Thompson v. Chicago, M. & St. P. Ry. Co.

Decision Date23 November 1900
Docket Number253.
PartiesTHOMPSON v. CHICAGO, M. & ST. P. RY. CO. et al.
CourtU.S. District Court — District of Nebraska

J. L Kaley, for plaintiff.

John C Cowin and T. J. Mahoney, for defendant.

MUNGER District Judge.

This is an action brought by plaintiff, as administratrix of the estate of one Edward J. Thompson, deceased. The petition alleges that the plaintiff and one William J. Thompson were married in November, 1881, and that the deceased was the fruit of said marriage; that said Edward J. Thompson was, at the time of his decease, 14 years of age; that William J Thompson, the husband of the plaintiff, more than 10 years prior to the bringing of the action, wrongfully deserted herself and family, had been absent from them since that time, and had furnished no sustenance or support for them, or either of them; that the deceased was a strong, healthy capable, and obedient child; that for several years next preceding his death he rendered to plaintiff much and valuable service and assistance, and earned wages; that she was wholly dependent upon him for support, except such support as she received from her own efforts; that deceased had constantly improved in capacity and usefulness in rendering assistance to her, and would have continued to do so had he lived, and that he devoted all his earnings, and at all times gave his best efforts, in rendering all the aid and assistance to plaintiff in his power, up to the time of his death, and would have continued to do so, not only until he reached his majority, but thereafter as well, had he lived. Plaintiff in her petition further alleges that said Edward J. Thompson was, on the 20th day of January, 1898, killed by certain acts on the part of the agents and employes of the defendants, which said acts constituted negligence upon the part of the defendants of such a nature and character that, had the said Edward J. Thompson lived, he would have been legally entitled to recover damages from said defendants for the injuries which he sustained by reason of said negligent acts specifically alleged to have been committed by the defendants; that on the 26th day of April, 1898, plaintiff was by the county court of Douglas county, Neb., duly appointed administratrix of the estate of Edward J. Thompson, deceased. The petition further alleges that plaintiff is the mother and next of kin of said deceased, and that she has sustained damages by reason of the death of said deceased in the sum of $5,000, for which she prays judgment. The answer of the several defendants denies the acts of negligence charged against them, denies that plaintiff is the next of kin of deceased, and further denies that plaintiff or the next of kin has sustained any damage by reason of the death of said Edward J. Thompson.

The cause came on for trial upon the issues joined. Testimony was introduced on the part of the plaintiff, which, in substance, established the fact that the death of deceased was caused by the negligent acts of the defendants, as stated in the petition. The evidence further established the fact that William J. Thompson, father of deceased, was at the time still living; that for more than 10 years prior thereto he deserted plaintiff and his child, the deceased, had wholly failed to contribute to the support of either his wife or child, and during said time had not visited or communicated with them. At the close of plaintiff's evidence the court directed the jury to return a verdict for the defendants, on the ground that the action was one brought under the provisions of chapter 21, Comp. St. Neb. 1897, under which statute the action could only be maintained for the pecuniary loss which the next of kin to deceased had sustained by reason of his death; that under the statutes of Nebraska the father was the next of kin and only heir of deceased; that, under the allegations contained in the petition and the evidence in support thereof, it conclusively appeared that the father, the next of kin, had not sustained any pecuniary loss for which a recovery could be had, under the provisions of the statute. Plaintiff has filed a motion for a new trial, and challenges the correctness of the rule of law thus announced to the jury in directing a verdict.

In support of the motion for a new trial, it is strenuously argued that, to maintain an action under this statute, it is only necessary to allege and show that the death was caused by acts upon the part of the defendants of such a character as would have entitled the deceased to recover had he lived, and that upon his death he left next of kin. It is further argued that the father, being next of kin, was entitled to the services and earnings of deceased, and hence entitled to recover such sum as the jury should deem a fair and just compensation therefor. If plaintiff's contention as to the law in this respect is correct, and numberous authorities are cited in support thereof, then a new trial should be granted. If, however, the rule as announced by the court is the correct rule in this jurisdiction, then the motion for a new trial should be denied.

The present action, being one unknown at common law (Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580; Sullivan v. Railroad Co. (C.C.) 2 Fed. 447), but based upon the state statute, the decisions of the supreme court of this state construing the statute are binding upon this court. This being an action at law, the rules of pleading and practice, as announced by the supreme court of the state, also govern this court. The statute of the state which is the basis for the present action has been construed in...

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  • Swift & Co. v. Johnson
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    ...allege facts showing an actual pecuniary interest in the life of the decedent and a consequent loss by reason of his death. [Thompson v. Railroad, 104 F. 845; Greenwood v. King, 82 Neb. 17, 116 N.W. Orgall v. C. B. & Q. Ry. Co., 46 Neb. 4.] No such distinction obtains here and in view of th......
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