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. Co. 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 reexamine 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 especially 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
employee 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 employee can only recover if injured while employed by the
carrier is involved which is 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 employee'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
circumstances
Page 225 U. S. 478
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 N.C. 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.
Page 225 U. S. 481
MR. JUSTICE LURTON delivered the opinion of the Court.
This was an action by an employee 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
Page 225 U. S. 482
U.S. 180,
158 U. S. 183;
Louisville & Nashville R. Co. v. Smith, 204 U.
S. 551.
The federal question relied upon to sustain the writ of error to
this Court concerns the construction and application of the
Employers' liability Act of April 22, 1908, 35 Stat. 65, c. 149.
Neither the complaint nor the answer makes any direct reference to
that act; but the complaint did allege that the railroad company
was operating a line of railroad between Portsmouth, Virginia, and
Monroe, North Carolina, and that the plaintiff, while in its
employment as baggage master and flagman upon a passenger train
running between said points, was negligently injured by a head-on
collision. This states a ground of action under that act, and it
was so assumed by the trial court, as appears from that part of the
charge relating to the effect of contributory negligence, as well
as from some of the questions made in the supreme court of the
state.
That the collision was due to negligence was conceded. The only
defense which seems to have been made was that, under the rules of
the company, the plaintiff was required to remain in the baggage
car, but that he was hurt while in the express car, a place where
it is claimed his duty did not call him, and therefore he was not
injured while employed in the service of the company or engaged in
any duty his employment devolved upon him.
The case was submitted upon these issues, and the finding of the
jury upon each was as follows:
"1. Was the plaintiff injured by the negligence of the
defendant? Answer. Yes."
"2. Was the plaintiff's injury caused by his contributory
negligence? Answer. No."
"3. What damage is the plaintiff entitled to recover? Answer.
$30,000."
Four requests for special charges, which bear upon this defense
and which were denied, have been assigned here
Page 225 U. S. 483
as error reviewable by this Court. They were as follows:
"1. That where an employee undertakes to do something not his
duty to do, the master is not negligent, and if the jury shall find
by the greater weight of the evidence that the plaintiff was acting
outside of the scope of his employment when he was injured, they
will find the first issue 'No.'"
"3. That, as the plaintiff admits that he was in the express car
at the time of his injuries, and as the rules of the receivers of
the defendant (of which he admits he had that notice) required him
to remain in the baggage car when not engaged in flagging the
train, the burden is upon the plaintiff to satisfy the jury by the
greater weight of evidence that, when he went into said express
car, and was injured, he was engaged in the discharge of the duties
of his employment, and if he has failed to so satisfy the jury, you
will answer the first issue 'No.'"
"4. That unless the jury shall find by the greater weight of the
evidence that, when the plaintiff went into the express car, he
understood that he was going there to discharge some of the duties
of his employment, the defendant's negligence in causing the
derailment of said car would not be the proximate cause of the
plaintiff's injuries, and the jury will answer the first issue
'No.'"
"6. The admitted rules of the receivers of the defendant
required the plaintiff to remain in the baggage car when not
engaged in flagging the train, and the plaintiff had no right to go
into the express car in violation of the provisions of the said
rules, unless the conductor ordered him to do so for the purpose of
discharging some one of the duties of his employment, and unless
the jury shall find by the greater weight of the evidence that,
when the conductor told the plaintiff to go with him into said car,
he thereby understood that the conductor wished him to
Page 225 U. S. 484
go to discharge his duties as an employee of the defendant, the
jury will answer the first issue 'No.'"
The plaintiff in error also excepted to a part of the court's
charge which was in these words:
"If you find from the evidence that the plaintiff had no right
to go into the express car; that he was not where he should have
been, and you further find that he would not have been injured but
for his going into the express car,
and that his going into the
express car was such an act on his part that a reasonably prudent
man ordinarily would not have done under the circumstances of the
situation, then he would be guilty of contributory negligence,
and it would be your duty to answer the second issue 'Yes.' If you
do not so find, it would be your duty to answer the second issue
'No.'"
Not one of the requests asks any definite construction of any
part of the Employers' Liability Act, or, indeed, contains any
reference whatever to the act.
They are based alone upon the admitted facts that, at the time
of the collision, the plaintiff was in the express car, and that
there was a rule of the company requiring him to be in the baggage
car. They assume that, in being in the express car, he was where he
had no right to be, and that, if injured while there, the jury must
acquit the company of negligence, and upon that issue find for the
railroad company. The requests take no account of the legal effect
of other evidence in the case. Thus, there was evidence tending to
show that the express car was used for through baggage, and that
baggage was often received from the platform into the express car,
and carried to the adjacent baggage car. There was also evidence
tending to show that the rule referred to was not enforced, and
that the baggage master and express messenger frequently exchanged
work, and that this was known to the conductor, who made no
objection. There was also evidence tending to show that both the
conductor and the
Page 225 U. S. 485
plaintiff had gone to the express car either upon the call of
the messenger or for social purpose, the plaintiff in either event
going by direction or on invitation of his immediate superior, the
conductor of the train. Any question as to whether his being in the
express car at the moment of the collision either contributed to
the collision of to the injury sustained, as well as any
consideration of the question whether he was in any way negligent
in being there, as being in a place of greater danger than if in
the baggage car, was ignored.
The trial court was under no obligation to give special charges
based upon but a part of the evidence -- charges which, in effect,
took from the jury every question save the single fact that
plaintiff was, when hurt, in the express car, and that there was a
rule which required him to remain in the baggage car.
But the plaintiff in error now urges that it was entitled to
have construed that provision of the Employers' Liability Act which
requires that a plaintiff, to recover under it, must have been
injured "while he was employed by such carrier in such commerce,"
and that the requests denied were applicable to the evidence which
tended to show that he had ceased to be such an employee, because
he was not, at the moment of the injury, engaged in the conduct of
interstate commerce, or at the place where his duty required him to
be. That the plaintiff was in the general employment of an
interstate railroad, and at the time was the baggage master of one
of its trains running from one state to another was shown by all
the evidence. If his employment had been terminated, it was solely
because he had momentarily gone into the adjacent express car. If
he was injured while employed about something which it was not his
duty to do, it was solely due to the fact that he had gone into
that car either under direction or with the consent of his
conductor.
This case does not come here from a federal court, and
Page 225 U. S. 486
we are therefore not a court of general review. It comes under §
709, Rev.Stat., and the power to review a judgment of a state court
is limited and defined by that provision. The sole ground upon
which our jurisdiction is invoked is found in the third clause of
the section, which provides that,
"where any title, right, privilege, or immunity is claimed under
the Constitution, or any treaty or statute . . . and the decision
is against the title, right, privilege, or immunity specially set
up or claimed, . . . may be reexamined and reversed. . . ."
This action was brought under an act of Congress. If the act has
been erroneously construed and exceptions saved, or if a particular
construction to which the party asking was entitled was denied, a
right has been denied under the statute, and the question may be
reviewed by this Court. In
St. Louis, I. M. & S. Ry. v.
Taylor, 210 U. S. 281,
210 U. S. 293,
it was said:
"Where a party to litigation in a state court insists, by way of
objection to or requests for instructions, upon a construction of a
statute of the United States which will lead, or, on possible
findings of fact from the evidence may lead, to a judgment in his
favor, and his claim in this respect, being duly set up, is denied
by the highest court of the state, then the question thus raised
may be reviewed in this Court. The plain reason is that, in all
such cases, he has claimed in the state court a right or immunity
under a law of the United States, and it has been denied to him.
Jurisdiction so clearly warranted by the Constitution and so
explicitly conferred by the Act of Congress needs no justification.
But it may not be out of place to say that in no other manner can a
uniform construction of the statute laws of the United States be
secured so that they shall have the same meaning and effect in all
the states of the Union."
That case came from a state court from a judgment against the
plaintiff in error in an action under the Safety
Page 225 U. S. 487
Appliance Act. But, in that case, the federal question was
specially set up and definite rulings had upon definite questions
requiring a construction of the act. Thus, the court concludes the
paragraph above set out by saying:
"The defendant, now plaintiff in error, objected to an erroneous
construction of the safety appliance act, which warranted on the
evidence a judgment against it, and insisted upon a correct
construction of the act, which warranted on the evidence a judgment
in its favor. The denials of its claims were decisions of federal
questions reviewable here."
It was the obvious duty of counsel, if they wished any
particular construction of the act, to put the request in such
definite terms as that the attention of the court might be directed
to the point, and the record here should show that the right now
claimed was the right "specially set up" and denied by the
court.
"It must appear on the face of the record that it was in fact
raised; that the judicial mind of the court was exercised upon it,
and then a decision against the right claimed under it."
Or, at all events, it must appear from the record that there was
necessarily present a definite issue as to the correct construction
of the act, so directly involved that the court could not have
given the judgment it did without deciding the question against the
contention of the plaintiff in error.
Maxwell v.
Newbold, 18 How. 515;
Sayward v. Denny,
158 U. S. 180;
Gillis v. Stinchfield, 159 U. S. 658;
Speed v. McCarthy, 181 U. S. 269,
181 U. S.
275-276;
Gaar, Scott Co. v. Shannon,
223 U. S. 468. In
Appleby v. Buffalo, 221 U. S. 524,
221 U. S. 529,
this Court said:
"This Court has had frequent occasion to say that its right to
review the judgment of the highest court of a state is specifically
limited by the provisions of § 709 of the Revised Statutes of the
United States. This right of review in cases such as the one at bar
depends upon an
Page 225 U. S. 488
alleged denial of some right, privilege, or immunity specially
set up and claimed under the Constitution or authority of the
United States, which it is alleged has been denied by the judgment
of the state court. In such cases, it is thoroughly well settled
that the record of the state court must disclose that the right so
set up and claimed was expressly denied, or that such was the
necessary effect, in law, of the judgment.
Sayward v.
Denny, 158 U. S. 180,
158 U. S.
183;
Harding v. Illinois, 196 U. S.
78;
Waters-Pierce Oil Co. v. Texas,
212 U. S.
86,
212 U. S. 97."
Passing now to the error assigned to a paragraph in the general
charge, the part objected to and assigned as error is the clause
italicized. It was a part of the general charge in respect of
contributory negligence. It was limited to the separate issue
submitted to the jury as to such negligence.
It is not easy to see why the mere going into the express car
would be negligent unless the conditions were such as to be an act
of imprudence which a reasonable man would not have done. But this
we pass by as pertaining to the merits. In any event, the exception
did not raise any specific question as to the proper construction
of the act under which this action had been brought.
The jury was in explicit terms told that if they found the
plaintiff guilty of contributory negligence, it would not bar a
recovery, but that the damages assessed must be diminished in
proportion to the amount of negligence attributable to the
plaintiff. This was in pursuance of the statute. The jury specially
found that the plaintiff had not been guilty of contributory
negligence.
In conclusion, we are of opinion that neither the instructions
denied nor that objected to are sufficient to raise any federal
question which this Court may review.
The motion to dismiss the writ for want of jurisdiction is
therefore granted.