CHICAGO, R; I. & P. RY'. CO. V.STAHLEY.
863
CHIOAGO, R I. & P. RY. CO. No. 430.
v. STAHLEY. June 25, 1894.) STATUTE
(Circuit Court of, Appeals, Eighth Circuit.
1.
FEDERAL COURTS - FOLLOWING DECISIONS OF STATE COURTS ADOPTED FIWM, ANOTHER STA'l'E.
Where a statute of one state, after It has there received a settled construction, Is adopted In another state, If the, supreme court of that state construes the statute differently, such construction will be accepted by the federal courts as the true interpretation Within that state. Compo Laws Kan. 1879, p. 784, § 4914, making a railroad company liable "for all damages done to any employee of such company in consequence of any negligence of Its agents, or by any mismanagement of Its engineers or other employees," having been construed by the supreme court of the state as not limited to Injuries caused in the movement ot trains, Is properly applied, in the federal courts, to a case where one employe was injured by negligence of another while both were engaged, In a roundhouse, in putting a recently-arrived engine in condition for immediate use. The simple expression of a personal opinion by a judge of a United States court, In charging the jury, that a certain act was, under the circumstances, negligenc!', is not ground for reversal, where the portion ot the charge Immediately preceding left to the jury the question of negligence in such act.
B.
MASTER AND SERVANT - INJURIES TO EMPLOYES OF RAILROAD COMPANIESSTATUTORY PROVISIONS.
8.
TRIAL-PROVINCE OF COURT AND JURy-EXPRESSION OF OPINION ON FACTS,
In Error to the Circuit Court of the United States for the District of Kansas. This was an action by E. S. Stahley against the Chicago, Rock Island & Pacific Railway Company for personal injuries. On trial in the circuit court the jury found a verdict for plaintiff, and judgment for plaintiff was entered thereon. Defendant brought error. The facts in this case are, briefly stated, as follows: Plaintiff below (defendant In error) was In the employ of the Iallway company at Horton, Kun. At the time of the accident he was working in the roundhouse, which was sttuated near to the tracks, and contained stalls for 20 locomotives. A new locomotive had recently been brought from a manufactory In the east, and he, with three other employes of the railway company (one of whom was named Dougherty), was engaged in putting It In order for use; It being at the time of its anival what is called a "dead" englne,-that is, an engine clJ,pable of being moved on the tracks, but with some of the machinery and rods as yet not attached. The four, while thus employed, attempted to 11ft a driving rod, and attach It to the engine. This driving rod was about eight feet long, and weighing, according to the plalntiff's witnesses, from 700 to 800 pounds, and, according to the defendant's testimony, from 400 to 433 pounds. Two took hold of the rod at one end, and two at the other, and, while carrying it to Its place, Dougherty and his associate, at one end, without notice or warning to the others, let go their hold; and the sudden jerk caused by the dropping of that end on the ground resulted In Injury to the plaintiff, who was one of the two holding the rod at the other end. '1'0 recover for such injury, plaintiff brought this action against the railway company. The verdict and judgment were In f'avor of the plaintiff, and the defendant sued out this writ of error. was at the time in force in the state of Kansas a statute as follows: "Every railroad company organized or doing business In this state shall be liable for all damages done to any employee of such company in· consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to IUIJ' person sustaining such damage." Camp. Laws
864
FEDER4\.LREPORTER,
vol. 62.
1879, p. 784, § 4914. At the trial, the fact of the injury having been proved, the court was asked ,to charge that the plaintlffcould not claim the benefit of this statute becaUse it embraced "within its meaning only those persons eng:vged in'the hazardous business of operating a railroad," and the refusal to give this instruction is the principal matter complained of. The other error alleged is in giving this Instruction: "At this point is where, I think, the stress of the case comes, to determine in the first place whether Dougherty and his associate d,ropped the rod in the manner claimed by the pla.illtiff, without allY warning whatever to plaintiff; and, second, whether or not the vlaintlff was at the time iUi the exercise of ordinary care, that is, such,asa man under such circumstances would ordinarily exercise. If you find these two propositions In the afl:irmative, the plaintiff would, be entitled to in thiscllse SUCh damages as you can say, from the whole evidence, is fair and proper compensation for the injuries suffered."
F., Evans (M. A. Low and J. E. Dolman, on the brief), for plaintiff in error. A.F. Martin, for defendant in error. Bef9reBREWER, Circuit Justice, and OALDWELL and SAN· BORN, ,Circuit Judges.
, BREWER, Circuit Justice (after stating the facts). The Kansas statute' was taken from the legislation of the state of Iowa, and it is insisted by counsel for the' railway company that Kansas, in adopting the Iowa statute, adopted it with the limitations and construction'theretofore placed thereon by the supreme court of Iowa, . and that, therefore, in order to determine its meaning and scope, ' we must look to the decisions of that court. It is undoubtedly true that, when one state adopts the statute of another, it is presumed to take it with the settled construction given to it in the state from which it is taken. That proposition has been often by the supreme court of the United States. Thus, in McDonald v. Hovey, 110 U. S. 619-628, 4 Sup. Ct. 142, that court, by Mr. Justice Bradley, said: English statutes-such, for Instance, as the statute of frauds and the statute of limitations-have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been conSidered as silently Incorporated into the acts, or has been received with all the weight of authority.' Pennock v. Dialogue. 2 Pet. I, 18; Smith, St. & Const. aw, § 634; Sedg. St. & Const. Law, 363." "It Is a received canon of construction, acquiesced in by this court, 'that,
"But, so far as relates to the question of 'undue preference,' It may be presumed that congress, in adopting the language of the English act, had in mind the constructions given to these words by the English courts. and in· tended. to thew 1nto the statute."
And again, in Inte'rstate Oommerce Commission v. Baltimore & O. R. Co., 145 U. S. 263, 284, 12 Sup. Ct. 844 it was said by Mr. Justice Brown:
Indeed; in construing this very statute, the supreme court of Kansas, in Railway Co. Y. Haley, 25 Kan. 35, 53, said: "We concur in the views expressed by the Iowa court as to the consti· of the statute, and hold it a valid exercise of legislative power. Ml,ourstate has adopted the ,statute from Iowa., the judicial construction gi'Y,en to it in that state follows it to this state. Bemis v. Becker, 1 Kan. Therefore, the act embraces only those persons mf>l'e or less exposed 1:Qt'li,e hazards of the business of l'ailroading."
CHICAGO, B. I. & P. BY. CO.
v.
BTAHI,EY.
365
See, also, Trust Co. v. Thomason, 25 Kan. 1. But, while this is an undoubted rule of c()nstruction, there is another which is more applicable to the present case; and that is that, when a right is given or a liability imposed by a statute of a state, the settled determination by the courts of that state as to its scope and meaning is controlling upon the federal courts. We follow the state courts in their construction of state statutes of this nature. Burgess v. Seligman, 107 U. So 20, 2 Sup. Ct. 10; Claiborne Co. v. Brooks, 111 U. So 400, 4 Sup. Ct. 489; Bucher v. Railroad Co., 125 U. S. 555, 8 Sup. Ct. 974; Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012. This rule is paramount to the one heretofore referred to. Applying it to the case at bar, if the supreme court of Kansas, although the statute had been adopted from the state of Iowa after it had there received a settled construction, should construe it differently, the federal courts would accept the construction placed by the supreme court of Kansas as the true interpretation of the statute within the limits of that state. Or, to state the proposition in another way, if a precisely similar statute was enacted in two adjoining states, and yet, notwithstanding such similarity, the settled course of decision in those states resulted in a different interpretation of the same language, the federal courts would accept the construction given by the courts of each state, respectively, as the true meaning of the statute in such state. Following this established rule of federal decision, there is no difficulty in respect to the first of these questions. The circuit court properly refused the instruction in respect to the nonapplicability of the statute. The terms of the statute are general. The liability is imposed upon a railroad company "for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees." The letter of the statute is broad enough to include every of a railroad company, no matter what the character of his service, or that of the other by whose negligence he is injured. While this literal construction of the statute is not that placed upon its language by the supreme court of Kansas, that court has held that the liability is not limited to those cases in which the injury is caused in the movement of railroad trains. The cases of Railway Co. v. Harris, 33 Kan. 416, 6 Pac. 571, and Railroad Co. v. Koehler, 37 Kan. 463, 15 Pac. 567, show to what extent that court carries the terms of this statute. In the first of these cases, Harris was a section hand employed in repairing the track of the railroad companY,-taking out old rails and putting in new ones. While so doing, he was injured by the negligence of another emengaged in like service. It will be seen that this injury in no way resulted from the actual movement of trains, but occurred while the party injured and the negligent were engaged in the work of putting the track in condition for use; and the court, on page 421, 33 Kan., and page 571,6 Pac., usesthis language: "In the case before us, at the time of the injury complained of, plaintiff below was in the employ of the railway company, and was actually engaged In the business of the company, upon its roadbed and tracks, in the work
366
FEDERAL ,REPORTEA,
vol; 62.'
of replacing old rails of tlietrack ones; /lnd, whlle assisting in rail fl:OJ;ll a PWlhcar track"be was injured, without fltitlt bp' bJs' part, by tlie of his .With our construction, of tlie: there is nothing in the petition or findings of fact to prevent his ,
In the second of these, cases the an employe of the company, with ()thers transferring rails from a pile alongsidethe ontq,tt:l:ar, and doing was killed through tne o(op.e in lik¢ service, and the company was held the, of this statute; the court, on page 469, g,1,:Kan., and page 567,;15 Pac., saying: , "The service was a<:;1;1j.ally on the company's road, was necessary to its USe and operation, and the result in the case sufficiently shows the hazardonscharacter of:' the' service." '
lUI'! dimcultt() <,Ustinguish those cases from the present. Here, as injury Md fr,wn" the movement, of the trains, but wl},ile t4e employe inJ;ured and the employe injuring in ,work but directly, connected with the opwation of the, road. Plltting a track in condition is no more direqtly with th.e movemept of trains than putting an engiAe It wiij be noticed that this plaintiff was not at work 11;1; i,a machine shop, or. in any ot,her place not actually and necessarily used in the daily, work of operating the railroad, but in building in which engines are housed a roundhqp.se, and prepared for, use. A. rQundhouse is as much a necessity for railroading asa,stable for,thelivery business. Ire was not engaged in repairing an oJd eilgine or constructing a new one, but in that ,engine whjc;h"hadrecently arrived in condition fol' Hewas, a,.sin tpose cases, noLengaged in any outrelated Jptbe business of the company; he was side tract to be used by'the company in roa,.dhed, nor, i.nmining coal for consumption by the even in the machine shops of the company, constructing or :rel'ai,rplg its rollipg stock; ,but the w0l.'k which he was doing was work..directlyrelated of trai1lSr'-as much so as that of repairing the Weare unabJe to distinguish this case, iIi .principle, the. tWQ referred to in the decisions of the oonrtof Kansas; a,.nd. therefore, as this is a case arising in that must hold, that the. circuit court did not err in ruling that the plaintiff WitS entitled to the benefit of this statute. complained of is challenged on the ground The, otb,er that thereby: the took fliPDl the jUl'y the qllestion as to whethel' Dougherty and guilty of negligenc:e in dropping the rod .This should be read with. that porwhich is as follows: tion of. the "If, the testimony, you, are satisfied from the evIdence that Dougherty aJl!ipls assqcPite, tq doubt as :wlio, tr{)d nnd without any warning whatever, tn Ithe" manner stated by b'lllltItlff and Mr. Norton, my own view is he Using. that due. caution which· a ,prudent 'man would or!ilnar.ily,,' .under like· eircumstances, and which In this case he was boun,d to, :If you tindthat' to be true, then I think you would be
BALTIMORE &O.R. 00. 0; Ml!JYl!:RS.
867
<warranted' In Ilaying he was guilty ot neglIgence, and that the plaintitr, in that event, would be entitled to recover. · · · It seems to me that, It he had hold ot the rod in the manner he states,-the manner that Dougherty states he had hold of the rod,-if he had been notified, as I think he had the right to be, before the other end was dropped upon the floor, he might perhaps have released his hold in a way that would not have brought upon him the injmy 'complained of in the case; but upon this whole matter I simply call your attention to the evidence and testimony, and submit the matter for your consideration. Upon this proposition you have the < right to entertain views contrary to those entertained by the court, as to the elIect -of this evidence."
We think a fair inference from this language is that the judge left to the jury the right to pass upon the question as to the negligence of Dougherty and his associate, simply expressing a personal opinion that the dropping of the by them without any warning was, under the circumstances, negligence. Such an expression of opinion is permitted in the courts of the United States. Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919. With that opinion we fully concur. It seems to us that there can be little doubt that if four men take hold of a rod of great weight, for the purpose of carrying and putting it in position, it is exceedingly careless for those at one end to let go their hold, and drop their end to the ground, without giving warning to those who hold at the other end, for thereby they necessarily sUbject them to a sudden strain and jerk. These are the only questions presented in the record. fI'he one .seems settled by the decisions of the supreme couI1i of Kansas, and in respect to the other, as a matter of general law, we entertain little doubt. The judgment of the circuit court is therefore &f. Armed. BALTIMORE & O. R. CO. v. MEYERS. (Circuit Court ot Appeals, Seventh CircuIt. March 6, 1894.)
No. 71. 1. CoURTs-JURISDICTION OF CIRCUIT COURT OF ApPEALS.
Where the jurisdiction ot the court below Is not the Ilole question preIlented by the record, but other questions are involved, the circuit comt ot a.ppea.ls is authorized to determine that question, as well as the others. Jurisdiction over an action against two railroad companles jointly operating a railroad, for injuries inflicted through negligence in its management, is not affected by the illegality of their combination. The requirement that suits in federal courts shall be brought in the district where the defendant lives confers an exemption, in the nature ot a personal privilege, that may be waived, and has no application to a suit removed from a state court to the federal court by the defendant.
.. SAME-ILLEGAL COMBINATION OF RAILROAD COMPANIES.
:8.
FEDERAL COURTS-SUIT IN DISTRICT OF DEFENDANT'S RESIDENCE.
.4.
CARRIERS-INJURIES TO PABSENGERS-CONTRmUTORY NEGLIGENCE.
A railway passenger, on asking the conductor and brakeman of the train Whether it would stop at a certain station, was informed that it would stop at.& railroad crossing near it, where he could get oft. When the train was about a mile from the vlace, moving at the rate of 35 miles an hour, the passenger, at the invitation of the brakeman, because it was expected that the train would make only a very short stop, went OD the platform, and