(dissenting). This action was brought in the court below by the defendant in error against the plaintiff in error. The former will be referred to as the “defendant,” and the latter as the “plaintiff.” The suit is under the Federal Employers’ Liability Act (chapter 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), for personal injuries alleged to have been received by the plaintiff by the negligence of the defendant. The injury caused the plaintiff’s entire loss of sight in one of his eyes, and the sight of the other was greatly impaired. The averments of his petition are substantially stated in the majority opinion. The defense pleaded was a general denial, and that the plaintiff was guilty of contributory negligence. The facts alleged as such contributory negligence are substantially as stated in the majority opinion, being, in effect: (1) That he should have reported the condition of the water glass first before trying to fix it; and (2) in not pursuing the proper course in fixing the water glass. The issues were found in the plaintiff’s favor by the jury, and, of course, the case stands here on the questions of law presented on the record.
[2] 1. The defendant, in this court, claims that the court below was *268without jurisdiction, and the plaintiff seeks to maintain the jurisdiction on the ground of diversity of citizenship, and, also, on the ground that a federal question is involved, the suit being under a federal statute. There is an averment that the “plaintiff resides in El Paso county, Tex.,” but that averment is wholly insufficient as an allegation of citizenship. To show the jurisdiction, as based on diversity of citizenship, the citizenship of the plaintiff should be alleged (not merely his residence) and that the defendant corporation was incorporated under the laws of a state (naming the state) other than that of which the plaintiff is a citizen. 4 Ency. U. S. Sup. Ct. Reps. 939; Knight v. Lutcher & Moore Lumber Co., 136 Fed. 404, 69 C. C. A. 248. For the petition to show jurisdiction under the Federal Employers’ Liability Act, it should aver that the injuries to the employe were sustained while the company was engaged, and the employé was employed, in interstate commerce. St. L. & San Francisco Ry. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129.
It may be that other parts of the record than the petition show jurisdictional facts—a matter of no moment at present, as the majority have reversed the judgment, and the petition may be so amended below as to remove all doubt as to jurisdictional averments.
2. The evidence tended to show that the water glass, an appurtenance or appliance of the engine and boiler, was out of order and leaking, and thát the screen that is placed around the water glass for the protection of the fireman, which is also an appurtenance, was not secured in the proper manner; that it should have been secured by set screws or lugs; that one of the lugs or screws had come out, and in its place a nail had been inserted; that the nail was not a secure fastening, but was loose, so that it could be pulled or pushed out by hand; and that the plaintiff was ignorant of the fact that the lug or screw had come out and the nail had been substituted; that there had not been such inspection by the defendant’s agents as to discover and repair the defect. The plaintiff’s own testimony showed what occurred at the instant of the explosion:
“When I saw the condition this glass was in, I thought I ought to fix it before we left, so I reached for the steam valve with one hand and started to turn it off. I was in the position I have indicated when I noticed a nail sticking through the screen around the water glass. I wondered what the nail was there for. It was a little in front of the glass. The screens are not attached, to the water gauge permanently, but are attached so as to move back and forth. As I turned the valve with one hand and pulled the nail out with the other, the screen flew apart and the glass burst, causing the accident. The screen around the glass is intended for the purpose of protecting the engineer and fireman. The screen shown me is as near a reproduction of the screen on the engine at the time of the accident as I could get. I have placed the gauge at about the height and position it was on the engine and have indicated the manner in which the nail was sticking in the screen. The screen is fastened with lugs'. It is placed around the glass and clamped together, and in order to take it off or put i't on, one has to use both hands. The screen protects the fireman and engineer from flying glass when the water glass breaks. I could not see just exactly where the nail was, as it ran behind the glass. I did not know that the nail was used for holding the screen together at the time I took it out, as all I could see was the nail sticking through the screen in front of the glass. I could not say whether or not there was any danger in the nail being in the position I found it, though it possibly might have broken the glass; but it had no business where it was.”
*269[3] The opinion of the majority holds that the trial court erred in refusing to give charge No. 2, which is as follows:
“You are instructed that if you believe from tbe evidence that the water shield incasing the water gauge was fastened with a nail, and you believe that the nail safely fastened it, so long as it was left alone, then, if you believe from the evidence that the plaintiff was negligent in pulling out the nail without first turning off the steam valve and the water valve and opening the drain cock, you are instructed to find for the defendant;”
The charge, in substance, is that, if the plaintiff was guilty of contributory negligence by the act described in the charge, “you are instructed to find for the defendant.” The effect of the charge was to instruct a verdict for the defendant if the plaintiff was guilty of contributory negligence. That the charge is so understood by this court is shown by its opinion that the charge “directly challenged the question of whether the plaintiff was guilty of negligencé,” etc.
In Winfree v. Nor. Pac. Ry. Co., 227 U. S. 296, 302, 33 Sup. Ct. 273, 274 (57 L. Ed. 518), the court said, in construing the act under which this suit is brought: “It introduced a new policy and quite radically changed the existing law.” The most radical departure made by the statute from former rules is in the total abolition of the doctrines of contributory negligence and assumption of risk, as formerly enforced by the courts, in all cases embraced by the statute, where the violation of any federal statute enacted for the safety of employés contributed to the casualty upon which the suit is based. Sections 3 and 4 of the act are as follows:
“Sec. 3. That in all actions hereafter brought against any such common carrier, by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé: Provided, that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.
“See. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.” 35 Stat. 65, 66.
These sections prevent the defense of contributory negligence from completely barring any action properly brought under the act. That defense can go no further than to diminish the damages in proportion to the amount of negligence attributable to the employé. But the effect of the proviso to section 3 is that, in cases where the violation by the carrier of any statute enacted for the safety of the employés contributed to the injury, the employé shall not be held to be guilty of contributory negligence so as to diminish the damages. That distinction, however, need not be emphasized, for the charge the trial judge refused was not that the employé’s contributory negligence diminished the damages, but that it completely barred the action. Th« *270instant suit, both by the petition and the proof, is shown to charge the violation of a statute enacted for the safety of employés. The statute violated is one “to promote the safety of employés,” etc., and the second section provides:
“See. 2. That from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this Act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.” Act Feb. 17, 1911, c. 103, 36 Stat. 913 (U. S. Comp. St Supp. 1911, p. 1333).
It seems plain that if the trial judge had given the instruction asked —that the negligent act described in the charge, if found to have been committed, entitled the defendant to a verdict—he would have disregarded the statute under which the suit was brought, and which it was his duty to enforce.
[4] 3. There can be no doubt that the defective condition of the appliances—the leaking of the water glass and the substitution of a nail for a set screw or lug in the screen—was the proximate cause of the accident. As to whether the negligence of the defendant in permitting such defects in its engine was the proximate cause of the injury was a question of fact in this case, and it was found in the affirmative by the jury. The original wrong must be considered as reaching to the effect, and proximate to it. The original wrong was the furnishing to the plaintiff a defective and dangerous engine.
“Tbe question is not what cause was nearest in time or place to the catastrophe. * * * The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation.” Insurance Co. v. Boon, 95 U. S. 117, 130 (24 L. Ed. 395).
Defective appliances would not often cause injury to tlie servant .unless he tried tp use them. If he is guilty of contributory negligence in the use of them, in the absence of statutes abolishing or limiting that defense, it might be a bar to the action; but that defense, as we have seen, is not permissible in this case.
[5] 4. But if the controlling statutes be disregarded, the judgment cannot be reversed on the exception as taken, without disregarding the rules of procedure heretofore considered controlling. The bill of exceptions shows that the court was requested to give “the three following special charges,” copying them as numbered separately. The court gave the third charge, but refused to give those numbered 1 and 2. The charge numbered 1, so far as the majority opinion shows, was properly refused, for it is not decided that it should have been given. The exception was taken to the refusal to give the two charges, Nos. 1 and 2.
“And be it further remembered,” tbe bill of exceptions reads, “that tbe eonrt refused to give special charges Nos. 1 and 2 so requested; and defendant excepted to tbe ruling of the court in refusing said special charges.”
*271Under the rule, unless both charges were such as should have been given, the judgment should not be reversed for refusing them!
“Where a general exception is taken to the refusal of a series of instructions, it .will not be considered if any one of the propositions is unsound.” Union Pacific Ry. Co. v. Callaghan, 161 U. S. 91, 95, 16 Sup. Ct. 493, 495 (40 L. Ed. 628); Newport News & Mississippi Valley Co. v. Pace, 158 U. S. 36, 15 Sup. Ct. 743, 89 L. Ed. 887; 2 Ency. U. S. Sup. Ct. Reps. p. 101 and notes.
It is only by disregarding this well-established rule that the judgment could be reversed.