234 U.S.

Opinion of the Court.

said property by fire, unless such damage or destruction shall result directly and exclusively from their negligence or that of their employés, and unless such negligence shall be affirmatively established by the owner of said property."

In the Supreme Court of the State the carriers contended that, under the combined operation of the Carmack Amendment as interpreted in Adams Express Co. v. Croninger, 226 U. S. 491, the stipulations in the bills of lading, and the common-law rule applied in Railroad Co. v. Reeves, 10 Wall. 176, and other cases,' they were entitled to exoneration upon showing that the rice was destroyed by the extraordinary flood, unless it also was shown that the second carrier contributed to the loss by negligently failing to take reasonable precautions to avoid it when the rising waters gave warning of the danger; and it was particularly urged as a part of this contention that the burden was upon the plaintiff to show such negligence, and not upon the carriers to show the absence of it. But the court, although disapproving the latter phase of the contention and thinking the carriers were charged by the law of Louisiana with the burden of showing that there was no negligence, did not rest its judgment upon that ground. On the contrary, it examined the evidence, which comprehensively covered the subject, to ascertain whether, upon the hypothesis that the contention of the carriers was sound, they were liable, and from that examination it found as matter of fact that the second carrier had negligently permitted the cars of rice to remain within the influence of the rising flood and in immediate proximity to the quicklime when ordinary prudence required that they be moved to a place of safety; and that this was

1 Clark v. Barnwell, 12 How. 272, 280, 281, 283; Transportation Co. v. Downer, 11 Wall. 129, 133; Cau v. Texas & Pacific Railway Co., 194 U.S. 427, 432.

Opinion of the Court.

234 U.S.

made an independent ground of the judgment is shown by the court's extended discussion of the evidence and by the following excerpts from its opinion:

"A close reading of the evidence compels the conclusion that there was not sufficient forethought on the part of the officers in charge of the railroad yards. We have seen that the river was rising rapidly on the morning of the 26th of August. Some of the witnesses testified that by 7 o'clock it had covered the switch tracks, and yet nothing was done to protect property. Leisurely enough, the employés went about their business and gave very little concern to the rising waters. Those who did attempt to save property (if what they did can be considered in that light) displayed very little activity, beginning at 8 o'clock, taking out a few cars and leaving others in the Old Hamburg yards. That is all they did. These yards were submerged by water to a height above the floor of the cars. The question arises: Was it possible, before the waters reached their greatest height, to move the cars to a safer place than where they were hauled to on the morning of the 26th of August; that is, to the Old Hamburg yards? We have noted, before 8 o'clock or 8.30 o'clock a. m., not the least attempt was made to move the cars out of the yard where they had been placed. Mr. Benson, inspector of the Southern Railway Company, testified that on the morning of the 26th of August, he reported at the Hamburg yard at 7 o'clock to go to work, and at that time the water had just reached the rail in front of the block office. There were a crew and an engine in the yard. Why were they not put at work at that time to save the freight?

"Another witness, the night operator, renders it still more evident that it was possible to move the train in the morning, for he says that when he went to work the yard was entirely free from water on the 26th of August in the morning. An attempt was made to rescue the cars between 8 and half past 8 o'clock a. m. It failed. They

234 U. S.

Opinion of the Court.

went too late to rescue these cars. There had been ample time to save them. (132 Louisiana, p. 643.)

"These floods were frequent, and yet defendant remained indifferent, and even sent its cars to the lowest places on the yard, where they were permitted to remain without making a serious and timely attempt to take them away.

"From all this evidence we are led to the inference, which we think is positive, that there was negligence. A little timely activity would have brought about a different result, and would have saved plaintiff's property, or would have placed defendant in a position to successfully defend itself.

"Unquestionably the river was rising rapidly on the morning of the 26th at 7 o'clock; in 35 minutes it covered the switch tracks. It does not seem that anything was done to prevent the destruction of the cars. Leisurely enough, the employés went about their respective occupations, and now, when they give an account of themselves, it does seem as if they wish to lay all the trouble on the rising waters, although they remained indifferent when they should have exerted themselves (p. 645).

66 Admitting for a moment all that is claimed under the Carmack Amendment, under any of the laws of this country, indifferent railroad people, who receive freight to be transported some distance, and who, just before the waters of a storm have flowed down, stop the cars on the way, and run them to the lowest part of their yards, and place them next to cars loaded with quicklime, easily ignited by water, and leave them at that place while other cars are taken out, and who make no attempt to haul them out, although the waters are rising slowly enough for such work after warning given, are not protected from the charge of negligence under the law" (p. 649).

True, the testimony upon which the court rested its conclusion that negligence was proved did not come from the plaintiff's witnesses but from those for the carriers, and was largely elicited by cross-examination, but that is quite immaterial. The plaintiff was entitled to the benefit of all the testimony in the case, from whatever source it came, and was not required, even though having the burden of proof, to go through the ceremony of proving any fact otherwise established.

As it clearly appears that the judgment rested upon a ground which was not only adequate to sustain it but in entire harmony with the carrier's asserted Federal right, it cannot be said that there was a denial of that right in the sense contemplated by § 237 of the Judicial Code. Whether the right was well founded we therefore need not consider.

Writ of error dismissed.

WABASH RAILROAD COMPANY v. HAYES.

ERROR TO THE APPELLATE COURT OF ILLINOIS, FIRST

DISTRICT.

No. 843. Motion to dismiss submitted April 27, 1914. Decided May 25, 1914.

Plaintiff, an injured employé of an interstate common carrier by rail, sued for personal injury, alleging that he was employed in interstate commerce, and stating a good cause of action under the Federal Employers' Liability Act, if so employed, and, if not, under the state law; the defendant asked for an instruction that the proof did not show that the injury occurred in interstate commerce, which the court gave, and then, over defendant's objection, treated the allegation to that effect as eliminated from the declaration and submitted the case to the jury as one under the state law, and plaintiff

234 U. S.

Argument for Plaintiff in Error.

had a verdict. Held, that defendant having asked for the instruction that the case could not be maintained under the Federal act, was bound thereby, and, therefore, was denied no right under the Federal law by the action of the state court, and the writ of error must be dismissed.

Where the state court treats a mistaken allegation that the injury occurred in interstate commerce as eliminated, it merely gives effect to a rule of local practice and does not deprive defendant of any Federal right.

Quare, as to what the effect would be if the shift from a claim under the

Federal act to one under the state law cut the defendant off from presenting a defense open under the latter or deprived him of a right of removal.

Writ of error to review 180 Ill. App. 511, dismissed.

THE facts, which involve the jurisdiction of this court to review a judgment of the state court in an action by a railroad employé for personal injuries which did not occur in interstate commerce, are stated in the opinion.

Mr. James C. McShane for defendant in error in support of the motion.

Mr. J. L. Minnis, Mr. John M. Zane and Mr. Charles F. Morse for plaintiff in error, in opposition to the motion: A Federal question is here involved; the Federal right was claimed and denied in the state court.

This court has jurisdiction of this writ of error.

In support of these contentions, see Acardo v. N. Y. &c. T. Co., 116 App. Div. N. Y. 793; Adams v. Capital State Bank, 74 Mississippi, 307; Atkinson v. Bullard, 80 S. E. Rep. 220; Chambers v. Balt. & Ohio R. R. Co., 207 U. S. 142; C. & G. T. R. Co. v. Spurney, 197 Illinois, 471; Clark v. Southern Pacific Co., 175 Fed. Rep. 122; Consolidated Coal Co. v. Peers, 97 Ill. App. 188; Cound v. Atchison &c. Ry. Co., 173 Fed. Rep. 527; El Paso &c. R. R. Co. v. Gutierrez, 215 U. S. 87; Erie R. R. Co. v. Kennedy, 191 Fed. Rep. 332; Green Bay &c. Canal Co. v. Patten Paper Co., 172 U. S. 58;