Horace Harmon Lurton

“ They are based alone upon the admitted facts that at the time of the collision the plaintiff was in the express car, and that there was a rule of the company requiring him to be in the baggage car. They assume that, in being in the express car, he was where he had no right to be; and that if injured while there, the jury must acquit the company of negligence, and upon that issue find for the railroad company. ”

“ In St. Louis, I. M. & S. R. Co. v. Taylor, 210 U.S. 281, 293, 52 L. ed. 1061, 1067, 28 Sup. Ct. Rep. 616, it was said:
'Where a party to litigation in a state court insists, by way of objection to or requests for instructions, upon a construction of a statute of the United States which will lead, or, on possible findings of fact from the evidence may lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by the highest court of the state, then the question thus raised may be reviewed in this court. ”

“ It was a part of the general charge in respect of contributory negligence. It was limited to the separate issue submitted to the jury as to such negligence.
It is not easy to see why the mere going into the express car would be negligent unless the conditions were such as to be an act of imprudence which a reasonable man would not have done. But this we pass by as pertaining to the merits. In any event the exception did not raise any specific question as to the proper construction of the act under which this action had been brought. ”