having been regularly called in its order for hearing. The burden of proof is on the party making the allegations of the plea. As she has no testimony, necessarily, her plea is not supported. The plea must, therefore, be overruled on that ground, there being no testimony to support it. These are the points that are submitted for decisI call attention to the other question, also, to show, what must be the result as to the first plea on the ground of duplicity. The real points in the case, as now submitted, are, that there is no evidence in the case to support the second plea, consequently, the affirmative being on the party pleading the matter to the jurisdiction, the plea must be overruled for want of evidence, and the other plea in abatement is bad in substance. The plea is, therefore, overruled with costs, with leave to answer to the merits within thirty days.

MCFADDEN ET AL. v. ROBINSON ET AL.

October 20, 1884.

REMOVAL CONTESTED QUESTION OF LAW.-Where a case has been removed to the Circuit Court under the act of Congress of 1875, on the ground that the suit arose under the constitution, or laws of the United States, it will be remanded to the State Court, unless it affirmatively appears from the facts alleged in the record, that some contested question of law will arise, upon the constitution, or laws of the United States.

MOTION to remand to the State Court, whence the case was removed under the act of 1875.

A. L. Rhodes for the complainants.

Wm. Matthews for the defendants.

SAWYER, CIRCUIT JUDGE.-The suit is in equity, to quiet title to a tract of land which is covered by two patents, issued upon confirmations of two Spanish grants, one for the Santa Ana Rancho, and the other for the Las Bolsas Rancho.

The petition for removal states as follows: That the action arises under the act of March 3, 1851, and under the treaty of Guadalupe Hidalgo; that the claim of plaintiff is based on a right and title which originated under Spain, while California was a province of Spain, and, also, upon an expediente made by the authorities of Mexico, while California was a part of the domain of the Republic of Mexico; that the grant was presented by Bernardo Yorba to the tribunals of the United States for confirmation, under the act of 1851; that the claim was, subsequently, confirmed, and a patent issued upon the confirmation, December 21, 1883; that the patent includes all the land in controversy; that the complainants have acquired, and they now hold, all the title to the land in controversy, which passed by said Spanish and Mexican titles, and said patent; and that they now claim the same under said title, and under no other title; that the defendants are owners in fee of the lands in controversy; that

their rights arise under a title granted by Spain, and a further grant by Mexico, while California was still a part of the domain of those countries, respectively; that the title is other and different from that held by complainants; that the title was held in 1852 by Ramon Yorba, et al.; that, in that year, it was presented to the Board of Land Commissioners for confirmation, and was afterward, finally confirmed; that patents thereto were issued, as follows: for one undivided half to Ramon Yorba, et al., on June 9, 1874, and the other half to Justo Murillo, et al., August 27, 1877; that defendants hold all the title passing by both these last-named patents, and they hold no other title; and that the matter in dispute depends upon, and will be determined by, the weight and force in law of the respective patents, and titles therefrom derived, held, as aforesaid, by complainants and defendants.

The case as stated in the petition for removal, in my judgment, does not appear to present any disputed question of law arising under the constitution, or laws of the United States. So far as appears, neither party questions the right of the Spanish and Mexican governments to make either grant-either the grant under which the complainants claim, or that under which the defendants claim. Neither party appears to question the right of the grantees of either grant to the protection accorded by the treaty. Both parties rely upon the binding and obligatory force, and effect, of the treaty. Neither party denies the validity of the act of March 8, 1851. Neither party denies to the other any right claimed under that act. Neither party gives a different construction to the act, or any of its provisions, from that claimed by the other. Neither party denies the validity of the proceedings of the other for a confirmation of the title under which they claim. Nor the correctness of the survey. Nor of the patent.

In respect to the above matters, there does not appear to be any contested question of law arising under the constitution, or laws of the United States in the case. The only question in the case seems to be this: Conceding that both parties had grants of tracts of land; that each grant was confirmed; that a patent issued for each rancho as confirmed; and that the tract in controversy in this case is covered by grants and patents-which party acquired the title to the tract in controversy? And that depends upon which, in fact, acquired the oldest effective grant? That question is to be determined by an examination of the proceedings of the Spanish and Mexican governments in making the inchoate grants to the respective parties, and upon the subsequent acts of the parties, and Mexican government under the grants, and before the cession of California to the United States; or upon the facts and laws of Mexico, in force in California before its acquisition by the United States. It should affirmatively appear, that there will arise some contested point of law depending upon the constitution, or laws of the United States, and what the question is. Nothing of the kind affirmatively appears in the petition or records. It appears to me that this case falls

within the rule adopted in Trafton v. Nougues, 4 Saw., 178, substantially affirmed by the United States supreme court in Gold Washing Co. v. Keyes, 96 U. S., 199, and within the case of Romie v. Casanova, 91 U. S., 379, also McStay v. Friedman, 92 U. S., 723-4.

The cases cited by defendants do not appear to me, to conflict with the doctrine of those cases. In Hills v. Houston, 4 Saw., 198, the whole case turned upon a disputed construction of the two patents. There was, clearly, a contested question of law, arising under the constitution, and laws of the United States. The other cases do not appear to determine, or discuss, any question arising in this case. It is not enough that a question may, possibly, arise under the constitution, and laws of the United States. It should be made to appear from the facts stated, that such a question will arise, and, what the question is, and how it will arise. Should one arise in the course of the trial in the state court, the ruling of the state court may still be reviewed by the United States supreme court, on writ of error in favor of the party against whom the ruling is made.

Upon the views expressed, the case must be remanded to the state court, and it is so ordered.

CIRCUIT COURT, DISTRICT OF COLORADO.

O'RORKE v. UNION PACIFIC RAILWAY COMPANY.
October 8, 1884.

NEGLIGENCE-WORK DANGEROUS IN ITSELF-MASTER AND SERVANT.-A railroad company whenever it calls upon an employee to perform work under dangerous conditions, is bound to provide him with the ordinary means of protection, and its failure so to do is negligence, unless the right to have such means of protection furnished has been waived by the employee.

THE SAME ASSUMPTION OF RISK BY EMPLOYEE.-Where an employee has been accustomed to do such work, day after day, for several months, knowing the same to be dangerous, but without making complaint or demanding the ordinary means of protection, it must be presumed that he assumed the risks of his employment, and if he is injured therein, the company is not liable.

MOTION for a new trial. The opinion states the facts.

Markham, Patterson & Thomas, for the plaintiff.

Teller & Orohood, for the defendant.

BREWER, CIRCUIT JUDGE. In No. 1,176, Michael O'Rorke v. The Union Pacific Railway Company, a motion was made for a new trial. It was an action for personal damages, and a verdict was found for the plaintiff. The substantial facts are these: This plaintiff was a car repairer, engaged in repairing cars along the line of the defendant's road. On the day of the accident, he went to the station at Malta, I believe, and found there three cars standing on a side track with a freight train on the main line. The conductor of the freight

train told him that the rear car of the three side-tracked cars needed repairing, and that he should wait there about twenty minutes, which would be time enough to do the work. He went under the car to repair it, and while there parties in charge of the freight train switched a car on to the side track, which started the other cars on the track, and they pushed the car under which he was at work, moving it some few feet, and injuring him. He had no red flag out with which to signal to the engineer, and no assistant to notify parties moving the train that he was at work under the car, and the engineer, moving the train, did not know there was anyone under the car. He had no reason to suppose that anyone was under it, and switched off his freight car on to the side track without any knowledge, or reason to believe there was any danger in so doing.

Indeed, so far as the action of the engineer is concerned, no negligence can be affirmed in his conduct; the complaint is that the railroad company was negligent in not furnishing to one engaged in that business, and necessarily compelled to go under cars, and liable to be there injured, a red flag, which he might station out as a signal, or furnish him with an assistant, to give notice of his position, and that the railroad company was negligent in not so doing. I have no question, whenever they call upon an employee to go into such a position as that, I think it is their duty to provide him with the ordinary means of protection, which, we are informed by the testimony, is a red flag. It cannot be expected that an engineer, in switching cars, can send a man forward to see whether or not some one is under any car, and the red flag, being the ordinary signal of danger, should have been furnished to this man.

But the troublesome question lies back of that. This plaintiff was an old railroad man, fully aware of the dangers of such work as he was then engaged upon; he had been employed on this road, in such work, for seven or eight months, and was in the habit of going under cars under just such circumstances. He had no flag, and he asked for none. Now, the railroad company insists that he waives his right to recover for any injury received in consequence of that fact. This doctrine of waiver, upon which the company relies, is a doctrine which has been developed within the last few years. It has been carried by some courts to a dangerous extent, one which, I think, cannot be finally sustained.

It has been said, and I think there is force in it, that there is really no such thing as a separate and distinct defense of waiver, and that what is called waiver is simply one form of "contributory negligence;" that the difference between waiver and contributory negligence, is the difference between passive and active negligence, and that what is meant by waiver is passive negligence, in omitting to do a thing which the employee ought to have done; and, in this case, it would be said that the plaintiff omitted to call for a flag,omitted to take precautions which he ought to have taken,-and that is nothing more or less than passive negligence.

As I said, this doctrine of waiver has been carried by some courts to a great extent. They have affirmed that an employee, whenever he finds suitable precautions have not been taken for his safety, ought to stop at once, and if he continues on, he assumes all the risks. I don't think that can be held to be law.

A case was presented to me in Des Moines, last spring, where that claim was very urgently pressed by the railroad company. In that case, a common laborer, who had been employed for some time as a section hand, was, on this particular day, employed to load railroad iron. It appeared that the railroad company had substituted steel rails for iron rails, and simply thrown the iron rails to one side, and then sent a train along to pick them up. The train was constantly in motion, at first, at a low rate of speed; as two rival gangs, one on each side of the train, worked together, and became more interested in their work, and worked more quickly the train moved more rapidly; finally, a flat car, having been loaded too high, and the sides having been insufficiently protected, a rail which was thrown on fell off, and this laborer was caught and hurt, and the company tried to insist upon the doctrine of waiver. That this man had been working all the day, the accident happening about two or three o'clock in the afternoon; that he was willing to do the work, and that he waived his right to compensation in view of that fact; he saw the danger he was in, and, seeing it, continued to work.

I held that the company was liable. I don't think that the urgency can be forced upon an employee so quickly as that for deciding that he cannot be called upon at the instant to stop work if he sees there is danger. Suppose an engineer, running a train between the point of departure and the point of terminus, finds that his engine is out of order, can he stop right here and say he will stop until the injury is mended?

It would not be safe to do this; he must carry the defective engine to its point of destination. No other rule would be safe. And so, generally, a man cannot be called upon, at the moment to say, there is a defect, or there is danger, and I will stop; he has a right to wait a reasonable time; to consider the circumstances of the case, and to give notice to his employers that he is in danger; time enough to see whether the employer means to have the defect remedied; time enough to see the general way in which he conducts his business; and if he finds that his employer intends to use machinery with defects, or to conduct his work in a dangerous manner; finds that is to be his habit, finds that, after he has been notified, he still intends to conduct his business in that way, and then goes on and continues in the work, it is fair to assume that he takes the risks; of course, there can be no question, where it is expressly agreed upon.

Suppose, for instance, that I own a mill; suppose the machinery in it is clearly defective, and I say to an employee, "I am running a mill, in which there is defective machinery," and I point out to him the defect, "are you willing to work here and take the risks?"