general and unwritten law of the country to control a State law, as expressed by its courts, in conflict with it, has the sanction of Congress by its supposed knowledge of the decisions of this court to that effect, and its subsequent silence respecting them, does not strike me as having any persuasive force. The silence of Congress against judicial encroachments upon the authority of the States cannot be held to estop them from asserting the sovereign rights reserved to them by the tenth amendment of the Constitution. Such silence can neither augment the power of the general government nor impair those of the States. Silence by one or both will not change the Constitution and convert the National government from one of delegated and limited powers, or dwarf the States into subservient dependencies. Acquiescence in or silence under unauthorized power can never give legality to its exercise under our form of government.

Marshall, when a member of the Virginia convention called to consider the question of the adoption of the Constitution of the United States, in answer to an inquiry as to the laws of what State a contract would be determined, answered: "By the laws of the State where the contract was made. According to those laws, and those only, can it be decided." 3 Elliott Deb. 556.

Judge Tucker, in the appendix to the first volume of his edition of Blackstone, says that the common law has been variously administered or adopted in the several States. Is the Federal judicial department to force upon these States views of the common law which their courts and people have repudiated? I cannot assent to the doctrine that there is an atmosphere of general law floating about all the States, not belonging to any of them, and of which the Federal judges are the especial possessors and guardians, to be applied by them to control judicial decisions of the State courts whenever they are in conflict with what those judges consider ought to be the law.

The present case presents some singular 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 judgment 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 the country. This court thus assumes the right to disregard what the judicial authorities 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 fireman, who was so dreadfully 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 courts, 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, the plaintiff would have had the benefit of the law of Ohio. The defendant asked to have the action removed, and obtained the removal to a Federal court because it is a corporation of Maryland, and thereby a citizen of that State by a fiction adopted by this court that members of a corporation are presumed to be citizens of the State where the corporation was created, a presumption which, in many cases, is contrary to the fact, but against which no averment or evidence is held admissible for the purpose of defeating the jurisdiction | of a Federal court. Railroad Co. v. Letson, 2 How. 497; Cowless v. Mercer Co., 7 Wall. 121; Paul v. Virginia, 8 id. 168-178; Steamship Co. v. Tugman, 106 U.

S. 120. Thus in this case a 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 country, but which this court held in Whea. ton v. Peters has no existence in fact, is given an immunity from liability in cases not accorded to a citizen of that State under like circumstances. Many will doubt the wisdom of a system which permits such a vast difference in the administration of justice for injuries like those in this case between the courts of the State and the courts of the United States.

I 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 a particular subject-bas been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that moved and governed by the authority of the great names of those judges, I have myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same 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 a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specially authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State, and to that extent a denial of its independence. As said by this court, speaking through Mr. Justice Nelson, "the general government and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its ap. propriate sphere is supreme; but the States, within the limits of their powers not granted, or, in the language of the tenth amendment, reserved,' are as independent of the general government as that government within its sphere is independent of the States." Collector v. Day, 11 Wall. 113, 124.

To this autonomy and independence of the States their legislation must be as free from coercion as if they were separated entirely from connection with the Union. There must also be the like freedom from coercion or supervision in the action of their judicial authorities. Upon all matters of cognizance by the States, over which power is not granted to the general government, the judiciary must be as free in its action as the courts of the United States are independent of the State courts in matters subject to Federal cognizance. "Such being the separate and independent condition of the States in our complex system, as recognized by the Constitution, and the existence of which is so indispensable that without them the general government itself would disappear from the family of nations, it would seem to follow," as said by the court in the case cited, "as a reasonable, if not a necessary, consequence, that the means and instrumentalities employed for carrying on the operations of their governments, for preserving their existence, and fulfilling the high and responsible duties assigned them in the Constitution, should be left free and impaired, should not be liable to be crippled, much less defeated, by the taxing power of another government," to which

we may add, nor by the supervision and action of another government in any form. "We have said," continues the court in the same case, "that one of the reserved powers was that to establish a judicial department; it would have been more accurate, and in accordance with the existing state of things at the time, to have said the power to maintain a judicial department. All of the thirteen States were in possession of this power, and had exercised it at the adoption of the Constitution; and it is not pretended that any grant of it to the general government is found in that instrument. It is therefore one of the sovereign powers vested in the States by their Constitutions, which remained unaltered and unimpaired, and in respect to which the State is as independent of the general government as that government is independent of the States."

Such being the nature of the judicial department, and the free exercise of its powers being essential to the independence of the States, how can it be said that its decisions as to the law of the State, upon a matter subject to its cognizance, can be ignored and set aside by the courts of the United States for the law or supposed law of another State or sovereignty, be it the general or special law of that State or sovereignty? If a Federal court exercises its duties within one of the States where the law on the subject under consideration is uncertain and unsettled, 'where," as Chief Justice Marshall said, "the State courts afford no light," it must, as we have already stated, exercise an independent judgment thereon, and pronounce such judgment as it deems just. But no foreign law, or law out of the State, whether general or special, or any conception of the court as to what the law ought to be, has any place for consideration where the law of the State in which the action is pending is settled and certain. A law of the State of that character, whether expressed in the form of a statute or in the decisions of the judicial department of the government, cannot be disregarded and overruled, and another law, or notion of what the law should be, substituted in its place, without a manifest usurpation by the Federal authorities. I cannot permit myself to believe that any such conclusion, when more fully examined, will ultimately be sustained by this court. I have an abiding faith that this, like other errors, will in the end "die among its worshippers."

The independence of the States, legislative and judicial, on all matters within their cognizance is as essential to the existence and harmonious workings of our Federal system as is the legislative and judicial supremacy of the Federal government in all matters of National concern. Nothing can be more disturbing and irritating to the States than an attempted enforcement upon its people of a supposed unwritten law of the United States, under the designation of the general law of the country, to which they have never assented, and which has no existence except in the brain of the Federal judges in their conceptions of what the law of the States should be on the subjects considered.

The theory upon which inferior courts of the United States take jurisdiction within the several States is, when a right is not claimed under the Constitution, laws or treaties of the United States, that they are bound to enforce, as between the parties, the law of the State. It was never supposed that upon matters arising within the States any law other than that of the State would be enforced, or that any attempt would be made to enforce any other law. It was never supposed that the law of the State would be enforced differently by the Federal courts sitting in the State and the State courts; that there could be one law when a suitor went into the State courts and another law when the suitor went into the Federal courts, in relation to a cause of action arising within

the State-a result which must necessarily follow if the law of the State can be disregarded upon any view which the Federal judge may take of what the law of the State ought to be rather than what it is.

As said by the Supreme Court of Pennsylvania at an early day-as far back as 1798-"the government of the United States forms a part of the government of each State." Respublica v. Cobbet, 3 Dall. 473. To which the same court, over a half century later, added: "It follows that its courts are the courts of each State; they administer justice according to the law of the State as construed and settled by its own supreme tribunal. This has been more than once solemnly determined by the Supreme Court of the Union to be the rule of their decision, whenever the construction of the Constitution of the United States, treaties or acts of Congress does not come in question." Com. v. Pittsburg & C. R. Co., 58 Penn. St. 44.

In Shelby v. Guy, 11 Wheat. 362, 365, this court, in considering the meaning to be given to the words "beyond the seas," in a statute of limitations of Tennessee, said: "That the statute laws of the States must furnish the rule of decision to this court so far as they comport with the Constitution of the United States in all cases arising within the respective States, is a position that no one doubts. Nor is it questionable that a fixed and received construction of their respective statute laws, in their own courts, makes in fact a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that this admission may at times involve us in seeming inconsistencies, as where States have adopted the same statutes and their courts differ in the construction. Yet that course is necessarily indicated by the duty imposed on us to administer, as between certain individuals, the laws of the respective States, according to the best lights we possess of what those laws are." In Beauregard v. New Orleans, 18 How. 497, 502, which was before us in 1855, this court, in speaking through Mr. Justice Campbell, said: "The Constitution of this court requires it to follow the laws of the several States as rules of decision wherever they properly apply. And the habit of the court has been to defer to the decisions of their judicial tribunals upon questions arising out of the common law of the State, especially when applied to the title of lands. No other course could be adopted with any regard to propriety. Upon cases like the present the relation of the courts of the United States to a State is the same as that of its own tribunals. They administer the laws of the State, and to fulfill that duty they must find them as they exist in the habits of the people and in the exposition of their constituted authorities. Without this the peculiar organization of the judicial tribunals of the States and the Union would be productive of the greatest mischief and confusion."

The position that the plaintiff, the fireman, voluntarily assumed the risk in this case, because he knew the helper had no right to the track without orders, and there was possibly a local train somewhere on the track, by continuing on the train instead of leaving it, does not strike me as having much force. It was not considered of sufficient importance to be called to the attention of the court below, or of the jury. Its suggestion now seems to be an afterthought of counsel. It is not positively shown that any special orders as to the movement of the helper on its return, or any information as to the use or freedom of the road, were received by the engineer from the train dispatcher; but the fireman had no actual knowledge on that point, though he had a right to presume that such was the case, from the fact that immediately upon the receipt of an order given to the conductor, at Burr's Mills, the latter directed that the helper start back. Nor did the fireman have any actual knowledge whether the train

he was directed to follow was or was not a regular scheduled train, though he had a right to presume that it was, from the orders of the conductor. His information as to what was known, and consequently directed or omitted, by the engineer on that subject was too imperfect for him to act upon it. His continuance as fireman on the locomotive after its movement to return to Bellaire was not with sufficient knowledge of any failure of the engineer to give the proper orders as to a scheduled train to justify an abandonment of the locomotive. It was under the direction of the engineer, not of the fireman, and he may have felt confident that it could be run on a side track, if necessary, tc avoid any possible collision with a train coming in the opposite direction, as was sometimes done. It would be a dangerous notion to put into the heads of firemen and other employees of a railroad company that if they had reason to believe, without positive information on the subject, that dangers attended the course pursued by the movements of the train under the direction of its conductor, they would be deemed tc assume the risk of such movements if they did not expostulate with him, and, if he did not heed the expostulation, leave the train, even after it had commenced one of its regular trips. A strange set of legal questions would arise, more embarrassing to the courts than the fellow-servant question, if such action should be deemed essential to the retention by the employee of the right to claim indemnity for injuries which might follow from the course pursued. If the employees could abandon a train after it had commenced one of its regular trips when they had reason to believe, without absolute information, that danger might attend their continuance on it, new strikes of employees would spring up to embarrass the commerce of the country and annoy the community, founded upon such alleged apprehensions. The circumstances attending the cases in which an employee has been held to have voluntarily assumed the risks of an irregular, improper or ill-advised movement of a train, under directions of its conductor, are essentially different from those of the case before us. The testimony in the record, upon which the allegation is made that the fireman voluntarily assumed the risks taken by the engineer with knowledge of their existence, is of the most flimsy and unsatisfactory character conceivable. It only discloses general ignorance by him of what the engineer did, or of information upon which he acted, as will be seen by its perusal. The allegation, which is founded upon a few broken and detached sentences, loses its entire force when the context is read. The whole testimony bearing upon this subject is given in a note at the foot of this dissent.

It only remains to notice the observations made upon the decision in the Ross Case, 112 U. S. 377, which seems to me to greatly narrow its effect and destroy its usefulness as a protection to employees in the service of large corporations, under the direction and control of supervising agents. That was an action brought by a locomotive engineer in the employ of the Chicago, Milwaukee & St. Paul Railroad Company to recover damages for injuries received in a collision which was caused by the negligence of the conductor of the train. The company claimed exemption from liability on the ground that the conductor and engineer were fellowservants; but the court charged the jury that it was clear that if the company saw fit to place one of its employees under the control and direction of another, then the two were not fellow-servants engaged in the same common employment, within the meaning of the rule of law which was the subject of consideration, and that by its general order the company made the engineer, in an important sense, subordinate to the conductor. To this charge exceptions were taken. The correctness of the charge was the question discussed in the case by counsel, and determined by the court. Its

correctness was necessarily sustained by the judgment of affirmance, which could not have been rendered if the exception to it were well taken. The majority of the court in their opinion, while admitting that the charge is much like the one in the present case, and might be well said to be sufficient authority for sustaining and affirming the judgment, contend that the court did not attempt to approve the instruction generally, but simply held that it was not erroneous as applied to the facts of the case, and in support of this view cite the language of the court used to show that the conductor of a railway company, exercising certain authority, represents the company, and therefore for injuries resulting from his negligent acts the company was responsible and the statement that the case required no further decision. Clearly it did not require any further decision, for it covers the instruction objected to, that if the company saw fit to place one of its employees under the control and direction of another, then the two were not fellow-servants engaged in the same employment within the meaning of the rule of law as to fellow-servants. A conductor of

a railway company, directing the movements of its train, and having its general management, illustrates the general doctrine asserted and sought to be maintained throughout the opinion in the Ross Case, that railroad companies in their operations, extending in some instances hundreds and even thousands of miles, and passing through different States, must necessarily act through superintending agents-employees subordinate to the company, but superior to the employees placed under their direction and control. The necessity of this doctrine of subordinate agencies standing for and representing the company was well illustrated in the duties and powers of a conductor of a train or engine. They were stated as an illustration of the necessity and wisdom of the rule, and not to weaken or narrow the general doctrine asserted in the decision of the court, and which its opinion, in almost every line, attempted to maintain. The necessity of subordinate agencies exists whenever a train or engine is removed from the immediate presence and direction of the head officers of the company.

The opinion of the majority not only limits and narrows the doctrine of the Ross Case, but in effect denies, even with the limitations placed by them upon it, the correctness of its general doctrine, and asserts that the risks which an employee of a company assumes from the service which he undertakes is from the negligence of one in immediate control, as well as from a co-worker, and that there is no superintending agency for which a corporation is liable, unless it extends to an entire department of service.

A conclusion is thus reached that the company is not responsible in the present case for injuries received by the fireman from the negligent acts of the conductor of the engine.

There is a marked distinction in the decisions of different courts upon the extent of liability of a corporation for injuries to its servants from persons in their employ. One course of decisions would exempt the corporation from all responsibility for the negligence of its employees, of every grade, whether exercising su pervising authority and control over other employees of the company or otherwise. Another course of decisions would hold a corporation responsible for all negligent acts of its agents, subordinate to itself, when exercising authority and supervision over other employees. The latter course of decisions seems to me most in accordance with justice and humanity to the servants of a corporation.

I regret that the tendency of the decision of the majority of the court in this case is in favor of the largest exemptions of corporations from liability. The principle in the Ross Case covers this case, and requires, in my opinion, a judgment of affirmance.

and that all other cars would admit such passage. Much useless verbiage in the complaint has obscured the statement of these facts to some extent, but not to the extent of destroying them. The unavoidable conclusion to which the language employed lends is that the ordinary cars in use on said road would admit such passage. It is also claimed that the complaint is bad for the reason that it appears therefrom that appellee was not free from contributory negligence. The contention is that as it appears from its averments that appellee was engaged for appellant as brakeman from the 13th day of November, 1887, until the 8th day of May, 1888, he had ample opportunity to know all about the dangerous character of the bridge, and that therefore he assumed the risk of such employment. The complaint "avers that from the 16th of November, 1887, to the 8th of May, 1888, inclusive, he was employed by defendant as brakemau on the division of its said road between Ft. Wayne and Chicago." What train he had been braking on during that time, whether freight or passenger, is not stated. If it was either material or useful to appellant's rights to have the complaint specify the particular train, the only remedy was a motion asking the trial court to require such specification, and not a demurrer for want of facts sufficient. No such motion was made. It is afterward averred in the complaint that appellee had not at or before he was injured any knowledge or notice whatever that said bridge was so low that it would come in collision with his head or any part of his body, or that it was low enough to touch him as he passed under the same. From this language it clearly enough appears that he in fact did not know of the dangerous character of the bridge, and the demurrer admits that fact. Nor does it appear from the facts stated that he might have known of such danger, because it does not appear that he was ever braking on a freight train for appellant prior to the occasion on which the alleged injury was received; and if that did appear, still there is nothing in the complaint to indicate that he had ever known of or seen "refrigerator or other highest cars" pass under said bridge, either with or without a brakeman standing thereon, or that any other facts existed within his knowledge to warn him of the dangerous character of the bridge.

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This analysis of the complaint upon the point in question makes the long list of authorities cited by appellant's counsel in support of his contention inapplicable. It is true, as stated in Pennsylvania Co. v. Whitcomb, 111 Ind. 216, cited by appellant, "that no one is bound to remain in a service which he is informed is dangerous, and, if an employee does voluntarily continue in the master's service after notice of its dangers, he assumes all risks arising from the known dangers. * *The risks which the employee assumes are however such as are incident to his service, and such as arise in cases where ordinarily safe machinery and appliances are provided. If machinery of an unusual and more dangerous character is provided, and the employee has no notice of the danger, then he does not assume the risk attendant upon its use." To the same effect are Railway Co. v. Adams, 105 Ind. 151; Railway Co. v. McCormick, 74 id. 441; and many other cases cited by appellant. We do not think the danger of an overhead bridge maintained by a railroad company so low that it may come in contact with the heads of its brakemen while engaged in their duties on the top of its cars as they pass under such bridge is one of the dangers incident to such service. There are a thousand and one dangers incident to the service of all railroad operative employees that ordinary prudence cannot be expected to guard against, and for which the master is not liable, and the risk of which is assumed by the employee; but the maintenance of an overhead bridge so low as to fracture the skulls and endanger

the lives of brakemen is not one of them. The precise question here under consideration was decided by this court in Railroad Co. v. Rowan, 104 Ind. 88, where this court, appropriating the language of the Supreme Court of Massachusetts, said: "He who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such service. But,' says this court, "there are well-defined exceptions to this general rule, one of which arises from the obligation or duty of the master not to expose the servant while conducting his business to perils or hazards which might have been provided against by the exercise of due care and proper diligence upon the part of the master.

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A railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and if, from defective construction of its road and appurtenances, an injury happen to one of its servants, the company is liable for the injuries sustained." This court held in that case that a complaint in all respects substantially the same as the one at bar was good on demurrer, and expressly repudiated many of the authorities cited by appellant in this case to the contrary. That case was cited and reaffirmed by this court in Railway Co. v. Wright, 115 Ind. 378, a case involving the sufficiency of the complaint on demurrer for an injury received by a brakeman on account of an overhead bridge being too low. The latter case is a stronger one in support of the sufficiency of the complaint here than the former. In the latter case it appeared that no full grown man could stand erect on any box car and pass under the bridge without striking it; that the plaintiff had been in the employ of the defendant as brakeman over that part of the road where the bridge was from the 5th of October to the 4th of November, 1881, and that during that time he passed with his train under said bridge from eight to ten times in the day-time and that many times in the night. He was again employed as brakeman over that part of the road on the 11th or 12th of January, 1882, and he was injured on the night of the 13th of that month, and from his first employment to the time of his injury he had passed under the bridge from seventeen to twenty times, one-half of the number being in the night; and yet it was held in that case that these facts did not destroy or overthrow the allegation and the finding that he was ignorant of the dangerous character of the bridge, though it was found by the jury in answer to interrogatories that the danger was an open and obvious one in the day-time, but not at night. And quoting from the first case above, this court said in the latter case that "it seems to us that a railroad company is, and ought to be, required to construct and maintain its roadway and appendages, and its overhead structures, in such a manner and condition that its employee or servant can do and perform all the labors and duties required of him with reasonable safety; and, applying the language from Railroad Co. v. Love, 10 Ind. 554, said: "If a defect existed in the road which was known to the company, but which it was impossible for them to remove or remedy, and in consequence thereof the road was unsafe, but not impassable, and yet they should place an employee upon the road and suffer him, in ignorance of said defect, to attempt to operate it, and injury should thereby result to him, certainly there would be a liability." To the same effect are Pennsylvania Co. v. Brush, 130 Ind. 347; Nordyke & Marmon Co. v. Van Sant, 99 id. 188; Car Co. v. Parker, 100 id. 181; Krueger v. Railway Co., 111 id. 51; Bradbury v. Goodwin, 108 id. 286; Railway Co. v. McCormick, 74 id. 440. And applying to that case the principles laid down by the Supreme Court of Illinois in Railroad Co. v. Welch, 52 Ill. 183, this court, in Railway Co. v. Wright, supra,