and 69, (for the southern district of New York.) These rules provide, in substance, as follows: (n) Exceptions shall be drawn up and served belore judgment is rendered and en(b) amendments tered, unless. the time sholl be enlarged by a thereto are to be servp,d within four days after service of the exceptions, unless the time shall be so enlarged: (c) four days are allowed jar the pllrties to agree, unless the time shall be so enlarged; (d) if they cannot agree, four days' notice of settlement may be givE'n by either party, unless thetime be so enlarged; and (e) the judge t;hall thereupon correct and settle the 8l1me, within what time the rules do not prescribe. There is nothing in these rules requiling the exceptions to be settled and filed peforejudgment, and, for all that appear$ in the record belore us, .the proposer.texceptions were drawn up and served before judgment, as the rules rel1uire.,
FEDERA.L REPORTER, vol. 49·
. phlintiff in error insists that the trial judge erred in not taking the case from the jury,and directing a verdict for the company, because, as it contends, the undisputed testimony showed that Amato wItS guilty of culpll:ble negligence, which brought about the accident. He testified that" he was walking at his ease, not thinking of anything," and did not see the engine when it came on the straight part of the bridge; but also stated that he "never thought of it, for the reason that the boss told him there was nothing to come across." We are of the opinion that it was fairly a question for the jury to determine whether or not it was negligenceon his part not to keep a lookout for a coming engine, in view of the boss' assurance that there was none to come. The case is quite within the decisions in Bradley v. Railroad Co., 62 N. Y.99,and Oldenburg v. Railroad Co., 124 N. Y. 414, 26 N. E. Rep. 1021. The judgment of the circuit court is affirmed, with costs of this appeal. ,.
GILBERT et ale
NEW ZEALAND INs. Co.
Oourt, D. Oregon. March 21, 1892.)
That the term "inhabitant, " as used in thetirst section of the jndiclary act, In. eludes a foreign corporation, engaged in busincss in the district in whioh it is sued, according to the laws thereof.
II. FOREIGN CORPORATION.
. A foreign eorporation, engaged in business in any state iJ;1 this Union, who, in pursuance of the laws thereqf, appoints an attorne.f, with power to receive service 'of process in any suit. against it, thereby consents 10 advance to be sued thereon.
AtUw. Mr. LewUL. McArthur and Mr. Tilmon Ford, for plaintiffs. Mr. J088[Jh Simon, for defendant.
DEAD'lt,District Judge. This action is brought by the plaintifl's,citizens of Oregon, against the defendants, a corporation organized under the laws of New Zealand, and alleged to be an "inhabitnIit" of the state of Oregon, to recover an lilleged loss by fire of $3,500, against which it had insured the plaintiffs. The firstcoclplaint merely stated that the was a New Zea:land corporation, and plaintiffs were citizens of Oregopj and on this it was contended that the parties were "citizens ofditlerent states," within the meaning'ofthosewords in section 1 of the judiciary act, (Supp. Rav. St. p. 612,)arldtherefore the court had jurisdiction. · ", . On demui'l'ertt> the complaint, the court held these words did not include analietlsbbject or cotporation, but were coiifinedto citizens of the Union. .., . The plaintiffshnd leave to amend,and now allege that the 'defendant in 188S-engaged in the fire insurance business in Oregon, and, purBuant to the laws thereof concerning foreign insurance compa.I1ies,'depos;.