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Opinion of the Court.

and credit. It assumed that the will was properly admitted to probate in North Carolina, as well as in South Carolina, by an exemplification thereof, under the statute to that effect in the latter State, but it held that when Mrs. Harris prescribed. the mode in which the power of appointment should be exercisėd, by the use of the words “ by her last will and testament duly executed,” she intended a will duly executed according to the laws of South Carolina, and not a will duly executed according to the laws of any State or country in which the donee of the power, Mrs. Blount, might happen to be domiciled at the time of her death. The probate of Mrs. Blount's will in North Carolina established that the will was executed according to the law of the State where she was domiciled, but it did not establish that the will was executed according to the law of South Carolina, as it is conceded it was not. When, therefore, the Supreme Court of South Carolina, in construing Mrs. Harris' will, arrived at the conclusion that the estate of the latter would only pass to such person as might receive an appointment by a will duly executed according to the laws of South Carolina, that was an end of the case, and whether that conclusion was right or wrong is a matter with which we are not concerned. If we were of a different opinion, and, entertaining jurisdiction, were to reverse the judgment of the Supreme Court of South Carolina, we should do it upon the ground that that court erred in the construction of Mrs. Harris' will, and not upon any ground connected with the judgment of the Probate Court of North Carolina, which could not and did not determine that question. Counsel says

. that the position of the plaintiff in error is, “that the decision of the state court necessarily involved the question whether the will of Mrs. Blount was her last will and testament duly executed ;' that the judgment of the Probate Court of North Carolina is conclusive of this; and whether in the decision the state court has given this judgment the same force and effect as it has in North Carolina, is the federal question.” But the state court conceded that the judgment of the Probate Court of North Carolina established that the will of Mrs. Blount was her last will and testament duly executed, and its decision

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did not in the slightest degree proceed upon the denial of that fact, but gave the judgment the same force and effect that it bad in North Carolina, for in neither of the States would the will, as such, dispose of property that did not belong to the testatrix.

To give this court jurisdiction of a writ of error to a state court, it must appear affirmatively, not only that a federal question was presented for decision to the highest court of the State having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it. New Orleans Water Works Company v. Louisiana Sugar Refining Company, 125 U. S. 18, 29; Klinger v. Missouri, 13 Wall. 257, 263; De Saussure v. Gaillard, 127 U. S. 216; Hopkins v. McLure, 133 U. S. 380. The motion to dismiss the writ of error must be sustained.

Writ of error dismissed.

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LOUISVILLE AND NASHVILLE RAILROAD COM

PANY v. WOODSON..

ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.

No. 1182.

Submitted March 24, 1890. — Decided April 7, 1890.

The statute of Tennessee which provides that “not more than two new

trials shall be granted to any party in any action at law; or upon the trial by a jury of an issue of fact in equity,” Code of 1884, 735, § 3835, having been construcd by the courts of that State to refer to a state of case where, in the opinion of the court, the verdict should have been otherwise than as rendered, because of the insufficiency of the evidence to sustain it - and not to a case where there is no evidence at all to sustain it- is not in conflict with the Fourteenth Amendment to the Con

stitution; while the Fifth Amendment has no application to it. It is settled law in this court that when the evidence given at the trial, with

all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if re

Opinion of the Court.

turned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant; while, on the other hand, the case should be left to the jury, unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish.

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MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Woodson sued the Louisville and Nashville Railroad Company to recover damages for injuries sustained by him through its negligence. The defendant pleaded not guilty. Upon the trial in the Circuit Court of Haywood County, Tennessee, the jury returned a verdict in favor of the plaintiff, assessing his damages at $3000, which on motion was set aside, and a new trial granted upon the ground that the verdict was not sustained by the evidence. A second trial was then had which resulted in a verdict for the plaintiff of $5000, which was again set aside on motion, upon the same ground. A third trial was then had resulting in a verdict of $3000, upon which judgment was entered. And the record then states : “In this cause, on this the 31st day of August, 1888, the defendant moved the court to grant .it a new trial herein and to arrest the judgment herein because the verdict of the jury, returned herein August 30, 1888, was not supported by the law and the evidence submitted, and because of error in His Honor the trial judge in allowing plaintiff to make proof of others than the plaintiff swinging on to trains at other times prior to the day of the accident, and of the habit of plaintiff and other boys in swinging to moving trains prior to the day of the accident; which motions are by the court seen and understood, and the same are by the court overruled and disallowed. Thereupon the defendant presented its bill of exceptions to the ruling of

Opinion of the Court.

the court in overruling its motions aforesaid and in overruling its objection to the admission of the testimony aforesaid in the progress of the trial; which bill of exceptions is signed by the court and ordered to be made a part of the record herein." Defendant prayed an appeal to the Supreme Court of Tennessee, which was granted, and an appeal bond given accordingly.

The bill of exceptions sets forth all the evidence adduced upon the trial, and the charge of the court in full. This charge is of considerable length, and presented the case to the jury with apparent care. It is nowhere therein stated that there was no evidence upon which the plaintiff would be entitled to recover; on the contrary, it assumes that there was some evidence which would justify a verdict for the plaintiff.

It was said by the trial judge, among other things: “On the other hand, if you find the injury was the direct and proximate result of the defendant's negligence or misconduct, you will return your verdict for the plaintiff; or if you find the plaintiff was a child of tendar years. when injured. and that his conduct and wrong did not contribute to the injury, but that he was not possessed of such discretion and judgment on account of his infancy as would reasonably be calculated to cause him to avoid such danger, and you íurther find that the defendant might have prevented and avoided the accident by the exercise of ordinary and reasonable prudence and caution, then in that event you should return your verdict for the plaintiff. The plaintiff would be a trespasser if he was on the defendant's freight trains or swinging to one of them, or in the defendant's yard or on its grounds trying to seize on to one of its cars. He would have no right to complain of a clearance post or staub being located on the defendant's track or roadbed if he was such trespasser, and defendant had put up or caused to be put up such clearance staub in its regular busi

ness.

“If you find that the defendant is a corporation running freight trains on its line of railroad through Brownsville, Tennessee, and that plaintiff, in December, 1881, was a small boy, about six years old, and that he and other small boys had been. prior to that date, for a long while in the habit daily of jumping

Opinion of the Court.

on and off of the freight and passenger trains of defendant 'while they were in motion, and riding thereon in and about the yards of defendant in said city, and that the conductors, brakesmen and trainmen and agent of defendant at its depot in Brownsville had knowledge of such practices and habit of the plaintiff and other boys, and that the said conductors, agents or brakesmen, or other employés of the defendant willingly permitted and encouraged the plaintiff to so ride on and jump on and off of such moving trains, and that the agent or assistant agent of defendant and the conductor of the freight train by which plaintiff was hurt knew that plaintiff was at the depot or in the yards of defendant or near the train, ready and likely to try to jump on said train when it might be put in motion, and that said train was so put in motion, and moved off, and that plaintiff was hurt by being thrown under the wheels thereof while swinging to one of the freight cars or while running along by one of said cars endeavoring to swing on the same, and that no effort or precaution was taken by said conductor or said assistant agent of defendant possessing such knowledge as aforesaid, then in that event I charge you the plaintiff would be entitled to a verdict for some damages against the defendant, and if you find such to be the facts you should return a verdict for the plaintiff.”

It is stated that the bill of exceptions is to the judgment of the court in overruling the objections to the admission of testimony, and also in overruling the motion for new trial and in arrest of judgment. It does not appear that the court was asked to instruct the jury, as matter of law, that no recovery could be had' upon any view which could be properly taken of the facts the evidence tended to establish; and it is evident from the extracts above given from the charge of the court that the trial judge must have been of opinion that a verdict for the plaintiff could be sustained upon some view that might be properly taken.

The railroad company assigned thirteen errors in the Supreme Court of the State as grounds for the reversal of the judgment of the Circuit Court. : Nearly all of these questioned the rulings of the court in relation to the admission of testi

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