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December 1, 1871


[Syllabus from pages 270-272 intentionally omitted]

ERROR to the Circuit Court for the Eastern District of Wisconsin.

Henry Whitton, as administrator of the estate of his wife in Wisconsin, under letters of administration granted in that State, brought suit in 1866 in the of the State courts of Wisconsin to recover damages for the death of his wife; the same having been caused, as he alleged, by the carelessness and culpable mismanagement of the Chicago and Northwestern Railway Company.

The action was founded on a statute of Wisconsin, which provides that 'whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this State, and, in some court established by the constitution and laws of the same.'

The statute also provides that 'every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered shall belong and be paid over to the husband or widow of such deceased person, if such relative survive him or her,' and that 'the jury may give such damages, not exceeding five thousand dollars, as they shall deem fair and just, in reference to the pecuniary injury resulting from such death, to the relatives of the deceased.'

Whilst the cause was pending in the State court, where it was originally brought, and after issue joined, Congress passed an act of March 2d, 1867,*fn1 amending the act of July 27th, 1866, 'for the removal of causes in certain cases from State courts.' By this amendatory act it is provided that in suits then pending, or which might be subsequently brought in a State court, 'in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of $500, exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file in such State court an affidavit stating that he has reason to, and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court, may, at any time before the final hearing or trial of the suit, file a petition in such State court,' and have the suit removed to a Federal court.

Under this act the plaintiff, in September, 1868, petitioned the State court for the removal of the action to the Circuit Court of the United States for the District of Wisconsin, stating, in his petition, that he was at the time, and had been for the three previous years, a resident and citizen of the State of Illinois; that the defendant was a corporation organized under the laws of Wisconsin, and that the matter in dispute exceeded the sum of $500, exclusive of costs. The plaintiff also offered with his petition good and sufficient surety as required by the act of Congress, for entering in the Circuit Court at its next session, copies of all process, pleadings, depositions, testimony, and other proceedings in the action, and for doing such other appropriate acts as by the laws of the United States are required for the removal of a suit into the United States court. Accompanying this petition was the affidavit of the plaintiff that he had reasons to believe, and did believe, 'that, from prejudice and also from local influence,' he would not be also to obtain justice in the State court.

The petition was resisted upon affidavits that the defendant was a corporation created and existing under the laws of the States of Illinois, Wisconsin, and Michigan; that its line of railway was located and operated, in part in each of these States, and was thus located and operated at the commencement of the action; that its entire line of railway was managed and controlled by the defendant as a single corporation; that all its powers and franchises were exercised and its affairs managed and controlled by one board of directors and officers; that its principal office and place of business was at the city of Chicago, in the State of Illinois, and that there was no office for the control or management of the general business and affairs of the corporation in Wisconsin.

The local State court granted the petition, and ordered the removal of the action to the Federal court, but directed a stay of proceedings upon its order to enable the defendant to appeal from it to the Supreme Court of the State, and provided that, in case such appeal should be taken, all proceedings should be stayed until its determination.

The appeal was taken, and the order of removal was reversed by the Supreme Court. The reversal, as appears from the opinion of the court, was placed on the ground that the plaintiff, having the right originally to pursue his remedy either in a Federal or State court, had made his election of the State court, and had thus waived the right to demand the judgment of the Federal court upon the matter in controversy.

The plaintiff, however, did not regard the stay of proceedings or delay his action until the disposition of the appeal, but procured copies of the papers in the cause from the State court and filed them in the Circuit Court of the United States. The latter court thereupon took jurisdiction of the case and a new declaration was filed by the plaintiff.

In the meantime the defendant, upon affidavit of the stay upon the order of removal made by the State court and of the appeal from such order, moved the Circuit Court that the cause be dismissed from its calendar and the pleadings and proceedings be stricken from its files. But this motion the court denied, and thereupon the defendant filed a plea in abatement, setting forth an objection to the jurisdiction of the Federal court, founded upon the proviso to the statute of Wisconsin requiring the action for damages resulting from the death of a party to be brought in some court established by the constitution and laws of that State. A demurrer to this plea being sustained, the defendant filed a plea of the general issue. Subsequently, upon the reversal of the order of removal by the Supreme Court of the State, the defendant moved the Circuit Court to remand the cause to the State court, but the Circuit Court refused to relinquish its jurisdiction, and the motion was denied.

The case having accordingly come up for trial, the facts appeared to be these: The deceased died in December, 1864, from injuries received from a locomotive of the railroad company, defendant in the case, whilst she was endeavoring to cross its railway track, in Academy Street, in Janesville, Wisconsin. This street ran nearly north and south, and was crossed by four parallel railway tracks, lying near each other and running in a direction from northeast to southwest. Two of these–those on the northerly side–belonged to the Milwaukee and Prairie du Chien Railway Company; and the other two belonged to the defendant, the Chicago and Northwestern Railway Company. One Mrs. Woodward and a Mr. Rice were standing, together with Mrs. Whitton (the deceased), just previous to the accident, upon the cross-walk on the northerly side of the tracks, waiting for a freight train of the Milwaukee and Prairie du Chien Railway, then in motion, to pass eastwards, so that they might proceed down the street and over the tracks. The weather was at the time extemely cold, and a strong wind was blowing up the tracks from the southwest, and snow was falling. As soon as the freight train had passed, Rive crossed the tracks, moving at a brisk rate. In crossing, he states that he took a look at the tracks and that he neither saw nor heard any engine on the tracks of the defendant. Almost immediately after getting across, and before he had gone many steps, he heard a scream, and on turning around saw that the women–Mrs. Whitton and Mrs. Woodward–had been knocked down by a locomotive of the defendant. This locomotive was at the time backing down in a westerly direction–opposite to that taken by the freight train which had just passed–the tender coming first, then the engine drawing a single freight car. The persons in this locomotive did not appear to be aware of the injuries they had occasioned, and the locomotive continued on its course until their attention was called to the disaster by the efforts of Rice, when it was stopped. No person saw the locomotive strike the deceased, or noticed her conduct after Rice left her and started to cross the tracks. The injuries which both of the women received resulted in their death. Mrs. Woodward died soon afterwards, and Mrs. Whitton after lingering some weeks. There was much conflict of evidence upon the point whether the bell was rung on the locomotive as it backed down the track and approached Academy Street, so as to give warning to persons who might be on that street wishing to cross, and was kept ringing until the locomotive and tender crossed the street. Rice testified that he did not hear any bell or signal from this train, but that the bell of the freight train which had passed was ringing.

Among other witnesses, the surgeon who attended Mrs. Whitton was examined, and of him the question was asked whether she was pregnant at the time of the accident. To this question objection was taken by the defendants as improper and immaterial; but the objection was overruled and exception taken. The witness answered that she was. The evidence being closed, the defendant asked nineteen different instructions, which the court refused to give, except in so far as they were contained in the instructions whose substance is hereinafter mentioned and given of its own accord. Among the nineteen were these two:

'Under ordinary circumstances a person possessing the use of those faculties should use both eyes and ears to avoid injury in crossing a railway track; and if in this case the wind and noise of the freight train tended to prevent Mrs. Whitton from hearing the approach of defendant's engine, she was under the greater obligation to use her eyes. It was her duty to look carefully along the tracks of defendant's railway, both northwardly and southwardly, before attempting to cross them, and it was not sufficient excuse for failing to do so that the day was cold and windy, or that one train had just passed on the track nearer to her.

'It was the duty of Mrs. Whitton to look carefully along the tracks of defendant's railway to the north before putting herself in the way of danger, and in time to see and avoid any engine or train approaching from that direction. If necessary, in order to do this, it was her duty to pause before starting to cross until the freight train had so far passed as to give a sufficient view to determine whether she could safely cross; and if she failed to look carefully along these tracks to the north, after the freight train had so far passed as to give her such a view, and in time to have seen and avoided defendant's engine, the plaintiff cannot recover.'

The plaintiff asked three instructions, which were refused in the same way.

The questions submitted to the jury were:

'1. Whether Mrs. Whitton's death was caused by the negligence of those who had the ...

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