66 F. 922 (1st Cir. 1895), 90., Grand Trunk Ry. Co. v. Tennant

Docket Nº:90.
Citation:66 F. 922
Party Name:GRAND TRUNK RY. CO. v. TENNANT. [1]
Case Date:February 01, 1895
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 922

66 F. 922 (1st Cir. 1895)

GRAND TRUNK RY. CO.

v.

TENNANT. 1

No. 90.

United States Court of Appeals, First Circuit.

February 1, 1895

Almon A. Strout (C. A. Hight and H. N. Rice, on the brief), for plaintiff in error.

Orville D. Baker, for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge.

Page 923

PUTNAM, Circuit Judge.

After the jury had been instructed, and while they were out considering their verdict, the plaintiff below, by leave of the court, amended the writ by describing herself as a citizen of the state of Maine, and the defendant below as a citizen of the dominion of Canada. That the court had power to allow this amendment, that it speaks as of the date of the writ, and that it was seasonable, involve too familiar rules to need comment by us. Since Insurance Co. v. French, 18 How. 404, it is settled law that, for jurisdictional purposes, it is not sufficient to allege with reference to a domestic corporation, party plaintiff or defendant, merely that it is a citizen of the state named. There must be an averment that it was created by the laws of that state, or to that effect. It seems to be accepted in Steamship Co. v. Tugman, 106 U.S. 118, 121, 1 Sup.Ct. 58, that the substance of this rule applies to a foreign corporation, party plaintiff or defendant. Even with the aid of the amendment, it is not specifically alleged that the corporation, defendant below, is or was an alien corporation, in that it was created by an alien state, or to that effect. But in the pleadings-- indeed, in the very objection filed by it to the amendment, which objection is made a part of the record-- the defendant below is described as the 'Grand Trunk Railway Company of Canada. ' That the mere fact of the incorporation in its title of the name of a certain state does not necessarily constitute or supply the allegation required was settled in Piquignot v. Railroad Co., 16 How. 104. But less appeared in that case than in the case at bar. Here it was expressly stated in the declaration that the defendant below is a corporation; and, in the absence of any objection taken by it in the court below, it may be presumed that the words 'of Canada' describe the country of its creation. In the absence of any objection made in the court below on this particular proposition, the record may fairly be construed against the defendant below; and, as the words 'of Canada' are fairly susceptible of the construction claimed by plaintiff below, we give them that construction, and hold that the record, as it stands, alleges the proper jurisdictional facts. There is sufficient doubt not to have required the court to notice the matter of its own motion. King v. Asylum, 12 C.C.A. 145, 64 F. 331, 332.

We find no error in the overruling of the request of the defendant below for the direction of a verdict in its favor on the whole evidence in the case. Even if the case had stood in its favor with reference to all those parts of it relating to the car in question, which we will refer to again, it was yet a proper one for the jury, under suitable instructions. Even if none of the circumstances were in dispute, the inferences to be drawn from them were fairly so, and the case as a whole comes within Railway Co. v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, and Railroad Co. v. Powers, 149 U.S. 43, 45, 13 Sup.Ct. 748, affirmed in Railroad Co. v. Everett, 152 U.S. 107, 113, 14 Sup.Ct. 474.

With reference to the specific exceptions, we remark, at the outset, that for the most part the principles of law involved are

Page 924

familiar ones, and the sole duty of the court was to apply them to a class of facts easily apprehended by juries. Therefore, to make any remarks touching the various questions discussed, except to state generally that the court below correctly and carefully instructed the jury on the main case, would be but a useless repetition of common learning. Out of the mass of cases we will refer to three only, which bear directly on the propositions specially urged on us, touching the alleged want of care on the part of the employe, and the risk claimed to have been assumed by him: Kane v. Railway Co., 128 U.S. 91, 94, 9 Sup.Ct. 16; Railroad Co. v. Everett, 152 U.S. 107, 112, 14 Sup.Ct. 474; Railroad Co. v. Babcock, 154 U.S. 190, 200, 14 Sup.Ct. 978. There are, however, two points requiring our particular consideration.

The person for whose injuries the suit was brought was a brakeman in the employ of the defendant below. He was at work, in the usual course of his employment, at the rear end of a few freight cars backing down, in the nighttime, in the winter season, upon what was known as 'Brown's Wharf,' in Portland, for the purpose of coupling to a freight car on the wharf, and drawing it out. He rode down the wharf on the end of the car which was to be shackled to the car previously on the wharf, and, when near the latter, stepped or jumped to the side of the track, under such circumstances that the jury might have found that it was for the purpose of signaling the engineer. An accumulation of snow or ice alongside the track caused him to slip under the wheels of the car, and there he was fatally injured. The plaintiff below claimed that the car was insufficiently and negligently constructed with reference to the steps, handles, or guards at its end, and that if it had been sufficiently and properly constructed and equipped in this respect, the deceased could have retained his hold, and that in this way the alleged peculiar construction of the car contributed to the result. It was claimed by the defendant below that the car was a foreign car temporarily on its road, and the court below apparently assumed, and it did so correctly, that there was evidence to go to the jury on this proposition. There was no claim that the car was out of repair, and the objection to it related to it in its normal condition; and the jury might have been allowed to find that its peculiarities were patent to the slightest inspection or observation by any one accustomed to handling freight cars.

The essential allegations of the declaration touching these alleged defects were as follows:

'And the plaintiff further avers that on said 24th day of January, 1891, said defendant corporation, wholly disregarding its duty in the several respects aforesaid, wrongfully and negligently provided unsuitable and unsafe tracks along said Commercial street, and upon and over said wharf, and negligently allowed said tracks, and the sides and wharf adjoining the same, where the duties of the plaintiff required him to step. alight, and stand, and for a considerable distance therefrom, to become incumbered, obstructed, sloping, and dangerous by improper accumulations of snow, sleet, and ice, and provided...

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