Northern Pacific Northern Pacific Company v. Amato

On February 11, 1890, Dominick Amato brought an action in the supreme court of the state of New York, in the county of New York, against the Northern Pacific Railroad Company, a corporation created by an act of congress approved July 2, 1864, c. 217, (13 St. p. 365.) The summons in the action was duly served on the defendant, and it appeared by attorney.

The complaint stated that the plaintiff was a resident of the city and county and state of New York: that on or about November 6, 1888, in or near the county of Burleigh, in the then territory of Dakota, now state of North Dakota, through the negligence of the defendant, and without negligence on his part, he was run over by an engine owned and operated by the defendant, from which he sustained injuries which caused him the loss of his leg; that on account of said injuries he was confined in a hospital for 7 1/2 months, and had sustained permanent injuries which made him unable to work, and had been damaged thereby in the sum of $25,000; and that he demanded judgment against the defendant for that sum.

On the 13th of March, 1890, the defendant filed, in the supreme court of the state of New York, a petition in due form, setting forth that the action was a suit of a civil nature, arising under said act of congress, accompanied this with a proper bond, and arayed that the suit be removed into the circuit court of the United States for the southern district of New York. The supreme court of the state made an order, on the 21st of March, 1890, approving the bond, and removing the cause into the said circuit court, and staying all further proceedings therein in the state court.

A certified copy of the record being filed in the circuit court, the defendant put in its answer in that court, setting forth that on or about November 5, 1888, at or near the east end of its bridge which extends across the Missouri river, from Burleigh county to Morton county, in North Dakota, the plaintiff, who at the time was a laborer on its road, attempted, without any right or authority to do so, to get or jump upon the footboard at the front end of a locomotive engine, the property of the defendant, while the same was in motion, that he slipped and fell, and one of his legs was run over by one of the wheels of the engine; that the defendant, its agents and servants, were using due care and diligence in running said locomotive at the time of the accident, which was not due to any negligence on the part of the defendant, its agents or servants, but was owing to the negligence and fault of the plaintiff himself; and that that was the matter referred to in the complaint; and the answer denies each and every allegation in the complaint contained, not thereinbefore specifically admitted.

The case was tried by a jury, in April, 1891, before Judge COXE, and resulted in a verdict for the plaintiff for $4,000. On May 28, 1891, a judgment was entered for the plaintiff for the $4,000, with $26.66 interest and $33.10 costs, amounting in all to $4,059.76. A motion was afterwards made before Judge COXE to set aside the verdict as contrary to law and against the weight of evidence, and because the damages were excessive. On the 24th of June, 1891, Judge COXE filed an opinion (46 Fed. Rep. 561) denying the motion. A bill of exceptions was duly made and signed, July 16, 1891, and filed July 22, 1891.

A writ of error to review the judgment, returnable August 20, 1891, was duly sued out by the defendant from the circuit court of appeals for the second circuit. The plaintiff moved in that court to dismiss the writ of error for want of jurisdiction. On the 25th of January, 1892, an order was entered in that court denying the motion to dismiss, and affirming the judgment of the circuit court, and ordering that a mandate issue to the latter court directing it to proceed in accordance with the decision and order of the circuit court of appeals. 49 Fed. Rep. 881. An opinion, on the affirmance by the circuit court of appeals, was delivered by Judge LACOMBE, and is set forth in the record.

On the 20th of February, 1892, the defendant sued out a writ of error from this court, which was allowed by an associate justice of this court, to review the judgment of the circuit court of appeals, and the transcript of the record has been duly filed in this court. The plaintiff now moves to dismiss the writ of error and to affirm the judgment.

Roger Foster, for defendant in error.

[Argument of Counsel from pages 468-469 intentionally omitted]

A. H. Garland and H. J. May, for plaintiff in error.

[Argument of Counsel from pages 470-471 intentionally omitted]

Mr. Justice BLATCHFORD delivered the opinion of the court.