Mr. William B. McFarland, with whom Mr. Robert Early McFarland was on the brief, for petitioner.

Mr. W. C. Herron, with whom The Solicitor General and Mr. Assistant Attorney General Stewart were on the brief, for the United States.

MR. JUSTICE BRANDEIS delivered the opinion of the court.

Louie, an Indian, was indicted under § 273 of the Penal Code in the District Court of the United States for the District of Idaho, Northern Division, for the murder of another Indian within the limits of the Coeur d'Alene Reservation. A motion to dismiss for want of jurisdiction was overruled and the defendant was tried and convicted. By motion in arrest of judgment, he objected in terms to the jurisdiction of the court over the person of defendant and over the crime charged on the ground that before the time of the alleged crime he had been declared competent and the land on which the crime was alleged to have been committed had been allotted and deeded to him in fee simple. Compare United States v. Celestine, 215 U. S. 278. This motion also was overruled; the defendant was sentenced; and the case was taken on writ of error to the United States Circuit Court of Appeals for the Ninth Circuit. That court, one judge dissenting, dismissed the writ of error for want of jurisdiction on the ground that, since the sole question presented was whether the District Court had jurisdiction, its decision could be reviewed only by direct writ of error from this court to the District Court. See United States v. Jahn, 155 U. S. 109, 114, 115; compare Raton Water Works Co. v. City of Raton, 249 U. S. 552. The dissenting judge was of opinion that the Circuit Court of Appeals had jurisdiction of the writ of error, because an additional error relating to the merits had been assigned there, although not raised below.

Opinion of the Court.

254 U.S.

A writ of certiorari was granted by this court. 253 U. S. 482.

We have no occasion to consider the question on which the Circuit Court of Appeals divided. The motions made by defendant in the District Court raised a question not of the jurisdiction of that court, but of the jurisdiction of the United States. The contention was, in essence, that, by reason of the facts set forth in the motions, the defendant was in respect to the acts complained of subject to the laws of the State of Idaho and not to the laws of the United States. In other words that he did not violate the laws of the United States. Compare United States v. Kiya, 126 Fed. Rep. 879, 880. Section 328 of the Penal Code provides that an Indian committing murder on another Indian "within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same penalties as are all other persons committing" the same crime "within the exclusive jurisdiction of the United States." United States v. Kagama, 118 U. S. 375; Donnelly v. United States, 228 U. S. 243, 269, 270. The defendant, in effect, denied that the killing was, in the statutory sense, within the reservation. If this was true an essential element of the crime against the United States was lacking; as much so as if it had been established in United States v. Sutton, 215 U. S. 291, or in United States v. Soldana, 246 U. S. 530, that the region into which liquor was introduced was not Indian country. That the District Court for Idaho had jurisdiction to determine whether the locus in quo was a part of the reservation was not questioned. By § 78 of the Judicial Code the whole State of Idaho is comprised within the District of Idaho; by paragraph second of § 24 district courts have original jurisdiction of all crimes and offenses cognizable under the authority of the United States; and the defendant was arrested within the District of Idaho.

548.

Opinion of the Court.

Since defendant's motions in the District Court did not raise a question properly of the jurisdiction of the court but went to the merits, there was no basis for a direct writ of error from this court. Pronovost v. United States, 232 U. S. 487; Lamar v. United States, 240 U. S. 60, 65. He properly sought review in the Circuit Court of Appeals. In United States v. Celestine, 215 U. S. 278, and United States v. Pelican, 232 U. S. 442, where the defense was similar to that presented here, and in United States v. Sutton, supra, and United States v. Soldana, supra, the cases came to this court by direct writ of error to the District Court under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. Hallowell v. United States, 221 U. S. 317, where a similar question was involved, came here on certificate. In Clairmont v. United States, 225 U. S. 551, 554, it was inadvertently assumed without discussion that the question involved was one of the jurisdiction of the District Court.

The judgment of the Circuit Court of Appeals is reversed and the case remanded to that court for further proceedings in conformity with this opinion.

Reversed.

THE CHIEF JUSTICE took no part in the decision of this

case.

PANAMA RAILROAD COMPANY v. PIGOTT, A MINOR, BY HIS GUARDIAN AD LITEM, MORRELL.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 133. Submitted January 13, 1921.-Decided January 24, 1921.

1. By the law of Panama, a railroad company is liable for the negligence of its servants and damages are recoverable for pain in a case of personal injuries. P. 553. Panama R. R. Co. v. Toppin, 252 U. S. 308.

2. Whether or not Panama law on these subjects should be judicially ́noticed by the District Court for the Canal Zone in an action involving injuries suffered in Panama, held, that the defendant railroad company was not harmed in this case by leaving it to be determined by the jury on conflicting evidence of experts. Id.

3. Due care may require a railroad company to keep a flagman at a dangerous street crossing. Id.

4. Conduct that would be contributory negligence as a matter of law in an older person may not be so in a boy of seven. Id.

256 Fed. Rep. 837, affirmed.

THE case is stated in the opinion.

Mr. Frank Feuille for plaintiff in error. Mr. Walter F. Van Dame was also on the brief.

Mr. Theodore C. Hinckley for defendant in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action brought in the District Court of the Canal Zone for the Division of Cristobal to recover from the Panama Railroad Company for personal injuries suffered by the minor, Pigott, in the City of Colon, Republic

of Panama. Pigott recovered a judgment which was affirmed by the Circuit Court of Appeals. 256 Fed. Rep. 837. The case is brought to this Court under the Panama Canal Act, August 24, 1912, c. 390, § 9, 37 Stat. 560, 566. The facts may be stated in a few words. The minor, a boy of seven, was run over when attempting to cross the railroad track on a street in Colon. There was evidence that the crossing was much used and that, especially in the afternoon, the time of the accident, there usually were many children about; there were, however, neither gates nor a watchman at the place. A hedge higher than the child somewhat obstructed the view. The engine was backing a box car and did not have the lookout required by the company's rules There was evidence also that it gave no warning by bell or whistle. In short by the criteria of the common law the plaintiff had a right to go to the jury with his case.

The fundamental argument for the plaintiff in error is that the law of Panama was not applied in determining the principles of liability or in fixing the rule of damages. It is contended that if, as there was evidence to prove, due care had been used in the selection of servants by the railroad, the company was not answerable for their negligence, and that in any event there could be no recovery for pain. Both of these contentions are simply attempts to reargue what was decided in Panama R. R. Co. v. Toppin, 252 U. S. 308. The plaintiff in error certainly did not get less than it was entitled to when, in view of contradictory testimony from lawyers on the two sides, the Court left the law of Panama to the jury. The Court was warranted in also leaving to the jury the question whether proper care required the company to have a flagman or gate at the crossing and the other safeguards that we have mentioned. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408. In view of the extreme youth of the plaintiff we cannot say that the court erred in allowing the jury