HAND, District Judge
(after stating the facts as above). The question is squarely raised in this case of the jurisdiction of this court. In so far as it depends upon diverse citizenship, the case must be remanded under Act March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 507). That act provides, in section 5, that, if at any time it appears that the suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the said Circuit Court, that court shall proceed no further, but dismiss the suit or remand it to the court from which it was removed, as justice requires. If, however, the dispute or controversy is one arising under a law of the United States, then this court has jurisdiction, and it makes no difference that the defendant could not have been originally sued in such a controversy outside of its domicile. Such domiciliary objections do not go to the subject-matter of the jurisdiction, and the only ground for a remand or dismissal under the act of 1875 is when “the dispute or controversy” is not “properly within the jurisdiction” of this court. Such a dispute or controversy is within its jurisdiction if the correct construction of the law, which is laid in the complaint as the basis of tne right of action, is necessarily involved in the decision, and it is quite clear in this case that it is necessary to determine the mean[835]*835ing of the phrase “person employed by such carrier in such commerce.” Therefore this court has jurisdiction, even though the complaint should be dismissed because the plaintiff was not a person so employed. In short, a decision of the meaning of that act is necessary, and such a necessity gives me jurisdiction, regardless of the result of the case. Huntington v. Laidley, 176 U. S. 668, 20 Sup. Ct. 526, 44 L. Ed. 630.
Coming then to the merits, I will take up the points raised by the defendant seriatim. First, upon the motion to direct a verdict, I think the refusal was proper. From the evidence the jury could have found that the plaintiff, who was under the orders of Nighland, had been standing facing east so that the train came upon him from the rear, while Nighland himself was at work facing either south or west, and the other track walker stood apparently between the two. If this was the relative position of the three men, the jury could have found that the plaintiff was relying upon the other track walker or Nighland to look west and to observe the trains. If both failed to warn plaintiff of the train coming from that direction, the accident was due to their negligence in a duty reasonably imposed upon them, and, though they were fellow servants, yet under this statute their negligence was that of the master. The fellow-servant rule has been so much ingrained in both bench and bar that this point was not made on the trial; but it was directly in the evidence and justified a refusal to dismiss for lack of the defendant’s negligence.
Besides, there was also evidence in the case that the rear of the train was not lighted, that no warning was given of the train’s approach, and that the man at the rear, although he saw the lights, waited too long before trying to check the train. Since the accident happened at night, and the train was running swiftly and without any ready means of control, I think the case is clearly differentiated from Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758, and I certainly do not think that as matter of law there was no negligence in operating in a freight yard four cars under their own impetus, after dark, without warning and without light. None of the cases cited by the defendant have a set of facts similar to this. Upon these two grounds therefore, and without considering the question of the necessity of stationing a man to watch the three, I am satisfied that there was evidence of the defendant’s negligence.
Contributory negligence being no defense, there remains only the assumption of the risk, which clearly enough is differentiated in the statute, though the usual distinctions between the two seem to me, I must say, very unscientific and vague. Perhaps the best difference is that of the degree of proximity of the supposed acceptance of the danger to its occurrence. Schlemmer v. Buffalo, etc., R. R. Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681. The plaintiff here assumed the risk, if at all, either, first, by accepting employment; or, second, by obeying Nighland’s order to hold the light. As to the first ground, the jury could have found that he had never been called on to mend a switch before, in which case they could not have found that he assumed the risk when he accepted the employment at the beginning of [836]*836the last week or the last day when he went to work. As to the second ground, to obey Nighland’s order may have been contributorily negligent ; but that is, I think, all it was. If there is any distinction between that and assuming the risk, as the statute requires, to put yourself in such a position is negligence rather than assumption. However, it is not necessary to decide this, because the jury,.as I.have said before, could well have supposed that the plaintiff relied on Nighland or the other track walker to watch for trains coming from his rear. Clearly he did not as matter of law assume the risk of being run down by.an unlighted train which gave no warning to any one, which the jury could have found to be the case. The assumption can begin only after the plaintiff is aware of the master’s delinquency.'
The only important exception which remains is to that part of the charge which permitted the jury to find the defendant negligent in not stationing some one to watch the gang of men while at work. It was possible under the charge for the jury to find that, although there were lights upon the train, and that the trainman acted reasonably in not trying to stop the train before he did, yet the defendant was negligent in not giving standing instructions in such cases for some employé to watch for trains. The defendant offered evidence that other railroads never did anything of the sort except in cases of large gangs who ’ obstructed each other’s vision, in which cases a man is detailed for that purpose; but it is well settled that the necessity of such rule is for the jury. Devoe v. New York Central, 174 N. Y. 1, 66 N. E. 568; McCoy v. New York Central, 185 N. Y. 276, 77 N. E. 1174. It seems to me now, as it did at the time, that where a gang of men is working on the track in the dark, and where trains are being constantly operated as these were operated, it is a fair question for the jury whether the railroad company should give instructions that some 'one among them keep on the lookout to protect the rest from being injured. Such a person might have to engage in the work from time to time; but it is at least a fair question of fact whether some one should not all the time watch for the approach of trains. Had I myself sat upon such a jury, I should have thought that it was a reasonable necessity for the safety of the men, regardless of the practice of other roads, and that a railroad should have a rule instructing its employés always to maintain a watch, while at work in the dark. It seems quite clear that, unless this is done, the attention of all will of necessity at times become directed upon the work rather than upon the danger.
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HAND, District Judge
(after stating the facts as above). The question is squarely raised in this case of the jurisdiction of this court. In so far as it depends upon diverse citizenship, the case must be remanded under Act March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 507). That act provides, in section 5, that, if at any time it appears that the suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the said Circuit Court, that court shall proceed no further, but dismiss the suit or remand it to the court from which it was removed, as justice requires. If, however, the dispute or controversy is one arising under a law of the United States, then this court has jurisdiction, and it makes no difference that the defendant could not have been originally sued in such a controversy outside of its domicile. Such domiciliary objections do not go to the subject-matter of the jurisdiction, and the only ground for a remand or dismissal under the act of 1875 is when “the dispute or controversy” is not “properly within the jurisdiction” of this court. Such a dispute or controversy is within its jurisdiction if the correct construction of the law, which is laid in the complaint as the basis of tne right of action, is necessarily involved in the decision, and it is quite clear in this case that it is necessary to determine the mean[835]*835ing of the phrase “person employed by such carrier in such commerce.” Therefore this court has jurisdiction, even though the complaint should be dismissed because the plaintiff was not a person so employed. In short, a decision of the meaning of that act is necessary, and such a necessity gives me jurisdiction, regardless of the result of the case. Huntington v. Laidley, 176 U. S. 668, 20 Sup. Ct. 526, 44 L. Ed. 630.
Coming then to the merits, I will take up the points raised by the defendant seriatim. First, upon the motion to direct a verdict, I think the refusal was proper. From the evidence the jury could have found that the plaintiff, who was under the orders of Nighland, had been standing facing east so that the train came upon him from the rear, while Nighland himself was at work facing either south or west, and the other track walker stood apparently between the two. If this was the relative position of the three men, the jury could have found that the plaintiff was relying upon the other track walker or Nighland to look west and to observe the trains. If both failed to warn plaintiff of the train coming from that direction, the accident was due to their negligence in a duty reasonably imposed upon them, and, though they were fellow servants, yet under this statute their negligence was that of the master. The fellow-servant rule has been so much ingrained in both bench and bar that this point was not made on the trial; but it was directly in the evidence and justified a refusal to dismiss for lack of the defendant’s negligence.
Besides, there was also evidence in the case that the rear of the train was not lighted, that no warning was given of the train’s approach, and that the man at the rear, although he saw the lights, waited too long before trying to check the train. Since the accident happened at night, and the train was running swiftly and without any ready means of control, I think the case is clearly differentiated from Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758, and I certainly do not think that as matter of law there was no negligence in operating in a freight yard four cars under their own impetus, after dark, without warning and without light. None of the cases cited by the defendant have a set of facts similar to this. Upon these two grounds therefore, and without considering the question of the necessity of stationing a man to watch the three, I am satisfied that there was evidence of the defendant’s negligence.
Contributory negligence being no defense, there remains only the assumption of the risk, which clearly enough is differentiated in the statute, though the usual distinctions between the two seem to me, I must say, very unscientific and vague. Perhaps the best difference is that of the degree of proximity of the supposed acceptance of the danger to its occurrence. Schlemmer v. Buffalo, etc., R. R. Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681. The plaintiff here assumed the risk, if at all, either, first, by accepting employment; or, second, by obeying Nighland’s order to hold the light. As to the first ground, the jury could have found that he had never been called on to mend a switch before, in which case they could not have found that he assumed the risk when he accepted the employment at the beginning of [836]*836the last week or the last day when he went to work. As to the second ground, to obey Nighland’s order may have been contributorily negligent ; but that is, I think, all it was. If there is any distinction between that and assuming the risk, as the statute requires, to put yourself in such a position is negligence rather than assumption. However, it is not necessary to decide this, because the jury,.as I.have said before, could well have supposed that the plaintiff relied on Nighland or the other track walker to watch for trains coming from his rear. Clearly he did not as matter of law assume the risk of being run down by.an unlighted train which gave no warning to any one, which the jury could have found to be the case. The assumption can begin only after the plaintiff is aware of the master’s delinquency.'
The only important exception which remains is to that part of the charge which permitted the jury to find the defendant negligent in not stationing some one to watch the gang of men while at work. It was possible under the charge for the jury to find that, although there were lights upon the train, and that the trainman acted reasonably in not trying to stop the train before he did, yet the defendant was negligent in not giving standing instructions in such cases for some employé to watch for trains. The defendant offered evidence that other railroads never did anything of the sort except in cases of large gangs who ’ obstructed each other’s vision, in which cases a man is detailed for that purpose; but it is well settled that the necessity of such rule is for the jury. Devoe v. New York Central, 174 N. Y. 1, 66 N. E. 568; McCoy v. New York Central, 185 N. Y. 276, 77 N. E. 1174. It seems to me now, as it did at the time, that where a gang of men is working on the track in the dark, and where trains are being constantly operated as these were operated, it is a fair question for the jury whether the railroad company should give instructions that some 'one among them keep on the lookout to protect the rest from being injured. Such a person might have to engage in the work from time to time; but it is at least a fair question of fact whether some one should not all the time watch for the approach of trains. Had I myself sat upon such a jury, I should have thought that it was a reasonable necessity for the safety of the men, regardless of the practice of other roads, and that a railroad should have a rule instructing its employés always to maintain a watch, while at work in the dark. It seems quite clear that, unless this is done, the attention of all will of necessity at times become directed upon the work rather than upon the danger.
The remaining question is of the application of the act of 1908, and that turns on whether the plaintiff was employed in interstate commerce. The act in question was passed after the decision of the Supreme Court in the Employer’s Eiability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, in which a similar act was declared unconstitutional by a divided court, because it applied generally to all carriers engaged in interstate commerce, regardless of whether or not the particular act was in interstate commerce. Some questions, however, were decided by the whole court in those cases, and o.ne of these was that the act was not unconstitutional because it regulated the relation of master and servant; all the justices recognizing that Congress [837]*837might regulate those relations while the master and servant were employed in interstate commerce. The present act was clearly passed to meet the objection oí that decision, and I think it should therefore be construed as intending to include within the term “person employed in such commerce” all those persons who could be so included within the constitutional power of Congress; that is to say, the act meant to include everybody whom Congress could include. Under this construction the inquiry becomes whether Congress could constitutionally have passed a statute regulating the relation between a carrier-master and a servant who was engaged in the repair of a track used both for interstate and intrastate commerce. Preliminarily the distinction should be noted that the act will not necessarily apply to the same person in all details of his employment. One man might have duties including both interstate and intrastate commerce, and he would be subject to the act while engaged in one and not the other. This being so, the question is whether his repairing of a switch is such employment, when the switch is used indifferently in both kinds of commerce. Suppose the track had crossed a corner of a state, and there was only one station within that state so that all trains crossing over that track must necessarily be engaged in interstate commerce. Would not a track worker engaged in the repair of such a track be engaged in interstate commerce ? I do not think that he would be any the less so engaged than the engineer on the locomotive or the train despatcher who kept the trains at proper intervals for safety. Of course, it is not necessary that the man must personally cross a state line. If the repair of such a track be interstate commerce, does it cease to be such because there are two stations within the state and some of the trains start at one and stop at the other? I cannot think that this is true, although counsel have referred me to no case upon the subject and I have found none. The track is none the less used for interstate commerce, because it is also used for intrastate commerce, and the person who repairs it is, I think, employed in each kind of commerce at the same time.
Despite the earlier ruling in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, it has in recent times been stated several times by the Supreme Court that state statutes may indirectly regulate interstate commerce, even though Congress may at any time itself under its proper constitutional powers enact a provision of'directly opposite tenor. Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108. If, as was held in those cases, a state has the power to regulate such commerce until Congress intervenes, because it is as well within the state’s proper powers, must not the corollary be true as well, that Congress may intervene, even when the effect of that intervention be incidentally the regulation of intrastate commerce as well? Could not Congress, for example, provide that all tracks used in interstate commerce must be of a standard width and weight? Would that not affect all tracks used in such commerce, although they likewise were used for intrastate commerce? Of course, any one could use any other tracks he choose for intrastate commerce; but it can surely not be a ground to limit Congress’ proper powers that the track has a joint use. If so, the repair of such tracks [838]*838must be a part of interstate commerce, and under the Employer’s Liability Cases, supra, the relations of master and servant arising between the railroad and its employés engaged in repairing the track are similarly within the power of Congress.
I am therefore of opinion that the plaintiff was at the time engaged in interstate commerce and entitled to the rights secured by this act. That being so, it is a matter of no consequence whether the train that struck him was engaged in that commerce or not. It is true that the act is applicable to carriers only “while engaged” in interstate commerce, but that includes their activity when they are engaging in such commerce by their own employés. In short, if the employé was engaged in such commerce, so was the road, for the road was the master, and the servant’s act its act. The statute does not say that the injury must arise from an act itself done in interstate commerce, nor can I see any reason for such an implied construction.
I will therefore deny the new trial and direct judgment on the verdict. The defendant, if it wishes, may have a certificate on the jurisdictional point direct to the Supreme Court, though that opens only a limited review. U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87.