The defendant in error, hereafter called the plaintiff, brought an action in the circuit court of the United States against the plaintiff in error, hereafter called the defendant, to recover damages for injuries alleged to have been suffered through the defendant's negligence. The plaintiff had a verdict, which was affirmed by the circuit court of appeals, and, under existing statutes regulating the jurisdiction of this court, the defendant, because it is incorporated under a law of the United States, has a further appeal, and brings the judgment here by writ of error.
The facts of the case are few and simple. The plaintiff was a section hand employed by the defendant, and working under direction of a foreman named Hadnott. The plaintiff, with others, had been employed under Hadnott's direction in clearing up a wreck near a flag station on the defendant's road. When the work was finished the men were taken aboard an express passenger train, known as the Cannon Ball, to be conveyed to Waggaman, a regular station on the road, where they lived. The express ordinarily did not stop at Waggaman, but simply slowed down to take on the mail. The conductor, however, directed the engineer to stop on this occasion and let the section hands off, and the train did in fact stop at Waggaman, though whether as the result of the order or of the injury to the plaintiff was in dispute. As the train approached Waggaman the men were standing on the steps of the car, ready to alight, and the train was slackening its speed. The plaintiff was on the lower step. What happened is shown by the plaintiff's testimony. He said:
'I stood all the time on the platform. The train blew for the station. When she blew we all got on the steps with out tools in our hands. She was slacking up speed. I was on the lower step, holding on to the rod of the step. That was the way to get off when we was to get off at the depot. The foreman said: 'Boys, throw your tools off, and let us get off.' That was before she got to the station; and when she slacked up, she slacked up slow enough for anybody to get off, and when I went to get off she jerked; and I grabbed, and the engineer put more speed to the engine, and that threw me down and I could not let go, and she dragged me along untilI got weak in the arms, and let go. She was running slow and she slacked up speed, and then she let go again and she made a jerk. After she slacked she started up again. I held on until I lost my grip and could not hold on any more. I fell, going under, and the wheel run over my leg. The conductor hallowed to the engineer to back up the train. He said: 'He ought to be satisfied."
On cross-examination he testified as follows:
Q. Did he (the foreman) speak to you?
A. No, sir; he did not.
Q. He said nothing to you at all?
A. When we were on the way coming we were all speaking, but when the train slacked up-when they blew the whistle for the train to stop at the depot, he told us, 'Boys, get your tools, we will get off.' Q. That was while she was slacking up?
A. Yes, sir.
Q. You say that you jumped when the train slowed at the depot?
A. Yes, sir.
Q. That was before it stopped?
A. She was not going to stop there at all.
Q. You did not know that, that is, before she stopped?
A. Well, she did not stop at all.
Q. You jumped while the train was moving?
A. Yes, sir.
Q. Then you say that the train started up suddenly?
A. Yes, sir; at the time I was getting off, she jerked before I jumped loose.
Q. Do you think it would have been the same, that you would have been hurt if the train had not started again?
A. No, sir; I do not think it would.
The petition, which was very inartificially drawn, does not clearly state the ground upon which the plaintiff sought to hold the defendant liable. It states generally that 'said misfortune' was 'due to the fault and negligence of the said defendants;' that the plaintiff was 'entitled to a safe transport' to Waggaman; and that the 'train being about to pass the station, your petitioner had no further alternative than, when ordered by his foreman, to jump from the moving train, which just then increased its speed.'
The answer denied the allegations of the petition, and averred that, if the plaintiff was injured, it was by his own voluntary act in jumping from the train, or through the negligence of one or the other of his fellow servants,-the section foreman or the conductor and engineer of the train.