*605

the course of procedure is to be in accordance with the established rules of said respective courts, and of such additions and modifications thereof as they may adopt. Section 4.

By the Tucker act, section 1079 of the Revised Statutes was expressly repealed, and it was declared that the provisions of section 1080 shall apply to cases under that act. Section 8.

The ninth section of the act provides that: "The plaintiff or the United States, in any suit brought under the provisions of this act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limitations therein contained. The modes of procedure in claiming an appeal or writ of error shall conform in all respects, as near as may be, to the statutes and rules of court governing appeals and writs of error in like causes."

The act of March 3, 1887, it will be observed, expressly repealed only section 1079 of the Revised Statutes, and all laws and parts of laws that were inconsistent with that act.

In U. S. v. Jones, 131 U. S. 1, 16, 9 Sup. Ct. 669, it was held that the jurisdiction given to the court of claims by the act of 1887 was precisely the same as that given in the acts of 1855 and 1863 (10 Stat. 612, c. 122; 12 Stat. 765, c. 92), with the addition that it was extended by the act of 1887 to damages, liquidated and unliquidated, "in cases not sounding in tort, and to claims for which redress may be had either in a court of law, equity or admiralty." But it does not follow that the proviso of section 1 of the act of 1887, declaring that "no suit against the government of the United States shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made," should be held to have displaced every part of section 1069 of the Revised Statutes. The act of 1887 only superseded such previous legislation as was inconsistent with its provisions. It is true that, if that act be literally construed, there is some ground for holding that congress intended by the proviso of section 1 to cover the whole subject of the limitation of suits against the government, in whatever court instituted. But we cannot suppose that it was intended to strike down the exceptions made in section 1069 of the Revised Statutes in favor of "the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued." Those exceptions were not expressly abrogated by the act of 1887, and they could be held to be repealed only by implication. But repeals by impli cation are not favored, and when two stat

utes cover in whole or in part the same matter, and are not absolutely irreconcilable, effect should be given, if possible, to both of them. Frost v. Wenie, 157 U. S. 46, 58, 15 Sup. Ct. 532; U. S. v. Healey, 160 U. S. 136, 147, 16 Sup. Ct. 247.

In conformity with this principle, we must adjudge that the above proviso of section 1069 of the Revised Statutes is still in force, because not absolutely inconsistent with the last proviso of the act of 1887. Consequently, that the claim of a person who was beyond the seas at the time the claim accrued is not barred until three years shall have expired after such disability is removed without suit against the government. Although the act of 1887 prescribes the limitation for suits "under this [that] act," without mak-, ing any exception in favor of persons under disability, it should be interpreted as if the proviso in section 1069 of the Revised Statutes were added to section 1 of that act. We could not hold otherwise without deciding, in effect, that the limitation of six years applied to claims accruing to married women and infants during their respective disabilities, as well as to the claims of idiots, lunatics, and insane persons. We are unwilling to hold that congress intended any such result. We may add that it was not contemplated that the limitation upon suits against the government in the district and circuit courts of the United States should be different from that applicable to like suits in the court of claims.

It results that, as the appellee was "beyond the seas" at the time his demand first accrued, and had not returned to this country prior to the institution of this suit, his claim was not barred by limitation. The judgment of the court of claims-which is not disputed upon any ground affecting the merits of the claim in suit-is therefore affirmed.

(166 US 606)

TEXAS & P. RY. CO. v. CODY.
(April 19, 1897.)
No. 246.

REMOVAL OF CAUSES-RAILROADS-NEGLIGENCE AT
STREET CROSSING-CONTRIBUTORY

NEGLIGENCE.

1. That a complaint filed in a state court against a federal corporation states, by mistake or otherwise, that the defendant was created under state laws, does not deprive defendant of the right to a removal to the federal court, upon the ground that it is a federal corporation.

2. The rights and duties of railroad companies and of travelers on highways crossing their tracks are mutual and reciprocal, and no greater degree of care is required of the one than of the other; the care to be exercised by each being such as an ordinarily prudent man would exercise under similar circumstances. 14 C. C. A. 310, 67 Fed. 71, and 30 U. S. App. 183, affirmed.

3. The care which a person who crosses a railroad track in a city is required to use, as well as that which the company is required to use, varies with the surrounding circumstances, and is a question of fact for the jury.

909*

4. If a railroad crossing on a street in a city is not lit up on a dark night, then, to the extent the danger is thereby increased, greater care is required both of the company and of one crossing the track.

5. If the contributory negligence of a person crossing a railroad in a city was the proximate cause of his injuries, he cannot recover, though the company may have been negligent in failing to give a signal of the approach of a train.

In Error to the United States Circuit Court of Appeals for the Fifth Circuit.

This was an action commenced by Henry D. Cody against the Texas & Pacific Railway Company in the district court of Tarrant county, Tex., and removed by defendant to the circuit court of the United States for the Northern district of Texas.

Plaintiff alleged in his petition that on March 4, 1892, he was injured at the crossing of the track of the defendant company over Jennings avenue, in the city of Ft. Worth, Tex., by the carelessness and negligence of the defendant and its agents and servants. Defendant demurred generally, and pleaded the general issue, and, in special pleas, alleged the contributory negligence of plaintiff, and his failure to exercise due care under the circumstances. The issues were submitted to a jury, which found a verdict in favor of plaintiff for the sum of $7,500, on which judgment was rendered. The case was taken to the circuit court of appeals for the Fifth circuit, and the judgment affirmed (30 U. S. App. 183, 14 C. C. A. 310, and 67 Fed. 71), whereupon it was brought to this court by writ of error.

John F. Dillon, W. S. Pierce, and D. D. Duncan, for plaintiff in error. E. B. Kruttschnitt, E. H. Farrar, B. F. Jonas, and Thomas F. West, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The railway company raises a preliminary question of jurisdiction. Plaintiff below described himself in his petition as a resident of Tarrant county, Tex., and alleged the Texas & Pacific Railway Company to be "a private corporation, created and existing under the laws of the state of Texas," and that "the defendant owns and operates a line of railway extending into and running through said Tarrant county, and into and through the city of Ft. Worth, Tarrant county, Tex., and has, for the purpose of conducting and carrying on its business in the management and operation of said line of railway, an office and agency and an agent and representative in the city of Ft. Worth, in said Tarrant county, upon whom citation may be served in this case, the name of the said agent being J. T. Clements."

The defendant company filed its petition for removal in due time, which, in addition to other necessary averments, stated "that, at the commencement of this suit, plaintiff

was then, and still is, a citizen and resident of the state of Texas, and that your peti. tioner was then, and still is, a corporation organized under and by virtue of certain acts of congress of the United States, to wit, an act entitled 'An act to incorporate the Texas and Pacific Railway Company, and to aid in the construction of its road and other purposes,' approved March 3rd, 1871, and an act supplementary thereto, approved March 2, 1872; and that this is a suit arising under the laws of the United States, within the meaning of the second section of an act of March 3, 1875, as amended by the acts of March 3, 1887, and August 13, 1888."

Bond was tendered and approved, and the case removed accordingly. There is no controversy over the fact that the defendant corporation owed its existence to acts of congress, and was entitled to remove the cause as one arising under the laws of the United States, in accordance with the decision of this court in Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113; but the railway company expresses apprehension lest we may hold that jurisdiction was not maintainable within the rule laid down in Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654, and other cases, because plaintiff below did not allege that defendant was a federal corporation, but rather the contrary.

The rule thus referred to, and reiterated in Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, and Railway Co. v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, is that under the acts of March 3, 1887, (chapter 373), and August 13, 1888 (chapter 866), a case not depending on the citizenship of the parties, nor otherwise specially provided for, cannot be removed from a state court into the circuit court of the United States, as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff's statement of his own claim, and that, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings.

By the acts of congress of 1887 and 1888, the jurisdiction of the circuit court on removal by defendant (and defendants alone can remove) is limited to such suits as might have been originally brought in that court; and it is essential, if the jurisdiction is invoked on the ground that the cause of action arises under the constitution, laws, or treaties of the United States, that this should be asserted. If recovery directly depends upon a right claimed under the constitution, laws, or treaties, plaintiff's statement of his case must necessarily disclose the fact; and, if the action is brought in the state court, de fendant can remove it. If, however, plaintiff asserts no such right, and defendant puts his defense on the possession of such right, or its denial to plaintiff, though essential to his recovery, then defendant is remitted to

his writ of error from this court to the state court to test the federal questions thus raised. It is obvious that in the instance of diverse citizenship a different question is presented. Plaintiff may run his own risk in respect of the cause of action on which he proceeds, but he cannot cut off defendant's constitutional right as a citizen of a different state than the plaintiff, to choose a federal forum, by omitting to aver or mistakenly or falsely stating the citizenship of the parties.

And this must be so also as to federal railroad corporations. It was held in the Pacific Railroad Removal Cases that, as all the faculties and capacities possessed by such corporations were derived from their acts of incorporation by congress, all their doings arose out of those laws, and therefore suits by and against them were "suits arising under the laws of the United States." Conceding this, the principle applicable to diverse citizenship may reasonably be applied to them.

*If, in this case, plaintiff had simply described defendant by its name, without more, there would seem to be no question that, as the corporation was judicially known to be a federal corporation, defendant would be entitled to remove the case on proper allegations in its petition; and we think this necessarily follows, where, by some mistake or otherwise, the defendant is erroneously stated to be created under state laws. Here defendant was described as "a private corporation, created and existing under the laws of the state of Texas"; and this was repeated in an amended petition, filed in the circuit court, but no motion to remand was made, nor was the propriety of the removal questioned in any way. Possibly the pleader did not intend to deny the federal character of the company, but, whether so or not, no issue was or could be made as to the source of its corporate existence.

Railway Co. v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, is in harmony with these views. That was an action brought in a court of the state of Oregon to recover for personal injuries alleged to have been caused, in Oregon, by the negligence of the defendant company. A petition for removal was filed and denied, and this denial was approved by the supreme court of Oregon. Defendant was described in the complaint as "a corporation duly organized, existing, and doing business in the state of Oregon." In the removal petition, the defendant was alleged to be a consolidated company, composed of several railway corporations severally organized and created under the laws of the territories of Utah and Wyoming and of the state of Nevada, and under an act of congress approved August 2, 1882, c. 372 (22 Stat. 185), entitled "An act creating the Oregon Short Line Railway Company, a corporation in the territories of Utah, Idaho and Wyoming, and for other purposes." and an act of congress, approved June 20, 1878, c. 352 (20 Stat. 241), 17 S.C.-15

making the Utah & Northern Railway Company a railway corporation in the territories of Utah, Idaho, and Montana.

This court held that, so far as appeared, the defendant company existed and was doing business in the state of Oregon solely underthe authority of that state, whether express or permissive; that the acts of congress referred to did not disclose any intention on the part of congress to confer powers or right to be exercised outside of the territories named therein; and that the supreme court of Oregon committed no error in affirming the action of the trial court denying the pe tition for removal.

We are of opinion that the circuit court properly entertained jurisdiction.

Turning to the case on the merits, we find no reason for disturbing the judgment of the circuit court of appeals. Fourteen errors were assigned in that court to the judgment of the circuit court, which were reduced to six in this court, of which the first was merely that the court of appeals erred in affirming the judgment. The five specific grounds of error assigned are that the circuit court erred in refusing to give each of the following instructions asked for by defendant:

"(1) The defendant asks the court to instruct the jury to return a verdict in this case for the defendant."

"(3) You are instructed that it was the duty of plaintiff, upon approaching the railroad track on Jennings avenue crossing, if he was hurt on said crossing, to stop and look and listen for the approach of the train on the track before attempting to pass over said crossing; and if you believe from the evidence that he failed to stop and look and listen, and that, in consequence of such failure, he was injured, you will find for defendant, even though you should believe from the evidence that the defendant was negligent either in respect to not furnishing a light at said crossing, or in respect to not giving signals of the approach of the train, or was negligent in respect to both of such matters."

"(7) You are instructed that the rights of the railway company and of the public are not equal, but that the right of the company is superior to the right of the traveling public on all parts of its track, even at crossings.'

And that there was error in that portion of the charge relating to the right of a person crossing a railroad track to expect the railroad company to give the signals required by law, and in that relating to the damages. *There was evidence tending to show that on March 4, 1892, on a very dark night, plaintif was walking along Jennings avenue, in Ft. Worth, and towards the track of defendant. which he approached from the south, and which crossed Jefferson avenue at right angles; that, as he approached, he slackened his pace, walked slowly, listened, looked, and saw and heard no train; that there was no light on the crossing, no bell ringing, no blow

613

ing of a whistle, and no light indicating the approach of a train; and that, as he passed over the track, he was struck by a train backing over the crossing, knocked down, and severely injured. The evidence was conflicting on the questions of negligence and contributory negligence, and the circuit court did not err in refusing to peremptorily instruct the jury in defendant's favor.

So far as the refusal of defendant's instructions numbered 3 and 7 is concerned, the charge must be considered as a whole, as, however correct either of them might be, the court was not obliged to use the language of counsel, and, if the jury were otherwise properly advised on these points, that was sufficient.

And this observation is applicable also to the exception to the reference to the giving of signals. That cannot be passed on as an isolated proposition.

After giving certain instructions requested by defendant, the court instructed the jury as follows:

"In this case the jury are instructed that plaintiff sues the defendant for the sum of $10,000, which he says he is entitled to by reason of injuries inflicted on him by defendant company in crushing his leg, and causing its amputation, by serious injuries to his head, and by the bodily and mental pain incident and resulting from said injuries, as also from his diminished capacity to earn a living. He also alleges that he has incurred liabilities for nursing, lodging, attention, and physician, in the sum of $700.

"(2) If you believe from the evidence that plaintiff was injured on defendant's track east of Jennings avenue, then you will find for the defendant.

"(3) If, however, the jury find from the evidence that the plaintiff was injured by the defendant on its track on the crossing of Jennings avenue in Ft. Worth, then you are instructed that the statutes of the state of Texas provide 'that each locomotive engine shall have on it a bell or a steam whistle, and that the bell shall be rung or the whistle blown at the distance of at least eighty rods from the place where the railroad shall cross any road or street, and to be kept ringing or blowing until it shall have crossed such road or street or stopped.'

"(4) The plaintiff, if he was injured on Jennings avenue while attempting to cross defendant's track, was required to use due care himself to avoid danger. The care which a person who crosses a railroad track on a street in a city is required to use is a question of fact for the jury. It varies with the surrounding circumstances. Such person is required to use due care to avoid danger. Should he not do so, and his own negligence is the proximate cause of his injuries, he cannot recover, although the railroad company may not have given the signals which the law requires to indicate the approach of the train.

"(5) Should you believe from the evidence that the plaintiff knew, or by the use of reasonable diligence might have known, of the approach of defendant's train, and thereby have avoided the danger, then you will find for the defendant.

"(6) If, on the other hand, you believe from the evidence that the plaintiff's negligence was not the proximate cause of his injuries, and that plaintiff, without fault on his part, was injured by defendant at Jennings avenue crossing through want of proper care on the part of the defendant, then you will find for plaintiff, in any sum not to exceed $10,000.

"A person attempting to cross a railroad track has the right to expect that the railroad will give the signals required by law, and if he is without fault and such neglect on the part of the road results in his injury, then he can recover.

"(7) The degree of care that was proper care on the part of the plaintiff and defendant must fit and grow out of the time, the occasion, and circumstances. If the night was dark and misty, and no are light or other light lit up the crossing at Jennings avenue,, then to the extent that such facts, if at all,; increased the danger at the crossing of Jenings avenue, then to that extent was greater care and prudence required of both plaintiff and defendant at said crossing.

"(8) The care to be exercised is such as an ordinary prudent man would exercise under similar circumstances. This is the true rule whether applied to the alleged negligence of the railroad company or the alleged contributory negligence of the plaintiff; and what is due care under a given state of facts must be determined by the jury by applying the rule as to what, in their judgment, a man of ordinary prudence would have done under the circumstances shown by the evidence.

"(9) If plaintiff was injured at the crossing of Jennings avenue over defendant's track, and his failure to use the care that a person of ordinary prudence would have used under the circumstances was the proximate cause of his injuries, then he cannot recover, although defendant may have also been guilty of negligence in the matter of failing to ring the bell on the engine, or in some other matter."

We think that this gave the law to the jury with substantial correctness, and fully cov ered all that the company had the right to demand.

The circuit court applied the settled rule as expounded by Mr. Justice Bradley in Improvement Co. v. Stead, 95 U. S. 161. That was the case of a collision of a special railroad train with a wagon. There was evidence tending to show that the plaintiff, who was driving the wagon, looked to the southward, from which direction the next regular train was to come, and did not look northwardly, from which this train came; that his wagon produced much noise as it moved over the frozen ground; that his hearing was

Somewhat impaired; and that he did not stop before attempting to cross the track. The evidence was conflicting as to whether the customary and proper signals were given by those in charge of the locomotive, and as to the rate of speed at which the train was running at the time. The counsel for the railroad company requested the court to give certain specific instructions, to the general effect that the plaintiff should have looked out for the train, and was chargeable with negligence in not having done so; and that it is the duty of those crossing a railroad to listen and look both ways along the railroad before going on it, and to ascertain whether a train is approaching or not. The trial judge refused to adopt the instructions framed by counsel, and charged that both parties were bound to exercise such care as under ordinary circumstances would avoid danger; such care as men of common prudence and intelligence would ordinarily use under like circumstances; that the amount of care required depended upon the risk of danger; and explained the circumstances which bore on that question. He charged, in short, that the obligations, rights, and duties of railroads and travelers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other.

Mr. Justice Bradley said: "If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other, to avoid a collision. Of course, these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first. It is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. * We think the judge was perfectly right, therefore, in holding that the obligations, rights, and duties of railroads and travelers upon intersecting highways*are mutual and reciprocal, and that no greater degree of care is required of the one than of the other; for, conceding that the railway train has the right of precedence in crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of preced

ence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition. Both parties are charged with a mutual duty of keeping a careful lookout for danger; and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. * The mistake of the defendant's counsel consists in seeking to impose upon the wagon too exclusively the duty of avoiding collision, and to relieve the train too entirely from responsibility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highways as the rail way companies have to run trains on th railroads."

The case was reaffirmed, quoted from, an followed in Railroad Co. v. Griffith, 159 C S. 603, 16 Sup. Ct. 105.

Tested by these principles, the circuit cour did not err in the matters complained of.

Nor was there error in respect of the ques tion of damages. What the trial judge sai on that subject, taken together, was not in correct; and, if the railway company had desired particular instructions in reference to the measure of damages, it should have requested them, which it did not do. Railway Co. v. Volk, 151 U. S. 73, 14 Sup. Ct. 239. Judgment affirmed.

(166 U. S. 61"

TEXAS & P. RY. CO. v. BARRETT.
(April 19, 1897.)
No. 247.

REMOVAL OF CAUSES-MASTER AND SERVANT-DE
FECTIVE MACHINERY.

1. A federal corporation sued in a state court may have the cause removed to a federal court upon the ground that it was created by act of congress, though that fact does not appear from the complaint.

2. A railroad company is not required to adopt extraordinary tests for discovering de fects in machinery, which are not approved, practicable, and customary; but it fulfills it duty if it adopts such tests as are ordinarily in use by prudently conducted roads in like business, and surrounded by like circumstan

ces.

3. A railroad company is bound to use ordi. nary care to furnish safe machinery and appli ances for the use of its employés, and to keep them in repair, and the neglect of its agents in that regard is its neglect.

4. Where plaintiff, a foreman in charge of a switch engine in a railroad company's yard, was injured by the explosion of another engine, with which he did not have, and was not required to have, anything to do, and which had been placed by the foreman of the roundhouse on a track in the yard with steam up, to take out a train, the company was liable if the boiler exploded by reason of defects of which its servants, whose duty it was to repair such ma