Additional Argument for Plaintiff in Error.

possesses, but for its very existence, since the generous manner in which the state bestowed pecuniary aid and assistance enabled it to be constructed, it ought to be very clear that this creature of Tennessee cannot be brought to justice in her courts before it is so decided. Under the circumstances doubts, if any there be, must be resolved in favor of the state.

For these reasons we respectfully submit that the case should be reversed, to the end that it may be remanded to the state court of Tennessee in which it was originally instituted.

Mr. Edward Baxter for defendant in error.

After argument the following order was made by the court, April 18, 1887.

Leave is granted counsel on both sides to file additional printed arguments on the third, fourth, fifth, and sixth assignments of error at any time before Monday, May 2, if they desire to do so. It is the wish of the court that this be done. Mr. F. E. Williams under this order submitted a brief for plaintiff in error.

The court charged the jury as follows: The court amongst other things charged the jury that the question of jurisdiction was for the court, and that the defendant had the right to remove, and had removed, the cause from the state court to the United States Circuit Court; that the legislature of Tennessee had not incorporated the defendant, but had merely given to it, as a corporation of the state of Kentucky, a license or privilege to extend its railroad through Tennessee from the Kentucky line to Nashville; that this case fell under the authority of the case of The Railroad Company v. Harris, 12 Wall. 65, 86.

"This brings us, gentlemen of the jury, to that part of the case within your province. The evidence in the case satisfies me that the defendant complied with the requirements of § 1166, Code of Tennessee, so far as the circumstances attending plaintiff's injury are concerned. Plaintiff was an employe of defendant and bound to use at least the care and diligence of

Additional Argument for Plaintiff in Error.

a reasonable and prudent man in its service. He seems to have gone two or three times to the agent at Franklin to inquire the time, thus showing that something had raised his apprehensions and put him on his inquiry. He stopped his hand-car and listened for approaching trains, and yet went into the deep cut and sharp curve, where he was hurt, without having sent any flagman or other person ahead to warn him or the train of approaching danger. In this he did not exercise reasonable care and prudence, but was guilty of negli gence, so that had the people upon the train or the persons controlled by him been injured, they could have recovered against his employer for his negligence. Under the facts

proven in this case, were you to give a verdict against the defendant, I should feel bound to set it aside and grant a new trial. In such a state of the case it is my duty to instruct you to find a verdict for the defendant, and I accordingly do so, declining to give the instructions requested by plaintiff's counsel." The assignments of error referred to in the order of the 18th of April are as follows:

Third. The court erred in taking the case from the jury, and in saying to them: "The evidence in the case satisfies me that the defendant complied with the requirements of § 1166, Code of Tennessee, so far as the circumstances attending plaintiff's injuries are concerned."

Fourth. The court erred in charging the jury as follows: "Under the facts proven in this case, were you to give a verdict against the defendant, I should feel bound to set it aside and grant a new trial. In such a state of the case it is my duty to instruct you to find a verdict for the defendant, and I accordingly do so, declining to give the instructions requested by plaintiff's counsel."

Fifth. The court erred in charging the jury, in effect, that the plaintiff did not exercise reasonable care, but was guilty of negligence, and that this negligence defeated any right of

recovery.

Sixth. The court erred in withdrawing the case from the jury when there were disputed facts in issue.

The charge of the judge presiding below shows that the

Additional Argument for Plaintiff in Error.

question of negligence was considered by him as one determinative of the plaintiff's right to recover. Said the judge: "Plaintiff was an employe of defendant and bound to use at least the care and diligence of a reasonable and prudent man in its service. He went into the deep cut and sharp curve, where he was hurt, without having sent any flagman or other person ahead to warn him or the train of approaching danger. In this he did not exercise reasonable care and prudence, but was guilty of negligence."

And for this reason he said: "The evidence in the case satisfies me that the defendant complied with the requirements of § 1166, Code of Tennessee, so far as the circumstances attending plaintiff's injury are concerned.”

It is obvious that the plaintiff's "negligence" and "want of care" in going into the cut and sending no flagman forward, were the chief "circumstances attending the plaintiff's injury," which satisfied his honor that the railroad company had complied with the requirements of the Code of Tennessee. But, as he had that conception of the law, he naturally concluded that he could not allow a verdict against the defendant (if one should be rendered) to stand; and he directed a verdict to be returned for the defendant.

We respectfully submit that this is an erroneous interpretation of the statutes regulating the running of railroads in Tennessee. See Hill v. Louisville & Nashville Railroad, 9 Heiskell, 823; Louisville & Nashville Railroad v. McKenna, 7 Lea, 313; Railroad v. Gardner, 1 Lea, 688, 691.

The statute is imperative. If the company fail to observe all the statutory requirements, it is responsible even though the plaintiff was guilty of contributory negligence. Contributory negligence does not affect the plaintiff's right to recover, but must be considered in mitigation of damages. Nashville, &c., Railroad v. Nowlin, 1 Lea, 523; Railroad v. Gardner, 1 Lea, 688, 692; Louisville & Nashville Railroad v. Connor, 2 Baxter, 382, 388; Nashville, &c., Railroad v. Smith, 6 Heiskell, 174; Railroad v. Walker, 11 Heiskell, 383, 385, 386. The fact that the injured person is an employe of the company is immaterial, so far as the general lines of the road are

Additional Argument for Plaintiff in Error.

concerned; but there is one exceptional case wherein the fact that the person guilty of contributory negligence is an employe is material, and goes to the very right of action. "The statute, in terms, makes no exception." But the courts of Tennessee have made one, which is that this statute does not apply to the employes of the company engaged in “making up" trains and switching cars, &c., in the yards and depots of the company. Louisville & Nashville Railroad v. Robertson, 9 Heiskell, 276, 282; Haley v. Mobile & Ohio Railroad, 7 Baxter, 239, 244; Moran v. Nashville, &c., Railroad Co., 2 Baxter, 379, 381.

The precautions which the statute prescribes are of two kinds general and particular. The particular, specified in the statute, are: (a) To always keep a lookout ahead; (b) when any person, animal, or other obstruction appears upon the track to sound the alarm whistle; (c) and put the brakes down. The general precautions are demanded by the words, "every possible means." By this is understood that the engine shall be reversed; that all the brakes were applied; that there were sufficient brakemen; that the machinery was in good order, and up to the present state of the art; and that the employes used all the means at their command to stop the train and prevent the accident.

And the burden of proof is on the company to show that all these requirements were observed. Code of Tenn. 1884 (Milliken and Vertrees), § 1300. Louisville & Nashville Railroad v. Parker, 12 Heiskell, 49.

Another thing must be noted in this connection, and that is, the provision that some person shall always be upon the lookout ahead, means that as soon as the person or animal on the track could be seen by the lookout, it must be seen. It is not sufficient for the company to show that as soon as it was seen everything possible was done to stop the train, but the company must also show that the person or animal was seen as soon as it could have been seen by the lookout doing his duty at his post. Railroad v. White, 5 Lea, 540; Louisville & Nashville Railroad v. Connor, 9 Heiskell, 19, 26.

An examination of the evidence shows that these precautions were not observed.

Opinion of the Court.

III. If there is any evidence tending to prove the issue on either side, it is error to withdraw the case from the jury. Hickman v. Jones, 9 Wall. 197; Manchester v. Ericsson, 105 U. S. 347; United States v. Tillotson, 12 Wheat. 180. Directions to find for a party can only be given where there is no conflicting evidence. Klein v. Russell, 19 Wall. 433; Moulor v. Ins. Co., 101 U. S. 708. A case should not be withdrawn from a jury unless facts are undisputed or testimony so conclusive that a verdict in conflict with it would be set aside. Conn. Ins. Co. v. Lathrop, 111 U. S. 612; Phonix Ins. Co. v. Doster, 106 U. S. 30. It is true the rule is that when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is insufficient to support a verdict, so that such verdict, if returned, must be set aside, the court may direct a verdict for the defendant. Schofield v. Chicago & St. Paul Railway, 114 U. S. 619. But that is not this case.

MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.

The first question presented by the assignments of error relates to the refusal by the court below to remand the action to the state court. If the defendant is a corporation of Kentucky, then its right to have the case removed from the state court cannot be denied.

Whether a corporation created by the laws of one state is also a corporation of another state within whose limits it is permitted, under legislative sanction, to exert its corporate powers, is often difficult to determine. This is apparent from the former decisions of this court. To some of those decisions it will be well to refer, before entering upon the examination of the particular statutes of Tennessee, which, it is claimed, created the defendant a corporation of that state.

In Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286, 293, 297, it was a question whether that company was not a corporation both of Indiana and Ohio. The company, claiming in its declaration to be "a corporation created by the

VOL. CXXII-26