Baltimore & O. R. v. Meyers

JENKINH, Circuit Judge (after stating the facts). The statute organizing this court (26 Stat. 826, c. 517) provides for appeals or writs of error to the supreme court from the circuit court in any case in which the jurisdiction of the court is in issue, and that in such case the question of jurisdiction shall alone be certified to the supreme court from the court below. The circuit courts of appeals have appellate jurisdiction to review the final decisions of thq lower courts in all cases other than those authorized to he removed into the supreme court. In McLish v. Roff, 141 U. S. 661, 668, 12 Sup. Ct. 118, the supreme court, construe this provision of the statute, and assert that the defeated party “must elect whether he will take a writ of error, or appeal to the supreme court on the question of jurisdiction alone, or to the circuit court of appeals upon the whole case. If the latter, then the circuit court, of appeals may, if it deem proper, certify the question of jurisdiction to this court.” Notwithstanding our recent ruling in Manufacturing Co. v. Barber, 9 U. S. App. — , 9 C. C. A. 79, 60 Fed. 465, that when the sole question presented by the record goes to the jurisdiction of the court below we are without authority to determine the question, we do not doubt, in view of the recent decision of the supreme court in Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353, that when, as in this case, other questions are involved, we are authorized to determine that question as well as the others, in the case referred to the court say: “Tlie act did not contemplate several appeals in the same suit, at the same time, but gave to a party in the suit in the circuit court, where the question of the jurisdiction of the court over the parties or subject-matter was raised and put in issue upon the record at the proper time and in the proper way,, [372] the right to a review by this court, after final judgment or decree against him, of the decision upon that question only, or by the circuit courts of appeals on the whole ease.” And, even were this otherwise, we cannot doubt that we may consider the question of jurisdiction, so far as necessary to satisfy ourselves whether, in the exercise of the discretion lodged with us, the question of jurisdiction involved is sufficiently grave to warrant its submission to the supreme court upon proper certificate, as required by the ruling in Maynard v. Hecht, supra. The averment of the declaration is that the two railway companies jointly operate a railroad within the state of Indiana. It is insisted that the state court had no jurisdiction because there is no authority to sue foreign corporations which have formed partnership or other joint combinations for doing business in the state of Indiana, and that there is no authority for any such combination of corporations to be sued -in the federal court. It. does not appear in what manner the two railway companies are interested in the operation of this railroad; and we deem it entirely immaterial to inquire. The statutes of Indiana provide that a.'railroad corporation may be sued in any county in which or through which its line of road runs; and it was clearly competent for the state courts to take jurisdiction of a suit of this character, for injuries inflicted in the operation of a railway in Indiana by two or more railway corporations co-operating in the management of the railway, irrespective of any question of power in those companies to form such combinations. ' If they acted in so doing without authority of law, they are none the less liable for injuries incurred through negligence in their management of the road. One cannot shield one’s self from responsibility for wrong done because, in the doing of the wrong, he was acting without authority of law. So far as concern’s the jurisdiction of the «federal court, but a word is necessary. The diverse citizenship of the parties is confessed. The respective railroad companies are chartered under the laws of, and are citizens of, states other than the state of Indiana, whereof the plaintiff below was a citizen. The companies removed the cause into the federal court upon the ground of such diverse citizenship. The provision that no civil suit shall be brought in a circuit or district court of the United States, against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant, confers an exemption, in the nature of a personal privilege, that may be waived, and has no application where the defendant to a suit in the state court, who is a nonresident of the state, removes the cause into the federal, court of that state. It is somewhat obscurely suggested that no proper service was had in the state court. The record does not disclose the nature of the service, and it does not appear that any application was made to the state court to vacate the service. The record does make known that the parties appeared upon the application for the publication of depositions. That was probably a general ap [373] pearance to the suit; but it is only necessary to observe, with, respect to the suggestion of improper service of process, that jurisdiction is only challenged here by demurrer to the amended declaration, and such pleading does not disclose the nature of the service of process, or present for determination any question with respect thereto, and that the filing of such a pleading is a general appearance to the action, and a waiver of any defective service of process. The objection to the jurisdiction is of such slight merit that we do not feel ourselves warranted in the submission of the question to the supreme court. The other assignments of error go to the right of action, and may be considered together. The defendant in error desired to stop at Alida, but was informed by the brakeman, whose principal duty was to assist passengers to embark and to alight from the train, that the stoppage was not ordinarily made at the station at Alida, but that the train necessarily stopped before coming to the railway crossing east of Alida, and that he could leave the train at such crossing. As the train approached and was within a mile of the crossing, the brakeman opened the front door of the car in which the defendant in error was seated, and motioued him to come forward. Fie took his stand upon the platform, holding firmly to the railing (the brakeman stationing himself upon the rear platform of the forward car), and. as is alleged, and as the jury found, while he was so standing there awaiting the stoppage of the train, and by reason of the sudden, unusual, and unnecessary application of the air brakes, the train suddenly, and with great force, jerked and threw him from the train. The question presented, is whether the act of the defendant in error, in so standing upon the platform while the train was in motion, was such an act of contributory negligence as debars a recovery. Undoubtedly, it is more or less perilous for a passenger to stand upon the platform of a car in motion; and if there be no justification for the act he would be chargeable with negligence contributing to hfe injury, for no one has right to place himself unnecessarily in a situation of manifest danger. Wills v. Railroad Co., 129 Mass. 351. We are quite in accord with the principle urged to our attention by counsel for the plaintiff in error, stated by Mr. Patterson in his work on Hallway Accidents (section 276), as follows: •‘The fact that a servant of the railway Invited or even directed the passenger to occupy a position of danger will not render the railway liable for injuries resulting' therefrom, if the danger was so obvious that a reasonable man would not have obeyed the servant or accepted his invitaiion. Nor will tlie railway bo liable to a passenger who is injured in alighting at a dangerous place because the conductor tells him that passengers sometimes alight there, but does not either invite or command the particular passenger to alight at, that point. Nor will the railway be hold responsible if the servant was not expressly or impliedly authorised to give the invitation.” It will be observed that one factor in the rule is that the danger must be so obvious that a reasonable man would not have obeyed the servant or accepted his invitaiion, for the test of negligence, in such case, is what, under the circumstances, a reason [374] able man would ordinarily have done. Thus, in Railroad Co. v. Jones, 95 U. S. 439, a laborer in the service of the company claimed he had been directed to ride on the pilot of the locomotive, and in so doing- was injured. The court held that the location was so obviously a place of peril that there was no justification in his taking such a risk, if he had been directed so to do, and it was said that He might as well have obeyed a suggestion to put himself on the track before the advancing- wheels of a locomotive. But whether or not one is guilty of negligence in standing upon the platform of a car in motion is dependent upon the circumstances of the case, and is determined by the consideration whether a reasonably prudent man, under the circumstances existing, would have done so or not. The duty of the passenger is dictated and measured by the exigency of the occasion. Here the defendant in error had announced to him, by the act of the brakeman, that the'train was about to come to a stop. He was notified and directed to come forward that he might alight so soon as the train had stopped. He had been warned that the train would stop but for a moment, and that he must be in readiness to alight promptly. He was notified to take the position which he did upon the platform of the car. He had a right to presume that the train was abating its speed, with a view to stopping. We think it was a proper question to be submitted to the jury whether the defendant in error, under the circumstances, was guilty of an act. which a reasonably prudent man in like situation would not have done. Under the circumstances, we cannot say, as a matter of law, that he had no right to rely on the judgment of the servant of the company in charge of the car, and could not rightfully assume that in following his direction he would not expose himself to unnecessary or unusual peril. Filer v. Railroad Co., 59 N. Y. 351; Railroad Co. v. McCloskey, 23 Pa. St. 526; Railroad Co. v. Kelly, 92 Ind. 371; Railroad Co. v. Carper, 112 Ind. 26, 13 N. E. 122, and 14 N. E. 352. There may be instances of voluntary and unnecessary riding upon the platform of a car in motion, which would be held by the court, as matter of law, to amount to contributory negligence preventing a recovery. Each case must be resolved in the light of its attendant circumstances. The present case, in our judgment, is-one in which we cannot say, as matter of law, that the act of the defendant in error was unjustifiable. The question of contributory negligence is generally a question of mixed fact and law, to-be resolved by the jury under proper instructions from the court,, except where the negligence is so clear that the court would be authorized to withdraw the consideration of the question from the-jury, and determine that negligence as matter of law. Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85. This we cannot do in the present case. The company was clearly responsible for the act of the brakeman in inviting the passenger to the platform, under the circumstances alleged in the declaration and found by the jury. A corporation is responsible for acts of an agent performed in the375 discharge of duty within the general scope of his agency, although the particular act may not have been directly authorized. It was the duty of the brakeinan to assist passengers to alight. Ills invitation to the passenger was in the discharge of that duty. Although, in so doing, he violated a rule of the company, and thereby caused injury to the passenger, the danger of complying with the invitation not being obvious, the master cannot escape liability for the act of the servant performed in the discharge of his duty. It is urged that there is exemption from liability here by reason of the provision of the statute of Indiana (Bev. St. § 3928) which declares: ‘•In case any passenger on any railroad shall be injured on the platform of a car, or any baggage, wood, or freight car in violation of the printed regulations of tho company posted up at the time in a conspicuous place inside ol‘ its passenger car then in the train: such company shall not be liable for the injury, provided said company at the time furnished cars sufficient for the proper accommodation of the passengers.” It was found by the jury that, on the inside of the door of the car in which the defendant in error was riding, the company had placed a notice warning passengers from riding on the platform when the train was in motion. This statute was obviously intended to absolve the company from responsibility for damages to passengers imprudently and improperly standing or riding upon the platform; but we cannot conceive that it was designed to apply to a case of a passenger justifiably leaving a car, the platform being the only mode of egress, and the defendant in error being there, by invitation of the servant of the company, for the purpose of alighting. He was not, we think, riding upon the platform, within the meaning of the statute. Buell v. Railroad Co., 31 N. Y. 314; Railroad Co. v. Miles, 88 Ala. 256, 6 South. 696. The other objections urged to the judgment are of minor importance, and we do not find it necessary to consider them. Our conclusion is that the judgment must be affirmed.