Syllabus.

plaintiffs had themselves broken the contract. This motion was overruled, in consequence of the construction which the court then announced that it would put upon the contract. Thereupon counsel for the plaintiff in error moved the court "to allow it to open the case and show that at the time the contract was made the defendant expressly declined to make any such contract as the court holds was included in it, to make payments from time to time." This was declined upon the ground that such evidence would violate the rule that all preliminary negotiations are presumed to have been merged in the written contract. The action of the court in overruling this motion is now assigned as error. Aside from the fact that this motion came after the conclusion of all the evidence, and after the motion for a peremptory instruction had been argued and overruled by the court, we are of opinion that the line of testimony which the plaintiff in error asked leave to introduce was clearly in conflict with the rule excluding evidence as to the preliminary agreements and negotiations between the parties resulting in a written contract.

Upon the whole case, we are of opinion that none of the errors assigned are well taken, and that the judgment of the lower court should be, and accordingly is,

Affirmed.

BALTIMORE AND OHIO RAILROAD COMPANY v.

MCLAUGHLIN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DIVISION OF THE SOUTHERN DISTRICT OF OHIO.

No. 387. Submitted February 18, 1896. - Decided April 14, 1896,

Where a complaint or petition in a suit in a United States court is amended so that the amended complaint or petition shows the facts necessary to sustain the jurisdiction of the court so far as the citizenship of the parties is concerned, the averment by way of amendment to the original complaint or petition must be construed as of the date of the original complaint or petition, and be given effect as if the averment had been made a part of the original petition.

Statement of the Case.

An allegation in a complaint or petition in a United States court that the defendant company was an association of persons duly incorporated under the laws of a certain State raises the conclusive presumption that all the members of the association thus incorporated were citizens of that State.

In this case it was held that there was ample evidence to sustain the finding of the jury that the plaintiff's injury occurred by reason of the defective character of a bridge and the failure of the defendant, a railroad company, to maintain the bridge in a safe condition.

As it is part of the duty of a railroad company as a common carrier to ship stock, a station or freight agent of the company in charge of a station and freight depot at any place where stock is likely to be shipped may be presumed to have authority to allow a drover to ride with the stock which he had shipped and to take charge of it on the trip. A railroad company which permits a drover to ride without paying fare on the same train on which his stock is being carried cannot impose as a condition of such permission that the company shall be exempt from liability for an injury occurring through the negligence of its agents. An attempt to limit the authority of an agent by requiring that he shall impose such a limitation in every contract of shipment of live stock is equally nugatory. Even if a case were made showing that the agent had such a limited authority it would not affect a person dealing with him as a representative of the company without notice of such a limitation.

In an action brought against a railroad company by a drover for injuries suffered while traveling on a train with live stock of which he had charge, a release signed by a firm of which the plaintiff was a member for injury to the live stock is irrelevant, inasmuch as the release of the firm claim could not by any possibility include a claim by a member of the firm for personal injuries.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, District Judge.

This action was begun in the Circuit Court of the United States for the Southern District of Ohio, Eastern Division, by John R. McLaughlin, against the Baltimore and Ohio Railroad Company to recover damages for an injury sustained by him while riding upon a freight car of the defendant, with two horses, which he had shipped from Bloomingburgh, Ohio, on the defendant's railroad, to Columbus, Ohio. In the original petition the plaintiff made no averment as to his own citizenship, and simply averred that the defendant company

Statement of the Case.

was an association of persons duly incorporated under the laws of the State of Maryland, and that on or before the 14th day of April, 1891, the defendant was in the occupancy of and operating the Columbus, Cincinnati and Midland Railroad, a line of railroad running from Columbus, Ohio, in Franklin County, to Cincinnati, Ohio, and was engaged in the business of carrying passengers and hauling freight over the same for hire and reward.

A demurrer was filed to this petition for want of jurisdiction, which, by consent of counsel for plaintiff, was sustained and leave was given to file an amended petition within five days from the entry. In that amended petition the averments as to jurisdiction were as follows:

"Now comes John R. McLaughlin, plaintiff herein, by leave first obtained, and for his cause of action against the said Baltimore and Ohio Railroad Company, defendant herein,

says:

"That the plaintiff herein is a citizen of the State of Ohio, resident at Columbus, Franklin County, Ohio; that the defendant is an association of persons duly incorporated under the laws of the State of Maryland; that on and before the 14th day of April, A.D. 1891, the defendant was in the occupancy of and operating the Columbus, Cincinnati and Midland Railroad, a line of railroad running from Columbus, Ohio, in the county of Franklin, to Cincinnati, Ohio, and was engaged in the business of carrying passengers and hauling freight over the same for hire and reward."

The amended petition was in every respect like the original petition, except the averment as to the citizenship of the plaintiff. The answer of the defendant admitted that it was a corporation, and organized as stated in said amended petition, and that the plaintiff was a citizen of the State of Ohio as therein stated. The accident occurred by the giving way of a bridge or trestle across a creek. The negligence charged was that the bridge had not been maintained in a safe and proper condition, and that the timbers had been allowed to rot. There was a conflict of evidence as to what was the cause of the accident; the defendant claiming that it was a

Statement of the Case.

broken axle. This issue was submitted to a special finding of the jury.

The following questions were submitted to the jury :

"Third. What was the cause of the wreck of the train on which the plaintiff was riding when injured?" Answer: "Defective trestle."

"Fourth. Was the defendant, its agent or servants, guilty of negligence causing the injury to the plaintiff? If yes, in what did such negligence consist?" Answer: "Yes. For

want of proper care of trestle.”

"Sixth. Was not the accident which caused plaintiff's injuries caused by a broken axle which produced the derailment of the train and the breaking down of the trestle on defendant's road?" Answer: "No."

There was a further conflict of evidence upon the question whether the contract of shipment by McLaughlin with the station-master at Bloomingburgh was written or verbal. A written contract was produced, and McLaughlin denied that he had ever signed the firm name as it appeared signed to the contract, but said that the contract was entirely verbal. This question was submitted to the jury as follows:

"First. Was the contract of shipment in writing or verbal?" Answer: "Verbal."

The averment of the amended petition with reference to the contract between the plaintiff and the railroad company was as follows: "That on the 13th day of April, A.D. 1891, the said plaintiff herein, for a certain reward paid to said defendant herein, shipped certain live stock, to wit, two horses, from Bloomingburgh, Ohio, a station on said Columbus, Cincinnati and Midland Railroad, to Columbus, Ohio; that at the instance and request of said company and its agents and for reward paid said defendant, and with their knowledge and consent, he, the plaintiff, took passage on the same car with and in charge of said stock."

The character of the contract as alleged by the plaintiff was shown by the following evidence of the plaintiff: "The agent told me to put the horses on the car and to get on the car and come to Columbus with the horses, and told me that he would

Statement of the Case.

make all the arrangements and leave the papers in a box some place about the depot so that the engineer and conductor, or whoever was supposed to do that on the train, would get them, and I, according to his instructions, loaded the horses, and about 11 o'clock at night, or probably midnight, I went down and got on the car and fixed one horse in one end of the car and the other horse in the other end of the car, tied their heads toward each other and their heels toward the end of the car; tied with ropes so that the ropes would hold the horses in the center of the car; one rope to one side and the other to the other side, each side of the car. I fixed a cot in the middle of the car and laid down and went to sleep. When the train came along I woke up and went to the car door and called to the conductor." He further said that the contract was oral, and that he was to pay eleven or twelve cents a hundred pounds for the transportation of his horses from Bloomingburgh to Columbus. It was in evidence that the conductor spoke to him and knew of his presence upon

the train.

It was contended by the defendant below that the station agent had no authority to ship stock or to permit drovers or others to accompany them except under a special contract for the transportation of live stock, which the defendant claimed McLaughlin had signed. This contract provided among other things in its third clause: "The owner, shipper or consignee is to load, transfer and unload said stock at his risk, and will examine for himself the cars furnished for transportation and all the means used in loading and unloading, to see that they are of sufficient strength, or of the right kind, and in proper order and repair, and properly adjusted for the purpose; and said company is not to be responsible for any damage because of any defects in said cars, or in said means of loading and unloading. The owner, shipper or his agent or agents in charge of said stock shall ride on the train on which the same are transported at their own risk of personal injury from any cause, hereby releasing said company from any claim or damage on account of such injuries arising while upon or about the trains. And it is further agreed that the shipper or