225 U.S.




No. 304.. Argued April 30, 1912.-Decided June 10, 1912.

To give this court jurisdiction under § 709, Rev. Stat., it must appear upon the record, and not by certificate of the judge, that a right under the Constitution or laws of the United States was set up and denied. While such a certificate may make more certain the fact that the Federal right was asserted and denied, it is insufficient to confer jurisdiction if the record itself does not show the fact. Louisville & Nashville R. R. v. Smith, 204 U. S. 551.

The fact that a case in the state court asserts a claim based on a Federal statute, does not give this court jurisdiction to review the judgment under § 709, Rev. Stat., if none of the exceptions are based on the refusal of the court to make a definite construction of the act as requested by the plaintiff in error.

Where the case comes up under § 709, Rev. Stat., this court is not one of general review. It can reëxamine only those rulings which denied Federal rights specially set up.

It is the duty of counsel asking in the state court for a particular construction of a Federal statute involved in the case to put the request in such definite terms that the record will show that it was a claim of Federal right specially set up as required by § 709 in order to give this court jurisdiction.

The trial court is not under obligation to give special charges based on only a part of the evidence.

Where the only defense to an action for personal injuries by an em

ployé of an interstate railway carrier is contributory negligence on the part of the plaintiff in going into a car in violation of a rule requiring him to remain in another car, no construction of the provision of the Employers' Liability Act that the employé can only recover if injured while employed by the carrier is involved whichis reviewable by this court, unless the request is definitely set up as a Federal right specially asserted and denied.

Excepting to a part of the charge by saying that an employé's going

from the baggage car into the express car of a train is such an act that a reasonably prudent man would not have done under the cir

Argument for Plaintiff in Error.

225 U. S.

cumstances does not raise specific questions as to the construction of the Employers' Liability Act under which the action was brought and give this court jurisdiction to review under § 709, Rev. Stat. Writ of error to review 152 No. Car. 524, dismissed.

THE facts, which involve the jurisdiction of this court under § 709, Rev. Stat., to review the judgment of a state court in a case brought under the Federal Employers' Liability Act, are stated in the opinion.

Mr. Walter H. Neal and Mr. Benjamin Micou, with whom Mr. Hilary A. Herbert, Mr. Richard P. Whiteley and Mr. E. T. Cansler were on the brief, for plaintiff in


This court has jurisdiction.

The case was a civil action instituted by defendant in error against plaintiff in error under the Federal Employers' Liability Act of 1908.

The record itself is the best evidence that the suit was instituted under the act.

No specific reference is made in the complaint to the Federal act by name, but under the rules of pleading this was neither necessary nor proper. Emerson v. St. Louis & H. Ry. Co., 111 Missouri, 161; Kansas City, M. & B. R. Co. v. Flippo, 35 So. Rep. 457; 138 Alabama, 487.

If the allegations of the complaint show that the action is based on a public statute not penal, it is sufficient, without counting on or reciting the statute. Peru v. Barrett, 100 Maine, 213; Voelker v. Chicago Ry. Co., 116 Fed. Rep. 867; Thorton's Employers' Act, § 175; Missouri Pacific Ry. Co. v. Brinkmeier (Kansas), 93 Pac. Rep. 622; Kan. City M. & D. R. R. Co. v. Flippo, 35 So. Rep. 460; Lemons v. L. & N. R. R. Co. (Ky.), 125 S. W. Rep. 702.

Whether the complaint sufficiently charges a cause of action under the Federal statute is one of pleading and

225 U.S.

Argument for Plaintiff in Error.

is necessarily governed by the state practice. Hancock v. Railroad, 124 Nor. Car. 222; see also 20 Ency. of Pleading & Practice, p. 594 and notes.

The case was tried by the trial court of North Carolina under this Federal statute.

Evidence was offered and admitted to establish the contention of plaintiff in error on the issues joined in the complaint and answer.

The charge, as given by the court, would find no place in an action under the North Carolina statute, or at common law.

The highest court of the State, the Supreme Court, reviewed the case under this Federal statute.

The opinion of that court may be examined to ascertain whether the Federal question was presented and passed upon. San Jose Land Co. v. San Jose Ranch Co., 189 U. S. 180; Grosse v. Mortgage Co., 108 U. S. 477; Fire Association v. New York, 119 U. S. 110.

Even where the Federal question was first raised in a petition for a rehearing, after the case had been decided adversely by the Supreme Court of the State, this court has taken jurisdiction. Mallett v. St. North Carolina, 181 U. S. 592; Leigh v. Green, 193 U. S. 85.

The writ of error was granted by the Chief Justice of the Supreme Court of North Carolina, upon a petition that declared that the case was brought under the Federal statute, and that Federal questions were presented, and the construction placed thereon was adverse to the construction asked by the plaintiff. Illinois v. McKendree, 203 U. S. 525; Rector v. City Bank, 200 U. S. 405, 412; Marvin v. Trout, 199 U. S. 21.

The case must have been tried under the Federal act and not under the state law.

The act supersedes both the common and statutory law of the several States bearing on the subject covered by said act. Fulgham v. Middling Valley R. R. Co., 167

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Argument for Plaintiff in Error.

225 U. S.

Fed. Rep. 662; Dewberry v. So. Ry. Co., 175 Fed. Rep. 307; Clark v. So. Pac. Co., 175 Fed. Rep. 122; Cound v. Atchison, T. & S. F. Ry. Co., 173 Fed. Rep. 527; Lemon's Admr. v. L. & N. Ry. Co., 125 S. W. Rep. 103; State v. Tex. & No. R. R. Co., 124 S. W. Rep. 984; Calhoun v. Cent. of Ga. Ry. Co., 67 S. E. Rep. 274.

The suit was brought and the case tried in the state courts under the Federal act. If so, then presumably the proceedings had at the trial are properly referable to that act, and the rights and liabilities of the respective parties arise under the act. The plaintiff below alleged in his complaint, and offers evidence in support of the allegation, that he was injured while actually employed by the receivers of the plaintiff in error in interstate commerce. That is, while actually engaged in discharging the duties of a baggage master. This having been his allegation, it follows that if he recovers it must be upon proof conforming to said allegation. He could not sue under the Federal statute and recover at common law.

Plaintiff in error does not ask the court either to go into any controverted questions of fact, or to pass on the admissibility of any evidence excluded from the jury, but contends that it was entitled to instructions construing the law as applicable to admitted evidence in its aspect most favorable to the plaintiff in error.

Where a party relies upon an act of Congress, and the questions construed by the court, and upon which the case turned, were whether the party had brought himself within the scope of that act, a Federal question is presented. San Jose Land Co. v. Ranch Co., 189 U. S. 177; St. L. I. M. & S. R. Co. v. Taylor, 210 U. S. 281.

The Federal question was properly and seasonably presented in the court below.

Where a servant departs from the sphere of his assigned duties, the relation of master and servant is considered as temporarily suspended, and his position then becomes

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that of a trespasser or a bare licensee. Thornton, Employers' Liability, § 24; 2 Labatt, Master & Servant, § 629; White on Personal Injuries, § 227; 3 Elliott on Railroads, § 1303.

Mr. William C. Douglass for defendant in error.

MR. JUSTICE LURTON delivered the opinion of the court.

This was an action by an employé of the plaintiff in error to recover damages for severe and permanent personal injuries alleged to have been received while in its service. The plaintiff alleged that he was baggage-master and flagman on one of the defendant's passenger trains, running from Portsmouth, Virginia, to Monroe, North Carolina. That a head-on collision occurred with another of defendant's trains, whereby plaintiff and others were injured, and that the collision was due to the negligence of defendant's officers and agents. The answer was, in substance, a general denial for want of knowledge. There was a jury, verdict and judgment for the defendant in error, which was later affirmed by the Supreme Court of the State. This writ of error was allowed by the Chief Justice of that court upon the ground that "there was drawn into question a right, privilege or immunity claimed by the railroad company under a statute of the United States, and the decision was against such right, privilege or immunity so claimed and specially set up by said defendant," etc. Such a certificate is, however, not sufficient to confer jurisdiction to review the judgment of a state court under § 709, Revised Statutes. That there was set up and denied some claim or right under the Constitution or a statute of the United States must appear upon the record, and such a certificate is only of value to make more definite or certain that the Federal right was definitely asserted and decided. Sayward v. Denny, 158 VOL. CCXXV-31

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