Statement of the Case.

were at the time of their trial and conviction native and bona fide citizens."

This is the earliest suggestion of the existence of a Federal question in the cause. After the application for a rehearing had been disposed of, the defendants, as is stated in a bill of exceptions, "gave notice in open court of an appeal to the Supreme Court of the United States of America, and requested that the same be entered upon the minutes of this court, which action this court then and there refused," and defendants excepted.

A petition for a writ of error from this court was then presented and allowed by the presiding judge of the Court of Appeals. The petition set up in substance the same grounds which subsequently appeared in the assignment of errors, and averred that upon the trial there was "drawn and called in question the construction of certain clauses of the Constitution of the United States, and the decision of said cause was adverse and against the rights, privileges, immunities and exemptions so especially set up and claimed under those clauses of the said Constitution of the United States."

The errors assigned here are that the indictment was drawn under a certain act of the legislature of Texas, passed March 26, 1881, which was repugnant to the Fifth Amendment, and in contravention of the Fourteenth Amendment to the Constitution of the United States; that the indictment, if charging any offence, charged no higher one than that of murder in the second degree, the punishment for which under the Penal Code was imprisonment for a term of years, and, in the punishment inflicted, plaintiffs in error were not accorded due process of law, nor the equal protection of the laws; that the action of the Court of Appeals in relation to the disqualification of the juror was in contravention of the Sixth Amendment to the Constitution of the United States, and deprived plaintiffs in error of their lives without due process of law, in violation of the Fourteenth Amendment; that the inspection of the person of one of the plaintiffs in error, and evidence of the results of such inspection, was in contravention of the Fifth Amendment, and not due process of law within the

Opinion of the Court.

Fourteenth Amendment; and that the denial of the right of appeal was a denial to plaintiffs in error of rights guaranteed to them by the Constitution of the United States and the Fourteenth Amendment thereof.

Upon the argument, although no error was assigned in relation thereto, it was contended that the Penal Code and the Code of Criminal Procedure of Texas were not properly enacted, either in whole or in part, under the constitution of Texas in that behalf.

Mr. William S. Flippin and Mr. G. P. M. Turner for plaintiffs in error.

Mr. R. H. Harrison for defendant in error.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

It must be regarded as settled that a petition for a writ of error forms no part of the record upon which action here is taken; Manning v. French, 133 U. S. 186; Clark v. Pennsyl vania, 128 U. S. 395; Warfield v. Chaffe, 91 U. S. 690; Butler v. Gage, 138 U. S. 52: That to give this court jurisdiction to review the judgment of a state court under section 709 of the Revised Statutes, because of the denial by the state court of any right, title, privilege or immunity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege or immunity was specially set up or claimed at the proper time. and in the proper way; Spies v. Illinois, 123 U. S. 131, 181; Baldwin v. Kansas, 129 U. S. 52; Chappell v. Bradshaw, 128 U. S. 132: That whether statutes of a legislature of a State have been duly enacted in accordance with the requirements of the constitution of such State, is not a federal question, and the decision of state courts as to what are the laws of the State is binding upon the courts of the United States; South Ottawa v. Perkins, 94 U. S. 260, 268; Post v. Supervisors, 105 U. S. 667; Norton v. Shelby County, 118 U. S. 425, 440; Railroad Co. v. Georgia, 98 U. S. 359, 366; Baldwin v. Kansas, 129 U. S. 52, 57: That by the Fourteenth Amendment the

Opinion of the Court.

powers of States in dealing with crime within their borders are not limited, except that no State can deprive particular persons, or classes of persons, of equal and impartial justice under the law; that law in its regular course of administration through courts of justice is due process, and when secured by the law of the State the constitutional requirement is satisfied; and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the estab lished principles of private right and distributive justice. Hurtado v. California, 110 U. S. 516, 535, and cases cited.

In view of these repeatedly adjudicated propositions, we do not care to discuss at length the points urged by plaintiff in error. Our jurisdiction in this class of cases is properly invoked by writ of error, not by appeal. The validity of the enactment of the Texas codes is not open to inquiry. In re Duncan, ante, 449.

The sufficiency of the indictment, the degree, of the offence charged, the admissibility of the testimony objected to, and the alleged disqualification of the juror because he was not a freeholder, were all matters with the disposition of which, as exhibited by this record, we have nothing to do.

We find nothing special, partial or arbitrary or in violation of fundamental principles in the criminal laws of the State of Texas, involved, and we perceive no ground for holding that the proceedings complained of, which were had in the ordinary administration of those laws, amounted to a denial by the State of due process of law to these parties, or of some right secured to them by the Constitution of the United States. In re Kemmler, 136 U. S. 436, 449; Caldwell v. Texas, 137 U. S. 692. Although no right, title, privilege or immunity was specially set up or claimed at the proper time and in the proper way, and no Federal question was passed upon by the state courts or raised, except by the general averment in the petition for rehearing that the indictment was so defective that it, or the statute which authorized it, contravened the Constitution, yet, as full argument was permitted at the bar, upon the assumption that the writ of error was providently issued, we will instead of dismissing the writ, affirm the judgment. Judgment affirmed.

Opinion of the Court.

DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY v. CONVERSE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.

No. 228. Argued March 18, 19, 1891.- Decided March 30, 1891.

The court may withdraw a case from the jury, and direct a verdict for plaintiff or defendant, as the case may be, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it.

The severing of a train of cars in motion on a railroad in the night time, leaving a part, uncontrolled except by ordinary brakes, to run across a public highway at grade, without warning by either flagman, bell, whistle or in some other effective way, that they were approaching, is a disregard of the rights of persons using the highway, and it justified the court in saying, as matter of law, that it constituted negligence on the part of the railroad company, for which the plaintiff could recover unless he had been guilty of contributory negligence.

The instructions of the court properly submitted to the jury the question whether the plaintiff was guilty of contributory negligence; and, the jury having passed upon that issue, this court cannot review their finding. The rulings of the court admitting or refusing to admit evidence on sundry points were no error, having rightly held the defendant guilty of negligence, leaving the jury to determine whether the plaintiff was guilty of contributory negligence.

THE case is stated in the opinion.

Mr. J. D. Bedle for plaintiff in error.

Mr. James B. Vredenburgh for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

The object of this action is to recover damages for injuries, in person and property, alleged to have been sustained by the defendant in error (who was the plaintiff below) in consequence of the negligent manner in which the cars of the plaintiff in error were operated on the occasion when such injuries were

Opinion of the Court.

received. The jury returned a verdict against the railroad company for $14,000. That amount being regarded by the court as excessive, the plaintiff remitted all of it except seven thousand five hundred dollars; and judgment was entered for the latter sum.

While there was some conflict in the evidence relating to certain matters, the following facts were clearly established: The plaintiff at the time of the injuries in question, and for ten years previous thereto, was the county physician of Hudson County, New Jersey. In the discharge of his duties, he went daily from Jersey City to the County Farm on which were located a penitentiary, insane asylum, and almshouse belonging to the county, and which were reached by a public road crossing the Boonton Branch of the Delaware, Lackawanna and Western Railroad at Secaucus station in the vicinity of the County Farm. That road, commonly called the county road, is built through meadow lands which are unoccupied, except as they have been appropriated and used for the purposes of the railroad company. There is, substantially, no travel upon it except by those going to and from the County Farm. About a half-dozen wagons or vehicles on an average pass over the crossing every night. The road is from twenty-five to thirty feet in width and macadamized, and without a fence upon either side of it. At the crossing in question there are two main tracks of the railroad, one called the east-bound and the other the west-bound track, and five other tracks, two on the south side of the east-bound track, and three on the north side of the west-bound track.

The plaintiff, on the 13th day of March, 1886, went from Jersey City to the County Farm, over this county road, in a four-wheel buggy or phaeton, having a top or hood that could be let down or raised. He reached the County Farm, crossing the railroad tracks at Secaucus station, between 6 and 7 o'clock in the evening of that day, and started back to Jersey City about 8 o'clock. As he approached the station, on his return, sitting in his buggy, with the top up, and moving at an easy gait, he observed, about fifteen minutes after 8 o'clock, at a distance of one hundred feet or less, a train of freight cars,