not sufficiently allege that at the time of the injury the defendant was engaged and the plaintiff employed in interstate commerce. During the trial the defendant sought some advantage from this and the court, over the defendant's objection, permitted the complaint to be so amended as to state distinctly the defendant's engagement and the plaintiff's employment in such commerce. Both parties conceded that what was alleged in the amendment was true in fact and conformed to the proofs, and that point has since been treated as settled. The defendant's objection was that the original complaint did not state a cause of action under the act of Congress, that with the amendment the complaint would state a new cause of action under that act, and that, as more than two years had elapsed since the right of action accrued, the amendment could not be made the medium of introducing this new cause of action consistently with the provision in § 6 that "no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued." Whether in what was done this restriction was in effect disregarded is a Federal question and subject to reëxamination here, however much the allowance of the amendment otherwise might have rested in discretion or been a matter of local procedure. Atlantic Coast Line v. Burnette, 239 U. S. 199. If the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action and was not affected by the intervening lapse of time. Texas and Pacific Ry. v. Cox, 145 U. S. 593, 603604; Atlantic and Pacific R. R. v. Laird, 164 U. S. 393; Hutchinson v. Otis, 190 U. S. 552, 555; Missouri, Kansas & Texas Ry. v. Wulf, 226 U. S. 570, 576; Crotty v. Chicago Great Western Ry., 95 C. C. A. 91; S. C., 169 Fed. Rep. 593. But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running

Sicard v.

of the limitation was not theretofore arrested. Davis, 6 Pet. 124, 140; Union Pacific Ry. v. Wyler, 158 U. S. 285; United States v. Dalcour, 203 U. S. 408, 423. The original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina and elsewhere, that the plaintiff was in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant's trains, and that the injury was sustained at Cochran, Virginia, through the defendant's negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition. Of course, the right of action could not arise under the laws of North Carolina when the causal negligence and the injury occurred in Virginia; and the absence of any mention of the laws of the latter State was at least consistent with their inapplicability. Besides, the allegation that the defendant was operating a railroad in States other than Virginia was superfluous if the right of action arose under the laws of that State, and was pertinent only if it arose in interstate commerce, and therefore under the act of Congress. In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of Congress. And this being so, it must be taken that the amendment merely expanded or amplified what was alleged in support of that cause of action and related back to the commencement of the suit, which was before the limitation had expired.

Error is assigned upon a refusal to instruct the jury, as matter of law, that there was no evidence of actionable negligence on the part of the defendant, and that the evidence conclusively established an assumption by the plaintiff of the risk resulting in his injury. Both courts, trial and appellate, held against the defendant upon these

points. They involve an appreciation of all the evidence and the inferences which admissibly might be drawn therefrom; and it suffices to say that we find no such clear or certain error as would justify disturbing the concurring conclusions of the two courts upon these questions. Great Northern Ry. v. Knapp, 240 U. S. 464; Baugham v. New York &c. Ry. (decided this day, ante, p. 237). Complaint also is made of the instructions given upon the measure of damages. The criticism is directed against mere fragments of this part of the charge, and the objections made at the time were not such as were calculated to draw the trial court's attention to the particular complaint now urged. The inaccuracies were not grave and the charge as a whole was calculated to give the jury a fair understanding of the subject. The defendant therefore is not in a position to press the complaint, especially as it was not dealt with in the opinion of the appellate court. See Magniac v. Thompson, 7 Pet. 348, 390; McDermott v. Severe, 202 U. S. 600, 610; Illinois Central R. R. v. Skaggs, 240 U. S. 66.

Judgment affirmed.

BANKERS TRUST COMPANY v. TEXAS AND PACIFIC RAILWAY COMPANY.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 889. Argued April 12, 13, 1916.-Decided May 22, 1916.

In a suit brought by a corporation existing under the laws of New York and therefore a citizen of that State, against the Texas & Pacific Railway Company, incorporated and existing under an act of Congress and certain supplemental and amendatory acts, held that: The provision in § 1 of the act of 1871 under which the Texas & Pacific

Railway was incorporated, that such company may sue and be sued in all courts of law and equity within the United States, was not intended to confer jurisdiction upon any particular court, but merely to render the company capable of suing and being sued in any court whose jurisdiction as otherwise competently defined was adequate to the occasion.

It is reasonable to presume that if Congress has the purpose to take a class of suits out of usual jurisdictional restrictions relating thereto, it will make its purpose plain.

Under the Constitution, Congress possesses power to invest subordinate Federal courts with original jurisdiction of suits at law or equity arising under the Constitution, laws or treaties of the United States and this power has been exercised at various times. Such jurisdiction has by § 24, Judicial Code, been given to and is now vested in, the District Courts subject to a restriction as to the amount in controversy.

A corporation chartered by an act of Congress is not only a creature of

that law, but all its rights are dependent thereon and a suit by or against such a corporation is one arising under a law of the United States.

Section 5 of the act of January 28, 1915, c. 22, 38 Stat. 583, providing that no court of the United States shall have jurisdiction of any suit by or against any railroad company on the ground that it was incorporated under an act of Congress, is amendatory of the Judicial Code and renders the fact of incorporation under an act of Congress a negligible factor in determining whether a suit by or against a railroad company is one arising under a law of the United States so as to give the District Court jurisdiction thereof.

A corporation, such as the Texas & Pacific Railway Company, incorporated under acts of Congress, and whose activities and operations are not by its charter confined to any State, but are intended to be, and are, carried on in different States, is not a citizen of a State within the meaning of the jurisdictional statute.

While such a corporation is a citizen of the United States in the sense that a corporation organized under the law of a State is a citizen of that State, it is not within the declaration of the Fourteenth Amendment that native born and naturalized citizens of the United States are citizens of the State in which they reside.

Congress has not clothed railroad corporations organized under acts of Congress with state citizenship for jurisdictional purposes as it has done in respect to National banks.

A suit by a citizen of a State against a railroad corporation organized

and existing under an act of Congress is not a suit between citizens of different States of which the District Court has jurisdiction under § 24, Judicial Code, as amended by the act of January 28, 1915.

THE facts, which involve the jurisdiction of the District Court of a suit against a corporation incorporated by a statute of the United States, are stated in the opinion.

Mr. Maurice E. Locke, with whom Mr. William W. Green was on the brief, for appellant:

Jurisdiction to hear and determine such suits as this against the Texas and Pacific Railway Company was expressly vested in the appropriate Federal courts by the act of Congress incorporating said company. Act of March 3, 1871, c. 122, § 1, 16 Stat. 573; Act of May 2, 1872, c. 132, § 1, 17 Stat. 59; Smith v. Un. Pac. R. R., 2 Dillon, 278; Bauman v. Un. Pac. R. R., 3 Dillon, 367; Pac. R. R. Removal Cases, 115 U. S. 1, 24; Matter of Dunn, 212 U. S. 374, 384; Osborn v. Bank, 9 Wheat. 738; Magill v. Parsons, 4 Connecticut, 317, 336.

The jurisdiction of this case expressly conferred by the act of March 3, 1871, has not been taken away by the act of January 28, 1915. Cases supra and Magee v. Un. Pac. R. R., 2 Sawyer, 447; Un. Pac. R. R. v. McComb, 1 Fed. Rep. 799; Tex. & Pac. Ry. v. McAllister, 59 Texas, 349; Myers v. Un. Pac. Ry., 16 Fed. Rep. 292; Leather Manufacturers' Bank v. Cooper, 120 U. S. 778; Petri v. Commercial Nat. Bank, 142 U. S. 644; Butler v. National Home, 144 U. S. 64; Wash. & Idaho R. R. v. Coeur d'Alene Ry., 160 U. S. 77; Tex. & Pac. Ry. v. Cody, 166 U. S. 606; Continental Nat. Bank v. Buford, 191 U. S. 119; Tex. & Pac. Ry. v. Archibald, 170 U. S. 665; Tex. & Pac. Ry. v. Barrett, 166 U. S. 617; Tex. & Pac. Ry. v. Behymer, 189 U. S. 468; Charnock v. Tex. & Pac. Ry., 194 U. S. 432; Tex. & Pac. Ry. v. Dashiell, 198 U. S. 521; Tex. & Pac. Ry. v. Gentry, 163 U. S. 353; Tex. & Pac. Ry. v. Swearingen,