decree, to contend'in this proceeding that the stra'nding of the schooner was not caused by his fault.; His contention on this point has been supported by the opinion of the commissioner; and such is my opinion. The immediate cause of the stranding of the schooner was the hoisting of the schooner's sail by the master thereof before the tow had passed the reef. This was done under the permission of Flannery to the master of the schooner, to hoist his sail as soon as they were clear of the reef. The master of the schooner undertook to use his own jUdgment as to when they were clear of the reef, and the sail was hoisted, without any direction from Flannery, by the master of the schooner, acting upon his ()Wll judgment that the tow was clear of the reef, when in fact the tow was not ciear of the reef; and consequently the schooner touched upon the reef. The negligence that caused the collision was the negligence of the captain of the schooner in hoisting his saH before the tow was clear of the reef, and not any negligence on the part of Flannery.Flannery is therefore entitled to be paid his wages, first, out of the proceeds; and the remainder must be paid to the Pennsylvania Railroad Company on their decree.
THEl ANCHORIA. MULVANA et al. v. THEl ANCHORIA. (Circuit Court of Appeals, Second CirCUit.
SHIPPING-NEGLIGENCE-INJURY TO PASSENGER.
December 1, 1897.)
The eXI$tence of a wet ,place on the floor about the water cooler In the steerage, caused by carelessness 'of passengers in using the cooler, ls !lot proof of such negligence as will render the ship liable for personal injuries caused' by the slipping of the steward thereon so as to spill hot gruel upon a passenger. The probability of such an accident is too ,emote to make the failure to "keep the floor constantly dJ;y negligence in the protectlpJ:lof passengers. 77 Fed. 994, affirmed.
Appeal from a decree of the district court for the Southern district of New York, which dismissed the libel of James Mulvana, for himself and as father of his infant, Patrick Mulvana, who were passengers 'on board the steamship Anchoria,against the vessel, to recover damages foidnjuries to the son which were alleged to have been received brconsequence of the negligence of the steerage steward of the vessel while on her voyage. 77 Fed. 994. E. B. Whitney, for appellant. , C. C. Burlingham, fQr appellees. 'Sefore WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. The general account of the injury is stated by the district. judge as follows:
"On the evening of Sept 'mber 22, 18M, about 8 o'clock, the lIbelan\:'sson, about thre.e years of age, a passenger, with his father and mother, onboarlithe steamer Anchori'll, from Londonderry to this port, while sitting on the, stll:r-
83 FEDERAL REPORTER.
board side ot the starboard table- :in the steerage, near the forward end, at his evening meal, was scalded upon the face and neck by the splashing of bot gruel from the bucket in which 'the steward was supplying It to tile steerage passengers."
The libelants' witnesses say that, as the steward was passing around the end of the bench upon which the child was sitting, he slipped and fell, and, in falling, hit the bucket against the end of the bench, so as to throw the hot gruel upon the right side of the neck and face of the chUd. They say that he slipped and fell upon a wet place upon the floor, which was caused by the drip from a water cooler which was near by, in,the corner of the steerage, and at the right hand of the child. The steward's account of the occurrence iathat as he was passing in the rear of the table, and after he had served the child, one of two little girls who were at play behind the tables ran against the bucket, in a little lurch of the ship, so as to splash its contents upon him and the' child. The district judge did not find definitely which version was correct, but, assuming that the cause of the accident was a slip upon the wet floor, did not think that a case of negligence was made out. It is true that there was a dripping from the water cooler, which was caused, as the father says, because the children, who went there to quench thirst, did not turn the faucet so that the water could not drip. The steerage passengers also threw the slops of tea, which they had made for themselves, into the pail under the faucet. Each morning the wet place was scrubbed and dried, and a pail was placed under the faucet, but the pail was sometimes, in the course of the day, moved out of place. We agree with the district judge that the cause of the slip is not clear from the testimony, but, as the witnesses for libelant are in the majority, we are willing to assume that it was caused or was aided by a wet floor, which was wet by the passengers' careless use of the water cooler and the pail. The libelant invokes the proper and rigorous obligations of care and caution which the law imposes upon carriers of passengers for hire, and which are stated in Pennsylvania Co. v. Roy, 102 U. 8. 451, Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, and The City of Panama, ·101 U. S. 462, and says that the carelessness of the steward in permitting the existence of a wet spot upon the floor was an act of negligence which renders the ship liable. It is probably true that a carrier 9£ passengers for hire is bound to use care to overcome or obviate the known ordinary carelessness of the passengers, and, if a wet :(loor was dangerous, it would not be an adequate excuse for not guarding against the danger that it was caused by their known and continuous carelessness. The reason which excuses liability for this accident was presented by the district judge, and it is that no danger was to be apprehended, and that the danger of a grown man's slipping by reason of a wet spot upon the floor, and hurting a passenger in his fall, was so remote that the failure to keep the floor in a state of perpetual dryness, while it maybe evidence that passengers were not prevented from a disagreeable tendency to a lack of neatness, is no evidence of negligence on the part of the officers or stewards of the ship in the protection of passenp;ers against injury. The decree of the district court is affirmed, with costs of this court.
CREAGH V. EQUITABLE LIFE ASSUR. SOo.
CREAGH v.EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES. (Circuit Court, D. Washington, N. D.
REMOVAL OF CAUSES-NOTICE OF PETITION.
November 30, 1897.)
In causes removable from the state to the federal court, under the statute, the right to remove is absolute, and the proceeding therefor ex parte, and no notice to the adverse party is required. The fact that a defendant sued by an allen in the state court is a resident of another federal district does not affect his right to remove the cause, if one over which the circuit court would otherwise have had original jurisdiction; the filing of the petition and bond for removal being a waiver of the right to object to the jurisdiction on that ground. A suit by an alien against a citizen who is a nonresident of the state in which the action is commenced is removable by the defendant on the ground of diversity of citizenship.
SAME-By NONRESIDENT DEFENDANT.
SAME-DIVERSITY OF CITIZENSHIP-SUIT BY ALIEN.
SAME-EXISTENCE OF CONTROVERSY.
Where a petition by defendant for removal states that there is a controversy between the parties involving the requisite amount, it is no objection to the removal that defendant has filed no pleadings from which such controversy appears.
Action bv John Creagh against the Equitable Life Assurance Society of the United States. Heard on motion to remand to state court. John Arthur, for plaintiff'. Thomas R. Shepard, for defendant.
HANFORD, District Judge. This action was commenced in the superior court of the state of Washington for King county. The defendant filed a petition and bond, and obtained an order of said court removing the same to this court. In his complaint the plaintiff pleads a contract in writing, by which he was constituted the defendant's agent for the province of British Columbia, and was to receive certain profits and emoluments, to accrue from insurance in the defendant company to be effected through said agency within the territory assigned to him, and alleges breach of said contract on the part of the defendant, by which plaintiff has been damaged to the amount of $J.9,537.45, in which sum he prays for judgment, with costs. The defendant's p tition for removal of the cause to this court sets forth that the amount in controversy exceeds $2,000; that the plaintiff is a citizen and resident of the province of British Columbia, anda subject of Victoria, queen of Great Britain; and that the defendant is a corporation organized and existing under the laws of the state of New York, and not a resident or inhabitant of the state of Washington. The plaintiff has moved to remand the case to the liuperior court, in which it was commenced, upon several specified grounds, but I will only refer to those which were relied upon in the argument, viz.: First. Notice of the removal proceedings was not given to the plaintiff or his attorney. Second. Both parties are nonresidents of this district. Third. In a suit by an alien plaintiff against a citizen, the law does not authorize removal by the defendant. Fourth. No answer, plea, or demurrer having been filed, it