4. Railroads 327 (2)-Pedestrian held guilty of contributory negligence at crossing. Where train was in plain sight, and pedes

ing tracks of the defendant in the afternoon of the 19th of November, 1923, at a

main track but failed to give further heed to it and deliberately crossed main track and went on switching track, he was guilty of contributory negligence.

Crawford & Moses' Dig. Ark. § 8575, embodying law of comparative negligence, does not provide that the question of comparative negligence must be determined by jury, or take from court right to decide such question as matter of law, where no other inference could be drawn from evidence by reasonable men. 6. Negligence 101-Court not in error in deciding as matter of law pedestrian's negilgence at crossing was not of less degree than railroad's negligence.

In pedestrian's action for personal injuries at railroad crossing, held, that trial court committed no error in deciding as matter of law that negligence of plaintiff in crossing track without looking for approaching train was not of less degree than negligence, if any, of defendant railroad company in failing to give warnings.

Plaintiff alleged in his complaint that the defendant negligently failed to ring the bell or blow the whistle as the engine approached the crossing; negligently failed to keep a lookout for persons upon the track as required by the state statutes. The answer denied negligence on the part of the defendant, and alleged contributory negligence on the part of the plaintiff.

The public street ran north and south. The railroad ran east and west. Two tracks crossed the street-the main track and the passing or switching track. The main track was about 6 or 7 feet south of the passing track. Plaintiff was walking north on the public street. The train, consisting of an engine and three cars, was going west. Plaintiff, a man over 70 years of age, was familiar with the crossing. He passed over it four times a day. There was nothing to obstruct his view in the direction from which the

In action for personal injuries sustained at railroad crossing, held, that doctrine of last clear chance as embodied in Crawford & Moses'

Dig. Ark. § 8568, was inapplicable where it was shown that there was no negligence of defendant supervening subsequently to that of plaintiff, as where his negligence is continuous and operative down to time of injury, and plaintiff's

negligence or position of danger was not discovered by defendant in time to avoid injury.

In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.

Action by J. P. Allnutt, by his next friend, Mrs. Mary P. Allnutt, against the Missouri Pacific Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Edward Gordon, of Morrillton, Ark., for plaintiff in error.

Vincent M. Miles, of Fort Smith, Ark. (Thomas B. Pryor, of Fort Smith, Ark., on the brief), for defendant in error.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

BOOTH, Circuit Judge. This is a personal injury case in which the court below directed a verdict for the defendant at the close of the evidence.

Plaintiff in error, plaintiff below, while attempting to walk across one of the switch

quent at this point on the company's tracks. Plaintiff could hear well with his right ear, which was the one toward the train. His eyesight was good.

There was a conflict in the testimony on the question whether the bell was rung as the engine approached the crossing. The evidence is undisputed, however, that plaintiff

saw the train when he was some 50 feet away from the railroad track; he testified, however, that he thought it was standing still. His testimony as to how the accident happened is as follows: "I saw the train

when I first got to the crossing, and it was standing still down about the switch, and I paid no attention to it, and Mr. Morrell walked with me, and I had crossed the main track, I think, but wouldn't be sure about that, but at any rate he saw a negro coming down on the other side, going south, and he says, "There is a negro I want to see,' and he just walked off across the street over on the other crossing, or started that way, and I went on across the main track. I didn't hear anything, and I thought the train was standing still down there, and I was turned around that way looking toward Morrell, to see if he was going to see his negro, and about that time the train hit me, and that is the last I can tell you, and I don't remember anything more." Plaintiff was asked the question, "From the time you noticed this train, from the time you were back 50

feet, back from the track, did you ever look back in the direction from which this train was coming? A. No, I don't think I did." The fireman testified that he was on the lookout; that when the engine was 30 to 50 feet from the crossing, he saw the plaintiff going north about the center of the mainline track; that when he saw that plaintiff continued toward the switching track, he hollered to him; that as soon as he hollered at the plaintiff, the engineer applied the emergency brake; that the bell was ringing at the time; that the engine was going about 7 or 8 miles an hour. The engineer corroborated the testimony of the fireman, and further testified that the train was running about 8 miles per hour and stopped in about 25 feet; that he applied the emergency brake and stopped the train as soon as he could after the fireman shouted. There was other testimony that plaintiff went upon the side track without apparently paying any attention to the approaching engine.

[1, 2] The law applicable to this state of facts is well settled. It was the duty of defendant company to exercise ordinary care to sound the usual warnings as the train approached the crossing. Inasmuch as the testimony was conflicting whether this duty was fulfilled, the question was one for the jury.

[3, 4] It was the duty of plaintiff to use ordinary care for his own safety as he approached the crossing. The train was in plain sight. He saw it when he was some distance from the main track. He failed to give further heed to it, but deliberately crossed the main track and went upon the switching track. He was clearly guilty of contributory negligence. Elliott v. C., M. & St. P. Ry. Co., 150 U: S. 245, 14 S. Ct. 85, 37 L. Ed. 1068; C. G. W. Ry. Co. v. Smith, 141 F. 930, 73 C. C. A. 164 (C. C. A. 8); Denver City Tramway Co. v. Cobb, 164 F. 41, 90 C. C. A. 459 (C. C. A. 8); Payne v. Blevins (C. C. A.) 280 F. 310.

[5, 6] Plaintiff, however, invokes the doctrine of comparative negligence. Section 8575, Crawford & Moses' Digest of the Statutes of Arkansas, reads as follows: "In all suits against railroads, for personal injury or death, caused by the running of trains in this state, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished

in proportion to such contributory negli gence."

In Bradley v. Missouri Pacific R. R. Co., 288 F. 484, this court, in passing upon the statute in question said: "The statute does not provide that this question of comparative negligence must be determined by a jury, and does not attempt to take from the court the right, where no other inference can be drawn from the evidence by reasonable men, to decide as a question of law that the evidence of negligence on the part of decedent equaled or exceeded that of the railroad company." The Arkansas decisions are not to the contrary. St. Louis-San Francisco Ry. Co. v. Horn, 269 S. W. 576.

We think the trial court committed no error in deciding as a matter of law that the negligence of plaintiff was not of less degree than the negligence, if any, of the defendant.

[7] The "last clear chance" doctrine is also relied upon by plaintiff. In Arkansas this doctrine is embodied in a statute. Section 8568 of Crawford & Moses' Digest. It reads as follows: "It shall be the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed."

This doctrine is not applicable to the facts in the case at bar.

In the case of Denver City Tramway Co. v. Cobb, supra, which involved a similar state of facts, this court said: "It is also urged that the case is within that exception to the general rule making contributory negligence a defense, which is known as the last clear chance doctrine.' But there are two reasons why that is not so: First. The exception does not apply where there is no negligence of the defendant supervening subsequently to that of the plaintiff, as where

citizen of the Philippine Islands owes allegiance to the United States and is not an alien, but nevertheless, in our opinion, the further contention of the appellant cannot be sustained. Section 1 of the Act of September 13, 1888 (25 Stat. 476), provides that from and after the date of the exchange of the pending treaty between the governments of the United States and China it shall be unlawful for any Chinese person, whether a subject of China or any other power, to enter the United States, except as thereinafter provided. By section 5 of the Act of April 27, 1904 (33 Stat. 428 [Comp. St. § 4337]), all laws in force on April 29, 1902, prohibiting the coming of Chinese persons or persons of Chinese descent into the United States, and the residence of such persons therein, were re-enacted, extended, and continued in force without modification, limitation, or condition, and it was further expressly provided that all such laws should apply to the island territory under the jurisdiction of the United States, and the immigration of Chinese laborers, not citizens of the United States, from such island territory to the mainland territory, was prohibited, whether in said island territory at the time of cession or not. This act was continued in effect by section 38 of the Immigration Act of February 5, 1917 (39 Stat. 897 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894u]), and likewise by section 25 of the Immigration Act of May 26, 1924 (43 Stat. 166 [Comp. St. Supp. 1925, § 428934]). Under the express provisions of the act of 1904, therefore, Chinese laborers who are not citizens of the United States are not entitled to admission to the mainland of the United States from the island territory. The appellant is not a citizen of the United States, and it only remains to consider whether he is a Chinese laborer and belongs to the excluded class.

[2] The appellant contends that he is the natural son of a Filipino mother and a Chinese father born in the Philippine Islands, and that, being a natural or illegitimate son, he took the status of his mother. Alberty v. United States, 162 U. S. 499, 16

S. Ct. 864, 40 L. Ed. 1051. If we concede the premise, the conclusion might follow; but the only testimony offered in support of the claim that he is a natural or illegitimate son was the following: He was asked how it was that he had no Chinese name, if his father was a Chinese, and he answered: "Because my father and mother did not go through the regular marriage." Assuming that the lack of marriage, as well as mar

riage itself, may be proved by reputation or hearsay, the testimony so given was wholly insufficient to overcome the presumption in favor of legitimacy. The father of the appellant was a Chinese person, and under the established rule of the common law the appellant took and has the same status. If this be true, the appellant, not being a citizen of the United States, belongs to the excluded class, and is not entitled to admission to the mainland of the United States from the island territory.

The order of the court below is therefore affirmed.

JUTILA v. FRYE.

(Circuit Court of Appeals, Ninth Circuit. November 2, 1925.)

No. 4641.

1. Parties 76(1)—Objection to defect of parties waived, where question not raised by answer or demurrer.

In a death action, where complaint merely alleged plaintiff was husband of deceased, without alleging that he was sole heir, held, that question of defect of parties, in view of Comp. defendant did not raise objection thereto by moSt. Idaho 1919, § 6644, was waived, where tion, demurrer, or answer, but made motion for directed verdict and new trial, after it appeared at trial that deceased had two daugh

ters, who were her other heirs.

2 Death 99 (4) $1,500 damages not excessive for wife's death.

$1,500 damages for death of wife is not excessive.

sulting from the death of his wife through the wrongful act and neglect of the defendant. The jury returned a verdict in the sum of $1,500 in his favor, and the judgment has been brought here for review.

least 100 yards, in contravention of a statute of the state. Proof that death resulted from the injuries was equally clear and convincing.

The complaint did not allege that the husband was the sole heir of the wife, nor did it contain anything on that subject, beyond the simple allegation that he was the husband. No objection was interposed to the complaint on that ground by motion, demurrer, or answer. During the progress of the trial it appeared that the deceased was survived by two daughters, who were likewise heirs, and because thereof the plaintiff in error moved for a directed verdict, and also petitioned for a new trial. It is the settled rule in Idaho, as in most jurisdictions, that an objection for defect of parties is waived, unless raised by demurrer or answer. Bonham Nat. Bank v. Grimes Pass. P. M. Co., 18 Idaho, 629, 111 P. 1078; Anthes v. Anthes, 21 Idaho, 305, 312, 121 P. 553; Trask v. Boise King Placers Co., 26 Idaho, 290, 299, 142 P. 1073.

The deceased was injured in a collision between an automobile driven by the plaintiff in error and an automobile in which she was riding as a passenger, and died about a month later, as a result of the injuries thus sustained. The sufficiency of the testimony to prove negligence on the part of the plaintiff in error, or to prove that the injuries were the proximate cause of death, is challenged by two of the assignments of error; but the testimony was so clear and overwhelming on these points that the assignments are entirely without merit. The testimony was ample to show that at the time of and immediately preceding the collision the plaintiff in error was driving his automobile at a dangerous and reckless rate of speed, that he was on the wrong side of the highway, and that he had just passed another moving vehicle on a sharp curve, when the view ahead was not clear for at 8 F. (2d)-39

support the recovery; but it is so apparent that a recovery of $1,500 by a husband for the death of his wife is not excessive that we will not discuss the assignment, except in connection with an exception to the charge of the court permitting a recovery for hospital and medical services.

[3] Our attention has not been called to any decision of the Supreme Court of Idaho on that question, but the authorities from other jurisdictions fully sustain the ruling of the court below. "While under some decisions, adhering to the strict rule that the sole measure of damages is the pecuniary loss occasioned by the destruction of the life of the deceased person, there can be no recovery for medical or funeral expenses, the weight of authority is to the effect that recovery can be had for medical and funeral expenses which have been paid by the beneficiaries, or for which they are liable, provided reasonable value thereof is shown, and provided it appears that the amounts charged are reasonable." 17 C. J. 1338. The judgment is affirmed.