BALTIMORE & O. S. W. R. CO. v. DAVIS, 149 F. 191

SEAMAN, Circuit Judge (after stating the facts). The questions raised by the various assignments of error are these:

(1) Is the proof sufficient to establish jurisdiction, resting on diversity of' citizenship ?

(2) Is the plaintiff chargeable under his testimony with contributory negligence as a conclusion of law?

(3) Whether error appears in the instructions to the jury covered by-exception. 1. The jurisdictional allegation in the declaration of citizenship on the part of the plaintiff is plainly defective, as it states that he is “a resident of the state of Illinois,” but does not state his place of citizenship.

In his testimony, however, preserved of record in a bill of exceptions, the plaintiff says, in reference to occurrences both before and after the commencement of the suit, that he was at “home” in Flora, Ill.; that “I live- there.” This proof is sufficient, under the authority of Sun Printing & Publishing Ass’n v. Edwards, 194 U. S. 377, 383, 24 Sup. Ct. 696, 48 L. Ed. 1027, to cure the defective averment.

In that case the question of jurisdiction was certified, under like incidental statement by the plaintiff that he “lived in Delaware” and his family were there, and the sufficiency was upheld, where the averment was alike defective. The declaration mentions the defendant as “a foreign corporation and nonresident of the state of Illinois,” so that diversity of citizenship appears, and the assignment for want of jurisdiction is overruled accordingly. 2.

On behalf of the defendant, instructions were requested directing a verdict of not guilty, on the theory that negligence on the part of the plaintiff conclusively appeared as contributory cause of the injury: and error is assigned for denial of the several motions to that end. We ax-e satisfied that the contention upon which they rest is untenable, and that the issue of contributory negligence was rightly submitted to the jury.

True, the facts were undisputed, but the inferences to be drawn from them — whether the plaintiff exercised ordinary care and prudence in attempting to make the coupling under the circumstances — were clearly within the province of the jury. Under the testimony, the effort of the brakeman to open the knuckle with one hand (as needful), while the other hand engaged the lever to raise the pin, is surely not conclusive of want of ordinary, care, when it appears that he was unaware of th.e broken chain, yvhich prevented action of the lever.

In so far as appears, the coupling would have been safely made, except for the defect referred tó, and the attempt was no departure from-the ordinary method, where j the knuckle .was either closed or not observed to be open. With the defendant chargeable with negligence for sending in the car with the broken chain, after opportunity for inspection and repair, and the plaintiff not chargeable with notice, but entitled to assume that it was in order, the* defendant is without ground for complaint in the submission.

So in respect of the contention that the broken chain was not the proximate cause of injury, we are of opinion that no error appears in the submission or instructions thereupon.' 3. The entire charge to the jury is preserved in the record, and error is assigned upon portions of the instructions as not fully stating the issues and the rule to be applied under the evidence. Reading the instructions as a whole, we are satisfied that each of these objections to the instruction is without merit.

All the issues were clearly defined and correctly submitted, as we believe, in the course of the charge; and if, the portions referred to omit repetition of all the elements to be considered, the context supplies it in clear terms, without room for misunderstanding upon either issue. No reversible error appears in the assignments, and the judgment of the Circuit Court is affirmed.