Northern Pac. R. Co. v. Amato

Lacombe, Circuit Judge, after stating the case as above, delivered the c pinion of the court. The defendant in error contends that the writ of error is void, because is was issued from the circuit court, and not from the circuit court of appeals. Such contention is unsound. The act of March 3, 1891, establishing the circuit courts of appeals, '(26 St. p. 826, c. 517,) provides in its eleventh section that “all provisions of law now in force [when the act was passed] regulating the methods and-system of review, t irough appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals.” At the time the act was passed it was provided, by s action 1004 of the Revised Statutes, that “writs of error returnable to the supreme court may be issued as well by the clerks of the circuit courts, under the seals thereof, as by the clerk of the supreme court.” By the e eventh section (above quoted) this regulation touching the method of raview by writ of error was extended to cases returnable to the new c >urts of review. It is also urged on behalf of the defendant in error that no writ of error lies in review of this judgment, inasmuch as the matter in dispute, exclusive of costs, is less than $5,000. Reference is made to the eleventh s-action of the act establishing thecircuit courtsof appeals, (above quoted,) aid to the provisions of sectioxa 691 of the Revised Statutes, as amended [883] 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 The difficulty with this argument is that the very act which created the new courts expressly repealed section 691 of the Revised Statutes, and also section 3 of the.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 the jurisdiction to cases involving $5,000. Act March 3, 1891, § 14. At the time the new act was passed, those provisions as to the amount in controversy ceased to exist, and were therefore not transferred to the new courts as “provisions of law [then] in force.” 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 proscribed in the joint resolution of March 3, 1891, (Joint Resolution No. 17, March 3, 1891; 26 St. p. 1115.) for the organization of this court, and that this action is 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 shall 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 impaired if, in a case where its judgments were formerly absolute, they may now be reversed by writ of error. This point, however, has been disposed of by the supreme court in Re, Claasen, 140 IT. S. 200, 11 Sup. Ct. Rep. 735, w’here a writ of error was allowed under the new act to review a final judgment rendered March 18, 1891, in a criminal action pending before the passage 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, so as to permit a writ of error in such a case. The new courts were created by the act of March 3, 1893, § 2, which took effect upon its passage, not by the joint resolution, which merely provided for their first meeting day. Defendant in error further contends that the bill of exceptions cannot be considered, because it was allowed too late, judgment having been entered May 28, 1891, and the bill of exceptions allow'ed July 16, 1891; and refers to circuit court rules 67 and 6S), (for the southern district of New York.) These rules provide, in substance, as follows: (a) Exceptions shall be drawn up and served before judgment is rendered and entered, unless the time shall be enlarged by a judge; (6) amendments thereto are to be served within four days after service of the exceptions, unless the time shall be so enlarged; (c) four days are allowed for the parties to agree, unless the time shall be so enlarged; (d) if they cannot agree, four days’ notice of settlement may be given by either party, unless the time be so enlarged; and (<?) the judge shall thereupon correct and settle the same, within what time the rules do not prescribe. There is nothing in these rules requiring the exceptions to be settled and filed before judgment, and, for all that appears in the record before us, the proposed exceptions were drawn up and served before judgment, as the. rules require. [884] The plaintiff in error insists that the trial judge erred in not taking the case from thb jury, and directing a verdict for the company, because, as it contends, the undisputed testimony showed that Amato was guilty of culpable 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 negligence on his part not to keep a lookout for a coming engine, in view of :he boss’ assurance that there was none to come. The case is quite within ;he 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.