The representative. [volume] (St. Paul, Minn.) 1893-1901, 1893-05-17

mas been adhered to ever since.
There railroad company mad placed
an engineer in its employ under the
control of conductor OF one of its
trains. who directed when the cars were
to start and when to stop, and it was
held liable for an injury received byl
him caused by the negligences of the5
conductor. A collision had occurred
by reason of the omission of the CON-
ductOr 10 inform the engineer1
OF a change Of place ordered
in the passing of trains. The9
company claimed exemption from lia-1
bility on the ground that the engineerj
and conductor were fellow servants, and
that the engineer had assumed by his
contract the risk of the negligence Of
the conductor, and also that public poll
Icy forbade recovery in such D cases;
but the court rejected both positions.
In Railway Company vs.. Keary ~
same court
Affirmed the Doctrine
thus declared. and held that where .
brakeman in the employ OF . railroa4
company, on train under the control
of conductor having exclusive COM
mand. asinjured by the carelessness
OF the conductor. the company
was responsible. holding that the
tive of the company upon which
rested the obligation to manage the
train with skill and care. In its opinion
the court said no service was common.
that did not admit common participa-
ton, )and no servants were fellow
servants when one was placed in con-
troll over the other. In Berea Stone Com
pany VS.. Kraft 81 Ohio St, 2S7, decided
in 1887. that court held that master
Al for mi, fn Snr a.
sulting from the negligence of SUI
perior servant. The question is not
whether that is the bes law for Ohio,
but whether it is the law OF that state.
Attempts at Dictation.
The claim Of the majority of the court
that the decision of the courts of Ohio
in these liability cases are not to be re.
garded as the law of the state IN the
absence of statute is made ridiculous,
and the statement broadly made that o
disregard the decisions of the sta
courts is nothing less than an attempt IT,
control the state in manner in which the
state is not amenable to federal author
ity-a jurisdiction which federal judges.
it is claimed, never possessed, never
should possess. THAT doctrine, con-
times the dissenting opinion. "would
inevitably lead to a subversiOn Of the
Just authority of the state in many
matters of public concern. 1t
would also be in direct conflict
with section 72l of the Revised
Statutes, which declares that 1.-THE laws
OF the several states. except where the
constitution. treaties or statutes of the
United States other wise require or pro-
vide, shall be regarded as rules of de-
cisiOn in trials at common law n the
courts of the United States IN cases
where they apply" Continuing, the
opinion states:
The present case presents some sim
gular facts. The verdict and judgment
of the court below were in conformity
with the law of Ohio, in which state the
cause of action arose and the case was
tried. and this court reverses the judy
ment because rendered in accordance
with that law, and holds it TO have been
error that it was not rendered according
to some other law than that of Ohio,
which it terms the general law of tho
country. This court thus assumes the
right to disregard what the judicial au-
thorlties OF that state declare to be its
law. and to enforce upon the state
Some Other Conclusion
as law which it has never accepted as
such, but always repudiated. The fire
man, who was so dreadfuliy injured by
the collision caused by the negligence
of the conductor of the engine that his
right arm had to be amputated from the
shoulder. and his right leg was rendered
useless, could obtain some remedy from
the company by the law of Ohio. as
declared by its court, but this
court decides, in effect. that that
law, thus declared, shall not be
treated as its law, and that the
case shall be governed by some other
law which denies all remedy to him.
Had the case remained in the state
court, where the action was commenced,
of the law of Ohio. The defendant
asked to have the action removed, and
obtained the removal to federal court
because 1t is corporation of Maryland.
and thereby citizen OF that state by q
fiction adopted by this court that mem
bers OF corporation are presumed
to De citizens of the state whore
the corporation was created-a presump-
ton, which. in many cases, Is contrary
ment or evidence is held admissible for
the purpose of defeating the jurisdic-
ton of federal court. Thus in this
case foreign corporation, not a citizen
OF the state of Ohio. where the cause
OF action arose. is considered a
citizen of another state by a
fiction. and then. by what the
court terms the general law of the cOun-
try, but which the court held In
Wheaton vs. Peters has no existence in
tact. is given an immunity from liabil-
ity In cases not accorded to citizen of
that state under like circumstances.
Many will doubt the wisdom Of a system
which permits such vast difference in
the administration of justice for in
juries like those in this case, between
the courts of the state aud the courts of
the United States.
No General Law.
am aware that what has been
termed the general law Of the country
which is often little less than what
the judge advancing the doctrine thinks
at the time should be the general law
on particular snbJect-has been often
advanced in judicial opinions of this
court to control conflicting law of a
state. l admit that learned judges have
fallen into the habit Of repeating this
ing aside the law of state
in conflict with their views.
And l confess that, moved and
governed by the authority of the great
names of those judges. have, myself.
in many Instances. unhesitatingly and
confidently. but l think now errona-
ously, repeated the sa ne doctrine. But.
Notwithstanding the great names which
may be cited in favor of the doctrine.
and Notwithstanding the frequency with
which the doctrine has been reiterated.
there stands, as perpetual protest
against its repetition, the Constitution
of the United States, which recognizes
aud preserves the autonomy and
independence of the states-inde-
pendence in their legislative
and independence in their judicial do.