*162Opinion of ti-ie court by
JUDGE O’REAR.Reversing.
On a former appeal .(66 S. W., 609) we held that the petition by appellant, the Illinois Central Railroad Company, for the removal of this cause into the United States - Circuit Court, did not show, nor did the whole record show on its face, a separable controversy, and therefore that the lower court did not err in refusing to order the removal. After the motion for removal had;been overruled in the State court, appellant filed a transcript of the record in the United States Circuit Court for the District of Kentucky, at Padticah. Appellee appeared in that court and moved to remand the case. The order of the court overruling the motion to remand recited that it was upon evidence heard. What the evidence was, the record does not show. Time was given by the order in that court to appellee to file a bill of exception^, and to the defendant to file its answer, and to the plaintiff .'(appellee) time thereafter- in which to reply. At a subsequent term of that court, appellee appeared, and dismissed his petition, without prejudice. In the meantime the case in the State court was being proceeded with. Upon the return of the case from this court, appellant offereid to file a supplemental answer alleging the filing of the transcript in the United States Circuit Court, and the various steps taken therein, including the dismissal of the petition without prejudice. The court refused to permit the amendment, or the exhibits, copies of the proceedings in the federal court, to be filed. That action is one of the grounds now urged for a reversal of the judgment.
Appellant contends that as there was but the one action, when it was removed into the United States Circuit Court by the filing of the transcript, and by the overruling in that court of the motion to remand, thereafter an appearance by *163the plaintiff (appellee) was a waiver of the question of jurisdiction over his person, if there was such question, and the subsequent dismissal of the action without prejudice was actually a dismissal of the identical action now being tried. On the other hand, appellee contends that unless the United States Circuit Court had jurisdiction of the subject-matter, to-wit, a controversy involving more than $2,000, wholly between citizens of different States, or was separable, so that when separated it would constitute such an action, jurisdiction could not be conferred upon that court by waiver or consent; that therefore all proceedings there were void.
Under the act of Congress (sections 2, 3, Act March 3, 1875, c. 137; sections 1-10, as amended, Act March 3, 1887, c. 373, 24 Stat., 552; Act August 13, 1888, c. 866, 25 Stat., 433 [U. S. Comp. St., 1901, p. 508]), if the petition for removal be filed in the State court in due season, and be accompanied by sufficient bond and motion, and if the petition states facts showing, or if it and the record together then show, a prima fade right to the removal by the petitioner, it is the duty of the State court to proceed no further than to satisfy itself as to the sufficiency of the bond. The proper practice then is for the other party, if dissatisfied, to controvert in the federal court the facts alleged in the petition for the removal, and have the case then remanded, if improperly removed. If the State court orders this removal upon an insufficient petition, the party aggrieved may also prosecute an appeal at once to the State appellate court to have the order reviewed.
In recent years the right of removal has been more frequently and stubbornly resisted, and, without doubt, artful subterfuges have been resorted to by pleaders to control the question of jurisdiction. When that question depends upon a fact properly made an issue, the ascertainment of such fact *164is necessarily within the sole jurisdiction of the United States courts, and their determination of jurisdBctional facts is conclusive, binding alike upon the parties and State courts. If the facts properly alleged in the petition for removal of this case showed such a separable controversy between appellant railroad company, a citizen of Illinois, on the one side, and appellee, a citizen of Kentucky, on the other, which could and ought to be tried without regard to the presence of or right to have either of the other defendants joined in the suit, then the federal court had jurisdiction of thisi case. But whether, upon the facts stated in the petition and. record, there was presented a federal case, was within the jurisdiction of the State court to adjudge. Kansas City, etc., R. R., Co. v. Daughtry, 138 U. S., 298, 11 Sup. Ct., 306, 34 L. Ed., 963; McDonald v. Salem Capital Flourmill Co. v. (C. C.), 31 Fed., 577; Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U. S., 513, 7 Sup. Ct., 1262, 30 L. Ed., 1159; Stone v. South Carolina, 117 U. S., 430, 6 Sup. Ct., 799, 29 L. Ed., 962.
While the State courts can not inquire whether the facts alleged in the petition for removal are true, yet, when the petition for removal and the record do not show a prima fade right to the removal, the State court may refuse to surrender the ease, and will proceed to its trial. Filing a copy of the record in the Federal court upon such an insufficient petition does not, in our opinion, give the latter court jurisdiction to try the question of jurisdictional facts. If both the State and federal courts could try the same facts as to jurisdiction, different conclusions might be reached, and unseemly conflict and confusion result. To avoid these, the Congress has wisely madte the condition of the federal court’s jurisdiction to depend upon the filing in the State court, in due time, of a petition, in which, according to the unbroken current of the decisions of the federal courts construing the *165act, all necessary facts to show pima facie a right in the petitioner for the removal must he set out, not as conclusions of law, or such necessary facts must affirmatively and explicitly appear elsewhere in the record when the application to the State court for the removal is made. Crehore v. Ohio, etc., R. Co,, 131 U. S., 240, 9 Sup. Ct., 692, 33 L. Ed., 144; Freeman v. Butler (C. C.), 39 Fed., 1 (opinion by Barr, District Judge); Seddon v. Virginia, T. & C. S. & I. Co. (C. C.), 36 Fed., 6 1 L. R. A., 108; Jackson v. Allen, 132 U. S., 27, 10 Sup. Ct., 9, 33 L. Ed., 249; Smith v. Horton (C. C.), 7 Fed., 270; Amory v. Amory, 95 U. S., 186, 24 L. Ed., 428; Weed Sewing Machine Co. v. Smith, 71 Ill., 204; Chester v. Chester (C. C.), 7 Fed., 1; Burlington, etc., Ry. Co. v. Dunn, 122 U. S., 517, 7 Sup. Ct., 1262, 30 L. Ed., 1159; Railway Co. v. Ramsey, 22 Wall., 322, 22 L. Ed., 823; Grace v. American Central Ins. Co., 109 U. S., 278, 3 Sup. Ct., 207, 27 L. Ed., 932; Gold W. & W. Co. v. Keyes, 96 U. S., 199, 24 L. Ed., 656; Carson v. Dunham, 121 U. S., 421, 7 Sup. Ct., 1030, 30 L. Ed., 992; Removal Cases, 100 U. S., 457, 25 L. Ed., 593; Yulee v. Vose, 99 U. S., 539, 25 L. Ed., 355. The truthfulness of these facts may then, and not till then, be inquired into in the federal court. As the petition for the removal and the record in this ■case did not, in our opinion, state facts sufficient to confer jurisdiction upon the United States Circuit Court, that triIranal had not the right to inquire into their truthfulness, nor to hear evidence as to other facts not alleged in the record or the petition for removal, and, by adding such evidence to the insufficient allegations, find the needed jurisdictional facts. Applying these principles to this case, the United States Circuit Court never had jurisdiction of this action for any purpose. Nor can such jurisdiction be conferred by consent or appearance, or even a trial therein without objection on the merits of the case. Peper v. Fordyce, 119 U. S., 469 *1667 Sup. Ct., 287, 30 L. Ed., 435; Mexican National R. R. Co. v. Davidson, 157 U. S., 201, 15 Sup. Ct., 563, 39 L. Ed., 672; Southworth v. Reid (C. C.), 36 Fed., 451; Kingsbury v. Kingsbury, 3 Biss., 60 Fed. Cas., No. 7, 817; Re Hopkins, 18 Nat. Bank. Reg., 339 Fed. Cas., No. 6, 686.
The recent case of Stephenson’s Admr. v. I. C. R. R. Co. (25 R., 2011), 75 S. W., 260, seems to be in conflict with the conclusion now reached, and the reasons assigned therefor. The question of jurisdiction herein discussed was not considered or presented in that case. But in so far as it is in conflict with the principles of this opinion, it will no longer be regarded as authority.
It follows that the ruling of the trial court was correct, in refusing the amended or supplemental answer setting up the proceedings in the United States Circuit Court, as the matter thus attempted to be pleaded did not constitute a defense, and was wholly immaterial to the case.
This suit charges appellant railroad company and the con-' ductor and engineer of one of its trains with negligently killing appellee’s intestate. The negligent acts charged are that, in attempting a running or flying switch, appellee’s intestate, a brakeman on the train, while uncoupling the cars to be switched off, was riin over by being thrown under the cars by the negligence of the company’s engineer and conductor in starting up the engine too suddenly and without warning. There was evidence to show that the train crew, with the concurrence of the engineer and conductor, were attempting what some of the witnesses called a flying or running switch. This was prohibited by a rule of the' company, because of its danger to those who engaged in it. That the decedent voluntarily-took part will not alone prevent his recovery, if his superiors ordered it, and then negligently failed to take ordinary care required by the circumstances to avoid injuring him. To *167start the train suddenly- and without warning, and without a signal from him, while he was trying to uncouple the cars, whereby he was injured, presented a case of actionable negligence. Whether he was guilty of contributory negligence is not so clearly shown, though it should have been, and was, submitted to the jury. The motion for a peremptory instruction was properly overruled.
But we are of opinion that the court erred in defining the law of contributory negligence to the jury. After telling them that if the decedent was himself, at the time of his injury, guilty of such negligence that but for it he would not have been injured, notwithstanding defendants’ negligence, if they were negligent, yet the court said to the jury that if the defendants knew of decedent’s peril, or by the exercise of ordinary care might have known of it, in time to avoid injuring him, then his contributory negligence was unavailing as a defense. If the defendants knew of the peril of the decedent in time to have avoided injuring him, unquestionably his contributory negligence was immaterial. Appellants were not aware, so far as anything in the record shows, that decedent was between the cars, or was required to be between them. It merely showed that he was to uncouple and did uncouple the two cars from the rear of the slowly moving train. This was done, or could have been done, by a lever worked from the side of the car. Whether he had unnecessarily and negligently gone between the cars, or was negligently leaning his weight on the front car when he was doing the work, is not shown to have been known to either the conductor or engineer. Nor were they required to suspect it and to look out for it. One is not bound to anticipate that another may be negligent.
For the error indicated, the judgment is reversed, and the cause is remanded for a new trial.
Petition for modification by appellant overruled.