UNITED STATES SUPREME COURT DECISIONS ON-LINE

In an action in which no application for removal to the federal court was made at any time, held that, if the right existed, it furnished no defense to the action on the merits in the state court.

In instructing the jury that railroads are required to keep their appliances in good and suitable order, no right arising under the Act of March 2, 1893, in respect of automatic couplers was denied, nor was any such specially set up or claimed within § 709, Rev.Stat.

Carson, a resident of Greenville County, South Carolina, brought this suit in the court of common pleas of that county against the Southern Railway Company, a corporation chartered under the laws of the State of Virginia, and engaged in running trains through several states as a common carrier, and J. C. Arwood and J. D. Miller, residents of Greenville County, to recover damages for personal injuries, which, he charged in his complaint,

"were due to the joint and concurrent negligence, carelessness, and fault of the defendants, and to their joint and concurrent recklessness, carelessness, willfulness, and wanton disregard of the plaintiff's rights and safety, in the following manner, to-wit:"

setting forth the circumstances of his cause of action. Among other things, plaintiff alleged that he was a flagman in the employment of the Southern Railway Company, and on the day of the accident was ordered by Arwood, the conductor in charge of a certain freight train, on which Miller was engineer, to do the work of brakeman, and to couple some of the cars in the train; that these cars were provided with automatic couplers, but one of them was not in proper condition, which rendered it necessary for plaintiff to go between the cars to effect the coupling, and that the accident clubjuris

Page 194 U. S. 137

thereupon happened by reason of defendants' "joint and concurrent carelessness, negligence, recklessness," etc., in particulars detailed.

Defendants severally demurred, the demurrers were overruled, and defendants excepted. Defendants then answered severally, in identical terms, denying all negligence on the part of defendant and asserting "that the plaintiff's alleged injury was the result of his own negligence." Trial was had, and the jury found for plaintiff, against the railway company, judgment was entered, and the railway company appealed to the supreme court of the state. That court affirmed the judgment, 46 S.E. 525, and thereupon this writ of error was allowed.