ON REHEARING.
Opinion delivered November 19, 1906.
Hire, C. J.i. Appellant calls attention to the matter of jurisdiction heretofore urged, which was fully considered by the court, but not mentioned in the opinion.
The suit was brought in Crawford Circuit Court, and on petition of defendant was removed to United States Circuit Court for the Western District of Arkansas, and a motion to remand to the State court was sustained by said United States Circuit Court.
The rule governing this matter is thus stated by the United States Supreme Court: “If the circuit court (of the United States) remands a cause, and the State court thereupon proceeds to final judgment, the action of the circuit court, is not reviewable on writ of error to such judgment. A State court can not be held to have decided against a Federal right, when it is the circuit court (of the United States), and not the State court, which has denied its possession. * * * As under the statute a remanding order of the circuit court is not reviewable b'y that court on appeal or writ of error from or to that court, so it would seem to follow that it can not be reviewed on writ of error to a State court, the prohibition being that ‘no appeal or writ of error from the decision of a circuit court remanding such cause shall be allowed/ And it is entirely clear that a writ of error can not be maintained under section 709 in respect of such an order when the State court has rendered no decision against a Federal right but simply accepted the conclusion of the circuit court.” Missouri Pacific Ry. v. Fitzgerald, 160 U. S. 556; Nelson v. Maloney, 174 U. S. 164; Telluride Power Trans. Co. v. R. G. W. Ry., 182 U. S. 569.
In view of the foregoing decisive settlement of the matter, the court did not consider that it was a question properly for its decision, and expressed no opinion on the right of removal, and expresses none now.
Attention is called to the fact that there was a second petition for removal which the State court denied. If there had been any change in the removable nature of the suit after the cause was remanded, then a question addressing itself primarily to the State circuit court would have been presented, and its decision reviewable here, and the decision of this court reviewable on writ of error by the Stipreme Court of the United States, but such was not the case.
The original complaint alleged: “That plaintiff’s cause of action arises under an act of Congress, and in the trial of said cause there will be a controversy as to the construction of said act of Congress,” and it then proceeded to allege the death of the deceased “on account of said wrongful and improper equipment of said two cars [which he as brakeman was coupling], and the negligent, defective and dangerous condition of same; that said cars were wrongfully and improperly equipped, and in a dangerous and defective condition in this: Said cars were not equipped with automatic or safety couplers, the drawbars on said cars were not even, uniform or standard height, as required by the laws of Congress.” After the remand of the cause to the State circuit court, the plaintiff amended the first clause above quoted so as to make.it read as follows: “That plaintiff’s cause of action arises under an act of Congress, and in the trial of said cause there will be a controversy as to the construction of said act of Congress, and that in the trial of this cause said act of Congress will have to be construed by the court, and that there will be a controversy as to the construction of said act of Congress:” Appellant says: “After the cause was remanded from the United States court at Fort Smith to the Crawford Circuit Court for trial, then the plaintiff amended his complaint, and charged that his cause of action arose under the safety appliance act of Congress, and that it would be necessary for the court to construe the safety appliance act of Congress during the further progress of the cause.” All of this is true, but the complaint before amendment showed exactly the same thing, and the amendment was trivial, and neither added to nor took away anything. Whether it was a Federal question was just as clearly in the complaint before as it was after the amendment, and the Federal circuit court decided it was not a Federal question, and that decision is not reviewable here. When an amendment transforms a nonremovable case into a removable one, then the defendant may have and sustain a second petition for removal. Moon on Removal of Cause, § 157; Powers v. C. & O. Ry., 169 U. S. 92. But, as indicated, this case fell far away from that rule.
2. It is contended that the court erred in holding the facts sufficient to sustain the verdict. The facts on the former trial are set out in 71 Ark. 445, and the facts in the last trial (and there were some differences), are set out in the statement of the facts prepared by Mr. Justice Battle, and it would be useless to review them now. The court is satisfied that they are sufficient to sustain the verdict; and while there is a difference of opinion among the judges as to the instructions, there is no difference on this question.
3. It is insisted that the former decision is not binding as res judicata on this appeal. As to the facts, where they are not identical, that is true; but the law governing the construction of the act of Congress is invoked on the facts formerly presented and on the facts as now presented, and the former construction is the law of this case, and can not be reopened on this appeal. All matters heretofore and now presented have been considered, and the motion is denied.