
    196 F. 328
    COPPER RIVER & N. W. RY. CO. et al. v. PHILLIPS.
    No. 1,941.
    Circuit Court of Appeals, Ninth Circuit.
    May 6, 1912.
    
      W. H. Bogle, F. T. Merritt, Lawrence Bogle, and Robert C. Saunders, all of Seattle, Wash., for plaintiffs in error.
    E. E. Ritchie, of Valdez, Alaska, L. V. Ray, of Seward, Alaska, and Wm. A. Barnhill, of Los Angeles, Cal., for defendant in error.
    Before GILBERT and MORROW, Circuit Judges, and HANFORD, District Judge.
   MORROW, Circuit Judge

(after stating the facts as above).

The parties will be designated as in the court below.

The defendant company contends that the amended complaint did not state facts sufficient to constitute a cause of action against it. This objection was made by the defendant company in the court below by a general demurrer to the amended complaint, which was overruled. The defendant Hasey did not join in this objection, and the defendant company did not stand on its demurrer, or answer by leave of the court.

Section 91 of the Alaska Code of'Civil Procedure (31 Stat. 346) provides that: “After the decision upon a demurrer, if it be overruled, and it appears that such demurrer was interposed in good faith, the court may, in its discretion, allow the party to plead over upon such terms as may be proper.”

The defendant did not ask or obtain leave to plead over, but answered the original and amended complaint without leave and presented the issues of fact upon which it asked the court to determine the case on the merits. The general rule is that this amounts to a waiver of the objection to the complaint. Teal v. Walker, 111 U.S. 242, 246, 4 S.Ct. 420, 28 L.Ed. 415; Southern Pacific Co. v. Denton, 146 U.S. 202, 206, 13 S.Ct. 44, 36 L.Ed. 942; Bauserman v. Blunt, 147 U.S. 647, 652, 13 S.Ct. 466, 37 L.Ed. 316; Rush v. Newman, 58 F. 158, 7 C.C.A. 136; Board of Com’rs v. Sherwood, 64 F. 103, 105, 11 C.C.A. 507. But passing the question of waiver as technical, did the amended complaint state facts sufficient to constitute a cause of action?

It is alleged in the amended complaint: “That plaintiff undertook to walk peaceably and lawfully through said Keystone Canyon; that he was lawfully in said canyon, and as he was walking quietly and peaceably through the same a short distance inside the western entrance thereto, the said Edward C. Hasey, then and there acting for said Copper River & Northwestern Railway Company and under its order, * * * fired several shots from a repeating rifle loaded with powder and balls towards the plaintiff; * * * that the said Hasey continued to fire said rifle towards plaintiff, and one of the bullets so fired by said Hasey from the said rifle struck plaintiff in the right hip below the pelvic bone.”

It is objected that the allegation of the complaint that the firing by Hasey was done under the orders of the defendant company is a mere conclusion of the pleader and must be construed with reference to the other allegations of the complaint alleging that Hasey was ordered and instructed to employ any necessary force to prevent objectionable persons from passing over the right of way and grade in Keystone Canyon; that it is not alleged that plaintiff was passing over the grade in Keystone Canyon, or that he was attempting to do so, but, on the contrary, it is alleged that plaintiff had undertaken to walk peaceably and lawfully through the canyon, and upon being fired upon by Hasey he had started to retreat therefrom; that the firing upon plaintiff by Hasey under such circumstances was not within the scope of his alleged employment. The objection that Hasey was not authorized to protect the grade and right of way from persons not passing over it or attempting to pass over it, and that he was not authorized to shoot persons running away from it, is altogether a too technical construction of the allegations of the complaint. It ignores the allegation that the defendant company had dispatched and caused to be delivered to the defendant Hasey in said Keystone Canyon several repeating rifles and a large quantity of ammunition for the same. It is this allegation, coupled with the firing upon the plaintiff by Hasey, that gives color and character to the entire amended complaint. The passing over the fight of way and grade was to be prevented by the use of rifles charged with powder and ball. What could such an equipment mean if it was not to stop the approach of persons and prevent them from passing over the right of way and grade of the defendant company in the Keystone Canyon? It was an occupation of the canyon by the defendant company to the exclusion of all persons and companies by force Besides, it is distinctly alleged as a fact that the defendant Hasey was then and there — that is to say, while he was shooting at plaintiff and others of his company, whether advancing or retreating — acting for said defendant company and under its order. We think this is sufficient and that the complaint stated facts sufficient to constitute a cause of action against the defendant company.

It is next contended that, while it does appear from the evidence that plaintiff was on the right of way and grade of the defendant company at the time of the shooting, it further appears that he was there in company with some 250 associates engaged in a criminal trespass and in riotously attempting to dispossess appellant of its property, and that his injuries were proximately provoked and caused by his own illegal and criminal acts. There is in the record evidence tending to show that the purpose of the employees of the Alaska Home Railway Company in going into the canyon was to work upon the grade of that company projected into the Keystone Canyon, which they had a lawful right to do under the act of Congress of May 14, 1898, extending the homestead laws and providing for right of way for railroads in the district of Alaska (30 Stat. 409, 410). This act provides, in section 3 (48 U.S. C.A. § 412), as follows: “That any railroad company whose right of way, or whose track or roadbed upon such right of way, passes through any canyon, pass, or defile, shall not prevent any other railroad company from the use and occupancy of said canyon, pass, or defile, for the purposes of its road, in common with the road first located, or the crossing of the other railroads, at grade. * * * ”

Whether the advance into the canyon by the employees of' the Alaska Home Railway Company was such a peaceful movement as this statute contemplates was a question of fact for the jury to be determined upon the evidence under such appropriate instructions as the court might give. The court did instruct the jury upon the various phases of the testimony relating to the facts in controversy, and no exceptions were taken to such instructions, and no errors are assigned as to the admission of the testimony. We must assume the most .favorable statement of the plaintiff’s case to be true, unless some particular request for instructions makes it'necessary to deal with conflicting evidence. Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 469, 23 S.Ct. 622, 47 L.Ed. 905. The most favorable statement of the plaintiff’s case upon the evidence is that the advance or movement into the canyon in which he was employed was peaceable as alleged in the amended complaint.

In a case of this character, this court is confined in its review to the consideration of exceptions taken at the trial to the admission or rejection of evidence and to the charge of the court and its refusal to charge. We have no concern with questions of fact or the weight to be given to the evidence which was properly admitted. Ætna Life Insurance Co. v. Ward, 140 U.S. 76, 91, 11 S.Ct. 720, 35 L.Ed. 371; Erie Railroad Co. v. Winter, 143 U.S. 60, 75, 12 S.Ct. 356, 36 L.Ed. 71.

Finding no reversible error in the record, the judgment of the court below is affirmed.  