аfter making the foregoing statement, delivered the opinion of the court. .
This case comes before us on motions-to dismiss or affirm. There was certainly color for the motion to dismiss as we retain jurisdiction with hesitation, and we will dispose of the case on the motion to affirm.
By some of the many exceptions preserved on the trial and disposed of by the state Supreme Court, it was sought to raise Federal questions in respect of the' acts of Congress (1) providing for the removal of. cases from a-state court to a court of the United States, and (2) providing that railroad companies engaged in interstate commerce shall equip their cars with automatic couplers.
1; The railway company did not at. any time apply for the removal of the.case to the Circuit Court: Plaintiff below and the company’s two co-défendants. were citizens of the same State, and the railway company did not make aрplication to *138 remove before trial on the ground of separable controversy or want of good faith in the joinder. Nor did it make such application when plaintiff’s evidence was in, nor on the whole evidence. There was no suggestion throughout the trial that the joinder was in itself improperly made, but the contention, as exhibited by the exceptions, was that a verdict could not be rendered against the company alone, because if it had been sued alone it would have had the right of removal. The trial court charged the jury that if the proof failed to show joint and concurrent negligence on the part of all the defendants, yet showed negligence on the part of one or more of them, resulting in injury to plaintiff, as the sole and proximate cаuse thereof, the jury might find a verdict against such defendant or defendants as the proof showed were guilty of such negligence; and to this instruction the railway company preserved an exception.
The railway company also excepted to the refusal of the court to give several instructions аsked on its behalf to the effect that, as by the allegation of a joint and concurrent tort, the company had been deprived of the right to remove the cause, joint and concurrent tort must be made out against the company and at least one of the other defendants; that to allow plaintiff to recover without propf of joint and concurrent tort would deprive the company of the right of removal guaranteed by the Constitution and laws; and оf its property without due process of law, in contravention, of the Fourteenth. Amendment, in that the company, would be deprived of the right of reimbursement which would otherwise exist. But these aré matters upon the merits, and recovery against one of several defendants does not depend on whether, if sued alоne, that defendant might have removed the case. The right of removal depends on the act of Congress, and the company not only on the facе of the pleadings did not come within the act, but it made no effort to assert the right. The rule is well Settled, as stated by Mr. Justice Gray
in Powers
v.
Chesapeake & Ohio Railway Company,
The view thus expressed was reiterated in
Chesapeake & Ohio Railway Company
v.
Dixon,
■ ,2. The act оf March 2, 1893, 27 Stat. 531,. c. 196, provided, in respect of common carriers engaged in interstate commerce, “that on and after the first day of January, eighteеn hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the сars.” • The trial court in one of its instructions sét forth this provision, and told the jury that if they found the railway company was engaged, and these cars were being used, in interstate traffic and that they were not equipped with the automatic.couplers required, such failure was negligence; and it. was further charged that railroads were required to. keep their appliances in safe and suitable order. It is objected that the instructions assumed that if the automatic couplеr was out of repair, the company failed to comply with thé act of Congress, but we do not think so, and the Supreme Court of the State held that- there was no error as Congress must have intended that the couplers, should, be kept in proper repair for use, and moreover, as such'was the law of the State, even if the act of Congress had not specifically imposed this duty., By this ruling no . right specifically set up or claimed Under the act of Congress by defendant below was decided against. There was no pretense that the' act of Congress provided that the automatic couplers need not be kept in order, and whether the cars in question were used in moving Interstate traffic-and whether the coupling appliances were deiective or not, were faсts left to the jury and determined by their verdict. The" recovery *141 was not sought on the single ground of want of safe appliances. That was important in its conneсtion with Carson’s being ordered to go between- the cars, and it was negligence while he was obeying that order, which was chiefly relied on. At all events, the cоmpany did not specifically set up or claim any right under the act of Congress .or dependent on its construction which was denied by the state courts, and the question raised on these instructions and numerous others on various aspects of the case, were not Federal questions, and need not be considered.
■ Jiidgment affirmed.