1. Master and Servant (§ 286*) — Injuries to Servant — Questions for Jury.

In an action for injuries to a servant by the fall of the hammer attached to a pile driver, evidence held, to require submission to the jury of the questions whether a “chock block” was attachéd to the pile driver as a safety appliance for the hammer to rest on when suspended, and whether such block was a usual adjunct of a pile driver as a reasonable device designed to protect workmen against injury.

[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001-1050; Dec. Dig. § 286.*]

2. Master and Servant (§ 219*) — Injuries to Servant — Assumed Risk.

An employs may assume that reasonable care will be observed by his employer for his protection, except that the employs assumes the risk of a defect in machinery which is known to him, or is so patent and obvious as to be readily observable while engaged in the work, in case-he continues to operate the defective machine notwithstanding such defect.

[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*] ' .. .

3. Master and Servant (§ 219*) — Injuries to Servant — Defective ■ Machinery-Assumed Risk.

Plaintiff, a laborer at work on the third platform of a pile driver 50 feet or more in height, was injured by the accidental fall of the hammer due to the alleged absence of a “chock block” to hold the hammer suspended when not in use. The block should have been attached on the fifth' platform or within 10 feet of the top of the machine. Plaintiff was at the top of the pile driver twice during his prior work about it to oil the pulleys. Held, that the absence of the block was not such an apparent defect that plaintiff would be charged with notice thereof so as to impose on him an assumption of risk as a matter of law.

[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219*

Assumption of risk incident to employment, see note to Chesapeake & O. It. Co. v. Hennessey, 28 G. C. A. 314.]

4. Appeal AND Error (§ 1050*) — IIahmi-uss Error — Evidence.

In an action for injuries, the complaint alleged that by reason of the 'injuries plaintiff had lost the use of the muscles of his left leg, had lost a great deal of feeling, and that he could not properly control his left foot. Plaintiff’s physician testified that there was some swelling in the limb extending to the foot and ankle; that there had been a sore on the heel which would not heal, apparently made from pressure; and that it might have been by direct injury or have resulted from pressure. Held, that defendant was not prejudiced by the court’s permitting plaintiff to testify over objection that he had a sore on his heel, that suppurated at times, which was nearly half an inch deep, and to exhibit his foot to the jury, though the testimony was not strictly relevant under the allegations and complaint.

[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153; 4166; Dec. Dig. § 1050.*]

5. Triai. (§ 296*) — Instructions—Instruction as a Whole.

An instruction was not erroneous as eliminating the defense of assumed risk, where such defense was fully presented by another instruction.

[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-718; Dec. Dig. § 296.*]

6. Courts (§ 321*) — Federal Courts — Controversies Between Citizens and Aliens.

Under Act Aug. 13, 1888, c. 866. 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), giving Circuit Courts original cognizance over controversies between citizens of a state and foreign states’ citizens or subjects, an alien may sue a citizen in the Circuit Court.

[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 845-849; Dec. Dig. § 321.*]

7. Removal op Causes (§ 41*) — Suit by Amen Against Citizen.

A suit by an alien, in a state court against citizens or a corporation being a resident of a state other than that in which the suit was instituted is removable to the federal Circuit Court.

[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 82%~ 84; Dec. Dig. § 41.*]

8. Removal op Causes (§ 86*) — Jurisdiction—Petition.

A federal court can only acquire jurisdiction of a removed cause when the petition for removal states facts sufficient to warrant the process, as neither consent, agreement of the parties, nor estoppel can confer such jurisdiction; it being essential that the record shall affirmatively show that jurisdiction exists.

[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. § 86.*]

9. Removal op Causes (§ 100*) — Failure op Jurisdiction — Eppect.

On removal of an action to a federal court, if the record does not affirmatively show jurisdiction, the court will on its own motion decline to exercise further jurisdiction over the cause.

[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §213; Dec. Dig. § 100.*]

10. Removal or Causes (§ 108*) — Dismissal—Grounds—District—'Waiver.

Plaintiff, wlio was in fact an alien, sued defendant in the. state courts of Washington to recover for an alleged.injury while in defendant’s employ; defendant being a citizen and resident of New York. Defendant filed a petition to remove the cause to the federal court sitting in Washington, alleging that plaintiff was a citizen of Washington and a resident of the Western district thereof. Defendant after removal answered the complaint, and entered on the trial without objection where it appeared that plaintiff was an alien, whereupon defendant moved to dismiss for want of jurisdiction. Held, that since the removal petition showed a valid ground for removal and the evidence disclosed an equally sufficient, though different ground, and defendant by its removal proceedings had waived its right to be sued in the district of ¡its residence, the court had jurisdiction to try the cause, and that the motion to dismiss was properly denied.

[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. § 217; Dee. Dig. § 108.*]