(289 F.)

Alexander Murchie, of Concord, N. H. (Murchie & Murchie, of Concord, N. H., on the brief), for defendant in error.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

HALE, District Judge. This action was brought by the administrator of the estate of Thomas Richardson, late of Lebanon, N. H., against the Boston & Maine Railroad, for personal injuries caused by the alleged negligence of the defendant, and resulting in the death of plaintiff's decedent. It is alleged that the injury was sustained by Richardson upon a highway in Lebanon, at a grade crossing, where he was run over and killed by a locomotive of the defendant road. The action is brought under a statute of New Hampshire which allows recovery, in case of personal injury resulting in death, to the extent of $10,000, provided the deceased leaves a widow or minor children or a dependent father or mother. In this case the deceased left a widow and two minor children. In this opinion the administrator will be referred to as the plaintiff and the Boston & Maine Railroad as the defendant. On a trial in the United States District Court for the District of New Hampshire, a verdict was returned by the jury for the plaintiff. The defendant contends that the injury happened while Richardson was attempting to meet and pass an automobile at the crossing; that there was no negligence on the part of the railroad, but that the negligence which caused the injury and death consisted in the acts of Richardson at the crossing and in the conduct of the automobile driver in driving his car.

The case now comes before the court on defendant's exceptions and writ of error. The errors assigned are as follows:

(1) The court erred in sustaining jurisdiction, because an action for the same cause had been brought in the New Hampshire superior court, in which there had been a trial and a disagreement of the jury.

(2) Also because the plaintiff is an alien and not entitled to bring suit in the federal court in his representative capacity under an appointment of the New Hampshire probate court.

(3) The court erred in denying defendant's motion for a directed verdict.

(4) Also because it denied defendant's motion to set aside the verdict.

[1] 1. In the first assignment of error, the defendant says that an action for the same cause had previously been brought in the superior court for the county of Grafton and state of New Hampshire, in which action there had been a trial by jury resulting in a disagreement, and that the action was then pending in said superior court. In reference to this assignment of error it is now well settled in the federal courts that the pendency of a prior suit in a state court is not ground for abatement of a subsequent suit in the federal court, even though the prior suit is between the same parties and for the same cause. In McClellan v. Carland, 217 U. S. 268-282, 30 Sup. Ct. 501, 505 (54 L. Ed. 762), speaking for the Supreme Court of the United States, Mr. Justice Day observed:

289 F.-21

"The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction, for both the state and federal courts have certain concurrent jurisdiction over such controversies, and when they arise between citizens of different states the federal jurisdiction may be invoked, and the cause carried to judgment, notwithstanding a state court may also have taken jurisdiction of the same case."

In Barker v. Eastman, 76 N. H. 277, 282, 82 Atl. 166, 168, Judge Bingham called attention to the same rule of law in this circuit:

"It has been held in the Circuit Court of the United States for this cireuit, that the state court, although exercising concurrent jurisdiction with the federal court in this district, is not a domestic, but a foreign court, and that a plea in abatement setting forth the pendency of a prior suit in the state court between the same parties, involving the same subject-matter, and asking for the same relief, will not abate the suit in the federal court.".

See Hughes v. Elsher (C. C.) 5 Fed. 263; Latham v. Chafee (C. C.) 7 Fed. 520; Lynch v. Insurance Co. (C. C.) 17 Fed. 627, 628.

In the case last cited, Judge Aldrich referred to the leading case upon the subject, Hyde v. Stone, 20 How. 170-175 (15 L. Ed. 874), in which the Supreme Court said:

"This court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. In many cases, state laws form a rule of decision for the courts of the United States, and the forms of proceeding in these courts have been assimilated to those of the states, either by legislative enactment or by their own rules. But the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction."

[2] 2. In the second assignment of error the defendant complains that the court refused to dismiss the suit for lack of jurisdiction; because the plaintiff is an alien, and is not entitled to bring an action in the federal court in his representative capacity, as administrator of the deceased, under an appointment of a probate court in New Hampshire. The defendant urges that, in this suit, the amount recovered for the estate is afterwards distributed to the heirs, and that hence they are the true parties in interest, and that their citizenship should control. The plaintiff calls attention to the fact that this objection was not raised by a plea of the defendant, but was raised afterwards in an incompetent manner. It is not, however, necessary to inquire how the question is raised. It is enough to say that, on this question of representative or official citizenship, it is clear that a suit for causing a death in New Hampshire can be prosecuted only by the personal representative of the deceased, and that he has complete control of the suit; for the purposes of the case he is the party in interest. In Amory v. Amory, 95 U. S. 186, 187 (24 L. Ed. 428), speaking for the court, Mr. Chief Justice Waite said:

"Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons."

Here the personal representative is an alien, but Judicial Code, § 24 (Comp. St. § 991) provides that "The District Courts shall have

original jurisdiction

*

(289 F.)

of all suits of a civil nature between citizens of a state and foreign states, citizens, or subjects." [3] It is the invariable doctrine of the federal courts that, where the personal representative controls the suit, his citizenship controls the jurisdiction. Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Rice v. Houston, 13 Wall. 66, 20 L. Ed. 484; Continental Ins. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. Ed. 380; Monmouth Inv. Co. v. Means, 151 Fed. 159, 80 C. C. A. 527; Cincinnati, etc., R. Co. v. Thiebaud, 114 Fed. 918, 52 C. C. A. 538.

See, also, cases in the First circuit-Boston & M. R. R. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193; Bishop v. Boston & M. R. R. (C. C.) 117 Fed. 771; Boston & M. R. R. v. Titcomb, 236 Fed. 129, 130, 149 C. C. A. 339.

[4] 3. The third assignment of error presents the question whether the defendant's motion for a directed verdict should, or not, have been granted.

It is contended by the defendant that there is not sufficient evidence in the case to sustain a verdict for the plaintiff. The negligence relied upon by the plaintiff consisted of four elements: First, that the defendant allowed its automatic grade-crossing signal, viz. bell and lights, to get out of repair, so that it was not working at the time of the accident; second, that the defendant's engineer failed to give the statutory grade-crossing signal, two long and two short blasts of the whistle on the engine; third, that the defendant's engineer failed to ring the engine's bell, from the time the engine passed the whistling post until it passed over the crossing, as required by the laws of New Hampshire; fourth, that the engineer failed in his duty to prevent the accident after he discovered Richardson in a place of danger. Upon all these questions there was a sharp conflict of testimony. There was affirmative evidence on the part of the defendant that the gradecrossing signals were in proper condition and were working at the time of the accident. There was much testimony offered by the plaintiff that the grade-crossing signal was out of repair and was not working at the time of the accident; that the attention of several witnesses was called especially to the subject; that it was raining very hard and was quite dark; that the crossing lights were not burning and the crossing bells were not ringing; that the crossing signal had failed before; that the railroad had been warned a number of times; and that it had had flagmen at the crossing on some occasions when the signal was not working. Several witnesses testified affirmatively that the automatic bell did not ring or the lights flash when the train was on the crossing, or when it came back over the crossing after it had backed up to the station. Upon all the questions of negligence there was a sharp conflict of testimony. The defendant urged that, even though the whistle was not sounded and the bell was not rung, the railroad would not be liable for the injury, because its negligence was not the proximate cause of the injury, but that the proximate cause of the injury was the act of the automobile driver in running his automobile and the contributory negligence of Richardson in approaching the crossing.

We have examined the instructions which the presiding judge gave upon this point; that if the jury should find that the failure of these warning signals led the automobile driver and Richardson to approach the crossing from opposite sides, with the purpose of crossing over, and led them into a place of danger, into which they would not have gone had they been warned, and from which they could not, by the exercise of reasonable care, extricate themselves in time to avoid being hit by the train, in that case the jury might competently find that the negligence of the railroad was the proximate cause of the injury; and that the confusion of the deceased and the stalling of the automobile would be only circumstances in the sequence of events that led up to the accident.

There was a sharp conflict of testimony, also, relating to Richardson's alleged contributory negligence. Here the burden of proof was upon the defendant. The charge of the judge clearly called the attention of the jury to the questions before them and to the testimony relating to those questions. It may be said that upon every issue of fact relating to the alleged negligence, there was contradictory testimony; under such conditions it is clear that the judgment of the jury was properly invoked. It seems clear, also, that there was sufficient testimony in the case to justify the jury in arriving at the verdict which they rendered. The record shows that Judge Morris clearly and competently charged the jury touching their findings upon the several questions of fact brought before them.

We are of the opinion that the motion to direct a verdict for the defendant was properly denied.

[5] 4. The fourth assignment of error is to the refusal of the trial court to set aside the verdict of the jury. It appears that, after the verdict, a motion was made to the trial court to set aside the verdict, as against the evidence and the weight of evidence, and for many reasons fully set forth in the very ample motion of the defendant. It is enough to say that in the federal courts the rule is clear that this matter does not come before the appellate court. In Victor Am. Fuel Co. v. Tomljanovich, 232 Fed. 662, 666, 146 C. C. A. 588, speaking for the Court of Appeals, Judge Putnam said:

"The federal courts adhere closely to the English practice, by which, in ordinary cases, the question of setting aside a verdict as against evidence is for the trial judge. The practical rule is stated, though perhaps too strongly, in The Connemara, 108 U. S. 352, 360."

[6] The motion also calls attention to excessive damages; but no question is here raised for an appellate court. In Lincoln v. Power, 151 U. S. 436, 437, 14 Sup. Ct. 387, 388 (38 L. Ed. 224), the Supreme Court held:

"It is not permitted for this court, sitting as a court of errors, in a case wherein damages have been fixed by the verdict of a jury, to take notice of an assignment of this character, where the complaint is only of the action of the jury."

The judgment of the District Court is affirmed, with interest; the defendant in error recovers costs in this court.

(289 F.)

SOUTHERN RY. CO. v. DOUGLAS.

(Circuit Court of Appeals, Sixth Circuit. May 8, 1923.)

No. 3794.

1. Carriers 348 (7)—Instructions in action for injury to passenger approved. In an action against a railroad company for injury to a passenger by the movement of the train without warning while she was alighting at a station, the issue of plaintiff's contributory negligence held correctly submitted to the jury by the instructions.

2. Trial 260 (1)—Requests covered by general charge properly refused.

The refusal to give requested instructions sufficiently covered by the general charge is not error.

3. Trial 251 (8)—Requests inapplicable to issues properly refused.

Where plaintiff claimed no negligence of defendant carrier, other than as specifically alleged in her declaration, the refusal of defendant's requested instruction as to its duty in other respects, not in issue, was not error. 4. Carriers 317(7)—Evidence of failure to station employee at coaches where passengers were alighting admissible to show failure to give warning of train movement.

In a passenger's action for injuries received while alighting by the sudden starting of the train to move it to its proper place at the station platform, evidence that no employees were stationed at the place the coaches first stopped, to warn or assist alighting passengers was admissible to prove that no warning was given, though plaintiff alleged no negligence in failing to assist her to alight.

5. Appeal and error 1170(7)—Where court restricted Jury to consideration of acts of negligence specified, admission of evidence of other negligence harmless.

Where plaintiff claimed injury from sudden starting while she was alighting, but claimed no negligence from failure to assist her to alight, and the court limited the jury to consideration of particular acts of negligence alleged, the admission of evidence that defendant did not station employees at place where coaches stopped to assist passengers to alight, or warn them that train was about to move, held, under Judicial Code, $ 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246), not prejudicial, even if such evidence was incompetent for any purpose.

In Error to the District Court of the United States for the Western District of Tennessee; J. W. Ross, Judge.

Action at law by Mollie Douglas against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. Robert E. King, of Memphis, Tenn. (Ewing, King & King, of Memphis, Tenn., on the brief), for plaintiff in error.

G. T. Fitzhugh, of Memphis, Tenn. (Edwin G. Bell, of Memphis, Tenn., on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE, Circuit Judge. The defendant in error brought an action in the circuit court of Shelby county, Tenn., to recover damages from the Southern Railway Company for personal injuries sustained by her and alleged to have been occasioned by the negligence of the defendant, while she was alighting from the defendant's passenger

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