chinery, knew, or by reasonable care might have known, provided plaintiff did not know of the defects, and did not by his own negligence contribute to the injury. 14 C. C. A. 373, 67 Fed. 214, and 30 U. S. App. 196, affirmed.

In Error to the United States Circuit Court of Appeals for the Fifth Circuit.

John F. Dillon, W. S. Pierce, and D. D. Duncan, for plaintiff. A. H. Garland and R. C. Garland, for defendant.

Mr. Chief Justice FULLER delivered the opinion of the court.

This was an action to recover for personal injuries, brought by Barrett, in the district court of Tarrant county, Tex., against the Texas & Pacific Railway Company, and removed, on the application of the company, to the circuit court of the United States for the Northern district of Texas. Plaintiff obtained a verdict and judgment, and defendant thereupon carried the case on writ of error to the circuit court of appeals for the Fifth circuit, by which the judgment was affirmed. 30 U. S. App. 196, 14 C. C. A. 373, and 67 Fed. 214. Plaintiff's complaint averred that he "is a resident of said Tarrant county, and that defendant is a railway corporation,* duly incorporated." The petition for removal was sufficient, and, as the company was created by act of congress, the circuit court properly entertained jurisdiction. Railway Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703.

On the trial there was evidence tending to show that Barrett, while in the employment of the company as foreman in charge of a switch engine, and at work in the company's yard, was injured by the explosion of another engine, with which he had nothing, and was not required to have anything, to do, and which had been placed by the foreman of the roundhouse on a track in the yard, with steam up, to take out a train; that the boiler of the locomotive, at the time it exploded, and for a considerable time before that, was and had been in a weak and unsafe state, by reason of the condition of the stay bolts, many of which had been broken before the explosion, and some of them for a long time before; that there were well-known methods of testing the condition of stay bolts in a boiler engine; and that, if any of these tests had been properly applied to this boiler within a reasonable time before the explosion, the true condition of the stay bolts would have been discovered.

The circuit court instructed the jury, at defendant's request, "that the master is not the insurer of the safety of its engines, but is required to exercise only ordinary care to keep such engines in good repair, and, if he has used such ordinary care, he is not liable for any injury resulting to the servant from a defect therein not discoverable by such ordinary care": "that the mere fact that an inJury is received by a servant in consequence of an explosion will not entitle him to a recovery, but he must, besides the fact of the

explosion, show that it resulted from the fallure of the master to exercise ordinary care, either in selecting such engine, or in keeping it in reasonably safe repair"; and “that a railway company is not required to adopt extraordinary tests for discovering defects in machinery, which are not approved, practicable, and customary, but that it fulfills its duty in this regard if it adopts such tests as are ordinarily in use by prudently conducted roads engaged in like business, and surrounded by like circumstances."

And thereupon further charged that a rail-* way company is bound to use ordinary care to furnish safe machinery and appliances for the use of its employés, and the neglect of its agents in that regard is its neglect; that it is not bound to insure the absolute safety thereof, nor to supply the best and safest and newest of such mechanical appliances, but is bound to use all reasonable care and prudence in providing machinery reasonably safe and suitable for use, and in keeping the same in repair; that "by ordinary care is meant such as a prudent man would use under the same circumstances; it must be measured by the character and risks of such business; and where such persons, whose duty it is to repair the appliances of the business, know, or ought to know by the exercise of reasonable care, of the defects in the machinery, the company is responsible for their neglect"; that "if the jury believe from the evidence, under the foregoing instructions, that the boiler which exploded and injured the plaintiff was defective, and unfit for use, and that defendant's servants, whose duty it was to repair such machinery, knew, or by reasonable care might have known, of such defects in said machinery, then such neglect upon the part of its servants is imputable to the defendant, and if said boiler exploded by reason of said defects, and injured the plaintiff, the defendant would be responsible for the injuries inflicted upon plaintiff, if plaintiff in no way, by his own neglect, contributed to his injuries"; but that "the burden of the proof is on the plaintiff throughout this case to show that the boiler and engine that exploded were improper appliances to be used on its railroad by defendant; that, by reason of the particular de fects pointed out and insisted on by plaintiff, the boiler exploded, and injured plaintiff. The burden is also on plaintiff throughout to show you the extent and character of his sufferings, and the damages he has suffered by reason thereof. You must also be satisfied that plaintiff was ignorant of the defects in the boiler that caused its explosion, if the evidence convinces you that such was the case; and that he did not by his negligence contribute to his own injury."

We think that these instructions laid down the applicable *rules with sufficient accuracy and in substantial conformity with the views of this court as expressed in Hough v. Railway Co., 100 U. S. 218; Railroad Co. v. Herbert, 116 U. S. 647, 6 Sup. Ct. 590; Railroad

+420

Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044; Railroad Co. v. Daniels, 152 U. S. 688, 14 Sup. Ct. 756; Railroad Co. v. Babcock, 154 U. S. 190. 14 Sup. Ct. 978; and other cases. Exceptions were preserved to portions of the charge, and to the refusal of the circuit court to give certain instructions requested by defendant; but, taking the charge as a whole, we are of opinion that the circuit court of appeals rightly held that no reversible error was committed. These matters fully appear in the report of the case in that court, and we do not feel called upon to restate them here in detail.

Judgment affirmed.

(166 U. S. 648)

F. G. OXLEY STAVE CO. et al. v. BUTLER
COUNTY, MO., et al.
(April 19, 1897.)
No 221.

APPEAL AND ERROR-JURISDICTION OF SUPREME
Court.

The general allegation or claim that a decree sought to be declared void was passed against some persons who were at the time dead, and against others who were necessary parties, but who had no notice of the proceedings, does not, within the meaning of Rev. St. 709, fixing the revisory power of the supreme court as to judgments of state courts, "specially set up" a right or immunity under the fourteenth amendment of the constitution of the United States, forbidding a state to deprive any person of his property without due process of law; it not appearing that the supreme court of the state regarded these general allegations as asserting such federal right or immunity.

In Error to the Supreme Court of the State of Missouri.

*This writ of error brings up for review a final judgment of the supreme court of Missouri reversing a judgment of the circuit court of the city of St. Louis, Mo., setting aside, and declaring to be null and void, certain conveyances of lands in Butler county, Mo., and quieting the title thereto of the present plaintiffs in error.

It is contended on behalf of the defendants in error, who were defendants below, that, under the statutes regulating the jurisdiction of this court, we have no authority to reexamine that judgment.

It appears from the petition that the lands in controversy were part of the lands granted to Missouri by the swamp land act of 1850 (9 Stat. 519, c. 84), and were subsequently, In 1857, patented by the state to the Cairo & Fulton Railroad Company, a Missouri corporation, in payment of a subscription to the capital stock of that company by the county of Butler, Mo., which subscription was made under the authority of the state; that, in payment of certain bonds *issued by it, the railroad company, on the 23d of May, 1857, conveyed the lands in question, with other lands, to John Moore, John Wilson, and A. G. Waterman, as trustees; that in 1871 Chouteau, having become the owner of the great

er portion of such bonds, brought sult in the circuit court of Mississippi county, Mo., for the foreclosure of the above deed of trust. in which suit there was a decree for the defendants; that such decree was reversed by the supreme court of Missouri, and a de cree of foreclosure directed to be entered; that the lands were accordingly sold by a commissioner, Chouteau becoming the purchaser; and that afterwards, on the 19th day of November, 1886, Chouteau conveyed the same, with other lands, to the plaintiffs in

error.

The petition also alleged that the county of Butler, November 7, 1866, filed in the circuit court of Butler county its petition against the Cairo & Fulton Railroad Company, and Moore, Wilson, and Waterman, trustees as aforesaid, for the purpose of canceling and setting aside the patent from the state to the Cairo & Fulton Railroad Company, as well as the deed of trust from the railroad company to Moore, Wilson, and Waterman, trustees; that in that suit "service was attempted to be had by publication, the plaintiffs in said cause alleging that the said Moore, Waterman, and Wilson were nonresidents of the state of Missouri; that in the said proceeding the said Cairo & Fulton Railroad Company were brought in, as was But your pretended, by personal service. complainants herein here aver, charge, and show the fact to be that the service in said cause, the pretended appearance of the defendants by their attorney and in their own proper persons, was in fact a fraud and deception imposed upon the circuit court trying said cause; that in truth and in fact the said Waterman, previous to the bringing of said action in said circuit court, and said Moore, soon after the bringing of said action, and before service upon him therein had been obtained, had departed this life, and their successors in said trust, and as trustees, had been appointed in pursuance to the provisions of the said deed of trust; that in consequence of their said deaths, and the appointment of their successors as such trustees, as aforesaid, no service was had in said* cause, the new trustees were not made parties, were not served with process, and had no notice of proceedings, although necessary and proper parties; the other defendant in said cause, viz. the said Cairo & Fulton Railroad Company, was not a necessary or proper party, as by the foreclosure of the state lien on said railroad, under what is known as the 'Sell-Out Act,' and the purchase of said railroad under said sale, the said company, before the commencement of said suit, was dissolved and had ceased to exist, and could not legally be made a party to said proceedings; that the only party defendant to said proceedings that was in fact present or pretending to make a defense in said action was Green L. Poplin, who had at one time been the president of the said railroad company, but long previous to the bringing

record for its determination:

"First. Were the subscriptions by the county courts (county and district) of Butler county to the stock of the Cairo & Fulton Railroad Company, and the conveyance of the swamp lands of that county to said railroad in satisfaction of said subscriptions, authorized by law? Second. Ought the decree of the circuit court of Butler county annulling the conveyance of said lands be set aside for the reasons urged by the plaintiffs, to wit-First, because procured by fraud; and, second, because two of the defendants named in it were dead at the time of its rendition, and the railroad company a dissolved corporation?"

Whether the subscriptions by the county court of Butler county to the stock of the railroad company, and the conveyance to that company, were valid, and whether the decree which the plaintiffs sought to have declared void was obtained by fraud, were questions of local law or practice, in respect of which the judgment of the state court was final.

The only remaining question was not otherwise raised than by the general allegation that the decree was rendered against dead persons, as well as in the absence of necessary parties, who had no notice of the suit, and therefore no opportunity to be heard in vindication of their rights. Do such general allegations meet the statutory requirement that the final judgment of a state court may be re-examined here if it denies some title, right, privilege, or immunity "specially set up or claimed" under the constitution or authority of the United States? We think not. The specific contention now is that the decree of the Butler county circuit court in the suit instituted by the county of Butler was not consistent with the due process of law required by the fourteenth amendment of the constitution of the United States. But can it be said that the plaintiffs specially set up or claimed the protection of that amendment against the operation of that decree by simply averring-without referring to the constitution, or even adopting its phraseology-that the decree was passed against deceased persons, as well as in the absence of necessary or indispensable parties?

This question must receive a negative answer, if due effect be given to the words "specially set up or claimed" in section 709 of the Revised Statutes. These words were in the twenty-fifth section of the judiciary act of 1789 (1 Stat. 85), and were inserted in order that the revisory power of this court should not extend to rights denied by the final judgment of the highest court of a state, unless the party claiming such rights plainly and distinctly indicated, before the state court disposed of the case, that they were claimed under the constitution, treaties, or statutes of the United States. The words "specially set up or claimed" imply that if a party intends to invoke for the protection of his rights the constitution of the United States, or some treaty, statute, commission, or authority of the United States,

he must so declare; and, unless he does so declare "specially" (that is, unmistakably), this court is without authority to re-examine the final judgment of the state court. This statutory requirement is not met if such declaration is so general in its character that the purpose of the party to assert a federal right is left to mere inference. It is the settled doctrine of this court that the jurisdiction of the circuit courts of the United States must appear affirmatively from the record, and that it is not sufficient that it may be inferred argumentatively from the facts stated. Hence the averment that a party resides in a particular state does not import that he is a citizen of that state. Brown v. Keene, 8 Pet. 115; Robertson v. Cease, 97 U. S. 646, 649. Upon like grounds the jurisdiction of this court to re-examine the final judgment of a state court cannot arise from mere inference, but only from averments so distinct and positive as to place it beyond question that the party bringing a case here from such court intended to assert a federal right.

As the argument at the bar indicated some misapprehension as to our decisions upon this subject, it will be appropriate to refer to some of them.

In Maxwell v. Newbold, 18 How. 511, 516, which was a writ of error to the supreme court of Michigan, this court, speaking by Chief Justice Taney, and referring to the twenty-fifth section of the judiciary act of 1789, and the interpretation placed upon it in Crowell v. Randall, 10 Pet. 368, said: "Applying this principle to the case before us, the writ of error cannot be maintained. The questions raised and decided in the state circuit court point altogether for their solution to the laws of the state, and make no reference whatever to the constitution or laws of the United States. Undoubtedly, this did not preclude the plaintiffs in error from raising the point in the supreme court of the state, if it was involved in the case as presented to that court. And whether a writ of error from this court will lie or not depends upon the questions raised and decided in that court. But neither of the questions made there by the errors assigned refer in any manner to the constitution or laws of the United States, except the third, and the language of that is too general and indefinite to come within the provisions of the act of congress, or the decisions of this court. It alleges that the charge of the court was against, and in conflict with, the constitution and laws of the United States. But what right did he claim under the constitution of the United States which was denied him by the state court? Under what clause of the constitution did he make his claim? And what right did he claim under an act of congress? And under what act, in the wide range of our statutes, did he claim it? The record does not show; nor can this court undertake to determine tha

B

the question as to the faith and credit due to the record and judicial proceedings in Ohio was made or determined in the state court, or that that court ever gave any opinion on the question. For aught that appears in the record, some other clause in the constitution, or some law of congress, may have been relied on, and the mind of the court never called to the clause of the constitution now assigned as error in this court." After stating the grounds upon which the decision in Lawler v. Walker, 14 How. 149, were placed, the court proceeded: "So in the case before us the clause in the constitution and the law of congress should have been specified by the plaintiffs in error in the state court, in order that this court might see what was the right claimed by them, and whether it was denied to them by the decision of the state court."

In Hoyt v. Sheldon, 1 Black, 518, 521 (a writ of error to review the final judgment of a New York court), it was contended that full faith and credit was not given by that court to certain legislative enactments and judicial proceedings in the courts of New Jersey, as required by the constitution of the United States. This court, again speaking by Chief Justice Taney, said: "But, in order to give this court the power to revise the judgment of the state court on that ground, it must appear upon the transcript filed by the plaintiff in error that the point on which he relies was made in the New York court, and decided against him, and that this section of the constitution was brought to the notice of the state court, and the right which he now claims here claimed under it. The rule upon this subject is clearly and fully stated in 18 How. 515 (Maxwell v. Newbold), as well as in many other cases to which it is unnecessary to refer. This provision of the constitution is not referred to in the plaintiff's bill of complaint in the state court, nor in any of the proceedings there had. It is true, he set out the act of the legislature of New Jersey, the proceedings and decree of the chancery court of that state under it, and the sale of the property in dispute by the authority of the court, which he alleges transferred the title to the vendee under whom he claims, and charges that the assignment set up by the defendants was fraudulent and void, for the reasons stated in his bill. But all of the matters put in issue by the bill and answers, and decided by the state court, were questions which depended for their decision upon principles of law and equity, as recognized and administered in the state of New York, and without reference to the construction or effect of any provision in the constitution, or any act of congress. This court has no appellate power over the judgment of a state court pronounced in such a controversy, and this writ of error must therefore be dismissed for want of jurisdiction."

If there has been any modification of the

views expressed in the two cases just cited, it has been only in the particular that it is not always necessary to refer to the precise words or to the particular section of the constitution under which some right, title, privilege, or immunity is claimed, and that it is sufficient if it appears affirmatively from the record that a right, title, privilege, or immunity is specially set up or claimed under that instrument, or under the authority of the United States.

The question was again examined in Sayward v. Denny, 158 U. S. 180, 183, 184, 186, 15 Sup. Ct. 777-779. It was stated in that case (the chief justice delivering the opinion of the court) that certain propositions must be regarded as settled, among which were that "the title, right, privilege, or immunity must be specially set up and claimed at the proper time and in the proper way," and that "the right on which the party relies must have been called to the attention of the court in some proper way, and the decision of the court must have been against the right claimed,"-citing in support of the first of these propositions Miller v. Texas, 153 U. S. 535, 14 Sup. Ct. 874, and Morrison v. Watson, 154 U. S. 111, 115, 14 Sup. Ct. 995, and in support of the second proposition the above cases of Hoyt v. Sheldon and Maxwell v. Newbold. The chief justice said: "The contention is that the result of the rulings and decisions of the trial court in these respects, as affirmed by the supreme court, was to hold plaintiff in error conclusively bound by the judgment rendered against Crawford in an action in which he was not a party, and of which he had no notice,' and that this was, in effect, to deprive him of his property without due process of law, or to deny him the equal protection of the laws, and amounted to a decision adverse to the right, privilege, or immunity of plaintiff in error, under the constitution, of being protected from such deprivation or denial. But it nowhere affirmatively appears from the record that such a right was set up or claimed in the trial court when the demurrer to the complaint was overruled, or evidence admitted or excluded, or instructions given or refused, or in the supreme court in disposing of the rulings below. We are not called on to revise these views of the principles of general law considered applicable to the case in hand. It is enough that there is nothing in the record to indicate that the state courts were led to suppose that plaintiff in error claimed protection under the constitution of the United States from the several rulings, or to suspect that each ruling, as made, involved a decision against a right specially set up under that instrument."

In harmony with these views, we said at the present term, in Chicago & N. W. Ry. Co. v. Chicago, 164 U. S. 454, 457, 17 Sup. Ct. 129: "It is assigned in this court for error that the judgment of the court of original jurisdiction had the effect to deprive the rail