usually made by well-regulated railroads operating in Pennsylvania. and Ohio while a car is in transit. The officers in charge of the inspection of cars on a number of such railroads were witnesses, and they testified, without exception, that a visual inspection of the brake. rod when in place is all that is ever made while the car is in use, and that to strip the brake rod or remove it from its place, so that every part might be open to the eye, is impracticable; for, if ordinary care require such an examination of the brake rod, it would require a similar examination of every rod, chain, or iron used on the car, which would cause such delay as seriously to cripple the operation of trains. There was some testimony to the effect that, if the inspector had set the brake hard enough before the accident, he might have disclosed the defect by breaking the rod himself. This seems obvious, but there was no testimony that such a method of testing brake rods was in use or could be relied upon as effective in disclosing such defects. Such being substantially the state of the testimony, the court below directed a verdict for the defendant.

The plaintiff in error contends that the case should have gone to the jury for two reasons: First, because the Ohio act of April 2, 1890, applied, making a prima facie case in favor of the plaintiff; and, second, because, in view of the evidence, the question should have been submitted to the jury whether there had been a proper inspection of the brake rod. Section 1 of the act of April 2, 1890 (87 Ohio Laws, p. 149), contains certain regulations for the protection of railroad employés, which are made applicable to any company operating a railroad in whole or in part in Ohio, and section 2 provides that it shall be unlawful for

"Any such corporation to knowingly or negligently use or operate * any car or locomotive on which the machinery or attachments thereto belonging are in any manner defective. If an employé of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, * * * such corporation shall be deemed to have had knowledge of such defect before and at the time such injury was so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employé, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation."

It is submitted on the authority of Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N. E. 768, 31 L. R. A. 651, 56 Am. St. Rep. 695, that the presumption of knowledge and negligence provided by this section applies in the trial in Ohio of every action by an employé against a railroad company on account of injuries caused by defective machinery or appliances where a part of the railroad is in Ohio, although the cause of action arose outside of Ohio, and the plaintiff is a citizen of another state; the contention being that the section is remedial merely, providing a rule of evidence, applicable in the trial of all such actions in Ohio, regardless of where the cause arose, or the citizenship of the plaintiff.

On the other hand, it is urged that since the McCann Case was determined by a divided court, three judges concurring in the opinion,

two dissenting, and one not sitting, the decision does not represent a settled and conclusive construction of the statute, so as to be binding upon this court; and we are urged to consider and determine for ourselves the construction and application of this law in the particular mentioned. We have repeatedly recognized the rule that the construction of a statute of a state ought to be determined by the highest court of the state, and such construction followed by the courts of the United States. It is not necessary, however, either to determine the authority of the McCann Case or the construction and application. of this Ohio law, for, as we view the matter, whether the law be applicable or not, the result is the same. This statute provides that, where an employé receives an injury by reason of a defective appliance, the railroad company shall be deemed to have had knowledge of the defect, and when the fact of such defect shall be made to appear in the trial the same shall be prima facie evidence of negligence on the part of the company. In other words, knowledge of a proven defect is presumed, so that proof of the defect makes a prima facie case of negligence against the company. Obviously, the reason of the rule rests in the duty of a railroad company to provide reasonably safe machinery and appliances for the use of its employés. If a defect exists in the same, the company must know of it, if by a proper inspection, through the exercise of ordinary care, such knowledge may be obtained.

Of course, the presumption of knowledge is but a presumption. It is not conclusive. The prima facie case based upon it does not shift the burden of proof so as to compel the company to satisfy the jury by a preponderance of the evidence that it was not negligent. All that is required to overcome the prima facie case is a degree of proof which will counterbalance the presumption; the burden of establishing negligence still resting upon the plaintiff. Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 77 N. E. 752; T., St. L. & W. R. R. Co. v. Star Flouring Mills Co., 146 Fed. 953. In the present case it was sufficient for the railway company to show that it had used ordinary care by making an actual and proper inspection of the appliance and yet failed to discover the defect. Railway Co. v. Erick, 51 Ohio St. 146, 162, 37 N. E. 128; Felton v. Bullard, 94 Fed. 781, 37 C. C. A. 1, 4; Ill. Cent. R. R. Co. v. Coughlin, 132 Fed. 801, 65 C. C. A. 101.

But it is urged that, since the visual inspection employed did not disclose the defect, it was not a proper inspection, and that, in view of the dispute upon this point, the jury should have been permitted to decide whether it was or not. The box car on which the rod broke was in course of transportation, and there is no question but that the inspection made was all that is customarily made by well-regulated and prudently conducted railroads. Against such an inspection, the defect was latent, undiscoverable. We think it would be going too far to say that, because the inspection did not disclose the defect, it was not a proper one and ordinary care required something more. Ordinary care does not require an impracticable inspection, one which will cripple and embarrass a railroad company in the operation of its

trains. Ill. Cent. R. R. Co. v. Coughlin, 132 Fed. 801, 65 C. C. A. 101; Labatt, Master & Servant, § 162; Louisville, etc., R. R. Co. v. Bates, 146 Ind. 564, 45 N. E. 108; L. & N. R. R. Co. v. Campbell, 97 Ala. 147, 12 South. 574; Campbell v. L. & N. R. R. Co., 109 Ala. 520, 19 South. 975; De Graff v. N. Y. C. & H. R. R. Co., 76 N. Y. 125; Read v. N. Y., N. H. & H. R. R. Co., 20 R. I. 209, 37 Atl. 947; Kramer v. Willy, 109 Wis. 602, 85 N. W. 499.

There was no testimony whatever tending to show that there was any practicable method of inspection of this car while in use which would have disclosed the defect in the brake rod. The court could not have properly permitted the jury to indulge in mere speculation, finding the railroad company guilty of negligence, because, although it used the ordinary method of inspection, it did not use this method suggested by one person or that method suggested by another, when. there was an utter lack of testimony showing or tending to show that either had ever been used by any prudently conducted company, or, if used, would prove effectual.

The judgment is affirmed.

CRAWFORD v. McCARTHY.

(Circuit Court of Appeals, Seventh Circuit. October 2, 1906.)
No. 1,240.

COURTS-SUPREME COURT AND CIRCUIT COURT OF APPEALS JURISDICTION.

Where a demurrer to a bill in a circuit court assigned as grounds want of jurisdiction in the court as a federal court, because neither diversity of citizenship nor any federal question was disclosed, and also want of "jurisdiction" as a court of equity for lack of equity in the bill, a decree sustaining the demurrer and dismissing the bill "for want of jurisdiction" must be construed to refer to the real jurisdictional grounds, and an appeal therefrom lies to the Supreme Court, and not to the Circuit Court of Appeals, under sections 5 and 6 of Act March 3, 1891, c. 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549].

[Ed. Note.-Jurisdiction of Circuit Court of Appeals in general, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6, and United States Freehold Land & Immigration Co. v. Gallegos, 32 C. C. A. 475.]

Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

On motion to dismiss appeal.

On November 7, 1905, appellant filed his bill of complaint in the office of the clerk of the Circuit Court. A subpoena was issued and served upon appellee, who in due time appeared and demurred to the bill. The demurrer was sustained, appellant refused to amend, and the court entered a decree that "said bill be and the same is hereby dismissed for want of jurisdiction." Appellee has filed a motion to dismiss on the ground that this court has no jurisdiction to entertain the appeal.

The bill, in outline, averred that in April, 1903, on a creditors' bill filed by the Guaranty Trust Company of New York, the Circuit Court for the Northern District of Illinois appointed receivers of the property of the Chicago Union/ Traction Company; that the receivers took and now hold possession; that the suit is pending, undetermined; that in July, 1903, on petition of the Guaranty Trust Company, the Circuit Court entered a decretal order authorizing the

receivers to audit claims against the traction company and on each valid claim to issue a certificate that the claim had been audited and approved, and that the lawful holder thereof was entitled to share in the distribution on an equality with the Guaranty Trust Company; that complainant Crawford was a creditor of the traction company; that in July, 1905, the receivers audited and approved his claim and issued to him their certificate; that he has always been and is now the owner of the certificate and of the claim on which it was founded; that about September 1, 1905, he employed Whipple & Co., Chicago brokers, to sell the certificate for him at a designated price, and for that purpose delivered to them the certificate assigned in blank; that the brokers failed to sell, and on October 9, 1905, he demanded the return of his certificate; that the brokers made false excuses, and on October 13, 1905, were adjudged bankrupts; that in August, 1905, defendant, McCarthy, had employed Whipple & Co. to purchase for him certain stocks and gave them the money to pay therefor; that the brokers embezzled the money, but reported to McCarthy that they had filled his order; that, being pressed by McCarthy for delivery of the stock, they turned over to him Crawford's certificate to hold until they should produce the stock; that this transaction was not in the usual course of business, but was an unauthorized and fraudulent bailment of the certificate in connection with the past due debt of the brokers to McCarthy; that, after the brokers' bankruptcy, McCarthy, with express notice of Crawford's rights, filled in the blank assignment so that it falsely declared that Crawford had transferred the certificate to McCarthy; that Crawford has demanded the return of the certificate, and McCarthy refuses to surrender it. The prayer was that the pretended assignment be canceled, that complainant be declared the lawful owner of the certificate, that possession be awarded him, that McCarthy be enjoined until the final hearing from selling or in any way disposing of the certificate.

The grounds of demurrer were stated as follows:

"First. That this court as a federal court has no jurisdiction of this controversy, because it does not appear therefrom that there is any diversity of citizenship between the plaintiff and the defendant.

"Second. That this court as a federal court has no jurisdiction of this controversy as an ancillary suit, because it does not appear that the subjectmatter of this suit is the same as the subject-matter of the suit to which the plaintiff claims in his bill of complaint that this suit is ancillary.

"Third. That this court as a federal court has no jurisdiction of this controversy as an ancillary suit, because it does not appear from the bill of complaint that the defendant denies or in any manner questions the validity or authority of any act performed by any court of the United States or by any receiver or other officer or agent of any United States court; but, on the contrary, it affirmatively appears from the bill of complaint that this defendant, as well as the plaintiff, asserts the validity of all the acts of the United States court, the officers thereof, and the certificate issued by the receivers thereof, and the only controversy is as to the title of said certificate depending upon transactions occurring between two citizens of this state wholly within this state and wholly outside of the controversy involved in the suit in the United States court to which plaintiff in his bill of complaint claims that this suit is ancillary.

"Fourth. That this court as a federal court has no jurisdiction of this controversy, because the bill of complaint does not show that the controversy arises out of any construction of the Constitution or laws of the United States, or of any act done by any of its officers.

"Fifth. That this court as a court of equity has no jurisdiction of this controversy, because the plaintiff has a complete remedy in the premises by possessory action or action of trover in a court of common law.

"Sixth. That this court as a court of equity has no jurisdiction of this controversy, because all the questions arising upon the bill of complaint concern purely legal titles, upon which defendant is entitled to a trial by jury.

"Seventh. The bill of complaint shows no equity in favor of plaintiff against this defendant."

Charles H. Aldrich, for appellant.

Jule F. Brower, for appellee.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

BAKER, Circuit Judge, having stated the case as above, delivered the opinion of the court.

By section 6 of the organic act (Act March 3, 1891, 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549]) the Circuit Courts of Appeals are given jurisdiction to entertain "all cases other than those provided for in the preceding section." Cases in which the right of immediate review is conferred upon the Supreme Court by section 5 (26 Stat. 827 [U. S. Comp. St. 1901, p. 549]) include those "in which the jurisdiction of the (trial) court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

The latter part of the provision refers only to the way in which the record must be gotten up in order that the case in the Supreme Court may withstand a motion to dismiss for informality. Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398; Excelsior Co. v. Pacific Bridge Co., 185 U. S. 282, 22 Sup. Ct. 681, 46 L. Ed. 910. Except in cases where the question is whether the trial court ever obtained jurisdiction of the defendant by proper process (Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 25 Sud. Ct. 740, 49 L. Ed. 1111), the word "jurisdiction" in section 5 is interpreted to refer exclusively to the jurisdiction of the trial court as a court of the United States a court sharply restricted both as to persons and as to subject-matters. Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398; Bache v. Hunt, 193 U. S. 525, 24 Sup. Ct. 547, 48 L. Ed. 774; Louisville Trust Co. v. Knott, 191 U. S. 225, 24 Sup. Ct. 119, 48 L. Ed. 159; Blythe v. Hinckley, 173 U. S. 501, 19 Sup. Ct. 497, 43 L. Ed. 783; Smith v. McKay, 161 U. S. 355, 16 Sup. Ct. 490, 40 L. Ed. 731.

In the case at bar the defendant by his first four grounds of demurrer asserted that the bill, by its averments and omissions, showed that the court as a federal court was without jurisdiction, because no federal question was involved, because the nonfederal controversy was between citizens of the same state, and because the nonfederal controversy could not be created a handmaiden of the suit of the trust company against the traction company simply by labeling the bill "ancillary." This challenge required consideration, and, if the court deemed it well founded, it was the court's duty to dismiss the bill "for want of jurisdiction."

Of course, if the court believed that the challenge of its jurisdiction as a federal court was not sustained, it was the court's duty, under the remaining grounds of demurrer, to proceed and determine whether the bill stated a case requiring or justifying its interposition. Now, because the fifth and sixth causes of demurrer also mention "jurisdiction," the motion to dismiss is resisted on the contention that the decree is ambiguous, that it cannot be told therefrom for what want of jurisdiction the bill was dismissed. Even so, it remains true that