Where the case was tried to a jury and there was a verdict for
plaintiff, disputed questions of fact must be considered by the
appellate court as determined against defendant.
On appeal from a judgment of the circuit court of appeals
affirming a judgment of the trial court based on a verdict, this
Court is confined to considering questions of law arising on the
rulings of the court.
A defendant removing the case from the state court, and not
reserving any exception to the jurisdiction of the state court,
cannot, after pleading in, and submitting to the jurisdiction of,
the federal court raise the question of the original jurisdiction
of the state court.
A general contention that the trial court should have directed a
verdict for defendant involves the whole case, and facts and law
may, as in this case, be so intermingled as to make the latter
dependent upon the former.
A carrier which has accepted a passenger to a definite point
does not discharge its duty by delivering him in an unsuitable
place without protection from the inclemency of the weather.
There having been conflicting testimony whether plaintiff's
Page 239 U. S. 331
was or was not necessarily compelled through the negligence of
the defendant carrier to submit to condition resulting in his
sickness and death, and the court having charged that, if the jury
believed the defendant's testimony in that respect, plaintiff could
not recover at all, and, if plaintiff's evidence was true, it
appears that defendant did not exercise even ordinary care, a
verdict for plaintiff should not be set aside because of statements
in the charge in regard to different degrees of care owed by the
defendant under varying circumstances to its passengers.
218 F. 990.
The facts, which involve the validity of a judgment of the
circuit court of appeals in an action for injuries sustained by a
passenger against a carrier, are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action for personal injuries, brought by J. T. Bigger against
plaintiff in error and the International & Great Northern
Railway Company and the St. Louis, Iron Mountain, & Southern
Railway Company in the state district court of Bexar County,
The case made by Bigger's pleading was this:
Bigger was a passenger upon the Texas & Pacific Railway
Company's train on a ticket from San Antonio, Texas, to Owensboro,
Kentucky, and return, having purchased the ticket from the
International & Great Northern Railway Company at San Antonio,
Texas. A partnership was alleged between the companies.
Bigger was returning from Owensboro to San Antonio, and was
compelled and required to leave the train at
Page 239 U. S. 332
Longview during a very severe downpour of rain at a place where
there was no protection. His clothes became thoroughly drenched
with rain, and he was required to ride in them so drenched until he
reached San Antonio at about 10 o'clock at night. As a result of
such exposure and wetting, he became seriously ill.
At the time, the Texas & Pacific reached the state at
Longview, there was in the train a car destined to San Antonio, on
the line of the International & Great Northern Railway, of
which the employees of the Texas & Pacific knew, but they
neglect to inform Bigger of the fact and give him an opportunity to
transfer to such car.
It was charged in his complaint that such facts constituted
negligence on the part of the company and its employees.
In accordance with a petition by the Texas & Pacific Company
the case was removed to the United States District Court for the
Western District of Texas. There, an amended petition or complaint
was filed suggesting Bigger's death, and his wife and six children
were made parties plaintiff.
The St. Louis, Iron Mountain, & Southern Railway Company
filed a separate demurrer and answer.
The International & Great Northern Railway Company and the
Texas & Pacific Railway Company joined in a general demurrer
and in an answer to the merits. Subsequently, both of the latter
companies were given leave to amend, and availed themselves of it.
The answer of the Texas & Pacific Railway Company contained a
general demurrer, a general denial of the allegations, and set up
special matters in defense. It contained no plea or exception to
the jurisdiction in the court, state or federal.
The case was continued and set for trial upon motion of
defendants, and the Texas & Pacific Railway Company then filed
a second amended answer, in which it set up that it was
incorporated under an act of Congress, had
Page 239 U. S. 333
its domicil in Dallas, Texas, that no part of its road was in
Bexar County, and therefore the action was improperly brought in
the latter county, and the court was without jurisdiction to try
it, it being "one arising under and involving damages for personal
injury." Insufficiency of the petition in law was also alleged, and
that the petition showed on its face that the company was a common
carrier without any elements of partnership existing between it and
the other defendants. The answer also contained general denials of
the allegations of the petition, and averred besides that Bigger
had ample opportunity to transfer from one coach to another, and
that, had he used ordinary care, he would have got into the proper
coach either when he first boarded the train or at some time during
passage. That the railway company complied with its duty when it
safely transported Bigger to Longview, and at that station its
relation to him, so far as he was a passenger, terminated, as he
was entitled to ride to such point and no farther.
That it stopped its train at the usual place, and the station
building and shelter from rain was in close proximity to such
point. That other passengers alighted and proceeded to such station
building, that there was no reason why Bigger should not have done
so, and that his exposure was due to his own negligence.
That his ill health and subsequent death were not caused by, nor
were they the result of, any negligence of the company, but that he
was in an extremely poor state of health, having been the victim
for a long time of a tubercular infection which had so far
progressed that he had been compelled to give up his work and
return to San Antonio, with hope practically abandoned, and that
his death was the proximate and direct result of such
Upon the issues thus joined, the case was tried to a jury. The
court directed a verdict for all of the companies
Page 239 U. S. 334
except the Texas & Pacific, against which company a verdict
was returned in the aggregate amount of $15,250, the amounts
awarded to the wife and children being respectively specified.
Judgment was entered accordingly and affirmed by the circuit court
A motion is made to dismiss or, alternatively, to affirm.
The motion to dismiss is overruled. The railway company is a
federal corporation, and the questions raised are not frivolous.
therefore to the merits.
The questions of fact must be considered as determined against
the company by the verdict of the jury -- that is, that Bigger was
required to get off the train at Longview in a drenching rain, that
the accommodations there were insufficient for the protection of
passengers, that he could have been transferred to a coach attached
to the train, but was not, nor was he told of it, and that the
exposure resulted in his death. And further, the verdict is
conclusive as to the condition of his health and as to the
expectancy from his life.
Our consideration therefore must be confined to the questions of
law arising on giving or refusing instructions, or on some other
ruling of the court. There is such other ruling. The company, in
its second amended answer in the district court, excepted to
plaintiff's petition on the ground that it showed on its face that
the suit was improperly brought in Bexar County. The exception was
overruled, and this is assigned as error. It was not error. The
petition for removal contained no reservation of a question of the
jurisdiction of the state court, and after the case reached the
district court, there were pleadings to the
Page 239 U. S. 335
merits and other action submitting to the jurisdiction. Tex.
& Pac. Ry. v. Hill, 237 U. S. 208
There is the general contention that a verdict should have been
directed for the company. The contention involves the whole case,
and facts and law are so intermingled as to make the latter
inseparably dependent upon the former. For instance, it is urged
that Bigger did not exercise care when he boarded the train at
Little Rock. He could have known, it is said, that there was an
International & Great Northern coach attached to the train, and
that he should have heard the announcement to passengers to
transfer to that coach, and "should at some time during the route
have looked and listened." The announcement is disputed, and
whether he should have known of the International & Great
Northern coach was for the jury to decide.
There is testimony to the effect that Bigger was required to get
out at Longview during a rain of such severity as to amount to a
cloud-burst, and which had covered the ground with water. Against
this, it is said that where he descended from the train was a
suitable place to walk, and that there were sheds and depots and
other buildings near at hand to protect him from the rain. And it
is urged that he should not have continued his journey in wet
clothes; that he could have changed clothes at a hotel in Longview
or sought the accommodations of a Pullman sleeper. Finally it is
said that the Texas & Pacific owed him no further duty when he
left its train. The latter contention can be immediately rejected.
The company accepted him as a passenger for a destination beyond
Longview, and its duty was not discharged by delivering him to a
storm, protected from its inclemency only by the shelter afforded
by a "switch shanty," so-called by an employee of the road. We may
remark that to that shanty a lady passenger was also conducted by
the porter of the train, he apparently not having knowledge of the
Page 239 U. S. 336
of other buildings which the company alleged were available to
Bigger. The lady testified that the water was "three inches deep on
the ground" and came to her ankles, and that "it was raining just
like a cloud-burst." Nor was it a condition suddenly occurring. It
rained before the train reached Longview, "and the tracks looked,"
the witness said, "like they were covered with water." And, we may
say, as indicating the severity of the storm, the train was
compelled to return to Longview on account of washouts. Such
conditions of discomfort and peril to health she, Bigger, and, it
appears, two other passengers, were required to pass to and endure
in order to take a car which was attached to the train and which
could have been reached by merely passing through other cars. And
these were the conditions a jury had the right to believe existed,
although there was contradiction of them. The other contentions
involved considerations for the judgment of the jury.
There is an objection to the charge of the court that it gave
too much emphasis to the duty of the company, and not enough to the
duty of Bigger as a passenger. The objection involves the charge as
a whole, and, as it would be inconvenient to quote it, we simply
say that the objection is not justified. The court expressed the
elements of liability of the company, and it expressed as well the
conditions of recovery on the part of plaintiffs, and it is
hypercritical to say that the emphasis was more on one than on the
other, as presently will be shown.
The most important contention of the company is based on the
charge of the court as to the degree of care required of the
company. The court said that, if Bigger's "illness and subsequent
death did not result directly from the negligence of the defendant,
they [plaintiffs] would not be entitled to recover." And, it was
"What, then, is negligence? It is the failure to do what a
reasonable person would ordinarily have done under the
Page 239 U. S. 337
the situation, or the doing what such person, under the existing
circumstances, would not have done. The essence of the fault may
lie in omission or in commission. The duty is dictated and measured
by the exigencies of the occasion."
The court recited the evidence and the contentions of the
parties, and said that it was the duty of the company "to provide
adequate and safe accommodations for passengers where they could
alight to change cars and where they could be protected." And,
further, that if this was done, the company had fulfilled its duty,
and no recovery could be had against it. If it had not done so,
"if the employees of the defendant required the deceased to get
off the train in a severe rain, and his illness resulted therefrom
without any fault or negligence on his part, the plaintiffs would
be entitled to recover."
And it was said:
"In this connection, you are further instructed that the
deceased was required to look out for his own comfort and safety,
and if he was in any respect guilty of negligence contributing to
his illness and death, then no recovery can be had by the
plaintiffs in this proceeding."
The court, at the request of the company, further instructed the
jury that if Bigger, at the time he entered the car, was sick with
lung trouble, and knew there were chances of injury by exposure,
and he neglected to use ordinary care and prudence to protect
himself against any contingency which might arise during the
journey, and if he changed cars when, by the use of ordinary care,
he could have avoided doing so, or if there was a safer way for him
to have gone which he might have ascertained by ordinary care, the
company would not be responsible for the injury which resulted, if
any resulted. And further that "all these facts and circumstances
in connection with his [Bigger's] condition" should be considered
"whether or not he used that ordinary care and prudence which an
ordinarily prudent person would have exercised
Page 239 U. S. 338
under similar circumstances."
To these instructions there was no objection except to that part
which extended the duty of the company to the protection of
passengers after they had alighted from the train.
But the court instructed the jury at the request of plaintiffs,
that the railway company
"owed its passengers the duty to exercise that high degree of
care that would be exercised by every prudent person under the same
or similar circumstances, and a failure to exercise such degree of
care would be negligence."
This instruction is attacked as error only because it imposed a
high degree of care on the company after Bigger had left the train
"and was therefore in a position to use care in taking care of
himself." The ground of the objection seems to be that the duty of
the company ceased upon the arrival of its train at Longview. To
this, as we have already said, we cannot assent. The same care was
necessary to be observed for Bigger's protection at that place,
under the circumstances presented by the record, as was necessary
to be observed in his transportation, and the charge of the court
correctly expressed it. Penn. Co. v. Roy, 102 U.
; Indianapolis &c. R. Co. v. Horst,
93 U. S. 291
But even if the railway company could plead a lesser degree of
care than that declared to be its duty in the charge of the court,
it is very disputable if error was committed to the prejudice of
the company. Between the plaintiffs' ground of action and the
company's ground of defense there was a clear line of distinction.
The testimony of plaintiffs was to the effect that Bigger was
compelled to descend from the train in the midst of a severe storm
to the inadequate protection of a mere shanty to await the car for
San Antonio, such car being attached to the train he was on and to
which he could have gone by simply passing through other cars had
he been told that it was part of the train. The company asserts
that he was told, and that he disregarded the information. If the
Page 239 U. S. 339
was true, the company was not liable, and the court so
instructed the jury. If the testimony of plaintiffs was true, the
company did not observe even ordinary care, and which was the fact,
it was for the jury to decide, and their judgment in deciding could
not have been embarrassed by a consideration of degrees of
negligence or care.
The other contentions of the company we think do not require
special comment. They are directed to the proposition, many times
repeated, that the company owed no duty to Bigger, or else had
observed it, and that Bigger had not used care either in avoiding
exposure or in preventing an injurious effect from it. They attack
the sufficiency of the evidence, and assert, in effect, that its
conflicts should be resolved against plaintiffs. The propositions
of law involved are those which we have considered.
THE CHIEF JUSTICE, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE
McREYNOLDS dissent, because they are of opinion that some of the
instructions complained of laid upon the carrier a heavier duty
than the law recognizes.
* This case was pending in this Court before and at the time of
the passage of the Act of January 28, 1915, 38 Stat. 804, c. 22, §§
5 and 6, which takes away from courts of the United States
jurisdiction in suits by or against any railroad company on the
ground that such company was incorporated under an act of Congress.
The act excepts actions or suits pending at the time of the passage
of the act.